COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72526 JOHN VENTURA : : Plaintiff-appellant : : JOURNAL ENTRY vs. : and : OPINION CITY OF INDEPENDENCE, et al : : Defendants-appellees: : DATE OF ANNOUNCEMENT OF DECISION : MAY 7, 1998 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Case No. 297,256 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: TIMOTHY N. TOMA MICHAEL P. LAVIGNA, JR. Attorneys at Law 27801 Euclid Avenue, #500 Euclid, Ohio 44132 For defendants-appellees: STEPHEN M. O'BRYAN Law Director, City of Independence MARK J. VALPONI KURT D. WEAVER Attorneys at Law Kelley, McCann & Livingstone BP America Building, 35th Floor 200 Public Square Cleveland, Ohio 44114-2302 KENNETH A. ROCCO, J.: -2- Plaintiff-appellant John Ventura appeals from the trial court order granting the motion for summary judgment filed by defendants- appellees City of Independence, Ohio, and its employees Walter Ellert, Dorothy Ornas, Dennis Messina and George Spilker. Appellant, a former city worker, had alleged in his complaint causes of action against appellees for intentional tort and intentional infliction of emotional distress. Appellant challenges the trial court's order on two bases: viz., that genuine issues of material fact remain as to his causes of action and, further, that his claims are not barred by the immunity granted to appellees pursuant to R.C. 2744.02(A)(1). This court has reviewed the record, finds the trial court properly granted summary judgment for appellees since R.C. 2744.09(B) does not create an exception to the immunity granted to appellees by R.C. 2744.02(A)(1), and, therefore, affirms the trial court's decision. The record reflects appellant began his employment with appellee City of Independence in May, 1977. Appellant was hired as a "Grade 3"1 maintenance worker. His duties included sweeping, washing and waxing floors, walls and vehicles, maintaining city properties, removing organic substances, and performing miscella- neous labor. Within six months, appellant had been promoted to "Grade 2," so that his duties had increased. Appellant at that time was 1Quotes are taken from the evidentiary material filed in the trial court in connection with appellees' motion for summary judg- ment. -3- expected to perform the following tasks as part of his job description: repair and maintenance of city streets, sewers, sidewalks, equipment, buildings and other city property; snow plowing; landscaping; spreading of asphalt; and painting of city buildings and signs. In performing these duties, appellant was required to use city trucks and gasoline-powered equipment. In December, 1982 appellant received a promotion to a "Grade 1" maintenance position. The job description of a "Grade 1" posi- tion required the worker to work with, inter alia, asphalt, gasoline, disinfectants, sewer chemicals, and weed killers. In addition to the duties of both Grade 2 and Grade 3 workers, appellant's new job duties required him also to operate all of the city's mobile equipment, direct assigned crews in appropriate job methods, and be available for work assignments during other than regularly-scheduled hours.2 In January, 1990 appellee Dorothy Ornas became the city's service director; therefore, it was her responsibility to monitor all of the service employees, including appellant. In March, 1991 appellant noticed he had trouble breathing while driving a city truck. Appellant neither took sick leave due to the incident nor consulted a doctor concerning it. On October 21, 1991 appellant took sick leave in order to consult a physician, Dr. Papsidero, of the Cleveland Ear, Nose, Throat and Facial Surgery Group, Inc., concerning a lump in his 2Appellant also eventually was hired part-time by the city as a police officer and fireman. -4- left nostril that was obstructing the passage of air through it. Seven days later, appellant was involved in an accident at work: while driving one of the city's garbage trucks, appellant unknow- ingly backed it over another worker who had fallen from it. The accident affected appellant by causing him to be visibly upset. Appellant took time off from work to recover. Upon his return, appellant requested of Ornas that she no longer assign him to drive the city garbage truck. On November 30, 1991 appellant also produced a note from Dr. Papsidero, which stated appellant should work no midnight shifts or irrigular (sic) hours until further notice. Three weeks later, appellant produced another note from a Dr. David Weiner; this note stated appellant had asthma which is exacerbated by diesel fumes and requested he be excused