Update: On November 20, 2019, the Supreme Court of Ohio handed down a merit decision in this case.  Read the analysis here.

Read an analysis of the oral argument here.

On June 12, 2019, the Supreme Court of Ohio will hear oral argument in Renee McConnell et al v. Donald C. Dudley, Jr. et al.,2018-0337.  At issue in this case is whether the exception to political subdivision immunity in R.C. 2744.02(B)(1) includes negligent  failure to adequately hire, train, or supervise a police officer.

Case Background

While pursuing a criminal suspect in a police chase, Coitsville Township Police Officer Donald Dudley entered an intersection without checking left or right for traffic. Before entering the intersection, Officer Dudley had activated the cruiser’s lights and sirens, but had not activated the enhanced siren. Because Officer Dudley was trying to report his location to the radio dispatcher, he was looking at the street signs and did not see that the traffic light was red when he entered the intersection. As a result, Officer Dudley’s vehicle collided with Renee McConnell’s vehicle, severely injuring McConnell. At the time of the collision, Officer Dudley was driving between 37 to 41 mph while McConnell was traveling between 37 and 40 mph. The posted speed limit was 35 mph.

Before the car crash, Officer Dudley had received very little training regarding motor vehicle pursuits. During the pursuit, Officer Dudley had tried to contact his supervisor for advice on how to proceed. Contrary to a department policy, no supervisor was on duty during the pursuit.

Renee McConnell (“McConnell”) and her husband and children sued Officer Dudley, the Coitsville Township Police Department and Coitsville Township Board of Trustees, alleging negligence, willful and wanton misconduct, inadequate pursuit training and policies, and loss of consortium. The defendants filed a motion for summary judgment, on the grounds that each defendant was entitled to immunity. Mahoning County Court of Common Pleas Judge Anthony M. D’Apolito denied the motion, finding genuine issues of material fact as to whether Officer Dudley’s actions were willful, wanton, or reckless in entering the intersection, and whether he was properly trained and supervised.

The Appeal

In a unanimous decision written by Judge Cheryl Waite, and joined by Judges Gene Donofrio and then-Judge Mary DeGenaro, the Seventh District Court of Appeals affirmed in part and reversed in part. The appeals court affirmed the denial of summary judgment to the Township Board of Trustees and the Police Department (hereafter “Township Defendants”), finding genuine issues of material fact on whether the Police Department was negligent in training and supervising Officer Dudley, but reversed as to Officer Dudley individually, finding no claim of individual liability against him. The issue of Officer Dudley’s personal liability was denied review by the Supreme Court of Ohio. The Seventh District also found that a genuine issue of material fact existed about whether Officer Dudley’s actions during the emergency call constituted willful and wanton misconduct, but that issue is not before the Court in this appeal.

Votes to Accept the Case

Yes: Justices French, Kennedy*, DeWine*, and Fischer**

*Justices Kennedy and DeWine would accept the appeal on all propositions of law.

**Justice Fischer would also accept proposition of law No. II and would accept the cross-appeal.

No: Chief Justice O’Connor and former Justice O’Donnell

Former Justice DeGenaro did not participate in this case.

Key Statutes and Precedent

R.C. 2744.02(A)(1) (A political subdivision is generally immune from liability for its acts and for the acts of its employees, unless one of the exceptions within the statute applies.)

R.C. 2744.02(B)(1)(a) (Exceptions to Immunity)(Political  subdivisions are liable for injury, death, or loss to person or property caused by the negligent operation of any motor vehicle by their employees when the employees are engaged within the scope of their employment and authority. But political subdivisions are immune from damages caused by a police officer operating a motor vehicle while responding to an emergency call unless the officer’s actions were willful or wanton)

R.C. 2744.03(A)(5) (A political subdivision is immune from liability for determining whether to acquire or how to use its resources, unless the determination was exercised with malicious purpose, in bad faith, or in a wanton or reckless manner.)

Wagner  v. Heavlin, 136 Ohio App.3d 719, 737 N.E.2d 989 (7th Dist.2000) (Willful and wanton standard applies during course of emergency run; negligence test applies to pre-emergency call circumstances such as failure to maintain a pursuit policy and furnish necessary training to the officers.)

