[Cite as Burlingame v. Estate of Burlingame, 2011-Ohio-1325.]


                                         COURT OF APPEALS
                                        STARK COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT

                                                             JUDGES:
GRACE BURLINGAME                                    :        Hon. W. Scott Gwin, P.J.
                                                    :        Hon. William B. Hoffman, J.
                      Plaintiff-Appellant           :        Hon. John W. Wise, J.
                                                    :
-vs-                                                :
                                                    :        Case No.           2010-CA-00124
ESTATE OF DALE BURLINGAME,                          :                           2010-CA-00130
ET AL                                               :
                                                    :        OPINION
                   Defendants-Appellants

And


JAMES R. COOMBS, II., ET AL

                      Defendants-Appellees



CHARACTER OF PROCEEDING:                                Civil appeal from the Stark County Court of
                                                        Common Pleas, Case No. 2009CV00689

JUDGMENT:                                               Reversed and Remanded

DATE OF JUDGMENT ENTRY:                                 March 21, 2011

APPEARANCES:

For Plaintiff-Appellant, James Burlingame,              For Defendant-Appellee Canton City Fire
Administrator of Estate of Grace                        Department, Canton City Hall and James R. Combs
Burlingame, Deceased

ELIZABETH A. BURICK                                     KRISTEN BATES AYLWARD
1428 Market Avenue North                                KEVIN L'HOMMEDIEU
Canton, OH 44714                                        Canton Law Department
                                                        City Hall
                                                        Canton, OH

For Appellant Eva Finley, Administrator                 For Appellant Eva Finley, Administrator
THOMAS LOMBARDI                                         ORVILLE L. REED, III
101 Central Plaza S., Ste 900                           Buckingham, Doolittle & Burroughs, LLP
Chase Tower                                             3800 Embassy Parkway, Suite 300
Canton, OH 44702                                        Akron, OH 44333
[Cite as Burlingame v. Estate of Burlingame, 2011-Ohio-1325.]


Gwin, P.J.

        {¶1} Plaintiff-appellant Joseph Burlingame, as the representative of the Estate of

Grace     Burlingame,       deceased,       and    defendant-appellant,   Eva    Finley,   as   the

representative of the Estate of Dale Burlingame, deceased, appeal a summary

judgment of the Court of Common Pleas of Stark County, Ohio, which found

defendants-appellees the City of Canton and its employee James R. Coombs II are

entitled to immunity from liability arising out of an accident between the decedent’s

vehicle and a Canton City fire truck. Appellant assigns a single error to the trial court:

        {¶2} “I.     THE        TRIAL       COURT          ERRED    WHEN         IT    GRANTED

DEFENDANTS/APPELLEES’                   MOTION          FOR     SUMMARY         JUDGMENT        AS

REASONABLE MINDS COULD CONCLUDE THAT DEFENDANTS/APPELLEES

OPERATED THE VEHICLE IN A WANTON, WILLFUL AND/OR RECKLESS

MANNER.”

        {¶3} In the case before us, we are asked to decide whether appellees the City of

Canton, and its employee James R. Coombs, II are entitled to immunity from liability in

the operation of a fire truck that was involved in an accident with the decedent’s van.

For the reasons that follow, we hold that based upon the record of the case before us,

reasonable minds could differ regarding whether they are.

        {¶4} First, appellee the City of Canton has a complete defense to liability if, as

the trial court found, the operation of the fire truck was not willful or wanton, and it was

answering an emergency call. Similarly, the employees of the political subdivision such

as appellee Coombs are also immune unless the employee’s acts or omissions were

done with malicious purpose, in bad faith, or in a wanton or reckless manner. R.C.
Stark County, Case No. 2010-CA-00124 & 2010-CA-00130                                                           3


2744.03 (A)(6)(b). Second, traffic statutes and departmental policies are factors a jury

may consider in determining whether Coombs’ actions were reckless.                            Accordingly,

under the facts presented to the trial court, whether Coombs’ conduct in the operation of

the fire truck on July 4, 2007 rose to the level of willful or wanton is a genuine issue of

material fact for a jury to decide.

        {¶5} Accordingly, we reverse the judgment of the trial court.

                                                I. Relevant Background

        {¶6} On February 19, 2009, 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.1

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




1
  The claim against Motorists was that it should be required to set forth its subrogated claim to the extent
that it had one.
Stark County, Case No. 2010-CA-00124 & 2010-CA-00130                                     4


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.

       {¶7} The trial court decided this case in appellees favor by summary judgment.