from driving trucks if he has problems. In January 1992, upon Ornas' urging, appellant consulted both an occupational therapist, Dr. Bray, and a psychiatrist concerning his continuing reluctance after the October 1991 accident to drive city vehicles. Dr. Bray did not submit his report until March 13, 1992. The psychiatrist recommended appellant seek psychotherapy and continue it for six months.3 The following month, appellant's union representatives added their endorsement to a plan for appellant to seek psychiatric counseling for his mental condition. Appellant's status as a 3At this time, appellant was beginning to experience marital difficulties, which he discussed in the subsequent counseling sessions with his psychologist. -5- Grade 1 worker was maintained; a re-evaluation of his status was to be conducted in four months. In the interval, Ornas and appel- lant's shop foreman, appellee Donald Messina, attempted to assign appellant to duties that would comply with Dr. Weiner's request. One of these duties was to accompany the recycling truck, placing items in the truck's bins, and then unload the items at the city garage. On March 7, 1992, at approximately 1:30 a.m. and while appel- lant was working as a security guard at a nightclub, a customer assaulted appellant. Appellant's nose was broken in the incident; the physician he consulted scheduled surgery for April. On March 13, 1992 Dr. Bray, the occupational specialist, submitted his report to Ornas. Bray stated appellant had been diagnosed as having asthma with non-specific hyperactivity and airflow obstruction. Bray opined appellant was reacting to a variety of airborne irritants *** certainly diesel fumes would be a very likely culprit. Bray further stated that asthma was [b]y definition *** a reversible and temporary constriction of the airways. Bray recommended appellant avoid diesel fumes; however, Bray was not convinced appellant need[ed] to be restricted from midnight shifts or irregular hours. Just prior to appellant's scheduled nose surgery, the city's recycling methods became the focus of an investigation by a local television station. The station broadcast the reporter's interview of Ornas about the matter. The following day, while appellant performed his duties with the recycling truck, people *** would -6- make comments to him indicating dissatisfaction with the city's recycling program. Appellant took seven weeks of sick leave to recover from his April 15, 1992 nose surgery, finally returning to his job in June, 1992. In deference to appellant's nose surgery and post-operative recovery, re-evaluation of appellant's grade status was postponed until August. During the month of June, 1992 Ellert replaced appellee Ornas as the city's service director. On July 29, 1992 appellant was re-examined by Dr. Bray in connection with the work restrictions that had been placed upon appellant. In his report dated the following day, Dr. Bray stated appellant continued to exhibit symptoms compatible with asthma, which, for appellant, could be reliably provoked by diesel fumes, cigarette/cigar smoke, high humidity and vigorous exercise in cold weather. Bray stated appellant should continue to be restricted from exposure to diesel fumes and also from working in the early A.M. hours because his performance might not be reliable given the unpredictability of his episodes of asthma ***. On August 30, 1992 Ellert notified both appellant and the city's finance director, appellee George Spilker, by letter that appellant had been re-classified to the status of Grade 3 maintenance worker. Ellert attributed the change to appellant's medical restrictions, which caused appellant to be unable to perform the required duties of the higher grades. The letter stated appellant would be considered for re-classification if his medical condition improved. Appellant subsequently filed a charge -7- with the federal Equal Opportunity Employment Commission ( EEOC ) alleging appellees were discriminating against him on the basis of disability. On August 31, 1992 appellant consulted with a pediatric allergist, Dr. James Sauers. Appellant told Sauers he was having more difficulty when he ran or used his treadmill and when he played saxophone and sang for the band with which he performed. Sauers conducted allergy tests and determined appellant was mildly allergic to, inter alia, dust mites, dog hair,4 grass pollen, and certain molds. Sauers provided appellant with prescriptions for five types of medication. On September 14, 1992 appellant filed his first grievance against the city, challenging an order that he supervise