Smith v. Mcbride

• Decision Date: 20 September 2011
• Docket Number: No. 2010–0809.,2010–0809.
• Citation: 2011 -Ohio- 4674,955 N.E.2d 954,130 Ohio St.3d 51
• Parties: SMITH, Appellant,v.McBRIDE et al.; Clinton Township, Appellee, et al.
• Court: Ohio Supreme Court

130 Ohio St.3d 51

955 N.E.2d 954

2011 -Ohio- 4674

SMITH, Appellant,

v.McBRIDE et al.; Clinton Township, Appellee, et al.

No. 2010–0809.

Supreme Court of Ohio.

Submitted April 20, 2011.Decided Sept. 20, 2011.

[Ohio St.3d 51] Syllabus of the Court

The absence of a mutual-aid agreement between two jurisdictions is not determinative of whether a peace officer who leaves his jurisdiction is on an emergency call for purposes of R.C. 2744.01(A) and 2744.02(B)(1)(a).

Brian G. Miller Co., L.P.A., and Brian G. Miller, Columbus, for appellant.

Surdyk, Dowd & Turner Co., L.P.A., Jeffrey C. Turner, Boyd W. Gentry, and Joshua R. Schierloh, Miamisburg, for appellee.Murray & Murray Co., L.P.A., Margaret M. Murray, and Michael Stewart, Sandusky, urging reversal for amicus curiae Ohio Association for Justice.Schroeder, Maundrell, Barbiere & Powers and Jay D. Patton, Mason, urging affirmance for amicus curiae Ohio Association of Civil Trial Attorneys.

CUPP, J.

{¶ 1} In this political-subdivision-immunity case, a township police officer was involved in a motor-vehicle accident outside his own jurisdiction while responding to a general dispatch call for assistance from an officer in another jurisdiction. [Ohio St.3d 52] At issue is whether the police officer can be considered to have been on an emergency call at the time of the accident for purposes of R.C. Chapter 2744 when the evidence is insufficient to establish the existence of a mutual-aid agreement between the jurisdictions. We hold that he can, because application of the immunity statutes in this case does not depend on whether a mutual-aid agreement existed. Accordingly, we affirm the judgment of the court of appeals.

I. Facts and Procedural History

{¶ 2} Late in the evening of March 14, 2006, Clinton Township Police Sergeant Travis Carpenter ¹ was at his police headquarters in Clinton Township, an unincorporated area of Franklin County, when he heard a general dispatch call from a Franklin County Sheriff's deputy requesting assistance because the deputy was on foot and was pursuing a fleeing suspect. The call originated about two miles from Carpenter's location in what Carpenter knew to be a high-crime area outside of Clinton Township's jurisdiction.

{¶ 3} Carpenter immediately headed to the location in a marked police cruiser. Although Carpenter was speeding, he was not using his siren or emergency lights. Driving east in light traffic on Morse Road, he approached the intersection with Chesford Road. Carpenter had a green light to proceed through the intersection, which is located in the city of Columbus, a third jurisdiction.

{¶ 4} Just prior to Carpenter's entry into the intersection, a vehicle that had been traveling west on Morse Road made a left turn in front of him to go south on Chesford Road. That vehicle was closely followed by a second vehicle, which also attempted to make a left turn onto Chesford Road. The latter vehicle and Carpenter's cruiser collided in the intersection.

{¶ 5} The speed limit on Morse Road at this location was 45 miles per hour. Evidence in the record indicates that Carpenter was traveling about 64 miles per hour at the time.

{¶ 6} Vashawn McBride was the driver of the vehicle that collided with the cruiser, and he was severely injured in the crash. Plaintiff-appellant, Lea Smith, a passenger in McBride's vehicle who was asleep at the time of the accident, was also injured.

{¶ 7} Smith filed a personal-injury suit naming as defendants, inter alia, McBride, Carpenter, and Clinton Township,² among others. After filing depositions[Ohio St.3d 53] in the case, Carpenter and Clinton Township moved for summary judgment, asserting that they were entitled to immunity under R.C. Chapter 2744. The trial court granted the motion for summary judgment as to both parties, concluding that because Carpenter had a professional obligation to respond to the dispatch, he was on an emergency call for purposes of R.C. 2744.01(A) and 2744.02(B)(1)(a). The trial court also determined that Carpenter had not engaged in willful or wanton misconduct for purposes of R.C. 2744.02(B)(1)(a). Finally, the trial court determined that Carpenter's behavior had not been reckless for purposes of R.C. 2744.03(A)(6).

{¶ 8} The trial court later granted Smith's motion for Civ.R. 54(B) certification, and she took an immediate appeal of the immunity issues.

