BETHANY WENTWORTH, ET AL., PLAINTIFFS-APPELLEES, v. VILLAGE OF COLDWATER, ET AL., DEFENDANTS-APPELLANTS.
CASE NO. 10-14-18
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT MERCER COUNTY
April 13, 2015
2015-Ohio-1424
Trial Court No. 13-CIV-123
Judgment Reversed and Cause Remanded
Date of Decision: April 13, 2015
APPEARANCES:
Lynnette Dinkler and Jamey T. Pregon for Appellants
Jose M. Lopez and Jonathan S. Zweizig for Appellees
{¶1} Defendants-appellants Village of Coldwater (“Coldwater“) and Officer David M. Powell (“Officer Powell“) appeal the November 24, 2014, judgment of the Mercer County Common Pleas Court denying their
{¶2} The facts relevant to this appeal are as follows. On July 22, 2013, appellees filed a complaint against Coldwater and Officer Powell. (Doc. No. 3). That complaint was amended on July 29, 2013. (Doc. No. 9). The amended complaint alleged that on July 14, 2012, Officer Powell stopped a vehicle for operating at a high rate of speed and swerving outside marked lanes of travel. (Id.) The vehicle was being operated by Ryan Billenstein. (Id.) According to the complaint, during the traffic stop, Officer Powell detected an “odor of alcohol emanating from the vehicle but [he] did not properly conduct any field sobriety test of Billenstein.” (Id.) The complaint alleged that Officer Powell at all times was acting “within the course and scope of his employment.” (Id.)
{¶3} The complaint further alleged that
despite (1) an odor of alcohol emanating from the vehicle, (2) an admission that the passengers of the vehicle had been drinking, (3) Billenstein‘s high rate of speed, (4) Billenstein‘s erratic driving, (5) the fact that it was 2:37 A.M. on a Saturday night, (6) Billenstein‘s numerous past driving convictions, including an alcohol related offense, and (7) Billenstein‘s admission that he was traveling from a local bar, [Officer Powell] merely released Billenstein with a “warning” for a lane violation.
(Id.) The complaint indicated that “[l]ess than 60 seconds after releasing Billenstein with a ‘warning’ for a lane violation, [Officer Powell was] advised that a vehicle matching the description of Billenstein‘s * * * [was] seen leaving [Coldwater] * * * at a high rate of speed.” (Id.) Then, “[a]t approximately 2:58 A.M., less than 15 minutes after being released by [Officer Powell] * * * Billenstein [lost] control of his vehicle and crashe[d] while both (1) intoxicated and (2) traveling well in excess of the posted speed limit.” (Id.) As a result of the crash, two passengers were killed and Wentworth was “severely injured.” (Id.)
{¶4} Based on these alleged facts, the complaint asserted three claims against appellants. In the first claim, appellees assert that Officer Powell “on his own behalf and as an officer for [Coldwater] * * * acted in an intentional, malicious, reckless and/or wanton manner” by failing to enforce Ohio‘s traffic laws, by failing to carry out his duties as a police officer, by failing to properly investigate whether Billenstein was operating his vehicle with a blood alcohol content above the legal limit, and by failing to properly conduct a field sobriety test. (Id.) According to the complaint, as a result of Officer Powell‘s “intentional,
{¶5} On August 22, 2013, Coldwater and Officer Powell filed their answer to the amended complaint. Coldwater and Officer Powell denied the allegations against them and asserted that Officer Powell acted lawfully and in good faith. (Doc. No. 15). As support for this assertion, they attached a portion of Officer Powell‘s incident report from the incident in question to the answer. (Id.) Officer Powell‘s report indicated that he performed the HGN test on Billenstein and detected no clues from the test and that despite smelling an alcoholic beverage emanating from the vehicle, Officer Powell did not smell it on Billenstein specifically while speaking with him. (Id.) According to Officer Powell‘s report, Billenstein had indicated that he was not drinking but his passengers had been. (Id.)
