         [Cite as Munday v. Lincoln Hts., 2013-Ohio-3095.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



COURTNEY MUNDAY,                                 :           APPEAL NO. C-120431
                                                             TRIAL NO. A-1007663
        Plaintiff-Appellee,                      :

  vs.                                            :             O P I N I O N.

VILLAGE OF LINCOLN HEIGHTS,                      :

 and                                             :

OFFICER S. BEGLEY,                               :

    Defendants-Appellants,                       :

  and                                            :

VILLAGE OF LINCOLN HEIGHTS :
POLICE DEPARTMENT,

        Defendant.                               :




Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed from is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: July 17, 2013


David E. Stenson, for Plaintiff-Appellee,

Surdyk, Dowd & Turner, Co., L.P.A., Jeffrey C. Turner, Dawn M. Frick and Joshua
R. Schierloh, for Defendants-Appellants.




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




C UNNINGHAM , Judge.

       {¶1}     Defendants-appellants the Village of Lincoln Heights (“the village”)

and Officer Steven Begley, formerly employed as a village police officer, appeal from

the order of the Hamilton County Court of Common Pleas denying them summary

judgment on the basis of immunity. For the reasons that follow, we reverse the trial

court’s judgment.

                       I. Background Facts and Procedure

       {¶2}     This case arose out of an incident occurring on August 22, 2008. On

that date, Begley was employed as a police officer with the Lincoln Heights Police

Department, which performs police functions for the Village of Lincoln Heights, a

political subdivision of the state of Ohio.

       {¶3}     While on duty, Begley arrested plaintiff-appellee Courtney Munday

under suspicion of operating a vehicle while under the influence of alcohol. Begley

handcuffed Munday and placed him in the rear of his police cruiser to transport him

to the Evendale Police Department, in a neighboring jurisdiction, for the

administration of a breathalyzer test. Begley did not restrain Munday with a seat

belt, although he did recall securely shutting the back door of the cruiser. Consistent

with his regular practice, he then activated the door locking mechanism in the front

of his cruiser, which controls both the front and rear doors of the cruiser if the safety-

lock mechanism has been activated and is working properly.

       {¶4}     While on the way to Evendale, Begley drove onto the I-75 entrance

ramp and began making his way around the curve on the ramp at approximately 30-

35 m.p.h. As the cruiser neared the straightaway, the rear door on the driver’s side

opened, and Munday fell out and onto the roadway.




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                    OHIO FIRST DISTRICT COURT OF APPEALS



       {¶5}    Begley testified in his deposition that before the door opened, he had

heard the “distinctive sound” of the “door mechanism” opening and that he had seen,

through the rearview mirror, that Munday’s right hand was behind his back, holding

onto the door panel in an attempt to escape. He also testified that no one had ever

attempted to escape from his cruiser and that he had no reason to believe that his

safety locks had not been activated or were not working properly.

       {¶6}    Munday testified in his deposition that he had not attempted to

escape from the vehicle. Instead, he claimed that the door had popped open with the

force of his weight when the officer drove the cruiser around the curve on the

entrance ramp. He believed that Begley had been driving at 30 to 40 m.p.h., but he

had not seen the speedometer.

       {¶7}    Upon Munday’s exit, Begley immediately stopped his cruiser and

attended to Munday, who was transported to the hospital for treatment. He suffered

road rash, multiple contusions, and back injuries.

       {¶8}    Munday then filed an action for personal injury against the village,

the village’s police department, and Officer Begley based on Begley’s “negligence.”

Munday specifically pleaded that he had been “ejected” from the “moving” cruiser

while in transport after his arrest, and that the officer had handcuffed him and had

failed to “secure” him in the back seat. Munday sought compensatory damages and,

in addition, treble damages and attorney fees.       Notably, the complaint did not

present a claim against the village or its police department other than one based on

respondeat superior, and it did not set forth any conduct involving malicious

purpose, bad faith, or wanton or reckless conduct.

       {¶9}    The trial court initially entered default judgment against the

defendants, but it vacated that judgment in response to the defendants’ Civ.R. 60(B)



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                      OHIO FIRST DISTRICT COURT OF APPEALS



motion.    The village and Begley answered the complaint, raising immunity under

R.C. Chapter 2744, the Political Subdivision Tort Liability Act, as an affirmative

defense. They then moved for summary judgment on the entire claim on the basis of

immunity and, additionally, on the issue of whether Munday could be awarded treble

damages.       In support, they cited the pleadings and Begley’s and Munday’s

depositions, which they had filed with the court.

