[Cite as Johnson v. Greater Cleveland Regional Transit Auth., 2014-Ohio-4694.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 101249




                                  STEPHEN JOHNSON
                                                  PLAINTIFF-APPELLEE

                                                    vs.


                       GREATER CLEVELAND R.T.A.
                                                  DEFENDANT-APPELLANT




                                           JUDGMENT:
                                            AFFIRMED


                                     Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                   Case No. CV-12-791044

        BEFORE: Kilbane, J., Keough, P.J., and McCormack, J.

        RELEASED AND JOURNALIZED:                         October 23, 2014
ATTORNEYS FOR APPELLANT

Colleen A. Mountcastle
Joseph W. Pappalardo
Gallagher Sharp
Sixth Floor, Bulkley Building
1501 Euclid Avenue
Cleveland, Ohio 44115

Sheryl King Benford
General Counsel, G.C.R.T.A.
Keith A. Ganther
Associate Council, G.C.R.T.A.
6th Floor, Root-McBride Building
1240 West 6th Street
Cleveland, Ohio 44113


ATTORNEY FOR APPELLEE

Sarah T. Kovoor
Ford, Gold, Kovoor & Simon Law Group
8872 East Market Street
Warren, Ohio 44484
MARY EILEEN KILBANE, J.:

      {¶1} Defendant-appellant, the Greater Cleveland Regional Transit Authority

(“GCRTA”), appeals from the trial court’s decision denying its motion for summary

judgment. For the reasons set forth below, we affirm.

      {¶2} In September 2012, plaintiff-appellee, Stephen Johnson (“Johnson”), filed a

complaint, alleging negligence and assault, for injuries he sustained while GCRTA

Officer Rhonda Briskey (“Briskey”) stopped and asked him to produce evidence of his

fare card.1 Johnson was a passenger on a GCRTA rapid on September 12, 2011. He

exited the rapid at the West 117th rapid station. He alleges that when he exited from the

train, Briskey approached and assaulted him, which caused him injuries.

      {¶3} In January 2013, GCRTA filed a motion for summary judgment, asserting

political subdivision immunity under R.C. Chapter 2744. GCRTA argued it was entitled

to summary judgment because no exceptions to immunity apply to Johnson’s claims and

R.C. 2744.03(A)(3) affords it immunity. R.C. 2744.03(A)(3) provides that:

      In a civil action brought against a political subdivision or an employee of a

      political subdivision to recover damages for injury, death, or loss to person

      or property allegedly caused by any act or omission in connection with a




      1We note that Johnson filed his complaint pro se, but retained counsel in
November 2012.
      governmental or proprietary function, the following defenses or immunities

      may be asserted to establish nonliability:

      ***

      The political subdivision is immune from liability if the action or failure to

      act by the employee involved that gave rise to the claim of liability was

      within the discretion of the employee with respect to policy-making,

      planning, or enforcement powers by virtue of the duties and responsibilities

      of the office or position of the employee.

      {¶4} GCRTA attached affidavits from Briskey and GCRTA Officer Hurrell Smith

(“Smith”) to establish facts of the incident. According to Briskey and Smith, they were

randomly checking fare passenger cards at the West 117th Street station on September 12,

2011. Briskey approached Johnson, identified herself, and asked him to show his fare

card. Johnson shoved his fare card in Briskey’s face. Briskey moved his hand from her

face in order to inspect the fare card. The card appeared to be valid and Briskey gave the

card back to Johnson. At no time, did Briskey push Johnson into a wall, twist his arm, or

scream at him.

      {¶5} Johnson opposed GCRTA’s motion for summary judgment, arguing that

GCRTA is not entitled to political subdivision immunity. In support of his brief in

opposition, Johnson attached his affidavit and the statement of Donald Wilson

(“Wilson”), a witness to the incident.      According to Johnson, Briskey approached

Johnson and requested that he show her his fare card. He complied with her request and
proceeded to exit the rapid station. Briskey called him back to see his pass again.

Briskey then grabbed his left hand, snatched the fare card out of his hand, pushed him

into a concrete wall, put his fare card in her pocket, and screamed “this pass is not valid.”

