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 [email protected] [email protected] [email protected] [email protected] [email protected]

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 R.C. 9.86, 9.87, 109.362, 120.06, 149.46, 1515.081, and 5703.54, among others. In addition, the distinction

extends beyond the realm of governmental liability and immunity. Reckless conduct is

a standard also found in provisions of the Revised Code governing financial institutions

(R.C. 1125.33, 1157.33, and 1165.33), mining (R.C. 1513.372 and 1561.26), hazardous

materials cleanups (R.C. 2305.232, 2305.237, and 2305.238), pharmaceutical sales (R.C.

3715.054), and towing (R.C. 4513.66).

Thus, the distinction between negligent and reckless conduct is of public and

great general interest. Clarifying this distinction will promote the policy behind R.C.

Chapter 2744 and increase judicial economy, while also impacting areas beyond

governmental immunity and liability.

III.Statement of the Case and the Facts

Engine 32, driven by Firefighter Paul Sheridan, responded to a fire alarm at an

elementary school on the afternoon of November 12, 2013. During the response, Engine

32 proceeded through a curve on Refugee Road and men encountered an intersection at

Brice Road. In order to get to the elementary school, Engine 32 had to proceed through the intersection. The intersection was fairly busy at that time. As it approached,

Sheridan slowed Engine 32. Engine 32 had a red light. Sheridan looked at each oncoming lane of traffic and perceived that traffic i.r1 each opposing lane had stopped.

The emergency lights of Engine 32 were on. Sheridan testified that he had also activated the electronic siren. Sheridan activated the air horn in short bursts prior to entering the intersection. He did not bring Engine 32 to a complete stop at the red light. Instead, he

proceeded into the intersection. At the time Engine 32 entered the intersection, Sheridan

estimates it was traveling approximately thirty—five miles per hour, which was the

speed limit on Refugee Road. After entering the intersection, Engine 32 collided with a

vehicle driven by Elvyra Glenn. Ms. Glenn later died from her injuries.

Two individuals heard the air horn, but did not hear the siren. Another

individual, who was stopped at the red light on Refugee Road, heard both the siren and

the air horn and witnessed Engine 32 slow down. This witness, along with another, did

not see the vehicle driven by Ms. Glenn come to a complete stop. Thus, there remained

genuine issues of material fact whether or not the siren was activated and whether or

not Ms. Glenn came to a complete stop before Engine 32 entered the intersection.

The Executor of the Estate of Elvyra Glenn filed a wrongful death and

survivorship action against the City of Columbus and John Doe. The City moved for

summary judgment based upon immunity under R.C. Chapter 2744. The Executor filed an amended complaint and substituted Paul Sheridan for Iohn Doe. The Executor alleged the conduct of the City was negligent, willful, and wanton, and Sheridan's conduct was negligent, willful, wanton, and reckless. The City withdrew its motion for summary judgment and then filed a new motion jointly with Sheridan, again on the basis of immunity. The trial court denied the City and Sheridan's joint motion. See

Exhibit 3. The City and Sheridan appealed. The Tenth District Court of Appeals reversed in part and affirmed in part the

trial court. See Exhibit 1. All three judges on the panel of the Tenth District held the

operation of Engine 32 did not constitute willful or wanton misconduct. But, the panel

split on the issue of reckless conduct. The majority held ”[a] reasonable jury could

conclude that Sheridan's conduct of not activating Engine 325 electronic siren during

the emergency run, and entering the intersection at 35 m.p.h. against a red light, despite

an observable vehicle continuing to move toward the intersection, constituted reckless

conduct.” Id. at ‘ll 30. The dissent, however, did not find the issues of fact to be material.

Thus, the dissent did not find Sheridan consciously disregarded a risk or that his

conduct was — substantially greater than negligent conduct. Id. at ‘I[‘j[ 38 39.

IV.Arguments in Support of Propositions of Law

Proposition of Law 1: Negligent conduct and reckless conduct describe distinct degrees of care.

Negligent conduct occurs when an actor fails to exercise care to guard against reasonably anticipated risks; whereas, reckless conduct occurs when an actor fails to exercise care to guard against known or obvious risks. Thus, negligent conduct and reckless conduct describe distinct degrees of care.

”a Negligent conduct requires proof of duty requiring the defendant to conform to a certain standard of conduct.” Cromer 11. Children's Hosp. Med. Ctr. Of Akron, 142 Ohio

St.3d 257, 2015—Ohio-229, ”The 29 N.E.3d 921, ‘i[ 23. existence of a duty depends on the foreseeability of the injury." Id. at ‘ll 24 quoting Menfiee v. Ohio Welding Products, Inc., 15

Ohio St.3d 75, 77, 472 N.E.2d 707 (1984). ”The test for foreseeability is whether a

reasonably prudent person, under the same or similar circumstances as the defendant,

should have anticipated that injury to the plaintiff or to those in like situations is the

probable result of the performance or nonperformance of an act.” Commerce 8' Industry

Ins. Co. 71. Toledo, 45 Ohio St.3d 96, 98, 543 N.E.2d 1188 (1989). "[T]he existence and scope

of a person's legal duty is determined by the reasonably foreseeable, general risk of

harm that is involved.” Cromer at ‘]I 24. Thus, a defendant's duty under negligence is

triggered when a risk of harm is foreseeable.

”The scope of any duty owed is the standard of care that an actor must exercise."

Id. at 'j[ 27. ”The minimum standard of care expected under any circumstances is to

exercise that degree of care and caution that an ordinarily careful and prudent person

would exercise under similar circumstances." Id. The duty is ”to conform to the legal

standard of reasonable conduct in the light of risk.” apparent Berdyck 11. Shinde, 66 Ohio

St.3d 573, 578, 613 N.E.2d 1014 (1993). Society expects people to exercise reasonable precautions to guard against risks a reasonable person would anticipate. Cromer at ‘j[ 24.

Thus, a defendant has a duty to take reasonable precautions when a risk is reasonably foreseeable.

On the other hand, reckless conduct requires showing a defendant failed to exercise care to avoid "known a or obvious risk of harm to another that is unreasonable under the circumstances and is substantially greater than negligent conduct.” Anderson,

134 Ohio St.3d 380, 2012—Ohio—5711, 983 N.E.2d 266, at paragraph 4 of the syllabus. The

duty under reckless conduct is triggered by a risk of harm that is known or obvious.

And, the scope of that duty is to act in light of the known or obvious risk. Thus, the

degree of care an actor must exercise is in response to known or obvious risks of harm.

Therefore, negligent conduct and reckless conduct describe distinct degrees of care.

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.

Negligent conduct "consists in mere inadvertence, incompetence, unskillfulness,

or a failure to take precautions to enable the actor adequately cope with a possible or

probable future emergency.” Marchetti v. Kalish, 53 Ohio St.3d 95, 100, 559 N.E.2d 699

(1990), tn. 3 quoting 1 Restatement Law of 2d, Torts, Section 500, Comment g (1965). In

contrast, "reckless misconduct requires a conscious choice of a course of action, either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man.” Id. Thus, reckless conduct ”requires something more than mere negligence.” O’Toole 11. Denihan, 118 Ohio

St.3d 374, 2008—Ohio-2574, 889 N.E.2d 505, paragraph 3 of the syllabus. ”The actor must be conscious that his conduct will in all probability result in injury." Id. ”[T]he standard

for showing recklessness is high.” Id. at ‘J[ 75. “Recklessness is a perverse disregard of a known risk.” Id. at paragraph 3 of the syllabus. More recently, this Court articulated

that “[r]eckless conduct is characterized by the conscious disregard of or indifference to

a known or obvious risk.” Anderson, 134 Ohio St.3d 380, 2012—Ohio~571 1, at paragraph 4

of the syllabus. While reckless conduct would suffice to prove negligent conduct,

negligent conduct would not suffice to prove reckless conduct. See Id. at ‘]I 35.

Therefore, the "something more” required to elevate conduct from negligence to

recklessness is the mental state of the actor in relation to the risk. See Kurz 1:. Great Parks

of Hamilton Cnty., 1st Dist. Hamilton No. C—150520, 2016—Ohio~2909, ‘J1 25. For an actor

to be negligent, he or she must merely fail to take a reasonable precaution in relation to

a general risk of harm. Cromer, 142 Ohio St.3d 257, 2015—Ohio—229, 29 N.E.3d 921, ‘II 24.

But for an actor to be reckless, he or she must consciously disregard or act indifferently

to a known or obvious risk. Anderson, 134 Ohio St.3d 380, 2012~Ohio-5711, at paragraph

4 of the syllabus; Marchetti, 53 Ohio St.3d 95, 100, 559 N.E.2d 699, fn. 3. ”If, for example, a golfer knows another is within the line of flight of his shot and fails to offer the customary warning of ’fore,”’ such conduct may be reckless. Thompson 0. McNeill, 53

Ohio St.3d 102, 104, 559 N.E.2d 705 (1990). However, when the golfer does not know or

it was not obvious another was within the line of flight of his shot and still fails to offer the customary warning, the conduct is not reckless. Id. at 106. The mental state of the actor in relation to the risk provides a critical distinction between negligent and reckless conduct.

