[Cite as Williams v. Columbus, 2016-Ohio-7969.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

Mikel Williams, : 

 Plaintiff-Appellee, : 

 No. 16AP-269 

v. : (C.P.C. No. 14CV-13109)

City of Columbus, et al., : (REGULAR CALENDAR) 

 Defendants-Appellants. : 

 

D E C I S I O N 

Rendered on December 1, 2016 

 

On brief: Schiff & Associates Co., LPA, Terry V. Hummel, 

and Emily Valandingham, for appellee. Argued: Terry V. 

Hummel. 

On brief: Richard C. Pfeiffer, Jr., City Attorney, and

Janet R. H. Arbogast, for appellant. Argued: Janet R. H. 

Arbogast. 

 

APPEAL from the Franklin County Court of Common Pleas 

BRUNNER, J. 

{¶ 1} Defendants-appellants, City of Columbus ("City") and Brandon Petry, a 

Columbus police officer, appeal from the denial of their motion for summary judgment 

rendered by the Franklin County Court of Common Pleas on March 10, 2016. Because we 

find no error in the trial court's conclusion that reasonable jurors could disagree about 

whether the officer in question drove his squad car in a "wanton" manner, we affirm. 

I. FACTS AND PROCEDURAL HISTORY 

{¶ 2} On December 15, 2014, plaintiff-appellant, Mikel Williams, filed a 

complaint in the Franklin County Court of Common Pleas alleging that Petry had caused a 

collision between them on November 21, 2013. The City and Petry filed an answer to the 
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No. 16AP-269 

complaint on August 20, 2015.1 In the answer, the City admitted that a traffic collision 

occurred between Williams and Petry on November 21, 2013 in the area of Sullivant 

Avenue in Columbus, Ohio and that Petry was acting within the scope and course of his 

employment as a police officer when it occurred. (Answer at 1.) 

{¶ 3} Having narrowed the scope of potential disagreements in the case, the City 

and Petry moved for summary judgment on November 20, 2015 primarily on the question 

of governmental immunity. The defendants submitted three exhibits in connection with 

the motion for summary judgment, an affidavit from Petry, an affidavit from his sergeant, 

James Sheehan, and a copy of the dash cam video from Petry's patrol car. (Ex. A, 

Nov. 20, 2015 Mot. for Summ. Jgmt.,2 Petry Aff.; Ex. A-1, Dash Cam Video; Ex. B, 

Sheehan Aff.) Petry explained in his affidavit that on November 21, 2013, shortly before 

6 p.m., he was on his way to provide backup to another officer who had initiated a traffic 

stop on Sullivant Avenue just east of Belvidere Avenue. (Ex. A, Petry Aff. at ¶ 2-4.) He 

related that the street was dry, the weather was cloudy, and it was dark out. Id. at ¶ 4. He 

explained that he was in the process of attempting a U-turn with his flashing lights 

illuminated when Williams' van collided with his cruiser. Id. at ¶ 5. 

{¶ 4} The video of the accident shows that it was, indeed, fully dark. (Ex. A-1.) 

The video shows that Petry drove along Sullivant Avenue which, at the place where the 

accident occurred, is a four-lane road with no median or turn lane. (Ex. A-1 at 17:41:20.) 

Petry drove in the left hand lane until he passed another police car engaged in a traffic 

stop on the opposite side of the road. (Ex. A-1 at 17:41:23.) A short distance past this 

point, he activated his flashing lights, veered into the right hand lane, and then, from the 

right hand lane, without first stopping or slowing significantly, attempted a left hand Uturn crossing all four lanes of traffic and the double-yellow line. (Ex. A-1 at 17:41:25-

17:41:33.) Just two seconds elapsed between when Petry turned on his lights and when he 

began to turn the car and just seven seconds elapsed between when Petry turned on his 

lights and the collision occurred. (Ex. A-1 at 17:41:26-17:41:33.) Petry slowed from 25 to 

