Morrison v. Warrensville Hts. , 2022 Ohio 1489 ( 2022 )

[Cite as Morrison v. Warrensville Hts., 2022-Ohio-1489.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
BORIS MORRISON, :
Plaintiff-Appellee/Cross- :
Appellant, No. 110234
v. :
CITY OF WARRENSVILLE HEIGHTS, :
ET AL.,
Defendants-Appellants/ :
Cross-Appellees.
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: May 5, 2022
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-18-908804
Appearances:
Sonkin & Koberna, LLC, Mark R. Koberna, and Sean T.
Koran, for appellee/cross-appellant.
Mazanec, Raskin and Ryder Co., L.P.A., James A. Climer,
Frank H. Scialdone, John D. Pinzone, and Amily A.
Imbrogno, for appellant/cross-appellee.
EMANUELLA D. GROVES, J.:
Defendants-appellants employees of the city of Warrensville Heights
appeal the denial of their motion for summary judgment in this wrongful death and
survivorship action. Cross-appellant Boris Morrison (“Morrison”), administrator
for the estate of Betty L. Morrison, deceased, appeals the trial court’s decision to
grant summary judgment to cross-appellee city of Warrensville Heights (the “City”).
For the reasons that follow, we affirm the decision of the trial court.
Factual and Procedural History
On September 5, 2017, 71-year-0ld Betty L. Morrison (“Ms.
Morrison”) had a severe asthma attack. Ms. Morrison, a long-time resident of the
City, called 911 and requested assistance. By the time EMS arrived, Ms. Morrison
was unconscious and not breathing. Attempts to revive Ms. Morrison were
ultimately unsuccessful. She was eventually transported to South Pointe Hospital
where she was pronounced dead.
At her funeral, Amelia Gray (“Gray”), Ms. Morrison’s daughter,
learned from a neighbor that EMS initially went to the wrong address. The neighbor
reported that EMS spent several minutes at her home before eventually going to Ms.
Morrison’s. Gray, concerned about this information, obtained the EMS records of
her mother’s care. Gray discovered there were discrepancies between what she had
learned from the neighbor and what was in the EMS reports. Seeking answers, Gray
wrote to Fire Chief, Herbert Waugh (“Chief Waugh”), asking him to explain why the
official report did not show EMS had gone to the wrong address or account for the
time they spent at that address. Furthermore, she asked why the reports showed
that it took several minutes for EMS to be dispatched to her mother’s home.
In response to Gray’s letter, the City’s Mayor, Bradley Sellers (“Mayor
Sellers”), requested that the Cuyahoga County Sheriff’s Department review the
circumstances surrounding EMS’s response to Ms. Morrison’s 911 call. Mayor
Sellers also requested that the sheriff’s department “address any internal issues that
may be discovered” during the investigation.
Cuyahoga County Sheriff Department’s Investigation
Cuyahoga County Sheriff’s Department Deputy Courtney K. Sheehy
(“Sheehy”) who was tasked with the overview, finalized the investigation on May 17,
2018. Sheehy did an extensive review, obtaining the recorded 911 calls, dispatch
calls, and reports created as a result of the incident. Sheehy also interviewed the
employees involved in the incident, except Lynnesha Hamilton (“Hamilton”), the
dispatcher, who declined to give a statement.
Sheehy began by developing a timeline from the recorded calls. As a
preliminary matter, Sheehy noted that there were discrepancies between the times
labeled on the recorded calls and the times spoken by the dispatcher on the
recordings. Sheehy surmised from interviews that these discrepancies occurred
because the dispatcher was reading the time from a cell phone or a clock other than
the one on the computer.
Ms. Morrison’s 911 call came in at 9:37:47 a.m. on September 5, 2017.
The 911 system automatically time stamps incoming calls. Hamilton took the call.
Despite having difficulty breathing and speaking, Ms. Morrison relayed that she was
having an asthma attack and needed assistance. She also relayed that she was 71
years old and that her address was 19219 Lanbury. Hamilton repeated the address
and indicated she was sending a squad.
The investigation revealed that Hamilton’s call to the fire station to
dispatch an ambulance to Ms. Morrison’s home was not recorded. Sheehy
determined that this was likely caused by someone using a speakerphone during the
call. Sheehy learned that if a speakerphone was used, by either dispatch or the fire
station, the system would not record the call.
The next recorded call came at 9:40:43 a.m. through channel seven
(the Fire/EMS line). At that time, Squad 1, the ambulance carrying firefighters
David Rancourt Jr. (“Rancourt”) and Nicholas Kaminsky (“Kaminsky”), radioed
dispatch and stated, “responding 19419 Lanbury,” instead of “responding 19219
Lanbury.” In the same recording, Hamilton responded with “9:42.” Hamilton did
not correct the address. Sheehy attributed the difference in times to Hamilton
looking at a wall clock or cell phone, rather than the clock on the computer.
At 9:43:46, Squad 1 radioed dispatch indicating they were “on scene.”
They did not restate the address during this call. By using Google Maps, Sheehy
determined that 19419 Lanbury was approximately 1.3-1.6 miles and a three-to-five-
minute drive from the fire station. Sheehy calculated that with lights and sirens it
took Squad 1 approximately 3 minutes to get to 19419 Lanbury. Dispatch did not
acknowledge or respond to this call.
At 9:45:39 a.m., Squad 1 radioed dispatch and requested an address
check. At 9:45:59 a.m., Hamilton responded stating “19219, 19219.” Squad 1
responded at 9:46:10 a.m. with “Alright, copy that, 19219, thank you.”
At 9:47:08 a.m., Squad 1 advised dispatch that they were on scene at
19219 Lanbury. Again, using Google Maps, Sheehy determined that the two
addresses were about eight houses apart. Sheehy noted that in less than a minute,
Squad 1 loaded their equipment back on the ambulance and drove to Ms. Morrison’s
home. Dispatch responded to the call by stating, “Copy at 9:49.” Sheehy noted the
difference in the times, again suggesting that this was likely due to the dispatcher
reading the time from a cell phone, wall-mounted clock, or a clock other than the
one on the computer.
