Argabrite v. Neer , 2015 Ohio 125 ( 2015 )

[Cite as Argabrite v. Neer, 2015-Ohio-125.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
PAMELA ARGABRITE :
: Appellate Case No. 26220
Plaintiff-Appellant :
: Trial Court Case No. 12-CV-7402
v. :
:
JIM NEER, et al. : (Civil Appeal from
: (Common Pleas Court)
Defendants-Appellees :
:
...........
OPINION
Rendered on the 16th day of January, 2015.
...........
KENNETH J. IGNOZZI, Atty. Reg. #0055431, Dyer, Garofalo, Mann, & Schultz, 131 North
Ludlow Street, Suite 1400, Dayton, Ohio 45402
Attorney for Plaintiff-Appellant, Pamela Argabrite
LISA A. LUEBKE, Atty. Reg. #0081315, and JOHN CUMMING, Atty. Reg. #0018710, 301
West Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Defendants-Appellees, Tony Ball, Daniel Adkins, Julie Stephens and
Karen Osterfield
LAWRENCE E. BARBIERE, Atty. Reg. #0027106, Schroeder, Maundrell, Barbiere &
Powers, 5300 Socialville Foster Road, Suite 200, Mason, Ohio 45040
Attorney for Defendant-Appellee, John Dipietro
EDWARD J. DOWD, Atty. Reg. #0018681, and JOSHUA SCHIERLOH, Atty. Reg.
#0078325, 1 Prestige Place, Suite 700, Miamisburg, Ohio 45342
Attorneys for Defendants-Appellees, Jim Neer and Gregory Stites
.............
HALL, J.
2
{¶ 1} Around noon on July 11, 2011, Miami Township police officers Jim Neer and
Gregory Stites pursued fleeing burglary suspect Andrew Barnhart along streets in Miami
Township and Washington Township while Deputy Chief John DiPietro supervised from the
police department. Deputy Tony Ball and Sergeant Daniel Adkins of the Montgomery County
Sheriff’s Office were also providing assistance. The pursuit ended when the suspect pulled
into the opposing traffic lane and crashed head-on into the oncoming vehicle driven by Pamela
Argabrite. The suspect was killed, and Argabrite was seriously injured. Argabrite filed a
negligence action against the five officers involved in the pursuit to recover damages for her
injuries.
{¶ 2} The defendants all moved for summary judgment, contending that they are
immune from liability under R.C. 2744.03(A)(6)(b) of the Political Subdivision Tort Liability
Act, which “provides immunity to employees of a political subdivision for acts that are not
committed in a wanton or reckless manner,” Anderson v. Massillon, 134 Ohio St. 3d 380,
2012-Ohio-5711, 983 N.E.2d 266, ¶ 39. The defendants also contended that they were not the
proximate cause of Argabrite’s injuries under the rule applied by this Court in Whitfield v.
Dayton, 167 Ohio App. 3d 172, 2006-Ohio-2917, 854 N.E.2d 532 (2d Dist.)1, which requires
extreme or outrageous conduct by police officers before proximate cause is established in a
pursuit where the injuries result from a crash by the pursued vehicle. The county officers also
argued that they were not pursuing the suspect. Argabrite argued that the pursuit was wanton and
reckless because the officers engaged in a high-speed chase through commercial and residential
areas during heavy traffic when the suspect was not violent and could have been later
1
We note that Whitfield was effectively overruled, in part, on other grounds by Anderson v. Massillon, 134
Ohio St. 3d 380, at ¶ 29-31.
3
apprehended with a warrant.
{¶ 3} The trial court granted the summary judgment motions on the proximate-cause
issue. As to the county officers, the court concluded that no reasonable juror could find that the
conduct of either officer was extreme or outrageous. Officer Adkins, said the court, was not
involved in the pursuit, and Officer Ball’s tracking of the suspect was at a distance and at
reasonable speeds, breaking off well before the accident in favor of the Miami Township officers.
As to the township officers, the trial court concluded that their conduct was reckless, but no
reasonable juror could conclude that their conduct was extreme or outrageous.
{¶ 4} Argabrite appealed, alleging in the sole assignment of error that the trial court
erred by granting summary judgment. Our review of a summary judgment decision is de novo.
