2016 Ohio 2909
Ohio Ct. App.2016Background
- On Feb. 5, 2014, 74-year-old Linda Kurz was walking in Winton Woods Park (part of Great Parks of Hamilton County) when she was struck by a Great Parks snowplow driven by Ramon Capetillo and suffered serious injuries.
- Two park employees were plowing; Christopher Fahner was ahead and performed an evasive maneuver (moved to center and nearly stopped) to avoid Kurz; Capetillo was following closely behind Fahner.
- Capetillo testified he looked down to raise his plow, then looked up and struck Kurz; Fahner testified he had seen Kurz ~200 feet ahead and had stopped or nearly stopped to go around her.
- Kurz sued Great Parks (negligence) and Capetillo (willful/wanton/reckless conduct). Great Parks and Capetillo moved for summary judgment claiming immunity under R.C. Chapter 2744; the trial court denied the motion.
- The court of appeals reviewed whether (1) Great Parks lost governmental immunity under R.C. 2744.02(B)(1) (negligent operation of a motor vehicle by an employee) and (2) whether Capetillo, as an employee, remained immune absent malicious, bad-faith, wanton, or reckless conduct under R.C. 2744.03(A)(6).
- Holding: summary judgment denial affirmed as to Great Parks (issue for jury whether Capetillo was negligent); reversed as to Capetillo (no evidence of conscious disregard/recklessness), and judgment entered for Capetillo.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Great Parks is immune under R.C. 2744 where an employee operating a vehicle injured a pedestrian | Kurz: R.C. 2744.02(B)(1) exception applies because Capetillo was negligent in operating the snowplow after witnessing evasive action ahead | Great Parks: No negligence; Capetillo had right-of-way and no duty until too late to avoid collision | Court: Exception applies; Great Parks not immune because Capetillo was on notice of danger when lead plow evasively maneuvered and a jury must decide negligence |
| Whether Capetillo (employee) is immune under R.C. 2744.03(A)(6) | Kurz: Capetillo acted recklessly/wantonly by failing to take precautions after noticing evasive action | Capetillo: Employee immunity applies unless acts were malicious, in bad faith, or wanton/reckless; here conduct was at most negligent | Court: Reversed re: Capetillo — no evidence of conscious disregard; conduct does not meet high recklessness standard; Capetillo immune and judgment entered for him |
Key Cases Cited
- Deming v. Osinski, 24 Ohio St.2d 179, 265 N.E.2d 554 (driver with right-of-way has no duty to look for violations but must exercise due care upon discovering a perilous situation)
- Menifee v. Ohio Welding Prods., Inc., 15 Ohio St.3d 75, 472 N.E.2d 707 (elements of negligence and foreseeability standard)
- Anderson v. Massillon, 134 Ohio St.3d 380, 983 N.E.2d 266 (recklessness requires conscious disregard of known or obvious risk)
- O'Toole v. Denihan, 118 Ohio St.3d 374, 889 N.E.2d 505 (distinction between negligence and recklessness; consciousness requirement)
- Marchetti v. Kalish, 53 Ohio St.3d 95, 559 N.E.2d 699 (Restatement explanation of reckless misconduct vs. negligence)
- Fabrey v. McDonald Village Police Dept., 70 Ohio St.3d 351, 639 N.E.2d 31 (recklessness issue generally for jury but summary judgment appropriate when facts do not meet high standard)