[Cite as Lyons v. Teamhealth Midwest Cleveland,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 96336

TAMMY M. LYONS, INDIVIDUALLY, ETC., ET AL. PLAINTIFFS-APPELLEES

vs.

TEAMHEALTH MIDWEST CLEVELAND, ET AL. DEFENDANTS-APPELLANTS

JUDGMENT: AFFIRMED IN PART, REVERSED IN PART AND REMANDED

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-725903

BEFORE: Sweeney, J., Blackmon, P.J., and E. Gallagher, J. RELEASED AND JOURNALIZED: October 27, 2011

ATTORNEYS FOR APPELLANTS

John T. McLandrich, Esq. Frank H. Scialdone, Esq. Mazanec, Raskin & Ryder Co., L.P.A. 100 Franklin’s Row 34305 Solon Road Solon, Ohio 44139

ATTORNEYS FOR APPELLEES

James M. Kelley, III, Esq. Elk & Elk Co., L.P.A. 6110 Parkland Blvd. Mayfield Heights, Ohio 44124

Paul W. Flowers, Esq. Terminal Tower, 35th Floor 50 Public Square Cleveland, Ohio 44113

Jonathan W. Philipp, Esq. 5005 Rockside Road, Suite 600 Independence, Ohio 44131

Christopher J. Baronzzi, Esq. Shirley J. Christian, Esq. Harrington, Hoppe & Mitchell, Ltd. 2235 E. Pershing Street, Suite A Salem, Ohio 44460

Stacy A. Ragon Delgros, Esq. Roetzel & Andress, L.P.A. 222 South Main Street Akron, Ohio 44308

(Continued)

(Continued) Dirk E. Riemenschneider, Esq. Timothy A. Spirko, Esq. Buckingham, Doolittle & Burroughs 1375 East Ninth Street, Suite 1700 Cleveland, Ohio 44114

JAMES J. SWEENEY, J.:

{¶ 1} Defendants-appellants, Columbiana County, Matthew Jones (“Jones”), and

Crystal Sickelsmith (“Sickelsmith”), appeal the trial court’s denial of their motion for

summary judgment seeking dismissal of plaintiff’s-appellee’s, Tammy M. Lyons, claims

against them pursuant to the immunity conferred by R.C. Chapter 2744. An order that

denies a political subdivision immunity under R.C. Chapter 2744 is a final, appealable

order. R.C. 2744.02(C); Hubbell v. Xenia,

,

,

, syllabus.1

{¶ 2} For the reasons that follow, we affirm in part and reverse in part and

remand for further proceedings. For purposes of summary judgment, we must construe

the facts in the light most favorable to the non-moving party, appellee.

{¶ 3} On November 14, 2008, eight year old Tyler J. Miller (“decedent”) died

after suffering breathing problems and a fever that led to cardiac arrest. Appellee Lyons

The trial court’s denial of defendant KLG Mobile Intensive Co., LLC’s 1

motion for summary judgment did not constitute a final, appealable order and is not at issue in this appeal. is his mother. Lyons and decedent were living in an apartment in Lisbon, Ohio. On the

evening of November 13, 2008, decedent was sleeping in Lyons’s bed due to an on-going

illness. At 5:16 a.m. on November 14, 2008, Lyons called for help using her cellular

phone. Defendant Jones, a dispatcher employed by the Columbiana County Sheriff’s

department, received the call on the non-emergency line.2 At that time Jones had been

working as a dispatcher for about two months. His training involved reviewing the

policy manual but most of it was hands on, watching the other dispatchers. Jones said he

received most of his training from defendant Sickelsmith who was on the calls with him

the first few weeks.

{¶ 4} Both Jones and Sickelsmith testified that their job duties included taking

emergency medical calls. Both confirmed that a primary function of the job was to

gather information, one of the critical pieces of information being the address of the

emergency. Jones testified he was trained to obtain the city as part of the address and if

someone did not tell him the city, it would be his job to ask for it.