Grafton v. Ohio Edison Co., 77 Ohio St. 3d 102, 105, 671 N.E.2d 241 (1996). This means we use
the same standard that the trial court should have used, and we determine whether the evidence
presents a genuine issue of fact for trial. Dupler v. Mansfield Journal Co., 64 Ohio St. 2d 116,
413 N.E.2d 1187 (1980). The trial court’s decision is not granted any deference by the reviewing
appellate court. Brown v. Scioto Cty. Bd. Of Commrs., 87 Ohio App. 3d 704, 711, 622 N.E.2d
1153 (4th Dist.1993). Therefore, we could review and analyze whether the trial court’s
conclusion that Township officers Neer and Stites were reckless is supported by the record or, if a
genuine issue of recklessness is found, whether that behavior was the proximate cause of
Barnhart’s collision with the Argabrite vehicle. If there is no genuine issue of either recklessness
or proximate cause resulting from recklessness, then the officers are entitled to immunity under
R.C. 2744.03(A)(6). But we need not, and do not, engage in that analysis at this juncture because
of our determination that the no-proximate-cause rule of Whitfield v. Dayton, requiring extreme
4
or outrageous conduct, is dispositive of this appeal.
{¶ 5} Argabrite asks us to reconsider the proximate-cause rule applied in Whitfield.
This rule comes from the Ninth District’s “no proximate cause” holding in Lewis v. Bland:
“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.” 75 Ohio App. 3d 453, 456, 599 N.E.2d 814 (9th Dist.1991). We adhered to
this holding in Whitfield because we recognized it as “established law” in Ohio. Whitfield, 167
Ohio App. 3d 172, 2006-Ohio-2917, 854 N.E.2d 532, at ¶ 59. “Ohio appellate districts, including
our own,” we said, “* * * apply the ‘no proximate cause’ holding of Lewis to cases where
pursuits end in injury to innocent third parties or to occupants of the pursued vehicle without
direct contact with a police vehicle.” Id. at ¶ 57, citing Jackson v. Poland Twp., 7th Dist.
Mahoning Nos. 96 CA 261, 97 CA 13, and 98 CA 105, 1999 WL 783959 (Sept. 29, 1999);
Pylypiv v. Parma, 8th Dist. Cuyahoga No. 85995, 2005-Ohio-6364; Shalkhauser v. Medina, 148
Ohio App. 3d 41, 2002-Ohio-222, 772 N.E.2d 129 (9th Dist.); Heard v. Toledo, 6th Dist. Lucas
No. L-03-1032, 2003-Ohio-5191, ¶ 12 (rejecting an argument that Lewis is “outdated, contrary to
sound public policy and should no longer govern Ohio cases”); and Sutterlin v. Barnard, 2d Dist.
Montgomery No. 13201, 1992 WL 274641 (Oct. 6, 1992) (a previous case in which this district
followed Lewis’s approach).
{¶ 6} According to Argabrite, the “no proximate cause” rule is the minority position in
this country: “The majority of jurisdictions, focusing on the importance of public safety, adopt
5
the longstanding, general rules of proximate causation in which a police officer may be liable for
damages where his actions are a substantial factor in bringing about the end result, or at least
when their conduct is reckless. Courts that reject the ‘no proximate cause rule’ have urged that
using the majority standard increases public safety and is generally more consistent with the
policies of police agencies.” (Brief of Plaintiff-Appellant, Pamela Argabrite, 25). Argabrite also
cites the dissenting judge in Whitfield, Judge Brogan, who disagreed with the “no proximate
cause” rule. He agreed with the dissenting judge in Lewis that the rule fails to recognize that “
‘multiple actors can combine to provide causation in a given instance.’ ” Whitfield at ¶ 118
(Brogan, J., dissenting), quoting Lewis at 459 (Cacioppo, J., dissenting). Judge Brogan agreed
with the majority view, that if a plaintiff alleges police negligence in a pursuit, the issue of
proximate cause should be considered simply a question of fact. Rather, we should say that Judge
Brogan agrees with the majority view. He is the trial judge in this case, and in his
summary-judgment decision he urges us to reverse Whitfield on this point.
