Anderson v. City of Massillon

Decision Date21 March 2011
Docket NumberNo. 2010 CA 00196.,2010 CA 00196.
Citation193 Ohio App.3d 297,951 N.E.2d 1063
PartiesANDERSON, Adm., Appellant,v.CITY OF MASSILLON et al., Appellees.
CourtOhio Court of Appeals

OPINION TEXT STARTS HERE

Tzangas, Plakas, Mannos & Raies, Ltd., and Lee E. Plakas, Canton; and Davis & Young and David G. Utley, for appellant.Wiley & Matthews, Gregory A. Beck, and Mel L. Lute Jr., North Canton, for appellees.WISE, Judge.

{¶ 1} Appellant Cynthia Anderson, administrator of the estates of Ronald E. Anderson and Javarre J. Tate, appeals the trial court's July 15, 2010 judgment entry granting appellees' motion for summary judgment.

{¶ 2} Appellees are the city of Massillon, Susan Toles, and Rick Annen.

STATEMENT OF THE FACTS AND CASE

{¶ 3} This case concerns Ohio's statute on sovereign immunity for municipalities and their employees—specifically, whether a municipality and a member of the city's fire department have immunity when the employee causes an accident when responding to an emergency.

{¶ 4} On the morning of May 6, 2008, an accident occurred at the intersection of Johnson Street and Walnut Street, when the vehicle being operated by Ronald Anderson collided with Massillon City Fire Aerial Ladder Truck 211, resulting in the deaths of Ronald Anderson and his grandson, Javarre Tate.

{¶ 5} On that morning, the following events transpired:

{¶ 6} At 8:30:32 a.m., Massillon resident Tammy Lockey called 9–1–1 to report a car fire she observed out her window. The call was received by the RED Center, the central dispatch for Massillon and other political subdivisions. Dispatcher Lynne Martin Joiner received the call. Joiner routed the call to Thomas Thornberry, the fire dispatcher, and he consulted his computer to dispatch the first available fire engine in Massillon. Thornberry, a 26–year veteran dispatcher, inquired of Joiner whether the fire was near a house.

{¶ 7} At 8:31:40, a tone was sounded in Station 1 of the Massillon Fire Department for Engine 214 to respond to the car fire. Pursuant to department policy, a single fire engine, such as Engine 214, and a separate truck would respond to car fires. However, also pursuant to policy, the dispatcher is required to inquire whether the car fire is near a building or structure in order to determine which vehicles to dispatch. Based on this policy, dispatcher Joiner called 9–1–1 caller Tammy Lockey back and inquired as to whether the fire was near a house. Joiner interpreted the information she received as indicating that the car fire was near a house, and she relayed this information to Thornberry. Based on this new information, Thornberry then toned Station 1 at 8:33:03 and dispatched the second engine, Engine 211, a 75–foot aerial ladder truck.

{¶ 8} At 8:33:43 engine 214 left Station 1, operated by Firefighter Greenwood, commanded by Captain Smith. Engine 214 proceeded down Erie Street to Walnut Street toward the dispatched location.

{¶ 9} At 8:34:25, Ladder Truck 211, operated by Firefighter Susan Toles and commanded by Captain Rich Annen, left Station 1 and began to follow the same route as Engine 214 toward the fire.

{¶ 10} A school bus yielded to Engine 214 at Third Street, then traveled down Walnut and through the subject intersection before Ladder Truck 211 appeared. The bus then pulled over east of the intersection as Ladder Truck 211 approached.

{¶ 11} At the same time that Ladder Truck 211 was travelling east on Walnut Street, SE, Ronald Anderson was travelling north on Johnson Street, SE, in Massillon, with his grandson Javarre Tate as a passenger in his vehicle.

{¶ 12} Walnut Street is a two-lane road in a residential area. The intersection of Walnut and Johnson is a three-way stop, with a red flashing light for all traffic. A large tree was located on the corner of Walnut and Johnson Streets. Appellant claims that this tree, along with a utility pole, a fence, bushes, and a house close to the street, obstructed a clear view of the intersection.

{¶ 13} The posted speed limit in this area is 25 miles per hour.

{¶ 14} Toles stated that she exceeded the speed limit, but described the emergency run as a “normal call, a normal run.”

{¶ 15} As Ladder Truck 211 proceeded to the fire, lights, the wail siren, and the air horn were engaged. Additionally, Annen, who was seated in the passenger seat next to Toles, sounded the air horn at intersections.

{¶ 16} Toles stated that she could clearly see the intersection of Johnson and Walnut Streets as she approached. Annen stated that although there is a tree at that intersection, one can see through the branches to the intersection.

{¶ 17} Toles recalled that when she saw the school bus pulled over on Walnut Street in her lane of travel east of the intersection, she 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 that the school bus was yielding, she moved left of center because of the presence of a parked car and the bus. Toles stated that she scanned the entire intersection to make sure the intersection was clear and determined that there was no one in the intersection.

