Summary
In Adams, we rejected the argument that an employer could not be liable under the doctrine of respondeat superior if the employee was immune from personal liability.
Summary of this case from State ex Rel. Sawicki v. Lucas CtyOpinion
Nos. 84-917 and 84-919
Decided July 10, 1985.
Torts — Municipal corporations — R.C. 701.02 applicable only to negligent actions — Municipality may be liable for willful and/or wanton tortious conduct of police officers.
O.Jur.3d Government Tort Liability §§ 61, 67, 102.
The statutory provision of immunity as to municipal corporations, found in R.C. 701.02, relates only to negligent actions; therefore, a municipality may be held liable for the willful and/or wanton tortious conduct of its police officers.
APPEALS from the Court of Appeals for Lake County.
Defendant, Richard A. Baker, a police officer with defendant-appellant city of Willoughby, was responding to an emergency call at the Great Lakes Commerce Bank, on November 29, 1979, when he was involved in a motor vehicle accident at the intersection of Wilson, Park, and Euclid Avenues. The officer had entered the intersection against a red traffic light with his emergency lights flashing. Upon entering the intersection the officer's patrol car collided with the motor vehicle being operated by appellee Linda Peoples. Passengers in the Peoples' vehicle were Georgia Adams and her two sons, Courtney and Brandon, and Mrs. Peoples' two daughters, Amy and Aubrey.
As a result of the accident, Adams, her husband and their two sons filed an action in the Court of Common Pleas of Lake County against Linda Peoples, Officer Baker and the city of Willoughby. Peoples filed an answer to the complaint and a cross-claim against Baker and the city of Willoughby. Subsequently, Peoples filed an answer to the second amended complaint and a cross-claim against Baker and the City of Willoughby. She also filed a third-party complaint against Great Lakes Commerce Bank. All the claims arising out of this action were subsequently concluded except for Linda Peoples' cross-claim against Baker and the city of Willoughby and her third-party complaint against Great Lakes Commerce Bank.
Arising out of the same accident, an action was filed on behalf of Amy and Aubrey Peoples, against Baker, the city of Willoughby and Great Lakes Commerce Bank. As to Baker and the city of Willoughby, this complaint alleged negligence, recklessness, and willful and/or wanton misconduct in the motor vehicle accident. As to Great Lakes Commerce Bank, the complaint alleged negligence, recklessness, and willfulness in setting off a silent alarm at the bank which triggered the response of the Willoughby Police Department. The two cases were consolidated.
Motions were filed by the city of Willoughby, Baker, and the Great Lakes Commerce Bank for summary judgment as to the complaints brought against them. On February 7, 1983, the trial court granted summary judgment to the city of Willoughby and Great Lakes Commerce Bank. The court also granted partial summary judgment to Baker as to his alleged negligence in both Linda Peoples' cross-claim and the complaint filed on behalf of Amy and Aubrey Peoples, but overruled Baker's motion as to the allegation in both the cross-claim and the complaint alleging the willful and/or wanton misconduct of the officer.
On appeal the Court of Appeals for Lake County affirmed the trial court in part and reversed in part and remanded. The appellate court found that the provisions of R.C. 701.02 provided immunity to Baker from personal liability resulting from the accident. The court, therefore, reversed the decision of the trial court which found that the officer should not be granted summary judgment as to his alleged willful and/or wanton conduct. The court also found that the provisions of R.C. 701.02 did not provide immunity to the city of Willoughby for the alleged willful and/or wanton misconduct of its police officers. Therefore, the appellate court reversed the granting of summary judgment as to the city on the issue of willful and/or wanton misconduct in responding to the emergency call. The court also affirmed the granting of summary judgment as to the Great Lakes Commerce Bank.
The allegations in appellees' original complaint and cross-claim alleged willful and/or wanton misconduct on the part of the police officer related to his response to an alarm at the Great Lakes Commerce Bank. The time of the accident was approximately 3:40 p.m. The weather was inclement. The visibility at that time was hazy and the roads were wet due to melted snow. Appellees assert that Baker was not operating his siren at the time he entered the intersection on the corners of Euclid, Park, and Wilson Avenues. The record reveals that the police officer had gone left of the center line to enter the intersection on a red traffic light and that the Peoples' vehicle entered the intersection from Baker's right on a green light attempting to turn left. The view of Linda Peoples was blocked by the traffic which the patrol car was passing and a large hedge which runs along the roadway at the intersection.
The allegations by appellees as to the willful and/or wanton misconduct of the police officer relate to the excessive speed at which he was operating his vehicle and his reckless conduct in entering the intersection.
The cause is now before this court pursuant to the allowance of motions to certify the record.
Cannon, Stern, Aveni Krivok Co., L.P.A., and James N. Krivok, for appellees. Dworken Bernstein Co., L.P.A., and Andrew P. Buckner, for appellant.
"In the absence of a statute providing immunity, the defense of sovereign immunity is not available to a municipal corporation * * *." Strohofer v. Cincinnati (1983), 6 Ohio St.3d 118, syllabus. See, also, Haverlack v. Portage Homes, Inc. (1982), 2 Ohio St.3d 26; Enghauser Mfg. Co. v. Eriksson Engineering Ltd. (1983), 6 Ohio St.3d 31; and Longfellow v. Newark (1985), 18 Ohio St.3d 144. In the present case the court is called upon to interpret the immunity provided a municipal corporation by R.C. 701.02. This is not the first case in which this court has been presented with this question since the abrogation of municipal sovereign immunity in Haverlack, supra. King v. Williams (1983), 5 Ohio St.3d 137, provides in paragraph three of the syllabus that: "A municipal corporation and its individual employee, acting within the scope of R.C. 701.02, are immune from liability for negligence in the performance or non-performance of their acts. * * *" (Emphasis added.)
