Srokowski v. Shay , 2014 Ohio 3145 ( 2014 )

[Cite as Srokowski v. Shay, 2014-Ohio-3145.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100739
TED SROKOWSKI
PLAINTIFF-APPELLEE
vs.
MICHAEL SHAY, ET AL.
DEFENDANTS-APPELLANTS
[Appeal by City of Cleveland]
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-13-803051
BEFORE: Kilbane, J., Celebrezze, P.J., and E.A. Gallagher, J.
RELEASED AND JOURNALIZED: July 17, 2014
ATTORNEYS FOR APPELLANT
Barbara A. Langhenry
Director of Law
City of Cleveland - Law Department
William M. Menzalora
Chief Assistant Director of Law
Alejandro Corts
Aikaterini Houston
Assistant Directors of Law
601 Lakeside Avenue - Room 106
Cleveland, Ohio 44114
ATTORNEYS FOR APPELLEE
Brendan Delay
Ann F. Dewerth
24500 Center Ridge Road - Suite 160
Westlake, Ohio 44145
Also Listed:
For McNulty’s Bier Markt, Bar 25, L.L.C.
Michelle L. Gorman
200 Stanton Boulevard - Suite 100
Steubenville, Ohio 43952
For Michael Shay
James L. Glowacki
James J. Imbrigiotta
Glowacki & Imbrigiotta, L.P.A.
7550 Lucerne Drive - Suite 408
Middleburg Heights, Ohio 44130
MARY EILEEN KILBANE, J.:
{¶1} This interlocutory appeal arises from a complaint filed by plaintiff-appellee
Ted Srokowski (“Srokowski”) against the City of Cleveland (“Cleveland” or “the City”),
various Cleveland police and corrections officers, McNulty’s Bier Markt, Bar 25, L.L.C.
(“Bier Markt”), and Bier Markt employees, for injuries sustained in the course of an
arrest. The City appeals from the order of the trial court that dismissed approximately 14
of Srokowski’s claims for relief, but denied the motion to dismiss as to Srokowski’s
claims for negligent infliction of emotional distress and negligence. In light of our duty
when reviewing a motion to dismiss filed pursuant to Civ.R. 12(B)(6), to accept as true all
material allegations of the complaint and make all reasonable inferences in favor of
Srokowski, we conclude that the trial court properly held that it does not appear beyond
doubt that the plaintiff can prove no set of facts in support of his claim for negligent
infliction of emotional distress and negligence. Therefore, we affirm the order insofar as
it denied the City’s motion to dismiss as to these two claims for relief.
{¶2} On March 14, 2013, Srokowski filed a complaint against Cleveland Police
Officer Michael Shay (“Shay”), individually and in his official capacity, two other
unknown Cleveland police officers in their official capacities, an unknown correction
officer, the City, the Bier Markt, and an employee of the Bier Markt. As is relevant
herein, Srokowski alleged that Shay and John Doe I “were at all times relevant herein[,
detectives] of the Cleveland Police Department and acting under the color of law,” and
were “providing security for McNulty’s Bier Markt as a Cleveland Police Officer,” and
that:
8. At all times relevant herein, the named individual Defendants Michael
Shay, John Does I and II, and John/Jane Doe III, were acting in an official
capacity as employees and/or agents of their employer and the conduct the
subject of this action occurred within the scope of their duties.
***
16. Plaintiff Ted Srokowski fell asleep at a basement booth [at the Bier
Markt.]
17. Defendant Michael Shay, who was wearing a Cleveland Police
Department uniform, was providing security for the Bier Markt.
18. At approximately 1:50 a.m., 40 minutes before closing time,
Defendant Shay grabbed Plaintiff Ted Srokowski, who was * * * asleep in
the booth, dragged him across the floor, forcibly threw Plaintiff Ted
Srokowski to the ground and smashed his face into the floor.
19. Defendant Shay and John Doe I handcuffed Srokowski and repeatedly
banged Mr. Srokowski’s head into the cement after he was handcuffed,
injuring his head and face.
***
30. Plaintiff Ted Srokowski was secreted away from his family and then
held prisoner in an upstairs room of the Bier Markt until more officers came
to get him to take him outside [and then transported him to jail].