a crew. Over the next few months, appellant filed another three grievances concerning work assignments with which he disagreed. The following week, appellant also revisited Dr. Sauers, complaining of a sore throat and a bee sting. Dr. Sauers found nothing serious; further, an examination of appellant's lung capacity disclosed it was normal. One month later appellant again consulted with Sauers for rhinitis, i.e., an inflammation of his nasal passages. Although appellant complained of shortness of breath with activity, his lung capacity had slightly increased. Appellant also complained to Sauers of the working conditions of the city's garage, showing 4Appellant owned a dog but stated in his deposition it [didn't] have much hair so the dog did not affect him. -8- the doctor a collection of photographs he had taken of its interior. On November 16, 1992, at appellant's request, Sauers signed a letter addressed to whom it may concern, which stated as follows: John Ventura is a 37-year-old gentleman whom I have followed for the past year with respira- tory problems, aggravated by pollutants in his work environment. Mr. Ventura's work is in- volved in an environment inadequately con- trolled from hydrocarbon and exhaust fumes that apparently has inadequate ventilating and environmental control based on demonstration of photographs of the work environment and in completion of systems to avoid the health hazards of these agents in the working area. These chemical intolerances have given respi- ratory problems as well as migrainous head- aches bordering on the chronic fatigue syn- drome relating to chemical toxic factors. These problems interfere not only with Mr. Ventura's work efficiency but are also detri- mental to his health. It is obvious that the respiratory problems have not progressed to a legitimate asthmatic complement but are at risk of doing lung injury in a permanent fashion. It is obvious that these environmen- tal factors are potentially leading toward permanent respiratory and health injuries in an environment that the employer has refused to correct as well as complete so far as environmental safety factors are concerned. This also appears to be a matter of public immunity on the part of the employers despite what appears to be flagrant violations of environmentalsafety. It also is quite appar- ent that the employers have no intention as well as desire to provide an environmentally safe working condition for this as well as the other employees. On January 8, 1993 appellant's wife filed a complaint for divorce. Appellant saw Dr. Sauers three days later, complaining that his asthma was increasing and that he was depressed. -9- Sauers provided appellant with some new medications, including an anti-depressant. On uary 15, 1993 appellant filed a claim with the Ohio Bureau of Workers Compensation seeking benefits for his asthma.5 On January 21, 1993 appellant was called into the office of dJanthe city ga Messina stated to appellant that he was not carrying [his] end of the load. They indicated they had noticed that when appellant and his co-workers returned from a run with the recyclables truck, appellant would not stay to help his co-workers unload; rather, he would retreat to the employees' locker room until the work was completed. Appellant chose this occasion to present Sauers' letter of November 16, 1992 to his supervisors. Appellant stated he could not work in the garage. On February 12, 1993 Ellert and Messina again had a discussion with appellant concerning his refusal to help his co-workers. During the conversation, Ellert allegedly stated that appellant should go stand outside where the air is fresh and clean and also that appellant should get out if he couldn't do the work expected of him. 6 5Appellant's claim subsequently was denied; appellant's appeal of the denial ultimately was unsuccessful. 6Although appellant carried a hidden tape recorder and recorded many of the conversations he had with co-workers and supervisors, appellant later stated he neglected to tape this conversation. -10- On February 18, 1993 one of appellant's co-workers assigned to the recyclables truck called in for an illness. Since another of the workers was not certified to drive the back-up truck and appellant refused to drive trucks, the shortage of manpower meant that appellant could not rotate into the back-up truck's cab during its two- to three-hour run. Although appellant complained about the incident, appellant neither left work early nor failed to come to work the following day. The following week, however, appellant took sick leave for a