Opinion
No. 91-13411.
Decided March 16, 1993.
Dale A. Kline, for plaintiff.
Lee Fisher, Attorney General, and Catherine M. Cola, Assistant Attorney General, for defendant.
On August 29, 1990, during the course of being pursued by an Ohio State Highway Patrol ("OSHP") trooper, plaintiff's decedent was involved in a fatal one-car accident. Plaintiff filed the above-captioned action seeking damages from OSHP for the injuries sustained by the decedent. The essence of plaintiff's claim for a right to relief is that the OSHP's pursuit policy required that the trooper terminate the pursuit prior to the accident, and that, by failing to do so, the trooper was negligent and acted in a wanton or willful manner.
This matter came on for trial regarding the sole issue of liability on January 25, 1993. Upon consideration of the evidence and arguments of counsel, the court renders the following findings of fact and conclusions of law.
FINDINGS OF FACT
(1) In August 1990, plaintiff's decedent, Tiffany Stone, and her friends Christina Eberhardt and Greta Miller were all sixteen years old, and resided with their respective parents in Port Clinton, Ohio;
(2) In July 1990, decedent's father bought her a 1989 Ford Probe ("Probe") for her sixteenth birthday;
(3) On August 28, 1990, at approximately 6:00 p.m., Miller, Eberhardt, and decedent traveled from Port Clinton, Ohio to a mall in Sandusky, Ohio in decedent's Probe. At the mall, the three girls encountered a group of friends. At the request of the girls and with their money, the friends purchased alcoholic beverages for the three girls. The girls consumed alcoholic beverages in the parking lot at the mall;
(4) At approximately 9:00 p.m., the three girls left the mall in the Probe. They traveled to a "back road" near the mall where they continued to consume alcoholic beverages;
(5) The three girls next proceeded to Johnny Angels, a bowling alley/pool hall located in Sandusky, Ohio. They left Johnny Angels at approximately 10:12 p.m., and commenced driving back to Port Clinton, Ohio, in the Probe. Decedent was driving the Probe;
(6) Decedent's curfew, which was strictly enforced by her father, was 10:30 p.m. Eberhardt was to spend the night at decedent's home. Miller lived approximately one block from decedent's home. The trip from Sandusky, Ohio to Port Clinton, Ohio ordinarily takes approximately twenty minutes;
(7) Decedent commenced driving on State Route 2 ("S.R. 2") northwestbound (see map marked "Exhibit A" attached hereto) at a high rate of speed. S.R. 2 is a four-lane highway with two lanes traveling in each direction separated by a median. The speed limit on S.R. 2 was 55 m.p.h. At approximately 10:15 p.m. OSHP Trooper Audali Torres was traveling in his cruiser on S.R. 2 southeast-bound when he "clocked" with a radar gun two cars traveling on S.R. 2 northwestbound at speeds of 97 m.p.h. The first car that Torres clocked was the Probe; the second car was immediately behind the Probe;
(8) Torres crossed the median, engaged his overhead red lights, and began pursuing the two cars. The second car immediately pulled to the side of the road and stopped. The Probe continued at a high rate of speed. Torres then engaged his siren and continued the pursuit;
(9) Miller and Eberhardt pleaded with decedent to pull to the side of the road and stop. Decedent did not respond;
(10) The pursuit continued on S.R. 2 northwest, and then went on S.R. 2 north across the Edison bridge. The Edison bridge crosses Sandusky Bay. Once across the bridge, the pursuit continued on S.R. 2 west;
(11) The Probe exited S.R. 2 onto State Route 53 ("S.R. 53") northbound. As Torres entered onto S.R. 53 northbound, he observed that the Probe's lights were off. S.R. 53 is a two-lane highway with one lane traveling in each direction;
(12) The pursuit continued on S.R. 53 northbound towards Catawba Island. The Probe's lights remained off. As the Probe crossed the S.R. 53 northbound causeway to Catawba Island, Torres observed the Probe traveling on the right berm and passing motor vehicles proceeding in the same direction as the Probe;
(13) The speed of the pursuit varied from ninety-five m.p.h. to one hundred five m.p.h. Throughout the pursuit, the closest that Torres got to the Probe was approximately five car lengths behind the Probe. The time of the pursuit totalled five minutes. The distance of the pursuit was approximately nine miles;
(14) At S.R. 53 northbound and Cemetery Road on Catawba Island, the Probe spun out of control and struck a tree. The Probe was immediately engulfed in flames. Torres and a Catawba Island policeman arrived at the scene approximately one minute after the crash. Torres and the Catawba Island policeman, at some personal risk, were able to remove Eberhardt from the Probe. Unfortunately, the Probe exploded before they could remove decedent and Miller. Both decedent and Miller were fatally injured;
(15) An autopsy of decedent was conducted by the Lucas County Coroner's Office. The autopsy report indicates that decedent had a blood-alcohol level of 0.13 percent.
CONCLUSIONS OF LAW
(1) Plaintiff's first claim for a right to relief sets forth an action sounding in negligence. In a claim predicated on negligence, plaintiff has the burden of proving by a preponderance of the evidence the existence of a duty, the breach of that duty, and injury resulting proximately therefrom. Strother v. Hutchinson (1981), 67 Ohio St.2d 282, 21 O.O.3d 177, 423 N.E.2d 467.