{¶3} Srokowski set forth a total of 18 claims for relief, including claims against
the City for assault, battery, deprivation of civil rights and excessive force, false
imprisonment, negligence, negligent and intentional infliction of emotional distress, civil
conspiracy, spoliation of evidence, abuse of process, defamation, and invasion of privacy,
negligent hiring, training, supervision and discipline of officers, negligent failure to
provide medical treatment, and respondeat superior. He also set forth claims against the
individual police officers for willful, wanton, malicious, and reckless conduct, as well as
claims against the Bier Markt and its employees.
{¶4} On June 17, 2013, the City filed a motion to dismiss pursuant to Civ.R.
12(B)(6), claiming that it is entitled to immunity pursuant to R.C. Chapter 2744. In
opposition, Srokowski argued that the complaint was sufficient for purposes of notice
pleading, and that it alleged that the officers’ conduct was malicious, wanton and
reckless.
{¶5} On November 12, 2013, the trial court granted the City’s motion to dismiss
in part, and denied it in part in an order that stated:
[T]he only applicable exception to immunity in this fact pattern is whether
the “negligent acts of an employee with respect to proprietary functions of
the political subdivision” caused the injury. Due to the nature of defendant
Shay’s employment at the time of the incident, a police officer serving as a
security guard at a private establishment, it is unclear whether or not he was
acting in a governmental or proprietary function. Normally, provision of
police services is a governmental function. However, an action is a
proprietary function if it “promotes or preserves the public peace and
involves activities that are customarily engaged in by nongovernmental
persons.” Since defendant Shay was providing private security, he may
have been acting in a propriety function. The city * * * argues that if
defendant Shay was engaged in a governmental function there is no
exception to immunity that would serve to remove immunity from the city,
and if the action was proprietary then the actions of the officer were not
plead as negligence, but as intentional actions, and therefore the city is
immune. As there are insufficient facts to determine if Officer Shay was
acting pursuant to a governmental or proprietary function, only those
allegations of intentional torts may be dismissed against the city.
Claims against all other defendants remain pending in their entirety. ***
Plaintiff’s claims of negligent infliction of emotional distress and
negligence remain against the city only to the extent that the alleged injury
was caused by the city’s employee in the performance of a proprietary
function.
{¶6} The City appeals, and assigns the following error for our review:
The trial court improperly denied the City of Cleveland’s right to immunity
under R.C. 2744.02(A)(1). Because Officer Michael Shay was engaged in
a “governmental function” as defined by R.C. 2744.01 to include “[t]he
provision of nonprovision of police * * * services or protection,” the City is
immune from Plaintiff’s negligence and negligent infliction of emotional
distress claims.
{¶7} The City argues that the complaint in its entirety fails to state a claim
against the City because, as a matter of law, Shay and the other City defendants were
acting in a governmental function at the time of the incident.
Standard of Review
{¶8} On appeal, this court applies the de novo standard of review in ruling upon
a trial court’s ruling on a motion to dismiss under Civ.R. 12(B)(6) for failure to state a
claim. Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79, 2004-Ohio-4362, 814 N.E.2d
44, ¶ 5, citing Cincinnati v. Beretta U.S.A. Corp., 95 Ohio St.3d 416, 2002-Ohio-2480,
768 N.E.2d 1136. Under this standard of review, we must independently review the
record and afford no deference to the trial court’s decision. Herakovic v. Catholic
Diocese of Cleveland, 8th Dist. Cuyahoga No. 85467, 2005-Ohio-5985, ¶ 13.
{¶9} Pursuant to Civ.R. 12(B)(6), a complaint is not subject to dismissal for
failure to state a claim upon which relief may be granted unless it appears beyond doubt
that the plaintiff can prove no set of facts in support of his or her claim that would entitle
the plaintiff to relief. Doe v. Archdiocese of Cincinnati, 109 Ohio St.3d 491,
2006-Ohio-2625, 849 N.E.2d 268, ¶ 11, citing O’Brien v. Univ. Community Tenants
Union, Inc., 42 Ohio St.2d 242, 327 N.E.2d 753 (1975). Therefore, “[a]s long as there is
a set of facts, consistent with the plaintiff’s complaint, which would allow the plaintiff to
recover, the court may not grant a defendant’s motion to dismiss.” York v. Ohio State
Hwy. Patrol, 60 Ohio St.3d 143, 145, 573 N.E.2d 1063 (1991).
