[Cite as Burlingame v. Estate of Burlingame, 2014-Ohio-5440.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
GRACE BURLINGAME : JUDGES:
:
: Hon. William B. Hoffman, P.J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
-vs- :
: Case No. 2014CA00033
:
ESTATE OF DALE BURLINGAME, ET :
AL. :
:
:
Defendants-Appellants : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas, Case No.
2009CV00689
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: December 8, 2014
APPEARANCES:
For Plaintiff-Appellee: For Defendants-Appellants:
ELIZABETH A. BURICK KEVIN R. L'HOMMEDIEU
Elizabeth A. Burick Co. LPA KRISTEN BATES AYLWARD
1428 Market Ave. N. Canton Law Department
Canton, OH 44714 218 Cleveland Ave. SW
Canton, OH 44701-4218
ORVILLE L. REED, III
Stark & Knoll For Defendant-Appellee:
3475 Ridgewood Road
Akron, OH 44333-3163 THOMAS LOMBARDI
101 Central Plaza S., Suite 900
Canton, OH 44702
Stark County, Case No. 2014CA00033 2
Delaney, J.
{¶1} Defendants-Appellants City of Canton and its employee James R.
Coombs, II appeal the February 7, 2014 judgment entry of the Stark County Court of
Common Pleas.
FACTS AND PROCEDURAL HISTORY
{¶2} The following facts were recited in Burlingame v. Estate of Burlingame, 5th
Dist. Stark Nos. 2010CA00124, 2010CA00130, 2011-Ohio-1325:
{¶3} On July 4, 2007, Grace and Dale Burlingame were heading home after
enjoying a family picnic at their granddaughter's house. On their route home, the
Burlingames were stopped at the red light at 18th Street, N.W., and Cleveland Ave,
N.W. in Canton.
{¶4} The traffic signals in Canton, like many other large cities, have a device
known as a “preemption system,” that overrides the usual traffic light pattern. When
properly initiated, this system affords an emergency vehicle a favored status (green
light) at an intersection. It is the siren that initiates the preemption system, not a horn or
other device.
{¶5} James R. Coombs, II was a firefighter with the Canton City Fire
Department. On July 4, 2007, he was driving a fire truck that was responding to an
emergency call. Coombs immediately activated the fire trucks lights and siren after
pulling out of the fire station. As Coombs drove south on Cleveland Avenue, the siren
stopped working just south of the 22nd Street intersection. When Coombs could not
successfully reactivate the siren, Captain Rick Sacco who was in the passenger seat of
Stark County, Case No. 2014CA00033 3
the fire truck ordered Coombs to slow down and use the truck's air horn to alert
motorists.
{¶6} Testimony was presented that the City of Canton had trained its
firefighters to stop at red lights even when responding to emergency calls. In addition,
the firefighters were trained that, if the siren malfunctioned during a run, to convert the
emergency response into a non-emergency. In the case at bar, Coombs continued to
proceed in an emergency response mode in spite of the malfunctioning siren.
{¶7} As Coombs approached the intersection on a red light, he could see the
cross-traffic stopped on 18th Street. An ambulance traveling with its siren activated and
headed south on Cleveland Avenue passed through the intersection while the
Burlingames' vehicle was stopped at the red light. Brooke James the driver of the
vehicle that was behind the Burlingames' van saw the traffic light turn from red to green
after the ambulance passed.
{¶8} As he approached the intersection, Coombs sounded the truck's air horn
and was traveling at a speed between 35 to 40 miles per hour. Coombs thought he saw
his traffic light turn green, however it did not. When Mr. Burlingame's light turned green,
Mr. Burlingame slowly pulled his vehicle into the intersection to make a left turn.
Coombs saw the van pull into the intersection and attempted to avoid hitting it by
swerving left of center. The Burlingames' vehicle was struck by Appellees' 20–ton fire-
truck traveling at 40 mph from a perpendicular direction. Mr. Burlingame was killed
instantly; Mrs. Burlingame sustained serious personal injuries and later died from those
injuries.
