[Cite as Kearns v. Meigs Cty. Emergency Med. Servs., 2017-Ohio-1354.]


                              IN THE COURT OF APPEALS OF OHIO
                                 FOURTH APPELLATE DISTRICT
                                       GALLIA COUNTY

CHARLES P. KEARNS, SR.,                                   :
                                                          :             Case No. 16CA8
        Plaintiff-Appellee,                               :
                                                          :
        v.                                                :
                                                          :
MEIGS COUNTY EMERGENCY                                    :
MEDICAL SERVICES, et al.,                                 :
                                                          :
        Defendants-Appellants.                            :




ELEANOR F. KEARNS,                                        :
                                                          :             Case No. 16CA9
        Plaintiff-Appellee,                               :
                                                          :
        v.                                                :
                                                          :
MEIGS COUNTY EMERGENCY                                    :
MEDICAL SERVICES (EMS), et al.,                           :
                                                          :
        Defendants-Appellants.                            :



                               DECISION AND JUDGMENT ENTRY

                                        RELEASED 04/05/2017


                                           APPEARANCES:

Mark Landes and Aaron M. Glasgow, Isaac Wiles Burkholder & Teetor, LLC, Columbus, Ohio,
for defendants-appellants.

Jeffrey L. Finley, Gallipolis, Ohio, for plaintiffs-appellees.



Hoover, J.
Gallia App. Nos. 16CA8, 16CA9                                                                                     2


        {¶ 1} Defendants-appellants, Meigs County Commissioners, Meigs County Emergency

Medical Services (“Meigs County EMS”), and Alfred W. Lyons, appeal from a judgment of the

Gallia County Common Pleas Court that denied their motion for summary judgment in the

personal injury actions filed by plaintiffs-appellees, Charles and Eleanor Kearns. The

complaints1 stemmed from an incident where an ambulance operated by Meigs County

EMS/Meigs County Commissioners and driven by Lyons struck the vehicle occupied by Charles

and Eleanor Kearns on a roadway in Gallia County, Ohio. The appellants moved for summary

judgment claiming a defense or immunity under R.C. Chapter 2744. The trial court denied the

motion on the ground that a genuine issue of material fact exists regarding whether appellant

Lyons’s actions constitute wanton misconduct. After a careful review of the record and

applicable law, we conclude that the trial court properly denied the appellants’ motion for

summary judgment; and therefore, we affirm.


                                     I. Facts and Procedural Posture


        {¶ 2} This case arises out of an automobile collision involving a vehicle driven by

Charles Kearns and occupied by Eleanor Kearns and an ambulance operated by Meigs County

EMS/Meigs County Commissioners and driven by Lyons. On the evening of March 23, 2013,

Meigs County EMS received a 911 call from the Holzer Clinic urgent care facility in Pomeroy,

Ohio. Holzer Clinic requested that an ambulance be sent to its facility to treat a patient

experiencing a medical emergency, and to transport the patient to the Holzer Medical Center in




1
 Charles and Eleanor Kearns filed separate complaints against the appellants, but because the actions arose from the
same incident and alleged the same claims, they were consolidated below for the purposes of filing dispositive
motions with respect to liability issues. The cases have also been consolidated in this Court by magistrate’s order
dated July 12, 2016.
Gallia App. Nos. 16CA8, 16CA9                                                                                   3


Gallipolis, Ohio. A Meigs County EMS ambulance, driven by employee Lyons2, responded to

Holzer Clinic. Accompanying Lyons to Holzer Clinic was his partner Teresa Johnson. In the trip

from the station house in Racine, Ohio, to the Holzer Clinic in Pomeroy, Lyons drove the

ambulance with lights and sirens activated.


        {¶ 3} Upon arriving at Holzer Clinic, Lyons and Johnson spoke with the staff about the

patient’s condition, and within five minutes the patient was loaded into the ambulance. Lyons

and Johnson determined that the patient was not in such critical condition that it was necessary to

proceed to the Holzer Medical Center with lights and sirens activated. Lyons then drove the

ambulance towards Holzer Medical Center to take the patient to the emergency room for medical

care.


