York v. Ohio State Highway Patrol

Moyer, C.J.,

concurring. I concur separately in the judgment of the majority for the following reasons. Our inquiry should begin with R.C. 4511.24, which requires emergency and public safety vehicles, when responding to emergency calls, “to drive with due regard for the safety of all.persons using the street or highway” (emphasis added), if they are to be exempt from *146the prima facie speed limitations set forth in R.C. 4511.21. The duty-created by R.C. 4511.24 extends to all persons, which would include a person being pursued by a police vehicle.

The allegations of the administratrix’s complaint that the officers used excessive force to engage in a high speed chase with the decedent, ultimately causing him to lose control of his vehicle, would seem to pass the test for determining a motion to dismiss filed pursuant to Civ. R. 12(B)(6). This court’s opinions do not require a complaint to contain anything more than brief and sketchy allegations of fact to survive a motion to dismiss under the notice ■ pleading rule.

Nevertheless, with respect to the majority’s analysis of R.C. 2744.02, I do not agree that the mere allegation that defendants acted willfully or wantonly, thereby causing decedent’s fatal injuries, is sufficient pleading of fact to deprive them of the immunity provided by R.C. 2744.02(B)(1)(b). A police officer’s act of pursuing a vehicle at high speed is not on its face a wanton or willful act.