Jones v. Soto

[Cite as Jones v. Soto, 2023-Ohio-3107.]

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

MALCOLM JONES, et al. C.A. No. 22CA011870

Appellees

v. APPEAL FROM JUDGMENT
ENTERED IN THE
EDWIN SOTO, et al. COURT OF COMMON PLEAS
COUNTY OF LORAIN, OHIO
Appellants CASE No. 21CV203168

DECISION AND JOURNAL ENTRY

Dated: September 5, 2023

STEVENSON, Judge.

{¶1} Edwin Soto and Orlando Colon appeal from the judgment of the Lorain County

Court of Common Pleas denying their motion for summary judgment. For the following reasons,

this Court reverses.

I.

Background

{¶2} This appeal arises out of an April 13, 2019, motor vehicle accident between a

vehicle in which Malcom Jones and Yesenia Rodriguez (“Appellees”) were riding as passengers

and a vehicle driven by non-party J.D. At the time of the accident, Officer Edwin Soto and

Sergeant Orlando Colon (collectively the “Officers”1) were following J.D.’s vehicle due to

suspected criminal activity.

1
This Court notes that Sergeant Colon testified during his deposition that he is no longer
employed with the Lorain Police Department.
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{¶3} Appellees filed a complaint against the Officers who, at all relevant times, were

employed by the Lorain Police Department. Appellees alleged that the Officers:

engaged in and participated in a high-speed dangerous police chase of [J.D.], who
was a suspect for a non-violent crime, and pursued him off the paved roadway of
E. 29th Street, across a large open grassy field located in a residential area where
may people live including children and senior citizens, and then back onto the
paved roadway on the other side of E. 29th Street.

Appellees alleged that J.D. “emerged from the large open grassy field at a high rate of speed and

was being chased by [the Officers]” when J.D. lost control of his vehicle and struck their vehicle,

causing injury.

{¶4} Appellees further alleged the Officers were not entitled to R.C. 2744.03 immunity

because:

they were engaged in wanton and/or reckless conduct in pursuing a non-violent
suspect in a high-speed chase through a residential area, off the roadway, and across
an open grassy field located in a residential area at excessive speeds.

Discovery followed and the Officers were deposed.

Summary Judgment Motions

{¶5} The Officers filed a motion for summary judgment on April 13, 2022, arguing they

were entitled to immunity under R.C. 2744.03. The Officers indicated in their motion that (1) they

were not in a vehicular pursuit at the time J.D. crashed into Appellees, and (2) even if they were

in a vehicular pursuit, they did not act recklessly or wantonly under the factors set forth in Hoffman

v. Gallia Cty. Sheriff’s Office, 4th Dist. Gallia No. 17CA2, 2017-Ohio-9192, ¶ 49. The Officers

also argued they had probable cause to conduct a traffic stop because J.D. was driving without a

valid driver’s license; they had reasonable suspicion that J.D. was driving while impaired because

they observed J.D. swerving in the roadway even before J.D. became aware they were following

him, and because J.D. was involved in recent gang-related shootings.
 3

{¶6} In support of their motion, the Officers attached numerous documents, including:

(1) the transcripts of their depositions; (2) their affidavits wherein they averred, in part, that they

did not see any pedestrians during the incident, and that they “terminated the vehicular pursuit in

favor of following [J.D.] using lights and sirens in an effort to warn citizens on the other side of

the grass field[;]” (3) a report from an accident reconstructionist indicating, among other things,

that J.D. was traveling 64 m.p.h. when he crashed into Appellees’ vehicle, that about 31 seconds

elapsed from the time the Officers radioed dispatch regarding a fleeing vehicle until they radioed

dispatch regarding the crash, and that the length of the field was about 589 feet; (4) Appellees’

answers to interrogatories wherein Appellees indicated that the Officers acted recklessly and/or

wantonly because they were “chasing [J.D.] across an open field located in a residential area at a

high rate of speed”; and, (5) a copy of the Lorain Police Department’s policy regarding vehicular

pursuits.

