[Cite as Browning v. Fostoria, 2010-Ohio-2163.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

SENECA COUNTY 

 

ROXANN BROWNING, CASE NO. 13-09-28 

 PLAINTIFF-APPELLANT, 

 v. 

CITY OF FOSTORIA, ET AL., O P I N I O N 

 

 DEFENDANTS-APPELLEES. 

 

Appeal from Seneca County Common Pleas Court 

Trial Court No. 08-CV-0463 

Judgment Affirmed 

Date of Decision: May 17, 2010 

 

APPEARANCES: 

Charles R. Hall, Jr., Appellant 

Frank H. Scialdone, for Appellee 
Case No. 13-09-28 

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Rogers, J.

{¶1} Plaintiff-Appellant, Roxann Browning, appeals from the judgment of 

the Court of Common Pleas of Seneca County granting the City of Fostoria and 

Officer Lucas Elchert’s joint motion for summary judgment. On appeal, 

Browning argues that the trial court abused its discretion in granting summary 

judgment where genuine issues of material fact existed as to whether Officer 

Elchert was responding to an emergency call and whether his actions constituted 

willful and wanton misconduct such that both the City of Fostoria and Officer 

Elchert were immune from liability pursuant to R.C. 2744.02 and R.C. 2744.03. 

Based on the following, we affirm the judgment of the trial court. 

{¶2} In September 2008, Browning filed a complaint against the City of 

Fostoria (“Fostoria”) and Officer Elchert claiming damages in excess of $25,000 

proximately caused by Officer Elchert’s willful and wanton conduct in driving 

through a red light in response to a dispatch call and colliding with her vehicle and 

seriously injuring her. In her complaint, Browning alleged that Fostoria 

negligently trained and supervised Officer Elchert, and that Fostoria was not 

protected by sovereign immunity, as an exception to immunity applied for injuries 

sustained due to a police officer’s willful and wanton operation of a motor vehicle 

while responding to an emergency dispatch call. 
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{¶3} In November 2008, Fostoria and Officer Elchert filed a joint answer 

to Browning’s complaint and included an affirmative defense stating that it was 

protected by political subdivision sovereign immunity pursuant to R.C. 2744.02, 

as Officer Elchert acted in good faith while responding to an emergency. 

{¶4} In April 2009, Fostoria and Officer Elchert filed a joint motion for 

summary judgment pursuant to Civ.R. 56, asserting that R.C. 2744 provided 

immunity for political subdivisions; that one exception to immunity was contained 

under R.C. 2744.02(B), negligent operation of a motor vehicle; that there was a 

complete defense to this immunity exception contained in R.C. 2744.02(B)(1)(a) 

where a police officer operated a motor vehicle in response to an emergency call 

and the operation of the vehicle was not willful or wanton misconduct; that 

negligent supervision or training was not an exception to political subdivision 

immunity; that Officer Elchert acted within the scope of his employment when he 

operated his motor vehicle in response to an emergency dispatch concerning a 

fight at a local trailer park; that Officer Elchert did not act willfully or wantonly 

while driving his vehicle to the scene of the dispatch, as his vehicle’s lights and 

sirens where activated, and he reduced his speed when he approached the 

intersection and checked traffic in both directions, observing that motorists had 

stopped to yield the right of way; and, consequently, that there was no genuine 

issue of material fact as to whether Officer Elchert and Fostoria were immune 

from liability. 
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{¶5} Subsequently, Browning filed a response to the motion for summary 

judgment, stating that genuine issues of material fact existed on the questions of 

whether Officer Elchert was responding to an emergency call pursuant to R.C. 

2744.02(B)(1)(a), as the dispatch records indicated that Officer Elchert was 

cleared of responding to the dispatch call approximately three minutes prior to the 

accident, and whether Officer Elchert operated his vehicle in a willful and wanton 

manner, as he was instructed by another officer to slow down, he admitted to not 

knowing the guidelines for responding at a high rate of speed, he could not 

remember his speed before the accident, and he received a write-up as a result of 

the accident. 

