Yatsko et al v. Graziolli et al

Filing 100

Order & Opinion For the reasons stated in the Order, For the above reasons, Graziolli's Motion for Summary Judgement, Doc #: 81 , is granted in part and denied in part; The City of Cleveland's Motion for Summary Judgement, Doc #: [ 66], is granted; Corner Alley's Motion for Summary Judgement, Doc #: 73 is granted in part and denied in part; and the Corporate Defendants' Motion for Summary Judgement, Doc #: 79 , is granted in part and denied in part. Signed by Judge Dan Aaron Polster on 5/1/2020. (K,K)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
MELISSA YATSKO, et al.,
Plaintiffs,
v.
SERGEANT DEAN GRAZIOLLI, et al.,
Defendants.

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CASE NO. 1:18-CV-814

JUDGE DAN AARON POLSTER

ORDER & OPINION

Before the Court are four Motions for Summary Judgement. Docs ##:81, 66, 73, 89. As
an initial matter, Plaintiffs, in their brief in opposition to summary judgement, move to dismiss
Defendants MRN Group, LLC; MRN Investment Group, LLC; MRN Enterprises, LLC; MRN
Development Corporation; Corner Alley, LLC; and Corner Alley Fourth Limited Partnership.
Doc #: 85 at 69. Accordingly, those Defendants are DISMISSED.
As a result of the above dismissal, the pending Motions for Summary Judgement are filed
by Defendant Sergeant Dean Graziolli (“Graziolli”), Doc #: 81, Defendant City of Cleveland,
Doc #: 66, Defendant Corner Alley Uptown, LLC (“Corner Alley”), Doc #: 73, and Defendants
629 Euclid Lld. and MRN Limited Partnership (collectively the “Corporate Defendants”), Doc #:
79.
For the following reasons Graziolli’s Motion for Summary Judgement, Doc #: 81, is
GRANTED IN PART and DENIED IN PART; The City of Cleveland’s Motion for Summary
Judgement, Doc #: 66, is GRANTED; Corner Alley’s Motion for Summary Judgement, Doc #:

73 is GRANTED IN PART and DENIED IN PART; and the Corporate Defendants’ Motion for
Summary Judgement, Doc #: 79, is GRANTED IN PART and DENIED IN PART.
I.

Background

Graziolli shot and killed Thomas Yatsko while working as a security guard at the Corner
Alley Uptown in University Circle (“Corner Alley Uptown”). This is one of the few material
facts not in dispute. The remaining material facts revolve around two events: (A) Graziolli
becoming employed at Corner Alley Uptown and (B) the fights that lead to Yatsko’s death. In
the following recitation, the facts are presented in a light most favorable to Plaintiffs, the
nonmoving party.
A. Graziolli Becomes a Security Guard
Jonathan Seeholzer is, and at all relevant times was, the director of restaurant operations
over MRN branded restaurants. Doc #: 85-1 at 14. Corner Alley Uptown is one such MRN
branded restaurant. Doc #: 85-1 at 9, 13, 165-67. Seeholzer initially had security guards at
Corner Alley Uptown one or two days per week to deter underage patrons from using fake
identification cards. Doc #: 85-1 at 18. But after an incident where a fight occurred at Corner
Alley Uptown, Seeholzer decided to have security guards present more often. Doc #: 85-1 at 18.
To increase the hours security guards were present, Seeholzer had to get approval from Jori
Maron. Doc #: 85-1 at 6, 18.
The record does not clearly show which of the Defendants employ Seeholzer and Maron.
Seeholzer initially said he is employed by “MRN” and confirmed that he is the director of
restaurant operations for MRN Ltd.1 Doc #: 85-1 at 6, 42. And Seeholzer has a “MRNltd.com”
email address. Doc #: 85-1 at 7. But Seeholzer also said that MRN Ltd. is not his employer, that

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Plaintiffs and deponents referred to Defendant MRN Limited Partnership as MRN Ltd.

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he believes his paychecks are from 629 Euclid Ltd. Doc #: 85-1 at 9. Seeholzer further explained
that he does not know what 629 Euclid Ltd. is. Doc #: 85-1 at 9. Nor can an employment contract
resolve this ambiguity because Seeholzer believes no contract exists. Doc #: 85-1 at 10.
As for Jori Maron, Seeholzer views him as a supervisor. Doc #: 85-1 at 6. Seeholzer’s
deposition also makes clear that the Maron family has ownership interest over Euclid 629 Ltd.
and/or MRN Limited Partnership. Doc #: 85-1 at 10. Plaintiffs cite to CrainsCelveland.com to
show that Maron is an MRN Ltd. partner. Doc #: 85 at 41 citing
https://www.crainscleveland.com/article/20170526/who1002017/305269988/57-jori-maron.
To obtain security guards, Seeholzer would contact Cleveland Police Department
Lieutenant Gerald Zarlenga. Doc #: 85-1 at 22. Seeholzer told Zarlenga that the security guards
were to “assist the management when need be, just keeping an eye on possible situations prior to
anything happening.” Doc #: 85-1 at 25. Zarlenga would schedule off-duty officers, including
Graziolli, to work as security guards at Corner Alley Uptown. Doc #: 85-3 at 35-36. The
Cleveland Police Department referred to these off-duty opportunities as “secondary
employment.” Doc #: 85-3 at 11. Before taking secondary employment, officers were required to
obtain approval from the Cleveland Police Department. Doc #: 85-3 at 11. The approval process
consisted of filling out a form and submitting a worker’s compensation coverage letter. Doc #:
85-3 at 11. Because of this requirement, Seeholzer provided a worker’s compensation certificate
and understood that it would cover Zarlenga and the officers Zarlenga scheduled to work at
Corner Alley Uptown. Doc #: 85-1 at 23.
Seeholzer would give Zarlenga cash for the hours the off-duty officers worked. Doc #:
85-1 at 27. Seeholzer obtained the cash from an accountant but does not know where the
accountant got the cash. Doc #: 85-1 at 27-28. No invoices reflecting these payments were made.

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Doc #: 85-1 at 27. Seeholzer is not aware that 1099s were ever delivered to Zarlenga or the
officers working at Corner Alley Uptown. Doc #: 85-1 at 28. Zarlenga would use the cash to pay
the officers. Doc #: 85-3 at 36. The record is silent on what, if anything, Zarlenga was paid.
Graziolli, before starting secondary employment at Corner Alley Uptown, was trained on
the rules and regulations he was required to comply with while working secondary employment.
Doc #: 85-3 at 13. He was authorized to wear his police uniform and understood that he was
required to carry his city-issued firearm,2 a taser, pepper spray, an ASP baton, and handcuffs.
Doc #: 85-3 at 13. Graziolli also understood that he was required to address criminal activity he
observed while working secondary employment. Doc #: 85-3 at 13.
B. Events of January 13, 2018
On January 13, 2018, Graziolli arrived at the Corner Alley Uptown at around 9:20 PM.
Doc #: 85-3 at 43. He wore his Cleveland Police uniform, on which was affixed his metal police
sergeant badge and police shoulder patch. Doc #: 85-3 at 12, 14. He carried his city-issued pistol,
but not a taser, pepper spray, ASP Baton, or handcuffs. Doc #: 85-3 at 12. He declined to carry
these items because he had not previously encountered any problems while working at Corner
Alley Uptown. Doc #: 85-3 at 12.
On this night Graziolli encountered three problems – all involving Yatsko.
1. Yatsko Fights McDuffie inside Corner Alley Uptown
Graziolli first encountered Yatsko when he was summoned by a Corner Alley Uptown
Employee. Doc #: 85-3 at 44. Graziolli was informed that two men were fighting inside Corner
Alley Uptown. Doc #: 85-3 at 44. By the time Graziolli reached the area, Yatsko and his friend

