[Cite as Jones v. Soto, 2023-Ohio-3107.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN )
MALCOLM JONES, et al. C.A. No. 22CA011870
Appellees
v. APPEAL FROM JUDGMENT ENTERED IN THE EDWIN SOTO, et al. COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO Appellants CASE No. 21CV203168
DECISION AND JOURNAL ENTRY
Dated: September 5, 2023
STEVENSON, Judge.
{¶1} Edwin Soto and Orlando Colon appeal from the judgment of the Lorain County
Court of Common Pleas denying their motion for summary judgment. For the following reasons,
this Court reverses.
I.
Background
{¶2} This appeal arises out of an April 13, 2019, motor vehicle accident between a
vehicle in which Malcom Jones and Yesenia Rodriguez (“Appellees”) were riding as passengers
and a vehicle driven by non-party J.D. At the time of the accident, Officer Edwin Soto and
Sergeant Orlando Colon (collectively the “Officers”1) were following J.D.’s vehicle due to
suspected criminal activity.
1 This Court notes that Sergeant Colon testified during his deposition that he is no longer employed with the Lorain Police Department. 2
{¶3} Appellees filed a complaint against the Officers who, at all relevant times, were
employed by the Lorain Police Department. Appellees alleged that the Officers:
engaged in and participated in a high-speed dangerous police chase of [J.D.], who was a suspect for a non-violent crime, and pursued him off the paved roadway of E. 29th Street, across a large open grassy field located in a residential area where may people live including children and senior citizens, and then back onto the paved roadway on the other side of E. 29th Street.
Appellees alleged that J.D. “emerged from the large open grassy field at a high rate of speed and
was being chased by [the Officers]” when J.D. lost control of his vehicle and struck their vehicle,
causing injury.
{¶4} Appellees further alleged the Officers were not entitled to R.C. 2744.03 immunity
because:
they were engaged in wanton and/or reckless conduct in pursuing a non-violent suspect in a high-speed chase through a residential area, off the roadway, and across an open grassy field located in a residential area at excessive speeds.
Discovery followed and the Officers were deposed.
Summary Judgment Motions
{¶5} The Officers filed a motion for summary judgment on April 13, 2022, arguing they
were entitled to immunity under R.C. 2744.03. The Officers indicated in their motion that (1) they
were not in a vehicular pursuit at the time J.D. crashed into Appellees, and (2) even if they were
in a vehicular pursuit, they did not act recklessly or wantonly under the factors set forth in Hoffman
v. Gallia Cty. Sheriff’s Office, 4th Dist. Gallia No. 17CA2, 2017-Ohio-9192, ¶ 49. The Officers
also argued they had probable cause to conduct a traffic stop because J.D. was driving without a
valid driver’s license; they had reasonable suspicion that J.D. was driving while impaired because
they observed J.D. swerving in the roadway even before J.D. became aware they were following
him, and because J.D. was involved in recent gang-related shootings. 3
{¶6} In support of their motion, the Officers attached numerous documents, including:
(1) the transcripts of their depositions; (2) their affidavits wherein they averred, in part, that they
did not see any pedestrians during the incident, and that they “terminated the vehicular pursuit in
favor of following [J.D.] using lights and sirens in an effort to warn citizens on the other side of
the grass field[;]” (3) a report from an accident reconstructionist indicating, among other things,
that J.D. was traveling 64 m.p.h. when he crashed into Appellees’ vehicle, that about 31 seconds
elapsed from the time the Officers radioed dispatch regarding a fleeing vehicle until they radioed
dispatch regarding the crash, and that the length of the field was about 589 feet; (4) Appellees’
answers to interrogatories wherein Appellees indicated that the Officers acted recklessly and/or
wantonly because they were “chasing [J.D.] across an open field located in a residential area at a
high rate of speed”; and, (5) a copy of the Lorain Police Department’s policy regarding vehicular
pursuits.
