Woollacott v. Andreas

[Cite as Woollacott v. Andreas, 2014-Ohio-1079.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION

No. 100168

DONNA WOOLLACOTT, ET AL.

PLAINTIFFS-APPELLEES

vs.

BRIAN ANDREAS, ET AL.

DEFENDANTS-APPELLANTS

JUDGMENT:

AFFIRMED

Civil Appeal from the

Cuyahoga County Court of Common Pleas

Case No. CV-12-783243

BEFORE: Kilbane, J., Jones, P.J., and E.A. Gallagher, J.

RELEASED AND JOURNALIZED: March 20, 2014

ATTORNEYS FOR APPELLANTS

Michael E. Cicero

Vincent A. Feudo

Nicola, Gudbranson & Cooper

1400 Republic Building

25 West Prospect Avenue

Cleveland, Ohio 44115

John J. Montello

Law Director

City of Maple Heights

5353 Lee Road

Maple Heights, Ohio 44137

ATTORNEYS FOR APPELLEES

Egan P. Kilbane

Kimberly C. Young

Elk & Elk Co., Ltd.

6105 Parkland Boulevard

Mayfield Heights, Ohio 44124

MARY EILEEN KILBANE, J.:

{¶1} Defendant-appellant, Vicki Anderson (“Anderson”), a dispatcher with the

city of Maple Heights, appeals from the order of the trial court that denied her motion for

summary judgment in a wrongful death action filed by plaintiff-appellee, Donna

Woollacott (“plaintiff”), in connection with the death of her husband, John Woollacott

(“Woollacott”). Anderson assigns the following error for our review:

I. The trial court erred in denying Appellant Vicki Anderson’s motion

for summary judgment on the issue of immunity pursuant to O.R.C.

Chapter 2744.

{¶2} Having reviewed the record, we agree with the trial court’s finding that

Anderson is not entitled to judgment as a matter of law, therefore, we affirm.

{¶3} In the early morning hours of May 23, 2010, 59-year-old Woollacott

experienced difficulty breathing. At 1:48 a.m., plaintiff dialed 911 and requested

emergency assistance. She provided her Maple Heights address to the dispatcher, trainee

Brian Andreas (“Andreas”), who was under the supervision of Anderson. At the time of

this call, all of the Maple Heights rescue squads were out on other calls, but other “first

responders” were available. Anderson logged onto a computer and retrieved an email

regarding recent amendments to the city’s standard operating procedure for requesting

mutual aid from other communities. Anderson interpreted the email to authorize the

dispatcher to make the decision as to which community to call for mutual aid in

requesting a rescue squad. In reality, however, the information provided in the email had

no bearing on the situation at hand, and in conformance with the city’s actual procedure,

Anderson should have requested that another first responder go to the scene, and then,

with the assistance of the Mutual Aid Box Alarm System (“MABAS”), determine which

community to call for mutual assistance.

{¶4} To request mutual aid, Andreas dialed a telephone number provided by

Anderson, which Anderson believed to be the neighboring Garfield Heights Fire

Department. In actuality, Anderson provided the telephone number for the Warrensville

Heights Fire Department.

{¶5} After six minutes from plaintiff’s initial call, assistance had not arrived, so

plaintiff placed a second 911 call at 1:54 a.m. In response to the second call, Andreas, at

the direction of Anderson, called the Maple Heights Fire Station 2 to request assistance

for Woollacott. He also called the Garfield Heights Fire Department to follow-up on his

earlier call for mutual aid. During this call, Andreas learned that the first call for mutual

aid did not reach the Garfield Heights Fire Department.

{¶6} Engine No. 2, sent from the Maple Heights Fire Station 2, reached

Woollacott at 1:58 a.m. At that point, Woollacott was unresponsive. He was wedged

between a doorway, and the firefighters could not move him. They gave Woollacott

CPR and attached a heart AED. At 2:00 a.m., Engine No. 2 advised Maple Heights

Dispatch to request any and all Maple Heights equipment to assist and to inform the

Garfield Heights Fire Department of a full cardiac arrest. In response to this call,

Garfield Heights dispatchers stated that they did not have a squad en route to Maple

Heights, and following further conversation with Anderson, dispatched a rescue squad at

2:02 a.m. At 2:08, the Warrensville Heights rescue squad arrived on the scene.