{¶7} Appellees filed a memorandum in opposition to the Officers’ motion for summary

judgment. Appellees argued the Officers were engaged in a high-speed pursuit and that the Officers

acted wantonly or recklessly under the factors set forth in Hoffman, supra. In support of their

memorandum in opposition, Appellees attached an affidavit from Mario Rodriguez-Baez, the

driver of the vehicle in which they were riding as passengers, who is not a party to their lawsuit,

and an affidavit from Ms. Rodriguez. In their affidavits, the driver and Ms. Rodriguez restated the

general, conclusory allegations made in their complaint, averring they saw the Officers “following

[J.D.’s] car very closely out of the field and [the Officers’] SUV was also traveling at a fast and

unsafe rate of speed.” Appellees also attached the affidavit and report of Dr. Michael D. Lyman,

who opined the Officers violated the departmental pursuit policy.
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{¶8} In their reply, the Officers argued Appellees’ averments are “merely allegations

previously made in [Appellees’] Complaint, and do[] not in any way refute, rebut, or otherwise

qualify the stated speed (20-35 MPH) in which [they] have consistently provided as being their

traveling speed across the grassy field.”

Summary Judgment Evidence

Deposition of Sergeant Orlando Colon

{¶9} Sergeant Colon testified, on April 13, 2019, he was riding in an unmarked SUV

with Officer Soto. While on duty, Sergeant Colon saw a known gang member, J.D., driving a black

Honda Civic. Sergeant Colon knew J.D. did not have a valid driver’s license because he “had just

made intelligence bulletins about [J.D.]” and other known gang members. Further, Sergeant Colon

had reasonable suspicion to believe J.D. had been involved in a gang-related shooting earlier that

morning, and thought J.D. was likely armed.

{¶10} Sergeant Colon told Officer Soto to follow J.D.’s vehicle. Sergeant Colon then

observed J.D.’s vehicle speeding and swerving in the roadway. Sergeant Colon observed J.D.

“riding the car in front of him’s (sic) bumper, and * * * swerving from side to side behind that car

in an aggressive manner.”

{¶11} When the Officers caught up to J.D.’s vehicle, they decided to initiate a traffic stop

and activated the SUV’s lights and sirens. According to Sergeant Colon, J.D. looked surprised

and began to slowly pull to the side of the road while reaching for something underneath the

driver’s seat, which Sergeant Colon described as “furtive movements.”

{¶12} J.D. pulled onto a dead-end street, and he “gunned it * * * [p]edal to the metal

acceleration, literal smoke coming out of the back tires from the back of [J.D.’s] car as he did so.”

Because it was a dead-end street, Sergeant Colon thought J.D. was going to abandon his vehicle
 5

and run into a house at the end of the street. At this point, J.D. was far ahead of the Officers.

Sergeant Colon testified that the Officers were not in an active vehicular pursuit of J.D. when they

turned down the dead-end street.

{¶13} Once the Officers got “a little bit further up the block,” Sergeant Colon observed

J.D. drive onto a grassy field. By the time the Officers arrived at the field, J.D.’s vehicle was

“already almost across the field[.]” Sergeant Colon testified that J.D’s vehicle was “skidding back

and forth across the field[.]”

{¶14} The Officers proceeded across the grassy field “very slowly.” The Officers kept

the SUV’s lights and sirens activated to alert people of the approaching vehicles. The Officers

were still in the grassy field when J.D.’s vehicle crashed into the vehicle in which Appellees were

riding as passengers. Because the Officers were so far back, Sergeant Colon did not see J.D. hit a

car.

Deposition of Officer Edwin Soto

{¶15} Officer Soto testified that on April 13, 2019, he was driving an unmarked SUV with

Sergeant Colon riding as a passenger. Sergeant Colon recognized J.D., a known gang member, as

the driver of a vehicle. Because Sergeant Colon knew J.D. did not have a valid driver’s license

and was probably armed, Officer Soto and Sergeant Colon followed J.D.’s vehicle. J.D. began

driving “all over the road[,]” and J.D. did not pull over when Officer Soto activated the SUV’s

lights and sirens. Officer Soto observed J.D.’s vehicle swerving and J.D. “lunging underneath the

front seat.”

{¶16} Officer Soto observed J.D. accelerate down a dead-end street. Because it was a

dead-end street, Officer Soto anticipated J.D. was going to “bail out and run.” J.D., however,

instead turned and proceeded across a grassy field. Officer Soto estimated that J.D.’s vehicle
 6

traveled “70 plus” miles per hour across the field. Officer Soto testified the Officers were not in

an active vehicular pursuit when J.D. turned down the dead-end street.

