Anderson v. Massillon , 2014 Ohio 2516 ( 2014 )

[Cite as Anderson v. Massillon, 2014-Ohio-2516.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
ANDERSON, ADM. : JUDGES:
:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee/Cross-Appellant : Hon. William B. Hoffman, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case No. 2013CA00144
:
CITY OF MASSILLON, ET AL. :
:
:
Defendants-Appellants/Cross- : OPINION
Appellees :
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas, Case No.
2009CV03641
JUDGMENT: AFFIRMED IN PART; REVERSED AND
REMANDED IN PART
DATE OF JUDGMENT ENTRY: June 9, 2014
APPEARANCES:
For Plaintiff-Appellee/Cross-Appellant: For Defendants-Appellants/Cross-
Appellees:
LEE E. PLAKAS
DAVID L. DINGWELL GREGORY A. BECK
JAMES G. MANNOS MEL L. LUTE, JR.
EDMOND J. MACK JAMES F. MATHEWS
220 Market Ave. South, 8th Floor 400 South Main St.
Canton, OH 44702 North Canton, OH 44720
DAVID G. UTLEY
One Cascade Plaza, Suite 800
Akron, OH 44308
Stark County, Case No. 2013CA00144 2
Delaney, J.
{¶1} Plaintiff-Appellee/Cross-Appellant Cynthia Anderson, Administratrix of the
Estates of Ronald E. Anderson and Javarre J. Tate and Defendants-Appellants/Cross-
Appellees City of Massillon, Susan J. Toles, and Rick H. Annen appeal the July 15,
2013 judgment entry of the Stark County Court of Common Pleas. For the reasons that
follow, we affirm in part and reverse and remand in part the judgment of the trial court.
FACTS AND PROCEDURAL HISTORY
{¶2} At 8:30 a.m. on May 6, 2008, Tammy Lockey called 9-1-1 to report a car
fire at 1272 Huron Road in Massillon, Ohio. The call was received by the RED Center,
the central dispatch for the City of Massillon and other political subdivisions. Dispatcher
Lynne Martin Joiner received the call. Joiner routed the call to Thomas Thornberry, the
fire dispatcher. Thornberry consulted his computer to dispatch the first available fire
engine in Massillon. Thornberry also inquired of Joiner whether the fire was near a
house.
{¶3} At 8:31 a.m., a tone was sounded in Station 1 of the Massillon Fire
Department for Engine 214, a pumper truck, to respond to the car fire. Rescue 250,
approximately the size of an ambulance and that holds certain rescue equipment, was
also ordered to respond to the car fire. Joiner called Lockey back and inquired whether
the car fire was near a house. Lockey stated the car fire was near a house and Joiner
relayed the information to Thornberry. Thornberry then toned Station 1 at 8:33:03 a.m.
and dispatched the second engine, Engine 211, a 75-foot aerial ladder truck, instead of
Rescue 250.
Stark County, Case No. 2013CA00144 3
{¶4} At 8:33:43 a.m., Engine 214 left Station 1. Engine 214 was driven by
Firefighter Greenwood and commanded by Captain Smith. Engine 214 proceeded down
Erie Street to Walnut Street towards the dispatched location. Engine 214 traveled with
its lights and sirens activated.
{¶5} Captain Rick Annen, the shift commander, directed Rescue 250 to remain
at Station 1 because Engine 211 would instead respond to the car fire. Firefighters
Jason Castile and Ernie Bard sat in the rear-facing passenger seats of Engine 211.
Captain Annen commanded Engine 211 and sat in the commander’s seat on the right
passenger side of Engine 211. Firefighter Susan Toles drove Engine 211. At 8:34:25
a.m., Engine 211 left Station 1 and followed the same route to the dispatched location
as Engine 214.
{¶6} As commander, some of Captain Annen’s responsibilities while reporting
to an emergency call are to consult a map book and to operate the siren and air horn.
On May 6, 2008, when Captain Annen first got into Engine 211 he turned on the
emergency lights and electronic siren that made a high and low pitch. He operated the
air horn manually by a foot pedal. Captain Annen sounded the air horn at intersections.
While in transit to the emergency call, Captain Annen referred to the map book he was
holding.
{¶7} In order to respond to the car fire location, Engine 214 and Engine 211
traveled on Walnut Street. Walnut Street is a narrow, two-lane street traveling east and
west in a residential area. It has a speed limit of 25 miles per hour. Walnut Street
intersects with Johnson Street. Johnson Street travels north and south. The intersection
of Walnut Street and Johnson Street is a three-way stop controlled by stop signs and an
Stark County, Case No. 2013CA00144 4
overhead flashing red light. On the westbound side of Walnut Street, almost directly
across from Johnson Street, is the driveway to a school. On May 6, 2008, a tree, utility
pole, bushes, parked cars, and a house close to the street partially obstructed the view
of the traffic approaching from Johnson Street to Walnut Street.
{¶8} When Engine 211 turned eastbound on to Walnut Street, Captain Annen
could not see Engine 214 ahead of them. Firefighter Toles stated she could see Engine
214 ahead of them.
{¶9} Firefighter Greenwood, the driver of Engine 214, slowed down at Johnson
Street to ensure that the intersection was clear of traffic before proceeding through it. At
that time, Deanna Jackson was stopped on Beckman Street waiting to turn northbound
onto Johnson Street. Jackson saw the first fire truck pass on Walnut Street while she
was waiting to turn onto Johnson Street. Jackson saw Ronald Anderson driving
northbound on Johnson Street. Ronald Anderson was driving his grandson Javarre Tate
to the school located on Walnut Street. Anderson waved to Jackson and she pulled onto
Johnson Street behind Anderson’s vehicle. Jackson stated Anderson was stopped at
the stop sign at Johnson and Walnut Street.
