      [Cite as Tufts Carter v. Hymes, 2020-Ohio-3967.]

                            COURT OF APPEALS OF OHIO

                           EIGHTH APPELLATE DISTRICT
                              COUNTY OF CUYAHOGA

DENISE TUFTS CARTER,                                     :
ADMINISTRATOR,
                                                         :
      Plaintiff-Appellee,                                    No. 108523
                                                         :
      v.
                                                         :
OFFICER HYMES, ET AL.,
                                                         :
      Defendants-Appellants.


                             JOURNAL ENTRY AND OPINION

              JUDGMENT: AFFIRMED IN PART; REVERSED IN PART
              RELEASED AND JOURNALIZED: August 6, 2020


           Civil Appeal from the Cuyahoga County Common Pleas Court
                              Case No. CV-18-892976


                                         Appearances:

              Friedman & Gilbert, Sarah Gelsomino, Jacqueline Greene,
              and Terry H. Gilbert, for appellee.

              Scott & Winters, and Joseph F. Scott, for appellants.


MICHELLE J. SHEEHAN, J.:

                Defendants-appellants Officers Adam Hymes and Shane McNea

appeal from a judgment of the Cuyahoga County Court of Common Pleas that denied

their motion for summary judgment in an action filed by plaintiff-appTufellee
Denise Tufts Carter (“appellee” hereafter) as the administrator of the estate of

Romero Brown. After a careful review of the record and applicable law, we affirm

the trial court’s judgment as to McNea but reverse the judgment as to Hymes.

Background

              In the early morning hours of August 17, 2016, Jonathan Grier drove

a stolen BMW through a red light at the intersection of East 116th Street and Shaker

Boulevard. The BMW collided with a vehicle driven by Romero Brown, who died at

the scene. Sometime before the crash, McNea and Hymes were in a zone car

following Grier’s vehicle in an attempt to determine if there were warrants

outstanding for the vehicle after spotting it at a closed gas station around 3:00 a.m.

McNea drove the zone car, and Hymes was responsible for operating the zone car’s

computer data unit and for the radio communication with the dispatch radio.

              Grier was charged with aggravated vehicular homicide, attempted

receiving stolen property, and failing to stop after an accident. He pleaded guilty to

all three charges and was sentenced to four years of imprisonment. He admitted he

was high on marijuana on the night of the incident. The toxicology report shows

Brown himself was also under the influence of marijuana.

              The Cleveland Police Department conducted an investigation of the

incident and subsequently initiated disciplinary proceedings against both officers in

February 2017. The two officers were charged with engaging in an unauthorized

vehicle pursuit in violation of the department’s pursuit policy and being untruthful

during the interview with the police department Inspection Unit. In March 2017, a
disciplinary hearing took place before Director of Public Safety Michael McGrath.

After the hearing, Director McGrath dismissed the charges against both officers for

insufficient evidence. No discipline was imposed on either officer.1

              A year later, in February 2018, appellee filed the instant action as the

administrator of the estate of Romero Brown against McNea, Hymes, and Grier,

asserting three claims: (1) willful, wanton, reckless, and negligent conduct;

(2) wrongful death pursuant to R.C. 2125.02; and (3) survivorship action pursuant

to R.C. 2305.21.

              Appellants moved for summary judgment, claiming immunity

pursuant to R.C. 2744.02. They also claimed their conduct was not the proximate

cause of the accident leading to Brown’s death and that there was no evidence that

Brown experienced conscious pain and suffering in support of a survivorship claim.

The exhibits attached to their motion for summary judgment included the Police

Field Report for the incident, an expert report, and a radio dispatch tape.

              Appellee opposed the officers’ motion for summary judgment,

attaching as exhibits the police department’s charging letters issued to the two

officers, the report of Sergeant Morales from the police department’s Inspection

Unit, the transcript of the disciplinary hearing against the two officers, the GPS

maps showing Morales’s notation for the zone car’s speed at different points on



      1 Although the charges were dismissed and the officers were not disciplined for
their conduct for the incident, both officers received a “Letter of Reinstruction,” which
instructed the officers that they “should have notified the Communications Control
Section that the suspect vehicle fled from [them] at a high rate of speed.”
East 116th Street, the Cleveland Police Department’s Pursuit Policy, and an expert

report.

Police Field Report Regarding the Incident

             In the Police Field Report, Hymes provided a written statement

regarding the incident, which was signed by both Hymes and McNea. It states:

      On 8/17/2016 at 0306 hrs while assigned to z/c 4A36 in company with
      P.O. McNea #779 while patrolling the area we observed a suspicious
      vehicle [FA JMA0715] at E. 116/Kinsman. We got behind it and the
      vehicle continued traveling North on E. 116 at a normal rate of speed.
      As we ran the license plate over channel 4 the vehicle began to pick up
      speed without us attempting any type of traffic stop. While we were
      waiting for radio to give us the license plate information the vehicle
      ran the red light at E. 116 and Shaker and crashed into another vehicle
      [ROMERO]. After clearing the intersection at E. 116 and Buckeye, we
      approached the crash scene and observed two males running from the
      suspect vehicle North West through the field. We immediately
      checked the driver of the victim’s vehicle and notified radio to send
      EMS and fire [truck]. We were unable to get to the victim to perform
      first aid. * * *

Radio Dispatch Tape

             The radio dispatch tape, attached as an exhibit to appellants’ motion

for summary judgment, recorded Hymes’s communication with dispatch over the

radio. He was first heard broadcasting the license plate number of the suspect

vehicle — which lasted 18 second — and 20 seconds later he was heard reporting the

crash at the Shaker Boulevard intersection. A total of 38 seconds elapsed between

the moment Hymes started to broadcast the plate number and the moment Hymes

reported the incident, and there was 20 seconds of silence between the broadcasting.

