Merit Decision: Township Not Liable for High-Speed Chase Accident Caused by Police Officer. McConnell v. Dudley

“R.C. 2744.02(B)(1)(a) makes plain that it is the driver’s conduct and culpability in operating a vehicle—not the political subdivision’s—that determines whether the political subdivision may be held liable under the statute.”

Justice Kennedy, majority opinion

On November 20, 2019, the Supreme Court of Ohio handed down a merit decision in McConnell v. Dudley, Slip Opinion No. 2019-Ohio-4740. In an opinion written by Justice Kennedy, the Court held that a political subdivision’s hiring, training and supervision of a police officer does not constitute “operation of a motor vehicle” for purposes of imposing liability on the political subdivision for an accident caused by the police officer during an emergency run. Justices French, DeWine, and Kennedy joined the majority opinion in full. Chief Justice O’Connor and Justice Donnelly concurred in judgment only, and Justice Stewart wrote a brief separate concurrence. The case was argued June 12, 2019.

Case Background

Coitsville Township Police Officer Donald Dudley, Jr. was investigating a stolen vehicle. In attempting to follow the suspects he thought were involved, he began a high-speed chase. As he approached an intersection, he was trying to radio his position and failed to notice that the light was red when he entered the intersection. A house and a tree obstructed his view to the right, so he also failed to see a westbound car driven by Renee McConnell (“McConnell”) who was on her way to work. Dudley collided with McConnell’s car. McConnell sustained serious injuries.

McConnell and her husband and children sued Officer Dudley, Coitsville Township and its board of trustees, and the Coitsville Township Police Department (collectively, “the township”) alleging that Officer Dudley’s negligent, willful, or wanton operation of the police cruiser and the township’s negligent, willful and/or wanton conduct in establishing policies and procedures for pursuit training, and in its hiring, training and supervising of Officer Dudley caused McConnell’s injuries and loss of consortium of her spouse and children.

Officer Dudley and the township moved for summary judgment on the basis of immunity. The trial court denied the motion. The trial court found that although Officer Dudley was operating a motor vehicle within the scope of his employment and in response to an emergency call, there were genuine issues of material fact as to whether his conduct rose to the level of wantonness or recklessness. Wanton misconduct by Officer Dudley would mean the political subdivision could be liable under R.C. 2744.02(B)(1)(a). Wanton or reckless behavior by Officer Dudley would mean he could be liable as an employee of a political subdivision under R.C.2744.03(A)(6)(b). The trial court also found genuine issues of material fact on the claim that the township was negligent in hiring, training, and supervising its officers—which is the subject of this appeal.

The Appeal

The Seventh District Court of Appeals affirmed in part and reversed in part. The appeals court agreed there were genuine issues of material fact as to whether Officer Dudley’s actions constituted willful and wanton misconduct, and whether the township was negligent in training and supervising him. But because the McConnells had failed to plead a claim against Officer Dudley in his individual capacity, the appeals court held that the trial court erred in finding that a genuine issue of material fact existed as to Dudley’s personal liability.

Read the oral argument preview of the case here and the analysis of the argument here.

Key Precedent

R.C. 2744.02(A)(1) (A political subdivision is generally immune from liability for its acts and for the acts of its employees in connection with a governmental function, unless one of the exceptions within the statute applies.)

R.C. 2744.02(B)(1)(a) (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. But political subdivisions are immune from damages caused by a police officer operating a motor vehicle while responding to an emergency call unless the officer’s actions were willful or wanton.)

R.C. 2744.01(C)(2)(a) (“The provision or nonprovision of police, fire, emergency medical, ambulance, and rescue services or protection” is a governmental function.)

Doe v. Marlington, 2009-Ohio-1360 (The exception to immunity in R.C. 2744.02(B)(1) for the negligent operation of a motor vehicle pertains only to negligence in driving or otherwise causing the vehicle to be moved.)

Smith v. McBride, 2011-Ohio-4674 (R.C. 2744.02(B)(1)(a) applies “when an officer is responding to a call to duty, which includes responding to a dispatch for assistance out of a professional obligation to do so.”)

Pelletier v. Campbell, 2018-Ohio-2121 (Determining whether a political subdivision is immune from tort liability involves a three-tiered analysis. First, R.C. 2744.02(A)(1) grants general immunity to political subdivisions. Second, a court must determine whether any exception within R.C. 2744.02(B) is applicable that would expose the political subdivision to liability. Third, a court must determine whether any defense within R.C. 2744.03 is applicable to restore the political subdivision’s immunity.)

Township’s Proposition of Law Accepted For Review

A political subdivision is immune from liability for allegations of negligent hiring, or failure to train or supervise police officers, as such allegations do not fall within any of the exceptions found within R.C. 2744.02(B)(1) through (B)(5).

