IN THE SUPREME COURT OF OHIO
LoraN. Whitley . CASE NO.:
vs.
Appellant On Appeal from the HamiltonCounty Court of Appeals, FirstAppellate District
Progressive Preferred Insurance Cotnpany . Court of Appeals CaseNo.: C090284 (Consolidated with
Defendant, . Case No. C090240)and
Board of Conmiissioners of HamiltonCounty, Ohio,
and
Lariy Henderson,
and
Sheriff of Hamilton County Ohio
Appellees
and
Jeffrey S. Whitley
Defendant
MEMORANDUM IN SUPPORT OF JURISDICTIONOF APPELLANT LORA N. WHITLEY
ihomas J. Ruwe (0020505) (COUNSEL OF RECORD)5710 Wooster Road, Suite 211Cincim-iati, Ohio 45227Phone: (513) 271-0808Fax: (513) 322-4453tiruwe(cr^fuse.nct
COUNSEL FOR APPELLANT, LORA N. WHITLEY
Mark C. Vollman (0007040) (COUNSEL OF RECORD)Thomas E. Deye (0021508)Hamilton County Prosecutor's Office230 East Ninth Street, Suite 4000Cincinnati, Ohio 45202-2151Phone: 513-946-3014Fax: 513-946-3018mark.vollmanghcpros.ortom.deye a,hcpros.org
COUNSEL FOR APPELLEES, BOARD OF COUNTY COMMISSIONERS OFIIAMILTON COUNTY OHIO, LARRY HENDERSON, AND SHERIFF OF HAMILTONCOUNTY, OHIO
Einily T. Supinger, (0074006) (COUNSEL OF RECORD)Daniel J. McCarthy, (0078388)Manley Burke225 W. Court StreetCincinnati, Ohio 45202Telephone: 513-721-5525Fax: 513-721-4268ets manleybprke.comdmccarthy(&.man1eyburke.com)
COUNSEL FOR DEFENDANT.IEFFREY S. WHITLEY CONSOLIDATED CASE NO.C090240
TABLE OF CONTENTS
Pame
EXPLANATION OF WHY THIS IS A CASE OFPUBLIC OR GREAT GENERAL INTEREST ......................................................... 1
STATEMENT OF THE CASE AND FACTS ......................................................... 2
ARGUMENT IN SUPPORT OF PROPOSITION OF LAW ................................... 6
Proposition of Law No. l: Where a police officer entereda high-traffic, multiple-lane intersection against a red light,while traveling at 30 mph, failed to slow down before enteringthe intersection, drove left of center and outside the nonnallanes of traffic, with obstructed visibility, and further, failedto activate his lights or his siren, it is a question of fact for thejury as to whether his conduct was willful, wanton, or reckless .................... 6
CONCLUSION ........................................................................................................ 14
CERTIFICATE OF SERVICE .................. ...............................................................15
APPENDIX Anpx.Page
Judgment Entry Granting Reconsideration, VacatingThe Judgment Entry and Decision of December 31, 2009,And Entering Decision of the Hamilton CountyCourt of Appeals (Februaiy 5, 2010) ............................................................. I
Decision of the Court of the Hamilton CountyCourt of Appeals (February 5, 2010) ............................................................. 3
Entry Transmitting Errata of the Hamilton CountyCourt of Appeals (March 4, 2010) ................................................................12
I. EXPLANATION OF WHY THIS IS A CASE OF PUBLICOR GREAT GENERAL INTEREST
R.C. 4511.03 and R.C. 4511.041 require a police officer, upon approaching a red light
when responding to an ernergency run, to do four things: (1) Slow down as necessary for safety
to traffic; (2) Proceed cautiously past the red light with due regard for the safety of all persons
using the street; (3) Display at least one flashing, rotating, or oscillating fight; and (4) Give an
audible signal by siren, exhaust whistle, or bell. The SherifPs deputy in this case entered a high-
traffic, multiple-lane intersection against a red light while traveling 30 niph. He was driving left
of center, outside the noimal lanes of traffic. His visibility to other cars approaching the
intersection was obstructed. But the deputy did not stop or even slow down. He did not display
flashing lights. He did not use his siren. And he nearly killed two people on a motorcycle, who
had proceeded through the intersection with the green light. So, were the lower courts correct
when it found that no reasonable person could conclude that the deputy acted in a willful,
wanton, or reckless manner?
This is a case of public or great general interest because it would deterrnine whether the
laws of this state provide protection to its citizens from the actions of a police officer who is
responding to an emergency.
The iinmanity given to a police officer during an emeigency iun is not unconditional. It is
specifically conditioned on his compliance with statutes enacted for the safety of the public.
Thus, the legislature has balanced: (1) the need of the police officer to respond during an
emergency; and (2) the need of the public for its own safety while using the streets. But the
Decision of the Court of Appeals in this case destroys that balance. It holds that a police officer
may violate every provision of both of these safety statutes without fear of any consequence. It
has removed all conditions and restraints for the police officer to observe on an emergency run.
1
Thus, the actual effect of this Decision is to nullify R.C. 4511.03 and R.C. 4511.041 by
judicial interpretation, and thereby transfonn R.C. 2744.02 and R.C. 2744.0 into super-immunity
statutes. Under the protection of this Decision, a police officer may violate every provision of
both statutes, and completely escape all responsibility for any harm done. And correspondingly,
no citizen has any remedy for his injuries caused by a police officer during an ernergency run,
even though these two statutes exist specifically for the protection of every motorist.