flu. Although appellant did not consider it necessary to visit a physician for this week-long illness, he was able to obtain a certificate from Sauers, which stated appellant was permitted to return to work on February 26, 1993. Appellant began seeing a psychologist, David House, in March 1993 concerning the emotional difficulties he was experiencing as a result of his divorce proceedings. During this time, while appellant was at work, appellee Messina told him to get his ass over here and limited one of appellant's telephone calls. Appel- lant also lost his position as a part-time police officer for the city. He filed a second complaint with the EEOC over the police matter. On April 26, 1993 appellant had more nose surgery; appellant did not return to work until June 7, 1993. Two weeks later, on June 21, 1993, appellant was assigned to clean a sewer catch basin. Appellant performed a portion of the work but failed to complete it because he nearly passed out. Appellant took sick leave for the -11- remainder of the day. He made an appointment with Sauers that day; at this office visit, appellant mentioned that he felt he never recoup[erat]ed from the incident when he had to work in -20o weather. Sauers gave appellant a note in which he recommended appellant take an extended leave from his work due to his Bron- chial Asthma and Chronic Fatigue Syndrome until further notice. Thereafter, Sauers provided these notes to appellant on approximately a monthly basis until February, 1994. Thus, appel- lant never returned to work for the city. On June 29, 1993 appellant filed a claim for permanent disability with the Public Employees Retirement System of Ohio ( PERS ). Although his claim was opposed by appellee Spilker, representing the city, PERS eventually granted appellant a full disability pension retroactive to August 1, 1993. The record reflects in late 1993 appellant filed a complaint against some of the appellees in federal district court, alleging the following: (1) violations of both the Americans with Disabili- ties Act (43 U.S.C. S12101, et seq.) and the collective bargaining agreement with his union; (2) retaliatory acts against appellant for his complaints to the EEOC; and (3) a claim for intentional infliction of emotional distress under state law. The district court ultimately granted summary judgment in favor of appellees on his federal claims7 and dismissed appellant's state claim without prejudice. 7Appellant thereafter unsuccessfully appealed this decision to both the Federal Court of Appeals and the United States Supreme Court. -12- On October 24, 1995 appellant filed the instant action against appellees. Appellant set forth two claims in his complaint:(1) assigning him to work the recyclables truck on February 18, 19938 without permitting him to rotate constituted an intentional tort on the part of the city and Ellert; and (2) Ornas' and Messina's verbal abuse of him, together with the city's, Ellert's and Spilker's hindrance of his disability claim, constituted inten- tional infliction of emotional distress. In their answer to the complaint, appellees denied the pertinent allegations and also set forth several affirmative defenses, including that of immunity pursuant to Ohio Revised Code Chapter 2744. On October 10, 1996 appellees filed the depositions taken of witnesses during the pendancy of appellant's federal case. Con- temporaneously, appellees filed a motion for summary judgment with respect to appellant's claims against them. Appellees advanced several arguments in support of their motion. First, appellees argued appellant could not establish the elements of an intentional tort claim since working outside in the cold is not a per se dangerous condition, the evidence demon- strated appellees city and Ellert had no notice that appellant's injury was substantially certain to occur, and the evidence 8Although appellant alleged he also worked outside on February 19, 1993, the evidence submitted to the trial court revealed appellant's claim related only to the incident of February 18, 1993. -13- also demonstrated appellant's injury was not proximately caused by his outdoor work. Appellees also argued appellant could not establish the ele- ments of a claim for intentional infliction of emotional distress since the evidence failed to demonstrate appellant had suffered a severe and debilitating emotional injury due to appellees' alleged acts. Finally, appellees argued summary judgment was appropriate based upon the immunity afforded by R.C. 2744.02(A)(1). Appellees attached to their motion numerous evidentiary materials, including