{¶10} In resolving a Civ.R. 12(B)(6) motion, a court’s factual review is confined
to the four corners of the complaint. Grady v. Lenders Interactive Servs., 8th Dist.
Cuyahoga No. 83966, 2004-Ohio-4239, ¶ 6. Within those confines, a court accepts as
true all material allegations of the complaint and makes all reasonable inferences in favor
of the nonmoving party. Fahnbulleh v. Strahan, 73 Ohio St.3d 666, 667,
1995-Ohio-295, 653 N.E.2d 1186. “[A]s long as there is a set of facts, consistent with
the plaintiff’s complaint, which would allow the plaintiff to recover, the court may not
grant a defendant’s motion to dismiss.” York at 145.
{¶11} The question of whether a governmental employee or political subdivision is
entitled to this statutory immunity is a question of law for a court’s determination.
Conley v. Shearer, 64 Ohio St.3d 284, 291, 595 N.E.2d 862 (1992); Feitshans v. Darke
Cty., 116 Ohio App.3d 14, 19, 686 N.E.2d 536 (2d Dist.1996).
Political Subdivision Immunity
{¶12} In order to determine whether a political subdivision enjoys immunity under
the Political Subdivision Tort Liability Act, as codified in R.C. Chapter 2744, we employ
the three-tiered analysis. See Colbert v. Cleveland, 99 Ohio St.3d 215, 2003-Ohio-3319,
790 N.E.2d 781, ¶ 7. A general grant of immunity is provided within the first tier, which
states that
a political subdivision is not liable in damages in a civil action for injury,
death, or loss to person or property allegedly caused by any act or omission
of the political subdivision or an employee of the political subdivision in
connection with a governmental or proprietary function.
R.C. 2744.02(A)(1).
{¶13} The second tier of the analysis requires a court to determine whether any of
the five exceptions to immunity listed in R.C. 2744.02(B) apply to overcome the general
grant of immunity. Id. at ¶ 8. These exceptions include negligent operation of a motor
vehicle, negligent performance of a proprietary function of the subdivision, negligent
failure to keep a road in repair, negligence related to defects at governmental buildings,
and liability imposed by statute. Id. If any of the exceptions to immunity in R.C.
2744.02(B) do apply and no defense to that section protects the political subdivision from
liability, then the third tier of the analysis requires a court to determine whether any of the
defenses in R.C. 2744.03 apply, thereby providing the political subdivision a defense
against liability. Id. at ¶ 9.
{¶14} Regarding a Civ.R. 12(B)(6) motion involving political subdivision
immunity, the Tenth District noted:
In Ohio, a notice-pleading state, the plaintiff need not prove his or her case
at the pleading stage. * * * Thus, a plaintiff need not affirmatively dispose
of the immunity question altogether at the pleading stage. * * *
Requiring a plaintiff to affirmatively demonstrate an exception to immunity
at this stage would be tantamount to requiring the plaintiff to overcome a
motion for summary judgment at the pleading stage. * * * Instead, a
plaintiff must merely allege a set of facts that, if proven, would plausibly
allow for recovery.
(Citations omitted.) Scott v. Columbus Dept. of Pub. Utils., 10th Dist. Franklin No.
10AP-391, 2011-Ohio-677, ¶ 8.
{¶15} In undertaking the first tier of the analysis in this case, we note, as a
preliminary matter, that R.C. 2744.01(C)(2)(a) states that a “‘governmental function’
includes * * * [t]he provision or nonprovision of police, fire, emergency medical,
ambulance, and rescue services or protection[.]” In addition, a proprietary function must
satisfy both of the following:
(a) The function is not one described in division (C)(1)(a) or (b) of this
section and is not one specified in division (C)(2) of this section;
(b) The function is one that promotes or preserves the public peace, health,
safety, or welfare and that involves activities that are customarily engaged
in by nongovernmental persons.
{¶16} The Ohio Supreme Court has held, however, that when a political
subdivision’s acts go beyond governmental functions, and when it acts in a proprietary
nature, there is little justification for affording immunity to that political subdivision.
