McGuire v. Lovell

Thomas F. Bryant, Judge. Appellant, Harold L. McGuire, appeals from a judgment of dismissal entered by the Court of Common Pleas of Marion County upon a motion for summary judgment filed by appellees, Deputy Brian L. Lovell, Marion County Sheriff John H. Butterworth and Marion County Commissioners. *476 McGuire brought a suit in negligence arising out of an auto collision between Deputy Lovell and the pickup truck in which McGuire was an occupant. On the afternoon of November 9, 1992, Deputy Lovell was off duty, but travelling to work, westbound along State Route 309 in Marion County. Lovell was driving his sheriffs cruiser, which he takes home over night. At some point on his way to work Deputy Lovell claims to have overheard a radio dispatch concerning a burglary in progress. Lovell states he radioed dispatch to advise that he was available to assist and continued his westbound route on SR 309. It is uncontested that at approximately 3:15 p.m., Deputy Lovell drove through a red light on State Route 309 (“SR 309”) and collided with a pickup truck at the intersection of Kensington/Madison Avenue and SR 309. The truck contained two occupants in addition to McGuire, Ray Willis, seated in the middle, and Jake Steed, the driver. The three young men were travelling north on Kensington and intended to cross the intersection of Kensington and SR 309 to northbound Madison Avenue. Northbound traffic had a green light as their truck approached the intersection. Upon entering the intersection, Deputy Lovell struck the right passenger door of the truck with the left front side of his sheriff cruiser. The impact caused the truck to flip over onto its top and slide across the intersection before coming to a rest. McGuire, nearest to the point of impact, claims to have suffered a shoulder injury as a result of this collision. Appellees did not challenge this assertion in their motion for summary judgment. The appellees did claim, however, that they were not liable for McGuire’s injuries as a matter of law based on political subdivision immunity as set forth in R.C. 2744.02. The trial court granted the appellees’ motion for summary judgment, and McGuire now takes this appeal. I McGuire raises one assignment of error: “The Trial Court erred in granting Appellee’s [sic] motion for summary judgment when there existed a genuine issue as to material facts.” When reviewing summary judgment entered by a trial court, an appellate court conducts an independent review of the matters supporting the granting of the entry of summary judgment. Midwest Specialties, Inc. v. Firestone Tire & Rubber Co. (1988), 42 Ohio App.3d 6, 536 N.E.2d 411, cause dismissed (1988), 39 Ohio St.3d 710, 534 N.E.2d 94. Summary judgment is available under Civ.R. 56(C) when the movant establishes the following: (1) that there is no genuine issue as to any material fact, (2) that the moving party is entitled to judgment as a matter of law, and (3) that reasonable minds can come to but one conclusion and, viewing the evidence most strongly in favor of the nonmoving party, that *477 conclusion is adverse to the nonmoving party. Bostic v. Connor (1988), 37 Ohio St.3d 144, 524 N.E.2d 881. McGuire asserts a genuine issue of material fact exists as to whether appellees are entitled to immunity as a matter of law. Appellees argue they are immune from liability, as Deputy Lovell was responding to an “emergency call” as defined in R.C. 2744.01(A) and his misconduct, if any, was neither wanton or willful as set forth in R.C. 2744.02(B)(1)(a), nor reckless as set forth in R.C. 2744.03(A)(6)(b). Political subdivisions are afforded limited immunity for the wrongful acts of their employees. As stated in R.C. 2744.02(A)(1): “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.” The exception in division (B) states in pertinent part: “(1) Except as otherwise provided in this division, political subdivisions are hable for injury, death, or loss to person or property caused by the negligent operation of any motor vehicle by their employees upon the public roads, highways, or streets when the employees are engaged within the scope of their employment and authority. The following are full defenses to such liability: “(a) A member of a municipal corporation police department or any other police agency was operating a motor vehicle while responding to an emergency call and the operation of the vehicle did not constitute willful or wanton misconduct * * * .” A further limitation to the immunity granted to an employee of a political subdivision is found in R.C. 2744.03(A)(6), which states in part: “In addition to any immunity or defense referred to in division (A)(7) of this section and in circumstances not covered