{¶ 9} In her appeal to the Tenth District Court of Appeals, Smith contended that Clinton Township was not entitled to immunity under R.C. 2744.01(A) and 2744.02(B)(1)(a), because the record did not establish that there was a mutual-aid agreement between Clinton Township and Franklin County. Smith argued that in the absence of such an agreement, Carpenter did not have a professional obligation to respond to the dispatch that ultimately caused him to be at the intersection outside of his jurisdiction where the accident occurred and, thus, summary judgment was improper. Smith also asserted that summary judgment should not have been granted because under R.C. 2744.02(B)(1)(a) and 2744.03(A)(6)(b), Carpenter's operation of his cruiser was reckless and constituted wanton misconduct.

{¶ 10} The appellate court, in a divided decision, affirmed the trial court's grant of summary judgment in all respects.

{¶ 11} We accepted Smith's appeal under our discretionary jurisdiction for review of two propositions of law. 126 Ohio St.3d 1543, 2010-Ohio-3855, 932 N.E.2d 338. The first proposition asserts that absent a mutual-aid agreement or equivalent legislative resolution, a police officer does not have a professional obligation to respond to a call outside his jurisdiction when he is not engaged in hot pursuit and therefore cannot be on an emergency call for purposes of immunity under R.C. Chapter 2744 when responding. The second proposition asserts that such an agreement must be in writing. Because we hold with regard to the first proposition that such an agreement is not necessary, we need not address Smith's second proposition.

II. Analysis

{¶ 12} Summary judgment is appropriate when an examination of all relevant materials filed in the action reveals that “there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Civ.R. 56(C). Our determination whether summary judgment was appropriate[Ohio St.3d 54] is made upon a de novo review. Comer v. Risko, 106 Ohio St.3d 185, 2005-Ohio-4559, 833 N.E.2d 712, ¶ 8.

A. R.C. Chapter 2744

{¶ 13} In determining whether a political subdivision is immune from tort liability under R.C. Chapter 2744, courts apply a three-tiered analysis. Colbert v. Cleveland, 99 Ohio St.3d 215, 2003-Ohio-3319, 790 N.E.2d 781, ¶ 7; Lambert v. Clancy, 125 Ohio St.3d 231, 2010-Ohio-1483, 927 N.E.2d 585, ¶ 8. The first tier involves the general grant of immunity of R.C. 2744.02(A)(1), which provides that “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.”

{¶ 14} Political-subdivision immunity is not absolute, however. The second tier of the analysis focuses on the five exceptions to immunity listed in R.C. 2744.02(B), which can expose the political subdivision to liability. Colbert at ¶ 8; Lambert at ¶ 9. In cases involving the alleged negligent operation of a motor vehicle by an employee of a political subdivision, the second tier of the analysis includes a consideration whether the specific defenses of R.C. 2744.02(B)(1)(a) through (c) apply to negate the immunity exception of R.C. 2744.02(B)(1). Colbert at ¶ 8.

{¶ 15} If any of the exceptions to immunity of R.C. 2744.02(B) do apply, and if no defense in that section applies to negate the liability of the political subdivision under that section, then the third tier of the analysis requires an assessment of whether any defenses in R.C. 2744.03 apply to reinstate immunity. Id. at ¶ 9; Lambert at ¶ 9.³

B. R.C. 2744.02(B)(1)(a) and 2744.01(A)

{¶ 16} The statutes central to the resolution of this case are R.C. 2744.02(B)(1)(a) and 2744.01(A). Under R.C. 2744.02(B)(1), a political subdivision is generally liable for injury, death, or loss caused by the negligent operation of a motor vehicle by one of its employees acting in the scope of employment. However, a political subdivision is granted a full defense to this liability by R.C. 2744.02(B)(1)(a) if the employee was “[a] member of [the] municipal corporation police department or any other police agency [and] was operating [the] motor vehicle while responding to an emergency call and the operation of the vehicle did not constitute willful or wanton misconduct.”

[Ohio St.3d 55] {¶ 17} “Emergency call” is defined in R.C. 2744.01(A) 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.”

{¶ 18} R.C. 2744.02(B)(1)(a), therefore, provides a full defense to a political subdivision for motor-vehicle liability when its three conditions are met: (1) the vehicle's operator was a member of the municipal corporation's police department, (2) the officer was responding to an emergency call, and (3) the operation of the vehicle did not constitute willful or wanton misconduct.

{¶ 19} The appeals court affirmed the trial court's finding that Carpenter's operation of his vehicle did not constitute willful or wanton misconduct for purposes of R.C. 2744.02(B)(1)(a). Because Smith has not appealed that aspect of the appeals court decision, that matter has been conclusively determined in Clinton Township's favor. In addition, Smith has not appealed from the appellate court's holding that Carpenter did not act in a wanton or reckless manner for purposes...