Carozza v. Lusk

[Cite as Carozza v. Lusk, 2022-Ohio-3272.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
LARRY E. CAROZZA, et al., :
Appellees, : CASE NO. CA2021-12-155
: OPINION
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:
JAMES LUSK, et al., :
Appellants. :
CIVIL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CV 2020 10 1554
Slater & Zurz, LLP, and Mark A. Ropchock and Richard V. Zurz, Jr., for appellees.
Surdyk, Dowd & Turner Co., L.P.A., and Jeffrey C. Turner and David B. Shaver, for
appellants.
HENDRICKSON, J.
{¶ 1} Appellants, James Lusk ("Lusk") and the city of Middletown, Ohio ("City"),
appeal the denial of their respective motions for summary judgment by the Butler County
Court of Common Pleas. For the reasons discussed below, we reverse the trial court's
denial of summary judgment as to both Lusk and the City.
{¶ 2} On January 11, 2017, at 7:17 a.m., emergency dispatchers received a call
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about a child who had been struck by a car and was breathing, but not responsive, at
Highland Street and Jefferson Road in Middletown. At 7:18 a.m., units from the Middletown
Police Department were dispatched to the scene. That day, Sergeant Steven Ream was
responsible for ensuring officers were dispatched appropriately to all calls received. Due
to the serious nature of the call, Sergeant Ream testified that his expectation was that all
available officers would respond. At 7:18 a.m., Officer Lusk entered his Evidence
Technician vehicle, activated his emergency lights and siren, and left the police station to
respond.
{¶ 3} Leaving the station, Officer Lusk turned right onto Reinartz Boulevard. He
encountered a red light at the intersection of Reinartz Boulevard and Verity Parkway. Dash
camera video footage from his cruiser shows an Ohio Department of Transportation salt
truck and other traffic at that intersection. Officer Lusk cleared the intersection, proceeding
through the red light. He accelerated, continuing eastbound on Reinartz Boulevard through
light traffic. He then drove through a green light at the intersection of Reinartz Boulevard
and Clark Street, reaching a top of speed of approximately 60 miles per hour.
{¶ 4} Officer Lusk began braking as he approached a red light at the intersection of
Reinartz Boulevard and Charles Street. He saw a school bus turn westbound onto Reinartz
Boulevard from southbound on Charles Street, but saw no other traffic. After having slowed
to approximately 35 miles per hour, and believing the intersection was clear, Officer Lusk
proceeded into the intersection. At the same time, Larry Carozza was driving southbound
on Charles Street in his Kalmar Ottawa T2 terminal-tractor, and was stopped at a red light
at the intersection with Reinartz Boulevard. When the light turned green, Carozza drove
into the intersection at about 15–20 miles per hour after the school bus made a righthand
turn onto westbound Reinartz in front of him. Carozza did not see Officer Lusk approaching,
nor did Officer Lusk see Carozza. As a result, Officer Lusk's cruiser collided with Carozza's
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truck.
{¶ 5} Carozza and his wife, Kenna Carozza ("appellees"), filed a complaint for
negligence against both Lusk and the City. Appellees filed a motion for partial summary
judgment on the issue of Carozza's comparative negligence and appellants filed a motion
for summary judgment, arguing that they were entitled to immunity pursuant to R.C. Chapter
2744. On November 8, 2021, the trial court denied the parties' competing motions for
summary judgment. Appellants timely appealed the trial court's denial of their motion,
raising one assignment of error.1
{¶ 6} THE TRIAL COURT ERRED WHEN IT DENIED DEFENDANTS' MOTION
FOR SUMMARY JUDGMENT AND DENIED DEFENDANTS THE BENEFIT OF THE
IMMUNITY CONFERRED UPON THEM BY REVISED CODE CHAPTER 2744.
{¶ 7} Appellants argue that the trial court erred in denying their motion for summary
judgment on the basis of the Political Subdivision Tort Liability Act, which they contend
provides immunity against appellees' suit.
