McGuire v. Lovell , 128 Ohio App. 3d 473 ( 1999 )

The majority has concluded that the Marion County Common Pleas Court erred in dismissing appellant's complaint upon a motion for summary judgment filed by appellees. However, for the following reasons, I respectfully dissent from that conclusion.

As the majority notes, summary judgment is appropriate when (1) there is no genuine issue of material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) 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. State ex rel. Howard v. Ferreri (1994),70 Ohio St.3d 587, 589; State ex rel. Parsons v. Fleming (1994),68 Ohio St.3d 509, 511; Turner v. Turner (1993), 67 Ohio St.3d 337,339-340.

Furthermore, when reviewing a summary judgment motion, we must independently review the record to determine if summary judgment was appropriate. Morehead v. Conley (1991), 75 Ohio App.3d 409,411-412. Therefore, we will review the trial court's granting of summary judgment de novo. Brown v. Scioto Bd. ofCommrs. (1993), 87 Ohio App.3d 704, 711.

Additionally, it is well settled that the party seeking summary judgment bears the initial burden of showing that no genuine issue of material fact exists for trial. Dresher v. Burt (1996), 75 Ohio St.3d 280, 296; Mitseff v. Wheeler (1988),38 Ohio St.3d 112, 115. However, the nonmoving party "may not rest upon the mere allegations or denials of his pleadings." Chaney v.Clark Cty. Agricultural Soc. (1993), 90 Ohio App.3d 421, 424. Instead, once the initial burden has been met, the non-moving party then has a reciprocal burden to set forth specific facts showing that there is a genuine issue for trial. Id.; Dresher,supra,at 293. Otherwise, the trial court shall enter summary judgment, if appropriate, against the nonmoving party. Dresher,supra, at 293.

In the present case, the majority found that a triable issue existed as to whether Deputy Lovell was responding to an emergency call. The majority apparently believes that under R.C.2744.01(A), a police dispatch only rises to the level of an emergency call when the officer is personally dispatched to the scene of an emergency.

However, the legislature has broadly defined what constitutes an emergency call. Specifically, R.C. 2744.01(A) defines an "emergency call" as "a call to duty including, but not limited to * * * police dispatches * * * of inherently dangerous situations that demand an immediate response on the part of a peace officer.Id. (emphasis added). By incorporating the language "including, but not limited to," the legislature has not limited emergency calls to those situations where an officer is personally dispatched to the scene of an alleged crime. Therefore, I refuse to restrict the rather open-ended definition of "emergency call" as provided by the legislature.

Moreover, I have found no Ohio case where a court has specifically required that an officer be personally dispatched to an emergency in order to be eligible for immunity. Therefore, having found no legislative or judicial authority stating that an officer must be personally dispatched to an emergency, I cannot agree with the majority holding that, under these circumstances, Deputy Lovell was not called to duty.

Furthermore, the majority is apparently concerned that Deputy Lovell may have acted on his own accord upon hearing the dispatch and therefore was not "called to duty" as required by R.C.2744.01(A).¹ However, it has been held that police officers have a continuing duty to obey and enforce the criminal law whether on or off duty. Warrensville Hts. v. Jennings (1991),58 Ohio St.3d 206, 211; R.C. 2921.44(A)(2) (An officer is subject to criminal liability if he negligently fails to prevent or halt the commission of an offense or to apprehend an offender, when it is in his power to do so alone or with available assistance). Therefore, a police officer need not be officially "called to duty."

Nevertheless, the majority apparently is further troubled by the fact that there are no radio transmissions from Deputy Lovell to the dispatcher until after Deputy Lovell's accident.² However, police officers have no duty to independently determine whether an actual emergency exists. Agnew v. Porter (1970),23 Ohio St.2d 18, 25. Instead, they must be able to respond to the calls of others that help is needed in order to carry out their duty to protect the public. Id. Therefore, I do not believe Deputy Lovell had any duty or obligation to "cross-examine" the dispatcher as to whether a real emergency existed and/or whether she wanted him to respond.

The facts indicate that the dispatcher reported that a Code 12A suspect was fleeing. The majority believes that because the record contains no explanation as to what "Code 12A" stands for, they cannot say that an emergency existed for the purposes of immunity. Cf. Moore v. Columbus (1994), 98 Ohio App.3d 701, 706 (holding that R.C. 2744.01 does not limit an "emergency call" only to those situations where there is an inherently dangerous situation or when human life is in danger). However, Ohio courts have consistently recognized that it is the urgent call to duty rather than the actual degree of danger that triggers the immunity afforded by R.C. 2744.02. Agnew, supra; Fish v. Coffey (1986), 33 Ohio App.3d 129, 130.

