CHARLES P. KEARNS, SR., Plaintiff-Appellee, v. MEIGS COUNTY EMERGENCY MEDICAL SERVICES, et al., Defendants-Appellants. / ELEANOR F. KEARNS, Plaintiff-Appellee, v. MEIGS COUNTY EMERGENCY MEDICAL SERVICES (EMS), et al., Defendants-Appellants.
Case No. 16CA8 | Case No. 16CA9
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT GALLIA COUNTY
RELEASED 04/05/2017
2017-Ohio-1354
Hoover, J.
Mark Landes and Aaron M. Glasgow, Isaac Wiles Burkholder & Teetor, LLC, Columbus, Ohio, for defendants-appellants.
Jeffrey L. Finley, Gallipolis, Ohio, for plaintiffs-appellees.
I. Facts and Procedural Posture
{¶ 2} This case arises out of an automobile collision involving a vehicle driven by Charles Kearns and occupied by Eleanor Kearns and an ambulance operated by Meigs County EMS/Meigs County Commissioners and driven by Lyons. On the evening of March 23, 2013, Meigs County EMS received a 911 call from the Holzer Clinic urgent care facility in Pomeroy, Ohio. Holzer Clinic requested that an ambulance be sent to its facility to treat a patient experiencing a medical emergency, and to transport the patient to the Holzer Medical Center in
{¶ 3} Upon arriving at Holzer Clinic, Lyons and Johnson spoke with the staff about the patient‘s condition, and within five minutes the patient was loaded into the ambulance. Lyons and Johnson determined that the patient was not in such critical condition that it was necessary to proceed to the Holzer Medical Center with lights and sirens activated. Lyons then drove the ambulance towards Holzer Medical Center to take the patient to the emergency room for medical care.
{¶ 4} The collision occurred while en route to Holzer Medical Center on State Route 7 in the Village of Cheshire, Ohio.3 The ambulance was proceeding southbound on State Route 7 prior to the collision. While travelling in the southbound direction, the ambulance drove left of center and struck the vehicle that the Kearns were riding in the northbound lane. At his deposition, Lyons testified that just before the collision, the two vehicles in front of him were playing a “brake check” game, erratically slowing down and speeding up. However, Lyons did not report any such “brake check” game to the highway patrol when asked how the collision occurred. Lyons could not recall the moments before the collision, saying he “lost everything“, but recalled that when he “got [his] senses back“, the Kearns’ vehicle “was there” and he was completely in the northbound lane of travel. He tried to avoid the collision but was unable to do so. Lyons explicitly denied that he was attempting to pass the vehicle in front of him at the time
{¶ 5} Charles Kearns recalls a different version of events. Charles Kearns testified that he observed a vehicle in front of the ambulance traveling south on State Route 7. According to Charles Kearns, Lyons accelerated and drove the ambulance completely into the northbound lane and passed the vehicle in front of him. After passing the vehicle in front of him, Lyons collided with the Kearns’ vehicle head-on. Charles Kearns indicated that he had no time to avoid the collision.
{¶ 6} Michelle Folmer was driving a 2003 Honda Odyssey minivan and was following behind the Kearns’ vehicle at the time of the collision. In fact, the force of the collision caused the Kearns’ vehicle to spin around and be pushed backward into the vehicle driven by Folmer. Folmer averred in an affidavit filed during the summary judgment proceedings that at the intersection of West Poplar Street, Second Street, and State Route 7, she witnessed the ambulance driven by Lyons cross the left centerline into the northbound lane in an apparent attempt to pass the vehicle in front of him. She further averred that the ambulance was in the northbound lane of State Route 7 when it collided head-on with the Kearns’ vehicle. She also confirmed that the ambulance did not have its emergency lights and sirens on at the time of the collision.
{¶ 7} The roadway where the collision occurred is a two-lane road with one lane of traffic for each direction. The posted speed limit where the collision occurred is 35 miles per hour. Solid double yellow lines indicating a no passing zone separated the northbound and southbound lanes where the collision occurred.
{¶ 9} Lyons indicated that he had not received formal training on: (1) the use of the lights and siren, (2) driving and operating the ambulance, and (3) when it would be appropriate to exceed the speed limit. However, he indicated that he did participate in ride-along training with more experienced employees; and had been a full-time employee with Meigs County EMS since 1995.
