What’s On Their Minds: Is Negligent Hiring, Training and Supervision of Employees An Exception To Political Subdivision Immunity? Renee McConnell et al v. Donald C. Dudley, Jr. et al.

By Marianna Bettman on June 20, 2019

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

“If they have no training or inadequate training, to deal with the situation that they find themselves in, and they proceed anyway, knowing that they don’t know what they are doing, how does that impact on your analysis?”

Chief Justice O’Connor, to counsel for the Township Defendants

“If someone is injured because of a failure to train or to hire the proper person, is that injury caused by the negligent operation of a motor vehicle? Isn’t it caused by the failure to train?”

Justice DeWine, to counsel for McConnell

On June 12, 2019, the Supreme Court of Ohio heard 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. The trial court 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, 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.

Read the oral argument preview of the case here.

Township Defendants’ 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).

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. (repudiating an appellate-made “no-proximate-cause” rule, but holding police officers involved in the high-speed chase of a fleeing offender were immune from liability for injuries to the innocent bystander plaintiff.)

At Oral Argument

Arguing Counsel

Gregory A. Beck, Baker, Dublikar, Beck, Wiley & Mathews, N. Canton for Appellant Township Defendants

Ryan J. Melewski, Rafidi, Pallente, & Melewski, Canfield, for Appellees Renee McConnell and family

Township Defendants’ Argument

The issue in this case is whether or not allegations of negligent hiring, supervision and training fall within the exception to immunity under the guise of negligent operation of a motor vehicle pursuant to 2744. 02(B)(1). The answer to that question is no.

This Court’s three-tiered immunity analysis is well developed. There is no disagreement that the provision of police, fire and EMS medical services are deemed a governmental function pursuant to 2744.01(2)(c)(a). R.C. 2744.02 (A) basically says that regardless of whether the function is governmental or proprietary, immunity applies. The purpose of this immunity is to preserve the fiscal integrity of the political subdivision. Under the scheme created by the legislature, as the risk increases to the political subdivision, the immunity is enhanced.

Unless the action against the political subdivision for a governmental function falls within one of the specific parameters of the five exceptions of R.C. 2744.02 (B)(1)(a), it is barred. McConnell and the lower courts are improperly attempting to broaden the scope of the very narrow exception to immunity found for negligent operation of a motor vehicle. This Court rejected such an approach in Doe v. Marlington a decade ago.

Unlike the situation in Doe, which involved a simple analysis of the phrase “negligent operation of a motor vehicle,” in this case the entire (B)(1) section must be examined. There are two sentences in that section. The first sentence basically says that a political subdivision is liable in civil damages for the negligent operation of a motor vehicle by employees within the scope of their employment and authority. Under that section, liability is set. The legislature is eliminating immunity for negligent operation of a motor vehicle just like it does under normal circumstances.

The second sentence in 2744(B)(1) lists full defenses to that political subdivision liability. When the issue of an emergency call to duty is reached, a whole different band of liability is involved. First responders must not be deterred from doing their jobs. The legislature said, under section a, which is applicable here with police and fire, that immunity is reattached to the operation of the vehicle as long as the operation did not constitute willful or wanton misconduct by that operator. This is an isolated snapshot of what the operator did at the moment that the claim arose. It is not an analysis of whether he was hired properly, years before; it is not a matter of whether he was supervised at any time during the shift; it is not an analysis of what his training was. The individual that is operating this cruiser is being looked at under the microscope for a decision process that was made at the time that the event arose.

Turning to the following section, in 2744.03 (A)(5) there is an affirmative defense under proprietary functions, and that is when training and information and all kinds of hiring and policies are available for analysis against the political subdivision. That is because in the third tier of the analysis, the perspective shifts from the employee to the political subdivision. But in this case, the third tier is never reached, because this is a governmental function for which immunity applies, and because this was an emergency run that cloaks the political subdivision in a full defense unless it can be shown with legally relevant evidence that the action of the employee in the operation of the vehicle was willful and wanton.

But to make an allegation that the exception to immunity is stripped away in this case because the officer perhaps should not have been hired three years earlier, or that there was inadequate training, or that training wasn’t available because of fiscal issues would be unfair to the exact exception that the legislature is trying to carve out. The Court should again, as it did in Argabrite, defer to the legislature for any expansion of immunity applicable to police officers who pursue fleeing suspects. The legislature may create a new standard via statute, but courts may not. This Court should not attach a negligence standard to an emergency response, because that would be inappropriate and contrary to the statutory scheme.

McConnell’s Argument

This accident and McConnell’s injuries were caused by an officer that had never encountered this situation. It is totally apparent by watching the dashcam video how many things went awry because Officer Dudley was never trained. He went through a red light on a property crime. Police Chief Morris says that should never happen. A pursuit should not even be started on a property crime. Officer Dudley was never trained on that. Pursuit is supposed to be ended if it goes on for more than a mile and if there is no visual contact with the suspect. And yet this pursuit went on over the course of 1.3 miles, and at no time was the suspect vehicle visible on the dashcam. This officer went over 77 mph in residential neighborhoods less than half a mile from a school. At several points he went airborne over bumps, like in an action movie. He went through stop signs at 55 mph and eventually went through a red light at a blind intersection without crossing traffic while he was looking at a street sign, hands off the wheel, radioing his street location because he didn’t know where he was, because he was out of his jurisdiction. These things could have been prevented.

The Court should affirm the unanimous decision of the Seventh District, and hold two things. First, that negligent hiring, training, and supervision claims that occur in connection with the negligent operation of a motor vehicle are an exception to immunity. Second, because that conduct of hiring, training and supervising does not occur within the context of an emergency, the level of culpability that would be applied should be a negligence standard.

