Lewis v. Griffin

[Cite as Lewis v. Griffin, 2026-Ohio-4369.] COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA DANIELLE LEWIS, ET AL., : Plaintiffs-Appellees, : No. 115773 v. : MARK D. GRIFFIN, ET AL., : Defendants-Appellants. : JOURNAL ENTRY AND OPINION JUDGMENT: AFFIRMED IN PART, REVERSED IN PART AND REMANDED RELEASED AND JOURNALIZED: November 5, 2026 Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-25-117487 Appearances: Friedman, Domiano & Smith Co., L.P.A., and Marco G. Bocciarelli, for appellee. Mark D. Griffin, Cleveland Director of Law, James R. Russell, Jr., Chief Assistant Director of Law, and Michael A. Arnold and Michael J. Pike, Assistant Directors of Law, for appellant. MICHAEL JOHN RYAN, J.: Defendant-appellant the City of Cleveland (“the city”) appeals the trial court’s denial of its Civ.R. 12(B)(6) motion to dismiss. For the reasons that follow, we affirm in part, reverse in part, and remand. Plaintiff-appellee Danielle Lewis and her minor child (at times collectively referred in the singular as “Lewis”) were involved in a motor vehicle accident with Cleveland police officer Bryce Carmichael (“Officer Carmichael”), who was driving his city-owned zone car and responding to an accident at the time of the collision. Lewis filed suit alleging negligence against Mark Griffin (“Griffin”), the city’s law director; Officer Carmichael; and the Cleveland Division of Police. Lewis alleged that Officer Carmichael, while in the course and scope of his employment with the city, negligently operated his vehicle into the side of the vehicle Lewis was driving, causing personal injuries to Lewis and her minor child. Count 1 of the complaint alleged Officer Carmichael “negligently operated a motor vehicle,” causing Lewis to suffer injuries and damages. Count 2 alleged that, because of Carmichael’s negligence, Lewis’s minor child was injured and Lewis suffered emotional distress. Count 3 alleged that the Cleveland Division of Police “negligently hired, trained, supervised, and/or otherwise was negligent in its employment of Bryce T. Carmichael.” Count 4 asserted that the Cleveland Division of Police was liable under the doctrine of respondeat superior for the negligence of Officer Carmichael.  The defendants moved to dismiss Lewis’s complaint pursuant to Civ.R. 12(B)(6) for failure to state a claim, arguing, among other things, that they were entitled to immunity under R.C. Ch. 2744. Lewis filed an amended complaint, naming the city as a new party defendant. Counts 1 and 2 remained the same but in Counts 3 and 4, Lewis alleged claims against the city, not the Cleveland Division of Police. Lewis subsequently dismissed the complaint against defendants Griffin, Officer Carmichael, and the Cleveland Division of Police, leaving the city as the only defendant. The trial court denied the city’s Civ.R. 12(B)(6) motion to dismiss. The trial court noted that the voluntary dismissal of defendants Griffin, Officer Carmichael, and the Cleveland Division of Police rendered all arguments as to those defendants moot. The trial court stated that it could not “conclude that the pleadings obviously or conclusively establish the affirmative defense of political- subdivision immunity as to Defendant City of Cleveland. The Plaintiff has alleged a set of facts that, if proven, would plausibly allow for recovery.” This appeal followed. The city assigns two errors, which we combine for review: I. The trial court erred in denying the City of Cleveland’s Civ.R. 12(b)(6) motion to dismiss appellees’ negligent hiring claim because political subdivision immunity bars such claims under R.C. chapter 2744. II. The trial court erred in denying the City of Cleveland’s Civ.R. 12(b)(6) motion to dismiss appellees’ respondeat superior claim because appellees failed to establish any applicable exception to political subdivision immunity under R.C. Chapter 2744. The City is Not Immune From Liability Pursuant to R.C. Ch. 2744 On Lewis’s Negligence And Respondeat Superior Claims The city argues that the trial court erred in denying its motion to dismiss, brought pursuant to Civ.R. 12(B)(6), because it is immune under R.C. Ch. 2744, the Political Subdivision Tort Liability Act. Appellate courts employ a de novo review when considering a Civ.R. (12)(B)(6) motion to dismiss. Bykova v. Cleveland, 2025-Ohio-3285, ¶ 12 (8th Dist.), citing Fried v. Friends of Breakthrough Schools, 2020-Ohio-4215 (8th Dist.). Therefore, this