ORIGINALIN THE SUPREME COURT OF OHIO

SAMUEL RIOTTE, Administrator ofthe Estate of Emil Azzam

Plaintiff-Appelleevs.

CITY OF CLEVELAND, et. al.

Defendants-Appellants)))

11-2112On Appeal from the CuyahogaCounty Court of Appeals,Eighth Appellate District

Court of AppealsCase No. CA-10-096129

MEMORANDUM IN SUPPORT OF JURISDICTIONOF APPELLANTS CITY OF CLEVELAND AND OFFICER DANIEL BRILL

Barbara Langhenry (0038838)Interim Director of Law

Jennifer Meyer (0077853)Assistant Director of LawThomas J. Kaiser (0014339)Chief Trial CounselCity of Cleveland601 Lakeside Avenue, Room 106Cleveland, Ohio 44114-1077(216) 664-2800(216) 664-2663 (Fax)jmeyer@city.cleveland.oh.ustkaiser@city.cleveland.oh.us

Attorneys for Defendants-AppellantsThe City of Cleveland and OfficerDaniel Brill

David B. Malik (0023763)Dennis Niermann (0007988)8437 Mayfield Rd., Suite 103Chesterland, OH 44026(440) 729-8260(440) 729-8262 (Fax)dbm50@sbcglobal.netdennis@niermannlaw.com

Attorneys for Plaintiffs-AppelleesSamuel Riotte, Administrator of theEstate of Emil Azzam

FI

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CLERK OF COURTSUPREME COURT OF OHI®

v

DEC i 6 2011

CLERK OF COURTSUPREME COURT OF OHIO

George J. Emershaw120 East Mill Street437 Quaker SquareAkron, OH 44308gj em ershaw@neo.rrrr. com

Attorney for Defendant Stowers

Terrance P. Gravens55 Public Square, Suite 850Cleveland, OH 44113tgravens@rawlingravens.com

Attorney for Defendant Parma Towing &James Bierley

Warren S. George & Shaun Young55 Public Square, Suite 800Cleveland, OH 44113

Attorney for Plaintiff on cross-complaint

Samuel V. Butcher1201 Pearl Rd.Suite A-1Strongsville, OH 44149samb@stewartdechant.com

Attorn.ey for Defendant Parma Towing

Michael MatsonWest 130"' St. Auto Wrecking, Inc.4401 West 130`h St.Cleveland, OH 44135

Defendants

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TABLE OF CONTENTS

EXPLANATION OF WHY THIS CASE IS OF GREAT PUBLIC CONCERN ANDGENERAL INTEREST .............................................................................1

STATEMENT OF THE CASE AND FACTS ...................................................2

ARGUMENTS IN SUPPORT OF PROPOSITIONS OF LAW ...............................4

1. Proposition of Law I: - Ohio Revised Code § 2744.02(B)(3) Does NotRequire Municipalities to remove Obstructions "off a roadway" or "in themedian" and Therefore, a Municipality should not now be required to do so inorder to keep its Right to Immunity . .................................................4

II. Proposition of Law 2: Ohio Revised Code § 2744.02(B)(3) Clearly states thata Municipality is immune from Liability for Negligent Failure to remove anObstruction from the Roadway. Because the City of Cleveland did in FactRemove Decedent Azzam's Vehicle, which was located Off the Roadway, theEighth District Decision in this Matter now attaches a Time Requirement to§ 2744.02(B)(3) ................................................ .........................5

III. Proposition of Law 3 - Ohio should adopt the pleading standard fiutherdiscussed in Twombley and Iqbal where a govemment employee cannot bedenied immunity under Ohio Revised Code § 2744.03(A)(6) merely becausePlaintiff-Appellee inserts catch-all magic words of "negligent, willful,wanton, and/or reckless" and Plaintiff-Appellant must assert at least someminimal facts to support his allegations .............................................6

CONCLUSION ... ... . . . . . . .. . . .. . . ... . .. . ... . . . ... . . . . . . . . . . . . ... . . . ... . . . . . . . . . .. . . . . . . . .. ... . . . ...10

CERTIFICATE OF SERVICE .............................. .. ....................................11

APPENDIX AOpinion of the Cuyahoga County Court of Appeals(September 8, 2011)

APPENDIX BDenial of Motion for Reconsideration(October 14, 2011)

APPENDIX CDenial of En Bane Review(November 1, 2011)

vii

EXPLANATION OF WHY THIS CASE IS OF GREAT PUBLIC CONCERN ANDGENERAL INTEREST

Ohio Revised Code § 2744 grants immunity from liability to municipalities and

their employees throughout the State of Ohio. The Eighth District Court of Appeals has

unequivocally added new requirements to 2744.02(B)(3) that are unsupported by statute

and previous case law. After this decision, the Eighth District determined that a

municipality could still be liable for not keeping a roadway clear even if the municipality

did in fact tow the vehicle, thereby, creating a time requirement to § 2744.02(B)(3).

Additionally, the appeals court said the City should tow vehicles on a median or off the

roadway in order to utilize immunity under § 2744.02(B)(3). These new requirements

placed on municipalities by the Eighth District Court of Appeals alter municipalities'

requirements and liability, which is a great public concern and general interest.

Further, federal opinions, Twombley and Iqbal, address when initial pleadings are

insufficient. A plaintiff cannot merely state a cause of action without some factual

support and survive a motion to dismiss. O.R.C. § 2744 immunity is similar to qualified

irr.mun- ity in that it is necessary to dewrm_ine imm.znfty at the easl.iest stage to prevent

municipalities and government workers from prolonged and protracted unnecessary

litigation burden. Plaintiffs cannot be permitted to block an employee's right to

immunity by sprinkling in magic buzz words and then present no facts to support those

words in the Complaint. Preventing unduly burdensome and costly litigation on an

unsupported complaint at the offset of litigation is of great general interest and public

concern. Tax dollars and municipalities' resources can be better utilized without having

to deal for a long period of time on unsupported complaints. Defendants-Appellants

implore this Honorable Court to consider Federal opinions Twombley and Iqbal in

conjunction with the pleading requirements in Ohio Civ. Pro R 8.

