Argabrite v. Neer, 26220.

• Court: United States Court of Appeals (Ohio)
• Citation: 26 N.E.3d 879
• Decision Date: 16 January 2015
• Docket Number: No. 26220.,26220.
• Parties: Pamela ARGABRITE, Plaintiff–Appellant v. Jim NEER, et al., Defendants–Appellees.

26 N.E.3d 879

Pamela ARGABRITE, Plaintiff–Appellant
v.
Jim NEER, et al., Defendants–Appellees.

No. 26220.

Court of Appeals of Ohio, Second District, Montgomery County.

Jan. 16, 2015.

26 N.E.3d 880

Kenneth J. Ignozzi, Dyer, Garofalo, Mann, & Schultz, Dayton, OH, Attorney for Plaintiff–Appellant, Pamela Argabrite.

Lisa A. Luebke, and John Cumming, Dayton, OH, Attorney for Defendants–Appellees, Tony Ball, Daniel Adkins, Julie Stephens and Karen Osterfield.

Lawrence E. Barbiere, Schroeder, Maundrell, Barbiere & Powers, Mason, OH, Attorney for Defendant–Appellee, John DiPietro.

Edward J. Dowd, and Joshua Schierloh, Miamisburg, OH, Attorneys for Defendants–Appellees, Jim Neer and Gregory Stites.

OPINION

HALL J.

{¶ 1} Around noon on July 11, 2011, Miami Township police officers Jim Neer and Gregory Stites pursued fleeing burglary suspect Andrew Barnhart along streets in Miami Township and Washington Township while Deputy Chief John DiPietro supervised from the police department. Deputy Tony Ball and Sergeant Daniel Adkins of the Montgomery County Sheriff's Office were also providing assistance. The pursuit ended when the suspect pulled into the opposing traffic lane and crashed head-on into the oncoming vehicle driven by Pamela Argabrite. The suspect was killed, and Argabrite was seriously injured. Argabrite filed a negligence action against the five officers involved in the pursuit to recover damages for her injuries.

{¶ 2} The defendants all moved for summary judgment, contending that they are immune from liability under R.C. 2744.03(A)(6)(b) of the Political Subdivision Tort Liability Act, which “provides immunity to employees of a political subdivision for acts that are not committed in a wanton or reckless manner,” Anderson v. Massillon, 134 Ohio St.3d 380, 2012-Ohio-5711, 983 N.E.2d 266, ¶ 39. The defendants also contended that they were not the proximate cause of Argabrite's injuries under the rule applied by this Court in Whitfield v. Dayton, 167 Ohio App.3d 172, 2006-Ohio-2917, 854 N.E.2d 532 (2d Dist.)¹ , which requires extreme or outrageous conduct

26 N.E.3d 881

by police officers before proximate cause is established in a pursuit where the injuries result from a crash by the pursued vehicle. The county officers also argued that they were not pursuing the suspect. Argabrite argued that the pursuit was wanton and reckless because the officers engaged in a high-speed chase through commercial and residential areas during heavy traffic when the suspect was not violent and could have been later apprehended with a warrant.

{¶ 3} The trial court granted the summary judgment motions on the proximate-cause issue. As to the county officers, the court concluded that no reasonable juror could find that the conduct of either officer was extreme or outrageous. Officer Adkins, said the court, was not involved in the pursuit, and Officer Ball's tracking of the suspect was at a distance and at reasonable speeds, breaking off well before the accident in favor of the Miami Township officers. As to the township officers, the trial court concluded that their conduct was reckless, but no reasonable juror could conclude that their conduct was extreme or outrageous.

{¶ 4} Argabrite appealed, alleging in the sole assignment of error that the trial court erred by granting summary judgment. Our review of a summary judgment decision is de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). This means we use the same standard that the trial court should have used, and we determine whether the evidence presents a genuine issue of fact for trial. Dupler v. Mansfield Journal Co., 64 Ohio St.2d 116, 413 N.E.2d 1187 (1980). The trial court's decision is not granted any deference by the reviewing appellate court. Brown v. Scioto Cty. Bd. Of Commrs., 87 Ohio App.3d 704, 711, 622 N.E.2d 1153 (4th Dist.1993). Therefore, we could review and analyze whether the trial court's conclusion that Township officers Neer and Stites were reckless is supported by the record or, if a genuine issue of recklessness is found, whether that behavior was the proximate cause of Barnhart's collision with the Argabrite vehicle. If there is no genuine issue of either recklessness or proximate cause resulting from recklessness, then the officers are entitled to immunity under R.C. 2744.03(A)(6). But we need not, and do not, engage in that analysis at this juncture because of our determination that the no-proximate-cause rule of Whitfield v. Dayton, requiring extreme or outrageous conduct, is dispositive of this appeal.

