[Cite as Upman v. Lucas Cty. Bd. of Commrs., 2016-Ohio-7884.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
Paul Jeffrey Upman, etc. Court of Appeals No. L-16-1044
Appellee Trial Court No. CI0201402706
v.
Lucas County/Board of Lucas County
Commissioners, et al. DECISION AND JUDGMENT
Appellants Decided: November 23, 2016
*****
Charles E. Boyk, Michael A. Bruno, and Wesley D. Merillat, for appellee.
Frank H. Scialdone and Cara M. Wright, for appellants.
*****
OSOWIK, J.
{¶ 1} This is an appeal from a February 11, 2016 judgment of the Lucas County
Court of Common Pleas, denying summary judgment to appellants Lucas County and the
Board of Lucas County Commissioners. For the reasons set forth more fully below, this
court affirms the judgment of the trial court.
{¶ 2} Appellant, Paul Jeffrey Upman, as guardian, sets forth the following
assignment of error:
{¶ 3} THE TRIAL COURT ERRED WHEN IT DENIED DEFENDANT LUCAS
COUNTY/BOARD OF LUCAS COUNTY COMMISSIONERS THE BENEFIT OF
IMMUNITY UNDER OHIO REVISED CODE CHAPTER 2744.
{¶ 4} The following undisputed facts are relevant to this appeal. On February 1,
2014, Lucas County was under a Level 3 snow emergency due to an ongoing winter
storm. On February 1, 2014, Deputy Luis Gonzales (“Gonzales”) of the Lucas County
Sheriff’s Department was on duty during the first shift in the course and scope of his
employment at the county jail.
{¶ 5} Despite the extreme, inclement weather and an official snow emergency
being in effect, Gonzales took a Sheriff’s Department van and began to drive to an area
McDonald’s to purchase food. While driving across a bridge on Summit Street over a
creek approximately 35 feet below the bridge, Gonzales lost control of his vehicle, the
vehicle spun out of control, went across multiple lanes of traffic, hit the curb, and skid to
a stop positioned in the opposite direction of which the vehicle had originally been
travelling.
{¶ 6} Following the loss of control and accident, Gonzales remained in the vehicle
and began to compose himself. A woman who had been driving at that time in that
location witnessed the incident. The witness approached Gonzales and advised him that
she was quite concerned as she had observed a male pedestrian walking on the bridge
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when Gonzales lost control of the vehicle but she no longer saw the man after the vehicle
spun to a stop.
{¶ 7} At this point, Gonzales then exited his vehicle, looked over the side of the
bridge, and observed a badly injured man lying on the ice covered stream below the
bridge. Gonzales returned to his vehicle, called his dispatcher, advised that he had lost
control of his vehicle, and relayed that a fallen individual was below the bridge.
{¶ 8} In the interim, several Toledo police officers out on patrol came upon the
scene of the accident. The officers approached Gonzales and inquired about the incident.
Gonzales advised them that there is a man on the ice below the bridge. Gonzales did not
advise them that he had lost control of his van and hit the bridge curb or that he had been
approached by an eyewitness who subsequently left the scene and whose name and
contact information he failed to obtain.
{¶ 9} The Toledo police officers immediately summoned emergency rescue
personnel for the injured man. Upon further inquiry by the officers, Gonzales conveyed
that he had lost control of his motor vehicle on the bridge and spun out and that there had
been an eyewitness. Upon questioning, he also conveyed that he had not secured her
name or contact information.
{¶ 10} Upon the arrival of rescue personnel at the scene, Gonzales immediately
returned to work, arranged to leave work early, and then went home. Gonzales did not
check on the status of the injured man. Gonzales was not cited for any traffic law
violations in connection to this accident.
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{¶ 11} The injured man, a legally incompetent adult male represented by an
appointed guardian, was transported by emergency personnel to St. Vincent Mercy
Hospital. The injured man sustained multiple severe injuries, including a ruptured
spleen, collapsed lungs, numerous bone fractures, and cranial injuries including cranial
bleeds. Emergency surgery was performed.
{¶ 12} Paul Jeffrey Upman, the father and court-appointed legal guardian of the
injured man, subsequently filed a negligence action against Gonzales, Lucas County, and
the Lucas County Board of County Commissioners.
{¶ 13} Although Gonzales individually is entitled to statutory immunity, as
conceded by the plaintiff, R.C. 2744.02(B)(1) establishes that a government employer is
expressly liable for damages and injuries caused by an employees, “[N]egligent operation
of any motor vehicle * * * when engaged within the scope of employment.” An
exception to this statutory liability would be in the event that the employee was
responding to an emergency call at the time of the incident, which is not the scenario
presented in this case.
{¶ 14} Following the filing of the underlying negligence complaint, the parties
engaged in lengthy and extensive discovery, including the taking of half a dozen
depositions in connection to this matter.