       {¶10}     In his memorandum opposing summary judgment, Munday argued

that a genuine issue of material fact remained as to whether Begley had acted

wantonly or recklessly where he had driven at an unreasonable speed on an on-ramp,

had not secured Munday with a seat belt, had failed to ensure that the door locks

were engaged properly, and had known that Munday was inebriated.                He also

suggested that the village was wanton and reckless for failing to purchase police

vehicles with proper safety locks and for failing to establish procedures requiring its

officer to determine if the safety locks in the village’s police cruiser were operational

and activated before transporting offenders.

       {¶11}     In support of his argument that summary judgment was not

appropriate, Munday cited to his and Begley’s depositions, interrogatory answers,

the affidavit of Whitney Butler, a retired Dayton police officer, and the deposition of

Sergeant Leroy Smith, Jr., of the village’s police department. Munday, however,

never filed Smith’s deposition with the court.

       {¶12}     In their reply brief in support of summary judgment, the village and

Begley emphasized that Munday was asking the court to stray way beyond the

pleadings, as he had not alleged in the complaint that Begley had acted wantonly or

recklessly, and he had not asserted any independent claims against the village.




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                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶13}     The trial court granted the village’s and Begley’s summary judgment

motion with respect to the issue of treble damages, but it denied them summary

judgment on the basis of immunity.1 The court did not issue an opinion explaining

the basis of its judgment.

       {¶14}    In their two assignments of error, the village and Begley maintain that

the trial court erred by denying their motion for summary judgment on the basis of

immunity.

                                II. Standard of Review

       {¶15}    In this interlocutory appeal, we must determine whether, on the

evidence before the trial court, the village and Begley were entitled to summary

judgment on the basis of immunity. Jones v. Norwood, 1st Dist. Hamilton No. C-

120127, 2013-Ohio-350, ¶ 31, citing Hubbell v. Xenia, 115 Ohio St.3d 77, 2007-Ohio-

4839, 873 N.E.2d 878, syllabus. We review the denial of summary judgment de

novo, without deference to the trial court’s decision. See id. at ¶ 34.

       {¶16}    Summary judgment is appropriate 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.” Civ.R. 56(C).

       {¶17}    Once the moving party has supported its contention that there is no

genuine issue of material fact, and that it is entitled to judgment as a matter of law,

the burden is on the nonmoving party to go beyond the “mere allegations or denials




1 The trial court granted summary judgment to the Lincoln Heights Police Department on the
grounds that it was not an entity that was capable of being sued.


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                     OHIO FIRST DISTRICT COURT OF APPEALS



of the party’s pleadings,” and to set forth specific facts, by affidavit or by other

appropriate evidence, “showing that there is a genuine issue for trial.” Civ.R. 56(E).

                     III. Immunity of a Political Subdivision

       {¶18}    Under R.C. Chapter 2744, different paradigms apply to determine the

immunity of a political subdivision and its employee. Whether a political subdivision

is entitled to immunity provided by R.C. Chapter 2744 involves a three-tiered

process. Colbert v. Cleveland, 99 Ohio St.3d 215, 2003-Ohio-3319, 790 N.E.2d 781,

citing Greene Cty. Agricultural Soc. v. Liming, 89 Ohio St.3d 551, 556-557, 2000-

Ohio-486, 733 N.E.2d 1141.

       {¶19}    The first tier is the general rule of blanket immunity, which provides

that a political subdivision is immune from liability incurred in performing either a

governmental or proprietary function. Id. at ¶ 15; R.C. 2744.02(A)(1). But that

immunity is not absolute. The second tier requires a court to determine if any of the

exceptions to immunity listed in R.C. 2744.02(B) apply to expose a political

subdivision to liability. Colbert at ¶ 15. If any exception to immunity applies, then

the third tier of the analysis requires a court to determine if any of the statutory

defenses against liability apply. See id.

                        A. Negligent-Operation Exception

       {¶20}    In its motion for summary judgment, the village argued that as a

political subdivision carrying out the governmental function of providing police

services, it was entitled to immunity absent any exception set forth in R.C.

2744.02(B). It further argued, as it does on appeal, that Munday’s claim did not

invoke any of the exceptions to the blanket immunity, including the exception set

forth in R.C. 2744.02(B)(1) for injuries caused by an employee’s negligent operation

of a vehicle.