{¶6} Furthermore, the deposition of Officer Elchert was filed, wherein he 

stated that he has been a police officer with Fostoria for a year-and-a-half; that, in 

March 2008, he had been a police officer with Fostoria for nine months; that he 

was on probation for the first twelve months of employment and successfully 

completed the probationary period; that the policies and procedures for Fostoria 

Police included guidelines about responding to a call for service at a high rate of 

speed, although he did not know the guidelines verbatim in March 2008; and, that 

the guidelines provided that, when approaching a red light when responding to a 

call with lights and sirens, he must slow down or stop to assure the intersection is 

clear. 
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{¶7} Officer Elchert further stated that, on March 22, 2008, he received a 

call for a fight in progress at Nye’s Trailer Park (“Nye’s”); that he had responded 

to numerous other calls at Nye’s in the past, and he sometimes responded with 

lights and sirens; that three other officers in two separate vehicles also responded 

to the call with him; that he turned on his lights and sirens to respond to the call; 

that he could not recall at what rate of speed he was traveling; that, as he 

approached an intersection with a red light in his direction, he reduced his speed, 

but he did not recall by how much; that, as he approached the intersection, he 

observed traffic had stopped in the immediate area to yield the right of way; that, 

as he then proceeded through the intersection, he observed Browning’s vehicle 

approaching eastbound; that he was unable to stop in time, and he struck the front 

passenger side portion of her vehicle; that he could not recall if Browning was 

operating her vehicle at a high rate of speed as she entered the intersection; that 

one of the officers traveling behind his vehicle told him to slow down via the radio 

after the accident; that he did not remember receiving a call prior to the accident 

indicating that the fight was over at Nye’s; that, according to the dispatch activity 

records, there was a call at 17:59 removing him from responding to Nye’s; that he 

believed he was removed from responding because of the accident; that there was 

also a dispatch call at 18:02 regarding his accident with Browning; that there was a 

two-and-a-half minute difference between the dispatch activity removing him 

from the call to Nye’s and the call regarding his accident; that he was disciplined 
Case No. 13-09-28 

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with a “written verbal write-up” as a result of his failure to ensure the intersection 

was clear (Elchert dep., pp. 12-13); and, that he did not dispute the write-up. 

{¶8} Browning’s deposition was also filed, wherein she stated that she 

was not using her cell phone as she was approaching the intersection shortly 

before the accident; that she did not have a hearing problem; that, as she was 

approaching the intersection, she did not hear police sirens; that, as she entered the 

intersection on a green light, she saw a police cruiser, and it struck her vehicle 

within seconds; that she did see the lights from the police cruiser; that she did not 

attempt to swerve out of the way or brake to avoid the collision; that she did not 

know how fast the police cruiser was traveling; that she was driving approximately 

fifteen or twenty m.p.h. at the time of the accident, and the police cruiser was 

traveling faster than she was; and, that she had not taken any prescription 

medications that day or consumed any alcoholic beverages. 

{¶9} In June 2009, subsequent to a hearing on the matter, the trial court 

granted Fostoria’s and Officer Elchert’s joint motion for summary judgment. 

{¶10} In July 2009, the trial court, upon its own motion, ordered Browning 

to pay court costs, and Browning subsequently appealed the trial court’s grant of 

summary judgment. However, we subsequently dismissed her appeal due to the 

lack of a final appealable order. 
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{¶11} In September 2009, the trial court filed a judgment entry, again 

granting Fostoria’s and Officer Elchert’s joint motion for summary judgment. The 

judgment entry provided as follows: 

This matter comes before the Court on the motion of defendants 

for summary judgment pursuant to Civil Rule 56. Plaintiff filed 

a response to defendants’ motion. Defendants filed a reply. A 

hearing was held on June 23, 2009. 

The Court has been fully advised, having reviewed the motion, 

memoranda, pleadings, depositions, exhibit, affidavit and 

applicable law, and having heard argument of counsel. 

For the reasons stated on the record, the Court finds that there 

does not present a triable question of fact regarding the material 

issues of 1.) the existence of the emergency call at or near the 

time of this accident and 2.) whether there was willful or wanton 

misconduct by the police officer. The Court further finds that 

the Defendants are entitled to summary judgment against 

Plaintiff on all three claims for relief pursuant to Civil Rule 56 

as a matter of law. 

Judgment is rendered in favor of the Defendants and against the 

Plaintiff on all three claims presented. Plaintiff’s Complaint is 

dismissed in its entirety. 

(Sep. 2009 Judgment Entry, pp. 1-2). 

{¶12} It is from the trial court’s September 2009 judgment entry granting 

summary judgment to Fostoria and Officer Elchert that Browning appeals, 

presenting the following assignment of error for our review. 

THE TRIAL COURT ABUSED ITS DISCRETION BY 

GRANTING THE APPELLEES [SIC] MOTION FOR 

SUMMARY JUDGMENT. 
Case No. 13-09-28 

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{¶13} In her sole assignment of error, Browning argues that the trial court 

erred in granting summary judgment to Fostoria and Officer Elchert. Specifically, 

she contends that genuine issues of material fact exist as to whether Officer 

Elchert was responding to an emergency call and whether his conduct while 

operating his vehicle was willful and wanton at the time of the accident in order 

for immunity to apply pursuant to R.C. 2744.02 and R.C. 2744.03. We disagree. 