All judicial activism - whether liberal or conservative -- is rooted in the nofion that
judges are wiser than legislators. In this case, the Court of Appeals has told every police officer
in this state that, during an eniergency run, they may disregard the mandates of the legislature
contained in R.C. 4511.01 and R.C. 4511.041. They may do exactly what the deputy did in this
case, without fear of any consequences whatsoever. This oase has set a new standard for future
police conduct during an ernergency run. From this point forward, it makes no legal difference
whether a police officer enters an intersection against a red light without slowing down, without
using caution, and without using his lights or siren. Law enforcement may break the laws with
impunity and with immunity, and there are no consequences. And worse, there is no remedy for
the injured citizen.
This cannot be right; this cannot be the law. Thus, it is a matter of great public interest for
this Court to oveiTule this Decision.
11. STATEMENT OF THE CASE AND FACTS
A. Statement of the Case
On June 25, 2007 Plaintiff-Appellant Lora N. Whitley filed a Complaint in the Court of
Cornmon Pleas, Hamilton County, Ohio against: Progressive Preferred Insurance Company
(uninsured motorist carrier); Jeff Whitley (driver of the motorcycle that Lora was riding on);
2
Deputy Larry Henderson (driver of the police vehicle that collided with the motorcycle); the
Board of County Commissioners of Hamilton County, Ohio; the Sheriff of Hamilton County,
Ohio; two Boards of Township Trustees; and various John Doe defendants.
Progressive Preferred Insuranee Company and the township trustees were voluntarily
dismissed from the lawsuit. No John Doe defendants were identified or served, so no John Doe
Defendants are part of this case. Lora's case proceeded against the tln-ee Hamilton County
Defendants and her husband, Jeff Whitley.
Earlier on June 25, 2007 Lora's husband, Jeff Whitley filed a Coniplaint in the Cot of
Common Pleas, Hamilton County, Ohio against the same Defendants (excluding himself). On
September 18, 2007 Jeff and Lora's cases were consolidated by the trial court under Case No.
A0705619. All documents filed in either case on or after September 18, 2007 were journalized
under Case No. A0705619.
On Deceinber 5, 2008, the three Hamilton Coity Defendants filed a motion for
summary judgment. On March 27, 2009, the trial court granted summary judgment in favor of all
three Hamilton County Defendants (Deputy Henderson, the Commissioners, and the Sheriff) and
against Lora and Jeff on the basis of itntnunity, with a determination that there is no just reason
for delay. On April 24, 2009 Lora filed her Notice of Appeal.
On December 31, 2009 the Appellate Court issued its first Decision in this case. In its
Decision, the Court of Appeals obliterated one of the key facts that supported the Whitley's,
nainely, that the deputy entered the intersection against a red light without activating his lights.
There were two non-party witnesses. One stated that she thought the deputy had his lights on; the
other testified ten separate times in his deposition that the deputy did not have his lights on. For
purposes of summary judgment, the court was required to believe that the deputy did not have
3
his lights on. This fact made the deputy's conduct even more egregious. But instead of accurately
stating that the deputy had not activated his lights, the court stated that this witness "could not
remember" whether or not the deputy had his lights on, a statement which was completely
untrue.
Accordingly, Appellant Lora Whitley filed an Application for Reconsideration on
January 11, 2010, requesting that the court change its Decision, or at the least, corrects its
decision to truthfidly reflect the facts. On February 5, 2010 the appellate court granted the
Application for Reconsideration, vacated its Judgment Entry and Decision, and entered a new
Decision.
But even in this new Decision, the appellate court still misstated the facts upon which its
Decision was based. This time, the court said that the crucial witness testified two ways, once
that the deputy's lights were not tunied on until after the crash, and also that he could not
remember whether or not the lights were on before the crash. This statement was also untrue. So,
Appellant Lora Whitley filed a second Application for Reconsideration, demonstrating again that
the court's statement in its second Decision was also blatantly false. This tiine, the Court issued
a document titled Entry Transmitting Errata, in which it finally stated the truth, namely, that the
witness testified that the deputy's liglits "were not on until after the crash."
B. Statement of the Facts
1. Basic Back rg ound Facts
On June 26, 2005, Jeffrey Whitley was operating a Harley-Davidson Motorcycle with his
wife, Plaintiff-Appellant Lora Whitley, seated behind him as a passenger. Jeff was driving
eastbound on Fields-Ertel Road approaching the inteisection with Mason-Montgomery Road, in
4
Hamilton County. It was near noon. Prior to his approach to the Mason-Montgomery Road
intersection, JefPs motorcycle was stopped at a traffic light.
At the same time, I-iamilton Coutity Patrol Deputy Larry Henderson was on Governors
Way heading west towards Mason-Montgomery Road when he received a dispatch over his radio
regarding a possible robbery in Coluinbia'I'ownship. Deputy Henderson turned right and headed
northbound onto Mason-Montgomery Road. He drove a brief distance towards Ficlds-Ertel
Road, but the lanes northbound to turn westbound onto Fields-Ertel Road and the northbound
Mason-Montgomery Road lanes were full. Henderson approached the intersection at about 30
mph and drove left of center due to the blocked northbound turn and through lanes. When he
arrived at the intersection, Henderson was faced with a red traffic light, while JefPs light had
tumed green. Henderson proceeded through the red traffic liglit and turned left onto Fields-Ertel
Road when his patrol cruiser's left front fender was struck by JefPs motorcycle in the
intersection, with Lora seated behind him as a passenger. Both Jeff and Lora were thrown off
the niotorcycle, flipped over the police cruiser, and their bodies crashed to the pavement on the
other side of the police cruiser.
