Update: On December 27, 2016, the Supreme Court of Ohio handed down a merit decision in this case. Read the analysis here.

“Aren’t you really asking this court to adopt an “extreme and outrageous” proximate cause standard which would be in conflict with the immunity statutes set forth by the General Assembly?” Justice O’Donnell, to counsel for Deputy Chief DiPietro.

On February 9, 2016, the Supreme Court of Ohio heard oral argument in the case of Pamela Argabrite v. Jim Neer, et al., 2015-0348. At issue is the validity of the rule adopted by Ohio courts of appeals known as the “no proximate cause” rule, which states that if a third party is injured by a fleeing violator in the course of a police pursuit, the officer is not the proximate cause of those injuries unless the officer’s conduct was considered extreme or outrageous.

Case Background

Miami Township Police Officer Gregory Stites overheard a report that two men were stealing a television from an unoccupied house and loading it into a white Chevy Caprice with no hubcaps or front license plate. Recognizing the description of the car as belonging to Andrew Barnhart, who had fled from Stites and another officer in an incident three months earlier, Stites was directed to Barnhart’s address. Sergeant Rex Thompson had also responded to the address and parked in the driveway behind the Caprice.

When Barnhart saw Sergeant Thompson, Barnhart backed the Caprice into the empty cruiser, but was unable to get out of the driveway. Barnhart continued to drive the Caprice back and forth into the cruiser and the house until he eventually drove through the neighbor’s backyard. During this time, the passenger in the Caprice tried to escape on foot, but was apprehended by Thompson.

Once Barnhart re-entered the street, Stites activated his lights and sirens and pursued him. Miami Township Police Officer Jim Neer, having recently arrived on the scene, decided to join Stites in the pursuit. In the course of the ensuing pursuit, Neer and Stites witnessed Barnhart commit eleven traffic violations, such as running red lights and driving into oncoming traffic. Toward the end of the seven-mile chase, both Neer and Stites reported their locations and directions to Miami Township Deputy Chief John DiPietro, who had taken over control of the pursuit. However, during the pursuit, Neer and Stites did not relay their speeds or traffic conditions, nor were they asked to by DiPietro.

Deputy Tony Ball and Sergeant Daniel Adkins of the Montgomery County Sheriff’s Office were also providing assistance. Adkins heard the radio broadcast about the burglary and began to drive around the general area. He sought to follow the pursuit, thinking his assistance might be needed, but Barnhart went in a different direction from Adkins, so Adkins’ help was not needed.

As the pursuit continued, Neer and Stites observed Ball take lead of the pursuit once the Caprice had passed his post. However, Ball reported that he was not pursuing the Caprice with the intent to apprehend Barnhart, but only to keep the car in sight until Neer and Stites could catch up and take over the pursuit. After losing and regaining sight of Barnhart several times, Ball intermittently activated his emergency equipment while Neer and Stites took over the pursuit. Shortly thereafter, Barnhart crossed the center line and crashed head-on into Appellant Pamela Argabrite’s vehicle at a nearby intersection. Upon collision, Argabrite suffered serious injuries and Barnhart was killed.

At the time this incident occurred, the Miami Township Police policy was that a motor vehicle chase should not be initiated or should be discontinued if the risk to the public outweighed the risk from not initiating or discontinuing the pursuit. The Montgomery County Sheriff’s Office pursuit policy authorizes a pursuit only if the suspect has committed a felony involving the infliction or threatened infliction of serious physical harm.

Procedural Posture

All the defendants asserted that since their actions were neither wanton nor reckless, they were immune from liability under R.C. 2744.03(A)(6)(b). Additionally, following the no-proximate-cause-rule, which states that if a third party is injured by a fleeing violator in the course of a police pursuit, the officer is not the proximate cause of those injuries unless his conduct was considered extreme or outrageous, the defendants argued that they were also not the proximate cause of Argabrite’s injuries. The trial court granted both set of defendants’ motions for summary judgment, concluding that while the Miami Township officers were reckless, neither their conduct nor the Montgomery County officers’ conduct rose to the level of “extreme or outrageous” so as to satisfy the proximate cause rule.

