EDWARD McKEE v. UNIVERSITY CIRCLE, INC., ET AL.
No. 102068
Cоurt of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
July 23, 2015
2015-Ohio-2953
JUDGMENT: AFFIRMED
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-14-827925
BEFORE: Kilbane, J., Jones, P.J., McCormack, J.
RELEASED AND JOURNALIZED: July 23, 2015
Todd M. Raskin
Frank H. Scialdone
David M. Smith
Mazanec Raskin Ryder & Keller Co.
100 Franklin‘s Row
34305 Solon Road
Cleveland, Ohio 44139
Dan L. Makee
Kathleen J. Sanz
McDonald Hopkins Co., L.P.A.
2100 Bank One Center
600 Superior Avenue
Cleveland, Ohio 44114
APPELLEE
Edward McKee, pro se
2187 Murray Hill Road
Suite 5
Cleveland, Ohio 44106
ALSO LISTED
Attorneys for Kathy Vanduzer
Thomas A. Barni
Irwin J. Dinn
Dinn, Hochma & Potter, L.L.C.
Suite 200
5910 Landerbrook Drive
Mayfield Heights, Ohio 44124
{¶1} This appeal involves a single issue — the trial court‘s denial of defendants-appellants‘, University Circle, Inc., Mark Laubenthal (“Laubenthal“), Arthur Chenevey (“Chenevey“), Kenji Kurokawa (“Kurokawa“), John Pavelich (“Pavelich“), Scott Ford (“Ford“), and Chris Ronayne (collectively referred to as “UCI“), motion to dismiss on the basis of political subdivision immunity. Plaintiff-appellee, Edward McKee (“McKee“), responds as the trial court concluded — UCI is not entitled to political subdivision immunity at this initial pleading stage. After our de novo review of the matter, we agree with the trial court in that it is not clear beyond dispute, at this early stage in the proceedings, that UCI is a political subdivision entitled to immunity.
{¶2} The facts giving rise to this appeal are as follows.
{¶3} On June 10, 2012, McKee was moving from one apartment to another in Cleveland‘s Little Italy neighborhood. He was using a metal shopping cart he had found to transport his belongings, which were in trash bags and grocery bags. He left the shopping cart on the sidewalk in front of a store owned by defendant-Kathy Vanduzer (“Vanduzer“). Vanduzer called the police to complain about the shopping cart, which appeared to be abandoned. University Circle Police Department (“UCPD“) officers Laubenthal and Chenevey responded to the scene.1 They asked McKee for his personal information and social security number. McKee provided the officers his state
{¶4} The officers advised McKee that he could not leave his shoрping cart in a position that would block the sidewalk. They further advised him to leave his shopping cart behind his apartment building. The officers did not issue McKee a citation.
{¶5} One week later, on June 17, 2012, McKee submitted a misconduct complaint against Laubenthal. Kurokawa (UCPD‘s deputy chief) replied to McKee via email on June 26, 2012, advising him that the information is with human resources and he will be contacted once a resolution has been reached. Almost five months later, in November 2012, Kurokawa advised McKee that the investigation was complete and Laubenthal was counseled and disciplined for his conduct during their encounter. McKee, however, was still conсerned about the fact that his personal information remained in UCPD‘s computer system. He wanted to know who could access this information. He told Kurokawa that he did not consent to his information being retained in UCPD‘s records.
{¶6} McKee continued to follow up with Kurokawa through January 2013, at which point Ford (UCI‘s legal counsel and human resources manager) emailed McKee
{¶7} McKee‘s efforts culminated in the instant complaint, which he filed in June 2014. In his pro se complaint, McKee alleged breach of contract, intentional infliction of emotional distress, conspiracy to commit a tort, slander, libel, invasion of privacy, negligence, and violation of equal protection. He seeks injunctive relief and money damages for his mental distress and public humiliation.3 In response, UCI filed a motion to dismiss under
{¶8} It is from this ordеr that UCI appeals, raising the following single assignment of error for review.
Assignment of Error
The lower court erred by denying [UCI‘s] motion to dismiss because they are immune under
R.C. Chapter 2744 .
{¶10} We apply a de novo standard of review to the trial court‘s ruling on a motion to dismiss under
{¶11} In order for a trial court to dismiss a complaint under
{¶12} In resolving a
{¶13} UCI‘s motion to dismiss was premised on the argument that it was entitled to political subdivision immunity.4 In cases involving a
[i]n Ohio, a notice-pleading state, the plaintiff need not prove his or her case at the pleading stage. * * * Thus, a plaintiff need not affirmatively dispose of the immunity question altogether at the pleading stage. * * * Requiring a plaintiff to affirmatively demonstrate an exception to immunity at this stage would be tantamount to requiring the plaintiff to overcome a motion for summary judgment at the pleading stage. * * * Instead, a plaintiff must merely allege a set of facts that, if proven, would plausibly allow for recovery.
