Stevenson v. Prettyman

951 N.E.2d 794, 193 Ohio App. 3d 234
CourtOhio Court of Appeals
DecidedFebruary 17, 2011
DocketNo. 94873
StatusPublished
Cited by11 cases

This text of 951 N.E.2d 794 (Stevenson v. Prettyman) 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
Stevenson v. Prettyman, 951 N.E.2d 794, 193 Ohio App. 3d 234 (Ohio Ct. App. 2011).

Opinion

Mary J. Boyle, Judge.

{¶ 1} Defendants-appellants, the city of Cleveland and police officer Roger Prettyman, appeal from a judgment denying their motion for summary judgment on the basis of immunity. They raise two issues on appeal:

{¶2} “[1.] The trial court erred when it denied the city of Cleveland and Officer Roger Prettyman’s motion for summary judgment, thus depriving them of the benefit of their immunity.

{¶ 3} “[2.] The trial court abused its discretion when it denied the city of Cleveland and Officer Roger Prettyman’s motion to strike paragraph 6 of plaintiff’s affidavit and exhibits B, C, D, and E of plaintiffs opposition to summary judgment.”

{¶ 4} Finding merit to their appeal, we reverse the trial court’s judgment.

Procedural History and Factual Background

{¶ 5} Plaintiff-appellee, Breon Stevenson, filed a personal-injury complaint against the city and Officer Prettyman in March 2009, alleging that Officer Prettyman injured her when his patrol car struck the vehicle in which she was a passenger. She claimed that Officer Prettyman was not responding to an emergency call, did not have his lights and siren on, and acted “negligently, recklessly, and/or with willful and wanton disregard for the safety of others.”

{¶ 6} The city and Officer Prettyman moved for summary judgment, arguing that the city was immune under R.C. 2744.02(B)(1)(a) and that Officer Prettyman was immune under R.C. 2744.03(A)(6).

[238]*238{¶ 7} Officer Prettyman averred that on April 3, 2007, while he was transporting a prisoner to the hospital for medical treatment, he was traveling south on East 30th Street when he came to a flashing red light at Prospect Avenue. He said that he stopped at the light, did not observe any other vehicles near the intersection, and “then proceeded with caution into the intersection.” When he did, he was “struck by a Chevrolet Suburban driven by Tivanni Taylor.”

{¶ 8} Stevenson opposed the city’s summary-judgment motion. She abandoned her claim that Officer Prettyman was not responding to an emergency call, but maintained that the city and Officer Prettyman were not immune because genuine issues of material fact remained as to whether Officer Prettyman operated his patrol car in a wanton and reckless manner.

{¶ 9} Stevenson stated in her affidavit, which was attached to her brief in opposition, that she was a passenger in a vehicle traveling east on Prospect Avenue. As her vehicle proceeded through the intersection at East 30th Street, where there was a flashing yellow light, it was struck by Officer Prettyman’s patrol car. Stevenson further averred that Officer Prettyman did not stop his patrol car at the red flashing light at the intersection and that he admitted to her that the accident was his fault.

{¶ 10} The trial court denied the defendants’ summary-judgment motion, finding that issues of fact existed with respect to whether Officer Prettyman’s “actions constituted wanton conduct under R.C. 2744.02(B)(1) and R.C. 2744.03(A)(6).”

{¶ 11} It is from this judgment that the city and Officer Prettyman appeal. We will address their second assignment of error first for ease of discussion, as it relates to evidence that we cannot consider if we find the trial court should have stricken it.

Motion to Strike

{¶ 12} The city and Officer Prettyman argue that the trial court erred when it denied their motion to strike exhibits that Stevenson attached to her brief in opposition, as well as one paragraph of her affidavit also attached to her opposition brief.

{¶ 13} A trial court’s decision to grant or deny a motion to strike is within its sound discretion and will not be overturned on appeal unless the trial court abused its discretion. Abernethy v. Abernethy, 8th Dist. No. 81675, 2003-Ohio-1528, 2003 WL 1564322, ¶ 7.

{¶ 14} Civ.R. 56(C) provides an exclusive list of materials that a trial court may consider when deciding a motion for summary judgment. Those materials are “pleadings, depositions, answers to interrogatories, written admissions, affidavits, [239]*239transcripts of evidence, and written stipulations of fact.” Civ.R. 56(C). The court may consider documents that are not expressly mentioned in Civ.R. 56(C) if those documents are accompanied by a personal certification that they are genuine and are incorporated by reference in a properly framed affidavit pursuant to Civ.R. 56(E). Draiol v. Cornicelli (1997), 124 Ohio App.3d 562, 569, 706 N.E.2d 849, citing Martin v. Cent. Ohio Trans. Auth. (1990), 70 Ohio App.3d 83, 89, 590 N.E.2d 411.

{¶ 15} According to Civ.R. 56(E), “supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated in the affidavit.” Thus, “affidavits containing opinions * * * must meet the requirements in the Rules of Evidence governing the admissibility of opinions.” Douglass v. Salem Community Hosp., 153 Ohio App.3d 350, 2003-Ohio-4006, 794 N.E.2d 107, ¶ 21, citing Tomlinson v. Cincinnati (1983), 4 Ohio St.3d 66, 4 OBR 155, 446 N.E.2d 454, paragraph one of the syllabus.

A. Stevenson’s Affidavit

{¶ 16} The city and Officer Prettyman argue that the trial court erred by not granting their motion to strike paragraph six of Stevenson’s affidavit, in which she averred that “the force of the impact was so severe that it caused the vehicle she was in to spin out of control and strike a fire hydrant, raised flower bed, landscaping bricks, metal/concrete post and iron fence.”

{¶ 17} They claim that Stevenson is not an expert and therefore “not qualified to render an opinion on the causal link between the movement of her vehicle after impact and the severity of the impact.” We disagree.

{¶ 18} A lay witness, such as Stevenson, may testify in the form of an opinion if that opinion is (1) rationally based on the perception of the witness and (2) helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue. Evid.R. 701. Stevenson was in the vehicle that collided with Officer Prettyman’s car. We cannot say that her statement as to the severity of the impact was not rationally based on her perception of the impact. Further, we cannot say that her opinion did not also help to gain a clearer understanding of her testimony. Thus, the trial court did not abuse its discretion when it denied the city’s and Officer Prettyman’s motion to strike paragraph six of Stevenson’s affidavit.

B. Unverified and Unauthenticated Documents

{¶ 19} The city and Officer Prettyman further contend that the trial court erred when it denied their motion to strike copies of a police report and crash-[240]

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Cite This Page — Counsel Stack

Bluebook (online)
951 N.E.2d 794, 193 Ohio App. 3d 234, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stevenson-v-prettyman-ohioctapp-2011.