NICHOLAS G. HOFFMAN, et al. v. GALLIA COUNTY SHERIFF‘S OFFICE, et al.
Case No. 17CA2
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT GALLIA COUNTY
12-12-17
[Cite as Hoffman v. Gallia Cty. Sheriff‘s Office, 2017-Ohio-9192.]
CIVIL CASE FROM COMMON PLEAS COURT
APPEARANCES:
Mark Landes and Aaron M. Glasgow, Columbus, Ohio, for Appellants.
Jeffrey L. Finley, Gallipolis, Ohio, for Appellees.
DATE JOURNALIZED: 12-12-17
PER CURIAM.
{1} This is an appeal from a Gallia County Common Pleas Court decision that denied summary judgment to Gallia County Sheriff Joseph R. Browning, Gallia County Sheriff‘s Deputy Randall G. Johnson, the Gallia County Sheriff‘s Department, and the Gallia County Commissioners, defendants below and appellants herein.1 The trial court determined that genuine issues of material fact remain as to whether appellants are immune from liability under
FIRST ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED IN FINDING THAT A GENUINE ISSUE OF MATERIAL FACT EXISTS REGARDING WHETHER APPELLANT JOHNSON ACTED IN A ‘WANTON AND WILLFUL MANNER’ UNDER
R.C. 2744.02(B)(1)(a) .”
SECOND ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED IN FINDING THAT A GENUINE ISSUE OF MATERIAL FACT EXISTS REGARDING WHETHER APPELLANT JOHNSON ACTED WITH MALICIOUS PURPOSE, IN BAD FAITH OR IN A WANTON OR RECKLESS MANNER UNDER
R.C. 2744.03(A)(6)(b) .”
I
BACKGROUND
{2} This appeal arises out of a May 29, 2010 automobile collision involving Gallia County Sheriff‘s Deputy Randall Johnson and Ohio State Highway Patrol Trooper Nicholas G. Hoffman. Before the accident occurred, both Deputy Johnson and Trooper Hoffman were responding to a call for help from Ohio State Highway Patrol Trooper Keith Fellure. Trooper Fellure indicated that he had located a vehicle involved in a “rolling domestic” on Left Fork Road and requested assistance with the three individuals found with the vehicle.
{3} While Deputy Johnson and Trooper Hoffman were en route to assist Trooper Fellure, both reached speeds over 100 miles per hour. Trooper Hoffman‘s vehicle was in front of Deputy Johnson‘s vehicle, but at some point, Deputy Johnson lost sight of Trooper Hoffman‘s vehicle. As Deputy Johnson topped a hill and rounded a slight curve, he saw Trooper
{4} Appellees subsequently filed a complaint and alleged that Deputy Johnson negligently, willfully, wantonly, and recklessly caused appellees’ injuries. Appellants denied liability and additionally claimed that they are statutorily immune from liability under
A
SUMMARY JUDGMENT MOTIONS
{5} Both parties filed summary judgment motions. Appellees asserted that no genuine issues of material fact remain concerning appellants’ liability for appellees’ injuries and regarding appellants’ statutory immunity. Appellees alleged that based upon the evidence in the record, reasonable minds could only conclude that Deputy Johnson operated his vehicle in a willful, wanton, and reckless manner when he responded to Trooper Fellure‘s call for assistance. Appellees claimed that Deputy Johnson‘s conduct was willful, wanton, and reckless for the following reasons: (1) he was traveling between 101-106 mph on a two-lane roadway with a 55 mph speed limit; (2) his speed was grossly excessive given the road contours; (3) he did not slow down as he approached the intersection of Jackson Pike and Left Fork Road; (3) he did not know the location of Left Fork Road; (4) he did not have sufficient training regarding high-speed emergency vehicle handling; (5) he drove left-of-center; (6) he did not exhibit due regard for
{6} Appellants also asserted that no genuine issues of material fact remain as to whether they are statutorily immune from liability under
B
SUMMARY JUDGMENT EVIDENCE
{7} The parties primarily relied upon the deposition testimony to support their summary judgment motions. Appellants additionally presented a copy of the sheriff‘s emergency-run policy.
1
Sheriff‘s Emergency-run Policy
{8} The policy states: “During emergency runs, employees must always give due regard to all other vehicles using the roadways. * * * * [T]he law does not relieve the vehicle operator from the duty to drive with due regard for the safety of all persons and property upon the highway.”3 The policy further provides that “[e]mployees’ driving actions must be very cautious-slowing at all intersections and sometimes even stopping.”
2
Deputy Johnson
{9} Deputy Johnson stated that before the accident occurred, he heard a dispatch regarding a motor-vehicle-domestic-violence situation. The dispatch indicated that the suspect vehicle was traveling towards Jackson Pike. Deputy Johnson headed westbound on Jackson Pike, behind an Ohio State Highway Patrol cruiser. Deputy Johnson related that he and the patrol
{10} As Deputy Johnson topped the hill and rounded a “little” curve, he saw Trooper Hoffman‘s vehicle backing up in Deputy Johnson‘s lane of travel and trying to turn left onto Left Fork Road. Deputy Johnson hit the brakes and tried to swerve to avoid Trooper Hoffman‘s vehicle, but was unable to do so. Deputy Johnson was unaware of how fast he was traveling, but in his written statement made shortly after the accident, he estimated that as he topped the hill, he was going approximately 70 mph. At the time of his deposition three years later, he could not state how fast he was going.
{11} Deputy Johnson stated that he is familiar with Jackson Pike, the road upon which the accident occurred. He indicated that he drives by the accident scene every day when he
{12} Deputy Johnson explained that he became employed as a part-time sheriff after he completed the Ohio Police Officers Training Academy (OPOTA) in 2007. Deputy Johnson stated that part of training including a driving course and that although the driving course did not cover high-speed maneuvering, it did include braking, maneuvering, and high-speed driving. He indicated that every few months, he returns to OPOTA for training classes.
{13} Deputy Johnson stated that at the time of the accident, he did not know whether the sheriff‘s office had a written policy regarding emergency-response calls. He explained that he was trained to use lights and sirens during an emergency run and to travel with “regards to safety.” Deputy Johnson denied that he was disciplined as a result of the accident. He stated that the sheriff did, however, place “a letter * * * in [his] file about taking a driving course.”