10 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.

To determine whether or not conduct is reckless in a particular situation, the

conduct must be analyzed with reference to the rules and customs that shape the

parties’ conduct. See Thompson, 53 Ohio St.3d at 105, 559 N .E.2d 705. These rules and

customs determine the unreasonableness of the risk of harm and whether or not it is

substantially greater than negligent conduct. Id. In other words, the Revised Code

provisions governing emergency vehicle responses shape the conduct of emergency

vehicle drivers and other drivers on the road. These provisions must be considered

when determining whether or not the conduct of an emergency vehicle driver was

reckless.

The Revised Code provides rules for emergency vehicle drivers and for other drivers on the road when those drivers encounter an emergency vehicle. When responding to an emergency call, the driver of an emergency vehicle may proceed cautiously past a red or stop signal or any stop sign. R.C. 4511.03. And, neither traffic control devices nor speed limits apply to an emergency vehicle responding to an

emergency call when the vehicle displays at least one flash.i.ng, rotating, or oscillating light and the driver of the vehicle gives an audible signal by siren, exhaust whistle, or bell. R.C. 4511.041, 4511.12, and 4511.24. These sections still require the driver of an

11 emergency vehicle to drive with due regard. On the other hand, other drivers must

yield the right—of«way upon the approach of an emergency vehicle until that vehicle has

passed. R.C. 4511.45(A). These rules determine the reasonableness of the risks during

the response of an emergency vehicle. The Tenth District Court of Appeals has

previously explained risks must be viewed within the context of an emergency response

by police officers:

Police runs in response to emergencies inevitably entail some degree of risk both to the responding officer and affected traffic. Nonetheless, Ohio Law provides that vehicles on such emergency runs may, with lights activated and with due regard for the safety of others, exceed the posted speed limit (R.C. 4511.24) and proceed through red lights or stop signals (R.C. 4511.03). Because the law and current police and emergency practice clearly contemplate the necessity in some circumstances of such emergency runs, a responding police officer does not create an ”unreasonable” risk of harm by engaging in an emergency run merely because such a response creates a greater risk than would be incurred by traveling at normal speed in compliance with opposing traffic signals. The question of

unreasonable risks must be weighed in terms of what is acceptable in the context of an emergency run, not ordinary driving conditions. Byrd 1;. Kirby, 10th Dist. Franklin No.

04AP-451, 2005-Ohio-1261, ‘j[ 28.

the Thus, issue of reckless conduct may only be resolved by considering the rules and customs associated with an emergency response and the particular facts of the response.

See Thompson, 53 Ohio St.3d at 105, 559 N.E.2d 705.

12 V. Conclusion

For the reasons set forth i.n this Memorandum in Support of Jurisdiction, this case is a matter of public and great general importance.

Respectfully Submitted, //MZM/L

Michael R. Halloran (0089093) Janet Hill Arbogast (0061955) CITY OF COLUMBUS, DEPARTMENT or LAW

RICHARD C. PFEIFFER, JR., CITY ATTORNEY 77 North Front Street, Fourth Floor Columbus, Ohio 43215 Ph: 614.645.7385/Fax: 614.724.6503 [email protected] [email protected]

Attorneys for Defendant City of Columbus and Defendant—Appellant Paul Sheridan

13 CERTIFICATE OF SERVICE

I hereby certify that on November 1 2016 the foregoing was filed with the Clerk

of the Supreme Court, and a copy was served by electronic mail and U.S. Regular Mail

upon the following i_ndividual(s):

Robert S. Roby (0065962) Lisa C. Haase (0063403) Bruce A. Curry (0052401) CURRY, ROBY & MULVEY CO., LLC 30 Northwoods, Suite 300 Columbus, Ohio 43235 614.430.8885 X102

614.430.8889 (fax) [email protected] [email protected] [email protected]

Attorneys for PluintflAppellee William R. Glenn

Respectfully Submitted,

// Michael R. Halloran (0089093) Janet Hill Arbogast (0061955) Assistant City Attorneys

Attorney for Defendant City of Columbus and Defendant—Appellant Paul Sheridan EXHIBIT 1 IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

William R. Glenn, Individually and as Executor of the Estate of Elvyra T. Glenn (Deceased), No. 16AP-15 Plaintiff-Appellee, (C.P.C. No. 14CV—12177)

V. PM-16AP000D15 : (REGULAR CALENDAR)

City of Columbus et al.,

Defenda.nts—Appellants.

2712144

Sep DECISION 2016

Rendered on September 27, 2016

Courts-

of On brief: Curry, Roby & Mulvey Co., LLC, Robert S. Roby, Clerk Lisa C. Haase, and Bruce A. Curry, for appellee. Argued: Lisa C. Haase.

Appeals On brief: Richard C. Pfeifler, Jr., City Attorney, Michael R. Halloran, and Janet Hill Arbogast, for appellants. Argued: of Michael R. Halloran.

Court

APPEAL from the Franklin County Court of Common Pleas Ohio

LUPER SCHUSTER, J.

County {1] 1) Defendants—appellants, City of Columbus ("city") and Paul Sheridan, appeal from a judgment of the Franklin County Court of Common Pleas denying their joint

Franklin motion for summary judgment in a lawsuit filed by pla1'ntiff—appellee, William R. Glenn ("executor"), individually and as executor of the estate of Elvyra T. Glenn. For the

following reasons, we affirm in part and reverse in part. No. 16AP—15 2

1. Facts and Procedural History

This matter {1l 2} arises from a collision between an automobile driven by Elvyra Glenn ("Glenn") and a city fire truck ("Engine 32") driven by firefighter Sheridan. At approximately 3:09 p.m., on November 12, 2013, Engine 32 was dispatched to respond to

a fire alarm at an elementary school. In addition to Sheridan, firefighters Tyler Heisterkamp and Dave Stone were on Engine 32. Sheridan drove Engine 32 through a curve and approached the Refugee Road and Brice Road intersection intending to go PM-16AP00lJD15 straight through the intersection to reach the elementary school. The fire truck's emergency lights were on, and Sheridan activated the air horn in short bursts. Because vehicles were stopped in the lane where cars were going straight, Sheridan maneuvered 2112244 Engine 32 into the left turn lane. The light was red for Sheridan but all incoming traffic was either stopped Sap or, at most, one vehicle (driven by Glenn) was travelling at a slow speed. Sheridan did not stop Engine 2016 32 and proceeded into the intersection. On entering the intersection, Engine 32 struck Glenn's small sedan. Glenn died from injuries she

Courts- sustained in the collision.

of 3} In November {1} 2014, the executor sued the city and the fire truck driver,

Clerk identified in the complaint "John Doe." as In August 2015, the city moved for summary judgment, claiming immunity under R.C. Chapter 2744. In September 2015, the trial Appeals court granted the executor leave to file an amended complaint naming Sheridan as the fire of truck driver. In view of the amended complaint, the city withdrew its August 2015 motion

Court for summary judgment and, on September 17, 2015, joined Sheridan in moving for summary judgment, with both claiming immunity Ohio under RC. Chapter 2744. In December 2015, the trial court denied the city and Sheridan's joint motion for summary County judgment. The court found that because reasonable minds could disagree as to whether Sheridan operated Engine 32 in a wanton or reckless manner, the city and Sheridan failed

Franklin to demonstrate their entitlement to judgment as a matter of law on immunity grounds.

{1l 4} The city and Sheridan timely appeal.‘

| Generally, the denial of a motion for summary judgment is not a final, appealable order. Stevens v. Maxson, 10th Dist. No. 12AP-672, 2o13~0hio-5792, 1 8. However, R.C. 2744.o2(C) provides that "[a]n order that denies a political subdivision or an employee of a political subdivision the benefit of an alleged immunity from liability as provided in this chapter or any other provision of the law is a final order." No. 16AP—15 3

II. Assignments of Error

(1[ 5} The city and Sheridan assign the following errors for our review:

1. The trial court erred when it denied the motion for summary judgment filed by Defendant-Appellant City of Columbus.

2. The trial court erred when it denied the motion for summary judgment filed by Defendant—Appellant Paul Sheridan.

PM-16APOD0015

III. Standard of Review

6} This court's review court's {1[ of a trial decision on summary judgment is de novo. 2712244 Bonacorsi 1:. Wheeling & lake Erie Ry. Co., 95 Ohio St.3d 314, 2002-Ohio—222o,

‘ll 24. Summary judgment is appropriate only when the moving party demonstrates (1) no Sep genuine issue of material fact exists, (2) the moving party is entitled to judgment as a 2016 matter of law, and (3) reasonable minds could come to but one conclusion and that

conclusion is adverse to the party against whom the motion for Courts- summary judgment is

made, that party being entitled to have the evidence most strongly construed in its favor. of Civ.K State ex 56(C); rel. Grady v. State Emp. Relations Bd., 78 Ohio St.3d 181, 183 Clerk (1997).

