[Cite as Lane v. Greater Cleveland Regional Transit Auth., 2014-Ohio-4811.]



                 Court of Appeals of Ohio
                                   EIGHTH APPELLATE DISTRICT
                                      COUNTY OF CUYAHOGA


                                  JOURNAL ENTRY AND OPINION
                                          No. 100868



                                             SHI’DEA LANE

                                                           PLAINTIFF-APPELLEE

                                                     vs.

                                           G.C.R.T.A., ET AL.

                                                           DEFENDANTS-APPELLANTS




                                              JUDGMENT:
                                               AFFIRMED



                                        Civil Appeal from the
                               Cuyahoga County Court of Common Pleas
                                      Case No. CV-13-803061

        BEFORE: Jones, J., Boyle, A.J., and E.A. Gallagher, J.

        RELEASED AND JOURNALIZED: October 30, 2014
ATTORNEYS FOR APPELLANT

John A. Sivinski
David Mullen
Brian J. Smith
Sivinski & Smith, L.L.C.
8905 Lake Avenue, 4th Floor
Cleveland, Ohio 44102


ATTORNEYS FOR APPELLEES

For Shi’Dea Lane

Dale R. Friedland
Rapoport Spitz Friedland & Courtney
55 Public Square, #1750
Cleveland, Ohio 44113

For G.C.R.T.A.

Kathleen M. Minahan
Greater Cleveland R.T.A.
6 th Floor Root-McBride Building
1240 West 6th Street
Cleveland, Ohio 44113
LARRY A. JONES, SR., J.:

       {¶1} Defendant-appellant, Artis Hughes, appeals the trial court’s dismissal of his

cross-claim against defendant-appellee, Greater Cleveland Regional Transit Authority

(“GCRTA”). We affirm.

       {¶2} In 2012, Shi’Dea Lane filed a complaint against GCRTA and Hughes in connection

with an incident aboard a GCRTA bus that Hughes was driving.

       {¶3} Hughes filed counterclaims against Lane for assault and battery and filed

cross-claims against GCRTA for contribution or indemnification.      In his cross-claim, which is

the subject of this appeal, Hughes alleged that GCRTA was negligent in its failure to protect him

from, and train him how to handle, hostile and unruly passengers like Lane.

       {¶4} GCRTA filed a motion to dismiss Lane’s complaint and Hughes’s cross-claim.          In

GCRTA’s motion to dismiss the cross-claim, it argued that Hughes’s claim for indemnification

was not properly pled, he was not entitled to contribution from GCRTA because he was an

intentional tortfeasor, and GCRTA was immune from liability for any alleged negligent failure to

train and protect Hughes. The trial court subsequently found that GCRTA was immune from

liability, granted both motions, and dismissed Lane’s complaint and Hughes’s cross-claims.

Lane then dismissed her remaining claims against Hughes and Hughes dismissed his counterclaim

against Lane.

       {¶5} Hughes filed a timely notice of appeal.   Lane also appealed the trial court’s decision

to dismiss her complaint against GCRTA, which we recently affirmed, agreeing with the trial

court that GCRTA was statutorily immune from liability.      Lane v. Greater Cleveland Regional

Transit Auth., 8th Dist. Cuyahoga No. 100829, 2014-Ohio-3917.
        {¶6} Here, Hughes raises the following three assignments of error, which will be

combined for review:

        [I.] The trial court erred by granting defendant GCRTA’s motion to dismiss
        appellant’s cross-claim.

        [II.] The trial court erred by concluding that defendant GCRTA was entitled to
        immunity per R.C. 2744.03(A)(5).

        [III.] The trial court erred by not making a determination as to whether
        appellant’s cross-claim had a causal connection or causal relationship to his
        employment relationship with defendant GCRTA.

                                        II.   Law and Analysis

        {¶7} This court applies a de novo standard of review when reviewing a trial court’s ruling

on a Civ.R.12(B)(6) motion to dismiss for failure to state a claim.      Perrysburg Twp. v. Rossford,

103 Ohio St.3d 79, 2004-Ohio-4362, 814 N.E.2d 44, ¶ 5, citing Cincinnati v. Beretta U.S.A.

Corp., 95 Ohio St.3d 416, 2002-Ohio-2480, 768 N.E.2d 1136. Under this standard of review,

we must independently review the record and afford no deference to the trial court’s decision.

Herakovic v. Catholic Diocese of Cleveland, 8th Dist. Cuyahoga No. 85467, 2005-Ohio-5985,

¶ 13.

        {¶8} Pursuant to Civ.R. 12(B)(6), a complaint is not subject to dismissal for failure to state

a claim upon which relief may be granted unless it appears beyond doubt that the plaintiff can

prove no set of facts in support of his or her claim that would entitle the plaintiff to relief.   Doe v.

Archdiocese of Cincinnati, 109 Ohio St.3d 491, 2006-Ohio-2625, 849 N.E.2d 268, ¶ 11, citing

O’Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242, 327 N.E.2d 753 (1975).

Therefore, “[a]s 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).
       {¶9} In resolving a Civ.R. 12(B)(6) motion, a court’s factual review is confined to the four

corners of the complaint. Grady v. Lenders Interactive Servs., 8th Dist. Cuyahoga No. 83966,

2004-Ohio-4239, ¶ 6. Within those confines, a court accepts as true all material allegations of

the complaint and makes all reasonable inferences in favor of the nonmoving party.          Fahnbulleh

v. Strahan, 73 Ohio St.3d 666, 667, 653 N.E.2d 1186 (1995). “[A]s 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 at id.

