[Cite as Taylor v. Cleveland, 2012-Ohio-3369.]



                Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 97597




                        TIVANNI M. TAYLOR, ET AL.
                                                       PLAINTIFFS-APPELLEES

                                                 vs.


                        CITY OF CLEVELAND, ET AL.

                                                       DEFENDANTS-APPELLANTS




                                  JUDGMENT:
                            AFFIRMED AND REMANDED


                                     Civil Appeal from the
                              Cuyahoga County Common Pleas Court
                                     Case No. CV-730639

        BEFORE:           Boyle, P.J., Sweeney, J., and Jones, J.

        RELEASED AND JOURNALIZED:                      July 26, 2012
ATTORNEYS FOR APPELLANTS

Barbara A. Langhenry
Interim Director of Law
Catherine Ma
Assistant Director of Law
Room 106-City Hall
601 Lakeside Avenue
Cleveland, Ohio 44114-1077


ATTORNEY FOR APPELLEES

Thomas J. Silk
Obral, Silk & Associates
1370 Ontario Street
1520 Standard Building
Cleveland, Ohio 44113
MARY J. BOYLE, P.J.:

       {¶1} Defendant-appellant, city of Cleveland (“City”), appeals from a trial court

judgment denying its motion for summary judgment on the basis of political subdivision

immunity.     It raises four assignments of error for our review:

       “[1.] The trial court erred in holding that Officer Roger Prettyman was not

responding to an emergency call when he was responding to a call to duty to transport a

prisoner to the hospital as part of his professional obligation.

       “[2.] The trial court erred in holding that there was a question of fact as to

whether Officer Prettyman’s actions constituted willful and wanton misconduct.

       “[3.] The trial court erred in holding that [R.C.] 4511.03(A) did not apply to the

facts in this case.

       “[4.] The trial court erred in holding that appellee’s newly-pleaded claim in the

re-filed complaint of wanton or willful misconduct is not time-barred.”

       {¶2} Although we find some merit to the City’s appeal, we affirm the trial

court’s denial of the City’s summary judgment motion and remand.

                        Procedural History and Factual Background

       {¶3} In April 2007, plaintiff-appellee, Tivanni Taylor, was driving east on

Prospect Avenue in Cleveland, Ohio when she was involved in a collision at the

intersection of Prospect Avenue and East 30th Street with a City police vehicle operated

by Officer Roger Prettyman. Officer Prettyman was driving south on East 30th Street.
There is a flashing light at this intersection. It is undisputed that the light was flashing

yellow in Taylor’s favor and flashing red for Officer Prettyman. It is undisputed that

Officer Prettyman did not stop at the intersection nor did he activate his lights or sirens

as he drove through the intersection. At the time of the collision, Officer Prettyman

was transporting a prisoner to the hospital for medical treatment in response to orders

received from police dispatch.

       {¶4} Taylor and her minor daughter filed a complaint against the City in March

2009, but voluntarily dismissed it seven months later. Taylor and her minor daughter

refiled their complaint against the City in June 2010, alleging, inter alia, that Officer

Prettyman failed to stop his vehicle when he could see that danger to Taylor was

imminent and operated his vehicle at excessive speed.     Taylor claimed that the City was

liable because of the alleged negligent or willful and wanton operation of a vehicle by

Officer Prettyman.

       {¶5} The City moved for summary judgment, arguing that it was entitled to the

protection of immunity under R.C. Chapter 2744. Taylor filed a brief in opposition.

The trial court found in favor of Taylor. It is from this judgment that the City filed an

interlocutory appeal according to Hubbell v. Xenia, 115 Ohio St.3d 77, 2007-Ohio-4839,

873 N.E.2d 878, syllabus, claiming the trial court denied it the benefit of immunity.

                              Summary Judgment Standard

       {¶6} An appellate court reviews a decision granting summary judgment on a de

novo basis.   Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241
(1996). Summary judgment is properly granted when (1) there is no genuine issue as to

any material fact, (2) the moving party is entitled to judgment as a matter of law, and (3)

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. Harless v. Willis Day

Warehousing Co., 54 Ohio St.2d 64, 66, 375 N.E.2d 46 (1978).

