Pakeer v. City of Cleveland

• Citation: 2023 Ohio 4213
• Docket Number: 112489
• Decision Date: 22 November 2023
• Parties: KIRANMAI PAKEER, Plaintiff-Appellant, v. CITY OF CLEVELAND, ET AL., Defendants-Appellees.
• Court: Ohio Court of Appeals

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2023-Ohio-4213

KIRANMAI PAKEER, Plaintiff-Appellant,
v.
CITY OF CLEVELAND, ET AL., Defendants-Appellees.

No. 112489

Court of Appeals of Ohio, Eighth District, Cuyahoga

November 22, 2023

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-22-959201

JUDGMENT: REVERSED AND REMANDED

Goldstein & Goldstein, L.L.C., Michael D. Goldstein, and Kyle L. Crane, for appellant.

Mark D. Griffin, City of Cleveland Director of Law, William Menzalora, Chief Assistant Director of Law, and Affan Ali, and Michael J. Pike, Assistant Directors of Law, for appellees.

JOURNAL ENTRY AND OPINION

SEAN C. GALLAGHER, J.

{¶ 1} Kiranmai Pakeer appeals the trial court's decision granting summary judgment in favor of the city of Cleveland and Angel Sampson-Hall (collectively "the

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City") upon their assertion of political subdivision immunity under R.C. Chapter 2744 for a motor vehicle accident. For the following reasons, we reverse the decision of the trial court and remand for further proceedings.

{¶ 2} Pakeer was lawfully within the crosswalk at the intersection of East 21st Street and Chester Avenue when her foot was run over by one of the City's emergency medical services ("EMS") vehicles, an ambulance, which was driven by Sampson-Hall. The vehicle's front left tire crushed Pakeer's right foot, causing several fractures leading to the amputation of her big toe. Pakeer stated that she waited on the curb until the pedestrian walk signal activated before entering the street. The City does not dispute that. After viewing the walk signal, Pakeer took one or two steps before she was struck by the ambulance. Pakeer had no warning of the ambulance approaching from behind her vantage point.

{¶ 3} Before reaching the intersection, Sampson-Hall and her partner were responding to a 911 dispatch. At that time, they had no knowledge of the patient's condition. Upon arriving to assess and treat the patient, they determined that no emergency medical care or treatment services were required. They offered to transport that person to the hospital as a non-emergency transport. It is undisputed that the EMS vehicle's lights and sirens were not activated during that transport, and the crew believed themselves to be completing what they deemed to be a non-emergency transport. According to the police report that the City attempted to belatedly attach to its reply brief in support of the motion for summary judgment, the paramedic treating the patient told officers who responded to the accident with

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Pakeer, that he was treating the patient for a "minor medical condition." After Sampson-Hall stopped to assist Pakeer, the individual being transported decided against continuing on with the EMS personnel, telling them: "I don't want to be transported by you guys. You all run people over."

{¶ 4} Sampson-Hall told police officers that she had been travelling westbound on Chester Avenue in completing the non-emergency transport. She intended to make a left-hand turn at the intersection. As she approached the intersection (with the intersection being defined by the parties as anything beyond the painted stop bar), the left-turn signal turned yellow from green. She believed the left-turn light would transition to red. Instead, the yellow left-turn arrow transitioned to a solid circular green light for the left-turning traffic. At her deposition, Sampson-Hall clarified her statement. She claimed that she was actually in the intersection and commencing her turn when the light transitioned to yellow, not just "approaching" it.

{¶ 5} The City is generally immune from liability based on the allegations advanced. That liability is removed if the plaintiffs can demonstrate the applicability of R.C. 2744.02(B)(1): "political subdivisions are liable for injury, death, or loss to person or property caused by the negligent operation of any motor vehicle by their employees when the employees are engaged within the scope of their employment and authority." Under that exception to the general grant of immunity, as is pertinent to the issues advanced in this appeal, a plaintiff must allege that the damages caused by the employee were a result of a negligent act of an employee.

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Garmback v. Cleveland, 8th Dist. Cuyahoga No. 110295, 2022-Ohio-1490, ¶ 26, citing Riveredge Dentistry Partnership v. Cleveland, 8th Dist. Cuyahoga No. 110275, 2021-Ohio-3817, ¶ 32, William v. Glouster, 2012-Ohio-1283, 864 N.E.2d 102, ¶ 17 (4th Dist.), and Gabel v. Miami E. School Bd., 169 Ohio App.3d 609, 2006- Ohio-5963, 864 N.E.2d 102, ¶ 39-40 (2d Dist.). The City does not dispute the applicability of R.C. 2744.02(B)(1) in general.