Determining that Ms. Morrison was in full cardiac arrest, and she
needed additional assistance, Squad 1 radioed the fire station at 9:48:24 a.m.
Engine 1, carrying Lt. Pete Patrick (“Lt. Patrick”) and Omar Jordan (“Jordan”),
arrived on scene at 9:53:10 a.m. Squad 1 advised Engine 1 to bring in the Lucas (a
machine that performs chest compressions). Squad 1 subsequently radioed dispatch
at 10:06:09 a.m. that they were en route to the hospital. At 10:08:41 a.m. they
radioed dispatch that they had arrived at the hospital.
Next, Sheehy reviewed the EMS Run Report (“run report”), a
document that catalogs the particulars of the call, including the times that certain
events occurred. The report was completed and electronically signed by Rancourt
on September 5, 2017, at 2:32 p.m. The run report indicated that the 911 call was
both received and dispatched at 9:40 a.m., rather than 9:37 a.m. Rancourt reported
that EMS was en route to the residence at 9:4o a.m. Further, he indicated that EMS
was at 19219 at 9:44 a.m., rather than 9:47 a.m. According to the report, Squad 1
left the residence at 10:08 a.m. and arrived at the hospital at 10:11 a.m. Sheehy noted
that there was only one indication on the report that there was an error with the
address. On page three of the report under a section titled “Dispatch Factors,”
Rancourt noted, “Location (Inability to obtain).”
To get a better understanding of how the department operates,
Sheehy interviewed the firefighters involved in Ms. Morrison’s call. The firefighters
reported that when dispatchers call, they typically call over the police line, which has
a special ring tone, which notifies them that it is an emergency. At the time of Ms.
Morrison’s incident, the City did not relay emergency call information via email or
text. When the calls would come through, whoever answered the phone would
either pick up the handset or use the speakerphone. There was also an intercom that
firefighters used to broadcast call information to the entire department; however,
the intercom often did not work.
Typically, firefighters would write the address and other pertinent
information on two pieces of scrap paper near the phone. Usually, if only one team
was assigned to the call, that team would take one piece of paper with them. The
other piece of paper would remain at the station, where a firefighter would input the
information on that sheet into an informal logbook the fire station kept to keep track
of calls. Whoever was monitoring the logbook was also supposed to listen to the
dispatch calls and input the information into the logbook as it happened.
To get an understanding of the duties of City dispatchers, Sheehy
reviewed the “City of Warrensville Heights Employee Job Description for
Dispatchers.” Dispatchers are employed by and work under the supervision of the
police department. According to that document, dispatchers’ primary duties
included “dispatching for police and fire, answering 911 calls, answering calls for
citizen complaints (nonemergency lines), and complaints of flooding, storm
damage, broken utility lines and notify the appropriate departments or resources for
investigation and repair.” Additional primary responsibilities included operating
the computer terminal for Law Enforcement Automated Data Systems (“LEADS”),
and other law enforcement-related computer systems, preparing warrants and
reports as necessary, maintaining a record of community activity, and preparing,
recording, and maintaining a computerized record of stolen property. Further,
dispatchers were responsible for assisting persons who walk into the station.
Secondary responsibilities included oversight of prisoners as needed, including
arrangements for food, care, and jail inspections.
Sheehy learned that in September 2017, the City scheduled one
dispatcher per shift. The firefighters interviewed reported multiple issues with
dispatch. In general, firefighters noted that dispatchers could easily become
overwhelmed due to the number of duties they were assigned. There were multiple
incidents where dispatchers failed to respond to their radio calls and times when
EMS and Fire went to the wrong address because either dispatch relayed the wrong
address or firefighters wrote down the wrong address.
When Sheehy asked firefighters about specific incidents, they
reported a number of concerns. Jordan described an incident where he was on a call
when gunshots were heard. Dispatch did not respond to his calls into the station
because they were in the jail handling required prisoner care. Jordan told Sheehy,
that in that incident, he feared for his life. Jordan indicated that dispatch failing to
respond to calls happened several times a month. Further, he noted that leadership,
including Waugh, was well aware of these issues. He also told Sheehy that
firefighters were forced to rely on understaffed and possibly undertrained people in
the dispatch department. Kaminsky noted EMS/Fire went to the wrong address two
to three times per month. He could recall more than 20 incidents of going to the
wrong address, more incidents than any he observed at the six other fire
departments where he had worked. Kaminsky indicated leadership was aware of
the address issue as well.
Sheehy asked Waugh to provide a copy of the fire department’s
policies and procedures. Waugh only sent EMS protocols. Furthermore, those
protocols consisted of a link to EMS protocols created and utilized by the Cleveland
Clinic for medical care. Sheehy never received any other policies regarding
dispatching of calls from the fire department, emergency response procedures, or
any other procedures. Sheehy also requested but did not receive any policies or
procedures for dispatchers.
Sheehy interviewed the four firefighters about the training they
received. Firefighters reported that almost all of the training was on-the-job
training. Lt. Patrick indicated that new firefighters are given a manual that includes
streets within the city. However, he noted there were not many written policies and
procedures, and most things were communicated by “word of mouth.” Kaminsky
described the new firefighter manual as an introduction to the station, not a
mandated policies and procedures manual. He also told Sheehy that there were no
written policies and procedure manual. Jordan agreed that there were no written
policies or procedures and that most training was by “word of mouth.” Rancourt
was aware of only one written policy that involved evacuation.
Firefighters also identified issues with equipment. Lt. Patrick noted
that calls from dispatch to the station can be heard throughout the station; however,
sometimes the speakers/intercom did not work. Sometimes, according to Lt.
Patrick, the fire/EMS line volume would be turned down so it could not be heard by
dispatch. Lt. Patrick described the equipment as “1960s technology” and noted that
the procedures for processing or dispatching calls had not changed in the 23 years
he had been with the department. Kaminsky described the equipment as “archaic.”