20 miles per hour as he swerved into the right lane to begin the attempted U-turn, then 

 

1 The trial court granted leave to file a late answer. (Sept. 21, 2015 Leave to File Granted.) 

2 Petry's affidavit was originally filed on November 20, 2015 without a signature, but a signed affidavit was 

filed on November 24, 2015 and substituted by court order on January 29, 2016 for the unsigned copy. 
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No. 16AP-269 

slowed further to 15 miles per hour as the car turned left, and finally slowed to 10 miles 

per hour as he traveled across the center line and oncoming lanes. (Ex. A-1 at 17:41:26-

17:41:33.) However, he was unable to complete the U-turn in the space of four lanes and 

at no time did he stop until his patrol car was positioned broadside across the curb lane of 

oncoming traffic an instant before impact. Id. The video also shows that at the time Petry 

attempted the U-turn, a line of traffic was stopped on the other side of the road in the 

inside lane waiting to turn left and thus the opposing traffic's curb lane was screened from 

view at the point where he began the U-turn. (Ex. A-1 at 17:41:30; Nov. 20, 2015 Williams 

Dep. at 45-46, filed Feb. 22, 2016.) Williams was driving his minivan in the curb lane, 

and the video demonstrates that he became visible only approximately two seconds before 

the collision. (Ex. A-1 at 17:41:30-17:41:33.) Impact occurred, following an audible 

screech of tires, with the passenger side of the police car. Id.

{¶ 5} Both Petry and Sheehan's affidavits recount that Williams stated that he was 

not injured. (Ex. A, Petry Aff. at ¶ 6; Ex. B, Sheehan Aff. at ¶ 4.) On the video, a voice can 

be heard asking if the officer is "alright," and the officer can be heard asking if Williams is 

"alright" but Williams' reply is not audible. (Ex. A-1 at 17:41:56-17:42:01.) Then, 

approximately 13 minutes after the accident, an unidentified voice asks, "Sir, are you 

okay?" (Ex. A-1 at 17:54:25-17:54:29). A voice replies, "[r]ight now I am." Id. Both 

officers noted damage to Williams' van caused by the collision. (Ex. A, Petry Aff. at ¶ 7; 

Ex. B, Sheehan Aff. at ¶ 6.) 

{¶ 6} On December 4, 2015, Williams filed a memorandum in opposition to 

summary judgment relying on the materials attached to defendants' motion in addition to 

his own deposition testimony (which was subsequently filed with the trial court on 

February 22, 2016). Williams' deposition testimony is consistent with the depiction of 

events in the video and generally as related by the officers—that it was dark but dry, that 

there were a number of cars stopped in the left hand lane waiting to turn left screening the 

curb lane from view, and that Williams was traveling in the curb lane when Petry pulled 

out in front of him. (Williams Dep. at 42, 45-46, 48-50.) In addition, Williams testified 

that Petry told him that Williams was not at fault and that Petry was likely in more trouble 

than Williams over the accident. Id. at 62. This conversation is also audible (though parts 

are unintelligible) on the video. (Ex. A-1 at 17:49:21-17:49:30.) Williams also testified 
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No. 16AP-269 

that both his front air bags deployed, that his van was totaled, and that he has experienced 

continuing pain as a result of the accident. (Williams Dep. at 61, 68-76, 87.) 

{¶ 7} On December 11, the City and Petry filed a reply. Three months later, on 

March 10, 2016 the trial court denied the motion for summary judgment reasoning that 

the City and Petry were not entitled to summary judgment based on governmental 

immunity because reasonable jurors could disagree about whether Petry drove wantonly. 

II. ASSIGNMENTS OF ERROR 

{¶ 8} The City and Petry assert two assignments of error for review in their joint 

brief: 

[1.] The trial court erred when it denied the motion for 

summary judgment filed by the City of Columbus. 

