# Moore v. Honican

> Ohio Court of Appeals · May 4, 2011 · 194 Ohio App. 3d 135

URL: https://www.frixlaw.com/law-library/cases/6704001

## Case

- **Full name:** MOORE v. HONICAN
- **Court:** Ohio Court of Appeals
- **Decided:** May 4, 2011
- **Citations:** 194 Ohio App. 3d 135; 954 N.E.2d 1283
- **Precedential status:** Published
- **Opinion:** Concurring in part by Dinkelacker
- **Judges:** Dinkelacker, Fischer, Hildebrandt
- **Cited by:** 1 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6704001

## Opinion text

Dinkelacker, Presiding Judge,
concurring in part and dissenting in part.
{¶ 30} While I agree with much of the analysis outlined by the majority, I conclude that Moore presented insufficient evidence to overcome summary judgment on the issue of whether Honican had acted wantonly.
{¶ 31} Last year, this court addressed the level of misconduct required to constitute wantonness. 14 In that case, we wrote that “[wjanton or reckless misconduct is more than negligence. Wanton misconduct is the failure to exercise any care whatsoever. ‘[M]ere negligence is not converted into wanton misconduct unless the evidence establishes a disposition to perversity on the part of the tortfeasor.’ Such perversity must be under such conditions that the actor must be conscious that his conduct will in all probability result in injury.” 15 We noted that such conduct involves the actor “knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.” 16
*144 {¶ 32} As the Fifth Appellate District noted in March of this year, “[rjeckless misconduct differs from * * * that form of negligence which consists in mere inadvertence, incompetence, unskillfulness, or a failure to take precautions to enable the actor adequately to cope with a possible or probable future emergency, in that reckless misconduct requires a conscious choice of a course of action, either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man.” 17 The difference between reckless misconduct and negligence “is a difference in the degree of the risk, but this difference of degree is so marked as to amount substantially to a difference in kind.” 18
{¶ 33} In this case, I conclude that Honican’s “inattentiveness” failed to rise to the level of wanton misconduct as a matter of law. The accident occurred at midnight—a time when few motorists would be expected to be on the road. Honican’s attention was on his MDC, which was positioned on the dashboard nearly at eye level, for no more than 30 seconds. Further, the record reflects that while Honican was reprimanded for the accident, his use of the MDC did not violate the policies of the Hamilton County Sheriffs Department.
{¶ 34} Honican’s conduct did not establish a “disposition to perversity” that amounted to knowing that his conduct would in all probability result in injury. Honican’s conduct may have involved “inadvertence, incompetence, unskillfulness, or a failure to take precautions to enable the actor adequately to cope with a possible or probable future emergency,” but such conduct amounted to mere negligence. Since the risk that Honican’s conduct created was not “substantially greater than that which [was] necessary to make his conduct negligent,” I respectfully dissent from that portion of the majority’s opinion.
. Callender v. Schroder, 1st Dist. No. C-090803, 2010-Ohio-4473 , 2010 WL 3722782 .
. Id. at ¶ 8, quoting Fabrey v. McDonald Village Police Dept. (1994), 70 Ohio St.3d 351, 356 , 639 N.E.2d 31 , and Roszman v. Sammett (1971), 26 Ohio St.2d 94, 96-97 , 55 O.O.2d 165 , 269 N.E.2d 420 .
. Id., citing Cater v. Cleveland (1998), 83 Ohio St.3d 24, 33 , 697 N.E.2d 610 , quoting Marchetti v. Kalish (1990), 53 Ohio St.3d 95, 96 , 559 N.E.2d 699, fn. 2 .
. Burlingame v. Estate of Burlingame, 5th Dist. No. 2010-CA-00124, 2011-Ohio-1325 , 2011 WL 982490 , at ¶ 36.
. Id., citing Marchant v. Gouge, 187 Ohio App.3d 551 , 2010-Ohio-2273 , 932 N.E.2d 960, at ¶ 36 .

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6704001. Public record. Not legal advice.