2. Essential Summary Judgment Facts
Under Civil Rule 56, the trial court was required to accept as absolutely true the
following facts:
1. The intersection was several lanes wide and had nuuierous tuni lanes;
2. Visibility in the intersection was obstructed because of the number of vehicles and
the heights of the vehicles;
5
3. The deputy drove his vehicle le$-of-center, outside the normal lanes of traffic, so
that his vehicle was not in a lane where other drivers would look for cars coming froin his
direction;
4. There were at least thirty cars either in the intersection or approaching the
intersection when the Deputy drove through;
5. The deputy was traveling at least 30 mph when he entered the intersection;
6. The deputy did not slow down before he entered the intersection;
7. The deputy did not slow down until he reached the center of the intersection;
8. The deputy did not activate his siren before entering the intersection;
9_ The deputy did not activate his lights before entering the intersection;
10. The deputy asked witnesses to leave the scene of the accident before they gave
their stateinents and before they gave their identification, even though he knew other
investigating officers were on their way to the scene. He did not give the witnesses blank
witness statements to write down what they saw. This gives rise to the inference, for purposes of
the motion for suminary judgnient, that the deputy was trying to liide dainaging facts against him
when he encouraged the witnesses to leave the scene without giving their identification or their
statements.
III. ARGUMENT IN SUPPORT OF PROPOSITION OF LAW
Proposition of Law No. 1: Where a police officer entered a high-traffic, multiple-laneiutersection against a red light, while traveling at 30 mph, failed to slow down beforeentering the intersection, drove left of center and outside the normal lanes of traffic, withobstructed visibility, and further, failed to activate his lights or his siren, it is a question offact for the jury as to whether his conduct was willful, wanton, or reckless.
6
Political Subdivision Immunity
Under R.C. 2744.02, political subdivisions are liable for injury 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. But there is no liability if the driver was operating a
motor vehiele while responding to an emergency call and the operation of the vehicle did not
constitute willful or wanton misconduct.
Under R.C. 2744.03, an employee of a political subdivision is inunune from liability
unless (among other grounds) the employee's acts or omissions were in a wanton or reckless
mamier.
Definitions of Wanton, Willful, and Reckless
The First District Court of Appeals in Brockman v. Bell i explained that the temis
wanton, willful, and recTdcss may be defined as points on a continuum between negligence,
which conveys the idea of inadvertence, and intentional misconduct.
Wanton misconduct is a degree greater than negligence. It is the failure to exercise any
care toward one to whom a duty of care is owed when the failure occurs under circumstances for
which the probability of harm is great and when the probability of harin is known to the
tortfeasor Z.
Willfiil misconduct is also something more thau negligence. It involves a more positive
mental state prompting the injurious act than does wanton misconduct. The phrase willficl
misconduct iinplies uitent. But the intention relates to the misconduct, not to the result, and,
therefore, an intent to injure need not be shown. Willfitil misconduct is an intentional deviation
from a clear duty or from a definite rule of conduct, a deliberate purpose not to discharge some
1 Brockman v. Bell (1992), 78 Ohio App.3d 508, 605 N.E.2d 4452 Brockman v. Bell, supra
7
duty necessary to safety, or purposely doing a wrongful act with knowledge or appreciation of
the likelihood of resulting injury 3.
An actor's conduct is in reckless disregard of the safety of otliers if he does an act or
intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to
know of facts which would lead a reasonable person to realize, not only that his conduct creates
an unreasonable risk of physical hann to another, but also that such risk of harm is substantially
greater than that which is necessary to make his conduct negligent 4.
While an act to be reckless must be intended by the actor, the actor does not intend to
cause the hann which results from it. Thus, reckless misconduct may be used interchangeably
with willful misconduct. Thus, for purposes of the immunity afforded under R.C. Chapter 2744,
"wanton or reckless" misconduct under R.C. 2744.03(A)(6) inay be viewed as the ftuictional
equivalent of "willful or wanton misconduct" under R.C. 2744.02(B)(1)(b) 5. 'T'lierefore, if
Deputy Henderson's conduct was wanton, reckless, or willful, there is liability.
The duties imposed by R.C. 4511.03 and R.C. 4511.041.
R.C. 4511.03 states as follows: "(A) The driver of any emergency vehicle or public
safety vehicle, when responding to an emergency call, upon approaching a red or stop signal or
any stop sign shall slow down as necessary for safety to traffic, but may proceed cautiously past
such red or stop sign or signal with due regard for the safety of all persons using the street or
highway. "
Deputy Henderson had two distinct duties under R.C. 4511.03 when he approached the
intersection with the red light facing him: (1) slow down as necessary for safety to traffic; and
' BrocTcrnan v. Bell, supra4 Brockman v. Bell, supra.5 Brockman v. Bell, supra
8
(2) proceed cautiously through the intersection while exercising due regard for the safety of
all persons using the road. (Emphasis added).
In addition to the duties iinposed by R.C. 4511.03, Deputy Henderson was under the
duties imposed by R.C. 4511.041, Lxceptions to traffic rules for emergency or public safety
vehicle responding to eniergency call. If Deputy Henderson chose to proceed through an
intersection against a red light, he was required to display "at least one flashing, rotating, or
oscillatinglight" and to give "an audible signal by siren, exhaust whistle, or bell."
Slowing down was mandatory under R.C. 4511.03. But Henderson did not slow down.
