[Cite as Seege v. Smith, 2014-Ohio-5450.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
DONNA SEEGE
Plaintiff-Appellant
v.
CHRISTOPHER B. SMITH, et al.
Defendants-Appellees
Appellate Case No. 26210
Trial Court Case No. 2012-CV-6782
(Civil Appeal from (Common Pleas Court) ...........
OPINION
Rendered on the 12th day of December, 2014.
...........
DWIGHT BRANNON, Atty. Reg. No. 0021657, DOUGLAS D. BRANNON, Atty. Reg. No. 0076603, MATTHEW C. SCHULTZ, Atty. Reg. No. 0080142, 130 West Second Street, Suite 900, Dayton, Ohio 45402 Attorneys for Plaintiff-Appellant-Donna Seege
NEIL F. FREUND, Atty. Reg No. 0012183, LEONARD J. BAZELAK, Atty. Reg. No. 0064023, 1 South Main Street, Suite 1800, Dayton, Ohio 45402, JOHN J. DANISH, Atty. Reg. No. 0046639, JOHN C. MUSTO, Atty. Reg. No. 0071512, 101 West Third Street, P.O. Box 22, Dayton, Ohio 45401 Attorneys for Defendant-Appellee-Christopher B. Smith 2
Attorneys for Defendant Appellee-City of Dayton
TODD SMITH, Atty. Reg. No. 0076794, 6047 Frantz Road, Suite 203, Dublin, Ohio 43017 Attorney for Defendants-Appellees-AARP and United Healthcare Services, Inc.
MARGARET SCHUTTE, Atty. Reg. No. 0078968, 200 West Second Street, Suite 200, Dayton, Ohio 45402 Attorney for Defendant-Appellee-U.S. Department of Health and Human Services
.............
WELBAUM, J.
{¶ 1} In this case, Plaintiff-Appellant, Donna Seege, appeals from a summary
judgment rendered in favor of Defendants-Appellees, Christopher Smith and the City of Dayton,
on grounds of their statutory immunity under R.C. Chap. 2744. Seege contends that Appellees
were not entitled to statutory immunity for an auto accident involving Smith and Seege.
According to Seege, Smith was not on an emergency call at the time of the accident, and Smith
was also acting in a wanton and reckless manner when his police cruiser collided with Seege’s
wheelchair.
{¶ 2} We conclude that the trial court did not err in rendering summary judgment on
behalf of Appellees. The undisputed facts, construed most strongly in Appellant’s favor,
indicate that Smith was on an emergency call (statutorily defined as a call to duty) and did not act
in a wanton or reckless manner when his cruiser struck Seege’s wheelchair. Accordingly, the
judgment of the trial court will be affirmed.
I. Facts and Course of Proceedings
{¶ 3} On April 12, 2011, Donna Seege left her apartment on Third Street in Dayton, 3
Ohio, to go to a nearby General Dollar store. Seege had multiple sclerosis, and used a motorized
wheelchair to travel to the store. Seege left from the back entrance of her building, went down
an alley, and went across a church parking lot to West Second Street, where there was an
unmarked crosswalk. After looking both ways, Seege began to travel across the intersection of
James H. McGee Boulevard and West Second Street. Once she arrived at the other side of
James H. McGee Boulevard, she intended to travel one block south to West Third Street, where
the store was located.
{¶ 4} Around the same time, Dayton Police Officer, Christopher Smith, was on patrol
in the area, driving a 2004 Ford Crown Victoria cruiser. Smith frequently patrolled in the area
of West Second Street and James H. McGee Boulevard, and was aware there was an unmarked
crosswalk at the intersection. Shortly before the accident, Smith received a dispatch telling him
to respond to a traffic crash at North James H. McGee Boulevard and Bridge Street. Smith
described this as a non-emergency call, because another officer was already at the scene. In
addition, there were no injuries. Smith did not activate his lights and sirens, which he would use
in an emergency situation. Smith also indicated that in non-emergency situations, police officers
must follow the same traffic rules and laws as ordinary citizens.
