McKee v. McCann , 102 N.E.3d 38 ( 2017 )

[Cite as McKee v. McCann, 2017-Ohio-4072.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 104956
EDWARD MCKEE
PLAINTIFF-APPELLANT
vs.
SHAUNA MCCANN, ET AL.
DEFENDANTS-APPELLEES
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-16-861930
BEFORE: Stewart, J., E.A. Gallagher, P.J., and Jones, J.
RELEASED AND JOURNALIZED: June 1, 2017
FOR APPELLANT
Edward McKee, pro se
5838 Darry Circle
Norcross, GA 30093
ATTORNEYS FOR APPELLEES
Michael E. Cicero
Vincent A. Feudo
Nicola Gudbranson & Cooper, L.L.C.
Republic Building, Suite 1400
25 West Prospect Avenue
Cleveland, OH 44115
MELODY J. STEWART, J.:
{¶1} As plaintiff-appellant Edward McKee was leaving a Walmart store, he chose
to exit the store and bypass a line of customers who were having their purchases verified
by a receipt. A Walmart employee asked McKee to produce a receipt, but McKee
refused and exited the store. An off-duty South Euclid police officer working as a
security guard for Walmart followed McKee to the parking lot, stopped him, and
instructed him to produce his receipt. Maintaining that he had no legal obligation to do
so, McKee again refused to show his receipt. The security guard called for police
assistance. Two officers responded and ordered McKee to show identification. He
refused, causing the officers to place him under arrest. McKee then relented and showed
the police his identification and receipt, at which point they released him without charge.
In response to McKee’s citizen complaint about the incident, the police sought an opinion
from the city law director, who concluded that the police officers acted appropriately by
detaining McKee when he failed to identify himself while being held on suspicion of
shoplifting.
{¶2} McKee brought this action against defendants Brian Shamblin and Patrick
Delahanty (the police officers who responded to Walmart); James Wilson (a police
lieutenant who wrote an internal report about the incident); Kevin Nietert (the chief of
police who asked the law director for a legal opinion on the conduct of the officers);
Michael Lograsso (the city law director); and the city of South Euclid (“city”).1 McKee
asserted the following claims:
1. Unlawful Detention: McCann and South Euclid
2. Negligence: McCann and South Euclid
3. Intentional Infliction of Emotional Distress: Shamblin and South
Euclid
4: Assault and Battery: Shamblin and South Euclid
5. False Arrest: Shamblin and South Euclid
6. Fraudulent Inducement in Verbal Contract: Shamblin and South
Euclid
7. Fraudulent Misrepresentation: Shamblin and South Euclid
8. Defamation: McCann, Shamblin, and South Euclid
9. Invasion of Privacy: McCann, Shamblin, Delahanty, and South
Euclid
10. Libel: Wilson, Nietert, Lograsso, and South Euclid
11. Respondeat Superior: South Euclid
12. Ratification: Wilson, Nietert, Lograsso, and South Euclid
{¶3} The city, on behalf of itself, Shamblin, Delahanty, Wilson, Nietert, and
Lograsso, filed a motion to dismiss the complaint. It argued that it was immune from
liability for the negligence, intentional tort, and respondeat superior claims under R.C.
2744.02. It also argued that claims against the individual defendants were barred by
qualified privileges that protected them in the performance of their job duties.
McKee also named as defendants Shauna McCann (the security guard); “Loss Prevention
1
Guys 1 & 2” (Walmart employees); Security Hut, Inc.; and Walmart Stores, Inc. These defendants
are not parties to this appeal.
{¶4} The court granted the motion to dismiss over McKee’s opposition, finding
both that the defendants were “statutorily immune to plaintiff’s specific claims” and that
McKee “cannot prove any facts to support his claims against these defendants that would
entitle him to relief.”
I. Claims against Shamblin and Delahanty
{¶5} The first assignment of error contests the dismissal in favor of defendants
Shamblin and Delahanty, the city police officers who responded to the Walmart parking
lot.
A. Intentional Infliction of Emotional Distress
{¶6} The third cause of action alleged that “Shamblin’s treatment of the situation,
including yelling and moving towards Plaintiff with eyes wide as if he were shocked by a
serious crime Plaintiff had committed, was completely out of line with the seriousness of
the alleged offense.” McKee maintained that Shamblin’s “aggressive, combative
behavior” caused him to “fear for his safety” and scared him into complying with
Walmart’s policy to check the receipts of its exiting customers.