Regarding his own speed, Deputy Henderson stated that, "I was pretty quick getting up to the
intersection, " and that he was traveling at 30 mph. But even if he had slowed down, at the very
least it is a question for the jury as to whether he slowed down as necessarv, considering: the
number of lanes of traffic; the amount of traffic; the obstructed view; that he was driving left of
center and was not driving within a lane of traffic; and most important, that he did not activate
either his lights or his siren. It is also a question for the jury as to whether he also procceded
cautiously through the busy intersection when he did not even use his lights or siren.
Further, Henderson did not proceed cautiously through the intersection. He did not
exercise any regard for the safety of other persons in this busy intersection. He did not activate
his lights. And he did not use his siren.
R.C. 4511.03 and R.C. 4511.041 define the duty of care that is owed by a police officer
when he proceeds through an intersection against a red light. This is the care reguired by the law.
A violation of either of these statutes is a violation of the duty of care owed by a police officer.
Henderson violated every single standard of care imposed by R.C. 4511.03 and R.C.
4511.041. In other words, he failed to exercise any of the care required by the law toward other
9
motorists -- under circumstances for which the probability of hann was great, and when the
probability of harm was known to him as a trained police officer. This is the classic definition of
wanton misconduct.
Willful and Wanton Misconduct Is a Jury Question.
Because the line between willful and wanton misconduct and ordinary negligence can be
a fine one, the issue of whether conduct was willful or wanton should be submitted to the jury for
consideration in light of the surrounding circumstances when reasonable minds might differ as to
the import of the evidence 6 . For more than 25 years, the law in Ohio has been that "Wanton
misconduct is ajury question" 7 The Ohio Supreme Court reiterated this principle in 1994 when
it stated that "the issue of wanton misconduct is normally a jury question. "8
In the instant case, the attendant circumstances (voluine of traffic; number of lanes of
traffic; number of turn lanes; time of day; driving left of center; obstructed visibility) are
circumstances which make the probability of harm greater, and would have been known to any
trained police officer.
Deputy flenderson created the hazard that haimed Lora Whitley. R.C. 4511.03 specifies
the warning that Henderson was required to give to the public regarding this hazard, that is, his
lights and siren were the warning to the public. tle could have accomplished this with the flick of
a switch in his cruiser, which would not have delayed his einergency response in the least. But he
gave no warning wbatsoever, and ran the red light in a crowded intersection.
Interestingly enough, the Court of Appeals did not describe even one action that
Henderson took that showed that he took any precaution to avoid this collision. His conduct, and
6 Brockman v. Bell, supra7Matkovich v. Penn Cent. Transp. Co. (1982), 69 Ohio St.2d 210 23 0.O.3d 224, 431 N.E.2d
6528 Fabrey v. McDonald Village Police Dept., 70 Ohio St.3d 351, 1994-Oliio-368, 639 N.E.2d 31
10
his complete absence of any care whatsoever, satisfies all three definitions of wanton, willful,
and reckless misconduct.
Two First District Appellate Cases Support This Proposition of Law.
The First District Court of Appeals in Behm v. City Of Cincinnati y considered the
oflicer's failure to slow down, combined with other factors such as an obstructed view of the
intersection, to show that there was a substantially greater risk of harm at that particular
intersection, and therefore, it was a question of fact as to whether the officer's conduct was
wauton. The Court of Appeals noted that it was dark at the time of the accident; the driver's view
of the intersection was blocked either by a large building or by three lanes of waiting cars; and
the driver was following the first vehicle at such a distance that at least one witness thought that
the emergency was over before the ambulance came into view. The court concluded that there
was evidence that defendant was not only negligent, but wanton.
'I'he particular circumstances in the Behm case (darkness; obstructed view) changed what
might have been negligent conduct, in the officer's violation of R.C. 4511.03 at one intersection,
into wanton misconduct at the actual intersection where Mr. Behm was injured. Similarly,
conduct which might only be negligent at a lightly-traveled intersection at 10:00 p.m. on a
Sunday evening in January might be wanton misconduct at a heavily-traveled intersection at
noon on Sunday in late June. When circumstances exist under which the probability of harm is
great, then conduct that might otheiwise be only negligent becomes wanton. The consideration
of those circumstances is a jury question.
y Behm v. City Of 'Cincinnati (November 18, 1992; 1-Iamilton App. No. C-910865; unreported)
11
It is significant that the police officer in Behm, unlike Deputy Henderson, bad activated
both his lights and sirens. But the court of appeals still held that the issuc of wanton misconduct
was a question for the jury.
In Brockman v. Bell, supra, the First District Court of Appeals held that suimnary
judgment was improper where Bell, the driver of an emergency vehicle, operated his ambulance
at a rate of speed that prevented him from controlling it through the turn around a street corner,
failed to appreciate Brockman's presence in the right-rear blind-spot of the ambulance, and
executed the tutn too sharply. The Court of Appeals held that under the totality of the
circumstances, genuine issues of material fact remained as to "whether Bell's conduct constituted
wanton, willful, or reckless misconduct." It is noteworthy that Bell was driving with his lights
and his siren activated, and yet the court still held that his conduct posed a question of fact for
the juiy.
Other Appellate Cases Also Support This Proposition of Law.
