text:
    STATE of Ohio, Plaintiff-Appellee v. Todd E. WHITE, Jr., Defendant-Appellant
    NO. 17 CO 0003
    Court of Appeals of Ohio, Seventh District, Columbiana County.
    Dated: March 30, 2018
    Atty. Robert Herron, Columbiana County Prosecutor, Atty. John E. Gamble, Assistant Prosecuting Attorney, 105 South Market Street, Lisbon, Ohio 44432, For Plaintiff-Appellee
    Atty. Timothy Young, Ohio Public Defender, Atty. Terrence K. Scott, Assistant State Public Defender, 250 East Broad Street, 14th Floor, Columbus, Ohio 43215, For Defendant-Appellant
   JUDGES: Hon. Cheryl L. Waite, Hon. Gene Donofrio, Hon. Carol Ann Robb

OPINION

WAITE, J.

{¶ 1} Appellant, Todd E. White, Jr., appeals the Columbiana County Common Pleas Court's decision denying his suppression motion. The issue cited by Appellant on appeal is whether the trial court erred when it held that Appellant's arrest for driving under suspension, an unclassified misdemeanor that specifically prohibits the imposition of a jail sentence, did not violate Appellant's Article I, Section 14, Ohio Constitutional protections against warrantless arrests and improper search and seizure. Appellant contends that, as such protection already exists for minor misdemeanors which do not require a jail sentence, we should extend the same protection for unclassified misdemeanors that specifically prohibit the imposition of a jail sentence. For the reasons expressed below, we conclude that the trial court erred in denying Appellant's motion to suppress based on the arresting officers' failure to provide Appellant with his Miranda warnings before interrogating him when that improper interrogation led to Appellant disclosing contraband he had hidden in his shoe. Accordingly, Appellant's assignment of error has merit. The judgment of the trial court is reversed and Appellant's conviction and sentence are vacated. This matter is remanded to the trial court for further proceedings according to law.

Factual and Procedural History

{¶ 2} On May 18, 2015, Officer Christopher Davis ("Davis") was patrolling a neighborhood known for drug activity when he noticed Appellant's car leave the home of a known drug dealer. Davis followed Appellant and noticed that he made a right turn without signaling. Appellant made another right turn approximately 50 feet farther into a private drive after signaling. Davis then activated his lights and stopped Appellant's car in the driveway.

{¶ 3} At two suppression hearings, Davis provided slightly different accounts regarding what transpired next. At the April 6, 2016 suppression hearing, Davis testified that as he approached Appellant's vehicle, Appellant opened the driver door and began exiting the vehicle. At that time Davis observed a baggie containing a white substance on the bottom door frame near the seat. Davis thought Appellant was trying to destroy evidence and therefore drew his weapon and ordered Appellant out of the car. At the hearing on the motion to reconsider the motion to suppress, Davis testified that as he approached Appellant's car, he observed Appellant reaching down to the floor of the vehicle which prompted him to draw his weapon and order Appellant out of the vehicle. What did not change was Davis' testimony at both hearings that after Appellant exited the vehicle, Davis placed him in handcuffs and patted him down for weapons. No weapons were discovered. While handcuffed, Davis asked Appellant what the white substance was, and Appellant responded that it was "cut" used to increase the volume of a drug. The substance was field tested and was negative for narcotics. Davis testified he detected the odor of marijuana in the vehicle. Appellant remained in handcuffs and when Officer Briggs, a backup officer, arrived, Appellant was transferred to Briggs. Even though Appellant had already undergone a pat-down search and was handcuffed, prior to placing Appellant in the cruiser, Briggs asked Appellant: "Is there anything you have on you illegal or do I need to know about." (4/6/16 Tr., p. 26.) At that point, Appellant informed Briggs that he had heroin in his right shoe. Briggs removed a baggie of substance from Appellant's shoe which later tested positive for heroin.

{¶ 4} Briggs placed Appellant in the cruiser, and Davis utilized his K9 to sniff Appellant's car. The dog alerted on the area where the baggie of white substance had been, as well as in the center console in which the officers discovered a baggie of marijuana. At both suppression hearings, Davis admitted that at no time did he read Appellant his Miranda rights. Briggs also testified that he never read Appellant his Miranda rights. The written report also provides no indication that Appellant ever received his Miranda rights.

{¶ 5} Davis testified that when he called in Appellant's driver's license information to the dispatcher, he was informed that Appellant's license was under suspension. Davis testified that he was not informed by dispatch whether Appellant's suspension was an arrestable offense. Despite this lack of knowledge, he arrested Appellant for driving under suspension. Appellant was taken to the police station and, later, to jail. Davis returned to the police station. Davis testified at the second suppression hearing that it was only then, when he had an opportunity to examine the Law Enforcement Automated Data System ("LEADS") printout of Appellant's driving record, that he determined that Appellant's driving suspension was not an arrestable form of the offense. At some point, Appellant was issued citations for violation of the financial responsibility law suspension in violation of R.C. 4510.16 (which was subsequently amended to a failure to reinstate his license in violation of R.C. 4510.21, an unclassified misdemeanor); failure to use a signal in violation of R.C. 4511.39, a minor misdemeanor; and possession of marijuana in violation of R.C. 2925.11(C)(3), also a minor misdemeanor.

{¶ 6} Relevant to the current appeal, on July 21, 2015, Appellant was indicted on one count of possession of heroin in violation of R.C. 2925.11(A), a felony of the third degree. Appellant filed a motion to suppress on March 9, 2016, seeking to suppress all evidence recovered from Appellant and his vehicle. A hearing was held on the motion on April 6, 2016. Testimony was provided by both Davis and Briggs. The trial court took the matter under advisement and in a judgment entry dated April 27, 2016, the trial court denied Appellant's motion. The court held that, although neither officer had read Appellant his Miranda rights, under the "inevitable discovery doctrine" there was a reasonable probability that law enforcement would have recovered the heroin in Appellant's shoe when he was taken to jail following his arrest for driving under suspension. (4/27/16 J.E., p. 6.)

{¶ 7} Appellant filed a motion to reconsider the denial of his motion to suppress on May 11, 2016, arguing that the heroin would not have inevitably been discovered because the citation issued to Appellant for driving under suspension pursuant to R.C. 4510.16, which was later amended to a violation of R.C. 4510.21, failure to reinstate, occurred more than three years after Appellant's last conviction for driving under suspension. Thus, it was an unclassified misdemeanor which specifically prohibited the imposition of a jail term and Appellant was not subject to any arrest.

{¶ 8} A hearing was held on Appellant's motion to reconsider on August 24, 2016. It was at this hearing where Davis' testimony deviated from his testimony at the previous hearing. Notably, instead of testifying that he observed the baggie of white substance, causing him to draw his weapon, order Appellant out of the vehicle and place him in handcuffs, he testified that he noticed Appellant was reaching around on the floor of the vehicle. Moreover, although Davis readily admitted that he never read Appellant his Miranda rights and he did not think Briggs had either, he indicated at the second hearing that he was unsure if Appellant was handcuffed when backup arrived. Davis also testified that he would have arrested Appellant on site for DUS even if he did not know whether Appellant had been convicted of an arrestable offense. Davis was unclear whether he wrote the citation for driving under suspension at the scene or at the station after he checked Appellant's license history. Davis maintained that he was unaware Appellant had not been convicted of an arrestable offense until Appellant had been taken in handcuffs to jail and Davis returned to the station to review Appellant's LEADS printout. Davis acknowledged that most driving under suspension offenses are not arrestable, and that he did not always arrest offenders for driving under suspension, but arrested Appellant despite failure to find any weapons or contraband after the investigative pat down.

{¶ 9} In a judgment entry dated August 29, 2016, the trial court held that when Davis learned Appellant was driving with a suspended license, Davis had probable cause to immediately arrest Appellant at the scene for driving under suspension. Citing State v. Taylor, 2d Dist. No. 25169, 2013-Ohio-814, 2013 WL 871509 as factually analogous to the instant case, the trial court held that the existence of probable cause prior to arrest was key. The court held that Davis had probable cause to arrest Appellant based on the LEADS report, not on the discovery of the heroin. The trial court concluded that since Davis had probable cause to arrest and Appellant would be searched incident to his arrest, the heroin hidden in his shoe would have been lawfully discovered. (8/29/16 J.E., p. 4.)

{¶ 10} On November 14, 2016, Appellant pleaded no contest to possession of drugs under R.C. 2925.11(A), a felony of the third degree. The trial court sentenced Appellant to a term of 18 months in prison and a twelve-month driving license suspension. Appellant sought a stay of execution of judgment which was granted by the trial court in a judgment entry dated January 30, 2017. This timely appeal followed.

ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED WHEN IT HELD THAT AN ARREST MADE FOR A VIOLATION OF AN UNCLASSIFIED MISDEMEANOR, A NON-ARRESTABLE OFFENSE, DOES NOT VIOLATE ARTICLE I, SECTION 14 OF THE OHIO CONSTITUTION. (AUGUST 24, 2016 HEARING TR. P. 13; AUGUST 29, 2016 JUDGMENT ENTRY; MAY 11, 2016 CASE NO. 2015C12262 MOTION TO RECONSIDER DENIAL OF MOTION TO SUPPRESS; MUNICIPAL COURT OF COLUMBIANA CASE NO. 15CNB947, TRAFFIC CITATION NO. 1121; MAY 11, 2016 CASE NO. 2015CR262 MOTION TO RECONSIDER DENIAL OF MOTION TO SUPPRESS; EAST LIVERPOOL MUNICIPAL COURT COLUMBIANA COUNTY, MINOR MISDEMEANOR CITATION NO. 15CNB951; AUGUST 29, 2016 JUDGMENT ENTRY).