Pursuant {1] 7} to Civ.R. 56(C), the moving party bears the initial burden of

afAppeals informing the trial court of the basis for the motion and identifying those portions of the record demonstrating the absence of a material fact. Dresher u. Burt, 75 Ohio St.3d 280, Court

293 (1996). However, the moving party cannot discharge its initial burden under this rule

Ohio with a conclusory assertion that the nonmoving party has no evidence to prove its case; the moving must party specifically point to evidence of the type listed in Civ.R. 56(C) County affirmatively demonstrating that the nonmoving party has no evidence to support the nonmoving party's claims. Id.; Vahila v. Hall, 77 Ohio St.3d 421, 429 (1997). Once the Franklin

moving party discharges its initial burden, summary judgment is appropriate if the nonmoving party does not respond, by affidavit or as otherwise provided in Civ.R. 56, with specific facts showing that a genuine issue exists for trial. Dresher at 293; Vahila at 430; Civ.R. 56(E). No. 16AP-15 4

IV. Discussion

A. First Assignment of Error — the City's Immunity The {1] 8} city and Sheridarfs first assignment of error alleges the trial court erred

in denying the city's motion for summary judgment. The city and Sheridan argue the city

is immune from a liability as matter of law because Sheridan did not operate Engine 32 in

a manner constituting willful or wanton misconduct. We agree. Pursuant {1[ 9} to the Political Subdivision Tort Liability Act, codified in R.C.

PM-16APOO0015 Chapter we 2744, apply a three—tiered analysis to determine the immunity of a political

subdivision. Colbert v. Cleveland, Ohio St.3d 99 215, 2003-Ohio—3319, ‘ll 7; Yonkings v. Piwinski, 10th Dist. No. 11AP-07, 2011-Ohio—6232, 1] 18. First, the general rule is political 2112:44 subdivisions are not liable generally for injury or death to persons in connection with a political subdivisions performance Sep of a governmental or proprietary function. Howard v. Miami Twp. Fire 2016 Div., 119 Ohio St.3d 2oo8—Ohio—2792, 1, ‘II 18; see R.C. 2744.o2(A)(1) ("[e]xcept as provided in division (B) of this section, a political subdivision is not liable in

Courts- damages in a civil action for injury, death, or loss to person or property allegedly caused of any act or by omission of the political subdivision or an employee of the political

Clerk subdivision in connection with a governmental or proprietary function."). Next, we consider whether any of R.C. 2744.02(B)‘s enumerated exceptions to the general rule of Appeals immunity applies. Howard at ‘ll 18. As relevant here, R.C. 2744.o2(B)(1) states, "[e]xcept of as otherwise provided in this division, political subdivisions are liable for injury, death, or

Court loss to person or property caused by the negligent operation of any motor vehicle by their employees when the employees are engaged within Ohio the scope of their employment and authority." R.C. 2744.o2(B)(1)(b) sets forth a full defense to that liability when a fire County department employee operates a motor vehicle in response to an emergency and the "operation of the vehicle did not constitute willful or wanton misconduct." Finally, if

Franklin there is an applicable exception, we then determine whether any of the statutory defenses of R.C. 2744.03 apply. Howard at 1] 18.

10} The executor {1] argues the city is liable because Sheridan operated Engine 32 in a manner constituting willful and wanton misconduct and because the city failed to properly train its employees, supervise its employees, and enforce its own policies. We are unpersuaded by these arguments. No. 16AP-15 5

{1| 11} It is undisputed that the city, as a political subdivision performing a government function, qualifies for immunity under R.C. 2744.o2(A)(1). It is also undisputed that Sheridan was operating Engine 32, a motor vehicle, while responding to an emergency call. The executor’s argument, that the city is liable because the vehicle

collision resulted from the city's failure to properly train, supervise, and enforce its rules, lacks merit. R.C. 2744.o2(B) does not contain an independent exception to a political subdivision's immunity under R.C. 2744.o2(A)(1) for the failure to train, supervise, or

PM-16AP000015 enforce its own policies. See Digiorgio v. Cleveland, 8th Dist. No. 95945, 2011-Ohio-

5878, ("there is no 1| 33 exception to [a city's] immunity for the training, supervision, or discipline of police officers“). Therefore, the dispute regarding the city's liability centers 2712:44 on the applicability of R.C. 2744.o2(B)(1)(b). As to that issue, the city and Sheridan argue that R.C. Sep 2744.o2(B)(1)(b) applies because Sheridan did not operate Engine 32 in a

manner that constituted willful or 2016 wanton misconduct. The executor argues the trial

court properly determined that genuine issues of material fact remain as to Sheridan's

Courts- conduct.

of The {1| 12} Supreme Court of Ohio has explained the different degrees of care

Clerk relevant to the liability of a political subdivision or an employee of a political subdivision.

In Anderson u. Massillon, 134 Ohio St.3d 380, 2o12—Ohio-5711, the Supreme Court noted Appeals "a that political subdivision has a full defense to liability when the conduct involved is not of willful or wanton, and therefore, if the conduct is only reckless, the political subdivision

Court has a full defense to liability." Id. at 1| 23. Additionally, the Supreme Court clarified that

"[t]he terms ’willful,' ‘wanton,’ and ‘reckless’ as used Ohio in [the political subdivision liability] statutes are not interchangeable.“ Id. at 1| 40.

County 13} Willful misconduct, {1| as the Supreme Court defines it, "implies an intentional

deviation from a clear duty or from a definite rule of conduct, a deliberate purpose not to Franklin discharge some duty necessary to safety, or purposefully doing wrongful acts with

knowledge or appreciation of the likelihood of resulting injury." Id. at 1| 32, citing Tighe v. Diamond, Ohio 149 St. 520, 527 (1948). Willful misconduct involves the intent to injure.

Id. at 26, citing Tighe. 1| Wanton misconduct, however, ”is the failure to exercise any care toward those to whom a duty of care is owed in circumstances in which there is great

probability that harm will result." Anderson at 1| 33, citing Hawkins u. Ivy, 50 Ohio St.2d No. 16AP—15 6

117-18 114, (1977). Lastly, reckless conduct is “the conscious disregard of or indifference to a known or obvious risk of harm to another that is unreasonable under the

circumstances and is substantially greater than negligent conduct." Anderson at 1} 34, citing Thompson 1;. McNeill, 53 Ohio St.3d 102, 104-05 (1990).

{1} 14} Therefore, as it relates to the city's liability, at issue is whether, based on the evidence submitted, reasonable minds could disagree as to whether Sheridan operated Engine a 32 in manner constituting willful or wanton misconduct. The evidence before

PM-16AP000015 the trial court included the affidavit and deposition testimony of firefighters Sheridan, Heisterkamp, Donald Sulsburey, and nongovernment accident witnesses Leslie Allmendinger, Keith 12:44 Castle, and Brian Bendik. As pertinent to the issues presented in this

27 appeal, the evidence demonstrated the following.

15} Sheridan Sep {1} and Heisterkamp testified that, when they exited the fire station to respond to the elementary school's 2016 fire alarm, Sheridan had already activated the fire truck's emergency lights and electronic siren. Approximately 200 feet from the Refugee

Courts- Road and Brice Road intersection, where the accident occurred, there is a curve in the

of road, and Sheridan slowed the fire truck through the curve.

Clerk After {1} 16} the curve, Sheridan could observe the Refugee Road and Brice Road intersection. At that time, Engine 32's speed was approximately 35 m.p.h., which is the Appeals speed limit on Refugee Road. Sheridan observed "fairly heavy" traffic at the intersection.

of (Sheridan Aff. at 1} 16.) The light was red for the fire truck and other vehicles traveling

Court westbound on Refugee Road. Sheridan testified that he scanned the oncoming lanes of

traffic to look for moving vehicles, and he pulled Ohio the air horn on Engine 32 in “short bursts to warn vehicles" of the approaching fire truck at approximately 40 feet from the

County intersection. (Sheridan Aff. at ‘ll 17.) Sheridan further testified that nothing obstructed his view of the north and southbound lanes of Brice Road and, seeing no movement from

Franklin vehicles in the oncoming lanes, he proceeded into the intersection without stopping. According to Sheridan's testimony, he believed it was safe to enter the intersection against a red light because "every lane [was] full“ and "every vehicle [was] stopped." (Sheridan Dep. at 64.)

{1} 17} Sheridan testified that before he entered the intersection, he observed

Glenn "sitting in the left turn lane [on southbound Brioe Road] waiting on oncoming No. 16AP—15 7

traffic so she could make her left turn." (Sheridan Dep. at 67.) Sheridan further testified that when he started to accelerate Engine 32 through the intersection, Glenn's vehicle began to move to make the left hand turn, from southbound on Brice Road to eastbound on Refugee Road, resulting in the collision. Sheridan estimated that when Engine 32 struck Glenn's vehicle, it was travelling approximately 35 m.p.h. Thus, according to Sheridan's Glenn's testimony, vehicle was stationary as Engine 32 approached the

intersection, but she then moved, causing the collision.

