Harold Lewis, Guardian v. Frederick Bland, 91-LW-1636

• Decision Date: 07 August 1991
• Docket Number: 14974,91-LW-1636
• Parties: HAROLD LEWIS, Guardian, et al., Plaintiffs-Appellants v. FREDERICK BLAND, et al., Defendants-Appellees CASE
• Court: United States Court of Appeals (Ohio)

HAROLD LEWIS, Guardian, et al Plaintiffs-Appellants v. FREDERICK BLAND, et al Defendants-Appellees

No. 14974.

91-LW-1636 (9th)

Court of Appeals of Ohio, Ninth District Summit

August 7, 1991

Appeal from judgment entered in the Common Pleas Court, County of Summit, CASE NO. CV 89 02 0321.

PATRICK J. HART, Attorney at Law, 1100 First Natl. Tower, Akron, OH 44308, (for Plaintiffs).

WILLIAM D. DOWLING, Attorney at Law, 50 S. Main St, P.O. Box 1500 Akron, OH 44309, (for Defendants).

DECISION

Before HON. MARY CACIOPPO, P.J., HON. DEBORAH COOK, J., HON. JOHN W. REECE, J.

PER CURIAM.

Plaintiffs-appellants, Harold Lewis, guardian of the person and estate of Brian Scott Lewis, and Lenny Musgrave, appeal the decision of the Summit County Court of Common Pleas granting summary judgment in favor of defendant-appellee, City of Akron.

The complaint alleged, inter alia, that City of Akron police officers negligently initiated a high speed chase and conducted the chase in a manner which showed a reckless, wanton and willful disregard for the safety of others and was otherwise grossly negligent constituting willful and/or wanton misconduct. The complaint further alleged that as a direct result of the police officers' conduct, Edwin Greer collided into a car operated by Brian Scott Lewis and in which Lenny Musgrave was a passenger. It further alleged that the City failed to adequately train the police officers; failed to enforce its high speed pursuit policy; and negligently entrusted a police cruiser to the police officers involved in the high speed chase.

The City filed a motion for summary judgment, claiming that it was not, as a matter of law, liable for any negligence by the officers, under the theory of governmental immunity as provided in R.C. Section 2744; that the conduct of the officers did not constitute wanton and willful conduct in response to an emergency call; and, that the officer's actions were not the proximate cause of she accident. The motion was accompanied by the affidavit of Officer Stephen Phillips. Phillips averred that on September 2, 1987, at approximately 9:40 p.m., the officers observed a vehicle travelling southbound on Kelly Avenue at a high rate of speed. Officer Phillips made a u-turn and pursued the vehicle. The officers saw the vehicle swerve to avoid a truck and go left of center while navigating a turn. Phillips further averred he activated the lights and flashers, at which time the pursued vehicle began to flee. The officers continued to pursue the vehicle through business and residential areas until the vehicle eventually ran a stop sign at the intersection of Virginia and Archwood, striking the vehicle being driven by Brian Scott Lewis.

The appellants filed a memorandum in opposition to the motion for summary judgment, asserting that there were material facts in dispute concerning the proximate relationship between the police conduct and Greer's driving; the failure to train officers on the high speed pursuit policy and to enforce the policy; whether the officers were responding to an emergency call; and whether the officers operation of the vehicle constituted willful or wanton misconduct. Appellants attached affidavits, deposition testimony, answers to interrogatories and other materials obtained through discovery.

On January 4, 1991, the trial court granted the City's motion for summary judgment, finding no evidence that the police officers operated their car in a negligent manner during the pursuit of Greer and, as a matter of law, police officers have no duty to refrain from initiating a chase.

Assignment of Error 5

"The trial court erred in granting summary judgment for the defendant City of Akron."

Appellant contends that the trial court erred in granting summary judgment in the appellee's favor. We do not agree and find that the City is entitled to judgment in its favor on the bases of proximate cause and sovereign immunity.

We agree with appellee's contention that the pursuit of Edwin Greer by the City's police officers was not the proximate cause of plaintiffs' injuries. It is the duty of law enforcement officials who observe reckless motorists to apprehend those motorists who make the highways dangerous to others. Roll v. Timberman (1967), 229 A. 2d 281, 284. The proximate cause of an accident in such a situation is the reckless driving of the pursued, notwithstanding recognition of the fact that police pursuit contributed to the pursued's reckless driving. Id. 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. Dewald v. State (Wyo. 1986), 719 P. 2d 643, 650.

As stated by the Supreme Court of Tennessee:

"The duty of police officers is to enforce the law and to make arrests in proper cases, not to allow one being pursued to escape because of the fear that the flight may take a course that is dangerous to the public at large.

"The opposite would, we think, be an unnecessary restriction on the ability of police officers to carry out their duties. In every case where a police officer sought to stop a motorist for a traffic violation, it would become a jury question whether the act of the officer was the proximate cause of any harm the motorist might cause in trying to avoid arrest. In our judgment any police officer would hesitate to make an arrest involving a moving automobile within or close to a city for fear that the subject being arrested would flee and cause harm to others for which the officer might be held responsible."

"* * *."

Nevill v. City of Tullahoma (1988), 756 S.W. 2d 226, 232.

In the case at bar, a review of the facts demonstrates that it was the reckless driving of Edwin Greer, rather than the officers' conduct, that was the direct and proximate cause of the appellants' injuries. Appellants' argument is that the initiation and the continuation of this chase proximately caused the speeding and recklessness of Greer which in turn led directly to the collision between Greer and the innocent third parties. However, no evidence was presented that suggested the pursuit of Greer constituted extreme or outrageous conduct. Dewald, supra. Greer was, however, speeding and swerving in traffic prior to the initiation of the pursuit. That evidence is uncontroverted. We find that construing the evidence most strongly for the appellants, reasonable minds could only conclude that the officers conduct was not the proximate cause of the accident.

The negligence standard is inapplicable if these police officers are determined to be responding to an emergency. R.C 2744.02(B)(1)(a). If the officers are responding to an emergency then the municipality is immune from negligence claims but must respond in damages for willful or wanton misconduct of the officers in the operation of their motor vehicle. Officer Phillips' sworn statement that these officers were responding to an emergency call as defined in R.C. 2744.01(A) through the observation of [an] inherently dangerous situation demanding an immediate response was undisputed. A triable question of fact, therefore, did not exist on this issue. We have previously held that the issue of whether or not an emergency...