Marchant v. Gouge

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[Cite as Marchant v. Gouge, 2010-Ohio-2273.] COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT GAY MARCHANT, INDIVIDUALLY AND AS ADMINISTRATRIX OF THE ESTATE OF ADAM MARCHANT Plaintiff-Appellant -vsDEPUTY MICHAEL GOUGE, ET AL : : : : : : : : : JUDGES: Hon. W. Scott Gwin, P.J. Hon. John W. Wise, J. Hon. Patricia A. Delaney, J. Case No. 2009-CA-0143 OPINION Defendant-Appellee CHARACTER OF PROCEEDING: Civil appeal from the Richland County Court of Common Pleas, Case No. 2008-CV-383 JUDGMENT: Affirmed DATE OF JUDGMENT ENTRY: May 19, 2010 APPEARANCES: For Plaintiff-Appellant For Defendant-Appellee SAMUEL S. RIOTTE DAVID B. MALIK DENNIS J. NIERMANN 8437 Mayfield Drive Chesterland, OH 40026 DANIEL T. DOWNEY JENNIFER GEORGE 250 East Broad Street Columbus, OH 43215 [Cite as Marchant v. Gouge, 2010-Ohio-2273.] Gwin, P.J. {¶1} Gay Marchant, individually and as the Administratrix of the Estate of Adam Marchant, deceased, appeals a summary judgment of the Court of Common Pleas of Richland County, Ohio, entered in favor of defendants-appellees Richland County and Michael Gouge, which dismissed her complaint for wrongful death. Appellant assigns three errors to the trial court: {¶2} I. THE TRIAL COURT ERRED WHEN IT GRANTED SUMMARY JUDGMENT TO MOVING PARTIES RICHLAND COUNTY AND RICHLAND COUNTY SHERIFF S DEPUTY MICHAEL GOUGE BECAUSE DISPUTED ISSUES OF MATERIAL FACT EXIST REGARDING WHETHER DEPUTY GOUGE WAS ON AN EMERGENCY CALL AND WHETHER HE OPERATED HIS CRUISER IN A WILLFUL, WANTON, OR RECKLESS MANNER SUCH THAT RICHLAND COUNTY AND DEPUTY GOUGE ARE NOT ENTITLED TO JUDGMENT AS A MATTER OF LAW. {¶3} THE TRIAL COURT ERRED WHEN IT GRANTED SUMMARY JUDGMENT TO RICHLAND COUNTY AS A MATTER OF LAW BECAUSE IT APPLIED INCORRECT LAW REGARDING WHAT CONSTITUTES AN EMERGENCY CALL UNDER R.C. 2744. {¶4} THE TRIAL COURT ERRED WHEN IT GRANTED SUMMARY JUDGMENT TO RICHLAND COUNTY AND DEPUTY GOUGE AS A MATTER OF LAW BECAUSE IT APPLIED INCORRECT LAW REGARDING WHAT CONSTITUTES WILLFUL, WANTON, AND RECKLESS CONDUCT UNDER R.C. 2744. {¶5} The trial court s eight page decision and judgment entry sets out the facts it found to be material. On July 14, 2007, Richland County Sheriff s Deputy Michael Richland County, Case No. 2009-CA-0143 3 Gouge was driving to what had been dispatched as an assault in progress at the Twin Lakes Golf Course. Gouge s police cruiser had its lights and sirens activated as it traveled down Lexington Avenue. Decedent Adam Marchant crossed Lexington Avenue in front of the police cruiser, was struck by the vehicle, and shortly thereafter, died. Appellant is the mother and administratrix of the decedent s estate. The trial court found both the county and Deputy Gouge were entitled to political subdivision immunity pursuant to R.C. Chapter 2744. {¶6} It appears Lexington Avenue in the area where the accident occurred is four lanes. It runs north-south and is flat and straight. The accident occurred at night but the area was well lit. There was little traffic. {¶7} Just before the accident, Adam Marchant was on the west side of Lexington, at the Circle K grocery store, in line at a carry out window waiting to purchase beer. When his turn came the cashier took a long time and he left without his purchase and crossed Lexington. One of the other patrons called him back when the cashier returned with his purchase. Adam Marchant stepped back into the roadway and was struck by Gouge s cruiser. Marchant attempted to dodge the cruiser, but unfortunately Gouge swerved in the same direction and was unable to avoid striking him. Some of the eyewitnesses testified Marchant appeared to be under the influence, and later tests confirmed he had alcohol, THC, and a trace of cocaine in his blood. {¶8} The trial court accurately found a claim of political subdivision immunity requires a three-tiered analysis. Judgment Entry at Pg. 2, citing Cater v. Cleveland (1998), 83 Ohio St. 3d 24, 697 N.E. 2d 610. R.C. 2744.02 (A)(1) sets forth a general rule that a political subdivision is not liable for damages in a civil action for injury, theft, Richland County, Case No. 2009-CA-0143 4 or loss to person or property allegedly caused by an act or omission of the political subdivision or an employee of the political subdivision in connection with the governmental or proprietary function. R.C. 2744.02 (B)(1) through (5) sets out exceptions to this general rule. Even if one of the exceptions might apply, there are still affirmative defenses available to the political subdivision. R.C. 2744.03 (A), Colbert v. Cleveland (2003), 99 Ohio St. 3d 215, 790 N.E. 2nd 781. {¶9} Section (B) of R.C. 2744.02 enumerates the five exceptions to the general grant of immunity. Of the five exceptions, only (B)(1) is applicable in the instant case. Pursuant to R.C. 2744.02(B)(1), although a political subdivision generally enjoys immunity from civil tort liability, it