[Cite as Pendry v. Troy Police Dept. , 2020-Ohio-3129.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY LAURA PENDRY, EXECUTOR Plaintiff-Appellant

v. CITY OF TROY POLICE DEPARTMENT, et al. Defendants-Appellees : : : : : : : : : : Appellate Case No. 28531

Trial Court Case No. 2018-CV-1676 (Civil Appeal from Common Pleas Court)

. . . . . . . . . . . O P I N I O N Rendered on the 29th day of May, 2020.

. . . . . . . . . . . GERALD S. LEESEBERG, Atty. Reg. No. 0000928, JOHN A. MARKUS, At ty. Reg. No. 0093736, and CRAIG TUTTLE, Atty. Reg. No. 0086521, 175 South Th ird Street, Penthouse One, Columbus, Ohio 43215 Attorneys for Plaintiff-Appellant DANIEL T. DOWNEY, Atty. Reg. No. 0063753 and PAUL M. BERNHART, Atty. Reg. No. 0079543, 7775 Walton Parkway, Suite 200, New Albany, Ohio 43054 Attorneys for Appellees, Miami County Sheriff’s Office, Chase U nderwood and Todd Tennant NICHOLAS E. SUBASHI, Atty. Reg. N o. 0033953 and TABITHA JUSTICE , Atty. Reg. No. 0075440, 50 Chestnut Street, Suite 230, Dayton, Ohio 45440 Attorneys for City of Troy Police Department, Joseph Gates, Jos eph Long, Matthew Mosier, and Zachariah Bettelon

. . . . . . . . . . . . . HALL, J.-2- {¶ 1} Laura Pendry, as administrator of the estate of Anthony Robert Hufford, appeals from the trial court’s entry of summary judgment in fav or of the appellees on her personal injury and wrongful death complaint against several la w-enforcement officers and two political subdivisions following a fatal high-speed pol ice pursuit. {¶ 2} In her sole assignment of error, Pendry challenges the trial co urt’s summary judgment ruling. She contends genuine issues of material fact e xist as to whether three police officers involved in the high-speed chase acted wantonly or recklessly, thereby negating statutory immunity. {¶ 3} The record reflects that Troy police officer Zachariah Bettelon was driving his patrol car around 3:30 p.m. on March 27, 2017 when he heard a d ispatch about a stolen pick-up truck. The dispatch reported that the vehicle was trave ling south on Interstate 75 from Piqua. Bettelon also learned that the suspect had been see n crying and walking in the middle of State Route 36 before stealing the vehicle. In ad dition, Bettelon heard that the suspect had been reported doing “donuts” in a field and dri ving erratically at a high speed, going on and off of the road. Shortly thereafter, Bettel on saw the stolen truck heading south on Interstate 75. The suspect was not driving dan gerously or speeding at that time. Bettelon got behind the truck and attempted to stop it with his cruiser’s lights and siren activated. The suspect responded by fleeing at speeds up to approximately 100 miles per hour. {¶ 4} About one minute later, a second Troy police officer, Joseph Ga tes, joined the pursuit behind Bettelon. As the suspect continued to flee, Miami County sheriff’s deputy Chase Underwood unsuccessfully attempted to lay stop sti cks ahead of the truck. Underwood then joined the pursuit on the interstate. Underwood initially was the fifth-3- cruiser in line because two Tipp City police cruisers already h ad joined the pursuit. 1 Underwood passed one of the Tipp City cruisers, becoming forth in line as the pursuit entered Montgomery County from Miami County at speeds up to 100 miles per hour. {¶ 5} The stolen truck exited Interstate 75 onto Northwoods Boulevard near the airport and headed west driving erratically and speeding. The s uspect slowed at Northwoods and North Dixie Drive but did not stop at the traffi c light and turned left, heading south on Dixie Drive into Vandalia. The pursuit continu ed on Dixie Drive with the suspect frequently driving between 70 and 90-plus miles per hou r, running red lights, swerving around cars, and at times traveling on the wrong side of the road. Just south of the Route 40 intersection, Bettelon reported over his radio tha t the stolen truck had hit another vehicle (it had taken off another car’s side mirror). A t that time, the Troy police officer in charge, Matthew Mosier, was monitoring the pursuit o ver the radio. He became

