Steele v. Cincinnati , 2019 Ohio 4853 ( 2019 )

[Cite as Steele v. Cincinnati, 2019-Ohio-4853.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
MAIKEL STEELE, Administrator of the APPEAL NO. C-180593
:
Estate of O’Bryan Raphael Spikes, TRIAL NO. A-1706067
Plaintiff-Appellant, O P I N I O N.
:
vs.
CITY OF CINCINNATI, :
BRIAN A. BRAZILE,
:
DAVID DOZIER,
JOEHONNY N. REESE, :
and
:
DIONDRE L. WINSTEAD,
Defendants-Appellees,
:
and
CAMEO CINCINNATI, LLC, :
JULIAN RODGERS,
:
JRODG GROUP, LLC,
and :
KELLOGG GROUP, LLC,
Defendants. :
OHIO FIRST DISTRICT COURT OF APPEALS
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: November 27, 2019
The Law Firm of Curt C. Hartman and Curt C. Hartman, and Finney Law Firm,
Christopher P. Finney and Bradley M. Gibson, for Plaintiff-Appellant,
Paula Boggs Muething, City Solicitor, Emily Smart Woerner, Chief Counsel, and
Mark R. Manning, Senior Assistant City Solicitor, and Hardin, Lazarus & Lewis,
LLC, and Kimberly A. Rutowski, for Defendants-Appellees.
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OHIO FIRST DISTRICT COURT OF APPEALS
MYERS, Presiding Judge.
{¶1} In this appeal, we are asked to determine whether defendants-
appellees the city of Cincinnati and Cincinnati Police Officers Brian Brazile, David
Dozier, Joehonny Reese, and Diondre Winstead (“the officers”), are entitled to
judgment on the pleadings on plaintiff-appellant Maikel Steele’s claims against them
relating to a shooting that took place at a Cincinnati nightclub where the officers
were working a security detail as private duty officers outside the nightclub.
{¶2} Because the trial court appropriately determined that the city was
entitled to a grant of immunity because the officers were engaging in a governmental
function when working the security detail outside the nightclub, and that the officers
had no duty under the facts alleged in the complaint to prevent weapons from being
brought into the nightclub, we hold that the trial court did not err in granting the
motion for judgment on the pleadings.
1. Factual and Procedural Background
{¶3} O’Bryan Raphael Spikes was present at Cameo Nightclub on March 25,
2017, when a gunfight erupted in the nightclub. Spikes, an innocent bystander, was
hit by a stray bullet and died from his resulting injuries. The officers had been
working a security detail as private duty officers outside Cameo Nightclub when the
shooting took place.
{¶4} Steele, as the administrator of Spikes’s estate, filed suit against the city
and the officers, as well as defendants Julian Rodgers, Cameo Cincinnati, LLC,
(“Cameo”) JRODG Group, LLC, (“JRODG”) and Kellogg Group, LLC, (“Kellogg”).
Cameo did business under the trade name Cameo Nightclub, and was operated by
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OHIO FIRST DISTRICT COURT OF APPEALS
JRODG. Julian Rodgers was the statutory agent for, and a member of, both Cameo
and JRODG. Kellogg owned the building out of which JRODG operated Cameo.
{¶5} Steele’s complaint alleged that Cameo, as part of its security protocol,
required all patrons of the nightclub to enter through one entrance, where they were
screened for weapons. It further alleged that Rodgers had established a policy,
pattern and practice of permitting patrons to bypass the security entrance and enter
the nightclub without being screened for weapons. Patrons with knowledge of this
“security bypass” could avail themselves of it by paying an additional cover charge
and entering the club through an alternate entrance. According to the complaint,
Spikes’s death resulted from patrons engaging in a gunfight after entering the club
with weapons through this security bypass.
