Hewitt v. ColumbusHewitt v. Columbus
Rendered on September 1, 2009
Lamkin, Van Eman, Trimble, Beals & Dougherty, LLC, and David A. Beals, for appellant.
Richard C. Pfeiffer, Jr., City Attorney, and Bradley Hummel, for appellees.
APPEAL from the Franklin County Court of Common Pleas.
FRENCH, P.J.
{¶1} Plaintiff-appellant, Michael Hewitt (“Hewitt“), appeals the Franklin County Court of Common Pleas’ entry of summary judgment in favor of defendants-appellees, City of Columbus, Division of Police, and Columbus Police Officer Matthew R. Baughman (“Officer Baughman“) (collectively, “defendants“), on Hewitt‘s claims arising
{¶2} On December 17, 2005, at approximately 9:20 p.m., Officer Baughman was operating a police cruiser northbound on South High Street in Columbus when he collided with a vehicle driven by Hewitt, who was attempting to execute a left turn from the driveway of the Rainbow Lanes Bowling Alley onto southbound South High Street. Hewitt initiated this action for injuries he sustained in the collision by filing a complaint in the Franklin County Court of Common Pleas on January 31, 2007. Defendants filed an answer, denying liability, and, on September 12, 2008, they moved for summary judgment, asserting that they are entitled to political subdivision immunity, as codified in
{¶3} Hewitt filed a timely notice of appeal from the trial court‘s entry of summary judgment, and he now asserts the following three assignments of error:
FIRST ASSIGNMENT OF ERROR
The trial court erred in granting summary judgment when the record presents factual issues as to whether Office[r] Baughman was responding to an “emergency call[.“]
SECOND ASSIGNMENT OF ERROR
The trial court erred in granting summary judgment when the record presents factual issues as to whether Officer Baughman‘s actions in traveling in excess of the legal speed limit without sirens or flashers constituted willful or wanton misconduct.
The trial court erred in granting summary judgment in favor of Officer Baughman when the record presents factual issues as to whether his actions in traveling in excess of the legal speed limit without sirens or flashers constituted willful, wanton, or reckless misconduct.
{¶4} We review a summary judgment de novo. Koos v. Cent. Ohio Cellular, Inc. (1994), 94 Ohio App.3d 579, 588, citing Brown v. Scioto Cty. Bd. of Commrs. (1993), 87 Ohio App.3d 704, 711. When an appellate court reviews a trial court‘s disposition of a summary judgment motion, it applies the same standard as the trial court and conducts an independent review, without deference to the trial court‘s determination. Maust v. Bank One Columbus, N.A. (1992), 83 Ohio App.3d 103, 107; Brown at 711. We must affirm the trial court‘s judgment if any grounds the movant raised in the trial court support it. Coventry Twp. v. Ecker (1995), 101 Ohio App.3d 38, 41-42.
{¶5} Pursuant to
{¶6} “[T]he moving party bears the initial responsibility of informing the trial court of the basis for the motion, and identifying those portions of the record before the trial court which demonstrate the absence of a genuine issue of fact on a material element of the nonmoving party‘s claim.” Dresher v. Burt, 75 Ohio St.3d 280, 292, 1996-Ohio-107. Once the moving party meets its initial burden, the non-movant must set forth specific facts demonstrating a genuine issue for trial. Id. at 293. Because summary judgment is a procedural device to terminate litigation, courts should award it cautiously after resolving all doubts in favor of the non-moving party. Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 358-59, 1992-Ohio-95, quoting Norris v. Ohio Std. Oil Co. (1982), 70 Ohio St.2d 1, 2.
{¶7} Hewitt‘s overarching contention in this appeal is that the trial court erred in determining that defendants are entitled to immunity from Hewitt‘s tort claims under
{¶8} The only exception to immunity under
{¶9} Hewitt‘s first and second assignments of error take issue with the trial court‘s determination that
{¶10} Hewitt first maintains that a genuine issue of material fact exists as to whether Officer Baughman was responding to an emergency call at the time of the collision.