{¶ 11} An appeal of a trial court's ruling on a motion to suppress presents mixed questions of law and fact. As an initial matter, we note that a hearing on a motion to suppress evidence requires the trial court to assume the role of trier of fact and the trial court is in the best position to resolve questions of fact and evaluate the credibility of the witnesses. State v. Mills, 62 Ohio St.3d 357, 366, 582 N.E.2d 972 (1992). Therefore, the credibility of witnesses during a suppression hearing is a matter for the trial court. An appellate court should not disturb the findings of the trial court on issues of credibility and must accept those findings of fact if they are supported by competent, credible evidence. State v. Fanning, 1 Ohio St.3d 19, 437 N.E.2d 583 (1982). In accepting those facts as true, an appellate court then must independently determine, without deference to the conclusion of the trial court, whether the facts satisfy the applicable legal standard. State v. McNamara , 124 Ohio App.3d 706, 707 N.E.2d 539 (4th Dist.1997).

{¶ 12} The Fourth Amendment of the United States Constitution, applied to the states through the Fourteenth Amendment, and Section 14, Article I of the Ohio Constitution, guarantees the right of the people to be free from unreasonable searches and seizures by government. State v. Orr, 91 Ohio St.3d 389, 391, 745 N.E.2d 1036 (2001). A valid search must be supported by a warrant or based on a recognized exception to the warrant requirement. State v. Ambrosini , 7th Dist. Nos. 14 MA 155, 14 MA 156, 2015-Ohio-4150, 2015 WL 5814006, ¶ 8, citing Katz v. U.S. , 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).

{¶ 13} Although the Fourth Amendment does not explicitly provide that violations of its provisions will result in suppression of evidence obtained as a result of any violation, the United States Supreme Court has held that the exclusion of that evidence is an essential part of the Fourth Amendment. This is known as the exclusionary rule. See Weeks v. United States , 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914) ; Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). Evidence obtained in violation of these constitutional provisions will generally be prohibited from trial under the exclusionary rule.

{¶ 14} The initial burden of demonstrating that there was a warrantless search is on the defendant and, once established, the burden of persuasion falls on the state to show the validity of the search. Xenia v. Wallace, 37 Ohio St.3d 216, 524 N.E.2d 889 (1988). The state must show that either there was a warrant or that there was justification for a warrantless search. State v. Rodriquez , 66 Ohio App.3d 5, 12, 583 N.E.2d 384 (6th Dist.1990). It is undisputed in the instant case that a warrantless search of Appellant took place. The state and the trial court have characterized the instant search in terms of one of the exceptions to the requirement for a warrant, a search incident to a lawful arrest.

Search Incident to a Lawful Arrest

{¶ 15} Police may conduct a warrantless search to some extent incidental to a proper arrest. Weeks , supra. The prohibition against illegal search and seizure in the Fourth Amendment is not violated by a valid search incident to an arrest in order for the police to seize any weapons or to preserve evidence. Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009). In such a search, police may search the passenger compartment of a vehicle when they are arresting the occupant of that vehicle only if it is reasonable to believe that the arrestee may access the vehicle at the time of the search or that it contains evidence of the offense constituting the arrest. Gant at 1723-1724. The actual arrest need not precede the search, as long as the fruits of the search are not used to support probable cause for the arrest. Rawlings v. Kentucky , 448 U.S. 98, 111, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980).

{¶ 16} Appellant was arrested and cited for violating R.C. 4510.16, which states, in part:

(D) Whoever violates division (A) of this section is guilty of driving under financial responsibility law suspension or cancellation and shall be punished as provided in divisions (D) to (I) of this section. Whoever violates division (B) of this section is guilty of driving under a nonpayment of judgment suspension and shall be punished as provided in divisions (D) to (I) of this section.
(1) Except as otherwise provided in division (D)(2) of this section, the offense is an unclassified misdemeanor. When the offense is an unclassified misdemeanor, the offender shall be sentenced pursuant to sections 2929.21 to 2929.28 of the Revised Code, except that the offender shall not be sentenced to a jail term; the offender shall not be sentenced to a community residential sanction pursuant to section 2929.26 of the Revised Code [.] * * *
(2) If, within three years of the offense, the offender previously was convicted of or pleaded guilty to two or more violations of this section, or any combination of two violations of this section or section 4510.11 or 4510.111 of the Revised Code, or a substantially equivalent municipal ordinance, the offense is a misdemeanor of the fourth degree.

{¶ 17} After arrest, Appellant was also cited for failure to signal and possession of marijuana, both minor misdemeanor nonarrestable offenses. It should be noted that Appellant's arrest for a violation of R.C. 4510.16 was later amended to R.C. 4510.21, a failure to reinstate, which occurred more than three years after Appellant's last conviction for driving under suspension. Neither of these violations are arrestable offenses.

{¶ 18} There is no dispute that the original traffic stop in this case was for Appellant's failure to use a signal when making a right turn, although Davis did not immediately pull Appellant over for this offense and waited until Appellant made a subsequent legal right turn into a driveway utilizing his signal. Ultimately, Appellant was arrested for driving under suspension. Appellant is correct that he could not be properly arrested for the unclassified misdemeanor traffic violation of driving under suspension unless the offense had occurred within three years of his last conviction for the offense. Appellant also argues that, as it was not an arrestable offense, the arrest was improper. If he was improperly arrested, there could not have been a valid search incident to an arrest. The police could not conduct a valid search incident to an arrest when the police could not have properly arrested him based on the relevant statute.

{¶ 19} The state's argument relies on the assertion that Davis had reasonable cause to believe Appellant could be placed under arrest for driving under suspension. The only evidence of record is that Davis had no information regarding the nature of Appellant's suspension, so he possessed reasonable cause to arrest Appellant. The state urges that Davis could not obtain additional information regarding Appellant's driving under suspension charge until Davis returned to the station to personally review the LEADS report himself regarding Appellant's license history.

{¶ 20} Davis was a fifteen-year veteran of the force and Briggs was a sixteen-year veteran. According to Davis' testimony at the second suppression hearing, he was aware that most driving under suspension violations do not require an arrest. (8/24/16 Tr., p. 5.) Moreover, when cross-examined, Davis testified that he inquired of Appellant what was contained within the baggie and was told it was "cut" used to increase the volume of drugs. This occurred after Appellant was handcuffed and patted down for weapons. Contrary to the holding in Gant, Appellant posed no threat that he could obtain a weapon or of destroying evidence at that point. However, once Briggs arrived and Appellant, who remained in handcuffs, was under Briggs' supervision, Davis proceeded to conduct a canine search of Appellant's vehicle, recovering marijuana. While this was going on, Briggs was interrogating Appellant about whether he had any contraband on his person. Again, this was after Appellant had been subjected to a pat down and was placed in handcuffs. Both officers acknowledged on more than one occasion during their testimony that Appellant had never been read his Miranda warnings. Both claimed that Appellant was not under arrest at this point, but was merely being detained pending investigation.

{¶ 21} The state and the trial court rely heavily on State v. Taylor as analogous to this case. In Taylor , the Second District held that a pat-down search incident to an arrest was an appropriate, lawful search incident to an arrest as the defendant had told the officer he was driving but had no license, giving the officer probable cause to arrest and conduct the search. The trial court specifically noted that the Second District held, "when conducting a search incident to arrest, police are not limited to a pat-down for weapons, but may conduct a full search of the arrestee's person for contraband or evidence of a crime." (8/29/16 J.E., p. 3.)

{¶ 22} The defect in reliance on Taylor is readily apparent. First, Davis had already completed a pat down of Appellant for weapons and found no weapons or contraband of any nature on Appellant, and had no reason to believe Appellant had any evidence on his person. The state presents no evidence to support any additional search of Appellant's person for weapons or contraband, and the second search did not occur until Appellant revealed that he had hidden the heroin in his shoe in response to Briggs' questioning of Appellant at the scene while Appellant was in handcuffs.

{¶ 23} Second, Appellant was handcuffed and restrained for almost the entirety of the stop and was certainly not free or able to leave. Pursuant to Gant, supra, a warrantless search of Appellant's vehicle was not lawful when Appellant was restrained and did not present a threat of obtaining a weapon or destruction of evidence. Despite the officers' assertions to the contrary, this record reveals that Appellant was placed under arrest soon after his stop. He was handcuffed immediately after exiting his vehicle and remained so during the duration of the stop. Appellant was never read his Miranda warnings, yet Davis and Briggs both proceeded to question Appellant while in restraints. This questioning was the only thing that led to the discovery of the heroin in Appellant's shoe. A suspect's waiver of his right against self-incrimination must be made voluntarily, knowingly and intelligently. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The state bears a heavy burden to demonstrate the accused waived his right against self-incrimination. Miranda at 475, 86 S.Ct. 1602. A criminal suspect cannot be deemed to have waived his right to silence unless the authorities have first informed him of that right as that is the "threshold requirement for an intelligent decision as to its exercise." Id. at 468, 86 S.Ct. 1602. It is undisputed that Appellant was never informed of his right against self-incrimination, yet the officers at the scene of the traffic stop proceeded to interrogate Appellant. This interrogation was the only thing that lead to the recovery of the evidence at issue.

{¶ 24} Third, there is no certainty that, absent Briggs' interrogation of Appellant, the heroin in Appellant's shoe would have been recovered. The trial court and the state rely on the inevitable discovery doctrine and claim that while being processed at the jail as part of Appellant's arrest, the heroin would certainly have been recovered. This begs the question regarding the validity of Appellant's arrest. The state has taken the position that Davis was unable to ascertain whether Appellant's driving suspension was an arrestable offense until he was able to personally review the LEADS report at the station and to require Davis to possess that knowledge at the time of the arrest requires Davis to have "proof beyond a reasonable doubt" that Appellant was subject to arrest. This statement is misguided. R.C. 4510.16 does not contain a presumption of arrest, nor does the caselaw support that contention. On the contrary, the statute specifically prohibits an arrest and Fourth Amendment jurisprudence maintains the right to be free from illegal searches and seizures without probable cause. Davis was not imbued with probable cause to arrest merely because he was unsure whether Appellant could be arrested for driving under suspension, particularly, as he acknowledged at the hearing, since most driving under suspension offenses do not require an arrest. Moreover, with full acknowledgement that Appellant was never read his Miranda rights, both experienced officers proceeded to question Appellant, and only then obtained the evidence which is the fruit of those illegal interrogations. It is apparent from these facts that, while there is no bright line to determine the exact moment of Appellant's arrest, both officers treated Appellant as an arrestee at least as of the moment it was determined that he had a driving under suspension violation on his record, and most notably, failed entirely to Mirandize Appellant.