Argabrite appealed, and in a split decision authored by Judge Hall and joined by Judge Welbaum, the Second District affirmed the trial court’s grant of summary judgment to the defendants. In doing so, the Second District found no need to determine whether there was a genuine issue of fact as to recklessness or proximate cause resulting from recklessness so as to entitle the officers to immunity. Instead, the Second District found the application of the no-proximate-cause-rule to be dispositive.  Even assuming that each set of defendants violated their own respective police department policies on when to initiate and/or terminate pursuit, the Second District confirmed the finding that no reasonable juror could conclude that any of the officers’ conduct was extreme or outrageous.

In his dissent, Judge Froelich stated that the no-proximate-cause-rule is contrary to traditional notions of proximate cause and should no longer be followed, and the extreme or outrageous standard required by the no-proximate-cause-rule effectively usurps the legislature’s determination under the political subdivision tort liability statute that recklessness is the appropriate level of conduct that would cause an employee of a political subdivision to lose his immunity.

Read the oral argument preview in this case here.

Key Statute and Precedent

R.C. 2744.03(A) (Political Subdivision Tort Liability and Exceptions)

In a civil action brought against a political subdivision or an employee of a political subdivision to recover damages for injury, death, or loss to person or property allegedly caused by any act or omission in connection with a governmental or proprietary function, the following defenses or immunities may be asserted to establish nonliability:

(6) In addition to any immunity or defense referred to in division (A)(7) of this section and in circumstances not covered by that division or sections 3314.07 and  3746.24 of the Revised Code, the employee is immune from liability unless one of the following applies:

(b) The employee’s acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner.

Lewis v. Bland, 75 Ohio App.3d 453 (9th Dist. 1991) (adopted the “no proximate cause rule” which states that “when a law enforcement officer pursues a fleeing violator and the violator injures a third party as a result of the chase, the officer’s pursuit is not the proximate cause of those injuries.”)

Whitfield v. Dayton, 167 Ohio App.3d 172 (2d Dist. 2006) (in the case of a police pursuit that results in injuries to a third party, the conduct by a police officer must be considered extreme or outrageous before proximate cause can be established.)

Anderson v. Massillon, 2012-Ohio-5711. (willful, wanton, and reckless behavior describe different degrees of culpability; defines each term; also holds the violation of a statute, ordinance, or departmental policy enacted for the safety of the public is not per se willful, wanton, or reckless conduct, but may be relevant to determining the culpability of a course of conduct)

At Oral Argument

Arguing Counsel

Kenneth J. Ignozzi, Dyer, Garofalo, Mann & Schultz, L.P.A, Dayton, for Appellant Pamela Argabrite

Joshua R. Schierloh, Surdyk, Dowd & Turner Co. L.P.A., Dayton, for Appellees Jim Neer and Gregory Stites

Lynne R. Nothstine, Assistant County Prosecutor, Montgomery County Prosecutor’s Office, for Appellees Tony Ball and Daniel Adkins

Kurt M. Irey, Schroeder, Maundrell, Barbiere & Powers, Mason, for Appellee John DiPietro

Argabrite’s Argument

In R.C. 2744.03 (A), the political subdivision tort liability act, and specifically (A)(6)(b), the legislature set the standard for police liability at wanton or reckless conduct. The Court of Appeals has usurped that role by adding the common law requirement of extreme and outrageous conduct into that statute. In addition to usurping the role of the legislature, the appeals court has failed to follow the decision in Anderson v. Massillon.

The facts of this case, the conduct of the officer, and the applicability of the statute indicate that there is a jury issue in this case. Both Miami Township and the Montgomery County Sherriff’s office have police pursuit policies, and both sets of policies were violated in this case. These pursuits are dangerous to innocent parties, the public, and also to the police themselves. This was just a stolen TV. The officers knew the name of the man who had stolen it, and where both his mother and grandmother lived. They could have picked him up at any time instead of initiating a high speed chase in a crowded area at a busy time of day.

