2019 Ohio 2889
Ohio Ct. App.2019Background
- In March 2016 a Blue Ash fire engine driven by Lt. Louis Ernstes, with firefighter Michael Helms as copilot, responded to an emergency and entered the Kenwood Rd./Glendale-Milford/Pfeiffer Rd. intersection.
- Firetruck video (stipulated by the parties) shows lights/sirens, horn blasts, the truck slowed to ~3 mph (possibly stopped), the driver looked both ways (including twice to the right toward Pitzer) and then proceeded; Pitzer’s eastbound vehicle struck the front-right of the truck.
- Kali Pitzer suffered serious injuries (including memory loss) and sued the city and Lt. Ernstes; she sought to plead facts to overcome statutory sovereign immunity.
- Defendants moved for summary judgment based on R.C. 2744 immunity; the trial court granted summary judgment for the city and Ernstes and denied Pitzer’s motion to amend to add Helms.
- On appeal, the court reviewed de novo whether plaintiffs produced evidence of willful/wanton or reckless conduct sufficient to defeat municipal and individual immunity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the city’s statutory immunity (R.C. 2744.02(B)(1)(b)) is overcome by willful or wanton misconduct | Pitzer argued the firetruck operator violated department policy and acted recklessly/wrongful enough to pierce immunity | City argued responses to emergency are covered by the statute unless conduct was willful or wanton; video shows careful operation | Held: No willful or wanton conduct; immunity for the city applies and summary judgment affirmed |
| Whether Lt. Ernstes is personally liable despite R.C. 2744.03(A)(6) (wanton/reckless, bad faith, malicious purpose) | Pitzer argued Ernstes was reckless (policy violation, failure to fully stop) and therefore personally liable | Ernstes argued he acted within scope, used lights/sirens/horn, slowed/looked before proceeding, so conduct was not reckless/wanton | Held: No evidence of recklessness or wantonness; Ernstes entitled to immunity and summary judgment affirmed |
| Whether violation of departmental policy alone establishes recklessness/wantonness | Pitzer relied on policy requiring complete stop when using center/oncoming lanes before controlled intersections | Defendants argued policy violation is not per se reckless or wanton and the video shows compliance with safety precautions | Held: Policy violation not per se reckless/wanton; evidence shows precautions were taken, so policy breach insufficient |
| Whether the trial court abused discretion by denying leave to amend to add Helms | Pitzer sought to add Helms after discovery and after summary-judgment motion, claiming duty to assist | Defendants argued untimely amendment and futility because Helms would have same immunity and plaintiffs offered no new nonconclusory facts | Held: Denial affirmed as untimely and futile; amendment would not overcome immunity |
Key Cases Cited
- Comer v. Risko, 833 N.E.2d 712 (Ohio 2005) (standard of review for summary judgment and construing evidence favorably to nonmoving party)
- Anderson v. Massillon, 938 N.E.2d 266 (Ohio 2010) (distinguishes wanton and reckless conduct; defines wantonness and recklessness)
- Mashburn v. Dutcher, 14 N.E.3d 383 (Ohio App. 2012) (firefighter actions en route to emergency not reckless when precautions taken)