concerned a bout the area getting more conge sted and consulted T roy police captain Joseph Long about calling it off. At that time, the pursuit was near the intersection of North Dixie Drive and Little York Road. When Mosier told Long the loc ation, Long ordered the pursuit terminated. Mosier promptly ordered the Troy units (Bet telon and Gates) to stop the pursuit, and they immediately complied. Bettelon and Gates turned off their lights and

sirens and exited Dixie Drive onto Sudachi Drive. {¶ 6} When the Troy officers terminated the pursuit, a Tipp City poli ce cruiser was

first in line behind the stolen truck. Officer Underwood from M iami County was second in line. (He presumably was followed by the second Tipp City unit, which he had passed earlier.) Miami County sheriff’s department lieutenant Todd Ten nant also was following

1 No Tipp City officers are a party to the present lawsuit.-4- the pursuit from a distance and monitoring it on the radio, but he did not actively join the chase. Tennant ordered Underwood to terminate the pursuit short ly after the Troy units did so. His reason for terminating was his belief that units fr om the Ohio State Highway

Patrol had taken over. Underwood failed to hear Tennant’s order to terminate due to radio static. Moments later, the stolen truck hit a vehicle driven by Anthony Hufford, who was pulling out of an apartment complex near the intersection of Di xie Drive and Stop Eight road. At the time of the collision, the stolen truck was travel ling approximately 90 miles per hour. Hufford was pronounced dead at the scene. The fatal a ccident occurred approximately one mile and more than one minute after Troy poli ce officers Bettelon and Gates terminated their pursuit. At the time of the collision, U nderwood remained the second cruiser in line behind Tipp City. The record does not re flect precisely how far back

Underwood was from the stolen truck at the time of the accident . He testified during his deposition that he was able to see the truck “at times” while o n Dixie Drive. In a “Traffic Crash Witness Statement” made after the incident, Underwood des cribed the end of the pursuit as follows: I heard Troy PD terminate their involvement in the pursuit. As they peeled off to the left side, Tipp City P.D. unit who was third in the pursuit

became the lead cruiser and I followed 2nd. An O.S.P. cruiser turned southbound onto Dixie just in front of us. I thought it was goi ng to take the lead but due to the speed of the pursuit, I stayed 2nd and Tipp City P.D. stayed lead. At Dixie Rd near Stop Eight Rd. I observed heavy d ust and smoke. After crossing Stop Eight Rd, I observed the suspect veh icle stopped with heavy damage. * * *-5- {¶ 7} The record also contains a “Traffic Crash Witness Statement” fr om a motorist, Michael Phillips, who saw the wreck. In response to a question about whether he saw police cars chasing the stolen truck, Phillips responded : “No, sir. It seemed like a minute or so before they got here, but they all got here all at once.” {¶ 8} The trial court entered summary judgment in favor of all defend ants, namely the City of Troy, Troy police officers Bettelon and Gates, Troy officer-in-charge Mosier, Troy police captain Long, the Miami County Board of Commissione rs (hereinafter “Miami County”), Miami County sheriff’s lieutenant Tennant, and Miami County sheriff’s deputy Underwood. In its decision, the trial court found Mosier and Lo ng entitled to summary judgment “[g]iven the limited nature and extent of their involv ement in the pursuit[.]” (Order Granting Summary Judgment at 3.) The trial court also found Ten nant, Mosier, and Long entitled to summary judgment given that they only had “particip ated in the events at a distance” and at reasonable speeds. ( Id . at 6.) With regard to officers Bettelon, Gates, and Underwood, the trial court reasoned: * * * All were in constant communication with their superiors regarding the pursuit, all used active lights and sirens, all s lowed at intersections, all stayed back of the apparently distraught, im paired and fleeing truck thief who, it must be noted, had begun driving er ratically and at high rates of speed BEFORE law enforcement was ever dispatch ed to engage him and NOT AS THE RESULT OF THE PURSUIT ITSELF! Indeed, what of R.C. Section 2935.03 that imposed on the severa l Defendants the statutory duty to “arrest and detain, until a wa rrant can be obtained, a person found violating . . . a law of this state . . . .” [Footnote-6- omitted.] Had these several Defendants failed to discharge thei r duty to apprehend and detain a distraught, impaired and erratically dri ving truck thief, presumably they would have been sued for dereliction of duty. So it

