IN THE SUPREME COURT OF OHIO

LoraN. Whitley . CASE NO.:

vs.

Appellant On Appeal from the HamiltonCounty Court of Appeals, FirstAppellate District

Progressive Preferred Insurance Cotnpany . Court of Appeals CaseNo.: C090284 (Consolidated with

Defendant, . Case No. C090240)and

Board of Conmiissioners of HamiltonCounty, Ohio,

and

Lariy Henderson,

and

Sheriff of Hamilton County Ohio

Appellees

and

Jeffrey S. Whitley

Defendant

MEMORANDUM IN SUPPORT OF JURISDICTIONOF APPELLANT LORA N. WHITLEY

ihomas J. Ruwe (0020505) (COUNSEL OF RECORD)5710 Wooster Road, Suite 211Cincim-iati, Ohio 45227Phone: (513) 271-0808Fax: (513) 322-4453tiruwe(cr^fuse.nct

COUNSEL FOR APPELLANT, LORA N. WHITLEY

Mark C. Vollman (0007040) (COUNSEL OF RECORD)Thomas E. Deye (0021508)Hamilton County Prosecutor's Office230 East Ninth Street, Suite 4000Cincinnati, Ohio 45202-2151Phone: 513-946-3014Fax: 513-946-3018mark.vollmanghcpros.ortom.deye a,hcpros.org

COUNSEL FOR APPELLEES, BOARD OF COUNTY COMMISSIONERS OFIIAMILTON COUNTY OHIO, LARRY HENDERSON, AND SHERIFF OF HAMILTONCOUNTY, OHIO

Einily T. Supinger, (0074006) (COUNSEL OF RECORD)Daniel J. McCarthy, (0078388)Manley Burke225 W. Court StreetCincinnati, Ohio 45202Telephone: 513-721-5525Fax: 513-721-4268ets manleybprke.comdmccarthy(&.man1eyburke.com)

COUNSEL FOR DEFENDANT.IEFFREY S. WHITLEY CONSOLIDATED CASE NO.C090240

TABLE OF CONTENTS

Pame

EXPLANATION OF WHY THIS IS A CASE OFPUBLIC OR GREAT GENERAL INTEREST ......................................................... 1

STATEMENT OF THE CASE AND FACTS ......................................................... 2

ARGUMENT IN SUPPORT OF PROPOSITION OF LAW ................................... 6

Proposition of Law No. l: Where a police officer entereda high-traffic, multiple-lane intersection against a red light,while traveling at 30 mph, failed to slow down before enteringthe intersection, drove left of center and outside the nonnallanes of traffic, with obstructed visibility, and further, failedto activate his lights or his siren, it is a question of fact for thejury as to whether his conduct was willful, wanton, or reckless .................... 6

CONCLUSION ........................................................................................................ 14

CERTIFICATE OF SERVICE .................. ...............................................................15

APPENDIX Anpx.Page

Judgment Entry Granting Reconsideration, VacatingThe Judgment Entry and Decision of December 31, 2009,And Entering Decision of the Hamilton CountyCourt of Appeals (Februaiy 5, 2010) ............................................................. I

Decision of the Court of the Hamilton CountyCourt of Appeals (February 5, 2010) ............................................................. 3

Entry Transmitting Errata of the Hamilton CountyCourt of Appeals (March 4, 2010) ................................................................12

I. EXPLANATION OF WHY THIS IS A CASE OF PUBLICOR GREAT GENERAL INTEREST

R.C. 4511.03 and R.C. 4511.041 require a police officer, upon approaching a red light

when responding to an ernergency run, to do four things: (1) Slow down as necessary for safety

to traffic; (2) Proceed cautiously past the red light with due regard for the safety of all persons

using the street; (3) Display at least one flashing, rotating, or oscillating fight; and (4) Give an

audible signal by siren, exhaust whistle, or bell. The SherifPs deputy in this case entered a high-

traffic, multiple-lane intersection against a red light while traveling 30 niph. He was driving left

of center, outside the noimal lanes of traffic. His visibility to other cars approaching the

intersection was obstructed. But the deputy did not stop or even slow down. He did not display

flashing lights. He did not use his siren. And he nearly killed two people on a motorcycle, who

had proceeded through the intersection with the green light. So, were the lower courts correct

when it found that no reasonable person could conclude that the deputy acted in a willful,

wanton, or reckless manner?

This is a case of public or great general interest because it would deterrnine whether the

laws of this state provide protection to its citizens from the actions of a police officer who is

responding to an emergency.

The iinmanity given to a police officer during an emeigency iun is not unconditional. It is

specifically conditioned on his compliance with statutes enacted for the safety of the public.

Thus, the legislature has balanced: (1) the need of the police officer to respond during an

emergency; and (2) the need of the public for its own safety while using the streets. But the

Decision of the Court of Appeals in this case destroys that balance. It holds that a police officer

may violate every provision of both of these safety statutes without fear of any consequence. It

has removed all conditions and restraints for the police officer to observe on an emergency run.

1

Thus, the actual effect of this Decision is to nullify R.C. 4511.03 and R.C. 4511.041 by

judicial interpretation, and thereby transfonn R.C. 2744.02 and R.C. 2744.0 into super-immunity

statutes. Under the protection of this Decision, a police officer may violate every provision of

both statutes, and completely escape all responsibility for any harm done. And correspondingly,

no citizen has any remedy for his injuries caused by a police officer during an ernergency run,

even though these two statutes exist specifically for the protection of every motorist.

