[Cite as Iannuzzi v. Harris, 2011-Ohio-3185.]

STATE OF OHIO, MAHONING COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

CELESTE S. IANNUZZI, 

 PLAINTIFF-APPELLEE, 

VS. 

ERIC W. HARRIS, ET AL., 

 DEFENDANTS-APPELLANTS. 

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 CASE NO. 10-MA-117 

OPINION 

CHARACTER OF PROCEEDINGS: Civil Appeal from Court of Common 

Pleas of Mahoning County, Ohio 

Case No. 09CV2508 

JUDGMENT: Affirmed in part 

Reversed in part 

APPEARANCES: 

For Plaintiff-Appellee Attorney Ilan Wexler 

Attorney Robert D. Vizmeg 

Attorney Raymond J. Tisone 

21 N. Wickliffe Circle 

Youngstown, Ohio 44515 

For Defendants-Appellants Attorney Neil D. Schor 

26 Market Street, Suite 1200 

P.O. Box 6077 

Youngstown, Ohio 44501-6077 

Paul Gains 

Prosecutor 

Attorney Gina DeGenova Bricker 

Assistant Prosecuting Attorney 

21 W. Boardman Street, 6th Floor 

Youngstown, Ohio 44503 

JUDGES: 

Hon. Gene Donofrio 

Hon. Joseph J. Vukovich 

Hon. Mary DeGenaro 

 
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 Dated: June 17, 2011 
[Cite as Iannuzzi v. Harris, 2011-Ohio-3185.]

DONOFRIO, J. 

{¶1} Defendants-appellants, Eric Harris and the Mahoning County Sheriff 

Randall Wellington, appeal from a Mahoning County Common Pleas Court judgment 

denying their motion for summary judgment on a negligence claim filed by plaintiffappellee, Celeste Iannuzzi. 

{¶2} On July 13, 2007 at approximately 9:00 p.m., appellant Sheriff’s Deputy 

Eric Harris was working traffic patrol in Canfield Township on Route 224. Deputy 

Harris was sitting in his patrol car in the Westford Place office complex monitoring 

traffic speed with his radar. According to Deputy Harris, he clocked a vehicle 

travelling eastbound at 59 miles per hour in a 45-mile-per-hour zone. Consequently, 

Deputy Harris activated his lights and began to pull out onto 224. As he pulled out 

into traffic, a vehicle driven by appellee collided with Deputy Harris’s patrol car in the 

second eastbound lane (closest to the middle lane of the five lane road). 

{¶3} On July 2, 2009, appellee filed a complaint against appellants raising a 

negligence claim for injuries she sustained arising out of the traffic collision. 

Appellants filed an answer asserting the defense of sovereign immunity, among other 

defenses. 

{¶4} Appellants then filed a motion for summary judgment asserting that they 

were immune from liability under R.C. Chapter 2744. and no genuine issues of 

material fact existed. The trial court denied this motion finding that genuine issues of 

material fact did exist. Appellants filed a timely notice of appeal on July 16, 2010. 

{¶5} Initially, it should be noted that while generally the denial of a summary 

judgment motion is not a final, appealable order, in this case it is. Here appellants’ 

motion for summary judgment was based on the premise of governmental immunity. 

The Ohio Supreme Court has held: “When a trial court denies a motion in which a 

political subdivision or its employee seeks immunity under R.C. Chapter 2744, that 

order denies the benefit of an alleged immunity and is therefore a final, appealable 

order pursuant to R.C. 2744.02(C).” Hubbell v. City of Xenia, 115 Ohio St.3d 77, 

2007-Ohio-4839, at the syllabus. 

{¶6} Appellants raise two assignments of error that both allege the denial of 
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summary judgment was improper. Therefore, the same standard of review applies to 

both alleged errors. 

{¶7} In reviewing a trial court’s decision on a summary judgment motion, 

appellate courts apply a de novo standard of review. Cole v. Am. Industries & 

Resources Corp. (1998), 128 Ohio App.3d 546, 552. Thus, we shall apply the same 

test as the trial court in determining whether summary judgment was proper. Civ.R. 

56(C) provides that the trial court shall render summary judgment if no genuine issue 

of material fact exists and when construing the evidence most strongly in favor of the 

nonmoving party, reasonable minds can only conclude that the moving party is 

entitled to judgment as a matter of law. State ex rel. Parsons v. Flemming (1994), 68 

Ohio St.3d 509, 511. A “material fact” depends on the substantive law of the claim 

being litigated. Hoyt, Inc. v. Gordon & Assoc., Inc. (1995), 104 Ohio App.3d 598, 

603, citing Anderson v. Liberty Lobby, Inc. (1986), 477 U.S. 242, 247-48. 