3
Trooper Hoffman
{14} Trooper Hoffman stated that on the date of the accident, he received a dispatch regarding a “rolling domestic.” Trooper Hoffman explained that a “rolling domestic” involves a domestic violence situation in which the individuals are traveling in moving vehicles.
{15} Trooper Hoffman related that he located the suspect vehicle and attempted to stop the vehicle, but the vehicle failed to yield. Trooper Hoffman thus initiated a pursuit. He
{16} Trooper Hoffman stated that he did not activate his lights and sirens, but he did exceed the speed limit so as to not “wast[e] time.” Trooper Hoffman estimated that he traveled between 80-85 mph during the three-and-one-half mile stretch to Left Fork Road. He does not believe that he acted recklessly or wantonly by exceeding the speed limit. Trooper Hoffman explained that while en route to Left Fork Road, he did not encounter much traffic and he did not need to pass any vehicles. Moreover, Trooper Hoffman stated that although “[t]here is a slight bend to the road,” he would not “call it a curve.”
{17} Trooper Hoffman explained that he was unaware Deputy Johnson had followed him until he noticed Deputy Johnson‘s vehicle in the rear-view mirror. Trooper Hoffman stated that he noticed Deputy Johnson‘s vehicle just before he started backing up to turn left onto Left Fork Road. Trooper Hoffman believed Johnson was around “a quarter mile or better behind [him].” Hoffman explained that Deputy Johnson “was far enough behind [him], [that he] knew [he] had a safe amount of time to make [the] turn.”
{18} Trooper Hoffman related that he underwent a six-month training course at the Ohio State Patrol Academy, with approximately two weeks dedicated to driver-training skills, such as defensive driving skills, maneuverability skills, high-speed-precision maneuverability,
{19} Trooper Hoffman explained that the standard applicable to law enforcement officers conducting emergency runs is “due regard for safety of the other motorists around you.” He agreed that some emergency runs necessitate exceeding the posted speed limit.
4
Henry Lipian
{20} Appellees’ expert witness, Henry Lipian, testified that he conducted an accident reconstruction primarily to determine the speed of Deputy Johnson‘s vehicle at the time of the accident. Lipian explained that his analysis showed that Deputy Johnson‘s vehicle was traveling between 101 and 106 miles per hour at the point where visible tire marks appeared on the road and between 66 and 74 miles per hour at the point of impact. Lipian stated that the reconstruction indicates that Deputy Johnson “was swerving to the left while at the same time engaging in a hard braking event.”
{21} Lipian further opined that Johnson‘s conduct was reckless. Lipian stated, “the speed in and of itself, to me, is a recklessly high speed.” He explained how he reached his conclusion: “One of the things I kind of apply is even on my most liberal analysis, if I were to stop somebody, when I was still a policeman, for a speed that I‘m looking at, would I consider giving them a warning? No. You‘re not getting a warning for going 100 miles an hour in a 55
{22} In his written report, Lipian stated that “[t]he nature of the emergency call did not justify [Deputy Johnson‘s] heedless disregard for the safety of the motoring public.” Lipian indicated that Deputy Johnson did not possess “the requisite training either in classroom or on-the-road training, and as a part-time officer he did not have the overall experience to operate a patrol car at such high speeds as would a more highly trained officer.” Lipian ultimately concluded that Deputy Johnson “displayed a flagrantly reckless lapse of due care. There was no justification for the high speed he was operating at, especially upon the approach to the intersection and coming up behind Trooper Hoffman. His speed was unsafe, unreasonable and completely unjustified.”
5
Sergeant Fred Cook
{23} OSHP Sergeant Fred Cook testified that he conducted an accident reconstruction. His analysis indicated that Deputy Johnson was traveling between 89 and 97 miles per hour when he started to skid and 65 to 72 miles per hour at the time of impact. Sergeant Cook stated that he also examined the power train control module from Trooper Hoffman‘s vehicle. It indicated
6
Trooper Fellure
{24} Trooper Fellure testified that on the date of the accident, he tracked the suspect vehicle to Left Fork Road. He radioed in the information and drove down Left Fork Road. When Trooper Fellure encountered the vehicle, it was sitting in a ditch and three individuals were standing outside of the vehicle. He ordered them to the ground, but “[t]hat wasn‘t going to happen.” Trooper Fellure explained that the individuals “started running right at [him],” and he used his shoulder microphone to call for help. He does not recall the precise words he used to call for help, or if his “voice was amped up on the radio where [other officers] could tell, hey, we‘ve go to get there or not, you know.” Trooper Fellure also could not recall whether he used a code, such as “87,” which means he needs backup, or “88,” which means “officer in trouble.”
C
TRIAL COURT‘S DECISION
{25} On January 20, 2017, the trial court overruled the parties’ summary judgment motions. The court determined that genuine issues of material fact remain regarding whether Deputy Johnson operated his vehicle in a willful, wanton, or reckless manner. This appeal followed.
ASSIGNMENTS OF ERROR
{26} Appellants’ two assignments of error challenge the propriety of the trial court‘s decision to deny their summary judgment motion. Appellants contend that the trial court incorrectly determined that genuine issues of material fact remain concerning whether they are entitled to statutory immunity under
A
STANDARD OF REVIEW
{27} We initially note that appellate courts conduct a de novo review of a trial court‘s summary judgment decision. E.g., Argabrite v. Neer, 149 Ohio St.3d 349, 2016-Ohio-8374, 75 N.E.3d 161, at ¶ 14 (stating that “court reviews a grant of summary judgment de novo“); Bohlen v. Anadarko E & P Onshore, L.L.C., 150 Ohio St.3d 197, 2017-Ohio-4025, 80 N.E.3d 468, at ¶ 10; Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Accordingly, an appellate court must independently review the record to determine if summary judgment is appropriate and need not defer to the trial court‘s decision. Argabrite at ¶ 14 (explaining that de novo review means court “will consider the evidence as if for the first time-using the standard set out in
B
SUMMARY JUDGMENT STANDARD
{28}
* * * * Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from the evidence or stipulation, and only from the evidence or stipulation, that 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, that party being entitled to have the evidence or stipulation construed most strongly in the party‘s favor.
