Riehm v. Green Springs Rural Volunteer Fire Dept. , 122 N.E.3d 226 ( 2018 )

[Cite as Riehm v. Green Springs Rural Volunteer Fire Dept., 2018-Ohio-4075.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SENECA COUNTY
PAUL RIEHM, ADMINISTRATOR
OF THE ESTATE OF LORRI J.
RIEHM, DECEASED,
CASE NO. 13-18-15
PLAINTIFF-APPELLEE,
v.
GREEN SPRINGS RURAL VOLUNTEER OPINION
FIRE DEPARTMENT, ET AL.,
DEFENDANTS-APPELLANTS.
Appeal from Seneca County Common Pleas Court
Trial Court No. 16-CV-0314
Judgment Reversed and Cause Remanded
Date of Decision: October 9, 2018
APPEARANCES:
Stephen D. Strang and Gary L. Nicholson for Appellants
Charles E. Boyk and Wesley D. Merillat for Appellee
Case No. 13-18-15
SHAW, J.
{¶1} Defendants-appellants, Green Springs Rural Volunteer Fire
Department (“GSRVFD”) and Seth T. Knieriemen (“Knieriemen”), bring this
appeal from the April 20, 2018, judgment of the Seneca County Common Pleas
Court denying their summary judgment motions seeking immunity in a negligence,
wrongful death and survival action brought by plaintiff-appellee, Paul Riehm,
Administrator of the Estate of Lorri Riehm. On appeal, appellants contend that the
trial court erred by denying their motions for summary judgment based on
immunity.
I. Relevant Facts and Procedural History
a. Parties
{¶2} GSRVFD is an Ohio non-profit corporation with its principal place of
business in Green Springs, Seneca County, Ohio. Knieriemen was a member of
GSRVFD.
{¶3} Paul Riehm is the husband of Lorri Riehm, who died on June 28, 2016,
when she was backed over by Knieriemen while he was operating a GSRVFD
“brush” truck.1 At the time of the incident, Knieriemen was assisting with a
capsized boat on the Beaver Creek Reservoir, and Lorri was taking a walk around
the reservoir.
1
Testimony indicated that a “brush” truck was used to “put out grass fires,” and to haul smaller equipment.
(Carter Depo. at 27).
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b. Incident Leading to Litigation
{¶4} On June 28, 2016, Gary Overmyer and Charles Musser were fishing on
a 12-foot aluminum boat with an electric trolling motor at the Beaver Creek
Reservoir. At some point, Gary’s chair broke, shifting the weight in the boat, and
the boat capsized, tossing Gary and Charles into the water. Someone on the shore
saw the capsized boat and called the authorities.
{¶5} There was one other boat on the reservoir at the time, on the opposite
side, with two fishermen in it. An individual on the shore told the fishermen about
the capsized boat, so they gathered their things and went to assist. When they
reached the capsized boat, they were unable to get Gary and Charles into their boat,
so they had them hang onto the side.
{¶6} GSRVFD received the call regarding the capsized boat and dispatched
numerous members, including Knieriemen, to the reservoir, along with several of
the department’s apparatuses. Knieriemen traveled to the reservoir as a passenger
in GSRVFD’s “Brush 14,” a Ford F-350 Super Duty, 4x4 pickup truck. Brush 14
had been modified by adding a “skid unit” in the bed of the truck, which was
described as a tank and fire pump. It obstructed approximately 70 percent of the
view from the rear-view mirror. A “protector,” or steel-platform, was also placed
on the back of the truck for firefighters to stand on when combatting field fires.
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{¶7} Brush 14 contained a trailer hitch and towed a rescue boat to the
reservoir. Engine 15, Engine 10, and Tanker 16 also responded to the scene,
containing various members of the department.
{¶8} Upon arrival at the reservoir, Knieriemen and other members of the
GSRVFD used the boat ramp on the eastern shore to launch the rescue boat. The
capsized boat was near the opposite side of the reservoir from the boat ramp.
Knieriemen remained ashore while two other GSRVFD members went in the rescue
boat.