In the present case, the record indicates that the dispatcher reported that a "Code 12A suspect vehicle" had been seen. I believe that the words "suspect vehicle" are enough to illicit a quick response by any officer in the vicinity. The very words "suspect vehicle" connote that a potential criminal has recently committed a crime and is currently in the process of fleeing the scene. Therefore, I believe that such words would invoke a sense of "urgent call to duty" in any near by officer. See Moore,supra, at 707 citing Spencer v. Hine (1958), 107 Ohio App. 505,507 (holding that "[p]rompt and efficient investigation of crime and possible crime is the strongest deterrent to the commission of other offenses and is in the clear public interest").

Moreover, contrary to the majority's assertions, the material issue of whether Deputy Lovell was called to duty does not depend entirely upon his credibility. The radio logs support his testimony that the dispatcher reported a suspect vehicle near Deputy Lovell's location at that time. As I previously stated, the very words "suspect vehicle" connote that an offense was occurring which demanded an immediate response by the police. The call was not directed toward any particular officer nor, as previously stated, was Deputy Lovell required to ask the dispatcher if this was truly an emergency situation prior to responding. Therefore, I believe that Deputy Lovell met his burden of proof in the present case and thus is entitled to immunity.

Further, the appellant has offered no evidence to the contrary disputing that the dispatcher's words "suspect vehicle" did not constitute a call to duty. See Chaney, supra, at 424;Dresher, supra, at 293 (holding that the nonmoving party has a reciprocal burden to set forth specific facts showing that there is a genuine issue for trial once the moving party has met its burden). Having produced no corroborating evidence to support his own self-serving allegations that the dispatch was not an emergency call, I find that appellant has failed to meet his burden for summary judgment purposes. Therefore, without any corroborating evidence to rebut Deputy Lovell's contentions, there can be no disputed material fact.

Additionally, contrary to the majority's reliance on Hortonv. Dayton (1988), 53 Ohio App.3d 68, a triable issue of fact as to whether Deputy Lovell was responding to an emergency call is not present in this case. In Horton, supra, the court based its finding that a triable issue of material fact existed on two factors. First, the court found that there was no record showing that the officer was actually responding to an emergency call when he was involved in an accident. Additionally, the officer had not activated his lights and siren prior to his involvement in an accident. Based on these two factors together, the court concluded that there was a genuine issue of material fact as to whether the officer was responding to an emergency call. Id. at 73 (holding that "the absence of any reference to the emergency call on the police officer's radio card on the day in question,and the fact that he was not using his siren and overhead light * * * would support an inference that Dayton's police officer was not, in fact, responding to an emergency call at the time of collision) (emphasis added). Therefore, the court based its conclusion on the absence of both factors.

In the present case, contrary to Horton, supra, there is evidence that Deputy Lovell had activated his lights and siren prior to the collision. All four witnesses, including appellant's own witnesses, testified that Deputy Lovell's lights and siren were on prior to the collision. The only discrepancy in their testimony concerns when Deputy Lovell activated his lights and siren.

According to Deputy Lovell's testimony, he activated his lights and siren a couple of intersections before the collision occurred. Ms. Bard, an impartial eyewitness, testified that she saw Deputy Lovell activate his lights and siren prior to entering the intersection where the accident occurred. Next, William Ray Willis, a passenger in the truck that was hit, testified that he heard a siren prior to being hit. Finally, appellant, another passenger in the truck, testified that he saw Deputy Lovell activate his lights prior to impact. No one disputes that Deputy Lovell had his lights and siren on before the accident, only when they were activated. Therefore, there is no genuine issue regarding that fact. Instead, the record reflects that Deputy Lovell had activated his lights and siren at some point prior to impact.

I should note that neither R.C. Chapter 2744 nor Ohio case law requires a police officer to operate his lights or siren in order to be deemed to be responding to an emergency call for the purposes of immunity from civil liability. Horton, supra, at 71. Such operation is only one factor to be considered in determining whether an officer was responding to an emergency call. Id. at 72 (holding that the fact that the officer had not turned on his siren and lights was not sufficient in itself to establish that he was not responding to an emergency call).

