[Cite as Gilbert v. Cleveland, 2013-Ohio-5252.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

No. 99708

BONNIE GILBERT, ADMIN., ETC., ET AL.

PLAINTIFFS-APPELLEES 

vs. 

CITY OF CLEVELAND, ET AL.

DEFENDANTS 

[Appeal By Defendant, John Cotner] 

JUDGMENT: 

AFFIRMED

Civil Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CV-774595 

BEFORE: E.T. Gallagher, J., Celebrezze, P.J., and E.A. Gallagher, J. 

RELEASED AND JOURNALIZED: November 27, 2013 
ATTORNEYS FOR APPELLANT

Ernest L. Wilkerson, Jr. 

Kathryn M. Miley 

Jamie L. Snow 

Wilkerson & Associates Co., L.P.A. 

1422 Euclid Avenue, Suite 248 

Cleveland, Ohio 44115 

ATTORNEYS FOR APPELLEES 

Stephen J. Charms 

Charms and Giusto, L.L.C. 

1892 Dunellon Drive 

Lyndhurst, Ohio 44124 

Michael J. O’Shea 

Lipson O’Shea Legal Group 

Beachcliff Market Square 

19300 Detroit Road, Suite 202 

Rocky River, Ohio 44116 

For The City of Cleveland

Barbara A. Langhenry 

Law Director 

City of Cleveland 

BY: Gary S. Singletary 

Assistant Law Director 

Cleveland City Hall, Room 106 

601 Lakeside Avenue 

Cleveland, Ohio 44114-1077
EILEEN T. GALLAGHER, J.: 

{¶1} Defendant-appellant John Cotner (“Cotner”) appeals the denial of his motion 

for summary judgment. We find no merit to the appeal and affirm. 

{¶2} Plaintiff-appellee, Bonnie Gilbert (“Bonnie”), on behalf of her minor 

children, herself, and the estate of George Gilbert (“Gilbert”), filed a complaint against 

Cotner and the city of Cleveland (“Cleveland” or “the city”) for damages arising from a 

fatal car accident. Gilbert’s car, which had been traveling southbound, stalled in the left 

lane of Interstate 71 shortly before the accident. Cotner was also traveling southbound 

behind an SUV in the left lane of Interstate 71, north of Gilbert. After his car stalled, 

Gilbert began pushing his car from the left lane, across traffic to the right berm of the 

highway. When the SUV approached Gilbert, it swerved to avoid hitting him, and 

Gilbert suddenly became visible to Cotner, who was still behind the SUV. Cotner also 

swerved but was unable to avoid the collision. Cotner’s vehicle struck Gilbert’s car, 

knocked him to the ground, and caused injuries to the lower half of his body. Months 

later, while in a skilled care nursing home, Gilbert expired. It is undisputed that Cotner 

was within the course and scope of his employment as a Cleveland police officer when 

his police cruiser collided with Gilbert’s car. 

{¶3} Several Cleveland police officers responded to the scene, including 

Patrolman Scott Ford (“Ford”) of the department’s accident investigations unit. Ford 
authored a crash report, and Cotner prepared a motor vehicle accident report. Cotner 

supplemented his report with a more detailed narrative the day after the accident. Cotner 

never mentioned in any of these reports that he was pacing the SUV to determine whether 

it was speeding. 

{¶4} The Cleveland police department conducted an investigation to determine 

who and/or what caused the accident. A five-member panel reviewed the crash reports 

and Cotner’s statement. All five members of the panel unanimously testified at their 

respective depositions that they were unaware Cotner claimed he was pacing the SUV 

before the accident. 

{¶5} In his motion for summary judgment, Cotner argued he was immune from 

liability under R.C. Chapter 2744 because he was within the course and scope of his 

employment as a Cleveland police officer at the time of the accident. He also argued 

there was no evidence that he acted willfully, wantonly, or recklessly that would strip his 

immunity. In response, Bonnie argued Cotner is not entitled to the immunity provided in 

R.C. 2744.02 because there is no evidence that he was on an “emergency call” as defined 

in R.C. 2744.01(A) at the time of the accident. The trial court agreed and denied 

Cotner’s motion for summary judgment. This appeal followed. 

Standard of Review

{¶6} We review an appeal from summary judgment de novo. Grafton v. Ohio 

Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). The party moving for 

summary judgment bears the burden of demonstrating the absence of a genuine issue of 
material fact as to the essential element of the case with evidence of the type listed in 

Civ.R. 56(C). Dresher v. Burt, 75 Ohio St.3d 280, 292, 662 N.E.2d 264 (1996). Once 

the moving party demonstrates entitlement to summary judgment, the burden shifts to the 

non-moving party to produce evidence related to any issue on which the party bears the 

burden of production at trial. Civ.R. 56(E). Summary judgment is appropriate when, 

after construing the evidence in a light most favorable to the party against whom the 

motion is made, reasonable minds can only reach a conclusion that is adverse to the 

non-moving party. Zivich v. Mentor Soccer Club, 82 Ohio St.3d 367, 369-370, 696 

N.E.2d 201 (1998). 

