Williams v. Shawnee Twp.

2023 Ohio 251

Opinion

[Cite as Williams v. Shawnee Twp., 2023-Ohio-251.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY

DEE DEE WILLIAMS,

PLAINTIFF-APPELLANT, -and- CASE NO. 1-22-34

TIKASHA DAWSON,

PLAINTIFF-APPELLEE,

v. OPINION

SHAWNEE TOWNSHIP, ET AL.,

DEFENDANTS-APPELLEES.

Appeal from Allen County Common Pleas Court Trial Court No. CV 2021 0030

Judgments Affirmed

Date of Decision: January 30, 2023

APPEARANCES:

Jessica M. Bacon for Appellant

Dawn M. Frick and Nathaniel W. Rose for Appellees, Shawnee Township, et al. Case No. 1-22-34

ZIMMERMAN, J.

{¶1} Plaintiff-appellant, Dee Dee Williams (“Williams”), appeals the May 3

and 4, 2022 judgments of the Allen County Court of Common Pleas granting

summary judgment in favor of defendants-appellees, Shawnee Township, the

Shawnee Township Police Department, and Sergeant Adam Hoehn (“Sergeant

Hoehn”), and dismissing her claim against Shawnee Township (along with the

Shawnee Township Police Department) and Sergeant Hoehn. We affirm.

{¶2} This matter stems from an automobile accident on February 25, 2019

between a stolen black Ford Mustang (owned by Steven Sasada (“Sasada”)) and the

vehicle operated by Williams (in which plaintiff-appellee, Tikasha Dawson

(“Dawson”), was a passenger), following a police pursuit of the stolen vehicle by

Sergeant Hoehn. On February 3, 2021, Williams and Dawson (collectively,

“plaintiffs”) filed a complaint in the trial court alleging negligence against Shawnee

Township, the Shawnee Township Police Department, Sergeant Hoehn, and Sasada.

The plaintiffs’ complaint further alleged claims of negligent misrepresentation and

negligent procurement of insurance against Acceptance Insurance Company and

Acceptance Insurance Agency (collectively, “Acceptance Insurance”). Acceptance

Insurance filed its answer on March 12, 2021.

{¶3} Because neither Shawnee Township nor the Shawnee Township Police

Department timely filed an answer to the plaintiffs’ complaint, the plaintiffs filed a

-2- Case No. 1-22-34

motion for default judgment on April 13, 2021. However, Shawnee Township, the

Shawnee Township Police Department, and Sergeant Hoehn filed a motion for leave

to file an answer instanter under Civ.R. 6(B)(2) on April 19, 2021, which the trial

court granted the next day. As a result, the plaintiffs withdrew their motion for

default judgment.

{¶4} Sasada filed his answer on May 20, 2021. On June 10, 2021, Sasada

filed a motion for a judgment on the pleadings under Civ.R. 12(C). The plaintiffs

filed a memorandum in opposition to Sasada’s motion on June 29, 2021. On June

30, 2021, the trial court granted Sasada’s motion for a judgment on the pleadings

under Civ.R. 12(C) and dismissed the plaintiffs’ claim against Sasada with

prejudice.

{¶5} On March 29, 2022, Shawnee Township, the Shawnee Township Police

Department, and Sergeant Hoehn filed a motion for summary judgment. In their

motion for summary judgment, Shawnee Township (along with the Shawnee

Township Police Department) alleged that it benefits from political-subdivision

immunity under R.C. 2744.02(B)(1)(a) because Sergeant Hoehn did not operate its

motor vehicle (while responding to an emergency call) using willful or wanton

misconduct. Likewise, Sergeant Hoehn argued that summary judgment is proper as

to him because there is no genuine issue of material fact that he is entitled to

statutory immunity under R.C. 2744.03(A)(6). Importantly, even though the trial

-3- Case No. 1-22-34

court provided the plaintiffs an extension of time to respond to Shawnee Township,

the Shawnee Township Police Department, and Sergeant Hoehn’s motion for

summary judgment, the plaintiffs did not timely respond.

{¶6} Consequently, on May 3, 2022, the trial court granted summary

judgment in favor of Shawnee Township (including the Shawnee Township Police

Department) after concluding that that it was entitled to political-subdivision

immunity under R.C. 2744.02(B)(1)(a) because the plaintiffs “failed to demonstrate

the existence of a genuine issue of [material] fact as to whether [Sergeant] Hoehn’s

operation of his police cruiser during the pursuit constituted willful or wanton

misconduct.” (Doc. No. 59). Moreover, the trial court granted summary judgment

in favor of Sergeant Hoehn after concluding that there is no genuine issue of material

fact that he is entitled to statutory immunity under R.C. 2744.03(A)(6).