                                     R.C. Chapter 2744

       {¶7} The Supreme Court set forth a three-tiered analysis to determine whether a

political subdivision is immune from tort liability: the first tier is to establish immunity

under R.C. 2744.02(A)(1); the second tier is to analyze whether any of the exceptions to

immunity under R.C. 2744.02(B) apply; if so, then under the third tier, the political

subdivision has the burden of showing that one of the defenses of R.C. 2744.03 applies.

Cater v. Cleveland, 83 Ohio St.3d 24, 28, 697 N.E.2d 610 (1998); Hubbard v. Canton

City School Bd. of Edn., 97 Ohio St.3d 451, 2002-Ohio-6718, 780 N.E.2d 543, ¶ 10-12.

If a defense applies, then immunity is reinstated. Id.

       {¶8} R.C. 2744.02(A)(1) provides a general grant of immunity as follows: “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.” A governmental function includes “provision or nonprovision of

police.”   R.C. 2744.01(C)(2)(a).
         {¶9} R.C. 2744.02(B) lists five exceptions to the general immunity granted to

political subdivisions under R.C. 2744.02(A)(1).          See Ryll v. Columbus Fireworks

Display Co., 95 Ohio St.3d 467, 470, 2002-Ohio-2584, 769 N.E.2d 372, ¶ 25. The

subsection pertinent to this case, R.C. 2744.02(B)(1), subjects a political subdivision to

liability for “negligent operation of any motor vehicle by their employees when the

employees are engaged within the scope of their employment and authority.”

         {¶10} But a political subdivision is entitled to a “full defense” against liability for

an employee’s negligent operation of a motor vehicle if (1) a “member of a municipal

corporation police department” was operating a motor vehicle while responding to an

emergency call, and (2) the operation of the vehicle did not constitute willful or wanton

misconduct. R.C. 2744.02(B)(1)(a).

                                        Emergency Call

         {¶11} In its first assignment of error, the City argues that the trial court erred

when it found that Officer Prettyman was not responding to an emergency call. We

agree.

         {¶12} The issue of whether an officer is on an “emergency call” may be

determined as a matter of law where triable questions of fact are not present. Howe v.

Henry Cty. Commrs., 167 Ohio App.3d 865, 2006-Ohio-3893, 857 N.E.2d 664, ¶ 13,

citing Lewis v. Bland, 75 Ohio App.3d 453, 457, 599 N.E.2d 814 (1991).

         {¶13} R.C. 2744.01(A) defines “emergency call” 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.”

         {¶14} The Ohio Supreme Court defined “call to duty” to mean “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, 2003-Ohio-3319, 790 N.E.2d

781, ¶ 13, citing Webster’s Third New International Dictionary 705 (1986). Thus, the

Supreme Court did not limit calls to duty to “inherently dangerous” situations. Id. at ¶

13-14.     Instead, it adopted a broad interpretation of “call to duty” and stated that it

included situations “to which a response by a peace officer is required by the officer’s

professional obligation.” Id.

         {¶15} In Rutledge v. O’Toole, 8th Dist. No. 84843, 2005-Ohio-1010, a police

officer was told by his supervisor to transport an arrestee to another jurisdiction.

During transport, the officer pulled into an intersection and his police cruiser was struck

by a drunk driver.      The arrestee was injured in the accident and brought suit against the

drunk driver, the officer, and the city. This court held that the city was immune from

liability, reasoning:

                We find that the transport of an arrestee to another jurisdiction
         constitutes an “emergency call,” given the wording of R.C. 2744.01(A) and
         the Ohio Supreme Court’s definition in Colbert. Using the same
         reasoning applied by the Ohio Supreme Court in Colbert, which concluded
         that an “emergency call” need not be an “inherently dangerous” situation,
         we hold an immediate or exigent circumstance is not needed to constitute
         an “emergency call” in a transport situation. During a transport, an
         officer is responding to a call to duty, fulfilling his professional obligation.

