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Hoffman v. Gallia County Sheriff's Office

Court of Appeals of Ohio, Fourth District, Gallia

December 12, 2017

NICHOLAS G. HOFFMAN, et al., Plaintiffs-Appellees,
v.
GALLIA COUNTY SHERIFF'S OFFICE, et al., Defendants-Appellants.

         CIVIL CASE FROM COMMON PLEAS COURT

          Mark Landes and Aaron M. Glasgow, Columbus, Ohio, for Appellants.

          Jeffrey L. Finley, Gallipolis, Ohio, for Appellees.

          DECISION AND JUDGMENT ENTRY

          PER CURIAM.

         {¶ 1} This is an appeal from a Gallia County Common Pleas Court decision that denied summary judgment to Gallia County Sheriff Joseph R. Browning, Gallia County Sheriff's Deputy Randall G. Johnson, the Gallia County Sheriff's Department, and the Gallia County Commissioners, defendants below and appellants herein.[1] The trial court determined that genuine issues of material fact remain as to whether appellants are immune from liability under R.C. Chapter 2744 for the injuries suffered by Nicholas G. Hoffman and Tonnette D. Hoffman, plaintiffs below and appellees herein. Appellants assign the following errors for review:

FIRST ASSIGNMENT OF ERROR:
"THE TRIAL COURT ERRED IN FINDING THAT A GENUINE ISSUE OF MATERIAL FACT EXISTS REGARDING WHETHER APPELLANT JOHNSON ACTED IN A 'WANTON AND WILLFUL MANNER' UNDER R.C. 2744.02(B)(1)(a)."
SECOND ASSIGNMENT OF ERROR:
"THE TRIAL COURT ERRED IN FINDING THAT A GENUINE ISSUE OF MATERIAL FACT EXISTS REGARDING WHETHER APPELLANT JOHNSON ACTED WITH MALICIOUS PURPOSE, IN BAD FAITH OR IN A WANTON OR RECKLESS MANNER UNDER R.C. 2744.03(A)(6)(b)."

         I

         BACKGROUND

         {¶ 2} This appeal arises out of a May 29, 2010 automobile collision involving Gallia County Sheriff's Deputy Randall Johnson and Ohio State Highway Patrol Trooper Nicholas G. Hoffman. Before the accident occurred, both Deputy Johnson and Trooper Hoffman were responding to a call for help from Ohio State Highway Patrol Trooper Keith Fellure. Trooper Fellure indicated that he had located a vehicle involved in a "rolling domestic" on Left Fork Road and requested assistance with the three individuals found with the vehicle.

         {¶ 3} While Deputy Johnson and Trooper Hoffman were en route to assist Trooper Fellure, both reached speeds over 100 miles per hour. Trooper Hoffman's vehicle was in front of Deputy Johnson's vehicle, but at some point, Deputy Johnson lost sight of Trooper Hoffman's vehicle. As Deputy Johnson topped a hill and rounded a slight curve, he saw Trooper Hoffman's vehicle backing up in his lane of travel in order to turn left onto Left Fork Road. Deputy Johnson applied his brakes and swerved to the left of the center line in an attempt to avoid a collision, but was unable to stop his vehicle before colliding with Trooper Hoffman's vehicle. A subsequent crash investigation indicated that Deputy Johnson's vehicle was traveling around 65 to 74 miles per hour at the point of impact.

         {¶ 4} Appellees subsequently filed a complaint and alleged that Deputy Johnson negligently, willfully, wantonly, and recklessly caused appellees' injuries. Appellants denied liability and additionally claimed that they are statutorily immune from liability under R.C. Chapter 2744.