Plaintiff asserts that during the course of the pursuit, Torres had a duty to comply with OSHP's pursuit policy, and that he failed to do so, resulting in decedent's fatal injuries. More specifically, plaintiff asserts that OSHP's pursuit policy required that Torres terminate the pursuit prior to the accident, and if this would have been done, the accident would not have occurred.
A governmental agency's internal policies are not law, and, thus, do not establish a duty. Kirwin v. Adjutant General (Feb. 25, 1992), Court of Claims No. 90-09860, unreported. Accordingly, the court finds that OSHP's pursuit policy did not set forth Torres's duty during the course of the pursuit.
R.C. 5503.02(A) provides in part that OSHP's employees shall enforce the traffic laws. When pursuing a traffic law violator, an OSHP employee has a duty to "drive with due regard for the safety of all persons using the streets or highways." R.C. 4511.24; 4511.03; 4511.04; 4511.452; 4513.21. Accordingly, the court finds that Torres had a duty to attempt to pursue and apprehend decedent when he clocked her car traveling in excess of the speed limit, and, during the course of such pursuit, Torres had a duty to drive with due regard for the safety of decedent and all other vehicles traveling the same course.
The court finds that plaintiff failed to prove by a preponderance of the evidence that by not terminating the pursuit prior to the accident, Torres failed to exercise due regard for the safety of decedent. In fact, the court finds that once decedent turned off the lights to her vehicle and proceeded to travel at speeds of ninety-five m.p.h. to one hundred five m.p.h., the duty of due regard for other motorists required Torres to continue the pursuit to serve warning to other motorists. As a result, the court finds that plaintiff failed to prove by a preponderance of the evidence that Torres was negligent.
Even if plaintiff is correct in his assertion that OSHP's pursuit policy established Torres's duty, the court would still not find that Torres was negligent for failing to terminate the pursuit prior to the accident. OSHP's pursuit policy in part is as follows:
" PURPOSE
"To provide guidelines for the pursuit and apprehension of fleeing violators.
" POLICY
"A `pursuit' as used in this policy, is an attempt by a sworn officer driving a marked patrol vehicle, to apprehend the occupant(s) of another vehicle, providing the driver of such vehicle is aware of the attempt and resisting apprehension by maintaining or increasing the speed of the vehicle and ignoring the sworn officer's direction to stop.
" PRIMARY CONSIDERATIONS:
"1. The primary goal of the Division is the protection of life and property. If a motor vehicle pursuit exposes any officer, member of the public or violator to unnecessary risk, then the pursuit is inconsistent with that goal and should be terminated.
"2. Officers of this Division will pursue violators within the limits of safety, while utilizing other methods to identify or arrest the individual.
"3. A pursuit is only justified when the necessity of the apprehension outweighs the level of danger created by the pursuit.
"4. The following information must be taken into consideration prior to initiating or continuing a pursuit:
"a. Seriousness of the offense;
"b. Possibility of apprehension;
"c. Area the pursuit will take place in, i.e., business, residential, rural etc.;
"d. Current traffic volume;
"e. Current road and weather conditions; and
"f. What, if any, assistance is available to the officer.
"5. Section 5503.02 of the Ohio Revised Code requires that Highway Patrol officers enforce criminal and traffic laws within our jurisdiction. It is not the intention of this policy to avoid that responsibility, rather the intent is to provide general guidelines for pursuit that will help ensure apprehensions within the limits of safety.
" PURSUIT TERMINATION:
"1. A high speed pursuit shall be terminated under any of the following conditions:
"a. The suspect(s) identity has been established to the point that a later apprehension can be accomplished, and there is no longer any need for immediate apprehension.
"b. The prevailing traffic, roadway and environmental conditions indicate the futility of continued pursuit.
"c. If, as previously stated, in the opinion of the primary pursuing officer or a supervisor, a clear and unreasonable danger to the officer(s), suspect(s) and/or the general public is created by the pursuit apprehension.
"d. The suspect vehicle's location is no longer known.
"2. The termination of a pursuit does not prohibit the following of a vehicle at a safe speed, or remaining in an area to re-initiate pursuit if the opportunity and conditions permit."
The court finds that plaintiff has failed to prove by a preponderance of the evidence that Torres violated the above provisions by not terminating the pursuit prior to the accident;
(2) The OSHP is immune from liability where injury is inflicted upon an individual by a trooper engaged in a pursuit unless the trooper operated his cruiser in a wanton or willful manner. Baum v. Ohio State Highway Patrol (Dec. 2, 1992), Court of Claims No. 91-07275, unreported (citing York v. State Highway Patrol, 60 Ohio St.3d 143, 573 N.E.2d 1063);
(3) The court finds that the trooper did not operate his cruiser in a wanton or willful manner. The court further finds that plaintiff failed to prove by a preponderance of the evidence that during the course of the pursuit, Torres operated his cruiser in a negligent manner;
(4) Decedent had a duty to exercise ordinary care for her own safety. Sovich v. Ohio Dept. of Liquor Control (July 9, 1992), Court of Claims No. 91-06716, unreported. The court finds that decedent failed to exercise ordinary care for her own safety, and such was the sole proximate cause of her death.
Judgment for defendant.
FRED J. SHOEMAKER, J., retired, of the Franklin County Court of Common Pleas, sitting by assignment.