COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70953 HAKEEM R. THORNTON, ET AL. : ACCELERATED DOCKET : Plaintiffs-Appellants : : JOURNAL ENTRY -vs- : AND : OPINION DALE R. RICHNAFSKY, ET AL. : : Defendants-Appellees : PER CURIAM DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 12, 1996 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CV-295530 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-Appellants: GERALD L. STEINBERG (#0003702) COHEN & STEINBERG 1020 Standard Building 1370 Ontario Street Cleveland, Ohio 44113 For Defendants-Appellees: R. TODD HUNT (#0008951) VINCENT L. CHEVERINE (#0064650) WALTER & HAVERFIELD P.L.L. 1300 Terminal Tower 50 Public Square Cleveland, Ohio 44113-2253 CHARLES E. MERCHANT (#0012781) Director of Law City of Bedford Heights 5661 Perkins Road Bedford Heights, Ohio 44146-2597 - 2 - PER CURIAM: Plaintiffs-appellants Hakeem Thornton and Vernique Williams ("appellants") appeal the grant of summary judgment in favor of defendants-appellees Dale R. Richnafsky and the City of Bedford Heights pursuant to the immunity granted by R.C. Chapter 2744. Appellants assign the following error for review: THE TRIAL COURT ERRED BY GRANTING THE MOTION FOR SUMMARY JUDGMENT OF DEFENDANTS RICHNAFSKY AND CITY OF BEDFORD HEIGHTS. Finding the appeal to lack merit, the judgment of the trial court is affirmed. I. On September 19, 1993, Officer Dale Richnafsky of the Bedford Heights Police heard a general notice over his police radio that a Streetsboro police officer was in pursuit of a stolen pickup truck. In response to the information the pickup truck was northbound on I-271 heading towards I-480, Officer Richnafsky proceeded to the area of Rockside Road and I-271. The dispatcher relayed the information that the Streetsboro patrol officer had the vehicle stopped on the exit ramp onto Rockside Road. As Officer Richnafsky heard this transmission, he was exiting the Ramada Inn driveway onto Rockside Road. The pickup truck was driven off the exit ramp, nearly striking Richnafsky's patrol car. Richnafsky pursued the pickup truck while activating his overhead lights and siren. The driver of the pickup truck, Andrew Pfost, failed to pull over and stop his vehicle but continued to flee with Richnafsky in - 3 - pursuit. Officer Richnafsky notified his dispatcher about the pursuit but did not receive any instructions in response. Throughout the chase, Officer Richnafsky continued to inform his dispatcher about his location, direction of travel, and the names of the cross streets as the vehicles drove past. The pursuit continued into the city of Solon. Officer Richnafsky drove at approximately fifty-five to sixty miles per hour, following the pickup truck at a distance of about thirty feet. When the chase neared the intersection of Old South Miles and Aurora Road, Pfost steered the pickup truck left of center directly toward another police vehicle. When that police car moved over a lane, Pfost suddenly braked and swerved to the right cutting off Officer Richnafsky who had stayed in the eastbound lane behind Pfost. The pickup truck traveled across all three lanes toward the curb. Officer Richnafsky braked and steered to the right to avoid colliding with Pfost's vehicle. Officer Richnafsky's police car struck the curb with his vehicle's right side wheels going over the curb and onto the grass. Officer Richnafsky attempted to steer further to the right onto the grass but the curb hooked the tires on the left side of his vehicle. It slid along the edge of the curb up to the intersection where the front push bumper of the police vehicle struck the rear of appellants' automobile. Officer Richnafsky's vehicle was traveling at approximately ten miles per hour at the time of impact. The damage to appellants' car - 4 - consisted of a scratch to the right rear bumper and the loss of the "Chevrolet" insignia. Appellants filed a complaint against Officer Richnafsky, the City of Bedford Heights, and Andrew Pfost. Service never was perfected on Pfost. Officer Richnafsky and Bedford Heights filed a motion for summary judgment arguing both were immune as Richnafsky was responding to an emergency call and did not engage in willful or wanton misconduct. Appellants argued in response that whether Richnafsky's conduct was willful or wanton was a disputed material fact, thereby precluding summary judgment. The trial court granted the motion for summary judgment. II. In their assignment of error, appellants contend the trial court erred in granting summary judgment because there are genuine issues in dispute regarding material facts and that the issue of whether Officer Richnafsky's conduct was wanton and reckless should be resolved by a jury. Appellants assert only a trial on the merits can adequately address all of the facts, issues, and legal principles present in this case. This case was decided by summary judgment. Civ.R. 56(C) provides the summary judgment is proper if the trial court determines that: (1) No genuine issue as to any material fact remains 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 conclu- sion, and viewing such evidence most strongly - 5 - in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327. Summary judgment is a procedural device designed to terminate litigation and to avoid a formal trial where there is nothing to try. Norris v. Ohio Std. Oil Co. (1982), 70 Ohio St.2d 1. Summary judgment is not appropriate where the facts