[Cite as Hill v. Kiernan, 2025-Ohio-5518.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
BRYAN K. HILL, :
Plaintiff-Appellee, : No. 114964 v. :
SEAN KIERNAN, ET AL., :
Defendants-Appellants. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED AND REMANDED RELEASED AND JOURNALIZED: December 11, 2025
Civil Appeal from the Cuyahoga County Common Pleas Court Case No. CV-23-990002
Appearances:
Tsilimos, Dolesh, and Pena, LLC, Emily Jean Stolfer, and Joshua Dolesh, for appellee Bryan K. Hill.
Brian P. Scherf, for appellees Lanesha Henderson and Minors.
Mark D. Griffin, City of Cleveland Director of Law, and Dylan Ford and Affan Ali, Assistant Directors of Law, for appellants.
MICHELLE J. SHEEHAN, P.J.:
{¶ 1} This appeal asks us to determine whether defendants-appellants City
of Cleveland (“Cleveland”) and Sean Kiernan (“Kiernan”) are entitled to immunity from civil liability under R.C. Ch. 2744 as a matter of law for Kiernan’s actions in
connection with a motor vehicle accident involving plaintiff-appellee Bryan Hill
(“Hill”) and cross-claim plaintiff-appellee Lanesha Henderson (“Henderson”). As
genuine issues of material fact exist regarding the cause of the accident and whether
Kiernan’s actions rise to the level of willful, wanton, or reckless conduct, we affirm
the trial court’s judgment denying summary judgment to Cleveland and Kiernan in
this matter and remand the case for further proceedings.
I. Procedural and Substantive Facts
{¶ 2} Kiernan is a police officer employed by Cleveland. He graduated from
the police academy in January 2019 and had worked for Cleveland as a patrol officer
since that time. Kiernan worked third shift (typically overnight from 9:00 p.m. to
6:00 a.m.). He testified during his deposition that he had no fatigue issues working
this shift. Kiernan further testified that he took sleep hygiene seriously. For
example, he had blackout curtains in his room, kept a door stop under the door so
he was not interrupted while sleeping during the day, and maintained a set regimen
of wake and sleep hours.
{¶ 3} On September 15-16, 2022, Kiernan was on duty beginning his shift
at 8:00 p.m. that evening. At approximately 11:15 p.m. on the 15th, Kiernan was
dispatched to pick up a rape kit from Marymount Hospital. The rape kit included
two items of evidence that needed to be delivered as soon as possible to separate
locations. First, biological specimens had to be delivered to the county medical
examiner’s office so they could be refrigerated for preservation. Second, the victim’s clothing had to be delivered to the Fourth District police station for use by the
assigned detective. Kiernan testified that timely delivery of the rape kit to both the
county medical examiner’s office and the police station was essential to the
investigation and prioritized by him and Cleveland. In fact, Kiernan was not
permitted to accept any additional assignments until delivery of the rape kit was
complete.
{¶ 4} Kiernan delivered the biological samples to the county medical
examiner’s office at approximately 12:45 a.m. He immediately proceeded to deliver
the victim’s clothing to the Fourth District police station located at 9333 Kinsman
Road. While he characterized delivering the rape kit as soon as possible as an
emergency, Kiernan did not activate his lights or sirens because this type of delivery
was not a “life or death” emergency and he did not need to “get everyone out of his
way.”
{¶ 5} Kiernan’s route to the station took him southbound on E. 116th Street.
As he proceeded southbound on E. 116th Street, Kiernan approached two
intersections. The traffic light was red as he approached the first intersection of
E. 116th Street and Larchmere Boulevard. He did not activate his lights or sirens.
Kiernan slowed to a stop, checked for traffic, and continued through the intersection
slowly accelerating even though the light was still red.
{¶ 6} Seconds later, Kiernan approached the intersection of E. 116th Street
and Shaker Boulevard. The traffic light was red. He did not slow down or stop, but rather, Kiernan proceeded immediately through the intersection without his lights
or sirens activated
{¶ 7} Kiernan’s vehicle was struck by Henderson’s vehicle in the
intersection, which was traveling on Shaker Boulevard and lawfully proceeding
through the intersection. Their collision caused both vehicles to collide with Hill’s
vehicle, which was stopped at the red light heading northbound E. 116th Street.
