[Cite as Timms v. Ohio State Hwy. Patrol, 2011-Ohio-7071.]

Court of Claims of Ohio

The Ohio Judicial Center 

65 South Front Street, Third Floor 

Columbus, OH 43215 

614.387.9800 or 1.800.824.8263 

www.cco.state.oh.us 

ROBERT R. TIMMS 

 Plaintiff 

 v. 

OHIO STATE HIGHWAY PATROL 

 Defendant 

Case No. 2011-09756-AD 

Deputy Clerk Daniel R. Borchert 

MEMORANDUM DECISION 

{¶1} Plaintiff, Robert Timms, alleged that his car was damaged as a result of 

negligence on the part of defendant, Ohio State Highway Patrol (OSHP). Specifically, 

plaintiff claimed that he was driving east on Interstate 470 on June 25, 2011, at 

approximately 11:00 a.m. when a highway patrol car “with flashing lights, passed me by 

going between my car and the guardrail. He did not have his siren on. Debris and 

gravel hit the side of my car cracking the window on the front passenger side of the car.” 

In his complaint, plaintiff requested damages in the amount of $515.88, the cost to 

replace the passenger side window. The $25.00 filing fee was paid. 

{¶2} Defendant denied liability contending the OSHP is entitled to immunity 

because the damage to plaintiff’s car occurred while the trooper was operating a motor 

vehicle in response to an emergency call. Defendant explained that Trooper Gary 

Wright was in pursuit of two speeding vehicles which were being driven in excess of 

twenty miles over the posted speed limit on I-470. According to the trooper’s affidavit, 

he approached plaintiff’s car from behind with his emergency lights activated; plaintiff 

failed to yield the right of way; and since there was another vehicle in the left lane, the 
trooper was forced to travel onto the berm in order to pass plaintiff’s car and apprehend 

the other two speeding vehicles. Defendant maintained that when a patrol trooper is 

“responding to an emergency call, OSP is immune unless Plaintiff can demonstrate that 

[the trooper] engaged in willful or wanton misconduct.” 

{¶3} Plaintiff did not file a response. 

{¶4} In York v. Ohio State Hwy. Patrol (1991), 60 Ohio St.3d 143, 573 N.E.2d 

1063, the Ohio Supreme Court determined that if an officer-employee of the State 

Highway Patrol inflicts injury upon an individual while the officer is operating a motor 

vehicle during an emergency, and that injury is the result of the officer's negligence, the 

agency is immune from liability pursuant to R.C. 2744.02. 

{¶5} Later in Baum v. Ohio State Hwy. Patrol, 72 Ohio St.3d 469, 1995-Ohio155, 650 N.E. 2d 1347, the Ohio Supreme Court recognized that, R.C. Chapter 2744, 

which is applicable only to political subdivisions, is not applicable to the State Highway 

Patrol as an agency of the state of Ohio. The Court noted that the “state” as defined in 

both R.C. 2743.01(A) and 2744.01(H) does not include “political subdivisions.” 

Nevertheless, the Ohio Supreme Court extended the immunity provided to county, city, 

and township police officers by R.C. 2744.02(B)(1)(a) to the Ohio State Highway 

Patrol.1

 

{¶6} Thus, the Ohio Supreme Court held in Baum that in the absence of willful 

or wanton misconduct, the State Highway Patrol is immune from liability for injuries 

caused by a patrol officer in the operation of his vehicle while responding to an 

emergency call. 

{¶7} In the instant case, it is undisputed that Trooper Wright was operating a 

motor vehicle within the course and scope of his employment at the time that plaintiff’s 

property damage occurred. In addition, the trier of facts finds that Trooper Wright was 

responding to an emergency call. See Smith v. McBride, Franklin App. No. 09AP-571, 

2010-Ohio-1222 (“a call to duty involves a situation to which a response by a peace 

 1 R.C. 2744.02(B)(1) provides in relevant part 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 

[upon the public roads, highways, or streets] when the employees are engaged within the scope of their 

employment and authority. The following are full defenses to that liability: 

 “(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 
officer is required by the officer's professional obligation. Colbert v. City of Cleveland, 99 

Ohio St.3d 215, 2003-Ohio-3319, syllabus.”) 

{¶8} The Tenth District Court of Appeals has held that wanton and willful 

misconduct can be found when there is evidence of utter disregard for the rights of 

others resulting in serious harm to their health or property. See Blair v. Columbus Div. 

of Fire, Franklin App. No. 10AP-575, 2011-Ohio-3648. Wilful misconduct involves 

intentional or deliberate acts performed “with knowledge or appreciation of the likelihood 

of resulting injury.” Robertson v. Dept. of Public Safety, Franklin App. No. 06AP-1064, 

2007-Ohio-5080, ¶14 quoting Tighe v. Diamond (1948), 149 Ohio St. 520, 527, 37 O.O. 

243, 80 N.E.2d 122. In this matter, Trooper Wright averred that his path was blocked by 

two vehicles traveling side by side and that plaintiff failed to yield the right of way. In 

addition, he stated that when he drove onto the berm to get past plaintiff’s vehicle and 

apprehend the two speeders, he did not see gravel or debris on the berm and he did not 

hear gravel or debris being propelled toward plaintiff’s car. 

{¶9} Upon review of the evidence presented in the file, the trier of facts finds 

that even assuming Trooper Wright acted negligently when he drove around plaintiff’s 

vehicle by accessing the berm, plaintiff failed to prove defendant’s employee acted in a 

reckless manner with utter disregard for the safety of others so as to constitute wilful or 

wanton misconduct. Accordingly, defendant is not liable to plaintiff for the damaged 

window. 

 

constitute willful or wanton misconduct[.]”
Court of Claims of Ohio

The Ohio Judicial Center 

65 South Front Street, Third Floor 

Columbus, OH 43215 

614.387.9800 or 1.800.824.8263 

www.cco.state.oh.us 

ROBERT R. TIMMS 

 Plaintiff 

 v. 

OHIO STATE HIGHWAY PATROL 

 Defendant 

Case No. 2011-09756-AD 

Deputy Clerk Daniel R. Borchert 

ENTRY OF ADMINISTRATIVE DETERMINATION 

 Having considered all the evidence in the claim file and, for the reasons set forth 

in the memorandum decision filed concurrently herewith, judgment is rendered in favor 

of defendant. Court costs are assessed against plaintiff. 

 

 ________________________________ 

 DANIEL R. BORCHERT 

 Deputy Clerk 

Entry cc: 

Robert R. Timms James V. Canepa 

6412 Oakland Forest Drive Chief Legal Counsel 

Meridian, Mississippi 39307 Ohio Department of Public Safety 

 1970 West Broad Street, Suite 531 

 Columbus, Ohio 43223 

SJM/laa 

12/14 
Filed 12/28/11 

Sent to S.C. reporter 5/10/12