by that division, 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[.]” McGuire first argues summary judgment was not proper, as a triable issue exists as to whether Deputy Lovell was responding to an emergency call to duty. We find this argument well taken. To avail oneself of the immunity protection afforded police agencies for the negligent operation of motor vehicles, the operator of the police vehicle must have been “responding to an emergency call.” R.C. 2744.01(A). *478 An “emergency call” is defined as “a call to duty including, but not limited to, communications from citizens, police dispatches, and personal observations by peace officers of inherently dangerous situations that demand an immediate response on the part of a peace officer.” Id. Accordingly, Deputy Lovell, to have been responding to an emergency call, must have at least been called to duty. What may constitute a call to duty has been left broad by the legislature. However, clearly required is some type of “call to duty” that initiates an officer’s response. Id. At his deposition, Deputy Lovell stated that on the afternoon of November 9, 1992, he was travelling west in his sheriffs cruiser along SR 309. Lovell concedes he was off duty and merely on his way to work at that time. When asked if he was on duty when the accident occurred, Lovell responded, “I was called in or I wasn’t called in but I was responding to back up a unit.” (Emphasis added.) Lovell later clarified this response by stating that while en route to work he overheard a dispatch on his police radio concerning a burglary was in progress and “I called and told them I was on the air * * * [and] * * * asked if they wanted me.” Lovell did not state whether dispatch responded to his offer of assistance. After calling into dispatch, however, Lovell maintains, he then felt he was on duty and responding to an emergency call. Appellees also point to the deposition of Mrs. Bard, who was driving a school van behind Deputy Lovell west on SR 309, in support of their contention that Lovell was responding to an emergency call. Appellees note that Bard testified she observed Deputy Lovell’s emergency lights and heard his siren come on prior to the intersection of Kensington and SR 309. However, Bard’s testimony, when viewed in a light most favorable to McGuire as required by Civ. R. 56(C), falls short of its proffer. Bard’s testimony could support at least two equally divergent inferences: (1) that Lovell was responding to an emergency call as a result of being called upon to do so or (2) that Lovell, while off duty, was not dispatched or called upon to respond an emergency, but acted on his own accord. The nature of the call as a burglary in progress is said by the appellees to be supported by a dispatcher’s affidavit and radio logs. Appellees’ contention, however, is not well taken. The dispatcher, through her affidavit, attested only to the accuracy of the radio log report for November 9, 1992, between the hours of 2:00 p.m. and 4:00 p.m. Contrary to counsel’s assurances at oral argument, no explanation is given for the “code” numbers contained in the log report. Accordingly, we are unable to discern whether the radio traffic referred to at 15:12 hours, concerning a “code 12A,” relates to a burglary pursuit. A burglary pursuit has been recognized as a sufficient “emergency” for purposes of the immunity statute. Moore v. Columbus (1994), 98 Ohio App.3d 701, 649 N.E.2d 850; Ladina v. Medina (Jan. 31, 1990), Medina App. No. 1825, unreported, 1990 WL 7993. *479 Further, when viewing the radio logs in a light most favorable to McGuire, Lovell’s claim that he called dispatch prior to entering the chase is called into question. Though certain code numbers in the November 9, 1992 radio log are not defined, the numbers corresponding with particular sheriff officers are. “U-43” is listed for Deputy Lovell. There exist, however, no radio transmissions from or to “U-43” until after the 15:15 (3:15 p.m.) dispatcher report of an incident “involving U-43,” at “Madison and SR 309 West.” The only radio transmission apparent, from or to Deputy Lovell, is listed as “Time: 15:17 [3:17 p.m.] From: U-43 To: SO.” In Horton v. Dayton (1988), 53 Ohio App.3d 68, 558 N.E.2d 79, an officer and city sought immunity where they argued it was undisputed an officer’s collision occurred while in response to an emergency call. There, a triable issue of fact was found based, in part, on the officer’s radio card failing to evince that he was actually responding to an emergency call. Id. In Horton, it was undisputed that an emergency call had gone out to the officer. Id. Here, the radio logs do not support appellees’ contentions that a call was made to Deputy