{¶10} As Firefighter Toles drove Engine 211 on Walnut Street, she observed a
school bus pulled to the eastbound side of the road, yielding to the fire truck. Toles
slowed down to make sure there were no children on the street and that the school bus
stop sign was not out. Toles stated that after she determined the school bus was
yielding, she moved left of center because of the presence of a parked car and school
bus on eastbound side of Walnut Street.
Stark County, Case No. 2013CA00144 5
{¶11} Engine 211 approached the Johnson Street intersection traveling at a
speed exceeding 25 miles per hour. Toles stated that she scanned the intersection of
Johnson and Walnut Street to make sure the intersection was clear and she determined
no one was in the intersection.
{¶12} Jackson stated she heard sirens while she was on Johnson Street but she
did not see a second fire truck. Jackson said she saw Anderson drive into the
intersection. She then witnessed Engine 211 drive on the left side of the street and
strike the center of Anderson’s minivan. Captain Annen stated he saw Ronald
Anderson’s minivan slowly roll through the stop sign at Johnson Street to cross Walnut
Street. He yelled to Toles, “He’s not stopping!” Toles stated that as she approached the
intersection, she saw the minivan “shoot out in front” of Engine 211. She did not apply
the brakes because of the jake brake system on Engine 211, but maneuvered the truck
to the left to avoid hitting the minivan and get around. Engine 211 collided with the
minivan, resulting in the deaths of Ronald Anderson and Javarre Tate.
{¶13} Ohio State Highway Patrol Trooper Frederick J. Cook assisted in the
investigation of the accident. In his reconstruction report, he calculated that Engine 211
had been traveling between 44 and 50 miles per hour. Trooper Cook also opined that
given the decreased range of visibility caused by obstructions near the intersection, a
driver stopped at the stop sign on Johnson Street might not have been able to see the
fire truck approaching.
{¶14} Plaintiff-Appellee/Cross-Appellant Cynthia Anderson filed a wrongful-
death action alleging that the City of Massillon, Toles, and Annen had willfully, wantonly,
and recklessly caused the deaths of her husband and grandson.
Stark County, Case No. 2013CA00144 6
{¶15} Anderson’s expert, Choya R. Hawn, calculated the fire truck’s minimum
speed at the point of impact was between 49 and 52 miles per hour. He opined that
because of roadside obstructions, Engine 211 was not visible to Ronald Anderson at the
time he entered the intersection. Hawn also stated that he believed emergency vehicles
approaching a stop sign should proceed at 10 miles per hour or slower to ensure the
ability to stop. He further noted the danger of emergency vehicles running in tandem
because the siren of the first vehicle could have masked the siren of the second,
preventing Ronald Anderson from noticing the approaching fire truck.
{¶16} Scott A. Noll, an accident reconstructionist testifying for the City of
Massillon and the firefighters, concluded that Engine 211 was traveling at 39 miles per
hour and Toles had allowed adequate time and distance to evaluate the lanes of travel
before proceeding through the intersection. Noll further opined that Anderson caused
the accident by failing to stop at the stop sign.
{¶17} The City of Massillon, Toles, and Annen moved for summary judgment.
The trial court granted summary judgment in their favor, finding the City of Massillon
had a full defense to liability pursuant to R.C. 2744.02(B)(1)(b), because Engine 211
was responding to an emergency call and the operation of the fire truck did not
constitute willful or wanton misconduct. The trial court further found the firefighters were
entitled to immunity pursuant to R.C. 2744.03(A)(6)(b) because Anderson failed to
present any evidence that the firefighters had acted with malicious purpose, in bad faith,
or in a wanton or reckless manner.
{¶18} Anderson appealed the trial court’s judgment entry to this court. In
Anderson v. Massillon, 193 Ohio App. 3d 297, 2011-Ohio-1328, 951 N.E.2d 1063 (5th
Stark County, Case No. 2013CA00144 7
Dist.) (“Anderson I”), we reversed the judgment of the trial court. We held there was a
genuine issue of material fact whether the actions of Toles and Annen were reckless
under R.C. 2744.03(A)(6)(b). Id. at ¶ 73. We also held that the wanton and reckless
misconduct standard set forth in R.C. 2744.03(A)(6) and the willful and wanton
misconduct standard set forth in R.C. 2744.02(B)(1)(b) were functionally equivalent. Id.
at ¶ 46. We determined the City of Massillon and the firefighters were not immune if the
firefighters had acted recklessly in causing the collision. Id. at ¶ 73.
{¶19} The City of Massillon, Toles, and Annen appealed to the Ohio Supreme
Court. They argued the terms “willfully,” “wanton,” and “reckless” were not
interchangeable but described different degrees of care. The question accepted for
appeal by the Supreme Court was: “whether the standard in R.C. 2744.02(B)(1)(b),
which affords a full defense to liability to a political subdivision unless the operation of a
fire-department vehicle constitutes willful or wanton misconduct, is equivalent to the
standard in R.C. 2744.03(A)(6)(b), which grants immunity to employees of political
subdivisions unless their acts or omissions were committed in a wanton or reckless
manner.” Anderson v. Massillon, 134 Ohio St. 3d 380, 2012-Ohio-5711, 983 N.E.2d 266,
¶ 18.
{¶20} In Anderson v. Massillon, 134 Ohio St. 3d 380, 2012-Ohio-5711, 983
N.E.2d 266 (“Anderson II”), the Supreme Court held that “willful,” “wanton,” and
“reckless” describe different and distinct degrees of care and are not interchangeable.
Id. at paragraph one of syllabus. The Court then clarified the respective standards. The
Court remanded the case to the trial court for further proceedings to determine,
Stark County, Case No. 2013CA00144 8
pursuant to the clarification of the terms, whether the City of Massillon had a full
defense to liability and whether the firefighters were entitled to immunity. Id. at ¶ 3.
