Robinson v. Cleveland

[Cite as Robinson v. Cleveland, 2024-Ohio-969.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

MALIK D. ROBINSON, ET AL., :
No. 112798
Plaintiffs-Appellees, :

v. :

CITY OF CLEVELAND, ET AL. :

Defendants-Appellants. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED AND REMANDED
RELEASED AND JOURNALIZED: March 14, 2024

Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-22-961601

Appearances:

Kats Law, LLC, Brian P. Scherf, and Sergey K. Kats, for
appellees.

Mark D. Griffin, Cleveland Director of Law, William M.
Menzalora, Assistant Director of Law, and Affan Ali,
Assistant Director of Law, for appellants.

MARY EILEEN KILBANE, J.:

Defendant-appellant City of Cleveland police officer Darrin Hunt

(“Hunt”) and defendant-appellant the City of Cleveland (“the city”) (collectively “the

defendants”) appeal the trial court’s denial of their motion for summary judgment
filed against plaintiffs-appellees Malik Robinson (“Robinson”) and Michael T. Jones

(“Jones”). For the following reasons, we affirm and remand for further proceedings.

Factual and Procedural History

This case stems from an automobile accident on April 5, 2020, that

involved Hunt’s police car and Jones’s vehicle at the intersection of Cedar Avenue

and East 71st Street in Cleveland, Ohio. At the time of the accident, Robinson was

driving Jones’s 2008 Volvo SUV westbound on Cedar Avenue, with Jones as a

passenger, and Hunt was driving his police car northbound on East 71st Street, in

the course and scope of his employment with the Cleveland Division of Police.

Robinson testified that he drove 35 miles per hour as he entered the

intersection of East 71st Street on a green light. Robinson testified that he observed

a police car traveling northbound on East 71st Street stopped at the intersection due

to the red light. The police car did not have sirens or emergency lights engaged.

Robinson testified that as the Volvo SUV entered the intersection, it was struck by

the police officer’s vehicle:

We was like just crossing into the intersection. It happened so fast. As
soon as we crossed into the intersection, it was just like boom, but we
had the right-of-way, green light, the whole time, never had a red light.

Robinson, tr. 18. Jones testified that as the Volvo drove through the intersection,

“the police officer just sped through the light and ripped off the front of the truck.”

Jones, tr. 15. Jones was unable to state the speed Robinson was traveling at the time

of the accident. Jones testified that he did not know if the police car was stopped at

the traffic light, and he could not state when he first observed the police car.
 At the time of the accident, Hunt was a two-year veteran of the

Cleveland Division of Police.1 Hunt testified that he was traveling northbound on

East 71st Street in response to an automobile accident but he could not recall the

address where he was headed. Hunt testified that he had a red light at the

intersection of Cedar Avenue and East 71st Street and conceded he had not engaged

his emergency lights or sirens prior to entering the intersection. Hunt testified that

he scanned the intersection by looking to the left, to the right, and straight ahead

“but obviously, [he] didn’t look good [sic] enough.” Hunt, tr. 11.

Hunt testified that he should have had his emergency lights engaged

prior to entering the intersection on a red light, and he stated he did not initiate his

emergency lights because he “quickly scanned [the] intersection.” Hunt, tr. 11. Hunt

testified that his actions caused the automobile accident and there were no defensive

actions Robinson and Jones could have employed to avoid the accident.

Hunt testified that he had previously responded to automobile

accidents in his capacity as a police officer. Hunt also testified that he had been

trained at the police academy to initiate his emergency lights and sirens and to “look

through the intersection” when approaching an intersection. Tr. 11. Hunt denied

his actions were reckless but characterized them as careful because he scanned the

1 Following the April 5, 2020 automobile accident, Hunt remained as a police officer

with the Cleveland Division of Police until 2022, when he transferred to the Warrensville
Heights Police Department. In 2022, Hunt’s employment with the Warrensville Heights
Police Department ended, and at the time of his discovery deposition in January 2023,
Hunt was employed as a Greater Regional Transit Authority (“RTA”) bus operator in
training to obtain his commercial driver’s license.
intersection prior to driving through it. Due to the accident with Robinson and

Jones, Hunt was suspended from work for two days.