The City of Cleveland’s secondary employment form requires that officers carry pepper spray, ASP Baton, and a
taser. Doc #: 66-8 at 29. It does not require that officers carry their city-issued firearm during secondary
employment. Doc #: 66-8 at 29.
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Delon McDuffie were finished fighting. Doc #: 85-3 at 44. Graziolli then escorted Yatsko to get
his coat, walked Yatsko out the door, and told Yatsko, “you cannot come back inside.” Doc #:
85-3 at 44-47.
2. Yatsko Fights McDuffie in the Street
Graziolli’s second encounter with Yatsko occurred shortly thereafter. Doc #: 85-3 at 47.
Graziolli was informed that Yatsko and McDuffie were fighting in the street. Doc #: 85-3 at 47.
When Graziolli went into the street, he saw Yatsko punching and kicking McDuffie, who was on
the ground. Doc #: 85-3 at 47.3 McDuffie recalls that Graziolli broke up the fight, was rude to
him, and threatened to arrest him. Doc #: 85-18 at 24. McDuffie further recalls that Yatsko did
not make any gestures to Graziolli. Doc #: 85-18 at 19. Graziolli recalls the events differently.
Graziolli says that after he broke up the fight, Yatsko turned to him with closed fists and was
getting ready to punch him. Doc #: 85-3 at 48. Graziolli says that he then identified himself as a
police officer by saying “look at who you’re going to punch.” Doc #: 85-3 at 48.
3. Yatsko Fights Graziolli around Corner Alley Uptown’s Patio
Graziolli’s third encounter with Yatsko occurred as he was walking back to the Corner
Alley Uptown after breaking up the street fight. He encountered Yatsko in front of the Corner
Alley Uptown’s patio. What happened next is disputed. Relevant here are the video evidence and
the recollections of Graziolli and Breanne Steele.
Corner Alley Uptown’s surveillance camera shows Yatsko around Corner Alley
Uptown’s patio for two minutes before Graziolli appears. Doc #: 85-21 at 22:41:30-22:43:30.
During those two minutes, Yatsko appears to be peacefully interacting with Steele. Doc #: 85-21
at 22:41:30-22:43:30. As Graziolli approached, Yatsko stepped back. Doc #: 85-21 at 22:44:16-

Plaintiffs claim that “this is not how McDuffie describes the incident.” Doc #: 85 at 18. But McDuffie does not
describe the incident at all. See Doc #: 85-18 at 19.
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22:44:30. Graziolli responded by advancing towards Yatsko. Doc #: 85-21 at 22:44:16-22:44:50.
After both men shuffled around, Graziolli began to retreat backwards into the patio. Doc #: 8521 at 22:45:39. The video does not show who threw the first punch, how many punches were
thrown, or when Graziolli unholstered his pistol. But the video does show that Yatsko lunged at
Graziolli while Graziolli was pointing his pistol at Yatsko. Doc #: 85-21 at 22:45:58-22:46:00.
Yatsko then immediately fell to the ground. Doc #: 85-21 at 22:60:00.
Graziolli recalls that after he broke up the fight in the street, he went back to Corner
Alley Uptown to get medical aid for McDuffie. Doc #: 85-3 at 49. While doing so, he
encountered Yatsko meandering outside Corner Alley Uptown’s patio. Doc #: 85-3 at 49. He is
unsure whether he said anything to Yatsko. Doc #: 85-3 at 50, 53-54. But he recalls that Yatsko
punched him multiple times in the face and head. Doc #: 85-3 at 54. Graziolli did not punch
back. Doc #: 85-3 at 54. Yatsko said that Graziolli would have to kill him and that he was going
to kill Graziolli. Doc #: 85-3 at 55-56. Graziolli then unholstered his pistol “to back him off . . .
.” Doc #: 85-3 at 54. But Yatsko continued to attack Graziolli. Doc #: 85-3 at 56. Graziolli did
not have the opportunity to call out for help or retreat into Corner Alley Uptown. Doc #: 85-3 at
56. Graziolli then shot Yatsko because he felt it was his only option to survive. Doc #: 85-3 at
56.
Breann Steele’s recollection of the events is materially different. She recalls that before
Graziolli approached, Yatsko was interacting with her peacefully and trying to find a way to get
home. Doc #: 85-19 at 13-14. Graziolli approached Yatsko aggressively and said, “it was time
for him to go” and “to get the fuck on.” Doc #: 85-19 at 13. Yatsko asked Graziolli to call a
police car to give him a ride home. Doc #: 85-19 at 53. Graziolli refused. Doc #: 85-19 at 53.
Graziolli then said that he did not like Yatsko’s body language. Doc #: 85-19 at 15. Steele does

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not recall who threw the first punch.4 Doc #: 85-19 at 14. But she does recall Graziolli punching
at Yatsko. Doc #: 85-19 at 16. After Graziolli unholstered his pistol, Yatsko said “I guess you’re
going to have to kill me . . . .” Doc #: 85-19 at 21. Graziolli subsequently shot Yatsko when
Yatsko punched Graziolli in the nose. Doc #: 85-19 at 16.
Yatsko died of his injuries. Graziolli suffered lacerations to his lip and was suspected to
have a concussion. Doc #: 82-27 at 16. Yatsko weighed about 149 pounds. Doc #: 85-23 at 2.
Graziolli thinks he weighed around 245 pounds at the time. Doc #: 85-3 at 55. This was the first
time Graziolli discharged his pistol in his 27-year career. Doc #: 85-3 at 18-19.
II.

Standard of Review

Summary judgment will be granted if “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law.” Fed. R. Civ. P. 56(a). On the other hand, if a reasonable jury could return a
verdict for the nonmoving party, summary judgment for the moving party is inappropriate.
Baynes v. Cleland, 799 F.3d 600, 606 (6th Cir. 2015) (citing Anderson v. Liberty Lobby, 477
U.S. 242, 248 (1986)). The movant bears the initial burden of showing that there is no material
issue in dispute. Id. at 607 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A fact is
deemed material only if it might affect the outcome of the case under the governing substantive
law. Id. (citing Wiley v. United States, 20 F.3d 222, 224 (6th Cir. 1994). In reviewing a motion
for summary judgment, the court must view the facts and any inferences reasonably drawn from
them in the light most favorable to the nonmoving party. Id. (citing Kalamazoo Acquisitions,
LLC v. Westfield Ins. Co., 395 F.3d 338, 342 (6th Cir. 2005)).

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While Steele does not recall who threw the first punch, a bartender stated during her deposition that Graziolli threw
the first punch. Doc #: 85-22 at 9.

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III.