Cleveland Police Department’s Vehicular Pursuit Policy
                Pursuant to the Cleveland Police Department’s vehicle pursuit policy,

a vehicle pursuit “occurs when there is an active attempt by an officer in an

authorized emergency vehicle to apprehend a suspect who is attempting to elude the

police.” Furthermore, officers may initiate a vehicle pursuit when the suspect

operating the vehicle “refuses to stop at the officer’s direction and flees

apprehension for an actual or alleged (1) VIOLENT FELONY; or (2) Operating a

Vehicle Intoxicated (OVI).” In addition, officers in a vehicle pursuit must comply

with R.C. 4513.21 (“Horns, sirens, and warning devices”).2             Furthermore, the

pursuing officer has the duty to notify the police department’s Communications

Control Section that a pursuit is underway and provide the reason for the pursuit,

the direction of travel, information about the vehicle, and the speeds involved.

The Police Department’s Internal Investigation: Sergeant Morales’s
Report

                Sergeant Morales of the Inspection Unit reviewed the radio dispatch

tape and the officers’ body camera footage and interviewed the two officers.




      2   R.C. 4513.21 states, in pertinent part:

      Every emergency vehicle shall be equipped with a siren, whistle, or bell,
      capable of emitting sound audible under normal conditions from a distance
      of not less than five hundred feet and of a type approved by the director of
      public safety. Such equipment shall not be used except when such vehicle
      is operated in response to an emergency call or is in the immediate pursuit
      of an actual or suspected violator of the law, in which case the driver of the
      emergency vehicle shall sound such equipment when it is necessary to warn
      pedestrians and other drivers of the approach thereof.
              Hymes told Morales in the interview that he and his partner observed

a suspicious vehicle at a closed gas station at East 116th Street and Kinsman Road.

They began following the vehicle north bound on East 116th Street and ran the

license plate. The vehicle then sped away from the officers at a high rate of speed.

The zone car then attempted to catch up to the auto. He observed the vehicle pass

through a red light at East 116th Street and Buckeye Road, still traveling at a high

rate of speed. Because the suspect vehicle was traveling recklessly, the zone car

“slowed way down” and stopped following it all together. From Buckeye Road, he

saw the suspect vehicle, still speeding, run the red light at Shaker Boulevard

and collide with another vehicle. When asked why they did not inform dispatch that

the vehicle had sped away, Hymes stated that they were waiting for dispatch to give

them back the information.

              McNea told Morales in the interview that the suspect vehicle sped

away around Zelma George Recreation Center (around Imperial Avenue) and, when

it sped away, he did not attempt to catch up to the suspect vehicle. McNea estimated

he was travelling between 60-70 m.p.h. The officers did not notify dispatch when

the vehicle fled from them “because it happened so fast.” McNea insisted they were

not attempting to pursue the suspect vehicle but only attempted to obtain its license

plate number. McNea also stated the lights and siren were not activated because

“the suspect auto was too far ahead and they did not have any information on the

radio at that point.”
              Based on the police department’s “AVL,” which is a data system

capable of showing a zone car’s speed every ten seconds, Morales prepared a “GPS

Map-Logs” (plaintiff’s exhibit No. 4). It showed the zone car’s speed at 32 m.p.h. at

Kinsman Road, which increased to 46 m.p.h. at Soika Avenue, 59 m.p.h. at Parkview

Avenue, 70 m.p.h. at Harvey Avenue, a block from Buckeye Road, and slowed down

to 54 m.p.h. at Buckeye Road. The zone car continued at 54 m.p.h. to the crash site

at Shaker Boulevard. McNea’s body camera, however, shows that after the officers

arrived at the crash site, McNea was heard saying to another officer at the scene that

“we came to a complete stop to clear the intersection at Buckeye.”            Morales

concluded that the officers conducted an unauthorized pursuit of the BMW.

The Disciplinary Hearing

              Morales testified at the officers’ disciplinary hearing that the officers

should have disengaged altogether after they obtained the license plate number yet

they continued to follow the suspect vehicle at a high rate of speed. Morales testified

that, based on his review of the “AVL,” the zone car hit a top speed of 70 m.p.h. just

before Buckeye Road. He opined that the officers were conducting a pursuit because

the zone car was traveling at a high rate of speed following the suspect car. He

faulted the officers for not informing dispatch that they were pursuing a suspect

vehicle and also believed the officers were not completely truthful during his

investigation of the incident.

The Officers’ Deposition Testimony
              Hymes testified in his deposition that the suspect BMW pulled out of

the gas station and went north at a normal speed. The officers’ vehicle followed it,

and there were no vehicles in between. The BMW stopped at the red light at East

116th Street and Kinsman Road. Their police vehicle stopped as well. Hymes

attempted to enter the BMW’s Pennsylvania license plate number into the zone car’s

computer, which was operating slowly. When Hymes was still working on getting

more information about the plate, the light turned green. Because Hymes did not

write down the license plate number and it would be easier for him to obtain further

information regarding the out-of-state license plate through the radio, McNea tried

to catch up to the BMW so that Hymes could read the license plate number over the

radio to dispatch. Hymes testified that they wanted to check the BMW for warrants

because it was a dangerous neighborhood. He testified:

      Once we got the license plate, we slowed down. But we kept it in sight
      waiting for radio to let us know how it came back. [We want to know:]
      [d]id it come back with any warrants or was it wanted anywhere?

      We slowed down and kept it in sight. We observed it run a red light
      at Buckeye and we stayed slow but kept it in sight. We were still
      waiting to hear back from radio. And shortly after we went through
      the intersection of Buckeye, we observed a crash at Shaker.

