KIANTE WILLIAMS v. ROBERT J. STEFKA, JR., ET AL.
No. 96145
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
February 2, 2012
[Cite as Williams v. Stefka, 2012-Ohio-353.]
BEFORE: E. Gallagher, J., Kilbane, P.J., and Stewart, J.
JOURNAL ENTRY AND OPINION; Civil Appeal from the Cuyahoga County Common Pleas Court, Case Nos. CV-571438 and CV-592818; RELEASED AND JOURNALIZED: February 2, 2012; JUDGMENT: REVERSED AND REMANDED
Shaun H. Kedir
Seaman Garson, LLC
1600 Rockefeller Building
614 Superior Avenue, N.W.
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEES
Robert J. Stefka
Beverly A. Adams
Davis & Young
1200 Fifth Third Center
600 Superior Avenue, East
Cleveland, Ohio 44114-2654
City of Cleveland
Barbara A. Langhenry
Director of Law
Linda M. Applebaum
Assistant Director of Law
City of Cleveland
601 Lakeside Ave., Room 106
Cleveland, Ohio 44114-1077
David M. Douglass
Sean F. Berney
Douglass & Associates Co., LPA
4725 Grayton Road
Cleveland, Ohio 44135
{¶ 1} Appellant, Kiante Williams, appeals from the judgment of the Cuyahoga County Court of Common Pleas granting summary judgment in favor of appellee city of Cleveland (“the City“) on the basis of governmental immunity pursuant to
{¶ 2} This case arises out of an automobile accident involving a vehicle driven by Stefka and a city of Cleveland ambulance in which appellant was a passenger. On the evening of April 26, 2005, appellant called for an ambulancе because she was experiencing labor pains. A city of Cleveland ambulance, driven by city of Cleveland Emergency Medical Services employee, Glenn Burks, responded and began the transport of appellant to Metrohealth Medical Center (“MetroHealth“).
{¶ 3} The accident occurred at the intersection of Union Avenue and East 75th Street in Cleveland, Ohio. The city‘s ambulance was proceeding westbound on Union Avenue prior to the accident. Burks testified that he activated both his lights and siren upon departing with appellant and never turned off either as the ambulance was en route to MetroHealth. Appellant testified that the ambulance‘s lights were activated during the trip but the siren was not.
{¶ 5} As the ambulance proceeded down Union, Burks did not see any other vehicles on the street. Burks testified that it was dark as he approached the intersection of Union Avenue and East 75th Street and that he was able to clearly see traffic lights and approaching vehicles. The police report from the accident indicates that Burks approached a red light at the intersection. Stefka was driving a 2000 Jeep Cherokee northbound on East 75th approaching the intersection at Union Avenue and had a green light. Burks testified that as he traveled down Union approaching the intersection he looked in both directions down East 75th and saw no vehicles approaching. Burks did not see Stеfka‘s vehicle until he was halfway through the intersection at which point they collided. Stefka similarly testified that he did not see the ambulance until he was in the middle of the intersection.
{¶ 6} The police report from the accident indicates that a “view obstruction,”
{¶ 7} The City filed a civil suit against Stefka on September 1, 2005 seeking to recover for property damage stemming from the accident. (CV-571438.) Appellant filed a sepаrate civil suit against both the City and Stefka for personal injuries resulting from the accident. (CV-592818.) Appellant‘s complaint alleged that (1) the City was negligent in the operation of its ambulance and (2) Stefka was negligent in the operation of his vehicle. The City and Stefka filed cross-claims against each other for indemnity and contribution based on appellant‘s claims. The two cases were consolidated and the City filed а motion for summary judgment on February 8, 2007, seeking immunity from appellant‘s negligence claim and Stefka‘s claims for indemnity and contribution. On November 9, 2010, the trial court granted the City‘s motion for summary judgment against both appellant and Stefka.
{¶ 8} The case proceeded to a jury trial on the claims of both appellant and the City against Stefka and the jury returned verdicts in favor of Stefka. Appellant brought the present appeаl asserting the three assignments of error in the appendix to this opinion.
The trial court erred in granting summary judgment for the Defendant City of Cleveland because [appellant‘s] claims are not barred by
R.C. 2744 and genuine issues of material fact exists [sic] which may only be properly evaluated by a jury.
{¶ 10} Our review of a trial court‘s grant of summary judgment is de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Pursuant to
{¶ 11} In Greene Cty. Agricultural Soc. v. Liming, 89 Ohio St.3d 551, 2000-Ohio-486, 733 N.E.2d 1141, the Ohio Supreme Court set out the standard for sovereign immunity.
