Some cases decided by the Supreme Court of Ohio are remanded for further proceedings. From time to time, the blog will update readers on what happened on remand on cases we blogged about previously.
The first remanded case we are presenting is Anderson v. Massillon, 2012-Ohio-5711, a wrongful death case filed by Cynthia Anderson as administratrix of the estates of Ronald Anderson and Javarre Tate against the City of Massillon and two individual firefighters, Susan Toles and Rick Annen.
Ronald Anderson and his grandson Javarre Tate were killed when Anderson’s minivan was struck broadside at an intersection by a fire engine on an emergency run in response to a fire in Massillon Ohio. Fire Engine 211, driven by Toles and commanded by Annen, approached the intersection where the accident occurred with horn and siren blaring, significantly in excess of the speed limit. Further details of how the accident occurred are in all of the various opinions in the case.
Pertinent Statutory Immunity
This section of the political subdivision immunity statute provides a city with a complete defense for injuries caused by the operation of a fire truck responding to an emergency, as long as the firefighters did not act willfully or wantonly in the operation of the fire truck.
This section of the political subdivision immunity statute provides immunity to employees (here, firefighters) unless they acted in a wanton or reckless manner.
The trial court originally granted summary judgment both to the city and to the firefighters on the basis of statutory immunity. 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 willful or wanton misconduct standard codified at R.C. 2744.02(B)(1) is the functional equivalent of recklessness set forth 2744.03(A)(6), and thus also reversed summary judgment for the city. The city and the firefighters appealed to the Supreme Court.
Supreme Court Decision
On December 6, 2012, in a 5-2 decision, the Supreme Court affirmed the court of appeals as modified, agreeing that summary judgment should be reversed, but disagreeing that the terms reckless, willful and wanton were functionally equivalent. The Court held that reckless, willful, and wanton constitute different degrees of culpability, specifically defining each term in the case syllabus. The case was remanded to the trial court to determine, with the newly clarified terms, if the city had a complete defense to liability and whether the firefighters were entitled to immunity. Read the complete analysis of the Supreme Court’s merit decision here.
Short version of decision (and why this is such a complicated mess)
The way these statutes are written, the city will be liable if the firefighters were willful or wanton, but not if they were reckless; the firefighters would be liable if they were wanton or reckless, but not if they were willful. Willful acts would implicate the city, but not its employees, and reckless acts would implicate the employees, but not the city. Wanton acts would implicate both.
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.
What Happened On Remand
On remand, the trial court granted summary judgment to the city, but denied summary judgment to firefighters Toles and Annen. The trial court found that there was no evidence of willful or wanton misconduct by the firefighters, thus entitling the city to the full defense to liability under R.C. 2744.02(B)(1)(b). But the court found that based on the evidence presented, there were genuine issues of material fact about whether Toles and Annen were reckless, as the term has now been defined by the Supreme Court.
Both sides appealed to the Fifth District Court of Appeals. On June 9, 2014, the Fifth District Court of Appeals unanimously found that there were genuine issues of material fact on whether the conduct of the firefighters was wanton, as well as reckless, as re-defined in the Supreme Court decision, thus affirming the denial of summary judgment to the firefighters and reversing summary judgment to the city.
The Liability of the City of Massillon under R.C. 2744.02(B)(1)(b)
The City will be liable for the conduct of the firefighters if that conduct was wanton. (The City would also be liable if the conduct was willful, but Anderson never alleged that.) The appeals court found the following evidence created material issues of fact on the question of wantonness by the firefighters:
- The alleged violations of local ordinances and departmental policies in the operation of Engine 211
- Approaching the intersection at a speed greatly in excess of the 25mph speed limit
- Approaching a blind intersection without slowing or stopping. On the day of the accident, a tree, utility pole, bushes, parked cars, and a house close to the street partially obstructed the view of the traffic as the fire truck approached the intersection.
- Whether Annen’s conduct as captain violated Fire Department policies on ensuring that the driver is operating the vehicle in a safe and prudent manner at all times.
- Whether the siren of Engine 211 was masked by the siren of a pumper truck which preceded it through the intersection on its run.
The Liability of Toles and Annen under R.C. 2744.03(A)(6)(b)
If the firefighters are found reckless, they would not be entitled to immunity. The appeals court also found that the speed at which the firefighters approached an intersection with limited visibility created a genuine issue of material fact on the question of recklessness of the two firefighters.
Should Full Defense Apply to the City and the Firefighters?
The appeals court also rejected, as did the trial court, the city’s argument that the full defense to liability codified at R.C. 2744.02(B)(1)(b) should apply both to the city and its employees. The city argued that because R.C. 2744.07(A)(1) and R.C. 2744.07(A)(2) require the political subdivision to defend and indemnify its employees, R.C. 2744.03(A)(6)(b) therefore defeats the purpose of the “full defense” provision of R.C. 2744.02(B)(1). The appeals court found this argument unpersuasive, noting that the General Assembly clearly intended different degrees of care for a political subdivision and its employees.
It is likely the city will try and appeal the case again to the Supreme Court of Ohio. I’m betting, though, the Court won’t take it again. But this is by no means an easy win for the plaintiff. I suspect firefighters on emergency runs get a lot of benefits of the doubt. Still, I think the evidence of recklessness looks strong here; wantonness much less so.