The Court of Appeals in Fitzpatrick v. Spencer 10, reversed a trial court's grant of
summary judginent where a police officer proceeded through an intersection against a red light
because "Each case must be reviewed zznder the totality of the circumstances. " The court stated
that, while most courts emphasize the speed of the vehicle, its acceleration/deceleration, the
condition of the intersection, and the use of emergency lights(siren as significant facts, case law
demonstrates a strong preference.for juries to determine whether the facts of a particular case
satisfy R.C. 4511.03.
10 Fitzpatrick v. Spencer, 2004-Ohio-1940
12
In Peoples v. Willoughby ", the court found that there was sufficient evidence to support
a finding of willful and wanton 7nisconduct when a police officer proceeded tlirough an
intersection against a red light, without sounding his siren, at 40 mph - only ten inph faster than
Deputy Henderson in the Whitley case. Just as in the Whitley case, an obstructed view of the
intersection was one of the factors cited by the court. In addressing the issue of wanton
misconduct, the court noted that "under the circurnstances, there was a great probability that
harm would result. " In other words, conduct which might otherwise be merely negligent can be
wanton misconduct when there is a substantially greater risk of harm, such as driving left-of-
center through a busy intersection, against a red liglit, with no lights or siren. The appellate court
concluded that, "Wliether a person's actions are willful or wanton misconduct is a question of
f'act and, therefore, is a jury issue. "
In Neely V. Mifflin Township 12 the police officer approached an intersection against a red
light at a high rate of speed and moved left of a mmnber of other cars in the westbound lane in
order to proceed through the intersection. In reversing the trial court's granting of sununary
judgment, the appellate couit explained that the presence of other cars in the westbound lane
suggested a level of traffic necessitating "due regard" in a degree not necessarily required at less
traveled intersections. Moreover, the risk to the motoring public increases dramatically as the
speed of a public safety vehicle increases. The court concluded that the case presented the factual
issue for the jury of whether the officer acted recklessly. This was so even though the officer
had used his lights and his siren. Deputy Henderson used neither.
ii Peoples v. Willoughby (1990), 70 Ohio App.3d 848, 592 N.E.2d 90112 Neely V. Mifflin Township, September 30, 1996, Franklin App. No. 96APE03-283, unreported
13
Lora Whitley's Case Is Different from Herwe/a v. Bailey
The Whitley case is different in nuinerous respects froui Henvek v. Bailey 13, the case
cited by the Court of Appeals in support of its Decision. Officer Bailey had his siren on;
Henderson did not. Bailey slowed down before entering the intersection; Henderson did not slow
down. Bailey actually stopped his vehicle before entering the intersection; Henderson did not.
Immediately before his collision with Bailey, Herweh had observed another police car with both
lights and sirens activated, a clear warning that another emergency vehicle might be in the
vicinity; there was no prior warning at all for the Whitley's.
IV. CONCLUSION
For the reasons discussed above, this case involves a matter of public and great general
interest. It involves the issue of how much protection the law provides to its citizens fi-om the
actions of a police officer responding to an emergency. The balance between the needs of the
police officer while responding to an emergency and the needs of the public for safety on the
streets must be restored. The Appellairt requests that this court accept jurisdiction in this case so
that this iinportant issue will be reviewed on the inerits.
Tl{omas J. Ruwe (0020505)Attoniey for AppellantLora N. Whitley5710 Wooster Road, Suite 211Cinciiuiati, Ohio 45227Phone: 513-271-0808Fax: 513-322-4453tjiuwe(a,fuse.net
13 Herweh v. Bailey (Oct. 23, 1996, Hainilton App. No. C-960177, unreported
14
CERTIFICATE OF SERVICE
1 hereby certify that a copy of the foregoing document (Memorandum in Support of
Jurisdiction of Appellant Lora N. Whitley) was sent by ordinary U.S. mail to Mark C. Vollman,
Esq. and Thomas E. Deye, Esq., attorneys for Appellees Board of County Cominissioners of
Hamilton County, Ohio, Larry Henderson, and Sheriff of Hamilton County, Ohio at Hamilton
County Prosecutor's Office, 230 East Nintli Street, Suite 4000, C,incinnati, Ohio 45202; and to
Emily T. Supinger, Esq. and Daniel J. McCarthy, Esq., attorneys for Defendant Jeffrey S.
Whitley (Consolidated Case No. C090240) at 225 W. Court Street, Cincinnati, Ohio 45202 on
the 22nd day of March, 2010.
Thomas J. Ruwe, #0020505Attorney for AppellantLoraN. Whitley5710 Wooster Pike, Suite 211Cincinnati, Ohio 45227Telephone: 513-271-0808Fax: 513-322-4453tiiuwe(a7,fuse.net
15
IN THE COURT OF APPEALSFIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
LORA N. WHITLEY,
Plaintiff-Appellant,
vs.
PROGRESSIVE PREFERREDINSURANCE COMPANY,
BOARD OF COUNTYCOMMISSIONERS,HAMILTON COUNTY, OHIO
LARRY HENDERSON,
SHERIFF OF HAMILTONCOUNTY, OHIO,
and
JEFFREY S. WHITLEY,
Defendant-Appellees.
APPEAL NO. C-o9o284(Consolidated with C-o9o240)TRIAL NO. A-07o5621(Consolidated with A-07o5619)
JUDGMENT ENTRYGRANTINGRECONSIDERATION,VACATING THE JUDGMENTENTRYAND DECISION OFDECEMBER 31, 2009, ANDENTERING DECISION.
iD86921933
ENTEREDFEB - 5 t010
'I"his cause came on to be considered upon the motion of the appellant Lora
Whitley for reconsideration.
