[Cite as Burlingame v. Estate of Burlingame, 2014-Ohio-5440.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


GRACE BURLINGAME                                     :    JUDGES:
                                                     :
                                                     :    Hon. William B. Hoffman, P.J.
       Plaintiff-Appellee                            :    Hon. Patricia A. Delaney, J.
                                                     :    Hon. Craig R. Baldwin, J.
-vs-                                                 :
                                                     :    Case No. 2014CA00033
                                                     :
ESTATE OF DALE BURLINGAME, ET                        :
AL.                                                  :
                                                     :
                                                     :
       Defendants-Appellants                         :    OPINION


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


JUDGMENT:                                                 AFFIRMED

DATE OF JUDGMENT ENTRY:                                   December 8, 2014

APPEARANCES:

For Plaintiff-Appellee:                                   For Defendants-Appellants:

ELIZABETH A. BURICK                                       KEVIN R. L'HOMMEDIEU
Elizabeth A. Burick Co. LPA                               KRISTEN BATES AYLWARD
1428 Market Ave. N.                                       Canton Law Department
Canton, OH 44714                                          218 Cleveland Ave. SW
                                                          Canton, OH 44701-4218
ORVILLE L. REED, III
Stark & Knoll                                             For Defendant-Appellee:
3475 Ridgewood Road
Akron, OH 44333-3163                                      THOMAS LOMBARDI
                                                          101 Central Plaza S., Suite 900
                                                          Canton, OH 44702
Stark County, Case No. 2014CA00033                                                          2

Delaney, J.

       {¶1} Defendants-Appellants City of Canton and its employee James R.

Coombs, II appeal the February 7, 2014 judgment entry of the Stark County Court of

Common Pleas.

                         FACTS AND PROCEDURAL HISTORY

       {¶2} The following facts were recited in Burlingame v. Estate of Burlingame, 5th

Dist. Stark Nos. 2010CA00124, 2010CA00130, 2011-Ohio-1325:

       {¶3} On July 4, 2007, Grace and Dale Burlingame were heading home after

enjoying a family picnic at their granddaughter's house. On their route home, the

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

N.W. in Canton.

       {¶4} The traffic signals in Canton, like many other large cities, have a device

known as a “preemption system,” that overrides the usual traffic light pattern. When

properly initiated, this system affords an emergency vehicle a favored status (green

light) at an intersection. It is the siren that initiates the preemption system, not a horn or

other device.

       {¶5} James R. Coombs, II was a firefighter with the Canton City Fire

Department. On July 4, 2007, he was driving a fire truck that was responding to an

emergency call. Coombs immediately activated the fire trucks lights and siren after

pulling out of the fire station. As Coombs drove south on Cleveland Avenue, the siren

stopped working just south of the 22nd Street intersection. When Coombs could not

successfully reactivate the siren, Captain Rick Sacco who was in the passenger seat of
Stark County, Case No. 2014CA00033                                                       3


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

motorists.

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

firefighters to stop at red lights even when responding to emergency calls. In addition,

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

emergency response into a non-emergency. In the case at bar, Coombs continued to

proceed in an emergency response mode in spite of the malfunctioning siren.

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

cross-traffic stopped on 18th Street. An ambulance traveling with its siren activated and

headed south on Cleveland Avenue passed through the intersection while the

Burlingames' vehicle was stopped at the red light. Brooke James the driver of the

vehicle that was behind the Burlingames' van saw the traffic light turn from red to green

after the ambulance passed.

       {¶8} As he approached the intersection, Coombs sounded the truck's air horn

and was traveling at a speed between 35 to 40 miles per hour. Coombs thought he saw

his traffic light turn green, however it did not. When Mr. Burlingame's light turned green,

Mr. Burlingame slowly pulled his vehicle into the intersection to make a left turn.

Coombs saw the van pull into the intersection and attempted to avoid hitting it by

swerving left of center. The Burlingames' vehicle was struck by Appellees' 20–ton fire-

truck traveling at 40 mph from a perpendicular direction. Mr. Burlingame was killed

instantly; Mrs. Burlingame sustained serious personal injuries and later died from those

injuries.
Stark County, Case No. 2014CA00033                                                    4


        {¶9} On February 19, 2009, Plaintiff-Appellee Grace Burlingame, filed suit

seeking to recover money damages for the personal injuries that she suffered in a

catastrophic collision that occurred on July 4, 2007 at the intersection of Cleveland

Avenue and 18th Street, N.W. in the City of Canton. Burlingame named as Defendants,

