[Cite as Tadijanac v. Jefferson Twp. Bellville Fire Dept., 2014-Ohio-4332.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


JOSEF A. TADIJANAC             :                                 JUDGES:
                               :
      Plaintiff - Appellee/    :                                 Hon. William B. Hoffman, P.J.
      Cross- Appellant         :                                 Hon. John W. Wise, J.
                               :                                 Hon. Craig R. Baldwin, J.
                               :
-vs-                           :
                               :
JEFFERSON TOWNSHIP BELLVILLE :                                   Case No. 14CA20 and 14CA24
FIRE DEPARTMENT, ET AL.        :
                               :
      Defendants - Appellants/ :
      Cross- Appellees         :                                 OPINION



CHARACTER OF PROCEEDING:                                         Appeal from the Richland County
                                                                 Court of Common Pleas, Case No.
                                                                 12 CV 1279


JUDGMENT:                                                        Affirmed in Part, Reversed
                                                                 and Remanded in Part


DATE OF JUDGMENT:                                                September 26, 2014


APPEARANCES:

For Plaintiff-Appellee/                                          For Defendants-Appellants/
Cross-Appellant                                                  Cross-Appellees

KATHY A. DOUGHERTY                                               KENNETH A. CALDERONE
KERI YAEGER                                                      JOHN R. CHLYSTA
Lamkin, Van Eman, Trimble                                        Hanna, Campbell & Powell, LLP
& Dougherty, LLC                                                 3737 Embassy Parkway
500 South Front Street, Suite 200                                Akron, OH 44333
Columbus, OH 43215
Richland County, Case No. 14CA20 and 14CA24                                                 2

Baldwin, J.

      {¶1}    Defendant-appellant Scott Gerhart appeals from the March 14, 2014

Decision of the Richland County Court of Common Pleas overruling his request for

summary judgment. Cross-appellant Josef Tadijanac also appeals from the trial court’s

March 14, 2014 decision granting summary judgment in favor of appellees Craig

Roberts, the Jefferson Township-Bellville Fire Department and the Jefferson Township

Trustees.

                          STATEMENT OF THE FACTS AND CASE

      {¶2}    In 1939, the Bellville Volunteer Fire Department was incorporated as an

Ohio nonprofit corporation. In 1967, the Village of Bellville Council and appellee

Jefferson Township Trustees (“appellee Board”) decided to combine their two fire

departments and change the name of the department to Jefferson Township-Bellville

Fire Department, a nonprofit corporation that is largely staffed by volunteers.      The

department serves both Jefferson Township and the Village of Bellville and provides

emergency fire protection and emergency rescue services for the residents of both. The

Constitution and By-Laws of the Jefferson Township-Bellville Fire Department provide

that the organization would make recommendations to appellee Board with respect to

“operations, purchases and,        selection of paid employees” and that these

recommendations would be directed to the Chief, the head of the Department, for

presentation to such Board.

      {¶3}    Section 3, Article 2 of the Constitution and By-Laws provides that the Fire

Chief of Jefferson Township would be appointed by appellee Board and Section 3,

Article 3 provides that the Chief would be accountable to appellee Board only and would
Richland County, Case No. 14CA20 and 14CA24                                                  3


make reports, both written and verbal, to them as required. Pursuant to Section 3,

Article 2, the Fire Chief can be removed only for just cause after a public hearing before

appellee Board.

          {¶4}   Appellee Board hires and pays the Fire Chief, in this case appellee Chief

Craig Roberts. According to Trustee Frederic Ackerman, the Fire Chief “either appoints

or strongly recommends the appointment of his assistant chief and again, we exercise

the ultimate control over these appointments. The chief, we delegate the day-to-day

operations of the fire house to the chief and then he may delegate further down the

ladder. As I say, the trustees it’s not their habit to micro manage the operation, but in

any significant questions we have the authority over them.” Deposition of Frederic

Ackerman at 32. As part of his duties, the Fire Chief (or, if he delegates the duty, his

assistants) accepts or rejects department volunteers. However, if a volunteer “steps

outside of a policy or gets off the rails some way,” appellee Board of Trustees has the

“absolute authority” to dismiss such volunteer. Deposition of Frederic Ackerman at 28.