{29} Thus, pursuant to
{30} The purpose of
{31} Under
{32} “[U]nless a movant meets its initial burden of establishing that the nonmovant has either a complete lack of evidence or has an insufficient showing of evidence to establish the existence of an essential element of its case upon which the nonmovant will have the burden of proof at trial, a trial court shall not grant a summary judgment.” Pennsylvania Lumbermens Ins. Corp. v. Landmark Elec., Inc., 110 Ohio App.3d 732, 742, 675 N.E.2d 65 (2nd Dist.1996). Once the moving party satisfies its burden, the nonmoving party bears a corresponding duty to set forth specific facts to show that a genuine issue exists.
{33} In the case at bar, we believe that appellants satisfied their initial burden to illustrate the absence of a genuine issue of material fact regarding their statutory immunity under
R.C. CHAPTER 2744
{34}
{35} In the case at bar, the parties agree that
(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. The following are full defenses to that liability:
(a) A member of a municipal corporation police department or any other police agency was operating a motor vehicle while responding to an emergency
{36} The three-tier analysis does not apply to the individual employees of political subdivisions. Rankin v. Cuyahoga Cty. Dept. of Children & Family Servs., 118 Ohio St.3d 392, 2008-Ohio-2567, 889 N.E.2d 521, at ¶ 36; Cramer at ¶ 17. Instead,
1
Question of Law
{38} Whether a political subdivision or its employee may invoke statutory immunity under
{39} The standard for showing that a political subdivision employee acted with malicious purpose, in bad faith, or in willful, wanton, or reckless manner is “rigorous” and “will in most circumstances be difficult to establish, especially with respect to a law-enforcement officer carrying out the statutory duty to arrest and detain a person violating the law.” Argabrite at ¶ 8 (citation omitted); accord Caudill v. Columbus, 10th Dist. Franklin No. 17AP-129, 2017-Ohio-7617, 2017 WL 4074583, at ¶¶ 23-24. Consequently, summary judgment usually is appropriate if the employee‘s conduct does not, as a matter of law, rise to the level of
{¶ 40} Furthermore, when reviewing the evidence in cases involving law enforcement officers, the Ohio Supreme Court has cautioned courts to “bear in mind that while many public employees face the potential for liability under
Not only does Ohio law require an officer to arrest and detain a person who is violating the law,
R.C. 2935.03(A)(1) , it also subjects that officer to potential criminal liability for negligently failing to do so,R.C. 2921.44(A)(2) .An officer‘s role in our society creates a unique lens through which to view his or her actions and through which to determine whether those actions may have been malicious, in bad faith, wanton or reckless. We expect law-enforcement officers to protect the public, but that expectation need not mean that an officer must sit idly by while a suspect flees the scene of a crime, particularly when the suspect‘s flight itself endangers the general public further. The danger of a high-speed chase alone is not enough to present a genuine issue of material fact concerning whether an officer has acted with a malicious purpose, in bad faith or in a wanton or reckless manner. Shalkhauser v. Medina, 148 Ohio App.3d 41, 50-51, 772 N.E.2d 129 (9th Dist.2002).
{¶ 41} The Ohio Supreme Court has thus set forth an “onerous” standard to establish that a law enforcement officer is not entitled to immunity. Argabrite at ¶ 31 (stating that “the burden necessary to deny immunity to [law enforcement] officers is onerous“). In the case sub judice, the parties do not seriously dispute that the political-subdivision-appellants and Deputy Johnson are entitled to a presumption of immunity. Appellees have conceded that Deputy Johnson was responding to an emergency call within the meaning of
2
Willful, Wanton, and Reckless Defined
{¶ 42} ““[W]illful,’ ‘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, 983 N.E.2d 266, 2012 WL 6198607, ¶ 31.
{¶ 43} “Willful misconduct implies an intentional deviation from a clear duty or from a
either the doing of an act with specific intent to injure [another], or, with full knowledge of existing conditions, the intentional execution of a wrongful course of conduct which he knows should not be carried out or the intentional failure to do something which he knows should be done in connection with his operation of the automobile, under circumstances tending to disclose that the motorist knows or should know that an injury to [another] will be the probable result of such conduct.
Id. at 527-28. Thus, “a mere error of judgment” ordinarily does not constitute willful misconduct. Id. at paragraph three of the syllabus.
{¶ 44} Wanton misconduct means “‘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.‘” Argabrite at ¶ 8, quoting Anderson at paragraph three of the syllabus; accord Hawkins v. Ivy, 50 Ohio St.2d 114, 363 N.E.2d 367 (1977), syllabus (“Where the driver of an automobile fails to exercise any care whatsoever toward those to whom he owes a duty of care, and his
{¶ 45} A court that is determining whether a defendant engaged in wanton misconduct thus essentially applies a two-part test. See Matkovich v. Penn Cent. Transportation Co., 69 Ohio St.2d 210, 212, 431 N.E.2d 652 (1982) (explaining that determining whether railroad-defendant in personal injury action engaged in wanton misconduct involves a two-part test); accord Thompson v. Smith, 178 Ohio App.3d 656, 2008-Ohio-5532, 899 N.E.2d 1040 (11th Dist.), ¶ 40 (applying Matkovich‘s two-part test in statutory immunity case). The first question is whether the defendant failed to exercise any care whatsoever toward those to whom he owes a duty of care. Matkovich at 212. This “requires that we determine the duty [the defendant] owed [to the plaintiff], and also the extent of care” that the defendant exercised. Id. The second question is whether the failure to exercise any care created a great probability that harm will result. Id. This requires courts to “consider the nature of the hazard created by the circumstances.” Id. Furthermore, we note that in general, a defendant‘s “minimal efforts to warn [are] sufficient to overcome the allegation of wanton misconduct.” Id., citing Pisel v. Baking Co., 61 Ohio St.2d 142, 399 N.E.2d 1243 (1980).