         A

         SUMMARY JUDGMENT MOTIONS

         {¶ 5} Both parties filed summary judgment motions. Appellees asserted that no genuine issues of material fact remain concerning appellants' liability for appellees' injuries and regarding appellants' statutory immunity. Appellees alleged that based upon the evidence in the record, reasonable minds could only conclude that Deputy Johnson operated his vehicle in a willful, wanton, and reckless manner when he responded to Trooper Fellure's call for assistance. Appellees claimed that Deputy Johnson's conduct was willful, wanton, and reckless for the following reasons: (1) he was traveling between 101-106 mph on a two-lane roadway with a 55 mph speed limit; (2) his speed was grossly excessive given the road contours; (3) he did not slow down as he approached the intersection of Jackson Pike and Left Fork Road; (3) he did not know the location of Left Fork Road; (4) he did not have sufficient training regarding high-speed emergency vehicle handling; (5) he drove left-of-center; (6) he did not exhibit due regard for safety; (7) he was unaware of a departmental policy concerning officer conduct when responding to an emergency call; and (8) after the accident, the sheriff ordered Deputy Johnson to complete an emergency vehicle course. Appellees argued, therefore, that appellants are not statutorily immune from liability.

         {¶ 6} Appellants also asserted that no genuine issues of material fact remain as to whether they are statutorily immune from liability under R.C. 2744.02(B)(1)(a) and 2744.03(A)(6)(a). In contrast to appellees' argument, however, appellants claimed that reasonable minds could only conclude that Deputy Johnson's conduct was not willful, wanton, or reckless.[2] They argued that Johnson's operation of his vehicle did not constitute willful, wanton, or reckless conduct for the following reasons: (1) Deputy Johnson activated his lights and sirens; (2) Deputy Johnson was responding to a fellow officer's call for help; (3) Deputy Johnson was traveling in his own lane; (4) Trooper Hoffman reversed his vehicle in Deputy Johnson's lane of travel; (5) the roadway was dry and it was clear day; (6) traffic was light; (7) there were no intersections with traffic control devices along the route; (8) Deputy Johnson applied his brakes and attempted to swerve to avoid Trooper Hoffman's cruiser; and (9) Deputy Johnson did not violate the sheriff's office emergency run response policy. Appellants further argued that despite Deputy Johnson's speed, none of the evidence shows that Johnson's decision to exceed the speed limit posed an obvious risk to others or presented a high likelihood that injury would result. They additionally contended that even if Deputy Johnson's training was not as extensive as Trooper Hoffman's, he did not lack any training or know that he would be unable to control a vehicle traveling over 100 miles per hour.

         B

         SUMMARY JUDGMENT EVIDENCE

         {¶ 7} The parties primarily relied upon the deposition testimony to support their summary judgment motions. Appellants additionally presented a copy of the sheriff's emergency-run policy.

         1

         Sheriff's Emergency-run Policy

         {¶ 8} The policy states: "During emergency runs, employees must always give due regard to all other vehicles using the roadways. * * * * [T]he law does not relieve the vehicle operator from the duty to drive with due regard for the safety of all persons and property upon the highway." [3] The policy further provides that "[e]mployees' driving actions must be very cautious-slowing at all intersections and sometimes even stopping."

         2

         Deputy Johnson

         {¶ 9} Deputy Johnson stated that before the accident occurred, he heard a dispatch regarding a motor-vehicle-domestic-violence situation. The dispatch indicated that the suspect vehicle was traveling towards Jackson Pike. Deputy Johnson headed westbound on Jackson Pike, behind an Ohio State Highway Patrol cruiser. Deputy Johnson related that he and the patrol cruiser were "going in and out of traffic at a high rate of speed, " but he slowed down due to heavy traffic and eventually lost sight of the vehicle. Shortly thereafter, Deputy Johnson met Trooper Hoffman in a parking lot. They discussed the suspect vehicle. Deputy Johnson then heard Trooper Fellure state over the radio that he had tracked the suspect vehicle to Left Fork Road. Deputy Johnson indicated that neither he nor Trooper Hoffman knew the precise location of Left Fork Road, but both knew its general location. Both Deputy Johnson and Trooper Hoffman left the parking lot and headed eastbound on Jackson Pike, towards Left Fork Road. Deputy Johnson stated that, at some point, he lost sight of Trooper Hoffman's vehicle. While en route to Trooper Fellure's location, Deputy Johnson heard Trooper Fellure radio that he located the suspect vehicle and it had crashed. Trooper Fellure indicated that there were multiple suspects and asked for assistance. Deputy Johnson stated that once Trooper Fellure requested assistance, he accelerated and activated his lights and sirens. Deputy Johnson continued on a straight stretch of road before topping a hill.