goes. ( Id .) {¶ 9} The trial court then concluded as follows: Understandably, Plaintiff relies heavily on her expert’s opini on that the Troy PD and MCS officers and deputies violated their respec tive departments’ pursuit policies. But Argabrite [ v. Neer , 149 Ohio St.3d 349, 2016-Ohio-8374, 75 N.E.3d 161] makes it crystal clear that a vi olation of departmental policy does not equate to per se recklessness or w antonness. [Footnote omitted.] Instead, the Argabrite Court requires that, absent evidence that the officers and deputies (1) knew they were violating departmental policy and (2) that their violations would in all probability result in in jury, summary judgment is mandated. And how, exactly, could it be said that Troy PD and MCS law enforcement personnel involved here “knew” they were in violati on of departmental policy when they were in constant contact with the ir supervisors regarding the circumstances of the pursuit and that they “knew” their pursuit would in all probability cause injury when the al ready distraught, impaired and fleeing truck thief had imperiled the public well before law enforcement had been dispatched to make a welfare check and any effort-7- had been made to interdict the fleeing felon? For the foregoing reasons, the Court GRANTS summary judgment for both the City of Troy Defendants and the Miami County Defen dants. ( Id . at 6-7.) {¶ 10} “In a case decided on summary judgment, we must determine wheth er an issue of material fact remains to be litigated, whether the mov ing party is entitled to judgment as a matter of law, and whether when viewing the evide nce most strongly in favor of the nonmoving party, reasonable minds can only reach a conclusion that is adverse to the nonmoving party.” Snyder v. Ohio Dept. of Natural Resources , 140 Ohio St.3d 322, 2014-Ohio-3942, 18 N.E.3d 416, ¶ 20, citing Civ.R. 5 6(C) and Temple v. Wean United, Inc. , 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977). {¶ 11} The evidence here includes deposition testimony of the law-enfo rcement officials involved, deposition testimony from the plaintiff’s p olice-practices expert witness, incident reports, witness statements, a police cruiser-cam vide o, an accident reconstruction report, affidavits, police policy manuals, and o ther materials. Having examined that evidence, we see no genuine issue of material fac t about what occurred on the afternoon of March 27, 2017 when police officers pursued a stolen pick-up truck. The real issue on appeal is whether reasonable minds construing that evidence in the Appellant’s favor could find that any of the officers involved acted in a way that overcomes statutory immunity. {¶ 12} As relevant here, “an employee of a political subdivision is im mune from liability unless the employee’s acts or omissions were ‘with malicious purpose, in bad faith, or in a wanton or reckless manner .’ (Emphasis added.) R.C. 2744.03(A)(6)(b). This-8- standard applies to law-enforcement officers just as it applies to other employees of political subdivisions.” Argabrite at ¶ 7, citing Fabrey v. McDonal d Village Police Dept ., 70 Ohio St.3d 351, 356, 639 N.E.2d 31 (1994). Revised Code Chap ter 2744 also provides immunity for political subdivisions themselves. In particular, R.C. 2744.02(B)(1)(a) cloaks a political subdivision with immunity from liability where “[a] member of a municipal corporation police department or any other police agency was op erating a motor vehicle while responding to an emergency call and the operation of the vehicle did not constitute