[2.] The trial court erred when it denied the motion for 

summary judgment filed by Officer Brandon Petry. 

Because resolution of these assignments of error ultimately turns on a question common 

to both, we address them together. 

III. DISCUSSION 

{¶ 9} Ohio Rule of Civil Procedure 56(C) provides that: 

Summary judgment shall be rendered forthwith if the 

pleadings, depositions, answers to interrogatories, written 

admissions, affidavits, transcripts of evidence, and written 

stipulations of fact, if any, timely filed in the action, show that 

there is no genuine issue as to any material fact and that the 

moving party is entitled to judgment as a matter of law. 

The Supreme Court of Ohio has explained: 

Summary judgment will be granted only when there remains 

no genuine issue of material fact 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. Civ.R. 56(C); Temple 

v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 Ohio 

Op. 3d 466, 364 N.E.2d 267. The burden of showing that no 

genuine issue of material fact exists falls upon the party who 

files for summary judgment. Dresher v. Burt (1996), 75 Ohio 

St.3d 280, 294, 1996-Ohio-107, 662 N.E.2d 264. 
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No. 16AP-269 

Byrd v. Smith, 110 Ohio St.3d 24, 2006-Ohio-3455, ¶ 10; see also, e.g., Esber Beverage Co. 

v. Labatt United States Operating Co., L.L.C., 138 Ohio St.3d 71, 2013-Ohio-4544, ¶ 9. 

{¶ 10} In deciding summary judgment, the trial court must give the nonmoving 

party "the benefit of all favorable inferences when evidence is reviewed for the existence of 

genuine issues of material facts." Byrd at ¶ 25. When reviewing a trial court's decision on 

summary judgment, our review is de novo and we therefore apply the same standards as 

the trial court. Bonacorsi v. Wheeling & Lake Erie Ry., 95 Ohio St.3d 314, 2002-Ohio2220, ¶ 24. 

A. Potential Liability of the City 

{¶ 11} To determine whether a political subdivision is entitled to immunity 

pursuant to R.C. Chapter 2744, a court must engage in a multi-tiered analysis. Hubbard 

v. Canton City School Bd. of Edn., 97 Ohio St.3d 451, 2002-Ohio-6718, ¶ 10, citing Cater 

v. Cleveland, 83 Ohio St.3d 24, 28 (1998). First, the court must determine whether the 

entity claiming immunity is a political subdivision and whether the alleged harm occurred 

in connection with a governmental or proprietary function. R.C. 2744.02(A)(1). In this 

case, there is no dispute that the City is a political subdivision as defined in R.C. 

2744.01(F) or that policing is a "governmental function." R.C. 2744.02(A)(1); R.C. 

2744.01(C)(2)(a). It is also undisputed the Petry was in the employ of the City and 

engaged in his duty as a police officer when the accident occurred. (Answer at 1.) 

{¶ 12} The next tier of the analysis is to consider whether any of the exceptions to 

immunity enumerated in R.C. 2744.02(B)(1) through (5) apply. Hubbard at ¶ 12. R.C. 

2744.02(B)(1)(a) provides, in relevant part, as follows: 

[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. The 

following are full defenses to that liability: 
6 

No. 16AP-269 

(a) 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. 

(Emphasis added.) Thus, by statute, there is municipal liability for injury caused by the 

negligent operation of a motor vehicle by a municipal employee when engaged within the 

scope of employment and authority. Under R.C. 2744.02(B), whether or not an aggrieved 

party can prove that his or her claimed injury resulted from a government employee's 

negligence in operating a motor vehicle within the scope of their employment and 

authority, if the government can show that its employee's action was not willful or wanton 

misconduct, recovery is barred. Williams claimed that Petry's conduct was wanton 

misconduct only and not "willful misconduct." The City and Petry sought through 

summary judgment to prove that the facts presented at that juncture of the litigation were 

not in dispute and that, as a matter of law, they proved that Petry's conduct was not 

wanton misconduct, barring Williams from recovery for his claimed personal injury. 

