Sawicki v. Village of Ottawa Hills

• Decision Date: 29 June 1988
• Docket Number: No. 87-213,87-213
• Citation: 37 Ohio St.3d 222,525 N.E.2d 468
• Parties: SAWICKI et al., Appellees, v. VILLAGE OF OTTAWA HILLS, Appellant; City of Toledo, Appellee.
• Court: Ohio Supreme Court

Page 222

37 Ohio St.3d 222

525 N.E.2d 468

SAWICKI et al., Appellees, v. VILLAGE OF OTTAWA HILLS, Appellant; City of Toledo, Appellee.

No. 87-213.

Supreme Court of Ohio.

Submitted Jan. 12, 1988.

Decided June 29, 1988.

Syllabus by the Court

1. Generally, a municipality may not be found liable in negligence when its employees act or refuse to act so as to conform to a municipal ordinance and/or a state statute.

2. When a duty which the law imposes upon a public official is a duty to the public, a failure to perform it, or an inadequate or erroneous performance, is generally a public and not an individual injury.

3. The public duty rule, and the special duty exception, comprise a doctrine which is independent of, and accordingly survived the abrogation of, sovereign immunity.

4. In order to demonstrate a special duty or relationship, the following elements must be shown to exist: (1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality's agents that inaction could lead to harm; (3) some form of direct contact between the municipality's agents and the injured party; and (4) that party's justifiable reliance on the municipality's affirmative undertaking.

On the evening of September 17, 1981, following dinner with her family, appellee Leslie Ann Sawicki and her boyfriend, Todd Sabo, went out together. The couple drove around the neighborhood in Todd's van and eventually visited an area nightclub. Afterwards, they stopped in the parking lot of the Terrace View Apartments which had been constructed and were owned by plaintiff's decedent, Peter Sawicki, who was also Leslie's father. This parking lot was located in the city of Toledo but was approximately three hundred yards from the police station of the village of Ottawa Hills, appellant herein.

At approximately midnight, the couple was accosted at gunpoint by one Anthony Cook. After demanding their money, Cook ordered Leslie to utilize wire to tie Todd's hands behind his back. Cook then tightened Todd's bonds, used Todd's belt to secure his feet, and also tied Leslie's hands behind her back. He ordered Leslie into the back of the van, and placed a gag in her mouth. Todd began to plead with Cook not to rape Leslie, and at the same time strained to loosen his bonds. Cook removed Leslie's clothing and struck her across the face when she attempted to resist. As Cook began to loosen his own clothing, Leslie freed her hands and attacked him. Todd had also succeeded in freeing himself and joined the attack. Todd obtained control of the gun, and then ordered Leslie to summon help. After she exited the van, Todd obtained control over Cook's person by sitting upon Cook's stomach, pressing the pistol between Cook's eyes. It was disputed at trial whether Cook attempted further resistance but it seems clear that Todd had communicated his intent to shoot Cook if Cook posed any further threat.

Leslie ran, partially unclothed, into the apartment complex. She did not obtain a response from her grandmother's apartment, but was soon admitted into a neighboring woman's residence. She immediately telephoned the village of Ottawa Hills Police Department and spoke to radio dispatcher Paul Wortman. This call was not recorded and the testimony at trial conflicted as to whether it occurred at 12:25 a.m. or 12:26 a.m. ¹ Considering the conflicting accounts of the content of this conversation in the light most favorable to appellees, as the jury apparently did, Leslie informed dispatcher Wortman that: she had almost been raped by a black male, she was calling from inside apartment number seven at 4121 Terrace View North, the assailant was still in the van with her boyfriend, and the assailant had a gun. She requested that the dispatcher "send help" to which he responded "OK." It appears that dispatcher Wortman was alone in the police station and could not leave his post. It is undisputed that there were two Ottawa Hills police units on patrol in Ottawa Hills.

Dispatcher Wortman called the Toledo Police Department at exactly 12:26:54 a.m. His call was mechanically recorded and logged. He reported "a rape in progress at 4-1-2-5 Terrace View North. Supposed to have a suspect a black male in a van. That's all I got and she hung up." (Emphasis added.) Thereafter, Leslie called her parents who lived in Ottawa Hills and, after informing her father of the situation, she requested that he come to the apartment complex. Peter Sawicki told his wife to call the Toledo Police Department for help, as they both knew that the apartment complex was in the city of Toledo. Sawicki then went directly to the apartments barefoot and dressed only in his pajamas.