 Doe v. Marlington, 2009-Ohio-1360 (the exception to immunity in R.C. 2744.02(B)(1) for the negligent operation of a motor vehicle pertains only to negligence in driving or otherwise causing the vehicle to be moved.)

 Anderson v. Massillon, 2012-Ohio-5711. (Willful misconduct is an “intentional deviation from a clear duty or from a definite rule of conduct, a deliberate purpose not to discharge some duty necessary to safety, or purposefully doing wrongful acts with knowledge or appreciation of the likelihood of resulting injury.” Wanton misconduct is the “failure to exercise any care toward those to whom a duty of care is owed in circumstances in which there is great probability that harm will result.” Reckless conduct is conduct “characterized by the conscious disregard of or indifference to a known or obvious risk of harm to another that is unreasonable under the circumstances and is substantially greater than negligent conduct.”)(syllabus)

Bowman v. Canfield, 2015-Ohio-1323 (9^th Dist.) (When determining whether a political subdivision is entitled to immunity, a three-tiered analysis is employed. First, there is a presumption that a political subdivision is generally immune from liability, pursuant to R.C. 2744.02(A)(1). Second, a political subdivision’s immunity is lost if one of the exceptions to immunity within R.C. 2744.02(B) applies. Third, a political subdivision’s immunity is restored if one of the seven defenses within R.C. 2744.03(A) applies.)

Argabrite v. Neer, 2016-Ohio-8374. (repudiated an appellate-made “no-proximate-cause” rule, but held police officers involved in the high speed chase of a fleeing offender were immune from liability for injuries to the innocent bystander plaintiff.)

Township Defendants’ Argument

There is no statutory political subdivision immunity exception for a political subdivision’s failure to adequately hire, train, or supervise its employees.

The Court should reverse the Seventh District’s ruling because the decision improperly applied the three-tiered analysis that determines whether a political subdivision is immune from liability under R.C. 2744. The first tier states the general rule that pursuant to R.C. 2744.02(A), a political subdivision is entitled to immunity when engaging in a governmental or proprietary function.  Under the second tier, that immunity is lost if one of the exceptions in R.C. 2744.02(B) applies. Under the third tier, immunity can be restored if one of the defenses applies.

Since Coitsville Township is clearly a political subdivision, and providing police services is a governmental function, R.C. 2744.02(A)(1) bestows a presumption of immunity upon the Township Defendants for its own acts and for its employees’ acts.

The second step of the analysis examines whether any exception contained within R.C. 2744.02(B)(1) through (B)(5) applies to the present case.  McConnell claims the exception in R.C. 2744.02(B)(1) applies, which eliminates a political subdivision’s immunity if an employee engages in the “negligent operation of any motor vehicle.” However, if the employee is a police officer responding to an emergency call without engaging in willful or wanton misconduct, then this exception does not apply, and the political subdivision retains its immunity.

In this case, the R.C. 2744.02(B)(1) exception does not apply because the statute eliminates immunity based upon the employee’s conduct, not the political subdivision’s conduct. The issue of whether Officer Dudley’s operation of the motor vehicle constituted willful or wanton misconduct is not before the Court. Therefore, because Coitsville Township is a political subdivision, and the statute examines the employee’s conduct, not the political subdivision’s conduct, the Township Defendants’ alleged negligence is irrelevant in determining whether the exception applies.

The only issue before the Court is whether a political subdivision’s negligent hiring, training, and supervising is encompassed within the meaning of the “operation” of a motor vehicle, as stated in R.C. 2744.02(B)(1). The “operation” of a motor vehicle has been narrowly defined to pertain only to the driving of a vehicle or otherwise causing the vehicle to be moved. Because hiring, training, and supervising of police officers is not included in the “operation” of a motor vehicle within the meaning of R.C. 2744.02(B)(1), an independent exception is needed for McConnell’s claim to succeed. Because R.C. 2744.02(B) contains no such exception, McConnell’s claim must fail at the second step of the analysis.