 Briskey then noticed that other passengers were in the area so she gave Johnson his fare

card and left him alone. As a result of being thrown into the wall, Johnson states that he

sustained injuries to his hand, wrist, and back and his cell phone was damaged.

       {¶6} In Wilson’s statement, he states that he did not know Johnson prior to this

incident and gave Johnson his information if he needed him to be a witness. According

to Wilson, Briskey grabbed Johnson’s left hand to snatch the fare card away from him and

put it in her pocket. She was yelling at Johnson, saying that the pass was invalid. When

Briskey grabbed Johnson’s hand, she twisted and pulled it, causing Johnson to fall to the

ground. After she took the pass away from Johnson, Wilson states that Briskey “must

have realized that the pass was valid because she took it out of her pocket and gave it

back to [Johnson.]”

       {¶7} The trial court denied GCRTA’s motion for summary judgment, stating that

                            Briskey’s affidavit is in direct conflict with the affidavits of

                            Johnson and Wilson.        Therefore, the court found that a

                            genuine issue of material facts exists.      GCRTA requested

                            reconsideration of the trial court’s decision. The trial court

                            held a hearing on GCRTA’s motion for reconsideration in

                            March 2014. At the hearing, GCRTA argued it was entitled
                               to immunity under R.C. 2744.03(A)(3). Johnson argued that

                               GCRTA was not entitled to immunity because Briskey

                               assaulted Johnson. The trial court denied GCRTA’s motion

                               in April 2014, stating:

       Hearing on defendant’s oral motion for reconsideration held on March 28,
       2014. Plaintiff and defendant appeared through counsel. Upon further
       review of the briefing, relevant case law, and oral argument, the court’s
       order denying defendant Greater Cleveland Regional Transit Authority’s
       motion for summary judgment is affirmed.

       {¶8} GCRTA now appeals, raising the following single assignment of error for

review.

                                      Assignment of Error

       The trial court erred in denying [GCRTA’s] motion for summary judgment
       because it is entitled to immunity from liability under Chapter 2744 of the
       Ohio Revised Code.

                                      Standard of Review

       {¶9} We review an appeal from summary judgment under a de novo standard of

review. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 1996-Ohio-336, 671

N.E.2d 241; Zemcik v. LaPine Truck Sales & Equip. Co., 124 Ohio App.3d 581, 585, 706

N.E.2d 860 (8th Dist.1998). In Zivich v. Mentor Soccer Club, 82 Ohio St.3d 367,

369-370, 1998-Ohio-389, 696 N.E.2d 201, the Ohio Supreme Court set forth the

appropriate test as follows.

       {¶10} Pursuant to Civ.R. 56, 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) reasonable minds can come to but one conclusion and that conclusion is

adverse to the nonmoving party, said party being entitled to have the evidence construed

most strongly in his favor.     Horton v. Harwick Chem. Corp., 73 Ohio St.3d 679,

1995-Ohio-286, 653 N.E.2d 1196, paragraph three of the syllabus. The party moving for

summary judgment bears the burden of showing that there is no genuine issue of material

fact and that it is entitled to judgment as a matter of law. Dresher v. Burt, 75 Ohio St.3d

280, 292-293, 1996-Ohio-107, 662 N.E.2d 264, 273-274.

       {¶11} Once the moving party satisfies its burden, the nonmoving party “may not

rest upon the mere allegations or denials of the party’s pleadings, but the party’s response,

by affidavit or as otherwise provided in this rule, must set forth specific facts showing

that there is a genuine issue for trial.” Civ.R. 56(E); Mootispaw v. Eckstein, 76 Ohio

St.3d 383, 385, 1996-Ohio-389, 667 N.E.2d 1197. Doubts must be resolved in favor of

the nonmoving party.        Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 358-359,

1992-Ohio-95, 604 N.E.2d 138.

                              Political Subdivision Immunity

       {¶12} GCRTA argues that the trial court erred when it denied its motion for

summary judgment because it is entitled to political subdivision immunity. The process

to determine whether a political subdivision entity enjoys immunity involves a

three-tiered analysis set forth in Colbert v. Cleveland, 99 Ohio St.3d 215,

2003-Ohio-3319, 790 N.E.2d 781.