Kiernan’s body-cam video showed that his hands never left the steering wheel
during the accident and he was able to immediately activate his body-cam following
the accident.1
{¶ 8} After the accident, Kiernan was interviewed by Sergeant Edgerton at
the hospital. He told Sergeant Edgerton that he did not remember the accident.2
Kiernan further stated that the last thing he remembered was stopping at the
intersection of E. 116th Street and Larchmere Boulevard. He also stated that he
believed that “the light had turned green because he would not have continued
through the intersection” otherwise. Kiernan suffered a concussion and was unable
to return to work for more than three weeks.
{¶ 9} In December 2023, Hill filed this action against Kiernan, Cleveland,
and Henderson. At the time of the accident, Henderson was in the process of
1 Kiernan’s body-cam video was activated during the accident. The accident is recorded and part of the record in this matter because it was authenticated as part of Kiernan’s deposition testimony.
2 Sergeant Edgerton’s body cam was activated as he interviewed Kiernan at the hospital
and was authenticated as part of Kiernan’s deposition testimony. making a “DoorDash” delivery as well as driving a vehicle that did not belong to her.
Thus, Hill also filed claims against DoorDash, Inc. and Rosalind Knox, the owner of
the vehicle that Henderson was driving. In turn, Henderson filed a cross-claim
against Kiernan and Cleveland on behalf of herself and her two minor children who
were also in the vehicle. Subsequently, Hill dismissed his claims against Henderson,
DoorDash, Inc., and Knox.
{¶ 10} During his deposition, Kiernan testified that he did not remember the
accident. He stated that the last thing he remembered from that night is traveling
through the first intersection at E. 116th Street and Larchmere Boulevard. Kiernan
also testified, “I don’t know . . . if I fell asleep” or “just lost attention for a second and
I went through the light.” He did not know if he fell asleep or why he would have
fallen asleep.
{¶ 11} Also, during his deposition, Kiernan acknowledged that police
officers are required to follow traffic laws when their lights are not activated. He
testified that he was familiar with the intersection where the accident occurred. He
indicated that he did not like it because “there’s always stuff going on at that gas
station that you could get roped into if you’re at that intersection and you’re trying
to get to something else.” The two gas stations located there were open 24-hours
and had “steady traffic.” He also stated that the intersection had obstructed views
in all directions, it was a “nightmare” if there was “a bunch of traffic,” lots of bus
accidents occur at the intersection, and the traffic lights are not timed correctly. At
time of the crash, however, he noted that there was not a lot of traffic because it was 1:00 a.m. but he also indicated there was steady traffic because of the 24-hour gas
stations.
{¶ 12} Kiernan discussed the stress in his personal life arising from medical
appointments for his wife. He noted that around the time of the accident, he was
behind on sleep because of both the extra hours of work and the need to attend
medical appointments when he would normally be sleeping.
{¶ 13} Kiernan also discussed the current police shortage in Cleveland and
the pressure to work extra hours because of the shortage. He admitted he felt
pressure to reduce response time. Immediately before the accident, Kiernan was
informed that his next assignment after delivery of the rape kit was for a high
priority stolen vehicle.
{¶ 14} After discovery concluded, Kiernan and Cleveland jointly moved for
summary judgment seeking dismissal of all claims based on statutory immunity
under R.C. 2744.02 and 2744.03. On March 26, 2025, the trial court denied the
motion for summary judgment because “there are multiple issues of material fact.”
This appeal follows.
II. Law and Analysis
A. Appellate Standard of Review
{¶ 15} We review an appeal from summary judgment under a de novo
standard. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996). We afford no
deference to the trial court’s decision and independently review the record to determine whether summary judgment is appropriate. Northeast Ohio Apt. Assn.
v. Cuyahoga Cty. Bd. of Commrs., 121 Ohio App.3d 188, 192 (8th Dist. 1997).
