Riffle v. Physicians & Surgeons Ambulance Service, Inc.

[Cite as Riffle v. Physicians & Surgeons Ambulance Serv., Inc., 135 Ohio St.3d 357, 2013-
Ohio-989.]
RIFFLE ET AL., APPELLEES, v. PHYSICIANS AND SURGEONS AMBULANCE
SERVICE, INC., D.B.A. AMERICAN MEDICAL RESPONSE, ET AL.;
THE CITY OF AKRON, APPELLANT.
[Cite as Riffle v. Physicians & Surgeons Ambulance Serv., Inc.,
135 Ohio St.3d 357, 2013-Ohio-989.]
Political-subdivision immunity—R.C. 4765.49(B) expressly imposes civil liability
on a political subdivision for purposes of R.C. 2744.02(B)(5).
(No. 2012-0205—Submitted January 9, 2013—Decided March 21, 2013.)
APPEAL from the Court of Appeals for Summit County,
No. 25829, 2011-Ohio-6595.
__________________
O’DONNELL, J.
{¶ 1} The city of Akron appeals from a judgment of the Ninth District
Court of Appeals that affirmed the denial of its motion for judgment on the
pleadings in connection with Andrea and Dan Riffle’s wrongful-death and
medical claims alleging that the city and its medical-emergency personnel
negligently, recklessly, and wantonly caused the death of their infant daughter.
At issue in this case is whether a political subdivision is immune from liability for
the willful or wanton misconduct of its first responders when providing
emergency medical services. The parties here ask us to determine whether R.C.
4765.49(B) is an additional immunity defense or is an express imposition of
liability for purposes of R.C. 2744.02(B)(5).
{¶ 2} R.C. 2744.02(A)(1) states that except as provided in division (B), a
political subdivision is not liable in damages for injury allegedly caused by an act
of an employee of the political subdivision in connection with a governmental or
proprietary function. Providing emergency medical services is a governmental
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function. See R.C. 2744.01(C)(2)(a). Division (B)(5) establishes an exception to
immunity when civil liability is expressly imposed upon a political subdivision by
the Revised Code, and relevant to this case, R.C. 4765.49(B) provides that a
political subdivision is liable for injury arising out of any actions taken by a first
responder, EMT-basic, EMT-I, or paramedic when emergency medical services
are provided in a manner that constitutes willful or wanton misconduct.
{¶ 3} The complaint filed in this case alleges that the city of Akron and
its employees provided emergency medical services negligently, recklessly, and
wantonly; wanton misconduct, pursuant to R.C. 4765.49(B), is an exception to
political-subdivision immunity, and the complaint therefore states a claim upon
which relief may be granted. For this reason, the judgment of the court of appeals
is affirmed.
Facts and Procedural History
{¶ 4} In the early morning hours of December 26, 2008, the city of
Akron Fire Department EMS received an emergency call advising that Andrea
Riffle, then in her third trimester of pregnancy, had begun experiencing serious
vaginal bleeding. Company Officer Todd Kelly, Paramedic Stacie Frabotta, and
Medics Peter Mattucci and Thomas Whatley all responded to the call. They took
Riffle’s vital signs but did not assess the unborn child or transport Riffle to the
hospital; instead, they contacted a private ambulance service, Physicians and
Surgeons Ambulance Service, Inc., doing business as American Medical
Response, which arrived a few minutes later and transported Riffle to the labor
and delivery unit at Akron City Hospital.
{¶ 5} Doctors there diagnosed the unborn child with fetal bradycardia—a
fetal heart rate of less than 100 beats per minute, Stedman’s Medical Dictionary
230 (26th Ed.1995)—and as a result, performed an emergency cesarean section.
After the child’s birth, doctors determined that a placental abruption precipitated
the fetal bradycardia. The baby survived for only three days.
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{¶ 6} The Riffles sued the city of Akron and several of its medical-
emergency personnel and Physicians and Surgeons Ambulance Service, alleging
that each had negligently, recklessly, and wantonly caused the death of their
daughter. The city moved for judgment on the pleadings, claiming immunity. The
trial court denied the city’s motion, concluding that R.C. 4765.49(B) provides for
an exception to political-subdivision immunity when emergency medical services
are provided in a manner constituting willful or wanton misconduct.
{¶ 7} The city appealed. The Ninth District Court of Appeals rejected the
trial court’s analysis construing R.C. 4765.49(B) as an exception to political-
subdivision immunity as expressed in R.C. 2744.02. Riffle v. Physicians &
Surgeons Ambulance Serv., 9th Dist. No. 25829, 2011-Ohio-6595, 969 N.E.2d
297, ¶ 7-8. Rather, the appellate court determined that because both R.C.
