ROXANN BROWNING, PLAINTIFF-APPELLANT, v. CITY OF FOSTORIA, ET AL., DEFENDANTS-APPELLEES.
CASE NO. 13-09-28
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT SENECA COUNTY
May 17, 2010
[Cite as Browning v. Fostoria, 2010-Ohio-2163.]
Aрpeal from Seneca County Common Pleas Court Trial Court No. 08-CV-0463 Judgment Affirmed
Charles R. Hall, Jr., Appellant
Frank H. Scialdone, for Appellee
{¶1} Plaintiff-Appellant, Roxann Browning, appeals from the judgment of the Court of Common Pleas of Seneca County granting the City of Fostoria and Officer Lucas Elchert‘s joint motion for summary judgment. On appeal, Browning argues that the trial court abused its discretion in granting summary judgment where genuine issues of material fact existed as to whether Officer Elchert was responding to an emergency call and whether his actions constituted willful and wanton misconduct such that both the City of Fostoria and Officer Elchert were immune from liability pursuant to
{¶2} In September 2008, Browning filed a complaint against the City of Fostоria (“Fostoria“) and Officer Elchert claiming damages in excess of $25,000 proximately caused by Officer Elchert‘s willful and wanton conduct in driving through a red light in response to a dispatch call and colliding with her vehicle and seriously injuring her. In her complaint, Browning alleged that Fostoria negligently trained and supervised Officer Elchert, and that Fostoria was not protected by sovereign immunity, as an exception to immunity applied for injuries sustained due to a police officer‘s willful and wanton operation of a motor vehicle while responding to an emergency dispatch call.
{¶4} In April 2009, Fostoria and Officer Elchert filed a joint motion for summary judgment pursuant to
{¶6} Furthermore, the deposition of Officer Elchert was filed, wherein he stated that he has been a police officer with Fostoria for a year-and-a-half; that, in March 2008, he had been a police officer with Fostoria for nine months; that he was on probation for the first twelve months of employment and successfully completed the probationary period; that the policies and procedures for Fostoria Police included guidelines about responding to a call for service at a high rate of speed, although he did not know the guidelines verbatim in March 2008; and, that the guidelines provided that, when approaching a red light when responding to a call with lights and sirens, he must slow down or stop to аssure the intersection is clear.
{¶8} Browning‘s deposition was also filed, wherein she stated that she was not using her cell phone as she was approaching the intersection shortly before the accident; that she did not have a hearing problem; that, as she was approaching the intersection, she did not hear police sirens; that, as she entered the intersection on a green light, she saw a police cruiser, and it struck her vehicle within seconds; that she did see the lights from the police cruiser; that she did not attempt to swerve out of the way or brake to avoid the collision; that she did not know how fast the police cruiser was traveling; that she was driving approximately fifteen or twenty m.p.h. at the time of the accident, and the police cruiser was traveling faster than she was; and, that she had not taken any prescription medications that day or consumed any alcoholic beverages.
{¶9} In June 2009, subsequent to а hearing on the matter, the trial court granted Fostoria‘s and Officer Elchert‘s joint motion for summary judgment.
{¶10} In July 2009, the trial court, upon its own motion, ordered Browning to pay court costs, and Browning subsequently appealed the trial court‘s grant of summary judgment. However, we subsequently dismissed her appeal due to the lack of a final appealable order.
This matter comes before the Court on the motion of defendants for summary judgment pursuant to Civil Rule 56. Plaintiff filed a response to defendants’ motion. Defendants filed a reply. A hearing was held on June 23, 2009.
The Court has been fully advisеd, having reviewed the motion, memoranda, pleadings, depositions, exhibit, affidavit and applicable law, and having heard argument of counsel.
For the reasons stated on the record, the Court finds that there does not present a triable question of fact regarding the material issues of 1.) the existence of the emergency call at or near the time of this accident and 2.) whether there was willful or wanton misconduct by the police officer. The Court further finds that the Defendants are entitled to summary judgment against Plaintiff on all three claims for relief pursuant to Civil Rule 56 as a matter of law.
Judgment is rendered in favor of the Defendants and against the Plaintiff on all three claims presented. Plaintiff‘s Complaint is dismissеd in its entirety.
(Sep. 2009 Judgment Entry, pp. 1-2).
{¶12} It is from the trial court‘s September 2009 judgment entry granting summary judgment to Fostoria and Officer Elchert that Browning appeals, presenting the following assignment of error for our review.
THE TRIAL COURT ABUSED ITS DISCRETION BY GRANTING THE APPELLEES [SIC] MOTION FOR SUMMARY JUDGMENT.
