Fuller v. Cuyahoga Metro.Hous. Auth.Fuller v. Cuyahoga Metro.Hous. Auth.
JUDGMENT: AFFIRMED
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-653230
BEFORE: Stewart, P.J., Boyle, J., and Sweeney, J.
RELEASED: September 10, 2009
ATTORNEYS FOR APPELLANT
Nancy C. Schuster
Kami D. Rowles
Schuster & Simmons Co., L.P.A.
The Bevelin House
2913 Clinton Avenue
Cleveland, OH 44113-2940
ATTORNEYS FOR APPELLEE
Ernest L. Wilkerson, Jr.
Kathryn M. Miley
Wilkerson & Associates Co., L.P.A.
1422 Euclid Avenue, Suite 248
Cleveland, OH 44115
N.B. This entry is an announcement of the court‘s decision. See
MELODY J. STEWART, P.J.:
{¶ 2}
{¶ 3} Fuller‘s complaint alleged that he had been a 16-year CMHA employee. He worked as a boilermaker and maintained, repaired and serviced heating boilers and residential heating units. On the night of his arrest, Fuller was drеssed in CMHA-issued attire consisting of a shirt, a hat with the CMHA heating logo, and a “CMHA issued coat” with his name embroidered on the chest. Fuller entered a vacant CMHA unit that he and other boilermakers used as a “rest stop and office.” Prior to his arrival at the unit, defendant police officers Burdyshaw and Harris had parked their car on the street. Fuller entered the unit and used the restroom. The officers followed and tried to enter the unit, but their master keys did not work. They knocked, but Fuller “was in the restroom and did not answer.” When Fullеr exited the unit, the officers “ran up to him with guns drawn” and surrounded him.
{¶ 5} Fuller set forth two claims for relief: (1) negligent hiring, retentiоn, supervision, and training and (2) intentional infliction of emotional distress. CMHA did not answer the complaint, but filed a motion to dismiss in which it argued that it is a political subdivision and was immune from liability.
{¶ 6} Fuller asked for an extension of time in which to respond to CMHA‘s motion to dismiss and at the same time asked the court to stay ruling on the motion to dismiss pending the supreme court‘s release of Moore. He told the court that Moore would decide whether the operation of a housing facility by a metropolitan housing authority is a governmental function and, if so, whether a hоusing unit is a building used to perform a governmental
{¶ 7} The court granted the motion to dismiss and denied the motion to stay.1
{¶ 8} We engage in a three-tiеred analysis to determine whether a political subdivision is entitled to immunity from civil liability pursuant to
{¶ 9} In Moore, the supreme court held that a metropolitan housing authority is a political subdivision. Id. at ¶8. It further held that: “The operation of a public housing authority is a governmental function under
{¶ 10} The second tier of the sovereign immunity analysis requires us to consider whether there are any applicable defenses under
{¶ 11} “(4) Except as otherwise provided in section 3746.24 of the Revised Code, pоlitical subdivisions are liable for injury, death, or loss to person or property that is caused by the negligence of their employees and that occurs within or on the grounds of buildings that are used in connection with the performance of a govеrnmental function, including, but not limited to, office buildings and courthouses, but not including jails, places of juvenile detention, workhouses, or any other detention facility, as defined in section 2921.01 of the Revised Code.”
{¶ 12} Moore states that “a unit of public housing is a building ‘used in connection with the performance of a governmental function’ within the meaning of
{¶ 13} The third tier of the analysis requires us to consider whether CMHA proved any of the defenses to liability set forth under
{¶ 14} “(3) The political subdivision is immune from liability if the action or failure to act by the employee involved that gave rise to the claim of liability was within the discretion of the employee with respect to policy-making, planning, or enforcement powers by virtue of the duties and responsibilities of the office or position of the employeе.”
{¶ 15} The statute does not define the term “discretion,” but in other contexts the supreme court has stated that discretion involves the option between the “doing and not doing of a thing which cannot be demanded as an absolute legal right[.]” Krupp v. Poor (1970), 24 Ohio St.2d 123, paragraph two of the syllabus. Inherent in the concept of discretion is the understanding that the person in whom discretion is reposed must act in a
{¶ 16} The negligent hiring claim alleged that CMHA аnd its chief of police knew or should have known that the police officers who took part in Fuller‘s arrest were “incompetent to perform their duties” and that by negligently hiring and retaining the officers, the chief of police acted with a mаlicious purpose and in bad faith because he knew or should have known that the officers were inadequately trained in the use of force and “constitutional requirements[.]”
{¶ 17} CMHA is immune from liability for negligent hiring and supervisionunder
{¶ 18}
{¶ 20} Fuller did not allege that the officers were acting outside the scope of their defined duties, but that they exercised those duties negligently. However, “* * * state officers have no liability under the doctrine of official immunity for the erroneous exercise of discretion resulting from negligence or mistake of judgment where such discretion is exercised in good faith * * *.” Smith v. Wait (1975), 46 Ohio App.2d 281, 285. As alleged in the complaint, the officers had authority to search, detain, and arrest. Fuller‘s factual allegations show that the officers both detained and arrested him as a result
{¶ 21} Finally, Fuller claims the court abused its discretion by not giving him the chance to file a brief in opposition to CMHA‘s motion to dismiss, but the record indicates otherwise. Fuller requested a seven-day extension of time until April 28, 2008 to file his brief in opposition to the motion to dismiss. Rather than file the brief in opposition on the date he requested, he filed a motion to stay the proceedings. The court extended the time for Fuller‘s briеf in opposition until April 28, 2008, but Fuller did not file the brief, apparently choosing to wait for a decision on his motion to stay. As of September 19, 2008, the date on which the court granted CMHA‘s motion to dismiss, Fuller had not filed his brief in opposition to the motion to dismiss. At no point did Fuller seek an additional extension of time to file a
{¶ 22} We therefore conclude from the complaint that Fuller can prove no set of facts entitling him to recovery on his claims against the arresting officers and his negligent hiring claim. As a matter of law, the defendants are immune from liability under
{¶ 23} Judgment affirmed.
It is оrdered that appellees recover of appellant their 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 Cuyahoga County Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
MELODY J. STEWART, PRESIDING JUDGE
MARY J. BOYLE, J., and
JAMES J. SWEENEY, J., CONCUR