{¶ 25} Appellant's arrest for driving under suspension is very troubling as it is clear that Davis had no justification for arresting Appellant for any of the citations issued, including driving under suspension. The facts of the instant case do not fit into any of the exceptions to the warrant requirement, including a lawful search incident to an arrest. The offense for which Appellant was cited specifically prohibits jail time and the state's assertion that this information was unknowable at the scene does not provide the probable cause necessary to initiate an arrest. At most, the officers could detain Appellant pending more investigation into the nature of his driving under suspension violation. Appellant's initial pat down, which revealed no contraband, may have been proper once the officers found it necessary to detain Appellant in order to investigate the nature of his suspension violation. Based on this record, however, we conclude the officers did not have probable cause to arrest Appellant or to further search Appellant or his vehicle absent a warrant. We are also troubled that two experienced police officers conducted a traffic stop wherein, for almost the entirety of the stop, Appellant was restrained in handcuffs while both officers interrogated him with full acknowledgment that Miranda warnings were never administered by either officer. This interrogation was unlawful based on the record before us, hence Appellant's statement about the heroin in his shoe and the heroin itself become the fruit of an illegal search.

{¶ 26} Appellant's assignment of error is sustained. The judgment of the trial court overruling Appellant's motion to suppress is reversed and the conviction and sentence of the trial court are vacated. This matter is remanded to the trial court for further proceedings according to law and consistent with this Court's Opinion.

Donofrio, J., concurs.

Robb, P.J., concurs.


source: Caselaw Access Project

author: TIM McCORMACK, J.:

license: Public Domain

text:
    STATE of Ohio, Plaintiff-Appellant v. Rufus JACKSON, Defendant-Appellee
    No. 105997
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: April 5, 2018
    Michael C. O'Malley, Cuyahoga County Prosecutor, By: Christopher D. Schroeder, Assistant County Prosecutor, Justice Center, 8th Floor, 1200 Ontario Street, Cleveland, OH 44113, ATTORNEYS FOR APPELLANT
    Mark A. Stanton, Cuyahoga County Public Defender, By: Erika B. Cunliffe, Assistant Public Defender, 310 Lakeside Avenue, Ste. 200, Cleveland, OH 44113, ATTORNEYS FOR APPELLEE
    BEFORE: McCormack, J., E.A. Gallagher, A.J., and S. Gallagher, J.
    JOURNAL ENTRY AND OPINION
   TIM McCORMACK, J.:

{¶ 1} Plaintiff-appellant, the state of Ohio ("the state") appeals from the trial court's dismissal with prejudice of its case against defendant-appellee Rufus Jackson ("Jackson"). For the reasons that follow, we affirm.

Procedural and Substantive History

{¶ 2} This case arises out of an incident that occurred on March 3, 2006. On that date, Jackson shot Roy Moorer multiple times in the chest and left arm. As a result, Moorer was paralyzed from the waist down.

{¶ 3} On March 15, 2006, Jackson was indicted on two counts of felonious assault, both with one- and three-year firearm specifications, in Cuyahoga C.P. No. CR-06-478104-A.

{¶ 4} While Jackson was in jail pending resolution of that case, he was indicted in Cuyahoga C.P. No. CR-06-480135-A for assault on a peace officer and vandalism for an incident that had occurred in the Cuyahoga County Jail.

{¶ 5} Jackson initially pleaded not guilty to all charges. Subsequent negotiations resulted in a plea agreement that resolved both cases. On June 22, 2006, Jackson pleaded guilty to one count of felonious assault, together with the three-year firearm specification in CR-06-478104-A, as well as to an amended count of attempted assault in CR-06-480135-A. The remaining counts in both cases were dismissed.

{¶ 6} On July 13, 2006, the trial court sentenced Jackson to eight years on the felonious assault count, to be served consecutively to three years for the gun specification. The court also sentenced Jackson to a consecutive six-month term for attempted assault.

{¶ 7} On February 8, 2016, Moorer died. The autopsy report listed his cause of death as "acute bronchopneumonia" due to "decubitus ulcers with osteomyelitis and sepsis," "paraplegia with neurogenic bladder and end stage renal disease," and "multiple gunshot wounds of the trunk and left arm with spinal injuries."

{¶ 8} On June 7, 2016, a grand jury indicted Jackson in the underlying case, Cuyahoga C.P. No. CR-16-605802-A, on two counts of murder for Moorer's death, each with one- and three-year firearm specifications.

{¶ 9} On May 25, 2017, Jackson filed a motion to dismiss the indictment pursuant to State v. Carpenter , in which the Ohio Supreme Court held that when the state accepts a negotiated guilty plea to one offense, and the victim later dies due to injuries sustained from that offense, it cannot prosecute the defendant for murder unless it expressly reserved the right to do so. State v. Carpenter , 68 Ohio St.3d 59, 623 N.E.2d 66 (1993). The state filed a brief in opposition.

{¶ 10} On June 25, 2017, the trial court held a hearing on Jackson's motion to dismiss. The trial court granted Jackson's motion and dismissed the case with prejudice.

{¶ 11} The state timely appealed the dismissal, presenting three assignments of error for our review.

Law and Analysis

Assignment of Error No. 1

{¶ 12} In its first assignment of error, the state argues that the trial court erred in dismissing the indictment against Jackson. Specifically, the state argues that the trial court read an implied term of immunity from future prosecution into the 2006 plea agreement, despite an express disclaimer of any additional terms not stated on the record. The state alleges that the trial court further erred by placing the burden on the state to prove that Jackson did not subjectively believe this implied term to be part of the agreement. The state is essentially relying on contract principles to argue that the Ohio Supreme Court's holding in Carpenter was incorrect.

{¶ 13} Carpenter is premised on the idea that plea agreements are "an essential and necessary part of the administration of justice." Carpenter , 68 Ohio St.3d 59, 623 N.E.2d 66, citing Santobello v. New York , 404 U.S. 257, 261, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). "The holding in Carpenter is essentially a synthesis of contract and criminal law in a particular factual setting." State v. Zima , 102 Ohio St.3d 61, 2004-Ohio-1807, 806 N.E.2d 542, ¶ 11. Plea bargains are contractual in nature and thus "subject to contract-law standards." State v. Dye , 127 Ohio St.3d 357, 2010-Ohio-5728, 939 N.E.2d 1217, citing Baker v. United States , 781 F.2d 85, 90 (6th Cir. 1986). Beyond their basis in contract law, though, plea agreements exist in a criminal context. Therefore, the plea phase of the criminal process " 'must be attended by safeguards to insure the defendant what is reasonably due in the circumstances.' " Carpenter at 60, 623 N.E.2d 66 quoting Santobello at 262, 92 S.Ct. 495.

{¶ 14} The state argues that because the 2006 plea agreement did not contain any terms containing an explicit reference to future prosecutions for the March 3, 2006 shooting, the trial court violated contract principles by reading an implied term of immunity into the plea agreement. However well-founded in contract law this argument may be, it is at odds with the Supreme Court's holding in Carpenter .

{¶ 15} The Ohio Supreme Court has unambiguously held that the state must "expressly reserve the right to file additional charges on the record at the time of the defendant's plea" if it wishes to indict a defendant for murder after the court has accepted a negotiated guilty plea to a lesser offense and the victim later dies of injuries sustained in the crime. Carpenter at 62, 623 N.E.2d 66. Requiring the state to reserve the right to initiate future prosecutions "places no unreasonable burden on prosecutors and ensures that defendants are fully aware of the consequences of their guilty pleas." Dye at 363, 939 N.E.2d 1217.

{¶ 16} The state further notes that Jackson responded "no" when the trial court asked him: "Did anyone make any threats or promises to get you to plead guilty here today, other than what has been stated in open court and on the record?"

{¶ 17} According to the state, this exchange precludes Jackson from relying on Carpenter , 68 Ohio St.3d 59, 623 N.E.2d 66, because he expressly disclaimed that there were any additional terms of the plea agreement. We disagree. The above exchange is a required part of a court's plea colloquy under Crim.R. 11 to determine that a defendant's plea is entered knowingly, intelligently, and voluntarily. The state's interpretation would render Carpenter inapplicable to most, if not all, guilty pleas. This would effectively render the Ohio Supreme Court's decision in Carpenter meaningless.

{¶ 18} Finally, the state asserts that it should not have been required to prove that Jackson did not believe that his guilty plea would end criminal prosecution based on the March 3, 2006 shooting. We disagree. Such an assertion asks this court to ignore both the constitutional requirement that a defendant understand the consequences of his guilty plea and Ohio's legal precedent. Therefore, the state's first assignment of error is without merit.

Assignment of Error No. 2

{¶ 19} In its second assignment of error, the state argues that the trial court erred in applying Carpenter here without any evidence in the record demonstrating that the victim's death from his or her injuries was foreseeable at the time of the plea.

{¶ 20} In support of this argument, the state interprets both Carpenter, 68 Ohio St.3d 59, 623 N.E.2d 66, and Dye, 127 Ohio St.3d 357, 2010-Ohio-5728, 939 N.E.2d 1217, as requiring that the victim's death from his injuries be foreseeable at the time of the plea. In this case, according to the state, there was no evidence that the victim was likely to die from his injuries at the time of the plea. Despite the state's interpretation of the case law, neither Carpenter nor Dye establishes an evidentiary threshold a case must meet in order for the victim's death to be foreseeable, and we decline to create one here. The court in Carpenter commented that the state had actual knowledge of the victim's condition and "knew death was possible" at the time of the plea agreement. Carpenter at 61, 623 N.E.2d 66. We do not interpret this statement as imposing these preconditions in order for the holding in Carpenter to apply. Even if the requirement of Carpenter was dependent on a factual assessment of the foreseeability of the victim's death, we do not agree that it was not at all foreseeable that the victim here would die from his injuries. In this case, Moorer suffered grave injuries, sustaining multiple gunshot wounds that resulted in paralysis. Like the victim in Dye , Moorer died as a result of complications from his paralysis. Because we find no meaningful distinction between this case and Carpenter or Dye , the state's second assignment of error is without merit.