Standard of Review
{¶ 8} "Whether a party is entitled to immunity is a question of law properly
determined by the court prior to trial pursuant to a motion for summary judgment." Pelletier
v. Campbell, 153 Ohio St.3d 611, 2018-Ohio-2121, ¶ 12. "The review of a summary
judgment denying political-subdivision immunity is de novo and is governed by the
summary-judgment standard set forth in Civ.R. 56." Id.; see also McConnell v. Dudley, 158
Ohio St.3d 388, 2019-Ohio-4740, ¶ 18. De novo review means that this court uses the
same standard that the trial court should have used, and we examine the evidence to
determine whether as a matter of law no genuine issues exist for trial. Matthews v. Texas
1. Appellees did not appeal the trial court's denial of their motion for partial summary judgment.
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Roadhouse Mgt. Corp., 12th Dist. Butler No. CA2020-03-037, 2020-Ohio-5229, ¶ 4.
{¶ 9} Summary judgment is proper if there are no genuine issues of material fact to
be litigated, the moving party is entitled to judgment as a matter of law, and reasonable
minds can come to only one conclusion, and that conclusion is adverse to the nonmoving
party. Lloyd v. Ernst, 12th Dist. Warren No. CA2018-05-058, 2019-Ohio-756, ¶ 15. The
moving party bears the initial burden of informing the court of the basis for the motion and
demonstrating the absence of a genuine issue of material fact. Wulf v. Bravo Brio
Restaurant Group, Inc., 12th Dist. Butler No. CA2018-12-238, 2019-Ohio-3434, ¶ 16.
{¶ 10} Once this burden is met, the nonmoving party has a reciprocal burden to set
forth specific facts showing there is some genuine issue of material fact yet remaining for
the trial court to resolve. Hellmuth v. Hood, 12th Dist. Butler No. CA2018-07-154, 2019-
Ohio-4835, ¶ 16. Summary judgment is proper if the nonmoving party fails to set forth such
facts. Anderson v. Jancoa, 12th Dist. Butler No. CA2019-01-018, 2019-Ohio-3617, ¶ 23.
In determining whether a genuine issue of material fact exists, the evidence must be
construed in favor of the nonmoving party. Springboro Commons Retirement Villa, Inc. v.
Feltner, 12th Dist. Warren No. CA2020-07-040, 2021-Ohio-544, ¶ 11.
Political Subdivision Liability
{¶ 11} "R.C. Chapter 2744, the Political Subdivision Tort Liability Act, sets forth a
comprehensive statutory scheme for the tort liability of political subdivisions and their
employees." McConnell, 2019-Ohio-4740 at ¶ 20. "Determining whether a political
subdivision is immune from tort liability pursuant to R.C. Chapter 2744 involves a familiar,
three-tiered analysis." Pelletier, 2018-Ohio-2121 at ¶ 15. First, R.C. 2744.02(A)
establishes the general rule that a political subdivision is immune from liability for acts or
omissions connected with governmental or proprietary functions. Burnell v. Dulle, 169 Ohio
App.3d 792, 2006-Ohio-7044, ¶ 9 (12th Dist.). That immunity, however, is not absolute.
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Riffle v. Physicians & Surgeons Ambulance Serv., Inc., 135 Ohio St.3d 357, 2013-Ohio-
989, ¶ 15.
{¶ 12} "The second tier of the analysis focuses on the five exceptions to immunity
listed in R.C. 2744.02(B), which can expose the political subdivision to liability." Smith v.
McBride, 130 Ohio St.3d 51, 2011-Ohio-4674, ¶ 14. "In cases involving the alleged
negligent operation of a motor vehicle by an employee of a political subdivision, the second
tier of the analysis includes consideration of whether the specific defenses of R.C.
2744.02(B)(1)(a) through (c) apply to negate the immunity exception of R.C. 2744.02(B)(1)."