{¶7} Civ.R. 12(B)(6) states that 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).
{¶8} Employees of a political subdivision may be entitled to immunity under R.C.
2744.03(A)(6). That section states that
an employee is immune from liability unless the employee’s actions or
omissions are manifestly outside the scope of employment or the
employee’s official responsibilities; the employee’s acts or omissions were
malicious, in bad faith, or wanton or reckless; or liability is expressly
imposed upon the employee by a section of the Revised Code.
Cramer v. Auglaize Acres, 113 Ohio St.3d 266, 2007-Ohio-1946, 865 N.E.2d 9, ¶ 17.
{¶9} McKee incorrectly alleged that Shamblin was acting outside the scope of his
employment because he was “enforcing the policy of a private business and/or his
personal opinion about merchants’ rights, instead of the law of the state of Ohio[.]”
Complaint at ¶ 207. The complaint alleged that McKee had been detained on suspicion
of shoplifting. Complaint at ¶ 189. While the loss of merchandise affects a merchant,
shoplifting is another word for “theft” — a criminal offense under R.C. 2913.02(A).
“[I]n Ohio the state has a direct interest in all crimes” such that “all crimes are prosecuted
in the name of the people, not the victim[.]” State v. Powell, 8th Dist. Cuyahoga No.
99386, 2014-Ohio-2048, ¶ 64. To the extent that Shamblin was investigating a potential
criminal offense, he was acting within the scope of his employment as a police officer.
State v. Hoop, 12th Dist. Brown No. CA2011-07-015, 2012-Ohio-992, ¶ 25.
{¶10} We likewise find that McKee failed to state a cause of action for intentional
infliction of emotional distress.
{¶11} To establish a claim for intentional infliction of emotional distress, a
plaintiff must prove the following elements: (1) the defendant intended to cause, or knew
or should have known that his actions would result in serious emotional distress; (2) the
defendant’s conduct was so extreme and outrageous that it went beyond all possible
bounds of decency and can be considered completely intolerable in a civilized
community; (3) the defendant’s actions proximately caused psychological injury to the
plaintiff; and (4) the plaintiff suffered serious mental anguish of a nature no reasonable
person could be expected to endure. Ashcroft v. Mt. Sinai Med. Ctr., 68 Ohio App.3d
359, 366, 588 N.E.2d 280 (8th Dist.1990).
{¶12} This is not the “rare case that reaches the very high bar of showing ‘extreme
and outrageous’ conduct.” Lombardo v. Mahoney, 8th Dist. Cuyahoga No. 92608,
2009-Ohio-5826, ¶ 7.
It is not enough that the defendant acted with intent to cause emotional
distress. Liability will be found only where “the conduct has been so
outrageous in character, and so extreme in degree, as to go beyond all
possible bounds of decency, and to be regarded as atrocious, and utterly
intolerable in a civilized community.”
Marconi v. Savage, 8th Dist. Cuyahoga No. 99163, 2013-Ohio-3805, ¶ 29, quoting
Yeager v. Local Union 20, 6 Ohio St.3d 369, 374, 453 N.E.2d 666 (1983).
{¶13} McKee alleged only that Shamblin yelled and moved toward him with “eyes
wide.” This is not conduct so extreme and outrageous that it went beyond all possible
bounds of decency and can be considered completely intolerable in a civilized
community. As a police officer investigating a possible crime, Shamblin had wide
latitude to take control of the scene. Shamblin’s act of raising his voice was not
outrageous, even if McKee found it offensive.
B. Assault and Battery; False Arrest
{¶14} The fourth cause of action alleged that Shamblin committed assault and
battery by making “aggressive movements” and touching and physically restraining
McKee.
{¶15} “A person is subject to liability for battery when he acts intending to
causea harmful or offensive contact, and when a harmful contact results.” Love v. Port
Clinton, 37 Ohio St.3d 98, 99, 524 N.E.2d 166 (1988), citing Restatement of the Law 2d,
Torts, Section 13, at 25 (1965).
{¶16} We recognize that for purposes of Civ.R. 12(B)(6), affirmative defenses
typically involve facts outside the complaint. An exception to this general rule exists
when the affirmative defense is obvious from the face of the complaint. Hughes v.
Robinson Mem. Portage Cty. Hosp., 16 Ohio App.3d 80, 82, 474 N.E.2d 638 (11th
Dist.1984); Bell v. Horton, 107 Ohio App.3d 824, 826-827, 669 N.E.2d 546 (4th
Dist.1995).