PM-16APOD0015 Firefighter {1} 18) Heisterkamp, who was a passenger in Engine 32, also testified that he did not see any moving vehicles as the fire truck approached the intersection. However, other witnesses testified that Glenn's vehicle did not completely stop at or near 2712244 the intersection prior to the collision. Firefighter Sulsburey, who followed Engine 32 as a passenger in "Ladder 32," Sep a ladder fire truck, testified that “all vehicles at the intersection of Brice Road and Refugee Road * * * 2016 [were] stopped when Engine 32 approached the intersection." (Sulsburey Aff. at ‘ll 9.) But Sulsburey also testified that he "did not witness

Courts- the small sedan traveling southbound on Brice Road come to a complete stop at the of intersection." (Sulsburey Aff. at ‘ll 9.)

Clerk {1} 19} Allmendinger, who was traveling westbound on Refugee Road, was stopped in her vehicle at the red light at Brice Road. Allmendinger testified that she could see the Appeals approaching fire truck in her rearview mirror, and when she looked forward at the of intersection, "[a]ll the cars at the intersection were stopped except for one."

Court (Allmendinger Aff. at ‘I1 7.) Allmendinger further testified, "The fire engine and a car that

was in the turn lane on Brice Road collided in the Ohio intersection. I did not see the car on Brice Road come to a complete stop." (Allmendinger Aff. at ‘ll 10.) Thus, there is a County genuine dispute as to whether Glenn's vehicle ever completely stopped as the fire truck

approached the intersection.

Franklin There (1[ 20) is also a genuine dispute as to whether Engine 32's electronic siren was on as it approached and entered the intersection. As noted above, Sheridan and Heisterkamp testified that Engine 32's electronic siren was on when they exited the fire station. Allmendinger testified that in addition to seeing the emergency lights, she heard the siren and air horn. But other witnesses testified they did not hear a siren. Castle testified that he drove south through the Refugee Road and Brice Road intersection No. 16AP-15 8

shortly before the accident. Castle heard the air horn of the fire truck soon after he crossed the intersection, and he looked in his rearview mirror to try to locate the fire truck. Two or three seconds after Castle heard the air horn, he saw the collision in the

intersection as he looked in the rearview mirror. Castle testified that he did not hear a siren before or after the collision, specifically noting he was "100—percent sure that the sirens were not on." (Castle Dep. at 17.) Bendik, the manager of a business adjacent to the Refugee Road and Brice Road intersection, testified that he was taking trash to PM-16AP00OlZl15 a

dumpster when he heard truck's the fire air horn and, two or three seconds later, the collision. Bendik testified that he did not hear a siren. Thus, while there is no dispute that Sheridan activated 32's Engine air horn two or three seconds before the collision, the 2712:44 testimony was conflicting as to whether Sheridan also activated the fire truck's electronic

Sep siren.

21} As to the issue of 2016 {1[ whether Sheridan engaged in willful misconduct, the executor argues that Sheridan acted willfully by intentionally violating the city's Standard

Caurts- Operating Procedure 01-01-01. This rule provides that during "emergency response," of drivers of "all Fire Division vehicles shall bring the vehicle to a complete stop" for red

Clark traffic lights. (Standard Operating Procedures 01-01-o1, XII.) The executor's argument is unpersuasive. In Anderson, the Supreme Court noted that, "it is well established that the Appeals violation of a statute, ordinance, or departmental policy enacted for the safety of the

of public is not per se willful, wanton, or reckless conduct, but may be relevant to Court determining the culpability of a course of conduct." Anderson at ‘ll 37. Additionally, it is

undisputed that, prior to the accident, Sheridan Ohio was aware of city protocol requiring firefighters to stop at red lights, even in emergencies. Sheridan testified that he does not County always abide by that protocol, and he did not follow it in this case. However, Sheridan's violation of city protocol in this case does not reasonably demonstrate that he drove Franklin Engine 32 into the intersection with the purpose of causing harm to another. Considering the absence of any other evidence demonstrating such intent, there is no genuine dispute

on this issue. Thus, the executor cannot demonstrate willful misconduct under RC. 2744.02(B)(1)(b).

Nor can {1[ 22} the executor demonstrate Sheridan's conduct constituted wanton misconduct under RC. 2744.o2(B)(1)(b). As noted above, there are genuine disputes as No. 16AP-15 9

to whether the electronic siren was on and whether Glenn's vehicle came to a complete stop as Engine 32 approached. However, construing the evidence most favorably toward the executor, no reasonable jury could conclude that Sheridan engaged in wanton

misconduct, that is, that Sheridan failed to exercise "any care" toward other motorists.

(1123) The trial court determined that this case is factually similar to Hunter 1).

Columbus, 139 Ohio App.3d 962 (10th Dist.2ooo). In Hunter, the city of Columbus and :1 Columbus firefighter were sued by the estate of a deceased driver who was struck by a PM-16APO0D015 Columbus emergency vehicle. The trial court granted the defendants’ motion for summary judgment, finding that the firefighter's conduct was not willful, wanton, or reckless. On appeal, this court reversed and cautioned against using too "simplistic" of an

2712:“ analysis when considering whether an actor used "any care." The “simplistic analysis" rejected this court Sep by in Hunter was the proposition that operating’ an emergency vehicle with lights and sirens 2016 running was necessarily sufficient to satisfy the "any care" requirement. Id. at 970. In Hunter, the emergency vehicle had lights and sirens running

Caurts- but the operator otherwise engaged in "extreme" conduct, namely, going left of center of while traveling 26 m.p.h. above the roads 35 m.p.h. speed limit. Id. at 971. Because the

Clerk probability of harm created by the operator of the emergency vehicle was much greater in those circumstances, the finding of "any care" reasonably required more than just lights Appeals and sirens. Id. of We {1] 24} disagree with the trial court's application of Hunter to this case. The

Court evidence here does not demonstrate facts "extreme enough" to send to a jury the issue of

whether Sheridan failed to exhibit "any care." Ohio Although there are genuine factual disputes as to whether 32's Engine electronic siren was on prior to the collision, and as to whether County Glenn's vehicle came to a complete stop prior to entering the intersection, certain other

undisputed facts demonstrated the exercise of care by Sheridan. It is undisputed that the

Franklin lights of Engine were on 32 as it approached the intersection, that it was traveling at a moderate speed of 35 m.p.h. (the speed limit for the road) at that time, and that Sheridan activated the truck's fire air horn in short, repeated bursts prior to entering the intersection. Although one could reasonably argue that two or three seconds of notice

from Engine 32's air horn was insufficient notice of the approaching fire truck, it did provide at least some notice. Evidence that Sheridan provided audible and visual notice No. 16AP—15 10

of the fire truck prior to entering the intersection at a moderate speed, combined with evidence of Sheridan's observation that all incoming traffic was stopped, with the possible

exception of one slowly moving vehicle, conclusively demonstrate that Sheridan's conduct did not constitute wanton misconduct. He exercised at least some care in trying to prevent a vehicle collision as he proceeded to the reported emergency, and he did not otherwise engage in extreme conduct that would effectively negate or eliminate the significance of the care he did exhibit. Therefore, we disagree with the trial court's

PM-16APUO0015 application of Hunter to the facts of this case.

5125} Upon reviewing the record, we find that the executor cannot demonstrate the existence of any genuine issue of material fact as to the executor's claims against the 2712:!“ city. Construing the evidence most favorably toward the executor, no reasonable jury could conclude that Sheridan's Sep conduct constituted willful or wanton misconduct. Thus,

the city is entitled to immunity as a 2016 matter of law. We, therefore, find that the trial court erred in denying the city's request for summary judgment. Accordingly, we sustain the

Courts- city and Sheridan's first assignment of error. of B. Second Assignment of Error — Sheridan's Immunity

Clerk 26} The Sheridan's {1} city and second assignment of error asserts the trial court erred in denying Sheridan's motion for summa.ry judgment. The city and Sheridan cite Appeals this court's decision in Byrd 2;. Kirby, ioth Dist. No. o4AP—451, 2005—Ohio-1261 in of support of their argument that Sheridan is immune from liability as a matter of law

Court because his conduct was not wanton or reckless. We disagree.

