2015 Ohio 3667
Ohio Ct. App.2015Background
- On Feb. 27, 2014 Lt. Edward Bombrys struck the rear of a vehicle driven by Bryan White (with passenger Shirley Richards) while both were driving on Douglas Road.
- Bombrys had heard a radio transmission that another officer had stopped two suspects and testified he was going to assist that officer at the time of the collision.
- In deposition Bombrys said he had discretion whether to respond and could have continued patrol; he did not notify dispatch or activate lights/siren.
- Appellants sued the City of Toledo and Bombrys for negligence; appellees moved for summary judgment claiming political-subdivision immunity under R.C. 2744.02, asserting Bombrys was responding to an emergency call.
- Appellees submitted an affidavit with their reply stating Bombrys was professionally obligated to assist and could have been disciplined for failing to respond; the trial court relied on the affidavit and granted summary judgment.
- The court of appeals reversed, finding the affidavit contradicted Bombrys’s deposition and that genuine issues of material fact remained about whether Bombrys was on an emergency call.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court could consider Bombrys’s affidavit that contradicted his deposition | White: affidavit conflicts with Bombrys’s deposition; contradictory affidavits cannot be used to obtain summary judgment | City: affidavit clarifies Bombrys’s obligation to assist and supports immunity | Court: affidavit contradicted prior deposition and cannot be relied on; reversal on this ground |
| Whether Bombrys was ‘‘responding to an emergency call’’ under R.C. 2744.02(B)(1)(a) | White: facts (no lights/siren, no dispatch notice, deposition showing discretion) create genuine factual dispute that Bombrys was not on an emergency call | City: Bombrys was professionally obligated to assist an outnumbered officer, so his vehicle operation is immune absent willful/wanton misconduct | Court: genuine issues of material fact exist about whether Bombrys was professionally obligated/responding to an emergency call; summary judgment inappropriate |
Key Cases Cited
- Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 671 N.E.2d 241 (summary-judgment standard and de novo appellate review)
- Bryd v. Smith, 110 Ohio St.3d 24, 850 N.E.2d 47 (moving-party affidavit that contradicts prior testimony cannot be used to obtain summary judgment)
- Mitseff v. Wheeler, 38 Ohio St.3d 112, 526 N.E.2d 798 (moving party must specifically delineate basis for summary judgment)
- Dresher v. Burt, 75 Ohio St.3d 280, 662 N.E.2d 264 (nonmoving party’s burden to show genuine issue of material fact)
- Colbert v. Cleveland, 99 Ohio St.3d 215, 790 N.E.2d 781 (definition of ‘‘call to duty’’ includes situations required by an officer’s professional obligation)