Bevelacqua v. Tancak

[Cite as Bevelacqua v. Tancak, 2022-Ohio-4442.]

STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )

JOHN BEVELACQUA C.A. No. 21CA011797

Appellant

v. APPEAL FROM JUDGMENT
ENTERED IN THE
JUSTIN TANCAK, et al. COURT OF COMMON PLEAS
COUNTY OF LORAIN, OHIO
Appellees CASE No. 18 CV 196005

DECISION AND JOURNAL ENTRY

Dated: December 12, 2022

TEODOSIO, Presiding Judge.

{¶1} Plaintiff-Appellant, John Bevelacqua, appeals from the decision of the Lorain

County Court of Common Pleas, granting summary judgment in favor of Defendant-Appellees,

the Lorain County Board of Commissioners (“Lorain County”), Columbia Township, and Deputy

Adam Shaw. This Court affirms in part, reverses in part, and remands for further proceedings.

I.

{¶2} Just after 2:30 a.m. on August 20, 2016, Sara Bevelacqua was killed when she was

thrown from the back of a motorcycle. Its driver, Justin Tancak, was speeding when Lorain County

Sheriff’s Deputy Adam Shaw spotted him and signaled for him to stop. A chase ensued, and

Deputy Shaw pursued Mr. Tancak at speeds of almost 120 mph. Several minutes later, Deputy

Shaw was directed to terminate his pursuit. He acknowledged the directive, reduced his speed,

and deactivated his cruiser’s lights and sirens. Nevertheless, he continued to follow the motorcycle

and drive well over the posted speed limit. He was still following the motorcycle when Mr. Tancak
 2

lost control and crashed near the eastbound ramp to State Route 20 from State Route 57. The crash

resulted in minor injuries to Mr. Tancak and fatal injuries to Ms. Bevelacqua. Following a review

of the incident, the Lorain County Sheriff’s Department terminated Deputy Shaw’s employment.1

{¶3} Mr. Bevelacqua, individually and as administrator of his daughter’s estate, filed

suit against Mr. Tancak, Mr. Tancak’s insurance company, the Lorain County Sheriff’s

Department, Deputy Shaw, and unnamed John Does. Mr. Bevelacqua later dismissed the

insurance company from the suit and sought leave to file an amended complaint. The purpose of

the amendment was to substitute Lorain County as a defendant in place of the Sheriff’s Department

and Columbia Township as a defendant in place of an unnamed John Doe. Mr. Bevelacqua

requested the latter substitution because he learned Deputy Shaw was engaged in patrol duties for

Columbia Township at the time of the crash due to an agreement between the township and Lorain

County for the provision of additional law enforcement services. Over objection, the trial court

allowed Mr. Bevelacqua to file his amended complaint.

{¶4} Mr. Bevelacqua’s amended complaint alleged (1) a negligence claim against Mr.

Tancak; (2) a gross neglect claim against Lorain County, Columbia Township, and Deputy Shaw,

(3) a negligent hiring, training, and retention claim against Lorain County and/or Columbia

Township; (4) an intentional and/or negligent infliction of emotional distress claim against all

named defendants; and (5) a wrongful death claim against all named defendants. The amended

complaint sought compensatory damages, burial and funeral expenses, costs, attorney fees, and

punitive damages from all named defendants, jointly and severally. Each named defendant

1
Deputy Shaw’s employment was later reinstated because an arbitrator found that he had not been
disciplined within the timeframe set forth by his employment contract and that his reinstatement
would not offend public policy.
 3

answered the amended complaint, and Deputy Shaw and Columbia Township cross-claimed Mr.

Tancak for indemnification.

{¶5} Lorain County, Columbia Township, and Deputy Shaw moved for summary

judgment on various grounds, including statutory immunity. Mr. Bevelacqua filed briefs in

opposition to each of their motions, and the three defendants filed replies. Upon review, the trial

court awarded summary judgment to Lorain County, Columbia Township, and Deputy Shaw. Mr.

Bevelacqua then filed a notice of voluntary dismissal with respect to his claims against Mr. Tancak,

and the trial court dismissed those claims.

{¶6} Mr. Bevelacqua now appeals from the trial court’s decision to award summary

judgment to Lorain County, Columbia Township, and Deputy Shaw. He raises four assignments

of error for our review.

II.

ASSIGNMENT OF ERROR I

THE LOWER COURT ERRED IN RULING THAT DEPUTY SHAW WAS
RESPONDING TO AN EMERGENCY CALL AND ENTITLED TO IMMUNITY
UNDER O.R.C. §2744.02.

{¶7} In his first assignment of error, Mr. Bevelacqua argues the trial court erred in its

summary judgment determination because the evidence showed Deputy Shaw was not “responding

to an emergency call” when his actions caused Mr. Tancak to lose control of his motorcycle. Upon

review, we must conclude genuine issues of material fact exist with respect to that issue.