{¶9} Before the rescue boat reached the capsized boaters, it ran out of fuel.
The firemen radioed to shore to indicate they were out of fuel, then proceeded to
paddle the rest of the way to the capsized boaters. The firemen retrieved the boaters,
then took them to the nearest shoreline, on the west side of the reservoir.
{¶10} GSRVFD’s Chief directed members on the eastern shoreline to bring
fuel to the rescue boat on the west side of the reservoir. Knieriemen and other
GSRVFD members got a gas can and took Brush 14 to the top of the embankment
around the reservoir to the west side. However, after arrival, they learned that they
had brought the wrong fuel for the rescue boat. Still, they loaded the two rescued
boaters into Brush 14 and drove back to the other side of the reservoir and dropped
the boaters off with an EMS unit that had also responded to the scene. Then, the
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GSRVFD members obtained the correct fuel and returned it to the rescue boat on
the west side of the reservoir.
{¶11} In the meantime, the other boaters on the reservoir had tied a rope
around the capsized boat and pulled it to the western shoreline. The capsized boat
was not directly beside the rescue boat, however, having drifted.
{¶12} Brush 14 stopped parallel to the rescue boat when it returned with the
correct fuel to the west side of the reservoir. The proper fuel was taken down to the
boat. Then, Knieriemen was informed that the other GSRVFD members were
having trouble removing the capsized boat from the reservoir so he brought the truck
over so they could use it to pull the boat out of the water.2 The capsized boat was
still near the western shore when Brush 14 returned with the fuel can, but it was
between 50 feet and 200 feet away depending on estimates of the GSRVFD
members.
{¶13} Knieriemen walked back to Brush 14, which had its emergency
flashers still in operation but it did not have a reverse warning siren. Knieriemen
got into the vehicle, checked all three of his mirrors, and did not see anyone in front
or behind him other than, “the guys - - our personnel further back here (indicating).”
2
The trial court cited the deposition of Cristin Stickles, who stated that “no one” asked Knieriemen to bring
Brush 14 over to assist in pulling the boat out of the water. Knieriemen testified that he could not remember
if he was asked to move Brush 14. However, Michael Carter testified that there was a discussion that moving
Brush 14 to assist in pulling the boat out of the water “needed to be done,” and that was where Knieriemen
“was going.” (Carter Depo. Tr. at 62).
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(Knieriemen, Depo. at 103). He then placed the truck in reverse, and drove it
backwards on the embankment path at under 5 mph towards where the other
GSRVFD members were working to remove the formerly capsized boat.3 He
indicated that he did not push the throttle down.
{¶14} Meanwhile Lorri Riehm was walking on the path with headphones in
her ears and her cell phone out. Lorri regularly went to the reservoir to walk, and
she had that evening as well. She passed Brush 14 just as Knieriemen was getting
into it. One member of GSRVFD had seen Lorri walking around the rim of the
reservoir, but none of the others deposed indicated that they had.
{¶15} Lorri’s back was to Brush 14 as the truck reversed. Cristin Stickles,
one of the GSRVFD members, noticed Lorri and saw that Knieriemen was about to
back into her. He screamed for Knieriemen to stop multiple times, but by the time
Knieriemen finally stopped, he had completely run Lorri over. As Knieriemen was
backing up, he felt something very small in the truck, as though something shifted
in the truck bed or turnout gear had fallen.
{¶16} Brush 14’s back tire ran over Lorri’s spine and the top of her skull. It
would seem Stickles was the only GSRVFD member who saw the incident, as the
other individuals in the area had their backs turned dealing with the boats in the
reservoir.
3
Knieriemen testified in his deposition that he did not adjust the mirrors in the truck when he got in. He
testified that he was 5’10” and the previous driver was 6’2”.
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{¶17} Lorri died on scene as a result of her injuries.
c. Litigation
{¶18} On December 13, 2016, Paul Riehm, administrator of Lorri’s estate,
filed a complaint against GSRVFD and Knieriemen individually, alleging, inter
alia, negligence, recklessness, respondeat superior, wrongful death, and a survival
action.