{¶ 16} Civ.R. 56(C) provides that before summary judgment may be granted,
a court must determine that
(1) no genuine issue as to any material fact remains to be litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) it appears from the evidence 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.
State ex rel. Duganitz v. Ohio Adult Parole Auth., 77 Ohio St.3d 190, 191 (1996). The
moving party carries an initial burden of setting forth undisputed specific facts that
demonstrate his or her entitlement to summary judgment. Dresher v. Burt, 75 Ohio
St.3d 280, 292-293 (1996).
B. Assignment of Error No. 1 — Political-Subdivision Immunity Under R.C. Ch. 2744.02
{¶ 17} The first assignment of error addresses whether the trial court erred
in denying summary judgment to Cleveland. Cleveland argues that it is entitled to
immunity from liability pursuant to R.C. 2744.02. Specifically, Cleveland contends
that Kiernan’s actions, while possibly negligent, do not constitute willful or wanton
misconduct as a matter of law. Therefore, none of the exceptions to immunity under
R.C. 2744.02 are applicable and summary judgment is proper. Because genuine
issues of material fact exist regarding the cause of the accident and whether Kiernan’s conduct rises to the level of willful or wanton misconduct, we overrule
appellants’ first assignment of error.
{¶ 18} R.C. 2744.02 governs the immunity of a political subdivision. The
Ohio Supreme Court has established a three-tier analysis to determine whether a
political subdivision is entitled to immunity under R.C. 2744.02. See, e.g., Colbert
v. Cleveland, 2003-Ohio-3319, ¶ 7; Greene Cty. Agricultural Soc. v. Liming, 89
Ohio St.3d 551, 555-557 (2000). The first tier provides for a general grant of
immunity for any act or omission of the political subdivision or its employees in
connection with a governmental or proprietary function. Colbert at ¶ 7; Liming at
556-557; R.C. 2744.02(A)(1). R.C. 2744.01(F) defines a political subdivision to
include municipal corporations such as Cleveland. R.C. 2744.01(C)(2) defines a
governmental function to include the “provision of police.” In this appeal, the
parties do not dispute that tier one of this analysis is satisfied and Cleveland enjoys
a general presumption of immunity. Robinson v. Cleveland, 2024-Ohio-969, ¶ 17
(8th Dist.).
{¶ 19} But this immunity is not absolute and may be revoked under the
second tier of the analysis if one of the five exceptions codified in
R.C. 2744.02(B)(1)-(5) apply. Colbert at ¶ 8; Carter v. Cleveland, 83 Ohio St.3d 24,
28 (1998). Applicable here is R.C. 2744.02(B)(1) that provides that a political
subdivision is “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.” For purposes of this appeal, Cleveland does not appear to deny that Kiernan may have been negligent in
his operation of a motor vehicle within the scope of his employment and authority
with Cleveland. Thus, Cleveland is deprived of immunity at this stage of the analysis.
{¶ 20} Cleveland’s immunity, however, may be restored if one of the
defenses identified under R.C. 2744(B)(1)(a)–(c) are applicable. Relevant here,
R.C. 2744(B)(1)(a) provides that the following is a full defense to liability:
(a) A member of the 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.
{¶ 21} Thus, under this full defense to liability, Cleveland must demonstrate
that (1) Kiernan is a member of its police department; (2) he was responding to an
emergency call; and (3) his operation of the motor vehicle did not constitute willful
or wanton misconduct. Robinson, 2024-Ohio-969, at ¶ 18 (8th Dist.), quoting Hale
v. Toth, 2023-Ohio-2954, ¶ 25 (8th Dist.). Again, for purposes of this appeal, the
parties also do not dispute that Kiernan is a police officer employed by Cleveland
and was responding to an emergency call at the time of the accident. Thus, the first
and second requirements to establish Cleveland’s defense to liability are satisfied.
