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Winegar v. Greenfield Polce Department3/27/2002
reck, his blood-alcohol level was .13 percent and that he tested positive for Valium and marijuana. Simmons further states that Fillmore's blood-alcohol level was .11 percent and that he tested positive for Valium.
Because the January 17, 1997 complaint contained federal causes of action, appellees removed the case to the United States District Court for the Southern District of Ohio, Western Division. On June 10, 1998, the federal court granted appellees' motion for summary judgment on the federal claims and dismissed the state law claims without prejudice.
On March 2, 1999, appellant timely refiled her state law claims against appellees in the Highland County Court of Common Pleas. Appellees filed a motion for summary judgment on May 19, 1999, on the basis that both appellees were entitled to immunity pursuant to R.C. 2744.01 et seq. A memorandum contra to the motion was filed on June 7, 1999, and a reply was filed by appellees on June 15, 1999.
The trial court granted the motion for summary judgment on June 14, 2000, finding that the police department was immune from liability under R.C. 2744.02(A), 2744.03(A)(3), and 2744.03(A)(5) and that Officer Shraw was immune pursuant to R.C. 2744.03(A)(3) and (5).
Appellant timely filed a notice of appeal and presents the following assignment of error for our review.
THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF APPELLEE GREENFIELD POLICE DEPARTMENT AND APPELLEE GARY SCHRAW WHEN GENUINE ISSUES OF MATERIAL FACTS EXIST AS TO WHETHER OR NOT APPELLEES ARE IMMUNE FROM LIABILITY PURSUANT TO R.C. §2744.02 AND §2744.03.
A de novo review of the record must be conducted as we are reviewing the trial court's granting of summary judgment pursuant to Civ.R. 56. See Renner v. Derrin Acquisition Corp. (1996), 111 Ohio App.3d 326, 676 N.E.2d 151.
As the Supreme Court of Ohio has stated
Under Civ.R. 56, summary judgment is proper when "(1) no genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party." Welco Industries, Inc. v. Applied Cos. (1993), 67 Ohio St.3d 344, 346, 617 N.E.2d 1129, 1132 (citations omitted). Therefore, we give no deference to the judgment of the trial court. See Renner, supra.
Since this case involves the potential liability of two separate parties - the Greenfield Police Department and Officer Schraw - we will separately address the granting of summary judgment in favor of each party.
I. Greenfield Police Department
The Supreme Court of Ohio has stated that "The Political Subdivision Tort Liability Act, as codified in R.C. Chapter 2744, sets forth a three-tiered analysis for determining whether a political subdivision is immune from liability." Cater v. City of Cleveland (1998), 83 Ohio St.3d 24, 697 N.E.2d 610. R.C. 2744.02(A) first presents the general rule that political subdivisions are not liable in damages for a person's personal injuries or death.
(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 subd
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