{¶19} A joint answer was filed on February 24, 2017, by GSRVFD and
Knieriemen asserting, inter alia, qualified immunity.
{¶20} A number of depositions were taken of various GSRVFD members
that were on the scene, the boaters involved, and the police who investigated the
matter.
{¶21} On January 18, 2018, Knieriemen filed for summary judgment,
asserting immunity as an employee of GSRVFD under R.C. 2744.03(A)(6). He
argued that while it was clear that Lorri’s death was a tragic accident, the evidence
did not establish that Knieriemen’s actions were in bad faith, wanton, or reckless to
remove immunity. He also requested the court dismiss the survival claim because
there was no evidence of conscious pain and suffering on Lorri’s behalf.
{¶22} GSRVFD filed a motion for summary judgment asserting political
subdivision immunity under R.C. 2744.02(B)(1)(b). GSRVFD argued that there
was no indication that Knieriemen’s actions were anything beyond negligent to rise
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to the level of willful or wanton, which was required to remove GSRVFD’s
immunity.
{¶23} On February 21, 2018, Riehm filed consolidated response to the
summary judgment motions. On March 1, 2018, GSRVFD and Knieriemen both
filed replies.
{¶24} On April 20, 2018, the trial court filed a judgment entry denying the
appellants’ summary judgment motions. The court first determined that GSRVFD
was a political subdivision based on R.C. 9.60(F), which states that a private fire
company providing service to a governmental entity has the same immunities and
defenses that a political subdivision has under R.C. 2744.02. The trial court also
determined that the harm Lorri incurred was in connection with a government
function.
{¶25} The trial court then had to determine whether any exceptions to
immunity applied, and one exception did apply, being R.C. 2744.02(B)(1), wherein
GSRVFD would be liable for death as a result of negligent operation of any motor
vehicle by their employee when the employee was within the scope of his
employment. However, there was a full defense available to liability under R.C.
2744.02(B)(1)(b), which states “A member of a municipal corporation fire
department or any other firefighting agency was operating a motor vehicle while
engaged in duty at a fire, proceeding toward a place where a fire is in progress or is
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believed to be in progress, or answering any other emergency alarm and the
operation of the vehicle did not constitute willful or wanton misconduct[.]”
{¶26} Therefore if Knieriemen was still answering an emergency alarm and
his operation of the vehicle did not constitute willful or wanton misconduct,
GSRVFD would not be liable for Lorri’s injuries. The trial court found that
Knieriemen was answering an emergency and acting within the scope of his
employment, thus GSRVFD was entitled to immunity unless Knieriemen’s actions
were willful or wanton. Knieriemen was individually entitled to immunity unless
his acts were with malicious purpose, in bad faith, or in a wanton or reckless manner.
{¶27} After defining the operative terms of willful, wanton, and reckless
based on precedent from the Supreme Court of Ohio, the trial court reasoned as
follows.
There is a genuine issue of material fact regarding whether
Knieriemen’s actions were wanton, willful, or reckless on June 28,
2016. Defendant Knieriemen knew there were pedestrians at the
reservoir. (Plaintiff’s Opposition p. 23). He knew the truck had
obstructed visibility out the rear. (Knieriemen Dep. At 76). He
knew there were at least five (5) individuals behind the truck, yet
he never advised anyone he was backing up; did not activate the
siren or honk the horn to alert people. (Stickles Dep. At 39;
Knieriemen Dep. At 122). He never did a walk around of the
vehicle to check that it was clear. (Plaintiff’s Opposition, Ex. B,
RFA #44). He never requested a spotter. (Plaintiff’s Opposition
p. 23). He had access to a radio and never asked for guidance.
(Id.) When asked why, he claimed there was no purpose in using
a radio. (Knieriemen Dep. At 122). He claimed that providing
assistance in backing up a vehicle “is not a common practice” and
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he presumes the people behind him are watching out for him. (Id.
at 127).
Defendants Green Springs RVFD and Knieriemen argue
that Knieriemen checked his three mirrors before backing up and
didn’t see anyone. (Knieriemen Dep. At 103, 129-130). The
emergency flashers were already on. (Id.) He then proceeded
slowly, and did not even push the throttle down. (Id.) Reasonable
minds could come to different conclusions regarding whether
defendant Knieriemen’s actions were wanton, willful, or reckless.