Proximate cause is an issue in any tort case. In this case there is no question that this accident would not have occurred but for the officers pursuing this chase.

The court of appeals should be reversed in this case, and the “extreme and outrageous” standard abandoned. There is no legislative support for it. There is no justification for the judiciary to add a common law element onto what has been set forth by the legislature.

Township Officers Neer and Stites’ Argument

This court is being asked to determine whether the “no-proximate-cause-rule” is still a viable option for police officers in Ohio. The Supreme Court of Ohio has never addressed the issue.

The issue of immunity and the issue of proximate cause are two separate co-exiting concepts. In Anderson v. Massillon, the court clarified and re-defined the exceptions-to-immunity terms of reckless, willful, and wanton, so that employees in political subdivisions could understand the standards as guides for immunity. If an officer is not reckless, and is immune, then proximate cause is not even considered.

The no-proximate-cause-rule goes to the proximate cause of the accident. Even if there is a question of fact as to recklessness, the no-proximate-cause-rule would eliminate the immunity rules because the offender, not the officers, was the proximate cause of this accident. The only time this rule applies is in this one isolated circumstance, where there is harm to a third party caused by a fleeing violator without any contact by a police vehicle.

Officers Neer and Stites properly followed the policies of the Miami Township Police Department. The determination of whether or not they can engage in the pursuit is based on a number of offenses delineated in the policy, one of which was burglary. Further, whether they followed these policies goes only to the question of negligence; not recklessness. The proximate cause of the accident in this matter was Barnhart, the fleeing felon. It was not foreseeable to the officers that Barnhart would cross the center line and cause harm to a third party.

Without the no-proximate-cause-rule, criminals would be emboldened to act dangerously, knowing that the faster they drive, the more traffic violations they commit, they will ensure themselves of their freedom. That is not sound public policy.

County Officers Ball and Adkins’ Argument

The question of whether there is immunity is a different question than whether the plaintiff can win her case. The immunity statute sets forth the standard for the duty of care that the political subdivision employee must adhere to. It does not discuss proximate cause. Because the immunity statute does not deal with proximate cause, the judicially created no-proximate-cause-rule has a bearing on how causation has to be proven. That rule does not in any way interfere with, have a bearing on, or impede the operation of the immunity statute. There can and should be a separate rule on this for police, because sometimes they have to pursue people.  Such a rule would not open Pandora’s box.  It would only apply in a situation where there is a pursuit in which the fleeing person actually causes the accident, not where the officer himself is the direct cause.

Speaking specifically to the facts of this case, the trial judge decided that some portion of the Miami Township officers’ actions may have been reckless. He did not make a decision regarding the recklessness or lack thereof for the sheriffs’ deputies. He did say that nothing the sheriff’s office people did was extreme or outrageous, and the court of appeals agreed on that point, and should be affirmed.

Township Officer DiPietro’s Argument

Officer DiPietro had a very limited role in the overall pursuit here. He was the deputy chief of police at the time, but was not involved in the pursuit at the outset. He only assumed a supervisory role after the road patrol supervisor, Sargent Thompson, was in a violent encounter with the fleeing burglary suspect and DiPietro took control of the pursuit at that time. He then issued directions to the officers to call in their locations and directions of travel. The trial court’s finding on this point was that nothing in DiPetro’s conduct was anything more than negligence, so there would be nothing to go to a jury in his case.

The issue of immunity and the issue of proximate cause are two separate issues. The first determination is whether immunity applies. And the trial court’s determination that at best DiPietro was negligent means there need be no proximate cause determination in his case. So summary judgment should be affirmed as to him under any standard.

What Was On Their Minds

Statutory Immunity and Exceptions: Reckless and Wanton

Is the plaintiff suggesting that this high speed chase in and of itself was wanton and reckless, even though it was the tortfeasor who hit the plaintiff, not the officers themselves, asked Justice Lanzinger? (yes, the plaintiff was making just such an argument.)

Why is it clear that the immunity statute applies to police conduct, asked Justice French?

