Hale v. TothHale v. Toth
JUDGMENT: REVERSED AND REMANDED
RELEASED AND JOURNALIZED: August 24, 2023
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-20-936763
Appearances:
Jonathan E. Rosenbaum, for appellees.
Mazanec, Raskin, & Ryder Co., L.P.A., James A. Climer, Frank H. Scialdone, John D. Pinzone, and Edmond Z. Jaber, for appellants.
MARY J. BOYLE, J.:
{¶ 1} Defendants-appellants, John P. Toth (Officer Toth), Gregory Urbanski (Sgt. Urbanski), and the city of Westlake (Westlake) (collectively defendants), appeal the trial court‘s denial of the benefit of immunity from liability
I. Facts and Procedural History
{¶ 2} On February 23, 2019, Officer Toth, who is employed by the Westlake Police Department, was on duty and had finished with a call at the Promenade shopping center in Westlake. Officer Toth exited the Promenade, heading eastbound on Detroit Road. At that time, Officer Toth was driving a Chevy Tahoe outfitted as police cruiser, which was equipped with red and blue overhead, rear passenger, and driver side window emergency lights as well as a siren mounted to the left front grill area. As he approached the intersection of Detroit Road and Crocker Road, Officer Toth observed a vehicle directly in front of him and vehicles to his left. Officer Toth received a dispatch call while stopped at the red light at this
{¶ 3} Sgt. Urbanski of the Westlake Police Department investigated the accident and prepared the crash report. Officer Toth provided a written statement regarding the accident to Sgt. Urbanski the day after the accident occurred. Sgt. Urbanski submitted his report to Westlake‘s prosecutor, and Hale was issued a citation for failing to yield to a public safety vehicle. Hale pled no contest and was found guilty of the offense.
{¶ 4} In September 2020, Hale and her husband brought a six-count complaint for damages and a declaratory judgment against defendants.1 In Count 1, Hale alleges Officer Toth‘s actions were negligent, wanton, and reckless. Hale
{¶ 5} Following discovery, the defendants moved for summary judgment, arguing that they are entitled to immunity on all counts under
{¶ 6} In September 2022, the trial court issued separate judgment entries denying the defendants’ motion for judgment on the pleadings and their motion for summary judgment. In the entry denying summary judgment, the court found that when “construing the evidence in a light most favorable to the non-moving party, * * * genuine issues of material fact exist as [to] Plaintiffs’ claims.” (Judgment entry, Sept. 22, 2022.)2
{¶ 7} It is from these orders that the defendants appeal, raising the following two assignments of error for review:
Assignment of Error One: The trial court erroneously denied these defendants the benefit of immunity under Revised Code Chapter 2744 when it denied defendants’ motion for summary judgment.
Assignment of Error Two: The trial court erroneously denied these defendants the benefit of immunity when it denied defendants’ motion for judgment on the pleadings.
II. Law and Analysis
A. Final Appealable Orders and R.C. Chapter 2744
{¶ 8} As an initial matter, we must address whether we have jurisdiction to review the trial court‘s judgment denying the defendants’ motion for judgment on the pleadings and denying the defendants’ motion for summary judgment as it relates to Count 6 of Hale‘s complaint seeking a declaration that
{¶ 9} The
{¶ 10} Ordinarily, a trial court order is final and appealable only if it meets the requirements of
{¶ 11}
1. Motion for Judgment on the Pleadings
{¶ 12} Here, the defendants sought judgment on the pleadings on Counts 2 and 3 of Hale‘s complaint, premising their arguments on the intracorporate conspiracy doctrine and the statute of limitations. The trial court denied defendants’ motion, and defendants appealed. In Riscatti, the Ohio Supreme Court reviewed whether the denial of a public subdivision‘s motion for judgment on the pleadings based a statute-of-limitations defense under
{¶ 13} Here, because the errors alleged by defendants in their motion for judgment on the pleadings do not involve claims of immunity, this portion of the appeal cannot be addressed. Therefore, the second assignment of error is overruled.
2. Declaratory Judgment
{¶ 14} In Count 6 of her complaint, Hale seeks a declaratory judgment that
{¶ 15} We now turn to the defendants’ argument that the trial court erroneously denied them the benefit of immunity by denying their motion for summary judgment.