Accordingly, summary judgment is not appropriate in this matter
on the issue of political subdivision immunity.
(Doc. No. 76). The trial court also determined that a genuine issue of material fact
remained regarding the survival action.
{¶28} Appellants bring this appeal from the trial court’s denial of their
summary judgment motions, asserting the following assignments of error for our
review.
Assignment of Error No. 1
The trial court erred in denying appellant Green Springs
Volunteer Fire Department’s Motion for Summary Judgment.
Assignment of Error No. 2
The trial court erred in denying Appellant Seth T. Knieriemen’s
Motion for Summary Judgment.
Assignment of Error No. 3
The trial court erred in denying the dismissal of the Appellee’s
survival action.
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II. Law and Analysis
a. Standard of Review
{¶29} “Whether a party is entitled to immunity is a question of law properly
determined by the court prior to trial pursuant to a motion for summary
judgment.” Pelletier v. City of Campbell, --- Ohio St.3d ---, 2018-Ohio-2121, ¶ 12,
citing Conley v. Shearer, 64 Ohio St. 3d 284, 292, 595 N.E.2d 862 (1992)
and Riscatti v. Prime Properties Ltd. Partnership, 137 Ohio St. 3d 123, 2013-Ohio-
4530, 998 N.E.2d 437, ¶ 17 (noting the importance of deciding a political
subdivision’s entitlement to immunity before trial).
{¶30} The review of a summary judgment denying political-subdivision
immunity is de novo and is governed by the summary-judgment standard set forth
in Civ.R. 56. Pelletier at ¶ 13, citing Comer v. Risko, 106 Ohio St. 3d 185, 2005-
Ohio-4559, 833 N.E.2d 712, ¶ 8.
{¶31} The Supreme Court of Ohio explained in M.H. v. Cuyahoga Falls,
Summary judgment may be granted when “(1) [n]o genuine issue
as to any material fact remains to be litigated; (2) the moving
party is entitled to judgment as a matter of law; and (3) it appears
from the evidence that reasonable minds can come to but one
conclusion, and viewing such evidence most strongly in favor of
the party against whom the motion for summary judgment is
made, that conclusion is adverse to that party.”
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(Brackets sic.) 134 Ohio St. 3d 65, 2012-Ohio-5336, 979 N.E.2d 1261, ¶ 12,
quoting Temple v. Wean United, Inc., 50 Ohio St. 2d 317, 327, 364 N.E.2d 267(1977).
b. Political Subdivision Immunity
{¶32} Although GSRVFD is a private, nonprofit entity, Revised Code 9.60
provides that
A private fire company or private, nonprofit emergency medical
service organization providing service pursuant to this section to
a governmental entity in this state or another jurisdiction has the
same immunities and defenses in a civil action that a political
subdivision has under section 2744.02 of the Revised Code. The
employees of such a fire company or emergency medical service
organization have the same immunities and defenses in a civil
action that employees of a political subdivision have under section
2744.03 of the Revised Code.
Thus if GSRVFD was providing service to a governmental entity, it has the same
immunities as a political subdivision, and its employees would as well.
{¶33} Determining whether a political subdivision is immune from tort
liability pursuant to R.C. Chapter 2744 involves a familiar, three-tiered analysis:
“The first tier is the general rule that a political subdivision is
immune from liability incurred in performing either a
governmental function or proprietary function. * * * However,
that immunity is not absolute. R.C. 2744.02(B); Cater v.
Cleveland, 83 Ohio St. 3d 24, 28, 697 N.E.2d 610 (1988).
“The second tier of the analysis requires a court to determine
whether any of the five exceptions to immunity listed
in R.C. 2744.02(B) apply to expose the political subdivision to
liability. Id. at 28, 697 N.E.2d 610. At this tier, the court may also
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need to determine whether specific defenses to liability for
negligent operation of a motor vehicle listed
in R.C. 2744.02(B)(1)(a) through (c) apply.
