[Cite as Moore v. Cleveland, 2017-Ohio-1156.]


                Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA



                            JOURNAL ENTRY AND OPINION
                          Nos. 104466, 104471, 104527, and 104529



                             JOANNE MOORE, ET AL.

                                                      PLAINTIFFS-APPELLANTS

                                                vs.

                        CITY OF CLEVELAND, ET AL.
                                                      DEFENDANTS-APPELLEES



                                 JUDGMENT:
                              AFFIRMED IN PART;
                         REVERSED IN PART; REMANDED


                                  Civil Appeal from the
                         Cuyahoga County Court of Common Pleas
                  Case Nos. CV-10-743088, CV-10-743232, CV-10-743235,
                             CV-10-743237, and CV-11-764319

        BEFORE: S. Gallagher, J., Keough, A.J., and E.A. Gallagher, J.

        RELEASED AND JOURNALIZED: March 30, 2017
ATTORNEYS FOR APPELLANTS

For Joanne Moore, et al.

Jeffrey H. Friedman
Friedman, Domiano & Smith Co., L.P.A.
55 Public Square, Suite 1055
Cleveland, Ohio 44113

Terry H. Gilbert
Friedman & Gilbert
55 Public Square, Suite 1055
Cleveland, Ohio 44113

For Florence Bray

Sara Gedeon
David B. Malik
David B. Malik Co., L.P.A.
8437 Mayfield Road, Suite 101
Chesterland, Ohio 44026

For Gladys Wade and Latundra Billups

Blake A. Dickson
Mark D. Tolles
The Dickson Firm, L.L.C.
Enterprise Place, Suite 420
3401 Enterprise Parkway
Cleveland, Ohio 44122

Daniel Z. Inscore
3 North Main Street, Suite 703
Mansfield, Ohio 44902-1740
ATTORNEYS FOR APPELLEES

For the City of Cleveland, et al.

Barbara A. Langhenry
City of Cleveland
Director of Law
By: Gary S. Singletary
Chief Counsel
City of Cleveland Law Department, Room 106
601 Lakeside Avenue
Cleveland, Ohio 44114

Michael C. O’Malley
Cuyahoga County Prosecutor
By: Barbara R. Marburger
Assistant Prosecuting Attorney
Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113

For Georgia Hussein, et al.

Joseph F. Scott
815 Superior Avenue E., Suite 1325
Cleveland, Ohio 44114




SEAN C. GALLAGHER, J.:
      {¶1} In this consolidated appeal, we review the trial court’s decision to grant

summary judgment in favor of defendants-appellees on the basis of immunity for

employees of a political subdivision. Upon review, we reverse the decision of the trial

court only as to Detective Georgia Hussein. We affirm the decision in favor of the other

appellees.

      BACKGROUND

      {¶2} The four companion cases involved in this appeal were consolidated in the

trial court and were decided by the same summary judgment ruling. Separate appeals

were filed in each case. After appellate briefs were filed, this court consolidated the

cases for oral argument and disposition on appeal.1

      {¶3} The cases involve allegations against four named city of Cleveland police

officers, who are the appellees herein — Lieutenant Michael Baumiller, Sergeant

Antoinette McMahan, 2 Detective Georgia Hussein, and Detective Kristin Rayburn —

regarding their actions surrounding the arrest, investigation, and release of Anthony

Sowell in December 2008.3


      1
        This court consolidated the cases on appeal after briefing was filed in each
case. We have reviewed all the briefs that were filed, thoroughly reviewed the
record before us, and considered all the arguments presented.
      2
       It appears in the record that the name of Sgt. McMahan is often misspelled
as “McMahon.”
      3
        The complaints also included allegations against the city of Cleveland,
Assistant Prosecuting Attorney Lorraine Coyne, and others. This court previously
upheld the trial court’s decision to grant Coyne’s motion for judgment on the
pleadings and the dismissal of the claims against her, upon finding she was entitled
to absolute immunity. Moore v. Cleveland, 8th Dist. Cuyahoga No. 100069,
      {¶4} The underlying facts are succinctly set forth in the trial court’s decision, as

follows:

                                         FACTS

             On December 8, 2008, Gladys Wade ran up to a police car and
      reported that Anthony Sowell punched and choked her, tried to rip off her
      clothes and kill her. The police arrested Sowell on suspicion that he
      attempted to kidnap, rob and rape Wade.

             Arresting officers created an Incident Report which included
      mention of Wade’s clothing retrieved from the premises, a pattern of
      footprints observed in the yard around Sowell’s residence indicative of a
      struggle, blood droplets located on the wall and steps inside the residence, a
      broken window leading to the third floor apartment, and broken glass and
      discarded women’s clothing and panties found in a trash can on the
      premises.

             The incident was referred to the Sex Crimes and Child Abuse Unit
      on December 9, 2008. Defendants Lieutenant Michael Baumiller and/or
      Sergeant Antoinette McMahan assigned the investigation to Detective
      Georgia Hussein. On December 9, 2008, while Sowell was in custody,
      Hussein interviewed Wade, took her statement and attempted to search
      Sowell’s residence. She did not obtain a search warrant to search the
      premises. Hussein then interviewed witnesses at establishments where
      Wade went on the day of the incident. On December 10, 2008, Hussein
      interviewed Sowell. Detective Kristin Rayburn took photographs of Wade
      and Sowell.

