[Cite as Riffle v. Physicians & Surgeons Ambulance, 2016-Ohio-94.]


STATE OF OHIO                    )                        IN THE COURT OF APPEALS
                                 )ss:                     NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                 )

ANDREA RIFFLE, et al.                                     C.A. No.   27449

        Appellees

        v.                                                APPEAL FROM JUDGMENT
                                                          ENTERED IN THE
PHYSICIANS AND SURGEONS                                   COURT OF COMMON PLEAS
AMBULANCE, et al.                                         COUNTY OF SUMMIT, OHIO
                                                          CASE No.   CV 2009-11-8537
        Defendants

        and

CITY OF AKRON, STACY FRABOTTA,
AND TODD KELLY,

        Appellants


                                DECISION AND JOURNAL ENTRY

Dated: January 13, 2016



        CARR, Presiding Judge.

        {¶1}     Appellants, the City of Akron and paramedics Stacy Frabotta and Todd Kelly,

appeal an order that denied their motion for summary judgment under R.C. Chapter 2744. This

Court affirms.

                                                     I.

        {¶2}     Around 4:00 a.m. on December 26, 2008, Andrea Riffle, who was less than two

weeks away from the due date of her first child, called 911 when she awoke to find herself

bleeding. Stacy Frabotta and Todd Kelly, two paramedics employed by the City of Akron,

responded to the call. The printed run report that was provided to Frabotta explained that the
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reason for the call was a 38 year-old woman with “a pregnancy related problem.” The run report

further explained that Mrs. Riffle reported that she was in her third trimester, was not having

contractions, and could not see, feel, or touch the baby, but noted that “[t]here is SERIOUS

bleeding.” (Emphasis in original.) Frabotta and Kelly assessed Mrs. Riffle in the first-floor

bathroom adjacent to the master bedroom in her home, concluded that the situation was a routine

first pregnancy that did not warrant emergency transport, and turned Mrs. Riffle’s care over to a

private ambulance service.    The private ambulance transported Mrs. Riffle to Akron City

Hospital, where she was taken directly to the labor and delivery department. After Mrs. Riffle

was assessed by medical providers at the hospital, her daughter Tenley was delivered by

emergency Caesarean. Tenley Riffle died in the hospital three days later.

       {¶3}    Mr. and Mrs. Riffle sued the City of Akron, Frabotta, and Kelly, alleging that

Frabotta and Kelly mishandled the care of Mrs. Riffle and her unborn daughter, resulting in

delay that contributed to Tenley’s death. The City, Frabotta, and Kelly moved for summary

judgment, alleging that they were immune pursuant to R.C. 2744.02 and R.C. 4765.49(B). The

trial court denied the motion, concluding that there were genuine issues of fact regarding whether

the moving parties acted willfully or wantonly. The City, Frabotta, and Kelly appealed under

R.C. 2744.02(C).

                                               II.

                                 ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED BY DENYING THE APPELLANTS’ MOTION
       FOR SUMMARY JUDGMENT.

       {¶4}    In its only assignment of error, the City has argued that the trial court erred by

concluding that there are genuine issues of material fact regarding whether the City provided

medical services to Mrs. Riffle in a manner that constituted willful or wanton misconduct under
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R.C. 4765.69(B). The City has also argued that the trial court erred by concluding that there are

genuine issues of material fact with respect to whether its employees’ acts “were with malicious

purpose, in bad faith, or in a wanton or reckless manner[.]” We disagree.

       {¶5}    This Court reviews an order granting summary judgment de novo. Grafton v.

Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996). Under Civ.R. 56(C), “[s]ummary judgment

will be granted only when there remains no genuine issue of material fact and, when construing

the evidence most strongly in favor of the nonmoving party, reasonable minds can only conclude

that the moving party is entitled to judgment as a matter of law.” Byrd v. Smith, 110 Ohio St.3d

24, 2006-Ohio-3455, ¶ 10. The substantive law underlying the claims provides the framework

for reviewing motions for summary judgment, both with respect to whether there are genuine

issues of material fact and whether the moving party is entitled to judgment as a matter of law.

See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Burkes v. Stidham, 107 Ohio

App.3d 363, 371 (8th Dist.1995).