{¶17} Officer Soto further testified the Officers “weren’t very close to [J.D.] at all” when

he turned and proceeded across the grassy field. Officer Soto testified that the SUV’s lights and

sirens were activated and that the Officers were traveling between 20 m.p.h. to 30 m.p.h. across

the field. Officer Soto did not traverse faster across the “grassy and uneven” field because he

“didn’t trust the [SUV] to make it all the way through without becoming disabled.” Officer Soto

testified that J.D.’s vehicle crashed before the Officers exited the field.

Affidavit of Sergeant Colon

{¶18} In support of their motion for summary judgment, the Officers also submitted the

affidavit of Sergeant Colon. The narrative report of the April 13, 2019, incident was drafted by

Sergeant Colon and is attached to his affidavit. Sergeant Colon states in his affidavit that, during

the incident, there “were approximately four vehicles in which [J.D.] drove erratically behind” and

that, “once [J.D.] passed those vehicles, [he] saw no other vehicles.” Sergeant Colon further states

in his affidavit that he saw no pedestrians during the entirety of the April 13, 2019, incident and,

consistent with his deposition testimony, that:

[u]pon seeing [J.D.] accelerate ‘pedal to the metal’ down E. 29th Street at a high
rate of speed, Officer Soto and I terminated the vehicular pursuit in favor of
following [J.D.] using lights and sirens in an effort to warn citizens on the other
side of the grass field.

Accident Reconstructionist Report

{¶19} The Officers also attached an accident reconstructionist report to their motion for

summary judgment. The accident reconstructionist opined that J.D. was traveling 64 m.p.h. when

he crashed into Appellees’ vehicle; that 31 seconds elapsed from the time the Officers radioed
 7

dispatch regarding a fleeing vehicle until they radioed dispatch regarding the crash, and; that the

length of the grassy field was about 589 feet.

{¶20} In addition to the deposition testimony, affidavit, and accident reconstructionist

report, the Officers attached Appellees’ answer to interrogatories, a Lorain police department

criminal intelligence bulletin, and a Lorain police department case report to their motion for

summary judgment.

Affidavits of Yesenia Rodriguez and Mario Rodriguez-Baez

{¶21} In support of their opposition to summary judgment, Appellees filed the affidavits

of Ms. Rodriguez and Mr. Rodriguez-Baez who were both inside the vehicle struck by J.D. The

nearly identical affidavits restate the conclusory allegations in Appellees’ complaint indicating the

Officers travelled “at a fast and unsafe rate of speed” in their pursuit of J.D.

Affidavit and Report of Dr. Michael D. Lyman

{¶22} The Appellees also filed the affidavit and report of Dr. Michael Lyman, an expert

on police practices and procedures, who opined the Officers were in “pursuit” of J.D., and their

actions were “reckless and unnecessary” because it violated Lorain Police Pursuit Policy 05.41.

Trial Court Decision

{¶23} The trial court denied the Officers’ motion for summary judgment. In so doing, the

trial court indicated Appellees “presented conflicting evidence by affidavit that [the Officers’]

SUV was traveling at a fast and unsafe speed and that they were traveling very closely behind

[J.D.] and that [the Officers’] vehicle was in ‘hot pursuit’ of [J.D.]” The trial court stated that the

Officers were not entitled to summary judgment because credibility determinations were necessary

to decide whether the Officers acted in a wanton or reckless manner.

{¶24} The Officers appealed, raising one assignment of error for this Court’s review.
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II.

ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED BY DENYING [THE OFFICERS’] MOTION
FOR SUMMARY JUDGMENT, AS OFFICERS ARE ENTITLED TO
IMMUNITY UNDER R.C. § 2744; THUS, THERE ARE NO GENUINE
ISSUES OF MATERIAL FACT, OFFICERS ARE ENTITLED TO
JUDGMENT AS A MATTER OF LAW, AND THIS HONORABLE COURT
MUST REVERSE THE TRIAL COURT’S DENIAL OF OFFICERS’
MOTION FOR SUMMARY JUDGMENT.