Analysis

Defendants request summary judgement on the claims against them. These claims consist
of (A) 42 U.S.C. § 1983 claims and (B) State tort claims.
A. 42 U.S.C. § 1983 Claims (Claim One, Two, & Three)
Graziolli and the City of Cleveland move for summary judgment on the 42 U.S.C. § 1983
claims against them. Docs ##: 81 at 13-20; 66. These consist of an excessive force claim against
Graziolli (Claim One) a deliberate indifference to a serous medical need claim against Graziolli
(Claim Two) and a Monell claim against the City of Cleveland (Claim Three). Doc #: 48 at 9-14.
For an officer to be liable under § 1983, a plaintiff must establish that the officer deprived
a person of their Fourth or Fourteenth Amendment rights while acting under the color of law.
Flint v. Ky. Dep’t of Corr., 270 F.3d 340, 351 (6th Cir. 2001). A Monell claim renders a city
liable under § 1983 if the officer’s unconstitutional actions taken under the color of law are the
result of the city’s practice, policy, or custom. Monell v. Department of Social Services, 436 U.S.
658 (1978).
As an initial matter, Plaintiffs concede that summary judgement should be granted on
Claim Two. Doc #: 85 at 27.
1. Color of Law
An act is under the color of law when the actor exercised power “possessed by virtue of
state law and made possible only because the wrongdoer is clothed with the authority of state
law.” Memphis, Tenn. Area Local, Am. Postal Workers Union v. City of Memphis, 361 F.3d 898,
903 (6th Cir. 2004) (quoting West v. Atkins, 487 U.S. 42, 48 (1988)). The key question is
whether the officer “intend[ed] to act in an official capacity or to exercise official responsibilities
pursuant to state law.” Kalvitz v. City of Cleveland, 763 Fed. Appx. 490, 496 (6th Cir. 2019)

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(quoting Waters v. City of Morristown, 242 F.3d 353, 359 (6th Cir. 2001)). Relevant factors in
determining the officer’s intent include “whether the officer flashed a badge, identified himself
as an officer, or arrested (or threatened to arrest) someone.” Id. citing Swiecicki v. Delgado, 463
F.3d 489, 496 (6th Cir. 2006). Whether the officer was on or off duty or in or out of uniform is
not determinative. Swiecicki, 463 F.3d at 496.
The question this Court must answer is whether a reasonable jury could only reach one
conclusion on whether Graziolli intended to act in his official capacity or to exercise official
responsibilities during his third encounter with Yatsko. Graziolli contends that he was acting
under color of law. Doc #: 85 at 14. Unsurprisingly, the City of Cleveland argues that Graziolli
was not acting under the color of law. Doc #: 66 at 16-17. Plaintiffs claim that this disagreement
demonstrates that a genuine dispute exists. Doc #:85 at 25.
Graziolli’s actions throughout the night of January 13, 2018 are relevant to determining
whether Graziolli was acting under the color of law during his third encounter with Yatsko. The
evidence is mixed as to whether Graziolli was acting under color of law during his first
encounter with Yatsko. Graziolli escorted Yatsko out of Corner Alley Uptown and told him not
to come back in. Removing a patron from a bar seems most like the job function of a security
guard, not a police officer. But Graziolli contends that he was exercising his authority as a police
officer in removing Yatsko. Doc #: 85-3 at 46.
The evidence is much clearer that Graziolli was acting under color of law during his
second encounter with Yatsko. Graziolli had to leave his place of private employment to go into
the street to stop the street fight. A private security guard is likely not expected to intervene in a
fight occurring outside of his or her employer’s establishment. According to McDuffie, Graziolli
threated to arrest him. According to Graziolli, he identified himself as a police officer by saying

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“look at who you are going to hit.” That Graziolli intervened in a street fight outside of Corner
Alley Uptown and either threatened to arrest McDuffie or identified himself as a police officer
demonstrates that he intended to act in his official capacity as a police officer. Thus, Graziolli
was acting under color of law during his second encounter with Yatsko.
The evidence is again mixed as to whether Graziolli was acting under the color of law
during his third encounter with Yatsko. Graziolli was returning to Corner Alley Uptown after
breaking up the street fight. He claims that he was going to call for medical assistance for
McDuffie, but Plaintiffs dispute this. And during the fight with Yatsko, Graziolli did not identify
himself as a police officer or attempt to arrest Yatsko. Graziolli claims that he was not “using his
position as a Cleveland police officer to compel or coerce Thomas Yatsko into leaving the area.”
Doc #: 66 at 16-17.
When these three encounters are considered together, it remains unclear whether
Graziolli was acting under color of law during his fateful third encounter with Yatsko. A
reasonable jury could conclude that Graziolli was intending to act in an official capacity
throughout the night; that Graziolli was preserving the peace by escorting Yatsko out of Corner
Alley Uptown, breaking up the street fight, and, upon reencountering Yatsko at Corner Alley
Uptown’s patio, telling him to leave.
But a reasonable jury could also conclude that Graziolli only intended to act in an
official capacity to stop the street fight. They could conclude that Graziolli was merely
performing the duties of a private security guard in escorting Yatsko out of Corner Alley
Uptown. And that while Graziolli was acting within his official capacity when he broke up the
street fight, he returned to acting as a private security guard when he encountered Yatsko at

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Corner Alley Uptown’s patio and told him to leave, thereby preventing Yatsko from reentering
Corner Alley Uptown.
Thus, whether Graziolli was acting under the color of law during his third encounter with
Yatsko is a jury question.
2. Qualified Immunity
Graziolli and the City of Cleveland assert that even if Graziolli was acting under color of
law, summary judgment should be granted because Graziolli is entitled to qualified immunity.
Docs ##: 98 at 11; 66 at 18. In evaluating whether an officer is entitled to qualified immunity,
courts consider whether a constitutional violation occurred and “whether the right at issue was
clearly established at the time of defendant’s alleged misconduct.5” Barker v. Goodrich, 649
F.3d 428, 433 (6th Cir. 2011) (quotations omitted).
a. Waiver
Plaintiffs assert that Graziolli waived arguing qualified immunity on summary judgement
because he failed to argue it in his Motion. Doc #: 85 at 26-27. Graziolli claims that he did, in
fact, raise qualified immunity in his Motion through the following two statements: “[t]o the
extent it could be found that Graziolli violated Yatsko’s Constitutional rights, Graziolli is entitled
to qualified immunity” and “to the extent Graziolli’s actions could be [challenged under the
Fourth Amendment], there is no doubt they would be found objectively reasonable.” Doc #: 98 at
9.
Arguments not raised or adverted to in only a perfunctory manner in an initial motion are
waived. Kuhn v. Washtenaw County, 709 F.3d 612, 624 (6th Cir. 2013).

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No party asserts that the right at issue was not clearly established. Because the Court concludes that whether a
constitutional violation occurred is a jury question, the Court does not reach whether the constitutional violation was
clearly established.

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While Graziolli’s statements are far from textbook examples of motion practice, the
Court concludes that Graziolli did not waive his qualified immunity argument on summary
judgement. At a minimum, Graziolli made clear in his motion that he was entitled to qualified
immunity because his actions were objectively reasonable. This is adequate.
The Court’s conclusion is further supported by the fact that Graziolli’s lackluster attempt
to argue qualified immunity in his motion was of little consequence. Plaintiffs had ample
opportunity to, and in fact did, argue against qualified immunity in responding to the City of
Cleveland’s Motion. Doc #: 85 at 61-66. Furthermore, the Court ultimately denies summary
judgment on qualified immunity because issues of material fact remain.
b. Constitutional Violation
An excessive force claim should be analyzed under the Fourth Amendment’s protection
against unreasonable seizures when a seizure occurred. Darrah v. City of Oak Park, 255 F.3d
301, 305-06 (6th Cir 2001) (citing County of Sacramento v. Lewis, 523 U.S. 833, 843-44 (1988).
Where there has been no search or seizure, the excessive force claim should be analyzed under
the Fourteenth Amendment’s due process clause. Id.
A seizure is an “intentional interference with a person’s liberty by physical force or a
show of authority that would cause a reasonable person consciously to submit” Floyd v. City of
Detroit, 518 F.3d 398, 406 (6th Cir. 2008) (citing Peete v. Metro. Gov’t of Nashville & Davidson
County, 486 F.3d 217, 220 (6th Cir. 2007)). An apprehension by deadly force is a seizure. Tenn.
v. Garner, 471 U.S. 1, 7 (1985).
The parties’ disagreement on seizure centers around the intent requirement. Graziolli
concludes that a seizure occurs only when the officer acts with the intention to restrain or detain
the individual. Doc #: 81 at 16. Because, he asserts, he was not trying to arrest, restrain or search

