Thompson v. Smith

Dlane V. Grendell, Presiding Judge,

dissenting.

{¶ 83} I respectfully dissent. While Miss Thompson’s death was tragic, Officer Smith’s operation of his vehicle did not constitute willful or wanton misconduct. Wanton misconduct “comprehends an entire absence of all care for the safety of others and an indifference to consequences.”

Tighe v. Diamond

(1948), 149 Ohio

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St. 520, 526, 37 O.O. 243 , 80 N.E.2d 122 . Willful misconduct “implies intent, but the intention relates to the misconduct and not merely to the fact that some specific act, such as operating an automobile, was intentionally done.” Id. at 527, 37 O.O. 243 , 80 N.E.2d 122 .

{¶ 84} Officer Smith’s behavior did not reflect a deliberate or reckless disregard for the safety of others; he utilized a degree of care in response to the emergency call. He testified that he drove approximately 35 to 45 miles per hour, in a 45-mile-per-hour zone, with clear weather and visibility. While there may be differing views about Smith’s speed, “[t]he parties’ dispute as to * * * his actual speed does not * * * preclude a grant of summary judgment.”

Ybarra v. Vidra,

6th Dist. No. WD-04-061, 2005-Ohio-2497 , 2005 WL 1201224 , at ¶ 18. Although Smith did not activate his flashing lights or siren, Smith was trained that he could use discretion as to whether to utilize the overhead lights and/or siren on his cruiser when responding to an emergency call. Smith did not drive through red traffic lights. He testified that he slowed for a red light, waiting until the signal turned green, and then proceeded through the intersection. Smith observed Cassandra Thompson running across the road, failing to make use of the nearby crosswalk, and failing to look at the oncoming traffic. He attempted to brake; however, he could not avoid Thompson. Under the overall circumstances, there was not a great probability that harm would occur, absent someone crossing the street outside of a crosswalk. Smith had a reasonable expectation that he could drive at 11:30 p.m. in a lane unimpeded by a pedestrian, who faded to utilize the crosswalk and yield to oncoming traffic by running across the street. Officer Smith attempted to stop his vehicle, and he obeyed traffic lights. The facts presented do not demonstrate that Smith was indifferent to the safety of others and/or that he deliberately failed to discharge some duty necessary to safety. See

Tighe,

149 Ohio St. at 527 , 37 O.O. 243 , 80 N.E.2d 122 .

{¶ 85} When Officer Smith received the call from dispatch, it was late at night; he used his authorized discretion and chose not to utilize the lights and siren on his cruiser. At most, his conduct rises to negligence, and then, only with respect to his speed. This court has previously held that when “[considering the totality of the evidentiary materials” if “there is no evidence that [the][o]fficer * * * acted in deliberate or reckless disregard for the safety of others” then “as a matter of law, there is no material issue of fact regarding whether [the] [o]fficer[’s] * * * conduct constituted ‘willful or wanton misconduct’ ” and summary judgment should be granted.

Rodgers v. DeRue

(1991), 75 Ohio App.3d 200, 205 , 598 N.E.2d 1312 .

{¶ 86} Officer Smith’s conduct did not rise to the level of willful, wanton, or reckless misconduct. The city of Cortland, the Cortland Police Department, and

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Officer Smith are entitled to immunity under R.C. Chapter 2744 and, accordingly, summary judgment was warranted.

{¶ 87} Since this case should be reversed on the first assignment of error, there is no need to address the second assignment of error because it is moot. The judgment of the Trumbull County Court of Common Pleas should be reversed.