Woollacott was transferred from his home at 2:23 a.m., and arrived at Marymount

Hospital at 2:28 a.m. At 2:52 a.m., he was pronounced dead.

{¶7} On May 22, 2012, plaintiff filed this action against the city of Maple

Heights and various defendants. On August 21, 2012, the trial court determined Maple

Heights to be entitled to sovereign immunity in connection with this matter, and it granted

the city’s motion to dismiss.

{¶8} On October 19, 2012, plaintiff filed an amended complaint against the

Maple Heights fire chief, Andreas, and Anderson. Plaintiff maintained that Maple

Heights Fire Station 2 is less than one-half mile away from her home, and that if properly

summoned, it would have reached Woollacott in approximately two minutes. Plaintiff

alleged that the dispatchers engaged in willful, wanton, and/or reckless misconduct in

handling the 911 call. She set forth claims for wrongful death and survivorship,

infliction of emotional distress, and failure to train. Andreas and the fire chief were

subsequently dismissed from the action, and the matter remained pending solely against

Anderson.

{¶9} On March 27, 2013, Anderson moved for summary judgment, asserting that

she is entitled to sovereign immunity under R.C. 2744.03(A)(6). In opposition, plaintiff

asserted that Anderson acted recklessly by: (1) taking no action during the four minute

period in which she reviewed emails regarding appropriate protocols; (2) failing to

immediately dispatch a first responder to Woollacott; (3) giving Andreas the wrong

telephone number to call for mutual aid; (4) stopping Andreas from obtaining the correct

number; and (5) failing to consult the MABAS system for mutual aid.

{¶10} On July 23, 2013, the trial court denied Anderson’s motion for summary

judgment in a seven-page opinion. Anderson now appeals.1

Summary Judgment

{¶11} This court reviews a trial court’s decision on summary judgment under a de

novo standard of review. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105,

1996-Ohio-336, 671 N.E.2d 241; Mitnaul v. Fairmount Presbyterian Church, 149 Ohio

App.3d 769, 2002-Ohio-5833, 778 N.E.2d 1093 (8th Dist.).

{¶12} Pursuant to Civ.R. 56(C), summary judgment is proper if:

(1) No genuine issue as to any material fact remains to be litigated; (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,

and viewing such evidence most strongly in favor of the party against whom

the motion for summary judgment is made, that conclusion is adverse to

that party.

Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977).

{¶13} Once a moving party satisfies its burden of supporting its motion for

summary judgment with sufficient and acceptable evidence pursuant to Civ.R. 56(C), the

nonmoving party must set forth specific facts demonstrating that a “genuine triable issue”

1The denial of a motion to dismiss on sovereign immunity grounds is a final

appealable order. Lowery v. Cleveland, 8th Dist. Cuyahoga No. 90246,

2008-Ohio-132, ¶ 4; R.C. 2744.02(C).

exists to be litigated for trial. State ex rel. Zimmerman v. Tompkins, 75 Ohio St.3d 447,

449, 1996-Ohio-211, 663 N.E.2d 639.

Sovereign Immunity

{¶14} A three-tier analysis governs the application of sovereign immunity to a

political subdivision pursuant to Chapter 2744 of the Ohio Revised Code. See Cramer v.

Auglaize Acres, 113 Ohio St.3d 266, 2007-Ohio-1946, 865 N.E.2d 9, ¶ 14-16; Colbert v.

Cleveland, 99 Ohio St.3d 215, 2003-Ohio-3319, 790 N.E.2d 781, ¶ 7-9.

{¶15} Immunity is also extended to individual employees of political subdivisions.

R.C. 2744.03(A)(6); Cramer at ¶ 17. Pursuant to this statute, an employee is immune

from liability unless the employee’s actions or omissions are manifestly outside the scope

of employment or the employee’s official responsibilities, the employee’s acts or

omissions were malicious, in bad faith, or wanton or reckless, or liability is expressly

imposed upon the employee by a section of the Revised Code. Id.