We, therefore, construe the following facts from the record (which include depositions,

transcripts, affidavits, pictures, accident reports and the pleadings) in the light most

favorable to appellants. O’Toole v. Denihan, 118 Ohio St.3d 373, 889 N.E.2d 505,

2008-Ohio-2574 at ¶5. (Citing State ex rel. Zimmerman v Tompkins (1996), 75 Ohio

St.3d 447,448 663 N.E.2d 639).

       {¶8} On July 4, 2007, Appellants Grace and Dale Burlingame were heading

home after enjoying a family picnic at their granddaughter’s house.         On their route

home, Appellants were stopped at the red light at 18th Street, N.W., and Cleveland Ave,

N.W. in Canton. When his light turned green, Mr. Burlingame slowly pulled his vehicle

into the intersection to make a left turn. (Affidavit of Brooke James, filed by the City of

Canton and Coombs in support of their Motion for Summary Judgment).                Almost

immediately, the Burlingames’ vehicle was violently struck by Appellees’ 20-ton fire-

truck traveling at 40 mph from a perpendicular direction.          (Deposition of James R.

Coombs, II at 46).     Mr. Burlingame was killed instantly; Mrs. Burlingame sustained

serious personal injuries and later died from those injuries.

       {¶9} 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. (Deposition of Douglas E. Serban, City of Canton, Electronic
Stark County, Case No. 2010-CA-00124 & 2010-CA-00130                                     5


Computer Specialist at 12; 13; Coombs at 32, 44, and 45). It is the siren that initiates

the preemption system, not a horn or other device. (Serban at 19).

       {¶10} Coombs, who was driving, immediately activated the fire trucks lights and

siren after pulling out of the station. As he 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

the fire truck ordered Coombs to slow down and use the truck’s air horn to alert

motorists.

       {¶11} Testimony was presented that the City of Canton had trained its firefighters

to stop at red lights even when responding to emergency calls. (Deposition of Jerry

Ward, firefighter with the City of Canton, City employee for 21 years at 9). In addition,

the firefighters were trained that, if the siren malfunctioned during a run, to convert the

emergency response into a non-emergency. (Ward, supra at 14). In the case at bar,

Coombs continued to proceed in an emergency response mode in spite of the

malfunctioning siren. (Ward, supra at 15).

       {¶12} As Coombs approached the intersection on a red light, he could see the

cross-traffic stopped on 18th Street. (Sacco at 51; 52). 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. (Coombs deposition at 59).

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.

       {¶13} 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
Stark County, Case No. 2010-CA-00124 & 2010-CA-00130                                     6


his traffic light turn green, however it did not.     Coombs saw the van pull into the

intersection and attempted to avoid hitting it by swerving left of center.

          {¶14} Plaintiff’s expert witness Robert Krause offered his opinion that Captain

Sacco and firefighter Coombs knew or should have known that continuing an

emergency response without their siren caused a substantial risk of harm to the general

public.     A second expert witness Steven Wolfe offered an opinion based upon his

review, training and experience that Coombs’ actions arise to the standard of willful,

wanton and reckless conduct in the operation of the fire engine.

          {¶15} The City of Canton, Canton Fire Department and James R. Coombs, II

moved for summary judgment. The trial court found the evidence demonstrated that

appellee 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

appellee Coombs and the City of Canton had statutory immunity from the Burlingames’

suit.

                                           II. ANALYSIS

          {¶16} The issue before us is whether there is a genuine issue of material fact on

the issue of whether appellees are entitled to immunity under R.C. Chapter 2744.

          {¶17} Subject to a few exceptions, R.C. 2744.02(A)(1) provides that political

subdivisions are “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.” Likewise, immunity is extended, with several exceptions, to employees of
Stark County, Case No. 2010-CA-00124 & 2010-CA-00130                                       7

political subdivisions under R.C. 2744.03(A)(6). O’Toole v. Denihan, supra, 118 Ohio

St.3d at 381, 889 N.E.2d at 512-513, 2008-Ohio-2574 at ¶ 47.

          {¶18} Additionally, R.C. 2744.02(A) immunizes political subdivisions from actions

for personal injury or wrongful death except as provided in Division (B) of 2744.02. R.C.

2744.02(B)(1) provides that a political subdivision is liable for death or injuries resulting

from the negligent operation of a motor vehicle by an employee of the political

subdivision acting within the course of its employment. However, R.C. 2744.02(B)(1)(b)

provides that it is a full defense to the liability imposed by R.C. 2744.02(B)(1) upon the

City if a fire truck causes an accident while in progress to a place where a fire is in

progress unless the operator of the vehicle was operating the vehicle in a willful or

wanton manner. A political subdivision’s employee2 is also immune from liability for

personal injury or wrongful death unless his operation of the emergency vehicle was

performed with malicious purpose, in bad faith, or in a wanton or reckless manner.3

          {¶19} Thus, the issue at the summary judgment stage is whether viewing the

evidence most strongly in favor of the appellants, there is a genuine issue of material

fact as to whether Coombs’ conduct in the operation of the fire truck on July 4, 2007

was wanton or willful.