Lovell or that the nature of the alleged call was that he make a burglary pursuit. Finally, in McGuire’s reply to defendant’s motion for summary judgment, he submitted the Ohio Crash Report from the incident, which includes the statement of Deputy Lovell. Though appellees argue the entire report is not admissible for a summary judgment review, the' statement of Deputy Lovell, identified by him at his deposition, is a “written admission” pursuant to Civ.R. 56(C) and is admissible non-hearsay evidence under Evid.R. 801(D)(2)(a). Though Deputy Lovell concedes he was off duty while en route to work on November 9, 1992, in his statement Lovell reported that he “heard radio traffic that Detective Potts was enroute [sic] to an in-progress burglary.” Upon hearing this dispatch, Lovell claimed, “I radioed that I was enroute [sic] to the call to assist.” Nowhere in Lovell’s statement did he report he was dispatched or called upon to assist in the pursuit. This is further evidence that reasonable minds could disagree as to whether Lovell was actually called to duty on the afternoon of November 9,1992. See Carter v. Columbus (Aug. 15, 1996) Franklin App. No. 96APE01-103, unreported, 1996 WL 465252 (where an issue of fact remained as to whether an officer was responding to an emergency call, as there evidence was presented that on duty officer might have never actually been dispatched to an emergency, but responded on his own accord). Whether Deputy Lovell was actually called to duty in response to a burglary call depends entirely on his credibility. Lovell’s credibility, however, is called into question by the radio logs submitted to bolster it. When the resolution of a material fact issue raised upon a motion for summary judgment *480 depends solely upon the credibility of a witness, summary judgment generally should not be granted. Manley v. Rufus Club Mozambique, Inc. (1996), 111 Ohio App.3d 260, 264, 675 N.E.2d 1342, 1344-1345. Furthermore, as stated in Killilea v. Sears, Roebuck & Co. (1985), 27 Ohio App.3d 163, 167, 27 OBR 196, 200, 499 N.E.2d 1291, 1295: “Resolution of a motion for summary judgment does not include trying the credibility of witnesses. If an issue is raised on summary judgment, which manifestly turns on the credibility of the witness because his testimony must be believed in order to resolve the issue, and the surrounding circumstances place the credibility of the witness in question * * * then, the matter should be resolved at trial, where the trier of facts has an opportunity to observe the demeanor of the witness.” Accordingly, because the issue of whether Lovell was called to duty in response to an emergency depends on an assessment of his credibility, a disputed material factual issue remains and summary judgment is not proper. Id. Appellees argue that Lovell’s subjective belief that he was on duty and responding to an emergency call should be enough to demonstrate he was responding to an emergency call pursuant to R.C. 2744.02(B). Appellees cite Agnew v. Porter (1970), 23 Ohio St.2d 18, 52 O.O.2d 79, 260 N.E.2d 830; Moore v. Columbus (1994), 98 Ohio App.3d 701, 649 N.E.2d 850; and Campbell v. Colley (1996), 113 Ohio App.3d 14, 680 N.E.2d 201, in support of such contention. However, in all the above cases, the on-duty officers were expressly ordered to respond to an emergency. Id. Here, we have only Deputy Lovell’s assertion that, although off duty, he responded to a dispatch of a burglary in progress. There is absolutely no other evidence in this record that Lovell was “call[ed] to duty” to join a burglary pursuit or even personally observed an “inherently dangerous situation” necessitating his “immediate response.” R.C. 2744.01(A). Accordingly, we cannot say that an off-duty officer’s mere subjective belief that an emergency is occurring is sufficient to warrant a finding, as a matter of law, that the officer was responding to an emergency call to duty. R.C. 2744.02(B)(1)(a). Appellees warn that an interpretation of “responding to ’ an emergency call” that requires a peace officer to receive an express call to duty would prohibit an officer from pursuing a fleeing suspect passing in front of him if he were not directed to do so. First, the definition of emergency call characterizes a “call to duty” as encompassing “personal observations by peace officers of inherently dangerous situations that demand an immediate response on the part of a peace officer.” R.C. 2744.01(A). *481 Further, we do not find it an overly great burden to premise the privilege of governmental immunity upon a requirement that an off-duty sheriff deputy refrain from acting upon an overheard radio transmission without first perceiving some type of objectively recognizable