Accordingly, this Court sustains Mr. Bevelacqua’s assignment of error on that basis.
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Summary Judgment Standard

{¶8} Appellate review of an award of summary judgment is de novo. Grafton v. Ohio

Edison Co., 77 Ohio St.3d 102, 105 (1996). Summary judgment is appropriate under Civ.R. 56

when: (1) no genuine issue as to any material fact remains to be litigated; (2) the moving party is

entitled to judgment as a matter of law; and (3) viewing the evidence most strongly in favor of the

nonmoving party, reasonable minds can come to but one conclusion and that conclusion is adverse

to the nonmoving party. Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977), citing Civ.R.

56(C). A court must view the facts in the light most favorable to the nonmoving party and must

resolve any doubt in favor of the nonmoving party. Murphy v. Reynoldsburg, 65 Ohio St.3d 356,

358-359 (1992). A trial court does not have the liberty to choose among reasonable inferences in

the context of summary judgment, and all competing inferences and questions of credibility must

be resolved in the nonmoving party’s favor. Perez v. Scripps-Howard Broadcasting Co., 35 Ohio

St.3d 215, 218 (1988).

{¶9} The Supreme Court of Ohio has set forth the nature of this burden-shifting

paradigm:

[A] party seeking summary judgment, on the ground that the nonmoving party
cannot prove its case, bears the initial burden of informing the trial court of the
basis for the motion, and identifying those portions of the record that demonstrate
the absence of a genuine issue of material fact on the essential element(s) of the
nonmoving party’s claims. The moving party cannot discharge its initial burden
under Civ.R. 56 simply by making a conclusory assertion that the nonmoving party
has no evidence to prove its case. Rather, the moving party must be able to
specifically point to some evidence of the type listed in Civ.R. 56(C) which
affirmatively demonstrates that the nonmoving party has no evidence to support the
nonmoving party’s claims. If the moving party fails to satisfy its initial burden, the
motion for summary judgment must be denied. However, if the moving party has
satisfied its initial burden, the nonmoving party then has a reciprocal burden
outlined in Civ.R. 56(E) to set forth specific facts showing that there is a genuine
issue for trial and, if the nonmovant does not so respond, summary judgment, if
appropriate, shall be entered against the nonmoving party.
 5

Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996).

Political Subdivision Immunity

{¶10} Ohio’s Political Subdivision Tort Liability Act, which governs political subdivision

liability and immunity, is codified in R.C. 2744.01 et seq. McNamara v. City of Rittman, 125 Ohio

App.3d 33, 43 (9th Dist.1998). The Act “sets forth a three-tiered analysis for determining whether

a political subdivision is immune from liability for injury or loss to property.” Hortman v.

Miamisburg, 110 Ohio St.3d 194, 2006-Ohio-4251, ¶ 9. Under the first tier of the analysis,

political subdivisions enjoy a general grant of immunity for any injuries, deaths, or losses

“allegedly caused by any act or omission of the political subdivision or [its] employee * * * in

connection with a governmental or proprietary function.” R.C. 2744.02(A)(1). “That immunity,

however, is not absolute.” McConnell v. Dudley, 158 Ohio St.3d 388, 2019-Ohio-4740, ¶ 21.

{¶11} Under the second tier of the analysis, a political subdivision’s “comprehensive

immunity can be abrogated pursuant to any of the five exceptions set forth at R.C. 2744.02(B).”

Shalkhauser v. Medina, 148 Ohio App.3d 41, 46 (9th Dist.2002). If one of those exceptions

applies, R.C. 2744.02(B) also provides several “full defenses” a political subdivision may assert

in specific instances. See R.C. 2744.02(B)(1)(a)-(c). Those full defenses, if proven, will result in

the political subdivision retaining its cloak of immunity. See McConnell at ¶ 22-23. If no full

defense is proven or available to the political subdivision under R.C. 2744.02(B)(1), then the

analysis proceeds to the third tier. Under the third tier, immunity “may be restored, and the

political subdivision will not be liable, if one of the defenses enumerated in R.C. 2744.03(A)

applies.” Moss v. Lorain Cty. Bd. of Mental Retardation, 9th Dist. Lorain No. 13CA010335, 2014-

Ohio-969, ¶ 10.
 6

{¶12} Mr. Bevelacqua does not dispute Lorain County and Columbia Township are

political subdivisions entitled to a general grant of immunity under R.C. 2744.02(A)(1). His first

assignment of error concerns the exception to immunity contained in R.C. 2744.02(B)(1) and the

full defense contained in R.C. 2744.02(B)(1)(a). That exception provides:

Except as otherwise provided in this division, political subdivisions are liable for
injury, death, or loss to person or property caused by the negligent operation of any
motor vehicle by their employees when the employees are engaged within the scope
of their employment and authority.