Significantly, since the plaintiffs’ claims against Acceptance Insurance remained

pending, the trial court certified that there is no just reason for delay under Civ.R.

54(B).

{¶7} Nevertheless, that same day, the plaintiffs filed their memorandum in

opposition to Shawnee Township, the Shawnee Township Police Department, and

Sergeant Hoehn’s motion for summary judgment. As a result, the plaintiffs filed a

motion for reconsideration of the trial court’s decision granting summary judgment

in favor of Shawnee Township (including the Shawnee Township Police

-4- Case No. 1-22-34

Department) and Sergeant Hoehn. On May 4, 2022, out of an “overabundance of

fairness,” the trial court reconsidered its decision granting summary judgment in

favor Shawnee Township (including the Shawnee Township Police Department)

and Sergeant Hoehn, yet reached the same result (even after considering the

plaintiffs’ memorandum in opposition to Shawnee Township, the Shawnee

Township Police Department, and Sergeant Hoehn’s motion for summary

judgment). (Doc. No. 63). Since the trial court disposed of the plaintiffs’ claims

against Acceptance Insurance in a separate entry, the trial court certified that there

is no just reason for delay under Civ.R. 54(B).

{¶8} Williams filed her notice of appeal on May 27, 2022. She raises one

assignment of error for our review.

Assignment of Error

The Trial Court improperly granted summary judgment in favor of Shawnee Township Police Dept [sic] and Sergeant Hoehn where Plaintiffs presented evidence that Sargent Hoehn operated a motor vehicle in a willful, wanton, and/or illegal (reckless) manner and is not entitled to immunity.

{¶9} In her sole assignment of error, Williams argues that the trial court erred

by granting summary judgment in favor of Shawnee Township (along with the

Shawnee Township Police Department) and Sergeant Hoehn because there are

genuine issues of material fact they are excluded from political-subdivision

immunity. Specifically, Williams argues that there are genuine issues of material

-5- Case No. 1-22-34

fact that Shawnee Township (along with the Shawnee Township Police Department)

is excepted from its political-subdivision immunity under R.C. 2744.02(B)(1).

Furthermore, Williams argues that there are genuine issues of material fact that

Sergeant Hoehn is disqualified from statutory immunity under R.C. 2744.03(A)(6).

Standard of Review

{¶10} We review a decision to grant summary judgment de novo. Doe v.

Shaffer, 90 Ohio St.3d 388, 390 (2000). “De novo review is independent and

without deference to the trial court’s determination.” ISHA, Inc. v. Risser, 3d Dist.

Allen No. 1-12-47, 2013-Ohio-2149, ¶ 25, citing Costner Consulting Co. v. U.S.

Bancorp, 195 Ohio App.3d 477, 2011-Ohio-3822, ¶ 10 (10th Dist.). Summary

judgment is proper where there is no genuine issue of material fact, the moving party

is entitled to judgment as a matter of law, and reasonable minds can reach but one

conclusion when viewing the evidence in favor of the non-moving party, and the

conclusion is adverse to the non-moving party. Civ.R. 56(C); State ex rel. Cassels

v. Dayton City School Dist. Bd. of Edn., 69 Ohio St.3d 217, 219 (1994).

{¶11} “The party moving for summary judgment has the initial burden of

producing some evidence which demonstrates the lack of a genuine issue of material

fact.” Carnes v. Siferd, 3d Dist. Allen No. 1-10-88, 2011-Ohio-4467, ¶ 13, citing

Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996). “In doing so, the moving party is

not required to produce any affirmative evidence, but must identify those portions

-6- Case No. 1-22-34

of the record which affirmatively support his argument.” Id., citing Dresher at 292.

“The nonmoving party must then rebut with specific facts showing the existence of

a genuine triable issue; he may not rest on the mere allegations or denials of his

pleadings.” Id., citing Dresher at 292 and Civ.R. 56(E).