Robinson and Jones described the impact between their vehicle and

the police car as severe. The Volvo SUV that Robinson drove allegedly sustained

property damage, and Robinson and Jones allegedly sustained personal injuries in

the accident.

On April 5, 2022, Robinson and Jones filed suit against the city and

Hunt.2 On July 26, 2022, the defendants filed an answer with affirmative defenses

including political subdivision tort liability and immunity under R.C. 2744.01. On

February 24, 2023, the defendants filed a motion for summary judgment. The

motion was fully briefed, and on May 24, 2023, the trial court denied the motion

with this judgment entry:

The court finds that defendants city of Cleveland and Officer Hunt have
not proven they are afforded immunity as to plaintiffs[’] claims
pursuant to R.C. 2744.02(a)(1). The exception to political subdivision
immunity in section R.C. 2744.02(b)(1) “negligent operation of a motor
vehicle” applies herein.

Per, R.C. 2744.02(b)(1)(a), if the accident occurs as a police officer is
responding to an emergency call, and the operation of the vehicle does
not constitute willful or wanton misconduct, then immunity remains.

A genuine issue of material fact remains as to whether Officer Hunt was
responding to an emergency call. The record does not contain
sufficient evidence to prove Officer Hunt was responding to an
emergency call. Self[-]serving statements by defendant Hunt and his
counsel in briefing are insufficient. See Hubbard v. Shaffer, 8th Dist.
Cuyahoga No. 89870, 2008-Ohio-1940. The city has not proven it is

2 The complaint also named the Ohio Attorney General’s Office as a party defendant.

The Ohio Attorney General’s Office was not subject to the defendants’ motion for summary
judgment nor is it a party to this appeal.
 immune from the liability imposed by R.C. 2744.02(b)(1) for the
alleged negligence because an issue of material fact remains as to
whether Officer Hunt was responding to an emergency call.
Accordingly, defendants’ motion for summary judgment on Count’s 1-
4 of the plaintiffs’ complaint pursuant to [Civ.]R. 56 is denied.

Judgment entry, May 24, 2023.

On August 2, 2023, the city and Hunt filed an appeal from the trial

court’s May 24, 2023 order and presented two assignments of error:

Assignment of Error I: The trial court erred as a matter of law when it
denied the City of Cleveland’s motion for summary judgment based on
statutory immunity.

Assignment of Error II: The trial court erred as a matter of law when it
denied Darrin Hunt’s motion for summary judgment based on
statutory immunity.

Legal Analysis

City of Cleveland

In the defendants’ first assignment of error, they argue that the trial

court erred when it denied the motion for summary judgment on behalf of the city.

Specifically, the defendants argue that the city was immune from liability pursuant

to R.C. 2744.02(A)(1) and, therefore, entitled to a grant of summary judgment.

Before a trial court grants a motion for summary judgment, pursuant

to Civ.R. 56(C), the court must determine that

(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) it
appears from the evidence that reasonable minds can come to but one
conclusion, and viewing such evidence most strongly in favor of the
party against whom the motion for summary judgment is made, that
conclusion is adverse to that party.
Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977).

On a motion for summary judgment, the moving party’s initial

burden is to identify specific facts in the record that demonstrate its entitlement to

summary judgment. Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264

(1996). If the moving party does not satisfy this burden, summary judgment is not

appropriate. If the moving party meets the burden, the nonmoving party has a

reciprocal burden to point to evidence of specific facts in the record that

demonstrate the existence of a genuine issue of material fact for trial. Id. at 293.

Where the nonmoving party fails to meet this burden, summary judgment is

appropriate. Id.

An appellate court applies a de novo standard when reviewing a trial

court’s decision on summary judgment. Bayview Loan Servicing, L.L.C. v. St. Cyr,

2017-Ohio-2758, 90 N.E.3d 321, ¶ 11 (8th Dist.). A de novo review is an independent

review, without any deference to the trial court’s determination. State v. Buehner,

8th Dist. Cuyahoga No. 109699, 2021-Ohio-4435, ¶ 43.