{¶25} In their sole assignment of error, the Officers argue the trial court erred in denying

them immunity, pursuant to R.C. 2744.03(A)(6), because they did not act in a reckless or wanton

manner as a matter of law. This Court agrees.

Standard of Review for Summary Judgment

{¶26} Appellate review of an award of summary judgment is de novo. 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

R.C. 2744.03(A)(6) – Immunity of Employees of Political Subdivision

{¶27} The Supreme Court of Ohio has stated “the burden necessary to deny immunity to

police officers is onerous.” Argabrite v. Neer, 149 Ohio St.3d 349, 2016-Ohio-8374, ¶ 31. As

such, “‘a police officer * * * cannot be held personally liable for acts committed while carrying

out his or her official duties unless one of the exceptions to immunity is established.’” Szefcyk v.

Kucirek, 9th Dist. Lorain No. 15CA010742, 2016-Ohio-171, ¶ 11, quoting Cook v. Cincinnati, 103

Ohio App.3d 80, 90 (1st Dist.1995). In this regard, R.C. 2744.03(A)(6) provides that an “employee

is immune from liability unless * * * (b) [t]he employee’s acts or omissions were with malicious

purpose, in bad faith, or in a wanton or reckless manner.” “These are rigorous standards that will

in most circumstances be difficult to establish, especially with respect to a law-enforcement officer

carrying out the statutory duty to arrest and detain a person violating the law.” Argabrite at ¶ 8,

citing R.C. 2935.03(A)(1). As the Argabrite Court further explained:

An officer’s role in our society creates a unique lens through which to view his or
her actions and through which to determine whether those actions may have been
malicious, in bad faith, wanton or reckless. We expect law-enforcement officers to
protect the public, but that expectation need not mean that an officer must sit idly
by while a suspect flees the scene of a crime, particularly when the suspect's flight
itself endangers the general public further. The danger of a high-speed chase alone
is not enough to present a genuine issue of material fact concerning whether an
officer has acted with a malicious purpose, in bad faith or in a wanton or reckless
manner.

(Internal citation omitted.) Id. at ¶ 16.

{¶28} As a preliminary matter, it is undisputed The City of Lorain is a political

subdivision of the State of Ohio and the Officers were employees of the Lorain Police Department

at the time of the accident. See R.C. 2744.01(F) (defining “political subdivision”); R.C.

2744.01(B) (defining “employees”). We further note there is no dispute the Officers were acting

within the course and scope of their employment when the accident occurred. The trial court
 10

recognized that, at all times, the Officers “took steps in an attempt to protect the public from the

actions of a suspect who they believed may have been involved earlier in a shooting” and the

Officers “were carrying out the statutory duty to arrest and detain a person violating the law.” As

such, the Officers met their burden to show they were entitled to statutory immunity.

Question of Law Presented

{¶29} “[A] party seeking to exercise a statutory exception bears the burden of

demonstrating that exception.” Huber v. State Farm Mut. Auto. Ins. Co., 9th Dist. Summit No.

29962, 2022-Ohio-3022, ¶ 55, citing State ex rel. Nat. Broadcasting Co., Inc. v. City of Cleveland,

38 Ohio St.3d 79, 83 (1988). Thus, our legal analysis focuses upon whether Appellees, the

nonmoving parties, met their burden of pointing to evidence in the record that creates a genuine

issue of material fact regarding whether the Officers acted in a wanton or reckless manner in order

to rebut the presumption of immunity to which they are statutorily entitled.

Definition of Wanton Misconduct

{¶30} The Supreme Court of Ohio has defined “wanton misconduct * * * [as] the failure

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

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

Ohio-5711, ¶ 33. Accord Hawkins v. Ivy, 50 Ohio St.2d 114 (1977), syllabus (“Where the driver

of an automobile fails to exercise any care whatsoever toward those to whom he owes a duty of

care, and his failure occurs under circumstances in which there is great probability that harm will

result, such failure constitutes wanton misconduct.”). See also Tighe v. Diamond, 149 Ohio St.