Analysis

{¶12} As an initial matter, Williams named the Shawnee Township Police

Department as a defendant. As a department of Shawnee Township, which is also

a named defendant, “the police department is not sui juris and cannot be sued as a

separate entity.” Brady v. Bucyrus Police Dept., 194 Ohio App.3d 574, 2011-Ohio-

2460, ¶ 19 (3d Dist.). Thus, the Shawnee Township Police Department is subsumed

within any judgment relating to the township. Accord id. Therefore, our review is

limited to whether the trial court erred by granting summary judgment in favor of

Shawnee Township and Sergeant Hoehn. See id.

{¶13} “‘R.C. Chapter 2744 addresses when political subdivisions, their

departments and agencies, and their employees are immune from liability for their

actions.’” Green v. Columbus, 10th Dist. Franklin No. 15AP-602, 2016-Ohio-826,

¶ 17, quoting Gibbs v. Columbus Metro. Hous. Auth., 10th Dist. Franklin No. 11AP-

711, 2012-Ohio-2271, ¶ 8. Therefore, we will begin our analysis by addressing

Shawnee Township’s political-subdivision immunity under R.C. 2744.02(B)(1).

-7- Case No. 1-22-34

Then, we will address Sergeant Hoehn’s statutory immunity under R.C.

2744.03(A)(6).

Shawnee Township

{¶14} “The statutory framework requires courts to employ a three-tier

analysis to determine whether a political subdivision is entitled to immunity under

R.C. 2744.02.” Id. “The first tier of the sovereign-immunity analysis involves the

general grant of immunity to political subdivisions by R.C. 2744.02(A)(1) * * * .”

McConnell v. Dudley, 158 Ohio St.3d 388, 2019-Ohio-4740, ¶ 21. “Under the first

tier, a court must determine whether the entity claiming immunity is a political

subdivision and whether the alleged harm occurred in connection with either a

governmental or a proprietary function.” Deitz v. Harshbarger, 3d Dist. Shelby No.

17-16-21, 2017-Ohio-2917, ¶ 19, citing Cramer v. Auglaize Acres, 113 Ohio St.3d

266, 2007-Ohio-1946, ¶ 14 and R.C. 2744.02(A)(1). “Although political

subdivisions are generally immune from liability incurred in performing a

governmental or proprietary function, that immunity is not absolute.” Id., citing

Cramer at ¶ 14 and R.C. 2744.02(B).

{¶15} “The second tier of the sovereign-immunity analysis involves

determining whether any of the five exceptions to immunity that are listed in R.C.

2744.02(B) apply to expose the political subdivision to liability.” McConnell at ¶

22. “In cases involving the alleged negligent operation of a motor vehicle by an

-8- Case No. 1-22-34

employee of a political subdivision, the second tier of the analysis includes

consideration of whether the specific defenses of R.C. 2744.02(B)(1)(a) through (c)

apply to negate the immunity exception of R.C. 2744.02(B)(1).” Smith v. McBride,

130 Ohio St.3d 51, 2011-Ohio-4674, ¶ 14. Importantly, “R.C. 2744.02(B)(1)(a)

provides the political subdivision a ‘full defense’ to 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.’” Carozza v. Lusk, 12th

Dist. Butler No. CA2021-12-155, 2022-Ohio-3272, ¶ 13, quoting R.C.

2744.02(B)(1)(a). “This provision applies ‘when an officer is responding to a call

to duty, which includes responding to a dispatch for assistance out of a professional

obligation to do so.’” McConnell at ¶ 26, quoting Smith at ¶ 40.

{¶16} Finally,

[i]f any one of the five exceptions to immunity in R.C. 2744.02(B) applies and if any defenses that may be asserted by the political subdivision under R.C. 2744.02(B)(1) do not apply, then the third tier of the sovereign-immunity analysis requires a court to determine whether any of the defenses in R.C. 2744.03 apply to reinstate the political subdivision’s immunity.

Id. at ¶ 23.

{¶17} “‘Under the Political Subdivision Tort Liability Act, immunity is an

affirmative defense.’” Deitz, 2017-Ohio-2917, at ¶ 20, quoting Green, 2016-Ohio-

826, at ¶ 18. “‘Accordingly, the burden of proof is on the political subdivision to

-9- Case No. 1-22-34

establish general immunity.’” Id., quoting Green at ¶ 18. Under the first tier of the

political-subdivision-immunity analysis, the parties do not dispute that Shawnee

Township is entitled to general immunity under R.C. 2744.02(A). That is, the

parties agree that the Shawnee Township is a political subdivision and that “the

operation of a police department and the enforcement of the law are governmental

functions.” Harris v. Sutton, 183 Ohio App.3d 616, 2009-Ohio-4033, ¶ 13 (8th

Dist.). See R.C. 2744.01(C)(2) (stating that “[t]he provision * * * of police, fire,

emergency medical, ambulance, and rescue services or protection” is a

governmental function). See also McConnell at ¶ 24 (holding that “operating a

police cruiser in response to an emergency call is a governmental function”).

