[Cite as Champagne v. Franklin Cty. Sheriff's Office, 2019-Ohio-1459.]

                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT

Mary E. Champagne,                                  :

                Plaintiff-Appellant,                :
                                                                            No. 17AP-721
v.                                                  :                    (C.P.C. No. 16CV-9005)

Franklin County Sheriff's Office et al.,            :           (ACCELERATED CALENDAR)

                Defendants-Appellees.               :



                                           D E C I S I O N

                                      Rendered on April 18, 2019


                On brief: Geiser, Bowman & McLafferty LLC, J. Scott
                Bowman, and Ashley T. Merino, for appellant. Argued:
                J. Scott Bowman and Ashley T. Merino.

                On brief: Ron O'Brien, Prosecuting Attorney, and Amy L.
                Hiers, for appellees. Argued: Jason S. Wagner.

                  APPEAL from the Franklin County Court of Common Pleas

PER CURIAM
        {¶ 1} Plaintiff-appellant, Mary E. Champagne ("Champagne"), appeals from the
decision of the Franklin County Court of Common Pleas granting summary judgment in
favor of defendants-appellees, Michael Miller ("Deputy Miller"), Franklin County Sherriff
[Dallas Baldwin], and the Franklin County Sheriff's Office ("FCSO"). For the reasons set
forth below, we affirm the judgment of the trial court.
I. FACTS AND PROCEDURAL HISTORY
        {¶ 2} On June 17, 2015, Deputy Miller was dispatched to a residential address in
Grove City, Ohio, in order to respond to an "alarm drop," an activated burglar alarm. An
alarm drop requires an immediate response. Although another deputy also responded to
the dispatch, Deputy Miller stated that he would proceed to the location because he was
No. 17AP-721                                                                                2

closer. Deputy Miller testified that he immediately began driving towards the address
without activating the lights and sirens on his cruiser, in order to not alert any intruder in
the home. The only information provided in the dispatch from the alarm drop was the
physical address, the fact that it was a residence, and a report of motion on the first floor.
(June 28, 2017 Mot. for Summ. Jgmt., Ex. B, Miller Aff. at ¶ 2-8.)
       {¶ 3} Deputy Miller drove westbound on State Route 665 and slowed down as he
approached the intersection with U.S. Route 62, where cars were beginning to move after
the traffic light turned green. After he passed through the intersection, he looked down at
the radio in his cruiser to make sure that it was tuned to the proper channel for
communicating about the alarm drop. When Deputy Miller looked up, he saw that the car
in front of him had stopped. He did not have time to stop the cruiser before it collided with
the stopped car. The airbag deployed and several bystanders had to help him open the
cruiser's door. Deputy Miller checked on the occupants of the other vehicle and then
reported the accident. (Miller Aff. at ¶ 10-15.)
       {¶ 4} Champagne, who was a passenger in the vehicle struck by Deputy Miller's
vehicle, filed suit against defendants-appellees on September 21, 2016. She alleged that
Deputy Miller had been negligent for failing to maintain an assured clear distance before
the collision, resulting in injuries to her back and head. Champagne also alleged that
Franklin County Sheriff [Dallas Baldwin] and the FCSO were liable under a theory of
respondeat superior because Deputy Miller had acted within the scope of his employment
when his negligence caused her injuries. (Sept. 21, 2016 Compl.)
       {¶ 5} Defendants-appellees moved for summary judgment in the trial court on
June 28, 2017. They argued that R.C. 2744.03 barred Champagne's negligence claim
against Deputy Miller because he did not act outside the scope of his employment or with
malicious purpose, bad faith, or in a wanton or reckless manner, as required to overcome
statutory immunity. Defendants-appellees also argued that because Deputy Miller was
responding to an emergency call at the time he negligently caused the accident,
R.C. 2744.02(B)(1)(a) provided a full defense to Franklin County Sheriff [Dallas Baldwin]
and the FCSO, the political subdivision that employed him. (June 28, 2017 Memo. in
Support of Mot. for Summ. Jgmt.)
       {¶ 6} In response, Champagne argued that statutory immunity did not bar her
negligence claim. She provided two reasons to counter the appellees' assertion that Deputy
No. 17AP-721                                                                              3

