LARRY E. CAROZZA, et al. v. JAMES LUSK, et al.
CASE NO. CA2021-12-155
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO BUTLER COUNTY
9/19/2022
2022-Ohio-3272
CIVIL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CV 2020 10 1554
Surdyk, Dowd & Turner Co., L.P.A., and Jeffrey C. Turner and David B. Shaver, for appellants.
HENDRICKSON, J.
{1} Appellants, James Lusk (“Lusk“) and the city of Middletown, Ohio (“City“), appeal the denial of their respective motions for summary judgment by the Butler County Court of Common Pleas. For the reasons discussed below, we reverse the trial court‘s denial of summary judgment as to both Lusk and the City.
{2} On January 11, 2017, at 7:17 a.m., emergency dispatchers received a call
{3} Leaving the station, Officer Lusk turned right onto Reinartz Boulevard. He encountered a red light at the intersection of Reinartz Boulevard and Verity Parkway. Dash camera video footage from his cruiser shows an Ohio Department of Transportation salt truck and other traffic at that intersection. Officer Lusk cleared the intersection, proceeding through the red light. He accelerated, continuing eastbound on Reinartz Boulevard through light traffic. He then drove through a green light at the intersection of Reinartz Boulevard and Clark Street, reaching a top of speed of approximately 60 miles per hour.
{4} Officer Lusk began braking as he approached a red light at the intersection of Reinartz Boulevard and Charles Street. He saw a school bus turn westbound onto Reinartz Boulevard from southbound on Charles Street, but saw no other traffic. After having slowed to approximately 35 miles per hour, and believing the intersection was clear, Officer Lusk proceeded into the intersection. At the same time, Larry Carozza was driving southbound on Charles Street in his Kalmar Ottawa T2 terminal-tractor, and was stopped at a red light at the intersection with Reinartz Boulevard. When the light turned green, Carozza drove into the intersection at about 15-20 miles per hour after the school bus made a righthand turn onto westbound Reinartz in front of him. Carozza did not see Officer Lusk approaching, nor did Officer Lusk see Carozza. As a result, Officer Lusk‘s cruiser collided with Carozza‘s
{5} Carozza and his wife, Kenna Carozza (“appellees“), filed a complaint for negligence against both Lusk and the City. Appellees filed a motion for partial summary judgment on the issue of Carozza‘s comparative negligence and appellants filed a motion for summary judgment, arguing that they were entitled to immunity pursuant to
{6} THE TRIAL COURT ERRED WHEN IT DENIED DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND DENIED DEFENDANTS THE BENEFIT OF THE IMMUNITY CONFERRED UPON THEM BY REVISED CODE CHAPTER 2744.
{7} Appellants argue that the trial court erred in denying their motion for summary judgment on the basis of the Political Subdivision Tort Liability Act, which they contend provides immunity against appellees’ suit.
Standard of Review
{8} “Whether a party is entitled to immunity is a question of law properly determined by the court prior to trial pursuant to a motion for summary judgment.” Pelletier v. Campbell, 153 Ohio St.3d 611, 2018-Ohio-2121, ¶ 12. “The review of a summary judgment denying political-subdivision immunity is de novo and is governed by the summary-judgment standard set forth in
{9} Summary judgment is proper if there are no genuine issues of material fact to be litigated, the moving party is entitled to judgment as a matter of law, and reasonable minds can come to only one conclusion, and that conclusion is adverse to the nonmoving party. Lloyd v. Ernst, 12th Dist. Warren No. CA2018-05-058, 2019-Ohio-756, ¶ 15. The moving party bears the initial burden of informing the court of the basis for the motion and demonstrating the absence of a genuine issue of material fact. Wulf v. Bravo Brio Restaurant Group, Inc., 12th Dist. Butler No. CA2018-12-238, 2019-Ohio-3434, ¶ 16.
{10} Once this burden is met, the nonmoving party has a reciprocal burden to set forth specific facts showing there is some genuine issue of material fact yet remaining for the trial court to resolve. Hellmuth v. Hood, 12th Dist. Butler No. CA2018-07-154, 2019-Ohio-4835, ¶ 16. Summary judgment is proper if the nonmoving party fails to set forth such facts. Anderson v. Jancoa, 12th Dist. Butler No. CA2019-01-018, 2019-Ohio-3617, ¶ 23. In determining whether a genuine issue of material fact exists, the evidence must be construed in favor of the nonmoving party. Springboro Commons Retirement Villa, Inc. v. Feltner, 12th Dist. Warren No. CA2020-07-040, 2021-Ohio-544, ¶ 11.
