Anderson v. Massillon

[Cite as Anderson v. Massillon, 2014-Ohio-2516.]

COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT

ANDERSON, ADM. : JUDGES:
:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee/Cross-Appellant : Hon. William B. Hoffman, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case No. 2013CA00144
:
CITY OF MASSILLON, ET AL. :
:
:
Defendants-Appellants/Cross- : OPINION
Appellees :

CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas, Case No.
2009CV03641

JUDGMENT: AFFIRMED IN PART; REVERSED AND
REMANDED IN PART

DATE OF JUDGMENT ENTRY: June 9, 2014

APPEARANCES:

For Plaintiff-Appellee/Cross-Appellant: For Defendants-Appellants/Cross-
Appellees:
LEE E. PLAKAS
DAVID L. DINGWELL GREGORY A. BECK
JAMES G. MANNOS MEL L. LUTE, JR.
EDMOND J. MACK JAMES F. MATHEWS
220 Market Ave. South, 8th Floor 400 South Main St.
Canton, OH 44702 North Canton, OH 44720

DAVID G. UTLEY
One Cascade Plaza, Suite 800
Akron, OH 44308
Stark County, Case No. 2013CA00144 2

Delaney, J.

{¶1} Plaintiff-Appellee/Cross-Appellant Cynthia Anderson, Administratrix of the

Estates of Ronald E. Anderson and Javarre J. Tate and Defendants-Appellants/Cross-

Appellees City of Massillon, Susan J. Toles, and Rick H. Annen appeal the July 15,

2013 judgment entry of the Stark County Court of Common Pleas. For the reasons that

follow, we affirm in part and reverse and remand in part the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

{¶2} At 8:30 a.m. on May 6, 2008, Tammy Lockey called 9-1-1 to report a car

fire at 1272 Huron Road in Massillon, Ohio. The call was received by the RED Center,

the central dispatch for the City of Massillon and other political subdivisions. Dispatcher

Lynne Martin Joiner received the call. Joiner routed the call to Thomas Thornberry, the

fire dispatcher. Thornberry consulted his computer to dispatch the first available fire

engine in Massillon. Thornberry also inquired of Joiner whether the fire was near a

house.

{¶3} At 8:31 a.m., a tone was sounded in Station 1 of the Massillon Fire

Department for Engine 214, a pumper truck, to respond to the car fire. Rescue 250,

approximately the size of an ambulance and that holds certain rescue equipment, was

also ordered to respond to the car fire. Joiner called Lockey back and inquired whether

the car fire was near a house. Lockey stated the car fire was near a house and Joiner

relayed the information to Thornberry. Thornberry then toned Station 1 at 8:33:03 a.m.

and dispatched the second engine, Engine 211, a 75-foot aerial ladder truck, instead of

Rescue 250.
Stark County, Case No. 2013CA00144 3

{¶4} At 8:33:43 a.m., Engine 214 left Station 1. Engine 214 was driven by

Firefighter Greenwood and commanded by Captain Smith. Engine 214 proceeded down

Erie Street to Walnut Street towards the dispatched location. Engine 214 traveled with

its lights and sirens activated.

{¶5} Captain Rick Annen, the shift commander, directed Rescue 250 to remain

at Station 1 because Engine 211 would instead respond to the car fire. Firefighters

Jason Castile and Ernie Bard sat in the rear-facing passenger seats of Engine 211.

Captain Annen commanded Engine 211 and sat in the commander’s seat on the right

passenger side of Engine 211. Firefighter Susan Toles drove Engine 211. At 8:34:25

a.m., Engine 211 left Station 1 and followed the same route to the dispatched location

as Engine 214.

{¶6} As commander, some of Captain Annen’s responsibilities while reporting

to an emergency call are to consult a map book and to operate the siren and air horn.

On May 6, 2008, when Captain Annen first got into Engine 211 he turned on the

emergency lights and electronic siren that made a high and low pitch. He operated the

air horn manually by a foot pedal. Captain Annen sounded the air horn at intersections.

While in transit to the emergency call, Captain Annen referred to the map book he was

holding.

{¶7} In order to respond to the car fire location, Engine 214 and Engine 211

traveled on Walnut Street. Walnut Street is a narrow, two-lane street traveling east and

west in a residential area. It has a speed limit of 25 miles per hour. Walnut Street

intersects with Johnson Street. Johnson Street travels north and south. The intersection

of Walnut Street and Johnson Street is a three-way stop controlled by stop signs and an
Stark County, Case No. 2013CA00144 4

overhead flashing red light. On the westbound side of Walnut Street, almost directly

across from Johnson Street, is the driveway to a school. On May 6, 2008, a tree, utility

pole, bushes, parked cars, and a house close to the street partially obstructed the view

of the traffic approaching from Johnson Street to Walnut Street.

{¶8} When Engine 211 turned eastbound on to Walnut Street, Captain Annen

could not see Engine 214 ahead of them. Firefighter Toles stated she could see Engine

214 ahead of them.

{¶9} Firefighter Greenwood, the driver of Engine 214, slowed down at Johnson

Street to ensure that the intersection was clear of traffic before proceeding through it. At

that time, Deanna Jackson was stopped on Beckman Street waiting to turn northbound

onto Johnson Street. Jackson saw the first fire truck pass on Walnut Street while she

was waiting to turn onto Johnson Street. Jackson saw Ronald Anderson driving

northbound on Johnson Street. Ronald Anderson was driving his grandson Javarre Tate

to the school located on Walnut Street. Anderson waved to Jackson and she pulled onto

Johnson Street behind Anderson’s vehicle. Jackson stated Anderson was stopped at

the stop sign at Johnson and Walnut Street.

{¶10} As Firefighter Toles drove Engine 211 on Walnut Street, she observed a

school bus pulled to the eastbound side of the road, yielding to the fire truck. Toles

slowed down to make sure there were no children on the street and that the school bus

stop sign was not out. Toles stated that after she determined the school bus was

yielding, she moved left of center because of the presence of a parked car and school

bus on eastbound side of Walnut Street.
Stark County, Case No. 2013CA00144 5

{¶11} Engine 211 approached the Johnson Street intersection traveling at a

speed exceeding 25 miles per hour. Toles stated that she scanned the intersection of

Johnson and Walnut Street to make sure the intersection was clear and she determined

no one was in the intersection.

