Piazza v. Cuyahoga Cnty., 104724

• Decision Date: 12 October 2017
• Docket Number: No. 104724,104724
• Citation: 98 N.E.3d 1263,2017 Ohio 8163
• Parties: Marcella King PIAZZA, Plaintiff–Appellee v. CUYAHOGA COUNTY, et al., Defendants–Appellants
• Court: Ohio Court of Appeals

98 N.E.3d 1263

2017 Ohio 8163

Marcella King PIAZZA, Plaintiff–Appellee

v.CUYAHOGA COUNTY, et al., Defendants–Appellants

No. 104724

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

RELEASED AND JOURNALIZED: October 12, 2017

Robert J. Triozzi, Director of Law, Robin M. Wilson, Assistant Director of Law, Cuyahoga County Law Department, 2079 East 9th Street, Seventh Floor, Cleveland, Ohio 44115, ATTORNEYS FOR APPELLANT

Nancy C. Schuster, Shuster & Simmons Co., 2913 Clinton Avenue, Cleveland, Ohio 44113, Brian M. White, 4815 Fulton Drive, N.W., Suite 200, Canton, Ohio 44735, Michael K. Farrell, Mark Keller Norris, Baker & Hostetler, L.L.P., Key Tower, 127 Public Square, Suite 2000, Cleveland, Ohio 44114, ATTORNEYS FOR APPELLEE

BEFORE: Keough, A.J., Stewart, J., and Boyle, J.

JOURNAL ENTRY AND OPINION

KATHLEEN ANN KEOUGH, A.J.:

{¶ 1} Defendant-appellant, Cuyahoga County, appeals the trial court's decision denying its motion for summary judgment based on political subdivision immunity and the statute of limitations. For the reasons that follow, we affirm in part and dismiss in part.

{¶ 2} Marcella King Piazza ("Piazza") began working for the county auditor's office in July 2003. She was transferred to the county board of revision and served as the office manager. Subsequently, in August 2010, Piazza was transferred to the Department of Justice Affairs as a victim advocate. Around the time of Piazza's transfer, the Plain Dealer Publishing Company ("Plain Dealer") started publishing a series of articles about the Cuyahoga County Board of Revision, claiming that an investigation was underway into the employees and board members' work habits and mismanagement within the department. One article characterized the matter as a "scandal."

{¶ 3} On March 9, 2011, Piazza was terminated from employment with the county, along with Robert Chambers and Hanane Hmada, who previously worked in the board of revision.

{¶ 4} Within 90 minutes of her discharge, Piazza received a telephone call from a Plain Dealer reporter seeking comment on her discharge; Piazza declined to comment. Approximately 20 minutes later, at 11:50 a.m., the Plain Dealer published the initial article on www.cleveland.com, under the headline: "Cuyahoga County Executive Ed FitzGerald fires three employees tied to the boards of revision scandal." In the article, former County Executive Edward FitzGerald's spokesperson explained that the firing was "due to our reorganization of the board of revision." However, the cleveland.com post explained that the three terminated employees, including Piazza, were reassigned to other county departments in August after the Plain Dealer reported about the poor work habits of board employees. The article repeated details of corruption at the board of revision, including that delays by the board members had cost local school districts and public agencies millions of dollars in tax revenue, and that altered tax documents had reduced property values in the county by more than $400 million.

{¶ 5} A second article, titled, "Cuyahoga County Executive Ed FitzGerald says he couldn't justify keeping reassigned board of revision workers in new positions," was posted later that day at 6:22 p.m. The Plain Dealer stated that "FitzGerald said he can't justify budgeting money for the positions Chambers and two other board castoffs were moved to, so * * * he fired all three." The article then identified the three employees—one of whom was Piazza. FitzGerald was quoted as saying "instead of terminating them, the previous administration reassigned them. * * * We can't afford to reshuffle people for their own job security." Included in this article was a photograph of Piazza—a photograph that was provided by the county.

{¶ 6} Although she was not a board member, Piazza claimed that the articles created an inference that she was a board member and involved in the "county corruption scandal."

{¶ 7} In 2015, Piazza filed a complaint against Cuyahoga County ("the county") and the Plain Dealer alleging false light invasion of privacy. The allegations stemmed from the quoted statements by FitzGerald, which were printed by the Plain Dealer. Piazza claimed that FitzGerald made the statements with a "reckless disregard for the truth or falsity of his statement."