{¶ 5} Lyons requested ambulance service to her residence. Jones obtained the

address of 6181 Allen Drive and was told it was off Lisbon-Canfield Road. Jones

testified that he grew up in Columbiana County but was not familiar with the streets in

Lisbon. Columbiana County did not have an ambulance service and contracted with

private companies, including defendant KLG, to respond to emergency calls in the

Although the department had an enhanced 911 system, the dispatchers 2

stated that it automatically plotted only calls that came in through land lines. jurisdiction. Jones said it was his choice which of two ambulance services to contact to

respond to Lyons’s call. He decided to contact KLG. According to Jones, he was not

able to directly connect Lyons to KLG and thought it would be faster if he just relayed the

information to KLG himself. Jones called KLG within a minute. He provided the KLG

dispatcher with the correct house number and street address, he provided the cross roads

of Lisbon-Canfield Road, and he provided Lyons’s callback number. KLG had squads

located in Lisbon and Salem. Jones did not recall if the KLG dispatcher asked him, but

he did advise her that he thought the Allen Drive address was closer to Perry Township.

{¶ 6} Cara Fidoe (“Fidoe”) was the KLG dispatcher who received Jones’s call

regarding the Lyons’ emergency. Based on Jones’s advice that he thought the address was

closer to Perry, Fidoe dispatched the Salem squad rather than the Lisbon squad. Without

dispute, the Lisbon squad was closer to Lyons’s residence. The KLG transcripts provide

the following exchange between Jones and Fidoe:

{¶ 7} “KLG: That’s 6181 Allen Drive. And that’s Lisbon?

{¶ 8} “Sheriff’s office: It’s off of Lisbon/Canfield Road. I guess it’s closer to

Perry Township.”

{¶ 9} “KLG: So Salem. Off of Lisbon/Canfield you said?

{¶ 10} “Sheriff’s office: Yeah.

{¶ 11} “KLG: And do you have a callback number?

{¶ 12} “Sheriff’s office: Yeah. [Phone number is provided].” {¶ 13} Fidoe testified that if Jones had said he did not know where the address was

located, she would have diligently found out before dispatching a squad. Jones

acknowledged that he “kind of” knew that his comment about where he thought the

address was located would be used by KLG to determine which squad was going to be

dispatched. Complicating matters further, there is, in fact, an Allen Drive located in

Perry Township, which is where the squad went. The squad was unable to find the correct

house number on the Allen Drive located in Perry Township. When the squad called for

clarification, Fidoe was asked if the Sheriff’s office gave the address to her as Perry

Township, to which she first responded “Hm-hmm.” Then she explained, “I said, ‘Is that

Salem or Lisbon?’ And he [Jones] said, Perry Township — no. He [Jones] said, ‘I think

it’s closer to Perry Township.’”

{¶ 14} All of the dispatchers testified that you should not guess at any information

being used to respond in an emergency situation.

{¶ 15} Sickelsmith became involved when she placed a separate call to KLG

regarding another medical emergency on McSwiggen Road. During that call, she

overheard KLG’s Salem squad in the background struggling to locate the Allen Drive

address. Sickelsmith took it upon herself to look it up on the paper map in her office and

discovered that it was in Lisbon, Ohio. 3 Sickelsmith called KLG to provide this

Incidentally, the paper map designated the street as being Allen Avenue, 3

which the record indicates is not correct. Jones said the map was created by the Columbiana County Engineer’s office. information at 5:31 a.m. In the meantime, she tried to find other first responders in the

Lisbon area without success. Around the same time, Fidoe’s supervisor called her cell

phone and advised her that there was an Allen Drive in Lisbon, Ohio.4 Fidoe said she

typically used Google maps to locate addresses but could not recall what she did in

response to this emergency.

