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In the Supreme Court of Ohio

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In the Supreme Court of Ohio IN THE SUPREME COURT OF OHIO WILLIAM R. GLENN, INDIVIDUALLY AND ,_, Q ,, As EXECUTOR OF THE ESTATE OF it. ‘“ P? : Supreme Court Case No.1 Q 1 ELVYRA T. GLENN (DECEASED) . On Appeal from the Franklin County Appellee, : Court of Appeals, Tenth District ' (Case No. 16AP-15) CITY or COLUMBUS, E.TAL., Appellant. MEMORANDUM IN SUTPORT 01-‘ JURISDICTION OF APPELLANT PAUL SHERIDAN Robert S. Roby (0065962) Michael R. Halloran (0089093) Lisa C. Haase (0063403) Janet Hill Arbogast (0061955) Bruce A. Curry (0052401) CITY OF COLUMBUS, DEPARTMENT OF LAW CURRY, ROBY «S: MULVEY CO., LLC RICHARD C. PFEIFFER, JR., CITY ATTORNEY 30 Northwoods, Suite 300 77 North Front Street, Fourth Floor Columbus, Ohio 43235 Columbus, Ohio 43215 614.430.8885 X102 Ph: 614.645.7385 614.430.8889 (fax) Fax: 614.724.6503 rroby@crmlaws.com mrha1lora.n@columbus.gov 1haase@crmlaws.com jrhillarbogast@columbus.gov bcurry@crmlaws.com Attorneys for Plaintzff—Appellee William R. Atiomeysfar Defendant City of Columbus and Glenn Defendant—Appellant Paul Sheridan ~~NOV 01 2036 ~~ CLERK OF COURT ~ SUPREME COURT OF ~~ OHIO ~ TABLE OF CONTENTS I. Introduction ....................................................................................................................... .. 1 II. Explanation Why this Case is of Public and Great General Interest .......... .. 1 III. Statement of the Case and the Facts .......................................................... .. .5 IV. Arguments in Support of Propositions of Law . .. 7 Proposition of Law 1: Negligent conduct and reckless conduct describe distinct degrees of care. ................................................................................. .. 7 Proposition of Law 2: The mental state of the actor in relation to the risk required to show reckless conduct is greater than the mental state required to show negligent conduct ..................................................... .. 9 Proposition of Law 3: When determining whether or not the conduct of an emergency vehicle driver was reckless during an emergency response, the conduct must be analyzed in light of the standards of conduct for emergency responses set forth by the Revised Code ................................................................................................................ .. 11 V. Conclusion ....................................................................................................................... .. 13 CERTIFICATE OF SERVICE ...................................................................................... .. unnumbered APPENDIX ................................................................................................................... ..Appx. Page EXHIBIT 1: Decision of the Franklin County Court of Appeals (Sept. 27, 2016) ..................................................................................... .. EXHIBIT 2: Iudgment Entry of the Franklin County Court of Appeals (Sept. 28, 2016) .............................................................................................................. .. 17 EXHIBIT 3: Decision and Judgment Entry of the Franklin County Court of Common Pleas (Dec. 14, 2015) . .. 20 I. Introduction This case arises from an accident between a Columbus Division of Fire engine and a vehicle during a response to a fire alarm. The issue before this Court is the distinction between negligent conduct and reckless conduct. This case is of public and great general interest because the distinction between negligent conduct and reckless conduct directly impacts the immunity and liability of political subdivisions and their employees. II. Explanation Why this Case is of Public and Great General Interest The distinction between reckless and negligent conduct is a question of public and great general interest. This Court held that willful, wanton, and reckless are distinct degrees of care. Anderson 12. City of Mussillon, 134 Ohio St.3d 380, 2012-Ohio—5711, 983 N.E.2d 266, paragraph 1 of the syllabus. Resolution of the issue presented here extends from Anderson. The distinction is critical to analyzing political subdivision immunity under RC. Chapter 2744. Most apparent from this case, the distinction concerns political subdivision employee immunity and liability, the preservation of the fiscal of integrity political subdivisions, and the promotion of judicial economy in the resolution of governmental immunity cases. It also concerns state employee liability. Furthermore, the distinction extends beyond governmental tort issues into the areas of liability, damages, and indemnification between private parties in various industries. Due to its impact on various public and private litigants, the distinction between negligent and reckless conduct