[Cite as Marquez v. Ohio Dept. of Pub. Safety , 2023

- Ohio

- 4141.]

IN THE COURT OF CLA IMS OF OHIO

{¶1} Bef ore the C o urt for a non

- oral hearing is Defendant s ’ Motion for Sum m ary Judgment pursuant to Civ.R. 56 and L.C.C.R. 4

. Fo r the following reasons, Defendant s ’
Motion is GRANTED

. {¶2} Motions for summary judgment are reviewed under the stan dard set forth in Civ.R. 56(C), whi ch states, in part: Summ a r y judgment shall be rendered fo rthwit h if the pleadings, depositions , answers to interrog at ories, written admis sion s, affidavits, transcrip ts of evidence, and written stipulations of fact, if any , tim ely filed in
th e action, show that there is no genuine i ssue as to any material fact an d
that the moving party is entitled t o summary judgment as a matter of law.
No evid ence or stipulation may be considered except as stated in this rule. A summary judgm ent shall not be rendered unle ss it appears from t he

e v i dence or stipulation, and onl y from t he evidence or stipulation, tha t reasonable minds ca n come to but one conc lusi on and that conclusion i s adverse to the party against whom the motion for summa ry ju dgment is made, that party bei ng entitled to have the e v idence or stipulation constru ed
most strongly in the party’s favor. “[T]he moving party b ea rs the initial respo nsib ility of informing the t rial court of the basis for the motion, and identifying those portions of the record before the trial court whi ch LUCIA T. MARQUEZ, et al.

Plaintiffs

v.
OHIO DEPARTMENT OF PUBLIC SAFETY, et al.

Defendants Case No. 2022

- 00682JD
Judge Lisa L. Sadler Magistrate Robert Van Schoyck

ENTRY GRANTING DEFENDANT S ’ MOTION FOR SUMMARY JUDGME NTCase No. 2022

- 00682JD

- 2

- ENT RY

d e m onstrate the absence of a gen ui ne iss ue of material fact on a materi al element of the

non mo ving party’s claim.” Dr esher v. Burt

, 75 Ohio S t.3d 280, 292 , 662 N.E.2d 264 (1996) . To meet this initial burden, th e movi ng party must b e able to point to eviden t iary
materials of the type li sted in Civ.R. 56( C). I d . at 292

- 293

. {¶3} If the moving party meets its initial burden, the nonmoving party bears a reciprocal burden outlined in Civ.R. 56(E), which states, in part:
When a motion for sum mary ju dgment is made and supported a s provided
in this rule, an adverse party may not rest up on the mere allegations or denials of the party’s pleadings, but the party’s response, by affidavit or as otherwise provided in this rule, mu st set forth specific facts showing that
there is a genuin e issue for trial. If the party does not so respond, summ ary judgment, if appropriate, shall be entered ag ainst the party. {¶4} On September 18, 2020, Plaintiff s , Lucia Marquez and Lawrence Orr, and Ohi o State Highwa y Patrol (OSHP ) Trooper Sarah A. Korsten ( Trooper Korste n) 1 we re involved in a motor vehic le collision at the intersection of La ke Avenue and Griswold Road in Elyria

. (Complaint ¶¶ 4

- 5, Korsten A ffidavit ¶¶ 3

- 4 ; Defendants ’ Ex hibit A ; Plaint iffs ’
Exhibit 2 ). 2 Plaintiffs were tr aveling in a personal motor vehicle so uthbound on Lake
Avenue
, approaching Griswold Road
, to the left of Tr ooper Korsten in the left turn lane

w ith a green left turn arrow. ( Plaintiff s ’ Exhibit 1, K orsten Deposition 1 4:15

- 15:1; 18: 1

- 19:23 )

. Trooper K orsten , in a marked OSHP c ruiser in the co urse and scope of emplo yment with Defendants
, was traveling southboun d on Lake Avenu e, stopped at a red light in the through lane at Gris wold Road , when she observed a white SUV ru n the red light on northbound Lake Avenue

. ( Compl. ¶ 3; Korsten Aff. ¶ 3; D ef s. E x. A ; Pls. Ex.
2 )

. A s a t rooper with the OSHP
, Trooper Korsten is t asked with pro moting traffic saf et y and “ the majority of [ her] law enforcement activities involve traffic enforcement, responding to accidents, stopping those violatin g speed limits and otherwi se preventing

1 Trooper Sarah A. Korsten is refe rred to as Sarah A. Marino in Plai ntiff s ’ Complaint, but De fendants state she has si nce changed her name. All parties use Trooper Korsten in th eir briefing and the Court will refer to her accordin gly.