         {¶ 10} As Deputy Johnson topped the hill and rounded a "little" curve, he saw Trooper Hoffman's vehicle backing up in Deputy Johnson's lane of travel and trying to turn left onto Left Fork Road. Deputy Johnson hit the brakes and tried to swerve to avoid Trooper Hoffman's vehicle, but was unable to do so. Deputy Johnson was unaware of how fast he was traveling, but in his written statement made shortly after the accident, he estimated that as he topped the hill, he was going approximately 70 mph. At the time of his deposition three years later, he could not state how fast he was going.

         {¶ 11} Deputy Johnson stated that he is familiar with Jackson Pike, the road upon which the accident occurred. He indicated that he drives by the accident scene every day when he travels to work. Deputy Johnson related that he is familiar with the hill and the curve-the point where he noticed Trooper Hoffman's vehicle. He stated that while he did not know how fast he was traveling on May 29, 2010, he did not believe he was traveling too fast for the hill and curve conditions. Deputy Johnson further indicated that he believes the distance between the top of the hill and the location of Trooper Hoffman's vehicle was a couple hundred yards.

         {¶ 12} Deputy Johnson explained that he became employed as a part-time sheriff after he completed the Ohio Police Officers Training Academy (OPOTA) in 2007. Deputy Johnson stated that part of training including a driving course and that although the driving course did not cover high-speed maneuvering, it did include braking, maneuvering, and high-speed driving. He indicated that every few months, he returns to OPOTA for training classes.

         {¶ 13} Deputy Johnson stated that at the time of the accident, he did not know whether the sheriff's office had a written policy regarding emergency-response calls. He explained that he was trained to use lights and sirens during an emergency run and to travel with "regards to safety." Deputy Johnson denied that he was disciplined as a result of the accident. He stated that the sheriff did, however, place "a letter * * * in [his] file about taking a driving course."

         3

         Trooper Hoffman

         {¶ 14} Trooper Hoffman stated that on the date of the accident, he received a dispatch regarding a "rolling domestic." Trooper Hoffman explained that a "rolling domestic" involves a domestic violence situation in which the individuals are traveling in moving vehicles.

         {¶ 15} Trooper Hoffman related that he located the suspect vehicle and attempted to stop the vehicle, but the vehicle failed to yield. Trooper Hoffman thus initiated a pursuit. He followed the vehicle to Jackson Pike. Traffic became congested and he discontinued his pursuit. Trooper Hoffman then drove to a parking lot and Deputy Johnson subsequently appeared. Trooper Hoffman gave Deputy Johnson the description of the suspect vehicle and asked him if he had seen it. Trooper Hoffman then heard Trooper Fellure state over the radio that he found a vehicle involved in a crash on Left Fork Road. Trooper Hoffman departed for the accident scene.

         {¶ 16} Trooper Hoffman stated that he did not activate his lights and sirens, but he did exceed the speed limit so as to not "wast[e] time." Trooper Hoffman estimated that he traveled between 80-85 mph during the three-and-one-half mile stretch to Left Fork Road. He does not believe that he acted recklessly or wantonly by exceeding the speed limit. Trooper Hoffman explained that while en route to Left Fork Road, he did not encounter much traffic and he did not need to pass any vehicles. Moreover, Trooper Hoffman stated that although "[t]here is a slight bend to the road, " he would not "call it a curve."

         {¶ 17} Trooper Hoffman explained that he was unaware Deputy Johnson had followed him until he noticed Deputy Johnson's vehicle in the rear-view mirror. Trooper Hoffman stated that he noticed Deputy Johnson's vehicle just before he started backing up to turn left onto Left Fork Road. Trooper Hoffman believed Johnson was around "a quarter mile or better behind [him]." Hoffman explained that Deputy Johnson "was far enough behind [him], [that he] knew [he] had a safe amount of time to make [the] turn."

         {¶ 18} Trooper Hoffman related that he underwent a six-month training course at the Ohio State Patrol Academy, with approximately two weeks dedicated to driver-training skills, such as defensive driving skills, maneuverability skills, high-speed-precision maneuverability, vehicle pursuits, inclement weather driving, and driving in tandem with another vehicle. Trooper Hoffman additionally related that he completes yearly in-service training that includes supplemental driver training. Trooper Hoffman stated that when employed as a trooper, he commonly drove over 100 miles per hour, even while en route to routine calls. The fastest he has ever driven in a patrol cruiser is 147 miles per hour.