Greene Cty. Agricultural Soc. v. Liming, 89 Ohio St.3d 551, 559, 2000-Ohio-486, 733
N.E.2d 1141. “Having entered into activities ordinarily reserved to the field of private
enterprise, a [political subdivision] should be held to the same responsibilities and
liabilities as are private citizens.” Id., quoting Schenkolewski v. Cleveland Metroparks
Sys., 67 Ohio St.2d 31, 37, 426 N.E.2d 784 (1981). The Liming court quoted at length
from the earlier case of Wooster v. Arbenz, 116 Ohio St. 281, 284-285, 156 N.E. 210(1927), and stated:
In performing those duties which are imposed upon the state as obligations
of sovereignty, such as protection from crime, or fires, or contagion, or
preserving the peace and health of citizens and protecting their property, * *
* the function is governmental, and if the municipality undertakes the
performance of those functions, whether voluntarily or by legislative
imposition, the municipality becomes an arm of sovereignty and a
governmental agency and is entitled to * * * immunity * * *. If, on the
other hand, there is no obligation on the part of the municipality to perform
them, but it does in fact do so for the comfort and convenience of its
citizens * * * and the city has an election whether to do or omit to do those
acts, the function is private and proprietary.
Another familiar test is whether the act is for the common good of all the
people of the state, or whether it relates to special corporate benefit or
profit.
The Wooster court expounded that “if the function being exercised is
proprietary and in pursuit of private and corporate duties, for the particular
benefit of the [municipal] corporation and its inhabitants, as distinguished
from those things in which the whole state has an interest, the city is liable.”
116 Ohio St. at 284, 156 N.E. at 211.
Id.{¶17} Moreover, “[i]n the absence of an explicit statutory definition, whether a
function is governmental or proprietary must be determined by ‘defining what it is that
the political subdivision is actually doing when performing the function.’” Kenko Corp.
v. Cincinnati, 183 Ohio App.3d 583, 2009-Ohio-4189, 917 N.E.2d 888, ¶ 27 (1st Dist.),
quoting Allied Erecting & Dismantling Co. v. Youngstown, 151 Ohio App.3d 16,
2002-Ohio-5179, 783 N.E.2d 523, ¶ 23 (7th Dist.).
{¶18} In this matter, the City insists that the complaint alleges a matter that
occurred in connection with a governmental function. However, in examining the
allegations of the complaint, Srokowski has alleged that Shay, who was wearing a
Cleveland police uniform, was providing security for the Bier Markt, took a sleeping
Srokowski, who was face down on a table, dragged him across the floor, forcibly threw
him to the ground and smashed his face into the floor, banged Srokowski’s head into the
cement after he was handcuffed, brought him to an upper room of the Bier Markt, and
held him there for a period of time. He was later arrested, booked into jail and
incarcerated.
{¶19} From these allegations, it is not clear beyond doubt that Srokowski can
prove no set of facts in support of his claim that would entitle him to relief. In this early
stage of the proceedings, accepting as true all material allegations of the complaint and
making all reasonable inferences in favor of Srokowski, it is not clear beyond dispute that
this matter involves a governmental function. Further, Srokowski has asserted claims for
negligent performance of a proprietary function, and negligent infliction of emotional
distress, as is germane to the second tier of the immunity analysis.
{¶20} Accordingly, we cannot say, at this early stage of the proceedings, that from
the four corners of the complaint, there is no set of facts consistent with the Srokowsi’s
complaint that would allow him to recover on the claims for negligent infliction of
emotional distress and negligence. Therefore, the trial court’s ruling on the City’s
motion to dismiss, which dismissed 14 of Srokowski’s other claims for relief, applied the
proper standard, correctly construed all material allegations of the complaint in favor of
Srokowski, and properly held that it cannot be said beyond doubt that Srokowski can
prove no set of facts in support of his claim that would entitle him to recover on the
claims for negligent infliction of emotional distress and negligence. We therefore affirm
the order insofar as it denied the City’s motion to dismiss as to these two claims for relief.
{¶21} The City’s assignment of error is without merit.
{¶22} Judgment is affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into
execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
MARY EILEEN KILBANE, JUDGE
FRANK D. CELEBREZZE, JR., P.J., and
EILEEN A. GALLAGHER, J., CONCUR