{¶11} The Supreme Court of Ohio addressed the meaning of “emergency call” under
R.C. 2744.01(A) states that “emergency call” means “a call to duty.” (Emphasis added.) “Duty” is defined as “obligatory tasks, conduct, service, or functions enjoined by order or usage according to rank, occupation, or profession.” Webster‘s Third New International Dictionary (1986) 705. Thus, a “call to duty” involves a situation to which a response by a peace officer is required by the officer‘s professional obligation.
{¶12} Hewitt contends that reasonable minds, viewing the evidence in his favor, could conclude that Officer Baughman was not responding to an emergency call because he did not report to the dispatcher that he was responding to a call for assistance and because police protocol did not authorize activation of overhead lights or sirens in response to such call. We disagree with Hewitt‘s contention and conclude that neither of those facts creates a genuine issue as to whether Officer Baughman was responding to an emergency call.
{¶13} On the evening of December 17, 2005, Officer Baughman was on patrol in precinct 13 when he heard, over the police radio, a request for assistance by Officer Sean Noltemayer, who was pursuing a vehicle that fled from an attempted traffic stop. Officer Baughman asked for Officer Noltemayer‘s location so that he could assist with the apprehension of the fleeing motorist. Officer Noltemayer understood Officer Baughman‘s request for his location as an indication that Officer Baughman was coming to assist him. Officer Baughman stated that, in responding to Officer Noltemayer‘s request, he was operating “pursuant to Police Division Patrol S.O.P. Code 10-57, Request for Assistance (Back-up),” and Officer Noltemayer confirmed that statement. Officer Baughman stated that a Code 10-57 required him to respond immediately and
{¶14} According to Kimberly Jacobs, the Division of Police Training Bureau Commander, the Patrol Standard Operating Procedure for a Code 10-57 requires that the nearest available officer respond immediately and directly. Jacobs stated that, although categorized as a priority two call, a Code 10-57 is considered an emergency call. A Code 10-57 does not require a responding officer to observe the speed limit, but does not permit the officer to activate overhead lights or sirens. Officers are trained to remain off the radio or to make minimal contact when responding to a Code 10-57 so that the officer involved can continue to air evolving information about the subject, location, and circumstances.
{¶15} Officer Baughman and Commander Jacobs’ statements that a Code 10-57 is an emergency call, requiring immediate and direct response, is unrebutted. Additionally, the fact that Officer Baughman did not expressly report to the dispatcher that he was responding is irrelevant to the characterization of the Code 10-57 as an emergency call. Moreover, even if that fact were relevant, it would not create a genuine issue of fact as to whether Officer Baughman was responding to an emergency call. Upon hearing Officer Noltemayer‘s request for assistance, Officer Baughman asked the dispatcher for Officer Noltemayer‘s location, from which Officer Noltemayer understood that Officer Baughman was en route to assist him. Officer Baughman‘s limitation of his radio response was consistent with police instructions that officers minimize radio contact when responding to another officer‘s request to assist with an evolving situation
{¶16} Lastly, the fact that police protocol prohibits activation of overhead lights and sirens in response to a Code 10-57 and categorizes a Code 10-57 as a priority two call does not create a question of fact as to whether Officer Baughman was responding to an emergency call. This court has previously stated that ”
{¶17} Based on the unrebutted affidavit testimony, we conclude that, in responding to the Code 10-57 initiated by Officer Noltemayer, Officer Baughman was involved in a situation to which his professional obligation required a response and that Officer Baughman was responding to an “emergency call” at the time of the collision. Accordingly, we overrule Hewitt‘s first assignment of error.
{¶18} Because immunity under
{¶19} “The term ‘willful and wanton misconduct’ connotes behavior demonstrating a deliberate or reckless disregard for the safety of others.” Moore at 708. This court has defined willful misconduct to mean conduct involving ” ‘the intent, purpose, or design to injure.’ ” Robertson v. Dept. of Public Safety, 10th Dist. No. 06AP-1064, 2007-Ohio-5080, ¶14, quoting Byrd v. Kirby, 10th Dist. No. 04AP-451, 2005-Ohio-1261. “Wanton misconduct is the failure to exercise any care toward one to whom a duty of care is owed under circumstances in which there is a great probability that harm will result and the tortfeasor knows of that probability.” Robertson at ¶18, citing Hunter v. Columbus (2000), 139 Ohio App.3d 962, 969. “A wanton act is an act done in reckless disregard of the rights of others, which reflects a reckless indifference on the consequences to the life, limb, health, reputation, or property of others.” Byrd at ¶23, citing State v. Earlenbaugh (1985), 18 Ohio St.3d 19, 21. ” ‘[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 conduct will in all probability result in injury.” Fabrey v. McDonald Village Police Dept., 70 Ohio St.3d 351, 356, 1994-Ohio-368, quoting Roszman v. Sammett (1971), 26 Ohio St.2d 94, 96-97.