        {¶ 4} The collision occurred while en route to Holzer Medical Center on State Route 7 in

the Village of Cheshire, Ohio.3 The ambulance was proceeding southbound on State Route 7

prior to the collision. While travelling in the southbound direction, the ambulance drove left of

center and struck the vehicle that the Kearns were riding in the northbound lane. At his

deposition, Lyons testified that just before the collision, the two vehicles in front of him were

playing a “brake check” game, erratically slowing down and speeding up. However, Lyons did

not report any such “brake check” game to the highway patrol when asked how the collision

occurred. Lyons could not recall the moments before the collision, saying he “lost everything”,

but recalled that when he “got [his] senses back”, the Kearns’ vehicle “was there” and he was

completely in the northbound lane of travel. He tried to avoid the collision but was unable to do

so. Lyons explicitly denied that he was attempting to pass the vehicle in front of him at the time


2
  Lyons indicated that he was an EMT-I (intermediate) and was employed by Meigs County EMS at the time of the
incident.
3
  It is undisputed that the collision occurred in Gallia County, Ohio.
Gallia App. Nos. 16CA8, 16CA9                                                                         4


of the collision. Charles and Eleanor Kearns were both injured in the collision and taken to

Holzer Medical Center for treatment.


        {¶ 5} Charles Kearns recalls a different version of events. Charles Kearns testified that he

observed a vehicle in front of the ambulance traveling south on State Route 7. According to

Charles Kearns, Lyons accelerated and drove the ambulance completely into the northbound lane

and passed the vehicle in front of him. After passing the vehicle in front of him, Lyons collided

with the Kearns’ vehicle head-on. Charles Kearns indicated that he had no time to avoid the

collision.


        {¶ 6} Michelle Folmer was driving a 2003 Honda Odyssey minivan and was following

behind the Kearns’ vehicle at the time of the collision. In fact, the force of the collision caused

the Kearns’ vehicle to spin around and be pushed backward into the vehicle driven by Folmer.

Folmer averred in an affidavit filed during the summary judgment proceedings that at the

intersection of West Poplar Street, Second Street, and State Route 7, she witnessed the

ambulance driven by Lyons cross the left centerline into the northbound lane in an apparent

attempt to pass the vehicle in front of him. She further averred that the ambulance was in the

northbound lane of State Route 7 when it collided head-on with the Kearns’ vehicle. She also

confirmed that the ambulance did not have its emergency lights and sirens on at the time of the

collision.


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

traffic for each direction. The posted speed limit where the collision occurred is 35 miles per

hour. Solid double yellow lines indicating a no passing zone separated the northbound and

southbound lanes where the collision occurred.
Gallia App. Nos. 16CA8, 16CA9                                                                       5


        {¶ 8} The collision occurred at approximately 7:30 p.m., and according to Charles

Kearns it was not yet dark outside. Charles and Eleanor Kearns were riding in a blue 2000

Mercury Grand Marquis. Charles was driving the vehicle and Eleanor was seated in the front

passenger seat.


        {¶ 9} Lyons indicated that he had not received formal training on: (1) the use of the lights

and siren, (2) driving and operating the ambulance, and (3) when it would be appropriate to

exceed the speed limit. However, he indicated that he did participate in ride-along training with

more experienced employees; and had been a full-time employee with Meigs County EMS since

1995.


        {¶ 10} The summary judgment evidence also included an affidavit and report from the

Kearns’ accident reconstruction expert. According to the accident reconstructionist, Lyons was

traveling at a minimum speed of between 55-58 miles per hour at the time of the collision with

the Kearns’ vehicle, and was approaching an intersection in a posted 35 miles per hour speed

zone. The reconstructionist also opined that Lyons’s movement of the ambulance from the south

lane of State Route 7 to the north lane was not a gradual movement, but rather an abrupt lane

change; and was done either in an attempt to pass the vehicle in front of it, or as a swerving

maneuver to the left to avoid a rear end collision with the vehicle in front of it.


