[Cite as Browning v. Fostoria, 2010-Ohio-2163.]




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



ROXANN BROWNING,                                         CASE NO. 13-09-28

   PLAINTIFF-APPELLANT,

  v.

CITY OF FOSTORIA, ET AL.,                                     OPINION

   DEFENDANTS-APPELLEES.



                 Appeal from Seneca County Common Pleas Court
                           Trial Court No. 08-CV-0463

                                     Judgment Affirmed

                             Date of Decision: May 17, 2010




APPEARANCES:

        Charles R. Hall, Jr., Appellant

        Frank H. Scialdone, for Appellee
Case No. 13-09-28



Rogers, J.

       {¶1} Plaintiff-Appellant, Roxann Browning, appeals from the judgment of

the Court of Common Pleas of Seneca County granting the City of Fostoria and

Officer Lucas Elchert’s joint motion for summary judgment.              On appeal,

Browning argues that the trial court abused its discretion in granting summary

judgment where genuine issues of material fact existed as to whether Officer

Elchert was responding to an emergency call and whether his actions constituted

willful and wanton misconduct such that both the City of Fostoria and Officer

Elchert were immune from liability pursuant to R.C. 2744.02 and R.C. 2744.03.

Based on the following, we affirm the judgment of the trial court.

       {¶2} In September 2008, Browning filed a complaint against the City of

Fostoria (“Fostoria”) and Officer Elchert claiming damages in excess of $25,000

proximately caused by Officer Elchert’s willful and wanton conduct in driving

through a red light in response to a dispatch call and colliding with her vehicle and

seriously injuring her.     In her complaint, Browning alleged that Fostoria

negligently trained and supervised Officer Elchert, and that Fostoria was not

protected by sovereign immunity, as an exception to immunity applied for injuries

sustained due to a police officer’s willful and wanton operation of a motor vehicle

while responding to an emergency dispatch call.




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       {¶3} In November 2008, Fostoria and Officer Elchert filed a joint answer

to Browning’s complaint and included an affirmative defense stating that it was

protected by political subdivision sovereign immunity pursuant to R.C. 2744.02,

as Officer Elchert acted in good faith while responding to an emergency.

       {¶4} In April 2009, Fostoria and Officer Elchert filed a joint motion for

summary judgment pursuant to Civ.R. 56, asserting that R.C. 2744 provided

immunity for political subdivisions; that one exception to immunity was contained

under R.C. 2744.02(B), negligent operation of a motor vehicle; that there was a

complete defense to this immunity exception contained in R.C. 2744.02(B)(1)(a)

where a police officer operated a motor vehicle in response to an emergency call

and the operation of the vehicle was not willful or wanton misconduct; that

negligent supervision or training was not an exception to political subdivision

immunity; that Officer Elchert acted within the scope of his employment when he

operated his motor vehicle in response to an emergency dispatch concerning a

fight at a local trailer park; that Officer Elchert did not act willfully or wantonly

while driving his vehicle to the scene of the dispatch, as his vehicle’s lights and

sirens where activated, and he reduced his speed when he approached the

intersection and checked traffic in both directions, observing that motorists had

stopped to yield the right of way; and, consequently, that there was no genuine

issue of material fact as to whether Officer Elchert and Fostoria were immune

from liability.


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         {¶5} Subsequently, Browning filed a response to the motion for summary

judgment, stating that genuine issues of material fact existed on the questions of

whether Officer Elchert was responding to an emergency call pursuant to R.C.

2744.02(B)(1)(a), as the dispatch records indicated that Officer Elchert was

cleared of responding to the dispatch call approximately three minutes prior to the

accident, and whether Officer Elchert operated his vehicle in a willful and wanton

manner, as he was instructed by another officer to slow down, he admitted to not

knowing the guidelines for responding at a high rate of speed, he could not

remember his speed before the accident, and he received a write-up as a result of

the accident.

         {¶6} Furthermore, the deposition of Officer Elchert was filed, wherein he

stated that he has been a police officer with Fostoria for a year-and-a-half; that, in

March 2008, he had been a police officer with Fostoria for nine months; that he

was on probation for the first twelve months of employment and successfully

completed the probationary period; that the policies and procedures for Fostoria

Police included guidelines about responding to a call for service at a high rate of

speed, although he did not know the guidelines verbatim in March 2008; and, that

the guidelines provided that, when approaching a red light when responding to a

call with lights and sirens, he must slow down or stop to assure the intersection is

clear.




