[Cite as Burlingame v. Estate of Burlingame, 2011-Ohio-1325.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGES: GRACE BURLINGAME : Hon. W. Scott Gwin, P.J. : Hon. William B. Hoffman, J. Plaintiff-Appellant : Hon. John W. Wise, J. : -vs- : : Case No. 2010-CA-00124 ESTATE OF DALE BURLINGAME, : 2010-CA-00130 ET AL : : OPINION Defendants-Appellants
And
JAMES R. COOMBS, II., ET AL
Defendants-Appellees
CHARACTER OF PROCEEDING: Civil appeal from the Stark County Court of Common Pleas, Case No. 2009CV00689
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: March 21, 2011
APPEARANCES:
For Plaintiff-Appellant, James Burlingame, For Defendant-Appellee Canton City Fire Administrator of Estate of Grace Department, Canton City Hall and James R. Combs Burlingame, Deceased
ELIZABETH A. BURICK KRISTEN BATES AYLWARD 1428 Market Avenue North KEVIN L'HOMMEDIEU Canton, OH 44714 Canton Law Department City Hall Canton, OH
For Appellant Eva Finley, Administrator For Appellant Eva Finley, Administrator THOMAS LOMBARDI ORVILLE L. REED, III 101 Central Plaza S., Ste 900 Buckingham, Doolittle & Burroughs, LLP Chase Tower 3800 Embassy Parkway, Suite 300 Canton, OH 44702 Akron, OH 44333 [Cite as Burlingame v. Estate of Burlingame, 2011-Ohio-1325.]
Gwin, P.J.
{¶1} Plaintiff-appellant Joseph Burlingame, as the representative of the Estate of
Grace Burlingame, deceased, and defendant-appellant, Eva Finley, as the
representative of the Estate of Dale Burlingame, deceased, appeal a summary
judgment of the Court of Common Pleas of Stark County, Ohio, which found
defendants-appellees the City of Canton and its employee James R. Coombs II are
entitled to immunity from liability arising out of an accident between the decedent’s
vehicle and a Canton City fire truck. Appellant assigns a single error to the trial court:
{¶2} “I. THE TRIAL COURT ERRED WHEN IT GRANTED
DEFENDANTS/APPELLEES’ MOTION FOR SUMMARY JUDGMENT AS
REASONABLE MINDS COULD CONCLUDE THAT DEFENDANTS/APPELLEES
OPERATED THE VEHICLE IN A WANTON, WILLFUL AND/OR RECKLESS
MANNER.”
{¶3} In the case before us, we are asked to decide whether appellees the City of
Canton, and its employee James R. Coombs, II are entitled to immunity from liability in
the operation of a fire truck that was involved in an accident with the decedent’s van.
For the reasons that follow, we hold that based upon the record of the case before us,
reasonable minds could differ regarding whether they are.
{¶4} First, appellee the City of Canton has a complete defense to liability if, as
the trial court found, the operation of the fire truck was not willful or wanton, and it was
answering an emergency call. Similarly, the employees of the political subdivision such
as appellee Coombs are also immune unless the employee’s acts or omissions were
done with malicious purpose, in bad faith, or in a wanton or reckless manner. R.C. Stark County, Case No. 2010-CA-00124 & 2010-CA-00130 3
2744.03 (A)(6)(b). Second, traffic statutes and departmental policies are factors a jury
may consider in determining whether Coombs’ actions were reckless. Accordingly,
under the facts presented to the trial court, whether Coombs’ conduct in the operation of
the fire truck on July 4, 2007 rose to the level of willful or wanton is a genuine issue of
material fact for a jury to decide.
{¶5} Accordingly, we reverse the judgment of the trial court.
I. Relevant Background
{¶6} On February 19, 2009, Grace Burlingame, filed suit seeking to recover
money damages for the personal injuries that she suffered in a catastrophic collision
that occurred on July 4, 2007 at the intersection of Cleveland Avenue and 18th Street,
N.W. in the City of Canton. Burlingame named as Defendants, Joseph Burlingame,
Executor of the Estate of Dale Burlingame, deceased, as well as the City of Canton, the
Canton City Fire Department, James R. Coombs, II and Motorists Insurance Group.1
Burlingame filed a cross-claim against the Canton City Fire Department, the City of
Canton, James R. Coombs, II and the Canton City Fire Department seeking damages
for the wrongful death of Dale Burlingame as a result of the accident of July 4, 2007.
The City of Canton, James R. Coombs, II and the Canton City Fire Department filed an
Answer to that cross-claim and included, among its affirmative defenses, that they were
entitled to all the immunities, privileges and defenses granted to them pursuant to
Chapter 2744 of the Ohio Revised Code. The City, Coombs and the Canton City Fire
Department cross-claimed against the Estate of Dale Burlingame and claimed that they
1 The claim against Motorists was that it should be required to set forth its subrogated claim to the extent that it had one. Stark County, Case No. 2010-CA-00124 & 2010-CA-00130 4
were entitled to be indemnified for his alleged negligence. The City also sought to
recover damages for the loss that it suffered to its fire truck.
