[Cite as Lanier v. Luxottica of Am., Inc., 2023-Ohio-4041.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
JONATHAN LANIER, : APPEAL NO. C-220593 TRIAL NO. A-2103516 Plaintiff-Appellant, :
vs. : O P I N I O N. LUXOTTICA OF AMERICA, INC., :
:
and :
BREANNE GILBERT, :
Defendants-Appellees. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: November 8, 2023
James E. Kolenich, for Plaintiff-Appellant,
Robbins, Kelly, Patterson & Tucker, LPA, and Matthew C. Curran, for Defendants- Appellees. OHIO FIRST DISTRICT COURT OF APPEALS
BOCK, Judge.
{¶1} Plaintiff-appellant Jonathan Lanier brings this appeal, arguing that the
trial court erred by granting summary judgment in favor of defendants-appellees
Luxottica of America, Inc. (“Luxottica”), and Breanne Gilbert (collectively,
“defendants”) on Lanier’s claim for false arrest. Because Lanier failed to show that
Gilbert directed the police to arrest Lanier, we affirm the trial court’s judgment.
I. Facts and Procedure
{¶2} In October 2018, an employee of Sunglass Hut in Kenwood, which is
owned by Luxottica, reported a theft to the Hamilton County Sheriff’s Office
(“HCSO”). Deputy Sheriff Jason Schmieg investigated the theft.
{¶3} Five days later, Gilbert, an employee of Sunglass Hut, called the
deputies to report that the shoplifter from the previous week had returned to the store.
Deputies went to the store and arrested Lanier.
{¶4} In February 2019, at the state’s request, the trial court dismissed
Lanier’s theft case and expunged the record. The state issued Lanier a public apology
after it determined that Lanier did not match the physical identity of the thief in the
store’s surveillance footage.
{¶5} Later in 2019, Lanier sued defendants for “negligent misidentification.”
The trial court granted defendants’ motion for summary judgment, finding that Ohio
does not recognize a tort for “negligent misidentification.” Lanier refiled his complaint
in October 2021 for false arrest, respondeat superior, and negligent hiring. He argued
that Gilbert did not act in good faith by wrongfully identifying him as the person who
had committed theft in Sunglass Hut.
2 OHIO FIRST DISTRICT COURT OF APPEALS
Investigating officers testify that Gilbert never directed them to arrest Lanier.
{¶6} Lanier deposed Deputy Sheriffs Schmieg, Prickett, and Fore, all who
had responded to Gilbert’s call.
{¶7} Schmieg had begun to investigate the shoplifting incident shortly after
it happened, five days before the deputies detained Lanier. Schmieg had viewed the
store surveillance video before Gilbert’s report.
{¶8} Fore testified that he watched the video after Lanier had been placed in
handcuffs and told Schmieg that he agreed 100 percent that it was Lanier in the video.
Schmieg’s body-worn camera footage showed both deputies stating that they believed
the man in the video was Lanier.
{¶9} After they watched the video, the deputies asked Gilbert to come to the
parking lot to see if she could identify Lanier as the shoplifter. After Gilbert identified
Lanier, the deputies arrested him.
{¶10} Schmieg testified that Lanier’s arrest was “based on the prior report * *
* confirmed [that] an offense * * * happened, eyewitness testimony, and * * * Deputy
Fore’s review of the video.” He added that establishing probable cause “is based on
[the] totality of the evidence and the multiple officers’ point of view.”
Luxottica and Gilbert moved for summary judgment.
{¶11} In July 2022, defendants moved for summary judgment, arguing that
the evidence showed that Gilbert did not maliciously report that Lanier was the thief.
The trial court found that Gilbert did not direct or demand Lanier’s arrest:
I do see the officers investigating. I know that there’s some issue about
when did they actually look[ed] at the video. * * * I don’t think it matters.
* * * I do think [Gilbert] made identification. * * * So, to me, that was
3 OHIO FIRST DISTRICT COURT OF APPEALS
sort of a crucial moment that that officer was going to arrest based upon
identification of the eyewitness, not that the eyewitness said arrest him.
But if the eyewitness said that’s the guy, that was going to be enough for
the officer to say, I’m arresting based upon my investigation. So I don’t
really see that the employee demanded or directed the officers to arrest.
And, to me, that’s what’s key here.
{¶12} The trial court further stated that a witness’s identification is not a
request or demand to arrest a person.