The volunteers, unlike the Fire Chief and two Assistant Chiefs, are not paid by appellee

Board. Rather, they are paid per run through the Jefferson Township Firefighters

Association. According to appellee Chief Roberts, appellee Board had given them a

budget and “we chose to reimburse them for some of their gas and stuff that they have

to use, clothes that they ruin and all that kind of stuff.” Deposition of Craig Roberts at

116.      Appellee Board provides Fire Department personnel with accident and sickness

insurance and liability and worker’s compensation insurance within the scope of their

duties.
Richland County, Case No. 14CA20 and 14CA24                                                   4


      {¶5}   In addition, the Fire Chief, as part of his day-to-day operational duties,

sets the policies and procedures that apply to the department and trains members of the

fire department. While appellee Board provides funds for the training, the Fire Chief,

with the authority of appellee Board, decides how the funds are spent. After the fire

department requests that specified equipment be furnished, appellee Board either

approves or disapproves such request.

      {¶6}   Jefferson Township owns the land and fire station where the Fire

Department is based and all department operations are funded by the taxpayers of

Jefferson Township and the Village of Bellville.

      {¶7}   On June 24, 2012, the Troy Township Fire Department called for mutual

aid from the Jefferson Township Fire Department and another department, Washington

Township, in battling a fire.    Appellant Scott Gerhart, who had been a volunteer

firefighter with appellee Jefferson Township-Bellville Fire Department since 1991,

responded and, with two other firefighters, took tanker 121 to the scene. Tanker 121

has a large water tank mounted on a truck chassis. A pump is mounted on the tanker to

pump water in and out of the water tank. The standard Jefferson Township-Bellville Fire

Department immobilization policy for the tanker required that the firefighters activate the

truck airbrake and shift the transmission into neutral before activating the water pump.

The tanker should be left in neutral while the pump is engaged.

      {¶8}   When appellant Gerhart arrived at the fire, cross-appellant Josef

Tadijanac, a volunteer firefighter with the Washington Township Fire Department, was

standing at the back of the Washington Township tanker. Appellant Gerhart was

instructed to pull up behind the Troy Township tanker so that water could be transferred
Richland County, Case No. 14CA20 and 14CA24                                                 5


from one tanker to the other. Appellant Gerhart testified that after receiving such

request, he stopped the tanker and set the emergency air brake and got out to find out

why water was being transferred from one tanker to another since it was not his

department’s standard practice. Once he confirmed his instructions, appellant Gerhart

got back into the tanker and pulled close enough so that the 50 foot hose could be

connected to his tanker. He pulled the tanker to within 15 feet of the Troy tanker and

stopped.

      {¶9}   Appellant Gerhart testified that he then set the air brake by pushing a

button and put the tanker in neutral. He then waited for the engine’s RPMs to run down

so that the pump could be engaged. Next, he activated the water pump by turning on a

switch below the steering wheel and got out of the tanker with his fellow firefighters.

They then watched cross-appellant hook up the hose to the back of the Troy tanker and

waited for a signal from him that he was ready to receive water.

      {¶10} After receiving a nod from cross-appellant, who stayed at the back of the

tanker, appellant Gerhart and the other firefighters opened the valve on the tanker up

and started increasing the RPMs of the pump. Someone then called out for increased

water pressure and appellant Gerhart responded by increasing the engine RPMs to

increase water flow. The tanker surged forward, pinning cross-appellant between the

two tankers and crushing his legs, which had to be amputated.

      {¶11} Subsequently, on October 19, 2012, cross-appellant filed a personal injury

complaint against appellees Jefferson Township-Bellville Fire Department and Chief

Craig Robert, appellant Scott Gerhart, and Isaiah Finley, who was a volunteer firefighter

with the Department. On February 13, 2013, a Third Party Complaint was filed against
Richland County, Case No. 14CA20 and 14CA24                                                  6


the Ohio Bureau of Workers’ Compensation. Pursuant to a Judgment Entry filed on

March 29, 2013, the Ohio Bureau of Workers’ Compensation was realigned as a party

plaintiff.

        {¶12} On October 10, 2013, cross-appellant, with leave of Court, filed a First

Amended Complaint adding appellee Jefferson Township Board of Trustees as a

defendant.

        {¶13} A Notice of Voluntary Dismissal of Isaiah Finley without prejudice was filed

on February 14, 2014. Thereafter, on February 18, 2014, the parties filed cross Motions

for Summary Judgment addressing the issue of governmental immunity under R.C.

Chapter 2744.

        {¶14} Pursuant to a Decision filed on March 14, 2014, the trial court overruled

cross-appellant’s Motion for Summary Judgment and granted summary judgment in

favor of all of the defendants except appellant Scott Gerhart.