Id.; see also Burnell at ¶ 9. "If any of the exceptions to immunity are applicable, thereby
exposing the political subdivision to liability, the third tier of the analysis assesses whether
any of the defenses to liability contained in R.C. 2744.03 apply to reinstate immunity."
Lambert v. Clancy, 125 Ohio St.3d 231, 2010-Ohio-1483, ¶ 9; see also Burnell at ¶ 9.
{¶ 13} R.C. 2744.02(B)(1)(a) provides the political subdivision a "full defense" to
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." "This provision
applies 'when an officer is responding to a call to duty, which includes responding to a
dispatch for assistance out of a professional obligation to do so.'" McConnell, 2019-Ohio-
4740, at ¶ 26, quoting Smith at ¶ 14.
Public Employee Liability
{¶ 14} Ohio law provides immunity for employees of political subdivisions under R.C.
2744.03(A)(6). Curry v. Blanchester, 12th Dist. Clinton Nos. CA2009-08-010 and CA2009-
08-012, 2010-Ohio-3368, ¶ 29. "For claims against individual employees, the three-tiered
analysis used to determine whether a political subdivision is immune is not used." Lambert
at ¶ 10. Instead, R.C. 2744.03(A)(6) provides that a political subdivision employee is
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immune from liability in a civil action for claims arising from the employee's official actions
unless one of three exceptions applies: (a) the employee's acts were manifestly outside the
scope of employment or official responsibilities; (b) the acts were with malicious purpose,
in bad faith, or in a wanton or reckless manner; or (c) liability is expressly imposed by
another section of the Revised Code. Smith v. Pierce Twp., 12th Dist. Clermont No.
CA2013-10-079, 2014-Ohio-3291, ¶ 34.
{¶ 15} "[W]anton misconduct and reckless conduct are not synonymous with
negligence, for which an employee of a political subdivision is immune from liability."
Maternal Grandmother v. Hamilton Cty. Dept. of Job and Family Servs., Slip Opinion No.
2021-Ohio-4096, ¶ 8. Furthermore, "'willful,' 'wanton,' and 'reckless' describe different and
distinct degrees of care and are not interchangeable." Anderson v. Massillon, 134 Ohio
St.3d 380, 2012-Ohio-5711, ¶ 31. "When the General Assembly used the terms 'willful' or
'wanton' in R.C. 2744.02(B)(1)(b) to deny a full defense to liability for a political subdivision
and the terms wanton or reckless in R.C. 2744.03(A)(6)(b) to remove the immunity of an
employee of the political subdivision, it intended different degrees of care." Id. at ¶ 36.
Analysis
{¶ 16} "Willful or wanton misconduct" by Lusk would allow the City, as a political
subdivision to be held liable under R.C. 2744.02(B)(1)(a); "wanton" or "reckless behavior"
by Lusk would allow Lusk to be held personally liable as an employee of a political
subdivision under R.C. 2744.03(A)(6)(b). However, "[d]emonstrating either 'wantonness' or
'recklessness' is subject to a high standard." Pressler v. City of Franklin, 12th Dist. Warren
No. CA2016-06-050, 2017-Ohio-1408, ¶ 12. "Thus, although the determination of
wantonness or recklessness is typically within the province of the jury, summary judgment
is appropriate in instances where the individuals' conduct does not demonstrate a
disposition to perversity." Estate of Smith v. Western Brown Local School Dist., 12th Dist.
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Brown No. CA2014-06-012, 2015-Ohio-154, ¶ 58; see also O'Toole v. Denihan, 118 Ohio
St.3d 374, 2008-Ohio-2574, ¶ 75.