{¶ 46} “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
{¶ 47} All three standards-willful, wanton, and reckless-describe conduct that is more than mere negligence. Therefore, considering general negligence principles may be helpful when a court examines whether a political subdivision employee operated a motor vehicle willfully, wantonly, or recklessly so as to impose liability upon the political subdivision and its employee, individually, under
Negligence Distinguished
{¶ 48} In general, “negligence is defined as ‘[t]he failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation.‘” Cleveland Metro. Bar Assn. v. Berk, 132 Ohio St.3d 82, 2012-Ohio-2167, 969 N.E.2d 256, ¶ 12, quoting Black‘s Law Dictionary 1133 (9th Ed.2009). Negligence involves “the absence of reasonable care.” Id. “Negligence * * * * does not involve intent or a conscious purpose to do a wrongful act or to omit the performance of a duty.” Tighe, 149 Ohio St. at 525-26 (citation omitted). Instead, negligent conduct “conveys the idea of inadvertence as distinguished from premeditated or formed intention.” Id.
4
Factors
{¶ 49} Courts have identified several factors that may be relevant when determining if a law enforcement officer operated a motor vehicle willfully, wantonly, recklessly, or simply negligently. The factors include the following: (1) the officer‘s speed; (2) whether the officer was traveling in the correct lane of travel; (3) whether the officer had the right-of-way; (4) the time of day; (5) the weather; (6) the officer‘s familiarity with the road; (7) the road contour and terrain; (8) whether traffic was light or heavy; (9) whether the officer made invasive maneuvers (i.e., attempting to force the vehicle from the road) or evasive maneuvers (i.e., attempting to avoid a collision); (10) the nature and seriousness of the offense that prompted the emergency; (11) whether the officer possessed a safer alternative; (12) whether the officer admitted to disregarding the consequences of his actions; (13) whether the officer activated the vehicle‘s
{¶ 50} Most recently, the Ohio Supreme Court in Argabrite8 indicated that neither a high-speed police pursuit nor a violation of departmental policy equates to per se recklessness or demonstrates the existence of “a genuine issue of material fact concerning whether an officer has acted with a malicious purpose, in bad faith or in a wanton or reckless manner.” Id. at ¶ 16 and 21. In Argabrite, the plaintiff, an innocent third-party, sustained injuries following a high-speed police chase that ended in a motor vehicle collision. The plaintiff subsequently filed a complaint against the law enforcement officers involved in the high-speed pursuit. The plaintiff asserted
{¶ 51} On appeal to the Ohio Supreme Court, the court rejected the no-proximate-cause rule and instead determined that
{¶ 52} The court recognized that the evidence indicated that one of the officers violated
{¶ 53} The court additionally observed that the pursuing officers followed the suspect during light traffic and sunny weather conditions and that they had activated their overhead lights and sirens throughout the pursuit. Furthermore, the evidence showed that the officers’ rate of speed varied from 45 to 80 miles per hour in zones with speed limits ranging from 25 to 55 miles per hour. Argabrite I at ¶ 23. The court concluded that the foregoing evidence failed to support any finding that the officers engaged in wanton or reckless conduct. Argabrite II at ¶ 30. The court thus determined that the officers were statutorily immune from liability under
{¶ 54} In Gates v. Leonbruno, 70 N.E.3d 1110, 2016-Ohio-5627 (8th Dist.), the court determined that the trial court erred by concluding that genuine issues of material fact remained regarding whether a law enforcement officer wantonly or recklessly pursued a vehicle for a traffic violation. In Gates, the officer observed the subject vehicle traveling at least 82 miles per hour along a highway with a speed limit of 60 miles per hour. The officer started following the vehicle. During the ensuing pursuit, both the officer and the subject reached speeds over 100
{¶ 55} The court of appeals reversed the trial court‘s decision and determined that no reasonable factfinder could conclude that the officer operated his vehicle in a wanton and reckless manner. Id. at ¶ 41. In reaching its decision, the court did not consider any particular aspect of the officer‘s conduct in isolation, but instead, looked at the totality of the circumstances. Id. at ¶ 40-42. The court concluded that the following circumstances showed that the officer‘s conduct was not wanton or reckless: (1) during the pursuit, the officer activated his lights and sirens; (2) the traffic was light and the road was well-lit; (3) the pursuit lasted less than two minutes; and (4) the officer did not follow the subject vehicle too closely but remained 800 to 1000 feet behind it “for all but the last few seconds.” Id. at ¶ 43.
{¶ 56} The court thus disagreed with the trial court‘s conclusion that the officer‘s decision to pursue the vehicle late at night, through two jurisdictions, at a high rate-of-speed, and in purported violation of departmental policy created genuine issues of material fact as to whether the officer wantonly or recklessly operated his motor vehicle. Id. at ¶ 41. While the court found the high rate-of-speed “concerning,” it declined to adopt a bright-line rule that a law enforcement officer who travels at a high rate of speed engages in wanton or reckless behavior. Id. at ¶ 45-46.
{¶ 57} In Smith v. McBride, 10th Dist. Franklin No. 09AP-571, 2010-Ohio-1222, 2010 WL 1138977, aff‘d, 130 Ohio St.3d 51, 2011-Ohio-4674, 955 N.E.2d 954, the appellate court affirmed the trial court‘s decision entering summary judgment in favor of a political subdivision and its law enforcement officer.10 The plaintiff alleged that the officer willfully, wantonly, and recklessly operated his motor vehicle when responding to an emergency call by driving at excessive speeds at night and by failing to use evasive maneuvers. The plaintiff additionally asserted that the officer‘s speed caused him to have a reduced reaction time and that he had an obstructed view of the intersection where the collision occurred. The court of appeals concluded that the following circumstances failed to create a genuine issue of material fact as to whether the officer willfully, wantonly, or recklessly operated his cruiser: (1) the officer was responding to an emergency call; (2) the accident occurred on a “flat stretch of road” that consisted of seven lanes; (3) traffic conditions were light; (4) there was no evidence of adverse weather conditions; (5) it was night-time; (6) the officer was traveling between 55 and 58 mph in a 45 mph zone; (7) the officer did not activate his lights and sirens, but his headlights were illuminated; (8) the officer had the right-of-way; and (9) the officer removed his foot from the accelerator when he noticed a car turning in front of him. Id. at ¶ 30-31 and ¶ 35. The court additionally noted that the record did not contain any evidence that the plaintiff “was deprived of an opportunity to yield” to the officer‘s vehicle. Id. at ¶ 30.
