TIVANNI M. TAYLOR, ET AL. v. CITY OF CLEVELAND, ET AL.
No. 97597
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
July 26, 2012
2012-Ohio-3369
Boyle, P.J., Sweeney, J., and Jones, J.
JOURNAL ENTRY AND OPINION; Civil Appeal from the Cuyahoga County Common Pleas Court, Case No. CV-730639
RELEASED AND JOURNALIZED: July 26, 2012
Barbara A. Langhenry
Interim Director of Law
Catherine Ma
Assistant Director of Law
Room 106-City Hall
601 Lakeside Avenue
Cleveland, Ohio 44114-1077
ATTORNEY FOR APPELLEES
Thomas J. Silk
Obral, Silk & Associates
1370 Ontario Street
1520 Standard Building
Cleveland, Ohio 44113
{¶1} Defendant-appellant, city of Cleveland (“City“), appeals from a trial court judgment denying its motion for summary judgment on the basis of political subdivision immunity. It raises four assignments of error for our review:
“[1.] The trial court erred in holding that Officer Roger Prettyman was not responding to an emergency call when he was responding to a call to duty to transport a prisoner to the hospital as part of his professional obligation.
“[2.] The trial court erred in holding that there was a question of fact as to whether Officer Prettyman‘s actions constituted willful and wanton misconduct.
“[3.] The trial court erred in holding that [R.C.] 4511.03(A) did not apply to the facts in this case.
“[4.] The trial court erred in holding that appellee‘s newly-pleaded claim in the re-filed complaint of wanton or willful misconduct is not time-barred.”
{¶2} Although we find some merit to the City‘s appeal, we affirm the trial court‘s denial of the City‘s summary judgment motion and remand.
Procedural History and Factual Background
{¶3} In April 2007, plaintiff-appellee, Tivanni Taylor, was driving east on Prospect Avenue in Cleveland, Ohio when she was involved in a collision at the intersection of Prospect Avenue and East 30th Street with a City police vehicle operated by Officer Roger Prettyman. Officer Prettyman was driving south on East 30th Street.
{¶4} Taylor and her minor daughter filed a complaint against the City in March 2009, but voluntarily dismissed it seven months later. Taylor and her minor daughter refiled their complaint against the City in June 2010, alleging, inter alia, that Officer Prettyman failed to stop his vehicle when he could see that danger to Taylor was imminent and operated his vehicle at excessive speed. Taylor claimed that the City was liable because of the alleged negligent or willful and wanton operation of a vehicle by Officer Prettyman.
{¶5} The City moved for summary judgment, arguing that it was entitled to the protection of immunity under
Summary Judgment Standard
{¶6} An appellate court reviews a decision granting summary judgment on a de novo basis. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241
R.C. Chapter 2744
{¶7} The Supreme Court set forth a three-tiered analysis to determine whether a political subdivision is immune from tort liability: the first tier is to establish immunity under
{¶8}
{¶10} But a political subdivision is entitled to a “full defense” against liability for an employee‘s negligent operation of a motor vehicle if (1) a “member of a municipal corporation police department” was operating a motor vehicle while responding to an emergency call, and (2) the operation of the vehicle did not constitute willful or wanton misconduct.
Emergency Call
{¶11} In its first assignment of error, the City argues that the trial court erred when it found that Officer Prettyman was not responding to an emergency call. We agree.
{¶12} The issue of whether an officer is on an “emergency call” may be determined as a matter of law where triable questions of fact are not present. Howe v. Henry Cty. Commrs., 167 Ohio App.3d 865, 2006-Ohio-3893, 857 N.E.2d 664, ¶ 13, citing Lewis v. Bland, 75 Ohio App.3d 453, 457, 599 N.E.2d 814 (1991).
{¶13}
{¶14} The Ohio Supreme Court defined “call to duty” to mean “obligatory tasks, conduct, service, or functions enjoined by order or usage according to rank, occupation, or profession.” Colbert v. Cleveland, 99 Ohio St.3d 215, 2003-Ohio-3319, 790 N.E.2d 781, ¶ 13, citing Webster‘s Third New International Dictionary 705 (1986). Thus, the Supreme Court did not limit calls to duty to “inherently dangerous” situations. Id. at ¶ 13-14. Instead, it adopted a broad interpretation of “call to duty” and stated that it included situations “to which a response by a peace officer is required by the officer‘s professional obligation.” Id.