Jordan indicated that even in 1997 when he worked at the Twinsburg Fire
Department, Twinsburg had direct alerting technology like Active 911, a system that
relays the details of 911 calls electronically directly to the fire department.
Sheehy summarized “Systemic Failures at Warrensville Heights” as
follows:
Lack of training, equipment and policies and procedures. Lack of
properly functioning equipment from speakers inside Station 1 to no
computers or linked GPS units inside any Engine, ladder or Squad.
[Firefighters] have to hope that Speakers are working to hear the
address of a call they are being dispatched to. There is no system of
checks and balance [sic]. If an address is communicated incorrectly by
dispatch or writing [sic] down incorrectly by firefighters there is no
other written or electronic check on that address. There is a check
when [firefighters] radio to dispatch they are enroute to a call but if
dispatch does not hear this traffic and does not respond or doesn’t
make the correction to an incorrect address being stated then the same
error will be made.
Despite these issues, Sheehy determined that there was insufficient
evidence for criminal charges against the employees for their actions during this
incident.
The Morrison Family Civil Complaint
On December 24, 2018, Morrison, the administrator of the estate of
Ms. Morrison, filed a complaint against the City, Mayor Sellers, Chief Waugh,
Hamilton, Rancourt, and Kaminsky. The complaint alleged willful and wanton
misconduct against the City; willful; wanton; reckless misconduct; wrongful death,
and survivorship against Mayor Sellers, Chief Waugh, Hamilton, Rancourt, and
Kaminsky. On May 22, 2019, Morrison filed an amended complaint adding Police
Chief Wesley Haynes (“Chief Haynes”) to the action alleging willful, wanton, and
reckless misconduct, wrongful death and survivorship. Morrison eventually
dismissed Mayor Sellers from the complaint.
On December 13, 2019, the defendants filed a motion for summary
judgment. The City argued that it was entitled to political subdivision immunity
under RC 2744.02(A)(2) and that none of the exceptions to immunity under RC
2744.02(B) applied. With respect to Hamilton, Kaminsky, and Rancourt
(collectively, the “Emergency Service Employees”) and Chief Waugh and Chief
Haynes (the “Chiefs”), these defendants claimed that they were entitled to immunity
under R.C. 2744.03(A)(6). Additionally, the Chiefs claimed they were not liable
under theories of vicarious liability and respondeat superior. Also, the Chiefs
alleged they were entitled to common law public official immunity.
In response, Morrison filed an opposition to the motion for summary
judgment on January 10, 2020. He argued that the City was not entitled to
immunity under R.C. 2744.02 because exceptions under R.C. 2744.02(B)(5)
applied.
Morrison claimed that the Emergency Service Employees were not
entitled to summary judgment under R.C. 2744.03(A)(6) because there were
genuine issues of material fact regarding whether their conduct was wanton,
reckless, or done in bad faith.
With respect to the Chiefs, Morrison disagreed with their contention
that the claim was based on vicarious liability or respondeat superior. Morrison
argued that a genuine issue of material fact remained as to whether the Chiefs’
conduct violated R.C. 2744.03(A)(6)(b). Finally, Morrison argued that public
official immunity did not apply because it was abolished by statute.
On December 30, 2020, the trial court, in a well-reasoned order,
granted in part and denied in part the defendants’ motion for summary judgment.
The trial court granted the motion with respect to the City finding that no exception
under R.C. 2744.02(B) applied to remove the cloak of the City’s immunity.
However, the trial court found that there remained genuine issues of material fact
as to whether: 1) the actions of Hamilton, Kaminsky, and Rancourt amounted to
reckless misconduct and 2) the actions of the Chiefs amounted to wanton or reckless
misconduct. The trial court agreed with Morrison that public official immunity had
been abolished and did not apply to the Chiefs.
The trial court noted in its journal entry that there was no just cause
for delay.
The Emergency Service Employees and the Chiefs appealed and
assigned the following sole error for our review.
The lower court erred by denying summary judgment to Chief Waugh,
Chief Haynes, Nicholas Kaminsky, David Rancourt, and Lynnesha
Hamilton because they are immune under R.C. Chapter 2744.
Morrison cross-appealed and assigned the following sole error for our
review:
The Trial Court erred by granting summary judgment to the City of
Warrensville Heights on the basis of statutory immunity under R.C.
2744.
Jurisdiction
As an initial matter, we must address jurisdiction. Typically, an order
denying a motion for summary judgment is not a final, appealable order. Ceasor v.
E. Cleveland, 2018-Ohio-2741, 112 N.E.3d 496, ¶ 13 (8th Dist.), citing Hubbell v.
Xenia, 115 Ohio St.3d 77, 2007-Ohio-4839, 873 N.E.2d 878, ¶ 9, citing State ex rel.
Overmeyer v. Walinski, 8 Ohio St.2d 23, 24, 222 N.E.2d 312 (1966). However, R.C.
2744.02(C) provides:
An order that denies a political subdivision or an employee of a political
subdivision the benefit of an alleged immunity from liability as
provided in this chapter or any other provision of the law is a final
order.
As the trial court’s decision denying the employees’ request for
immunity was a final appealable order, our review is appropriate.
On the other hand, the cross-appeal requires a different analysis.
Courts have found that R.C. 2744.02(C) limits our review “to the review of alleged
errors in the portion of the trial court’s decision that denied the political subdivision
[or its employee] the benefit of immunity.” Johnson v. Greater Cleveland Regional
Transit Auth., 2021-Ohio-938, 171 N.E.3d 422, ¶ 51 (8th Dist.), quoting Reinhold v.
Univ. Hts., 8th Dist. Cuyahoga No. 100270, 2014-Ohio-1837, ¶ 21, citing Riscatti v.
Prime Properties Ltd. Partnership, 137 Ohio St.3d 123, 2013-Ohio-4530, 998
N.E.2d 437, ¶ 20.
