Browning v. Fostoria

[Cite as Browning v. Fostoria, 2010-Ohio-2163.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SENECA COUNTY
ROXANN BROWNING, CASE NO. 13-09-28
PLAINTIFF-APPELLANT,
v.
CITY OF FOSTORIA, ET AL., OPINION
DEFENDANTS-APPELLEES.
Appeal from Seneca County Common Pleas Court
Trial Court No. 08-CV-0463
Judgment Affirmed
Date of Decision: May 17, 2010
APPEARANCES:
Charles R. Hall, Jr., Appellant
Frank H. Scialdone, for Appellee
Case No. 13-09-28
Rogers, J.
{¶1} Plaintiff-Appellant, Roxann Browning, appeals from the judgment of
the Court of Common Pleas of Seneca County granting the City of Fostoria and
Officer Lucas Elchert’s joint motion for summary judgment. On appeal,
Browning argues that the trial court abused its discretion in granting summary
judgment where genuine issues of material fact existed as to whether Officer
Elchert was responding to an emergency call and whether his actions constituted
willful and wanton misconduct such that both the City of Fostoria and Officer
Elchert were immune from liability pursuant to R.C. 2744.02 and R.C. 2744.03.
Based on the following, we affirm the judgment of the trial court.
{¶2} In September 2008, Browning filed a complaint against the City of
Fostoria (“Fostoria”) and Officer Elchert claiming damages in excess of $25,000
proximately caused by Officer Elchert’s willful and wanton conduct in driving
through a red light in response to a dispatch call and colliding with her vehicle and
seriously injuring her. In her complaint, Browning alleged that Fostoria
negligently trained and supervised Officer Elchert, and that Fostoria was not
protected by sovereign immunity, as an exception to immunity applied for injuries
sustained due to a police officer’s willful and wanton operation of a motor vehicle
while responding to an emergency dispatch call.
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{¶3} In November 2008, Fostoria and Officer Elchert filed a joint answer
to Browning’s complaint and included an affirmative defense stating that it was
protected by political subdivision sovereign immunity pursuant to R.C. 2744.02,
as Officer Elchert acted in good faith while responding to an emergency.
{¶4} In April 2009, Fostoria and Officer Elchert filed a joint motion for
summary judgment pursuant to Civ.R. 56, asserting that R.C. 2744 provided
immunity for political subdivisions; that one exception to immunity was contained
under R.C. 2744.02(B), negligent operation of a motor vehicle; that there was a
complete defense to this immunity exception contained in R.C. 2744.02(B)(1)(a)
where a police officer operated a motor vehicle in response to an emergency call
and the operation of the vehicle was not willful or wanton misconduct; that
negligent supervision or training was not an exception to political subdivision
immunity; that Officer Elchert acted within the scope of his employment when he
operated his motor vehicle in response to an emergency dispatch concerning a
fight at a local trailer park; that Officer Elchert did not act willfully or wantonly
while driving his vehicle to the scene of the dispatch, as his vehicle’s lights and
sirens where activated, and he reduced his speed when he approached the
intersection and checked traffic in both directions, observing that motorists had
stopped to yield the right of way; and, consequently, that there was no genuine
issue of material fact as to whether Officer Elchert and Fostoria were immune
from liability.
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{¶5} Subsequently, Browning filed a response to the motion for summary
judgment, stating that genuine issues of material fact existed on the questions of
whether Officer Elchert was responding to an emergency call pursuant to R.C.
2744.02(B)(1)(a), as the dispatch records indicated that Officer Elchert was
cleared of responding to the dispatch call approximately three minutes prior to the
accident, and whether Officer Elchert operated his vehicle in a willful and wanton
manner, as he was instructed by another officer to slow down, he admitted to not
knowing the guidelines for responding at a high rate of speed, he could not
remember his speed before the accident, and he received a write-up as a result of
the accident.
{¶6} Furthermore, the deposition of Officer Elchert was filed, wherein he
stated that he has been a police officer with Fostoria for a year-and-a-half; that, in
March 2008, he had been a police officer with Fostoria for nine months; that he
was on probation for the first twelve months of employment and successfully
completed the probationary period; that the policies and procedures for Fostoria
Police included guidelines about responding to a call for service at a high rate of
speed, although he did not know the guidelines verbatim in March 2008; and, that
the guidelines provided that, when approaching a red light when responding to a
call with lights and sirens, he must slow down or stop to assure the intersection is
clear.