{¶ 13} We note for the purpose of analysis that Petry was acting within the scope of 

his employment and authority under R.C. 2744.02(B) when he made the U-turn. His 

undisputed purpose was to assist his fellow officer whose vehicle was parked on the other 

side of the road and some distance back with an arrest for solicitation of prostitution and 

was by law deemed an "emergency call." R.C. 2744.01(A) concerning tort liability of 

political subdivisions provides that, " '[e]mergency 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." Even though the other officer's 

situation did not seem to involve "an inherently dangerous situation," the legal definition 

of "emergency call" does not require a subjective determination of "emergency." Smith v. 

McBride, 130 Ohio St.3d 51, 2011-Ohio-4674, ¶ 21-24; Colbert v. Cleveland, 99 Ohio St.3d 

215, 2003-Ohio-3319, ¶ 10-15. That Petry was an employee of the City who was engaged 

in a governmental function (policing) and was on his way in a motor vehicle to assist 

another officer with a traffic stop is sufficient to trigger the defense proffered by the City 

and Petry. If the City and Petry can prove that there was no wanton misconduct, any 
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No. 16AP-269 

showing of negligence is without consequence because of the operation of Ohio's 

governmental immunity statute. 

{¶ 14} On our de novo review, the question of the City's immunity thus resolves to 

a single issue, whether the summary judgment record, construed most strongly in 

Williams' favor, shows that Petry's driving was not wanton misconduct. 

B. Potential Liability of Petry 

{¶ 15} Because Petry was also sued individually, also asserted immunity, and also 

was denied summary judgment on the issue of immunity, we must consider his individual 

immunity. Fabrey v. McDonald Village Police Dept., 70 Ohio St.3d 351, 356 (1994). See 

also Rankin v. Cuyahoga Cty. Dept. of Children & Family Servs., 118 Ohio St.3d 392, 

2008-Ohio-2567, ¶ 37 (" '[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." Fabrey at 356, quoting Roszman v. 

Sammett, 26 Ohio St.2d 94, 96-97 (1971).). 

{¶ 16} This court has applied the Fabrey standard in Yonkings v. Piwinski, 10th 

Dist. No. 11AP-07, 2011-Ohio-6232, ¶ 33, when we stated: 

In the context of political subdivision immunity, wanton 

misconduct is "the failure to exercise any care whatsoever." 

Fabrey v. McDonald Village Police Dept., 70 Ohio St. 3d 351, 

356, 1994 Ohio 368, 639 N.E.2d 31, citing Hawkins v. Ivy

(1977), 50 Ohio St.2d 114, 363 N.E.2d 367, syllabus. " '[M]ere 

negligence is not converted into wanton misconduct unless 

the evidence establishes a disposition to perversity on the part 

of the tortfeasor.' " Id. at 356, quoting Roszman v. Sammett

(1971), 26 Ohio St. 2d 94, 96-97, 269 N.E.2d 420. "Such 

perversity must be under such conditions that the actor must 

be conscious that his conduct will in all probability result in 

injury." Id., citing Roszman at 97. 

{¶ 17} The original analysis in Fabrey involved a discussion of recklessness with 

"wanton misconduct" that was later criticized and explained as the two not being 

"functionally equivalent." See Glenn v. Columbus, 10th Dist. No. 16AP-15, 2016-Ohio7011, ¶ 8-31 (separately analyzing immunity of a fire truck driver and the immunity of the 

City). "The three-tiered analysis regarding the potential liability of a political subdivision 

'does not apply when determining whether an employee of the political subdivision will be 
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No. 16AP-269 

liable for harm caused to an individual.' " Stevens v. Maxson, 10th Dist. No. 12AP-672, 

2013-Ohio-5792, ¶ 12, quoting Mashburn v. Dutcher, 5th Dist. No. 12 CAE 010003, 2012-