        {¶15} Appellant Scott Gerhart, On March 21, 2014, filed an appeal from the trial

court’s March 14, 2014 Decision, raising the following assignment of error on appeal:

        {¶16} THE TRIAL COURT ERRED IN DENYING SUMMARY JUDGMENT TO

DEFENDANT SCOTT GERHART, WHO IS IMMUNE FROM LIABILITY.

        {¶17} His appeal was assigned Case No. 14 CA 20.

        {¶18} Cross-appellant Josef Tadijanac, on March 27, 2014, also appealed from

the trial court’s March 14, 2014 Decision, raising the following assignments of error on

appeal:

        {¶19} THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT

FINDING      THAT    DEFENDANT           JEFFERSON-TOWNSHIP           BELLVILLE     FIRE
Richland County, Case No. 14CA20 and 14CA24                                              7


DEPARTMENT (JTBFD) IS A POLITICAL SUBDIVISION ENTITLED TO IMMUNITY

PURSUANT TO R.C. 2744.02(A)(1).

         {¶20} THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN

FAVOR OF DEFENDANTS JEFFERSON TOWNSHIP TRUSTEES, JEFFERSON

TOWNSHIP BELLVILLE FIRE DEPARTMENT (JTBFD), AND JTBFD CHIEF CRAIG

ROBERTS FINDING THEM IMMUNE PURSUANT TO R.C. 2744.02(A)(1) WHEN THE

RECORD PRESENTS GENUINE ISSUES OF MATERIAL FACT AS TO WHETHER

THE      DEFENDANTS       ENGAGED      IN   WILLFUL,    WANTON,     OR    RECKLESS

MISCONDUCT THAT IS NOT ENTITLED TO IMMUNITY PURSUANT TO R.C.

2744.02(B) AND 2744.03(A)(5).

         {¶21} His appeal was assigned Case No. 14 CA 24.

         {¶22} As memorialized in a Judgment Entry filed on April 30, 2014, this Court

granted the Motion to Consolidate filed by appellant Gerhart and consolidated the two

cases.




                                   STANDARD OF REVIEW

         {¶23} This matter reaches us upon a grant of summary judgment. 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., 30 Ohio St.3d 35, 36, 506 N.E.2d 212(1987). As such, we must refer to

Civ.R. 56(C).
Richland County, Case No. 14CA20 and 14CA24                                                      8


        {¶24} Civ.R. 56(C) states that “[s]ummary 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.”

        {¶25} 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, 65 Ohio St.3d 356, 358–359, 1992-Ohio-95, 604 N.E.2d 138.

        {¶26} 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., 65 Ohio St.3d

621, 629, 605 N.E.2d 936(1992), citing Harless v. Willis Day Warehousing Co., 54 Ohio

St.2d 64, 65–66, 375 N.E.2d 46(1978).

        {¶27} 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 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, 67 Ohio St.3d 337, 341, 1993-Ohio-176, 617 N.E.2d 1123,

1127.

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

Edison Co., 77 Ohio St.3d 102, 1996-Ohio-336, 105, 671 N.E.2d 241; Smiddy v. The
Richland County, Case No. 14CA20 and 14CA24                                                   9

Wedding Party, Inc., 30 Ohio St.3d 35, 506 N.E.2d 212(1987). 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. Coventry

Twp. v. Ecker, 101 Ohio App.3d 38, 41–42, 654 N.E.2d 1327(9th Dist.1995).

      {¶29} Because they are interrelated, we shall address the assignments of error

together, applying the above standard of review.

      {¶30} Appellant Gerhart, in his sole assignment of error, argues that he was

immune from liability and that, therefore, the trial court erred in denying his Motion for

Summary Judgment. Cross-appellant Josef Tadijanac, in his two assignments of error,

argues that the trial court erred in granting summary judgment in favor of appellees

Board, Jefferson Township-Bellville Fire Department and Chief Craig Roberts.

