[Cite as Doe v. Cleveland Metro. School Dist., 2012-Ohio-2497.]


                Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 97177


                                    JANE DOE, ET AL.

                                                           PLAINTIFFS-APPELLANTS

                                                     vs.

             CLEVELAND METROPOLITAN SCHOOL
                     DISTRICT, ET AL.
                                                           DEFENDANTS-APPELLEES



                                           JUDGMENT:
                                            AFFIRMED


                                     Civil Appeal from the
                               Cuyahoga County Common Pleas Court
                                    Case No. CP CV-714388

        BEFORE: E. Gallagher, J., Cooney, P.J., and Keough, J.

        RELEASED AND JOURNALIZED:                          June 7, 2012
ATTORNEY FOR APPELLANT

William A. Carlin
Carlin & Carlin
29325 Chagrin Blvd.
Suite 305
Pepper Pike, Ohio 44122

ATTORNEYS FOR APPELLEES

For City of Cleveland and
James Box

Barbara Langhenry
Interim Director of Law
William F. Gibson
Assistant Director of Law
City of Cleveland
601 Lakeside Avenue, Rm. 106
Cleveland, Ohio 44114

For Amer-I-Can Foundation
For Social Change

Douglas L. Winston
Berger & Zavesky Co., LPA
1425 Rockefeller Building
614 West Superior Ave., #1425
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, J.:

      {¶1} Plaintiff-appellant, Jane Doe, appeals the trial court’s orders granting

summary judgment in favor of defendant-appellee, James Box, and a motion to dismiss

in favor of defendant-appellee, the city of Cleveland (the “City”). Appellant further

appeals the trial court’s order striking appellant’s motion for summary judgment against

the City. We affirm.

      {¶2} Amer-I-Can is a private, nonprofit organization dedicated to assisting

individuals, including at-risk youths, to take responsibility and be accountable for their

lives. Amer-I-Can implements its program in schools, prisons, juvenile facilities and

youth development centers in a number of states across the country. To teach its

program, Amer-I-Can typically hires individuals who have been disregarded by

mainstream society, due to their involvement in gang violence, to serve as “facilitators”

— many of whom have been previously convicted of felonies.

      {¶3} Prior to 2006, while Amer-I-Can was anticipating receipt of a federal grant

relating to the Cleveland area, Box, an employee on the City’s Community Relations

Board and occasional consultant for the Amer-I-Can program, selected and trained eight

individuals to become facilitators of the program in advance of the anticipated grant.

Box had been involved with the Amer-I-Can program since 1990 and was paid on a per

job contract basis by Amer-I-Can.
          {¶4} All eight of the facilitators, including Jamill McDonald, 1 had felony

convictions that Box was aware of at the time. Prior to Ameri-I-Can hiring these

individuals, however, background checks were performed to see if the applicants met the

requisite criteria to serve as facilitators in schools, which meant they could not have any

sex crime or domestic violence convictions.          The facilitators received domestic

violence and sexual harassment training.

          {¶5} In February 2006, Amer-I-Can received a $300,000 federal grant through

the City to implement its program in an “Empowerment Zone,” which included certain

Cleveland schools.      One of the schools in which the Amer-I-Can program was

implemented was George Washington Carver Elementary School where appellant was a

student in the eighth grade.

          {¶6} After the grant was received, the Urban League of Greater Cleveland was

eventually designated as the “managing service organization” in charge of the day-to-day

operations and decision-making regarding the implementation of the Amer-I-Can

program in the Cleveland schools.     The Urban League did not consult Box regarding

day to day operations. The City’s remaining involvement with the program was through

Box, who was appointed by Mayor Campbell to act as the City’s “liaison” to the

program. As the liaison, Box’s duties consisted of overseeing the operation of the

program by going to the schools “to see how things were going from time to time” and


       McDonald had been convicted of aggravated robbery for which he served
      1


three years in prison. (McPike Dep. Tr. 21:15-17).
meeting with each principal to make sure “everything was going well” but he did not

have any “hands on” involvement with the program. He was also the employee at the

City whom the involved parties contacted regarding any problems they were having with

the program. Box did not facilitate the implementation of Amer-I-Can’s program in the

schools and any authorization or decision regarding this implementation “was above

[him].” Furthermore, Box was not paid by Amer-I-Can for any of his work as the City’s

liaison to the program.