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Yatsko, but only shot Yatsko “to survive the situation,” Yatsko was not seized. Doc #: 16-17.
Conversely, Plaintiffs conclude that a seizure occurs whenever the officer intends to use deadly
force and that deadly force prevents an individual from walking away. Doc #: 85 at 26 Thus,
they assert, a seizure occurred when Graziolli intentionally shot Yatsko. Doc #: 85 at 26.
The Court agrees with Graziolli that for a seizure to occur, the officer must act with the
intention to arrest, restrain, or detain. The Supreme Court explained as much in saying that “the
detention or taking itself must be willful.” Brower v. County of Inyo, 489 U.S. 593 (1989). But
Courts have typically presumed that an officer using deadly force intends to restrain the
individual. See Floyd v. City of Detroit, 518 F.3d 398, 406 (6th Cir. 2008); Hanson v. City of
Fairview Park, 349 F. App’x 70 (6th Cir. 2009).
Here, too, Graziolli’s use of deadly force demonstrates that he intended to restrain
Yatsko. Graziolli says he was acting “just to survive the situation.” To survive the situation, he
needed to restrain Yatsko by neutralizing Yatsko’s attack. Graziolli accomplished this
neutralization through deadly force. No conclusion can be reached but that Graziolli intended to
restrain Yatsko. Accordingly, Graziolli seized Yatsko.
Because Graziolli seized Yatsko, Plaintiffs’ § 1983 claims must be analyzed under the
Fourth Amendment. Darrah, 255 F.3d at 305-06. Under the Fourth Amendment, an
unconstitutional seizure occurs when the officer’s actions were not objectively reasonable.
Graham v. Connor, 490 U.S. 386, 397 (1989). The scope of this analysis is limited to the
moments before the shooting. Hermiz v. City of Southfield, 484 Fed. Appx. 13, 16 (6th Cir.
2012). The court does not consider whether it was reasonable for the police to create the
circumstances. Id.; Livermore v. Lubelan, 476 F.3d 397, 406 (6th Cir. 2007).

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When a seizure occurs through deadly force, an officer will be found to have violated the
individual’s Fourth Amendment rights if the officer did not have probable cause to believe that
the suspect posed a threat of serious physical harm to the officer or to others. Floyd, 518 F.3d at
407. “This is an objective test, to be judged from the perspective of a reasonable officer on the
scene, rather than with the 20/20 vision of hindsight.” Sova v. City of Mt. Pleasant, 142 F.3d 898,
903 (6th Cir 1998) (quotations omitted). Relevant factors in determining the reasonableness of an
officer’s use of force are: “(1) the severity of the crime at issue, (2) whether the suspect posed an
immediate threat to the safety of the police officers or others, and (3) whether the suspect
actively resisted arrest or attempted to evade arrest by flight.” Floyd, 518 F.3d at 407.
Here, the only relevant factor is whether Yatsko posed an immediate threat to the safety
of Graziolli. Graziolli was not arresting Yatsko and did not encounter Yatsko for the third time in
front of Corner Alley Uptown due to any crime being committed. Further, there is no allegation
that Yatsko posed an immediate threat to anyone other than Graziolli.
The facts do not clearly show whether Yatsko posed an immediate threat to Graziolli’s
safety. Under Graziolli’s and the City of Cleveland’s version of the facts, Graziolli was being
viciously attacked by a man who had already demonstrated his aggressiveness in two prior
fights. Yatsko had already threatened to kill Graziolli and said that Graziolli would have to kill
him. Graziolli feared that if Yatsko were to get his pistol, Yatsko would kill him. All that
Graziolli could do was take the beating until he managed to unholster his pistol and fire two lifesaving shots.
But under Plaintiffs’ version of the facts, Graziolli picked a fight with Yatsko. During the
roughly twenty-second fistfight. Both Graziolli and Yatsko threw punches and Graziolli was able
to shove Yatsko away using his 100-pound weight advantage. Yatsko was unarmed and never

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attempted to take Graziolli’s weapon. In a state of disbelief that Graziolli would unholster his
pistol during a fistfight, Yatsko said that Graziolli would have to kill him. After Yatsko’s
punches made contact multiple times, Graziolli shot Yatsko twice.
As already explained, the Court is to view the facts in a light most favorable to the
nonmoving party on a motion for summary judgement. Baynes, 799 F.3d at 606. Graziolli asserts
that the Court should not consider Plaintiffs’ version of events because it is contradicted by video
evidence. Doc #: 98 at 2-5.
The Court disagrees with Graziolli. The video evidence does not clearly show the events
leading up to the fight, who threw the first punch, or whether Graziolli was able to fend off
Yatsko’s attacks. Accordingly, the Court must view the facts in a light most favorable to
Plaintiffs. In this light, a reasonable jury could conclude that Graziolli did not have probable
cause to believe that Yatsko posed a threat of serious harm.
Thus, a reasonable jury could disagree on whether Graziolli was acting under color of
law and whether Graziolli’s actions were objectively reasonable. Accordingly, Graziolli’s
Motion for Summary Judgement, Doc #: 81, is DENIED as to Claim One and GRANTED as to
Claim Two.
3. Monell Claim
The City of Cleveland asserts that even if Graziolli is deemed to be acting under color of
law and found to have committed a constitutional violation, it is entitled to summary judgement
because Plaintiffs’ Monell claim is not supported by evidence. Doc #: 66 at 9-13.
A Monell claim can succeed if the underlying constitutional violation was caused by: “(1)
legislative enactments or official policy; (2) actions by officials with final decision-making
authority; (3) a policy of inadequate training or supervision; or (4) a custom of tolerance of rights

15

violations.” Beaz v. City of Cleveland, Case No. 1:19 cv 623, 2019 U.S. Dist. LEXIS 221609, at
*5 (N.D. Ohio Dec. 27, 2019). Plaintiffs assert that their Monell claim is based on two theories:
(a) that the City had a custom of tolerance or acquiescence towards excessive force and (b) the
City failed to supervise officers working secondary employment. Doc #:85 at 66.
a. Custom of Tolerance Claim
A custom of tolerance claim requires that the plaintiff prove that the city had notice of a
clear and persistent pattern of unlawful activity; the city tacitly approved of the unlawful activity
by doing nothing; and the city’s tacit approval caused the constitutional violation. Howse v.
Hodous, 953 F.3d 402, 411 (6th Cir. 2020).
Plaintiffs rely solely on a December 4, 2014 report by the Department of Justice (“DOJ
Report”) to prove their custom of tolerance claim. Doc #: 85 at 66-67. Plaintiffs assert, relying
on Kalvitz v. City of Cleveland, Case No.: 1:16 cv 748, 2017 WL 6805678 (N.D. Ohio Oct. 16,
2017), that the DOJ Report proves a custom of tolerance claim and is admissible. Doc #: 85 at
66-67. In Kalvitz, the court determined that the DOJ Report is admissible under Federal Rule of
Evidence 803(8). Kalvitz, 2017 WL 6805678 at *10. The court further found that the DOJ Report
showed that the City of Cleveland tolerated repeated misconduct which “embolden[s] officers to
commit more such applications of excessive force in the future.” Id. at *11.
The City of Cleveland asserts that the Court should strike the DOJ Report because it was
not raised during discovery. Doc #: 93 at 5-6. Defendants further assert that the report is stale,
and several judges have declined to consider it in Monell cases. Doc #: 93 at 6-7.
The Court declines to decide whether the DOJ Report should be stricken because it finds
that the DOJ Report fails to show that the City of Cleveland had notice of a clear and persistent
pattern of unlawful activity of (a) the type of conduct alleged here and (b) for the time period in

