DONNA SEEGE v. CHRISTOPHER B. SMITH, et al.
Appellate Case No. 26210
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
December 12, 2014
2014-Ohio-5450
Trial Court Case No. 2012-CV-6782 (Civil Appeal from Common Pleas Court)
Rendered on the 12th day of December, 2014.
DWIGHT BRANNON, Atty. Reg. No. 0021657, DOUGLAS D. BRANNON, Atty. Reg. No. 0076603, MATTHEW C. SCHULTZ, Atty. Reg. No. 0080142, 130 West Second Street, Suite 900, Dayton, Ohio 45402 Attorneys for Plaintiff-Appellant-Donna Seege
NEIL F. FREUND, Atty. Reg No. 0012183, LEONARD J. BAZELAK, Atty. Reg. No. 0064023, 1 South Main Street, Suite 1800, Dayton, Ohio 45402, JOHN J. DANISH, Atty. Reg. No. 0046639, JOHN C. MUSTO, Atty. Reg. No. 0071512, 101 West Third Street, P.O. Box 22, Dayton, Ohio 45401 Attorneys for Defendant-Appellee-Christopher B. Smith
TODD SMITH, Atty. Reg. No. 0076794, 6047 Frantz Road, Suite 203, Dublin, Ohio 43017 Attorney for Defendants-Appellees-AARP and United Healthcare Services, Inc.
MARGARET SCHUTTE, Atty. Reg. No. 0078968, 200 West Second Street, Suite 200, Dayton, Ohio 45402 Attorney for Defendant-Appellee-U.S. Department of Health and Human Services
WELBAUM, J.
{¶ 1} In this case, Plaintiff-Appellant, Donna Seege, appeals from a summary judgment rendered in favor of Defendants-Appellees, Christopher Smith and the City of Dayton, on grounds of their statutory immunity under
{¶ 2} We conclude that the trial court did not err in rendering summary judgment on behalf of Appellees. The undisputed facts, construed most strongly in Appellant‘s favor, indicate that Smith was on an emergency call (statutorily defined as a call to duty) and did not act in a wanton or reckless manner when his cruiser struck Seege‘s wheelchair. Accordingly, the judgment of the trial court will be affirmed.
I. Facts and Course of Proceedings
{¶ 3} On April 12, 2011, Donna Seege left her apartment on Third Street in Dayton,
{¶ 4} Around the same time, Dayton Police Officer, Christopher Smith, was on patrol in the area, driving a 2004 Ford Crown Victoria cruiser. Smith frequently patrolled in the area of West Second Street and James H. McGee Boulevard, and was aware there was an unmarked crosswalk at the intersection. Shortly before the accident, Smith received a dispatch telling him to respond to a traffic crash at North James H. McGee Boulevard and Bridge Street. Smith described this as a non-emergency call, because another officer was already at the scene. In addition, there were no injuries. Smith did not activate his lights and sirens, which he would use in an emergency situation. Smith also indicated that in non-emergency situations, police officers must follow the same traffic rules and laws as ordinary citizens.
{¶ 5} When Smith received the dispatch, he was near Stewart Street. He traveled to Interstate 75, went northbound, and took the westbound exit to South James H. McGee Boulevard. Smith then traveled northbound on James H. McGee Boulevard. The speed limit was 40 miles per hour. Smith encountered a green light at the intersection of James H. McGee Boulevard and West Third Street, which was a block south of the intersection where Seege was attempting to cross. Traffic was moderate to heavy, and there were no cars ahead of Smith as he
{¶ 6} The black box in the cruiser indicated that Smith‘s speed was 45 or 46 miles per hour at 11 seconds before the collision, and about 41.5 miles at the time the brakes were applied. As Smith got close to the intersection of Second and James H. McGee, he glanced to the left at the All in One parking lot, which was located on the northwest side of the intersection. Smith stated that he does this habitually when he passes stores, to look for any type of drug activity, fights, robberies, or disturbances. Smith‘s initial accounts to the police indicated that he looked to his left for four to five seconds. However, at his deposition, Smith stated that he believed he had looked to the left only for one to three seconds.
