Marsha Sawicki v. Village of Ottawa Hills
| Decision Date | 12 December 1986 |
| Docket Number | L-85-366,L-85-443 and L-86-002,86-LW-3752 |
| Parties | Marsha SAWICKI, et al., Plaintiffs-Appellees Cross-Appellants, v. VILLAGE OF OTTAWA HILLS, Defendant-Third-Party-Plaintiff-Appellant-Cross-Appelle, v. CITY OF TOLEDO, Third-Party-Defendant-Appellee. Nos. L-85-366, L-85-443 and L-86-002. |
| Court | Ohio Court of Appeals |
William M. Connelly and Steven P. Collier, for Marsha Sawicki, et al.
John A Pietrykowski and Gerald R. Kowalski, for Village of Ottawa Hills.
Sheldon M. Rosen, Director of Law, by Robert G. Young, Senior Attorney, for City of Toledo.
This case is an appeal of three separate judgments entered by the Lucas County Court of Common Pleas in the case captioned Marsha Sawicki, et al. v. Village of Ottawa Hills v. City of Toledo, CV 83-2218. The instant appeal arises from the consolidation of three separate appeals: Marsha Sawicki, et al. v. Village of Ottawa Hills v. City of Toledo, L-85-366, appealing a judgment entered on September 16, 1985; Marsha Sawicki, et al. v. Village of Ottawa Hills v City of Toledo, L-85-443, appealing a judgment entered on November 19, 1985; Marsha Sawicki, et al. v. Village of Ottawa Hills, L-86-002, appealing a judgment entered on December 6, 1985.
The facts giving rise to the instant appeal are as follows. On September 17, 1981, Leslie Sawicki, plaintiff-appellee-cross-appellant, accompanied Todd Szabo in his van on a drive through Toledo and surrounding communities. The couple made several stops to purchase gasoline, beer and wine. At about midnight, the couple stopped in the parking lot of the Terrace View Apartments, located in Toledo, but within a short distance from the Village of Ottawa Hills. At this location, the couple was accosted at gunpoint by Anthony Cook. Cook entered the van and demanded money from the couple. Upon receiving the money from Todd, Cook restrained the couple by tying Todd's hands and legs and tying Leslie's hands behind her back. Thereafter, Cook ordered Leslie to lie down on the platform in the back of the van. Cook removed Leslie's pants and began to remove his own, when he was suddenly attacked by Todd and Leslie, who had been able to free themselves from their restraints. In the midst of the struggle between the three, Todd was able to gain some control over Cook and take possession of the gun. Thereafter, upon Todd's instructions, Leslie fled for help.
Leslie ran to her grandmother's apartment located in the Terrace View complex. However, her grandmother did not answer her door so Leslie was forced to seek help elsewhere in the apartment building. Finally, Kimberly Street, a resident of the apartment complex, responded to Leslie's pleas for help, and allowed Leslie into her apartment. Leslie immediately called the Ottawa Hills Police Department, and spoke to the dispatcher on duty, Paul Wortman. Leslie testified at trial that she informed the dispatcher that she was at 4121 Terrace View apartments and that she had almost been raped. Additionally, she stated the man had a gun and he was stil with her boyfriend in the van. Finally, she testified that she begged the dispatcher to send help and that he responded "Okay" to her request.
Dispatcher Wortman testified that after receiving the call from Leslie he was unsure of the location of Terrace View. Upon consulting the map, he learned that it was located in Toledo and proceeded to call the Toledo Police Department. According to the transcript of the police tape played at trial, Dispatcher Wortman stated:
The evidence then indicates that, upon receiving this information from Wortman, Officer Charles Stuart of the Toledo Police Department, filled out a red dispatch card (signifying high priority call) with a code two designation (signifying a non-life threatening situation so lights and sirens are not needed), and gave the card to the dispatcher on duty, Jerry Hughes. At some point while the card was in the possession of the dispatcher, the card was changed to a code three (signifying use lights and siren, it is a life threatening situation). Thereupon, two units were dispatched to the scene.
In the meantime, Leslie, who was still in Street's apartment, telephoned her father, Peter Sawicki. Leslie testified that she said to her father, ' And he responded, "I'll be right there." (Tr. 481) Thereupon, Peter Sawicki left his home after informing his wife to call the police. Marsha Sawicki, plaintiff-appellee, cross-appellant, phoned the Toledo Police Department and requested that they go to the Terrace View Apartment. She stated that her husband was on his way over there because their daughter had just called informing them that she had almost been raped and needed her father's assistance.
Before Peter Sawicki arrived at the scene, Leslie phoned Ottawa Hills Police Department again. Leslie testified that she repeated the entire story to dispatcher Wortman. Additionally, Leslie complained to the dispatcher, "Where are you?" Also, she told him that she had called her father and once again requested help from the dispatcher. Dispatcher Wortman told her that they would not be responding and he questioned her as to her exact location. At this point Leslie did not answer him but handed the phone to Kimberly Street. While Dispatcher Wortman had Kimberly Street on the phone, he contacted the Toledo Police Department again. According to the transcript of the police tape he stated:
In the meantime, Peter Sawicki arrived at the scene. He found Todd Szabo still holding a gun on Cook inside the van. Peter and Todd pulled Cook from the van. Todd was still on top of Cook holding the gun on him when Cook landed on the ground outside the van. At about this time, Leslie came running out of the apartment building to join her father, Todd and Cook. Some discussion ensued between the parties. At one point, Todd decided the gun was not loaded and tossed it away. Also, Peter sent Leslie for help. As Leslie proceeded toward the apartment building, a fight began between Todd, Peter and Cook. During the fight, Cook obtained the gun and shot Peter and Todd. As Cook fled the scene, the Toledo Police Department arrived. Peter and Todd were taken to the hospital where Peter later died from his wounds.
It is from this incident that Marsha Sawicki, executrix of the estate of Peter Sawicki, and Leslie Sawicki filed a complaint against the Village of Ottawa Hills. The complaint alleged that " * * * as a result of the negligent failure of the police department of the defendant Ottawa Hills to respond to the telephone calls of plaintiff Leslie Ann Sawicki or to be certain that assistance was provided for her, Peter P. Sawicki died * * *." Additionally, the complaint requested damages on claims of survivorship and wrongful death. Additionally, Leslie Sawicki requested damages for the emotional anguish she suffered from being present at her father's shooting.
The defendant, Village of Ottawa Hills answered the complaint and set forth a third party complaint against the City of Toledo. Pursuant to this action, the City of Toledo filed a motion to dismiss. On September 16, 1985, the trial court granted the motion to dismiss. It is from this judgment that the defendant Village of Ottawa Hills filed its first notice of appeal.
Subsequently, a jury rendered judgment for Marsha Sawicki (executrix of the estate of Peter Sawicki) against the Village of Ottawa Hills in the amount of $1,254,000. Additionally, judgment was rendered for Leslie Sawicki against the Village of Ottawa Hills in the amount of $59,412.50.
Pursuant to this judgment, the Village of Ottawa Hills filed a motion for a new trial and a motion for judgment notwithstanding verdict. On November 11, 1985, the trial court denied defendant's motions. The defendant filed its second notice of appeal from this latter judgment rendered by the trial court.
Thereafter, the plaintiff filed a cross-appeal from a judgment entered by the trial court on December 6, 1985. This judgment denied plaintiff's motion for prejudgment interest. It is from these three notices of appeal that this appeal was consolidated. Appellant/cross-appellee, Village of Ottawa Hills advances five assignments of error for this court's consideration.
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