2744.02(A)(1) and R.C. 4765.49(B) afford immunity to a political subdivision for
providing emergency medical services but only R.C. 4765.49(B) contains an
exception, the two statutes conflict. Id. at ¶ 11. It therefore held that “R.C.
4765.49(B) more specifically addresses governmental entities that provide
emergency medical services than does R.C. 2744.02, and, therefore, it, rather than
the more general provisions of R.C. 2744.02, applies to the alleged facts of this
case.” Id. at ¶ 2. Thus, the court concluded that the city is not immune from
liability for any willful or wanton misconduct of its medical-emergency
personnel, and it affirmed the trial court on that basis.
Arguments on Appeal
{¶ 8} The city of Akron now appeals to this court and presents one
proposition of law: R.C. 4765.49 does not conflict with R.C. 2744.02 under an
R.C. 1.51 analysis, but serves as an additional immunity defense under R.C.
2744.03(A)(7).
{¶ 9} Even though the parties agree that providing emergency medical
services is a governmental function for which the city is immune, the city asserts
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that none of the exceptions to immunity set forth in R.C. 2744.02(B) imposes
liability in this case for performing that governmental function. It claims that
R.C. 4765.49(B) does not create an exception to immunity but instead provides an
additional defense to liability that becomes relevant only if one of the exceptions
to liability set forth in R.C. 2744.02(B) applies. It further maintains that no
conflict exists between R.C. 2744.02 and R.C. 4765.49(B), because they can be
read in harmony.
{¶ 10} The Riffles contend that R.C. 4765.49(B) expressly imposes
liability on political subdivisions for injuries caused by the willful or wanton
misconduct of first responders and note that the city’s argument renders R.C.
4765.49(B) meaningless with regard to political-subdivision liability, because if
the city is correct, a political subdivision will never be liable for injuries caused
by those who provide emergency medical services, regardless of the degree of
fault. But, they argue, if the court determines that R.C. 4765.49(B) does not
provide an express exception to immunity, then the court should hold that it
irreconcilably conflicts with R.C. 2744.02 and that R.C. 4765.49(B) controls
because it is the more specific immunity statute.
{¶ 11} Because R.C. 4765.49(B) expressly imposes liability on a political
subdivision when emergency medical services are provided in a manner that
constitutes willful or wanton misconduct, the exception to immunity contained in
R.C. 2744.02(B)(5) applies, and therefore a political subdivision is not immune
from liability under the circumstances alleged in the complaint.
Law and Analysis
Immunity for Providing Emergency Medical Services
{¶ 12} At common law, political subdivisions enjoyed immunity for the
performance of governmental functions, which included providing emergency
services. See Frederick v. Columbus, 58 Ohio St. 538, 51 N.E. 35 (1898),
syllabus; Hall v. Youngstown, 15 Ohio St.2d 160, 164, 239 N.E.2d 57 (1968);
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King v. Williams, 5 Ohio St.3d 137, 140, 449 N.E.2d 452 (1983) (“emergency
medical services fit within the classic definition of governmental functions”). We
recognized, however, that the General Assembly had the authority to abrogate
common law immunity of political subdivisions. See Frederick at the syllabus
(“A municipal corporation is not, in the absence of any statutory provision, liable
in damages to one injured by the negligent acts of its fire department or any of its
members” [emphasis added]); see also Broughton v. Cleveland, 167 Ohio St. 29,
30, 146 N.E.2d 301 (1957) (“Ohio has consistently followed and applied the rule
that, except as otherwise provided by statute, municipal corporations are exempt
from liability for negligence in the performance or nonperformance of their
governmental functions” [emphasis added]).
{¶ 13} In 1976, the General Assembly enacted Am.Sub.H.B. No. 832 to,
among other things, “specify liability for emergency medical service,” 136 Ohio
Laws, Part II, 3042, and in R.C. 4731.90(B), which was in that act and is a
predecessor of R.C. 4765.49, it imposed liability on political subdivisions for
emergency medical services provided in a manner constituting willful or wanton
misconduct:
No political subdivision * * * nor any officer or employee
of a public agency * * * that provides emergency medical services
* * * shall be liable in civil damages for damages arising out of
any actions taken by an EMT-A or paramedic working under the
officer’s or employee’s jurisdiction * * * unless the care,
treatment, or assistance is provided in a manner constituting willful
or wanton misconduct.
