RASHIDA PERRY, INDIVIDUALLY AND AS PARENT AND NEXT FRIEND OF S.N.K., A MINOR, et al., Plaintiffs-Appellants, - vs - LIBERTY TOWNSHIP, BY & THROUGH PATRICK UNGARO, ADMINISTRATOR, et al., Defendants-Appellees.
CASE NO. 2012-T-0056
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT TRUMBULL COUNTY, OHIO
2013-03-04
2013-Ohio-741
DIANE V. GRENDELL, J.
Civil Appeal from the Trumbull County Court of Common Pleas, Case No. 2011 CV 00778. Judgment: Affirmed.
Mel L. Lute, Jr., Baker, Dublikar, Beck, Wiley & Mathews, 400 South Main Street, North Canton, OH 44720 (For Defendants-Appellees).
OPINION
DIANE V. GRENDELL, J.
{¶1} Plaintiff-appellants, Rashida Perry, Teeya Graham, and Roberta Robinson, appeal the Judgment Entry of the Trumbull County Court of Common Pleas, granting summary judgment in favor of defendants-appellees, Liberty Township and unnamed Liberty Township Employees. The issues before this court are whether a municipality/police officers are the proximate cause of injuries to third persons caused
{¶2} On April 12, 2011, Rashida Perry, Teeya Graham, and Roberta Robinson filed a Complaint, individually and as the parents and next friends of certain minor children, against Liberty Township and unnamed Liberty Township Employees, in the Trumbull County Court of Common Pleas. The Complaint alleged that, on November 23, 2006, officers of the Liberty Police Department negligently and/or wantonly and recklessly “commenced a police chase for a minor traffic offense in a situation which did not rise to the level of an emergency call,” and, “without due care for the rights and safety of other, pursued said fleeing vehicle that it (sic) knew to be posing an unreasonable danger to the public.” As a direct and proximate result of the officers’ pursuit, “the fleeing vehicle crashed into a disabled vehicle and thereafter struck the minor children of the several plaintiffs.”
{¶3} On May 10, 2011, Liberty Township and its Employees filed their Answer.
{¶4} On November 7, 2011, Liberty Township filed a Motion for Summary Judgment. Attached to the Motion was the Affidavit of Patrolman Michael Janovick of the Liberty Township Police Department. Janovick stated that, on November 23, 2006, he stopped a “light grey Oldsmobile” on Granada Avenue for not having a front license plate. As he approached the Oldsmobile, “the driver put the vehicle in gear and fled eastbound on Granada.” At this time, Patrolman Ray Buhala, also of the Liberty Township Police Department, was approaching and initiated a pursuit. “[V]ery shortly
{¶5} Patrolman Buhala testified, by Affidavit, that he “observe[d] the [fleeing] vehicle disregard a posted stop sign at Granada and Guadalupe [Avenue] and made a decision to terminate any further attempt to stop the suspect vehicle.” After deactivating his overhead lights and siren, Buhala turned north on Goleta Avenue and east on Gypsy Lane. Thereupon, he was advised by another motorist of an accident on Granada Avenue. “Upon arrival, [Buhala] observed the suspect vehicle that fled the traffic stop, unoccupied and crashed into a tree in the yard of a house north of the intersection of Granada and Cordova [Avenue].” The distance from the “intersection of Granada and Guadalupe where [Buhala] terminated the pursuit is five streets and almost one mile from the location where the Oldsmobile allegedly struck the plaintiffs.”
{¶6} On March 15, 2012, the plaintiffs filed their Opposition to Defendants’ Motion for Summary Judgment. In support of their Opposition, the plaintiffs submitted the Affidavit of Dontae Hubbert, the driver of the Oldsmobile on the date in question. Hubbert stated that, after fleeing the police officers, he “drove straight down Granada at about 45 mph.” At the intersection of Granada and Fifth Avenue, Hubbert could see one patrol car with “its lights flashing in my rear view mirror.” Hubbert continued eastbound on Granada before striking a stopped vehicle in the roadway. Hubbert “lost control and spun out in a yard” as the “car went backwards into a tree.”
{¶7} The plaintiffs also submitted the Affidavit of Victor M. Thomas, who was visiting family near the intersection of Granada and Cordova on the date in question.
{¶8} On June 14, 2012, the trial court issued a Judgment Entry, granting Liberty Township‘s Motion for Summary Judgment. The court found “that all Defendants are immune as a matter of law under
{¶9} On July 10, 2012, the plaintiffs filed their Notice of Appeal. On appeal, they raise the following assignments of error:
{¶10} “[1.] Defendants Liberty Township and Officers Janovick and Buhala are not immune from liability under Ohio law for their negligent acts.”
{¶11} “[2.] In the alternative, Defendants/Officers Janovick and Buhala are not immune from liability under Ohio law because their actions in this case were willful, reckless and wanton.”
{¶12} Pursuant to
{¶13} The determinative issue in this appeal is the degree to which Liberty Township and Patrolmen Janovick and Buhala are entitled to the protections of Ohio‘s Political Subdivision Tort Liability Act.
{¶14} Liberty Township is generally immune from civil liability for actions taken by it or its employees in connection with a governmental function, such as the operation of a police department.
{¶15} However, “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,” except where “[a] member of a municipal corporation police department or
{¶16} On appeal, the plaintiffs argue the trial court erred in finding Liberty Township and Patrolmen Janovick and Buhala were entitled to immunity. They contend that Janovick‘s and Buhala‘s admissions that the pursuit had terminated deprived them of any claim to immunity under the “emergency call” exception. Therefore, a negligence standard should be applied to assess Liberty Township‘s liability. Under this standard, the plaintiffs further contend, a genuine issue of material fact exists as to whether the patrolmen were negligent in initiating and continuing the pursuit of a fleeing suspect for a registration violation through a residential area.
