SAMPSON v. CUYAHOGA Metro. Hous. Auth.

• Decision Date: 22 July 2010
• Docket Number: No. 93441.,93441.
• Citation: 2010 Ohio 3415,935 N.E.2d 98,188 Ohio App.3d 250
• Parties: SAMPSON, Appellee, v. CUYAHOGA METROPOLITAN HOUSING AUTHORITY et al., Appellants.
• Court: Ohio Court of Appeals

188 Ohio App.3d 250

935 N.E.2d 98

2010 Ohio 3415

SAMPSON, Appellee,

v.CUYAHOGA METROPOLITAN HOUSING AUTHORITY et al., Appellants.

No. 93441.

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

Decided July 22, 2010.

COPYRIGHT MATERIAL OMITTED.

Schuster & Simmons Co., L.P.A., and Nancy C. Schuster, Cleveland, for appellee.

Roetzel & Andress, L.P.A., Joseph W. Boatwright IV, Lewis W. Adkins Jr., Gina A. Kuhlman, Karen D. Adinolfi, and Aretta K. Bernard, Akron, for appellants.

MARY EILEEN KILBANE, Judge.

{¶ 1} Pursuant to Loc.App.R. 26 and in accordance with McFadden v. Cleveland State Univ., 120 Ohio St.3d 54, 2008-Ohio-4914, 896 N.E.2d 672, this court held an en banc conference to address an alleged conflict between Sampson v. Cuyahoga Metro. Hous. Auth., 8th Dist. No. 93441, 2010-Ohio-1214, 2010 WL 1115797, and several other cases from this appellate district.

{¶ 2} Appellee, Darrell Sampson, brought suit against Cuyahoga Metropolitan Housing Authority (“CMHA”) and three of its employees, George Phillips, Anthony Jackson, and Ronald Morenz (collectively, “appellants”), alleging that appellants negligently accused him of theft and arrested him. Appellants filed a motion for summary judgment with the trial court, alleging that they were immune from suit. The trial court denied the motion, and appellants filed the instant appeal.

Facts

{¶ 3} Sampson was raised in a CMHA housing development. In 1988, at age 22, CMHA hired him as a groundskeeper. In 2000, Sampson was promoted to the position of Serviceman V Plumber. CMHA plumbers work in the Property Maintenance Department, reporting for work each day at the plumbers' shop, which is located at 4315 Quincy Avenue, Cleveland, Ohio. At the plumbers' shop, they punch in for work, pick up their tools, and receive their work assignments for the day.

{¶ 4} The plumbers service the CMHA properties in Cleveland as well as the surrounding suburbs, and CMHA provides the plumbers with numerous vehicles to drive to these locations. Gasoline credit cards were assigned to CMHA vehicles so that employees could purchase gasoline for the vehicles using their individual employee PIN numbers provided by CMHA.

{¶ 5} On July 20, 2004, CMHA received an anonymous tip on the CMHA “tips hotline,” accusing plumber Alvin Roan of using a CMHA gasoline credit card to purchase gasoline for his personal vehicle. Lieutenant Ronald Morenz worked at the CMHA Police Detective Bureau and was assigned to investigate the allegations against Roan under the supervision of CMHA Police Chief Anthony Jackson, who worked under the direction of CMHA Executive Director George Phillips.

{¶ 6} Morenz investigated Roan and the other plumbers for approximately four weeks. On August 27, 2004, Phillips, along with Jackson, called a special meeting of CMHA employees. Phillips, Jackson, and Morenz all orchestrated a plan to arrest numerous plumbers, as well as painters (the subjects of a separate investigation), at the employee meeting. When Phillips had worked at the Chicago Housing Authority, he had witnessed a very similar mass arrest, where numerous Chicago Housing Authority employees were arrested by police at a warehouse. Phillips determined that arresting the employees in front of 200 of their fellow workers would save them the embarrassment of being arrested at home in front of their children. Phillips and Jackson issued a press release detailing the agenda for a press conference to be held on August 31, 2004, at 10:30 a.m., immediately following the employee meeting regarding employee theft and arrests.

{¶ 7} On August 30, 2004, the plumbers were told not to follow their daily routine of reporting to the plumbers' shop on Quincy Avenue the following morning, but rather to report for work directly to the CMHA warehouse located at 4700 Lakeside Avenue, Cleveland, Ohio, for an employee meeting.

{¶ 8} On August 31, 2004, approximately 200 CMHA employees gathered at the CMHA warehouse. Sergeant Ray Morgan of the CMHA Community Policing Unit announced the names of 13 CMHA employees, including Sampson. Morgan then announced that the 13 individuals (six plumbers and seven painters) were under arrest for theft. The men were handcuffed and searched in front of their fellow CMHA employees. The arrested employees were then taken behind a partition where they were photographed and then led outside into waiting patrol cars. Television news cameras were present outside and photographed the arrested employees, video of which later aired on local news broadcasts depicting the identity of those arrested. Appellants maintain that they did not contact the media prior to the arrests.

