[Cite as Wingfiled v. Cleveland, 2014-Ohio-2772.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 100589
DEMETRIUS WINGFIELD PLAINTIFF-APPELLANT
vs.
CITY OF CLEVELAND, ET AL. DEFENDANTS-APPELLEES
JUDGMENT: AFFIRMED
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-12-793246
BEFORE: Keough, J., Jones, P.J., and McCormack, J.
RELEASED AND JOURNALIZED: June 26, 2014 ATTORNEY FOR APPELLANT
Tyrone E. Reed 11811 Shaker Blvd., Suite 420 Cleveland, Ohio 44120
ATTORNEYS FOR APPELLEES
Barbara Langhenry Law Director Alejandro V. Cortes William M. Menzalora City of Cleveland Law Department Cleveland City Hall 601 Lakeside Avenue, Room 106 Cleveland, Ohio 44114 KATHLEEN ANN KEOUGH, J.:
{¶1} Plaintiff-appellant Demetrius Wingfield appeals from the trial court’s
judgment granting the motion for summary judgment of defendants-appellees the city of
Cleveland, the Cleveland police department, and police officers Abraham Cortes and
Jerrold Zarlenga. Finding no merit to the appeal, we affirm.
I. Background
{¶2} In October 2012, Wingfield filed suit against the city of Cleveland, the
Cleveland police department, and two John Doe defendants, alleging negligence and
intentional infliction of emotional distress against all defendants. Wingfield subsequently
filed an amended complaint identifying police officers Cortes and Zarlenga as the John
Doe defendants.
{¶3} Wingfield’s amended complaint alleged that while he was exiting a
restaurant on West 6th Street in Cleveland on July 31, 2011, “one or more mounted horse
traffic police officers came upon the sidewalk upon their horses and negligently knocked
him down and trampled him under the foot of the horses.” The complaint further alleged
that the city was liable for the police officers’ actions, and that the city and police
department had failed to properly train, supervise, and monitor the officers and the horses.
In addition, the complaint alleged that the officers’ actions were committed maliciously,
intentionally, recklessly, and with a conscious disregard for Wingfield’s health, safety, and
well-being, and caused severe emotional and psychological distress.
{¶4} The trial court subsequently granted the appellees’ motion for summary
judgment, finding that the Cleveland police department is not sui juris and thus cannot be sued, and that the remaining defendants were immune from liability under R.C. Chapter
2744, Ohio’s Political Subdivision Tort Liability Act.
{¶5} This appeal followed.
II. Analysis
{¶6} In his first assignment of error, Wingfield asserts that the trial court erred in
granting summary judgment to appellees because the allegations of his complaint fall
within the exception to immunity set forth in R.C. 2744.02(B)(1). In his second
assignment of error, Wingfield contends that the trial court erred in granting summary
judgment because there is a question of fact regarding the officers’ negligence. We
consider these assigned errors together because they are related.
{¶7} Appellate review of summary judgment is de novo, governed by the standard
set forth in Civ.R. 56. 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.
Hollins v. Shaffer, 182 Ohio App.3d 282, 2009-Ohio-2136, 912 N.E.2d 637, ¶ 12 (8th
Dist.). Under Civ.R. 56(C), 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) after construing the evidence most favorably for the party against whom the
motion is made, reasonable minds can reach only a conclusion that is adverse to the
nonmoving party. Zivich v. Mentor Soccer Club, Inc., 82 Ohio St.3d 367, 369-370, 696
N.E.2d 201 (1998); Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267
(1977). {¶8} Initially, we note that Wingfield does not challenge the trial court’s judgment
granting summary judgment to the Cleveland police department because it is not a legal
entity capable of being sued. See Richardson v. Grady, 8th Dist. Cuyahoga Nos. 77381
and 77403, 2000 Ohio App. LEXIS 5960 (Dec. 18, 2000). Accordingly, Wingfield has
abandoned any claim against the police department. See, e.g., Lascu v. Apex Paper Co.,
8th Dist. Cuyahoga No. 95091, 2011-Ohio-4407, ¶ 3.
{¶9} Wingfield asserted claims for negligence and intentional infliction of
emotional distress against the city. 1 It is well established that under R.C. 2744.02,
political subdivisions are immune from intentional torts. Walsh v. Mayfield, 8th Dist.
Cuyahoga No. 92309, 2009-Ohio-2377, ¶ 11, citing Wilson v. Stark Cty. Dept. of Human
Servs., 70 Ohio St.3d 450, 639 N.E.2d 105 (1994). Because the city is a political
subdivision under R.C. 2744.01(F), it is immune from Wingfield’s claim of intentional
infliction of emotional distress. Thus, we analyze whether the trial court properly granted
summary judgment to the city on Wingfield’s negligence claim.
