Injured by a Police Chase in Dayton? Argabrite v. Neer Changes the Rules, a Little

Published January 17, 2017 · Ohio Supreme Court

Picture a sunny weekday morning on a two-lane road in Washington Township. A car comes at you head-on at pursuit speed, and behind it are police cruisers with their lights on. That is what happened to Pamela Argabrite in July 2011, and three weeks ago the Supreme Court of Ohio finally said what she, and anyone else hurt the same way, has to prove to hold the pursuing officers responsible. The answer is better than the rule Montgomery County courts had been using. It is still a hard road.

What happened on the road

A Miami Township officer spotted a burglary suspect, Andrew Barnhart, pulling into a residential driveway. Barnhart backed into the sergeant's cruiser and sped off through the yard. Two Miami Township officers, Jim Neer and Gregory Stites, followed him with lights and sirens. A Montgomery County sheriff's deputy, Tony Ball, fell in behind them at a distance for about two miles, then pulled aside and let the township officers pass.

At 11:57 a.m., Barnhart's car hit Ms. Argabrite's car head-on. He died. She was seriously injured. She sued the five officers in the Montgomery County Court of Common Pleas, arguing that the way they ran the pursuit cost them their immunity.

The rule the Dayton courts had been using

For a decade, the Second District Court of Appeals, which hears appeals from Montgomery, Greene, Miami, Clark, Champaign and Darke counties, applied a rule from a 2006 Dayton case called Whitfield v. Dayton. Under that rule, a pursuing officer was never the legal cause of a bystander's injuries unless the officer's conduct was "extreme or outrageous." The trial court threw out Ms. Argabrite's case on that basis, and in early 2015 the Second District agreed. I wrote about that appellate decision at the time: Innocent Driver Hurt in a Police Chase Near Dayton: Why the Court Said No.

"Extreme or outrageous" is the language of the intentional-infliction-of-emotional-distress tort. It describes conduct so bad that an ordinary person would exclaim "Outrageous!" For practical purposes, the rule gave officers in this part of Ohio immunity that the legislature never wrote.

What the Supreme Court changed

On December 27, 2016, in Argabrite v. Neer, 149 Ohio St.3d 349, 2016-Ohio-8374, the Supreme Court of Ohio rejected the Whitfield rule. The reason is simple. Ohio's immunity statute for government employees, R.C. 2744.03(A)(6)(b), already sets the standard: an officer loses immunity when his acts or omissions were "with malicious purpose, in bad faith, or in a wanton or reckless manner." The judge-made "extreme or outrageous" test was higher than that, so it handed officers protection the General Assembly had chosen not to give them. The Court wrote that Ohio courts lack the authority to confer immunity based on a different standard than the General Assembly has implemented.

The test in a pursuit case is now the same test that applies to every other government employee: wanton or reckless conduct. "Reckless" means a conscious disregard of a known or obvious risk that is unreasonable and substantially greater than ordinary negligence. "Wanton" means failing to exercise any care at all when there is a great probability that harm will result.

Why Ms. Argabrite still lost

Instead of sending the case back for the lower courts to apply the right test, the Supreme Court looked at the evidence itself and decided that no reasonable juror could find any of the five officers wanton or reckless.

Her experts testified that the officers violated the departments' written pursuit policies. The Court's answer: "A violation of departmental policy, however, does not equate to per se recklessness." Recklessness requires proof that the officer knew his conduct would in all probability result in injury. Without that knowledge, a policy violation is evidence of negligence at most, and negligence is not enough to defeat immunity.

On the specific facts, Deputy Ball had dropped out of the pursuit well before the crash. The deputy chief controlled the chase for three minutes and heard nothing on the radio that called for ending it. Officers Neer and Stites testified that traffic was light, the weather was sunny, their lights and sirens were on, and the suspect slowed at intersections. The Court summed it up bluntly: given officers' statutory duty to arrest fleeing suspects, "the burden necessary to deny immunity to those officers is onerous."

What a pursuit victim has to prove now

So the standard moved from nearly impossible to merely very hard. If you are hurt by a fleeing driver in Dayton or the surrounding counties, the claim against the officers rises or falls on evidence that they knew the chase would probably hurt someone and kept going anyway. That evidence can look like:

• Dispatch and radio recordings showing a supervisor ordered the pursuit terminated and it continued.
• Cruiser video showing speeds, red lights run, and traffic conditions very different from "light and sunny."
• Proof the officers already knew the suspect's identity, so there was no need to chase him through neighborhoods to catch him later.
• A pursuit for a minor offense through a school zone, a crowded intersection, or bad weather.

None of that evidence is handed to you. Dash-camera video is recorded over. Dispatch audio is purged on a schedule. The only way to lock it down is to have a lawyer send preservation demands to every agency involved within days of the crash. I spent nineteen years with the Dayton Police Department, including years as a sergeant, and I know what records a pursuit generates and where to ask for them.

The other paths to recovery

A claim against the officers is rarely the only path, and it is often not the best one.

The fleeing driver. The person who actually hit you is liable for negligence, full stop. The problem is that fleeing drivers are frequently uninsured, which is why your own uninsured and underinsured motorist coverage is usually the most important policy in a pursuit case.

When the cruiser itself hits you. Argabrite was about a suspect's car striking a bystander. The rules are different when the police vehicle is the one that hits you. Under R.C. 2744.02(B)(1), a city, township, or county is liable for its employees' negligent driving, and the "emergency call" defense applies only when the officer's driving did not amount to willful or wanton misconduct. The Supreme Court has also held that your own uninsured-motorist coverage can respond when a cruiser hits you; see Hit by a Police Cruiser? Your Own Uninsured Motorist Coverage May Pay.

The agency's own negligence in other respects. Claims against a political subdivision follow a three-step analysis that I explain on our claims against the government page. A lawyer should walk through every step before anyone concludes a case is hopeless.

What this means for you

If you were hurt by a fleeing driver, do not assume the officers are untouchable and do not assume they are liable. The answer depends on facts that disappear quickly. Get medical care, keep every record, and talk to a lawyer who can send preservation letters before the recordings are gone. In the meantime, the strongest claims are usually against the driver's insurance and your own UM coverage, and those claims do not require proving anything about the police at all.