{¶ 15} On October 1, 2015, appellants filed for summary judgment. In support,
appellants maintained that all named defendants are shielded from liability pursuant to
statutory immunity. In turn, appellee maintained the applicability of the R.C.
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2744.02(B)(1) statutory immunity exception in connection to Lucas County/Lucas
County Board of County commissioners.
{¶ 16} On February 11, 2016, the trial court granted summary judgment, in part,
and denied summary judgment, in part. Specifically, Gonzales was granted summary
judgment based upon applicable statutory immunity, but summary judgment was denied
to Lucas County and the Board of County Commissioners. The trial court held in
pertinent part:
Upon a review of the record, the Court concludes that reasonable
minds could differ as to the proximate cause of Jeff’s injuries. Deputy
Gonzales admitted that a passerby told him a pedestrian was on the bridge
at the time he lost control of the van. Deputy Gonzales then immediately
looked over the bridge and saw Jeff on the ice below the bridge in close
proximity to where he said the van hit the curb. Further, Plaintiff’s expert,
Robert G. Pachella, opined that Jeff was either struck by the van or fell
from the bridge as a result of a behavioral reaction to avoid the van * * *
[G]iven the admission by Deputy Gonzales that a passerby told him a
pedestrian was on the bridge when he lost control of the van, the proximity
in time and space, and expert opinion that it could have been Jeff and not
the curb that was struck thereby propelling Jeff off the bridge, a jury could
well find in favor of the plaintiff * * * [R]easonable minds can infer, as did
officers Talton and Palicki, that Jeff jumped from the bridge to avoid being
struck by the van * * * Therefore, construing all inferences and doubts in
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favor of the plaintiff [non-moving party], the Court concludes that a
genuine issue of material fact exists as to causation.
{¶ 17} This appeal ensued.
{¶ 18} In the sole assignment of error, appellants maintain that the trial court erred
in denying summary judgment to Lucas County/Lucas County Board of Commissioners.
We do not concur.
{¶ 19} It is well-established that the standard of review governing summary
judgment rulings on appeal is de novo, applying the same standard as that utilized by the
trial court. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 671 N.E.2d 241 (1996). The
standard for summary judgment is delineated in Civ. R. 56(C). Granting summary
judgment is appropriate where there is no genuine issue of material fact, the moving party
is entitled to judgment as a matter of law, and when construing the evidence in favor of
the nonmoving party, reasonable minds cannot differ as to judgment in favor of the
movant. Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 375 N.E.2d 46
(1978).
{¶ 20} R.C. 2744.02(B)(1) governs the incident underlying this matter. It
establishes that political subdivisions, such as appellants, are encompassed by an
exception to statutory immunity pursuant to which liability in civil actions is imposed for
injuries and damages proximately caused by the negligent operation of a motor vehicle
by employees of the political subdivision acting in the course and scope of their
employment.
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{¶ 21} We are not persuaded by appellants’ suggestions that the inability to
absolutely rule out a suicide attempt by the injured party or similar wholly unsupported
conjecture in any way compromises the propriety of the disputed summary judgment
ruling.
{¶ 22} The record of evidence reflects that on February 1, 2014, Gonzales was in
uniform, on the job, and operating a motor vehicle owned by his employer. Gonzales
was in the course and scope of his employment. The record reflects the Gonzales elected
to drive the motor vehicle to an area fast food restaurant despite the snow emergency.
The record reflects that Gonzales lost control of his vehicle while driving across a bridge,
spun around multiple times across multiple lanes of traffic, struck something, and came
to rest in the opposite direction. The record reflects that an independent eyewitness
observed a male pedestrian on the bridge at the time Gonzales lost control of the vehicle
and no longer observed the pedestrian after the vehicle came to a stop. The record
reflects that a severely injured man was immediately discovered lying on the ice covered
creek below the bridge, in immediate proximity to the traffic incident. Assertions by
appellants that no genuine issue of material fact remains, and reasonable minds can only
conclude no proximate causation exists between the operation of the motor vehicle by
Gonzales and the man’s fall from the bridge and resulting injuries are wholly
unpersuasive.
{¶ 23} On the contrary, we find that when construing the evidence most strongly
in favor of the nonmoving party, ample evidence exists in the record from which
reasonable minds could infer the negligent operation of a motor vehicle by Gonzales
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proximately caused the 35-foot fall and severe injuries sustained by the injured party. As
such, we find that the denial of summary judgment to appellants was proper.
{¶ 24} Wherefore, the summary judgment ruling of the Lucas County Court of
Common Pleas is hereby affirmed. Appellants are ordered to pay the cost of this appeal
pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Thomas J. Osowik, J.
_______________________________
Stephen A. Yarbrough, J. JUDGE
CONCUR.
_______________________________
JUDGE
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