[Cite as Upman v. Lucas Cty. Bd. of Commrs., 2016-Ohio-7884.]




                           IN THE COURT OF APPEALS OF OHIO
                               SIXTH APPELLATE DISTRICT
                                    LUCAS COUNTY


Paul Jeffrey Upman, etc.                                 Court of Appeals No. L-16-1044

        Appellee                                         Trial Court No. CI0201402706

v.

Lucas County/Board of Lucas County
Commissioners, et al.                                    DECISION AND JUDGMENT

        Appellants                                       Decided: November 23, 2016

                                                *****

        Charles E. Boyk, Michael A. Bruno, and Wesley D. Merillat, for appellee.

        Frank H. Scialdone and Cara M. Wright, for appellants.

                                                *****

        OSOWIK, J.

        {¶ 1} This is an appeal from a February 11, 2016 judgment of the Lucas County

Court of Common Pleas, denying summary judgment to appellants Lucas County and the

Board of Lucas County Commissioners. For the reasons set forth more fully below, this

court affirms the judgment of the trial court.
       {¶ 2} Appellant, Paul Jeffrey Upman, as guardian, sets forth the following

assignment of error:

       {¶ 3} THE TRIAL COURT ERRED WHEN IT DENIED DEFENDANT LUCAS

COUNTY/BOARD OF LUCAS COUNTY COMMISSIONERS THE BENEFIT OF

IMMUNITY UNDER OHIO REVISED CODE CHAPTER 2744.

       {¶ 4} The following undisputed facts are relevant to this appeal. On February 1,

2014, Lucas County was under a Level 3 snow emergency due to an ongoing winter

storm. On February 1, 2014, Deputy Luis Gonzales (“Gonzales”) of the Lucas County

Sheriff’s Department was on duty during the first shift in the course and scope of his

employment at the county jail.

       {¶ 5} Despite the extreme, inclement weather and an official snow emergency

being in effect, Gonzales took a Sheriff’s Department van and began to drive to an area

McDonald’s to purchase food. While driving across a bridge on Summit Street over a

creek approximately 35 feet below the bridge, Gonzales lost control of his vehicle, the

vehicle spun out of control, went across multiple lanes of traffic, hit the curb, and skid to

a stop positioned in the opposite direction of which the vehicle had originally been

travelling.

       {¶ 6} Following the loss of control and accident, Gonzales remained in the vehicle

and began to compose himself. A woman who had been driving at that time in that

location witnessed the incident. The witness approached Gonzales and advised him that

she was quite concerned as she had observed a male pedestrian walking on the bridge



2.
when Gonzales lost control of the vehicle but she no longer saw the man after the vehicle

spun to a stop.

       {¶ 7} At this point, Gonzales then exited his vehicle, looked over the side of the

bridge, and observed a badly injured man lying on the ice covered stream below the

bridge. Gonzales returned to his vehicle, called his dispatcher, advised that he had lost

control of his vehicle, and relayed that a fallen individual was below the bridge.

       {¶ 8} In the interim, several Toledo police officers out on patrol came upon the

scene of the accident. The officers approached Gonzales and inquired about the incident.

Gonzales advised them that there is a man on the ice below the bridge. Gonzales did not

advise them that he had lost control of his van and hit the bridge curb or that he had been

approached by an eyewitness who subsequently left the scene and whose name and

contact information he failed to obtain.

       {¶ 9} The Toledo police officers immediately summoned emergency rescue

personnel for the injured man. Upon further inquiry by the officers, Gonzales conveyed

that he had lost control of his motor vehicle on the bridge and spun out and that there had

been an eyewitness. Upon questioning, he also conveyed that he had not secured her

name or contact information.

       {¶ 10} Upon the arrival of rescue personnel at the scene, Gonzales immediately

returned to work, arranged to leave work early, and then went home. Gonzales did not

check on the status of the injured man. Gonzales was not cited for any traffic law

violations in connection to this accident.



3.
       {¶ 11} The injured man, a legally incompetent adult male represented by an

appointed guardian, was transported by emergency personnel to St. Vincent Mercy

Hospital. The injured man sustained multiple severe injuries, including a ruptured

spleen, collapsed lungs, numerous bone fractures, and cranial injuries including cranial

bleeds. Emergency surgery was performed.

       {¶ 12} Paul Jeffrey Upman, the father and court-appointed legal guardian of the

injured man, subsequently filed a negligence action against Gonzales, Lucas County, and

the Lucas County Board of County Commissioners.

       {¶ 13} Although Gonzales individually is entitled to statutory immunity, as

conceded by the plaintiff, R.C. 2744.02(B)(1) establishes that a government employer is

expressly liable for damages and injuries caused by an employees, “[N]egligent operation

of any motor vehicle * * * when engaged within the scope of employment.” An

exception to this statutory liability would be in the event that the employee was

responding to an emergency call at the time of the incident, which is not the scenario

presented in this case.

