[Cite as Bell v. Cleveland, 2013-Ohio-2093.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 98933




                                        MARTEZ BELL
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                 CITY OF CLEVELAND
                                                     DEFENDANT-APPELLANT




                                    JUDGMENT:
                              REVERSED AND REMANDED



                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CV-765643

        BEFORE: S. Gallagher, J., Boyle, P.J., and Celebrezze, J.

        RELEASED AND JOURNALIZED: May 23, 2013
ATTORNEYS FOR APPELLANT

Barbara A. Langhenry
Director of Law

By: Jerome A. Payne, Jr.
Assistant Director of Law
City of Cleveland
601 Lakeside Avenue, Suite 106
Cleveland, OH 44114


ATTORNEY FOR APPELLEE

Robert R. Lucarelli
Robert R. Lucarelli Co., L.P.A.
526 Superior Avenue, #505
Cleveland, OH 44114
SEAN C. GALLAGHER, J.:

       {¶1} Defendant-appellant city of Cleveland (“the City”) appeals the decision of

the Cuyahoga County Court of Common Pleas that denied its motion for summary

judgment against plaintiff-appellee Martez Bell (“Bell”). Upon our review of the record,

we reverse the decision of the trial court and find that the City is entitled to immunity.

       {¶2} On November 17, 2007, Bell attended a dance at the Kinsman Party Center,

located at 93rd Street and Kinsman Road in Cleveland. Bell estimated that there were no

more than 200 people in the party center. Around 11:00 p.m., everyone was required to

leave the party center because a fight broke out. Once outside, Bell observed several

police cars with their lights flashing. Bell proceeded to walk across the street to a Shell

gas station with a friend. Bell testified during his deposition that he observed multiple

fights occurring outside the party center and that the police were trying to break up the

fights. However, in his affidavit, Bell indicated that there was no fighting going on by

the time he left the party center. He also stated in his affidavit that he went to a nearby

McDonald’s restaurant to make a phone call before going to the gas station and that there

was no fighting going on at these locations.

       {¶3} Bell also stated in his affidavit that two police cars without flashing lights or

sirens pulled up at the gas station. An officer stopped Bell, began questioning him, and

told him to go home. Bell stated that as the officer pulled away, again without lights or

sirens, the police car ran over Bell’s left foot. As a result of the accident, Bell sustained
a left-foot sprain. Bell’s friend, Dauesean Wirt, provided an affidavit attesting to the

same events.

       {¶4} Officer Wade Westerfield stated in his deposition that he received either a

broadcast for assistance or “other officers gone for assistance” for a fight. The fight was

so large that two additional police districts were called to assist. Upon arriving at the

party center, Officer Westerfield saw an ongoing fight, with mainly all juveniles, that was

occurring at the party center, in the parking lot, in the street, at the gas station, and at the

McDonald’s restaurant. He estimated there were “150, 200 plus” people. He indicated

that there were other police officers at the scene and he assumed “every available car and

our night shift [were] there at the time[,]” which would have been at least eight police

cars with sirens and lights flashing.

       {¶5} Officer Westerfield stated that he had his lights and sirens on as he moved his

vehicle through the crowd. He headed to the gas station because there were officers

“chasing some kids and some were over there fighting or trying to break up fights over at

that gas station area.” There were officers “on foot breaking up people pretty much

everywhere.” Officer Westerfield stated that he pulled into the gas station, and as he

jumped out of his vehicle to assist, someone yelled “you’re on his foot.” The officer then

got back in his car and backed it up. He then checked on the individual and told him to

wait while the officer called EMS. Officer Westerfield stated that when he looked back,

the individual had taken off running toward McDonald’s with a bunch of kids. Officer
Westerfield stated that the fight was ongoing and he actually heard shots fired down the

street after the juveniles ran in the direction of the McDonald’s.

          {¶6} On September 30, 2011, Bell filed a complaint for negligence against the

City. He alleges his injuries were caused by a City employee’s negligent and careless

operation of a motor vehicle in the course and scope of employment. The City filed a

motion for summary judgment, claiming it is entitled to immunity pursuant to the

“emergency call” defense afforded under R.C. 2744.02(B)(1)(a). The trial court denied

the motion on August 13, 2012.          The court found that there are facts in dispute

surrounding the incident and that the issue of “whether the officer was on an emergency

call or responding to a call to duty” requires jury interpretation. The City timely filed

this appeal.

          {¶7} The City’s sole assignment of error is that the trial court erred in denying

summary judgment because there is no genuine issue of material fact as to “whether or

not [the officer] was responding to a call to duty when the accident occurred.”

          {¶8} Appellate review of summary judgment is 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.      Accordingly, we afford no deference to the trial court’s decision and

independently review the record to determine whether summary judgment is appropriate.

Hollins v. Shaffer, 182 Ohio App.3d 282, 2009-Ohio-2136, 912 N.E.2d 637, ¶ 12 (8th

Dist.).     Under Civ.R. 56(C), summary judgment is proper when the moving party

establishes that
       (1) no genuine issue of any material fact remains, (2) the moving party is
       entitled to judgment as a matter of law, and (3) it appears from the evidence
       that reasonable minds can come to but one conclusion, and construing the
       evidence most strongly in favor of the nonmoving party, that conclusion is
       adverse to the party against whom the motion for summary judgment is
       made.

State ex rel. Duncan v. Mentor City Council, 105 Ohio St.3d 372, 2005-Ohio-2163, 826

N.E.2d 832, ¶ 9, citing Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d

267 (1977).

       {¶9} There is no dispute that the City qualifies as a political subdivision for

purposes of establishing immunity under R.C. 2744.02(A)(1). That immunity may be

negated under R.C. 2744.02(B)(1), which provides 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, an exception exists under R.C.

