Merit Decision. The Court Defines “Willful” “Wanton” and “ Reckless.” Anderson v. Massillon.

Further update: Read what happened to this case on remand here.

On December 6, 2012, the Supreme Court handed down a merit decision in Anderson v. Massillon, 2012-Ohio-5711. In a 5-2 decision written by Justice O’Donnell, the Court defined the terms “willful,” “wanton,” and “reckless,” and held that the terms are not interchangeable. This definitional differentiation arose in the context of political subdivision immunity. Justice Lanzinger concurred in part, but mostly dissented.  She was joined by Justice Pfeifer.  The case was argued February 8, 2012.  There’s a lot to this one, (I would say this, since I teach torts) so it’s a long post. There is a really interesting difference of opinion between the majority and the dissent.

To get up to speed quickly on this issue, read this in sharper focus post on recklessness.

Case Background

One May morning a citizen called 911 to report a car fire in Massillon Ohio. The fire dispatcher first dispatched Engine 214, a pumper truck, then Engine 211, an aerial ladder truck. When reaching the intersection where this accident occurred, Engine 214 slowed down to be sure the intersection was clear before going through it.  Ronald Anderson, who was taking his grandson Javarre Tate to preschool, approached the intersection from the south, stopped his minivan at the stop sign, and waited for Engine 214 to pass. Seconds later, Engine 211, driven by Susan Toles and commanded by Rick Annen approached the intersection going significantly in excess of the speed limit.  Toles slowed down as she approached a school bus that had stopped past the intersection, but didn’t see Anderson’s minivan, which had entered the intersection.  The fire truck broadsided the van, killing both Anderson and Tate.

Cynthia Anderson, the administrator of both estates, brought a wrongful-death action against Toles, Annen, and the City. Each side presented experts on accident reconstruction.  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, finding that reasonable minds could differ about whether Toles and Annen were reckless, and thus not entitled to immunity.  The appeals court also held that the “wanton and reckless” misconduct standard set forth in R.C. 2744.03(A)(6) were functionally equivalent to the “willful and wanton” standard set forth in R.C. 2744.02(B)(1).  The city and the firefighters appealed to the Supreme Court.

Pertinent Statutory Immunity

R.C. 2744.02(B)(1)(b)

This section of the political subdivision immunity statute provides a defense to a city if firefighters were responding to an emergency and did so without willful or wanton misconduct.

R.C. 2744.03(A)(6)(b)

This section of the political subdivision immunity statute provides immunity to employees (here, firefighters) unless they acted with malicious purpose, bad faith, or in a wanton or reckless manner.

Issue

Are reckless, willful, and wanton interchangeable terms? In the context of this case, is R.C. 2744.02(B)(1)(b), which provides a complete defense to a political subdivision unless there is willful or wanton misconduct in the operation of the fire truck responding to an emergency, the functional equivalent to R.C. 2744.03(A)(6)(b), which grants city employees immunity unless their actions were wanton or reckless.

Short answer: no.

Position of the Parties

The city and the firefighters argue that the terms reckless, willful, and wanton are not interchangeable, but describe different degrees of care. They point out the differences between the two statutory provisions, and argue that the city has a complete defense because the firefighters did not commit willful or wanton misconduct, and the firefighters have immunity because they did not act in a wanton or reckless manner.

Anderson argues that there is clearly an issue of fact about the recklessness of the firefighters, which would defeat their immunity.  She also argues that willful and wanton misconduct is the equivalent of wanton or reckless misconduct. Finally, she argues that under the statues, if more than recklessness is required to deprive a city of immunity, then contrary to basic principles of respondeat superior, the firefighters could be liable in a tort claim if the city is not.

Intent of the General Assembly

The statute providing a full defense to liability for a city clearly says different things than the statute providing immunity for its employees.

That Little Footnote that is the Source of so Many Problems

In a number of past cases, the Court has defined willful and wanton misconduct, and distinguished them from each other. Those cases are cited and analyzed in ¶s 24-28 of the opinion.

It’s when the Court began considering the standard of care applicable to participants in sporting events that the trouble began. In Marchetti v. Kalish, 53 Ohio St.3d 95 (1995) and Thompson v. McNeill,  53 Ohio St.3d 102 (1995) (decided the same day) the Court held that individuals engaging in recreational or sports activities assume the ordinary risks of these activities, and cannot recover unless the other participants were either reckless or acted intentionally.  In footnote one in the Thompson case, the Court wrote “the term “reckless” is often used interchangeably with “willful” and “wanton.” Our comments regarding recklessness apply to conduct characterized as willful and wanton as well.” I wrote in my sharper focus post on recklessness that this footnote has been the source of much of the subsequent confusion.  In the Anderson case, the Court expressly disavows that footnote (described as dicta) and holds that the three standards are different and not interchangeable.

