Grassia v. ClevelandGrassia v. Cleveland
JUDGMENT: REVERSED AND REMANDED
Robert J. Triozzi
Director of Law
City of Cleveland
Jerome A. Payne, Jr.
Assistant Director of Law
Room 106 – City Hall
601 Lakeside Avenue
Cleveland, Ohio 44114
ATTORNEY FOR APPELLEES
Paul V. Wolf
Dubyak & Goldense
920 Terminal Tower
50 Public Square
Cleveland, Ohio 44113-2206
N.B. This entry is an announcement of the court’s decision. See
{¶ 1} Defendant-appellant, the city of Cleveland (“the City”), appeals the trial court’s decision denying its motion for summary judgment. Finding merit to the аppeal, we reverse and remand.
{¶ 2} This appeal arises from a lawsuit filed in 2007 by plaintiffs-appellees, Richard and Karen Grassia (individually as “Richard” and “Karen” and collectively as the “Grassias”), against the City, alleging that the City committed a common-law employer intentional tort when Richard contracted Legionnaire’s disease while working as a truck driver in the City’s streets department.1 The Grassias further alleged that the City had knowledge of the presence of Legionnaire’s disease at the work facility and failed to remedy the condition. The City moved to dismiss the matter, arguing that it was immune under
{¶ 3} The City then appealed to this court, arguing that the trial court erred in denying its motion to dismiss. See Grassia v. Cleveland, Cuyahoga App. No. 91013, 2008-Ohio-3134. We dismissed that appeal, finding that “[b]ecause the court denied the City’s motion in this case without elaboration
{¶ 4} On remand, the City proceeded with discovery and moved for summary judgment, again arguing immunity from employer intentional tort claims under
{¶ 5} It is from this order that the City now appeals, raising one assignment of error, in which it argues that the trial court erred by denying the City’s motion for summary judgment because it is immune from intentional torts claims under
{¶ 6} Appellate review of summary judgment is de novo. Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105, 671 N.E.2d 241; Zemcik v. LaPine Truck Sales & Equip. Co. (1998), 124 Ohio App.3d 581, 585, 706 N.E.2d 860. The Ohio Supreme Court set forth the appropriate test in Zivich v. Mentor Soccer Club (1998), 82 Ohio St.3d 367, 369-370, 696 N.E.2d 201, as follows:
“Pursuant to Civ.R. 56, summary judgment is appropriate when (1) there is no genuine issue of material fact, (2) the moving party is entitled to judgment аs a matter of law, and (3) reasonable minds can come to but one conclusion and that conclusion is adverse to the nonmoving party, said party being entitled to have the evidence construed most strongly in his favor. Horton v. Harwick Chem. Corp. (1995), 73 Ohio St.3d 679, 653 N.E.2d 1196, paragraph three of the syllabus. The party moving for summary judgment bears the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Dresher v. Burt (1996), 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264, 273-274.”
{¶ 7} Once the moving party satisfies its burden, the nonmoving party “may not rest upon the mere allegations or denials of the party’s pleadings, but the party’s response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.”
{¶ 8} The Political Subdivision Tort Liability Act, as codified in
{¶ 9} “The second tier of the analysis requires a court to determine whether any of the five exceptions to immunity listed in
Exceptions to Political Subdivision Immunity
{¶ 11} Under the second tier of the analysis, the City may be liable if one of the following exceptions under
Applicability of R.C. Chapter 2744
{¶ 12} Here, the City argues that it is immune from Richard’s employer intentional tort claim. The Grassias argue that
{¶ 14} The Catalano court found that
{¶ 15} The Grassias further argue that
{¶ 16}
{¶ 17} Because Richard’s injuries allegedly occurred within the scope of his employment, it would seem at first glance that
{¶ 18} In Brady v. Safety-Kleen Corp. (1991), 61 Ohio St.3d 624, 576 N.E.2d 722, the Ohio Supreme Court held that:
“A cause of action brought by an employee alleging intentional tort by the employer in the workplace is not preempted by Section 35, Article II of the Ohio Constitution, or by
R.C. 4123.74 and4123.741 . While such cause of action contemplates redress of tortious conduct that occurs during the course of employment, an intentional tort alleged in this context necessarily occurs outside the employment relationship. (Blankenship v. Cincinnati Milacron Chemicals, Inc. [1982], 69 Ohio St.2d 608, 23 O.O.3d 504, 433 N.E.2d 572, approved and followed.)” Id., paragraph one of the syllabus.
{¶ 20} In Ventura v. Independence (May 7, 1998), Cuyahoga App. No. 72526, this court upheld the lower court’s grant of summary judgment on behalf of the city of Independence in an action for intentional tort and intentional infliction of emotional distress brought by a former city worker. We found that
“‘Because Section 2744.02(B) includes no specific exceptions for intentional torts, courts have consistently held that political subdivisions are immunе from intentional tort claims. See, e.g., Wilson, supra (claims for fraud and intentional infliction of emotional
distress); Farra v. Dayton (1989), 62 Ohio App.3d 487, 576 N.E.2d 807 (claim for intentional interference with business interests); Monesky v. Wadsworth (Apr. 3, 1996), Medina App. No. 2478-M * * * (claims for trespass and demolition of a building). * * * “‘Ms. Ellithorp also argued in the trial court, and has argued on appeal, that Section 2744.09(B) of the Ohio Revised Code provides an exception to sovereign immunity applicablе to this case. * * * The school board has asserted, and this Court agrees, that Section 2744.09(B) is inapplicable to the facts of this case. An employer’s intentional tort against an employee does not arise out of the employment relationship, but occurs outside of the scope of employment. Brady [at] paragraph one of the syllabus.’”