             McNea testified that he slowed down significantly — with the tires

screeching — at the red light at the Buckeye intersection. He did not come to a

complete stop at the intersection but instead proceeded slowly through it after

“clearing” the intersection. McNea testified that he did not turn on the emergency

lights and siren because at the time he was still waiting for information on the
suspect vehicle from dispatch to determine whether they were going to stop the

vehicle. McNea acknowledged that if an officer is in a vehicle pursuit, the lights and

siren should have been activated. He testified, however, that he was not in pursuit

of the BMW because, under the police policy, a pursuit would be allowed only for a

violent felony and an OVI.

The Experts

              The officers’ expert William Eschenfelder submitted an affidavit and

attached his accident reconstruction report. He estimated that at the time of the

crash, the zone car was approximately 1,000 feet behind the BMW, near the Buckeye

intersection. Eschenfelder concluded that even if the lights and siren had been

activated, it would not have alerted Brown to the hazard of the oncoming BMW.

Plaintiff’s expert, Geoffrey Alpert, was deposed and opined that the actions of

defendants Hymes and McNea in pursuing a suspicious vehicle at high rates of

speed, against a red light, and without activating their emergency lights or sirens,

was reckless, dangerous, and fell below generally accepted standards of policing.

              The trial court concluded that reasonable minds could conclude the

defendant officers acted in a wanton or reckless manner, their conduct was the

proximate cause of the accident, and the victim suffered pain and suffering prior to

unconsciousness.

              This appeal follows. The officers raise two assignments of error. They

state:
      The trial court erred when it denied Defendants-Appellants’ motion
      for summary judgment on the basis of R.C. 2744.02 immunity.

      The trial court erred when it failed to separately consider Plaintiff-
      Appellee’s claims against each of the Defendants-Appellants.

Summary Judgment Standard

              Summary judgment is appropriate where: (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,

who is entitled to have the evidence construed most strongly in his or her favor.

Harless v. Willis Day Warehousing Co., Inc., 54 Ohio St.2d 64, 66, 375 N.E.2d 46

(1978); Civ.R. 56(C).

              Civ.R. 56(C) states that summary judgment shall be rendered 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.” We review a trial court's

grant of summary judgment de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d

102, 105, 671 N.E.2d 241 (1996).
               On appeal, appellants only present the issue of immunity for our

review.3 Under the first assignment of error, they argue the trial court erred when

it denied their motion for summary judgment on the basis of R.C. 2744.02

immunity. Under the second assignment of error, Hymes argues that, regardless of

McNea’s liability, he, as a passenger in the zone car who was responsible for

communicating with the radio dispatch and operating the computer data unit, did

not act recklessly and is entitled to immunity. For ease of discussion, we address the

two assignments of error together.

Statutory    Political          Subdivision          Immunity          Pursuant         to
R.C. 2744.03(A)(6)(b)

               Hymes and McNea contend that they are immune from liability under

R.C. 2744.03(A)(6)(b) and the trial court erred in denying their motion for summary

judgment. Ohio’s Political Subdivision Tort Liability Act (R.C. Chapter 2744)

absolves political subdivisions employees, including police officers, of tort liability,

subject to certain exceptions. Pursuant to R.C. 2744.03(A)(6)(b), an employee of a




      3  Although the appellee’s brief and appellants’ reply brief additionally argue the
issue of proximate causation, we note that “[a]n appeal from a denial of summary
judgment based on sovereign immunity is limited to the review of alleged errors in the
portion of the trial court’s decision that denied the political subdivision the benefit of
immunity.” Reinhold v. Univ. Hts., 8th Dist. Cuyahoga No. 100270, 2014-Ohio-1837,
¶ 21, citing Riscatti v. Prime Properties Ltd. Partnership, 137 Ohio St.3d 123,
2013-Ohio-4530, 998 N.E.2d 437, ¶ 20. Our review is limited to the issue of immunity.
See also CAC Bldg. Properties, L.L.C. v. Cleveland, 8th Dist. Cuyahoga No. 91991,
2009-Ohio-1786, ¶ 9, fn. 1, citing under R.C. 2744.02(C) (“An order that denies a political
subdivision or an employee of a political subdivision the benefit of an alleged immunity
from liability as provided in this chapter or any other provision of the law is a final
order.”).
political subdivision is immune from liability unless the employee’s “acts or

omissions were with malicious purpose, in bad faith, or in a wanton or reckless

manner.”    This standard applies to law-enforcement officers as well as other

employees of political subdivisions. See Fabrey v. McDonald Village Police Dept.,

70 Ohio St.3d 351, 356, 639 N.E.2d 31 (1994). Appellee contends the trial court

properly denied appellants’ motion for summary judgment on immunity grounds

pursuant to R.C. 2744.03(A)(6)(b) because the circumstances in this case create a

genuine issue of fact as to whether the officers’ actions were reckless.

              The Ohio Supreme Court has defined reckless conduct as conduct

“characterized by the conscious disregard of or indifference to a known or obvious

risk of harm to another that is unreasonable under the circumstances and is

substantially greater than negligent conduct.” Anderson v. Massillon, 134 Ohio

St.3d 380, 2012-Ohio-5711, 983 N.E.2d 266, paragraph four of the syllabus.

Recklessness “necessarily requires something more than mere negligence.” O’Toole

v. Denihan, 118 Ohio St.3d 374, 2008-Ohio-2574, 889 N.E.2d 505, ¶ 74, citing

Fabrey at 356.

              Appellee claims the officers engaged in a vehicle pursuit.          In

evaluating an officer’s conduct in vehicular pursuit cases, courts have taken into

consideration factors such as:

      the speed limit of the road, the speed the officer was traveling,
      whether the officer was traveling in the wrong lane, the time of day,
      the weather, the officer’s familiarity with the road, the extent to which
      there were other vehicles on the road, whether the officer attempted
      to pass the pursued vehicle or force it from the road, the nature and
      seriousness of the offense(s) allegedly committed by the suspect,
      whether there was a safer alternative than continuing the pursuit,
      whether the officer admitted to disregarding the consequences of his
      actions, whether the officer’s lights and sirens were activated and
      whether the political subdivision had a pursuit policy and, if so,
      whether that policy was followed.