                                       A. Standard of Review

          {¶20} Summary judgment proceedings present the appellate court with the

unique opportunity of reviewing the evidence in the same manner as the trial court.

Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St.3d 35, 36, 506 N.E.2d 212. As

such, we must refer to Civ.R. 56(C).


2
    Coombs, in the case at bar.
3
    R.C. 2744.03(A)(6)(b).
Stark County, Case No. 2010-CA-00124 & 2010-CA-00130                                        8


       {¶21} Civ.R. 56(C) states that summary judgment shall be rendered forthwith if

"the pleadings, depositions, answers to interrogatories, written admissions, affidavits,

transcripts of evidence, 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.” Summary judgment is a procedural device to

terminate litigation, so it must be awarded cautiously with any doubts resolved in favor

of the nonmoving party. Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356, 358-359,

604 N.E.2d 138.

       {¶22} Accordingly, summary judgment is appropriate only where: (1) no genuine

issue of material fact remains to be litigated; (2) the moving party is entitled to judgment

as a matter of law; and (3) viewing the evidence most strongly in favor of the nonmoving

party, reasonable minds can come to but one conclusion and that conclusion is adverse

to the nonmoving party. Tokles & Son, Inc. v. Midwestern Indemn. Co. (1992), 65 Ohio

St.3d 621, 629, 605 N.E.2d 936, citing Harless v. Willis Day Warehousing Co. (1978),

54 Ohio St.2d 64, 65-66, 375 N.E.2d 46.

       {¶23} “Since summary judgment denies the party his or her ‘day in court’ it is not

to be viewed lightly as docket control or as a ‘little trial.’ The jurisprudence of summary

judgment standards has placed burdens on both the moving and the nonmoving party.

In Dresher v. Burt (1996), 75 Ohio St.3d 280, 293, 662 N.E.2d 264, the Supreme Court

of Ohio held that the moving party seeking summary judgment bears the initial burden

of informing the trial court of the basis for the motion and identifying those portions of

the record before the trial court that demonstrate the absence of a genuine issue of fact

on a material element of the nonmoving party’s claim. The evidence must be in the
Stark County, Case No. 2010-CA-00124 & 2010-CA-00130                                      9


record or the motion cannot succeed. The moving party cannot discharge its initial

burden under Civ.R. 56 simply by making a conclusory assertion that the nonmoving

party has no evidence to prove its case but must be able to specifically point to some

evidence of the type listed in Civ.R. 56(C) that affirmatively demonstrates that the

nonmoving party has no evidence to support the nonmoving party’s claims.              If the

moving party fails to satisfy its initial burden, the motion for summary judgment must be

denied. If the moving party has satisfied its initial burden, the nonmoving party has a

reciprocal burden outlined in the last sentence of Civ.R. 56(E) to set forth specific facts

showing there is a genuine issue for trial.      If the nonmoving party fails to do so,

summary judgment, if appropriate shall be entered against the nonmoving party based

on the principles that have been firmly established in Ohio for quite some time in Mitseff

v. Wheeler (1988), 38 Ohio St.3d 112,***.

       {¶24} “The Supreme Court in Dresher went on to hold that when neither the

moving nor nonmoving party provides evidentiary materials demonstrating that there are

no material facts in dispute, the moving party is not entitled to a judgment as a matter of

law as 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 which demonstrate the

absence of a genuine issue of fact on a material element of the nonmoving party’s

claim.’ Id. at 276. (Emphasis added.)” Welch v. Ziccarelli, 11th Dist. No. 2006-L-229,

2007-Ohio-4374, at ¶36-37, 40-42. (Parallel citations omitted.); Egli v. Congress Lake

Club 5th Dist. No. 2009CA00216, 2010-Ohio-2444 at ¶ 24-26.

       {¶25} In deciding whether there exists a genuine issue of fact, the evidence must

be viewed in the nonmovant's favor. Civ.R. 56(C). Even the inferences to be drawn
Stark County, Case No. 2010-CA-00124 & 2010-CA-00130                                    10


from the underlying facts contained in the evidentiary materials, such as affidavits and

depositions, must be construed in a light most favorable to the party opposing the

motion. Turner v. Turner (1993), 67 Ohio St.3d 337, 341, 617 N.E.2d 1123, 1127.