{¶7} The trial court decided this case in appellees favor by summary judgment.
We, therefore, construe the following facts from the record (which include depositions,
transcripts, affidavits, pictures, accident reports and the pleadings) in the light most
favorable to appellants. O’Toole v. Denihan, 118 Ohio St.3d 373, 889 N.E.2d 505,
2008-Ohio-2574 at ¶5. (Citing State ex rel. Zimmerman v Tompkins (1996), 75 Ohio
St.3d 447,448 663 N.E.2d 639).
{¶8} On July 4, 2007, Appellants Grace and Dale Burlingame were heading
home after enjoying a family picnic at their granddaughter’s house. On their route
home, Appellants were stopped at the red light at 18th Street, N.W., and Cleveland Ave,
N.W. in Canton. When his light turned green, Mr. Burlingame slowly pulled his vehicle
into the intersection to make a left turn. (Affidavit of Brooke James, filed by the City of
Canton and Coombs in support of their Motion for Summary Judgment). Almost
immediately, the Burlingames’ vehicle was violently struck by Appellees’ 20-ton fire-
truck traveling at 40 mph from a perpendicular direction. (Deposition of James R.
Coombs, II at 46). Mr. Burlingame was killed instantly; Mrs. Burlingame sustained
serious personal injuries and later died from those injuries.
{¶9} The traffic signals in Canton, like many other large cities, have a device
known as a “preemption system,” that overrides the usual traffic light pattern. When
properly initiated, this system affords an emergency vehicle a favored status (green
light) at an intersection. (Deposition of Douglas E. Serban, City of Canton, Electronic Stark County, Case No. 2010-CA-00124 & 2010-CA-00130 5
Computer Specialist at 12; 13; Coombs at 32, 44, and 45). It is the siren that initiates
the preemption system, not a horn or other device. (Serban at 19).
{¶10} Coombs, who was driving, immediately activated the fire trucks lights and
siren after pulling out of the station. As he drove south on Cleveland Avenue, the siren
stopped working just south of the 22nd Street intersection. When Coombs could not
successfully reactivate the siren, Captain Rick Sacco who was in the passenger seat of
the fire truck ordered Coombs to slow down and use the truck’s air horn to alert
motorists.
{¶11} Testimony was presented that the City of Canton had trained its firefighters
to stop at red lights even when responding to emergency calls. (Deposition of Jerry
Ward, firefighter with the City of Canton, City employee for 21 years at 9). In addition,
the firefighters were trained that, if the siren malfunctioned during a run, to convert the
emergency response into a non-emergency. (Ward, supra at 14). In the case at bar,
Coombs continued to proceed in an emergency response mode in spite of the
malfunctioning siren. (Ward, supra at 15).
{¶12} As Coombs approached the intersection on a red light, he could see the
cross-traffic stopped on 18th Street. (Sacco at 51; 52). An ambulance traveling with its
siren activated and headed south on Cleveland Avenue passed through the intersection
while the Burlingames’ vehicle was stopped at the red light. (Coombs deposition at 59).
Brooke James the driver of the vehicle that was behind the Burlingames’ van saw the
traffic light turn from red to green after the ambulance passed.
{¶13} As he approached the intersection, Coombs sounded the truck’s air horn
and was traveling at a speed between 35 to 40 miles per hour. Coombs thought he saw Stark County, Case No. 2010-CA-00124 & 2010-CA-00130 6
his traffic light turn green, however it did not. Coombs saw the van pull into the
intersection and attempted to avoid hitting it by swerving left of center.
{¶14} Plaintiff’s expert witness Robert Krause offered his opinion that Captain
Sacco and firefighter Coombs knew or should have known that continuing an
emergency response without their siren caused a substantial risk of harm to the general
public. A second expert witness Steven Wolfe offered an opinion based upon his
review, training and experience that Coombs’ actions arise to the standard of willful,
wanton and reckless conduct in the operation of the fire engine.
{¶15} The City of Canton, Canton Fire Department and James R. Coombs, II
moved for summary judgment. The trial court found the evidence demonstrated that
appellee Coombs’ actions were negligent at best, and did not rise to the level of
malicious purpose, bad faith or in a wanton and reckless manner. The court concluded
appellee Coombs and the City of Canton had statutory immunity from the Burlingames’
suit.
II. ANALYSIS
{¶16} The issue before us is whether there is a genuine issue of material fact on
the issue of whether appellees are entitled to immunity under R.C. Chapter 2744.