       The first tier is the general rule that a political subdivision is immune from
       liability incurred in performing either a governmental function or
       proprietary function. [Greene Cty. Agricultural Soc. v. Liming, 89 Ohio
       St.3d 551, 556-557, 2000-Ohio-486, 733 N.E.2d 1141]; R.C.
       2744.02(A)(1).     However, that immunity is not absolute.          R.C.
       2744.02(B); Cater v. Cleveland, 83 Ohio St.3d 24, 28, 1998-Ohio-421, 697
       N.E.2d 610.

       The second tier of the analysis requires a court to determine whether any of
       the five exceptions to immunity listed in R.C. 2744.02(B) apply to expose
       the political subdivision to liability. Id. at 28, 697 N.E.2d 610. * * *

       If any of the exceptions to immunity in R.C. 2744.02(B) do apply and no
       defense to that section protects the political subdivision from liability, then
       the third tier of the analysis requires a court to determine whether any of the
       defenses in R.C. 2744.03 apply, thereby providing the political subdivision
       a defense against liability.

Id. at ¶ 7-9.

       {¶13} In the instant case, GCRTA argued in its motion for summary judgment and

at the reconsideration hearing that it is entitled to judgment as a matter of law solely on

the basis that it is immune from liability under R.C. 2744.03(A)(3). This section is

applied in the third tier of the analysis to restore political subdivision immunity. Our

analysis, therefore, is focused on the applicability of R.C. 2744.03(A)(3) to the matter

before us.

       {¶14} As stated above, R.C. 2744.03, which is titled, “defenses or immunities of

subdivision and employee,” provides that

       (A) In a civil action brought against a political subdivision or an employee
       of a political subdivision to recover damages for injury, death, or loss to
       person or property allegedly caused by any act or omission in connection
       with a governmental or proprietary function, the following defenses or
       immunities may be asserted to establish nonliability:

       ***
      (3) The political subdivision is immune from liability if the action or failure
      to act by the employee involved that gave rise to the claim of liability was
      within the discretion of the employee with respect to policy-making,
      planning, or enforcement powers by virtue of the duties and responsibilities
      of the office or position of the employee.

      {¶15} In Elston v. Howland Local Schools, 113 Ohio St.3d 314, 2007-Ohio-2070,

865 N.E.2d 845, ¶ 27, the Ohio Supreme Court stated that

      [t]he focus of subsection (A)(3) is that the employee be engaged in
      policy-making, planning, or enforcement. * * * [A] political subdivision
      may assert the immunity defense when an employee who has the duty and
      responsibility for policy-making, planning, or enforcement by virtue of
      office or position actually exercises discretion with respect to that power.
      This immunity exists even if the discretionary actions were done recklessly
      or with bad faith or malice.

      {¶16} GCRTA maintains that Briskey was acting in the course and scope of her

employment with GCRTA when she asked Johnson to show his fare card. GCRTA

further maintains that Briskey acted in a reasonable manner and exercised her discretion

and enforcement powers as a transit officer when asked to see Johnson’s fare card and

then moved Johnson’s hand from her face.

      {¶17} This court has previously addressed the application of the defense set forth

in R.C. 2744.03(A)(3) in Fuller v. Cuyahoga Metro. Hous. Auth., 8th Dist. Cuyahoga No.

92270, 2009-Ohio-4716.      In Fuller, the plaintiff sued the Cuyahoga Metropolitan

Housing Authority (“CMHA”) for injuries he sustained while being arrested by CMHA

police officers.   We noted that: “[p]olice officers have discretion under most

circumstances in deciding how to perform their duties.” Id. at ¶ 19, citing McCleskey v.

Kemp, 481 U.S. 279, 297, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987). We found that the
CMHA officers were engaged in the exercise of discretion, as set forth in R.C.

2744.03(A)(3), when they performed their duties of searching, seizing, and arresting

Johnson.   Id., citing   Willis v. Commodity Specialists Co., 158 Ohio App.3d 444,

2004-Ohio-4807, 816 N.E.2d 611 (3d Dist.) (police officer’s decision to allow traffic to

proceed over grain spill was an exercise of police discretion under R.C. 2744.03(A)(3));

Englehardt v. Beavercreek, 2d Dist. Greene No. 91-CA-71, 1992 Ohio App. LEXIS 4136

(Aug. 13, 1992) (police officer’s orders on the scene of a traffic accident were within

officer’s discretion under R.C. 2744.03(A)(3)).