{¶18} Turning to the second tier of the political-subdivision-immunity

analysis, Williams contends that genuine issues of material fact remain as to whether

the immunity exception under R.C. 2744.02(B)(1) exposes Shawnee Township to

liability. Specifically, Williams advances two theories which she contends negates

the immunity exception under R.C. 2744.02(B)(1). One theory put forth by

Williams is that Shawnee Township is excepted from its political subdivision

liability since it “is liable for their [sic] negligence in the hiring, training, and

supervision of their [sic] patrol officer as well as dispatcher employees.”

(Appellant’s Brief at 12). However, “R.C. 2744.02(B) does not contain an

independent exception to a political subdivision’s immunity under R.C.

-10- Case No. 1-22-34

2744.02(A)(1) for the failure to train, supervise, or enforce its own policies.” Glenn

v. Columbus, 10th Dist. Franklin No. 16AP-15, 2016-Ohio-7011, ¶ 11, citing

DiGiorgio v. Cleveland, 8th Dist. Cuyahoga No. 95945, 2011-Ohio-5878, ¶ 33

(concluding that “there is no exception to [a city’s] immunity for the training,

supervision, or discipline of police officers”).

{¶19} More specifically,

the plain language of the statute demonstrates that the political subdivision’s liability depends on the employee’s actions in driving the vehicle: whether the employee negligently operated the vehicle, whether the employee was within the scope of his or her employment and authority, whether the employee was responding to an emergency call, and whether the employee’s operation of the vehicle constituted willful or wanton misconduct.

(Emphasis sic.) McConnell, 158 Ohio St.3d 388, 2019-Ohio-4740, at ¶ 29. In other

words, “R.C. 2744.02(B)(1)(a) makes plain that it is the driver’s conduct and

culpability in operating a vehicle—not the political subdivision’s—that determines

whether the political subdivision may be held liable under the statute.” Id.

Consequently, this portion of Williams’s argument is without merit.

{¶20} The second theory advanced by Williams is whether the defense set

forth under R.C. 2744.02(B)(1)(a) negates the immunity exception of R.C.

2744.02(B)(1). Specifically, Williams argues that there are genuine issues of

material fact as to whether Sergeant Hoehn was operating a motor vehicle while

-11- Case No. 1-22-34

responding to an emergency call and whether his operation of the police cruiser

constituted wanton misconduct.

{¶21} An emergency call “means a call to duty, 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.” R.C. 2744.01(A). Importantly, “[t]he

statutory definition does not limit ‘emergency calls’ to occasions of inherent danger

or danger to human life.” Shalkhauser v. Medina, 148 Ohio App.3d 41, 2002-Ohio-

222, ¶ 24 (9th Dist.), citing Moore v. Columbus, 98 Ohio App.3d 701, 706 (1994).

Rather, “[a]s defined in R.C. 2744.01(A), [an] ‘emergency call’ involves a situation

to which a response by a peace officer is required by the officer’s professional

obligation.” Colbert v. Cleveland, 99 Ohio St.3d 215, 2003-Ohio-3319, syllabus.

{¶22} Here, there is no genuine issue of material fact that Sergeant Hoehn

was responding to an emergency call—that is, there no genuine issue of material

fact that Sergeant Hoehn was responding to a police dispatch or situation to which

a response was required by his professional obligation. See Anderson v. Westlake,

9th Dist. Lorain No. 19CA011512, 2021-Ohio-4582, ¶ 39; Horton v. Dayton, 53

Ohio App.3d 68, 72 (2d Dist.1988) (embracing that “there seems to be no doubt that

there was a dispatch over the radio that would qualify as an emergency call”).

Significantly, contrary to any suggestion by Williams, there is no requirement under

-12- Case No. 1-22-34

R.C. 2744.02 “‘that the police officers operate their sirens or overhead lights in

order to be deemed to be responding to an ‘emergency call,’ for purposes of

invoking immunity from civil liability.’” Champagne v. Franklin Cty. Sheriff’s

Office, 10th Dist. Franklin No. 17AP-721, 2019-Ohio-1459, ¶ 21, quoting Moore at

709.