{¶20} Hewitt argues that the evidence before the trial court reveals a genuine issue of material fact as to whether Officer Baughman‘s operation of his police cruiser
{¶21} In Thompson, a police officer struck a pedestrian with his police cruiser while responding to a dispatch relating to a possible fight. As here, the officer had not activated the cruiser‘s overhead lights or siren. Although there was some dispute about the officer‘s speed at the time of the collision, it was undisputed that the officer was traveling in excess of the speed limit. In that case, the trial court denied the defendants’ motion for summary judgment, based on
* * * [U]ncontroverted evidence shows that the incident occurred around midnight on a well-lit street, Ms. Thompson failed to use a pedestrian crossing while crossing the street, and Officer Smith did not utilize his emergency lights or sirens en route to a dispatched call. However, conflicting evidence exists as to the speed of Officer Smith‘s vehicle before it struck Ms. Thompson. While the road had a posted speed limit of 35 m.p.h., Officer Smith testified he was traveling between 35 to 45 m.p.h. The State Highway Patrol‘s investigation of the incident, however, indicated a speed of at least 38 m.p.h. and probably within a range of 59 m.p.h. to 66 m.p.h.
Furthermore, the record includes an affidavit by plaintiff‘s expert, Officer Glenn McHenry, who opined that Officer Smith willfully and wantonly operated his vehicle by traveling at an excessive speed without using his emergency equipment.
The court concluded that “the speed at which Officer Smith travelled, coupled with the lack of the use of the emergency lights and sirens, creates a genuine issue of material fact as to whether his conduct was ‘willful’ or ‘wanton’ while responding to an emergency call.” Id. at ¶46. Of course, as a decision of the Eleventh District Court of Appeals, Thompson is not controlling authority for this court. See State v. Dovangpraseuth, 10th Dist. No. 05AP-88, 2006-Ohio-1533, ¶36 (stating that another appellate district‘s decisions, reported or not, are not controlling authority in this district).
{¶22} While Hewitt urges this court to follow the Thompson court‘s analysis, defendants point to this court‘s treatment of an analogous situation in VanDyke. VanDyke, a civilian, was injured when he turned his vehicle from a side street onto West Broad Street in Columbus and was struck by a police cruiser operated by Officer Michael Shannon. At the time, Officer Shannon was responding to a call for assistance
* * * The city concedes that Officer Shannon was responding at a speed in excess of the speed limit at night without lights and sirens. Broad Street was described in this section as a well-lit six-lane roadway with sparse traffic at the hour. Officer Shannon was proceeding with the right-of-way, and appellant faced a stop sign and concommitment obligation to yield. Given the wide, broad, and well-lit roadway described in the record, flat approaches on either side of the intersection, and the fact that Officer Shannon was proceeding with headlights, appellant was not deprived of the opportunity to yield even if Officer Shannon was proceeding at a speed in excess of the posted limit and without lights or sirens. * * * Appellant‘s own deposition describes his view in all directions as unobstructed by traffic or other features. Given the state of the evidence before the trial court, we cannot say that the trial court erred in concluding that there remain no genuine issue of material fact on the question of whether Officer Shannon was proceeding in response to an emergency call, but was not proceeding in a manner arising to willful or wanton misconduct, and that the city was entitled to immunity pursuant to R.C. 2744 as a matter of law. * * *
Thus, on facts nearly identical to those here, this court concluded that the record did not demonstrate a genuine issue of material fact as to whether the officer‘s conduct amounted to willful or wanton misconduct. Upon review, we discern no basis for distinguishing VanDyke or for reaching a different conclusion here.