“If any of the exceptions to immunity in R.C. 2744.02(B) do apply
and no defense in that section protects the political subdivision
from liability, then the third tier of the analysis requires a court
to determine whether any of the defenses in R.C. 2744.03 apply,
thereby providing the political subdivision a defense against
liability.”
(Ellipsis sic.) Riffle v. Physicians & Surgeons Ambulance Serv., Inc., 135 Ohio St. 3d
357, 2013-Ohio-989, 986 N.E.2d 983, ¶ 15, quoting Colbert v. Cleveland, 99 Ohio
St.3d 215, 2003-Ohio-3319, 790 N.E.2d 781, ¶ 7–9.
c. First Tier Immunity Analysis
{¶34} The first determination that needs to be made in this case is whether
GSRVFD is entitled to claim the immunities of a political subdivision. The appellee
argues, contrary to the trial court’s finding, that GSRVFD did not demonstrate that
it was performing contractual fire protection for a governmental entity.
{¶35} The trial court found that GSRVFD provided fire and rescue services
and that pursuant to R.C. 9.60 it was entitled to the same immunities extended to a
political subdivision. The trial court also determined that the alleged harm in this
case occurred in connection with a government function, reasoning that providing
rescue services satisfied the governmental function.
{¶36} We agree with the trial court. There is no evidence in the record that
GSRVFD is anything but a private, non-profit entity that provides, inter alia, fire
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and rescue services to the area of the incident in question. Thus the evidence
indicates that GSRVFD was performing contractual services for a governmental
entity.
{¶37} While the appellee argues that there was no indication that GSRVFD
was providing contractual “fire protection” in this case, the definition of “fire
protection” in R.C. 9.60 includes “rescue” services, and R.C. 2744.01(C)(2)(a)
similarly states that rescue services qualifies as a governmental function.4 The trial
court found that the rescue services in this case amounted to a governmental
function, and we agree. Thus in the first tier analysis, GSRVFD would qualify for
the immunities in R.C. 2744.02, and Knieriemen as its employee, would as well.
d. Second Tier Immunity Analysis
{¶38} In the second tier of the immunity analysis, we look at whether any
exceptions to apply to expose the entity to liability. Revised Code 2744.02(B)(1)
contains an exception that reads, “Except as otherwise provided in this division,
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.” Thus
there is a general exception to immunity in this case.
4
Appellee seems to assert that in order to satisfy the first tier immunity analysis, GSRVFD and Knieriemen
should have had to attach the contract describing precisely what services GSRVFD was contracted to provide.
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{¶39} However, R.C. 2744.02(B)(1) also contains “full defenses to that
liability.” As relevant to this case, R.C. 2744.02(B)(1)(b) provides a full defense to
liability if, “A member of a municipal corporation fire department or any other
firefighting agency was operating a motor vehicle while engaged in duty at a fire,
proceeding toward a place where a fire is in progress or is believed to be in progress,
or answering any other emergency alarm and the operation of the vehicle did not
constitute willful or wanton misconduct[.]”
{¶40} Based on this section of the Revised Code, GSRVFD would have a
full defense to liability if Knieriemen was “engaged in duty at a fire,” or “answering
any other emergency alarm,” and Knieriemen’s operation of the vehicle did not
constitute willful or wanton misconduct. The trial court found that “Knieriemen
was assisting in an active emergency scene at the time of the accident[,]” summarily
indicating that he satisfied the requirement to be “answering any other emergency
alarm.” The appellee did not file a cross-appeal regarding this finding of the trial
court; however, the appellee does maintain that a denial of summary judgment is
appropriate in this case as there is an issue of fact as to whether Knieriemen was
answering an emergency alarm. The appellee seems to want to restrict the language
in the statute; however, given that the statute provides for conduct when “engaged
in duty at a fire” it would stand to reason that “answering any other emergency
alarm” would encompass more than merely getting to a rescue scene. See Campbell
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v. Colley, 113 Ohio App. 3d 14, 20, 680 N.E.2d 201, 204 (4th Dist.1996) (“courts
have interpreted the word ‘emergency’ broadly as it applies to the characterization
of situations to which emergency personnel respond.”). We see no reason to depart
from the trial court’s finding on this issue.5 Thus GSRVFD would have a full
defense to liability if Knieriemen’s conduct was not willful or wanton.