16

question. The DOJ Report contains generalized hearsay statements which other courts in this
district have flatly refused to consider. See Warren v. Tankersley, CASE NO. 1:14-CV-106, 2015
U.S. Dist. LEXIS 126089, at *11-13 (N.D. Ohio Sept. 21 2015); Howse v. Hodous, CASE NO.
1:17 CV 1714, 2019 U.S. Dist. LEXIS 59356, at *33 n. 3 (N.D. Ohio April 5, 2019). These
statements, even if admissible under Federal Rule of Evidence 803(8), are based on incidents
occurring more than four years before Graziolli shot Yatsko. And only two of the incidents
specifically involved off-duty officers. Doc #: 85-2 at 20, 38. Generalized hearsay statements
about the actions of on-duty officers before 2014 is not probative to whether the city had notice
of a clear and persistent pattern of unlawful activity among its off-duty officers in 2018.
Even if the DOJ Report did indicate that the City of Cleveland had notice of a clear and
persistent pattern of unlawful activities, Plaintiffs’ custom of tolerance claim fails because
Plaintiffs fail to assert any facts suggesting that the City of Cleveland approved of the unlawful
activity or that their approval caused a constitutional injury. The Sixth Circuit has held that the
DOJ Report alone does not satisfy these two elements. Howse v. Hodous, 953 F.3d 402, 411 (6th
Cir. 2020).
b. Failure to Supervise Claim
Plaintiffs’ failure to supervise claim fares no better. For a failure to supervise claim, a
plaintiff “must show that the city acted with ‘deliberate indifference’ to the risk of [the
constitutional violation] and that its deliberate indifference was the ‘moving force’ behind the
assault.” Amerson v. Waterford Twp., 562 Fed. Appx. 484, 492 (6th Cir. 2014) (quotation
omitted).
It is far from clear that police departments have a duty to supervise officers working
secondary employment. Indeed, Plaintiffs cite to no case or statute for this proposition. Plaintiffs’

17

merely rely on their expert’s opinion that supervision is required, especially because the officers
working secondary employment are required to follow the Cleveland Police Department’s rules
and regulations. Doc #: 85 at 68-69. But the fact remains that there is presently no controlling
law which mandates that police departments supervise their officers working secondary
employment. This Court declines to create law which would impose such supervision
requirements.
Even if the City of Cleveland did have a duty to supervise its officers working secondary
employment, Plaintiffs’ failure to supervise claim fails because Plaintiffs do not assert any facts
indicating that the City of Cleveland was deliberately indifferent to the risk of a constitutional
violation. Plaintiffs assert that deliberate indifference can be shown because the City of
Cleveland failed to supervise its officers working secondary employment despite knowing of the
systemic problems uncovered in the DOJ Report. Doc #: 85 at 69. But again, the DOJ Report is
not probative because it reports incidents that occurred over four years prior, only two of which
involved off-duty officers. And more specifically, there was no indication that Graziolli was
likely to use deadly force. Graziolli had not previously fired his city-issued pistol in his 27-year
career. Further, Graziolli’s disciplinary history consists of a physical altercation in 2004, failure
to complete use of force investigations, and tampering with records. Docs ##: 85-4, 84-7, 85-8,
85-10. Based on this history, the City of Cleveland could not have known, much less have been
deliberately indifferent to the risk, that Graziolli would cause a constitutional violation using
deadly force.
Accordingly, The City of Cleveland’s Motion for Summary Judgment, Doc #: 66, is
GRANTED as to Claim Three.

18

B. State Law Claims
Graziolli, the City of Cleveland, Corner Alley and the Corporate Defendants request
summary judgment on Plaintiffs’ state law claims.
1. Graziolli (Claims Four, Five, Six, & Nine)
Graziolli requests summary judgment on Plaintiffs’ claim for assault and battery (Claim
Four), negligence (Claim Five), intentional infliction of emotional distress (Claim Six), and
wrongful death (Claim Nine) because he is entitled to statutory immunity and, even were he not
entitled to statutory immunity, the claims lack legal basis. Doc #: 81 at 16.
a. Statutory Immunity
An employee of a political subdivision is immune from liability for his or her acts unless
one of the exceptions in Ohio Rev. Code Ann. § 2744.03(A)(6) applies. Here, two of the
exceptions are relevant.
Under the first relevant exception, an employee of a political subdivision is liable for his
or her acts if “the acts or omissions were manifestly outside the scope of the employee’s
employment or official responsibilities.” Ohio Rev. Code. Ann. § 2744.03(A)(6)(a). “Scope of
employment” in the statutory immunity context is based generally on agency law principles.
Chesher v. Neyer, 477 F.3d 784, 800 (6th Cir. 2007) (citing Martin v. Central Ohio Transit
Authority, 70 Ohio App. 3d 83, 92 (Ohio App. 10th Dist. 1990). The determinative factor is
whether the conduct was “initially motivated by a desire to promote the master’s business.” Id.
(quotation omitted). Even improper actions taken to further the master’s business are within the
scope of employment unless the actions are motivated by actual malice or other situations giving
rise to punitive damages. Id. (quotation omitted).

19

Graziolli primarily argues that he must have been acting within the scope of his
employment as a police officer because he was fulfilling his duty to preserve the peace when he
broke up the street fight.6 Doc #: 98 at 16.
This argument misses the point. The question here is whether Graziolli was acting within
the scope of his employment as a police officer when he encountered Yatsko the third time in
front of Corner Alley Uptown and subsequently shot Yatsko. As explained above, a reasonable
jury could conclude that Graziolli was acting as a private security guard, not a police officer,
when he encountered Yatsko in front of Corner Alley Uptown’s patio. Thus, a reasonable jury
could conclude that the first relevant exception to statutory immunity applies here.
Under the second relevant exception, an employee of a municipal subdivision is liable for
his or her acts if “the employee’s acts or omissions were with malicious purpose, in bad faith, or
in a wanton or reckless manner.” Ohio Rev. Code Ann. §§ 2744.03(A)(6)(b). A public employee
acts with malice purpose if he or she “willfully and intentionally acts with a purpose to cause
harm.” Hidden Vill., LLC v. City of Lakewood, 734 F.3d 519, 529 (6th Cir. 2013). Acting with
“bad faith” means acting with a dishonest purpose or consciousness of the wrongdoing. Cook v.
City of Cincinnati, 103 Ohio App. 3d 80, 90-91 (Ohio App. 1st Dist. 1995). Acting in a wanton
manner means failing to exercise any care whatsoever. Id. at 91.
Here, Graziolli seeks immunity from Plaintiffs’ state tort claims arising from Yatsko’s
shooting death. The relevant question is whether Graziolli’s act of shooting Yatsko was with
malicious purpose, in bad faith, or in a wanton or reckless manner. Plaintiffs do not claim that
Graziolli encountered Yatsko with the intention to shoot him. Thus, Graziolli could not have

Graziolli also asserts that the Court should not consider Plaintiffs’ version of events because it is contradicted by
the video camera footage. Doc #: 98 at 16. The Court concludes that Plaintiffs’ version of events is not contrary to
the video footage. The points of disagreement between Plaintiffs’ and Defendant’s version of events are not clearly
resolved by the video footage.
6