        {¶ 11} As previously mentioned, Charles and Eleanor Kearns filed separate civil suits

against the appellants for personal injuries resulting from the collision. The complaints alleged

that (1) Lyons was negligent in the operation of the ambulance; and (2) Lyons’s actions, conduct,

and omissions constituted willful and wanton misconduct. Finally, Charles and Eleanor Kearns

alleged that Meigs County EMS and the Meigs County Commissioners were vicariously liable
Gallia App. Nos. 16CA8, 16CA9                                                                                            6


for Lyons’s actions and conduct. The parties each filed motions for summary judgment; as well

as responses and replies. An oral hearing on the summary judgment motions was held on May

12, 2016.


         {¶ 12} On June 6, 2016, the trial court issued its judgment on the pending summary

judgment motions. The trial court denied the Kearns’ motion in its entirety. As to the appellants’

motion, the trial court granted summary judgment as to the issue of Lyons’s conduct being

willful and as to the issue of whether Lyons was on an emergency call at the time of the

collision. However, the trial court found there to be a genuine issue of material fact as to whether

Lyons’s conduct was “wanton”. Finally, though the parties had addressed the issue of

recklessness with respect to Lyons’s conduct in their competing summary judgment motions, the

trial court refused to address the issue on the basis that it was not adequately pleaded in the

Kearns’ complaints.


         {¶ 13} On June 7, 2016, both Eleanor and Charles Kearns moved to amend their

complaints to plead reckless misconduct on the part of Lyons. The trial court granted the motions

to amend on June 28, 2016. On June 30, 2016, both Eleanor and Charles Kearns filed amended

complaints asserting reckless misconduct on the part of Lyons. On July 1, 2016, the appellants

filed their notice of appeal of the June 6, 2016 judgment regarding the summary judgment

motions.4 Charles or Eleanor Kearns did not file a cross-appeal as to any portion of the trial

court’s judgment.



4
 Ordinarily, a decision denying a party’s motion for summary judgment is not a final, appealable order. However,
under R.C. 2744.02(C), “[a]n order that denies a political subdivision or an employee of a political subdivision the
benefit of an alleged immunity from liability as provided in this chapter or any other provision of the law is a final
order.”
Gallia App. Nos. 16CA8, 16CA9                                                                                        7


                                            II. Assignment of Error


         {¶ 14} On appeal, the appellants raise the following assignment of error for our review.


Assignment of Error:

         The Trial Court erred in finding that a genuine issues (sic) of material fact
         regarding whether Appellant Alfred W. Lyons acted “wantonly” under R.C. §
         2744.02(B)(1)(a)5.


                                             III. Law and Analysis


         {¶ 15} Appellants contend that the trial court erred by denying their motion for summary

judgment for the claims associated with the collision because they are entitled to the defenses

and immunities under R.C. Chapter 2744. Specifically, the appellants argue that under the

provided record, there is not enough evidence for a reasonable jury to find that Lyons acted

wantonly or recklessly.


                                            A. Standard of Review


         {¶ 16} We review the trial court’s decision on a motion for summary judgment de novo.

Smith v. McBride, 130 Ohio St.3d 51, 2011-Ohio-4674, 955 N.E.2d 954, ¶ 12. Accordingly, we

afford no deference to the trial court’s decision and independently review the record and the

inferences that can be drawn from it to determine whether summary judgment is appropriate.

Harter v. Chillicothe Long-Term Care, Inc., 4th Dist. Ross No. 11CA3277, 2012-Ohio-2464, ¶

12; Grimes v. Grimes, 4th Dist. Washington No. 08CA35, 2009-Ohio-3126, ¶ 16.