Therefore, in order to review the cross-appeal challenging the trial
court’s decision granting the City political subdivision immunity, we must
determine whether it is a final appealable order. Cleveland v. Ohio, 8th Dist.
Cuyahoga No. 106688, 2019-Ohio-315, ¶ 12. An order of a court is a final appealable
order only if the requirements of both Civ.R. 54(B), if applicable, and R.C. 2505.02
are met. Id., quoting Philpott v. Ernst & Whinney, 8th Dist. Cuyahoga No. 61203,
1992 Ohio App. LEXIS 5930, 4 (Nov. 25, 1992), citing Chef Italiano Corp. v. Kent
State Univ., 44 Ohio St.3d 86, 541 N.E.2d 64 (1989), syllabus.
“An order is final if it ‘affects a substantial right in an action that in
effect determines the action and prevents a judgment.’” Jaffe v. Cleveland Clinic
Found., 8th Dist. Cuyahoga No. 110164, 2021-Ohio-3345, ¶ 10, quoting R.C.
2505.02(B)(1). An order that determines the action and prevents judgment “‘must
dispose of the whole merits of the cause or some separate and distinct branch thereof
and leave nothing for the determination of the court.’” Id., citing Madfan, Inc. v.
Makris, 8th Dist. Cuyahoga No. 102179, 2015-Ohio-1316, at ¶ 6, quoting Hamilton
Cty. Bd. Of Mental Retardation & Dev. Disabilities v. Professionals Guild of Ohio,
46 Ohio St.3d 147, 153, 545 N.E.2d 1260 (1989).
In the instant case, the order affects a substantial right, that being
potential recovery against the City. Wisintainer v. Elcen Power Strut Co., 67 Ohio
St.3d 352, 355, 617 N.E.2d 1136 (1993) (noting that an order affects a substantial
right where it affects a plaintiff’s ability to recover against an alleged tortfeasor). The
trial court order prevents Morrison from recovering on his claims against the City.
The fact that Morrison has claims against other defendants, i.e., the Emergency
Service Employees and the Chiefs, is irrelevant. Id. at 355. Based on the foregoing,
we find that the trial court’s order was a final order.
Here, the trial court’s journal entry stated, “No just cause for delay,”
as required for the application of Civ.R. 54(B). By designating a case this way, the
trial court makes a factual determination that “an interlocutory appeal is consistent
with the interests of sound judicial administration * * *.” Wisintaiter at 354.
The trial court is in the best position to determine whether an
immediate appeal will be efficient, preventing the necessity of trying the case twice.
Id. at 354-355. The trial court’s decision to make a Civ.R. 54(B) certification should
be affirmed “where the record indicates that the interests of sound judicial
administration could be served by a finding of ‘no just reason for delay.’” Id. at 355.
This is such a case. The trial court’s entry effectively removes the City as a defendant.
As such, it makes little sense to resolve the City employee’s appeal now and hold for
later a decision on whether the trial court was correct in granting summary
judgment to the City. Therefore, it is appropriate to address both issues.
Standard of Review
In their sole assignment of error, the Emergency Service Employees
and the Chiefs argue the trial court erred when it denied their motion for summary
judgment.
Preliminarily, our review of summary judgment is de novo. Johnson
v. Cleveland City School Dist., 8th Dist. Cuyahoga No. 94214, 2011-Ohio-2778, ¶ 33.
In a de novo review, “we afford no deference to the trial court’s decision and
independently review the record to determine whether [the denial of] summary
judgment is appropriate.” Id. at ¶ 53, citing Hollins v. Shaffer, 182 Ohio App.3d
282, 2009-Ohio-2136, 912 N.E.2d 637, ¶ 12 (8th Dist.).
Summary judgment is appropriate when “(1) no genuine issue as to
any material fact exists; (2) the party moving for summary judgment is entitled to
judgment as a matter of law; and (3) viewing the evidence most strongly in favor of
the nonmoving party, reasonable minds can only reach one conclusion which is
adverse to the nonmoving party.” Ceasor 2018-Ohio-2741 at ¶ 15, citing Hull v.
Sawchyn, 145 Ohio App.3d 193, 196, 762 N.E.2d 416 (8th Dist.2001).
“The burden of showing that no genuine issue of material fact exists
falls on the party who moves for summary judgment.” Sickles v. Jackson Cty. Hwy.
Dept., 196 Ohio App.3d 703, 2011-Ohio-6102, 965 N.E.2d 330, ¶ 12 (4th Dist.), citing
Dresher v. Burt, 75 Ohio St.3d 280, 294, 662 N.E.2d 264 (1996). To meet this
burden, the moving party must reference “the pleadings, depositions, answers to
interrogatories, written admissions, affidavits, transcripts of evidence, and written
stipulations of fact, if any, timely filed in the action,” that demonstrate the non-
moving party has no evidence to support their claims. Id., citing Civ.R. 56(C). Once
the moving party has met its burden, the nonmoving party must respond with
affidavits and/or set forth specific facts as provided in Civ.R. 56 showing there are
genuine issues for trial. Id., citing Civ.R. 56(E).
Statutory Immunity of Political Subdivision Employees
For ease of discussion, we will start with an overview of the
protections provided to political subdivision employees under Chapter 2744. Once
that review is complete, we will address how those protections apply to the
Emergency Service Employees and the Chiefs separately based on their differing
roles in this case.
Preliminarily, Ohio’s Political Subdivision Tort Liability Act, codified
in R.C. Chapter 2744, “sets forth a comprehensive statutory scheme for the tort
liability of political subdivisions and their employees.” McConnel v. Dudley, 158
Ohio St.3d 388, 2019-Ohio-4740, 144 N.E.3d 369, ¶ 20, citing Supportive Solutions,
L.L.C. v. Electronic Classroom of Tomorrow, 137 Ohio St.3d 23, 2013-Ohio-2410,
997 N.E.2d 490, ¶ 11. R.C. 2744.02 governs the immunity of a political subdivision,
while R.C. 2744.03(A)(6) governs the immunity of political subdivision employees.