B. Motion for Summary Judgment
1. Standard of Review
{¶ 16} An appellate court reviews the grant or denial of summary judgment de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). In a de novo review, this court affords no deference to the trial court‘s decision and independently reviews the record to determine whether the denial of summary judgment is appropriate. Hollins v. Shaffer, 182 Ohio App.3d 282, 2009-Ohio-2136, 912 N.E.2d 637, ¶ 12 (8th Dist.).
{¶ 17} Summary judgment is appropriate if (1) no genuine issue of any material fact remains; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and construing the evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the party against whom the motion for summary judgment is made. Id., citing State ex rel. Cassels v. Dayton City School Dist. Bd. of Edn., 69 Ohio St.3d 217, 631 N.E.2d 150 (1994).
{¶ 18} The party moving for summary judgment bears the burden of demonstrating that no material issues of fact exist for trial. Dresher v. Burt, 75 OhioSt.3d 280, 292-293, 662 N.E.2d 264 (1996). If the moving party fails to meet this burden, summary judgment is not appropriate; if the moving party meets this burden, the nonmoving party must then point to evidence of specific facts in the record demonstrating the existence of a genuine issue of material fact for trial. Id. at 293.
2. R.C. Chapter 2744 — Political Subdivision Immunity
{¶ 19} ”
{¶ 20} In enacting
{¶ 21} In recognizing this purpose, the Ohio Supreme Court has also recognized that immunity determinations are vitally important to the parties’ interests and to judicial economy:
““‘[D]etermination of whether a political subdivision is immune from liability is usually pivotal to the ultimate outcome of a lawsuit. Early resolution of the issue of whether a political subdivision is immune from liability pursuant to
R.C. Chapter 2744 is beneficial to both of the parties. If the appellate court holds that the political subdivision is immune, the litigation can come to an early end, with the same outcome that otherwise would have been reached only after trial, resulting in a savings to all parties of costs and attorney fees. Alternatively, if the appellate court holds that immunity does not apply, that early finding will encourage the political subdivision to settle promptly with the victim rather than pursue a lengthy trial and appeals. Under either scenario, both the plaintiff and the political subdivision may save the time, effort, and expense of a trial and appeal, which could take years.‘” (Emphasis sic.) [Hubbell, 115 Ohio St.3d 77, 2007-Ohio-4839, 873 N.E.2d 878,] at ¶ 25, quoting Burger v. Cleveland Hts. (1999), 87 Ohio St.3d 188, 199-200, 1999-Ohio-319, 718 N.E.2d 912 (Lundberg Stratton, J., dissenting).”
Riscatti at ¶ 17, quoting Summerville at ¶ 39.
{¶ 22} The Ohio Supreme Court has delineated a three-tiered analysis in determining whether a political subdivision has immunity. Smith v. McBride, 130 Ohio St.3d 51, 2011-Ohio-4674, 955 N.E.2d 954, ¶ 13, citing Colbert v. Cleveland, 99 Ohio St.3d 215, 2003-Ohio-3319, 790 N.E.2d 781; Lambert v. Clancy, 125 Ohio St.3d 231, 2010-Ohio-1483, 927 N.E.2d 585. First, the party alleging immunity enjoys a general grant of immunity under
{¶ 23} Political-subdivision immunity, however, is not absolute. Cater v. Cleveland, 83 Ohio St.3d 24, 697 N.E.2d 610 (1998), citing
a. Westlake
{¶ 24} The parties agree that Westlake is a “political subdivision” under
i. R.C. 2744.02(B)(1) — Emergency Call and Willful and Wanton Conduct
{¶ 25}
{¶ 26} Hale argues that genuine issues of material fact exist as to whether there was an “emergency call” and whether Officer Toth‘s actions were “wanton and willful.” In support of her “emergency call” argument, Hale relies on Sgt. Urbanski‘s deposition where he stated that the call Officer Toth received from the dispatcher advised that the caller was in her car and the would-be perpetrator was in his car, and there was no ongoing assault at the time of the call. While Sgt. Urbanski acknowledged that there was no ongoing assault at the time of the call, a review of
{¶ 27}
{¶ 28} In the instant case, Officer Toth averred that he believed there was an imminent threat of injury or death to the female caller given the severity of the situation relayed to him. He was responding to a police dispatch of a potential assault as required by his professional obligation. In light of the foregoing, we find that Officer Toth was responding to an emergency call.
