Mаureen Koeppen et al., Plaintiffs-Appellees, v. City of Columbus, Division of Fire, Defendant-Appellant.
No. 15AP-56
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
October 27, 2015
2015-Ohio-4463
KLATT, J.
(C.P.C. No. 13CV-9826); (REGULAR CALENDAR)
Richard C. Pfeiffer, Jr., City Attorney, and Michael R. Halloran, for appellant.
APPEAL from the Franklin County Court of Common Pleas
D E C I S I O N
Rendered on October 27, 2015
KLATT, J.
{¶ 1} Defendant-appellant, the City of Columbus, Division of Fire, appeals a judgment of the Franklin County Court of Common Pleas that denied the city‘s motion for summary judgment on the question of public subdivision immunity. For the following reasons, we reverse that judgment.
{¶ 2} On the evening August 6, 2013, plaintiff-appellee, Maureen Koeppen, stopped her BMW 128i convertible at a red light at the intersection of Fifth Avenue and Olentangy River Road.1 The roof of Koeppen‘s convertible was retracted. To Koeppen‘s immediate left, an ambulance was stopped in the left-turn lane.
{¶ 4} Koeppen began frantically waving her hands and yelling, “Stop. Stop. * * * It‘s in my face.” (Koeppen depo., at 11-12.) The person sitting in the passenger seat of the ambulance turned towards her and waved. Koeppen remembers thinking or saying at that point, “No. No. I‘m not waving at you hi. I‘m telling you to stop.” (Koeppen depo., at 11-12.)
{¶ 5} When the light changed to green, the ambulance turned left and drove off. Koeppen drove through the intersection and stopped on the first cross street. Her hair, face, and neck were soaked with the liquid that had come from the ambulance.
{¶ 6} After being hit with the liquid, Koeppen‘s face and chest broke out, and she “gradually started to feel worse and worse.” (Koeppen depo., at 22.) Approximately one week after the incident, Koeppen went to the emergency room of Dublin Methodist Hospital. Koeppen was ultimately diagnosed with aplastic anemia, a condition that happens when a person has too few blood cells.
{¶ 7} On August 30, 2013, Koeppen and her husband, David M. Koeppen, filed suit against the city, alleging claims for negligence and loss of consortium. Through discovery, the Koeppens discovered that an ambulance operated by the Columbus Division of Fire (“CDF“) had driven through the Fifth Avenue and Olentangy River Road intersection at the time and date of the incident. John Endicott and Anthony Klein, who are both CDF paramedics, were assigned to that ambulance on the evening of August 6, 2013.3
{¶ 9} The city appeals the December 30, 2014 judgment, and assigns the following error:
The Trial Court erred when it denied the City‘s motion for summary judgment filed on the basis of immunity pursuant to Chapter 2744 of the Ohio Revised Code.
{¶ 10} A trial court will grant summary judgment under
{¶ 11} When seeking summary judgment on the ground that the nonmoving party cannot prove its case, the moving party bears the initial burden of informing the trial court оf the basis for the motion and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact. Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996). The moving party does not discharge this initial burden under
{¶ 12} Courts employ a three-tier test to determine whether a political subdivision is immune from liability for tort claims under
{¶ 13} When a political subdivision moves for summary judgment on the basis of immunity, the political subdivision bears the burden of showing that it is immune under the first tier of the immunity test. Ohio Bell Telephone Co. v. Columbus, 10th Dist. No. 09AP-113, 2009-Ohio-5126, ¶ 10. The burden then shifts to the plaintiff to set forth evidence that creates a genuine issue of material fact regarding the existence of one of the exceptions to immunity. Id.; Summerville v. Columbus, 10th Dist. No. 04AP-1288, 2005-Ohio-5158, ¶ 17. As we stated in Summerville:
[W]hen sovereign immunity is established by one who has moved for summary judgment, the nonmovant‘s responsive burden, pursuant to
Civ.R. 56(E) , includes the requirement that he or she demonstrate the existence of an applicable exception to sovereign immunity. In order to avoid summary judgment, then, the nonmovant must demonstrate the existence of a genuine issue of fact with respect to the applicability of one of the exceptions set forth inR.C. 2744.02(B) .
