[Cite as Ogburn v. Toledo, 2019-Ohio-163.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
Linda H. Ogburn, etc. Court of Appeals No. L-18-1045
Appellant Trial Court No. CI0201602165
v.
City of Toledo DECISION AND JUDGMENT
Appellee Decided: January 18, 2019
*****
Robert M. Scott, for appellant.
Dale R. Emch, Director of Law, Jeffrey B. Charles, Chief of
Litigation, and Merritt W. Green III, Senior Attorney, for appellee.
*****
JENSEN, J.
I. Introduction
{¶ 1} This is an appeal from the judgment of the Lucas County Court of Common
Pleas, granting summary judgment in favor of appellee, the city of Toledo, and
dismissing the wrongful death action brought by appellant, Linda Ogburn.
A. Facts and Procedural Background
{¶ 2} On April 1, 2016, appellant, acting as personal representative and
administratrix of the estate of Lonnie Holmes, filed a wrongful death complaint with the
trial court, in which she alleged that Holmes was injured, and ultimately died three days
later, when he was struck by a fire hose that had broken free from one of the Toledo Fire
and Rescue Department’s (TFRD) fire engines, Engine No. 9, as it was responding to an
emergency call on October 18, 2014. Appellant asserted that the city’s agents (the TFRD
and its firefighters) intentionally removed a safety device from the truck that was
designed to secure the hose while the truck was in operation. Appellant further alleged
that the intentional removal of the safety device constituted willful and/or wanton
misconduct, thereby eliminating the city’s immunity under Chapter 2744 of the Ohio
Revised Code.
{¶ 3} On June 20, 2016, the city responded to appellant’s complaint by the filing
of an answer, in which it denied liability and asserted several affirmative defenses,
including immunity under Chapter 2744 of the Ohio Revised Code. Thereafter, appellant
engaged in discovery, ultimately deposing the four firefighters that operated Engine No. 9
on October 18, 2014, as well as the TFRD’s fire maintenance officer. Additionally,
appellant retained the services of Leo Debobes, an expert witness in the field of fire
department practices and safety.
{¶ 4} Seven months after the city submitted its answer, it filed a motion for
summary judgment. In its motion, the city argued that it was entitled to immunity under
2.
R.C. 2744.02(B) because Engine No. 9 was on an emergency call at the time of the injury
and there was no evidence of willful or wanton misconduct on the part of the city. While
the city acknowledged that its agents had removed the safety net that was installed on
Engine No. 9 by the manufacturer, it argued that it did not act without care with respect
to the fire hoses because it installed holsters on its fire engines that housed the fire hose
nozzles. The city urged that the holsters were reasonable replacements for the safety
nets, as they were also designed to secure the fire hoses and were necessary in order to
aid firefighters in quickly and efficiently putting out fires. Further, the city rejected any
contention that it acted with knowledge or appreciation of the likelihood of injury where
there had been no incidents concerning the inadvertent release of hoses on its fire engines
since it replaced the safety nets with holsters several years prior.
{¶ 5} On May 31, 2017, appellant filed her memorandum in opposition to the
city’s motion for summary judgment. In her memorandum, appellant contended that the
city willfully and wantonly violated the applicable standard in this case, which appellant
claimed was set by the National Fire Protection Association in NFPA 1901 15.10.7 and
A.15.10.7, by intentionally removing the safety nets from Engine No. 9.1 As to the city’s
1
NFPA 1901 15.10.7 and A.15.10.7 provides:
15.10.7 Any hose storage area shall be equipped with a positive
means to prevent unintentional deployment of the hose from the top, sides,
front, and rear of the hose storage area while the apparatus is underway in
normal operations.
3.
claimed lack of knowledge of any danger arising from the removal of the safety nets,
appellant argued that such danger was widely known in the industry and formed the basis
for the NFPA’s promulgation of NFPA 1901 15.10.7 and A.15.10.7. Further, appellant
argued that the city’s installation of a holster for the hose nozzle was not a sufficient
replacement for the safety net that was installed on Engine No. 9 by the manufacturer,
because the holster would not prevent the hose itself from unraveling and falling off of
the fire engine during an emergency run. Therefore, appellant urged that there was a
genuine issue of material fact as to whether the city operated Engine No. 9 in a willful or
wanton manner and, as such, summary judgment was inappropriate.