{¶7} Appellees filed a memorandum in opposition to the Officers’ motion for summary
judgment. Appellees argued the Officers were engaged in a high-speed pursuit and that the Officers
acted wantonly or recklessly under the factors set forth in Hoffman, supra. In support of their
memorandum in opposition, Appellees attached an affidavit from Mario Rodriguez-Baez, the
driver of the vehicle in which they were riding as passengers, who is not a party to their lawsuit,
and an affidavit from Ms. Rodriguez. In their affidavits, the driver and Ms. Rodriguez restated the
general, conclusory allegations made in their complaint, averring they saw the Officers “following
[J.D.’s] car very closely out of the field and [the Officers’] SUV was also traveling at a fast and
unsafe rate of speed.” Appellees also attached the affidavit and report of Dr. Michael D. Lyman,
who opined the Officers violated the departmental pursuit policy. 4
{¶8} In their reply, the Officers argued Appellees’ averments are “merely allegations
previously made in [Appellees’] Complaint, and do[] not in any way refute, rebut, or otherwise
qualify the stated speed (20-35 MPH) in which [they] have consistently provided as being their
traveling speed across the grassy field.”
Summary Judgment Evidence
Deposition of Sergeant Orlando Colon
{¶9} Sergeant Colon testified, on April 13, 2019, he was riding in an unmarked SUV
with Officer Soto. While on duty, Sergeant Colon saw a known gang member, J.D., driving a black
Honda Civic. Sergeant Colon knew J.D. did not have a valid driver’s license because he “had just
made intelligence bulletins about [J.D.]” and other known gang members. Further, Sergeant Colon
had reasonable suspicion to believe J.D. had been involved in a gang-related shooting earlier that
morning, and thought J.D. was likely armed.
{¶10} Sergeant Colon told Officer Soto to follow J.D.’s vehicle. Sergeant Colon then
observed J.D.’s vehicle speeding and swerving in the roadway. Sergeant Colon observed J.D.
“riding the car in front of him’s (sic) bumper, and * * * swerving from side to side behind that car
in an aggressive manner.”
{¶11} When the Officers caught up to J.D.’s vehicle, they decided to initiate a traffic stop
and activated the SUV’s lights and sirens. According to Sergeant Colon, J.D. looked surprised
and began to slowly pull to the side of the road while reaching for something underneath the
driver’s seat, which Sergeant Colon described as “furtive movements.”
{¶12} J.D. pulled onto a dead-end street, and he “gunned it * * * [p]edal to the metal
acceleration, literal smoke coming out of the back tires from the back of [J.D.’s] car as he did so.”
Because it was a dead-end street, Sergeant Colon thought J.D. was going to abandon his vehicle 5
and run into a house at the end of the street. At this point, J.D. was far ahead of the Officers.
Sergeant Colon testified that the Officers were not in an active vehicular pursuit of J.D. when they
turned down the dead-end street.
{¶13} Once the Officers got “a little bit further up the block,” Sergeant Colon observed
J.D. drive onto a grassy field. By the time the Officers arrived at the field, J.D.’s vehicle was
“already almost across the field[.]” Sergeant Colon testified that J.D’s vehicle was “skidding back
and forth across the field[.]”
{¶14} The Officers proceeded across the grassy field “very slowly.” The Officers kept
the SUV’s lights and sirens activated to alert people of the approaching vehicles. The Officers
were still in the grassy field when J.D.’s vehicle crashed into the vehicle in which Appellees were
riding as passengers. Because the Officers were so far back, Sergeant Colon did not see J.D. hit a
car.
Deposition of Officer Edwin Soto
{¶15} Officer Soto testified that on April 13, 2019, he was driving an unmarked SUV with
Sergeant Colon riding as a passenger. Sergeant Colon recognized J.D., a known gang member, as
the driver of a vehicle. Because Sergeant Colon knew J.D. did not have a valid driver’s license
and was probably armed, Officer Soto and Sergeant Colon followed J.D.’s vehicle. J.D. began
driving “all over the road[,]” and J.D. did not pull over when Officer Soto activated the SUV’s
lights and sirens. Officer Soto observed J.D.’s vehicle swerving and J.D. “lunging underneath the
front seat.”
{¶16} Officer Soto observed J.D. accelerate down a dead-end street. Because it was a
dead-end street, Officer Soto anticipated J.D. was going to “bail out and run.” J.D., however,
instead turned and proceeded across a grassy field. Officer Soto estimated that J.D.’s vehicle 6
traveled “70 plus” miles per hour across the field. Officer Soto testified the Officers were not in
an active vehicular pursuit when J.D. turned down the dead-end street.