court independently reviews the record and does not afford deference to the decision of the trial court. Id., citing id. “For a trial court to dismiss a complaint under Civ.R. 12(B)(6), it must appear 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.” Fried at ¶ 16, citing Doe v. Archdiocese of Cincinnati, 2006-Ohio-2625. Generally, in considering whether a complaint should be dismissed pursuant to Civ.R. 12(B)(6), a court’s review is limited to the four corners of the complaint, along with any documents properly attached to or incorporated within the motion to dismiss. High St. Properties, L.L.C. v. Cleveland, 2015-Ohio-1451, ¶ 17 (8th Dist.), citing Grady v. Lenders Interactive Servs., 2004-Ohio-4239 (8th Dist.), and Glazer v. Chase Home Fin. L.L.C., 2013-Ohio-5589 (8th Dist.). “All factual allegations stated in the complaint must be presumed to be true and all reasonable inferences in favor of the nonmoving party be made.” Cole v. John G. Johnson & Sons, 1995 Ohio App. LEXIS 4073, *3 (8th Dist. Sept. 21, 1995), citing Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190 (1988). A plaintiff is not required to prove their case at the pleading stage. Cole at id. “The court may not grant a motion to dismiss if there is a set of facts consistent with the complaint which would allow the plaintiff to recover.” Cole at *3-*4, citing York v. Ohio State Highway Patrol, 60 Ohio St.3d 143 (1991). Lewis alleged that the city was liable for the actions of Officer Carmichael, who drove his zone car negligently into her vehicle, causing injuries to herself and her minor child and damage to the car. “The determination of whether a political subdivision, such as [the city], is entitled to the affirmative defense of immunity involves a three-tier analysis.” Fried, 2020-Ohio-4215, ¶ 17 (8th Dist.), citing Hunt v. Cleveland, 2016- Ohio-3176 (8th Dist.). First, R.C. 2744.02(A)(1) provides a general grant of immunity to political subdivisions: “[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.” To overcome this general grant of immunity, a plaintiff must show that one of the exceptions in R.C. 2744.02(B) applies. If no exception applies, the political subdivision is immune from liability. If an exception applies, the burden shifts back to the political subdivision to demonstrate application of one of the defenses in R.C. 2744.03.  Lewis relies on R.C. 2744.02(B)(1), which provides an exception to immunity for negligent operation of motor vehicles by municipal employees: Subject to sections 2744.03 and 2744.05 of the Revised Code, a political subdivision is liable in damages in a civil action for injury, death, or loss to person or property allegedly caused by an act or omission of the political subdivision or of any of its employees in connection with a governmental or proprietary function, as follows: (1) Except as otherwise provided in this division, political subdivisions are liable for injury, death, or loss to person or property caused by the negligent operation of any motor vehicle by their employees when the employees are engaged within the scope of their employment and authority. The city argues that it is immune from liability because Officer Carmichael was responding to an emergency. R.C. 2744.02(B)(1)(a) provides that it is a complete defense to liability if “[a] member of a municipal corporation police department or any other police agency was operating a motor vehicle while responding to an emergency call and the operation of the vehicle did not constitute willful or wanton misconduct.” To support its claim that Officer Carmichael was responding to an emergency, the city attached to its motion to dismiss a police report from a car crash that it alleges Officer Carmichael was responding to when the incident with Lewis occurred. The city contends that it was proper for the trial court to have considered the report because a trial court can take judicial notice of public records, and crash reports are accessible from the internet. We disagree. In Hersh v. Grumer, 2021-Ohio-2582 (8th Dist.), this court considered a police report the defendants had attached in response to a Civ.R. 12(C) motion for judgment on the pleadings.1 This court found that the police reports were not properly incorporated into the pleadings. Id. at ¶ 10. ‘“Pursuant to ‘Civ.R. 7(A), only complaints, answers and replies constitute pleadings.”’ Hersh at id., quoting State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545, 549 (1992). This court reasoned that although Civ.R. 10(C) provides that a “written instrument” attached to a pleading becomes part of the pleading, ‘“not every document attached to a pleading constitutes a Civ.R. 10(C) written instrument.”’ Hersh at id., quoting State ex rel. Leneghan v. Husted, 2018-Ohio-3361, ¶ 17. Rather, a written instrument “has primarily been interpreted to include documents that evidence the parties’ rights and obligations, such as negotiable instruments, ‘insurance policies, leases, deeds, promissory notes, and contracts.”’ (Cleaned up.) Hersh at id. This court concluded that the police reports were not written instruments incorporated into the pleadings. Based on Hersh, the police report at issue here was not a “written instrument” properly incorporated into the city’s motion to dismiss. Moreover, had the trial court wanted to consider the police report, the proper vehicle for it to do so would have been to convert the motion to dismiss into a motion for summary judgment. Hersh at ¶ 11. Civ.R. 12(B) provides that “[w]hen a motion to dismiss for failure to state a claim upon which relief can be granted 1 We recognize that the motion at issue in this case was filed pursuant to Civ.R. 12(B)(6). But, as the Hersh Court noted, appellate courts analyze a Civ.R. 12(C) motion for judgment on the pleadings “‘under the same principles that this court would apply in analyzing a motion to dismiss pursuant to Civ.R. 12(B)(6).’” Hersh at ¶ 6, quoting Jordan v. Giant Eagle Supermarket, 2020-Ohio-5622, ¶ 21 (8th Dist.). presents matters outside the pleading and such matters are not excluded by the court, the motion shall be treated as a motion for summary judgment and disposed of as provided in Rule 56.” In other words, ‘“[d]ocuments that are attached to a motion to dismiss may not be considered, unless [the trial] court properly converts the matter to a motion for summary judgment pursuant to Civ.R. 56.”’ Hersh at id., quoting State ex rel. Rice v. Wolaver, 2016-Ohio-320, ¶ 5 (2d Dist.).2 As mentioned, Lewis did not allege in her complaint that Officer Carmichael was responding to an emergency. Thus, considering the four corners of the complaint, the city is not immune from liability on Lewis’s negligence claims as set forth in Counts 1 and 2. In Count 4, Lewis alleged that the city is liable for Officer Carmichael’s conduct under the doctrine of respondeat superior. The city claims that Lewis’s respondeat superior claim fails because the city is entitled to political-subdivision immunity. “Under the doctrine of respondeat superior, a principal or employer may generally be held liable for tortious acts committed by its agents or employees if such acts occur within the scope of the employment relationship.” Riotte v. Cleveland, 2011-Ohio-4507, ¶ 17 (8th Dist.), quoting Pierson v. Rion, 2010-Ohio- 1793, ¶ 44 (2d Dist.). For an act to fall within the scope of employment, it must be 2 As noted in Hersh, a police report may properly be considered on summary judgment only if it is accompanied by an appropriate affidavit. Hersh at id., citing Laughner v. Laughner, 1990 Ohio App. LEXIS 151 (8th Dist. Jan. 25, 1990). No such affidavit accompanied the police report in this case. “calculated to facilitate or promote the business for which the [employee] was employed.” Riotte at id., quoting Osborne v. Lyles, 63 Ohio St.3d 326, 329 (1992). “‘Similar to civil conspiracy, respondeat superior is a derivative claim.’” Orac v. Montefiore Found., 2024-Ohio-4904, ¶ 22 (8th Dist.), quoting Albain v. Flower Hosp., 50 Ohio St.3d 251, 255 (1990) (“In the employment-law context, ‘the most common form of derivative or vicarious liability is that imposed by the law of agency, through the doctrine of respondeat superior.’”) Therefore, “‘a principal is vicariously liable only when an agent could be held directly liable.’” Id., quoting Natl. Union Fire Ins. Co. v. Wuerth, 2009-Ohio-3601, ¶ 22. We note that Lewis dismissed her claims against Officer Carmichael, but it was done without prejudice and otherwise than on the merits; therefore, her claim against the city may proceed. See Orac at ¶ 42 (employee does not need to be found individually liable or named in the complaint in order to bring a respondeat superior claim against the employer); but see Pascoe v. Detke, 2026-Ohio-1971 (8th Dist.) (finding that a respondeat superior claim brought against a real estate