Our analysis of a political subdivision employee’s immunity under
Chapter 2744 is different than our analysis of the immunity of the political
subdivision itself. Johnson v. Greater Cleveland Regional Transit Auth., 2021-
Ohio-938, 171 N.E.3d 422, ¶ 98 (8th Dist.). R.C. 2744.02 requires a three-tiered
analysis to determine whether a political subdivision is entitled to immunity. Id. at
¶ 60. Although we will address the three-tiered analysis in more detail in our
discussion of Morrison’s cross-appeal below, we briefly note that under tier one, a
political subdivision is entitled to immunity for its governmental and proprietary
functions, unless, under tier two, one of the exceptions in R.C. 2744.02(B) apply to
the facts of the case. Even if one of the exceptions applies, however, under tier three
the political subdivision may reclaim immunity if they can establish that a defense
to their action applies. Id. at ¶ 60-62.
In contrast, R.C. 2744.03(A)(6) provides that an employee of a
political subdivision is immune from liability “[i]n a civil action * * * to recover
damages for injury, death or loss to person or property allegedly caused by any act
or omission in connection with a governmental or proprietary function” unless one
of the following applies:
(a) The employee’s acts or omissions were manifestly outside the
scope of the employee's employment or official responsibilities;
(b) The employee’s acts or omissions were with malicious
purpose, in bad faith, or in a wanton or reckless manner; [or]
(c) Civil liability is expressly imposed upon the employee by a
section of the Revised Code.
Johnson at ¶ 99.
With the above principles in mind, we address the Emergency
Services Employees’ contention that the trial court erred when it denied their
motion for summary judgment.
Immunity – Emergency Service Employees: Hamilton, Kaminsky, and
Rancourt
Within the sole assignment of error, the Emergency Service
Employees argue that the trial court erred when it found that there was a genuine
issue of material fact as to whether the Emergency Service Employees’ actions rose
to the level of recklessness such that it removed the protection of R.C.
2744.03(A)(6).
As we have previously noted, the Emergency Service Employees are
immune from liability unless one of the exceptions listed in R.C. 2744.03(A)(6)(a),
(b), 0r (c) apply. In the instant case, the trial court found that the exception to
immunity contained in R.C. 2744.03(A)(6)(b) applied, depriving them of the
protection of immunity. In its ruling, the trial court specifically found that the
conduct of the Emergency Service Employees was not wanton, but that there
remained genuine issues of material fact as to whether their conduct was reckless.
We note that the issue 0f whether conduct is wanton or reckless is
usually reserved for the jury. Miller v. Hace, 8th Dist. Cuyahoga No. 102500, 2015-
Ohio-3591, ¶ 17, quoting Peer v. Sayers, 11th Dist. Trumbull No. 2011-T-0014, 2011-
Ohio-5439, ¶ 32, citing Fabrey v. McDonald Village Police Dept., 70 Ohio St.3d 351,
356, 639 N.E.2d 31 (1994).
However, the standard for showing wanton or reckless misconduct is
high. Id. “‘[M]ere negligence is not converted into wanton misconduct unless the
evidence establishes a disposition to perversity on the part of the tortfeaser.’”
Fabrey v. McDonald Village Police Dept., 70 Ohio St.3d 351, 356, 639 N.E.2d 31(1971), quoting Roszman v. Sammett (1971), 26 Ohio St.2d 94, 96-97, 269 N.E.2d
420, 422. (1971). Further, “‘[t]he actor’s conduct is in reckless disregard of the
safety of others if * * * such risk is substantially greater than that which is necessary
to make his conduct negligent.” Id., citing Thompson v. McNeill, 53 Ohio St.3d 102,
559 N.E.2d 705 (1990), quoting 2 Restatement of the Law 2d, Torts, Section 500, at
587 (1965).
In the instant case, the trial court found that the actions of Hamilton,
Kaminsky, and Rancourt failed to rise to the level of conduct constituting a wanton
disregard.
“Wanton misconduct” is defined as “the failure to exercise any care
toward those to whom a duty of care is owed in circumstances in which there is great
probability that harm will result.” Anderson v. Massillon, 134 Ohio St.3d 380, 2012-
Ohio-5711, 983 N.E.2d 266, ¶ 33, citing Hawkins v. Ivy, 50 Ohio St.2d 114, 117-118,
363 N.E.2d 367 (1977). (See also Black’s Law Dictionary 1613-1614 (8th Ed.2004)
(explaining that one acting in a wanton manner is aware of the risk of the conduct
but is not trying to avoid it and is indifferent to the results). Id. The record strongly
supports the trial court’s determination.
The record reveals that just prior to Ms. Morrison’s call, Kaminsky,
Rancourt, Jordan, and Patrick had been dispatched to a smoke alarm. This call was
at 9:01 a.m., 36 minutes before Ms. Morrison placed her call to 911. The record
reflects the firefighters returned to the fire station by approximately 9:34 a.m., three
minutes before Ms. Morrison’s call. According to Sheehy’s report, Kaminsky and
Rancourt would have been in full turn-out gear for the smoke alarm call and would
have had to change out of that gear to go to Ms. Morrison’s call. And yet, based on
the time-stamped recorded call, they were en route to Ms. Morrison’s home by 9:40
a.m. While there were issues with address verification during the course of this call,
given the totality of the surrounding circumstances, we cannot conclude Kaminsky
and Rancourt lacked care or were indifferent to the results of their actions. As such,
their behavior is devoid of wanton disregard.
We make the same finding with respect to Hamilton. City dispatchers
had multiple responsibilities, and it was well known that dispatchers were
overwhelmed. The record before us displays that there were occasions where
dispatchers were unavailable due to addressing other primary responsibilities.
However, there was no evidence in the record that dispatchers perversely
disregarded their responsibilities. Moreover, there is no evidence in this record that
Hamilton perversely disregarded her duties with respect to Ms. Morrison’s call.
