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Winegar v. Greenfield Polce Department3/27/2002
minds could reach different conclusions regarding whether Officer Schraw acted recklessly, thereby exposing himself to liability for damages. We find that reasonable minds could conclude from Simmons' testimony that he was in fact intoxicated, smelled of alcohol, and was acting out of the ordinary, thereby making Officer Schraw aware of "facts which would lead a reasonable person to realize not only that his * conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his * conduct negligent." Cole, supra.
Appellant argues that the affidavit of Dr. Alfred Staubus is inadmissible for the purposes of summary judgment because it does not comply with the requirements of Civ.R. 56(E), Evid.R. 702, 703, and 705. However, since we have already found that Simmons' affidavit is sufficient to create a question of fact as to whether Officer Schraw acted recklessly, we need not address the admissibility of the Staubus affidavit, and decline to do so.
Appellant has presented evidence, which when construed in her favor, could lead reasonable minds to conclude the following: 1) the officer acted recklessly by failing to conduct sobriety tests on Fillmore and Simmons at the initial stop, and/or by failing to further prevent Fillmore and Simmons from driving that night; and, 2) his failure to do so was a proximate cause of the wreck that killed Benjamin Shiltz. Thus, summary judgment in favor of Officer Schraw was inappropriate. Accordingly, we reverse the judgment of the trial court as to Appellee Schraw.
Accordingly, the judgment of the trial court is AFFIRMED IN PART, REVERSED IN PART, and REMANDED for further proceedings not inconsistent with this opinion.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED IN PART AND REVERSED IN PART and the cause remanded to the trial court for further proceedings consistent with this opinion, costs herein taxed equally between the parties.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the HIGHLAND COUNTY COURT OF COMMON PLEAS to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of this Entry.
A certified copy of the entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.
Kline, J.: Concurs in Judgment and Opinion as to Assignment of Error I; Concurs in Judgment Only as to Assignment of Error II.
Abele, P.J.: Concurs in Judgment and Opinion as to Assignment of Error I; Dissents as to Assignment of Error II.
David T. Evans, Judge
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