Why isn’t Anderson v. Massillon dispositive of this case, asked Justice Pfeifer, commenting that Justice O’Donnell had written an extensive opinion about when immunity would be taken away under the statute. Why should the court allow the Second District to engraft another standard on top of that, Pfeifer asked, noting that the Anderson decision wasn’t very old.

I believe both this court and the General Assembly have said if we are going to have immunity in these kinds of cases, there must not be wanton or reckless conduct. If either of those is found, there is no immunity, noted Justice O’Neill. Why should something called “extreme and outrageous,” authored by a court of appeals, be factored into the mix where neither the Ohio General Assembly nor this court have said that is the law of the land? Shouldn’t the jury decide at some point whether the decision not to call off the chase that ended up with the death of the suspect and the injury to the innocent person was or was not wanton or reckless?

Hasn’t the General Assembly set the policy for Ohio in regard to these pursuits, asked Justice O’Donnell? They have said you may engage without fear of liability unless your conduct is reckless or wanton or willful. They have said, that’s the standard we want you to follow and they’ve told that not only to police officers, but to all the citizens and all the criminals, and frankly, all the judges. And that’s really what the essence of this case is, he commented. Isn’t the question whether the standard is extreme and outrageous conduct, or reckless conduct, which is what the General Assembly said, O’Donnell commented, in a key observation of the day. Later, he asked if the question of immunity is determined first, and only if the answer is no, is there a determination of reckless conduct to assess liability. What duty do the police officers owe to a fleeing felon, he asked?

The Facts of the Case

Plaintiff’s counsel repeatedly tried to discuss the facts; several justices beginning with Justice French insisted the facts were not important, just the applicable legal standard. He persisted, nonetheless.

Is the plaintiff here just asking for a trial, asked Justice O’Neill?

Isn’t part of the facts here that the decedent was initially using his vehicle as a weapon, commented Chief Justice O’Connor. When she asked if plaintiff’s counsel agreed with that, he said absolutely not, noting that in Barnhart’s initial encounter with the police officers, no officer was injured. They had a little back-and-forth on this point.

The No-Proximate-Cause-Rule

Has the legislature ever modified this rule, asked Chief Justice O’Connor?

Has the Supreme Court of Ohio ever addressed it, asked Justice Pfeifer?

Regular old Law School Proximate Cause. Remember Palsgraf?

Wasn’t it the fleeing felon that was the proximate cause of the plaintiff’s injury here, asked Justice Lanzinger? Chief Justice O’Connor later asked the same thing.

Is this an intervening cause case, asked Justice O’Donnell?

So common law proximate cause in the state of Ohio means one thing for everybody except police officers in hot pursuit, asked Justice Pfeifer? And then there is a different common law standard of how we explain proximate cause? In hands down my favorite moment of the day, Justice Pfeifer asked counsel for Seer and Stites whether proximate cause went back to Palsgraf.  Honestly, Mr. Shierloh  looked blank.  My torts students wouldn’t have. Justice Pfeifer  continued, asking why isn’t just straight foreseeability the question when you get to proximate cause and isn’t that a jury question? But wait, it gets better. A little later on, Justice O’Neill chimed in, who in this case has followed the Palsgraf standard of the “risk reasonably to be perceived defines the duty to be obeyed.” Who has made that weighing analysis in this case as of today? A plus for him in Cardozo quotes.

If the officers themselves in the high speed chase went left of center and hit a third party, we’d be talking about something totally different, correct, asked Justice Lanzinger?

Extreme and Outrageous Conduct

What is the origin of this standard, asked Justice O’Donnell? Has this standard ever been adopted by the General Assembly? Has this court ever made a proclamation about it? What should the court do with that standard?

By interjecting extreme and outrageous, is the Whitfield case trying to expand immunity beyond the wanton and reckless standard that the legislature has already spoken to, asked Justice O’Neill, in a key question of the day. Doesn’t that give a blank check to political subdivisions and their employees? And take the issue away from a jury? Later, he commented that the problem was that both the trial court and the appeals court had relieved themselves of the responsibility of even looking at wanton and reckless. (Mr. Shierloh did not agree.)