{¶ 7} Once Smith arrived at the intersection, he saw, in his peripheral vision, a motorized wheelchair moving from the east to his west. He slammed on his brakes, but still struck the wheelchair with the left front bumper of his cruiser. Smith‘s airbag deployed as a result of the collision. The wheelchair was in the unmarked crosswalk when it was struck, and the point of impact was on the south side of the intersection, in the left-hand lane. Seege was thrown off the wheelchair and landed to the left of the cruiser. The wheelchair ended up going to the left, toward the center divider and the empty southbound lane of travel.
{¶ 8} Seege was taken to the hospital, where she remained for a month, with significant injuries. In September 2012, Seege filed suit against Smith and the City of Dayton, alleging that Smith had negligently, willfully, wantonly, and recklessly failed to yield the right of
II. Did the Trial Court Err in Rendering Summary Judgment in Appellees’ Favor?
{¶ 9} Seege‘s sole assignment of error states that:
The Trial Court Erred in Granting Summary Judgment to Defendants-Appellees Officer Christopher Smith and the City of Dayton.
{¶ 10} Under this assignment of error, Seege first contends that Officer Smith was not responding to an emergency call for purposes of statutory immunity, and that the trial court interpreted the term “emergency call” too expansively.
{¶ 11} It is well-established that “[a] trial court may grant a moving party summary judgment pursuant to Civ. R. 56 if there are no genuine issues of material fact remaining to be litigated, the moving party is entitled to judgment as a matter of law, and reasonable minds can come to only one conclusion, and that conclusion is adverse to the nonmoving party, who is entitled to have the evidence construed most strongly in his favor.” (Citation omitted.) Smith v. Five Rivers MetroParks, 134 Ohio App.3d 754, 760, 732 N.E.2d 422 (2d Dist.1999). “We review decisions granting summary judgment de novo, which means that we apply the same standards as the trial court.” (Citations omitted.) GNFH, Inc. v. W. Am. Ins. Co., 172 Ohio App.3d 127, 2007-Ohio-2722, 873 N.E.2d 345, ¶ 16 (2d Dist.). With these standards in mind, we will consider Seege‘s claims.
{¶ 12} As a general rule,
{¶ 13} Consistent with this exception,
{¶ 14} In Colbert v. Cleveland, 99 Ohio St.3d 215, 2003-Ohio-3319, 790 N.E.2d 781, the Supreme Court of Ohio interpreted the meaning of an “emergency call” as used in
{¶ 15} When considering this issue, the court first reviewed the words in the statute,
Following the term “call to duty,”
R.C. 2744.01(A) continues with the phrase ”including, but not limited to, communications from citizens, police dispatches, and personal observations by peace officers of inherently dangerous situations that demand an immediate response on the part of a peace officer.” (Emphasis added.) The phrase “including, but not limited to,” ” ‘indicates that what follows is a nonexhaustive list of examples.’ ” (Emphasis added.) State v. Thompson (2001), 92 Ohio St.3d 584, 588, 752 N.E.2d 276, quoting State v. Lozano (2001), 90 Ohio St.3d 560, 562, 740 N.E.2d 273. Examples are typically intended to provide illustrations of a term defined in the statute, but do not act as limitations on that term. Moreover, of the three examples listed inR.C. 2744.01(A) , only the third example, “personal observations by peace officers of inherently dangerous situations that demand an immediate response on the part of a peace officer,” refers to a dangerous situation, thereby indicating that the other listed examples need not involve an inherently dangerous situation. Therefore, we find that the phrase “inherently dangerous situations” places no limitation on the term “call to duty.”