         {¶26} Appellate review of summary judgments is de novo.         Grafton v. Ohio

Edison Co. (1996), 77 Ohio St.3d 102, 105, 671 N.E.2d 241; Smiddy v. The Wedding

Party, Inc. (1987), 30 Ohio St.3d 35,506 N.E.2d 212. We stand in the shoes of the trial

court and conduct an independent review of the record. As such, we must affirm the

trial court's judgment if any of the grounds raised by the movant at the trial court is

found to support it, even if the trial court failed to consider those grounds. See Dresher,

supra; Coventry Twp. v. Ecker (1995), 101 Ohio App.3d 38, 41-42, 654 N.E.2d 1327;

Am. Fam. Ins. Co. v. Taylor, Muskingum App. No. CT2010-0014, 2010-Ohio-2756 at

25-31.

                         B. RECKLESS, WILLFUL OR WANTON CONDUCT

         {¶27} We turn to the issue of what constitutes willful, wanton, and reckless

conduct under R.C. 2744.

         {¶28} In Brockman v. Bell ( 1992), 78 Ohio App. 3d 508, 605 N.E. 2d 445, the

First District Court of Appeals observed that civil liability for negligence is predicated

upon injury caused by the failure to discharge a duty recognized in law and owed to the

injured party. The existence of a duty depends on the foreseeability of the injury. The

test for foreseeability is whether a reasonably prudent person, under the same or similar

circumstances, should have anticipated that injury to another was the probable result of

his performance or nonperformance of an act. As the probability increases that certain

consequences will flow from certain conduct, the actor's conduct acquires the character
Stark County, Case No. 2010-CA-00124 & 2010-CA-00130                                  11


of intent and moves from negligence toward intentional wrongdoing. Thus, the court

concluded, the terms “wanton,” “willful” and “reckless,” as used to describe tortious

conduct, might best be defined at points on a continuum between negligence, which

conveys the idea of inadvertence, and intentional misconduct.

      {¶29} We observe that willful and wanton misconduct describe two distinct legal

standards. Gardner v. Ohio Valley Region Sports Car Club of Am., Franklin App. No.

01 AP-1280, 2002-Ohio-3556 at ¶11.

      {¶30} Essentially, wanton misconduct is the failure to exercise any care. Hunter

v. City of Columbus (2000), 139 Ohio App. 3d 962, 968, 746 N.E. 2d 246. Wanton

misconduct has also been likened to conduct that manifests a “disposition to perversity.”

Seymour v. New Bremen Speedway (1971), 31 Ohio App.3d 141, 148, 509 N.E.2d 90,

quoting Roszman v. Sammett (1971), 26 Ohio St.2d 94, 269 N.E.2d 420, paragraph two

of the syllabus. “‘[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 Police Dept. (1994), 70 Ohio St.3d 351, 356, 639 N.E.2d 31, quoting

Roszman, supra. See Gardner v. Ohio Valley Region Sports Car Club of Am., Franklin

App. No. 01 AP-1280, 2002-Ohio-3556 at ¶13.

      {¶31} Willful misconduct involves “an intent, purpose, or design to injure.” Zivich

v. Mentor Soccer Club, Inc. (1998), 82 Ohio St.3d 367, 375, 696 N.E.2d 201, quoting

McKinney v. Hartz & Restle Realtors, Inc. (1987), 31 Ohio St.3d 244, 246, 510 N.E.2d

386. Willful misconduct is something more than negligence and it imports a more

positive mental condition prompting an act than wanton misconduct. Phillips v. Dayton
Stark County, Case No. 2010-CA-00124 & 2010-CA-00130                                   12

Power & Light Co. (1994), 93 Ohio App.3d 111, 119, 637 N.E.2d 963, citing Tighe v.

Diamond (1948), 149 Ohio St. 520, 526-527, 80 N.E.2d 122.

       {¶32} In Marchant v. Gouge, this Court observed that wanton misconduct goes

beyond mere negligence and requires the evidence to establish a disposition to

perversity on the part of the tortfeasor such that the actor must be conscious that his

conduct will in all probability result in injury.   The “wanton or reckless misconduct”

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

forth in R.C. 2744.02(B)(1)(a) are functionally equivalent. 187 Ohio App.3d 551, 932

N.E.2d 960, 2010-Ohio-2273 at ¶ 32. (Citations and internal quotation marks omitted).

       {¶33} In Marchant, supra we went on to observe that “willful misconduct” involves

a more positive mental state prompting the injurious act than wanton misconduct, but

the intention relates to the misconduct, not the result. We cited Whitfield v. Dayton, 167

Ohio App.3d 172, 2006-Ohio-2917, 854 N.E.2d 532 which defined “willful misconduct”

as “‘an intentional deviation from a clear duty or from a definite rule of conduct, a

deliberate purpose not to discharge some duty necessary to safety, or purposely doing

some wrongful acts with knowledge or appreciation of the likelihood of resulting injury.’