{¶ 14} Here, there is no dispute that the city established its immunity under the first tier of the immunity test. Pursuant to
{¶ 15} The Koeppens focus solely the exception found in
{¶ 16} We will address the second basis for liability first. In response to that basis, the city argues that the paramedics’ decision to leave rather than offer assistance does not constitute operation of a vehicle. Thus, the city asserts,
{¶ 17} “[T]he exception to immunity in
{¶ 18} A public employee may perform acts connected to a vehicle that do not involve the driving or moving of the vehicle. In Doe, the Supreme Court of Ohio held that supervision of student passengers was not part of driving or moving a school bus. Id. at syllabus. In a case more analogous to this one, the Ninth District Court of Appeals held that the
{¶ 20} In addition to arguing that the failure to assist is not part of driving or moving the ambulance, the city also argues that the Koeppens presented no evidence that the failure to assist caused Maureen Koeppen injury. Absent this evidence, the city contends, the Koeppens have not created a genuine issue of material fact that precludes summary judgment in the city‘s favor. We agree.
{¶ 21} The
What causes aplastic anemia? – Aplastic anemia is caused by damage to your bone marrow. Some people are born with damaged bone marrow. In older children or adults, many things cаn damage bone marrow, including:
- Certain medicines used to treat arthritis and epilepsy
- Certain chemicals used in industry and farming
- Infections from viruses
- Problems with your body‘s infection fighting system
But for many people, doctors don‘t know the cause of aplastic anemia.
(R. 47, at 3.)
{¶ 22} At best, this evidence might demonstrate that the fluid sprayed on Maureen Koeppen caused her to develop aplastic anemia. However, the evidence does not show
{¶ 23} In sum, we conclude that the Koeppens have not established that the
{¶ 24} Next, the Koeppens assert that the
{¶ 25} To prove negligence, a plaintiff must establish: (1) a duty requiring the defendant to conform to a certain standard of conduct, (2) breach of that duty, (3) a causal connection between the breach and injury, and (4) damages. Cromer v. Children‘s Hosp. Med. Ctr., 142 Ohio St.3d 257, 2015-Ohio-229, ¶ 23. ” ‘Duty, as used in Ohio tort law, refers to the relationship between the plaintiff and the defendant from which arises an obligation on the part of the defendant to exercise due care toward the plaintiff.’ ” Wallace v. Ohio Dept. of Commerce, 96 Ohio St.3d 266, 2002-Ohio-4210, ¶ 23, quoting Commerce & Industry Ins. Co. v. Toledo, 45 Ohio St.3d 96, 98 (1989). The duty elemеnt of negligence may be established by common law, statute, or by the particular circumstances of a given case. Chambers v. St. Mary‘s School, 85 Ohio St.3d 563, 565 (1998). The existence of a duty is a question of law for the court to determine. Wallace at ¶ 22.
{¶ 27} Here, the Koeppens allege that the city violated
{¶ 28} When neither common law nor statute impose a duty, the existence of a duty depends on the foreseeability of the injury. Wallace at ¶ 23; Menifee v. Ohio Welding Prods., Inc., 15 Ohio St.3d 75, 77 (1984). Duty turns on foreseeability because, “[a]s a society, we expect people to exercise reasonable precautions against the risks that a reasonably prudent person would anticipate.” Cromer at ¶ 24. If a reasonable person would not foresee a risk, then we do not expect people to guard аgainst that risk, and, consequently, the law does not impose such a duty on the defendant. Id.; accord Gedeon v. East Ohio Gas Co., 128 Ohio St. 335, 338 (1934) (“No one is bound to take care to prevent consequences which, in the light of human experience, are beyond the range of probability. Only when the injured person comes within the circle of those to whom injury may reasonably be anticipated does the defendant owe him a duty of care.“).
