[Cite as Johnson v. Cleveland, 194 Ohio App.3d 355, 2011-Ohio-2152.]




                Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA


                             JOURNAL ENTRY AND OPINION
                                      No. 95688




                                          JOHNSON,
                                                         APPELLEE,

                                                    v.

                       CITY OF CLEVELAND ET AL.,
                                                         APPELLANTS.




                                          JUDGMENT:
                                           REVERSED



                                     Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                     Case No. CV-676734

        BEFORE: S. Gallagher, J., Celebrezze, P.J., and Jones, J.

        RELEASED AND JOURNALIZED: May 5, 2011
     Friedman, Domiano & Smith Co., L.P.A., Jeffrey H. Friedman, David R. Grant,
Donna Kolis, and Stephen S. Vanek, for appellees.

       Robert J. Triozzi, Cleveland Director of Law, L. Stewart Hastings, Chief Assistant
Director of Law, and William F. Gibson and Ami J. Patel, Assistant Directors of Law, for
appellant.




       SEAN C. GALLAGHER, Judge.

       {¶ 1} Defendants-appellants the city of Cleveland, Shanna Stosak, Tracy

McArthur, and Renee O’Neill appeal the decision of the Cuyahoga County Court of

Common Pleas that denied their motion for summary judgment, which asserted

political-subdivision immunity. Plaintiff-appellee Douglas Johnson filed a cross-appeal

challenging the trial court’s denial of a motion to strike. For the reasons stated herein,

we reverse the decision of the trial court on the summary-judgment ruling and enter

judgment in favor of defendants-appellants on all claims. We also overrule the challenge

raised in the cross-appeal.

       {¶ 2} On November 18, 2007, Johnson’s girlfriend, Carine Gabriel, called 9-1-1

after Johnson smoked a cigarette laced with PCP.         The call was categorized as an

overdose/poisoning/ingestion.     Gabriel and Johnson were located at a two-story

residential building at 241 East 156th Street in Cleveland.

       {¶ 3} Stosak and McArthur are employed as emergency medical technicians

(“EMTs”) with the Division of Emergency Medical Services (“EMS”) for the city of
Cleveland.   McArthur, an EMT-basic, and Stosak, an EMT-paramedic, were in the

responding EMS unit. The police were also dispatched to the scene.

      {¶ 4} When the EMS unit arrived, Gabriel informed the EMTs that Johnson had

accidentally smoked PCP and that he needed their help. She did not inform the EMTs of

the amount of drugs Johnson had ingested. She told the EMTs that she did not know

whether Johnson was violent or not. She later stated during her deposition that she had

no reason to believe that Johnson was attempting to hurt himself.

      {¶ 5} In the meantime, Johnson walked down the driveway in a normal manner.

According to Stosak, Johnson stated in a clear voice that he did not call EMS, he seemed

a little agitated that EMS was there, and he walked away. According to Gabriel, Johnson

never spoke to the EMTs and he was “really quiet and just standing there one second and

the next minute he was gone.” Johnson recalled that an ambulance was there and that he

walked down and turned around; however, he did not remember saying anything. The

EMTs were unable to physically examine Johnson or obtain his vitals. After Johnson

walked away, Stosak called to cancel the call for the Cleveland police.

      {¶ 6} Stosak admitted that Johnson did not run away, that they knew where he

went, and that they could have followed him and assessed him. However, Stosak’s

visual evaluation of Johnson did not cause her alarm because there were no signs of

obvious distress or injury, he did not show any signs of wanting to be treated, and he

appeared normal. Stosak did not find any reason to believe that the scene was unsafe,
and she found nothing to indicate that transport was necessary. According to McArthur,

there was no indication that Johnson had an altered mental status.

       {¶ 7} Gabriel then went to check on Johnson. She did not ask the EMTs to go

inside. The EMTs continued to wait in the driveway.

       {¶ 8} Gabriel found Johnson “just sitting on the bed like this in our room quiet.”