27} "The three—tiered analysis regarding Ohio {1} the potential liability of a political subdivision 'does not apply when determining whether an employee of the political

County subdivision will be liable for harm caused " to an individual.‘ Stevens 1:. Maxson, 10th Dist. No. 12AP-672, 2o13—Ohio—5792, ‘ll 12, quoting Mashburn v. Dutcher, 5th Dist. No. 12 Franklin CAE 010003, 2o12—Ohio—6283, ‘ll 20, citing Cramer u. AugIaizeAcres, 113 Ohio St.3d 266, 2007—Ohio—1946, 1] 17. Rather, R.C. 2744.o3(A)(6) sets forth the immunity of employees

of political subdivisions and the exceptions thereto. Stevens at {I 12. As relevant here, RC. 2744.03(A)(6)(b) provides immunity for a political subdivision employee who acts within the scope of his or her duties unless "[t]he employee's acts or omissions were with

malicious purpose, in bad faith, or in a wanton or reckless manner." No. 16AP—15 11

The {11 28} executor does not allege that Sherida.n acted with malicious purpose or

in bad faith, and we have determined, in regard to the claims against the city, that Sheridan did not engage in wanton misconduct. Thus, the issue of Sheridan's liability

centers on whether his conduct reasonably could be construed as reckless. The and {11 29} city Sheridan argue this court should apply the reasoning of Byrd, wherein this court found no genuine dispute as to whether a police officer's conduct was reckless. Although the Byrd case also involved an emergency vehicle colliding with

PM-16AP000015 another vehicle at an intersection, it is distinguishable. In Byrd, the police officer

activated his cruiser's lights and siren for an emergency call, and, after confirming all incoming traffic was stopped at an intersection, the officer proceeded against a red light 2712:44 into the intersection. The driver of another vehicle, which was initially stopped at the intersection, proceeded Sep into the intersection when his light turned green. The two vehicles then collided. The driver 2016 and a passenger (the plaintiffs) of the vehicle testified that they saw no emergency vehicle and heard no siren before the collision. This court

Courts- determined that, for the purpose of summary judgment, the testimony of the plaintiffs of that they did not hear a siren or see emergency lights prior to colliding with a police

Clerk cruiser was insufficient to counter the testimony of independent witnesses who

affirmatively stated that the lights and siren were activated. Byrd at 1| 24. Here, Appeals independent witnesses disagreed as to whether Sheridan activated the electronic siren. of Additionally, in Byrd, there was no dispute that all oncoming traffic was stopped as the court emergency vehicle approached the intersection, but here there is a question of fact as to whether Glenn was stopped or had merely slowed ‘H Ohio down. Id. at 11-12. Thus, Byrd is distinguishable.

County Construing (11 30} the evidence most favorably toward the executor, the jury could find Engine 32's electronic siren was not activated on the emergency run, and not all

Franklln vehicles were stopped as Sheridan decided to enter the intersection. A reasonable jury could conclude that Sheridan's conduct of not activating Engine 32's electronic siren during the emergency run, and entering the intersection at 35 m.p.h. against a red light, despite an observable vehicle continuing to move toward the intersection, constituted reckless conduct. Therefore, we agree with the trial court's finding that a genuine dispute

exists as to whether Sheridan operated Engine 32 in a reckless manner. No. 16AP—15 12

Because {1131} we find no error in the trial court denying Sheridan's request for summary judgment, we overrule the city and Sheridan's second assignment of error. V. Disposition

{1132} Having sustained the city and Sheridan's first assignment of error and overruled their second assignment of error, we affirm in part and reverse in part the judgment of the Franklin County Court of Common Pleas. Accordingly, this matter is remanded to that court for further proceedings in accordance with law and consistent

PM-16AP00O015 with this decision.

Judgment aflirmed in part and reversed in part; cause remanded.

2712144

TYACK, J ., concurs.

SADLER, J ., concurs in part and dissents in part. Sep SADLER, J 2016 ., concurring in part and dissenting in part.

33} I concur with {11 the majority's holding that the trial court erred in denying the

Courts- city's request for summary judgment and that firefighter Sheridan did not engage in of willful or wanton misconduct. However, I disagree with the majority's holding that there

Clerk remains issues of material fact on the question of whether Sheridan's conduct could reasonably be construed as reckless. Accordingly, I respectfully concur in part and dissent Appeals in part. of {11 34) Summary judgment in favor of an employee of a political subdivision Court asserting immunity under R.C. 2744.o3(A)(6) is proper where circumstances leading to a

vehicle collision do not demonstrate reckless Ohio conduct. Byrd v. Kirby, 10th Dist. No. o4AP-451, 2oo5—Ohio—1261, 11 28; Hewitt v. Columbus, 10th Dist. No. o8AP—1o87, 2oo9— County Ohio-4486, 11 33-34. Such determination is made on a case-by—case basis. "Reckless {11 35} conduct is characterized by the conscious disregard of or

Franklin indrfierence to a known or obvious risk of harm to another that is unreasonable under the circumstances and is substantially greater than negligent conduct." (Emphasis added.)

Anderson v. Massillon, 134 Ohio St.3d 380, 2012—Ohio—5711, paragraph four of syllabus. For example, this court has stated that "[f]or purposes of R.C. 2744.03(A)(6)(b),

' recklessness ‘ " has also been defined as a "perverse disregard of a known risk." Hewitt No. 16AP—15 13

at ‘Ii 32, quoting Byrd at quoting Lipscomb ii 27, 11. Lewis, 85 Ohio App.3d 97, 102 (12th Dist.1993).

{1} 36} Unlike the majority, I find Byrd to be instructive and not sufficiently distinguishable from the facts herein. The Byrd court determined that, despite entering an intersection against a red light at a speed of approximately ten miles over the speed

limit, police officer Kirby was entitled to immunity as a matter of law. The court additionally noted that Kirby slowed his patrol car "to make sure that conflicting traffic

PM-16AP00O015 had stopped." Id. at ‘ll 11. In Byrd, we stated:

Police runs in response to emergencies inevitably entail some degree of risk both to the responding officer and affected

2712:44 traffic. Nonetheless, Ohio law provides that vehicles on such emergency runs may, with lights activated and with due regard for the safety of others, exceed the posted speed limit Sep (R.C. 4511.24) and proceed through red lights or stop signals (R.C. 2016 4511.03). Because the law and current police and emergency practice clearly contemplate the necessity in some circumstances of such emergency runs, a responding caurts- officer does not create an "unreasonable" risk of harm by engaging in an oi emergency run merely because such a response creates a greater risk than would be incurred by Clerk traveling at normal speed and in compliance with opposing traffic signals. The question of unreasonable risks must be

Appeals weighed in terms of what is acceptable in the context of an emergency run, not ordinary driving conditions; an officer responding at ten of miles over the posted speed limit with lights flashing, siren on, and slowing as he approaches an

Court intersection does not create the same risk as one traveling 100 miles per hour at night on unfamiliar roads while

Ohio pursuing in violation of departmental policy, as was the case in Wagner v. Heaulin (2000), 136 Ohio App.3d 719, 737

County N.E.2d 989, a case cited by appellants.

Id. at ‘ll 28.

Franklin (1137; Here, the facts are undisputed that, while on an emergency run, Sheridan slowed the fire truck prior to entering the intersection, operated the fire truck at a moderate and lawful speed with lights activated and audible warnings, and assessed the intersection for moving vehicles. There is no record evidence to show that Sheridan either consciously disregarded or was indifferent to the risk of harm to cars moving into the intersection. No. 16AP—15 14

(1138) In fact, Sheridan's conscious regard for this risk is demonstrated by his

observation of the intersection set forth in his testimony that: "Every vehicle is stopped, I'm * * * * * * which is what looking for. [E]very lane is full. [Glenn] was never moving * * * from the time I could see the intersection. She didn't start to make her turn until I

was already at the edge of the intersection." (Sheridan Dep. at 64, 67, 86.) In his sworn

affidavit, Sheridan further testified that:

16. As we approached the intersection, I slowed Engine 32.

PM-16AP00O015 Traffic was fairly heavy at this time, so I was looking at each oncoming lane for vehicles that were moving.

17. Approximately forty feet from the intersection, I began to pull the air horn 2712:44 in short bursts to warn vehicles at the intersection of the approaching engine.

Sep -)(--X-*

2016 24. As I was pulling the air horn in short bursts and slowed Engine 32, I was looking at each oncoming lane. In Courts- particular, I was looking for vehicle movement.

of at-**

Clerk

27. I did not see any vehicle movement. Each oncoming

Appeals lane had a car stopped in the lane.

28. The fact that each lane of had a stopped vehicle was significant to me. With a stopped vehicle in each oncoming Court lane, I felt there would be less of a chance for a vehicle to appear suddenly in my path of travel.

Ohio

<)(-<)l--)(-

County

30. Even though the light was red for my lane of travel, I did

not bring Engine 32 to a complete stop. I did not stop

Franklin because I perceived all oncoming vehicles were stopped.

(Sheridan Aff. at 3-4.)

H 39) While I agree with the majority that "there is a question of fact as to whether

Glenn was stopped or had merely slowed down," I do not find the question to be material.

(Majority decision at ‘ll 29.) The fact that Sheridan did not see Glenn's car in time to stop

or that he may have misperceived a slowing vehicle for a stopped vehicle, while tragic, is No. 16AP-15 15

not the equivalent of a conscious disregard or indifference for that risk when paired with

the undisputed facts of Sheridan's exercise of care. Alternatively, on this record, no

reasonable juror could view Sheridan's conduct as “substantially greater than negligent

conduct." Anderson at paragraph four of the syllabus. As a result, in my view, Sheridan's

conduct does not meet the definition of "reckless" as a matter of law.

H1 40} Even construing the evidence in a light most favorable to the executor, the

circumstances leading to this tragic collision do not demonstrate that Sheridan engaged in

PM-16AP0000‘l5

reckless conduct. Therefore, I would find the trial court erred in finding that Sheridan

failed to demonstrate his entitlement to immunity.

(11 41) Accordingly, I would reverse the trial court's decision in its entirety and

2712:44

remand for summary judgment to be granted in favor of both the city and Sheridan.

