LINDA GARMBACK v. CITY OF CLEVELAND, ET AL.
No. 110295
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
May 5, 2022
2022-Ohio-1490
EMANUELLA D. GROVES, J.
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-18-902195
RELEASED AND JOURNALIZED: May 5, 2022
Appearances:
O‘Toole, McLaughlin, Dooley & Pecora Co., LPA, Anthony R. Pecora, Patrick M. Ward, and Steven Bosak, for appellee.
Mark Griffin, Cleveland Director of Law, and Craig J. Morice, Assistant Director of Law, for appellant.
EMANUELLA D. GROVES, J.:
{¶ 1} Defendant-appellant city of Cleveland (the “City“) аppeals the denial of its motion for summary judgment. For the reasons that follow, we reverse in part, affirm in part, and remand for further proceedings.
{¶ 2} Clifford Paul Gilmore Jr. (“Gilmore“) was killed in a car accident on April 5, 2007. Linda Garmback (“Garmback“), his sister, made the arrangements for his burial with Ripepi and Sons Funeral Home (“Riрepi“). Ripepi handled the details as requested by the family, including making arrangements for Gilmore to be buried at West Park Cemetery (“West Park“), a cemetery owned and operated by the City. Garmback‘s parents and daughter are buried at West Park. Garmback visited the graves of her family members regularly, usually on holidays аnd birthdays.
{¶ 3} Shortly after Gilmore‘s death, Garmback purchased a burial plot for herself next to Gilmore. In 2008, the family purchased a headstone for Gilmore‘s grave. Garmback visited her brother‘s grave weekly the first year, then less often over time.
{¶ 4} Years later on May 13, 2018, Mother‘s Day, Garmback went to the cemetery to visit hеr deceased family members. When she arrived at her brother‘s grave, she noticed that there was a headstone for “Francisca Garcia” on the plot next to her brother‘s. Garmback believed the headstone was on the plot she had purchased for herself. On May 16, 2018, she went to West Park and spoke with Mike Strauss (“Strauss“), the cemetery manager, about the headstone.
{¶ 5} That same day, Strauss investigated and determined that Gilmore‘s headstone was in the wrong location. Gilmore‘s headstone had been placed on a grave in section 31, lot 347. Strauss learned that Gilmore was actually buried in an
{¶ 6} Garmback was devastated on learning that she had been visiting the wrong grave for 11 years. Further, the mistake made her question whether her brother‘s rеmains were located where the City claimed they were. In her deposition, Garmback testified that she suffered from emotional distress as a result of this situation. She described crying over almost anything. She became depressed causing her to become overly emotional and causing her to sleep uр to 16 hours a day. Finally, she described disinterest in doing her typical daily activities.
{¶ 7} On August 15, 2018, Garmback filed suit against the City alleging negligence, negligent or reckless infliction of emotional distress, breach of contract, and respondeat superior. On February 18, 2019, Garmback filed an amended complaint, adding Milano Monuments, LLC (“Milаno“) as a defendant, alleging injury due to Milano‘s negligence, negligent or reckless infliction of emotional distress, and respondeat superior. During discovery, Garmback learned that an employee from Milano was responsible for placing Gilmore‘s headstone on the incorrect grave.
{¶ 8} On January 15, 2020, thе City filed a motion for summary judgment arguing that they were entitled to political subdivision immunity under
{¶ 10} On January 14, 2021, the trial court summarily denied the City‘s motion. The City appeals and assigns the fоllowing sole error for our review:
Assignment of Error
The trial court erred as a matter of law in failing to grant summary judgment in favor of the City of Cleveland on the ground of Political Subdivision Immunity as set forth in
R.C. 2744.01 , et., seq.
Jurisdiction
{¶ 11} As an initial matter, we must address jurisdiction. Typically, an order denying a motion for summary judgment is not a final, appealable order. Ceasor v. E. Cleveland, 2018-Ohio-2741, 112 N.E.3d 496, ¶ 13 (8th Dist.), citing Hubbell v. Xenia, 115 Ohio St.3d 77, 2007-Ohio-4839, 873 N.E.2d 878, ¶ 9, citing State ex rel. Overmeyer v. Walinski, 8 Ohio St.2d 23, 24, 222 N.E.2d 312 (1966). However,
An order that deniеs a political subdivision or an employee of a political subdivision the benefit of an alleged immunity from liability as provided in this chapter or any other provision of the law is a final order.