She does not remember exactly what she told the EMTs when she returned outside;

however, she “might have told [Stosak] that [Johnson] was just sitting there.” According

to Stosak, Gabriel informed her that Johnson appeared to be calming down. Gabriel

asked the EMTs to continue to wait and make sure Johnson was all right.

       {¶ 9} The EMTs informed Gabriel that they could not continue to stand around

waiting, but that if anything were to change to call back and they would transport

Johnson. Stosak called her supervisor, Captain Renee O’Neill, and informed O’Neill

that Johnson came outside, appeared fine, did not want to be seen, and went back in the

house. Stosak also told O’Neill that Gabriel came back out of the house and told the

EMTs that Johnson appeared to be calming down. Gabriel disputes that she made such a

statement. Relying on the information provided and because the patient had gone back

inside, O’Neill gave Stosak permission not to transport Johnson as a “refusal special

circumstance” and approved the EMTs to go back into service. O’Neill states in her

affidavit that she found “no reason to believe a plan for safety at the scene for [Johnson]

or others was necessary.”
       {¶ 10} The EMTs were at the address for approximately 21 minutes before they

left. There is no evidence that Johnson’s condition worsened before they left. The EMS

run report indicates that it was reported that Johnson took a hit of PCP by accident and

started to act a little strange, that his girlfriend got scared and called 9-1-1, and that

Johnson refused any help from EMS and walked away. An addendum was added to the

report later the same date, indicating that Johnson’s girlfriend had gone back into the

house to check on him and reported that he “seem[ed] like he [was] calming down” and

“she felt he would be okay.” These statements are disputed by Gabriel.

       {¶ 11} Gabriel proceeded to call Johnson’s mother and one of his friends. Both

indicated at deposition that when they spoke to Johnson on the phone, they were

concerned. Gabriel stated that she told Johnson’s mother that “he had smoked the PCP

and that [Gabriel] called emergency and that he was calm now. And I didn’t want her to

worry so I told her it’s going to be okay.” Gabriel also stated that “he was calm. He

was definitely calm and talking quietly.”

       {¶ 12} Approximately 11 minutes after EMS left the scene, they were called back

to the same residence for a “psychiatric/suicide attempt.” Johnson had jumped off a

second-story porch and seriously injured himself.       The EMS unit arrived quickly.

Stosak and McArthur immobilized Johnson, assessed his vital signs, and transported him

to Huron Road Hospital.       Johnson was treated for fractures of multiple thoracic

vertebrae, multiple rib fractures, and bilateral pneumothoraxes. He was permanently

paralyzed from the waist down.
       {¶ 13} Johnson filed this action against the city of Cleveland and EMS employees

Stosak, McArthur, and O’Neill1 (collectively, “the defendants”). After discovery was

completed, the defendants filed a motion for summary judgment, seeking dismissal of all

claims on immunity grounds. In opposing the motion, Johnson submitted deposition

transcripts and two expert affidavits.     The city filed a reply brief that included the

affidavit of the defendants’ expert witness. Johnson filed a motion to strike the affidavit

and was granted leave to file a surreply brief. The trial court denied the motion to strike

and denied the motion for summary judgment, finding that “there is an issue of fact as to

whether the acts or alleged failure to act by defendants constitutes willful and wanton

misconduct and whether such failures proximately caused [Johnson’s] injuries.” This

appeal and cross-appeal followed.

       {¶ 14} Initially, we recognize that this court’s appellate jurisdiction is confined to

reviews of final, appealable orders within the meaning of R.C. 2505.02. See Article IV,

Section 3(B)(2), Ohio Constitution; R.C. 2505.03. The defendants’ appeal challenges

the trial court’s denial of their motion for summary judgment, which asserted

political-subdivision immunity. The Ohio Supreme Court has held that “[w]hen a trial

court denies a motion in which a political subdivision or its employee seeks immunity

under R.C. Chapter 2744, that order denies the benefit of an alleged immunity and is

therefore a final, appealable order pursuant to R.C. 2744.02(C).” Hubbell v. Xenia, 115


       1
          O’Neill was added as a defendant in the second amended complaint.   We note that her
name also appears in the record as Renee O’Neil.
Ohio St.3d 77, 2007-Ohio-4839, 873 N.E.2d 878, at syllabus.           Therefore, we have

jurisdiction to consider the defendants’ appeal.

