[Cite as Weitzel v. Trumbull Cty. Commrs.,

.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

TRUMBULL COUNTY, OHIO

DAVID G. WEITZEL, et al., : OPINION

Plaintiffs-Appellees, : CASE NO. 2014-T-0034 - vs - :

TRUMBULL COUNTY : COMMISSIONERS, et al., : Defendant-Appellant.

Civil Appeal from the Trumbull County Court of Common Pleas. Case No. 2013 CV 1564.

Judgment: Affirmed.

David M. Tschantz, Gervelis Law Firm, 3790 Boardman-Canfield Road, Canfield, OH 44406 (For Plaintiffs-Appellees).

Carl E. Cormany and Frank H. Scialdone, Mazanec, Raskin & Ryder Co., L.P.A., 100 Franklin’s Row, 34305 Solon Road, Cleveland, OH 44139 (For Defendant-Appellant).

TIMOTHY P. CANNON, P.J.

{¶1} This case arises from an automobile accident between Deputy Jed

Oakman of the Trumbull County Sheriff’s Office and Mr. David G. Weitzel. Appellant,

Trumbull County Commissioners (“the Commissioners”), appeals from the denial by the

Trumbull County Court of Common Pleas of its motion for summary judgment based on

statutory immunity. Pursuant to R.C. 2744.02(C), the trial court’s denial of summary

judgment is a final, appealable order. See Hubbell v. Xenia,

, 2007- Ohio-4839, syllabus (holding that an order denying the benefit of an alleged immunity is

a final, appealable order). For the following reasons, we affirm the judgment of the trial

court.

{¶2} On April 20, 2013, Deputy Oakman was on duty with the Trumbull County

Sheriff’s Office. He was pulled off to the side of the road, facing north on State Route

193 in Vienna Township, Ohio, monitoring the speed of passing motorists with radar.

As David G. Weitzel was proceeding north, Deputy Oakman pulled out from the side of

the road, attempting to make a u-turn and head south, and struck Mr. Weitzel’s vehicle.

Mr. Weitzel sustained injuries as a result of the accident.

{¶3} On July 31, 2013, appellees, Mr. and Mrs. Weitzel, filed a complaint for

personal injury and loss of consortium against the Commissioners and Deputy Oakman

and for uninsured/underinsured motorist coverage against Allstate Insurance Company.

Allstate answered on August 12, 2013, and filed a cross-claim for indemnity and

subrogation against the defendants. Subsequently, the Weitzels filed an amended

complaint, voluntarily dismissing Deputy Oakman from the action. On September 13,

2013, the Commissioners answered. Allstate filed an amended answer and cross-claim

on October 9, 2013, but later dismissed its cross-claim.

{¶4} The Commissioners filed a motion for summary judgment based on

political subdivision tort immunity, pursuant to R.C. Chapter 2744, and attached an

affidavit of Deputy Oakman. The Weitzels responded and attached an affidavit of Mr.

Weitzel, unfiled and uncertified pages of Deputy Oakman’s deposition testimony, and

the Commissioners’ response to requests for production (which included a copy of

Trumbull County’s incident report and the Bureau of Workers’ Compensation injury

2 report). The Commissioners filed a reply in support, in which it objected to the Weitzels’

use of the deposition testimony and response to requests for production. The trial court

denied the motion for summary judgment on April 10, 2014.

{¶5} The Commissioners filed a timely appeal, assigning one assignment of

error for our review:

{¶6} “Because Trumbull County is immune pursuant to statute, the lower court

committed prejudicial error by denying the Motion of Defendant Trumbull County

Commissioners for Summary Judgment on First Amended Complaint.”

{¶7} Summary judgment is appropriate under Civ.R. 56(C) when (1) there is no

genuine issue of material fact remaining to be litigated; (2) the moving party is entitled to

judgment as a matter of law; and (3) it appears from the evidence that reasonable

minds can come to but one conclusion and, viewing the evidence in favor of the

nonmoving party, that conclusion favors the moving party. Temple v. Wean United,

Inc.,

(1977).

{¶8} The moving party bears the initial burden to inform the trial court of the

basis for the motion and to identify those portions of the record which demonstrate that

there is no genuine issue of material fact to be resolved in the case. Dresher v. Burt,

(1996). “If this initial burden is met, the nonmoving party then

bears the reciprocal burden to set forth specific facts which prove there remains a

genuine issue to be litigated, pursuant to Civ.R. 56(E).” Fed. Home Loan Mtge. Corp. v.