{¶ 12} While we are authorized to review the trial court‘s decision, the scope of that review is limited. Id. at ¶ 14. We may only examine “alleged errors in the portion of the trial court‘s decision that denied the benefit of immunity.” Id., citing Reinhold v. Univ. Hts., 8th Dist. Cuyahoga No. 100270, 2014-Ohio-1837, ¶ 21, citing
{¶ 13} Preliminarily, we must look at Garmback‘s breach-of-contract claim as it relates to political subdivision immunity. The benefit of immunity is unavailable to political subdivisions in contract claims. Pursuant to
{¶ 14} Review of the trial court‘s denial of the City‘s motion for summary judgment on the breach-of-contract claim is outside the scope of our jurisdiction. Therefore, the denial of the summary judgment as it relates to the contract claim remains.
{¶ 15} Consequently, we will confine our review to the remaining causes of action.
Standard of Review
{¶ 16} Our review of summary judgment is de novo. Johnson v. Cleveland City School Dist., 8th Dist. Cuyahoga No. 94214, 2011-Ohio-2778, ¶ 33. In a de novo review, “we afford no deference to the trial court‘s decision and independently
{¶ 17} Summary judgment is appropriate when “(1) no genuine issue as to any material fact exists; (2) the party moving for summary judgment is entitled to judgment as a matter of law; and (3) viewing the evidence most strongly in favor of the nonmoving party, reasonable minds can only reach one conclusion which is adverse to the nonmoving party.” Ceasor, 2018-Ohio-2741, 112 N.E.3d 496 at ¶ 15, citing Hull v. Sawchyn, 145 Ohio App.3d 193, 196, 762 N.E.2d 416 (8th Dist.2001).
{¶ 18} “The burden of showing that no genuine issue of material fact exists falls on the party who moves for summary judgment.” Sickles v. Jackson Cty. Hwy. Dept., 196 Ohio App.3d 703, 2011-Ohio-6102, 965 N.E.2d 330, ¶ 12 (4th Dist.), citing Dresher v. Burt, 75 Ohio St.3d 280, 294, 662 N.E.2d 264 (1996). To meet this burden, the moving party must reference “the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action,” that demonstrate the nonmoving party has no evidence to support their claims. Id., citing
{¶ 19} “‘There is a three-tiered analysis to determine whether a political subdivision is immune from liability under
{¶ 20}
{¶ 21} Under the second tier, the immunity conferred under
{¶ 22} The third tier of political subdivision immunity analysis comes into operation if it is determined that one of the exceptions to immunity under
{¶ 24} Under the second tier, we examine exceptions to immunity. For proprietary functions,
{¶ 25} For ease of analysis, we will examine Garmback‘s negligence, negligent infliction of emotional distress, and respondeat superior claims first. Then we will address the claim for reckless infliction of emotional distress as it requires a different analysis.
R.C. 2744.02(B)(2)
Negligence
{¶ 26} In order to demonstrate that
{¶ 27} Tо establish negligence, Garmback must show “the existence of a duty, a breach of that duty, and that the breach was the proximate cause of an injury.” Everett v. Parma Hts., 8th Dist. Cuyahoga No. 99611, 2013-Ohio-5314, ¶ 15, quoting Nelson v. Cleveland, 8th Dist. Cuyahoga No. 98548, 2013-Ohio-493, at ¶ 22.
{¶ 28} In the instant case, it is undisputed that Gilmore‘s headstone was placed on the wrong grave. The City argues that they had no duty to properly place the headstone. Absent a duty of care, negligence cannot occur. We agree.
{¶ 29} A review of the case law establishes that there is no “cognizable duty to provide a proper and dignified burial aside from appropriate contractual obligations.” Frys v. Cleveland, 107 Ohio App.3d 281, 284, 286, 668 N.E.2d 929 (8th Dist.1995), see also Dunker v. Babitt Funeral Home, 8th Dist. Cuyahoga No. 69727, 1996 Ohio App. LEXIS 1692 (Apr. 25, 1996).
