Baum v. Ohio State Hwy. Patrol - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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OPINIONS OF THE SUPREME COURT OF OHIO
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Baum et al., Appellees, v. Ohio State Highway Patrol et al.,
Appellants.
[Cite as Baum v. Ohio State Hwy. Patrol (1995), Ohio
St.3d .]
Torts -- Negligence -- State Highway Patrol immune from
liability for injuries caused by patrol officer in
operation of his vehicle while responding to an emergency
call, when.
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.
(No. 93-2495 -- Submitted March 7, 1995 -- Decided July
12, 1995.)
Appeal from the Court of Appeals for Franklin County, No.
93AP-68.
On August 3, 1989, sometime before midnight,
fourteen-year-old Doug Stacy and a friend went joyriding in a
car that they took without the owner's consent from the garage
of Stacy's next-door neighbor. With Stacy driving, the pair
proceeded to drive around the town of Milford and the
neighboring town of Loveland until they were spotted by a Miami
Township police officer. The officer turned on the pursuit
lights of his patrol car in an attempt to stop the Stacy
vehicle. Stacy observed the activated pursuit lights, but he
panicked and fled.
The township police officer pursued the Stacy vehicle onto
I-275 westbound. At that point, two Ohio State Highway Patrol
Troopers, each in separate cruisers, picked up the pursuit and
the Miami Township policeman ceased pursuing the Stacy
vehicle. Through radio communications at the Hamilton County
Communications Center, two Hamilton County deputy sheriffs
learned of the chase. On their own volition, and without
communication with the Ohio State Highway Patrol, they
initiated a roadblock bringing traffic to a stop on I-275, a
mile and a half east of the interchange of I-275 and I-74.
The appellee, Steven E. Baum, entered the interstate
highway and eventually came upon the roadblock area, where he

was required to stop his vehicle on the highway. While he
remained stopped, his vehicle was struck from behind by Officer
Blyberg's patrol vehicle.
Appellees, Steven E. and Beverly J. Baum, filed a
complaint in the Ohio Court of Claims against the Ohio State
Highway Patrol. Appellee sought damages from the patrol for
injuries he sustained from the collision. The complaint
alleged that the patrol, through its agent, Officer Blyberg,
acted negligently, wantonly, willfully, and recklessly. There
was evidence presented at trial that Officer Blyberg, as a
back-up vehicle, failed to assume responsibility for radio
communications and followed the lead vehicle too closely,
thereby allowing himself to become too directly involved in the
pursuit.
The Court of Claims entered judgment in favor of the Ohio
State Highway Patrol, finding that the patrol's actions were
not willful or wanton and, therefore, under R.C. 2744.02, the
patrol was immune from liability. In so finding, the Court of
Claims relied on York v. Ohio State Hwy. Patrol (1991), 60 Ohio
St.3d 143, 573 N.E.2d 1063. The court of appeals reversed the
decision and remanded the cause to the Court of Claims, holding
that the patrol could be held liable to appellees under a
negligence standard.
This cause is now before this court pursuant to the
allowance of a motion to certify the record.

Becker, Reed, Tilton & Hastings and Dennis A. Becker, for
appellees.
Betty D. Montgomery, Attorney General, Gregg H. Bachmann
and Catherine M. Cola, Assistant Attorneys General, for
appellants.
Paul L. Cox, urging reversal for amicus curiae, Fraternal
Order of Police of Ohio, Inc.
Schottenstein, Treneff & Williams and John Gilchrist,
urging reversal for amicus curiae, Ohio Association of Chiefs
of Police.

Francis E. Sweeney, Sr., J. The sole issue before this
court is whether the State Highway Patrol is immune from
liability in the absence of wanton or willful misconduct for
injuries caused by a patrol officer in the operation of his
vehicle while responding to an emergency call. For the
following reasons, we find that the State Highway Patrol is
immune from liability in the absence of willful or wanton
misconduct and, accordingly, we reverse the court of appeals'
judgment.
In York v. Ohio State Hwy. Patrol (1991), 60 Ohio St.3d
143, 573 N.E.2d 1063, this 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. However, 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.
Both R.C. 2743.01(A) and 2744.01(H) provide that "state" does
not include "political subdivisions." Thus, while we agree