{¶23} Furthermore, there is no genuine issue of material fact as to whether

Sergeant Hoehn engaged in wanton misconduct while operating his police cruiser.

“The terms ‘willful’ and ‘wanton’ delineate ‘distinct degrees of care and are not

interchangeable.’” Ibrahim v. Dayton, 2d Dist. Montgomery No. 27699, 2018-

Ohio-1318, ¶ 16, quoting Anderson v. Massillon, 134 Ohio St.3d 380, 2012-Ohio-

5711, ¶ 31. Willful misconduct implies an intentional deviation from a clear duty

or from a definite rule of conduct, a deliberate purpose not to discharge some duty

necessary to safety, or purposefully doing wrongful acts with knowledge or

appreciation of the likelihood of resulting injury.” (Emphasis added.) Massillon at

paragraph two of the syllabus. Similarly, wanton misconduct is defined as “the

failure to exercise any care toward those to whom a duty of care is owed in

circumstances in which there is great probability that harm will result.” (Emphasis

added.) Id. at paragraph three of the syllabus.

{¶24} “Both wanton and willful describes conduct that is greater than

negligence and can be summarized as follows: willful conduct is the intent to harm

-13- Case No. 1-22-34

someone and wanton misconduct is the failure to exercise any care whatsoever.”

Gattrell v. Utica, 5th Dist. Licking No. 15-CA-26, 2016-Ohio-792, ¶ 47, citing

Massillon at ¶ 48. However, because Williams does not challenge the willful-

misconduct element, we will not address it.

{¶25} After reviewing the record in a light most favorable to Williams, there

are no unique facts about the high-speed chase at issue in this case which create a

genuine issue of material fact as to whether Sergeant Hoehn operated his police

cruiser with wanton conduct. Rather, based on the totality of the circumstances of

Sergeant Hoehn’s conduct in the record, we conclude that there is no triable issue

on this element. Importantly, Sergeant Hoehn testified that he exercised some

degree of care throughout the pursuit. Compare Westlake, 2021-Ohio-4582, at ¶ 41,

citing Pendry v. Troy Police Dept., 2d Dist. Montgomery No. 28531, 2020-Ohio-

3129, ¶ 16. See also Glenn, 2016-Ohio-7011, at ¶ 24. Even though Williams

contends that there is an evidentiary dispute as to whether Sergeant Hoehn’s siren

was activated, reasonable minds can conclude only that Sergeant Hoehn did not

operate his cruiser with wanton misconduct. Compare Glenn at ¶ 22 (assessing that

“there are genuine disputes as to whether the electronic siren was on and whether

[the decedent’s] vehicle came to a complete stop as Engine 32 approached.

However, construing the evidence most favorably toward the executor, no

-14- Case No. 1-22-34

reasonable jury could conclude that [the defendant] engaged in wanton misconduct,

that is, that [the defendant] failed to exercise ‘any care’ toward other motorists”).

{¶26} Specifically, Sergeant Hoehn testified that he activated his overhead-

emergency lights; that he did not attempt to force the vehicle off the road; that he

maintained a reasonable distance behind the vehicle; that he slowed his cruiser at

times for the safety of other motorists on the roadway; and that he followed the

Shawnee Township Police Department’s pursuit policy. Accord Westlake at ¶ 41,

citing Pendry at ¶ 16. See also Glenn at ¶ 24. Stated another way, there is no

genuine issue of material fact that Sergeant Hoehn “exercised at least some care in

trying to prevent a vehicle collision” during the pursuit, “and he did not otherwise

engage in extreme conduct that would effectively negate or eliminate the

significance of the care he did exhibit.” Glenn at ¶ 24. Therefore, reasonable minds

can conclude only that Sergeant Hoehn did not operate his cruiser with wanton

conduct.

{¶27} Because we conclude that there is no triable issue on the second

element of Williams’s political-subdivision-immunity claim, we need not proceed

to the third tier of the analysis. See id. at ¶ 43. Accordingly, Shawnee Township is

entitled to political-subdivision immunity under R.C. 2744.02(B)(1).

Consequently, the trial court did not err by granting summary judgment in favor of

Shawnee Township.