{¶17} Officer Soto further testified the Officers “weren’t very close to [J.D.] at all” when
he turned and proceeded across the grassy field. Officer Soto testified that the SUV’s lights and
sirens were activated and that the Officers were traveling between 20 m.p.h. to 30 m.p.h. across
the field. Officer Soto did not traverse faster across the “grassy and uneven” field because he
“didn’t trust the [SUV] to make it all the way through without becoming disabled.” Officer Soto
testified that J.D.’s vehicle crashed before the Officers exited the field.
Affidavit of Sergeant Colon
{¶18} In support of their motion for summary judgment, the Officers also submitted the
affidavit of Sergeant Colon. The narrative report of the April 13, 2019, incident was drafted by
Sergeant Colon and is attached to his affidavit. Sergeant Colon states in his affidavit that, during
the incident, there “were approximately four vehicles in which [J.D.] drove erratically behind” and
that, “once [J.D.] passed those vehicles, [he] saw no other vehicles.” Sergeant Colon further states
in his affidavit that he saw no pedestrians during the entirety of the April 13, 2019, incident and,
consistent with his deposition testimony, that:
[u]pon seeing [J.D.] accelerate ‘pedal to the metal’ down E. 29th Street at a high rate of speed, Officer Soto and I terminated the vehicular pursuit in favor of following [J.D.] using lights and sirens in an effort to warn citizens on the other side of the grass field.
Accident Reconstructionist Report
{¶19} The Officers also attached an accident reconstructionist report to their motion for
summary judgment. The accident reconstructionist opined that J.D. was traveling 64 m.p.h. when
he crashed into Appellees’ vehicle; that 31 seconds elapsed from the time the Officers radioed 7
dispatch regarding a fleeing vehicle until they radioed dispatch regarding the crash, and; that the
length of the grassy field was about 589 feet.
{¶20} In addition to the deposition testimony, affidavit, and accident reconstructionist
report, the Officers attached Appellees’ answer to interrogatories, a Lorain police department
criminal intelligence bulletin, and a Lorain police department case report to their motion for
summary judgment.
Affidavits of Yesenia Rodriguez and Mario Rodriguez-Baez
{¶21} In support of their opposition to summary judgment, Appellees filed the affidavits
of Ms. Rodriguez and Mr. Rodriguez-Baez who were both inside the vehicle struck by J.D. The
nearly identical affidavits restate the conclusory allegations in Appellees’ complaint indicating the
Officers travelled “at a fast and unsafe rate of speed” in their pursuit of J.D.
Affidavit and Report of Dr. Michael D. Lyman
{¶22} The Appellees also filed the affidavit and report of Dr. Michael Lyman, an expert
on police practices and procedures, who opined the Officers were in “pursuit” of J.D., and their
actions were “reckless and unnecessary” because it violated Lorain Police Pursuit Policy 05.41.
Trial Court Decision
{¶23} The trial court denied the Officers’ motion for summary judgment. In so doing, the
trial court indicated Appellees “presented conflicting evidence by affidavit that [the Officers’]
SUV was traveling at a fast and unsafe speed and that they were traveling very closely behind
[J.D.] and that [the Officers’] vehicle was in ‘hot pursuit’ of [J.D.]” The trial court stated that the
Officers were not entitled to summary judgment because credibility determinations were necessary
to decide whether the Officers acted in a wanton or reckless manner.
{¶24} The Officers appealed, raising one assignment of error for this Court’s review. 8
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED BY DENYING [THE OFFICERS’] MOTION FOR SUMMARY JUDGMENT, AS OFFICERS ARE ENTITLED TO IMMUNITY UNDER R.C. § 2744; THUS, THERE ARE NO GENUINE ISSUES OF MATERIAL FACT, OFFICERS ARE ENTITLED TO JUDGMENT AS A MATTER OF LAW, AND THIS HONORABLE COURT MUST REVERSE THE TRIAL COURT’S DENIAL OF OFFICERS’ MOTION FOR SUMMARY JUDGMENT.
{¶25} In their sole assignment of error, the Officers argue the trial court erred in denying
them immunity, pursuant to R.C. 2744.03(A)(6), because they did not act in a reckless or wanton
manner as a matter of law. This Court agrees.
Standard of Review for Summary Judgment
{¶26} Appellate review of an award of summary judgment is de novo. Summary
judgment is appropriate under Civ.R. 56 when: (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) viewing the
evidence most strongly in favor of the nonmoving party, reasonable minds can come to but one
conclusion and that conclusion is adverse to the nonmoving party. Temple v. Wean United, Inc.,
50 Ohio St.2d 317, 327 (1977), citing Civ.R. 56(C). A court must view the facts in the light most
favorable to the nonmoving party and must resolve any doubt in favor of the nonmoving party.
Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 358-359 (1992). A trial court does not have the liberty
to choose among reasonable inferences in the context of summary judgment, and all competing
inferences and questions of credibility must be resolved in the nonmoving party’s favor. Perez v.
Scripps-Howard Broadcasting Co., 35 Ohio St.3d 215, 218 (1988). 9
R.C. 2744.03(A)(6) – Immunity of Employees of Political Subdivision
{¶27} The Supreme Court of Ohio has stated “the burden necessary to deny immunity to
police officers is onerous.” Argabrite v. Neer, 149 Ohio St.3d 349, 2016-Ohio-8374, ¶ 31. As
such, “‘a police officer * * * cannot be held personally liable for acts committed while carrying
out his or her official duties unless one of the exceptions to immunity is established.’” Szefcyk v.
Kucirek, 9th Dist. Lorain No. 15CA010742, 2016-Ohio-171, ¶ 11, quoting Cook v. Cincinnati, 103
Ohio App.3d 80, 90 (1st Dist.1995). In this regard, R.C. 2744.03(A)(6) provides that an “employee
is immune from liability unless * * * (b) [t]he employee’s acts or omissions were with malicious
purpose, in bad faith, or in a wanton or reckless manner.” “These are rigorous standards that will
in most circumstances be difficult to establish, especially with respect to a law-enforcement officer
carrying out the statutory duty to arrest and detain a person violating the law.” Argabrite at ¶ 8,
citing R.C. 2935.03(A)(1). As the Argabrite Court further explained:
An officer’s role in our society creates a unique lens through which to view his or her actions and through which to determine whether those actions may have been malicious, in bad faith, wanton or reckless. We expect law-enforcement officers to protect the public, but that expectation need not mean that an officer must sit idly by while a suspect flees the scene of a crime, particularly when the suspect's flight itself endangers the general public further. The danger of a high-speed chase alone is not enough to present a genuine issue of material fact concerning whether an officer has acted with a malicious purpose, in bad faith or in a wanton or reckless manner.
(Internal citation omitted.) Id. at ¶ 16.
{¶28} As a preliminary matter, it is undisputed The City of Lorain is a political
subdivision of the State of Ohio and the Officers were employees of the Lorain Police Department
at the time of the accident. See R.C. 2744.01(F) (defining “political subdivision”); R.C.
2744.01(B) (defining “employees”). We further note there is no dispute the Officers were acting
within the course and scope of their employment when the accident occurred. The trial court 10
recognized that, at all times, the Officers “took steps in an attempt to protect the public from the
actions of a suspect who they believed may have been involved earlier in a shooting” and the
Officers “were carrying out the statutory duty to arrest and detain a person violating the law.” As
such, the Officers met their burden to show they were entitled to statutory immunity.
Question of Law Presented
{¶29} “[A] party seeking to exercise a statutory exception bears the burden of
demonstrating that exception.” Huber v. State Farm Mut. Auto. Ins. Co., 9th Dist. Summit No.
29962, 2022-Ohio-3022, ¶ 55, citing State ex rel. Nat. Broadcasting Co., Inc. v. City of Cleveland,
38 Ohio St.3d 79, 83 (1988). Thus, our legal analysis focuses upon whether Appellees, the
nonmoving parties, met their burden of pointing to evidence in the record that creates a genuine
issue of material fact regarding whether the Officers acted in a wanton or reckless manner in order
to rebut the presumption of immunity to which they are statutorily entitled.
Definition of Wanton Misconduct
{¶30} The Supreme Court of Ohio has 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 v. Massillon, 134 Ohio St.3d 380, 2012-
Ohio-5711, ¶ 33. Accord Hawkins v. Ivy, 50 Ohio St.2d 114 (1977), syllabus (“Where the driver
of an automobile fails to exercise any care whatsoever toward those to whom he owes a duty of
care, and his failure occurs under circumstances in which there is great probability that harm will
result, such failure constitutes wanton misconduct.”). See also Tighe v. Diamond, 149 Ohio St.