{¶14} An appellate court reviews a summary judgment order de novo. Hillyer v. State Farm Mut. Auto. Ins. Co. (1999), 131 Ohio App.3d 172, 175. Accordingly, a reviewing court will not reverse an otherwise cоrrect judgment merely because the lower court utilized different or erroneous reasons as the basis for its determination. Diamond Wine & Spirits, Inc. v. Dayton Heidelberg Distr. Co., 148 Ohio App.3d 596, 604-605, 2002-Ohio-3932, citing State ex rel. Cassels v. Dayton City School Dist. Bd. of Ed., 69 Ohio St.3d 217, 222, 1994-Ohio-92. Summary judgment is appropriate when, looking at the evidence as a whole: (1) there is no genuine issue as to any material fact; (2) reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made; and, therefore, (3) the moving party is entitled to judgment as a matter of law.
{¶16}
(A)(1) For the purposes of this chapter, the functions of political subdivisions are hereby classified as governmental functions and proprietary functions. Except as provided in division (B) of this section, a political subdivision is not liable in damages in a civil action for injury, death, or loss to person or property allegedly caused by any act or omission of the political subdivision or an employee of the political subdivision in connection with a governmental or proprietary function.
(B) Subject to sections 2744.03 and 2744.05 of the Revised Code, a political subdivision is liable in damages in a civil action for injury, death, or loss to person or property allegedly caused by any act or omission of the political subdivision or of any of its employees in connection with a governmental or proprietary function, as follows:
(1) Except as otherwise provided in this division, political subdivisions are liable for injury, death, or loss to person or property caused by the negligent operation of any motor vehicle by their employees when the employees are engaged within the scope of their employment and authority.
{¶18} Finally, the third tier of the analysis provides three defenses to the immunity exception under
{¶19} Furthermore,
(6) In addition to any immunity or defense referred to in division (A)(7) of this section and in сircumstances not covered by that division or sections 3314.07 and 3746.24 of the Revised Code, the employee is immune from liability unless one of the following applies:
(a) The employee‘s acts or omissions were manifestly outside the scope of the employee‘s employment or official responsibilities;
(b) The employee‘s acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner;
{¶20} Here, there was no dispute that Officer Elchert was acting within the scope of his employment and was engaged in a governmental or proprietary function at the time of his collision with Browning. However, the issue is whether Officer Elchert was responding to an emergency сall at the time of the collision and whether his conduct in operating his police cruiser was willful and wanton.
{¶21}
{¶22} Moreover, willful misconduct “‘involves an intent, purpose or design to injure.‘” Gladon v. Greater Cleveland Regional Transit Auth., 75 Ohio St.3d 312, 319, 1996-Ohio-137, quoting McKinney v. Hartz and Restle Realtors, Inc. (1987), 31 Ohio St.3d 244, 246. Wanton misconduct is “‘the failure to exercise any care whatsoever. * * * [M]ere negligence is not converted into wanton misconduct unless the evidence establishes a disposition to perversity on the part of the tortfeasor. Such perversity must be under such conditions that the actor must be conscious that his conduсt will in all probability result in injury.‘” Grange Mut. Cas. Co. v. Bockelman, 3d Dist. No. 7-07-13, 2008-Ohio-1903, ¶17, quoting McGuire, 128 Ohio App.3d at 481.
{¶23} Turning to the facts of the case, Officer Elchert stated that he was responding to a dispatch call in regards to a fight at a local trailer park; that he responded with lights and sirens; that, as he approached the red light at the
{¶24} Although Officer Elchert also stated that he was not sure of his rate of speed at the time he entered the intersection, that he could not recall the exact procedure for responding to an emergency call, and that he was disciplined as a result of the accident, there was insufficient evidence to find that Officer Elchert‘s conduct was willful and wanton. He clearly slowed down and checked the intersection for traffic and warned other motorists by using his overhead lights and sirens. Accordingly, we find this conduct does not rise to the level of an “intent, purpose or design to injure” or “the failure to exercise any care whatsоever,” and that immunity exists pursuant to
{¶25} Additionally, Browning argues that Officer Elchert was not responding to an emergency call at the time of the accident because the dispatch records indicate that he was excused from responding to the call minutes before the accident.
{¶26} Officer Elchert did state that dispatch excused him from responding to the emergency call at Nye‘s approximately three minutes before dispatch called regarding his accident. However, he also stated that he was removed from the emergency call as a result of the accident, and only a three minute discrepancy between the two dispatch calls supports such a conclusion. Furthеrmore, Browning presented no evidence other than the time difference between the two
{¶27} Consequently, we find that no genuine issues of material fact exist establishing facts other than that Officеr Elchert was responding to an emergency call at the time of the accident and that he was not acting in a willful and wanton manner. We therefore conclude that both Officer Elchert and Fostoria have immunity from tort liability pursuant to
{¶28} Accordingly, we overrule Browning‘s assignment of error.
{¶29} Having found no error prejudicial to the appellant herein, in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
SHAW and PRESTON, J.J., concur.
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