Lotenero v. Blubaugh, Unpublished Decision (8-4-2005)

ACCELERATED DOCKET JOURNAL ENTRY and OPINION {¶ 1} This case came to be heard upon the accelerated calendar pursuant to App.R. 11.1 and Loc.R. 11.1, the record from the lower court, the briefs and the oral arguments of counsel. Plaintiff-appellant, Michael Lotenero, complains that the common pleas court erred by granting summary judgment in favor of defendants-appellees, the City of Solon and Police Officer Jeff Blubaugh. He asserts that there were genuine issues of material fact concerning whether (1) Officer Blubaugh was responding to an emergency call at the time of the collision, and (2) Officer Blubaugh was operating the police vehicle in a wanton or reckless manner. {¶ 2} We agree with appellant that genuine issues of material fact precluded summary judgment. There is conflicting evidence in the record whether Officer Blubaugh activated the lights and siren on his police cruiser before the collision. There is also conflicting evidence whether plaintiff's left turn signal was on as Officer Blubaugh approached. These facts bear directly on the question whether Officer Blubaugh acted recklessly in attempting to pass appellant on the left. Cf. Hall-Pearson v. South Euclid (Oct. 8, 1998), Cuyahoga App. No. 73429. Reversed and remanded for further proceedings. This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellant recover of said appellees his costs herein. It is ordered that a special mandate be sent to the common pleas 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. Calabrese, Jr., J. Concur. Karpinski, P.J. Concurs (SEE ATTACHED CONCURRING OPINION) CONCURRING OPINION