{¶14} An appellate court reviews a summary judgment order de novo. 

Hillyer v. State Farm Mut. Auto. Ins. Co. (1999), 131 Ohio App.3d 172, 175. 

Accordingly, a reviewing court will not reverse an otherwise correct judgment 

merely because the lower court utilized different or erroneous reasons as the basis 

for its determination. Diamond Wine & Spirits, Inc. v. Dayton Heidelberg Distr. 

Co., 148 Ohio App.3d 596, 604-605, 2002-Ohio-3932, citing State ex rel. Cassels 

v. Dayton City School Dist. Bd. of Ed., 69 Ohio St.3d 217, 222, 1994-Ohio-92. 

Summary judgment is appropriate when, looking at the evidence as a whole: (1) 

there is no genuine issue as to any material fact; (2) reasonable minds can come to 

but one conclusion and that conclusion is adverse to the party against whom the 

motion for summary judgment is made; and, therefore, (3) the moving party is 

entitled to judgment as a matter of law. Civ.R. 56(C); Horton v. Harwick 

Chemical Corp., 73 Ohio St.3d 679, 686-687, 1995-Ohio-286. If any doubts exist, 

the issue must be resolved in favor of the nonmoving party. Murphy v. 

Reynoldsburg, 65 Ohio St.3d 356, 358-59, 1992-Ohio-95. 
Case No. 13-09-28 

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{¶15} The party moving for summary judgment has the initial burden of 

producing some evidence which demonstrates the lack of a genuine issue of 

material fact. Dresher v. Burt, 75 Ohio St.3d 280, 293, 1996-Ohio-107. In doing 

so, the moving party is not required to produce any affirmative evidence, but must 

identify those portions of the record which affirmatively support her argument. Id. 

at 292. The nonmoving party must then rebut with specific facts showing the 

existence of a genuine triable issue; she may not rest on the mere allegations or 

denials of her pleadings. Id.; Civ.R. 56(E). 

{¶16} R.C. 2744 et seq. governs political subdivision tort liability and 

provides a three-tiered analysis for determining liability. Ward v. City of 

Napoleon, 3d Dist. No. 7-07-14, 2008-Ohio-4643, ¶11, citing Cramer v. Auglaize 

Acres, 113 Ohio St.3d 266, 2007-Ohio-1946, ¶14. The first tier, under R.C. 

2744.02(A)(1) sets forth the general rule providing immunity to political 

subdivisions for governmental and proprietary functions. 

(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 person or property allegedly 

caused by any act or omission of the political subdivision or an 

employee of the political subdivision in connection with a 

governmental or proprietary function. 
Case No. 13-09-28 

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{¶17} The second tier provides five exceptions to the general grant of 

immunity under R.C. 2744.02(A)(1), of which only R.C. 2744.02(B)(1) is 

applicable in this case. 

(B) Subject to sections 2744.03 and 2744.05 of the Revised Code, 

a political subdivision is liable in damages in a civil action for 

injury, death, or loss to person or property allegedly caused by 

an act or omission of the political subdivision or of any of its 

employees in connection with a governmental or proprietary 

function, as follows: 

(1) Except as otherwise provided in this division, 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. 

{¶18} Finally, the third tier of the analysis provides three defenses to the 

immunity exception under R.C. 2744.02(B)(1), of which one is at issue here. R.C. 

2744.02(B)(1)(a) grants an exception to political subdivisions for liability from 

injury, death, or loss of personal property caused by the negligent operation of a 

motor vehicle by an employee of the political subdivision when the employee was 

“[a] member of a municipal corporation police department or any other police 

agency [and] 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). See, also, Howe v. Henry County Commrs., 167 Ohio 

App.3d 865, 2006-Ohio-3893, ¶10. The burden of proof is on the political 

subdivision to establish general immunity, and, when established, the burden then 
Case No. 13-09-28 

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shifts to the plaintiff to demonstrate one of the exceptions to immunity apply. 

Maggio v. Warren, 11th Dist. No. 2006-T-0028, 2006-Ohio-6880, ¶38, citing 

Ramey v. Mudd, 154 Ohio App.3d 582, 2003-Ohio-5170, ¶16. 

{¶19} Furthermore, R.C. 2744.03 also provides immunity for government 

employees acting within the scope of their employment, with an exception for 

wanton conduct. 