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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶21}   Munday maintains that the exception set forth in R.C. 2744.02(B)(1)

applies simply because he was injured when he fell out of the moving police cruiser.

But the R.C. 2744.02(B)(1) exception applies only when the injury is “caused by” the

employee’s “negligent operation” of the vehicle.          R.C. 2744.02(B)(1).      “[T]he

negligent operation of a vehicle pertains only to negligence in driving or otherwise

causing the vehicle to be moved.” Doe v. Marlington Local School Dist. Bd. of Edn.,

122 Ohio St.3d 12, 2009-Ohio-1360, 907 N.E.2d 706, ¶ 26.

       {¶22}   We reject Munday’s broad interpretation of the exception in R.C.

2744.02(B)(1), but we nonetheless agree with him that the exception applies in this

case because his claim can be construed to set forth a claim for personal injury

caused by Begley’s negligent operation of the vehicle.

       {¶23}   Civ.R. 8(A) requires only that a pleading contain a short and plain

statement of the circumstances entitling the party to relief. Although Munday did

not plead his claim artfully, he did allege that he was injured by the arresting officer’s

“negligence” and that his injury occurred when he was “ejected” from the “moving”

cruiser.

       {¶24}   And when given an opportunity to make a demonstration of negligent

driving that caused his injury, in response to the village’s summary-judgment

motion, Munday presented an affidavit from Butler, who had served as a supervisor

for the special traffic investigation unit of the Dayton Police Department before

retiring in 2008. Butler opined that “Officer Begley was traveling at too fast a rate of

speed * * * when entering the curve of the on-ramp, which resulted in the ejection of

the offender from the rear of the police cruiser.”

       {¶25}   Although Begley testified that Munday had exited from the vehicle

voluntarily, in an attempt to escape, and not because of Begley’s driving, when faced



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                      OHIO FIRST DISTRICT COURT OF APPEALS



with a motion for summary judgment, the court must view the evidence in the light

most favorable to the nonmoving party, in this case Munday. See Civ.R. 56(C). After

doing so, we hold that a genuine issue of material fact remains as to whether Begley

was driving too fast when navigating the curve of the on-ramp and whether this

negligence caused Munday’s injury. Thus, the village was not entitled to summary

judgment on the grounds that no exception to immunity applied, where a genuine

issue of material fact remained as to the application of the exception set forth in R.C.

2744.02(B)(1).

                    B. Willful or Wanton Misconduct Defense

       {¶26}      The village also maintains that if summary judgment was not

appropriate on the grounds that no exception to immunity applied, then summary

judgment was appropriate because R.C. 2744.02(B)(1)(a) applied.            This section

provides a political subdivision with a full defense to liability for an injury caused by

the negligent driving of its employee police officer, acting within the scope of his

employment and authority, if the officer was responding to an emergency call and

the operation of the vehicle did not constitute willful or wanton misconduct. R.C.

2744.02(B)(1)(a).

       {¶27}     Munday conceded that Begley was responding to an emergency call as

a police officer when the injury occurred. See Colbert, 99 Ohio St.3d 215, 2003-

Ohio-3319, 790 N.E.2d 781. But he argued that a genuine issue of material fact

remained as to whether Begley’s actions constituted wanton misconduct. The Ohio

Supreme Court has recently clarified that “[w]anton misconduct is the failure to

exercise any care towards those to whom a duty of care is owed in circumstances in

which there is a great probability that harm will result.” Anderson v. Massillon, 134

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



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                    OHIO FIRST DISTRICT COURT OF APPEALS



This includes the “ ‘voluntary or intentional violation or disregard of a known legal

duty.’ ” Id. at ¶ 32, citing Black’s Law Dictionary 1630 (8th Ed.2004).

       {¶28}   Although we have noted that Civ.R. 8(A)’s requirements for setting

forth a claim are minimal, we must also note that they are not meaningless. The

short and plain statement must set forth the circumstances entitling the party to

relief. The goal of Civ.R. 8(A) is to simplify the pleading process while giving the

adverse party fair notice of the claim and an opportunity to prepare a response. See

Fancher v. Fancher, 8 Ohio App.3d 79, 82-83, 455 N.E.2d 1344 (1st Dist.1982). This

is particularly important in claims brought against a political subdivision and its

employees, to which the provisions of R.C. Chapter 2744 apply.