Gates v. Leonbruno, 2016-Ohio-5627, 70 N.E.3d 1110, ¶ 40 (8th Dist.).

Analysis

             It is undisputed that when the two officers were patrolling in the area

of East 116th Street and Kinsman Road in a marked Cleveland police car at

3:00 a.m., they saw a BMW, which was later confirmed to be a stolen vehicle,

stopped in a closed gas station near East 116th Street and Kinsman. McNea pulled

into the gas station to investigate. As he did, the BMW pulled out and headed

northbound on East 116th Street. The BMW began to speed, and the zone car

followed it in increasingly high speed, without activating its emergency lights and

siren. The BMW ran a red light in the intersection of East 116th Street and Buckeye

Road; the zone car, slowing down at the intersection, proceeded through the red

light as well. Moments after, the BMW collided with a vehicle driven by Brown at

the intersection of East 116th Street and Shaker Boulevard.

              The parties dispute as to what occurred between the officers’ zone car

exiting the gas station to follow the BMW and the latter’s collision with Brown’s

vehicle. Appellee characterized the officers’ conduct as an unauthorized vehicle

pursuit in violation of the police department’s pursuit policy. The officers, while
acknowledging the high rate of speed the zone car was travelling, denied they were

engaged in a vehicle pursuit.

              In the officers’ account, after the BMW pulled out of the gas station,

Hymes attempted to input the BMW’s license plate number into the zone car’s

mobile computer unit to obtain information on the BMW. However, the unit was

operating slowly, so Hymes decided instead to radio dispatch with the license plate

number. As the BMW sped up, the zone car followed it to allow Hymes to read the

license plate number to dispatch. The officers then attempted to keep the BMW in

sight while waiting for dispatch to report back. The BMW ran the red light at East

116th Street and Buckeye Road at an excessive speed. The officers slowed down

before the intersection but proceeded through the red light. As soon as the zone car

traveled through the intersection, the BMW ran the red light at Shaker Boulevard

and collided with Brown’s vehicle. The officers explained that the emergency lights

and siren were not turned on because they were not attempting to stop the suspect

vehicle but only tried to keep sight of the vehicle while waiting for radio dispatch to

provide them with further information on the vehicle’s license plate.

              The officers contend that they are immune from liability because their

conduct did not rise to the level of reckless conduct: the traffic was light; they

followed the suspect vehicle from a distance; and the zone car slowed down to “clear”

the intersection before it proceeded through the intersection of East 116th and

Buckeye Road. They argue there was no evidence to support a finding of wanton or
reckless conduct as a mere 20 seconds elapsed between the time Hymes finished

radioing the plate information and the time officers notified dispatch of the collision.

              Appellee claims that both officers acted recklessly in engaging in an

unauthorized pursuit and failed to activate the zone car’s lights and siren during the

pursuit. Appellee argues that summary judgment is precluded because a reasonable

jury could find that both officers acted in conscious disregard or indifference to a

known risk of harm to other motorists and the indifference is unreasonable under

the circumstances.

              Based on the record before us, viewing the evidence in the light most

favorable to appellee, we conclude Hymes’s actions did not rise to the level of

recklessness. However, issues of fact exist regarding McNea’s conduct in operating

the zone car and whether a reasonable jury could find his actions were reckless.

Officer Hymes

              It is undisputed that McNea was in control of the zone car and Hymes

was responsible for communicating with the radio dispatch and operating the zone

car’s computer data unit. Hymes first attempted to use the data unit to obtain

information on the suspect vehicle. Because the unit was running slowly, he decided

to relate the vehicle’s license number to dispatch instead. In the officers’ account of

the event, McNea caught up to the BMW to allow Hymes to read the plate number.

Appellee alleges Hymes asked McNea to do so. Regardless of whether this is true,

McNea alone controlled the zone car and its speed. As to the emergency lights and

siren, McNea testified at his deposition that, as the driver of the zone car, he was
responsible for activating these devices and further that, while a passenger would

have the ability to operate the lights and siren, “it’s not how we operate.”

               Appellee also argues Hymes acted recklessly when he failed to

communicate over the radio the fact they were following a suspect vehicle that was

travelling in excess speed, in violation of the police department’s vehicle pursuit

policy. The police department’s pursuit policy requires the pursuing officers to

notify the Communication Control Section that a pursuit is underway. Even if the

zone car following the suspect vehicle is characterized as a pursuit, the Ohio

Supreme Court has held that a violation of departmental policy alone does not

equate to per se recklessness. Argabrite v. Neer, 149 Ohio St.3d 349, 2016-Ohio-

8374, 75 N.E.3d 161, ¶ 21. “Recklessness requires knowledge by the actor that his

‘conduct will in all probability result in injury.’” Id., citing O’Toole, 118 Ohio St.3d

374, 2008-Ohio-2574, 889 N.E.2d 505, paragraph three of the syllabus. When

asked at his interview with Morales why he did not inform dispatch that the vehicle

was speeding away from the zone car, Hymes explained that he was waiting for the

radio to return information on the plate number before further communication with

dispatch. Indeed, the evidence shows that the BMW and Brown’s vehicle collided

within 20 seconds of Hymes’s completion of broadcasting the BMW’s plate number

over the radio. His failure to report the status of the zone car during this short period

of time, even if it were a violation of the departmental policy regarding pursuit, did

not rise to the level of conscious disregard of or indifference to a known risk that was

unreasonable under the circumstances.
              Reviewing the evidence in the light most favorable to the plaintiff, we

conclude that reasonable minds could only conclude that Officer Hymes’s conduct

as a passenger of the zone car was not reckless and he was entitled to immunity

under R.C. 2744.03(A)(6). The trial court erred in denying his motion for summary

judgment on immunity grounds.

