Adams v. Peoples

Clifford F. Brown, J. “In the absence of a statute providing immunity, the defense of sovereign immunity is not available to a municipal corporation * * Strohofer v. Cincinnati (1983), 6 Ohio St. 3d 118, syllabus. See, also, Haverlack v. Portage Homes, Inc. (1982), 2 Ohio St. 3d 26; Enghauser Mfg. Co. v. Eriksson Engineering Ltd. (1983), 6 Ohio St. 3d 31; and Longfellow v. Newark (1985), 18 Ohio St. 3d 144. In the present case the court is called upon to interpret the immunity provided a municipal corporation by R.C. 701.02. This is not the first case in which this court has been presented with this question since the abrogation of municipal sovereign immunity in Haverlack, supra. King v. Williams (1983), 5 Ohio St. 3d 137, provides in paragraph three of the syllabus that: “A municipal corporation and its individual employee, acting within the scope of R.C. 701.02, are immune from liability for negligence in the performance or non-performance of their acts. * * *” (Emphasis added.) The issue in the present case is somewhat different than that presented in King. Appellees allege that the conduct of the appellant’s employee, Police Officer Baker, which caused the injuries of the appellees, was willful and/or wanton. R.C. 701.02 states in pertinent part: “The defense that the officer, agent, or servant of the municipal corporation was engaged in performing a governmental function, shall be a full defense as to the negligence of: “(A) Members of the police department engaged in the operation of a motor vehicle while responding to an emergency call.” (Emphasis added.) The statutory provision of immunity for a municipality pursuant to R.C. 701.02 relates only to negligent actions. Therefore, a city may be held liable for any tortious conduct of its police officers which is found to be willful and/or wanton. This liability of the city of Willoughby exists even though the police officer may not be personally liable pursuant to the last paragraph of R.C. 701.02, which provides: “Policemen shall not be personally liable for damages for injury or loss to persons or property and for death caused while engaged in the operation of a motor vehicle while responding to an emergency call.” Also by reason of this last paragraph of R.C. 701.02, the court of appeals correctly decided that Baker was not personally liable either for his negligent acts or for his willful or wanton acts causing injury or property loss while responding to an emergency call. Appellant argues that it cannot be held liable for the tortious conduct of its employee under the doctrine of respondeat superior when such employee is immune from the suit. Such argument is rejected by this court and by a majority of jurisdictions which have addressed the issue.1 This ex [143] act issue is addressed in the Restatement of the Law 2d, Agency (1958) 468-469, Section 217: “In an action against a principal based on the conduct of a servant in the course of employment: “(a) * * * “(b) The principal has no defense because of the fact that: * * “(ii) the agent had an immunity from civil liability as to the act.” The language of R.C. 701.02 is clear. The court of appeals correctly concluded that the city is extended immunity in cases involving motor vehicle accidents in which police officers are responding to emergency calls, but only as to the negligent acts of the officers. The appellees have alleged that the actions of Officer Baker were willful and/or wanton in light of the conditions surrounding the accident. Therefore, the judgment of the court of appeals is affirmed. Judgment affirmed. Celebrezze, C.J., Sweeney and Douglas, JJ., concur. Locher, Holmes and Wright, JJ., dissent. Footnotes [1] See Annotation (1965), 1 A.L.R. 3d 677, 689-699, and the cases cited therein for discussion of the impact of an immunity between parties in a suit against the employer.