Sep Because the majority does not, I respectfully concur in part and dissent in part.

2016

Courts-

of

Clerk

Appeals

of

Court

Ohio

County

Franklin EXHIBIT 2

17 IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

William K Glenn, Individually and as Executor of the Estate of Elvyra T. Glenn (Deceased), No. 16AP—15 Plaintiff—Appellee, (C.P.C. No. 14CV-12177)

V. : (REGULAR CALENDAR) AM-16AP000015

City of Columbus et al.,

Defendants—Appellants. 7:58

28

Sep JUDGMENT ENTRY

2016 For the reasons stated in the decision of this court rendered on September 27, 2016, appellants‘ first assignment of error is sustained and Courts- second assignment of error overruled. It is the judgment and order of this court that the of judgment of the Franklin County Court of Common Pleas is affirmed in part and reversed

Clerk in and part, this cause is remanded to that court for further proceedings in accordance with law and Appeals consistent with this decision. Costs assessed to both parties equally.

of

Court

Ohio

LUPER SCHUSTER and TYACK, JJ. SADLER, County J., concurs in part.

By [S[ JUDGE Franklin Judge Betsy Luper Schuster Tenth District Court of Appeals

AM-16APO0D015

Date: 09-28-2016

Case Title: WILLIAM R -VS— 7:58 GLENN INDV ET AL COLUMBUS CITY ET AL

28 Case Number: 16AP000015

Sap

Type: .113] - JUDGMENT ENTRY 2016

Cour1s-

So Ordered of

Clerk

50“? Appeals

of /s/ Judge Betsy L. Schuster

Court

Ohio Electronically signed on 2016-Sep-28 page 2 on

County

Franklin EXHIBIT 3

20 Franklin County Ohio Clerk of Courts of the Common Pleas- 2015 Dec 14 10:25 AM-14CV012117

IN THE COURT OF COIVEMON PLEAS, FRANKLIN COUNTY, OHIO CIVIL DIVISION

WILLIAM R. GLENN, INDIVIDUALLY AND AS EXECUTOR OF THE ESTATE OF ELVYRA T. GLENN (DECEASED),

Plaintiff, : Case No. 14 CV 12117

-vs- : JUDGE MCINTOSH

CITY OF COLUMBUS, et al.,

Defendants.

DECISION AND ENTRY DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

MCINTOSH, J.

This matter comes before the Court upon the Motion of Defendants City of Columbus

and Paul Sheridan (collectively “Def'endants”) for Summary Judgment, filed September 17,

2015. Plaintiff William R. Glenn, individually, and as the executor of the estate of Elvyra T.

Glenn (hereafter “Plaintiff”) filed a Memorandum Contra to Defendants’ motion on September

30, 2015. Defendants replied in support oftheir motion on October 7, 2015.

I. INTRODUCTION‘

This personal injury action stems from a motor vehicle collision that occurred at the intersection of Refugee Road and Brice Road in Franklin County, Ohio between a motor vehicle operated Elvyra T. (“Ms. by Glenn Glenn") and Columbus Division of Fire (“CFD") Engine 32.

Engine 32 was operated by Defendant Paul Sheridan (“Mr. Sheridan”), a firefighter and emergency medical technician for the City of Columbus.

‘ Defendants withdrew their original motion for summary judgment filed on August 27, 2015, but did not withdraw the exhibits, affidavits, notices, depositions, and other evidence filed with that motion. As the evidence attached to the original motion remained a part of the record, Defendants incorporated and referenced that evidence into the motion for summaryjudgment now before the Court. Franklin County Ohio Clerk of Courts of the Common Pleas- 2015 Dec 14 10:25 AM-HCV012117

Defendants move for summary judgment arguing political subdivision statutory

immunity pursuant under Ohio Revised Code Chapter 2744. Plaintiff opposes Defendants’

motion on the grounds that: (1) a statutory exception to political subdivision immunity exists for

damages caused by an employee‘s negligent operation of a motor vehicle, and (2) Defendants are

not entitled to immunity for conduct of an employee that is wanton and/ or reckless.

II. STATEMENT OF FACTS

On November 12, 2013 at approximately 3:09 p.m. Engine 32 was dispatched from its

station on Gender Road in Columbus, Ohio to a fire alarm at Sedalia Elementary School. (MSJ at

Exhibit 2, Affidavit of Tyler Heisterkamp 1l7.) In response to the dispatch, Mr. Sheridan,

Firefighter Dave Stone, and Lieutenant Tyler Heisterkamp set off in Engine 32 towards Sedalia

Elementary. (Heisterkamp Aff. at 1[1l3~4.) Mr. Sheridan drove Engine 32. (MSJ at Ex. 1,

Affidavit of Paul Sheridan Per Mr. 1l3.) Sheridan and Let. Heisterkamp, when Engine 32 left the

station its emergency lights and electronic siren were activated. (Sheridan Aff. at 1T8;

Heisterkamp Aff. at 19.)

Upon leaving the station, Mr. Sheridan drove Engine 32 onto Refugee Road. (Sheridan

Aff. at 1ll0; Heisterkamp Aff. at 1110.) The speed limit on Refugee Road is 35 miles per hour.

(Sheridan Aff. at Mr. Sheridan 1i] 1.) recalls slowing down Engine 32 as he approached a slight curve on Refugee Road near the intersection of Brice Road and Refugee Road. (Sheridan Aff. at

1-12.) Yet, he also ill attests that while he was approximately 200 feet from the intersection of

Brice Road and Refugee Road, Engine 32 was travelling at about 35 miles per hour. (Sheridan

Aff. at1ll2-13.)

As Engine 32 approached the intersection there was noticeable heavy traffic. (Sheridan

Aff. at 1l16; Heisterkamp Aff. at 1ll 1.) Mr. Sheridan recalls that upon noticing the heavy traffic Franklin County Ohio Clerk of Courts of the Common Pleas- 2015 Dec 14 10:25 AM-14CV012117

he began to look at each oncoming lane of traffic for vehicles that were moving. (Sheridan Aff.

at 24.) Approximately 111116, 40 feet from the intersection, Mr. Sheridan pulled the air horn on

Engine 32 in short bursts to warn vehicles of the approaching engine. (Sheridan Aff. at 1117;

Heisterkamp Aff. at Mr. 1115.) Sheridan state nothing obstmcted his view of other vehicles at the

time Engine 32 approached the intersection. (Sheridan Affl at 1[1121,26.) Although the light for

Engine 32’s lane of travel on Refugee Road was red, Engine 32 did not stop at the red light.

(Sheridan Aff. at 1135-39; Heisterkamp Aff. at 1117.) Rather, because Mr. Sheridan and Let.

Heisterkamp perceived no vehicles in the intersection to be moving, Mr. Sheridan drove Engine

32 into the turn lane on Refiigee Road, and straight through the intersection without stopping.

(Sheridan Aff. at 1127-30; Heisterkamp Aff. at 1116.)

After entering the intersection, Engine 32 and a red vehicle operated by Ms. Glenn were

involved in an accident. (See Complaint at 11114-9; Sheridan Aff. at 1132.) Mr. Sheridan estimates

Engine 32 was traveling at approximately 35 miles per hour when the accident occurred.

(Sheridan Aff. at 1133.) However, Let. Heisterkamp recalls that seconds before the accident he

felt Mr. Sheridan hit Engine 32’s brakes. (Heisterkamp Aff. at 1119.) As soon as the accident occurred, Mr. Sheridan and others from Engine 32 went to assist Ms. Glenn. (Sheridan Aff. at

1134.) Following the accident, Let. Heisterkamp radioed dispatch for another engine to respond to the alan'n at Sedalia Elementary, (Heisterkamp Aff. at 1123.)

Although CFD Standard Operating Procedure 01-01-01 requires vehicles to comes to a complete stop at all red lights and only proceed against a red light with caution, Mr. Sheridan admittedly did not comply with that procedure upon entering the intersection. (Sheridan Aff. at

1135-39; Heisterkamp Aff. at 1117.) Despite the noncompliance, Mr. Sheridan attests that he did not enter the intersection with any design, intention, or desire to harm or injure anyone. Fmnklin County Ohio Clerk of Courts of the Common Pleas- 2015 Dec 14 10:25 AM-14CV012117

(Sheridan Aff. at Per the Amended 1140.) Complaint, Ms. Glenn died on November 19, 2013 as a

result of injuries she sustained in the accident with Engine 32. (Amend. Compl. at 118.)

The accident between the vehicle operated by Ms. Glenn and Engine 32 was heard and/

or witnessed by several individuals. Ms. Leslie Allmendinger, Mr. Brian Bendik, Mr. Keith

Castle, and Firefighter Donald Sulsburey are a few of these witnesses.

