TAMMY M. LYONS, INDIVIDUALLY, ETC., ET AL. v. TEAMHEALTH MIDWEST CLEVELAND, ET AL.
No. 96336
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
October 27, 2011
[Cite as Lyons v. Teamhealth Midwest Cleveland, 2011-Ohio-5501.]
Sweeney, J., Blackmon, P.J., and E. Gallagher, J.
JOURNAL ENTRY AND OPINION; Civil Appeal from the Cuyahoga County Court of Common Pleas, Case No. CV-725903
ATTORNEYS FOR APPELLANTS
John T. McLandrich, Esq.
Frank H. Scialdone, Esq.
Mazanec, Raskin & Ryder Co., L.P.A.
100 Franklin‘s Row
34305 Solon Road
Solon, Ohio 44139
ATTORNEYS FOR APPELLEES
James M. Kelley, III, Esq.
Elk & Elk Co., L.P.A.
6110 Parkland Blvd.
Mayfield Heights, Ohio 44124
Paul W. Flowers, Esq.
Terminal Tower, 35th Floor
50 Public Square
Cleveland, Ohio 44113
Jonathan W. Philipp, Esq.
5005 Rockside Road, Suite 600
Independence, Ohio 44131
Christopher J. Baronzzi, Esq.
Shirley J. Christian, Esq.
Harrington, Hoppe & Mitchell, Ltd.
2235 E. Pershing Street, Suite A
Salem, Ohio 44460
Stacy A. Ragon Delgros, Esq.
Roetzel & Andress, L.P.A.
222 South Main Street
Akron, Ohio 44308
(Continued)
Timothy A. Spirko, Esq.
Buckingham, Doolittle & Burroughs
1375 East Ninth Street, Suite 1700
Cleveland, Ohio 44114
JAMES J. SWEENEY, J.:
{¶ 1} Defendants-appellants, Columbiana County, Matthew Jones (“Jones“), and Crystal Sickelsmith (“Sickelsmith“), appeal the trial court‘s denial of their motion for summary judgment seeking dismissal of plaintiffs-appellee‘s, Tammy M. Lyons, claims against them pursuant to the immunity conferred by
{¶ 2} For the reasons that follow, we affirm in part and reverse in part and remand for further proceedings. For purposes of summary judgment, we must construe the facts in the light most favorable to the non-moving party, appellee.
{¶ 3} On November 14, 2008, eight year old Tyler J. Miller (“decedent“) died after suffering breathing problems and a fever that led to cardiac arrest. Appellee Lyons is his mother. Lyons and decedent were living in an apartment in Lisbon, Ohio. On the evening of November 13, 2008, decedent was sleeping in Lyons‘s bed due to an on-going illness. At 5:16 a.m. on November 14, 2008, Lyons called for help using her cellular phone. Defendant Jones, a dispatcher employed by the Columbiana County Sheriff‘s department, received the call on the non-emergency line.2 At that time Jones had been working as a dispatcher for about two months. His training involved reviewing the policy manual but most of it was hands on, watching the other dispatchers. Jones said he received most of his training from defendant Sickelsmith who was on the calls with him the first few weeks.
{¶ 5} Lyons requested ambulance service to her residence. Jones obtained the address of 6181 Allen Drive and was told it was off Lisbon-Canfield Road. Jones testified that he grew up in Columbiana County but was not familiar with the streets in Lisbon. Columbiana County did not have an ambulance service and contracted with private companies, including defendant KLG, to respond to emergency calls in the jurisdiction. Jones said it was his choice which of two ambulance services to contact to respond to Lyons‘s call. He decided to contact KLG. According to Jones, he was not able to directly connect Lyons to KLG and thought it would be faster if he just relayed the information to KLG himself. Jones called KLG within a minute. He provided the KLG dispatcher with the correct house number and street address, he provided the cross roads of Lisbon-Canfield Road, and he provided Lyons‘s callback number. KLG had squads located in Lisbon and Salem. Jones did not recall if the KLG dispatcher asked him, but he did advise her that he thought the Allen Drive address was closer to Perry Township.
{¶ 7} “KLG: That‘s 6181 Allen Drive. And that‘s Lisbon?
{¶ 8} “Sheriff‘s office: It‘s off of Lisbon/Canfield Road. I guess it‘s closer to Perry Township.”
{¶ 9} “KLG: So Salem. Off of Lisbon/Canfield you said?
{¶ 10} “Sheriff‘s office: Yeah.
{¶ 11} “KLG: And do you have a callback number?
{¶ 12} “Sheriff‘s office: Yeah. [Phone number is provided].”
{¶ 14} All of the dispatchers testified that you should not guess at any information being used to respond in an emergency situation.
