SAMPSON, Appellee, v. CUYAHOGA METROPOLITAN HOUSING AUTHORITY et al., Appellants, 188 Ohio App. 3d 250

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 plaintiffs 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 {¶ 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 from liability is a question of law that should be resolved by the trial court, preferably on a motion for

summary judgment. Sabulsky v. Trumbull Cty., Trumbull App. No. 2001-T-0084, 2002-Ohio-7275, 2002 WL 31886686, at ¶ 7, citing Conley v. Shearer (1992), 64 Ohio St.3d 284, 595 N.E.2d 862. {¶22} In the motion for

summary judgment, CMHA argued that it was entitled to immunity from suit pursuant to R.C. 2744.02, which states: [A] political subdivision is not liable in damages 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 in connection with a governmental or proprietary function. {¶ 23} In response, Sampson maintains that R.C. 2744.02 is inapplicable pursuant to an express exception outlined in R.C. 2744.09(B), which states that R.C.

Chapter 2744 shall not apply to “[cjivil 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.” (Emphasis added.) {¶ 24} CMHA argues that none of Sampson’s causes of action stemmed from his employment, particularly his claim for intentional infliction of emotional distress.

However, after a review of the facts and pertinent law, we find that all of Sampson’s claims, including his claim for intentional infliction of emotional distress, clearly arose out of his employment relationship, thus barring CMHA from asserting immunity pursuant to R.C. 2744.09(B). {¶ 25} CMHA argues that Fuller v. Cuyahoga Metro. Hous. Auth., 8th Dist. No. 92270, 2009-Ohio-4716, 2009 WL 2894456, and Inghram v. Sheffield Lake (Mar. 7, 1996), 8th Dist. No. 69302, 1996 WL 100843, both support its position.

However, both cases are clearly distinguishable. {¶ 26} Fuller was a CMHA employee who was arrested after entering a vacant CMHA property while he was off duty. Fuller filed suit against CMHA for negligent hiring, retention, and intentional infliction of emotional distress. Fuller is clearly not relevant to our discussion in the instant case because Fuller was off duty at the time of his arrest, whereas here, an employee meeting was specifically scheduled for the sole purpose of arresting Sampson and several other coworkers, in front of several hundred employees, with the specific purpose of setting an example.

Sampson’s arrest was clearly within the purview of his employment, while Fuller’s was not. Further, Fuller does not even address R.C. 2744.09, which is specifically at issue in this case. {¶ 27} Similarly, Inghram is also factually distinguishable. While Inghram was working in North Royalton, he locked himself out of his vehicle. He contacted the North Royalton Police Department for assistance. When the officers arrived, they mistakenly arrested Inghram, believing a warrant was issued out of Sheffield Lake for his arrest.

Later, it was discovered that the arrest warrant was for another individual of the same name. Inghram sued both North Royalton and Sheffield Lake for libel, slander, malicious prosecution, false arrest, abuse of process, and negligence. Inghram is clearly not relevant to our discussion here because, even though Inghram was arrested while he was working, his claims were not against his employer.

Inghram never addressed R.C. 2744.09, which is our focus in the instant case. {¶ 28} The first case in which this court specifically addressed whether intentional torts can arise out of an employment relationship pursuant to R.C. 2744.09(

B) was Ventura v. Independence (May 7, 1998), 8th Dist. No. 72526, 1998 WL 230429. Ventura was employed by the city of Independence as a maintenance worker and had several medical conditions that restricted his ability to perform certain tasks at work. Ventura sued the city, alleging that the city failed to accommodate his medical conditions and that he was assigned tasks that exacerbated his conditions. Ventura alleged that this conduct by the city constituted an intentional tort. Although the Ventura court ultimately concluded that the intentional-tort claims did not arise out of the employment relationship, it did not conduct a full analysis of R.C. 2744.09(

B) and concluded that 2744.09(

B) did not apply to the specific facts of the case. {¶ 29} Several subsequent cases from this court relied on Ventura to bar employees from recovering against political subdivisions for intentional torts. However, such reasoning was misplaced in light of the language used in Ventura, which limited its holding to the facts of that case. In Nielsen-Mayer v. Cuyahoga Metro. Hous. Auth. (Sept. 2, 1999), 8th Dist.

