[Cite as Poulain v. McConachie, 2020-Ohio-2755.]


                                      COURT OF APPEALS
                                   RICHLAND COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT


GARY POULAIN,                                      :   JUDGES:
                                                   :   Hon. William B. Hoffman, P.J.
        Plaintiff - Appellee                       :   Hon. Craig R. Baldwin, J.
                                                   :   Hon. Earle E. Wise, J.
-vs-                                               :
                                                   :
CRYSTAL MCCONACHIE,                                :
                                                   :
        Defendant - Appellee                       :
and                                                :
                                                   :   Case No. 2019 CA 0109
CITY OF MANSFIELD,                                 :
                                                   :
        Defendant – Appellant                      :
and                                                :   OPINION
                                                   :
NOLAN ALEXANDER GOODMAN,                           :
                                                   :
        Defendant – Appellant                      :


CHARACTER OF PROCEEDING:                               Appeal from the Richland County
                                                       Court of Common Pleas, Case No.
                                                       2018 CV 0583


JUDGMENT:                                              Affirmed


DATE OF JUDGMENT:                                      April 30, 2020


APPEARANCES:

For Plaintiff-Appellee Gary Poulain                    For Defendant-Appellants

MICHAEL L. INSCORE                                     GARY A. BECK
DANIEL Z. INSCORE                                      MEL. L. LUTE, JR.
Inscore Law Offices, LLC                               Baker, Dublik, Beck
3 North Main Street, Suite 703                         Wiley & Mathews
Mansfield, Ohio 44902-1740                             400 South Main Street
Richland County, Case No. 2019 CA 0109                                 2


                                            North Canton, Ohio 44720
For Plaintiff-Appellee Crystal McConachie

BRUCE A. CURRY
LYNNE K. SCHOENLING
Curry, Roby & Mulvey Co., LLC
30 Nrothwoods Boulevard, Suite 300
Columbus, Ohio 43235
Richland County, Case No. 2019 CA 0109                                              3




Baldwin, J.

       {¶1}   Defendants-appellants City of Mansfield and Nolan Alexander Goodman

appeal from the November 8, 2019 Order of the Richland County Court of Common Pleas

denying their Motion for Summary Judgment.

                       STATEMENT OF THE FACTS AND CASE

       {¶2}   On August 16, 2017, appellee Crystal McConachie was westbound on

Glessner Avenue on her way to work. Appellant Nolan Alexander Goodman, who was

working in his capacity as a police officer for the City of Mansfield Police Department, was

also westbound and was behind appellee McConachie. As appellee McConachie’s

vehicle appeared to slow to turn south onto Glessner, appellant Goodman moved left of

center to turn left onto Sturges Avenue. As appellant Goodman came alongside appellee

McConachie’s vehicle, she also began turning left to go onto Sturges Avenue. In order to

avoid colliding with the vehicle, appellant Goodman veered left and his police cruiser went

into the parking lot at 195 Sturges Avenue and struck the building at that location, which

was owned by appellee Gary Poulain.

       {¶3}   On August 22, 2018, appellee Gary Poulain filed a property damage

complaint against appellee Crystal McConachie, appellant Nolan Alexander Goodman,

both in his individual and personal capacities, and appellant City of Mansfield. On

September 17, 2018, appellants Goodman and the City of Mansfield filed an answer

asserting, in part, immunity under R.C. 2744.01 et seq., as well as a cross-claim against

appellee McConachie. On September 24, 2018, appellee McConachie filed an answer
Richland County, Case No. 2019 CA 0109                                            4


to the complaint and a cross-claim against appellants. Appellants filed an answer to the

cross-claim on September 26, 2018.

      {¶4}   Thereafter, on March 1, 2019, appellants filed a Motion for Summary

Judgment on the complaint and cross-claim on the issue of immunity. Appellee

McConachie filed a memorandum in opposition to the Motion for Summary Judgment on

April 1, 2019 and appellants filed a reply brief in support of their Motion for Summary

Judgment on April 8, 2019. Appellee Poulain, on April 18, 2019, filed a memorandum in

opposition to the Motion for Summary Judgment and also on April 18, 2019, appellee

McConachie filed a sur-reply.

