COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73429 JACQUELYN D. HALL-PEARSON : JOURNAL ENTRY : AND Plaintiff-appellant : OPINION : -vs- : : CITY OF SOUTH EUCLID, ET AL. : : Defendants-appellees: DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 8, 1998 CHARACTER OF PROCEEDING: Civil appeal from the Court of Common Pleas Case No. CP-CV-319678 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: MICHAEL L. WOLPERT, ESQ. JEROME SILVER & ASSOCIATES 3421 Prospect Ave. Cleveland, Ohio 44115 For Defendants-Appellees: VINCENT A. FEUDO, ESQ. JAMES H. GROVE, ESQ. NICOLA, GUDBRANSON & COOPER 1400 Republic Building 25 Prospect Avenue, West Cleveland, Ohio 44115 DYKE, P.J.: -2- Plaintiff Jacquelyn D. Hall-Pearson appeals from the order of the trial court which awarded summary judgment to defendants City of South Euclid and South Euclid Police Officer John H. Crow, Jr. in Hall-Pearson's action for negligence. For the reasons set forth below, we affirm. On March 28, 1995, Radio Shack in South Euclid was robbed by a man wielding a knife. At 12:15 p.m., the police dispatched a report of the robbery which described the assailant and indicated that he was [h]eaded toward Fenwick on foot *** carrying a large knife. Officer Crow immediately responded to the call and at 12:16 p.m., Officer Crow reported that he had been involved in a motor vehicle collision with plaintiff on Fenwick Road. Plaintiff, who was traveling southbound, reportedly observed the police car behind her, traveling southbound and approaching at a great rate of speed. The collision occurred as plaintiff proceeded to turn left into the Stanhope parking lot and Crow's police cruiser was passing her vehicle on the left. Plaintiff filed this action against the City of South Euclid and Officer Crow on December 2, 1996. In relevant part, plaintiff alleged that no emergency was presented, and that Officer Crow failed to activate the cruiser's lights and siren, and operated the vehicle in a reckless and wanton manner. Finally, plaintiff alleged that the city failed to adequately train Officer Crow. On June 13, 1997, defendants moved for summary judgment pursuant to R.C. 2744.02(B)(1)(a) and asserted that the collision occurred while the police officer was responding to an emergency -3- call of an armed robbery and there was no evidence that the vehicle was operated in a wilful or wanton manner. Defendants further maintained that police training is a governmental function to which immunity attaches pursuant to R.C. 2744.02(A). On September 30, 1997, the trial court awarded defendants summary judgment. Plaintiff now appeals and assigns two errors for our review. Plaintiff's assignments of error are interrelated and state: THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT WHEN ISSUES OF MATERIAL FACT REMAINED AS TO WHETHER THE DEFENDANTS QUALIFIED FOR IMMUNITY. THE TRIAL COURT ERRED IN CONSTRUING THE QUEST FOR A SUSPECT ON FOOT AS AN EMERGENCY SITUATION. Within these assignments of error, plaintiff asserts that because the store manager did not call police until after the suspect had left, there was no danger and an emergency ceased to exist. Plaintiff also maintains that reasonable minds could con- clude that the collision was the result of the officer's wanton or wilful misconduct, thereby precluding the attachment of statutory immunity. With regard to procedure we note that summary judgment is a procedural device used to terminate litigation and must therefore be awarded with caution, resolving all doubts in favor of the party opposing the motion. Osborne v. Lyles (1992), 63 Ohio St.3d 326, 333. In order for summary judgment to be properly rendered, it must be determined that: -4- (1) no genuine issue of material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from such evidence that reasonable minds can come to but one conclusion and, reviewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to the party. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327. See, also, State ex rel. Zimmerman v. Tompkins (1996), 75 Ohio St.3d 447, 448. The burden of establishing that there are no genuine issues of material fact to be litigated is upon the party moving for summary judgment. Turner v. Turner (1993), 67 Ohio St.3d 337, 340. If the moving party meets this burden, the non-moving party must then produce evidence pursuant to Civ.R. 56 setting forth specific facts which show that there is a genuine triable issue. State ex rel. Zimmerman v. Tompkins, supra, at 449. With regard to the substantive law, R.C. Chapter 2744 provides a three-tiered analysis for determining the availability of sovereign immunity to political subdivisions. Jones v. Shelly Co. (1995), 106 Ohio App.3d 440, 445. R.C. 2744.02(A)(1) provides that a political subdivision is generally not liable for injury, death or loss to persons or property incurred in connection with the performance of a governmental or proprietary function of that political subdivision. Id.; Horton v. Dayton (1988), 53 Ohio App.3d 68, 70. This provision is generally referred to as the "blanket immunity" provision. Jones v. Shelly Co., supra. R.C. 2744.02(B) then lists five exceptions to the blanket immunity provision. R.C. 2744.02(B)(1) provides an exception to the general rule of immunity for injury, death, or loss to persons -5- or property caused by the negligent operation of any motor vehicle by the political subdivision's employees upon the public roads, highways, or streets when the employees are engaged within the scope of their employment and authority. See Horton v. Dayton, supra. Finally, R.C. 2744.02(B)(1) delineates defenses or additional immunities of subdivisions and employees from the liability imposed in R.C. 2744.02(B). Jones v. Shelly Co., supra. As is relevant herein, R.C. 2744.02(B)(1)(a) provides a full defense to liability when the driver is a police officer operating the motor vehicle while responding to an emergency call and the operation of the vehicle does not constitute willful or wanton misconduct. See, e.g., Rahn v. Whitehall (1989), 62 Ohio App.3d 62, 65-66; Rodgers v. DeRue (1991), 75 Ohio App.3d 200, 202. An emergency call is defined in R.C. 2744.01(A) as: A call to duty, including but not limited to, communi- cations 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. It is the call, not the degree of actual danger which triggers immunity. Brockman