{¶ 5} When Smith received the dispatch, he was near Stewart Street. He traveled to
Interstate 75, went northbound, and took the westbound exit to South James H. McGee
Boulevard. Smith then traveled northbound on James H. McGee Boulevard. The speed limit
was 40 miles per hour. Smith encountered a green light at the intersection of James H. McGee
Boulevard and West Third Street, which was a block south of the intersection where Seege was
attempting to cross. Traffic was moderate to heavy, and there were no cars ahead of Smith as he 4
proceeded through the intersection. At that point, James H. McGee Boulevard consisted of two
lanes in each direction, with a turn lane, and Smith was in the left northbound lane. Smith stated
that he was looking straight ahead and did not see any traffic ahead, either vehicular or
pedestrian.
{¶ 6} The black box in the cruiser indicated that Smith's speed was 45 or 46 miles per
hour at 11 seconds before the collision, and about 41.5 miles at the time the brakes were applied.
As Smith got close to the intersection of Second and James H. McGee, he glanced to the left at
the All in One parking lot, which was located on the northwest side of the intersection. Smith
stated that he does this habitually when he passes stores, to look for any type of drug activity,
fights, robberies, or disturbances. Smith’s initial accounts to the police indicated that he looked
to his left for four to five seconds. However, at his deposition, Smith stated that he believed he
had looked to the left only for one to three seconds.
{¶ 7} Once Smith arrived at the intersection, he saw, in his peripheral vision, a
motorized wheelchair moving from the east to his west. He slammed on his brakes, but still
struck the wheelchair with the left front bumper of his cruiser. Smith's airbag deployed as a
result of the collision. The wheelchair was in the unmarked crosswalk when it was struck, and
the point of impact was on the south side of the intersection, in the left-hand lane. Seege was
thrown off the wheelchair and landed to the left of the cruiser. The wheelchair ended up going to
the left, toward the center divider and the empty southbound lane of travel.
{¶ 8} Seege was taken to the hospital, where she remained for a month, with
significant injuries. In September 2012, Seege filed suit against Smith and the City of Dayton,
alleging that Smith had negligently, willfully, wantonly, and recklessly failed to yield the right of 5
way as required by R.C. 4511.46(A). After both sides filed motions for summary judgment, the
trial court granted Appellees' motion and denied Seege's motion. The court held that statutory
immunity applied because Smith was on a call to duty, and his conduct was neither willful nor
wanton. The court also found that Smith was entitled to individual immunity under R.C.
2744.03(A) because there was no evidence that he was acting recklessly. Seege appeals from
the judgment rendered in favor of Appellees.
II. Did the Trial Court Err in Rendering Summary Judgment in Appellees' Favor?
{¶ 9} Seege's sole assignment of error states that:
The Trial Court Erred in Granting Summary Judgment to
Defendants-Appellees Officer Christopher Smith and the City of Dayton.
{¶ 10} Under this assignment of error, Seege first contends that Officer Smith was not
responding to an emergency call for purposes of statutory immunity, and that the trial court
interpreted the term “emergency call” too expansively.
{¶ 11} It is well-established that “[a] trial court may grant a moving party summary
judgment pursuant to Civ. R. 56 if there are no genuine issues of material fact remaining to be
litigated, the moving party is entitled to judgment as a matter of law, and reasonable minds can
come to only one conclusion, and that conclusion is adverse to the nonmoving party, who is
entitled to have the evidence construed most strongly in his favor.” (Citation omitted.) Smith v.
Five Rivers MetroParks, 134 Ohio App.3d 754, 760, 732 N.E.2d 422 (2d Dist.1999). “We
review decisions granting summary judgment de novo, which means that we apply the same
standards as the trial court.” (Citations omitted.) GNFH, Inc. v. W. Am. Ins. Co., 172 Ohio 6
App.3d 127, 2007-Ohio-2722, 873 N.E.2d 345, ¶ 16 (2d Dist.). With these standards in mind,
we will consider Seege's claims.
{¶ 12} As a general rule, R.C. 2744.02(A)(1) exempts political subdivisions from
liability for injuries caused by the acts of the political subdivisions or their employees.
Specifically, R.C. 2744.02(A)(1) provides that “[e]xcept as provided in division (B) of this
section, a political subdivision is not liable in damages in a civil action for injury, death, or loss
to person or property allegedly caused by any act or omission of the political subdivision or an
employee of the political subdivision in connection with a governmental or proprietary function.”
{¶ 13} Consistent with this exception, R.C. 2744.02(B)(1) states that 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.” However, R.C. 2744.02(B)(1)(a) goes on to grant a
full defense to this liability when “[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} In Colbert v. Cleveland, 99 Ohio St.3d 215, 2003-Ohio-3319, 790 N.E.2d 781,
the Supreme Court of Ohio interpreted the meaning of an “emergency call” as used in R.C.