STATEMENT OF THE CASE AND FACTS

Only for purposes of the original Motion to Dismiss, Defendants-Appellants

assume the facts in the complaint as true. In early evening on December 12, 2008, while

driving southbound on SR 176, which was icy and slippery, Decedent Emil Azzam's

vehicle became disabled and ended up in the median. Comp. at ¶¶ 3-5. While sitting in

his vehicle, smoking a cigarette, Decedent Azzam's vehicle was struck by Defendant

Andre Stower's vehicle, causing serious damage to both Azzam and his vehicle. Id. at ¶

7. Cleveland Police Officers Daniel Brill #37 and Samuel Ortiz #102 arrived at the

scene. Id. at ¶ 9.

Appellant Officer Brill walked over to Mr. Azzam's vehicle, looked inside, and

saw the driver's side airbag had been deployed. Id. at ¶11. Officer Brill did not enter

Azzam's locked vehicle and called for a tow truck. Id. Parma Towing arrived and towed

Agzar::'s veh- i.^-,le to Impound Lot #7. Id. at ¶¶ 14, 16-20. Azzam's body w-as fou- nd inside

the vehicle on December 14, 2008 at the impound lot. Id. at 130.1

Plaintiff-Appellee Samuel Riotte, as the Administrator of the Estate of Emil

Azzanm, filed a complaint for wrongful death on February 17, 2009 in Samuel Riotte,

Administrator of the Estate of Emil Azzam v. City of Cleveland et al, CV-09-684936.

Defendants-Appellants City of Cleveland and Officer Daniel Brill moved the court to

dismiss the complaint with prejudice on May 19, 2009. After limited discovery

commenced, including the depositions of Defendant-Appellant Officer Daniel Brill and

1 Thecomplaintstates the incorrect date of December 15, 2008.

-2-

other Cleveland Police Officers, Plaintiff-Appellee dismissed his complaint without

prejudice on February 3, 2010.

Plaintiff-Appellee re-filed his claim on June 25, 2010 and filed an amended

Complaint on July 7, 2010. Appellee alleges in this wrongful death suit that Officer

Daniel Brill was "negligent willful, wanton and reckless" in towing Mr. Azzam's locked

vehicle. Id. at ¶ 12, 36-38. Appellee also seeks damages against the City of Cleveland for

"negligent, willful, wanton and reckless" behavior for the torts of its employees under the

doctrine of respondeat superior. Id. at ¶ 47-48.

Defendants-Appellants City of Cleveland and Officer Brill moved to dismiss the

first amended complaint on October 8, 2010. On November 30, 2010 the Court issued its

Journal Entry denying the Defendants-Appellants City of Cleveland and Officer Daniel

Brill's motion to dismiss with an entry that stated, "After careful consideration, the court

finds that Defendants are not entitled to innnunity against plaintiffs claims under Ohio

Revised Code Chapter 2744."

Appellants City and Officer Brill then appealed the trial court's dismissal to the

Eighth District Court of Appeals. The Eighth District remanded in part and reversed in

part stating that it is plausible that Riotte may be able to invoke an exception to the

general grant of governmental immunity. Specifically, that Plaintiff-Appellee may be

able to show that the City negligently failed to keep roads free from nuisance. Also, the

appeals court determined, without referencing any of the facts, that Plaintiff-Appellee's

complaint has enough facts to support malicious, wanton, and reckless allegations against

Officer Daniel Brill. The appeals court did reverse the trial court and granted the City

immunity for the failure to train claim. (8th Dist. Opinion, Sept. 8, 2011) Defendants-

Appellants field a motion to reconsideration and motion for en banc review which were

denied on October 14, 2011 and November 1, 2011 respectively.

The City of Cleveland and Officer Daniel Brill now appeal that decision to this

Honorable Court.

ARGUMENTS IN SUPPORT OF PROPOSITIONS OF LAW

Proposition of Law I: - Ohio Revised Code § 2744.02(B)(3) Does Not RequireMunicipalities to remove Obstructions "off a roadway" or "in the median" andTherefore, a Municipality should not now be required to do so in order to keep itsRight to Immunity.

The Eighth District Court of Appeals determined that the City of Cleveland is not

entitled to immunity because "it is plausible that Riotte may be able to invoke an

exception to the general grant of governmental immunity." (Opinion ¶ 18.) Specifically,

this Court determined that there was a factual discrepancy whether 2744.02(B)(3) applies

before Officer Brill towed Decedent Azzam's vehicle. However, from the facts in the

Complaint, Decedent Azzam's vehicle was not located on the roadway and therefore,

2744.02(B)(3) is not triggered.

The Eighth District summarized Plaintiff-Appellee's complaint as Azzam's

vehicle "ended up ...on the roadway median..." (Opinion ¶ 2 citing Compl. ¶4) and "that

the vehicle was `off the road and facing the wrong direction."' (Opinion ¶ 3 citing

Compl. ¶ 5). The City does not have a duty to remove obstructions that are not on the

public right away. The case cited by Plaintiff-Appellee in his brief, Bonance v.

Springfi'eld Twp., holds that the City has no duty to remove obstructions from berms,

shoulders, and other areas off of the roadway. 179 Ohio App.3d 736, 744 (Ohio App. 7

Dist. 2008). In Baldwin's Ohio Practice that discusses duty to maintain streets, defines

public roads as "to include the public roads, highways, streets, avenues, alleys and

bridges with the municipality, but specifically excludes berms, shoulders, rights-of-way."