{¶8} Additionally, the law on political subdivision immunity applies to both 

assignments of error. 

{¶9} Whether a political subdivision is entitled to immunity is analyzed using 

a three-tiered process. Green Cty. Agricultural Soc. v. Liming (2000), 89 Ohio St.3d 

551, 556. Under the first tier, R.C. 2744.02(A)(1) sets out the general rule that 

political subdivisions are not liable in damages. Id. at 556-57. Under the second tier, 

the court must determine whether any of the exceptions to immunity set out in R.C. 

2744.02(B) apply. Id. at 557. Finally, under the third tier, if the court finds that any of 

R.C. 2744.02(B)'s exceptions apply, it must consider R.C. 2744.03, which provides 

defenses and immunities to liability. Id. 

{¶10} Thus, in this case, we must begin our analysis under the first tier with 

the premise that appellants are not liable in damages here. 

{¶11} Next, under the second tier, the possible exception to immunity in this 

case is set out in R.C. 2744.02(B)(1), which provides: 

{¶12} “(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 
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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: 

{¶13} “(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.” 

{¶14} It is with these premises in mind that we move on to appellants’ 

assignments of error. 

{¶15} Appellants’ first assignment of error states: 

{¶16} “THE TRIAL COURT ERRED IN DENYING SUMMARY JUDGMENT 

TO APPELLANT MAHONING COUNTY SHERIFF RANDALL WELLINGTON 

PURSUANT TO OHIO REVISED CODE §2744.02(B)(1)(a) AS SHERIFF 

WELLINGTON IS IMMUNE FROM LIABILITY BECAUSE APPELLANT DEPUTY 

ERIC W. HARRIS WAS OPERATING HIS POLICE VEHICLE IN RESPONSE TO AN 

EMERGENCY CALL.” 

{¶17} Appellants argue here that pursuant to R.C. 2744.02(B)(1)(a), Sheriff 

Wellington is immune from liability. 

{¶18} R.C. 2744.02(B)(1)(a) provides that it is a full defense to liability under 

R.C. 2744.02(B)(1) when: “A member of a municipal corporation police department 

or any other police agency was operating a motor vehicle while responding to an 

emergency call and the operation of the vehicle did not constitute willful or wanton 

misconduct.” 

{¶19} “‘Emergency call’ means a call to duty, including, but not limited to, 

communications from citizens, police dispatches, and personal observations by 

peace officers of inherently dangerous situations that demand an immediate 

response on the part of a peace officer.” R.C. 2744.01(A). 

{¶20} Appellants argue that because Deputy Harris was responding to a “call 

to duty” when he went in pursuit of a speeding vehicle, immunity applies under R.C. 
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2744.02(B)(1)(a). 

{¶21} In raising their call to duty argument, appellants rely on Colbert v. 

Cleveland, 99 Ohio St.3d 215, 2003-Ohio-3319. In Colbert, the Ohio Supreme Court 

rejected the notion that only those calls to duty that concern inherently dangerous 

situations qualify as emergency calls. Id. at ¶11. Instead, it held “a call to duty 

involves a situation to which a response by a peace officer is required by the officer’s 

professional obligation.” Id. at ¶13. 

{¶22} In the present case, appellants assert that Deputy Harris was 

responding, as part of a call to duty, to his observation of a speeding vehicle violating 

a traffic law in an area that was given special treatment for radar detection and 

speeding enforcement by the Sheriff based on the area’s history of accidents and 

fatalities. Additionally, they point out that Deputy Harris considered the situation of 

apprehending the speeding vehicle to be inherently dangerous. And they claim that 

Deputy Harris activated his overhead lights and sirens before engaging in his pursuit 

on Route 224. 

{¶23} Appellee seems to concede in her brief that if there in fact was a 

speeding car, Deputy Harris may have been responding to a call to duty. However, 

she claims she raised a genuine issue of material fact as to whether there was a 

speeding car to begin with.1

{¶24} Two witnesses offered evidence as to whether there was a speeding 

vehicle of which Deputy Harris was in pursuit, Deputy Harris and Richard Eckmon. 