             Upon completing her investigation on December 10, 2008, Hussein
      conferred with Assistant City Prosecutor Lorraine Coyne to review Wade’s
      allegations. Having determined that Wade was robbed and not sexually
      assaulted, Hussein did not inform Coyne that Sowell was a convicted sex
      offender because she did not think that Sowell’s criminal background or
      status as a registered sex offender was relevant. Prior to meeting with
      Coyne, Hussein had neither conducted a review of the crime scene nor


2014-Ohio-1426, ¶ 33. The city of Cleveland was dismissed from the action
without prejudice.    We note that R.C. 2744.07(A)(2) provides for employee
indemnification by a political subdivision when certain conditions are met.
reviewed the Incident Report created by the arresting patrol officers.
Hussein did not present Coyne with any crime scene evidence. In total,
Hussein presented Coyne with the Incident Report, the statements of Wade
and Sowell, her personal opinion of Wade’s credibility, and an affidavit for
the charge of robbery.

       Coyne subsequently determined that Sowell would not be charged
and Hussein submitted a Final Disposition Receipt on December 10, 2008
at 4:00 PM authorizing Sowell’s release. (Claims against [Lorraine] Coyne
were previously dismissed on separate motion.) Later that evening,
Hussein visited Sowell’s residence and noticed broken glass on the door.
Despite this visit, no additional information was reported to Coyne or
anyone else. On December 11, 2008, Defendant McMahan reviewed and
approved Hussein’s investigation of the incident.

       In October 2009, Cleveland Police investigated an incident involving
a naked woman falling from a window of Sowell’s residence. The police
obtained a search warrant for Sowell’s residence and discovered human
remains in and around his home. Sowell was subsequently arrested on
October 31, 2009 and charged. On July 22, 2011, a jury convicted Sowell
of multiple counts of aggravated murder, attempted murder, rape,
kidnapping and other offenses. The jury verdict also included findings of
guilt related to the kidnapping, attempted murder, attempted rape and
felonious assault of Wade.

                    CONSOLIDATED COMPLAINTS

       Claims made in the Consolidated Complaints allege that individual
Defendants Rayburn, Baumiller, McMahan and Hussein were grossly
negligent, willful, wanton and reckless in the discharge of their duties by
releasing Sowell after his arrest on December 8, 2008. Plaintiffs further
claim that Defendants negligently inflicted extreme emotional distress upon
Plaintiffs. Plaintiffs each seek relief in the form of monetary damages for
their loss and/or injury, review of policies related to investigations of
alleged sex crimes, attorney fees and punitive damages.

       Defendants deny liability and move[d] for summary judgment based

upon governmental immunity pursuant to R. C. 2744 et seq. Defendants

also deny liability based upon the public-duty rule.
       DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

       {¶5} The record reflects that in their motion for summary judgment, which was

filed December 8, 2014, appellees sought immunity under R.C. 2744.03(A)(6).

Appellees claimed that “[e]ach of the Defendants is immune under R.C. 2744.03(A)(6)

and has no liability in these cases as a matter of law as they did not violate any duty owed

to Plaintiffs and/or Plaintiffs’ decedents.”

       {¶6} Contrary to the trial court’s statement, appellees did not rely upon the

public-duty rule. In fact, they specifically indicated in their motion that they were “not

invoking the public duty rule.” They have reiterated this on appeal and agree that the

public-duty rule does not apply in this case. There is no dispute that the public-duty rule

does not apply with respect to the R.C. 2744.03(A)(6)(b) exception to immunity for

wanton and reckless conduct. Estate of Graves v. Circleville, 124 Ohio St.3d 339,

2010-Ohio-168, 922 N.E.2d 201, ¶ 20-22.

       {¶7} Instead, appellees asserted in their motion for summary judgment that they

remained protected by traditional tort concepts of duty. They argued that in the absence

of a special relationship with Sowell, the Cleveland police defendants had no duty with

regard to the third-party criminal acts of Sowell following his release from custody.

Further, appellees maintained that in the absence of a legal duty, political subdivision

employees are insulated from liability even when allegations of wanton and reckless

conduct are raised in the context of R.C. 2744.03(A)(6)(b).

       TRIAL COURT’S SUMMARY JUDGMENT RULING
       {¶8} In granting summary judgment in favor of appellees, the trial court

recognized that the public-duty rule is inapplicable. However, the trial court found a

duty to exist and determined that “Revised Code Chapter 2744 et seq. imposes upon

government employees the duty not to discharge or omit to discharge their duties with

malicious purpose, in bad faith, or in a wanton or reckless manner.               See, R.C.

2744.03(A)(6)(b).”