{¶17} Subject to a few exceptions, R.C. 2744.02(A)(1) provides that political
subdivisions are “not liable in damages in a civil action for injury, death, or loss to
person or property allegedly caused by any act or omission of the political subdivision or
an employee of the political subdivision in connection with a governmental or proprietary
function.” Likewise, immunity is extended, with several exceptions, to employees of Stark County, Case No. 2010-CA-00124 & 2010-CA-00130 7
political subdivisions under R.C. 2744.03(A)(6). O’Toole v. Denihan, supra, 118 Ohio
St.3d at 381, 889 N.E.2d at 512-513, 2008-Ohio-2574 at ¶ 47.
{¶18} Additionally, R.C. 2744.02(A) immunizes political subdivisions from actions
for personal injury or wrongful death except as provided in Division (B) of 2744.02. R.C.
2744.02(B)(1) provides that a political subdivision is liable for death or injuries resulting
from the negligent operation of a motor vehicle by an employee of the political
subdivision acting within the course of its employment. However, R.C. 2744.02(B)(1)(b)
provides that it is a full defense to the liability imposed by R.C. 2744.02(B)(1) upon the
City if a fire truck causes an accident while in progress to a place where a fire is in
progress unless the operator of the vehicle was operating the vehicle in a willful or
wanton manner. A political subdivision’s employee2 is also immune from liability for
personal injury or wrongful death unless his operation of the emergency vehicle was
performed with malicious purpose, in bad faith, or in a wanton or reckless manner.3
{¶19} Thus, the issue at the summary judgment stage is whether viewing the
evidence most strongly in favor of the appellants, there is a genuine issue of material
fact as to whether Coombs’ conduct in the operation of the fire truck on July 4, 2007
was wanton or willful.
A. Standard of Review
{¶20} Summary judgment proceedings present the appellate court with the
unique opportunity of reviewing the evidence in the same manner as the trial court.
Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St.3d 35, 36, 506 N.E.2d 212. As
such, we must refer to Civ.R. 56(C).
2 Coombs, in the case at bar. 3 R.C. 2744.03(A)(6)(b). Stark County, Case No. 2010-CA-00124 & 2010-CA-00130 8
{¶21} Civ.R. 56(C) states that summary judgment shall be rendered forthwith if
"the pleadings, depositions, answers to interrogatories, written admissions, affidavits,
transcripts of evidence, and written stipulations of fact, if any, timely filed in the action,
show that there is no genuine issue as to any material fact and that the moving party is
entitled to judgment as a matter of law.” Summary judgment is a procedural device to
terminate litigation, so it must be awarded cautiously with any doubts resolved in favor
of the nonmoving party. Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356, 358-359,
604 N.E.2d 138.
{¶22} Accordingly, summary judgment is appropriate only where: (1) no genuine
issue of material fact remains to be litigated; (2) the moving party is entitled to judgment
as a matter of law; and (3) viewing the evidence most strongly in favor of the nonmoving
party, reasonable minds can come to but one conclusion and that conclusion is adverse
to the nonmoving party. Tokles & Son, Inc. v. Midwestern Indemn. Co. (1992), 65 Ohio
St.3d 621, 629, 605 N.E.2d 936, citing Harless v. Willis Day Warehousing Co. (1978),
54 Ohio St.2d 64, 65-66, 375 N.E.2d 46.
{¶23} “Since summary judgment denies the party his or her ‘day in court’ it is not
to be viewed lightly as docket control or as a ‘little trial.’ The jurisprudence of summary
judgment standards has placed burdens on both the moving and the nonmoving party.
In Dresher v. Burt (1996), 75 Ohio St.3d 280, 293, 662 N.E.2d 264, the Supreme Court
of Ohio held that the moving party seeking summary judgment bears the initial burden
of informing the trial court of the basis for the motion and identifying those portions of
the record before the trial court that demonstrate the absence of a genuine issue of fact
on a material element of the nonmoving party’s claim. The evidence must be in the Stark County, Case No. 2010-CA-00124 & 2010-CA-00130 9
record or the motion cannot succeed. The moving party cannot discharge its initial
burden under Civ.R. 56 simply by making a conclusory assertion that the nonmoving
party has no evidence to prove its case but must be able to specifically point to some
evidence of the type listed in Civ.R. 56(C) that affirmatively demonstrates that the
nonmoving party has no evidence to support the nonmoving party’s claims. If the
moving party fails to satisfy its initial burden, the motion for summary judgment must be
denied. If the moving party has satisfied its initial burden, the nonmoving party has a
reciprocal burden outlined in the last sentence of Civ.R. 56(E) to set forth specific facts
showing there is a genuine issue for trial. If the nonmoving party fails to do so,
summary judgment, if appropriate shall be entered against the nonmoving party based
on the principles that have been firmly established in Ohio for quite some time in Mitseff
v. Wheeler (1988), 38 Ohio St.3d 112,***.