      {¶31} At issue in the case sub judice is whether or not appellees and appellant

Gerhart are immune from liability.     A three-tiered analysis is required to determine

whether a political subdivision is immune from tort liability pursuant to R.C. 2744. Green

Cty. Agricultural Soc. v. Liming, 89 Ohio St.3d 551, 556–557, 2000-Ohio-486, 733

N.E.2d 1141; Smith v. McBride, 130 Ohio St.3d 51, 2011–Ohio–4674, 955 N.E.2d 954,

¶ 13–15. The first tier is the general rule that a political subdivision is immune from

liability incurred in performing either a governmental or a proprietary function. Green

Cty. Agricultural Society, at 556–557, R.C. 2744.02(A)(1). That immunity, however, is

not absolute. R.C. 2744.02(B); Cater v. Cleveland, 83 Ohio St.3d 24, 697 N.E.2d 610

(1998). The second tier of the analysis requires a court to determine whether any of the

five listed exceptions to immunity listed in R.C. 2744.02(B) apply to expose the political
Richland County, Case No. 14CA20 and 14CA24                                                   10


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

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

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

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

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

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

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

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

any defenses in R.C. 2744 .03 apply to reinstate immunity.” Id. at ¶ 15 citing Colbert at ¶

9.

       {¶32} There is no dispute that Jefferson Township is a political subdivision. The

parties   dispute,   however,   whether   appellee   Jefferson   Township-Bellville   Fire

Department is an agent of the political subdivision entitled to immunity pursuant to R.C.

2744.02(A)(1).

       {¶33} R.C. 2744.01(F) states, in relevant part, as follows: “’Political subdivision’

or ‘subdivision’ means a municipal corporation, township, county, school district, or

other body corporate and politic responsible for governmental activities in a geographic

area smaller than that of the state.” Appellee Jefferson Township-Bellville Fire

Department is a corporate entity as it is listed with Secretary of State as a non-profit

corporation.

       {¶34} In Cincinnati Ins. Co. v. Rose, 63 Ohio Misc.2d 1, 612 N.E.2d 819 (C.P.

1992), the court addressed the issue of whether or not the Hartford Volunteer Fire

Department, a not-for-profit private fire company, was a political subdivision. In granting
Richland County, Case No. 14CA20 and 14CA24                                                11


summary judgment to the injured party in such case, the court held as follows in finding

that the Fire Department was not a political subdivision:

                    R.C. 2744.01(F) defines a “political subdivision” as any “ * * *

             other body corporate and politic responsible for governmental

             activities. * * * ” There is no doubt that the Hartford Volunteer Fire

             Department is a corporate entity. According to the statute, however,

             it must also be a body politic. In that regard, its argument fails. It is

             true that it performs functions which are also provided by

             governmental units; however, that fact alone does not make the fire

             company a “body politic.” If that were the case, private trash

             haulers and private not-for-profit schools would also be included.

             Any definition of “body politic” must include an element of

             governmental     control.   No   governmental entity      controls   the

             operations and activities of the Hartford Volunteer Fire Department,

             and the general public cannot, directly or indirectly by vote or

             otherwise, control its operations, activities, and membership. It is

             rather obvious that the Hartford Volunteer Fire Department does

             not want such control. If it did it could organize as a township or

             joint-township firefighting agency under the applicable statutes.

                    There is no doubt that the members of the Hartford

             Volunteer Fire Department are all civic-minded and have the

             general good of their community foremost in their minds. If that

             were not the case, they would not volunteer to put their lives in
Richland County, Case No. 14CA20 and 14CA24                                                 12


              jeopardy for those in their community. Their activities assist those in

              need and they are to be congratulated. But this court cannot grant

              immunity because of their good deeds. Only the legislature can do

              that.

              Id at 7.

       {¶35} As noted by the court in Rush v. City of Mansfield, 771 F.Supp 827 (N.D.

Ohio 2011), a volunteer fire department is not entitled to immunity “unless directly

controlled by a municipality.” Id at 875-876.

       {¶36} The issue thus becomes the degree of control that Jefferson Township,

through its Trustees, exercises over appellee Jefferson Township-Bellville Fire

Department.    As is stated above, the Constitution and By-Laws of the Jefferson

Township-Bellville Fire Department provide that           the organization would make

recommendations to appellee Board with respect to “operations, purchases and,

selection of paid employees” and that these recommendations would be directed to the

Chief, the head of the Department,        for presentation to such Board. The record

demonstrates that appellee Board appoints the Department’s Fire Chief and pays him a

salary. Appellee Board also pays a salary to two Assistant Chiefs. Pursuant to Section 3

of the Constitution and By-Laws, the Chief is appointed for an indefinite period of time

and can “removed only for just cause and after a public hearing before the Board of

Trustees of Jefferson Township.” Section 3, Article 2 provides that the Fire Chief “shall

be accountable to the Jefferson Township Board of Trustees only, and shall make

written and verbal report thereto as they may require.” The Fire Chief attends Trustee

meetings to keep appellee Board advised of departmental issues.            While appellee
Richland County, Case No. 14CA20 and 14CA24                                                 13


Board does not oversee the acceptance or rejection of volunteer firefighters, which is

delegated to the Fire Chief, it has the absolute authority to dismiss a volunteer who “we

feel steps outside of a policy or gets off the railing some way,…’ Deposition of Frederic

Ackerman at 28.

