NICHOLAS DIGIORGIO, ET AL. v. CITY OF CLEVELAND, ET AL.
No. 95945
Court of Appeals of Ohio, Eighth Appellate District, County of Cuyahoga
November 10, 2011
[Cite as DiGiorgio v. Cleveland, 2011-Ohio-5878.]
Civil Appeal from the Cuyahoga County Court of Common Pleas, Case No. CV-700625
JUDGMENT: REVERSED
BEFORE: Keough, J., Blackmon, P.J., and E. Gallagher, J.
RELEASED AND JOURNALIZED: November 10, 2011
For the city of Cleveland, Michael McGrath, James Gibian, Patrick J. McLain, and Michael A. Lawrence
Barbara A. Langhenry
Interim Director of Law
Awatef Assad
William F. Gibson
Assistant Directors of Law
601 Lakeside Avenue
Room 106
Cleveland, OH 44114
Also Listed
For Durraymus Gillis
Peter G. Hilbert
Jones Day
North Point
901 Lakeside Avenue
Cleveland, OH 44114
For Dontez D. Hairston
Irina Vinogradsky
Law Offices of Irina Vinogradsky
27600 Chagrin Boulevard
Woodmere, OH 44124
For Davonte Johnson
Ronald Robinson
1276 West Third Street
The Marion Building, Suite 424
Cleveland, OH 44113
Bari E. Goggins
Ulmer & Berne LLP
Skylight Office Tower
1660 West 2nd Street, Suite 1100
Cleveland, OH 44113-1448
ATTORNEYS FOR APPELLEES
William B. Eadie
Rhonda Baker Debevec
Spangenberg Shibley & Liber LLP
1001 Lakeside Avenue East
Suite 1700
Cleveland, OH 44114
KATHLEEN ANN KEOUGH, J.:
{¶ 1} Having determined in en banc proceedings that the trial court‘s order is a final, appealable order, this panel addresses the merits of the appeal. Defendants-appellants, the city of Cleveland (the “City“), Police Chief Michael McGrath, Sergeant James Gibian, Officer Patrick J. McLain, and Officer Michael A. Lawrence, appeal from the trial court‘s judgment denying their motion to dismiss and/or for judgment on the pleadings. For the reasons that follow, we reverse.
I
{¶ 2} On August 4, 2007, Virginia DiGiorgio was tragically struck and killed by a stolen car driven by defendant Dontez D. Hairston. Two years later, on August 4, 2009, plaintiffs-appellees, Joseph DiGiorgio, Virginia‘s widower, and Nicholas DiGiorgio, Virginia‘s son and administrator of her estate, filed suit. The complaint named as
{¶ 3} Appellees alleged the following facts in paragraphs six through nine of their complaint:
{¶ 4} “6. On August 4, 2007, Plaintiff Joseph DiGiorgio and Plaintiff[s‘] decedent, Virginia DiGiorgio, were pedestrians crossing Prospect Avenue near its intersection with E. 14th Street, Cleveland, Ohio.
{¶ 5} 7. Plaintiffs’ decedent was struck by a stolen westbound automobile being operated by Defendant Driver and pursued by City of Cleveland Police Officers, Defendants McLain and Lawrence.
{¶ 6} 8. The stolen vehicle was being operated by Defendant Dontez Hairston, with the joint and active participation of his passengers[,] defendants Durraymus Gillis, Davonte Johnson, and Devonta McIntyre.
{¶ 7} 9. As a direct and proximate result of the collision described above, the Plaintiff[s‘] decedent, Virginia DiGiorgio, sustained fatal injuries and Plaintiff Joseph DiGiorgio sustained serious permanent psychological injuries.”
{¶ 8} Appellees’ complaint then alleged the following causes of action against the municipal defendants:
{¶ 9} 1. The first cause of action, directed against the City and Officers McLain
{¶ 10} 2. The second cause of action alleged that the City “recklessly, willfully and/or wantonly failed to provide appropriate and necessary training to its officers regarding pursuit of suspects” and that Chief McGrath “recklessly, willfully and/or wantonly failed to ensure that his Officers, Defendants McLain and Lawrence, were adequately trained on proper pursuit of suspects * * *.” Id. at ¶ 17, 19.
{¶ 11} 3. The third cause of action alleged that Chief McGrath “recklessly, willfully and/or wantonly failed to ensure that his Officers, Defendants McLain and Lawrence, were adequately trained on proper pursuit of suspects * * *.” Id. at ¶ 22.
{¶ 12} 4. The fourth cause of action alleged that the City and Chief McGrath “recklessly, willfully and/or wantonly failed to ensure that their Officers, Defendants McLain and Lawrence, were adequately supervised” and “recklessly, willfully and/or wantonly failed to ensure that an adequate and functioning communication system existed to facilitate the supervision required under Ohio law and to reasonably protect the public.” Id. at ¶ 28-29.