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       {¶7} Officer Elchert further stated that, on March 22, 2008, he received a

call for a fight in progress at Nye’s Trailer Park (“Nye’s”); that he had responded

to numerous other calls at Nye’s in the past, and he sometimes responded with

lights and sirens; that three other officers in two separate vehicles also responded

to the call with him; that he turned on his lights and sirens to respond to the call;

that he could not recall at what rate of speed he was traveling; that, as he

approached an intersection with a red light in his direction, he reduced his speed,

but he did not recall by how much; that, as he approached the intersection, he

observed traffic had stopped in the immediate area to yield the right of way; that,

as he then proceeded through the intersection, he observed Browning’s vehicle

approaching eastbound; that he was unable to stop in time, and he struck the front

passenger side portion of her vehicle; that he could not recall if Browning was

operating her vehicle at a high rate of speed as she entered the intersection; that

one of the officers traveling behind his vehicle told him to slow down via the radio

after the accident; that he did not remember receiving a call prior to the accident

indicating that the fight was over at Nye’s; that, according to the dispatch activity

records, there was a call at 17:59 removing him from responding to Nye’s; that he

believed he was removed from responding because of the accident; that there was

also a dispatch call at 18:02 regarding his accident with Browning; that there was a

two-and-a-half minute difference between the dispatch activity removing him

from the call to Nye’s and the call regarding his accident; that he was disciplined


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with a “written verbal write-up” as a result of his failure to ensure the intersection

was clear (Elchert dep., pp. 12-13); and, that he did not dispute the write-up.

       {¶8} Browning’s deposition was also filed, wherein she stated that she

was not using her cell phone as she was approaching the intersection shortly

before the accident; that she did not have a hearing problem; that, as she was

approaching the intersection, she did not hear police sirens; that, as she entered the

intersection on a green light, she saw a police cruiser, and it struck her vehicle

within seconds; that she did see the lights from the police cruiser; that she did not

attempt to swerve out of the way or brake to avoid the collision; that she did not

know how fast the police cruiser was traveling; that she was driving approximately

fifteen or twenty m.p.h. at the time of the accident, and the police cruiser was

traveling faster than she was; and, that she had not taken any prescription

medications that day or consumed any alcoholic beverages.

       {¶9} In June 2009, subsequent to a hearing on the matter, the trial court

granted Fostoria’s and Officer Elchert’s joint motion for summary judgment.

       {¶10} In July 2009, the trial court, upon its own motion, ordered Browning

to pay court costs, and Browning subsequently appealed the trial court’s grant of

summary judgment. However, we subsequently dismissed her appeal due to the

lack of a final appealable order.




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      {¶11} In September 2009, the trial court filed a judgment entry, again

granting Fostoria’s and Officer Elchert’s joint motion for summary judgment. The

judgment entry provided as follows:

      This matter comes before the Court on the motion of defendants
      for summary judgment pursuant to Civil Rule 56. Plaintiff filed
      a response to defendants’ motion. Defendants filed a reply. A
      hearing was held on June 23, 2009.

      The Court has been fully advised, having reviewed the motion,
      memoranda, pleadings, depositions, exhibit, affidavit and
      applicable law, and having heard argument of counsel.

      For the reasons stated on the record, the Court finds that there
      does not present a triable question of fact regarding the material
      issues of 1.) the existence of the emergency call at or near the
      time of this accident and 2.) whether there was willful or wanton
      misconduct by the police officer. The Court further finds that
      the Defendants are entitled to summary judgment against
      Plaintiff on all three claims for relief pursuant to Civil Rule 56
      as a matter of law.

      Judgment is rendered in favor of the Defendants and against the
      Plaintiff on all three claims presented. Plaintiff’s Complaint is
      dismissed in its entirety.

(Sep. 2009 Judgment Entry, pp. 1-2).

      {¶12} It is from the trial court’s September 2009 judgment entry granting

summary judgment to Fostoria and Officer Elchert that Browning appeals,

presenting the following assignment of error for our review.

      THE TRIAL COURT ABUSED ITS DISCRETION BY
      GRANTING THE APPELLEES [SIC] MOTION FOR
      SUMMARY JUDGMENT.




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      {¶13} In her sole assignment of error, Browning argues that the trial court

erred in granting summary judgment to Fostoria and Officer Elchert. Specifically,

she contends that genuine issues of material fact exist as to whether Officer

Elchert was responding to an emergency call and whether his conduct while

operating his vehicle was willful and wanton at the time of the accident in order

for immunity to apply pursuant to R.C. 2744.02 and R.C. 2744.03. We disagree.