Based on the foregoing, the actions of the employees did not rise to
the level of wanton misconduct removing the protection of immunity. Therefore,
the trial court was correct in finding there was no wanton misconduct.
Since immunity may be removed if the employees’ conduct is wanton
or reckless, we now address whether the trial court erred in finding that the
Emergency Service Employees’ conduct rose to the level of recklessness. “Reckless
conduct” is defined as the “conscious disregard of or indifference to a known or
obvious risk of harm to another that is unreasonable under the circumstances and
is substantially greater than negligent conduct.” Anderson v. Massillon, 2012-Ohio-
5711 at ¶ 34, citing Thompson v. McNeill, 53 Ohio St.3d 102, 104-105, 559 N.E.2d
705 (1990), adopting 2 Restatement of the Law 2d, Torts, Section 500, at 587 (1965).
We conclude the trial court correctly found that there remained a
genuine issue of material fact as to whether the Emergency Service Employees’
conduct was reckless. It was well known in the City that the emergency services
department had antiquated equipment, and as such, the importance of relaying and
notating accurate information was obvious. Errors due to failure to verify addresses
were a known issue. It was also well known that dispatchers, due to other duties,
would not always be available on the radio. Firefighters were aware that they could
not count on dispatch to be available during the course of a call, to verify addresses,
or to hear other pertinent information. And further still, firefighters were aware of
simple address verification techniques used by other departments that were not
utilized by the City. For instance, Kaminsky testified about haloing, the simple act
of repeating the address to verify it was heard correctly. Kaminsky testified that the
City did not use the haloing technique. Furthermore, none of the Emergency Service
Employees utilized haloing during the course of this incident.
Finally, Morrison has pointed to the official reports in this matter and
argues that the Emergency Service Employees deliberately falsified the times in
those documents to hide the fact that Ms. Morrison’s treatment was delayed by a
mistaken address. The Emergency Service Employees argue that reports created
after the fact are irrelevant to the determination of whether their conduct was
reckless. We disagree. In this case, there are two relevant reports, the run report,
created by Rancourt and a dispatch call log created by Hamilton. Both the run
report and the dispatch report show that Ms. Morrison’s 911 call was received at 9:40
a.m. However, the 911 call was actually received at 9:37 a.m. This change makes it
appear that EMS was dispatched as soon as the call was received. They both also
show that EMS arrived at Ms. Morrison’s home at 9:44 a.m. making it appear that
Ms. Morrison received services three minutes earlier than she actually did.
A reasonable interpretation of the information in these reports when
looked at in a light most favorable to Morrison is that the reports deliberately
concealed Ms. Morrison’s delayed treatment. It is also reasonable to infer the
reports demonstrated that Hamilton and Rancourt were aware that the delay in
treatment may have contributed to Ms. Morrison’s death.
Based on all of the circumstances, we conclude that a genuine issue of
material fact remained as to whether given their knowledge of the deficiencies
Hamilton, Kaminsky, and Rancourt acted recklessly. As such, the trial court did not
err when it denied the motion for summary judgment as to the Emergency Service
Employees.
Immunity – Chiefs – Chief Haynes and Chief Waugh
The trial court found that a genuine issue of material fact remained as
to whether Chief Haynes’ and Chief Waugh’s conduct was wanton and/or reckless
therefore breaching their immunity.
The Chiefs argue they are entitled to public official immunity as well
as employee immunity under R.C. 2744.03(A)(6). The trial court rejected this claim
finding that “the statutory scheme of R.C. 2744 does not reserve common law public
official immunity for police chief and fire chiefs.” We agree. (See Friga v. E.
Cleveland, 8th Dist. Cuyahoga No. 88262, 2007-Ohio-1716, ¶ 11, finding that
R.C. 2744.02(A)(1) confers statutory immunity to political subdivisions and
preserves common-law immunity only for “an employee who is a county prosecuting
attorney, city director of law, village solicitor, or similar chief legal officer of a
political subdivision, an assistant to such person, or a judge of a court of this state
* * *. R.C. 2744.03(A)(7).”). Since the Chiefs’ positions are not within the specified
employees who are preserved common-law immunity, they cannot claim this
immunity.
The Chiefs argue in the alternative that the trial court erred in finding
that there remained a genuine issue of material fact as to whether their conduct rose
to the level of wanton and/or reckless disregard under R.C. 2744.03(A)(6)(b). The
Chiefs claim they were not directly involved in Ms. Morrison’s care; thus Morrison
never established a special relationship between them and Ms. Morrison. They
argue that if there was no relationship there was no duty of care owed to Ms.
Morrison. Thus, they claim Morrison cannot establish that they owed a duty of care
to Ms. Morrison. Neither can Morrison show that their failure to enact policies and
procedures was the proximate cause of Ms. Morrison’s death.
We have addressed the issue of duty as it applies to cases involving
immunity before in Moore v. Cleveland, 2017-Ohio-1156, 87 N.E.3d 858 (8th Dist.).
In Moore, the appellant appealed a ruling of the trial court granting summary
judgment to the appellees, police officers, finding the police officers were entitled to
immunity under R.C. 2744.03(A)(6). The officers argued that the existence of a legal
duty must be established using conventional tort principles. Id. at ¶ 17-18, citing
Estate of Graves v. Circleville, 124 Ohio St.3d 339, 2010-Ohio-168, 922 N.E.2d 201,
¶ 25 and Wallace v. Ohio Dept. of Commerce, 96 Ohio St.3d 266, 2002-Ohio-4210,
773 N.E.2d 1018.
Noting that “[a]lthough duty is an element of a tort claim, the law is
silent as to the relation of ‘duty’ to the immunity analysis,” the court found “[w]hen
a plaintiff files a civil action against an employee of a political subdivision, the
employee’s entitlement to statutory immunity is a separate question from the
plaintiff’s ability to establish the elements of his or her claim.” Id. at ¶ 23, citing
Argabrite v. Neer, 149 Ohio St.3d 349, 2016-Ohio-8374, 75 N.E.3d 161, ¶ 8, 15. In
other words, we must determine whether the Chiefs are entitled to immunity, not
whether Morrison can ultimately prove his claim. As the Supreme Court noted in
Argabrite, “if the officers had acted recklessly, they would not be entitled to
immunity, but they could still avoid liability by establishing that their reckless
actions were not the proximate cause of Argabrite's injuries.” Id. at ¶ 10.