{¶ 13} 5. The fifth cause of action alleged that the City, Chief McGrath, and Sergeant Gibian “directly participated and/or implicitly authorized, approved and/or knowingly acquiesced to the officers’ conduct conducting the police chase in such a
{¶ 14} 6. The eighth cause of action2 alleged a survivorship claim based on any pain and suffering experienced by Virginia prior to her death. Id. at ¶ 45.
{¶ 15} 7. The ninth and tenth causes of action alleged negligent infliction of emotional distress and loss of consortium on behalf of Joseph DiGiorgio. Id. at ¶ 48, 50.
{¶ 16} The municipal defendants answered the complaint, denied liability, and subsequently filed a motion to dismiss and/or for judgment on the pleadings pursuant to
II
A. Immunity
{¶ 17} In their first assignment of error, the municipal defendants argue that the trial court erred in denying their motion for judgment on the pleadings regarding appellees’
{¶ 18}
{¶ 19} Although the standards for
{¶ 20} Determining whether a governmental entity is immune from tort liability
{¶ 21} 1. negligent operation of a motor vehicle;
{¶ 22} 2. negligent conduct of employees while carrying out a proprietary function;
{¶ 23} 3. a municipality‘s failure to keep roads and sidewalks free from nuisance;
{¶ 24} 4. injury or loss that occurs on or within buildings used for governmental functions and is caused by the negligence of the municipality‘s employees; and
{¶ 25} 5. any other situation in which liability is expressly imposed by the Revised Code.
{¶ 26} If a plaintiff demonstrates that one of the five enumerated exceptions to governmental immunity applies, a political subdivision may then assert one of the defenses set forth in
{¶ 27} This court has recognized that the provision of police services is a governmental function subject to statutory immunity. Hall-Pearson v. S. Euclid (Oct. 8, 1998), Cuyahoga App. No. 73429; McCloud v. Nimmer (1991), 72 Ohio App.3d 533, 538, 595 N.E.2d 492. Moreover, as relevant to this case, in Hall-Pearson this court
{¶ 28} It is apparent that none of the exceptions to immunity set forth in
{¶ 29} Appellees’ argument, relying on Cater v. Cleveland, 83 Ohio St.3d 24, 1998-Ohio-421, 697 N.E.2d 610, and Robertson v. Roberts, Trumbull App. No. 2003-T-0125, 2004-Ohio-7231, that the City and its employees can be liable for failure to train or supervise police officers is without merit. In Cater, the Ohio Supreme Court reiterated that determining whether a political subdivision is immune from liability involves the three-step analysis set forth above. Using this analysis, the Cater court determined on the facts of that case (a drowning at a municipal swimming pool) that former
{¶ 30} The City then argued under the third step of the analysis that
{¶ 31} Of note, the Supreme Court did not hold in Cater that wanton, willful, or reckless failure to train employees is an independent cause of action to which the three-step immunity analysis does not apply. Thus, the Eleventh District misinterpreted Cater in Robertson when it considered an alleged failure to properly train police officers as an independent basis for liability in a suit against a political subdivision.3 Furthermore, although
{¶ 33} Finally, because there is no exception to immunity for the training, supervision, or discipline of police officers, appellees’ assertion that it should be allowed to amend its complaint is without merit because any amendment would be futile.
{¶ 34} Appellants’ first assignment of error is sustained.
B. Adequacy of the Complaint
{¶ 35} Appellees’ first cause of action is premised on the exception to immunity set forth in
{¶ 36} “Except as otherwise provided in this division, political subdivisions are liable for injury, death, or loss to person or property caused by the negligent operation of any motor vehicle by their employees upon the public roads when the employees are engaged within the scope of their employment and authority.” Under
{¶ 37} Even if a political subdivision is immune from liability, a municipality‘s employees may be held individually liable for their intentional torts upon a showing of malice or wanton or reckless behavior, or if the employees’ actions were manifestly outside the scope of the employees’ employment or official responsibilities.
{¶ 38} To preclude the City‘s immunity defense, in their first cause of action, appellees alleged that Officers McLain and Lawrence “acted recklessly, willfully and/or wantonly in their initiation, continuation and the manner in which they conducted their high speed pursuit of the stolen vehicle under the circumstances” and that the City was liable as a result of the officers’ actions. In the alternative, appellees alleged that the officers “operated their patrol car negligently during a non-emergency call.”
{¶ 39} With respect to Chief McGrath and Sergeant Gibian‘s individual liability, appellees’ second, third, and fourth causes of action asserted that Chief McGrath acted “recklessly, willfully and/or wantonly” by failing to ensure that Officers McLain and Lawrence were adequately trained on the proper pursuit of suspects and adequately supervised, and that an adequate communication system existed. In their fifth cause of action, appellees alleged that Chief McGrath and Sergeant Gibian acquiesced to Officers
{¶ 40} In their second assignment of error, the municipal defendants argue that appellees’ attempts to evade the City‘s immunity and to impose individual liability on Chief McGrath and Sergeant Gibian by alleging reckless and wanton misconduct fails because the complaint does not allege sufficient facts to establish such conduct. Hence, they contend that the trial court should have granted their motion for judgment on the pleadings with respect to appellees’ first cause of action, as well as the second, third, fourth, and fifth causes of action as asserted against Chief McGrath and Sergeant Gibian in their individual capacities. They further contend that the eighth, ninth, and tenth causes of actions fail as well.