520, 526 (1948) (defining wanton misconduct as “an entire absence of all care for the safety of
others and an indifference to consequences”). 11
{¶31} “A court that is determining whether a defendant engaged in wanton misconduct
thus essentially applies a two-part test.” Huber at ¶ 58. As this Court explained:
The first question is whether the defendant failed to exercise any care whatsoever towards those to whom he owes a duty of care. This ‘requires that we determine the duty [the defendant] owed [to the plaintiff], and also the extent of care’ that the defendant exercised. The second question is whether the failure to exercise any care created a great probability that harm will result. This requires courts to ‘consider the nature of the hazard created by the circumstances.’
(Internal citations omitted.) Id. Generally, “‘minimal efforts to warn [are] sufficient to overcome
the allegation of wanton misconduct.’” Id., citing Pisel v. Baking Co., 61 Ohio St.2d 142 (1980).
Definition of Reckless Conduct
{¶32} “Reckless conduct,” as defined by the Supreme Court of Ohio, 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, 134 Ohio St.3d at 388. To be reckless, “‘[t]he actor must be conscious that his conduct
will in all probability result in injury.’” Chunyo v. Gauntner, 9th Dist. Summit No. 28346, 2017-
Ohio-5555, ¶ 9, quoting O’Toole v. Denihan, 118 Ohio St.3d 374, 2008-Ohio-2574, paragraph
three of the syllabus. “[A]n officer’s mere negligence in the performance of official duties does
not give rise to personal liability.” Hoffman, 4th Dist. Gallia No. 17CA2, 2017-Ohio-9192, at ¶ 37,
citing Fabrey v. McDonald Village Police Dept., 70 Ohio St.3d 351, 357 (1994).
Relevant Factors in Determining Wanton or Reckless Conduct
{¶33} This Court has adopted multiple factors, as set forth in Hoffman, supra, relevant to
determining whether a law enforcement officer operated a motor vehicle wantonly or recklessly.
See Anderson v. Westlake, 9th Dist. Lorain No. 19CA011512, 2021-Ohio-4582, ¶ 15; Huber at ¶
59. These factors include, but are not limited to: 12
(1) the officer’s speed; (2) whether the officer was traveling in the correct lane of travel; (3) whether the officer had the right-of-way; (4) the time of day; (5) the weather; (6) the officer’s familiarity with the road; (7) the road contour and terrain; (8) whether traffic was light or heavy; (9) whether the officer made invasive maneuvers (i.e., attempting to force the vehicle from the road) or evasive maneuvers (i.e., attempting to avoid a collision); (10) the nature and seriousness of the offense that prompted the emergency; (11) whether the officer possessed a safer alternative; (12) whether the officer admitted to disregarding the consequences of his actions; (13) whether the officer activated the vehicle’s lights and siren[]; and (14) whether the officer violated any applicable departmental policy.
Westlake at ¶ 15, citing Hoffman at ¶ 49. “No one factor is determinative; rather, we must instead
consider the totality of the circumstances surrounding the incident.” Huber at ¶ 59, citing Westlake
at ¶ 15.
{¶34} Further, as indicated by the Supreme Court of Ohio: “[t]he danger of a high-speed
chase alone is not enough to present a genuine issue of material fact concerning whether an officer
has acted with a malicious purpose, in bad faith or in a wanton or reckless manner.” Argabrite,
149 Ohio St.3d 349, 2016-Ohio-8374, at ¶ 16. See also Westlake at ¶ 36 (although the high-speed
pursuit reached speeds of up to 80 miles per hour, occurred at night, proceeded through
construction zones, school zones, and densely populated commercial and residential areas, and
where possible departmental policy violations occurred, this Court affirmed the granting of
summary judgment as the plaintiffs failed to meet their burden in showing that the individual
officers acted in a wanton or reckless manner).
The Hoffman Factors
{¶35} Here, according to the record, the Officers followed J.D. into a field during daylight
hours because he was a known gang member suspected of being involved in a shooting earlier that
day. J.D. began driving erratically prior to entering the field as the Officers drove behind his
vehicle. The Officers took no invasive or evasive action. Importantly, in order to prevent an 13
accident, the Officers attempted to warn citizens of the potential dangers of J.D.’s erratic driving
by turning on their lights and sirens.