R.C. 2744.02(B)(1). A “full defense” to the foregoing exception is available if

[a] member of a municipal corporation police department or any other police
agency was operating a motor vehicle while responding to an emergency call and
the operation of the vehicle did not constitute willful or wanton misconduct * * *.

R.C. 2744.02(B)(1)(a). Read together, the foregoing statutes make clear that a political

subdivision will not be liable for an employee’s negligent operation of a motor vehicle if the

employee (1) was a member of a police agency, (2) who was responding to an emergency call, and

(3) who was operating the vehicle without engaging in willful or wanton misconduct. See id.

{¶13} The phrase “emergency call” is statutorily defined as “a call to duty, including, but

not limited to, communications from citizens, police dispatches, and personal observations by

peace officers of inherently dangerous situations that demand an immediate response on the part

of a peace officer.” R.C. 2744.01(A). An officer may be responding to a call to duty, and therefore

an emergency call, even if he lacks the authority to arrest. Smith v. McBride, 130 Ohio St.3d 51,

2011-Ohio-4674, ¶ 39-40. An “‘emergency call’ involves a situation to which a response by a

peace officer is required by the officer’s professional obligation.” Colbert v. Cleveland, 99 Ohio

St.3d 215, 2003-Ohio-3319, syllabus. To determine whether an emergency call exists in a pursuit

scenario, a court must consider “‘all the attendant facts and circumstances leading up to or giving

rise to the pursuit, including the operation of the fleeing motorist’s vehicle during the pursuit.’”
 7

(Emphasis omitted.) Shalkhauser at ¶ 24, quoting Wagner v. Heavlin, 136 Ohio App.3d 719, 729

(7th Dist.2000).

{¶14} The trial court found Lorain County and Columbia Township were immune from

suit because reasonable minds could only conclude they established a full defense to liability under

R.C. 2744.02(B)(1)(a). Regarding the “emergency call” element of that full defense, the trial court

found police officers have a duty to apprehend reckless motorists who make the roads dangerous

for others. Because Deputy Shaw observed Mr. Tancak traveling 70 mph in a 45-mph zone, the

court reasoned, the deputy was engaged in a call to duty when he attempted to apprehend Mr.

Tancak for speeding. Thus, the trial court concluded Deputy Shaw was “responding to an

emergency call” for purposes of R.C. 2744.02(B)(1)(a).

{¶15} Mr. Bevelacqua contends the full defense outlined in R.C. 2744.02(B)(1)(a) is

inapplicable because Deputy Shaw was not responding to an emergency call when Mr. Tancak lost

control of his motorcycle. At that time, Deputy Shaw had already been ordered to terminate his

pursuit of Mr. Tancak and had deactivated his lights and sirens in response to that command.

According to Mr. Bevelacqua, Deputy Shaw had an obligation to stop following Mr. Tancak once

he received the order to terminate his pursuit. Because the deputy disobeyed that order, Mr.

Bevelacqua argues, he was not answering a call to duty when the crash occurred. Thus, Mr.

Bevelacqua argues the trial court erred when it found the deputy was “responding to an emergency

call” under R.C. 2744.02(B)(1)(a).

{¶16} Initially, we note Mr. Bevelacqua’s assignment of error includes an argument that,

because he was not responding to an emergency call, “[Deputy] Shaw was no longer entitled to

the defense of political subdivision immunity.” That argument is misplaced. R.C. 2744.02(B)

only pertains to political subdivisions. “For the individual employees of political subdivisions, the
 8

analysis of immunity differs.” Cramer v. Auglaize Acres, 113 Ohio St.3d 266, 2007-Ohio-1946,

¶ 17. R.C. 2744.03(A)(6) governs individual employee immunity and does not require proof that

an employee was responding to an emergency call. See id. As such, Mr. Bevelacqua’s emergency

call argument is only relevant to Lorain County and Columbia Township. We limit our review

accordingly.

{¶17} The record reveals the following evidence. As he was traveling eastbound on State

Route 82, Deputy Shaw spotted Mr. Tancak’s motorcycle and a second motorcycle traveling

westbound. He clocked the motorcycles at 70 mph in a 45-mph zone, so he executed a U-turn,

activated his lights and sirens, and rapidly accelerated. Because the motorcyclists continued to

drive as Deputy Shaw changed direction, there was a significant gap between his cruiser and the

motorcycles when the pursuit began. A gap remained over the next forty seconds, at which point

the motorcycles reached Station Road. One motorcycle turned north onto Station Road while the

other continued westbound on State Route 82. Deputy Shaw decided to continue pursuing the

westbound motorcycle, driven by Mr. Tancak.