Oh. Mun. L. § 32:25(A) (2011). Because it is clear from Appellee's complaint that

Decedent Azzam's vehicle was located "off the road," none of the exceptions under

2744.02(B) applies to prevent Defendant-Appellant City from immunity.

Because the Eighth District stated that Plaintiff-Appellee could invoke the §

2744.02(B)(3) exception to immunity, it now puts the burden on municipalities to remove

obstructions off roadway in order to keep their right to immunity.

Proposition of Law 2: Ohio Revised Code § 2744.02(B)(3) Clearly states that aMunicipality is immune from Liability for Negligent Failure to remove anObstruction from the Roadway. Because the City of Cleveland did in Fact RemoveDecedent Azzam's Vehicle, which was located Off the Roadway, the Eighth DistrictDecision in this Matter now attaches a Time Requirement to § 2744.02(B)(3).

Initially, Plaintiff-Appellee requested the lower courts to ignore the word

"failure" to deny Defendant-Appellant City its right to immunity under § 2744.03(B)(3).

However, the Eighth District Court of Appeals stated that "Riotte contends that Brill and

the city were negligent in failing to remove Azzam's disabled vehicle prior to the crash."

(Opinion ¶ 17.) Even though conclusory and therefore, not needed to be taken as true for

purposes of a motion to dismiss, the appeals court accepted the conclusory statement as

true and denied Defendant-Appellee its right to immunity. (Id. at ¶ 18).

Plaintiff-Appellee's Complaint states that the Defendants-Appellants DID remove

the vehicles from the off the roadway, in a timely fashion and despite severe weather. See

Plaintiff-Appellee's Merit Brief pg. 9-10 and Amend. Compl. at ¶ 9, "Approximately

twenty minutes after Debra Lugo's 911 call, Cleveland Police Officer Daniel Brill #37,

arrived at the scene..."; Id. at ¶ 11 "...call[ed] for a tow truck and driver." In his Merit

Brief before the Eighth District Court of Appeals, Plaintiff-Appellee alludes to the

assertion that the City should have somehow in the terrible, snowy, treacherous weather

conditions, removed Mr. Azzam's vehicle less than twenty minutes before another

accident happened. (Plaintiff-Appellee Brief pg. 8-9). This is an improper and

unsupported interpretation of 2744.02(B)(3). O.R.C. § 2744 does not say, failure to tow

within a reasonable time. Further, Plaintiff-Appellee provide not even a scintilla of case

law to support a new reasonable time frame to revoke immunity from a municipality

when in fact, the City, through Officer Brill, did tow all vehicles involved in a car

accident. (Amend. Compl. ¶ 11.) Defendants-Appellants respectfully request that this

Honorable Court review whether a time requirement is part of the legislative intent

behind O.R.C. § 2744.03(B)(3).

Proposition of Law 3 - Ohio should adopt the pleading standard further discussed

in Twombley and Iqbal where a government employee cannot be denied immunityunder-Ohio Revised Code § 2-744.93(A)(6) }nerelybmause P-Iaintiff-Appelice ins.erts

catch-all magic words of "negligent, willful, wanton, and/or reckless" and Plaintiff-

Appellant must assert at least some minimal facts to support his allegations.

Litigation is expensive, time-consuming, and exhausting to public employees.

Immunity under § 2744 should not be denied because a plaintiff utilizes magic words in

his complaint, but fails to support those allegations with minimal facts. Here, Plaintiff-

Appellee claims Defendant-Appelleant Officer Brill used "negligent or wanton, willful,

and reckless behavior." Defendant-Appellant Officer Brill was either, negligent or

wanton, willful, and reckless, but not both. He cannot be denied his right to immunity

simply because Plaintiff-Appellee chose to list allegations without any supporting facts.

Federal courts have required that plaintiffs provide something more than mere

words to withhold immunity from defendants. The factual allegations must be sufficient

to raise a right to relief above the speculative level and must do something more than

merely create a suspicion of a legally cognizable right. Bell Atlantic Corp. v. Twombly

(2007), 550 U.S. 554, 555, 127 S.Ct. 1955, 1965.

In Twombly-adopted by the Eighth District Court of Appeals-the Supreme

Court made clear that in order to give the required teeth to Rule 12(B)(6) and uphold its

purpose of weeding out frivolous cases, a plaintiff is required to do more than state facts

that suggest a possibility of merit, lest a plaintiff with a largely groundless claim be

allowed to take up the time of a number of people...." Id. at 558 (Internal citations

omitted). See Parsons v. Greater Cleveland Regional Transit Auth., 8Ih Dist. No. 93523,

2010-Ohio-266, at ¶11. A plaintiff must plead facts that demonstrate his claim is

plausible. "[W]hen the allegations in a complaint, however true, could not raise a claim

of entitlement to relief, `this basic deficiency should ...be exposed at the point of

minimum expenditure of time and money by the parties in the court."' Twombly, at 558.

(Internal citations omitted).

More recently, the Supreme Court explained that "[t]wo working principles

underlie our decision in Twombly," the first being that the court need not accept as true

legal conclusions as it does factual allegations, and the second being that a complaint

may only survive a motion to dismiss if it states a plausible claim for relief. Ashcroft v.

Iqbal (2009), 129 S.Ct. 1937, 1949-50.

Plaintiff-Appellee alleges that "Officer Brill was negligent, willful, wanton and

reckless." Compl. at ¶ 36. Appellant Brill cannot be both negligent and willful, wanton

and reckless. This statement is precisely the type of "legal conclusions couched as

factual allegations" that Twombly, Iqbal, and Parsons prohibit. Amrhein v. Telb, 6th Dist.