affidavits. In pertinent part, Ornas, Ellert, Messina and Spilker all denied making the statements attributed to them by appellant, denied they had notice working in the cold would harm appellant, and denied they had acted with any malicious purpose toward appellant. Rather, appellees asserted their actions toward and work assignments for appellant had been done in good faith and within the scope of their official responsibilities. Appellant filed a brief in opposition to appellees' motion, which also was supported by affidavits and other evidentiary materials. In his affidavit, appellant stated in pertinent part only that he would work for the city if it would accommodate his physical disabilities. On April 17, 1997 the trial court granted appellees' motion for summary judgment on appellant's claims without opinion. -14- Appellant has filed a timely appeal from the trial court's order. He presents a single assignment of error for review as follows: THE TRIAL COURT ERRED IN GRANTING THE DEFEN- DANTS' MOTION FOR SUMMARY JUDGMENT. Appellant argues he presented sufficient evidence to create genuine issues of material fact with respect to each of the elements necessary to establish his causes of action for inten- tional tort and intentional infliction of emotional distress. Considering the affidavits of Ornas, Ellert, Messina and Spilker, in conjunction with the medical information contained in the record, this court disagrees. See, e.g., Fyffe v. Jeno's, Inc. (1991), 59 Ohio St.3d 115; Sanek v. Duracote Corp. (1989), 43 Ohio St.3d 169; Paugh v. Hanks (1983), 6 Ohio St.3d 72; Yeager v. Local Union 20, Int'l Board of Teamsters (1983), 6 Ohio St.3d 369; Rains v. Rubbermaid, Inc. (1996), 112 Ohio App.3d 384; Kurt v. Harcourt Brace Jovanovich, Inc. (1990), 69 Ohio App.3d 267. Nevertheless, it is unnecessary to address appellant's argument since appellees were entitled to immunity pursuant to R.C. 2744.02(A)(1) and R.C. 2744.09(B). In reviewing a motion for summary judgment, the inferences to be drawn from the underlying facts must be viewed in a light most favorable to the party opposing the motion. Temple United, Inc. v. Wean (1977), 50 Ohio St.2d 317. However, a properly-supported motion for summary judgment forces the nonmoving party to produce evidence on any issue for which that party bears the burden of -15- production at trial. Dresher v. Burt (1996), 75 Ohio St.3d 280; Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108. Civ.R. 56(C) thus makes summary judgment proper when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Norris v. Ohio Std. Oil Co. (1982), 70 Ohio St.2d 1. In this case, appellant provided no evidence that an exception to the immunity granted appellees by R.C. 2744.02(A) existed. Brannon v. Troutman (1992), 75 Ohio App.3d 233; Hackathorn v.Springfield Local School Dist. (1994), 94 Ohio App.3d 319. R.C. 2744, et seq. have abrogated former case law and con- ditionally reinstated common law principles of sovereign immunity. Wilson v. Stark Cty. Dept. of Human Services (1994), 70 Ohio St.3d 450 at 452-453. The statutes therefore provide immunity to political subdivi- sions in the performance of governmental functions; such immunity is subject to only delineated exceptions. Id.; see, also, Amborski v. Toledo (1990), 67 Ohio App.3d 47. R.C. 2744.01(C)(1) and (2) indicate that the functions of the city which promote public health and welfare, such as the mainte- nance of roads and public grounds, the collection and disposal of solid wastes, and the provision of a public sewer system, are all governmental functions. Since R.C. 2744.02(A)(1) creates a broad immunity for these functions, appellant could prevail on his claims only if he demonstrated an exception applied to the facts of this -16- case. Wilson, supra at 452; cf., Hill v. Urbana (1997), 79 Ohio St.3d 130. In his brief in opposition to appellees' motion for summary judgment, appellant argued two exceptions were applicable: R.C. 2744.09(B) and R.C. 2744.03(A)(6). R.C. 2744.09 states in pertinent part as follows: S2744.09 Actions and claims exempted from provisions. This chapter does not apply to, and shall not be construed to apply to, the following: * * * (B) Civil actions by an employee, or the collective bargaining representative of an employee, against his political subdi- vision relative to any matter that arises out of the employment relationship be- tween the employee and the political subdivision. (Emphasis added.) As he did in the trial court, appellant argues his claims for intentional tort and intentional infliction of emotional distress arise out of