The opinion
[Cite as Wrinn v. Ohio State Hwy. Patrol, 2011-Ohio-5963.]
Court of Claims of Ohio
The Ohio Judicial Center
65 South Front Street, Third Floor
Columbus, OH 43215
614.387.9800 or 1.800.824.8263
www.cco.state.oh.us
EUGENE WRINN, JR.,
Plaintiff, Case No. 2006-05934
v. Judge Joseph T. Clark
OHIO STATE HIGHWAY PATROL,
Defendant. DECISION
{¶1} An evidentiary hearing was conducted in this matter to determine whether
Daren Johnson and Kenneth Koverman are entitled to civil immunity pursuant to R.C.
2743.02(F) and 9.86.1 The case arises out of a traffic accident that occurred on
September 16, 2005, at approximately 1:45 a.m. Plaintiff was driving his pick-up truck
with two passengers on northbound Interstate 75 (I-75) just north of State Route 309 in
Allen County, when it spun on wet pavement and came to rest facing south in the left
lane. The vehicle was then struck head-on by a semi truck traveling northbound. The
semi truck came to rest in the right hand lane. Plaintiff was rendered unconscious by
the collision; the passengers were coherent and able to climb out of the truck. Plaintiff
has no memory of the accident or of the events that followed.
{¶2} R.C. 2743.02(F) states, in part:
{¶3} “A civil action against an officer or employee, as defined in section 109.36 of
the Revised Code, that alleges that the officer’s or employee’s conduct was manifestly
outside the scope of the officer’s or employee’s employment or official responsibilities,
or that the officer or employee acted with malicious purpose, in bad faith, or in a wanton
or reckless manner shall first be filed against the state in the court of claims, which has
1
Plaintiff’s May 20, 2011 motion for leave to exceed the 15 page limitation for his proposed findings of fact
and conclusions of law is GRANTED.
exclusive, original jurisdiction to determine, initially, whether the officer or employee is
entitled to personal immunity under section 9.86 of the Revised Code and whether the
courts of common pleas have jurisdiction over the civil action.”
{¶4} R.C. 9.86 states, in part:
{¶5} “[N]o officer or employee [of the state] shall be liable in any civil action that
arises under the law of this state for damage or injury caused in the performance of his
duties, unless the officer’s or employee’s actions were manifestly outside the scope of
his employment or official responsibilities, or unless the officer or employee acted with
malicious purpose, in bad faith, or in a wanton or reckless manner.”
SERGEANT JOHNSON
{¶6} Sergeant Daren Johnson testified that he has been employed with
defendant for 18 years and has been assigned to the Lima Post since 2002. Johnson
testified that at approximately 1:30 a.m. on September 16, 2005, he was on duty in his
patrol car when he heard over his radio that an accident had occurred on I-75 just north
of State Route 309. According to Johnson, dispatch directed the accident report to
Trooper T.K. Manley, but since he was closer to the scene than Manley was, he notified
dispatch that he would respond. Johnson related that when he arrived on the scene of
the accident, he observed a pick-up truck facing southbound in the left northbound lane
of I-75, and a semi truck facing northbound in the right lane. Johnson stated that he
entered the area using the on-ramp from State Route 309, parked his patrol car in the
left lane approximately 20 yards south of the pick-up truck, and activated his emergency
lights. According to Johnson, vehicles were able to drive around the accident scene
using the 309 ramp, and continued to do so until he ordered a road block several hours
after his arrival on the scene. However, he stated that traffic was not able to travel in
the northbound lanes of I-75 due to the positions of the semi truck and his patrol car.
Johnson testified that he was the first law enforcement officer to arrive on the scene,
which establishes him as the “officer in charge” until a more senior or higher ranking
officer arrives.