No. L-06-1170, 2006-Ohio-5107, at ¶16 (Court of Appeals affirmed the trial court's grant

of judgment on the pleadings after finding that plaintiff had "simply presented [ed] the

outcome itself as evidence of malfeasance.") It appears that Plaintiff-Appellee's tactic is

simply the recital of buzzwords "wanton," "willful" and "reckless." This thinly-veiled

maneuver does not pierce the shield of immunity. "Unsupported conclusions of a

complaint are not considered admitted...and are not sufficient to withstand a motion to

dismiss..." (Citations omitted.) State ex rel. Hickman v. Capots (1989), 45 Ohio St. 3d

324.

If willful or wanton misconduct is relied on for recovery in an action for damages;

it has long been the law in Ohio that "facts must be pled which reveal on their face the

element of willfulness or wantonness. Hillard v. Western & Southern Life Ins. Co.

(1941) 68 Ohio App.. 426, 432 (where plaintiff relies on defendant's willful or wanton

misconduct for recovery, facts must be plead revealing element of willfulness or

wantonness on their face); and see, Universal Concrete Pipe Company v. Bassett (1936),

130 Ohio St. 567, 571; Kilgore v. U-Drive-It Co. (1947), 50 Ohio Law Abs. 245 (where

ordinary negligence alone was alleged by vehicle occupant seeking to recover under the

automobile guest statute, and there was a complete lack of any allegation of facts

constituting either willful or wanton misconduct, such occupant could not recover).

There are no facts in the Complaint to support this buzz word laden assertion.

This Honorable Court has previously held,

[r]ecklessness is a perverse disregard of a known risk.Recklessness, therefore, necessarily requires something

more than mere negligence. The actor must be consciousthat his conduct will in all probability result in injury. Scott

v. Longworth, 180 Ohio App.3d 73, 76 (1s` Dist. Ct.

App.2008) (citing O'Toole v. Denihan, 118 Ohio St.3d 374,paragraph three of the syllabus (2008) (emphasis added).

According to the Complaint, Officer Brill's conduct that is the subject of this

lawsuit is that he called to tow a locked, disabled vehicle from the highway; when he

looked in, he "saw that the driver's side airbag had been deployed and walked back to his

police cruiser... [he] never opened any of the doors to Mr. Azzam's vehicle." Compl. at ¶

12. Taking the allegations in Plaintiff-Appellee's complaint as true, just for the purposes

of the motion to dismiss, it is clear that Plaintiff-Appellee is asserting a negligence theory

against Appellant Officer Brill to which Officer Brill is immune.

Additionally, Plaintiff is incorrect in arguing that towing Mr. Azzam's vehicle is

both negligent and malicious, willful, and wanton. (Plaintiff-Appellee Brief pg. 10).

"This removal was not only negligent, as Defendant Brill failed to check Mr. Azzam's

car for its seriously injured driver, but also was done willfully, wantonly and/or

recklessly." Id. Unfortunately, Plaintiff cannot have it both ways in order to deny both

Defendants of their right to immunity under § 2744. Either it was negligent or willful,

wanton, and reckless.

If the pleading standards discussed in Twombley and Iqbal are applied to

complaints filed in Ohio, defendants would receive greater protection from frivolous,

improper expensive, exhausting litigation. Plaintiff-Appellee did not provide any support

in his complaint that Officer Brill was reckless, wanton and willful other than a recitation

of the buzz words reckless, malicious, wanton, and willful. That should not be enough to

prevent a public employee from exercising his right to immunity under § 2744.

CONCLUSION

For these reasons, this case involves matters of public and great general interest

that impact numerous political subdivisions and individuals in the State of Ohio. The

clear language of Ohio Revised Code § 2744 has been stretched to compound new duties

on municipalities, which is not proscribed in the statute itself. Further, employees are

denied their right to immunity under O.R.C. § 2744 merely because a Plaintiff uses

"and/or" without any facts to support his allegations. The City of Cleveland and Officer

Daniel Brill respectfully request this Honorable Court to grant jurisdiction and allow this

case so that the important issues involved can be reviewed on the merits.

Respectfully submitted;

Barbara Langhenry (0038838)Interim Director of Law

By: 1

er MeyeY-(0077853)AsAstant Director of LawThomas F. Kaiser (0014339)Chief Trial CounselCity of Cleveland601 Lakeside Avenue, Room 106Cleveland, Ohio 44114-1077(216) 664-2800(216) 664-2663 Faxjmeyer@city.cleveland.oh.ustkaiser@city.cleveland.oh.us

Attorneys for Defendants-Appellants City ofCleveland and Officer Daniel Brill

CERTIFICATE OF SERVICE

I hereby certify that a true and accurate copy of the Memorandum in Support of

Jurisdiction of Appellants City of Cleveland and Officer Daniel Brill was served by

regular U.S. mail this 150' day of December 2011 to:

David B. Malik (0023763)Dennis Niermann (0007988)8437 Mayfield Rd., Suite 103Chesterland, OH 44026(440) 729-8260(440) 729-8262 (Fax)dbm50@sbcglobal.netdennis@niermannlaw.com

Attorneysfor PlaintiffsAppelleesSamuel Riotte, Administrator of theEstate of Emil Azzam

George J. Emershaw120 East Mill Street437 Quaker SquareAkron, OH 44308Attor-neyfor Defendant Stowers

Terrance P. Gravens55 Public Square, Suite 850Cleveland, OH 44113Attorney for Defendant Parma Towing &James Bierley

Warren S. George & Shaun Young55 Public Square, Suite 800Cleveland, OH 44113Attorney for Plainti, ff on Cross-Complaint

Michael MatsonWest 130`h St. Auto Wrecking, Inc.4401 West 130a' St.Cleveland, OH 44135Defendant

Samuel V. ButcherThe Standard Building, Suite 14401370 Ontario St.Cleveland, OH 44113A-ttor-ney for Dej^enda t Pa, ;ma Taw-i-ng

fer Meyler (0P7853)

and Officer Daniel Brillttorney for Appellants City of Cleveland

APPENDIX A

8 2t11

CCDLirt of AppPar5 of ®biD

EIGHTH APPELLATE DISTRICTCOUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINIONNo. 96129

SAMUEL RIOTTE, ADMINISTRATORFOR THE ESTATE OF EMIL AZZAM

PLAINTIFF-APPELLEE

vs.