20

acted with malice purpose or in bad faith. Further, Graziolli’s act of shooting Yatsko was not
reckless or wanton in manner. Graziolli made the decision during the fistfight that he had to
shoot Yatsko. As explained above, the reasonableness of this decision is a question for the jury.
But no jury could conclude that the decision to shoot a person in the middle of a fistfight where
the person says that the shooter will have to kill him equates to the failure to exercise any care
whatsoever.
Because a reasonable jury could conclude that Graziolli was acting outside the scope of
his employment as a Cleveland Police Officer when he approached and shot Yatsko, Graziolli’s
Motion for Summary Judgement, Doc #: 81, is DENIED as it pertains to statutory immunity.
b. Assault and Battery (Claim Four)
Graziolli asserts that summary judgment should be granted on Plaintiffs’ assault and
battery claim. Doc #: 81 at 18. Assault and battery requires a plaintiff to prove that a defendant
“unlawfully touched him with the intent of inflicting injury or creating the fear of injury.” Johari
v. City of Columbus Police Dep’t, 186 F. Supp. 2d 821, 833 (S.D. Ohio 2002). If a plaintiff
proves this, a defendant can avoid liability by establishing self-defense. Niskanen v. Giant Eagle,
Inc., 122 Ohio St. 3d 486, 491 (2009). To establish self-defense, a defendant must show:
(1) that the defendant was not at fault in creating the situation giving rise to the
affray; (2) that the defendant had a bona fide belief that he was in imminent
danger of death or great bodily harm and that his only means of escape from such
danger was in the use of such force; and (3) that the defendant did not violate any
duty to retreat or avoid the danger."

Id. at 491-92.
Issues of material fact preclude the Court from granting summary judgement. As
explained above, issues of material fact remain on the events that led up to Yatsko being shot.
While these issues of material fact remain, the Court cannot decide whether Graziolli assaulted
21

and/or battered Yatsko or if Graziolli avoids liability under self-defense. Accordingly, Graziolli’s
Motion for Summary Judgement, Doc #: 81, is DENIED as it relates to Claim Four.
c. Negligence (Claim Five)
“To establish actionable negligence, one must show in addition to the existence of a duty,
a breach of that duty and injury resulting proximately therefrom.” Mussivand v. David, 45 Ohio
St.3d 314, 318 (1989) (citation omitted). Liability for negligent actions is negated if the plaintiff
assumed the risk. Collier v. Northland Swim Club, 35 Ohio App. 3d 35, 37 (Ohio App. 10th Dist.
1987). Under implied assumption of the risk, a defendant is not liable for their negligence if the
plaintiff consents to or acquiesces in an appreciated, known or obvious risk to the plaintiff’s
safety. Id.
Graziolli requests summary judgement on Plaintiffs’ negligence claim, asserting that
there is no evidence that Graziolli owed a duty to Yatsko and that, even if a duty were found,
Yatsko assumed the risk. Doc #: 81 at 23.
Plaintiffs argue that Graziolli owed Yatsko a duty because, as found in Pusey v. Bator, 94
Ohio St.3d 275 (2002), an armed security guard has a duty of care to trespassers. Doc #: 85 at 37.
Plaintiffs also assert that Yatsko did not assume the risk of getting shot because he was shocked
when Graziolli pulled his gun and had no reason to think that Graziolli would shoot. Doc #: 85 at
37.
Ohio law is unclear on when armed security guards owe a duty to individuals, but courts
generally have implied that a duty does exist. See Pusey, 94 Ohio St.3d at 281 (finding that the
owner of land can be vicariously liable for the acts of its armed security guards in shooting a
trespasser); Jones v. Wittenberg University, 534 F.2d 1203, 1210 (6th Cir. 1976) (finding that
issues of material fact remained on whether a fleeing individual assumed the risk of getting shot

22

by an armed security guard); But see Dragich v. Taubman Co., 1996 Ohio App. LEXIS 5857, at
7 (Ohio App. 10th Dist. 1996) (granting summary judgment on a negligence claim where a
security guard caused the plaintiff to fall because the plaintiff failed to present evidence of a
duty).
Regardless of whether Graziolli owed a duty to Yatsko, Plaintiffs’ negligence claim fails
because Yatsko assumed the risk of getting shot. No Ohio Court has discussed whether a person
assumes the risk of getting shot when he or she attacks a security guard who is pointing a gun at
the person. However, courts have not foreclosed such a conclusion. In Jones, a security guard
allegedly yelled for a fleeing individual to stop, fired a warning shot in the air and fired a second
warning shot at the individual’s feet. Jones, 534 F.2d at 1207. The second shot hit and killed the
individual. Id. The court found that whether the individual assumed the risk of getting shot was
for the jury to decide because the individual was not under arrest, the security guard’s credibility
and accuracy in reporting the events were issues for the jury to decide, and it was uncertain
whether the individual could have anticipated actually getting hit by the warning shots. Id. at
1210.
Here, Yatsko assumed the risk of getting shot. Unlike Jones, the essential facts on
assumption of risk are clearly shown in indisputable video evidence. Yatsko continued to attack
Graziolli when Graziolli had his pistol pointed at Yatsko. Doc #: 85-21 at 22:45:47- 22:45:59.
By continuing to attack Graziolli while a pistol was pointed at him, Yatsko acquiesced to the
obvious risk of getting shot. No reasonable jury could conclude that Yatsko was not aware of the
risk of getting shot when Graziolli had his pistol pointed at him. Accordingly, Yatsko assumed
the risk and Graziolli cannot be liable for negligence. Thus, Graziolli’s Motion for Summary
Judgement, Doc #: 81, is GRANTED as to Claim Five.

23

d. Intentional Infliction of Emotional Distress (Claim Six)
The elements of intentional infliction of emotional distress (“IIED”) are: (1) “that the
actor intended to cause emotional distress or should have known actions taken would result in
serious emotional distress to the plaintiff”; (2) “that the conduct was so extreme and outrageous
as to go beyond all possible bounds of decency such that it can be considered as utterly
intolerable in a civilized community”; (3) “that the actor’s actions were the proximate cause of
the plaintiff’s psychic injury”; and (4) “that the mental anguish suffered by the plaintiff is serious
and of a nature that no reasonable man could be expected to endure it.” Chisholm v. St. Mary
City School District Board of Education, 947 F.3d 342 (6th Cir. 2020).
Graziolli requests summary judgment on Plaintiffs’ IIED claim, asserting that his actions
were not extreme or outrageous. Doc #: 81 at 20. Graziolli asserts that his actions were not
extreme or outrageous because Yatsko was punching Graziolli’s head and face and Graziolli
feared that if Yatsko would overpower him, Yatsko would take control of Graziolli’s pistol and
kill him. Doc #: 81 at 20.
The Court agrees. There is no dispute that Graziolli was punched multiple times by
Yatsko and sustained injuries including a possible concussion. There is also no dispute that, at a
minimum, Yatsko said that Graziolli would have to kill him. As discussed above, a reasonable
jury could disagree on whether shooting Yatsko was reasonable. But no reasonable jury could
conclude that shooting an individual in these circumstances is so extreme or outrageous as to go
beyond all possible bounds of decency such that it can be considered as utterly intolerable in a
civilized community. See Davis v. City of Detroit, Civil Action No. 05-CV-72669, 2006 U.S.
Dist. LEXIS 78912, at *28 (E.D. Mich. Oct. 19, 2006) (finding that an officer’s act of shooting