2 Defendant s ’ Exhibit A and Plaintiffs ’ Exh ibit 2 are copies of Trooper Korsten ’ s dashcam video on the date of th e collision.Case No. 2022

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dangerous drivin g on Ohio ’ s roadwa y s. ” (Korsten A ff. ¶ 2 )

. A fter witnessing the traffic
violation , Trooper Korsten checked for traffic and initia te d a le ft u - t urn. (Korsten Aff. ¶ 4 ; Pls. Ex. 1, Korsten Depo. 16:24

- 17:1; 17:20

- 2 5 ; Def s. E x. A ; Pls. Ex. 2 )

. P rior to initiat ing her emergency lig hts
, Trooper K orst en made impact with t he front passenger side bumper/fender of Plaintiffs ’ vehicle

. (Korsten Af f. ¶ 4 ; Pls. Ex. 1, Kors t en Depo. 32 : 13

- 20 ; Def s. E x. A ; Pls. Ex. 2 ). At th e time of impact, Trooper K orsten was traveling

“ approx imately less than 5 MPH. ” (Korsten Aff. ¶ 4 ; Def s. E x. A ; Pls. Ex. 2 ). Plain tiffs claim that Trooper Korsten negligently ch anged lane s into their vehicle, which resulted in injuries to each of them

. ( Com pl. ¶¶ 8

- 9; 14

- 15 )

. Moreover, Plaintiffs allege that Troo per K orste n “ was not engaged in an ‘ emergen cy call ’ at th e time o f th e collision

. ” ( Compl

. ¶
7 )

. {¶5} Defendant s asser t that they are immu ne from liability for any negligence on the part of Troo per Korsten pursuant to the public duty doctrine
, R.C. 2743.02
, and emergency call doctrine
, 2744.02, et seq . More ove r, Defenda nts assert that no claims
remai n to be lit i gated bec ause Plaintiffs have not ple aded willful or wanton conduct on the part of Tr ooper K o rsten as to provide a defense to the emerge ncy ca l l do ctrine

. Plaintiffs concede that immunity analysis is app ropri ate pursua nt to R.C. 2743.02 a nd R.C. 27 44.02

e t se q

. , b ut assert that a genuine issue of material fact exists as to whether Troop er Ko rsten ’ s actions wer e willful or wanton misconduct

. {¶6} The Supreme Court of Ohio has held that “[i]n the absence of will ful or wa nton misconduct, the State Highwa y Patrol is immune from liability for injuries caused by a patrol officer in the operation of h is vehicle while responding to an emerge ncy call.” Baum v. State Hw

y. Patrol , 72 Ohio St.3d 469 , 472, 650 N.E.2d 1347 (1995)

. “In adopting this rule of law, th e Supreme Court of Ohio reasoned that the state should enjoy the same level of immunity that th e General Assembly affords to counties, cities, and
to wnships.” Robertson v. Dept. of Pub. Safety , 10th Dist. Frank lin No. 06AP

- 1064, 2007

- Ohio

- 5080, ¶ 13, citi ng Baum at 472. “P ursuant to R.C. 2744.02(B)(1)(a), counties, cities, and townships are immune from liability when ‘[a] member of a municipal corporation police d epartment or any other police agency was operati ng a motor vehicle while responding to an eme rgency call and the operation of the vehicle did not constitute willful or wanton misconduct.’” Id.Case No. 2022

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{¶7} For purposes of R.C. Chapter 2744, “‘[e]mergency call’ means a call to duty, including, but not limited to, c ommu nications from citizens, police dispatches , and personal obse rvations by peace officers of inherently dangerous situations that
demand an immediate response on the part of a peace officer.” R.C. 2744.01(A ). An emergency call in this context “need not inv olve an inherently dangerous situation.” Smith
v. McBride , 1 30 Ohio St.3d 51, 2011

- Ohio

- 4674, 955 N.E.2d 954, ¶ 21. Rather, the
determi nation “turns on whether an officer was acting pursuant to a call to duty at the time of the accident.” Id. ; see also Posner v. De pt. of Pub. Safety , 10th Dist. Franklin No.
99AP

- 594, 2000 Ohio App. LEXIS 4496 , *7 (Sept. 29, 2000) ( “ The focus, rather, is whether an immediate response is required. ” )

. {¶8} Defendants assert, and P laintiff s offer no argument or evidence to the contrary, that Trooper K orsten was responding to an emergency c all at the time of t he
collision. While Plaintiffs pl ead in their Complaint that “ Trooper [Korsten] was not engaged in an ‘ emergency call ’ at the t ime of th e collision, ” without factual allegations,
this is a legal conclusion. A llegations in a complaint cannot appe ar as legal conclusions, they must be su ppo rted by factual alle ga tions

. See Roon ey v. O hio State H wy. Patrol
, 2017

- Ohi o
- 1 123, 87 N.E.3d 777, ¶ 22 (10 t h Dist.)