Assignment of Error No. 3

{¶ 21} In its third and final assignment of error, the state argues that if the 2016 indictment did breach the terms of Jackson's plea agreement, the trial court erred by failing to exercise discretion to choose between ordering specific performance of the terms of the plea and allowing the defendant to withdraw his plea. The state's argument essentially asks this court to abandon the precedent established in Carpenter and Dye , and we again decline to do so.

{¶ 22} The state cites several cases for the proposition that when the state breaches a plea agreement, the remedy is either specific performance of the plea agreement or allowing the defendant to withdraw his plea. We need not dispute the reasoning underlying this proposition, because we find it inapplicable to this case.

{¶ 23} Here, unlike the cases cited by the state, the state's breach of the 2006 plea agreement took the form of a separate indictment arising out of the shooting of Moorer. The state alleges that allowing Jackson to withdraw his plea is the "fairer" option in this case. We disagree. Jackson has served 11 years in prison for felonious assault, pursuant to the terms of his 2006 plea agreement. Allowing him the opportunity to vacate his plea now would do nothing to remedy the state's breach.

{¶ 24} Further, the state's arguments against specific performance as a remedy are merely a reiteration of the arguments from its first assignment of error, and we therefore decline to address them again here.

{¶ 25} Because we find no merit to the state's assignments of error, we affirm the trial court's decision to dismiss the indictment against Jackson.

EILEEN A. GALLAGHER, A.J., and SEAN C. GALLAGHER, J., CONCUR


author: FRANK D. CELEBREZZE, JR., J.:

text:
    Andrew DIEMER, Executor, etc., Plaintiff-Appellant v. MINUTE MEN, INC., et al., Defendants-Appellees
    No. 105398
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: April 5, 2018
    ATTORNEYS FOR APPELLANT Patrick J. Quallich, Christopher A. Holecek, Sarah Nemastil, Wegman, Hessler & Vanderburg, 6055 Rockside Woods Boulevard, Suite 200, Independence, Ohio 44131
    ATTORNEYS FOR APPELLEES For Minute Men, Inc. David M. Ondrey, Thrasher Dinsmore & Dolan, 100 7th Avenue, Suite 150, Chardon, Ohio 44024, Albert A. Giuliani, 323 West Lakeside Avenue, Suite 300, Cleveland, Ohio 44113, Abigail A. Greiner, Colleen A. Mountcastle, D. John Travis, Gallagher Sharp, L.L.P., Bulkley Building, 6th & 7th Floors, 1501 Euclid Avenue, Cleveland, Ohio 44115, John Spellacy, John J. Spellacy & Associates, Assistant City Prosecutor, 5555 Powers Boulevard, Parma, Ohio 44129
    For Cleveland Indians Baseball Company Limited Partnership J. Jaredd J. Flynn, Todd C. Hicks, Thrasher Dinsmore & Dolan, 100 7th Avenue, Suite 150, Chardon, Ohio 44024
    For Ronald Hillman Ronald Hillman, pro se, Mansfield Correctional Institution, Inmate No. A672951, P.O. Box 788, Mansfield, Ohio 44901
    BEFORE: Celebrezze, J., E.A. Gallagher, A.J., and Kilbane, J.
    JOURNAL ENTRY AND OPINION
   FRANK D. CELEBREZZE, JR., J.:

{¶ 1} Appellant, Andrew Diemer, representative of the estate of Michaela Diemer, appeals the grant of summary judgment in favor of appellees, Minute Men, Inc. ("Minute Men"); and the Cleveland Indians Baseball Company, Inc., and the Cleveland Baseball Company Limited Partnership (collectively "CIB"). Andrew claims that the trial court erred in granting summary judgment because these companies owed a duty to Michaela, and the companies are independently liable for their negligent retention and promotion of Ronald Hillman to a supervisory position that he used to facilitate the rape and murder of Michaela. After a thorough review of the record and law, this court affirms in part, reverses in part, and remands.

I. Factual and Procedural History

{¶ 2} Minute Men, a staffing agency, was hired by CIB for facility cleaning services at Progressive Field. Minute Men provided cleanup crews and supervisors to clean the stands, fields, and a few other areas of Progressive Field after each game. During each home game, Dominic Sabetta, project manager for Minute Men, would receive a call from Thomas Evans, a supervisor for CIB, with the number of cleaners required. The number of workers depended on various factors including attendance and whether there were fireworks after the game. During the cleanup, Sabetta was in charge of these workers as the project manager. He had a managing assistant along with two supervisors that reported to him and his assistant. Two crew leaders reported to the supervisors and would often be tasked with specialized assignments such as cleaning the field or dugout of sunflower seed hulls.

{¶ 3} After Sabetta was informed of the number of cleaners required, he would open the office at Minute Men where people would gather in hopes of working in the clean up crew. He would select people and assign them numbers and badges. Those individuals would then report to the ballpark at a designated time and be placed into various cleanup crews. When there were not enough individuals that reported to the stadium, a Minute Men employee would sometimes drive to a nearby homeless shelter to recruit individuals to work.

{¶ 4} Ronald Hillman was living in a homeless shelter, and began working cleanup at the ballpark for Minute Men on opening day of the 2014 season. He showed himself to be a hard worker and was rewarded several times with a more desirable position running a backpack blower used during the cleanup process for CIB. At some point, a crew leader position became available. It is disputed who recommended Hillman for the position. Likely, Sabetta, or someone from Minute Men recommended Hillman for the position, and with Evans's approval, Hillman became a crew leader. He was issued a two-way radio and credentials identifying him as such.

{¶ 5} According to Evans's and Sabetta's testimony, a crew leader could not discipline a fellow cleaner, nor could a crew leader select which people would get chosen to work in the cleanup crew. Those decisions took place at Minute Men's office, rather than at the ballpark, and that responsibility was Sabetta's. However, a crew leader could select which individuals would work alongside the crew leader in a more desirable position. Also, the crew leaders could inform a supervisor or Sabetta that an individual was not working out, and that individual would not be invited back to work at the ballpark. Other testimony in the record indicates that crew leaders could select people to work for those individuals that just showed up at the gate during a game, rather than sign up at Minute Men's offices.

{¶ 6} Michaela was informed by a friend, Lisa Honeker, that she could make a little money by working in a cleanup crew at the ballpark. At the time, Michaela, a former nurse, was living in a homeless shelter. Michaela went with her friend to the ballpark the night of August 16, 2014, and sought to work in a cleanup crew. The two did not sign up at Minute Men's office. Honeker averred in an affidavit that Hillman selected Michaela to work in a crew where Hillman was the crew leader and directed her activities while working. According to Honeker, he showed particular interest in Michaela and was hitting on her. Michaela also worked the next night at the ballpark in a cleanup crew where she was again selected by Hillman to work in the park. After that shift, Hillman and Michaela left together in Michaela's car. The two spent some time at a downtown Cleveland casino the following night, and then Michaela was not seen again until her body was discovered in an abandoned house in Cleveland.

{¶ 7} Hillman was eventually arrested and charged with her rape and murder. In August 2015, he pled guilty to several charges, including rape and murder. He was sentenced to life in prison without the possibility of parole. Hillman had been previously convicted of rape and had been adjudicated a sexual predator prior to his employment with Minute Men.

{¶ 8} Andrew then filed suit against Hillman and Minute Men, asserting causes of action for wrongful death, survival, intentional and negligent infliction of emotional distress; and claims of assault, battery, and false imprisonment against Hillman. CIB was added later in an amended complaint.

{¶ 9} The case proceeded through discovery and appellees filed motions for summary judgment. In separate entries issued January 18, 2017, the trial court granted the appellees' motions for summary judgment. In each journal entry, the court also dismissed Andrew's claims against Hillman without prejudice for failure to prosecute. Andrew then filed the instant appeal, raising three errors for review:

I. The trial court erred, as a matter of law, in granting the motion for summary judgment filed by [Minute Men], as well as the motion for summary judgment filed by [CIB].
II. The trial court erred, as a matter of law, in failing to consider that Minute Men and [CIB] were directly and independently liable for their negligent retention and promotion of Hillman, separately from the doctrine of respondeat superior, which [Andrew] neither pleaded nor alleged in this case.
III. The trial court erred, as a matter of law, in holding that an employer, who knowingly retains and promotes to supervisor an adjudicated sexual predator with a history of committing violence against women, does not owe a duty of care to protect or warn a subordinate female employee from foreseeable harm posed by that supervisor after work hours.

II. Law and Analysis

A. Standard of Review

{¶ 10} Andrew's assigned errors all assert that the trial court erred in granting summary judgment and address only the negligence claims. Therefore, this court will address the negligence claims and the assigned errors together.

{¶ 11} Summary judgment under Civ.R. 56 provides for the expedited adjudication of matters where there is no material fact in dispute to be determined at trial. To obtain summary judgment, the moving party must show that "(1) there is no genuine issue of material fact; (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 when viewing evidence in favor of the nonmoving party, and that conclusion is adverse to the nonmoving party." Grafton v. Ohio Edison Co. , 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996), citing State ex rel. Cassels v. Dayton City School Dist. Bd. of Edn. , 69 Ohio St.3d 217, 219, 631 N.E.2d 150 (1994).