136 Ohio Laws, Part II, 3052-3053.
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{¶ 14} In 1982, this court abolished the common law immunity of
political subdivisions in Haverlack v. Portage Homes, Inc., 2 Ohio St.3d 26, 30,
442 N.E.2d 749 (1982), holding that the defense of sovereign immunity is not
available in the absence of a statute providing immunity.
R.C. Chapter 2744
{¶ 15} In R.C. 2744.02(A)(1), the legislature, in 1985, reinstated political-
subdivision immunity for governmental functions, which includes providing
emergency medical services, R.C. 2744.01(C)(2)(a). As we explained in Colbert
v. Cleveland, 99 Ohio St.3d 215, 2003-Ohio-3319, 790 N.E.2d 781:
Determining whether a political subdivision is immune
from tort liability pursuant to R.C. Chapter 2744 involves a three-
tiered analysis. Greene Cty. Agricultural Soc. v. Liming (2000), 89
Ohio St.3d 551, 556–557, 733 N.E.2d 1141. 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. Id. at 556–557, 733 N.E.2d 1141; R.C.
2744.02(A)(1). However, that immunity is not absolute. R.C.
2744.02(B); Cater v. Cleveland (1998), 83 Ohio St.3d 24, 28, 697
N.E.2d 610.
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 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.
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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.
Id. at ¶ 7-9.
The R.C. 2744.02(B)(5) Exception
{¶ 16} Among other exceptions to immunity contained in R.C.
2744.02(B), R.C. 2744.02(B)(5) states that “a political subdivision is liable for
injury, death, or loss to person or property when civil liability is expressly
imposed upon the political subdivision by a section of the Revised Code.” The
General Assembly, however, stated that
[c]ivil liability shall not be construed to exist under another section
of the Revised Code merely because that section imposes a
responsibility or mandatory duty upon a political subdivision,
because that section provides for a criminal penalty, because of a
general authorization in that section that a political subdivision
may sue and be sued, or because that section uses the term “shall”
in a provision pertaining to a political subdivision.
Id.
R.C. 4765.49(B)
{¶ 17} The year after the General Assembly enacted R.C. Chapter 2744,
reinstating political-subdivision immunity, it recodified R.C. 4731.90 as R.C.
3303.21, Am.Sub.H.B. No. 222, 141 Ohio Laws, Part II, 2704, 2725-2727, and in
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1992, it amended and recodified it as R.C. 4765.49, Am.Sub.S.B. No. 98, 144
Ohio Laws, Part I, 343, 500-502. The current version of R.C. 4765.49 is the
result of an April 2007 amendment:
A political subdivision * * *, and any officer or employee
of a public agency * * *, 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, EMT-basic, EMT-I, or paramedic working under the
officer’s or employee’s jurisdiction, or for injury, death, or loss to
person or property arising out of any actions of licensed medical
personnel advising or assisting the first responder, EMT-basic,
EMT-I, or paramedic, unless the services are provided in a manner
that constitutes willful or wanton misconduct.
(Emphasis added.)
{¶ 18} Notably, appellate districts around the state have concluded that
R.C. 4765.49 (or one of its predecessor statutes—R.C. 3303.21 or R.C. 4731.90)
denies immunity when emergency medical services are provided in a manner
constituting willful or wanton misconduct. See, e.g., Fuson v. Cincinnati, 91
Ohio App.3d 734, 633 N.E.2d 612 (1st Dist.1993); Denham v. New Carlisle, 138
Ohio App.3d 439, 443, 741 N.E.2d 587 (2d Dist.2000); Dickman v. Elida
Community Fire Co., 141 Ohio App.3d 589, 591, 752 N.E.2d 339 (3d Dist.2001);
Campbell v. Colley, 113 Ohio App.3d 14, 20, 680 N.E.2d 201 (4th Dist.1996)
(applying former R.C. 3303.21(D); case involved no political subdivision, so R.C.
2744.02 not involved); Gordon v. Strasburg, 5th Dist. No. 88AP050038, 1988
WL 119945 (Oct. 21, 1988); Mitchell v. Norwalk Area Health Servs., 6th Dist.
