Davis v. Brown Local Sch. Dist.

• Decision Date: 24 January 2019
• Docket Number: No. 17 CO 0026,17 CO 0026
• Parties: Kelli D. DAVIS, Administrator, Plaintiff-Appellee, v. BROWN LOCAL SCHOOL DISTRICT, et al., Defendants-Appellants.
• Court: Ohio Court of Appeals

131 N.E.3d 431

2019 Ohio 246

Kelli D. DAVIS, Administrator, Plaintiff-Appellee,

v.BROWN LOCAL SCHOOL DISTRICT, et al., Defendants-Appellants.

No. 17 CO 0026

Court of Appeals of Ohio, Seventh District, Columbiana County.

Dated: January 24, 2019

Attys. Dale Cook, Mark Landes, and Brandon Abshier, Two Mironova Place, Suite 700, Columbus, Ohio 43215, for Appellants and

Atty. Stephen Griffin, 4051 Whipple Avenue NW, Suite 201, Canton, Ohio 44718 and Atty. Michael Kahlenberg, 825 South Main Street, North Canton, Ohio 44720, for Appellee.

BEFORE: Kathleen Bartlett, Gene Donofrio, Cheryl Waite, Judges.

OPINION AND JUDGMENT ENTRY

Bartlett, J.

{¶1} Appellants Brown School District and Tanya S. McLaughlin appeal the judgment entry of the Columbiana County Court of Common Pleas denying their motion for summary judgment on the basis of political-subdivision immunity. The First Amended Complaint, filed by Appellee Kelli Davis, Administrator of the Estate of Storm Angione, Deceased, states seven causes of action, including wrongful death, survivorship, and loss of chance, as well as punitive damages claims, against the school district; Deborah Dustman, a bus driver employed by the school district; Columbiana County; McLaughlin, a dispatcher employed by Columbiana County; the Columbiana County Sheriff's Office; Columbiana County Sheriff Raymond L. Stone; and the Columbiana County Commissioners. The Commissioners and the survivorship and punitive damages claims were voluntarily dismissed prior to the summary judgment entry.

{¶2} Appellee contends that Dustman breached her duty of care to other motorists when she failed to reduce the speed of the bus she was driving below the posted limit due to inclement weather. Angione was a passenger in an automobile traveling westbound on a two-lane highway that lost control, slid completely into Dustman's eastbound lane of traffic, and collided with her school bus. Finding no evidence in the record of wanton or reckless conduct, the trial court entered summary judgment in favor of Dustman on the employee claim against her, but denied summary judgment to the school district on the wrongful death claim based on her alleged negligence.

{¶3} Appellee further contends that McLaughlin's failure to dispatch emergency services immediately upon receiving the 9-1-1 call constituted willful and/or reckless conduct. The trial court granted summary judgment in favor of the Sheriff and the County based on McLaughlin's delayed action, but denied summary judgment on the employee claim against McLaughlin. Despite the dismissal of the claim against the County, the trial court recognized the County's continuing obligation to defend McLaughlin.

{¶4} Because Dustman owed no duty of care to Angione, and the evidence of proximate cause is insufficient as a matter of law, we find that the school board is immune from suit. Further, because there is no evidence that McLaughlin failed to act in the face of a great probability of harm, or consciously disregarded a known and obvious risk, we find that she is likewise immune from suit.

I. Facts

{¶5} On the morning of November 22, 2014, Dustman was scheduled to transport the Malvern High School varsity and junior varsity basketball teams to a scrimmage in Lisbon, Ohio. (Dustman Depo. 21). Dustman was unaware that a freezing rain advisory issued by the National Weather Service in Pittsburgh was in effect for Columbiana County from 5:00 a.m. until noon that day. The notification read, "A freezing rain advisory means that freezing rain will cause travel difficulties. Be prepared for icy surfaces and use caution while driving." (Expert Report of Mark Taylor 1).

{¶6} Dustman explained that she does not routinely consult the weather forecast unless it is snowing prior to a bus trip. (Dustman Depo. 36-37). She had previously refused to drive the bus on two occasions due to inclement weather. In the first instance, she encountered black ice, so she pulled the bus to the side of the road and waited until the road department applied rock salt to the surface. The second instance involved heavy snowfall. (Id. 38-39).

{¶7} Dustman drove her automobile to the bus garage, which is approximately a mile and a half from her home. She noticed no signs of ice on the road. (Dustman Aff. ¶ 2.) Dustman conducted a pre-trip check of the bus and then departed on the roughly one-half mile commute to Malvern High School. She observed no signs of ice on the road. (Id. ¶ 3-5). When Dustman arrived at the school, she waited for the team to board the bus. While she was waiting, she observed no signs of ice on the road or on the bus. (Id. ¶ 6).

{¶8} That same morning, Dennis Tucci, coach of the Malvern High School varsity basketball team, drove from his home to Malvern High School, a distance of approximately one mile. (Tucci Aff. ¶ 1, 4). He did not observe any ice on the road, freezing rain, or sleet during his commute. (Id. ) While at the school and prior to boarding the bus, Tucci did not observe any ice or sleet on the roads or on the school bus. (Id. ¶ 5).