{¶ 29} Having found that Officer Toth was responding to an emergency call, we must next examine whether his conduct was willful or wanton to determine if the “emergency call” defense affords Westlake immunity. Hale argues Officer Toth engaged in “wanton or willful misconduct” by rapidly accelerating through an extremely busy intersection against a red light and while only “chirping” his siren under conditions when a siren would not be heard.
{¶ 30} In Anderson v. Massillon, 134 Ohio St.3d 380, 2012-Ohio-5711, 983 N.E.2d 266, the Ohio Supreme Court clarified the meaning of willful and wanton conduct:
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. Tighe v. Diamond, 149 Ohio St. at 527, 80 N.E.2d 122; see also Black‘s Law Dictionary 1630 (8th Ed.2004) (describing willful conduct as the voluntary or intentional violation or disregard of a known legal duty).
Wanton misconduct is the failure to exercise any care toward those to whom a duty of care is owed in circumstances in which there is great probability that harm will result. [Hawkins v. Ivy, 50 Ohio St.2d 114, 117-118, 363 N.E.2d 367 (1977)]; see also Black‘s Law Dictionary 1613-1614 (8th Ed.2004) (explaining that one acting in a wanton manner is aware of the risk of the conduct but is not trying to avoid it and is indifferent to whether harm results).
{¶ 31} Here, believing that the dispatch call demanded an immediate response, Officer Toth activated his overhead and rear passenger and driver side emergency lights and the “wail” siren mode while he was stopped at the red light. After the vehicle ahead of him moved to the right to allow him to pass him, he visually cleared the intersection of traffic before proceeding through it. This meant that he “looked in all directions and no vehicles were obstructing [his] view or coming towards [him] that would cause [him] to not proceed safely through the intersection.” (Toth depo., p. 12.) Officer Toth believed that all traffic had stopped and that he could proceed safely through the intersection. As he accelerated through the intersection, he continued to look for other traffic for the safety of other drivers and himself. He was struck by Hale when he was almost through the intersection.
{¶ 32} Hale testified that she was heading northbound on Crocker Road. She had just picked up her dog from the groomer‘s and was heading to her mother‘s house. Hale‘s car windows were up, and she was talking to her husband on her cellphone via her car‘s Bluetooth system before the accident. Hale did not hear the siren until she was already in the intersection, and “seconds later, the air bags blew up in [her] face so simultaneously.” (Hale depo., p. 54.) Hale further testified that
{¶ 33} Based on the foregoing, there is no evidence in the record demonstrating that Officer Toth intentionally deviated from a clear legal duty or acted purposefully with knowledge of the likelihood of resulting injury. Likewise, there is no evidence that Officer Toth failed to exercise any care toward those to whom a duty of care is owed. Rather, the evidence demonstrates that Officer Toth exercised care when responding to the dispatch call. He activated his overhead, rear passenger, and driver side emergency lights and siren while he was stopped at the red light. After visually clearing the intersection, he entered the intersection and accelerated at a rate of 6 m.p.h., reaching a maximum speed of approximately 30 m.p.h. at the point of impact. While Officer Toth accelerated his vehicle, reaching a maximum accelerator pedal percentage of 99 percent at 2.5 seconds prior to the crash until .05 seconds before the crash, the maximum rate of his speed was approximately 30 m.p.h., which is under the posted speed limit of 35 m.p.h.
{¶ 34} Therefore, we find that there are no genuine issues of material fact and
ii. R.C. 2744.02(B)(5) — Expressly Imposed Civil Liability
{¶ 35}
[c]ivil liability shall not be construed to exist under another section of the Revised Code merely because that section imposes a responsibility or mandatory duty upon a political subdivision, because that section provides for a criminal penalty, because of a general authorization in that section that a political subdivision may sue and be sued, or because that section uses the term “shall” in a provision pertaining to a political subdivision.