       {¶7} Appellant reported that she had been sexually assaulted by Jamill

McDonald in June of 2006.        Appellant had graduated in May but she had been a

student in the class wherein McDonald served as facilitator of the Amer-I-Can program.

McDonald initially contacted appellant through a cell phone number that appellant had

provided. McDonald was charged with rape, gross sexual imposition, kidnapping and

unlawful sexual conduct with a minor based upon Jane Doe’s allegations.        McDonald

ultimately pled guilty to sexual imposition, a third degree misdemeanor, with a Tier I sex

offender classification.

       {¶8} As a result of the foregoing, appellant brought suit against the City and

Box, along with other parties, alleging that they were negligent and/or reckless by

allowing this program through which convicted felons interacted with students in the

City schools. On November 10, 2010, the trial court granted a motion to dismiss filed

by the City and based on immunity pursuant to R.C. Chapter 2744. Appellant appealed

this decision, which we dismissed for lack of a final appealable order pursuant to R.C.
2505.02 and Civ.R. 54(B). On July 27, 2011, the trial court granted summary judgment

in favor of Box based on immunity. The trial court also granted the City’s motion to

strike a subsequent motion for summary judgment filed by appellant against the City,

because the City had already been dismissed from the case. This appeal followed.

      {¶9} Appellant’s first assignment of error states: “The trial court erred when it

granted defendant James Box’s motion for summary judgment and ruled that Box had

immunity pursuant to section 2744.03(A)(6).”

      {¶10} Our review of a trial court’s grant of summary judgment is de novo.

Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Pursuant

to Civ. R. 56(C), summary judgment is appropriate when (1) there is no genuine issue

of material fact, (2) the moving party is entitled to judgment as a matter of law, and (3)

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, 653 N.E.2d 1196

(1995), paragraph three of the syllabus; Zivich v. Mentor Soccer Club, 82 Ohio St.3d

367, 696 N.E.2d 201 (1998). 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, 662 N.E.2d 264 (1996).

      {¶11} Appellant maintains that the trial court improperly granted Box’s motion

for summary judgment because, she asserts, there remained genuine issues of material

fact as to whether Box should be held liable for reckless conduct pursuant to R.C.
2744.03(A)(6), which provides:

      (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:

      ***

      (6) In addition to any immunity or defense referred to in division (A)(7) of
      this section and in circumstances not covered by that division or sections
      3314.07 and 3746.24 of the Revised Code, the employee is immune from
      liability unless one of the following applies:

      ***

      (b) The employee’s acts or omissions were with malicious purpose, in bad
      faith, or in a wanton or reckless manner.

      {¶12} Appellant argues that a genuine issue of material fact exists as to whether

Box’s conduct as the City’s liaison to the Urban League and the Amer-I-Can program

was reckless.

      An actor’s conduct is in reckless disregard of the safety of others 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. O’Toole v. Denihan, 118 Ohio St.3d 374, 2008-Ohio-2574,

      889 N.E.2d 505, at ¶ 73.
       {¶13} “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.” Id. “Recklessness, therefore,

necessarily requires something more than mere negligence. In fact, the actor must be

conscious that his conduct will in all probability result in injury.” (Internal citations

omitted.) Id. at ¶ 74.

       {¶14} Moreover, “although the determination of recklessness is typically within

the province of the jury, the standard for showing recklessness is high, so summary

judgment can be appropriate in those instances where the individual’s conduct does not

demonstrate a disposition to perversity.” Id. at ¶ 75.

       {¶15} In the present case, the record is devoid of evidence that Box’s conduct

rose to the level of recklessness. Therefore, summary judgment was appropriate. This

court is not condoning the decision to invite convicted felons and students to interact in a

mentor-like relationship within a school setting and with uncertain supervision. This

decision, however, was not Box’s decision. The decision to introduce the Amer-I-Can

program at George Washington Carver Elementary School may have been reckless, but

an employee merely carrying out his duties in accordance with an established plan to

implement the program is certainly not.