Governmental Immunity

{¶7} Cotner argues the trial court erred in denying his motion for summary 

judgment when there is no genuine issue of material fact disputing his entitlement to 

sovereign immunity. 

{¶8} R.C. Chapter 2744 sets forth a three-tiered analysis for determining whether 

governmental immunity applies to a political subdivision. Greene Cty. Agricultural Soc. 

v. Liming, 89 Ohio St.3d 551, 556-557, 733 N.E.2d 1141 (2000). The first tier is the 

general rule that a political subdivision is immune from liability incurred in performing 

either a governmental function or proprietary function. Id. at 556-557; R.C. 

2744.02(A)(1). Second, the court must determine if any of the five exceptions to 

immunity listed in R.C. 2744.02(B) apply to expose the political subdivision to liability. 

Cater v. Cleveland, 83 Ohio St.3d 24, 28, 697 N.E.2d 610 (1998). If any of the 
exceptions to immunity apply and no defense in that section protects the political 

subdivision from liability, then the third tier of the analysis requires the court to determine 

whether any of the defenses set forth in R.C. 2744.03 apply, thereby providing the 

political subdivision a defense against liability. Colbert v. Cleveland, 99 Ohio St.3d 215, 

2003-Ohio-3319, 790 N.E.2d 781, ¶ 9. 

{¶9} Cotner contends appellants erroneously assert that the motor vehicle 

exception provided in R.C. 2744.02(B)(1) strips Cotner of the cloak of sovereign 

immunity. Appellants maintain there is a genuine issue of material fact as to whether 

Cotner was on an “emergency call,” which would provide a defense to liability pursuant 

to R.C. 2744.02(B)(1)(a). R.C. 2744.02(B)(1), provides that “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.” (Emphasis added.) Cotner argues that because the 

motor vehicle exception expressly reinstates liability on “political subdivisions” but not 

“employees of political subdivisions,” the exception does not apply to him. We agree. 

{¶10} The immunity analysis is different for individual employees of political 

subdivisions. Instead of a three-tiered analysis, R.C. 2744.03(A)(6) states that an 

employee of a political subdivision is immune from liability unless the employee’s acts 

“were manifestly outside the scope of the employee’s employment or official 

responsibilities,” or “were with malicious purpose, in bad faith, or in a wanton or reckless 

manner.” Rankin v. Cuyahoga Cty. Dept. of Children & Family Servs., 118 Ohio St.3d 
392, 2008-Ohio-2567, 889 N.E.2d 521, ¶ 36, citing Cramer v. Auglaize Acres, 113 Ohio 

St.3d 266, 2007-Ohio-1946, 865 N.E.2d 9, ¶ 17. Therefore, the crucial issue in this case 

is whether there exists a genuine issue of material fact as to whether Cotner acted 

maliciously, wantonly, recklessly, or in bad faith at the time of the accident. 

{¶11} The Ohio Supreme Court has defined and distinguished the terms 

“wanton” and “reckless” conduct. Anderson v. Massillon, 134 Ohio St.3d 380, 

2012-Ohio-5711, 983 N.E.2d 266, ¶ 24, quoting Res. Trucking Co. v. Fairchild, 128 Ohio 

St. 519, 531-532, 191 N.E. 745 (1934). In Anderson, the Ohio Supreme Court defined 

“wanton misconduct” as conduct that 

manifests a disposition to perversity, and it must be under such surrounding 

circumstances and existing conditions that the party doing the act or failing 

to act must be conscious, from his knowledge of such surrounding 

circumstances and existing conditions, that his conduct will in all common 

probability result in injury. 

Id., quoting Universal Concrete Pipe Co. v. Bassett, 130 Ohio St. 567, 200 N.E. 843 

(1936). 

{¶12} The Anderson court defined “reckless misconduct” as follows: 

Reckless conduct is characterized by the conscious disregard of or 

indifference to a known or obvious risk of harm to another that is 

unreasonable under the circumstances and is substantially greater than 

negligent conduct. Thompson [v. McNeill], 53 Ohio St.3d 102 559 N.E.2d 

705, at 104-105; adopting 2 Restatement of the Law 2d, Torts, at 587 

(1965); see also Black’s Law Dictionary 1298-1299 (8th Ed.2004) 

(explaining that reckless conduct is characterized by a substantial and 

unjustifiable risk of harm to others and a conscious disregard of or 

indifference to the risk, but the actor does not desire harm). 
{¶13} This court has defined “malice” and “bad faith” for purposes of R.C. 