{¶17} The battery allegations involve Shamblin’s act of handcuffing McKee. See
complaint at ¶ 175. “Officers are privileged to commit battery when making a lawful
arrest, but the privilege is negated by the use of excessive force.” Alley v. Bettencourt,
134 Ohio App.3d 303, 313, 730 N.E.2d 1067 (4th Dist.1999). The battery count contains
no allegation that Shamblin used excessive force when he handcuffed McKee — the
complaint alleged only that the act of handcuffing McKee constituted a battery.
Shamblin was privileged when making the arrest and the court properly dismissed this
claim.
{¶18} For the same reasons, the court properly dismissed the false arrest claim
pleaded in the fifth cause of action. That cause of action alleged that Shamblin wrongly
placed McKee under arrest because he had no probable cause, reasonable suspicion, or
any other type of cause to believe that McKee committed a violation of R.C. 2921.29(A)
— failing to disclose to a law enforcement officer the person’s name, address, or date of
birth when the law enforcement officer reasonably suspects that the person is committing
or has committed a criminal offense.
{¶19} “A false arrest and false imprisonment claim is made by establishing two
elements: 1) the intentional detention of the person; and, 2) the unlawfulness of the
detention.” Ficklin v. Home Depot U.S.A., Inc., 8th Dist. Cuyahoga No. 94458,
2010-Ohio-5601, ¶ 34. Police officers have a qualified privilege for purposes of a false
arrest claim if the officer possessed probable cause to justify an arrest. Henderson v.
Euclid, 8th Dist. Cuyahoga No. 101149, 2015-Ohio-15, ¶ 55.
{¶20} The complaint alleged facts showing that McKee refused to show
identification to Shamblin — it stated that when asked if he had identification, McKee
pointed to his backpack and, when asked to display the identification, McKee said “no
thank you” because “he knew that there was no legal requirement to search his own
backpack and provide an ID card to a police officer upon demand.” Complaint at ¶ 77.
McKee’s refusal to show identification was made despite knowing that “Shamblin thinks
that a merchant ‘has a right to verify’ that shoppers haven’t committed theft by forcing
them to wait in long lines and present their personal property (receipts and recent
purchases), for inspection before they are allowed to leave a store.” Id. at ¶ 73. The
complaint thus showed that McKee understood that Shamblin suspected that McKee’s
refusal to allow store personnel to verify his purchases could have been to hide a potential
theft. As it happened, McKee paid for his purchases. But the fact that there was no
theft did not mean that Shamblin’s initial suspicion that McKee might have been
shoplifting was unreasonable. State v. Andrews, 57 Ohio St.3d 86, 565 N.E.2d 1271(1991) (circumstances for determining reasonable suspicion not viewed in hindsight).
R.C. 2921.29(A) imposes strict liability for failing to show identification, so Shamblin
had a qualified immunity from suit for false arrest.
C. Fraudulent Inducement into Verbal Contract
{¶21} The sixth cause of action alleged that Shamblin placed McKee under arrest
for failing to disclose identifying information for the sole purpose of inducing McKee’s
capitulation to the request to show his identification.
{¶22} This aspect of the complaint confused cause and effect: Shamblin placed
McKee under arrest because he had probable cause to conclude that the offense of failing
to disclose personal information had been committed. The complaint stated as much:
McKee told the police that he had identification in his backpack, but refused to produce
it, causing Shamblin to say, “so you’re not gonna identify yourself,” resulting in him
placing McKee under arrest. Complaint at ¶ 79-80. That the shock of being placed
under arrest caused McKee to finally identify himself did not undermine the fact that the
officer had probable cause to arrest before McKee did so. Even with the most liberal
construction of these facts in McKee’s favor, Millennia Hous. Mgt. v. Johnson, 8th Dist.
Cuyahoga No. 96854, 2012-Ohio-1044, ¶ 10, they fail to allege a viable cause of action of
any kind, much less the one stated here for a breach of oral contract for which there was
no mutual assent to any defined terms.
