Opinion
No. 77635.
Decided December 13, 2001.
Civil appeal from Common Pleas Court Case No. 382830.
For Plaintiff-Appellant: THOMAS M. HORWITZ, ESQ. KENNETH A. BIRNE, ESQ. Pelz Birne 1880 Midland Building 101 Prospect Avenue, West Cleveland, Ohio 44115.
For Defendants-Appellees: DANIELLE L. PECENKA Assistant Director of Law City Hall Room 106 601 Lakeside Avenue Cleveland, Ohio 44114-1077.
JOURNAL ENTRY and OPINION
Appellant James Colbert appeals the trial court's granting of summary judgment in favor of appellee City of Cleveland. Colbert assigns the following as error for our review:
THE TRIAL COURT ERRED WHEN IT GRANTED THE CITY OF CLEVELAND'S MOTION FOR SUMMARY JUDGMENT.
Having reviewed the record and legal arguments of the parties, we affirm the decision of the trial court. The apposite facts follow.
While patrolling near East 114th Street, Cleveland, Officer Daniel Connors and his partner, Officer Michael Shay, observed two males in a red Dodge hand money to a male standing on the side of the street. After the exchange, the two men drove away. This area of Cleveland, Officer Connors testified, is notorious for drug trafficking. Without activating his vehicle's lights or siren or calling for assistance, Officer Connors cautiously pursued the Dodge, believing its occupants had just purchased drugs. Officer Connors planned to stop the vehicle after it cleared the transaction area so as not to alert the suspected seller. The officers drove parallel to the course taken by the Dodge, anticipating they would intercept the Dodge in the area of East 93rd Street. When the officers reached the intersection of East 114th Street and Harvard Avenue, Officer Connors stopped, looked both directions, and proceeded into the intersection where he collided with Colbert's vehicle.
Colbert sued the City of Cleveland and Officer Connors for personal injuries suffered in the collision. Upon Officer Connors' motion, the trial court determined he was immune from liability as an employee of a political subdivision, and dismissed the complaint against him, leaving the cause pending against the City. Following deposition of Officer Connors, the City moved for summary judgment. The City argued it is immune from suit because the accident occurred while Officer Connors was responding to an emergency call as defined in R.C. 2744.01(A). The trial court agreed, and granted the City's motion for summary judgment. This appeal follows.
We review the grant of summary judgment de novo. We afford no deference to the trial court's decision and independently review the record to determine whether summary judgment is appropriate. Under Civ.R. 56, summary judgment is appropriate when, (1) no genuine issue as to any material fact exists, (2) the party moving for summary judgment is entitled to judgment as a matter of law, and (3) viewing the evidence most strongly in favor of the non-moving party, reasonable minds can only reach one conclusion which is adverse to the non-moving party. Civ.R. 56 places upon the moving party the initial burden of setting forth specific facts that demonstrate no issue of material fact exists and the moving party is entitled to judgment as a matter of law. If the movant fails to meet this burden, summary judgment is not appropriate; if the movant does meet this burden, summary judgment will only be appropriate if the non-movant fails to establish the existence of a genuine issue of material fact.
Brown v. Scotio Cty. Bd. Of Commrs (1993), 87 Ohio App.3d 704, 711, 622 N.E.2d 1153, 1157; Dupler v. Mansfield Journal Co., Inc. (1980), 64 Ohio App.2d 116, 413 N.E.2d 1187.
Northeast Ohio Apt. Assn. v. Cuyahoga Cty Bd. of Commrs. (1997), 121 Ohio App.3d 188, 699 N.E.2d 534; Weiper v. W.A. Hill Assoc.(1995), 104 Ohio App.3d 250, 661 N.E.2d 769; Brown v. Scotio Bd. Of Commrs, 87 Ohio App.3d 704, 622 N.E.2d 1153.
Holliman v. Allstate Ins. Co. (1999), 86 Ohio St.3d 414, 715 N.E.2d 532; Temple v. Wean United, Inc. (1997), 50 Ohio St.2d 317, 327, 364 N.E.2d 267, 273-274.
Dresher v. Burt (1996), 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264, 273-274.
