[Cite as McDade v. Cleveland, 2012-Ohio-5515.]


                 Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 98415


                                    TENSIE MCDADE
                                                       PLAINTIFF-APPELLEE

                                                 vs.


                        CITY OF CLEVELAND, ET AL.
                                                       DEFENDANTS-APPELLANTS




                                          JUDGMENT:
                                           REVERSED


                                     Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                     Case No. CV-771362

        BEFORE: Jones, J., Boyle, P.J., and Kilbane, J.

        RELEASED AND JOURNALIZED: November 29, 2012
ATTORNEYS FOR APPELLANTS

Barbara Langhenry
Interim Director of Law

BY: Shawn M. Mallamad
Assistant Director of Law
City of Cleveland,
601 Lakeside Avenue, Room 106
Cleveland, Ohio 44114


ATTORNEY FOR APPELLEE

Ronald A. Apelt
Apelt Law Firm, LLC
20600 Chagrin Blvd.
Suite 400
Shaker Heights, Ohio 44122
LARRY A. JONES, SR., J.:

       {¶1} Defendants-appellants, the city of Cleveland, department of public safety,

division of police (“the police department”) and the city of Cleveland (“the city”), appeal

from the trial court’s judgment denying their motion to dismiss the complaint of

plaintiff-appellee Tensie McDade.     We reverse.

                                    I. Procedural History

       {¶2} In her December 2011 complaint, in addition to naming the police department

and the city as defendants, McDade also named “John Doe Corporation” as a defendant.

In the complaint, McDade alleged that she went to her friend’s house after receiving a

phone call from the friend who was “upset and in hysterics” because she could not wake

her boyfriend or spouse.    McDade alleged that as she ran to the friend’s side door, she

was “grabbed” by police officers for the city.       According to the complaint, McDade

sustained injuries to her neck, head, and shoulder as a result and incurred damages in

undergoing medical treatment for the injuries.

       {¶3} In Count 1 of her complaint, McDade alleged that the officer who grabbed her

“either recklessly and/or negligently, in an attempt to restrain her, caused her to sustain * *

* injuries and damage * * *.”    The count alleged that the city’s   officers were employees

or agents of the police department acting and working within the course and scope of their

employment.

       {¶4} Count 2 of McDade’s complaint alleged that the city’s officers assaulted her in
their attempt to restrain her.   And Count 3 alleged that the police department and the city

“negligently and recklessly failed to properly monitor, supervise and train” their officers.

       {¶5} In March 2012, the police department and the city filed a motion to dismiss

under Civ.R. 12(B)(6).     The police department contended that the complaint against it

should be dismissed because it is an entity not capable of being sued. The city contended

that it is immune from liability.

       {¶6} The defendants’ motion was initially unopposed, and was granted by the trial

court. However, McDade subsequently filed a brief in opposition, which the trial court

accepted as timely.      The court vacated its prior judgment in favor of the police

department and the city, and upon reconsideration, denied the defendants’ motion.

       {¶7} The defendants now assert the following assignment of error for our review:

“The Court erred as a matter of law when it denied the City of Cleveland’s motion to

dismiss because, under R.C. Chapter 2744, the City is immune from liability for the

provision of police services.”

                                    II.   Law and Analysis

       {¶8} Our standard of review on a Civ.R. 12(B)(6) motion to dismiss is de novo.

Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79, 2004-Ohio-4362, 814 N.E.2d 44, ¶ 5. A

motion to dismiss for failure to state a claim upon which relief can be granted is

procedural and tests the sufficiency of the complaint. State ex rel. Hanson v. Guernsey

Cty. Bd. of Commrs., 65 Ohio St.3d 545, 548, 1992-Ohio-73, 605 N.E.2d 378. Under a

de novo analysis, we must accept all factual allegations of the complaint as true and all
reasonable inferences must be drawn in favor of the nonmoving party. Byrd v. Faber, 57

Ohio St.3d 56, 60, 565 N.E.2d 584 (1991).