{¶24} “The Supreme Court in Dresher went on to hold that when neither the
moving nor nonmoving party provides evidentiary materials demonstrating that there are
no material facts in dispute, the moving party is not entitled to a judgment as a matter of
law as the moving party bears the initial responsibility of informing the trial court of the
basis for the motion, ‘and identifying those portions of the record which demonstrate the
absence of a genuine issue of fact on a material element of the nonmoving party’s
claim.’ Id. at 276. (Emphasis added.)” Welch v. Ziccarelli, 11th Dist. No. 2006-L-229,
2007-Ohio-4374, at ¶36-37, 40-42. (Parallel citations omitted.); Egli v. Congress Lake
Club 5th Dist. No. 2009CA00216, 2010-Ohio-2444 at ¶ 24-26.
{¶25} In deciding whether there exists a genuine issue of fact, the evidence must
be viewed in the nonmovant's favor. Civ.R. 56(C). Even the inferences to be drawn Stark County, Case No. 2010-CA-00124 & 2010-CA-00130 10
from the underlying facts contained in the evidentiary materials, such as affidavits and
depositions, must be construed in a light most favorable to the party opposing the
motion. Turner v. Turner (1993), 67 Ohio St.3d 337, 341, 617 N.E.2d 1123, 1127.
{¶26} Appellate review of summary judgments is de novo. Grafton v. Ohio
Edison Co. (1996), 77 Ohio St.3d 102, 105, 671 N.E.2d 241; Smiddy v. The Wedding
Party, Inc. (1987), 30 Ohio St.3d 35,506 N.E.2d 212. We stand in the shoes of the trial
court and conduct an independent review of the record. As such, we must affirm the
trial court's judgment if any of the grounds raised by the movant at the trial court is
found to support it, even if the trial court failed to consider those grounds. See Dresher,
supra; Coventry Twp. v. Ecker (1995), 101 Ohio App.3d 38, 41-42, 654 N.E.2d 1327;
Am. Fam. Ins. Co. v. Taylor, Muskingum App. No. CT2010-0014, 2010-Ohio-2756 at
25-31.
B. RECKLESS, WILLFUL OR WANTON CONDUCT
{¶27} We turn to the issue of what constitutes willful, wanton, and reckless
conduct under R.C. 2744.
{¶28} In Brockman v. Bell ( 1992), 78 Ohio App. 3d 508, 605 N.E. 2d 445, the
First District Court of Appeals observed that civil liability for negligence is predicated
upon injury caused by the failure to discharge a duty recognized in law and owed to the
injured party. The existence of a duty depends on the foreseeability of the injury. The
test for foreseeability is whether a reasonably prudent person, under the same or similar
circumstances, should have anticipated that injury to another was the probable result of
his performance or nonperformance of an act. As the probability increases that certain
consequences will flow from certain conduct, the actor's conduct acquires the character Stark County, Case No. 2010-CA-00124 & 2010-CA-00130 11
of intent and moves from negligence toward intentional wrongdoing. Thus, the court
concluded, the terms “wanton,” “willful” and “reckless,” as used to describe tortious
conduct, might best be defined at points on a continuum between negligence, which
conveys the idea of inadvertence, and intentional misconduct.
{¶29} We observe that willful and wanton misconduct describe two distinct legal
standards. Gardner v. Ohio Valley Region Sports Car Club of Am., Franklin App. No.
01 AP-1280, 2002-Ohio-3556 at ¶11.
{¶30} Essentially, wanton misconduct is the failure to exercise any care. Hunter
v. City of Columbus (2000), 139 Ohio App. 3d 962, 968, 746 N.E. 2d 246. Wanton
misconduct has also been likened to conduct that manifests a “disposition to perversity.”
Seymour v. New Bremen Speedway (1971), 31 Ohio App.3d 141, 148, 509 N.E.2d 90,
quoting Roszman v. Sammett (1971), 26 Ohio St.2d 94, 269 N.E.2d 420, paragraph two
of the syllabus. “‘[M]ere negligence is not converted into wanton misconduct unless the
evidence establishes a disposition to perversity on the part of the tortfeasor.’ ” Fabrey
v. McDonald Police Dept. (1994), 70 Ohio St.3d 351, 356, 639 N.E.2d 31, quoting
Roszman, supra. See Gardner v. Ohio Valley Region Sports Car Club of Am., Franklin
App. No. 01 AP-1280, 2002-Ohio-3556 at ¶13.