{¶12} Jackson stated she heard sirens while she was on Johnson Street but she

did not see a second fire truck. Jackson said she saw Anderson drive into the

intersection. She then witnessed Engine 211 drive on the left side of the street and

strike the center of Anderson’s minivan. Captain Annen stated he saw Ronald

Anderson’s minivan slowly roll through the stop sign at Johnson Street to cross Walnut

Street. He yelled to Toles, “He’s not stopping!” Toles stated that as she approached the

intersection, she saw the minivan “shoot out in front” of Engine 211. She did not apply

the brakes because of the jake brake system on Engine 211, but maneuvered the truck

to the left to avoid hitting the minivan and get around. Engine 211 collided with the

minivan, resulting in the deaths of Ronald Anderson and Javarre Tate.

{¶13} Ohio State Highway Patrol Trooper Frederick J. Cook assisted in the

investigation of the accident. In his reconstruction report, he calculated that Engine 211

had been traveling between 44 and 50 miles per hour. Trooper Cook also opined that

given the decreased range of visibility caused by obstructions near the intersection, a

driver stopped at the stop sign on Johnson Street might not have been able to see the

fire truck approaching.

{¶14} Plaintiff-Appellee/Cross-Appellant Cynthia Anderson filed a wrongful-

death action alleging that the City of Massillon, Toles, and Annen had willfully, wantonly,

and recklessly caused the deaths of her husband and grandson.
Stark County, Case No. 2013CA00144 6

{¶15} Anderson’s expert, Choya R. Hawn, calculated the fire truck’s minimum

speed at the point of impact was between 49 and 52 miles per hour. He opined that

because of roadside obstructions, Engine 211 was not visible to Ronald Anderson at the

time he entered the intersection. Hawn also stated that he believed emergency vehicles

approaching a stop sign should proceed at 10 miles per hour or slower to ensure the

ability to stop. He further noted the danger of emergency vehicles running in tandem

because the siren of the first vehicle could have masked the siren of the second,

preventing Ronald Anderson from noticing the approaching fire truck.

{¶16} Scott A. Noll, an accident reconstructionist testifying for the City of

Massillon and the firefighters, concluded that Engine 211 was traveling at 39 miles per

hour and Toles had allowed adequate time and distance to evaluate the lanes of travel

before proceeding through the intersection. Noll further opined that Anderson caused

the accident by failing to stop at the stop sign.

{¶17} The City of Massillon, Toles, and Annen moved for summary judgment.

The trial court granted summary judgment in their favor, finding the City of Massillon

had a full defense to liability pursuant to R.C. 2744.02(B)(1)(b), because Engine 211

was responding to an emergency call and the operation of the fire truck did not

constitute willful or wanton misconduct. The trial court further found the firefighters were

entitled to immunity pursuant to R.C. 2744.03(A)(6)(b) because Anderson failed to

present any evidence that the firefighters had acted with malicious purpose, in bad faith,

or in a wanton or reckless manner.

{¶18} Anderson appealed the trial court’s judgment entry to this court. In

Anderson v. Massillon, 193 Ohio App.3d 297, 2011-Ohio-1328, 951 N.E.2d 1063 (5th
Stark County, Case No. 2013CA00144 7

Dist.) (“Anderson I”), we reversed the judgment of the trial court. We held there was a

genuine issue of material fact whether the actions of Toles and Annen were reckless

under R.C. 2744.03(A)(6)(b). Id. at ¶ 73. We also held that the wanton and reckless

misconduct standard set forth in R.C. 2744.03(A)(6) and the willful and wanton

misconduct standard set forth in R.C. 2744.02(B)(1)(b) were functionally equivalent. Id.

at ¶ 46. We determined the City of Massillon and the firefighters were not immune if the

firefighters had acted recklessly in causing the collision. Id. at ¶ 73.

{¶19} The City of Massillon, Toles, and Annen appealed to the Ohio Supreme

Court. They argued the terms “willfully,” “wanton,” and “reckless” were not

interchangeable but described different degrees of care. The question accepted for

appeal by the Supreme Court was: “whether the standard in R.C. 2744.02(B)(1)(b),

which affords a full defense to liability to a political subdivision unless the operation of a

fire-department vehicle constitutes willful or wanton misconduct, is equivalent to the

standard in R.C. 2744.03(A)(6)(b), which grants immunity to employees of political

subdivisions unless their acts or omissions were committed in a wanton or reckless

manner.” Anderson v. Massillon, 134 Ohio St.3d 380, 2012-Ohio-5711, 983 N.E.2d 266,

¶ 18.

{¶20} In Anderson v. Massillon, 134 Ohio St.3d 380, 2012-Ohio-5711, 983

N.E.2d 266 (“Anderson II”), the Supreme Court held that “willful,” “wanton,” and

“reckless” describe different and distinct degrees of care and are not interchangeable.

Id. at paragraph one of syllabus. The Court then clarified the respective standards. The

Court remanded the case to the trial court for further proceedings to determine,
Stark County, Case No. 2013CA00144 8

pursuant to the clarification of the terms, whether the City of Massillon had a full

defense to liability and whether the firefighters were entitled to immunity. Id. at ¶ 3.

{¶21} The City of Massillon, Toles, and Annen filed a second motion for

summary judgment and Anderson responded. On July 15, 2013, the trial court found the

City of Massillon was immune from liability pursuant to R.C. 2744.02(B)(1)(b) because

reasonable minds could only conclude that the actions of Toles and Annen on May 6,

2008 were not willful or wanton. Under R.C. 2744.03(A)(6), the trial court found there

was a genuine issue of material fact whether the actions of Toles and Annen were

reckless; therefore, the firefighters were not entitled to immunity from liability as a matter

of law.

{¶22} It is from this decision the City of Massillon, Toles, and Annen now appeal.

For ease of discussion, the City of Massillon, Toles, and Annen will be referred to at

times as “Massillon.”

