Summary
In Lingo v Hoekstra, 176 Ohio St. 417, 420; 200 N.E.2d 325 (1964), the Ohio Supreme Court recognized the distinction the General Assembly had made between "response to an emergency call" and "the immediate pursuit of an actual [or] suspected violator of the law" and held that the officer's pursuit of a suspected violator to pace his speed did not as a matter of law constitute "responding to an emergency call".
Summary of this case from Fiser v. City of Ann ArborOpinion
No. 38244
Decided July 1, 1964.
Negligence — Police officer pursuing suspected speed-law violator — Not responding to emergency call — Section 701.02, Revised Code — Personal liability for damages resulting from vehicle collision.
Where a police officer in a police vehicle pursues a suspected violator of a 35-mile-per-hour speed law for the purpose of pacing the suspected violator to determine whether he is, in fact, violating the speed law, and where during such pursuit the suspected violator runs through a red traffic light at an intersection, such pursuit by the police officer does not constitute "responding to an emergency call" under the provisions of Section 701.02, Revised Code, and will not excuse the police officer from personal liability for damages resulting from his negligence in running through the same red traffic light at the same intersection, while continuing his pursuit, and colliding with another vehicle proceeding on a green traffic light, thereby causing injury to a passenger in such vehicle.
APPEAL from the Court of Appeals for Hamilton County.
This action was commenced by the plaintiff, a minor, by and through her mother and next fried, in the Common Pleas Court of Hamilton County for damages for injuries suffered when the automobile, owned and driven by her father and in which she was riding as a passenger, collided with an automobile driven by the defendant. The accident occurred at the intersection of Victory Parkway and Dana Avenue in Cincinnati.
The defendant was a Cincinnati police officer engaged in his official duty of driving a police vehicle, known as an interceptor, equipped with a siren and red blinker lights. This vehicle is primarily used for traffic control.
The defendant contends that prior to the accident his vehicle was proceeding north on Victory Parkway near the intersection of Rockdale Avenue when he observed a motor vehicle in front of him traveling in the same direction and which, in his opinion, was traveling at a speed in excess of the 35-mile-per-hour speed law. The defendant began pursuit of the vehicle for the purpose of pacing it to determine its speed, and, before he could get a pace to determine its speed, the vehicle failed to stop for the red traffic light at the intersection of Victory Parkway and Dana Avenue. The defendant officer proceeded through the red traffic light at the intersection and collided with the vehicle in which the plaintiff was a passenger, causing injuries to the plaintiff.
The accident occurred at approximately 1:30 on the morning of July 2, 1958. The weather was clear and dry.
The speed of defendant's vehicle, whether his siren was sounding, whether the vehicle's flashing red lights were activated and whether the defendant was actually pursuing a suspected speed law violator in order to pace him to determine whether he was in fact violating the speed law are matters which were in controversy in the testimony presented to the jury.
The defendant moved for a directed verdict at the close of plaintiff's testimony and at the close of the defendant's testimony, upon the ground that Section 701.02, Revised Code, provides that "policemen shall not be personally liable for damages for injury or loss to persons or property and for death caused while engaged in the operation of a motor vehicle while responding to an emergency call." (Emphasis added.) The motions were overruled.
The court, in the general charge to the jury, charged that as a matter of law the defendant was not "responding to an emergency call."
The jury returned a verdict for the plaintiff in the sum of $500, and judgment was rendered thereon.
The defendant appealed to the Court of Appeals, which court reversed the judgment of the Common Pleas Court and entered final judgment for the defendant.
The cause is before this court upon the allowance of a motion to certify the record.
Messrs. Lindhorst Dreidame and Mr. Leo J. Breslin, for appellant.
Mr. William A. McClain, city solicitor, and Mr. Philip S. Olinger, for appellee.