Id. at ¶ 25.
       {¶16} Taylor contends that Officer Prettyman was not on an emergency call.

She cites to Spain v. Bentleyville, 8th Dist. No. 92378, 2009-Ohio-3898, in support of

her argument.   But Spain is distinguishable from the instant case. In Spain, the police

officer was on basic, routine patrol; he was not responding to a police dispatch.   Id. at ¶

12. This court even explained in Spain that if the officer had been responding to a

police dispatch, such as transporting a prisoner, we would have found that he was

responding to an emergency call for purposes of political subdivision immunity. Id. at

¶ 11, citing Rutledge, 2005-Ohio-1010, and Rambus v. Toledo, 6th Dist. No. L-07-1378,

2008-Ohio-4283.

       {¶17} Accordingly, we conclude that in this case, the trial court erred when it

determined that Officer Prettyman was not responding to an emergency call.          Officer

Prettyman was transporting a prisoner, fulfilling his professional obligation. Thus, as a

matter of law, Officer Prettyman was responding to an emergency call for purposes of

political subdivision immunity.

       {¶18} The City’s first assignment of error is sustained.

                             Willful and Wanton Misconduct

       {¶19} The City’s second and third assignments of error are related, and thus, will

be addressed together. In its second assignment of error, the City argues that the trial

court erred when it found that genuine issues of material fact remain regarding whether

Officer Prettyman operated his vehicle in a wanton or willful manner. In its third

assignment of error, the City contends that the trial court erred when it found that R.C.
4511.03 did not apply to the facts of this case because under this statute, Officer

Prettyman did not have to stop at the intersection.1

           {¶20} “Wanton misconduct” has been defined as “the failure to exercise any care

toward one to whom a duty of care is owed when the failure occurs under circumstances

for which the probability of harm is great and when the probability of harm is known to

the tortfeasor.” Brockman v. Bell, 78 Ohio App.3d 508, 515, 605 N.E.2d 445 (1st

Dist.1992).

           {¶21} “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 purposely doing wrongful acts with knowledge or appreciation of

the likelihood of resulting injury.” Id.

           {¶22} Typically, issues regarding wantonness or willfulness are questions for the

jury to decide; however, the standard for showing such conduct is high.             Cunningham v.

Akron, 9th Dist. No. 22818, 2006-Ohio-519, ¶ 24. Thus, when the facts presented show

that reasonable minds could not conclude that the conduct at issue meets that high

standard, a court may determine that such conduct is not willful or wanton as a matter of

law and that determination is made considering the circumstances of each case. Ybarra




        R.C. 4511.03(A) provides “[t]he driver of any emergency vehicle or public safety vehicle,
       1


when responding to an emergency call, upon approaching a red or stop signal or any stop sign shall
slow down as necessary for safety to traffic, but may proceed cautiously past such red or stop sign or
signal with due regard for the safety of all persons using the street or highway.”
v. Vidra, 6th Dist. No. WD-04-061, 2005-Ohio-2497, ¶ 10, citing Reynolds v. Oakwood,

38 Ohio App.3d 125, 127, 528 N.E.2d 578 (2d Dist.1987).

       {¶23} According to an authenticated police report attached to the City’s summary

judgment motion, Officer Prettyman stated at the scene that he was driving south on East

30th Street as he approached the intersection at Prospect Avenue.          He said that he

“slowed as he entered the intersection at Prospect Avenue did not observe any traffic,

[and] continued operating through the intersection.”

       {¶24} Officer Darryl Moore, who was a passenger in Officer Prettyman’s vehicle,

stated that “we approached what seem[ed] to be a 4-way light at Prospect Ave.”

Officer Moore further explained that they “approached with cautio[n] and continued

across the intersection.”

       {¶25} Taylor responded to the City’s motion for summary judgment by attaching

her own affidavit, as well as Ronald Richardson’s affidavit.          Richardson was the

prisoner officers Prettyman and Moore were transporting to the hospital when the

collision occurred.   Taylor averred that she was traveling “at or below the posted speed

limit” when she approached the intersection of Prospect Avenue and East 30th Street.

