SANWR IBRAHIM v. CITY OF DAYTON, et al.
Appellate Case No. 27699
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
April 6, 2018
2018-Ohio-1318
TUCKER, J.
Trial Court Case No. 2016-CV-4178 (Civil Appeal from Common Pleas Court)
Rendered on the 6th day of April, 2018.
EDWARD C. YIM, Atty. Reg. No. 0067168, 130 West Second Street, Suite 2000, Dayton, Ohio 45402
Attorney for Plaintiff-Appellant
MARTIN W. GEHRES, Atty. Reg. No. 0096711, and JOHN C. MUSTO, Atty. Reg. No. 0071512, 101 West Third Street, P.O. Box 22, Dayton, Ohio 45402
Attorneys for Defendants-Appellees
I. Facts and Procedural History
{¶ 2} On August 20, 2014, Officer Evans was dispatched to a location in the vicinity of the Reibold Building at 117 South Main Street, Dayton, in response to a report of “a large crowd,” possibly armed, “yelling and shouting.” Decision, Order & Entry Sustaining Defs.’ Mot. for Summ. J. 1, July 19, 2017; Aff. of Walter Evans ¶ 3-6, Apr. 28, 2017.2 As Officer Evans drove past in his marked police vehicle, a man emerged from the Reibold Building and waved in the officer‘s direction. Id. at ¶ 7-8. Officer Evans interpreted the gesture to mean that the man, whom he took for a security guard, had information about the disturbance to which he was responding, so he “placed [his] vehicle in reverse [gear]
{¶ 3} By Officer Evans‘s account, the accident caused “very minor damage to [his] police [vehicle] and only minor damage to [Ibrahim]‘s vehicle.” Evans Aff. ¶ 12. Ibrahim herself has not testified, but in his deposition, Officer Evans testified that Ibrahim told him she was unharmed and indicated that she preferred to leave rather than wait for his supervisor to arrive and begin an accident investigation. Evans Dep. 56:15-57:8.
{¶ 4} On August 11, 2016, Ibrahim filed a complaint against the City of Dayton and Officer Evans, claiming that Officer Evans‘s “negligence” caused her “severe and permanent injuries“; “great pain and suffering, both physical and emotional“; “loss of ability to perform usual functions“; “future pain and suffering, both physical and emotional“; “future loss of ability to perform usual functions“; “reasonable and necessary medical expenses in an amount to be determined“; “future reasonable and necessary medical expenses in an amount to be determined“; “loss of wages and earnings in an amount to be determined“; “future loss of wages and earnings in an amount to be determined“; and “property damage in an amount to be determined.” Compl. ¶ 5 and 13. Appellees filed a motion for summary judgment on May 1, 2017, to which Ibrahim
{¶ 5} On July 19, 2017, the trial court issued its decision sustaining Appellees’ motion. Ibrahim timely filed her notice of appeal on August 17, 2017.
II. Analysis
{¶ 6} For her first assignment of error, Ibrahim argues that:
THE TRIAL COURT ERRED IN GRANTING THE APPELLEE‘S [sic] MOTION FOR SUMMARY JUDGMENT [by] FINDING THAT THERE WAS NO GENUINE ISSUE OF MATERIAL FACT AS TO WHETHER OR NOT OFFICER WALTERS [sic] WAS RESPONDING TO AN EMERGENCY CALL AT THE TIME OF THE ACCIDENT.
{¶ 7} Ibrahim grounds this argument on citations to the record purportedly demonstrating that “at the time of the collision[,] the disturbance [to which Officer Evans was dispatched] had dissipated, and he had reentered the traffic pattern and beg[u]n [a] routine patrol.” Appellant‘s Br. 14. Relying on these assumptions, Ibrahim requests that her case be remanded to the trial court for a redetermination of whether the disturbance ended before the accident happened. See id.
{¶ 8} Under
{¶ 9} Initially, the movant bears the burden of establishing the absence of any genuine issues of material fact. Mitseff v. Wheeler, 38 Ohio St.3d 112, 115, 526 N.E.2d 798 (1988). The movant may rely only on evidence of the kinds listed in
{¶ 10} Ibrahim‘s contention that Officer Evans was not responding to an emergency call at the time of the accident implicates the provisions of
{¶ 11} In attempting to demonstrate that Officer Evans was not responding to an “emergency call” as defined by
{¶ 12} Ibrahim has not shown that this case presents a genuine dispute of material fact on the question of whether, at the time the accident occurred, Officer Evans was responding to an emergency call. Officer Evans‘s affidavit and deposition testimony consistently indicate that the accident occurred almost simultaneously with his arrival at the scene of the disturbance, and Ibrahim has not provided any summary judgment evidence to the contrary. At the moment his police vehicle struck Ibrahim‘s vehicle, Officer Evans was, in fact, actively investigating the situation by attempting to make contact with a person whom he reasonably believed to have information about the disturbance. Although the record also suggests that the disturbance did not pose any inherent danger, an “emergency call” for purposes of
THE TRIAL COURT ERRED IN GRANTING THE CITY OF DAYTON IMMUNITY UNDER []R.C[.] * * * 2744.02(A).