Ohio-6283, ¶ 33, citing Cramer v. Auglaize Acres, 113 Ohio St.3d 266, 2007-Ohio-1946, 

¶ 17. Instead, we consider R.C. 2744.03(A)(6)(b) which provides, in relevant part, as 

follows: 

(A) In a civil action brought against * * * 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: 

* * * 

(6) [T]he employee is immune from liability unless one of the 

following applies: 

* * * 

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

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

{¶ 18} It is not disputed that Petry is (and was at all relevant times) an employee of 

the City, which is a political subdivision, or that the accident occurred within the scope of 

his employment, policing, a governmental function. See R.C. 2744.03(A). (Answer at 1.) 

Williams also does not allege that Petry acted in bad faith or with malicious purpose. See

Compl. in passim. So whether Petry is entitled to immunity is a question of whether he 

drove in a wanton or reckless manner. 

C. Whether Petry's Driving Conduct was Wanton 

{¶ 19} The Supreme Court of Ohio has defined "wanton" in similar cases as: 

Wanton misconduct is the failure to exercise any care toward 

those to whom a duty of care is owed in circumstances in 

which there is great probability that harm will result. 

Hawkins [v. Ivy], 50 Ohio St.2d [114,] 117-118, 363 N.E.2d 

367 [(1977)]; see also Black's Law Dictionary 1613-1614 (8th 

Ed.2004) (explaining that one acting in a wanton manner is 

aware of the risk of the conduct but is not trying to avoid it 

and is indifferent to whether harm results). 
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No. 16AP-269 

(Emphasis added.) Anderson v. Massillon, 134 Ohio St.3d 380, 2012-Ohio-5711, ¶ 33. 

See also Matkovich v. Penn Cent. Transp. Co., 69 Ohio St.2d 210, 212 (1982). Because 

collisions between cars are, by nature, events in which there is great probability that harm 

will result if care is not taken, our analysis focuses on what it means to act without "any 

care" and as such for an act to be wanton. Anderson. 

{¶ 20} Despite the broad literal meaning of the words, "any care," in Anderson and 

previously in Matkovich, this Court previously held that "any care" is not automatically 

found merely by turning on lights and siren, using brakes, or looking where one is going. 

We explained: 

Defendants argued and the trial court found that since the 

operator of the emergency vehicle had his lights and siren 

running that he had complied with the requirements of "any 

care" as stated in Matkovich v. Penn Central. Transp. Co.

(1982), 69 Ohio St. 2d 210, 431 N.E.2d 652. Thus, the trial 

court found defendants could not be held to be wantonly or 

recklessly liable. We reject that as a simplistic analysis. Under 

that criteria, you could drive an emergency vehicle in any 

manner that you please and not be guilty of wanton or 

reckless misconduct simply because you activated your siren 

and lights. Even looking where you are going or applying one's 

brakes meets the literalistic, but not legal, definition of "any 

care." If "any care" is construed in that fashion, the exception 

becomes virtually meaningless. 

Hunter v. Columbus, 139 Ohio App.3d 962, 970 (10th Dist.2000). Whether the "any 

care" standard is met is a fact-specific determination. Id. at 971 ("Each situation like this 

must be evaluated on its own facts."). Indeed, it is so fact-specific that both the Supreme 

Court and this Court have explained that "[w]anton misconduct is a jury question." 