The issue in the present case is somewhat different than that presented in King. Appellees allege that the conduct of the appellant's employee, Police Officer Baker, which caused the injuries of the appellees, was willful and/or wanton. R.C. 701.02 states in pertinent part:
"The defense that the officer, agent, or servant of the municipal corporation was engaged in performing a governmental function, shall be a full defense as to the negligence of:
"(A) Members of the police department engaged in the operation of a motor vehicle while responding to an emergency call." (Emphasis added.)
The statutory provision of immunity for a municipality pursuant to R.C. 701.02 relates only to negligent actions. Therefore, a city may be held liable for any tortious conduct of its police officers which is found to be willful and/or wanton. This liability of the city of Willoughby exists even though the police officer may not be personally liable pursuant to the last paragraph of R.C. 701.02, which provides: "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."
Also by reason of this last paragraph of R.C. 701.02, the court of appeals correctly decided that Baker was not personally liable either for his negligent acts or for his willful or wanton acts causing injury or property loss while responding to an emergency call.
Appellant argues that it cannot be held liable for the tortious conduct of its employee under the doctrine of respondeat superior when such employee is immune from the suit. Such argument is rejected by this court and by a majority of jurisdictions which have addressed the issue. This exact issue is addressed in the Restatement of the Law 2d, Agency (1958) 468-469, Section 217:
See Annotation (1965), 1 A.L.R. 3d 677, 689-699, and the cases cited therein for discussion of the impact of an immunity between parties in a suit against the employer.
"In an action against a principal based on the conduct of a servant in the course of employment:
"(a) * * *
"(b) The principal has no defense because of the fact that:
"* * *
"(ii) the agent had an immunity from civil liability as to the act."
The language of R.C. 701.02 is clear. The court of appeals correctly concluded that the city is extended immunity in cases involving motor vehicle accidents in which police officers are responding to emergency calls, but only as to the negligent acts of the officers. The appellees have alleged that the actions of Officer Baker were willful and/or wanton in light of the conditions surrounding the accident. Therefore, the judgment of the court of appeals is affirmed.
Judgment affirmed.
CELEBREZZE, C.J., SWEENEY and DOUGLAS, JJ., concur.
LOCHER, HOLMES and WRIGHT, JJ., dissent.
I concur in Justice Holmes' dissenting opinion and also dissent for the reasons stated in my dissenting opinion in Longfellow v. Newark (1985), 18 Ohio St.3d 144, 146.
WRIGHT, J., concurs in the foregoing dissenting opinion.
In my dissenting opinion in Longfellow v. Newark (1985), 18 Ohio St.3d 144, 146, I proposed that this court adopt the approach that the United States Supreme Court has taken to determine the extent of municipal liability in actions brought pursuant to Section 1983, Title 42, U.S. Code. Under such approach, a city of this state would only be liable for the execution of a governmental policy or custom which ultimately causes harm to another. Additionally, and more specifically for the purposes of this appeal, a municipality could not be held liable under a respondeat superior theory merely because it employs a tortfeasor. Longfellow, supra, at 146 (dissenting opinion); Monell v. Dept. of Social Services of New York City (1978), 436 U.S. 658, 693-694; Owen v. Independence (1980), 445 U.S. 622.
The majority herein concedes that Officer Baker is not liable for any of his actions as he is afforded complete immunity under R.C. 701.02. However, the majority then permits a cause of action against his employer, the city of Willoughby.
In addition to the Supreme Court's pronouncement, this court has long recognized that an employer will be exonerated from any potential vicarious liability when its employee is found not to be at fault. Losito v. Kruse (1940), 136 Ohio St. 183 [16 O.O. 185]; State, ex rel. Flagg, v. Bedford (1966), 7 Ohio St.2d 45 [36 O.O.2d 41]. Under the doctrine of respondeat superior, an employer is not liable where there is a lack of evidence that it caused the injury in question and a judgment in favor of its employee has been rendered. Moncol v. Bd. of Edn. (1978), 55 Ohio St.2d 72 [9 O.O.3d 75], syllabus. Therefore, under the facts presented, it should follow that if Officer Baker has been dismissed from suit then there lacks any basis upon which to hold the municipality vicariously liable.
However, with no legal justification, the majority adopts Section 217(b)(ii) of the Restatement of the Law 2d, Agency (1958) 468-469, in support of its decision herein. The reader is given no foundation for the adoption of the Restatement view except a citation to an annotation contained in 1 A.L.R. 3d 677 (1965). It is interesting to note that this annotation is entitled "Liability of Employer for Injury to Wife or Child of Employee Through Latter's Negligence." I, for one, am not sure what this annotation has to do with extending municipal liability to include the alleged willful or wanton acts of police officers in responding to emergency calls. I believe the extension is extremely ill-conceived.
Based on the Supreme Court's interpretation concerning municipal liability under Section 1983 and this state's common law, it is my view that appellees' complaint does not state a cause of action against the city of Willoughby. Accordingly, I dissent.
LOCHER and WRIGHT, JJ., concur in the foregoing dissenting opinion.