Prior to evaluating whether the City and Colbert met their respective Dresher burdens, we set forth the framework for our query. In his sole assigned error, Colbert argues the trial court erred in granting summary judgment by misapplying R.C. 2744.02 which states:
(A)(1) For the purposes of this chapter, the functions of political subdivisions are hereby classified as governmental functions and proprietary functions. Except as provided in division (B) of this section, a political subdivision is not liable in damages in a civil action for injury, death, or loss to persons 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.
* * *
(B) Subject to sections 2744.03 and 2744.05 of the Revised Code, a political subdivision is liable in damages in a civil action for injury, death, or loss to persons or property allegedly caused by an act or omission of the political subdivision or of any of its employees in connection with a governmental or proprietary function, as follows:
(1) Except as otherwise provided in this division, political subdivisions are liable for injury, death, or loss to persons or property caused by the negligent operation of any motor vehicle by their employees upon the public roads, highways, or streets when the employees are engaged within the scope of their employment and authority. The following are full defenses to such liability:
(a) 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;
* * *
[Emphasis added].
Thus, R.C. 2744.02 sets forth a three-tiered analysis: first, whether blanket immunity exists, second, whether the exception to blanket immunity applies, and third, whether a full defense to the exception applies. Here, the parties agree that the City may claim blanket immunity, and that the exception to such immunity applies. The parties differ on whether the City can avail itself of a full defense to liability. The City argues a full defense applies because Officer Connors was responding to an emergency call when the accident occurred, and he was not engaging in willful or wanton misconduct. Because Colbert concedes Officer Connors did not engage in willful or wanton misconduct, our sole query is whether a genuine issue of material fact exists as to whether Officer Connors was responding to an emergency call at the time of the accident.
See Jones v. Shelly Co. (1995), 106 Ohio App.3d 440, 445, 666 N.E.2d 316, 319.
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.
[Emphasis added].
This and many other courts throughout Ohio have held it is the to duty, not the degree of actual danger which trigger immunity.
In Hall-Pearson v. City of South Euclid, this court held that a police officer responding to a robbery dispatch was on an emergency call even though the robber had already completed his crime and the responding officer did not activate his lights or siren. Hall-Pearson urged that these facts necessarily lead to the conclusion that no danger existed, and thus an emergency ceased to exist. We dismissed Hall-Pearson's argument which was based on the degree of danger, and determined that an emergency call existed as a matter of law because the officer was responding to a call to duty.
Cuyahoga County App. No. 73429, unreported
Id. Stating, It is also clear that the officer responding to the emergency call need not activate the siren and lights of the vehicle in order for the response to constitute an emergency call within the meaning of R.C. 2744.01(A). Lipscomb v. Lewis (1993), 85 Ohio App.3d 97, 619 N.E.2d 102; Horton v. Dayton, supra, at 71; Moore v. Columbus (1994), 98 Ohio App.3d 701, 709, 649 N.E.2d 850.
Id.
Id.
In Moore v. City of Columbus, the Tenth District Court of Appeals determined that an emergency call is not limited to inherently dangerous situations. In Moore, a police officer caused a traffic accident while responding to a burglary dispatch. In affirming the trial court's grant of summary judgment regarding R.C. 2744 municipal liability, that court stated:
[A]ppellants' interpretation of the statute serves to restrict the rather open-ended definition of emergency call as provided by the legislature. By focusing on the language inherently dangerous situations appellants have completely failed to comprehend that R.C. 2744.01(A) defines emergency call as a call to duty including, but not limited to * * * police dispatches * * * of inherently dangerous situations that demand an immediate response on the part of a peace officer. * * * There is no requirement in the statute which would limit an emergency call only to those occasions where there is an inherently dangerous situation or when human life is at danger.
(1994), 98 Ohio App.3d 701, 706, 649 N.E.2d 850, 853. Emphasis in original.
In Brockman v. Bell, the First District Court of Appeals of Ohio determined that a fire department ambulance responding to a 911 call was on an emergency call even though no fire existed.
(1992), 78 Ohio App.3d 508, 605 N.E.2d 445.
Id.
In Fish v. Coffey, the Second District Court of Appeals of Ohio stated in syllabus:
(1986), 33 Ohio App.3d 129, 514 N.E.2d 896.
* * *.