520, 526 (1948) (defining wanton misconduct as “an entire absence of all care for the safety of

others and an indifference to consequences”).
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{¶31} “A court that is determining whether a defendant engaged in wanton misconduct

thus essentially applies a two-part test.” Huber at ¶ 58. As this Court explained:

The first question is whether the defendant failed to exercise any care whatsoever
towards those to whom he owes a duty of care. This ‘requires that we determine
the duty [the defendant] owed [to the plaintiff], and also the extent of care’ that the
defendant exercised. The second question is whether the failure to exercise any
care created a great probability that harm will result. This requires courts to
‘consider the nature of the hazard created by the circumstances.’

(Internal citations omitted.) Id. Generally, “‘minimal efforts to warn [are] sufficient to overcome

the allegation of wanton misconduct.’” Id., citing Pisel v. Baking Co., 61 Ohio St.2d 142 (1980).

Definition of Reckless Conduct

{¶32} “Reckless conduct,” as defined by the Supreme Court of Ohio, 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.”

Anderson, 134 Ohio St.3d at 388. To be reckless, “‘[t]he actor must be conscious that his conduct

will in all probability result in injury.’” Chunyo v. Gauntner, 9th Dist. Summit No. 28346, 2017-

Ohio-5555, ¶ 9, quoting O’Toole v. Denihan, 118 Ohio St.3d 374, 2008-Ohio-2574, paragraph

three of the syllabus. “[A]n officer’s mere negligence in the performance of official duties does

not give rise to personal liability.” Hoffman, 4th Dist. Gallia No. 17CA2, 2017-Ohio-9192, at ¶ 37,

citing Fabrey v. McDonald Village Police Dept., 70 Ohio St.3d 351, 357 (1994).

Relevant Factors in Determining Wanton or Reckless Conduct

{¶33} This Court has adopted multiple factors, as set forth in Hoffman, supra, relevant to

determining whether a law enforcement officer operated a motor vehicle wantonly or recklessly.

See Anderson v. Westlake, 9th Dist. Lorain No. 19CA011512, 2021-Ohio-4582, ¶ 15; Huber at ¶

59. These factors include, but are not limited to:
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(1) the officer’s speed; (2) whether the officer was traveling in the correct lane of
travel; (3) whether the officer had the right-of-way; (4) the time of day; (5) the
weather; (6) the officer’s familiarity with the road; (7) the road contour and terrain;
(8) whether traffic was light or heavy; (9) whether the officer made invasive
maneuvers (i.e., attempting to force the vehicle from the road) or evasive
maneuvers (i.e., attempting to avoid a collision); (10) the nature and seriousness of
the offense that prompted the emergency; (11) whether the officer possessed a safer
alternative; (12) whether the officer admitted to disregarding the consequences of
his actions; (13) whether the officer activated the vehicle’s lights and siren[]; and
(14) whether the officer violated any applicable departmental policy.

Westlake at ¶ 15, citing Hoffman at ¶ 49. “No one factor is determinative; rather, we must instead

consider the totality of the circumstances surrounding the incident.” Huber at ¶ 59, citing Westlake

at ¶ 15.

{¶34} Further, as indicated by the Supreme Court of Ohio: “[t]he danger of a high-speed

chase alone is not enough to present a genuine issue of material fact concerning whether an officer

has acted with a malicious purpose, in bad faith or in a wanton or reckless manner.” Argabrite,

149 Ohio St.3d 349, 2016-Ohio-8374, at ¶ 16. See also Westlake at ¶ 36 (although the high-speed

pursuit reached speeds of up to 80 miles per hour, occurred at night, proceeded through

construction zones, school zones, and densely populated commercial and residential areas, and

where possible departmental policy violations occurred, this Court affirmed the granting of

summary judgment as the plaintiffs failed to meet their burden in showing that the individual

officers acted in a wanton or reckless manner).

The Hoffman Factors

{¶35} Here, according to the record, the Officers followed J.D. into a field during daylight

hours because he was a known gang member suspected of being involved in a shooting earlier that

day. J.D. began driving erratically prior to entering the field as the Officers drove behind his

vehicle. The Officers took no invasive or evasive action. Importantly, in order to prevent an
 13

accident, the Officers attempted to warn citizens of the potential dangers of J.D.’s erratic driving

by turning on their lights and sirens.