Zuga, 11th Dist. Trumbull No. 2012-T-0038,

, citing Dresher at

293.

3 {¶9} We review a trial court’s decision on a motion for summary judgment de

novo. Grafton v. Ohio Edison Co.,

(1996).

{¶10} The Commissioners contend the trial court erred when it found questions

of fact exist and denied its motion for summary judgment based on immunity granted to

a political subdivision in R.C. 2744.02(B)(1)(a). The Commissioners, in their official

capacity, are entitled to the same statutory political subdivision status as Trumbull

County. See Carpenter v. Scherer-Mountain Ins. Agency,

(4th Dist. 1999), fn.4, citing Wilson v. Stark Cty. Dept. of Human Serv.,

(1994).

{¶11} Chapter 2744 of the Ohio Revised Code, the Political Subdivision Tort

Liability Act, contains a comprehensive statutory scheme for the tort liability of political

subdivisions and its employees. As summarized by the Ohio Supreme Court in Colbert

v. Cleveland,

,

, ¶7-9, a three-tiered analysis applies

in matters implicating political subdivision immunity.

{¶12} First, R.C. 2744.02(A)(1), which grants immunity to a political subdivision

from civil liability, provides:

For the purposes of this chapter, the functions of political subdivisions are hereby classified as governmental functions and proprietary functions. Except as provided in division (B) of this section, a political subdivision is not liable in damages in a civil action for injury, death, or loss to person or property allegedly caused by any act or omission of the political subdivision or an employee of the political subdivision in connection with a governmental or proprietary function.

{¶13} Second, R.C. 2744.02(B)(1)-(5) enumerate five exceptions to the general

grant of immunity. Of the five exceptions, only (B)(1) is applicable in the instant case.

Pursuant to R.C. 2744.02(B)(1), although a political subdivision generally enjoys

4 immunity from civil tort liability, it is nonetheless held liable for its employees’ negligent

operation of a motor vehicle, with certain exceptions. R.C. 2744.02(B) provides, in

pertinent part:

Subject to sections 2744.03 and 2744.05 of the Revised Code, a political subdivision is liable in damages in a civil action for injury, death, or loss to person or property allegedly caused by an act or omission of the political subdivision or of any of its employees in connection with a governmental or proprietary function, as follows:

(1) Except as otherwise provided in this division, 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. * * *

{¶14} Third, R.C. 2744.02(B)(1) further enumerates three full defenses to that

liability. Of the three defenses, only section (a) is applicable in the instant case. R.C.

2744.02(B)(1)(a) states: “A member of a municipal corporation police department or

any other police agency was operating a motor vehicle while responding to an

emergency call and the operation of the vehicle did not constitute willful or wanton

misconduct[.]”

{¶15} Therefore, immunity is available to the Commissioners only if it can

successfully establish that (1) Deputy Oakman was operating a motor vehicle while

“responding to an emergency call” when his vehicle struck Mr. Weitzel’s vehicle, and (2)

“the operation of the vehicle did not constitute willful or wanton misconduct.” R.C.

2744.02(B)(1)(a).

{¶16} The trial court found that questions of fact exist on both prongs:

specifically, (1) whether there was a speeding motorist traveling in the opposite direction

and (2) whether Deputy Oakman activated his sirens prior to entering the roadway. We

5 agree the evidentiary material permitted to be considered under Civ.R. 56 establishes

questions of fact that, when construed in a manner most favorable to the nonmoving

party, do not warrant a grant of summary judgment.

{¶17} Pursuant to R.C. 2744.01(A), an “emergency call” is defined as “a call to

duty including, but not limited to, communications from citizens, police dispatches, and

personal observations by peace officers of inherently dangerous situations that demand

an immediate response on the part of a peace officer.” The Ohio Supreme Court further

interpreted an “emergency call” as “a situation to which a response by a peace officer is

required by the officer’s professional obligation.”

at syllabus.

{¶18} In his affidavit, Deputy Oakman avers that as he was monitoring the speed

of motorists on the road with radar, he “observed that an oncoming (southbound)

motorist was exceeding the speed limit. Under the circumstances, it was my

professional obligation to pursue the speeding motorist.” This assertion was directly

refuted by Mr. Weitzel in his own affidavit: “I did not observe any traffic traveling

southbound past my vehicle, prior to the collision. I spoke to Deputy Oakman after the

collision, and he made no mention that he was entering the roadway to pursue a

speeding vehicle.”

