Riffle v. Physicians & Surgeons Ambulance Serv., Inc.

• Decision Date: 21 March 2013
• Docket Number: No. 2012–0205.,2012–0205.
• Parties: RIFFLE et al., Appellees, v. PHYSICIANS AND SURGEONS AMBULANCE SERVICE, INC., d.b.a. American Medical Response, et al.; The City of Akron, Appellant.
• Court: Ohio Supreme Court

135 Ohio St.3d 357

986 N.E.2d 983

RIFFLE et al., Appellees,

v.PHYSICIANS AND SURGEONS AMBULANCE SERVICE, INC., d.b.a. American Medical Response, et al.; The City of Akron, Appellant.

No. 2012–0205.

Supreme Court of Ohio.

Submitted Jan. 9, 2013.

Decided March 21, 2013.

Kohnen & Patton, L.L.P., Ann Ruley Combs, and Rebecca Cull, Cincinnati, for appellees.

Cheri B. Cunningham, Akron Director of Law, and John Christopher Reece and Michael J. Defibaugh, Assistant Directors of Law, for appellant.

Steven M. Goldberg Co., L.P.A., and J. Michael Goldberg, Cleveland, urging affirmance for amicus curiae Ohio Association for Justice.

Ice Miller, L.L.P., and Stephen L. Byron, Cleveland, Stephen J. Smith, and Chris W. Michael, Columbus; and John Gotherman, Columbus, urging reversal for amicus curiae Ohio Municipal League.

O'DONNELL, J.

[Ohio St.3d 357]{¶ 1} The city of Akron appeals from a judgment of the Ninth District Court of Appeals that affirmed the denial of its motion for judgment on the pleadings in connection with Andrea and Dan Riffle's wrongful-death and medical claims alleging that the city and its medical-emergency personnel negligently, recklessly, and wantonly caused the death of their infant daughter. At issue in this case is whether a political subdivision is immune from liability for the willful or wanton misconduct of its first responders when providing emergency medical services. The parties here ask us to determine whether R.C. 4765.49(B) is an additional [Ohio St.3d 358]immunity defense or is an express imposition of liability for purposes of R.C. 2744.02(B)(5).

{¶ 2} R.C. 2744.02(A)(1) states that except as provided in division (B), a political subdivision is not liable in damages for injury allegedly caused by an act of an employee of the political subdivision in connection with a governmental or proprietary function. Providing emergency medical services is a governmental function. SeeR.C. 2744.01(C)(2)(a). Division (B)(5) establishes an exception to immunity when civil liability is expressly imposed upon a political subdivision by the Revised Code, and relevant to this case, R.C. 4765.49(B) provides that a political subdivision is liable for injury arising out of any actions taken by a first responder, EMT-basic, EMT–I, or paramedic when emergency medical services are provided in a manner that constitutes willful or wanton misconduct.

{¶ 3} The complaint filed in this case alleges that the city of Akron and its employees provided emergency medical services negligently, recklessly, and wantonly; wanton misconduct, pursuant to R.C. 4765.49(B), is an exception to political-subdivision immunity, and the complaint therefore states a claim upon which relief may be granted. For this reason, the judgment of the court of appeals is affirmed.

Facts and Procedural History

{¶ 4} In the early morning hours of December 26, 2008, the city of Akron Fire Department EMS received an emergency call advising that Andrea Riffle, then in her third trimester of pregnancy, had begun experiencing serious vaginal bleeding. Company Officer Todd Kelly, Paramedic Stacie Frabotta, and Medics Peter Mattucci and Thomas Whatley all responded to the call. They took Riffle's vital signs but did not assess the unborn child or transport Riffle to the hospital; instead, they contacted a private ambulance service, Physicians and Surgeons Ambulance Service, Inc., doing business as American Medical Response, which arrived a few minutes later and transported Riffle to the labor and delivery unit at Akron City Hospital.

{¶ 5} Doctors there diagnosed the unborn child with fetal bradycardia—a fetal heart rate of less than 100 beats per minute, Stedman's Medical Dictionary 230 (26th Ed.1995)—and as a result, performed an emergency cesarean section. After the child's birth, doctors determined that a placental abruption precipitated the fetal bradycardia. The baby survived for only three days.

{¶ 6} The Riffles sued the city of Akron and several of its medical-emergency personnel and Physicians and Surgeons Ambulance Service, alleging that each had negligently, recklessly, and wantonly caused the death of their daughter. The city moved for judgment on the pleadings, claiming immunity. The trial court denied the city's motion, concluding that R.C. 4765.49(B) provides for an [Ohio St.3d 359]exception to political-subdivision immunity when emergency medical services are provided in a manner constituting willful or wanton misconduct.

