applying a statute that immunized law enforcement officers operating a vehicle in response to an emergency call unless the operation of the vehicle was willful or wanton
How later courts described this case
- applying a statute that immunized law enforcement officers operating a vehicle in response to an emergency call unless the operation of the vehicle was willful or wanton
- "[W]hether particular acts demonstrate the presence of wantonness, recklessness, or merely negligence is normally a decision for the jury, based on the totality of the circumstances."
- “[Wjhether particular acts demonstrate the presence of wantonness, recklessness, or merely negligence is normally a decision for the jury, based on the totality of the circumstances.”
Written by the judges who cited it.
Later courts went against this
Overruled in part, on other grounds by Anderson v. City of Massillon, 134 Ohio St. 3d 380 (2012)
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.
Disagreed with by Argabrite v. Neer, 149 Ohio St. 3d 349 (2016)
{¶ 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).
The opinion
Brogan, J.,
concurring in part and dissenting in part.
{¶ 118} While I concur with the majority’s well-reasoned discussion of insurance coverage, I dissent from the decision on proximate cause. Accordingly, I would reverse the summary judgment in favor of the city and its police officers. In this regard, I agree with the dissenting judge in
Lewis,
who argued that “multiple actors may combine to provide causation in a given instance.”
Lewis,
75 Ohio App.3d at 459, 599 N.E.2d 814 (Cacioppo, J., dissenting).
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{¶ 119} Because Ohio follows the rule outlined in
Lewis ,
I will briefly refer to the law of other jurisdictions. Like Ohio, Maryland has a statute that waives immunity for damages caused by the negligent operation of vehicles of governmental employees. See
Boyer v. State
(1991), 323 Md. 558, 565 , 594 A.2d 121 . In
Boyer ,
Maryland’s highest court found that police officers owed a duty of care to an injured third party when they engaged in a high-speed chase of an allegedly intoxicated driver. Accordingly, the court refused to follow cases holding that the officers’ negligence was not the proximate cause of the injury. In this regard, the court observed:
{¶ 120} “The cases asserting lack of proximate cause, however, overlook the fact that there can be more than one cause of an injury. It is entirely foreseeable under certain circumstances that a police officer’s engagement in a high-speed chase could be a proximate cause of an injury to a third party struck by the pursued suspect. As some text writers have pointed out, an analysis involving proximate cause or intervening or superseding cause may not be appropriate in the type of case we have before us.” Id. at 587 , 594 A.2d 121, fn. 18 .
{¶ 121} As the Tennessee Supreme Court noted in
Haynes,
a substantial majority of jurisdictions now reject the rule of “no proximate cause.”
Haynes v. Hamilton Cty.
(Tenn.1994), 883 S.W.2d 606, 612 . I agree with the majority view.
{¶ 122} The United States Supreme Court has said that “the use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable. It is not better that all felony suspects die than that they escape.”
Tennessee v. Garner
(1985), 471 U.S. 1, 11 , 105 S.Ct. 1694 , 85 L.Ed.2d 1 .
Garner
involved a fleeing felony suspect who was fatally shot by a officer in order to prevent the suspect’s escape. Although the circumstances are somewhat different in the present case, I see little distinction between a bullet and a fleeing car that is being pursued. In both cases, deadly force is set in motion, and the probability is extremely high in pursuit cases that the chase will end in death or injury of the persons in the fleeing car, or of innocent third parties, or both.
{¶ 123} My research has disclosed many cases in Ohio alone where pursuits have ended in terrible crashes. This is an outcome that surely can be predicted, since such accidents happen with regularity when pursuit occurs. If police officers are not permitted to use deadly force and shoot fleeing felons, I see no reason they should be allowed to do essentially the same thing by engaging in high-speed pursuits. Indeed, one could make the argument that high-speed pursuits pose more inherent danger to the general public. Generally, officers hit individuals at whom they aim guns, but they rarely shoot innocent bystanders.
{¶ 124} After reviewing the Ohio cases that have applied
Lewis ,
I have trouble visualizing any set of circumstances in which an officer’s conduct would ever be
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considered outrageous, short of deliberately running a pursued car off the road or into another vehicle. I am compelled to this conclusion because I have not been able to find an Ohio case in which an officer’s conduct has been held outrageous or extreme, regardless of the circumstances of the pursuit. If courts intend to hold officers immune regardless of their conduct, we might as well admit that fact and concede that the exception to immunity is simply a convenient fiction. Accordingly, I dissent from the court’s opinion on proximate cause.