       {¶37} In addition, Jefferson Township owns and insures the land and building

where the Department is based and purchases and own all firefighting equipment. Any

purchases are at the request of the Fire Department. Appellee Board also provides all

emergency response personnel with workers’ compensation coverage and with accident

and sickness insurance. They also provide liability coverage to department personnel

acting within the scope of their duties.

       {¶38} Furthermore, appellee Board allocates money towards firefighter training

and, according to David Taylor, the Township’s fiscal officer, the Fire Chief, with the

authority of the Board of Trustees, determines how to spend such money. Taylor,

during his deposition, testified that the Fire Chief attended every Trustee meeting and

kept the Trustees apprised of what he was doing. Taylor testified that all department

operations where funded by the taxpayers of Jefferson Township and the Village of

Bellville. According to him, “basically the taxes collected from the village are actually

funneled through to the township. So in other words, basically we assess the citizens or

residents of Bellville. They vote on the levy.” Deposition of David Taylor at 41.

       {¶39} Based on the foregoing, we find that the trial court did not err in holding

that appellee Jefferson Township-Bellville Fire Department “acts operates as an arm of

the trustees” and is “integrated with Jefferson Township.” The fire department acts

under the authority of appellee Board.
Richland County, Case No. 14CA20 and 14CA24                                                      14


       {¶40} The next issue for determination is whether or not appellees are immune

from liability pursuant to R.C. 2744.02 and 2744.03. R.C. 2744.02 establishes

governmental immunity for political subdivisions and their employees: “ * * * [a] political

subdivision is not liable in damages in a civil action for injury, death, or loss to person or

property allegedly caused by any act or omission of the political subdivision or an

employee of the political subdivision in connection with a governmental or proprietary

function.”      R.C. 2744.01(C)(2)(a) states that a      “governmental function” includes

firefighting.

       {¶41} R.C. 2744.02(B) provides exceptions to immunity. Such section provides,

in relevant part, as follows: “ (B) Subject to sections 2744.03 and 2744.05 of the

Revised Code, a political subdivision is liable in damages in a civil action for injury,

death, or loss to person or property allegedly caused by an act or omission of the

political subdivision or of any of its employees in connection with a governmental or

proprietary function, as follows:

                        (1) Except as otherwise provided in this division, political

                 subdivisions are liable for injury, death, or loss to person or

                 property caused by the negligent operation 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
Richland County, Case No. 14CA20 and 14CA24                                             15


             in progress or is believed to be in progress, or answering any other

             emergency alarm and the operation of the vehicle did not constitute

             willful or wanton misconduct;..

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

206, the Ohio Supreme Court stated, in relevant part, as follows:

                    [A]s the historical development of these terms in our

             jurisprudence demonstrates, “willful,” “wanton,” and “reckless”

             describe different and distinct degrees of care and are not

             interchangeable. We therefore disavow the dicta contained in

             Thompson, 53 Ohio St.3d at 104, 559 N.E.2d 705, fn. 1, that

             “willfulness,” “wantonness,” and “recklessness” are equivalent

             standards.

                    Willful misconduct implies an intentional deviation from a

             clear duty or from a definite rule of conduct, a deliberate purpose

             not to discharge some duty necessary to safety, or purposefully

             doing wrongful acts with knowledge or appreciation of the likelihood

             of resulting injury. Tighe v. Diamond, 149 Ohio St. at 527, 80

             N.E.2d 122; see also Black's Law Dictionary 1630 (8th Ed.2004)

             (describing willful conduct as the voluntary or intentional violation or

             disregard of a known legal duty).

                    Wanton misconduct is the failure to exercise any care toward

             those to whom a duty of care is owed in circumstances in which

             there is great probability that harm will result. Hawkins, 50 Ohio
Richland County, Case No. 14CA20 and 14CA24                                                    16

              St.2d at 117–118, 363 N.E.2d 367; see also Black's Law Dictionary

              1613–1614 (8th Ed.2004) (explaining that one acting in a wanton

              manner is aware of the risk of the conduct but is not trying to avoid

              it and is indifferent to whether harm results). Id at paragraphs 31-

              33.

