Update: On December 27, 2016, the Supreme Court of Ohio handed down a merit decision in this case. Read the analysis here.
Read the analysis of the oral argument in this case here.
On February 9, 2016, the Supreme Court of Ohio will hear oral argument in the case of Pamela Argabrite v. Jim Neer, et al., 2015-0348. At issue in the case 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.
On July 11, 2011, 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 by the other officer to Barnhart’s address.
Since the Caprice was not at the address when Stites arrived, he parked on the street corner. After a short wait, the Caprice pulled into the driveway. By this time, Sergeant Rex Thompson had also responded to the address and parked in the driveway behind the Caprice. Thompson got out of his cruiser and approached the driver’s side of the Caprice. When Barnhart saw Sargent 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 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. Both Neer and Stites reported their locations and directions to Deputy Chief John DiPietro, but did not relay, nor were they asked to, their speeds or traffic conditions during the pursuit.
As the pursuit continued, Neer and Stites observed Montgomery County Sheriff’s Deputy Anthony 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 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 chase 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. At the time of the pursuit, both Stites and Neer knew Barnhart was wanted only for a property offense, and could have been arrested with a warrant rather than a chase.
Argabrite subsequently sued Miami Township Police Officers Neer, Stites, and Dipietro, along with Montgomery County Sheriff’s Deputy Ball and Sergeant Adkins in their individual and official capacities for her injuries.
Moving for summary judgment, 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 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. By requiring extreme or outrageous conduct to establish proximate cause in the context of a police pursuit, the no proximate cause rule misleadingly focuses on the conduct that produces the result instead of the foreseeability of the consequence, which is the typical focus for establishing proximate cause in every other context. Additionally, Judge Froelich noted that the extreme or outrageous standard required by the no proximate 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.
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)
Estate v. Graves, 124 Ohio St.3d 339 (2010) (a defendant being sued under R.C. 2744.03(a)(6)(b) may not raise additional common law limitations on liability which are not expressly provided for in R.C. 2744 et. seq.)
Nevill v. Tullahoma, 756 S.W.2d 226 (Tenn. 1988) (a pursuing police officer could not be held liable for injuries to third-parties because his conduct could not be the proximate cause of such injuries as a matter of law; subsequently overturned by Haynes.)
Haynes v. Hamilton County, 883 S.W.2d 606 (Tenn. 1994) (abandoned the no proximate cause rule in Tennessee).
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.”)
Scott v. Harris, 550 U.S. 372 (2007) (“[a] police officer’s attempt to terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death.”)
Tennessee v. Garner, 47 US. 1 (1985) (“[t]he use of deadly force to prevent the escape of felony suspects, whatever the circumstances, is constitutionally unreasonable… Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so.”)
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.)
Yeager v. Local Union 20, 6 Ohio St.3d 369 (1983) (defined “extreme and outrageous” conduct as “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous!’”)
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)
The crux of Argabrite’s argument is that the no proximate cause rule and corresponding extreme or outrageous standard should be abandoned. Acknowledging that Ohio appellate courts have applied this rule to police pursuit liability for the past two decades, Argabrite provides a number of reasons for it to be overturned.
First, Argabrite asserts that by providing exceptions to the political subdivision tort liability statute, the Legislature has already established that wanton or reckless behavior is the requisite level of conduct that would cause an employee of a political subdivision to lose his immunity from liability. As such, the appellate courts have effectively usurped this legislative authority by requiring the higher standard of extreme or outrageous conduct to establish proximate cause, a necessary component of liability, in the context of police pursuits.
Next, Argabrite remarks that Ohio is one of a small minority of jurisdictions that even applies the no proximate cause rule in police pursuit cases. Most jurisdictions have adopted a standard of recklessness or gross negligence to allow police the necessary flexibility to make split second decisions while still requiring police accountability. Ohio’s “extreme or outrageous” standard eliminates any accountability, and in effect gives the police complete immunity in these situations. The burden is simply too high to meet, and in fact is so high that it has never been met in a single Ohio case. Given that police pursuits are a use of deadly force that can foreseeably cause harm to innocent third parties, a similar principle of liability and causation should apply to police pursuits to create an incentive for safe behavior.