{¶6} In addition to the denials of the allegations, Coldwater and Officer Powell asserted 23 defenses, which included immunity under
{¶7} On June 19, 2014, Coldwater and Officer Powell filed a motion for judgment on the pleadings pursuant to
{¶8} On July 2, 2014, appellees filed their response to the motion, claiming that there was an exception to Coldwater and Officer Powell‘s immunity under
{¶9} On July 7, 2014, appellants filed their reply brief in support of their motion for judgment on the pleadings. (Doc. No. 39). In the reply brief, appellants asserted that
{¶10} On August 6, 2014, appellees filed a “Motion to strike the incident report attached to defendants’ answer.” (Doc. No. 44). In the motion, appellees claimed that the police report was hearsay and not admissible, that it would not have been admissible under
{¶11} On August 19, 2014, Coldwater and Officer Powell filed a memorandum in opposition to appellees’ motion to strike, contending that courts are permitted to consider material attached to the pleadings. (Doc. No. 45). On
{¶12} On November 4, 2014, the trial court filed its judgment entry on the motion for judgment on the pleadings and on the motion to strike. Ultimately the trial court determined that neither Coldwater nor Officer Powell would be granted immunity at that time, as it was not clear that appellees could prove no set of facts that would entitle them to relief. (Doc. No. 50). The trial court thus denied Coldwater and Officer Powell‘s motion for judgment on the pleadings.1 (Id.)
{¶13} It is from this judgment that Coldwater and Officer Powell appeal, asserting the following assignments of error for our review.
ASSIGNMENT OF ERROR 1
THE TRIAL COURT ERRED IN DENYING THE VILLAGE OF COLDWATER IMMUNITY FROM THE APPELLEES’ CLAIMS.
ASSIGNMENT OF ERROR 2
THE TRIAL COURT ERRED IN DENYING OFFICER POWELL IMMUNITY FROM THE APPELLEES’ CLAIMS.
First Assignment of Error
{¶14} In Coldwater and Officer Powell‘s first assignment of error, they argue that the trial court erred in denying Coldwater immunity pursuant to
{¶15} An appellate court reviews a trial court‘s decision on a
{¶16} Under
{¶17} In this case, appellees filed a complaint alleging three claims against Coldwater and Officer Powell. In those claims, appellees alleged that they were
{¶18}
(A)(1) For the purposes of this chapter, the functions of political subdivisions are hereby classified as governmental functions and proprietary functions. Except as provided in division (B) of this section, a political subdivision is not liable in damages in a civil action for injury, death, or loss to person or property allegedly caused by any act or omission of the political subdivision or an employee of the political subdivision in connection with a governmental or proprietary function.
{¶19} The statute then enumerates five exceptions to the general grant of immunity. These five exceptions are provided in
(B) Subject to sections
2744.03 and2744.05 of the Revised Code, a political subdivision is liable in damages in a civil action for injury, death, or loss to person or property allegedly caused by an act or omission of the political subdivision or of any of its employees in connection with a governmental or proprietary function, as follows:
(1) Except as otherwise provided in this division, 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.3 * * *
* * *
(2) Except as otherwise provided in sections
3314.07 and3746.24 of the Revised Code, political subdivisions are liable for injury, death, or loss to person or property caused by the negligent performance of acts by their employees with respect to proprietary functions of the political subdivisions.(3) Except as otherwise provided in section
3746.24 of the Revised Code, political subdivisions are liable for injury, death, or loss to person or property caused by their negligent failure to keep public roads in repair and other negligent failure to remove obstructions from public roads, except that it is a full defense to that liability, when a bridge within a municipal corporation is involved, that the municipal corporation does not have the responsibility for maintaining or inspecting the bridge.(4) Except as otherwise provided in section
3746.24 of the Revised Code, political subdivisions are liable for injury, death, or loss to person or property that is caused by the negligence of their employees and that occurs within or on the grounds of, and is due to physical defects within or on the grounds of, buildings that are used in connection with the performance of a governmental function, including, but not limited to, office buildings and courthouses, but not including jails, places of juvenile detention, workhouses, or any other detention facility, as defined in section2921.01 of the Revised Code.(5) In addition to the circumstances described in divisions (B)(1) to (4) of this section, a political subdivision is liable for injury, death, or loss to person or property when civil liability is expressly imposed upon the political subdivision by a section of
the Revised Code, including, but not limited to, sections
2743.02 and5591.37 of the Revised Code. Civil liability shall not be construed to exist under another section of the Revised Code merely because that section imposes a responsibility or mandatory duty upon a political subdivision, because that section provides for a criminal penalty, because of a general authorization in that section that a political subdivision may sue and be sued, or because that section uses the term “shall” in a provision pertaining to a political subdivision.