It is the urgent call to duty rather than the actual degree of danger that triggers the immunity afforded by former R.C. 701.02 [predecessor to current R.C. 2744.02] to police officers `engaged in the operation of a motor vehicle while responding to an emergency call.'
Id. R.C. 701.02 is the precursor of R.C. 2744. See Rogers v. DeRue (1991), 75 Ohio App.3d 200, 203, 598 N.E.2d 1312, 1313.
Thus, Ohio Appellate Courts have consistently held that a call to duty, regardless of whether any danger actually existed, is an emergency call which triggers immunity. Further, neither the Revised Code nor any relevant case law distinguishes a call to duty resulting from the responding officer's personal observations from any other call to duty. In fact, various Ohio courts including this court have explicitly held that R.C. 2744.01(A) does not segregate an officer's personal observations for greater scrutiny.
In Jacobs v City of Cleveland, this court again supported the proposition that danger is not a factor when determining whether a police officer was responding to an emergency call even when the call stemmed from the officers own observations. In that case, the police officer personally observed Jacobs speeding through two traffic lights. While in the process of pulling-over Jacobs, the officer's cruiser slid on a patch of ice and hit Jacob's car. In affirming the trial court's grant of summary judgment as to R.C. 2744 municipal immunity we stated:
Appellants appear to argue that the situation must be one that is inherently dangerous in order to constitute an emergency call. [R.C. 2744.01(A)], however, is not so restrictive.
Read in its entirety, the definition begins broadly by defining an emergency call as a call to duty. This duty includes, but is not limited to, responding to inherently dangerous situations. Thus appellants' position that an emergency call must be in response to an inherently dangerous situation is insupportable.
Jacobs at 5-6, citing Moore v. Columbus (1994), 98 Ohio App.3d 701, 706-707, 649 N.E.2d 850. Emphasis in original.
In Ferrell v. Windham Township Police Department, the Eleventh District Court of Appeals considered whether a police officer responding to his personal observation of a driver squealing his vehicle's tires was on an emergency call. In affirming the trial court's grant of summary judgment, the Eleventh District stated:
[R.C. 2744.01(A)'s] statutory language is explicitly intended to be an exemplary, not exhaustive, list of emergency calls. An emergency call need not be in response to an inherently dangerous situation. An officer's observation of reckless driving may demonstrate that there is no genuine issue of material fact regarding whether the officer was responding to an emergency call.
Ferrell at 8. Internal citations omitted.
The foregoing cases clearly establish that R.C. 2744.01(A) broadly defines emergency call as a call to duty, and then provides a non-exhaustive list of examples of what may constitute a call to duty. Because an emergency call is, by explicit definition, a call to duty, and because our body of case-law clearly supports such a broad definition, any concern for inherent danger, and the proposition that an officer's personal observations should be subject to unique skepticism, are indulgent pursuits of non-issues engaged in by the minority opinion. By definition, a police officer responding to a personal observation is on an emergency call if such observation calls him to duty.
Having established our framework by focusing the issue on whether Officer Connor was on an emergency call, and defining that an emergency call is simply a call to duty, we now turn to the established facts of this case and whether the City and Colbert satisfied their respective Dresher burdens. Although on an appeal from summary judgment we conduct a de novo review, we do not sit as would a trial court. Contrary to the minority opinion's approach, we are not finders of fact and are thus not permitted to add even a scintilla of evidence to the record; rather we are strictly bound by the record before us and solely from that record we must make our decision.
State v. Ishmail (1978), 54 Ohio St.2d 402; 377 N.E.2d 500.
In that vein, our first query is whether the City set forth specific facts that demonstrate no issue of genuine material fact exists as to whether Officer Connor was on an emergency call. The City sets forth that Officer Connors witnessed what he believed to be a drug transaction, that Officer Connor initiated a pursuit of the suspected drug buyers, and that the accident with Colbert occurred during that pursuit. A police officer responding to his observations of a suspected drug transaction is certainly called to duty. Keeping in mind that an officer is on an emergency call when he is called to duty regardless of an inherent danger, the City satisfied its initial burden of setting forth specific facts that demonstrate no issue of material fact exists as to whether Officer Colbert was on an emergency call.