2744.03(A)(6) in Pierce v. Woyma, 8th Dist. Cuyahoga No. 97545, 2012-Ohio-3947, ¶ 

15. In Pierce, we defined malice as “the willful and intentional desire to harm another, 

usually seriously, through conduct which is unlawful or unjustified.” Id., quoting Hicks 

v. Leffler, 119 Ohio App.3d 424, 428-429, 695 N.E.2d 777 (1997). We defined “bad 

faith” as more than bad judgment or negligence. Id., quoting Hicks. Bad faith imports a 

“dishonest purpose, moral obliquity, conscious wrongdoing, breach of a known duty 

through some ulterior motive or ill will partaking of the nature of fraud. It also embraces 

actual intent to mislead or deceive another.” (Citations omitted.) Cotner argues there is 

no evidence that he acted maliciously, wantonly, recklessly, or in bad faith at the time of 

the accident. He testified at deposition that he was traveling within the speed limit prior 

to observing the SUV. He also stated that he maintained an assured clear distance 

behind the SUV but that Gilbert’s stalled vehicle appeared suddenly from behind the SUV 

and that it was impossible to avoid the collision. 

{¶14} In support of his argument, Cotner also relies on O’Toole v. Denihan, 118 

Ohio St.3d 374, 2008-Ohio-2574, 889 N.E.2d 505, ¶ 73, wherein the Ohio Supreme Court 

held that “violation of directives or policies does not rise to the level of reckless conduct 

unless a plaintiff can establish that the violator acted with a perverse disregard of the 

risk.” In other words, Cotner contends that even if he failed to maintain an assured clear 

distance, was speeding, or was otherwise in violation of a department policy, these 

violations alone are not enough to establish bad faith, malicious, wanton, or reckless 
misconduct. He argues he is entitled to summary judgment because there is no evidence 

that he “acted with a perverse disregard of the risk.” Id. 

{¶15} However, whether an actor’s conduct was malicious, wanton, reckless, or in 

bad faith is generally a fact question for the jury to decide. Fabrey v. McDonald Village 

Police Dept., 70 Ohio St.3d 351, 356, 639 N.E.2d 31 (1994); Taylor v. Cleveland, 8th 

Dist. Cuyahoga No. 97597, 2012-Ohio-3369, ¶ 22. In Hunter v. Columbus, 139 Ohio 

App.3d 962, 970, 746 N.E.2d 246 (10th Dist.2000) the court explained: 

Because the line between willful or reckless misconduct, wanton 

misconduct, and ordinary negligence can be a fine one, “the issue of 

whether conduct was willful or wanton should be submitted to the jury for 

consideration in light of the surrounding circumstances when reasonable 

minds might differ as to the import of the evidence.” 

Id., quoting Brockman v. Bell, 78 Ohio App.3d 508, 516, 605 N.E.2d 445 (1st Dist.1992). 

{¶16} Here, appellees allege Cotner was speeding and failed to maintain an 

assured clear distance in violation of R.C. 4511.21. They also allege Cotner violated 

R.C. 4511.041, which allows a police officer to speed when responding to an emergency, 

only if the officer uses emergency equipment such as lights and sirens. Appellees 

submitted an authenticated expert report from an accident reconstructionist, Fredrick 

Lickert (“Lickert”), who concluded that Cotner was both speeding and failed to maintain 

an assured clear distance. Lickert explained: 

Officer Cotner testified that he moved left in behind the SUV to pace the 

SUV, and he was maybe 3 car lengths behind the SUV. A Crown Victoria 

cruise[r] is almost 18' long, so 3 lengths would be approximately 54'. One 

of the first things a driver usually does when he or she spots a cruise[r] is to 

hit the breaks [sic], sometimes even when they are not speeding. Traveling 

between 60 and 73 miles per hour and reacting to break [sic] lights in front 
of his cruiser and using an average perception and reaction time of 1.5 

seconds, Officer Cotner’s cruise [sic] would travel between 131’ to 160’ 

before his cruiser breaks [sic] would begin to decelerate the car. Had the 

SUV break [sic] checked Officer Cotner, or slowed rapidly, his cruiser 

would have slammed the SUV in the rear end. By his own admissions, 

Officer Cotner stated he could not see in front of the SUV. So now he is 

tailgaiting and driving blindly behind the SUV. It is the opinion of this 

Examiner that for Officer Cotner to properly pace this alleged speeding 

SUV, Officer Cotner’s cruiser should have been at a minimum 1.5 seconds, 

preferably 2 seconds behind the SUV. * * * It is the Examiner’s opinion 

that if Mr. Cotner had been pacing this SUV, and he was pacing the vehicle 

blindly while traveling only 3 car lengths or approximately 54 feet behind 

the SUV, his conduct and operation of the cruiser was reckless. 

{¶17} Viewing Lickert’s report in a light most favorable to appellees, the 

non-moving parties, we find questions of fact remain as to whether Cotner was acting 

maliciously, wantonly, recklessly or in bad faith at the time of the accident. 

{¶18} Accordingly, we overrule the sole assignment of error. 

{¶19} Judgment affirmed. 

It is ordered that appellees recover from appellant costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate be sent to 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. 

EILEEN T. GALLAGHER, JUDGE 

FRANK D. CELEBREZZE, JR., P.J., and 

EILEEN A. GALLAGHER, J., CONCUR