A Dayton man who was towed away in his car after he wrecked it lost his claims that the deputy who responded to the scene and the Montgomery County sheriff were reckless, an Ohio appeals court ruled. However, the man will be permitted to submit an amended lawsuit against the tow-truck company.

Mark Gilliam, who was injured in the accident, was discovered at the tow-truck company’s lot six hours later and transported to a hospital. He had a collapsed lung, dislocated hip, and several fractures.

The Second District Court of Appeals unanimously concluded that Gilliam didn’t present any information that the deputy knew his conduct at the accident scene would likely result in injury to Gilliam, and the claim against the sheriff for negligently training the deputy had no supporting evidence.

Car Towed While Man Was Inside
Montgomery County Deputy Brian Crowe responded about 3 a.m. on Jan. 1, 2015, after Gilliam’s car crashed into a utility pole. Power lines that had fallen across the vehicle had to be removed. Busy Bee Auto Parts & Towing was called and towed the car to its nearby business location. Until a Busy Bee employee found him later that morning, Gilliam was still in his car.

Suits Filed in Federal and State Courts
In March 2016, Gilliam filed a civil lawsuit in Montgomery County Common Pleas Court asking for compensatory and punitive damages. He alleged that Crowe was negligent, grossly negligent, or reckless for not noticing that Gilliam was inside the car and that Busy Bee was negligent for failing to ensure no one was in the car before towing it. Gilliam also contended that Montgomery County Sheriff Phil Plummer failed to properly train, supervise, and control Crowe.

Gilliam claimed the actions of the deputy, sheriff, and tow-truck company violated both federal and state law. A federal district court considered the lawsuit first. It dismissed the federal claims against the deputy and the sheriff, but returned the case to the county common pleas court to review the claims against the officers made under state law and Gilliam’s updated complaint against Busy Bee.

The trial court in November 2016 dismissed the case against the deputy and sheriff, concluding they were immune from liability under state law, and denied Gilliam’s request to revise the Busy Bee complaint. Gilliam appealed to the Second District.

Complaint Against Tow-Truck Company Not Necessarily Futile
“We have scoured both Ohio law and the case law of jurisdictions across the country and have found no authority suggesting that a tow-truck driver who has been called by police to tow a vehicle has a general duty to inspect the inside of the vehicle before towing it,” Judge Michael T. Hall wrote in the Second District’s June 23 decision. “This isn’t to say that a duty to inspect cannot exist in certain situations. In our opinion, there may be particular circumstances in which a duty to inspect does exists. It could be that the driver had in fact observed that Gilliam was still in the car, or that the driver was informed there was someone in the car.”

The Second District acknowledged, however, that Gilliam’s complaint alleging that the company was negligent doesn’t include any information about what Busy Bee or the tow-truck driver knew, where Gilliam was located in the car, or whether the driver should have seen him. But Ohio follows the rule that a complaint shouldn’t be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts to support his claim, Judge Hall stated. The appeals court decided that Gilliam can submit a revised complaint to the trial court because the appeals court couldn’t conclude that the effort would have been futile.

Neither Deputy nor Sheriff Legally Responsible for Actions
While the trial court ruled that the deputy and sheriff were immune from legal responsibility in both their official and individual capacities, the appeals court noted that Gilliam’s appeal focused only on whether they were liable for their conduct as individuals.

Gilliam argued that Crowe didn’t properly inventory the vehicle at the accident site, didn’t follow proper police procedures, didn’t remove Gilliam from a position of peril, and didn’t provide adequate and proper emergency or medical care and treatment. The Second District explained that law enforcement officers in Ohio are immune from liability unless their acts or omissions are wanton or reckless. The court focused on recklessness, which essentially is the conscious disregard of or indifference to a known or obvious risk of harm to another.

“None of the factual allegations in the complaint here suggests that Crowe knew there was a risk of harm or that a risk of harm was obvious,” the Second District’s opinion stated. “There are no allegations about what Crowe knew or should have known. At most, the allegations suggest that Crowe was negligent, which is not enough to impose liability.”

As for the claims against the sheriff for his training and supervision of the deputy, the court concluded they were “bare conclusory statements with no supporting factual allegations.”

Judges Jeffrey E. Froelich and Michael L. Tucker joined Judge Hall’s opinion.

Gilliam v. Crowe, 2017-Ohio-5494.

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