2744.01(B)(1)(a). Id. at ¶ 1. In its decision, the court rejected the idea that an emergency call
“must involve an inherently dangerous situation.” Id. at ¶ 2. Instead, the court held that an
emergency call only “requires a ‘call to duty.’ ” Id.
{¶ 15} When considering this issue, the court first reviewed the words in the statute, 7
which specifically states that “ ‘emergency call’ means ‘a call to duty.’ ” (Emphasis in original.)
Id. at ¶ 13, quoting R.C. 2744.01(A). The court noted that “ ‘[d]uty’ is defined as ‘obligatory
tasks, conduct, service, or functions enjoined by order or usage according to rank, occupation, or
profession.’ Thus, a ‘call to duty’ involves a situation to which a response by a peace officer is
required by the officer's professional obligation.” Id., quoting Webster's Third New
International Dictionary (1986) 705. The court then stated that:
Following the term “call to duty,” R.C. 2744.01(A) continues with the
phrase “including, but not limited to, communications from citizens, police
dispatches, and personal observations by peace officers of inherently dangerous
situations that demand an immediate response on the part of a peace officer.”
(Emphasis added.) The phrase “including, but not limited to,” “ ‘indicates that
what follows is a nonexhaustive list of examples.’ ” (Emphasis added.) State v.
Thompson (2001), 92 Ohio St.3d 584, 588, 752 N.E.2d 276, quoting State v.
Lozano (2001), 90 Ohio St.3d 560, 562, 740 N.E.2d 273. Examples are typically
intended to provide illustrations of a term defined in the statute, but do not act as
limitations on that term. Moreover, of the three examples listed in R.C.
2744.01(A), only the third example, “personal observations by peace officers of
inherently dangerous situations that demand an immediate response on the part of
a peace officer,” refers to a dangerous situation, thereby indicating that the other
listed examples need not involve an inherently dangerous situation. Therefore, we
find that the phrase “inherently dangerous situations” places no limitation on the
term “call to duty.” 8
Had the General Assembly intended to limit an emergency call to only
those situations that were inherently dangerous, it could have expressly imposed
that limitation. Because no such limiting language exists in R.C. 2744.01(A), we
will not add it by judicial fiat. Accordingly, we hold that an “emergency call” as
defined in R.C. 2744.01(A) involves a situation to which a response by a peace
officer is required by the officer's professional obligation.
Colbert at ¶ 14-15.
{¶ 16} The trial court relied on this interpretation in finding that Smith was on an
emergency call under R.C. Chap. 2744, i.e., he was responding to a call to duty because he “was
fulfilling his professional obligation when the unfortunate accident occurred.” Doc. #71, p. 6.
{¶ 17} Seege argues that even under Colbert’s interpretation, not every professional
duty performed by a police officer while operating a motor vehicle can constitute an emergency
call for purposes of the statute. According to Seege, the use of the word “emergency” in R.C.
2744.01(A) implies that an officer must be responding to a sudden or unexpected occasion for
action or a pressing necessity, in order for the statute to apply. Seege also distinguishes Colbert,
since it involved police officers who had witnessed a drug deal and gave chase. See Colbert, 99
Ohio St.3d 215, 2003-Ohio-3319, 790 N.E.2d 781, at ¶ 3. In addition, Seege places reliance on
Smith’s admission that he was acting on a non-emergency basis.
{¶ 18} As an initial matter, Smith’s characterization of his status is irrelevant. The
Supreme Court of Ohio rejected the idea of such an “admission” in Smith v. McBride, 130 Ohio
St.3d 51, 2011-Ohio-4674, 955 N.E.2d 954, ¶ 44, fn. 5. In this regard, the court observed that:
Smith implies that Carpenter's statement that he was not on an emergency run 9
should equate to an admission that he was not on an emergency call for R.C.
Chapter 2744 purposes. However, an emergency run pursuant to the police
department's protocols and an emergency call for purposes of statutory immunity
are different. For purposes of evaluating whether immunity attaches, even when
an officer is not on an emergency run, he may still be responding to a call to duty
and thus be acting under a professional obligation to respond. See Colbert, 99
Ohio St.3d 215, 2003-Ohio-3319, 790 N.E.2d 781, at the syllabus.