{¶7} Johnson testified that as he approached the pick-up truck, he noticed a
group of people standing near the northbound/southbound lane barrier wall between
himself and the pick-up. Johnson related that one of the individuals approached him
and stated that he had been a passenger in the pick-up and that he wanted Johnson to
“check on his buddy” who was still in the pick-up. Johnson stated that as he
approached the pick-up he observed plaintiff slumped over and motionless, and that his
initial thought was that the individual was dead. According to Johnson, however, as he
approached, plaintiff “came to” and exited the pick-up. Johnson testified that he
instructed plaintiff to remain in the pick-up so that he could check his injuries, but that
plaintiff pushed past him and walked in a northerly direction. Johnson stated that he
ordered plaintiff to remain in the truck, but that plaintiff did not respond, comply, or
acknowledge his instructions. Johnson testified that he then grabbed plaintiff around
the upper arms from behind and attempted to stop him, but that plaintiff “shook [him] off”
and continued walking north for a few moments, and then turned south. Johnson stated
that as plaintiff continued south, he grabbed him a second time and ended up face-to-
face with plaintiff. According to Johnson, he again instructed plaintiff to stop and that
plaintiff responded by grabbing him around the biceps so that the two men had their
arms around each other. Johnson stated that he instructed plaintiff two more times to
let him go with no response; and that the third time he instructed plaintiff to let him go or
he would hit him. Johnson testified that plaintiff did not comply, that he repeated the
threat, and that when plaintiff again did not comply, he struck plaintiff with his flashlight.2
{¶8} According to Johnson, he swung the flashlight in an overhand motion and
struck plaintiff in the left shoulder and neck area three times. Johnson stated that after
the third strike, plaintiff fell to his knees and wrapped his arms around his waist in a type
of “bear hug.” Johnson testified that soon thereafter one of the bystanders “pulled him
free” and plaintiff simply turned and walked southward once again. Johnson states that
he pursued plaintiff, approached him from behind, and attempted to stun him by holding
a Taser against the back of plaintiff’s leg and activating it. Johnson related that plaintiff
went down to one knee after he used the Taser, but that he was not incapacitated to the
point that Johnson could get him under control.
{¶9} Johnson testified that after he used the Taser, plaintiff again changed
direction and began walking north. Johnson stated that he returned to his patrol car and
2
The flashlight was identified to the court as being constructed of black metal, approximately 14 inches in
issued a “Signal 88” call on his radio. According to Johnson, the Signal 88 is broadcast
to all patrol units operating on his radio frequency and to the post dispatch, and signifies
an “officer in distress.” Johnson testified that after issuing the call, he again pursued
plaintiff and caught up with him near the cab of the semi truck. Johnson stated that he
once again grabbed plaintiff and attempted to subdue him with “elbow strikes,” “knee
strikes,” and “forearm blows.” According to Johnson, at this point he was attempting to
place plaintiff under arrest. However, Johnson admitted that he never informed plaintiff
that he was under arrest.
{¶10} Johnson testified that while he was attempting to subdue plaintiff at the
front of the semi truck, Trooper T.K. Manely arrived on the scene. According to
Johnson, he and Manely were able to pin plaintiff to the ground, but that plaintiff
continued to struggle. Johnson stated that soon after Manely arrived, several officers
from various area law enforcement agencies also arrived on the scene. Johnson
testified that these officers joined in the effort to subdue plaintiff such that at one point
there were six or seven officers “on top of” plaintiff. According to Johnson, several
techniques were employed against plaintiff by the various officers, including knee
strikes, hand strikes, elbow strikes, blows with flashlights, pepper spray, a Taser, and at
least one officer applied pressure to plaintiff’s throat.
{¶11} Johnson testified that eventually the officers were able to place handcuffs
on plaintiff and that plaintiff was then placed on a “spine board” and Johnson requested
that emergency medical personnel administer a drug to “knock [plaintiff] out.” Plaintiff
was thereafter transported to an area hospital for medical treatment. Johnson testified
that he has investigated over 800 automobile accidents in his career but that he had
never encountered an accident victim who acted in such a way.
{¶12} A video of the incident recorded from the “dash cam” of Johnson’s vehicle
and two videos recorded from the “dash cam” of Lima police officers’ vehicles were
admitted into evidence and largely corroborate Johnson’s version of events. (Plaintiff’s
Exhibits 1, 2, and 27.)
{¶13} Plaintiff asserts that Johnson acted in a wanton and reckless manner in
four ways: 1) he failed to properly secure the accident scene upon his arrival; 2) he did
length, and weighing approximately two pounds.
not properly assess plaintiff’s injures; 3) he used improper and excessive force against
plaintiff; and 4) it was inappropriate to issue “Signal 88.” Plaintiff argues that as a result
of his actions Johnson is not entitled to civil immunity pursuant to R.C. 2743.02(F) and
9.86.
{¶14} The issue whether an employee is entitled to immunity is a question of law.
Nease v. Medical College Hosp., 64 Ohio St.3d 396, 1992-Ohio-97, citing Conley v.
Shearer, 64 Ohio St.3d 284, 292, 1992-Ohio-133. The question whether an employee
acted outside the scope of his employment, or with malicious purpose, in bad faith, or in
a wanton or reckless manner is one of fact. Tschantz v. Ferguson (1989), 49 Ohio
App.3d 9. Plaintiff bears the burden of proving that the state employee should be
stripped of immunity. Fisher v. Univ. of Cincinnati Med. Ctr. (Aug. 25, 1998), Franklin
App. No. 98AP-142.
