Oral Argument Preview: More on Defining Recklessness so as to Defeat Sovereign Immunity. Estate of Anderson v. City of Massillon.

Update: On December 6, 2012, the Supreme Court handed down a merit decision in this case. Read the analysis here.

On February 8, the Ohio Supreme Court will hear oral argument in the case of Estate of Anderson v. City of Massillon, 2011-0743. The issue in this case is whether excessive speed is a factor in determining whether a firefighter was reckless or wanton in causing an accident and therefore unable to claim immunity.  This issue is similar to the one the Court is hearing on Feb 7 in Burlingame v. Estate of Burlingame—what kind of evidence can be used to show that a city employee is reckless, and thus not entitled to immunity under R.C. 2744.  Both cases deal with firefighters driving trucks on the way to a fire.

The City asks the court to adopt these proposition of law:

1. A member of a municipal fire department operating a fire truck in response to an emergency call is entitled to the presumption of immunity from liability, and the high standard for demonstrating recklessness under  R.C. 2744.03(A)(6)(b), is not satisfied by evidence that the fire truck enters an intersection at a rate of speed in excess of the speed limit.

2. The General Assembly did not include “reckless” conduct in R.C. §2744.02(B)(1)(b) and, thus, absent evidence demonstrating a question of fact as to “willful or wanton misconduct,” a political subdivision is entitled to immunity from liability for an accident involving a fire department vehicle while on an emergency run.

In 2008, Ronald Anderson and his grandson Javarre Tate pulled out into an intersection in Massillon,OH. The intersection had a three-way stop with a flashing red light, and various obstructions such as trees prevented a full view of the intersection. At the same time, a fire truck driven by firefighter Susan Toles approached the intersection with lights, siren and air horn engaged traveling at 52-mph in a 25-mph zone. The truck collided with Anderson’s car, killing both Anderson and his grandson.

Cynthia Anderson, the administrator of both estates, brought a wrongful-death action against Toles and the City. The defendants moved for summary judgment, raising the defense of sovereign immunity. The trial court granted the motion, and the plaintiff appealed. The Fifth District Court of Appeals reversed and remanded for trial, finding that reasonable minds could differ as to whether firefighter Toles acted recklessly (so as to lose immunity). The Court of Appeals specifically noted both Toles’ high speed and the obstructed view of the intersection in making this finding.

The defendants appealed to the Supreme Court of Ohio. Under R.C. 2744.02(B)(1)(b), the sovereign immunity statute for cities,  a city is immune from liability unless its employee’s conduct on an emergency run is willful or wanton. Under R.C. 2744.03(A)(6)(b), employees are entitled to immunity unless their conduct is done with malicious purpose, in bad faith, or in a wanton or reckless manner.

The defendants argue that the immunity section that applies to cities includes liability only for willful and wanton, not reckless conduct, of which there is no evidence here.  As for the individual firefighters, they argue that an emergency vehicle traveling at a rate of speed in excess of the posted speed limit through an intersection is not sufficient to satisfy the standard for reckless conduct required to defeat employee immunity. To meet that standard, the party seeking to defeat immunity must prove a “perverse disregard of a known risk” as adopted by the Court in O’Toole v. Denihan, 118 Ohio St.3d 374, 2008-Ohio-2574. This is a very high standard which the plaintiff clearly did not meet in this case.

Anderson argues the controlling authority on this point is  Thompson v. McNeill, 53 Ohio St.3d 102, (1990), in which the Court adopted the Restatement definition of reckless, using the term interchangeably with “willful” and “wanton”, and should continue to do so. These words mean that a reasonable person would realize that his or her conduct creates an unreasonable risk of harm to another, and the risk is substantially greater than simple negligence. The “perverse disregard” language from O’Toole is not required to prove recklessness and not required by the Restatement. Excessive speed is one of many factors that can be considered in evaluating whether the defendants acted recklessly, and was not the only evidence of recklessness in this case.Anderson argues that if the General Assembly wanted to exempt excessive speed from the calculation of what constitutes reckless and wanton conduct, it could have done so, but did not.

Under the totality of the circumstances approach urged by Anderson, operating the vehicle at its top speed, through a blind intersection in a residential neighborhood, knowing that they were the second vehicle to be dispatched to the scene and violating numerous traffic codes, local policies and accepted practices, there were genuine issues of material fact here, and the plaintiffs were entitled to a jury trial.

Student Contributor: Greg Kendall

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