Political Subdivision Liability
{11} ”
{12} “The second tier of the analysis focuses on the five exceptions to immunity listed in
{13}
Public Employee Liability
{14} Ohio law provides immunity for employees of political subdivisions under
{15} “[W]anton misconduct and reckless conduct are not synonymous with negligence, for which an employee of a political subdivision is immune from liability.” Maternal Grandmother v. Hamilton Cty. Dept. of Job and Family Servs., Slip Opinion No. 2021-Ohio-4096, ¶ 8. Furthermore, “‘willful,’ ‘wanton,’ and ‘reckless’ describe different and distinct degrees of care and are not interchangeable.” Anderson v. Massillon, 134 Ohio St.3d 380, 2012-Ohio-5711, ¶ 31. “When the General Assembly used the terms ‘willful’ or ‘wanton’ in
Analysis
{16} “Willful or wanton misconduct” by Lusk would allow the City, as a political subdivision to be held liable under
{17} Preliminarily, we note that while appellees question whether Lusk was responding to an “emergency call” as required by
The City‘s Motion for Summary Judgment
{18} The first issue is whether the trial court erred in denying the City‘s motion for summary judgment. It is undisputed that—as to the first tier of the sovereign-immunity analysis—operating a police cruiser in response to an emergency call is a “governmental function.” As the trial court noted, the parties “agree that Lusk was acting within the course and scope of his employment at the time of the accident.” We therefore begin our analysis at the second tier, and focus on whether the specific defense of
{19} “Willful misconduct implies an intentional deviation from a clear duty or from a definite rule of conduct, a deliberate purpose not to discharge some duty necessary to safety, or purposefully doing wrongful acts with knowledge or appreciation of the likelihood of resulting injury.” Anderson, 2012-Ohio-5711 at ¶ 32. “An individual acts in a ‘wanton’ manner when that person fails ‘to exercise any care toward those to whom a duty of care is owed in circumstances which there is a great probability that harm will result.‘” J.H. v. Hamilton City School Dist., 12th Dist. Butler No. CA2012-11-236, 2013-Ohio-2967, ¶ 20, quoting Anderson, at ¶ 33. The trial court, while properly noting these definitions in its decision, declined to apply them to the facts of the case.
{20} After reviewing the record, we find that the undisputed evidence in the record does not support appellees’ claim that Lusk acted willfully or wantonly. The cruiser video footage shows that Lusk had his emergency lights activated and that he was driving at speeds up to 60 miles per hour as he approached the intersection where the accident occurred. At the time of the accident, it was dark, cold, and potentially icy. Testimony also established that Lusk slowed to approximately 35 miles per hour as he approached the intersection, which was a 35 mile per hour zone. Even assuming that Lusk did not operate the siren on his vehicle, as appellees suggest, and that he should have slowed the cruiser more when entering the intersection, appellees failed to establish issues of fact indicating the total absence of care of a known risk required before the operation of an automobile is considered “willful” or “wanton.” See Lipscomb v. Lewis, 85 Ohio App.3d 97, 102 (12th Dist.1993). Lusk was not statutorily required to sound the siren, “however desirable such
{21} Because genuine issues of material fact do not exist on the issue of whether Lusk‘s actions constituted “willful or wanton misconduct,” the City is entitled to judgment as a matter of law under
Lusk‘s Motion for Summary Judgment
{22} The second issue is whether the trial court erred in denying Lusk‘s motion for summary judgment. Because Lusk moved for summary judgment on the basis of
{23} Recklessness is “‘a perverse disregard of a known risk.‘” A.J.R. v. Lute, 163 Ohio St.3d 172, 2020-Ohio-5168, ¶ 17, quoting O‘Toole, 2008-Ohio-2574 at paragraph three of the syllabus. “Reckless conduct is characterized by the conscious disregard of or indifference to a known or obvious risk of harm to another that is unreasonable under the circumstances and is substantially greater than negligent conduct.” (Emphasis added.) Anderson at ¶ 34. In order to find that Lusk was reckless, we must determine that he was “conscious that [his] conduct [would] in all probability result in injury.” A.J.R., 2020-Ohio-5168 at 23, quoting O‘Toole, 2008-Ohio-2574 at paragraph three of the syllabus. “In other words, for [his] conduct to have been reckless,” Lusk “must have been more than negligent
{24} As established above, a close examination of the facts reveals that Lusk‘s conduct, while potentially negligent, did not rise to the level of “recklessness.” Pressler, 2017-Ohio-1408 at ¶ 12 (“Demonstrating either ‘wantonness’ or ‘recklessness’ is subject to a high standard.“). Lusk had his lights activated and slowed his vehicle to within the speed limit as he approached the intersection. While it might have been more prudent for him to slow down more, perversity, not prudence, is the measure by which recklessness is determined. A.J.R. at ¶ 17, quoting O‘Toole at paragraph three of the syllabus. Lusk‘s conduct does not demonstrate a perverse disregard of a known risk. O‘Toole at ¶ 3. ”
Conclusion
{25} “[A]lthough the determination of wantonness or recklessness is typically within the province of the jury, summary judgment is appropriate in instances where the individuals’ conduct does not demonstrate a disposition to perversity.” Estate of Smith, 2015-Ohio-154 at ¶ 58. In the case sub judice, appellees failed to present evidence that Lusk acted in a “wanton” or “reckless” manner. Appellants are entitled to immunity from tort liability under both
{26} Finding that appellants are entitled to judgment as a matter of law, we hereby
{27} Judgment reversed and judgment entered on behalf of appellants.
M. POWELL, P.J., and S. POWELL, J., concur.