Miller had been on an emergency call at the time of the collision. First, she argued that in
his statement to the crash investigator, Trooper Brian Satchell, Deputy Miller admitted that
he had not been on an emergency call. Trooper Satchell's affidavit stated that Deputy Miller
had reported that he had "not [been] operating in an emergency capacity" when responding
to the alarm drop. (Sept. 1, 2017 Pl.'s Memo. Contra, Notice of Filing of Aff., Ex. 7, ¶ 9.)
Second, citing an administrative regulation stating that officers "will respond" to
emergency dispatches with the use of emergency lights and sirens, Champagne pointed to
Deputy Miller's failure to use either. She also claimed that willful or wanton conduct is
typically a question of fact for the jury, and that a reasonable jury could conclude that
Deputy Miller's inattention to the road before striking her car could amount to such
conduct. (Sept. 1, 2017 Pl.'s Memo. Contra at 5-10.)
       {¶ 7} The trial court granted appellant's motion for summary judgment, finding
that Deputy Miller's response to the alarm drop qualified as an "emergency call" under the
statutory definition of the term in R.C. 2744.01(A) and the Supreme Court of Ohio's broad
interpretation of that definition in Colbert v. Cleveland, 99 Ohio St.3d 215, 2003-Ohio-
3319. The trial court also concluded that the deputy's conduct was not willful, wanton,
malicious, or in bad faith, even when viewed in a light most favorable to Champagne.
(Dec. 19, 2017 Decision and Entry.)
       {¶ 8}   Champagne filed a timely notice of appeal from the trial court's judgment.
(Oct. 6, 2017 Notice of Appeal.) We note that her appeal only addresses the trial court's
decision to grant appellees' motion for summary judgment under R.C. 2744.02. Appellees
also moved the trial court for summary judgment in favor of Deputy Miller under R.C.
2744.03, which the trial court granted. Accordingly, Champagne has waived any argument
that the trial court erred in its ruling under R.C. 2744.03.
II. ASSIGNMENTS OF ERROR
       {¶ 9} Champagne sets forth the following assignments of error:
               [1.] The Trial Court erred, as a matter of law, by granting
               Defendants-Appellee's motion for summary judgment because
               genuine issues of material fact exist as to whether Deputy
               Miller was on an "emergency call."

               [2.] The Trial Court erred, as a matter of law, by granting
               Defendants-Appellee's motion for summary judgment because
               genuine issues of material fact exist as to whether Deputy
No. 17AP-721                                                                                 4

              Miller's conduct prior to the motor vehicle collision was willful
              and wanton.

