Smith v. McBrideSmith v. McBride
Lead Opinion
{¶ 1} In this political-subdivision-immunity case, a township police officer was involved in a motor-vehicle accident outside his own jurisdiction while responding to a general dispatch call for assistance from an officer in another jurisdiction.
I. Facts and Procedural History
{¶ 2} Late in the evening of March 14, 2006, Clinton Township Police Sergeant Travis Carpenter
{¶ 3} Carpenter immediately headed to the location in a marked police cruiser. Although Carpenter was speeding, he was not using his siren or emergency lights. Driving east in light traffic on Morse Road, he approached the intersection with Chesford Road. Carpenter had a green light to proceed through the intersection, which is located in the city of Columbus, a third jurisdiction.
{¶ 4} Just prior to Carpenter’s entry into the intersection, a vehicle that had been traveling west on Morse Road made a left turn in front of him to go south on Chesford Road. That vehicle was closely followed by a second vehicle, which also attempted to make a left turn onto Chesford Road. The latter vehicle and Carpenter’s cruiser collided in the intersection.
{¶ 5} The speed limit on Morse Road at this location was 45 miles per hour. Evidence in the record indicates that Carpenter was traveling about 64 miles per hour at the time.
{¶ 6} Vashawn McBride was the driver of the vehicle that collided with the cruiser, and he was severely injured in the crash. Plaintiff-appellant, Lea Smith, a passenger in McBride’s vehicle who was asleep at the time of the accident, was also injured.
{¶ 7} Smith filed a personal-injury suit naming as defendants, inter alia, McBride, Carpenter, and Clinton Township,
{¶ 8} The trial court later granted Smith’s motion for
{¶ 9} In her appeal to the Tenth District Court of Appeals, Smith contended that Clinton Township was not entitled to immunity under
{¶ 10} The appellate court, in a divided decision, affirmed the trial court’s grant of summary judgment in all respects.
{¶ 11} We accepted Smith’s appeal under our discretionary jurisdiction for review of two propositions of law.
II. Analysis
{¶ 12} Summary judgment is appropriate when an examination of all relevant materials filed in the action reveals 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.”
A. R.C. Chapter 2744
{¶ 13} In determining whether a political subdivision is immune from tort liability under R.C. Chapter 2744, courts apply a three-tiered analysis. Colbert v. Cleveland,
{¶ 14} Political-subdivision immunity is not absolute, however. The second tier of the analysis focuses on the five exceptions to immunity listed in
{¶ 15} If any of the exceptions to immunity of
B. R.C. 27U-02(B)(l)(a) and 27U-01(A)
{¶ 16} The statutes central to the resolution of this case are
{¶ 18}
{¶ 19} The appeals court affirmed the trial court’s finding that Carpenter’s operation of his vehicle did not constitute willful or wanton misconduct for purposes of
{¶ 20} The only relevant issue before us, then, is whether Carpenter could have been on an emergency call for purposes of
C. Colbert v. Cleveland
{¶ 21} In Colbert,
{¶ 22} Colbert involved two Cleveland police officers on patrol in the early morning hours who witnessed what they believed was a drug deal in a high-crime area. Id. at ¶ 3. The officers then pursued the suspects’ vehicle in their patrol car but did not activate their emergency lights or siren or summon backup. Id. At an intersection, the officer driving the patrol car stopped and looked both
{¶ 23} In construing the statutory meaning of the phrase “a call to duty” in Colbert, we focused on the dictionary definition of “duty” as “ ‘obligatory tasks, conduct, service, or functions enjoined by order or usage according to rank, occupation, or profession.’ ” Id.,
{¶ 24} In Colbert, we affirmed the grant of summary judgment to the city of Cleveland. We held that the officers involved were responding to a call to duty and, therefore, were responding to an emergency call when the accident occurred. The city was entitled to immunity under
D. Mutualr-Aid Agreements and R.C. Chapter 27.kk
{¶ 25} This case has a number of similarities to the situation in Colbert. However, Smith asserts, in essence, that Colbert is fundamentally distinguishable because the police officers in Colbert were acting in their own jurisdiction but in this case, Carpenter was responding to a call in a different jurisdiction. Smith asserts that Carpenter could not have been on an emergency call as a matter of law if there was no mutual-aid agreement between Clinton Township and Franklin County at the time of the accident. Carpenter’s professional obligation to respond to the dispatch, Smith argues, was dependent on the existence of such an agreement. Smith further asserts that such an agreement must be in writing to be effective, and asserts that because the record does not affirmatively establish that such an agreement existed, there are genuine issues of material fact that should preclude the granting of summary judgment in the township’s favor.
{¶ 26} We agree with Smith that the record is inconclusive as to whether a mutual-aid agreement existed between Clinton Township and Franklin County at the time of the accident. Therefore, we conduct our inquiry on the assumption that no mutual-aid agreement between the relevant jurisdictions existed when the
{¶ 27} In support of her argument that Carpenter’s professional obligation to respond to the dispatch was dependent on the existence of a mutual-aid agreement, Smith relies on two main sources' — -this court’s decision in Sawicki v. Ottawa Hills (1988),
{¶ 28} Smith asserts that in Samcki, “this Court emphasized that pursuant to
{¶ 29} “A Mutual Aid Pact is, in essence, an agreement between contiguous municipalities. It requires that, under specified circumstances, one municipality may request and receive aid from an adjoining municipality. It allows a municipality’s police officer to respond to an out-of-jurisdiction request for aid, when the request is made by a command officer of the adjoining municipality.”