with the judgment in York, we find that it does not fully or
finally address the State Highway Patrol's liability in the
present case.
This case was brought against the State Highway Patrol, an
agency of the state, pursuant to R.C. Chapter 2743. The Ohio
General Assembly enacted R.C. 2743.02 in 1975 as part of the
Court of Claims Act. R.C. 2743.02(A)(1) reads as follows:
"The state hereby waives its immunity from liability and
consents to be sued, and have its liability determined, in the
court of claims created in this chapter in accordance with the
same rules of law applicable to suits between private parties,
except that the determination of liability is subject to the
limitations set forth in this chapter ***."
In order for plaintiffs to impose liability upon the state
pursuant to R.C. 2743.02, the state must have breached a duty
owed to plaintiffs. Reynolds v. State (1984), 14 Ohio St.3d
68, 72, 14 OBR 506, 510, 471 N.E.2d 776, 780 (Holmes, J.,
dissenting).
In the present case, the appellees seek to impose a
negligence standard of care upon the state as this would be the
applicable standard of care if the suit were brought between
private parties. However, the very fact that the defendant is
the State Highway Patrol, and not a private party, changes the
standard of care as private parties are not afforded the same
rights and duties as patrol troopers. The State Highway
Patrol, unlike private parties, is under a legal duty to pursue
fleeing lawbreakers. See R.C. 5503.02(A). In performing this
duty for the public, the State Highway Patrol is permitted to
take greater risks which would amount to negligence if carried
out by private citizens with no emergency duty to perform. See
R.C. 4511.24. Thus, liability cannot be determined by "the
same rules of law applicable to suits between private
parties." See R.C. 2743.02(A)(1). Furthermore, this action
did not result from the state's breach of a specific duty owed
to plaintiff but, rather, from a duty owed to the public in
general to enforce the laws. Thus, liability under R.C.
Chapter 2743 cannot be imposed since the action did not result
from the breach of a duty owed to the particular plaintiff.
See Sawicki v. Ottawa Hills (1988), 37 Ohio St.3d 222, 525
N.E.2d 468, paragraph two of the syllabus.
In determining whether liability can be imposed upon
patrol troopers on an emergency call, we find it persuasive
that the General Assembly has exempted all county, city and
township police officers on an emergency call from liability
when there is no evidence of willful or wanton misconduct. See
R.C. 2744.02(B)(1)(a). It would be illogical and unfair to
subject state troopers to greater liability than all other
officers in the state performing the same duties in the public
interest. Patrol troopers have been given the same law
enforcement responsibilities and duties as other officers in
the state. State patrol troopers are "law enforcement
officers" as that term is used in R.C. 2901.01(K)(1) and "peace
officers" as that term is used in R.C. 2935.01(B).
Furthermore, patrol troopers, like other officers, are sworn to
enforce the laws of the state of Ohio and have arrest and
search and seizure powers. See, e.g., R.C. 5503.01,
5503.02(A), 5503.02(D)(1), and 5503.02(E)(3). As this case

demonstrates, patrol troopers often work in cooperation with
other officers in the state in pursuing fleeing suspects.
Accordingly, public policy dictates that a trooper responding
to an emergency call be cloaked with the same level of immunity
as every other peace officer who might also be responding to
that call.
Finally, a finding that patrol troopers are immune from
liability in the absence of willful or wanton misconduct also
serves a vital public interest. Patrol troopers have the duty
to preserve the public peace, safety, and welfare. R.C.
5503.01 and 5503.02. Patrol troopers are expected to act
promptly in emergency situations in order to protect the
public. If troopers were held to a higher standard of care
than other officers in pursuit of a suspect, they might
hesitate for fear that the pursuit could result in potential
liability. Thus, the goal of promoting patrol troopers' prompt
action in emergency situations will be furthered by a finding
that the State Highway Patrol is immune from liability. See
Fish v. Coffey (1986), 33 Ohio App.3d 129, 130, 514 N.E.2d 896,
898.
Based on the foregoing, we conclude 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.
The judgment of the court of appeals is reversed and the
judgment of the Court of Claims is reinstated.
Judgment reversed.
Moyer, C.J., Douglas, Wright, Resnick, F.E. Sweeney and
Cook, JJ., concur.
Pfeifer, J., dissents.
Baum v. Ohio State Highway Patrol.
Pfeifer, J., dissenting. Hot pursuit. The high speed
chase. As comfortable to our perception of good law
enforcement as fireworks and parades are on the Fourth of
July. From images of posses on horseback chasing cattle
rustlers to G-men in open 1-1 air motorcars pursuing gangsters,
the chase seems like such an integral part of catching
criminals that the benefits of its widely accepted practice are
seldom questioned.
This should not be so. Unlike the days when criminals
fled on horseback through sparse country, today's high 1-1
speed chases are carried out on crowded public highways in
vehicles that top speeds of one hundred miles per hour. The
danger posed to innocent bystanders and the police involved in
hot pursuit often far outweighs any benefit derived from the
chase.
In this case, the State Highway Patrol troopers risked not
only their own lives in pursuit of two teenage joy riders, but
the lives of the teenagers and hundreds of motorists as well.
And for what? This was not a kidnapping or a hostage held at
knifepoint. The two offenders were not armed robbers,
terrorists or escaped convicts. They were kids in a stolen
car, and their crime did not warrant putting anyone's life in
danger.
The state has set speed limits for the public's safety.
To recklessly exceed those speed limits inherently imperils