{¶ 9} The arrested employees spent the night in jail before being released the following day without charges. All arrested employees were placed on administrative leave from their positions with CMHA.

{¶ 10} On October 7, 2004, Sampson and several other plumbers were indicted on charges of theft, misuse of credit cards, and theft in office. The state contended that Sampson had misused the gasoline credit cards provided for the CMHA vehicles. On February 2, 2005, nearly five months after his arrest at the employee meeting, the state dismissed the charges.

{¶ 11} On November 22, 2005, an arbitration hearing was held to determine whether Sampson should be reinstated to his position with CMHA. Ultimately, the arbitrator concluded that CMHA had failed to present any evidence of gasoline theft and ordered that Sampson be reinstated. The arbitrator stated:

There were other failures in Lt. Morenz's investigation. Lt. Morenz testified that he did not check to see if each vehicle in the Property Maintenance Department had its own gas card until September 2004. At no time did he talk to Grievant or any of his co-workers. * * * In the face of the evidence, the arbitrator finds that the preponderance of the evidence shows no theft of gasoline at all, much less any evidence that the grievant was guilty of such theft.

{¶ 12} In March 2006, Sampson returned to work for CMHA. According to Sampson, the position he returned to involved duties that were different from those involved in his position prior to the arrest. Further, Sampson claims that he was no longer permitted to retrieve his own equipment or drive CMHA vehicles. Sampson was subsequently diagnosed with posttraumatic stress disorder.

Procedural Background

{¶ 13} On August 31, 2006, Sampson filed suit against appellants, alleging intentional infliction of emotional distress, negligent infliction of emotional distress, and abuse of process. Sampson later amended his complaint to include negligent misidentification.

{¶ 14} On November 3, 2006, appellants filed a motion for judgment on the pleadings with respect to the negligent infliction of emotional distress. On November 17, 2006, after receiving one extension of time, Sampson filed his brief in opposition. On December 5, 2006, appellants filed their reply brief. On October 2, 2007, the trial court granted the motion, dismissing the claim of negligent infliction of emotional distress but leaving all other claims pending.

{¶ 15} On December 12, 2008, appellants filed a motion for summary judgment, alleging sovereign immunity on all remaining claims. On January 9, 2009, Sampson filed his brief in opposition. On January 13, 2009, appellants filed their reply brief.

{¶ 16} On June 4, 2009, the trial court denied the motion for summary judgment, finding that a genuine issue of material fact still existed as to whether appellants' conduct was wanton or reckless.

{¶ 17} Appellants filed the instant appeal pursuant to R.C. 2744.02, which allows political subdivisions and employees of political subdivisions to immediately appeal an order that denies immunity, asserting two assignments of error.

ASSIGNMENT OF ERROR NUMBER ONE

The trial court erred as a matter of law, in the prejudice of the Cuyahoga Metropolitan Housing Authority in not dismissing all claims against it on summary judgment because political subdivisions are absolutely immune from intentional tort claims pursuant to Ohio Revised Code 2744 and no exception to immunity applies to plaintiff's negligent misidentification claim.

{¶ 18} CMHA argues that it is immune from suit pursuant to R.C. 2744.02. Sampson argues that pursuant to R.C. 2744.09, CMHA is barred from raising immunity in this case.

Summary-Judgment Standard

{¶ 19} In Ohio, appellate review of summary judgment is de novo. Comer v. Risko, 106 Ohio St.3d 185, 2005-Ohio-4559, 833 N.E.2d 712, ¶ 8. “Accordingly, we afford no deference to the trial court's decision and independently review the record to determine whether summary judgment is appropriate.” Mosby v. Sanders, 8th Dist. No. 92605, 2009-Ohio-6459, 2009 WL 4694789, at ¶ 11, citing Hollins v. Shaffer, 182 Ohio App.3d 282, 2009-Ohio-2136, 912 N.E.2d 637, ¶ 12.

{¶ 20} The Ohio Supreme Court stated the appropriate test in Zivich v. Mentor Soccer Club (1998), 82 Ohio St.3d 367, 696 N.E.2d 201, as follows: “Pursuant to Civ.R. 56, summary judgment is appropriate when (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 come to but one conclusion and that conclusion is adverse to the nonmoving party, said party being entitled to have the evidence construed most strongly in his favor.” Id. at 369-370, 696 N.E.2d 201. See also State ex rel. Duncan v. Mentor City Council, 105 Ohio St.3d 372, 2005-Ohio-2163, 826 N.E.2d 832, ¶ 9, citing Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O.3d 466, 364 N.E.2d 267.

Analysis

[1] [2] {¶ 21} Political subdivisions are immune from suit, with the exception of limited situations provided for by statute. Campolieti v. Cleveland, 184 Ohio App.3d 419, 2009-Ohio-5224, 921 N.E.2d 286, at ¶ 32, citing Hodge v. Cleveland Oct. 22, 1998), 8th Dist. No. 72283, 1998 WL 742171. Whether a political subdivision is immune...