Matkovich at 214; see also, e.g., Fabrey at 356 (remarking that "the issue of wanton 

misconduct is normally a jury question"); Hiles v. Franklin Cty. Bd. of Commrs., 10th 

Dist. No. 05AP-253, 2006-Ohio-16, ¶ 40 ("Determining whether a defendant engaged in 

wanton conduct is generally a question of fact for the jury."). Though this Court in Hiles

also recognized that the matter can be appropriate for summary judgment "where the 

record contains insufficient evidence to support such a finding" of wantonness, we 

recognize that because the determination of wantonness is so fact specific, such matters 

are normally the province of the jury. Id. at ¶ 40. 
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No. 16AP-269 

{¶ 21} The Eighth District Court of Appeals has considered a case in which it was 

contended that a police officer's U-turn without any warning or without taking visible 

precaution constituted a wanton act. Sparks v. Cleveland, 8th Dist. No. 81715, 2003-

Ohio-1172, ¶ 20. In Sparks, the police officer's vehicle and the plaintiffs' vehicle were 

traveling in the same direction. The officer testified that "he steered to the curb lane 

prior to making the U-turn because his vehicle required that maneuver to execute a Uturn." Id. at ¶ 23. The officer testified that "his vehicle had the overhead lights on, but 

did not have the siren on for fear of alerting the suspect to the police's presence." Id. 

The plaintiffs presented an affidavit of a witness who had been several car lengths 

behind them who had pulled over to the side of the road for the police car and had 

witnessed the plaintiffs similarly do so ahead of the witness. After the police vehicle 

passed both plaintiffs' and the witness' vehicles, the witness "saw the officer suddenly 

slow down, shut off the lights, pull over to the side of the road, and, after several 

seconds, attempt to make a U-turn without any warning colliding with Sparks' vehicle." 

Id. Here, clearly, the plaintiffs' vehicle had resumed travel and passed the previously 

stopped police car when the collision occurred. In Sparks, the Eighth District found that 

a determination of wanton conduct was subject to determination on summary judgment 

and that the plaintiffs had at best shown negligence. Id. at ¶ 23-24. 

{¶ 22} Williams' case is significantly different from Sparks in that Petry's U-turn 

was into oncoming traffic that not even he could see because of the line of cars in the 

center oncoming lane that were positioned in queue to turn left. When construing the 

evidence most strongly in favor of Williams, reasonable jurors could differ on whether 

Petry's actions constituted wanton conduct. Other factors not present in Sparks were that 

there was evidence that it was dark and cloudy on the night in question which reduced 

visibility. (Ex. A, Petry Aff. at ¶ 4; Ex. A-1.) Petry activated his lights only two seconds 

before beginning the U-turn maneuver and only seven seconds before impact with 

Williams. (Ex. A-1 at 17:41:26-17:41:33.) More compelling, there is video that visually 

demonstrates that at the time Petry attempted the U-turn, the lane of oncoming traffic in 

which Williams was traveling in the oncoming right lane was screened from Petry's view 

by the traffic waiting to execute left turns in the oncoming left lane. (Ex. A-1 at 17:41:30; 

Williams Dep. at 45-46.) The video demonstrates that Petry could not see Williams' van 
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No. 16AP-269 

and supports an evidentiary inference that Petry could not have fairly expected Williams 

to see his vehicle with its lights being turned on only about five or six seconds before he 

crossed Williams' path of travel. (Ex. A-1 at 17:41:26-17:41:32.) A reasonable juror could 

infer that Petry knew he could not see oncoming traffic, including Williams' van, and that 

a car in Williams' path of travel would not likely see him, yet he made the U-turn anyway. 

The video shows that Petry slowed relatively little and was still traveling 20 to 25 miles 

per hour when he began the maneuver and despite the lack of visibility of oncoming traffic 

had not stopped before he crossed Williams' lane. (Ex. A-1 at 17:41:26-17:41:33.) 

Moreover, at the speed he was moving, his patrol car was unable to complete much more 

than half of his intended U-turn within the width of four lanes. Id.