{¶ 7} The “no proximate cause” rule is still the established law in this state. Since
Whitfield, no Ohio court has questioned the rule, and at least one has rejected an argument not to
follow it, see Perry v. Liberty Twp., 11th Dist. Trumbull No. 2012-T-0056, 2013-Ohio-741, ¶
18-21. We are not convinced that this is the case in which to reconsider the rule.
{¶ 8} The remaining issue is whether the trial court applied the “no proximate cause”
rule correctly in this case. To determine whether the police officers’ conduct was extreme or
outrageous in Whitfield we referred to the description of extreme and outrageous conduct adopted
by the Ohio Supreme Court: The conduct is “ ‘so extreme in degree, as to go beyond all possible
bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized
6
community. Generally, the case is one in which the recitation of the facts to an average member
of the community would arouse his resentment against the actor, and lead him to exclaim,
“Outrageous!” ’ ” Yeager v. Local Union 20, Teamsters, Chauffeurs, Warehousemen, & Helpers
of America, 6 Ohio St. 3d 369, 375, 453 N.E.2d 666 (1983), quoting 1 Restatement of the Law 2d,
Torts, Section 46, Comment d (1965). “Obviously, this is an exceptionally difficult standard to
meet.” Whitfield, 167 Ohio App. 3d 172, 2006-Ohio-2917, 854 N.E.2d 532, at ¶ 61.
{¶ 9} “In a case decided on summary judgment, we must determine whether an issue of
material fact remains to be litigated, whether the moving party is entitled to judgment as a matter
of law, and whether when viewing the evidence most strongly in favor of the nonmoving party,
reasonable minds can only reach a conclusion that is adverse to the nonmoving party.” Snyder v.
Ohio Dept. of Natural Resources, Slip Opinion No. 2014-Ohio-3942, ¶ 20, citing Civ.R. 56(C),
and Temple v. Wean United, Inc., 50 Ohio St. 2d 317, 327, 364 N.E.2d 267 (1977). The evidence
here is primarily the depositions of the defendant police officers plus the depositions and
affidavits of two experts retained by Argabrite. About the relevant facts the evidence shows no
genuine dispute. The question here is whether a reasonable mind, viewing the evidence most
strongly in Argabrite’s favor, could find that the conduct of any of the officers was extreme and
outrageous, that is, “atrocious, and utterly intolerable in a civilized society.”
{¶ 10} At 11:37 a.m. on July 11, 2011, Sergeant Rex Thompson was sitting in his office
at the Miami Township Police Department when he heard on his police radio dispatch that there
was a burglary in progress in Washington Township. The suspects were identified as two black
males who had just broken into a residence, taken some items, and were leaving in a white
vehicle without a front license plate. About 15 minutes later, the suspects’ vehicle was further
7
described as a white, older model “box style” Chevy Caprice, missing its hubcaps. The suspects
were said to be wearing white t-shirts and fleeing in the direction of Interstate 675.
{¶ 11} Sergeant Thompson was the shift supervisor of the Miami Township police road
patrol division that day and was in charge of all the Miami Township police officers and
responsible for any police pursuits. Thompson left his office and got into his cruiser so that he
could monitor the roadways nearby in the event the suspects’ vehicle drove past. While
Thompson monitored the roadway, he heard on the radio one of his patrol officers tell officer
Gregory Stites that the description of the car involved in the burglary sounded like a car last seen
at a residence on Mardell Drive. Thompson radioed Stites that he would meet him on Mardell
Drive to investigate.
{¶ 12} Thompson arrived first. Parked in the driveway at 2037 Mardell Drive, he saw an
older, white Chevy Caprice with no hubcaps. The driver’s side door was open and someone was
sitting in the driver’s seat with a leg draped out the door. Thompson pulled into the driveway and
parked his cruiser 6 to 8 feet behind the car. Meanwhile, Stites had arrived and pulled up to the
curb.
{¶ 13} Thompson got out and slowly approached the car, hoping to catch its occupant
off-guard. Thompson was within 10 feet of the open driver’s side door when the person sitting in
the driver’s seat exited the car, talking on a cell phone. He startled when he saw Thompson and
immediately turned around and got back into the car. Thompson, concerned that the man might
be attempting to get a weapon, drew his gun and started shouting at the man to stop. But he didn’t
stop. Instead, he slammed the car door closed and started the engine. Thompson moved to within
touching distance of the driver’s side and continued to shout to the suspect through the open
8
driver’s side window, “Police, stop, don’t do it.” (Thompson dep. 21). The suspect didn’t listen.
