Marquez v. Ohio Dept. of Pub. Safety , 2023 Ohio 4141 ( 2023 )

[Cite as Marquez v. Ohio Dept. of Pub. Safety, 2023-Ohio-4141.]
IN THE COURT OF CLAIMS OF OHIO
LUCIA T. MARQUEZ, et al. Case No. 2022-00682JD
Plaintiffs Judge Lisa L. Sadler
Magistrate Robert Van Schoyck
v.
ENTRY GRANTING DEFENDANTS’
OHIO DEPARTMENT OF PUBLIC MOTION FOR SUMMARY JUDGMENT
SAFETY, et al.
Defendants
{¶1} Before the Court for a non-oral hearing is Defendants’ Motion for Summary
Judgment pursuant to Civ.R. 56 and L.C.C.R. 4. For the following reasons, Defendants’
Motion is GRANTED.
{¶2} Motions for summary judgment are reviewed under the standard set forth in
Civ.R. 56(C), which states, in part:
Summary judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, written admissions, affidavits,
transcripts of evidence, and written stipulations of fact, if any, timely filed in
the action, show that there is no genuine issue as to any material fact and
that the moving party is entitled to summary judgment as a matter of law.
No evidence or stipulation may be considered except as stated in this rule.
A summary judgment shall not be rendered unless it appears from the
evidence or stipulation, and only from the evidence or stipulation, that
reasonable minds can come to but one conclusion and that conclusion is
adverse to the party against whom the motion for summary judgment is
made, that party being entitled to have the evidence or stipulation construed
most strongly in the party’s favor.
“[T]he moving party bears the initial responsibility of informing the trial court of the basis
for the motion, and identifying those portions of the record before the trial court which
Case No. 2022-00682JD -2- ENTRY
demonstrate the absence of a genuine issue of material fact on a material element of the
nonmoving party’s claim.” Dresher v. Burt, 75 Ohio St.3d 280, 292, 662 N.E.2d 264(1996). To meet this initial burden, the moving party must be able to point to evidentiary
materials of the type listed in Civ.R. 56(C). Id. at 292-293.
{¶3} If the moving party meets its initial burden, the nonmoving party bears a
reciprocal burden outlined in Civ.R. 56(E), which states, in part:
When a motion for summary judgment is made and supported as provided
in this rule, an adverse party may not rest upon the mere allegations or
denials of the party’s pleadings, but the party’s response, by affidavit or as
otherwise provided in this rule, must set forth specific facts showing that
there is a genuine issue for trial. If the party does not so respond, summary
judgment, if appropriate, shall be entered against the party.
{¶4} On September 18, 2020, Plaintiffs, Lucia Marquez and Lawrence Orr, and
Ohio State Highway Patrol (OSHP) Trooper Sarah A. Korsten (Trooper Korsten)1 were
involved in a motor vehicle collision at the intersection of Lake Avenue and Griswold Road
in Elyria. (Complaint ¶¶ 4-5, Korsten Affidavit ¶¶ 3-4; Defendants’ Exhibit A; Plaintiffs’
Exhibit 2).2 Plaintiffs were traveling in a personal motor vehicle southbound on Lake
Avenue, approaching Griswold Road, to the left of Trooper Korsten in the left turn lane
with a green left turn arrow. (Plaintiffs’ Exhibit 1, Korsten Deposition 14:15-15:1; 18:1-
19:23). Trooper Korsten, in a marked OSHP cruiser in the course and scope of
employment with Defendants, was traveling southbound on Lake Avenue, stopped at a
red light in the through lane at Griswold Road, when she observed a white SUV run the
red light on northbound Lake Avenue. (Compl. ¶ 3; Korsten Aff. ¶ 3; Defs. Ex. A; Pls. Ex.
2). As a trooper with the OSHP, Trooper Korsten is tasked with promoting traffic safety
and “the majority of [her] law enforcement activities involve traffic enforcement,
responding to accidents, stopping those violating speed limits and otherwise preventing
1 Trooper Sarah A. Korsten is referred to as Sarah A. Marino in Plaintiffs’ Complaint, but Defendants
state she has since changed her name. All parties use Trooper Korsten in their briefing and the Court will
refer to her accordingly.