ASSIGNMENTS OF ERROR

{¶23} Massillon raises three Assignments of Error:

{¶24} “I. THE TRIAL COURT ERRED WHEN IT DENIED SUMMARY

JUDGMENT IN FAVOR OF THE APPELLANTS TOLES AND ANNEN, THEREBY

DENYING THE EMERGENCY PERSONNEL THE BENEFIT OF IMMUNITY IN THE

FORM OF A ‘FULL DEFENSE’ PROVIDED BY LAW.

{¶25} “II. THE TRIAL COURT ERRED WHEN IT DENIED SUMMARY

JUDGMENT IN FAVOR OF THE APPELLANTS TOLES AND ANNEN, AFFECTING

AND UNDERMINING THE IMMUNITY FROM LIABILITY IN THE FORM OF A ‘FULL

DEFENSE’ EXTENDED TO APPELLANT MASSILLON BY OPERATION OF LAW.
Stark County, Case No. 2013CA00144 9

{¶26} “III. THE TRIAL COURT ERRED WHEN IT OVERRULED THE MOTION

FOR SUMMARY JUDGMENT IN FAVOR OF THE APPELLANTS TOLES AND

ANNEN, THEREBY DENYING THE EMERGENCY PERSONNEL THE BENEFIT OF

IMMUNITY UNDER THE STANDARD OF R.C. 2744.03(A)(6)(b).”

CROSS-ASSIGNMENT OF ERROR

{¶27} Anderson raises one Cross-Assignment of Error:

{¶28} “I. THE TRIAL COURT ERRED AS A MATTER OF LAW IN GRANTING

SUMMARY JUDGMENT TO CROSS-APPELLEE CITY OF MASSILLON.

ANALYSIS

Summary Judgment Standard of Review

{¶29} The Assignments of Error of Massillon and Anderson concern the trial

court’s judgment entry granting in part and denying in part Massillon’s motion for

summary judgment. We refer to Civ.R. 56(C) in reviewing a motion for summary

judgment which provides, in pertinent part:

Summary judgment shall be rendered forthwith if the pleading,

depositions, answers to interrogatories, written admissions, affidavits,

transcripts of evidence in the pending case and written stipulations of fact,

if any, timely filed in the action, show that there is no genuine issue as to

any material fact and that the moving party is entitled to judgment as a

matter of law. * * * A summary judgment shall not be rendered unless it

appears from such evidence or stipulation and only from the evidence or

stipulation, that reasonable minds can come to but one conclusion and

that conclusion is adverse to the party against whom the motion for
Stark County, Case No. 2013CA00144 10

summary judgment is made, such party being entitled to have the

evidence or stipulation construed most strongly in the party's favor.

{¶30} The moving party bears the initial responsibility of informing the trial court

of the basis for the motion, and identifying those portions of the record before the trial

court, which demonstrate the absence of a genuine issue of fact on a material element

of the nonmoving party's claim. Dresher v. Burt, 75 Ohio St.3d 280, 292, 662 N.E.2d

264 (1996). The nonmoving party then has a reciprocal burden of specificity and cannot

rest on the allegations or denials in the pleadings, but must set forth “specific facts” by

the means listed in Civ.R. 56(C) showing that a “triable issue of fact” exists. Mitseff v.

Wheeler, 38 Ohio St.3d 112, 115, 526 N.E.2d 798, 801 (1988).

{¶31} Pursuant to the above rule, a trial court may not enter summary judgment

if it appears a material fact is genuinely disputed. Vahila v. Hall, 77 Ohio St.3d 421, 429,

674 N.E.2d 1164 (1997), citing Dresher v. Burt, 75 Ohio St.3d 280, 662 N.E.2d 264

(1996).

Immunity

{¶32} The issues presented in this case have been well developed through the

appellate process. The issues are (1) whether the City of Massillon is entitled to the full

defense to liability for a political subdivision and (2) whether Toles and Annen are

granted immunity from suit as employees of a political subdivision. In order to determine

the liability of the City of Massillon, Toles, and Annen, we conduct our analysis pursuant

to the language of two statutes: R.C. 2744.02(B)(1) and R.C. 2744.03(A)(6). The

relevant portions of those statutes set forth different degrees of care (willful, wanton and
Stark County, Case No. 2013CA00144 11

reckless conduct) that can impose liability upon the political subdivision and/or the

employee of the political subdivision.

{¶33} However, before we engage in our de novo review of the Civ.R. 56

evidence as to the issues presented and applicable statutes, we recite the facts that are

not in dispute. The City of Massillon is a political subdivision. On May 6, 2008, Toles

and Annen were employees of the City of Massillon Fire Department. On May 6, 2008,

Toles and Annen were operating a motor vehicle while proceeding toward a place

where a fire was in progress or was believed to be in progress and they were answering

an emergency alarm.

R.C. 2744.02 – Governmental Immunity

{¶34} R.C. 2744.02 establishes governmental immunity for political subdivisions

and their employees: “* * * [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.”

{¶35} A three-tiered analysis is required to determine whether a political

subdivision is immune from tort liability pursuant to R.C. 2744. Green Cty. Agricultural

Soc. v. Liming, 89 Ohio St.3d 551, 556-557, 733 N.E.2d 1141 (2000); Smith v. McBride,

130 Ohio St.3d 51, 2011-Ohio-4674, 955 N.E.2d 954, ¶13-15. The first tier is the

general rule that a political subdivision is immune from liability incurred in performing

either a governmental or a proprietary function. Green Cty. Agricultural Society, at 556-

557, 733 N.E.2d 1141; R.C. 2744.02(A)(1). That immunity, however, is not absolute.

R.C. 2744.02(B); Carter v. Cleveland, 83 Ohio St.3d 24, 697 N.E.2d 610 (1998). “The
Stark County, Case No. 2013CA00144 12

second tier of the analysis requires a court to determine whether any of the five listed

exceptions to immunity listed in R.C. 2744.02(B) apply to expose the political

subdivision to liability.” Id. “In cases involving the alleged negligent operation of a motor

vehicle by an employee of a political subdivision, the second tier of the analysis includes

consideration of whether the specific defenses of R.C. 2744.02(B)(1)(a) through (c)

apply to negate the immunity exception of R.C. 2744.02(B)(1).” Smith v. McBride, 2011-

Ohio-4674, ¶ 14 citing Colbert v. Cleveland, 99 Ohio St.3d 215, 2003-Ohio-3319, 790

N.E.2d 781, ¶ 8. “If any of the exceptions to immunity of R.C. 2744.02(B) do apply, and

if no defense in that section applies to negate the liability of the political subdivision

under that section, then the third tier of the analysis requires an assessment of whether

any defenses in R.C. 2744.03 apply to reinstate immunity.” Id. at ¶ 15 citing Colbert at ¶

9.

