Mashburn v. Dutcher

• Decision Date: 27 December 2012
• Docket Number: No. 12 CAE 010003.,12 CAE 010003.
• Parties: John B. MASHBURN, Plaintiff–Appellant v. Jeffrey D. DUTCHER, et al., Defendants–Appellees.
• Court: Ohio Court of Appeals

14 N.E.3d 383

John B. MASHBURN, Plaintiff–Appellant

v.Jeffrey D. DUTCHER, et al., Defendants–Appellees.

No. 12 CAE 010003.

Court of Appeals of Ohio, Fifth District, Delaware County.

Dec. 27, 2012.

James P. Connors, Columbus, OH, for Appellant.

Mark H. Gams, M. Jason Founds, W. Charles Curley, Columbus, OH, for Appellee.

Before: PATRICIA A. DELANEY, P.J., W. SCOTT GWIN, J., and JOHN W. WISE, J.

OPINION

DELANEY, J.

{¶ 1} Plaintiff-appellant John B. Mashburn appeals from the December 9, 2011 judgment entry of the Delaware County Court of Common Pleas granting the motion for summary judgment filed by defendant-appellees Jeffrey D. Dutcher (“Dutcher”) and the Elm Valley Joint Fire District (“Elm Valley”).

FACTS AND PROCEDURAL HISTORY

{¶ 2} Dutcher is a volunteer firefighter with Elm Valley. This case arose in the late afternoon of June 10, 2006, when Dutcher received two pages from Elm Valley while at his home. Dutcher immediately left his home in his personal vehicle, a Chevy Suburban, to respond to the fire station, traveling westbound on State Route 229.

{¶ 3} Meanwhile, decedent Gary Bruce (“Bruce”) also traveled westbound on State Route 229 driving a Dodge Dakota pickup truck and hauling a boat trailer with a canoe on top. Bruce stopped to turn left into a self-storage facility, “229 Storage.” Two vehicles behind Bruce slowed.

{¶ 4} Dutcher approached the three vehicles. Behind him, in a separate vehicle, was another firefighter, Keith Luce. Bruce turned left into the storage facility as Dutcher went left of center to pass the two vehicles immediately behind Bruce in a legal passing zone. Dutcher safely passed the first two vehicles, but struck Bruce's vehicle as Bruce turned left into the storage facility. The vehicles collided and went off the left side of the road. Dutcher's vehicle rolled over into a fence and Bruce's truck flipped onto its side. Bruce died two days later of injuries sustained in the collision.

{¶ 5} Appellant brought suit on behalf of decedent Bruce against appellees Dutcher and the Elm Valley Joint Fire District,¹ asserting three causes of action: (1) negligence/wrongful death; (2) negligence per se; and (3) survival action.

{¶ 6} Dutcher and Elm Valley filed a motion for summary judgment, arguing Dutcher was acting in the course and scope of his employment as an emergency responder, no evidence exists he acted recklessly or wantonly, and he is therefore entitled to sovereign immunity pursuant to R.C. 2744.03, and Elm Valley is thus entitled to assert sovereign immunity pursuant to R.C. 2744.02. Appellant responded, appellee replied, and both parties filed supplemental memoranda.

The Civ.R. 56 evidence

{¶ 7} Appellees offered the following evidence in support of their motion for summary judgment: Dutcher's affidavit, the deposition transcript of Keith Luce, the affidavit of Patti Lewis, which included the “Joint Resolution dated June 12, 2000 among the Village of Ashley and Peru, Westfield, and Oxford Townships to create a joint fire district;” the Constitution of Elm Valley Joint Fire District adopted August 14, 2000; and Dutcher's W–2 statements for the years 2005, 2006, and 2007. Appellees also offered report number 59–0884–59 of the Ohio State Highway Patrol, authenticated by affidavit of Ohio Department of Public Safety records technician Jeffrey L. Maute.

{¶ 8} Appellant offered the following evidence in opposition to appellees' motion for summary judgment: Dutcher's deposition transcript, Luce's deposition transcript, and the affidavit of James D. Stover. Appellant also included the following exhibits which were not sworn, certified, or authenticated pursuant to Civ.R. 56(E) but were considered by the trial court absent objection by appellees: the Elm Valley Joint Fire District Standard Operating Guidelines, Emergency Vehicle Driver Training Program Instructor's Guide, and Jeff Dutcher Application for Membership to Ashley Community Fire Co.

The evidence of Dutcher's affidavit, deposition testimony, and statement to OSHP

{¶ 9} Dutcher's affidavit indicates he is a volunteer firefighter for Elm Valley whose duties include responding to fires and to calls for emergency medical care and treatment. On June 10, 2006, he received two pages to respond to an emergency call involving an automobile accident. His Chevy Suburban was equipped with lights and sirens and he activated the lights and siren upon responding to this call.