willful or wanton misconduct .” (Emphasis added.) {¶ 13} The issue of statutory immunity for a political subdivision or its employees presents a question of law. Burgin v. Eaton , 2d Dist. Montgomery No. 24757, 2011-Ohio5951, ¶ 26, citing Conley v. Shearer , 64 Ohio St.3d 284, 595 N.E.2d 862 (1992); see also Hoffman v. Gallia Cty. Sheriff’s Office , 2017-Ohio-9192, 103 N.E.3d 1, ¶ 38 (4th Dist.). “Whether a political subdivision employee acted with malicious purpose, in bad faith, or in a wanton or reckless manner generally are questions of fact, however. * * * Thus, a trial court may not grant summary judgment on the basis of R.C. 2744. 02(B)(1)(a) or 2744.03(A)(6)(b) immunity unless reasonable minds can only conc lude that the employee did not act willfully, wantonly, maliciously, reckless[ly], or in bad faith.” Hoffman at ¶ 38, citing Argabrite at ¶ 15. In resolving this issue, a reviewing court must “bear in mind that while many public employees face the potential for liability un der R.C. 2744.03, no other public employee faces the potential danger, violence or unique statutory responsibilities a law-enforcement officer faces. Not only does Ohio law require an officer to arrest and detain a person who is violating the law, R.C. 2935.03(A)(1), i t also subjects that officer to potential criminal liability for negligently failing to do s o, R.C. 2921.44(A)(2).” Argabrite-9- at ¶ 15. As the Ohio Supreme Court explained in Argabrite : An officer’s role in our society creates a unique lens through which to view his or her actions and through which to determine wheth er those actions may have been malicious, in bad faith, wanton or reckle ss. We expect law-enforcement officers to protect the public, but that expectation need not mean that an officer must sit idly by while a suspect flees the scene of a crime, particularly when the suspect’s flight itself endan gers the general public further. The danger of a high-speed chase alone is not e nough to present a genuine issue of material fact concerning whether an officer has acted with a malicious purpose, in bad faith or in a wanton or reckless

manner. Shalkhauser v. Medina , 148 Ohio App.3d 41, 50-51, 772 N.E.2d 129 (9th Dist.2002).

Id. at ¶ 16. {¶ 14} With the foregoing standards in mind, we see no error in the tr ial court’s entry of summary judgment in favor of the City of Troy, Miami C ounty, Troy officer-incharge Matthew Mosier, Troy police captain Joseph Long, and Mia mi County sheriff’s lieutenant Todd Tennant. As a threshold matter, it does not app ear that the Appellant has challenged the trial court’s entry of summary judgment in favor of these defendants. The “Argument” section of the Appellant’s opening appellate brief d oes not mention any of these defendants. The Appellant argues that “[a]s municipal emp loyees, the individual defendants are only entitled to immunity when they act in a man ner which is neither reckless nor wanton.” (Appellant’s brief at 13.) She then asser ts that “reasonable minds could easily conclude that the individual defendants’ actions w ere more than negligent-10- and were in fact reckless or wanton.” ( Id .) In the remainder of her argument, the Appellant examines only the actions of Troy police officers Zachariah Bet telon and Joseph Gates and Miami County sheriff’s deputy Chase Underwood. She contends a jury reasonably might find that these officers’ actions were reckless or wanton . ( Id . at 13-24.) {¶ 15} Given the Appellant’s complete failure to address the actions o f Troy officerin-charge Mosier, Troy police c aptain L ong, and Miami County sh eriff’s lieutenant Tennant, she has failed demonstrate error in the trial court’s summary judgment with respect to these defendants, who played supervisory roles and m onitored the chase from some distance. As for the political-subdivision defendants, the Appellant’s argument fails to mention them either. We note too that a finding of recklessn ess by any of the defendant officers would not overcome statutory immunity for the City of Troy and Miami County. As set forth above, political-subdivision immunity exists unless o ne of the defendant officers involved in the pursuit engaged in “willful or wanton misconduc t” in the operation of a police cruiser. The terms “willful” and “wanton” delineate “distinct degrees o f care and are not interchangeable.” Anderson v. City of Massillon , 134 Ohio St.3d 380, 2012-Ohio-5711, 983 N.E.2d 266, ¶ 31. Willful misconduct “ implies an intentional deviation from a clear duty or from a definite rule of conduct,” a “deliberate purpose not to discharge some duty necessary to saf ety,” or a purpose to engage in “wrongful acts with knowledge or appreciat ion of the likelihood of resulting injury.” Id . at paragraph two of the syllabus. Wanton misconduct, on the other hand, “is the failure to exercise any care [for] those to whom a duty of care is owed in circumstances in which there is great-11- probability that harm will result.” Id . at paragraph three of the syllabus. Ibrahim v. City of Dayton , 2018-Ohio-1318, 110 N.E.3d 730, ¶ 16 (2d Dist.). {¶ 16} We see no evidence from which a trier of fact reasonably could find that any of the three defendant officers involved in the high-speed chas e (namely Troy police officers Bettelon and Gates, and Miami County sheriff’s deputy Underwood) engaged in willful misconduct within the meaning of the immunity statute. Nor do we see a genuine issue of material fact as to whether any of them engaged in wan ton misconduct. Uncontroverted summary judgment evidence demonstrates that all three officers