In response, Dresher requires Colbert to set forth a genuine issue of material fact in order to avoid summary judgment. The city has patently failed to do so. Colbert does not dispute that Officer Connor witnessed the exchange of money which he suspected to be a drug transaction, that Officer Connor pursued the suspected buyers, or that the accident occurred during that pursuit. Colbert solely opposes summary judgment on the grounds that Officer Connor was not on an emergency call because he did not respond to an inherently dangerous situation. Because inherent danger is not determinative of whether a police officer is on an emergency call, Colbert has failed to satisfy his reciprocal Dresher burden to set forth a genuine issue of material fact. Therefore, as a matter of law, Officer Connors was responding to an emergency call when the accident occurred with. Accordingly, Colbert's assigned error is without merit.
Specifically, Colbert's brief in opposition to the City's motion for summary judgment states:
The sworn testimony of Officer Connors at his Deposition demonstrates, at the very least, that there is a genuine issue of material fact as to whether Officer Connors believed the situation to which he was responding was dangerous, and demanded his immediate response.
* * *.
[R]easonable minds could conclude that Officer Connor's actions after he made such an observation were not the actions of a police officer who believed he had just observed an inherently dangerous situation that demanded his immediate response.
* * *.
If Officer Connors had believed that he observed an inherently dangerous situation which required immediate response, a reasonable person could assume that he would not have stopped at a stop sign, he would have radioed in a description of the vehicle he was pursuing, and radioed for back-up and activated his lights and sirens.
* * *.
[Underlining in original].
Judgment affirmed.
It is ordered that appellees recover of appellant their 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.
JAMES D. SWEENEY, P.J., CONCURS. ANNE L. KILBANE, J., DISSENTS. (SEE ATTACHED DISSENTING OPINION.)
On this appeal from an order of Judge Kenneth R. Callahan, the majority opinion misconstrues the import of the facts, and misinterprets the statute at issue. I would reverse the grant of summary judgment both because the majority's construction of R.C. 2744.01(A) eliminates the emergency from the definition of emergency call, and because the facts call into question the officer's credibility here, and create a dispute concerning whether the officers were in fact responding to any call to duty at the time of the collision.
Because the majority opinion omits essential details, the facts bear restating: At about 3:30 a.m. on December 6, 1998, Cleveland Police Officer Connors and his partner were investigating suspected drug activity at East 114th Street and Miles Avenue. He and his partner were on Hayes Court, on the west side of East 114th, and used binoculars to observe activity southbound to the corner of Miles. From their position they claim to have observed a man lean into a red Dodge occupied by two white males and saw an exchange of money. Although they did not see any drugs exchanged, Connors and his partner suspected a drug transaction and claim they intended to pursue the suspected buyers. The Dodge turned right onto Miles, westbound. Connors stated he did not pursue it directly but drove his patrol car eastbound out of Hayes Court onto East 114th and turned left just a short distance from its intersection with Harvard Avenue without operating his lights or siren. He claimed he planned to drive westbound on Harvard and parallel to the suspects' car in order to overtake it on East 93rd Street. He testified that he and his partner did not want to stop the Dodge in the East 114th area because they did not want to alert the suspected seller, who they also hoped to arrest after confiscating the drugs believed to be in the car. Connors did not call for backup to aid in apprehending either the suspected buyers or seller.
See Map, Exhibit A. Pursuant to Evid.R. 201(F), this court may take judicial notice of the street configuration in this area, and assess Connors' testimony in accordance. State v. Mays (1992), 83 Ohio App.3d 610, 614, 615 N.E.2d 641, 644.
Connors testified that at the corner of East 114th and Harvard, he brought his vehicle to a complete stop, looked both ways but noticed no traffic on Harvard, entered the intersection intending to turn left and was struck on the driver's side by an eastbound car in the eastbound lane. As a result of the collision, the cruiser traveled north and east across Harvard and struck a billboard located off the roadway. Colbert was driving a 1991 Lincoln Town Car and had the right of way at the time of the collision.
The issue here is whether the undisputed evidence shows that Connors was responding to an emergency call, which is defined in R.C. 2744.01(A) as follows:
Emergency call means 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.