       {¶43} 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, 104-105, 559 N.E.2d 705 (1990).

       {¶44} Cross-appellant argues that the trial court erred in granting summary

judgment in favor of appellees Jefferson Township-Bellville Fire Department, Fire Chief

Craig Roberts and Board because there are genuine issues of material fact in dispute

as to whether they engaged in willful, wanton or reckless misconduct. Cross-appellant

argues that there was an “industry-wide safety procedure” of using wheel chocks on the

type of vehicle used in this case and that there was no policy for, or training relating to,

using wheel chocks on tanker 121. Cross-appellant notes that Mark Schockman, an

expert in the area of fire department operation and management, in his affidavit which

was attached to cross-appellant’s memorandum in opposition to the opposing Motion for

Summary Judgment, indicated that “[f]or many years, it has been a industry wide

standard to chock the wheels of firefighting vehicles, including tankers, if they are

unmanned at active fire scenes to prevent them from moving…”

       {¶45} However, there is no evidence of wanton, willful or reckless conduct in this

case. Appellee Jackson Township-Bellville Fire Department, in this case, did have a
Richland County, Case No. 14CA20 and 14CA24                                                    17


standard operating procedure for immobilization that involved the use of an air brake

and putting the tanker in neutral. While the failure to use wheel chocks may have been

negligent, there is no evidence of intent to harm someone or a failure to exercise any

care whatsoever. We note that there is no law in Ohio mandating the use of wheel

chocks.

       {¶46} Finally, assuming, arguendo, that appellees were not entitled to immunity

under R.C. 2744.02(B)(1), we find that R.C. 2744.03(A)(3) operates to reinstate

immunity. R.C. 2744.03(A)(3) restores immunity for the political subdivision “if the action

or failure to act by the employee involved that gave rise to the claim of liability was

within the discretion of the employee with respect to policy-making, planning, or

enforcement powers by virtue of the duties and responsibilities of the office or position

of the employee.”

       {¶47} As the Ohio Supreme Court in Elston v. Howland Local School, 113 Ohio

St.3d 314, 2007–Ohio–2070, 865 N.E.2d 84, noted: “the focus of subsection (A)(3) is

that the employee be engaged in policy-making, planning, or enforcement. …R.C.

2744.03(A)(3) does not have language limiting its grant of immunity. In other words, a

political subdivision may assert the immunity defense when an employee who has the

duty and responsibility for policy-making, planning, or enforcement by virtue of office or

position actually exercises discretion with respect to that power. This immunity exists

even if the discretionary actions were done recklessly or with bad faith or malice.”Id. at ¶

27.

       {¶48} A discretionary act under R.C. 2744.03 involves a heightened amount of

official judgment or discretion. Inland Prods., Inc. v. Columbus, 193 Ohio App.3d 740,
Richland County, Case No. 14CA20 and 14CA24                                                   18


2011–Ohio–2046, 954 N.E.2d 141, ¶ 62 (10th Dist.). Routine decisions that require little

judgment or discretion and that, instead, portray inadvertence, inattention, or

unobservance do not create a defense to liability. Frenz v. Springvale Golf Course &

Ballroom, 8th Dist. Cuyahoga No. 97593, 2012–Ohio–3568.

      {¶49} We concur with appellees that the failure to purchase and use wheel

chocks and the decision to enact the standard operating procedures that were used for

immobilization of the tanker were discretionary acts with respect to policy-making,

planning, or enforcement powers in the use of the department’s equipment and

resources. We agree with appellees that the “Department’s standard operating

procedures and decisions on what equipment to put on its trucks were discretionary

actions with regard to policy making, planning and enforcement powers in the use of the

Department’s equipment and resources.”

      {¶50} Based on the foregoing, we find that appellees Board and Jefferson

Township-Bellville Fire Department were entitled to immunity and that the trial court did

not err in granting summary judgment in their favor.

      {¶51} We further find that the trial court did not err in finding that appellee Chief

Roberts was immune from liability under R.C. 2744.03(A)(6). Appellee Chief Roberts, as

the paid Fire Chief, is an employee of the political subdivision is entitled to immunity

under R.C. 2744.03(A)(6) provided that he did not act maliciously, in bad faith, or in

wanton or reckless manner. There is no evidence that he did so. He was not at the

scene or involved in the use of tanker 121.