{¶21} The City of Massillon, Toles, and Annen filed a second motion for
summary judgment and Anderson responded. On July 15, 2013, the trial court found the
City of Massillon was immune from liability pursuant to R.C. 2744.02(B)(1)(b) because
reasonable minds could only conclude that the actions of Toles and Annen on May 6,
2008 were not willful or wanton. Under R.C. 2744.03(A)(6), the trial court found there
was a genuine issue of material fact whether the actions of Toles and Annen were
reckless; therefore, the firefighters were not entitled to immunity from liability as a matter
of law.
{¶22} It is from this decision the City of Massillon, Toles, and Annen now appeal.
For ease of discussion, the City of Massillon, Toles, and Annen will be referred to at
times as “Massillon.”
ASSIGNMENTS OF ERROR
{¶23} Massillon raises three Assignments of Error:
{¶24} “I. THE TRIAL COURT ERRED WHEN IT DENIED SUMMARY
JUDGMENT IN FAVOR OF THE APPELLANTS TOLES AND ANNEN, THEREBY
DENYING THE EMERGENCY PERSONNEL THE BENEFIT OF IMMUNITY IN THE
FORM OF A ‘FULL DEFENSE’ PROVIDED BY LAW.
{¶25} “II. THE TRIAL COURT ERRED WHEN IT DENIED SUMMARY
JUDGMENT IN FAVOR OF THE APPELLANTS TOLES AND ANNEN, AFFECTING
AND UNDERMINING THE IMMUNITY FROM LIABILITY IN THE FORM OF A ‘FULL
DEFENSE’ EXTENDED TO APPELLANT MASSILLON BY OPERATION OF LAW.
Stark County, Case No. 2013CA00144 9
{¶26} “III. THE TRIAL COURT ERRED WHEN IT OVERRULED THE MOTION
FOR SUMMARY JUDGMENT IN FAVOR OF THE APPELLANTS TOLES AND
ANNEN, THEREBY DENYING THE EMERGENCY PERSONNEL THE BENEFIT OF
IMMUNITY UNDER THE STANDARD OF R.C. 2744.03(A)(6)(b).”
CROSS-ASSIGNMENT OF ERROR
{¶27} Anderson raises one Cross-Assignment of Error:
{¶28} “I. THE TRIAL COURT ERRED AS A MATTER OF LAW IN GRANTING
SUMMARY JUDGMENT TO CROSS-APPELLEE CITY OF MASSILLON.
ANALYSIS
Summary Judgment Standard of Review
{¶29} The Assignments of Error of Massillon and Anderson concern the trial
court’s judgment entry granting in part and denying in part Massillon’s motion for
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
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
Stark County, Case No. 2013CA00144 10
summary judgment is made, such party being entitled to have the
evidence or stipulation construed most strongly in the party's favor.
{¶30} 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).
{¶31} 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).
Immunity
{¶32} The issues presented in this case have been well developed through the
appellate process. The issues are (1) whether the City of Massillon is entitled to the full
defense to liability for a political subdivision and (2) whether Toles and Annen are
granted immunity from suit as employees of a political subdivision. In order to determine
the liability of the City of Massillon, Toles, and Annen, we conduct our analysis pursuant
to the language of two statutes: R.C. 2744.02(B)(1) and R.C. 2744.03(A)(6). The
relevant portions of those statutes set forth different degrees of care (willful, wanton and
Stark County, Case No. 2013CA00144 11
reckless conduct) that can impose liability upon the political subdivision and/or the
employee of the political subdivision.
{¶33} However, before we engage in our de novo review of the Civ.R. 56
evidence as to the issues presented and applicable statutes, we recite the facts that are
not in dispute. The City of Massillon is a political subdivision. On May 6, 2008, Toles
and Annen were employees of the City of Massillon Fire Department. On May 6, 2008,
Toles and Annen were operating a motor vehicle while proceeding toward a place
where a fire was in progress or was believed to be in progress and they were answering
an emergency alarm.
R.C. 2744.02 – Governmental Immunity
{¶34} 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.”
{¶35} A three-tiered analysis is required to determine whether a political
subdivision is immune from tort liability pursuant to R.C. 2744. Green Cty. Agricultural
Soc. v. Liming, 89 Ohio St. 3d 551, 556-557, 733 N.E.2d 1141 (2000); Smith v. McBride,
130 Ohio St. 3d 51, 2011-Ohio-4674, 955 N.E.2d 954, ¶13-15. The first tier is the
general rule that a political subdivision is immune from liability incurred in performing
either a governmental or a proprietary function. Green Cty. Agricultural Society, at 556-
557, 733 N.E.2d 1141; R.C. 2744.02(A)(1). That immunity, however, is not absolute.
R.C. 2744.02(B); Carter v. Cleveland, 83 Ohio St. 3d 24, 697 N.E.2d 610 (1998). “The
Stark County, Case No. 2013CA00144 12
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. “In cases involving the alleged negligent operation of a motor
vehicle by an employee of a political subdivision, the second tier of the analysis includes
consideration of whether the specific defenses of R.C. 2744.02(B)(1)(a) through (c)
apply to negate the immunity exception of R.C. 2744.02(B)(1).” Smith v. McBride, 2011-
Ohio-4674, ¶ 14 citing Colbert v. Cleveland, 99 Ohio St. 3d 215, 2003-Ohio-3319, 790
N.E.2d 781, ¶ 8. “If any of the exceptions to immunity of R.C. 2744.02(B) do apply, and
if no defense in that section applies to negate the liability of the political subdivision
under that section, then the third tier of the analysis requires an assessment of whether
any defenses in R.C. 2744.03 apply to reinstate immunity.” Id. at ¶ 15 citing Colbert at ¶
9.