The Definitions

Willful Misconduct

{¶ 32} Willful misconduct implies an intentional deviation from a clear duty or from a definite rule of conduct, a deliberate purpose not to discharge some duty necessary to safety, or purposefully doing wrongful acts with knowledge or appreciation of the likelihood of resulting injury. Tighe v. Diamond, 149 Ohio St. at 527, 80 N.E.2d 122; see also Black’s Law Dictionary 1630 (8th Ed.2004) (describing willful conduct as the voluntary or intentional violation or disregard of a known legal duty).

Wanton Misconduct

{¶ 33} 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. Hawkins, 50 Ohio St.2d at 117-118, 363 N.E.2d 367; see also Black’s 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 trying to avoid it and is indifferent to whether harm results).

Reckless Conduct

{¶ 34} 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. Thompson, 53 Ohio St.3d at 104-105, 559 N.E.2d 705, adopting 2 Restatement of the Law 2d, Torts, at 587 (1965); see also Black’s Law Dictionary (8th Ed.2004) 1298-1299 (explaining that reckless conduct is characterized by a substantial and unjustifiable risk of harm to others and a conscious disregard of or indifference to the risk, but the actor does not desire harm).

The Effect of a Violation of a Statute, Ordinance, or Departmental Policy

As my torts students can all tell you, violation of a statute can sometimes be negligence per se, making the plaintiff’s job very easy to prove duty and breach.  But what is the effect of such violations on these higher standards of misconduct? It’s not per se willful, wanton, or reckless, but it “may be relevant to determining the culpability of a course of conduct.”

So, Where Does this Leave Things?

The key is that the terms willful, wanton, and reckless as used in the immunity statutes are not interchangeable.  The court of appeals judgment was affirmed as modified by the Court’s clarification of these terms, and the matter remanded to the trial court to determine, with the clarification of the three terms, whether the city has a complete defense to liability and whether the firefighters are entitled to immunity.

Justice Lanzinger’s Position

First, what she agrees with—that summary judgment should have been reversed in this case. But she thinks the court of appeals was correct in finding the three terms at issue as functional equivalents.

Lanzinger disagrees with the majority that that the terms are not interchangeable for purposes of Chapter 2744.  While she agrees that the terms may fairly be described as being on a continuum,  with willful more culpable than wanton, which is more culpable than reckless, for the purpose of immunity they are functionally equivalent because they each describes conduct which is more than simple negligence.  She explains why the majority decision does not make sense:

{¶ 43} “If the majority is correct that the words are not interchangeable, then a political subdivision would not be liable for reckless conduct because “willful or wanton misconduct” is separate and distinct from reckless conduct. R.C. 2744.02(B)(1)(b). And employees would have immunity for their willful acts, because the word “willful” is not included as an exception to immunity along with “wanton” or “reckless.” R.C. 2744.03(A)(6)(b). Stated differently, the city would be liable if the firefighters were willful and wanton, but not if they were reckless; the firefighters would be liable if they were wanton or reckless, but not if they were willful. Or in other words, willful acts would implicate the political subdivision, not the employees, and reckless acts would implicate the employees, not the political subdivision.”

To her, the majority view does not make sense because the purpose of the immunity statute is to protect both political subdivisions and their employees from negligent– but not more culpable–conduct.  Construing the three terms—all more blameworthy than simple negligence—as functional equivalents is consistent with this goal. She would send the case back to the trial court to determine if the firefighters’ conduct was more than negligent in this case.

Justice Pfeifer agreed with this position.

Case Syllabus

1. “Willful,” “wanton,” and “reckless” describe different and distinct degrees of care and are not interchangeable. (Thompson v. McNeill (1990), 53 Ohio St.3d 102, 559 N.E.2d 705, modified.)

2. Willful misconduct implies an intentional deviation from a clear duty or from a definite rule of conduct, a deliberate purpose not to discharge some duty necessary to safety, or purposefully doing wrongful acts with knowledge or appreciation of the likelihood of resulting injury. (Tighe v. Diamond, 149 Ohio St. 520, 80 N.E.2d 122 (1948), approved and followed.)

3. 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. (Hawkins v. Ivy, 50 Ohio St.2d 114, 363 N.E.2d 367 (1977), approved and followed.)

4. 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. (2 Restatement of the Law 2d, Torts, Section 500 (1965), adopted.)

5. The violation of a statute, ordinance, or departmental policy enacted for the safety of the public is not per se willful, wanton, or reckless conduct, but may be relevant to determining the culpability of a course of conduct.

Concluding Observations

Here’s what I wrote after oral argument:

“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.”

As I’ve read this decision and thought about it, I agree that the three terms are on a continuum with willful more culpable than wanton, which is more culpable than reckless. The definitions are useful in that regard. The problem is the way the two sovereign immunity provisions applicable to this case were written.  I agree with Justice Lanzinger that the purpose of these statutes is to protect both employees and cities from negligence, but not from more culpable conduct, which means construing the three terms as functional equivalents in this particular context, although not necessarily in others. Perhaps the legislature could amend the two provisions so that the language in each conforms to the other.

This entry was posted in Merit Decisions, Ohio Supreme Court Watch and tagged , , , , . Bookmark the permalink.