Argabrite v. Neer

{¶ 1} In this appeal, we consider the level of culpability necessary to hold a police officer liable for injuries suffered by innocent third parties as the result of a high-speed police pursuit. In particular, we consider a scenario in which the fleeing suspect’s vehicle collides with a vehicle occupied by the third party. The Second District Court of Appeals held that, as a matter of law, a police officer who pursues a suspect is not the proximate cause of injuries to a third party unless the officer’s conduct is extreme and outrageous. 2015-Ohio-125, 26 N.E.3d 879, ¶ 5, 7. We reject that standard because it is contrary to the express dictates of R.C. 2744.03(A)(6)(b), which prescribes a defense or immunity that political-subdivision employees may assert to establish their nonliability in a civil action for damages. Nevertheless, applying the correct standard, we conclude that none of the officers involved here could be held liable for damages as a result of their actions. Accordingly, we affirm the Second District’s judgment in their favor, albeit on different grounds.

Background

{¶ 2} In July 2011, appellant, Pamela Argabrite, was injured in a motor-vehicle accident that she alleges was the direct result of a high-speed police chase involving officers from the Miami Township Police Department and the Montgomery County Sheriffs Department. Argabrite filed a negligence action in the *350Montgomery County Court of Common Pleas against appellees Jim Neer, Gregory Stites, and John DiPietro—employees of the Miami Township Police Department—and appellees Tony Ball and Daniel Adkins—-employees of the Montgomery County Sheriffs Department. (We refer to appellees, collectively, as “the officers.”) She alleged that the officers, while acting within the course and scope of their employment, engaged in a high-speed chase of a suspect— Andrew Barnhart—that ended when Barnhart’s vehicle struck Argabrite’s vehicle head-on, killing Barnhart and seriously injuring Argabrite. She claimed that the officers are not entitled to governmental immunity because their actions were willful, wanton, reckless or malicious.

{¶ 3} The officers moved for summary judgment on two distinct grounds. First, they argued that, as a matter of law, their actions were not the proximate cause of Argabrite’s injuries because their conduct was not extreme or outrageous. In support of that argument, they cited Whitfield v. Dayton, 167 Ohio App.3d 172, 2006-Ohio-2917, 854 N.E.2d 532 (2d Dist.), overruled in part on other grounds, Anderson v. Massillon, 134 Ohio St.3d 380, 2012-Ohio-5711, 983 N.E.2d 266. Second, the officers argued that they are entitled to immunity as employees of political subdivisions under R.C. 2744.03(A)(6)(b) because they did not act “with malicious purpose, in bad faith, or in a wanton and reckless manner.”

{¶ 4} The trial court granted summary judgment in favor of the officers based on Whitfield, in which the Second District applied a rule that “when police officers pursue a fleeing violator who injures a third party, the officers’ pursuit is not the proximate cause of the injuries unless their conduct was outrageous or extreme.” Id. at ¶ 22, citing Lewis v. Bland, 75 Ohio App.3d 453, 599 N.E.2d 814 (9th Dist.1991). The trial court stated that no reasonable juror could conclude that the officers engaged in extreme or outrageous conduct and, therefore, no reasonable juror could conclude that the officers’ actions were the proximate cause of the accident.

{¶ 5} On appeal, the Second District likewise applied the no-proximate-cause rule from Whitfield and affirmed the trial court’s entry of summary judgment. We accepted Argabrite’s discretionary appeal. 143 Ohio St.3d 1440, 2015-Ohio-3427, 36 N.E.3d 188.

Analysis

Statutory political-subdivision immunity

{¶ 6} We begin our analysis by looking to relevant statutes that cloak employees of political subdivisions with immunity. R.C. Chapter 2744 sets out circumstances under which political subdivisions and their employees are liable in tort in connection with governmental and proprietary functions. Political-subdivision *351immunity is an affirmative defense. Whitehall ex rel. Wolfe v. Civ. Rights Comm., 74 Ohio St.3d 120, 123, 656 N.E.2d 684 (1995).