       {¶16} The record fails to provide any evidence to suggest that Box was the

“point man for the implementation of this program into the school district” as appellant

claims. On the contrary, whoever this “point man” may be, the record reflects that such

person was above Box in the decision-making hierarchy. Box was appointed by Mayor
Campbell to serve as the City’s liaison for the program given his past involvement with

Amer-I-Can and his understanding of the program. The record contains no evidence to

suggest that he carried out those duties recklessly or that he became aware of any further

risk in the course of these duties prior to learning of the subject incident involving

appellant.2 Further, even though Box trained the individuals from a pool of applicants

and selected eight of them to be facilitators for this program, in doing so he followed

Amer-I-Can’s guidelines for screening applicants and had background checks performed

to ensure that the individuals met the program’s requisite criteria. Although every

individual he selected had a felony record, the essence of the program, at the time, was to

have those who had been involved with law enforcement and gang violence serve as

facilitators to convince young people not to stray down this wayward course.

           {¶17} Therefore, even though Box selected and trained a group of convicted

felons to act as facilitators and acted as the City’s liaison to the Urban League as it

implemented the Amer-I-Can program, his conduct does not demonstrate a perverse

disregard of a known risk because he personally did not authorize the implementation of

the program into the Cleveland schools but rather carried out the duties imposed upon

him by Mayor Campbell in accordance with this implementation.


         The record contains mention of another alleged sexual assault involving a Peace Squad
       2


member of Amer-I-Can and a female student. There is no indication in the record, however, that
Box was aware of this allegation before he became aware of the subject incident. It is also unclear
whether this accused individual was a part of this particular program. Furthermore, even if this court
were to assume that Box was aware of the prior incident and the accused was a member of the
program, there is no evidence that Box acted or failed to act, with a perverse disregard in handling
this information, in his capacity as liaison.
       {¶18} Accordingly, appellant’s first assignment of error is overruled.

       {¶19} Appellant’s second assignment of error states: “The trial court erred when

it granted defendant, city of Cleveland’s motion to dismiss based on immunity.”

       {¶20} “A motion to dismiss for failure to state a claim upon which relief can be

granted * * * tests the sufficiency of the complaint.” State ex rel. Hanson v. Guernsey

Cty. Bd. of Commrs., 65 Ohio St.3d 545, 548, 605 N.E.2d 378 (1992). A motion made

under Civ.R. 12(B)(6) only determines whether the pleader’s allegations set forth an

actionable claim; indeed, a court “may not use the motion to summarily review the merits

of the cause of action.”         Ward v. Graue, 12th Dist. No. CA2011-04-032,

2012-Ohio-760, ¶ 9.

       {¶21} In order to prevail on a Civ.R. 12(B)(6) motion, it must appear beyond

doubt from the complaint that the plaintiff can prove no set of facts entitling plaintiff to

recover. Hester v. Dwivedi, 89 Ohio St.3d 575, 733 N.E.2d 1161 (2000). A court is

confined to the averments set forth in the complaint and cannot consider outside

evidentiary materials. Id. Moreover, a court must presume that all factual allegations

set forth in the complaint are true and must make all reasonable inferences in favor of the

nonmoving party. Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 532 N.E.2d 753

(1988). Therefore, “as long as there is a set of facts, consistent with the plaintiff’s

complaint, which would allow the plaintiff to recover, the court may not grant a

defendant’s motion to dismiss.” York v. Ohio State Hwy. Patrol, 60 Ohio St.3d 143,

145, 573 N.E.2d 1063 (1991).
      {¶22} We review the trial court’s decision granting a motion to dismiss under a

de novo standard of review.       Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79,

2004-Ohio-4362, 814 N.E.2d 44, ¶ 5.

      {¶23}     In determining whether a political subdivision is immune from tort

liability pursuant to R.C. Chapter 2744, a three-tiered analysis is required. Lyons v.

Teamhealth Midwest Cleveland, 8th Dist. No. 96336, 2011-Ohio-5501.

      “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. R.C. 2744.02(A)(1). However, that immunity is not
      absolute. R.C. 2744.02(B) * * *.

      “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. * * *

      “If any of the exceptions to immunity in R.C. 2744.02(B) do apply and no
      defense in 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 ¶ 23-25, quoting Cramer v.
      Auglaize Acres, 113 Ohio St. 266, 2007-Ohio-1946, 865 N.E.2d 9.

      {¶24} Beginning with the first tier, the City is generally immune from liability.

R.C. 2744.02(A)(1) provides:

      For the purposes of this chapter, the functions of political subdivisions are

      hereby classified as governmental functions and proprietary functions.

      Except as provided in division (B) of this section, a political subdivision is

      not liable in damages in a civil action for injury, death, or loss to person or

      property allegedly caused by any act or omission of the political
       subdivision or an employee of the political subdivision in connection with

       a governmental or proprietary function. Id. at 30.

