Full Opinion

[Cite as Carter v. O'Donnell, 2026-Ohio-4484.] COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA LATRICE CARTER, : Plaintiff-Appellant, : No. 116150 v. : DYLAN O’DONNELL, ET AL., : Defendants-Appellees. : JOURNAL ENTRY AND OPINION JUDGMENT: REVERSED AND REMANDED RELEASED AND JOURNALIZED: November 12, 2026 Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-25-121171 Appearances: Monah Law Office, Inc., and Isaac Tom Monah; Friedman, Gilbert & Gerhardstein, LLC, and Terry H. Gilbert, for appellant. Mark D. Griffin, Cleveland Director of Law; William Menzalora, Chief Assistant Director of Law; and Michael J. Pike and Carli R. Young, Assistant Directors of Law, for appellees. SEAN C. GALLAGHER, J.: Plaintiff-appellant Latrice Carter appeals the trial court’s decision to grant a motion to dismiss her complaint pursuant to Civ.R. 12(B)(6). Upon review, we reverse the trial court’s decision and remand the case for further proceedings. On July 21, 2025, Carter filed a complaint against defendants- appellees Dylan O’Donnell and Amanda Rock, who are police officers employed by the Cleveland Police Department. Carter set forth a claim for negligent infliction of emotional distress and alleged appellees recklessly fired upon her daughter’s vehicle in Carter’s presence. According to the allegations set forth in the complaint, the named police officers responded to Carter’s home upon reports that Carter’s daughter was being threatened by her child’s father and his girlfriend. While the police officers were speaking with Carter on the porch of her home, her daughter was traveling home in a vehicle that was being fired upon by an armed third party. As her daughter’s vehicle turned onto Carter’s street, the police officers opened fire upon the vehicle in Carter’s presence. Carter alleges that she emphatically informed the police officers that they were shooting at her daughter, but they continued to shoot at her daughter’s vehicle. The complaint further alleges that Carter’s daughter died at the hospital, and the medical examiner determined the police did not fire the fatal shot. There is no allegation that the police officers caused injury to Carter’s daughter. Carter set forth a claim for negligent infliction of emotional distress. She alleged operative facts and repeatedly asserted appellees’ behavior constituted “reckless conduct,” and she asserted that their reckless conduct caused her to suffer “undue emotional distress, trauma, and post-traumatic stress disorder despite her daughter dying from another shooter.” Other allegations are set forth in the complaint. Appellees filed a motion to dismiss the complaint pursuant to Civ.R. 12(B)(6) for failure to state a claim upon which relief can be granted. Appellees argued that Carter’s sole claim for negligent infliction of emotional distress is barred by statutory immunity and that they are entitled to judgment as a matter of law. In opposing the motion, Carter argued that her claim is not barred by statutory immunity as a matter of law, and she maintained that the complaint sufficiently states a claim for negligent infliction of emotional distress arising from the alleged reckless conduct of appellees in firing upon her daughter’s vehicle in her presence. Ultimately, the trial court granted appellees’ motion to dismiss and found that “Plaintiff’s one-count complaint fails to state a claim against either or both defendants upon which relief may be granted.” Carter has appealed the trial court’s decision. Under her sole assignment of error, Carter claims the trial court erred in granting appellees’ motion to dismiss by resolving a fact-dependent statutory-immunity defense at the pleading stage and by failing to accept the allegations of reckless and wanton conduct as true. We find merit to her argument. This court has previously set forth the review standard for a ruling on a Civ.R. 12(B)(6) motion to dismiss as follows: Appellate courts review a Civ.R. 12(B)(6) dismissal under a de novo standard, “performing an independent review of the record and giving no deference to the lower court’s decision.” Bitounis v. Interactive Brokers, L.L.C., 2026-Ohio-2268, ¶ 11. This court must “accept the factual allegations in the amended complaint as true and make all reasonable inferences in favor of the nonmoving party to determine, as a matter of law, whether the allegations in the amended complaint state a claim for relief within the scope of,” in this case, R.C. Ch. 2744’s political subdivision immunity. Id. “The question is not whether the plaintiffs will ultimately prevail, but whether the factual allegations, which we assume to be true, describe conduct falling within the purview of” the applicable law. Id. Higgins v. Greater Cleveland Regional Transit Auth., 2026-Ohio-3120, ¶ 4 (8th Dist.). In this matter, appellees argue that as employees of a political subdivision they enjoy a broad grant of immunity under R.C. 2744.03(A)(6) and that none of the exceptions to immunity apply. As relevant herein, an employee of a political subdivision “is immune from liability unless . . . [t]he employee’s acts or omissions were . . . in a wanton or reckless manner.” R.C. 2744.03(A)(6)(b). Appellees point to cases that have found this exception does not reach allegations of merely negligent conduct, and they advocate for a determination that