On February 7, the Supreme Court of Ohio heard oral argument in Burlingame v. Burlingame, 2011-742, the first of two cases on the kind of evidence that will defeat the immunity of a city and its firefighter employee for causing a fatal accident on the way to a fire. The second case, Estate of Anderson v.Massillon, heard on Feb 8, will be analyzed in my next post.
The day of the accident,Canton firefighter James Coombs was driving a fire truck on an emergency run. Traffic lights in the City of Canton 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 Coombs’ fire truck approached the intersection, its siren stopped working. The firefighter in the passenger seat warned Coombs to slow down and to use the air horn to alert motorists. Coombs, who thought the light was green, continued to drive the truck through the intersection at 40mph. As the Burlingames pulled out into the intersection when their light turned green, Coombs tried to swerve, but struck the van as it was waiting to turn left. Dale was killed instantly, and Grace died later from her injuries.
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. 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 issue in the case is whether failure to follow internal departmental policies or the violation of traffic safety statutes can be taken into account in determining whether a public employee was reckless, willful or wanton, and thus not entitled to immunity under Chapter 2744. Read the oral argument preview of this case here.
Counsel for the city argued that first responders must be given leeway when responding to an emergency. That is why they are immunized from liability for conduct short of reckless, willful or wanton behavior. In this case there was no evidence from which recklessness—or worse– could be inferred. Neither traffic safety statutes, nor internal policies can be used to define the contours of willful, wanton, and reckless conduct under Chapter 2744. Internal standards are often higher than what is required under the statute to define the contours of recklessness, and are used for different purpose. Allowing their use to defeat immunity will force cities to abandon them. This case is just about a firefighter who accidentally ran a red light on the way to a house fire.
Counsel for Grace Burlingame’s personal representative (Grace’s counsel) argued that Coombs’ actions were more than simple negligence. When looking at the totality of the circumstances, there was sufficient evidence for the jury to conclude that his actions were willful, wanton and reckless. Violation of internal policies and traffic statutes are part of the totality of those circumstances. Department policy required the driver to stop at all red lights when the siren wasn’t working, and to drive as if there was no emergency. Firefighters were also supposed to stop at red lights even on emergency runs. Coombs knew these policies and violated them.
Counsel for Dale Burlingame’s personal representative (Dale’s counsel) argued that historically courts have used the terms willful, wanton, and reckless interchangeably. Recently, the Ohio Supreme Court has defined those terms as a disposition to perversity. He proposed this test to distinguish conduct that will defeat immunity from simple negligence: whether objectively the actor knows that in all probability his actions will result in a substantial likelihood of injury. That clearly was the case here.
The Justices asked a lot of questions about the facts in the case. All parties to this case agreed that the siren on the firetruck was not working as it approached the intersection, the light was red (Canton later conceded this after the traffic engineer testified, but maintains that Coombs thought it was green at the time he went through it), and that the airhorn does not trigger the pre-emption system.
What exactly was the evidence here to defeat summary judgment on immunity?
Justice McGee Brown asked whether there were any facts other than violation of internal policies and traffic laws to form the basis of liability here. If the Court were to allow the use of this evidence wouldn’t that discourage cities from having these kinds of policies that would otherwise protect the public?
Justice Pfeifer asked why the fact that the system wasn’t working, the firefighter ran the red light, and swerved left of center wasn’t enough to get past summary judgment, at least as to Coombs.
Are Internal Policies and Traffic Statutes Totally Irrelevant ?
Justice McGee Brown asked if rather than making internal policies and traffic statutes totally irrelevant, they could just be factors in the overall immunity determination?
Wasn’t this Just a Case of Simple Negligence?
Justice Stratton pressed Grace’s counsel how she got to willful and wanton conduct from what sounded like simple negligence in running a red light.
Chief Justice O’Conner asked the city’s lawyer if there was any need for him to address willful, wanton, or bad faith? (answer: no) She then asked if he would be in a different position if instead of thinking the light was green, the firefighter knew it was red when he ran the light? (yes, a tougher position, but not indefensible.)
