Ceasor v. City of Cleveland

• Citation: 2018 Ohio 2741,112 N.E.3d 496
• Decision Date: 12 July 2018
• Docket Number: No. 106544,106544
• Parties: Latoya CEASOR, Individually and as Administratrix, Plaintiff-Appellee v. CITY OF EAST CLEVELAND, et al., Defendants-Appellants
• Court: Ohio Court of Appeals

112 N.E.3d 496

2018 Ohio 2741

Latoya CEASOR, Individually and as Administratrix, Plaintiff-Appellee

v.CITY OF EAST CLEVELAND, et al., Defendants-Appellants

No. 106544

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

RELEASED AND JOURNALIZED: July 12, 2018

Willa M. Hemmons, Law Director, City of East Cleveland, 14340 Euclid Avenue, East Cleveland, OH 44112, ATTORNEY FOR APPELLANTS

Michael D. Goldstein, Joseph N. Cindric, Goldstein & Goldstein Co., L.P.A., 55 Public Square, Suite 2075, Cleveland, OH 44113, ATTORNEYS FOR APPELLEE

BEFORE: McCormack, P.J., Laster Mays, J., and Jones, J.

JOURNAL ENTRY AND OPINION

TIM McCORMACK, P.J.:

{¶ 1} Defendants-appellants, the city of East Cleveland ("the city") and East Cleveland patrol officer Kyle Pettus ("Pettus"), appeal from the trial court's denial of their motion for summary judgment. For the reasons that follow, we affirm and remand.

Procedural and Substantive History

{¶ 2} This appeal stems from a wrongful death action instituted against the city of East Cleveland. The following factual summary is based on the Ohio State Highway Patrol Reconstruction Report. Both parties relied on this report in their filings before the trial court.

{¶ 3} On October 3, 2015, at approximately 9:30 p.m., 22-year-old Christopher Kimble ("Kimble") was in a crosswalk when Pettus struck and killed him. Pettus was driving a police cruiser with one nonfunctioning headlight. Additionally, the cruiser's lights and sirens were not activated. The speed limit for the area of the incident, the intersection of Superior Avenue and Emily Street in East Cleveland, was 25 miles per hour. At the time of the accident, Pettus was traveling eastbound on Superior Avenue at a speed of approximately 35 to 40 miles per hour. At the time of the accident, the painted crosswalks at the intersection were worn out and not visible. Further, the crosswalk signs were inoperable. Superior Avenue had flashing yellow lights, and Emily Street had flashing red lights. The roadway was dark, and the nearby overhead street lights were inoperable.

{¶ 4} On February 12, 2016, plaintiff-appellee Latoya Ceasor ("Ceasor") filed a complaint against the city and Pettus in the Cuyahoga County Court of Common Pleas. Ceasor is the decedent Kimble's mother and the duly appointed administrator of his estate.

{¶ 5} The complaint alleged that Pettus's operation of the police cruiser that struck Kimble constituted negligent, reckless, willful, and/or wanton misconduct. These allegations were based on Pettus's driving at an excessive rate of speed through an intersection known to be heavily populated by pedestrians, traveling at an excessive rate of speed without implementing his sirens or emergency lights, operating the vehicle with only one working headlight at night, and failing to keep proper lookout.

{¶ 6} The complaint further alleged that the city was negligent in failing to properly maintain or design the intersection, failing to properly maintain its police motor vehicles and property, and failing to properly train its officers.

{¶ 7} The complaint also specifically alleged that the city was vicariously liable for Pettus's actions and that Pettus was liable pursuant to the exception to political subdivision immunity codified in R.C. 2744.03(A)(6)(b). Finally, Ceasor alleged that the city and/or Pettus were liable for spoliation for intentionally and/or negligently destroying or failing to record and preserve body camera evidence.

{¶ 8} On February 26, 2016, the city and Pettus (collectively, "defendants") filed a joint answer.

{¶ 9} On August 28, 2017, defendants filed a motion for summary judgment and a motion to dismiss pursuant to Civ.R. 56, arguing that none of the exceptions to sovereign immunity in R.C. 2744.02(B) apply to this case, and that Ceasor failed to present evidence sufficient to create a genuine issue of material fact.

{¶ 10} On September 26, 2017, Ceasor filed a memorandum in opposition to defendants' motion for summary judgment.

{¶ 11} On October 4, 2017, defendants filed a motion to strike the expert report attached to Ceasor's September 26 memorandum in opposition to summary judgment. The report in question was a crash reconstruction report prepared by Ohio State Highway Patrol Lieutenant John C. Thorne and was attached to defendants' motion for summary judgment. On October 6, 2017, defendants filed a reply brief in support of their motion for summary judgment.

