On February 7, the Supreme Court of Ohio will hear oral argument in the case of Burlingame v. Estate of Burlingame. The Court has accepted the following propositions of law for review:
1. A violation of internal department policy is not relevant to whether the actions of an employee of a political subdivision are willful, wanton, or reckless under R.C. 2744.
2. A violation of traffic statutes is not relevant to whether the actions of an employee of a political subdivision are willful, wanton, or reckless under R.C. 2744.
The issue in this case is whether the City of Canton and firefighter James Coombs are entitled to immunity for the accident that killed both Grace and Dale Burlingame. Generally, a city and its employees are immune from liability for injuries resulting from the operation of a vehicle in response to an emergency call, unless the employee’s actions are recklessness, willful, or wanton.
In 2007, Grace and Dale Burlingame were in their van in Canton when they were struck by a fire truck driven by firefighter James Coombs on the way to a house fire. The truck, traveling about five miles over the speed limit, ran a red light and struck the van as it was waiting to turn left in an intersection. Dale was killed instantly, and Grace died later from her injuries.
Canton’s traffic lights use a “preemption system” that overrides the normal traffic light pattern and gives emergency vehicles the priority for green lights. This system is activated by the sound of the vehicle’s siren. As the fire truck approached the intersection, the truck’s siren stopped working. In such situations, Canton firefighters are trained to stop at red lights and drive as though there were no emergency. The firefighter next to Coombs in the passenger seat warned Coombs to slow down and use the air horn to alert motorists. Coombs continued to drive the truck through the intersection at 40mph. As the Burlingames pulled out into the intersection when their light turned green, Coombs attempted to avoid hitting their van by swerving left of center.
Grace Burlingame (her personal representative was later substituted as a party) sued the personal representative of Dale’s estate, the City of Canton, the Canton City Fire Department, James Coombs and Motorists Insurance Group. Dale’s personal representative cross-claimed against the other defendants for Dale’s wrongful death. The City, the Fire Department and Coombs asserted affirmative defenses under R.C. 2744, and cross-claimed against the Estate of Dale Burlingame, claiming that Burlingame caused the accident himself through his own negligence.
Under R.C. 2744.02(B)(1)(b), a political subdivision is immune from liability if “a member of a municipal corporation fire department… was operating a motor vehicle while engaged in…answering any other emergency alarm and the operation of the vehicle did not constitute willful or wanton misconduct.” Under R.C. 2744.03(A)(6)(b), an employee of a political subdivision is immune unless “the employee’s acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner.”
At trial, the plaintiff’s experts opined that Coombs knew or should have known that his manner of driving the truck without the working siren caused a substantial risk of harm to the public, and that Coombs acted willfully, wantonly and recklessly in driving the truck. The trial court granted summary judgment to the defendants, finding that Coombs was “negligent at best” and was entitled to immunity as a matter of law.
On appeal, the Fifth District Court of Appeals reversed, finding that a violation of departmental policy or traffic laws may be a factor in determining whether a political subdivision employee is entitled to immunity under R.C. 2744. The case was remanded to allow a jury to decide whether Coombs was reckless. Canton and Coombs appealed to the Ohio Supreme Court.
Appellants Canton and Coombs argue that while an employee’s violation of departmental rules and guidelines may be relevant to a disciplinary determination, it is not relevant to a determination of whether the employee was reckless. For support, they cite to cases where federal courts have rejected the use of departmental rules to prove constitutional violations in § 1983 cases. Furthermore, because departmental rules and policies change frequently and vary among different jurisdictions, they are an unreliable source by which to measure the reasonableness of conduct. Appellants argue that using departmental rules would allow political subdivisions to determine the scope of state law, and would encourage political subdivisions to adopt lax policies to prevent those policies from being used against cities or their employees in litigation.
Appellants also argue that the violation of a traffic statute is not relevant to a determination of whether an employee of a political subdivision is reckless. R.C. 4511.03, which allows drivers of emergency vehicles to disobey red lights or stop signs as long as they slow down and proceed with caution, but penalizes them if they do not, does not apply to statutory immunity to firefighters. Although EMTs are immune as long as they comply with this statute, the General Assembly did not include this statute in the requirements for immunity of firefighters and police officers.
In response, Appellees argue that a determination of whether an employee’s conduct was reckless, wanton or willful must be based upon the totality of the circumstances, including whether the employee violated a traffic safety statute or internal departmental policies and procedures intended to protect the public.
The Ohio Association for Justice has filed an amicus brief in support of Appellees. It argues that summary judgment was improperly granted in the case. Whether the firefighter’s conduct was reckless, wanton or willful in this case is clearly a question of fact to be determined by a jury based on the totality of the circumstances.
The Ohio Municipal League has filed an amicus brief in support of the City of Canton, urging the adoption of the City’s propositions of law.
Student Contributor: Greg Kendall