       {¶6}    As a general rule, 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.” R.C. 2744.02(A)(1). The parties do not dispute that a

governmental function is at issue in this case. The immunity provided by R.C. 2744.02(A)(1),

however, is subject to the exceptions described in R.C. 2744.02(B). One of these exceptions, set

forth in R.C. 2744.02(B)(5), provides that a political subdivision is liable when another provision

of the Revised Code expressly imposes civil liability.        R.C. 4765.69(B) expressly imposes

liability upon a political subdivision that provides emergency medical services when such

services are provided “in a manner that constitutes willful or wanton misconduct.”          Riffle v.
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Physicians & Surgeons Ambulance Serv., Inc., 135 Ohio St.3d 357, 2013-Ohio-989, ¶ 23. A

public employee is immune from liability if the employee’s action or omission was manifestly

outside the scope of employment or undertaken “with malicious purpose, in bad faith, or in a

wanton or reckless manner[.]” R.C. 2744.03(A)(6).

       {¶7}    Neither the City of Akron nor the two employees involved in this case are

immune if the acts or omissions at issue were undertaken in a “wanton” manner. Compare R.C.

4765.69(B) and R.C. 2744.03(A)(6). In this respect, we note that for purposes of R.C. Chapter

2744, “the terms ‘willful,’ ‘wanton,’ and ‘reckless’ * * * are not interchangeable.” Anderson v.

Massillon, 134 Ohio St.3d 380, 2012-Ohio-5711, ¶ 40. Instead, they “describe different and

distinct degrees of care[.]” Id. at ¶ 31. “Wanton misconduct is the failure to exercise any care

toward those to whom a duty of care is owed in circumstances in which there is great probability

that harm will result.” Id. at ¶ 33. A person who engages in wanton behavior is aware of the risk

inherent in the conduct, but does not attempt to avoid the risk and is indifferent to any resulting

harm. Id., citing Black’s Law Dictionary 1613-1614 (8th Ed.2004).

       {¶8}    According to the deposition testimony of Frabotta and Kelly, they were aware that

bleeding during the third trimester of pregnancy constituted an obstetrical emergency that

triggered a specific protocol for treatment by EMS providers. Both acknowledged that the

appropriate protocol in that situation included emergency transport with lights and sirens rather

than transportation by a private ambulance service. Frabotta agreed that paramedics have an

obligation to get information from obstetrical patients regarding whether they are experiencing

bleeding. She confirmed that she had been provided the printed run sheet on the night in

question, and that run sheet contains a notation that Mrs. Riffle was a patient in her third

trimester who was experiencing “SERIOUS bleeding.”
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       {¶9}    Mr. Riffle stated in his deposition that he met Frabotta and Kelly outside the

house, then “walked them into the house and told them that my wife was 38 weeks pregnant and

she woke up in a pool of blood.” Mrs. Riffle testified that she also “told the paramedics that I

had been bleeding.” Neither Frabotta nor Kelly recalled those statements from the Riffles. Kelly

thought that he heard Frabotta ask about bleeding, but did not recall what the response had been.

Frabotta’s memory differed. She testified, “I don’t believe I asked any questions about serious

bleeding, and none was mentioned.” She agreed that she essentially ignored the notation on the

run sheet that indicated there had been serious bleeding, explaining that “I’ve been doing this

long enough [to know] that the dispatch notes are a lot of times not close to what we’re actually

going on.” Frabotta further expressed her perception that unless Mrs. Riffle told them that there

was bleeding, “we have no reason to believe that that is so.” Frabotta and Kelly agreed that they

treated Mrs. Riffle as a patient with a routine first pregnancy rather than an obstetrical

emergency. Mr. Riffle perceived as much, noting that “it seemed as though it was made out that

simply her water broke and we were just first time parents and just didn’t understand.”

       {¶10} Given these facts, the trial court correctly determined that there are genuine issues

of material fact regarding whether Frabotta and Kelly failed to exercise care in connection with

Mrs. Riffle’s treatment and, although aware of the risks inherent in the situation, failed to avoid

the risk with indifference to the resulting harm. The motion for summary judgment was properly

denied on this basis. Because this appeal is limited to a determination of whether the benefit of

immunity was wrongly denied to the appellants under R.C. 2744.02(C), the alternative argument

that the actions of Frabotta and Kelly did not proximately cause Tenley Riffle’s death are not

properly before the Court at this time.
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                                                III.

       {¶11} The assignment of error is overruled, and the judgment of the Summit County

Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellants.




                                                       DONNA J. CARR
                                                       FOR THE COURT



MOORE, J.
SCHAFER, J.
CONCUR.
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APPEARANCES:

EVE V. BELFANCE, Director of Law, and JOHN CHRISTOPHER REECE and MICHAEL J.
DEFIBAUGH, Assistant Directors of Law, for Appellants.

JOSEPH L. DILTS and REBECCA L. CULL, Attorneys at Law, for Appellee.