anyone in the path of the chase.
Movies and television have glamorized the chase. In fact,
there is nothing glamorous about it. The high 1-1 speed chase
is the deadliest use-of-force action employed in law
enforcement. More people are killed each year by high 1-1
speed chases than by bullets from police weapons. Columbus
Dispatch, August 10, 1993, at 1A.
Understandably, a high 1-1 speed chase can take on a life
of its own. An officer tries to pull over a vehicle, the
vehicle speeds up a little. The officer accelerates to keep up
with the offender, and before long, both are flying down the
road at one hundred fifteen miles per hour.
Despite its long-standing acceptance and the natural
difficulty involved in breaking bad habits, this court should
put the brakes on hot pursuit. At the very least, we should
not be bending over backward to embrace the practice.
R. C. Chapter 2743 and R.C. 4511.24 provide an incentive to
State Highway Patrol troopers to refrain from negligent conduct
during their high 1-1 speed chases. The majority decision
effectively erases this incentive.
To relieve the state and State Highway Patrol troopers
from responsibility gives a tacit stamp of approval for hot
pursuit. There may be some circumstances that warrant a high
speed chase, but only as a last resort, not as a matter of
course. Rather than justifying the practice of high speed
chases and exonerating negligent conduct, our message should be
clear: public safety is of greater import than the thrill of
the chase.
In addition to public policy considerations, the Revised
Code also dictates that we should refrain from judicially
immunizing the negligent conduct of State Highway Patrol
troopers during a high 1-1 speed chase.
Absent from the majority's analysis is any direct
statutory authority supporting its conclusion that State
Highway Patrol troopers are not liable for damages caused by
their negligent operation of motor vehicles during pursuits.
Instead, the majority examines the standard contained in R.C.
Chapter 2744, which excuses municipal, township and county law
enforcement officials from liability resulting from the
operation of their motor vehicles in an emergency unless the
officials' conduct is willful or wanton. The majority then
examines the portion of the Revised Code dedicated to the
liability of state officials such as Highway Patrol troopers,
R.C. Chapter 2743, which contains no exception to liability as
R.C. Chapter 2744 does. The majority creates an exception to
the state's waiver of sovereign immunity and holds State
Highway Patrol troopers to be liable for the improper operation
of their motor vehicles only when they do so in a willful or
wanton manner.
The majority cites R.C. 4511.24 -- a statute that relieves
emergency vehicles from the obligation to follow speed limits
-- when it states that the "State Highway Patrol is permitted
to take greater risks which would amount to negligence if
carried out by private citizens with no emergency duty to
perform." This conclusion completely ignores the disclaimer in
R.C. 4511.24 that provides:
"This section does not relieve the driver of an emergency

vehicle or public safety vehicle from the duty to drive with
due regard for the safety of all persons using the street or
highway."
R.C. 4511.24 is intended to discharge emergency and safety
vehicles from claims rooted in per se negligence. The statute
does not immunize State Highway Patrol troopers when they
negligently cause injury to the innocent.
The majority contends that the statutory negligence
standard applicable to State Highway Patrol troopers is
logically inconsistent with the statutory willful-and-wanton
standard applicable to municipal, township and county
officers. I disagree. The individual being chased by a
municipal, township or county officer is more likely to be a
dangerous criminal that may merit vigorous pursuit. Thus, the
General Assembly has provided local law enforcement officials
with more deference.
In this case, there is sufficient evidence that the State
Highway Patrol troopers acted negligently. The State Highway
Patrol's own assessment of Trooper Blyberg's conduct concluded
that, during the high speed chase that traveled as fast as one
hundred fifteen miles per hour, Blyberg "failed to maintain a
safe distance" behind Trooper McKinney's lead car. The
internal report went on to conclude that "[h]is actions were
not within Patrol Policy, Procedures, Rules and Regulations,
including but not limited to 00-9-200.06-01, Motor Vehicle
Pursuits."
Statutes and statistics dictate that State Highway Patrol
is liable when its troopers' negligently conducted high 1-1
speed chases result in injury. Accordingly, I respectfully
dissent.