[Cite as Ceasor v. East Cleveland, 2018-Ohio-2741.]

Court of Appeals of Ohio 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 106544 

LATOYA CEASOR, INDIVIDUALLY AND AS ADMINISTRATRIX 

PLAINTIFF-APPELLEE 

vs. 

CITY OF EAST CLEVELAND, ET AL.

 DEFENDANTS-APPELLANTS 

JUDGMENT:

AFFIRMED AND REMANDED 

 

Civil Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CV-16-858916 

BEFORE: McCormack, P.J., Laster Mays, J., and Jones, J. 

RELEASED AND JOURNALIZED: July 12, 2018 
ATTORNEY FOR APPELLANTS 

Willa M. Hemmons 

Law Director 

City of East Cleveland 

14340 Euclid Avenue 

East Cleveland, OH 44112 

ATTORNEYS FOR APPELLEE

Michael D. Goldstein 

Joseph N. Cindric 

Goldstein & Goldstein Co., L.P.A. 

55 Public Square, Suite 2075 

Cleveland, OH 44113 
TIM McCORMACK, P.J.: 

{¶1} Defendants-appellants, the city of East Cleveland (“the city”) and East Cleveland 

patrol officer Kyle Pettus (“Pettus”), appeal from the trial court’s denial of their motion for 

summary judgment. For the reasons that follow, we affirm and remand.

Procedural and Substantive History

{¶2} This appeal stems from a wrongful death action instituted against the city of East 

Cleveland. The following factual summary is based on the Ohio State Highway Patrol 

Reconstruction Report. Both parties relied on this report in their filings before the trial court. 

{¶3} On October 3, 2015, at approximately 9:30 p.m., 22-year-old Christopher Kimble 

(“Kimble”) was in a crosswalk when Pettus struck and killed him. Pettus was driving a police 

cruiser with one nonfunctioning headlight. Additionally, the cruiser’s lights and sirens were not 

activated. The speed limit for the area of the incident, the intersection of Superior Avenue and 

Emily Street in East Cleveland, was 25 miles per hour. At the time of the accident, Pettus was 

traveling eastbound on Superior Avenue at a speed of approximately 35 to 40 miles per hour. 

At the time of the accident, the painted crosswalks at the intersection were worn out and not 

visible. Further, the crosswalk signs were inoperable. Superior Avenue had flashing yellow 

lights, and Emily Street had flashing red lights. The roadway was dark, and the nearby 

overhead street lights were inoperable. 

{¶4} On February 12, 2016, plaintiff-appellee Latoya Ceasor (“Ceasor”) filed a 

complaint against the city and Pettus in the Cuyahoga County Court of Common Pleas. Ceasor 

is the decedent Kimble’s mother and the duly appointed administrator of his estate. 
{¶5} The complaint alleged that Pettus’s operation of the police cruiser that struck 

Kimble constituted negligent, reckless, willful, and/or wanton misconduct. These allegations 

were based on Pettus’s driving at an excessive rate of speed through an intersection known to be 

heavily populated by pedestrians, traveling at an excessive rate of speed without implementing 

his sirens or emergency lights, operating the vehicle with only one working headlight at night, 

and failing to keep proper lookout. 

{¶6} The complaint further alleged that the city was negligent in failing to properly 

maintain or design the intersection, failing to properly maintain its police motor vehicles and 

property, and failing to properly train its officers. 

{¶7} The complaint also specifically alleged that the city was vicariously liable for 

Pettus’s actions and that Pettus was liable pursuant to the exception to political subdivision 

immunity codified in R.C. 2744.03(A)(6)(b). Finally, Ceasor alleged that the city and/or Pettus 

were liable for spoliation for intentionally and/or negligently destroying or failing to record and 

preserve body camera evidence. 

{¶8} On February 26, 2016, the city and Pettus (collectively, “defendants”) filed a joint 

answer. 

{¶9} On August 28, 2017, defendants filed a motion for summary judgment and a 

motion to dismiss pursuant to Civ.R. 56, arguing that none of the exceptions to sovereign 

immunity in R.C. 2744.02(B) apply to this case, and that Ceasor failed to present evidence 

sufficient to create a genuine issue of material fact. 

{¶10} On September 26, 2017, Ceasor filed a memorandum in opposition to defendants’ 

motion for summary judgment. 
{¶11} On October 4, 2017, defendants filed a motion to strike the expert report attached 

to Ceasor’s September 26 memorandum in opposition to summary judgment. The report in 

question was a crash reconstruction report prepared by Ohio State Highway Patrol Lieutenant 

John C. Thorne and was attached to defendants’ motion for summary judgment. On October 6, 

2017, defendants filed a reply brief in support of their motion for summary judgment. 

{¶12} The city appeals from the trial court’s denial of its motion for summary judgment, 

presenting the following four assignments of error for our review: 

I. In the absence of any genuine issue of material fact the trial court’s denial of 

defendants’/appellants’ motion for summary judgment asserting entitlement to 

R.C. [Chapter] 2744 immunity constituted reversible error. 