Officer McNea

              Citing the zone car’s speed, appellee characterizes McNea’s conduct

as engaging in an unauthorized vehicle pursuit. Appellee claims McNea acted

recklessly and violated the departmental pursuit policy in pursuing the BMW and

failed to activate the emergency lights and sirens during the pursuit.

              The Cleveland police departmental policy defines a vehicle pursuit as

“an active attempt by an officer in an authorized emergency vehicle to apprehend a

suspect who is attempting to elude the police.” Sergeant Morales characterized

McNea’s operation of the zone car in high speed following the suspect vehicle as a

pursuit and arguably operated the vehicle at speeds in excess of safe limits relative

to the conditions. McNea denied he was in pursuit of the suspect vehicle and

explained that he was only keeping up with the vehicle while waiting for dispatch to

return information on the suspect vehicle’s plate. As such, there is an issue of fact

as to whether McNea’s operation of the zone car constituted an unauthorized pursuit

in violation of departmental policy and in a reckless manner. While a violation of a

departmental policy enacted for the safety of the public is not per se wanton or

reckless conduct, it may be relevant to determining the culpability of a course of
conduct. Anderson, 134 Ohio St.3d 380, 2012-Ohio-5711, 983 N.E.2d 266, at

paragraph five of the syllabus.

               McNea testified that that he was not in pursuit of the BMW but only

speeding up to catch up to the vehicle in order to allow Hymes to read its license

plate. However, it appears from the AVL data that McNea continued to drive in

excessive speed to follow the suspect vehicle even after Hymes obtained the license

plate number, reaching a top speed of 70 mph before slowing down at the Buckeye

Road intersection. While McNea testified that he came to a screeching stop at the

red light at Buckeye Road, the AVL data shows the zone car’s speed at 54 mph at

that intersection. He did not activate the emergency lights and siren to warn the

other motorists of a speeding police vehicle following a fleeing vehicle, whether or

not it is characterized as a pursuit.

               Whether a political subdivision employee acted in a wanton or

reckless manner under R.C. 2744.03(A)(6)(b) is generally a question of fact for the

jury. Fabrey, 70 Ohio St.3d at 356, 639 N.E.2d 31; Miller v. Hace, 8th Dist.

Cuyahoga No. 102500, 2015-Ohio-3591, ¶ 17. See also Reynolds v. Oakwood, 38

Ohio App.3d 125, 127, 528 N.E.2d 578 (2d Dist.1987) (the line between reckless

conduct and ordinary negligence is often a fine one depending on the particular facts

of a case and therefore it is generally recognized that such issue is for the jury to

decide). Given the state of the evidence regarding Officer McNea’s conduct, we

conclude his following a suspect vehicle at a high speed, coupled with his lack of use

of the emergency lights and siren to warn the other motorists, created a genuine
issue of material fact as to whether his conduct was reckless. Id. at paragraph two

of the syllabus (although the use of the emergency lights and siren is a significant

factor on the issue of whether the police officer acted in a willful or wanton manner,

it is to be considered in conjunction with all the other circumstances). See also

Hardesty v. Alcantara, 2015-Ohio-4591, 48 N.E.3d 127, ¶ 49 (8th Dist.) (the trial

court properly found that genuine issues of material fact remained regarding

whether an officer’s actions during a pursuit of a suspect vehicle were wanton and

reckless under R.C. 2744.03(A)(6)(b).)       Viewing the evidence in a light most

favorable to the appellee, reasonable minds could disagree on whether Officer

McNea acted in a reckless manner in his operation of the zone car under the

circumstances of this case, and therefore, the trial court properly declined to invade

the province of the jury and deferred to the jury for a resolution of this issue.

               The first assignment of error is sustained as to Officer Hymes and

overruled as to Officer McNea. The second assignment of error is sustained.

               The trial court’s judgment as to Officer McNea is affirmed.          Its

judgment as to Officer Hymes is reversed. The case is remanded to the trial court

for further proceedings consistent with this opinion.

      It is ordered that appellant McNea and appellee share the costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the

common pleas 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.


_____________________________
MICHELLE J. SHEEHAN, JUDGE

EILEEN A. GALLAGHER, J., CONCURS;
MARY J. BOYLE, P.J., CONCURS IN PART AND DISSENTS IN PART (WITH
SEPARATE OPINION ATTACHED)


MARY J. BOYLE, P.J., CONCURRING IN PART AND DISSENTING IN PART:

              I agree with the majority to affirm the trial court’s denial of summary

judgment to defendant-appellant, Officer Shane McNea. I disagree, however, that

we should reverse the trial court’s denial of summary judgment to defendant-

appellant, Officer Adam Hymes. I would affirm the trial court’s decision in its

entirety. I therefore concur in part and dissent in part.

I. Procedural History and Factual Background

              In February 2018, plaintiff-appellee, Denise Tufts Carter, as the

administrator of the estate of Romero Brown, filed an action against defendants

alleging claims of wanton and reckless conduct, wrongful death, and survivorship.

She also brought claims against Jonathan Grier, who was driving the vehicle that

ran a red light at the intersection of East 116th Street and Shaker Boulevard, crashing

into a vehicle driven by Brown, who died at the scene.
                   In March 2019, Officers McNea and Hymes moved for summary

judgment. Tufts Carter opposed. The following facts come from the opposing

summary judgment motions.