call to duty. As noted, this may take the shape of radio dispatches, citizens reports, or even an officer’s personal observance of an inherently dangerous situation. What is clear, however, is that there must be some kind of occurrence known to the officer that warrants an officer’s belief that he is called to duty. McGuire’s first argument is well taken. II Upon remand it may be determined that Deputy Lovell was responding to an emergency call. Accordingly, as the trial court did not state the basis upon which summary judgment was granted, we must also address the appellees’ argument that Deputy Lovell’s operation of his sheriff vehicle was neither willful, wanton, nor reckless as a matter of law. The Supreme Court of Ohio has stated: “[I]f an officer-employee of the [a police agency] inflicts injury upon an individual while the officer is operating a motor vehicle during an emergency, and that injury is the result of the officer’s negligence, then the agency is immune from liability. However, if the officer operates his motor vehicle in a wanton or willful manner, then immunity does not lie.” York v. Ohio State Highway Patrol (1991), 60 Ohio St.3d 143, 144, 573 N.E.2d 1063, 1064. Liability could also attach to an employee of a political subdivision if his conduct may be viewed as reckless. R.C. 2744.03(A)(6)(b). Courts, however, have viewed wanton and reckless conduct interchangeably. Thompson v. McNeill (1990), 53 Ohio St.3d 102, 105, 559 N.E.2d 705, 708, fn. 1; Fabrey v. McDonald (1994), 70 Ohio St.3d 351, 356, 639 N.E.2d 31, 35; Edinger v. Allen Cty. Bd. of Commrs. (Apr. 26, 1995), Allen App. No. 1-94-84, unreported, 1995 WL 243438. “Wanton misconduct” has been described as “the failure to exercise any care whatsoever. * * * ‘[M]ere negligence is not converted into wanton misconduct unless the evidence establishes a disposition to perversity on the part of the tortfeasor.’ Such perversity must be under such conditions that the actor must be conscious that his conduct will in all probability result in injury.” Fabrey, 70 Ohio St.3d at 356, 639 N.E.2d at 35, quoting Roszman v. Sammett (1971), 26 Ohio St.2d 94. 97. 55 O.O.2d 165. 166, 269 N.E.2d 420. 423. *482 Adopting the position of 2 Restatement of the Law 2d, Torts (1965) 587, Section 500, the Ohio Supreme Court defined “recklessness” as: “ ‘The actor’s conduct is in reckless disregard of the safety of others if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.’ ” Thompson, 53 Ohio St.3d at 104-105, 559 N.E.2d at 708. Reckless misconduct was contrasted with intentional misconduct when the court noted that “ ‘[w]hile an act to be reckless must be intended by the actor, the actor does not intend to cause the harm which results from it.’ ” Id., quoting Restatement, supra, at 590, Comment/ “Willful misconduct” has been defined as “ ‘ “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.” ’ ” Edinger v. Allen Cty. Bd. of Commrs., supra, at 6, quoting Phillips v. Dayton Power & Light Co. (1994), 93 Ohio App.3d 111, 119, 637 N.E.2d 963, 968. Here, after viewing the evidence in a light most favorable to McGuire as required by Civ.R. 56(C), we are unable to say, as a matter of law, that Deputy Lovell’s conduct could not be viewed as willful, wanton, or reckless misconduct. Mrs. Bard, testified she was driving a school van several car lengths behind Lovell’s cruiser. Bard stated she “followed the cruiser into town” and noticed that as the Lovell approached the Kensington and SR 309 intersection he applied his brakes and began to slow for the red light on westbound SR 309. However, Bard stated that she then saw Lovell suddenly increase speed and turn his lights and siren on approximately two houses east of the intersection. Bard then witnessed Deputy Lovell enter the intersection and hit the “pickup-truck” behind its passenger door, flipping the truck “like matchbox cars.” Bard did not recall seeing Lovell brake or swerve prior to the collision. McGuire, seated next to the truck’s passenger door, was seated closest to the direction from which Lovell was approaching. McGuire testified he saw the sheriffs cruiser approaching the intersection moments prior to the accident and did not see emergency lights or hear a siren. McGuire then contended that the deputy’s lights were turned on immediately prior to impact. “I watched him hit the switch. The lights came on and boom.” When asked how he saw the deputy hit the switch, McGuire stated, “I seen [sic] his hand come up. That’s what I assume. I saw the lights just start to rotate.” McGuire also stated that another *483 vehicle had entered the intersection prior to their vehicle and did not stop or yield for Deputy Lovell’s cruiser. Another occupant of the