He revved the engine, dropped the car into reverse, and tires spinning, slammed into Thompson’s
cruiser. The suspect then threw the car into drive and smashed into the brick garage in front of
him. Again the suspect dropped into reverse and slammed into the cruiser. Suddenly, the
passenger-side door opened and a man, who Thompson had not seen, leapt out and started to run.
At the same time, the suspect threw the car into drive and cranked the steering wheel to the right.
Its tires spinning, the car tore off a corner section of the brick garage and escaped down the side
yard. The car drove through several back yards before making it back to Mardell Drive.
{¶ 14} Thompson called in the license plate of the fleeing car. Then, since there were
other officers around, he turned his attention to the fleeing passenger. Thompson found the man
laying in the ravine behind the house, where the man had broken his leg. After calling for medical
assistance, Thompson stayed with the man and asked him the name of the driver, but the man
refused to say.
{¶ 15} Miami Township police officer Jim Neer was on patrol a few blocks away from
Mardell Drive when he heard the radio broadcast about the burglary and the white car on Mardell
Drive. He headed that way, arriving on the street just in time to see the car going through the side
yard. Neer turned on his lights and sirens and told dispatch that he was in pursuit. Officer Stites,
parked in front of the Mardell Drive house, joined Neer in the pursuit.
{¶ 16} John DiPietro was the Deputy Chief of Police for Miami Township. When the
radio broadcast about the burglary went out, he was at the police service garage. Initially,
DiPietro only heard a small portion of the information relayed over the radio as he was talking
with people at the garage, and the radio did not have his full attention. DiPietro did hear a
9
transmission from Thompson stating that he was on patrol looking for the suspects’ vehicle. Then
DiPietro thought he heard Thompson say that he had been hit. Shortly thereafter, when DiPietro
heard Thompson say that he was out of service, he started paying attention. DiPietro was not
entirely sure what had just occurred, but based on what he had heard, he assumed that some sort
of violent encounter had taken place between Thompson and the suspect. After it became
apparent to DiPietro that several officers were now pursuing the suspect, and that Thompson was
out of service, DiPietro realized that it was his duty, as the next highest ranking officer listening
to the radio, to assume control of the pursuit, which he did at 11:54 a.m. By then, DiPietro had
left the service garage and was heading back to the police department. He began monitoring the
pursuing officers’ actions and asked them to keep calling out their locations and any other
information. DiPietro’s intention was to have other officers get ahead of the pursuit and deploy
Stop Sticks to halt the suspect’s vehicle. He also asked dispatch to issue an alert to surrounding
agencies.
{¶ 17} From Mardell Drive the suspect’s car headed south on Graceland Street and then
east on State Route 725. At the Lyons Road intersection the light was red, and the suspect slowed
as he approached the intersection before going into the opposing lane, through the red light, and
north on Lyons Road. Neer, then Stites, cautiously followed through the intersection. By the time
Neer was on Lyons Road, the suspect was more than 100 yards ahead of him. At McEwen Road,
the suspect slowed and turned south. As the suspect approached S.R. 725, he slowed and waited
for traffic to clear before continuing. Neer and Stites also slowed before proceeding through the
intersection, “inch[ing] [their] way through it as well.” (Stites dep. 39). Captain Karen Osterfeld
of the Montgomery County Sheriff’s Office assisted by blocking westbound traffic from entering
10
the S.R. 725-McEwen Road intersection.
{¶ 18} Further south of S.R. 725, on McEwen Road, is the Montgomery County
Sheriff’s Office Washington Township substation. Deputy Tony Ball was there when he heard
over his radio that Miami Township officers were headed into Washington Township. Ball got
into his cruiser and headed north on McEwen Road. Before he got to S.R. 725, a white car that
matched the description of the vehicle being driven by the suspect passed him in the opposite
lane, traveling “faster than normal” and going into opposing lanes of travel. (Ball dep. 14-15).