{¶6} With respect to the officers, the complaint alleged that they had
worked the security detail at Cameo Nightclub on multiple occasions, were familiar
with the security protocols, and knew or should have known of the security bypass;
that they breached their duty to protect the nightclub patrons from foreseeable harm
by turning a blind eye to the security bypass; that their actions were done “either
with a malicious purpose, in bad faith, or in a wanton or reckless manner” because
incidents of violence were foreseeable when both weapons and alcohol are present
and because similar acts of violence had previously occurred at the nightclub; and
that, as a result of the officers’ conduct, weapons were allowed inside the nightclub,
resulting in Spikes’s death.
{¶7} Regarding the city, the complaint alleged that it was responsible for
the negligent acts of its employees, as the officers were acting under the direction of
the city and within the scope of their employment in a proprietary function while
working the security detail. It further alleged that the officers negligently performed
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OHIO FIRST DISTRICT COURT OF APPEALS
their duty to ensure that weapons were not brought into the nightclub, which led to
Spikes’s death.
{¶8} Steele attached to the complaint a copy of both the “Outside
Employment Work Permit” that was signed by the city and the “Acknowledgement
by the Secondary Employer” form that was signed by Julian Rodgers concerning the
officers’ employment as private duty security officers for Cameo Nightclub. Both
forms provided that the officers would perform the following duties: “exterior
security and police visibility.”
{¶9} Kellogg filed a cross-claim against all defendants, arguing that they
had breached the duty of care owed to plaintiff, and that any liability that could be
found in favor of Steele was solely the responsibility of the remaining defendants.
{¶10} The city and the officers filed a Civ.R. 12(C) motion for judgment on
the pleadings. They argued that the city was entitled to immunity on Steele’s claims
and on Kellogg’s cross-claim because the officers were performing a governmental
function when working the security detail at Cameo Nightclub. And they argued that
the officers were immune from liability because they had no duty to act to prevent
the harm suffered. They additionally argued that the officers were entitled to
immunity because they had not acted with malicious purpose, in bad faith, or in a
wanton and reckless manner.
{¶11} Steele and Kellogg opposed the motion for judgment on the pleadings,
arguing that the city was not entitled to immunity because the officers were engaged
in a proprietary function when working the security detail. They additionally argued
that the officers had a duty to prevent the harm suffered and that they were not
entitled to immunity because the complaint sufficiently alleged that they had acted
with malicious purpose, in bad faith, or in a wanton or reckless manner.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶12} The trial court granted the motion for judgment on the pleadings. It
found that the city was immune from liability because the officers were engaged in a
governmental function when working the security detail. With respect to the
officers, it found that they had no duty to prevent weapons from being brought into
the nightclub, and that the complaint did not sufficiently assert that the officers had
acted with malicious purpose, in bad faith, or in a wanton or reckless manner.
{¶13} Steele now appeals, arguing in a single assignment of error that the
trial court erred in granting the motion for judgment on the pleadings.1
2. Standard of Review
{¶14} We review de novo a trial court’s ruling on a Civ.R. 12(C) motion for
judgment on the pleadings. Waldman v. Pitcher, 2016-Ohio-5909, 70 N.E.3d 1025,
¶ 15 (1st Dist.). We must accept all material allegations in the nonmoving party’s
complaint as true and must construe all reasonable inferences in that party’s favor.
Id. The motion should only be granted if it appears beyond doubt that the
nonmoving party cannot prove any set of facts entitling her to relief. Id.
{¶15} A trial court may grant a motion for judgment on the pleadings on the
basis of an affirmative defense such as immunity where the complaint bears
conclusive evidence that the action is barred by the defense. Bucey v. Carlisle, 1st
Dist. Hamilton No. C-090252, 2010-Ohio-2262, ¶ 9. So “unless the pleadings
‘obviously or conclusively establish[ ] the affirmative defense,’ a court may not grant
a motion for judgment on the pleadings.” Harris Farms, LLC v. Madison Twp.