truck, Ray Willis, stated in his deposition that he did not hear or see the deputy’s vehicle until McGuire exclaimed, “Oh shit.” Willis reported that he turned to his right and saw a car with “sheriff’ written on the hood, heard a brief siren, then was struck. Deputy Lovell contended that he was travelling around 40 mph west SR 309 in a 45 mph zone after he heard the report of a burglary. Lovell stated that he turned on his siren and lights between “Parkview and Sara Drive,” over a block from the intersection of Kensington and SR 309. Lovell also contended that he slowed his vehicle to 20 mph prior to entering the intersection as he saw two vehicles crossing through the intersection which “did not see me.” Finally, Lovell contended that he applied his brakes and swerved to the right in an effort to avoid hitting the pickup truck. As noted, Mrs. Bard did not recall Lovell braking or swerving. Bard further contradicted the timing of when Lovell turned on his lights and siren. McGuire and Willis placed Lovell’s cruiser even closer to the intersection prior to observing any emergency signal. Finally, Bard recalled the deputy speeding up just before entering the intersection, and not slowing, swerving, or braking as Lovell claims he did. In Brockman v. Bell (1992), 78 Ohio App.3d 508, 605 N.E.2d 445, jurisdictional motion overruled (1992), 64 Ohio St.3d 1443, 596 N.E.2d 472, the township and driver of a fire department ambulance were denied judgment as a matter of law on the issue of whether an ambulance driver’s operation of his vehicle was either willful, wanton, or reckless misconduct. There, the ambulance driver, with lights and siren on, entered an intersection on a green light and collided with a vehicle momentarily stopped in the intersection. Id. In Brockman, evidence was presented which, if believed, indicated the ambulance driver entered the intersection too fast and gave no regard to a vehicle previously observed in the intersection when making a right turn in front it. Id. Here, there is evidence which indicates that Lovell may have accelerated into the intersection against a red light. Lovell did strike the truck with enough force to flip it like “matchbox cars.” Further, Lovell’s admission that he noticed other vehicles enter the intersection without yielding to him, prior to seeing McGuire’s truck, could indicate that Lovell, though aware of hazards ahead of him, chose to proceed regardless. These facts, combined with the disputed contention that Lovell braked and swerved prior to impact, create a genuine issue of material fact as to whether Lovell’s operation of his vehicle was willful, wanton, or reckless misconduct. Brockman, 78 Ohio App.3d 508, 605 N.E.2d 445; c.f. Moore, 98 Ohio *484 App.3d 701, 649 N.E.2d 850 (where it was undisputed that the officer swerved and applied his brakes in an effort to avoid a collision within an intersection). Appellees argue that a police officer’s failure to activate emergency lights and siren, while responding to an emergency call to duty, does not alone create an issue of material fact as to whether the operation of a vehicle was willful, wanton, or reckless misconduct in the event of a collision. We agree with this general principle, as noted in Moore, 98 Ohio App.3d 701, 649 N.E.2d 850. However, the manner in which a police officer activates his emergency lights and siren cannot be ignored. The activation of such warning devices is a “significant factor” to consider when determining whether the officer’s conduct in response to an emergency call was wanton or willful misconduct. Reynolds v. Oakwood (1987), 38 Ohio App.3d 125, 127, 528 N.E.2d 578, 582. Here, when viewing the evidence most strongly in favor of McGuire, a trier of fact could conclude that Lovell’s eleventh-hour activation of his emergency lights and siren, just prior to entering the intersection, was too late to be of any use to McGuire or the other truck occupants. Though it appears undisputed that Deputy Lovell did activate his warning devices, the circumstances under which they were employed could lead to different conclusions. If McGuire’s and Willis’s testimonies are to be believed, a trier of fact could determine that the late activation of Lovell’s lights and siren could do no more than to alert McGuire and his co-occupants that they were about to be struck. As this is the only evidence of the care exercised by Lovell prior to striking the McGuire vehicle, save for his disputed contention that he braked and swerved, we cannot say as a matter of law that Lovell’s conduct was not willful, wanton, or reckless pursuant to R.C. 2744.02(B)(1)(a) and 2744.03(A)(6)(b). Judgment reversed and cause remanded. Shaw, P.J., concurs. Hadley, J., dissents.