CITY OF CLEVELAND, ET AL.

DEFENDANTS-APPELLANTS

_ FJUDGMENT:AFFIRMED IN PART, REVERSED IN PART

AND REMANDED -=°

Civil Appeal from theCuyahoga County Court of Common Pleas

Case No. CV-730270

BEFORE: Jones, P.J., Rocco, J., and Keough, J.

RELEASED AND JOURNALIZED: September 8, 2011

®

%0737 !R6047^.

ATTORNEYS FOR APPELLANT

Robert J. TriozziDirector of Law

BY: Jennifer MeyerAssistant Director of LawandThomas J. KaiserChief Trial CounselCity of Cleveland601 Lakeside AvenueCleveland, Ohio 44114

ATTORNEYS FOR APPELLEES

For Samuel Riotte, Administrator

David B. MalikDennis J. Niermann8437 Mayfield RoadSuite 103Chesterland, Ohio 44026

Warren S. GeorgeKeis George LLP55 Public SquareSuite 800Cleveland, Ohio 44113

For Michael Matson

Patrick Dichiro4141 Rockside RoadSuite 230Seven Hills, Ohio 44131

0 AAdD 4OU94RVAUItDPE78 'A.pA,R. ?2'2(t)

SEP 0 8 2091,

LD UER5T0 OF APPE4L$

7 .37 60!a34

Attorneys continued

For Parma Towing

Samuel V. ButcherStewart & Dechant Co., L.P.A.The Standard Building1370 Ontario StreetSuite 1440Cleveland, Ohio 44113

Terrance P. GravensRawlin Gravens Co., L.P.A.

55 Public Square

Suite 850Cleveland, Ohio 44113

Ronald M. Mottl2525 Brookpark RoadParma, Ohio 44134

For Andre Stowers

George J. Emershaw120 East Mill StreetSuite 437Akron, Ohio 44308

R10737 ^,Ga475

-1-

LARRY A. JONES, J.:

Defendants-appellants, the city of Cleveland and Officer Daniel Brill,

appeal the trial court's judgment denying their Civ.R. 12(B)(6) motion to dismiss.

We affirm in part and reverse and remand in part.

I.

Samuel Riotte, Administrator of the Estate of Emil Azzam, filed this action

against several defendants, including the city of Cleveland and Cleveland Police

Officer Daniel Brill. The first amended complaint alleges the following. On

December 12, 2008, Azzam was traveling Southbound on State Route ("SR") 176

in the city of Cleveland. The weather conditions were winter-like, with snow and

ice. Azzam's vehicle "ended up on SR 176 on the roadway median headed in a

Southeast direction."

An off-duty officer called 911 and indicated that a vehicle was "off the road

and facing in the wrong direction." Another vehicle struck Azzam's vehicle and

911 was again called by at least two people. Officer Brill responded to the scene

approximately 20 minutes after one of the 911 calls reporting that Azzam's

vehicle had been struck. The officer approached Azzam's vehicle, looked inside,

saw that the driver's side airbag had deployed, went back to his cruiser, and

called for a tow truck.

Approximately 30 minutes later, a tow truck arrived. Azzam's vehicle was

a,0737 P60475

towed to an impound lot with Azzam in the vehicle. Azzam's body was discovered

in his vehicle on December 15, 2008.'

The complaint alleges that Azzam was alive when Officer Brill approached

the car and that his "negligent, willfull, wanton and reckless conduct" were the

proximate cause of Azzam's death. Specifically, the complaint alleges that the

officer failed to remove an obstruction (Azzam's vehicle) from a public roadway.

The complaint alleges that the city is liable for the officer's conduct under the

doctrine of respondeat superior. Further, the complaint seeks damages against

the city for its alleged failure to discipline Brill.

The city and Officer Brill filed a Civ.R. 12(B)(6) motion to dismiss based on

governmental immunity. Riotte opposed the motion. The trial court denied the

defendants' motion, stating that the defendants "are not entitled to immunity

against plaintiffs claims under Ohio Revised Code Chapter 2744." The city and

Brill now raise the following assignments of error for our review:

"[I.] The trial court erred and improperly denied defendant-appellant city'smotion to dismiss because it is immune from plaintiff-appellee's claimsunder Ohio Revised Code Chapter 2744.

°Llrj Tpo trial .,ourt erred as a matter of law when denying defendant-appellantTheOfficer Brill's motion to dismiss because he is immune from liability underChapter 2744.

"[III.] The trial court erred as a matter of law when it did not dismiss plaintiff-

'The complaint alleges Azzam's body was found on December 15, but the briefing by bothparties indicates his body was found on December 14.

Vp^^}73 i 2GQ^S77

appell[ee]'s complaint under the Public Duty Doctrine because plaintiff-appellee cannot state a claim for individual recovery against defendants-

appellants."

II.

An order granting a Civ.R. 12(B)(6) motion to dismiss is subject to de novo

review. Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79, 2004-Ohio-4362, 814

N.E.2d 44, ¶5. In reviewing whether a motion to dismiss should be granted, we

accept as true all factual allegations in the complaint. Mitchell u. Lawson Milk

Co. (1988), 40 Ohio St.3d 190, 192, 532 N.E.2d 753. When granting a motion to

dismiss under Civ.R. 12(B) (6), "it must appear beyond doubt that the plaintiff can

prove no set of facts entitling [plaintiff] to relief." Vail v. Plain Dealer Publishing

Co., 72 Ohio St.3d 279, 280, 1995-Ohio-187, 649 N.E.2d 182.