Ball could not see any police vehicles in pursuit, though he saw their lights in the distance and
figured that they had gotten “held up” at an intersection. (Id. at 17). He decided to follow the
suspect to at least keep eyes on it until the Miami Township officers caught up. Ball turned on his
lights and siren, made a u-turn, and immediately turned off the lights and siren. At Spring Valley
Pike intersection, Ball again turned on his lights and siren briefly and followed the suspect west.
Ball looked back to see whether the Miami Township officers were close enough so that he could
“get out of their way,” (Id. at 22), as he was only trying to keep the suspect in sight and did not
intend to pursue. They hadn’t caught up yet. As he followed the suspect, Ball activated either his
lights or his lights and siren when he was passing vehicles or going through intersections in order
to warn motorists that he and the Miami Township officers were coming through the area.
Finally, Ball saw that the Miami Township police officers had caught up, so he began looking for
a place to pull over to allow them to pass. Fearing that if he pulled over or tried to maneuver out
of their way, they would follow him, Ball radioed the officers to pass him when he was just east
of Washington Church Road. When he pulled into the middle lane and slowed, Neer and Stites
passed him. Ball continued west on Spring Valley Pike without his lights or siren, though he
11
occasionally turned on his lights to pass a vehicle.
{¶ 19} After Neer and Stites passed Ball, they accelerated because the suspect was now
well ahead of them. They slowed as they crested a hill to see if the suspect had gone down a side
street, but Neer saw the white car ahead of them, at the S.R. 741 intersection. The suspect
slowed, or stopped, and waited for traffic to clear the intersection before going through a red light
and turning south.
{¶ 20} Sergeant Daniel Adkins of the Montgomery County Sheriff’s Office heard the
radio broadcast about the burglary while he was on patrol in Washington Township. While
driving to the scene of the burglary, Adkins heard that the suspects had left the area in an older
white car, so Adkins started driving around the general area, hoping to find it. When he heard
over the radio that Miami Township officers were in pursuit, Adkins began to follow the pursuit
from the north, thinking that they might need him to assist in clearing intersections or to wait for
the suspect to flee on foot. He worked his way over to S.R. 741, reasoning that if the suspect
went north on that road, he (Adkins) would need to help direct traffic because at that time of the
day traffic would be “horrendous.” (Adkins dep. 12). But the suspect went south, and Adkins
never saw him.
{¶ 21} When Neer reached the Spring Valley Pike and S.R. 741 intersection, he slowed,
then stopped, and made sure no traffic was coming in either direction before proceeding. Once on
S.R. 741, Neer accelerated in order to catch up to the suspect, who was well ahead of him and
cresting a hill near Waldruhe Park. Neer and Stites lost sight of the suspect until they crested the
same hill. When they caught sight of him again, they watched him move left into the opposing
lane of traffic and crash head-on into Argabrite. The crash was announced over the radio at 11:57
12
a.m. When Ball heard the announcement, he was stopped at a red light at the S.R. 741
intersection. When the light turned green, he turned on his lights and siren and responded to the
crash to assist.
{¶ 22} Argabrite contends that the pursuit was extreme or outrageous because the
officers pursued at high speeds through residential areas, because the police officers violated their
respective policies on motor vehicle pursuits, and because they knew who the suspect was and
could have arrested him with a warrant.
{¶ 23} In all, the pursuit covered just under 6 miles and lasted just under 7 minutes. The
speed limits along the route ranged from 25 m.p.h. on Graceland Street to 45 m.p.h. on S.R. 725
to 35 m.p.h. on Spring Valley Road to 55 m.p.h. on S.R. 741. Ball estimated that while on
McEwen Road he drove 45-50 m.p.h. Stites testified that on Spring Valley Road, before he
reached Washington Church Road, he was traveling at 45-50 m.p.h. Neer testified that, after he
passed Ball, he accelerated to between 60 and 80 m.p.h. because the suspect was now well ahead
of him. Stites said that on S.R. 741 he never went over 70 m.p.h. The weather during the pursuit
was clear, dry, and sunny. Neer and Stites both testified that the traffic during the pursuit was
generally light. Stites said that he was able to negotiate it without any problems. Under the
described circumstances, no reasonable juror could conclude that the officers’ speeds during the
pursuit were extreme or outrageous.