24

what appeared to be a fleeing felon at night is not outrageous). Thus, Graziolli’s Motion for
Summary Judgement, Doc #: 81, is GRANTED as it relates to Claim Six.
e. Wrongful Death (Claim Nine)
Graziolli seeks summary judgement on Plaintiffs’ wrongful death claim, asserting that
because summary judgement should be granted on claims Four, Five, and Six, there is no
predicate acts or omissions for the wrongful death claim. Because the Court finds that Claim
Four may proceed, there remain predicate acts and omissions for Plaintiffs’ wrongful death
claim. See Woodcock v. City of Bowling Green, 679 F. App’x 419, 426 (6th Cir. 2017).
Accordingly, Graziolli’s Motion for Summary Judgement, Doc #: 81, is DENIED as to Claim
Nine.
2. The City of Cleveland (Claim Nine)
Plaintiffs concede that summary judgment should be granted for the City of Cleveland on
Claim Nine. Doc #: 85 at 69. Accordingly, the City of Cleveland’s Motion for Summary
Judgement, Doc #: 66, is GRANTED as to Claim Nine.
3. Corner Alley and The Corporate Defendants
Plaintiffs claim that Corner Alley and the Corporate Defendants are vicariously liable for
Claims Four, Five, Six, and Nine. Doc #: 48 at 14-23. Plaintiffs further claim that Corner Alley
and the Corporate Defendants are directly liable under premises liability (Claim Seven) and
negligent/reckless hiring, retention and/or supervision (Claim Eight). Doc #: 48 at 18-22. Corner
Alley and the Corporate Defendants move for summary judgment on these claims.
a. Vicarious Liability Claims (Claims Four, Five, Six, & Nine)
Corner Alley and the Corporate Defendants assert four reasons why summary judgement
should be granted on the vicarious liability claims against them. These are: (i) Graziolli was not

25

an employee; (ii) Graziolli was not the Corporate Defendants’ independent contractor (iii) No
exception to the independent contractor rule on vicarious liability applies; and (iv) Graziolli
acted as a police officer when he encountered Yatsko.
i. Employment Status
Employment status for purposes of vicarious liability turns on whether the employer
reserves the right to control the manner or means of doing the work. Bostic v. Connor, 37 Ohio
St. 3d 144, 146 (1988). In making this determination, courts consider factors including:
[W]ho controls the details and quality of the work; who controls the hours
worked; who selects the materials, tools and personnel used; who selects the
routes traveled; the length of employment; the type of business; the method of
payment; and any pertinent agreements or contracts.
Id.
Here, there is no indicia of an employer-employee relationship. There is no evidence that
Corner Alley or the Corporate Defendants ever so much as communicated with Graziolli. Neither
Defendant provided Graziolli any instruction on what to do or what tools to use. Further still,
neither defendant directly hired or payed Graziolli. Zarlenga was given the power to select which
off-duty officers to schedule and paid those officers with the cash given to him by Seeholzer.
Neither of Plaintiffs’ two developed arguments persuade the Court otherwise. Plaintiffs
first argue that because Corner Alley Uptown provided workers’ compensation to Graziolli,
Graziolli must be an employee. In support of this argument, Plaintiffs cite John Walters v.
Americab for the proposition that an employer-employee relationship is required for workers’
compensation eligibility. Doc #: 85 at 51 citing 118 Ohio App.3d 180, 182 (Ohio App. 8th Dist.
1977). But Ohio’s workers’ compensation law does not use the common law test to determine
employment status. Hartings v. Nat’l Mut. Ins. Co., Case No. 10-13-11, 2014 Ohio App. LEXIS
1757, at 28 (Ohio App. 3d Dist. 2014). Instead, who is an “employee” for purposes of workers’
26

compensation is determined by Ohio Rev. Code Ann. 4123.01(A)(1). Thus, whether Graziolli
was eligible to receive workers’ compensation benefits by Corner Alley Uptown has no bearing
on whether Graziolli was an employee for purposes of vicarious liability.
Second, Plaintiffs assert that a question of fact remains because there is no evidence that
Corner Alley and the Corporate Defendants did not reserve the right to control Graziolli’s
manner and means of doing the work. Doc #: 85 at 52. But it is undisputed that Graziolli began
working at the Corner Alley Uptown without any communication from Corner Alley or the
Corporate Defendants. In doing so, Graziolli could have only begun working with the
understanding that he controlled the manner and means of doing the work.
Accordingly, the undisputed facts show that Corner Alley and the Corporate Defendants
did not reserve the right to control the manner or means of doing the work. Thus, Graziolli was
an independent contractor.
ii. Graziolli’s Employment by the Corporate Defendants
The Corporate Defendants also claim that Graziolli was not their independent contractor.
Doc #: 99 at 8. In support of this argument, the Corporate Defendants merely assert that Graziolli
did not provide his services to any location owned, operated, or controlled by the Corporate
Defendants. Doc #: 99 at 8. As an initial matter, the record is not clear on whether the Corporate
Defendants operated or controlled Corner Alley Uptown. Further, which defendant employs
Seeholzer and Maron, who indirectly hired Graziolli through Zarlenga, is unclear. Thus, issues of
material fact remain on whether Graziolli was the Corporate Defendants’ independent contractor.
iii. Liability for Independent Contractor’s Acts
Generally, an employer is not vicariously liable for the acts of its independent contractor.
However, under the inherently hazardous work exception, an employer is vicariously liable for

27

the acts of its independent contractor when the work involves a high risk of physical harm to
others, which is recognizable in advance and is inherent in the work itself. Pusey v. Bator, 94
Ohio St. 3d 275, 279-80 (2002). “The work must create a risk that is not a normal, routine matter
of customary human activity, such as driving an automobile, but is rather a special danger to
those in the vicinity arising out of the particular situation created, and calling for special
precautions.” Id. at 280.
Plaintiffs assert that Pusey shows as a matter of law that being an armed guard is an
inherently hazardous activity. Doc #: 85 at 56-58. Corner Alley argues that Pusey does not apply
because the court’s holding was limited to hiring guards for the protection of property. Doc #: 97
at 3. Additionally, Corner Alley argues that the inherently hazardous work exception does not
apply because there is no evidence that Corner Alley should have been aware of a likely risk that
a police officer would use excessive force. Doc #: 97 at 4.
The Court agrees with Plaintiffs. In Pusey, a company hired security guards to guard its
property and deter thieves and vandals. Pusey, 94 Ohio St. 3d at 276. One evening, a guard shot
and killed an intruder. Id. at 277-78. The Court determined that the work of being an armed
guard was inherently dangerous because the guards were instructed to deter thieves and vandals
as opposed to merely conduct surveillance. Id. at 281. Thus, Pusey stands for the proposition that
the work of an armed security guard who is expected to encounter potentially violent situations is
inherently dangerous.
Here, Graziolli was hired to be a security guard at Corner Alley Uptown. He performed
this function while being armed. The hours that security guards were at Corner Alley Uptown
were extended after a fight occurred at the location. Viewing the evidence in a light most
favorable to the nonmoving party, a reasonable jury could conclude that Graziolli was an armed