Is the statutory standard of malicious purpose, in bad faith, or in a reckless or wanton manner the equivalent of extreme and outrageous conduct, asked Justice Lanzinger? Aren’t the statutory standards very high standards? Could wanton be defined as extreme or outrageous?

The Police

Aren’t there certain statutes that suggest that the legislature has put law enforcement and public safety personnel in a different category, asked Justice French? Isn’t it the duty of a police officer to pursue a suspect? Doesn’t that duty differentiate law enforcement from other political subdivision employees, and take us out of the political subdivision immunity provision?

The Pursuit Policies

How long have these been on the books, asked Justice Pfeifer? Then he really got into it with Mr. Shierloh, in an extended colloquy in which Pfeifer’s disgust with these pursuits was palpable. He gave several long examples and hypotheticals of tragic results from such high speed chases as examples of what happens when the police don’t follow these policies.  Mr. Shierloh insisted that they had.

Here’s a sampling:

Justice Pfeifer:

“When you are chasing somebody at a high rate of speed through a densely populated area, all kinds of bad things are foreseeable aren’t they? This individual stole a TV and he’s dead—that’s a pretty bad consequence of its own, let alone the plaintiff’s injuries.”

Mr. Shierloh:

“There were tragic results.”

Justice Pfeifer:

“And reasonably foreseeable, aren’t they?”

And a bit later he started in again, asking Mr. Shierloh if under his view, a police officer chasing a bunch of kids for joyriding, who run into a tree and kill themselves, he would argue no liability because of no proximate cause? (yes he would)

Chief Justice O’Connor commented that while violation of the pursuit polices might result in disciplinary action, it wasn’t necessarily indicative of wanton or reckless conduct, was it? (No, said Mr. Shierloh, relieved to be out of Justice Pfeifer’s sightlines for a bit.) Violation of the policy would not necessarily relate to the violation of the statutory standard? A mere violation of policy or procedure in the department is not dispositive of the issue here?

And then, back to Justice Pfeifer:

“You (Mr. Shierloh) are attributing to criminals a much higher degree of intelligence than I think would be reasonable. I never heard of this rule until we saw this case. You think criminals know something that the Second District has as a rule that I personally was unaware of?”

Has anyone every decided whether or not the decision to pursue was reckless or wanton, asked Justice O’Neill? Couldn’t an argument be made that the person in charge of the entire chase at least had a duty to consider calling off the chase?

Would any duty owed by police officers to a fleeing felon be outlined in the policy guidelines established by the department, asked Justice O’Donnell?

How It Looks From The Bleachers

To Professor Emerita Bettman

Whew! Another fifty minute argument and another very hot bench.

I think the justices will all agree that an appellate court decision cannot override the legislative determination set forth in R.C. 2744.(A)(6)(b) about when a police officer loses immunity. I think they will also agree that the immunity issue must be decided first, before any proximate cause determination is made.  The appeals court majority held that there was no need to address the question of whether the officers were immune under the Political Subdivision Tort Liability Act, because proximate cause cannot be met under the extreme and outrageous standard in the no-proximate-cause rule, and was therefore dispositive.  I predict that approach is going to be rejected. Even one of the lawyers for the police officers stated that the immunity issue must be determined first. One other point of agreement for the justices—I think the summary judgment as to Officer Adams is likely to be upheld.  His role in this seems minimal.

But even if the court disavows the “no-proximate-cause-unless-extreme-or-outrageous-conduct rule, which it has never adopted and I don’t think will, I see a very sharp split on how proximate cause should be analyzed in this case. This might be a good time for a reminder that there can be more than one proximate cause of an injury. Another good thing to remember is if there is any apportionment of liability in this case, the fleeing felon, Barnhart is clearly going to get the lion’s share, or maybe all of it.