(Citations omitted.) Scott v. Columbus Dept. of Pub. Utils., 10th Dist. Franklin No. 10AP-391, 2011-Ohio-677, ¶ 8.
{¶14} In McKee‘s extremely detailed 53-page complaint, he has alleged that the responding officеrs mishandled the investigation, falsely accused him of abandoning the shopping cart, and falsely stated that the cart obstructed pedestrian traffic. He claimed that UCPD gave Vanduzer special treatment. He wanted his personal information
{¶15} When we look at the four corners of the complaint and our standard of review, it does not “appear beyond doubt” that McKee can prove no set of facts in support of his claim that would entitle him to relief. In this early stage of thе proceedings, accepting as true all material allegations of the complaint and making all reasonable inferences in McKee‘s favor, it is not clear beyond dispute that UCI is a political subdivision entitled to immunity.
{¶16} While the dissent describes this incident as trivial, it is evident from McKee‘s extensive complaint that this matter is not trivial to him. We are mindful of a deep-rooted historic tradition in our jurisprudence that provides that “everyone is entitled to their day in court.” This principle is guaranteed by the due process rights set forth in the Fifth and Fourteenth Amendments of the United States Constitution and the Ohio Constitution. Indeed, the “access-to-the-courts” provision found in
{¶17} In the instant case, UCI appealed a single issue — the denial of its motion to dismiss on immunity grounds. The trial court concluded that UCI is not entitled to political subdivision immunity at this initial stage of the proceedings. We agree with the
{¶18} Therefore, we affirm the trial court‘s order denying UCI‘s motion to dismiss.
{¶19} The sole assignment of error is overruled.
{¶20} Judgment is affirmed.
It is ordered that appellee recover of appellants 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 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.
MARY EILEEN KILBANE, JUDGE
LARRY A. JONES, SR., P.J., CONCURS;
TIM McCORMACK, J., DISSENTS (SEE SEPARATE DISSENTING OPINION)
TIM McCORMACK, J., DISSENTING:
{¶21} I respectfully dissent.
{¶22} This minority opinion is put forward with full and open respect for my colleagues and the determination that they have made herein. Ordinarily, I would vote
{¶23} McKee used a shopping cart to move his belongings from one apartment to another in the University Circle area in Cleveland. While moving, he left the shopping cart unattended in front of a retail shop. The shop owner complained to the police about the seemingly abandoned, unsightly shopping cart. Two police officers responded. They chose not to cite him for any criminal offense but advised McKee to park the cart behind his own apartment building. McKee, however, felt such grievance from the shop owner‘s involvement of the police that he waged a two-year battle, culminating in the instant lawsuit. Based on this trivial incident, he sued not only the shop owner but also University Circle Inc. (“University Circle” hereafter), a nonprofit organization in Cleveland‘s University Circle area that operates its own police department pursuant to an agreement with the city of Cleveland. He also sued six of University Circle‘s employees. He claimed breach of contract, intentional infliction of emotional distress, conspiracy to commit a tort, slander, libel, invasion of privacy, negligence, and violation of equal protection.
{¶24} This minor neighborhood dispute should never have survived University Circle‘s motion to dismiss based on its political subdivision immunity. No legitimate claim could be made upon which relief can or should be granted. Therefore, I would reverse the trial court‘s judgment denying the motion to dismiss.
{¶26} Here is what can be gleaned from McKee‘s allegations. He, at some point in time, appropriated a shopping cart that he said had been discarded. On the day of the incident involving the police department, he said he used the shopping cart to move his belongings, which were placed in garbage bags and grocery bags, from one apartment building to another along Murray Hill Road in Cleveland. He placed and then left the shopping cart in front of a small operating retail shop fronting Murray Hill Road, while he made trips across the street to his new apartment. The shop owner objected to the unsightly shopping cart being parked and seemingly abandoned directly in front of her walk-in business. She confronted McKee. The two exchanged words. He left with the shopping cart, but he soon returned with the cart carrying more belongings, and again
{¶27} McKee suspected the shop owner called the local police department, the University Circle policе department, to complain about the shopping cart. For their part, the officers asserted they themselves had noted the cart during patrol. In any event, the police responded to the shopping cart issue. After McKee finished transporting his belongings, he stood on his third floor balcony and saw a police officer beckoning him to come down.