{¶ 41} “While a complaint attacked by a * * * motion to dismiss does not need detailed factual allegations, the [plaintiffs‘] obligation to provide the grounds for their entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level.” Parsons, supra at ¶ 11, citing Bell Atlantic Corp. v. Twombly (2007), 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929. Conclusory statements in a complaint that are not supported by facts are not afforded the presumption of veracity and are insufficient to withstand a motion to dismiss. Id.; Vagas v. Hudson, Summit App. No. 24713, 2009-Ohio-6794, ¶ 13, citing Mitchell v. Lawson Milk Co. (1988), 40 Ohio St.3d 190, 193, 532 N.E.2d 753. “While legal conclusions can
{¶ 42} Here, appellees’ complaint alleges willful and wanton misconduct but does not allege sufficient facts to support that conclusion. The factual allegations of the complaint allege only that as she was crossing Prospect Avenue with her husband, Virginia DiGiorgio was struck and killed by someone driving a stolen car that was being pursued by the police. These “circumstances” do not demonstrate willful and wanton misconduct by the police. The fact that an individual was struck and killed by a stolen vehicle being chased by the police is not sufficient, by itself, to demonstrate willful and wanton misconduct. Appellees’ allegation that the officers’ high speed chase was willful and wanton “under the circumstances” is merely a conclusory statement about the officers’ conduct that is designed to evade the City‘s immunity, but is not supported by sufficient factual allegations. As the municipal defendants argue in their brief, “[appellees‘] complaint only parrots an exception to immunity without suggesting facts to support that legal conclusion.”
{¶ 43} We are not persuaded by appellees’ argument that their factual allegations sufficiently alleged willful and wanton misconduct because the complaint alleged that the officers engaged in a high-speed pursuit of “a 13-year-old in the city‘s theater district.” The complaint never mentions Hairston‘s age, or even that the driver of the stolen car was a juvenile, and it makes no mention that the DiGiorgios were in the “theater district.”
{¶ 44} Appellees’ allegation in paragraph seven that the officers “operated their patrol car negligently during a non-emergency call” does not save its first cause of action from dismissal.
{¶ 45} Because the scant factual allegations of appellees’ complaint are insufficient to allege any exception to immunity regarding the officers’ operation of their motor vehicle, the City is immune from liability, and the trial court should have granted the motion to dismiss with respect to the first cause of action. Because the City is immune from liability, Count 8, the survivorship claim relating to any pain and suffering experienced by Virginia DiGiorgio before she died, necessarily fails, and the trial court should have also dismissed that count.
{¶ 46} Appellees’ second, third, and fourth causes of action assert that Chief McGrath acted “recklessly, willfully and/or wantonly” by failing to ensure that Officers McLain and Lawrence were adequately trained on the proper pursuit of suspects and adequately supervised, and that an adequate communication system existed. In their fifth cause of action, appellees allege that Chief McGrath and Sergeant Gibian acquiesced to
{¶ 47} But appellees’ assertions of reckless, willful, and/or wanton misconduct by Chief McGrath are unsupported by any factual allegations whatsoever in the complaint. Specifically, the complaint contains no facts regarding what training Chief McGrath did or did not provide to Officers McLain and Lawrence and, in fact, there is not a single factual allegation in the complaint concerning anything prior to August 4, 2007. Nor is there any allegation that Chief McGrath had a statutorily-imposed duty to provide such training. In short, the complaint is devoid of any factual allegations that would support appellees’ conclusion that Chief McGrath recklessly failed to ensure that the officers’ training was adequate.
{¶ 48} Likewise, the complaint contains no factual allegations to support appellees’ conclusion that Chief McGrath recklessly failed to supervise Officers McLain and Lawrence on August 4, 2007. Further, there are no factual allegations in the complaint that the communication system used by the police on August 4, 2007 was inadequate or not functioning (in fact, the complaint makes no mention of the communication system at all other than in the fourth cause of action) and, hence, no factual allegations to support appellees’ conclusion that Chief McGrath recklessly failed to ensure there was an adequate and functioning communication system. Similarly, there are no factual allegations in the complaint relating to Chief McGrath and Sergeant Gibian‘s alleged authorization or
{¶ 49}
{¶ 50} Here, even under the broad notice-pleading requirements of
{¶ 52} The City is likewise immune with respect to Count 10, which alleged negligent infliction of emotional distress. No such claim falls within one of the five exceptions to the City‘s immunity under
{¶ 53} Appellants’ second assignment of error is sustained.
Judgment reversed.
It is ordered that appellees pay the 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.
KATHLEEN ANN KEOUGH, JUDGE
PATRICIA ANN BLACKMON, P.J., and EILEEN A. GALLAGHER, J., CONCUR