      {¶14} An appellate court reviews a summary judgment order de novo.

Hillyer v. State Farm Mut. Auto. Ins. Co. (1999), 131 Ohio App.3d 172, 175.

Accordingly, a reviewing court will not reverse an otherwise correct judgment

merely because the lower court utilized different or erroneous reasons as the basis

for its determination. Diamond Wine & Spirits, Inc. v. Dayton Heidelberg Distr.

Co., 148 Ohio App.3d 596, 604-605, 2002-Ohio-3932, citing State ex rel. Cassels

v. Dayton City School Dist. Bd. of Ed., 69 Ohio St.3d 217, 222, 1994-Ohio-92.

Summary judgment is appropriate when, looking at the evidence as a whole: (1)

there is no genuine issue as to any material fact; (2) reasonable minds can come to

but one conclusion and that conclusion is adverse to the party against whom the

motion for summary judgment is made; and, therefore, (3) the moving party is

entitled to judgment as a matter of law. Civ.R. 56(C); Horton v. Harwick

Chemical Corp., 73 Ohio St.3d 679, 686-687, 1995-Ohio-286. If any doubts exist,

the issue must be resolved in favor of the nonmoving party. Murphy v.

Reynoldsburg, 65 Ohio St.3d 356, 358-59, 1992-Ohio-95.


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       {¶15} 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. Dresher v. Burt, 75 Ohio St.3d 280, 293, 1996-Ohio-107. In doing

so, the moving party is not required to produce any affirmative evidence, but must

identify those portions of the record which affirmatively support her argument. Id.

at 292. The nonmoving party must then rebut with specific facts showing the

existence of a genuine triable issue; she may not rest on the mere allegations or

denials of her pleadings. Id.; Civ.R. 56(E).

       {¶16} R.C. 2744 et seq. governs political subdivision tort liability and

provides a three-tiered analysis for determining liability.      Ward v. City of

Napoleon, 3d Dist. No. 7-07-14, 2008-Ohio-4643, ¶11, citing Cramer v. Auglaize

Acres, 113 Ohio St.3d 266, 2007-Ohio-1946, ¶14. The first tier, under R.C.

2744.02(A)(1) sets forth the general rule providing immunity to political

subdivisions for governmental and proprietary functions.

       (A)(1) For the purposes of this chapter, the functions of political
       subdivisions are hereby classified as governmental functions and
       proprietary functions. Except 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.




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       {¶17} The second tier provides five exceptions to the general grant of

immunity under R.C. 2744.02(A)(1), of which only R.C. 2744.02(B)(1) is

applicable in this case.

       (B) Subject to sections 2744.03 and 2744.05 of the Revised Code,
       a political subdivision is liable in damages in a civil action for
       injury, death, or loss to person or property allegedly caused by
       an act or omission of the political subdivision or of any of its
       employees in connection with a governmental or proprietary
       function, as follows:

       (1)   Except as otherwise provided in this division, 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.

       {¶18} Finally, the third tier of the analysis provides three defenses to the

immunity exception under R.C. 2744.02(B)(1), of which one is at issue here. R.C.

2744.02(B)(1)(a) grants an exception to political subdivisions for liability from

injury, death, or loss of personal property caused by the negligent operation of a

motor vehicle by an employee of the political subdivision when the employee was

“[a] member of a municipal corporation police department or any other police

agency [and] was operating a motor vehicle while responding to an emergency call

and the operation of the vehicle did not constitute willful or wanton misconduct.”

R.C. 2744.02(B)(1)(a). See, also, Howe v. Henry County Commrs., 167 Ohio

App.3d 865, 2006-Ohio-3893, ¶10.        The burden of proof is on the political

subdivision to establish general immunity, and, when established, the burden then




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shifts to the plaintiff to demonstrate one of the exceptions to immunity apply.

Maggio v. Warren, 11th Dist. No. 2006-T-0028, 2006-Ohio-6880, ¶38, citing

Ramey v. Mudd, 154 Ohio App.3d 582, 2003-Ohio-5170, ¶16.

      {¶19} Furthermore, R.C. 2744.03 also provides immunity for government

employees acting within the scope of their employment, with an exception for

wanton conduct.