{¶ 16} By the time Fidoe was informed that 6181 Allen Drive was in Lisbon, she

had already dispatched the Lisbon squad to McSwiggen Road and believed she could not

re-route them. At 5:34 a.m. decedent’s father called the Sheriff’s department again to

advise that the child was not breathing and they were doing CPR. Jones did not seek any

clarification of the Lyons’ address when decedent’s father had called. Sickelsmith called

KLG to update them on the child’s condition at 5:35 a.m. KLG never used the call back

number to find out the city where the Lyons’ residence was located. At 5:37 a.m.,

Sickelsmith made another call. Jones stated that despite their efforts, neither he nor

Sickelsmith were able to obtain an estimated time of arrival of the ambulance from KLG.

Decedent’s father called again at 5:41 a.m. Sickelsmith contacted the family again at

5:43 a.m. and remained on the line until the ambulance arrived. The child died and

appellee commenced this wrongful death action against numerous parties. The only issue

before us in this appeal is whether the trial court erred by denying Jones, Sickelsmith, and

Columbiana County’s motion for summary judgment that asserted statutory immunity in

4 The supervisor heard the confusion on a radio at her home. relation to appellee’s claims. We address the assignments of error together for ease of

discussion.

{¶ 17} “I. The lower court erred by denying the Appellant Columbiana County’s

Motion for Summary Judgment because the County is immune under R.C. 2744.02(A).”

{¶ 18} “II. The lower court erred by denying the Appellant Columbiana County’s

Motion for Summary Judgment because the County is immune under R.C. 2744.03(A)(3)

and (5).”

{¶ 19} “III. The lower court erred by denying the Appellant Crystal Sickelsmith’s

Motion for Summary Judgment because she is immune under R.C. 2744.03(A)(6)(b).

{¶ 20} “IV. The lower court erred by denying the Appellant Mathew Jones’ Motion

for Summary Judgment because he is immune under R.C. 2744.03(A)(6)(b).”

{¶ 21} “A court of appeals must exercise jurisdiction over an appeal of a trial

court’s decision overruling a Civ.R. 56(C) motion for summary judgment in which a

political subdivision or its employee seeks immunity.” Hubbell,

, ¶21.

We review a summary judgment decision de novo and must construe the facts in a light

most favorable to the non-moving party, which, in this case, would be the appellees.

Civ.R. 56.

{¶ 22} The three-tier analysis that governs the application of sovereign immunity

to a political subdivision pursuant to Chapter 2744 of the Ohio Revised Code, is set forth

in Cramer v. Auglaize Acres,

,

,

, quoting Colbert v. Cleveland,

,

,

, ¶7-9:

{¶ 23} “Determining whether a political subdivision is immune from tort liability

pursuant to R.C. Chapter 2744 involves a three-tiered analysis. The first tier is the general

rule that a political subdivision is immune from liability incurred in performing either a

governmental function or proprietary function. R.C. 2744.02(A)(1). However, that

immunity is not absolute. R.C. 2744.02(B) * * *.

{¶ 24} “The second tier of the analysis requires a court to determine whether any

of the five exceptions to immunity listed in R.C. 2744.02(B) apply to expose the political

subdivision to liability. * * *

{¶ 25} “If any of the exceptions to immunity in R.C. 2744.02(B) do apply and no

defense in that section protects the political subdivision from liability, then the third tier

of the analysis requires a court to determine whether any of the defenses in R.C. 2744.03

apply, thereby providing the political subdivision a defense against liability.” (Internal

citations omitted.)

{¶ 26} “For the individual employees of political subdivisions, the analysis of

immunity differs. Instead of the three-tiered analysis * * *, R.C. 2744.03(A)(6) states that

an employee is immune from liability unless the employee’s actions or omissions are

manifestly outside the scope of employment or the employee’s official responsibilities,

the employee’s acts or omissions were malicious, in bad faith, or wanton or reckless, or liability is expressly imposed upon the employee by a section of the Revised Code.”