-15- Case No. 1-22-34

Sergeant Hoehn

{¶28} Finally, there is no genuine issue of material fact that Sergeant Hoehn

is entitled to immunity under R.C. 2744.03(A)(6). “Immunity is also extended to

individual employees of political subdivisions.” Lambert v. Clancy, 125 Ohio St.3d

231, 2010-Ohio-1483, ¶ 10; R.C. 2744.03(A)(6). “R.C. 2744.03(A)(6) establishes

the framework of analysis for determining whether a political subdivision employee

is entitled to immunity.” Holmes v. Cuyahoga Community College, 8th Dist.

Cuyahoga No. 109548, 2021-Ohio-687, ¶ 38. Specifically,

R.C. 2744.03(A)(6) provides a general grant of immunity to an employee of a political subdivision unless one of the following exceptions applies: (1) the employee’s actions or omissions are manifestly outside the scope of employment or the employee’s official responsibilities, (2) the employee’s acts or omissions were malicious, in bad faith, or wanton or reckless, or (3) liability is expressly imposed upon the employee by a section of the Revised Code.

Plush v. Cincinnati, 1st Dist. Hamilton No. C-200030, 2020-Ohio-6713, ¶ 34. See

also Massillon, 134 Ohio St.3d 380, 2012-Ohio-5711, at ¶ 23 (“In addition, the

legislature expressly removed immunity from employees of a political subdivision

for wanton or reckless conduct in R.C. 2744.03(A)(6)(b).”). “This standard

applies to law-enforcement officers just as it applies to other employees of

political subdivisions.” Westlake, 2021-Ohio-4582, at ¶ 13, quoting Argabrite v.

Neer, 149 Ohio St.3d 349, 2016-Ohio-8374, ¶ 7.

-16- Case No. 1-22-34

{¶29} Importantly, “[f]or 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.” Lambert at ¶ 10. See also

Massillon at ¶ 23 (asserting that “an employee is immune from liability for negligent

acts or omissions”).

{¶30} In this case, Williams argues only that Sergeant Hoehn’s conduct was

wanton or reckless. Therefore, we will review only whether there is a genuine issue

of material fact as to whether Sergeant Hoehn’s conduct was wanton or reckless.

{¶31} As applied under R.C. 2744.03(A)(6)(b), wanton misconduct is

defined as “the failure to exercise any care toward those to whom a duty of care is

owed in circumstances in which there is great probability that harm will result.”

Massillon at paragraph three of the syllabus. Likewise, “[r]eckless conduct 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.” Id. at paragraph four of the syllabus.

To contrast, “negligence is conduct that falls below the reasonable standard of

ordinary care and relates to protecting against foreseeable risks to others” and is

defined as “‘[t]he failure to exercise the standard of care that a reasonably prudent

person would have exercised in a similar situation.’” Id. at ¶ 45 (Lanzinger, J.,

-17- Case No. 1-22-34

concurring in part and dissenting in part), quoting Black’s Law Dictionary 1133 (9th

Ed.2009).

{¶32} Importantly, “wanton conduct is more culpable than reckless” conduct

and both types of conduct exceed negligence. Id. at ¶ 43, 46-47 (Lanzinger, J.,

concurring in part and dissenting in part). In sum, “[t]he goal of the immunity

statute is to protect political subdivisions and their employees from liability for

negligent conduct, but not for conduct exceeding negligence.” (Emphasis added.)

Id. at ¶ 47 (Lanzinger, J., concurring in part and dissenting in part). In other words,

“‘an officer’s mere negligence in the performance of official duties does not give

rise to personal liability.’” Westlake, 2021-Ohio-4582, at ¶ 13, quoting Hoffman v.

Gallia Cty. Sheriff’s Office, 4th Dist. Gallia No. 17CA2, 2017-Ohio-9192, ¶ 37,

citing Fabrey v. McDonald Village Police Dept., 70 Ohio St.3d 351, 357 (1994).

{¶33} Significantly, the Supreme Court of Ohio has professed that “‘[t]hese

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.’” Westlake at ¶ 14, quoting

Argabrite, 149 Ohio St.3d 349, 2016-Ohio-8374, at ¶ 8, citing R.C. 2935.03(A)(1).

“Indeed, no other public employee faces the potential danger, violence, or unique

statutory responsibilities a law-enforcement officer faces.” Id., citing Argabrite at

¶ 15. “We expect law-enforcement officers to protect the public, but that

-18- Case No. 1-22-34

expectation need not obligate those officers to sit idly by while a suspect flees the

scene of a crime, particularly when the suspect’s flight itself endangers the general

public further.” Id., citing Argabrite at ¶ 16. “The officers need not take such a

chance and hope for the best, especially when there exists no way to convey

convincingly to the fleeing suspect that his pursuit has been terminated and he is

free to go, and he may conceivably be just as likely to continue driving recklessly

given the uncertainty surrounding his fate.” Id., citing Scott v. Harris, 550 U.S. 372,

385, 127 S.Ct. 1769 (2007).