{¶31} Willful misconduct involves “an intent, purpose, or design to injure.” Zivich
v. Mentor Soccer Club, Inc. (1998), 82 Ohio St.3d 367, 375, 696 N.E.2d 201, quoting
McKinney v. Hartz & Restle Realtors, Inc. (1987), 31 Ohio St.3d 244, 246, 510 N.E.2d
386. Willful misconduct is something more than negligence and it imports a more
positive mental condition prompting an act than wanton misconduct. Phillips v. Dayton Stark County, Case No. 2010-CA-00124 & 2010-CA-00130 12
Power & Light Co. (1994), 93 Ohio App.3d 111, 119, 637 N.E.2d 963, citing Tighe v.
Diamond (1948), 149 Ohio St. 520, 526-527, 80 N.E.2d 122.
{¶32} In Marchant v. Gouge, this Court observed that wanton misconduct goes
beyond mere negligence and requires the evidence to establish a disposition to
perversity on the part of the tortfeasor such that the actor must be conscious that his
conduct will in all probability result in injury. The “wanton or reckless misconduct”
standard set forth in R.C. 2744.03(A)(6) and “willful or wanton misconduct” standard set
forth in R.C. 2744.02(B)(1)(a) are functionally equivalent. 187 Ohio App.3d 551, 932
N.E.2d 960, 2010-Ohio-2273 at ¶ 32. (Citations and internal quotation marks omitted).
{¶33} In Marchant, supra we went on to observe that “willful misconduct” involves
a more positive mental state prompting the injurious act than wanton misconduct, but
the intention relates to the misconduct, not the result. We cited Whitfield v. Dayton, 167
Ohio App.3d 172, 2006-Ohio-2917, 854 N.E.2d 532 which defined “willful misconduct”
as “‘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 purposely doing
some wrongful acts with knowledge or appreciation of the likelihood of resulting injury.’
” Id. at ¶ 30, quoting Tighe v. Diamond (1948), 149 Ohio St. 520, 527, 37 O.O. 243, 80
N.E.2d 122. In Gladon v. Greater Cleveland Regional Transit Auth. (1996), 75 Ohio
St.3d 312, 319, 662 N.E.2d 287, the Supreme Court defined the term “willful
misconduct” as “the intent, purpose, or design to injure.”
{¶34} The Supreme Court of Ohio has adopted the definition of reckless
misconduct set forth in Restatement of the Law 2d, Torts (1965) 587, Section 500.
Marchetti v. Kalish (1990), 53 Ohio St.3d 95, 100, 559 N.E.2d 699, 704 at n.3. Stark County, Case No. 2010-CA-00124 & 2010-CA-00130 13
Comments f and g to Section 500 of the Restatement of Torts 2d, supra, at 590, provide
a concise analysis, which differentiates between the three mental states of tortious
conduct with which we are confronted. The court in Marchetti cited to these comments
with approval. They provide as follows:
{¶35} “f. Intentional misconduct and recklessness contrasted. Reckless
misconduct differs from intentional wrongdoing in a very important particular. While an
act to be reckless must be intended by the actor, the actor does not intend to cause the
harm which results from it. It is enough that he realizes or, from facts which he knows,
should realize that there is a strong probability that harm may result, even though he
hopes or even expects that his conduct will prove harmless. However, a strong
probability is a different thing from the substantial certainty without which he cannot be
said to intend the harm in which his act results.
{¶36} “g. Negligence and recklessness contrasted. Reckless misconduct differs
from negligence in several important particulars. It differs from that form of negligence
which consists in mere inadvertence, incompetence, unskillfulness, or a failure to take
precautions to enable the actor adequately to cope with a possible or probable future
emergency, in that reckless misconduct requires a conscious choice of a course of
action, either with knowledge of the serious danger to others involved in it or with
knowledge of facts which would disclose this danger to any reasonable man. It differs
not only from the above-mentioned form of negligence, but also from that negligence
which consists in intentionally doing an act with knowledge that it contains a risk of harm
to others, in that the actor to be reckless must recognize that his conduct involves a risk
substantially greater in amount than that which is necessary to make his conduct Stark County, Case No. 2010-CA-00124 & 2010-CA-00130 14
negligent. The difference between reckless misconduct and conduct involving only
such a quantum of risk as is necessary to make it negligent is a difference in the degree
of the risk, but this difference of degree is so marked as to amount substantially to a
difference in kind.” See also Marchant v. Gouge, supra at ¶ 36.
{¶37} Appellants argue Coombs violated traffic law and departmental policies
while driving the fire truck. R.C. 4511.03 is entitled “Emergency or public safety
vehicles to proceed cautiously past red or stop signal” and provides:
{¶38} “(A) The driver of any emergency vehicle or public safety vehicle, when
responding to an emergency call, upon approaching a red or stop signal or any stop
sign shall slow down as necessary for safety to traffic, but may proceed cautiously past
such red or stop sign or signal with due regard for the safety of all persons using the
street or highway.”