       {¶9} The trial court proceeded to address the R.C. 2744.03(A)(6)(b) exception to

immunity for employees of a political subdivision. The trial court found that “[p]laintiffs

have failed to produce evidence displaying malicious purpose or bad faith on the part of

the Defendants in carrying out their investigative duties. There is nothing in the record

indicating that any of the Defendants wanted to see harm result to any of the Plaintiffs.”

       {¶10} The trial court also found that “the record is also devoid of evidence

displaying any wanton misconduct or recklessness.”         The trial court found from its

review of the record that “the Defendants did not fail to ‘exercise any care whatsoever’

and consequently did not discharge their duties in a wanton manner.” The trial court

further recognized that “[t]he involvement of the supervisory Defendants was limited to

Lt. Baumiller and/or Sgt. McMahan assigning the matter to a detective and the

subsequent review and approval of Hussein’s investigation by Sgt. McMahan[,]” that

“[t]he entire involvement of Rayburn appears to be limited to taking photographs of

Sowell on two occasions[,]” and that “Hussein’s conduct does not legally rise to the level

of recklessness * * *.”
       {¶11} Plaintiffs-appellants have appealed the trial court’s ruling.      All of the

assignments of error relate to the trial court’s decision to grant summary judgment.

       STANDARD OF REVIEW AND
       POLITICAL-SUBDIVISION EMPLOYEE IMMUNITY

       {¶12} We review the grant of summary judgment on the issue of immunity de

novo using the standard set forth in Civ.R. 56. Argabrite v. Neer, Slip Opinion No.

2016-Ohio-8374, ¶ 14. Summary judgment is appropriate only when “[1] no genuine

issue of material fact remains to be litigated, [2] the moving party is entitled to judgment

as a matter of law, and, [3] viewing the evidence most strongly in favor of the nonmoving

party, reasonable minds can reach a conclusion only in favor of the moving party.” Id.

       {¶13} R.C. Chapter 2744 governs political subdivision tort liability.           R.C.

2744.03(A) prescribes the defenses or immunities that a political-subdivision employee

may assert to establish nonliability in a civil action for damages allegedly caused by an

act or omission in connection with a governmental or proprietary function. Argabrite at

¶ 7. As applicable in this matter, R.C. 2744.03(A)(6)(b) provides that an employee of a

political subdivision is immune from liability unless “[t]he employee’s acts or omissions

were with malicious purpose, in bad faith, or in a wanton or reckless manner[.]” This

section applies to law-enforcement officers the same as it applies to other employees of

political subdivisions. Argabrite at ¶ 7. However, we shall “bear in mind that while

many public employees face the potential for liability under R.C. 2744.03, no other public

employee faces the potential danger, violence or unique statutory responsibilities a

law-enforcement officer faces.” Id. at ¶ 15.
      {¶14} “Malicious purpose” has been defined as “the willful and intentional design

to injure or harm another, generally seriously, through unlawful or unjustified conduct.”

Jones v. Norwood, 1st Dist. Hamilton No. C-120237, 2013-Ohio-350, ¶ 42. “Bad faith”

has been defined as “evincing a ‘dishonest purpose, conscious wrongdoing, the breach of

a known duty through some ulterior motive or ill will, as in the nature of fraud, or an

actual intent to mislead or deceive another.’” Id., quoting Cook v. Cincinnati, 103 Ohio

App.3d 80, 90-91, 658 N.E.2d 814 (1st Dist.1995).

      {¶15} The Ohio Supreme Court has defined the terms “wanton misconduct” and

“reckless conduct” as follows:

      This court has defined “wanton misconduct” as “the failure to exercise any

      care toward those to whom a duty of care is owed in circumstances in which

      there is great probability that harm will result.”      (Emphasis added.)

      Anderson [v. Massillon], 134 Ohio St. 3d 380, 2012-Ohio-5711, 983 N.E.2d

      266, at paragraph three of the syllabus. And we have defined “reckless

      conduct” as conduct “characterized by the conscious disregard of or

      indifference to a known or obvious risk of harm to another that is

      unreasonable under the circumstances and is substantially greater than

      negligent conduct.”    Id. at paragraph four of the syllabus.    These are

      rigorous standards that will in most circumstances be difficult to establish

      * * *.

(Emphasis added.) Argabrite, Slip Opinion No. 2016-Ohio-8374, at ¶ 8.
       {¶16} We recognize that whether an employee acted with malicious purpose, in

bad faith, or in a wanton or reckless manner is generally a question of fact for the jury.

See Fabrey v. McDonald Village Police Dept., 70 Ohio St.3d 351, 356, 1994-Ohio-368,

639 N.E.2d 31. However, whether an employee of a political subdivision is entitled to

immunity under R.C. 2744.03(A)(6) remains a question of law to be determined by the

court. Conley v. Shearer, 64 Ohio St.3d 284, 292, 1992-Ohio-133, 595 N.E.2d 862.

Thus, upon our review, “we must determine whether, based on the evidence in the record,

reasonable minds could conclude that any of the officers acted ‘with malicious purpose,

in bad faith, or in a wanton or reckless manner’ so as to preclude immunity.” Argabrite

at ¶ 15.