{¶ 29} Usually, the foreseeability of harm depends on the defendant‘s knowledge, as a person cannot guard against risks he does not know about. Menifee at 77. In determining whether an injury was foreseeable, a cоurt may consider “only those circumstances which [the defendant] perceived, or should have perceived,” at the time of
{¶ 30} Here, we must determine whether the city had a duty to guard against the risk that fluid would spray from the ambulance. To do that, we must examine the ambulance‘s repair records. If those records show that the city knew or should have known that the spray would occur, then the city had a duty to undertake reasonable precautions to рrevent it.
{¶ 31} The record contains work orders reflecting repairs performed on the ambulance from January 5, 2011 to September 12, 2013. In 2013, the ambulance underwent repairs in March, May, June, July, and August. In March 2013, mechanics fixed an oil leak. In May 2013, mechanics repaired the air conditioning unit on the ambulance. In June and July 2013, mechanics fixed various lights on the ambulance, removed and replaced the rear leveling valves and dump valve solenoids, and installed a new clutch fan solenoid, fan belt, idler pulley, and belt tensioner.
{¶ 32} On July 28, 2013, the ambulance failed to start. Mechanics determined thаt the “shoreline” used to keep the mobile data computers charged had failed, and consequently, the ambulance‘s battery died. The shoreline was replaced.
{¶ 33} Two days after the August 6, 2013 incident, the city returned the ambulance to the repair shop because it was “running sluggish[l]y” and had “no pick up on acceleration.” (R. 54, exhibit No. 7.) Examination of the engine revealed problems with the injectors and other components. Those problems were serious enough that a new engine was installed.
{¶ 34} Review of the repair records reveals that none of records show that fluid had previously sprayed from the ambulance in the manner Maureen Koeppen described. Thus, there is no prior incident that would have made a second such incident foreseeable.
{¶ 35} The Koeppens point to the ambulance‘s engine as the culprit for the spray. They contend that, based on the repair records, “[i]t should have been clear by July 2013 that something was seriously awry” with the ambulance‘s engine. (Appellee‘s brief, at 22.) Without the assistance of a mechanic to explain how the condition of the engine in July 2013 would affect the ambulance‘s perfоrmance, we have difficulty gauging the validity of this assessment. Nevertheless, for purposes of argument, we will assume that it is true. The question before us, then, is whether a reasonable person would have foreseen that the
{¶ 36} Given the multiple holes in the evidence, we conclude that the Koeppens have not demonstrated that a reasonable person would have foresеen that the ambulance would spray fluid on Maureen Koeppen. Therefore, the city did not owe the Koeppens a duty to guard against such spray.
{¶ 37} Moreover, even if the city had a duty, the Koeppens failed to show what exactly the city did, or did not do, that breached the standard of ordinary care. Where the doctrine of res ipsa loquitur is not involved, the mere happening of an accident or injury is not evidence of negligence. Wise v. Timmons, 64 Ohio St.3d 113, 116 (1992); Keeton, Dobbs, Keeton, & Owen, Prosser and Keeton on the Law of Torts, Section 39, 242 (5th Ed.1984). Rather, ” ‘specific acts or omissions indicating failure on the part оf the defendant to exercise due care must be alleged as the direct and proximate cause of the injury, and the burden is upon the plaintiff to prove the same.’ ” Wise at 116, quoting St. Marys Gas Co. v. Brodbeck, 114 Ohio St. 432 (1926), paragraph one of the syllabus; accord Boles v. Montgomery Ward & Co., 153 Ohio St. 381, 388-89 (1950) (a plaintiff must show precisely “how and why an injury occurred—to develop facts from which it can be determined by the jury that the defendant failed to exercise due care and that such failure was a proximate cause of the injury“).
{¶ 38} Generally, a defendant must “exercise that degree of care and caution that an ordinarily careful and prudent person would exercise under similar circumstances.” Cromer, 142 Ohio St.3d 257, 2015-Ohio-229, аt ¶ 27. Without proof of specific acts or omissions, a factfinder cannot adjudge whether the defendant‘s conduct fell below the standard of care. Dobbs, Hayden, & Bublick, The Law of Torts, Section 168 (2d Ed.2011).