{¶ 17} Preliminarily, we note that while appellees question whether Lusk was
responding to an "emergency call" as required by R.C. 2744.02(B)(1)(a), they ultimately
presented no evidence to counter the testimony establishing that there was an expectation
that Lusk (and indeed all available officers) would respond to the call based upon its
severity. "'Emergency call' is defined in R.C. 2744.01(A) 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.'" Smith, 2011-Ohio-4674, at ¶ 17, quoting R.C. 2744.01(A).
"It is the urgent call to duty * * * that defines an emergency and triggers immunity."
(Emphasis added.) Napper v. Litchfield, 12th Dist. No. CA91-02-006, 1991 WL 194740, *1
(Sept. 30, 1991). Even viewed in the light most favorable to appellees, the testimony of
Lusk and Sergeant Ream makes clear that Lusk was responding to an emergency call.
The City's Motion for Summary Judgment
{¶ 18} The first issue is whether the trial court erred in denying the City's motion for
summary judgment. It is undisputed that—as to the first tier of the sovereign-immunity
analysis—operating a police cruiser in response to an emergency call is a "governmental
function." As the trial court noted, the parties "agree that Lusk was acting within the course
and scope of his employment at the time of the accident." We therefore begin our analysis
at the second tier, and focus on whether the specific defense of R.C. 2744.02(B)(1)(a)
applies to negate the immunity exception of R.C. 2744.02(B)(1). Smith, 2011-Ohio-4674 at
¶ 14; see also McConnell, 2019-Ohio-4740 at ¶ 9. As previously stated, R.C.
2744.02(B)(1)(a) "provides a full defense to a political subdivision for motor-vehicle liability
when its three conditions are met: (1) the vehicle's operator was a member of the municipal
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corporation's police department, (2) the officer was responding to an emergency call, and
(3) the operation of the vehicle did not constitute willful or wanton misconduct." Id. We thus
need only determine whether Lusk's behavior constituted "willful or wanton misconduct."
R.C. 2744.02(B)(1)(a).
{¶ 19} "Willful misconduct implies 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 purposefully doing wrongful acts with knowledge or appreciation of the likelihood
of resulting injury." Anderson, 2012-Ohio-5711 at ¶ 32. "An individual acts in a 'wanton'
manner when that person fails 'to exercise any care toward those to whom a duty of care is
owed in circumstances which there is a great probability that harm will result.'" J.H. v.
Hamilton City School Dist., 12th Dist. Butler No. CA2012-11-236, 2013-Ohio-2967, ¶ 20,
quoting Anderson, at ¶ 33. The trial court, while properly noting these definitions in its
decision, declined to apply them to the facts of the case.
{¶ 20} After reviewing the record, we find that the undisputed evidence in the record
does not support appellees' claim that Lusk acted willfully or wantonly. The cruiser video
footage shows that Lusk had his emergency lights activated and that he was driving at
speeds up to 60 miles per hour as he approached the intersection where the accident
occurred. At the time of the accident, it was dark, cold, and potentially icy. Testimony also
established that Lusk slowed to approximately 35 miles per hour as he approached the
intersection, which was a 35 mile per hour zone. Even assuming that Lusk did not operate
the siren on his vehicle, as appellees suggest, and that he should have slowed the cruiser
more when entering the intersection, appellees failed to establish issues of fact indicating
the total absence of care of a known risk required before the operation of an automobile is
considered "willful" or "wanton." See Lipscomb v. Lewis, 85 Ohio App.3d 97, 102 (12th
Dist.1993). Lusk was not statutorily required to sound the siren, "however desirable such
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action may be." Id.; see also R.C. 4511.03(A).
{¶ 21} Because genuine issues of material fact do not exist on the issue of whether
Lusk's actions constituted "willful or wanton misconduct," the City is entitled to judgment as
a matter of law under R.C. 2744.02(B)(1)(b). Since reasonable minds could come only to
this conclusion, the trial court erred by denying the City's motion for summary judgment.
Lusk's Motion for Summary Judgment
{¶ 22} The second issue is whether the trial court erred in denying Lusk's motion for
summary judgment. Because Lusk moved for summary judgment on the basis of R.C.