       {¶25} Proceeding to the second tier, appellant argues that the relevant exception

in R.C. 2744.02(B) implicated by this case is R.C. 2744.02(B)(2), which provides that

political subdivisions are liable for “negligent performance of acts by their employees

with respect to proprietary functions * * * .” Appellant asserts she sufficiently pled

facts in her complaint to demonstrate that the City’s conduct in this case constituted a

proprietary, as opposed to a governmental function, and that the City’s employee, Box,

performed his duties negligently. If appellant is incorrect, R.C. 2744.02(A)(1)’s grant

of general immunity is not defeated and we must affirm the judgment of the trial court as

none of the other exceptions in R.C. 2744.02(B) are applicable to the present case.

       {¶26}     “The mutually exclusive definitions of ‘governmental function’ and

‘proprietary function’ are set out in R.C. 2744.01. R.C. 2744.01(C)(2) lists specific

functions expressly designated as governmental functions, and R.C. 2744.01(G)(2) lists

specific functions that are expressly designated as proprietary functions.”    Greene Cty.

Agricultural Soc. v. Liming, 89 Ohio St.3d 551, 557, 2000-Ohio-486, 733 N.E.2d 1141.

The activities of the City at issue in the present case do not fall explicitly within either

R.C. 2744.01(C)(2) or 2744.01(G)(2). Therefore, to classify the City’s activities, we

look to R.C. 2744.01(C)(1)’s definition of “governmental function” and R.C.

2744.01(G)(1)(b)’s definition of a “proprietary function.” Id.

       {¶27} R.C. 2744.01(C)(1) provides that a governmental function is one that
satisfies any of the following tests:

       (a) A function that is imposed upon the state as an obligation of
       sovereignty and that is performed by a political subdivision voluntarily or
       pursuant to legislative requirement;

       (b) A function that is for the common good of all citizens of the state;

       (c) A function that promotes or preserves the public peace, health, safety or
       welfare [and] that involves activities that are not engaged in or not
       customarily engaged in by nongovernmental persons * * *. R.C.
       2744.01(C)(1); Id.

       {¶28}     On the other hand, R.C. 2744.01(G)(1)(b), defines a “proprietary

function” as a function that “promotes or preserves the public peace, health, safety, or

welfare and that involves activities that are customarily engaged in by nongovernmental

persons.”

       {¶29} This court has previously held that

       “R.C. 2744.01(C) does not exclude from the definition of governmental
       functions those functions sometimes performed by private entities for
       political subdivisions. In fact, many of the specifically enumerated
       governmental functions set forth in R.C. 2744.01(C)(1) are commonly
       performed by private entities for political subdivisions * * *.” Lyons, 8th
       Dist. No. 96336, 2011-Ohio-5501, at ¶ 46, quoting McCloud v. Nimmer, 72
       Ohio App.3d 533, 595 N.E.2d 492 (8th Dist.1991).

       “Essentially, if the activity is one customarily engaged in by
       nongovernmental persons, then the activity is proprietary.” Ohio Bell Tel.
       Co. v. Leon Riley, Inc., 8th Dist. No. 94771, 2010-Ohio-5371, at ¶ 13.

       {¶30} Another relevant factor in making the distinction between a governmental

and proprietary function is:

       “whether the act is for the common good of all the people of the state, or
       whether it relates to special corporate benefit or profit * * * [i]f the
       function being exercised is proprietary and in pursuit of private and
       corporate duties, for the particular benefit of the [municipal] corporation
       and its inhabitants, as distinguished from those things in which the whole
       state has an interest, the city is liable.” Greene Cty. Agricultural Soc., 89
       Ohio St.3d at 558-559, 2000-Ohio-486, 733 N.E.2d 1141, quoting Wooster
       v. Arbenz, 116 Ohio St. 281, 284-285, 156 N.E. 210 (1927).

       {¶31} Therefore, the relevant question is whether appellant pled facts sufficient

to demonstrate that the activities performed by the City were those customarily engaged

in by nongovernmental persons that can be demonstrated by showing that the function

was in pursuit of private and corporate duties for the City’s benefit, as opposed to those

things in which the whole state has an interest.

       {¶32} Appellant, however, has failed to plead sufficient facts demonstrating that

the City’s activities in the instant matter were those customarily engaged by

nongovernmental persons.