{¶ 7} Argabrite asserts claims against political-subdivision employees. We therefore turn to R.C. 2744.03(A), which prescribes defenses or immunities that an employee of a political subdivision may assert to establish nonliability in a civil action for damages allegedly caused by an act or omission in connection with a governmental or proprietary function. As relevant here, an employee of a political subdivision is immune from liability unless the employee’s “acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner.” R.C. 2744.03(A)(6)(b). This standard applies to law-enforcement officers just as it applies to other employees of political subdivisions. See Fabrey v. McDonald Village Police Dept., 70 Ohio St.3d 351, 356, 639 N.E.2d 31 (1994).

{¶ 8} We focus here on the phrase “wanton or reckless manner.” This court has defined “wanton misconduct” as “the failure to exercise any care toward those to whom a duty of care is owed in circumstances in which there is great probability that harm will result.” (Emphasis added.) Anderson, 134 Ohio St.3d 380, 2012-Ohio-5711, 983 N.E.2d 266, at paragraph three of the syllabus. And we have defined “reckless conduct” as conduct “characterized by the conscious disregard of or indifference to a known or obvious risk of harm to another that is unreasonable under the circumstances and is substantially greater than negligent conduct.” Id. at paragraph four of the syllabus. These are rigorous standards that will in most circumstances be difficult to establish, especially with respect to a law-enforcement officer carrying out the statutory duty to arrest and detain a person violating the law. See R.C. 2935.03(A)(1).

Conflict between no-proximate-cause rule and statutory immunity

{¶ 9} Both the trial court and the appellate court in this case acknowledged R.C. 2744.03(A)(6) and its applicability to police officers. But rather than analyzing this case under the immunity statute, both courts skipped the question of immunity and applied the judicially created no-proximate-cause rule from Whitfield and Lewis.

{¶ 10} When a plaintiff files a civil action against an employee of a political subdivision, the employee’s entitlement to statutory immunity is a separate question from the plaintiffs ability to establish the elements of his or her claim. Here, for example, if the officers had acted recklessly, they would not be entitled to immunity, but they could still avoid liability by establishing that their reckless actions were not the proximate cause of Argabrite’s injuries. Justice Kennedy’s concurring opinion accuses the majority of blurring the distinction between the affirmative defense of immunity and the tort element of proximate cause, but that charge is a nonstarter. It is the no-proximate-cause rule itself that blurs those *352distinctions by incorporating concepts related to duty and breach that are part of the statutory-immunity standards, into the question of proximate cause.

{¶ 11} The no-proximate-cause rule is admittedly phrased in terms of proximate cause—an element of a tort claim—and not in terms of immunity. But the judicially created rule improperly imputes to the question of proximate cause a standard of care—extreme or outrageous conduct. As Judge Froelich stated in his dissenting opinion in the court of appeals, “[t]his approach is contrary to traditional notions of proximate cause, which focus on the foreseeability of the consequence, not the wrongfulness of the conduct that produces the result.” 2015-Ohio-125, 26 N.E.3d 879, ¶ 34 (Froelich, J., dissenting). The alarmist statement in Justice Kennedy’s opinion that abrogation of the no-proximate-cause rule “will have a chilling effect on policing” and “aid criminals in their flight,” concurring in judgment opinion at ¶ 64, is completely unfounded and is a misguided attempt to inject policy considerations into a case that is resolved by application of straightforward legal principles of immunity and proximate cause.

{¶ 12} With R.C. 2744.03(A)(6)(b), the General Assembly “expressly removed immunity from employees of a political subdivision for wanton or reckless conduct.” Anderson, 134 Ohio St.3d 380, 2012-Ohio-5711, 983 N.E.2d 266, at ¶ 23. The no-proximate-cause rule, however, shields a police officer from liability as a matter of law unless the officer in these circumstances acts in an extreme or outrageous manner. Extreme or outrageous conduct connotes a higher standard of culpability than reckless or wanton conduct. Conduct that is extreme or outrageous is “ ‘atrocious, and utterly intolerable in a civilized community,’ ” that is, it is when “ ‘the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, “Outrageous!” ’ ” Whitfield, 167 Ohio App.3d 172, 2006-Ohio-2917, 854 N.E.2d 532, at ¶ 60, quoting Yeager v. Local Union 20, Teamsters, Chauffeurs, Warehousemen & Helpers of Am., 6 Ohio St.3d 369, 375, 453 N.E.2d 666 (1983). Thus, the no-proximate-cause rule effectively and improperly extends immunity to a police officer who acts wantonly or recklessly, but not in an extreme or outrageous manner, even though the officer is not entitled to immunity under R.C. 2744.03(A)(6)(b). Ohio courts lack the authority to confer immunity based on a different standard than the General Assembly has implemented. We must therefore reject the no-proximate-cause rule in favor of the standard set out in R.C. 2744.03(A)(6). If the General Assembly wants to expand the limits of the immunity that applies to police officers who pursue fleeing suspects, it may create a new standard via statute, but the courts may not.