” Id. at ¶ 30, quoting Tighe v. Diamond (1948), 149 Ohio St. 520, 527, 37 O.O. 243, 80

N.E.2d 122. In Gladon v. Greater Cleveland Regional Transit Auth. (1996), 75 Ohio

St.3d 312, 319, 662 N.E.2d 287, the Supreme Court defined the term “willful

misconduct” as “the intent, purpose, or design to injure.”

       {¶34} The Supreme Court of Ohio has adopted the definition of reckless

misconduct set forth in Restatement of the Law 2d, Torts (1965) 587, Section 500.

Marchetti v. Kalish (1990), 53 Ohio St.3d 95, 100, 559 N.E.2d 699, 704 at n.3.
Stark County, Case No. 2010-CA-00124 & 2010-CA-00130                                    13

Comments f and g to Section 500 of the Restatement of Torts 2d, supra, at 590, provide

a concise analysis, which differentiates between the three mental states of tortious

conduct with which we are confronted. The court in Marchetti cited to these comments

with approval. They provide as follows:

       {¶35} “f. Intentional misconduct and recklessness contrasted.             Reckless

misconduct differs from intentional wrongdoing in a very important particular. 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. It is enough that he realizes or, from facts which he knows,

should realize that there is a strong probability that harm may result, even though he

hopes or even expects that his conduct will prove harmless.           However, a strong

probability is a different thing from the substantial certainty without which he cannot be

said to intend the harm in which his act results.

       {¶36} “g. Negligence and recklessness contrasted. Reckless misconduct differs

from negligence in several important particulars. It differs from that form of negligence

which consists in mere inadvertence, incompetence, unskillfulness, or a failure to take

precautions to enable the actor adequately to cope with a possible or probable future

emergency, in that reckless misconduct requires a conscious choice of a course of

action, either with knowledge of the serious danger to others involved in it or with

knowledge of facts which would disclose this danger to any reasonable man. It differs

not only from the above-mentioned form of negligence, but also from that negligence

which consists in intentionally doing an act with knowledge that it contains a risk of harm

to others, in that the actor to be reckless must recognize that his conduct involves a risk

substantially greater in amount than that which is necessary to make his conduct
Stark County, Case No. 2010-CA-00124 & 2010-CA-00130                                       14


negligent.   The difference between reckless misconduct and conduct involving only

such a quantum of risk as is necessary to make it negligent is a difference in the degree

of the risk, but this difference of degree is so marked as to amount substantially to a

difference in kind.” See also Marchant v. Gouge, supra at ¶ 36.

        {¶37} Appellants argue Coombs violated traffic law and departmental policies

while driving the fire truck.    R.C. 4511.03 is entitled “Emergency or public safety

vehicles to proceed cautiously past red or stop signal” and provides:

        {¶38} “(A) The driver of any emergency vehicle or public safety vehicle, when

responding to an emergency call, upon approaching a red or stop signal or any stop

sign shall slow down as necessary for safety to traffic, but may proceed cautiously past

such red or stop sign or signal with due regard for the safety of all persons using the

street or highway.”

        {¶39} The statute does not refer to use of sirens and flashing lights. It directs all

emergency vehicles to slow down at red lights and stop signs.

        {¶40} The trial court cited Pelc v. Hartford Insurance Co., Stark App. No.

2003CA00162, 2003-Ohio-6021 as authority for the proposition immunity from civil

liability is a separate issue from immunity under the traffic code. The court misstates

our holding. In Pelc, we noted R.C.2744.02 gave immunity to the firefighter because he

was responding to an emergency and because his actions were not willful or wanton.

R.C. 4511.041 provides traffic laws do not apply to a driver of an emergency vehicle

while responding to an emergency and gives immunity from prosecution for violating

traffic laws. R.C. 4511.041 is a traffic law and does not provide immunity for civil liability

for torts.
Stark County, Case No. 2010-CA-00124 & 2010-CA-00130                                    15


       {¶41} In the case at bar, the trial court found violations of departmental

regulations do not strip Coombs of immunity because a city regulation cannot override

the state statute granting immunity. The court stated courts in Ohio have repeatedly

found violations of internal departmental policies are not relevant to a finding of malice,

bad faith or wanton or reckless manner, citing Elass v. Crockett, Summit App.