III. STANDARD OF REVIEW
       {¶ 10} A de novo standard of review applies to a trial court's decision to grant
summary judgment. Andersen v. Highland House Co., 93 Ohio St.3d 547, 548 (2001); Byrd
v. Arbors E. Subacute & Rehab. Ctr., 10th Dist. No. 14AP-232, 2014-Ohio-3935, ¶ 5. "When
an appellate court reviews a trial court's disposition of a summary judgment motion, it
applies the same standard as the trial court and conducts an independent review, without
deference to the trial court's determination." Gabriel v. Ohio State Univ. Med. Ctr., 10th
Dist. No. 14AP-870, 2015-Ohio-2661, ¶ 12, citing Byrd, citing Maust v. Bank One
Columbus, N.A., 83 Ohio App.3d 103, 107 (10th Dist.1992).
       {¶ 11} The summary judgment standard is set forth in Civ.R. 56(C), which states
that "[s]ummary judgment shall be rendered forthwith if the pleadings, depositions,
answers to interrogatories, written admissions, affidavits, transcripts of evidence, and
written stipulations of fact, if any, timely filed in the action, show that there is no genuine
issue as to any material fact and that the moving party is entitled to judgment as a matter
of law." Summary judgment is only appropriate if "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, that party being entitled to have the evidence or stipulation
construed most strongly in the party's favor." Id.
       {¶ 12} When moving for summary judgment, "the moving party bears the initial
responsibility of informing the trial court of the basis for the motion, and identifying those
portions of the record before the trial court which demonstrate the absence of a genuine
issue of fact on a material element of the nonmoving party's claim." Dresher v. Burt, 75
Ohio St.3d 280, 292 (1996.) After the moving party discharges its initial burden, the
nonmovant must point to some evidence in the record that demonstrates the existence of a
genuine issue of fact for trial. Byrd at ¶ 7, citing Dresher at 293.
IV. ANALYSIS
       {¶ 13} R.C. Chapter 2744 governs a political subdivision's immunity from tort
liability. The statute "sets out the method of analysis, which can be viewed as involving three
tiers, for determining a political subdivision's immunity from liability." Greene Cty.
Agricultural Soc. v. Liming, 89 Ohio St.3d 551, 556 (2000). The analysis begins with the
No. 17AP-721                                                                                  5

premise that a political subdivision is not liable for damages arising from injury caused by
an act of the political subdivision or one of its employees "in connection with a
governmental or proprietary function." R.C. 2744.02(A). This "general rule of immunity is
not absolute, but is limited by the provisions of R.C. 2744.02(B), which details when a
political subdivision is not immune." Liming at 557. Thus, under the second tier of the
analysis, a court must consider whether one of the five exceptions to immunity enumerated
in R.C. 2744.02(B) applies. Id. "If any of the exceptions to immunity in R.C. 2744.02(B) do
apply and no defense in that section protects the political subdivision from liability, then
the third tier of the analysis requires a court to determine whether any of the defenses
in R.C. 2744.03 apply, thereby providing the political subdivision a defense against
liability." Colbert at ¶ 9.
       {¶ 14} In this case, the applicable exception to the R.C. 2744.02(A) immunity is
stated in 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." Because this appeal involves a "full defense" from liability
under R.C. 2744.02(B)(1) and Champagne did not appeal the trial court's ruling in favor of
appellees under R.C. 2744.03, we need not address the third tier of the analysis. Colbert at
¶ 9.
       {¶ 15} A political subdivision has full defense to liability when a police officer "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). Whether
Deputy Miller was on an "emergency call" and whether his actions amounted to "willful or
wanton misconduct" are the questions raised by Champagne's first and second assignments
of error, respectively.
               A. FIRST ASSIGNMENT OF ERROR
       {¶ 16} In the first assignment of error, Champagne argues that it was error for the
trial court to enter summary judgment in favor of appellant because there were genuine
issues of material fact as to whether Deputy Miller was on an emergency call at the time of
the accident. She points to an affidavit from the crash investigator, the lack of any indication
of an emergency on the call sheet for the alarm drop, and Deputy Miller's decision not to
No. 17AP-721                                                                                                  6