{¶17} The issue of whether Liberty Township and Patrolmen Janovick and Buhala were entitled to immunity under the “emergency call” exception becomes irrelevant, however, if, as the trial court found, Patrolmen Janovick and Buhala were not, as a matter of law, the proximate cause of the plaintiffs’ injuries. Stated otherwise, if Patrolmen Janovick‘s and Buhala‘s conduct did not proximately cause the plaintiffs’ injuries, there is no legal basis for holding Liberty Township liable for those injuries. Whitfield v. Dayton, 167 Ohio App.3d 172, 2006-Ohio-2917, 854 N.E.2d 532, ¶ 44 (2nd Dist.) (“[s]ince there must always be a causal connection between disputed conduct and an injury, a plaintiff would have to satisfy proximate cause requirements even if an
{¶18} The trial court relied on the case of Lewis v. Bland, 75 Ohio App.3d 453, 599 N.E.2d 814 (9th Dist.1991), for the following proposition: “When a law enforcement officer pursues a fleeing violator and the violator injures a third party as a result of the chase, the officer‘s pursuit is not the proximate cause of those injuries unless the circumstances indicate extreme or outrageous conduct by the officer, as the possibility that the violator will injure a third party is too remote to create liability until the officer‘s conduct becomes extreme.” Id. at 456.
{¶19} The holding of Lewis has been recognized as “established law.” Whitfield at ¶ 59. “Ohio appellate districts * * * have continued to apply the ‘no proximate cause’ holding of Lewis to cases where pursuits end in injury to innocent third parties or to occupants of the pursued vehicle, without direct contact with a police vehicle.” Id. at ¶ 57. The following examples are cited in Whitfield: Jackson v. Poland Twp., 7th Dist. Nos. 96 C.A. 261, 97 C.A. 13, and 98 C.A. 105, 1999 Ohio App. LEXIS 4703, *20-21 (Sept. 29, 1999) (finding no proximate cause where pursued vehicle crashed into tree, killing passenger); Heard v. Toledo, 6th Dist. No. L-03-1032, 2003-Ohio-5191, ¶ 11-12 (finding no proximate cause where a third party was killed in a collision with pursued vehicle, and rejecting the argument that Lewis is “outdated“); Pylypiv v. Parma, 8th Dist. No. 85995, 2005-Ohio-6364, ¶ 33 (pursuit was not proximate cause of an accident that killed two persons on a motorcycle that was being pursued); Shalkhauser v. Medina, 148 Ohio App.3d 41, 2002-Ohio-222, 772 N.E.2d 129, ¶ 45-49 (Ninth Appellate District follows its prior decision in Lewis and finds no proximate cause where pursued vehicle collided with a third party).
{¶20} The plaintiffs urge this court not to follow Lewis, relying on the dissenting judge‘s argument in Whitfield that “multiple actors may combine to provide causation in a given instance.” 2006-Ohio-2917, at ¶ 118 (Brogan, J., dissenting).
{¶21} Under the facts of the present case, reasonable minds could only conclude that Hubbert was the sole proximate cause of the plaintiffs’ injuries. This is not the stereotypical situation where a fleeing suspect loses control of his vehicle after police have engaged him in a high-speed chase. In the present case, Hubbert fled after the patrolmen had initiated a lawful stop. According to his own Affidavit, Hubbert “drove straight down Granada at about 45 mph” (or 50 mph according to Patrolman Buhala‘s Affidavit). Less than a mile away from the attempted stop, Hubbert struck a stationary vehicle in the roadway, which caused him to lose control so that he “spun out in a yard.” According to Thomas’ Affidavit, the vehicle “had been parked in the street * * * and it had its flashers on.” Construing the evidence most strongly in the plaintiffs’ favor, Hubbert was pursued for a short distance at moderate speeds and inexplicably struck a stationary vehicle with flashing lights.
{¶22} The only possible causal connection between the plaintiffs’ injuries and the actions of Patrolmen Janovick and Buhala is that the patrolmen decided to pursue a fleeing suspect. The decision to pursue a suspect, however, does not constitute the operation of a motor vehicle for the purposes of
{¶23} As the plaintiffs failed to demonstrate a causal connection between their injuries and any actionable conduct by Patrolmen Janovick and Buhala, Liberty Township was entitled to summary judgment.
{¶24} The first assignment of error is without merit.
{¶25} In the second assignment of error, the plaintiffs contend that a genuine issue of material fact exists as to whether Patrolmen Janovick‘s and Buhala‘s conduct was willful, reckless, and/or wanton. Compare
{¶26} The plaintiffs’ claims against Patrolmen Janovick and Buhala necessarily failed because the patrolmen were not properly added as defendants to this action. The plaintiffs’ Complaint was filed against unnamed Liberty Township Employees. “A civil action is commenced by filing a complaint with the court, if service is obtained within
{¶27} The second assignment of error is without merit.
{¶28} For the foregoing reasons, the Judgment Entry of the Trumbull County Court of Common Pleas, granting summary judgment in favor of Liberty Township and unnamed Liberty Township Employees, is affirmed. Costs to be taxed against appellants.
TIMOTHY P. CANNON, P.J.,
THOMAS R. WRIGHT, J.,
concur.