{¶ 12} The moving party has the initial responsibility of establishing its entitlement to summary judgment. Dresher v. Burt , 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264 (1996). "[I]f the moving party meets this burden, summary judgment is appropriate only if the nonmoving party fails to establish the existence of a genuine issue of material fact." Deutsche Bank Natl. Trust Co. v. Najar , 8th Dist. Cuyahoga No. 98502, 2013-Ohio-1657, 2013 WL 1791372, ¶ 16, citing Dresher at 293, 662 N.E.2d 264.

{¶ 13} Once a moving party demonstrates no material issue of fact exists for trial and the party is entitled to judgment, it is the nonmoving party's duty to come forth with argument and evidence that demonstrates a material issue of fact does exist that would preclude judgment as a matter of law. Id.

B. Negligent Promotion

{¶ 14} Andrew asserted negligence claims against Minute Men and CIB. Generally, a successful negligence claim requires a showing of the existence of a duty, a breach of that duty, and an injury proximately caused by the breach. Evans v. Ohio State Univ. , 112 Ohio App.3d 724, 738, 680 N.E.2d 161 (10th Dist.1996), citing Menifee v. Ohio Welding Prods., Inc. , 15 Ohio St.3d 75, 77, 472 N.E.2d 707 (1984).

{¶ 15} Building on this standard in the specialized context of liability for the acts of an agent, Ohio courts have set forth the necessary elements of a claim in this context:

" '(1) the existence of an employment relationship; (2) the employee's incompetence; (3) the employer's actual or constructive knowledge of such incompetence; (4) the employee's act or omission causing the plaintiff's injuries; and (5) the employer's negligence in hiring [, promoting,] or retaining the employee as the proximate cause of plaintiff's injuries.' "

Ruta v. Breckenridge-Remy Co. , 69 Ohio St.2d 66, 69, 430 N.E.2d 935 (1982), quoting Ruta v. Breckenridge-Remy Co. , 6th Dist. Erie No. E-80-39, 1980 WL 351648, 4 (Dec. 12, 1980), quoting Restatement of the Law 2d, Agency, Section 213, Comment d (1958). The comment to this section of the Restatement goes on to say,

[o]ne who employs another to act for him is not liable under the rule stated in this Section merely because the one employed is incompetent, vicious, or careless. If liability results it is because, under the circumstances, the employer has not taken the care which a prudent man would take in selecting the person for the business in hand. What precautions must be taken depend upon the situation. One can normally assume that another who offers to perform simple work is competent. If, however, the work is likely to subject third persons to serious risk of great harm, there is a special duty of investigation.

Restatement of the Law 2d, Agency, Section 213, Comment d.

{¶ 16} "The foreseeability of a criminal act depends upon the knowledge of the defendant, which must be determined by the totality of the circumstances, and it is only when the totality of the circumstances are 'somewhat overwhelming' that the defendant will be held liable." Evans at 742, 680 N.E.2d 161, citing Feichtner v. Cleveland, 95 Ohio App.3d 388, 396, 642 N.E.2d 657 (8th Dist.1994). "The totality of the circumstances test considers prior similar incidents, the propensity for criminal activity to occur on or near the location of the business, and the character of the business." (Citations omitted.) Shivers v. Univ. of Cincinnati , 10th Dist. Franklin No. 06AP-209, 2006-Ohio-5518, 2006 WL 3008478, ¶ 7.

1. Claims against Minute Men

{¶ 17} Andrew's claims against Minute Men are that it negligently promoted Hillman to a position of authority, which allowed him to abuse that authority and lure Michaela into a situation where Hillman would rape and murder her.

{¶ 18} Generally, there is no duty to control the conduct of third parties by preventing them from causing harm to another, except in cases where there exists a special relationship between the actor and the third party that gives rise to a duty to control, or between the actor and another that gives the other the right to protection. Fed. Steel & Wire Corp. v. Ruhlin Constr. Co. , 45 Ohio St.3d 171, 173, 543 N.E.2d 769 (1989). An employment relationship often constitutes a special relationship. Abrams v. Worthington , 169 Ohio App.3d 94, 2006-Ohio-5516, 861 N.E.2d 920, ¶ 16 (10th Dist.). Here, there was an employment relationship, albeit a temporary one, between Minute Men and Hillman, and Minute Men and Michaela. Therefore, for the purposes of summary judgment, there is an employment relationship that satisfies the first element of the above test.

{¶ 19} Also for summary judgment purposes, taking all reasonable inferences in favor of the nonmoving party, Hillman was incompetent to work in a position of authority based on his past criminal history. Minute Men argues that the type of work involved was low-wage, unskilled labor that could be done by anyone with a willingness to do it. In fact, the Restatement supports this position for the job of a cleaner: "One can normally assume that another who offers to perform simple work is competent." Restatement of the Law 2d, Agency, Section 213, Comment d. That is the case here when Hillman was working as a general laborer with only slight contact with the public. However, the elevation of Hillman to group leader bestowed more responsibilities, and at least the appearance of authority over his coworkers. The comment goes on to provide, "[i]f, however, the work is likely to subject third persons to serious risk of great harm, there is a special duty of investigation." Id.

{¶ 20} Minute Men also had knowledge of Hillman's incompetency. Minute Men employees, including Sabetta, had some level of knowledge of Hillman's criminal convictions. Sabetta, along with another Minute Men employee, conducted a cursory check of Hillman's criminal background in the process of determining whether Hillman qualified for work with another employer. Sabetta likely promoted Hillman, or recommended him for promotion to group leader. Sabetta knew that Hillman had serious felony convictions, but the extent of knowledge is in dispute. Records from the Cuyahoga County Common Pleas Court docket, which were submitted in this case, and what Sabetta likely examined, reveals that Hillman had several convictions, including one for rape, for which he was declared a sexual predator.

{¶ 21} The level of care that must be exercised by an employer in making employment decisions depends on the nature of the decision and all the surrounding facts and circumstances. Shivers , 10th Dist. Franklin No. 06AP-209, 2006-Ohio-5518, 2006 WL 3008478, at ¶ 7. Generally, the type of employment offered by Minute Men in this case requires little investigation. But where an employee may exercise control or supervision over fellow employees, more may be required.

{¶ 22} For instance, this court has recognized that "[a]n employer may be negligent if he knew, or should have known, that his employee had a propensity for violence and such employment might create a situation where the violence would harm a third person." Steppe v. KMart Stores , 136 Ohio App.3d 454, 466, 737 N.E.2d 58 (8th Dist.1999), citing Staten v. Ohio Exterminating Co., Inc. , 123 Ohio App.3d 526, 530, 704 N.E.2d 621 (10th Dist.1997). When an employer bestows on an individual the tools of authority and supervision that could be yielded with a malevolent purpose, liability may be found where the employer has reason to know of an individual's propensity to do so, depending on the facts and circumstances of the case.

{¶ 23} In Evans , a committee overseeing a program of clinics within the 4-H program employed James Waites to speak at clinics in a controlled environment. The committee learned that Waites had a criminal history and still chose to allow Waites to speak at two other clinics. Months after the last clinic, Waites became involved in the life of a young girl in the role of helping her with a 4-H project. Waites molested this girl, and others, and was eventually found guilty of numerous charges of rape and felonious assault. Evans, 112 Ohio App.3d at 732-733, 680 N.E.2d 161. In affirming the grant of summary judgment, the Evans court emphasized the scope of the duty and its interrelatedness to the foreseeability of harm:

In addition to the limited nature of the duties for which Waites was hired as well as the limited degree of contact he had with other individuals in performing those duties, the circumstances of this case indicate that no incidents occurred at any clinic in which Waites participated * * * defendant had no knowledge of Waites' personal activities in that county, the assault at issue did not occur at a 4-H event, the injured plaintiff was not a member of 4-H at the time Waites was employed by defendant and there was no employment relationship between defendant and Waites at the time of the molestation, Waites' last clinic event taking place over one year prior to the incident.

Id. at 743, 680 N.E.2d 161. However, the Evans court recognized that a duty may exist to those children that actually attended the clinics when Waites had an employment relationship with the 4-H program. Id.

{¶ 24} Relying in part on Evans , this court addressed a negligent hiring, retention, and supervision claim, and held that there is a requirement that an employee be "on the clock" when a criminal or tortious act is committed. Saleh v. Marc Glassman, Inc. , 8th Dist. Cuyahoga No. 86010, 2005-Ohio-6127, 2005 WL 3081507, ¶ 28. In Saleh , teenage employees of a grocery store who were on a break assaulted other teenagers. Id. at ¶ 5-6. Appellees rely on the holding in this case to disclaim any liability for Hillman's actions. While Evans does not explicitly set forth a requirement that liability may only attach when an employee is "on the clock," the other cases that the Saleh court cited do support such a holding. See Gebhart v. College of Mt. St. Joseph , 106 Ohio App.3d 1, 665 N.E.2d 223 (1st Dist.1995) ; Malone v. Miami Univ. , 89 Ohio App.3d 527, 625 N.E.2d 640 (10th Dist.1993). However, Gebhart was a negligent supervision case where that court found that there was no duty to supervise an employee when that employee was not at work, but was at home. Id. at 5, 665 N.E.2d 223. Malone is also a negligent supervision case where an employer allowed a clearly intoxicated employee to leave work at his regularly scheduled time and drive home. Id. at 530-531, 625 N.E.2d 640.

{¶ 25} Saleh , Gebhart , and Malone do not really address the negligent promotion claim that has been asserted in the present case. They address negligent supervision claims. Those cases are not determinative because the duty to supervise necessarily includes an ability to supervise for the imposition of liability on an employer. When employees are not "on the clock," an employer generally has no authority or ability to supervise them. Therefore, liability does not attach for actions that occur when an employee is away from work or not subject to the supervision of the employer.

{¶ 26} This case is different. It is more like Evans where the claims asserted are in the negligent hiring, retention, or promotion of an employee where that decision created a significant risk of harm to those that enjoy a special relationship with the employer. The Evans court found no special relationship existed between the victims in that case, but also recognized that had the victims attended one of Waites' clinics and enjoyed that special relationship, a duty may exist and the case may have come out differently.