is of public and great general interest. The purpose of R.C. Chapter 2744 is to shield ’’political subdivisions from tort liability in order to preserve their fiscal integrity.” Riscatti 1). Prime Props. Ltd. P ’ship_, 137 Ohio St.3d 123, 2013—Ohio—4530, 998 N.E.2d 437, ‘ll 15; Coleman 12. Portage Cnty. Eng’r., 133 Ohio St.3d 28, 2012—Ohio~3881, 975 N.E.2d 925, 11 13; and Hubbell v. City of Xenia, 115 Ohio St.3d 77, 2007—Ohio4839, 873 N.E.2d 878, ‘1[ 23. The protections of governmental immunity are ”urgently needed in order to ensure the continued ability of local governments to provide public peace, health, and safety services to their residents." Riscatti at 16 quoting Am.Sub.H.B. No. 11 176, Section 8, 141 Ohio Laws, Part I, 1733. This Court has reiterated that early resolution of governmental immunity pursuant to R.C. Chapter 2744 is beneficial to both parties. Id. at 1[ 17; Summerville 1/. Forest Park, 128 Ohio St.3d 221, 2010—Ohio—6280, 943 N.E.2d 522, ‘II 39; Coleman at 11 14; and Hubbell at ‘i[ 25. Early resolution saves time, effort, and the expense of a trial and appeal. Riscatti. Thus, governmental immunity issues are generally a question of law. See Conely 11. Shearer, 64 Ohio St.3d 284, 292, 595 N.E.2d 862 (1992). Clarifying the distinction between negligent and reckless conduct is necessary to realize the objective of this overall policy. In many cases the distinction between the two standards determines whether or not an employee of a political subdivision is immune or liable. R.C. 2744.03(A)(6); Anderson at ‘]I 23. An employee is not liable for negligent conduct. Id. But, an employee is liable for reckless conduct. Id. Furthermore, reckless conduct also may preclude application of the defense under R.C. 2744.03(A)(5) for a political subdivision when there is an exception to immunity under RC. 2744.02(B). In 2015, engines from the Columbus Division of Fire responded to emergency incidents 90,732 times. See City of Columbus Division of Fire Annual Report 2015, htips://www.columbus.gav/public—safetyMre/ (accessed Oct. 24, 2016). This statistic does not include Columbus Division of Fire responses to emergency incidents by ladder trucks, ambulances, or staff vehicles. Nor is it capable of encapsulating every other act by employees of the City of Columbus or any other political subdivision taken within the course and scope of their employment. The distinction between negligent and reckless conduct is a significant issue for political subdivisions. By clarifying the distinction between negligent and reckless conduct, courts and parties may efficiently resolve immunity issues earlier in the litigation process and ultimately preserve the financial integrity of political subdivisions in accordance with the policy behind R.C. Chapter 2744. In this case, the Tenth District Court of Appeals was divided on the issue of reckless conduct. Several other district courts of appeals have struggled to find the line between negligent and reckless conduct even after this Court articulated the standard for reckless conduct in Anderson. See generally Musburn v. Dutcher, 2012—Ohio-6283, 14 N.E.3d 383, ‘j[ 37 ("The spectium of intent stretches from negligence, through reckless, to intentional, and there are no bright lines. We agree with the Bell court that the line between willful and wanton misconduct and ordinary negligence can be a very fine one.”); Gilbert 12. City Cleveland, 8th Dist. of Cuyahoga No. 99708, 2013—Ohio~5252, ‘ll 15 ("the line between willful or reckless misconduct, wanton misconduct, and ordinary negligence can be a fine one"); Anderson 11. City of Massillon, 5th Dist. Stark Co. No. 2013CA00144, 2014-Ohio-2516, ‘II 58 (”Courts have consistently held that the line between willful, wanton, or reckless misconduct and ordinary negligence is a fine one/’); Weitzel v. Trumbull County Comm’rs, 11th Dist. Trumbull Co. No. 2014~T—0034, 2014—Ohio~5620, ‘j[ 20 ("the line between such misconduct and ordinary negligence is sometimes a fine one”); and Webber v. Lazar, 2nd Dist. Montgomery Co. Nos. 26188 and 26463, 2015-Ohio—1942, 21 ‘II (Donovan, ]., dissenting) (”we emphasized ’the line between recklessness and negligence is often fine”). If the line between negligent and reckless conduct remains fine, courts will be unable to resolve the immunity issue early and efficiently. This may lead to more lengthy litigation, expenses, and trials. Thus, clarifying the line between negligent conduct and reckless conduct will naturally follow from Anderson. It will also promote the preservation of the fiscal integrity of political subdivisions and improve judicial economy in the area of political subdivision immunity and liability. The distinction between negligent conduct and reckless conduct also impacts the immunity, defense, and indemnification of State employees. See generally
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