2744.02(B)(1)(a) 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.”

       {¶10} In this matter, Bell concedes that the officer’s actions did not amount to

willful or wanton misconduct. The central issue is whether the officer was responding to

an emergency call.

       {¶11} An “emergency call” is defined under R.C. 2744.01(A) as “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.” The Ohio Supreme Court has held

that an “emergency call” under R.C. 2744.01(A) is not limited to “those calls to duty that

concern inherently dangerous situations.” Colbert v. Cleveland, 99 Ohio St.3d 215,

2003-Ohio-3319, 790 N.E.2d 781, ¶ 11. Instead, “an ‘emergency call’ * * * involves a

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

obligation.” Id. at ¶ 15. The inquiry “turns on whether an officer was acting pursuant to

a call to duty at the time of the accident.” Smith v. McBride, 130 Ohio St.3d 51,

2011-Ohio-4674, 955 N.E.2d 954, ¶ 21.

       {¶12} “[R.C. 2744.01(A) and R.C. 2744.02(B)(1)(a)] by their clear terms grant

immunity to a political subdivision 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.”

 Id. at ¶ 40.   The issue of whether an officer is on an “emergency call” may be

determined as a matter of law when there are no triable questions of fact present.

Rutledge v. O’Toole, 8th Dist. No. 84843, 2005-Ohio-1010, ¶ 19; Howe v. Henry Cty.

Commrs., 167 Ohio App.3d 865, 2006-Ohio-3893, 857 N.E.2d 664, ¶ 13 (3d Dist.).

       {¶13} The evidence in this case establishes that the officer was acting pursuant to

his professional obligation as a police officer. Officer Westerfield was responding to a

general call for assistance with regard to the situation at the party center. This was a

situation that required a response by Officer Westerfield pursuant to his professional

obligation. Indeed, it appeared that every available police car on duty, which was at least

eight, responded to the scene. The record reflects that there were approximately 200
individuals at the party center, multiple fights broke out, and the police were attempting

to get the very large crowd and fights under control.

       {¶14} While Bell provided a self-serving affidavit that stated no fighting was

going on when he left the party center, he testified during his deposition that multiple

fights were occurring and several police cars were present with sirens and lights flashing

when he exited the party center. Officer Westerfield indicated that the fights had moved

to the parking lot, the street, the gas station, and the McDonald’s. Officers were actively

engaged in breaking up the fights “everywhere.” During his response to the emergency

call, Officer Westerfield drove over to the gas station to assist other officers control the

situation and disperse the individuals. It was at this point that he encountered Bell,

whose foot was run over by the officer’s vehicle.

       {¶15} While Bell claims there are factual disputes as to whether the emergency

situation had dissipated at the time he was injured, these disputes are not material to the

determination. There is no question that the officer was fulfilling his professional duty

and was assisting his fellow officers in controlling the situation and dispersing the

juveniles when the accident occurred. Further, even if the accident occurred as Officer

Westerfield was pulling out, he was still acting pursuant to a call to duty.

       {¶16} In Longley v. Thailing, 8th Dist. No. 91661, 2009-Ohio-1252, the court

applied immunity with regard to an accident that occurred as an officer re-entered a traffic

lane after he stopped to investigate a vehicle in the berm of a roadway. The court

recognized that the on-duty officer had a professional obligation to investigate the vehicle
stopped in the berm of the roadway. The court further refused to limit the definition of

an “emergency call” temporally and found that the officer’s professional obligation

required him to not only stop but also to continue on his way. Id. at ¶ 24. Thus, even if

we accept Bell’s claim that his foot was run over as the officer was leaving, we are bound

by the prior precedent in Longley.

       {¶17} We also note that this case is distinguishable from Spain v. Bentleyville, 8th

Dist. No. 92378, 2009-Ohio-3898, where the court found that a police officer who

operates a motor vehicle in the performance of routine police patrol duties is not

responding to an “emergency call.” In Spain, a police vehicle struck a person walking on

the road. The officer testified that he was on basic patrol duty, his attention had been

diverted, and his vehicle went left of center. Id. at ¶ 9. Thus, there was no “call to

duty,” and the court declined to construe the term “emergency call” to include the

performance of basic patrol duties. Id. at ¶ 12.

       {¶18} The record herein reflects that Officer Westerfield was acting pursuant to

an “emergency call” and fulfilling his professional obligation when the accident occurred.

 Therefore, sovereign immunity protection is warranted as a matter of law.

       {¶19} Accordingly, we find the trial court erred by denying the City summary

judgment and that the City is entitled to immunity. The first assignment of error is

sustained. Upon remand, the trial court shall enter judgment for the City.

       {¶20} Judgment reversed; cause remanded.

       It is ordered that appellant recover from appellee costs herein taxed.
       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




SEAN C. GALLAGHER, JUDGE

FRANK D. CELEBREZZE, JR., J., CONCURS IN JUDGMENT ONLY;
MARY J. BOYLE, P.J., DISSENTS (WITH SEPARATE OPINION)


MARY J. BOYLE, P.J., DISSENTING:

       {¶21} Respectfully, I dissent.

       {¶22} I find that genuine issues of material fact exist as to whether Officer

Westerfield was responding to a call of duty.             The facts surrounding Officer

Westerfield’s presence at the scene of the accident are disputed.   The resolution of these

facts is necessary to determine whether the City is entitled to the defense contained in

R.C. 2744.02(B)(1)(a) to reinstate immunity. And since Civ.R. 56(C) requires us to

construe “the evidence most strongly in favor of the nonmoving party,” the conflicting

evidence presented precludes the granting of summary judgment in this case.         Thus, I

would overrule the City’s single assignment of error and affirm the trial court’s decision.