       ANALYSIS

       Duty

       {¶17} The focus of appellees’ immunity argument is their claim that they remain

insulated from liability in the context of R.C. 2744.03(A)(6)(b), in the absence of a legal

duty. 4 Appellees point to the Estate of Graves decision in which the Ohio Supreme

Court stated that “[t]he absence of the public-duty rule will not automatically result in the

creation of new duties and new causes of action” and that “[i]f a claimant cannot establish

the existence of a duty, the political subdivision’s employee is insulated from liability

even in the face of allegations of wanton and reckless conduct.” Estate of Graves, 124

Ohio St.3d 339, 2010-Ohio-168, 922 N.E.2d 201, at ¶ 25.


       4
           We note that appellees assert the absence of a duty as an alternative basis
       {¶18} Appellees maintain that the existence of a legal duty must be established

using conventional tort principles. They cite to Wallace v. Ohio Dept. of Commerce, 96

Ohio St.3d 266, 2002-Ohio-4210, 773 N.E.2d 1018, in which the Ohio Supreme Court

stated that “[a] state defendant, just like any private defendant, remains protected by

traditional tort concepts of duty, including foreseeability and pertinent public-policy

considerations.” ¶ 38. In discussing the existence of a legal duty using conventional tort

principles, the court stated the following:

               “Duty, as used in Ohio tort law, refers to the relationship between the
       plaintiff and the defendant from which arises an obligation on the part of
       the defendant to exercise due care toward the plaintiff.” Commerce &
       Industry Ins. Co. [v. Toledo (1989)], 45 Ohio St.3d [96,] 98, 543 N.E.2d
       1188; see, also, Huston v. Konieczny (1990), 52 Ohio St.3d 214, 217, 556
       N.E.2d 505. This court has often stated that the existence of a duty
       depends upon the foreseeability of harm: if a reasonably prudent person
       would have anticipated that an injury was likely to result from a particular
       act, the court could find that the duty element of negligence is satisfied.
       Texler v. D.O. Summers Cleaners & Shirt Laundry Co. (1998), 81 Ohio
       St.3d 677, 680, 693 N.E.2d 271; Commerce & Industry, 45 Ohio St.3d at
       98, 543 N.E.2d 1188; Menifee v. Ohio Welding Products, Inc. (1984), 15
       Ohio St.3d 75, 77, 15 OBR 179, 472 N.E.2d 707. In addition, we have also
       stated that the duty element of negligence may be established by common
       law, by legislative enactment, or by the particular circumstances of a given
       case. Chambers v. St. Mary’s School (1998), 82 Ohio St.3d 563, 565, 697
       N.E.2d 198; Eisenhuth v. Moneyhon (1954), 161 Ohio St. 367, 53 O.O. 274,
       119 N.E.2d 440, paragraph one of the syllabus. Admittedly, however, the
       concept of duty in negligence law is at times an elusive one.

Wallace at ¶ 23.




to uphold the trial court’s decision. A cross-appeal was not required to be filed.
See App.R. 3(C)(2); R.C. 2505.22; Parton v. Weilnau, 169 Ohio St. 145, 170-171, 158
N.E.2d 719 (1959).
       {¶19} In Wallace, the court recognized the requirement of a “special relation” in

certain actions. The court stated that “our tort law already requires a special relationship

in order to satisfy the duty element in certain types of negligence actions, such as actions

based on failure to act or failure to control the conduct of a third person.” Id. at ¶ 38.

The Ohio Supreme Court also has recognized that although “the existence of a duty

depends on the foreseeability of the injury[,]” there remains “no duty under Ohio law to

control the conduct of another person so as to prevent him from causing physical harm to

another unless a ‘special relation’ exists[.]” Littleton v. Good Samaritan Hosp. & Health

Ctr., 39 Ohio St.3d 86, 92, 529 N.E.2d 449 (1988). “Such a ‘special relation’ exists

when one takes charge of a person whom he knows or should know is likely to cause

bodily harm to others if not controlled.” Id., citing 2 Restatement of the Law 2d, Torts,

Section 319 (1965).

       {¶20} Appellees claim that they remain protected by traditional tort concepts and

that there is no common-law duty to anticipate or foresee criminal activity. They claim

that in the absence of a “special relationship,” they cannot be held liable for the

third-party criminal acts of Sowell. They cite to Bush v. Ashland Cty., 5th Dist. Ashland

No. 09-CA-25, 2010-Ohio-1732, in which the court found that “[i]n the absence of this

special relationship, a defendant cannot be held liable for failing to exercise control over

the actions of a third party so as to protect others from harm.” Id. at ¶ 33 (finding no

legal duty to protect individuals from crimes of a third party absent a custodial situation).

They also cite to Clemets v. Heston, 20 Ohio App.3d 132, 485 N.E.2d 287 (6th
Dist.1985), in which the court recognized that “special relations do not extend infinitely”

and that the special relation between the custodial officer and prisoner terminated when

the arrestee-prisoner was free to leave. Id. at 138 (involving duty owed to the released

prisoner).

