[Cite as Ogburn v. Toledo, 2019-Ohio-163.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                     LUCAS COUNTY


Linda H. Ogburn, etc.                                  Court of Appeals No. L-18-1045

        Appellant                                      Trial Court No. CI0201602165

v.

City of Toledo                                         DECISION AND JUDGMENT

        Appellee                                       Decided: January 18, 2019

                                                *****

        Robert M. Scott, for appellant.

        Dale R. Emch, Director of Law, Jeffrey B. Charles, Chief of
        Litigation, and Merritt W. Green III, Senior Attorney, for appellee.

                                                *****

        JENSEN, J.
                                             I. Introduction

        {¶ 1} This is an appeal from the judgment of the Lucas County Court of Common

Pleas, granting summary judgment in favor of appellee, the city of Toledo, and

dismissing the wrongful death action brought by appellant, Linda Ogburn.
                         A. Facts and Procedural Background

       {¶ 2} On April 1, 2016, appellant, acting as personal representative and

administratrix of the estate of Lonnie Holmes, filed a wrongful death complaint with the

trial court, in which she alleged that Holmes was injured, and ultimately died three days

later, when he was struck by a fire hose that had broken free from one of the Toledo Fire

and Rescue Department’s (TFRD) fire engines, Engine No. 9, as it was responding to an

emergency call on October 18, 2014. Appellant asserted that the city’s agents (the TFRD

and its firefighters) intentionally removed a safety device from the truck that was

designed to secure the hose while the truck was in operation. Appellant further alleged

that the intentional removal of the safety device constituted willful and/or wanton

misconduct, thereby eliminating the city’s immunity under Chapter 2744 of the Ohio

Revised Code.

       {¶ 3} On June 20, 2016, the city responded to appellant’s complaint by the filing

of an answer, in which it denied liability and asserted several affirmative defenses,

including immunity under Chapter 2744 of the Ohio Revised Code. Thereafter, appellant

engaged in discovery, ultimately deposing the four firefighters that operated Engine No. 9

on October 18, 2014, as well as the TFRD’s fire maintenance officer. Additionally,

appellant retained the services of Leo Debobes, an expert witness in the field of fire

department practices and safety.

       {¶ 4} Seven months after the city submitted its answer, it filed a motion for

summary judgment. In its motion, the city argued that it was entitled to immunity under




2.
R.C. 2744.02(B) because Engine No. 9 was on an emergency call at the time of the injury

and there was no evidence of willful or wanton misconduct on the part of the city. While

the city acknowledged that its agents had removed the safety net that was installed on

Engine No. 9 by the manufacturer, it argued that it did not act without care with respect

to the fire hoses because it installed holsters on its fire engines that housed the fire hose

nozzles. The city urged that the holsters were reasonable replacements for the safety

nets, as they were also designed to secure the fire hoses and were necessary in order to

aid firefighters in quickly and efficiently putting out fires. Further, the city rejected any

contention that it acted with knowledge or appreciation of the likelihood of injury where

there had been no incidents concerning the inadvertent release of hoses on its fire engines

since it replaced the safety nets with holsters several years prior.

         {¶ 5} On May 31, 2017, appellant filed her memorandum in opposition to the

city’s motion for summary judgment. In her memorandum, appellant contended that the

city willfully and wantonly violated the applicable standard in this case, which appellant

claimed was set by the National Fire Protection Association in NFPA 1901 15.10.7 and

A.15.10.7, by intentionally removing the safety nets from Engine No. 9.1 As to the city’s



1
    NFPA 1901 15.10.7 and A.15.10.7 provides:

                 15.10.7 Any hose storage area shall be equipped with a positive
         means to prevent unintentional deployment of the hose from the top, sides,
         front, and rear of the hose storage area while the apparatus is underway in
         normal operations.




3.
claimed lack of knowledge of any danger arising from the removal of the safety nets,

appellant argued that such danger was widely known in the industry and formed the basis

for the NFPA’s promulgation of NFPA 1901 15.10.7 and A.15.10.7. Further, appellant

argued that the city’s installation of a holster for the hose nozzle was not a sufficient

replacement for the safety net that was installed on Engine No. 9 by the manufacturer,

because the holster would not prevent the hose itself from unraveling and falling off of

the fire engine during an emergency run. Therefore, appellant urged that there was a

genuine issue of material fact as to whether the city operated Engine No. 9 in a willful or

wanton manner and, as such, summary judgment was inappropriate.