          {¶9} We first consider the defendants’ contention that the police department cannot

be sued.      The defendants cite three cases in support of their position: Friga v. E.

Cleveland, 8th Dist. No. 88262, 2007-Ohio-1716; Richardson v. Grady, 8th Dist. Nos.

77381 and 77403, 2000 Ohio App. LEXIS 5960 (Dec. 18, 2000); and Ragan v. Akron

Police Dept., 9th Dist. No. 16200, 1994 Ohio App. LEXIS 137 (Jan. 19, 1994). Each of

these cases hold that a police department is not sui juris and cannot be sued as a separate

entity.

          {¶10} For example, in Richardson, the plaintiff was the administrator for the estate

of her deceased daughter, who died after being involved in a collision that stemmed from a

police high-speed motor vehicle chase.        Among others, the plaintiff sued “‘The city of

Cleveland Police Department, a Municipal Corporation’, alleging that the officers were

acting within the course and scope of their employment and recklessly and/or wantonly

operated their motor vehicle in a high-speed chase.”              Id. at *2-*3.     The police

department filed a Civ.R. 12(B)(6) motion to dismiss, which the trial court granted. In

upholding the dismissal, this court stated the following:

          In order to survive the motion to dismiss plaintiff had to demonstrate that the
          named party, “The City of Cleveland Police Department,” had the legal
          capacity to be sued; in other words, that the police department was sui juris.
          As a department of the City of Cleveland it was not sui juris. Instead, the
          real party in interest was the City of Cleveland.
(Emphasis sic.)    Id. at *6.1

       {¶11} In light of the above, the trial court erred in denying the motion to dismiss as

to the police department.    We now consider McDade’s case against the city.

       {¶12} R.C. 2744.02 governs political subdivision immunity, and certain exceptions

thereto. Subsection (A)(1) of the statute provides in pertinent part as follows:

       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.

       {¶13} In Colbert v. Cleveland, 99 Ohio St.3d 215, 2003-Ohio-3319, 790 N.E.2d

781, the Ohio Supreme Court interpreted the immunity statutes as setting forth a three-tier

analysis, stating the following:

       Determining whether a political subdivision is immune from tort liability

       pursuant to R.C. Chapter 2744 involves a three-tiered analysis.              Greene

       Cty. Agricultural Soc. v. Liming, 89 Ohio St.3d 551, 556-557,

       2000-Ohio-486, 733 N.E.2d 1141.           The first tier is the general rule that a

       political subdivision is immune from liability incurred in performing either a


       1
         See also Harris v. Sutton, 183 Ohio App.3d 616, 2009-Ohio-4033, 918 N.E.2d 181, fn. 1 (8th
Dist.): “Plaintiff-appellee separately named the East Cleveland Police Department in his complaint.
As a department of the city of East Cleveland, the police department is not sui juris and cannot be
sued as a separate entity. It is subsumed within any judgment relating to the city.”
       governmental function or proprietary function. Id. at 556-557, 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. At this

       tier, the court may also need to determine whether specific defenses to

       liability for negligent operation of a motor vehicle listed in R.C.

       2744.02(B)(1)(a) through (c) apply.

       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 ¶ 7-9.

       {¶14} The city contends, and McDade agrees for the purposes here, that the

operation of the city’s police department falls within the definition of a governmental

function.       McDade states that she is “aware that the Defendant City of Cleveland, like all

political subdivision[s], is granted immunity from claims brought relating to performance

of its governmental functions.” McDade does not contend that any of the five statutory

exceptions enumerated under R.C. 2744.02(B) apply.          Rather, McDade contends that the

general grant of immunity “does not preclude actions based upon willful and wanton
conduct of a political subdivision, or its employees, or where the acts or omissions were

outside the scope of the agent/employee’s employment.”             In support of her claim,

McDade cites Brkic v. Cleveland, 100 Ohio App.3d 282, 653 N.E.2d 1225 (8th Dist.1995).