{¶28} The sum total of the police department‘s response was they first noted a condition in a retail area, viewed the seemingly abandoned shopping cart, interviewed the shop owner and subsequently McKee, asked for and received identifying information from him, and then peacefully resolved the dispute. Or at least they thought so. The police advised McKee that instead of parking the shopping cart on a city sidewalk, in a retail district, in front of a walk-in business, the shopping cart should be parked behind his own apartment building. Most noteworthy, this advisory police response resulted in no citation being issued to McKee.
{¶29} McKee did not like how the police offers handled their investigation of the shop owner‘s complaint about his shopping cart. He insisted that his shopping cart in no way obstructed the shop‘s doorway or impeded the pedestrian traffic. A week after the shopping cart incident, he filed a misconduct complaint at UCPD against Offiсer Laubenthal, one of the two officers who responded. Although he did not receive a
{¶30} McKee also complained that the shop owner received special treatment from the police department: McKee claimed that the police officers responded to the shop owner‘s complaint about his shopping cart yet ignored his complaints about the shop owner‘s barking dog and illegally parked car. He alleged University Circle employees and the shop owner were targeting him because of his “appearance of poverty.” He suspected the shop owner frequently called the police to complain about him regarding his various activities.
{¶31} In McKee‘s own words, he “embarked on a multi-month effort to pressure [University Circle police department] into complying with [his] demands. [McKee] emailed governments and nonprofit organizations that [he] felt might hold influence with
{¶32} University Circle and its employees filed a motion to dismiss based on political-subdivision immunity. The trial court, without explanation or analysis, summarily denied University Circle‘s motion.
{¶33} This simmering grudge should have been dissolved away by common sense and mutual courtesy. Instead, the neighborhood quarrel escalated into a challenge of the legal status of the University Circle police department and its authority to perform police duties under the same legal umbrella that applies to all other properly chartered Ohio safety forces.
{¶34} For cases implicating immunity, “[w]hile immunity is an affirmative defense, where the complaint itself bears conclusive evidence that the action is barred by the defense, a
Immunity of Political Subdivisions and their Employees
{¶35} Under
{¶36} In the first tier of the analysis, the court applies the general rule provided in
{¶37} However, that immunity is not absolute. In the second tier of the analysis, the court determines whether any of the five exceptions enumerated in
{¶38} If any of the exceptions enumerated in
University Circle and Its Police Department
{¶40} University Circle is a significant nonprofit organization with over 40 fellow nonprofit institutions in the University Circle area as its members. Pursuant to
{¶41} Under
each police officer who is employed by a police department established by a qualified nonprofit corporation * * * is vested, while directly in the discharge of that police officer‘s duties as a police officer, with the same powers and authority as are vested in a police officer of a municipal corporation under Title XXIX of the Revised Code and the Rules of Criminal Procedure, and with the same powers and authority * * * as are vested in a police officer of a municipal corporation under
Chapter 4511. of the Revised Code .
Body Corporate and Politic
{¶43} Pursuant to
{¶44} In Uricich v. Kolesar, 132 Ohio St. 115, 5 N.E.2d 335 (1936), the Supreme Court of Ohio considered the meaning of the term “body politic.” Looking to the commonly accepted meaning of the term, and the derivation of the word “politic” from a root signifying “citizen,” the court concluded the phrаse “body politic” denoted “simply a group or body of citizens organized for the purpose of exercising governmental functions.” Id. at 118.
{¶46} University Circle established its police department and provided police services under the authority of
{¶47} The provision of police services and law enforcement is an activity traditionally reserved for the government. As such, University Circle is a “body
Claims Against University Circle
{¶48} McKee‘s tort claims against University Circle are considered first. Under the first tier of the immunity analysis, University Circle is a political subdivision and therefore immune from liability in its performing of a governmental function or proprietary function.
{¶49} Under the second tier, the immunity could be defeated if one of the five exceptions enumerated in
{¶50} The only potential exception that could be applicable here is
- A function that is imposed upon the state as an obligation of sovereignty and that is performed by a political subdivision voluntarily or pursuant to legislative requirement;
- A function that is for the common good of all citizens of the state;
- A function that promotes or preserves the public peace, health, safety, or welfare; that involves activities that are not engaged in or not customarily engaged in by nongovernmental persons; and that is not specified in division (G)(2) of this section as a proprietary function.6
{¶52} Having determined University Circle is entitled to immunity provided in
Employees’ Liability
{¶53} Employees of a political subdivision are entitled to a general grant of immunity but may be liable if one of the exceptions described in
{¶54} “Malicious purpose encompasses exercising ‘malice,’ which can be defined as the willful and intentional design to do injury, or the intention or desire to harm
{¶55} Wanton conduct is “the failure to exercise any care toward those to whom a duty of care is owed in circumstances in which there is great probability that harm will result.” Anderson v. Massillon, 134 Ohio St.3d 380, 2012-Ohio-5711, 983 N.E.2d 266, ¶ 33. Reckless conduct means “the conscious disregard of or indifference to a known or obvious risk of harm to another that is unreasonable under the circumstances.” Id. at ¶ 34.