{¶15} In Rutledge v. O‘Toole, 8th Dist. No. 84843, 2005-Ohio-1010, a police officer was told by his supervisor to transport an arrestee to another jurisdiction. During transport, the officer pulled into an intersection and his police cruiser was struck by a drunk driver. The arrestee was injured in the accident and brought suit against the drunk driver, the officer, and the city. This court held that the city was immune from liability, reasoning:
We find that the transport of an arrestee to another jurisdiction constitutes an “emergency call,” given the wording of
R.C. 2744.01(A) and the Ohio Supreme Court‘s definition in Colbert. Using the same reasoning applied by the Ohio Supreme Court in Colbert, which concluded that an “emergency call” need not be an “inherently dangerous” situation, we hold an immediate or exigent circumstance is not needed to constitute an “emergency call” in a transport situation. During a transport, an officer is responding to a call to duty, fulfilling his professional obligation.
{¶17} Accordingly, we conclude that in this case, the trial court erred when it determined that Officer Prettyman was not responding to an emergency call. Officer Prettyman was transporting a prisoner, fulfilling his professional obligation. Thus, as a matter of law, Officer Prettyman was responding to an emergency call for purposes of political subdivision immunity.
{¶18} The City‘s first assignment of error is sustained.
Willful and Wanton Misconduct
{¶19} The City‘s second and third assignments of error are related, and thus, will be addressed together. In its second assignment of error, the City argues that the trial court erred when it found that genuine issues of material fact remain regarding whether Officer Prettyman operated his vehicle in a wanton or willful manner. In its third assignment of error, the City contends that the trial court erred when it found that
{¶20} “Wanton misconduct” has been defined as “the failure to exercise any care toward one to whom a duty of care 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.” Brockman v. Bell, 78 Ohio App.3d 508, 515, 605 N.E.2d 445 (1st Dist.1992).
{¶21} “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 purposely doing wrongful acts with knowledge or appreciation of the likelihood of resulting injury.” Id.
{¶22} Typically, issues regarding wantonness or willfulness are questions for the jury to decide; however, the standard for showing such conduct is high. Cunningham v. Akron, 9th Dist. No. 22818, 2006-Ohio-519, ¶ 24. Thus, when the facts presented show that reasonable minds could not conclude that the conduct at issue meets that high standard, a court may determine that such conduct is not willful or wanton as a matter of law and that determination is made considering the circumstances of each case. Ybarra v. Vidra, 6th Dist. No. WD-04-061, 2005-Ohio-2497, ¶ 10, citing Reynolds v. Oakwood, 38 Ohio App.3d 125, 127, 528 N.E.2d 578 (2d Dist.1987).
{¶23} According to an authenticated police report attached to the City‘s summary judgment motion, Officer Prettyman stated at the scene that he was driving south on East 30th Street as he approached the intersection at Prospect Avenue. He said that he “slowed as he entered the intersection at Prospect Avenue did not observe any traffic, [and] continued operating through the intersection.”
{¶24} Officer Darryl Moore, who was a passenger in Officer Prettyman‘s vehicle, stated that “we approached what seem[ed] to be a 4-way light at Prospect Ave.” Officer Moore further explained that they “approached with cautio[n] and continued across the intersection.”
{¶25} Taylor responded to the City‘s motion for summary judgment by attaching her own affidavit, as well as Ronald Richardson‘s affidavit. Richardson was the prisoner officers Prettyman and Moore were transporting to the hospital when the collision occurred. Taylor averred that she was traveling “at or below the posted speed limit” when she approached the intersection of Prospect Avenue and East 30th Street. Having a flashing yellow light in her favor, she proceeded with caution through the intersection. As she did, she said that she saw “another vehicle approaching from [her] left at what appeared to be a high rate of speed.” Taylor further averred that the vehicle “did not stop at the intersection, but travelled through the intersection, again, at what appeared to be a high rate of speed.”
{¶27} After reviewing the record before us, we agree with the City that
{¶28} We acknowledge that this court has already ruled in favor of the City regarding a complaint against it based on this exact incident. Breon Stevenson, a passenger in Taylor‘s vehicle when it collided with Officer Prettyman‘s police cruiser,
{¶29} Accordingly, we overrule the City‘s second assignment of error. And although we agree with the City that
Statute of Limitations
{¶31} Judgment denying the City‘s motion for summary judgment is affirmed and remanded.
It is ordered that appellees and appellants share costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
MARY J. BOYLE, PRESIDING JUDGE
JAMES J. SWEENEY, J., and
LARRY A. JONES, SR., J., CONCUR