Ohio Rev.Code Ann. Ch. 2744 sets out the method of analysis, which can be viewed as involving three tiers, for determining a political subdivision‘s immunity from liability. First,Ohio Rev.Code Ann. §2744.02(A)(1) setsout a general rule that political subdivisions are not liable in damages. In setting out this rule, §2744.02(A)(1) classifies the functions of political subdivisions into governmental and proprietary functions and states that the general rule of immunity is not absolute, but is limited by the provisions ofOhio Rev.Code Ann. §2744.02(B) , which details when a political subdivision is not immune. Thus, the relevant point of analysis (the second tier) then becomes whether any of the exceptions in§2744.02(B) apply. Furthermore, if any of§2744.02(B) ‘s exceptions are found to apply, a consideration of the application ofOhio Rev.Code Ann. §2744.03 becomes relevant, as the third tier of analysis. Id. at 556-557, 733 N.E.2d 1141.
{¶ 12}
{¶ 13}
(B) Subject to sections
2744.03 and2744.05 of the Revised Code, a political subdivision is liable in damages in a civil action for injury, death, or loss to person or property allegedly caused by an act or omission of the political subdivision or of any of its employees in connection with a governmental or proprietary function, as follows: (1) Except as othеrwise provided in this division, political subdivisions are liable for injury, death, or loss to person or property caused by the negligent operation of any motor vehicle by their employees when the employees are engaged within the scope of their employment and authority. The following are full defenses to that liability: * * * (c) A member of an emergency medical service owned or operated by a рolitical subdivision was operating a motor vehicle while responding to or completing a call for emergency medical care or treatment, the member was holding a valid commercial driver‘s license issued pursuant toChapter 4506 or a driver‘s license issued pursuant toChapter 4507 of the Revised Code, the operation of the vehicle did not constitute willful or wanton misconduct, and the operation complies with the precautions of section4511.03 of the Revised Code.
R.C. 2744.02(B)(1)(c) provides a complete defense to a city for the negligent operation of an EMS motor vehicle if three criteria are met: (1) the employee, validly licensed to drive, is operating the vehicle in response to an emergency call; (2) the operation of that vehicle did not constitute willful or wanton misconduct; and (3) the operation complies withR.C. 4511.03 . Harris v. Kennedy, 116 Ohio App.3d 687, 690, 689 N.E.2d 53 (1996).
{¶ 15} Appellant first argues that the trial court erred in granting summary judgment because genuine issues of material fact exist in regard to whether Mr. Burks‘s conduct qualifies as willful or wanton misconduct.
“Wanton misconduct” has been defined as “the failure to exercise any care toward one to whom a duty of care is owed when the failure occurs under circumstances for which the probability of harm is great and when the probability of harm is known to the tortfeasor.” “Willful misconduct” is characterized 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 wrongful acts with knowledge or appreciation of the likelihood of resulting injury.” Perlberg v. Cleveland, 8th Dist. No. 91913, 2009-Ohio-1788, 2009 WL 1019883, at ¶ 21, quoting Sparks v. Cleveland, 8th Dist. No. 81715, 2003-Ohio-1172, 2003 WL 1090703.
{¶ 16} In the case sub judice, the reсord reveals no facts from which reasonable minds could conclude that Mr. Burks‘s operation of the ambulance constituted willful or wanton misconduct. Furthermore, as the City noted in its motion for summary judgment, appellant failed to allege willful or wanton misconduct in her complaint and failed to move to amend her complaints or move under
{¶ 18}
(A) The driver of any emergency vehicle or public safety vehicle, when responding to an emergency call, upon approaching a red or stop signal or any stop sign shall slow down as necessary for safety to traffic, but may proceed cautiously past such red or stop sign or signal with due regard for the safety of all persons using the street or highway.
{¶ 19} We have previously considered an EMS ambulance driver‘s compliance with
{¶ 20} In Zivich v. Northfield, 9th Dist. No. 24836, 2010-Ohio-1039, 2010 WL 935792, the Ninth District Court of Appeals upheld a trial court‘s denial of the village‘s
{¶ 21} Finally, in Perlberg, we considered a case involving an ambulance‘s intersection collision where the plaintiff asserted that a wall presented a view obstruction which prevented the plaintiff from seeing the ambulance prior tо the accident. We rejected the plaintiff‘s contention that the ambulance driver failed to comply with
[the ambulance driver] stated that his lights and sirens were activated; he honked as he proceeded through the intersection; he was traveling at approximately 15 m.p.h. through the intersection, even though the posted speed limit was 35 m.p.h.; and he did not see any traffic approaching * * *.