All judicial activism - whether liberal or conservative -- is rooted in the nofion that

judges are wiser than legislators. In this case, the Court of Appeals has told every police officer

in this state that, during an eniergency run, they may disregard the mandates of the legislature

contained in R.C. 4511.01 and R.C. 4511.041. They may do exactly what the deputy did in this

case, without fear of any consequences whatsoever. This oase has set a new standard for future

police conduct during an ernergency run. From this point forward, it makes no legal difference

whether a police officer enters an intersection against a red light without slowing down, without

using caution, and without using his lights or siren. Law enforcement may break the laws with

impunity and with immunity, and there are no consequences. And worse, there is no remedy for

the injured citizen.

This cannot be right; this cannot be the law. Thus, it is a matter of great public interest for

this Court to oveiTule this Decision.

11. STATEMENT OF THE CASE AND FACTS

A. Statement of the Case

On June 25, 2007 Plaintiff-Appellant Lora N. Whitley filed a Complaint in the Court of

Cornmon Pleas, Hamilton County, Ohio against: Progressive Preferred Insurance Company

(uninsured motorist carrier); Jeff Whitley (driver of the motorcycle that Lora was riding on);

2

Deputy Larry Henderson (driver of the police vehicle that collided with the motorcycle); the

Board of County Commissioners of Hamilton County, Ohio; the Sheriff of Hamilton County,

Ohio; two Boards of Township Trustees; and various John Doe defendants.

Progressive Preferred Insuranee Company and the township trustees were voluntarily

dismissed from the lawsuit. No John Doe defendants were identified or served, so no John Doe

Defendants are part of this case. Lora's case proceeded against the tln-ee Hamilton County

Defendants and her husband, Jeff Whitley.

Earlier on June 25, 2007 Lora's husband, Jeff Whitley filed a Coniplaint in the Cot of

Common Pleas, Hamilton County, Ohio against the same Defendants (excluding himself). On

September 18, 2007 Jeff and Lora's cases were consolidated by the trial court under Case No.

A0705619. All documents filed in either case on or after September 18, 2007 were journalized

under Case No. A0705619.

On Deceinber 5, 2008, the three Hamilton Coity Defendants filed a motion for

summary judgment. On March 27, 2009, the trial court granted summary judgment in favor of all

three Hamilton County Defendants (Deputy Henderson, the Commissioners, and the Sheriff) and

against Lora and Jeff on the basis of itntnunity, with a determination that there is no just reason

for delay. On April 24, 2009 Lora filed her Notice of Appeal.

On December 31, 2009 the Appellate Court issued its first Decision in this case. In its

Decision, the Court of Appeals obliterated one of the key facts that supported the Whitley's,

nainely, that the deputy entered the intersection against a red light without activating his lights.

There were two non-party witnesses. One stated that she thought the deputy had his lights on; the

other testified ten separate times in his deposition that the deputy did not have his lights on. For

purposes of summary judgment, the court was required to believe that the deputy did not have

3

his lights on. This fact made the deputy's conduct even more egregious. But instead of accurately

stating that the deputy had not activated his lights, the court stated that this witness "could not

remember" whether or not the deputy had his lights on, a statement which was completely

untrue.

Accordingly, Appellant Lora Whitley filed an Application for Reconsideration on

January 11, 2010, requesting that the court change its Decision, or at the least, corrects its

decision to truthfidly reflect the facts. On February 5, 2010 the appellate court granted the

Application for Reconsideration, vacated its Judgment Entry and Decision, and entered a new

Decision.

But even in this new Decision, the appellate court still misstated the facts upon which its

Decision was based. This time, the court said that the crucial witness testified two ways, once

that the deputy's lights were not tunied on until after the crash, and also that he could not

remember whether or not the lights were on before the crash. This statement was also untrue. So,

Appellant Lora Whitley filed a second Application for Reconsideration, demonstrating again that

the court's statement in its second Decision was also blatantly false. This tiine, the Court issued

a document titled Entry Transmitting Errata, in which it finally stated the truth, namely, that the

witness testified that the deputy's liglits "were not on until after the crash."

B. Statement of the Facts

1. Basic Back rg ound Facts

On June 26, 2005, Jeffrey Whitley was operating a Harley-Davidson Motorcycle with his

wife, Plaintiff-Appellant Lora Whitley, seated behind him as a passenger. Jeff was driving

eastbound on Fields-Ertel Road approaching the inteisection with Mason-Montgomery Road, in

4

Hamilton County. It was near noon. Prior to his approach to the Mason-Montgomery Road

intersection, JefPs motorcycle was stopped at a traffic light.

At the same time, I-iamilton Coutity Patrol Deputy Larry Henderson was on Governors

Way heading west towards Mason-Montgomery Road when he received a dispatch over his radio

regarding a possible robbery in Coluinbia'I'ownship. Deputy Henderson turned right and headed

northbound onto Mason-Montgomery Road. He drove a brief distance towards Ficlds-Ertel

Road, but the lanes northbound to turn westbound onto Fields-Ertel Road and the northbound

Mason-Montgomery Road lanes were full. Henderson approached the intersection at about 30

mph and drove left of center due to the blocked northbound turn and through lanes. When he

arrived at the intersection, Henderson was faced with a red traffic light, while JefPs light had

tumed green. Henderson proceeded through the red traffic liglit and turned left onto Fields-Ertel

Road when his patrol cruiser's left front fender was struck by JefPs motorcycle in the

intersection, with Lora seated behind him as a passenger. Both Jeff and Lora were thrown off

the niotorcycle, flipped over the police cruiser, and their bodies crashed to the pavement on the

other side of the police cruiser.