Additionally, R.C. 4513.21 provides, in pertinent part, as follows:

* * * Every emergency vehicle shall be equipped with a siren * * * * Such equipment shall not be used except when such vehicle is operated in response to an emergency call or is in the immediate pursuit of an actual or suspected violator of the law * * * *

Consequently, a police officer may only activate his lights and siren when he is on an emergency call or in the immediate pursuit of an actual or suspected violator of the law. Moore, supra, at 709, 649 N.E.2d at 855.

In the present case, it is undisputed that Deputy Lovell had activated his lights and siren prior to the accident. Therefore, pursuant to R.C. 4513.21, one must presume that Deputy Lovell was responding to an emergency call or in the pursuit of an actual or suspected violator of the law.

The record further indicates that the dispatcher reported that a suspect vehicle had been sighted. Deputy Lovell, a police officer on his way to work, heard the dispatch. Then, within three minutes of hearing the dispatch,³ he activated his lights and siren. At the time of the accident, he was headed in the general vicinity of the suspect's current location. Therefore, I cannot agree with the majority's finding that the trial court erred in finding no genuine issue of material fact as to Deputy Lovell's responding to an emergency call, especially in light of R.C. 4513.21.

Finally, I would add that the conclusion advocated by the majority severely undercuts the duties and expectations of police officers. The construction of R.C. 2744.02 urged by the majority could have the effect of discouraging any off-duty police officer from ever responding to a potential crime or emergency absent an official call to duty. See Held v. Rocky River (1986), 34 Ohio App.3d 35,38. The Ohio Supreme Court has mandated that police officers have a continuing duty to obey and enforce the criminal law whether on or off duty. Warrensville Hts, supra, at 211. The majority opinion in this case severely undercuts this mandate. Therefore, I must decline to adopt the majority's proposal.

In conclusion, contrary to the majority's assertions, the record does contain sufficient evidence that Deputy Lovell was responding to an emergency call when he collided with appellant's truck. Assuming that appellees properly carried their burden of production, appellant then had a reciprocal burden of rebuttal to produce evidentiary material supporting their position. SeeChaney, supra, at 424 (holding that the nonmoving party "may not rest upon the mere allegations or denials of his pleadings"). Appellant failed to produce sufficient corroborating evidence to support his position. Therefore, I can find no error in the trial court's decision to grant summary judgment in the present case. Accordingly, I dissent from the majority and would overrule appellant's first assignment of error and affirm the trial court judgment.

Additionally, I would respectfully dissent from the majority's conclusion that Deputy Lovell's actions may have been willful, wanton or reckless, thereby precluding him from any potential immunity under R.C. 2744.03.

As noted by the majority, R.C. 2744.03(A)(6)(b) precludes immunity if an employee's "acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner." Furthermore,

'Malice' refers to the willful and intentional design to do injury. ``Bad faith' connotes a ``dishonest purpose, moral obliquity, conscious wrongdoing, breach of a known duty through some ulterior motive or ill will partaking of the nature of fraud.' ``Reckless' conduct refers to an act done with knowledge or reason to know of facts that would lead a reasonable person to believe that the conduct creates an unnecessary risk of physical harm and that this risk is greater than that necessary to make the conduct negligent.

Piro v. Franklin Twp. (1995), 102 Ohio App.3d 130, 139 (citations omitted). Moreover, the "term ``willful and wanton misconduct' connotes behavior demonstrating deliberate or reckless disregard for the safety of others." Moore, supra, at 708.

In the present case, I have previously determined that Deputy Lovell was responding to an emergency call. Upon hearing the dispatch, Deputy Lovell activated his lights and sirens. At the time of the accident, he was headed in the general vicinity of the suspect's current location.

Deputy Lovell testified that he slowed down prior to entering the intersection where the accident occurred. Additionally, he testified that, upon seeing appellee's truck, he applied his brakes and swerved to the right. See Moore, supra, (finding no reckless conduct when an officer swerved and applied his brakes prior to impact despite the officer's failure to activate his lights and speeding through an intersection); Cf. Edinger v. Boardof Allen Cty Com'rs (April 26, 1995), Allen App. No. 1-94-84, unreported (we held that a police officer who is speeding without his lights on and then collides with another car may be guilty of wanton, reckless or willful misconduct).

Additionally, contrary to the majority's assertions, Ms. Bard did recall seeing Deputy Lovell brake and veer to the right upon being shown her statement given at the time of the accident. Granted, Ms. Bard originally testified that she did not remember if Deputy Lovell had swerved or braked. However, she did admit it was possible that he had and she just could not remember. Then, later on during her deposition, appellant's own attorney handed Ms. Bard a statement she had made to police shortly after the accident. She admitted that in the report, she had stated that Deputy Lovell braked and veered to the right prior to hitting the truck.⁴ Further, she admitted that, according to her statement, the truck did not try to avoid the accident.