{¶34} “Accordingly, the danger of a high-speed chase alone is not enough to

present a genuine issue of material fact as to whether an officer has acted with a

malicious purpose, in bad faith, or in a wanton or reckless manner.” Id. at ¶ 15,

citing Argabrite at ¶ 16, citing Shalkhauser, 148 Ohio App.3d 41, 2002-Ohio-222,

at ¶ 40. Instead, a court may look to other considerations when determining whether

“a law enforcement officer operated a motor vehicle willfully, wantonly, recklessly,

or simply negligently,” which may include:

“(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

-19- Case No. 1-22-34

activated the vehicle’s lights and siren[ ]; and (14) whether the officer violated any applicable departmental policy.

Id., quoting Hoffman at ¶ 49. However, because no one factor is determinative,

courts must consider the totality of the circumstances surrounding the pursuit. Id.,

citing Hoffman at ¶ 49.

{¶35} In this case, Williams argues that genuine issues of material fact

remain as to whether Sergeant Hoehn’s conduct was wanton or reckless.

Specifically, she contends that Sergeant Hoehn acted wantonly or recklessly by

failing to abandon the high-speed pursuit of the stolen black Ford Mustang. In other

words, Williams argues that Sergeant Hoehn “was reckless in assuming an

indifferent attitude toward public safety (i.e. engaging in a high speed pursuit that

posed no benefit to the public’s safety)” because “[t]here is a great probability that

harm will result when an officer drives at a high rate of speed, through fields,

backyards, business laden streets with no regard for speed limits, stop sights or stop

lights.” (Appellant’s Brief at 10).

{¶36} However, based on our review of the record, we conclude that there is

no genuine issue of material fact that Sergeant Hoehn’s conduct was not wanton or

reckless. That is, there is no triable issue as to whether Sergeant Hoehn failed to

exercise any care toward Williams in a circumstance under which there was a great

probability that harm will result. Further, there is no triable issue whether Sergeant

Hoehn disregarded a known or obvious risk of harm to Williams that was

-20- Case No. 1-22-34

unreasonable under the circumstances and the risk of harm was not substantially

greater than negligent conduct.

{¶37} In this case, Sergeant Hoehn stressed that his conduct during the

pursuit was “justified” and that he adhered to the Shawnee Township Police

Department’s policy and procedures during the pursuit. (Nov. 2, 2021 Depo. at 34).

Significantly, even though the underlying allegation was the alleged abduction of

the caller’s grandson—which Williams argues was a misrepresentation of the

circumstances—the alleged abduction nevertheless constituted a serious-felony

offense. See Westlake, 2021-Ohio-4582, at ¶ 30 (“Although the underlying

allegation was the theft of the truck, which Plaintiffs-Appellants stressed is merely

a non-violent property offense, it was still a serious felony offense.”).

{¶38} Further, to the extent that Williams argues that Sergeant Hoehn’s

failure to pursue “a safer alternative” creates a genuine issue of material fact that

Sergeant Hoehn’s conduct was wanton or reckless (since the caller’s grandson was

not a child and he willingly went with the other miscreants in the stolen black Ford

Mustang), such argument is specious. That is, “officers are not required to always

allow suspected felons to avoid apprehension simply by fleeing—relying instead on

the hope of his capture sometime in the future—especially when the suspect’s flight

endangers the general public further.” Id., citing Argabrite, 149 Ohio St.3d 349,

2016-Ohio-8374, at ¶ 16 and Scott, 550 U.S. at 385. “Contrarily, law-enforcement

-21- Case No. 1-22-34

officers have a duty to apprehend reckless motorists who make the roads dangerous

to others.” Id., citing Shalkhauser, 148 Ohio App.3d, 2002-Ohio-222, at ¶ 25.