. The uncontroverted evidence presented pursua nt to Civ.R. 56 (C) shows that Tr ooper K orsten was initiating purs uit of
a driver who m she personally observed run a red light

. Therefore, r easonable minds can only conclude that Trooper Korsten was responding to an emergency call at the time of
the collision. {¶9} As previously sta ted, the decision of the Supreme Court of Ohio in “ Baum * *
* preclude d liability for neglige nce arising out of a state trooper ’ s operation of his vehicle while responding to an emergency call * * *. ” Walla ce v. Ohio Dept. of Commerce , 96 Ohio St.3d 266, 2002

- Ohio

- 4210, 7 73 N.E. 2d 1018, ¶ 31, fn. 9

. Therefore, under Baum
, Defendants are entitled to immunity as a matter of law on Plaintiffs ’ claim of negligence
, which is the sole theory of liability in their Complaint. A lthough Plaint iffs a rgue that the rule set forth in Baum does not provide immunity for willful or wanton misconduct, Plaintiff s did not plead or sub sequently amend their C omplaint to reflect a claim for the “ willful or
wanton misconduct ” standard required for overcoming D efenda nts ’ immun ity pursuant to R.C

. 2744.02(B)(1)( a)
, which bars them from raising these issues on summary jud gment

.Case No. 2022

- 00682JD

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Munday v. Lincol

n Heights , 1 st D ist. Hamilton No. C

- 120431, 2013

- Ohio

- 3095, ¶ 39 ( In
relation to the “ will f ul or wanton misc onduct ” st andar d pursuant to R.C. 2744.02( B)(1) ( a )
,

“ because [plaintiff] failed to allege that [the officer ’ s] operation of the police cruiser while responding to an emergency call constituted willful or want on misconduct, the village successfully asserted the defense set forth in R.C. 2744.02(B)(1)(a) t o [plaintiff ’ s] clai m [ of negligence]

. ” ) ; see also Pitzer v. Blue Ash
, 1 st Dist. Ha milton No. C

- 180033
, 2019

- Ohio

- 2889 , ¶ 7 (In relation to the “ will f ul or wanton misc onduct ” st andard pursuant to R.C. 2744.02( B)(1)(b)
, “ [p laintiff ’ s] failure to plead cor rectly, or subsequently amend the complaint to reflect this standard , barred [ plaintiff ] from raising these issues on summary judgment

. ” ) ; Williams v. S tefka , 8 th Dist . Cuyahoga No. 96145 , 2012

- Ohio

- 353, ¶ 16 ( In
relation to the “willf ul or wanton misc ondu ct ” st andard pursuant to R.C. 2744.02(B)(1)( c )
,

“ under such circumstances a party is precluded from arguing genuine issues of material fact as to willfu l and wanton misconduct on summary judgeme nt

. ” )

. {¶10} I t is noted that , in addition to the immuni ty furnished under Baum and R.C. 2744.02 (B)(1)(a)
, D efendants argue they are also immune from liability under the public duty rule set forth in R.C. 2743.02(A)( 3)(a) ( “ Except as provided in division (A)(3)(b) of this section, the state is immune from liability in any ci vil action or proceeding involving the performance or nonperformance of a public duty

. ” ). Because B aum and R.C. 2744.02( B)(1)(a) plainly confer D e fendants with immunity on Plaintiff ’s clai m of negli gence , however, the Court need not determine the applic ability of the public duty rule, which is independent of th e rule establishe d in Baum

. See Wallace at ¶ 31, fn. 9 ( “ Baum did not , howeve r, involve the public

- duty rule. ” ) ; Dunlap v. Ohio Dept. of Pub. Safety , Ct. of Cl. No. 2016

- 00302 (June 7, 2017). {¶11} In s um mary, D efendant s ha ve m et their burden on summary j udgment.
There are no ge nuin e issues of mat erial fact

. D efendant s are immune from Plaintiff s ’ claim of negligence and are entitl ed to judgment as a matter of law. {¶12} For these reasons
, D efendan t s ’ M otion for Summ ary Jud gment is GR ANTED and judgment is hereby rendered in favor of D efendants . Court c osts are assessed against P laintiff s . T he C lerk shall serve upon all pa rties notice of this judgment
and its da te of entry upon the journal.Case No. 2022

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LISA L. SA DL ER Judge

Filed October 2 0 , 2023 Sent to S.C. Reporter 1 1 / 16 / 23