{¶ 27} Here, the foreseeability of Hillman's actions, given Minute Men's knowledge of his adjudication as a sexual predator and his prior history of raping women, gives rise to a duty to warn or protect others from that danger. Minute Men may not have had an independent duty to investigate Hillman given that its client did not direct it to do any criminal investigations of its employees supplied for the cleaning service, but once Minute Men had knowledge of Hillman's criminal history, a duty arose to not act negligently in the promotion of Hillman to a position that put him in charge of others.

{¶ 28} In the present case, there are questions of fact about the extent to which Hillman's promotion to group leader led to Michaela's death. "[O]nce a plaintiff establishes that the defendant had a duty, whether the defendant breached that duty is generally a question of fact for the jury. Likewise, proximate cause ordinarily presents a question of fact for the jury." (Citations omitted.)

Eastley v. Volkman , 4th Dist. Scioto Nos. 09CA3308 and 09CA3309, 2012-Ohio-4528, 2012 WL 4482990, ¶ 17. Even though the harm that befell Michaela occurred outside of the work situs and while Hillman was not under the supervision of Minute Men, the act of promoting Hillman to a position of at least apparent authority over Michaela may have proximately caused her death.

{¶ 29} The extent of Hillman's supervisory authority is hotly contested in this case. Minute Men claims that Hillman was not a supervisor and therefore, they are not liable for his actions.

{¶ 30} Addressing the definition of "supervisor" in a claim of a hostile work environment under Title VII of the Civil Rights Act of 1964, the Supreme Court determined "an employee is a 'supervisor' for purposes of vicarious liability under Title VII if he or she is empowered by the employer to take tangible employment actions against the victim * * *." Vance v. Ball State Univ. , 570 U.S. 421, 133 S.Ct. 2434, 2439, 186 L.Ed.2d 565 (2013). There, the court looked to the Restatement of the Law, Agency, Section 219(2)(d) for guidance, and recognized an exception to the general rule that an employer is not liable for the intentional torts of its employees. Where the employee was aided in accomplishing the tort by the existence of the agency relationship, an employer may be liable. Id. at 2441. The court went on to note the balance that had been struck in prior cases between the interests of employers and employees. "Specifically, an employer can mitigate or avoid liability by showing (1) that it exercised reasonable care to prevent and promptly correct any harassing behavior and (2) that the plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities that were provided." Id. at 2442, citing Faragher v. Boca Raton , 524 U.S. 775, 807, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) ; Burlington Industries, Inc. v. Ellerth , 524 U.S. 742, 765, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998).

{¶ 31} The Vance court somewhat narrowly defined a supervisor in the Title VII context to only those employees that can take a tangible employment action against another employee. Id. at 2443. A tangible employment action is defined as "a significant change in [the victim's] employment status * * *." Id.

{¶ 32} However, this is not a Title VII case. The above case law deals with vicarious liability for the actions of a supervisor, but not liability for the independent negligent acts of the employer in promoting or retaining an employee. The Vance court recognized the distinction when it stated, "we have held that an employer is directly liable for an employee's unlawful harassment if the employer was negligent with respect to the offensive behavior." Vance at 2441, citing Faragher at 789, 118 S.Ct. 2275. The court then went on to analyze an employer's vicarious liability for the actions of a supervisor in creating a hostile workplace. The definition of a supervisor in this context is applicable for vicarious liability claims. Therefore, the narrow definition of a supervisor as set forth in Vance is not altogether applicable. This is not a vicarious liability claim against Minute Men. Andrew's claim here is that Minute Men had knowledge that promoting Hillman posed a serious risk of harm to other employees and they did that without taking any actions to warn or protect other employees.

{¶ 33} Even if Vance was applicable, according to Honeker, Hillman could determine whether Michaela was assigned to a more desirable position, or even hired in the first place. Her affidavit indicated that Michaela was hired outside the normal process implemented by Minute Men. Usually, temporary employees would arrive at Minute Men's office and sign into the computer systems. In such cases, it was Sabetta's duty to make hiring decisions. However, Michaela did not do this. She arrived at Progressive Field and was selected for employment each night by a group of crew leaders and Sabetta, and specifically Hillman. Hillman also selected Michaela for more desirable work details. Sabetta also indicated that group leaders could recommend that a person not return to work in the clean up crews and those recommendations would be followed. These abilities are consistent with the definition of tangible employment actions set forth in Vance.

{¶ 34} Therefore, the trial court's grant of summary judgment in favor of Minute Men is reversed.

2. Claims Against CIB

{¶ 35} The claims against CIB fail based on a lack of foreseeability given the lack of knowledge CIB had in relation to Hillman's criminal background.

{¶ 36} CIB had no actual knowledge of Hillman's criminal history. There is also no evidence that CIB was aware Hillman engaged in any physical violence or sexual harassment while working at the ballpark. Sabetta did testify that Hillman got into a few arguments and used profanity, but there were no physical altercations. Therefore, Andrew tries to assert claims of imputed or constructive knowledge based on a theory of borrowed or shared employees.

{¶ 37} In the present case, CIB had no actual or constructive knowledge of Hillman's criminal history. "[O]nly those circumstances which [an employer] perceived, or should have perceived, at the time of their respective actions should be considered. Until specific conduct involving an unreasonable risk is made manifest by the evidence presented, there is no issue to submit to the jury." Menifee , 15 Ohio St.3d at 77, 472 N.E.2d 707, citing Englehardt v. Philipps , 136 Ohio St. 73, 23 N.E.2d 829 (1939) ; Prosser & Keeton, Law of Torts, Section 31, 169 (5 Ed.1984).

{¶ 38} Andrew claims that because Sabetta was a de facto employee of CIB, his knowledge of Hillman's criminal background should be imputed to it. "The loaned servant rule provides that where one person lends his servant to another for a particular employment, within the context of that employment, the servant is treated as if he were the servant of the one to whom he was lent." Lawson v. May Dept. Store , 7th Dist. Mahoning No. 00 CA 191, 2001 WL 1539161, 2 (Nov. 27, 2001), citing Halkias v. Wilkoff Co. , 141 Ohio St. 139, 151, 47 N.E.2d 199 (1944).

{¶ 39} The question turns on control.

In determining whether the borrowed employee has become a loaned servant of a party other than his general employer, the inquiry should focus on the question of control, that is, whether the general employer has retained direction and control over the employee, or whether, with respect to the particular act or acts resulting in tort liability, the control of the employee has passed to the borrowing employer "with reference not only to the result reached but to the method of reaching it."

Seiler v. Donald Martens & Sons Ambulance Serv. , 8th Dist. Cuyahoga No. 88043, 2007-Ohio-1603, 2007 WL 1020804, ¶ 18, quoting Cincinnati Ins. Co. v. Continental Ins. Co. , 1st Dist. Hamilton Nos. C-940884 and C-940890, 1995 WL 714262 (Dec. 6, 1995).

{¶ 40} Control can be analyzed by asking "whether while performing the task, the employee continues to be liable to the direction and control of the general employer, or becomes subject to that of the person to whom he is lent."

Carrico v. Drake Constr. , 5th Dist. Stark No. 2005 CA 00201, 2006-Ohio-3138, 2006 WL 1689192, ¶ 24.

{¶ 41} Here, Minute Men not only provided workers to CIB, it also provided a supervisory structure to manage the cleaning services. Each engagement for cleaning at the ballpark included Minute Men providing general laborers to collect trash and recycling, and a team of supervisors and managers to oversee the general laborers and group leaders.

{¶ 42} The contracts between Minute Men and CIB provided that Minute Men would provide "in-park cleanup services" for a particular season. The agreements are termed partnership agreements. They provided advertising for Minute Men at the ballpark and allowed the use of certain trademarks in Minute Men's advertising. The agreements also stated that Minute Men would provide the aforementioned cleanup services at rates set forth in an attachment to the contract. The contracts contemplate the provision of cleanup services. However, the contracts do not spell out the relationship between the parties and leave many details of this relationship unanswered.

{¶ 43} Both Sabetta and Evans testified that it was Minute Men's responsibility to hire, discipline, pay, and direct the activities of the Minute Men employees working at the ballpark. Evans had an overall supervisory responsibility, and often micro managed the cleanup process, but he would not discipline Minute Men employees. Here, CIB did not exercise the requisite control necessary to find that Minute Men staff were borrowed employees.

{¶ 44} Sabetta also did not come by the knowledge about Hillman's background in the context of any employment with CIB. The loaned servant rule is specifically limited to activities within the confines of the purpose for which the employee is borrowed. Sabetta learned of Hillman's past while engaged in activities for Minute Men, not CIB.

{¶ 45} Further, while CIB, through Evans, had veto power over a promotion decision, it was likely Minute Men that promoted Hillman to group leader. Evans testified that the normal procedure was for the project manager to inform him of a certain person in mind for promotion, and that Evans would normally agree with that suggestion. Sabetta, the project manager at the time Hillman was promoted, testified similarly. While both men testified they did not promote Hillman, this does not create a material question of fact in this case.

{¶ 46} CIB had no actual or constructive knowledge of Hillman's past, there were no on the job performance issues that would prompt a duty to investigate, and it was not required to conduct a background investigation for the services provided.

{¶ 47} The elements of the tort of negligent hiring, and by extension, negligent promotion, are derived from the Restatement (Second) of Agency, Section 213. Ruta , 69 Ohio St.2d at 69, 430 N.E.2d 935, quoting Ruta , 6th Dist. Erie No. E-80-39, 1980 WL 351648, 4, quoting Restatement of the Law 2d, Agency, Section 213, Comment d (1958). Interpreting this section, the Supreme Court of Colorado held:

We endorse the proposition that where an employer hires a person for a job requiring frequent contact with members of the public, or involving close contact with particular persons as a result of a special relationship between such persons and the employer, the employer's duty of reasonable care is not satisfied by a mere review of personal data disclosed by the applicant on a job application form or during a personal interview. However, in the absence of circumstances antecedently giving the employer reason to believe that the job applicant, by reason of some attribute of character or prior conduct, would constitute an undue risk of harm to members of the public with whom the applicant will be in frequent contact or to particular persons standing in a special relationship to the employer and with whom the applicant will have close contact, we decline to impose upon the employer the duty to obtain and review official records of an applicant's criminal history.