{¶10} Determining whether a governmental entity is immune from tort liability
involves a three-step analysis. Elston v. Howland Local Schools, 113 Ohio St.3d 314,
As part of the negligence claim, Wingfield’s complaint included an allegation that the city 1
negligently failed to properly train, supervise, and monitor the officers. The city treats this allegation as a separate “failure to train” cause of action. But in DiGiorgio v. Cleveland, 8th Dist. Cuyahoga No. 95945, 2011-Ohio-5878, ¶ 31, this court explained that failure to train is not an independent cause of action to which the three-step immunity analysis applies. Although a municipality’s failure to train or supervise its police officers could, in the proper case, be evidence that the municipality acted in a reckless or wanton manner, thereby depriving the municipality of a defense to an exception to immunity, such evidence does not create an independent cause of action regarding the training or supervision of police officers. Id., citing Cater v. Cleveland, 83 Ohio St.3d 24, 697 N.E.2d 610 (1998). 2007-Ohio-2070, 865 N.E.2d 845, ¶ 10. First, R.C. 2744.02(A)(1) sets forth the general
blanket immunity applicable to political subdivisions. It provides that a political
subdivision is generally not liable in a civil action for injury, death, or loss to person or
property incurred while performing governmental or proprietary functions.
{¶11} To overcome this statutory immunity, a plaintiff must show that one of the
five exceptions contained in R.C. 2744.02(B) applies. These exceptions are (1) negligent
operation of a motor vehicle; (2) negligent conduct of employees while carrying out a
proprietary function; (3) a municipality’s failure to keep roads and sidewalks free from
nuisance; (4) injury or loss that occurs on or within buildings used for governmental
functions and is caused by the negligence of the municipality’s employees; and (5) any
other situation in which liability is expressly imposed by the Revised Code.
{¶12} If a plaintiff demonstrates that one of the five enumerated exceptions to
governmental immunity applies, a political subdivision may then assert one of the defenses
set forth in R.C. 2744.03(A) to revive its immunity.
{¶13} This court has recognized that the provision of police services and the
training of police are governmental functions subject to statutory immunity.
Hall-Pearson v. S. Euclid, 8th Dist. Cuyahoga No. 73429, 1998 Ohio App. LEXIS 4796
(Oct. 8, 1998); McCloud v. Nimmer, 72 Ohio App.3d 533, 538, 595 N.E.2d 492 (8th Dist.
1991). Thus, under the three-step analysis set forth above, we must determine whether
any of the exceptions to immunity apply to Wingfield’s negligence claim.
{¶14} Wingfield contends that the city is not immune from liability because the
exception to immunity set forth in R.C. 2744.02(B)(1) — the negligent operation of a motor vehicle — applies. R.C. 2744.02(B)(1) states that “political subdivisions are liable
for injury, death, or loss to person or property caused by the negligent operation of any
motor vehicle by their employees when the employees are engaged within the scope of
their employment and authority.” Wingfield contends that the exception applies to this
case because the “driving of a horse is the equivalent of operating a motor vehicle.”
{¶15} To determine whether the “operation of a motor vehicle,” as used in R.C.
2744.02(B)(1), includes riding a horse, we are guided by the principles of statutory
construction. When construing a statute, courts look at the specific language contained in
the statute and when its meaning is unambiguous and definite, apply the statute as written.
Provident Bank v. Wood, 36 Ohio St.2d 101, 105-106, 304 N.E.2d 378 (1973). Words
and phrases shall be read in context and construed according to the rules of grammar and
common usage. State v. Manocchio, 138 Ohio St.3d 292, 2014-Ohio-785, 6 N.E.23d 47,
¶ 17. “‘Words and phrases that have acquired a technical or particular meaning, whether
by legislative definition or otherwise, shall be construed accordingly.’” Id., quoting R.C.
1.42.
{¶16} Here, the legislature defined “motor vehicle” for purposes of the Political
Subdivision Tort Liability Act. Under R.C. 2744.01(E), the term “motor vehicle” as used
in the Act has the same definition as in R.C. 4511.01, which defines “motor vehicle” as
“every vehicle propelled or drawn by power other than muscular power or power collected
from overhead electric trolley wires * * *.” (Emphasis added.) In short, a motor vehicle
is some sort of mechanized vehicle. A horse, which is obviously powered by its muscles,
is therefore not included in the definition of “motor vehicle.” Although Wingfield argues that there is no reason to treat the “driving of a horse” differently from the “operation of a
motor vehicle,” the statutory definition of “motor vehicle” makes it clear that riding a
horse is not equivalent to operating a motor vehicle. Accordingly, the exception to
immunity for the negligent operation of a motor vehicle does not apply to this case.