       {¶21} We recognize that the cases cited regarding “duty” by the opposing parties

to this appeal are distinguishable from the case at hand. Furthermore, the Ohio Supreme

Court has not addressed traditional tort concepts of “duty” in the context of the immunity

analysis under R.C. 2744.03(A)(6)(b), nor has the issue been before it.

       {¶22} In Argabrite, the Ohio Supreme Court recognized that law-enforcement

officers have a statutory duty “to arrest and detain a person who is violating the law, R.C.

2935.03(A)(1),” and may face “potential criminal liability for negligently failing to do so,

R.C. 2921.44(A)(2).”      Argabrite, Slip Opinion No. 2016-Ohio-8374, at ¶ 8, 15.

However, the court was not presented with the issue of whether traditional tort concepts

involving duty are to be considered when conducting the immunity analysis under R.C.

2744.03(A)(6). Although duty is an element of a tort claim, the law is silent as to the

relation of “duty” to the immunity analysis. We believe this is an issue that should be

considered by the Ohio Supreme Court.

       {¶23} In Argabrite, the Ohio Supreme Court indicated that when immunity is

asserted under R.C. 2744.03(A)(6), a court must analyze the case under the immunity

statute. Argabrite at ¶ 9. We find significant that R.C. 2744.03(A)(6)(b) makes no

mention of “duty.” “When a plaintiff files a civil action against an employee of a
political subdivision, the employee’s entitlement to statutory immunity is a separate

question from the plaintiff’s ability to establish the elements of his or her claim.”

Argabrite at ¶ 10.

       {¶24} We must follow the legislative dictates of the law. “Ohio courts lack the

authority to confer immunity based on a different standard than the General Assembly has

implemented.” Argabrite at ¶ 12. “With R.C. 2744.03(A)(6)(b), the General Assembly

‘expressly removed immunity from employees of a political subdivision for wanton or

reckless conduct.’” Argabrite at ¶ 12, citing Anderson, 134 Ohio St.3d 380,

2012-Ohio-5711, 983 N.E.2d 266, at ¶ 23; see also Estate of Graves, 124 Ohio St.3d 339,

2010-Ohio-168, 922 N.E.2d 201, at ¶ 22-23. Accordingly, this appeal is limited to the

question of statutory immunity, and we are bound to analyze the case in conformance

with the express legislative mandate in R.C. 2744.03(A)(6)(b).

       R.C. 2744.03(A)(6)(b) Immunity Exception

       {¶25} We disagree with appellants’ contention that the trial court granted summary

judgment on grounds not specified in appellees’ motion for summary judgment. Where a

party moves for summary judgment on the basis of political-subdivision immunity under

R.C. 2744.03(A)(6)(b), the court must determine “whether, based on the evidence in the

record, reasonable minds could conclude that any of the officers acted ‘with malicious

purpose, in bad faith, or in a wanton or reckless manner’ so as to preclude immunity.”

See Argabrite, Slip Opinion No. 2016-Ohio-8374, at ¶ 15. The trial court conducted the
required analysis.   Accordingly, we shall review the record to determine whether

summary judgment is warranted under R.C. 2744.03(A)(6)(b).

       {¶26} To be entitled to immunity under R.C. Chapter 2744 et seq., an employee

of a political subdivision must not act with malicious purpose, in bad faith, or in a wanton

or reckless manner in connection with the performance of a governmental or proprietary

function. See R.C. 2744.03(A)(6)(b). The Ohio Supreme Court has recognized, “[a]n

officer’s role in our society creates a unique lens through which to view his or her actions

and through which to determine whether those actions may have been malicious, in bad

faith, wanton or reckless.” Argabrite at ¶ 16. Further, we are cognizant that “the

Revised Code purposely provides for a high threshold that must be overcome before an

employee of a political subdivision is denied immunity.” Chaney v. Norwood, 189 Ohio

App.3d 124, 2010-Ohio-3434, 937 N.E.2d 634, ¶ 13 (1st Dist.).

       {¶27} Appellants contend that reasonable minds could find that appellees carried

out their governmental functions relative to the investigation of the December 8, 2008

incident and the release of Sowell, with malicious purpose, in bad faith, or in a wanton or

reckless manner so as to preclude immunity. Insofar as the governmental functions

relate to appellees’ investigative duties, it is well recognized that law enforcement

officers have a duty to investigate criminal conduct and to develop and maintain evidence

of a crime, and are “charged with the duty to ‘prevent crime, preserve the peace, and

protect persons and property.’”     State v. Lunder, 8th Dist. Cuyahoga No. 103653,

2017-Ohio-84, ¶ 18, quoting State v. Russell, 127 Ohio App.3d 414, 417, 713 N.E.2d 56
(9th Dist.1998). They also have the statutory duty to arrest and detain a person who is

violating the law. Argabrite at ¶ 8, citing R.C. 2935.03(A)(1).