Joseph Burlingame, Executor of the Estate of Dale Burlingame, deceased, as well as

the City of Canton, the Canton City Fire Department, James R. Coombs, II and

Motorists Insurance Group. Burlingame filed a cross-claim against the Canton City Fire

Department, the City of Canton, James R. Coombs, II and the Canton City Fire

Department seeking damages for the wrongful death of Dale Burlingame as a result of

the accident of July 4, 2007. The City of Canton, James R. Coombs, II and the Canton

City Fire Department filed an Answer to that cross-claim and included, among its

affirmative defenses, that they were entitled to all the immunities, privileges and

defenses granted to them pursuant to Chapter 2744 of the Ohio Revised Code. The

City, Coombs and the Canton City Fire Department cross-claimed against the Estate of

Dale Burlingame and claimed that they were entitled to be indemnified for his alleged

negligence. The City also sought to recover damages for the loss that it suffered to its

fire truck.

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

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

Coombs' actions were negligent at best, and did not rise to the level of malicious

purpose, bad faith or in a wanton and reckless manner. The court concluded Coombs

and the City of Canton had statutory immunity from the Burlingames' suit.
Stark County, Case No. 2014CA00033                                                     5


        {¶11} Grace Burlingame appealed the trial court's decision to grant summary

judgment in favor of the City of Canton and Coombs. In Burlingame v. Estate of

Burlingame, 5th Dist. Stark Nos. 2010CA00124, 2010CA00130, 2011-Ohio-1325

("Burlingame I"), this court reversed the decision of the trial court to grant summary

judgment. We found that a firefighter's alleged violations of traffic statutes and

departmental policies were factors a jury could consider to determine whether the

officer's conduct was reckless for purposes of overcoming statutory immunity. We

further found there were genuine issues of material fact as to whether the firefighter

acted wantonly or recklessly to preclude summary judgment in favor of the City of

Canton and Coombs.

        {¶12} The City of Canton and Coombs appealed our decision in Burlingame I to

the Ohio Supreme Court. The Supreme Court accepted the discretionary appeal. See

Burlingame v. Estate of Burlingame, 129 Ohio St.3d 1449, 2011-Ohio-4217, 951 N.E.2d

1046.

        {¶13} On December 6, 2012, the Supreme Court sua sponte reversed our

decision in Burlingame I based on the authority of Anderson v. Massillon, 134 Ohio

St.3d 380, 2012-Ohio-5711, 983 N.E.2d 266. The Court remanded the case to the court

of appeals for further proceedings consistent with the Court's opinion in Anderson v.

Massillon. See Burlingame v. Estate of Burlingame, 134 Ohio St.3d 490, 2012-Ohio-

5698, 983 N.E.2d 1252.

        {¶14} Upon remand, this Court permitted the parties to brief the issue of whether

our decision in Burlingame I should be modified in light of the Supreme Court's decision
Stark County, Case No. 2014CA00033                                                          6

in Anderson v. Massillon. See Burlingame v. Estate of Burlingame, 5th Dist. Stark Nos.

2010CA00124, 2010CA00130, 2013-Ohio-3447, ¶ 1.

       {¶15} On August 5, 2013, we issued our decision in Burlingame v. Estate of

Burlingame, 5th Dist. Stark Nos. 2010CA00124, 2010CA00130, 2013-Ohio-3447

("Burlingame II"). We considered the appeal under the guidelines of Anderson v.

Massillon and held the trial court erred in granting summary judgment. We stated:

               The trial court must apply the definitions of willful, wanton, and

       reckless conduct as now defined by the Ohio Supreme Court in Anderson.

       Additionally, the trial court erred in the case at bar in finding violations of

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

       faith or wanton or reckless manner. The 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. Anderson, paragraph five of the

       syllabus.

Burlingame II, supra at ¶ 9. The matter was remanded to the trial court for further

proceedings consistent with our opinion and law. Id. at ¶ 10.

       {¶16} Upon remand, the trial court issued a judgment entry on February 7, 2014.

The trial court stated in its judgment entry, "[t]he Fifth District Court of Appeals has twice

ruled that factual issues exist and that summary judgment is not proper. This Court is

bound by the explicit and express language of the higher court rulings. It is abundantly

clear that the Fifth District has determined that this case is one where issues remain for
Stark County, Case No. 2014CA00033                                                     7


the finder of fact and that summary judgment does not apply as a matter of law. The

Motion for Summary Judgment is therefore denied." (Judgment Entry, Feb. 7, 2014).

       {¶17} It is from this decision the City of Canton and Coombs now appeal.

