Argabrite v. Neer

• Decision Date: 27 December 2016
• Docket Number: No. 2015–0348.,2015–0348.
• Citation: 149 Ohio St.3d 349,2016 Ohio 8374,75 N.E.3d 161
• Parties: ARGABRITE, Appellant, v. NEER et al. Appellees.
• Court: Ohio Supreme Court

149 Ohio St.3d 349

75 N.E.3d 161

2016 Ohio 8374

ARGABRITE, Appellant,

v.NEER et al. Appellees.

No. 2015–0348.

Supreme Court of Ohio.

Submitted Feb. 9, 2016.

Decided Dec. 27, 2016.

Dyer, Garofalo, Mann & Schultz, L.P.A., and Kenneth J. Ignozzi, for appellant.

Surdyk, Dowd & Turner Co., L.P.A., Joshua R. Schierloh, and Edward J. Dowd, Dayton, for appellees Jim Neer and Gregory Stites.

Mathias H. Heck Jr., Montgomery County Prosecuting Attorney, and Laura G. Mariani and Lynne R. Nothstine, Assistant Prosecuting Attorneys, for appellees Anthony Ball and Daniel Adkins.

Schroeder, Maundrell, Barbiere & Powers, Lawrence E. Barbiere, and Kurt M. Irey, Mason, for appellee John DiPietro.

Valore & Gordillo, L.L.P., and Gregory A. Gordillo, Cleveland, urging reversal for amicus curiae Ohio Employment Lawyers Association.

Ginger S. Bock Law Office, Inc., and Ginger S. Bock, Cincinnati; Landskroner, Grieco, Merriman, L.L.C., and Drew Legando, Cleveland; and Traska Law Firm, L.L.C., and Peter D. Traska, urging reversal for amicus curiae Ohio Association for Justice.

Joseph Deters, Hamilton County Prosecuting Attorney, and Christian J. Schaefer, Assistant Prosecuting Attorney, urging affirmance for amicus curiae Ohio Prosecuting Attorneys Association.

FRENCH, J.

{¶ 1} In this appeal, we consider the level of culpability necessary to hold a police officer liable for injuries suffered by innocent third parties as the result of a high-speed police pursuit. In particular, we consider a scenario in which the fleeing suspect's vehicle collides with a vehicle occupied by the third party. The Second District Court of Appeals held that as a matter of law, a police officer who pursues a suspect is not the proximate cause of injuries to a third party unless the officer's conduct is extreme and outrageous. 2015-Ohio-125, 26 N.E.3d 879, ¶ 5, 7 (2d Dist.). We reject that standard because it is contrary to the express dictates of R.C. 2744.03(A)(6)(b), which prescribes a defense or immunity that political-subdivision employees may assert to establish their nonliability in a civil action for damages. Nevertheless, applying the correct standard, we conclude that none of the officers involved here could be held liable for damages as a result of their actions. Accordingly, we affirm the Second District's judgment in their favor, albeit on different grounds.

Background

{¶ 2} In July 2011, appellant, Pamela Argabrite, was injured in a motor-vehicle accident that she alleges was the direct result of a high-speed police chase involving officers from the Miami Township Police Department and the Montgomery County Sheriff's Department. Argabrite filed a negligence action in the Montgomery County Court of Common Pleas against appellees Jim Neer, Gregory Stites, and John DiPietro—employees of the Miami Township Police Department—and appellees Tony Ball and Daniel Adkins—employees of the Montgomery County Sheriff's Department. (We refer to appellees, collectively, as "the officers.") She alleged that the officers, while acting within the course and scope of their employment, engaged in a high-speed chase of a suspect—Andrew Barnhart—that ended when Barnhart's vehicle struck Argabrite's vehicle head-on, killing Barnhart and seriously injuring Argabrite. She claimed that the officers are not entitled to governmental immunity because their actions were willful, wanton, reckless or malicious.

{¶ 3} The officers moved for summary judgment on two distinct grounds. First, they argued that, as a matter of law, their actions were not the proximate cause of Argabrite's injuries because their conduct was not extreme or outrageous. In support of that argument, they cited Whitfield v. Dayton, 167 Ohio App.3d 172, 2006-Ohio-2917, 854 N.E.2d 532 (2d Dist.), overruled in part on other grounds, Anderson v. Massillon, 134 Ohio St.3d 380, 2012-Ohio-5711, 983 N.E.2d 266. Second, the officers argued that they are entitled to immunity as employees of political subdivisions under R.C. 2744.03(A)(6)(b) because they did not act "with malicious purpose, in bad faith, or in a wanton and reckless manner."