      (6) In addition to any immunity or defense referred to in division
      (A)(7) of this section and in circumstances not covered by that
      division or sections 3314.07 and 3746.24 of the Revised Code, the
      employee is immune from liability unless one of the following
      applies:

      (a)   The employee’s acts or omissions were manifestly outside
      the scope of the employee’s employment or official
      responsibilities;

      (b)  The employee’s acts or omissions were with malicious
      purpose, in bad faith, or in a wanton or reckless manner;

R.C. 2744.03(A)(6)(a),(b).

      {¶20} Here, there was no dispute that Officer Elchert was acting within the

scope of his employment and was engaged in a governmental or proprietary

function at the time of his collision with Browning. However, the issue is whether

Officer Elchert was responding to an emergency call at the time of the collision

and whether his conduct in operating his police cruiser was willful and wanton.

      {¶21} R.C. 2744.01(A) defines an emergency call as “a call to duty,

including, but not limited to, communications from citizens, police dispatches, and



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personal observations by peace officers of inherently dangerous situations that

demand an immediate response on the part of a peace officer.” The Supreme

Court of Ohio has further defined emergency call as one involving a situation in

which a response by an officer is required by the officer’s professional obligation,

with no requirement that the situation be inherently dangerous. See Colbert v.

Cleveland, 99 Ohio St.3d 215, 2003-Ohio-3319, ¶14. See, also, McGuire v. Lovell

(1998), 128 Ohio App.3d 473, 478.

       {¶22} Moreover, willful misconduct ‘“involves an intent, purpose or

design to injure.’” Gladon v. Greater Cleveland Regional Transit Auth., 75 Ohio

St.3d 312, 319, 1996-Ohio-137, quoting McKinney v. Hartz and Restle Realtors,

Inc. (1987), 31 Ohio St.3d 244, 246.      Wanton misconduct is ‘“the failure to

exercise any care whatsoever. * * * [M]ere negligence is not converted into

wanton misconduct unless the evidence establishes a disposition to perversity on

the part of the tortfeasor. Such perversity must be under such conditions that the

actor must be conscious that his conduct will in all probability result in injury.”’

Grange Mut. Cas. Co. v. Bockelman, 3d Dist. No. 7-07-13, 2008-Ohio-1903, ¶17,

quoting McGuire, 128 Ohio App.3d at 481.

       {¶23} Turning to the facts of the case, Officer Elchert stated that he was

responding to a dispatch call in regards to a fight at a local trailer park; that he

responded with lights and sirens; that, as he approached the red light at the




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intersection, he slowed down and checked for traffic; and, that he observed

vehicles yielding the right of way, so he proceeded through the intersection.

       {¶24} Although Officer Elchert also stated that he was not sure of his rate

of speed at the time he entered the intersection, that he could not recall the exact

procedure for responding to an emergency call, and that he was disciplined as a

result of the accident, there was insufficient evidence to find that Officer Elchert’s

conduct was willful and wanton.        He clearly slowed down and checked the

intersection for traffic and warned other motorists by using his overhead lights and

sirens. Accordingly, we find this conduct does not rise to the level of an “intent,

purpose or design to injure” or “the failure to exercise any care whatsoever,” and

that immunity exists pursuant to R.C. 2744.02(B)(1)(a) and R.C. 2744.03(A)(6).

       {¶25} Additionally, Browning argues that Officer Elchert was not

responding to an emergency call at the time of the accident because the dispatch

records indicate that he was excused from responding to the call minutes before

the accident.

       {¶26} Officer Elchert did state that dispatch excused him from responding

to the emergency call at Nye’s approximately three minutes before dispatch called

regarding his accident. However, he also stated that he was removed from the

emergency call as a result of the accident, and only a three minute discrepancy

between the two dispatch calls supports such a conclusion.              Furthermore,

Browning presented no evidence other than the time difference between the two


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dispatch calls to support her conclusion that Officer Elchert was no longer

responding to the emergency call at the time of the accident.

       {¶27} Consequently, we find that no genuine issues of material fact exist

establishing facts other than that Officer Elchert was responding to an emergency

call at the time of the accident and that he was not acting in a willful and wanton

manner.   We therefore conclude that both Officer Elchert and Fostoria have

immunity from tort liability pursuant to R.C. 2744.02 and R.C. 2744.03.

       {¶28} Accordingly, we overrule Browning’s assignment of error.

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

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

                                                                Judgment Affirmed

SHAW and PRESTON, J.J., concur.

/jnc




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