Anderson v. City of Massillon

• Decision Date: 06 December 2012
• Docket Number: No. 2011–0743.,2011–0743.
• Citation: 983 N.E.2d 266,134 Ohio St.3d 380
• Parties: ANDERSON, Admr., Appellee, v. The CITY OF MASSILLON et al., Appellants.
• Court: Ohio Supreme Court

134 Ohio St.3d 380
983 N.E.2d 266

ANDERSON, Admr., Appellee,
v.
The CITY OF MASSILLON et al., Appellants.

No. 2011–0743.

Supreme Court of Ohio.

Submitted Feb. 8, 2012.
Decided Dec. 6, 2012.

[983 N.E.2d 267]

[Ohio St.3d 380]Syllabus of the Court

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

Tzangas, Plakas, Mannos & Raies, Ltd., David L. Dingwell, James G. Mannos, and Edmond J. Mack, Canton; and Davis & Young and David G. Utley, Akron, for appellee.

Baker, Dublikar, Beck, Wiley & Mathews, Gregory A. Beck, Mel L. Lute Jr., and James F. Mathews, North Canton, for appellant.

Murray & Murray Co., L.P.A., John T. Murray, and Patrick G. O'Connor, Sandusky, urging affirmance on behalf of amici curiae John Huffman and Olivia Duty.

Landskroner, Grieco, Merriman, L.L.C., and Drew Legando, Cleveland, urging affirmance on behalf of amicus curiae Ohio Association for Justice.

O'DONNELL, J.

[Ohio St.3d 381]{¶ 1} The city of Massillon and firefighters Susan Toles and Richard Annen appeal from a judgment of the Fifth District Court of Appeals that reversed a trial

[983 N.E.2d 268]

court decision entering summary judgment in their favor. Cynthia Anderson filed a wrongful-death action against the city and the firefighters arising out of the deaths of Ronald E. Anderson, her husband, and Javarre J. Tate, her grandson, who died when a Massillon fire engine operated by Toles and commanded by Annen collided with her husband's vehicle.

{¶ 2} Relevant to this appeal are two statutes, one relating to a defense available to political subdivisions and the other relating to immunity for employees of political subdivisions. R.C. 2744.02(B)(1)(b) affords political subdivisions a full defense to liability for injuries caused by the operation of a fire-department vehicle responding to an emergency if the operation of the vehicle does not constitute willful or wanton misconduct. R.C. 2744.03(A)(6)(b) provides immunity to political-subdivision employees for acts or omissions not committed in a wanton or reckless manner.

{¶ 3} The appellate court determined that the willful or wanton misconduct referred to in R.C. 2744.02(B)(1)(b) is the functional equivalent of recklessness. Admittedly, these degrees of care have been confused, but they have different meanings, involve different degrees of culpability, and are not interchangeable. Accordingly, we clarify their meaning, and we affirm the judgment of the court of appeals but remand the case to the common pleas court for further proceedings to determine, pursuant to our clarification of these terms, whether the city has a full defense to liability and whether the firefighters are entitled to immunity.

Facts and Procedural History

{¶ 4} On the morning of May 6, 2008, Tammy Lockey called 9–1–1 to report a car fire at 1272 Huron Road in Massillon, Ohio. The fire dispatcher, Thomas Thornberry, called for Engine 214, a pumper truck, to respond. However, after the caller indicated that the car fire was near a house, Thornberry dispatched Engine 211, an aerial ladder truck.

{¶ 5} Engine 214 left the station before Engine 211, headed south on Erie Street, and turned east on Walnut Road. Engine 211, driven by Toles and commanded by Annen, followed the same route.

{¶ 6} Walnut Road is a narrow, two-lane street in a residential area with a speed limit of 25 m.p.h. Stop signs and a flashing red light control the intersection traffic at Walnut Road and Johnson Street. A tree, a utility pole, a fence, bushes, cars, and a house close to the street partially obstructed the view of traffic approaching the intersection on Walnut Road.

[Ohio St.3d 382]{¶ 7} Firefighter Batavius 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, according to the driver of a car behind his van, Ronald Anderson, who was taking his grandson to preschool, approached the intersection from the south, stopped at the stop sign, and waited for Engine 214 to pass.

{¶ 8} Seconds later, Engine 211 approached the intersection traveling at a speed in excess of the posted limit. Toles slowed the engine as she approached a school bus that had stopped beyond the intersection to ensure that no children were in the street and that the intersection was clear of traffic. The firefighters did not see Ronald Anderson's minivan stopped on Johnson Street at Walnut Road.

{¶ 9} As Engine 211 approached, Anderson entered the intersection, and the fire truck broadsided the minivan, crushing the driver, ejecting Tate, and pushing the van for more than 360 feet before it

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came to rest. Tragically, both Anderson and Tate died.

{¶ 10} Fredrick J. Cook, a state trooper, assisted in the investigation of the accident, and in his reconstruction report, he calculated that Engine 211 had been traveling between 44 and 50 m.p.h. He 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.

{¶ 11} 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 her grandson.

{¶ 12} Her expert, Choya R. Hawn, calculated the fire truck's minimum speed at the point of impact to be between 49 and 52 m.p.h., and 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 m.p.h. or slower to ensure the ability to stop, and 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.

{¶ 13} Scott A. Noll, an accident reconstructionist who testified for the city and the firefighters, concluded that Engine 211 had traveled at 39 m.p.h. and that Toles had allowed adequate time and distance to evaluate the lanes of travel before proceeding through the intersection. Noll further opined that Anderson had caused the accident by failing to stop at the stop sign.

[Ohio St.3d 383]{¶ 14} The city, Toles, and Annen moved for summary judgment, and the trial court ruled in their favor, concluding that the city 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 court further concluded that 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.

{¶ 15} The Fifth District reversed, stating that based on “the high rate of speed at which [the fire truck] was traveling in conjunction with the claimed obstructions in the intersection that would interfere with a clear view of the whole intersection, we find that reasonable minds could find that [Toles and Annen's] actions in this case were reckless” and that the firefighters therefore were not entitled to immunity pursuant to R.C. 2744.03(A)(6)(b). Anderson v. Massillon, 193 Ohio App.3d 297, 2011-Ohio-1328, 951 N.E.2d 1063, ¶ 73 (5th Dist.). The court also stated that “[t]he ‘wanton or reckless misconduct’ standard set forth in R.C. 2744.03(A)(6) and [the] ‘willful or wanton misconduct’ standard set forth in R.C. 2744.02(B)(1)(b) are functionally equivalent.” Id. at ¶ 46. The appellate court ruled that the city and its firefighters were not immune if the firefighters had acted recklessly in causing the collision. Id. at ¶ 73. It held that genuine issues of material fact existed whether the firefighters' operation of the vehicle was reckless, and thus summary judgment was not appropriate. Id. at ¶ 74–75.

{¶ 16} The city of Massillon, Toles, and Annen appealed to this court and contend that the terms “willful,” “wanton,” and

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“reckless” are not interchangeable but describe different degrees of care. They contend that R.C. 2744.02(B)(1)(b) affords a full defense to political-subdivision liability for the operation of a fire truck responding to an emergency if the operation of the vehicle does not constitute willful or wanton misconduct, and they point out that “the General Assembly did not include reckless conduct as part of [the] exception from the ‘full defense to * * * liability’ found therein.” Further, they argue...