{¶ 10} The roadway where the collision occurred is a two-lane road with one lane of traffic for each direction, a posted speed limit of 55 m.p.h., and both lanes are separated by a broken yellow line. The area of the collision is a legal passing zone. Dutcher was driving approximately 60 m.p.h.

{¶ 11} As he traveled west on State Route 229, three vehicles were ahead of him, with the third vehicle being Bruce's. Upon Dutcher's approach, the two vehicles behind Bruce's vehicle moved to the side of the road. Dutcher observed those vehicles slow down and pull to the side of the road, and he was in the midst of safely passing those vehicles when Bruce turned left to turn into the storage facility. Bruce entered Dutcher's path as he turned left, and Dutcher immediately applied his brakes and attempted to avoid the collision. Dutcher never saw Bruce's brake lights or turn signal activated.

The deposition testimony of Keith J. Luce

{¶ 12} Keith J. Luce (“Luce”) was also employed by Elm Valley. While at a graduation party, he received a page on June 10, 2006 to respond to an automobile accident “with multiple ejections.” As he left the party, he heard sirens and saw Dutcher's vehicle pass; he saw the lights of Dutcher's vehicle on and heard its siren. Luce followed Dutcher's vehicle and paced it traveling between 60 and 65 m.p.h. While driving on State Route 229, both Dutcher and Luce passed two vehicles which had slowed down and pulled to the right side of the roadway to permit Dutcher and Luce to pass. Luce observed three vehicles in front of Dutcher near the storage facility, observed the vehicles slow and pull to the side of the road, and observed Dutcher enter the left lane to pass the three vehicles. Luce did not see any brake lights or turn signals from Bruce's truck and trailer. He observed Bruce turn left in front of Dutcher, saw Dutcher's brake lights come on, and saw the impact of the two vehicles with Dutcher striking Bruce's vehicle directly on the driver's-side door.

Affidavit of James D. Stover, witness at “229 Storage”

{¶ 13} James D. Stover (“Stover”) is the owner of the 229 Storage facility. On June 10, 2006 he was waiting to meet with a customer on the west side of the facility when he heard the sound of a siren, followed almost immediately by the sound of a collision. State Route 229 is on the north side of the business. He ran to the front of the storage facility and drove to the area of the accident. Stover was unable to definitively state whether the siren he heard emanated from the first responder (Dutcher) or the second responder (Luce), and he did not see the vehicles prior to the collision, nor did he see the collision take place.

Relevant portions of Elm Valley's Standard Operating Guidelines and Department Policies for emergency responders

{¶ 14} Appellant's evidentiary material included the Elm Valley Fire District Department Policies (Rev. 08/2002) contained within the Elm Valley Joint Fire District Standard Operating Guidelines, which state in pertinent part:

11. Response in privately owned vehicles

When any member responds to the station or to the scene of an emergency in his/her private vehicle, each member must strictly adhere to all applicable motor vehicle laws. Privately owned vehicles are not provided with the same exemptions that are provided to emergency vehicles. No member of the organization will be permitted to violate any motor vehicle laws. While it is recognized that timeliness in response to an emergency is important, it is imperative that all drivers understand that their private vehicles are not emergency vehicles and therefore are not afforded any exemptions or special privileges under state law. * * * *.

Personal Vehicle—Lights and Sirens

* * * *.

A personal vehicle becomes a public safety vehicle when it is responding to an emergency call and has the following equipment installed and operating. The personal vehicle must be equipped with an * * * displaying at least one flashing light, rotating, or oscillating light visible under normal atmospheric conditions from a distance of five hundred feet to the front of the vehicle and the vehicle must be equipped with an audible siren. * * * *.

{¶ 15} The Standard Operating Guidelines also provide in pertinent part:

2. Warning devices and true emergencies

When responding to a “true emergency,” all audible and visual warning devices will be operated at all times regardless of time of day and/or traffic conditions. All emergency vehicle drivers must understand that warning devices are not always effective in making other vehicle operators aware of your presence. Warning devices only request the right-of-way, they do not insure the right-of-way.

The definition of a true emergency is a situation in which there is a high probability of death or serious injury to an individual or significant property loss, and actions by an emergency vehicle driver may reduce the seriousness of the situation. (Emphasis in original.)

3. Vehicle control and right-of-way

All drivers shall attempt to maintain control of the vehicle that they are operating in such a manner as to provide the maximum level of safety for both their passengers and the general public. Emergency vehicle drivers should be aware that the civilian operators may not react in the manner in which is expected or felt to be appropriate. An attempt should be made to have options available when passing or overtaking vehicles. If another vehicle operator fails to yield the right of way to an emergency vehicle, the emergency vehicle cannot force the right of way, nor can

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