Killed by a Fleeing Driver: Why Ohio Law Rarely Lets Families Sue the Police

Published June 9, 2020 · Ohio Appeals Courts

On the afternoon of March 27, 2017, Anthony Hufford was pulling out of an apartment complex near North Dixie Drive and Stop Eight Road, just north of Dayton. A stolen pickup truck, fleeing police at about 90 miles per hour, hit his car. He died at the scene.

His family sued the officers and the local governments involved in the chase. On May 29, 2020, the Second District Court of Appeals affirmed summary judgment for every defendant. The decision, Pendry v. Troy Police Dept., 2020-Ohio-3129, is hard to read, but it is an honest picture of Ohio pursuit law, and families deserve to understand it, including where recovery is still possible.

What happened

The facts come from the court's opinion. A Troy police officer heard a dispatch about a stolen truck heading south on I-75 from Piqua. The suspect had reportedly been seen crying and walking in the middle of State Route 36 before taking the truck, and then doing "donuts" in a field and driving erratically. When the officer found the truck on I-75 and tried to stop it with lights and siren, the driver fled at speeds up to about 100 miles per hour.

Officers from Troy, Tipp City, and the Miami County Sheriff's Office joined the pursuit as it entered Montgomery County. The truck left the interstate at Northwoods Boulevard and turned south onto North Dixie Drive, where, according to the opinion, the driver frequently traveled 70 to 90-plus miles per hour, ran red lights, swerved around cars, and at times drove on the wrong side of the road. After the truck sideswiped another vehicle, a Troy supervisor, concerned about increasing congestion, consulted his captain, and the Troy units were ordered to end the chase. They turned off their lights and sirens and left Dixie Drive.

A Tipp City cruiser and a Miami County deputy were still following. A sheriff's lieutenant ordered the deputy to stop, but the deputy did not hear the order over radio static. Moments later, roughly a mile and more than a minute after the Troy officers had pulled off, the truck struck Mr. Hufford's car.

The legal standards

Two different immunity rules applied.

The cities and the county. Under R.C. 2744.02(B)(1), a political subdivision is ordinarily liable when its employee negligently drives a vehicle. But there is a full defense when a police officer is responding to an emergency call and the driving does not amount to "willful or wanton misconduct." Wanton misconduct, as the court explained, means the failure to exercise any care toward people owed a duty, in circumstances where harm is highly probable.

The individual officers. Under R.C. 2744.03(A)(6)(b), a government employee is immune unless the employee acted with malicious purpose, in bad faith, or in a wanton or reckless manner. Recklessness requires a conscious disregard of a known, obvious risk, and the officer must be aware that the conduct will in all probability cause injury.

The controlling Supreme Court of Ohio case is Argabrite v. Neer, 149 Ohio St.3d 349, 2016-Ohio-8374, which I wrote about in a 2017 post on Argabrite. Argabrite helped injured people in one respect: it rejected an older rule that pursuing officers could almost never be the legal cause of a crash, and it held that officers lose immunity if they act recklessly. But it also set a demanding standard. The Court said that "the danger of a high-speed chase alone" does not create a jury question, and that "a violation of departmental policy, however, does not equate to per se recklessness." Without evidence that an officer knew the violation would in all probability cause injury, a policy violation shows negligence at most.

What the court decided

The family's police-practices expert testified that the officers violated their departments' pursuit policies: chasing for a property crime, joining with too many units, continuing at extreme speeds into a congested area. Applying Argabrite, the Second District held that even assuming policy violations, there was no evidence any officer knew his conduct would in all probability result in injury.

The court pointed to the officers' use of lights and sirens, slowing at intersections, radio contact with supervisors, the attempt to deploy stop sticks, backing off at times to see whether the suspect would slow down, and the Troy officers' decision to end the pursuit. That showed at least some care, which defeated any claim of wanton misconduct against Troy and Miami County. As to the Troy officers, the court said the timing of their decision to stop might be questioned in hindsight, but was at most negligence. And it held that the deputy who kept following was not reckless as a matter of law. One judge concurred in the judgment only.

A word from someone who has been in the cruiser

I spent 19 years as a Dayton police officer and sergeant. I know what it is like to be behind a car that will not stop, and I know the pressure officers feel to keep a dangerous driver in sight. I also know that pursuits kill innocent people, which is why departments write pursuit policies in the first place.

Ohio law gives officers wide latitude in those moments. Families often feel that a policy written to protect the public should mean something when it is broken. Under Argabrite, a broken policy alone is not enough, and that is why these cases so rarely succeed against the police. Nothing about that outcome reflects on Mr. Hufford or his family, who did everything right.

Where families can still recover

A pursuit death is still a wrongful death caused by someone's wrongful conduct. The question is where the recovery comes from.

• The fleeing driver. The person who stole the truck is fully responsible and has no immunity, but rarely has insurance or assets.
• Your own uninsured motorist coverage. This is often the most important source of recovery. A driver who flees in a stolen vehicle frequently has no applicable liability insurance, and that is exactly the situation uninsured motorist (UM) coverage under R.C. 3937.18 is designed for. Your family's own policy, and in some cases the policy of a relative you live with, may provide coverage for a wrongful-death claim. Our guide chapter on using your own insurance and our page on UM/UIM claims explain how these claims work and the contractual deadlines that can apply.
• The officers and agencies, when the facts are different. Immunity is not absolute, though its rules are technical; I walked through how they apply when a cruiser itself causes a crash in last December's post on McConnell v. Dudley. In a pursuit case, evidence that an officer actually knew a pursuit was almost certain to injure someone, and continued anyway, can overcome immunity. Cruiser video, radio traffic, and dispatch recordings must be obtained quickly to evaluate that question.

What this means for you

• If a family member was hurt or killed by a driver fleeing police, do not assume there is no claim. There may be no claim against the police, but there may be a substantial claim under your own policy.
• Find every auto policy in the household and send prompt notice of a possible UM claim.
• Ask a lawyer to request the cruiser video, radio recordings, and crash reconstruction early, before anyone decides the police question.
• Claims against governments carry immunity defenses and their own deadlines. Our page on claims against the government explains the basics.