R.C. 2744.02(B)(1)(b) – Full Defense to Liability

{¶36} The first statute relevant to the resolution of this case is R.C. 2744.02(B).

R.C. 2744.02(B) addresses the liability of a political subdivision and the full defenses to

liability for the operation of a motor vehicle by employees. It states:

(B) Subject to sections 2744.03 and 2744.05 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 otherwise provided in this division, political subdivisions are liable

for injury, death, or loss to person or property caused by the negligent operation
Stark County, Case No. 2013CA00144 13

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:

***

(b) A member of a municipal corporation fire department or any other firefighting

agency was operating a motor vehicle while engaged in duty at a fire, proceeding

toward a place where a fire is in progress or is believed to be in progress, or

answering any other emergency alarm and the operation of the vehicle did not

constitute willful or wanton misconduct;

***

R.C. 2744.03(A)(6)(b) – Employee Immunity

{¶37} The three-tiered analysis of liability applicable to a political subdivision as

set forth above does not apply when determining whether an employee of a political

subdivision will be liable for harm caused to an individual. Mashburn v. Dutcher, 5th

Dist. Delaware No. 12 CAE 010003, 2012-Ohio-6283, -- N.E.2d --, ¶ 33 citing Cramer v.

Auglaize Acres, 113 Ohio St.3d 266, 2007-Ohio-1946, 865 N.E.2d 9, ¶ 17. We review

the next statute relevant to this case, R.C. 2744.03(A)(6), to determine the liability of an

employee of a political subdivision. Pursuant to R.C. 2744.03(A)(6), an employee of a

political subdivision is immune from liability unless: (a) the employee’s acts or omissions

were manifestly outside the scope of the employee’s employment or official

responsibilities or (b) the employee’s acts or omissions were with malicious purpose, in

bad faith, or in a wanton or reckless manner. An employee is immune from liability for

negligent acts or omissions. Anderson II, supra at ¶ 23.
Stark County, Case No. 2013CA00144 14

Degrees of Care

{¶38} The Ohio Supreme Court stated in Anderson II that the General Assembly

set forth three different degrees of care in R.C. 2744.02(B)(1)(b) and 2744.03(A)(6)(b)

to impose liability on a political subdivision or an employee of a political subdivision.

Anderson II, supra at ¶ 23. The degrees of care found in the statutes are “willful,”

“wanton,” and “reckless.” The Anderson II court clarified that the terms “willful,”

“wanton,” and “reckless” used in the statutes are not interchangeable and it set forth the

following definitions:

Willful misconduct implies 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 purposefully doing wrongful acts with

knowledge or appreciation of the likelihood of resulting injury. Tighe v.

Diamond, 149 Ohio St. at 527, 80 N.E.2d 122; see also Black's Law

Dictionary 1630 (8th Ed.2004) (describing willful conduct as the voluntary

or intentional violation or disregard of a known legal duty).

Wanton misconduct is 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. Hawkins, 50 Ohio St.2d at 117–118, 363

N.E.2d 367; see also Black's Law Dictionary 1613–1614 (8th Ed.2004)

(explaining that one acting in a wanton manner is aware of the risk of the

conduct but is not trying to avoid it and is indifferent to whether harm

results).
Stark County, Case No. 2013CA00144 15

Reckless conduct is characterized by the conscious disregard of or

indifference to a known or obvious risk of harm to another that is

unreasonable under the circumstances and is substantially greater than

negligent conduct. Thompson, 53 Ohio St.3d at 104–105, 559 N.E.2d 705,

adopting 2 Restatement of the Law 2d, Torts, Section 500, at 587 (1965);

see also Black's Law Dictionary 1298–1299 (8th Ed.2004) (explaining that

reckless conduct is characterized by a substantial and unjustifiable risk of

harm to others and a conscious disregard of or indifference to the risk, but

the actor does not desire harm).

Anderson II, supra at ¶ 32-34.

{¶39} R.C. 2744.02(B)(1)(b) states that in order to negate the immunity of the

political subdivision when its employee is operating a motor vehicle and responding to a

fire emergency, the conduct of the employee when operating the motor vehicle must be

willful or wanton. R.C. 2744.03(A)(6)(b) states that an employee of a political

subdivision can be liable if the employee’s acts or omissions were done in a wanton or

reckless manner. The only overlap between the statutes is for acts committed in a

wanton manner.

{¶40} The Anderson II court analyzed the basis for the different degrees of care:

In the foregoing statutes, the General Assembly set forth different

degrees of care that impose liability on a political subdivision or on an

employee of a political subdivision. The legislature expressly stated that a

political subdivision has a full defense to liability when the conduct

involved is not willful or wanton, and therefore if the conduct is only
Stark County, Case No. 2013CA00144 16

reckless, the political subdivision has a full defense to liability. In addition,

the legislature expressly removed immunity from employees of a political

subdivision for wanton or reckless conduct in R.C. 2744.03(A)(6)(b). By

implication, an employee is immune from liability for negligent acts or

omissions.

***

When the General Assembly used the terms ‘willful’ or ‘wanton’ in

R.C. 2744.02(B)(1)(b) to deny a full defense to liability for a political

subdivision and the terms wanton or reckless in R.C. 2744.02(A)(6)(b) to

remove immunity of an employee of the political subdivision, it intended

different degrees of care.

Anderson II, supra at ¶ 23 and ¶ 36.