       {¶10} GCRTA is a political subdivision of the state of Ohio, created pursuant to R.C.

306.31 et seq. Drexler v. Greater Cleveland Regional Transit Auth., 80 Ohio App.3d 367, 609

N.E.2d 231 (8th Dist.1992). R.C. Chapter 2744 sets forth a three-tiered analysis for determining

whether governmental immunity applies to a political subdivision.            Greene Cty. Agricultural

Soc. v. Liming, 89 Ohio St.3d 551, 556-557, 733 N.E.2d 1141 (2000). First, the court must

determine whether the entity claiming immunity is a political subdivision and whether the alleged

harm occurred in connection with either a governmental or proprietary function.                Id.; R.C.

2744.02(A)(1). Under R.C. 2744.02(A)(1), a political subdivision is generally “not liable for

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 * * * in connection with a governmental or proprietary

function.”

       {¶11} The second tier of the analysis requires the court to determine whether any of the

five exceptions to immunity enumerated in R.C. 2744.02(B) apply to reinstate liability to the

political subdivision. Cater v. Cleveland, 83 Ohio St.3d 24, 28, 697 N.E.2d 610 (1998). If the

court finds any of the R.C. 2744.02(B) exceptions applicable, and no defense in that section

protects the political subdivision from liability, then the third tier of the analysis requires the court
to determine whether any of the defenses set forth in R.C. 2744.03 apply, thereby providing the

political subdivision a defense against liability.     Colbert v. Cleveland, 99 Ohio St.3d 215,

2003-Ohio-3319, 790 N.E.2d 781, ¶ 9.

        {¶12} The question of whether a governmental employee or political subdivision is

entitled to this statutory immunity is a question of law for the court to decide.   Conley v. Shearer,

64 Ohio St.3d 284, 291, 595 N.E.2d 862 (1992); Feitshans v. Darke Cty., 116 Ohio App.3d 14,

19, 686 N.E.2d 536 (2d Dist.1996).

        {¶13} Hughes argues that the trial court erred in dismissing his cross-claim based on its

determination that GCRTA was immune from suit. Hughes relies on R.C. 2744.09(B), which

provides that the political subdivision immunity does not apply to:

        Civil actions by an employee, or the collective bargaining representative of an

        employee, against his political subdivision relative to any matter that arises out of

        the employment relationship between the employee and the political subdivision.

        {¶14} Hughes contends that his cross-claims alleges matters that are relative to an

altercation with Lane that rose out of his employment relationship with GCRTA; therefore,

GCRTA cannot claim immunity from his actions. We disagree.

        {¶15} R.C. 2744.09(B) provides exceptions to the immunity when the employee is the one

filing suit.   Here, Hughes did not bring an action against GCRTA, he did not allege that he was

injured as a result of GCRTA’s alleged failure to train him, and he is not seeking to recover from

GCRTA directly.      Instead, Hughes alleged that if he is held liable for Lane’s injuries, then he

should be entitled to recover from or be indemnified by GCRTA.                 Cross-claim at ¶ 30.

Therefore, R.C. 2744.09(B) does not apply.

        {¶16} The core of Hughes’s allegations were that GCRTA was negligent in personnel
matters or his training. These allegations are similar to those in Lane’s complaint. Because

both Lane and Hughes alleged that GCRTA is liable for any injuries Lane suffered for negligently

hiring and training Hughes, GCRTA has assumed in both cases, for the sake of argument, that the

exception to liability under R.C. 2744.02(B)(2) applied (negligent performance of acts of their

employees with respect to a proprietary function.)    See Lane, 8th Dist. Cuyahoga No. 100829,

2014-Ohio-3917, at ¶ 19.

       {¶17} GCRTA contends that one of the defenses to liability set forth in R.C. 2744.03

applies and, therefore, it is entitled to immunity from claims of negligent hiring and training.

According to GCRTA, the following applies to reinstate its immunity:

       The political subdivision is immune from liability if the injury, death, or loss to

       person or property resulted from the exercise of judgment or discretion in

       determining whether to acquire, or how to use, equipment, supplies, materials,

       personnel, facilities, and other resources unless the judgment or discretion was

       exercised with malicious purpose, in bad faith, or in a wanton or reckless manner.

R.C. 2744.03(A)(5).

       {¶18} We agree with GCRTA that R.C. 2744.03(A)(5) applies to shield it from liability in

this case as it did in Lane. See Lane at ¶ 21. As with Lane, Hughes did not allege that GCRTA

acted with malicious purpose, in bad faith, or in a wanton or reckless manner. Therefore, his

cross-claim fails to allege sufficient facts to negate the immunity defense contained in R.C.

2744.03(A)(5).    See Lane at id., citing Scott v. Dennis, 8th Dist. Cuyahoga No. 94685,

2011-Ohio-12 (in lawsuit alleging negligent hiring and supervision, college was entitled to

immunity because plaintiff did not allege school acted with malicious purpose or in bad faith).

       {¶19} Consequently, Hughes’s cross-claim fails as matter of law and the trial court did not
err in dismissing it.   The assignments of error are overruled.

        {¶20} Judgment affirmed.

        It is ordered that appellee recover of appellant 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, A.J., and
EILEEN A. GALLAGHER, J., CONCUR
