SMITH, APPELLANT, v. McBRIDE ET AL.; CLINTON TOWNSHIP, APPELLEE, ET AL.
No. 2010-0809
Supreme Court of Ohio
September 20, 2011
130 Ohio St.3d 51, 2011-Ohio-4674
Submitted April 20, 2011, at the Guernsey County Session
Judgment accordingly.
O‘CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O‘DONNELL, LANZINGER, CUPP, and McGEE BROWN, JJ., concur.
Jonathan E. Coughlan, Disciplinary Counsel, and Heather L. Hissom, Assistant Disciplinary Counsel, for relator.
Doreen Marie Cantrell, pro se.
[Cite as Smith v. McBride, 130 Ohio St.3d 51, 2011-Ohio-4674.]
CUPP, J.
{¶ 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 Carpenter1 was at his police headquarters in Clinton Township, an unincorporated area of Franklin County, when he heard a general dispatch call from a Franklin County sheriff‘s deputy requesting assistance because the deputy was on foot and was pursuing a fleeing suspect. The call originated about two miles from Carpenter‘s location in what Carpenter knew to be a high-crime area outside of Clinton Township‘s jurisdiction.
{¶ 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,2 among others. After filing deposi-
{¶ 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. 126 Ohio St.3d 1543, 2010-Ohio-3855, 932 N.E.2d 338. The first proposition asserts that absent a mutual-aid agreement or equivalent legislative resolution, a police officer does not have a professional obligation to respond to a call outside his jurisdiction when he is not engaged in hot pursuit and therefore cannot be on an emergency call for purposes of immunity under
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
{¶ 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. 2744.02(B)(1)(a) and 2744.01(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, 99 Ohio St.3d 215, 2003-Ohio-3319, 790 N.E.2d 781, at ¶ 1, this court noted that a political subdivision generally will not be liable for damages caused by a police officer‘s negligent operation of a motor vehicle if the officer was responding to an emergency call when the accident occurred. In that case, we held that an emergency call for
{¶ 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., 99 Ohio St.3d 215, 2003-Ohio-3319, 790 N.E.2d 781, ¶ 13, quoting Webster‘s Third New International Dictionary (1986) 705. We concluded that for purposes of
{¶ 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. Mutual-Aid Agreements and R.C. Chapter 2744
{¶ 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), 37 Ohio St.3d 222, 525 N.E.2d 468, and various statutes outside of
{¶ 28} Smith asserts that in Sawicki, “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, 37 Ohio St.3d at 227, 525 N.E.2d 468, any “‘officer who respond[s] [will do] so with only the authority and the insurance protection of an ordinary citizen.‘”
{¶ 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
{¶ 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
{¶ 36} There is no indication within
{¶ 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
{¶ 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
{¶ 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
{¶ 43} Smith‘s propositions of law focus on the alleged relationship between mutual-aid agreements and
{¶ 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 officer5 and were a legitimate response to a general call for assistance regarding a nearby deputy sheriff on foot pursuing a fleeing suspect after dark in a high-crime area. There was no error in the holdings of the trial and appellate courts that Carpenter was on an emergency call as a matter of law when the accident occurred.
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.
O‘CONNOR, C.J., and LUNDBERG STRATTON, O‘DONNELL, LANZINGER, and McGEE BROWN, JJ., concur.
PFEIFER, J., dissents.
{¶ 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 liable 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), 68 Ohio St.3d 139, 144, 624 N.E.2d 704 (Pfeifer, J., concurring). I have accepted that that is a losing battle. But can we at least agree that the sovereign has no immunity where it is not the sovereign?
Brian G. Miller Co., L.P.A., and Brian G. Miller, for appellant.
Surdyk, Dowd & Turner Co., L.P.A., Jeffrey C. Turner, Boyd W. Gentry, and Joshua R. Schierloh, for appellee.
Murray & Murray Co., L.P.A., Margaret M. Murray, and Michael Stewart, urging reversal for amicus curiae Ohio Association for Justice.
Schroeder, Maundrell, Barbiere & Powers and Jay D. Patton, urging affirmance for amicus curiae Ohio Association of Civil Trial Attorneys.