No.22282, 2005-Ohio-2142; Shalkhauser v. City of Medina, 148 Ohio App.3d 41, 2002-

Ohio-222, 772 N.E.2d 129, at paragraph 37; and Rodgers v. DeRue (1991), 75 Ohio

App.3d 200, 598 N.E.2d 1312. In actuality, these cases all arose out of the Ninth

District, and we do not agree. Violation of departmental policy or of traffic laws may be

a factor for the jury to consider in determining whether the conduct of the defendants

rose to the level of wanton or reckless.

       {¶42} Appellee cites us to O’Toole v. Denihan 118 Ohio St.3d 374, 2008-Ohio-

2574, 889 N.E.2d 505 as authority for the proposition a plaintiff cannot maneuver

around political subdivision immunity by alleging violations of departmental policies or

the Ohio Administrative Code.

       {¶43} In O'Toole v. Denihan, 118 Ohio St.3d 374, 2008-Ohio-2574, 889 N.E.2d

505, ¶ 73, the Supreme Court noted that in the context of R.C. 2744.03(A) (6) (b),

recklessness is a perverse disregard of a known risk. The O'Toole court held that

violations of agency policy could rise to the level of recklessness if the circumstances

demonstrate a perverse disregard for the risks involved. Id. at ¶ 92. The Court said:

       {¶44} “Appellee's final attempt to maneuver around George-Munro's immunity

status is based on the allegation that George-Munro violated various Ohio

Administrative Code and CCDCFS policies regarding investigations.              Given our
Stark County, Case No. 2010-CA-00124 & 2010-CA-00130                                         16


definition of “recklessness,” a violation of various policies does not rise to the level of

reckless conduct unless a claimant can establish that the violator acted with a perverse

disregard of the risk. *** Without evidence of an accompanying knowledge that the

violations “will in all probability result in injury,” Fabrey, [v. McDonald Village Police

Department] 70 Ohio St.3d at 356, 639 N.E.2d 31, evidence that policies have been

violated demonstrates negligence at best. ***” O’Toole at paragraph 92.

       {¶45} The laws and policies are designed to make emergency responses safer

for the public. However, they also exist for the protection of the firefighters, who already

face serious personal risks in their day-to-day jobs, and who must not be further

imperiled en route to their humanitarian roles. We find violations of traffic statutes and

departmental policies are factors a jury may consider in determining whether Coombs’

actions were reckless.

       {¶46} The 2008 Fire Department Policy Vehicle Operations/ Security requires

drivers of fire department vehicles to come to a complete stop: if directed by a law

enforcement officer; for red traffic lights; for stop signs ; for negative right-of way

intersections; for blind intersections; if the driver cannot account for all lanes of traffic in

an intersection.

       {¶47} The Canton Fire Department Policy Incident and Collision Investigation

guidelines list collisions at intersections preventable if: the driver failed to completely

stop at an intersection controlled by a red control device or stop sign; the driver failed to

control speed so the vehicle could be stopped safely; the driver failed to check cross

traffic and wait for all lanes of traffic to stop or clear before entering the intersection,

even if the driver had the right of way; the driver pulled out into the face of oncoming
Stark County, Case No. 2010-CA-00124 & 2010-CA-00130                                      17


traffic; the driver collided with a vehicle making a turn; the driver collided with a vehicle

making a turn in front of the city vehicle.

       {¶48} Appellants urge from the above facts, reasonable minds could draw

different conclusions regarding whether Coombs operated the fire truck recklessly.

       {¶49} The question of whether a person has acted recklessly is almost always a

question for the jury. Hunter v. Columbus (2000), 139 Ohio App. 962, 746 N.E. 2d 246,

decided by the 10th District Court of Appeals.         In Hunter, an emergency vehicle

responding to an emergency call entered an intersection at 61 miles per hour in a 35

miles per hour zone.      The court of appeals acknowledged the emergency vehicle

operator’s motives were humanitarian, but found nevertheless, he did not necessarily

have immunity because the matter presented a genuine issue of fact to the jury. The

Hunter case cited Brockman v. Bell (1992), 78 Ohio App. 3d 508, 605 N.E. 2d 445,

arising out of the Eleventh District Court of Appeals, and Ruth v. Jennings (1999), 136

Ohio App. 3d 370, 736 N.E. 2d 917, arising out of the Twelfth District Court of Appeals.

The Bell case involved a collision between an ambulance and a private vehicle,

although Ruth concerned an excessive force to arrest situation. However, all three of

the cases the Hunter court cited found resolution of the case was a matter for the jury.