2744.03(A)(6)(b) immunity, we must determine whether, based on the evidence in the
record, reasonable minds could conclude that he either acted "with malicious purpose, in
bad faith, or in a wanton or reckless manner" so as to preclude immunity. See Argabrite v.
Neer, 149 Ohio St.3d 349, 2016-Ohio-8374, ¶ 15. We previously determined above that
the evidence is clear that Lusk's operation of his vehicle did not constitute "willful or wanton
misconduct." Because "malicious purpose" suggests a higher level of intentionality than
willful or wanton misconduct, the only remaining issue to be determined is whether there is
a genuine issue of material fact as to whether Lusk acted in a "reckless manner."
{¶ 23} Recklessness is "'a perverse disregard of a known risk.'" A.J.R. v. Lute, 163
Ohio St.3d 172, 2020-Ohio-5168, ¶ 17, quoting O'Toole, 2008-Ohio-2574 at paragraph
three of the syllabus. "Reckless conduct is characterized by the conscious disregard of or
indifference to a known or obvious risk of harm to another that is unreasonable under the
circumstances and is substantially greater than negligent conduct." (Emphasis added.)
Anderson at ¶ 34. In order to find that Lusk was reckless, we must determine that he was
"conscious that [his] conduct [would] in all probability result in injury.'" A.J.R., 2020-Ohio-
5168 at 23, quoting O'Toole, 2008-Ohio-2574 at paragraph three of the syllabus. "In other
words, for [his] conduct to have been reckless," Lusk "must have been more than negligent
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in regard to the risk; [he] must have displayed a 'conscious disregard of or indifference to'
the risk of physical harm" to drivers, including Carozza, "'that [was] unreasonable under the
circumstances.'" Id., quoting Anderson, 2012-Ohio-5711 at paragraph four of the syllabus.
{¶ 24} As established above, a close examination of the facts reveals that Lusk's
conduct, while potentially negligent, did not rise to the level of "recklessness." Pressler,
2017-Ohio-1408 at ¶ 12 ("Demonstrating either 'wantonness' or 'recklessness' is subject to
a high standard."). Lusk had his lights activated and slowed his vehicle to within the speed
limit as he approached the intersection. While it might have been more prudent for him to
slow down more, perversity, not prudence, is the measure by which recklessness is
determined. A.J.R. at ¶ 17, quoting O'Toole at paragraph three of the syllabus. Lusk's
conduct does not demonstrate a perverse disregard of a known risk. O'Toole at ¶ 3. "R.C.
2744.03(A)(6)(b) does not impose civil liability upon political subdivision employees for
mere negligent acts, but instead, requires a showing of malice, bad faith, or wanton or
reckless misconduct." Winkle v. Zettler Funeral Homes, Inc., 182 Ohio App.3d 195, 2009-
Ohio-1724, ¶ 24 (12th Dist.). As such, the trial court erred in denying Lusk's motion for
summary judgment.
Conclusion
{¶ 25} "[A]lthough the determination of wantonness or recklessness is typically within
the province of the jury, summary judgment is appropriate in instances where the
individuals' conduct does not demonstrate a disposition to perversity." Estate of Smith,
2015-Ohio-154 at ¶ 58. In the case sub judice, appellees failed to present evidence that
Lusk acted in a "wanton" or "reckless" manner. Appellants are entitled to immunity from
tort liability under both R.C. 2744.02(B)(1)(a) and R.C. 2744.03(A)(6)(b). We therefore
sustain appellants' assignments of error.
{¶ 26} Finding that appellants are entitled to judgment as a matter of law, we hereby
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reverse the trial court's judgment and enter summary judgment on behalf of the City and
Lusk in accordance with App.R. 12(B).
{¶ 27} Judgment reversed and judgment entered on behalf of appellants.
M. POWELL, P.J., and S. POWELL, J., concur.
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