{¶41} Similarly, Knieriemen individually would be entitled to immunity as
an employee of a political subdivision pursuant to R.C. 2744.03(A)(6) unless his
acts were manifestly outside the scope of his employment or responsibilities or his
acts or omissions were not done with malicious purpose, in bad faith, in a wanton
or reckless manner.
{¶42} The Supreme Court of Ohio has defined all of the requisite operative
terms—willful, wanton, and reckless—finding that they describe different and
distinct degrees of care and are not interchangeable.
{¶43} “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.” Anderson v. Massillon, 134 Ohio
St.3d 380, 2012-Ohio-5711, 983 N.E.2d 266 (2012) at paragraph 2 of syllabus.
5
We would note that while at the time of the accident the capsized boaters had been rescued, their boat
remained in the water and the other boaters on the reservoir had run out of power trying to assist.
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{¶44} “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.” Anderson at paragraph 3 of syllabus.
{¶45} “Reckless conduct is characterized by 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 at paragraph 4 of syllabus.
{¶46} “All three standards–willful, wanton, and reckless–describe conduct
that is more than mere negligence. * * * If reasonable minds could only conclude
that the employee’s conduct demonstrates, at most, negligence, then summary
judgment is appropriate.” Hoffman v. Gallia Cty. Sheriff's Office, 4th Dist. Gallia
No. 17CA2, 2017-Ohio-9192, ¶ 47
{¶47} The events that occurred in this case are essentially undisputed. The
reservoir was a recreational area where people occasionally went to boat, fish, and
walk, amongst other things. On the evening of the incident, Lorri had gone to the
reservoir to walk.
{¶48} Knieriemen was at the reservoir in response to a call regarding a
capsized boat.6 After the occupants of the capsized boat were rescued, GSRVFD
6
In an attempt to characterize the department as perhaps habitually negligent at the scene, appellees argue
that GSRVFD actually sent a specific water rescue unit away. However, testimony indicated that the water
rescue unit only arrived after GSRVFD “had already been across to the boaters.” (Chief Lowe Depo. at 70).
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members were still attempting to get the boat out of the water. In order to assist
with pulling the boat out of the water, Knieriemen went to move Brush 14 from near
the rescue boat to near the formerly capsized boat. Michael Carter, Jr., of GSRVFD
testified that as Knieriemen was entering one side of the vehicle, Lorri was walking
past the other side. (Carter Depo. at 64-65). Carter was down by the water at the
time. Knieriemen did not walk around Brush 14 or seek a spotter.
{¶49} The emergency lights were still on in Brush 14, but it did not have an
alarm for reverse at the time. Knieriemen checked all three of his mirrors, which
included the rearview mirror with its obstructed view. He did not see anyone other
than their personnel, then he placed Brush 14 in reverse. Knieriemen indicated he
did not push the throttle down, and that he backed up at less than 5 mph.7
{¶50} Cristin Stickles of GSRVFD saw Lorri walking behind Brush 14 with
headphones in and her cell phone out. She was “right behind the truck * * * so there
wasn’t like a gap or any distance in between them.” (Stickles Depo. at 46). He
yelled for Knieriemen to stop multiple times, but by the time he did he had run Lorri
over.
{¶51} It seems evident from the facts that Knieriemen’s conduct could
constitute negligence; however, in order for GSRVFD to be subject to liability, his
7
The officer investigating the scene testified that he saw no indication of “horseplay,” that there was no
indication that Knieriemen knew he would probably injure someone when backing up, and no indication that
he acted recklessly. (Deputy Smith Depo. at 76-78).
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conduct had to be far beyond negligent. His conduct had to either be willful or
wanton. Willful indicates a deliberate act, which the evidence simply does not
support here in any respect. Thus we must focus on wanton misconduct.