{¶ 22} The only remaining issue under R.C. 2744(B)(1)(a) is whether
genuine issues of material fact remain regarding whether Kiernan’s operation of his
motor vehicle constituted willful or wanton misconduct. In Anderson v. Massillon, 2012-Ohio-5711, the Ohio Supreme Court clarified the definitions of these two terms
as follows:
Willful misconduct implies an intentional deviation from a clear duty or from a definite rule of conduct, a deliberate purpose not to discharge some duty necessary to safety, or purposefully doing wrongful acts with knowledge or appreciation of the likelihood of resulting injury.
Wanton misconduct is the failure to exercise any care toward those to whom a duty of care is owed in circumstances in which there is a great probability that harm will result.
Id. at paragraphs two and three of the syllabus. Notably, the Anderson Court also
confirmed that prior definitional language of wanton misconduct cited by Cleveland
in its briefing requiring a showing of “a disposition to perversity” had been
abandoned by the court in Hawkins v. Ivy, 50 Ohio St.2d 114, 117 (1977). Anderson
at ¶ 27-28.
{¶ 23} “Typically, issues regarding wantonness or willfulness are questions
for the jury to decide; however, the standard for showing such conduct is high.”
Taylor v. Cleveland, 2012-Ohio-3369, ¶ 22 (8th Dist.); accord Fabrey v. McDonald
Village Police Dept., 70 Ohio St.3d 351, 356 (1994). If the facts show that reasonable
minds could not conclude that the pertinent conduct meets that high standard, a
court may determine this issue as a matter of law. Id. When determining whether
such conduct rises to the level of willful or wanton as a matter of law, a court considers “a totality of the circumstances.” Stevenson v. Prettyman, 2011-Ohio-718,
¶ 43 (8th Dist.).
{¶ 24} However, Ohio case law also supports the “notion that questions of
fact regarding immunity are enough to overcome summary judgment.” Knox v.
Hetrick, 2009-Ohio-1359, ¶ 37 (8th Dist.). With regard to R.C. Ch. 2744, this court
has held:
This court must conduct a de novo review of a trial court’s decision overruling a motion for summary judgment in which a political subdivision or its employee seeks immunity. Hubbell v. Xenia, 2007- Ohio-4839, ¶ 21. If, after that review, only questions of law remain, the court of appeals may resolve the appeal. “If a genuine issue of material fact remains, the court of appeals can remand the case to the trial court for further development of the facts necessary to resolve the immunity issue.” Id.
Pakeer v. Cleveland, 2023-Ohio-4213, ¶ 8 (8th Dist.); see also Frank v. S.W. Ohio
Regional Transit Auth., 2020-Ohio-5497, ¶ 16 (1st Dist.). Accordingly, if we find
that genuine issues of material fact remain based on our review of the record,
summary judgment should not be granted.
{¶ 25} Initially, we note that Kiernan repeatedly testified at deposition that
he did not remember the accident. However, at different times in the record,
Kiernan also stated that he may have “fallen asleep,” “been momentarily distracted,”
“believed the light was green,” or unexpectedly lost consciousness. Because he
cannot remember the accident, Hill and Henderson also argue that he may have
made a conscious decision to drive through the intersection even though it was red.
These scenarios raise issues of material fact regarding the cause of the accident. {¶ 26} Kiernan’s testimony also provided evidence that imply his actions at
the time of the accident could have been motivated by pressure to decrease response
time and the urgency of completing delivery of the rape kit. There was also
testimony regarding additional stress and fatigue in his personal life that could have
contributed to the accident.
{¶ 27} Considering the totality of the circumstances — Kiernan’s conflicting
statements regarding why he entered the intersection including that he may have
fallen asleep, lack of memory of the accident, and the evidence of outside factors
possibly contributing to his state of mind during the accident — we find that genuine
issues of material fact exist regarding the cause of the accident and whether
Kiernan’s conduct rises to the level of wantonness. See, e.g., Bueno v. Cleveland,
2017-Ohio-8881, ¶ 10, 12 (8th Dist.) (finding genuine issues of material fact exist as
to whether government employee operated vehicle in wanton, willful, or reckless
manner when he could not remember the details of the accident or even being
involved in the accident). In light of the disputed material facts of this case,
summary judgment is not appropriate under Civ.R. 56(C) and the trial court’s
decision denying summary judgment to Cleveland is affirmed. Assignment of error
No. 1 is overruled.