Had the General Assembly intended to limit an emergency call to only those situations that were inherently dangerous, it could have expressly imposed that limitation. Because no such limiting language exists in
R.C. 2744.01(A) , we will not add it by judicial fiat. Accordingly, we hold that an “emergency call” as defined inR.C. 2744.01(A) involves a situation to which a response by a peace officer is required by the officer‘s professional obligation.
{¶ 16} The trial court relied on this interpretation in finding that Smith was on an emergency call under
{¶ 17} Seege argues that even under Colbert‘s interpretation, not every professional duty performed by a police officer while operating a motor vehicle can constitute an emergency call for purposes of the statute. According to Seege, the use of the word “emergency” in
{¶ 18} As an initial matter, Smith‘s characterization of his status is irrelevant. The Supreme Court of Ohio rejected the idea of such an “admission” in Smith v. McBride, 130 Ohio St.3d 51, 2011-Ohio-4674, 955 N.E.2d 954, ¶ 44, fn. 5. In this regard, the court observed that:
Smith implies that Carpenter‘s statement that he was not on an emergency run
should equate to an admission that he was not on an emergency call for R.C. Chapter 2744 purposes. However, an emergency run pursuant to the police department‘s protocols and an emergency call for purposes of statutory immunity are different. For purposes of evaluating whether immunity attaches, even when an officer is not on an emergency run, he may still be responding to a call to duty and thus be acting under a professional obligation to respond. See Colbert, 99 Ohio St.3d 215, 2003-Ohio-3319, 790 N.E.2d 781, at the syllabus.
{¶ 19} In support of her position, Seege cites a number of cases in which courts have either found conflicts in evidence concerning whether an officer was responding to an emergency call, or have found that officers may perform functions that involve operation of a cruiser, but may not be on an “emergency call.”
{¶ 20} For example, in Malone v. Torres, 8th Dist. Cuyahoga No. 92878, 2010-Ohio-157, the court of appeals found that summary judgment on immunity had been properly denied due to conflicting evidence about whether an emergency call existed. Id. at ¶ 15. The court first distinguished “the traffic violations, i.e., speeding and improper lane changing, in the case at bar * * * from high-crime area drug deal observation and necessary stealth pursuit in Colbert.” Id. at ¶ 19. In this regard, the court stressed that:
It is questionable that speeding or improper lane changing, without personal observation of more serious crimes, is worth putting citizens’ lives at risk. Therefore, allowing immunity in a situation where officers failed to use their lights and sirens or even make a dispatch call to the police station before racing
through an intersection against the light becomes a question of fact.
{¶ 21} The court of appeals then went on to find that there were factual issues precluding summary judgment in the city‘s favor. In particular, the court focused on the officers’ failure to follow procedure, failure to notify anyone of their alleged vehicle chase, and “self-serving” testimony. Id. at ¶ 7 and 26. The court also noted that the victims, who were struck by the police cruiser, testified that no vehicle had traveled through the intersection immediately before the accident. This contrasted with the officers’ testimony that they had been chasing a vehicle through the intersection. Id. at ¶ 22. There were also factual issues with regard to whether the officers had activated the lights and sirens on their cruiser before colliding with the victims’ automobile. Id.
{¶ 22} Similarly, in Baker v. Cleveland, 8th Dist. Cuyahoga No. 93952, 2010-Ohio-5588, the court of appeals concluded that the trial court did not err in denying a city‘s motion for directed verdict on the immunity issue. Id. at ¶ 26. The court noted conflicting testimony and credibility issues about whether the officer was responding to a call to duty (a property damage accident that the officer had not notified dispatch about) or whether he was traveling to a parade assignment, which had been conceded by the city as a non-emergency situation. Id. at ¶ 23-25.
{¶ 23} In yet another case cited by Seege, the court of appeals concluded that reasonable minds could differ regarding whether an officer was responding to a “call to duty,” i.e., “required by his professional obligation to respond to the call,” under Colbert. See Brown v. Cuyahoga Falls, 9th Dist. Summit No. 24914, 2010-Ohio-4330, ¶ 16. In Brown, the officer did
{¶ 24} These types of factors are absent in the case before us. There is no factual dispute about what occurred. Unlike the officers in Malone, Baker, and Brown, Smith had been dispatched to a traffic accident and was responding to that dispatch at the time his vehicle collided with Seege‘s wheelchair.
