Garmback v. City of Cleveland
| Decision Date | 05 May 2022 |
| Docket Number | 110295 |
| Citation | 2022 Ohio 1490 |
| Parties | LINDA GARMBACK, Plaintiff-Appellee, v. CITY OF CLEVELAND, ET AL., Defendants-Appellants. |
| Court | Ohio Court of Appeals |
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-18-902195
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.
JOURNAL ENTRY AND OPINION
{¶ 1} Defendant-appellant city of Cleveland (the "City") appeals 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 ("Ripepi"). 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 and 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 her 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 adjacent lot, section 31, lot 346, gravesite 2. Strauss determined that Gilmore's headstone had been placed in lot 347 by mistake. Strauss immediately moved Gilmore's headstone to the correct grave.
{¶ 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 remains 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 up 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 ("Milano") 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, the City filed a motion for summary judgment arguing that they were entitled to political subdivision immunity under R.C. 2744.02.
{¶ 9} Garmback opposed the motion, arguing that the City was not entitled to immunity and that she had sufficiently set forth facts to support her causes of action.
{¶10} On January 14, 2021, the trial court summarily denied the City's motion. The City appeals and assigns the following sole error for our review:
{¶ 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, R.C. 2744.02(C) provides:
An order that denies 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 Riscatti v. Prime Properties Ltd. Partnership, 137 Ohio St.3d 123, 2013-Ohio-4530, 998 N.E.2d 437, ¶ 20.
{¶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 R.C. 2744.09(A), political subdivision immunity does not apply to "[c]ivil actions that seek to recover damages from a political subdivision or any of its employees for contractual liability." '"R.C. 2744.09(A) has been consistently interpreted to mean that political subdivisions cannot claim governmental immunity for breach of contract claims."' Smith v. Euclid, 8th Dist. Cuyahoga No. 107771, 2019-Ohio-3099, ¶ 14, quoting Today & Tomorrow Heating & Cooling v. Greenfield, 4th Dist. Highland No. 13CA14, 2014-Ohio-239, ¶ 14.
{¶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.
{¶ 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 review the record to determine whether [the denial of] summary judgment is appropriate." Id. at ¶ 53, citing Hollins v. Shaffer, 182 Ohio App.3d 282, 2009-Ohio-2136, 912 N.E.2d 637, ¶ 12 (8th Dist).
{¶ 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 Civ.R. 56(C). Once the moving party has met their burden, the nonmoving party must respond with affidavits and/or set forth specific facts as provided in Civ.R. 56 showing there are genuine issues for trial. Id., citing Civ.R. 56(E).
{¶19} "'There is a three-tiered analysis to determine whether a political subdivision is immune from liability under R.C. 2744.02.'" Rankin v. Cuyahoga Cty Dept. of Children & Family Servs., 118 Ohio St.3d 392, 2008-Ohio-2567, 889 N.E.2d 521, ¶ 8, quoting Cater v. Cleveland, 83 Ohio St.3d 24, 28, 697 N.E.2d 610 (1998).
{¶ 20} R.C. 2744.02(A)(1) divides the functions of a political subdivision into two types, governmental functions and proprietary functions. Under the first tier, if a defendant is determined to be a political subdivision, it is immune from liability for its governmental and proprietary functions "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 * * *." R.C. 2744.02(A)(1).
{¶ 21} Under the second tier, the immunity conferred under R.C. 2744.02(A)(1) '"is not absolute, but is * * * subject to the five exceptions to immunity listed in * * * RC. 2744.02(B)."' Hortman v. Miamisburg, 110 Ohio St.3d 194, 2006-Ohio-4251, 852 N.E.2d 716, ¶ 12, quoting Cater at 28.
{¶ 22} The third tier of political subdivision immunity analysis comes into operation if it is determined that one of the exceptions to immunity under R.C. 2744.02(B)(1) through (5) applies. Under the third-tier, immunity can be reinstated if the political subdivision can demonstrate that one of the defenses under R.C. 2744.03 applies. Id.
{¶ 23}...
To continue reading
Request your trial