{¶52} Notably, by definition, wanton misconduct is the failure to exercise
any care in a circumstance where there is a great probability that harm will result.
There certainly was more that Knieriemen could have done in this case, but, there
is no indication that he failed to exercise any care.
{¶53} Knieriemen checked all three of his mirrors and saw no one in his path,
and he backed up slowly while the emergency lights were still flashing. There is no
evidence that he backed up quickly or that he did so without paying any attention
whatsoever to his surroundings. To the contrary, the only evidence in the record
demonstrates that Knieriemen did exercise some care. See Ibrahim v. City of
Dayton, 2d Dist. Montgomery No. 27699, 2018-Ohio-1318, ¶ 17 (officer who
backed up car without checking behind him exercised “at least a modicum of care”
by reversing at a low speed such that wanton conduct was not present); Scott v.
Kashmiry, 10th Dist. Franklin No. 15AP-139, 2015-Ohio-3902, ¶ (“failure to heed
caution still rises only to the level of negligence. * * * ‘Mere negligence is not
converted into wanton misconduct unless the evidence establishes a disposition to
perversity on the part of the tortfeasor,’ and ‘[s]uch perversity must be under such
conditions that the actor must be conscious that his conduct will in all probability
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result in injury.’ (Internal quotations omitted.) Rankin v. Cuyahoga Cty. Dept. of
Children & Family Servs., 118 Ohio St. 3d 392, 2008-Ohio-2567, 889 N.E.2d 521,
¶ 37.).
{¶54} This case certainly presents a tragic accident, but the immunity statutes
were designed to prevent liability unless certain extreme conduct was present. The
facts of this case do not rise to the level of willful or wanton conduct to subject
GSRVFD to liability.
{¶55} The trial court seemed particularly concerned with Knieriemen’s
failure to walk around the vehicle or to get a spotter, things that were suggested in
the standard operating guidelines for GSRVFD. However, these issues may show
that Knieriemen was negligent, but they do not show that he was acting willfully or
wantonly, failing to exercise any care. See Argabrite v. Neer, 149 Ohio St. 3d 349,
2016-Ohio-8374, ¶ 25 (2016), quoting O'Toole, 118 Ohio St. 3d 374, 2008-Ohio-
2574, 889 N.E.2d 505, at paragraph three of the syllabus. (“ ‘[E]vidence of a
violation of departmental policy does not create a genuine issue of material fact as
to whether the violator acted with malicious purpose, in bad faith or in a wanton or
recklessness [sic] manner without evidence that the violator was aware that his
“conduct [would] in all probability result in injury.’ ”). Thus we find that the trial
court erred on this matter.
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{¶56} As to Knieriemen individually, he could still be liable if his conduct
constituted recklessness. Recklessness implies conduct that is substantially greater
than negligence. Knieriemen’s failure to follow standard operating guidelines does
not establish a genuine issue of material fact as to whether there was more than
negligence here, particularly where he did not see, and perhaps could not have seen,
Lorri. Knieriemen’s conduct could certainly be considered negligent, but not
substantially greater than negligent. Therefore, we find that the trial court also erred
on this issue.
{¶57} Based on our resolution of the second tier analysis, we need not
proceed to the third tier related to GSRVFD, therefore, appellants’ first assignment
of error is sustained. As we have determined that Knieriemen’s conduct was not
reckless, appellant’s second assignment of error is also sustained.
{¶58} In appellants’ third assignment of error, they argue that the trial court
erred in denying their summary judgment motion regarding a survival action.
However, based on our resolution of the first and second assignments of error, we
are compelled to sustain the third assignment of error as the appellants are rendered
immune from liability. Therefore, the third assignment of error is also sustained.
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IV. Conclusion
{¶59} For the foregoing reasons the assignments of error are sustained and
the judgment of the Seneca County Common Pleas Court is Reversed. This cause
is remanded to the trial court for further proceedings consistent with this opinion.
Judgment Reversed and
Cause Remanded
PRESTON, J., concurs.
/jlr
ZIMMERMAN, J., dissents.
{¶60} Whether or not a political subdivision or its employee may invoke
immunity under R.C. Chapter 2744 is generally a question of law. Hoffman v.
