COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59791 LUVENIA GOULD : : : JOURNAL ENTRY Plaintiff-Appellant : : : and -vs- : : OPINION : DARLENE BRITTON, ET AL. : : Defendant-Appellees : : DATE OF ANNOUNCEMENT JANUARY 30, 1990 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. 142148 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLANT: FOR DEFENDANT-APPELLEES: James E. Burns Craig S. Miller Rubin Guttman Co., L.P.A. Director of Law 55 Public Square, Suite 2130 By: David S. Hoffman Cleveland, Ohio 44113 Assistant Director of Law City of Cleveland Room 106 - City Hall 601 Lakeside Avenue Cleveland, Ohio 44114 - 1 - ANN McMANAMON, J.: Luvenia Gould sued then city of Cleveland Police Officer Darlene Britton, the city of Cleveland and its Safety Department for injuries sustained in an automobile accident with Britton. In the first count of her complaint, Gould alleged Britton "negligently, willfully, wantonly and/or recklessly" operated her police vehicle while on police business and collided with the rear fender of Gould's auto. The second count of the complaint alleged the city negligently entrusted Britton with the police vehicle. The city filed a motion for summary judgment claiming immunity pursuant to R.C. 2744 et seq. The court granted the motion and entered judgment for the defendants. With one assignment of error,/1\ Gould timely appeals the court ruling as to her negligent entrustment claim only. A review of this issue compels affirmance. A motion for summary judgment should be granted only if there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Civ. R. 56(C). In reviewing a summary judgment motion, the facts must be construed in a light most favorable to the non-moving party and judgment should be entered only if reasonable minds could reach but one /1\ See Appendix. - 2 - conclusion. Morris v. Ohio Casualty Ins. Co. (1988), 35 Ohio St. 3d 45; Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St. 2d 64. The record demonstrates that, on September 10, 1986, Officer Britton was responding in her police vehicle to the report of a shooting suspect's location. Britton, proceeding west on Buckeye Road, travelled into the eastbound lane to avoid westbound traffic in front of her. While in the eastbound lane, Britton's auto come into contact with the rear fender of Gould's vehicle. Gould, who was driving westbond, averred she was stopped in preparation for a left turn into the driveway of a fast food restaurant. In her deposition Gould disputed the police officer's claim that the lights and siren of the police car were activated at the time of the collision. In support of her negligent entrustment claim, Gould elicited deposition testimony from Britton that she had been involved in two previous automobile accidents, at least one during an emergency response. The officer admitted unfamiliarity with a police order describing emergency response driving procedures, and acknowledged she had felony convictions for drug abuse and possession of criminal tools. Gould argues that, in light of this evidence, the trial court erred by granting summary judgment on the negligent entrustment claim. The city counters that the sovereign immunity provisions of R.C. 2744 et seq. bar Gould's action. We agree with the city's position. - 3 - R.C. 2744.02 states in relevant part: "(A)(1) *** Except as provided in division (B) of this section, a political subdivision is not liable in damages in a civil action for injury, death, or loss to persons or property allegedly caused by any act or omission of the political subdivision or any employee of the political subdivision in connection with a governmental or proprietary function." This subsection provides "*** a blanket immunity for municipalities in the performance of governmental functions," subject to specifically delineated exceptions. Rahn v. Whitehall (1989), 62 Ohio App. 3d 62, 66. Governmental functions include the provision of police services. R.C. 2744.01 (C)(2)(a). See, also, Haverlack v. Portage Homes, Inc. (1982), 2 Ohio St. 3d 26; 18 McQuillin, Municipal Corporations (3d Ed. 1984), 336 Section 53.51. The statutory exceptions to immunity outlined in R.C. 2744.02(B) do not provide for a cause of action based upon negligent entrustment of a police automobile in the furtherance of providing police services. We find the court's reasoning in Reynolds v. Oakwood (1987), 38 Ohio App. 3d 125 unpersuasive and decline to follow the Montgomery County Court of Appeals in recognizing such a cause of action. We note that R.C. 2744.02(B) permits a lawsuit based upon the negligent operation of a police vehicle; however, when such a vehicle is operated in response to an emergency call and the operation is neither willful nor wanton, liability is barred. R.C. 2744.02(B)(1)(a). Although Gould based the first count of her complaint upon a claim that Britton operated her vehicle in a - 4 - willful and wanton manner, she did not challenge the entry of summary judgment on this count. Since R.C. 2744.02(A) immunizes a municipality from liability arising from the provision of police protection, and Gould's negligent entrustment claim does not fall within any of the statutory exceptions to this rule, we find the trial court properly entered summary judgment on the second count of her complaint. Cf. McCloud v. Nimmer (February 7, 1991), Cuyahoga App. No. 58043, unreported (municipality immune from lawsuit alleging city negligently trained police officer in use of firearm). Accordingly, Gould's assignment of error is overruled and the judgment of the trial court is affirmed. Judgment affirmed. - 5 - It is ordered that appellees recover of appellant their costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DAVID T. MATIA, C.J., AND JAMES D. SWEENEY, J., CONCUR. JUDGE ANN McMANAMON N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. - 6 - APPENDIX Appellant's assignment of error: I "The court erred in granting defendants' motion for summary judgment because there was a genuine issue of material fact whether the City of Cleveland was negligent in its training and supervision of Officer Darlene Britton when there was evidence that she had been involved in prior motor vehicle accidents while on duty, was not familiar with the department policy governing emergency and pursuit driving, and a reviewing officer determined that the accident in question was preventable."