No. 75969, 1999 WL 685635, this court stated: This appellate court has recently determined that intentional torts do not arise out of the employment relationship and that the sovereign immunity codified in R.C. 2744, et seq., applies to immunize the political subdivision from such intentional tort claims. Id. at *1. {¶ 30} In support of this broad proposition of law, Nielsen-Mayer cited Ventura. However, Ventura articulated a narrow holding that the plaintiff could not recover for his intentional torts in that case because R.C. 2744.09(

B) did not apply to those specific facts. Ventura did not create a broad proposition of law as stated in Nielsen-Mayer. Similarly, in Chase v. Brooklyn City School Dist. (2001), 141 Ohio App.3d 9, 749 N.E.2d 798, this court relied on an overly broad

interpretation of Ventura and concluded that intentional torts could not arise out of the employment relationship pursuant to R.C. 2744.09(B). {¶ 31} In our more recently decided case, Young v. Genie Industries, 8th Dist. No. 89665, 2008-Ohio-929, this court reiterated that R.C. 2744.09(

B) did not allow an employee to recover for an intentional tort against a political subdivision. Specifically, Young relied on Brady v. Safety-Kleen Corp. (1991), 61 Ohio St.3d 624, 576 N.E.2d 722, which held that intentional torts do not arise out of the employment relationship and that such conduct takes place outside of the employment relationship. We find this court’s reliance on Brady in this context to be misplaced. Brady was a workers’ compensation case and never dealt with sovereign immunity or R.C. 2744.09(B). {¶ 32} In Wilson v. Stark Cty.

Dept. of Human Servs. (1994), 70 Ohio St.3d 450, 639 N.E.2d 105, the Ohio Supreme Court recognized that political subdivisions are afforded broad immunity pursuant to

Chapter 2744. However, Wilson never addressed the specific exceptions to immunity outlined in R.C. 2744.09, and we are unaware of any Ohio Supreme Court decision that has concluded that intentional torts cannot arise out of the employment relationship with respect to R.C. 2744.09(B). {¶ 33} Therefore, we conclude that our reasoning in Ventura was limited to the specific facts of the case and that Nielsen-Mayer, 1999 WL 685635, and Chase, 141 Ohio App.3d 9, 749 N.E.2d 798, were erroneously decided because they applied a fact-specific holding to create a broad proposition of law, prohibiting recovery under R.C. 2744.09(

B) for intentional torts under any circumstance. Further, we conclude that the reasoning in Brady, 61 Ohio St.3d 624, 576 N.E.2d 722, which held that intentional torts do not arise out of the employment relationship, is inapplicable because Brady dealt solely with workers’ compensation law.

Consequently, the reasoning in Young, 2008-Ohio-929, 2008 WL 603036, was misplaced because it relied exclusively on Brady, which is inapplicable. {¶ 34} As we have determined that intentional torts can arise out of the employment relationship with respect to R.C. 2744.09(B), we must now look to the totality of the circumstances and determine whether Sampson’s claims actually did arise out of the employment relationship. Ruckman v. Cubby Drilling Inc. (1998), 81 Ohio St.3d 117, 689 N.E.2d 917, citing Fisher v. Mayfield (1990), 49 Ohio St.3d 275, 277, 551 N.E.2d 1271.

In order for a claim to arise out of one’s employment, there must be a causal relationship between the employment and the claim. Keith v. Chrysler, L.L.C., 6th Dist. No. L-09-1126, 2009-Ohio-6974, 2009 WL 5174173, at ¶ 16, citing Aiken v. Indus. Comm. (1944), 143 Ohio St. 113, 117, 28 O.O. 50, 53 N.E.2d 1018. A direct causal connection is not required; an indirect causal relationship is sufficient. Keith at ¶ 17, citing Merz v. Indus. Comm. of Ohio (1938), 134 Ohio St. 36, 11 O.O. 414, 15 N.E.2d 632. {¶ 35} The facts of this case clearly indicate that Sampson’s claims stem from his employment with CMHA.

Sampson and approximately 200 coworkers were specifically told to report to the Lakeside Avenue warehouse for their work assignments. The meeting occurred during the workday, and the arrested employees were handcuffed and searched in front of their fellow employees. The facts indicate that CMHA intended this meeting to serve as an example to other employees, demonstrating that if caught stealing, they too would be placed on display and arrested, searched, handcuffed, and taken away in a patrol car before hundreds of their fellow workers.

Phillips acknowledged that this served as an example to other CMHA employees, and Sampson maintains that while the employees were being arrested, Phillips announced to the remainder of the employees that this should serve as an example to them. Sampson’s claims clearly arose out of his employment when he was arrested during the workday in front of all of his coworkers, rather than being arrested at home. {¶ 36} Further, the investigation into the alleged gasoline theft by the plumbers was considerably shorter than other investigations into employee theft.