Summary judgment

{¶ 13} Ordinarily, our conclusion that the express legislative mandate in R.C. 2744.03(A)(6)(b) controls in lieu of the judicially created no-proximate-cause rule *353would end the matter, and we would remand for the trial or appellate court to apply the proper immunity standard. But this case calls out for a different course.

{¶ 14} This court reviews a grant of summary judgment de novo—that is, we will consider the evidence as if for the first time—using the standard set out in Civ.R. 56. Hudson v. Petrosurance, Inc., 127 Ohio St.3d 54, 2010-Ohio-4505, 936 N.E.2d 481, ¶ 29. A court may grant summary judgment only when no genuine issue of material fact remains to be litigated, the moving party is entitled to judgment as a matter of law, and, viewing the evidence in the light most favorable to the nonmoving party, reasonable minds can reach a conclusion only in favor of the moving party. M.H. v. Cuyahoga Falls, 134 Ohio St.3d 65, 2012-Ohio-5336, 979 N.E.2d 1261, ¶ 12, citing Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977), citing Civ.R. 56(C).

{¶ 15} Because the officers moved for summary judgment not only on the basis of proximate cause but also on the basis of R.C. 2744.03(A)(6)(b) immunity, we must determine whether, based on the evidence in the record, reasonable minds could conclude that any of the officers acted “with malicious purpose, in bad faith, or in a wanton or reckless manner” so as to preclude immunity. In doing so, we bear in mind that while many public employees face the potential for liability under R.C. 2744.03, no other public employee faces the potential danger, violence or unique statutory responsibilities a law-enforcement officer faces. Not only does Ohio law require an officer to arrest and detain a person who is violating the law, R.C. 2935.03(A)(1), it also subjects that officer to potential criminal liability for negligently failing to do so, R.C. 2921.44(A)(2).

{¶ 16} An officer’s role in our society creates a unique lens through which to view his or her actions and through which to determine whether those actions may have been malicious, in bad faith, wanton or reckless. We expect law-enforcement officers to protect the public, but that expectation need not mean that an officer must sit idly by while a suspect flees the scene of a crime, particularly when the suspect’s flight itself endangers the general public further. The danger of a high-speed chase alone is not enough to present a genuine issue of material fact concerning whether an officer has acted with a malicious purpose, in bad faith or in a wanton or reckless manner. Shalkhauser v. Medina, 148 Ohio App.3d 41, 50-51, 772 N.E.2d 129 (9th Dist.2002).

{¶ 17} After reviewing the record in the light most favorable to Argabrite, we conclude that there are no genuine issues of material fact remaining and that the officers are entitled to judgment as a matter of law because there is no evidence that the officers acted with malicious purpose, in bad faith or in a wanton or reckless manner. The officers were therefore entitled to immunity under R.C. *3542744.03(A)(6)(b) and to summary judgment. We will address each officer, and the evidence related to his conduct, in turn.

(¶ 18} We begin with Montgomery County Sheriff Sergeant Adkins, who was on patrol when he heard a report of a burglary and a description of the vehicle driven by the suspect. He testified that “it sounded like [Miami Township police] were initiating the pursuit of that vehicle.” Anticipating the possible need to clear intersections or to pursue the suspect on foot, Adkins drove in the direction of the ongoing pursuit, but he never personally observed the suspect’s vehicle. Based on the evidence, the trial court stated, “Adkins was not involved in the pursuit at all.” We agree. Viewing the evidence in the light most favorable to Argabrite, no reasonable juror could conclude that Adkins acted with malicious purpose, in bad faith or in a wanton or reckless manner. Accordingly, he is entitled to immunity under R.C. 2744.03(A)(6)(b).