{¶18} Deputy Shaw was able to close the distance between his cruiser and Mr. Tancak’s

motorcycle about twenty seconds later. He read Mr. Tancak’s license plate before radioing

dispatch to identify the owner of the motorcycle and share his location. At that time, Deputy Shaw

did not advise dispatch there was a passenger on the back of the motorcycle. It was his testimony

that he did not initially notice Ms. Bevelacqua because there were so many other demands on his

attention.

{¶19} Deputy Shaw’s supervisor and other members of his department discovered Mr.

Tancak had a passenger on the back of his motorcycle when he drove through the intersection of

State Route 82 and State Route 83. Other deputies, including Deputy Adam Trifiletti, had
 9

positioned their cruisers to stop cross-traffic at that intersection and were waiting there when Mr.

Tancak and Deputy Shaw drove through it. When Deputy Trifiletti saw Mr. Tancak had a

passenger, he immediately told Deputy Shaw to terminate the pursuit. Deputy Shaw verbally

acknowledged that directive but also said he was going to keep following the motorcycle to “make

sure they don’t crash.” No one ordered Deputy Shaw not do so or otherwise responded to his

statement.

{¶20} Deputy Trifiletti had more seniority than Deputy Shaw but was not his supervisor.

The supervisor on duty at the time of the pursuit was Sergeant Robert Perkins. Sergeant Perkins

communicated with Deputy Shaw and the other deputies by radio as these events unfolded. The

sergeant testified that he ordered Deputy Shaw to terminate his pursuit immediately after Deputy

Trifiletti gave the same command. Deputy Trifiletti recalled hearing the sergeant’s order, but the

order was not captured on the recording of radio transmissions exchanged during the pursuit. It

was Deputy Shaw’s testimony that he never heard the sergeant’s order. Moreover, Sergeant

Perkins never heard Deputy Shaw say he was going to continue following the motorcycle.

According to Sergeant Perkins, “the radios were terrible” and he missed several radio

transmissions that evening.

{¶21} Deputy Shaw deactivated his cruiser’s lights and sirens after Deputy Trifiletti told

him to terminate the pursuit. He continued to follow Mr. Tancak westbound on State Route 82

and, eventually, northbound on State Route 57. Mr. Tancak lost control of his motorcycle at the

entrance ramp for State Route 20.

{¶22} Following the crash, Lieutenant Daniel Ashdown was assigned to review the

pursuit. His experience as an accident reconstructionist allowed him to calculate the average

speeds at which Deputy Shaw traveled before and after he deactivated his cruiser’s lights and
 10

sirens in response to Deputy Trifiletti’s directive. Between the time Deputy Shaw first activated

his lights and sirens and the time he received Deputy Trifiletti’s directive to terminate the pursuit,

his average speed fluctuated between 68 mph and 120 mph in 45-mph and 50-mph zones. Deputy

Trifiletti gave his directive at the intersection of State Route 82 and State Route 83. It took Deputy

Shaw ten seconds to reach the next intersection of State Route 82 and Giles Road. During those

ten seconds, his average speed was 118 mph. Another 42 seconds elapsed before he reached the

intersection of State Route 82 and Durkee Road, during which his average speed was still 105

mph. From that point until the crash occurred, Deputy Shaw’s average speed remained between

72 mph and 79 mph in 45-mph and 50-mph zones. Lieutenant Ashdown concluded Deputy Shaw

had continued to pursue Mr. Tancak after being told to terminate his pursuit and, in doing so, had

violated several standard operating procedures.

{¶23} It was Deputy Shaw’s testimony that, once he deactivated his lights and sirens, he

was no longer trying to stop Mr. Tancak. He was only “following at a safe distance in case they

crash[ed].” Deputy Shaw recalled being part of a pursuit during his training wherein a deputy

continued to follow a vehicle after a pursuit was terminated to render aid in the event of a crash.

The policies and procedures applicable to the Lorain County Sheriff’s Department at the time of

the pursuit also contained no clear directive requiring a deputy to stop his cruiser following the

termination of a pursuit. Nevertheless, several deputies and senior officers found fault with Deputy

Shaw’s decision to follow Mr. Tancak after the termination of the pursuit. Lieutenant Daniel

Ashdown testified Deputy Shaw should have returned to normal speeds after the pursuit was

terminated and violated his duties by continuing to follow Mr. Tancak in the manner he did. In a

report prepared after the incident, Sergeant Perkins wrote that Deputy Shaw should have slowed

his speed and returned to his detail after being advised to terminate. Likewise, in a report prepared
 11

in connection with Deputy Shaw’s grievance proceedings, Chief Deputy Dennis Cavanaugh wrote

that Deputy Shaw had committed several major offenses by continuing to pursue Mr. Tancak at

unsafe speeds after being told to terminate his pursuit. Although his termination was later

overturned on other grounds, Deputy Shaw’s conduct following the directive he received to

terminate his pursuit led to his termination from the department.