Having a flashing yellow light in her favor, she proceeded with caution through the

intersection.   As she did, she said that she saw “another vehicle approaching from [her]

left at what appeared to be a high rate of speed.”   Taylor further averred that the vehicle

“did not stop at the intersection, but travelled through the intersection, again, at what

appeared to be a high rate of speed.”
       {¶26} Richardson averred that “Officer Prettyman did not stop or otherwise slow

down at the intersection and proceeded through the intersection.”       Richardson further

averred that “it is clear that the police officer did not slow or stop for the flashing red

traffic signal, and this was the cause of the accident.”

       {¶27} After reviewing the record before us, we agree with the City that R.C.

4511.03(A) applies to the facts of this case. Officer Prettyman did not have to stop at

the intersection because he was on an emergency call.      But under this statute, he was

still required to “slow down as necessary for safety to traffic,” and “proceed cautiously

past such red [light] or stop sign or signal with due regard for the safety of all persons

using the street or highway.” Viewing the facts in the present case in the light most

favorable to Taylor, this court finds that questions of fact remain as to whether Officer

Prettyman heeded the cautions set forth in R.C. 4511.03(A) or whether he traveled

through the intersection at a high rate of speed, without slowing down. According to

officers Prettyman and Moore, Officer Prettyman approached the intersection with

caution.   Taylor and Richardson, however, claim that Officer Prettyman was traveling

at a high rate of speed and did not slow down as he traveled through the intersection.

Based upon these conflicting facts, we conclude that it is for a jury to determine whether

Officer Prettyman operated his vehicle in a willful or wanton manner.

       {¶28} We acknowledge that this court has already ruled in favor of the City

regarding a complaint against it based on this exact incident.        Breon Stevenson, a

passenger in Taylor’s vehicle when it collided with Officer Prettyman’s police cruiser,
brought an action against the City and Officer Prettyman.    See Stevenson v. Prettyman,

193 Ohio App.3d 234, 2011-Ohio-718, 951 N.E.2d 794 (8th Dist.). In Stevenson, the

trial court had denied the City’s and Officer Prettyman’s summary judgment motion on

the basis of sovereign immunity.     This court reversed because we found that “after

reviewing the record, * * * Stevenson failed to meet her reciprocal burden of setting

forth a genuine issue of material fact regarding whether Officer Prettyman’s actions were

wanton and reckless.” Id. at ¶ 52. We found it significant that Stevenson did not

counter Officer Prettyman’s statements that he proceeded cautiously through the

intersection.   We further pointed that Stevenson did not “even claim that [Officer

Prettyman] was traveling at a high rate of speed through the intersection, or even

mention his speed at all.” Id. at ¶ 48.   Here, however, Taylor has not only presented

her own affidavit asserting that Officer Prettyman was traveling at a high rate of speed,

but has also submitted Richardson’s affidavit stating that Officer Prettyman did not slow

down as he proceeded through the intersection.

       {¶29} Accordingly, we overrule the City’s second assignment of error.         And

although we agree with the City that R.C. 4511.03(A) applies to the facts of this case, we

overrule its third assignment of error and conclude that genuine issues of material fact

remain as to whether Officer Prettyman proceeded through the intersection with caution

or at a high rate of speed.

                                  Statute of Limitations
       {¶30} In its fourth assignment of error, the City raises the defense of statute of

limitations.   This court, however, does not have jurisdiction to address the City’s

arguments regarding its statute of limitations defense. Riscatti v. Prime Properties Ltd.

Partnership, 8th Dist. Nos. 97270 and 97274, 2012-Ohio-2921, ¶ 20.

       {¶31} Judgment denying the City’s motion for summary judgment is affirmed and

remanded.

       It is ordered that appellees and appellants share costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to said 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.




MARY J. BOYLE, PRESIDING JUDGE

JAMES J. SWEENEY, J., and
LARRY A. JONES, SR., J., CONCUR
