TED SROKOWSKI v. MICHAEL SHAY, ET AL.
No. 100739
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
July 17, 2014
[Cite as Srokowski v. Shay, 2014-Ohio-3145.]
Kilbane, J., Celebrezze, P.J., and E.A. Gallagher, J.
JOURNAL ENTRY AND OPINION; [Appeal by City of Cleveland]; JUDGMENT: AFFIRMED
Barbara A. Langhenry
Director of Law
City of Cleveland - Law Department
William M. Menzalora
Chief Assistant Director of Law
Alejandro Corts
Aikaterini Houston
Assistant Directors of Law
601 Lakeside Avenue - Room 106
Cleveland, Ohio 44114
ATTORNEYS FOR APPELLEE
Brendan Delay
Ann F. Dewerth
24500 Center Ridge Road - Suite 160
Westlake, Ohio 44145
Also Listed:
For McNulty‘s Bier Markt, Bar 25, L.L.C.
Michelle I. Gorman
200 Stanton Boulevard - Suite 100
Steubenville, Ohio 43952
For Michael Shay
James L. Glowacki
James J. Imbrigiotta
Glowacki & Imbrigiotta, L.P.A.
7550 Lucerne Drive - Suite 408
Middleburg Heights, Ohio 44130
{1} This interlocutory appeal arises from a complaint filed by plaintiff-appellee Ted Srokowski (“Srokowski“) against the City of Cleveland (“Cleveland” or “the City“), variоus Cleveland police and corrections officers, McNulty‘s Bier Markt, Bar 25, L.L.C. (“Bier Markt“), and Bier Markt employees, for injuries sustained in the course of an arrest. The City appeals from the order of the trial court that dismissed approximately 14 of Srokowski‘s claims for relief, but denied the motion tо dismiss as to Srokowski‘s claims for negligent infliction of emotional distress and negligence. In light of our duty when reviewing a motion to dismiss filed pursuant to
{2} On March 14, 2013, Srokowski filed a complaint against Cleveland Police Officer Michael Shay (“Shay“), individually and in his official capacity, two other unknown Cleveland police officers in their official capacities, an unknown correction officer, the City, the Bier Markt, and an employee of the Bier Markt. As is relevant herein, Srokowski alleged that Shay and John Doe I “were at all times relevant herein[, detectives] of the Cleveland Police Department and acting under the color of law,” and
8. At all times relevant herein, the named individual Defendants Michael Shay, John Does I and II, and John/Jane Doe III, were acting in an official capacity as employees and/or agents of their employer and the conduct the subject of this action оccurred within the scope of their duties.
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16. Plaintiff Ted Srokowski fell asleep at a basement booth [at the Bier Markt.]
17. Defendant Michael Shay, who was wearing a Cleveland Police Department uniform, was providing security for the Bier Markt.
18. At approximately 1:50 a.m., 40 minutes before closing time, Defеndant Shay grabbed Plaintiff Ted Srokowski, who was * * * asleep in the booth, dragged him across the floor, forcibly threw Plaintiff Ted Srokowski to the ground and smashed his face into the floor.
19. Defendant Shay and John Doe I handcuffed Srokowski and repeatedly banged Mr. Srokowski‘s head into the cement after he was handcuffed, injuring his head and face.
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30. Plaintiff Ted Srokowski was secreted away from his family and then held prisoner in an upstairs room of the Bier Markt until more officers came to get him to take him outside [and then transported him to jail].
{3} Srokowski set forth a total of 18 claims for relief, including claims against thе City for assault, battery, deprivation of civil rights and excessive force, false imprisonment, negligence, negligent and intentional infliction of emotional distress, civil conspiracy, spoliation of evidence, abuse of process, defamation, and invasion of privacy, negligent hiring, training, supervision and discipline of officers, negligent failure to
{4} On June 17, 2013, the City filed a motion to dismiss pursuant to
{5} On November 12, 2013, the trial court granted the City‘s motion to dismiss in pаrt, and denied it in part in an order that stated:
[T]he only applicable exception to immunity in this fact pattern is whether the “negligent acts of an employee with respect to proprietary functions of the political subdivision” caused the injury. Due to the nature of defendant Shay‘s emрloyment at the time of the incident, a police officer serving as a security guard at a private establishment, it is unclear whether or not he was acting in a governmental or proprietary function. Normally, provision of police services is a governmental function. However, аn action is a proprietary function if it “promotes or preserves the public peace and involves activities that are customarily engaged in by nongovernmental persons.” Since defendant Shay was providing private security, he may have been acting in a propriety funсtion. The city * * * argues that if defendant Shay was engaged in a governmental function there is no exception to immunity that would serve to remove immunity from the city, and if the action was proprietary then the actions of the officer were not plead as negligence, but as intentional actions, and therefore the city is immune. As there are insufficient facts to determine if Officer Shay was acting pursuant to a governmental or proprietary function, only those allegations of intentional torts may be dismissed against the city.
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Claims against all other defendants remain pending in their entirety. * * *
Plaintiff‘s claims of negligent infliction of emotional distress and
negligence remain against the city only to the extent that the alleged injury was caused by the city‘s employee in the performance of a proprietary function.