         {¶ 19} Trooper Hoffman explained that the standard applicable to law enforcement officers conducting emergency runs is "due regard for safety of the other motorists around you." He agreed that some emergency runs necessitate exceeding the posted speed limit.

         4

         Henry Lipian

         {¶ 20} Appellees' expert witness, Henry Lipian, testified that he conducted an accident reconstruction primarily to determine the speed of Deputy Johnson's vehicle at the time of the accident. Lipian explained that his analysis showed that Deputy Johnson's vehicle was traveling between 101 and 106 miles per hour at the point where visible tire marks appeared on the road and between 66 and 74 miles per hour at the point of impact. Lipian stated that the reconstruction indicates that Deputy Johnson "was swerving to the left while at the same time engaging in a hard braking event."

         {¶ 21} Lipian further opined that Johnson's conduct was reckless. Lipian stated, "the speed in and of itself, to me, is a recklessly high speed." He explained how he reached his conclusion: "One of the things I kind of apply is even on my most liberal analysis, if I were to stop somebody, when I was still a policeman, for a speed that I'm looking at, would I consider giving them a warning? No. You're not getting a warning for going 100 miles an hour in a 55 zone approaching an intersection." Lipian did not believe that there is any "justification for that kind of speed." Lipian further stated that combining Deputy Johnson's excessive speed "with an inexperienced officer who has minimal, if any, real legitimate training, who's part time, you know, that factors into it as well." Lipian believed that an individual with "a considerable amount of driver's training, maybe even a driving instructor, [who] has a lot of experience, " might be able to "push the envelope a little bit more on certain conditions where you can drive faster."

         {¶ 22} In his written report, Lipian stated that "[t]he nature of the emergency call did not justify [Deputy Johnson's] heedless disregard for the safety of the motoring public." Lipian indicated that Deputy Johnson did not possess "the requisite training either in classroom or on-the-road training, and as a part-time officer he did not have the overall experience to operate a patrol car at such high speeds as would a more highly trained officer." Lipian ultimately concluded that Deputy Johnson "displayed a flagrantly reckless lapse of due care. There was no justification for the high speed he was operating at, especially upon the approach to the intersection and coming up behind Trooper Hoffman. His speed was unsafe, unreasonable and completely unjustified."

         5

         Sergeant Fred Cook

         {¶ 23} OSHP Sergeant Fred Cook testified that he conducted an accident reconstruction. His analysis indicated that Deputy Johnson was traveling between 89 and 97 miles per hour when he started to skid and 65 to 72 miles per hour at the time of impact. Sergeant Cook stated that he also examined the power train control module from Trooper Hoffman's vehicle. It indicated that twenty seconds before impact, Hoffman's vehicle had been traveling 107.7 miles per hour and continued decelerating until it reached zero. The accident investigation report that Sergeant Cook prepared indicates that as one approaches the accident scene from the west, as Deputy Johnson was, the roadway slopes downward with a gradual curve to the left and there is over 1100 feet of visibility.

         6

         Trooper Fellure

         {¶ 24} Trooper Fellure testified that on the date of the accident, he tracked the suspect vehicle to Left Fork Road. He radioed in the information and drove down Left Fork Road. When Trooper Fellure encountered the vehicle, it was sitting in a ditch and three individuals were standing outside of the vehicle. He ordered them to the ground, but "[t]hat wasn't going to happen." Trooper Fellure explained that the individuals "started running right at [him], " and he used his shoulder microphone to call for help. He does not recall the precise words he used to call for help, or if his "voice was amped up on the radio where [other officers] could tell, hey, we've go to get there or not, you know." Trooper Fellure also could not recall whether he used a code, such as "87, " which means he needs backup, or "88, " which means "officer in trouble."

         C

         TRIAL COURT'S DECISION

         {¶ 25} On January 20, 2017, the trial court overruled the parties' summary judgment motions. The court determined that genuine issues of material fact remain regarding whether Deputy Johnson operated his vehicle in a willful, wanton, or reckless manner. This appeal followed.

         II

         ASSIGNMENTS ...


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