{¶9} The bus departed for Lisbon, Ohio through Minerva, Ohio and then east on U.S. Route 30. Dustman made five stops between Malvern High School and the accident. She had no difficulty stopping. (Dustman Depo. 60-61). She never observed any ice on the road. (Id. 73.)

{¶10} Tucci was seated in the first row on the passenger side of the school bus. (Tucci Aff. ¶ 2). Ted Majestic, coach of the junior varsity basketball team, was seated in the first row behind Dustman. (Ted Majestic Aff. ¶ 1-2). Tucci observed a light rain begin to fall while riding on the school bus, but he did not see any freezing rain or ice on the road or the bus during the entire ride. (Tucci Aff. ¶ 6-7). Majestic also recalled a light rain starting to fall as the bus traveled through Minerva, but did not observe any freezing rain or ice on the road during the entire ride. (Majestic Aff. ¶ 3-4). Dustman conceded that she activated her windshield wipers about that time on the lowest setting. (Dustman Depo. 37).

{¶11} That same morning, Jon Winkler was traveling for work from his home in West Salem, Ohio. His route took him through Minerva then eastbound on U.S. Route 30. (John Winkler Aff. ¶ 1). Winkler recalled a light mist in the air as he travelled through Minerva. However, in the roughly one-and-one-quarter hours he travelled before the accident, he never observed any signs of ice on the road and never felt his service truck lose traction. (Id. at ¶ 3-4). Winkler began following the school bus as it travelled approximately 50 m.p.h. eastbound on U.S. Route 30 after passing through Minerva. (Id. at ¶ 5-6).

{¶12} U.S. Route 30 is flanked by a guardrail on its south side and an embankment on its north side at the crash site. (Id. ¶ 17). As Dustman was traveling eastbound on U.S. Route 30, she observed the Ford Taurus being driven by Savannah Russell traveling westbound. (Dustman Aff. ¶ 11.) Angione was in the front passenger seat and A'Liyia Hancock was in the back seat. The school bus was traveling approximately 50 m.p.h. (Id. ¶ 10). The posted speed limit was 55 m.p.h. (Dustman Depo. 49).

{¶13} The Ford Taurus lost control and began to rotate counter-clockwise as it traveled across the centerline of the road. (Dustman Aff. ¶ 12). With the Ford Taurus turned sideways and approaching the bus down the centerline of the road, (Dustman Aff. ¶ 13; Majestic Aff. ¶ 5; Tucci Aff. ¶ 8), Dustman braked but had no means of avoidance due to the guardrail to her right and the Ford Taurus directly in her path. (Dustman Depo. 72; Dustman Aff. ¶ 13). The passenger side of the Ford Taurus collided with the bus. (Christopher T. Jester Depo 26.) The impact occurred while both vehicles were completely in Dustman's lane of traffic. (Id. 27-28).

{¶14} When the school bus's brake lights activated, Winkler saw the Ford Taurus sliding sideways into the eastbound lane of traffic and then saw the two vehicles collide. (Winkler Aff. ¶ 8). After colliding with the bus, the Ford Taurus struck the guardrail along the south side of U.S. Route 30 several times and came to a stop in the eastbound lane. (Id. ¶ 10). Winkler applied his brakes with great force in order to avoid hitting the Ford Taurus. He had no problems slowing his vehicle and noticed no signs of his vehicle sliding while trying to stop. (Id. ¶ 11).

{¶15} Winkler immediately parked his service truck on a side road and approached the Ford Taurus on foot. (Id. ¶ 12-14). He observed no signs of life from any of the occupants. They were motionless, not breathing, and their eyes were open. Winkler did not hear any sounds of distress. (Id. ¶ 15).

{¶16} After the collision, Majestic's first concern was the possibility that one or more of the students under his supervision had sustained injuries. (Majestic Aff. ¶ 9). Within two to three minutes after the collision, after Majestic confirmed that no one on the bus was injured, he walked back to the Ford Taurus. (Id. ¶ 10). Majestic noticed no ice on the road. (Id. ¶ 11). When he reached the Ford Taurus, he attempted to communicate with the occupants, but did not receive any response. He saw no movement, breathing, or any signs of life. (Id. ¶ 12-14.)

{¶17} Tucci called the Sheriff's Department direct line to report the accident, then exited the bus and walked back to the Ford Taurus. (Tucci Aff. ¶ 10-11). He asked the occupants of the Ford Taurus if anyone was okay and whether they could hear his voice, but received no response. Tucci observed no movement or any signs of life. (Id. ¶ 12-14).

{¶18} Dustman testified that the road became slick roughly ten or fifteen minutes after the accident. (Dustman Depo. ¶ 58-59). She explained that the roads began icing over between the accident and the arrival of the Ohio State Highway Patrol ("OSHP"). (Id. ) Based on the weather and road conditions, Tucci opined that Dustman was driving at a reasonable and safe speed and could not have avoided the collision. (Tucci Aff. ¶ 15-16)....