Stark County, Case No. 2014CA00033 4
{¶9} On February 19, 2009, Plaintiff-Appellee Grace Burlingame, filed suit
seeking to recover money damages for the personal injuries that she suffered in a
catastrophic collision that occurred on July 4, 2007 at the intersection of Cleveland
Avenue and 18th Street, N.W. in the City of Canton. Burlingame named as Defendants,
Joseph Burlingame, Executor of the Estate of Dale Burlingame, deceased, as well as
the City of Canton, the Canton City Fire Department, James R. Coombs, II and
Motorists Insurance Group. Burlingame filed a cross-claim against the Canton City Fire
Department, the City of Canton, James R. Coombs, II and the Canton City Fire
Department seeking damages for the wrongful death of Dale Burlingame as a result of
the accident of July 4, 2007. The City of Canton, James R. Coombs, II and the Canton
City Fire Department filed an Answer to that cross-claim and included, among its
affirmative defenses, that they were entitled to all the immunities, privileges and
defenses granted to them pursuant to Chapter 2744 of the Ohio Revised Code. The
City, Coombs and the Canton City Fire Department cross-claimed against the Estate of
Dale Burlingame and claimed that they were entitled to be indemnified for his alleged
negligence. The City also sought to recover damages for the loss that it suffered to its
fire truck.
{¶10} The City of Canton, Canton Fire Department and James R. Coombs, II
moved for summary judgment. The trial court found the evidence demonstrated that
Coombs' actions were negligent at best, and did not rise to the level of malicious
purpose, bad faith or in a wanton and reckless manner. The court concluded Coombs
and the City of Canton had statutory immunity from the Burlingames' suit.
Stark County, Case No. 2014CA00033 5
{¶11} Grace Burlingame appealed the trial court's decision to grant summary
judgment in favor of the City of Canton and Coombs. In Burlingame v. Estate of
Burlingame, 5th Dist. Stark Nos. 2010CA00124, 2010CA00130, 2011-Ohio-1325
("Burlingame I"), this court reversed the decision of the trial court to grant summary
judgment. We found that a firefighter's alleged violations of traffic statutes and
departmental policies were factors a jury could consider to determine whether the
officer's conduct was reckless for purposes of overcoming statutory immunity. We
further found there were genuine issues of material fact as to whether the firefighter
acted wantonly or recklessly to preclude summary judgment in favor of the City of
Canton and Coombs.
{¶12} The City of Canton and Coombs appealed our decision in Burlingame I to
the Ohio Supreme Court. The Supreme Court accepted the discretionary appeal. See
Burlingame v. Estate of Burlingame, 129 Ohio St.3d 1449, 2011-Ohio-4217, 951 N.E.2d
1046.
{¶13} On December 6, 2012, the Supreme Court sua sponte reversed our
decision in Burlingame I based on the authority of Anderson v. Massillon, 134 Ohio
St.3d 380, 2012-Ohio-5711, 983 N.E.2d 266. The Court remanded the case to the court
of appeals for further proceedings consistent with the Court's opinion in Anderson v.
Massillon. See Burlingame v. Estate of Burlingame, 134 Ohio St.3d 490, 2012-Ohio-
5698, 983 N.E.2d 1252.
{¶14} Upon remand, this Court permitted the parties to brief the issue of whether
our decision in Burlingame I should be modified in light of the Supreme Court's decision
Stark County, Case No. 2014CA00033 6
in Anderson v. Massillon. See Burlingame v. Estate of Burlingame, 5th Dist. Stark Nos.
2010CA00124, 2010CA00130, 2013-Ohio-3447, ¶ 1.
{¶15} On August 5, 2013, we issued our decision in Burlingame v. Estate of
Burlingame, 5th Dist. Stark Nos. 2010CA00124, 2010CA00130, 2013-Ohio-3447
("Burlingame II"). We considered the appeal under the guidelines of Anderson v.
