Winegar v. Greenfield Polce Department3/27/2002
B. Employee Immunity
Appellee Schraw contends that, even if causation can be established, as an employee of a political subdivision, he is entitled to immunity and, therefore, not liable to appellant.
An employee of a political subdivision is totally immune from liability pursuant to R.C. 2744.03(A)(6) unless, as alleged in this case, " is acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner," under R.C. 2744.03(A)(6)(b).
Thus, in order for Officer Schraw to be exposed to liability, the issue becomes whether he acted with malicious purpose, in bad faith, or in a wanton or reckless manner. See Fabrey v. McDonald Village Police Department (1994), 70 Ohio St.3d 351, 639 N.E.2d 31.
* an individual acts in a "reckless" or "willful and wanton" manner if he or she (1) perversely disregards a known risk, or (2) acts or intentionally fails to act when he or she has the duty to the other to do so, knowing or having reason to know of facts which would lead a reasonable person to realize not only that his or her 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 or her conduct negligent. Thompson v. McNeill (1990), 53 Ohio St.3d 102, 104-105, 559 N.E.2d 705, quoting Restatement of the Law 2d, Torts (1965) 587, Section 500; Poe v. Hamilton (1990), 56 Ohio App.3d 137, 138, 565 N.E.2d 887. Cole v. Crowthers (Oct. 12, 1994), Hamilton App. No. C-930767, unreported, quoting Thacker v. Franklin County (June 21, 1994), Franklin App. Nos. 94APE01-10 and 94APE01-11, unreported.
Appellant contends that Officer Schraw acted recklessly when he allowed Simmons and Fillmore to continue driving after the officer had that initial contact with them. Civ.R. 56 requires that we construe all the evidence in favor of appellant, the nonmoving party. See Welco Industries, Inc., supra. Appellees' motion for summary judgment was supported by the deposition of Officer Schraw and the transcript of the trial testimony of Floyd Simmons from the criminal prosecution of James Fillmore. Appellant included two affidavits with her memorandum in opposition to appellees' motion for summary judgment, to wit: affidavits of Simmons and Alfred Staubus, Pharm.D., Ph.D.
Simmons states in his affidavit that at the time he and Fillmore were stopped by Officer Schraw, Fillmore was driving and they each had consumed at least four or five beers, two Valiums, and smoked marijuana. Simmons further asserts in his affidavit that he was acting out of the ordinary by getting into the backseat of the police cruiser, demanding to be let out by banging on the partition glass, and then urinating between two nearby buildings upon being freed from the cruiser.
Simmons also asserts that, when he returned to Fillmore's car, Officer Schraw asked him if he could drive, to which Simmons responded in the affirmative. According to Simmons, although he smelled of alcohol, no effort was made to determine his sobriety and he did not recall being asked for his license or insurance information. After being released by the officer at approximately 4:00 p.m., Simmons and Fillmore changed positions in the vehicle at the home of the decedent so that Fillmore was once again driving. Simmons stated that subsequent to the accident, his blood-alcohol level was .13 percent and Fillmore's blood-alcohol level was .11 percent. In addition, according to Simmons' affidavit, both he and Fillmore tested positive for Valium, and the affiant also tested positive for marijuana.
Construing all the evidence presented in favor of appellant, it is apparent that reasonable
Page 1 2 3 4 5 6 7 8 9 10 Ohio DUI Attorneys
DUI Lawyers
|