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{¶7} Officer Elchert further stated that, on March 22, 2008, he received a
call for a fight in progress at Nye’s Trailer Park (“Nye’s”); that he had responded
to numerous other calls at Nye’s in the past, and he sometimes responded with
lights and sirens; that three other officers in two separate vehicles also responded
to the call with him; that he turned on his lights and sirens to respond to the call;
that he could not recall at what rate of speed he was traveling; that, as he
approached an intersection with a red light in his direction, he reduced his speed,
but he did not recall by how much; that, as he approached the intersection, he
observed traffic had stopped in the immediate area to yield the right of way; that,
as he then proceeded through the intersection, he observed Browning’s vehicle
approaching eastbound; that he was unable to stop in time, and he struck the front
passenger side portion of her vehicle; that he could not recall if Browning was
operating her vehicle at a high rate of speed as she entered the intersection; that
one of the officers traveling behind his vehicle told him to slow down via the radio
after the accident; that he did not remember receiving a call prior to the accident
indicating that the fight was over at Nye’s; that, according to the dispatch activity
records, there was a call at 17:59 removing him from responding to Nye’s; that he
believed he was removed from responding because of the accident; that there was
also a dispatch call at 18:02 regarding his accident with Browning; that there was a
two-and-a-half minute difference between the dispatch activity removing him
from the call to Nye’s and the call regarding his accident; that he was disciplined
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with a “written verbal write-up” as a result of his failure to ensure the intersection
was clear (Elchert dep., pp. 12-13); and, that he did not dispute the write-up.
{¶8} Browning’s deposition was also filed, wherein she stated that she
was not using her cell phone as she was approaching the intersection shortly
before the accident; that she did not have a hearing problem; that, as she was
approaching the intersection, she did not hear police sirens; that, as she entered the
intersection on a green light, she saw a police cruiser, and it struck her vehicle
within seconds; that she did see the lights from the police cruiser; that she did not
attempt to swerve out of the way or brake to avoid the collision; that she did not
know how fast the police cruiser was traveling; that she was driving approximately
fifteen or twenty m.p.h. at the time of the accident, and the police cruiser was
traveling faster than she was; and, that she had not taken any prescription
medications that day or consumed any alcoholic beverages.
{¶9} In June 2009, subsequent to a hearing on the matter, the trial court
granted Fostoria’s and Officer Elchert’s joint motion for summary judgment.
{¶10} In July 2009, the trial court, upon its own motion, ordered Browning
to pay court costs, and Browning subsequently appealed the trial court’s grant of
summary judgment. However, we subsequently dismissed her appeal due to the
lack of a final appealable order.
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{¶11} In September 2009, the trial court filed a judgment entry, again
granting Fostoria’s and Officer Elchert’s joint motion for summary judgment. The
judgment entry provided as follows:
This matter comes before the Court on the motion of defendants
for summary judgment pursuant to Civil Rule 56. Plaintiff filed
a response to defendants’ motion. Defendants filed a reply. A
hearing was held on June 23, 2009.
The Court has been fully advised, having reviewed the motion,
memoranda, pleadings, depositions, exhibit, affidavit and
applicable law, and having heard argument of counsel.
For the reasons stated on the record, the Court finds that there
does not present a triable question of fact regarding the material
issues of 1.) the existence of the emergency call at or near the
time of this accident and 2.) whether there was willful or wanton
misconduct by the police officer. The Court further finds that
the Defendants are entitled to summary judgment against
Plaintiff on all three claims for relief pursuant to Civil Rule 56
as a matter of law.
Judgment is rendered in favor of the Defendants and against the
Plaintiff on all three claims presented. Plaintiff’s Complaint is
dismissed in its entirety.
(Sep. 2009 Judgment Entry, pp. 1-2).
{¶12} It is from the trial court’s September 2009 judgment entry granting
summary judgment to Fostoria and Officer Elchert that Browning appeals,
presenting the following assignment of error for our review.
THE TRIAL COURT ABUSED ITS DISCRETION BY
GRANTING THE APPELLEES [SIC] MOTION FOR
SUMMARY JUDGMENT.
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{¶13} In her sole assignment of error, Browning argues that the trial court
erred in granting summary judgment to Fostoria and Officer Elchert. Specifically,
she contends that genuine issues of material fact exist as to whether Officer
Elchert was responding to an emergency call and whether his conduct while
operating his vehicle was willful and wanton at the time of the accident in order
for immunity to apply pursuant to R.C. 2744.02 and R.C. 2744.03. We disagree.