Cramer v. Auglaize Acres,

.

{¶ 27} Columbiana County is a political subdivision and both Jones and

Sickelsmith were employed as dispatchers in the Sheriff’s department on November 14,

2008 when Tyler J. Miller suffered respiratory failure and died while awaiting an

ambulance transport to the hospital.

{¶ 28} The first point of contention is whether the County’s act of providing

dispatch services in response to calls of medical emergencies involves a governmental or

proprietary function. The County asserts it is a governmental function and appellee

maintains it is a proprietary function.

{¶ 29} R.C. 2744.02(A)(1) provides:

{¶ 30} “For the purposes of this chapter, the functions of political subdivisions are

hereby classified as governmental functions and proprietary functions. 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.” (Emphasis added.)

{¶ 31} Appellee relies on the exception set forth in R.C. 2744.02(B)(2) to support

her contention that the trial court properly denied Columbiana County’s motion for

summary judgment. That exception provides: {¶ 32} “Except as otherwise provided in sections 3314.07 and 3746.24 of the

Revised Code, political subdivisions are liable for injury, death, or loss to person or

property caused by the negligent performance of acts by their employees with respect to

proprietary functions of the political subdivisions.”

{¶ 33} The exception upon which appellee relies pertains only to the performance

of proprietary functions and does not apply to the performance of governmental functions.

{¶ 34} In urging us to conclude that the County’s provision of dispatch services

was a proprietary function, appellee suggests that appellants were doing nothing more

than forwarding emergency calls to a private ambulance service. She cites to Greene

Cty. Agr. Soc. v. Liming,

,

,

, and

maintains that the analysis depends on whether the particular activity engaged in is the

type customarily performed by non-governmental persons. If so, appellee maintains it

should deemed a proprietary function. In Greene, the court distinguished the act of

holding a county fair (which is a governmental function) from conducting a livestock

competition at the fair, which it found had “nothing inherently governmental” about it.

{¶ 35} Appellee frames the function at issue in this case as being one of “relaying

* * * Plaintiff’s request for immediate medical assistance to the private ambulance

company.” And, appellee believes the County’s provision of dispatch services should be

carved out of the established governmental function that includes “the provision or

non-provision of police, fire, emergency medical, ambulance, and rescue services or protection” because the County contracted with a private entity to provide the actual

transportation service.

{¶ 36} Appellee argues this interpretation is supported by the fact that dispatching

services are not specifically designated in the itemized list of governmental functions set

forth in R.C. 2744.01(C)(2). In response, the County argues that its provision of dispatch

services is a governmental function pursuant to both R.C. 2744.01(C)(1)(a)-(c) and R.C.

2744.01(C)(2)(a). As such it contends that there is no exception to its immunity pursuant

to R.C. 2744.02(A) & (B).

{¶ 37} R.C. 2744.01(C)(1) provides:

{¶ 38} “(C)(1) ‘Governmental function’ means a function of a political subdivision

that is specified in division (C)(2) of this section or that satisfies any of the following:

{¶ 39} “(a) A function that is imposed upon the state as an obligation of

sovereignty and that is performed by a political subdivision voluntarily or pursuant to

legislative requirement;

{¶ 40} “(b) A function that is for the common good of all citizens of the state;

{¶ 41} “(c) A function that promotes or preserves the public peace, health, safety,

or welfare; that involves activities that are not engaged in or not customarily engaged in

by nongovernmental persons; and that is not specified in division (G)(2) of this section as

a proprietary function.” (Emphasis added.)

{¶ 42} According to the express terms of the statute, conduct can constitute a

governmental function despite the fact that it is not specifically enumerated in R.C. 2744.01(C)(2). The provision of dispatch services clearly is a function that is for the

common good of all citizens of the state and it further satisfies the conditions described in

R.C. 2744.01(C)(1)(c).