The phone call from appellee Marsha Sawicki to the Toledo Police Department was received and logged at 12:27:07 a.m. and lasted until 12:30:13 a.m. She informed them of the situation, emphasizing that her husband was on the way to the crime scene. At approximately the same time, Leslie Sawicki made a second call to the Ottawa Hills Police Department and repeated her account of the events, adding that her father was on the way over. Dispatcher Wortman, who had discovered that the Terrace View apartment complex was outside the jurisdiction of Ottawa Hills, then informed her that Ottawa Hills would not be responding, but that the Toledo Police Department should be on its way. Leslie then discarded the telephone which was picked up by the apartment resident. The resident informed dispatcher Wortman of her concern that someone would surely be shot if help did not arrive. Wortman told her to "hold on" and he made a second call to the Toledo Police Department which was received and logged at 12:31 a.m. He gave the correct address and made a complete and accurate account of the events. At 12:31:08 a.m. and apparently in response to one or both of the 12:27 a.m. calls, the Toledo Police Department dispatched two units to the scene. Both units were originally to have proceeded under a "Code 2" high priority response order, but instead the response was upgraded to a "Code 3" order, requiring all possible speed with flashing lights and siren. The Toledo police units arrived within two minutes of being dispatched.

Meanwhile, Peter Sawicki arrived at the apartment complex at approximately 12:30 a.m. He parked his auto beside the van and exited his vehicle, leaving the headlights on and the door open. After ascertaining that Todd and Cook were inside the van, Peter told Todd to bring Cook outside, at which time both men physically removed Cook from the van. At all times Todd kept one hand on Cook and the other on the pistol pointed at Cook's head. Cook was placed on the ground and Todd straddled him as in the van. Although there is some conflict between Todd's statement given to police immediately after the events and his later trial testimony, it is yet clear that Peter Sawicki struck Cook and/or kicked him and that Leslie arrived and was ordered by Peter Sawicki to strike Cook, which she did. At this time, Todd tossed away the firearm, but did not place it beyond the reach of Cook.

Cook obtained control of the weapon, and shot Todd in the head and neck. Cook then shot Peter Sawicki in the neck and fired at Leslie who was on her way back to the apartment. As Cook fled in an automobile parked nearby, ² Toledo police units arrived. The time of their arrival, as set forth in the briefs of the parties, was 12:33:40 a.m., which was only seconds after Peter Sawicki and Todd Sabo had been shot. Todd Sabo eventually recovered from his injuries, although bullet fragments remain lodged in his body. Peter Sawicki died at the hospital.

Marsha Ann Sawicki, as executrix of the estate of Peter Sawicki, and Leslie Ann Sawicki filed various claims against the village of Ottawa Hills. The central allegation of the claims was that "as the result of the negligent failure of the police department of * * * Ottawa Hills to respond to the telephone calls of * * * Leslie Ann Sawicki, or to be certain that assistance was provided for her, Peter P. Sawicki died * * *." The village of Ottawa Hills answered and set forth a third-party complaint, alleging the negligence of the city of Toledo. Pursuant to a Civ.R. 12(B)(6) motion to dismiss, the city of Toledo was dismissed from the action. Following a trial upon the merits, the jury found in favor of the Sawickis, stating by their answers to interrogatories that the Ottawa Hills Police Department had violated a "special duty" to Leslie Ann Sawicki and Peter Sawicki, which failure proximately caused their injuries and the death of Peter Sawicki. Damages were awarded by the trial court in the amount of $1,254,000 for Marsha Ann Sawicki in her capacity as executrix, and $59,412.50 for Leslie Ann Sawicki.

Ottawa Hills timely perfected its appeal to the court of appeals, asserting, among other arguments, that no duty was owed to appellees, that no failure of appellant proximately caused the injuries complained of and, accordingly, that a directed verdict should have been granted at the close of appellees' case. Appellant also asserted that the dismissal of the city of Toledo was error. The court of appeals affirmed the trial court in a divided opinion, Resnick, J., dissenting.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Connelly, Soutar & Jackson, William M. Connelly, Steven P. Collier and Kevin E. Joyce, Toledo, for appellees Marsha Ann Sawicki and Leslie Ann Sawicki.

Manahan, Pietrykowski, Bamman & Delaney, John A. Pietrykowski and Gerald R. Kowalski, Toledo, for appellant.

Sheldon M. Rosen, Director of Law, and Robert G. Young, Toledo, for appellee City of Toledo.

Calfee, Halter & Griswold and John E. Gotherman, Cleveland, urging reversal for amicus curiae, Ohio Municipal League.

HOLMES, Justice.

In the case sub judice the trial court instructed...