{¶ 6} In support of her argument, appellant referenced Debobes’ expert opinion
that the NFPA’s published standards are authoritative standards that must be followed by
all fire departments in the United States. In his affidavit, which was attached to
A.15.10.7 Many fire departments have experienced fire hose
inadvertently coming off fire apparatus while traveling to and from
incidents. Several incidents have resulted in personal injury and damage to
property. At least one death is directly attributable to an unintentional
deployment of fire hose during a response. It is imperative that the fire
apparatus manufacturer provide and the fire department use a means to
assure this does not occur.
Fire departments and manufacturers have developed various
methods of preventing inadvertent deployment of fire hose including: fully
enclosed hose beds covers, buckled straps, hook and loop straps, fabric
covers, webbing mesh, wind deflectors, and other material restraints or
combination of restraints. It is also important that fire departments develop
methods of storing hose connected nozzles and appliances in a manner that
does not promote the inadvertent deployment of the hose, nozzle or
appliance.
4.
appellant’s memorandum, Debobes testified that the city violated NFPA 1901 15.10.7
and A.15.10.7 by removing the safety net from its fire engines, and further opined that
this violation constituted willful and wanton misconduct reflecting a serious disregard for
public safety. Debobes went on to state that the city’s removal of the safety net in this
case proximately caused Holmes’ injury and subsequent death.
{¶ 7} On August 18, 2017, the city filed its reply to appellant’s memorandum in
opposition, in which it argued that appellant was incorrect in her assertion that NFPA
1901 15.10.7 and A.15.10.7 constituted a legal standard to which the city was bound.
According to the city, NFPA 1901 15.10.7 and A.15.10.7 have not been adopted by the
Ohio Administrative Code, the Ohio Revised Code, or the TFRD. Thus, the city asserted
that appellant’s reliance on NFPA 1901 15.10.7 and A.15.10.7 was misplaced.
Nonetheless, the city asserted that its installation of holsters in place of the safety nets
was in compliance with NFPA 1901 15.10.7 and A.15.10.7. Further, the city argued that
Debobes’ legal conclusions contained in his affidavit were inadmissible and should be
disregarded by the trial court. Ultimately, the city asserted that appellant failed to
introduce any evidence to establish that it acted willfully or wantonly with respect to its
removal of the safety net from Engine No. 9.
{¶ 8} Upon consideration of the foregoing arguments, the trial court issued its
decision on February 9, 2018. In its decision, the trial court found that NFPA 1901
15.10.7 and A.15.10.7 constituted a binding legal standard of care in this case, based
upon Debobes’ expert testimony and the NFPA publication that was contained in the
5.
record. After examining the language contained in NFPA 1901 15.10.7, the trial court
found that reasonable minds could conclude that the city’s use of nozzle holsters as a
substitute for safety nets constituted a breach of the standard of care set forth in NFPA
1901 15.10.7 and A.15.10.7. However, the court found that the alleged breach was at
most negligent, and could not be construed as willful or wanton.
{¶ 9} Referencing the deposition testimony of the city’s fire maintenance officer,
the court found that the city’s removal of the safety nets was brought about by firefighter
safety concerns posed by the safety nets hanging off the back of the fire engine when the
fire hoses were deployed, causing the hoses to tangle and tripping firefighters. The court
concluded that the city installed holsters in place of the nets as a means to secure the fire
hoses and expedite deployment during an emergency. Thus, the court found that
reasonable minds could only find that the city did not fail to exercise any care or intend to
cause harm when it removed the safety nets and installed the holsters. Further, the court
noted that the city’s installation of holsters in place of safety nets proved to be “one-
hundred percent effective” at securing fire hoses on the city’s fire engines for the seven
years between installation of the holsters and Holmes’ injury. Given this track record, the
court found that reasonable minds could only conclude that the risk of injury stemming
from the removal of the safety nets was less than probable, and thus the city’s removal of
said nets could not constitute willful or wanton misconduct.