Connes v. Molalla Transport Sys., Inc. , 831 P.2d 1316, 1322 (Colo.1992). See also Strauss v. Hotel Continental Co. , 610 S.W.2d 109 (Mo.App.1980).

{¶ 48} This informs our review of the case. Even if Andrew is correct that it was actually CIB that promoted Hillman to supervisor, there was no prior warning that exposed the degree of risk that would result from his promotion. Hillman had shown himself to be a good worker with no indication that he posed a risk to others. Sabetta testified that Hillman was never violent toward anyone at work, but that he got in a few verbal altercations where he used profanity.

{¶ 49} Andrew also argues that CIB should have required Minute Men to conduct background checks on the individuals that Minute Men provided under the agreement for the provision of services. However, in Ohio there is no duty for an employer to conduct a background check in all cases. "Although it may be prudent for an employer to conduct a criminal background check for employment applicants, it is not required by law." Saavedra v. Mikado Japanese Steak House & Sushi , 10th Dist. Franklin No. 14AP-757, 2015-Ohio-778, 2015 WL 930201, ¶ 12, citing Rozzi v. Star Personnel Servs., Inc. , 12th Dist. Butler No. CA2006-07-162, 2007-Ohio-2555, 2007 WL 1531427, ¶ 11. See also Steppe , 136 Ohio App.3d at 467, 737 N.E.2d 58, citing Kuhn v. Youlten , 118 Ohio App.3d 168, 177, 692 N.E.2d 226 (8th Dist.1997). This is especially true where the position at issue involves general labor in a supervised, open environment with little or no contact between employees and the public. See Garcia v. Duffy , 492 So.2d 435, 441-442 (Fla.App.1986) ; Ponticas v. K.M.S. Invests. , 331 N.W.2d 907, 913 (Minn.1983) ; Connes at 1322.

{¶ 50} Therefore, the trial court did not err in granting summary judgment in favor of CIB.

III. Conclusion

{¶ 51} Minute Men had some degree of knowledge regarding Hillman's past criminal history and participated in or decided to promote him to a position of authority over others. The extent of that knowledge, the foreseeability of the risk that decision posed to other employees given the extent of that knowledge, and whether that decision proximately caused Michaela's injuries are all material questions for a trier of fact. CIB had no similar knowledge, nor was it required to investigate the employees Minute Men hired for cleaning services. The claims against CIB fail as a matter of law.

{¶ 52} Judgment affirmed in part, reversed in part, and remanded to the lower court for further proceedings consistent with this opinion.

MARY EILEEN KILBANE, J., CONCURS;

EILEEN A. GALLAGHER, A.J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE OPINION

{¶ 53} I concur with the majority's affirmance of the trial court's decision granting summary judgment in favor of CIB. I respectfully dissent, however, from the majority's decision to reverse the granting of summary judgment in favor of Minute Men. I do not agree that there is a cognizable claim for negligent promotion under the undisputed facts of this case.

{¶ 54} In this case, it is undisputed that Hillman raped and murdered Michaela at an abandoned house on August 20, 2014, three days after they worked together on a cleanup crew at Progressive Field. It is likewise undisputed that Michaela and Hillman left together in her car after they completed their shift on August 17, 2014 and that Michaela socialized with Hillman at a Cleveland casino the following night.

{¶ 55} I do not agree with the majority that the duty Minute Men owed to Michaela as a temporary cleanup crew worker extended to protecting her from Hillman's criminal conduct, which occurred outside the workplace, after she had been socializing with Hillman days after her employment with Minute Men had ended. Nor do I believe that a reasonable jury could find, under the facts and circumstances here, that any action or omission by Minute Men was a proximate cause of Michaela's death. Although the majority asserts that "the act of promoting Hillman to a position of at least apparent authority over Michaela may have proximately caused her death," there is no evidence in the record that suggests that the reason Michaela continued to interact and socialize with Hillman after August 17, 2014 had anything to do with her prior employment by Minute Men or that Minute Men had any knowledge of their continued interaction. Michaela's death is a horrific tragedy but it is not one for which I believe Minute Men bears responsibility under Ohio law. Accordingly, I would affirm the trial court's entry of summary judgment in favor of Minute Men.

      The negligent infliction of emotional distress claim was actually argued as a negligent hiring, retention, supervision, or promotion claim.

      Andrew does not raise an issue with the trial court's dismissal of the claims against Hillman.

      The Supreme Court of Ohio was merely quoting those elements without deciding whether the tort actually existed in Ohio. Since then, other appellate courts, including this one, have used these elements to analyze tort claims based on a theory of negligent hiring, retention, or supervision.

      An employer has a similar duty of reasonable care in the selection of its employees or independent contractors. Albain v. Flower Hosp. , 50 Ohio St.3d 251, 257, 553 N.E.2d 1038 (1990).

      Andrew stresses Sabetta's testimony that he could see violence in Hillman, but all this testimony goes to establish is that there were no incidents of physical violence in the workplace prior to the decision to promote Hillman.


text:
    Christopher & Brittany TANGLER, Plaintiffs-Appellees, v. VILLAGE OF CARROLLTON, Defendant-Appellant.
    NO. 17 CA 0920
    Court of Appeals of Ohio, Seventh District, Carroll County.
    Dated: April 5, 2018
    Attorney J. Lundholm, 405 Chauncey Avenue, N.W., P.O. Box 668, New Philadelphia, Ohio 44663, For Plaintiffs-Appellees.
    Attorney Kristen Campbell Traub, Bretton Commons, Suite 400, 8040 Cleveland Avenue, NW, North Canton, Ohio 44720, For Defendant-Appellant.
   JUDGES: Hon. Gene Donofrio, Hon. Cheryl L. Waite, Hon. Carol Ann Robb

OPINION

DONOFRIO, J.

{¶ 1} Defendant-appellant, the Village of Carrollton, appeals the judgment of the Carroll County Court of Common Pleas denying its motion for summary judgment regarding political subdivision immunity.

{¶ 2} Appellant is a political subdivision as defined under Ohio law. Plaintiffs-appellees, Christopher and Brittany Tangler, reside on Courtview Drive inside appellant's jurisdiction. This action concerns a sewer system that is operated and maintained by appellant which services appellees' residence.

{¶ 3} The sewer system itself was constructed at some time during the 1950's. The relevant sewer line was constructed with terracotta clay tiles. Appellees purchased their home in appellant's jurisdiction in May of 2014. In October of 2014, appellees experienced a backup with the sewer system. After appellees contacted appellant about the October 2014 backup, appellant had employees inspect appellees' residence and the sewer line itself. After the inspection, appellant's employees were unable to locate any deficiency that caused the backup.

{¶ 4} In July of 2015, appellees experienced another backup with the sewer system and again contacted appellant. Appellant sent employees to inspect the system and the employees did locate a problem with the sewer system that caused the backup affecting appellees' home. The problem in the sewer system was directly in front of appellees' residence. At that point, appellant performed an excavation and removed the damaged portion of the sewer line and replaced it with PVC pipe.

{¶ 5} Upon further inspection of a larger portion of the sewer system, appellant concluded the current sewer system was inadequate to service the needs of some of appellant's residents. As a result, appellant put plans in place to replace the entire length of sewer line between the manholes on Courtview Drive and Moody Street.

{¶ 6} After appellant began to make plans for the sewer replacement, but before the sewer line itself was replaced, appellees experienced a third backup in the sewer system in January of 2016. Appellees then filed a complaint against appellant claiming that appellant was negligent in its maintenance of the sewer system. Appellees also requested a temporary restraining order to prevent appellant from moving forward with its plans to replace the sewer system arguing that doing so would destroy evidence vital to appellees' action. The trial court granted appellees' motion for a temporary restraining order.

{¶ 7} After discovery concluded, appellant filed a motion for summary judgment. The crux of appellant's motion for summary judgment was that it, as a political subdivision, enjoyed immunity to which no exception applied which ultimately barred appellees' action. In the alternative, appellant argued that even if an exception to its immunity applied, a statutory defense would also apply and re-establish appellant's immunity. Appellees argued that the backups were due to negligent maintenance of the sewer lines, which is considered a proprietary function. Because maintenance issues are considered propriety functions of political subdivisions, appellees argued that appellant was not entitled to immunity protection.

{¶ 8} In a judgment entry dated July 12, 2017, the trial court ruled that there were material questions of fact which precluded summary judgment and denied appellant's motion. Pursuant to R.C. 2744.02(C), the trial court held that its ruling on appellant's motion for summary judgment was a final appealable order. Appellant timely filed this appeal on August 11, 2017. Appellant now raises one assignment of error.

{¶ 9} Appellant's sole assignment of error states:

THE TRIAL [COURT] ERRED IN DENYING SUMMARY JUDGMENT TO APPELLANT VILLAGE OF CARROLLTON BASED ON POLITICAL SUBDIVISION IMMUNITY.

{¶ 10} Appellant raises numerous issues concerning its sole assignment of error. However, we need only address appellant's first argument that the trial court failed to perform any legal analysis to determine if appellees' claims should have been barred by political subdivision immunity. Appellant urges this Court to perform the political subdivision legal analysis, reverse the trial court's decision, and grant its motion for summary judgment pursuant to App.R. 12.

{¶ 11} An appellate court reviews a trial court's summary judgment decision de novo, applying the same standard used by the trial court. Ohio Govt. Risk Mgt. Plan v. Harrison , 115 Ohio St.3d 241, 2007-Ohio-4948, 874 N.E.2d 1155, ¶ 5. A motion for summary judgment is properly granted if the court, upon viewing the evidence in a light most favorable to the nonmoving party, determines that: (1) there are no genuine issues as to any material facts; (2) the movant is entitled to judgment as a matter of law, and (3) the evidence is such that reasonable minds can come to but one conclusion and that conclusion is adverse to the opposing party. Civ. R. 56(C) ; Byrd v. Smith , 110 Ohio St. 3d 24, 2006-Ohio-3455, 850 N.E.2d 47, ¶ 10.