Accordingly, the Chiefs’ claim that Morrison will not be able to prove
that their conduct was a proximate cause of Ms. Morrison’s injuries is beyond the
scope of our review. If the Chiefs’ conduct removes immunity pursuant to R.C.
2744.03(A)(6)(b), the issue of proximate cause is a question for the trier of fact.
Nevertheless, we must still address the issue of “duty.” As we have
discussed previously, duty is an element to both wanton misconduct and reckless
misconduct. The Chiefs claim, citing to Bush v. Cty. of Ashland, 5th Dist. Ashland
No. 09-CA-25, 2010-Ohio-1732 and Clemets v. Heston, 20 Ohio App.3d 132, 485
N.E.2d 287 (6th Dist.1985), that there must be a special relationship between the
Chiefs and Ms. Morrison, in order for there to be an actionable duty. However, Bush
is distinguishable from the case at hand, because it involved a cause of action for
failure of police to exercise control over a third party who later committed a criminal
act. Clemets is also distinguishable. In Clemets, a case involving a decedent who
committed suicide after being arrested and released for operating a vehicle while
intoxicated, the court dealt with the duty created by statute when police arrest and
subsequently release someone. That is not the situation here.
While neither Bush nor Clemets apply to the facts of this case, we still
must determine whether the Chiefs owed a duty to Ms. Morrison under immunity
analysis. The Supreme Court has not, as yet, addressed the concept of duty in
political subdivision immunity cases. Moore, 2017-Ohio-1156 at ¶ 23. The trial
court elected to examine duty by looking at the traditional definition of the term.
Absent direction from the Supreme Court or the legislature to the contrary, we agree
with the trial court that our analysis of duty starts from the traditional concept:
“Duty, as used in Ohio tort law, refers to the relationship between the
plaintiff and the defendant from which arises an obligation on the part
of the defendant to exercise due care toward the plaintiff.” Commerce
& Industry Ins. Co. [v. Toledo], 45 Ohio St.3d [96,] 98, 543 N.E.2d 1188[(1989)]; see, also, Huston v. Konieczny, 52 Ohio St.3d 214, 217, 556
N.E.2d 505 (1990). This court has often stated that the existence of a
duty depends upon the foreseeability of harm: if a reasonably prudent
person would have anticipated that an injury was likely to result from
a particular act, the court could find that the duty element of negligence
is satisfied. Texler v. D.O. Summers Cleaners & Shirt Laundry Co., 81
Ohio St.3d 677, 680, 693 N.E.2d 271 (1998); Commerce & Industry, 45
Ohio St.3d 96, 98, 543 N.E.2d 1188 (1989); Menifee v. Ohio Welding
Products, Inc., 15 Ohio St.3d 75, 77, 472 N.E.2d 707 (1984). In
addition, we have also stated that the duty element of negligence may
be established by common law, by legislative enactment, or by the
particular circumstances of a given case. Chambers v. St. Mary’s
School, 82 Ohio St.3d 563, 565, 697 N.E.2d 198 (1998); Eisenhuth v.
Moneyhon, 161 Ohio St. 367, 119 N.E.2d 440 (1954), paragraph one of
the syllabus. Admittedly, however, the concept of duty in negligence
law is at times an elusive one.
Moore at ¶ 18, quoting Wallace v. Ohio Dept. of Commerce, 96 Ohio St.3d 266,
2002-Ohio-4210, 773 N.E.2d 1018 at ¶ 23.
In the instant case, we find that a reasonably prudent person would
have anticipated that harm to Morrison was likely to occur if proper address
verification procedures were not implemented. Verification of information, which
is relied upon for life and death decisions, is critical to avoid human error. The
dispatch department was understaffed, overworked, and overwhelmed. It was
generally known and had been reported to the Chiefs that dispatchers were often
called away from the radio to perform other duties. Further, it was generally known
that emergency services had gone to the incorrect address multiple times and that
issue had been raised with the Chiefs. Despite this knowledge, the Chiefs had not
taken sufficient steps to address these issues, nor had they created policies and
procedures for the provision of emergency services. It was foreseeable that these
lapses would lead to delayed treatment causing severe injury and/or death.
Given the foregoing, the potential harm caused by a delay of
treatment to Ms. Morrison was foreseeable. Therefore, the Chiefs did owe a duty of
due care to Ms. Morrison. In order to breach immunity, however, we must
determine whether the Chiefs conduct was wanton and/or reckless. As we have
noted, “wanton misconduct” is a “failure to exercise any care toward those to whom
a duty of care is owed in circumstances in which there is great probability that harm
will result.” Anderson v. Massillon, 2012-Ohio-5711 at ¶ 33, citing Hawkins v. Ivy
50 Ohio St.2d 114, 117-118, 363 N.E.2d 367 (1977). In the instant case, the Chiefs’
failure to institute changes when faced with known issues that posed a serious risk
of harm to those to whom they owed a duty of care, raises a genuine issue of material
fact as to whether their conduct was wanton misconduct.
The determination of whether there remains a genuine issue of
material fact as to whether the Chiefs’ conduct was reckless must be made.
“Reckless conduct” is the “conscious disregard of or indifference to a known or
obvious risk of harm to another that is unreasonable under the circumstances and
is substantially greater than negligent conduct.” Id. at ¶ 34. The record supports a
conclusion that there remained genuine issues of material fact as to whether the
Chiefs’ conduct was reckless. Reasonable minds could disagree on whether the
Chiefs’ knowledge of the problems in the dispatch department, knowledge of
mistaken address, and the failure to take simple steps to address these issues
amounted to a conscious disregard of or indifference to a known or obvious risk of
harm. See Plush v. Cincinnati, 2020-Ohio-6713, 164 N.E.3d 1056, ¶ 40 (1st Dist.)