{¶ 58} In Adams v. Ward, 7th Dist. Mahoning No. 09MA25, 2010-Ohio-4851, the court affirmed the trial court‘s decision entering summary judgment in favor of the political
{¶ 59} In Bricker v. State Farm Ins., 11th Dist. Lake No. 2009-L-087, 2010-Ohio-3047, the court reversed the trial court‘s decision that denied a political subdivision and its law enforcement officer summary judgment. The appellate court determined that the trial court incorrectly concluded that genuine issues of material fact remained as to whether the officer‘s conduct was willful, wanton, or reckless. In Bricker, the officer‘s patrol car collided with an innocent third-party‘s vehicle as the officer was responding to a call of an intruder located in a home. While the officer was en route to the home, traffic was light and the pavement was wet. The officer activated the patrol car‘s lights and siren. As the officer approached an intersection with a red light, he decelerated his car and visually inspected the intersection to look for cross-traffic or pedestrians. The officer did not notice any vehicles approaching. Once in the intersection, he saw the plaintiff‘s vehicle and fully braked, but was unable to avoid a collision. The data recorder from the officer‘s car indicated that five seconds before the accident, the officer was traveling approximately 65 miles per hour. Between seconds five and four, the officer removed his foot from the accelerator and slowed to 62 miles per hour. He continued slowing, and at the time of impact, he was traveling approximately 19 miles per hour.
{¶ 60} The court of appeals observed that the officer presented evidence showing that “(1) he employed both his lights and siren as he approached the intersection; (2) he was traveling in his proper lane of travel; (3) he had ‘cleared’ the intersection sufficiently to establish he could enter the intersection; and (4) he began to brake as he approached, slowing considerably over a
{¶ 61} In Byrd v. Kirby, 10th Dist. Franklin No. 04AP-451, 2005-Ohio-1261, the court affirmed the trial court‘s decision that entered summary judgment in favor of a political subdivision and its law enforcement officer. In Byrd, the plaintiffs alleged that the officer willfully, wantonly, and recklessly drove his police cruiser through a red light at a high rate of speed and crashed into the plaintiffs’ vehicle. Id. at ¶ 4. Before the collision, the officer and his partner were on routine patrol when they received an “officer in trouble” call over the radio. Id. at ¶ 11. The officer activated the cruiser‘s lights and sirens and drove towards the officer in trouble. Id. As the cruiser approached a red light at an intersection, the officer slowed to ensure opposing traffic stopped and yielded to his lights and siren. Id. The officer was traveling 40 to 46 miles per hour as he entered the intersection. Id. The plaintiffs’ “vehicle suddenly appeared traveling westbound across [the officer]‘s path.” Id. The officer “braked hard,” but was unable to avoid hitting the plaintiffs’ vehicle. Id. At the time of the accident, the weather was clear, the road was dry, and traffic was light. Id. After the accident, the driver
{¶ 62} The appellate court concluded that the evidence failed to create a genuine issue of material fact as to whether the officer acted willfully, wantonly, or recklessly. The court noted that none of the evidence indicated that the officer acted with intent or purpose so as to constitute willfulness. Id. at ¶ 22. The appellate court determined that the evidence shows that the officer exercised at least some degree of care and hence did not act wantonly. Id. at ¶ 25-26. The court observed that the officer exercised some care by activating his lights and sirens, looking for cross-traffic, and slowing the vehicle while approaching the red light at the intersection. Id. at ¶ 26. The court additionally concluded that the officer‘s conduct was not reckless. Id. at ¶ 28. The court explained:
Police runs in response to emergencies inevitably entail some degree of risk both to the responding officer and affected traffic. Nonetheless, Ohio law provides that vehicles on such emergency runs may, with lights activated and with due regard for the safety of others, exceed the posted speed limit (
R.C. 4511.24 ) and proceed through red lights or stop signals (R.C. 4511.03 ). Because the law and current police and emergency practice clearly contemplate the necessity in some circumstances of such emergency runs, a responding officer does not create an ‘unreasonable’ risk of harm by engaging in an emergency run merely because such a response creates a greater risk than would be incurred by traveling at normal speed and in compliance with opposing traffic signals. The question of unreasonable risks must be weighed in terms of what is acceptable in the context of an emergency run, not ordinary driving conditions; * * *
Id.
{¶ 63} The court thus determined that no reasonable factfinder could conclude that the officer was reckless. Id. at ¶ 29. The court therefore concluded that the plaintiffs failed to establish the existence of a genuine issue of material fact concerning the political subdivision‘s
{¶ 64} In Elsass v. Crockett, 9th Dist. Summit No. 22282, 2005-Ohio-2142, 2005 WL 1026700, the court of appeals affirmed the trial court‘s decision that determined no genuine issues of material fact remained as to whether a law enforcement officer willfully, wantonly, or recklessly operated his motor vehicle. In Elsass, the injured driver was attempting to make a u-turn in the middle of a four-lane roadway when the officer‘s police cruiser crashed into it. The plaintiffs alleged that the officer acted recklessly by failing to activate the cruiser‘s lights and siren, by failing to illuminate his headlights, by violating departmental policy, and by speeding. They further claimed that the officer acted recklessly because he lacked sufficient training and experience in operating a police car without supervision.
{¶ 65} The appellate court determined that the plaintiffs did not establish the existence of a genuine issue of material fact as to whether the officer acted recklessly. The court noted that the record did not contain any evidence to show that the officer failed to illuminate his headlights. The court also determined that even if the officer violated departmental policy, any violation does not equate with a finding of recklessness. The court explained:
The facts presented demonstrate that [the officer] was on an emergency call, where someone had been stabbed and the suspect was still in the area, so that time was of the essence. [The officer] was exceeding the speed limit and not using his siren or overhead lights in violation of statute and police department guidelines, but he was doing so in the good faith belief that his actions were necessary and that he had discretion to proceed in such a manner. [The officer] used his headlights and attempted to pass [the plaintiff‘s] vehicle in the appropriate lane. While [the officer‘s] actions may have risen to the level of negligence, there was nothing to indicate that a reasonable person would have believed that such conduct created an unnecessary risk of physical harm under the circumstances.