2 Defendants’ Exhibit A and Plaintiffs’ Exhibit 2 are copies of Trooper Korsten’s dashcam video on
the date of the collision.
Case No. 2022-00682JD -3- ENTRY
dangerous driving on Ohio’s roadways.” (Korsten Aff. ¶ 2). After witnessing the traffic
violation, Trooper Korsten checked for traffic and initiated a left u-turn. (Korsten Aff. ¶ 4;
Pls. Ex. 1, Korsten Depo. 16:24-17:1; 17:20-25; Defs. Ex. A; Pls. Ex. 2). Prior to initiating
her emergency lights, Trooper Korsten made impact with the front passenger side
bumper/fender of Plaintiffs’ vehicle. (Korsten Aff. ¶ 4; Pls. Ex. 1, Korsten Depo. 32:13-
20; Defs. Ex. A; Pls. Ex. 2). At the time of impact, Trooper Korsten was traveling
“approximately less than 5 MPH.” (Korsten Aff. ¶ 4; Defs. Ex. A; Pls. Ex. 2). Plaintiffs
claim that Trooper Korsten negligently changed lanes into their vehicle, which resulted in
injuries to each of them. (Compl. ¶¶ 8-9; 14-15). Moreover, Plaintiffs allege that Trooper
Korsten “was not engaged in an ‘emergency call’ at the time of the collision.” (Compl. ¶
7).
{¶5} Defendants assert that they are immune from liability for any negligence on
the part of Trooper Korsten pursuant to the public duty doctrine, R.C. 2743.02, and
emergency call doctrine, 2744.02, et seq. Moreover, Defendants assert that no claims
remain to be litigated because Plaintiffs have not pleaded willful or wanton conduct on the
part of Trooper Korsten as to provide a defense to the emergency call doctrine. Plaintiffs
concede that immunity analysis is appropriate pursuant to R.C. 2743.02 and R.C. 2744.02
et seq., but assert that a genuine issue of material fact exists as to whether Trooper
Korsten’s actions were willful or wanton misconduct.
{¶6} The Supreme Court of Ohio has held that “[i]n the absence of willful or wanton
misconduct, the State Highway Patrol is immune from liability for injuries caused by a
patrol officer in the operation of his vehicle while responding to an emergency call.” Baum
v. State Hwy. Patrol, 72 Ohio St.3d 469, 472, 650 N.E.2d 1347 (1995). “In adopting this
rule of law, the Supreme Court of Ohio reasoned that the state should enjoy the same
level of immunity that the General Assembly affords to counties, cities, and
townships.” Robertson v. Dept. of Pub. Safety, 10th Dist. Franklin No. 06AP-1064, 2007-
Ohio-5080, ¶ 13, citing Baum at 472. “Pursuant to R.C. 2744.02(B)(1)(a), counties, cities,
and townships are immune from liability when ‘[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.’” Id.Case No. 2022-00682JD -4- ENTRY
{¶7} For purposes of R.C. Chapter 2744, “‘[e]mergency call’ means 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.” R.C. 2744.01(A). An
emergency call in this context “need not involve an inherently dangerous situation.” Smith
v. McBride, 130 Ohio St.3d 51, 2011-Ohio-4674, 955 N.E.2d 954, ¶ 21. Rather, the
determination “turns on whether an officer was acting pursuant to a call to duty at the time
of the accident.” Id.; see also Posner v. Dept. of Pub. Safety, 10th Dist. Franklin No.
99AP-594, 2000 Ohio App. LEXIS 4496, *7 (Sept. 29, 2000) (“The focus, rather, is
whether an immediate response is required.”).
{¶8} Defendants assert, and Plaintiffs offer no argument or evidence to the
contrary, that Trooper Korsten was responding to an emergency call at the time of the
collision. While Plaintiffs plead in their Complaint that “Trooper [Korsten] was not
engaged in an ‘emergency call’ at the time of the collision,” without factual allegations,
this is a legal conclusion. Allegations in a complaint cannot appear as legal conclusions,
they must be supported by factual allegations. See Rooney v. Ohio State Hwy. Patrol,
2017-Ohio-1123, 87 N.E.3d 777, ¶ 22 (10th Dist.). The uncontroverted evidence
presented pursuant to Civ.R. 56(C) shows that Trooper Korsten was initiating pursuit of
a driver whom she personally observed run a red light. Therefore, reasonable minds can
only conclude that Trooper Korsten was responding to an emergency call at the time of
the collision.