Ms. Bard's statement was offered for the sole purpose of refreshing her memory as she had earlier testified that she could not remember if Deputy Lovell had swerved or braked prior to hitting the truck.⁵ Ms. Bard's statement, claiming that she saw Deputy Lovell break and swerve prior to impact, was given shortly after the accident occurred. Her deposition testimony where she initially testified that she could not recall if Deputy Lovell had braked or swerved was given four years after the accident. Therefore, contrary to the majority, I would find Ms. Bard's testimony regarding her observations contained in the accident report to be more accurate as it was given near the time of the incident. Furthermore, Ms. Bard herself admitted that her earlier statement would be more accurate than her current testimony.⁶ Accordingly, I would conclude that her revised testimony supports Deputy Lovell's version of what occurred.⁷

Finally, the Ohio Supreme Court has concluded that where a driver fails to exercise any care whatsoever toward those to whom he owes a duty of care, and his failure occurs under circumstances in which there is great probability that harm will result, such failure constitutes wanton misconduct. McKinney v. Hartz RestleRealtors, Inc. (1987), 31 Ohio St.3d 244, 246; Pisel v. BakingCo. (1980), 61 Ohio St.2d 142, 143; Hawkins v. Ivy (1977),50 Ohio St.2d 114, syllabus. Deputy Lovell, as a police officer, owed appellant a duty of care. However, I find that Deputy Lovell's testimony, along with Ms. Bard's testimony regarding her statement to the police, supports a finding that there is no genuine issue of material fact as to whether Deputy Lovell exercised a duty of care toward appellant.⁸ Therefore, I disagree with the majority conclusion that Deputy Lovell may have acted recklessly, willfully or wantonly.

Accordingly, I would affirm the trial court as to appellant's first assignment of error. Additionally, I would find that Deputy Lovell's conduct was not willful, wanton, or reckless pursuant to R.C. 2744.02(B)(1)(a) and R.C. 2744.03(A)(6)(b). Therefore, I respectfully dissent from the majority decision.

¹ Specifically the majority found that an eye witness' testimony could support two possible 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 to an emergency, but acted on his own accord.

² Although Deputy Lovell testified at his deposition that he contacted the dispatcher before proceeding to respond, the record fails to contain any corroboration that he ever contacted the dispatcher upon hearing the dispatch.

³ The elapse of time between the dispatch message and Deputy Lovell's accident with appellant.

⁴

Q: And the officer did break [sic] and veer to the right and hit the truck —

A: That's what —

Q: — according to the statement?

A: That's what the statement says.

⁵

Q: And how did — did the officer — do you remember if he ever swerved?

A: I don't remember that.

Q: Okay. With regard to you said you didn't remember the brakes or didn't remember the officer swerving, is it possible that he did and you just don't remember it?

A: It's possible. It's — —

Q: Okay.

A: — been awhile.

⁶

Q: Okay. Would the statement that you just read would that be an accurate statement of what you had — what you thought happened the date the accident occurred?

A: It's probably more than accurate than what I can remember now.

Q: Okay. So if there were some inconsistencies in what you said today and what was in this statement, what you said in the statement was probably more correct?

A: I would say. Yes.

⁷ I find this especially true in light of the fact that it was appellant's own attorney who refreshed Ms. Bard's memory regarding Deputy Lovell's actions prior to hitting his client's truck. Specifically, the attorney cross-examined Ms. Bard as follows:

Q: And the officer did break and veer to the right and hit the truck —

A: That's what —

Q: — according to the statement?

A: That's what the statement says.

⁸ I would further note that Deputy Lovell's alleged misconduct in entering an intersection on a red light without stopping may arguably constitute negligence. However, "mere negligence is not converted into wanton misconduct unless the evidence establishes a disposition to perversity on the part of the tortfeasor."Fabrey v. McDonald Police Dept. (1994), 70 Ohio St.3d 351, 356 citing Roszman v.Sammett (1971), 26 Ohio St.2d 94, 96-97. Moreover, "[s]uch perversity must be under such conditions that the actor must be conscious that his conduct will in all probability result in injury."Id. citing Roszman, supra, at 97. I find no such evidence concerning Deputy Lovell's conduct here that rises to the level of wanton misconduct.