{¶ 8} The county moved for summary judgment, contending that it was immune from liability pursuant to R.C. 2744.02, and that Piazza's complaint was time-barred. In response, Piazza claimed that res judicata barred the county's claim of immunity. The trial court denied the county's motion, concluding that "genuine issues of material fact exists [sic] and [Piazza's] false light claim is not time-barred, nor does political subdivision immunity apply to [Piazza's] claim arising from her employment relationship with [the county]."

{¶ 9} The county appeals on the authority of R.C. 2744.02(C), raising five assignments of error that will be addressed together where appropriate.

I. Political Subdivision Immunity

{¶ 10} In its first, second, third, and fourth assignments of error, the county contends that the trial court erred in denying its motion for political subdivision immunity on Piazza's sole claim for false light invasion of privacy. Specifically, the county raises the following assignments of error:

Error No. 1: The trial court erred in finding that political subdivision immunity did not apply to plaintiff's sole claim for false light invasion of privacy.

Error No. 2: The trial court erred in denying Appellant's Motion for Summary Judgment where none of the exceptions to political subdivision immunity applied.

Error No. 3: The trial court erred in finding that plaintiff's claim arose from her employment relationship where plaintiff was not an employee and no causal connection or causal relationship between plaintiff's false light claim and the employment relationship was established.

Error No. 4: The trial court erred in denying Cuyahoga County's Motion for Summary Judgment where Plaintiff's sole opposition was an erroneous contention that res judicata barred Appellant's statutory immunity and statute of limitations arguments and failed to oppose summary judgment with proper evidence.

{¶ 11} An appellate court review a trial court's decision on a motion for summary judgment de novo. Grafton v. Ohio Edison Co. , 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Summary judgment is appropriate when, construing the evidence most strongly in favor of the nonmoving party, (1) there is no genuine issue of material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) reasonable minds can only reach a conclusion that is adverse to the nonmoving party. Zivich v. Mentor Soccer Club, Inc. , 82 Ohio St.3d 367, 369–370, 696 N.E.2d 201 (1998).

{¶ 12} The party moving for summary judgment bears the burden of demonstrating that no material issues of fact exist for trial. Dresher v. Burt , 75 Ohio St.3d 280, 292–293, 662 N.E.2d 264 (1996). The moving party bears the initial responsibility of informing the trial court of the basis for the motion, and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact on the essential elements of the nonmoving party's claims. Id. After the moving party has satisfied this initial burden, the nonmoving party has a reciprocal duty to set forth specific facts by the means listed in Civ.R. 56(C) showing that there is a genuine issue of material fact. Id.

{¶ 13} Determining whether a governmental entity is immune from tort liability involves a three-step analysis. Elston v. Howland Local Schools , 113 Ohio St.3d 314, 2007-Ohio-2070, 865 N.E.2d 845, ¶ 10. First, R.C. 2744.02(A)(1) sets forth the general blanket immunity applicable to political subdivisions. It provides that a political subdivision is generally not liable in a civil action for injury, death, or loss to persons or property incurred while performing governmental or proprietary functions. To overcome this statutory immunity, a plaintiff must show that one of the five exceptions contained in R.C. 2744.02(B) applies. If a plaintiff demonstrates that one of the five enumerated exceptions to governmental immunity applies, a political subdivision may then assert one of the defenses set forth in R.C. 2744.03(A) to revive its immunity.

{¶ 14} Piazza does not dispute that the county is a political subdivision and that none of the exceptions under R.C. 2744.02(B) apply in this matter. However, she contends on appeal that the county is not entitled to immunity pursuant to R.C. 2744.09, which provides,

This chapter does not apply to, and shall not be construed to apply to, the following:

* * *

(B) Civil actions by an employee * * * against his political subdivision relative to any matter that arises out of the employment relationship between the employee and the political subdivision[.]

{¶ 15} Accordingly, if the provisions in R.C. 2744.09(B) apply, then the immunity provisions do not apply to this matter. Piazza maintains that her termination and the statements made in reference to it was an employment matter, so immunity does not apply. The county, however, claims that the false light invasion of privacy claim did not "arise out of the employment relationship" because Piazza had been terminated prior to the county executive's statements and prior to her filing the complaint against the county.

{¶ 16} False light invasion of privacy is an intentional tort. Typically, "an employer's intentional tort against an employee does not arise out of the employment relationship, but occurs outside the scope of employment."

Brady v. Safety–Kleen Corp. , 61 Ohio St.3d 624, 576 N.E.2d 722 (1991), paragraph one of the syllabus. However, when the conduct forming the basis of the intentional tort arose out of the employment relationship, the employer may not have the benefit of immunity pursuant to the plain language of R.C. 2744.09(B). Sampson v. Cuyahoga Metro. Hous. Auth. , 131 Ohio St.3d 418...