                   In the early morning hours of August 17, 2016, Officers McNea and

Hymes were on routine patrol in a marked police car. Their shift began at 9:00 p.m.

and ended at 7:0o a.m. Officer McNea was driving, and Officer Hymes was the

passenger. Officer Hymes explained in his deposition that as the passenger, he was

responsible for all radio communications and completing the paperwork required

for their shift.

                   Around 3:00 a.m., the officers were driving near East 116th Street and

Kinsman Road in Cleveland, Ohio, when they noticed a grey BMW parked at a gas

station. They believed the car to be suspicious because the gas station was closed

and there were no other cars in the parking lot. The officers began to pull into the

gas station to investigate, but as they did, the driver of the BMW, later identified to

be Grier, pulled out and headed north on East 116th Street. The officers followed.

                   The officers stated that the BMW stopped at a red light on East 116th

Street at Kinsman Road, and when it did, they pulled immediately behind it. Officer

Hymes began to run the license plate at the red light and noticed that the vehicle had

a Pennsylvania license plate. According to Officer Hymes, there were a few “drop

down screens” in the mobile data unit that you had to access before you could enter

an out-of-state license plate so he was unable to enter the plate number into the
mobile system before the light turned green. He also stated that the mobile data

unit appeared to be “slow or frozen.”

              When the light turned green, the BMW continued driving north on

East 116th Street. The officers followed. Officer Hymes had not written the BMW’s

license plate down, so he was still trying to read the plate number. According to

Officer McNea, they drove behind the BMW at a “normal rate of speed” until the

BMW sped away from them. Officer McNea stated that just as the BMW began to

accelerate and speed away, Officer Hymes was able to read the license plate number

to a dispatch operator.

              According to Officer Hymes, however, the BMW “began to accelerate”

when the light turned green at the intersection of East 116th Street and Kinsman

Road. Officer Hymes testified in his deposition that he “had Officer McNea attempt

to catch up to the vehicle so we could get the license plate and run it over the radio.”

Officer Hymes stated that he radioed dispatch with the BMW’s license plate number

while they were near a recreation center located at East 116th Street and Parkview

Avenue.

              The officers followed the BMW to keep it within their line of sight until

they heard back from dispatch regarding information on the license plate. Officer

McNea stated that while following the BMW, they saw it run a red light at the

intersection of East 116th Street and Buckeye Road. By the time the officers had

almost reached the intersection of East 116th Street and Buckeye Road, they saw the

BMW run another red light at Shaker Boulevard and crash into Brown’s vehicle.
              Officer McNea stated in his deposition that when they saw the crash,

he turned the zone car’s overhead lights on, but he could not recall if he turned the

sirens on as well. Officer McNea explained that he turned the zone car’s overhead

lights on to alert the public to proceed with caution around the scene of the accident.

Officer McNea agreed in his deposition that once the BMW was speeding, he could

have turned on his overhead lights and sirens and initiated a traffic stop.

               Officer Hymes wrote in the police report that they followed the

suspect vehicle on East 116th Street “at a normal rate of speed.” He stated in the

report that as “we ran the license plate” to dispatch, “the vehicle began to pick up

speed without us attempting any type of traffic stop.” He further stated, “While we

were waiting for radio to give us the license plate information, the vehicle ran the

red light at E. 116 and Shaker and crashed into another vehicle [ROMERO]. After

clearing the intersection at E. 116 and Buckeye, we approached the crash scene[.]”

Officer McNea signed the incident report that Officer Hymes wrote.

              Sergeant Michael Morales of the Cleveland Police Department

Inspections Unit reviewed the incident. He reviewed the radio dispatch recordings

and the body camera footage from both officers. He also interviewed Officers

McNea and Hymes.

              In his administrative interview, Officer McNea stated that when he

reached the red light at Buckeye Road, he slowed down and almost came to a

complete stop to “clear the intersection.” After he made sure it was safe to do so, he

slowly “rolled” through the intersection. Officer McNea denied that he tried to catch
up to the BMW even though he admitted he got up to “60 to 70 m.p.h.” while

following the vehicle. Officer McNea stated that he did not call dispatch to tell them

that the BMW had sped away from them at a high rate of speed because “it happened

so fast.” When asked if he was familiar with the department’s pursuit policy, Officer

McNea said that he was but that they “weren’t on a pursuit.”

              Officer Hymes stated in his administrative interview that when the

light changed green at East 116th Street and Kinsman Drive, the BMW accelerated

and began to pull away from their zone car. According to Officer Hymes, they

accelerated to try to catch up to it so he could call the license plate in to dispatch.

After he called in the license plate, he said that is when the BMW took off at a high

rate of speed. Officer Hymes stated that when the saw the BMW take off, they

“immediately slowed way down” and “stopped following the BMW altogether.”

When asked why they did not tell dispatch that the vehicle took off at a high rate of

speed, Officer Hymes explained that they did not have a chance to do so and because

they were waiting for dispatch to get back to them about the license plate. Officer

Hymes said they were travelling above the speed limit, but he did not know how fast

they were going. When told they got up to 70 m.p.h., Officer Hymes responded that

they were “trying to catch up to get the plate.” Officer Hymes also stated that they

got “down to 15 m.p.h. around Buckeye” Road. He said that he felt they slowed “way

down at Buckeye.” After the crash, they learned the BMW was stolen.

              Sergeant Morales reported that both officers’ body camera recordings

show that they did not stop their zone car at Buckeye Road and that they proceeded
through the intersection at Buckeye Road travelling at a high rate of speed. Officer

McNea can be heard telling another officer on his body camera footage that he came

to a complete stop at the intersection of East 116th Street and Buckeye Road.