2. Essential Summary Judgment Facts

Under Civil Rule 56, the trial court was required to accept as absolutely true the

following facts:

1. The intersection was several lanes wide and had nuuierous tuni lanes;

2. Visibility in the intersection was obstructed because of the number of vehicles and

the heights of the vehicles;

5

3. The deputy drove his vehicle le$-of-center, outside the normal lanes of traffic, so

that his vehicle was not in a lane where other drivers would look for cars coming froin his

direction;

4. There were at least thirty cars either in the intersection or approaching the

intersection when the Deputy drove through;

5. The deputy was traveling at least 30 mph when he entered the intersection;

6. The deputy did not slow down before he entered the intersection;

7. The deputy did not slow down until he reached the center of the intersection;

8. The deputy did not activate his siren before entering the intersection;

9_ The deputy did not activate his lights before entering the intersection;

10. The deputy asked witnesses to leave the scene of the accident before they gave

their stateinents and before they gave their identification, even though he knew other

investigating officers were on their way to the scene. He did not give the witnesses blank

witness statements to write down what they saw. This gives rise to the inference, for purposes of

the motion for suminary judgnient, that the deputy was trying to liide dainaging facts against him

when he encouraged the witnesses to leave the scene without giving their identification or their

statements.

III. ARGUMENT IN SUPPORT OF PROPOSITION OF LAW

Proposition of Law No. 1: Where a police officer entered a high-traffic, multiple-laneiutersection against a red light, while traveling at 30 mph, failed to slow down beforeentering the intersection, drove left of center and outside the normal lanes of traffic, withobstructed visibility, and further, failed to activate his lights or his siren, it is a question offact for the jury as to whether his conduct was willful, wanton, or reckless.

6

Political Subdivision Immunity

Under R.C. 2744.02, political subdivisions are liable for injury caused by the negligent

operation of any motor vehicle by their employees when the employees are engaged within the

scope of their employment and authority. But there is no liability if the driver was operating a

motor vehiele while responding to an emergency call and the operation of the vehicle did not

constitute willful or wanton misconduct.

Under R.C. 2744.03, an employee of a political subdivision is inunune from liability

unless (among other grounds) the employee's acts or omissions were in a wanton or reckless

mamier.

Definitions of Wanton, Willful, and Reckless

The First District Court of Appeals in Brockman v. Bell i explained that the temis

wanton, willful, and recTdcss may be defined as points on a continuum between negligence,

which conveys the idea of inadvertence, and intentional misconduct.

Wanton misconduct is a degree greater than negligence. It is the failure to exercise any

care toward one to whom a duty of care is owed when the failure occurs under circumstances for

which the probability of harm is great and when the probability of harin is known to the

tortfeasor Z.

Willfiil misconduct is also something more thau negligence. It involves a more positive

mental state prompting the injurious act than does wanton misconduct. The phrase willficl

misconduct iinplies uitent. But the intention relates to the misconduct, not to the result, and,

therefore, an intent to injure need not be shown. Willfitil misconduct is an intentional deviation

from a clear duty or from a definite rule of conduct, a deliberate purpose not to discharge some

1 Brockman v. Bell (1992), 78 Ohio App.3d 508, 605 N.E.2d 4452 Brockman v. Bell, supra

7

duty necessary to safety, or purposely doing a wrongful act with knowledge or appreciation of

the likelihood of resulting injury 3.

An actor's conduct is in reckless disregard of the safety of otliers if he does an act or

intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to

know of facts which would lead a reasonable person to realize, not only that his conduct creates

an unreasonable risk of physical hann to another, but also that such risk of harm is substantially

greater than that which is necessary to make his conduct negligent 4.

While an act to be reckless must be intended by the actor, the actor does not intend to

cause the hann which results from it. Thus, reckless misconduct may be used interchangeably

with willful misconduct. Thus, for purposes of the immunity afforded under R.C. Chapter 2744,

"wanton or reckless" misconduct under R.C. 2744.03(A)(6) inay be viewed as the ftuictional

equivalent of "willful or wanton misconduct" under R.C. 2744.02(B)(1)(b) 5. 'T'lierefore, if

Deputy Henderson's conduct was wanton, reckless, or willful, there is liability.

The duties imposed by R.C. 4511.03 and R.C. 4511.041.

R.C. 4511.03 states as follows: "(A) The driver of any emergency vehicle or public

safety vehicle, when responding to an emergency call, upon approaching a red or stop signal or

any stop sign shall slow down as necessary for safety to traffic, but may proceed cautiously past

such red or stop sign or signal with due regard for the safety of all persons using the street or

highway. "

Deputy Henderson had two distinct duties under R.C. 4511.03 when he approached the

intersection with the red light facing him: (1) slow down as necessary for safety to traffic; and

' BrocTcrnan v. Bell, supra4 Brockman v. Bell, supra.5 Brockman v. Bell, supra

8

(2) proceed cautiously through the intersection while exercising due regard for the safety of

all persons using the road. (Emphasis added).

In addition to the duties iinposed by R.C. 4511.03, Deputy Henderson was under the

duties imposed by R.C. 4511.041, Lxceptions to traffic rules for emergency or public safety

vehicle responding to eniergency call. If Deputy Henderson chose to proceed through an

intersection against a red light, he was required to display "at least one flashing, rotating, or

oscillatinglight" and to give "an audible signal by siren, exhaust whistle, or bell."

Slowing down was mandatory under R.C. 4511.03. But Henderson did not slow down.