{¶ 36} Hale contends that
{¶ 37} However, the plain language of
{¶ 38} Based on the foregoing, we find that the evidence, when construed most favorably for Hale, does not raise any genuine issues of material fact that would defeat immunity for Westlake. Accordingly, we find that trial court erred by denying Westlake summary judgment on immunity grounds pursuant to
b. Officer Toth and Sgt. Urbanski
{¶ 39} Hale first contends that Officer Toth and Sgt. Urbanski are not entitled to immunity in their official capacities. We note that a complaint against an employee of a political subdivision in the employee‘s official capacity is an action against the entity itself and the employees are entitled to the same immunity due the political subdivision as set forth in
{¶ 40} For claims against employees acting in an individual capacity, the three-tiered analysis used to determine whether a political subdivision is immune is not used. Id. at ¶ 10, citing Cramer v. Auglaize Acres, 113 Ohio St.3d 266, 2007-Ohio-1946, 865 N.E.2d 9, ¶ 17. Instead,
{¶ 41} Thus, the degree of care in imposing liability for an employee of a political subdivision in his or her individual capacity is slightly different than the above-stated standard for the liability of a political subdivision. While a political subdivision has a full defense to liability when the conduct involved is not willful or wanton, the employee is immune if the conduct involved is not willful, wanton, or reckless. “By implication, an employee is immune from liability for negligent acts or omissions.” Anderson, 134 Ohio St.3d 380, 2012-Ohio-5711, 983 N.E.2d 266, at ¶ 23. In Anderson, the Ohio Supreme Court explained that 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. [Thompson v. McNeill, 53 Ohio St.3d 102, 104-105, 559 N.E.2d 705 (1990)], adopting 2 Restatement of the Law 2d, Torts, Section 500 at 587 (1965); see also Black‘s Law Dictionary 1298-1299 (8th Ed.2004) (explaining that reckless conduct is characterized by a substantial and unjustifiable risk of harm to others and a conscious disregard of or indifference to the risk, but the actor does not desire harm).
{¶ 42} With regard to Officer Toth, Hale argues he was reckless for rapidly accelerating though a red light at the busiest intersection in Westlake during the busiest time of day while only chirping his siren. A review of the record, however,
{¶ 43} Hale also argues that Officer Toth is not afforded immunity because he conspired with Sgt. Urbanski to avoid liability for his wanton, willful, and reckless conduct. There is no evidence in the record, however, indicating that Officer Toth conspired with Sgt. Urbanski with “malicious purpose, in bad faith, or in a wanton or reckless manner” to subject Hale to a traffic charge. Officer Toth averred that he provided a truthful statement regarding the accident in good faith and in furtherance of his duties and responsibilities as a Westlake police officer. Officer Toth did not discuss the contents of his statement with Sgt. Urbanski, nor was Sgt. Urbanski present when Officer Toth prepared his statement. Officer Toth further averred that he did not conspire with Sgt. Urbanski against Hale. As a result, there is no basis to deny Officer Toth of immunity in his individual capacity.
{¶ 44} With regard to Sgt. Urbanski, Hale argues that his conduct was wanton, willful, and reckless for conspiring with Officer Toth, creating a false police report, and concealing facts from his investigation. For the same reasons set forth
{¶ 45} Hale next argues Sgt. Urbanski is liable under
{¶ 46} Hale next alleges that Sgt. Urbanski violated
{¶ 47} Sgt. Urbanski cannot be held liable under
{¶ 48} Therefore, when construing the foregoing evidence in a light most favorable to Hale, we find nothing to suggest that Officer Toth‘s and Sgt. Urbanski‘s actions were malicious, wanton, reckless, or in bad faith. Consequently, we find that the trial court erred by denying Officer Toth and Sgt. Urbanski summary judgment under
{¶ 49} Having found that summary judgment is proper on Hale‘s claims, we likewise find that Hale‘s loss of consortium claim fails as a matter of law. Mota v. Gruszczynski, 197 Ohio App.3d 750, 2012-Ohio-275, 968 N.E.2d 631, ¶ 24 (8th Dist.), citing Bowen v. Kil-Kare, Inc., 63 Ohio St.3d 84, 585 N.E.2d 384 (1992) (if the underlying tort claim fails on the merits, so does the loss-of-consortium claim).
{¶ 50} Accordingly, the first assignment of error is sustained.
III. Conclusion
{¶ 51} Because the errors alleged by defendants in their motion for judgment on the pleadings do not involve claims of immunity, this portion of the interlocutory appeal is not a final appealable order and cannot be addressed. We likewise cannot address the trial court‘s denial of summary judgment as it relates to Count 6 of Hale‘s complaint seeking a declaratory judgment that
{¶ 52} Accordingly, the trial court‘s judgment denying defendants’ motion for summary judgment is reversed. The matter is remanded to the trial court with instructions to enter judgment in favor of the defendants based on the immunity provided in
It is ordered that appellants recover from appellees costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
MARY J. BOYLE, JUDGE
LISA B. FORBES, P.J., and EILEEN T. GALLAGHER, J., CONCUR