In Argabrite’s final point as to why the no proximate cause rule and the extreme and outrageous standard should be abandoned, she notes that Ohio adopted this standard by relying on Tennessee law that has since been overturned. Since the overturn of Tennessee’s no proximate cause rule was a result of the state’s adoption of a governmental immunity statute similar to Ohio’s, Ohio should likewise overturn this rule.
Even if the Court decides not to overturn the no proximate cause rule, Argabrite argues that both the Miami Township and Montgomery County officers engaged in extreme and outrageous conduct during the pursuit of Barnhart and were thus, the proximate cause of her injuries. According to Argabrite, the officers’ extreme and outrageous conduct was evidenced by multiple acts, such as their violations of their departments’ pursuit policies; their engagement in deadly force in pursuing a non-violent offender despite the fact they could have apprehended him later through the warrant process; their high speed pursuit through residential areas; their pursuit and continued pursuit outside their jurisdiction and without authorization from a superior officer; and their pursuit and continued pursuit in light of the fact that the public was in danger as a result.
Miami Township Officers’ Argument
The no proximate cause rule has been applied in Ohio for over twenty-four years and is limited to the specific and isolated situation in which an innocent third party has been harmed as a result of a collision with a fleeing vehicle in a police pursuit. The Miami Township Officers contend that such a rule rightfully enables a police officer to apprehend violators of the law while recognizing that the fleeing violator is the actual proximate cause of such an accident. Moreover, this defense does not create an additional exception to the immunities provided in the political subdivision tort liability statute. The statute provides immunity to officers even when there a legitimate finding of duty, breach, proximate cause, and damages. Thus, the no proximate cause rule, which deals solely with the issue of proximate cause, is distinct from the issue of immunity provided by the statute.
Additionally, the Miami Township Officers acknowledge that while the no proximate cause rule may be a minority rule, it is still the rule that Ohio follows and is nonetheless justifiable. They stress that the purpose of the no proximate cause rule is to ensure that the blame is appropriately attributed to the true cause of the harm, the fleeing violator, and not to prevent recovery from reckless officers. The Officers also note that the U.S. Supreme Court has even endorsed this rationale in the context of civil rights violations stemming from police pursuits.
If the no proximate cause rule were abandoned, the Officers contend that police officers’ ability to do their job will be greatly inhibited because they will be forced to choose between pursuing and apprehending fleeing violators at the cost of being held responsible for the acts of the culprits or ignoring the culprits who flee from their crimes. Abandoning the rule will create a perverse incentive for violators to flee without consequence.
The Officers also rebut Argabrite’s reliance on the shift in Tennessee jurisprudence as a way to undermine the no proximate cause rule. According to the Officers, the shift in Tennessee law shouldn’t have any bearing on Ohio’s adherence to the rule because the same policy considerations that supported adoption of rule then remain true today.
Finally, applying the no proximate cause rule, the Officers assert that they did not engage in extreme or outrageous behavior and so they could not have been the proximate cause of Argabrite’s injuries. They contend that Neer and Stiles proceeded with caution with regard to their speed and traffic during the pursuit, remained behind the Montgomery County Deputy Sheriff for most of the pursuit, and were permitted to engage in the pursuit per Miami Township’s pursuit policy. Even if there were any policy violations, none rise to the level of extreme and outrageous conduct. The cause of this accident was the fleeing suspect, Barnhart.
Montgomery County Officers’ Argument
Similar to the Miami Township Officers, the Montgomery County Officers argue that the no proximate cause rule has in no way modified or affected the grant of immunity provided in the statute. The no proximate cause rule governs issues of causation, which is unrelated to immunity issues in the statute.
Additionally, the Officers also agree that the no proximate cause rule is supported by important public policy goals that facilitate a police officer’s ability to protect the public. According to the Officers, abandoning the no proximate cause rule would have a chilling effect on a police officer’s ability to pursue and apprehend suspects. Inhibiting a police officer’s effectiveness in this way would then make the public more susceptible to harm.