{¶56} McKee claimed negligence, intentional infliction of emotional distress, conspiracy to commit a tort, and libel against various individuals employed by University Circle. When the court reviews a
{¶57} McKee‘s complaint is rife with legal conclusions but the factual allegations, even if given the benefit of the doubt, did not reflect operative facts for his claims that University Circle employees acted outside the scope of their employment, with malicious purpose, in bad faith, or in a wanton or reckless manner. Officers Laubenthal and Chenevey responded to a citizen complaining about a shopping cart, with garbage bags in it, seemingly abandoned on the sidewalk. After a routine investigation, during which the officers requested and verified McKee‘s identifying information, McKee was advised to park the cart behind his own apartment building and not to leave the cart unattended in front of others’ property. No citation was issued. When McKee pursued University Circle for a deletion of his personal information and the officers’ notations about the incident from University Circle police department‘s computer system, University Circle‘s legal counsel offered to meet with McKee in person to alleviate his concerns. McKee was also assured in writing that his identifying information will not be shared with any other agencies. Allegedly, in the midst of what appears to be ultimately a strained exchange between McKee and the responding police officers, personal, derogatory phrases were directed at McKee. Although this breakdown in civility is troubling, I find frustration. I do not find any employees’ actions rose to the
Breach-of-Contract Claim
{¶58} McKee also raises a breach-of-contract claim. He alleges he was an intended third-party beneficiary of the 1992 Authorization Agreement between University Circle and the city of Cleveland. He claims the responding officers’ “dismissive treatment of Plaintiff breached University Circle‘s contractual obligation to protect the cart, which is a property in the [subject area].”
{¶59} It is well-established that “private citizens have no right to enforce government contracts on their own behalf, unless a different intention is ‘clearly manifested’ in the contract.” (Citations omitted.) Duncan v. Cuyahoga Community College, 8th Dist. Cuyahoga No. 101644, 2015-Ohio-687, ¶ 32. McKee‘s complaint failed to allege sufficient operative facts showing such a clear manifestation in the Authorization Agreement between the city of Cleveland and University Circle to allow a breach-of-contract claim by a private citizen.
{¶60} Many allegations were made by McKee in his filings about his rights being violated. There is, however, a distinct absence in his writing and argument of any acknowledgment of the countervailing need for individuals to abide by uniform basic safety and health standards designed for the public good of the urban neighborhoods covered by University Circle — to work together for the collective safety, upkeep, and prosperity of the neighborhoods.
{¶61} I note with particular interest that at the very time that America‘s justice system is calling for the adoption of “community-based policing,” the police department in University Circle is practicing proactive community policing and demonstrated responsive policing in Cleveland‘s University Circle jurisdiction. The department timely responded to a condition where intervention was needed: it gathered information and requested cooperation from the subject who was identified as being responsible for an abandoned shopping cart. From a police department‘s perspective, an abandoned shopping cart full of garbage bags on a public walkway is a condition of legitimate concern. The police asked that the cart be removed to McKee‘s premises. He objected to their advice. All the rest of this flows from that.
{¶62} The multiple legal claims filed by McKee against University Circle, its employees, and a local businesswoman are way beyond frivolous. They are deleterious, expensive, and time consuming to litigate, and intentionally harassing in nature. All of these offensive actions need to be dismissed forthwith with prejudice.
Notes
- A “proprietary function” includes, but is not limited to, the following:
- The operation of a hospital by one or more political subdivisions;
- The design, construction, reconstruction, renovation, repair, maintenance, and operation of a public cemetery other than a township cemetery;
- The establishment, maintenance, and operation of a utility, including, but not limited to, a light, gas, power, or heat plant, a railroad, a busline or other transit company, an airport, and a municipal corporation water supply system;
- The maintenance, destruction, operation, and upkeep of a sewer system;
- The operation and control of a public stadium, auditorium, civic or social center, exhibition hall, arts and crafts center, band or orchestra, or off-street parking facility.