       {¶50} The Ohio Supreme Court has explained: negligence is mere inadvertence,

incompetence, lack of skill, or failure to take precautions that would allow the person to

cope with a possible or probable future emergency. Reckless consists in intentionally

doing an act with knowledge that it contains a risk of harm to others, in that the actor to

be reckless must recognize that his conduct involves a risk substantially greater in

amount than that which is necessary to make his conduct negligent. The person does
Stark County, Case No. 2010-CA-00124 & 2010-CA-00130                                       18


not intend to cause the harm that results from it but realizes or, from known facts,

should realize that there is a strong probability that harm may result, even though the

person hopes or even expects that the conduct will prove harmless.                 Intentional

misconduct occurs when the person intends to cause harm. Marchetti v. Kalish, 53

Ohio St.3d 95, 559 N.E.2d 699, footnote 3, citing Comments f and g to Section 500 of

the Restatement of Torts 2d.

       {¶51} The spectrum of intent stretches from negligence, through reckless, to

intentional, and there are no bright lines. It is a jury question where on the continuum

the appellees’ actions fall. We agree with the Bell court that the line between willful and

wanton misconduct and ordinary negligence can be a very fine one, Bell at 517, citing

Osler v. Lorain (1986), 28 Ohio St. 3d 345, 504 N.E. 2d 19; Hawkins v. Ivy (1977), 50

Oho St. 2d 144, 363 N.E. 2d 367; Tighe v. Diamond (1948), 149 Ohio St. 520, 80 N.E.

2d 1122; and Reynolds v. City of Oakwood (1987), 38 Ohio App. 3d 125, 528 N.E. 2d

578. The Reynolds case arose out of the Second District Court of Appeals and dealt

with a collision between a police car utilizing the siren and lights and a pedestrian

vehicle.

       {¶52} In Hunter, supra, the court of appeals noted each case must be evaluated

on its particular facts, and the use of a siren and flashing lights is one factor a jury must

consider. Whether the emergency vehicle has crossed left of center may be a factor, as

is the speed at which an emergency vehicle is traveling, because it may exceed the

reaction time of even an alert driver. Id., at 970-971. The Reynolds court found use of

a siren and flashing lights is not the sole determinative fact, and the court discussed

tree-lined streets as possible impairments to visibility and audibility. Id. at 127.
Stark County, Case No. 2010-CA-00124 & 2010-CA-00130                                    19


       {¶53} The question of whether conduct is reckless in the case at bar in relation to

whether the probability of harm is great and known to the alleged tortfeasor requires a

more substantial analysis. The city cites situations where emergency vehicle drivers

were not found to be driving in a wanton or reckless manner, but each situation must be

evaluated on its own unique facts. In this case, the circumstances are extreme enough

that evaluation of whether the recklessness was great enough to be reckless or wanton

misconduct is a matter for the trier of fact. The fact that the siren was not on is, of

course, a matter that can be considered by the jury in determining whether appellants

proved wanton or reckless misconduct, but the driver's conduct must be evaluated

based upon all of the circumstances at the time he choose to continue into the

intersection at the speed he was traveling.

       {¶54} “It is assumed that twelve men know more of common affairs of life than

does one man, that they can draw wiser and safer conclusions from admitted facts thus

occurring than can a single judge.” Sioux City & Pennsylvania Railway. Co. v. Stout,

(1873) 84 U.S. (17 Wall.) 657,664. Justice Story was writing in defense of one of the

foundations of the American system of justice: the Seventh Amendment to the United

States Constitution. It provides:

       {¶55} “In Suits at common law, where the value in controversy shall exceed

twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury,

shall be otherwise reexamined in any Court of the United States, than according to the

rules of the common law.”
Stark County, Case No. 2010-CA-00124 & 2010-CA-00130                                       20


       {¶56} Although the Seventh Amendment is not directly applicable to the

individual states, Ohio has guaranteed the right to jury trial in Section 5, Article I of the

Ohio Constitution. Article I section 5 of the Ohio Constitution provides:

       {¶57} ”The right of trial by jury shall be inviolate, except that, in civil cases, laws

may be passed to authorize the rendering of a verdict by the concurrence of not less

than three-fourths of the jury.”

       {¶58} Because the right to jury trial is a substantive fundamental right, any rule or

statute curtailing that right must be examined under a microscope. For this reason, the

Ohio Supreme Court has held that even if the facts of a given case are undisputed, if a

jury could draw different conclusions from those facts, a summary judgment cannot be

entered. Houndshell v. American States Insurance Company (1981), 67 Ohio St. 2d

427. The jury must decide questions of fact; the judge decides how the law applies to

those facts. The judge must not weigh the credibility of the evidence and must not

decide how much emphasis to put on any one piece of properly admitted evidence.

