2013 Ohio 5317
Ohio Ct. App.2013Background
- On Nov. 22, 2009, Cleveland police officer John Cotner struck George Gilbert, who was outside his disabled car on I-71; Gilbert later died from his injuries.
- Plaintiffs sued the City and Cotner for negligence, wrongful death, and related claims.
- The City moved for summary judgment asserting statutory immunity under R.C. Chapter 2744, relying on the exception for officers responding to an "emergency call."
- Cotner testified he was "pacing" an SUV he believed to be speeding (traveling up to 73 mph) immediately before the collision; accident reports did not mention pacing.
- The trial court denied summary judgment; on appeal the Eighth District affirmed, finding genuine issues of material fact on whether Cotner was responding to an emergency call and whether his conduct was willful or wanton.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Cotner was "responding to an emergency call" under R.C. 2744.01(A) | Cotner was not on a call; his pacing was self-initiated and not documented, so no call to duty | Pacing a suspected speeder is a response required by professional obligation and qualifies as an emergency call | Genuine issue of material fact exists whether Cotner was pacing; cannot decide as a matter of law for summary judgment |
| Whether officer's unrecorded assertion of pacing can be credited at summary judgment | Plaintiffs argue the absence of pacing in contemporaneous reports undermines Cotner’s credibility | City argues an officer may later identify a call-to-duty defense and that silence in reports does not automatically create a factual dispute | Court found the omission creates a triable credibility issue; Cotner's self-serving deposition is insufficient to resolve at summary judgment |
| Whether Cotner's conduct amounted to willful or wanton misconduct (negating immunity) | Cotner’s close following, speeding, and failing to maintain assured clear distance show wanton/willful conduct | City contends conduct was reasonable in context of law-enforcement pacing and not willful or wanton | Court held a genuine issue of material fact exists on willful/wanton misconduct given circumstances and expert opinion; jury must decide |
| Whether summary judgment for the City was appropriate | Plaintiffs: denial appropriate because factual disputes remain on pacing and culpability | City: summary judgment proper under R.C. 2744.02(B)(1)(a) if officer was responding to a call and not willful/wanton | Summary judgment was properly denied; issues of fact preclude resolution as a matter of law |
Key Cases Cited
- Grafton v. Ohio Edison Co., 77 Ohio St.3d 102 (explains de novo review of summary judgment)
- Dresher v. Burt, 75 Ohio St.3d 280 (sets movant's burden for summary judgment)
- Colbert v. Cleveland, 99 Ohio St.3d 215 (defines "emergency call" as response required by professional obligation)
- Smith v. McBride, 130 Ohio St.3d 51 (inquiry focuses on whether officer acted pursuant to a call to duty)
- Anderson v. Massillon, 134 Ohio St.3d 380 (defines "willful" and "wanton" misconduct for R.C. 2744 context)
- Horton v. Harwick Chem. Corp., 73 Ohio St.3d 679 (summary judgment standards)
- Zivich v. Mentor Soccer Club, 82 Ohio St.3d 367 (summary judgment standards)