Widen v. County of Pike

932 N.E.2d 929, 187 Ohio App. 3d 510
CourtOhio Court of Appeals
DecidedMay 10, 2010
DocketNo. 09CA794
StatusPublished
Cited by7 cases

This text of 932 N.E.2d 929 (Widen v. County of Pike) 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
Widen v. County of Pike, 932 N.E.2d 929, 187 Ohio App. 3d 510 (Ohio Ct. App. 2010).

Opinion

Kline, Judge.

{¶ 1} Frederick N. Widen, administrator of the estate of Cecil Holbrook Jr., appeals the judgment of the Pike County Court of Common Pleas. Widen sued the county of Pike and Deputy Delbert Slusher after Cecil Holbrook Jr. died in a traffic accident. Deputy Slusher was directing traffic at the intersection where the accident occurred. Because of sovereign immunity, the trial court granted summary judgment in favor of Pike County and Deputy Slusher. On appeal, Widen contends that the trial court erred by granting summary judgment in favor of Pike County because one of the exceptions to sovereign immunity applies. We disagree. Based on the most natural and obvious reading of R.C. 2744.02(B)(3), Deputy Slusher could not have negligently failed to remove an obstruction from the intersection. Therefore, we find that no exception to sovereign immunity applies to Pike County. Widen also contends that the trial court erred by granting summary judgment in favor of Deputy Slusher. We agree. We find that (1) a genuine issue of material fact exists whether Deputy Slusher acted recklessly while directing traffic and (2) a reasonable person could conclude that Deputy Slusher acted recklessly. Therefore, Deputy Slusher is not entitled to immunity as a matter of law. Accordingly, we affirm in part and reverse in part the judgment of the trial court and remand this cause to the trial court for further proceedings consistent with this opinion.

I

{¶ 2} On April 18, 2004, a funeral procession was traveling east on State Route 32 in Pike County, Ohio. Deputy Slusher and his patrol car were positioned at the intersection of State Route 32, State Route 220, and Germany Road. At this intersection, State Route 32 is a divided highway with a 60-mile-per-hour speed limit. It runs, generally, in an east-west direction. In contrast, State Route 220 is a two-lane road that runs, generally, in a north-south direction. State Route 220 turns into Germany Road as it runs south across State Route 32 (conversely, Germany Road turns into State Route 32 as it runs north across the intersection). Traffic signals at this intersection flashed yellow for the traffic on State Route 32 and flashed red for the traffic on State Route 220/Germany Road. There were also stop signs and divided highway signs for the traffic traveling on State Route 220/Germany Road across State Route 32.

{¶ 3} The funeral was proceeding east on State Route 32 and turning south (right) onto Germany Road. During the procession, Deputy Slusher began directing traffic into the intersection. There were at least three vehicles stopped [514]*514at the northern point of the intersection, that is, headed south on State Route 220 and stopped at State Route 32. The first vehicle in line was a motorcycle. Cecil was driving the second vehicle in line, which was a gray Chevrolet Cavalier convertible. Cecil’s wife, Francine Holbrook, was a passenger in the Cavalier. James and Rita Smith were in the vehicle immediately behind the Holbrooks.

{¶ 4} Deputy Slusher started directing these vehicles into the intersection, across State Route 32 West, and left onto State Route 32 East. Deputy Slusher motioned for the motorcycle to proceed, and the motorcycle made it safely onto State Route 32. Next, Cecil pulled into the intersection. (There is some dispute as to whether Deputy Slusher (1) motioned for Cecil to proceed, (2) motioned for Cecil to stop, or (3) directed traffic in a dangerously ambiguous manner.) At the same time that Cecil pulled into the intersection, Janice Mould was traveling west on State Route 32 in her Chevrolet Trailblazer. Mould crashed into Cecil’s Cavalier, and Cecil died as a result of the crash.

{¶ 5} On April 12, 2006, Widen, as the administrator of Cecil’s estate, filed suit against Pike County, Ohio, Deputy Slusher, and Mould.1 Later, the trial court consolidated Widen’s case with Francine’s own case against various defendants, including both Pike County and Deputy Slusher.

{¶ 6} On April 4, 2008, Pike County and Deputy Slusher moved for summary judgment with regard to all claims in the consolidated cases. (In addition to Widen and Francine, Mould also asserted claims against Pike County and Deputy Slusher.) In a February 19, 2009 decision, the trial court granted summary judgment in favor of Pike County and Deputy Slusher as to all claims. The trial court found that sovereign immunity applied to both Pike County, as a political subdivision, and Deputy Slusher, as the employee of a political subdivision.

{¶ 7} The trial court further found that there was “no just reason for delay,” and Widen filed this timely appeal. He asserts the following two assignments of error: “I. The trial court committed reversible error when it granted summary judgment because the political subdivision defendants negligently failed to keep the intersection of SR 32 and SR 220 free from obstruction,” and “II. The trial court committed reversible error when it granted summary judgment in favor of [515]*515Deputy Slusher because genuine issues of material fact exists [sic] with respect to his recklessness.”

II

{¶ 8} In his first assignment of error, Widen argues that the trial court should not have granted summary judgment in favor of Pike County because an exception to sovereign immunity applies. Specifically, Widen contends that his case should proceed against Pike County because of R.C. 2744.02(B)(3).

A. Summary-Judgment Standard

{¶ 9} “Because this case was decided upon summary judgment, we review this matter de novo, governed by the standard set forth in Civ.R. 56.” Comer v. Risko, 106 Ohio St.3d 185, 2005-Ohio-4559, 833 N.E.2d 712, ¶ 8. Summary judgment is appropriate only when the following have been established: (1) there is no genuine issue as to any material fact, (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds can come to only one conclusion, and that.conclusion is adverse to the nonmoving party. Civ.R. 56(C). See also Bostic v. Connor (1988), 37 Ohio St.3d 144, 146, 524 N.E.2d 881; Grimes v. Grimes, Washington App. No. 08CA35, 2009-Ohio-3126, 2009 WL 1830761, ¶ 14. In ruling on a motion for summary judgment, the court must construe the record and all inferences that arise from it in the opposing party’s favor. Doe v. First United Methodist Church (1994), 68 Ohio St.3d 531, 535, 629 N.E.2d 402.

{¶ 10} The burden of showing that no genuine issue of material fact exists falls upon the party who moves for summary judgment. Dresher v. Burt (1996), 75 Ohio St.3d 280, 294, 662 N.E.2d 264. However, once the movant supports his or her motion with appropriate evidentiary materials, the nonmoving party “may not rest upon the mere allegations or denials of the party’s pleadings, but the party’s response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.” Civ.R. 56(E). See also Dresher at 294-295, 662 N.E.2d 264; Grimes at ¶ 15.

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Bluebook (online)
932 N.E.2d 929, 187 Ohio App. 3d 510, Counsel Stack Legal Research, https://law.counselstack.com/opinion/widen-v-county-of-pike-ohioctapp-2010.