Gallia Cty. Sheriff’s Office, 4th Dist. Gallia No. 17CA2, 2017-Ohio-9192, 103
N.E.3d 1, ¶ 38. In doing so, the Ohio Supreme Court has promulgated a three-step
analysis in determining a political subdivision’s immunity from liability. Cramer
v. Auglaize Acres, 113 Ohio St. 3d 266, 2007-Ohio-1946, 865 N.E.2d 9, ¶ 14.
However, whether a political subdivision employee acted with malicious purposes,
in bad faith, or in a wanton or reckless manner generally is a question of fact.
Cannavino v. Rock Ohio Caesars Cleveland, L.L.C., 8th Dist. Cuyahoga No.
103566, 2017-Ohio-380, 83 N.E.3d 354, ¶ 26. As such, summary judgment on
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immunity (under R.C. 2744.03(A)(6)(b)) is proper unless reasonable minds can only
conclude that the employee (in question) did not act willfully, wantonly,
maliciously, recklessly, or in bad faith. Argabrite v. Neer, 149 Ohio St. 3d 349,
2016-Ohio-8374, ¶ 15.
{¶61} In this case, I agree with the majority that in order for GSRVFD to be
held liable, Knieriemen’s conduct must be willful or wanton misconduct. Even
though the “line between such misconduct and ordinary negligence is sometimes a
fine one depending on the particular facts of a case, it is generally recognized that
such issue is for the jury to decide.” Thompson v. Smith, 178 Ohio App. 3d 656,
2008-Ohio-5532, 899 N.E.2d 1040, ¶ 43 citing Reynolds v. City of Oakwood, 38
Ohio App. 3d 125, 127, 528 N.E.2d 578 (2nd Dist.1987). “This issue should not be
withheld from the jury where reasonable minds might differ as to the import of the
evidence.” Id. Nevertheless, I agree with the majority’s determination that
Knieriemen’s conduct was not willful or wanton, as a matter of law, under the
evidence presented. Thus, summary judgment should have been granted by the trial
court to GSRVFD.
{¶62} However, the majority’s determination that Knieriemen’s conduct was
not reckless, as a matter of law (thus entitling him to personal immunity) is flawed.
{¶63} To begin, the majority has mischaracterized crucial evidence by
(seemingly) relying solely on Knieriemen’s testimony. Even though the majority
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asserts (that) Knieriemen checked all of the mirrors of the Brush 14 truck before
backing (seeing no one), a genuine issue of fact exists as to whether or not the
mirrors were capable of providing Knieriemen with a clear view of what was behind
him due to the slope of the embankment (upon which the truck was parked) and the
obstruction in the bed of the truck. The majority further asserts that Knieriemen’s
speed, while backing up, was “less than 5 m.p.h.,” despite Knieriemen’s contention
that he did not know either how far he travelled (backing) or how fast the truck was
moving while he was driving. (See generally, Knieriemen Dep. Tr. at 130).8
{¶64} I agree with the trial court’s determination that a genuine issue of
material fact exists as to whether or not Knieriemen’s conduct was reckless. “The
question of whether a person has acted recklessly is almost always a question for
the jury.” Mashburn v. Dutcher, 5th Dist. Delaware No. 12 CAE010003, 2012-
Ohio-6283, 14 N.E.3d 383, ¶ 48 citing Hunter v. Columbus, 139 Ohio App. 3d 962,
970, 746 N.E.2d 246 (10th Dist.2000). In the case before us, reasonable minds
could differ whether Knieriemen’s voluntary decision to back Brush 14 either up or
down the reservoir embankment, unaided, with questionable visibility to the rear,
knowing that at least five (5) people were behind him, was in fact reckless and not
merely negligent.
8
In my review of Knieriemen’s deposition, I note that he responded “I do not recall” or “I do not specifically
recall” approximately 100 times. To this writer, credibility is a factor that should be considered.
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{¶65} For that reason, I would affirm the trial court’s denial of summary
judgment as to Knieriemen.
{¶66} Therefore, I dissent.
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