       {¶29}   To that end, courts have held that for a plaintiff to successfully

overcome a political subdivision’s or its employee’s motion to dismiss for failure to

state a claim upon which relief can be granted, the complaint must contain

allegations that would remove those parties from the statutory protections afforded

them to avoid liability in connection with governmental or proprietary functions,

although the operative facts are not required to be pled with particularity. See, eg.,

York v. Ohio State Highway Patrol, 60 Ohio St.3d 143, 144-145, 574 N.E.2d 1063

(1991); Fahnbulleh v. Strahan, 73 Ohio St.3d 666, 667, 653 N.E.2d 1186 (1995);

Copeland v. Cincinnati, 159 Ohio App.3d 833, 2005-Ohio-1179, 825 N.E.2d 681, ¶

18; Myrick v. Cincinnati, 1st Dist. Hamilton No. C-080119, 2008-Ohio-6830, ¶ 16.

       {¶30}   The village argues that numerous Ohio courts have held that a

plaintiff must allege malice, bad faith, or wanton or reckless conduct in the

complaint to raise these issues in opposing a motion for summary judgment on the

basis of immunity, citing Elston v. Howland Local Schools, 113 Ohio St.3d 314,

2007-Ohio-2070, 865 N.E.2d 845; Inland Prods., Inc, v. Columbus, 193 Ohio App.3d



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                     OHIO FIRST DISTRICT COURT OF APPEALS



740, 2011-Ohio-2046, 954 N.E.2d 141, ¶ 64 (10th Dist.); Inannuzzi v. Harris, 7th

Dist. Mahoning No. 10-MA-117, 2011-Ohio-3185, ¶ 46-47; Monteith v. Delta

Productions, Inc., 3d Dist. Crawford Nos. 3-07-35 and 3-07-36, 2008-Ohio-1997, ¶

28; Ohio Bell Tel. Co. v. Digioia-Suburban Excavating, L.L.C., 8th Dist. Cuyahoga

Nos. 89708 and 89907, 2008-Ohio-1409, ¶ 39-40.

       {¶31}   In Elston, the Ohio Supreme Court initially held that a school district,

which is defined as a political subdivision of the state, may assert the defense found

in R.C. 2744.03(A)(5) to establish nonliability in a case in which a political

subdivision would otherwise be liable according to R.C. 2744.02(B)(2) for negligence

caused by its employees occurring in connection with the performance of a

governmental function. Elston at ¶ 26. The R.C. 2744.03(A)(5) defense extends

immunity to a political subdivision for “injury, death, or loss to person or property

resulting from the exercise of judgment or discretion in determining whether to

acquire, or how to use, equipment, supplies, materials, personnel, facilities, and

other resources unless the judgment or discretion was exercised with malicious

purpose, in bad faith, or in a wanton or reckless manner.” (Emphasis added.)

       {¶32}    The Supreme Court then held that the appellate court had erred by

reversing summary judgment in favor of the school district on the basis of that

defense, because the plaintiff’s injury resulted from the judgment or discretion of its

coach in determining how to use equipment or facilities, and the plaintiff had

presented no claim suggesting even reckless conduct. Elston at ¶ 26 and 31.

       {¶33}   Although this case involves the application of the defense set forth in

R.C. 2744.02(B)(1)(a), and Elston involved the application of the defense set forth in

R.C. 2744.03(A)(5), we believe that this distinction is irrelevant. Both statutory

provisions provide a political subdivision a defense to establish nonliability.



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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶34}    Despite this case law, Munday argues that summary judgment was

inappropriate because his allegations could be construed to constitute wanton

misconduct when placed in the context of the operative facts that were brought out in

discovery.     By making this argument, Munday implicitly recognizes that his

complaint only set forth a claim for negligence.

       {¶35}    After reviewing the complaint, we conclude that Munday only

presented a claim for negligence. Munday used the word “negligence” three times to

describe Begley’s conduct, he never characterized Begley’s conduct as wanton

misconduct, and, most importantly, he failed to set forth any circumstances to

support a finding that Begley’s alleged negligent operation of the vehicle that led to

Munday’s injury constituted wanton misconduct. He merely alleged that Begley,

after placing him in handcuffs, had failed to secure him with a seat belt in the rear of

the cruiser. There was no allegation concerning Begley’s speed on the on-ramp or an

allegation that Begley knew the rear door could be opened by force or by the rear seat

passenger.

       {¶36}    Additionally, Munday did not allege that Begley had violated a

statute, ordinance, or police department policy designed for the safety of the public.