{¶ 14} Ibrahim posits that because the evidence on record gives rise to a “genuine issue of material fact as to whether Officer Evans[‘s] [actions] constituted willful, wanton, or reckless conduct,” the trial court should not have held that the City of Dayton is entitled to immunity pursuant to
{¶ 15} Determining “whether a political subdivision is immune from tort liability pursuant to
{¶ 16} The terms “willful” and “wanton” delineate “distinct degrees of care and are not interchangeable.” Anderson v. City of Massillon, 134 Ohio St.3d 380, 2012-Ohio-11, 983 N.E.2d 266, ¶ 31. 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 a purpose to engage in “wrongful acts with knowledge or appreciation of the likelihood of resulting injury.” Id. at paragraph two of the syllabus. Wanton misconduct, on the other hand, “is the failure to exercise any care [for] those to whom a duty of care is owed in circumstances in which there is great probability that harm will result.” Id. at paragraph three of the syllabus.
{¶ 17} Ibrahim concedes that Officer Evans‘s actions did “not rise to the level of willful misconduct,” instead maintaining that his actions amount to wanton misconduct because he “did not use any care in the operation of his police [vehicle] at the time of the accident,” faulting him specifically for reversing his vehicle “without checking his mirrors or activating [the vehicle‘s] lights or siren.” Appellant‘s Br. 17. Yet, the only evidence on record shows that Officer Evans reversed his vehicle “at just a few miles per hour” and drove backwards merely “two to three feet” when the accident occurred. Under the circumstances, we cannot conclude that this presented a great probability of harm to others, and the low speed at which the officer reversed his vehicle represents at least a modicum of care. Evans Aff. ¶ 8-9; Evans Dep. 45:2-45:5; compare with Seege v. Smith, 2d Dist. Montgomery No. 26210, 2014-Ohio-5450, ¶ 29-30.
{¶ 18} Ibrahim suggests that Officer Evans “was only traveling at such a low [speed] because he had just abruptly changed directions,” implying that he would have driven faster if he had had sufficient space, but this is nothing more than speculation. Appellant‘s Br. 17-18. The record includes no evidence contradicting Officer Evans‘s sworn testimony that he reversed his vehicle for a very short distance at a very low speed, and we find accordingly that the record does not give rise to any genuine dispute of material fact on the question of whether Officer Evans‘s operation of his vehicle was willful or wanton. Given that we have already determined the officer was responding to an emergency call at the time of the accident, we find further that the trial court did not err by holding that the City of Dayton is entitled to immunity pursuant to
{¶ 19} For her third assignment of error, Ibrahim argues that:
THE TRIAL COURT ERRED IN FINDING THAT OFFICER EVANS IS ENTITLED TO IMMUNITY UNDER []R.C. * * * 2744.03(A).
{¶ 20} Finally, Ibrahim contends that Officer Evans‘s actions “constituted wanton and reckless conduct,” subjecting him to personal liability. Appellant‘s Br. 18. This contention implicates the provisions of
{¶ 21} The term “wanton,” as noted above, means a “failure to exercise any care
{¶ 22} We have already found that Officer Evans‘s operation of his police vehicle at the time of the accident did not constitute wanton conduct. In light of the “high standard” required to make a showing of recklessness, we hold likewise that Officer Evans did not act recklessly. Rankin, 2008-Ohio-2567, ¶ 37. Arguably, Officer Evans consciously disregarded the obvious risk that he would back into another vehicle behind his own—which is exactly what happened. Nevertheless, at very low speed, an accident of this sort did not present a “risk of harm to another that [was] unreasonable under the circumstances,” and the officer‘s likely failure to check his rear-view mirrors, though hardly above criticism, was not so egregious that it can fairly be said to be “substantially [worse] than negligen[ce].”6 Anderson, 2012-Ohio-11, ¶ 34; see also Argabrite v. Neer, 149 Ohio St.3d 349, 2016-Ohio-8374, 75 N.E.3d 161, ¶ 7-8.
{¶ 23} Ibrahim has not demonstrated that this case presents a genuine dispute of material fact on the question of whether Officer Evans operated his police vehicle
III. Conclusion
{¶ 24} On our de novo review, we find that Ibrahim has not met her burden to show that this case presents a genuine issue of material fact on the questions of whether Officer Evans was responding to an emergency call at the time of the accident, or whether Officer Evans‘s operation of his police vehicle was willful, wanton or reckless. Therefore, Ibrahim‘s assignments of error are overruled, and the trial court‘s decision of July 19, 2017, is affirmed.
WELBAUM, P.J. and HALL, J., concur.
Copies mailed to:
Edward C. Yim
Martin W. Gehres
John C. Musto
Hon. Barbara P. Gorman