       {¶33} Pertinent to the present issue, appellant alleged in her complaint that:

       (¶7) The Defendant City of Cleveland * * * is a municipal corporation that,
       as part of its function, receives and disburses grants of money to various
       foundations * * *.

       (¶21) Cleveland agreed to fund and support the implementation of [the
       program] and authorized the payment of approximately $300,000 in public
       funds for said purpose.

       (¶22) Cleveland also agreed to provide program assistance as needed * * *
       via the city’s Community Relations Board and also provided a Cleveland
       employee as the program liaison to assist with the day-to-day
       implementation of the program as needed.

       (¶22) [sic] [James] Box, a Cleveland employee was designated as the
       liaison for the implementation of the program.

       (¶23) Cleveland agreed, among other things, to support the program,
       provide support services, to provide use of space for “Life Skill Sessions”,
      [sic] to provide assignments for Peace Squad Facilitators when assistance
      was requested by District site administrators, and to have final approval of
      the District site activities and of the Peace Squad Facilitators participating
      in the program as part of the City Schools component of the City of
      Cleveland’s Amer-I-Can Peace Squad Program.

      (¶24) The program called for the implementation of Peace Squad
      Facilitators, who acted as counselors, the majority of whom were
      previously convicted criminals, who were then directed into the School
      District sites, including George Washington Carver Elementary School
      where Jane Doe was an 8th Grader.

      (¶30) Despite the fact that the Memorandum of Understanding had not
      been executed, Cleveland, by and through its duly appointed agent,
      representatives and employees, decided that the program should be
      initiated and therefore implemented the program at George Washington
      Carver Elementary School commencing approximately February 1, 2005.

      (¶31) Defendants, Cleveland, the School District, Amer-I-Can, Mt. Sinai,
      and/or MSM accepted and/or recommended McDonald to participate in the
      Peace Squad Program and assigned him to be located within George
      Washington Carver Elementary School.

      {¶34}     Appellant’s complaint essentially alleges that the City’s activities

consisted of: authorizing the payment of public funds for the implementation of the

program, providing general oversight and assistance to the program through one of its

employees, and accepting and/or recommending an individual to participate in this

particular program. Certainly, the act of distributing grants for educational purposes

and assisting and overseeing the program for which those funds were provided are those

customarily engaged in by governmental persons. In the present instance, the City’s

actions were not in pursuit of private or corporate duties for its particular benefit, but

rather in the state’s interest of education. We cannot say that the alleged actions of the

City were those customarily engaged in by non-governmental persons. “As a general
proposition, it is not for courts to second-guess the wisdom of discretionary

governmental choices, troubling though they may sometimes seem in the glaring clarity

of hindsight.” Yvonne Haddock v. New York, 75 N.Y.2d 478, 486, 553 N.E.2d 987

(1990).

       {¶35}     Accordingly, the City retained its immunity pursuant to R.C.

2744.02(A)(1) and the trial court did not err by granting the City’s motion to dismiss.

       {¶36} Appellant’s second assignment of error is overruled.

       {¶37} Appellant’s third and final assignment of error states: “The trial court

erred when it granted the City of Cleveland’s motion to strike Plaintiff’s motion for

summary judgment.”

       {¶38} A trial court’s grant of a motion to strike is within the sound discretion of

the court and will not be overturned unless the court abuses its discretion. Tiburzi v.

Adience, Inc., 8th Dist. No. 96591, 2012-Ohio-803, at ¶ 17, citing Early v. Toledo Blade,

130 Ohio App.3d 302, 318, 720 N.E.2d 107 (6th Dist.1998).

       {¶39} The record reflects that the City’s motion to dismiss had been granted

prior to appellant filing a motion for summary judgment against the City. We find no

abuse of discretion in the trial court’s decision to strike appellant’s motion for summary

judgment against a party that had already been dismissed from the action.

       {¶40} Appellant’s third assignment of error is overruled.

       {¶41} The judgment of the trial court is affirmed.

       It is ordered that appellees recover from appellant costs herein taxed.
      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate be sent to said lower 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.



EILEEN A. GALLAGHER, JUDGE

KATHLEEN ANN KEOUGH, J., CONCURS;
COLLEEN CONWAY COONEY, P.J., CONCURS
IN JUDGMENT ONLY
