Burlingame v. Estate of Burlingame , 2013 Ohio 3447 ( 2013 )

[Cite as Burlingame v. Estate of Burlingame, 2013-Ohio-3447.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
GRACE BURLINGAME : Hon. W. Scott Gwin, P.J.
: Hon. William B. Hoffman, J.
Plaintiff-Appellant : Hon. John W. Wise, J.
:
-vs- :
: Case No. 2010-CA-00124
ESTATE OF DALE BURLINGAME, : 2010-CA-00130
ET AL :
: OPINION
Defendants-Appellants
And
JAMES R. COOMBS, II., ET AL
Defendants-Appellees
CHARACTER OF PROCEEDING: Civil appeal on remand from the Ohio
Surpeme Court, Stark County Court of
Common Pleas, Case No. 2009CV00689
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: August 5, 2013
APPEARANCES:
For Plaintiff-Appellant, James Burlingame, For Defendant-Appellee Canton City Fire
Administrator of Estate of Grace Department, Canton City Hall and James R. Combs
Burlingame, Deceased
ELIZABETH A. BURICK KRISTEN BATES AYLWARD
1428 Market Avenue North KEVIN L'HOMMEDIEU
Canton, OH 44714 Canton Law Department
City Hall
Canton, OH
For Appellant Eva Finley, Administrator For Appellant Eva Finley, Administrator
THOMAS LOMBARDI ORVILLE L. REED, III
101 Central Plaza S., Ste 900 Buckingham, Doolittle & Burroughs, LLP
Chase Tower 3800 Embassy Parkway, Suite 300
Canton, OH 44702 Akron, OH 44333
[Cite as Burlingame v. Estate of Burlingame, 2013-Ohio-3447.]
Gwin, P.J.
{¶1} Upon remand from the Supreme Court of Ohio, this Court is asked to
consider whether this Court's ruling in Burlingame v. Estate of Burlingame, 5th Dist. No.
2010–CA–00124, 2011-Ohio-1325, [“Burlingame I”] should be modified in light of the
Supreme Court’s decision in Anderson v. Massillon, 134 Ohio St.3d 380, 2012-Ohio-
5711, 983 N.E.2d 266.
{¶2} We have permitted the parties to brief the issue as framed by the Ohio
Supreme Court.
Facts and Procedural History
{¶3} Plaintiff-appellant Joseph Burlingame, as the representative of the Estate of
Grace Burlingame, deceased, and defendant-appellant, Eva Finley, as the
representative of the Estate of Dale Burlingame, deceased, appeal a summary
judgment of the Court of Common Pleas of Stark County, Ohio, which found
defendants-appellees the City of Canton and its employee James R. Coombs II are
entitled to immunity from liability arising out of an accident between the decedent's
vehicle and a Canton City fire truck.
Assignment of Error
{¶4} Appellant assigns a single error to the trial court:
{¶5} “I. THE TRIAL COURT ERRED WHEN IT GRANTED
DEFENDANTS/APPELLEES’ MOTION FOR SUMMARY JUDGMENT AS
REASONABLE MINDS COULD CONCLUDE THAT DEFENDANTS/APPELLEES
OPERATED THE VEHICLE IN A WANTON, WILLFUL AND/OR RECKLESS
MANNER.”
Stark County, Case No. 2010-CA-00124 & 2010-CA-00130 3
I.
{¶6} In Burlingame I, we found that a firefighter's alleged violations of traffic
statutes and departmental policies were factors a jury could consider to determine
whether the officer's conduct was reckless for purposes of overcoming statutory
immunity, and that genuine issues of material fact as to whether firefighter acted
wantonly or recklessly precluded summary judgment for defendants, based on immunity
from suit.
{¶7} The Ohio Supreme Court clarified the definitions of these terms in
Anderson, holding that “[w]ilfull, wanton, and reckless describe different degrees of care
and are not interchangeable.” Anderson, paragraph one of the syllabus. The Court
further held,
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. 520, 80 N.E.2d 122 (1948), approved and
followed.)
Wanton misconduct is 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. (Hawkins v. Ivy, 50 Ohio St.2d 114, 363
N.E.2d 367 (1977), approved and followed.)
Reckless conduct is characterized by the conscious disregard of or
indifference to a known or obvious risk of harm to another that is
Stark County, Case No. 2010-CA-00124 & 2010-CA-00130 4
unreasonable under the circumstances and is substantially greater than
negligent conduct. (2 Restatement of the Law 2d, Torts, Section 500
(1965), adopted.)
Anderson at paragraphs two, three and four of the syllabus.
{¶8} Additionally, the Court reiterated that violation of a statute, ordinance, or
departmental policy enacted for the safety of the public is not per se willful, wanton, or
reckless conduct but may be relevant to determining the culpability of a course of
conduct. Id. at paragraph five of the syllabus. Nevertheless, “without evidence of an
accompanying knowledge that the violations will ‘in all probability result in injury,’
evidence that policies have been violated demonstrates negligence at best.” (Citations
omitted). Anderson, at ¶38.
{¶9} We find the trial court erred in granting summary judgment. The trial court
must apply the definitions of willful, wanton, and reckless conduct as now defined by the
Ohio Supreme Court in Anderson. Additionally, the trial court erred in the case at bar in
finding violations of internal departmental policies are not relevant to a finding of malice,
bad faith or wanton or reckless manner. The violation of a statute, ordinance, or
departmental policy enacted for the safety of the public is not per se willful, wanton, or
reckless conduct, but may be relevant to determining the culpability of a course of
conduct. Anderson, paragraph five of the syllabus.
Stark County, Case No. 2010-CA-00124 & 2010-CA-00130 5
{¶10} For the foregoing reasons the judgment of the Court of Common Pleas,
Stark County, Ohio is reversed, and the cause is remanded for further proceedings in
accordance with the law and consistent with this opinion.
By Gwin, P.J.,
Hoffman, J., and
Wise, J., concur
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. WILLIAM B. HOFFMAN
_________________________________
HON. JOHN W. WISE
WSG:clw 0722
[Cite as Burlingame v. Estate of Burlingame, 2013-Ohio-3447.]
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
GRACE BURLINGAME :
:
Plaintiff-Appellant :
:
:
-vs- : JUDGMENT ENTRY
:
ESTATE OF DALE BURLINGAME, :
ET AL :
:
:
Defendants-Appellants : CASE NO. 2010-CA-00124
And
JAMES R. COOMBS, II., ET AL
Defendants-Appellees
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of
the Court of Common Pleas of Stark County, Ohio, is reversed, and the cause is
remanded to the court for further proceedings in accordance with law and consistent
with this opinion. Costs to appellees.
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. WILLIAM B. HOFFMAN
_________________________________
HON. JOHN W. WISE
[Cite as Burlingame v. Estate of Burlingame, 2013-Ohio-3447.]
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
GRACE BURLINGAME :
:
Plaintiff-Appellant :
:
:
-vs- : JUDGMENT ENTRY
:
ESTATE OF DALE BURLINGAME, :
ET AL :
:
:
Defendants-Appellants : CASE NO. 2010-CA-00130
And
JAMES R. COOMBS, II., ET AL
Defendants-Appellees
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of
the Court of Common Pleas of Stark County, Ohio, is reversed, and the cause is
remanded to the court for further proceedings in accord with law and consistent with this
opinion. Costs to appellees.
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. WILLIAM B. HOFFMAN
_________________________________
HON. JOHN W. WISE