      {¶52} We must next address appellant Scott Gerhart’s argument that the trial

court erred in denying his Motion for Summary Judgment. The trial court, in its March
Richland County, Case No. 14CA20 and 14CA24                                                 19


14, 2014 Decision, held that because cross-appellant contended that he had evidence

that appellant Gerhart neither applied the air brake nor shifted the tanker into neutral,

summary judgment was not proper in favor of appellant Gerhart.

      {¶53} Cross-appellant, in response to appellant’s argument, contends initially

that appellant Gerhart was not an “employee” of the Jefferson Township Trustees and,

therefore, was not entitled to immunity under R.C. 2744.03(A)(6). Such section confers

a general grant of immunity, which specified exceptions, to “employees” of political

subdivisions.

      {¶54} R.C. 2744.01(B) states, in relevant part, as follows:

                      Employee” means an officer, agent, employee, or servant,

                whether or not compensated or full-time or part-time, who is

                authorized to act and is acting within the scope of the officer's,

                agent's, employee's, or servant's employment for a political

                subdivision.    “Employee”   does   not   include   an   independent

                contractor and does not include any individual engaged by a school

                district pursuant to section 3319.301 of the Revised Code.

                “Employee” includes any elected or appointed official of a political

                subdivision….

      {¶55} Volunteer firefighters are considered “employees” for purposes of R.C.

2744.03(A)(6). See Bowlander v. Ballard, 6th Dist. Sandusky No. S–02–029, 2003–

Ohio–2907, paragraph 21, citing to Salmon v. Jordan (Nov. 12, 1999), Portage App. No.

98-P-0096. See, also, Erie Insurance Group v. Baum , 83 Ohio Misc.2d 1, 6, 677
Richland County, Case No. 14CA20 and 14CA24                                                    20

N.E.2d 1266 (1993) and Reyes v. Lochotzki, 6th Dist. Ottawa No. OT-05-034, 2006-

Ohio-1404.

       {¶56} R.C. 2744.03(A)(6) grants employees of political subdivisions immunity

from liability, unless any of three exceptions to that immunity apply. Anderson v.

Massillon, 134 Ohio St.3d 380, 2012-Ohio-5711, 983 N.E.2d 266, ¶ 21. Those

exceptions are (1) the employee's acts or omissions were manifestly outside the scope

of the employee's employment or official responsibilities; (2) the employee's acts or

omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner;

and (3) civil liability is expressly imposed upon the employee by a section of the

Revised Code. R.C. 2744.03(A)(6)(a)-(c).

       {¶57} Appellant maintains that none of these exceptions apply and that he is

entitled to immunity. In turn, cross-appellant argues that the trial court did not err in

denying appellant’s Motion for Summary Judgment because there are genuine issues of

material fact as to whether appellant engaged in willful, wanton, or reckless misconduct.

       {¶58} In the case sub judice, the standard procedure for operating tanker 121

was to first activate the airbrake, then put the truck in neutral, next activate the pump by

engaging the power-takeoff and finally exiting the cab to operate the pump controls,

which were on the side of the tanker. We note that there is a dispute as to whether or

not appellant Gerhart put the truck in neutral.

       {¶59} The trial court, in its Decision, stated, in relevant part, as follows:

                     If the evidence at trial that the defendant applied the

              airbrake and omitted to shift the truck to neutral, that would be

              negligent conduct. There is no evidence that he was callous or
Richland County, Case No. 14CA20 and 14CA24                                                     21


             indifferent to the safety of other firefighters.        If however the

             evidence is that he neither applied the brake nor shifted the truck

             to neutral, that could conceivably be evidence of a failure to

             exercise any care.       Because the plaintiff contents he has such

             evidence, summary judgment must be overruled for defendant

             Gerhart.

      {¶60} The issue thus becomes whether or not there is a genuine issue of

material fact as to whether appellant Gerhart applied the air brake.

      {¶61} During his deposition, appellant Gerhart testified that, when he arrived on

the scene he set the air brake and put the tanker in neutral and then waited for the

RPMs of the engine to go down. He then exited the tanker and was told that water

needed to be transferred from one tanker to the other. Appellant Gerhart then got back

into the tanker and pulled the tanker closer to the Troy tanker so that the water could be

pumped. The following testimony was adduced when he was asked what he did after

stopping the tanker:

      {¶62} Q:         All right. Once you stop the truck in this position, what did you then

do?

      {¶63} A:         Then I set the brakes. Put it in neutral. Waited for the RPM’s on

the engine to run down so the pump could be engaged.

      {¶64} Q:         How do you set the brake?

      {¶65} A:         There is a button that you pull out to set the air brakes.

