Gilbert v. Cleveland
2013 Ohio 5252
Ohio Ct. App.2013Background
- Gilbert, as administrator for herself, minor children, and the Gilbert estate, sued Cotner and the City of Cleveland for injuries from a fatal I-71 collision.
- Cotner, a Cleveland police officer, was driving a patrol cruiser behind a stalled SUV in the left lane; Gilbert pushed his stalled car to the right berm.
- Cotner swerved to avoid Gilbert after Gilbert became visible; Gilbert died months later in a skilled nursing facility.
- Cotner’s police reports did not disclose that he paced the SUV to gauge speeding; a five-member panel later learned he had not disclosed this in any reports.
- Cotner moved for summary judgment arguing immunity under R.C. 2744; Bonnie argued he was not on an emergency call and thus immune defenses did not apply.
- Trial court denied summary judgment; the issue on appeal was whether Cotner’s conduct was malicious, wanton, reckless, or in bad faith, negating immunity for an employee.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Cotner is entitled to governmental immunity as a police employee | Cotner acted unlawfully and was reckless, breaching duty; immunity does not apply if malice/wanton conduct shown. | Cotner acted within employment; no genuine issue of malice, recklessness, or bad faith; entitled to immunity. | Question of fact on malice/reckless/bad faith; summary judgment improper |
| Did the motor vehicle exception apply to Cotner as a subjective action of a municipal employee | Motor vehicle exception strips immunity when employee operates negligently during a response. | Motor vehicle exception applies to political subdivisions; does not strip immunity for the employee here. | Motor vehicle exception does not automatically pierce employee immunity; analysis under 2744.03 remains |
| Whether there exists a genuine issue of material fact as to whether Cotner acted with malice, wantonness, recklessness, or bad faith | Expert report suggests speeding and unsafe following distance; supports willful/wanton/reckless conduct. | Speeding or policy violations alone do not prove malicious or reckless conduct; jury should decide. | Material facts in dispute; summary judgment improper |
Key Cases Cited
- Grafton v. Ohio Edison Co., 77 Ohio St.3d 102 (Ohio 1996) (summary judgment standard and burden shifting)
- Dresher v. Burt, 75 Ohio St.3d 280 (Ohio 1996) (burden on movant to show absence of genuine issue of material fact)
- Zivich v. Mentor Soccer Club, 82 Ohio St.3d 367 (Ohio 1998) (summary judgment standard and burden shifting clarified)
- Rankin v. Cuyahoga Cty. Dept. of Children & Family Servs., 118 Ohio St.3d 392 (2008) (individual employee immunity scope for willful, wanton, reckless, or bad-faith conduct)
- Cramer v. Auglaize Acres, 113 Ohio St.3d 266 (2007) (definitions of malice, bad faith, and related standards)
- Anderson v. Massillon, 134 Ohio St.3d 380 (2012) (definition of wanton and reckless misconduct)
- O'Toole v. Denihan, 118 Ohio St.3d 374 (2008) (policy/directive violations and misconduct proof standards)
- Fabrey v. McDonald Village Police Dept., 70 Ohio St.3d 351 (1994) (malice, wanton, reckless, or bad-faith conduct standard for immunity cases)