C. Political-Subdivision-Employee Immunity Under R.C. 2744.03(A)(6)
{¶ 28} The second assignment of error argues that the trial court erred in
denying summary judgment to Kiernan. Kiernan asserts that he is entitled to immunity under R.C. 2744.03(A)(6) for his actions in connection with the accident.
Specifically, Kiernan argues that he did not act with a malicious purpose, in bad
faith, or in a wanton or reckless manner as a matter of law. Thus, summary
judgment is proper. Despite these arguments, we find that genuine issues of
material fact exist regarding the cause of the accident and whether Kiernan acted in
either a wanton or reckless manner. Therefore, we overrule this assignment of error
and affirm the trial court’s denial of summary judgment.
{¶ 29} R.C. 2744.03(A)(6) governs whether Kiernan, as an employee of a
political subdivision, is immune from civil liability. Specifically, R.C. 2744.03(A)(6)
provides that an employee is immune from liability unless one of the following
applies:
(a) The employee’s acts or omissions were manifestly outside the scope of the employee’s employment or official responsibilities;
(b) The employee’s acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner;
(c) Civil liability is expressly imposed upon the employee by a section of the Revised Code.
{¶ 30} The applicable exception to immunity in this case is whether there is
a genuine issue of material fact as to whether Kiernan’s acts or omissions were “with
malicious purpose, in bad faith, or in a wanton or reckless manner” under
R.C. 2744.06(A)(6)(b). Under this subsection, “the degree of care in imposing
liability for an employee of a political subdivision in his or her individual capacity is
slightly different.” Hale, 2023-Ohio-2954, at ¶ 41 (8th Dist.). Specifically, a political subdivision has a full defense to liability when the conduct involved is not willful or
wanton. Id. But an employee is immune from liability if the conduct involved is not
done with a malicious purpose, in bad faith, or in a wanton or reckless manner. Id.
Thus, ‘“by implication, an employee is immune from liability for negligent acts or
omissions.’” Id., quoting Anderson, 2012-Ohio-5711, at ¶ 23.
{¶ 31} There are no allegations that Keirnan acted with a malicious purpose
or in bad faith in this case. Accordingly, we will address only whether there is an
issue of material fact as to whether Kiernan’s acts or omissions may constitute
wanton or reckless conduct.
{¶ 32} As discussed above, the Ohio Supreme Court in Anderson defined
wanton misconduct as “the failure to exercise any care toward those to whom a duty
of care is owed in circumstances in which there is a great probability that harm will
result.” Anderson at paragraph three of the syllabus. The Anderson Court also
defined reckless conduct as “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.” Id. at
paragraph four of the syllabus.
{¶ 33} Again, issues regarding recklessness and wantonness are generally
questions for the jury to decide. Stevenson, 2011-Ohio-718, at ¶ 43 (8th Dist.).
While this standard is high, summary judgment under Civ.R. 56(C) remains
improper if genuine issues of material fact exist regarding whether the subject
conduct can be characterized as wanton or reckless. Id.; see also Pakeer, 2023- Ohio-4213, at ¶ 8 (8th Dist.); see also Frank, 2020-Ohio-5497, at ¶ 16 (1st Dist.).
We make this determination considering the totality of the circumstances.
Stevenson at ¶ 43.
{¶ 34} For the same reasons discussed under the first assignment of error,
we find that there are genuine issues of material fact regarding the cause of the
accident and whether Kiernan’s conduct was wanton or reckless. These factual
issues are properly resolved by the factfinder. Thus, the trial court’s decision
denying Kiernan’s motion for summary judgment is affirmed. Assignment of error
No. 2 is overruled.
{¶ 35} Judgment affirmed, and case remanded.
It is ordered that appellees recover from appellants the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
_________________________________ MICHELLE J. SHEEHAN, PRESIDING JUDGE
LISA B. FORBES, J., and ANITA LASTER MAYS, J., CONCUR