{¶ 10} Having concluded that appellant failed to demonstrate willful or wanton
misconduct on the part of the city concerning its replacement of the safety net on Engine
6.
No. 9 with a nozzle holster, the trial court found that the city was entitled to immunity
under R.C. 2744.02(B), and granted the city’s motion for summary judgment.
B. Assignments of Error
{¶ 11} Following the trial court’s grant of summary judgment to the city, appellant
filed her timely notice of appeal, in which she raises the following assignments of error
for our review:
Assignment of error No. 1: The trial court erred in granting
summary judgment as material questions of fact exist regarding whether
appellee city of Toledo is entitled to the immunity afforded by R.C.
2744.02 because the operation of Engine No. 9 on October 18, 2014
constituted willful or wanton misconduct.
Assignment of error No. 2: The trial court erred by failing to
construe the evidence in a light most favorable to appellant as the non-
moving party.
II. Analysis
{¶ 12} In her assignments of error, appellant argues that the trial court erred in
granting the city’s motion for summary judgment. Specifically, appellant contends that
the city was not entitled to summary judgment on her wrongful death claim because
material questions of fact existed on the issue of whether the city committed willful or
wanton misconduct, thereby negating the city’s immunity under R.C. 2744.02. Because
appellant’s assignments of error are interrelated, we will address them simultaneously.
7.
A. Standard of Review
{¶ 13} A motion for summary judgment is reviewed de novo by an appellate court.
Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). “When
reviewing a trial court’s ruling on summary judgment the court of appeals conducts an
independent review of the record and stands in the shoes of the trial court.” Baker v.
Buschman Co., 127 Ohio App.3d 561, 566, 713 N.E.2d 487 (12th Dist.1998).
{¶ 14} In order to obtain summary judgment at the trial level,
[I]t must be determined that (1) there is no genuine issue of material
fact; (2) the moving party is entitled to judgment as a matter of law; and
(3) it appears from the evidence that reasonable minds can come to but one
conclusion when viewing the evidence in favor of the nonmoving party,
and that conclusion is adverse to the nonmoving party. State ex rel. Cassels
v. Dayton City School Dist. Bd. of Edn., 69 Ohio St.3d 217, 219, 631
N.E.2d 150 (1994), citing Davis v. Loopco Industries, Inc., 66 Ohio St.3d
64, 65-66, 609 N.E.2d 144 (1993); see also Civ.R. 56(C).
B. The City is Immune from Liability on Appellant’s Wrongful Death Claim
{¶ 15} In her assignments of error, appellant argues that the trial court erred in
finding that the city was immune from liability on her wrongful death claim under R.C.
2744.02.
{¶ 16} When determining whether a political subdivision is immune from liability,
we engage in a “three-tiered analysis.” Rosenbrook v. Bd. of Lucas Cty. Commrs.,
8.
2015-Ohio-1793, 33 N.E.3d 562, ¶ 15 (6th Dist.), citing Elston v. Howland Local
Schools, 113 Ohio St.3d 314, 2007-Ohio-2070, 865 N.E.2d 845, ¶ 10. First, we examine
whether the general grant of immunity provided by R.C. 2744.02(A) applies. Id. If
immunity applies, we then examine whether immunity has been abrogated by the
exceptions set forth in R.C. 2744.02(B). Id. If an exception applies, the third tier
involves a determination of whether the political subdivision is able to successfully assert
one of the defenses listed in R.C. 2744.03, thereby reinstating its immunity. Id.
{¶ 17} Here, the city qualifies for immunity as a political subdivision under R.C.
2744.02(A). However, appellant argues that the city’s immunity has been abrogated
pursuant to R.C. 2744.02(B)(1).
{¶ 18} R.C. 2744.02(B)(1) provides:
(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 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
9.
believed to be in progress, or answering any other emergency alarm and the
operation of the vehicle did not constitute willful or wanton misconduct.
{¶ 19} It is undisputed that Holmes was injured when he was struck by a fire hose
that broke free from its restraints on Engine No. 9, a fire truck owned by the city and
operated by its employees. Moreover, it is clear that the firefighters were operating
within their scope of employment and authority and responding to an emergency call,
thereby triggering the heightened standard of “willful or wanton misconduct” under R.C.