       {¶ 14} Following the filing of the underlying negligence complaint, the parties

engaged in lengthy and extensive discovery, including the taking of half a dozen

depositions in connection to this matter.

       {¶ 15} On October 1, 2015, appellants filed for summary judgment. In support,

appellants maintained that all named defendants are shielded from liability pursuant to

statutory immunity. In turn, appellee maintained the applicability of the R.C.



4.
2744.02(B)(1) statutory immunity exception in connection to Lucas County/Lucas

County Board of County commissioners.

       {¶ 16} On February 11, 2016, the trial court granted summary judgment, in part,

and denied summary judgment, in part. Specifically, Gonzales was granted summary

judgment based upon applicable statutory immunity, but summary judgment was denied

to Lucas County and the Board of County Commissioners. The trial court held in

pertinent part:

              Upon a review of the record, the Court concludes that reasonable

       minds could differ as to the proximate cause of Jeff’s injuries. Deputy

       Gonzales admitted that a passerby told him a pedestrian was on the bridge

       at the time he lost control of the van. Deputy Gonzales then immediately

       looked over the bridge and saw Jeff on the ice below the bridge in close

       proximity to where he said the van hit the curb. Further, Plaintiff’s expert,

       Robert G. Pachella, opined that Jeff was either struck by the van or fell

       from the bridge as a result of a behavioral reaction to avoid the van * * *

       [G]iven the admission by Deputy Gonzales that a passerby told him a

       pedestrian was on the bridge when he lost control of the van, the proximity

       in time and space, and expert opinion that it could have been Jeff and not

       the curb that was struck thereby propelling Jeff off the bridge, a jury could

       well find in favor of the plaintiff * * * [R]easonable minds can infer, as did

       officers Talton and Palicki, that Jeff jumped from the bridge to avoid being

       struck by the van * * * Therefore, construing all inferences and doubts in

5.
       favor of the plaintiff [non-moving party], the Court concludes that a

       genuine issue of material fact exists as to causation.

       {¶ 17} This appeal ensued.

       {¶ 18} In the sole assignment of error, appellants maintain that the trial court erred

in denying summary judgment to Lucas County/Lucas County Board of Commissioners.

We do not concur.

       {¶ 19} It is well-established that the standard of review governing summary

judgment rulings on appeal is de novo, applying the same standard as that utilized by the

trial court. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 671 N.E.2d 241 (1996). The

standard for summary judgment is delineated in Civ. R. 56(C). Granting summary

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

is entitled to judgment as a matter of law, and when construing the evidence in favor of

the nonmoving party, reasonable minds cannot differ as to judgment in favor of the

movant. Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 375 N.E.2d 46

(1978).

       {¶ 20} R.C. 2744.02(B)(1) governs the incident underlying this matter. It

establishes that political subdivisions, such as appellants, are encompassed by an

exception to statutory immunity pursuant to which liability in civil actions is imposed for

injuries and damages proximately caused by the negligent operation of a motor vehicle

by employees of the political subdivision acting in the course and scope of their

employment.



6.
          {¶ 21} We are not persuaded by appellants’ suggestions that the inability to

absolutely rule out a suicide attempt by the injured party or similar wholly unsupported

conjecture in any way compromises the propriety of the disputed summary judgment

ruling.

          {¶ 22} The record of evidence reflects that on February 1, 2014, Gonzales was in

uniform, on the job, and operating a motor vehicle owned by his employer. Gonzales

was in the course and scope of his employment. The record reflects the Gonzales elected

to drive the motor vehicle to an area fast food restaurant despite the snow emergency.

The record reflects that Gonzales lost control of his vehicle while driving across a bridge,

spun around multiple times across multiple lanes of traffic, struck something, and came

to rest in the opposite direction. The record reflects that an independent eyewitness

observed a male pedestrian on the bridge at the time Gonzales lost control of the vehicle

and no longer observed the pedestrian after the vehicle came to a stop. The record

reflects that a severely injured man was immediately discovered lying on the ice covered

creek below the bridge, in immediate proximity to the traffic incident. Assertions by

appellants that no genuine issue of material fact remains, and reasonable minds can only

conclude no proximate causation exists between the operation of the motor vehicle by

Gonzales and the man’s fall from the bridge and resulting injuries are wholly

unpersuasive.

          {¶ 23} On the contrary, we find that when construing the evidence most strongly

in favor of the nonmoving party, ample evidence exists in the record from which

reasonable minds could infer the negligent operation of a motor vehicle by Gonzales

7.
proximately caused the 35-foot fall and severe injuries sustained by the injured party. As

such, we find that the denial of summary judgment to appellants was proper.

       {¶ 24} Wherefore, the summary judgment ruling of the Lucas County Court of

Common Pleas is hereby affirmed. Appellants are ordered to pay the cost of this appeal

pursuant to App.R. 24.

       Judgment affirmed.



       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Thomas J. Osowik, J.
                                               _______________________________
Stephen A. Yarbrough, J.                                   JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE




8.