exercised some care when they pursued the stolen pick-up truck. Among other t hings, they used lights and sirens, slowed at intersections, maintaine d radio contact with supervisors, attempted to deploy stop sticks to end the pursuit , backed off of the suspect at times to see if he would slow down, and two of them (the Tro y officers) ultimately terminated the pursuit a mile or so before the crash. Therefore , the officers used some care, and the trial court properly granted summary judgment to the City of Troy and Miami County. {¶ 17} The remaining issue, which is the focus of the Appellant’s brie f, is whether Troy police officers Bettelon and Gates and Miami County sherif f’s deputy Underwood acted “recklessly” for purposes of overcoming their own immunit y. “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.’ ” Argabrite at ¶ 8, quoting Anderson , paragraph four of the syllabus. “[Recklessness] requires a finding that the proba bility of harm occurring is great and that the harm will be substantial. A possibility or e ven probability is not enough-12- as that requirement would place the act in the realm of neglige nce.” Preston v. Murty , 32 Ohio St.3d 334, 336, 512 N.E.2d 1174 (1987). “Recklessness, the refore, necessarily requires something more than mere negligence. In fact, ‘the act or must be conscious that his conduct will in all probability result in injury.’ ” O’Toole v. Denihan , 118 Ohio St.3d 374, 2008-Ohio-2574, 889 N.E.2d 505, ¶ 74, quoting Fabrey , 70 Ohio St.3d at 356, 639 N.E.2d

31. {¶ 18} The Appellant contends the record reveals genuine issues of mat erial fact as to whether Bettelon, Gates, and Underwood acted at least rec klessly in the course of the pursuit. With regard to Bettelon, the Appellant first conte nds the trial court overlooked the fact that he subjectively determined the suspect was impair ed and distraught based on a dispatcher’s report that: (1) the suspect had been seen wa lking in the middle of the road; (2) he looked like he had been crying; (3) he reportedly had stolen a truck and driven at a high rate of speed; and (4) he had been seen doing “donuts ” in a field and repeatedly going off of the roadway. The Appellant questions whether this information was sufficient to support an objectively reasonable belief that the suspect wa s impaired or whether Bettelon truly had such a belief. (Appellant’s brief at 15-17.) {¶ 19} The Appellant next contends the trial court failed to consider how the suspect was driving on Interstate 75 before Bettelon initiated a stop. Given that the suspects driving performance was lawful at the time, although i n a stolen vehicle, the Appellant contends a trier of fact reasonably might conclude th at initiating a felony stop at all was wanton or reckless. ( Id . at 17.) The Appellant contends the trial court also failed to consider whether deputy Underwood ever should have joined in the pursuit. The Appellant argues that Miami County’s pursuit policy prohibited him from joining because-13- he was not requested or permitted to do so by a supervisor and because at least two other units already were participating in the pursuit. ( Id . at 18.) {¶ 20} The Appellant characterizes the pursuit as being initiated for a property crime, i.e., theft of a pick-up truck. She contends Troy’s poli cy prohibits a pursuit for a property crime unless the suspect presents a risk of physical h arm or death and there exists an immediate need for apprehension. Again, the Appellant argues that these circumstances did not exist when Bettelon attempted to stop the suspect on Interstate 75. She contends Bettelon acted at least recklessly when he continu ed the pursuit on Interstate 75 despite the fact that the suspect sped away at up to 100 miles per hour, weaving in and out of traffic and at times driving on the shoul der. The Appellant argues that Gates and Underwood recklessly made the pursuit more dange rous by joining it on the interstate. ( Id . at 18-19.) In addition to terminating the pursuit on the inte rstate, the Appellant suggests that all of the officers could and should ha ve terminated at other times, including “when the officers exited their jurisdiction, once th e suspect exited the highway and entered a more congested area, once the suspect started dri ving on the wrong side of the roadway, when the suspect passed a school bus in a schoo l zone, and when the suspect sideswiped another vehicle on N. Dixie Drive.” ( Id . at 19.) {¶ 21} The Appellant next cites the following list of factors courts have examined to determine whether a police officer engaged in willful, wanto n, or reckless misconduct in operating a police cruiser: (1) the officer’s speed; (2) whether the officer was traveling in the correct lane of travel; (3) whether the officer had the right-of-way; ( 4) the time of day; (5) the weather; (6) the officer’s familiarity with the ro ad; (7) the road-14- contour and terrain; (8) whether traffic was light or heavy; (9 ) whether the officer made invasive maneuvers (i.e., attempting to force the vehicle from the road) or evasive maneuvers (i.e., attempting to avoid a col lision); (10) the nature and seriousness of the offense that prompted the eme rgency; (11) whether the officer possessed a safer alternative; (12) wh ether the officer admitted to disregarding the consequences of his action s; (13) whether the officer activated the vehicle’s lights and sirens; and (14) whether the officer violated any applicable departmental policy