{¶ 18} According to Toles, as she approached the intersection, she saw the Anderson van “shoot out in front” of Ladder Truck 211. She stated that she began to move “immediate[ly] left even more, to try to avoid his vehicle and get around.” Just prior to the moment that she saw the van pull out in front of Ladder Truck 211, Toles stated that she heard Annen say, He's not stopping.” Toles recalled seeing the Anderson van go “completely through the stop sign right in front” of Ladder Truck 211. Toles stated that she never saw the Anderson vehicle stopped at the stop sign. Ladder Truck 211 collided with Anderson's vehicle, resulting in the deaths of both Ronald Anderson and Javarre Tate.

{¶ 19} Eyewitnesses stated that appellees did not slow down or stop before proceeding through intersection.

{¶ 20} Appellant Cynthia Anderson, the administrator of the estates of her husband, Ronald E. Anderson, and her grandson, Javarre Tate, filed a wrongful-death action, asserting claims against appellees Susan Toles, Richard Annen, and the city of Massillon.

{¶ 21} On May 19, 2010, appellant filed a motion for partial summary judgment on the issue of liability.

{¶ 22} On May 19, 2010, appellees also filed a motion for summary judgment asserting the affirmative defense of sovereign immunity.

{¶ 23} On July 15, 2010, following the filing of response and reply briefs by the parties, the trial court granted appellees' motion for summary judgment and denied appellant's motion for partial summary judgment.

{¶ 24} Appellant now appeals to this court, assigning the following error for review:

ASSIGNMENT OF ERROR

{¶ 25} “I. The trial court erred as a matter of law in granting summary judgment to defendants/appellees.”

SUMMARY JUDGMENT

{¶ 26} 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, 30 OBR 78, 506 N.E.2d 212. Therefore, we must refer to Civ.R. 56, which provides: “Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case 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. * * * A summary judgment shall not be rendered unless it appears from the evidence or stipulation, and only from the evidence or stipulation, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence or stipulation construed most strongly in the party's favor.”

{¶ 27} Pursuant to the above rule, a trial court may not enter summary judgment if it appears that a material fact is genuinely disputed. The party moving for summary judgment bears the initial burden of informing the trial court of the basis for its motion and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact. The moving party may not make a conclusory assertion that the nonmoving party has no evidence to prove its case. The moving party must specifically point to some evidence that demonstrates that the nonmoving party cannot support its claim. If the moving party satisfies this requirement, the burden shifts to the nonmoving party to set forth specific facts demonstrating that there is a genuine issue of material fact for trial. Vahila v. Hall (1997), 77 Ohio St.3d 421, 429, 674 N.E.2d 1164, citing Dresher v. Burt (1996), 75 Ohio St.3d 280, 662 N.E.2d 264.

{¶ 28} It is based upon this standard that we review appellant's assignments of error.

{¶ 29} In her sole assignment of error, appellant argues that the trial court erred in finding that appellee was immune from liability under R.C. 2744.01 et seq. We agree.

{¶ 30} The Supreme Court of Ohio has held:

{¶ 31} “Determining whether a political subdivision is immune from tort liability pursuant to R.C. Chapter 2744 involves a three-tiered analysis. Greene Cty. Agricultural Soc. v. Liming (2000), 89 Ohio St.3d 551, 556–557, 733 N.E.2d 1141. The first tier is the general rule that a political subdivision is immune from liability incurred in performing either a governmental function or proprietary function. Id . at 556–557, 733 N.E.2d 1141; R.C. 2744.02(A)(1). However, that immunity is not absolute. R.C. 2744.02(B); Cater v. Cleveland (1998), 83 Ohio St.3d 24, 28, 697 N.E.2d 610.

{¶ 32} “The second tier of the analysis requires a court to determine whether any of the five exceptions to immunity listed in R.C. 2744.02(B) apply to expose the...

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4 cases
  • Anderson v. City of Massillon
    • United States
    • Ohio Supreme Court
    • December 6, 2012
    ...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 ......
  • Mashburn v. Dutcher
    • United States
    • Ohio Court of Appeals
    • December 27, 2012
    ...951 N.E.2d 1046, and rev'd by Anderson v. Massillon, 134 Ohio St.3d 380, 2012-Ohio-5711, 983 N.E.2d 266 and Anderson v. Massillon, 193 Ohio App.3d 297, 2011-Ohio-1328, 951 N.E.2d 1063 (5th Dist.2011), appeal allowed 129 Ohio St.3d 1449, 2011-Ohio-4217, 951 N.E.2d 1046 and aff'd by Anderson ......
  • Anderson v. City of Massillon
    • United States
    • Ohio Court of Appeals
    • June 9, 2014
    ...bad faith, or in a wanton or reckless manner. {¶18} Anderson appealed the trial court's judgment entry to this court. In Anderson v. Massillon, 193 Ohio App.3d 297, 2011-Ohio-1328, 951 N.E.2d 1063 (5thDist.) ("Anderson I"), we reversed the judgment of the trial court. We held there was a ge......
  • Anderson v. Massillon
    • United States
    • Ohio Supreme Court
    • December 31, 2012

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