agency failed because the claims against the agency’s employee failed as a matter of law). The City is Immune From Liability On Lewis’s Failure-to-Train Claim The city contends that it is immune from liability because Lewis’s claim as set forth in Count 3 of her amended complaint is based on negligent hiring, training, or supervision (“failure to train”). The Ohio Supreme Court has found that R.C. Ch. 2744 does not impose liability on a political subdivision for allegedly violating a duty in hiring, training, or supervising an employee. In McConnell v. Dudley, 2019-Ohio-4740, the Court held: Because the language of R.C. 2744.02(B)(1) is plain and unambiguous, it must be applied, not interpreted . . . . R.C. 2744.02(B)(1) allows political subdivisions to be held liable for an employee’s negligent operation of a motor vehicle; it does not, however, allow a political subdivision to be held liable for consequences arising from an employee’s training or the supervision of that employee in operating the motor vehicle. Id. at ¶ 2. See also Moree v. Greater Cleveland Regional Transit Auth., 2024-Ohio- 6031, ¶ 56 (8th Dist.) (holding that a political subdivision cannot “be held liable for consequences arising from an employee’s training or the supervision of that employee in operating [a] motor vehicle” under R.C. 2744.02(B)(1)). This court has recognized that even if a political subdivision is immune from liability, a municipality’s employees may be held individually liable for their intentional torts upon a showing of malice or wanton or reckless behavior, or if the employees’ actions were manifestly outside the scope of the employees’ employment or official responsibilities. Digiorgio v. Cleveland, 2011-Ohio-5878, ¶ 37 (8th Dist.), citing R.C. 2744.03(A)(6)(a) and (b). Lewis alleged negligence; she did not allege malice or wanton or reckless behavior. Therefore, we find that the city is immune from liability on Lewis’s failure to train claim — Count 3 — and thus the trial court erred in denying the city’s motion to dismiss on that claim. The First Amended Complaint Alleged Sufficient Facts to Withstand a Motion to Dismiss The city also argues that Lewis’s attempt to evade the city’s immunity fails because the complaint does not allege sufficient facts to establish such conduct.  Ohio is a notice pleading state. The purpose of notice pleading provisions is to notify a defendant of the allegations against them so that they might prepare a proper defense. Cole, 1995 Ohio App. LEXIS, at *4, citing Konicki v. Salvaco, Inc., 16 Ohio App.3d 40 (2d Dist. 1984). Civ.R. 8(A) states that a claim “shall contain (1) a short and plain statement of the claim showing that the party is entitled to relief.” A court accepts as true all material factual allegations in the complaint and construes all reasonable inferences in favor of the nonmoving party. High Street, 2015-Ohio-1451, at id. (8th Dist.), citing Fahnbulleh v. Strahan, 73 Ohio St.3d 666 (1995). In assessing a trial court’s dismissal of a complaint, a reviewing court examines only the allegations of the complaint. Assuming those allegations to be true, a dismissal may be affirmed only if no set of facts exists that would entitle the plaintiff to relief under the allegations of the complaint. Cole at id., citing Rogers v. Targot Telemarketing Serv., 70 Ohio App.3d 689 (10th Dist. 1990). A pleading which sets forth a claim for relief need not state with precision all the elements that give rise to a legal basis for recovery as long as fair notice of the action is provided; however, the pleading must contain either direct allegations on every material point necessary to sustain a recovery on any legal theory, even though it may not be on the theory suggested or intended by the pleader, or contain allegations from which an inference fairly may be drawn that evidence on these material points will be introduced at trial. All pleadings shall be so construed as to do substantial justice. Civ.R. 8(F). (Cleaned up.) Cole at *5-6, quoting Stipanovich v. Applin, 74 Ohio App.3d 506, 599 (8th Dist. 1991).  