Finally, in rebutting Argabrite’s contention that they engaged in extreme or outrageous conduct, the Montgomery County Officers emphasize their lack of involvement in the pursuit. While Ball had followed Barnhart for a short distance, he was only doing so to keep a visual on the vehicle until the Miami Township police could catch up. Once they did overtake him, Ball pulled off, and was therefore, not even in pursuit when the accident occurred. Similarly, Ball’s supervisor, Sergeant Adkins, had no active role in the police pursuit and was unaware that Ball was keeping a visual on the vehicle until Ball told him he pulled over. As such, neither officer engaged in extreme or outrageous conduct so as to be considered the proximate cause of Argabrite’s injuries.
Argabrite’s Proposed Proposition of Law 1
When establishing a police officer’s conduct was a proximate cause of injuries to innocent third-parties stemming from a high speed pursuit, a plaintiff need not prove the officer’s conduct was “extreme or outrageous.”
Argabrite’s Proposed Proposition of Law 2
Under Ohio’s current “no proximate cause rule”, a pursuing police officer’s conduct is extreme or outrageous where, in violation of his pursuit policy, he: 1) engages in deadly force by pursuing a suspect known to have committed only a property crime who could have later been apprehended through the warrant process; 2) pursues and continues to pursue a suspect for over seven miles at high speeds, through residential areas, and despite the offender driving into oncoming traffic; 3) pursues and continues to pursue a suspect without necessary authorization from a superior officer; 4) pursues and continues to pursue a suspect outside appropriate jurisdiction; and/or 5) pursues and continues to pursue a suspect with knowledge that an unjustified, known danger to the public was present.
Miami Township Officers’ Proposed Proposition of Law 1
Police officers are not the insurers of the behavior of fleeing criminals and the “no proximate cause” holding remains a viable defense to liability for law enforcement absent extreme and outrageous conduct.
Miami Township Officers’ Proposed Proposition of Law 2
Both the Trial Court and the Appellate Court correctly determined that Defendants-Appellees were not liable to Plaintiff-Appellant for her injuries and damages under the “no proximate cause” rule and summary judgment was properly granted to them.
Amici In Support of Argabrite
Amicus, Ohio Association for Justice (OAJ), is an organization that advocates for the rights of injured victims. In its brief supporting Argabrite, OAJ contends that the no proximate cause rule and corresponding extreme or outrageous standard is irreconcilable with the “wanton or reckless” language of R.C.2744.03(A)(6). OAJ argues that the “no proximate cause” rule judicially imposes a standard of conduct the legislature rejected in enacting R.C. 2744. The statute controls, and it is for a jury to decide if the conduct of the officers was reckless or wanton, as the court held in Anderson v. Massillon.
OAJ also notes that the vast majority of states and D.C. have rejected the no proximate cause rule and that Ohio should likewise abandon this rule that conflicts with the statute.
Amicus, Ohio Employment Lawyers Association (OELA), is an organization of lawyers dedicated to the protection of employee rights and workplace fairness. According to OELA, the no proximate cause rule is not even a proximate cause rule, but a duty rule. Since the legislature has already provided the duty owed to bystanders by officers acting in the course of their employment, the common law no proximate cause rule should be abandoned as it necessarily conflicts with this established duty.
OELA puts forth the following proposed proposition of law:
A police officer, who uses a motor vehicle in a bad faith, malicious, wanton, or reckless manner to pursue a suspect will be liable for injuries caused in fact by the pursuit when the injuries are the kind of harm that the police officer should have acted to avoid.
Amicus In Support of Officers
Amicus, Ohio Prosecuting Attorneys Association (OPAA), is a private non-profit organization that seeks to support Ohio’s county prosecutors pursue justice and promote public safety. OPAA asserts that abandoning the no proximate cause rule would have the effect of inhibiting police officers’ ability to apprehend fleeing violators and bring them to justice. While the rule has been rejected in a number of jurisdictions, it has not been rejected by several of the states Argabrite has cited. In fact, the rule has been embraced in several neighboring states, such as Kentucky and Indiana, and it has even been expanded in Wyoming. OPAA puts forth the following proposed propositions of law:
OPAA’s Proposed Proposition of Law 1:
The “no proximate cause” rule remains the law in a number of states.
OPAA’s Proposed Proposition of Law 2:
The General Assembly has set forth public policy supporting police pursuits of suspected offenders.
OPAA’s Proposed Proposition of Law 3:
Abandoning the “no proximate cause” rule would thwart the public policy set forth by the General Assembly and would jeopardize public safety.
Student Contributor: Danielle List