is nonetheless held liable for its employees' negligent operation of a motor vehicle, with certain exceptions. R.C. 2744.02(B) provides: {¶10} Subject to sections 2744.03 and 2744.05 of the Revised Code, a political subdivision is liable in damages in a civil action for injury, death, or loss to person *663 or property allegedly caused by an act or omission of the political subdivision or of any of its employees in connection with a governmental or proprietary function, as follows: {¶11} (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 when the employees are engaged within the scope of their employment and authority. {¶12} R.C. 2744.02(1) goes on to enumerate three full defenses to liability for the negligent operation of a motor vehicle. Of the three defenses, only section (a) is applicable in the instant case. R.C. 2744.02(B)(1)(a) states: Richland County, Case No. 2009-CA-0143 5 {¶13} 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. {¶14} Civ. R. 56 states in pertinent part: {¶15} Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action, show 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. No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from the evidence or stipulation, and only from the evidence or stipulation, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence or stipulation construed most strongly in the party's favor. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages. {¶16} A trial court should not enter a summary judgment if it appears a material fact is genuinely disputed, nor if, construing the allegations most favorably towards the nonmoving party, reasonable minds could draw different conclusions from the undisputed facts, Houndshell v. American States Insurance Company (1981), 67 Ohio St. 2d 427. The court may not resolve ambiguities in the evidence presented, Inland Refuse Transfer Company v. Browning-Ferris Industries of Ohio, Inc. (1984), 15 Ohio St. 3d Richland County, Case No. 2009-CA-0143 321. 6 A fact is material if it affects the outcome of the case under the applicable substantive law, Russell v. Interim Personnel, Inc. (1999), 135 Ohio App. 3d 301. {¶17} When reviewing a trial court s decision to grant summary judgment, an appellate court applies the same standard used by the trial court, Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St. 3d 35. This means we review the matter de novo, Doe v. Shaffer, 90 Ohio St.3d 388, 2000-Ohio-186. {¶18} The party moving for summary judgment bears the initial burden of informing the trial court of the basis of the motion and identifying the portions of the record which demonstrate the absence of a genuine issue of fact on a material element of the nonmoving party s claim, Drescher v. Burt (1996), 75 Ohio St. 3d 280. Once the moving party meets its initial burden, the burden shifts to the non-moving party to set forth specific facts demonstrating a genuine issue of material fact does exist, Id. The nonmoving party may not rest upon the allegations and denials in the pleadings, but instead must submit some evidentiary material showing a genuine dispute over material facts, Henkle v. Henkle (1991), 75 Ohio App. 3d 732. {¶19} Pursuant to Loc. App. R. 9 (B), appellant argues the court should not have granted summary judgment because the case presents disputed issues of material fact, and in addition, the court disregarded certain material facts. Appellant also alleges the court applied Ohio law incorrectly regarding what constitutes an emergency call and what constitutes willful, wanton, and reckless conduct. I, II& III. {¶20} In her first assignment of error, appellant argues the trial court was incorrect in finding there were no issues of material fact with regard to what constitutes an Richland County, Case No. 2009-CA-0143 7 emergency call, and what constitutes willful and wanton behavior. In her second assignment of error she argues the court misapplied the law regarding emergency calls, and in her third assignment of error, she asserts the court erred in applying the law regarding willful and wanton conduct. A discussion the law is necessary to determine what facts are material here, so we will combine our analysis of each for purposes of clarity. We will address the issues of the emergency call first. {¶21} Appellant lists four issues of material fact regarding whether Deputy Gouge was on an emergency call at the time of the collision: (1) Was Deputy Gouge dispatched to Twin Lakes? (2) Did Deputy Gouge drive to Twin Lakes Golf Course while operating his sirens? (3) Was Deputy Gouge professionally obligated to drive to the Twin Lakes Golf Course? and (4) Was Deputy Gouge aware of all the facts of the call to which he was responding? {¶22} The trial court found three facts conclusive on the issue of whether Deputy Gouge was on an emergency run. The court found he was on active duty, driving to Twin Lakes Golf Course in response to a dispatch, with his lights