. Hoffman, 2017-Ohio-9192, 103 N.E.3d 1, at ¶ 49. {¶ 22} Applying the above factors in the present case, the Appellant r easons: * Five police units were traveling at speeds at or near 100 mil es per hour;

* Officers drove on the shoulder of Interstate 75 in order to k eep up with the fleeing suspect and observed the suspect driving into oncoming traffic on multiple occasions; * Both the suspect and the Troy officers ran multiple red light s and stop signs and showed little, if any, regard for traffic on the road way and failed to slow to reasonable speeds at intersections; * The officers were 10-15 miles outside of their jurisdiction a nd less familiar with the area; * Other vehicles, drivers, and pedestrians, including the occup ants of a school bus travelling in a school zone, were all placed at extr eme risk of injury because of the pursuit through both residential and comm ercial neighborhoods;-15- *The pursuit happened during rush hour with moderate to heavy t raffic; * The officers had to make multiple invasive and evasive maneuv ers during the approximately 15-mile pursuit, including weaving in and out of traffic and trying to force the truck to the right lane on Interstate 75; * The pursuit was initiated for a crime against property; * There were safer alternatives, as there was not an immediate need for apprehension; and * The officers violated multiple departmental policies and Ohio law. (Appellant’s brief at 20.) {¶ 23} In light of the foregoing factors, the Appellant argues: All of this conduct, under the circumstances, created a high l ikelihood of harm or death that would and should be apparent to any reaso nable officer. Officer Bettelon knew this, the other officers that jo ined the pursuit knew this, yet every officer involved chose to continue pursuin g the suspect in direct violation of departmental policy, until that risk of harm or death turned into a reality when the suspect struck and killed Anthon y Hufford. When police officers engage in high-speed pursuits under these circumstances, it is absolutely foreseeable that the pursuit is likely to result in physical harm or death. That is precisely the reason high-sp eed pursuit policies have been enacted—to prohibit initiation of any pursui t where the need for immediate apprehension does not outweigh the inherent dangers of such pursuits, and mandate termination of such pursuits. (Appellant’s brief at 20-21.)-16- {¶ 24} The Appellant next asserts that the Argabrite case cited by the trial court is distinguishable. Although that case involved a high-speed polic e pursuit, the Appellant argues that the underlying offense was burglary and that the su spect driver had struck a police car and fled through residential yards prior to the purs uit. The Appellant also argues that the pursuit in Argabrite involved “moderate” speeds. (Appellant’s brief at 21-22.) Although the Ohio Supreme Court found no recklessness as a matt er of law in Argabrite , the Appellant contends the present case involves different fact s. {¶ 25} Finally, the Appellant reiterates her belief that Bettelon, Gat es, and Underwood did not establish their entitlement to summary judgme nt. She argues that they failed to establish the absence of a genuine issue of material act as to whether they acted recklessly. She argues their denial of violating departmental p olice-pursuit policy is not dispositive. She reasons that the trial court’s decision “permi ts a police officer to act recklessly and plead ignorance after doing so without consequen ce.” ( Id . at 23.) Finally, based on the evidence before us, the Appellant insists that the issue of recklessness must be submitted to a jury for resolution. Therefore, she urges rev ersal of the trial court’s decision as it relates to Bettelon, Gates, and Underwood. {¶ 26} Having reviewed the record, we see no error in the trial court’ s entry of summary judgment in favor of Troy police officers Bettelon and Gates and Miami County deputy Underwood. Viewing the evidence and all reasonable infer ences in a light most favorable to the Appellant, we do not believe a trier of fact c ould find that any of these officer acted recklessly. In reaching this conclusion, we bear in mind the Ohio Supreme Court’s observation of an officer’s “unique lens” on their acti ons and the potential danger, violence or unique statutory re sponsibilities faced by officers