{¶ 5} Argabrite asks us to reconsider the proximate-cause rule applied in Whitfield. This rule comes from the Ninth District's “no proximate cause” holding in Lewis v. Bland: “When a law enforcement officer pursues a fleeing violator and the violator injures a third party as a result of the chase, the officer's pursuit is not the proximate cause of those injuries unless the circumstances indicate extreme or outrageous conduct by the officer, as the possibility that the violator will injure a third party is too remote to create liability until the officer's conduct becomes extreme.” 75 Ohio App.3d 453, 456, 599 N.E.2d 814 (9th Dist.1991). We adhered to this holding in Whitfield because we recognized it as “established law” in Ohio. Whitfield, 167 Ohio App.3d 172, 2006-Ohio-2917, 854 N.E.2d 532, at ¶ 59. “Ohio appellate districts, including our own,” we said, “ * * * apply the ‘no proximate cause’ holding of Lewis to cases where pursuits end in injury to innocent third parties or to occupants of the pursued vehicle without direct contact with a police vehicle.” Id. at ¶ 57, citing Jackson v. Poland Twp., 7th Dist. Mahoning Nos. 96 CA 261, 97 CA 13, and 98 CA 105, 1999 WL 783959 (Sept. 29, 1999) ;

26 N.E.3d 882

Pylypiv v. Parma, 8th Dist. Cuyahoga No. 85995, 2005-Ohio-6364, 2005 WL 3220240 ; Shalkhauser v. Medina, 148 Ohio App.3d 41, 2002-Ohio-222, 772 N.E.2d 129 (9th Dist.) ; Heard v. Toledo, 6th Dist. Lucas No. L–03–1032, 2003-Ohio-5191, 2003 WL 22233790, ¶ 12 (rejecting an argument that Lewis is “outdated, contrary to sound public policy and should no longer govern Ohio cases”); and Sutterlin v. Barnard, 2d Dist. Montgomery No. 13201, 1992 WL 274641 (Oct. 6, 1992) (a previous case in which this district followed Lewis 's approach).

{¶ 6} According to Argabrite, the “no proximate cause” rule is the minority position in this country: “The majority of jurisdictions, focusing on the importance of public safety, adopt the longstanding, general rules of proximate causation in which a police officer may be liable for damages where his actions are a substantial factor in bringing about the end result, or at least when their conduct is reckless. Courts that reject the ‘no proximate cause rule’ have urged that using the majority standard increases public safety and is generally more consistent with the policies of police agencies.” (Brief of Plaintiff–Appellant, Pamela Argabrite, 25). Argabrite also cites the dissenting judge in Whitfield, Judge Brogan, who disagreed with the “no proximate cause” rule. He agreed with the dissenting judge in Lewis that the rule fails to recognize that “ ‘multiple actors can combine to provide causation in a given instance.’ ” Whitfield at ¶ 118 (Brogan, J., dissenting), quoting Lewis at 459, 599 N.E.2d 814 (Cacioppo, J., dissenting). Judge Brogan agreed with the majority view, that if a plaintiff alleges police negligence in a pursuit, the issue of proximate cause should be considered simply a question of fact. Rather, we should say that Judge Brogan agrees with the majority view. He is the trial judge in this case, and in his summary-judgment decision he urges us to reverse Whitfield on this point.

{¶ 7} The “no proximate cause” rule is still the established law in this state. Since Whitfield, no Ohio court has questioned the rule, and at least one has rejected an argument not to follow it, see Perry v. Liberty Twp., 11th Dist. Trumbull No. 2012–T–0056, 2013-Ohio-741, 2013 WL 793130, ¶ 18–21. We are not convinced that this is the case in which to reconsider the rule.

{¶ 8} The remaining issue is whether the trial court applied the “no proximate cause” rule correctly in this case. To determine whether the police officers' conduct was extreme or outrageous in Whitfield we referred to the description of extreme and outrageous conduct adopted by the Ohio Supreme Court: The conduct is “ ‘so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, “Outrageous!” ’ ” Yeager v. Local Union 20, Teamsters, Chauffeurs, Warehousemen, & Helpers of America, 6 Ohio St.3d 369, 375, 453 N.E.2d 666 (1983), quoting 1 Restatement of the Law 2d, Torts, Section 46, Comment d (1965). “Obviously, this is an exceptionally difficult standard to meet.” Whitfield, 167 Ohio App.3d 172, 2006-Ohio-2917, 854 N.E.2d 532, at ¶ 61.

{¶ 9} “In a case decided on summary judgment, we must determine whether an issue of material fact remains to be litigated, whether the moving party is entitled to judgment as a matter of law,...