      {¶5}   On April 24, 2019, appellants filed a reply to appellee Poulain’s

memorandum in opposition to summary judgment. Appellee Poulain, on August 15, 2019,

filed a Motion for Summary Judgment against appellee McConachie on the issue of

liability and she filed a memorandum in opposition to such motion on September 16, 2019.

      {¶6}   The trial court, as memorialized in an Order filed on November 8, 2019,

overruled appellants’ March 1, 2019 Motion for Summary Judgment.

      {¶7}   Appellants now appeal, raising the following assignments of error:

      {¶8}   “I. THE TRIAL COURT’S DENIAL OF SUMMARY JUDGMENT TO THE

CITY OF MANSFIELD CONSTITUTED REVERSIBLE ERROR UNDER OHIO REVISED

CODE CHAPTER 2744 ET. SEQ.”

      {¶9}   “II. BECAUSE APPELLANT GOODMAN WAS LAWFULLY DISPATCHED

ON AN EMERGENCY RUN, THE COURT ERRED IN DENYING SUMMARY

JUDGMENT.”
Richland County, Case No. 2019 CA 0109                                               5


       {¶10} “III. THE COURT ERRED IN CONSIDERING AND ADOPTING THE

AFFIDAVIT OF APPELLEE’S COUNSEL AS THE ONLY EVIDENCE CREATING A

QUESTION OF FACT ON THE ISSUE OF WANTON OR WILLFUL CONDUCT.”




                                            I, II

       {¶11} Appellants, in their first and second assignments of error, argue that the trial

court erred in denying their Motion for Summary Judgment on the issue of immunity.1

                STANDARD OF REVIEW FOR SUMMARY JUDGMENT

       {¶12} We review cases involving a grant of summary judgment using a de novo

standard of review. Bonacorsi v. Wheeling & Lake Erie Ry. Co., 95 Ohio St.3d 314, 2002-

Ohio-2220, 767 N.E.2d 707, at ¶ 24. Summary judgment is appropriately granted when “

‘(1) [n]o genuine issue as to any material fact remains to be litigated; (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 viewing such evidence most

strongly in favor of the party against whom the motion for summary judgment is made,

that conclusion is adverse to that party.’ ” Esber Beverage Co. v. Labatt USA Operating

Co., 138 Ohio St.3d 71, 2013-Ohio-4544, 3 N.E.3d 1173, ¶ 9, citing M.H. v. Cuyahoga

Falls, 134 Ohio St.3d 65, 2012-Ohio-5336, 979 N.E.2d 1261, ¶ 12, internal citation

omitted; Civ.R. 56(C).




1
 We note that the denial of immunity to a political subdivision under R.C. Chapter 2744
is a final, appealable order pursuant to R.C. 2744.02(C). Hubbell v. City of Xenia, 115
Ohio St.3d 77, syllabus, 2007-Ohio-4839, 873 N.E.2d 878.
Richland County, Case No. 2019 CA 0109                                                 6


       {¶13} A trial court should not enter a summary judgment if it appears a material

fact is genuinely disputed, nor if, construing the allegations most favorably towards the

non-moving party, reasonable minds could draw different conclusions from the

undisputed facts. Hounshell v. Am. States Ins. Co., 67 Ohio St.2d 427, 433, 424 N.E.2d

311 (1981). The court may not resolve any ambiguities in the evidence presented. Inland

Refuse Transfer Co. v. Browning–Ferris Inds. of Ohio, Inc., 15 Ohio St.3d 321, 323, 474

N.E.2d 271 (1984). A fact is material if it affects the outcome of the case under the

applicable substantive law. Russell v. Interim Personnel, Inc., 135 Ohio App.3d 301, 304,

733 N.E.2d 1186 (6th Dist. 1999).

       {¶14} The party moving for summary judgment bears the initial burden of

informing the trial court of the basis of the motion and identifying the portions of the record

which demonstrates absence of a genuine issue of fact on a material element of the

nonmoving party's claim. Wentling v. David Motor Coach Ltd., 5th Dist. Stark No.