{¶ 31} The court of appeals found that the dismissal of the negligence claim was proper. Where the plaintiff did not allege mishandling of the remains or desecration of the grave, the court found that there was no cause of action for wrongful burial. The court found the dismissal proper “whether we view appellant‘s negligence claim as relating to the misplacement of the headstone or the burial site.” Id. at 6.
{¶ 32} The Frys Court made a similar finding when reviewing the misplacement of a burial site. We found that the trial court erred when it denied Cleveland‘s mоtion for a directed verdict because Ohio does not recognize a cause of action for wrongful burial. Nor is there a duty to provide a proper and dignified burial. Frys, 107 Ohio App.3d at 284, 668 N.E.2d 929.
{¶ 34} The facts in this case simply are not of the type that would permit a finding of negligence. Garmback has not аlleged that the City mishandled Gilmore‘s remains or that it desecrated his grave. Garmback argues and the City agrees, that the City misplaced Gilmore‘s headstone, which is not actionable negligence, as a matter of law. Dunker.
{¶ 36} Accordingly, the trial court erred in denying the City‘s motion for summary judgment as to the negligence claim.
Negligent Infliction of Emotional Distress
{¶ 37} As we have already discussed briefly, while there is no cause of action for wrongful burial in Ohio, the state does recognize a cause of action for abuse of a dead body, which would include mishandling a dead body and desecration. Frys, 107 Ohio App.3d at 284, 668 N.E.2d 929. “Mental anguish resulting from the mishandling of dead bodies has long been acknowlеdged.” Knollwood Cemetery Assn., 33 Ohio App.3d 31, 514 N.E.2d 430 paragraph one of the syllabus.
{¶ 38} On the other hand, where the evidence does not show that there was outrageous or egregious mistreatment of remains or desecration, courts have refused to find negligent infliction of emotional distress.
{¶ 39} In the instant case, looking at the evidence in а light most favorable to Garmback, there is no evidence that Gilmore‘s remains were desecrated or misplaced. The type of outrageous and egregious conduct that lends support to a claim of negligent infliction of emotional distress simply did not happen here.
Respondeat Superior
{¶ 41} “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
{¶ 42} Accordingly, the trial court erred in denying the City summary judgment as to the claim of respondeat superior.
Reckless (Intentional) Infliction of Emotional Distress
{¶ 43} We now turn to the intentional tort of reckless infliction of emotional distress. Intentional infliction of emotional distress is defined as “one who by extreme and outrageous conduct intentionally or recklessly causes serious emotional distress to another.” Seminatore v. Redmond, 8th Dist. Cuyahoga No. 54806, 1988 Ohio App. LEXIS 5002, 11 (Dec. 15, 1988), quoting Yeager v. Local Union 20, 6 Ohio St.3d 369, 453 N.E.2d 666 (1983), syllabus. “Under Ohio law, reckless infliction of emotional distress and intentional infliction of emotional distress are the same cause of action.” Hunt v. Toledo Law Dept., 881 F.Supp.2d 854, 886 (N.D.Ohio 2012), citing Ward v. Cty. of Cuyahoga, 721 F.Supp.2d 677, 695 (N.D.Ohio 2010), fn. 8; N.D.Ohio No. 1:03 CV 2075, 2006 U.S. Dist. LEXIS 11913 (Mar. 21, 2006), citing Russ v. TRW, Inc., 59 Ohio St.3d 42, 570 N.E.2d 1076 (1991).
{¶ 44} There is no evidence in this record that the City‘s employees intentionally or recklessly misplaced Gilmore‘s headstonе. Regardless, “[i]t is * * * well established that political subdivisions are immune from intentional torts under
{¶ 45} Accordingly, the trial court erred when it denied summary judgment to the City on the reckless infliction of emotional distress claim.
{¶ 46} Finally, as the exception under
{¶ 47} For thе foregoing reasons, we reverse the trial court‘s ruling denying summary judgment as to the negligent, negligent and reckless infliction of emotional distress, and respondeat superior claims, affirm the trial court‘s ruling with respect
{¶ 48} Judgment affirmed in part, reversed in part, and remanded.
It is ordered that appellant and appellee split 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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
EMANUELLA D. GROVES, JUDGE
KATHLEEN ANN KEOUGH, P.J., and MARY EILEEN KILBANE, J., CONCUR