Clark v. Campbell, Case No. 19CA3673
| Citation | 2020 Ohio 3333 |
| Decision Date | 05 June 2020 |
| Docket Number | Case No. 19CA3673 |
| Parties | CHRISTOPHER A. CLARK, Plaintiff-Appellee, v. TERRI D. CAMPBELL, ET AL., Defendants-Appellants. |
| Court | United States Court of Appeals (Ohio) |
DECISION AND JUDGMENT ENTRY
APPEARANCES:
Josh L. Schoenberger, Williams & Schoenberger Co. LLC, Columbus, Ohio, for Appellants.
Michael D. O'Neill, Gary F. Franke, Gary F. Franke Co. L.P.A., Cincinnati, Ohio, for Appellee.
Timothy McKay, Cincinnati, Ohio, for Defendant The Standard Fire Insurance Company.1
{¶1} Terri D. Campbell ("Appellant Campbell") and the Ross County Board of Developmental Disabilities ("Appellant Ross County") appeal the trial court's February 4, 2019 judgment which overruled their joint motion for summary judgment. Both Appellants sought summary judgment on thebasis of their entitlement to sovereign immunity pursuant to Chapter 2744 and, in the alternative, immunity pursuant to the Workers' Compensation Chapter 4123. As will be discussed below, we conclude that the trial court erred in denying summary judgment to Appellants. Accordingly, we sustain the third assignment of error and need not consider the first and second assignments of error as those have become moot. We hereby reverse the judgment of the trial court.
{¶2} On October 20, 2015, Christopher Clark ("Appellee") and Appellant Campbell were involved in a motor vehicle collision in Ross County, Ohio. Appellee was operating an all-terrain vehicle (ATV). Appellant Campbell was operating a Dodge caravan owned by Appellant Ross County. Appellant Ross County provides services to individuals with developmental disabilities.
{¶3} Appellant Campbell is the transportation coordinator for Appellant Ross County. On the date of the accident, Appellant Campbell had been assisting in searching for a child missing from the Pioneer Center. The Pioneer Center is a school for special needs individuals ages 5-21.
{¶4} On January 17, 2017, Appellee filed suit alleging personal injuries and medical expenses against both appellants and The Standard Fire Insurance Company, alleging that Appellant Clark was negligent. Further, Appellee alleged that Appellant Campbell was in the course and scope with her employment with Appellant Ross County. Appellee also asserted a claim for respondeat superior/wrongful entrustment against Appellant Ross County. Appellee's claim against the insurance company was for uninsured/underinsured motorist coverage.
{¶5} The defendants filed answers denying liability. Particularly, Appellant Ross County asserted that it is not sui juris and is not a proper party defendant. Appellant Ross County further asserted that both appellants are statutorily immune from tort liability for negligence under R.C. 2744. Appellant Ross County also asserted that Appellee's claims against Appellant Campbell are barred by the exclusivity of the workers' compensation remedy under R.C. 4123.741, and Appellee's claims against Appellant Ross County are barred by the exclusivity of the workers' compensation remedy available under R.C. 4123.74.
{¶6} The parties engaged in written discovery. The record indicates the parties deposed Appellee. The parties also deposed Leia Snyder and Appellant Campbell. Leia Snyder is superintendent of Ross DD. At the time of the accident, Snyder was employed as assistant superintendent.
{¶7} Snyder testified that she assists in drafting policies and procedures and oversees implementation of the policies and procedures. The situation involving the missing child was considered an MUI (Major Unusual Incident.) On the date of the accident general policies and procedures were established; however, Snyder is not sure if there was anything specific as to missing children.
{¶8} On October 20, 2017, Snyder received a phone call in the afternoon and learned that a child was missing. Snyder immediately instructed the administrative secretary with regard to requests for information. She also notified other management team members and left the building to assist in the search. Snyder testified Appellant Campbell's job duties involved handling the logistics of transportation and scheduling and overseeing transportation employees. Snyder testified Appellant Campbell's job duties did not involve searching for missing children.
{¶9} Appellant Campbell testified she began working for the Ross County Board of Developmental Disabilities in 2009 as a substitute bus driver. In 2015, she became transportation coordinator. Appellant Campbell has a CDL-Class B. She drives on all the field trips, approves trips, and coordinates routes with other school districts. Appellant Campbell is also a certified OBI (On-board Instructor.) She schedules trainings and actually trains others to drive a school bus and school van. Appellant Campbell has a driving restriction for her vision. She has never received EMT or search and rescue training relating to her job with Appellant Ross County. Her daily work day begins at 8:00 a.m. and ends at 3:00 p.m.