{¶14} An appellate court reviews a summary judgment order de novo.
Hillyer v. State Farm Mut. Auto. Ins. Co. (1999), 131 Ohio App.3d 172, 175.
Accordingly, a reviewing court will not reverse an otherwise correct judgment
merely because the lower court utilized different or erroneous reasons as the basis
for its determination. Diamond Wine & Spirits, Inc. v. Dayton Heidelberg Distr.
Co., 148 Ohio App.3d 596, 604-605, 2002-Ohio-3932, citing State ex rel. Cassels
v. Dayton City School Dist. Bd. of Ed., 69 Ohio St.3d 217, 222, 1994-Ohio-92.
Summary judgment is appropriate when, looking at the evidence as a whole: (1)
there is no genuine issue as to any material fact; (2) 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; and, therefore, (3) the moving party is
entitled to judgment as a matter of law. Civ.R. 56(C); Horton v. Harwick
Chemical Corp., 73 Ohio St.3d 679, 686-687, 1995-Ohio-286. If any doubts exist,
the issue must be resolved in favor of the nonmoving party. Murphy v.
Reynoldsburg, 65 Ohio St.3d 356, 358-59, 1992-Ohio-95.
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{¶15} The party moving for summary judgment has the initial burden of
producing some evidence which demonstrates the lack of a genuine issue of
material fact. Dresher v. Burt, 75 Ohio St.3d 280, 293, 1996-Ohio-107. In doing
so, the moving party is not required to produce any affirmative evidence, but must
identify those portions of the record which affirmatively support her argument. Id.
at 292. The nonmoving party must then rebut with specific facts showing the
existence of a genuine triable issue; she may not rest on the mere allegations or
denials of her pleadings. Id.; Civ.R. 56(E).
{¶16} R.C. 2744 et seq. governs political subdivision tort liability and
provides a three-tiered analysis for determining liability. Ward v. City of
Napoleon, 3d Dist. No. 7-07-14, 2008-Ohio-4643, ¶11, citing Cramer v. Auglaize
Acres, 113 Ohio St.3d 266, 2007-Ohio-1946, ¶14. The first tier, under R.C.
2744.02(A)(1) sets forth the general rule providing immunity to political
subdivisions for governmental and proprietary functions.
(A)(1) For the purposes of this chapter, the functions of political
subdivisions are hereby classified as governmental functions and
proprietary functions. Except as provided in division (B) of this
section, a political subdivision is not liable in damages in a civil
action for injury, death, or loss to person or property allegedly
caused by any act or omission of the political subdivision or an
employee of the political subdivision in connection with a
governmental or proprietary function.
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{¶17} The second tier provides five exceptions to the general grant of
immunity under R.C. 2744.02(A)(1), of which only R.C. 2744.02(B)(1) is
applicable in this case.
(B) Subject to sections 2744.03 and 2744.05 of the Revised Code,
a political subdivision is liable in damages in a civil action for
injury, death, or loss to person or property allegedly caused by
an act or omission of the political subdivision or of any of its
employees in connection with a governmental or proprietary
function, as follows:
(1) Except as otherwise provided in this division, political
subdivisions are liable for injury, death, or loss to person or
property caused by the negligent operation of any motor vehicle
by their employees when the employees are engaged within the
scope of their employment and authority.
{¶18} Finally, the third tier of the analysis provides three defenses to the
immunity exception under R.C. 2744.02(B)(1), of which one is at issue here. R.C.
2744.02(B)(1)(a) grants an exception to political subdivisions for liability from
injury, death, or loss of personal property caused by the negligent operation of a
motor vehicle by an employee of the political subdivision when the employee was
“[a] member of a municipal corporation police department or any other police
agency [and] was operating a motor vehicle while responding to an emergency call
and the operation of the vehicle did not constitute willful or wanton misconduct.”
R.C. 2744.02(B)(1)(a). See, also, Howe v. Henry County Commrs., 167 Ohio
App.3d 865, 2006-Ohio-3893, ¶10. The burden of proof is on the political
subdivision to establish general immunity, and, when established, the burden then
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shifts to the plaintiff to demonstrate one of the exceptions to immunity apply.
Maggio v. Warren, 11th Dist. No. 2006-T-0028, 2006-Ohio-6880, ¶38, citing
Ramey v. Mudd, 154 Ohio App.3d 582, 2003-Ohio-5170, ¶16.
{¶19} Furthermore, R.C. 2744.03 also provides immunity for government
employees acting within the scope of their employment, with an exception for
wanton conduct.
