Court: Avon, Westlake and cops immune in 2014 crash lawsuit

AKRON — The 9th District Court of Appeals ruled in favor of the cities of Avon and Westlake and six police officers who were sued by victims of a 2014 traffic crash that after a high-speed pursuit of a stolen car. Bethany Anderson, Jon Masterson, Danie Bush, Kelly Deutschendorf, John Comer, Edmund Leece and William Winter sued the cities and the five officers in Lorain County Common Pleas Court in March 2018. A year later, Judge Chris Cook ruled in favor of the cities and their police officers, finding that they were entitled to immunity, and entered summary judgment in their favor. The plaintiffs appealed the ruling, arguing that "questions of material fact" prevented Cook and the court from finding that the cities and police officers were immune from the lawsuit. The suit resulted from a police chase involving a stolen Ford F-150 that was being chased by Avon and Westlake police when it crashed into the Dover Gardens Tavern on Detroit Road in Westlake in October 2014. Going 75 mph in a 35 mph zone, the truck hit spike strips that Westlake police put down at Detroit and Cahoon roads before running off the road and hitting the business. A dozen people inside, along with the driver of the truck, were injured. Injuries ranged from minor to serious among patrons and employees alike, according to media reports at the time. The driver of the truck, Brandon Pawlak of Cleveland, was later convicted on 13 counts of aggravated robbery and 13 counts of aggravated vehicular assault, as well as charges of failure to comply, felony theft and breaking and entering, in Cuyahoga County Common Pleas Court. He was sentenced to 35½ years in prison in August 2015. Now 33, his earliest release date is May 24, 2050, when he will be 72 years old, according to the Ohio Department of Rehabilitation and Correction. The incident Shortly before 9 p.m. Oct. 23, 2014, Avon police Officer Pat Neuhoff saw a white Ford pickup truck — reportedly stolen from the Sweetbriar Golf Club in Avon Lake minutes earlier — and began chasing it on Jaycox Road. He and other Avon officers were aware that a number of home burglaries had recently taken place in Avon Lake, some involving stolen vehicles, according to appeals court documents. Avon Officer Andy Kehl joined the chase on Jaycox Road. Neuhoff later testified the truck was being driven in an "erratic" way, passing other cars and crossing the double-yellow line. Pawlak nearly hit another car in the intersection of Jaycox and Detroit roads, and officers slowed down to avoid a collision. Pawlak drove off-road and through a parking lot, as the chase went from 50 mph to 80 mph on Detroit Road. Pawlak ran red lights and hit some orange barrels in a construction zone. The senior Avon officer in charge that night, Sgt. Robert Olds, later testified he didn't call off the pursuit because traffic was light and the weather was good. "The suspect had turned off his lights, and now we have an obligation, really, to make sure that somebody doesn't get hit, an oncoming car," Olds testified later, according to court documents. The chase was later joined by Westlake officers Mark Arcuri and Nathan Fox, who had been at the station when dispatchers informed them of the chase. They arrived at the Dover Gardens Tavern in less than three minutes, and Arcuri put down stop sticks, used to puncture a vehicle's tires. Lt. William Eschenfelder, the officer in charge in Westlake, head of the department's Accident Investigation Unit and the accident reconstructionist for the crash, later testified that he didn't think the stop sticks worked on the truck's tires. The truck still swerved off the road, sliding sideways into the tavern at between 74 and 79 mph, according to Eschenfelder's report. Appeals decision The officers involved later testified that public safety was their primary concern. Officers were entitled to immunity if their actions "show they had no knowledge or reason to know of facts that would lead a reasonable person to believe that their conduct created an unnecessary risk of physical harm," according to the appeals court. There is a high standard for showing reckless conduct, Judge Thomas Teodosio wrote in the decision, which was joined by Judge Donna Carr. The plaintiffs argued that Avon officers acted recklessly in failing to call off the high-speed pursuit of the stolen truck; that the nighttime pursuit continued on a heavily traveled road, ignoring traffic safety as it wound through heavily commercial and residential areas; and that officers should have relied on "more typical police work" as an alternative. The lawsuit also alleged that Westlake officers were reckless by getting involved in the pursuit, setting up a roadblock with Officer Fox's car and using stop sticks in violation of departmental policies. The appeals court noted that the Ohio Supreme Court has ruled that even if a police department's policies are violated, "it does not equate to per se recklessness." The appeals court found that the plaintiffs failed to argue that "the individual officers acted with malicious purpose, in bad faith, or in a wanton manner" and also that the cities of Avon and Westlake were entitled to have the suit against them dismissed. "The complaint repeatedly and specifically describes the alleged conduct of the officers only as 'reckless' and/or 'willful,' without any allegations, either direct or indirect, that they acted with a malicious purpose, in bad faith, or in a wanton manner," the appeals court found, and the plaintiffs "were therefore barred from raising … allegations that the officers acted with malicious purpose, in bad faith, or in a wanton manner." Further, the judges found "no evidence indicating that any of the law enforcement officers engaged in willful misconduct while operating their cruisers," and that Avon officers were attempting to stop a suspected felon, Teodosio wrote, while Westlake officers responded "out of an obligation as officers to help in any way possible, and that the safety of the public" was their "top priority" or "primary concern." Judge Jennifer Hensal concurred in part but also wrote a dissent in which she ruled that Officer Arcuri should not be entitled to immunity. Hensal questioned if Arcuri was entitled to a ruling in his favor, as "there is a genuine issue whether his conduct was reckless," and wrote that there was evidence that Arcuri "violated multiple departmental policies while responding to the situation, including his department's guidelines regarding stop stick deployment." Hensal wrote that when the facts of the case were viewed in a light most favorable to the plaintiffs, "reasonable minds could differ as to whether Officer Arcuri's actions amounted to a conscious disregard of or indifference to a known or obvious risk of harm to another that was unreasonable under the circumstances and was substantially greater than negligent conduct." Contact Dave O'Brien at (440) 329-7129 or dobrien@chroniclet.com. Follow him @daveobrienCT on Twitter.