{¶39} The statute does not refer to use of sirens and flashing lights. It directs all
emergency vehicles to slow down at red lights and stop signs.
{¶40} The trial court cited Pelc v. Hartford Insurance Co., Stark App. No.
2003CA00162, 2003-Ohio-6021 as authority for the proposition immunity from civil
liability is a separate issue from immunity under the traffic code. The court misstates
our holding. In Pelc, we noted R.C.2744.02 gave immunity to the firefighter because he
was responding to an emergency and because his actions were not willful or wanton.
R.C. 4511.041 provides traffic laws do not apply to a driver of an emergency vehicle
while responding to an emergency and gives immunity from prosecution for violating
traffic laws. R.C. 4511.041 is a traffic law and does not provide immunity for civil liability
for torts. Stark County, Case No. 2010-CA-00124 & 2010-CA-00130 15
{¶41} In the case at bar, the trial court found violations of departmental
regulations do not strip Coombs of immunity because a city regulation cannot override
the state statute granting immunity. The court stated courts in Ohio have repeatedly
found violations of internal departmental policies are not relevant to a finding of malice,
bad faith or wanton or reckless manner, citing Elass v. Crockett, Summit App.
No.22282, 2005-Ohio-2142; Shalkhauser v. City of Medina, 148 Ohio App.3d 41, 2002-
Ohio-222, 772 N.E.2d 129, at paragraph 37; and Rodgers v. DeRue (1991), 75 Ohio
App.3d 200, 598 N.E.2d 1312. In actuality, these cases all arose out of the Ninth
District, and we do not agree. Violation of departmental policy or of traffic laws may be
a factor for the jury to consider in determining whether the conduct of the defendants
rose to the level of wanton or reckless.
{¶42} Appellee cites us to O’Toole v. Denihan 118 Ohio St.3d 374, 2008-Ohio-
2574, 889 N.E.2d 505 as authority for the proposition a plaintiff cannot maneuver
around political subdivision immunity by alleging violations of departmental policies or
the Ohio Administrative Code.
{¶43} In O'Toole v. Denihan, 118 Ohio St.3d 374, 2008-Ohio-2574, 889 N.E.2d
505, ¶ 73, the Supreme Court noted that in the context of R.C. 2744.03(A) (6) (b),
recklessness is a perverse disregard of a known risk. The O'Toole court held that
violations of agency policy could rise to the level of recklessness if the circumstances
demonstrate a perverse disregard for the risks involved. Id. at ¶ 92. The Court said:
{¶44} “Appellee's final attempt to maneuver around George-Munro's immunity
status is based on the allegation that George-Munro violated various Ohio
Administrative Code and CCDCFS policies regarding investigations. Given our Stark County, Case No. 2010-CA-00124 & 2010-CA-00130 16
definition of “recklessness,” a violation of various policies does not rise to the level of
reckless conduct unless a claimant can establish that the violator acted with a perverse
disregard of the risk. *** Without evidence of an accompanying knowledge that the
violations “will in all probability result in injury,” Fabrey, [v. McDonald Village Police
Department] 70 Ohio St.3d at 356, 639 N.E.2d 31, evidence that policies have been
violated demonstrates negligence at best. ***” O’Toole at paragraph 92.
{¶45} The laws and policies are designed to make emergency responses safer
for the public. However, they also exist for the protection of the firefighters, who already
face serious personal risks in their day-to-day jobs, and who must not be further
imperiled en route to their humanitarian roles. We find violations of traffic statutes and
departmental policies are factors a jury may consider in determining whether Coombs’
actions were reckless.
{¶46} The 2008 Fire Department Policy Vehicle Operations/ Security requires
drivers of fire department vehicles to come to a complete stop: if directed by a law
enforcement officer; for red traffic lights; for stop signs ; for negative right-of way
intersections; for blind intersections; if the driver cannot account for all lanes of traffic in
an intersection.
{¶47} The Canton Fire Department Policy Incident and Collision Investigation
guidelines list collisions at intersections preventable if: the driver failed to completely
stop at an intersection controlled by a red control device or stop sign; the driver failed to
control speed so the vehicle could be stopped safely; the driver failed to check cross
traffic and wait for all lanes of traffic to stop or clear before entering the intersection,
even if the driver had the right of way; the driver pulled out into the face of oncoming Stark County, Case No. 2010-CA-00124 & 2010-CA-00130 17
traffic; the driver collided with a vehicle making a turn; the driver collided with a vehicle
making a turn in front of the city vehicle.
{¶48} Appellants urge from the above facts, reasonable minds could draw
different conclusions regarding whether Coombs operated the fire truck recklessly.