II. The trial court erred to the prejudice of defendants/appellants in failing to strike 

plaintiffs’ expert report. 

III. Absent an expert opinion on the issues of proximate causation and culpability 

Ms. Ceasor was incapable of defeating the city defendants’ entitlement to 

immunity; and accordingly this court should find that summary judgment in favor 

of the city defendants was warranted. 

IV. In the absence of any genuine issue of material fact, the trial court’s denial of 

[defendants’/appellants’] motion for summary judgment on [plaintiff’s] claim of 

spoliation constituted reversible error. 

Law and Analysis

I. Jurisdiction

{¶13} We must, as an initial matter, address jurisdiction. In general, an order denying a 

motion for summary judgment is not a final, appealable order. Hubbell v. Xenia, 115 Ohio 

St.3d 77, 2007-Ohio-4839, 873 N.E.2d 878, ¶ 9, citing State ex rel. Overmeyer v. Walinski, 8 

Ohio St.2d 23, 24, 222 N.E.2d 312 (1966). However, “when a trial court denies a motion in 

which a political subdivision or its employee seeks immunity under R.C. Chapter 2744, that 
order denies the benefit of an alleged immunity and thus is a final, appealable order pursuant to 

R.C. 2744.02(C).” Id. at ¶ 27. 

{¶14} Our jurisdiction in this case is limited to the review of alleged errors in the portion 

of the trial court’s decision that denied the city the benefit of immunity. Reinhold v. Univ. Hts., 

8th Dist. Cuyahoga No. 100270, 2014-Ohio-1837, ¶ 21, citing Riscatti v. Prime Properties Ltd. 

Partnership, 137 Ohio St.3d 123, 2013-Ohio-4530, 998 N.E.2d 437, ¶ 20. This jurisdictional 

limitation includes a denial of summary judgment based on proximate causation, as whether 

immunity applied is a separate and distinct inquiry from whether conduct is a proximate cause of 

harm. Gates v. Leonbruno, 2016-Ohio-5627, 70 N.E.3d 1110, ¶ 30 (8th Dist.), citing Hardesty 

v. Alcantara, 2015-Ohio-4591, 48 N.E.3d 127 (8th Dist.). Therefore, we decline to consider the 

arguments raised in the third and fourth assignments of error, relating to the merits of Ceasor’s 

negligence and spoliation claims, because they do not pertain to the issue of immunity and are 

thus not yet ripe for review. Id. at 47. 

II. Immunity

{¶15} A trial court’s summary judgment determination is reviewed de novo. Grafton v. 

Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). This court independently 

reviews the record to determine whether summary judgment is appropriate. Summary judgment 

is appropriate when “(1) no genuine issue as to any material fact exists; (2) the party moving for 

summary judgment is entitled to judgment as a matter of law; and (3) viewing the evidence most 

strongly in favor of the nonmoving party, reasonable minds can only reach one conclusion which 

is adverse to the nonmoving party.” Hull v. Sawchyn, 154 Ohio App.3d 193, 196, 762 N.E.2d 

416 (8th Dist.2001). 
{¶16} On a motion for summary judgment, the moving party carries the initial burden of 

identifying specific facts in the record that demonstrate his or her entitlement to summary 

judgment. Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264 (1996). If the 

moving party fails to meet this burden, summary judgment is not appropriate. Id. at 283. If 

the moving party meets this burden, the nonmoving party has the reciprocal burden to point to 

evidence of specific facts in the record demonstrating the existence of a genuine issue of material 

fact for trial. Id. If the nonmoving party fails to meet this burden, summary judgment is 

appropriate. Id. 

{¶17} In its first assignment of error, the city argues that summary judgment was 

inappropriate because it was entitled to immunity and Ceasor failed to expressly contest that in 

her opposition to its motion for summary judgment. 

{¶18} To determine whether a political subdivision is immune from liability, courts 

employ a three-tiered analysis pursuant to R.C. Chapter 2744. Greene Cty. Agricultural Soc. v. 

Liming, 89 Ohio St.3d 551, 556, 733 N.E.2d 1141 (2000). The first tier of the analysis is the 

general rule that political subdivisions are immune from liability incurred in performing 

governmental or proprietary functions. Id. The first tier is not at issue here. “Thus, the 

relevant point of analysis (the second tier) then becomes whether any of the exceptions in 

R.C. 2744.02(B) apply.” Id. If any of these exceptions apply, and no defense in R.C. 

2744.02(B) applies to protect the political subdivision from liability, we turn to the third tier of 

analysis. Colbert v. Cleveland, 99 Ohio St.3d 215, 2003-Ohio-3319, 790 N.E.2d 781, ¶ 9. 

The third tier 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. 
{¶19} In arguing that it was entitled to immunity, the city asserted that none of the 

exceptions to immunity apply in this case. This assertion was accompanied by a recitation of 

several of the relevant exceptions but was unsupported by law or facts from the case. 

