Anderson v. City of Massillon, Case No. 2013CA00144

CourtUnited States Court of Appeals (Ohio)
Citation2014 Ohio 2516
Docket NumberCase No. 2013CA00144
PartiesANDERSON, ADM. Plaintiff-Appellee/Cross-Appellant v. CITY OF MASSILLON, ET AL. Defendants-Appellants/Cross-Appellees
Decision Date09 June 2014

2014 Ohio 2516

ANDERSON, ADM. Plaintiff-Appellee/Cross-Appellant

Case No. 2013CA00144




Hon. W. Scott Gwin, P.J.
Hon. William B. Hoffman, J.
Hon. Patricia A. Delaney, J.



Appeal from the Stark County Court of
Common Pleas, Case No.





For Plaintiff-Appellee/Cross-Appellant:



For Defendants-Appellants/Cross-


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Delaney, J.

{¶1} Plaintiff-Appellee/Cross-Appellant Cynthia Anderson, Administratrix of the Estates of Ronald E. Anderson and Javarre J. Tate and Defendants-Appellants/Cross-Appellees City of Massillon, Susan J. Toles, and Rick H. Annen appeal the July 15, 2013 judgment entry of the Stark County Court of Common Pleas. For the reasons that follow, we affirm in part and reverse and remand in part the judgment of the trial court.


{¶2} At 8:30 a.m. on May 6, 2008, Tammy Lockey called 9-1-1 to report a car fire at 1272 Huron Road in Massillon, Ohio. The call was received by the RED Center, the central dispatch for the City of Massillon and other political subdivisions. Dispatcher Lynne Martin Joiner received the call. Joiner routed the call to Thomas Thornberry, the fire dispatcher. Thornberry consulted his computer to dispatch the first available fire engine in Massillon. Thornberry also inquired of Joiner whether the fire was near a house.

{¶3} At 8:31 a.m., a tone was sounded in Station 1 of the Massillon Fire Department for Engine 214, a pumper truck, to respond to the car fire. Rescue 250, approximately the size of an ambulance and that holds certain rescue equipment, was also ordered to respond to the car fire. Joiner called Lockey back and inquired whether the car fire was near a house. Lockey stated the car fire was near a house and Joiner relayed the information to Thornberry. Thornberry then toned Station 1 at 8:33:03 a.m. and dispatched the second engine, Engine 211, a 75-foot aerial ladder truck, instead of Rescue 250.

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{¶4} At 8:33:43 a.m., Engine 214 left Station 1. Engine 214 was driven by Firefighter Greenwood and commanded by Captain Smith. Engine 214 proceeded down Erie Street to Walnut Street towards the dispatched location. Engine 214 traveled with its lights and sirens activated.

{¶5} Captain Rick Annen, the shift commander, directed Rescue 250 to remain at Station 1 because Engine 211 would instead respond to the car fire. Firefighters Jason Castile and Ernie Bard sat in the rear-facing passenger seats of Engine 211. Captain Annen commanded Engine 211 and sat in the commander's seat on the right passenger side of Engine 211. Firefighter Susan Toles drove Engine 211. At 8:34:25 a.m., Engine 211 left Station 1 and followed the same route to the dispatched location as Engine 214.

{¶6} As commander, some of Captain Annen's responsibilities while reporting to an emergency call are to consult a map book and to operate the siren and air horn. On May 6, 2008, when Captain Annen first got into Engine 211 he turned on the emergency lights and electronic siren that made a high and low pitch. He operated the air horn manually by a foot pedal. Captain Annen sounded the air horn at intersections. While in transit to the emergency call, Captain Annen referred to the map book he was holding.

{¶7} In order to respond to the car fire location, Engine 214 and Engine 211 traveled on Walnut Street. Walnut Street is a narrow, two-lane street traveling east and west in a residential area. It has a speed limit of 25 miles per hour. Walnut Street intersects with Johnson Street. Johnson Street travels north and south. The intersection of Walnut Street and Johnson Street is a three-way stop controlled by stop signs and an

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overhead flashing red light. On the westbound side of Walnut Street, almost directly across from Johnson Street, is the driveway to a school. On May 6, 2008, a tree, utility pole, bushes, parked cars, and a house close to the street partially obstructed the view of the traffic approaching from Johnson Street to Walnut Street.