Smith at ¶ 44, fn. 5.
{¶ 19} In support of her position, Seege cites a number of cases in which courts have
either found conflicts in evidence concerning whether an officer was responding to an emergency
call, or have found that officers may perform functions that involve operation of a cruiser, but
may not be on an “emergency call.”
{¶ 20} For example, in Malone v. Torres, 8th Dist. Cuyahoga No. 92878,
2010-Ohio-157, the court of appeals found that summary judgment on immunity had been
properly denied due to conflicting evidence about whether an emergency call existed. Id. at ¶
15. The court first distinguished “the traffic violations, i.e., speeding and improper lane
changing, in the case at bar * * * from high-crime area drug deal observation and necessary
stealth pursuit in Colbert.” Id. at ¶ 19. In this regard, the court stressed that:
It is questionable that speeding or improper lane changing, without personal
observation of more serious crimes, is worth putting citizens' lives at risk.
Therefore, allowing immunity in a situation where officers failed to use their
lights and sirens or even make a dispatch call to the police station before racing 10
through an intersection against the light becomes a question of fact.
Malone at ¶ 19.
{¶ 21} The court of appeals then went on to find that there were factual issues
precluding summary judgment in the city’s favor. In particular, the court focused on the
officers’ failure to follow procedure, failure to notify anyone of their alleged vehicle chase, and
“self-serving” testimony. Id. at ¶ 7 and 26. The court also noted that the victims, who were
struck by the police cruiser, testified that no vehicle had traveled through the intersection
immediately before the accident. This contrasted with the officers’ testimony that they had been
chasing a vehicle through the intersection. Id. at ¶ 22. There were also factual issues with
regard to whether the officers had activated the lights and sirens on their cruiser before colliding
with the victims’ automobile. Id.
{¶ 22} Similarly, in Baker v. Cleveland, 8th Dist. Cuyahoga No. 93952,
2010-Ohio- 5588, the court of appeals concluded that the trial court did not err in denying a city’s
motion for directed verdict on the immunity issue. Id. at ¶ 26. The court noted conflicting
testimony and credibility issues about whether the officer was responding to a call to duty (a
property damage accident that the officer had not notified dispatch about) or whether he was
traveling to a parade assignment, which had been conceded by the city as a non-emergency
situation. Id. at ¶ 23-25.
{¶ 23} In yet another case cited by Seege, the court of appeals concluded that
reasonable minds could differ regarding whether an officer was responding to a “call to duty,”
i.e., “required by his professional obligation to respond to the call,” under Colbert. See Brown v.
Cuyahoga Falls, 9th Dist. Summit No. 24914, 2010-Ohio-4330, ¶ 16. In Brown, the officer did 11
not observe any illegal activity and was not dispatched to a crime scene. Instead, he unilaterally
elected to respond to a dispatch and did not respond to the radio transmission about the alleged
crime. Id. at ¶ 15.
{¶ 24} These types of factors are absent in the case before us. There is no factual
dispute about what occurred. Unlike the officers in Malone, Baker, and Brown, Smith had been
dispatched to a traffic accident and was responding to that dispatch at the time his vehicle
collided with Seege’s wheelchair.
{¶ 25} We do agree with Seege to the extent that not every function performed by a
police officer may fit within the definition of an emergency call. In Burnell v. Dulle, 169 Ohio
App.3d 792, 795-796, 2006-Ohio-7044, 865 N.E.2d 86 (12th Dist), the court of appeals
concluded that a deputy who ran over a pedestrian’s foot in a courthouse parking lot was not on
an emergency call for purposes of R.C. 2744.01(A). Id. at ¶ 3 and 15-16. At the time, the
officer was driving to court to testify in response to a subpoena. Id. at ¶ 2.
{¶ 26} In rejecting immunity, the court of appeals stated that:
The fact that Deputy Dulle was an on-duty police officer driving to court
to testify at the time of the incident does not make this an emergency call. We
recognize that the Ohio Supreme Court held that an “emergency call” is not
limited to inherently dangerous situations that demand an immediate response.
See Colbert v. Cleveland, 99 Ohio St.3d 215, 2003-Ohio-3319, 790 N.E.2d 781, ¶
11–15. The high court held that an “emergency call” as defined in R.C.