{¶ 25} We do agree with Seege to the extent that not every function performed by a police officer may fit within the definition of an emergency call. In Burnell v. Dulle, 169 Ohio App.3d 792, 795-796, 2006-Ohio-7044, 865 N.E.2d 86 (12th Dist), the court of appeals concluded that a deputy who ran over a pedestrian‘s foot in a courthouse parking lot was not on an emergency call for purposes of
{¶ 26} In rejecting immunity, the court of appeals stated that:
The fact that Deputy Dulle was an on-duty police officer driving to court to testify at the time of the incident does not make this an emergency call. We recognize that the Ohio Supreme Court held that an “emergency call” is not limited to inherently dangerous situations that demand an immediate response. See Colbert v. Cleveland, 99 Ohio St.3d 215, 2003-Ohio-3319, 790 N.E.2d 781, ¶ 11-15. The high court held that an “emergency call” as defined in
R.C. 2744.01(A) “involves a situation to which a response by a peace officer is required by the officer‘s professional obligation.” Id. at ¶ 15. But we do not findthat the Colbert court‘s analysis requires that the phrase “emergency call” be so broadly construed as to encompass the facts of this case.
It was not Deputy Dulle‘s professional duty, but his civic duty, to respond to the subpoena. The fact that the subject matter of his testimony involved the officer‘s official duties does not render driving to the city building to testify about the subject an emergency call. Deputy Dulle‘s professional obligations were not engaged while he was driving to the courthouse. Thus, this case is distinguishable from those cited by Warren County for support of its argument. See, e.g., Cunningham v. Akron, Summit App. No. 22818, 2006-Ohio-519, 2006 WL 290100; Rutledge v. O‘Toole, Cuyahoga App. No. 84843, 2005-Ohio-1010, 2005 WL 563727; Kintyhtt v. Barberton, Summit App. No. 22468, 2005-Ohio-3799, 2005 WL 1763606.
{¶ 27} Seege contends that the trial court interpreted Colbert too expansively, by interpreting “any” professional responsibility as an emergency call. We disagree. The trial court properly concluded that Smith was responding to a call to duty because he had been dispatched to respond to a traffic accident. Colbert and its progeny do not require that the situation to which an officer is sent be inherently dangerous, or even that the police department itself classify the situation as an emergency. Unlike the situations in the cited cases, Smith was responding to a call to duty for purposes of statutory immunity.
{¶ 28} Seege‘s next argument is that Smith was acting in a wanton manner. As was noted, the immunity exception in
{¶ 29} “[T]he issue of wanton misconduct is normally a jury question.” (Citation omitted.) Fabrey v. McDonald Village Police Dept., 70 Ohio St.3d 351, 356, 639 N.E.2d 31 (1994). We have noted that “wanton misconduct involves the failure to exercise any care toward one to whom a duty is owed when the failure occurs under circumstances for which the probability of harm is great and when the probability of harm is known to the tortfeasor.” Carder v. Kettering, 2d Dist. Montgomery No. 20219, 2004-Ohio-4260, ¶ 20, citing Hunter v. Columbus, 139 Ohio App.3d 962, 969, 746 N.E.2d 246 (10th Dist. 2000), and Matkovich v. Penn Cent. Transp. Co., 69 Ohio St.2d 210, 431 N.E.2d 652 (1982), paragraph two of the syllabus.