{¶ 24} The Miami Township Pursuit of Motor Vehicles Policy allows an officer to
pursue a fleeing suspect who the officer has probable cause to believe committed a burglary or
felonious assault. (Miami Township Pursuit of Motor Vehicles Policy, 41.2.8(C)). But the policy
also states that “[i]f the risk to the public from the initiation or continuation, of a pursuit
13
outweighs the risk from not initiating the pursuit or discontinuation, the pursuit shall be
terminated.” (Id.). An officer “must terminate a pursuit” when “[t]he risks to personal safety
and/or the safety of others outweigh the dangers presented if the suspect is not apprehended” or
when “[t]he identity of the offender is known and risk of escape poses less threat than risk from
attempt to capture.” (Id. at 41.2.8(C)(7)(b)(1) and (2)). An officer must also terminate a pursuit
“when the probability of harm to the officer or general public is increased by the actions of the
suspect vehicle,” which occurs when “[t]he suspect vehicle travels into oncoming traffic” or
when “[s]peeds increase to a level unsafe for conditions.” (Id. at 41.2.8(C)(8)(a)(1) and (4)).
According to the Montgomery County Sheriff’s Office pursuit policy, the only offense for which
a deputy may pursue a suspect is a “felony involving the infliction or threatened infliction of
serious physical harm.” (General Orders Manual, 5.1.4(A)(2) (5th Ed.)).
{¶ 25} Even if it is assumed for the sake of analysis that the officers did violate their
respective pursuit policies, their conduct was not extreme or outrageous. The most that can be
said of a violation of a “departmental policy enacted for the safety of the public” is that it “may
be relevant to determining the culpability of a course of conduct.” Anderson, 134 Ohio St. 3d 380,
2012-Ohio-5711, 983 N.E.2d 266, at ¶ 37; see also Shalkhauser, 148 Ohio App. 3d at 51, 772
N.E.2d 129 (saying, “a violation of an internal departmental procedure is irrelevant to the issue of
whether appellees’ conduct constituted willful or wanton misconduct”). “ ‘Without evidence of
an accompanying knowledge that the violations “will in all probability result in injury,” Fabrey
[v. McDonald Village Police Dept.], 70 Ohio St.3d [351] at 356, 639 N.E.2d 31 [ (1994) ]
evidence that policies have been violated demonstrates negligence at best.’ ” Anderson at ¶ 38,
quoting O’Toole v. Denihan, 118 Ohio St. 3d 374, 2008-Ohio-2574, 889 N.E.2d 505, ¶ 92. Here,
14
even if there is a factual question as to whether either Neer or Stites violated their pursuit policy,
there is no evidence to conclude that either knew that the violation would probably cause
someone injury. Neer testified that he knew that under the pursuit policy he could pursue a
fleeing suspect who had committed a burglary or felonious assault. DiPietro testified that he did
not believe that any of the information that he received from his officers during the pursuit
warranted terminating the pursuit. Although DiPietro never asked for the speeds of the vehicles,
we note that, in all, he was in control of the pursuit for only about 3 minutes. With regard to Ball
and Adkins not only is there is no evidence that either of them knew of any violation of their
pursuit policy, but if there was a violation, there is no evidence that either knew that the violation
would probably cause someone injury and, regardless of the standard applied, their actions were
not the proximate cause of the eventual crash. Each of Argabrite’s experts states in his affidavit
that the defendants intentionally disregarded their respective pursuit policies. (See McDevitt Aff.
¶ 5; Ashton Aff. ¶ 6). This evidence, though, “does not create any issues of fact, but merely
states appellant’s position with respect to appellees’ culpability, which is a legal conclusion.”
(Citation omitted.) (Emphasis sic.) Shalkhauser at 51.
{¶ 26} Neer and DiPietro each testified that he did not know who the suspect was until
after the crash. But Stites knew early on. Three months earlier, the same white car had failed to
stop for another officer, and Stites and that officer discovered that the car was registered to
Andrew Barnhart’s mother. One could speculate whether the officers should have discontinued
the pursuit, and at what point that decision should be made. But that’s not the right question here.