{¶15} “Malicious purpose encompasses exercising ‘malice,’ which can be defined
as the willful and intentional design to do injury, or the intention or desire to harm
another, usually seriously, through conduct that is unlawful or unjustified. Bad faith has
been defined as the opposite of good faith, generally implying or involving actual or
constructive fraud or a design to mislead or deceive another. Bad faith is not prompted
by an honest mistake as to one’s rights or duties, but by some interested or sinister
motive. Finally, reckless conduct refers to an act done with knowledge or reason to
know of facts that would lead a reasonable person to believe that the conduct creates
an unnecessary risk of physical harm and that such risk is greater than that necessary
to make the conduct negligent. The term ‘reckless’ is often used interchangeably with
the word ‘wanton’ and has also been held to be a perverse disregard of a known risk.”
Caruso v. State (2000), 136 Ohio App.3d 616, 620-621. (Internal citations omitted.)
{¶16} In the continuum between negligence and intentional misconduct, “[w]anton
misconduct is a degree greater than negligence.” Brockman v. Bell (1992), 78 Ohio
App.3d 508, 515. “‘[M]ere negligence is not converted into wanton misconduct unless
the evidence establishes a disposition to perversity on the part of the tortfeasor.’”
Fabrey v. McDonald Village Police Dept., 70 Ohio St.3d 351, 356, 1994-Ohio-368,
quoting Roszman v. Sammett (1971), 26 Ohio St.2d 94, 96-97. An employee’s wrongful
conduct, even if it is unnecessary, unjustified, excessive or improper, does not
automatically subject the employee to personal liability unless the conduct is so
divergent that it severs the employer-employee relationship. Elliott v. Ohio Dept. of
Rehab. & Corr. (1994), 92 Ohio App.3d 772, 775, citing Thomas v. Ohio Dept. of
Rehab. & Corr. (1988), 48 Ohio App.3d 86, 89.
{¶17} In support of his claim that Johnson is not entitled to civil immunity, plaintiff
presented the expert testimony of Donald J. Van Meter, Ph.D. Van Meter is the
principal of Donald J. Van Meter and Associates, Inc., a firm that provides training and
consulting services to law enforcement and public safety organizations. Types of
training provided by the firm include management, discipline, supervision, and use of
force training. With respect to his experience and education, Van Meter was employed
by defendant from 1963 through 1978, and he eventually reached the rank of lieutenant
and served as a physical fitness and self-defense instructor. He is certified to train
instructors at the Ohio Peace Officers Training Academy. Van Meter testified that he
personally spends between 65 and 75 percent of his time training and the remainder of
his time consulting. In terms of consulting, Van Meter testified that he prepares policy
manuals for police departments, develops performance evaluation systems, and
develops organizational structure plans for police departments. In preparation for his
testimony, Van Meter examined the facts and circumstances surrounding this case,
defendant’s policies and procedures, and reports generated by defendant as a result of
this incident. Van Meter testified that after doing so, he formed an opinion as to the
actions of both Johnson and Koverman.
{¶18} With respect to Johnson securing the scene of the accident, Van Meter
testified that, in his opinion, Johnson acted recklessly by not securing the scene in such
a way as to prevent traffic from progressing through or around the scene. Van Meter
opined that Johnson’s first order of business should have been to stop traffic completely
and then to take all reasonable efforts to protect the integrity of the scene and guard
against additional injuries. Van Meter opined that a reasonable officer would have
known that failure to properly secure the scene would create an unnecessary risk of
physical harm.
{¶19} In assessing plaintiff’s injuries, Van Meter opined that Johnson showed a
complete lack of concern that plaintiff had suffered a serious head injury as a result of
the accident and treated him as if he were fully capable of understanding and following
commands. Van Meter further opined that Johnson acted improperly when he grabbed
and attempted to restrain plaintiff without thoroughly assessing his injuries, especially in
light of the fact that plaintiff was clearly unresponsive to verbal commands. Van Meter
testified that by grabbing plaintiff shortly after encountering him, he unnecessarily
escalated the danger.
{¶20} Van Meter further testified that Johnson acted recklessly when he struck
plaintiff in the neck and head with his flashlight. According to Van Meter, striking an
individual in the manner Johnson testified that he struck plaintiff carries a high risk of
serious injury and even death. Van Meter opined that Johnson therefore acted
recklessly in striking plaintiff in such a manner and that nothing in his encounter with
plaintiff supports Johnson’s decision to use such force.
{¶21} Van Meter stated that Johnson continued to act recklessly in his pursuit of
plaintiff as he wandered around the scene of the accident. Specifically, Van Meter
testified that Johnson acted recklessly when he tried to subdue plaintiff by using his
Taser in the “least effective” way and in his subsequent attempts to physically take
plaintiff to the ground.