       {¶ 6} In support of her argument, appellant referenced Debobes’ expert opinion

that the NFPA’s published standards are authoritative standards that must be followed by

all fire departments in the United States. In his affidavit, which was attached to


              A.15.10.7 Many fire departments have experienced fire hose
       inadvertently coming off fire apparatus while traveling to and from
       incidents. Several incidents have resulted in personal injury and damage to
       property. At least one death is directly attributable to an unintentional
       deployment of fire hose during a response. It is imperative that the fire
       apparatus manufacturer provide and the fire department use a means to
       assure this does not occur.

              Fire departments and manufacturers have developed various
       methods of preventing inadvertent deployment of fire hose including: fully
       enclosed hose beds covers, buckled straps, hook and loop straps, fabric
       covers, webbing mesh, wind deflectors, and other material restraints or
       combination of restraints. It is also important that fire departments develop
       methods of storing hose connected nozzles and appliances in a manner that
       does not promote the inadvertent deployment of the hose, nozzle or
       appliance.




4.
appellant’s memorandum, Debobes testified that the city violated NFPA 1901 15.10.7

and A.15.10.7 by removing the safety net from its fire engines, and further opined that

this violation constituted willful and wanton misconduct reflecting a serious disregard for

public safety. Debobes went on to state that the city’s removal of the safety net in this

case proximately caused Holmes’ injury and subsequent death.

       {¶ 7} On August 18, 2017, the city filed its reply to appellant’s memorandum in

opposition, in which it argued that appellant was incorrect in her assertion that NFPA

1901 15.10.7 and A.15.10.7 constituted a legal standard to which the city was bound.

According to the city, NFPA 1901 15.10.7 and A.15.10.7 have not been adopted by the

Ohio Administrative Code, the Ohio Revised Code, or the TFRD. Thus, the city asserted

that appellant’s reliance on NFPA 1901 15.10.7 and A.15.10.7 was misplaced.

Nonetheless, the city asserted that its installation of holsters in place of the safety nets

was in compliance with NFPA 1901 15.10.7 and A.15.10.7. Further, the city argued that

Debobes’ legal conclusions contained in his affidavit were inadmissible and should be

disregarded by the trial court. Ultimately, the city asserted that appellant failed to

introduce any evidence to establish that it acted willfully or wantonly with respect to its

removal of the safety net from Engine No. 9.

       {¶ 8} Upon consideration of the foregoing arguments, the trial court issued its

decision on February 9, 2018. In its decision, the trial court found that NFPA 1901

15.10.7 and A.15.10.7 constituted a binding legal standard of care in this case, based

upon Debobes’ expert testimony and the NFPA publication that was contained in the




5.
record. After examining the language contained in NFPA 1901 15.10.7, the trial court

found that reasonable minds could conclude that the city’s use of nozzle holsters as a

substitute for safety nets constituted a breach of the standard of care set forth in NFPA

1901 15.10.7 and A.15.10.7. However, the court found that the alleged breach was at

most negligent, and could not be construed as willful or wanton.

       {¶ 9} Referencing the deposition testimony of the city’s fire maintenance officer,

the court found that the city’s removal of the safety nets was brought about by firefighter

safety concerns posed by the safety nets hanging off the back of the fire engine when the

fire hoses were deployed, causing the hoses to tangle and tripping firefighters. The court

concluded that the city installed holsters in place of the nets as a means to secure the fire

hoses and expedite deployment during an emergency. Thus, the court found that

reasonable minds could only find that the city did not fail to exercise any care or intend to

cause harm when it removed the safety nets and installed the holsters. Further, the court

noted that the city’s installation of holsters in place of safety nets proved to be “one-

hundred percent effective” at securing fire hoses on the city’s fire engines for the seven

years between installation of the holsters and Holmes’ injury. Given this track record, the

court found that reasonable minds could only conclude that the risk of injury stemming

from the removal of the safety nets was less than probable, and thus the city’s removal of

said nets could not constitute willful or wanton misconduct.

