Update: On December 5, 2012, the Supreme Court handed down a merit decision in this case. Read the analysis here.
Also of interest: Read in Sharper Focus post on Recklessness here.
On February 8, the Supreme Court of Ohio heard oral argument in Estate of Anderson v. City of Massillon, 2011-0743. The issues in this case are similar to the ones the Court heard the day before in Burlingame v. Estate of Burlingame. Both cases involved firefighters who caused fatal accidents while on emergency runs. The Anderson case really homed in on the difference between the wanton or reckless conduct required to defeat immunity for a city employee under R.C. 2744.03(A)(6)(b) (editors note—employees also lose immunity if they act maliciously or in bad faith, but no one is alleging that here) and the “willful or wanton” conduct that must be shown to impose liability on a political subdivision under R.C. §2744.02(b)(1)(b) for third-party damages caused by a firefighter on an emergency run. Read the preview of the Anderson case here.
What’s on Their Minds?
At issue in this case is whether reckless, willful and wanton are functional equivalents and can be used interchangeably to defeat immunity, both for individual employees and the city itself. Most of the oral argument was spent on trying to answer this question.
The city’s lawyer argued that while the case law does suggest that the terms are used interchangeably, that is contrary to what statutory construction requires. The subsection of the immunity statute that imposes liability on the political subdivision for the acts of its employees (respondeat superior liability) does not include the word “recklessness” at all. So a political subdivision should not be vicariously liable for conduct that is simply reckless. He also sees recklessness as something lesser than wantonness, which is in turn lesser than willful behavior. He argues that both the city and the firefighters are entitled to immunity in this case. He asks the Court under this limited circumstance—firefighters on an emergency run—to merge the two statutory provisions and indicate that if there is a finding of a lack of willful or wanton conduct by the operator, that would also insulate that operator from any claim for recklessness. Otherwise, the whole purpose of immunity is defeated.
Cynthia Anderson’s lawyer argued that under existing precedent, as well as the Restatement, willful, wanton, and reckless are used interchangeably and are functional equivalents. But even if the Court were to find wanton conduct to be more serious than reckless conduct, the plaintiff has more than enough facts to defeat immunity under either standard, and to hold both the individual firefighters and the city liable.
What Do the Words Willful, Wanton and Reckless Mean?
Justice O’Donnell asked if recklessness was lesser than wanton conduct.
Justice Lanzinger asked for an example of conduct on an emergency run that would be reckless, as contrasted with wanton, or wilful? Is wantonnness recklessness intensified? Is recklessness a lesser degree of culpability?
Justice Stratton pulled out Black’s law dictionary and read the definitions of the three terms, which were clearly not the same, challenging Anderson’s lawyer to give his legal definitions of these words. And if he really thought they were the same, why would the legislature use two different standards in the statute? Did the Court need to refine its own interpretation of these terms to conform its definitions to legislative intent?
Chief Justice O’Connor asked if recklessness meant a unreasonable risk coupled with a high probability of injury
What About Traffic Statues and City Ordinances?
Justice O’Donnell asked if traffic law require fire trucks to stop at red lights (answer-no, but a city ordinance requires a duty to slow down and department policy requires a complete stop at a blind intersection.) He then asked whether these factors were relevant to the conduct of the employee or the city?
Is the City Liable Here?
Justice O’Donnell wanted to know if the city was independently liable, or just liable for indemnification?
What About Malice or Bad Faith?
Justice Lanzinger wanted to know if any of these were implicated in an emergency run. Or just recklessness?
What About Respondeat Superior Liability?
Justice O’Donnell asked that if recklessness is different from wanton conduct, and the employees are reckless, does the city have any vicarious liability under respondeat superior?
What About Indemnity if the City isn’t Liable?
Justice Cupp said he wanted to explore the indemnity issue. If the city wasn’t found liable based on respondeat superior, but the individual employees were, the city was required to indemnify the employees. (editor’s note–the duty of indemnification is codified at R.C. 27744.07(A)(2)) Was that dollar for dollar, or were there collateral source or other-insurance-exhaustion issues involved.
How it Looks from the Bleachers
Under the Court’s jurisprudence, reckless, willful, and wanton standards of conduct have been treated as interchangeable and functional equivalents. A majority of the Court—if not all the justices–now seem ready to change that and give each a separate meaning, on a sliding scale with recklessness the least culpable and willful the most. This Court is not likely to ignore the fact that the legislature enacted different standards for emergency-run tort immunity for individual employees and for political subdivisions. The Court got so completely swept up with these definitions that it focused very little on the specific facts of the case, and did not deal at all with the issues it dealt with in Burlingame about the appropriate use of departmental policies and traffic safety laws in the determination of recklessness. But it seems as if the plaintiff in this case has far more evidence than the plaintiff in the Burlingame case to defeat summary judgment on the issue of at least recklessness.