The Ohio Supreme Court rejected the position that a police officer’s conduct must be “extreme and outrageous” to be held civilly liable for damages caused during high-speed pursuits, but still granted immunity to officers who participated in a 2011 Montgomery County chase that severely injured a bystander.

A Supreme Court majority found officers chasing fleeing criminal suspects receive the level of immunity in state law that is afforded all government employees. In her majority opinion, Justice Judith L. French wrote that lower Ohio courts had adopted a higher standard for officers and declared they could not be the “proximate cause” of injuries to bystanders during pursuits unless their conduct was deemed extreme and outrageous.

In a concurring opinion in judgment only, Justice Sharon L. Kennedy agreed with the majority that that the Montgomery County deputy sheriffs and Miami Township police officers who pursued burglary suspect Andrew Barnhart were not liable for the severe injuries suffered by Pamela Argabrite, who was injured when Barnhart’s car hit her vehicle.

Justice Kennedy wrote separately because she would have affirmed the reasoning and decision of the Second District Court of Appeals that the issue of whether sovereign immunity applies is separate and independent from the issue of proximate cause. She warned that the Court’s decision to eliminate the “no -proximate-cause” rule will have a chilling effect, making law enforcement officers “think twice before engaging in a pursuit and will embolden criminals.”

In separate opinionsconcurring in part and dissenting in part, Justices Paul E. Pfeifer and William M. O’Neill objected to this Court deciding the officers were not liable and would allow Argabrite to present evidence in a trial court using the correct legal standard.

Argabrite Sues Five Officers
Argabrite filed a lawsuit in Montgomery County Common Pleas Court against township officers Jim Neer, Gregory Stites, and John DiPietro, and deputy sheriffs Tony Ball and Daniel Adkins, alleging that in the course of their duty they engaged in a high-speed pursuit of Barnhart, who crashed head-on into Argabrite’s vehicle.

Early in the day of the accident, Deputy Chief DiPietro heard a radio report of a burglary and that a fellow township sergeant was looking for Barnhart’s vehicle. He knew one of the department’s officers was pursuing Barnhart. Department policy limits pursuits to instances where police believe the suspect committed or is about to commit a violent felony, and burglary is included in that category. DiPietro took control of the pursuit and intended to direct officers to get in front of Barnhart and deploy “Stop Sticks” to catch him. DiPietro was in charge of the pursuit for about three minutes before the crash and did not see any of the pursuit. No information relayed to him by the officers led him to believe he needed to terminate the pursuit.

Officers Neer and Stites initiated and continued the pursuit. Stites recognized the suspected vehicle because of a previous incident he had investigated. When he went on foot to confront Barnhart, Barnhart backed his car into another officer’s cruiser and sped off, leading Neer and Stites to pursue him by car. Neer and Stites used their lights and sirens throughout the chase, calling out the street names and directions on the radio as they passed, and claimed they kept a safe distance from Barnhart.

Sheriff Sergeant Adkins heard the radio call of the burglary and the attempt to capture Barnhart. He drove in the direction of the altercation, anticipating a need to clear the intersections. He did not see Barnhart’s vehicle, nor did he participate in the pursuit.

Deputy Bell heard the radio call and observed Barnhart passing him. He saw the township officers in the distance and proceeded to follow Barnhart. He stated he never intended to take the lead in the chase, but only tried to keep the vehicle in sight until the township police caught up. When they did, he slowed down and allowed them to pass. He was at an intersection when he heard about the vehicle crash.

Trial Court Dismissed Case
Employees of political subdivisions are generally immune from civil liability for actions in connection with the functions of their employer, but R.C. 2744.03(A)(6)(b) lifts the shield if an employee acts “with malicious purpose, in bad faith, or in a wanton and reckless manner.” Argabrite argued the officers’ actions were “willful, wanton, reckless, or malicious.”

The trial court granted the officers’ request for summary judgment in this case on the grounds that their actions were not the proximate cause of the accident because their conduct was not extreme and outrageous. Among the points a plaintiff such as Argabrite must prove to succeed in a negligence lawsuit is that the officers were the proximate cause of her injuries.

The court cited the Second District Court of Appeals’ 2006 Whitfield v. Dayton decision, which adopted the “no proximate cause” position of other state appeals courts, which have found that the an officer who pursues a fleeing suspect is not the proximate cause of injuries to a third party unless the officer’s actions were extreme and outrageous.

Argabrite appealed to the Second District, which affirmed the trial court ruling, also citing Whitfield. She in turn appealed to the Supreme Court, which agreed to hear her case.

Court Focuses on Officer Conduct
Justice French wrote Argabrite’s claim focuses on the statute’s lifting of immunity for “wanton and reckless conduct.” She explained that “wanton misconduct” has been defined by the Court as the failure to exercise any care toward those who under the circumstances face a great probability that harm will result. And the Court has defined “reckless conduct” as acting with conscious disregard of or indifference to a known or obvious risk of harm to another.