{¶39} Indeed, Sergeant Hoehn testified that he was dispatched to 1350 West

Shore Drive in Lima, Ohio on February 25, 2019 at approximately 5:35 a.m. in

response to a report that two “white males had taken [the caller’s] grandson.” (Id.

at 14). While proceeding to that residence, he identified “a vehicle matching the

description” of the vehicle—the black Ford Mustang—provided by the caller at an

intersection “very close to the West Shore address.” (Id. at 15). Consequently,

Sergeant Hoehn activated his overhead lights to initiate a traffic stop of the black

Ford Mustang, but the suspect refused to stop the vehicle. Instead, the person

operating the black Ford Mustang began to speed up, causing Sergeant Hoehn to

activate his siren.

{¶40} At this point, Williams again suggests that the evidence in the record

reflects a genuine issue of material fact that Sergeant Hoehn’s conduct was wanton

or reckless because there is an evidentiary dispute as to whether he activated his

siren. However, based on our resolution of this issue under our discussion of

Shawnee Township’s political-subdivision immunity, that issue is insufficient to

create a genuine issue of material fact here as well.

{¶41} Furthermore, even though the pursuit occurred in the early-morning

hours, the roads were dry, * * * conditions were otherwise clear,” and Sergeant

-22- Case No. 1-22-34

Hoehn “encountered very light traffic.” (Doc. No. 45, Ex. A). Moreover, while the

pursuit reached speeds up to 90 miles per hour, there were also times when the

pursuit proceeded at a much slower pace. See Westlake, 2021-Ohio-4582, at ¶ 30.

{¶42} The record reveals that the suspect vehicle failed to heed stop signs

and stop lights and proceeded in the wrong lane of travel to either pass vehicles or

effect a turn. Those circumstances necessitated Sergeant Hoehn to fail to obey those

traffic-control devices and cross into the opposite lane of travel as well. However,

even though Sergeant Hoehn failed to heed those traffic control devices, he testified

that he slowed “down, and [made] sure that [he] had a visual of oncoming traffic”

before proceeding through an intersection. (Nov. 2, 2021 Depo. at 22). Likewise,

Sergeant Hoehn testified that he followed the suspect vehicle “in the wrong lane”

of travel after observing “no traffic on the roadway.” (Id. at 18-19). See Westlake

at ¶ 30 (“The officers crossed the double-yellow line at times to pass vehicles that

were either attempting to pull over or had already pulled over, but not during times

when oncoming traffic was present in the other lane.”), citing Scott at 392 (Stevens,

J., dissenting) (“Passing a slower vehicle on a two-lane road always involves some

degree of swerving and is not especially dangerous if there are no cars coming from

the opposite direction.”).

{¶43} Sergeant Hoehn testified that the pursuit proceeded down what he

“thought was an alley,” but “turned out to be an access road” “that later turned into

-23- Case No. 1-22-34

residents [sic] back and side yards.” (Nov. 2, 2021 Depo. at 20); (Plaintiff’s Ex. 1).

Compare Westlake at ¶ 30 (noting that the circumstances of the pursuit necessitated

the officers to travel “briefly through some landscaping”). Nevertheless, Sergeant

Hoehn testified that there were no people outside and that he was “able to maintain

control of [his] vehicle at [those] speeds in th[e] back yard.” (Nov. 2, 2021 Depo.

at 21). Significantly, he testified that his cruiser did not strike anything while

traveling through the back yard.

{¶44} Moreover, Sergeant Hoehn testified that he did not attempt to force

the vehicle from the roadway because “[t]hat’s not how [the] department is trained

to do.” (Id. at 20). Rather, he testified that he maintained a reasonable distance

behind the suspect throughout the pursuit. Further, Sergeant Hoehn testified that he

“had dispatch notify [the City of Lima] that [the pursuit] entered into their area”

“[o]nce [the pursuit] entered into the City of Lima” “to gain assistance from them.”

(Id. at 25). Notably, Sergeant Hoehn testified that he was primarily concerned for

the safety of the occupants of the black Ford Mustang because “[g]iven the

information that was given at the time, [he] felt there was a serious offense

occurring.” (Id. at 34).

{¶45} Thus, even when viewing the evidence in a light most favorable to

Williams, there is no genuine issue of material fact that Sergeant Hoehn’s conduct

was not wanton or reckless. See Westlake at ¶ 37. Therefore, Sergeant Hoehn is

-24- Case No. 1-22-34

entitled to statutory immunity under R.C. 2744.03(A)(6). Accordingly, the trial

court did not err by granting summary judgment in favor of Sergeant Hoehn.

{¶46} For these reasons, Williams’s assignment of error is overruled.

{¶47} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgments of the trial court.

MILLER, P.J. and SHAW, J., concur.

/jlr

-25-