{¶ 21} The Ventura court found such reasoning persuasive, stating that “to allow such claims as appellant’s would frustrate the purpose of both
{¶ 22} In Young v. Genie Industries United States, Cuyahoga App. No. 89665, 2008-Ohio-929, this court upheld the lower court’s grant of summary judgment on behalf of defendant, Euclid City School District, in an action for intentiоnal tort brought by Young, an employee of the school district. Young argued that
“Under
R.C. 2744.09(B) ,R.C. 2744 does not apply to ‘civil actions by an employee * * * against his political subdivision relative to any matterthat arises out of the employment relationship between the employee and the political subdivision.’ (Emphasis added.) * *
“Generally, an employee’s intentional tort claim does not arise out of the employment relationship. [Brady at paragraph one of the syllabus.] Further, in [Thayer v. W. Carrollton Bd. of Edn., Montgomery App. No. 20063, 2004-Ohio-3921, ¶15], the court held that political subdivision immunity applies to intentional torts because those claims do not arise out of the employment relationship. Therefore, we find that
R.C. 2744.09 is not an exception to political subdivision immunity in the context of intentional torts in the employment setting.” Id. at ¶23-24.
See, also, Chase v. Brooklyn City School Dist. (2001), 141 Ohio App.3d 9, 19, 749 N.E.2d 798 (where this court relied on Ventura and found that the school district, as a political subdivision, had immunity from plaintiff’s employer intentional tort claim.)6
{¶ 23} This court, in Magda v. Greater Cleveland Regional Transit Auth., Cuyahoga App. No. 92570, 2009-Ohio-6219, has also considered whether an employer intentional tort was exempted from immunity by
“Courts have held that
R.C. 2744.09(C) ‘make[s]R.C. Chapter 2744 inapplicable to civil actions pertaining to terms of employment brought by employees of political subdivisions against their employers.’ Poppy v. Willoughby Hills City Council, Lake App. No. 2004-L-015, 2005-Ohio-2071, at ¶29. This is because ‘[a]n employer’s intentional tort agаinst an employee does not arise out of the employment relationship, but occurs outside the scope of employment.’ [Ellithorp]. To the extent that Magda argues that RTA committed an intentional tort against him, that tort would have occurred outside the employment relationship[.] [Brady] * * *.”
{¶ 24} Furthermore, the Seventh District Court of Appeals in Fabian v. Steubenville, Jefferson App. No. 00 JE 33, 2001-Ohio-3522, noted that the language of
{¶ 26} Because the Grassias’ complaint failed to allege a cause of action that was an exception to
{¶ 27} Accordingly, the sole assignment of error is sustained.
{¶ 28} Judgment is reversed, and the matter is remanded with instructions for the trial court to enter summary judgment in favor of the City.
It is ordered that appellant recover of said appellees costs herein taxed.
The court finds therе 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.
COLLEEN CONWAY COONEY, JUDGE
SEAN C. GALLAGHER, A.J., DISSENTS (SEE ATTACHED DISSENTING OPINION)
SEAN C. GALLAGHER, A.J., DISSENTING:
{¶ 29} I respectfully dissent from the majority opinion and would affirm the judgment of the trial court. I believe the City is not entitled to immunity in this matter.
{¶ 30} This is an employer intentional tort action that was brought by an employee of the City who contracted Legionnaire’s disease. The employee claims that he was exposed to the disease at a work facility and that the City was aware of its presence, yet failed to remedy the condition. I would find that the allegеd conduct that forms the basis of the employer intentional tort claim arose under the employment relationship, and that the City is not entitled to immunity from the claim. I believe this claim is exempted by
{¶ 31} The Ohio Supreme Court has not expressly considered whether an employer intentional tort claim falls under the exemptions to immunity provided under
{¶ 32} In the context of workers’ compensation law, the Ohio Supreme Court has held that an intentional tort committed by an employer against an employee in the workplace “necessarily occurs outside the employment relationship.” Brady v. Safety-Kleen Corp. (1991), 61 Ohio St.3d 624, 635, 576 N.E.2d 722. Recently, the Ohio Supreme Court considered the constitutionality of the current employer intentional tort statute,
{¶ 33} Ohio appellate courts are split on the issue of whether
{¶ 34} Other cases have declined to extend the Brady holding to a determination of whether
{¶ 35} In Nagel, supra at ¶18, the court expressed that it was “not persuaded that the legislature intended to engraft the Supreme Court’s interpretation of the workers’ compensation scheme onto its general statutory provision for political-subdivision immunity. Because employer intentional torts are not a natural risk of employment, thе Supreme Court concluded that they occur outside of the employment relationship in the workers’ compensation context. * * * We continue to believe claims that are causally connected to an individual’s employment fit into the category of actions that are ‘relative to any matter that arises out of the employment relationship.’” (Citation omittеd.)
{¶ 36} Indeed, the Ohio Supreme Court has stated that immunity is not available to a political subdivision in an employee’s claim for unlawful discrimination, citing
{¶ 37} As stated by the Eleventh District in Fleming, supra at ¶41: “[W]e do not believe that the Brady holding acts as a per se bar to any intentional tort claim by a political subdivision employee against his or her employer. If the conduct forming the basis of the intentional tort arose out of the employment relationship, the employer does not have the benefit of immunity pursuant to the plain language of