{¶25} In his deposition, Deputy Harris stated that just prior to the accident he 

was in a parking lot at Route 224 and Westford Place conducting stationary patrol 

and running radar. (Harris dep. 10). He stated that with his radar he determined that 

a vehicle travelling eastbound on Route 224 was speeding. (Harris dep. 10, 15). In 

response, Deputy Harris stated that he exited the parking lot to follow the speeding 

 

1 We should note that in their response brief, appellants argue that appellee never raised this 

argument in the trial court. However, appellants are mistaken. While appellee did spend quite a bit of 

her response to summary judgment on other arguments, she also argued that she “presented 

evidence that could lead a reasonable mind to believe that Deputy Harris was not attempting to pursue 

a speeding vehicle eastbound on Route 224” and cited to Richard Eckmon’s affidavit. 
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vehicle. (Harris dep. 15, 16). Deputy Harris stated that instead of pulling out of the 

right lane of a parking lot that was for cars to exit and head eastbound on Route 224, 

he exited out of the straight lane, which was designed for entrance into the parking 

lot. (Harris dep. 15-16). And when asked why he did not turn into the curb lane 

heading eastbound and instead attempted to turn into the inside eastbound lane, 

Deputy Harris stated that he wanted to make sure all the traffic was stopped. (Harris 

dep. 17). Deputy Harris stated that he activated his lights and siren. (Harris dep. 

16). He stated that as he attempted to enter the inside eastbound lane, the collision 

occurred. (Harris dep. 23). 

{¶26} Eckmon witnessed the traffic accident in question. He averred that he 

was driving eastbound on Route 224 in the outside lane while a woman was driving 

next to him in the inside lane also heading east. (Eckmon Aff.) Eckmon did not recall 

any other cars ahead of them. (Eckmon Aff.) Nor did he recall that anyone had 

passed them or was travelling faster than them between Raccoon Road and 

Westford Place. (Eckmon Aff.) Eckmon noticed a police car approach Route 224 

from Westford Place. (Eckmon Aff.) He saw that the police car was not going to stop 

and, therefore, applied his brakes very hard to avoid a collision. (Eckmon Aff.) 

Eckmon stated that while he noticed the officer’s lights turn on just as the officer 

reached Route 224, at no time did he hear a siren. (Eckmon Aff.) Eckmon then 

witnessed the accident. (Eckmon Aff.) He stated that he remembered having seen a 

couple of police cars parked along the south side of Route 224 near Sheetz, Bob 

Evans, or Ruby Tuesday’s. (Eckmon Aff.) This caused Eckmon to believe that the 

officer involved in the accident may have been turning around to meet with the other 

officers “as he was turning their way [which was westbound].” (Emphasis added; 

Eckmon Aff.) 

{¶27} Viewing the evidence in the light most favorable to appellee, as we are 

required to do, raises a genuine issue of material fact as to whether Deputy Harris 

was actually in pursuit of a speeding vehicle when appellee’s vehicle collided with his 

cruiser. Eckmon’s statements call into question whether Deputy Harris was pursuing 
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a speeding car travelling eastbound on Route 224. Contrary to what Deputy Harris 

stated, Eckmon indicated that Deputy Harris appeared to be turning westbound, not 

eastbound. Furthermore, Eckmon did not recall seeing another vehicle travelling in 

front of him that could have been speeding. Additionally, Deputy Harris’s statements 

that he did not exit the parking lot from the lane that would have directed him 

eastbound on Route 224 and that he decided not to simply turn into the curbside, 

eastbound lane lend credence to Eckmon’s statements. 

{¶28} As such, Sheriff Wellington is not entitled to summary judgment on the 

basis of R.C. 2744.02(B)(1)(a) because there is a genuine issue of material fact as to 

whether Deputy Harris was responding to a call to duty. Accordingly, appellants’ first 

assignment of error is without merit. 

{¶29} Appellants’ second assignment of error states: 

{¶30} “THE TRIAL COURT ERRED IN DENYING SUMMARY JUDGMENT 

TO APPELLANTS MAHONING COUNTY SHERIFF RANDALL WELLINGTON AND 

DEPUTY ERIC W. HARRIS AS APPELLANTS ARE IMMUNE FROM LIABILITY 

PURSUANT TO ORC §§ 2744.02(B)(1)(a) AND 2744.03(A)(6)(b), BECAUSE 

DEPUTY HARRIS DID NOT ACT IN A WILLFUL, WANTON OR RECKLESS 

MANNER OR WITH MALICIOUS PURPOSE OR IN BAD FAITH IN THE 

OPERATION OF HIS POLICE VEHICLE.” 

{¶31} Here appellants assert that pursuant to R.C. 2744.02(B)(1)(a) Sheriff 

Wellington is immune from liability and pursuant to R.C. 2744.03(A)(6) Deputy Harris 

is immune from liability. They base their assertions on the argument that Deputy 

Harris’s conduct was within the scope of his employment and was not willful, 

reckless, or in bad faith. 

{¶32} Appellants argue that appellee never asserted in her complaint or 

amended complaint that Deputy Harris acted outside the scope of his employment, 

with malicious purpose, in bad faith, or in a wanton or reckless manner. Instead, they 

contend, appellee merely stated a claim for negligence. 