R.C. 2744.02(B)(1)(a) provides a defense to negligent operation of a motor vehicle where the officer was responding to an emergency call * * *. Colbert's appeal raises two arguments: first, that a jury could disbelieve altogether the claim that Connors was pursuing any suspects at the time of the accident, and second, that even if the officers were going to eventually intercept the suspects, Connors' pursuit of the alleged drug buyers was not an emergency call pursuant to R.C. 2744.01(A).
The emergency call in this case would be the product of Connors' personal observation of a suspected drug transaction and, thus, Colbert argues, R.C. 2744.01(A) required Connors to observe an inherently dangerous situation demanding an immediate response before he claimed to be responding to an emergency call. The City contends, and the majority agrees, that the definition is not restricted only to those situations that fit the statutory language but instead includes any call to duty, including, but not limited to, those listed.
I do not dispute the fact that an emergency call can include situations not expressly listed in R.C. 2744.01, but I cannot agree that the phrase including, but not limited to allows any call to duty to qualify as an emergency call. If that were so, the statute would not bother to limit the exception to liability whatsoever. An emergency call must be different from an ordinary call.
While it may be too late for judges to correct the interpretational error, the punctuation used in R.C. 2744.01(A) indicates a difference between a dispatch and a personal observation. The statute contains a separate clause defining personal observations by peace officers of inherently dangerous situations that demand an immediate response * * * as an emergency call. The lack of a comma after the phrase personal observations by peace officers indicates the language that follows is uniquely applicable to personal observations, rather than to dispatches or citizen communications, which give rise to an unqualified duty to respond. I submit that courts have ignored this punctuation in order to avoid defining all dispatches, even those that obviously do not require immediate response, as emergencies. Whatever one's position regarding the missing comma, however, the phrase inherently dangerous situations that demand an immediate response * * * remains a part of the definition at some level.
See Posner v. Dept. of Pub. Safety, Ohio State Hwy. Patrol (Sept. 29, 2000), Franklin App. No. 99AP-594, unreported (no emergency in responding to accident site where citizens expressly reported no injuries).
The majority's definition errs by eliminating consideration of this phrase altogether, finding that any call to duty is an emergency call. This cannot be the legislative intent, as a respect for the language of that provision suggests we ask for something more than a generic call to duty when determining whether unlisted circumstances satisfy the definition of emergency call. The phrase including, but not limited to is intended only to avoid making the definition exclusive, while remaining instructional; it is not intended to be all-inclusive, or the legislature would have omitted any reference to emergency whatsoever.
I agree that Ohio courts consistently interpret R.C. 2744.01(A) to allow any urgent call to duty to satisfy the definition of emergency call when the call at issue is a police dispatch. These cases have refused to find that the definition of emergency call requires proof of inherent danger, but have instead focused on the need to accept an urgent dispatch at face value and respond immediately. This law, however, has developed exclusively in situations where officials were responding to dispatches, rather than personal observation. Moreover, while we have determined the issue as a matter of law where an officer is responding to a dispatch and has no personal knowledge of a situation's objective urgency, the existence of an emergency ordinarily is a question of fact. Where the claimed emergency call is not among those listed in R.C. 2744.01(A), but it is nonetheless argued that the facts at issue are included within that definition, courts should not be quick to expand the statutory definition as a matter of law — the existence of an emergency on particular facts should be an issue for a jury.
Agnew v. Porter (1970), 23 Ohio St.2d 18, 52 O.O.2d 79, 260 N.E.2d 830, paragraph two of the syllabus; Moore v. Columbus (1994), 98 Ohio App.3d 701, 706-707, 649 N.E.2d 850, 853-854; Pawlak v. Willoughby (Dec. 17, 1987), Cuyahoga App. No. 53181, unreported.
Agnew, supra.
As noted infra, the cases based on personal observation have not contributed to development of the legal issues here because factual danger was proved or not challenged.
Horton v. Dayton (1988), 53 Ohio App.3d 68, 72-73, 558 N.E.2d 79, 84-85.
The majority's construction of the statute effectively eliminates the phrase of inherently dangerous situations that demand an immediate response * * * altogether, violating a fundamental tenet of statutory construction that all words shall be given meaning — we do not assume that legislators include language in a statute simply as window dressing. In an attempt to buttress this offensive construction, the majority claims the existence of a body of case law establishing that an officer's personal observation need not satisfy any test of inherent danger or necessity of immediate response.