Even if the hiring, training, and supervising of employees were encompassed within the meaning of the “operation” of a motor vehicle, McConnell’s claim would still fail because of R.C. 2744.02(B)(1)(a). Under that provision, a political subdivision loses its immunity only if the employee’s actions constituted willful or wanton misconduct. Because McConnell alleges that the Township Defendants’ training, hiring, and supervising of Officer Dudley was only negligent, R.C. 2744.02(B)(1)(a) would provide a complete defense for the Township Defendants because negligence is a lesser standard than willfulness or wantonness.

Because no exception under R.C. 2744.02(B)(1) applies, there is no need to advance to the third step of the analysis, which examines whether a defense under R.C. 2744.03(A)(5) restores immunity to the Township Defendants.

Even if the first and second step of the analysis were met and the third step analysis was required the Township Defendants would still not be liable for the alleged negligent hiring, training, or supervising of its employees. Under R.C. 2744.03(A)(5), immunity may be restored if the political subdivision did not act with malicious purpose, in bad faith, or in a wanton or reckless manner. McConnell alleges that the Township Defendants were negligent in hiring, training, and supervising Officer Dudley. McConnell made no allegation of any acts of bad faith by the Township Defendants. Furthermore, negligence is a lesser degree of culpability than malicious purpose and wanton or reckless conduct. Therefore, even if the Township Defendants were found to have negligently hired, trained, and supervised Officer Dudley, R.C. 2744.03(A)(5) would restore immunity to the Township Defendants because they did not act with malicious purpose, in bad faith, or in a wanton or reckless manner. Therefore, the Township Defendants are immune to any vicarious liability claims authorized by R.C. 2744.02(B)(1).

McConnell’s Argument

No new, independent exception to immunity has been created in this case. The negligence of the Township Defendants is not alleged to have occurred during the emergency call, but in the training and supervision that occurred well before that. The Court should affirm the Seventh District’s decision because the Township Defendants’ negligent training, supervision, and hiring of Officer Dudley was causally related to the car crash that seriously injured McConnell.

R.C. 2744.02(B)(1) is an exception to the general grant of immunity to a political subdivision. Under R.C. 2744.02(B)(1), a political subdivision can be liable for accidents caused by its employee’s negligent operation of a motor vehicle, subject to certain exceptions. As an exception to the general rule of immunity, R.C. 2744.02(B)(1) should be narrowly construed. But McConnell’s allegations of negligent hiring, training, and supervision are all sufficiently related to an employee’s operation of a motor vehicle and thus can be brought under R.C. 2744.02(B)(1).

Officer Dudley’s poor decisions during the police pursuit can be attributed to his superior’s failure to provide proper training and supervision so that he could successfully engage in a police pursuit. Because McConnell’s claims of negligent hiring, training, and supervising by the Township Defendants are causally related to Officer Dudley’s operation of a motor vehicle, McConnell’s claims of negligent hiring, training, and supervising are included within the “operation of a motor vehicle exception” in R.C. 2744.02(B)(1).

McConnell does not need to prove that the Township Defendants engaged in willful or wanton misconduct because the willful or wanton standard applies only to an employee’s actions during an emergency situation. The Seventh District properly refused to apply the willful/wanton misconduct standard to pre-emergency call claims.

The Township Defendants’ negligent hiring, training, and supervising actions occurred well before the emergency situation ever occurred. The Township Defendants’ interpretation of R.C. 2744.02(B)(1)(a) improperly and illogically expands “the responding to an emergency call” exception to actions that happened before the emergency situation even occurs. The proper interpretation of this statute is that the willful or wanton standard should apply only to actions that occur during the actual time that the police officer is responding to the emergency situation. This construction makes sense because there is no reason to apply the willful or wanton standard to decisions made outside the immediate pressure of an emergency call. Because the lack of training and supervising occurred before Officer Dudley responded to the emergency call, the R.C. 2744(B)(1)(a) exception does not apply. McConnell only needs to prove that the Township Defendants engaged in negligent conduct that was causally related to Officer’s Dudley’s negligent operation of the motor vehicle.

