dissenting.
{¶ 95} I respectfully disagree -with the majority’s conclusion that the question whether Assistant Chief Massucci’s operation of his vehicle constituted willful or wanton misconduct should be adjudicated at trial. Accordingly, I dissent.
{¶ 96} “The Supreme Court has also held that ‘wanton misconduct [is] the failure to exercise any care whatsoever.’ Fabrey v. McDonald Village Police Dept. [1994], 70 Ohio St.3d 351, 356[, 639 N.E.2d 31]. The court has explained, ‘ “[M]ere negligence is not converted into wanton misconduct unless the evidence establishes a disposition to perversity on the part of the tortfeasor.” Such perversity must be under such conditions that the actor must be conscious that his conduct will in all probability result in injury.’ Id.[, quoting Roszman v. Sammett (1971), 26 Ohio St.2d 94, 96-97, 55 O.O.2d 165, 269 N.E.2d 420].” Cornelison v. Colosimo, 11th Dist. No. 2009-T-0099, 2010-Ohio-2527, 2010 WL 2245614, at ¶ 42.
{¶ 97} Willful misconduct “implies intent, but the intention relates to the misconduct and not merely to the fact that some specific act, such as operating an automobile, was intentionally done.” Tighe v. Diamond (1948), 149 Ohio St. 520, 527, 37 O.O. 243, 80 N.E.2d 122.
{¶ 98} “Although wanton misconduct normally is a jury question, the standard of showing wanton misconduct is high. Where the evidence in the record does not suggest a material fact issue on the question of reckless or willful or wanton misconduct, a trial court may properly determine the case by means of summary judgment.” Iberis v. Mahoning Valley Sanitary Dist. (Dec. 21, 2001), 11th Dist. No. 2000-T-0036, 2001 WL 1647184, at *6.
{¶ 99} The record in this case demonstrates that Massucci was negligent, but the evidence does not establish that Massucci engaged in willful or wanton misconduct. This court has previously held that when “[c]onsidering the totality of the evidentiary materials,” if “there is no evidence that [the] [o]fficer * * * acted in deliberate or reckless disregard for the safety of others,” then “as a matter of law, there is no material issue of fact regarding whether [the] [o]ffícer[’s] * * * conduct constituted ‘willful or wanton misconduct,’ ” and summary judgment should be granted. Rodgers v. DeRue (1991), 75 Ohio App.3d 200, 205, 598 N.E.2d 1312.
{¶ 100} Massucci’s behavior, while negligent, did not connote a deliberate or reckless disregard for the safety of others; he utilized a degree of care in response to the emergency call. He testified that he drove 45 m.p.h. in a 35 *733m.p.h. zone, slowed down when he approached the intersection, and swerved in an attempt to avoid the accident.
{¶ 101} While, as the majority notes, there may be differing views about Massucci’s speed, “[t]he parties’ dispute as to * * * his actual speed does not * * * preclude a grant of summary judgment.” Ybarra v. Vidra, 6th Dist. No. WD-04-061, 2005-Ohio-2497, 2005 WL 1201224, at ¶ 18. Furthermore, Massuc-ci’s speed did not demonstrate misconduct sufficient to overcome sovereign immunity; driving in excess of the posted speed limit is not akin to willful or wanton misconduct.
{¶ 102} Additionally, the lack of emergency lights and sirens on his vehicle does not constitute willful or wanton misconduct. Lipscomb v. Lewis (1993), 85 Ohio App.3d 97, 100-101, 619 N.E.2d 102 (a driver of an emergency vehicle does not automatically lose immunity under R.C. Chapter 2744 by failing to activate the vehicle’s lights or siren on an emergency run). Furthermore, Massucci was not required to equip his personal vehicle with emergency lights and sirens. Moreover, emergency vehicles with activated emergency lights and audible sirens had passed through the intersection before Massucci and were traveling shortly behind Massucci, alerting pedestrians and drivers near the intersection of the approaching emergency vehicles.
{¶ 103} Evidence presented showed that Massucci swerved to the right in an effort to avoid hitting Campbell. Further, Massucci slowed his vehicle, demonstrating an exercise of caution, as he approached the intersection. See Moore v. Columbus (1994), 98 Ohio App.3d 701, 708, 649 N.E.2d 850 (“Officer Elder immediately applied his brakes and swerved in an attempt to miss the vehicle. This behavior simply does not constitute a deliberate or reckless disregard for the safety of others”). The fact that Massucci acted to avoid and/or minimize the impact of the collision, even though he was unsuccessful, shows that he did not fail to exercise any care whatsoever or act in a reckless disregard of the safety of others. See Hewitt v. Columbus, 10th Dist. No. 08AP-1087, 2009-Ohio-4486, 2009 WL 2759735, at ¶ 29.
{¶ 104} While the evidence demonstrates that Massucci operated his vehicle in a negligent manner, the evidence presented does not demonstrate that Massucci was indifferent to the safety of others and/or deliberately failed to discharge some specific duty relating to safety. See Tighe, 149 Ohio St. at 527, 80 N.E.2d 122. To avoid summary judgment, evidence of a “disposition to perversity” or “reckless or willfulness” is required. See Cornelison, 2010-Ohio-2527, 2010 WL 2245614, at ¶ 42. A jury cannot be allowed to infer willful and wanton misconduct from a series of negligent acts. Accordingly, the majority’s conversion of negligent conduct into willful/wanton misconduct establishes a troublesome precedent.
*734{¶ 105} Regarding the city of Geneva’s liability, a city is liable for injury, death, or loss of property caused by the negligent operation of a motor vehicle by its employee when the employee is engaged in the scope of his or her employment and authority. R.C. 2744.02(B). However, a statutory defense to liability applies in this case. A city is immune from liability when “[a] member of a municipal corporation fire department or any other firefighting agency was operating a motor vehicle while engaged in duty at a fire, proceeding toward a place where a fire is in progress or is believed to be in progress, or answering any other emergency alarm and the operation of the vehicle did not constitute willful or wanton misconduct.” R.C. 2744.02(B)(1)(b). Because Massucci was responding to a fire in progress and his acts, while negligent, did not constitute willful or wanton misconduct, the city of Geneva is immune from liability.
{¶ 106} While Massucci should not have operated his vehicle in a negligent manner and the harm caused by his negligence is devastating, both Massucci and the city of Geneva are entitled to immunity under R.C. Chapter 2744. Accordingly, I would reverse the decision of the trial court and grant summary judgment.
{¶ 107} For the reasons stated above, I respectfully dissent.