Identification is something different, because people identify people all
the time. That doesn’t mean that they have to be arrested because that
person said I ID’d them. The officers make that decision, I think. And
the affidavits from the officers indicated they were never directed or
demanded to arrest them. That they did their own investigation, they
thought this was the person * * * she says, I’m 100 percent certain that
that’s the person. That’s not, to me, not a request to apprehend. It’s
giving the officers information this is the person that committed the
theft.
{¶13} The trial court granted defendants’ summary-judgment motion. Lanier
appeals the trial court’s judgment.
II. Law and Analysis
{¶14} In his sole assignment of error, Lanier argues that the trial court erred
in granting summary judgment in favor of Gilbert and Luxottica because Gilbert
maliciously made a false identification. Lanier asserts that Gilbert should be liable for
wrongful arrest where the deputies physically made the arrest.
4 OHIO FIRST DISTRICT COURT OF APPEALS
{¶15} We conduct a de novo review of summary-judgment decisions.
Holloman v. Permanent Gen. Assur. Corp., 1st Dist. Hamilton No. C-180692, 2019-
Ohio-5077, ¶ 8. Under Civ.R. 56(C), summary judgment is proper when the moving
party establishes that “(1) no genuine issue of any material fact remains, (2) the
moving party is entitled to judgment as a matter of law, and (3) it appears from the
evidence that reasonable minds can come to but one conclusion, and construing the
evidence most strongly in favor of the nonmoving party, that conclusion is adverse to
the party against whom the motion for summary judgment is made.” Id. at ¶ 7, quoting
State ex rel. Duncan v. Mentor City Council, 105 Ohio St.3d 372, 2005-Ohio-2163,
826 N.E.2d 832, ¶ 9.
Lanier failed to name his arresters in his false-arrest claim.
{¶16} The elements of a false-arrest claim are (1) the intentional detention of
a person and (2) the unlawfulness of the detention. Ficklin v. Home Depot U.S.A., Inc.,
8th Dist. Cuyahoga No. 94458, 2010-Ohio-5601, ¶ 34. A false-arrest claim must be
filed against those who made the arrest or their employees. Barnes v. Meijer Dept.
Store, 12th Dist. Butler No. CA2003-09-246, 2004-Ohio-1716, ¶ 16; see Ficklin at ¶ 34.
{¶17} The defendants did not falsely arrest Lanier. Gilbert neither detained
nor arrested Lanier. Gilbert was inside the store when the deputies detained Lanier in
the parking lot. At the deputies’ request, Gilbert came outside to identify Lanier.
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[Cite as Lanier v. Luxottica of Am., Inc., 2023-Ohio-4041.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
JONATHAN LANIER, : APPEAL NO. C-220593 TRIAL NO. A-2103516 Plaintiff-Appellant, :
vs. : O P I N I O N. LUXOTTICA OF AMERICA, INC., :
:
and :
BREANNE GILBERT, :
Defendants-Appellees. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: November 8, 2023
James E. Kolenich, for Plaintiff-Appellant,
Robbins, Kelly, Patterson & Tucker, LPA, and Matthew C. Curran, for Defendants- Appellees. OHIO FIRST DISTRICT COURT OF APPEALS
BOCK, Judge.
{¶1} Plaintiff-appellant Jonathan Lanier brings this appeal, arguing that the
trial court erred by granting summary judgment in favor of defendants-appellees
Luxottica of America, Inc. (“Luxottica”), and Breanne Gilbert (collectively,
“defendants”) on Lanier’s claim for false arrest. Because Lanier failed to show that
Gilbert directed the police to arrest Lanier, we affirm the trial court’s judgment.
I. Facts and Procedure
{¶2} In October 2018, an employee of Sunglass Hut in Kenwood, which is
owned by Luxottica, reported a theft to the Hamilton County Sheriff’s Office
(“HCSO”). Deputy Sheriff Jason Schmieg investigated the theft.
{¶3} Five days later, Gilbert, an employee of Sunglass Hut, called the
deputies to report that the shoplifter from the previous week had returned to the store.
Deputies went to the store and arrested Lanier.
{¶4} In February 2019, at the state’s request, the trial court dismissed
Lanier’s theft case and expunged the record. The state issued Lanier a public apology
after it determined that Lanier did not match the physical identity of the thief in the
store’s surveillance footage.