{¶ 23} This Court recently issued a decision on the question of when an emergency 

vehicle is driven in a wanton manner. Glenn. In the Glenn case, at 3:09 in the afternoon 

on November 12, 2013, a fire engine responding to a fire alarm at an elementary school 

approached an intersection with its emergency lights activated and blew its horn several 

times before entering the intersection against a red signal. Id. at ¶ 2. The record was in 

conflict about whether or not the siren was also activated. Id. at ¶ 20. But the record was 

not in conflict about the fact that the fire engine lights were running, that the fire engine 

blew several blasts on its horn, and that all cars near the intersection had stopped except 

Glenn's, which pulled in front of the fire engine, and was struck. Id. at ¶ 15-20. It was 

also undisputed that while the fire engine did not stop as it entered the intersection, it was 

driving at 35 miles per hour, which was the speed limit of the road. Id. at ¶ 24. 

{¶ 24} Glenn is different from this case in a number of ways but does assist to 

explain why this case calls for a different outcome. In Glenn it was daylight whereas here 

it was a cloudy night. (Ex. A, Petry Aff. at ¶ 4; Ex. A-1.) Id. at ¶ 2. In Glenn the fire truck 

had lights running, blew its horn several times, and may also have had a siren activated, 

all before it entered the intersection. Id. at ¶ 15-20. Here, the officer did not activate a 

siren, did not honk the car's horn, and only activated his lights two seconds before 

beginning the sudden maneuver that led to the accident. (Ex. A-1 at 17:41:26-17:41:34.) 

In Glenn, the fire engine was on a predictable, visible trajectory and was unable to stop 

when a car suddenly ventured into its path. Id. at ¶ 2, 15-20. Here, the police cruiser 

made a sudden and unpredictable maneuver that brought it quickly into the path of a 
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No. 16AP-269 

minivan traveling in a lane the video shows was obscured from the officer's sight, with the 

result that the minivan, traveling in a straight and legal path but unable to stop in time, 

struck the cruiser. (Ex. A-1 at 17:41:26-17:41:34.) We, therefore, consider this case 

distinguishable from Sparks and Glenn. 

{¶ 25} Considering the video and other evidence in a light most favorable to 

Williams as we are required to do at this stage of the case, the evidence could support a 

factual inference by a jury that Petry's conduct was wanton. A reasonable juror could 

conclude that Petry made the maneuver without knowing whether there was oncoming 

traffic in the far lane, without knowing whether, if there was a vehicle in that lane, it could 

see his cruiser or its lights (which he activated a bare few seconds before the maneuver), 

and without knowing whether such a vehicle could possibly stop in time to avoid the 

collision. When construing the evidence most strongly in favor of Williams, a reasonable 

juror could conclude that Petry's driving was wanton.3 Both assignments of error are 

therefore overruled. 

IV. CONCLUSION 

{¶ 26} The trial court correctly ascertained that whether to grant summary 

judgment in favor of the City and Petry resolved to a single inquiry, whether Petry's 

driving was wanton. Because reasonable minds could differ on that question, the City and 

Petry could not show, particularly "when construing the evidence most strongly in favor" 

of Williams, that "reasonable minds [could] only conclude that the [defendants were] 

entitled to judgment as a matter of law." Byrd at ¶ 10. We affirm the judgment of the 

Franklin County Court of Common Pleas. 

Judgment affirmed. 

HORTON, J., concurs. 

LUPER SCHUSTER, J., concurs in part and dissents in part. 

LUPER SCHUSTER, J., concurring in part and dissenting in part. 

{¶ 27} I respectfully dissent from the majority's conclusion that a reasonable jury 

could find that Officer Petry drove his police cruiser in a "wanton" manner. The majority 

concludes that a reasonable jury could find that Officer Petry acted in a wanton manner 

 

3 Because we agree that Petry's driving, when viewed in the light most favorable to Williams, could be found 

wanton by "reasonable minds," we do not consider whether it was reckless. Byrd at ¶ 10. 
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No. 16AP-269 

because the evidence demonstrates that the officer attempted to make the U-turn 

maneuver without knowing (1) whether there was any oncoming vehicle in the curb lane, 

(2) whether the driver of such a vehicle could see his cruiser or its emergency lights, or 

(3) whether that driver would be able to stop his vehicle before striking the police cruiser. 