Does the Court Adopt the Township’s Proposition of Law?

The court agrees with the township that the exception for negligent operation of a motor vehicle provided in R.C. 2744.02(B)(1) does not include negligent hiring, training, or supervising the employee who drove the vehicle.

Position of the Parties

The Township

The township argues that there is no exception to immunity encompassed in R.C. 2744.02(B) for negligence in hiring, training, or supervising its employees, and, of particular significance to this case, that the exception for negligent operation of a motor vehicle provided in R.C. 2744.02(B)(1) does not include negligent hiring, training, or supervising the employee who drove the vehicle. Only the employee’s own actions are relevant in determining whether that employee engaged in willful or wanton misconduct in response to an emergency call.

The McConnells

The defense to liability for emergency calls is not implicated here because it was the township’s own negligence that caused this accident. The township failed to ensure that Officer Dudley was properly qualified, trained and supervised in how to perform a high- speed chase, and this negligence occurred before the emergency run itself, so is actionable pursuant to R.C. 2744.02(B)(1). So, no heightened willful-and-wanton standard review is even necessary.

Merit Decision

Analysis

Executive Summary

It is the employee’s conduct, not that of the political subdivision, that establishes the exception to immunity under the statute. And there is no additional exception to the immunity statute that imposes liability on a political subdivision for its actions in the hiring, training or supervising of an employee.

Quick Refresher on the Three-Tiered Political Subdivision Immunity Statute

Tier I

R.C. 2744.02(A)(1) provides the general grant of immunity to political subdivisions in connection with a governmental function. The operation of a police cruiser in response to an emergency call is indisputably a governmental function. But this immunity is not absolute.

Tier II

R.C. 2744.02(B) provides five exceptions to political subdivision immunity.

Tier III

If any of the five exceptions in Tier II applies, the court determines if any of the defenses in R.C. 2744.03 apply to restore political subdivision immunity.

Tier II Analysis Resolves this Case

One of the exceptions to political-subdivision immunity is negligent operation of a motor vehicle by the political subdivision’s employees. In accordance with the dictionary definition of “operation” approved by the court in Doe v. Marlington, the majority in this case finds that “operation” essentially meaning driving the vehicle or causing it to be moved. And, as Justice Kennedy succinctly notes, “political subdivisions do not drive.”

So, finding as she so often does that no ambiguity in the statutory language simply means the statute is to be applied, not interpreted, Justice Kennedy writes

“Nothing in the plain language of this statute [R.C. 2744.02(B)] provides an additional exception that imposes liability on the political subdivision for its actions in hiring, training, or supervising an employee or entrusting him or her with a vehicle, and we may not add it ourselves under the guise of statutory interpretation.”

Bottom Line

R.C. 2744.02(B) is unambiguous and does not impose liability on a political subdivision for any alleged violation of a duty in hiring, training, or supervising a police officer who later is involved in an accident during a high-speed chase of a suspect. Therefore, summary judgment should have been granted to the township on the McConnells’ claim that the township was negligent, willful and /or wanton in the hiring, training or supervising of Officer Dudley.

Justice Stewart’s Separate Concurrence

Justice Stewart wrote a short paragraph to point out that the while there is no liability for a political subdivision under R.C. 2744.02(B)(1) for negligence in hiring, training, or supervising an employee, evidence of supervisory negligence might still be relevant in determining whether an employee’s operation of a motor vehicle was negligent, or, in a case like this involving a police office on an emergency run, whether the officer’s conduct was willful or wanton.

What Happens to the Case?

It is reversed and remanded to the trial court for further proceedings.

Concluding Observations

Both my student contributors and I correctly called this for the township. Here is some of what I wrote after argument:

Were it up to me with my notorious plaintiff’s heart in torts cases, I’m all in with McConnell, but I don’t think she will fare well here, in the end. I hate these police chases for minor offenses (here, a stolen car) where innocent third parties are seriously injured, where the officer is violating official policy to boot. I’m not sure about the hiring, but there certainly seemed to be negligence in the training and supervising of Officer Dudley in this case. But despite that, I don’t think a majority will shoehorn that negligence into the operation of a motor vehicle exception to immunity…. [I]n the end I see a win here for the Township Defendants that negligent hiring, training, and supervision are not part of the negligent operation of a motor vehicle exception to immunity. “

I also must have anticipated Justice Stewart’s short concurrence, with which I completely agree, when I wrote:

“Whether Officer Dudley’s conduct rose to the level of willful and wanton conduct is a different story, and that issue remains to be determined. His lack of training and supervision should certainly be relevant there.”

We will continue to follow this case on remand.