R.C. 2744.02(B)(1)(b) – Full Defense to Liability
{¶36} The first statute relevant to the resolution of this case is R.C. 2744.02(B).
R.C. 2744.02(B) addresses the liability of a political subdivision and the full defenses to
liability for the operation of a motor vehicle by employees. It states:
(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
Stark County, Case No. 2013CA00144 13
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 believed to be in progress, or
answering any other emergency alarm and the operation of the vehicle did not
constitute willful or wanton misconduct;
***
R.C. 2744.03(A)(6)(b) – Employee Immunity
{¶37} The three-tiered analysis of liability applicable to a political subdivision as
set forth above does not apply when determining whether an employee of a political
subdivision will be liable for harm caused to an individual. Mashburn v. Dutcher, 5th
Dist. Delaware No. 12 CAE 010003, 2012-Ohio-6283, -- N.E.2d --, ¶ 33 citing Cramer v.
Auglaize Acres, 113 Ohio St. 3d 266, 2007-Ohio-1946, 865 N.E.2d 9, ¶ 17. We review
the next statute relevant to this case, R.C. 2744.03(A)(6), to determine the liability of an
employee of a political subdivision. 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 or (b) the employee’s acts or omissions were with malicious purpose, in
bad faith, or in a wanton or reckless manner. An employee is immune from liability for
negligent acts or omissions. Anderson II, supra at ¶ 23.
Stark County, Case No. 2013CA00144 14
Degrees of Care
{¶38} The Ohio Supreme Court stated in Anderson II that the General Assembly
set forth three different degrees of care in R.C. 2744.02(B)(1)(b) and 2744.03(A)(6)(b)
to impose liability on a political subdivision or an employee of a political subdivision.
Anderson II, supra at ¶ 23. The degrees of care found in the statutes are “willful,”
“wanton,” and “reckless.” The Anderson II court clarified that the terms “willful,”
“wanton,” and “reckless” used in the statutes are not interchangeable and it set forth the
following definitions:
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. at 527, 80 N.E.2d 122; see also Black's Law
Dictionary 1630 (8th Ed.2004) (describing willful conduct as the voluntary
or intentional violation or disregard of a known legal duty).
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, 50 Ohio St. 2d at 117–118, 363
N.E.2d 367; see also Black's Law Dictionary 1613–1614 (8th Ed.2004)
(explaining that one acting in a wanton manner is aware of the risk of the
conduct but is not trying to avoid it and is indifferent to whether harm
results).
Stark County, Case No. 2013CA00144 15
Reckless conduct is characterized by the conscious disregard of or
indifference to a known or obvious risk of harm to another that is
unreasonable under the circumstances and is substantially greater than
negligent conduct. Thompson, 53 Ohio St. 3d at 104–105, 559 N.E.2d 705,
adopting 2 Restatement of the Law 2d, Torts, Section 500, at 587 (1965);
see also Black's Law Dictionary 1298–1299 (8th Ed.2004) (explaining that
reckless conduct is characterized by a substantial and unjustifiable risk of
harm to others and a conscious disregard of or indifference to the risk, but
the actor does not desire harm).
Anderson II, supra at ¶ 32-34.
{¶39} R.C. 2744.02(B)(1)(b) states that in order to negate the immunity of the
political subdivision when its employee is operating a motor vehicle and responding to a
fire emergency, the conduct of the employee when operating the motor vehicle must be
willful or wanton. R.C. 2744.03(A)(6)(b) states that an employee of a political
subdivision can be liable if the employee’s acts or omissions were done in a wanton or
reckless manner. The only overlap between the statutes is for acts committed in a
wanton manner.
{¶40} The Anderson II court analyzed the basis for the different degrees of care:
In the foregoing statutes, the General Assembly set forth different
degrees of care that impose liability on a political subdivision or on an
employee of a political subdivision. The legislature expressly stated that a
political subdivision has a full defense to liability when the conduct
involved is not willful or wanton, and therefore if the conduct is only
Stark County, Case No. 2013CA00144 16
reckless, the political subdivision has a full defense to liability. In addition,
the legislature expressly removed immunity from employees of a political
subdivision for wanton or reckless conduct in R.C. 2744.03(A)(6)(b). By
implication, an employee is immune from liability for negligent acts or
omissions.
***
When the General Assembly used the terms ‘willful’ or ‘wanton’ in
R.C. 2744.02(B)(1)(b) to deny a full defense to liability for a political
subdivision and the terms wanton or reckless in R.C. 2744.02(A)(6)(b) to
remove immunity of an employee of the political subdivision, it intended
different degrees of care.
Anderson II, supra at ¶ 23 and ¶ 36.
{¶41} Whether an actor’s conduct was malicious, wanton, reckless, or in bad
faith is generally a fact question for the jury to decide. See Fabrey v. McDonald Village
Police Dept., 70 Ohio St. 3d 351, 356, 639 N.E.2d 31 (1994). Utilizing the Anderson II
definitions for wanton, willful, or reckless conduct, we conduct a de novo review of the
Civ.R. 56 evidence to determine whether there are genuine issues of material fact as to
the liability of the City of Massillon, Toles, and Annen under R.C. 2744.02(B)(1)(b) or
R.C. 2744.03(A)(6)(b). Our previous analysis of the Civ.R. 56 evidence conducted
under Anderson I as to these issues does not have relevance to our determination
today because the Anderson II court found our use of the definitions of wanton, willful,
and reckless was incorrect. Our analysis today utilizes the distinct degrees of care of
R.C. 2744.02(B)(1)(b) and R.C. 2744.03(A)(6)(b) as promulgated by Anderson II.
Stark County, Case No. 2013CA00144 17
The Liability of the City of Massillon under R.C. 2744.02(B)(1)(b)
{¶42} Under R.C. 2744.02(B)(1)(b), a political subdivision has a full defense to
liability for the operation of a motor vehicle by its employees if the operation of the motor
vehicle when responding to a fire emergency did not constitute willful or wanton
misconduct. In its judgment entry granting summary judgment in favor of the City of
Massillon, the trial court found there was no genuine issue of material fact that the City
of Massillon was entitled to the full defense to liability under R.C. 2744.02(B)(1)(b).
Anderson argues in her sole Cross-Assignment of Error that the trial court erred in
finding the City of Massillon was entitled to the full defense to liability because
reasonable minds could come to different conclusions as to whether Toles’s and
Annen’s operation of Engine 211 on May 6, 2008 constituted wanton misconduct. We
agree.
The Meaning of Willful or Wanton Misconduct
{¶43} The Anderson II court reaffirmed that willful and wanton misconduct
describe two distinct legal standards. See Mashburn v. Dutcher, 5th Dist. Delaware No.
12 CAE 010003, 2012-Ohio-6283, -- N.E.2d --, ¶ 41 citing Gardner v. Ohio Valley
Region Sports Car Club of Am., 10th Dist. Franklin No. 01 AP–1280, 2002-Ohio-3556,
at ¶ 11.
{¶44} “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 a great probability that
harm will result.” Anderson II, supra at ¶ 33. Wanton misconduct has been likened to
conduct that manifests a “disposition to perversity,” but the Supreme Court abandoned
“disposition to perversity” as an element of the definition of wanton misconduct in
Stark County, Case No. 2013CA00144 18
Hawkins v. Ivy, 50 Ohio St. 2d 114, 363 N.E.2d 367 (1977). Anderson II, supra at ¶ 28.
“‘[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
Village 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. “[I]t must be under such surrounding circumstances
and existing conditions that the party doing the act or failing to act must be conscious,
from his knowledge of such surrounding circumstances and existing conditions, that his
conduct will in all common probability result in injury.” Anderson II, supra at ¶ 25 citing
Universal Concrete Pipe Co. v. Bassett, 130 Ohio St. 567, 200 N.E. 843 (1936),
paragraph two of syllabus.
{¶45} “Willful conduct 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 II, supra at ¶ 32. 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 (2nd Dist.1994), citing Tighe v. Diamond, 149 Ohio St. 520, 526–527,
80 N.E.2d 122 (1948). “Willful misconduct” involves a more positive mental state
prompting the injurious act than wanton misconduct, but the intention relates to the
Stark County, Case No. 2013CA00144 19
misconduct, not the result. Mashburn v. Dutcher, 5th Dist. No. 12 CAE 010003, 2012-
Ohio-6283, ¶ 45.
{¶46} Both wanton and willful describes conduct that is greater than negligence
and can be summarized as follows: willful conduct is the intent to harm someone and
wanton misconduct is the failure to exercise any care whatsoever. Anderson II, supra at
¶ 48.
{¶47} In the present case, the alleged violations of local ordinances and
departmental policies in the operation of Engine 211 on May 6, 2008 are relevant to, but
not determinative of, the determination of willful, wanton, or reckless misconduct. The
Anderson II court stated as to the consideration of the violation of statutes, ordinances,
or departmental policies in determining whether there is willful or wanton conduct:
[I]t is well established that 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.
However, as the Restatement explains,
In order that the breach of [a] statute constitute reckless disregard
for the safety of those for whose protection it is enacted, the statute
must not only be intentionally violated, but the precautions required
must be such that their omission will be recognized as involving a
high degree of probability that serious harm will result.
Thus, as we concluded in O’Toole v. Denihan, 118 Ohio St. 3d 374,
2008-Ohio-2574, 889 N.E.2d 505, “[w]ithout evidence of an accompanying
Stark County, Case No. 2013CA00144 20
knowledge that the violations ‘will in all probability result in injury,’
evidence that policies have been violated demonstrates negligence at
best.” Id. at 92.
(Citations omitted.) Anderson II, supra at ¶ 37-38.
Was the Conduct of Toles and Annen Wanton?
{¶48} Anderson argues the totality of the evidence demonstrates there is a
genuine issue of material fact as to whether the conduct of Toles and Annen
demonstrated wanton misconduct. Anderson does not argue in her appellate brief that
the conduct of Toles and Annen was willful and therefore, we will not address willful
misconduct in relation to the facts presented. In support of Anderson’s argument that
the conduct of the firefighters was wanton, she directs the court to consider the physical
circumstances of the scene where the accident occurred in relation to Toles’s and
Annen’s conduct that consisted of alleged violations of local ordinances and
departmental policies when responding to the emergency call. Anderson argues Toles’s
and Annen’s actions when approaching the intersection at Johnson and Walnut Street
demonstrated wanton misconduct.
{¶49} The determination of whether the conduct of Toles and Annen on May 6,
2008 was wanton is made considering the totality of the circumstances. Anderson v.
Massillon, 193 Ohio App. 3d 297, 2011-Ohio-1328, 951 N.E.2d 1063, ¶ 55. We also
make our determination of whether there was wanton misconduct under the dictates of
Civ.R. 56. We conduct a de novo review and consider the Civ.R. 56 evidence
presented in a light most favorable to Anderson, the non-moving party, to determine
whether there are genuine issues of material fact for trial.