{¶ 43} While dispatching services is not explicitly designated as either a

proprietary or governmental function, R.C. 2744.01(C)(2)(a) provides that a

governmental function includes, but is not limited to, the following:

{¶ 44} “(a) The provision or nonprovision of police, fire, emergency medical,

ambulance, and rescue services or protection.”

{¶ 45} It is undisputed that if the County provided its own ambulance service, the

dispatcher’s involvement in facilitating that service would be considered a governmental

function. In this case, however, we are examining a situation where the County has

contracted with private entities to provide ambulance services that will incidentally profit

from the provision of ambulance services in the jurisdiction. Our analysis focuses on

whether the County can maintain their statutory immunity for retaining limited

involvement in communicating the calls for emergency help to the private entity through

the provision of dispatch services.

{¶ 46} This court has previously held that “R.C. 2744.01(C) does not exclude from

the definition of governmental functions those functions sometimes performed by private

entities for political subdivisions. In fact, many of the specifically enumerated

governmental functions set forth in R.C. 2744.01(C)(1) are commonly performed by

private entities for political subdivisions, including, but not limited to, ambulance services, ***. Where a service is specifically defined as a governmental function, what

entity actually performs them or a part of them on behalf of a political subdivision has no

bearing on their status as governmental pursuant to R.C. 2744.01(C)(1).” McCloud v.

Nimmer (1991),

,

, emphasis added.

{¶ 47} The Columbiana County Sheriff Department’s dispatch service, which

aids in responding to emergency medical calls, is an integral part of the provision or

nonprovision of police, fire, emergency medical, ambulance and rescue services or

protection that is a clearly delineated governmental function. R.C. 2744.01(C)(2)(a); see,

also, R.C. 2744.01(C)(1)(a)-(c). Under the existing precedent in this district, the fact that

the County contracted with private companies to provide the ambulance transportation

does not transform its involvement in dispatching those services into a proprietary

function. The County Sheriff’s provision of dispatch services is not something that is

typically or customarily performed by non-governmental entities.

{¶ 48} The first tier of the analysis is satisfied.

{¶ 49} Because the County dispatchers were performing a governmental function

and the sole exception to immunity under R.C. 2744.02(B) upon which appellee relies

involves the performance of a proprietary function, appellee has not satisfied the second

tier of the immunity analysis. The first assignment of error is sustained, which renders

the second assignment of error moot.

{¶ 50} In the remaining assignments of error, appellants contend that the trial court

erred by denying Jones and Sickelsmith summary judgment. Jones and Sickelsmith contend they were also immune from liability. Appellant maintains the trial court

correctly denied the county employees’ motions for summary judgment because, she

asserts, there remained genuine issues of material fact as to whether Jones and

Sickelsmith should be held liable for reckless or wanton conduct pursuant to R.C.

2744.03(A)(6), which provides:

{¶ 51} “(A) In a civil action brought against a political subdivision or an employee

of a political subdivision to recover damages for injury, death, or loss to person or

property allegedly caused by any act or omission in connection with a governmental or

proprietary function, the following defenses or immunities may be asserted to establish

nonliability:

{¶ 52} “* * *

{¶ 53} “(6) In addition to any immunity or defense referred to in division (A)(7) of

this section and in circumstances not covered by that division or sections 3314.07 and

3746.24 of the Revised Code, the employee is immune from liability unless one of the

following applies:

{¶ 54} “***

{¶ 55} “(b) The employee’s acts or omissions were with malicious purpose, in bad

faith, or in a wanton or reckless manner.”

{¶ 56} Although the law provides that political subdivision employees may be sued

individually as set forth above, the political subdivision remains obligated to indemnify

and defend its employees pursuant to the terms of R.C. 2744.07. {¶ 57} Appellant does not contend that either Jones or Sickelsmith acted with

malicious purpose or in bad faith, and the evidence establishes as a matter of law that they

did not. The issue is whether Jones or Sickelsmith or both engaged in reckless or wanton

conduct under the factual scenario that has been developed in this case.