2017CA00190, 2018-Ohio-1618, --N.E.3d--, ¶ 23, citing Dresher v. Burt, 75 Ohio St.3d

280, 293, 662 N.E.2d 264 (1996). Once the moving party meets its initial burden, the

burden shifts to the non-moving party to set forth specific facts demonstrating a genuine

issue of material fact does exist. Id. The non-moving party may not rest upon the

allegations and denials in the pleadings, but instead must submit some evidentiary

materials showing a genuine dispute over material facts. Downtown Enterprises Co. v.

Mullet, 5th Dist. Holmes No. 17CA016, 2018-Ohio-3228, ¶ 50, citing Mitseff v. Wheeler,

38 Ohio St.3d 112, 115, 526 N.E.2d 798 (1988).

       {¶15} Moreover, as noted by this Court in Matrix Acquisitions, LLC v. Styler, 5th

Dist. Tuscarawas No. 2010AP040014, 2010-Ohio-5343, 2010 WL 4345754 at ¶ 17:
Richland County, Case No. 2019 CA 0109                                                  7


              The moving party cannot discharge its initial burden under Civ.R. 56

       simply by making a conclusory assertion that the nonmoving party has no

       evidence to prove its case. Rather, the moving party must be able to

       specifically point to some evidence of the type listed in Civ.R. 56(C) which

       affirmatively demonstrates that the nonmoving party has no evidence to

       support the nonmoving party's claims. If the moving party fails to satisfy its

       initial burden, the motion for summary judgment must be denied.

                                 SOVEREIGN IMMUNITY

       {¶16} Appellants assert that they are immune from liability in this case pursuant

the Political Subdivision Tort Liability Act, which affords political subdivisions immunity

from certain types of actions.

       {¶17} Whether a political subdivision is entitled to this statutory immunity is a

question of law for a court's determination. Henney v. Shelby City School Dist., 5th Dist.

Richland No. 2005 CA 0064, 2006-Ohio-1382, ¶ 28, citing Conley v. Shearer, 64 Ohio

St.3d 284, 291, 595 N.E.2d 862 (1992).

       {¶18} As a general rule, R.C. 2744.02(A)(1) exempts political subdivisions, such

as appellant City of Mansfield, from liability for injuries caused by the acts of the political

subdivisions or their employees. Specifically, R.C. 2744.02(A)(1) provides that “[e]xcept

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.”
Richland County, Case No. 2019 CA 0109                                              8


       {¶19} Consistent with this exception, R.C. 2744.02(B)(1) states 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, R.C.

2744.02(B)(1)(a) goes on to grant a full defense to this 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 * * *.”

       {¶20} Appellants contend that appellant Goodman was responding to an

“emergency call” when the accident occurred “and, that, therefore, they are entitled to

immunity. “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. The Ohio Supreme Court has further defined the “call to duty”

described in the statute, noting “duty” means “obligatory tasks, conduct, service, or

functions enjoined by order or usage according to rank, occupation, or profession.”

Colbert v. Cleveland, 99 Ohio St.3d 215, 217, 790 N.E.2d 781 (2003), citing Webster's

Third New International Dictionary (1986). The Court concluded a call to duty is a situation

in which a response is required by the officer's professional obligation. Id.

       {¶21} Appellants argue that appellant Goodman was on an emergency call and

that, therefore, appellants are entitled to immunity. Appellant Goodman, in his affidavit,

stated, in relevant part, as follows:
Richland County, Case No. 2019 CA 0109                                            9


      1. On the morning of August 16, 2017, at approximately 08:25:20, I was

      dispatched by Mansfield central dispatch to respond to a suspected

      pedestrian/vehicle accident wherein a blue minivan allegedly hit a

      pedestrian in a parking lot at 1480 Lexington Avenue in McDonald’s parking

      lot.

