2022 Ohio 1490
Ohio Ct. App.2022Background:
- Decedent Clifford Gilmore was buried at West Park Cemetery, owned and operated by the City of Cleveland; family purchased a headstone in 2008.
- For ~11 years plaintiff Linda Garmback visited what she believed was her brother's grave; in 2018 she discovered Gilmore's headstone had been placed on an adjacent, incorrect plot.
- Cemetery manager investigated and moved the headstone to the correct grave; Milano Monuments' employee later was identified as the party who placed the headstone incorrectly.
- Garmback sued the City (and later Milano) asserting negligence, negligent/reckless (intentional) infliction of emotional distress, breach of contract, and respondeat superior; City moved for summary judgment based on political-subdivision immunity (R.C. Chapter 2744).
- Trial court denied the City's summary-judgment motion; on appeal the court limited review to non-contract claims (statutory rule makes denial of immunity a final order) and affirmed denial as to breach-of-contract claim but addressed immunity for the tort claims.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Negligence | Misplacement of headstone breached City's duty causing emotional injury | No cognizable common-law duty to provide "proper and dignified" burial; mistake not actionable negligence | City entitled to immunity; trial court erred denying summary judgment (reversed) |
| Negligent infliction of emotional distress | City's conduct caused severe emotional harm warranting recovery | No outrageous or egregious mishandling or desecration; claim fails as matter of law | Claim fails; City immune; trial court erred denying summary judgment (reversed) |
| Respondeat superior | City liable for employee negligence via vicarious liability | Vicarious liability only applies if an exception to immunity removes City's immunity | Fails because no R.C. 2744.02(B) exception applies; summary judgment should have been granted (reversed) |
| Reckless/intentional infliction of emotional distress | Conduct was reckless and caused severe distress | No evidence of intentional/reckless conduct; intentional torts by political subdivisions are barred | Intentional/reckless claim barred by immunity; trial court erred denying summary judgment (reversed) |
| Breach of contract | City breached contractual obligations relating to cemetery/headstone placement | City asserted immunity but statutory exception for contract claims applies | Trial court's denial of summary judgment as to contract claim affirmed; immunity unavailable for contractual claims (affirmed and remanded) |
Key Cases Cited
- Cater v. Cleveland, 83 Ohio St.3d 24 (Ohio 1998) (establishes three-tiered R.C. 2744 immunity analysis)
- Riscatti v. Prime Properties Ltd. Partnership, 137 Ohio St.3d 123 (Ohio 2013) (scope of appellate review when immunity denied)
- Frys v. Cleveland, 107 Ohio App.3d 281 (8th Dist. 1995) (no cognizable duty to provide a "proper and dignified" burial absent contractual or egregious misconduct)
- Yeager v. Local Union 20, 6 Ohio St.3d 369 (Ohio 1983) (defines intentional/reckless infliction of emotional distress)
- Carney v. Knollwood Cemetery Assn., 33 Ohio App.3d 31 (8th Dist. 1986) (recognizes cause of action for abuse of a dead body where remains are mishandled)
- Russ v. TRW, Inc., 59 Ohio St.3d 42 (Ohio 1991) (discusses intentional infliction of emotional distress doctrine)
- Wilson v. Stark Cty. Dept. of Human Servs., 70 Ohio St.3d 450 (Ohio 1994) (political subdivisions are immune from intentional torts)