COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68894 EDWARD THOMAS, BY AND THROUGH : JOYCE JEFFERSON, HIS LEGAL : GUARDIAN, : : PLAINTIFF-APPELLANT : JOURNAL ENTRY : v. : AND : : OPINION CITY OF EUCLID, ET AL. : : : DEFENDANTS-APPELLEES : DATE OF ANNOUNCEMENT OF DECISION: JANUARY 18, 1996 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, Case No. CV-273720. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellant: Robert F. Coury, Esq. Weiner, Suit & Coury 800 Halle Building Cleveland, Ohio 44115-1800 For Defendants-appellees: Paul F. Oyaski Director of Law Deborah Wenner Lebarron Chief Counsel 585 East 222nd Street Euclid, Ohio 44123 SWEENEY, JAMES D., J.: Plaintiff-appellant Edward Thomas, by and through his legal guardian Joyce Jefferson, appeals the decision of the trial court granting the motion for summary judgment filed by the defendants- appellants the City of Euclid and Euclid Police Officers Wayne Tryon and Tim Verh. Mr. Thomas has been deemed mentally ill subject to hospitalization by the Cuyahoga County Court of Common Pleas, Probate Division. Suit was filed to recover for injuries sustained by Mr. Thomas when he exited a moving police vehicle. On June 13, 1992, June Thompson and Joyce Jefferson, sisters of Mr. Thomas, obtained an order of detention in accordance with R.C. 5122.11 from the probate court for Mr. Thomas. Ms. Thompson and Ms. Jefferson proceeded to the Euclid Police Department where they requested that Mr. Thomas be transported by the police to the Veteran's Administration Hospital in Brecksville, Ohio. The women then went to Mr. Thomas' apartment and arrived just prior to Officers Tryon and Verh. Although both women stated at their respective depositions that the officers were informed that Mr. Thomas was a diagnosed paranoid schizophrenic and that he was suicidal, neither officer recalled the content of the conversations with Mr. Thomas' sisters. Both women stated that the officers were polite and respectful at all times. Once inside the apartment, the officers attempted to handcuff Mr. Thomas for transportation to the hospital. The officers could see that Mr. Thomas was apprehensive about being handcuffed behind - 3 - his back so they offered to handcuff Mr. Thomas in front of his body. Mr. Thomas readily complied and was placed in the rear of the police cruiser. Officer Tryon, the driver, locked the doors by using the power lock switch in the front of the vehicle. As the police vehicle proceeded south on Interstate 77, Mr. Thomas opened the car door and jumped out. The vehicle was travelling approximately 55 m.p.h. in the berm lane. Mr. Thomas severely injured his ankle and suffered various minor abrasions. When asked why he exited the vehicle the appellant responded that Jehovah told him to. As evidence to support and oppose the motion for summary judgment, the parties rely on the depositions taken of Officers Tryon and Verh. Officer Tryon testified that after placing the appellant in the rear of the police cruiser he locked all four doors of the vehicle using the power lock switch in the front. It was his understanding and belief that Mr. Thomas could not unlock or open the rear door. Officer Tryon stated that a basic vehicle inspection is done prior to driving a vehicle out of the lot, including checking the trunk for proper equipment, checking the lights and siren, checking the vehicle for any damage and inspecting the tires. No mention was made of inspecting the door locks. Officer Tryon testified that at different times the officers were assigned to different vehicles. He also testified that on previous models of police - 4 - cruisers the city garage ensured that the door handles in the rear were disconnected and would not function. Officer Verh testified that he was not assigned a specific police cruiser, but was assigned whatever vehicle was available. He stated that the police vehicles were Chevrolet Caprices and that the department obtained six new cruisers. On July 13, 1993, he was assigned to one of the new models. Officer Verh stated that after they placed the appellant in the cruiser, Officer Tryon locked all four of the vehicle's doors with the mechanical lock button. At that point in time, Officer Verh was under the belief that, like other cruisers he had operated in the past, it was not possible to unlock or open the rear door. He had never ridden in nor operated a police cruiser in which the rear doors and locks were not disconnected. The appellant sets forth one assignment of error: THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO DEFENDANTS-APPELLEES AS THERE IS A GENUINE ISSUE OF MATERIAL FACT AS TO WHETHER DEFENDANTS WERE NEGLIGENT AND/OR RECKLESS. The appellant argues that the trial court erred in granting the appellees' motion for summary judgment because the appellees were negligent and/or reckless when they failed to ensure that the child safety locks on the doors of the police vehicle were properly engaged. The appellant states that the police have a duty of reasonable care and protection of those in their custody. He argues that his exit from the police car was foreseeable since he - 5 - was known to be a diagnosed paranoid schizophrenic who was suicidal. Summary judgment is appropriately rendered when no genuine issue as to any material fact remains to be litigated; the moving party is entitled to judgment as a matter of law; it appears from the evidence that reasonable minds can come but to one conclusion; and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party. Turner v. Turner (1993), 67 Ohio St.3d 337, citing to Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, and Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64. The nonmoving party must produce evidence on any issue for which that party bears the burden of production at trial. Wing v. Anchor Media, Ltd. (1991), 59 