{¶9} As previously stated, the decision of the Supreme Court of Ohio in “Baum * *
* precluded liability for negligence arising out of a state trooper’s operation of his vehicle
while responding to an emergency call * * *.” Wallace v. Ohio Dept. of Commerce, 96
Ohio St.3d 266, 2002-Ohio-4210, 773 N.E.2d 1018, ¶ 31, fn. 9. Therefore, under Baum,
Defendants are entitled to immunity as a matter of law on Plaintiffs’ claim of negligence,
which is the sole theory of liability in their Complaint. Although Plaintiffs argue that the
rule set forth in Baum does not provide immunity for willful or wanton misconduct, Plaintiffs
did not plead or subsequently amend their Complaint to reflect a claim for the “willful or
wanton misconduct” standard required for overcoming Defendants’ immunity pursuant to
R.C. 2744.02(B)(1)(a), which bars them from raising these issues on summary judgment.
Case No. 2022-00682JD -5- ENTRY
Munday v. Lincoln Heights, 1st Dist. Hamilton No. C-120431, 2013-Ohio-3095, ¶ 39 (In
relation to the “willful or wanton misconduct” standard pursuant to R.C. 2744.02(B)(1)(a),
“because [plaintiff] failed to allege that [the officer’s] operation of the police cruiser while
responding to an emergency call constituted willful or wanton misconduct, the village
successfully asserted the defense set forth in R.C. 2744.02(B)(1)(a) to [plaintiff’s] claim
[of negligence].”); see also Pitzer v. Blue Ash, 1st Dist. Hamilton No. C-180033, 2019-
Ohio-2889, ¶ 7 (In relation to the “willful or wanton misconduct” standard pursuant to R.C.
2744.02(B)(1)(b), “[plaintiff’s] failure to plead correctly, or subsequently amend the
complaint to reflect this standard, barred [plaintiff] from raising these issues on summary
judgment.”); Williams v. Stefka, 8th Dist. Cuyahoga No. 96145, 2012-Ohio-353, ¶ 16 (In
relation to the “willful or wanton misconduct” standard pursuant to R.C. 2744.02(B)(1)(c),
“under such circumstances a party is precluded from arguing genuine issues of material
fact as to willful and wanton misconduct on summary judgement.”).
{¶10} It is noted that, in addition to the immunity furnished under Baum and
R.C. 2744.02(B)(1)(a), Defendants argue they are also immune from liability under the
public duty rule set forth in R.C. 2743.02(A)(3)(a) (“Except as provided in division (A)(3)(b)
of this section, the state is immune from liability in any civil action or proceeding involving
the performance or nonperformance of a public duty.”). Because Baum and R.C.
2744.02(B)(1)(a) plainly confer Defendants with immunity on Plaintiff’s claim of
negligence, however, the Court need not determine the applicability of the public duty
rule, which is independent of the rule established in Baum. See Wallace at ¶ 31, fn. 9
(“Baum did not, however, involve the public-duty rule.”); Dunlap v. Ohio Dept. of Pub.
Safety, Ct. of Cl. No. 2016-00302 (June 7, 2017).
{¶11} In summary, Defendants have met their burden on summary judgment.
There are no genuine issues of material fact. Defendants are immune from Plaintiffs’
claim of negligence and are entitled to judgment as a matter of law.
{¶12} For these reasons, Defendants’ Motion for Summary Judgment is
GRANTED and judgment is hereby rendered in favor of Defendants. Court costs are
assessed against Plaintiffs. The Clerk shall serve upon all parties notice of this judgment
and its date of entry upon the journal.
Case No. 2022-00682JD -6- ENTRY
LISA L. SADLER
Judge
Filed October 20, 2023
Sent to S.C. Reporter 11/16/23