See Anderson, 134 Ohio St.3d 380, 2012-Ohio-5711, 983 N.E.2d 266, paragraph five

of the syllabus (holding that “the violation of a statute, ordinance, or departmental

policy enacted for the safety of the public is not per se willful, wanton, or reckless

conduct, but may be relevant to determining the culpability of a course of conduct.”).

       {¶37}    Nor did Munday allege that Begley had acted intentionally.          See

Jones, 1st Dist. Hamilton No. C-120237, 2013-Ohio-350, at ¶ 47-48 (affirming denial

of summary judgment on the basis of immunity to political subdivision employees on

intentional-infliction-of-emotional-distress claim).



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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶38}   Moreover, the village specifically challenged Munday’s ability to

oppose summary judgment on this issue. Because the village objected, we conclude

that there was no constructive amendment of the complaint. See Ohio Bell Tel. Co.,

8th Dist. Cuyahoga Nos. 89708, 89907, 2008-Ohio-1409, at ¶ 40.

       {¶39}   Accordingly, because Munday failed to allege that Begley’s operation

of the police cruiser while responding to an emergency call constituted willful or

wanton misconduct, the village successfully asserted the defense set forth in R.C.

2744.02(B)(1)(a) to Munday’s claim. See Elston, 113 Ohio St.3d 314, 2007-Ohio-

2070, 865 N.E.2d 845, at ¶ 26 and 31.

       {¶40}   For this reason, we hold that the village was entitled to the full

defense to liability afforded by R.C. 2744.02(B)(1)(a).

                      IV. Immunity of the Employee Begley

       {¶41}   The immunity of political subdivision employees and the exceptions

to that immunity are set forth in R.C. 2744.03(A)(6), which provides as follows:

               In addition to any immunity or defense referred to in division

       (A)(7) of this section and in circumstances not covered by that division

       or sections 3314.07 and 3746.24 of the Revised Code, 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; [or]

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

               section of the Revised Code.



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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶42}   Begley moved for summary judgment on the grounds that none of the

exceptions in R.C. 2744.03(A)(6) applied. Munday conceded that Begley had been

acting within the scope of his employment when he was injured, and that no statute

had expressly imposed civil liability on Begley for his action. But he argued that

Begley’s conduct could be construed to constitute wanton or reckless behavior when

placed in the context of the operative facts that were brought out in discovery. Thus,

he argued that the exception in R.C. 2744.03(A)(6)(b) applied.

       {¶43}   We have already rejected Munday’s argument that the court may look

to the facts brought out in discovery when determining the character of the claim

alleged, when, as here, the movant has challenged any constructive amendment of

the complaint. And, after reviewing his complaint, we have determined that Munday

alleged only negligent conduct.

       {¶44}   Wanton misconduct and reckless conduct are not the same as

negligent conduct. In short, wanton misconduct involves the failure to exercise any

care and a great a probability that harm will result. Anderson, 134 Ohio St.3d 380,

2012-Ohio-5711, 983 N.E.2d 266, at paragraph three of the syllabus.              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.” Id. at paragraph four of the syllabus.

       {¶45}   The exception to the immunity in R.C. 2744.03(A)(6)(b) does not

reach allegations of merely negligent conduct. Jones, 1st Dist. Hamilton No. C-

120127, 2013-Ohio-350, at ¶ 45. Munday could not oppose Begley’s motion for

summary judgment by raising the issue of the wantonness or recklessness of Begley’s

conduct, where the complaint failed to set forth allegations of such behavior.




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       {¶46}   We hold that the complaint must contain allegations suggesting

malice, bad faith, or wanton or reckless conduct for a plaintiff to raise these issues in

opposing the employee’s motion for summary judgment based on the immunity

found in R.C. 2744.03(A)(6). Accordingly, because Munday’s complaint alleged only

negligence, and no other exception to the immunity of a political subdivision

employee applies, Begley established his immunity from liability for Munday’s claim.

                                     V. Conclusion

       {¶47}   We hold that the trial court erred by denying summary judgment to

the village and Begley on the basis of immunity. The first and second assignments of

error are sustained. Accordingly, we reverse the trial court’s judgment and remand

the cause with instructions for the trial court to enter judgment in favor of the village

and Begley.

                                                Judgment reversed and cause remanded.

HILDEBRANDT, P.J., and DINKELACKER, J., concur.


Please note:

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




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