A woman who spent a month in the hospital after being struck by a police cruiser while crossing the street in her wheelchair cannot hold the officer or the city liable for the accident, the Second District Court of Appeals ruled on December 12.

In affirming a ruling by a Montgomery County Court of Common Pleas, the appeals court noted that immunity from civil lawsuits applies to a police officer responding to a call to duty even if it is not in response to an emergency as long as the officer was not reckless when driving.

In April 2011, Donna Seege was crossing James H. McGee Boulevard in Dayton in an unmarked crosswalk. Dayton Police Officer Christopher Smith regularly patrolled the area and was aware of crosswalk. He received a dispatch to respond to a traffic accident farther north on McGee Boulevard.

Seege testified that she looked both ways and saw the road was clear when she began to travel across it. Smith said he habitually looked at the storefronts and lots along McGee for any type of drug activity, fights, robberies or disturbances. Smith did not have his emergency lights on, and the black box in his Ford Crown Victoria indicated he was traveling about five miles per hour over the street’s 40mph speed limit. He saw the wheelchair and slammed on his brakes. The black box indicated he was traveling 41.5 mph when he braked. His airbag deployed as he struck the wheelchair and Seege was thrown into the street.

In September 2012, Seege filed suit against Smith and the city of Dayton, alleging Smith had “negligently, willfully, wantonly and recklessly failed to yield the right of way” to her. The city countered that statutory immunity applied because Smith was on a call to duty and his conduct was neither willful nor wanton. In addition Smith responded that he was entitled to individual immunity under R.C. 2744.03(A) because there was no evidence he was acting recklessly when the accident occurred. The trial court granted summary judgment to Smith and the city.

Seege appealed arguing immunity applies only when officers are responding to an emergency call and Smith was admittedly not. Further, she asserted that Smith was acting in a wanton manner by taking his eyes off the road while patrolling and not taking any measures to avoid pedestrians when he knew he was near an unmarked crosswalk.

Writing for the court, Judge Jeffrey M. Welbaum indicated the immunity statute for political subdivisions, R.C. 2744.02(B)(1), applies when a police officer is on an emergency call. For the purpose of determining immunity, emergency call is defined in R.C. 2744.01(A). Judge Welbaum cited the Supreme Court of Ohio’s Colbert v. Cleveland (2003) ruling that said an emergency call does not necessarily have to be an emergency but only requires a call to duty.

“The trial court properly concluded that Smith was responding to a call to duty because he had been dispatched to respond to a traffic accident,” Judge Welbaum concluded.

As to whether Smith was wanton in his response to the dispatch call, Judge Welbaum noted that “wanton misconduct involves failure to exercise any care “ under the circumstances where the probability of harm is great to the person at risk of being harmed. The court said Smith was traveling only a few miles over the speed limit that his visibility was not limited when he hit the wheelchair. Because his conduct was not wanton, Dayton could not be held liable for the accident.

For Smith to be liable, his action had to be reckless. The court indicated to be considered reckless Smith’s conduct had to create a substantial and unjustifiable risk of harm to others and consciously disregard or be indifferent to the risk created.  Judge Welbaum said while there are some residences in that section of McGee Boulevard, it is mostly commercial establishments and it is a busy street. “One might characterize Smith’s actions as negligent, but they do not rise to the level of recklessness,” he stated.

Judge Michael T. Hall concurred in the decision.

Judge Jeffrey E. Froelich concurred separately stating he agreed that the officer’s action fell into the category of “emergency call” as defined by the Supreme Court. He noted Segee’s contention of the contradiction of a non-emergency response being part of the definition of “emergency call,” but commented that issue would have to be resolved by the Supreme Court.

Seege v. Smith, 2014-Ohio-5450
Opinion: http://sc.ohio.gov/rod/docs/pdf/2/2014/2014-ohio-5450.pdf
Civil Appeal From: Montgomery County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: December 12, 2014

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