III.

A. GovernmentalImmunity

Under R.C. 2744.02(A)(1), political subdivisions are afforded a general

grant of immunity from civil liability. The section provides:

"For the purposes of this chapter, the functions of political subdivisions arehereby classified as governmental functions and proprietary functions.Except as provided in division (B) of this section, a political subdivision isnot liable in damages in a civil action for injury, death, or loss to person orproperty allegedly caused by any act or omission ofthe political subdivisionor an employee of the political subdivision in connection with a

governmental or proprietary function."

There are exceptions to the general grant of immunity and Riotte contends

47a

that the exception under R.C. 2744.02(B)(3) applies in this case. That section

provides:

"Subject to sections 2744.03 and 2744.05 of the Revised Code, a politicalsubdivision is liable in damages in a civil action for injury, death, or loss toperson or property allegedly caused by an act or omission of the politicalsubdivision or of any of its employees in connection with a governmentalor proprietary function, as follows:

"(3) Except as otherwise provided in section 3746.24 of the Revised Code,political subdivisions are liable for injury, death, or loss to person orproperty caused by their negligent failure to keep public roads in repairand other negligent failure to remove obstructions from public roads ***."except that it is a full defense to that liability, when a bridge within amunicipal corporation is involved, that the municipal corporation does nothave the responsibility for maintaining or inspecting the bridge."

R. C. 2744.03 provides several defenses for political subdivisions in relevant

part as follows:

"(A) In a civil action brought against a political subdivision or an employee of apolitical subdivision to recover damages for injury, death, or loss to personor property allegedly caused by any act or omission in connection with agovernmental or proprietary function, the following defenses or immunitiesmay be asserted to establish nonliability:

"(3) The polzticai subdivision is imm une from liability if the action orfailure to act by the employee involved that gave rise to the claim ofliability was within the discretion of the employee with respect topolicy-making, planning, or enforcement powers by virtue of theduties and responsibilities of the office or position of the employee."

R.C. 2744.03(A)(6) governs immunity for an employee of a political

V%0737 pBO479

-5-

subdivision and provides:

"(6) In addition to any immunity or defense referred to in division (A)(7) of

this section and in circumstances not covered by that division or sections3314.07 and 3746.24 of the Revised Code, the employee is immune fromliability unless one of the following applies:

x**

"(b) The employee's acts or omissions were with malicious purpose,in bad faith, or in a wanton or reckless manner[.]"

In Colbert v. Cleveland, 99 Ohio St.3d 215, 2003-Ohio-3319, 790 N.E.2d

781, the Ohio Supreme Court interpreted the immunity statutes as setting forth

a three-tier analysis, stating the following:

"Determining whether a political subdivision is immune from tort liabilitypursuantto R.C. Chapter 2744 involves a three-tiered analysis. Greene

Cty. Agricultural Soc. v. Liming, 89 Ohio St.3d 551, 556-557, 2000-Ohio-

486, 733 N.E.2d 1141. The first tier is the general rule that a politicalsubdivision is immune from liability incurred in performing either agovernmental function or proprietary function. Id. at 556-557, 733 N.E.2d1141; R.C. 2744.02(A)(1). However, that immunity is not absolute. R.C.

2744.02(B); Cater u. Cleveland, 83 Ohio St.3d 24, 28, 1998-Ohio-421, 697

N.E.2d 610.

"The second tier of the analysis requires a court to determine whether any of thefive exceptions to immunity listed in R.C. 2744.02(B) apply to expose thepolitical subdivision to liability. Id. at 28, 697 N.E.2d 610. At this tier, thecourt may also need to determine whether specific defenses to liability fornag!fgont operatinn of a motor vebicle listed in R.C. 2744.02(B)(1)(a)

through (c) apply.

"If any of the exceptions to immunity in R.C. 2744.02(B) do apply and no defensein that section protects the pohtical subdivision from liability, then thethird tier of the analysis requires a court to determine whether any of thedefenses in R.C. 2744.03 apply, thereby providing the political subdivisiona defense against liability." Id. at ¶7-9.

%07 ;7 PG04SQ

The city and Officer Brill contend that Riotte did not meet his burden

under R.C. 2744 to demonstrate that the exception under R.C. 2744.02(B)(3)

applies. In particular, the defendants contend that they did remove the

obstruction (Azzam's vehicle) from the roadway and, therefore, under the plain

language of the statute ("negligent failure to remove obstructions from public

roads" (emphasis added)) the exception does not apply. Riotte contends that Brill

and the city were negligent in failing to remove Azzam's disabled vehicle prior to

the crash.

Accepting the factual allegations in the complaint as true, which we are

required to do, it is plausible that Riotte may be able to invoke an exception to

the general grant of governmental immunity. The city and Brill contend that

even if Riotte demonstrates that an immunity exception applies, they are

nonetheless entitled to immunity because of the defense provided under R.C.

2744.03(A)(3) ("the action or failure to act by the employee involved that gave rise

to the claim of liability was within the discretion of the employee with respect to

policy-making, planning, or enforcement powers ***°). We find, however, that

the „ord is not developed enough at this poant to determine whether Brill's

actions involved policy-making, planning, or enforcement powers left to his

discretion.

Moreover, accepting the complaint's allegations as true, sufficient facts

37 R0481

were alleged to survive a motion to dismiss on the issue of whether Brill's "acts

or omissions were * * * in a wanton or reckless manner," so as to possibly expose

him to liability under R.C. 2744.03(A)(6)(b).

B. Doctrine of Respondeat Superior

"Under the doctrine of respondeat superior, a principal or employer may

generally be held liable for tortious acts committed by its agents or employees if

such acts occur within the scope of the employment relationship " Pierson U.