28

security guard who was expected to encounter potentially violent situations. That he was an offduty police officer is irrelevant. Thus, for purposes of summary judgement, his work was
inherently dangerous and the inherently dangerous work exception applies.
iv. Acting as a Police Officer
A company employing an off-duty officer is not vicariously liable for the actions of its
employees when the employee is acting solely as a police officer. Evans v. Smith, 646 N.E.2d
217, 221 (1st Dist. 1994). However, a company is vicariously liable for the actions of an
employee acting in a dual capacity of employee and police officer when the acts are outside the
public duties of a police officer and within the scope of his employment and solely for the
benefit of his employer or the act was authorized or ratified by the employer. Id. at 222-23.
Corner Alley asserts that Graziolli was acting solely as a police officer during all of his
encounters with Yatsko. Doc #: 73 at 13. As an initial matter, the only relevant time here is when
Graziolli encountered Yatsko in front of Corner Alley Uptown and subsequently shot Yatsko. As
already explained above, a reasonable jury could conclude that Graziolli encountered Yatsko to
preserve the peace (a public function), to prevent Yatsko from reentering Corner Alley Uptown
(a private function), or both. Thus, a reasonable jury could conclude that Graziolli was acting
outside of his public duties, within the scope of his employment as a security guard, and solely
for the benefit of Corner Alley Uptown.
In conclusion, the Court finds that Corner Alley and the Corporate Defendants are not
entitled to summary judgement on the issue of vicarious liability because (1) Graziolli was an
independent contractor, (2) the hazardous work exception to the independent contractor vicarious
liability rule applies, (3) issues of fact remain on whether Graziolli was the Corporate
Defendant’s independent contractor, and (4) a reasonable jury could conclude that Graziolli was

29

acting outside his public duties and solely for the benefit of Corner Alley Uptown. Thus, Corner
Alley’s and the Corporate Defendants’ Motions for Summary Judgement, Docs ##: 73, 79, are
DENIED as they pertain to Claims Four and Nine.7
b. Direct Liability Claims (Claims Seven & Eight)
Plaintiffs raise two direct liability claims against Corner Alley and the Corporate
Defendants: (i) premises liability (Claim Seven) and (ii) negligent/reckless hiring, retention
and/or supervision (Claim Eight). Doc #: 48 at 19-22. Corner Alley and the Corporate
Defendants move for summary judgment on both claims.
i. Premises Liability (Claim Seven)
To establish negligence in premises liability, the plaintiff must show the existence of a
duty, a breach of that duty, and an injury proximately resulting from the breach of duty.
Armstrong v. Best Buy Co., 99 Ohio St. 3d 79, 81 (2003). A party that does not control the
subject premises owes no duty under premises liability. See Fryberger v. Lake Cable Rec. Ass’n,
533 N.E.2d 738, 741 (1988).
Despite broadly asserting that it is entitled to summary judgement, Corner Alley’s initial
motion makes no argument that this Court can construe as applying to Plaintiffs’ premises
liability claim. Thus, Corner Alley waived arguing for summary judgment on the premises
liability claim. See Kuhn, 709 F.3d at 624.
The Corporate Defendants assert that they are entitled to summary judgement because
there is no evidence that they ever controlled the subject premises. Doc #: 79 at 11. In support,
the Corporate Defendants point to an affidavit of Geoffrey S. Goss. Doc #: 79 at 11. Goss
explains that MRN Limited Partnership never had an ownership interest in Corner Alley and

7

Because this court determined that Graziolli is not liable for negligence and IIED (Claims Five and Six), Corner
Alley and the Corporate Defendants cannot be vicariously liable for negligence.

30

“never provided any support or direction regarding the operation of Corner Alley Uptown.” Doc
#: 79-4 at 1.
But Plaintiffs have established an issue of material fact over what control the Corporate
Defendants exerted over Corner Alley Uptown. While Goss asserts MRN Limited Partnership
did not support or direct Corner Alley Uptown, Goss does not speak to whether 629 Euclid Ltd.
controlled Corner Alley Uptown. Furthermore, which corporation authorized the hiring of and
actually hired Graziolli is in dispute. These issues of material fact preclude the grant of summary
judgement. Accordingly, Corner Alley’s and the Corporate Defendants’ Motions for Summary
Judgment, Docs ##: 73, 79, are DENIED as they relate to Plaintiffs’ premises liability claim.
ii. Negligent Hiring, Retention, and/or Supervision (Claim Eight)
The elements of negligent hiring, retention, and supervision are: (1) the existence of an
employment relationship; (2) the employee’s incompetence; (3) the employer’s actual or
constructive knowledge of such incompetence; (4) the employee’s act or omission causing the
plaintiff’s injuries; and (5) the employer’s negligence in hiring or retaining, training or
supervising the employee as the proximate cause of Plaintiffs injuries. LaMusga v. Summit
Square Rehab, LLC, 94 N.E.3d 1137, 1144 (Ohio App. 2d Dist. 2017).
The Corporate Defendants move for summary judgement claiming that a negligent hiring,
retention, and supervision claim is inapplicable because Graziolli was an independent contractor.
Doc #: 79 at 13-14. But the Corporate Defendants are wrong. Most Ohio cases correctly find that
“one is liable for its own negligence in engaging or retaining an incompetent or careless
independent contractor.” Leach v. Newport Yellow Cab, Inc., 628 F. Supp. 293, 299 (N.D. Ohio
1985) citing Mooney v. Stainless, Inc., 338 F.2d 127, 131 (6th Cir. 1964); Evans v. Akron Gen.
Med. Ctr., 2018 Ohio App. LEXIS 3272, at *28 (Ohio App. 9th Dist. 2018).

31

Both Corner Alley and the Corporate Defendants move for summary judgement because
they did not have actual or constructive knowledge of Graziolli’s alleged incompetency. Doc #:
97 at 13; 79 at 15. “Constructive knowledge means knowledge that one using reasonable care or
diligence should have, and therefore is attributable to a given person.” State v. Barry, 145 Ohio
St.3d 354, 360 (2015) (quotation omitted).
Plaintiffs assert that Corner Alley and the Corporate Defendants had constructive
knowledge of Graziolli’s incompetency because they paid no attention to the DOJ investigation,
did not seek out information concerning excessive force by Cleveland police officers, and did no
background checks on Graziolli before hiring him. Doc #: 85 at 48.
The Court agrees with Corner Alley and the Corporate Defendants. Corner Alley and the
Corporate Defendants could not have known that Graziolli was incompetent in such a way that
would lead to Yatsko’s shooting death. As explained above, the DOJ Report is not probative on
whether Corner Alley or the Corporate Defendants would be on notice that Graziolli was likely
to use excessive force as a private security guard in 2018.
Rather, only a personal history of using excessive force would have shown that Graziolli
was incompetent in such a way. Graziolli had not previously discharged his pistol within his 27year career. And Graziolli’s disciplinary history consists of a physical altercation in 2004, failure
to complete use of force investigations, and tampering with records. Docs ##: 85-4, 84-7, 85-8,
85-10. These facts would not cause a person exercising reasonable care to believe that Graziolli
was incompetent in such a way that would cause him to shoot Yatsko
Thus, Corner Alley’s and the Corporate Defendants’ Motions for Summary Judgement,
Docs ##: 73, 79, are GRANTED as they relate to Plaintiffs’ negligent hiring, retention, and/or
supervision claim.

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IV.

Conclusion

For the above reasons, Graziolli’s Motion for Summary Judgement, Doc #: 81, is
GRANTED IN PART and DENIED IN PART; The City of Cleveland’s Motion for Summary
Judgement, Doc #: 66, is GRANTED; Corner Alley’s Motion for Summary Judgement, Doc #:
73 is GRANTED IN PART and DENIED IN PART; and the Corporate Defendants’ Motion for
Summary Judgement, Doc #: 79, is GRANTED IN PART and DENIED IN PART.

IT IS SO ORDERED.
/s/Dan Aaron Polster May 1, 2020
DAN AARON POLSTER
UNITED STATES DISTRICT COURT

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