{¶19} Whether Deputy Oakman was responding to an emergency call is a

question of fact. Malone v. Torres, 8th Dist. Cuyahoga No. 92878,

, ¶23,

citing Horton v. Dayton,

(2d Dist. 1988). The evidence submitted by

the parties on this issue is in direct conflict. The record does not contain any

independent corroborating evidence as to whether there was a speeding motorist on the

6 road prior to the accident. “As such, this issue centers on the credibility of the

witnesses and is not properly considered on summary judgment.”

{¶20} Further, “‘because the line between such misconduct and ordinary

negligence is sometimes a fine one depending on the particular facts of a case, it is

generally recognized that such issue is for the jury to decide. The issue should not be

withheld from the jury where reasonable minds might differ as to the import of the

evidence.’” Thompson v. Smith,

,

(11th

Dist.), quoting Reynolds v. Oakwood,

(2d Dist. 1987).

{¶21} Mr. Weitzel averred that “[t]he Trumbull County Sheriff’s vehicle was not

displaying any emergency lights or audible sirens.” Deputy Oakman’s affidavit is silent

on this point. Although failure to activate his emergency lights or siren is not dispositive

of this issue, it is a significant factor to consider “in conjunction with all the other

circumstances” of the case. Reynolds at paragraph two of the syllabus. Accordingly,

the trial court properly deferred to the jury for a determination of whether Deputy

Oakman utilized his emergency lights or siren.

{¶22} Regardless of that specific determination, it is for the fact finder to decide

whether Deputy Oakman failed to exercise any care to Mr. Weitzel under circumstances

where there was a great probability that harm would result from his lack of care (i.e.,

wanton), and whether he intentionally deviated from a clear duty with a deliberate

purpose not to discharge some duty necessary to safety (i.e., willful). Anderson v.

Massillon,

,

; see also

. In

so holding, we emphasize that the purpose of this review and “[t]he purpose of

summary judgment is not to try issues of fact, but rather to determine whether triable

7 issues of fact exist.” McGee v. Goodyear Atomic Corp.,

(4th Dist. 1995).

{¶23} In its appellate brief, the Commissioners also raise arguments concerning

the evidentiary value of items attached to Mr. Weitzel’s response to the motion for

summary judgment. First, Mr. Weitzel attached unverified portions of testimony from

Deputy Oakman’s deposition, which was never filed with the trial court. The

Commissioners objected to the form and substance of this deposition testimony, in a

footnote contained in its reply in support of summary judgment, as “failing to comply

with the evidentiary requirements of Civil Rule 56[.]” On appeal, the Commissioners cite

Royce v. Yardmaster, Inc., 11th Dist. Lake No. 2007-L-080,

, in support

of its argument: “This court has held that it is within the discretion of the trial court, when

ruling on a motion for summary judgment, to consider or not to consider unfiled and

uncertified portions of deposition testimony, where no objection was made to the form or

substance of the deposition testimony.” Id. at ¶36 (emphasis added). Therefore, the

Commissioners contend that because it objected below, the trial court did not have

discretion to consider the deposition testimony.

{¶24} In addition, Mr. Weitzel attached a copy of the Commissioners’ response

to requests for production of documents, which included a copy of Trumbull County’s

incident report and the Bureau of Workers’ Compensation injury report. In another

footnote in its reply, the Commissioners objected to these attachments, “in

unauthenticated form, as they fail to comply with Civil Rule 56.” In support on appeal,

the Commissioners cite Rilley v. Brimfield Twp., 11th Dist. Portage No. 2009-P-0036,

, ¶66: “[D]ocuments submitted in opposition to a motion for summary

8 judgment must be sworn, certified or authenticated by affidavit to be considered by the

trial court in determining whether a genuine issue of material fact exists for trial. Sintic

v. Cvelbar, 11th Dist. Lake No. 95-L-133,

(July 5, 1996),

*5.”

{¶25} However, it is not necessary for us to consider these documents or the

Commissioners’ objections because Mr. Weitzel’s affidavit, standing alone, is sufficient

to raise genuine issues of material fact that withstand summary judgment.

{¶26} We therefore hold the trial court properly declined to invade the province

of the jury when it denied summary judgment sought by the Commissioners on the

issue of whether it is entitled to immunity pursuant to R.C. 2744.02(B)(1)(a). The

Commissioners’ sole assignment of error is without merit.

{¶27} The judgment of the Trumbull County Court of Common Pleas is affirmed.

CYNTHIA WESTCOTT RICE, J.,

THOMAS R. WRIGHT, J.,

concur.

9