Regarding his own speed, Deputy Henderson stated that, "I was pretty quick getting up to the

intersection, " and that he was traveling at 30 mph. But even if he had slowed down, at the very

least it is a question for the jury as to whether he slowed down as necessarv, considering: the

number of lanes of traffic; the amount of traffic; the obstructed view; that he was driving left of

center and was not driving within a lane of traffic; and most important, that he did not activate

either his lights or his siren. It is also a question for the jury as to whether he also procceded

cautiously through the busy intersection when he did not even use his lights or siren.

Further, Henderson did not proceed cautiously through the intersection. He did not

exercise any regard for the safety of other persons in this busy intersection. He did not activate

his lights. And he did not use his siren.

R.C. 4511.03 and R.C. 4511.041 define the duty of care that is owed by a police officer

when he proceeds through an intersection against a red light. This is the care reguired by the law.

A violation of either of these statutes is a violation of the duty of care owed by a police officer.

Henderson violated every single standard of care imposed by R.C. 4511.03 and R.C.

4511.041. In other words, he failed to exercise any of the care required by the law toward other

9

motorists -- under circumstances for which the probability of hann was great, and when the

probability of harm was known to him as a trained police officer. This is the classic definition of

wanton misconduct.

Willful and Wanton Misconduct Is a Jury Question.

Because the line between willful and wanton misconduct and ordinary negligence can be

a fine one, the issue of whether conduct was willful or wanton should be submitted to the jury for

consideration in light of the surrounding circumstances when reasonable minds might differ as to

the import of the evidence 6 . For more than 25 years, the law in Ohio has been that "Wanton

misconduct is ajury question" 7 The Ohio Supreme Court reiterated this principle in 1994 when

it stated that "the issue of wanton misconduct is normally a jury question. "8

In the instant case, the attendant circumstances (voluine of traffic; number of lanes of

traffic; number of turn lanes; time of day; driving left of center; obstructed visibility) are

circumstances which make the probability of harm greater, and would have been known to any

trained police officer.

Deputy flenderson created the hazard that haimed Lora Whitley. R.C. 4511.03 specifies

the warning that Henderson was required to give to the public regarding this hazard, that is, his

lights and siren were the warning to the public. tle could have accomplished this with the flick of

a switch in his cruiser, which would not have delayed his einergency response in the least. But he

gave no warning wbatsoever, and ran the red light in a crowded intersection.

Interestingly enough, the Court of Appeals did not describe even one action that

Henderson took that showed that he took any precaution to avoid this collision. His conduct, and

6 Brockman v. Bell, supra7Matkovich v. Penn Cent. Transp. Co. (1982), 69 Ohio St.2d 210 23 0.O.3d 224, 431 N.E.2d

6528 Fabrey v. McDonald Village Police Dept., 70 Ohio St.3d 351, 1994-Oliio-368, 639 N.E.2d 31

10

his complete absence of any care whatsoever, satisfies all three definitions of wanton, willful,

and reckless misconduct.

Two First District Appellate Cases Support This Proposition of Law.

The First District Court of Appeals in Behm v. City Of Cincinnati y considered the

oflicer's failure to slow down, combined with other factors such as an obstructed view of the

intersection, to show that there was a substantially greater risk of harm at that particular

intersection, and therefore, it was a question of fact as to whether the officer's conduct was

wauton. The Court of Appeals noted that it was dark at the time of the accident; the driver's view

of the intersection was blocked either by a large building or by three lanes of waiting cars; and

the driver was following the first vehicle at such a distance that at least one witness thought that

the emergency was over before the ambulance came into view. The court concluded that there

was evidence that defendant was not only negligent, but wanton.

'I'he particular circumstances in the Behm case (darkness; obstructed view) changed what

might have been negligent conduct, in the officer's violation of R.C. 4511.03 at one intersection,

into wanton misconduct at the actual intersection where Mr. Behm was injured. Similarly,

conduct which might only be negligent at a lightly-traveled intersection at 10:00 p.m. on a

Sunday evening in January might be wanton misconduct at a heavily-traveled intersection at

noon on Sunday in late June. When circumstances exist under which the probability of harm is

great, then conduct that might otheiwise be only negligent becomes wanton. The consideration

of those circumstances is a jury question.

y Behm v. City Of 'Cincinnati (November 18, 1992; 1-Iamilton App. No. C-910865; unreported)

11

It is significant that the police officer in Behm, unlike Deputy Henderson, bad activated

both his lights and sirens. But the court of appeals still held that the issuc of wanton misconduct

was a question for the jury.

In Brockman v. Bell, supra, the First District Court of Appeals held that suimnary

judgment was improper where Bell, the driver of an emergency vehicle, operated his ambulance

at a rate of speed that prevented him from controlling it through the turn around a street corner,

failed to appreciate Brockman's presence in the right-rear blind-spot of the ambulance, and

executed the tutn too sharply. The Court of Appeals held that under the totality of the

circumstances, genuine issues of material fact remained as to "whether Bell's conduct constituted

wanton, willful, or reckless misconduct." It is noteworthy that Bell was driving with his lights

and his siren activated, and yet the court still held that his conduct posed a question of fact for

the juiy.

Other Appellate Cases Also Support This Proposition of Law.

The Court of Appeals in Fitzpatrick v. Spencer 10, reversed a trial court's grant of

summary judginent where a police officer proceeded through an intersection against a red light

because "Each case must be reviewed zznder the totality of the circumstances. " The court stated

that, while most courts emphasize the speed of the vehicle, its acceleration/deceleration, the

condition of the intersection, and the use of emergency lights(siren as significant facts, case law

demonstrates a strong preference.for juries to determine whether the facts of a particular case

satisfy R.C. 4511.03.