What About Dale Burlingame’s Responsibility Here
Chief Justice O’Connor asked about what Dale Burlingame’s responsibility was here. He hears airhorns, sees lights flashing, and knows another emergency vehicle has just gone through the intersection. When Dale’s counsel tried to suggest he might not know what an airhorn meant (as opposed to a siren) her incredulity showed.
(note from a torts professor—comparative negligence is not a defense to reckless, willful or wanton misconduct. )
What is Willful, Wanton, or Reckless Conduct?
Justice O’Donnell asked Grace’s lawyer a series of questions on the different standards to defeat immunity for a political subdivision and for an employee. (For a political subdivision the statutory language is willful or wanton misconduct, but for an employee, the language is malicious purpose, bad faith, or in a wanton or reckless manner. This distinction is at the heart of the case argued the day after this one, Estate of Anderson v. City of Massillon). She seemed totally unaware of the next day’s case, stating that she thought the standards for employees and political subdivisions were the same. When Justice O’Donnell asked why the legislature would use two different standards if they all meant the same thing, she answered it was just trying to determine what could defeat absolute immunity. Her co-counsel helped her out some here by revisiting that question, and supplying an answer. Finally, in rebuttal, the city’s lawyer cleaned this up, and gave the correct answer about the different standards for a political subdivision and its employee, acknowledging his awareness of the next day’s case (good lawyering there!) but asserting that this distinction was not relevant in deciding this case.
And now for a brief moment of bad lawyering. When Dale’s lawyer began his argument he referred to Justice O’Donnell as Justice Sweeney. Whenever I work as an appeals consultant to lawyers, I always recommend that they not try and call the justices by name…Remember in Bush v. Gore when Katherine Harris’ lawyer called Justice Stevens Justice Brennan, then later called Justice Souter Justice Breyer? When all else fails, just try your honor.
Justice Lanzinger asked if willful and wanton is a subjective or objective standard, and whether malice and bad faith were defined in the statute.
Justice Stratton asked if the Burlingames were saying the firefighter deliberately ran the light? Was that reckless indifference? If we were to accept that standard, won’t almost every case go to a jury? (which defeats the purpose of immunity). And weren’t they looking at the consequences of the behavior, not the causes?
How it Looks from the Bleachers
Chief Justice O’Connor and Justice Stratton clearly seemed skeptical that the conduct in this case was anything beyond simple negligence, or that there was any evidence in the case other than traffic statutes and departmental policies to defeat summary judgment. And yet it is troubling that under the Canton policy if the siren isn’t working, the driver must stop at all red lights and drive as if there was no emergency. Firefighters were also supposed to stop at red lights even on emergency runs. That evidence is surely probative of recklessness. For some reason, to me, the arguments on behalf of the Burlingames didn’t seem effective on these points. And I think that both should have concentrated just on recklessness, and stayed away from willful, wanton or malicious conduct—and especially stayed away from language like “perverse disregard.” The court of appeals made a very nuanced decision in this case, and I didn’t feel counsel for either Burlingame did it justice. One of Justice McGee Brown’s early questions may be the way out—rather than declaring departmental policies and traffic statutes as totally irrelevant to the immunity question, they may be factors to apply in a totality of the circumstances test. Still, that would be a big step, and I’m not sure a majority is ready to do that. Justice Pfeifer seemed ready to let the jury make the call on these facts, and he may have some allies on this.
Here’s the take of Greg Kendall, the student contributor who worked on the preview of this case. He thought neither side really made a clear argument on the central issue–whether the violation of departmental policies can constitute recklessness. He thought both sides were just arguing about whether there was enough evidence to defeat summary judgment, which only becomes relevant once the question of whether the violation of policy is proper evidence is answered. He found the city’s argumenti in its brief more persuasive, that if departmental policy can be used against a city to defeat immunity, cities will have an interest only in holding themselves to the statutory minimum instead of enacting stricter safety policies. I’m certain some of the justices will agree with this (editor’s note–in fact, the more I think about this, I think a majority will go this way)