Stark County, Case No. 2013CA00144 21
{¶50} Anderson first points the court to the speed at which Toles approached
and entered the Johnson and Walnut Street intersection. The speed limit on Walnut
Street is 25 miles per hour. There is no dispute of fact that on May 6, 2008, Toles was
operating Engine 211 at a speed in excess of 25 miles per hour. Ohio State Highway
Patrol Trooper Frederick J. Cook assisted in the investigation of the accident. In his
reconstruction report, he calculated that Engine 211 had been traveling at a minimum
speed of 44 and 50 miles per hour. Anderson’s expert, Choya R. Hawn, calculated the
fire truck’s minimum speed at the point of impact was between 49 and 52 miles per
hour. Scott A. Noll, an accident reconstructionist testifying for Massillon, concluded that
Engine 211 was traveling at 39 miles per hour.
{¶51} On May 6, 2008, the City of Massillon did not impose a specific limitation
on its firefighters to operate its emergency vehicles a certain miles per hour over the
posted speed limit when responding to an emergency. (Krause Depo., p. 50). Robert C.
Krause, Anderson’s expert testifying as to the operation of emergency vehicles, referred
to the ASTM International, Standard Guide for Training Emergency Medical Services
Ambulance Operations, Section 14.5.4.1, that stated, “under emergency response
conditions, the speed shall not exceed that which is safe for road or environmental
conditions. In no case shall the speed exceed 10 mph over the posted speed limit.”
Jason Castile, a City of Massillon firefighter in Engine 211 on May 6, 2008, testified that
he felt “10 miles an hour over the speed limit is allowable when traveling in an
emergency.” (Castile Depo., p. 41). Castile thought that was a state policy. (Castile
Depo., p. 42). Annen testified that he believed Toles was driving 35 to 40 miles per
Stark County, Case No. 2013CA00144 22
hour. (Annen Depo., p. 99). He did not feel her speed was excessive and was within a
safe parameter. (Annen Depo., p 101).
{¶52} Anderson next argues the court should consider Toles’s speed when
driving Engine 211 in relation to the physical circumstances of the scene of the
accident. The intersection of Johnson and Walnut Street is a four-way stop, marked by
stop signs and an overhead flashing red light. Toles did not stop Engine 211 when she
crossed through the intersection. Massillon Ordinance 331.20(a) states, “[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 shall slow down as necessary
for safety to traffic, but may proceed cautiously past such red or stop sign or signal with
due regard for the safety of all persons using the street or highway.”
{¶53} Massillon Ordinance 331.20(a) authorized Toles and Annen to proceed
through a stop sign without stopping under certain conditions when responding to an
emergency call. Anderson argues, however, the Johnson and Walnut intersection is a
blind intersection, which required Toles to apply the brakes and/or stop at the
intersection. Massillon Fire Department Standard Operating Procedures §307.03,
effective July 27, 2007, is entitled “Driver Responsibility” and states:
A. The driver of any Massillon Fire Department vehicle shall be directly
responsible for the sage and prudent operation of the vehicle.
B. The driver’s first priority shall be the safe arrival of the emergency
vehicle at the emergency scene.
***
Stark County, Case No. 2013CA00144 23
D. During emergency response, the driver shall bring the vehicle to a
complete stop for any of the following:
–when so directed by a law enforcement official
–blind intersections
–when the driver cannot account for all lane of traffic in an
intersection
–when other intersection hazards are present
–when encountering a stopped school bus with flashing warning
lights
{¶54} On May 6, 2008, a tree, utility pole, bushes, parked cars, and a house
close to the street partially obstructed the view of the traffic approaching from Johnson
Street to Walnut Street. Choya R. Hawn, Anderson’s accident reconstructionist, opined
that “[t]he buildings, fence, utility poles, bushes, and trees in the southwest quadrant of
the intersection of Walnut Street SE and Johnson Street SE created a fixed object view
obstruction which limited the line of sight (West) from the stop sign at Johnson Street to
323 feet (for both drivers).” Scott A. Noll, accident reconstructionist for Massillon, stated
in his expert report the “sight distance was limited due to various trees, bushes, and a
residential structure located on the south side of Walnut Street.”
{¶55} Toles stated that she scanned the intersection of Johnson and Walnut
Street to make sure the intersection was clear and she determined no one was in the
intersection. Toles did not stop Engine 211 at the intersection. While Engine 211 has
jake brakes that activate when the foot is taken off the accelerator, Toles did not recall
taking her foot off the accelerator when she entered the intersection. Annen stated he
Stark County, Case No. 2013CA00144 24
saw Ronald Anderson’s minivan slowly roll through the stop sign at Johnson Street to
cross Walnut Street. Annen yelled to Toles, “He’s not stopping!” Toles stated that as
she approached the intersection, she saw the minivan “shoot out in front” of Engine 211.
Daniel Clark, a witness to the accident, stated in his affidavit submitted in support of
Anderson’s response to the motion for summary judgment: “[t]he fire truck did not slow
before entering the intersection and I heard no sound of it braking or skidding.”
{¶56} Anderson argues there is a genuine issue of material fact whether
Annen’s conduct as captain on May 6, 2008 was wanton. Massillon Fire Department
Standard Operating Procedures §307.04 details the “Officer’s Responsibility:”
***
B. The Officer shall ensure that the driver is operating the vehicle in a
safe and prudent manner at all times in accordance with department
policy and state statutes.
C. The Officer shall issue warnings about road conditions and physical
hazards to the driver when necessary.
D. The Officer shall be responsible to operate the radio, communications
equipment, audible and visual warning devices.
E. The Officer shall assist the driver with intersection crossing, locating
the scene, backing, and any other necessary safety practice.
