Tittle v. Corso

¶1dissenting.

¶2I respectfully dissent to Division 1 of the majority opinion as I find a genuine issue of material fact remains as to whether Corso acted with actual malice.

¶3Summary judgment is properly granted where the evidence, including the pleadings and depositions, shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.14 The respondent should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion.15

¶4During his deposition, Russell Tittle testified that when Corso lifted him up, he was scared, “because he told me if I fucking moved, he’d blow my head off.” Tittle further deposed that when he tried to explain to Corso about the muffler, Corso said, “Shut up. I’m in control.” According to Tittle, after Corso finished using the radio, he grabbed Tittle, picked him up, walked him over to the police car, slammed him down on the hood, and said, “If you fucking move, I’ll put my dog on you, and he’ll eat you up.” He also said, “There’s going to be more officers here, . . . and they’re going to treat you worse than I did.” Two officers arrived, and Tittle testified that he overheard Corso comment that he had not brought his dog. “So all this time I’m thinking he was going to have his dog eat me up, and he never even had a dog,” Tittle deposed.

¶5Actual malice, in the context of official immunity, is defined simply as a “deliberate intention to do wrong.”16 It has long been held in criminal law that the intention with which an act is done is peculiarly a matter for the jury to decide.17 In the case at bar, the evidence, when construed most favorably to the Tittles, permits an inference that Corso acted with malice.181 believe that actual malice can be inferred from the use of profane, opprobrious language, particularly when coupled with threats, a display of force, and a drawn weapon. In the final analysis, it is for a jury, not an appellate court, to weigh the evidence in this case and determine whether Corso “deliberately intended to do wrong.” Accordingly, I would reverse the grant of summary judgment to Corso.

¶6I am authorized to state that Chief Judge Blackburn and Judge Miller join in this dissent.