{¶33} Appellants assert that Sheriff Wellington is entitled to immunity under 
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R.C. 2744.02(B)(1)(a). It is only a full defense to liability for the political subdivision 

under R.C. 2744.02(B)(1)(a) when: “A member of a municipal corporation police 

department or any other police agency was [1] operating a motor vehicle while 

responding to an emergency call and [2] the operation of the vehicle did not 

constitute willful or wanton misconduct.” (Emphasis added.) As discussed in 

appellants’ first assignment of error, a genuine issue of material fact exists as to 

whether Deputy Harris was responding to a call to duty (emergency call) because a 

question exists as to whether he was in fact pursuing a speeding vehicle. Thus, 

whether Deputy Harris’s operation of his vehicle constituted willful or wanton 

misconduct is not determinative of whether Sheriff Wellington is entitled to immunity 

under R.C. 2744.02(B)(1) since both conditions set out in that section must apply. 

{¶34} As to Deputy Harris, however, immunity applies under R.C. 

2744.03(A)(6). 

{¶35} R.C. 2744.03(A)(6) provides: 

{¶36} “(A) In a civil action brought against a political subdivision or an 

employee of a political subdivision to recover damages for injury, death, or loss to 

person or property allegedly caused by any act or omission in connection with a 

governmental or proprietary function, the following defenses or immunities may be 

asserted to establish nonliability: 

{¶37} “* * * 

{¶38} “(6) In addition to any immunity or defense referred to in division (A)(7) 

of this section * * * the employee is immune from liability unless one of the following 

applies: 

{¶39} “(a) The employee's acts or omissions were manifestly outside the 

scope of the employee's employment or official responsibilities; 

{¶40} “(b) The employee's acts or omissions were with malicious purpose, in 

bad faith, or in a wanton or reckless manner; 

{¶41} “(c) Civil liability is expressly imposed upon the employee by a section 

of the Revised Code. * * *.” 
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{¶42} As appellants point out, appellee did not assert in either her complaint 

or her first amended complaint that Deputy Harris acted with a malicious purpose, in 

bad faith, or in a wanton or reckless manner. Nor did she allege that he was acting 

outside of the scope of his employment. She merely asserted that Deputy Harris, 

while in the scope of his employment, acted negligently. 

{¶43} In Elston v. Howland Local Schools, 113 Ohio St.3d 314, 316, 2007-

Ohio-2070, the appellate court reversed the trial court’s grant of summary judgment 

to the school on its claimed immunity. In part, the appellate court concluded that 

genuine issues of material fact existed regarding whether the coach in question acted 

with a malicious purpose, in bad faith, or in a wanton and reckless manner despite 

the fact that the plaintiff had not included any such allegations of malice, bad faith, or 

reckless conduct in his amended complaint. The Ohio Supreme Court reversed the 

appellate court’s decision, in part reasoning: 

{¶44} “[B]ecause the amended complaint failed to allege malice, bad faith, or 

wanton or reckless conduct, the appellate court strayed well beyond the pleadings 

and erred in reversing the judgment of the trial court in that regard, and we need not 

further address that issue.” Id. at ¶31. 

{¶45} Following Elston, other courts have also found that a party’s complaint 

against a political subdivision must specifically allege malice, bad faith, or wanton or 

reckless conduct in order to argue these issues on summary judgment. See Smith v. 

Martin, 176 Ohio App.3d 567, 2008-Ohio-2978, at ¶¶32-33; Ohio Bell Tel. Co. v. 

Digioia-Suburban Excavating , L.L.C., 8th Dist. Nos. 89708,89907, 2008-Ohio-1409, 

at ¶¶39-40. 

{¶46} Thus, because appellee failed to assert in her complaint or first 

amended complaint that Deputy Harris acted with malice, bad faith, or wanton or 

reckless conduct, she may not now rely on such allegations to defeat Deputy Harris’s 

personal immunity under R.C. 2744.03(A)(6). 

{¶47} Consequently, Deputy Harris is entitled to immunity under R.C. 

2744.03(A)(6) and the trial court erred in failing to grant summary judgment in his 
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favor. 

{¶48} Accordingly, appellants’ second assignment of error has merit as it 

applies to Deputy Harris but it does not have merit as it applies to Sheriff Wellington. 

{¶49} For the reasons stated above, the trial court’s judgment is hereby 

reversed in part and summary judgment is entered in favor of Deputy Harris. The 

trial court’s judgment is affirmed as it applies to Sheriff Wellington. 

Vukovich, J. concurs. 

DeGenaro, J. concurs.