The Court, upon consideration thereot finds that the motion is well taken and is
granted. Wherefore, it is the Order of this Court that the Judgment Entry and Decision
entered on December 31, 2oo9 are set aside and held for naught.
The Court further Orders that the judgment of the trial court is affirmed. Our
Decision is modified and a new Decision entered, as of the date of this entry.
Further, the Court holds that there were reasonable grounds for this appeal, aRows
no penalty and Orders that costs are taxed in compliance with App. R. 24.
^
OHIO FIRST DISTRICT COURT OF APPEALS
'1"he Court further Orders that i) a copy of this Judgment with a copy of the
Decision attached constitutes the mandate, and 2) the mandate be sent to the trial court
for execution pursuant to App. R. 27.
To The Clerk:
Enter upon
2
tY
IN THE COURT OF APPEALSFIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
JEFFREY S. WHITLEY, APPEAL NO. C-o9o240TRIAL NO. A-07o5619
Plaintiff-Appellant,DECISION.
vs.
PROGRESSIVE PREFERREDINSURANCE COMPANY,
Defendant,
and
HAMILTON COUNTY, OHIO,
BOARD OF COUNTYCOMMISSIONERS OF HAMILTONCOUNTY, OHIO,
PRESENTED TO THE CLERKOF COURTS FOR FILING
FEB -5 2010
COURT OF APPEALS
LARRY HENDERSON,
and
SHERIFF OF HAMILTON COUNTY,OHIO,
Defendants-Appellees,
and
BOARD OF TOWNSHIP TRUSTEESOF SYMMES TOWNSHIP, OHIO, et.al.,
Defendants.
LORA N. WHITLEY APPEAL NO. C-o9o284TRIAL NO. A-o7og621
Plaintiff-Appellant,DECISION.
ENTEREDFBB - 5 Z010
01110 FIRST DISTRICT COURT OF APPEAIS
vS.
PROGRESSIVE PREFERREDINSURANCE COMPANY,
Defendant,
and
BOARD OF COMMISSIONERS OFHAMILTON COUNTY, OHIO,
I.ARRY HENDERSON,
and
SIIERIFF OF HAMILTON COUNTY,
Defendants-Appellees,
and
JEFFREY S. WHITLEY, et. a1.,
Defendants
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: February 5, 2010
Manley Burke, Emily T. Supinger, and Daniel J. McCarthy, for Plaintiff-AppellantJeffrey S. Whitley,
Thomas J. Ruwe, for Plaintiff-Appellant Lora N. Whitley,
Joseph T. Deters, Hamilton County Prosecuting Attorney, Tholnas E. Deye andPdark C. Vo!!man, Assistant Prosecuting Attorneys, for Defendants-AppelleesHamilton County, Ohio, Board of Commissioners of Hamilton County, Ohio, LarryHenderson, and Sheriff of Hamilton County.
Please note: This case has been removed from the accelerated calendar.
2
Offio FIRST DISTRICT COURT OF APPEALs
DINKELACKER, Judge.
{11} Plaintiffs-appellants, Jeffrey S. Whitley and Lora N. Whitley, appeal a
decision of the Hamilton County Court of Common Pleas granting summary
judgment in favor of defendants-appellees, Hamilton County, Ohio, Board of
Commissioners of Hamilton County, Ohio, Deputy Larry IIenderson, and Simon L.
Leis, Jr., Hamilton County Sheriff (collectively "Hamilton County'). We find no
merit in their assignments of error, and we affirm the trial court's judgment.
- ►. Facts and Procedure
{¶Z} The Whitleys were seriously injured when the motorcycle that they
were riding collided with I-Ienderson's police cruiser at the intersection of Mason-
Montgomery and Fields-Ertel Roads. Immediately before the crash,, Jeffrey had
been operating the motorcycle, with his wife, Lora, seated behind him as a passenger.
After stopping at a traffic light, they proceeded east on Fields-Ertel Road. As they
approached the intersection with Mason-Montgomery Road, the light turned green.
{¶3} Henderson, a Hamilton County deputy sheriff, was heading north on
Mason-Montgomery Road while responding to an emergency dispatch. He intended
to turn left onto Fields-Ertel Road. As he approached the intersection, the turn lanes
were full.
{14} Henderson then entered the intersection against the red light, but he
could not see all the lanes of oncoming traffic. He estimated that he was travelling
from 20 tc 30 m.p.h. E"Jitnesses testified that he did r,ot have his siren on when he
entered the intersection. While he was in the intersection, the Whitleys' motorcycle
collided with his cruiser's left front fender, sending the Whitleys flying.
ENTEREDFEB - 5 CU9©
OHIO FIRST DISTRICT COUR'I' OF APYEALS
{¶5} Jeffrey and Lora filed suit separately against Hamilton County and
numerous other defendants. The trial court later consolidated the two cases.
Hamilton County filed a motion for summary judgment in which it claimed that it
was immune from liability under the doctrine of sovereign immunity. The trial court
agreed, holding that Henderson's acts had not risen to the level of willful or wanton
misconduct, and it granted Hamilton County's motion for summary judgment.
{¶6} The Whitleys each present a single assignment of error for review.
'1'hey contend that the trial court erred in granting summary judgment in favor of
Hamilton County. They argue that they presented sufficient evidence to show that
genuine issues of fact existed for trial as to iNhether Henderson's conduct rose to the
level of willful and wanton misconduct. This assignment of error is not well taken.
