Bowersock v. Addlesburger

Decision Date27 December 2019
Docket NumberCase No. 19CA13
Citation2019 Ohio 5447
PartiesMARIAH BOWERSOCK, et al., Plaintiffs-Appellants, v. GEORGE ADDLESBURGER, et al., Defendants-Appellees.
CourtOhio Court of Appeals



Ethan Vessels, Marietta, Ohio for appellants.

Gregory A. Beck, Andrea K. Ziarko, and Daniel D. Eisenbrei, North Canton, Ohio, for appellees.



{¶ 1} This is an appeal from a Washington County Common Pleas Court summary judgment in favor of George Addlesburger, Grandview Township Volunteer Fire Department and Grandview Township, defendants below and appellees herein. Mariah Bowersock (by her father, Zachary Bowersock), Zachary Bowersock, and Mandy Bowersock, plaintiffs below and appellants herein, assign the following error for review:


{¶ 2} On April 20, 2018, Breckin Hoff, Connie Merckle (Breckin's grandmother), and Mariah (Breckin's girlfriend) sustained serious injuries in an automobile accident. Before the accident, Hoff's vehicle had been stopped at a stop sign located at the corner of Merchant Street and State Route 7. As Hoff attempted to cross State Route 7, Addlesburger's vehicle collided with Hoff's vehicle. At the time of the accident, Addlesburger, a volunteer firefighter with the Grandview Township Volunteer Fire Department, was driving his personal vehicle while responding to a reported structural fire.

{¶ 3} Appellants filed a personal injury complaint against multiple parties and alleged that Mariah's injuries resulted from Addlesburger's wanton and reckless operation of his vehicle. Appellants averred that, at the time of the accident, Addlesburger's vehicle was not equipped with a siren and did not display activated emergency lights. Appellants further asserted that Addlesburger did not attempt to slow down and did not attempt to clear the intersection before he continued through the intersection where the accident occurred. Appellants further claimed that Addlesburger did not have the vehicle inspected for at least two years before the crash, and the failure to have his vehicle inspected demonstrated a willful, deliberate, wanton, and reckless disregard for public safety.

{¶ 4} Appellees later requested summary judgment and argued that they are immune from liability under R.C. Chapter 2744. Appellees contended that even if an exception to immunity applies, appellants cannot present any evidence to demonstrate a genuine issue of material fact as to whether any of appellees' conduct could be construed as willful, wanton, or reckless so as to impose liability. In opposition, appellants asserted that genuine issues of material fact remain regarding whether Addlesburger acted wantonly or recklessly. Appellants alternatively asked the court to find that Addlesburger's conduct was wanton and reckless as a matter of law. Appellants claimed that Addlesburger wantonly or recklessly operated the vehicle by speeding and by failing to use a siren and emergency lights. Appellants additionally argued that Addlesburger's failure to have his vehicle annually inspected shows that he engaged in wanton or reckless conduct because if Addlesburger had his vehicle inspected, the vehicle would have been equipped with a working siren and emergency lights. Appellants further claimed that an inspection would have revealed that the vehicle had purportedly faulty brakes.

{¶ 5} To support their arguments, the parties referred to the depositions filed in the case. Fire Chief Roger Weddle stated that Addlesburger violated a departmental rule by not having an operational siren when responding to the fire. The chief explained that part of the reason for the vehicle inspections is to ensure that the lights and sirens are in proper working order.

{¶ 6} Addlesburger stated that on the date of the accident, he used his personal vehicle to respond to the fire. Addlesburger claimed that his emergency lights were activated and that they remained activated until the collision. He explained that his siren had been inoperable for approximately two weeks before the collision. Addlesburger also agreed that he had been speeding before the accident, but he did not believe that speeding on State Route 7 en route to a fire without a siren was unsafe. Addlesburger explained that he had a clear view of the roadway and that nothing obstructed his vision.

{¶ 7} Addlesburger indicated that he did not slow down before approaching Merchant Street because he did not see a reason to slow down. Addlesburger had been driving straight ahead and, with his eyes focused upon the roadway in front of him, as he "was approaching the intersection [with Merchant Street] and all of a sudden, boom, the car is there." Addlesburger reported that as soon as he saw Hoff's vehicle, he slammed on the brakes so hard that it felt as if a brake line had broken.