{¶22} Van Meter was also critical of Johnson’s decision to issue the Signal 88.
According to Van Meter, the Signal 88 is essentially an “officer in distress” call and that
it is primarily used when an officer has been injured or is in serious danger. Van Meter
opined that the situation at issue did not warrant the Signal 88 and that it would have
been more appropriate to simply call for “backup.” Van Meter further opined that
Johnson was reckless in issuing such a call inasmuch as the officers who responded to
it mistakenly assumed that plaintiff posed a serious danger to Johnson and to
themselves.
{¶23} In sum, Van Meter testified that, in his opinion, Johnson wantonly failed to
exercise any care whatsoever in that: he failed to properly secure the accident scene
upon his arrival; he failed to consider the severity and nature of plaintiff’s injuries when
he first interacted with him and never sought help from bystanders or other first
responders; and that he unnecessarily escalated the encounter by grabbing and holding
on to plaintiff, and eventually striking him with his flashlight and employing his Taser
improperly.
{¶24} Major Kevin Teaford has been employed by defendant since 1988 and
currently serves as the commander of defendant’s critical information and
communications center. In preparation for his testimony, Teaford reviewed case
investigation forms, witness statements, the crash investigation report, reports
generated as a result of administrative investigations of Johnson, and the “response to
resistance review” investigation report regarding the incident. Teaford testified that the
response to resistance review begins with an officer of higher rank than the officer
involved in the case collecting evidence, taking photographs of the scene, and
interviewing witnesses. When that officer completes the investigation, it is reviewed by
the post commander, who determines if the actions of the officer involved were
reasonable, if any rules were violated, and whether training issues need to be
addressed with the officer involved in the incident. Thereafter, the district commander
reviews the incident and performs a similar review. The investigation is then submitted
to the administrative investigations unit for a third review. According to Teaford, if it is
then determined that something out of the oridinary occurred, the incident is reviewed
by a committee comprised of several members of defendant’s command staff, who
conduct a similar review. If it is determined that the officer acted improperly, a further
investigation would be carried out by either that officer’s supervisor or the administrative
investigations unit.
{¶25} Teaford testified that he reviewed all of the above documents and reports
in forming an opinion as to Johnson’s actions during the incident. Teaford testified that,
in his opinion, Johnson acted within the guidelines and policies of defendant and did not
violate any rules or regulations in his dealings with plaintiff. He further opined that
Johnson acted reasonably at all times on September 16, 2005.
{¶26} Teaford testified that the responsibilities of the first officer arriving at the
scene of an accident are to: assess the scene; secure the scene; attend to any injured
person; protect the scene from further damage; and finally to collect evidence and take
photographs of the scene. Teaford stated that he did not feel that Johnson violated any
policy in his handling of the accident scene at issue, other than failing to activate the
microphone for his “dash-cam” when he exited his vehicle.
{¶27} With respect to Johnson’s use of his flashlight to strike plaintiff, Teaford
testified that the use of a flashlight in such a manner as described by Johnson is
categorized by defendant as “less than lethal” force. Teaford stated that in his opinion,
Johnson did not violate any rule or regulation when he used his flashlight to strike
plaintiff and that such a use was not unreasonable.
{¶28} Based upon the testimony and evidence presented, the court finds that
Johnson did not act in a wanton or reckless manner at any time during the incident on
September 16, 2005. The court concludes that Johnson’s actions do not rise to the
level of wanton or reckless behavior and that such actions did not create an
unnecessary risk of harm to plaintiff. Accordingly, the court finds that Johnson is
entitled to civil immunity for his actions on September 16, 2005.
LIEUTENANT KOVERMAN
{¶29} Lieutenant Kenneth Koverman testified that he began his training with
defendant in 1978 and served as the commander of the Lima post from 2001 until his
retirement in 2006. Koverman was Johnson’s direct superior. Plaintiff asserts that
Koverman wantonly and recklessly disregarded Johnson’s history of and propensity for
violence and failed to adequately discipline and supervise Johnson.
{¶30} Koverman testified that in his capacity as Johnson’s supervisor it had been
necessary to discipline him on occasion. One such occasion involved an incident
between Johnson and Sergeant Cosgrove. According to Koverman, both Johnson and
Cosgrove were disciplined for being involved in a verbal confrontation in front of
subordinates on January 24, 2004. Koverman stated that he investigated the incident
and concluded that Johnson’s actions during the confrontation were unprofessional,
unnecessary, and created a hostile work environment. Koverman further testified that
immediately after the confrontation with Cosgrove, Johnson left the post in his patrol
vehicle. According to Koverman, while away from the post, Johnson arrested an
individual on suspicion of operating a motor vehicle while intoxicated. After the arrest,
the individual filed a “citizen complaint” concerning his treatment by Johnson.