{¶ 15} Sickelsmith became involved when she placed a separate call to KLG regarding another medical emergency on McSwiggen Road. During that call, she overheard KLG‘s Salem squad in the background struggling to locate the Allen Drive address. Sickelsmith took it upon herself to look it up on the paper map in her office and discovered that it was in Lisbon, Ohio.3 Sickelsmith called KLG to provide this information at 5:31 a.m. In the meantime, she tried to find other first responders in the Lisbon area without success. Around the same time, Fidoe‘s supervisor called her cell phone and advised her that there was an Allen Drive in Lisbon, Ohio.4 Fidoe said she typically used Google maps to locate addresses but could not recall what she did in response to this emergency.
{¶ 18} “II. The lower court erred by denying the Appellant Columbiana County‘s Motion for Summary Judgment because the County is immune under
{¶ 19} “III. The lower court erred by denying the Appellant Crystal Sickelsmith‘s Motion for Summary Judgment because she is immune under
{¶ 20} “IV. The lower court erred by denying the Appellant Mathew Jones’ Motion for Summary Judgment because he is immune under
{¶ 21} “A court of appeals must exercise jurisdiction over an appeal of a trial court‘s decision overruling a
{¶ 22} The three-tier analysis that governs the application of sovereign immunity to a political subdivision pursuant to
{¶ 23} “Determining whether a political subdivision is immune from tort liability pursuant to
{¶ 24} “The second tier of the analysis requires a court to determine whether any of the five exceptions to immunity listed in
{¶ 25} “If any of the exceptions to immunity in
{¶ 26} “For the individual employees of political subdivisions, the analysis of immunity differs. Instead of the three-tiered analysis * * *,
{¶ 27} Columbiana County is a political subdivision and both Jones and Sickelsmith were employed as dispatchers in the Sheriff‘s department on November 14, 2008 when Tyler J. Miller suffered respiratory failure and died while awaiting an ambulance transport to the hospital.
{¶ 28} The first point of contention is whether the County‘s act of providing dispatch services in response to calls of medical emergencies involves a governmental or proprietary function. The County asserts it is a governmental function and appellee maintains it is a proprietary function.
{¶ 29}
{¶ 30} “For the purposes of this chapter, the functions of political subdivisions are hereby classified as governmental functions and proprietary functions. Except as provided in division (B) of this section, a political subdivision is not liable in damages in a civil action for injury, death, or loss to person or property allegedly caused by any act or omission of the political subdivision or an employee of the political subdivision in connection with a governmental or proprietary function.” (Emphasis added.)
{¶ 31} Appellee relies on the exception set forth in
{¶ 33} The exception upon which appellee relies pertains only to the performance of proprietary functions and does not apply to the performance of governmental functions.
{¶ 34} In urging us to conclude that the County‘s provision of dispatch services was a proprietary function, appellee suggests that appellants were doing nothing more than forwarding emergency calls to a private ambulance service. She cites to Greene Cty. Agr. Soc. v. Liming, 89 Ohio St.3d 551, 2000-Ohio-486, 733 N.E.2d 1141, and maintains that the analysis depends on whether the particular activity engaged in is the type customarily performed by non-governmental persons. If so, appellee maintains it should deemed a proprietary function. In Greene, the court distinguished the act of holding a county fair (which is a governmental function) from conducting a livestock competition at the fair, which it found had “nothing inherently governmental” about it.
{¶ 35} Appellee frames the function at issue in this case as being one of “relaying * * * Plaintiff‘s request for immediate medical assistance to the private ambulance company.” And, appellee believes the County‘s provision of dispatch services should be carved out of the established governmental function that includes “the provision or non-provision of police, fire, emergency medical, ambulance, and rescue services or
{¶ 36} Appellee argues this interpretation is supported by the fact that dispatching services are not specifically designated in the itemized list of governmental functions set forth in
{¶ 37}
{¶ 38} “(C)(1) ‘Governmental function’ means a function of a political subdivision that is specified in division (C)(2) of this section or that satisfies any of the following:
{¶ 39} “(a) A function that is imposed upon the state as an obligation of sovereignty and that is performed by a political subdivision voluntarily or pursuant to legislative requirement;
{¶ 40} “(b) A function that is for the common good of all citizens of the state;
{¶ 41} “(c) A function that promotes or preserves the public peace, health, safety, or welfare; that involves activities that are not engaged in or not customarily engaged in by nongovernmental persons; and that is not specified in division (G)(2) of this section as a proprietary function.” (Emphasis added.)
{¶ 42} According to the express terms of the statute, conduct can constitute a governmental function despite the fact that it is not specifically enumerated in
{¶ 43} While dispatching services is not explicitly designated as either a proprietary or governmental function,
{¶ 44} “(a) The provision or nonprovision of police, fire, emergency medical, ambulance, and rescue services or protection.”