In arguing that the complaint was insufficiently pled, the city relies on our decision in Digiorgio v. Cleveland, 2011-Ohio-5878 (8th Dist.). In Digiorgio, this court found that the complaint failed on its face when the complaint, which alleged negligence and willful and wanton misconduct, did not allege sufficient facts to support that conclusion. This court reasoned that [t]he factual allegations of the complaint allege only that as she was crossing Prospect Avenue with her husband, Virginia DiGiorgio was struck and killed by someone driving a stolen car that was being pursued by the police. These “circumstances” do not demonstrate willful and wanton misconduct by the police. The fact that an individual was struck and killed by a stolen vehicle being chased by the police is not sufficient, by itself, to demonstrate willful and wanton misconduct. Appellees’ allegation that the officers’ high speed chase was willful and wanton “under the circumstances” is merely a conclusory statement about the officers’ conduct that is designed to evade the City’s immunity, but is not supported by sufficient factual allegations. Id. at ¶ 42.3 As mentioned, Lewis did not allege willful and wanton misconduct. Lewis alleged that Officer Carmichael “negligently operated a motor vehicle” owned by the city “into the side of” the car she was driving. To establish actionable negligence, a plaintiff must show the existence of a duty, breach of that duty, and an injury proximately resulting from that breach. Cole, 1995 Ohio App. LEXIS 4073, *6, citing Strother v. Hutchinson, 67 Ohio St.2d 282 (1981). 3 DiGiorgio was decided on a Civ.R. 12(C) motion for judgment on the pleadings.  In Cole, this court found that an injured party’s complaint against the Village of Orange and a construction company was sufficient to withstand a Civ.R. 12(B)(6) motion when it alleged that the complainant drove into a construction ditch to avoid a deer, causing damage to his vehicle. Id. at * 6. Although the complainant did not specifically allege negligence, it could be inferred that the defendants should not have placed the ditch so close to the road. “Because there is a set of facts which could exist which would entitle appellant to relief, under the allegations set forth in the complaint, Civ.R. 12(B)(6) dismissal was not appropriate.” Cole at id. In Hampton v. Cleveland, 2016-Ohio-1226 (8th Dist.), a passenger in the back seat of a police cruiser alleged that an officer, “while in the course and scope of his employment with the city of Cleveland and not while responding to an emergency . . . negligently caused the vehicle he was operating to lose control and strike a concrete barrier.” Id. at ¶ 2. The city filed a Civ.R. 12(B)(6) motion to dismiss, which the trial court denied. The city appealed, and this court affirmed the trial court’s judgment, finding that the complaint, which alleged the officer ‘“negligently caused the vehicle he was operating to lose control’ . . . and was not responding to an emergency call when he lost control of the vehicle” adequately pled “the exception to governmental immunity set forth in R.C. 2744.02(B)(1) and stated a claim upon which relief could be granted.” Id. at ¶ 10. Lewis’s allegations of negligence alleged facts sufficient to withstand the City’s motion to dismiss; it can be inferred from the complaint that the city breached its duty when Officer Carmichael operated his vehicle negligently into Lewis’s car, causing injury. Additionally, although Lewis’s complaint did not specifically allege that Officer Carmichael was not responding to an emergency, it can be inferred and, therefore, she adequately pled the exception to political- subdivision immunity set forth in R.C. 2744.02(B)(1). Finally, we note that the city admitted in its motion to dismiss “that Officer Carmichael’s conduct, in operating his police cruiser, amounted at most to negligence[,]” conceding that Officer Carmichael may have been negligent in his operation of his vehicle. (Emphasis in original.) Because Lewis’s complaint meets the standard set forth in Civ.R. 8 and the city admits its officer may have been negligent, Lewis’s negligence claims stand. Considering the above, the assignments of error are overruled in part and sustained in part. Judgment reversed as to Lewis’s failure-to-train claim and affirmed in all other aspects. Case remanded for the trial court to enter an order granting the city’s motion to dismiss on Lewis’s failure-to-train claim and to proceed on all other claims. It is ordered that appellee and appellant split costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate be sent to said 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. MICHAEL JOHN RYAN, JUDGE MICHELLE J. SHEEHAN, A.J., CONCURS; LISA B. FORBES, J., CONCURS IN JUDGMENT ONLY