Township Defendants’ Proposed Proposition of Law Accepted For Review

A political subdivision is immune from liability for allegations of negligent hiring, or failure to train or supervise police officers, as such allegations do not fall within any of the exceptions found within R.C. 2744.02(B)(1) through (B)(5).

Townships Defendants’ Proposed Proposition of Law Not Accepted for Review

Anderson v. Massillon, 134 Ohio St.3d 380, 2012-Ohio-5711, in concert with R.C. 2744.02(B)(1)(a), sets forth the legal standard to be applied when a township moves for summary judgment on the basis of immunity under R.C. 2744.02(A) when an employee of a township police department was operating a motor vehicle while responding to an emergency call.

McConnell’s Proposed Proposition Not Accepted for Review in Cross Appeal

A complaint that alleges that a political subdivision’s employee acted willfully and wantonly sufficiently raises a claim for individual liability under R.C. 2744.03(A)(6)(b) for purposes of Civ. R. 8(C).

Amicus in Support of McConnell

Ohio Association for Justice

The Ohio Association for Justice (OAJ) filed an amicus brief in support of McConnell. OAJ’s mission is to preserve Constitutional rights and to protect access to the civil justice system for all Ohioans.

Under R.C. 2744.02(B)(1)(a), a political subdivision has a complete defense to liability if a police officer is responding to an emergency call, unless the officer’s conduct was willful and wanton. To help make that determination, courts must examine the hiring, training, and supervision of the police officers.

When determining whether a police officer engaged in willful or wanton misconduct, the evidence pertaining to the officer’s conduct should be viewed holistically. Because an officer’s decisions are informed by his past training and experiences, information about an officer’s training should be part of the holistic review. Furthermore, the information about an officer’s hiring, training, and supervision can demonstrate how the officer understood the risks involved and the duty of care to the public.

Therefore, information about Officer Dudley’s training, hiring, and supervising is relevant in determining whether Officer Dudley engaged in willful or wanton misconduct.

Amici in Support of Township Defendants

City of Columbus, et al.

The City of Columbus, twelve other political subdivisions, and six organizations that represent political subdivisions and schools (collectively referred to as the “Amici”) filed an amicus brief in support of the Township Defendants. The Amici are concerned that a ruling establishing negligent hiring and supervising as an exception to sovereign immunity would deprive political subdivisions of the statute’s intended immunity and expose political subdivisions to numerous lawsuits. The Amici argue that exceptions to general rules should be narrowly construed. In this case, the general rule under R.C. 2744.02(A)(1) is that political subdivisions are immune to liability and the exception under R.C. 2744.02(B)(1)(a) should be narrowly construed. An interpretation finding that hiring, training, and supervising of employees is part of the “operation” of a motor vehicle is not narrowly construing the exception. Additionally, focusing on the political subdivision’s acts, instead of the employee’s acts, is also not interpreting the statute narrowly. Both these interpretations should be rejected.

The Amici provide multiple decisions from the Eighth and Tenth Districts that have construed R.C. 2744.02(B) as excluding an exception to immunity for claims of negligent hiring, training, supervising, entrusting, disciplining, or monitoring of police officers. Lastly, the Amici argue that a political subdivision’s negligent hiring and training of police officers cannot serve as evidence of willful or wanton misconduct within the meaning of R.C. 2744.02(B)(1) because the employee’s conduct, not the political subdivision’s conduct, is relevant to that exception.

City of Canton, City of Massillon, and City of Alliance

The Cities of Canton, Massillon, and Alliance also filed an amicus brief in support of the Township Defendants. The Cities of Canton, Massillon, and Alliance emphasize the importance of a narrow interpretation of R.C. 2744.02(B)(1)(a), especially for political subdivisions which may not have the requisite funds to defend against certain lawsuits for which the General Assembly never intended recovery. The Cities argue that the R.C. 2744.02(B)(1)(a) exception applies only to employees of political subdivisions who were operating a motor vehicle and does not include a cause of action against a political subdivision for its negligent hiring, training, or supervising. An interpretation that includes negligent training as part of the operation of a motor vehicle exception is contrary to the purpose of the statute, which is to provide certain narrow exceptions to a general grant of immunity to political subdivisions.

Student Contributor: Maria Ruwe