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McKee v. McCann

Court of Appeals of Ohio, Eighth District, Cuyahoga

June 1, 2017


         Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-16-861930

          FOR APPELLANT Edward McKee, pro se.

          ATTORNEYS FOR APPELLEES Michael E. Cicero Vincent A. Feudo Nicola Gudbranson & Cooper, L.L.C.

          BEFORE: Stewart, J., E.A. Gallagher, P.J., and Jones, J.


          MELODY J. STEWART, J.

         {¶1} As plaintiff-appellant Edward McKee was leaving a Walmart store, he chose to exit the store and bypass a line of customers who were having their purchases verified by a receipt. A Walmart employee asked McKee to produce a receipt, but McKee refused and exited the store. An off-duty South Euclid police officer working as a security guard for Walmart followed McKee to the parking lot, stopped him, and instructed him to produce his receipt. Maintaining that he had no legal obligation to do so, McKee again refused to show his receipt. The security guard called for police assistance. Two officers responded and ordered McKee to show identification. He refused, causing the officers to place him under arrest. McKee then relented and showed the police his identification and receipt, at which point they released him without charge. In response to McKee's citizen complaint about the incident, the police sought an opinion from the city law director, who concluded that the police officers acted appropriately by detaining McKee when he failed to identify himself while being held on suspicion of shoplifting.

          {¶2} McKee brought this action against defendants Brian Shamblin and Patrick Delahanty (the police officers who responded to Walmart); James Wilson (a police lieutenant who wrote an internal report about the incident); Kevin Nietert (the chief of police who asked the law director for a legal opinion on the conduct of the officers); Michael Lograsso (the city law director); and the city of South Euclid ("city").[1] McKee asserted the following claims:

1. Unlawful Detention: McCann and South Euclid
2. Negligence: McCann and South Euclid
3. Intentional Infliction of Emotional Distress: Shamblin and South Euclid
4: Assault and Battery: Shamblin and South Euclid
5. False Arrest: Shamblin and South Euclid
6. Fraudulent Inducement in Verbal Contract: Shamblin and South Euclid
7. Fraudulent Misrepresentation: Shamblin and South Euclid
8. Defamation: McCann, Shamblin, and South Euclid
9. Invasion of Privacy: McCann, Shamblin, Delahanty, and South Euclid
10. Libel: Wilson, Nietert, Lograsso, and South Euclid
11. Respondeat Superior: South Euclid
12. Ratification: Wilson, Nietert, Lograsso, and South Euclid

         {¶3} The city, on behalf of itself, Shamblin, Delahanty, Wilson, Nietert, and Lograsso, filed a motion to dismiss the complaint. It argued that it was immune from liability for the negligence, intentional tort, and respondeat superior claims under R.C. 2744.02. It also argued that claims against the individual defendants were barred by qualified privileges that protected them in the performance of their job duties.

         {¶4} The court granted the motion to dismiss over McKee's opposition, finding both that the defendants were "statutorily immune to plaintiffs specific claims" and that McKee "cannot prove any facts to support his claims against these defendants that would entitle him to relief."

         I. Claims against Shamblin and Delahanty

         {¶5} The first assignment of error contests the dismissal in favor of defendants Shamblin and Delahanty, the city police officers who responded to the Walmart parking lot.

         A. Intentional Infliction of Emotional Distress

         {¶6} The third cause of action alleged that "Shamblin's treatment of the situation, including yelling and moving towards Plaintiff with eyes wide as if he were shocked by a serious crime Plaintiff had committed, was completely out of line with the seriousness of the alleged offense." McKee maintained that Shamblin's "aggressive, combative behavior" caused him to "fear for his safety" and scared him into complying with Walmart's policy to check the receipts of its exiting customers.

         {¶7} Civ.R. 12(B)(6) states that a complaint is not subject to dismissal for failure to state a claim upon which relief may be granted unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his or her claim that would entitle the plaintiff to relief. Doe v. Archdiocese of Cincinnati, 109 Ohio St.3d 491, 2006-Ohio-2625, 849 N.E.2d 268, ¶ 11, citing O'Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242, 327 N.E.2d 753 (1975). Therefore, "[a]s long as there is a set of facts, consistent with the plaintiffs complaint, which would allow the plaintiff to recover, the court may not grant a defendant's motion to dismiss." York v. Ohio State Hwy. Patrol, 60 Ohio St.3d 143, 145, 573 N.E.2d 1063 (1991).

         {¶8} Employees of a political subdivision may be entitled to immunity under R.C. 2744.03(A)(6). That section states that

an employee is immune from liability unless the employee's actions or omissions are manifestly outside the scope of employment or the employee's official responsibilities; the employee's acts or omissions were malicious, in bad faith, or wanton or reckless; or liability is ...

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