are subject to reason- able dispute when viewed in a light favorable to the nonmoving party. Mers v. Dispatch Printing Co. (1985), 19 Ohio St.3d 100, 104. The moving party is entitled to summary judgment if the nonmoving party fails to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett (1986), 477 U.S. 317, 322. A political subdivision is liable for injury, death, or loss to persons or property caused by the negligent operation of a motor vehicle by an employee upon the public roads, highways, or streets when that employee is engaged within the scope of his employment and authority. R.C. 2744.02(B). An exception to this liability exists when 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. R.C. 2744.02(B)(1)(a). The employee is immune from liability unless his acts or omissions were conducted with malicious purpose, in bad - 6 - faith, or in a wanton or reckless manner. R.C. 2744.03(A)(6)(b). Appellants argue these provisions of R.C. 2744 do not apply as there was evidence Bedford Heights was negligent in its training and instruction of Officer Richnafsky in properly operating a vehicle during an emergency run. Appellants further maintain there was evidence indicating Officer Richnafsky's conduct in operating his police vehicle was willful or reckless. Immunity applies when a police officer operating a motor vehicle while responding to an emergency negligently injures an individual or property. That immunity is lost if the vehicle was operated in a wanton or willful manner. Rodgers v. DeRue (1991), 75 Ohio App.3d 200. If Officer Richnafsky's conduct was not willful or wanton, Bedford Heights is immune. See York v. Ohio State Highway Patrol (1991), 60 Ohio St.3d 143. Willful or wanton misconduct connotes behavior demonstrating a deliberate or reckless disregard for the safety of others. Reynolds v. Oakwood (1987), 38 Ohio App.3d 125, 127. Wanton misconduct is the failure to exercise any care whatsoever toward one to whom a duty of care is owed under circumstances in which there is a great probability of resulting harm. Hawkins v. Ivy (1977), 50 Ohio St.2d 114, 117-118. In Thompson v. McNeill (1990), 53 Ohio St.3d 102, the court used the definition of "recklessness" found in the Restatement of Torts 2d which states: "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 - 7 - 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 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. Id. p. 104-105. The Thompson court also applied the comments regarding recklessness to willful and wanton conduct. Id. p. 104. "Reckless" as used in R.C. 2744.03(A)(6)(b) means a perverse disregard of a known risk which suggests conduct more egregious than simple carelessness. Jackson v. Butler Cty. Bd. of Cty. Commrs. (1991), 76 Ohio App.3d 448. The terms "willful," "wanton," and "reckless" connote a mental state of greater culpability than negligence. Hackathorn v. Preisse (1995), 104 Ohio App.3d 768. With both lights and siren activated, Officer Richnafsky was pursuing what was alleged to be a stolen vehicle. Traffic was light and visibility good during the pursuit. The pickup truck constituted a hazard to the public safety as Pfost, while driving at high rates of speed, attempted to elude police from Streetsboro to Solon. Pfost nearly struck Officer Richnafsky's vehicle and later drove directly at another police vehicle before cutting off Richnafsky's police cruiser moments before the accident. - 8 - Officer Richnafsky drove at approximately fifty miles per hour in an effort to stop Pfost. Richnafsky was forced by Pfost's actions to brake and steer toward the curb to avoid a collision with Pfost. Richnafsky attempted to avoid striking appellants' automobile by driving onto the grass but was unable to do so when his leftside tires became hooked on the curb. The evidence in the record does not indicate Officer Richnafsky acted in a willful or wanton manner. He did not demonstrate a deliberate or reckless disregard for the safety of others as he drove through little or no traffic with good visibility. It was the unanticipated actions of Pfost by swerving across three lanes that precipitated the accident. Appellants argue that the issue of wanton misconduct is normally to be resolved by a jury. See Matkovich v. Penn. Cent. Transp. Co. (1982), 69 Ohio St.2d 210. However, the standard for showing wanton misconduct is high. Wanton misconduct is the failure to exercise any care whatsoever. The evidence must establish a disposition to perversity on the part of the tortfeasor. Fabrey v. McDonald Police Dept, (1994), 70 Ohio St.3d 351. The evidence in the instant case does not show Officer Richnafsky's conduct was willful, wanton or reckless. Further, whether immunity may be invoked is a purely legal issue which is properly determined by a court prior to trial preferably on a motion for summary judgment. Nease v. Medical College Hosp. (1992), 64 Ohio St.3d 396, 400. The trial court did not err in - 9 - granting the motion for summary judgment of Officer Richnafsky and the City of Bedford Heights. Appellants' assignment of error is overruled. Judgment affirmed. - 10 - It is ordered that appellees recover of appellants 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. LEO M. SPELLACY, CHIEF JUSTICE DAVID T. MATIA, JUDGE TIMOTHY E. McMONAGLE, JUDGE N.B. This is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(B) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .