[Cite as Mashburn v. Dutcher, 2012-Ohio-6283.]


                                      COURT OF APPEALS
                                   DELAWARE COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT


JOHN B. MASHBURN,                                :      JUDGES:
                                                 :
                                                 :      Hon. Patricia A. Delaney, P.J.
                  Plaintiff-Appellant            :      Hon. W. Scott Gwin, J.
                                                 :      Hon. John W. Wise, J.
-vs-                                             :
                                                 :      Case No. 12 CAE 010003
JEFFREY D. DUTCHER, et al.                       :
                                                 :
                                                 :
                   Defendants-Appellees          :      OPINION



CHARACTER OF PROCEEDING:                             Appeal from the Delaware County Court of
                                                     Common Pleas, Case No. 09 CVC 030344


JUDGMENT:                                            AFFIRMED



DATE OF JUDGMENT ENTRY:                              December 27, 2012



APPEARANCES:

For Appellant:                                          For Appellee:

JAMES P. CONNORS                                        MARK H. GAMS
145 East Rich St., Suite 200                            M. JASON FOUNDS
Columbus, OH 43215                                      471 East Broad St., 19th Floor
                                                        Columbus, OH 43215-3872

                                                       W. CHARLES CURLEY
                                                       10 West Broad St., Suite 2400
                                                       Columbus, OH 43215-5445
[Cite as Mashburn v. Dutcher, 2012-Ohio-6283.]


Delaney, J.

        {¶1} Plaintiff-appellant John B. Mashburn appeals from the December 9, 2011

judgment entry of the Delaware County Court of Common Pleas granting the motion

for summary judgment filed by defendant-appellees Jeffrey D. Dutcher (“Dutcher”) and

the Elm Valley Joint Fire District (“Elm Valley”).

                            FACTS AND PROCEDURAL HISTORY

        {¶2} Dutcher is a volunteer firefighter with Elm Valley. This case arose in the

late afternoon of June 10, 2006, when Dutcher received two pages from Elm Valley

while at his home. Dutcher immediately left his home in his personal vehicle, a Chevy

Suburban, to respond to the fire station, traveling westbound on State Route 229.

        {¶3} Meanwhile, decedent Gary Bruce (“Bruce”) also traveled westbound on

State Route 229 driving a Dodge Dakota pickup truck and hauling a boat trailer with a

canoe on top. Bruce stopped to turn left into a self-storage facility, “229 Storage.”

Two vehicles behind Bruce slowed.

        {¶4} Dutcher approached the three vehicles.          Behind him, in a separate

vehicle, was another firefighter, Keith Luce. Bruce turned left into the storage facility

as Dutcher went left of center to pass the two vehicles immediately behind Bruce in a

legal passing zone. Dutcher safely passed the first two vehicles, but struck Bruce’s

vehicle as Bruce turned left into the storage facility. The vehicles collided and went off

the left side of the road. Dutcher’s vehicle rolled over into a fence and Bruce’s truck

flipped onto its side. Bruce died two days later of injuries sustained in the collision.
Delaware County, Case No. 12 CAE-01-0003                                                      3


          {¶5} Appellant brought suit on behalf of decedent Bruce against appellees

Dutcher and the Elm Valley Joint Fire District,1 asserting three causes of action: (1)

negligence/wrongful death; (2) negligence per se; and (3) survival action.

          {¶6} Dutcher and Elm Valley filed a motion for summary judgment, arguing

Dutcher was acting in the course and scope of his employment as an emergency

responder, no evidence exists he acted recklessly or wantonly, and he is therefore

entitled to sovereign immunity pursuant to R.C. 2744.03, and Elm Valley is thus

entitled to assert sovereign immunity pursuant to R.C. 2744.02. Appellant responded,

appellee replied, and both parties filed supplemental memoranda.

                                        The Civ.R. 56 evidence

          {¶7} Appellees offered the following evidence in support of their motion for

summary judgment: Dutcher’s affidavit, the deposition transcript of Keith Luce, the

affidavit of Patti Lewis, which included the “Joint Resolution dated June 12, 2000

among the Village of Ashley and Peru, Westfield, and Oxford Townships to create a

joint fire district;” the Constitution of Elm Valley Joint Fire District adopted August 14,

2000; and Dutcher’s W-2 statements for the years 2005, 2006, and 2007. Appellees

also offered report number 59-0884-59 of the Ohio State Highway Patrol,

authenticated by affidavit of Ohio Department of Public Safety records technician

Jeffrey L. Maute.

          {¶8} Appellant offered the following evidence in opposition to appellees’

motion for summary judgment: Dutcher’s deposition transcript, Luce’s deposition

transcript, and the affidavit of James D. Stover. Appellant also included the following

exhibits which were not sworn, certified, or authenticated pursuant to Civ.R. 56(E) but
1
    Defendant Village of Ashley was dismissed as a party and is not a party to this appeal.
Delaware County, Case No. 12 CAE-01-0003                                               4


were considered by the trial court absent objection by appellees: the Elm Valley Joint

Fire District Standard Operating Guidelines, Emergency Vehicle Driver Training

Program Instructor’s Guide, and Jeff Dutcher Application for Membership to Ashley

Community Fire Co.

  The evidence of Dutcher’s affidavit, deposition testimony, and statement to OSHP

       {¶9} Dutcher’s affidavit indicates he is a volunteer firefighter for Elm Valley

whose duties include responding to fires and to calls for emergency medical care and

treatment. On June 10, 2006, he received two pages to respond to an emergency call

involving an automobile accident. His Chevy Suburban was equipped with lights and

sirens and he activated the lights and siren upon responding to this call.

       {¶10} The roadway where the collision occurred is a two-lane road with one

lane of traffic for each direction, a posted speed limit of 55 m.p.h., and both lanes are

separated by a broken yellow line. The area of the collision is a legal passing zone.

Dutcher was driving approximately 60 m.p.h.

       {¶11} As he traveled west on State Route 229, three vehicles were ahead of

him, with the third vehicle being Bruce’s. Upon Dutcher’s approach, the two vehicles

behind Bruce’s vehicle moved to the side of the road.          Dutcher observed those

vehicles slow down and pull to the side of the road, and he was in the midst of safely

passing those vehicles when Bruce turned left to turn into the storage facility.   Bruce

entered Dutcher’s path as he turned left, and Dutcher immediately applied his brakes

and attempted to avoid the collision. Dutcher never saw Bruce’s brake lights or turn

signal activated.
Delaware County, Case No. 12 CAE-01-0003                                             5

                        The deposition testimony of Keith J. Luce

       {¶12} Keith J. Luce (“Luce”) was also employed by Elm Valley. While at a

graduation party, he received a page on June 10, 2006 to respond to an automobile

accident “with multiple ejections.”    As he left the party, he heard sirens and saw

Dutcher’s vehicle pass; he saw the lights of Dutcher’s vehicle on and heard its siren.

Luce followed Dutcher’s vehicle and paced it traveling between 60 and 65 m.p.h.

While driving on State Route 229, both Dutcher and Luce passed two vehicles which

had slowed down and pulled to the right side of the roadway to permit Dutcher and

Luce to pass.    Luce observed three vehicles in front of Dutcher near the storage

facility, observed the vehicles slow and pull to the side of the road, and observed

Dutcher enter the left lane to pass the three vehicles. Luce did not see any brake

lights or turn signals from Bruce’s truck and trailer. He observed Bruce turn left in

front of Dutcher, saw Dutcher’s brake lights come on, and saw the impact of the two

vehicles with Dutcher striking Bruce’s vehicle directly on the driver’s-side door.

                 Affidavit of James D. Stover, witness at “229 Storage”

       {¶13} James D. Stover (“Stover”) is the owner of the 229 Storage facility. On

June 10, 2006 he was waiting to meet with a customer on the west side of the facility

when he heard the sound of a siren, followed almost immediately by the sound of a

collision. State Route 229 is on the north side of the business. He ran to the front of

the storage facility and drove to the area of the accident.       Stover was unable to

definitively state whether the siren he heard emanated from the first responder

(Dutcher) or the second responder (Luce), and he did not see the vehicles prior to the

collision, nor did he see the collision take place.
Delaware County, Case No. 12 CAE-01-0003                                            6

  Relevant portions of Elm Valley’s Standard Operating Guidelines and Department
                         Policies for emergency responders

      {¶1} Appellant’s evidentiary material included the Elm Valley Fire District

Department Policies (Rev. 08/2002) contained within the Elm Valley Joint Fire District

Standard Operating Guidelines, which state in pertinent part:

      11. Response in privately owned vehicles

      When any member responds to the station or to the scene of an

      emergency in his/her private vehicle, each member must strictly adhere

      to all applicable motor vehicle laws. Privately owned vehicles are not

      provided with the same exemptions that are provided to emergency

      vehicles. No member of the organization will be permitted to violate any

      motor vehicle laws. While it is recognized that timeliness in response to

      an emergency is important, it is imperative that all drivers understand

      that their private vehicles are not emergency vehicles and therefore are

      not afforded any exemptions or special privileges under state law. * * * *.

      Personal Vehicle—Lights and Sirens

      * * * *.

      A personal vehicle becomes a public safety vehicle when it is responding

      to an emergency call and has the following equipment installed and

      operating. The personal vehicle must be equipped with an *** displaying

      at least one flashing light, rotating, or oscillating light visible under

      normal atmospheric conditions from a distance of five hundred feet to the

      front of the vehicle and the vehicle must be equipped with an audible

      siren. * * * *.
Delaware County, Case No. 12 CAE-01-0003                                          7


     {¶2} The Standard Operating Guidelines also provide in pertinent part:

     2. Warning devices and true emergencies

     When responding to a “true emergency,” all audible and visual warning

     devices will be operated at all times regardless of time of day and/or

     traffic conditions. All emergency vehicle drivers must understand that

     warning devices are not always effective in making other vehicle

     operators aware of your presence. Warning devices only request the

     right-of-way, they do not insure the right-of-way.

     The definition of a true emergency is a situation in which there is a high

     probability of death or serious injury to an individual or significant

     property loss, and actions by an emergency vehicle driver may reduce

     the seriousness of the situation. (Emphasis in original.)

     3. Vehicle control and right-of-way

     All drivers shall attempt to maintain control of the vehicle that they are

     operating in such a manner as to provide the maximum level of safety for

     both their passengers and the general public. Emergency vehicle drivers

     should be aware that the civilian operators may not react in the manner

     in which is expected or felt to be appropriate. An attempt should be

     made to have options available when passing or overtaking vehicles. If

     another vehicle operator fails to yield the right of way to an emergency

     vehicle, the emergency vehicle cannot force the right of way, nor can you

     assume the right of way, therefore you do not have the right of way until

     the other vehicle yields to you.
Delaware County, Case No. 12 CAE-01-0003                                          8


      * * * *.

      4. Response speeds

      When responding to a true emergency only, drivers shall operate the

      vehicle they are driving as close to the posted speed limit as possible,

      but not to exceed ten (10) miles per hour over the posted speed limit,

      conditions permitting. * * * *.

      {¶3} Elm Valley’s department policies note the following:

      14)        RESPONDING:       UPON NOTIFICATION OF A RUN, ALL

      MEMBERS        WILL     REPORT     TO    THE   FIRE   STATION    FIRST

      REGARDLESS OF THE NATURE OF THE CALL UNLESS THERE IS A

      JUSTIFIABLE REASON FOR NOT DOING SO.

      15)    ALL MEMBERS RESPONDING TO A CALL WILL REPORT TO

      THE FIRE STATION BEFORE GOING TO THE EMERGENCY SCENE

      UNLESS THE CALL IN (sic) ON YOUR NORMAL ROUTE TO THE FIRE

      STATION AND YOU DON’T ENDANGER YOURSELF BY PROVIDING

      IMMEDIATE AID AT THE SCENE.

      {¶4} On December 9, 2011, the trial court granted appellees’ motion for

summary judgment, finding appellant failed to state any facts indicating that an

exception to statutory sovereign immunity applies to appellees, and no evidence

existed Dutcher operated his vehicle in a manner which was with a malicious purpose,

in bad faith, or in a wanton or reckless manner.

      {¶5} Appellant now appeals from the judgment entry of the trial court granting

appellees’ motion for summary judgment.
Delaware County, Case No. 12 CAE-01-0003                                             9


      {¶6} Appellant raises one Assignment of Error:

      {¶7}   “I.    THE TRIAL COURT ERRED BY GRANTING SUMMARY

JUDGMENT TO THE DEFENDANTS ON THE BASIS OF IMMUNITY UNDER R.C.

2744.02 AND 2744.03.”

                                          I.

      {¶8} Appellant argues the trial court erred in granting summary judgment for

appellees because material issues of fact exist which should be weighed by a jury.

      {¶9} Summary judgment motions are to be resolved in light of the dictates of

Civ.R. 56, which was reaffirmed by the Ohio Supreme Court in State ex rel.

Zimmerman v. Tompkins, 75 Ohio St.3d 447, 448, 663 N.E.2d 639 (1996):

      {¶10} Civ.R. 56(C) provides that before summary judgment may be granted, it

must be determined that (1) no genuine issue as to any material fact remains to be

litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) it

appears from the evidence that reasonable minds can come to but one conclusion,

and viewing such evidence most strongly in favor of the nonmoving party, that

conclusion is adverse to the party against whom the motion for summary judgment is

made. State ex rel. Parsons v. Fleming, 68 Ohio St.3d 509, 511, 628 N.E.2d 1377

(1994), citing Temple v. Wean United, Inc. 50 Ohio St.2d 317, 327, 364 N.E.2d 267

(1977).

      {¶11} As an appellate court reviewing summary judgment motions, we must

stand in the shoes of the trial court and review summary judgment motions on the

same standard and evidence as the trial court. Smiddy v. The Wedding Party, Inc.,

30 Ohio St.3d 35, 36, 56 N.E.2d 212 (1987).
Delaware County, Case No. 12 CAE-01-0003                                                  10


      {¶12} In the instant case, the trial court granted appellees’ motion for summary

judgment finding no evidence existed Dutcher operated his vehicle without lights or a

siren, and no evidence existed he operated his vehicle in violation of Elm Valley’s

policies and guidelines or in violation of traffic laws.       Therefore, the trial court

concluded, there was no evidence he operated his vehicle with a malicious purpose, in

bad faith, or in a wanton or reckless manner.

                                 The Relevant Statutes

      {¶13} 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.”

      {¶14} R.C. 2744.01(F) defines “political subdivision” as a municipal corporation

* * * or other body corporate and politic responsible for governmental activities in a

geographic area smaller than that of the state, [including a] * * * * fire and ambulance

district created pursuant to section 505.375 of the Revised Code.”

      {¶15} R.C. 505.375(A)(1)(a) states, “The boards of township trustees of one or

more townships and the legislative authorities of one or more municipal corporations,

or the legislative authorities of two or more municipal corporations, or the boards of

township trustees of two or more townships, may negotiate an agreement to form a

fire and ambulance district for the delivery of both fire and ambulance services. The

agreement shall be ratified by the adoption of a joint resolution by a majority of the

members of each board of township trustees involved and a majority of the members
Delaware County, Case No. 12 CAE-01-0003                                                11


of the legislative authority of each municipal corporation involved. The joint resolution

shall specify a date on which the fire and ambulance district shall come into being.”

      {¶16} Appellees fit squarely within Ohio’s statutory sovereign immunity. It is

undisputed that Elm Valley was created according to R.C. 505.375 and is therefore a

government fire department. The provision or nonprovision of police, fire, emergency

medical, ambulance, and rescue services or protection is specifically delineated as a

governmental function pursuant to R.C. 2744.01(C)(2).

      {¶17} Dutcher was employed by Elm Valley and his duties included responding

to fires and calls for emergency medical care. On June 10,2006, Dutcher received

two pages to respond to an emergency call of an auto accident. The collision between

Dutcher’s vehicle and Bruce’s vehicle occurred during Dutcher’s response to the

pages.   R.C. 2744.01(B) defines “employee” as “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.” Appellee Dutcher is an employee of appellee

Elm Valley.

                             Sovereign Immunity Analysis

      {¶18} The Ohio Supreme Court has held, “Determining whether a political

subdivision is immune from tort liability pursuant to R.C. 2744 involves a three-tiered

analysis. Greene Cty. Agricultural Soc. v. Liming, 89 Ohio St.3d 551, 556-557, 733

N.E.2d 1141 (2000). The first tier is the general rule that a political subdivision is

immune from liability incurred in performing either a governmental or proprietary

function. Id. At 556-557; R.C. 2744.02(A)(1). However, that immunity is not absolute.
Delaware County, Case No. 12 CAE-01-0003                                                   12

R.C. 2744.02(B); Cater v. Cleveland, 83 Ohio St.3d 24, 28, 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

subdivision to liability.” Id. At this tier, the court may also need to determine whether

specific defenses to liability for negligent operation of a motor vehicle listed in R.C.

2744.02(B)(1)(a) through (c) apply.

        {¶19} “If any of the exceptions to immunity in R.C. 2744.02(B) do apply and no

defense in that section protects the political subdivision from liability, then the third tier

of the analysis requires a court to determine whether any of the defenses in R.C.

2744.03 apply, thereby providing the political subdivision a defense against liability.”

Colbert v. Cleveland, 99 Ohio St.3d 210, 2003-Ohio-3319, 790 N.E.2d 781 at ¶¶ 7-9.

        {¶20} The three-tiered analysis of liability applicable to a political subdivision as

set forth above does not apply when determining whether an employee of the political

subdivision will be liable for harm caused to an individual. Cramer v. Auglaize Acres,

113 Ohio St.3d 266, 2007-Ohio-1946, 865 N.E.2d 9, ¶ 17.

        {¶21} Pursuant to R.C. 2744.03(A)(6), an employee of a political subdivision is

immune from liability unless: (a) The employee’s acts or omissions were manifestly

outside the scope of the employee’s employment or official responsibilities; (b) The

employee’s acts or omissions were with malicious purpose, in bad faith, or in a wanton

or reckless manner.

        {¶22} Appellees assert liability is barred by Ohio’s statutory sovereign immunity

pursuant to R.C. 2744.02(A)(1) and R.C. 2744.02(B)(1)(c), which state in pertinent

part:
Delaware County, Case No. 12 CAE-01-0003                                               13


     (A)(1) For the purposes of this chapter, the functions of political

     subdivisions are hereby classified as governmental functions and

     proprietary functions. Except as provided in division (B) of this section, 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.

     * * * *.

     (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:

     (c) A member of an emergency medical service owned or operated by a

     political subdivision was operating a motor vehicle while responding to or

     completing a call for emergency medical care or treatment, the member

     was holding a valid commercial driver's license issued pursuant to

     Chapter 4506. or a driver's license issued pursuant to Chapter 4507. of
Delaware County, Case No. 12 CAE-01-0003                                               14


       the Revised Code, the operation of the vehicle did not constitute willful or

       wanton misconduct, and the operation complies with the precautions of

       section 4511.03 of the Revised Code.

                        Dutcher responded to an emergency call

       {¶23} The first issue we must address is appellant’s assertion Dutcher was not

on an “emergency call” because upon being paged, he was required to report to the

fire station in his private vehicle and did not yet know if he would be required to report

to the scene of a motor vehicle and in what capacity. We find Dutcher did respond to

an “emergency call” as defined in R.C. 2744.01(A): “Emergency call” means a call to

duty, including, but not limited to, communications from citizens, police dispatches,

and personal observations by peace officers of inherently dangerous situations that

demand an immediate response on the part of a peace officer.” The Ohio Supreme

Court has further defined the “call to duty” described in the statute, noting “duty”

means “obligatory tasks, conduct, service, or functions enjoined by order or usage

according to rank, occupation, or profession.” Colbert v. Cleveland, 99 Ohio St.3d

215, 217, 790 N.E.2d 781 (2003), citing Webster's Third New International Dictionary

(1986).   The Court concluded a call to duty is a situation in which a response is

required by the officer’s professional obligation. Id.

       {¶24} Dutcher was on the road solely because he was responding to the pages

as his job duties with Elm Valley required him to do. We find no issue of fact exists as

to whether Dutcher was responding to an emergency call.
Delaware County, Case No. 12 CAE-01-0003                                                15

          Dutcher did not act with malicious purpose, in bad faith, or in a wanton or
                                       reckless manner

       {¶25} The next issue we must address is whether Dutcher’s conduct was “with

malicious purpose, in bad faith, or in a wanton or reckless manner” so as to restore

liability for Dutcher pursuant to R.C. 2744.03(A)(6), and whether Dutcher’s conduct

“constitute[d] willful or wanton misconduct” and failed to comply with the precautions of

R.C. 4511.03 so as to restore liability for Elm Valley pursuant to R.C. 2744.02(B)(1)(c).

       {¶26} We therefore turn to the issue of what constitutes willful, wanton, and

reckless conduct under R.C. 2744.

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

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

legal standards. Gardner v. Ohio Valley Region Sports Car Club of Am., 10th Dist. No.

01 AP–1280, 2002–Ohio–3556 at ¶ 11.
Delaware County, Case No. 12 CAE-01-0003                                            16


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

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

Wanton misconduct has also been likened to conduct that manifests a “disposition to

perversity.” Seymour v. New Bremen Speedway, 31 Ohio App.3d 141, 148, 509

N.E.2d 90 (1971), quoting Roszman v. Sammett, 26 Ohio St.2d 94, 269 N.E.2d 420

(1971), 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., 70 Ohio St.3d 351, 356, 639

N.E.2d 31 (1994), quoting Roszman, supra. See Gardner v. Ohio Valley Region

Sports Car Club of Am., 10th Dist. No. 01 AP–1280, 2002–Ohio–3556 at ¶ 13.

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

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

quoting McKinney v. Hartz & Restle Realtors, Inc., 31 Ohio St.3d 244, 246, 510

N.E.2d 386 (1987). Willful misconduct is something more than negligence and it

imports a more positive mental condition prompting an act than wanton misconduct.

Phillips v. Dayton Power & Light Co., 93 Ohio App.3d 111, 119, 637 N.E.2d 963

(1994), citing Tighe v. Diamond, 149 Ohio St. 520, 526–527, 80 N.E.2d 122 (1948).

      {¶31} 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,
Delaware County, Case No. 12 CAE-01-0003                                               17


932 N.E.2d 960, 2010–Ohio–2273 at ¶ 32. (Citations and internal quotation marks

omitted).

       {¶32} 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, 854 N.E.2d 532, quoting Tighe v. Diamond,

149 Ohio St. 520, 527, 80 N.E.2d 122 (1948). In Gladon v. Greater Cleveland

Regional Transit Auth., 75 Ohio St.3d 312, 319, 662 N.E.2d 287 (1996), the Supreme

Court defined the term “willful misconduct” as “the intent, purpose, or design to injure.”

       {¶33} 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, 53 Ohio St.3d 95, 100, 559 N.E.2d 699 (1990) at n. 3. 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:

       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
Delaware County, Case No. 12 CAE-01-0003                                              18


     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.

     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 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.
Delaware County, Case No. 12 CAE-01-0003                                              19

      See also Marchant v. Gouge, supra at ¶ 36.

                          Dutcher’s conduct was not reckless

      {¶34} Appellant asserts reasonable minds could draw different conclusions

regarding whether Dutcher operated his personal vehicle recklessly. We disagree.

      {¶35} 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.

      {¶36} The Ohio Supreme Court has explained:

      * * *[N]egligence 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
Delaware County, Case No. 12 CAE-01-0003                                              20


       risk substantially greater in amount than that which is necessary to make

       his conduct negligent. The person does 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.

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

intentional, and there are no bright lines. 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, 605 N.E.2d 445, citing Osler v. Lorain (1986), 28 Ohio St.3d 345, 504

N.E.2d 19; Hawkins v. Ivy (1977), 50 Oho St.2d 144, 50 Ohio St.2d 114, 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.

                   Our recent decisions in Anderson and Burlingame

       {¶38} We are mindful in this case of our recent decisions in Burlingame v.

Estate of Burlingame, 5th Dist. No. 2010-CA-00124, 2011-Ohio-1325, appeal allowed

129 Ohio St.3d 1449, 2011-Ohio-4217, 951 N.E.2d 1046, and rev’d by Anderson v.

Massillon, Slip Opinion No. 2012-Ohio-5711 and Anderson v. Massillon, 193 Ohio

App.3d 297, 2011-Ohio-1328, 951 N.E.2d 1063 (5th Dist.2011), appeal allowed 129
Delaware County, Case No. 12 CAE-01-0003                                              21

Ohio St.3d 1449, 2011-Ohio-4217, 951 N.E.2d 1046 and aff’d by Anderson v.

Massillon, Slip Opinion No. 2012-Ohio-5711.       In those cases, which also involve

collisions triggered by emergency responders, we found factual issues of recklessness

on the part of the emergency responders precluded summary judgment for the political

subdivisions and employees.

      {¶39} The Ohio Supreme Court recently clarified our position, holding that

“[w]ilfull, wanton, and reckless describe different degrees of care and are not

interchangeable.”    Anderson v. Massillon, Slip Opinion No. 2012-Ohio-5711,

paragraph one of the syllabus. Most relevant to our analysis here, the Court reiterated

that violation of a statute, ordinance, or departmental policy enacted for the safety of

the public is not per se willful, wanton, or reckless conduct but may be relevant to

determining the culpability of a course of conduct. Id., citations omitted, Slip Opinion

No. 2012-Ohio-5711 at ¶ 37. Nevertheless, “without evidence of an accompanying

knowledge that the violations will ‘in all probability result in injury,’ evidence that

policies have been violated demonstrates negligence at best.” Id., internal citations

omitted. In the instant case, we find no evidence of a violation of a statute, ordinance,

or departmental policy, much less willful or wanton misconduct that would overcome

statutory sovereign immunity.

      {¶40} We have noted time and again that these issues of sovereign immunity

turn on their individual facts. That principle is at work in this case, in which we find

reasonable minds could not come to different conclusions about Dutcher’s operation

of the vehicle. No evidence of wanton or willful misconduct exists regarding Dutcher’s
Delaware County, Case No. 12 CAE-01-0003                                              22

operation of his vehicle. Nor does any party allege Dutcher failed to exercise any care

or had a positive mental condition bent upon causing harm.

       {¶41} We have noted willful misconduct may be discerned from an intentional

deviation from a clear duty or rule of conduct, but based upon the relevant portions of

Elm Valley’s standard operating guidelines and departmental policies, supra, and the

relevant portions of Ohio’s traffic code, no evidence exists of willful misconduct.

       {¶42} No evidence exists Dutcher violated any departmental policy or standard

operating guideline, as described supra.        Similarly, no evidence exists Dutcher

violated any applicable provision of the Ohio Revised Code.

       {¶43} R.C. 4513.21 states in pertinent part:

       Every emergency vehicle shall be equipped with a siren, whistle, or bell,

       capable of emitting sound audible under normal conditions from a

       distance of not less than five hundred feet and of a type approved by the

       director of public safety. Such equipment shall not be used except when

       such vehicle is operated in response to an emergency call or is in the

       immediate pursuit of an actual or suspected violator of the law, in which

       case the driver of the emergency vehicle shall sound such equipment

       when it is necessary to warn pedestrians and other drivers of the

       approach thereof.

       {¶44} Regarding yielding the right-of-way to emergency vehicles, R.C. 4511.45

and 4511.452 state in pertinent part, respectively:

       (A)(1) Upon the approach of a public safety vehicle or coroner's vehicle,

       equipped with at least one flashing, rotating or oscillating light visible
Delaware County, Case No. 12 CAE-01-0003                                               23


     under normal atmospheric conditions from a distance of five hundred feet

     to the front of the vehicle and the driver is giving an audible signal by

     siren, exhaust whistle, or bell, no driver of any other vehicle shall fail to

     yield the right-of-way, immediately drive if practical to a position parallel

     to, and as close as possible to, the right edge or curb of the highway

     clear of any intersection, and stop and remain in that position until the

     public safety vehicle or coroner's vehicle has passed, except when

     otherwise directed by a police officer.

     (2) Upon the approach of a public safety vehicle or coroner's vehicle, as

     stated in division (A)(1) of this section, no operator of any streetcar or

     trackless trolley shall fail to immediately stop the streetcar or trackless

     trolley clear of any intersection and keep it in that position until the public

     safety vehicle or coroner's vehicle has passed, except when otherwise

     directed by a police officer.

     (B) This section does not relieve the driver of a public safety vehicle or

     coroner's vehicle from the duty to drive with due regard for the safety of

     all persons and property upon the highway.

     (A) Upon the immediate approach of a public safety vehicle, as stated in

     section 4511.45 of the Revised Code, every pedestrian shall yield the

     right-of-way to the public safety vehicle.

     (B) This section shall not relieve the driver of a public safety vehicle from

     the duty to exercise due care to avoid colliding with any pedestrian.
Delaware County, Case No. 12 CAE-01-0003                                               24


       {¶45} Regarding lawful passing, R.C. 4511.29 and 4511.30 state in

pertinent part, respectively:

       (A) No vehicle or trackless trolley shall be driven to the left of the center

       of the roadway in overtaking and passing traffic proceeding in the same

       direction, unless such left side is clearly visible and is free of oncoming

       traffic for a sufficient distance ahead to permit such overtaking and

       passing to be completely made, without interfering with the safe

       operation of any traffic approaching from the opposite direction or any

       traffic overtaken. In every event the overtaking vehicle or trackless trolley

       must return to an authorized lane of travel as soon as practicable and in

       the event the passing movement involves the use of a lane authorized

       for traffic approaching from the opposite direction, before coming within

       two hundred feet of any approaching vehicle.

       (A) No vehicle or trackless trolley shall be driven upon the left side of the

       roadway under the following conditions:

       (1) When approaching the crest of a grade or upon a curve in the

       highway, where the operator's view is obstructed within such a distance

       as to create a hazard in the event traffic might approach from the

       opposite direction;

       (2) When the view is obstructed upon approaching within one hundred

       feet of any bridge, viaduct, or tunnel;

       (3) When approaching within one hundred feet of or traversing any

       intersection or railroad grade crossing.
Delaware County, Case No. 12 CAE-01-0003                                             25


      {¶1} R.C. 4511.041 states:

      Sections 4511.12, 4511.13, 4511.131, 4511.132, 4511.14, 4511. 202,

      4511.21, 4511.211, 4511.22, 4511.23, 4511.25, 4511.26, 4511.27,

      4511.28, 4511.29, 4511.30, 4511.31, 4511.32, 4511.33, 4511.34,

      4511.35, 4511. 36, 4511.37, 4511.38, 4511.39, 4511.40, 4511.41,

      4511.42, 4511.43, 4511.431, 4511.432, 4511.44, 4511.441, 4511.57,

      4511.58, 4511.59, 4511.60, 4511.61, 4511.62, 4511.66, 4511.68,

      4511.681, and 4511.69 of the Revised Code do not apply to the driver of

      an emergency vehicle or public safety vehicle if the emergency vehicle or

      public safety vehicle is responding to an emergency call, is equipped

      with and displaying at least one flashing, rotating, or oscillating light

      visible under normal atmospheric conditions from a distance of five

      hundred feet to the front of the vehicle and if the driver of the vehicle is

      giving an audible signal by siren, exhaust whistle, or bell. This section

      does not relieve the driver of an emergency vehicle or public safety

      vehicle from the duty to drive with due regard for the safety of all persons

      and property upon the highway.

      {¶2} In the instant case, it is undisputed Dutcher was traveling at

approximately 60 m.p.h. in a 55-m.p.h. zone, which is within the Elm Valley operating

guidelines. It is undisputed Dutcher passed the vehicles in a legal passing zone.

Dutcher and Luce testified the two vehicles immediately behind Bruce’s vehicle

slowed and pulled to the right as Dutcher approached them. Bruce’s vehicle also

slowed and moved to the right.
Delaware County, Case No. 12 CAE-01-0003                                              26


       {¶3} The trial court found Dutcher’s decision to pass all three vehicles was

undertaken with the good-faith belief he was not placing these three vehicles and the

occupants in any unnecessary risk of physical harm, and we agree. See, Elsass v.

Crockett, 9th Dist. No. 22282, 2005-Ohio-2142; Cunningham v. City of Akron, 9th Dist.

No. 22818, 2006-Ohio-518, citing Semple v. Hope, 15 Ohio St.3d 372, 474 N.E.2d 314

(1984).

       {¶4} Dutcher testified his vehicle was equipped with an audible signal and at

least 16 various lights which were in use as he responded to the Elm Valley dispatch

on June 10, 2006. Luce testified he heard the siren as he left the graduation party

upon the dispatch, and identified the siren as coming from Dutcher’s vehicle. He

observed Dutcher’s vehicles with all of its lights activated. He corroborated that the

first two vehicles responded to Dutcher’s signals by slowing down and pulling off to the

right side of the roadway to permit Dutcher to pass.

       {¶5} As the trial court pointed out, appellant offered Stocker’s testimony to

dispute the testimony of Dutcher and Luce, but Stocker was not in a position to see

the vehicles prior to the collision. His testimony was not definitive and does not create

a dispute of material fact.

       {¶6} In conclusion, we find appellant has not stated any operative facts

establishing an exception to statutory immunity.       Moreover, while the question of

whether Dutcher acted with willful and wanton disregard is generally a question for the

jury, we must concur with the trial court that viewing the evidence in a light most

favorable to appellant, there is simply no evidence Dutcher operated his vehicle
Delaware County, Case No. 12 CAE-01-0003                                              27


without lights or siren in operation; nor is there evidence Dutcher violated Elm Valley’s

policies and guidelines or applicable traffic statutes.

       {¶7} Appellant’s sole assignment of error is therefore overruled and the

judgment of the Delaware County Court of Common Pleas is affirmed.

By: Delaney, P.J.

Gwin, J. and

Wise, J. concur.



                                         HON. PATRICIA A. DELANEY



                                         HON. W. SCOTT GWIN



                                         HON. JOHN W. WISE




PAD:kgb
[Cite as Mashburn v. Dutcher, 2012-Ohio-6283.]


            IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO

                                  FIFTH APPELLATE DISTRICT

JOHN B. MASHBURN, ADM.                             :
                                                   :
                                                   :
                    Plaintiff-Appellant            :
                                                   :
-vs-                                               :   JUDGMENT ENTRY
                                                   :
JEFFREY D. DUTCHER, et al.                         :
                                                   :
                                                   :   Case No. 12 CAE-01-0003
                    Defendants-Appellees           :




       For the reasons stated in our accompanying Opinion on file, the judgment of the

Delaware County Court of Common Pleas is affirmed. Costs assessed to Appellant.




                                                 HON. PATRICIA A. DELANEY



                                                 HON. W. SCOTT GWIN



                                                 HON. JOHN W. WISE