. Argabrite at ¶ 16. Notably,-17- the Argabrite court recognized that an officer is not obligated to “sit idly by while a suspect flees the scene of a crime, particularly when the suspect’s fli ght itself endangers the general public further.” Id . The majority also concluded that “the danger of a high-speed chase alone is not enough to present a genuine issue of materia l fact concerning whether

an officer has acted * * * in a * * * reckless manner.” Id

. {¶ 27} Contrary to the Appellant’s argument, reasonable minds could no t conclude that Bettelon initiated a stop on the highway solely because th e suspect stole a truck. The Appellant concedes that a dispatcher also had advised Bettelon about the suspect reportedly walking in the middle of the road and crying before the theft and then driving erratically and at a high rate of speed before the officer obse rved him. ( See Bettelon depo. at 48.) These additional facts reasonably caused Bettelon to be lieve the suspect might be impaired and pose an immediate threat to the public. This re mained true even though the suspect was not driving erratically at the moment when Bett elon initiated a stop. Moreover, we consider it the officers’ sworn duty to at least a ttempt a traffic stop of a

stolen vehicle. {¶ 28} Nor are we persuaded by the Appellant’s argument that the trial court ignored Underwood’s violation of departmental policy by joining the pursuit. The Appellant argues that the policy precluded Underwood from joining a pursu it if two other units already were involved. The Appellant claims Underwood violated the policy because four other units were in pursuit when he joined the chase. Although Underwood disputes the Appellant’s reading of the policy, we see no genuine issue of m aterial fact on the issue of recklessness even if he did violate departmental policy. In Argabrite , the Ohio Supreme Court concluded that a violation of departmental policy does no t create a genuine issue-18- of material fact as to whether the violator acted recklessly ab sent evidence that the violator knew he was violating the policy and knew his violatio n” in all probability” would result in injury. Argabrite at ¶ 25. Here the record contains no evidence to support a fin ding that Underwood knew joining the pursuit violated departmental p olicy. This is particularly true given that he remained in contact with a supervisor who di d not order him to terminate the pursuit based on the policy. The record also contains no ev idence to support a finding that Underwood knew having five cruisers involved rather than f our in all probability would result in injury. {¶ 29} The Appellant further argues that Bettelon violated departmenta l policy by initiating a pursuit for a property crime where the suspect did not present a risk of physical harm or death and there was no need for immediate apprehension. As set forth above, however, the undisputed facts supported a reasonable belief tha t the seemingly unstable and distressed suspect was impaired and posed a risk of physica l harm to others. Once again, however, we see no genuine issue of material fact on the issue of recklessness even if Bettelon did violate the policy. On the record before u s, no trier of fact could conclude that Bettelon knew initiating his pursuit of the suspe ct on Interstate 75 in all probability would result in injury. Nor do we see a genuine iss ue of material fact as to whether any of the three officers acted recklessly by continuin g the pursuit on Interstate 75 and Northwoods Boulevard, which was in a largely commercial/ industrial area with light traffic. Having reviewed Bettelon’s cruiser-camera video, we note that roads were dry, and the weather was clear. Based on our examination of the video, we do not believe a trier of fact reasonably could find that Bettelon, Gates, or Underwood acted recklessly during this portion of the pursuit. We see no evidence to suppo rt a finding that they knew-19- their actions in all probability would result in injury when pu rsuing the suspect on Interstate 75 and Northwoods Boulevard. Therefore, they did not act reckle ssly as a matter of law. {¶ 30} In our view, the only real issue is whether any of the three of ficers acted recklessly by continuing the pursuit after exiting Northwoods B oulevard and turning southbound onto Dixie Drive where the pursuit continued for 4 o r more miles. On this portion of the relatively wide and straight 4- and sometimes 5- lane road, the officers continued their use of lights and sirens in part to warn other motorists and pedestrians about the suspect’s flight. Bettelon, the driver of the lead cr uiser for most of the pursuit, testified in his deposition that he was familiar with the entir e route the suspect travelled. The officers slowed at intersections, periodically backed off f rom the suspect to see if he would slow down, and maintained radio contact with their superv isors. We note too that Troy officers Bettleon and Gates did terminate the pursuit when it was felt that the risks outweighed the law-enforcement benefit. Even if the timing of t his decision might be questioned with the benefit of hindsight, the officers’ termina tion the pursuit when they did, in consultation with their supervisors, constituted at mos t negligence under the circumstances before us. In reaching this conclusion, we note t hat Bettelon and Gates discontinued their pursuit well before the crash. The Appellant ’s own evidence demonstrates that Bettelon was so far behind the suspect that h e lost sight of the suspect’s truck before terminating the pursuit. (Plaintiff’s Me mo Contra Summary Judgment at Drago Exh. A 011.) As for Gates, he was behind Bett elon. The evidence also establishes that more than one minute elapsed from the tim e Bettelon and Gates stopped the pursuit until the crash. ( Id . at Exh. A 012.) This timing is consistent with an incident report Bettelon completed after the crash. (Troy Defen dants’ Motion for Summary-20- Judgment at Justice Affidavit Exh. 1 p. 10.) {¶ 31} As for Underwood, he continued the pursuit behind a Tipp City c ruiser after Bettelon and Gates pulled off. Underwood also had been made awa re of the suspect’s unusual behavior prior to stealing the truck and his erratic dr iving thereafter. Based on the information known to him and the circumstances of the pursu it, Underwood reasonably could have believed the suspect posed a danger to th e public that outweighed the risks of the pursuit. He also testified in his deposition t hat his only role prior to the crash was backing up the Troy cruisers and, later, the Tipp Cit y cruiser ahead of him. Even if Underwood’s assessment of the situation might be questi oned in hindsight, no reasonable juror could conclude that he acted recklessly merely by following one or more other cruisers ahead of him at various times during the pursuit . As the Ohio Supreme

Court observed in Argabrite , 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 great er than negligent conduct.’ ” (Citation omitted.) Argabrite at ¶ 8 “These are rigorous standards that will in most circumstances be difficult to establish, especially with r espect to a law-enforcement officer carrying out the statutory duty to arrest and detain a person violating the law.” Id

. Based on the evidence before us, we hold that Underwood did not act recklessly, as a matter of law, by engaging in the conduct that he did. {¶ 32} Finding no error in the trial court’s entry of summary judgment in favor of the Appellees, we overrule the Appellant’s assignment of error. The judgment of the Montgomery County Common Pleas Court is affirmed.

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TUCKER, P.J. concurs. FROELICH, J., concurs in judgment only.

Copies sent to: Gerald S. Leeseberg John A. Markus Craig Tuttle Daniel T. Downey Paul M. Bernhart Nicholas E. Subashi Tabitha Justice Hon. Steven K. Dankof