{¶ 7} The city appealed. The Ninth District Court of Appeals rejected the trial court's analysis construing R.C. 4765.49(B) as an exception to political-subdivision immunity as expressed in R.C. 2744.02. Riffle v. Physicians & Surgeons Ambulance Serv., 2011-Ohio-6595, 969 N.E.2d 297, ¶ 7–8. Rather, the appellate court determined that because both R.C. 2744.02(A)(1) and R.C. 4765.49(B) afford immunity to a political subdivision for providing emergency medical services but only R.C. 4765.49(B) contains an exception, the two statutes conflict. Id. at ¶ 11. It therefore held that “R.C. 4765.49(B) more specifically addresses governmental entities that provide emergency medical services than does R.C. 2744.02, and, therefore, it, rather than the more general provisions of R.C. 2744.02, applies to the alleged facts of this case.” Id. at ¶ 2. Thus, the court concluded that the city is not immune from liability for any willful or wanton misconduct of its medical-emergency personnel, and it affirmed the trial court on that basis.

Arguments on Appeal

{¶ 8} The city of Akron now appeals to this court and presents one proposition of law: R.C. 4765.49 does not conflict with R.C. 2744.02 under an R.C. 1.51 analysis, but serves as an additional immunity defense under R.C. 2744.03(A)(7).

{¶ 9} Even though the parties agree that providing emergency medical services is a governmental function for which the city is immune, the city asserts that none of the exceptions to immunity set forth in R.C. 2744.02(B) imposes liability in this case for performing that governmental function. It claims that R.C. 4765.49(B) does not create an exception to immunity but instead provides an additional defense to liability that becomes relevant only if one of the exceptions to liability set forth in R.C. 2744.02(B) applies. It further maintains that no conflict exists between R.C. 2744.02 and R.C. 4765.49(B), because they can be read in harmony.

{¶ 10} The Riffles contend that R.C. 4765.49(B) expressly imposes liability on political subdivisions for injuries caused by the willful or wanton misconduct of first responders and note that the city's argumentrenders R.C. 4765.49(B) meaningless with regard to political-subdivision liability, because if the city is correct, a political subdivision will never be liable for injuries caused by those who provide emergency medical services, regardless of the degree of fault. But, they argue, if the court determines that R.C. 4765.49(B) does not provide an express exception to immunity, then the court should hold that it irreconcilably conflicts with R.C. 2744.02 and that R.C. 4765.49(B) controls because it is the more specific immunity statute.

[Ohio St.3d 360]{¶ 11} Because R.C. 4765.49(B) expressly imposes liability on a political subdivision when emergency medical services are provided in a manner that constitutes willful or wanton misconduct, the exception to immunity contained in R.C. 2744.02(B)(5) applies, and therefore a political subdivision is not immune from liability under the circumstances alleged in the complaint.

Law and Analysis

Immunity for Providing Emergency Medical Services

{¶ 12} At common law, political subdivisions enjoyed immunity for the performance of governmental functions, which included providing emergency services. See Frederick v. Columbus, 58 Ohio St. 538, 51 N.E. 35 (1898), syllabus; Hall v. Youngstown, 15 Ohio St.2d 160, 164, 239 N.E.2d 57 (1968); King v. Williams, 5 Ohio St.3d 137, 140, 449 N.E.2d 452 (1983) ( “emergency medical services fit within the classic definition of governmental functions”). We recognized, however, that the General Assembly had the authority to abrogate common law immunity of political subdivisions. See Frederick at the syllabus (“A municipal corporation is not, in the absence of any statutory provision, liable in damages to one injured by the negligent acts of its fire department or any of its members” [emphasis added] ); see also Broughton v. Cleveland, 167 Ohio St. 29, 30, 146 N.E.2d 301 (1957) ( “Ohio has consistently followed and applied the rule that, except as otherwise provided by statute, municipal corporations are exempt from liability for negligence in the performance or nonperformance of their governmental functions” [emphasis added] ).

{¶ 13} In 1976, the General Assembly enacted Am.Sub.H.B. No. 832 to, among other things, “specify liability for emergency medical service,” 136 Ohio Laws, Part II, 3042, and in R.C. 4731.90(B), which was in that act and is a predecessor of R.C. 4765.49, it imposed liability on political subdivisions for emergency medical services provided in a manner constituting willful or wanton misconduct:

No political subdivision * * * nor any officer or employee of a public agency * * * that provides emergency medical services * * * shall be liable in civil damages for damages arising out of any actions taken by an EMT–A or paramedic working under the officer's or employee's jurisdiction * * * unless the care, treatment, or assistance is provided in a manner constituting willful or wanton misconduct.

136 Ohio Laws, Part II, 3052–3053.

{¶ 14} In 1982, this court abolished the common law immunity of political subdivisions in [Ohio St.3d 361]Haverlack v. Portage Homes, Inc., 2 Ohio St.3d 26, 30, 442 N.E.2d 749 (1982), holding that the defense of sovereign immunity is not available in the absence of a statute providing immunity.

R.C. Chapter 2744

{¶ 15} In R.C. 2744.02(A)(1), the legislature, in 1985, reinstated...