Immediately before the accident, Ms. Allmendinger was in a vehicle that was stopped at

the red light on Refugee Road near the intersection of Brice Road and Refugee Road. (MSJ at

Ex. 4, Affidavit of Leslie Allmendinger 112.) Ms. Allmendinger recalls that even though the

windows on her vehicle were up, she noticed a fire engine approaching her vehicle from the rear

because she heard the engine’s siren and horn and saw its emergency lights. (Allmendinger Aff.

at 11113-5.) She states that she observed the fire engine slow down as it passed her vehicle on the

lefi and enter the intersection. (Allmendinger Aff. at 18.) Upon seeing the fire engine pass her

vehicle, Ms. Allmendinger recounts that she looked forward into the intersection and saw that all

but one vehicle near the intersection stop moving. (Allmendinger Aff. at 118.) She states the

vehicle that did not stop collided with the approaching fire engine. (Allmendinger Aff. at 1110.)

Mr. Keith Castle also observed the accident involving Engine 32 from the inside of a vehicle he was driving. (MSJ at Ex. 6, Deposition of Keith Castle pp.5-6,16.) During depositions, Mr. Castle testified to the following:

* * *. I was coming through the town of Brice, so I was heading, I guess, south on Brice Road, coming through the light, it was green. I heard the distinct horn of a fire truck, that air horn that’s, you know what it is. It startled me, so once I was through the intersection I looked around because I didn’t know where it [i.e. the fire truck] was at and didn’t know which way to pull off the side of the road, so I was looking to see where it was at, and then in my rearview mirror that’s where I saw the impact.

— (Castle Depo. p.5 line 19 p.6 line 4.) Franklin County Ohio Clerk of Courts of the Common Pleas- 2015 Dec 14 10:25 AM-14CV012117

Mr. Castle stated that his driver’s side window may have been slightly down when he

first heard the fire truck horn. (Castle Depo. at p. 7.) He also testified that at the very most only

two to three seconds passed between the time when he first heard the fire truck horn and the

collision at issue occurred. - (Castle Depo. at p. 8 lines 2 8.) Despite hearing a fire truck horn,

Mr. Castle denied hearing any fire truck sirens. (Castle Depo. at p. 10 lines 14 - 25.) Immediately

following the impact, Mr. Castle recalled seeing the vehicle that was hit by the fire truck do a

360 degree spin and come to a rest in a nearby ravine. (Castle Depo. at p. I 1.)

Unlike Ms‘ Allmendinger and Mr. Castle, Mr. Bendik did not directly observe the

accident. On the date and time of the accident, Mr. Bendik was outside the back of a Family

Dollar store which was near the intersection of Brice Road and Refugee Road. (MSJ at Ex. 7,

Deposition of Brian Bendik pp.1-7.) He testified that while outside he heard a horn that he

thought was a fire truck horn and then heard a collision. (Bendik Depo. at p.6.) Upon hearing

that collision, Mr. Bendik stated he walked from the back of the Family Dollar and noticed that a

fire truck was involved in an accident with a small red vehicle. (Bendik Depo. at p.6.) Despite

hearing what sounded like a fire mick horn before the accident and seeing emergency lights on the fire truck after the accident, Mr. Bendik could not recall whether he ever heard a fire truck

siren. (Bendik Depo. at p.l 1.)

The affidavit provided by Mr. Sulsburey is consistent with the testimony of Mr. Sheridan and Let. Heisterkamp. (See generally, Sheridan Aff.; Heisterkamp Aff.; and MS} at Ex. 3,

Affidavit of Donald Sulsburey.) Mr. Sulsburey observed the accident at issue from Ladder 32, an emergency response vehicle of the CFD that was immediately behind Engine 32. (Sulsburey Aff. at Ladder 32 was 115.) approximately 300 feet behind Engine 32 at the time of the accident.

(Sulsburey Aff. at 1l8.) Mr. Sulsburey attests, albeit inconsistently to the following: “I witnessed

5 Franklin County Ohio Clerk of Courts of the Common Pleas- 2015 Dec 14 10:25 AM-14CV012117

all vehicles at the intersection of Brice Road and Refugee Road stopped at the intersection when

Engine 32 approached the intersection. I did not witness the small sedan [i.e. Ms. Glenn’s

vehicle] traveling southbound on Brice Road come to a complete stop at the intersection."

(Sulsburey Aff. at j]9.)

Although there are some obvious inconsistencies, Defendants nonetheless argue they are

entitled to summaryjudgment.

II. STANDARD OF REVIEW

Summary judgment is appropriate only when the moving party demonstrates (1) no

genuine issue of material fact exists, (2) the moving party is entitled to judgment as a matter of

law, and (3) reasonable minds could come to but one conclusion and that conclusion is adverse

to the party against whom the motion for summaryjudgment is made, that party being entitled to

have the evidence most strongly construed in its favor. Civ. R. 56(C); State ex rel, Grady v. State

Emp. Relations Bd., 78 Ohio St. 3d 181, 183, 1997—Ohio-221 (1997).

Pursuant to Civ. R. the moving 56(C), party bears the initial burden of infonning the trial

court of the basis the for motion and identifying those portions of the record demonstrating the absence of a material fact. Dresher v. Burt, 75 Ohio St.3d 280, 293, 1996-Ohio~107 (1996).

However, the moving party cannot discharge its initial burden under this mle with a conclusory assertion that the nonmoving party has no evidence to prove its case; the moving party must specifically point to evidence of the type listed in Civ. R. 56(C) affirmatively demonstrating that the nonmoving party has no evidence to support the nonmoving party's claims. Id.; Vahila v.

Hull, 77 Ohio St.3d 421, 429, 1997- Ohio-259, (1997). Once the moving party discharges its initial burden, summary judgment is appropriate if the nonmoving party does not respond, by Franklin County Ohio Clerk of Courts of the Common Pleas- 2015 Dec 14 10:25 AM-14CV012117

affidavit or as otherwise provided in Civ. R. 56, with specific facts showing that a genuine issue

exists for trial. Dresher at 293; Vahila at 430; Civ. R. 56(E).

III. LEGAL ANALYSIS

“Under Ohio’s Political Subdivision Tort Liability Act, codified under R.C. Chapter

2744, a ‘three-tiered analysis’ is used to deten-nine whether a political subdivision is entitled to

immunity from civil liability.” Hopkins v. Columbus Bd. of Educ, 10th Dist. No. 07AP-700,

2008-Ohio-1515, 1ll2 (quoting Aratari v. Leetonia Exempt Village School Dist., 7th Dist. No. 06

CO 11, 2007~Ohio-1567, “The fllé). first tier, R.C. 2744.02(A), ‘grants broad immunity to

political subdivisions.” “In Id. (quoting Aratari at 1ll6). this respect, R.C. 2744.02(A)(l) states

in part: ‘Except as provided in division (B) ofthis section, a political subdivision is not liable in

damages in a civil action for injury, death, or loss to person or property allegedly caused by any

act or omission of * * * the political subdivision or an employee in connection with a

governmental or proprietary function.” Id.

“However, the immunity established under R.C. 2744.02(A) is not absolute; rather, under

the second-tier of analysis, ‘one of five exceptions set forth in RC. 2744.02(B) may serve to lift the blanket of general immunity.” Id. at fi[13 (quoting Amtari at f[16). If one of the exceptions apply, then “under the third tier of the analysis, immunity may be ‘revived’ if the political subdivision can demonstrate the applicability of one of the defenses found in RC. 2744.03(A)(1) through (5).” Id at 1114 (quoting Aratari at 1116).

In the case sub juice, there is no dispute that the City of Columbus is a political subdivision engaging a in govemmental fiinction. There is also no dispute that Mr. Sheridan was at all times relevant an employee of the City of Columbus. As those facts are undisputed, the Franklin County Ohio Clerk of Courts of the Common Pleas- 2015 Dec 1410:25 AM-14CV012117

Court finds the of City Columbus is entitled to general immunity under the first tier of the

immunity analysis.

Under the second tier, the Court is required to determine whether any exceptions to

immunity exist. The parties agree that the only potential exception to the City of Columbus’

immunity is R.C. 2744.02(B)(l). Where the parties disagree is with regards to whether the

defense under RC. 2744.02fl3)(1)(b) applies to fully reinstate immunity.

R.C. “* * * 2744.02(B)(l) sets forth the following general rule: political subdivisions are

liable for injury, death, or loss to person or property caused by the negligent operation of any

motor vehicle their by employees when the employees are engaged within the scope of their

employment and authority.” However, even if the general mle applies, a political subdivision has

a full defense to that liability if any exceptions set forth under R.C. 2744.02(B)(l)(a) through (c)

apply. See Smith v. McBride, 130 Ohio St. 3d 51, 2011-Ohio-4674, 955 N.E.2d 954, 1ll4 (citing

Colbert v. Cleveland, 99 Ohio St.3d 2003-Ohio—33 215, I 9, 790 N.E.2d 781,118).

Pursuant to R.C. 2744.02(B)(1)(b) it is a full defense to liability if another is injured by

“[a] member of a municipal corporation fire department or any other firefighting agency [who] was operating a motor vehicle while engaged in duty at a fire, proceeding toward a place where a

fire is in progress or is believed to be in progress, or answering any other emergency alarm and the operation of the vehicle did not constitute willful or wanton misconduct.” See also Anderson v. City 0fMassillon, 134 Ohio St.3d 380, 2012-Ohio-5711, 983 N.E.2d 266, ‘|l2.