{¶ 6} Under division (B)(1), the City has additional defenses for emergency responders. It is a full defense to the liability established under division (B)(1), if the City can demonstrate that

[a] member of an emergency medical service owned or operated by a political subdivision was operating a motor vehicle while responding to or completing a call for emergency medical care or treatment, the member was holding a valid commercial driver's license issued pursuant to Chapter 4506. or a driver's license issued pursuant to Chapter 4507. of the Revised Code, the operation of the vehicle did not constitute willful or wanton misconduct, and the operation complies with the precautions of section 4511.03 of the Revised Code

R.C. 2744.02(B)(1)(c). An employee is individually immune from liability unless their "acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner." RC. 2744.03(A)(6). Thus, the alleged existence of wanton misconduct forms the basis for liability as against both the political subdivision and its employee under the separate exceptions to immunity.

{¶ 7} Application of R.C. 2744.02(B)(1)(c), and any implications as to R.C. 2744.03(A)(6), form the crux of the parties' current dispute. According to the City, there are no genuine issues of material fact as to whether the EMS personnel

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were completing a call for emergency medical services or whether Sampson-Hall's conduct constituted wanton misconduct. The trial court agreed with the City and concluded that there were no issues of material fact whether the defense to liability under R.C. 2744.02(B)(1)(c) applied, and as a result of that conclusion, the trial court granted judgment in favor of the defendants upon all claims.

{¶ 8} This court must conduct a de novo review of a trial court's decision overruling a motion for summary judgment in which a political subdivision or its employee seeks immunity. Hubbell v. Xenia, 115 Ohio St.3d 77, 2007-Ohio-4839, 873 N.E.2d 878, ¶ 21. "If, after that review, only questions of law remain, the court of appeals may resolve the appeal. If a genuine issue of material fact remains, the court of appeals can remand the case to the trial court for further development of the facts necessary to resolve the immunity issue." Id.

{¶ 9} At the summary judgment stages, a plaintiff seeking to demonstrate the existence of an exception to immunity need not prove negligence or definitively disprove the defenses to liability under R.C. 2744.02(B)(1)(c). Typically, a plaintiff need only demonstrate a genuine issue of material fact as to whether the political subdivision employee, acting in the course and scope of their employment, was negligent in operating any motor vehicle. The burden is on the political subdivision and its employee to demonstrate the absence of a genuine issue of material fact with respect to the claims for immunity. In the present situation, the political subdivision must establish the absence of material fact as to the additional defense to liability for emergency responders if applicable. Figueroa v. Greater Cleveland Regional Transit Auth.,

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8th Dist. Cuyahoga No. 110069, 2021-Ohio-2268, ¶ 20-21; Perlberg v. Cleveland, 8th Dist. Cuyahoga No. 91913, 2009-Ohio-1788, ¶ 12.

{¶ 10} In this case, the City does not dispute that it is potentially liable under R.C. 2744.02(B)(1) for the motor vehicle accident the employee caused by failing to yield to the pedestrian who had the right of way to cross the street. The sole issue raised by the City is that it can establish the absence of a material issue of fact as to the defense to that liability for emergency medical services providers under R.C. 2744.02(B)(1)(c).^[1] The City primarily relies on two claims: (1) that despite the undisputed fact that there was no emergency medical care or treatment being provided to the patient being transported on a non-emergency basis, Sampson-Hall was nonetheless "completing a call for emergency medical care or treatment"; and (2) that there was no evidence that Sampson-Hall's causing the collision with Pakeer constituted wanton misconduct because Pakeer walked in front of the turning ambulance. Pakeer agrees that these two elements of the (B)(1)(c) defense are the focus of this appeal, but argues the City is mistaken. We agree in part.

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{¶ 11} Before addressing the arguments, we note that the City incorrectly refers to the "emergency call" as forming the basis of the immunity under R.C. 744.02(B)(1)(c): according to the City, "[t]he plain language of R.C. 2744.02(B)(1)(c) states that an 'emergency call' includes 'completing' a call." Appellee Brief, p. 13. Contrary to that assertion, however, "emergency call" is a statutory term of art, defined as "a call to duty, including, but not limited to, communications from citizens, police dispatches, and personal observations by peace officers of inherently dangerous situations that demand an immediate response on the part of a peace officer." (Emphasis added.) R.C. 2744.01(A). "Emergency call" pertains to calls for emergency assistance from "peace officers." The City has not demonstrated that any provision of the Ohio Revised Code includes EMS personnel under the umbrella of "peace officers." See,...