{¶ 12} The city appeals from the trial court's denial of its motion for summary judgment, presenting the following four assignments of error for our review:

I. In the absence of any genuine issue of material fact the trial court's denial of defendants'/appellants' motion for summary judgment asserting entitlement to R.C. [Chapter] 2744 immunity constituted reversible error.

II. The trial court erred to the prejudice of defendants/appellants in failing to strike plaintiffs' expert report.

III. Absent an expert opinion on the issues of proximate causation and culpability Ms. Ceasor was incapable of defeating the city defendants' entitlement to immunity; and accordingly this court should find that summary judgment in favor of the city defendants was warranted.

IV. In the absence of any genuine issue of material fact, the trial court's denial of [defendants'/appellants'] motion for summary judgment on [plaintiff's] claim of spoliation constituted reversible error.

Law and Analysis

I. Jurisdiction

{¶ 13} We must, as an initial matter, address jurisdiction. In general, an order denying a motion for summary judgment is not a final, appealable order. 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, "when a trial court denies a motion in which a political subdivision or its employee seeks immunity under R.C. Chapter 2744, that order denies the benefit of an alleged immunity and thus is a final, appealable order pursuant to R.C. 2744.02(C)." Id. at ¶ 27.

{¶ 14} Our jurisdiction in this case is limited to the review of alleged errors in the portion of the trial court's decision that denied the city the benefit of immunity. Reinhold v. Univ. Hts. , 8th Dist. Cuyahoga No. 100270, 2014-Ohio-1837, 2014 WL 1775999, ¶ 21, citing Riscatti v. Prime Properties Ltd. Partnership , 137 Ohio St.3d 123, 2013-Ohio-4530, 998 N.E.2d 437, ¶ 20. This jurisdictional limitation includes a denial of summary judgment based on proximate causation, as whether immunity applied is a separate and distinct inquiry from whether conduct is a proximate cause of harm. Gates v. Leonbruno , 2016-Ohio-5627, 70 N.E.3d 1110, ¶ 30 (8th Dist.), citing Hardesty v. Alcantara , 2015-Ohio-4591, 48 N.E.3d 127 (8th Dist.). Therefore, we decline to consider the arguments raised in the third and fourth assignments of error, relating to the merits of Ceasor's negligence and spoliation claims, because they do not pertain to the issue of immunity and are thus not yet ripe for review. Id. at ¶ 47.

II. Immunity

{¶ 15} A trial court's summary judgment determination is reviewed de novo. Grafton v. Ohio Edison Co. , 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). This court independently reviews the record to determine whether summary judgment is appropriate. 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." Hull v. Sawchyn , 145 Ohio App.3d 193, 762 N.E.2d 416 (8th Dist.2001).

{¶ 16} On a motion for summary judgment, the moving party carries the initial burden of identifying specific facts in the record that demonstrate his or her entitlement to summary judgment. Dresher v. Burt , 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264 (1996). If the moving party fails to meet this burden, summary judgment is not appropriate. Id. at 283, 662 N.E.2d 264. If the moving party meets this burden, the nonmoving party has the reciprocal burden to point to evidence of specific facts in the record demonstrating the existence of a genuine issue of material fact for trial. Id. If the nonmoving party fails to meet this burden, summary judgment is appropriate. Id.

{¶ 17} In its first assignment of error, the city argues that summary judgment was inappropriate because it was entitled to immunity and Ceasor failed to expressly contest that in her opposition to its motion for summary judgment.

{¶ 18} To determine whether a political subdivision is immune from liability, courts employ a three-tiered analysis pursuant to R.C. Chapter 2744. Greene Cty. Agricultural Soc. v. Liming , 89 Ohio St.3d 551, 556, 733 N.E.2d 1141 (2000). The first tier of the analysis is the general rule that political subdivisions are immune from liability incurred in performing governmental or proprietary functions. Id. The first tier is not at issue here. "Thus, the relevant point of analysis (the second tier) then becomes whether any of the exceptions in R.C. 2744.02(B) apply." Id. If any of these exceptions apply, and no defense in R.C. 2744.02(B) applies to protect the political subdivision from liability, we turn to the third tier of analysis. Colbert v. Cleveland , 99 Ohio St.3d 215, 2003-Ohio-3319, 790 N.E.2d 781, ¶ 9. The third tier requires a court to determine "whether any of the defenses in R.C. 2744.03 apply, thereby providing the political subdivision a defense against liability." Id.

{¶ 19} In arguing that it was entitled to immunity, the city asserted that none of the exceptions to immunity apply in this case. This assertion was accompanied by a recitation of several of the relevant exceptions but was unsupported by law or facts from the case. According to the city, because none of the exceptions to immunity apply, it is unnecessary to engage in the third tier of...