(6) In addition to any immunity or defense referred to in division 

(A)(7) of this section and in circumstances not covered by that 

division or sections 3314.07 and 3746.24 of the Revised Code, the 

employee is immune from liability unless one of the following 

applies: 

(a) The employee’s acts or omissions were manifestly outside 

the scope of the employee’s employment or official 

responsibilities; 

(b) The employee’s acts or omissions were with malicious 

purpose, in bad faith, or in a wanton or reckless manner; 

R.C. 2744.03(A)(6)(a),(b). 

{¶20} Here, there was no dispute that Officer Elchert was acting within the 

scope of his employment and was engaged in a governmental or proprietary 

function at the time of his collision with Browning. However, the issue is whether 

Officer Elchert was responding to an emergency call at the time of the collision 

and whether his conduct in operating his police cruiser was willful and wanton. 

{¶21} R.C. 2744.01(A) defines an emergency call as “a call to duty, 

including, but not limited to, communications from citizens, police dispatches, and 
Case No. 13-09-28 

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personal observations by peace officers of inherently dangerous situations that 

demand an immediate response on the part of a peace officer.” The Supreme 

Court of Ohio has further defined emergency call as one involving a situation in 

which a response by an officer is required by the officer’s professional obligation, 

with no requirement that the situation be inherently dangerous. See Colbert v. 

Cleveland, 99 Ohio St.3d 215, 2003-Ohio-3319, ¶14. See, also, McGuire v. Lovell 

(1998), 128 Ohio App.3d 473, 478. 

{¶22} Moreover, willful misconduct ‘“involves an intent, purpose or 

design to injure.’” Gladon v. Greater Cleveland Regional Transit Auth., 75 Ohio 

St.3d 312, 319, 1996-Ohio-137, quoting McKinney v. Hartz and Restle Realtors, 

Inc. (1987), 31 Ohio St.3d 244, 246. Wanton misconduct is ‘“the failure to 

exercise any care whatsoever. * * * [M]ere negligence is not converted into 

wanton misconduct unless the evidence establishes a disposition to perversity on 

the part of the tortfeasor. Such perversity must be under such conditions that the 

actor must be conscious that his conduct will in all probability result in injury.”’ 

Grange Mut. Cas. Co. v. Bockelman, 3d Dist. No. 7-07-13, 2008-Ohio-1903, ¶17, 

quoting McGuire, 128 Ohio App.3d at 481. 

{¶23} Turning to the facts of the case, Officer Elchert stated that he was 

responding to a dispatch call in regards to a fight at a local trailer park; that he 

responded with lights and sirens; that, as he approached the red light at the 
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intersection, he slowed down and checked for traffic; and, that he observed 

vehicles yielding the right of way, so he proceeded through the intersection. 

{¶24} Although Officer Elchert also stated that he was not sure of his rate 

of speed at the time he entered the intersection, that he could not recall the exact 

procedure for responding to an emergency call, and that he was disciplined as a 

result of the accident, there was insufficient evidence to find that Officer Elchert’s 

conduct was willful and wanton. He clearly slowed down and checked the 

intersection for traffic and warned other motorists by using his overhead lights and 

sirens. Accordingly, we find this conduct does not rise to the level of an “intent, 

purpose or design to injure” or “the failure to exercise any care whatsoever,” and 

that immunity exists pursuant to R.C. 2744.02(B)(1)(a) and R.C. 2744.03(A)(6). 

{¶25} Additionally, Browning argues that Officer Elchert was not 

responding to an emergency call at the time of the accident because the dispatch 

records indicate that he was excused from responding to the call minutes before 

the accident. 

{¶26} Officer Elchert did state that dispatch excused him from responding 

to the emergency call at Nye’s approximately three minutes before dispatch called 

regarding his accident. However, he also stated that he was removed from the 

emergency call as a result of the accident, and only a three minute discrepancy 

between the two dispatch calls supports such a conclusion. Furthermore, 

Browning presented no evidence other than the time difference between the two 
Case No. 13-09-28 

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dispatch calls to support her conclusion that Officer Elchert was no longer 

responding to the emergency call at the time of the accident. 

{¶27} Consequently, we find that no genuine issues of material fact exist 

establishing facts other than that Officer Elchert was responding to an emergency 

call at the time of the accident and that he was not acting in a willful and wanton 

manner. We therefore conclude that both Officer Elchert and Fostoria have 

immunity from tort liability pursuant to R.C. 2744.02 and R.C. 2744.03. 

{¶28} Accordingly, we overrule Browning’s assignment of error. 

{¶29} Having found no error prejudicial to the appellant herein, in the 

particulars assigned and argued, we affirm the judgment of the trial court. 

Judgment Affirmed 

SHAW and PRESTON, J.J., concur. 

/jnc