{¶ 19} We turn next to Montgomery County Sheriff Deputy Ball, who was at a substation on the route of the pursuit when he heard radio traffic describing a vehicle and indicating that Miami Township officers were heading into Washington Township, where he was located. Ball got into his cruiser and turned north on McEwan Road. Shortly thereafter, the suspect passed Ball, heading south. Ball could see the township officers’ lights at the intersection of McEwan Road and State Route 725, so he momentarily activated his lights and siren, made a U-turn, and proceeded south behind the suspect. Ball had no intention of taking the lead in the pursuit or of catching up to the suspect; he was simply trying to keep the vehicle in sight. Ball testified that he activated his lights and siren when he approached intersections to alert other motorists and when he needed to pass other vehicles.

{¶ 20} The Miami Township officers gained ground on Ball on Spring Valley Pike, and he radioed for them to pass, pulled to the middle of the road, and slowed his vehicle. He was involved in the pursuit for a distance of two miles. After the township officers passed him, Ball continued driving west with his lights and siren off. He was at a nearby traffic light when he heard that the suspect had crashed.

{¶ 21} As confirmed by our own review of the evidence, the trial court aptly stated that “Ball engaged in the pursuit only at a distance and only at reasonable speeds. He broke off the pursuit in favor of the Miami Township officers well before the accident.” Gerald McDevitt and Stephen Ashton, expert witnesses for Argabrite, conceded that Ball stopped pursuing the suspect prior to the accident. But both claimed that Ball violated the sheriffs department’s pursuit policy. A violation of departmental policy, however, does not equate to per se recklessness. Anderson, 134 Ohio St.3d 380, 2012-Ohio-5711, 983 N.E.2d 266, at ¶ 37. Recklessness requires knowledge by the actor that his “conduct will in all probability *355result in injury.” O’Toole v. Denihan, 118 Ohio St.3d 374, 2008-Ohio-2574, 889 N.E.2d 505, paragraph three of the syllabus. Without evidence of that knowledge, evidence of a policy violation demonstrates negligence, at best. Id. at ¶ 92. Here, the record contains no evidence that Ball knew either that he was violating departmental policy or that the violation would in all probability result in injury. Accordingly, we conclude that no reasonable juror could find that Ball acted with malicious purpose, in bad faith or in a wanton or reckless manner. He is therefore entitled to immunity.

{¶ 22} We now turn to the Miami Township police department employees— Deputy Chief DiPietro and Officers Neer and Stites—beginning with DiPietro.

{¶ 23} Sometime before noon on the day of the pursuit, DiPietro heard a radio report of a burglary in Washington Township and that Miami Township Police Sergeant Rex Thompson was looking for the suspect’s vehicle. DiPietro knew at that time that at least one other officer was pursuing the suspect. The Miami Township police department’s pursuit- policy limits pursuits to instances in which an officer has probable cause to believe that the suspect has committed or is about to commit a violent felony, which is specifically defined to include burglary. Thompson, as the shift supervisor, would have been responsible for control of the pursuit at the outset.

{¶24} At 11:54 a.m., DiPietro heard Thompson relay that he was “out of service.” DiPietro—being the next highest-ranking officer listening to the radio—took control of the pursuit and asked pursuing officers for their locations and information. He intended to have other officers get ahead of the pursuit and deploy Stop Sticks to stop the suspect’s vehicle. But DiPietro was in control of the pursuit for only about three minutes before the suspect crashed at 11:57 a.m. He did not see any of the pursuit. And none of the information he received from the other officers led him to believe that termination of the pursuit was necessary.