{¶57} Anderson also argues there is a genuine issue of material fact that
because of the speed of Engine 211, Engine 211’s siren was masked by the siren of
Engine 214 or that Engine 211 outran its siren so that Ronald Anderson did not hear
Engine 211 approaching the intersection. Engine 211 was following Engine 214 down
Stark County, Case No. 2013CA00144 25
Walnut Street at some distance apart. Toles testified that she received training that if
two emergency vehicles were responding in tandem, there was a possibility that one
siren could mask the other siren. (Toles Depo., p. 103). She was not aware if Engine
211 and Engine 214 were using different styles of siren wails on May 6, 2008. (Toles
Depo., p. 104). Toles testified that she was also trained on the effect of speed on the
siren’s ability to warn motorists. (Toles Depo., p. 105). She stated that at certain
speeds, the siren might not be as loud. Toles stated that with a larger vehicle such as
Engine 211, the siren might become ineffective at 45 to 50 miles per hour. (Toles Depo.,
p. 106). Annen testified he agreed that a fire truck could outrun its siren. (Annen Depo.,
p. 119). Annen stated he did not have a specific recollection, but as they entered the
intersection, he was probably pressing both the Q (a type of siren) and the air horn
because that is generally what he did. (Annen Depo., p. 116). Daniel Clark, a witness to
the accident, testified in his affidavit that he never heard an air horn when Engine 211
approached or reached the intersection.
{¶58} 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. Anderson II, supra at ¶ 33. Under Civ.R. 56, we review the facts
presented in a light most favorable to the non-moving party to determine whether there
is a genuine issue of material fact that the conduct of Toles and Annen was wanton.
Courts have consistently held that the line between willful, wanton, or reckless
misconduct and ordinary negligence is a fine one, so that the “’the issue of whether
conduct was willful or wanton should be submitted to the jury for consideration in light of
the surrounding circumstances when reasonable minds might differ as to the import of
Stark County, Case No. 2013CA00144 26
the evidence.’” Hunter v. Columbus, 139 Ohio App. 3d 962, 970, 746 N.E.2d 246, 252
(10th Dist.2000); Gilbert v. Cleveland, 8th Dist. Cuyahoga No. 99708, 2013-Ohio-5252.
{¶59} Based on the facts presented in this case, we find there is a genuine issue
of material fact whether the conduct of Toles and Annen on May 6, 2008 was wanton
misconduct. Reasonable minds could come to differing conclusions as to whether Toles
and Annen failed to exercise any care when Engine 211 entered the intersection of
Johnson and Walnut Street. Toles’s and Annen’s alleged violations of local ordinances
and departmental policies as to the operation of an emergency vehicle at an intersection
with limited visibility does not demonstrate wanton misconduct per se, but the alleged
violations are relevant in determining the culpability of a course of conduct and whether
the violations would in all probability result in injury.
{¶60} R.C. 2744.02(B)(1)(b) affords political subdivisions a full defense to liability
for injuries caused by the operation of a fire department vehicle responding to an
emergency if the operation of the vehicle does not constitute willful or wanton
misconduct. We find there is a genuine issue of material fact whether the operation of
Engine 211 demonstrated wanton misconduct, thereby negating the City of Massillon’s
immunity from liability under R.C. 2744.02.
{¶61} Anderson’s sole Cross-Assignment of Error is sustained.
The Liability of Toles and Annen under R.C. 2744.03(A)(6)(b)
{¶62} R.C. 2744.03(A)(6)(b) provides immunity to political subdivision
employees for acts or omissions not committed in a wanton or reckless manner. The
trial court held there was a genuine issue of material fact whether the actions of Toles
and Annen on May 6, 2008 were reckless. Massillon argues in its third Assignment of
Stark County, Case No. 2013CA00144 27
Error the trial court erred in denying summary judgment as to Toles and Annen under
R.C. 2744.03(A)(6)(b). We disagree.
The Meaning of Wanton and Reckless Conduct
{¶63} We defined wanton misconduct under our analysis of R.C.
2744.02(B)(1)(b). As we noted, R.C. 2744.02(B)(1)(b) and R.C. 2744.03(A)(6)(b) are
similar in that the statutes both list “wanton” misconduct as conduct that could cause the
employee or political subdivision to be liable. 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. Anderson II, supra at ¶ 33.
{¶64} The Anderson II court defined reckless misconduct:
Reckless conduct is characterized by the conscious disregard of or
indifference to a known or obvious risk of harm to another that is
unreasonable under the circumstances and is substantially greater than
negligent conduct. Thompson, 53 Ohio St. 3d at 104–105, 559 N.E.2d 705,
adopting 2 Restatement of the Law 2d, Torts, Section 500, at 587 (1965);
see also Black's Law Dictionary 1298–1299 (8th Ed.2004) (explaining that
reckless conduct is characterized by a substantial and unjustifiable risk of
harm to others and a conscious disregard of or indifference to the risk, but
the actor does not desire harm).
Anderson II, supra at ¶ 34.
{¶65} The Restatement of Torts 2d defines “recklessness” as follows: “The
actor's conduct is in reckless disregard of the safety of others if he does an act or
intentionally fails to do an act which it is his duty to the other to do, knowing or having
Stark County, Case No. 2013CA00144 28
reason to know of facts which would lead a reasonable man to realize, not only that his
conduct creates an unreasonable risk of physical harm to another, but also that such
risk is substantially greater than that which is necessary to make his conduct negligent.”
2 Restatement of the Law 2d, Torts, Section 500 at 587 (1965). Comment f to Section
500 contrasts recklessness and intentional misconduct: “While an act to be reckless
must be intended by the actor, the actor does not intend to cause the harm which
results from it.” Id. at 590. Comment a to Section 500 adds that “ * * * the risk must itself
be an unreasonable one under the circumstances.” Id. at 588.
Was the Conduct of Toles and Annen Wanton or Reckless?