There can be more than one cause of an accident. Here, the inadequate training and supervision of Officer Dudley certainly contributed to his negligence on the emergency run. But for placing that individual who was unqualified and untrained and unsupervised in a position to drive that day, that injury would not have occurred.

R.C.2744.02(B) states that a political subdivision is liable for injury to a person allegedly caused by acts or omissions of either the subdivision or its employees in connection with the five statutory exceptions, the first being negligent operation of a motor vehicle. The correct statutory interpretation here is, that the negligent hiring, training, and supervision occurred in connection with the negligent operation by Officer Dudley. The dispute is not over the fact that negligent operation of a motor vehicle caused an injury to Renee McConnell, but rather that that is not the only mechanism that caused this injury. The reason that Officer Dudley was placed in this position and was so unprepared was the fact that he was hired, but never properly trained, and placed in a position where he did not know what to do.

This case fits in the negligent operation of a motor vehicle exception to immunity. The Township Defendants make much of the emergency call. The legislature clearly intended that if decisions are being made under the perils of an emergency, and in only those situations, the standard for liability is raised from negligence to a willful and wanton standard. But generally speaking, when it comes to injuries caused by motor vehicle collisions involving a political subdivision, the standard for liability is negligence. The decision to hire Officer Dudley, the decision to train or not train him, to go over or not go over the policy– none of those were made under the perils of an emergency. Those were made beforehand. The mere fact that he is an officer doesn’t mean that the standard automatically rises to the level of willful and wanton. It’s only when that conduct is occurring in the context of an emergency run that the legislature has agreed to raise it up to willful and wanton. Since none of the training or supervision occurred in that context, it is McConnell’s position that the fair reading of the statute would be a negligence standard.

What Was On Their Minds

The Negligent Operation Exception to Immunity

Don’t we have to look to the statute to see if there is actually an exception that provides a separate cause of action, and not to the policy behind immunity, asked Justice French?

After “caused by the negligent operation” couldn’t the legislature have just added “or by the negligent training,” asked Justice Fischer? Couldn’t they have said that? But they didn’t, he added.

Hiring, Training and Supervision

Is evidence of what the city did in terms of the training and supervision at all relevant to the negligence of the officer, asked Justice French? In questioning the officer, would it not be appropriate to talk about what training that officer received, the supervision that officer received? Was there a manual? Did the officer read it? Is there any room for that kind of analysis? Is it relevant?

Level of Culpability of the Officer

How would you know that the officer is negligent if you don’t know for example whether there’s a manual that he or she should have read, asked Justice French? Or a supervisor that should have instructed him or her on the appropriate way to handle a police chase? Wouldn’t you at least have to delve into that evidence?

How would you show that the activity of the officer was willful and wanton, asked Chief Justice O’Connor? Wouldn’t you have to know the basis of their knowledge on how to operate in that situation which goes back to their training and supervision?

Causation

If the injury was caused because the person that was hired wasn’t competent, would anyone say the injury was caused by the negligent operation of a motor vehicle, asked Justice DeWine? If the proximate cause of the injury is the failure to screen or train, which is what the negligent hiring claim is, or to supervise employees, is the injury caused by the negligent operation of the vehicle or is it caused by the elements of that claim? If appellee says but for placing that person in a position of driving that day, isn’t that saying the accident is caused by something other than the negligence operation of a vehicle? (He went on at some length about this with Mr. Melewski).

Hypotheticals

Would the city be liable if a mechanic didn’t put on the proper brake system, asked Justice DeWine?

How It Looks From the Bleachers

To Professor Emerita Bettman

Were it up to me with my notorious plaintiff’s heart in torts cases, I’m all in with McConnell, but I don’t think she will fare well here, in the end. I hate these police chases for minor offenses (here, a stolen car) where innocent third parties are seriously injured, where the officer is violating official policy to boot. I’m not sure about the hiring, but there certainly seemed to be negligence in the training and supervising of Officer Dudley in this case. But despite that, I don’t think a majority will shoehorn that negligence into the operation of a motor vehicle exception to immunity. Justice French seems unlikely to go that way, as does Justice Fischer. Justice DeWine was downright hostile, with an unusually cramped view of causation—c’mon, my torts students know there can be more than one cause of an accident, and in this case it sure seems clear that the inadequate training and supervision were a substantial factor in this accident. But I don’t think any or that is going to be enough here to persuade the court that this pre-emergency call conduct is part of the negligent operation exception to immunity.

The Chief was hard to read in this one, and the other justices asked no questions, but in the end I see a win here for the Township Defendants that negligent hiring, training, and supervision are not part of the negligent operation of a motor vehicle exception to immunity. Whether Officer Dudley’s conduct rose to the level of willful and wanton conduct is a different story, and that issue remains to be determined. His lack of training and supervision should certainly be relevant there.

To Student Contributor Maria Ruwe

I think the Court will decide that the applicable exception to defeat immunity of the political subdivision in this situation is to prove willful and wanton misconduct by Officer Dudley during the emergency run. However, the Court certainly thought that Officer Dudley’s hiring, training, and supervision were relevant to proving that. Therefore, I believe that the Court will hold that the willful and wanton misconduct standard applies, but that Officer Dudley’s hiring, training, and supervision are relevant when determining whether Officer Dudley engaged in willful and wanton misconduct.

This case involved a complicated sovereign immunity statute. Both Mr. Beck and Mr. Melewski did an excellent job in their arguments. Both thoroughly understood the statute, which made the argument enjoyable to watch.