No. H-05-002, 2005-Ohio-5261, 2005 WL 2415995, ¶ 55; Sopkovich v. Gold
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Cross Ambulance, 7th Dist. No. 90 C.A. 37, 1992 WL 19834 (Feb. 6, 1992);
Johnson v. Cleveland, 194 Ohio App.3d 355, 2011-Ohio-2152, 956 N.E.2d 355,
¶ 21 and fn. 2 (8th Dist.); Blair v. Columbus Div. of Fire, 10th Dist. No. 10AP-
575, 2011-Ohio-3648, 2011 WL 3073870, ¶ 28-29; Bush v. Community Care
Ambulance Network, 11th Dist. No. 2011-A-0072, 2012-Ohio-4458, 2012 WL
4481299, ¶ 26 (applying R.C. 4765.49(A); case involved no political subdivision,
so R.C. 2744.02 not involved); Wright v. Hamilton, 141 Ohio App.3d 296, 301,
750 N.E.2d 1190 (12th Dist.2001).
{¶ 19} As we explained in Clark v. Scarpelli, 91 Ohio St.3d 271, 278, 744
N.E.2d 719 (2001), “[i]t is presumed that the General Assembly is fully aware of
any prior judicial interpretation of an existing statute when enacting an
amendment.” And we have observed that “ ‘the General Assembly has shown no
hesitation in acting promptly when it disagrees with appellate rulings involving
statutory construction and interpretation.’ ” In re Bruce S., 134 Ohio St.3d 477,
2012-Ohio-5696, 983 N.E.2d 350, ¶ 11, quoting State v. Ferguson, 120 Ohio
St.3d 7, 2008-Ohio-4824, 896 N.E.2d 110, ¶ 23.
{¶ 20} Furthermore, while the General Assembly has amended R.C.
4765.49 on multiple occasions subsequent to enacting R.C. Chapter 2744—most
recently in legislation passed on December 13, 2012, 2012 Am.Sub.H.B. No. 284,
effective March 22, 2013—it has not attempted to abrogate these appellate court
holdings.
{¶ 21} We reject the conclusion of the court of appeals here that R.C.
4765.49(B) conflicts with R.C. 2744.02(A)(1). As explained in Summerville v.
Forest Park, 128 Ohio St.3d 221, 2010-Ohio-6280, 943 N.E.2d 522, “ ‘[i]t is a
well-settled rule of statutory interpretation that statutory provisions be construed
together and the Revised Code be read as an interrelated body of law.’ ” Id. at
¶ 24, quoting State v. Moaning, 76 Ohio St.3d 126, 128, 666 N.E.2d 1115 (1996).
R.C. 1.51 provides that when statutory provisions are in conflict, “they shall be
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construed, if possible, so that effect is given to both.” And when construing a
statute, our paramount concern is “the legislative intent in the statute’s enactment,
and to discern this intent, we read words and phrases in context according to the
rules of grammar and common usage.” Wilson v. Kasich, 134 Ohio St.3d 221,
2012-Ohio-5367, 981 N.E.2d 814, ¶ 13.
{¶ 22} There is no conflict between R.C. 2744.02(A) and R.C.
4765.49(B). R.C. 2744.02(A)(1) establishes a general grant of immunity to
political subdivisions, but R.C. 2744.02(B)(5) creates an exception to that
immunity “when civil liability is expressly imposed upon the political subdivision
by a section of the Revised Code.” R.C. 4765.49(B) in turn provides that a
political subdivision is not liable in damages for emergency medical services
provided by its first responders “unless the services are provided in a manner that
constitutes willful or wanton misconduct.”
{¶ 23} After considering the plain meaning and reviewing the history of
these statutes, it is manifest that the legislature intended R.C. 4765.49(B) to
expressly impose liability on political subdivisions within the meaning of R.C.
2744.02(B)(5) by providing an exception to the immunity of political subdivisions
when emergency medical services are provided in a manner that constitutes
willful or wanton misconduct.
Conclusion
{¶ 24} A political subdivision is not liable for injury arising out of actions
taken by first responders in the course of providing emergency medical services,
unless those services are provided in a manner that constitutes willful or wanton
misconduct. Here, the complaint alleges that city of Akron medical-emergency
personnel wantonly caused injuries to the Riffles and their unborn child, and it
therefore states a claim for which relief may be granted. Accordingly, the
judgment of the court of appeals is affirmed.
Judgment affirmed.
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O’CONNOR, C.J., and PFEIFER, LANZINGER, KENNEDY, FRENCH, and
O’NEILL, JJ., concur.
__________________
Kohnen & Patton, L.L.P., Ann Ruley Combs, and Rebecca Cull, for
appellees.
Cheri B. Cunningham, Akron Director of Law, and John Christopher
Reece and Michael J. Defibaugh, Assistant Directors of Law, for appellant.
Steven M. Goldberg Co., L.P.A., and J. Michael Goldberg, urging
affirmance for amicus curiae Ohio Association for Justice.
Ice Miller, L.L.P., and Stephen L. Byron, Stephen J. Smith, and Chris W.
Michael; and John Gotherman, urging reversal for amicus curiae Ohio Municipal
League.
______________________
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