Opinion
No. 89-01427.
Decided May 4, 1990.
Martin W. Williams and Tygh M. Tone, for plaintiffs.
Anthony J. Celebrezze, Jr., Attorney General, and Susan M. Sullivan, Assistant Attorney General, for defendant.
This lawsuit arises out of a chain of events which occurred on January 10, 1987, in Toledo, Ohio. On that date, Shirley Buell, a police officer for the defendant Toledo Mental Health Center ("TMHC"), was approached by a patient who alleged that she had just been the victim of a rape. TMHC is a mental health care facility located in Toledo. The patient then proceeded to identify the alleged rapist, who was standing nearby, to Officer Buell. Officer Buell confronted the suspect, who was later identified as James Gibson, in an effort to inquire about the patient's allegations. Gibson immediately struck Officer Buell and then fled. Gibson ran to his automobile, entered it and drove away from the facility.
Officer Gerald Willoughby was also stationed at the TMHC facility. At the time of the above events, he had access to a Jeep Wagoneer owned by TMHC. Officer Buell radioed to Officer Willoughby and described these events. Officer Buell was also able to accurately describe to Officer Willoughby the vehicle Gibson was operating. Officer Buell asked Officer Willoughby to secure the "registration" on the car if at all possible. Officer Willoughby drove to the front entrance of TMHC where Officer Buell pointed out the vehicle driven by Gibson.
Officer Willoughby observed Gibson leave the facility, turn left onto Detroit Avenue, then proceed through the intersection of Detroit and Arlington Avenues. Officer Willoughby noticed that Gibson ran a red light at that intersection, accelerated to an excessive rate of speed and turned off the headlights of his vehicle. Gibson was proceeding along Detroit Avenue and approaching the South Street intersection which is sixth tenths of a mile from the Arlington Avenue intersection.
Officer Willoughby intended to follow the Gibson vehicle in an attempt to get its license plate number. He had no intention of stopping the vehicle. The vehicle Officer Willoughby was operating was equipped with overhead flashing lights. These he engaged so as to stop traffic on Detroit Avenue while he entered the roadway. Officer Willoughby paused before entering the roadway in order to allow sufficient time for the other motorists to stop their vehicles. He then drove onto Detroit Avenue. As he drove through the Arlington Avenue intersection, he heard a collision which, as he subsequently discovered, involved Gibson and other vehicles. At the time, Officer Willoughby was approximately five tenths of a mile from the South Street intersection. Officer Willoughby then proceeded to the South Street intersection with his overhead flashing lights operating. His vehicle was equipped with a siren which was never operating during this entire chain of events.
Upon arriving at the accident scene, the officer discovered that Gibson had run the red light at the South Street intersection and struck a vehicle driven by Julie Thorton. Thorton had been traveling west on South Street. After striking the front of the Thorton vehicle, Gibson proceeded further into the intersection and struck an automobile driven by plaintiff John Brasher. Brasher had properly stopped his automobile in the southbound lane of Detroit Avenue at the South Street intersection. Brasher was seated in the driver's seat of his vehicle, while his wife Betty Brasher, also a plaintiff in this action, was seated in the back seat of the automobile. Officer Willoughby then positioned his vehicle near the center of the intersection and continued to display the flashing lights.
On January 6, 1989, plaintiffs filed this action against the defendant. Plaintiffs contended that, as a direct and proximate result of the alleged negligence of Officer Willoughby, they have suffered personal injuries. Plaintiffs' action came to trial before this court upon the sole issue of liability. The court has duly considered the evidence and arguments of counsel and renders the following decision.
Plaintiffs alleged that defendant's agent, Officer Willoughby, failed to utilize proper precautions for the safety of other motorists by his failure to sound the siren when following Gibson. Plaintiffs have the burden of proving, by a preponderance of the evidence, that Officer Willoughby owed a duty to plaintiffs, that there was a breach of the duty, and that the breach was a direct and proximate cause of their injuries. DiGildo v. Caponi (1969), 18 Ohio St.2d 125, 47 O.O.2d 282, 247 N.E.2d 732; 70 Ohio Jurisprudence 3d (1986) 46, Negligence, Section 9.