10 Fitzpatrick v. Spencer, 2004-Ohio-1940

12

In Peoples v. Willoughby ", the court found that there was sufficient evidence to support

a finding of willful and wanton 7nisconduct when a police officer proceeded tlirough an

intersection against a red light, without sounding his siren, at 40 mph - only ten inph faster than

Deputy Henderson in the Whitley case. Just as in the Whitley case, an obstructed view of the

intersection was one of the factors cited by the court. In addressing the issue of wanton

misconduct, the court noted that "under the circurnstances, there was a great probability that

harm would result. " In other words, conduct which might otherwise be merely negligent can be

wanton misconduct when there is a substantially greater risk of harm, such as driving left-of-

center through a busy intersection, against a red liglit, with no lights or siren. The appellate court

concluded that, "Wliether a person's actions are willful or wanton misconduct is a question of

f'act and, therefore, is a jury issue. "

In Neely V. Mifflin Township 12 the police officer approached an intersection against a red

light at a high rate of speed and moved left of a mmnber of other cars in the westbound lane in

order to proceed through the intersection. In reversing the trial court's granting of sununary

judgment, the appellate couit explained that the presence of other cars in the westbound lane

suggested a level of traffic necessitating "due regard" in a degree not necessarily required at less

traveled intersections. Moreover, the risk to the motoring public increases dramatically as the

speed of a public safety vehicle increases. The court concluded that the case presented the factual

issue for the jury of whether the officer acted recklessly. This was so even though the officer

had used his lights and his siren. Deputy Henderson used neither.

ii Peoples v. Willoughby (1990), 70 Ohio App.3d 848, 592 N.E.2d 90112 Neely V. Mifflin Township, September 30, 1996, Franklin App. No. 96APE03-283, unreported

13

Lora Whitley's Case Is Different from Herwe/a v. Bailey

The Whitley case is different in nuinerous respects froui Henvek v. Bailey 13, the case

cited by the Court of Appeals in support of its Decision. Officer Bailey had his siren on;

Henderson did not. Bailey slowed down before entering the intersection; Henderson did not slow

down. Bailey actually stopped his vehicle before entering the intersection; Henderson did not.

Immediately before his collision with Bailey, Herweh had observed another police car with both

lights and sirens activated, a clear warning that another emergency vehicle might be in the

vicinity; there was no prior warning at all for the Whitley's.

IV. CONCLUSION

For the reasons discussed above, this case involves a matter of public and great general

interest. It involves the issue of how much protection the law provides to its citizens fi-om the

actions of a police officer responding to an emergency. The balance between the needs of the

police officer while responding to an emergency and the needs of the public for safety on the

streets must be restored. The Appellairt requests that this court accept jurisdiction in this case so

that this iinportant issue will be reviewed on the inerits.

Tl{omas J. Ruwe (0020505)Attoniey for AppellantLora N. Whitley5710 Wooster Road, Suite 211Cinciiuiati, Ohio 45227Phone: 513-271-0808Fax: 513-322-4453tjiuwe(a,fuse.net

13 Herweh v. Bailey (Oct. 23, 1996, Hainilton App. No. C-960177, unreported

14

CERTIFICATE OF SERVICE

1 hereby certify that a copy of the foregoing document (Memorandum in Support of

Jurisdiction of Appellant Lora N. Whitley) was sent by ordinary U.S. mail to Mark C. Vollman,

Esq. and Thomas E. Deye, Esq., attorneys for Appellees Board of County Cominissioners of

Hamilton County, Ohio, Larry Henderson, and Sheriff of Hamilton County, Ohio at Hamilton

County Prosecutor's Office, 230 East Nintli Street, Suite 4000, C,incinnati, Ohio 45202; and to

Emily T. Supinger, Esq. and Daniel J. McCarthy, Esq., attorneys for Defendant Jeffrey S.

Whitley (Consolidated Case No. C090240) at 225 W. Court Street, Cincinnati, Ohio 45202 on

the 22nd day of March, 2010.

Thomas J. Ruwe, #0020505Attorney for AppellantLoraN. Whitley5710 Wooster Pike, Suite 211Cincinnati, Ohio 45227Telephone: 513-271-0808Fax: 513-322-4453tiiuwe(a7,fuse.net

15

IN THE COURT OF APPEALSFIRST APPELLATE DISTRICT OF OHIO

HAMILTON COUNTY, OHIO

LORA N. WHITLEY,

Plaintiff-Appellant,

vs.

PROGRESSIVE PREFERREDINSURANCE COMPANY,

BOARD OF COUNTYCOMMISSIONERS,HAMILTON COUNTY, OHIO

LARRY HENDERSON,

SHERIFF OF HAMILTONCOUNTY, OHIO,

and

JEFFREY S. WHITLEY,

Defendant-Appellees.

APPEAL NO. C-o9o284(Consolidated with C-o9o240)TRIAL NO. A-07o5621(Consolidated with A-07o5619)

JUDGMENT ENTRYGRANTINGRECONSIDERATION,VACATING THE JUDGMENTENTRYAND DECISION OFDECEMBER 31, 2009, ANDENTERING DECISION.

iD86921933

ENTEREDFEB - 5 t010

'I"his cause came on to be considered upon the motion of the appellant Lora

Whitley for reconsideration.

The Court, upon consideration thereot finds that the motion is well taken and is

granted. Wherefore, it is the Order of this Court that the Judgment Entry and Decision

entered on December 31, 2oo9 are set aside and held for naught.

