Gowens v. Barstow

• Decision Date: 15 December 2015
• Docket Number: No. 112,309.,112,309.
• Parties: Elizabeth GOWENS, individually, Plaintiff/Appellee, v. Ethan BARSTOW, individually, Defendant, Norman Regional Hospital Authority, a public trust d/b/a Norman Regional Hospital and Emsstat, Defendants/Appellants.
• Court: Oklahoma Supreme Court

364 P.3d 644

Elizabeth GOWENS, individually, Plaintiff/Appellee,
v.
Ethan BARSTOW, individually, Defendant,

Norman Regional Hospital Authority, a public trust d/b/a Norman Regional Hospital and Emsstat, Defendants/Appellants.

No. 112,309.

Supreme Court of Oklahoma.

Dec. 15, 2015.

Chris Hammons and Jason Hicks, Laird Hammons Laird, PLLC, Oklahoma City, Oklahoma, for Plaintiff/Appellee.

Beverly S. Pearson and Brion Brady Hitt, Fenton, Fenton, Smith, Reneau & Moon, Oklahoma City, Oklahoma, for Defendants/Appellants.

FACTS AND PROCEDURAL HISTORY

COMBS, V.C.J.

¶ 1 On July 3, 2007, a paramedic supervisor, Defendant Ethan Barstow (Mr. Barstow), collided with a vehicle driven by the Plaintiff/Appellee, Elizabeth Gowens (Ms. Gowens) resulting in property damage to both vehicles and physical injury to Ms. Gowens. At the time of the collision, Mr. Barstow was a paramedic supervisor for the Defendant/Appellant EMSSTAT which is a division of the Defendant/Appellant Norman Regional Hospital Authority, a public trust d/b/a Norman Regional Hospital. Norman Regional Hospital is a political subdivision for purposes of the GTCA. For purposes of this opinion, Norman Regional Hospital and EMSSTAT will be collectively referred to as "NRH". Ms. Gowens initially sued Mr. Barstow and the City of Norman ex rel. EMSSTAT for her injuries. Both Mr. Barstow and the City of Norman were later dismissed from the lawsuit.

¶ 2 Central to this case is the intersection where the accident occurred. The intersection has been described as being "almost a five-way intersection."¹ It consists of east/west Alameda Street/Alameda Drive and north/south 72nd Ave. SE, Norman, OK. At the intersection, Alameda Street does two things: 1) it continues eastward past the intersection and becomes Alameda Drive, turning northward, and 2) at the intersection it also drops south a short distance along 72nd Ave. SE and turns eastward continuing as Alameda Street just south of Alameda Drive. Alameda Street south of Alameda Drive is at a lower elevation than Alameda Drive. Where this portion of Alameda Street meets 72nd Ave. SE, there is a stop sign. There is also an incline from this stop sign when heading north along 72nd Ave. SE up to the intersection. At the intersection there is no stop sign. In addition, on Alameda Street/Alameda Drive, west of the intersection, there is a hill. The speed limit in the vicinity of the intersection is 50 mph.

¶ 3 A non-jury trial was held on September 24–25, 2012. Mr. Barstow testified he was very familiar with the intersection. On the day of the accident, he was driving eastbound on Alameda Street, west of the intersection and was responding to an emergency call. He claims he engaged his lights and siren upon receiving the emergency call. Mr. Barstow stated he knew his lights and siren were on because people had yielded to his vehicle; including a white car just east of the intersection. Mr. Barstow stated he had been traveling 70 mph but that when he approached the hill west of the intersection he took his foot of the gas pedal in order to slow down while cresting the hill. He claimed he was traveling 60 mph before the impact. Officer Scott Fennell, who was later at the scene of the accident, testified Mr. Barstow only told him he was traveling 70 mph and did not mention decelerating before the intersection. Officer Fennell also testified that in his opinion the damages to the vehicles were consistent with someone driving 70 mph.

¶ 4 Ms. Gowens was traveling westbound on Alameda Street below Alameda Drive and east of the intersection. She had her brother in her car and had just picked up her cousin. She was sixteen years of age and had recently

364 P.3d 648

received a restricted Class D driver's license. Ms. Gowens testified she stopped at the stop sign at Alameda Street and 72nd Ave. SE, looked both ways, and did not see Mr. Barstow. Her position at the stop sign would be below the elevation of Alameda Street/Alameda Drive and would be facing westward toward the direction Mr. Barstow was traveling. She then drove north the short distance along 72nd Ave. SE to the intersection. She claims that even though there was no stop sign at the intersection she stopped anyway because she knew the intersection was dangerous. She stated she looked both ways, did not see Mr. Barstow, and then entered the intersection heading westbound on Alameda Street. She also claims she was in her westbound lane when the impact occurred. She never saw Mr. Barstow's vehicle nor heard his siren. Her two passengers also testified they never saw Mr. Barstow or heard his siren.