{¶10} Appellant Campbell testified that around 2:30 p.m. she learned a child was missing from the Pioneer Center. Appellant Campbell immediately got into the van owned by the board of developmental disabilities and went to assist in the search. Her testimony was there was no formal search policy on that date: "they just really said like all-hands—you know, everyone to look."
{¶11} Appellant Campbell first searched near the Pioneer Center. Then she went to a nearby golf course. Other staff were at the golf course searching. Appellant Campbell thereafter received information that the child was near Veterans Parkway.
{¶12} The Veterans Parkway has two lanes of travel going opposite directions. There is no turn lane. The speed limit is 55-miles per hour. The Triangle Bike Path runs parallel to the Veterans Parkway. The Triangle Bike Path is for bicycles and pedestrians and is approximately five feet wide, with no lane markings and no speed limit markers.
{¶13} Appellant Campbell immediately drove to the parkway. She was stopped at a red light. Shortly after arrival at the Veterans Parkway area, Appellant Campbell received a phone call advising her that the missing child had been located.
{¶14} At this point, Appellant Campbell testified that she turned onto Veterans Parkway and pulled into a turnaround spot in a private drive. She talked with a couple of other Appellant Ross County employees and advised them that the child was found. The other employees left. Appellant Campbell proceeded to turn the van to leave. She testified that in order to exit the Veterans Parkway one has to cross the bike path, and that the turnaround area is approximately five feet wide and paved.
{¶15} Appellant Campbell testified she looked both ways. The nose of her vehicle was heading back onto the bike path when she incurred a hard impact on the passenger side of the van from Appellee's ATV. At the time of impact, Appellant Campbell was talking on her cell phone to a secretary at Pioneer Center, confirming that the child was found. Appellant Campbell denied seeing Appellee prior to the impact. The collision happened around 3:30 p.m.
{¶16} Appellant Campbell testified she exited the van and went to Appellee. She held his head. She learned he was also looking for the child.
{¶17} Both deponents testified there was a cell phone policy in place. Generally, one was not to use the cell phone while operating a work motor vehicle.
{¶18} On August 1, 2018, Appellants jointly filed a motion for summary judgment. The Ross County Common Pleas Court docket sheet also reveals that on that date the depositions of Terri Campbell and Leia Snyder were filed with the court. The docket does not reflect that the deposition of Christopher Clark has ever been filed in this matter.2
{¶19} Appellee filed a Memorandum in Opposition to Defendants' Motion for Summary Judgment. Appellants jointly filed a reply. On February 4, 2019, the trial court entered its order finding that there exist genuine issues of material fact and overruling the motion for summary judgment. This timely appeal followed. Additional pertinent facts will be set forth below.
{¶20} Appellate review of summary judgment decisions is de novo, governed by the standards of Civ.R. 56. Vacha v. N. Ridgeville, 136 Ohio St.3d 199, 2013-Ohio-3020, 992 N.E.2d 1126, ¶ 19; Citibank v. Hine, 130 N.E.3d 924, 2019-Ohio-464 (4th Dist.) at ¶27. Summary judgment is appropriate if the party moving for summary judgment establishes that (1) there is no genuine issue of material fact, (2) reasonable minds can come to but one conclusion, which is adverse to the party against whom the motion is made and (3) the moving party is entitled to judgment as a matter of law. Capital One Bank (USA) N.A. v. Rose, 4th Dist. Ross No. 18CA3628, 2018-Ohio-2209, at ¶ 23; Civ.R. 56; New Destiny Treatment Ctr., Inc. v. Wheeler, 129 Ohio St.3d 39, 2011-Ohio-2266, 950 N.E.2d 157, ¶ 24; Chase Home Finance, LLC v. Dunlap, 4th Dist. Ross No. 13CA3409, 2014-Ohio-3484, ¶ 26.
{¶21} The moving party has the initial burden of informing the trial court of the basis for the motion by pointing to summary judgment evidence and identifying parts of the record that demonstrate the absence of a genuine issue of material fact on the pertinent claims. Dresher v. Burt, 75 Ohio St.3d 280, 293, 662 N.E.2d 264 (1996); Chase Home...
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