       {¶28} Appellants claim that Det. Hussein, along with Det. Rayburn who assisted

her, failed to thoroughly investigate Wade’s complaints against Sowell.        Appellants

claim that Lt. Baumiller and Sgt. McMahan failed to supervise Det. Hussein’s

investigation of the incident, failed to ensure the incident was thoroughly investigated,

and failed to review the results of the investigation. Appellants argue that a reasonable

investigation would have shown that probable cause existed to detain and charge Sowell

for crimes he committed against Wade. Appellants point to the opinion of their expert,

Joseph M. Matthews, who reviewed the conduct of appellees and opined that appellees

acted in a reckless and wanton manner and showed a reckless disregard for the safety of

others, including appellants and the decedents.5 Appellants argue that “[h]ad [appellees]

conducted a proper investigation, as was done a year later, [the prosecutor] would have

had sufficient evidence to pursue criminal charges against Anthony Sowell, and he would

have remained in jail,” rather than be released and permitted to commit additional violent

crimes.

       {¶29} We shall consider the R.C. 2744.03(A)(6)(b) immunity exception with

regard to each of the appellees.


       5
         Insofar as appellants presented an expert opinion, we recognize that the
legal conclusions reached by an expert do not always alter the outcome in a case.
See Johnson v. Cleveland, 194 Ohio App.3d 355, 2011-Ohio-2152, 956 N.E.2d 355, ¶
27 (8th Dist.).
       Det. Rayburn

       {¶30} At the time of the investigation of the December 8, 2008 incident, Det.

Rayburn was employed in the Crime Scene Unit of the Cleveland Police Department and

her job duties included collecting and preserving evidence. Det. Rayburn testified in her

deposition that when she receives a request to assist on a case, all she receives is a crime

title and any details specific to where she would need to photograph an individual. She

testified that she was contacted by Det. Hussein to go to the jail to take photographs of the

suspect, Anthony Sowell, and that the following day she was sent to take some additional

photographs of Sowell. Det. Rayburn testified that taking these photographs “was my

entire involvement” in the case. Upon our review, we find that no reasonable juror could

find that Det. Rayburn acted with malicious purpose, in bad faith, or in a wanton or

reckless manner.

       Lt. Baumiller and Sgt. McMahan

       {¶31} At the time of the December 8, 2008 incident, Lt. Baumiller was the

officer in charge of the Sex Crimes Unit of the Cleveland Police Department. His job

required him to “keep the place running well, scheduling, reviewing investigative files,

reviewing overtime cards, duty reports, Grand Jury packets” as well as occasional

involvement in assisting detectives.     Lt. Baumiller assigned the Wade case to Det.

Hussein. Lt. Baumiller testified that the detective assigned to a case makes the decision

whether the necessary investigative elements are in place to go to the prosecutor.
       {¶32} Sgt. McMahan worked as an administrative sergeant in the Sex Crimes Unit.

 She stated that her job duties involved “handl[ing] the paperwork, the assigning of

reports, the reviewing of cases and just general observing [,]” as well as offering guidance

to the detectives when they have questions. Sgt. McMahan indicated that the detectives

have investigative duties and present the case to the prosecutor after gathering evidence.

Her recollection of the case was that it was assigned to Det. Hussein and that Det.

Hussein had consulted with the prosecutor. She acknowledged that when closing out the

case, she would have reviewed the case to see if anything was lacking. She stated that

she would have looked to see if Det. Hussein had interviewed the victim and taken

witness statements, and she would have checked for photographs. The record reveals

Det. Hussein performed these tasks in the course of her investigation. She indicated that

“it’s not a review of her investigative techniques[.]” Sgt. McMahan testified that Det.

Hussein had informed her that Wade was not happy with the prosecutor’s decision not to

prosecute, and that Det. Hussein had advised Wade to contact a supervisor if she had

concerns, but Sgt. McMahan never received a call from Wade.

       {¶33} Undoubtedly, the record raises concerns over the conduct of appellees in

their investigation and review of the December 8, 2008 incident. However, insofar as

appellants maintain that Lt. Baumiller and Sgt. McMahan failed to adequately supervise

and review the investigation, and failed to adhere to departmental policy, this

demonstrated negligence at best. “Evidence of a violation of departmental policy does

not create a genuine issue of material fact as to whether the violator acted with malicious
purpose, in bad faith or in a wanton or [reckless] manner without evidence that the

violator was aware that his ‘conduct [would] in all probability result in injury.’”

Argabrite, Slip Opinion No. 2016-Ohio-8374, at ¶ 25, quoting O’Toole v. Denihan, 118

Ohio St.3d 374, 2008-Ohio-2574, 889 N.E.2d 505, at paragraph three of the syllabus.

There is simply a lack of evidence upon which reasonable minds could find that the

conduct of Lt. Baumiller and Sgt. McMahan rose to the level of malicious purpose, in bad

faith, or in a wanton or reckless manner as those terms are legally defined.

       Det. Hussein

       {¶34} Initially, we conclude that the record contains no evidence that Det. Hussein

acted with a malicious purpose, which requires a willful and intentional design to injure

or harm another. Likewise, there is no evidence that she acted in bad faith, which

requires an ulterior motive or ill will. Our review is focused upon whether there is

evidence upon which reasonable minds could find Det. Hussein acted in a wanton or

reckless manner.      These are “different and distinct degrees of care and are not

interchangeable.” Anderson, 134 Ohio St.3d 380, 2012-Ohio-5711, 983 N.E.2d 266, at

paragraph one of the syllabus.