       {¶ 15} Johnson’s cross-appeal challenges the trial court’s order denying his motion

to strike defendants’ expert affidavit. This ruling pertains to evidence submitted with the

summary-judgment pleadings in support of the immunity claim. Furthermore, a decision

by this court in favor of immunity would effectively deny any “meaningful review” of the

issue. Because the ruling is inextricably intertwined with an appealable order and must

be decided to ensure “meaningful review,” we find that this court has jurisdiction to

consider the cross-appeal. See Huffman v. Pioneer Basement Water Proofing Co., Inc.,

Tuscarawas App. No. 2007 AP 08 0048, 2008-Ohio-7032 (trial court’s order striking

affidavit was a final, appealable order because it was part and parcel of the trial court’s

decision granting summary judgment).

       {¶ 16} Defendants’ first and second assignments of error provide as follows:

       {¶ 17} “1: [The] trial court erred in denying immunity to all defendants under

Ohio Revised Code Chapter 2744 and Ohio Revised Code 4765.49.

       {¶ 18} “2: [The] trial court erred in finding that an issue of fact existed as to

whether defendants’ actions or alleged failure to act constituted willful and wanton

misconduct.”

       {¶ 19} This court must conduct a de novo review of a trial court’s decision

overruling a motion for summary judgment in which a political subdivision or its

employee seeks immunity. Hubbell, 115 Ohio St.3d 77, 2007-Ohio-4839, 873 N.E.2d
878, ¶ 21. “If, after that review, only questions of law remain, the court of appeals may

resolve the appeal. If a genuine issue of material fact remains, the court of appeals can

remand the case to the trial court for further development of the facts necessary to resolve

the immunity issue.” Id.

       {¶ 20} R.C. 4765.49 specifically grants immunity to emergency-service personnel

and their municipal employers from tort claims based on their administration of

emergency medical services “unless the services are administered in a manner that

constitutes willful or wanton misconduct.” R.C. 4765.49(A) provides that “[a] first

responder,      emergency       medical      technician-basic,      emergency       medical

technician-intermediate, or emergency medical technician-paramedic is not liable in

damages in a civil action for injury, death, or loss to person or property resulting from the

individual’s administration of emergency medical services, unless the services are

administered in a manner that constitutes willful or wanton misconduct.” Similarly, R.C.

4765.49(B) provides that a “political subdivision * * * that provides emergency medical

services * * * is not liable in damages in a civil action for injury * * * arising out of any

actions taken by a first responder, EMT-basic, EMT-I, or paramedic * * * unless the

services are provided in a manner that constitutes willful or wanton misconduct.”

       {¶ 21} We also recognize that R.C. Chapter 2744 affords a general grant of

immunity to political subdivisions.         R.C. 2744.02(A)(1) provides that political

subdivisions generally are not liable in damages for injuries resulting from an act or

omission of the political subdivision or an employee thereof in connection with a
“governmental function,” which is defined under R.C. 2744.01(C)(2)(a) to include the

provision or nonprovision of emergency medical, ambulance, and rescue services. R.C.

2744.02(B) sets forth specific exceptions to the general grant of immunity. The only

relevant exception herein is R.C. 2744.02(B)(5), which provides that a political

subdivision is liable “when civil liability is expressly imposed upon the political

subdivision by a section of the Revised Code.” As discussed above, liability is not

imposed upon a political subdivision that provides emergency medical services or first

responders pursuant to R.C. 4765.49, unless there is “willful or wanton misconduct.”2

When a plaintiff has not shown that a specific exception to immunity under R.C.

2744.02(B) applies, a court need not move on to consider the defenses and immunities

provided under R.C. 2744.03.               Widen v. Pike Cty., 187 Ohio App.3d 510,

2010-Ohio-2169, 932 N.E.2d 929, ¶ 13.