{¶49} The question of whether a person has acted recklessly is almost always a
question for the jury. Hunter v. Columbus (2000), 139 Ohio App. 962, 746 N.E. 2d 246,
decided by the 10th District Court of Appeals. In Hunter, an emergency vehicle
responding to an emergency call entered an intersection at 61 miles per hour in a 35
miles per hour zone. The court of appeals acknowledged the emergency vehicle
operator’s motives were humanitarian, but found nevertheless, he did not necessarily
have immunity because the matter presented a genuine issue of fact to the jury. The
Hunter case cited Brockman v. Bell (1992), 78 Ohio App. 3d 508, 605 N.E. 2d 445,
arising out of the Eleventh District Court of Appeals, and Ruth v. Jennings (1999), 136
Ohio App. 3d 370, 736 N.E. 2d 917, arising out of the Twelfth District Court of Appeals.
The Bell case involved a collision between an ambulance and a private vehicle,
although Ruth concerned an excessive force to arrest situation. However, all three of
the cases the Hunter court cited found resolution of the case was a matter for the jury.
{¶50} The Ohio Supreme Court has explained: negligence is mere inadvertence,
incompetence, lack of skill, or failure to take precautions that would allow the person to
cope with a possible or probable future emergency. Reckless consists in intentionally
doing an act with knowledge that it contains a risk of harm to others, in that the actor to
be reckless must recognize that his conduct involves a risk substantially greater in
amount than that which is necessary to make his conduct negligent. The person does Stark County, Case No. 2010-CA-00124 & 2010-CA-00130 18
not intend to cause the harm that results from it but realizes or, from known facts,
should realize that there is a strong probability that harm may result, even though the
person hopes or even expects that the conduct will prove harmless. Intentional
misconduct occurs when the person intends to cause harm. Marchetti v. Kalish, 53
Ohio St.3d 95, 559 N.E.2d 699, footnote 3, citing Comments f and g to Section 500 of
the Restatement of Torts 2d.
{¶51} The spectrum of intent stretches from negligence, through reckless, to
intentional, and there are no bright lines. It is a jury question where on the continuum
the appellees’ actions fall. We agree with the Bell court that the line between willful and
wanton misconduct and ordinary negligence can be a very fine one, Bell at 517, citing
Osler v. Lorain (1986), 28 Ohio St. 3d 345, 504 N.E. 2d 19; Hawkins v. Ivy (1977), 50
Oho St. 2d 144, 363 N.E. 2d 367; Tighe v. Diamond (1948), 149 Ohio St. 520, 80 N.E.
2d 1122; and Reynolds v. City of Oakwood (1987), 38 Ohio App. 3d 125, 528 N.E. 2d
578. The Reynolds case arose out of the Second District Court of Appeals and dealt
with a collision between a police car utilizing the siren and lights and a pedestrian
vehicle.
{¶52} In Hunter, supra, the court of appeals noted each case must be evaluated
on its particular facts, and the use of a siren and flashing lights is one factor a jury must
consider. Whether the emergency vehicle has crossed left of center may be a factor, as
is the speed at which an emergency vehicle is traveling, because it may exceed the
reaction time of even an alert driver. Id., at 970-971. The Reynolds court found use of
a siren and flashing lights is not the sole determinative fact, and the court discussed
tree-lined streets as possible impairments to visibility and audibility. Id. at 127. Stark County, Case No. 2010-CA-00124 & 2010-CA-00130 19
{¶53} The question of whether conduct is reckless in the case at bar in relation to
whether the probability of harm is great and known to the alleged tortfeasor requires a
more substantial analysis. The city cites situations where emergency vehicle drivers
were not found to be driving in a wanton or reckless manner, but each situation must be
evaluated on its own unique facts. In this case, the circumstances are extreme enough
that evaluation of whether the recklessness was great enough to be reckless or wanton
misconduct is a matter for the trier of fact. The fact that the siren was not on is, of
course, a matter that can be considered by the jury in determining whether appellants
proved wanton or reckless misconduct, but the driver's conduct must be evaluated
based upon all of the circumstances at the time he choose to continue into the
intersection at the speed he was traveling.
{¶54} “It is assumed that twelve men know more of common affairs of life than
does one man, that they can draw wiser and safer conclusions from admitted facts thus
occurring than can a single judge.” Sioux City & Pennsylvania Railway. Co. v. Stout,
(1873) 84 U.S. (17 Wall.) 657,664. Justice Story was writing in defense of one of the
foundations of the American system of justice: the Seventh Amendment to the United
States Constitution. It provides:
{¶55} “In Suits at common law, where the value in controversy shall exceed
twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury,
shall be otherwise reexamined in any Court of the United States, than according to the
rules of the common law.” Stark County, Case No. 2010-CA-00124 & 2010-CA-00130 20
{¶56} Although the Seventh Amendment is not directly applicable to the
individual states, Ohio has guaranteed the right to jury trial in Section 5, Article I of the
Ohio Constitution. Article I section 5 of the Ohio Constitution provides:
{¶57} ”The right of trial by jury shall be inviolate, except that, in civil cases, laws
may be passed to authorize the rendering of a verdict by the concurrence of not less
than three-fourths of the jury.”