{¶41} Whether an actor’s conduct was malicious, wanton, reckless, or in bad

faith is generally a fact question for the jury to decide. See Fabrey v. McDonald Village

Police Dept., 70 Ohio St.3d 351, 356, 639 N.E.2d 31 (1994). Utilizing the Anderson II

definitions for wanton, willful, or reckless conduct, we conduct a de novo review of the

Civ.R. 56 evidence to determine whether there are genuine issues of material fact as to

the liability of the City of Massillon, Toles, and Annen under R.C. 2744.02(B)(1)(b) or

R.C. 2744.03(A)(6)(b). Our previous analysis of the Civ.R. 56 evidence conducted

under Anderson I as to these issues does not have relevance to our determination

today because the Anderson II court found our use of the definitions of wanton, willful,

and reckless was incorrect. Our analysis today utilizes the distinct degrees of care of

R.C. 2744.02(B)(1)(b) and R.C. 2744.03(A)(6)(b) as promulgated by Anderson II.
Stark County, Case No. 2013CA00144 17

The Liability of the City of Massillon under R.C. 2744.02(B)(1)(b)

{¶42} Under R.C. 2744.02(B)(1)(b), a political subdivision has a full defense to

liability for the operation of a motor vehicle by its employees if the operation of the motor

vehicle when responding to a fire emergency did not constitute willful or wanton

misconduct. In its judgment entry granting summary judgment in favor of the City of

Massillon, the trial court found there was no genuine issue of material fact that the City

of Massillon was entitled to the full defense to liability under R.C. 2744.02(B)(1)(b).

Anderson argues in her sole Cross-Assignment of Error that the trial court erred in

finding the City of Massillon was entitled to the full defense to liability because

reasonable minds could come to different conclusions as to whether Toles’s and

Annen’s operation of Engine 211 on May 6, 2008 constituted wanton misconduct. We

agree.

The Meaning of Willful or Wanton Misconduct

{¶43} The Anderson II court reaffirmed that willful and wanton misconduct

describe two distinct legal standards. See Mashburn v. Dutcher, 5th Dist. Delaware No.

12 CAE 010003, 2012-Ohio-6283, -- N.E.2d --, ¶ 41 citing Gardner v. Ohio Valley

Region Sports Car Club of Am., 10th Dist. Franklin No. 01 AP–1280, 2002-Ohio-3556,

at ¶ 11.

{¶44} “Wanton misconduct is the failure to exercise any care toward those to

whom a duty of care is owed in circumstances in which there is a great probability that

harm will result.” Anderson II, supra at ¶ 33. Wanton misconduct has been likened to

conduct that manifests a “disposition to perversity,” but the Supreme Court abandoned

“disposition to perversity” as an element of the definition of wanton misconduct in
Stark County, Case No. 2013CA00144 18

Hawkins v. Ivy, 50 Ohio St.2d 114, 363 N.E.2d 367 (1977). Anderson II, supra at ¶ 28.

“‘[M]ere negligence is not converted into wanton misconduct unless the evidence

establishes a disposition to perversity on the part of the tortfeasor.’” Fabrey v. McDonald

Village Police Dept., 70 Ohio St.3d 351, 356, 639 N.E.2d 31 (1994), quoting Roszman,

supra. See Gardner v. Ohio Valley Region Sports Car Club of Am., 10th Dist. No. 01

AP–1280, 2002-Ohio-3556, at ¶ 13. “[I]t must be under such surrounding circumstances

and existing conditions that the party doing the act or failing to act must be conscious,

from his knowledge of such surrounding circumstances and existing conditions, that his

conduct will in all common probability result in injury.” Anderson II, supra at ¶ 25 citing

Universal Concrete Pipe Co. v. Bassett, 130 Ohio St. 567, 200 N.E. 843 (1936),

paragraph two of syllabus.

{¶45} “Willful conduct implies 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 purposefully doing wrongful acts with knowledge or appreciation of the

likelihood of resulting injury.” Anderson II, supra at ¶ 32. Willful misconduct involves “an

intent, purpose, or design to injure.” Zivich v. Mentor Soccer Club, Inc., 82 Ohio St.3d

367, 375, 696 N.E.2d 201 (1998), quoting McKinney v. Hartz & Restle Realtors, Inc., 31

Ohio St.3d 244, 246, 510 N.E.2d 386 (1987). Willful misconduct is something more than

negligence and it imports a more positive mental condition prompting an act than

wanton misconduct. Phillips v. Dayton Power & Light Co., 93 Ohio App.3d 111, 119,

637 N.E.2d 963 (2nd Dist.1994), citing Tighe v. Diamond, 149 Ohio St. 520, 526–527,

80 N.E.2d 122 (1948). “Willful misconduct” involves a more positive mental state

prompting the injurious act than wanton misconduct, but the intention relates to the
Stark County, Case No. 2013CA00144 19

misconduct, not the result. Mashburn v. Dutcher, 5th Dist. No. 12 CAE 010003, 2012-

Ohio-6283, ¶ 45.

{¶46} Both wanton and willful describes conduct that is greater than negligence

and can be summarized as follows: willful conduct is the intent to harm someone and

wanton misconduct is the failure to exercise any care whatsoever. Anderson II, supra at

¶ 48.

{¶47} In the present case, the alleged violations of local ordinances and

departmental policies in the operation of Engine 211 on May 6, 2008 are relevant to, but

not determinative of, the determination of willful, wanton, or reckless misconduct. The

Anderson II court stated as to the consideration of the violation of statutes, ordinances,

or departmental policies in determining whether there is willful or wanton conduct:

[I]t is well established that the violation of a statute, ordinance, or

departmental policy enacted for the safety of the public is not per se willful,

wanton, or reckless conduct, but may be relevant to determining the

culpability of a course of conduct.

However, as the Restatement explains,

In order that the breach of [a] statute constitute reckless disregard

for the safety of those for whose protection it is enacted, the statute

must not only be intentionally violated, but the precautions required

must be such that their omission will be recognized as involving a

high degree of probability that serious harm will result.

Thus, as we concluded in O’Toole v. Denihan, 118 Ohio St.3d 374,

2008-Ohio-2574, 889 N.E.2d 505, “[w]ithout evidence of an accompanying
Stark County, Case No. 2013CA00144 20

knowledge that the violations ‘will in all probability result in injury,’

evidence that policies have been violated demonstrates negligence at

best.” Id. at 92.