Analysis of Ohio law suggests that the term emergency is implicitly understood to exclude at least some calls to duty, and that distinctions are made when an officer is present and has the subjective ability to assess the nature of the situation. In every case where the facts concern police officers' personal observations of alleged emergencies, the existence of danger is apparent, and thus beyond dispute. Such cases generally involve observations of reckless driving, and pursuit is considered necessary in order to remove the dangerous driver from the road.
See, e.g., Brockman v. Bell (1992), 78 Ohio App.3d 508, 514 n. 2, 605 N.E.2d 445, 448 n. 2 (response to dispatch is based on subjective belief of urgency, rather than objective facts at scene; citing, inter alia, Agnew and Pawlak, supra).
Lewis v. Bland (1991), 75 Ohio App.3d 453, 457, 599 N.E.2d 814, 816; Rodgers v. DeRue (1991), 75 Ohio App.3d 200, 203, 598 N.E.2d 1312, 1314; Jacobs v. Cleveland (Dec. 11, 1997), Cuyahoga App. No. 72024, unreported.
Lewis, 75 Ohio App.3d at 456, 599 N.E.2d at 815.
The only case even suggesting a link between a dispatch and personal observation is Jacobs v. Cleveland, supra. Like many others, the Jacobs court cited the expansive call to duty definition espoused by the Franklin County Court of Appeals in Moore v. Columbus, without recognizing that Moore concerned a police dispatch to a reported burglary in progress. Nevertheless, the Jacobs court did not reach the issue of whether Moore applied to personal observations, because it found the conduct at issue (high speed travel, through two red lights, on an icy road) indisputably dangerous. The majority's citation to Ferrell v. Windham Twp. Police Dept. is equally unconvincing, because that court indicated that the officer observed and responded to reckless driving which, as already discussed, is an act considered to require immediate response because of the danger posed on public roads.
(Mar. 27, 1998), Portage App. No. 97-P-0035, unreported.
Lewis, supra.
Ohio Supreme Court cases decided prior to the adoption of R.C. 2744.01 defined emergency call with reference to whether the emergency was based on a dispatch or on the officer's personal observation. In Agnew v. Porter, supra, the Ohio Supreme Court explained that a police officer receiving a dispatch cannot be expected to assess the danger of the situation described, but instead must be allowed to respond at face value to the urgent call. As already noted, this distinction has consistently been upheld, as officers responding to urgent dispatches are held to be on emergency calls regardless of the actual state of affairs at the scene. What must be noted, however, is that cases recognizing the special nature of a dispatch necessarily suggest that some other rule applies in other circumstances, otherwise there would be no need to differentiate the dispatch as a special case.
Pawlak, supra.
In contrast to dispatch cases, the Ohio Supreme Court found, in Lingo v. Hoekstra, that personal observations could satisfy a statute's definition of emergency call, but refused to delete the requirement of an emergency from that definition. The court stated, as follows:
(1964), 176 Ohio St. 417, 27 O.O.2d 384, 200 N.E.2d 325.
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?
Id. at 421, 200 N.E.2d at 328.
Prior to its decision in Moore, the Franklin County Court of Appeals followed Lingo's directive in a case based on an officer's personal observation, stating:
The teaching of Lingo is that, while a police officer's observance of a traffic violator gives rise to a call to duty, not every such call to duty constitutes an emergency call, the existence of the emergency to be determined by the danger involved and the need for immediate action.
Maxey v. Lenigar (1984), 14 Ohio App.3d 458, 462, 14 OBR 578, 471 N.E.2d 1388, 1392.
Since Moore, the Franklin County Court of Appeals has continued to state that the existence of an emergency is not limited to dangerous situations, but that the question is whether an immediate response is required. While this construction might aid the analysis in dispatch cases, where the officer must only determine whether the call itself requests an immediate response, it states a distinction without a difference in personal observation cases. Where an officer is present, assessing the need for immediate response is hardly distinguishable from assessing the existence of danger, because an immediate response is necessary only to avoid some ill consequence which, for lack of a better term, can be described as danger.