D. Fraudulent Misrepresentation
{¶23} The seventh cause of action alleged that Shamblin fraudulently represented
himself as enforcing R.C. 2921.29(A) “when in reality he simply wanted to scare Plaintiff
into submission on the receipt issue.” Complaint at ¶ 228. We summarily reject
McKee’s assertion that the court erred by dismissing this cause of action for the same
reasons given in our disposition of the sixth cause of action for fraudulent inducement in
a verbal contract — the facts alleged by McKee show that Shamblin had probable cause
to arrest based on McKee’s refusal to give identifying information. In addition,
Shamblin had a reasonable basis for suspecting that McKee’s refusal to show his receipt
was intended to evade potential shoplifting. The arrest was effectuated because McKee
failed to provide identifying information, not for the purpose of forcing him to identify
himself.
E. Defamation
{¶24} McKee premised his eighth cause of action on defamation, alleging that
“Shamblin’s false arrest of Plaintiff, both in a public parking lot and in front of other
customers including Plaintiff’s roommate and roommate’s girlfriend, defamed Plaintiff in
the eyes of the public as the public now thinks of Plaintiff as a criminal.” Complaint at ¶
231.
{¶25} Defamation concerns a publication that contains a false statement made with
some degree of fault, reflecting injuriously on a person’s reputation, or exposing a person
to public hatred, contempt, ridicule, shame or disgrace, or affecting a person adversely in
his or her trade, business, or profession. Jackson v. Columbus, 117 Ohio St.3d 328,
2008-0hio-1041, 883 N.E.2d 1060, ¶ 9.
{¶26} As pleaded, the defamation claim did not involve any statement made by
Shamblin; McKee alleged that the arrest itself was defamatory because it was “false” and
it occurred in public. We previously stated that Shamblin had qualified immunity on the
false arrest claim, and that qualified immunity extends to a defamation claim premised on
the same conduct. As pleaded, the defamation claim is an attempt to alternatively plead a
nonviable false arrest claim.
F. Invasion of Privacy
{¶27} The ninth cause of action alleged that both Shamblin and Delahanty invaded
McKee’s privacy: Shamblin allegedly “terrified Plaintiff into giving additional
information” about products whose purchase McKee did not wish to make public;
Delahanty allegedly repeated McKee’s social security number in front of Walmart
personnel and repeated “unknown amounts of confidential information over the insecure
police radio in his car.” Complaint at ¶ 232-235.
{¶28} “An actionable invasion of the right of privacy is the unwarranted
appropriation or exploitation of one’s personality, the publicizing of one’s private affairs
with which the public has no legitimate concern, or the wrongful intrusion into one’s
private activities in such a manner as to outrage or cause mental suffering, shame or
humiliation to a person of ordinary sensibilities.”
Housh v. Peth, 165 Ohio St. 35, 38, 133 N.E.2d 340 (1956), paragraph two of the
syllabus. “[T]o assert a tortious invasion of privacy claim, plaintiff must show that the
area intruded upon was private, and that the intrusion of the defendants was unwarranted
and offensive or objectionable to the reasonable [person].” Krause v. Case W. Reserve
Univ., 8th Dist. Cuyahoga No. 70712, 1996 Ohio App. LEXIS 5784, *25 (Dec. 19, 1996),
citing M.J. DiCorpo, Inc. v. Sweeney, 69 Ohio St.3d 497, 507, 634 N.E.2d 203 (1994).
{¶29} This claim fails on its face because McKee’s act of purchasing his
merchandise from a store open to the public showed that he did not consider the items he
bought to be private. McKee did not allege that he utilized a self-checkout in order to
ensure that a cashier would not know what he purchased. In addition, he was not the
only customer in the store — the complaint alleged that there was a “long line” of
customers waiting at the exit to have their receipts checked by store personnel, and some
of the those customers were presumably waiting in line with him at checkout. Finally,
the complaint failed to identify the purchases that McKee wished to keep from the public.
While there may be an argument that some products are of such a personal nature that a
purchaser might desire to keep their identity private, there is nothing from the face of the
complaint to show that the items McKee purchased were of such a personal nature that
discretion dictated that publication would be offensive or objectionable to the reasonable
person.
{¶30} The invasion of privacy claim against Delahanty presents a different
question. The publication of an individual’s social security number may form the basis
of an invasion of privacy action. See Lambert v. Hartmann, 178 Ohio App.3d 403,
2008-Ohio-4905, 898 N.E.2d 67, ¶ 27 (1st Dist.), rev’d on other grounds, 125 Ohio St.3d
231, 2010-Ohio-1483, 927 N.E.2d 585. Nevertheless, as an employee of a political
subdivision, Delahanty is immune from suit.
