“Ohio courts lack the authority to confer immunity based on a different standard than the General Assembly has implemented.”
Justice French, Majority opinion.
“Today’s majority ruling will have a chilling effect on policing and will aid criminals in their fight to avoid apprehension.”
Justice Kennedy, Separate Concurrence
“Unless pursuit is necessary for the immediate protection of the public, it should be curtailed so that it does not create immediate risk”
Justice Pfeifer, In dissent
On December 27, 2016, the Supreme Court of Ohio handed down a merit decision in Argabrite v. Neer, Slip Opinion No. 2016-Ohio-8374. In an opinion written by Justice French, the court repudiated an appellate-made “no-proximate-cause” rule, but held the police officers involved in the high speed chase of a fleeing offender were immune from liability for injuries to the innocent bystander plaintiff, and thus were properly granted summary judgment in the case. Chief Justice O’Connor and Justices O’Donnell and Lanzinger agreed with the opinion in full, with Justice Lanzinger adding a short separate concurrence. Justice Kennedy concurred in judgment only, with a lengthy separate opinion in support of the “no-proximate-cause” rule. Justice Pfeifer agreed that the no-proximate-cause rule should be repudiated, and that one officer, Miami Township Sergeant Adkins, was properly granted summary judgment, but dissented as to immunity for the other officers. Justice O’Neill joined that dissent, and wrote one of his own, disagreeing with the grant of summary judgment to the officers other than Adkins. Whew! No wonder these year-end cases took so long to be released. This case was argued February 9, 2016.
In July 2011, appellant Pamela Argabrite was injured in an accident following a high speed police chase of a fleeing offender named Andrew Barnhart. Barnhart was pursued at various times by three officers from the Miami Township Police Department and at other times by two officers from the Montgomery County Sheriff’s Department. (collectively, “the officers.”) Barnhart collided with Argabrite. Barnhart was killed and Argabrite seriously injured.
Argabrite filed a tort claim against the officers in the Montgomery County Court of Common Pleas, arguing that the officers were not entitled to governmental immunity because their actions were willful, wanton, reckless or malicious. The trial court granted summary judgment to the officers on the no-proximate-cause rule formulated in Lewis v. Bland and adopted by the Second District Court of Appeals in Whitfield v.Dayton, finding that no reasonable juror could find the officers conduct extreme or outrageous.
In a split decision, the Second District affirmed the trial court’s grant of summary judgment to the defendants on the basis of the no-proximate-cause rule.
Key Statutes and Precedent
(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)
Anderson v. Massillon, 134 Ohio St.3d 380, 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.)
Cobb v. Bushey, 152 Ohio St. 336, 89 N.E.2d 466 (1949), paragraph three of the syllabus (the question of proximate cause is ordinarily one of fact, but, where there is no conflict in the evidence, such question becomes one of law.)
DeWald v. State, 719 P.2d 643 (Wyo.1986) (a police officer should be responsible only for the careful operation of his own car; he should not be liable for the unpredictable actions of the driver being pursued for that would make him an insurer of the wrongful acts of a lawbreaker.)
Fabrey v. McDonald Village Police Dept., 70 Ohio St.3d 351, 639 N.E.2d 31 (1994) ( R.C. 2744.03(A)(6)(b) applies to the actions of a law-enforcement officer.)
Lancaster v. Chambers, 883 S.W.2d 650 (Tex.1994) (when analyzing a police officer’s liability in a high-speed pursuit, an important factor to be considered is the danger that the threat of such liability would deter an officer’s willingness to execute his office with the decisiveness and the judgment required by the public good.)
Lewis v. Bland, 75 Ohio App.3d 453 (9th Dist. 1991) (adopting 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.”)
O’Toole v. Denihan, 118 Ohio St.3d 374, 2008-Ohio2574, 889 N.E.2d 505, paragraph three of the syllabus. (Recklessness is a perverse disregard of a known risk. Recklessness, therefore, necessarily requires something more than mere negligence. The actor must be conscious that his conduct will in all probability result in injury.)
Scott v. Harris, 550 U.S. 372, 127 S.Ct. 1769, 167 L.Ed.2d 686 (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.)
State v. White, 142 Ohio St.3d 277, 2015-Ohio-492, 29 N.E.3d 939 (Peace officers have a duty to enforce criminal laws and apprehend offenders.)
Strother v. Hutchinson, 67 Ohio St.2d 282, 423 N.E.2d 467 (1981) (A person is liable for the natural and probable consequences of his negligent acts; the fact that some other act unites with the original act to cause injury does not relieve the initial offender from liability.)