(6) In addition to any immunity or defense referred to in division
(A)(7) of this section and in circumstances not covered by that
division or sections 3314.07 and 3746.24 of the Revised Code, the
employee is immune from liability unless one of the following
applies:
(a) The employee’s acts or omissions were manifestly outside
the scope of the employee’s employment or official
responsibilities;
(b) The employee’s acts or omissions were with malicious
purpose, in bad faith, or in a wanton or reckless manner;
R.C. 2744.03(A)(6)(a),(b).
{¶20} Here, there was no dispute that Officer Elchert was acting within the
scope of his employment and was engaged in a governmental or proprietary
function at the time of his collision with Browning. However, the issue is whether
Officer Elchert was responding to an emergency call at the time of the collision
and whether his conduct in operating his police cruiser was willful and wanton.
{¶21} R.C. 2744.01(A) defines an emergency call as “a call to duty,
including, but not limited to, communications from citizens, police dispatches, and
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personal observations by peace officers of inherently dangerous situations that
demand an immediate response on the part of a peace officer.” The Supreme
Court of Ohio has further defined emergency call as one involving a situation in
which a response by an officer is required by the officer’s professional obligation,
with no requirement that the situation be inherently dangerous. See Colbert v.
Cleveland, 99 Ohio St.3d 215, 2003-Ohio-3319, ¶14. See, also, McGuire v. Lovell
(1998), 128 Ohio App.3d 473, 478.
{¶22} Moreover, willful misconduct ‘“involves an intent, purpose or
design to injure.’” Gladon v. Greater Cleveland Regional Transit Auth., 75 Ohio
St.3d 312, 319, 1996-Ohio-137, quoting McKinney v. Hartz and Restle Realtors,
Inc. (1987), 31 Ohio St.3d 244, 246. Wanton misconduct is ‘“the failure to
exercise any care whatsoever. * * * [M]ere negligence is not converted into
wanton misconduct unless the evidence establishes a disposition to perversity on
the part of the tortfeasor. Such perversity must be under such conditions that the
actor must be conscious that his conduct will in all probability result in injury.”’
Grange Mut. Cas. Co. v. Bockelman, 3d Dist. No. 7-07-13, 2008-Ohio-1903, ¶17,
quoting McGuire, 128 Ohio App.3d at 481.
{¶23} Turning to the facts of the case, Officer Elchert stated that he was
responding to a dispatch call in regards to a fight at a local trailer park; that he
responded with lights and sirens; that, as he approached the red light at the
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intersection, he slowed down and checked for traffic; and, that he observed
vehicles yielding the right of way, so he proceeded through the intersection.
{¶24} Although Officer Elchert also stated that he was not sure of his rate
of speed at the time he entered the intersection, that he could not recall the exact
procedure for responding to an emergency call, and that he was disciplined as a
result of the accident, there was insufficient evidence to find that Officer Elchert’s
conduct was willful and wanton. He clearly slowed down and checked the
intersection for traffic and warned other motorists by using his overhead lights and
sirens. Accordingly, we find this conduct does not rise to the level of an “intent,
purpose or design to injure” or “the failure to exercise any care whatsoever,” and
that immunity exists pursuant to R.C. 2744.02(B)(1)(a) and R.C. 2744.03(A)(6).
{¶25} Additionally, Browning argues that Officer Elchert was not
responding to an emergency call at the time of the accident because the dispatch
records indicate that he was excused from responding to the call minutes before
the accident.
{¶26} Officer Elchert did state that dispatch excused him from responding
to the emergency call at Nye’s approximately three minutes before dispatch called
regarding his accident. However, he also stated that he was removed from the
emergency call as a result of the accident, and only a three minute discrepancy
between the two dispatch calls supports such a conclusion. Furthermore,
Browning presented no evidence other than the time difference between the two
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dispatch calls to support her conclusion that Officer Elchert was no longer
responding to the emergency call at the time of the accident.
{¶27} Consequently, we find that no genuine issues of material fact exist
establishing facts other than that Officer Elchert was responding to an emergency
call at the time of the accident and that he was not acting in a willful and wanton
manner. We therefore conclude that both Officer Elchert and Fostoria have
immunity from tort liability pursuant to R.C. 2744.02 and R.C. 2744.03.
{¶28} Accordingly, we overrule Browning’s assignment of error.
{¶29} Having found no error prejudicial to the appellant herein, in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
SHAW and PRESTON, J.J., concur.
/jnc
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