{¶31} R.C. 2744.03(A)(6) states that an employee of a political subdivision is
immune from liability unless (a) the employee’s acts were manifestly outside the scope of
the employee’s official responsibilities, (b) the employee’s acts were done with malicious
purpose, in bad faith, or in a wanton or reckless manner, or (c) liability is expressly
imposed upon the employee by a section of the Revised Code. McKee did not allege that
Delahanty’s conduct fell within any of these exceptions to liability. The complaint
alleged only that Delahanty “loudly repeated” McKee’s social security number to verify
the digits of the number as given to him by McKee. See complaint at ¶ 145. While he
might have been more discreet in verifying the social security number, there is no
allegation that Delahanty acted in bad faith or in a wanton or reckless manner by doing
so. Ghaster v. Rocky River, 8th Dist. Cuyahoga No. 99779, 2013-Ohio-5587, ¶ 42.
II. Claims against Wilson, Nietert, and Lograsso
A. Libel
{¶32} The tenth cause of action is a libel claim against Lt. Wilson, Chief Nietert,
and law director Lograsso, whose written statements concerning their investigation into
the incident involving McKee were alleged to have intentionally misrepresented facts as
shown by body camera video taken by the police officers on the scene.
{¶33} The investigation at the heart of this cause of action was prompted by an
email that McKee sent to Nietert, in which he complained about the “stress of the false
arrest and that it would throw off his sleep schedule for the whole week.” Complaint at ¶
167. Wilson investigated McKee’s complaint and concluded that the police officers
were justified in detaining McKee after he failed to present the receipt for his purchases
and that McKee was “purposely goading the involved officers to take action against him
in an effort to file an illegal search or illegal arrest lawsuit at a later time.” Id. at ¶ 176.
Lograsso issued a legal opinion stating that Shamblin’s demand that McKee present his
ID was the functional equivalent of seeking the information sought under R.C.
2921.29(A). Id. at ¶ 179. Nietert then wrote McKee stating that McKee had been
placed under arrest for refusing to identify himself, that it was after arrest that McKee had
“a change of heart and agreed to cooperate” with the police, and that once McKee had
properly identified himself, he was released without charges. Id. at ¶ 184.
{¶34} “In Ohio, ‘libel’ is defined generally as a false written publication, made
with some degree of fault, reflecting injuriously on a person’s reputation, or exposing a
person to public hatred, contempt, ridicule, shame or disgrace, or affecting a person
adversely in his or her trade, business or profession.” (Citations omitted.) A & B-Abell
Elevator Co. v. Columbus/Cent. Ohio Bldg. & Constr. Trades Council, 73 Ohio St.3d 1,
7, 651 N.E.2d 1283 (1995).
{¶35} A defendant can invoke the defense of qualified privilege to a claim for libel
where “circumstances exist, or are reasonably believed by the defendant to exist, which
cast on him the duty of making a communication to a certain other person to whom he
makes such communication in the performance of such duty” or where “the person is so
situated that it becomes right in the interests of society that he should tell third persons
certain facts, which he in good faith proceeds to do.” Hahn v. Kotten, 43 Ohio St.2d
237, 245-246, 331 N.E.2d 713 (1975).
{¶36} Wilson’s statements were subject to a qualified privilege for statements
made in internal police communications “made between law enforcement officers and
[which] concern matters in which the officers have a common interest.” Black v.
Cleveland Police Dept., 96 Ohio App.3d 84, 89, 644 N.E.2d 682 (8th Dist.1994). See
also Davis v. Warrensville Hts., 8th Dist. Cuyahoga No. 72722, 1998 Ohio App. LEXIS
117, *9 (Jan. 15, 1998).
{¶37} Lograsso’s legal opinion was immune from liability under R.C.
2744.03(A)(7), which grants immunity to a city law director to the extent that the law
director is “entitled to any defense or immunity available at common law or established
by the Revised Code.” Lograsso’s legal opinion was absolutely privileged because it
was “a communication made by the law director of a village or municipality in his official
capacity[.]” Flynn v. Relic, 8th Dist. Cuyahoga No. 41404, 1980 Ohio App. LEXIS
12103, *10 (June 26, 1980).
{¶38} Nietert’s communication to McKee suffered from a more mundane issue
than privilege — there was no allegation that the letter was published to any third party.