{¶24} As previously noted, the trial court found Deputy Shaw was “responding to an

emergency call” when he followed Mr. Tancak because he saw him speeding and officers have a

duty to apprehend reckless motorists. Mr. Bevelacqua set forth evidence, however, that Deputy

Shaw was directed to terminate his pursuit well before Mr. Tancak crashed and was disciplined

for his failure to do so.2 Moreover, by his own admission, Deputy Shaw was no longer attempting

to stop Mr. Tancak for speeding once he deactivated his lights and sirens. He indicated he was

only following the motorcycle to be of assistance in the event of a crash. His actions at that point

were, therefore, divorced from any duty to apprehend a reckless motorist. At best, they could be

perceived as a call to duty to serve a community care-taking function. See generally Smith, 130

Ohio St.3d 51, 2011-Ohio-4674, at ¶ 44, fn.5 (“[E]ven when an officer is not on an emergency

run, he may still be responding to a call to duty and thus be acting under a professional obligation

to respond.”). Given that Deputy Shaw was terminated for his actions,

2
The record is not clear as to whether Deputy Shaw received an “order” to terminate. Sergeant
Perkins testified he issued an order, and Deputy Trifiletti recalled hearing that order. The order
was not captured on the recording of radio transmissions exchanged during the pursuit, however,
and Deputy Shaw testified he never heard that order. Deputy Shaw indicated he terminated his
pursuit based on the directive he received from Deputy Trifiletti, who was not acting in a
supervisory capacity. We need not resolve this conflict in the evidence to decide the appeal.
Accordingly, we take no position on the issue of whether Deputy Shaw received an “order” from
a superior as opposed to a directive from a colleague. At the very least, Mr. Bevelacqua showed
the deputy received a directive to terminate. Accordingly, this Court refers to the command he
received as a “directive” rather than “order.”
 12

however, reasonable minds could differ as to whether he acted in a manner “required by [his]

professional obligation.” Colbert, 99 Ohio St.3d 215, 2003-Ohio-3319, at syllabus. See also

Brown v. Cuyahoga Falls, 9th Dist. Summit No. 24914, 2010-Ohio-4330, ¶ 14-16 (genuine issues

of material fact remained as to whether officer was responding to an emergency call where officer

unilaterally decided to respond to scene without activating lights and sirens or being ordered to do

so). Mr. Bevelacqua set forth evidence of a triable issue regarding Lorain County and Columbia

Township’s ability to prove Deputy Shaw was responding to an emergency call, and therefore, to

avail themselves of the immunity protections set forth in R.C. 2744.02(B)(1)(a). Accordingly, the

trial court erred when it awarded summary judgment to Lorain County and Columbia Township.

Mr. Bevelacqua’s first assignment of error is sustained on that basis.

ASSIGNMENT OF ERROR II

THE LOWER COURT ERRED IN DETERMINING THERE IS NO QUESTION
OF FACT AS TO THE WILLFUL, WANTON, AND/OR RECKLESS
MISCONDUCT OF APPELLEE SHAW.

{¶25} In his second assignment of error, Mr. Bevelacqua argues the trial court erred in its

summary judgment determination because the evidence showed Deputy Shaw was engaging in

willful, wanton, and/or reckless misconduct when his actions caused Mr. Tancak to lose control of

his motorcycle. Because the foregoing standards are not interchangeable and different tests apply

when a court determines whether a political subdivision or an employee of a political subdivision

is immune from suit, we begin by outlining the applicable law.

Political Subdivision Immunity

{¶26} As previously noted, a three-tiered analysis applies when a court is determining

whether a political subdivision is immune from liability. Hortman, 110 Ohio St.3d 194, 2006-

Ohio-4251, at ¶ 9. Comprehensive immunity enjoyed under the first tier of the analysis may be
 13

abrogated under the second tier if an exception to immunity applies. Shalkhauser, 148 Ohio

App.3d at 46, citing R.C. 2744.02(B). A political subdivision then may seek to establish either a

full defense to liability under the second tier of the analysis, see R.C. 2744.02(B)(1)(a)-(c), or an

enumerated defense under the third tier of the analysis, see R.C. 2744.03(A). If the political

subdivision succeeds in establishing either defense, it will be immune from suit. See McConnell,

158 Ohio St.3d 388, 2019-Ohio-4740, at ¶ 22-23; Moss, 2014-Ohio-969, at ¶ 10.

Employee Immunity

{¶27} When considering an individual employee’s claim of immunity, courts “do not

apply the same three-tiered analysis used to determine political subdivision immunity * * *.”