{¶ 10} The summary judgment evidence also included an affidavit and report from the Kearns’ accident reconstruction expert. According to the accident reconstructionist, Lyons was traveling at a minimum speed of between 55-58 miles per hour at the time of the collision with the Kearns’ vehicle, and was approaching an intersection in a posted 35 miles per hour speed zone. The reconstructionist also opined that Lyons‘s movement of the ambulance from the south lane of State Route 7 to the north lane was not a gradual movement, but rather an abrupt lane change; and was done either in an attempt to pass the vehicle in front of it, or as a swerving maneuver to the left to avoid a rear end collision with the vehicle in front of it.
{¶ 11} As previously mentioned, Charles and Eleanor Kearns filed separate civil suits against the appellants for personal injuries resulting from the collision. The complaints alleged that (1) Lyons was negligent in the operation of the ambulance; and (2) Lyons‘s actions, conduct, and omissions constituted willful and wanton misconduct. Finally, Charles and Eleanor Kearns alleged that Meigs County EMS and the Meigs County Commissioners were vicariously liable
{¶ 12} On June 6, 2016, the trial court issued its judgment on the pending summary judgment motions. The trial court denied the Kearns’ motion in its entirety. As to the appellants’ motion, the trial court granted summary judgment as to the issue of Lyons‘s conduct being willful and as to the issue of whether Lyons was on an emergency call at the time of the collision. However, the trial court found there to be a genuine issue of material fact as to whether Lyons‘s conduct was “wanton“. Finally, though the parties had addressed the issue of recklessness with respect to Lyons‘s conduct in their competing summary judgment motions, the trial court refused to address the issue on the basis that it was not adequately pleaded in the Kearns’ complaints.
{¶ 13} On June 7, 2016, both Eleanor and Charles Kearns moved to amend their complaints to plead reckless misconduct on the part of Lyons. The trial court granted the motions to amend on June 28, 2016. On June 30, 2016, both Eleanor and Charles Kearns filed amended complaints asserting reckless misconduct on the part of Lyons. On July 1, 2016, the appellants filed their notice of appeal of the June 6, 2016 judgment regarding the summary judgment motions.4 Charles or Eleanor Kearns did not file a cross-appeal as to any portion of the trial court‘s judgment.
{¶ 14} On appeal, the appellants raise the following assignment of error for our review.
Assignment of Error:
The Trial Court erred in finding that a genuine issues (sic) of material fact regarding whether Appellant Alfred W. Lyons acted “wantonly” under
R.C. § 2744.02(B)(1)(a) 5.
III. Law and Analysis
{¶ 15} Appellants contend that the trial court erred by denying their motion for summary judgment for the claims associated with the collision because they are entitled to the defenses and immunities under
A. Standard of Review
{¶ 16} We review the trial court‘s decision on a motion for summary judgment de novo. Smith v. McBride, 130 Ohio St.3d 51, 2011-Ohio-4674, 955 N.E.2d 954, ¶ 12. Accordingly, we afford no deference to the trial court‘s decision and independently review the record and the inferences that can be drawn from it to determine whether summary judgment is appropriate. Harter v. Chillicothe Long-Term Care, Inc., 4th Dist. Ross No. 11CA3277, 2012-Ohio-2464, ¶ 12; Grimes v. Grimes, 4th Dist. Washington No. 08CA35, 2009-Ohio-3126, ¶ 16.
B. Meigs County EMS and Meigs County Commissioners
{¶ 18}
{¶ 19} In the case sub judice, the parties do not dispute that at the time of the collision Lyons was an employee of the Meigs County EMS/Meigs County Commissioners and was operating the ambulance within the scope of his employment. Further, it is undisputed that Lyons was responding to or completing an emergency call at the time of the collision, was a validly
{¶ 20} “Wanton misconduct” has been 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, paragraph three of the syllabus.
{¶ 21} After reviewing the record in the light most favorable to Charles and Eleanor Kearns, we conclude that a genuine issue of material fact remains as to whether Lyons‘s operation of the ambulance constituted wanton misconduct. Here, the accident reconstruction expert indicated that Lyons was exceeding the posted speed limit by at least 20 miles per hour at the time of the collision. This fact is especially concerning because the collision occurred within the limits of the Village of Cheshire, and while approaching an intersection. Lyons was also operating the ambulance without lights and sirens activated, thus providing no warning to fellow travelers. While Lyons denied that he was in the process of passing the vehicle in front of him, both Charles Kearns and Michelle Folmer asserted that he had passed or was in the process of passing the vehicle in front of him in a clearly established no passing zone. Lyons himself indicated that the collision occurred in a no passing zone. Furthermore, Lyons‘s own deposition testimony provides little detail of how he ended up in the opposite lane of travel. Under these facts, reasonable minds could conclude that Lyons‘s operation of the ambulance constituted wanton misconduct. As such, a genuine issue of material fact exists that precludes Meigs County EMS/Meigs County Commissioners from the benefit of the
{¶ 22} The appellants also contend that Lyons is entitled to individual immunity under
{¶ 23} In the case sub judice, we have already determined that a genuine issue of material fact exists as to whether Lyons‘s operation of the ambulance constituted wanton misconduct. Thus, at this time Lyons is not entitled to immunity or summary judgment. The appellants also contend in their appellate brief that Lyons‘s operation of the ambulance did not constitute reckless misconduct. However, because this issue has yet to be decided by the trial court, we will not address it for the first time on appeal. Sickles v. Jackson Cty. Hwy. Dept., 196 Ohio App.3d 703, 2011-Ohio-6102, 965 N.E.2d 330, ¶ 31 (4th Dist.), citing Stratford Chase Apts. v. Columbus, 137 Ohio App.3d 29, 33, 738 N.E.2d 20 (10th Dist.2000) (explaining that the appellate court‘s independent review of a summary judgment decision should not replace the trial court‘s function of initially determining the proprietary of summary judgment).