The complaint uses the words “public record” to describe the writing, presumably
indicating McKee’s belief that the accessibility of these writings under R.C. 149.01, the
Ohio Public Records law, is sufficient to establish publication. “‘Publication of
defamatory matter is its communication intentionally or by a negligent act to one other
than the person defamed.’” Hecht v. Levin, 66 Ohio St.3d 458, 460, 613 N.E.2d 585(1993), quoting 3 Restatement of the Law 2d, Torts, Section 577(1) (1965). McKee did
not allege that the letter was communicated to any person other than himself — he alleged
only that “Defendant Nietert wrote an evasive and boilerplate letter to Plaintiff * * *.”
Complaint at ¶ 184. The claim for relief against Nietert failed to establish the
publication element of a defamation claim.
B. Ratification
{¶39} The twelfth cause of action alleged that Wilson, Nietert, and Lograsso
ratified the actions of police officer Shamblin, who allegedly engaged in a “proprietary
function” when he arrested McKee for failing to provide identifying information.
Complaint at ¶ 248.
{¶40} Even if we assume without deciding that ratification of Shamblin’s conduct
existed in this context, there is no allegation that Wilson, Nietert, and Lograsso acted with
malicious purpose, in bad faith, or in a wanton or reckless manner by doing so. See R.C.
2744.03(A)(6). On that basis, the claims against them were properly dismissed.
III. Claims Against South Euclid
A. Intentional Torts
{¶41} The city is immune from all intentional tort claims because R.C. 2744.02(B),
which states those circumstances in which immunity does not apply, contains no
exceptions to immunity for intentional tort claims. Thornton v. Cleveland, 176 Ohio
App.3d 122, 2008-Ohio-1709, 890 N.E.2d 353, ¶ 6 (8th Dist.); Henderson, 8th Dist.
Cuyahoga No. 101149, 2015-Ohio-15, at ¶ 62. The court did not err by dismissing
claims for relief 1, 3, 4, 5, 6, 7, 8, 9, and 10 against the city.
B. Negligence
{¶42} The second count of the complaint alleged that the city was negligent in
failing to inform or train a police officer, acting as a security guard, about the limits of
the “merchant’s privilege” to detain a person for a reasonable length of time if the
merchant has probable cause to believe the person unlawfully took items.
{¶43} The operation of a police department is a governmental function for which
the city is immune. See R.C. 2744.01(C)(2)(a). There are only five exceptions to a
political subdivision’s governmental immunity: (1) the negligent operation of a motor
vehicle by an employee; (2) the employee’s negligent performance of proprietary
functions; (3) the negligent failure to keep public roads open and in repair; (4) the
negligence of employees occurring within or on the grounds of buildings used in
connection with the performance of governmental functions; or (5) express imposition of
liability by statute. See R.C. 2744.03(B)(1)-(5).
{¶44} The complaint does not allege any facts falling within these exceptions to
the city’s immunity. McKee did raise R.C. 2744.03(B)(2) — that the city was liable for
the security guard’s negligence — but that exception to immunity applies only to
proprietary governmental functions. As pleaded, the negligence count alleged that the
city “improperly informed and/or trained” the security guard. “[T]he provision of police
services and the training of police are governmental functions subject to statutory
immunity.” Wingfield v. Cleveland, 8th Dist. Cuyahoga No. 100589, 2014-Ohio-2772, ¶
13.
C. Respondeat Superior
{¶45} The eleventh count of the complaint alleged that the city was vicariously
liable for the actions of Shamblin, Delahanty, Wilson, Nietert, and the security guard
under a theory of respondeat superior.
{¶46} “A political subdivision may not be held liable under a theory of respondeat
superior unless one of the exceptions to the sovereign immunity listed in R.C. 2744.02(B)
applies.” Reno v. Centerville, 2d Dist. Montgomery No. 20078, 2004-Ohio-781, ¶ 53,
citing Lee v. Cleveland, 151 Ohio App.3d 581, 2003-Ohio-742, 784 N.E.2d 1218 (8th
Dist.). McKee’s argument fails because his claims do not fall within any exception to
immunity under R.C. 2744.02(B), nor has he argued that any of the statutory exceptions
to immunity exist. Woods v. Wellston, S.D.Ohio No. 2:02-cv-762, 2005 U.S. Dist.
LEXIS 45447, *50 (June 15, 2005).
{¶47} With respect to the security guard, a claim for respondeat superior will not
lie against the city because the security guard was not acting in the course and scope of
her employment as a city police officer. See Hubbard v. Charter One Bank, 8th Dist.