       {¶ 10} Having concluded that appellant failed to demonstrate willful or wanton

misconduct on the part of the city concerning its replacement of the safety net on Engine




6.
No. 9 with a nozzle holster, the trial court found that the city was entitled to immunity

under R.C. 2744.02(B), and granted the city’s motion for summary judgment.

                                B. Assignments of Error

       {¶ 11} Following the trial court’s grant of summary judgment to the city, appellant

filed her timely notice of appeal, in which she raises the following assignments of error

for our review:

              Assignment of error No. 1: The trial court erred in granting

       summary judgment as material questions of fact exist regarding whether

       appellee city of Toledo is entitled to the immunity afforded by R.C.

       2744.02 because the operation of Engine No. 9 on October 18, 2014

       constituted willful or wanton misconduct.

              Assignment of error No. 2: The trial court erred by failing to

       construe the evidence in a light most favorable to appellant as the non-

       moving party.

                                        II. Analysis

       {¶ 12} In her assignments of error, appellant argues that the trial court erred in

granting the city’s motion for summary judgment. Specifically, appellant contends that

the city was not entitled to summary judgment on her wrongful death claim because

material questions of fact existed on the issue of whether the city committed willful or

wanton misconduct, thereby negating the city’s immunity under R.C. 2744.02. Because

appellant’s assignments of error are interrelated, we will address them simultaneously.




7.
                                 A. Standard of Review

       {¶ 13} A motion for summary judgment is reviewed de novo by an appellate court.

Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). “When

reviewing a trial court’s ruling on summary judgment the court of appeals conducts an

independent review of the record and stands in the shoes of the trial court.” Baker v.

Buschman Co., 127 Ohio App.3d 561, 566, 713 N.E.2d 487 (12th Dist.1998).

       {¶ 14} In order to obtain summary judgment at the trial level,

              [I]t must be determined that (1) there is no genuine issue of material

       fact; (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 when viewing the evidence in favor of the nonmoving party,

       and that conclusion is adverse to the nonmoving party. State ex rel. Cassels

       v. Dayton City School Dist. Bd. of Edn., 69 Ohio St.3d 217, 219, 631

       N.E.2d 150 (1994), citing Davis v. Loopco Industries, Inc., 66 Ohio St.3d

       64, 65-66, 609 N.E.2d 144 (1993); see also Civ.R. 56(C).

     B. The City is Immune from Liability on Appellant’s Wrongful Death Claim

       {¶ 15} In her assignments of error, appellant argues that the trial court erred in

finding that the city was immune from liability on her wrongful death claim under R.C.

2744.02.

       {¶ 16} When determining whether a political subdivision is immune from liability,

we engage in a “three-tiered analysis.” Rosenbrook v. Bd. of Lucas Cty. Commrs.,




8.
2015-Ohio-1793, 33 N.E.3d 562, ¶ 15 (6th Dist.), citing Elston v. Howland Local

Schools, 113 Ohio St.3d 314, 2007-Ohio-2070, 865 N.E.2d 845, ¶ 10. First, we examine

whether the general grant of immunity provided by R.C. 2744.02(A) applies. Id. If

immunity applies, we then examine whether immunity has been abrogated by the

exceptions set forth in R.C. 2744.02(B). Id. If an exception applies, the third tier

involves a determination of whether the political subdivision is able to successfully assert

one of the defenses listed in R.C. 2744.03, thereby reinstating its immunity. Id.

       {¶ 17} Here, the city qualifies for immunity as a political subdivision under R.C.

2744.02(A). However, appellant argues that the city’s immunity has been abrogated

pursuant to R.C. 2744.02(B)(1).

       {¶ 18} R.C. 2744.02(B)(1) provides:

              (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:

              ***

              (b) A member of a municipal corporation fire department or any

       other firefighting agency was operating a motor vehicle while engaged in

       duty at a fire, proceeding toward a place where a fire is in progress or is




9.
       believed to be in progress, or answering any other emergency alarm and the

       operation of the vehicle did not constitute willful or wanton misconduct.

       {¶ 19} It is undisputed that Holmes was injured when he was struck by a fire hose

that broke free from its restraints on Engine No. 9, a fire truck owned by the city and

operated by its employees. Moreover, it is clear that the firefighters were operating

within their scope of employment and authority and responding to an emergency call,

thereby triggering the heightened standard of “willful or wanton misconduct” under R.C.