      2. At the time of this dispatch, I was operating Unit 3115.

      3. As of my acknowledgment of my position as “en route”, I was on an

      “emergency run”, responding to a suspected vehicle/pedestrian accident.

      4. At the time of my response to the lawful dispatch, I was operating a

      marked Mansfield Police Department cruiser and was in full uniform as a

      sworn Mansfield police officer.

      5. After activating my lights and siren, I proceeded down Glessner, intending

      to turn left on Sturges.

      {¶22} The unauthenticated call sheet lists him as “en route”. However, appellant

Goodman, when contacted by dispatch, does not state over the radio that he is “en

route”2. Dispatch radios out three call numbers, including appellant Goodman’s, and he

responds with his call number. Dispatch then informs him to start towards McDonald’s on

Lexington Avenue and appellant Goodman responds that he copies and gives his location

at 8:25 as Altamont and Chestnut. When contacted by another unit at 8:29 to see if he is

en route to contact the subject, appellant Goodman responds “negative.”’3




2
 A CD of the Mansfield Police Department Dispatch detailing the call traffic during the
incident was included as an exhibit.
3 Although the documents were not self-authenticating under Evid.R. 902, they were

properly authenticated by testimony that they were documents that had been requested
Richland County, Case No. 2019 CA 0109                                               10


       {¶23} Moreover, appellee McConachie, in her answers to interrogatories, stated

that appellant Goodman was not operating with lights and sirens. In her statement

attached to the traffic report, she admitted to seeing lights, but denied hearing sirens. Her

witness, David Lee Carna, attested in his sworn statement that he heard appellant

Goodman’s vehicle start to skid, but that he did not see red lights or hear a siren prior to

the vehicle striking the building.

       {¶24} Furthermore, appellant Goodman, in response to interrogatories, indicated

that he was responding from Glessner Avenue travelling westbound. This contradicts the

evidence that when he initially radioed into dispatch, he stated that he was at Altamont

and Chestnut.

       {¶25} We find, based on the foregoing, that there is a genuine issue of material

fact as to whether appellant Goodman was on an “emergency call” at the time and that,

therefore, the trial court did not err in denying appellants’ Motion for Summary Judgment.

       {¶26} Appellants’ first and second assignments of error are, therefore, overruled.

                                             III

       {¶27} Appellant, in his third assignment of error, argues that the trial court erred

in adopting the affidavit of appellee’s counsel as the only evidence creating a question of

fact on the issue of wanton or willful conduct.

       {¶28} We find, however, that there was other evidence supporting the trial court’s

conclusion that there was a genuine issue of material fact as to whether or not appellant

Goodman’s conduct was wanton and reckless. Appellant Goodman approached appellee



from and provided by the opposing party during discovery. Stumpff v. Harris, 2015-
Ohio-1329, 31 N.E.3d 164, ¶ 32 (2d Dist.).
Richland County, Case No. 2019 CA 0109                                              11


McConachie’s vehicle from the rear and, as is stated above, there is a question of fact as

to whether or not he activated his lights and sirens. In his affidavit, he never stated that

he slowed down as he attempted to turn left onto Sturges Avenue. Nor did appellant

Goodman use an air horn. There is a question of fact as to whether appellee McConachie

was warned of the presence of the police cruiser. Moreover, as noted by the trial court, if

he was turning, there is material question of fact as to whether or not he was traveling too

fast to make the turn.

       {¶29} Based on the foregoing, appellant’s third assignment of error is, therefore,

overruled.
Richland County, Case No. 2019 CA 0109                                      12


       {¶30} Accordingly, the judgment of the Richland County Court of Common Pleas

is affirmed.

By: Baldwin, J.

Hoffman, P.J. and

Wise, Earle, J. concur.