{¶36} Further, in considering the Hoffman factors, the evidence in the record establishes:

(1) the field had no posted speed limit; (2) J.D. took the pursuit off road where there was no correct

lane of travel or right of way; (3) the incident occurred during daylight hours, with no precipitation;

(4) Sergeant Colon was very familiar with the area and field, which allowed him to keep an eye

out for any pedestrians; (5) traffic was light in the area and no pedestrians were on the field; (6)

the Officers made no invasive or evasive maneuvers; (7) J.D. was a known gang member suspected

of being involved in a shooting earlier that day; (8) J.D. made furtive movements in the vehicle by

reaching his right hand under the seat; (9) J.D. was believed to be armed; (10) J.D. was driving

erratically while the Officers initially followed him at a low rate of speed, and J.D. was driving

without a driver’s license; (11) the Officers were far enough behind J.D. that they could not see

the crash and did not know J.D. hit another vehicle; (12) although Officer Soto admitted that he

did not take time to consider “that it might not be safe to drive across this field in a residential

area[,]” the Officers did not admit to disregarding the consequences of their actions or a known

risk; and (13) the Officers used their lights and sirens to warn individuals that J.D. was driving at

a high rate of speed across the field in an effort to prevent an accident. Further, the evidence

supports the fact that J.D. drove onto the field while the Officers were still a distance away, which

indicates J.D. did so on his own accord and was not chased onto the field by the Officers.

{¶37} Indeed, as indicated above, Appellees attempt to rebut the presumption of immunity

by attesting the Officers were traveling “at a fast and unsafe rate of speed.” This is a non-specific

conclusory restatement of the claims alleged in Appellees’ complaint and does not point to a

genuine issue of material fact to be litigated. See Estate of Henderson v. Henderson, 9th Dist.
 14

Lorain No. 18CA011301, 2018-Ohio-5264, ¶ 9 (recognizing that, for an affidavit to satisfy a non-

moving party’s reciprocal Dresher burden, the affidavit must point to a genuine issue of material

fact). See also Roth v. Tokar Tower Office. Condominiums Unit Owners’ Ass’n, Inc., 9th Dist.

Lorain No. 21CA011811, 2023-Ohio-279, ¶ 22, quoting Belknap v. Vigorito, 11th Dist. Trumbull

No. 2003-T-0147, 2004-Ohio-7232, ¶ 27 (“Allowing a non-moving party to avoid summary

judgment by submitting an affidavit containing nothing more than contradictions of the moving

party’s claims, ‘could enable the nonmoving party to avoid summary judgment in every case,

crippling the use of Civ.R. 56 as a means to facilitate the early assessment of the merits of claims,

pre-trial dismissal of meritless claims, and defining and narrowing issues for trial.’”). However,

even if the Officers had been travelling at a fast rate of speed, in pursuit of J.D., speed is just one

of many Hoffman factors to consider. Further, based upon this record and as indicated in Argabrite

speed alone does not create a genuine issue of material fact as to whether the Officers acted in a

wanton or reckless manner. Argabrite, 149 Ohio St.3d 349, 2016-Ohio-8374, at ¶ 16. As such, the

affidavits submitted by Appellees are deficient to meet Appellees’ reciprocal Dresher burden to

overcome the presumption of immunity. See Westlake, 9th Dist. Lorain No. 19CA011512, 2021-

Ohio-4582, at ¶ 36.

{¶38} Additionally, as to any potential policy violation, this Court has stated:

while a violation of departmental policy may be relevant to determining the
culpability of a course of conduct, it does not equate to per se recklessness.
Anderson at ¶ 37; Argabrite at ¶ 21. Evidence of a policy violation demonstrates
negligence, at best, unless there is evidence the actor has knowledge that his
“‘conduct will in all probability result in injury.’” Argabrite at ¶ 21, quoting
[O'Toole v. Denihan, 118 Ohio St.3d 374 (2008), paragraph three of the syllabus.]

Westlake at ¶ 31. Here, Appellees point to no evidence in the record showing the Officers had

knowledge their conduct in all probability would result in injury.
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{¶39} Thus, based upon the Hoffman factors and the totality of the circumstances,

including the Officers’ attempt to warn citizens of the potential danger of J.D.’s erratic driving,

the record does not support the Officers acted in a wanton or reckless manner. Accordingly, based

upon this Court’s de novo review, when reviewing the evidence and all reasonable inferences in a

light most favorable to Appellees, we conclude Appellees have not met their burden of pointing to

any evidence in the record that creates a genuine issue of material fact regarding whether the

Officers acted in a wanton or reckless manner in order to rebut the presumption of immunity to

which the Officers are statutorily entitled. Thus, because no exception to immunity applies, the

Officers are entitled to statutory immunity as a matter of law.