Justice Pfeifer was really on a tear—he sees the police as totally complicit in what happened. He would find the actions of the police in pursuing a non-violent offender (hey this wasn’t Jack the Ripper on the loose) whose whereabouts were known, to be reckless at a minimum, and clearly ­a proximate cause of the injury to the plaintiff, or at least will find there is a jury question on this point. I think Justices O’Neill and O’Donnell will join Justice Pfeifer in this view. If I had a vote, I would, too. Justice O’Donnell clearly takes much pride in the Anderson decision, as well he should, as it is much cited. And he seemed to see the no-proximate-cause-rule as an improper infringement on the legislative domain.

Justice French seems to have the most extreme position on the other side. She wasn’t even convinced that the immunity statute covers police officers, giving a few examples of statutes that treat them differently. I think she is incorrect on that point, but don’t think she will be at all swayed by Justice Pfeifer’s position, regardless. Chief Justice O’Connor, and to a slightly lesser extent, Justice Lanzinger, seem to think that even using a standard proximate cause analysis, Barnhart, the fleeing felon, and not the police, was the proximate cause of the harm to the plaintiff. That leaves the ever-silent Justice Kennedy in the balance.

There may also be disagreement over the effect of a violation of the pursuit policy. One of the syllabus holdings in Anderson was that violation of a departmental policy is not per se willful, wanton, or reckless conduct, but may be relevant in determining the culpability of a course of conduct. There may well be a difference of opinion as to officers Neer, Stites, and Ball (who were actually in the pursuit) as opposed to Deputy Chief DePietro, who seems to have lesser culpability.  But Justice O’Neill put his finger on a key question as to DiPietro -couldn’t an argument be made that the person in charge of the entire chase at least had a duty to consider calling off the chase? If failure to do that was simple negligence, DiPietro would be off the hook, but if more than that, he is back in the mix.

This would be an excellent exam question for a torts class.

To Student Contributor Danielle List

Counsel for Argabrite was very relaxed, but his stream of consciousness presentation made his argument difficult to follow. While the key legal issue in this case is determining what standard should apply for proximate cause in police pursuit cases, Argabrite continued to weave in the alternative arguments as to what level the officers’ conduct constituted. Clearly frustrated, Justice French tried to deter Argabrite from his religious review of the facts so they could focus on determining the standard that would apply to all police pursuit cases. Despite Justice French’s warning about straying from the legal issue, the rest of the bench seemed to push back the most on Argabrite’s characterization of the officers’ conduct in this case. The Chief, in particular, didn’t seem to buy Argabrite’s claim that the officers were anything more than negligent.

Things heated up when counsel for Miami Township took the podium. He barely got two words out before Justice Pfeifer started drilling him on the dangerous nature of police pursuits. While both Justice Pfeifer and Justice O’Neill made some not so subtle remarks that the no proximate cause rule was contrary to law, Miami Township did a good job explaining, at least theoretically, why the no proximate cause rule did not usurp the standard for immunity in the Political Subdivision Act. Emphasizing that immunity and proximate cause were two distinct concepts, Miami Township asserted that the no proximate cause rule had absolutely no bearing on the grant of immunity.  This didn’t seem to go over well with Justice O’Neill who brought up that, in reality, courts are relieving themselves of even looking at immunity because of stringent extreme or outrageous standard required by the no proximate cause rule.

Even though the Montgomery County officers had considerably less involvement in the police pursuit than the Miami Township officers, counsel for Montgomery County avoided getting entrenched in the facts, and also argued that the no proximate cause does not change immunity whatsoever. Reminding the court that that the no proximate cause rule was limited to police pursuit situations, she reassured that there was no threat of a Pandora ’s Box from such a rule.

This looks like a win for Argabrite. Several of the justices were quite vocal about their disapproval of the no proximate cause rule as being contrary to traditional notion of proximate cause as well as interfering with the standard for immunity in the Political Subdivision Act. However, while Argabrite seems to have the legal issue in the bag, she still may have a battle arguing that the Officers behavior rose to the level of reckless or wanton so as to lose their immunity. In line with Anderson, and as reiterated numerous times on the bench, a violation of the pursuit policies is not necessarily anything more than negligence.