The Court further Orders that the judgment of the trial court is affirmed. Our

Decision is modified and a new Decision entered, as of the date of this entry.

Further, the Court holds that there were reasonable grounds for this appeal, aRows

no penalty and Orders that costs are taxed in compliance with App. R. 24.

^

OHIO FIRST DISTRICT COURT OF APPEALS

'1"he Court further Orders that i) a copy of this Judgment with a copy of the

Decision attached constitutes the mandate, and 2) the mandate be sent to the trial court

for execution pursuant to App. R. 27.

To The Clerk:

Enter upon

2

tY

IN THE COURT OF APPEALSFIRST APPELLATE DISTRICT OF OHIO

HAMILTON COUNTY, OHIO

JEFFREY S. WHITLEY, APPEAL NO. C-o9o240TRIAL NO. A-07o5619

Plaintiff-Appellant,DECISION.

vs.

PROGRESSIVE PREFERREDINSURANCE COMPANY,

Defendant,

and

HAMILTON COUNTY, OHIO,

BOARD OF COUNTYCOMMISSIONERS OF HAMILTONCOUNTY, OHIO,

PRESENTED TO THE CLERKOF COURTS FOR FILING

FEB -5 2010

COURT OF APPEALS

LARRY HENDERSON,

and

SHERIFF OF HAMILTON COUNTY,OHIO,

Defendants-Appellees,

and

BOARD OF TOWNSHIP TRUSTEESOF SYMMES TOWNSHIP, OHIO, et.al.,

Defendants.

LORA N. WHITLEY APPEAL NO. C-o9o284TRIAL NO. A-o7og621

Plaintiff-Appellant,DECISION.

ENTEREDFBB - 5 Z010

01110 FIRST DISTRICT COURT OF APPEAIS

vS.

PROGRESSIVE PREFERREDINSURANCE COMPANY,

Defendant,

and

BOARD OF COMMISSIONERS OFHAMILTON COUNTY, OHIO,

I.ARRY HENDERSON,

and

SIIERIFF OF HAMILTON COUNTY,

Defendants-Appellees,

and

JEFFREY S. WHITLEY, et. a1.,

Defendants

Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: February 5, 2010

Manley Burke, Emily T. Supinger, and Daniel J. McCarthy, for Plaintiff-AppellantJeffrey S. Whitley,

Thomas J. Ruwe, for Plaintiff-Appellant Lora N. Whitley,

Joseph T. Deters, Hamilton County Prosecuting Attorney, Tholnas E. Deye andPdark C. Vo!!man, Assistant Prosecuting Attorneys, for Defendants-AppelleesHamilton County, Ohio, Board of Commissioners of Hamilton County, Ohio, LarryHenderson, and Sheriff of Hamilton County.

Please note: This case has been removed from the accelerated calendar.

2

Offio FIRST DISTRICT COURT OF APPEALs

DINKELACKER, Judge.

{11} Plaintiffs-appellants, Jeffrey S. Whitley and Lora N. Whitley, appeal a

decision of the Hamilton County Court of Common Pleas granting summary

judgment in favor of defendants-appellees, Hamilton County, Ohio, Board of

Commissioners of Hamilton County, Ohio, Deputy Larry IIenderson, and Simon L.

Leis, Jr., Hamilton County Sheriff (collectively "Hamilton County'). We find no

merit in their assignments of error, and we affirm the trial court's judgment.

- ►. Facts and Procedure

{¶Z} The Whitleys were seriously injured when the motorcycle that they

were riding collided with I-Ienderson's police cruiser at the intersection of Mason-

Montgomery and Fields-Ertel Roads. Immediately before the crash,, Jeffrey had

been operating the motorcycle, with his wife, Lora, seated behind him as a passenger.

After stopping at a traffic light, they proceeded east on Fields-Ertel Road. As they

approached the intersection with Mason-Montgomery Road, the light turned green.

{¶3} Henderson, a Hamilton County deputy sheriff, was heading north on

Mason-Montgomery Road while responding to an emergency dispatch. He intended

to turn left onto Fields-Ertel Road. As he approached the intersection, the turn lanes

were full.

{14} Henderson then entered the intersection against the red light, but he

could not see all the lanes of oncoming traffic. He estimated that he was travelling

from 20 tc 30 m.p.h. E"Jitnesses testified that he did r,ot have his siren on when he

entered the intersection. While he was in the intersection, the Whitleys' motorcycle

collided with his cruiser's left front fender, sending the Whitleys flying.

ENTEREDFEB - 5 CU9©

OHIO FIRST DISTRICT COUR'I' OF APYEALS

{¶5} Jeffrey and Lora filed suit separately against Hamilton County and

numerous other defendants. The trial court later consolidated the two cases.

Hamilton County filed a motion for summary judgment in which it claimed that it

was immune from liability under the doctrine of sovereign immunity. The trial court

agreed, holding that Henderson's acts had not risen to the level of willful or wanton

misconduct, and it granted Hamilton County's motion for summary judgment.

{¶6} The Whitleys each present a single assignment of error for review.

'1'hey contend that the trial court erred in granting summary judgment in favor of

Hamilton County. They argue that they presented sufficient evidence to show that

genuine issues of fact existed for trial as to iNhether Henderson's conduct rose to the

level of willful and wanton misconduct. This assignment of error is not well taken.