{¶58} Because the right to jury trial is a substantive fundamental right, any rule or
statute curtailing that right must be examined under a microscope. For this reason, the
Ohio Supreme Court has held that even if the facts of a given case are undisputed, if a
jury could draw different conclusions from those facts, a summary judgment cannot be
entered. Houndshell v. American States Insurance Company (1981), 67 Ohio St. 2d
427. The jury must decide questions of fact; the judge decides how the law applies to
those facts. The judge must not weigh the credibility of the evidence and must not
decide how much emphasis to put on any one piece of properly admitted evidence.
{¶59} Summary judgment can be an important tool to streamline what may
become a lengthy process. It is intended to weed out those cases that have no merit, or
those that can be resolved simply by applying the law. However, courts must not be in
a rush to judgment and must carefully preserve the right of litigants to have a jury of
their peers determine the facts of their case. Recently, the Ohio Supreme Court
explained:
{¶60} “This right [to a jury] serves as one of the most fundamental and long-
standing rights in our legal system, having derived originally from the Magna Carta.
See Cleveland Ry.v. Halliday Co. (1933), 127 Ohio St. 278, 284, 188 N.E. 1. It was Stark County, Case No. 2010-CA-00124 & 2010-CA-00130 21
“[d]esigned to prevent government oppression and to promote the fair resolution of
factual issues.” Arrington v. Daimler Chrysler Corp., 109 Ohio St.3d 539, 2006-Ohio-
3257, 849 N.E.2d 1004, 21. As Thomas Jefferson stated, the right to trial by jury is “the
only anchor, ever yet imagined by man, by which a government can be held to the
principles of it's [sic] constitution.” Letter from Thomas Jefferson to Thomas Paine (July
11, 1789), reprinted in 15 The Papers of Thomas Jefferson (Boyd Ed.1958) 269.
{¶61} “However, the right is not absolute. See Arrington at 22. Section 5, Article I
guarantees a right to a jury trial only for those causes of action in which the right existed
in the common law when Section 5 was adopted. See Belding v. State ex rel. Heifner
(1929), 121 Ohio St. 393, 169 N.E. 301, paragraph one of the syllabus. It is settled that
the right applies to both negligence and intentional-tort actions. See Arrington at 24.”
Arbino v. Johnson & Johnson, 116 Ohio St.3d 468, 2007 -Ohio- 6948, 880 N.E.2d 420.
{¶62} This case is far from over. Our holding here does not mean appellants
recover; it just means they could have an opportunity to present their case to a jury who
will decide whether Coombs was reckless. It means there are important issues yet to
be decided.
{¶63} We find the trial court erred in finding reasonable minds could not differ on
this issue. Accordingly, the assignment of error is sustained. Stark County, Case No. 2010-CA-00124 & 2010-CA-00130 22
{¶64} For the foregoing reasons the judgment of the Court of Common Pleas,
Stark County, Ohio is reversed, and the cause is remanded for further proceedings in
accordance with the law and consistent with this opinion.
By Gwin, P.J.,
Hoffman, J., and
Wise, J., concur
_________________________________ HON. W. SCOTT GWIN
_________________________________ HON. WILLIAM B. HOFFMAN
_________________________________ HON. JOHN W. WISE WSG:clw 0204 [Cite as Burlingame v. Estate of Burlingame, 2011-Ohio-1325.]
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
GRACE BURLINGAME : : Plaintiff-Appellant : : : -vs- : JUDGMENT ENTRY : ESTATE OF DALE BURLINGAME, : ET AL : : : Defendants-Appellants : CASE NO. 2010-CA-00124 And
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of
the Court of Common Pleas of Stark County, Ohio, is reversed, and the cause is
remanded to the court for further proceedings in accordance with law and consistent
with this opinion. Costs to appellees.
_________________________________ HON. JOHN W. WISE [Cite as Burlingame v. Estate of Burlingame, 2011-Ohio-1325.]
GRACE BURLINGAME : : Plaintiff-Appellant : : : -vs- : JUDGMENT ENTRY : ESTATE OF DALE BURLINGAME, : ET AL : : : Defendants-Appellants : CASE NO. 2010-CA-00130
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of
the Court of Common Pleas of Stark County, Ohio, is reversed, and the cause is
remanded to the court for further proceedings in accord with law and consistent with this
opinion. Costs to appellees.
_________________________________ HON. JOHN W. WISE