Political Subdivision Tort Liability – The City of Cleveland

R.C. 2744.02 governs the immunity of a political subdivision. The

Ohio Supreme Court established a three-tier analysis to determine whether a

political subdivision is entitled to immunity under R.C. Chapter 2744. Colbert v.

Cleveland, 99 Ohio St.3d 215, 2003-Ohio-3319, 790 N.E.2d 781, ¶ 7; Lambert v.

Clancy, 125 Ohio St.3d 231, 2010-Ohio-1483, 927 N.E.2d 585, ¶ 8.
 The first tier provides a general grant of immunity under R.C.

2744.02(A)(1) that provides “a political subdivision is not liable in damages in a civil

action for injury, death, or loss to person or property allegedly caused by any act or

omission of the political subdivision or an employee of the political subdivision in

connection with a governmental or proprietary function.”

However, political subdivision immunity is not absolute but is

revoked under the second tier of the analysis if one of the five exceptions

enumerated in R.C. 2744.02(B)(1)-(5) apply and none of the delineated defenses are

applicable. If any of the exceptions in R.C. 2744.02(B) apply and no defense in that

section protects the political subdivision from liability, then the third tier of the

analysis requires an assessment of whether any defenses in R.C. 2744.03 apply to

reinstate immunity. Colbert at ¶ 9.

Here, where the parties do not dispute that the city is a political

subdivision as defined under R.C. 2744.01(F), the first tier in the analysis is

established and a presumption of tort immunity arises. Our review starts with the

second tier of the analysis and whether an R.C. 2744.02(B) exception to the city’s

immunity arises.

R.C. 2744.02(B)(1) provides that a political subdivision is liable in

damages in a civil action for injury, death, or loss allegedly “caused by the negligent

operation of any motor vehicle by [its] employees when the employees are engaged

within the scope of their employment and authority.” R.C. 2744.02(B)(1). However,

a political subdivision has a full defense to this liability 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). In other

words,

R.C. 2744.02(B)(1)(a) provides a full defense to a political subdivision
for motor-vehicle liability when the following three conditions are met:
“(1) the vehicle’s operator was a member of the municipal corporation’s
police department, (2) the officer was responding to an emergency call,
and (3) the operation of the vehicle did not constitute willful or wanton
misconduct.”

Hale v. Toth, 8th Dist. Cuyahoga No. 112030, 2023-Ohio-2954, ¶ 25, citing Smith v.

McBride, 130 Ohio St.3d 51, 2011-Ohio-4674, 955 N.E.2d 954, ¶ 18.

In the defendants’ motion for summary judgment, they argue that

Hunt, a police officer, was operating a motor vehicle while responding to an

“emergency call,” and his actions did not constitute willful or wanton misconduct.

Specifically, the defendants argue that Hunt was responding to a dispatch call that

required Hunt to report to the scene of an auto accident, and Hunt’s failure to engage

his emergency lights or sirens did not adversely impact this conclusion. The

defendants argue that the issue of whether an officer is on an “emergency call” is

determined as a matter of law, and the city was entitled to a grant of summary

judgment where it was immune to liability under R.C. Chapter 2744’s three-tier

analysis.

The issue in this matter is whether Hunt was on an “emergency call”

at the time the accident occurred. R.C. 2744.01(A) defines “emergency call” 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.” The

Ohio Supreme Court defined “duty” as “obligatory tasks, conduct, service, or

functions enjoined by order or usage according to rank, occupation, or profession.”

Colbert, 99 Ohio St.3d 215, 2003-Ohio-3319, 790 N.E.2d 781 at ¶ 13, citing

Webster’s Third New International Dictionary 705 (1986). The Colbert Court

adopted a broad interpretation of “call to duty”; determined the phrase is not limited

to inherently dangerous situations; and found the term included situations “to

which a response by a peace officer is required by the officer’s professional

obligation.” Colbert at ¶ 13-14.

