
    Chrysinger, Appellant, v. Decatur et al., Appellees.
    (No. 81AP-609
    Decided January 14, 1982.)
    
      Mr. Samuel I. Kanter, for appellant.
    
      Messrs. Frost, Freytag & Hunter, Mr. Robert E. Frost and Mr. Thomas D. Hunter, for appellee Donald Decatur.
   Reilly, J.

This is an appeal from a judgment of the Court of Common Pleas of Franklin County.

Summary judgment was entered for defendant-appellee, Donald Decatur. The judgment entry reads as follows:

“This cause came before the court on the Motion of defendant, Donald Decatur, for summary judgment pursuant to Rule 56 of the Ohio Rules of Civil Procedure. The court, having considered the pleadings, motion and memoranda filed by counsel as well as all other materials properly before it pursuant to Rule 56(C) of the Ohio Rules of Civil Procedure, finds that the defendant’s Motion for Summary Judgment is well taken and should be granted. It is, therefore,
“ORDERED, that judgment be and hereby is entered in favor of defendant, Donald Decatur, and against the plaintiff at plaintiffs cost. This is a final ap-pealable order.”

The record shows that plaintiff-appellant Joe Chrysinger filed a complaint on behalf of his son Joey Chry-singer, alleging that defendant committed battery with malice on his said child. The. Columbus Board of Education was also a party to this action, but was subsequently dismissed.

Plaintiff has now perfected this appeal, including the following assignment of error:

“The Plaintiff-Appellant for his assignment of error says that the decision granting Summary Judgment to defendant, Donald Decatur, in the Court of Common Pleas of Franklin County, Ohio, was erroneous in that it was an abuse of judicial discretion.”

It is noted at the outset that Civ. R. 56(C) reads in part:

“* * * Summary judgment shall be rendered forthwith if the pleading, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from such evidence or stipulation and only therefrom, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to have the evidence or stipulation construed most strongly in his favor. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.”

The complaint in this case, as noted above, alleges a battery. Basically, a battery involves intentionally causing physical harm to another unlawfully. The affidavits of Joey Chrysinger and his mother quoted herein are sufficient, construing the evidence most strongly for plaintiff, to establish the first two elements, namely, intentionally causing physical harm to another.

The affidavit of Ethel M. Chrysinger reads as follows:

“I, Ethel M. Chrysinger, having been first duly sworn according to law depose and say:
“1. I am the mother of Joey Chry-singer, the minor on whose behalf the above mentioned case was filed by. his father, Joe Chrysinger, in the Common Pleas Court of Franklin County:
“2. I have personal knowledge of the information contained in this affidavit;
“3. When Joey Chrysinger, Jr., my son, came home from school on November 14, 1979, he told me that the principal paddled him, and that it hurt so bad that he, Joey, couldn’t sit down without having a lot of pain. When I looked at his buttocks, they were badly bruised with blisters. I called Marge Green, our social worker. She came over, and the three of us went to the Emergency Room at Children’s Hospital, where Joey was treated.
“Further Affiant sayeth not.”

Further, Joey Chrysinger stated in his affidavit, the following:

“I, Joey Chrysinger, having been duly sworn according to law, depose and say:
“1. I am the minor on whose behalf the above captioned case was filed in the Common Pleas Court of Franklin County;
“2. I have personal knowledge of the information contained in this affidavit;
“3. On about November 14, 1979, Mr. Donald Decatur, the defendant, asked me to come into his office at Everett Junior High School. I was outside when he called me. When I got in the office, he hit me three times with a wooden paddle. After the second hit, I started crying. After the third hit, Mr. Decatur said that if I didn’t like that, there was more where that came from. I was in a lot of pain after he hit me. Then, he took me back to my class and made me sit down. It was very painful for me to sit, and I tried to sit sideways. When I went to the restroom at school on that day, I saw that my buttocks and the back of thighs, down about half way to my knees, were red. When I got home from school, my mother and Marge Green took me to the Emergency Room at Children’s Hospital. The next day my buttocks were green. For at least a week afterwards, I wasn’t able to lie on my back.
“Further Affiant sayeth not.”

Consequently, for purposes of summary judgment, the question becomes whether defendant’s actions were unlawful. The applicable statute, R.C. 3319.41, provides in pertinent part:

“A person employed or engaged as a teacher, principal, or administrator in a school, whether public or private, may inflict or cause to be inflicted, reasonable corporal punishment upon a pupil attending such school whenever such punishment is reasonably necessary in order to preserve discipline while such pupil is subject to school authority. * * *” (Emphasis added.)

Thus, the focus is whether, construing the evidence most strongly for plaintiff, the force used was unreasonable. The crux of the matter at this stage is whether reasonable minds could differ as to whether defendant used excessive force. The above quoted affidavits present an issue of fact on this basic proposition. Thus, applying Civ. R. 56(C), the issue could not be decided as a matter of law.

For instance, considering the foregoing affidavits, plaintiff could not lie on his back for one week, had large and multiple bruises of dark color, as well as blisters, and was in such pain that he started crying after the second hit with a paddle in the principal’s office. In short, plaintiff has presented by the pleadings and affidavits, a genuine issue of material fact as to the excessiveness or unreasonableness, and, therefore, unlawfulness of defendant’s use of force. Such factual issue, of course, might not ultimately be resolved in plaintiffs favor.

In addition, the presence of actual malice is not material to the alleged battery offense and is only relevant as to punitive damages. The Supreme Court in Pickle v. Swinehart (1960), 170 Ohio St. 441 [11 O.O.2d 199], indicated that to recover punitive damages, actual malice must be shown. This issue, however, must be determined upon the trial of the case.

Accordingly, for the foregoing reasons, plaintiff’s assignment of error is well taken and sustained. The judgment is reversed and remanded for further proceedings consistent with this decision and in accordance with law.

Judgment reversed and cause remanded.

Whiteside and McCormac, JJ., concur.  