Phillips stated that the investigation into theft by CMHA painters, who were arrested on the same day as Sampson and the other plumbers, lasted approximately nine months, as opposed to the mere several weeks of investigation conducted regarding the alleged plumber theft. {¶ 37} Consequently, we find that R.C. 2744.09(

B) bars CMHA from raising immunity pursuant to

Chapter 2744. Therefore,

summary judgment was properly denied with respect to all claims asserted against CMHA. {¶ 38} This assignment of error is overruled. ASSIGNMENT OF ERROR NUMBER TWO The trial court erred, as a matter of law, to the prejudice of Anthony Jackson, George Phillips, and Ronald Morenz in not dismissing all claims against them on

summary judgment pursuant to Ohio Revised Code

Chapter 2744 because there is no evidence to create a genuine issue of material fact to except the individual defendants from immunity for intentional torts and individual defendants are immune from negligence claims as a matter of law. {¶ 39} Phillips, Jackson, and Morenz argue that they are entitled to immunity against all of Sampson’s claims. After a review of the record and applicable case law, we disagree. {¶ 40} Sampson does not allege that R.C. 2744.09(

B) applies to bar the defendants from attempting to raise immunity. By its express language, R.C. 2744.09(B), as discussed in the first assignment of error, applies only to political subdivisions, and not their employees. As all three individual appellants have asserted immunity pursuant to

Chapter 2744, we must conduct a two-tiered immunity analysis to determine whether

summary judgment was appropriately denied. State ex rel. Conroy v. Williams, 185 Ohio App.3d 69, 2009-Ohio-6040, 923 N.E.2d 191, at ¶ 17, citing Knox v. Hetrick, 8th Dist. No. 91102, 2009-Ohio-1359, 2009 WL 792357, ¶ 15. {¶ 41} First, it is presumed that employees of a political subdivision are immune from suit. There is no dispute that Phillips, Jackson, and Morenz are all employed by CMHA and that CMHA is a political subdivision. Fuller, 2009-Ohio-4716, 2009 WL 2894456, at ¶ 9, citing Moore v. Lorain Metro. Hous.

Auth., 121 Ohio St.3d 455, 2009-Ohio-1250, 905 N.E.2d 606. {¶ 42} Second, we must analyze whether any of the exceptions outlined in R.C. 2744.03(A)(6) apply to bar immunity. State ex rel. Conroy, 185 Ohio App.3d 69, 2009-Ohio-6040, 923 N.E.2d 191, at ¶ 20, citing Knox. Sampson specifically argues that R.C. 2744.03(A)(6)(

b) applies. It states, “[T]he employee is immune from liability unless one of the following applies: * * * The employee’s acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner.” {¶ 43} Sampson presented evidence that the relatively short investigation consisted merely of looking at employee time cards and interviewing one car dealership regarding gas-tank capacity. Phillips, Jackson, and Morenz orchestrated the plan to arrest 13 employees at the warehouse in front of approximately 200 of their fellow workers.

They claim that this was to protect the arrested employees from being arrested in front of their children. However, comments made in the subsequent press release indicate that the real motivation for arresting the employees at the warehouse was to use the arrested employees as an example for all CMHA employees, demonstrating that they too would be arrested if they stole from CMHA.

Jackson helped draft the press release. {¶ 44} In January 2005, Morenz drafted a report detailing problems with the investigation, such as that not all CMHA vehicles contained gas cards, employees shared their individual PIN numbers, and not all employees who needed to use the gas cards were issued PIN numbers. In March 2005, Morenz even noted that Sampson’s explanation that he shared his PIN number was plausible. Charges were ultimately dismissed against all of the plumbers. {¶ 45} Factual determinations as to whether conduct has risen to the level of wanton or reckless is normally reserved for trial. Fabrey v.

McDonald Village Police Dept. (1994), 70 Ohio St.3d 351, 356, 639 N.E.2d 31, citing Matkovich v. Penn Cent. Transp. Co. (1982), 69 Ohio St.2d 210, 23 O.O.3d 224, 431 N.E.2d 652. Therefore, we find that Sampson has presented evidence that creates a genuine issue of material fact as to whether the conduct of Phillips, Jackson, and Morenz was wanton or reckless pursuant to R.C. 2744.03. {¶ 46} Consequently,

summary judgment was appropriately denied with respect to the claims against the individual employees. This assignment of error is overruled. Judgment affirmed. Gallagher, A.J., and Blackmon, Jones, and Sweeney, JJ., concur. Boyle, J., concurs in judgment only. Rocco, J., concurs in part and dissents in part, with separate opinion. Celebrezze Jr. and Dyke, JJ., concur in opinion of Judge Rocco. Cooney, J., concurs in part and dissents in part, with separate opinion, and concurs in opinion of Judge Rocco as to the first assignment of error. Stewart, J., concurs in opinion of Judge Cooney. McMonagle, J., recused from participation.