“The issue of whether an officer is on an emergency call may be

determined as a matter of law when there are no triable questions of fact present.”

Gilbert v. Cleveland, 8th Dist. Cuyahoga No. 99699, 2013-Ohio-5317, ¶ 9, citing

Rutledge v. O’Toole, 8th Dist. Cuyahoga No. 84843, 2005-Ohio-1010, ¶ 19; Howe v.

Henry Cty. Commrs., 167 Ohio App.3d 865, 2006-Ohio-3893, 857 N.E.2d 664, ¶ 13

(3d Dist.). The instant facts do not present such a scenario.

The city’s initial burden upon filing its motion for summary judgment

was to identify those portions of the record that demonstrate the absence of a

genuine issue of material fact. Dresher v. Burt, 75 Ohio St.3d 280 at 292, 662

N.E.2d 264. Material facts are those facts relevant to the substantive law applicable

in a particular case. Capital One Bank (USA), N.A. v. Tenney, 11th Dist. Trumbull
No. 2010-T-0109, 2011-Ohio-4305, ¶ 24, citing Needham v. Provident Bank, 110

Ohio App.3d 817, 827, 675 N.E.2d 514 (8th Dist.1996), citing Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L.Ed.2d 202 (1986).

A material fact in the instant matter is whether Hunt was on an

“emergency call” at the time of the accident. Absent evidence on this issue, whether

Hunt was on an “emergency call” is a question of fact that is not properly considered

on summary judgment. See Malone v. Torres, 8th Dist. Cuyahoga No. 92878, 2010-

Ohio-157, ¶ 23.

The city relies on the deposition testimony of Hunt to demonstrate

that he was engaged in an “emergency call” when the accident with Robinson and

Jones occurred. When asked to describe the incident, Hunt testified:

I remember I was responding to an auto accident, unknown — I can’t
remember the location I was responding to. I was traveling on East 71st,
going through Cedar light. And that’s when the accident happened.

Tr. 9-10. The defendants did not establish Hunt was engaged in an “emergency call”

with testimony or evidence that he was driving to the scene of an accident in

response to communications from a citizen or a police dispatcher request, or even

acting on his own personal observations. The defendants’ reply brief filed before

this court states they are in possession of documents and a dispatcher’s audio

recording showing Hunt was sent by the city dispatcher to the scene of an

automobile accident on the date of loss. Reply brief, p. 3, fn. 1. Such evidence may

have demonstrated Hunt was fulfilling an “emergency call” at the time of the

accident, yet no such evidence was attached to defendants’ motion for summary
judgment and, therefore, is not part of the record. In reviewing a motion for

summary judgment, this court is limited to the record as it existed when the trial

court rendered its judgment. Dempsey v. State, 8th Dist. Cuyahoga No. 94315,

2010-Ohio-5134, ¶ 21, quoting Chickey v. Watts, 10th Dist. Franklin Nos. 04AP-818

and 04AP-1269, 2005-Ohio-4974, ¶ 14.

Hunt’s single statement during deposition — that he was “responding

to an automobile accident” — did not demonstrate there was no genuine issue of

material fact and that the defendants were entitled to judgment as a matter of law.

See Dresher, 75 Ohio St.3d 280, at 293, 662 N.E.2d 264. The defendants needed to

present additional evidence to demonstrate Hunt was on an “emergency call” and

without such evidence, defendants failed to meet their initial burden, and summary

judgment was inappropriate.

The trial court did not err when it determined a genuine issue of

material fact remained as to whether Hunt was responding to an “emergency call”

because in the specific facts before us, Hunt’s deposition testimony was insufficient

evidence. Thus, we overrule the defendants’ first assignment of error.