{¶17} Because none of the exceptions to immunity set forth in R.C. 2744.02(B)
apply to the facts of this case, the trial court properly granted summary judgment to the
city. Wingfield’s argument that the trial court erred in granting summary judgment
because there is a question of fact regarding whether the officers were negligent is not
relevant to the determinative issue, which is whether the city is entitled to immunity.
Even assuming the police officers were negligent, Wingfield’s claims against the city are
barred because no exception to immunity applies.
{¶18} We next consider the trial court’s grant of summary judgment to officers
Cortes and Zarlenga. Wingfield contends that the officers are not immune from liability
because of the exception for operation of a motor vehicle found in R.C. 2744.02(B)(1).
But the immunity analysis for employees of political subdivisions is governed by R.C.
2744.03(A)(6), not the three-tier analysis set forth in R.C. 2744.02. Cramer v. Auglaize
Acres, 113 Ohio St.3d 266, 2007-Ohio-1946, 865 N.E.2d 9. Under R.C. 2744.03(A)(6),
an employee is immune from liability unless the employee’s acts “were manifestly outside
the scope of the employee’s employment or official responsibilities,” or “were with
malicious purpose, in bad faith, or [done] in a wanton or reckless manner,” or liability is
expressly imposed upon the employee by a section of the Revised Code. Wingfield does
not allege that Cortes and Zarlenga’s actions were outside the course and scope of their employment, and there is no section of the Revised Code that imposes liability for their
actions. Accordingly, the issue is whether their actions were with malicious purpose, in
bad faith, or wanton and reckless.
{¶19} In Anderson v. Massillon, 134 Ohio St.3d 380, 2012-Ohio-5711, 983 N.E.2d
266, the Ohio Supreme Court defined wanton misconduct and reckless conduct for
purposes of the sovereign immunity statutes. “Wanton misconduct is the failure to
exercise any care toward those to whom a duty of care is owed in circumstances in which
there is great probability that harm will result.” Id. at ¶ 33. “Reckless conduct is
characterized by the conscious disregard of or indifference to a known or obvious risk of
harm to another that is unreasonable under the circumstances and is substantially greater
than negligent conduct.” Id. at ¶ 34.
{¶20} “Malicious purpose encompasses exercising ‘malice,’ which can be defined
as the willful and intentional design to do injury, or the intention or desire to harm another,
usually seriously, through conduct that is unlawful or unjustified.” Caruso v. State, 136
Ohio App.3d 616, 620-621, 737 N.E.2d 563 (10th Dist.), citing Jackson v. Butler Cty. Bd.
of Commrs., 76 Ohio App.3d 448, 453-454, 602 N.E.2d 363 (12th Dist.). “‘Bad faith’
connotes a dishonest purpose, conscious wrongdoing, intent to mislead or deceive, or the
breach of a known duty through some ulterior motive or ill will.” Strickland v. Tower
City Mgt. Corp., 8th Dist. Cuyahoga No. 71839, 1997 Ohio App. LEXIS 5802, at *3 (Dec.
24, 1997).
{¶21} Applying these definitions to the facts of this case, we find no evidence that
Cortes’s and Zarlenga’s actions were malicious, wanton, reckless, or in bad faith. {¶22} In their motion for summary judgment, Cortes and Zarlenga, relying on their
affidavits and the affidavits of patrol officer Cindy Pivarnik and Sergeant George Peters,
as well as the depositions of appellant Wingfield, his brother Derek, and Sergeant Peters,
presented the following facts relating to the alleged incident.
{¶23} On the evening of July 30, 2011, Wingfield and six or seven other
individuals went to a bar on West 6th Street in Cleveland. At approximately 2:30 a.m.,
after a fight broke out in the bar, bar security and the police shut down the bar and had
everyone exit the bar. The fighting continued on the sidewalk outside the bar, however,
and soon escalated into a brawl.
{¶24} Peters, incident commander of the West 6th Street detail, and Cortes, a police
officer in the mounted police unit, were posted near the bar when the brawl broke out.
Zarlenga, then officer-in-charge of the mounted police unit, was posted approximately 100
yards away from the bar.
{¶25} Peters made his way toward the fight in order to break it up and clear the
crowd. As he approached the crowd, he was knocked to the ground near the curb by two
unidentified individuals who were running from the crowd. Cortes, who was near the
curb, saw Peters get knocked to the ground and believed that Peters may have hit his head
on the pavement. Concerned for Peters’s safety, Cortes rode his horse over to Peters in
order to protect him from the crowd.
{¶26} While he was on the ground, Peters saw a male, later identified as Wingfield,
get sucker punched on the side of his head and knocked to the ground near the legs of
Cortes’s horse. At no time did Peters see Cortes’s horse kick or stomp Wingfield while he was on the ground.