{¶ 30} Even accepting Seege‘s factual assertions as true, we cannot conclude that Smith‘s actions were wanton. The officer in Carder was traveling at more than 80 miles per hour in a residential zone, and was traveling uphill in an area that limited his visibility as well as that of other motorists. Carder at ¶ 24. In contrast, Smith was traveling only a few miles above the speed limit, in an area where his visibility was not limited. Notably, even in Carder, we did not find that the officer failed to exercise any care whatsoever and that his actions were wanton Id. at ¶ 20. Accordingly, we agree with the trial court that Smith‘s actions were not wanton. As a result, the City of Dayton was entitled to statutory immunity under
{¶ 31} Seege‘s final argument is that there are factual issues regarding whether Smith
{¶ 32} The relevant exception here is wanton or reckless conduct. We have already concluded that Smith did not act in a wanton manner, which leaves the issue of Smith‘s alleged recklessness. ” ‘An individual acts “recklessly” when he “does an act or intentionally fails to do an act which is in 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 unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.” ’ ” Carder, 2d Dist. Montgomery No. 20219, 2004-Ohio-4260, at ¶ 22, quoting Hunter, 139 Ohio App.3d at 969, 746 N.E.2d 246. See also, Anderson v. Massillon, 134 Ohio St.3d 380, 2012-Ohio-5711, 983 N.E.2d 266, ¶ 34 (noting that “reckless conduct is characterized by a substantial and unjustifiable risk of harm to others and a conscious disregard of or indifference to the risk, but the actor does not desire harm“).
{¶ 34} In arguing that Smith‘s conduct was reckless, Seege relies on the testimony of her expert, who stated that Smith‘s behavior was “grossly neglectful and reckless.” See Affidavit of Stuart Nightenhelser, ¶ 12, attached to Doc. # 60. This assertion, however, is considered an improper legal conclusion that should not be submitted in affidavits used to show genuine issues of material fact. Fediaczko v. Mahoning Cty. Children Servs., 7th Dist. Mahoning No. 11 MA 186, 2012-Ohio-6090, ¶ 30. See, also, Pope v. Trotwood Madison City School Dist. Bd. of Edn., 2d Dist. Montgomery No. 20072, 2004-Ohio-1314, ¶ 17.
{¶ 35} Furthermore, “just because a plaintiff can find an expert to state in an affidavit that an act was reckless does not mean that there is a genuine issue for trial as to whether the defendant lost her immunity due to recklessness.” Fediaczko at ¶ 31. ” ‘[A]lthough the determination of recklessness is typically within the province of the jury, summary judgment is appropriate in instances where the individual‘s conduct does not demonstrate a disposition to perversity.’ ” (Citations omitted.) Lindsey v. Summit Cty. Children Servs. Bd., 9th Dist. Summit No. 24352, 2009-Ohio-2457, ¶ 19, quoting Fields v. Talawanda Bd. of Edn., 12th Dist. Butler No. CA2008-02-035, 2009-Ohio-431, ¶ 16.
{¶ 36} After reviewing the record, we find no evidence of a disposition to perversity on Smith‘s part, nor do we find a conscious disregard of risk to others. Instead, this unfortunate accident appears to have been the result of Smith‘s momentary inattention to the road. Again, Smith‘s conduct may have been negligent, but it does not rise to the level of recklessness. As a result, the trial court did not err in concluding that Smith was individually immune for Seege‘s injuries.
{¶ 37} Based on the preceding discussion, Seege‘s sole assignment of error is overruled.
III. Conclusion
{¶ 38} Seege‘s sole assignment of error having been overruled, the judgment of the trial court is affirmed.
HALL, J., concurs.
FROELICH, P.J., concurring:
{¶ 39} Officer Smith had been dispatched to a specific location and had a professional obligation to respond. He therefore fell within the statutory definition of “emergency call” as interpreted by The Supreme Court in Colbert. Appellant‘s reasoning about the seemingly self-contradictory meaning of a non-emergency, emergency call would have to, in turn, be resolved by that same Supreme Court.
Dwight Brannon
Douglas D. Brannon
Matthew C. Schultz
Neil F. Freund
Leonard J. Bazelak
John J. Danish
John C. Musto
Todd Smith
Margaret Schutte
Hon. Barbara P. Gorman