2744.01(A) “involves a situation to which a response by a peace officer is
required by the officer's professional obligation.” Id. at ¶ 15. But we do not find 12
that the Colbert court's analysis requires that the phrase “emergency call” be so
broadly construed as to encompass the facts of this case.
It was not Deputy Dulle's professional duty, but his civic duty, to respond
to the subpoena. The fact that the subject matter of his testimony involved the
officer's official duties does not render driving to the city building to testify about
the subject an emergency call. Deputy Dulle's professional obligations were not
engaged while he was driving to the courthouse. Thus, this case is
distinguishable from those cited by Warren County for support of its argument.
See, e.g., Cunningham v. Akron, Summit App. No. 22818, 2006-Ohio-519, 2006
WL 290100; Rutledge v. O'Toole, Cuyahoga App. No. 84843, 2005-Ohio-1010,
2005 WL 563727; Kintyhtt v. Barberton, Summit App. No. 22468,
2005-Ohio-3799, 2005 WL 1763606.
Burnell at ¶ 15-16.
{¶ 27} Seege contends that the trial court interpreted Colbert too expansively, by
interpreting “any” professional responsibility as an emergency call. We disagree. The trial
court properly concluded that Smith was responding to a call to duty because he had been
dispatched to respond to a traffic accident. Colbert and its progeny do not require that the
situation to which an officer is sent be inherently dangerous, or even that the police department
itself classify the situation as an emergency. Unlike the situations in the cited cases, Smith was
responding to a call to duty for purposes of statutory immunity.
{¶ 28} Seege’s next argument is that Smith was acting in a wanton manner. As was
noted, the immunity exception in R.C. 2744.02(B)(1)(a) does not permit immunity even where an 13
officer is responding to an emergency call, if the vehicle’s operation constitutes “willful or
wanton misconduct.” According to Seege, Smith’s conduct in taking his eyes off the road for
four to five seconds and failing to take any measures to avoid pedestrians when he knew they
might use the unmarked crosswalk, was wanton misconduct.
{¶ 29} “[T]he issue of wanton misconduct is normally a jury question.” (Citation
omitted.) Fabrey v. McDonald Village Police Dept., 70 Ohio St.3d 351, 356, 639 N.E.2d 31
(1994). We have noted that “wanton misconduct involves the failure to exercise any care
toward one to whom a duty 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.”
Carder v. Kettering, 2d Dist. Montgomery No. 20219, 2004-Ohio-4260, ¶ 20, citing Hunter v.
Columbus, 139 Ohio App.3d 962, 969, 746 N.E.2d 246 (10th Dist. 2000), and Matkovich v. Penn
Cent. Transp. Co., 69 Ohio St.2d 210, 431 N.E.2d 652 (1982), paragraph two of the syllabus.
{¶ 30} Even accepting Seege’s factual assertions as true, we cannot conclude that
Smith’s actions were wanton. The officer in Carder was traveling at more than 80 miles per
hour in a residential zone, and was traveling uphill in an area that limited his visibility as well as
that of other motorists. Carder at ¶ 24. In contrast, Smith was traveling only a few miles above
the speed limit, in an area where his visibility was not limited. Notably, even in Carder, we did
not find that the officer failed to exercise any care whatsoever and that his actions were wanton
Id. at ¶ 20. Accordingly, we agree with the trial court that Smith’s actions were not wanton. As
a result, the City of Dayton was entitled to statutory immunity under R.C. 2744.02(B)(1)(a) for
the claims asserted by Seege.
{¶ 31} Seege’s final argument is that there are factual issues regarding whether Smith 14
acted recklessly for purposes of his individual immunity under R.C. 2744.03(A)(6). “For claims
against individual employees, the three-tiered analysis used to determine whether a political
subdivision is immune is not used. Instead, R.C. 2744.03(A)(6) provides that an employee is
personally immune from liability unless ‘(a) [t]he employee's acts or omissions were manifestly
outside the scope of the employee's employment or official responsibilities; (b) [t]he employee's
acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner;
[or] (c) [c]ivil liability is expressly imposed upon the employee by a section of the Revised
Code.’ ” (Citations omitted). Lambert v. Clancy, 125 Ohio St.3d 231, 2010-Ohio-1483, 927
N.E.2d 585, ¶ 10. “For these purposes, allegations of negligence are insufficient to overcome
the immunity granted to an employee of a political subdivision who acts within his or her official
duties.” Id., citing Fabrey, 70 Ohio St.3d at 356, 639 N.E.2d 31.