1 Steele dismissed all remaining claims that had been asserted against Cameo, Julian Rodgers,
JRODG and Kellogg. Kellogg likewise dismissed its cross-claim against the remaining
defendants.
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OHIO FIRST DISTRICT COURT OF APPEALS
Trustees, 4th Dist. Scioto No. 17CA3817, 2018-Ohio-4123, ¶ 18, quoting Cristino v.
Bur. of Workers’ Comp., 2012-Ohio-4420, 977 N.E.2d 742, ¶ 21 (10th Dist.).
3. The City
{¶16} We first consider Steele’s argument that the trial court erred in
granting the motion for judgment on the pleadings with respect to the city.
{¶17} R.C. Chapter 2744 establishes a three-tiered analysis for determining
whether a political subdivision, such as the city, is entitled to immunity. R.K. v.
Little Miami Golf Ctr., 2013-Ohio-4939, 1 N.E.3d 833, ¶ 8 (1st Dist.). First, R.C.
2744.02(A)(1) provides a political subdivision with a general grant of immunity for
damages in a civil action resulting from an act or omission of the political subdivision
or employee in connection with a governmental or proprietary function. Second,
R.C. 2744.02(B) sets forth various exceptions that, if applicable, remove the initial
grant of immunity. And third, if an exception has been applied to remove immunity,
R.C. 2744.03 contains various defenses that can reinstate immunity.
{¶18} The parties do not dispute that the city was entitled to an initial grant
of immunity under R.C. 2744.02(A)(1). But Steele contends that the exception set
forth in R.C. 2744.02(B)(2) applies to remove that immunity. R.C. 2744.02(B)(2)
provides that “political subdivisions are liable for injury, death, or loss to person or
property caused by the negligent performance of acts by their employees with respect
to proprietary functions of the political subdivisions.” Steele argues that the officers
were engaging in a proprietary function when working the security detail, and that
they negligently performed their duty to ensure that weapons were not brought into
the nightclub. The city argues that the act of working the security detail was a
governmental function.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶19} R.C. 2744.01(C)(1) provides that a governmental function is:
(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; [or] (c) A function that
promotes or preserves the public peace, health, safety, or welfare; that
involves activities that are not engaged in or not customarily engaged
in by nongovernmental persons; and that is not specified in division
(G)(2) of this section as a proprietary function.
(Emphasis added.) The statute lists specific examples of governmental functions,
including the provision of police services and the power to preserve the peace. See
R.C. 2744.01(C)(2)(a) and (b). In contrast, a proprietary function is one that is not
described as a governmental function in R.C. 2744.01(C)(1)(a) or (b) or specified as a
governmental function in (C)(2), and “is one that promotes or preserves the public
peace, health, safety, or welfare and that involves activities that are customarily
engaged in by nongovernmental persons.” (Emphasis added.) R.C. 2744.01(G)(1).
{¶20} Relying on Greene Cty. Agricultural Soc. v. Liming, 89 Ohio St. 3d 551,
733 N.E.2d 1141 (2000), Steele argues that when determining whether an action is a
governmental or proprietary function, the specific act or omission at issue must be
considered, not just the general nature of the function. In Greene, the court held that
a county agricultural society was engaging in a proprietary function when conducting
a livestock competition at a county fair. Id. at paragraph two of the syllabus. The
court noted that in reaching such a determination “the issue here is not whether
holding a county fair is a governmental function; rather, it is the more specific
question of whether conducting the hog show at the county fair and conducting the
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OHIO FIRST DISTRICT COURT OF APPEALS
investigation into the allegations of irregularity * * * are governmental functions.”
Id. at 560.
{¶21} In this case, the specific service that the officers had been hired to
provide when working the security detail is listed on the Outside Employment Work
Permit and the form titled Acknowledgement by the Secondary Employer, both of
which Steele attached to the complaint. These forms indicate that the officers were
hired to provide “exterior security and police visibility.” They were not hired to
provide any indoor security or to engage in the screening process for patrons
entering the nightclub. Police visibility is not an activity customarily engaged in by
nongovernmental persons. See R.C. 2744.01(C)(1)(c). In fact, working as police
officers can only be engaged in by governmental persons. And the provision of police
services is specifically listed as an example of a governmental function. See R.C.