      {¶18} Similarly, Briskey’s actions of randomly checking fare passenger cards were

within her discretion in performing her duties as a GCRTA officer. In her own affidavit,

Briskey stated that her duties as a transit officer for GCRTA involve checking passenger

fare cards. The allegations, however, of the assault by Briskey after she asked for

Johnson’s fare card, create a genuine issue of material fact as to the discretion

contemplated by R.C. 2744.03(A)(3).

      {¶19} R.C. 2744.03 does not define “discretion,” but in other contexts the Ohio

Supreme Court has stated that “discretion involves the option between the ‘doing and not

doing of a thing which cannot be demanded as an absolute legal right[.]” Fuller at ¶ 15,

quoting Krupp v. Poor, 24 Ohio St.2d 123, 265 N.E.2d 268 (1970), paragraph two of the

syllabus. “Inherent in the concept of discretion is the understanding that the person in

whom discretion is reposed must act in a just and proper manner, ‘guided by the spirit,

principles and analogies of the law[.]’” Id., quoting Krupp.
       {¶20} In the instant case, the only evidence before the trial court are affidavits,

which conflict as to the relevant facts of the case. Johnson and Wilson state that Briskey

grabbed Johnson’s left hand, snatched the fare card out of his hand, pushed him into a

wall and screamed “this pass is not valid.” Whereas, Briskey and Smith state that

Johnson shoved his fare card in Briskey’s face, and at no time, did Briskey push Johnson

into a wall, twist his arm, or scream at him.

       {¶21} As a result, genuine issues of material fact remain with respect to whether

Briskey’s actions of grabbing Johnson’s hand and pushing him into a wall are within her

discretion while she was checking for Johnson’s fare card. Therefore, when construing

the evidence most strongly in Johnson’s favor, we agree with the trial court in that

GCRTA failed to demonstrate that it was entitled to judgment as a matter of law.

       {¶22} Accordingly, the sole assignment of error is overruled.

       {¶23} Judgment is affirmed.

       It is ordered that appellee 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.
MARY EILEEN KILBANE, JUDGE

TIM McCORMACK, J., CONCURS;
KATHLEEN ANN KEOUGH, P.J., DISSENTS (SEE SEPARATE DISSENTING
OPINION)

KATHLEEN ANN KEOUGH, P.J., DISSENTS:

      {¶24} Respectfully, I dissent. I would find that the trial court erred in denying

GCRTA’s motion for summary judgment because GCRTA is immune from liability.

      {¶25} In its opinion denying GCRTA’s motion for reconsideration, the trial court

relied on R.C. 2744.03(A)(6) to find that there are questions of fact regarding whether

GCRTA is immune from liability. That section, however, only applies when a plaintiff

seeks to hold a governmental employee personally liable for the employee’s actions

relating to his or her governmental employment. Rankin v. Cuyahoga Cty. Dept. of

Children & Family Servs., 118 Ohio St.3d 392, 2006-Ohio-2567, 889 N.E.2d 521, ¶ 36;

Green Cty. Agricultural Soc. v. Liming, 89 Ohio St.3d 551, 561, 2000-Ohio-486, 733

N.E.2d 1141; Meredith v. Cleveland Hts. Police Dept., 8th Dist. Cuyahoga No. 93436,

2010-Ohio-2472, ¶ 14 (“An employee of a political subdivision may also be shielded by

immunity from civil liability; however, the analysis is governed by R.C. 2744.03(A)(6),

and it differs from the analysis used for the political subdivision.”) Here, although

Johnson named a Jane Doe defendant in his complaint, the record reflects that he never

subsequently named the defendant nor served the summons and complaint on her in

compliance with Civ.R. 15(D) and the one-year period to commence an action as required

by Civ.R. 3(A). Accordingly, the only defendant in this action is GCRTA, a political
subdivision; R.C. 2744.03(A)(6) is therefore not applicable. Howard v. Girard, 11th

Dist. Trumbull No. 2010-T-0096, 2011-Ohio-2331, ¶ 59 (“The [plaintiff’s] reliance on

R.C. 2744.03(A)(6) for his claim of the city’s liability is misplaced.”) (Emphasis sic).