turn on the lights and sirens in the cruiser as evidence to support this argument.
(Appellant's Brief at 8-12.)
        {¶ 17} For purposes of a full defense to liability under R.C. 2744.02(B)(1)(a), an
emergency call is defined 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."
R.C. 2744.01(A). The Supreme Court of Ohio has held that the definition of "emergency
call" under R.C. 2744.02(B)(1)(a) "involves a situation to which a response by a peace
officer is required by the officer's professional obligation." Colbert at syllabus. "While
generally the question of whether particular situations constitute an emergency call is a
question of fact, a court may determine whether a police officer is on an emergency call as
a matter of law where triable questions of fact are not present." Smith v. McBride, 10th Dist.
No. 09AP-571, 2010-Ohio-1222, ¶ 15, citing Hewitt v. Columbus, 10th Dist. No. 08AP-1087,
2009-Ohio-4486, ¶ 10.
        {¶ 18} As explained in Colbert, Deputy Miller's response to the alarm drop dispatch
qualified as an emergency call under R.C. 2744.02(B)(1)(a). The police dispatch report
stating that a residential alarm had been triggered was a call to duty to which Deputy Miller
responded. He had a professional obligation to respond to the dispatch, and he averred in
his affidavit that it required an immediate response.
        {¶ 19} Trooper Satchell's statement concerning whether Deputy Miller was on an
emergency call does not create an issue of fact. According to Trooper Satchell, Deputy Miller
"stated that he was responding to a call for service but not operating in an emergency
capacity." (Sept. 1, 2017 Pl.'s Memo. Contra, Notice of Filing of Aff., Ex. 7, ¶ 9.)1 Deputy
Miller's characterization of his actions is only a subjective assessment of the situation. The
objective facts, which are not in dispute, demonstrate that his response to the dispatch
about the alarm drop was a call to duty, in accordance with his professional obligation.




1 Champagne has attached   a notarized version of Trooper Satchell's affidavit to her appellate brief. However,
under App.R. 9(A), the record on appeal consists only of those "papers and exhibits" filed in the trial court.
"An exhibit merely appended to an appellate brief is not part of the record, and we may not consider it in
determining the appeal." State v. Grant, 10th Dist. No. 12AP-650, 2013-Ohio-2981, ¶ 12, citing In re D.P.,
10th Dist. No. 12AP-557, 2013-Ohio-177, ¶ 18. However, because this document was filed in the trial court
as well, we may consider it on appeal. (Sept. 1, 2017 Pl.'s Memo. Contra, Notice of Filing of Aff., Ex. 7, ¶ 9.)
No. 17AP-721                                                                                   7

       {¶ 20} Nor does the lack of information describing an emergency on the call sheet
create a genuine issue of material fact as to whether Deputy Miller was on an "emergency
call" under R.C. 2744.02(B)(1)(a). As Deputy Miller stated, the only information included
on the call sheet was what was reported to the police dispatcher at the time. This
information not only included an activated alarm, but motion on the first floor of the
residence. (Sept. 1, 2017 Pl.'s Memo. Contra, Ex. 3, Miller Dep. at 54-55.) Such a dispatch
qualifies as a call to duty.
       {¶ 21} Champagne points to the fact that Deputy Miller did not activate the sirens
and lights on his cruiser as required by a county administrative regulation during
emergency runs, and argues that the failure to activate the cruiser's sirens and lights shows
that he was not on an emergency run. (Appellant's Brief at 12.) The regulation in question,
Franklin County Administrative Regulation AR512, states: "Office personnel will respond
to emergency-type runs, using emergency lights and sirens * * * [w]hen dispatched by the
radio dispatcher." (Sept. 1, 2017 Pl.'s Memo. Contra, Ex. 1 at 2.) A violation of this regulation
does not demonstrate that an officer's failure to activate sirens and lights precludes a
response from qualifying as an emergency call. We have previously held that "R.C. 2744.02
simply does not require 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." Moore v. Columbus, 98 Ohio App.3d 701, 709 (10th
Dist.1994), applying Horton v. Dayton, 53 Ohio App.3d 68 (2d Dist.1988).
       {¶ 22} In addition, Deputy Miller's explanation for not using sirens and lights when
responding to the alarm drop is consistent with being on an emergency call. As he stated
during his deposition: "Responding to an alarm drop or a burglary in progress creates a
potential for caustic situations. That's why we don't use lights and sirens when [we] go into
those types of things." (Miller Dep. at 21.) The deputy was also concerned because on the
two-way road to the address there was "not much room for anybody to pull over and get out
of your way," and the goal was "get there as quickly as you can." (Miller Dep. at 22.)
Regardless of whether Deputy Miller was technically in violation of the county regulation,
the particular considerations surrounding the response and his stated reasons for his
conduct support the conclusion that his actions constituted an "emergency call" under R.C.
2744.02(B)(1)(a).
No. 17AP-721                                                                                   8