{¶36} Further, in considering the Hoffman factors, the evidence in the record establishes:
(1) the field had no posted speed limit; (2) J.D. took the pursuit off road where there was no correct
lane of travel or right of way; (3) the incident occurred during daylight hours, with no precipitation;
(4) Sergeant Colon was very familiar with the area and field, which allowed him to keep an eye
out for any pedestrians; (5) traffic was light in the area and no pedestrians were on the field; (6)
the Officers made no invasive or evasive maneuvers; (7) J.D. was a known gang member suspected
of being involved in a shooting earlier that day; (8) J.D. made furtive movements in the vehicle by
reaching his right hand under the seat; (9) J.D. was believed to be armed; (10) J.D. was driving
erratically while the Officers initially followed him at a low rate of speed, and J.D. was driving
without a driver’s license; (11) the Officers were far enough behind J.D. that they could not see
the crash and did not know J.D. hit another vehicle; (12) although Officer Soto admitted that he
did not take time to consider “that it might not be safe to drive across this field in a residential
area[,]” the Officers did not admit to disregarding the consequences of their actions or a known
risk; and (13) the Officers used their lights and sirens to warn individuals that J.D. was driving at
a high rate of speed across the field in an effort to prevent an accident. Further, the evidence
supports the fact that J.D. drove onto the field while the Officers were still a distance away, which
indicates J.D. did so on his own accord and was not chased onto the field by the Officers.
{¶37} Indeed, as indicated above, Appellees attempt to rebut the presumption of immunity
by attesting the Officers were traveling “at a fast and unsafe rate of speed.” This is a non-specific
conclusory restatement of the claims alleged in Appellees’ complaint and does not point to a
genuine issue of material fact to be litigated. See Estate of Henderson v. Henderson, 9th Dist. 14
Lorain No. 18CA011301, 2018-Ohio-5264, ¶ 9 (recognizing that, for an affidavit to satisfy a non-
moving party’s reciprocal Dresher burden, the affidavit must point to a genuine issue of material
fact). See also Roth v. Tokar Tower Office. Condominiums Unit Owners’ Ass’n, Inc., 9th Dist.
Lorain No. 21CA011811, 2023-Ohio-279, ¶ 22, quoting Belknap v. Vigorito, 11th Dist. Trumbull
No. 2003-T-0147, 2004-Ohio-7232, ¶ 27 (“Allowing a non-moving party to avoid summary
judgment by submitting an affidavit containing nothing more than contradictions of the moving
party’s claims, ‘could enable the nonmoving party to avoid summary judgment in every case,
crippling the use of Civ.R. 56 as a means to facilitate the early assessment of the merits of claims,
pre-trial dismissal of meritless claims, and defining and narrowing issues for trial.’”). However,
even if the Officers had been travelling at a fast rate of speed, in pursuit of J.D., speed is just one
of many Hoffman factors to consider. Further, based upon this record and as indicated in Argabrite
speed alone does not create a genuine issue of material fact as to whether the Officers acted in a
wanton or reckless manner. Argabrite, 149 Ohio St.3d 349, 2016-Ohio-8374, at ¶ 16. As such, the
affidavits submitted by Appellees are deficient to meet Appellees’ reciprocal Dresher burden to
overcome the presumption of immunity. See Westlake, 9th Dist. Lorain No. 19CA011512, 2021-
Ohio-4582, at ¶ 36.
{¶38} Additionally, as to any potential policy violation, this Court has stated:
while a violation of departmental policy may be relevant to determining the culpability of a course of conduct, it does not equate to per se recklessness. Anderson at ¶ 37; Argabrite at ¶ 21. Evidence of a policy violation demonstrates negligence, at best, unless there is evidence the actor has knowledge that his “‘conduct will in all probability result in injury.’” Argabrite at ¶ 21, quoting [O'Toole v. Denihan, 118 Ohio St.3d 374 (2008), paragraph three of the syllabus.]
Westlake at ¶ 31. Here, Appellees point to no evidence in the record showing the Officers had
knowledge their conduct in all probability would result in injury. 15
{¶39} Thus, based upon the Hoffman factors and the totality of the circumstances,
including the Officers’ attempt to warn citizens of the potential danger of J.D.’s erratic driving,
the record does not support the Officers acted in a wanton or reckless manner. Accordingly, based
upon this Court’s de novo review, when reviewing the evidence and all reasonable inferences in a
light most favorable to Appellees, we conclude Appellees have not met their burden of pointing to
any evidence in the record that creates a genuine issue of material fact regarding whether the
Officers acted in a wanton or reckless manner in order to rebut the presumption of immunity to
which the Officers are statutorily entitled. Thus, because no exception to immunity applies, the
Officers are entitled to statutory immunity as a matter of law.
