What Happened on Remand: Burlingame v. Estate of Burlingame. Still Arguing over the Firefighter’s Culpability

Update: On December 8, 2014, the Fifth District Court of Appeals affirmed the trial court’s decision denying summary judgment.  So, as predicted below, back to the trial court it goes, again.

Case Background

In 2007, Dale and Grace Burlingame were killed when the van Dale was driving was struck by a fire engine on an emergency run, driven by Canton firefighter James Coombs. 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. Coombs’ captain, who was in the passenger seat, warned Coombs to slow down and to use the air horn to alert motorists. Coombs, who thought the light was still green, continued to drive the truck through the intersection at 40mph in a 35 mph zone. As the Burlingames pulled out into the intersection when their light turned green, Coombs tried to swerve, but struck the van. Dale was killed instantly, and Grace died later from her injuries.

Grace Burlingame (initially, and later through her personal representative) sued Coombs and the City of Canton, alleging they were willful, wanton, and reckless. She also sued the personal representative of Dale’s estate, alleging negligence. Dale’s personal representative denied negligence and cross-claimed against the other defendants for Dale’s wrongful death. Coombs and the City asserted immunity defenses under R.C. 2744 and claimed that it was Dale Burlingame’s negligence that caused the accident.

Procedural Posture

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.

Pertinent Statutory Immunity

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

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.

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

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

Key Precedent

Anderson v. Massillon, 2012-Ohio-5711 (Willfulness, wantonness, and recklessness describe different degrees of care and are not interchangeable. Violation of a statute, ordinance, or department 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. You can read about this case here).

Supreme Court Decision

On December 6, 2012 the Supreme Court of Ohio handed down a disposition in Burlingame v. Estate of Burlingame. In a 6-1 decision, the Court sua sponte reversed the court of appeals decision on the authority of Anderson v. Massillon, and remanded the case to the court of appeals for further proceedings consistent with that decision.

What Happened on Remand

On remand, the court of appeals again found that the trial court had erred in granting summary judgment to the defendants. The court of appeals also held that violations of internal departmental policies are relevant in determining the defendants’ culpability, as the Supreme Court held in Anderson. In addition, the appeals court directed the trial court to apply the definitions of willful, wanton, and reckless as defined by the Supreme Court in the Anderson decision. The case was then remanded.

On remand back to the trial court, the City of Canton filed for summary judgment once again. The trial court denied Canton summary judgment, holding that the Fifth District had determined in its two previous rulings that “summary judgment does not apply [to this case] as a matter of law,” as issues of fact still remain.

Next Step?

The City of Canton has appealed the trial court’s denial of the motion for summary judgment to the Fifth District Court of Appeals. The City argues that the trial court erred in finding that factual issues exist, and that both it and Coombs are entitled to summary judgment because there is no evidence that any conduct by Coombs rises above simple negligence, even with the newly clarified definitions of willful, wanton, and reckless from the Supreme Court of Ohio.  The City also argues Coombs did not intentionally violate any traffic statutes or departmental rules.The Burlingame family disagrees with all of this.

This appeal will be heard October 21, 2014.

Prediction Department?

I (Professor Bettman) think the Court of Appeals is going to say yet one more time that summary judgment should not be granted in this case. Quoting the trial judge on the most recent remand: “It is abundantly clear that the Fifth District has determined that this case is one where issues remain for the finders of fact and that summary judgment does not apply as a matter of law.” Still, I think the City and the firefighter will ultimately win this case.

Student Contributor: Michael Elliott




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