{¶66} We found under R.C. 2744.02(B)(1)(b) that reasonable minds could come
to differing conclusions as to whether the conduct of Toles and Annen when entering
the intersection of Walnut and Johnson Street demonstrated wanton misconduct. We
therefore find, under R.C. 2744.03(A)(6)(b), there is likewise a genuine issue of material
fact whether Toles and Annen demonstrated wanton misconduct on May 6, 2008.
{¶67} As to reckless misconduct, Anderson argues the facts that create a
genuine issue of material fact as to wanton misconduct also support a finding there is a
genuine issue of material fact whether the conduct of Toles and Annen when entering
the intersection of Johnson and Walnut Street was reckless. We agree.
{¶68} We consider the totality of the circumstances when determining whether
the conduct of Toles and Annen was reckless. We find that the speed at which Toles
and Annen entered the intersection with at least limited visibility could demonstrate to a
trier of fact there was a conscious disregard of or indifference to a known or obvious risk
Stark County, Case No. 2013CA00144 29
of harm to another that is unreasonable under the circumstances and is substantially
greater than negligent conduct.
{¶69} There are genuine issues of material fact whether the acts or omissions of
Toles and Annen on May 6, 2008 were wanton or reckless under R.C. 2744.03(A)(6)(b)
so as to remove their immunity from suit as political subdivision employees.
{¶70} Massillon’s third Assignment of Error is overruled.
Application of the “Full Defense” to Political Subdivision Employees
{¶71} Massillon argues in its first and second Assignments of Error that the “full
defense” found in R.C. 2744.02(B)(1)(b) should apply to the political subdivision as well
as the employees of the political subdivision. We disagree.
{¶72} R.C. 2744.07(A)(1) states:
[A] political subdivision shall provide for the defense of an employee, in
any state or federal court, in any civil action or proceeding which contains
an allegation for damages for injury, death, or loss to person or property
caused by an act or omission of the employee in connection with a
governmental or proprietary function. The political subdivision has the duty
to defend the employee if the act or omission occurred while the employee
was acting both in good faith and not manifestly outside the scope of
employment or official responsibilities.
{¶73} R.C. 2744.07(A)(2) states:
[A] political subdivision shall indemnify and hold harmless an employee in
the amount of any judgment, other than a judgment for punitive or
exemplary damages, that is obtained against the employee in a state or
Stark County, Case No. 2013CA00144 30
federal court or as a result of a law of a foreign jurisdiction and that is for
damages for injury, death, or loss to person or property caused by an act
or omission in connection with a governmental or proprietary function, if at
the time of the act or omission the employee was acting in good faith and
within the scope of employment or official responsibilities.
{¶74} Massillon argues that because R.C. 2744.07(A)(1) and R.C. 2744.07(A)(2)
require the political subdivision to defend and indemnify the political subdivision
employee, R.C. 2744.03(A)(6)(b) therefore defeats the purpose of the “full defense”
provision of R.C. 2744.02(B)(1).
{¶75} In its summary judgment entry, the trial court considered the argument
presented by Massillon and found it to be unpersuasive. We agree. As the trial court
noted, the Anderson II court considered R.C. 2744.02(B)(1)(b), 2744.03(A)(6)(b),
2744.07(A)(1), and 2744.07(A)(2) in making its decision. Under R.C. 2744.02(B)(1)(b),
the political subdivision is granted a full defense to liability unless the conduct of the
political subdivision employee when operating a motor vehicle is willful or wanton.
Under R.C. 2744.03(A)(6)(b), the political subdivision employee is granted immunity
from suit unless the conduct is wanton or reckless. The Anderson II court held:
In the foregoing statutes, the General Assembly set forth different
degrees of care that impose liability on a political subdivision or on an
employee of a political subdivision. The legislature expressly stated that a
political subdivision has a full defense to liability when the conduct
involved is not willful or wanton, and therefore, if the conduct is only
reckless, the political subdivision has a full defense to liability. In addition,
Stark County, Case No. 2013CA00144 31
the legislature expressly removed immunity from employees of a political
subdivision for wanton or reckless conduct in R.C. 2744.03(A)(6)(b). By
implication, an employee is immune from liability for negligent acts or
omissions.
Anderson II, supra at ¶ 23. Anderson II held that the General Assembly intended
different degrees of care for a political subdivision and its employees. Anderson II,
supra at ¶ 36. By so holding, the Anderson II court interpreted the political subdivision
immunity analysis under R.C. 2744.02(B)(1)(b) to be distinct from the employee
immunity analysis under R.C. 2744.03(A)(6)(b). The Anderson II court considered R.C.
2744.07(A)(2) in its analysis and did not find a conflict between the statutes as to R.C.
2744.02(B)(1)(b) and 2744.03(A)(6)(b). R.C. 2744.07(A)(2) “requires the political
subdivision to indemnify its employee if the employee is liable for a good faith act
related to a governmental or proprietary function. Requiring the subdivision to indemnify
its employee is entirely different from imposing direct liability on the subdivision.” Piro v.
Franklin Twp., 102 Ohio App. 3d 130, 141, 656 N.E.2d 1035, 1042 (9th Dist.1995).
{¶76} Massillon’s first and second Assignments of Error are overruled.
Stark County, Case No. 2013CA00144 32
CONCLUSION
{¶77} Based on the foregoing, we overrule the first, second, and third
Assignments of Error of the Defendants-Appellants/Cross-Appellees City of Massillon,
Susan J. Toles, and Rick H. Annen. We sustain the sole Cross-Assignment of Error of
Plaintiff-Appellee/Cross-Appellant Cynthia Anderson, Administratrix of the Estates of
Ronald E. Anderson and Javarre J. Tate.
{¶78} The judgment of the Stark County Court of Common Pleas is affirmed in
part and reversed and remanded in part for further proceedings consistent with this
opinion and law.
By: Delaney, J.,
Gwin, P.J. and
Hoffman, J., concur.