       {¶26} To determine whether GCRTA is immune, we apply the well-established

three-tiered analysis for determining whether a political subdivision is immune from

liability. The first tier is the general rule that a political subdivision is immune from

liability incurred in performing either a governmental or proprietary function.            R.C.

2744.02(A)(1).

       {¶27} Under the second tier, once general immunity has been established, the

burden lies with the plaintiff to establish that one of the exceptions to immunity listed in

R.C. 2744.02(B) applies to expose the political subdivision to liability. Harris v. Sutton,

183 Ohio App.3d 616, 2009-Ohio-4033, 918 N.E.2d 181, ¶ 13 (8th Dist.). Under this

section, political subdivisions are liable for injury caused by (1) the negligent operation of

a motor vehicle by an employee of a political subdivision when the employee is engaged

within the scope of his employment and authority; (2) the negligent performance of acts

by employees engaged in a proprietary function of the political subdivision; (3) the

negligent failure to keep public roads in repair and to remove obstructions from roads; (4)

the negligence of an employee that occurs within or on the grounds of, and is due to

physical defects within or on the grounds of, buildings that are used in connection with

the performance of a governmental function; and (5) when liability is expressly imposed

by the Revised Code.
       {¶28} In his brief in opposition to GCRTA’s motion for summary judgment,

Johnson argued that “it is clear” that GCRTA was involved in a governmental function

and that R.C. 2744.02(B)(4) applied as an exception to GCRTA’s immunity, i.e., that his

injuries occurred on the grounds of a building used in connection with the performance of

a governmental function.      This section does not create an exception to GCRTA’s

immunity, however. R.C. 2744.02(B)(4) requires that the injury was incurred “due to

physical defects within or on the grounds of” a building used in connection with the

performance of governmental functions. Johnson made no allegation nor is there any

factual support for a claim that his alleged injuries were caused due to a physical defect of

the rapid transit station.   Accordingly, R.C. 2744.02(B)(4) is not applicable as an

exception to GCRTA’s immunity.

       {¶29} Apparently recognizing that R.C. 2744.02(B)(4) is inapplicable, Johnson

now contends on appeal that GCRTA was involved in a proprietary function and hence,

that R.C. 2744.02(B)(2) — which provides that a political subdivision is not immune for

the negligent acts of employees engaged in a proprietary function — applies as an

exception to GCRTA’s immunity.

       {¶30} The definitions of “governmental function” and “proprietary function” are

set forth in R.C. 2744.01.      Under R.C. 2744.01(C)(2)(i), a governmental function

includes “the enforcement * * * of any law.” R.C. 2744.01(G)(2)(c) provides that a

proprietary function includes “[t]he establishment, maintenance, and operation of * * * a

busline or other transit company * * *.”
       {¶31} I would find that although the operation of a public transit company is a

proprietary function, Officer Briskey was engaged in a governmental function for

GCRTA at the time of the alleged incident.           R.C. 2917.41, regarding misconduct

involving a public transportation system, provides that, among other things, no person

shall evade payment of the fares of a public transportation system; alter any pass with the

purpose of evading the payment of fares; play sound equipment without the use of an

earphone; smoke, eat, or drink in any area where the activity is marked as prohibited;

deface any facility or vehicle of the public transportation system; fail to comply with a

lawful order of a public transportation system police officer; or resist, obstruct, or abuse a

public transportation police officer in the performance of the officer’s duties. Briskey’s

affidavit, attached to GCRTA’s motion for summary judgment, established that she is

employed as a transit police officer for GCRTA, and that her duties involve “(1)

patrolling assigned areas with the purpose of preventing disorder, criminal activity, and

terrorism; (2) checking fare cards; and (3) maintaining peace and order on the rail, buses,

stations, platform, and any other GCRTA property.” Johnson offered no evidence to

dispute these assertions. Thus, the evidence was undisputed that Officer Briskey is

responsible for enforcing the law, and it is apparent that she was doing exactly that when

she asked Johnson to show his fare card. Because Officer Briskey was engaged in a

governmental function at the time of the alleged incident, there is no R.C. 2744.02(B)

exception to immunity that applies and, accordingly, the trial court erred in denying

GCRTA’s motion for summary judgment.
      {¶32} Furthermore, I would find that even if, as argued by Johnson, the R.C.