       {¶ 23} Citing McGuire v. Lovell, 128 Ohio App.3d 473 (3d Dist.1998), Champagne
argues that summary judgment should not have been granted because whether Deputy
Miller was on an emergency call was an issue of fact that required an assessment of his
credibility. However, in McGuire, several witnesses contradicted the police officer's version
of events, resulting in factual disputes over the time that he had activated the sirens and
lights in his vehicle and whether he had accelerated or braked before entering an
intersection. Id. at 483. In addition, the officer's assertion that he had "called dispatch prior
to entering the chase [was] called into question" by radio logs submitted as evidence. Id. at
479. Here, in contrast, there is no evidence disputing Deputy Miller's version of the events
or that calls into question his credibility.
       {¶ 24} "There is no requirement in the statute which would limit an 'emergency call'
only to those occasions where there is an inherently dangerous situation or when human
life is at danger." Moore at 706. Deputy Miller's actions when responding to the alarm drop
fully accorded with the definition of an "emergency call" under R.C. 2744.02(B)(1)(a). The
trial court did not err when it reached the same conclusion. Accordingly, the first
assignment of error is overruled.
               B. SECOND ASSIGNMENT OF ERROR
       {¶ 25} In the second assignment of error, Champagne argues that the trial court
erred in granting summary judgment because there were genuine issues of material fact
about whether Deputy Miller's actions were willful or wanton. She argues that his failure to
turn on the cruiser's sirens or lights, the admission during his deposition that he looked
away from the road for three to four seconds, and evidence that he was driving at a high
rate of speed at the time of the collision could cause a reasonable jury to conclude that
Deputy Miller's actions amounted to willful and wanton misconduct. (Appellant's Brief at
13-20.)
       {¶ 26} We have previously interpreted the phrase "willful or wanton misconduct"
under R.C 2744.02(B)(1)(a) as indicative of "behavior demonstrating a deliberate or
reckless disregard for the safety of others." Moore at 708. "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." Anderson v.
Massillon, 134 Ohio St.3d 380, 2012-Ohio-5711, paragraph two of the syllabus, following
No. 17AP-721                                                                                 9

Tighe v. Diamond, 149 Ohio St. 520, 527 (1948). Willful conduct involves an " 'intent,
purpose, or design to injure.' " Robertson v. Dept. of Pub. Safety, 10th Dist. No. 06AP-1064,
2007-Ohio-5080, ¶ 14, quoting Byrd v. Kirby, 10th Dist. No. 04AP-451, 2005-Ohio-1261,
¶ 22. "Wanton misconduct is 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."
Anderson at paragraph three of the syllabus, following Hawkins v. Ivy, 50 Ohio St.2d 114
(1977). "A wanton act is an act done in reckless disregard of the rights of others, which
reflects a reckless indifference on the consequences to the life, limb, health, reputation, or
property of others." Byrd at ¶ 23, citing State v. Earlenbaugh, 18 Ohio St.3d 19 (1985).
       {¶ 27} With these standards in mind, we cannot agree that Deputy Miller's actions
while on the emergency call amounted to either willful or wanton misconduct. As discussed
previously, his reasons for not turning on the sirens and lights in the cruiser were a
precaution against alerting a potential intruder in the residence to his approach and forcing
cars to pull over on a two-way road where there was "not much room for anybody to pull
over and get out of [the] way." (Miller Dep. at 22.). These actions indicate a regard for the
safety of others, which is the opposite of willful or wanton misconduct. Moore at 708.
       {¶ 28} Furthermore, even if Deputy Miller violated AR512 by turning off the sirens
and lights, "the violation of a statute, ordinance, or departmental policy enacted for the
safety of the public is not per se willful, wanton, or reckless conduct, but may be relevant to
determining the culpability of a course of conduct." Anderson at paragraph five of the
syllabus. To demonstrate that a policy violation is evidence of more than negligence, there
must be "evidence of an accompanying knowledge that the violations 'will in all probability
result in injury.' " Anderson at ¶ 38, quoting O'Toole v. Denihan, 118 Ohio St.3d 374, 2008-
Ohio-2574, ¶ 92. Here, not only is there no evidence that Deputy Miller had knowledge that
violating AR512 would result in injury, the evidence is that Deputy Miller's actions were
taken as specific precautionary measures.
       {¶ 29} Champagne suggests that when the evidence is construed in her favor, it
demonstrates that Deputy Miller failed to "take care" by driving through the intersection at
a "high [] rate of speed" and taking his eyes off the road for three to four seconds.
(Appellant's Brief at 19.) Such conduct, however, suggests mere negligence, where the
defendant breaches the duty of care owed to the plaintiff, not wanton conduct. See, e.g.,
Stenger v. Timmons, 10th Dist. No. 10AP-528, 2011-Ohio-1257, ¶ 5 (stating the elements of
No. 17AP-721                                                                                10