Fisher v. Ahmed, 9th Dist. Summit No. 29340, 2020-Ohio-1196, ¶ 25. Instead, courts must look

directly to R.C. 2744.03(A)(6). Cramer, 113 Ohio St.3d 266, 2007-Ohio-1946, at ¶ 17. Relevant

to this appeal, that statute provides immunity to individual employees of a political subdivision

“unless * * * [their] acts or omissions were with malicious purpose, in bad faith, or in a wanton or

reckless manner * * *.” R.C. 2744.03(A)(6)(b). “Wanton misconduct is the failure to exercise

any care toward those to whom a duty of care is owed in circumstances in which there is great

probability that harm will result.” Anderson v. Massillon, 134 Ohio St.3d 380, 2012-Ohio-5711,

paragraph three of the syllabus. “Reckless conduct is characterized by the conscious disregard of

or indifference to a known or obvious risk of harm to another that is unreasonable under the

circumstances and is substantially greater than negligent conduct.” Id. at paragraph four of the

syllabus.

Lorain County and Columbia Township

{¶28} As previously noted, Lorain County and Columbia Township sought to retain their

cloak of immunity by establishing the full defense to immunity set forth in R.C. 2744.02(B)(1)(a).
 14

That full defense applied if, at the time Deputy Shaw operated his police cruiser, he (1) was a

member of a police agency, (2) who was responding to an emergency call, and (3) who operated

his cruiser in a manner that “did not constitute willful or wanton misconduct * * *.” R.C.

2744.02(B)(1)(a). Mr. Bevelacqua’s second assignment of error concerns the third part of that

defense. The trial court found reasonable minds could only conclude Deputy Shaw did not engage

in any willful or wanton misconduct. Mr. Bevelacqua argues the trial court erred in its

determination because genuine issues of material fact remain as to whether the deputy engaged in

willful or wanton misconduct.

{¶29} With respect to Lorain County and Columbia Township, the question of whether

Deputy Shaw engaged in willful or wanton misconduct only becomes relevant if he was

responding to an emergency call. See R.C. 2744.02(B)(1)(a). That is because, if he was not

responding to an emergency call, R.C. 2744.02(B)(1)(a) would not apply. In that instance, Mr.

Bevelacqua would only need to show Deputy Shaw acted negligently when he operated his police

cruiser. See R.C. 2744.02(B)(1). We have already determined genuine issues of material fact

remain as to whether Deputy Shaw was responding to an emergency call. See Discussion of

Assignment of Error One, supra. Any opinion this Court offered on the issue of whether Deputy

Shaw engaged in willful or wanton misconduct would be purely advisory with respect to Lorain

County and Columbia Township. Accordingly, we decline to address that aspect of Mr.

Bevelacqua’s assignment of error. See Brown, 2010-Ohio-4330, at ¶ 17.

Deputy Shaw

{¶30} Deputy Shaw was immune from suit “unless * * * [his] acts or omissions were with

malicious purpose, in bad faith, or in a wanton or reckless manner * * *.” R.C. 2744.03(A)(6)(b).

Mr. Bevelacqua argues genuine issues of material fact remain as to whether the deputy acted in a
 15

wanton or reckless manner. Upon review, however, this Court cannot address his argument. A

review of the record reveals the trial court employed the incorrect legal standard when analyzing

Deputy Shaw’s immunity defense.

{¶31} In its judgment entry disposing of Mr. Bevelacqua’s claims against Deputy Shaw,

the trial court outlined the three-tiered analysis applicable to political subdivisions and wrote:

“This Court must embark on the same three tier analysis in this case, involving an employee of a

political subdivision.” The trial court then proceeded to analyze whether Deputy Shaw was a

member of a police department, whether he was responding to an emergency call, and whether he

engaged in willful or wanton misconduct. See R.C. 2744.02(B)(1)(a). The trial court did not

reference R.C. 2744.03(A)(6) in its decision. Because Deputy Shaw was an employee of a political

subdivision, however, the test set forth in R.C. 2744.03(A)(6) was the only test applicable to him.

See Cramer, 113 Ohio St.3d 266, 2007-Ohio-1946, at ¶ 17; Fisher, 2020-Ohio-1196, at ¶ 25.

Relevant to this appeal, he was entitled to immunity for his actions or omissions unless they were

wanton or reckless. See R.C. 2744.03(A)(6)(b).

