McGuire v. Lovell, 9-97-77.

• Decision Date: 31 March 1998
• Docket Number: No. 9-97-77.,9-97-77.
• Citation: 715 NE 2d 587,128 Ohio App.3d 473
• Parties: MCGUIRE, Appellant, v. LOVELL et al., Appellees.
• Court: Ohio Court of Appeals

128 Ohio App.3d 473

715 NE 2d 587

MCGUIRE, Appellant, v. LOVELL et al., Appellees.^*

No. 9-97-77.

Court of Appeals of Ohio, Third District, Marion County.

Decided March 31, 1998.

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J.C. Ratliff, for appellant.

Day & Cook L.P.A., David L. Day and Douglas J. Segerman, for appellees.

THOMAS F. BRYANT, Judge.

Appellant, Harold L. McGuire, appeals from a judgment of dismissal entered by the Court of Common Pleas of Marion County upon a motion for summary judgment filed by appellees, Deputy Brian L. Lovell, Marion County Sheriff John H. Butterworth and Marion County Commissioners.

McGuire brought a suit in negligence arising out of an auto collision between Deputy Lovell and the pickup truck in which McGuire was an occupant. On the afternoon of November 9, 1992, Deputy Lovell was off duty, but travelling to work, westbound along State Route 309 in Marion County. Lovell was driving his sheriff's cruiser, which he takes home over night. At some point on his way to work Deputy Lovell claims to have overheard a radio dispatch concerning a burglary in progress. Lovell states he radioed dispatch to advise that he was available to assist and continued his westbound route on SR 309.

It is uncontested that at approximately 3:15 p.m., Deputy Lovell drove through a red light on State Route 309 ("SR 309") and collided with a pickup truck at the intersection of Kensington/Madison Avenue and SR 309. The truck contained two occupants in addition to McGuire, Ray Willis, seated in the middle, and Jake Steed, the driver. The three young men were travelling north on Kensington and intended to cross the intersection of Kensington and SR 309 to northbound Madison Avenue. Northbound traffic had a green light as their truck approached the intersection. Upon entering the intersection, Deputy Lovell struck the right passenger door of the truck with the left front side of his sheriff cruiser. The impact caused the truck to flip over onto its top and slide across the intersection before coming to a rest.

McGuire, nearest to the point of impact, claims to have suffered a shoulder injury as a result of this collision. Appellees did not challenge this assertion in their motion for summary judgment. The appellees did claim, however, that they were not liable for McGuire's injuries as a matter of law based on political subdivision immunity as set forth in R.C. 2744.02. The trial court granted the appellees' motion for summary judgment, and McGuire now takes this appeal.

I

McGuire raises one assignment of error:

"The Trial Court erred in granting Appellee's sic motion for summary judgment when there existed a genuine issue as to material facts."

When reviewing summary judgment entered by a trial court, an appellate court conducts an independent review of the matters supporting the granting of the entry of summary judgment. Midwest Specialties, Inc. v. Firestone Tire & Rubber Co. (1988), 42 Ohio App.3d 6, 536 N.E.2d 411, cause dismissed (1988), 39 Ohio St.3d 710, 534 N.E.2d 94. Summary judgment is available under Civ.R. 56(C) when the movant establishes the following: (1) that there is no genuine issue as to any material fact, (2) that the moving party is entitled to judgment as a matter of law, and (3) that reasonable minds can come to but one conclusion and, viewing the evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the nonmoving party. Bostic v. Connor (1988), 37 Ohio St.3d 144, 524 N.E.2d 881.

McGuire asserts a genuine issue of material fact exists as to whether appellees are entitled to immunity as a matter of law. Appellees argue they are immune from liability, as Deputy Lovell was responding to an "emergency call" as defined in R.C. 2744.01(A) and his misconduct, if any, was neither wanton or willful as set forth in R.C. 2744.02(B)(1)(a), nor reckless as set forth in R.C. 2744.03(A)(6)(b).

Political subdivisions are afforded limited immunity for the wrongful acts of their employees. As stated in R.C. 2744.02(A)(1):

"Except as provided in division (B) of this section, a political subdivision is not liable in damages in a civil action for injury, death, or loss to person 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."