I disagree. 

{¶ 28} I believe the majority's analysis is flawed as to whether there is sufficient 

evidence to send to the jury the issue of wanton misconduct. Wanton misconduct "is the 

failure to exercise any care toward those to whom a duty of care is owed in circumstances 

in which there is great probability that harm will result." Anderson v. Massillon, 134 Ohio 

St.3d 380, 2012-Ohio-5711, ¶ 33. As the majority correctly notes in Hunter v. Columbus, 

139 Ohio App.3d 962 (10th Dist.2000), this court cautioned against using too "simplistic" 

of an analysis when considering whether an actor exercised "any care." The "simplistic" 

analysis rejected by this court in Hunter was the proposition that operating an emergency 

vehicle with lights and sirens running was necessarily sufficient to satisfy the "any care" 

requirement. Id. at 970. In Hunter, the emergency vehicle had lights and sirens running 

but the operator otherwise engaged in "extreme" conduct, namely, going left of center 

while traveling 26 m.p.h. above the road's 35 m.p.h. speed limit. Id. at 971. Because the 

probability of harm created by the operator of the emergency vehicle was much greater in 

those circumstances, the finding of "any care" reasonably required more than just lights 

and sirens. Id.

{¶ 29} Other than citing Hunter's directive not to engage in a simplistic analysis as 

to the wanton misconduct issue, the majority does not analyze whether Officer Petry 

exercised any care. Instead, the majority in effect analyzes the facts under the reckless 

conduct standard. To reach its conclusion as to the wanton misconduct issue, the 

majority reviews Officer Petry's U-turn maneuver in relation to the known risk he 

disregarded in making that turn. The terms wanton and reckless, however, define 

different degrees of care. Anderson at paragraph one of the syllabus and ¶ 30-31. While 

wanton misconduct is defined as the absence of any care, reckless conduct is defined as 

"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." Id. at ¶ 34. 
14 

No. 16AP-269 

{¶ 30} The undisputed evidence demonstrates that Officer Petry turned on his 

cruiser's emergency lights before he began to make the U-turn, which was five to six 

seconds before he crossed Williams' path of travel. From Officer Petry's perspective at the 

time he began the U-turn, the only oncoming vehicles he could see were stopped. By 

turning on his emergency lights directly in front of the stopped oncoming vehicles, and 

before slowing to begin the U-turn maneuver, Officer Petry exhibited some care in trying 

to prevent a possible collision. He did not, however, otherwise demonstrate the type of 

"extreme" conduct that would "effectively negate or eliminate the significance of the care 

he did exhibit" for the purpose of analyzing whether his conduct was wanton. Glenn v. 

Columbus, 10th Dist. No. 16AP-15, 2016-Ohio-7011, ¶ 24. 

{¶ 31} Although Officer Petry did not act wantonly, a reasonable jury could find his 

conduct was reckless. As the majority notes, even though Officer Petry did not, and could 

not, see traffic movement in the obstructed curb lane when he began the U-turn, he did 

not take all necessary and precautionary steps to account for the possibility that oncoming 

motorists in that lane would be approaching too close and too fast to safely stop before 

striking the officer's vehicle. Evidence concerning this disregard of a known risk presents 

a genuine issue of fact as to whether Officer Petry's conduct was reckless or merely 

negligent. 

{¶ 32} Because no reasonable jury could find that Officer Petry drove his police 

cruiser in a wanton manner, I conclude that the trial court erred in denying the city's 

motion for summary judgment. Accordingly, I would sustain appellants' first assignment 

of error. However, because a reasonable jury could find that Officer Petry was reckless, I 

conclude the trial court did not err in denying the officer's motion for summary judgment. 

Thus, I would overrule appellants' second assignment of error but for different reasons 

than those expressed by the majority.