The question is, was the pursuit extreme or outrageous? We do not think that a reasonable person
could fairly say that it was.
15
{¶ 27} None of the officers’ conduct may fairly be characterized as “atrocious, and
utterly intolerable in a civilized society.” Certainly, nothing about Ball’s or Adkins’ conduct
comes close. While one of Argabrite’s experts states in his affidavit that Neer’s, Stites’s,
DiPietro’s, and Ball’s conduct was outrageous and unconscionable, (see McDevitt Aff. ¶ 5), such
evidence, as we said above, states a legal conclusion, not a factual assertion. The trial court
disagreed and so do we.
{¶ 28} Lastly, we need not address whether the officers are immune under the Political
Subdivision Tort Liability Act. As we said in Whitfield, “since there must always be a causal
connection between disputed conduct and an injury, a plaintiff would have to satisfy
proximate-cause requirements even if an officer’s conduct is wanton or reckless.” Whitfield, 167
Ohio App. 3d 172, 2006-Ohio-2917, 854 N.E.2d 532, at ¶ 44. That issue is dispositive.
{¶ 29} The sole assignment of error is overruled.
{¶ 30} The trial court’s judgment is affirmed.
.............
WELBAUM, J., concurs.
FROELICH, P.J., dissenting.
{¶ 31} I dissent from the majority’s conclusion that Whitfield v. Dayton, 167 Ohio
App.3d 172, 2006-Ohio-2917, 854 N.E.2d 532 (2d Dist.), should continue to be followed.
{¶ 32} A claim for personal injuries requires the existence of a duty, the defendant’s
breach of that duty, and injury or damages that are proximately caused by that breach. Wallace
v. Ohio Dept. of Commerce, 96 Ohio St. 3d 266, 2002-Ohio-4210, 773 N.E.2d 1018, ¶ 22.
Without proximate cause, there can be no liability.
16
{¶ 33} Proximate cause is the law’s distinction between the injury’s cause in fact and
causation for which society holds an actor responsible. 2 The Supreme Court of Ohio has
discussed proximate cause, stating:
The term, “proximate cause,” is often difficult of exact definition as applied to the
facts of a particular case. However, it is generally true that, where an original act
is wrongful or negligent and in a natural and continuous sequence produces a
result which would not have taken place without the act, proximate cause is
established, and the fact that some other act unites with the original act to cause
injury does not relieve the initial offender from liability.
Clinger v. Duncan, 166 Ohio St. 216, 222, 141 N.E.2d 156 (1957). An injury is the natural and
probable consequence of an act if the injury complained of “could have been foreseen or
reasonably anticipated” from the conduct. Strother v. Hutchinson, 67 Ohio St. 2d 282, 287, 423
N.E.2d 467 (1981).
{¶ 34} According to Lewis v. Bland, 75 Ohio App. 3d 454, 599 N.E.2d 814 (9th
Dist.1991), and the cases that follow it, police officers must engage in “extreme or outrageous
conduct” before there can be proximate cause. Id. at 456. This approach is contrary to
traditional notions of proximate cause, which focus on the foreseeability of the consequence, not
2
Everything causes everything. As we stated in Didier v. Johns, 114 Ohio App. 3d 746, 684 N.E.2d 337
(2d Dist.1996):
In our universe, all events can be analyzed as caused by all other events. It is a weary
truism now, thanks to the explorations of chaos theory, that “but for” the flapping of a butterfly’s
wings in Mexico, Dorothy would never have been blown to Oz.
On the scale of human (not just physical) events, historical interactions have been
thoroughly revealed and explored. In short, the “but for” analysis casts a net so wide that
conceivably all events are traceable to all other events, and the touchstone of individual
responsibility sinks beneath a sea billowing with enumerable occurrences all jostling each other.
(Footnotes omitted.) Id. at 753 (Young, J.).
17
on the wrongfulness of the conduct that produces the result.