!l. Standard of Review for Summary Judgment

{1[7} We review a trial court's decision to grant summary judgment de

novo.r Summaryjudgment is appropriate if (i) no genuine issue of material fact

exists for trial, (2) the moving party is entitled to judgment as a matter of law, and

(3) reasonable minds can come to but one conclusion and that conclusion is adverse

to the nonmoving party, who is entitled to have the evidence construed most strongly

in his or her favor.a

{T8} The trial court has an absolute duty to consider all pleadings and

appropriate evidentiary materials when ruling on a motion for summary judgment.

I

^^&^

FEB - 5 ZU1Q

I Grafton v. Ohio Edison Co., 77 Ohio St.3d io2, io5, 1996-Ohio-336, 671 N.E.2d 24i;'i ed1 Tsono. Hartings, ist Dist. No. C-o8116o, 2oo9-Ohio-4987, ¶6.2 Tenipte u. Wean C7nited, Inc. (1977), 5o Ohio St.2d 317, 327, 364 N.E.2d 267; Greene u.Wiciteside, i8i OhioApp.3d 253, 2oo9-Ohio-741, 9o8 N.E.2d g75, ¶23•

4^^

OHIO FIRHT DISTRICT COURT OF APPEAIS

It should not grant summary judgment unless the entire record shows that summary

judgment is appropriate 3

{¶9}. Although a trial court may not weigh the evidence in the context of a

motion for summary judgment, it must evaluate that evidence to deternune whether

it is sufficient to support the nonmovant's position that a jury could reasonably find

in the nonmovant's favor. Assessing the sufficiency of the evidence involves a

qualitative, as well as a quantitative, analysis. Therefore, in addition to considering

the amount of evidence presented on an issue, the court must consider whether the

evidence makes a party's claim plausible.4

Iit. Sovereign lmmunity

{¶10} "[P]olitical subdivisions are liable for injury, death, or loss to person

or property caused by the negligent operation of any vehicle by their employees when

the employees are engaged within the scope of their employment and authority."s

But a complete defense to a political subdivision's liability exists if "a member of a

municipal corporation police department or any other police agency was operating a

motor vehicle while responding to an emergency call and the operation of the vehicle

did not constitute willful or wanton misconduct."6

Similarly, employees of a political subdivision enjoy a presumption of

immunity in connection with their performance of governmental or proprietary

functions.7 An employee is immune from liability unless "the employee's acis or

omissions were with malicious purpose, in bad faith, or in a wanton or reckless

3 Greene, supra, at ¶23; Westfield Ins. Co. v. Towne Investment II, Inc., tlth Dist. No. 2oo6-L-026, 2oo6-Ohio-5830, 9i9-2o.4 Markey v. Barrett (Mar. 8, i996), 2nd Dist. No. 15243; Paul v. Uniroyal Plastics Co. (1988), 62Ohio ApP.3d 2^7 282, 575 N.E.2d 484.5 R.C. 2744.a2(B)(i)• ^ 1V t^^^^6 R.C. 2744.o2(B)(i)(a).7 R.C. 2744.03(A); Alagha v. Cameron, ist Dist. No. C-o81208, 2009-Ohio-4886, 9ig.

FEB - 5 COlO

5

OHIO FIRST DISTRICf COURT OF APPEALS

manner[.]"$ Such conduct is the "functional equivalent" of the willful and wanton

misconduct that would subject a political subdivision to liability.9

{1112} Willful and wanton misconduct is something more than negligence.'a

Wanton misconduct is the failure to exercise any care whatsoever towards those to

whom a duty is owed if the failure to exercise care occurs when a great probability of

harm exists." Willful misconduct involves "an intent, purpose or design not to

perform the duty of care that is owed."la

{¶13} Generally, the determination whether an employee of a political

subdivision acted willfully and wantonly is a question of fact for the jury. But where

the record does not contain evidence of willful or wanton misconduct, a trial court

may grant summary judgment in favor of the employee and the political

subdivision 13

IV. Alleged Statutory Violations

{114} The Whitleys argue that Henderson's conduct violated R.C. 4511.03,

which reqtiires the driver of a "public safety vehicle, when responding to an

emergency call, upoti approaching a red or stop signal or any stop sign" to "slow

down as necessary for safety to traffic." But the driver "may proceed cautiously past

such red or stop sign or signal with due regard for the safety of all persons using the

street or highway."

{¶15} They also argue that Henderson violated R.C. 4511.041. It provides

that a number of traffic laws do not apply to the driver of a public safety vehicle

s R.C. 2744•03(A)(6)(b).9 Ilerwele v. Bailey (Oet. 23, 1996), ist Dist. No. 960177; Broekman v. Bell (1992), 78 OhioApp.d 5o8, 5i6, 6o5 N.E.2d 445•t" Behm v. Cincinnati (Nov. 18, 1992), ist Dist. No. C-91o865; Brockman, supra, at 5.^^^^^ ^^^^» Alugha, supra, at ¶21; Herweh, supra.12 Td.13 Alagha, supra, at ¶22; Brockman, supra, at 517. FEB - 5 zuio

.6

OHIO FIRST I?ISTItICT COURT oFAPPEAI.S

responding to an emergency call if the vehicle "is equipped with and displaying at

least one flashing, rotating, or oscillating light visible under normal atmospheric

conditions from a distance of five hundred feet to the front of the vehicle and if the

driver of the vehicle is giving an audible signal by siren, exhaust whistle, or bell." It

goes on to state that "[t]his section does not relieve the driver" of the public safety

vehicle "from the duty to drive with due regard for the safety of all persons and

property upon the highway."

