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Bill would lessen immunity for first responders who damage property

Special to the Legal News

Published: February 13, 2018

The fine tuning of a section of state law that addresses Ohio municipalities' sovereign immunity may result in improved outcomes for Ohio motorists and bystanders injured or having suffered property damage by first responders' cruisers, fire engines and ambulances operated in the line of duty.

As long as those emergency vehicles are traveling with lights and sirens activated, a municipality would be eligible to apply the time-honored tenet of sovereign immunity, Rep. Michael Henne, R-Clayton, said of the bill he sponsored.

"The doctrine of Sovereign Immunity in England was based on the idea that the 'king can do no wrong,'" Henne said. "This doctrine eventually came to the United States and was first applied in Ohio in 1840.

"Sovereign immunity has undergone a number of legislative revisions and interpretations by the courts since then, including the extension of sovereign immunity to municipal corporations as subdivisions of the state."

In short, House Bill 419 would modify the defense an Ohio township, county or municipality may employ against a liability claim resulting from the negligent operation of a police, fire, or emergency medical service motor vehicle such that the defense apply only if the vehicle's lights and sirens were simultaneously activated during operation.

Henne said differing theories, interpretations and rulings have made this area of civil law confusing.

"Under current Ohio law, innocent bystanders have no recourse for property damage, wage loss, uncovered medical expense, funeral expense and other injuries when a carelessly, or even recklessly operated emergency vehicle strikes their car or hits them as a pedestrian if the operator is responding to an emergency," said Ohio Association for Justice Director of Government Affairs John Van Doorn during proponent testimony last week. "The Ohio Supreme Court broadly defined an emergency as any situation involving an officer's professional obligation in Colbert v. City of Cleveland, 99 Ohio St. 3d 215.

"In the Colbert decision, two officers responding to a crime that was not in progress failed to activate their lights or siren. Their police car struck an innocent motorist who had the right of way at an intersection. Because this was found to be an emergency, the Supreme Court said the city of Cleveland was not responsible to the innocent bystander for the officers' carelessness."

Van Doorn said HB 419 would remedy such situations.

"Every police department manual I have found provides for the use of lights and sirens in responding to an emergency," Henne said. "There is some logic to providing some immunity when the police, fire or EMS are providing emergency services, but it also makes sense to alert the public if they are operating in this heightened state.

"HB 419 does not prohibit emergency responders from operating without lights and sirens. Instead, the municipal corporation will not be able to claim sovereign immunity if they do."

House Civil Justice Committee members also considered testimony from Dayton-area resident Karen Clark, who recounted an instance in which her car was struck by an off-duty police officer driving an unmarked car.

"An older model, black Cadillac hit the back of my Toyota Avalon," Clark said of the August incident. "No lights or sirens were activated.

"A man in jeans and tee shirt came to the door of my car to check on my welfare. He said he was distracted and that he was a Dayton city undercover policeman."

Clark said she asked for the officer's identification twice, but he never obliged. Eventually, a police supervisor responded to the accident location and confirmed the man was a police officer.

"Since he was driving a car used by the police I had to use my insurance to have the car fixed," Clark continued. "The car was totaled. It was necessary that I pay the deductible.

"I was obeying the law, was hit by a policeman and I must incur the expense."

Three fellow House members have cosponsored the bill, which had not been scheduled a third hearing at time of publication.

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