Rion, Montgomery App. No. 23498, 2010-Ohio-1793, ¶44, citing Clark v.

Southuiew Hosp. & Family Health Ctr., 68 Ohio St.3d 435, 438, 1994-Ohio-519,

628 N.E.2d 46. For an act to fall within the scope of employment, it must be

"calculated to facilitate or promote the business for which the [employee] was

employed." Osborne u. Lyles (1992), 63 Ohio St.3d 326, 329, 587 N.E.2d 825. The

existence of respondeat superior liability depends on the existence of control by

a principal or employer over an agent or employee. Natl. Union Fire Ins. Co. of

Pittsburgh, PA v. Wuerth, 122 Ohio St.3d 594, 2009-Ohio-3601, 913 N.E.2d 939,

¶20.

in general, if an act is committed within the scope of employment, it will

be authorized, either expressly or impliedly, by the employer. Anousheh v. Planet

Ford, Inc., Montgomery App. Nos. 21960, and 21967, 2007-Ohio-4543, ¶45. "In

that situation, the doctrine of respondeat superior liability will apply and the

^^t^`^131 ^qp 4 8 2

plaintiff need not prove ratification to hold the employer liable." Fulwiler v.

Schneider (1995), 104 Ohio App.3d 398, 406, 662 N.E.2d 82. A plaintiff must

show ratification only where the employee's actions are outside the scope of

employment. Id.; Anousheh at id.

Whether an employee is acting within the scope of his employment is a

question to be decided by the trier of fact. Osborne at 330. "Only when

reasonable minds can come to but one conclusion does the issue regarding scope

of employment become a question of law." Id.

Here, the complaint set forth sufficient facts that could potentially support

the city's liability under the theory of respondeat superior and, as already

discussed, the complaint also set forth sufficient facts to survive a motion to

dismiss based on governmental immunity.

C. Failure to Discipline Claim

The city cites two cases in support of its position that it is immune from

Riotte's claim that it failed to discipline Brill: McCloud v. Nimmer (1991), 72

Ohio App.3d 533, 595 N.E.2d 492 and Hall-Pearson v. S. Euclid (Oct. 8, 1998),

C uyahoga App. No. 73429.

McCloud and Hall-Pearson stand for the proposition that police provision

is a governmental function subject to statutory immunity, unless an exception

applies. There is no immunity exception for failure to discipline and based on the

^^^^^7 3 7

facts as alleged in the complaint, no other exception for this claim would apply.

Thus, the defendants' motion to dismiss should have been granted as it related

to Riotte's claim against the city for its alleged failure to discipline Officer Brill.

In light of the above, the defendants' first assignment of error is overruled

in part and sustained in part. The trial court's denial of the defendants' motion

to dismiss is affirmed except as it related to Riotte's claim of failure to discipline

Officer Brill. The second assignment of error is overruled in toto.

D. Public-Duty Rule

The defendants contend in their third assignment of error that Riotte's

action is barred under the public-duty rule. We disagree.

The public-duty rule was adopted by the Ohio Supreme Court in Sawichi

v. Ottawa Hills (1988), 37 Ohio St.3d 221, 525 N.E.2d 468. Under the rule, a

municipality owes a duty only to the general public when performing functions

imposed on it by law and is, therefore, not liable for a breach of that duty

resulting in harm to an individual, absent a special duty owed to the injured

person. Id. at 230. In Sawicki, the Ohio Supreme Court also adopted a special-

duty exception to thn public-duty rule. The following elements need to be present

for the exception to apply:

«(1) an assumption by the municipality, through promises or actions, of anaffirmative duty to act on behalf of the party who was injured: (2)knowledge on the part of the municipality's agents that inaction could leadto harm; (3) some form of direct contact between the municipafity's agent

w0737 r^484

-10-

and the injured party; and (4) that party's justifiable reliance on themunicipality's affirmative undertaking." Id. at paragraph four of the

syllabus.

In a case subsequent to Sawicki, Estate of Graves u. Circleuille, 124 Ohio

St.3d 339, 2010-Ohio-168, 922 N.E.2d 201, the Ohio Supreme Court explained

that at the time it adopted the public-duty rule, R.C. Chapter 2744 had not been

enacted and the Court had judicially abrogated sovereign immunity as a defense

for municipalities, thus, there was no immunity for political subdivisions.

Accordingly, in Estate of Graves, the Court noted that because political

subdivisions and their employees now have statutory immunity, the "rationale

behind [its] adoption of the public-duty rule in Sawicki is no longer compelling."

Estate of Graves, ¶20. The Court held that "[t]he public-duty rule adopted by this

court in Sawicki v. Ottawa Hills (1988), 37 Ohio St.3d 222, 525 N.E.2d 468, is not

applicable in civil actions brought against employees of political subdivisions for

wanton or reckless conduct." Estate of Graves, at syllabus.

Riotte alleges in his complaint that Officer Brill's conduct was wanton or

reckless, and sets forth sufficient facts to plausibly support the claim.

'^ _.._ ...,.^st.e is.. : l,cable here and the motion to dismissthe pubiic-d-u^ napp ^., -ss

on this ground was properly denied.

IV.

In light of the above, the trial court properly denied the motion to dismiss

geuM7 *485

-11-

the city of Cleveland and Officer Daniel Brill except as it related to the failure to

discipline claim. In its judgment entry denying the defendants' motion to

dismiss, the court found that the defendants are "not entitled to immunity

against plaintiff's claims under Ohio Revised Code Chapter 2744." We find that

Riotte has at least alleged sufficient facts to survive a Civ.R. 12(B)(6) motion to

dismiss, but do not make a determination about immunity because the record is

not developed enough. The determination of whether governmental immunity

under R.C. 2744.02 applies is a question of law to be decided by the court. Conley

v. Shearer (1992), 64 Ohio St.3d 284, 292, 595 N.E.2d 862. Accordingly, on

remand, further proceedings shall be held so that the determination can be made.