{¶40} Accordingly, the Officers’ sole assignment of error is sustained.
III.
{¶41} The Officers’ sole assignment of error is sustained. The judgment of the Lorain
County Court of Common Pleas is reversed, and the cause is remanded for proceedings consistent
with this opinion.
Judgment reversed, cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of
this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period 16
for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the
docket, pursuant to App.R. 30.
Costs taxed to Appellees.
SCOT STEVENSON FOR THE COURT
SUTTON, P. J. CONCURS.
FLAGG LANZINGER, J. DISSENTING.
{¶42} I respectfully dissent from the majority opinion reversing the trial court’s order that
denied the Officers’ motion for summary judgment. While the trial court addressed the Hoffman
factors in its decision, it primarily denied the Officers’ motion for summary judgment on the basis
that the parties presented conflicting evidence as to the Officers’ speed while the Officers drove
through the field, as well as the proximity of the Officers’ SUV to J.D.’s vehicle. The affidavits
attached to Appellees’ brief in opposition to the Officers’ motion for summary judgment indicated
that the driver and Ms. Rodriguez saw the Officers driving through the field at a “fast and unsafe
rate of speed.” They also averred that they saw the Officers “following [J.D.’s] car very closely
out of the field and [the Officers’] SUV was also traveling at a fast and unsafe rate of speed.”
Thus, under Appellees’ version of the events, the Officers were speeding through a grassy, uneven
field in a residential area inhabited by children and elderly people in the middle of the day. The
Officers did this knowing (per Sergeant Colon’s deposition testimony) that people walk through 17
that field during the day to get to retail stores. The Officers also did this while actively pursuing
J.D., who (according to the driver and Ms. Rodriguez’s affidavits) was also traveling at a fast and
unsafe speed, so much so that he lost control of his vehicle when he reentered the roadway. When
asked whether he “ever t[ook] the time to consider that it might not be safe to drive across this
field in a residential area[,]” Officer Soto responded: “No.”
{¶43} The averments in Appellees’ affidavits directly contradict the Officers’ version of
the events and necessarily affect at least one of the Hoffman factors, that is, the Officers’ speed.
See Hoffman v. Gallia Cnty. Sheriff’s Office, 4th Dist. Gallia No. 17CA2, 2017-Ohio-9192, ¶ 49.
Under the circumstances of this case, I would conclude that, at a minimum, the conflicting
evidence regarding the Officers’ speed and their proximity to J.D.’s vehicle while J.D. drove
through the field are genuine issues of material fact. In other words, viewing the evidence in a
light most favorable to Appellees, I would conclude that Appellees met their reciprocal summary-
judgment burden of establishing that a genuine issue of material fact exists as to whether the
Officers acted recklessly and/or wantonly under the circumstances presented in this case. See
Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996).
{¶44} The majority opinion, however, erroneously views the evidence in a light most
favorable to the Officers. For example, the majority relies upon the Officers’ testimony that: (1)
they were driving at a slow rate of speed; (2) they were far enough behind J.D. that they did not
even see the crash; and (3) they were not in an active vehicular pursuit, which would have triggered
their obligation to follow policies and guidelines regarding vehicular pursuits. The majority
concludes that, even if the Officers engaged in a high-speed pursuit of J.D., the Officers did not
engage in reckless or wanton conduct. I disagree. 18
{¶45} Far less concerning conduct, albeit in the context of reckless operation of a vehicle
under R.C. 4511.20, has been found to be willful and/or wanton conduct. See, e.g., State v. Tudor,
11th Dist. Portage No. 2018-P-0018, 2019-Ohio-24, ¶ 13 (upholding the defendant’s conviction
under R.C. 4511.20 because the defendant “was operating his bicycle for periods of time with no
hands on the handle bars while holding a cup in one hand and on a commercial street with traffic,
parked cars, and pedestrians present.”); City of Cleveland v. Davis, 8th Dist. Cuyahoga No.
107138, 2019-Ohio-543, ¶ 21 (“Either driving between traffic lanes or driving with an open car
door could constitute a willful or wanton disregard for the safety of persons [for purposes of R.C.