5
 While appellants’ assignment of error identifies R.C. 2744.02(B)(1)(a) as the prevailing statute, as discussed in this
decision and judgment entry, the actual pertinent sections appear to be R.C. 2744.02(B)(1)(c) and R.C.
2744.03(A)(6)(b).
Gallia App. Nos. 16CA8, 16CA9                                                                           8


       {¶ 17} Summary judgment is appropriate only when the following have been established:

(1) that there is no genuine issue as to any material fact; (2) that the moving party is entitled to

judgment as a matter of law; and (3) that reasonable minds can come to only one conclusion, and

that conclusion is adverse to the nonmoving party. Civ.R. 56(C); DIRECTV, Inc. v. Levin, 128

Ohio St.3d 68, 2010-Ohio-6279, 941 N.E.2d 1187, ¶ 15. In ruling on a motion for summary

judgment, the court must construe the record and all inferences therefrom in the nonmoving

party’s favor. Civ.R. 56(C). The party moving for summary judgment bears the initial burden to

demonstrate that no genuine issues of material fact exist and that they are entitled to judgment in

their favor as a matter of law. Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264

(1996). To meet its burden, the moving party must specifically refer to “the pleadings,

depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence,

and written stipulations of fact, if any, timely filed in the action,” that affirmatively demonstrate

that the nonmoving party has no evidence to support the nonmoving party’s claims. Civ.R.

56(C); Dresher at 293. Moreover, the trial court may consider evidence not expressly mentioned

in Civ.R. 56(C) if such evidence is incorporated by reference in a properly framed affidavit

pursuant to Civ.R. 56(E). Discover Bank v. Combs, 4th Dist. Pickaway No. 11CA25, 2012-Ohio-

3150, ¶ 17; Wagner v. Young, 4th Dist. Athens No. CA1435, 1990 WL 119247, *4 (Aug. 8,

1990). Once that burden is met, the nonmoving party then has a reciprocal burden to set forth

specific facts to show that there is a genuine issue for trial. Dresher at 293; Civ.R. 56(E).


                   B. Meigs County EMS and Meigs County Commissioners


       {¶ 18} R.C. 2744.02(A)(1) sets forth the general rule that a political subdivision is

immune from tort liability for acts or omissions connected with governmental or proprietary

functions. See, e.g., Cramer v. Auglaize Acres, 113 Ohio St.3d 266, 2007–Ohio–1946, 865
Gallia App. Nos. 16CA8, 16CA9                                                                                            9


N.E.2d 9, ¶ 14; Colbert v. Cleveland, 99 Ohio St.3d 215, 2003–Ohio–3319, 790 N.E.2d 781, ¶ 7.

The statute states: “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.” However, R.C.

2744.02(B)(1) sets forth an exception to the general rule of immunity, providing that “political

subdivisions are labile for injury, death, or loss to persons 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.” Finally, R.C. 2744.02(B)(1)(c) provides a political

subdivision with a full defense to the liability imposed under R.C. 2744.02(B)(1) if the liability

arose in connection with the negligent operation of a motor vehicle by “[a] member of an

emergency medical service owned or operated by a political subdivision * * * 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 the Revised Code, the operation of the vehicle did not constitute

willful or wanton misconduct, and the operation complie[d] with the precautions of section

4511.036 of the Revised Code.”

         {¶ 19} In the case sub judice, the parties do not dispute that at the time of the collision

Lyons was an employee of the Meigs County EMS/Meigs County Commissioners and was

operating the ambulance within the scope of his employment. Further, it is undisputed that Lyons

was responding to or completing an emergency call at the time of the collision, was a validly

6
  R.C. 4511.03 imposes a duty upon “[t]he driver of any emergency vehicle or public safety vehicle, when
responding to an emergency call, upon approaching a red or stop signal or any stop sign [, to] slow down as
necessary for safety to traffic [and to] * * * proceed cautiously past such red or stop sign or signal with due regard
for the safety of all persons using the street or highway.”
Gallia App. Nos. 16CA8, 16CA9                                                                        10


licensed driver, that his operation of the vehicle did not constitute willful misconduct, and that

his operation complied with R.C. 4511.03. Therefore, regarding the liability of Meigs County

EMS/Meigs County Commissioners, the only issue is whether there is a genuine issue of

material fact as to whether Lyons’s operation of the ambulance constituted wanton misconduct.


       {¶ 20} “Wanton misconduct” has been defined as “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.” Anderson v. Massillon, 134 Ohio St.3d 380, 2012-Ohio-5711, 983 N.E.2d 266,

paragraph three of the syllabus.