{¶5} Later in 2019, Lanier sued defendants for “negligent misidentification.”
The trial court granted defendants’ motion for summary judgment, finding that Ohio
does not recognize a tort for “negligent misidentification.” Lanier refiled his complaint
in October 2021 for false arrest, respondeat superior, and negligent hiring. He argued
that Gilbert did not act in good faith by wrongfully identifying him as the person who
had committed theft in Sunglass Hut.
2 OHIO FIRST DISTRICT COURT OF APPEALS
Investigating officers testify that Gilbert never directed them to arrest Lanier.
{¶6} Lanier deposed Deputy Sheriffs Schmieg, Prickett, and Fore, all who
had responded to Gilbert’s call.
{¶7} Schmieg had begun to investigate the shoplifting incident shortly after
it happened, five days before the deputies detained Lanier. Schmieg had viewed the
store surveillance video before Gilbert’s report.
{¶8} Fore testified that he watched the video after Lanier had been placed in
handcuffs and told Schmieg that he agreed 100 percent that it was Lanier in the video.
Schmieg’s body-worn camera footage showed both deputies stating that they believed
the man in the video was Lanier.
{¶9} After they watched the video, the deputies asked Gilbert to come to the
parking lot to see if she could identify Lanier as the shoplifter. After Gilbert identified
Lanier, the deputies arrested him.
{¶10} Schmieg testified that Lanier’s arrest was “based on the prior report * *
* confirmed [that] an offense * * * happened, eyewitness testimony, and * * * Deputy
Fore’s review of the video.” He added that establishing probable cause “is based on
[the] totality of the evidence and the multiple officers’ point of view.”
Luxottica and Gilbert moved for summary judgment.
{¶11} In July 2022, defendants moved for summary judgment, arguing that
the evidence showed that Gilbert did not maliciously report that Lanier was the thief.
The trial court found that Gilbert did not direct or demand Lanier’s arrest:
I do see the officers investigating. I know that there’s some issue about
when did they actually look[ed] at the video. * * * I don’t think it matters.
* * * I do think [Gilbert] made identification. * * * So, to me, that was
3 OHIO FIRST DISTRICT COURT OF APPEALS
sort of a crucial moment that that officer was going to arrest based upon
identification of the eyewitness, not that the eyewitness said arrest him.
But if the eyewitness said that’s the guy, that was going to be enough for
the officer to say, I’m arresting based upon my investigation. So I don’t
really see that the employee demanded or directed the officers to arrest.
And, to me, that’s what’s key here.
{¶12} The trial court further stated that a witness’s identification is not a
request or demand to arrest a person.
Identification is something different, because people identify people all
the time. That doesn’t mean that they have to be arrested because that
person said I ID’d them. The officers make that decision, I think. And
the affidavits from the officers indicated they were never directed or
demanded to arrest them. That they did their own investigation, they
thought this was the person * * * she says, I’m 100 percent certain that
that’s the person. That’s not, to me, not a request to apprehend. It’s
giving the officers information this is the person that committed the
theft.
{¶13} The trial court granted defendants’ summary-judgment motion. Lanier
appeals the trial court’s judgment.
II. Law and Analysis
{¶14} In his sole assignment of error, Lanier argues that the trial court erred
in granting summary judgment in favor of Gilbert and Luxottica because Gilbert
maliciously made a false identification. Lanier asserts that Gilbert should be liable for
wrongful arrest where the deputies physically made the arrest.
4 OHIO FIRST DISTRICT COURT OF APPEALS
{¶15} We conduct a de novo review of summary-judgment decisions.
Holloman v. Permanent Gen. Assur. Corp., 1st Dist. Hamilton No. C-180692, 2019-
Ohio-5077, ¶ 8. Under Civ.R. 56(C), summary judgment is proper when the moving
party establishes that “(1) no genuine issue of any material fact remains, (2) the
moving party is entitled to judgment as a matter of law, and (3) it appears from the
evidence that reasonable minds can come to but one conclusion, and construing the
evidence most strongly in favor of the nonmoving party, that conclusion is adverse to
the party against whom the motion for summary judgment is made.” Id. at ¶ 7, quoting
State ex rel. Duncan v. Mentor City Council, 105 Ohio St.3d 372, 2005-Ohio-2163,
826 N.E.2d 832, ¶ 9.
Lanier failed to name his arresters in his false-arrest claim.