(Citations omitted.) Anderson II, supra at ¶ 37-38.

Was the Conduct of Toles and Annen Wanton?

{¶48} Anderson argues the totality of the evidence demonstrates there is a

genuine issue of material fact as to whether the conduct of Toles and Annen

demonstrated wanton misconduct. Anderson does not argue in her appellate brief that

the conduct of Toles and Annen was willful and therefore, we will not address willful

misconduct in relation to the facts presented. In support of Anderson’s argument that

the conduct of the firefighters was wanton, she directs the court to consider the physical

circumstances of the scene where the accident occurred in relation to Toles’s and

Annen’s conduct that consisted of alleged violations of local ordinances and

departmental policies when responding to the emergency call. Anderson argues Toles’s

and Annen’s actions when approaching the intersection at Johnson and Walnut Street

demonstrated wanton misconduct.

{¶49} The determination of whether the conduct of Toles and Annen on May 6,

2008 was wanton is made considering the totality of the circumstances. Anderson v.

Massillon, 193 Ohio App.3d 297, 2011-Ohio-1328, 951 N.E.2d 1063, ¶ 55. We also

make our determination of whether there was wanton misconduct under the dictates of

Civ.R. 56. We conduct a de novo review and consider the Civ.R. 56 evidence

presented in a light most favorable to Anderson, the non-moving party, to determine

whether there are genuine issues of material fact for trial.
Stark County, Case No. 2013CA00144 21

{¶50} Anderson first points the court to the speed at which Toles approached

and entered the Johnson and Walnut Street intersection. The speed limit on Walnut

Street is 25 miles per hour. There is no dispute of fact that on May 6, 2008, Toles was

operating Engine 211 at a speed in excess of 25 miles per hour. Ohio State Highway

Patrol Trooper Frederick J. Cook assisted in the investigation of the accident. In his

reconstruction report, he calculated that Engine 211 had been traveling at a minimum

speed of 44 and 50 miles per hour. Anderson’s expert, Choya R. Hawn, calculated the

fire truck’s minimum speed at the point of impact was between 49 and 52 miles per

hour. Scott A. Noll, an accident reconstructionist testifying for Massillon, concluded that

Engine 211 was traveling at 39 miles per hour.

{¶51} On May 6, 2008, the City of Massillon did not impose a specific limitation

on its firefighters to operate its emergency vehicles a certain miles per hour over the

posted speed limit when responding to an emergency. (Krause Depo., p. 50). Robert C.

Krause, Anderson’s expert testifying as to the operation of emergency vehicles, referred

to the ASTM International, Standard Guide for Training Emergency Medical Services

Ambulance Operations, Section 14.5.4.1, that stated, “under emergency response

conditions, the speed shall not exceed that which is safe for road or environmental

conditions. In no case shall the speed exceed 10 mph over the posted speed limit.”

Jason Castile, a City of Massillon firefighter in Engine 211 on May 6, 2008, testified that

he felt “10 miles an hour over the speed limit is allowable when traveling in an

emergency.” (Castile Depo., p. 41). Castile thought that was a state policy. (Castile

Depo., p. 42). Annen testified that he believed Toles was driving 35 to 40 miles per
Stark County, Case No. 2013CA00144 22

hour. (Annen Depo., p. 99). He did not feel her speed was excessive and was within a

safe parameter. (Annen Depo., p 101).

{¶52} Anderson next argues the court should consider Toles’s speed when

driving Engine 211 in relation to the physical circumstances of the scene of the

accident. The intersection of Johnson and Walnut Street is a four-way stop, marked by

stop signs and an overhead flashing red light. Toles did not stop Engine 211 when she

crossed through the intersection. Massillon Ordinance 331.20(a) states, “[t]he 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.”

{¶53} Massillon Ordinance 331.20(a) authorized Toles and Annen to proceed

through a stop sign without stopping under certain conditions when responding to an

emergency call. Anderson argues, however, the Johnson and Walnut intersection is a

blind intersection, which required Toles to apply the brakes and/or stop at the

intersection. Massillon Fire Department Standard Operating Procedures §307.03,

effective July 27, 2007, is entitled “Driver Responsibility” and states:

A. The driver of any Massillon Fire Department vehicle shall be directly

responsible for the sage and prudent operation of the vehicle.

B. The driver’s first priority shall be the safe arrival of the emergency

vehicle at the emergency scene.

***
Stark County, Case No. 2013CA00144 23

D. During emergency response, the driver shall bring the vehicle to a

complete stop for any of the following:

–when so directed by a law enforcement official

–blind intersections

–when the driver cannot account for all lane of traffic in an

intersection

–when other intersection hazards are present

–when encountering a stopped school bus with flashing warning

lights

{¶54} On May 6, 2008, a tree, utility pole, bushes, parked cars, and a house

close to the street partially obstructed the view of the traffic approaching from Johnson

Street to Walnut Street. Choya R. Hawn, Anderson’s accident reconstructionist, opined

that “[t]he buildings, fence, utility poles, bushes, and trees in the southwest quadrant of

the intersection of Walnut Street SE and Johnson Street SE created a fixed object view

obstruction which limited the line of sight (West) from the stop sign at Johnson Street to

323 feet (for both drivers).” Scott A. Noll, accident reconstructionist for Massillon, stated

in his expert report the “sight distance was limited due to various trees, bushes, and a

residential structure located on the south side of Walnut Street.”

{¶55} Toles stated that she scanned the intersection of Johnson and Walnut

Street to make sure the intersection was clear and she determined no one was in the

intersection. Toles did not stop Engine 211 at the intersection. While Engine 211 has

jake brakes that activate when the foot is taken off the accelerator, Toles did not recall

taking her foot off the accelerator when she entered the intersection. Annen stated he
Stark County, Case No. 2013CA00144 24

saw Ronald Anderson’s minivan slowly roll through the stop sign at Johnson Street to

cross Walnut Street. Annen yelled to Toles, “He’s not stopping!” Toles stated that as

she approached the intersection, she saw the minivan “shoot out in front” of Engine 211.