{¶16} In Anderson v. Massillon, 134 Ohio St.3d 380, 2012-Ohio-5711, 983 N.E.2d

266, ¶ 32-34, the Ohio Supreme Court defined the terms “willful, wanton, and reckless

conduct” for purposes of the sovereign immunity statutes, and stated:

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. [520], 527, 80 N.E.2d 122 [(1948)]; 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 [v. Ivy, 50 Ohio St.2d 114,

117-118, 363 N.E.2d 367 (1977)]; 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).

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 [v. McNeill, 53 Ohio St.3d 102, 559 N.E.2d

705 (1990),] adopting 2 Restatement of the Law 2d, Torts, 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).

Accord O’Toole v. Denihan, 118 Ohio St.3d 374, 2008-Ohio-2574, 889 N.E.2d 505, ¶

73-75. In O’Toole, the Ohio Supreme Court defined reckless conduct for purposes of

statutory political subdivision immunity and stated:

An actor’s conduct “is in reckless disregard of the safety of others if he

does an act or intentionally fails to do an act which it is his duty to the other

to do, knowing or having reason to know of facts which would lead a

reasonable man to realize, not only that his conduct creates an unreasonable

risk of physical harm to another, but also that such risk is substantially

greater than that which is necessary to make his conduct negligent.”

[Thompson v. McNeill, 53 Ohio St.3d 102, 105-106, 559 N.E.2d 705

(1990)],quoting 2 Restatement of the Law 2d, Torts, Section 500, at 587

(1965). Distilled to its essence, and in the context of R.C.

2744.03(A)(6)(b), recklessness is a perverse disregard of a known risk.

Recklessness, therefore, necessarily requires something more than mere

negligence. [Fabrey v. McDonald Village Police Dept., 70 Ohio St.3d 351,

356, 1994-Ohio-368, 639 N.E.2d 31]. In fact, “the actor must be conscious

that his conduct will in all probability result in injury.”

Accord Lyons v. Teamhealth Midwest Cleveland, 8th Dist. Cuyahoga No. 96336,

2011-Ohio-5501, ¶ 61-62.

{¶17} With regard to the failure to follow departmental policies, the Anderson

court explained that “it 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.” Anderson, 134 Ohio St.3d 380, 2012-Ohio-5711, 983 N.E.2d 266, ¶ 37,

quoting 2 Restatement of the Law 2d, Torts, Section 500, at 587, comment e (1965). The

court observed at ¶ 38 that:

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.

{¶18} In Lyons, the dispatcher’s confusion over the location of a residential

address and an incorrect map prepared by the county engineer’s office, resulted in a delay

in the arrival of an ambulance, and a minor in need of medical attention died. In

affirming the denial of summary judgment, this court concluded that a jury question was

presented regarding the issue of the dispatcher’s recklessness. Id. at ¶ 64.

{¶19} In this matter, Anderson’s motion for summary judgment states that at 1:48

a.m., plaintiff made the first call for assistance and Anderson consulted her materials,

albeit incorrectly, and made the decision to call for mutual aid rather than requesting aid

from a two-man fire engine with only basic life-saving equipment. Through

inadvertence, she gave the trainee the telephone number for Warrensville Heights, rather

than Garfield Heights, and that Warrensville Heights did not identify itself when

receiving that call. A report conducted by the communications supervisor, Kelly Brown

(“Brown”), concluded that at the time of plaintiff’s first 911 call, equipment and

firefighters assigned to Station 1 were dispatched to a motor vehicle accident. Rescue

Squad 2 and the firefighters assigned to that unit were assigned to a squad call. At 1:54

a.m., Andreas received plaintiff’s second call. At that point, Anderson determined that

Garfield Heights was the closest available department to call for mutual aid, but through

inadvertence, gave Andreas the telephone number for the Warrensville Heights Fire

Department. After obtaining this incorrect phone number from Anderson, Andreas

requested mutual aid from Warrensville Heights.

{¶20} Warrensville Heights accepted the mutual aid call and dispatched a squad,

and at 1:54 a.m. Anderson advised the officer-in-charge that Garfield Heights was

responding. The officer-in-charge instructed Anderson to send Maple Heights Engine 2

as a first responder, and at 1:58 a.m., Engine 2 was called out. Brown’s report

acknowledged that Anderson erred by failing to follow the standard operating procedure

regarding sending a first responder before requesting mutual aid. She also failed to

follow procedures in obtaining mutual aid. According to Brown’s report, however, the

error did not add to the delay in obtaining mutual aid.