{¶40} Accordingly, the Officers’ sole assignment of error is sustained.

III.

{¶41} The Officers’ sole assignment of error is sustained. The judgment of the Lorain

County Court of Common Pleas is reversed, and the cause is remanded for proceedings consistent

with this opinion.

Judgment reversed,
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
 16

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 to Appellees.

SCOT STEVENSON
FOR THE COURT

SUTTON, P. J.
CONCURS.

FLAGG LANZINGER, J.
DISSENTING.

{¶42} I respectfully dissent from the majority opinion reversing the trial court’s order that

denied the Officers’ motion for summary judgment. While the trial court addressed the Hoffman

factors in its decision, it primarily denied the Officers’ motion for summary judgment on the basis

that the parties presented conflicting evidence as to the Officers’ speed while the Officers drove

through the field, as well as the proximity of the Officers’ SUV to J.D.’s vehicle. The affidavits

attached to Appellees’ brief in opposition to the Officers’ motion for summary judgment indicated

that the driver and Ms. Rodriguez saw the Officers driving through the field at a “fast and unsafe

rate of speed.” They also averred that they saw the Officers “following [J.D.’s] car very closely

out of the field and [the Officers’] SUV was also traveling at a fast and unsafe rate of speed.”

Thus, under Appellees’ version of the events, the Officers were speeding through a grassy, uneven

field in a residential area inhabited by children and elderly people in the middle of the day. The

Officers did this knowing (per Sergeant Colon’s deposition testimony) that people walk through
 17

that field during the day to get to retail stores. The Officers also did this while actively pursuing

J.D., who (according to the driver and Ms. Rodriguez’s affidavits) was also traveling at a fast and

unsafe speed, so much so that he lost control of his vehicle when he reentered the roadway. When

asked whether he “ever t[ook] the time to consider that it might not be safe to drive across this

field in a residential area[,]” Officer Soto responded: “No.”

{¶43} The averments in Appellees’ affidavits directly contradict the Officers’ version of

the events and necessarily affect at least one of the Hoffman factors, that is, the Officers’ speed.

See Hoffman v. Gallia Cnty. Sheriff’s Office, 4th Dist. Gallia No. 17CA2, 2017-Ohio-9192, ¶ 49.

Under the circumstances of this case, I would conclude that, at a minimum, the conflicting

evidence regarding the Officers’ speed and their proximity to J.D.’s vehicle while J.D. drove

through the field are genuine issues of material fact. In other words, viewing the evidence in a

light most favorable to Appellees, I would conclude that Appellees met their reciprocal summary-

judgment burden of establishing that a genuine issue of material fact exists as to whether the

Officers acted recklessly and/or wantonly under the circumstances presented in this case. See

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

{¶44} The majority opinion, however, erroneously views the evidence in a light most

favorable to the Officers. For example, the majority relies upon the Officers’ testimony that: (1)

they were driving at a slow rate of speed; (2) they were far enough behind J.D. that they did not

even see the crash; and (3) they were not in an active vehicular pursuit, which would have triggered

their obligation to follow policies and guidelines regarding vehicular pursuits. The majority

concludes that, even if the Officers engaged in a high-speed pursuit of J.D., the Officers did not

engage in reckless or wanton conduct. I disagree.
 18

{¶45} Far less concerning conduct, albeit in the context of reckless operation of a vehicle

under R.C. 4511.20, has been found to be willful and/or wanton conduct. See, e.g., State v. Tudor,

11th Dist. Portage No. 2018-P-0018, 2019-Ohio-24, ¶ 13 (upholding the defendant’s conviction

under R.C. 4511.20 because the defendant “was operating his bicycle for periods of time with no

hands on the handle bars while holding a cup in one hand and on a commercial street with traffic,

parked cars, and pedestrians present.”); City of Cleveland v. Davis, 8th Dist. Cuyahoga No.

107138, 2019-Ohio-543, ¶ 21 (“Either driving between traffic lanes or driving with an open car

door could constitute a willful or wanton disregard for the safety of persons [for purposes of R.C.