According to the city, because none of the exceptions to immunity apply, it is unnecessary to 

engage in the third tier of the analysis. In response, Ceasor argues that R.C. 2744.02(B)(1) 

provides an exception to the city’s general grant of immunity. That section states: 

[P]olitical 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. 

{¶20} R.C. 2744.02(B)(1)(a) provides that where “[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,” that constitutes a full defense to liability. A further exception to immunity can be 

found in R.C. 2744.03(A)(6)(b), which provides that an employee will not be immune from 

liability where “the employee’s acts or omissions were with malicious purpose, in bad faith, or in 

a wanton or reckless manner.” Ceasor argues that defendants are not entitled to immunity 

because of Pettus’s negligent operation of a motor vehicle, pursuant to R.C. 2744.02(B)(1). The 

city asserts that Pettus was responding to an emergency call when the fatal accident occurred. 

We note that the city implicitly asserts that Pettus was not negligent, and therefore it does not 

expressly argue that his responding to an emergency call operates as a full defense to liability 

pursuant to R.C. 2744.02(B)(1)(a). Even if it did, though, Ceasor argues that this cannot 

operate as a full defense because Pettus acted in a “wanton or reckless manner” pursuant to R.C. 

2744.03(A)(6)(b). 
{¶21} We find the city’s unsupported assertions insufficient for summary judgment 

purposes. A party moving for summary judgment must affirmatively establish that the 

nonmoving party’s claims lack support by pointing to evidence in the form of pleadings, 

depositions, answers to interrogatories, written admissions, or affidavits. Civ.R. 56(C). While 

the city appended several documents to its motion for summary judgment, at no point has it 

pointed to any evidence that support its entitlement to immunity. We agree with the trial court 

that there are genuine issues of material fact as to whether Pettus was engaged in “willful or 

wanton misconduct” or acted in a “wanton or reckless manner.” Because the issue of whether 

an employee acted in a wanton or reckless manner under R.C. 2744.03(A)(6)(b) is typically a 

question of fact for the jury, a trial court may not grant summary judgment on the basis of R.C. 

2744.03(A)(6) immunity unless reasonable minds could only conclude that the employee did not 

act in a wanton or reckless manner. Chavalia v. Cleveland, 2017-Ohio-1048, 87 N.E.3d 705, ¶ 

33 (8th Dist.). 

{¶22} “Wanton misconduct is the failure to exercise any care toward those whom a duty 

of care is owed in circumstances in which there is a great probability that harm will result.” Id. 

at ¶ 34, citing Anderson v. Massillon, 134 Ohio St.3d 380, 2012-Ohio-5711, 983 N.E.2d 266. 

“Reckless conduct is characterized by the conscious disregard of or indifference to a known or 

obvious risk of harm to another that is unreasonable under the circumstances and is substantially 

greater than negligent conduct.” Id. Here, Pettus was speeding through a dark intersection 

known to be frequently populated with pedestrians in a vehicle with one working headlight. His 

own testimony establishes that his visibility was significantly compromised and that he had not 

activated his overhead lights or sirens. This evidence is sufficient to create a genuine issue of 
material fact as to the city’s entitlement to immunity. Therefore, the city’s first assignment of 

error is overruled. 

III. Motion to Strike 

{¶23} In its second assignment of error, the city argues that the trial court failed to strike 

Ceasor’s expert report. This assignment of error is meritless. We review a trial court’s 

decision to grant or deny a motion to strike for abuse of discretion. “The trial court has broad 

discretion in the admission of evidence and unless it has clearly abused its discretion and the 

defendant has been materially prejudiced thereby, an appellate court should not disturb the 

decision of the trial court.” State v. Joseph, 73 Ohio St.3d 450, 460, 653 N.E.2d 285 (1995), 

citing State v. Maurer, 15 Ohio St.3d 239, 239, 473 N.E.2d 768 (1984). An abuse of discretion 

connotes more than an error of law or of judgment; it implies that the court’s attitude is 

unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 

450 N.E.2d 1140 (1983). Here, the city filed a motion to strike the crash reconstruction report 

that Ceasor attached to her opposition to the city’s motion for summary judgment. This report 

had previously been attached to the city’s motion for summary judgment. The city does not 

argue that the report is not proper Civ.R. 56 evidence. Instead, in support of this motion, the 

city argued that it was untimely filed and therefore failed to comply with Loc.R. 21.1(B) of the 

Court of Common Pleas of Cuyahoga County, General Division. Because the motion was 

properly before the trial court as Civ.R. 56 evidence for summary judgment purposes, we cannot 

conclude that the trial court abused its discretion in denying the city’s motion to strike. 

{¶24} For these reasons, we affirm the judgment of the trial court and remand for further 

proceedings. 

It is ordered that appellee recover of appellants 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. 

________________________________________ 

TIM McCORMACK, PRESIDING JUDGE 

ANITA LASTER MAYS, J., and 

LARRY A. JONES, SR., J., CONCUR