(although the case involves a Civ.R. 12(b)(6) motion to dismiss and not a summary
judgment, its analysis regarding immunity is relevant here where the court found
that the city manager’s awareness of and failure to address understaffing, training,
and technology malfunctions demonstrated reckless misconduct).
Based on the foregoing, the trial court properly denied the
defendants’ motion for summary judgment as it relates to the Chiefs.
Accordingly, we overrule the Emergency Service Employees’ and the
Chiefs’ assignment of error.
Cross-Appeal by Morrison – Immunity of the City
We now turn to Morrison’s cross-appeal of the trial court’s decision
granting immunity to the City. As we discussed briefly before, there is a three-tiered
analysis to determine whether a political subdivision is immune from liability under
R.C. 2744.02. Rankin v. Cuyahoga Cty. Dept. of Children & Family Servs., 118 Ohio
St.3d 392, 2008-Ohio-2567, 889 N.E.2d 521, ¶ 8, quoting Cater v. Cleveland (1998),
83 Ohio St.3d 24, 28, 697 N.E.2d 610 (1998).
R.C. 2744.02(A)(1) divides the functions of a political subdivision into
two types, governmental functions and proprietary functions. Under the first tier, if
a defendant is determined to be a political subdivision, it is immune from liability
for its governmental and proprietary functions “in a civil action for injury, death, or
loss to person or property allegedly caused by any act or omission of the political
subdivision or an employee of the political subdivision * * *.”
Under the second tier, the immunity conferred under
R.C. 2744.02(A)(1) “is not absolute, but is * * * subject to the five exceptions to
immunity listed in * * * R.C. 2744.02(B).” Hortman v. Miamisburg, 110 Ohio St.3d
194, 2006- Ohio-4251, 852 N.E.2d 716, ¶ 12, quoting Cater, 83 Ohio St.3d at 28, 697
N.E.2d 610 (1998).
The third tier of political subdivision immunity analysis comes into
operation if it is determined that one of the exceptions to immunity under
R.C. 2744.02(B)(1) through (5) applies. Under the third tier, immunity can be
reinstated if the political subdivision can demonstrate that one of the defenses under
R.C. 2744.03 applies. Id.Under the first tier of the analysis, the City qualifies as a political
subdivision. R.C. 2744.01(F). The next question is whether the City was engaged in
a governmental or proprietary function during the incident that caused the claimed
loss. R.C. 2744.01(C)(2)(a) indicates that the “provision or nonprovision of police,
fire, emergency medical, ambulance, and rescue services or protection” is a
“governmental function.” Therefore, the City is entitled to immunity from suit
unless Morrison can establish under the second tier that one of the exceptions to
immunity applies.
Morrison claims that R.C. 2744.02(B)(5) applies in that a statute
exists that expressly imposes civil liability upon the City for its conduct in Ms.
Morrison’s death. Specifically, Morrison cites R.C. 4765.49(B) as imposing liability
on the City in this case. R.C. 4765.49(B) provides:
A political subdivision * * * and any officer or employee * * * that
provides emergency medical services * * * is not liable in damages in a
civil action for injury, death, or loss to person or property arising out of
any actions taken by a first responder * * * unless the services are
provided in a manner that constitutes willful or wanton misconduct.
Morrison argues that Kaminsky and Rancourt acted with wanton
disregard towards Ms. Morrison, by failing to use basic address verification
procedures in response to her 911 call. Morrison concludes that this behavior
amounts to willful and wanton conduct under R.C. 4765.49(B), and therefore,
expressly makes the City liable for damages under R.C. 2744.02(B)(5). We disagree.
As we have already discussed, the record supports the trial court’s
finding that Kaminsky’s and Rancourt’s behavior did not rise to the level of wanton
misconduct. Similarly, we find that their behavior did not rise to the level of willful
misconduct either. The Supreme Court has found that willful misconduct
implies an intentional deviation from a clear duty or from a definite
rule of conduct, a deliberate purpose not to discharge some duty
necessary to safety, or purposefully doing wrongful acts with
knowledge or appreciation of the likelihood of resulting injury. Tighe
v. Diamond, 149 Ohio St. at 520, 80 N.E.2d 122 (1948); see also Black’s
Law Dictionary 1630 (8th Ed.2004) (describing willful conduct as the
voluntary or intentional violation or disregard of a known legal duty).
Anderson v. Massillon, 134 Ohio St.3d 380, 2012-Ohio-5711, 983 N.E.2d 266, ¶ 32.
Given our review of the facts, there is no evidence that Kaminsky’s
and Rancourt’s behavior was an intentional deviation from a clear duty or definite
rule of conduct.
We agree with the trial court that Kaminsky and Rancourt did not act
with wanton or willful disregard. Consequently, the City is entitled to political
subdivision immunity.
Accordingly, Morrison’s cross-assignment of error is overruled.
In summary, under the employees’ assignment of error, Morrison
established that there remained genuine issues of material fact as to whether the
conduct of the Emergency Services Employees was reckless. Further, he established
that there remained genuine issues of material fact as to whether the Chiefs’ conduct
was wanton and/or reckless. Accordingly, the trial court correctly denied them
summary judgment based on political subdivision employee immunity. Under
Morrison’s cross-assignment of error, the City successfully established that there
were no remaining genuine issues of material fact. The conduct of Kaminsky and
Rancourt was neither willful nor wanton. Therefore, the City is entitled to immunity
under R.C. 2744.02.
Judgment affirmed.
It is ordered that appellants/cross-appellees and appellee/cross-appellant
share the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment
into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
EMANUELLA D. GROVES, JUDGE
SEAN C. GALLAGHER, A.J., and
FRANK DANIEL CELEBREZZE, III, J., CONCUR