negligence, which require the plaintiff to prove that "(1) the defendant owed her a duty of
care; (2) the defendant breached that duty of care; and (3) as a direct and proximate result
of the defendant's breach, the plaintiff suffered injury"). Moreover, the evidence does not
support Champagne's assertion that Deputy Miller was speeding through the intersection.
The only evidence concerning his rate of speed was his recollection that he was driving 25-
30 miles per hour through the intersection, where the speed limit was actually 55 miles per
hour. (Miller Dep. at 22.) Coupled with his momentary glance away from the road that
resulted in the collision, the evidence, at best, demonstrates negligence. This falls far short
of the intent, purpose, or design to injure required to show willful conduct or the reckless
disregard that demonstrates wanton conduct. Byrd at ¶ 22-23.
       {¶ 30} Champagne argues that under Williams, 2016-Ohio-7969, a failure to turn
on lights and sirens demonstrates wanton conduct. In Williams, we affirmed the trial
court's ruling that reasonable minds could differ as to whether an officer's driving
constituted wanton conduct. The officer made a U-turn "into oncoming traffic that not even
he could see" on a four-lane urban street only two seconds after turning on his lights and
siren. Id. at ¶ 22. Video evidence showed that the driver that the officer struck could not
have seen the cruiser or its lights in the "five or six seconds" before the driver's van was
struck. Id. Thus, we concluded that "[a] reasonable juror could infer that [the officer] knew
he could not see oncoming traffic, including Williams' van, and that a car in Williams' path
of travel would not likely see him, yet he made the U-turn anyway." Id. Here, in contrast, a
reasonable juror could not conclude that Deputy Miller's three to four second distraction
while going nearly half the allowable speed limit amounted to wanton conduct.
Furthermore, the officer's activation of the lights and siren in Williams played a causal role
in the injury, due to the driver's inability to see the lights. In this case, Champagne has not
argued that Deputy Miller's decision to not activate them was a proximate cause of the
collision, as her vehicle was stopped when Deputy Miller's cruiser struck it. In short, the
facts in Williams are distinct from those in this case, and far more probative of the "failure
to exercise any care * * * in circumstances in which there is great probability that harm will
result" or recklessness that are indicative of wanton behavior. Anderson at paragraph three
of the syllabus; Byrd at ¶ 23.
       {¶ 31} For the foregoing reasons, we conclude that the trial court did not err when
it ruled that the undisputed evidence showed that Deputy Miller's actions during the
No. 17AP-721                                                                             11

emergency call did not amount to willful or wanton misconduct. Accordingly, the second
assignment of error is overruled.
V. CONCLUSION
       {¶ 32} The trial court did not err when granting summary judgment in favor of the
appellees and granted them immunity from liability under R.C. Chapter 2744. Accordingly,
the first and second assignments of error are overruled, and the judgment of the trial court
is affirmed.
                                                                       Judgment affirmed.
                    SADLER, DORRIAN and BRUNNER, JJ., concur.
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