2744.02(B)(2) exception to immunity applies, under the third tier of analysis, GCRTA’s

immunity is reinstated under R.C. 2744.03(A)(3). R.C. 2744.03(A)(3) provides that:

      [t]he political subdivision is immune from liability if the action or failure to
      act by the employee involved that gave rise to the claim of liability was
      within the discretion of the employee with respect to policy-making,
      planning, or enforcement powers by virtue of the duties and responsibilities
      of the office or position of the employee.
      {¶33} This court addressed the application of this defense in Fuller v. Cuyahoga

Metro. Hous. Auth., 8th Dist. Cuyahoga No. 92270, 2009-Ohio-4716. In Fuller, the

plaintiff sued the Cuyahoga Metropolitan Housing Authority (“CMHA”), a political

subdivision, relating to rough treatment he suffered during an arrest by CMHA police

officers. Although the case involved an arrest, which this case does not, this court noted

that “police officers have discretion under most circumstances in deciding how to perform

their duties” and “the use of force * * * is related to the ‘enforcement powers’ vested in

police officers.” Id. at ¶ 19-20. Accordingly, this court found that CMHA was immune

from liability because for purposes of R.C. 2744.03(A)(3), “the officers were engaged in

the exercise of discretion in performing their duties * * *.”       See also Vasquez v.

Windham, 11th Dist. Portage No. 2005 P 0068, 2006-Ohio-6342, ¶ 32 (R.C.

2744.03(A)(3) shielded city from liability because police officer’s alleged actions of

failing to identify proper wrongdoer before issuing summons and complaint were within

the discretionary enforcement powers granted to police officers); Englehardt v.

Beavercreek, 2d Dist. Greene No. 91-CA-71, 1992 Ohio App. LEXIS 4136, *4 (Aug.

13, 1992) (police officer’s orders on the scene of a traffic accident were within the
officer’s discretion under R.C. 2744.03(A)(3) by virtue of his powers, duties, and

responsibilities as a police officer).

       {¶34} Likewise, in this case, Officer Briskey was exercising her discretion in

deciding how to perform her duties as a transit police officer during the alleged incident

with Johnson. The majority contends that Johnson’s allegations that Briskey grabbed

his hand, snatched the fare card, and pushed him into a wall, when compared with

Briskey’s affidavit averring that she moved Johnson’s hand from her face but did not

twist his arm, scream at him, or push him into a wall, create an issue of fact regarding

whether she was acting within the discretion afforded to police officers. But as Fuller

makes clear, the use of force is part of the discretionary enforcement powers vested in

police officers.     Furthermore, the Ohio Supreme Court has stated that “R.C.

2744.03(A)(3) does not have language limiting its grant of immunity.          * * * The

immunity exists even if the discretionary actions were done recklessly or with bad faith or

malice.” (Emphasis added.) Elston v. Howland Local Schools, 113 Ohio St.3d 314,

2007-Ohio-2070, 865 N.E.2d 845, ¶ 27. Thus, even if the events happened as Johnson

alleges, GCRTA is immune from liability.

       {¶35} Moreover, Johnson’s complaint concedes that Officer Briskey was acting

within the course and scope of her employment with GCRTA (that is, employment as a

transit police officer that necessarily includes the discretionary enforcement powers

granted to police officers) but asserts that Briskey acted negligently. However, “[t]he

point of R.C. Chapter 2744 is to immunize political subdivisions under certain
circumstances from liability rooted in negligent behavior.” Pope v. Trotwood-Madison

City School Dist. Bd. of Edn., 2d Dist. Montgomery No. 20072, 2004-Ohio-1314, ¶ 29.

Because Officer Briskey’s actions were within her discretion by virtue of her duties as a

transit police officer, GCRTA is immune from liability under R.C. 2744.03(A)(3), and

accordingly, I would find that the trial court erred in denying its motion for summary

judgment.