2744.01(C)(2)(a).
{¶22} We hold that the officers were engaging in a governmental function
when working the security detail outside Cameo Nightclub. See Cannavino v. Rock
Ohio Caesars Cleveland, L.L.C., 2017-Ohio-380, 83 N.E.3d 354, ¶ 24 (8th Dist.)
(holding that an off-duty police officer working a special duty at a casino was
performing a government function); see also Cooper v. Tommy’s Pizza, 10th Dist.
Franklin No. 09AP-1078, 2010-Ohio-2978, ¶ 8 (holding that a police officer working
a special duty was performing a governmental function). Because no exception
applies to remove the city’s immunity, the trial court did not err in determining that
the city was entitled to judgment on the pleadings.
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OHIO FIRST DISTRICT COURT OF APPEALS
4. The Officers
{¶23} We next consider whether the trial court erred in granting the motion
for judgment on the pleadings with respect to the officers. The trial court held that
the officers were entitled to judgment on the pleadings because they had no duty to
prevent weapons from being brought into the nightclub. It also found that the
officers were immune from liability, as the complaint did not sufficiently assert that
they had acted with malicious purpose, in bad faith, or in a wanton or reckless
manner. Steele challenges both of these determinations. We need not reach the
immunity argument, as we agree with the trial court’s determination that the officers
had no duty to prevent weapons from being brought into the nightclub under the
facts alleged in the complaint.
{¶24} Steele alleged in the complaint that the officers, having previously
worked security details at Cameo Nightclub, were familiar with the security protocols
and knew or should have known of the security bypass, but that they turned a blind
eye to it. The complaint further alleged that the officers had a duty to protect the
nightclub’s patrons from foreseeable harm, that incidents of violence in the nightclub
were foreseeable when both weapons and alcohol were present, and that the officers
breached this duty by turning a blind eye to the security bypass and allowing
weapons into the nightclub.
{¶25} Taking all allegations in the complaint as true, we find that the officers
had no duty to prevent weapons from being brought into the nightclub under the
facts alleged in the complaint. The officers were hired to provide exterior security
and police visibility. As police officers, they had a duty to take action if they saw a
crime being committed. But the complaint contains no allegations that the officers
failed to do so or that they failed to properly provide the services specified in the
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Outside Employment Work Permit. Rather, the complaint alleges that the officers
turned a blind eye and allowed weapons to be brought into the nightclub via the
security bypass. Even taking this as true, the officers had no duty to screen or search
patrons prior to their entrance. In fact, they had no authority under Ohio law to do
so. An officer cannot randomly stop and frisk a person in the absence of a
reasonable, articulable suspicion that the person was engaging in, or about to engage
in, criminal activity. See Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 20 L. Ed. 2d 889
(1968); State v. Tidwell, 1st Dist. Hamilton No. C-180512, 2019-Ohio-4493, ¶ 13.
{¶26} Because the officers had no duty under the facts alleged in the
complaint to prevent weapons from being brought into the nightclub when providing
external security, the complaint failed to establish a violation of duty by the officers,
and the trial court did not err in granting their motion for judgment on the
pleadings.
{¶27} Steele’s assignment of error is accordingly overruled.
5. Conclusion
{¶28} Because the city was immune from liability as the officers were
engaged in a governmental function when working a security detail outside Cameo
Nightclub, and because the complaint failed to establish a violation of duty by the
officers, the trial court did not err in granting the motion for judgment on the
pleadings, and we affirm its judgment.
Judgment affirmed.
BERGERON and CROUSE, JJ., concur.
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OHIO FIRST DISTRICT COURT OF APPEALS
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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