Background
Ameer Alkayali, Weilin Fang, and Kevin Kennelly sued Case Western Reserve University and several university personnel over a May 2024 campus protest. They alleged that painters working under CWRU’s direction painted over them while covering pro-Palestine messages on a mural and the university’s “Spirit Wall,” and they asserted civil assault and battery claims based on respondeat superior.
CWRU and the individual appellants moved to dismiss under Ohio Civil Rule 12(B)(6), arguing that they were protected by political-subdivision immunity under R.C. Chapter 2744. The trial court denied the motion as premature because a potential set of facts could entitle the plaintiffs to relief. The defendants appealed, invoking R.C. 2744.02(C), which makes an order denying a political subdivision or its employee the benefit of alleged immunity a final order.
The Court’s Holding
The court dismissed the appeal for lack of a final, appealable order, with Judge Clary writing the lead opinion and Judge Boyle concurring in the judgment only. Judge Clary concluded that CWRU is not a political subdivision under R.C. 2744.01(F). Although CWRU maintains a statutorily authorized police department, the lead opinion reasoned that this fact does not transform the private university into a political subdivision. On that reasoning, the trial court’s order did not deny a political subdivision the benefit of immunity and therefore was not immediately appealable under R.C. 2744.02(C).
Judge Boyle agreed that the appeal should be dismissed but rejected the lead opinion’s decision to determine CWRU’s political-subdivision status for the first time on appeal. She reasoned that the trial court had not decided whether CWRU qualified as a political subdivision or whether the immunity statute applied, leaving no such determination for the appellate court to review. Because Judge Boyle concurred only in the judgment, the lead opinion’s substantive political-subdivision analysis did not command a majority rationale.
Judge Keough dissented. She would have held that CWRU’s campus police department is a political subdivision for immunity purposes because it exercises police authority granted by state law and extended under Cleveland police policy. She nevertheless concluded that factual questions remained concerning statutory exceptions or defenses to immunity, and she therefore would have exercised jurisdiction and affirmed the denial of the motion to dismiss.
Key Takeaways
- The appeal was dismissed by a two-judge majority because the trial court’s order was not considered final and appealable, but the two judges in that majority relied on different reasoning.
- The lead opinion concluded that CWRU is not transformed into a political subdivision merely because it operates a statutorily authorized campus police department.
- The concurrence declined to decide CWRU’s political-subdivision status because the trial court had not decided that issue, while the dissent would have recognized the campus police department as a political subdivision and affirmed on the merits.
Why It Matters
The decision leaves the plaintiffs’ assault-and-battery action pending in the trial court and prevents appellate review of the immunity ruling at this stage. It also illustrates that an asserted denial of political-subdivision immunity does not automatically create appellate jurisdiction; the order must qualify as a final order under R.C. 2744.02(C).
Because the judge concurring in dismissal did not join the lead opinion’s analysis of CWRU’s status, attorneys should distinguish the court’s judgment from the lead opinion’s reasoning. The case does not establish a majority rationale broadly resolving whether private universities or their campus police departments qualify as political subdivisions under Ohio’s immunity statute.