{¶ 39} Here, the Koeppens do not identify the malfunction that caused the spray to emit from the ambulance. Without knowing the malfunction, a factfinder cannot determine what the city could have done, but did not do, to safeguard against the incident here. A factfinder, therefore, cannot decide if the exercise of ordinary care would have corrected the malfunction or not. Consequently, the Koeppens failed to adduce evidence to create a question of fact regarding whether the city breached the standard of ordinary care.
{¶ 40} In sum, we conclude that the Koeppens have not established a genuine issue of material fact as to whether the paramedics were negligent in driving the ambulance. Consequently, the
{¶ 41} As a final matter, we must address the Koeppens’ argument that we should affirm the denial of summary judgment because they have not concluded discovery. When the Koeppens filed their complaint on August 30, 2013, the clerk issued a schedule that set June 6, 2014 as the dispositive motion deadline and June 20, 2014 as the discovery cut-off date. The city moved for summary judgment on the last date possible—June 6, 2014. Less than one week later, the Koeppens filed an unopposed motion to extend the discovery cut-off dаte to September 19, 2014.
{¶ 42} While the motion for an extension was pending, the Koeppens filed their memorandum in opposition to summary judgment. The Koeppens argued that the
{¶ 43} On July 2, 2014, the trial court granted the Koeppens’ motion to extend the discovery cut-off date to September 19, 2014. The Koeppens did not request a subsequent extension. The trial court issued a judgment denying the city‘s motion for summary judgment on December 30, 2014.
{¶ 44} Initially, we must dispel any supposition thаt the Koeppens sought
{¶ 45} Additionally, this case is not like Tucker v. Webb Corp., 4 Ohio St.3d 121 (1983), which the Koeppens rely upon. In Tucker, the defendant moved for summary judgment before the institution of any substantial discovery. The plaintiff noted that fact in his memorandum in opposition, and he stated that he needed more discovery to properly respond to the summary judgment motion. The trial court, without allowing additional time for discovery, granted the defendant summary judgment. The Supreme Court reversed the grant of summary judgment, finding that the plaintiff was allotted insufficient time to discover the essential facts of the case. Id. at 122-23.
{¶ 46} This case differs significantly from Tucker. Here, the Koeppens had an adequate period—approximately ten months even without the extension—in which to engage in discovery. Unlike the parties in Tucker, the parties in this case engaged in meaningful discovery, including the exchange of documents and the deposition of two key witnesses. Also, unlike the defendant in Tucker, the Koeppens never stated that they did
{¶ 47} Essentially, the Koeppens ask this court to afford them time for additional discovery. This is not relief that this court can grant. At the Koeppens’ request, the trial court expanded the deadline for completion of discovery to September 19, 2014. The Koeppens do not allege any error in that decision. The discovery period, therefore, is now over.
{¶ 48} The Koeppens had approximately three months between the discovery cut-off date and the issuance of the trial court‘s judgment in which to move to supplement the record with any evidence gathered before the end of the discovery period. They did not do that. Based on the evidence in the record, the city is entitled to summary judgment.
{¶ 49} For the foregoing reasons, we sustain the city‘s sole assignment of error. We reverse the judgment of the Franklin County Court of Common Pleas, and we remand this cause to that court so that it may enter judgment in the city‘s favor.
Judgment reversed; cause remanded with instructions.
HORTON, J., concurs.
BRUNNER, J., concurs separately.
Brunner, J., concurring separately.
{¶ 50} I concur with the result and reasoning of the majority‘s decision, but I would note further that no evidence in the nature of expert testimony was offered in opposition to summary judgment that could have causally explicated Mrs. Koeppen‘s condition to the liquid alleged to have sprayed her from the ambulance. Nor was there expert testimony offered to show just what fluid could have sprayed from the ambulance, based on its records of repair, which included replacing its engine very soon after this alleged incident. It is not a matter that this incident did not happen. That we reverse is more a matter of not having sufficient evidence in the record to create a genuine issue as to any material fact as to what happened that day and how it created or affected Mrs. Koeppen‘s condition. Without such evidence, based on what evidence is in the record, Mrs. Koeppen‘s claims fail as a matter of law.
{¶ 51} The Koeppens offered a document from Mrs. Koeppen‘s medical records that aplastic anemia may be caused by certain chemiсals used in industry and farming,