Daniel Clark, a witness to the accident, stated in his affidavit submitted in support of

Anderson’s response to the motion for summary judgment: “[t]he fire truck did not slow

before entering the intersection and I heard no sound of it braking or skidding.”

{¶56} Anderson argues there is a genuine issue of material fact whether

Annen’s conduct as captain on May 6, 2008 was wanton. Massillon Fire Department

Standard Operating Procedures §307.04 details the “Officer’s Responsibility:”

***

B. The Officer shall ensure that the driver is operating the vehicle in a

safe and prudent manner at all times in accordance with department

policy and state statutes.

C. The Officer shall issue warnings about road conditions and physical

hazards to the driver when necessary.

D. The Officer shall be responsible to operate the radio, communications

equipment, audible and visual warning devices.

E. The Officer shall assist the driver with intersection crossing, locating

the scene, backing, and any other necessary safety practice.

{¶57} Anderson also argues there is a genuine issue of material fact that

because of the speed of Engine 211, Engine 211’s siren was masked by the siren of

Engine 214 or that Engine 211 outran its siren so that Ronald Anderson did not hear

Engine 211 approaching the intersection. Engine 211 was following Engine 214 down
Stark County, Case No. 2013CA00144 25

Walnut Street at some distance apart. Toles testified that she received training that if

two emergency vehicles were responding in tandem, there was a possibility that one

siren could mask the other siren. (Toles Depo., p. 103). She was not aware if Engine

211 and Engine 214 were using different styles of siren wails on May 6, 2008. (Toles

Depo., p. 104). Toles testified that she was also trained on the effect of speed on the

siren’s ability to warn motorists. (Toles Depo., p. 105). She stated that at certain

speeds, the siren might not be as loud. Toles stated that with a larger vehicle such as

Engine 211, the siren might become ineffective at 45 to 50 miles per hour. (Toles Depo.,

p. 106). Annen testified he agreed that a fire truck could outrun its siren. (Annen Depo.,

p. 119). Annen stated he did not have a specific recollection, but as they entered the

intersection, he was probably pressing both the Q (a type of siren) and the air horn

because that is generally what he did. (Annen Depo., p. 116). Daniel Clark, a witness to

the accident, testified in his affidavit that he never heard an air horn when Engine 211

approached or reached the intersection.

{¶58} Wanton misconduct is 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 II, supra at ¶ 33. Under Civ.R. 56, we review the facts

presented in a light most favorable to the non-moving party to determine whether there

is a genuine issue of material fact that the conduct of Toles and Annen was wanton.

Courts have consistently held that the line between willful, wanton, or reckless

misconduct and ordinary negligence is a fine one, so that the “’the issue of whether

conduct was willful or wanton should be submitted to the jury for consideration in light of

the surrounding circumstances when reasonable minds might differ as to the import of
Stark County, Case No. 2013CA00144 26

the evidence.’” Hunter v. Columbus, 139 Ohio App.3d 962, 970, 746 N.E.2d 246, 252

(10th Dist.2000); Gilbert v. Cleveland, 8th Dist. Cuyahoga No. 99708, 2013-Ohio-5252.

{¶59} Based on the facts presented in this case, we find there is a genuine issue

of material fact whether the conduct of Toles and Annen on May 6, 2008 was wanton

misconduct. Reasonable minds could come to differing conclusions as to whether Toles

and Annen failed to exercise any care when Engine 211 entered the intersection of

Johnson and Walnut Street. Toles’s and Annen’s alleged violations of local ordinances

and departmental policies as to the operation of an emergency vehicle at an intersection

with limited visibility does not demonstrate wanton misconduct per se, but the alleged

violations are relevant in determining the culpability of a course of conduct and whether

the violations would in all probability result in injury.

{¶60} R.C. 2744.02(B)(1)(b) affords political subdivisions a full defense to liability

for injuries caused by the operation of a fire department vehicle responding to an

emergency if the operation of the vehicle does not constitute willful or wanton

misconduct. We find there is a genuine issue of material fact whether the operation of

Engine 211 demonstrated wanton misconduct, thereby negating the City of Massillon’s

immunity from liability under R.C. 2744.02.

{¶61} Anderson’s sole Cross-Assignment of Error is sustained.

The Liability of Toles and Annen under R.C. 2744.03(A)(6)(b)

{¶62} R.C. 2744.03(A)(6)(b) provides immunity to political subdivision

employees for acts or omissions not committed in a wanton or reckless manner. The

trial court held there was a genuine issue of material fact whether the actions of Toles

and Annen on May 6, 2008 were reckless. Massillon argues in its third Assignment of
Stark County, Case No. 2013CA00144 27

Error the trial court erred in denying summary judgment as to Toles and Annen under

R.C. 2744.03(A)(6)(b). We disagree.

The Meaning of Wanton and Reckless Conduct

{¶63} We defined wanton misconduct under our analysis of R.C.

2744.02(B)(1)(b). As we noted, R.C. 2744.02(B)(1)(b) and R.C. 2744.03(A)(6)(b) are

similar in that the statutes both list “wanton” misconduct as conduct that could cause the

employee or political subdivision to be liable. Wanton misconduct is 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 II, supra at ¶ 33.

{¶64} The Anderson II court defined reckless misconduct:

Reckless conduct is characterized by the conscious disregard of or

indifference to a known or obvious risk of harm to another that is

unreasonable under the circumstances and is substantially greater than

negligent conduct. Thompson, 53 Ohio St.3d at 104–105, 559 N.E.2d 705,

adopting 2 Restatement of the Law 2d, Torts, Section 500, at 587 (1965);

see also Black's Law Dictionary 1298–1299 (8th Ed.2004) (explaining that

reckless conduct is characterized by a substantial and unjustifiable risk of

harm to others and a conscious disregard of or indifference to the risk, but

the actor does not desire harm).

Anderson II, supra at ¶ 34.

{¶65} The Restatement of Torts 2d defines “recklessness” as follows: “The

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
Stark County, Case No. 2013CA00144 28

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.”

2 Restatement of the Law 2d, Torts, Section 500 at 587 (1965). Comment f to Section

500 contrasts recklessness and intentional misconduct: “While an act to be reckless

must be intended by the actor, the actor does not intend to cause the harm which

results from it.” Id. at 590. Comment a to Section 500 adds that “ * * * the risk must itself

be an unreasonable one under the circumstances.” Id. at 588.