       {¶35} “Wanton misconduct” requires a “‘failure to exercise any care toward those

to whom a duty of care is owed in circumstances in which there is great probability that

harm will result.’”    Argabrite, at ¶ 8, quoting Anderson at paragraph three of the

syllabus. The record reflects that Det. Hussein conducted an investigation, gathered

certain evidence, and presented the case to the prosecutor.
       {¶36} On December 9, 2008, Det. Hussein was given the investigative assignment

for the incident involving Wade. She contacted Wade, interviewed her, and obtained a

witness statement. Det. Hussein found there were some inconsistencies with Wade’s

statement because Wade had indicated she was twice punched in the face, but Det.

Hussein did not see any visible bruising to her face. Det. Hussein also found that the

initial report indicated the incident involved a sex crime, but Wade stated that the man,

who was Sowell, asked her to remove her pants, she said no, and that the man did not do

anything sexual to her. The record also reflects that Wade had reported that she had

taken soiled underwear off at her sister’s house, but that she had it in a bag with her

sweatpants when she encountered Sowell.

       {¶37} On December 10, 2008, Hussein took a statement from Sowell, who offered

a different version of events. Det. Hussein also went to the crime scene, though she did

not have entry to Sowell’s house, and she spoke with witnesses at establishments

referenced by Wade in her statement. Det. Hussein checked Sowell’s criminal record.

She requested Det. Rayburn to take photographs of Sowell. Det. Hussein presented the

file of evidence she had gathered to the prosecutor, which included the statements of

Wade and Sowell, the offense/incident report that was prepared when Sowell was

arrested, and an affidavit addressing robbery signed by Wade.

       {¶38} Upon this record, no reasonable juror could find “wanton misconduct” since

the record fails to evince a “failure to exercise any care.”
       {¶39} “Reckless conduct” is conduct that is “‘characterized by the conscious

disregard of or indifference to a known or obvious risk of harm to another that is

unreasonable under the circumstances and is substantially greater than negligent

conduct.’” Argabrite, Slip Opinion No. 2016-Ohio-8374, at ¶ 8, quoting Anderson, 134

Ohio St.3d 380, 2012-Ohio-5711, 983 N.E.2d 266, at paragraph four of the syllabus. In

considering the term “reckless” under the R.C. 2744.03(A)(6)(b) exception to immunity,

the Ohio Supreme Court has also referenced the definition from the Restatement of Torts

2d. O’Toole, 118 Ohio St.3d 374, 2008-Ohio-2574, 889 N.E.2d 505, at ¶ 73. The

Restatement of Torts 2d defines a “reckless disregard of safety” as follows:

       The actor’s conduct is in reckless disregard of the safety of another if he
       does an act or intentionally fails to do an act which it is his duty to the other
       to do, knowing or having reason to know of facts which would lead a
       reasonable man to realize, not only that his conduct creates an unreasonable
       risk of physical harm to another, but also that such risk is substantially
       greater than that which is necessary to make his conduct negligent.

2 Restatement of the Law 2d, Torts, Section 500 (1979).

       {¶40} “Distilled to its essence, and in the context of R.C. 2744.03(A)(6)(b),

recklessness is a perverse disregard of a known risk.” O’Toole at ¶ 73. It “necessarily

requires something more than mere negligence” and “‘the actor must be conscious that his

conduct will in all probability result in injury.’” Id. at ¶ 74, quoting Fabrey, 70 Ohio

St.3d at 356, 1994-Ohio-368, 639 N.E.2d 31.

       {¶41} In O’Toole, the Ohio Supreme Court found that a children services agency

and its employees were entitled to immunity in their handling of a case referral of a child

who had marks on her body, but was not removed from the home, and subsequently died
from abuse. Id. With regard to R.C. 2744.03(A)(6)(b), it was the conduct of the intake

supervisor, who determined not to remove the child from the home, that was at issue. Id.

at ¶ 72. The investigating social worker for the agency had interviewed the child and her

mother; she spoke to the child’s teacher, the daycare center’s nurse, and other necessary

parties; she took photographs of the marks on the child; she consulted with the intake

supervisor overseeing the case; she prepared a safety plan; and she visited the home. Id.

at ¶ 13-26. The intake supervisor did not feel he had grounds to remove the child from

the home because a safety plan was in place, the home was clean and free of any hazards,

a background check on the child’s mother came back negative, and the mother appeared

to be cooperating. Id. at ¶ 76. In considering whether the intake supervisor could be

held liable for reckless conduct under R.C. 2744.03(A)(6)(b), the Ohio Supreme Court

found that his conduct did not rise to the level of recklessness because the record reflected

that he did not perversely ignore a known risk. Id. at ¶ 92.

