King v. Williams

• Decision Date: 08 June 1983
• Docket Number: No. 82-1151,82-1151
• Citation: 5 Ohio St.3d 137,449 N.E.2d 452,5 OBR 269
• Parties: , 5 O.B.R. 269 KING et al., Appellants, v. WILLIAMS et al., Appellees.
• Court: Ohio Supreme Court

Page 137

5 Ohio St.3d 137

449 N.E.2d 452, 5 O.B.R. 269

KING et al., Appellants, v. WILLIAMS et al., Appellees.

No. 82-1151.

Supreme Court of Ohio.

June 8, 1983.

Syllabus by the Court

1. The provision of emergency medical services by a municipal corporation, as an arm of a municipal fire department, is a governmental function within the meaning of R.C. 701.02.

2. A member of an emergency medical services team, 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. (Dougherty v. Torrence, 2 Ohio St.3d 69, 442 N.E.2d 1295, approved and followed.)

3. A municipal corporation and its individual employee, acting within the scope of R.C. 701.02, are immune from liability for negligence in the performance or nonperformance of their acts. (Haverlack v. Portage Homes, Inc., 2 Ohio St.3d 26, 442 N.E.2d 749, approved and followed.)

Plaintiff-appellant Wayne King, accompanied by his wife, was driving his automobile west on Russell Avenue, Akron, Ohio, on September 7, 1980. At the intersection of Russell Avenue and Manchester Road he proceeded through a green traffic light. While in the intersection, King was struck by an emergency medical ambulance owned by the city of Akron, defendant-appellee herein, and driven by Wilbert R. Williams, also a defendant-appellee. The ambulance was proceeding south on Manchester Road. Although there is an allegation that the emergency vehicle was proceeding without sounding its siren or flashing its emergency lights, it is uncontroverted that the ambulance was on an emergency run.

Williams, the driver of the emergency medical vehicle, was an employee of the city of Akron's fire department and was acting within the scope of his employment at the time of the accident. The city carries liability insurance which covers claims for damages caused by the operator of an emergency ambulance. This insurance inures to the benefit of the city, as well as the vehicle driver, for those claims for which they are found liable.

As a result of this accident, the Kings sued both Williams and the city of Akron for damages for the alleged negligent conduct of Williams. The defendants moved for summary judgment on the ground that a municipality is not liable for injuries occurring in matters relating to its governmental functions in the absence of a statutory provision to the contrary. The trial court granted this motion, and the court of appeals affirmed the judgment.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Edmund M. Sawan, Akron, for appellants.

Robert D. Pritt, Director of Law, Akron, for appellees.

Calfee, Halter & Griswold and John E. Gotherman, Cleveland, urging affirmance for amicus curiae, Ohio Mun. Attys. Assn.

Richard A. Castellini, City Sol. and William M. Gustavson, Cincinnati, urging affirmance for amicus curiae, city of Cincinnati.

Gregory S. Lashutka, City Atty. and Patrick M. McGrath, Asst. City Atty., urging affirmance for amicus curiae, city of Columbus.

WILLIAM B. BROWN, Justice.

The issue presented in this case is whether the driver of an emergency medical services vehicle operated by the city of Akron, and the city itself, qualify for immunity from liability under R.C. 701.02. Because this court finds that the defendants-appellees' actions fall within the protection of the aforementioned statute the granting of summary judgment in their favor was appropriate.

Initially, it should be noted that the court of appeals affirmed the grant of the motion for summary judgment on the basis that the city was protected by the doctrine of sovereign immunity. See Wooster v. Arbenz (1927), 116 Ohio St. 281, 156 N.E. 210. Recently, this court had occasion to reconsider that doctrine in Haverlack v. Portage Homes, Inc. (1982), 2 Ohio St.3d 26, 442 N.E.2d 749. There it was determined that the defense of sovereign immunity frequently "serves no purpose and produces such harsh results" and the doctrine was largely abolished. Further, "[a] municipal corporation, unless immune by statute, is liable for its negligence in the performance or nonperformance of its acts." Haverlack v. Portage Homes, Inc., supra, at 30, 442 N.E.2d 749 R.C. 701.02 provides immunity for a municipal corporation. The statute begins by setting out conditions under which a municipal corporation shall be liable. However:

"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." (Emphasis added.)

This statute provides a municipal corporation with a complete defense to a charge of negligence. In order to come within the statute, three conditions must be met. First, the individual must be an officer, agent or servant of the municipal corporation. Secondly, the individual must be engaged in performing a governmental function. Lastly, for purposes of this case, a fireman must be answering an emergency alarm.

There is no question in regard to the first and third conditions. Appellee Williams was clearly employed by the city of Akron as a member of the fire department. In addition, the evidence is uncontradicted that the ambulance was on an emergency run at the time of the accident. Thus, the only remaining question is whether Williams was engaged in performing a governmental function.

Although Haverlack v. Portage Homes, Inc., supra, attempted to avoid the "bramble bush" of the governmental/proprietary distinction for purposes of sovereign immunity by eliminating the defense, the language of R.C. 701.02 seemingly requires that the distinction be raised anew. Indeed the heart of appellants' argument is that the provision of emergency medical services by a municipality is a proprietary function. In support of this position appellants assert that provision of such services is not an act traditionally performed by a municipality or an act performed for the common good and that a private corporation could provide the service.

While there is some merit to appellants' contentions, provisions of the Revised Code indicate that the General Assembly has determined that provision of emergency medical services, rendered by a fire department, is to be classified as a governmental function. First, R.C. 737.21 provides for the establishment and organization of rescue units by municipal corporations under the heading of "fire department." Furthermore, R.C. 9.60(A)(4) defines "fire protection" to include the provision of ambulance,...