Yeager v. Local Union 20, 6 Ohio St.3d 369, 453 N.E.2d 666 (1983) (defining “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!’”)
Shalkhauser v. Medina, 148 Ohio App.3d 41, 5051, 772 N.E.2d 129 (9th Dist.2002) (the danger of a high-speed chase alone is not enough to present a genuine issue of material fact concerning whether an officer has acted with a malicious purpose, in bad faith or in a wanton or reckless manner.)
Whitehall ex rel. Wolfe v. Ohio Civ. Rights Comm., 74 Ohio St.3d 120, 656 N.E.2d 684 (1995) (Political-subdivision immunity is an affirmative defense.)
This case is governed by the legislatively-enacted R.C. 2744.03(A)(6)(b), not by the appellate judicially-created no-proximate-cause rule, which conflicts with the legislative standard for immunity, and therefore is disavowed. Additionally, under the legislative standard, the officers are entitled to immunity unless they acted with “malicious purpose, in bad faith or in a wanton or reckless manner,” which no reasonable person could find in this case, so summary judgment was properly granted in their favor, albeit on different grounds than the lower courts found.
Under R.C. 2744.03(A)(6), police officers, to whom this statute applies, are entitled to immunity unless their actions were done with malicious purpose, in bad faith or in a wanton or reckless manner. The no-proximate-cause rule protects officers from liability unless they act in an extreme or outrageous manner. That is a higher standard of culpability than reckless or wanton conduct. Because the no-proximate-cause rule improperly extends immunity to a police officer who acts wantonly or recklessly, but not in an extreme or outrageous fashion, it improperly conflicts with statute. So the court rejects the more lenient to law enforcement no-proximate-cause rule in favor of the statutory standard. French also writes that the no-proximate-cause rule improperly assigns aspects of the elements of duty and breach to the proximate cause element of a tort.
Summary Judgment Proper Anyway
Once the court went this route, Justice French acknowledges that usually the case would be sent back to the lower courts to apply the proper standard. But in this case the court concludes that summary judgment was proper anyway, since the officers sought summary judgment based both on proximate cause and on statutory immunity, and summary judgment was proper on the latter basis.
Police Should Get Benefit of the Doubt
Justice French wrote this about our police officers:
“An officer’s role in our society creates a unique lens through which to view his or her actions and through which to determine whether those actions may have been malicious, in bad faith, wanton or reckless. We expect law enforcement officers to protect the public, but that expectation need not mean that an officer must sit idly by while a suspect flees the scene of a crime, particularly when the suspect’s flight itself endangers the general public further. The danger of a high-speed chase alone is not enough to present a genuine issue of material fact concerning whether an officer has acted with a malicious purpose, in bad faith or in a wanton or reckless manner.”
Then French painstakingly analyzed the exact involvement of each of the officers who were sued, and exonerated each as a matter of law, finding no evidence to support any finding that any acted with malicious purpose, in bad faith, or in a wanton or reckless manner, even though all except Adkins–who all the justices agreed was not involved in the pursuit at all—were alleged by Argabrite’s expert witnesses to have violated the respective policies of their departments.
What About Those Departmental Policies?
A violation of departmental policy, French wrote, does not equate to per se recklessness, which requires knowledge by the actor that his conduct will probably result in an injury. And she finds no record evidence to show this in the case of any of the officers.
The officers were entitled to summary judgment, although on different grounds from the lower court rulings.
Justice Lanzinger’s Separate Concurrence
Justice Lanzinger wrote a brief separate concurrence, essentially repeating the position she took in dissent in Anderson v. Massillon- that the only thing that needs to be determined about employees under the governmental immunity statute is whether their conduct was more than simple negligence. If so, regardless of what category it falls into, no immunity; if not, immunity. To her, the conduct here was at most negligent; thus the officers were entitled to immunity.
Justice Kennedy Says Keep the No-Proximate-Cause Rule
Justice Kennedy disagrees that the no-proximate-cause rule conflicts with the sovereign immunity statute and should be abandoned. She believes, and wrote 37 more paragraphs to support her position, that the majority “blurs the distinction between the affirmative defense of sovereign immunity and the separate and independent tort element of causation. The no-proximate-cause rule is not a standard to be considered when determining whether the affirmative defense of immunity applies. It is, however, a common-law rule that determines when the pursuing police officer is the sole or concurrent proximate cause of an injury sustained by a third party at the hands of a fleeing suspect. Therefore, the no-proximate-cause rule is not contrary to the sovereign-immunity statute, and it should remain a viable rule.”