Ohio St.3d 108 citing to Celotex Corp. v. Catrett (1978), 477 U.S. 317, 322-323. Finally, it is worthy of note that an appellate court reviews the lower court's determination on a motion for summary judgment de novo. Koos v. Cent. Ohio Cellular, Inc. (1994), 94 Ohio App.3d 579. The appellees argue that they are immune from liability pursuant to R.C. 2744 et seq. Specifically, R.C. 2744.02(A)(1) provides: (A)(1) 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 persons or property allegedly caused by any act or - 6 - omission of the political subdivision or an employee of the political subdivision in connection with a governmental or proprietary function. It is uncontested that the appellees were transporting the appellee pursuant to an order of detention issued by the Cuyahoga County Court of Common Pleas, Probate Division. In Twine v. Franklin Cty. Sheriff's Dept. (1990), 68 Ohio App.3d 51, the court found that the service and execution of an order of detention is a governmental function pursuant to R.C. 2744.01(C). The court went on to find that the sheriff's department was immune from liability for the governmental function pursuant to R.C. 2744.02. T h e holding in Twine, supra, is applicable here. The City of Euclid is immune from liability for any negligence in the execution of the order of detention issued by the Probate Court regarding the appellant. Officers Tryon and Verh are also immune from liability for negligence. See R.C. 2744.03(A)(6) where the legislature stated that employees are immune unless the acts or omissions are outside the scope of employment; are made with malicious purpose, bad faith, or constitute willful and wanton conduct; or another code section expressly imposes liability. An allegation of negligence does not fall within these parameters and there is no express liability in the revised code for the negligent acts of omissions of a government employee. The individual officers may not be held liable for simple negligence. - 7 - Turning next to the allegations of recklessness, this court must likewise find that the trial court properly granted the appellees' motion for summary judgment. In Fabrey v. McDonald Police Dept. (1994), 70 Ohio St.3d 351, 355, the Supreme Court held that while an individual employee may be held liable for their malicious, bad faith, wanton or reckless acts, R.C. 2744.03(A)(6) applies only to individual employees and not to political subdivisions. Therefore, the City of Euclid may not be held liable for any reckless acts or omissions committed by its police officers. In Fabrey, supra, the Supreme Court cited with approval Thompson v. McNeill (1990), 53 Ohio St.3d 102. In Thompson, the Court stated in a footnote that reckless is often used interchangeably with the terms willful and wanton. The Court noted that its comments regarding recklessness apply to conduct characterized as willful and wanton. In the opinion the Court defined recklessness: The Restatement of Torts 2d defines "recklessness" as follows: "The actor's conduct is in reckless disregard of the safety of others if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent." 2 Restatement of the Law 2d, Torts (1965), at 587, Section 500. Comment f to Section 500 contrasts recklessness and intentional - 8 - misconduct: "While an act to be reckless must be intended by the actor, the actor does not intend to cause the harm which results from it." Id. at 590. Comment a to Section 500 adds that "* * * the risk must itself be an unreasonable one under the circumstances." (Emphasis added.) Id. at 588. In Fabrey, supra, the Court held that while the issue of wanton misconduct is normally a jury question, the standard for showing such conduct is high. The Court cited to Roszman v. Sammett (1971), 26 Ohio St.2d 94 where it stated that "mere negligence is not converted into wanton misconduct unless the evidence establishes a disposition to perversity on the part of the tort-feasor." The Court also stated that such perversity must be under such conditions that the actor must be conscious that his conduct will in all probability result in injury. In the case sub judice, the appellant has not met this high burden of proof. The only evidence submitted to the court was the depositions of the appellant's sisters, Ms. Thompson and Ms. Jefferson, who both indicated that the officers treated the appellant with respect, and the depositions of Officers Tryon and Verh. The testimony of the officers is uncontroverted. They both stated they had each driven a variety of police vehicles; that the rear doors on each of those vehicles were inoperable; that after the appellant was placed in the vehicle driven that day, the doors to the police cruiser were locked; and that they did not know the rear doors would open after the lock was engaged. - 9 - Such conduct does not meet the definition of reckless, willful or wanton as defined by the Supreme Court in Fabrey, supra, or Thompson. The officers did not know, or have reason to know, that their conduct would create any risk of harm to the appellant, much less an unreasonable risk of harm. Their conduct did not constitute a reckless disregard for the safety of the appellant. The trial court did not err in granting the appellees' motion for summary judgment either on the issue of negligence, for which all of the appellees are immune, or on the issue of recklessness, for which the City of Euclid is immune and no evidence was offered as to the individual officers which would hold them responsible for reckless conduct. The appellant's assignment of error is overruled. Judgment affirmed. - 10 - It is ordered that appellees recover of appellant their costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. LEO M. SPELLACY, C.J., and JOHN T. PATTON, J., CONCUR. JAMES D. SWEENEY JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time .