Koverman investigated the allegations of the complaint and testified that as a result, he
determined that Johnson used improper force and inappropriate language during the
encounter. According to Koverman, as a result of these two incidents, Johnson was
issued a three-day suspension with two days held in abeyance for two years pending
good behavior. (Plaintiff’s Exhibits 19, 21.)
{¶31} Koverman further testified that Johnson was issued a written reprimand as
a result of a May 28, 2004 incident where Johnson provoked an individual into
threatening him and then stunned the man with his Taser. Koverman stated that
Johnson was also directed to take classes on how to deal with difficult people.
(Plaintiff’s Exhibit 20.) Koverman also stated that in August 2005, he received an
anonymous letter regarding Johnson’s job performance. (Plaintiff’s Exhibit 23.)
According to Koverman, he forwarded the letter up the chain of command and an
investigation was conducted. (Plaintiff’s Exhibit 30.)
{¶32} With regard to the incident with plaintiff, Koverman testified that on
September 16, 2005, he was at home in bed when he received a call about the
accident. According to Koverman, he arrived on the scene at approximately 2:45 a.m.,
after plaintiff had been transported to the hospital, spoke with the sergeant in charge of
the scene, and then went to the hospital. Koverman prepared a “response to
resistance” report regarding the incident because Johnson used his Taser and force
when dealing with plaintiff. (Plaintiff’s Exhibit 31.)
{¶33} Van Meter also testified on plaintiff’s behalf with regard to Koverman’s
management and supervision of Johnson. Van Meter opined that a reasonable
supervisor with the knowledge of Johnson’s disciplinary problems as outlined above
should know that such problems were going to result in harm to others if not corrected.
Van Meter testified that Johnson was an employee with problems and that discipline
had little or no effect on his behavior. Specifically, Van Meter stated that Johnson’s
actions showed a lack of respect for Koverman and that Koverman failed to create an
atmosphere at the post that would deter Johnson’s aggressive behavior.
{¶34} Van Meter further opined that the proper supervisory action to take would
have been to put Johnson under “direct supervision” and have him make regular reports
as to his actions and how they promoted defendant’s mission. According to Van Meter,
Koverman improperly deferred his disciplinary duties up the chain of command instead
of being directly involved. Van Meter testified that Johnson’s disciplinary history should
have signaled to Koverman that Johnson had violent tendencies and that those
tendencies were going to result in harm if he were not more closely supervised. Van
Meter concluded that by not managing Johnson’s propensity for abusing his authority as
a trooper, Koverman recklessly created an unreasonable risk to members of the public.
According to Van Meter, Koverman should have known that Johnson was going to take
his aggression out on someone who challenged his authority.
{¶35} Based upon the testimony and evidence provided, the court finds that
plaintiff has failed to establish that Koverman acted in a wanton or reckless manner in
his supervision and discipline of Johnson. The court is unpersuaded by Van Meter’s
opinion that Koverman’s supervision of Johnson rose to the level of reckless or wanton
conduct. Accordingly, the court finds that Koverman is entitled to civil immunity for his
supervision of Johnson.
Court of Claims of Ohio
The Ohio Judicial Center
65 South Front Street, Third Floor
Columbus, OH 43215
614.387.9800 or 1.800.824.8263
www.cco.state.oh.us
EUGENE WRINN, JR.,
Plaintiff, Case No. 2006-05934
v. Judge Joseph T. Clark
OHIO STATE HIGHWAY PATROL,
Defendant . JUDGMENT ENTRY
{¶36} The court held an evidentiary hearing to determine civil immunity pursuant
to R.C. 9.86 and 2743.02(F). Upon hearing all the evidence and for the reasons set
forth in the decision filed concurrently herewith, the court finds that Daren Johnson and
Kenneth Koverman are entitled to immunity pursuant to R.C. 9.86 and 2743.02(F) and
that the courts of common pleas do not have jurisdiction over any civil actions that may
be filed against them based upon the allegations in this case.
_____________________________________
JOSEPH T. CLARK
Judge
cc:
Cary R. Cooper Eric A. Walker
Jacqueline M. Boney James P. Dinsmore
Sarah K. Skow Assistant Attorneys General
900 Adams Street 150 East Gay Street, 18th Floor
Toledo, Ohio 43604 Columbus, Ohio 43215-3130
Filed October 17, 2011
To S.C. reporter November 18, 2011