government employees are statutorily immune from negligence claims as a matter of law. We do not agree with their argument. Among other authority cited by appellees is this court’s decision in Tuleta v. Med. Mut. of Ohio, 2014-Ohio-396 (8th Dist.), wherein this court recognized that “[a]n employee of a political subdivision is immune from liability for negligent acts or omissions” and found that a claim for negligent infliction of emotional distress against a police chief should have been dismissed. Id. at ¶ 58- 59. However, in Tuleta, the complaint contained bare legal conclusions and did not set forth any operative facts that would amount to malice, bad faith, or wanton or reckless conduct. Id. at ¶ 41, 50, 56. Appellees also cited Piro v. Franklin Twp., 102 Ohio App.3d 130 (9th Dist. 1995), a factually distinguishable case decided on a motion for summary judgment, wherein the Ninth District found a claim for negligent infliction of emotional distress was precluded by political-subdivision immunity and indicated that “[a] finding that Piro could maintain a tort claim grounded in negligence is inconsistent with R.C. 2744.03(A)(6)(b).” Piro at 143. In arguing that her claim is not barred by statutory immunity as a matter of law, Carter asserted that the cases relied upon by appellees are distinguishable, and she cited the Sixth District’s case in David v. Matter, 2017- Ohio-7351 (6th Dist.). In David, which is comparable to this case, the plaintiff brought an action against two police officers who shot and killed her husband while they were responding to a call about a man with a gun. Id. at ¶ 2. The trial court therein denied a motion to dismiss a claim for negligent infliction of emotional distress that was based on alleged reckless behavior, concluding this would overcome a claim of statutory immunity under R.C. 2744.03(A)(6). David at ¶ 4. In affirming that decision, the Sixth District rejected an argument that statutory immunity automatically bars a claim for negligent infliction of emotional distress and declined to follow cases such as Piro. David at ¶ 18-20. Instead, the Sixth District followed cases in which “courts look beyond the name of the cause of action to the operative facts alleged to determine if an exception to immunity has been asserted or evidence of an exception had been presented.” David at ¶ 19, citing Stoll v. Gardner, 2009-Ohio-1865, ¶ 14 (9th Dist.); Piispanen v. Carter, 2006- Ohio-2382, ¶ 29 (11th Dist.); Gomez v. Noble Cty. Children Servs., 2010-Ohio- 1538, ¶ 19 (7th Dist.). In accordance therewith, the Sixth District held that “the claim of negligent infliction of emotional distress by a bystander can be asserted against a political subdivision employee so long as the bystander also alleges the employee actions met one of the higher standards of intent identified in R.C. 2744.03(A)(6).” David at ¶ 20. Upon our review, we find the instant case to be distinguishable from Tuleta and Piro, and we agree with the majority opinion in David. As this court recognized in Higgins, 2026-Ohio-3120 (8th Dist.), “R.C. 2744.03(A)(6) ‘permits plaintiffs to sue and hold liable employees of a political subdivision if the employees’ acts or omission in the course and scope of their employment were wanton or reckless.’” Higgins at ¶ 19, quoting Maternal Grandmother, ADMR v. Hamilton Cty. Dept. of Job & Family Servs., 2021-Ohio-4096, ¶ 7. In Maternal Grandmother, the Supreme Court of Ohio observed as follows: Ohio law generally provides political subdivisions and their employees with immunity from lawsuits and liability. R.C. 2744.02(A)(1) and 2744.03(A)(6). That immunity is not absolute, however. In fact, as relevant here, Ohio law permits plaintiffs to sue and hold liable employees of a political subdivision if the employees’ acts or omissions in the course and scope of their employment were wanton or reckless. R.C. 2744.03(A)(6)(b). Maternal Grandmother at ¶ 7. This is not a case involving allegations of mere negligence. In this action, Carter’s complaint sets forth allegations of recklessness, that if taken as true, are clearly sufficient to survive a Civ.R. 12(B)(6) motion to dismiss for failure to state a claim upon which relief may be granted. See Higgins at ¶ 20-25; David at ¶ 20-24. As the Supreme Court of Ohio has recognized, “in the context of R.C. 2744.03(A)(6)(b), recklessness is a perverse disregard of a known risk” and “necessarily requires something more than mere negligence.” (Citations omitted.) O’Toole v. Denihan, 2008-Ohio-2574, ¶ 73-74. “The actor must be conscious that his conduct will in all probability result in injury.” (Cleaned up.) Id. at ¶ 74. Here, the complaint describes more than mere negligence and includes sufficient allegations of reckless conduct such that the granting of a dismissal on the basis of political-subdivision immunity was premature. See Higgins at ¶ 24; David at ¶ 22- 24. Accordingly, we conclude that appellees’ motion to dismiss should have been denied in this case. We are not persuaded by any of appellees’ other arguments. Carter’s assignment of error is sustained. Judgment reversed; case remanded. It is ordered that appellant recover from appellees 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 common pleas 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 LISA B. FORBES, P.J., and MARY J. BOYLE, J., CONCUR