4511.20].”); Brunswick v. Bilski, 71 Ohio App.3d 557 (9th Dist.1991) (abruptly stopping a vehicle
in a lane of traffic in response to another motorist’s sounding of her horn after being cut off by the
first driver constitutes wanton and willful conduct for purposes of R.C. 4511.20). I acknowledge
the unique position of police officers and the importance of governmental immunity on their ability
to perform their jobs, but that immunity is not limitless. While a fact finder might ultimately
believe the Officers’ version of the events and/or determine that the underlying conduct does not
amount to reckless or wanton conduct, I would hold the trial court did not err by declining to do
so at the summary-judgment stage in this case. This is especially so considering that “[a] trial
court does not have the liberty to choose among reasonable inferences in the context of summary
judgment, and all competing inferences and questions of credibility must be resolved in the
nonmoving party’s favor.” See Jacobson v. Akron Children’s Hosp., 9th Dist. Summit No. 30188,
2023-Ohio-2225, ¶ 11, citing Perez v. Scripps-Howard Broadcasting Co., 35 Ohio St.3d 215, 218
(1988); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (“Credibility determinations,
the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury
functions, not those of a judge,” when ruling on a motion for summary judgment). Here, the 19
majority erroneously resolves all competing inferences and questions of credibility in favor of the
moving party: the Officers.
{¶46} Additionally, the majority erroneously discounts the affidavits Appellees submitted
in support of their brief in opposition to the Officers’ motion for summary judgment, categorizing
them as general and conclusory. But aside from affidavits from witnesses to the events, it is
unclear what evidence, if any, Appellees could have submitted to create a genuine issue of material
fact in this case. Moreover, Appellees submitted an expert report from an expert who opined that
the Officers engaged in reckless conduct based upon Appellees’ version of the events, which the
majority fails to acknowledge. Here, I would conclude that Appellees’ affidavits, combined with
their expert report, pointed to genuine issues of material fact that precluded summary judgment.
{¶47} Moreover, the case law the majority relies upon does not warrant a different
conclusion. For example, the majority relies upon this Court’s prior decision in
Anderson v. Westlake, 9th Dist. Lorain No. 19CA011512, 2021-Ohio-4582. There, this Court
affirmed the decision of the trial court, which granted the officers’ motion for summary judgment
on the basis that no genuine issue of material fact existed as to whether the officers acted recklessly
during a high-speed chase that resulted in a collision that injured several third parties. Id. at ¶ 3,
4, 37. There, unlike here, the parties did not dispute the facts surrounding the pursuit. For example,
the officers acknowledged that they engaged in a high-speed pursuit, and dashcam video
corroborated some of their version of the events. See, e.g., id. at ¶ 18, 19, 20, 25, 35, 41 (citing
the dashcam videos). The issue was simply whether those actions amounted to reckless conduct
under R.C. 2744.03(A)(6). See id. at ¶ 13, 27. Here, the Officers denied engaging in a vehicular
pursuit, there was no dashcam video of the incident to corroborate their version of the events, and
the Officers’ actions themselves are in dispute. 20
{¶48} The majority also relies upon Huber v. State Farm Mut. Auto Ins. Co., 9th Dist.
Summit No. 29962, 2022-Ohio-3022. That case also addresses reckless and wanton conduct in
the context of summary judgment in a governmental immunity case. That decision, however,
likewise does not support the majority’s position. There, eyewitness affidavits, dashcam video
(albeit limited), and “Event Data Recorder” data from the police officer’s cruiser corroborated the
officer’s version of the events. Id. at ¶ 27-44. Unlike here, the plaintiff in Huber “did not present
any affidavits or witness testimony in support of his opposition to summary judgment.” Id. at ¶ 6.
Huber is distinguishable from the instant case and does not warrant a different conclusion.
{¶49} Having reviewed the record, I would conclude that Appellees met their reciprocal
summary-judgment burden of establishing that genuine issues of material fact remain to be
litigated. I, therefore, would conclude that the trial court did not err as a matter of law when it
denied the Officers’ motion for summary judgment. Accordingly, I respectfully dissent.
APPEARANCES:
PATRICK D. RILEY, Law Director, and JOSEPH T. LAVECK, Assistant Law Director, for Appellants.
R. CRAIG MCLAUGHLIN, Attorney at Law, for Appellees.