This cause involves a simple issue: Is a policeman, who pursues in his patrol car the vehicle of a suspected speed law violator for the purpose of pacing it to determine whether he in fact is violating the speed law and follows such vehicle through a red traffic light and crashes into another vehicle, which is proceeding through the intersection on a green traffic light, injuring the passenger in such vehicle, immune as a matter of law from responding in damages to the injured passenger by reason of the provisions of Section 701.02, Revised Code, that "policemen shall not be personally liable for damages for injury or loss to persons or property and for death caused while engaged in the operation of a motor vehicle while responding to an emergency call"?
Defendant contends that these statutory provisions afford him personal immunity from liability for damages in this action.
The trial court took the position, in overruling defendant's motions for a directed verdict and in the general charge to the jury, that, as a matter of law, the defendant was not responding to an emergency call.
The Court of Appeals reversed the judgment of the trial court and entered final judgment for the defendant, apparently, in its entry, taking the position that as a matter of law the defendant was "responding to an emergency call."
Section 4513.21, Revised Code, makes a distinction between an emergency call and the immediate pursuit of an actual or suspected violator of the law, in the following language:
"* * * Every emergency vehicle shall be equipped with a siren, whistle, or bell, capable of emitting sound audible under normal conditions from a distance of not less than five hundred feet and of a type approved by the Director of Highways. Such equipment shall not be used except when such vehicle is operated in response to an emergency call or is in the immediate pursuit of an actual [or] suspected violator of the law * * *."
It is clear that the General Assembly, in enacting this section, differentiated between "response to an emergency call" and "the immediate pursuit of an actual [or] suspected violator of the law."
At common law a police officer has no defense against liability for torts committed under color of office and is personally liable for his negligence in performing official duties. United States Fidelity Guaranty Co. v. Samuels, 116 Ohio St. 586, 157 N.E. 325, 53 A.L.R., 36.
In the case before us, there was no "call" to the defendant, either by personal outcry, telephone or police radio. According to the testimony, he was driving along the street at what he estimated to be 35 miles per hour, when he observed a car some distance ahead of him, which he was never able to identify by license number, color or make and which he felt might be going approximately 50 miles per hour, and decided to pace it to determine whether the driver was in fact violating the 35-mile-per-hour speed law.
The word, "call," in the phrase, "emergency call," in Section 701.02, supra, refers not just to a call in person or by a medium of communication from a citizen, superior officer of the policeman or police dispatcher, but rather to a "call to duty." However, the essential question here is: Was this "an emergency call," that is, did it arise from such a dangerous situation that it would excuse the defendant from being liable for his negligent conduct which resulted in the injury to the plaintiff?
There is no evidence here that the defendant had any reason to believe that the driver of the car which he was pursuing had committed any crime, felony or misdemeanor other than the possibility, which was never determined, that he might have been guilty of the misdemeanor of violating a 35-mile-per-hour speed law and of committing an additional misdemeanor of running through a red traffic light, which the defendant asserts occurred during the time he was pacing this vehicle and before he had determined that its driver was exceeding the speed law (all other witnesses to the accident called at the trial testified that they did not see any vehicle run the red traffic light ahead of the patrolman's car, which vehicle he claimed he was pursuing for the purpose of pacing it to determine its speed).
Based upon the record in this particular case, the pursuit of the suspected violator of the 35-mile-per-hour speed law for the purpose of pacing him to determine whether he was in fact violating the speed law did not, as a matter of law, constitute "responding to an emergency call" under the provisions of Section 701.02, supra, and, under such circumstances, will not excuse the defendant from responding in damages for his negligence in running through a red traffic light at an intersection and colliding with the vehicle proceeding through the intersection on a green traffic light, thereby causing injury to the plaintiff, who was a passenger in such vehicle.
The Court of Appeals was in error in reversing the judgment of the Common Pleas Court.
The judgment of the Court of Appeals is reversed, and the judgment of the Common Pleas Court is affirmed.
Judgment reversed.
TAFT, C.J., ZIMMERMAN, MATTHIAS, GRIFFITH, HERBERT and GIBSON, JJ., concur.