Court of Appeals of Ohio, Eighth District, Cuyahoga
JOANNE MOORE, ET AL. PLAINTIFFS-APPELLANTS
CITY OF CLEVELAND, ET AL. DEFENDANTS-APPELLEES
Appeal from the Cuyahoga County Court of Common Pleas Case
Nos. CV-10-743088, CV-10-743232, CV-10-743235, CV-10-743237,
ATTORNEYS FOR APPELLANTS For Joanne Moore, et al. Jeffrey H.
Friedman Friedman, Domiano & Smith Co., L.P.A. Terry H.
Gilbert Friedman & Gilbert
Florence Bray Sara Gedeon David B. Malik David B. Malik Co.,
Gladys Wade and Latundra Billups Blake A. Dickson Mark D.
Tolles The Dickson Firm, L.L.C. Daniel Z. Inscore
ATTORNEYS FOR APPELLEES For the City of Cleveland, et al.
Barbara A. Langhenry City of Cleveland Director of Law By:
Gary S. Singletary Chief Counsel Michael C. O'Malley
Cuyahoga County Prosecutor By: Barbara R. Marburger Assistant
Georgia Hussein, et al. Joseph F. Scott.
BEFORE: S. Gallagher, J., Keough, A.J., and E.A. Gallagher,
JOURNAL ENTRY AND OPINION
C. GALLAGHER, JUDGE.
In this consolidated appeal, we review the trial court's
decision to grant summary judgment in favor of
defendants-appellees on the basis of immunity for employees
of a political subdivision. Upon review, we reverse the
decision of the trial court only as to Detective Georgia
Hussein. We affirm the decision in favor of the other
The four companion cases involved in this appeal were
consolidated in the trial court and were decided by the same
summary judgment ruling. Separate appeals were filed in each
case. After appellate briefs were filed, this court
consolidated the cases for oral argument and disposition on
The cases involve allegations against four named city of
Cleveland police officers, who are the appellees herein -
Lieutenant Michael Baumiller, Sergeant Antoinette McMahan,
Detective Georgia Hussein, and Detective Kristin Rayburn
-regarding their actions surrounding the arrest,
investigation, and release of Anthony Sowell in December
The underlying facts are succinctly set forth in the trial
court's decision, as follows:
On December 8, 2008, Gladys Wade ran up to a police car and
reported that Anthony Sowell punched and choked her, tried to
rip off her clothes and kill her. The police arrested Sowell
on suspicion that he attempted to kidnap, rob and rape Wade.
Arresting officers created an Incident Report which included
mention of Wade's clothing retrieved from the premises, a
pattern of footprints observed in the yard around
Sowell's residence indicative of a struggle, blood
droplets located on the wall and steps inside the residence,
a broken window leading to the third floor apartment, and
broken glass and discarded women's clothing and panties
found in a trash can on the premises.
The incident was referred to the Sex Crimes and Child Abuse
Unit on December 9, 2008. Defendants Lieutenant Michael
Baumiller and/or Sergeant Antoinette McMahan assigned the
investigation to Detective Georgia Hussein. On December 9,
2008, while Sowell was in custody, Hussein interviewed Wade,
took her statement and attempted to search Sowell's
residence. She did not obtain a search warrant to search the
premises. Hussein then interviewed witnesses at
establishments where Wade went on the day of the incident. On
December 10, 2008, Hussein interviewed Sowell. Detective
Kristin Rayburn took photographs of Wade and Sowell.
Upon completing her investigation on December 10, 2008,
Hussein conferred with Assistant City Prosecutor Lorraine
Coyne to review Wade's allegations. Having determined
that Wade was robbed and not sexually assaulted, Hussein did
not inform Coyne that Sowell was a convicted sex offender
because she did not think that Sowell's criminal
background or status as a registered sex offender was
relevant. Prior to meeting with Coyne, Hussein had neither
conducted a review of the crime scene nor reviewed the
Incident Report created by the arresting patrol officers.
Hussein did not present Coyne with any crime scene evidence.
In total, Hussein presented Coyne with the Incident Report,
the statements of Wade and Sowell, her personal opinion of
Wade's credibility, and an affidavit for the charge of
Coyne subsequently determined that Sowell would not be
charged and Hussein submitted a Final Disposition Receipt on
December 10, 2008 at 4:00 PM authorizing Sowell's
release. (Claims against [Lorraine] Coyne were previously
dismissed on separate motion.) Later that evening, Hussein
visited Sowell's residence and noticed broken glass on
the door. Despite this visit, no additional information was
reported to Coyne or anyone else. On December 11, 2008,
Defendant McMahan reviewed and approved Hussein's
investigation of the incident.
In October 2009, Cleveland Police investigated an incident
involving a naked woman falling from a window of Sowell's
residence. The police obtained a search warrant for
Sowell's residence and discovered human remains in and
around his home. Sowell was subsequently arrested on October
31, 2009 and charged. On July 22, 2011, a jury convicted
Sowell of multiple counts of aggravated murder, attempted
murder, rape, kidnapping and other offenses. The jury verdict
also included findings of guilt related to the kidnapping,
attempted murder, attempted rape and felonious assault of
Claims made in the Consolidated Complaints allege that
individual Defendants Rayburn, Baumiller, McMahan and Hussein
were grossly negligent, willful, wanton and reckless in the
discharge of their duties by releasing Sowell after his
arrest on December 8, 2008. Plaintiffs further claim that
Defendants negligently inflicted extreme emotional distress
upon Plaintiffs. Plaintiffs each seek relief in the form of
monetary damages for their loss and/or injury, review of
policies related to investigations of alleged sex crimes,
attorney fees and punitive damages.
deny liability and move[d] for summary judgment based upon
governmental immunity pursuant to R. C. 2744 et seq.
Defendants also deny liability based upon the public-duty
MOTION FOR SUMMARY JUDGMENT
The record reflects that in their motion for summary
judgment, which was filed December 8, 2014, appellees sought
immunity under R.C. 2744.03(A)(6). Appellees claimed that
"[e]ach of the Defendants is immune under R.C.
2744.03(A)(6) and has no liability in these cases as a matter
of law as they did not violate any duty owed to Plaintiffs
and/or Plaintiffs' decedents."
Contrary to the trial court's statement, appellees did
not rely upon the public-duty rule. In fact, they
specifically indicated in their motion that they were
"not invoking the public duty rule." They have
reiterated this on appeal and agree that the public-duty rule
does not apply in this case. There is no dispute that the
public-duty rule does not apply with respect to the R.C.
2744.03(A)(6)(b) exception to immunity for wanton and
reckless conduct. Estate of Graves v. Circleville,
124 Ohio St.3d 339, 2010-Ohio-168, 922 N.E.2d 201, ¶
Instead, appellees asserted in their motion for summary
judgment that they remained protected by traditional tort
concepts of duty. They argued that in the absence of a
special relationship with Sowell, the Cleveland police
defendants had no duty with regard to the third-party
criminal acts of Sowell following his release from custody.
Further, appellees maintained that in the absence of a legal
duty, political subdivision employees are insulated from
liability even when allegations of wanton and reckless
conduct are raised in the context of R.C. 2744.03(A)(6)(b).
COURT'S SUMMARY JUDGMENT RULING
In granting summary judgment in favor of appellees, the trial
court recognized that the public-duty rule is inapplicable.
However, the trial court found a duty to exist and determined
that "Revised Code Chapter 2744 et seq. imposes
upon government employees the duty not to discharge or omit
to discharge their duties with malicious ...