Was the Conduct of Toles and Annen Wanton or Reckless?

{¶66} We found under R.C. 2744.02(B)(1)(b) that reasonable minds could come

to differing conclusions as to whether the conduct of Toles and Annen when entering

the intersection of Walnut and Johnson Street demonstrated wanton misconduct. We

therefore find, under R.C. 2744.03(A)(6)(b), there is likewise a genuine issue of material

fact whether Toles and Annen demonstrated wanton misconduct on May 6, 2008.

{¶67} As to reckless misconduct, Anderson argues the facts that create a

genuine issue of material fact as to wanton misconduct also support a finding there is a

genuine issue of material fact whether the conduct of Toles and Annen when entering

the intersection of Johnson and Walnut Street was reckless. We agree.

{¶68} We consider the totality of the circumstances when determining whether

the conduct of Toles and Annen was reckless. We find that the speed at which Toles

and Annen entered the intersection with at least limited visibility could demonstrate to a

trier of fact there was a conscious disregard of or indifference to a known or obvious risk
Stark County, Case No. 2013CA00144 29

of harm to another that is unreasonable under the circumstances and is substantially

greater than negligent conduct.

{¶69} There are genuine issues of material fact whether the acts or omissions of

Toles and Annen on May 6, 2008 were wanton or reckless under R.C. 2744.03(A)(6)(b)

so as to remove their immunity from suit as political subdivision employees.

{¶70} Massillon’s third Assignment of Error is overruled.

Application of the “Full Defense” to Political Subdivision Employees

{¶71} Massillon argues in its first and second Assignments of Error that the “full

defense” found in R.C. 2744.02(B)(1)(b) should apply to the political subdivision as well

as the employees of the political subdivision. We disagree.

{¶72} R.C. 2744.07(A)(1) states:

[A] political subdivision shall provide for the defense of an employee, in

any state or federal court, in any civil action or proceeding which contains

an allegation for damages for injury, death, or loss to person or property

caused by an act or omission of the employee in connection with a

governmental or proprietary function. The political subdivision has the duty

to defend the employee if the act or omission occurred while the employee

was acting both in good faith and not manifestly outside the scope of

employment or official responsibilities.

{¶73} R.C. 2744.07(A)(2) states:

[A] political subdivision shall indemnify and hold harmless an employee in

the amount of any judgment, other than a judgment for punitive or

exemplary damages, that is obtained against the employee in a state or
Stark County, Case No. 2013CA00144 30

federal court or as a result of a law of a foreign jurisdiction and that is for

damages for injury, death, or loss to person or property caused by an act

or omission in connection with a governmental or proprietary function, if at

the time of the act or omission the employee was acting in good faith and

within the scope of employment or official responsibilities.

{¶74} Massillon argues that because R.C. 2744.07(A)(1) and R.C. 2744.07(A)(2)

require the political subdivision to defend and indemnify the political subdivision

employee, R.C. 2744.03(A)(6)(b) therefore defeats the purpose of the “full defense”

provision of R.C. 2744.02(B)(1).

{¶75} In its summary judgment entry, the trial court considered the argument

presented by Massillon and found it to be unpersuasive. We agree. As the trial court

noted, the Anderson II court considered R.C. 2744.02(B)(1)(b), 2744.03(A)(6)(b),

2744.07(A)(1), and 2744.07(A)(2) in making its decision. Under R.C. 2744.02(B)(1)(b),

the political subdivision is granted a full defense to liability unless the conduct of the

political subdivision employee when operating a motor vehicle is willful or wanton.

Under R.C. 2744.03(A)(6)(b), the political subdivision employee is granted immunity

from suit unless the conduct is wanton or reckless. The Anderson II court held:

In the foregoing statutes, the General Assembly set forth different

degrees of care that impose liability on a political subdivision or on an

employee of a political subdivision. The legislature expressly stated that a

political subdivision has a full defense to liability when the conduct

involved is not willful or wanton, and therefore, if the conduct is only

reckless, the political subdivision has a full defense to liability. In addition,
Stark County, Case No. 2013CA00144 31

the legislature expressly removed immunity from employees of a political

subdivision for wanton or reckless conduct in R.C. 2744.03(A)(6)(b). By

implication, an employee is immune from liability for negligent acts or

omissions.

Anderson II, supra at ¶ 23. Anderson II held that the General Assembly intended

different degrees of care for a political subdivision and its employees. Anderson II,

supra at ¶ 36. By so holding, the Anderson II court interpreted the political subdivision

immunity analysis under R.C. 2744.02(B)(1)(b) to be distinct from the employee

immunity analysis under R.C. 2744.03(A)(6)(b). The Anderson II court considered R.C.

2744.07(A)(2) in its analysis and did not find a conflict between the statutes as to R.C.

2744.02(B)(1)(b) and 2744.03(A)(6)(b). R.C. 2744.07(A)(2) “requires the political

subdivision to indemnify its employee if the employee is liable for a good faith act

related to a governmental or proprietary function. Requiring the subdivision to indemnify

its employee is entirely different from imposing direct liability on the subdivision.” Piro v.

Franklin Twp., 102 Ohio App.3d 130, 141, 656 N.E.2d 1035, 1042 (9th Dist.1995).

{¶76} Massillon’s first and second Assignments of Error are overruled.
Stark County, Case No. 2013CA00144 32

CONCLUSION

{¶77} Based on the foregoing, we overrule the first, second, and third

Assignments of Error of the Defendants-Appellants/Cross-Appellees City of Massillon,

Susan J. Toles, and Rick H. Annen. We sustain the sole Cross-Assignment of Error of

Plaintiff-Appellee/Cross-Appellant Cynthia Anderson, Administratrix of the Estates of

Ronald E. Anderson and Javarre J. Tate.

{¶78} The judgment of the Stark County Court of Common Pleas is affirmed in

part and reversed and remanded in part for further proceedings consistent with this

opinion and law.

By: Delaney, J.,

Gwin, P.J. and

Hoffman, J., concur.