IV. Conclusion
{¶ 24} Having reviewed the arguments, the briefs, and the record in this consolidated appeal, we find that the trial court did not err in concluding that a genuine issue of material fact
JUDGMENT AFFIRMED.
Harsha, J., dissenting.
{¶ 25} I respectfully dissent from the judgment affirming the denial of appellants’ motion for summary judgment based on political-subdivision immunity and referring the immunity issue to be the jury. I reiterate my position that nowithstanding conflicting signals given by the Supreme Court of Ohio, the issue of immunity presents a question of law properly decided prior to trial on summary judgment, not of a question of fact to be decided by a jury. See Laries v. Athens, 2015-Ohio-2750, 39 N.E.3d 788, ¶ 40-46 (Harsha, J., concurring).
{¶ 26} In Conley v. Shearer, 64 Ohio St.3d 284, 595 N.E.2d 862, the Supreme Court of Ohio rejected a claim that the procedure for filing claims against the state, its officers, and employees violated a plaintiff‘s right to a trial by jury. The court held that “[t]he question of whether [the defendant] is entitled to immunity as a governmental employee is a question of law for which there is no right to trial.” Id at 292, 595 N.E.2d 862. In rejecting the claimed right to a jury trial the court decided that immunity presented purely legal questions. The court did so in pronouncing that ” ‘[w]hether immunity may be invoked is a purely legal issue, properly determined by the court prior to trial * * *, and preferably on a motion for summary judgment.’ ” Id., quoting Roe v. Hamilton Cty. Dept. of Human Serv., 53 Ohio App.3d 120, 126, 560 N.E.2d 238 (1st Dist.1988).
{¶ 27} Consistent with the Supreme Court‘s holding in Conley, 64 Ohio St.3d at 292, 595 N.E.2d 862, we have held that “[i]mmunity issues ordinarily present questions of law that an
{¶ 28} Following Conley the Supreme Court stated in dicta that the issue of whether a political subdivision or its employee was entitled to immunity could potentially raise a genuine issue of material fact precluding summary judgment. See Hubbell v. Xenia, 115 Ohio St.3d 77, 2007-Ohio-4839, 873 N.E.2d 878, ¶ 21; In re Ohio Political Subdivision Immunity Cases, 115 Ohio St.3d 448, 2007-Ohio-5252, 875 N.E.2d 912, ¶ 2. The Supreme Court did not overrule Conley. In addition, the holdings in these cases were restricted to whether the orders appealed constituted final appealable orders. “If the Supreme Court had intended to overrule Conley, and to avoid any confusion on the part of trial and appellate courts, the dicta in Hubbell was not the way to do it. In the absence of more explicit guidance on this matter, I continue to believe Conley is applicable to questions of political-subdivision immunity in a motion for summary judgment. This is so because, like duty, immunity presents a question about the rules of procedure and public policy. Courts decide the rules under which cases are decided, not juries, regardless of whether such a decision requires consideration of the facts.” Laries at ¶ 46 (Harsha, J., concurring).
{¶ 29} Rather than deciding the issue of immunity as a matter of law, the trial court instead decided it raised an issue of fact that should be decided by the jury. Based on Conley, the
It is ordered that the JUDGMENT IS AFFIRMED. Appellants shall pay the costs.
The Court finds that reasonable grounds existed for this appeal.
It is ordered that a special mandate issue out of this Court directing the Gallia County Common Pleas 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.
Abele, J: Concurs in Judgment and Opinion.
Harsha, J.: Dissents with Dissenting Opinion.
For the Court
By: Marie Hoover, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.