{¶ 12} "[T]he moving party bears the initial responsibility of informing the trial court of the basis for the motion, and identifying those portions of the record which demonstrate the absence of a genuine issue of fact on a material element of the nonmoving party's claim." Dresher v. Burt , 75 Ohio St.3d 280, 296, 662 N.E.2d 264 (1996). The trial court's decision must be based upon "the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action." Civ. R. 56(C). The nonmoving party has the reciprocal burden of specificity and cannot rest on the mere allegations or denials in the pleadings. Id. at 293, 662 N.E.2d 264.

{¶ 13} In Dresher , the Ohio Supreme Court held that a party who moves for summary judgment need not support its motion with affidavits provided that the party does not bear the burden of proof on the issues contained in the motion. Dresher at 277, 662 N.E.2d 264. Further, there is no requirement in Civ. R. 56 that any party submit affidavits to support a motion for summary judgment. See, e.g., Civ. R. 56(A) and (B). Id. However, there is a requirement that a moving party, in support of a summary judgment motion, specifically point to something in the record that comports with the evidentiary materials set forth in Civ. R. 56(C). Id.

{¶ 14} Summary judgment is appropriate when there is no genuine issue as to any material fact. A "material fact" depends on the substantive law of the claim being litigated. Hoyt, Inc. v. Gordon & Assoc., Inc., 104 Ohio App.3d, 598, 603, 662 N.E.2d 1088 (8th Dist. 1995), citing Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247-248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

{¶ 15} "Whether a political subdivision is entitled to immunity is analyzed using a three-tiered process." Iannuzzi v. Harris , 7th Dist. No. 10-MA-117, 2011-Ohio-3185, 2011 WL 2556918, ¶ 9 citing Greene Cty. Agricultural Soc. v. Liming , 89 Ohio St.3d 551, 556, 733 N.E.2d 1141 (2000). First, R.C. 2744.02(A)(1) sets forth the general rule that political subdivisions are not liable in damages. Id. Second, the court must determine if any of the exceptions to political subdivision immunity as set forth in R.C. 2744.02(B) apply. Id. Third, if the court finds that an exception found in R.C. 2744.02(B) does apply, the court must then consider R.C. 2744.03 which provides defenses and immunities to liability. Id.

{¶ 16} The political subdivision immunity is an affirmative defense and the burden of proof is on the political subdivision to establish general immunity. Slane v. Hilliard , 10th Dist., 2016-Ohio-306, 59 N.E.3d 545, ¶ 30. When the political subdivision establishes general immunity, the burden then shifts to the plaintiff to show that one of the exceptions to immunity applies. Id. at ¶ 31.

{¶ 17} Pursuant to the first tier of the analysis, it is uncontested that appellant is a political subdivision pursuant to R.C. 2744.01(F). As such, the burden then shifts to appellees to show that an exception to political subdivision immunity applies.

{¶ 18} Analyzing the second tier, appellees' memorandum in opposition to summary judgment implicitly argues that the applicable exception to appellant's immunity is R.C. 2744.02(B)(2). Pursuant to R.C. 2744.02(B)(2), "political subdivisions are liable for injury, death, or loss to person or property caused by the negligent performance of acts by their employees with respect to proprietary functions of the political subdivisions." "* * * [B]efore R.C. 2744.02(B)(2) will remove a political subdivision's immunity, the plaintiff must establish: (1) the elements required to sustain a negligence action-duty, breach, proximate cause, and damages; and (2) that the negligence arose out of a 'proprietary function.' " Pierce v. Gallipolis , 4th Dist., 2015-Ohio-2995, 39 N.E.3d 858, ¶ 20 citing Gabel v. Miami E. School Bd. , 169 Ohio App.3d 609, 2006-Ohio-5963, 864 N.E.2d 102, ¶ 39-40 (2d Dist.).

{¶ 19} Appellees' argue that the backups they experienced with the sewer system were due to appellant's negligent maintenance of the sewer line near their home. Pursuant to R.C. 2744.01(G)(2)(d), the maintenance, destruction, operation, and upkeep of a sewer system are defined as proprietary functions.

{¶ 20} Before liability can attach in a negligent maintenance claim for failure to maintain a sewer system, proof that the political subdivision had either constructive or actual notice of a defect is required. Yetts v. City of Toronto , 7th Dist. No. 98-JE-6, 1999 WL 689964 citing Beebe v. Toledo , 168 Ohio St. 203, 151 N.E.2d 738 (1958), see also Thompson v. Campbell , 7th Dist. No. 07-MA-54, 2008-Ohio-1545, 2008 WL 852026, ¶ 3. In this case, it is undisputed that appellees contacted appellant after each backup occurred. Therefore, appellant had proper notice of a defect with the sewer system.

{¶ 21} Addressing the negligence claim, there are two pieces of evidence appellees rely on to show that appellant negligently maintained the sewer line on Courtview Drive. First, appellees rely on the affidavit of their expert, Ron Waid. (Memo in Opp. to Summary Judgment, Exhibit A). In his affidavit, Waid states that he has been employed with a company that is in the business of sewer cleaning and sewer construction since 1981. (Waid Aff. ¶ 3-4). Waid also states that he is state certified in sewer maintenance and installation and takes courses annually to maintain his certification. (Waid Aff. ¶ 5). Finally, Waid states that it is his opinion that the blockages in the sewer line that caused appellees' backups could have been avoided had appellant checked the line with a camera as part of a regular program of preventative maintenance. (Waid Aff. ¶ 17).

{¶ 22} Second, appellees point to portions of the deposition of Roy Ford, appellant's superintendent of waste water. (Ford Dep. 7). Ford testified that part of the normal maintenance program his department performed was to "jet out" various sewer lines throughout the village. (Ford Dep. 40). But Ford did not know how frequently maintenance was performed on the Courtview Drive sewer line. (Ford Dep. 41).

{¶ 23} The evidence relied on by appellees is not sufficient to create a genuine issue of material fact regarding appellant's negligence. Ford's affidavit, which was attached to appellant's motion for summary judgment, states that appellant's waste water department routinely performed inspections and maintenance on the sewer system. (Ford Aff. ¶ 2-6). Such maintenance included jetting approximately 1,500 to 2,500 feet of sewer line each month. (Ford Aff. ¶ 6). Additionally, a lift station, which monitors water flow in the sewer system, was located near appellees' residence and it was also inspected and maintained routinely. (Ford Aff. ¶ 7). The lift station was inspected at least once a week. (Ford Dep. 41).

{¶ 24} Ford's affidavit also states that he inspected the sewer line after appellees' first backup in October of 2014 and found no problems. (Ford Aff. ¶ 10). It was not until appellees' second backup in July of 2015 when a problem with the Courtview Drive sewer line was discovered. (Ford Aff. ¶ 11). Upon the discovery of that problem, appellant performed an excavation of the sewer line, replaced the damaged portion sewer line with PVC pipe, and began implementing plans to replace the entire sewer line on Courtview Drive. (Ford Aff. ¶ 12-17).

{¶ 25} This evidence indicates that appellant never breached any duty it owed to appellees. Appellant put forth evidence that its sewers lines were routinely inspected and maintained. Moreover, this evidence also shows that once appellant discovered the problem with the Courtview Drive sewer line after appellees' second backup, steps were taken to fix the backup problem and to help prevent future backups from occurring.

{¶ 26} Analyzing the evidence relied on by appellees, Ron Waid's opinion that the backups could have been prevented had appellant used a camera to inspect the sewer lines does not negate the fact that appellant routinely inspected and maintained its sewer system. The lack of a camera to inspect the sewer system does not amount to a breach of appellant's duty in this case because the evidence in the record shows that appellant routinely performed maintenance on its sewer system. Appellant routinely jetted its sewer lines and routinely inspected the Courtview Drive lift station. Appellant's employees also inspected the Courtview Drive sewer line after appellees experienced backups and took steps to replace the sewer line after a problem was identified.

{¶ 27} Similarly, the fact that Ford could not recall how frequently the Courtview Drive sewer line was serviced does not negate the fact that appellant routinely inspected and maintained its sewer lines, including Courtview Drive. With no evidence that appellant breached any duty it owed to appellees, there is no evidence that appellant or its employees were negligent in their maintenance of the Courtview Drive sewer line. As such, no exception to appellant's immunity exists in this case and we need not address the third tier of the political subdivision immunity analysis.

{¶ 28} Even if a genuine issue of material fact existed regarding appellant's negligence, immunity would still apply because the issue with the Courtview Drive sewer line would be considered a governmental function and not proprietary. " R.C. 2744.01(C)(2)(l) identifies as a governmental function 'the provision or nonprovision, planning or design, construction, or reconstruction of a public improvement, including, but not limited to, a sewer system,' making these responsibilities immune from political-subdivision liability." Coleman v. Portage Cty. Engineer , 133 Ohio St.3d 28, 2012-Ohio-3881, 975 N.E.2d 952, ¶ 12.

{¶ 29} Evidence in the record shows that the old design of the sewer system was deficient and needed to be redesigned and replaced. (Ford Aff. ¶ 16-18). Even appellees' expert provided evidence that sewer systems using terracotta clay tiles break "over time" and that the Courtview Drive sewer line was "old and worn out." (Waid Aff. ¶ 13-14). These portions of Waid's affidavit indicate that the sewer's original design and usage of clay tiles had become deficient over time and needed replaced.

{¶ 30} Accordingly, appellant's sole assignment of error has merit and is sustained.

{¶ 31} For the reasons stated above, the trial court's judgment is hereby reversed and summary judgment is hereby entered in favor of appellant.

Waite, J., concurs.

Robb, P., J., concurs.