!l. Standard of Review for Summary Judgment
{1[7} We review a trial court's decision to grant summary judgment de
novo.r Summaryjudgment is appropriate if (i) no genuine issue of material fact
exists for trial, (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 nonmoving party, who is entitled to have the evidence construed most strongly
in his or her favor.a
{T8} The trial court has an absolute duty to consider all pleadings and
appropriate evidentiary materials when ruling on a motion for summary judgment.
I
^^&^
FEB - 5 ZU1Q
I Grafton v. Ohio Edison Co., 77 Ohio St.3d io2, io5, 1996-Ohio-336, 671 N.E.2d 24i;'i ed1 Tsono. Hartings, ist Dist. No. C-o8116o, 2oo9-Ohio-4987, ¶6.2 Tenipte u. Wean C7nited, Inc. (1977), 5o Ohio St.2d 317, 327, 364 N.E.2d 267; Greene u.Wiciteside, i8i OhioApp.3d 253, 2oo9-Ohio-741, 9o8 N.E.2d g75, ¶23•
4^^
OHIO FIRHT DISTRICT COURT OF APPEAIS
It should not grant summary judgment unless the entire record shows that summary
judgment is appropriate 3
{¶9}. Although a trial court may not weigh the evidence in the context of a
motion for summary judgment, it must evaluate that evidence to deternune whether
it is sufficient to support the nonmovant's position that a jury could reasonably find
in the nonmovant's favor. Assessing the sufficiency of the evidence involves a
qualitative, as well as a quantitative, analysis. Therefore, in addition to considering
the amount of evidence presented on an issue, the court must consider whether the
evidence makes a party's claim plausible.4
Iit. Sovereign lmmunity
{¶10} "[P]olitical subdivisions are liable for injury, death, or loss to person
or property caused by the negligent operation of any vehicle by their employees when
the employees are engaged within the scope of their employment and authority."s
But a complete defense to a political subdivision's liability exists if "a member of a
municipal corporation police department or any other police agency was operating a
motor vehicle while responding to an emergency call and the operation of the vehicle
did not constitute willful or wanton misconduct."6
Similarly, employees of a political subdivision enjoy a presumption of
immunity in connection with their performance of governmental or proprietary
functions.7 An employee is immune from liability unless "the employee's acis or
omissions were with malicious purpose, in bad faith, or in a wanton or reckless
3 Greene, supra, at ¶23; Westfield Ins. Co. v. Towne Investment II, Inc., tlth Dist. No. 2oo6-L-026, 2oo6-Ohio-5830, 9i9-2o.4 Markey v. Barrett (Mar. 8, i996), 2nd Dist. No. 15243; Paul v. Uniroyal Plastics Co. (1988), 62Ohio ApP.3d 2^7 282, 575 N.E.2d 484.5 R.C. 2744.a2(B)(i)• ^ 1V t^^^^6 R.C. 2744.o2(B)(i)(a).7 R.C. 2744.03(A); Alagha v. Cameron, ist Dist. No. C-o81208, 2009-Ohio-4886, 9ig.
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5
OHIO FIRST DISTRICf COURT OF APPEALS
manner[.]"$ Such conduct is the "functional equivalent" of the willful and wanton
misconduct that would subject a political subdivision to liability.9
{1112} Willful and wanton misconduct is something more than negligence.'a
Wanton misconduct is the failure to exercise any care whatsoever towards those to
whom a duty is owed if the failure to exercise care occurs when a great probability of
harm exists." Willful misconduct involves "an intent, purpose or design not to
perform the duty of care that is owed."la
{¶13} Generally, the determination whether an employee of a political
subdivision acted willfully and wantonly is a question of fact for the jury. But where
the record does not contain evidence of willful or wanton misconduct, a trial court
may grant summary judgment in favor of the employee and the political
subdivision 13
IV. Alleged Statutory Violations
{114} The Whitleys argue that Henderson's conduct violated R.C. 4511.03,
which reqtiires the driver of a "public safety vehicle, when responding to an
emergency call, upoti approaching a red or stop signal or any stop sign" to "slow
down as necessary for safety to traffic." But the driver "may proceed cautiously past
such red or stop sign or signal with due regard for the safety of all persons using the
street or highway."
{¶15} They also argue that Henderson violated R.C. 4511.041. It provides
that a number of traffic laws do not apply to the driver of a public safety vehicle
s R.C. 2744•03(A)(6)(b).9 Ilerwele v. Bailey (Oet. 23, 1996), ist Dist. No. 960177; Broekman v. Bell (1992), 78 OhioApp.d 5o8, 5i6, 6o5 N.E.2d 445•t" Behm v. Cincinnati (Nov. 18, 1992), ist Dist. No. C-91o865; Brockman, supra, at 5.^^^^^ ^^^^» Alugha, supra, at ¶21; Herweh, supra.12 Td.13 Alagha, supra, at ¶22; Brockman, supra, at 517. FEB - 5 zuio
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OHIO FIRST I?ISTItICT COURT oFAPPEAI.S
responding to an emergency call if the vehicle "is equipped with and displaying at
least one flashing, rotating, or oscillating light visible under normal atmospheric
conditions from a distance of five hundred feet to the front of the vehicle and if the
driver of the vehicle is giving an audible signal by siren, exhaust whistle, or bell." It
goes on to state that "[t]his section does not relieve the driver" of the public safety
vehicle "from the duty to drive with due regard for the safety of all persons and
property upon the highway."