{¶ 45} It is undisputed that if the County provided its own ambulance service, the dispatcher‘s involvement in facilitating that service would be considered a governmental function. In this case, however, we are examining a situation where the County has contracted with private entities to provide ambulance services that will incidentally profit from the provision of ambulance services in the jurisdiction. Our analysis focuses on whether the County can maintain their statutory immunity for retaining limited involvement in communicating the calls for emergency help to the private entity through the provision of dispatch services.
{¶ 46} This court has previously held that ”
{¶ 47} The Columbiana County Sheriff Department‘s dispatch service, which aids in responding to emergency medical calls, is an integral part of the provision or nonprovision of police, fire, emergency medical, ambulance and rescue services or protection that is a clearly delineated governmental function.
{¶ 48} The first tier of the analysis is satisfied.
{¶ 49} Because the County dispatchers were performing a governmental function and the sole exception to immunity under
{¶ 50} In the remaining assignments of error, appellants contend that the trial court erred by denying Jones and Sickelsmith summary judgment. Jones and Sickelsmith
{¶ 51} “(A) In a civil action brought against a political subdivision or an employee of a political subdivision to recover damages for injury, death, or loss to person or property allegedly caused by any act or omission in connection with a governmental or proprietary function, the following defenses or immunities may be asserted to establish nonliability:
{¶ 52} “* * *
{¶ 53} “(6) In addition to any immunity or defense referred to in division (A)(7) of this section and in circumstances not covered by that division or sections 3314.07 and 3746.24 of the Revised Code, the employee is immune from liability unless one of the following applies:
{¶ 54} “* * *
{¶ 55} “(b) The employee‘s acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner.”
{¶ 56} Although the law provides that political subdivision employees may be sued individually as set forth above, the political subdivision remains obligated to indemnify and defend its employees pursuant to the terms of
{¶ 58} In O‘Toole v. Denihan, 118 Ohio St.3d 374, 2008-Ohio-2574, 889 N.E.2d 505, the Ohio Supreme Court addressed what constitutes reckless conduct for purposes of statutory political subdivision immunity:
{¶ 59} “[A]n actor‘s conduct ‘is in reckless disregard of the safety of others if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.’ * * * Distilled to its essense, and in the context of
{¶ 60} “Recklessness, therefore, necessarily requires something more than mere negligence. * * * In fact, ‘the actor must be conscious that his conduct will in all probability result in injury.‘” Id. at ¶ 74; see, also, Rankin v. Cuyahoga Cty. Dept. of Children & Family Servs., 118 Ohio St.3d 392, 2008-Ohio-2567, ¶ 37. Unless the individual‘s conduct does not demonstrate a disposition to perversity as a matter of law, the determination of recklessness is within the province of the jury. O‘Toole, 2008-Ohio-2574, ¶ 75.
{¶ 62} “In contrast, ‘willful misconduct’ involves a more positive mental state prompting the injurious act than wanton misconduct, but the intention relates to the misconduct, not the result. Id. Consequently, ‘willful misconduct’ is defined as: ‘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 purposely doing some wrongful acts with knowledge or appreciation of the likelihood of resulting injury.‘” Fogle v. Village of Bentleyville, Cuyahoga App. No. 88375, 2008-Ohio-3660, ¶ 47, quoting Whitfield v. Dayton, 167 Ohio App.3d 172, 2006-Ohio-2917, 854 N.E.2d 532, quoting Brockman, supra.
{¶ 63} Construing the evidence in a light most favorable to appellee, there is no evidence from which a reasonable mind could conclude that Sickelsmith‘s actions were either wanton or reckless. Appellee asserts that “questions exist * * * as to whether [Sickelsmith] did all she could to alert KLG of the Plaintiff‘s true location and ensure that the closest available ambulance was immediately dispatched.” Appellee also asserts that
{¶ 64} However, reasonable minds could reach differing conclusions as to whether Jones‘s acts or omissions qualified as being reckless. Jones said he was trained to get the address of the emergency that included the city. Jones admittedly did not obtain the city from the caller. When the KLG dispatcher inquired if it was located in Lisbon, Jones said, “[i]t‘s off of Lisbon/Canfield Road. I guess it‘s closer to Perry Township.” Although that was the proper cross road (which according to the record is located in Lisbon) and Jones did provide KLG with the correct call back number for appellee, his guess that it was
Judgment affirmed in part and reversed in part.
It is ordered that appellees and appellants split the costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the 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.
JAMES J. SWEENEY, JUDGE
PATRICIA ANN BLACKMON, P.J., and
EILEEN A. GALLAGHER, J., CONCUR