                              ASSIGNMENTS OF ERROR

       {¶18} The City of Canton raises two Assignments of Error:

       {¶19} "I. THE TRIAL COURT ERRED IN FINDING THAT FACTUAL ISSUES

EXIST, AND BY FAILING TO ANALYZE THE UNDISPUTED FACTS TO THE

SUPREME COURT'S HOLDING IN ANDERSON V. MASSILLON.

       {¶20} "II. THE APPELLANTS ARE ENTITLED TO SUMMARY JUDGMENT

BECAUSE MR. COOMBS DID NOT INTENTIONALLY VIOLATE ANY TRAFFIC

STATUTES OR DEPARTMENTAL RULES, AND THERE WAS NO OTHER EVIDENCE

THAT    HE   ACTED MALICIOUSLY, WITH BAD                  FAITH, OR      CONSCIOUSLY

DISREGARDED A KNOWN RISK."

                                       ANALYSIS

                                         I. and II.

                                  Standard of Review

       {¶21} The Assignments of Error concern the trial court's judgment entry denying

summary judgment. We refer to Civ.R. 56(C) in reviewing a motion for summary

judgment which provides, in pertinent part:

       Summary judgment shall be rendered forthwith if the pleading,

       depositions, answers to interrogatories, written admissions, affidavits,

       transcripts of evidence in the pending case and written stipulations of fact,

       if any, timely filed in the action, show that there is no genuine issue as to
Stark County, Case No. 2014CA00033                                                        8


       any material fact and that the moving party is entitled to judgment as a

       matter of law. * * * A summary judgment shall not be rendered unless it

       appears from such evidence or stipulation and only from the evidence or

       stipulation, that reasonable minds can come to but one conclusion and

       that conclusion is adverse to the party against whom the motion for

       summary judgment is made, such party being entitled to have the

       evidence or stipulation construed most strongly in the party's favor.

       {¶22} The moving party bears the initial responsibility of informing the trial court

of the basis for the motion, and identifying those portions of the record before the trial

court, which demonstrate the absence of a genuine issue of fact on a material element

of the nonmoving party's claim. Dresher v. Burt, 75 Ohio St.3d 280, 292, 662 N.E.2d

264 (1996). The nonmoving party then has a reciprocal burden of specificity and cannot

rest on the allegations or denials in the pleadings, but must set forth “specific facts” by

the means listed in Civ.R. 56(C) showing that a “triable issue of fact” exists. Mitseff v.

Wheeler, 38 Ohio St.3d 112, 115, 526 N.E.2d 798, 801 (1988).

       {¶23} Pursuant to the above rule, a trial court may not enter summary judgment

if it appears a material fact is genuinely disputed. Vahila v. Hall, 77 Ohio St.3d 421, 429,

674 N.E.2d 1164 (1997), citing Dresher v. Burt, 75 Ohio St.3d 280, 662 N.E.2d 264

(1996).

       {¶24} When reviewing a trial court's decision to grant summary judgment, an

appellate court applies the same standard used by the trial court. Smiddy v. The

Wedding Party, Inc., 30 Ohio St.3d 35, 506 N.E.2d 212 (1987). The appellate court
Stark County, Case No. 2014CA00033                                                      9

reviews the motion for summary judgment de novo. Doe v. Shaffer, 90 Ohio St.3d 388,

2000–Ohio–186, 738 N.E.2d 1243.

                           Genuine Issues of Material Fact

       {¶25} Through the numerous proceedings at all court levels, the evidence in this

case presented pursuant to Civ.R. 56 has not changed. This court has had the

opportunity to conduct a summary judgment analysis of the Civ.R. 56 evidence in

Burlingame I, Burlingame II, and the current appeal. In Burlingame II, we conducted our

analysis of the Civ.R. 56 evidence with the benefit of the guidance of Anderson v.

Massillon.

       {¶26} In the present case, we again conduct a de novo review and consider the

evidence in a light most favorable to the nonmoving party. We find there are genuine

issues of material fact that overcome a finding of judgment as a matter of law in favor of

the City of Canton and Coombs. Reasonable minds could come to differing conclusions

as to whether the City of Canton and Coombs are liable for the injuries to the

Burlingames or whether statutory immunity applies.

       {¶27} Accordingly, the two Assignments of Error of the City of Canton and

Coombs are overruled.
Stark County, Case No. 2014CA00033                                                 10


                                   CONCLUSION

       {¶28} The judgment of the Stark County Court of Common Pleas is affirmed.

By: Delaney, J.,

Hoffman, P.J. and.

Baldwin, J., concur.