{¶32} This Court declines to consider the evidence presented in the lower court within the

context of R.C. 2744.03(A)(6) in the first instance. Our independent consideration of the record

cannot “cure the trial court’s failure to conduct its own initial examination of the evidence in

compliance with Civ.R. 56.” Guappone v. Enviro-Cote, Inc., 9th Dist. Summit No. 24718, 2009-

Ohio-5540, ¶ 11. “Were we to consider this matter, applying the appropriate law in the first

instance, our decision would constitute a ruling on the motions for summary judgment in the first

instance as well, effectively depriving the non-prevailing party of appellate review.” Id. at ¶ 13.

With respect to Deputy Shaw, this matter must be remanded for the trial court to apply the correct
 16

law in the first instance. See id. Thus, Mr. Bevelacqua’s second assignment of error is sustained

insofar as it pertains to the trial court’s ruling in favor of Deputy Shaw.

ASSIGNMENT OF ERROR III

THE LOWER COURT ERRED HOLDING THAT APPELLEE SHAW’S
ACTIONS AND/OR CONDUCT WAS NOT A PROXIMATE CAUSE OF THE
MOTORCYCLE CRASH AND THAT THE SOLE PROXIMATE CAUSE OF
THE MOTORCYCLE CRASH WAS DUE TO APPELLEE TANCAK’S
CONDUCT.

{¶33} In his third assignment of error, Mr. Bevelacqua argues the trial court erred when

it found Lorain County, Columbia Township, and Deputy Shaw were entitled to summary

judgment because Mr. Tancak’s conduct was the sole proximate cause of the motorcycle crash that

claimed Ms. Bevelacqua’s life. Upon review, we must conclude Mr. Bevelacqua’s third

assignment of error is premature.

{¶34} Although the trial court found Lorain County, Columbia Township, and Deputy

Shaw statutorily immune from suit, it went on to consider the issue of proximate cause. The trial

court found the political subdivisions and Deputy Shaw were entitled to summary judgment

because the deputy did not proximately cause Ms. Bevelacqua’s injuries and death. According to

the trial court, reasonable minds could only conclude Mr. Tancak “was the sole proximate cause

of Sarah Bevelacqua’s passing.” It is Mr. Bevelacqua’s position that genuine issues of material

fact remain for trial on the issue of proximate cause.

{¶35} “[S]tatutory immunity is a separate question from [a] plaintiff’s ability to establish

the elements of his or her claim[s].” Argabrite v. Neer, 149 Ohio St.3d 349, 2016-Ohio-8374, ¶

10. Statutory immunity is an affirmative defense. Supportive Solutions, L.L.C. v. Electronic

Classroom of Tomorrow, 137 Ohio St.3d 23, 2013-Ohio-2410, ¶ 17. If proven, it allows a political

subdivision or its employees “to avoid liability regardless of whether the [plaintiff] [can] prove the
 17

elements of the underlying claims.” Elias v. City of Akron, 9th Dist. Summit No. 29107, 2020-

Ohio-480, ¶ 14. Thus, proximate cause only becomes relevant if a political subdivision or its

employee is not statutorily immune from liability.

{¶36} As previously noted, the trial court applied the incorrect law to determine whether

Deputy Shaw is statutorily immune from suit. See Discussion of Assignment of Error Two, supra.

Accordingly, it is not yet clear whether the deputy is immune from liability. Moreover, genuine

issues of material fact remain as to whether Lorain County and Columbia Township may avail

themselves of their immunity defense. See Discussion of Assignment of Error One, supra. If

Lorain County, Columbia Township, and/or Deputy Shaw are ultimately found to be statutorily

immune from suit that immunity would allow them to “avoid liability regardless of whether [Mr.

Bevelacqua] can prove [proximate cause].” Elias at ¶ 14. This Court takes no position on the

ultimate question of Lorain County, Columbia Township, and Deputy Shaw’s immunity. It is

merely our conclusion that, at this juncture, any ruling we might issue on the proximate cause

aspect of Mr. Bevelacqua’s underlying claims would be premature. For that reason, we decline to

address the merits of Mr. Bevelacqua’s third assignment of error.

ASSIGNMENT OF ERROR IV

THE LOWER COURT ERRED IN HOLDING APPELLEE LORAIN COUNTY
BOARD OF COMMISSIONERS IS ENTITLED TO SUMMARY JUDGMENT
PURSUANT TO MCCONNELL V. DUDLEY ON THE CLAIM OF
NEGLIGENT RETENTION.

{¶37} In his fourth assignment of error, Mr. Bevelacqua argues the trial court erred when

it found Lorain County was entitled to summary judgment on his claim of negligent retention.

Specifically, he argues the trial court erred as a matter of law when it found there is no exception

to political subdivision immunity for a claim of negligent retention. We do not agree.
 18

{¶38} This Court reviews a trial court’s interpretation of a statute de novo. Sliwinski v.