{¶16) The facts in this case are very similar to those in Herweh v. Bailey. In

that case, we held that the failure of a driver of a public safety vehicle responding to

an emergency call to comply with the requirements of R.C. 4511.041 was not per se

willful and wanton misconduct. "A driver of an emergency vehicle does not

automatically lose immunity under R.C. Chapter 2744 by failing to activate the

vehicle's lights or siren on an emergency run:'14 Instead, the officer's failure to use a

signal or lights was one factor for the court to consider in determining whether the

officer's conduct was wanton or willful.15

V. Application of the Law to the Facts of this Case

(1117} In Herweh, cve went on to state, "[W}ith the evidence construed most

strongly in favor of Herweh, Bailey responded to an emergency call without

activating his siren, proceeded through a red traffic light and struck IIerweh's

vehicle. Bailey, did, however, have his lights activated and in Herweh's estimation

was only traveling at 'a speed greater than 25 m.p.h.' Bailey's failure to use his siren

would be considered with all the other evidence in determining whether he acted in a

wanton or willful manner. * * *

flerweh, supra, citing Neuman v. Columbus (Aug. 31, i995), ioth Dist. No. 959PF -i861,L•intl E lt E DI.ipscomb u. Lewis (i993), 85 Ohio App.3d 97,619 N.E.2d io2.1s Id., citing Neuman, supra. FEB ' SZUla

7

OHIO FIRST DISTR[CT COURT OF APPFAI3

{11S} "Considering the totality of the circumstances, we find that a genuine

issue of fact does not exist, and that Bailcy did not act wantonly or willfully as a

matter of law, Although Bailey crossed the double yellow lines when executing a left

turn and allegedly had not activated his siren, reasonable minds could not find that

Bailey was guilty of wiAful and wanton misconduct."16

(¶19} We reach the same result in this case. We agree with the trial court

that even with the facts construed in the Whitleys' favor, Henderson's conduct, which

may have been negligent, did not rise to the level of willful and wanton misconduct

as a matter of law. The record does not demonstrate that he failed to exercise any

care whatsoever to those to whom he owed a duty of care or that he had an intent,

design, or purpose not to perform the duty of care owed.

{1f24J The parties do not dispute that Henderson was responding to an

emergency call as defined in R.C. 2744.oi(A), and that the call was directed

specifically to him. lie was not just answering a general call for assistance.17 He did

not activate his siren, and the record is unclear as to whether he activated his lights.

Henderson and Linda Warren, an eyewitness, testified that his lights were on when

he entered the intersection. Neither of the Whitleys remembered seeing any lights,

and Virgil Terry, another eyewitness, testified both that I-fenderson's lights were not

on until after the crash and that he could not remember: Nevertheless, we do not

find Henderson's failure to activate his lights to be dispositive.

{121} The parties do not allege that Henderson was speeding. The evidence

showed that he was going from 20 to 30 m.p.h., which was less than the Whitleys'

estimation of the speed at which they were travelling. Even Warner, the witness

,6 Id.17 See Quappe v. Ohio Dept. ofYubitc Safety (Ct.Cl.1997), 83 Ohio Misc.2d 74. 77-78, 679755.

8

gNTEREDE.KB - 5 [UtU

OI3I0 FIRST DISTRICT COURT Oli APPEALS

whose testimony was the most supportive of the Whitleys' position, stated that while

she did not feel that Henderson entered the intersection "with caution," he did not

"fly out, like come flying through there." She stated that when he was in the

intersection, he seemed to realize a collision was going to occur and tried to avoid it.

She described his conduct as "human error."

{1122} "Human error" might mean negligence, but it does not constitute

wiIlful or wanton misconduct. Since the evidence did not show that Henderson's

conduct was willful and wanton, both Hamilton County and Henderson individually

were immune from liability. The trial court did not err in granting liamilton

County's motion for summary judgment. We overrule the Whitleys' assignments of

error, and we affirm the trial court's judgment.

Judgment af5rmed.

HENDON, P.J., and SUNDERMANN, J., concur.

Please Note:

The court has recorded its own entry this date.

ENTERED I^ zmoFEB-5zu10

9 B

IN THE COURT OF APPRA i.S

FIRST APPELLATE DISTRICT OF OHIO

HAMILTON COUNTY, OHIO

LORA N. WHITLEY,

Appellant,

vs.

PROGRESSIVE PREFERREDINSURANCE COMPANY,

BOARD OF COUN1'YCOMMISSIONERS,HAMILTON COUNTY, OHIO,

LARRY HENDERSON,

SHERIFF OF HAMILTONCOUN'I`Y, OHIO,

and

JEFFREY S. WHITLEY,

Appellees.

APPEAL NO. C-o9o2$4(Consolidated with C-09o240)TRIAL NO. A-o705621(Consolidated with A-07o5619)

ENTRY TRANSMITTING ERRATA

ENT'^EDMAR - 4 zoto

It appearing to the Court that on page 8, 1(20, of the Decision filed

on February 5, 2oio, the Court through inadvertence misstated the fourthsentence as foll.ows:

"Neither of the Whitleys remembered seeing any lights, and Virgil Terry,another eyewitness, testified both that Henderson's lights were not onuntil after the crash and that he could not remember." (erroneous text isitalicized).

^R I^N96119`

It is the order of this Court that the text of the fourth sentence is corrected

to read as follows:

"Neither of the Whitleys remembered seeing any lights, and Virgil Terry,another eyewitness, testified that Henderson's lights were not on until

after the crash. "

To The Clerk:

Enter upon the Journal of the Court onMgf 4 20$er order of the Court.

gy:,^I (Copies sent to all counsel)

Presiding Judge

ENTEREDMAR - 4 2018

i

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