v. Bell (1992), 78 Ohio App.3d 508. The Brockman court stated: Sovereign immunity from liability for negligent operation of motor vehicles by fire fighters responding to "emer- gency alarm" within meaning of immunity statute included ambulance driver responding to 911 emergency call who was proceeding toward place that he believed contained fire in progress at time of collision with automobile driver, even though no fire actually existed and only investi- gative action was taken. R.C. S2744.02(B)(1)(b). -6- Accord Fish v. Coffey (1986), 33 Ohio App.3d 129, wherein the court considered this issue and stated: The appellant has submitted three assignments of error, the first of which has been stated as follows: The trial court erred in granting defendants' motion for summary judgment since a material question of fact exists as to whether defendant, Coffey, was responding to an "emergency call." In support of the alleged error, the appellant contends that a factual determination was indispensable to the conclusion that an emergency situation existed at the time of the accident, but the record fails to show that any evidence was produced to contradict the affidavits submitted by the defendants to show that Officer Coffey was responding to a burglar alarm under circumstances mandating prompt action. Moreover, the courts of this state, under similar circumstances, have recognized that it is the urgent call to duty rather than the actual degree of danger that triggers the immunity afforded by R.C. 701.02 [the predecessor of R.C. 2744, see Rodgers v. DeRue, supra, at 203]. Agnew v. Porter (1970), 23 Ohio St.2d 18, 52 O.O.2d 79, 260 N.E.2d 830; Spencer v. Heise (1958), 107 Ohio App. 505, 80 Ohio Law Abs. 272, 9 O.O.2d 48, 158 N.E.2d 570. As specifically observed in the Agnewcase, "'[a]n officer must be able to respond to the calls of others that help is needed immediately without the need to initiate a cross-examination calculated to elicit the operative facts upon which a judgment of urgency is based.'" Id., 23 Ohio St.2d at 25, 52 O.O.2d at 83, 260 N.E.2d at 834. In a comparatively recent case, this court has further stated that "where it is undisputed that a priority one call was issued for a current burglary, the existence of an emergency condition is established." Sichman v. Kennaley (Dec. 18, 1985), Montgomery App. No. 9450, unreported, at 8. Thus, in the absence of any dispute as to the underlying facts of this case, the common pleas court cannot be faulted for holding as a matter of law that Officer Coffey was on an "emergency call," and that the defendants were entitled to summary judgment because of the immunity provided in R.C. 701.02. The first assignment of error is overruled. It is also clear that the officer responding to the emergency call need not activate the siren and lights of the vehicle in order -7- for the response to constitute an emergency call within the meaning of R.C. 2744.01(A). Liscomb v. Lewis (1993), 85 Ohio App.3d 97; Horton v. Dayton, supra, at 71; Moore v. Columbus (1994), 98 Ohio App.3d 701, 709. Indeed, courts have recognized that it is on occasion unreasonable to expect police officers to use warning signals where this would substantially reduce their efforts to arrest the suspect or suspects being pursued. See Quappe v. Ohio Department of Public Safety (1997), 83 Ohio Misc.2d 74, 77. We further note that the issue of whether an officer is on an emergency call may be determined as a matter of law where triable questions of fact are not present. Lewis v. Bland (1991), 75 Ohio App.3d 453, 457. Further, this court has upheld determinations that police officers were on emergency calls in Herd v. Shaker Hts. (May 17, 1990), Cuyahoga App. No. 57001, unreported, (officer responding to an aggravated robbery in progress at a Pizza Hut); and Gould v. Britton (Jan. 30, 1992), Cuyahoga App. No. 59791, unreported, (police officer responding to the location where a shooting suspect had been seen). Finally, we note that willful conduct implies an act done intentionally, designedly, knowingly, or purposely, without justifiable excuse. State v. Earlenbaugh (1985), 18 Ohio St.3d 19, 21. Wanton conduct is the failure to exercise any care whatsoever toward those to whom a duty of care is owed, under circumstances where there is a great probability that harm will result. Guysinger v. K.C. Raceway, Inc. (1990), 54 Ohio App.3d 17, -8- 17. Where reasonable minds cannot differ, the issue of whether there is wanton or wilful misconduct can be decided as a matter of law. Lewis v. Bland, supra; cf. Rodgers v. DeRue, supra, at 203- 204. Applying all of the foregoing, we note that in this instance, the undisputed evidence demonstrates that Officer Crow was responding to a radio dispatch of an armed robbery at Radio Shack and that the collision occurred within one minute of receiving this call. The call contained a description of the suspect and also stated that he was fleeing on foot. Thus we conclude that Officer Crow was clearly on an emergency call in this instance. Further, the undisputed facts of record indicate that plaintiff saw Officer Crow approaching quickly in the same direction as she was traveling and she nonetheless proceeded to make a left turn. Plaintiff was unable to estimate Crow's speed but Crow averred that he was traveling between fifteen and twenty miles per hour. The officer proceeded with assured clear distance ahead, until plaintiff initiated her left hand turn into his lane of travel, despite admittedly observing the police cruiser approaching. Accordingly, reasonable minds could only conclude that Officer Crow was not operating the cruiser in a wanton or willful manner. Finally, as to the city's training of Officer Crow, we note that in McCloud v. Nimmer (1991), 72 Ohio App.3d 533, this court determined that the training of police is a governmental function to which immunity attaches. -9- In accordance with the foregoing, the trial court properly granted defendants summary judgment, and plaintiff's first and second assignments of error are without merit. Affirmed. -10- It is ordered that appellees recover of appellant its 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. NAHRA, J., AND KARPINSKI, J., CONCUR. ANN DYKE PRESIDING JUDGE N.B. This entry 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(E) 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 .