[Cite as Burlingame v. Estate of Burlingame, 2013-Ohio-3447.]


                                         COURT OF APPEALS
                                        STARK COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT

                                                             JUDGES:
GRACE BURLINGAME                                    :        Hon. W. Scott Gwin, P.J.
                                                    :        Hon. William B. Hoffman, J.
                      Plaintiff-Appellant           :        Hon. John W. Wise, J.
                                                    :
-vs-                                                :
                                                    :        Case No.           2010-CA-00124
ESTATE OF DALE BURLINGAME,                          :                           2010-CA-00130
ET AL                                               :
                                                    :        OPINION
                   Defendants-Appellants

And


JAMES R. COOMBS, II., ET AL

                      Defendants-Appellees



CHARACTER OF PROCEEDING:                                Civil appeal on remand from the Ohio
                                                        Surpeme Court, Stark County Court of
                                                        Common Pleas, Case No. 2009CV00689

JUDGMENT:                                               Reversed and Remanded

DATE OF JUDGMENT ENTRY:                                 August 5, 2013
APPEARANCES:

For Plaintiff-Appellant, James Burlingame,              For Defendant-Appellee Canton City Fire
Administrator of Estate of Grace                        Department, Canton City Hall and James R. Combs
Burlingame, Deceased

ELIZABETH A. BURICK                                     KRISTEN BATES AYLWARD
1428 Market Avenue North                                KEVIN L'HOMMEDIEU
Canton, OH 44714                                        Canton Law Department
                                                        City Hall
                                                        Canton, OH

For Appellant Eva Finley, Administrator                 For Appellant Eva Finley, Administrator
THOMAS LOMBARDI                                         ORVILLE L. REED, III
101 Central Plaza S., Ste 900                           Buckingham, Doolittle & Burroughs, LLP
Chase Tower                                             3800 Embassy Parkway, Suite 300
Canton, OH 44702                                        Akron, OH 44333
[Cite as Burlingame v. Estate of Burlingame, 2013-Ohio-3447.]


Gwin, P.J.

        {¶1} Upon remand from the Supreme Court of Ohio, this Court is asked to

consider whether this Court's ruling in Burlingame v. Estate of Burlingame, 5th Dist. No.

2010–CA–00124, 2011-Ohio-1325, [“Burlingame I”] should be modified in light of the

Supreme Court’s decision in Anderson v. Massillon, 134 Ohio St.3d 380, 2012-Ohio-

5711, 983 N.E.2d 266.

        {¶2} We have permitted the parties to brief the issue as framed by the Ohio

Supreme Court.

                                        Facts and Procedural History

        {¶3} Plaintiff-appellant Joseph Burlingame, as the representative of the Estate of

Grace     Burlingame,       deceased,       and    defendant-appellant,   Eva    Finley,   as   the

representative of the Estate of Dale Burlingame, deceased, appeal a summary

judgment of the Court of Common Pleas of Stark County, Ohio, which found

defendants-appellees the City of Canton and its employee James R. Coombs II are

entitled to immunity from liability arising out of an accident between the decedent's

vehicle and a Canton City fire truck.

                                              Assignment of Error

        {¶4} Appellant assigns a single error to the trial court:

        {¶5} “I.     THE        TRIAL       COURT          ERRED    WHEN         IT    GRANTED

DEFENDANTS/APPELLEES’                   MOTION          FOR     SUMMARY         JUDGMENT        AS

REASONABLE MINDS COULD CONCLUDE THAT DEFENDANTS/APPELLEES

OPERATED THE VEHICLE IN A WANTON, WILLFUL AND/OR RECKLESS

MANNER.”
Stark County, Case No. 2010-CA-00124 & 2010-CA-00130                                    3


                                                 I.

       {¶6} In Burlingame I, 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, and that genuine issues of material fact as to whether firefighter acted

wantonly or recklessly precluded summary judgment for defendants, based on immunity

from suit.

       {¶7} The Ohio Supreme Court clarified the definitions of these terms in

Anderson, holding that “[w]ilfull, wanton, and reckless describe different degrees of care

and are not interchangeable.” Anderson, paragraph one of the syllabus. The Court

further held,

                Willful misconduct implies 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 purposefully doing wrongful acts with

       knowledge or appreciation of the likelihood of resulting injury. (Tighe v.

       Diamond, 149 Ohio St. 520, 80 N.E.2d 122 (1948), approved and

       followed.)

                Wanton misconduct is the failure to exercise any care toward those

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

       probability that harm will result. (Hawkins v. Ivy, 50 Ohio St.2d 114, 363

       N.E.2d 367 (1977), approved and followed.)

                Reckless conduct is characterized by the conscious disregard of or

       indifference to a known or obvious risk of harm to another that is
Stark County, Case No. 2010-CA-00124 & 2010-CA-00130                                       4


       unreasonable under the circumstances and is substantially greater than

       negligent conduct. (2 Restatement of the Law 2d, Torts, Section 500

       (1965), adopted.)

Anderson at paragraphs two, three and four of the syllabus.

       {¶8} Additionally, 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. at paragraph five of the syllabus. 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.” (Citations

omitted). Anderson, at ¶38.

       {¶9} We find the trial court erred in granting summary judgment. 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.
Stark County, Case No. 2010-CA-00124 & 2010-CA-00130                              5


      {¶10} For the foregoing reasons the judgment of the Court of Common Pleas,

Stark County, Ohio is reversed, and the cause is remanded for further proceedings in

accordance with the law and consistent with this opinion.

By Gwin, P.J.,

Hoffman, J., and

Wise, J., concur


                                             _________________________________
                                             HON. W. SCOTT GWIN


                                             _________________________________
                                             HON. WILLIAM B. HOFFMAN


                                             _________________________________
                                             HON. JOHN W. WISE
WSG:clw 0722
[Cite as Burlingame v. Estate of Burlingame, 2013-Ohio-3447.]


                IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT


GRACE BURLINGAME                                      :
                                                      :
                           Plaintiff-Appellant        :
                                                      :
                                                      :
-vs-                                                  :         JUDGMENT ENTRY
                                                      :
ESTATE OF DALE BURLINGAME,                            :
ET AL                                                 :
                                                      :
                                                      :
                    Defendants-Appellants             :         CASE NO.    2010-CA-00124
And


JAMES R. COOMBS, II., ET AL

                     Defendants-Appellees



       For the reasons stated in our accompanying Memorandum-Opinion, the judgment of

the Court of Common Pleas of Stark County, Ohio, is reversed, and the cause is

remanded to the court for further proceedings in accordance with law and consistent

with this opinion. Costs to appellees.




                                                          _________________________________
                                                          HON. W. SCOTT GWIN

                                                          _________________________________
                                                          HON. WILLIAM B. HOFFMAN

                                                          _________________________________
                                                          HON. JOHN W. WISE
[Cite as Burlingame v. Estate of Burlingame, 2013-Ohio-3447.]


                IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT


GRACE BURLINGAME                                       :
                                                       :
                     Plaintiff-Appellant               :
                                                       :
                                                       :
-vs-                                                   :           JUDGMENT ENTRY
                                                       :
ESTATE OF DALE BURLINGAME,                             :
ET AL                                                  :
                                                       :
                                                       :
                    Defendants-Appellants              :        CASE NO. 2010-CA-00130

And


JAMES R. COOMBS, II., ET AL

                    Defendants-Appellees



       For the reasons stated in our accompanying Memorandum-Opinion, the judgment of

the Court of Common Pleas of Stark County, Ohio, is reversed, and the cause is

remanded to the court for further proceedings in accord with law and consistent with this

opinion. Costs to appellees.




                                                       _________________________________
                                                       HON. W. SCOTT GWIN

                                                       _________________________________
                                                       HON. WILLIAM B. HOFFMAN

                                                       _________________________________
                                                       HON. JOHN W. WISE