      {¶66} Q:         Okay, Then you literally have a gear shift on it and you put it in

neutral?
Richland County, Case No. 14CA20 and 14CA24                                                       22


       {¶67} A:      Yes.

       {¶68} Deposition of Scott Gerhart at 76-77.

       {¶69} Appellant Gerhart further testified that after the tanker was moving

towards cross-appellant, firefighter Isaiah Finley “got into the truck and immediately hit

the brake.” Deposition of Scott Gerhart at 88-89. Finley put the vehicle in reverse and

backed it up. Appellant Gerhart testified that Finley had to turn the air brakes off in

order to reverse the truck.

       {¶70} Firefighter Ryan Reasor, who was with cross-appellant and Finley at the

scene, testified during his deposition that he remembered hearing the air brake after

appellant Gerhart moved the tanker towards the other tanker. He later testified that after

Finley jumped into the driver’s seat to hit the brakes, he did not hear an airbrake. We

find that this is not inconsistent with his earlier testimony. Finley, when asked during his

depositions, testified that he was unable to recall whether or not the air brakes were on

when he got into the cab. He testified that you released the air brake by pushing it in

and did not recall pushing it in. Finley did not testify that appellant either did, or did not,

activate the air brake.

       {¶71} Gordon Peter, who was the Assistant Fire Chief, testified that he went to

the scene after the accident and spoke with appellant Gerhart. He testified that

appellant Gerhart told him that he had set the brake.

       {¶72} Thus, there was testimony from appellant and Reasor that appellant

activated the air brake.

       {¶73} Cross-appellant contends that the tanker could only have moved if it was

left in drive and the airbrake was not engaged. He notes that, during his deposition,
Richland County, Case No. 14CA20 and 14CA24                                                 23


appellant Gerhart stated that if the vehicle was in drive with the pump activated and the

air brake was not used, it could move forward. However, we concur with appellant

Gerhart that this does not mean that the only time the tanker could move was if the air

brake was not activated. Cross-appellant also points to testimony from Rodney Walker,

who was the previous Fire Chief, that if the truck was in low gear and the air brake set,

“[i]t would take quite a bit to move the truck.” Deposition of Rodney Walker at 45.

Cross-appellant contends that “if the air brake was properly set, in order for the tanker

to move forward it would have to overcome the air brake, the uphill grade and the

weight of the water to move forward” and “[t]his would take time and a significant level

of RPMs.” According to cross-appellant, based on the witnesses’ testimony, the air

brake could not have been engaged because the engine was just revving up and the

tanker moved forward before any water under pressure began moving through the

hose. However, there is no evidence in the record establishing exactly how much

energy was needed to overcome the brakes or how quickly the engine/pump

accelerated, among other factors. Rather, cross-appellant merely speculates as to such

factors.

       {¶74} While cross-appellant argues that appellant acted wantonly or recklessly

in failing to use wheel chocks, there is no evidence that appellant was responsible for

the department’s wheel chock policy or that wheel chocks were available to him.

       {¶75} In short, upon our review of the record, we find that there is no evidence

that appellant, who may arguably have been negligent, engaged in willful, wanton, or

reckless misconduct.
Richland County, Case No. 14CA20 and 14CA24                                                 24


      {¶76} Based on the foregoing, we find that the trial court erred in denying

appellant Gerhart’s Motion for Summary Judgment.

      {¶77} Accordingly, cross-appellant’s two assignments of error are overruled and

appellant’s sole assignment of error is sustained.

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

in part and reversed and remanded in part. This matter is remanded to the trial court for

further proceedings consistent with this Opinion.


By: Baldwin, J.

and Wise, J. concur.

Hoffman, P.J. concurs in part
and dissents in part
Richland County, Case No. 14CA20 and 14CA24                                                 25

Hoffman, P.J., concurring in part and dissenting in part,

       {¶79} I concur in the majority's analysis and disposition of Cross-appellant's two

assignments of error.

       {¶80} However, I respectfully dissent from the majority's disposition of

Appellant's assignment of error. While I agree Gerhart was an employee for purposes

of R.C. 2744.03(A)(6), I find, when considering the evidence in the light most favorable

to Appellee, reasonable minds could find Gerhart acted recklessly. Putting the tanker in

neutral was the most critical of the steps which needed to be taken to prevent a

substantial risk of serious harm because a revved engine would overcome the air

brakes, even if the air brakes had been engaged by Gerhart. Accordingly, I would affirm

the trial court decision denying Appellant's Motion for Summary Judgment.