       {¶ 21} After reviewing the record in the light most favorable to Charles and Eleanor

Kearns, we conclude that a genuine issue of material fact remains as to whether Lyons’s

operation of the ambulance constituted wanton misconduct. Here, the accident reconstruction

expert indicated that Lyons was exceeding the posted speed limit by at least 20 miles per hour at

the time of the collision. This fact is especially concerning because the collision occurred within

the limits of the Village of Cheshire, and while approaching an intersection. Lyons was also

operating the ambulance without lights and sirens activated, thus providing no warning to fellow

travelers. While Lyons denied that he was in the process of passing the vehicle in front of him,

both Charles Kearns and Michelle Folmer asserted that he had passed or was in the process of

passing the vehicle in front of him in a clearly established no passing zone. Lyons himself

indicated that the collision occurred in a no passing zone. Furthermore, Lyons’s own deposition

testimony provides little detail of how he ended up in the opposite lane of travel. Under these

facts, reasonable minds could conclude that Lyons’s operation of the ambulance constituted

wanton misconduct. As such, a genuine issue of material fact exists that precludes Meigs County

EMS/Meigs County Commissioners from the benefit of the R.C. 2744.02(B)(1)(c) defense.
Gallia App. Nos. 16CA8, 16CA9                                                                        11


                                              C. Lyons


       {¶ 22} The appellants also contend that Lyons is entitled to individual immunity under

R.C. Chapter 2744. R.C. 2744.03(A) prescribes defenses or immunities that an employee of a

political subdivision may assert to establish nonliability in a civil action for damages allegedly

caused by an act or omission in connection with a governmental or proprietary function.

Argabrite v. Neer, --Ohio St.3d--, 2016-Ohio-8374, --N.E.3d--, ¶ 7. Pertinent here, an employee

of a political subdivision is immune from liability unless the employee’s acts or omissions were

“with malicious purpose, in bad faith, or in a wanton or reckless manner[.]” R.C.

2744.03(A)(6)(b).


       {¶ 23} In the case sub judice, we have already determined that a genuine issue of material

fact exists as to whether Lyons’s operation of the ambulance constituted wanton misconduct.

Thus, at this time Lyons is not entitled to immunity or summary judgment. The appellants also

contend in their appellate brief that Lyons’s operation of the ambulance did not constitute

reckless misconduct. However, because this issue has yet to be decided by the trial court, we will

not address it for the first time on appeal. Sickles v. Jackson Cty. Hwy. Dept., 196 Ohio App.3d

703, 2011-Ohio-6102, 965 N.E.2d 330, ¶ 31 (4th Dist.), citing Stratford v. Chase Apts. v.

Columbus, 137 Ohio App.3d 29, 33, 738 N.E.2d 20 (10th Dist.2000) (explaining that the

appellate court’s independent review of a summary judgment decision should not replace the

trial court’s function of initially determining the proprietary of summary judgment).

                                          IV. Conclusion


       {¶ 24} Having reviewed the arguments, the briefs, and the record in this consolidated

appeal, we find that the trial court did not err in concluding that a genuine issue of material fact
Gallia App. Nos. 16CA8, 16CA9                                                                       12


remains as to whether Lyons’s actions constitute wanton misconduct. Accordingly, the trial court

properly denied the appellants’ motion for summary judgment and the appellants’ sole

assignment of error is overruled. The judgment of the trial court is affirmed.


                                                                         JUDGMENT AFFIRMED.


Harsha, J., dissenting.

       {¶ 25} I respectfully dissent from the judgment affirming the denial of appellants’ motion

for summary judgment based on political-subdivision immunity and referring the immunity issue

to be the jury. I reiterate my position that nowithstanding conflicting signals given by the

Supreme Court of Ohio, the issue of immunity presents a question of law properly decided prior

to trial on summary judgment, not of a question of fact to be decided by a jury. See Laries v.

Athens, 2015-Ohio-2750, 39 N.E.3d 788, ¶ 40-46 (Harsha, J., concurring).