2744.02(B)(1)(b). Accordingly, we must review whether the city’s operation of Engine
No. 9 without the manufacturer-installed safety net constituted misconduct sufficient to
remove the city from the statutory immunity set forth above.
{¶ 20} The Supreme Court of Ohio has defined the terms “willful” and “wanton,”
indicating that they are two distinct concepts. “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.” Anderson v. Massillon,
134 Ohio St.3d 380, 2012-Ohio-5711, 983 N.E.2d 266, paragraph two of the syllabus.
“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.”
Id. at paragraph three of the syllabus. These standards “describe conduct that is more
than mere negligence. * * * If reasonable minds could only conclude that the * * *
10.
conduct demonstrates, at most, negligence, then summary judgment is appropriate.”
Hoffman v. Gallia Cty. Sheriff’s Office, 2017-Ohio-9192, ¶ 47, 103 N.E.3d 1 (4th Dist.).
{¶ 21} Applying the foregoing standards to this case, appellant is required to
demonstrate that the city knew or should have known that injury to others would be the
probable result of removing the safety net on Engine No. 9 in order to establish willful
misconduct. Tighe v. Diamond, 149 Ohio St. 520, 527, 80 N.E.2d 122 (1948). Likewise,
in order to demonstrate wanton misconduct, appellant must demonstrate that the city
failed to exercise any care in circumstances in which there is great probability that harm
will result.
{¶ 22} The evidence contained in the record by way of deposition testimony
reveals that the city removed the safety nets on its fire engines to facilitate firefighter
safety, based upon incidents in which TFRD firefighters were tripped by the nets when
they were attempting to utilize fire hoses. According to TFRD’s fire maintenance officer,
the nets also slowed down firefighting efforts that are time-sensitive in nature. As a
result, TFRD decided to remove the safety nets and install holsters in their place. The
holsters that were installed eliminated the trip hazard presented by the nets, while at the
same time facilitating expedient use of the fire hoses. Since the nets were removed and
the holsters installed, the city has safely completed over one million runs without a fire
hose coming loose from a fire engine. To us, the fact that over one million runs have
taken place without incident demonstrates that injury to others does not ordinarily follow
from the removal of safety nets and installation of the holsters.
11.
{¶ 23} Notwithstanding that, appellant argues that the city was on notice of the
risk of injury attendant to the removal of the safety net, based upon the language
contained in NFPA 1901 15.10.7 and A.15.10.7. NFPA 1901 A.15.10.7 mentions the
fact that “[m]any fire departments have experienced fire hose inadvertently coming off
fire apparatus while traveling to and from incidents.” However, NFPA 1901 A.15.10.7
does not detail the circumstances surrounding the prior incidences in which hoses were
inadvertently unsecured from fire engines, and fails to identify whether the fire engines
involved in those incidences utilized a nozzle holster system similar to the one deployed
by the city. Further, there is no evidence that the firefighters involved in this case
actually knew of the NFPA provision when the safety nets were removed and replaced
with nozzle holsters. Thus, the record does not support a finding that the city failed to
exercise any care or intended to harm others when it removed the safety net on Engine
No. 9.
{¶ 24} In light of the foregoing, we conclude that the evidence, construed in a light
most favorable to appellant as the nonmoving party, could only lead a reasonable person
to conclude that the city’s removal of the safety net on Engine No. 9 did not rise to the
level of willful or wanton misconduct. Consequently, the trial court did not err in
awarding summary judgment to the city after concluding that the city is entitled to
immunity on appellant’s wrongful death claim.
{¶ 25} Accordingly, appellant’s assignments of error are not well-taken.
12.
III. Conclusion
{¶ 26} Based on the foregoing, the judgment of the Lucas County Court of
Common Pleas is affirmed. Costs are hereby assessed to appellant in accordance with
App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Thomas J. Osowik, J. _______________________________
JUDGE
James D. Jensen, J.
_______________________________
Christine E. Mayle, P.J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
13.
Ogburn v. Toledo
Combined Opinion