{¶16} The elements of a false-arrest claim are (1) the intentional detention of
a person and (2) the unlawfulness of the detention. Ficklin v. Home Depot U.S.A., Inc.,
8th Dist. Cuyahoga No. 94458, 2010-Ohio-5601, ¶ 34. A false-arrest claim must be
filed against those who made the arrest or their employees. Barnes v. Meijer Dept.
Store, 12th Dist. Butler No. CA2003-09-246, 2004-Ohio-1716, ¶ 16; see Ficklin at ¶ 34.
{¶17} The defendants did not falsely arrest Lanier. Gilbert neither detained
nor arrested Lanier. Gilbert was inside the store when the deputies detained Lanier in
the parking lot. At the deputies’ request, Gilbert came outside to identify Lanier. She
did nothing further. And Lanier did not name HCSO or the deputies who made the
arrest.
Lanier’s false-arrest claim requires a demand for arrest or malice.
{¶18} Citing Foley v. Univ. of Dayton, 150 Ohio St.3d 252, 2016-Ohio-7591,
81 N.E.3d 398, and Jordan v. Giant Eagle Supermarket, 8th Dist. Cuyahoga No.
5 OHIO FIRST DISTRICT COURT OF APPEALS
109304, 2020-Ohio-5622, Lanier argues, “When a business calls the police and the
police make an arrest, not based on anything they independently observed, but only
based on the report made by the business, and that report turns out to be ‘concededly
erroneous,’ then a false arrest claim is available to the injured party.” Lanier asserts
that he established the elements of a false arrest because (1) Gilbert called the deputies,
(2) Lanier’s arrest was “solely based on the report made by” Gilbert, (3) the charge
against him was clearly erroneous, and (4) Gilbert acted in bad faith.
{¶19} Lanier is correct that a business is not completely insulated from
liability for a false arrest. Jordan provides that a business may be liable when an
employee asks or demands that police arrest a suspect, and the result of that request
is an unlawful detention. Jordan at ¶ 36-37. But simply calling the police or providing
information—such as an identification—will not create liability. Id.
{¶20} Foley provided a means for holding a person or entity liable when an
employee falsely accused a person of a crime. In Foley, the occupant of a townhouse
called the police after three men knocked on the door, and the police arrested the men
for burglary. Foley at ¶ 3. The charges were later dismissed. Id. The men asserted
negligence claims against the townhouse occupant. Id. The Ohio Supreme Court held
that, while Ohio law does not recognize a tort for negligent misidentification, there are
other avenues to pursue malicious prosecution or wrongful or false arrest. Id. at ¶ 14.
Specifically, the court noted that a person wrongfully detained could establish
malicious prosecution by establishing that a “prosecution is initiated or continued
with malice and without probable cause, the prosecution has ended in the injured
party’s favor, and in cases founded on civil proceedings, a seizure of the injured party
or his property during the prior proceedings has occurred.” Id.
6 OHIO FIRST DISTRICT COURT OF APPEALS
{¶21} Here, Lanier failed to show that Gilbert directed the deputies to arrest
Lanier or that she acted with malice in reporting him as the thief. Further, a person
who has been wrongly accused under these circumstances could succeed on a
defamation claim. Foley, 150 Ohio St.3d 252, 2016-Ohio-7591, 81 N.E.3d 398 at ¶ 16.
But Lanier did not allege defamation against Gilbert and Luxottica.
The deputies identified Lanier as the thief.
{¶22} Lanier asserts that the deputies “flatly stated that they made no pre-
arrest investigation and made the arrest based on the report that they received from
the Appellees.” But the evidence does not bear that out.
{¶23} In his deposition, Schmieg testified that he had begun investigating the
theft five days before Lanier’s arrest and had reviewed the video before encountering
Lanier. Fore testified that he reviewed the video after Lanier was put in handcuffs and
that he was “100 percent” sure that Lanier was the shoplifter on the video. Fore and
Schmieg agreed that there was enough probable cause for an arrest based on the
“totality of the circumstances.”
{¶24} Accordingly, no genuine issue of material fact existed to show that
defendants were liable for false arrest. Lanier’s sole assignment of error is overruled.
III. Conclusion
{¶25} The trial court did not err in granting defendants’ motion for summary
judgment. Therefore, we affirm the trial court’s judgment.
Judgment affirmed.
WINKLER, P.J., and KINSLEY, J., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion. 7