Pressler v. City of Franklin

2017 Ohio 1408, 90 N.E.3d 1
CourtOhio Court of Appeals
DecidedApril 17, 2017
DocketNO. CA2016–06–050
StatusPublished
Cited by2 cases

This text of 2017 Ohio 1408 (Pressler v. City of Franklin) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pressler v. City of Franklin, 2017 Ohio 1408, 90 N.E.3d 1 (Ohio Ct. App. 2017).

Opinions

PIPER, J.

{¶ 1} Defendants-appellants appeal a decision of the Warren County Court of Common Pleas denying their motion for summary judgment in a suit filed against them by plaintiff-appellee, Tamra Pressler.

Initial Facts

{¶ 2} In 2011, a 9-1-1 dispatcher received a call from Laura Chasteen, who reported hearing yells for help. However, Chasteen could not identify exactly where the yells were coming from. In full, the 9-1-1 call was recorded as follows:

Dispatcher: 911 what is your emergency?1
Caller: Ah, I live down here over by the river and we where [sic] standing outside and we heard some man screaming "Help" "Help" and we ran back here and we could hear him crying but we cannot see anybody....
Dispatcher: Where do you live?
Caller: Ah, it's Ruthy what street do you live on? What street do you live on? What street? It's, it's, it's over by the river bank....
Dispatcher: Ok, can you tell me where you are so I can send an officer out to you?
Caller: Ah I guess just send them to her house on Eighth Street
Dispatcher: What's the address?
Caller: What's the address? It's the end of Eighth Street. I don't know the address, its [sic] right by the levy [sic] at the end of Eight Street
Dispatcher: And what's your name?
Caller: Laura
Dispatcher: Ok, will you be standing out there so he can find you?
Caller: Yes ...
Dispatcher: All right will [sic] send them out ...

{¶ 3} Two police officers arrived separately, and each searched different areas along the Great Miami River. It had been raining extensively and the river had risen significantly. The river was observed to be turbulent, with notable debris, and moving *3with a fast current. However, the officers observed no signs of an emergency and could not locate anyone in need of assistance. Each specifically listened for someone yelling, but heard nothing. Both officers ended their investigations, and one officer told dispatch to inform Middletown that someone might be floating down the river toward the Middletown city limits. The dispatcher did as instructed.

{¶ 4} Cody Pressler's body was found four days later along the river bank. However, there is no indication in the record as to when he drowned, when he entered the river, or how he entered the river. Even so, the 9-1-1 dispatcher and one of the two officers who responded were placed on administrative leave with pay for two to three days, but later were allowed to return to work. Police Chief Russ Whitman ordered an internal investigation into the dispatcher's handling of the call and the officers' conduct in responding to the dispatch.

{¶ 5} Cody's mother, Tamra Pressler, filed suit against the city of Franklin, the dispatcher who took the call, as well as the two officers who responded and searched the river area. Pressler alleged that Franklin and the three public employees failed to perform their duties and that such failure caused the death of her son. Franklin filed a motion to dismiss, and Pressler voluntarily dismissed the claims against the city. However, she pursued the claims against the three individual defendants: Dispatcher Peggy Hembree, Lieutenant Gerry Massey, and Officer David Hatfield.

{¶ 6} The three defendants moved for summary judgment, claiming that they were immune from suit. The trial court denied the defendants' motion for summary judgment, finding that genuine issues of material fact remained for litigation. The three defendants now appeal the trial court's decision, raising the following assignment of error.

{¶ 7} THE TRIAL COURT ERRED IN DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT.

{¶ 8} Hembree, Massey, and Hatfield argue in their assignment of error that the trial court erred in not granting their motion for summary judgment because they are immune from suit by virtue of R.C. 2744.03(A)(6).

{¶ 9} Appellate review of a motion for summary judgment is de novo. Lindsay P. v. Towne Properties Asset Mgt. Co. , 12th Dist. Butler No. CA2012-11-215, 2013-Ohio-4124, 2013 WL 5372881, ¶ 16. Civ.R.56 sets forth the summary judgment standard and requires that (1) there be no genuine issues of material fact to be litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds can come to only one conclusion which is adverse to the nonmoving party. Slowey v. Midland Acres, Inc. , 12th Dist. Fayette No. CA2007-08-030, 2008-Ohio-3077, 2008 WL 2486565, ¶ 8. The moving party has the burden of demonstrating that there is no genuine issue of material fact. Harless v. Willis Day Warehousing Co. , 54 Ohio St.2d 64, 375 N.E.2d 46 (1978).

Exception to Immunity

{¶ 10} R.C. 2744.03(A)(6) provides a general grant of immunity to an employee of a political subdivision unless one of the following applies: (1) the employee's acts or omissions were manifestly outside the scope of his employment or official responsibilities, (2) the employee's acts or omissions were performed with malicious purpose, in bad faith, or in a wanton or reckless manner, or (3) civil liability is expressly imposed by statute. Burnell v. Dulle , 169 Ohio App.3d 792, 2006-Ohio-7044, 865 N.E.2d 86, ¶ 21 (12th Dist.).

*4{¶ 11} Pressler's suit alleges that her son's death was the result of the defendants' gross negligence and that the three defendants acted willfully, wantonly, and recklessly in performing their duties. The Ohio Supreme Court has clarified the definitions of "wanton misconduct" and "reckless conduct" in the context of immunity for political subdivision employees:

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. * * *

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Bluebook (online)
2017 Ohio 1408, 90 N.E.3d 1, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pressler-v-city-of-franklin-ohioctapp-2017.