Unlike the three tiered analysis applicable to a political subdivision, an employee of a political subdivision is generally immune from liability unless it can be shown that the employee’s “acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner." R.C. §2744.03(A)(6). Franklin County Ohio Clerk of Courts of the Common Pleas- 2015 Dec 14 10:25 AM-14CV012117

Because it is undisputed that Engine 32 was responding to an alarm at Sedalia

Elementary at the time of the accident Defendants argue R.C. 2744.02(B)(1)(b) applies to protect

them from liability. (MSJ at p.8.) Plaintiff, on the other hand argues, R.C. 2744.02(B)(1)(b) does

not apply because a genuine issue of material fact exists about whether Mr. Sheridan committed

wanton and/ or reckless misconduct in his operation of Engine 32. (Memo. Opp at p. 5.) In light

of their assertion that have they a full defense to liability, the City of Columbus does not make a

third tier immunity argument at this time. (MSJ at p. 7, fn. 1.)

It is well established that the violation of a statute, ordinance, or departmental policy

enacted for the safety of the public is not per sz wanton or reckless conduct. Anderson, 134 Ohio

St.3d at (emphasis 1140 added). Rather, that information may be relevant for the purpose of

determining the culpability of a course of conduct. Id. (citations omitted). Wanton and reckless

misconduct are not expressly defined in RC. 2744, however, in Anderson v. City ofMassi1Ion,

the Supreme Court of Ohio distinguished the two.

“Wanton misconduct is the failure to exercise any care toward those to whom a duty of

care is owed in circumstances in which there is great probability that harm will result.” Id. at 1133

(citing Hawkins v. Ivy, 50 Ohio St.2d 114, 117-118, 363 N.E.2d 367 (1977); and Blackk Law

Dictionary 1613-1614 (8th Ed. 2004)(explaining that one acting in a wanton manner is aware of

the risk of the conduct but is not to trying avoid it and is indifferent to whether harm results)).

“Reckless conduct is characterized by the conscious disregard of or indifference to a known or obvious risk of harm to another that is unreasonable under the circumstances and is substantially greater than negligent conduct.” Id. at 1134 (citing Thompson v. McNei[l, 53 Ohio

St.3d 102, 104-105, 559 N.E.2d 705 (1990); and Black's Law Dictionary 1298-1299 (8th Ed.

2004) (explaining that reckless conduct is characterized by a substantial and unjustifiable risk of Franklin County Ohio Clerk of Courts of the Common Pleas- 2015 Dec 14 10:25 AM-14CV012117

harm to others and a conscious disregard of or indifference to the risk, but the actor does not

desire harm)).

The terms “wanton” and “reckless” as used in R.C. 2744 are not interchangeable. Id. at

(emphasis 1140 added). Moreover, because the line between willful, woman, or reckless

misconduct, and ordinary negligence can be a fine one, courts generally submit the issue of

whether conduct was willful, wanton, or reckless to ajury when reasonable minds might differ as

to the import of the evidence. Hunter v. City of Columbus, 139 Ohio App. 3d 962, 970, 746 NE.

2d 246 (10th Dist. 2000). See also Osler v. Lorain, 28 Ohio St.3d 345, 350, 504 N.E.2d 19

(1986); Hawkins, 50 Ohio St. 2d at 117; and Tighe v. Diamond, 149 Ohio St. 520, 528-530

(1948).

In Hunter v. City of Columbus, the Tenth District reversed and remanded a trial court

decision granting defendants summary judgment on the basis of R.C. 2744. The court reasoned

genuine issues of fact existed about whether a fire tmck driver’s conduct was willful, women, or

reckless where the evidence demonstrated that the driver drove the fire truck at a high rate of

speed well above posted speed limits, and into the center of a street without slowing down or

complying with internal CFD speed rules designed to protect other motorists. Hunter, 139 Ohio

App. 3d at 970-971. Although it was relevant that the driver had the sirens on the fire truck operating at the time of the accident, the court found that the use of sirens, in and of itself, was not enough to establish that the truck driver exercised due care. Id

Unlike Hunter, in Byrd v. Kirby, 10th Dist. N0. 04AP—45l, 2005-Ohio-1261, the Tenth

District affirmed a lower court’s decision granting defendants summary judgment on the basis of

R.C. 2744 immunity. In that case, the defendant police officer was responding to an emergency call when an accident between the officer’s cruiser and the decedent plaintiffs vehicle occurred.

10 Franklin County Ohio Clerk of Courts of the Common Pleas- 2015 Dec 14 10:25 AM-14CV012117

The court reasoned there was no genuine issue of fact for trial because the undisputed evidence,

even when viewed in a light favorable to the plaintiff, established that the responding officer

drove his cruiser a mere ten miles over the posted speed limit, had the cruiser lights flashing,

siren on, and slowed as he approached the intersection where the accident occurred. Id at 1128.

Defendants assert this case is more akin to Byrd rather than Hunter because there is no

evidence that Mr. Sheridan acted unreasonably or created an unreasonable risk of harm by his

operation of Engine 32. In support of this assertion, Defendants direct this Court’s attention to

the following facts: (1) the speed of Engine 32 at the time of the collision was approximately 35

miles per hour, Engine 32 travelled (2) within posted speed limits as it approached the

intersection, Mr. (3) Sheridan took steps to ascertain whether any vehicles in the intersection

were moving before proceeding through it, and (4) Mr. Sheridan testified that he did not

consciously disregard a known risk to other motorists in driving through the intersection.

Plaintiff disagrees with Defendants’ understanding of the facts and asserts this case is

factually similar to Hunter because of the following: (1) Mr. Sheridan admitted that he failed to

comply internal CFD Standard Operating Procedure 01-01-01 which is designed to protect

motorists, there is a factual (2) dispute about whether Engine 32 had its sirens on before the

accident, there (3) is a factual dispute about whether Engine 32 actually slowed before entering the intersection, and Engine 32’s (4) speed, even though within the posted limits, was unsafe in light of the known heavy traffic at the intersection. The Court also notes that Plaintiff raises issues of facts concerning CFD’s enforcement of Procedure 01-01-01, and Mr. Sheridan’s training and driving history.

Upon review of all the evidence presented, the Court agrees with Plaintiff that this case is factually similar to Hunter. Similar to Hunter, it is undisputed that Mr. Sheridan did not comply

11 Franklin County Ohio clerk of Courts of the Common Pleas- 2015 Dec 14 10:25 AM-14CVD12117

CFD with Procedure 01-01-01 which is designed to protect motorists. Although Engine 32 was

not speeding, a genuine issue of fact exists about whether the engine’s speed was reasonable in

light of known heavy traffic. Also, given the conflicting evidence about whether Engine 32 had

its sirens on and slowed before entering a busy intersection it is unclear whether Mr. Sheridan

operated any just care in driving Engine 32. This uncertainty is heightened in light of the

testimony from the independent witness Mr. Castle, which suggests Engine 32 blew its air horn a

mere two to three seconds before entering the intersection and did not sufficiently warn him of

the direction it was approaching before proceeding through the intersection at issue.

In construing the facts in a light most favorable to Plaintiff, the Court finds reasonable

minds could differ in opinion about whether Mr. Sheridan operated Engine 32 in a wonton and/

or reckless manner.

IV. CONCLUSION

For the foregoing reasons, the Court cannot find the City of Columbus is entitled to the

immunity defense codified within R.C. 2744.02(B)(1)(b), or that Mr. Sheridan is immune from

liability under RC. 2744.03(A)(6). Defendants’ Motion for Summary Judgment is DENIED.

There is no just cause for delay. Pursuant to Civ. R. 58, the Clerk of Courts shall notify all parties of the existence of entry and its date of entry upon the journal.

So ordered.

Copies to:

All counsel & parties (Electronically)

12 Franklin County Ohio Clerk of Courts of the Common Pleas- 2015 Dec 14 10:25 AM-14CV012117

Franklin County Court of Common Pleas

Date: 12-14-2015

Case Title: WILLIAM R GLENN INDV ET AL -VS— COLUMBUS CITY ET AL

Case Number: 14CV012117

Type: DECISION/ENTRY

It Is So Ordered.

/s/ Judge Stephen L. McIntosh

Electronically signed on 20I5—Dec»14 page 13 0113 Franklin County Ohio Clerk of Courts of the Common Pleas- 2015 Dec 14 10:25 AM-14CV012117

Court Disposition

Case Number: 14CV012117

Case Style: WILLIAM R GLENN INDV ET AL —VS- COLUMBUS CITY ET AL

Motion Tie Off Information:

1. Motion CMS Document Id: 14CV0121172015-09-1799900000 Document Title: 09—17~2015—MOTION FOR SUMMARY JUDGMENT - DEFENDANT: PAUL SHERIDAN Disposition: MOTION DENIED

2. Motion CMS Document Id: 14CV0121172015-09-1799910000 Document Title: 09~17-2015—MOTlON FOR SUMMARY JUDGMENT - DEFENDANT: COLUMBUS CITY Disposition: MOTION DENIED