Plaintiffs' counsel argued at trial that the duty owed by Officer Willoughby to the plaintiffs is found in R.C. 4513.21, which reads in pertinent part as follows:
"* * * 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 highway safety. 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, in which case the driver of the emergency vehicle shall sound such equipment when it is necessary to warn pedestrians and other drivers of the approach thereof." (Emphasis added.)
Relying on the cited statute, the plaintiffs asserted that Officer Willoughby breached his duty by failing to sound the siren on his vehicle while following Gibson. Therefore, the critical issue is narrowed to whether Officer Willoughby was responding to an emergency call or was engaged in the immediate pursuit of Gibson as contemplated by the drafters of the statute.
A review of the facts indicates that Officer Willoughby intended only to obtain a view of the license plate number, and did not intend to apprehend the driver. Officer Willoughby utilized the overhead lights on his vehicle, but only as a temporary safety precaution for the benefit of those in his immediate area. As Officer Willoughby entered Detroit Avenue, there was already a great distance between his vehicle and that of Gibson. Also, the collisions occurred before Officer Willoughby had gone more than a tenth of a mile. Willoughby, in response to the collisions, then sought to help the victims of Gibson's reckless driving. This he accomplished upon arrival at the scene by positioning his emergency lights so as to warn other motorists. Considering all of these pertinent facts, the court finds by a preponderance of the evidence that Officer Willoughby was neither operating his vehicle in response to an emergency call nor, as he approached the area where plaintiffs were struck, was he in the immediate pursuit of a suspected law violator as contemplated by R.C. 4513.21. Consequently, Officer Willoughby was not operating his vehicle in a manner that required the sounding of a siren.
Plaintiffs contended that the failure of Officer Willoughby to turn the overhead lights off indicated that he was indeed in hot pursuit of a suspected violator of the law. However, the court finds that the lights on a police vehicle may be used at the discretion of the officer. Furthermore, merely because an officer displayed his lights does not signify that he is in hot pursuit, as he may only be attempting to stop traffic to move through for other police purposes. In this case, the court finds that Officer Willoughby intended to turn off the overhead lights but when he heard the crash his attention was directed to the possibility of serious injuries ahead.
Since R.C. 4513.21 is inapplicable to the case at bar, it then follows that Officer Willoughby had only a duty to operate his vehicle with due regard for the safety of all persons and property on the highway whom he might personally encounter. R.C. 4511.45. Considering the evidence and testimony at trial, the court finds by a preponderance of the evidence that Officer Willoughby operated his vehicle with due regard for the safety of others. Finding no breach of duty, the court concludes that Officer Willoughby was not negligent.
Assuming, arguendo, that Officer Willoughby had breached some duty owed to plaintiffs, the court adds that the proximate cause of this accident was the reckless driving of Gibson. In cases involving auto accidents, proximate cause generally means the nearest cause or negligent act which in the natural and continuous sequence produces an injury which would not have occurred but for the negligent act. Szabo v. Tabor Ice Cream Co. (1930), 37 Ohio App. 42, 9 Ohio Law Abs. 11, 174 N.E. 18; Conor v. Flick (1940), 64 Ohio App. 259, 18 O.O. 98, 28 N.E.2d 657. In the case at bar, Gibson had a duty to operate his vehicle with ordinary care so as to avoid injury to others. The court finds by a preponderance of the evidence that Gibson breached this duty of ordinary care by driving at an excessive rate of speed after intentionally turning off his headlights. Furthermore, the court finds by a preponderance of the evidence that the negligence of Gibson was the sole and proximate cause of the accident at issue and the resulting injuries to plaintiff, regardless of any assumed negligence on behalf of Officer Willoughby.
For all of the above reasons, and based upon all of the evidence submitted, the court concludes that defendant was not negligent under the circumstances of this case. Consequently, judgment is hereby rendered for the defendant. Court costs are assessed against plaintiffs.
Judgment accordingly.
FRED J. SHOEMAKER, J., retired, of the Franklin County Common Pleas Court, sitting by assignment.