       {¶59} Summary judgment can be an important tool to streamline what may

become a lengthy process. It is intended to weed out those cases that have no merit, or

those that can be resolved simply by applying the law. However, courts must not be in

a rush to judgment and must carefully preserve the right of litigants to have a jury of

their peers determine the facts of their case.        Recently, the Ohio Supreme Court

explained:

       {¶60} “This right [to a jury] serves as one of the most fundamental and long-

standing rights in our legal system, having derived originally from the Magna Carta.

See Cleveland Ry.v. Halliday Co. (1933), 127 Ohio St. 278, 284, 188 N.E. 1. It was
Stark County, Case No. 2010-CA-00124 & 2010-CA-00130                                      21


“[d]esigned to prevent government oppression and to promote the fair resolution of

factual issues.” Arrington v. Daimler Chrysler Corp., 109 Ohio St.3d 539, 2006-Ohio-

3257, 849 N.E.2d 1004, 21. As Thomas Jefferson stated, the right to trial by jury is “the

only anchor, ever yet imagined by man, by which a government can be held to the

principles of it's [sic] constitution.” Letter from Thomas Jefferson to Thomas Paine (July

11, 1789), reprinted in 15 The Papers of Thomas Jefferson (Boyd Ed.1958) 269.

       {¶61} “However, the right is not absolute. See Arrington at 22. Section 5, Article I

guarantees a right to a jury trial only for those causes of action in which the right existed

in the common law when Section 5 was adopted. See Belding v. State ex rel. Heifner

(1929), 121 Ohio St. 393, 169 N.E. 301, paragraph one of the syllabus. It is settled that

the right applies to both negligence and intentional-tort actions. See Arrington at 24.”

Arbino v. Johnson & Johnson, 116 Ohio St.3d 468, 2007 -Ohio- 6948, 880 N.E.2d 420.

       {¶62} This case is far from over. Our holding here does not mean appellants

recover; it just means they could have an opportunity to present their case to a jury who

will decide whether Coombs was reckless. It means there are important issues yet to

be decided.

       {¶63} We find the trial court erred in finding reasonable minds could not differ on

this issue. Accordingly, the assignment of error is sustained.
Stark County, Case No. 2010-CA-00124 & 2010-CA-00130                             22


      {¶64} For the foregoing reasons the judgment of the Court of Common Pleas,

Stark County, Ohio is reversed, and the cause is remanded for further proceedings in

accordance with the law and consistent with this opinion.

By Gwin, P.J.,

Hoffman, J., and

Wise, J., concur


                                             _________________________________
                                             HON. W. SCOTT GWIN

                                             _________________________________
                                             HON. WILLIAM B. HOFFMAN

                                             _________________________________
                                             HON. JOHN W. WISE
WSG:clw 0204
[Cite as Burlingame v. Estate of Burlingame, 2011-Ohio-1325.]


                IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT


GRACE BURLINGAME                                      :
                                                      :
                           Plaintiff-Appellant        :
                                                      :
                                                      :
-vs-                                                  :         JUDGMENT ENTRY
                                                      :
ESTATE OF DALE BURLINGAME,                            :
ET AL                                                 :
                                                      :
                                                      :
                    Defendants-Appellants             :         CASE NO.    2010-CA-00124
And


JAMES R. COOMBS, II., ET AL

                     Defendants-Appellees



       For the reasons stated in our accompanying Memorandum-Opinion, the judgment of

the Court of Common Pleas of Stark County, Ohio, is reversed, and the cause is

remanded to the court for further proceedings in accordance with law and consistent

with this opinion. Costs to appellees.




                                                          _________________________________
                                                          HON. W. SCOTT GWIN

                                                          _________________________________
                                                          HON. WILLIAM B. HOFFMAN

                                                          _________________________________
                                                          HON. JOHN W. WISE
[Cite as Burlingame v. Estate of Burlingame, 2011-Ohio-1325.]


                IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT


GRACE BURLINGAME                                       :
                                                       :
                     Plaintiff-Appellant               :
                                                       :
                                                       :
-vs-                                                   :           JUDGMENT ENTRY
                                                       :
ESTATE OF DALE BURLINGAME,                             :
ET AL                                                  :
                                                       :
                                                       :
                    Defendants-Appellants              :        CASE NO. 2010-CA-00130

And


JAMES R. COOMBS, II., ET AL

                    Defendants-Appellees



       For the reasons stated in our accompanying Memorandum-Opinion, the judgment of

the Court of Common Pleas of Stark County, Ohio, is reversed, and the cause is

remanded to the court for further proceedings in accord with law and consistent with this

opinion. Costs to appellees.




                                                       _________________________________
                                                       HON. W. SCOTT GWIN

                                                       _________________________________
                                                       HON. WILLIAM B. HOFFMAN

                                                       _________________________________
                                                       HON. JOHN W. WISE