{6} The City appeals, and assigns the following error for our review:
Thе trial court improperly denied the City of Cleveland‘s right to immunity under
R.C. 2744.02(A)(1) . Because Officer Michael Shay was engaged in a “governmental function” as defined byR.C. 2744.01 to include “[t]he provision of nonprovision of police * * * services or protection,” the City is immune from Plaintiff‘s negligence and negligent inflictiоn of emotional distress claims.
{7} The City argues that the complaint in its entirety fails to state a claim against the City because, as a matter of law, Shay and the other City defendants were acting in a governmental function at the time of the incident.
Standard of Review
{8} On appeal, this court applies the de novo standard of review in ruling upon a trial court‘s ruling on a motion to dismiss under
{9} Pursuant to
{10} In resolving a
{11} The question of whether a governmental employee or political subdivision is entitled to this statutory immunity is a question of law fоr a court‘s determination. Conley v. Shearer, 64 Ohio St.3d 284, 291, 595 N.E.2d 862 (1992); Feitshans v. Darke Cty., 116 Ohio App.3d 14, 19, 686 N.E.2d 536 (2d Dist.1996).
Political Subdivision Immunity
{12} In order to determine whether a political subdivision enjoys immunity under the Political Subdivision Tort Liability Act, as codified in
a political subdivision is not liable in damages in a civil action for injury, death, or loss to person or property allegedly caused by any act or omission of the political subdivision or an employee of the political subdivision in connection with a governmental or proprietary function.
{13} The second tier of the analysis requires a court to determine whether any of the five exсeptions to immunity listed in
{14} Regarding a
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In 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.
{15} In undertaking the first tier of the analysis in this case, we note, as a preliminary matter, that
(a) The function is not one described in division (C)(1)(a) or (b) of this section and is not one specified in division (C)(2) of this section;
(b) The function is one that promotes or preserves the public peace, health, safety, or welfare and that involves activities that are customarily engaged in by nongоvernmental persons.
{16} The Ohio Supreme Court has held, however, that when a political subdivision‘s acts go beyond governmental functions, and when it acts in a proprietary nature, there is little justification for affording immunity to that political subdivision. Greene Cty. Agricultural Soc. v. Liming, 89 Ohio St.3d 551, 559, 2000-Ohio-486, 733 N.E.2d 1141. “Having entered into activities ordinarily reserved to the field of private enterprise, a [political subdivision] should be held to the same responsibilities and liabilities as are private citizens.” Id., quoting Schenkolewski v. Cleveland Metroparks Sys., 67 Ohio St.2d 31, 37, 426 N.E.2d 784 (1981). The Liming court quoted at length
In performing those duties which are imposed upon the state as obligations of sovereignty, such as protection from crime, or fires, or contagiоn, or preserving the peace and health of citizens and protecting their property, * * * the function is governmental, and if the municipality undertakes the performance of those functions, whether voluntarily or by legislative imposition, the municipality becomes an arm of sovereignty and a governmental agency and is entitled to * * * immunity * * * If, on the other hand, there is no obligation on the part of the municipality to perform them, but it does in fact do so for the comfort and convenience of its citizens * * * and the city has an election whether to do or omit to do those aсts, the function is private and proprietary.
Another familiar test is whether the act is for the common good of all the people of the state, or whether it relates to special corporate benefit or profit.
The Wooster court expounded that “if the function being exercised is рroprietary and in pursuit of private and corporate duties, for the particular benefit of the [municipal] corporation and its inhabitants, as distinguished from those things in which the whole state has an interest, the city is liable.” 116 Ohio St. at 284, 156 N.E. at 211.
Id.
{17} Moreover, “[i]n the absence of an explicit statutory definition, whether a function is governmental or proprietary must be determined by ‘defining what it is that
{18} In this matter, the City insists that the complaint alleges a matter that occurred in connection with a governmental function. However, in examining the allegations of the complaint, Srokowski has alleged that Shay, who was wearing a Cleveland police uniform, was providing security for the Bier Markt, took a sleeping Srokowski, who was face down on a table, dragged him across the floor, forcibly threw him to the ground and smashed his face into the floor, bаnged Srokowski‘s head into the cement after he was handcuffed, brought him to an upper room of the Bier Markt, and held him there for a period of time. He was later arrested, booked into jail and incarcerated.
{19} From these allegations, it is not clear beyond doubt that Srokowski can prove no set of facts in support of his claim that would entitle him to relief. In this early stage of the proceedings, accepting as true all material allegations of the complaint and making all reasonable inferences in favor of Srokowski, it is not clear beyond dispute that this mаtter involves a governmental function. Further, Srokowski has asserted claims for negligent performance of a proprietary function, and negligent infliction of emotional distress, as is germane to the second tier of the immunity analysis.
{21} The City‘s assignment of error is without merit.
{22} Judgment is affirmed.
It is ordered that appellee recover from appellant 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.
MARY EILEEN KILBANE, JUDGE
FRANK D. CELEBREZZE, JR., P.J., and
EILEEN A. GALLAGHER, J., CONCUR