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Moore v. City of Cleveland

Court of Appeals of Ohio, Eighth District, Cuyahoga

March 30, 2017

JOANNE MOORE, ET AL. PLAINTIFFS-APPELLANTS
v.
CITY OF CLEVELAND, ET AL. DEFENDANTS-APPELLEES

         Civil Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CV-10-743088, CV-10-743232, CV-10-743235, CV-10-743237, and CV-11-764319

          ATTORNEYS FOR APPELLANTS For Joanne Moore, et al. Jeffrey H. Friedman Friedman, Domiano & Smith Co., L.P.A. Terry H. Gilbert Friedman & Gilbert

          For Florence Bray Sara Gedeon David B. Malik David B. Malik Co., L.P.A.

          For 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 Prosecuting Attorney

          For Georgia Hussein, et al. Joseph F. Scott.

          BEFORE: S. Gallagher, J., Keough, A.J., and E.A. Gallagher, J.

          JOURNAL ENTRY AND OPINION

          SEAN C. GALLAGHER, JUDGE.

         {¶1} 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 appellees.

         BACKGROUND

         {¶2} 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 appeal.[1]

         {¶3} The cases involve allegations against four named city of Cleveland police officers, who are the appellees herein - Lieutenant Michael Baumiller, Sergeant Antoinette McMahan, [2] Detective Georgia Hussein, and Detective Kristin Rayburn -regarding their actions surrounding the arrest, investigation, and release of Anthony Sowell in December 2008.[3]

         {¶4} The underlying facts are succinctly set forth in the trial court's decision, as follows:

         FACTS

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 robbery.
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 Wade.

         CONSOLIDATED COMPLAINTS

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.

         Defendants 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 rule.

         DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

         {¶5} 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."

         {¶6} 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, ¶ 20-22.

         {¶7} 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).

         TRIAL COURT'S SUMMARY JUDGMENT RULING

         {¶8} 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 ...


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