and siren activated. Appellant urges those facts insufficient to permit the court to conclude Gouge was on an emergency run. At least one other officer heard the call, but did not respond to the dispatcher about the Twin Lakes Golf Course, and Gouge was not among the officers specifically dispatched to the scene. {¶23} It is undisputed there was a fight at the Twin Lakes Golf Course during a late night golf event. The victim of the assault, Perry Wheeler, testified in his deposition a foursome of golfers ahead of him on the course surrounded him, and assaulted him, including jumping on him, choking him, and striking him with a golf club. It is unclear Richland County, Case No. 2009-CA-0143 8 from the record how much of this information the dispatcher communicated over the radio. The county is divided into geographical patrol zones. The zone containing Twin Lakes Golf Course was assigned to two other deputies, but any officer can respond to a call. Michael Brandt, one of the 911 dispatchers, testified in his deposition protocol was to send two deputies. {¶24} Deputy Gouge was in the process of responding to another call when he heard the dispatch about the assault at Twin Lakes Golf Course. He decided to respond to the call. {¶25} In Colbert v. City of Cleveland, supra, the Ohio Supreme Court construed the Revised Code definition of the term emergency call . R.C. 2744.02 (B)(1)(a) provides: Emergency call means a call to duty, including, but not limited to, communications from citizens, police dispatches, and personal observations by police officers of inherently dangerous situations that demand an immediate response on the part of a police officer. {¶26} The Supreme Court explained in the context of an emergency call, a call to duty is defined as an obligatory task, conduct, service, or function enjoined by order or usage according to rank, occupation, or profession. Colbert at paragraph 13, citing Webster s 3rd New International Dictionary (1986), 705. The Supreme Court concluded a call to duty was a situation in which a response by a police officer is required by the officer s professional obligation. The Supreme Court rejected an argument an emergency call must be limited only to inherently dangerous situations. The Supreme Court found the clear and plain language of the statute does not include such limiting language, and courts may not add it by judicial fiat. Id. at paragraph 15. Richland County, Case No. 2009-CA-0143 9 {¶27} Appellant also argues reasonable minds could differ as to whether the siren was on at the time of the accident. Captain Larry Faith of Richland County Sheriff s Department investigated the accident, and reported he could not hear Deputy Gouge s siren on the two recorded radio broadcasts Deputy Gouge made to Deputy Sweat as he was en route prior to the accident, although Faith could hear Deputy Sweat s siren on the recording. The record contains depositions of five persons who witnessed the accident. Each testified they heard the sirens and saw the cruiser lights prior to the accident. {¶28} We find the trial court was correct in determining reasonable minds could not differ as to whether Deputy Gouge s cruiser had both the lights and sirens activated. Although Captain Faith could not hear the siren on the recorded radio broadcast, all the eyewitnesses at the scene testified prior to the collision the lights and siren were activated and they knew a police cruiser was coming. {¶29} We conclude the trial court was correct in finding the facts material to the question of whether this was an emergency call were undisputed. The statute does not restrict emergency calls to officers who are specifically dispatched to a situation. The language of the statute indicates officers may rely on their personal observation and judgment to determine whether their response is proper. Pursuant to the Revised Code and the Supreme Court s decision in Colbert, the trial court correctly listed the three determinate facts, and any other potential factual disputes listed by appellant are not material to a determination of whether Deputy Gouge was on an emergency call at the time of the accident. Richland County, Case No. 2009-CA-0143 10 {¶30} We turn to the issue of what constitutes willful, wanton, and reckless conduct under R.C. 2744. Appellant asserts the trial court simply stated Deputy Gouge exercised care to pedestrians on Lexington Avenue, and Adam Marchant randomly appeared in the roadway. The court found it was undisputed that Deputy Gouge applied his brakes and attempted to steer his cruiser to avoid Marchant, who twice placed himself in the cruiser s path. {¶31} Wanton misconduct has been defined as the failure to exercise any care toward one to whom a duty of care is owed when the failure occurs under circumstances for which the probability of harm is great and when the probability of harm is known to the tortfeasor. Brockman v. Bell (1992), 78 Ohio