{¶21} Anderson established that the Warrensville Heights squad arrived at 2:08

a.m. She also submitted the testimony from firefighter Dave Gustley who stated that it

took a total of six people to move Woollacott because of his size and the position in

which he was lodged inside the house.

{¶22} Anderson maintained that the violations of departmental policies did not rise

to the level of recklessness because the circumstances did not demonstrate a perverse

disregard of the risks involved. Anderson argues that she did not intend to cause harm

and did not breach a departmental policy through ill will, malicious purpose, in bad faith,

with a dishonest purpose or with an ulterior motive, and therefore, she is entitled to

immunity under R.C. 2744.03(A)(6).

{¶23} In opposition, plaintiff submitted tapes of the 911 calls, the depositions of

Anderson, Andreas, dispatcher supervisor Vikki Milano, and the affidavit of expert

lieutenant paramedic and active instructor Jay Northup. Plaintiff’s evidence indicated

that it took Anderson four minutes to check her email regarding protocol changes;2 she

did not follow long-standing protocol that requires the immediate dispatch of a first

responder; that she provided Andreas with the wrong telephone number for mutual aid;

stopped him as he attempted to look up the number for requesting an ambulance from

2This email provided in relevant part:

If mutual aid is needed by our City for whatever reason (squad, engine,

etc.) it will no longer be necessary to ask the OIC who to call. The

Dispatcher will refer to the MABAS list in the SOP book to call for

mutual aid, choosing the closest city. After the equipment is

responding the Dispatcher will notify the OIC who is responding.

Garfield Heights; failed to verify that the appropriate responder was called; and failed to

consult the MABAS system. Plaintiff’s evidence also indicated that Anderson was

aware that “a dispatcher is the vital link between the person in need of service and the

medical attention or emergency service they require.” She was also aware that

“following procedures and protocols that you’re trained in and instructed upon is essential

to make sure that people don’t suffer serious harm or death.” Plaintiff therefore argued

that there is a genuine issue of material fact regarding whether Anderson was reckless.

{¶24} The trial court, framing the issue in terms of departmental policy violations,

and applying the analysis set forth in Anderson, 134 Ohio St.3d 380, 2012-Ohio-5711,

983 N.E.2d 266, ¶ 37-38, concluded as follows:

While this Court is aware that first responders cannot and should not be

held to a level of perfection, this case does not present a simple set of facts

where a single instance of negligence occurred. Rather, the course of

conduct involves numerous acts, many of which were questionable at best.

Defendant’s knowledge that serious injury or death could result from the

failure to follow established procedures and protocols taken with the

numerous apparent missteps and delays precludes this Court from finding a

lack of recklessness as a matter of law. The series of apparent missteps

and delays gives rise to legitimate and genuine issues of material fact that

should be determined by a jury after thorough review of the evidence and

testimony concerning the disputed facts at issue.

{¶25} We concur with this analysis. The evidence presented in this matter was

sufficient to establish a jury question regarding whether Anderson was reckless within the

meaning of R.C. 2744.03(A)(6). Under these circumstances, summary judgment is

inappropriate. Accord Lyons, 8th Dist. Cuyahoga No. 96336, 2011-Ohio-5501, ¶ 61-62.

{¶26} Further, insofar as Anderson asserts that she is entitled to summary

judgment on plaintiff’s claim for infliction of emotional distress, we note that this tort can

be caused where one “who by extreme and outrageous conduct intentionally or recklessly

causes severe emotional distress to another is subject to liability for such emotional

distress, and if some bodily harm to the other results from it, for such bodily harm.”

Yeager v. Local Union 20, Teamsters, Chauffeurs, Warehousemen & Helpers of Am., 6

Ohio St.3d 369, 374, 453 N.E.2d 666 (1983). Accordingly, the genuine issues of

material fact regarding Anderson’s recklessness likewise prevent her from obtaining

summary judgment as to this claim for relief.

{¶27} The sole assignment of error is without merit.

{¶28} Judgment is affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

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.

MARY EILEEN KILBANE, JUDGE

LARRY A. JONES, SR., P.J., and

EILEEN A. GALLAGHER, J., CONCUR