 In Brkic, this court held that “[t]here is nothing in the language of [the political

immunity] statutes * * * that precludes an action based upon willful and wanton conduct

of the political subdivision or its employees.” Id. at 287.

       {¶15} This court revisited its holding in Brkic in Krokey v. Cleveland, 146 Ohio

App.3d 179, 765 N.E.2d 889 (8th Dist.2001). In Krokey, the plaintiff, a 15 year-old boy,

was detained by the police for questioning about an assault. The plaintiff was told by the

police to place his hands on the hood of the police car.          The plaintiff complied, but

complained to the police that the hood of the car was hot.            The mother of another

individual who was with the plaintiff, and whose son was also told to put his hands on the

hood of the police car, tried to intervene with the police; her efforts were to no avail.   The

plaintiff suffered second and third degree burns on his hands, and had to undergo skin

graft operations on both hands using donor skin from his back.

       {¶16} The plaintiff sued the city, four named police officers, and two Doe officers.

 The city denied that the four named officers were the ones who had detained the plaintiff,

and a motion for a directed verdict as to those four officers was granted.       The case was

submitted to the jury on the plaintiff’s claims against the city of unlawful detention and

assault and battery, despite the city’s contention that it was immune from liability for the

tortious acts of its employees under R.C. 2744.02.
      {¶17} In overruling the city’s claim of immunity, the trial court relied on Brkic in

finding that R.C. 2744.02 did not preclude an action based upon willful and wanton

conduct of a political subdivision or its employees, or where the acts or omissions were

outside the scope of the employee’s employment.              On appeal, however, this court held as

follows:

      To the extent that Brkic I suggests that liability can be imposed on the City
      pursuant to R.C. 2744.03(A)(6) 2 even when none of the exceptions to
      immunity stated in R.C. 2744.02 apply, that suggestion has been rejected by
      the Ohio Supreme Court’s subsequent decision in Cater v. Cleveland [83
      Ohio St.3d 24, 697 N.E.2d 610 (1998)].

Krokey at 184.

      {¶18} In Cater, the parents of a boy who died at a swimming pool operated by the

city of Cleveland contended that an exception under R.C. 2744.03 provided an


      2
       R.C. 2744.03(A)(6) provides in pertinent part that:

      * * * the employee is immune from liability unless one of the following applies:

      (a) The employee’s acts or omissions were manifestly outside the scope of the
      employee’s employment or official responsibilities;

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

      (c) Civil liability is expressly imposed upon the employee by a section of the Revised
      Code. Civil liability shall not be construed to exist under another section of the
      Revised Code merely because that section imposes a responsibility or mandatory duty
      upon an employee, because that section provides for a criminal penalty, because of a
      general authorization in that section that an employee may sue and be sued, or
      because the section uses the term “shall” in a provision pertaining to an employee.
independent basis for imposing liability on the city. The Ohio Supreme Court disagreed,

stating that R.C. 2744.03 provides defenses to liability. In other words, “it cannot be

used to establish liability.”   Id. at 32.    “R.C. 2744.03 does not grant exceptions to

immunity, but instead provides defenses in particular circumstances if the political

subdivision is subject to suit under R.C. 2744.02.” Krokey at id.

       {¶19} Thus, McDade cannot use R.C. 2744.03 to establish liability on the city for

the alleged acts.    Moreover, R.C. 2744.03(A)(6), which McDade cites as imposing

liability on the city, “refers only to the immunity of an employee of a political subdivision;

the fact that the employee remains liable for his intentional torts does not automatically

render the political subdivision liable as well.”   (Emphasis added.) Krokey at id.

       {¶20} In light of the above, the trial court erred in denying the city’s motion to

dismiss.

       {¶21} Judgment reversed.

       It is ordered that appellants recover of appellee costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the Cuyahoga

County Court of Common Pleas 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.
LARRY A. JONES, SR., JUDGE

MARY J. BOYLE, P.J., and
MARY EILEEN KILBANE, J., CONCUR