{¶20} Finally, in the event that there is an exception to immunity established under
{¶21} In Colbert v. City of Cleveland, 99 Ohio St.3d 215, 2003-Ohio-3319, the Supreme Court of Ohio interpreted the immunity statutes as setting forth a three-tier analysis. The Court stated that “[t]he first tier is the general rule that a political subdivision is immune from liability incurred in performing either a governmental function or a proprietary function.” Colbert at ¶ 7. If the political subdivision is immune, the second-tier “requires a court to determine whether any of the five exceptions to immunity listed in
{¶23} However, if an exception to immunity is found under
Coldwater‘s Immunity
{¶24} In applying the three-tier immunity analysis to this case, appellees do not dispute that Coldwater is a political subdivision or that Officer Powell was employed by Coldwater and therefore Coldwater is generally immune from suit
{¶25} Under the second-tier analysis, we turn to whether any exceptions to Coldwater‘s immunity exist. Appellees conceded both here and at the trial court level that there are no exceptions to immunity relevant to this case in
{¶26} Despite appellees arguments, (B)(2) only allows for an exception to immunity for “proprietary functions” of political subdivisions. Pursuant to
{¶27} In its judgment entry, the trial court did not specifically find that an exception to immunity existed under
{¶28} As there are no exceptions in
Second Assignment of Error
{¶29} In Coldwater and Officer Powell‘s second assignment of error, they argue that the trial court erred in its determination that Officer Powell was not entitled to a
Officer Powell‘s Immunity
{¶30} Our analysis regarding Officer Powell‘s potential immunity differs slightly from our analysis regarding Coldwater‘s immunity. Under
{¶31} Appellees argue, and the trial court found, that appellees pled sufficient facts that if proven to be true, would establish the specific exception to Officer Powell‘s immunity under
(6) In addition to any immunity or defense referred to in division (A)(7) of this section and in circumstances not covered by that division or sections
3314.07 and3746.24 of the Revised Code, the employee is immune from liability unless one of the following applies:* * *
(b) The employee‘s acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner;
{¶32} All of the words in
{¶33} ” ‘Bad faith’ implies more than mere bad judgment or negligence. It connotes a ‘dishonest purpose, moral obliquity, conscious wrongdoing, breach of a
{¶34} In Anderson v. Massillon, 134 Ohio St.3d 380, 2012-Ohio-5711, the Ohio Supreme Court defined “wanton misconduct” as “the failure to exercise any care toward those to whom a duty of care is owed in circumstances in which there is great probability that harm will result.” Anderson at syllabus citing Hawkins v. Ivy, 50 Ohio St.2d 114 (1977).
{¶35} The Ohio Supreme Court defined “recklessness” in O‘Toole v. Denihan, 118 Ohio St.3d 374, 2008-Ohio-2574, as, “a perverse disregard of a known risk. Recklessness, therefore, necessarily requires something more than mere negligence. The actor must be conscious that his conduct will in all probability result in injury.” O‘Toole at syllabus.
{¶36} In this case appellees asserted three claims in their complaint against Officer Powell alleging “intentional, malicious, reckless, and/or wanton” conduct. Under the notice pleading requirements of
{¶37} Clearly appellees alleged some of the key legal phrases set forth in
despite (1) an odor of alcohol emanating from the vehicle, (2) an admission that the passengers of the vehicle had been drinking, (3) Billenstein‘s high rate of speed, (4) Billenstein‘s erratic driving, (5) the fact that it was 2:37 A.M. on a Saturday night, (6) Billenstein‘s numerous past driving convictions, including an alcohol related offense, and (7) Billenstein‘s admission that he was traveling from a local bar, [Officer Powell] merely released Billenstein with a “warning” for a lane violation.
{¶38} The trial court found that based on these accusations and the language contained in appellees’ pleading that it could not determine “beyond doubt that plaintiffs could prove no set of facts in support of their claims that would entitle them to the relief they seek.”
{¶39} While the trial court‘s decision may have been appropriate if the standard for liability was one of mere negligence, the definitions for bad faith, malicious, wanton, and/or reckless conduct set forth above require specific allegations of misconduct and culpability far greater than mere negligence. See Rankin v. Cuyahoga Cty. Dept. of Children & Family Servs., 118 Ohio St.3d 392,
{¶40} The factual claims that are made by appellees, taken as absolutely true, simply do not give rise to the legal conclusions that they wish to assert. Merely alleging facts that could give rise to a negligence claim (which would be barred by immunity in any event in this instance), then asserting the legal conclusion that those facts amount to “intentional, malicious, reckless, and/or wanton conduct” does not create a viable claim to defeat immunity under
{¶41} In sum, it is our conclusion that the factual allegations in this complaint are not sufficient as a matter of law to establish a claim of malicious, wanton or reckless conduct. Therefore we find that the trial court erred by not granting Officer Powell‘s
{¶42} For the foregoing reasons appellants’ first and second assignments of error are sustained and the judgment of the Mercer County Common Pleas Court
Judgment Reversed and Cause Remanded
PRESTON and WILLAMOWSKI, J.J., concur.
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