Village at St. Edward, 9th Dist. Summit No. 24967, 2010-Ohio-3006, ¶ 11. “When construing a

legislative enactment, * * * [a court must] begin with the plain language of the statute.” State ex

rel. Horizon Science Academy of Lorain, Inc. v. Ohio Dept. of Edn., 164 Ohio St.3d 387, 2021-

Ohio-1681, ¶ 14. “[I]f the meaning of the statute is unambiguous and definite, further

interpretation is not necessary and a court must apply the statute as written.” Frye v. Am. Honda

Motor Co., Inc., 9th Dist. Lorain No. 20CA011641, 2022-Ohio-878, ¶ 7.

{¶39} The comprehensive immunity a political subdivision enjoys under R.C. 2744.02(A)

may only be abrogated pursuant to the exceptions established in R.C. 2744.02(B). Pursuant to

R.C. 2744.02(B)(1), a political subdivision may be liable for damages caused by an employee’s

negligent operation of a motor vehicle. R.C. 2744.02(B)(1). The Supreme Court has held,

however, that the statute “does not impose liability on a political subdivision for violating a duty

in hiring, training, or supervising a police officer who is subsequently involved in an accident

during a high-speed pursuit of suspects.” McConnell v. Dudley, 158 Ohio St.3d 388, 2019-Ohio-

4740, at ¶ 32. That is because the statute’s plain language makes clear “that the political

subdivision’s liability depends on the employee’s actions in driving the vehicle * * *.” (Emphasis

sic.) Id. at ¶ 29. “Nothing in the plain language of [the] statute provides an additional exception

that imposes liability on the political subdivision for its actions in hiring, training, or supervising

an employee or entrusting him or her with a vehicle * * *.” Id. at ¶ 30.

{¶40} Citing McConnell, the trial court found Lorain County was entitled to summary

judgment on Mr. Bevelacqua’s claims of negligent hiring, training, and retention. Mr. Bevelacqua

acknowledges McConnell is dispositive of his claims for negligent hiring and training. He argues

the case should not be applied to his claim of negligent retention because McConnell did not
 19

address negligent retention. Mr. Bevelacqua asks this Court to review the issue as a matter of first

impression.

{¶41} Although the Supreme Court did not have cause to consider a claim of negligent

retention in McConnell, its reasoning applies with equal force to Mr. Bevelacqua’s claim for the

same. A claim of negligent retention requires proof of an “‘employer’s negligence in * * *

retaining the employee as the proximate cause of plaintiff’s injuries.’” (Emphasis added.) Zanni

v. Stelzer, 9th Dist. Lorain No. 07CA009108, 2007-Ohio-6215, ¶ 8, quoting Collins v. Flowers,

9th Dist. Lorain No. 04CA008594, 2005-Ohio-3797, ¶ 32. It does not arise from an employee’s

actions in negligently operating a motor vehicle. See McConnell at ¶ 29. “[N]egligence (or

reckless, wanton, or willful conduct) in [retaining an employee] does not fall within the plain

language of any of the exceptions established by R.C. 2744.02(B)(1) through (5).” Id. at ¶ 30.

Nor has Mr. Bevelacqua offered any authority standing for the proposition that R.C. 2744.02(B)

applies to a claim of negligent retention. See App.R. 16(A)(7). Upon review, we cannot conclude

the trial court erred by relying on McConnell and awarding summary judgment to Lorain County

on Mr. Bevelacqua’s claim of negligent retention. As such, his fourth assignment of error is

overruled.

III.

{¶42} Mr. Bevelacqua’s first assignment of error is sustained. His second assignment of

error is sustained insofar as it pertains to Deputy Shaw, but this Court declines to address the

remainder of that assignment of error on its merits. Likewise, this Court declines to address the

merits of Mr. Bevelacqua’s third assignment of error. His fourth assignment of error is overruled.

The judgment of the Lorain County Court of Common Pleas is affirmed in part, reversed in part,

and the cause is remanded for further proceedings consistent with the foregoing opinion.
 20

Judgment affirmed in part,
reversed in part,
and cause remanded.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period

for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to

mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the

docket, pursuant to App.R. 30.

Costs taxed equally to both parties.

THOMAS A. TEODOSIO
FOR THE COURT

CARR, J.
CALLAHAN, J.
CONCUR.
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APPEARANCES:

HENRY W. CHAMBERLAIN, Attorney at Law, for Appellant.

CHRISTOPHER M. DEVITO, Attorney at Law, for Appellant.

FRANK H. SCIALDONE and KATHLEEN M. MINAHAN, Attorneys at Law, for Appellee.

MEL L. LUTE, JR., Attorney at Law, for Appellee.

ANDREW N. YOSOWITZ, Attorney at Law, for Appellee.

JUSTIN TANCAK, pro se, Appellee.