Dougherty v. Torrence, 81-1910

• Decision Date: 22 December 1982
• Docket Number: No. 81-1910,81-1910
• Citation: 2 OBR 625,442 N.E.2d 1295,2 Ohio St.3d 69
• Parties: , 2 O.B.R. 625 DOUGHERTY, Appellee, v. TORRENCE, Appellant.
• Court: Ohio Supreme Court

Page 69

2 Ohio St.3d 69

442 N.E.2d 1295, 2 O.B.R. 625

DOUGHERTY, Appellee, v. TORRENCE, Appellant.

No. 81-1910.

Supreme Court of Ohio.

Dec. 22, 1982.

Syllabus by the Court

A volunteer fire fighter who is a member of the fire department of a municipal corporation is a "fireman" within the meaning of R.C. 701.02 and shall not be held personally liable for damages for injury or loss to persons or property while engaged in the operation of a motor vehicle in the performance of a governmental function.

This dispute arose out of a collision between an automobile driven by plaintiff-appellee, Dennis L. Dougherty, and a truck driven by defendant-appellant, Larry R. Torrence, a volunteer fire fighter for the village of Newtown, Ohio.

On the evening of the accident, Torrence was in his home when he received an emergency call that a house was on fire in the village. He was on his way to the fire station in his pick-up truck with red lights and siren in operation when Dougherty drove his car into the truck's path. The two vehicles collided, and both parties were injured.

Appellee Dougherty claimed appellant's negligence caused the accident and demanded $350,000 in damages. Appellant defended by alleging first, that appellee's damages resulted from appellee's own negligence and second, that as a volunteer fire fighter acting in the line of duty, he is immune from suit pursuant to R.C. 701.02.

The trial court granted appellant's motion for summary judgment on the basis of R.C. 701.02. On appeal, appellee argued appellant could not qualify for the immunity granted fire fighters pursuant to R.C. 701.02 because (1) he was a volunteer fire fighter, and (2) he was driving his personal vehicle to the fire house.

The court of appeals reversed and remanded, holding a volunteer fireman is not entitled to the protections afforded firemen of municipal corporations under R.C. 701.02. Whether appellant was also precluded from immunity because he was driving his own truck was an issue not addressed by the court of appeals.

The court of appeals finding its decision to be in conflict with the judgment of the Court of Appeals for Jackson County in Hale v. Channel (May 6, 1981), No. 396, unreported, certified the record of the case to this court for review and final determination.

Wendall Sullivan and John P. Scahill, Cincinnati, for appellee.

Gustin & Lawrence Co., L.P.A., James W. Gustin, Christopher J. Mehling and Kevin Jones, Cincinnati, for appellant.

KRUPANSKY, Judge.

The issue presented for review by the court of appeals is whether a volunteer fire fighter qualifies for immunity under R.C. 701.02.

R.C. 701.02 provides in relevant part:

"The defense that the officer, agent, or servant of the municipal corporation was engaged in performing a governmental function, shall be a full defense as to the negligence of:

" * * *

"(B) Members of the fire department while engaged in duty at a fire, or while proceeding toward a place where a fire is in progress or is believed to be in progress, or in answering any other emergency alarm.

"Firemen shall not be personally liable for damages for injury or loss to persons or property and for death caused while engaged in the operation of a motor vehicle in the performance of a governmental function."

This statute uses only the general terms, "firemen" and "members of the fire department." It does not differentiate in any way between volunteer fire fighters and other types of fire fighters, and it does not specifically exclude any particular type of fire fighter. The language of the statute, therefore, indicates that volunteers were intended to benefit from the protection granted by the statute.

When the wording of a statute is clear and unambiguous on its face, judicial interpretation is not required; rather, the court must give effect to the words used. "In ascertaining the legislative intent of a statute, 'It is the duty of this court to give effect to the words used [in a statute], not to delete words used or to insert words not used.' " (Citations omitted.) Bernardini v. Bd. of Edn. (1979), 58 Ohio St.2d 1, 4, 387 N.E.2d 1222 .

By holding volunteer fire fighters are outside the scope of R.C. 701.02, the court of appeals went beyond the plain language of the statute and injected a meaning which is not apparent from the words used in the statute. In so doing, the court of appeals reasoned as follows: Since numerous other sections of the Revised Code distinguish between volunteer and other fire fighters for various other purposes, "a clear delineation between firemen and volunteer firemen exists"; the absence of the term "volunteer firemen" from the language of R.C. 701.02 evidences "a legislative intent not to include volunteer firemen within the grant of immunity provided by the statute." We cannot subscribe to this line of reasoning.

Although some sections of the Revised Code classify fire fighters as volunteer or paid, part-time or full-time and temporary or permanent, ¹ other sections of the code, including R.C. 701.02, merely use the generic terms "firemen" and "members of the fire department." ² Apparently, the General Assembly uses the particular classifications when it seeks to differentiate among the various categories of fire fighters and the general terms when differentiation is not desired. The word "firemen" would, therefore, include volunteer as well as paid fire fighters, unless otherwise specified.

Appelle...