Lewis v. Bland ( 1991 )

In reviewing a summary judgment, a court must follow the standard set forth in Civ.R. 56(C), which specifically provides that before summary judgment may be granted, it must be determined that:

"(1) No genuine issue as to any material fact remains to be litigated;

"(2) the moving party is entitled to judgment as a matter of law; and

"(3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party." Temple v. Wean United, Inc. (1977), 50 Ohio St. 2d 317,327, 4 O.O.3d 466, 472, 364 N.E.2d 267, 274.

R.C. 2744.02 sets the parameters for the liability of political subdivisions for the tortious acts committed by their employees. York v. Ohio State Highway Patrol (1991), 60 Ohio St. 3d 143,144, 573 N.E.2d 1063, 1064. Pursuant to R.C.2744.02(B)(1), "* * * political subdivisions are liable for injury, death, or loss to persons 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." R.C. 2744.02(B)(1)(a) further provides that liability does not attach where "[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 motor vehicle did not constitute willful or wanton misconduct." As stated in York at 144, 573 N.E.2d at 1064:

"In other words, if an officer-employee * * * 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."

Pursuant to these principles, the primary issues before the trial court were the applicable standard of conduct, duty, and causation. If officers are responding to an emergency call, a municipality will not be held liable for negligence which produces injury, death or loss to persons or property, but will be held liable if the officer's conduct is wanton or willful.Adams v. Peoples (1985), 18 Ohio St. 3d 140, 143, 18 OBR 200, 202, 480 N.E.2d 428, 431.

The question whether an officer is responding to an emergency call is a genuine issue of material fact. Metsker v. Exline (Dec. 30, 1986), Franklin App. No. 86AP-717, unreported, 1986 WL 15193. Whether misconduct is willful or wanton is a jury question. Peoples v. Willoughby (1990), 70 Ohio App. 3d 848,592 N.E.2d 901, citing Matkovich v. Penn Central Transp. Co. (1982),69 Ohio St. 2d 210, 214, 23 O.O.3d 224, 226-227, 431 N.E.2d 652,655. Whether the officers' conduct was negligent and whether the negligence proximately caused the plaintiffs' injuries are also questions of fact. Stark v. Los Angeles (1985), 168 Cal. App. 3d 276,284-285, 214 Cal. Rptr. 216, 221-222. Questions concerning such issues as negligence, recklessness and proximate causation are also jury questions. Kuzmics v. Santiago (1978),256 Pa. Super. 35, 41, 389 A.2d 587, 590.

While there may be police chase cases which may be appropriately disposed of through summary judgment, i.e., Ladinav. Medina (Jan. 31, 1990), Medina App. No. 1825, unreported, 1990 WL 7993, I do not believe that this is such a case. A review of the summary judgment materials supports this conclusion.

Based upon these principles, there were substantial genuine issues of material fact in the case sub judice rendering summary judgment inappropriate. As I believe that the per curiam opinion of this court adheres to an outdated perspective of causation which does not recognize that multiple actors can combine to provide causation in a given instance, and fails to recognize the genuine issues of material fact before the trial court, I respectfully dissent.