4511.20].”); Brunswick v. Bilski, 71 Ohio App.3d 557 (9th Dist.1991) (abruptly stopping a vehicle

in a lane of traffic in response to another motorist’s sounding of her horn after being cut off by the

first driver constitutes wanton and willful conduct for purposes of R.C. 4511.20). I acknowledge

the unique position of police officers and the importance of governmental immunity on their ability

to perform their jobs, but that immunity is not limitless. While a fact finder might ultimately

believe the Officers’ version of the events and/or determine that the underlying conduct does not

amount to reckless or wanton conduct, I would hold the trial court did not err by declining to do

so at the summary-judgment stage in this case. This is especially so considering that “[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.” See Jacobson v. Akron Children’s Hosp., 9th Dist. Summit No. 30188,

2023-Ohio-2225, ¶ 11, citing Perez v. Scripps-Howard Broadcasting Co., 35 Ohio St.3d 215, 218

(1988); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (“Credibility determinations,

the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury

functions, not those of a judge,” when ruling on a motion for summary judgment). Here, the
 19

majority erroneously resolves all competing inferences and questions of credibility in favor of the

moving party: the Officers.

{¶46} Additionally, the majority erroneously discounts the affidavits Appellees submitted

in support of their brief in opposition to the Officers’ motion for summary judgment, categorizing

them as general and conclusory. But aside from affidavits from witnesses to the events, it is

unclear what evidence, if any, Appellees could have submitted to create a genuine issue of material

fact in this case. Moreover, Appellees submitted an expert report from an expert who opined that

the Officers engaged in reckless conduct based upon Appellees’ version of the events, which the

majority fails to acknowledge. Here, I would conclude that Appellees’ affidavits, combined with

their expert report, pointed to genuine issues of material fact that precluded summary judgment.

{¶47} Moreover, the case law the majority relies upon does not warrant a different

conclusion. For example, the majority relies upon this Court’s prior decision in

Anderson v. Westlake, 9th Dist. Lorain No. 19CA011512, 2021-Ohio-4582. There, this Court

affirmed the decision of the trial court, which granted the officers’ motion for summary judgment

on the basis that no genuine issue of material fact existed as to whether the officers acted recklessly

during a high-speed chase that resulted in a collision that injured several third parties. Id. at ¶ 3,

4, 37. There, unlike here, the parties did not dispute the facts surrounding the pursuit. For example,

the officers acknowledged that they engaged in a high-speed pursuit, and dashcam video

corroborated some of their version of the events. See, e.g., id. at ¶ 18, 19, 20, 25, 35, 41 (citing

the dashcam videos). The issue was simply whether those actions amounted to reckless conduct

under R.C. 2744.03(A)(6). See id. at ¶ 13, 27. Here, the Officers denied engaging in a vehicular

pursuit, there was no dashcam video of the incident to corroborate their version of the events, and

the Officers’ actions themselves are in dispute.
 20

{¶48} The majority also relies upon Huber v. State Farm Mut. Auto Ins. Co., 9th Dist.

Summit No. 29962, 2022-Ohio-3022. That case also addresses reckless and wanton conduct in

the context of summary judgment in a governmental immunity case. That decision, however,

likewise does not support the majority’s position. There, eyewitness affidavits, dashcam video

(albeit limited), and “Event Data Recorder” data from the police officer’s cruiser corroborated the

officer’s version of the events. Id. at ¶ 27-44. Unlike here, the plaintiff in Huber “did not present

any affidavits or witness testimony in support of his opposition to summary judgment.” Id. at ¶ 6.

Huber is distinguishable from the instant case and does not warrant a different conclusion.

{¶49} Having reviewed the record, I would conclude that Appellees met their reciprocal

summary-judgment burden of establishing that genuine issues of material fact remain to be

litigated. I, therefore, would conclude that the trial court did not err as a matter of law when it

denied the Officers’ motion for summary judgment. Accordingly, I respectfully dissent.

APPEARANCES:

PATRICK D. RILEY, Law Director, and JOSEPH T. LAVECK, Assistant Law Director, for
Appellants.

R. CRAIG MCLAUGHLIN, Attorney at Law, for Appellees.