{¶ 25} Assuming, for purposes of summary judgment, that DiPietro violated the department’s pursuit policy, as Argabrite’s experts contend, evidence of a violation of departmental policy does not create a genuine issue of material fact as to whether the violator acted with malicious purpose, in bad faith or in a wanton or recklessness manner without evidence that the violator was aware that his “conduct [would] in all probability result in injury.” O’Toole, 118 Ohio St.3d 374, 2008-Ohio-2574, 889 N.E.2d 505, at paragraph three of the syllabus. After taking control of the pursuit, DiPietro requested information from the officers involved and determined that none of that information required terminating the pursuit. The record contains no evidence that DiPietro knew that his actions constituted a violation of departmental policy or, even if so, that the violation would in all probability result in injury. In short, the record contains no evidence to support *356a finding that DiPietro acted maliciously, in bad faith or in a wanton or reckless manner. He is, therefore, immune from liability.

{¶ 26} Finally, we turn to Officers Neer and Stites. As with the other officers, Argabrite’s experts’ opinions with respect to Neer and Stites involve those officers’ supposed violations of their departmental pursuit policy in initiating and continuing the pursuit. Ashton, for instance, testified that Neer and Stites violated the Miami Township pursuit policy by continuing the pursuit when the risk to the public outweighed engaging in the pursuit, when the risk to personal safety and the safety of others outweighed the danger if the suspect was not apprehended and when, because they knew the suspect’s identity, the risk from the attempt to capture outweighed the risk of the suspect’s escape. But again, Ashton’s testimony creates at most a question whether the officers violated the departmental policy, not a question whether they acted with malicious purpose, in bad faith or in a wanton or reckless manner.

{¶27} Stites first encountered the suspect’s vehicle on the day in question when he saw it turn into a residential driveway at an address known to Stites because of a previous incident he had investigated. Stites parked his cruiser on the street and saw Thompson pull into the driveway behind the suspect. Stites was approaching the driveway on foot when the suspect backed his car into Thompson’s cruiser and sped off behind the house and through the yard. When Stites returned to his cruiser, Neer passed him, heading in the direction of the suspect. Stites then began to pursue the suspect with “quite a bit of distance” between himself and Neer.

{¶ 28} Neer first saw the suspect driving through the residential yard and realized that the suspect was attempting to flee. He then activated his lights and siren and informed dispatch that he was going to pursue the suspect, whose identity he did not know. At some point early in the pursuit, Stites fell in line behind Neer.

{¶ 29} Neer and Stites described traffic during the pursuit as light and the weather conditions as sunny. Neer testified that throughout the pursuit, the suspect slowed down when proceeding through intersections to avoid an accident. In accordance with the department’s pursuit policy, Stites called out street names over the radio so that other officers would know their location and the direction in which they were heading. Neer and Stites used their overhead lights and sirens throughout the pursuit.

{¶ 30} Applying Fabrey, 70 Ohio St.3d 351, 639 N.E.2d 31, and Anderson, 134 Ohio St.3d 380, 2012-Ohio-5711, 983 N.E.2d 266, the court of appeals concluded that “even if there is a factual question as to whether either Neer or Stites violated their pursuit policy, there is no evidence to conclude that either knew that the violation would probably cause someone injury.” 2015-Ohio-125, 26 *357N.E.3d 879, at ¶ 25. We agree. Our review of the record in the light most favorable to Argabrite reveals no evidence from which reasonable minds could conclude that Neer or Stites acted with knowledge that they were either violating departmental policy or that the violations would in all probability result in injury. Without that evidence, then, there is no basis for a finding of wanton or recklessness conduct, and they are immune from liability.

Conclusion

{¶ 31} We reject the reasoning of Whitfield, 167 Ohio App.3d 172, 2006-Ohio-2917, 854 N.E.2d 532, and Lewis, 75 Ohio App.3d 453, 599 N.E.2d 814, and the no-proximate-cause rule as contrary to the immunity the General Assembly prescribed in R.C. 2744.03(A)(6)(b). Law-enforcement officers are immune from liability unless they act maliciously, in bad faith or in a wanton or reckless manner. Given officers’ statutory duties to arrest and detain individuals violating the law, the burden necessary to deny immunity to those officers is onerous.

{¶ 32} Although we reject the lower courts’ application of the no-proximate-cause rule, our review of the evidence and application of R.C. 2744.03(A)(6)(b) demonstrates that the officers are nevertheless entitled to immunity and to summary judgment. Accordingly, although on a different ground, we affirm the court of appeals’ judgment affirming the trial court’s entry of summary judgment in favor of the officers.

Judgment affirmed.