       {¶ 22} Thus, we must consider whether the evidence in this case, when viewed

most strongly in Johnson’s favor, reasonably supports a finding of willful and wanton

misconduct. The Ohio Supreme Court has defined “willful” misconduct as “conduct

involving an intent, purpose or design to injure” and “wanton” misconduct as “conduct

where one ‘ “fails to exercise any care whatsoever toward those to whom he owes a duty


       2
           As recognized in Fuson v. Cincinnati (1993), 91 Ohio App.3d 734, 633 N.E.2d 612:
“Because R.C. 3303.21 [now codified under R.C. 4765.49] pertains specifically to emergency medical
services and, further, limits the immunity of a political subdivision and its emergency employees to
cases not involving willful and wanton misconduct, it is reconcilable with R.C. 2744.02(B), and we
must, accordingly, address whether the evidence in this case reasonably supports a conclusion that the
[defendants] engaged in willful and wanton misconduct.”
of care, and [t]his failure occurs under circumstances in which there is a great probability

that harm will result.” ’ ” 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, 31 OBR 449, 510 N.E.2d 386, quoting Hawkins v. Ivy (1977), 50 Ohio

St.2d 114, 4 O.O.3d 243, 363 N.E.2d 367, syllabus. The standard for showing “wanton”

misconduct is high and requires more than mere negligence.             Fabrey v. McDonald

Village Police Dept. (1994), 70 Ohio St.3d 351, 356, 639 N.E.2d 31. The evidence must

establish a disposition to perversity “under such conditions that the actor must be

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

       {¶ 23} In this case, the record demonstrates that the EMTs responded to the scene

and were informed that Johnson had “accidentally” smoked PCP, but were not informed

of the amount of drugs Johnson actually had ingested or of any violent behavior.

Johnson did not call EMS, and no family members were present. Johnson walked down

the driveway in a normal manner, did not show any signs of injury or distress or an

altered mental status, and went back into the residence without providing the EMTs with

an opportunity to physically examine him. The EMTs found no cause for alarm, no

reason to believe the scene was unsafe, and no need to transport Johnson. Consistent

therewith, the EMTs canceled the call to the police.

       {¶ 24} The EMTs proceeded to wait in the driveway while Johnson’s girlfriend

went to check on him. Gabriel did not invite the EMTs into the residence, and she

informed the EMTs that he was sitting quietly on his bed. She stated in her deposition that
she had no reason to believe that Johnson was attempting to hurt himself. There is no

evidence that Johnson’s condition worsened in the approximately 21 minutes that the

EMTs were on the scene.

       {¶ 25} Before leaving, the EMTs informed Gabriel that if anything changed, she

should call back and they would transport Johnson. The EMTs called Captain O’Neill,

who authorized the EMTs not to transport Johnson as a “refusal special circumstance”

and approved them to go back into service. Upon returning to the scene on the second

run, the EMTs immobilized Johnson, who had jumped from the second-story porch, and

transported him to the hospital.

       {¶ 26} We do not find, when construing the evidence most strongly in Johnson’s

favor, that reasonable minds could find that the actions of the emergency personnel rose

to the level of willful or wanton misconduct. There have been several similar cases in

which courts have found a lack of evidence to show willful or wanton misconduct. See

Wright v. Hamilton (2001), 141 Ohio App.3d 296, 750 N.E.2d 1190 (record fell short of

establishing willful or wanton misconduct when there was no evidence that paramedics

were aware of any great probability of harm to a defendant who presented as feeling dizzy

and not acting like herself and later suffered a stroke); Denham v. New Carlisle (2000),

138 Ohio App.3d 439, 741 N.E.2d 587 (failure to perform certain procedures and to

transport person to the hospital was not willful or wanton misconduct when emergency

personnel had no reason to believe that he suffered from anything other than severe

intoxication); Fuson, 91 Ohio App.3d 734 (no willful or wanton misconduct when
emergency personnel failed to transport an individual with a head injury who later died).

We cannot say that the record herein warrants a different result.