       {¶ 26} In Conley v. Shearer, 64 Ohio St.3d 284, 595 N.E.2d 862, the Supreme Court of

Ohio rejected a claim that the procedure for filing claims against the state, its officers, and

employees violated a plaintiff's right to a trial by jury. The court held that “[t]he question of

whether [the defendant] is entitled to immunity as a governmental employee is a question of law

for which there is no right to trial.” Id at 292, 595 N.E.2d 862. In rejecting the claimed right to a

jury trial the court decided that immunity presented purely legal questions. The court did so in

pronouncing that “ ‘[w]hether immunity may be invoked is a purely legal issue, properly

determined by the court prior to trial * * *, and preferably on a motion for summary judgment.’ ”

Id., quoting Roe v. Hamilton Cty. Dept. of Human Serv., 53 Ohio App.3d 120, 126, 560 N.E.2d

238 (1st Dist.1988).

       {¶ 27} Consistent with the Supreme Court’s holding in Conley, 64 Ohio St.3d at 292, 595

N.E.2d 862, we have held that “[i]mmunity issues ordinarily present questions of law that an
Gallia App. Nos. 16CA8, 16CA9                                                                     13


appellate court reviews independently and without deference to the trial court.” See Pauley v.

Circleville, 2012-Ohio-2378, 971 N.E.2d 410, ¶ 16 (4th Dist.). Questions of law are for the court

to decide even if resolving the question requires the court to consider the facts or evidence. See,

e.g., Martin v. Lambert, 2014-Ohio-715, 8 N.E.3d 1024, ¶ 17 (4th Dist.), quoting Ruta v.

Breckinridge-Remy Co., 69 Ohio St.2d 66, 68, 430 N.E.2d 935 (1982) (“Simply because

resolution of a question of law involves consideration of the evidence does not mean that the

question of law is converted into a question of fact or that a factual issue is raised”).

       {¶ 28} Following Conley the Supreme Court stated in dicta that the issue of whether a

political subdivision or its employee was entitled to immunity could potentially raise a genuine

issue of material fact precluding summary judgment. See Hubbell v. Xenia, 115 Ohio St.3d 77,

2007-Ohio-4839, 873 N.E.2d 878, ¶ 21; In re Ohio Political Subdivision Immunity Cases, 115

Ohio St.3d 448, 2007-Ohio-5252, 875 N.E.2d 912, ¶ 2. The Supreme Court did not overrule

Conley. In addition, the holdings in these cases were restricted to whether the orders appealed

constituted final appealable orders. “If the Supreme Court had intended to overrule Conley, and

to avoid any confusion on the part of trial and appellate courts, the dicta in Hubbell was not the

way to do it. In the absence of more explicit guidance on this matter, I continue to believe

Conley is applicable to questions of political-subdivision immunity in a motion for summary

judgment. This is so because, like duty, immunity presents a question about the rules of

procedure and public policy. Courts decide the rules under which cases are decided, not juries,

regardless of whether such a decision requires consideration of the facts.” Laries at ¶ 46

(Harsha, J., concurring).

       {¶ 29} Rather than deciding the issue of immunity as a matter of law, the trial court

instead decided it raised an issue of fact that should be decided by the jury. Based on Conley, the
Gallia App. Nos. 16CA8, 16CA9                                                                       14


trial court erred in so holding and should have proceeded to decide this legal issue. Thus, I

would reverse and remand with instructions for the trial court to decide the merits of the issue.
Gallia App. Nos. 16CA8, 16CA9                                                                   15


                                     JUDGMENT ENTRY


       It is ordered that the JUDGMENT IS AFFIRMED. Appellants shall pay the costs.
       The Court finds that reasonable grounds existed for this appeal.
     It is ordered that a special mandate issue out of this Court directing the Gallia County
Common Pleas Court to carry this judgment into execution.

  A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of
Appellate Procedure.

Abele, J: Concurs in Judgment and Opinion.
Harsha, J.: Dissents with Dissenting Opinion.


                                                            For the Court

                                                            By:
                                                                    Marie Hoover, Judge


                                   NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and
the time period for further appeal commences from the date of filing with the clerk.