Id. at ¶ 33.
{¶ 67} The court further determined that the evidence failed to show that the officer acted willfully or wantonly, so as to impose liability upon the political subdivision. In determining that the officer did not act wantonly, the court found that the record did not contain any evidence to show that the officer knew that failing to activate his lights and siren and exceeding the posted speed limit presented a great probability of harm to the plaintiff. Id. at ¶ 42. The court cited the following circumstances to support its conclusion: (1) the traffic “was very limited” around the time of the accident; (2) the area was well-lit; (3) the weather was clear; (4) the officer was not driving at a “very high rate of speed,” but instead, was driving around 45 miles per hour; (5) “[t]ime was of the essence in responding to an emergency where someone had been stabbed and the suspect was still in the area“; (6) the officer was driving in the passing lane of the street; and (7) the accident occurred when the driver made a u-turn into the officer‘s path. Id.
{¶ 68} For similar reasons, the court additionally determined that the officer did not act willfully. The court explained: “in consideration of the limited traffic and clear visibility at the time, as well as a driver‘s reasonable expectation to be able to drive in a passing lane unimpeded by curb-lane traffic making u-turns, there is no evidence to indicate that [the officer] could reasonably know or appreciate any likelihood of the resulting injury.” Id. at ¶ 43. The court
{¶ 69} In Shalkhauser v. Medina, 148 Ohio App.3d 41, 2002-Ohio-222, 772 N.E.2d 129 (9th Dist.), the court determined that the political subdivision and the officer were immune from liability. In that case, the officer decided to initiate a traffic stop after he observed a vehicle swerve left of the centerline and learned that the registered owner of the vehicle had an outstanding arrest warrant. After the driver of the vehicle failed to stop, the officer activated his lights and siren and pursued the vehicle. The pursuit continued for approximately eleven minutes, at speeds in excess of 85 miles per hour. The subject vehicle subsequently crashed into the plaintiff‘s vehicle.
{¶ 70} The plaintiff asserted that the officer willfully, wantonly, and recklessly operated his vehicle. The plaintiff argued that the officer should not have initiated the pursuit due to the inherent danger police pursuits present to the public. The plaintiff contended that the officer failed to balance the seriousness of the offense for which he began the pursuit against the danger to the public. Id. at ¶ 38.
{¶ 71} The court disagreed with the plaintiff and determined that the officer did not act recklessly. Id. at ¶ 40. The court observed that the officer did not contest that pursuing the vehicle endangered the public and he also did not contest that he was aware of the general danger throughout the pursuit. The court determined, however, that “the fact that danger inheres in high-speed chases alone is not sufficient to present a genuine issue of fact concerning whether [the officer] acted with malicious purpose, in bad faith, or in a wanton or reckless manner.” Id.
{¶ 72} The appellate court additionally concluded that the evidence failed to suggest that the officer operated his vehicle in a willful or wanton manner and referred to the following
{¶ 73} The court also recognized that the plaintiff‘s experts testified that the officer violated departmental policy, that the officer failed to exercise any care for the public during the pursuit, and that the officer engaged in wanton, reckless, extreme, and outrageous conduct. Id. at ¶ 41. The court concluded, however, that the experts’ opinions did not create any factual issues, but instead, merely stated legal conclusions. Id.. The court thus determined that reasonable minds could only conclude that the officer did not act with malicious purpose, in bad faith, or in a wanton or reckless manner. Id. at ¶ 42. The court therefore concluded that the political subdivision and the officer were entitled to immunity.
{¶ 74} In contrast to the foregoing cases, in Hardesty v. Alcantara, 48 N.E.3d 127, 2015-Ohio-4591 (8th Dist.), the court determined that a reasonable factfinder could conclude that a law enforcement officer acted wantonly or recklessly. In Hardesty, the officer decided to stop a vehicle after observing what he believed to be a drug transaction occurring between a person standing outside the vehicle and its occupants, and after learning that the license plate of the vehicle was registered to an individual with an outstanding felony warrant for domestic violence. The court determined that the following facts created genuine issues of material fact as to
{¶ 75} In Thompson v. Smith, 178 Ohio App.3d 656, 2008-Ohio-5532, 899 N.E.2d 1040 (11th Dist.), the court determined that genuine issues of material fact remained as to whether the officer willfully, wantonly, or recklessly operated his police cruiser. In Thompson, the officer struck and killed a pedestrian as she attempted to cross the street. The evidence indicated that before the accident, the officer most likely had been traveling anywhere between 59 and 66 miles per hour on a roadway with a posted speed limit of 35 miles per hour. Additionally, the officer had not activated his lights and sirens. The appellate court determined that the officer‘s speed, combined with his failure to activate his lights and sirens, created a genuine issue of material fact as to whether he acted willfully, wantonly, or recklessly. Id. at ¶ 46 and ¶ 67.
