Innocent Driver Hurt in a Police Chase Near Dayton: Why the Court Said No (Argabrite v. Neer)

Published February 11, 2015 · Ohio Appeals Courts

Just before noon on July 11, 2011, Pamela Argabrite was driving on State Route 741 in Washington Township, doing nothing wrong, when a car coming the other way crossed into her lane and hit her head-on. The driver was Andrew Barnhart, a burglary suspect who had been fleeing Miami Township police for almost six miles and almost seven minutes. He died in the crash. Ms. Argabrite was seriously injured.

She sued the five officers involved in the pursuit. On January 16, 2015, the Second District Court of Appeals, which sits in Dayton and decides appeals from Montgomery County, ruled 2-1 that her case could not go to a jury. The decision is Argabrite v. Neer, 2015-Ohio-125 (2d Dist.). I spent nineteen years as a Dayton police officer and sergeant, and I want to explain this decision honestly, because it affects anyone in this area who is ever hurt by a fleeing driver.

What happened on the road

The officers' own testimony, which the court accepted for purposes of the ruling, describes the chase. A Miami Township sergeant found the suspect's white Chevy Caprice in a driveway on Mardell Drive. The driver backed into the sergeant's cruiser, drove into a brick garage, backed into the cruiser again, tore off a corner of the garage, and escaped through several back yards. Officers Jim Neer and Gregory Stites gave chase with lights and sirens. The suspect ran red lights at Lyons Road and at SR 741, driving into opposing lanes to get around traffic. Officer Neer testified that after passing a sheriff's deputy on Spring Valley Pike he accelerated to between 60 and 80 miles per hour to catch up. Officer Stites said he never exceeded 70 on SR 741, where the limit is 55.

Miami Township's own pursuit policy required officers to terminate a chase when the risk to the public outweighed the risk of letting the suspect go, when the suspect's identity was known, or when the suspect drove into oncoming traffic. Officer Stites knew who the driver was early in the pursuit because the same car had fled another officer three months earlier. Ms. Argabrite's two police-practices experts concluded the officers intentionally disregarded their own policies.

The trial judge found that the township officers' conduct was reckless. He still granted summary judgment against Ms. Argabrite, and the court of appeals affirmed.

The "no proximate cause" rule

The reason is a rule that Ohio appellate courts adopted in the early 1990s and that the Second District has followed since at least 2006. In plain terms: when police chase a fleeing driver and the fleeing driver injures an innocent third party, the officers' pursuit is treated as not being the legal cause of the injury unless the officers' conduct was "extreme or outrageous." The court's description of that standard, borrowed from Ohio Supreme Court cases on intentional infliction of emotional distress, is conduct so extreme that an ordinary person hearing the facts would exclaim "Outrageous!" The court acknowledged, quoting its own earlier decision, that this is "an exceptionally difficult standard to meet."

Applying it, the majority held that a pursuit of under six miles, in clear weather and light traffic, at speeds that peaked around 60 to 80 miles per hour, was not extreme or outrageous even if it violated department policy. Violating a pursuit policy, the court said, shows negligence at best unless the officer knew the violation would probably cause injury. Expert affidavits calling the conduct "outrageous" were legal conclusions, not facts. And because proximate cause was missing, the court did not need to decide whether the officers were immune at all. The court declined Ms. Argabrite's invitation to reconsider the rule, noting that no Ohio court had questioned it since 2006.

The dissent

Presiding Judge Froelich dissented, and his reasoning deserves attention. Ohio's immunity statute, R.C. 2744.03(A)(6)(b), says a government employee is immune unless the employee acted "with malicious purpose, in bad faith, or in a wanton or reckless manner." The General Assembly chose "reckless" as the line. The "no proximate cause" rule, Judge Froelich wrote, raises that line to "extreme or outrageous" for one category of defendants, police officers in pursuits, which the legislature never did. He noted that the legislature knows how to write special rules for emergency driving, because R.C. 2744.02(B)(1)(a) gives cities a defense for police driving on emergency calls unless the driving was willful or wanton, and it wrote no comparable exception for pursuits. In his view, the policy question of how much leeway pursuing officers deserve "has been decided by the legislature when it only required 'reckless' conduct."

The trial judge, Judge Brogan, had made the same point in his summary-judgment decision and urged the appellate court to abandon the rule. Two judges of the Second District were not persuaded. The split, and the fact that the trial court found recklessness yet entered judgment for the officers, make this a decision the Ohio Supreme Court may eventually be asked to review. As of today, though, it is the law in Montgomery County.

Why this matters for Dayton-area crash victims

Police pursuits are not rare here. Miami Township, Washington Township, the Sheriff's Office, Dayton, Kettering, and the smaller departments all run them, and the cars being chased end up on the same roads you drive every day. The person most likely to be hurt is not the suspect or the officer. It is the driver coming the other way.

Argabrite means that, for now, that driver's claim against the pursuing officers and their departments will almost always fail in this district, no matter how badly the chase was run, unless the facts are truly shocking. I have written before about how hard the reckless standard already is in emergency-vehicle cases, in Fire Truck Crash Case Redefines 'Reckless'. This decision sets the bar higher still for chases.

The paths that remain

This is a bad decision for injured people, but it does not leave a chase victim with nothing. It changes where the recovery comes from.

The fleeing driver. The suspect who crosses the center line is liable, with no immunity. If he survives, his auto liability policy responds. If he dies, as the driver did here, the claim runs against his estate and his insurer. Fleeing drivers are often uninsured or underinsured, which leads to the next point.

Your own uninsured and underinsured motorist coverage. If the fleeing driver has no insurance or too little, your own UM/UIM coverage is the primary source of compensation for serious injuries. Our UM/UIM practice exists for exactly this situation. And as the Ohio Supreme Court held in Marusa, which I covered in Hit by a Police Cruiser?, some policies define an uninsured vehicle to include one driven by an immune government employee. Policy language matters, and it should be read by a lawyer.

Direct contact by a cruiser. The "no proximate cause" rule applies when the fleeing driver, not the police car, causes the injury. If a cruiser itself strikes you, the analysis is different, and the city can be liable for negligent operation outside of emergency calls or for willful or wanton driving during them. Those claims against the government have their own notice and immunity rules.

Truly extreme conduct. The rule is not absolute. A pursuit through a school zone at dismissal, a chase continued after supervisors ordered it stopped, or a pursuit of a known suspect for a minor offense at triple-digit speeds through a crowded area may clear the bar. Every chase is different, and the facts come from dispatch recordings, cruiser video, pursuit logs, and department policies that must be requested quickly.

What this means for you

If you or a family member was hurt or killed in a crash caused by a fleeing driver, do not assume the police are the only defendant, and do not assume the case is over because of Argabrite. The fleeing driver's coverage, your own policy, and the specific facts of the pursuit all have to be examined, and the records that prove what happened are kept by the agencies involved, which have no obligation to keep them forever. Families who have lost someone can also read about our wrongful death practice.