{¶27} Peters got up and appeared to be okay, so Cortes turned toward the street.
His horse momentarily lost its balance as it stepped off the curb. When the horse regained
its balance, Cortes turned toward the crowd and saw Wingfield, who appeared to be
unconscious, lying on the ground. Cortes blew his whistle to alert Zarlenga that he
needed help, and Zarlenga began riding his horse toward the area.
{¶28} Peters went over to Wingfield, and when Wingfield came to, Peters asked him
if he was injured and needed medical assistance. Wingfield said he did not need assistance
and asked Peters what had happened. As Peters tried to assist him, Wingfield’s brother
Derek and an unknown female came over to Wingfield, and Derek said “that’s my brother,”
and dragged him away. Fearing that Wingfield needed medical attention, Peters tried to
stop them from leaving, but they left the scene. By the time Zarlenga reached the area, the
crowd had dispersed.
{¶29} A few minutes later, Peters saw Wingfield, Derek, and the unknown female
walking back to the area. They were yelling and, according to Peters, it looked like they
wanted to fight with some people, including the individual who had sucker punched
Wingfield. Peters told them to leave, and they left the area.
{¶30} Patrol officer Cindy Pivarnik, who was assigned to the West 6th area on July
31, 2011, and was across the street from the bar, saw the fight and subsequently observed
two males, later identified as Wingfield and his brother Derek, walking down West 6th
Street and yelling, “This is bullshit! The police don’t care, but we’ll handle it!
Somebody’s gonna get f***** up!” Pivarnik and her partner followed Wingfield and Derek from a distance until they saw them arrive at a parking lot and drive away.
{¶31} On August 3, 2011, Wingfield filed an injury-to-person report regarding the
alleged incident on July 31, 2011. Zarlenga was ordered to investigate the allegations.
He obtained statements from Cortes, Peters, and Pivarnik and unsuccessfully attempted to
obtain surveillance video of the incident. Zarlenga contacted Wingfield at the telephone
number Wingfield had provided on the injury report but Wingfield never responded to
Zarlenga’s telephone message. As a result of the information he obtained from the
officers and Wingfield’s lack of response, Zarlenga closed the investigation.
{¶32} Construing this evidence in a light most favorable to Wingfield, which we
are required to do, we find nothing to suggest that Cortes’s and Zarlenga’s actions were
malicious, wanton, reckless, or in bad faith. The evidence merely established the
following regarding the police officers’ actions: a large fight broke out at approximately
2:30 a.m. in front of a bar on West 6th Street in Cleveland. When Peters arrived on the
scene to help break up the fight, he was knocked to the ground by two unidentified males.
Cortes saw Peters get knocked to the ground and, concerned for his safety, rode his horse
over to Peters to make sure he was okay. After verifying that Peters was not hurt, Cortes
returned to his police duties. Zarlenga did not appear on the scene until the crowd had
disbursed.
{¶33} In his brief in opposition to the motion for summary judgment, Wingfield
asserted there was a question of fact requiring denial of the summary judgment motion
because both he and Derek testified in deposition that he was “trampled” and kicked in the
head by police horses during the fight. Even accepting this version of the alleged incident as true, Wingfield presented no evidence whatsoever that Cortes and Zarlenga
intentionally tried to injure him; that Cortes knew, or should have known, that riding over
to Peters would create an unnecessary risk of harm to Wingfield; or that Cortes and
Zarlenga acted in bad faith. Because there was no evidence their actions were malicious,
wanton, reckless, or in bad faith, Cortes and Zarlenga are subject to immunity under R.C.
2744.03(A)(6), and therefore, the trial court properly granted summary judgment on
Wingfield’s claims against them.
{¶34} Finally, we reject Wingfield’s argument that the trial court’s judgment
granting summary judgment denied him “equal protection of the exception carved out in
R.C. 2744.02(B)(1), as there is no rational basis to allow liability in the case of a car being
driven and to deny it in the case of a horse being ridden, when both are capable of causing
severe injury or death.” It is well established that a party cannot raise a constitutional
issue for the first time on appeal. See State v. Awan, 22 Ohio St.3d 120, 489 N.E.2d 277
(1986), syllabus (“Failure to raise at the trial court level the issue of the constitutionality of
a statute or its application, which issue is apparent at the time of trial, constitutes a waiver
of such issue and a deviation from this state’s orderly procedure, and therefore need not be
heard for the first time on appeal.”) Wingfield did not raise the equal protection issue in
the trial court and, accordingly, has waived it for purposes of appeal.
{¶35} The first and second assignments of error are overruled.
{¶36} Judgment affirmed.
It is ordered that appellees recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate be sent to said court to carry this judgment into
execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, JUDGE
LARRY A. JONES, SR., P.J., and TIM McCORMACK, J., CONCUR