“These are rigorous standards that will in most circumstances be difficult to establish, especially with respect to a law-enforcement officer carrying out the statutory duty to arrest and detain a person violating the law,” she wrote.

Justice French wrote the trial and appeals court never analyzed Argabrite’s claim under the immunity statute and did not test whether the officer’s actions were wanton or reckless. They applied the “extreme and outrageous” standard, which she explained is a higher standard of culpability than wanton or reckless.

Justice French noted that the Whitfield ruling defined extreme or outrageous conduct as “atrocious, and utterly intolerable in a civilized community” and that if recited to the average member of the community would arouse resentment and lead the community member to exclaim “Outrageous!”

“Thus, the no-proximate-cause rule effectively and improperly extends immunity to a police officer who acts wantonly or recklessly, but not in an extreme or outrageous manner, even though the officer is not entitled to immunity under R.C. 2744.03(A)(6)(b). Ohio courts lack the authority to confer immunity based on a different standard than the General Assembly has implemented,” she wrote.

Justice French indicated the General Assembly could expand the limits of immunity for police officers pursuing fleeing suspects, but the courts may not.

Immunity Granted
Justice French wrote that typically once the Court rules the trial court applied the wrong legal standard, the case is remanded to the trial court to apply the proper standard. However, the Court has a right to consider the evidence as if it were the trial court.

She noted while the immunity standard applies to all government employees, the Court recognized no other public employees face the “potential danger, violence, or unique statutory responsibilities” that law enforcement officers do. She explained that Ohio law requires officers to arrest and detain criminal suspects, and officers can face criminal charges themselves for dereliction of duty for failing to make arrests.

Claiming the officers engaged in high-speed chases, even if carried out in violation of department policies, is not enough to find the officers acted in a wanton or reckless manner, Justice French noted. She indicated in this case, none of the officers acted “with malicious purpose, in bad faith or in a wanton or reckless manner,” and held that they all are entitled to immunity. The Court affirmed the trial court’s grant of summary judgment to the officers, though for different reasons.

Chief Justice Maureen O’Connor and Justices Terrence O’Donnell and Judith Ann Lanzinger joined Justice French’s opinion.

Justice Lanzinger also authored a concurring opinion, in which she wrote the Court need not focus on whether the officer’s conduct was wanton, reckless, extreme, or outrageous, but rather that the law only requires their actions be more than negligent.

“The officers involved here were, as the majority explains, at most negligent. They are protected by governmental immunity,” she concluded.

Concurrence Finds the No-Proximate-Cause Rule Does Not Conflict With the law of Sovereign Immunity

While Justice Kennedy agreed that the officers are not liable for the injuries to Argabrite, she maintained that the no-proximate-cause rule should remain viable and is not in conflict with the immunity rule. Consequently, she concurred in judgment only.

She explained that immunity is an affirmative defense a government body or employee can assert if sued for a negligent act. In contrast, the no-proximate-cause rule is an element of a tort action that provides that law enforcement officers are not the legal cause of an accident between a fleeing suspect and an innocent third party, unless the pursuit was extreme or outrageous. She noted that one-half of Ohio’s appellate districts have adopted and applied the no-proximate-cause rule in lawsuits against law enforcement.

She reasoned that because the Ohio General Assembly has amended the immunity statute numerous times since Ohio courts began applying the no-proximate-cause rule and have not taken any action to overturn it then the rule should remain viable. Therefore, she states: “[b]ecause the General Assembly has not taken any such action, we can only presume then that the General Assembly does not believe that the no-proximate-cause rule encroaches upon their political-subdivision immunity statute. The General Assembly’s inaction suggests that the majority’s decision rejecting the rule as encroaching on the province of the immunity statute is meritless.”

Justice Kennedy stated that the majority’s extinguishment of the “no-proximate-cause rule will have a “chilling effect on policing and will aid criminals in their flight to avoid apprehension” because “fear of liability will make law-enforcement officers think twice before engaging in a pursuit and will embolden criminals.”

Dissent Suggests Return to Trial Court
In his dissent, Justice Pfeifer suggested that the pursuit was unnecessary because the officers were familiar with Barnhart and that chasing him was not the only way to apprehend him.

He agreed with the Court taking the extraordinary measure to uphold summary judgment for Adkins, who was not involved in the chase, but maintained the trial court should determine the role of the other officers based on the immunity statute.

“We are loathe to substitute our judgment for that of lower courts which have been guided by a correct legal standard, we should positively recoil at inserting our judgment when a lower court has not had the opportunity to apply the proper legal standard,” he wrote.

Justice O’Neill joined Justice Pfeifer’s opinion and wrote separately to argue that Argabrite should be able to pursue her case in trial court against all the officers except Adkins.

“I disagree, however, with the majority’s decision to weigh the evidence and grant summary judgment in favor of law enforcement. Both the trial court and the appellate court used the wrong legal standard when granting summary judgment to the law-enforcement officers here,” he wrote.

2015-0348. Argabrite v. Neer, Slip Opinion No. 2016-Ohio-8374.

View oral argument video of this case.

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