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Byrd v. Kirby3/22/2005
{ } Plaintiffs-appellants, Howard L. Byrd, individually and as administrator of the estate of Garnet Byrd, and Heather Byrd, appeal from a judgment of the Franklin County Court of Common Pleas granting summary judgment in favor of defendants-appellees, the City of Columbus and Richard Kirby, formerly an officer with the Columbus Division of Police.
{ } This case arose out of an automobile collision between a police cruiser driven by appellee Kirby and an automobile driven by appellant Howard Byrd, resulting in injuries to Howard Byrd and the death of his wife, Garnet Byrd, and injuries to his daughter, Heather Byrd.
{ } Appellants initiated this matter with a complaint in the Franklin County Court of Common Pleas in 1997, asserting a number of state and federal law claims against the present defendants and additional parties. The matter was dismissed, refiled, and eventually removed to federal court, where the defendants ultimately obtained a decision granting summary judgment on the plaintiffs' federal law claims but declining to exercise supplemental jurisdiction over the state law claims.
{ } Appellants accordingly refiled a complaint in the Franklin County Court of Common Pleas, naming this time only the present appellees as defendants. The complaint generally averred that, during the course and scope of his employment, Kirby drove his police cruiser at high speed through a red light, striking Howard Byrd's vehicle. The first three causes of action assert that due to Kirby's "negligent, willful or wanton conduct," Howard, Garnet, and Heather Byrd suffered personal injuries, and Howard Byrd suffered the destruction of his automobile. The fourth cause of action is a wrongful death action under R.C. 2125.01, asserting that Kirby's "negligent, willful or wanton" conduct was the proximate cause of the death of Garnet Byrd. The fifth cause of action is a loss of consortium claim asserting that as a proximate result of the "wanton and willful conduct" (omitting the term "negligent") of Kirby, Howard Byrd and Heather Byrd have sustained the loss of support, services, society, and companionship of Garnet Byrd. The sixth and seventh causes of action assert that Kirby and the City of Columbus engaged in malicious prosecution of Howard Byrd by instituting a groundless charge of vehicular homicide against him after the death of Garnet Byrd.
{ } Kirby and the city moved for summary judgment on a variety of grounds. The trial court found that Kirby was entitled to personal immunity under R.C. 2744.03(A)(6)(b) because appellants had presented no evidence to controvert appellees' evidence establishing that his actions were not wanton or reckless. The court then found that the city was not liable because under R.C. 2744.02(B)(1)(a), a political subdivision is not liable for injuries caused by a police officer responding to an emergency call unless the actions of the officer constitute willful or wanton misconduct. The court accordingly held that appellees were entitled to summary judgment on the wrongful death, loss of consortium, and personal injury claims.
{ } The trial court also granted summary judgment for appellees on Howard Byrd's claim for malicious prosecution. The court found that appellants had failed to present evidence preserving a genuine issue of material fact on one of the elements of this tort, because Howard Byrd eventually pled no contest to a charge of failure to yield to a public safety vehicle in exchange for dismissal of the charge of negligent vehicular homicide. Because the criminal proceedings were not terminated in Howard Byrd's favor, the court found that an action for malicious criminal prosecution could not be maintained.
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