{¶ 32} The relevant exception here is wanton or reckless conduct. We have already
concluded that Smith did not act in a wanton manner, which leaves the issue of Smith’s alleged
recklessness. “ ‘An individual acts “recklessly” when he “does an act or intentionally fails to do
an act which is in 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.” ’ ” Carder, 2d Dist. Montgomery No. 20219,
2004-Ohio-4260, at ¶ 22, quoting Hunter, 139 Ohio App.3d at 969, 746 N.E.2d 246. See also,
Anderson v. Massillon, 134 Ohio St.3d 380, 2012-Ohio-5711, 983 N.E.2d 266, ¶ 34 (noting that
“reckless conduct is characterized by a substantial and unjustifiable risk of harm to others and a
conscious disregard of or indifference to the risk, but the actor does not desire harm”). 15
{¶ 33} In Carder, we concluded that a reasonable juror could find a police officer’s
actions reckless, in view of the officer’s “speed [more than 80 miles per hour in a 35 mile per
hour zone], the limited visibility and the residential character of the area.” Carder at ¶ 25.
Again, those factors are absent in the case before us. Although there were some residences in
the area of James H. McGee Boulevard and West Second Street, the road upon which Smith was
traveling was a busy thoroughfare, with commercial establishments in the area as well. In
addition, Smith’s speed was only slightly in excess of the posted speed, and visibility was not
limited. One might characterize Smith’s actions as negligent, but they do not rise to the level of
recklessness.
{¶ 34} In arguing that Smith’s conduct was reckless, Seege relies on the testimony of
her expert, who stated that Smith’s behavior was “grossly neglectful and reckless.” See
Affidavit of Stuart Nightenhelser, ¶ 12, attached to Doc. # 60. This assertion, however, is
considered an improper legal conclusion that should not be submitted in affidavits used to show
genuine issues of material fact. Fediaczko v. Mahoning Cty. Children Servs., 7th Dist.
Mahoning No. 11 MA 186, 2012-Ohio-6090, ¶ 30. See, also, Pope v. Trotwood Madison City
School Dist. Bd. of Edn., 2d Dist. Montgomery No. 20072, 2004-Ohio-1314, ¶ 17.
{¶ 35} Furthermore, “just because a plaintiff can find an expert to state in an affidavit
that an act was reckless does not mean that there is a genuine issue for trial as to whether the
defendant lost her immunity due to recklessness.” Fediaczko at ¶ 31. “ ‘[A]lthough the
determination of recklessness is typically within the province of the jury, summary judgment is
appropriate in instances where the individual's conduct does not demonstrate a disposition to
perversity.’ ” (Citations omitted.) Lindsey v. Summit Cty. Children Servs. Bd., 9th Dist. 16
Summit No. 24352, 2009-Ohio-2457, ¶ 19, quoting Fields v. Talawanda Bd. of Edn., 12th Dist.
Butler No. CA2008-02-035, 2009-Ohio-431, ¶ 16.
{¶ 36} After reviewing the record, we find no evidence of a disposition to perversity on
Smith’s part, nor do we find a conscious disregard of risk to others. Instead, this unfortunate
accident appears to have been the result of Smith’s momentary inattention to the road. Again,
Smith’s conduct may have been negligent, but it does not rise to the level of recklessness. As a
result, the trial court did not err in concluding that Smith was individually immune for Seege’s
injuries.
{¶ 37} Based on the preceding discussion, Seege’s sole assignment of error is
overruled.
III. Conclusion
{¶ 38} Seege’s sole assignment of error having been overruled, the judgment of the
trial court is affirmed.
HALL, J., concurs.
FROELICH, P.J., concurring:
{¶ 39} Officer Smith had been dispatched to a specific location and had a professional
obligation to respond. He therefore fell within the statutory definition of “emergency call” as
interpreted by The Supreme Court in Colbert. Appellant’s reasoning about the seemingly
self-contradictory meaning of a non-emergency, emergency call would have to, in turn, be
resolved by that same Supreme Court. 17
Copies mailed to:
Dwight Brannon Douglas D. Brannon Matthew C. Schultz Neil F. Freund Leonard J. Bazelak John J. Danish John C. Musto Todd Smith Margaret Schutte Hon. Barbara P. Gorman