{¶ 76} In Wagner v. Heavlin, 136 Ohio App.3d 719, 737 N.E.2d 989 (7th Dist. 2000), the court found that genuine issues of material fact remained as to whether the officer‘s conduct was willful, wanton, or reckless. In Wagner, the officer ran over and killed the driver of a motorcycle he had been pursuing. The officer and the political subdivision asserted that the following facts established that the officer did not operate his vehicle in a willful or wanton manner: (1) the officer maintained a distance of six to twelve car-lengths between his vehicle and the pursued vehicle; (2) the officer activated the vehicle‘s lights and siren; (3) the officer used his
Application
{77} In the case at bar, appellants argue that the evidence does not allow reasonable minds to conclude that Deputy Johnson willfully, wantonly, or recklessly operated his motor vehicle. Appellant assert that the following collection of facts fail to demonstrate willful, wanton, or reckless conduct: (1) Deputy Johnson was traveling in his own lane of travel; (2) Trooper Hoffman‘s vehicle unpredictably and unforeseeably backed up in Deputy Johnson‘s lane of travel and blocked Deputy Johnson‘s lane of travel; (3) the weather was clear and dry; (4) traffic was light; (5) Deputy Johnson activated his lights and sirens; (6) the section of the road where the accident occurred did not contain a traffic control device for traffic traveling on
{78} Appellees contend that the following circumstances create genuine issues of material fact as to whether Deputy Johnson willfully, wantonly, and recklessly operated his vehicle: (1) he was traveling over 100 miles per hour; (2) he did not know how fast he was driving; (3) he drove left of the center line; (4) the roadway contained a hill and a curve, which limited Deputy Johnson‘s visibility of potential traffic in front of him; (5) he was driving over 100 miles per hour while approaching an intersection; (6) he did not know the location of Left Fork Road; (7) he did not have adequate training and experience to be able to control a vehicle traveling over 100 miles per hour; (8) he received a reprimand following the accident; and (9) he did not drive with due regard to the safety of other vehicles traveling upon the roadway.
{79} As we explain below, we do not believe that reasonable minds could conclude that Deputy Johnson willfully, wantonly, or recklessly operated his motor vehicle. Appellees have not satisfied the “rigorous” requirement to show that Deputy Johnson acted willfully, wantonly, or recklessly. Argabrite at ¶8. Thus, they failed to meet their “onerous” burden to establish that the political subdivision and Deputy Johnson are not immune from liability. Id. at ¶31.
{80} In the case sub judice, we believe that the evidence fails to lead to any reasonable conclusion or inference that Deputy Johnson intentionally deviated from a clear duty or from a definite rule of conduct, that he possessed a deliberate purpose not to discharge some duty necessary to safety, or that he purposefully performed a wrongful act with knowledge or appreciation of the likelihood of resulting injury. Anderson at ¶32.
{81} We first note that appellees have not set forth a clear duty or definite rule of conduct from which Johnson deviated. Appellees presented evidence showing that a law enforcement officer has a duty to operate his motor vehicle with due regard for safety. The standard of “due regard for safety” does not clearly or definitively define a precise duty or conduct, however. Rather, it appears to be a flexible concept so that an officer possesses discretion in determining how to respond to calls for help. Indeed, the deposition testimony establishes that law enforcement officers are afforded discretion to determine how to respond to emergency calls. Trooper Fellure explained that the standard means that emergency responders are “not going to go a hundred miles an hour through a red light,” but he further stated that there are “no set rule[s].” Additionally, Trooper Hoffman stated that law enforcement officers have discretion when determining how to respond to an emergency situation. Trooper Hoffman stated that “there‘s no way that they can make a hard [and] fast rule that this is what you‘re going to do.” Gallia County Sheriff Joseph R. Browning likewise stated that officers have discretion when determining how to respond to an emergency call.
{82} Furthermore, even though Deputy Johnson intentionally deviated from the speed limit, law enforcement officers are permitted to exceed the speed limit.
{83} For similar reasons, the evidence does not suggest that Deputy Johnson possessed a deliberate purpose not to discharge some duty necessary to safety or that he purposefully did a wrongful act. While obeying the speed limit may be a duty necessary to safety for the ordinary motorist, law enforcement officers are permitted to exceed the speed limit.
{84} Consequently, reasonable minds could only conclude that Deputy Johnson did not operate the vehicle in a willful manner.
Wanton
{85} We likewise do not believe that the evidence leads to any reasonable conclusion that Deputy Johnson acted wantonly. The evidence, construed most strongly in appellees’ favor, shows the following: (1) at the time of the accident, the weather was cloudy and dry, traffic was light, and it was daylight; (2) the accident occurred on Jackson Pike, on a rural section of the road; (3) driveways and other roadways lined Jackson Pike; (3) Deputy Johnson was familiar with the road upon which the accident occurred but was not entirely certain where the turn for Left Fork Road was located; (3) approximately 1100 feet from the crash site, the road was elevated with a slight curve; (4) once he topped the hill, Deputy Johnson had 1100 feet of visibility to the crash site; (5) Deputy Johnson traveled between 100 and 106 miles per hour while en route to Trooper Fellure‘s location on a roadway with a posted speed limit of 55 miles per hour; (6) Deputy Johnson activated his vehicle‘s lights and sirens; (7) Deputy Johnson was traveling in his own lane when he noticed Trooper Hoffman‘s vehicle backing up in his lane of travel; (8) Deputy Johnson braked and swerved to the left of the center line in an attempt to avoid a collision; (9) Deputy Johnson was traveling between 65 and 74 miles per hour at the time of
{86} The foregoing facts do not suggest a complete absence of care. Deputy Johnson exercised some care by activating his lights and sirens when he responded to Trooper Fellure‘s call for help, by applying his brakes when he noticed Trooper Hoffman‘s vehicle blocking Deputy Johnson‘s lane of travel, and by swerving in an attempt to avoid a collision. See Argabrite at ¶29 (noting that officer activated lights and sirens); Gates at ¶43 (same); Smith at ¶30 (observing that officer removed foot from accelerator prior to impact); Adams at ¶39 (recognizing that officer activated lights and sirens); Bricker at ¶48 (pointing out that officer activated lights and sirens and braked in attempt to avoid collision); Byrd at ¶26 (same); Shalkhauser at ¶29 (noting that officer activated lights and sirens). While Deputy Johnson may have been traveling at a high rate of speed, he stated that he did not believe he was traveling too fast for the road conditions and that he was familiar with the road—including the slight curve or bend and the hill. See Adams at ¶29 (observing that officer stated he was familiar with road). Deputy Johnson‘s testimony therefore implies that he gave at least some conscious thought to his speed while he was driving, that he did not believe he was driving in an unsafe manner, and that he did not exhibit an entire absence of care. We also note that recently the Ohio Supreme Court
{87} Additionally, Deputy Johnson was not following Trooper Hoffman‘s vehicle too closely. Instead, the evidence plainly shows that Deputy Johnson lost sight of Trooper Hoffman‘s vehicle and that he had approximately 1100 feet of distance between his vehicle and Trooper Hoffman‘s vehicle when he crested the hill shortly before the accident. See Gates at ¶43 (pointing out that officer did not follow vehicle too closely); Shalkhauser at ¶29 (same).