              Sergeant Morales prepared GPS map logs, which showed tracking

from the officer’s zone car that captured its speed every ten seconds. When the

officers began following the BMW just after the intersection of East 116th and

Kinsman Drive, they were travelling at 32 m.p.h. Ten seconds later, at Soika Avenue,

they were travelling 46 m.p.h. Ten seconds after Soika Avenue, they were travelling

59 m.p.h. And ten seconds after that, they were travelling 70 m.p.h. just after

passing Harvey Avenue, which is the street just before Buckeye Road. Finally, just

after passing Buckeye Road, they were travelling at 54 m.p.h. and continued

travelling at that speed almost until they reached the crash at Shaker Boulevard.

              According to the radio dispatch recording, Officer Hymes’s report of

the license plate number lasted 18 seconds. Twenty seconds later, Officer Hymes

reported the crash. Thus, approximately 38 seconds passed from the time Officer

Hymes first called dispatch until he reported the crash.

              The Cleveland Police Department’s “Vehicle Pursuits” policy defines

“vehicular pursuit” as “an active attempt by an officer in an authorized emergency

vehicle to apprehend a suspect who is attempting to elude the police.” The policy

states that officers may initiate a vehicle pursuit when the suspect operating the

vehicle refuses to stop at the officer’s direction and flees apprehension for a violent

felony or operating a vehicle while intoxicated. The officers are also required to
“immediately notify” the Communications Control Section that “a pursuit is

underway” and “provide the reason for the pursuit, direction of travel, description

of the vehicle, license plate number, number of occupants, and the speeds involved.”

              Sergeant Morales concluded that Officers McNea and Hymes

conducted an unauthorized pursuit of the BMW. He also found that they were

untruthful in the investigation. Sergeant Morales recommended disciplinary action

be taken against the officers for violating Cleveland Police Department’s Vehicle

Pursuit Policy and Emergency Response Driving Policy. Sergeant Morales further

recommended that the officers be disciplined for not telling the truth and for

unethical conduct in violation of the department’s Manual of Rules and Regulations

and Manual for Rules of Conduct.

              In February 2017, the city of Cleveland held a predisciplinary hearing

against the officers. After the hearing, the city’s Director of Public Safety Michael

McGrath dismissed the charges against Officers McNea and Hymes. Although the

charges were dismissed, both officers received a “Letter of Reinstruction,” informing

them that they should have notified the Communications Control Section that the

suspect vehicle fled from them at a high rate of speed.

              An expert for Tufts Carter, Geoffrey Alpert, opined that Officers

McNea and Hymers were involved in a “de-facto pursuit,” which was against the

police department’s vehicle pursuit policy because Grier had not committed a

violent felony or operated a vehicle while intoxicated. Further, the policy states that

the police officers have a duty to notify the department’s Communications Control
Center when they are pursuing a vehicle and to provide reasons for the pursuit, the

direction of travel, information about the vehicle, and the speeds involved, which

Officers McNea and Hymes failed to do. Alpert also concluded that Officer McNea

drove the police car recklessly through the red light at the intersection of East 116th

Street and Buckeye Road without their overhead lights and sirens activated and that

both officers were untruthful in their reporting of what occurred. Alpert further

concluded that the officers’ actions in pursuing the BMW at high rates of speed

without their lights and sirens activated were “reckless, dangerous, and fell below

generally accepted standards of policing.”

                The police officer’s expert, William Eschenfelder, opined that the zone

car was approximately 1,000 feet away from the crash when it occurred.

Eschenfelder stated that because the offers were so far away from the intersection,

even if the officers had activated their overhead lights and sirens, the lights and

sirens would not have alerted Brown that the BMW was speeding through the

intersection.

                The trial court denied Officers McNea and Hymes’s summary

judgment motion, and they appealed, asserting that they are entitled to immunity

under R.C. 2744.03(A)(6)(b) as a matter of law.

II. Summary Judgment Standard

                We review an appeal from summary judgment under a de novo

standard. Baiko v. Mays, 140 Ohio App.3d 1, 10, 746 N.E.2d 618 (8th Dist.2000).

Accordingly, we afford no deference to the trial court’s decision and independently
review the record to determine whether summary judgment is appropriate.

Northeast Ohio Apartment Assn. v. Cuyahoga Cty. Bd. of Commrs., 121 Ohio

App.3d 188, 192, 699 N.E.2d 534 (8th Dist.1997).

              Civ.R. 56(C) provides that before summary judgment may be granted,

a court must determine that (1) there are no genuine issues of material fact

remaining 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 the evidence most strongly in favor of the nonmoving party,

that conclusion is adverse to the nonmoving party. State ex rel. Duganitz v. Ohio

Adult Parole Auth., 77 Ohio St.3d 190, 191, 672 N.E.2d 654 (1996).

              The moving party carries an initial burden of setting forth specific

facts which demonstrate his or her entitlement to summary judgment. Dresher v.

Burt, 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264 (1996). If the movant fails to

meet this burden, summary judgment is not appropriate, but if the movant does

meet this burden, summary judgment will be appropriate only if the nonmovant fails

to establish the existence of a genuine issue of material fact. Id. at 293.

III. Immunity for an Employee of a Political Subdivision

              Police officers are political subdivision employees.            Fabrey v.

McDonald Village Police Dept., 70 Ohio St.3d 351, 356, 639 N.E.2d 31 (1994).

Employees of a political subdivision are immune from liability unless “[t]he

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)(b).
              In this case, Tufts Carter does not assert that Officers McNea and

Hymes acted with malicious purpose or in bad faith. Thus, the only issue in this

appeal is whether there are genuine issues of material fact remaining as to whether

the officers’ acts or omissions were wanton or reckless.

              In Anderson v. Massillon, 134 Ohio St.3d 380, 2012-Ohio-5711, 983

N.E.2d 266, the Ohio Supreme Court set forth the meaning of the terms wanton and

reckless conduct. The Supreme Court held:

      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. (Hawkins v. Ivy, 50 Ohio St.2d 114,
      363 N.E.2d 367 (1977), approved and followed.)

      Reckless conduct is characterized by the conscious disregard of or
      indifference to a known or obvious risk of harm to another that is
      unreasonable under the circumstances and is substantially greater
      than negligent conduct. (2 Restatement of the Law 2d, Torts, Section
      500 (1965), adopted.)

Anderson at paragraphs two and three of the syllabus.

              The officers argue that they are immune from liability because there

was no evidence that they were wanton and reckless. Officer Hymes maintains that

he simply relayed information over the police dispatch radio in accordance with his

duties as the passenger in the zone car. Officer Hymes further contends that he

could not have been reckless because only a “mere 20 seconds elapsed between the

time [he] first finished relaying the information and Hymes’s subsequent broadcast

to notify dispatch that the BMW had been involved in an accident.”
              With respect to Officer McNea, he contends that he did not actively

pursue the BMW as defined by Cleveland’s departmental pursuit policy, which states

that pursuit is “an active attempt by an officer in an authorized emergency vehicle

to apprehend a suspect who is attempting to elude the police.” He further contends

that the vehicle only got up to 70 m.p.h., traffic conditions were light, and he

followed the vehicle from a distance of about 1,000 feet. He also asserts that he

slowed the zone car as he neared the intersection of East 116th Street and Buckeye

Road to “clear” the intersection. Officer McNea maintains that “[t]here is simply no

evidence to support a finding of wanton and reckless behavior in the 20 seconds that

elapsed between the time the officers radioed the license information to dispatch

and the time the officers subsequently notified dispatch that the suspect vehicle had

been involved in a collision.”

              Both officers rely heavily on the fact that only 20 seconds elapsed from

the time they called in the license plate and the time of the crash. However, they

followed the BMW for over 38 seconds before the crash (because they followed it for

a short time before Officer Hymes was able to call in the license plate). And in those

38-plus seconds, Officer McNea drove from a stopped position to 70 m.p.h. when he

“followed” the BMW, without activating the zone car’s overhead lights and sirens.

Although there was evidence that traffic was light, the speed limit was only 25 m.p.h.

on East 116th Street. Further, the officers did not have reasonable suspicion or

probable cause to initiate a traffic stop when they first began following the BMW out

of the gas station, but they certainly did when the BMW violated several traffic laws.
These factors create genuine issues of material fact as to whether the officers were

wanton and reckless.

              Further, Officer Hymes, as the passenger officer in the zone car, was

in charge of communications. Reasonable minds could differ as to whether Officer

Hymes should have followed the department’s pursuit policy and notified the

communications center that the BMW sped away from them at a high rate of speed

and informed the communications center that their zone car also reached speeds of

70 m.p.h. when they were “following” the BMW. Although violation of departmental

policies and procedures does not amount to per se reckless and wanton conduct, it

“may be relevant to determine the culpability of a course of conduct.” Anderson,

134 Ohio St.3d 380, 2012-Ohio-5711, 983 N.E.2d 266, at paragraph five of the

syllabus. Further, despite the fact that Officer McNea testified at his deposition that

he was in charge of activating the overhead lights and sirens in the zone car because

he was driving, reasonable minds could differ as to whether Officer Hymes was

wanton or reckless in failing to activate the lights and sirens when their vehicle

reached very high speed while following the BMW in a 25 m.p.h. speed zone.

              The officers cite to Gates v. Leonbruno, 8th Dist. Cuyahoga

No. 103738, 2016-Ohio-5627, in support of their argument that they are immune

from liability. They claim that in Gates, this court held that the officer’s conduct was

not wanton and reckless when the officer travelled at speeds over 100 m.p.h., traffic

was light, and the officer remained 800 to 1,000 feet behind the suspect vehicle.

Although Officers McNea and Hymes are correct that we found the officer in Gates
to be immune from liability, Gates is distinguishable. The pursuit in Gates occurred

on the highway, where the speed limit is much higher than it was in the present case.

Further, the officer in Gates activated his overhead lights and sirens when he began

the pursuit of the fleeing vehicle and immediately reported the pursuit to dispatch.

              Officers McNea and Hymes further cite to Shalkhauser v. Medina,

148 Ohio App.3d 41, 772 N.E.2d 129 (9th Dist.2002), in support of their argument

that they are immune from liability. They argue that the court in Shalkhauser held

that the officer was immune from liability despite the pursuit of a vehicle because

traffic was light and the evidence showed that the officer slowed for stop signs and

railroad crossings.    Again, Shalkhauser is distinguishable.        The officer in

Shalkhauser activated his overhead lights and sirens at the beginning of the pursuit,

just after seeing the vehicle veer left of center and learning that the owner of the

vehicle had an outstanding arrest warrant. Further,

       [t]he Medina Police Department had a fresh pursuit policy in effect at
       the time of the pursuit. In compliance with this policy, Officer Getto
       established radio communications with his shift commanding officer,
       Sergeant Horton. Also pursuant to the policy, Sergeant Horton
       assumed a supervisory role over the pursuit via radio communications
       with Officer Getto. Other members of the Medina Police Department
       joined Officer Getto in the pursuit of Leach in response to Sergeant
       Horton’s request, and county sheriff’s officers also rendered
       assistance.
Id. at ¶ 4.

              Thus, Shalkhauser does not support Officers McNea’s and Hymes’s

position that they are immune from liability. Moreover, unlike the officer in

Shalkhauser who slowed for stop signs and railroad crossings, the evidence
regarding whether Officer McNea sufficiently slowed the zone car through a red light

at East 116th and Buckeye Road is in dispute.

              Accordingly, it is my view that Tufts Carter presented evidence that

established genuine issues of material fact with respect to both Officers McNea and

Hymes. I would therefore affirm the trial court’s denial of summary judgment to the

officers.