Political Subdivision Tort Liability – Officer Hunt

R.C. 2744.03(A)(6) governs the immunity of an employee of a

political subdivision. “For claims against employees acting in an individual capacity,

the three-tiered analysis used to determine whether a political subdivision is

immune is not used.” Lambert, 125 Ohio St.3d 231, 2010-Ohio-1483, 927 N.E.2d

585 at ¶ 10, citing Cramer v. Auglaize Acres, 113 Ohio St.3d 266, 2007-Ohio-1946,
865 N.E.2d 9, ¶ 17. Instead, under R.C. 2744.03(A)(6), an employee of a political

subdivision is immune from liability unless one of the following applies:

(a) The employee’s acts or omissions were manifestly outside the scope
of the employee’s employment or official responsibilities;

(b) The employee’s acts or omissions were with malicious purpose, in
bad faith, or in a wanton or reckless manner; [or]

(c) Civil liability is expressly imposed upon the employee by a section
of the Revised Code.

R.C. 2744.03(A)(6).

In their second assignment of error, the defendants argue that where

(1) Hunt acted within the scope of his employment as a police officer and (2) Hunt

did not act in a wanton or reckless manner, he is immune from liability under R.C.

2744.03(A)(6) and, therefore, entitled to a grant of summary judgment. Robinson

and Jones argue that Hunt’s failure to engage his emergency lights and sirens and

his decision to proceed through the intersection on a red light without first checking

for oncoming traffic constituted maliciousness, bad faith, or a wanton or reckless

manner that exempted him from immunity.

We note that Robinson and Jones offer no citations or arguments to

support their allegations that Hunt acted with malicious purpose or in bad faith.

Thus, the primary issue is whether Hunt’s actions were wanton or reckless.

Wanton and reckless have been defined by the Ohio Supreme Court

as follows:

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. (Hawkins v. Ivy, 50 Ohio St.2d 114,
363 N.E.2d 367 (1977), approved and followed.)

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. (2 Restatement of the Law 2d, Torts, Section 500
(1965), adopted.)

Anderson v. Massillon, 134 Ohio St.3d 380, 2012-Ohio-5711, 983 N.E.2d 266,

paragraphs three and four of the syllabus.

The defendants contend that Hunt’s behavior did not rise to the level

of wantonness or recklessness because the evidence does not suggest he “had a

willful and intentional design to do injury.” Motion for summary judgment, p. 15.

Defendants contend that Hunt demonstrated care when he stopped at the red light

and looked for oncoming traffic before entering the intersection. Robinson and

Jones argue a genuine issue of material fact exists as to whether Hunt’s failure to

engage his emergency lights and sirens prior to entering an intersection on a red

light constituted wanton and/or reckless behavior.

As discussed previously, there is a question of fact whether Hunt was

responding to an “emergency call.” The record also indicates genuine issues of

material fact exist as to whether Hunt’s actions amounted to wanton, willful, or

reckless misconduct.

Robinson and Jones entered the intersection on a green light with no

expectation that any cross traffic would impede their lane of travel. Hunt entered

the intersection on a red light without first engaging his emergency lights or sirens.
Hunt testified that his training required him to initiate his emergency lights and

sirens prior to entering an intersection on a red light. While Hunt testified that he

“quickly scanned” the intersection prior to entering it, his actions were insufficient

to observe the vehicle driven by Robinson. Whether Hunt’s quick scan of traffic rose

to the level of wanton or reckless behavior is a material issue of genuine fact that

should be considered by the factfinder. See Hubbard, 8th Dist. Cuyahoga No.

89870, 2008-Ohio-1940 (Where there is a question of fact whether the officer was

responding to an “emergency call” and whether his actions demonstrated willful,

wanton, or reckless misconduct, genuine issues of material fact existed and

summary judgment was inappropriate.).

Accordingly, the trial court did not err when it determined genuine

issues of material fact exist and denied Hunt’s motion for summary judgment. The

defendants’ second assignment of error is overruled.

Judgment affirmed and case remanded for further proceedings.

It is ordered that appellees recover from appellants costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.
 A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

_________________________
MARY EILEEN KILBANE, JUDGE

MICHELLE J. SHEEHAN, P.J., and
EILEEN T. GALLAGHER, J., CONCUR