The exception in division (B) states in pertinent part:

"(1) Except as otherwise provided in this division, political subdivisions are liable for injury, death, or loss to person 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. The following are full defenses to such liability:

"(a) A member of a municipal corporation police department or any other police agency was operating a motor vehicle while responding to an emergency call and the operation of the vehicle did not constitute willful or wanton misconduct * * *."

A further limitation to the immunity granted to an employee of a political subdivision is found in R.C. 2744.03(A)(6), which states in part:

"In addition to any immunity or defense referred to in division (A)(7) of this section and in circumstances not covered by that division, the employee is immune from liability unless one of the following applies:

"* * *

"(b) The employee's acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner."

McGuire first argues summary judgment was not proper, as a triable issue exists as to whether Deputy Lovell was responding to an emergency call to duty. We find this argument well taken. To avail oneself of the immunity protection afforded police agencies for the negligent operation of motor vehicles, the operator of the police vehicle must have been "responding to an emergency call." R.C. 2744.01(A).

An "emergency call" is defined as "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." Id.

Accordingly, Deputy Lovell, to have been responding to an emergency call, must have at least been called to duty. What may constitute a call to duty has been left broad by the legislature. However, clearly required is some type of "call to duty" that initiates an officer's response. Id.

At his deposition, Deputy Lovell stated that on the afternoon of November 9, 1992, he was travelling west in his sheriffs cruiser along SR 309. Lovell concedes he was off duty and merely on his way to work at that time. When asked if he was on duty when the accident occurred, Lovell responded, "I was called in or I wasn't called in but I was responding to back up a unit." (Emphasis added.) Lovell later clarified this response by stating that while en route to work he overheard a dispatch on his police radio concerning a burglary was in progress and "I called and told them I was on the air * * * and * * * asked if they wanted me." Lovell did not state whether dispatch responded to his offer of assistance. After calling into dispatch, however, Lovell maintains, he then felt he was on duty and responding to an emergency call.

Appellees also point to the deposition of Mrs. Bard, who was driving a school van behind Deputy Lovell west on SR 309, in support of their contention that Lovell was responding to an emergency call. Appellees note that Bard testified she observed Deputy Lovell's emergency lights and heard his siren come on prior to the intersection of Kensington and SR 309. However, Bard's testimony, when viewed in a light most favorable to McGuire as required by Civ. R. 56(C), falls short of its proffer. Bard's testimony could support at least two equally divergent inferences: (1) that Lovell was responding to an emergency call as a result of being called upon to do so or (2) that Lovell, while off duty, was not dispatched or called upon to respond an emergency, but acted on his own accord.

The nature of the call as a burglary in progress is said by the appellees to be supported by a dispatcher's affidavit and radio logs. Appellees' contention, however, is not well taken. The dispatcher, through her affidavit, attested only to the accuracy of the radio log report for November 9, 1992, between the hours of 2:00 p.m. and 4:00 p.m. Contrary to counsel's assurances at oral argument, no explanation is given for the "code" numbers contained in the log report. Accordingly, we are unable to discern whether the radio traffic referred to at 15:12 hours, concerning a "code 12A," relates to a burglary pursuit. A burglary pursuit has been recognized as a sufficient "emergency" for purposes of the immunity statute. Moore v. Columbus (1994), 98 Ohio App.3d 701, 649 N.E.2d 850; Ladina v. Medina (Jan. 31, 1990), Medina App. No. 1825, unreported, 1990 WL 7993.

Further, when viewing the radio logs in a light most favorable to McGuire, Lovell's claim that he called dispatch prior to entering the chase is called into question. Though certain code numbers in the November 9, 1992 radio log are not defined, the numbers corresponding with particular sheriff officers are. "43" is listed for Deputy Lovell. There exist, however, no radio transmissions from or to "U-43" until after the 15:15 (3:15 p.m.) dispatcher report of an incident "involving U-43," at "Madison and SR 309 West." The only radio transmission apparent, from or to Deputy Lovell, is listed as "Time: 15:17 3:17 p.m. From: U-43 To: SO."

In Horton v. Dayton (1988), 53 Ohio App.3d 68, 558 N.E.2d 79, an officer and city sought immunity where they argued it was undisputed an officer's collision occurred while in response to an emergency call. There, a triable issue of fact was found based, in part, on the officer's radio card failing to evince that he was actually...