{¶23} First, the record is devoid of evidence from which reasonable minds could conclude that Officer Baughman acted with the intent, purpose or design to injure. Accordingly, Officer Baughman did not act willfully, and we consider only whether his operation of the police cruiser amounted to wanton misconduct.
{¶25} It is undisputed that Officer Baughman was responding to a Code 10-57 call at the time of the collision. A Code 10-57 requires an immediate and direct response, but does not permit an officer‘s use of a siren or overhead lights. A Code 10-57 does not require observation of the speed limit, but it does not supersede an officer‘s obligation to give due regard for the safety of other lawful users of the roadway. Thus,
{¶26} Officer Baughman stated that there was neither enough time nor distance to avoid a collision by braking when Hewitt pulled into the roadway to execute his turn. Officer Baughman nevertheless attempted to avoid the collision or minimize its impact by swerving to the left and accelerating, a maneuver he learned during driver training at the Police Academy. Yvonne Jordan, a Basic Training Officer employed by the Division of Police, confirmed that officers are trained to avoid an imminent right-angle collision or to minimize its impact by swerving and accelerating.
{¶27} Defendants met their burden of identifying those portions of the record that demonstrate the absence of a genuine issue of material fact as to whether Officer Baughman‘s operation of his cruiser amounted to willful or wanton misconduct. Therefore, to avoid entry of summary judgment, Hewitt was required to meet the reciprocal burden outlined in
{¶28} In response to defendants’ evidence, Hewitt submitted the expert affidavit of John Wiechel, Ph.D., a professional engineer qualified in accident reconstruction. Dr. Wiechel opined that Officer Baughman‘s cruiser was traveling at 67 m.p.h. at the time of the collision and was traveling at 63 m.p.h. before Officer Baughman accelerated. Dr. Wiechel also opined that the collision would not have occurred had Officer Baughman been traveling at the speed limit and that the collision would have been avoided or minimized had Officer Baughman braked and not swerved to the left. We conclude that
{¶29} Aside from Officer Baughman‘s attempt to evade or minimize the collision by accelerating and swerving, the facts of this case are, for all practical purposes, identical to those in VanDyke, in which we concluded that the officer did not act in a wanton manner. The fact that Officer Baughman was exceeding the speed limit without his overhead lights or siren activated does not rise to the level of wanton misconduct, especially where that conduct is expressly permitted or required by police department protocol. Officer Baughman was traveling with the right-of-way, and Hewitt, having seen Officer Baughman‘s approaching headlights, was not deprived of the opportunity to yield, even if Officer Baughman was proceeding at a speed in excess of the posted limit. Moreover, there is no dispute that, when he believed a collision was inevitable, Officer Baughman‘s actions complied with training he received as a Columbus police officer. That Officer Baughman‘s evasive actions did not, in this instance, prove successful does not create a genuine issue of material fact as to whether his conduct was wanton. Where Officer Baughman acted to avoid or minimize the impact of the collision, and did so in a manner consistent with his training as a police officer, we cannot conclude that those actions show a failure to exercise any care whatsoever or a reckless disregard of the rights of others. Nor do Officer Baughman‘s actions demonstrate a disposition to perversity. Accordingly, the trial court did not err in concluding that Officer Baughman‘s operation of his police cruiser did not rise to the
{¶30} Having overruled Hewitt‘s first two assignments of error, we conclude that the trial court properly concluded that the city of Columbus was entitled to immunity from Hewitt‘s claims, pursuant to
{¶31} Finally, we turn to Hewitt‘s third assignment of error, which relates to Officer Baughman‘s personal immunity under
{¶32} One acts recklessly ” ‘if he doesn‘t act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an
{¶33} Because we have already determined that Officer Baughman did not act in a wanton manner in our discussion of
{¶34} Without further reiterating the facts addressed in relation to Hewitt‘s second assignment of error, we conclude that Officer Baughman‘s conduct no more satisfies the “wanton or reckless” standard of
{¶35} For these reasons, and having overruled each of Hewitt‘s three assignments of error, we affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
KLATT and CONNOR, JJ., concur.