{88} Furthermore, the evidence does not indicate Deputy Johnson knew that driving over 100 miles per hour presented a great probability of harm under the circumstances. At the time of the accident, it was still daylight, the roadway was clear, traffic was light, and the weather was dry. See Argabrite; Gates; Smith; Adams; Bricker; Byrd; Elsass; Shalkhauser. Deputy Johnson stated that he did not believe he was traveling too fast for the road conditions and that he was familiar with the road on which the accident occurred. Deputy Johnson may not have known the exact location where he needed to turn onto Left Fork Road, but he stated that he had a general idea of where the road was located. Deputy Johnson had not been following Trooper Hoffman too closely. Deputy Johnson had no reason to know that Trooper Hoffman‘s vehicle would be backing up in Deputy Johnson‘s lane of travel. Furthermore, even if Deputy Johnson has not undergone the same training as Trooper Hoffman, the record does not contain any evidence that Deputy Johnson was so inadequately trained that he knew he would be unable to control his motor vehicle at a speed over 100 miles per hour. See Jackson v. Poland Tp., 7th Dist. Mahoning Nos. 96CA261, 97CA13, and 98CA105, 1999-Ohio-998, 1999 WL 783959, *7 (holding that an officer‘s lack of experience of training “does not bear any relevance to the
{89} We recognize appellees’ argument that Deputy Johnson‘s statement that he did not know how fast he was traveling shows that he did not exercise any care. We do not believe, however, that Deputy Johnson‘s failure to look at his speedometer to determine his speed shows an absence of care. Even though Deputy Johnson may not know the precise speed at which he was traveling, he explained that he did not believe he was traveling too fast given the road conditions and circumstances. Under the circumstances present in the case at bar, we cannot equate a failure to look at the speedometer with a failure to exercise any care. Consequently, we do not believe that reasonable minds could conclude that Deputy Johnson acted wantonly when responding to Trooper Fellure‘s call for help.
Reckless
{90} Additionally, the evidence does not allow reasonable minds to conclude that Deputy Johnson was reckless. Assuming, arguendo, that Johnson consciously disregarded a known risk of harm to another, we cannot conclude that the risk of harm was unreasonable under the circumstances and substantially greater than negligent conduct. Admittedly, Deputy Johnson‘s speed posed a risk of harm to others. The risk of harm, however, was not unreasonable under the circumstances. Deputy Johnson exceeded the speed limit because he believed a fellow officer needed assistance with multiple individuals who had been involved in a domestic violence situation. We are unable to conclude that an officer who exceeds the speed
{91} Additionally, even if Deputy Johnson violated departmental policy, a violation of departmental policy does not equate to per se recklessness. Id. at ¶21. Instead, the officer must be conscious that violating departmental policy will in all probability result in injury. Id. “Without evidence of that knowledge, evidence of a policy violation demonstrates negligence, at best.” Id. As we have already explained, the evidence does not show that Deputy Johnson knew that exceeding the speed limit would in all probability result in injury. While perhaps Deputy Johnson was or should have been aware that his conduct might result in harm, proving that he recklessly disregarded a known or obvious risk of harm to another requires appellees to show more than a mere possibility of injury. See O‘Toole, 118 Ohio St.3d at 74 (stating that “[r]ecklessness * * * requires something more than mere negligence).
{92} Moreover, we do not agree with appellees that Deputy Johnson‘s training and experience was so inadequate that his decision to drive over 100 miles per hour created an unreasonable risk of harm. Even if Deputy Johnson did not complete the same driving courses as Trooper Hoffman, nothing in the record shows that the training and he experience he did receive was inadequate. The undisputed evidence shows that he completed his training at the police training academy and worked under supervision after he graduated. Additionally, although appellees claim that Deputy Johnson lacks sufficient experience as a law enforcement
{93} While we recognize that appellees’ expert opined that Deputy Johnson acted recklessly, the expert‘s opinion constitutes a legal conclusion and is insufficient to create a genuine issue of material fact. See Shalkhauser at ¶41. We further note that the expert based his standard of recklessness as applied to an ordinary motorist, not as applied to a law enforcement officer responding to an emergency call. See Baum, 72 Ohio St.3d at 471. The expert explained the basis for his opinion as follows: “One of the things I kind of apply is even on my most liberal analysis, if I were to stop somebody, when I was still a policeman, for a speed that I‘m looking at, would I consider giving them a warning? No. You‘re not getting a warning for going 100 miles an hour in a 55 zone approaching an intersection.” Moreover, while the expert indicates that Deputy Hoffman was approaching “an intersection,” the record does not contain any evidence that the intersection with Left Fork Road contained a traffic control device that required traffic traveling on Jackson Pike, as Deputy Johnson was, to stop. See
{95} In the case at bar, just as in Argabrite and Gates, the evidence shows that Deputy Johnson traveled at a high rate-of-speed, but also like the officers in Argabrite and Gates, he did so during daylight or well-lit conditions, when traffic was light, and with his lights and sirens
{96} Finally, we note that law enforcement officers encounter unknown—and sometimes extremely grave—risks throughout their service to the community. Deputy Johnson believed a fellow law enforcement officer was in need of assistance. Given the uncertainty and potential for volatility law enforcement officers face, we do not find that under the circumstances present in this particular case that Deputy Johnson‘s decision to exceed the speed limit in order to assist a fellow officer to be unreasonable.
{97} Accordingly, based upon the foregoing reasons, we sustain appellant‘s first and second assignments of error and reverse the trial court‘s judgment.13
JUDGMENT REVERSED.
It is ordered that the judgment be reversed and that appellants recover of appellees the 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 Gallia County Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Abele, J., McFarland, J. & Hoover, J.: Concur in Judgment & Opinion
For the Court
BY: __________________________
Peter B. Abele, Judge
BY: __________________________
Matthew W. McFarland, Judge
BY: __________________________
Marie Hoover, Judge
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.