When Police Let a Drunk Driver Go: Ohio Supreme Court Limits the 'Public Duty' Defense

Published February 17, 2010 · Ohio Supreme Court

Picture a family that has just buried a daughter killed by a drunk driver, and then learns something worse: the driver had been arrested for drunk driving two days earlier, released, and allowed to pick up his car from the police impound lot. For years, Ohio law gave officers in that situation a ready answer to any lawsuit. Their duty, the argument went, ran to the public at large, not to any particular victim, so no individual family could sue.

On January 28, 2010, the Supreme Court of Ohio took that defense away in cases involving wanton or reckless conduct by government employees. The decision is Estate of Graves v. Circleville, 124 Ohio St.3d 339, 2010-Ohio-168, and it matters to any Ohio family hurt by the carelessness of a police officer, dispatcher, or other public employee.

What happened in Circleville

The facts come from the Court's opinion. On July 4, 2003, a Circleville police officer arrested Cornelius Copley for driving under the influence and driving under suspension. Copley was released from jail the next afternoon. Later that day he returned to the police station for his vehicle, and a dispatcher, finding no "hold" noted on the tow log, authorized its release. The next morning, Copley drove drunk again and collided with a car driven by Jillian Graves. Both of them died.

Graves's estate sued the officers and the dispatcher individually. It alleged that two Ohio statutes required Copley's vehicle to stay impounded because of his suspended license and his prior drunk-driving record, that the officers knew Copley was a repeat drunk driver, and that releasing the car to him was wanton and reckless.

The city of Circleville itself had already been dismissed from the case on immunity grounds. The question that reached the Supreme Court was whether the individual employees could hide behind the "public-duty rule."

The public-duty rule, and why it mattered

The public-duty rule comes from a 1988 Supreme Court case, Sawicki v. Ottawa Hills. As the Graves Court described it, the rule says that when a city performs a function the law imposes on it, its duty runs only to the general public. An individual who is hurt when that duty is breached cannot sue unless a "special duty" to that person existed, which requires things like a specific promise by the city, direct contact with the victim, and the victim's reliance on the promise.

Applied to the Graves family, the rule would have meant that the officers' obligation to keep a recidivist drunk driver's car impounded was owed to everyone and therefore to no one. The lawsuit would have ended before a jury ever heard it.

What the Supreme Court held

The Court rejected that result. Its syllabus holds that the public-duty rule "is not applicable in civil actions brought against employees of political subdivisions for wanton or reckless conduct."

Justice O'Connor's majority opinion gave two main reasons. First, Sawicki was decided in a narrow window in the 1980s when Ohio courts had abolished the old sovereign immunity doctrine and the legislature had not yet replaced it. The public-duty rule filled that gap. The gap no longer exists: Ohio's Political Subdivision Tort Liability Act, R.C. Chapter 2744, now gives cities and their employees broad statutory immunity, with specific exceptions.

Second, one of those exceptions is written right into the statute. Under R.C. 2744.03(A)(6)(b), a government employee loses immunity when his acts or omissions were "with malicious purpose, in bad faith, or in a wanton or reckless manner." The Court reasoned that letting a judge-made doctrine block a lawsuit the General Assembly expressly allowed would render that exception meaningless.

The Court was careful about what it did not decide. It expressed no opinion on whether the officers actually owed Graves a duty under the impound statutes or whether their conduct was in fact wanton or reckless. Those questions go back to the trial court. The family still has to prove its case, but it now gets the chance.

Why this decision matters to injured Ohioans

For most of my career before law practice, I was a Dayton police officer and sergeant. I know how the system is supposed to work when someone is arrested for drunk driving, and I know how it fails when a hold is not entered, a tow log is not checked, or a dispatcher releases a car that should have stayed on the lot. Officers are human, and most errors are honest ones. But when a department ignores clear legal requirements and a known danger, and someone dies, Graves says the people responsible cannot simply point to the "public" and walk away.

Three practical points follow from the decision.

The bar is still high. Ordinary negligence by a police officer is not enough. The claim must show wanton or reckless conduct, which generally means a conscious disregard of a known and obvious risk. Building that proof requires records: arrest reports, tow logs, impound policies, dispatch recordings, and the driver's prior history. These records can be lost or overwritten; a preservation request should go out early.

The city and the employee are different defendants. Graves concerns claims against individual employees. The city of Circleville was found immune earlier in the same case because it was performing a governmental function. Claims against the government itself follow a separate analysis under R.C. Chapter 2744, which we explain on our page about claims against the government in Ohio.

Other sources of recovery still matter. A claim against a public employee rarely stands alone. The drunk driver is liable, his insurer may be liable, the bar that overserved him may be liable, and the victim's own uninsured or underinsured motorist coverage may apply. We wrote recently about why UM/UIM coverage is so important; a drunk driver with a suspended license is exactly the kind of defendant who often has no insurance.

What this means for you

If you lost a family member, or were seriously hurt, in a crash caused by a drunk driver whom police had just stopped, arrested, or released, you may have a claim that did not exist in practice before this decision. The claim is against the individual officers or employees whose conduct was reckless, and it runs alongside the wrongful death or injury claim against the driver.

Claims involving government defendants carry their own deadlines and procedural requirements, and the evidence needed to show recklessness is held by the very department you would be suing. That is why early contact with a lawyer matters more in these cases than almost any other.