{¶ 8} Hoff stated that before he attempted to cross State Route 7, he looked both ways and believed that he could safely cross State Route 7. Hoff explained that he did not notice any oncoming traffic, that he did not hear any sirens or see any flashing lights.

{¶ 9} After the trial court considered the summary judgment request and the evidentiary materials, the court determined that appellants failed to present any evidence to show that Addlesburger acted willfully, wantonly, or recklessly. The court thus entered summary judgment in appellees' favor. This appeal followed.

{¶ 10} In their sole assignment of error, appellants assert that the trial court erred by entering summary judgment in appellees' favor. Appellants contend that the following circumstances demonstrate that genuine issues of material fact remain as to whether Addlesburger acted wantonly or recklessly: (1) Addlesburger "was speeding at double the speed limit in the middle of New Matamoras in the middle of the day"; (2) Addlesburger did not look "to the left or right for any other vehicles that may enter his path"; (3) Addlesburger's vehicle had defective brakes; (4) Addlesburger's vehicle lacked a working siren; (5) Addlesburger was speeding toward a fire that did not involve a danger to life; and (6) Addlesburger's vehicle had not been inspected in the year before the accident. Appellants additionally argue that the failure to perform maintenance of a firefighter's vehicle constitutes a proprietary function and the failure to inspect the vehicle is one of the circumstances that a court may consider when it reviews whether Addlesburger wantonly or recklessly operated his motor vehicle.

{¶ 11} Initially, we note that appellate courts conduct a de novo review of trial court summary judgment decisions. E.g., State ex rel. Novak, L.L.P. v. Ambrose, 156 Ohio St.3d 425, 2019-Ohio-1329, 128 N.E.3d 1329, ¶ 8; Pelletier v. Campbell, 153 Ohio St.3d 611, 2018-Ohio-2121, 109 N.E.3d 1210, ¶ 13; Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Accordingly, an appellate court must independently review the record to determine if summary judgment is appropriate and need not defer to the trial court's decision. Grafton, 77 Ohio St.3d at 105.

{¶ 12} Civ.R. 56(C) provides, in relevant part, as follows:

* * * * 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. No evidence or stipulation may be considered except as stated in this rule. 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.

{¶ 13} Accordingly, pursuant to Civ.R. 56, a trial court may not award summary judgment unless the evidence demonstrates that: (1) no genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) after 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. Pelletier at ¶ 13; M.H. v. Cuyahoga Falls, 134 Ohio St.3d 65, 2012-Ohio-5336, 979 N.E.2d 1261, ¶ 12; Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977).

{¶ 14} R.C. Chapter 2744 sets forth the rules to determine whether a political subdivision and its employees are immune from liability. McConnell v. Dudley, Slip Opinion, — Ohio St.3d —, 2019-Ohio4740, — N.E.3d. —, ¶ 20; Argabrite v. Neer, 149 Ohio St.3d 349, 2016-Ohio-8374, 75 N.E.3d 161, ¶ 6. A three-step analysis applies when determining a political subdivision's immunity from liability. Cramer v. Auglaize Acres, 113 Ohio St.3d 266, 270, 2007-Ohio-1946, 865 N.E.2d 9, ¶ 14; Colbert v. Cleveland, 99 Ohio St.3d 215, 2003-Ohio-3319, 790 N.E.2d 781, ¶ 7; Leasure v. Adena Local School Dist., 2012-Ohio-3071, 973 N.E.2d 810, ¶ 13-14 (4th Dist.). First, R.C. 2744.02(A)(1) sets forth the general rule that a political subdivision is immune from tort liability for acts or omissions connected with governmental or proprietary functions. Cramer at ¶ 14; Colbert at ¶ 7; Harp v. Cleveland Hts., 87 Ohio St.3d 506, 509, 721 N.E.2d 1020 (2000). Second, R.C. 2744.02(B) lists five exceptions to the general immunity granted to political subdivisions under R.C. 2744.02(A)(1). Cramer at ¶ 15; Ryll v. Columbus Fireworks Display Co., 95 Ohio St.3d 467, 470, 2002-Ohio-2584,...

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