Judgment affirmed in part and reversed in part. Case remanded to trial

court for further proceedings consistent with this opinion.

It is ordered that appellants and appellee split the costs herein taxed.

The court finds therewere reasonablegrounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

Cuyahoga County Court of Common Pleas to carry this judgment into execution.

A ce*tifi jl cop y ofthis entry shall constitute the mandate pursuant to Rule

%G737 P60486

-12-

27 of the Rules of Appellate Procedure.

KENNETH A. ROCCO, J., andKATHLEEN ANN KEOUGH, J., CONCUR

dai^737 Ts34 87

CC 97 / 2783

Tfje ffitate uf ® fjtu, I ss.Cuyahoga County.

3n Xegtintottp Mhereuf, I do hereunto subscribe my name officially,

and affix the seal of said court, at the Coyt House in the City of

Appeals within and for said County, and in whose custody the files, Journals and records of said Court are

required by the laws of e State (of Ohto be, kept, hereby certify that the foregoing is taken and copied

t \from the Journal I I ^

of the proceedings of the Court of Appe A5iain and for said Cuyahoga Cou

copy ) has been compared by me with the original entry on said Journal^

0

Cleveland, ip ,aid CounW, this

day of

I, GERALD E. FUERST, Clerk of the Court of

^ GERAL", Ft,'ERS^ Clefk of -C'ourts11

l A %AQBy . ^ ^c i^ `i De ut Cl kp y er

APPENDIX B

Court of Appeals of Ohio, Eighth DistrictCounty of Cuyahoga

Gerald E. Fuerst, Clerk of Courts

SAMUEL RIOTTE, ADMINISTRATOR FOR THE

Appellee COA NO. LOWER COURT NO.96129 CP CV-730270

COMMON PLEAS COURT

CITY OF CLEVELAND, ET AL

Date 10/14/11

Appellant MOTION NO. 447870

Journal EntrY

Motion by Appellants for reconsideration is denied.

RECEIVED FOR FILING

OCT 14 2011HST n ,F APPEALS ==9

DEP.

Judge KENNETH A ROCCO, Concurs

Judge KATHLEEN ANN KEOUGH, Concurs

A0739 M0848

e LARRY

CC 9712783

ETje 6tate of ®bio, I. ss,Cuyahoga County. I, GERALD E. FUERST, Clerk of the Court of

Appeals within and for said County, and in whose custody the files, Journals and records of said Court are

required by the laws of the S^ate of Ohio, to be, kRt, hereby certify that the foregoog, is tften and copied

from the Journal

of the proceedings of the Court of Appeals within aitl"Yor said Cuyahoga Cornty, and that the said foregoing

cogy,,,has keen compared by me with the original entry on said Journal \/^

and that the same is correct transcript thereof.

and affix the seal of spid court, at the Court^Hquse in the City of

Clevelandy- n̂ said Coun

day of F ^-(^OM

3n Xegtirnunp 30h¢eeuf, I do hereunto subscribe m

F4EIPST,

APPENDIX C

QCourt of appealg of ®ljio, QEigljtlj Migtrict

County of CuyahogaGerald E. Fuerst, Clerk of Courts

SAMUEL RIOTTE, ADMINISTRATORFOR THE ESTATE OF EMIL AZZAM

Appellee COA NO. LOWER COURT NO .96129 CP CV-730270

COMMON PLEAS COURT

CITY OF CLEVELAND, ET AL.

Appeilants MOTION NO. 447871

Date 11/0112011

Jou^Entry

This matter is before the court on appellant's application for en banc consideration.

Pursuant to App.R. 26, Loc.App.R. 26, and McFadden u. Cleveland State Univ., 120 Ohio St.3d

54, 2008-Ohio-4914, 896 N.E.2d 672, we are obligated to resolve conflicts between two or more

decisions of this court on any issue that is dispositive of the case in which the application is

filed.

Appellant's application does not demonstrate any conflict between the panel's decision

and other decisions from this district. Therefore, appellants' apphcation for en banc

consideration is denied.

V. - -^^ n ca^a, 11X^1 tY tMARY LEEN KILBANE, ADMINISTRATIVE JUDGE

Concurring:

R E, C:F 9@AE t.e^ t`f`?R P lL VN Gq

1;i;111y, ¢ @ yn

CLEr4t Of' @ 7FJa^ttJy^i;q^ Af^PEAISDEP.

tn q PATRICIA A. BLACKMON, J.,d r' MARY J. BOYLE, J.,

o FRANK D. CELEBREZZE, JR., J.,p COLLEEN CONWAY COONEY, J.,

EiLEEN A. GALLAGi3RR, J.,SEAN C. GALLAGHER, J.,LARRY A. JONES, J.,KATHLEEN ANN KEOUGH, J.,KENNETH A. ROCCO, J.,MELODY J. STEWART, J., andJAMES J. SWEENEY, J.

Fq

VOLO 740 PO C, 9 4G

CC 97 / 2783

Tfje ^btate of ®lyfo, I ss,Cuyahoga County. I, GERALD E. FUERST, Clerk of the Court of

Appeals within and for said County, and in whose custody the files, Journals and records of said Court are

required by the laws ^f the State of Ohig to be, kept, hereby certify that the foregoing is taken and copiedr /^

of the proceedings of the Court of AppeAs _xiAthin and for said Cuyahoga Coun

copy ^asibeen compared by me with the original entry on said Journal

and that the same is correct transcript thereof.

Cleveland, in spidCounty

, and that the said foregoing

.3tt @Cegtitnonp Whereot, I do hereunto subscribe my name officially,

and affix the seal of said court, at the Cour/t House in the City of

day of

By