Stewart v. Hubbard

I respectfully dissent from the foregoing opinion based on the majority's conclusion that no special duty to the deceased existed.

It is clear from the record in this case that genuine issues of material fact do exist. The pertinent facts alleged by appellees and presented to the trial court by way of an affidavit of the Hubbard police officer who stopped the decedent's automobile are directly contradicted by an affidavit, submitted by appellant, of a passenger who was in the car on the night in question.

The most important discrepancies center on whether the Hubbard police officers had any indications that the driver, Albert Carano, Jr., was intoxicated. There is a conflict in the testimony whether he was given field sobriety tests or whether an attempt was made to find a different driver for the vehicle. There are also inconsistencies with respect to the timing of the arrival of the second officer in relation to when the first officer decided to let the driver continue driving.

These are important and material facts that reflect on such issues as the foreseeability of the accident, whether the officers had any reason to suspect that Carano had been drinking, and whether it was bad judgment, negligence, or intentional wrongdoing to allow Carano to continue driving. These are issues for the trier of fact, and it was improper for the trial court to grant summary judgment based, in part, on there being no genuine issue of material fact.

It is still necessary, however, to determine whether a special duty to Rodney Crytser could exist, given the facts as presented to the trial court. Each of the four requirements of the Sawicki test would have to be met.

Reviewing the record in the trial court, there is evidence which, if found to be credible, would satisfy the first requirement of the Sawicki test. In the affidavit submitted by appellant, one of the passengers in the car indicated that Officer Dennis Baker had reason to know that Carano was intoxicated. She explained how Carano was given a variety of field sobriety tests, and that the officer tried to find a substitute driver for the car. Upon discovering that nobody else was able to drive the car, the officer allegedly cautioned Carano to drive straight home. From these facts, a jury could conclude that the officer suspected that the driver was intoxicated. When Officer Baker first began the process of determining whether Carano was, in fact, intoxicated, was when Officer Baker, through his actions, assumed an affirmative duty to act on behalf of the passengers.

The logic employed by the majority on this issue is convoluted. The majority states that Crytser should have been put on notice that Carano's driving abilities may have been impaired because of the actions of the police officer. Clearly, however, a reasonable person's suspicions would have been laid to rest instead of heightened when the highly trained, professional law enforcement officer made the judgment that Carano's driving abilities were not impaired. Certainly, the public is entitled to trust the judgment of a police officer in determining whether a driver is so intoxicated as to be a hazard to himself and to others on the road. In this jurist's opinion, Officer Baker assumed an affirmative duty to act on behalf of Crytser.

Under the second prong of the Sawicki test, it must be shown that the police officer had knowledge that inaction could lead to harm. Once again, the evidence presented indicated Officer Baker administered field sobriety tests to Carano and then attempted to find another driver for the vehicle. If this evidence is determined to be credible, a jury could infer from it that the officer believed that the driver was intoxicated and that it was necessary to attempt to find a sober driver to prevent any harm from occurring. It is safe to assume that a police officer has knowledge of the harm that can be caused by a drunk driver.

On this issue, where there was clearly conflicting evidence presented, the majority apparently chose to accept Officer Baker's version of the events. In a summary judgment action, however, the law requires the trial court to view the evidence in a light most favorable to the party opposing the motion.Morris v. Ohio Cas. Ins. Co. (1988), 35 Ohio St.3d 45, 46,517 N.E.2d 904, 906. In the instant cause, appellant was the party opposing the motion and she presented evidence which, if believed by the trier of fact, strongly suggested that the police officer knew Carano was intoxicated. Therefore, the second prong of the Sawicki test was met.

The third prong of the test requires a showing of some form of direct contact between the police officer and the injured party. It is clear from the affidavit of the passenger that one of the police officers at the scene asked both her and the decedent if they would be able to drive the car. This certainly qualifies as direct contact. Appellees argue that, because the affidavit does not specify which officer questioned the passengers, it may have been the officer that is not a party to this action and, therefore, the requisite direct contact was lacking. Appellees overlook the fact that the affiant may be able to identify Officer Baker as the questioning officer at trial. Based on the foregoing analysis, the third prong of theSawicki test has been met.

Finally, a showing must be made that the injured party justifiably relied on the police officer's affirmative undertaking. Once again, if the passenger's affidavit is found to be credible by the trier of fact, then there is evidence upon which reasonable minds could conclude that Rodney Crytser justifiably relied on the police officer's affirmative undertaking. Whether or not the decedent believed, before they were stopped by the police, that Carano was capable of driving his car, any doubt he may have had was removed when, after conducting field sobriety tests upon Carano, the police officer allowed him to continue driving. Such actions by trained police officers would indicate to the decedent that Carano would be able to safely continue driving. It is certainly justifiable to rely on the opinion of a person whose job it is to determine whether a driver is intoxicated.

Since all four of the elements of the Sawicki test could be met depending on the credibility of the evidence, the trial court erred in determining that appellees were entitled to judgment as a matter of law.

Based on the foregoing analysis, I would reverse the decision of the trial court and remand the cause for further proceedings. I cannot agree with the logic expressed by the majority and I must, therefore, respectfully dissent.