¶ 5 Mr. Barstow was traveling eastbound along Alameda Street/Alameda Drive. After he reached the top of the hill, just west of the intersection, he noticed a white car pulling over to the side of the road presumably to yield to his emergency vehicle. He testified that when he looked up from watching the white car, Ms. Gowens' vehicle was "right there entering the intersection." He stated he was unsure why he never saw her until she was in the intersection; he had no idea where she had come from. Mr. Barstow testified that he steered into her lane in order to hit the "front left corner" of her vehicle rather than the "driver's side door." He believed the accident was unavoidable and that there was no time to turn right and avoid hitting her vehicle. He also testified that at the time of impact she had never made it all the way across his lane of travel.

¶ 6 In addition, Mr. Barstow testified from his position driving westward the road created an "optical illusion" especially when driving at night. He said Alameda Street appears to continue straight and not curve into Alameda Drive. When asked to review an exhibit of the intersection and surrounding area, he testified that the intersection created a sight problem where someone in his position would have difficulty seeing a vehicle stopped at the stop sign on Alameda Street and 72nd Ave. SE and vice versa. However, he did not think the intersection was dangerous. He had never responded to nor heard of an accident at the intersection.

¶ 7 At the close of the evidence, NRH moved for a directed verdict which the trial court overruled. The parties were instructed by the court to provide written closing arguments and findings of fact and conclusions of law. The trial court's Order was filed on March 8, 2013. In its Order, the trial court found as follows: 1) Mr. Barstow was an employee of NRH and was acting in that capacity when driving through the intersection, 2) Mr. Barstow was responding to a call for service and more likely than not had his lights and siren on while driving, 3) the fact that he most likely used his lights and sirens does not provide blanket protection under 47 O.S., 11–106² , 4) the unusual layout of the intersection required a heightened use of care by all, 5) in this situation Mr. Barstow's high rate of speed did endanger the life and property of Ms. Gowens, and 6) Mr. Barstow was a cause of the accident.

¶ 8 In addition, the trial court stated it relied on 47 O.S., 11–801³ , and found that

364 P.3d 649

under the circumstances, Mr. Barstow's use of speed through that intersection, given Ms. Gowens was approaching or in the intersection, was both "negligent and reckless." The trial court awarded Ms. Gowens total damages in the amount of $263,682.00, inclusive of $131,841.84 in medical expenses. The trial court found Ms. Gowens should have also used a heightened level of care in approaching and moving through the intersection and determined she was twenty percent (20%) at fault for the accident. The trial court further determined the "Defendant has not proven that it is of a lesser degree of fault that [sic] Ms. Gowens." In this Order the trial court did not find the GTCA to be applicable.

¶ 9 On March 22, 2013, NRH filed a Combined Motion for Judgment Notwithstanding the Verdict and Motion for New Trial. On October 7, 2013, the trial court issued a Modified Journal Entry denying NRH's motions with the exception of finding the GTCA was applicable to NRH. The trial court additionally reduced the damages for Ms. Gowens' comparative negligence first and then reduced the judgment to the applicable GTCA cap of $125,000.00. NRH filed its Petition in Error on November 5, 2013, appealing the March 8, 2013, Order and the October 7, 2013, denial of its post-trial motions. The case was assigned to the Oklahoma Court of Civil Appeals and in an unpublished opinion filed April 8, 2015, the Oklahoma Court of Civil Appeals determined the dispositive issue was whether it was legally possible for NRH to be liable for the reckless acts of its emergency vehicle operator. The appellate court found under current case law and the GTCA, NRH was immune and therefore reversed both of the trial court's orders. On April 21, 2015, Ms. Gowens filed a Petition for Writ of Certiorari which this Court granted on September 21, 2015, and the matter was assigned to this office.

STANDARD OF REVIEW

¶ 10 There are several standards of review applicable to this matter. The trial court determined NRH, who is covered under the GTCA, was liable for the reckless acts of its employee. The question of NRH's immunity under the GTCA is one of law and is reviewable de...