App.3d 508, 515, 605 N.E.2d 445. {¶32} Wanton misconduct goes beyond mere negligence and requires the evidence [to establish] a disposition to perversity on the part of the tortfeasor such that the actor must be conscious that his conduct will in all probability result in injury. Fabrey v. McDonald Village Dept., 70 Ohio St.3d 351, 356, 1994-Ohio-368, 639 N.E.2d 31 . The wanton or reckless misconduct standard set forth in R.C. 2744.03(A)(6) and willful or wanton misconduct standard set forth in R.C. 2744.02(B)(1)(a) are functionally equivalent. Whitfield v. City of Dayton, 167 Ohio App.3d 172, 854 N.E.2d 532, 2006-Ohio-2917, at paragraph 34. {¶33} [W]illful misconduct involves a more positive mental state prompting the injurious act than wanton misconduct, but the intention relates to the misconduct, not the result. Id, paragraph 29. The Whitfield court defined willful misconduct as an intentional deviation from a clear duty or from a definite rule of conduct, a deliberate Richland County, Case No. 2009-CA-0143 11 purpose not to discharge some duty necessary to safety, or purposely doing some wrongful acts with knowledge or appreciation of the likelihood of resulting injury. Id. at paragraph 30, quoting Tighe v. Diamond (1948), 149 Ohio St. 520, 527, 80 N.E.2d 122. In Gladon v. Greater Cleveland Regional Transit Authority (1996), 75 Ohio St.3d 312, 319, 1996-Ohio-137, 662 N.E.2d 287, the Supreme Court defined the term willful misconduct as the intent, purpose, or design to injure . Appellant does not argue Deputy Gouge acted willfully or intended to injure Marchant. {¶34} The Supreme Court of Ohio has adopted the definition of reckless misconduct set forth in Restatement (Second) of Torts (1965) 587, Section 500, which states an actor's conduct is reckless if the following occurs: [R]eckless disregard of the safety of others if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent. Brockman, supra, at 516. {¶35} In Marchetti v. Kalish (1990), 53 Ohio St.3d 95, 100, 559 N.E.2d 699, the Supreme Court of Ohio again quoted the Restatement contrasting negligence and recklessness: {¶36} g. Negligence and recklessness contrasted. Reckless misconduct differs from negligence in several important particulars. It differs from that form of negligence which consists in mere inadvertence, incompetence, unskillfulness, or a failure to take precautions to enable the actor adequately to cope with a possible or probable future emergency, in that reckless misconduct requires a conscious choice of a course of Richland County, Case No. 2009-CA-0143 12 action, either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man. It differs not only from the above-mentioned form of negligence, but also from that negligence which consists in intentionally doing an act with knowledge that it contains a risk of harm to others, in that the actor to be reckless must recognize that his conduct involves a risk substantially greater in amount than that which is necessary to make his conduct negligent. The difference between reckless misconduct and conduct involving only such a quantum of risk as is necessary to make it negligent is a difference in the degree of the risk, but this difference of degree is so marked as to amount substantially to a difference in kind. {¶37} In O Toole v. Denihan, 118 Ohio St. 3d 374, 2008 -Ohio- 2574, 889 N.E.2d 505, the Supreme Court noted in the context of R.C. 2744.03(A)(6)(b), recklessness is a perverse disregard of a known risk. O Toole at paragraph 73, citations deleted. The Supreme Court reminded us not to use 20-20 hindsight in viewing a situation, and not to color our decision with a consideration of any tragic results. Id at paragraph 76. Our analysis must center upon the information and circumstances the actor had before him at the time he chose to act. {¶38} The O Toole court held even violations of agency policy do not rise to the level of reckless unless the circumstances demonstrate a perverse disregard for the risks involved. Id at paragraph 92. {¶39} Appellant lists the following as material facts in genuine dispute regarding whether Deputy Gouge operated his cruiser in a willful, wanton, or reckless manner: (1) Did Deputy Gouge operate his cruiser with lights and sirens operating? (2) Which lane Richland County, Case No. 2009-CA-0143 13 was Deputy Gouge driving in when he struck and killed Adam Marchant? (3) What, if anything, prevented Deputy Gouge from seeing Adam Marchant cross three complete lanes of traffic? (4) Did Deputy Gouge scan the roadway before accelerating down it at 67 miles per hour in a 35 mile per hour zone before he struck Adam Marchant at 64 miles per hour? (5) Was Adam Marchant already in the road when Deputy Gouge turned onto Lexington Road such that Deputy Gouge would have seen him had he scanned the road? (6) Did Deputy Gouge ever see Adam Marchant prior to hitting him? (7) Did Deputy Gouge brake his vehicle prior to hitting Adam