As support for her position, Justice Kennedy notes that half of Ohio’s appellate districts have adopted and supported the no-proximate-cause rule, and points out that the legislature has amended the political-subdivision immunity statutes many times and has never sought to overturn the no-proximate-cause rule, which it surely would have if it thought it conflicted with its immunity statute.
Kennedy, a former police officer herself, wrote some stirring words in support of the officers in blue—“Without the no-proximate-cause rule, doors would open ‘for every desperado to seek sanctuary in the contested confines of our municipalities,’ (case citations omitted)…Today’s majority ruling will have a chilling effect on policing and will aid criminals in their fight to avoid apprehension.” She thinks the effect of the majority opinion will be that law-enforcement officers will sit back and think about personal liability before engaging in a pursuit.
But because Kennedy agrees that the officers are entitled to immunity, she concurred in judgment only.
Frayed End-Of-Year Nerve Ends Showing?
Justice French’s Response to Justice Kennedy’s Take on the No-Proximate-Cause Rule:
“The alarmist statement in Justice Kennedy’s opinion that abrogation of the no-proximate-cause rule “will have a chilling effect on policing” and “aid criminals in their flight,” concurring in judgment opinion at ¶ 64, is completely unfounded and is a misguided attempt to inject policy considerations into a case that is resolved by application of straightforward legal principles of immunity and proximate cause.”
And Justice Kennedy’s Rejoinder:
“Moreover, the majority’s view that my position “is a misguided attempt to inject policy considerations into a case that is resolved by application of straightforward legal principles of immunity and proximate cause,” majority opinion at ¶ 11, is balderdash.”
Hey, and these two aren’t even typically the court’s more colorful writers! And we haven’t even gotten to the dissents yet.
Justice Pfeifer Concurs in Part and Mostly Dissents
Justice Pfeifer agreed with that part of the majority opinion repudiating the no-proximate-cause rule and with its holding that Sergeant Adkins, who all agreed played no active role in the pursuit at all, was entitled to summary judgment. But otherwise, he dissented.
Pfeifer notes that one of the officers involved in the pursuant knew Barnhart and knew where his grandmother lived, so that “chasing him was not the only way to apprehend him.” But Pfeifer more generally takes issue with the majority’s generous use of summary judgment here, especially when the trial court has been corrected for using the wrong legal standard and never had a chance to apply the right one—he would find that whether the officers knew of their department’s pursuit policies and followed them were fact questions for the jury. While he concedes that proving proximate cause would be difficult for Argabrite, he’d let her try. He would direct the trial court to apply the standards in Anderson v. Massillon, and in R.C. 2744.03(A)(b)(6).
Justice O’Neill joined Justice Pfeifer’s concurring and dissenting opinion, and wrote one of his own. He dissents on the granting of summary judgment to all the officer except Adkins.
Oh my. Well, this one is right in my wheelhouse, as I taught torts. And I am firmly with Justice Pfeifer. Justice French lost me totally when she wrote that the testimony of Argabrite’s expert at most “creates a question whether the officers violated the departmental policy, not a question whether they acted with malicious purpose, in bad faith, or in a wanton or reckless manner.” Huh?? While I certainly can see no malicious purpose, bad faith, or wantonness, I can see a question of fact on recklessness here. And the fifth syllabus paragraph of Anderson states “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.” What Justice French wrote almost sounds like ignorance of department policy means nothing more than simple negligence, as a matter of law. The opinion does not quote the departmental policies, but Argabrite’s brief does. They are worth reading. And clearly the respective police departments had good reason to adopt these pursuit policies in the first place.
And while I agree with Justice Pfeifer that Argabrite would have a hard row to hoe, she certainly should get a chance—after all, one or some of the officers knew how to find Barnhart, and who he was, and he wasn’t a serial killer—just a television thief. I also completely agree that the no-proximate- cause rule conflicts with the political subdivision immunity statute and should be abandoned. I got lost in Justice Kennedy’s wordy defense of it, and I’m a retired torts teacher.
In the end, one of Justice O’Donnell’s questions at oral argument summed it up– “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?” The majority position in a nutshell.
I predicted after argument that “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.” Well, only six agreed on that point, but since Justice Kennedy doesn’t ask questions, it is difficult to predict her position. Justice Pfeifer’s position, on the other hand, was totally clear during this argument. He was really on a tear about the police complicity in what happened, and as I predicted, he at least saw a jury question on their level of culpability. Justice O’Neill joined him, as predicted. I thought Justice O’Donnell would as well, but he didn’t. O’Donnell, who authored Anderson v. Massillon should be very pleased about how often that case is cited.