       {¶ 27} The expert opinions submitted by Johnson discuss the failure of the EMS

employees to follow protocol and to exercise the appropriate standard of care. While this

may well have amounted to negligent conduct, it did not rise to the level of willful or

wanton misconduct.     The legal conclusions reached by the experts do not alter the

outcome in this case. See Mitchell v. Norwalk Area Health Serv., Huron App. No.

H-05-002, 2005-Ohio-5261 (disregarding experts’ legal conclusions of willful and

wanton misconduct); Denham, 138 Ohio App.3d 439 (record did not support a claim of

willful or wanton misconduct despite expert’s legal conclusion).

       {¶ 28} There is insufficient evidence that the EMS employees engaged in willful

misconduct, involving an intent, purpose, or design to injure Johnson. Nor does the

record demonstrate that they failed to exercise any care whatsoever to Johnson, and the

circumstances do not evince that any special duty arose.            The paramedics timely

responded to the scene, visually assessed Johnson before he walked away, continued to

wait on the scene without any cause for alarm, and informed Gabriel to call back if

anything changed.     Further, the record does not support a finding that the EMS

employees should have been aware, under the circumstances, that there was any great

probability that harm would result or that they perversely disregarded a known risk.
       {¶ 29} There is no doubt that the resulting injury in this case was tragic.

However, there is simply a lack of evidence from which reasonable minds could find

willful and wanton misconduct by the EMS employees.

       {¶ 30} Accordingly, we find that the defendants are entitled to immunity under

R.C. 4765.49 and that none of the exceptions to the general grant of immunity under R.C.

Chapter 2744 apply. The first and second assignments of error are sustained.

       {¶ 31} Because of our disposition of the first two assignments of error, we need

not address defendants’ third and fourth assignments of error, which pertain to proximate

cause of injury and plaintiff’s expert opinions.3 We sustain defendants’ fifth assignment

of error and find that the city is entitled to immunity on the claims of negligent hiring,

retention, and supervision of EMS personnel pursuant to R.C. 2744.02(A) and that none

of the enumerated exceptions under R.C. 2744.02(B) apply. Even if an exception were

to apply, the defenses under R.C. 2744.03(A)(3) and (5) warrant immunity for such

discretionary acts. See Fuller v. Cuyahoga Metro. Hous. Auth., Cuyahoga App. No.

92270, 2009-Ohio-4716.

       {¶ 32} In their sixth assignment of error, defendants assert that the trial court

should have dismissed plaintiff’s claim that the applicable immunity provisions are

unconstitutional.    The Ohio Supreme Court has upheld the constitutionality of R.C.

Chapter 2744. See O’Toole v. Denihan, 118 Ohio St.3d 374, 2008-Ohio-2574, 889


       3
           We further note that the issue of proximate cause is independent of the immunity claim that
is before us for review.
N.E.2d 505, ¶ 95; Fahnbulleh v. Strahan (1995), 73 Ohio St.3d 666, 653 N.E.2d 1186.

At least one other court has rejected constitutional challenges to R.C. 4765.49. See

Dickman v. Elida Community Fire Co. (2001), 141 Ohio App.3d 589, 592, 752 N.E.2d

339. Therefore, the constitutionality challenge does not defeat an award of summary

judgment herein.

       {¶ 33} Finally, we address Johnson’s cross-appeal.        In his sole assignment of

error, Johnson argues that the trial court erred by denying his motion to strike the affidavit

of defendants’ expert, Dr. Jonathan Glauser, which was submitted with defendants’ reply

brief. Johnson was provided with Dr. Glauser’s expert report during discovery, and his

affidavit was consistent therewith. The trial court allowed Johnson an opportunity to

respond with a surreply brief, and there has been no showing of prejudice. We conclude

that the trial court did not abuse its discretion in denying Johnson’s motion to strike.

Even if the trial court had committed error in admitting and considering the affidavit, that

error was harmless. Accordingly, we overrule Johnson’s assignment of error.



                                                                         Judgment reversed.

       JONES, J., concurs.

       CELEBREZZE, P.J., concurs in judgment only.