{¶ 22} We find the facts of thе case sub judice to be distinguishable from the facts presented to this court in Perlberg. Both cases involve view obstructions separating the vehicles. However, unlike the ambulance driver in Perlberg, there is no indication in the present record that Burks slowed significantly or sounded the horn upon approaching the intersection. Although the police report indicates that Burks slowed prior to entering the intersection, Burks‘s own depositiоn testimony provides no details of when or how much Burks slowed down prior to entering the subject intersection. In fact, the City itself incorrectly restated Burks‘s deposition testimony in its motion for summary judgment, arguing that Burks slowed to 30 to 40 m.p.h. at the intersection. Burks‘s deposition testimony provides no such details.
{¶ 23} Based on the view obstruction noted in the police report, the fact that both drivers testified that they did not see the other until the point of collision in the intersection and the unclear speed of the ambulance as it entered the intersection, we find that a genuine issue of material fact exists as to whether Burks slowed down as necessary for safety to traffic under the present circumstances. On the record before us, reasonable minds could conclude that the accident was the product of the car lot view obstruction and Mr. Burks failed to comply with
The trial court erred in overruling objections to Defendant Stefka introducing evidence, testimony, commentary, and arguments during the course of trial disputing whether the City of Cleveland‘s EMS driver, Mr. Burks, complied with
R.C. 4511.03 , after previously finding as a matter of law that Mr. Burks complied withR.C. 4511.03 .
{¶ 25} Appellant argues that the trial court erred in allowing Stefka to relitigate the issue of the City‘s compliance with
{¶ 26} Based on our holding above we find appellant‘s third assignment of error to bе moot.
{¶ 27} The judgment of the trial court is reversed, and this cause is remanded for further proceedings consistent with this opinion.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said 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.
EILEEN A. GALLAGHER, JUDGE
MARY EILEEN KILBANE, P.J., CONCURS;
MELODY J. STEWART, J., DISSENTS WITH SEPARATE OPINION
MELODY J. STEWART, J., DISSENTING:
{¶ 28} The key question on whether the city was immune from suit was whether Burks, the ambulance driver, slowed down as necessary for safety to traffic and proceeded through the red stop signal with due regard for the safety of others using the street.
{¶ 29} As noted by the majority, the city offered uncоntradicted proof that a GPS tracking system showed that the ambulance was traveling 43 m.p.h. just ten seconds
{¶ 30} Williams‘s testimony could only lead to the conclusion that, consistent with Burks‘s testimony, the ambulance had slowed down when it entered the intersection. While it is true that Burks could not give the precise speed he was traveling at the timе of the accident, the city‘s contention that Burks was driving between 30 and 40 m.p.h. is certainly reasonable given that the ambulance was traveling 43 m.p.h. some ten seconds before the impact. By slowing from 43 m.p.h. before the impact, Burks was no doubt traveling between 30 and 40 m.p.h. at the time of the accident, so he fully complied with
{¶ 31} Citing to a police report of an “obstruction,” the majority suggests that because neither driver saw the other as they entered the intersection, their respective views must have been impeded by this obstruction, thus creating a question of whether Burks complied with
Appendix
Assignment of Error No. 1:
The trial court erred in granting summary judgment for the Defendant City of Cleveland because Plaintiff Kiante Williams‘s claims are not barred by
R.C. 2744 and genuine issues of material fact exists which may only be properly evaluated by a jury.
Assignment of Error No. 2:
The trial court erred in overruling objections to Defendant Stefka introducing evidence, testimony, commentary, and arguments during the course of trial disputing whether the City of Cleveland‘s EMS driver, Mr. Burks, complied with
R.C. 4511.03 , after previously finding as a matter of law that Mr. Burks complied withR.C. 4511.03 .
Assignment of Error No. 3:
The trial court erred in denying Plaintiff‘s Proposed Jury Instruction 10 and objections to [Defendant] Stefka‘s jury instructions 9, and in allowing the jury to decide whether the City of Cleveland EMS driver, Mr. Burks,
complied with R.C. 4511.03 (slowed down as necessary and drove with due regard for the safety of all persons using the street), after previously finding as a matter of law that Mr. Burks complied withR.C. 4511.03 .