558 N.E.2d 79 | Ohio Ct. App. | 1988
Plaintiffs-appellants Douglas Horton and Walter Reid (hereinafter collectively referred to in the singular as "Horton") appeal from a summary judgment entered in favor of defendants-appellees city of Dayton and Steven Abney (hereinafter collectively referred to in the singular as "Dayton"). Summary judgment was entered in favor of Dayton based upon the conclusion that Dayton's police officer was operating a motor vehicle while responding to an emergency call at the time of his collision with Horton so that, in the absence of willful or wanton misconduct, Dayton was immune from liability pursuant to R.C.
Horton claims that the trial court applied an incorrect standard in *69
deciding Dayton's motion for summary judgment; that Dayton's police officer could not be found to have been engaged in an emergency call for purposes of determining immunity pursuant to R.C.
We conclude that since the term "emergency call" is a defined term in R.C. Chapter 2744, any definition of a similar term or even the same term for purposes of Dayton's police regulations may not override the definition in the statute for statutory immunity purposes. We further conclude that the stricter definition of what constitutes an "emergency run" contained in Dayton's police regulations does not constitute a knowing and intelligent waiver of Dayton's statutory immunity from suit. However, we conclude that the evidentiary material presented by Horton in opposition to Dayton's motion for summary judgment, when viewed in a light most favorable to Horton, is sufficient to create a genuine issue of fact as to whether Dayton's police officer was on an emergency call at the time of the collision, even as the term "emergency call" is defined in R.C.
While Horton has alleged that Dayton's police officer was negligent in the operation of its vehicle, Horton has never claimed that Dayton's police officer's conduct was willful or wanton.
Upon Dayton's motion for summary judgment, the trial court determined that there was no genuine issue of material fact, and that it was clear, as a matter of law, that Dayton's police officer was on an emergency call at the time of the collision. Accordingly, the trial court granted summary judgment in Dayton's favor. From that judgment, Horton appeals.
"The trial court erred to the prejudice of the plaintiffs-appellants in not applying the correct standard with regard to determination of defendants-appellees' motion for summary judgment."
Essentially, Horton contends that the trial court failed to view the evidentiary material submitted in opposition to Dayton's motion for summary judgment in a light most favorable to Horton, as required by Civ. R. 56.
On its face, the judgment entry finds that there is no genuine issue of material fact, and that Dayton is entitled *70 to judgment as a matter of law because its police officer was responding to an emergency call at the time of the accident.
In the absence of clear indications to the contrary, a trial court is presumed, on appeal, to have correctly followed the law. 5 Ohio Jurisprudence 3d (1978) 109, Appellate Review, Section 552. Accordingly, we must presume, in the absence of any clear indication to the contrary, that the trial court applied the correct standard in deciding Dayton's motion for summary judgment.
In any event, a summary judgment can only be granted as a matter of law. A court reviewing a summary judgment on appeal is obliged to determine, for itself, whether the evidentiary material submitted in support of, and in opposition to, the motion for summary judgment creates a genuine issue of material fact — that is, whether when that evidentiary material is viewed in a light most favorable to the party opposing the motion for summary judgment, reasonable minds can come to only one conclusion, and that conclusion is that summary judgment should be granted as a matter of law. Williams v. First United Church ofChrist (1974),
"The trial court erred to the prejudice of the plaintiffs-appellants in granting summary judgment to defendants-appellees based upon R.C.
Horton contends that since Dayton, in Dayton Police Department General Order
R.C.
Thus, R.C.
There is nothing in the statutory definition of "emergency call" to include the requirement that the police officer operate his siren and overhead lights in order to be on an emergency call for purposes of the statutory immunity provided by R.C.
Horton contends, however, that Dayton, by the adoption of Police Department General Order
R.C. Chapter 2744 confers immunity from civil tort liability upon all political subdivisions, including charter cities, with certain exceptions. The exception in question depends upon the definition of "emergency call" as that term is used in the provision creating the exception, and that term is defined in R.C.
Perhaps a charter city, or any other city for that matter, might have the inherent power to waive the immunity from tort liability provided in R.C. Chapter 2744. However, such a waiver, like any other waiver, would have to be knowingly and intelligently made. We have reviewed Dayton Police Department General Order
In a "Notice of Additional Authority" filed after the arguments in this case, Horton refers to Section 1 of the Dayton City Charter, which provides that:
"The inhabitants of the City of Dayton * * * shall be a body politic and *72 corporate by the name The City of Dayton, and as such shall have perpetual succession; may use a corporate seal; may sue and be sued * * *."
Presumably, Horton intends us to infer from this charter provision that the city of Dayton intended thereby to waive any immunity from suit to which it might otherwise be entitled. We decline to do so.
We infer from the referenced charter provision simply an intention to create a juridical entity, cognizable as a person in the courts. In this connection we note that the immunity from liability provided for in R.C.
Horton's Second Assignment of Error is overruled.
"The trial court erred to the prejudice of the plaintiffs-appellants in granting summary judgment to defendants-appellees because genuine issues of material fact existed as to whether Abney was on an emergency run or call at the time of the subject collision."
Horton contends that even if an "emergency call" must be deemed not to require the operation of the overhead lights and siren, he has still created a genuine issue of material fact as to whether Dayton's police officer was, in fact, responding to an emergency call at the time of the collision.
Dayton's police officer testified that he was responding to an emergency call, and there seems to be no doubt that there was a dispatch over the radio that would qualify as an emergency call. However, Horton argues that the absence of any reference to this dispatch on the officer's radio card for the day in question, when viewed in a light most favorable to Horton, would support an inference that the police officer was not responding to this emergency call at the time of the collision.
The radio card was an exhibit to the police officer's deposition which Horton submitted to the trial court in opposition to Dayton's motion for summary judgment. Although the police officer tendered an explanation for the absence of any reference to the dispatch on the radio card, the finder of fact would not have been required to accept that explanation.
Also, the fact that the police officer had not turned on his siren and overhead lights, while not sufficient to establish, as a matter of law, that he was not responding to an emergency call for purposes of the statutory immunity provided by R.C.
Horton also argues that the accident report filled out by Dayton's police officer and Dayton's disciplinary *73 action in reprimanding the police officer constituted evidence that the officer negligently caused the collision. We conclude that this evidence is immaterial. The issue is not whether Dayton's police officer negligently caused the collision; the issue is whether Dayton is immune from liability for the officer's negligence by virtue of the fact that he was responding to an emergency call at the time of the collision.
We conclude that the absence of any reference to the emergency call on the police officer's radio card on the day in question, and the fact that he was not using his siren and overhead light (especially in view of the clear expectation expressed in General Order
"The trial court erred to the prejudice of the plaintiffs-appellants in not granting partial summary judgment in their favor and against defendants-appellees for negligently failing to stop within the assured clear distance ahead."
Horton moved for partial summary judgment on the issue of the negligence of Dayton's police officer. Horton contends that the police officer's own deposition established, as a matter of law, that the police officer had failed to maintain an assured clear distance ahead, so that he was negligent as a matter of law.
Since we are reversing the summary judgment entered in favor of Dayton, and remanding this cause for further proceedings, we conclude that it is premature to determine whether Horton was entitled to a partial summary judgment in his favor.
Horton's Fourth Assignment of Error is overruled at this time, without prejudice.
Judgment reversed and cause remanded.
BROGAN and WILSON, JJ., concur.