Cuyahoga No. 104146, 2017-Ohio-1033, ¶ 24. McKee specifically alleged that the
security guard’s “actions show that she considered her actions as being in the scope of her
employment as a private security guard enforcing store policy, not in the scope of her
employment as a South Euclid police officer.” Complaint at ¶ 45. In fact, McKee
specifically alleged in the eleventh cause of action that the security guard’s actions “were
taken in the course of her employment by Security Hut, and Security Hut is vicariously
liable for her actions.” Id. at ¶ 243.
{¶48} With respect to Shamblin, Delahanty, Wilson, and Nietert, we acknowledge
that their qualified immunity “is no shield to the employer’s liability for acts under the
doctrine of respondeat superior.” State ex rel. Sawicki v. Lucas Cty. Court of Common
Pleas, 126 Ohio St.3d 198, 2010-Ohio-3299, 931 N.E.2d 1082, ¶ 28, citing Adams v.
Peoples, 18 Ohio St.3d 140, 142-143, 480 N.E.2d 428 (1985). Nevertheless, McKee
framed their conduct under the eleventh cause of action as “part of that city’s proprietary
functions of ‘Providing Retail Security’ and ‘Supervising Retail Security[.]’” Complaint
at ¶ 245. There are no facts pleaded to show that Shamblin, Delahanty, Wilson, and
Nietert were engaged in the proprietary function of providing retail security. The facts
pleaded in the complaint leave no doubt that Shamblin, Delahanty, Wilson, and Nietert
were engaged in governmental functions relating to a police department — only the
security guard was engaged in providing retail security.
D. Ratification
{¶49} The twelfth cause of action alleged that the city ratified the actions of
Shamblin “in the course of the city’s performance of the proprietary functions of
‘Providing Retail Security’ and ‘Supervising Retail Security.’” Complaint at ¶ 148.
{¶50} Ohio does not recognize an independent cause of action for ratification. As
pleaded, the twelfth count of the complaint is nothing more than a respondeat superior
cause of action, where ratification of an employee’s actions is required to show that the
employer adopted acts committed by an employee who was acting outside the scope of
employment. Riotte v. Cleveland, 195 Ohio App.3d 387, 2011-Ohio-4507, 960 N.E.2d
496, ¶ 18 (8th Dist.). The complaint claimed that Shamblin was acting outside the scope
of his employment and was, in essence, providing “retail security” because he was
“enforcing the policy of a private business and/or his opinions about merchants’ rights.”
Complaint at ¶ 207. We rejected this argument in our discussion of the third cause of
action and apply that same conclusion here: the complaint shows that Shamblin arrested
McKee for an alleged violation of a law requiring a person to give identifying
information. That was an act fully within the course and scope of Shamblin’s duties as a
police officer.
{¶51} The security guard was not acting in the course and scope of her
employment as a city police officer at the time the events giving rise to the complaint
occurred. A principal ratifies the unauthorized act of his agent if the “principal, with full
knowledge of the facts, conducts himself in a way which manifests his intention to
approve an earlier act performed by his agent which did not bind him.” Karat Gold
Imports, Inc. v. United Parcel Serv., Inc., 62 Ohio App.3d 604, 611, 577 N.E.2d 115 (8th
Dist.1989). To constitute ratification of employee conduct outside the scope of
employment, the ratified conduct must further or promote the employer’s business.
Martin v. Cent. Ohio Transit Auth., 70 Ohio App.3d 83, 92, 590 N.E.2d 411 (10th
Dist.1990).
{¶52} The security guard’s outside employment was too attenuated to constitute a
benefit or furtherance of the city’s business. The complaint alleged that the city
misconstrued and misrepresented evidence shown on the body camera video to justify the
security guard’s actions, but the city gained no benefit from doing so. Absent
ratification, the security guard’s conduct was not attributable to the city and thus not
actionable against it. The complaint shows only that the city investigated the incident
and rejected McKee’s assertion that the security guard needed probable cause to stop him.
This conclusion did not approve her actions; it merely found that she acted justifiably by
stopping McKee on suspicion of shoplifting.
{¶53} Judgment affirmed.
It is ordered that appellees recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas 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.
______________________________________________
MELODY J. STEWART, JUDGE
EILEEN A. GALLAGHER, P.J., and
LARRY A. JONES, SR., J., CONCUR