{¶16) The facts in this case are very similar to those in Herweh v. Bailey. In
that case, we held that the failure of a driver of a public safety vehicle responding to
an emergency call to comply with the requirements of R.C. 4511.041 was not per se
willful and wanton misconduct. "A driver of an emergency vehicle does not
automatically lose immunity under R.C. Chapter 2744 by failing to activate the
vehicle's lights or siren on an emergency run:'14 Instead, the officer's failure to use a
signal or lights was one factor for the court to consider in determining whether the
officer's conduct was wanton or willful.15
V. Application of the Law to the Facts of this Case
(1117} In Herweh, cve went on to state, "[W}ith the evidence construed most
strongly in favor of Herweh, Bailey responded to an emergency call without
activating his siren, proceeded through a red traffic light and struck IIerweh's
vehicle. Bailey, did, however, have his lights activated and in Herweh's estimation
was only traveling at 'a speed greater than 25 m.p.h.' Bailey's failure to use his siren
would be considered with all the other evidence in determining whether he acted in a
wanton or willful manner. * * *
flerweh, supra, citing Neuman v. Columbus (Aug. 31, i995), ioth Dist. No. 959PF -i861,L•intl E lt E DI.ipscomb u. Lewis (i993), 85 Ohio App.3d 97,619 N.E.2d io2.1s Id., citing Neuman, supra. FEB ' SZUla
7
OHIO FIRST DISTR[CT COURT OF APPFAI3
{11S} "Considering the totality of the circumstances, we find that a genuine
issue of fact does not exist, and that Bailcy did not act wantonly or willfully as a
matter of law, Although Bailey crossed the double yellow lines when executing a left
turn and allegedly had not activated his siren, reasonable minds could not find that
Bailey was guilty of wiAful and wanton misconduct."16
(¶19} We reach the same result in this case. We agree with the trial court
that even with the facts construed in the Whitleys' favor, Henderson's conduct, which
may have been negligent, did not rise to the level of willful and wanton misconduct
as a matter of law. The record does not demonstrate that he failed to exercise any
care whatsoever to those to whom he owed a duty of care or that he had an intent,
design, or purpose not to perform the duty of care owed.
{1f24J The parties do not dispute that Henderson was responding to an
emergency call as defined in R.C. 2744.oi(A), and that the call was directed
specifically to him. lie was not just answering a general call for assistance.17 He did
not activate his siren, and the record is unclear as to whether he activated his lights.
Henderson and Linda Warren, an eyewitness, testified that his lights were on when
he entered the intersection. Neither of the Whitleys remembered seeing any lights,
and Virgil Terry, another eyewitness, testified both that I-fenderson's lights were not
on until after the crash and that he could not remember: Nevertheless, we do not
find Henderson's failure to activate his lights to be dispositive.
{121} The parties do not allege that Henderson was speeding. The evidence
showed that he was going from 20 to 30 m.p.h., which was less than the Whitleys'
estimation of the speed at which they were travelling. Even Warner, the witness
,6 Id.17 See Quappe v. Ohio Dept. ofYubitc Safety (Ct.Cl.1997), 83 Ohio Misc.2d 74. 77-78, 679755.
8
gNTEREDE.KB - 5 [UtU
OI3I0 FIRST DISTRICT COURT Oli APPEALS
whose testimony was the most supportive of the Whitleys' position, stated that while
she did not feel that Henderson entered the intersection "with caution," he did not
"fly out, like come flying through there." She stated that when he was in the
intersection, he seemed to realize a collision was going to occur and tried to avoid it.
She described his conduct as "human error."
{1122} "Human error" might mean negligence, but it does not constitute
wiIlful or wanton misconduct. Since the evidence did not show that Henderson's
conduct was willful and wanton, both Hamilton County and Henderson individually
were immune from liability. The trial court did not err in granting liamilton
County's motion for summary judgment. We overrule the Whitleys' assignments of
error, and we affirm the trial court's judgment.
Judgment af5rmed.
HENDON, P.J., and SUNDERMANN, J., concur.
Please Note:
The court has recorded its own entry this date.
ENTERED I^ zmoFEB-5zu10
9 B
IN THE COURT OF APPRA i.S
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
LORA N. WHITLEY,
Appellant,
vs.
PROGRESSIVE PREFERREDINSURANCE COMPANY,
BOARD OF COUN1'YCOMMISSIONERS,HAMILTON COUNTY, OHIO,
LARRY HENDERSON,
SHERIFF OF HAMILTONCOUN'I`Y, OHIO,
and
JEFFREY S. WHITLEY,
Appellees.
APPEAL NO. C-o9o2$4(Consolidated with C-09o240)TRIAL NO. A-o705621(Consolidated with A-07o5619)
ENTRY TRANSMITTING ERRATA
ENT'^EDMAR - 4 zoto
It appearing to the Court that on page 8, 1(20, of the Decision filed
on February 5, 2oio, the Court through inadvertence misstated the fourthsentence as foll.ows:
"Neither of the Whitleys remembered seeing any lights, and Virgil Terry,another eyewitness, testified both that Henderson's lights were not onuntil after the crash and that he could not remember." (erroneous text isitalicized).
^R I^N96119`
It is the order of this Court that the text of the fourth sentence is corrected
to read as follows:
"Neither of the Whitleys remembered seeing any lights, and Virgil Terry,another eyewitness, testified that Henderson's lights were not on until
after the crash. "
To The Clerk:
Enter upon the Journal of the Court onMgf 4 20$er order of the Court.
gy:,^I (Copies sent to all counsel)
Presiding Judge
ENTEREDMAR - 4 2018
i
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