Marchant? (8) Did Deputy Gouge take his foot off the gas pedal before he struck Adam Marchant? (9) Did Deputy Gouge attempt to steer to avoid Adam Marchant? (10) Were the tires on Deputy Gouge s vehicle 1/32 of an inch away from being legally bald on July 14, 2007? (11) Did Deputy Gouge have alcohol in his system when he struck Adam Marchant? (12) Was the tire pressure in Deputy Gouge s cruiser so low as to make operating the vehicle difficult? {¶40} Deputy Gouge testified he did scan the roadway and did not see Marchant until he re-entered the roadway seconds before the accident. The trial court correctly found appellant presents no evidence to the contrary. {¶41} Appellant argues reasonable minds could find the deputy was going too fast for conditions and did not slow appreciably before he struck Marchant. {¶42} One of the eyewitnesses, Benjamin Rachel, deposed he was traveling on Lexington Street in the opposite direction from the police cruiser at the time of the accident. He testified he saw the cruiser swerve slightly, consistent with Deputy Gouge s statement. The other witnesses either did not observe the vehicle swerve or Richland County, Case No. 2009-CA-0143 14 only saw the cruiser seconds before Marchant was struck. From their testimony, it appears only Rachel had a vantage point from which he could observe a slight swerve. {¶43} The record indicates Deputy Gouge submitted to a breathalyzer test, which register .001 percent. Lieutenant Michael Higgins of the Mansfield City Police Department deposed .001 is not significant, and a person who has not been drinking at all could register that reading. {¶44} In Hewitt v. the City of Columbus, Franklin App. No 08AP-1087, 2009-Ohio4486, Officer Baughman was responding to an emergency call and was traveling with the right-of-way with his headlights illuminated on an unobstructed, illuminated roadway with sparse traffic. The officer was going approximately 67 mph in a 45 mph zone without his lights or siren. When a car turned left across his lane of travel, Officer Baughman decided to accelerate and swerve because he believed he could not avoid a collision by braking. {¶45} The Hewitt court found no genuine issue of fact as to whether the officer s conduct rose to the level of recklessness where his actions were consistent with his training as a police officer. The court of appeals noted that under the circumstances of the case, the motorist was not deprived of his opportunity to yield the right of way despite the officer s speed. Hewitt at paragraph 29. The court concluded [t]he evidence here simply does not demonstrate that Officer Baughman knew or had reason to know that his actions created an unreasonable risk of physical harm substantially greater than that necessary to make his conduct negligent. Hewitt at paragraph 33. {¶46} In the case at bar, the trial court correctly analyzed the totality of the circumstances and found, as in Hewitt, the solitary fact of Gouge s speed is not Richland County, Case No. 2009-CA-0143 15 sufficient to establish an issue of whether his conduct rose to the level of recklessness. The court found the evening was clear, the cruiser s lights and sirens were activated. Gouge scanned the roadway for vehicles and pedestrians, and took evasive action when Marchant appeared in his path. {¶47} We agree with the trial court the undisputed facts indicate that given the emergency situation, Deputy Gouge was operating his vehicle with the appropriate level of regard for pedestrian traffic. The depositions of the eyewitnesses make it clear Marchant ran into the path of the vehicle only seconds before he was struck. {¶48} We conclude the trial court did not err in determining the facts material to the case are not in genuine dispute, and we find the court properly applied the correct law to the facts. For this reason, summary judgment was appropriate. {¶49} Each of the assignments of error is overruled. {¶50} For the foregoing reasons, the judgment of the Court of Common Pleas of Richland County, Ohio, is affirmed. By Gwin, P.J., Wise, J., and Delaney, J., concur _________________________________ HON. W. SCOTT GWIN _________________________________ HON. JOHN W. WISE _________________________________ HON. PATRICIA A. DELANEY WSG:clw 0423 [Cite as Marchant v. Gouge, 2010-Ohio-2273.] IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT GAY MARCHANT, INDIVIDUALLY AND AS ADMINISTRATRIX OF THE ESTATE OF ADAM MARCHANT Plaintiff-Appellant -vsDEPUTY MICHAEL GOUGE, ET AL Defendant-Appellee : : : : : : : : : : : : : JUDGMENT ENTRY CASE NO. 2009-CA-0143 For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Court of Common Pleas of Richland County, Ohio, is affirmed. Costs to appellant. _________________________________ HON. W. SCOTT GWIN _________________________________ HON. JOHN W. WISE _________________________________ HON. PATRICIA A. DELANEY

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