{¶8} When Engine 211 turned eastbound on to Walnut Street, Captain Annen could not see Engine 214 ahead of them. Firefighter Toles stated she could see Engine 214 ahead of them.

{¶9} Firefighter Greenwood, the driver of Engine 214, slowed down at Johnson Street to ensure that the intersection was clear of traffic before proceeding through it. At that time, Deanna Jackson was stopped on Beckman Street waiting to turn northbound onto Johnson Street. Jackson saw the first fire truck pass on Walnut Street while she was waiting to turn onto Johnson Street. Jackson saw Ronald Anderson driving northbound on Johnson Street. Ronald Anderson was driving his grandson Javarre Tate to the school located on Walnut Street. Anderson waved to Jackson and she pulled onto Johnson Street behind Anderson's vehicle. Jackson stated Anderson was stopped at the stop sign at Johnson and Walnut Street.

{¶10} As Firefighter Toles drove Engine 211 on Walnut Street, she observed a school bus pulled to the eastbound side of the road, yielding to the fire truck. Toles slowed down to make sure there were no children on the street and that the school bus stop sign was not out. Toles stated that after she determined the school bus was yielding, she moved left of center because of the presence of a parked car and school bus on eastbound side of Walnut Street.

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{¶11} Engine 211 approached the Johnson Street intersection traveling at a speed exceeding 25 miles per hour. Toles stated that she scanned the intersection of Johnson and Walnut Street to make sure the intersection was clear and she determined no one was in the intersection.

{¶12} Jackson stated she heard sirens while she was on Johnson Street but she did not see a second fire truck. Jackson said she saw Anderson drive into the intersection. She then witnessed Engine 211 drive on the left side of the street and strike the center of Anderson's minivan. Captain Annen stated he saw Ronald Anderson's minivan slowly roll through the stop sign at Johnson Street to cross Walnut Street. He yelled to Toles, "He's not stopping!" Toles stated that as she approached the intersection, she saw the minivan "shoot out in front" of Engine 211. She did not apply the brakes because of the jake brake system on Engine 211, but maneuvered the truck to the left to avoid hitting the minivan and get around. Engine 211 collided with the minivan, resulting in the deaths of Ronald Anderson and Javarre Tate.

{¶13} Ohio State Highway Patrol Trooper Frederick J. Cook assisted in the investigation of the accident. In his reconstruction report, he calculated that Engine 211 had been traveling between 44 and 50 miles per hour. Trooper Cook also opined that given the decreased range of visibility caused by obstructions near the intersection, a driver stopped at the stop sign on Johnson Street might not have been able to see the fire truck approaching.

{¶14} Plaintiff-Appellee/Cross-Appellant Cynthia Anderson filed a wrongful-death action alleging that the City of Massillon, Toles, and Annen had willfully, wantonly, and recklessly caused the deaths of her husband and grandson.

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{¶15} Anderson's expert, Choya R. Hawn, calculated the fire truck's minimum speed at the point of impact was between 49 and 52 miles per hour. He opined that because of roadside obstructions, Engine 211 was not visible to Ronald Anderson at the time he entered the intersection. Hawn also stated that he believed emergency vehicles approaching a stop sign should proceed at 10 miles per hour or slower to ensure the ability to stop. He further noted the danger of emergency vehicles running in tandem because the siren of the first vehicle could have masked the siren of the second, preventing Ronald Anderson from noticing the approaching fire truck.

{¶16} Scott A. Noll, an accident reconstructionist testifying for the City of Massillon and the firefighters, concluded that Engine 211 was traveling at 39 miles per hour and Toles had allowed adequate time and distance to evaluate the lanes of travel before proceeding through the intersection. Noll further opined that Anderson caused the accident by failing to stop at the stop sign.

{¶17} The City of Massillon, Toles, and Annen moved for summary judgment. The trial court granted summary judgment in their favor, finding the City of Massillon had a full defense to liability pursuant to R.C. 2744.02(B)(1)(b), because Engine 211 was responding to an emergency call and the operation of the fire truck did not constitute willful or wanton misconduct. The trial court further found the firefighters were entitled to immunity pursuant to R.C. 2744.03(A)(6)(b) because Anderson failed to present any evidence that the firefighters had acted with malicious purpose, in bad faith, or in a wanton or reckless manner.


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