Massillon and held the trial court erred in granting summary judgment. We stated:
The trial court must apply the definitions of willful, wanton, and
reckless conduct as now defined by the Ohio Supreme Court in Anderson.
Additionally, the trial court erred in the case at bar in finding violations of
internal departmental policies are not relevant to a finding of malice, bad
faith or wanton or reckless manner. 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. Anderson, paragraph five of the
syllabus.
Burlingame II, supra at ¶ 9. The matter was remanded to the trial court for further
proceedings consistent with our opinion and law. Id. at ¶ 10.
{¶16} Upon remand, the trial court issued a judgment entry on February 7, 2014.
The trial court stated in its judgment entry, "[t]he Fifth District Court of Appeals has twice
ruled that factual issues exist and that summary judgment is not proper. This Court is
bound by the explicit and express language of the higher court rulings. It is abundantly
clear that the Fifth District has determined that this case is one where issues remain for
Stark County, Case No. 2014CA00033 7
the finder of fact and that summary judgment does not apply as a matter of law. The
Motion for Summary Judgment is therefore denied." (Judgment Entry, Feb. 7, 2014).
{¶17} It is from this decision the City of Canton and Coombs now appeal.
ASSIGNMENTS OF ERROR
{¶18} The City of Canton raises two Assignments of Error:
{¶19} "I. THE TRIAL COURT ERRED IN FINDING THAT FACTUAL ISSUES
EXIST, AND BY FAILING TO ANALYZE THE UNDISPUTED FACTS TO THE
SUPREME COURT'S HOLDING IN ANDERSON V. MASSILLON.
{¶20} "II. THE APPELLANTS ARE ENTITLED TO SUMMARY JUDGMENT
BECAUSE MR. COOMBS DID NOT INTENTIONALLY VIOLATE ANY TRAFFIC
STATUTES OR DEPARTMENTAL RULES, AND THERE WAS NO OTHER EVIDENCE
THAT HE ACTED MALICIOUSLY, WITH BAD FAITH, OR CONSCIOUSLY
DISREGARDED A KNOWN RISK."
ANALYSIS
I. and II.
Standard of Review
{¶21} The Assignments of Error concern the trial court's judgment entry denying
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
Stark County, Case No. 2014CA00033 8
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
summary judgment is made, such party being entitled to have the
evidence or stipulation construed most strongly in the party's favor.
{¶22} 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).
{¶23} 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).
{¶24} When reviewing a trial court's decision to grant summary judgment, an
appellate court applies the same standard used by the trial court. Smiddy v. The
Wedding Party, Inc., 30 Ohio St.3d 35, 506 N.E.2d 212 (1987). The appellate court
Stark County, Case No. 2014CA00033 9
reviews the motion for summary judgment de novo. Doe v. Shaffer, 90 Ohio St.3d 388,
2000–Ohio–186, 738 N.E.2d 1243.
Genuine Issues of Material Fact
{¶25} Through the numerous proceedings at all court levels, the evidence in this
case presented pursuant to Civ.R. 56 has not changed. This court has had the
opportunity to conduct a summary judgment analysis of the Civ.R. 56 evidence in
Burlingame I, Burlingame II, and the current appeal. In Burlingame II, we conducted our
analysis of the Civ.R. 56 evidence with the benefit of the guidance of Anderson v.
Massillon.
{¶26} In the present case, we again conduct a de novo review and consider the
evidence in a light most favorable to the nonmoving party. We find there are genuine
issues of material fact that overcome a finding of judgment as a matter of law in favor of
the City of Canton and Coombs. Reasonable minds could come to differing conclusions
as to whether the City of Canton and Coombs are liable for the injuries to the
Burlingames or whether statutory immunity applies.
{¶27} Accordingly, the two Assignments of Error of the City of Canton and
Coombs are overruled.
Stark County, Case No. 2014CA00033 10
CONCLUSION
{¶28} The judgment of the Stark County Court of Common Pleas is affirmed.
By: Delaney, J.,
Hoffman, P.J. and.
Baldwin, J., concur.