{¶ 4} The trial court granted summary judgment in favor of the officers based on Whitfield, in which the Second District applied a rule that "when police officers pursue a fleeing violator who injures a third party, the officers' pursuit is not the proximate cause of the injuries unless their conduct was outrageous or extreme." Id. at ¶ 22, citing Lewis v. Bland, 75 Ohio App.3d 453, 599 N.E.2d 814 (9th Dist.1991). The trial court stated that no reasonable juror could conclude that the officers engaged in extreme or outrageous conduct and, therefore, no reasonable juror could conclude that the officers' actions were the proximate cause of the accident.

{¶ 5} On appeal, the Second District likewise applied the no-proximate-cause rule from Whitfield and affirmed the trial court's entry of summary judgment. We accepted Argabrite's discretionary appeal. 143 Ohio St.3d 1440, 2015-Ohio-3427, 36 N.E.3d 188.

Analysis

Statutory political-subdivision immunity

{¶ 6} We begin our analysis by looking to relevant statutes that cloak employees of political subdivisions with immunity. R.C. Chapter 2744 sets out circumstances under which political subdivisions and their employees are liable in tort in connection with governmental and proprietary functions. Political-subdivision immunity is an affirmative defense. Whitehall ex rel. Wolfe v. Ohio Civ. Rights Comm., 74 Ohio St.3d 120, 123, 656 N.E.2d 684 (1995).

{¶ 7} Argabrite asserts claims against political-subdivision employees. We therefore turn to R.C. 2744.03(A), which prescribes defenses or immunities that an employee of a political subdivision may assert to establish nonliability in a civil action for damages allegedly caused by an act or omission in connection with a governmental or proprietary function. As relevant here, an employee of a political subdivision is immune from liability unless 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)(b). This standard applies to law-enforcement officers just as it applies to other employees of political subdivisions. See Fabrey v. McDonald Village Police Dept., 70 Ohio St.3d 351, 356, 639 N.E.2d 31 (1994).

{¶ 8} We focus here on the phrase "wanton or reckless manner." This court has defined "wanton misconduct" as "the failure to exercise any care toward those to whom a duty of care is owed in circumstances in which there is great probability that harm will result." (Emphasis added.) Anderson, 134 Ohio St.3d 380, 2012-Ohio-5711, 983 N.E.2d 266, at paragraph three of the syllabus. And we have defined "reckless conduct" as conduct "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." Id. at paragraph four of the syllabus. These are rigorous standards that will in most circumstances be difficult to establish, especially with respect to a law-enforcement officer carrying out the statutory duty to arrest and detain a person violating the law. See R.C. 2935.03(A)(1).

Conflict between no-proximate-cause rule and statutory immunity

{¶ 9} Both the trial court and the appellate court in this case acknowledged R.C. 2744.03(A)(6) and its applicability to police officers. But rather than analyzing this case under the immunity statute, both courts skipped the question of immunity and applied the judicially created no-proximate-cause rule from Whitfield and Lewis.

{¶ 10} When a plaintiff files a civil action against an employee of a political subdivision, the employee's entitlement to statutory immunity is a separate question from the plaintiff's ability to establish the elements of his or her claim. Here, for example, if the officers had acted recklessly, they would not be entitled to immunity, but they could still avoid liability by establishing that their reckless actions were not the proximate cause of Argabrite's injuries. Justice Kennedy's concurring opinion accuses the majority of blurring the distinction between the affirmative defense of immunity and the tort element of proximate cause, but that charge is a nonstarter. It is the no-proximate-cause rule itself that blurs those distinctions by incorporating concepts related to duty and breach that are part of the statutory-immunity standards, into the question of proximate cause.

{¶ 11} The no-proximate-cause rule is admittedly phrased in terms of proximate cause—an element of a tort claim—and not in terms of immunity. But the judicially created rule improperly imputes to the question of proximate cause a standard of care—extreme or outrageous conduct. As Judge Froelich stated in his dissenting opinion in the court of appeals, "[t]his approach is contrary to traditional notions of proximate cause, which focus on the foreseeability of the consequence, not the wrongfulness of the conduct that produces the result." 2015-Ohio-125, 26 N.E.3d 879, ¶ 34 (Froelich, J., dissenting). The alarmist statement in Justice Kennedy's opinion that abrogation of the no-proximate-cause rule "will have a chilling effect on policing" and "aid criminals in their flight," concurring in judgment opinion at ¶ 64, is completely unfounded and is a misguided attempt to inject policy considerations into a case that is resolved by application of straightforward legal principles of immunity and proximate cause.

{¶ 12} With R.C. 2744.03(A)(6)(b), the General Assembly "expressly removed immunity from employees of a political subdivision for wanton or reckless conduct." Anderson, 134 Ohio St.3d 380, 2012-Ohio-5711, 983 N.E.2d 266, at ¶ 23. The no-proximate-cause rule, however, shields a police officer from liability as a matter of law unless the officer in these circumstances acts in an extreme or outrageous manner. Extreme or outrageous conduct connotes a higher standard of culpability...