{¶ 30} Smith maintains that in the absence of a mutual-aid agreement, an officer has no duty or professional obligation to respond, and that, quoting Sawicki,
{¶ 31} Sawicki involved claims that the Ottawa Hills Police Department had been negligent for failing to respond to a call from outside of, but very near to, its jurisdiction. Id. at 223-224. The issues involved whether the defendant, Ottawa Hills, owed the plaintiffs, crime victims, a duty to respond to the extrajurisdictional call for assistance and whether the failure to respond proximately caused the injuries. Id. at 225. However, the events in Sawicki occurred prior to the 1985 effective date of R.C. Chapter 2744. Id. The Sawicki court’s analysis and reasoning regarding mutual-aid agreements is based on pre-R.C. Chapter 2744 law and is thus distinguishable from the matters under consideration in the
{¶ 32} Smith attempts to buttress her Sawicki argument with citations to and discussions of several statutes covering mutual-aid agreements and statutes relating to a police officer’s authority to act outside his jurisdiction. As to mutual-aid agreements, Smith relies on
{¶ 33} “The police department of any township * * * may provide police protection to any county * * * without a contract to provide police protection, upon the approval, by resolution, of the board of township trustees of the township in which the department is located and upon authorization by an officer or employee of the police department providing the police protection who is designated by title of office or position, pursuant to the resolution of the board of township trustees, to give such authorization.
{¶ 34} “Chapter 2744. of the Revised Code, insofar as it applies to the operation of police departments, shall apply to any township police department * * * and to its members when such members are rendering police services pursuant to this section outside the township * * * by which they are employed.”
{¶ 35} Clinton Township asserts, however, that a mutual-aid agreement and an officer’s obligation to respond to a particular dispatch are two separate, unconnected matters and that the existence of a mutual-aid agreement is irrelevant to the consideration of whether an officer is on an emergency call for R.C. Chapter 2744 purposes. It further argues that because the text of the immunity statutes relevant to this case provides no geographic limitations, those statutes are not concerned with whether an officer was acting outside his jurisdiction. To that end, Clinton Township points out that
{¶ 36} There is no indication within R.C. Chapter 2744 that the immunity for an emergency call is conditioned on the existence of a mutual-aid agreement. Smith’s reliance on statutes such as
{¶ 37} Smith also cites
{¶ 38} Clinton Township acknowledges that there are statutory limits on an officer’s authority to act outside his jurisdiction, but it asserts that even when an officer does not have authority to make an arrest, he can still render assistance and therefore can reasonably be acting pursuant to a professional obligation to respond to a call for R.C. Chapter 2744 purposes.
{¶ 39} We agree with Clinton Township that a police officer’s authority to make an arrest is different from a police officer’s professional obligation to respond to a request for assistance and that a responding officer may provide assistance to another law-enforcement officer absent the authority to arrest. For that reason, Smith’s reliance on
{¶ 40} The term “emergency call” as defined in
{¶ 41} Because we must apply statutes that are clear on their face as written, we find no merit in Smith’s arguments that public-policy considerations require this court to establish a bright-line rule that political subdivisions do not retain their immunity for their police officer’s responses to calls outside their jurisdictions unless the officers are acting pursuant to written mutual-aid agreements or equivalent legislative resolutions and that R.C. Chapter 2744 is inapplicable if such agreements or resolutions do not exist.
{¶ 42} For all the foregoing reasons, we hold that the absence of a mutual-aid agreement between two jurisdictions is not determinative of whether a peace officer who leaves his jurisdiction is on an emergency call for purposes of
{¶ 44} The record supports the trial court’s ruling that unrebutted evidence establishes that Carpenter’s actions were undertaken pursuant to his professional obligation as a police officer
III. Conclusion
{¶ 45} We hold that the absence of a mutual-aid agreement between two jurisdictions is not determinative of whether a peace officer who leaves his jurisdiction is on an emergency call for purposes of
Judgment affirmed.
Notes
. Carpenter is not an appellee in this appeal, even though all the filings list him as such. As is detailed in this opinion, his personal liability was resolved in his favor in the courts below, and that issue has not been appealed. He therefore cannot be individually liable no matter how this case is resolved.
. Smith actually named the Clinton Township Police Department as a defendant, but Clinton Township was later substituted for the Clinton Township Police Department.
. For an individual employee of a political subdivision, a different analysis applies. See Lambert,
. The court of appeals in denying Smith’s application for reconsideration of its decision determined that even if Carpenter’s testimony may have been inconclusive as to whether a mutual-aid agreement existed, Smith had failed to present for the trial court’s consideration any probative evidence (such as an affidavit from a law-enforcement official) that a mutual-aid agreement did not exist, beyond an unsupported statement in her brief to that effect, and therefore had failed to create an issue of fact on that point for
. Carpenter testified at his deposition that he had not activated his emergency lights and siren, because he did not consider himself to be on an emergency run for purposes of the Clinton Township Police Department’s rules, regulations, and procedures. The department’s internal protocols discourage the use of emergency lights and siren except in certain situations, which include an emergency run responding to an officer-in-trouble call. Carpenter testified that although he responded in order to provide possible aid to the officer on foot who requested assistance, he was not certain the officer was “in trouble.” 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,
Dissenting Opinion
dissenting.
{¶ 46} A police officer spends a large percentage of his time in his cruiser without sovereign-immunity protection for his employer. When officers are on routine patrol, transporting suspects, or returning to the police station, their “political subdivisions are hable for injury, death, or loss to person or property” caused by the officers’ negligent operation of their motor vehicles.
{¶ 47} In this case, this court tells citizens harmed in an accident allegedly caused by the negligent driving of a police officer while outside his jurisdiction that they cannot recover damages from the officer’s employer. Yet at the place where the accident occurred, that same officer would have no authority to cite those citizens for so much as a muffler violation and would be under no duty to help them if they were in a dangerous situation. I have long argued that sovereign immunity is unconstitutional. Garrett v. Sandusky (1994),