Freda Moore v. City of Columbus, 94-LW-0497
| Decision Date | 03 November 1994 |
| Docket Number | 94APE01-130,94-LW-0497 |
| Parties | Freda Moore et al., Plaintiffs-Appellants v. City of Columbus et al., Defendants-Appellees |
| Court | Ohio Court of Appeals |
APPEAL from the Franklin County Court of Common Pleas.
Scott E. Smith Co., L.P.A., Scott E. Smith and Bradley P. Koffel for appellants.
Ronald J. O'Brien, City Attorney, and Glen B. Reddick, for appellees.
This matter is before this court upon the appeal of Freda Moore and Kenneth Boston, appellants, from the January 13, 1994 judgment entry of the Franklin County Court of Common Pleas which overruled appellants' motion for summary judgment and granted the motion of appellees, city of Columbus and Columbus Police Department. Appellants set forth the following assignments of error on appeal:
On February 19, 1988, appellants were involved in a collision with Columbus Police Officer Jeffrey Elder at the intersection of McDowell and Rich Streets while Officer Elder was on duty and driving a police cruiser. Appellants were in an automobile proceeding southbound on McDowell approaching the intersection with Rich Street. Officer Elder was travelling eastbound on Rich Street from Gift Street. It was approximately 11:15 p.m., the weather was misty and the streets were damp.
Shortly before the collision, Officer John Myers, patrolling in his cruiser, was dispatched to Central High School to investigate a burglary in progress. Officer Myers proceeded eastbound on Rich Street toward Central High School. As he approached the intersection at McDowell, he noticed that the traffic light was not functioning. Officer Myers reported the malfunction by way of the service channel on his police radio.
Officer Elder, also on routine patrol, received a dispatch to report to the scene of the burglary in progress at Central High School. He turned eastbound on Rich Street from Gift Street. Officer Elder's cruiser collided with the vehicle in which appellants were passengers at the intersection of Rich and McDowell Streets. At the time of the collision, Officer Elder was travelling at approximately 40 m.p.h., which was five miles over the posted speed limit, and was not operating his cruiser's emergency flasher lights or sirens. When Officer Elder saw appellants' vehicle, he immediately applied his brakes and swerved in an effort to avoid the accident. At the time, Officer Elder considered himself to be on an emergency call.
The matter came on for trial on February 3, 1992, at which time appellants dismissed Officer Elder. A default judgment was taken against the driver of the vehicle in which appellants were passengers. The matter proceeded to trial and the trial court sustained a directed verdict in favor of appellants. The trial court held that the city of Columbus, through the actions of Officer Elder, was negligent and the only issues submitted to the jury were the nature and the extent of appellants' injuries. The jury returned a verdict in favor of appellant Moore in the amount of $100,000 and appellant Boston in the amount of $9,000.
The city of Columbus appealed from that decision and this coup reversed the trial court in Moore v. City of Columbus (Feb. 25, 1993), Franklin App. No. 92AP-1009, unreported (1993 Opinions 507). In that case, this court reversed and remanded the matter for a new trial because the trial court applied R.C. 4511.132 which was not in effect at the time this accident occurred. Inasmuch as the trial court relied almost exclusively upon this statute in rendering its verdict in favor of appellants, this court remanded the matter for a new trial.
Thereafter, appellants and appellees filed motions for summary judgment. The trial court concluded that Officer Elder was on an emergency call at the time of the collision. Furthermore, the trial court concluded that, in the original judgment entry of the trial court, the court concluded that there was a complete lack of evidence of willful and wanton misconduct on the part of Officer Elder while operating his police cruiser when the collision with appellants had occurred. As such, the trial court held that the city of Columbus was immune by virtue of R.C. Chapter 2744. Furthermore, the court concluded that in the original trial, the trial court granted a directed verdict in appellees' favor on the issue of negligent training and supervision of the Columbus Police officers. As such, the trial court granted the summary judgment motion of appellees and overruled the summary judgment motion of appellants. It is from this entry that appellants bring this appeal.
Summary judgment, Civ.R. 56, is a procedural device designed to terminate litigation and to avoid a formal trial where there is nothing to try. It must be awarded with caution, resolving all doubts and construing evident against the moving party, and granted only when it appears from the evidentiary material that reasonable minds can reach only an adverse conclusion as to the party opposing the motion. See Norris v. Ohio Std. Oil Co. (1982), 70 Ohio St.2d 1.
Pursuant to Civ.R. 56(C), summary judgment may be rendered where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Summary judgment may not be rendered unless it appears that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion is made.
The moving party has the burden of showing that there is no genuine issue as to any material fact as to the critical issues. The opposing party has a duty to submit affidavits or other material permitted by Civ.R. 56(C) to show genuine issue for trial. See Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64.
R.C. 2744.02(A)(1) states that all political subdivisions in Ohio are provided immunity from civil liability "for injury, death, or loss to persons 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." R.C. 2744.02(B)(1) provides an exception to that immunity "for injury, death, or loss to persons or property caused by the negligent operation of any motor vehicle by their employees upon the public roads, highways, or streets when the employees are engaged within the scope of their employment and authority. ***" R.C. 2744.02(B)(1)(a) provides an exception to the exception when the driver is a police officer operating a motor vehicle "while responding to an emergency call and the operation of the vehicle did not constitute willful or wanton misconduct[.]"
"Emergency call" is defined in R.C. 2744.01(A) as meaning "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."
In the first assignment of error, appellants contend that the trial court erred in granting summary judgment in favor of the city of Columbus because a genuine issue of fact remains as to whether or not Officer Elder was responding to an "emergency call" as contemplated by R.C. 2744.01(A). The thrust of appellants' argument is their focus on the language "inherently dangerous situations" as found in the definition of emergency call in R.C. 2744.01(A). Inasmuch as Central High School was a vacant building and there was no threat to human life, appellants contend that an "inherently dangerous situation" did not exist and, therefore, Officer Elder was not responding to an "emergency call."
Appellants are asking this court to define "emergency call" in such a way as to restrict it solely to "inherently dangerous situations," and to further define such as a situation where human life is threatened. However, appellants' interpretation of the statute serves to restrict the rather open-ended definition of "emergency call" as provided by the legislature. By focusing on the language "inherently dangerous situations" appellants have completely failed to comprehend that R.C. 2744.01(A) defines "emergency call" as "a call to duty including, but not limited to police dispatches of inherently dangerous situations that demand an immediate response on the part of a peace officer." As such, R.C. 2744.01(A) provides but one definition of an "emergency call" and that definition is the most obvious definition of what would constitute an emergency call." There is no requirement in the statute which would limit an "emergency call" only to those occasions where there is an inherently dangerous situation or when human life is at danger.
Certainly we can all agree that certain situations clearly constitute an "emergency call." See for example: York v. Ohio State Highway Patrol (1991), 60 Ohio St.3d 143 (); Rodgers v. DeRue (1991), 75 Ohio App.3d 200 (...
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