Posner v. Dept. of Pub. Safety, supra.
Certainly my brethren would argue that Lingo is not controlling; neither, however, is the vague statutory directive including, but not limited to * * *. Such a phrase cries out for instruction concerning to what, indeed, it is limited. In this respect, Lingo and Agnew come much nearer to controlling authority than Moore, Hall-Pearson v. South Euclid, or other of the majority's body of case law.
(Oct. 8, 1998), Cuyahoga App. No. 73429, unreported.
Because the definition of emergency call must retain some semblance of the term emergency, lest it be indistinguishable from the definition of the term call, we must again review the facts to determine whether reasonable fact finders could dispute the existence of an emergency. Officer Connors testified that he specifically observed individuals in an attempt to catch them in the act of completing drug transactions on the morning in question. He claims the specific purpose of his actions was to confront the suspects, confiscate the suspected drugs, and make arrests. Without immediate action, he could not confiscate the evidence nor thwart the criminal conduct nor prove it occurred and, therefore, he asserts, there was an immediate need to apprehend the suspects in the Dodge before they disposed of the drugs and then to return to arrest the seller before he left the scene. This rationale, however, must be considered in light of the circumstances and the officers' actual conduct.
Because Connors claimed he needed to catch the suspected buyers without alerting the suspected seller, he testified that he attempted to overtake the suspect car by driving north on East 114th to Harvard and planned to parallel the suspect car westbound for over twenty blocks before catching up with it somewhere on East 93rd Street. (See Map, Exhibit A.) It is unclear how Connors divined that the Dodge, westbound on Miles, would reach East 93rd Street instead of turning onto one of the numerous other streets intersecting Miles between East 114th and East 93rd. Equally unclear is how Connors surmised that the Dodge would proceed northbound on East 93rd from Miles instead of turning southbound and continuing onto Broadway or Turney Road or continuing westbound on Miles to Broadway northbound or Warner Road southbound.
Connors also failed to explain how the suspected seller on East 114th Street would not be alerted to the police presence when Connors' vehicle pulled out of the alley onto 114th Street before attempting to turn onto Harvard, or why he expected the seller to remain in the area indefinitely while he and his partner tracked down the red Dodge, apprehended the suspects, questioned them, searched both them and their car, and took them into custody. Moreover, Connors did not explain why he did not simply back out of Hayes Court onto East 113th Street, proceed south to Miles and follow the red Dodge westbound, or why he did not request the assistance of another zone car to intercept the suspected buyers while he stayed at the scene and questioned the suspected seller. Finally, although Connors testified that suspected sellers frequently swallow drugs when approached by police and that the methods he used were necessary to ensure confiscation of the drugs, he did not explain why the suspected buyers would not do the same thing.
This highly unlikely scenario is so internally inconsistent that it cannot be considered undisputed. Certainly Mr. Colbert cannot present direct evidence rebutting Connors' story, but the testimony itself casts his credibility into question, and should be considered by a jury. The likelihood that Connors' method of pursuit would overtake the suspected buyers, given the configuration of the roadways in the area, is questionable, as is the likelihood that he would be able to confiscate drugs if he actually intercepted the Dodge that morning. Because one might question Connors' testimony concerning his actions in response to his observations, a jury reasonably could question his credibility altogether, and therefore question whether the officers were in fact responding to anything.
As noted, previous decisions defining emergency calls concern officers who are dispatched to certain locations via radio transmissions, with little or no detail concerning the emergent or dangerous nature of the situation. In those situations, we have been loath to require officers to guess at whether the dispatch truly qualifies as an emergency and have, therefore, generally construed police dispatches to require immediate response. This case, however, does not concern a recorded dispatch but only an officer's claimed personal observation of, and claimed response to, suspected criminal activity. Even if one questions whether a jury should have authority to assess the emergent nature of a situation based on an officer's personal observations, in this case there is a material question concerning whether the officers in fact observed any event, and whether they were actually responding to that event at the time of the accident. A jury is uniquely qualified to decide whether Connors' testimony concerning his actions supports the claim that he was pursuing suspects. I would find a material issue of fact in dispute and reverse the grant of summary judgment.
Pawlak, supra.