his employment relationship with the city; thus, he contends immunity does not apply. However, the court in Ellithorp v. Barberton City School District Board of Education (July 9, 1997), Summit App. No. 18029, unreported, recently stated as follows: Because Section 2744.02(B) includes no spe- cific exceptions for intentional torts, courts have consistently held that political subdivi- sions are immune from intentional tort claims. See, e.g., Wilson, supra (claims for fraud and intentional infliction of emotional distress); Farra v. Dayton (1989), 62 Ohio App.3d 487, 576 N.E.2d 807 (claim for intentional inter- ference with business interests); Monesky v. Wadsworth(Apr. 3, 1996), 1996 Ohio App. LEXIS -17- 1402, Medina App. No. 2478-M, unreported (claims for trespass and demolition of a building). *** Ms. Ellithorp also argued in the trial court, and has argued on appeal, that Section 2744.09(B) of the Ohio Revised Code provides an exception to sovereign immunity applicable to this case. That Section provides that Chapter 2744 immunity does not apply to civil actions brought by an employee against a political subdivision relative to any matter that arises out of the employment relationship between the employee and the political subdi- vision[.] The school board has asserted, and this Court agrees, that Section 2744.09(B) is inapplicable to the facts of this case. An employer's intentional tort against an em- ployee does not arise out of the employment relationship, but occurs outside of the scope of employment. Brady v. Safety-Kleen Corp. (1991), 61 Ohio St.3d 624, 576 N.E.2d 722, paragraph one of the syllabus. (Emphasis added.) See, also, Nungester v. Cincinnati (1995), 100 Ohio App.3d 561 at 567; Brannon v. Troutman, supra; Marsh v. Oney (Mar. 1, 1993), Butler App. No. CA92-09-165, unreported. This court finds such reasoning persuasive. To paraphrase Wilson, to allow such claims as appellant's would frustrate the purpose of both Chapter 2744 and laws providing for collective bargaining and workers' compensation; consequently, R.C. 2744.09(B) does not create an exception to immunity for the political subdivision on the facts of this case. Furthermore, as to the individual appellees, R.C. 2744.03(A)(6) states: S2744.03 Defenses or immunities of subdivision and employee. (A) In a civil action brought against a polit- ical subdivision or an employee of a political subdivision to recover damages for injury, -18- death, or loss to persons or property alleg- edly caused by any act or omission in connec- tion with a governmental or proprietary func- tion, the following defenses or immunities may be asserted to establish nonliability: * * * (6) In addition to any immunity or de- fense referred to in division (A)(7) of this section and in circumstances not covered by that division or section 3746.24 of the Revised Code, the employee is immune from liability unless one of the following applies: (a) The employee's acts or omissions were manifestly outside the scope of the employee's employment or offi- cial responsibilities; (b) The employee's acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner; *** In this case, all of the individual appellees' affidavits demonstrated that in their supervision of appellant, appellees were acting within the scope of their official responsibilities. Stinehelfer v. Solon City Schools (Feb. 25, 1993), Cuyahoga App. No. 64097, unreported. Moreover, each appellee stated he or she had no intent to harm appellant and at no time acted with any malice toward appellant. Appellant's affidavit not only failed to contradict these state- ments, the voluminous record supports them. Opial v. Rossford (1996), 116 Ohio App.3d 588; cf., Manley v. Trustees of Perkins Township (Nov. 15, 1996), Erie App. No. E-96-018, unreported. The evidence presented in this case thus demonstrated no exception to the immunity provided by R.C. 2744.01(A)(1) to -19- appellees existed; since no genuine issue of material fact remained, the trial court properly granted summary judgment for them on appellant's claims. Dresher v. Burt, supra; Wilson v. Stark Cty. Dept. of Human Services, supra; Ellithorp v. Barberton City School District Board of Education, supra; Stinehelfer v. Solon City Schools, supra. Accordingly, appellant's sole assignment of error is over- ruled. The order of the trial court is affirmed. -20- It is ordered that appellees recover of appellant their 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. DIANE KARPINSKI, P.J. and LEO M. SPELLACY, J. CONCUR JUDGE KENNETH A. ROCCO N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .