         [Cite as Kurz v. Great Parks of Hamilton Cty., 2016-Ohio-2909.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



LINDA KURZ,                                       :          APPEAL NO. C-150520
                                                             TRIAL NO. A-1403674
   Plaintiff-Appellee,                            :
                                                                           O P I N I O N.
  vs.                                             :

GREAT PARKS              OF      HAMILTON :
COUNTY,
                                                  :
  and
                                                  :
RAMON CAPETILLO,
                                                  :
  Defendants-Appellants,
                                                  :
  and
                                                  :
SAFECO INSURANCE CO. OF
ILLINOIS,                                         :

   and                                            :

UNITED HEALTHCARE INSURANCE                       :
CO.,

  Defendants.                                     :


Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed in Part, Reversed in Part, Judgment Entered
                           in Part, and Cause Remanded

Date of Judgment Entry on Appeal: May 11, 2016


O’Connor, Acciani & Levy LPA and Barry D. Levy for Plaintiff-Appellee,

Schroeder, Maundrell, Barbiere & Powers, Lawrence E. Barbiere and Kurt M. Irey
for Defendants-Appellants.

Please note: this case has been removed from the accelerated calendar.
                      OHIO FIRST DISTRICT COURT OF APPEALS




D E W INE , Judge.

          {¶1}   A woman was hit by a snowplow while walking on a park road. The

question before us is whether the park district and the snowplow operator are entitled to

immunity from the pedestrian’s personal-injury lawsuit.           The trial court denied

summary judgment to both the park district and the driver on the immunity issue. We

conclude that the court got it right as to the park district. A political subdivision is not

entitled to governmental immunity in actions that arise from the negligent operation of

a motor vehicle. Because there exist issues of fact as to whether the driver was operating

negligently, summary judgment was properly denied, and the claim against the park

district may proceed to trial. The driver’s immunity, however, is a different matter.

Under Ohio’s immunity scheme, he only may be liable if he operated the vehicle “with

malicious purpose, in bad faith, or in a wanton or reckless manner.” Because the record

contains no such facts, we reverse the trial court and enter judgment in favor of the

driver.

                                   I. Background

          {¶2}   On the afternoon of February 5, 2014, 74-year-old Linda Kurz went for a

walk in Winton Woods Park. Winton Woods is part of Great Parks of Hamilton County

(“Great Parks”), a political subdivision of the state of Ohio. There was snow on the

ground that day, and two Great Parks employees—Ramon Capetillo and Christopher

Fahner—were at work plowing the park roads.

          {¶3}   With her dog and her walker, Ms. Kurz was a familiar sight in the park;

she walked there on an almost daily basis. That afternoon, she began her walk on a trail

that was next to the roadway. At some point, she departed from the trail and began to

walk on the park road. Ms. Kurz has only limited recollection of the events leading up to




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her accident, so we don’t know if it was weather conditions or some other reason that

caused her to depart from the walking path.

       {¶4}     The two snowplow drivers initially were covering separate routes, but at

some point in the afternoon, Mr. Capetillo says he spotted Fahner in front of him and

sought to catch up with him to discuss which areas remained to be plowed. Mr.

Capetillo was operating a Ford F-350 dump truck with a snowplow in front and a salt

spreader in the back. By the time the accident occurred, Mr. Capetillo had succeeded in

catching up with Fahner and was following not far behind his snowplow.

       {¶5}     Though it was overcast, Mr. Fahner describes the visibility as otherwise

good that day. He was proceeding at about 15-20 m.p.h. and caught sight of Kurz when

she was about 200 feet in front of him. Mr. Fahner, by his account, raised his snowplow,

shut off his salt spreader, came to an almost complete stop and went around her.

       {¶6}     Mr. Capetillo saw Fahner move to the center of the road. But, as he tells

it, he assumed that Fahner had moved left to put salt on an icy spot. Not wanting to

plow over the newly salted area, he took his eyes off the road and looked down at his

controls so that he could raise his plow. By the time he looked up and spotted Kurz, it

was too late. He swerved and applied his brakes. Despite his efforts, he hit Kurz.

She suffered fractures to her left femur, ankle, tibia and spine, as well as a laceration

to her skull and a brain hemorrhage.

       {¶7}     It is not clear whether Kurz was walking with or against traffic at the

time of the accident. Both snowplow drivers testified that Kurz was walking on the

right side of the road with her back to them. Ms. Kurz, on the other hand, testified

that she was walking back to her car which would have placed her on the left side of

the road, facing traffic.




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       {¶8}    Following the accident, Ms. Kurz instituted a personal-injury lawsuit

against Great Parks for negligence and against Capetillo for willful, wanton and

reckless conduct. Great Parks and Mr. Capetillo moved for summary judgment,

arguing that they were immune from liability. The court denied the motion for

summary judgment. This appeal followed.

 II. Great Parks and Capetillo Claim Immunity under R.C. Chapter 2744

       {¶9}    In their sole assignment of error, Great Parks and Capetillo argue that

the court erred when it denied their motion for summary judgment because they

were immune from liability under R.C. Chapter 2744, which establishes defenses and

immunities for political subdivisions and their employees. The chapter considers the

question of political-subdivision immunity separately from that of its employees, so

we consider each party’s claim of immunity in turn.

   A. The Court Properly Denied Summary Judgment as to Great Parks

       {¶10}   We employ a three-tiered analysis to assess Great Parks’ entitlement

to governmental immunity. The starting point is the general grant of immunity a

political subdivision receives for acts done in connection with governmental or

proprietary functions.    See R.C. 2744.02(A)(2).       Once general immunity is

established, it must be determined whether one of five exceptions applies. See R.C.

2744.02(B). If an exception applies, it must be determined whether immunity can be

reinstated under one of the statutory defenses such as those set forth in R.C.

2744.03.

       {¶11}   There is no question that Great Parks is entitled to the first-tier

general immunity. Mr. Capetillo was performing a governmental function—park

maintenance—when he hit Kurz. See R.C. 2744.01(C)(2)(u)(i). See also Wolanin v.

Holmes, 8th Dist. Cuyahoga No. 88454, 2007-Ohio-3410, ¶ 11.



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                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶12}    The next level of analysis requires us to consider whether one of the

five exceptions listed in R.C. 2744.02(B) removes Great Parks’ general immunity. At

issue is the first exception:

       [P]olitical 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.

R.C. 2744.02(B)(1). If the exception to immunity in R.C. 2744.02(B) applies, there are

no defenses available in the third tier of analysis that would restore Great Parks’

immunity.

       {¶13}    Great Parks contends that the exception does not abrogate its general

immunity because Kurz cannot establish that Capetillo was negligent in operating the

snowplow. In arguing that summary judgment should have been granted in its favor,

Great Parks focuses solely on the duty element of a negligence claim.

       {¶14}    A claim for negligence, of course, requires a duty, breach of that duty

and damages.      See Menifee v. Ohio Welding Prods., Inc., 15 Ohio St.3d 75, 77, 472

N.E.2d 707 (1984). It is the duty element that is at issue here. Great Parks maintains

that Capetillo was proceeding lawfully in his right of way at the time the accident

occurred. Under its theory, no duty was owed by Capetillo until he actually saw Kurz in

the road in front of him, a point at which it was too late to avoid the accident. Ms. Kurz,

on the other hand, argues that Capetillo owed her a duty when he saw the snowplow in

front of him take evasive action and thus became aware of the likelihood of a dangerous

condition in the road.

       {¶15}    The leading case in Ohio on the duty owed by a driver proceeding

lawfully in his right of way is Deming v. Osinski, 24 Ohio St.2d 179, 265 N.E.2d 554



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                      OHIO FIRST DISTRICT COURT OF APPEALS



(1970). There, the court rejected the legal requirement that a driver must “look, look

effectively and continue to remain alert.” Id. at 181. (Though, it remains good driving

advice.) Instead, the court held that a driver proceeding through an intersection in a

lawful manner has a right to assume that another driver approaching the intersection

from the left will follow the law and yield the right-of-way. Id. at 181-182. Upon

discovering that another has placed himself in a perilous situation, however, a driver

must exercise ordinary care to not injure the other. Id. at 182.

         {¶16}   Ohio courts have applied Deming to find that a driver proceeding

lawfully in the right of way has no duty to look for pedestrians or vehicles violating the

right-of-way. See Snider v. Nieberding, 12th Dist. Clermont No. CA2002-12-105, 2003-

Ohio-5715,¶ 9; Wallace v. Hipp, 6th Dist. Lucas No. L-11-1052, 2012-Ohio-623. Rather,

a driver “must exercise due care to avoid colliding with a pedestrian in his right of way

only upon discovering a dangerous or perilous situation.” Hipp at ¶ 13. Thus a driver

owes no duty to a pedestrian who suddenly steps into the driver’s path or to a vehicle

approaching from another direction that unexpectedly fails to yield the right-of-way.

See Markley v. Knutson, 3d Dist. Marion No. 9-96-29, 1996 Ohio App. LEXIS 4313

(Sept. 26, 1996) (driver not liable for death of child who walked out in street in front of

car); Leahy v. Richardson, 5th Dist. Delaware No. 10CAE080065, 2011-Ohio-3214

(motorist with right-of-way had no duty to look for vehicle that suddenly entered his

lane).

         {¶17}   Ms. Kurz disputes that she was violating the right-of-way. Ohio law

defines right-of-way as “[t]he right of a vehicle, streetcar, trackless trolley, or pedestrian

to proceed uninterruptedly in a lawful manner in the direction in which it or the

individual is moving in preference to another vehicle, streetcar, trackless trolley, or




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                      OHIO FIRST DISTRICT COURT OF APPEALS



pedestrian approaching from a different direction into its or the individual's path.” R.C.

4511.01(UU).

       {¶18}    In support of her contention, Ms. Kurz points out that she was not

crossing the road or darting out into Capetillo’s path. She also notes that Ohio law

allows a pedestrian to walk on the road where there is no sidewalk. See R.C. 4511.50(A).

She says further that she was in compliance with the statutory requirement that she walk

on the left side of the road as near as practicable to the outside edge of the roadway. See

R.C. 4511.50(C). But Ms. Kurz confuses the question of whether she could legally walk

on a roadway with the question of whether her presence on the road violated Capetillo’s

right-of-way. R.C. 4511.50 requires that “any pedestrian upon a roadway shall yield the

right-of-way to all vehicles * * * upon the roadway.” R.C. 4511.50(D). No distinction is

made between walking with or against traffic. As a pedestrian on the roadway, Ms. Kurz

was required to yield the right-of-way to all vehicles, including Capetillo’s snowplow.

       {¶19}    But even if Kurz was violating the right-of-way, we conclude that

Capetillo owed a duty to Kurz once he was placed on notice of a dangerous situation by

the evasive maneuver of the snowplow in front of him. While there is no affirmative

duty to look for a pedestrian violating the right-of-way, it remains the law in Ohio that a

driver aware of a perilous or dangerous condition must exercise due care to avoid

injuring another. The corollary of Deming’s principle that there is no duty to look for

danger unless there is a reason to expect it is that where there is a reason to expect

danger, one must be on the lookout. Or to put it in traditional tort-law terms, the

existence of a duty depends on the foreseeability of injury. See Snider, 12th Dist.

Clermont No. CA2002-12-105, 2003-Ohio-5715, at ¶ 8. “The test for foreseeability is

whether a reasonably prudent person would have anticipated that an injury was likely to

result from the performance or nonperformance of an act.” Menifee, 15 Ohio St.3d at



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                      OHIO FIRST DISTRICT COURT OF APPEALS



77, 472 N.E.2d 707. “In determining whether a reasonably prudent person would have

perceived the risks of injury, ‘only those circumstances which they perceived, or should

have perceived, at the time of their respective actions should be considered.’ ” Snider at

¶ 8, quoting Menifee at 77.

       {¶20}    Here, a number of circumstances that were perceived by or should have

been perceived by Capetillo made an injury foreseeable. The accident took place not on

a public highway but on a park road. According to Fahner, he often saw people walking

on the park’s roads. And this wasn’t the typical case of a driver proceeding down a

public street. Mr. Capetillo was operating a heavy piece of equipment, on a wintry day,

and he chose to operate his snowplow closely behind another snowplow.

       {¶21}    But what really makes this case different is that Capetillo saw the lead

snowplow take evasive action. If we are to believe Fahner (as we must on a motion for

summary judgment), he not only moved into the center of the road to avoid Kurz but

brought his vehicle to an almost complete stop. Mr. Capetillo says he interpreted this

simply as Fahner moving to salt the center of the road. But it seems to us that as least as

likely an explanation was the one that turned out to be correct—that Fahner was

swerving to avoid something.      Further, Mr. Capetillo’s assertion that he lifted his

snowplow to avoid scraping the newly salted area is inconsistent with Fahner’s

testimony that he had shut off his salt spreader. A reasonable person in Capetillo’s

position, we think, would have taken Fahner’s sudden evasive action as a warning sign

that there may be a pedestrian or other obstruction in the roadway. In such a situation,

a duty arose on the part of Capetillo to exercise due care to avoid a potential collision

with Kurz.

       {¶22}    Thus we conclude that when Capetillo saw the snowplow in front of him

suddenly move to the center of the road and come to an almost complete stop, he was on



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                      OHIO FIRST DISTRICT COURT OF APPEALS



sufficient notice of a dangerous condition to be under a duty to a pedestrian in the right-

of-way. It is for a jury to decide whether Capetillo breached that duty. See Scott v.

Marshall, 90 Ohio App. 347, 365, 105 N.E.2d 281 (1951). The trial court properly

denied summary judgment as to Great Parks’ immunity.

  B. The Trial Court Erred in Denying Summary Judgment as to Capetillo

       {¶23}    Whether summary judgment was proper as to Capetillo is determined

by consideration of R.C. 2744.03(A)(6):

       In addition to any immunity or defense referred to in division (A)(7) of

       this section * * *, the employee is immune from liability unless one of

       the following applies:

       (a) The employee’s acts or omissions were manifestly outside the

       scope of the employee’s employment or official responsibilities;

       (b) The employee’s acts or omissions were with malicious purpose, in

       bad faith, or in a wanton or reckless manner;

       (c) Civil liability is expressly imposed upon the employee by a section

       of the Revised Code.

       {¶24}    Ms. Kurz contends that Capetillo is not entitled to immunity because

his conduct was reckless. In identifying reckless conduct, the Ohio Supreme Court

has explained that “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.”

Anderson v. Massillon, 134 Ohio St.3d 380, 2012-Ohio-5711, 983 N.E.2d 266,

paragraph four of the syllabus. “The actor must be conscious that his conduct will in

all probability result in injury.” O’Toole v. Denihan, 118 Ohio St.3d 374, 2008-Ohio-




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                     OHIO FIRST DISTRICT COURT OF APPEALS



2574, 889 N.E.2d 505, paragraph three of the syllabus. There must be a “perverse

disregard of a known risk.” Id.

       {¶25}   The consciousness that conduct will likely cause injury is what

distinguishes recklessness from negligence. The Ohio Supreme Court has cited with

approval the following from the Second Restatement of Torts on the distinction

between negligence and recklessness:

       Reckless misconduct differs from negligence in several important

       particulars. It differs from that form of negligence which consists in

       mere inadvertence, incompetence, unskillfulness, or a failure to take

       precautions to enable the actor adequately to cope with a possible or

       probable future emergency, in that reckless misconduct requires a

       conscious choice of a course of action, either with knowledge of the

       serious danger to others involved in it or with knowledge of facts

       which would disclose this danger to any reasonable man. It differs

       not only from the above-mentioned form of negligence, but also from

       that negligence which consists in intentionally doing an act with

       knowledge that it contains a risk of harm to others, in that the actor to

       be reckless must recognize that his conduct involves a risk

       substantially greater in amount than that which is necessary to make

       his conduct negligent. The difference between reckless misconduct and

       conduct involving only such a quantum of risk as is necessary to make

       it negligent is a difference in the degree of the risk, but this difference

       of degree is so marked as to amount substantially to a difference in

       kind.




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                       OHIO FIRST DISTRICT COURT OF APPEALS



(Emphasis added.) Marchetti v. Kalish, 53 Ohio St.3d 95, 100, 559 N.E.2d 699

(1990), fn. 3, quoting 1 Restatement of Law 2d, Torts, Section 500, Comment g

(1965).

          {¶26}   The Ohio Supreme Court has said that ordinarily the question of

whether conduct was reckless is properly left for a jury. Fabrey v. McDonald Village

Police Dept., 70 Ohio St.3d 351, 356, 639 N.E.2d 31 (1994). Nevertheless, the court

has not hesitated to find summary judgment appropriate where the facts, when

construed in favor of the nonmoving party, fail to rise to the level of reckless conduct.

O’Toole at ¶ 92. As the court explained, “[a]lthough the determination of recklessness is

typically within the province of the jury, the standard for showing recklessness is high,

so summary judgment can be appropriate * * * where the individual’s conduct does

not demonstrate a disposition to perversity.” Id. at ¶ 75.

          {¶27}   Here, there are simply no facts in the record that demonstrate a

“consciousness” on the part of Capetillo that his conduct would in all likelihood

result in injury. See id. at ¶ 74. At most, Mr. Capetillo failed to take sufficient

precautions once the other snowplow’s shifting maneuver made him aware of

possible danger ahead. These facts present a jury question as to negligence, but they

fail to rise to the level required for recklessness.         Because there are no facts

indicating that he exhibited a “conscious disregard of or indifference to a known or

obvious risk,” Mr. Capetillo was entitled to summary judgment on his claim of

immunity.

                                    III. Conclusion

          {¶28}   The trial court properly denied summary judgment as to Great Parks’

immunity. But the court erred when it determined that Capetillo was not immune. The

assignment of error is sustained with respect to Capetillo and overruled with respect to



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                     OHIO FIRST DISTRICT COURT OF APPEALS



Great Parks. We therefore affirm in part, reverse in part, enter judgment in favor of

Capetillo and remand for a determination of whether Capetillo’s conduct was negligent.

                                                                Judgment accordingly.

C UNNINGHAM , P.J., and M OCK , J., concur.


Please note:

       The court has recorded its own entry on the date of the release of this opinion.




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