       {¶42} The court in O’Toole referenced Hahn v. Wayne Cty. Children Servs., 9th

Dist. Wayne No. 00CA0029, 2001 Ohio App. LEXIS 2060 (May 9, 2001), which the

court indicated was a case with facts that “clearly show what constitutes a perverse

disregard of a known risk.” O’Toole, 118 Ohio St.3d 374, 2008-Ohio-2574, 889 N.E.2d

505, at ¶ 90, citing Hahn. The court stated that “[t]he evidence in Hahn revealed that the

agency’s employees ‘knowingly placed a foster child with a history of sexually abusing

younger children with first-time foster parents who had young children, without warning

the family about the foster child’s deviant sexual behavior.’” O’Toole at ¶ 89, quoting
Hahn at 14. That foster child then sexually assaulted a seven-year-old child in the

Hahns’ home. O’Toole at ¶ 88, citing Hahn.

       {¶43} Unlike the O’Toole case, the record herein contains evidence upon which a

reasonable juror could find a perverse disregard of a known risk. Further, similar to

Hahn, Det. Hussein’s conduct was with regard to a known offender.

       {¶44} Appellants presented evidence that Det. Hussein failed to conduct a

thorough investigation. Sowell was arrested on suspicion of having kidnapped, robbed,

and attempted to rape Wade. Det. Hussein never spoke to the officers who were at the

scene, arrested Sowell, and prepared the offense/incident report. She did not review any

physical evidence obtained from the crime scene or review crime-scene photographs,

even though they were referenced in the offense/incident report. She never viewed the

crime scene after the arrest and did not obtain a search warrant. She never requested

Wade’s medical records, despite having obtained a medical release authorization from

Wade. She never spoke to the manager on duty at the store Wade had been to prior to

her attack.

       {¶45} Also, appellants presented evidence that Det. Hussein failed to provide

relevant information to the prosecutor. She did not tell the prosecutor that she had not

viewed the crime scene. She did not tell the prosecutor about any physical evidence that

had been obtained by the officers during their search of Sowell’s house. She did not

obtain the crime-scene photographs to present to the prosecutor. She did not present

photographs of Wade’s injuries or inform the prosecutor that Wade’s thumb had been cut
by broken glass from a door in Sowell’s house. She did not present any photographs

relative to Sowell. Det. Hussein prepared an affidavit for robbery only, signed by Wade,

that she presented to the prosecutor. She told the prosecutor she had concerns about

inconsistencies in Wade’s statements. She failed to inform the prosecutor of Sowell’s

status as a convicted felon for attempted rape, and she did not recall informing the

prosecutor that Sowell was a registered sex offender.          She did not believe the

information was relevant. On the felony review form, the prosecutor determined there

was “insufficient evidence” and that the victim was “not credible.”

       {¶46} Further, appellants presented evidence to show Det. Hussein acted with

knowledge of risk. Det. Hussein was aware of Sowell’s prior conviction and his status

as a registered sex offender. On December 9, 2008, she made a first request to hold

Sowell in custody for an additional 24 hours so that she could conduct further

investigation. She made a second request to hold Sowell in custody for an additional 24

hours after she met with the prosecutor and Sowell had been released from jail. She then

visited Sowell at his house and observed that the glass on the door had been broken.

However, she did not provide any new information to the prosecutor or report anything

regarding her visit.

       {¶47} Viewing the evidence in a light most favorable to appellants, we find that

reasonable minds could conclude that Det. Hussein acted in a reckless manner.

Therefore, as to Det. Hussein only, summary judgment on the basis of immunity was not

warranted.
         CONCLUSION

         {¶48} Unless the Ohio Supreme Court determines otherwise, we do not consider

traditional tort concepts of “duty” in the context of the immunity analysis under R.C.

2744.03(A)(6).     We shall continue to follow the express legislative dictate in R.C.

2744.03(A)(6)(b) that precludes immunity for an employee of a political subdivision who

engages in wanton or reckless conduct in connection with a governmental or proprietary

function.

         {¶49} As to Det. Hussein only, we reverse the decision of the trial court and

conclude that summary judgment on the basis of immunity is not warranted because, from

the evidence in the record, reasonable minds could conclude that Det. Hussein acted in a

reckless manner. We affirm the trial court’s decision to grant summary judgment to the

remaining appellees because there is no evidence that these officers acted with malicious

purpose, in bad faith, or in a wanton or reckless manner.

         {¶50} Additionally, we note that in each of the underlying complaints, the assistant

prosecutor named in the action was misidentified as “Loretta” Coyne, rather than properly

identifying Lorraine Coyne as a defendant in the actions.           Also, Attorney Loretta

Coyne’s business address was improperly used.               The dockets reflect repeated

misidentifications of said defendant, who has since been dismissed from the case. Upon

remand, the trial court and counsel are instructed to correct the record with the clerk of

court.

         {¶51} Judgment affirmed in part, reversed in part; case remanded.
      It is ordered that appellants and appellees share 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.



SEAN C. GALLAGHER, JUDGE

KATHLEEN ANN KEOUGH, A.J., and
EILEEN A. GALLAGHER, J., CONCUR