{¶ 35} Ohio’s sovereign immunity statute sets forth standards imposing liability of
governmental entities and their employees for wrongful conduct. R.C. 2744.03(A)(6) grants
employees of political subdivisions immunity from liability, unless any of three exceptions to that
immunity applies. Anderson v. Massillon, 134 Ohio St. 3d 380, 2012-Ohio-5711, 983 N.E.2d
266, ¶ 21. Those exceptions are (1) the employee’s acts or omissions were manifestly outside
the scope of the employee's employment or official responsibilities; (2) the employee’s acts or
omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner; and (3)
civil liability is expressly imposed upon the employee by a section of the Revised Code. R.C.
2744.03(A)(6)(a)-(c). Thus, of relevance here, police officers involved in police chases have a
duty not to proximately cause injury by acting maliciously, in bad faith, or in a wanton or reckless
manner. R.C. 2744.03(A)(6)(b). They are immune from suit, unless their actions were
performed “with malicious purpose, in bad faith, or in a wanton or reckless manner.” Id.
{¶ 36} As we stated in Moon v. Trotwood Madison City Schs., 2014-Ohio-1110, 9
N.E.2d 541 (2d Dist.):
The terms “wanton” and “reckless” describe different and distinct degrees
of care and are not interchangeable. Anderson v. Massillon, 134 Ohio St. 3d 380,
2012-Ohio-5711, 983 N.E.2d 266, paragraph one of the syllabus. They are
sometimes described “as being on a continuum, i.e., willful conduct is more
culpable than wanton, and wanton conduct is more culpable than reckless.” Id. at
¶ 42 (Lanzinger, J., concurring in judgment in part and dissenting in part).
Recklessness is a high standard. Rankin v. Cuyahoga Cty. Dept. of
18
Children and Family Servs., 118 Ohio St. 3d 392, 2008-Ohio-2567, 889 N.E.2d
521, ¶ 37. “Reckless conduct is characterized by the conscious disregard of or
indifference to a known or obvious risk of harm to another that is unreasonable
under the circumstances and is substantially greater than negligent conduct.”
Anderson at ¶ 34, adopting 2 Restatement of the Law 2d, Torts, Section 500
(1965).
Moon at ¶ 20-21.
{¶ 37} By requiring extreme and outrageous conduct to establish proximate cause
(which is required for liability), Lewis usurps the legislative determination as to the type of
conduct that is required of employees of political subdivisions for immunity from liability.
Under Lewis, even if a police officer is reckless, the officer would still be immune from liability
unless the conduct is extreme or outrageous. The argument that Lewis involves “proximate
cause” as opposed to “duty” could devolve into a historical or pedagogical discussion of duty
versus proximate cause. See, e.g., Palsgraf v. Long Island R.Co., 248 N.Y. 339, 162 N.E. 99
(1928). Suffice it to say, the bottom-line concerning potential responsibility is the same. It
may or may not be good public policy to require “extreme or outrageous” conduct to remove
immunity and impose liability upon police officers who pursue a fleeing suspect, but that
question has been decided by the legislature when it only required “reckless” conduct.
{¶ 38} If the legislature desired a different standard for immunity when police officers
are pursuing fleeing suspects in their vehicles, the legislature could have expressly created such
an exception. The legislature has created an exception to political subdivision liability for
negligent operation of a motor vehicle when a police officer “was operating a motor vehicle
19
while responding to an emergency call and the operation of the vehicle did not constitute willful
or wanton misconduct.” R.C. 2744.02(B)(1)(a). No specific immunity provision exists for
police officers regarding their pursuit of a fleeing suspect other than that found in R.C.
2744.03(A)(6)(b).
{¶ 39} I concede that stare decisis weighs in favor of following Whitfield, which
followed Lewis. However, Anderson has since clarified certain definitions regarding the degrees
of care for purposes of the sovereign immunity statute. Moreover, I believe that Whitfield was
wrongly decided at the time, the decision defies practical workability, and abandoning the
precedent would not cause undue hardship for those who have relied on it. See Westfield Ins.
Co. v. Galatis, 100 Ohio St. 3d 215, 2003-Ohio-5849, 797 N.E.2d 1256, ¶ 48 (adopting a standard
to determine when courts may vary from established precedent).
.............
Copies mailed to:
Kenneth J. Ignozzi
Liza J. Luebke
John Cumming
Lawrence E. Barbiere
Edward J. Dowd
Joshua R. Schierloh
Hon. James A. Brogan
(sitting for Judge Barbara P. Gorman)