2744.02(B)(1)(b). Accordingly, we must review whether the city’s operation of Engine

No. 9 without the manufacturer-installed safety net constituted misconduct sufficient to

remove the city from the statutory immunity set forth above.

       {¶ 20} The Supreme Court of Ohio has defined the terms “willful” and “wanton,”

indicating that they are two distinct concepts. “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.” Anderson v. Massillon,

134 Ohio St.3d 380, 2012-Ohio-5711, 983 N.E.2d 266, paragraph two of the syllabus.

“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.”

Id. at paragraph three of the syllabus. These standards “describe conduct that is more

than mere negligence. * * * If reasonable minds could only conclude that the * * *




10.
conduct demonstrates, at most, negligence, then summary judgment is appropriate.”

Hoffman v. Gallia Cty. Sheriff’s Office, 2017-Ohio-9192, ¶ 47, 103 N.E.3d 1 (4th Dist.).

       {¶ 21} Applying the foregoing standards to this case, appellant is required to

demonstrate that the city knew or should have known that injury to others would be the

probable result of removing the safety net on Engine No. 9 in order to establish willful

misconduct. Tighe v. Diamond, 149 Ohio St. 520, 527, 80 N.E.2d 122 (1948). Likewise,

in order to demonstrate wanton misconduct, appellant must demonstrate that the city

failed to exercise any care in circumstances in which there is great probability that harm

will result.

       {¶ 22} The evidence contained in the record by way of deposition testimony

reveals that the city removed the safety nets on its fire engines to facilitate firefighter

safety, based upon incidents in which TFRD firefighters were tripped by the nets when

they were attempting to utilize fire hoses. According to TFRD’s fire maintenance officer,

the nets also slowed down firefighting efforts that are time-sensitive in nature. As a

result, TFRD decided to remove the safety nets and install holsters in their place. The

holsters that were installed eliminated the trip hazard presented by the nets, while at the

same time facilitating expedient use of the fire hoses. Since the nets were removed and

the holsters installed, the city has safely completed over one million runs without a fire

hose coming loose from a fire engine. To us, the fact that over one million runs have

taken place without incident demonstrates that injury to others does not ordinarily follow

from the removal of safety nets and installation of the holsters.




11.
         {¶ 23} Notwithstanding that, appellant argues that the city was on notice of the

risk of injury attendant to the removal of the safety net, based upon the language

contained in NFPA 1901 15.10.7 and A.15.10.7. NFPA 1901 A.15.10.7 mentions the

fact that “[m]any fire departments have experienced fire hose inadvertently coming off

fire apparatus while traveling to and from incidents.” However, NFPA 1901 A.15.10.7

does not detail the circumstances surrounding the prior incidences in which hoses were

inadvertently unsecured from fire engines, and fails to identify whether the fire engines

involved in those incidences utilized a nozzle holster system similar to the one deployed

by the city. Further, there is no evidence that the firefighters involved in this case

actually knew of the NFPA provision when the safety nets were removed and replaced

with nozzle holsters. Thus, the record does not support a finding that the city failed to

exercise any care or intended to harm others when it removed the safety net on Engine

No. 9.

         {¶ 24} In light of the foregoing, we conclude that the evidence, construed in a light

most favorable to appellant as the nonmoving party, could only lead a reasonable person

to conclude that the city’s removal of the safety net on Engine No. 9 did not rise to the

level of willful or wanton misconduct. Consequently, the trial court did not err in

awarding summary judgment to the city after concluding that the city is entitled to

immunity on appellant’s wrongful death claim.

         {¶ 25} Accordingly, appellant’s assignments of error are not well-taken.




12.
                                     III. Conclusion

       {¶ 26} Based on the foregoing, the judgment of the Lucas County Court of

Common Pleas is affirmed. Costs are hereby assessed to appellant in accordance with

App.R. 24.


                                                                       Judgment affirmed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Thomas J. Osowik, J.                           _______________________________
                                                           JUDGE
James D. Jensen, J.
                                               _______________________________
Christine E. Mayle, P.J.                                   JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE



           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




13.