{¶ 58} In O’Toole v. Denihan,

,

,

, the Ohio Supreme Court addressed what constitutes reckless conduct for purposes of

statutory political subdivision immunity:

{¶ 59} “[A]n 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 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.’ * * * Distilled to its essense, and in the context of R.C.

2744.03(A)(6)(b), recklessness is a perverse disregard of a known risk.” Id. at ¶73.

{¶ 60} “Recklessness, therefore, necessarily requires something more than mere

negligence. * * * In fact, ‘the actor must be conscious that his conduct will in all

probability result in injury.’” “Id. at ¶74; see, also, Rankin v. Cuyahoga Cty. Dept. of

Children & Family Servs.,

,

, ¶37. Unless the

individual’s conduct does not demonstrate a disposition to perversity as a matter of law,

the determination of recklessness is within the province of the jury. O’Toole,

, ¶75. {¶ 61} “ ‘Wanton conduct’ involves failure to exercise any care whatsoever toward

those to whom he owes a duty of care, and his failure occurs under circumstances in

which there is great probability that harm will result.” Gladon v. Greater Cleveland

Regional Transit Auth. (1996),

,

,

.

The term “implies intent relating to misconduct rather than relating to result, so that intent

to injure need not be shown.” Brockman v. Bell (1992),

,

.

{¶ 62} “In contrast, ‘willful misconduct’ involves a more positive mental state

prompting the injurious act than wanton misconduct, but the intention relates to the

misconduct, not the result.

Consequently, ‘willful misconduct’ is defined as: ‘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 purposely doing some

wrongful acts with knowledge or appreciation of the likelihood of resulting injury.’”

Fogle v. Village of Bentleyville, Cuyahoga App. No. 88375,

,

quoting Whitfield v. Dayton,

,

,

,

quoting

{¶ 63} Construing the evidence in a light most favorable to appellee, there is no

evidence from which a reasonable mind could conclude that Sickelsmith’s actions were

either wanton or reckless. Appellee asserts that “questions exist * * * as to whether

[Sickelsmith] did all she could to alert KLG of the Plaintiff’s true location and ensure that

the closest available ambulance was immediately dispatched.” Appellee also asserts that Sickelsmith should be “faulted for allowing an untrained, novice co-worker to field such

a critical emergency call.” The question is not whether Sickelsmith was negligent. The

appropriate inquiry is whether she was wanton or reckless in this instance and we find, as

a matter of law, that she was not. All of the evidence in the record establishes that

Sickelsmith acted dilgently towards getting KLG to the proper address as soon as

possible. As for the allegation that Sickelsmith was negligent for “allowing” Jones to

field critical emergency calls, Jones was employed by the Sheriff’s department as a

dispatcher. That was his job. There is no evidence that Sickelsmith had the authority or

discretion to prevent Jones from doing it. Further, Appellee’s call came in through the

non-emergency lines; there is no way Sickelsmith could have known the nature of

Lyons’s call as it came in such that she could have intercepted it from Jones. There is no

evidence from which reasonable minds could conclude that Sickelsmith was either

wanton or reckless, and, therefore, she was entitled to summary judgment on the basis of

immunity. The third assignment of error is sustained.

{¶ 64} However, reasonable minds could reach differing conclusions as to whether

Jones’s acts or omissions qualified as being reckless. Jones said he was trained to get the

address of the emergency that included the city. Jones admittedly did not obtain the city

from the caller. When the KLG dispatcher inquired if it was located in Lisbon, Jones said,

“[i]t’s off of Lisbon/Canfield Road. I guess it’s closer to Perry Township.” Although that

was the proper cross road (which according to the record is located in Lisbon) and Jones

did provide KLG with the correct call back number for appellee, his guess that it was closer to Perry Township was wrong. All of the dispatchers testified that they should not

guess at information. KLG had squads located in two areas: Salem and Lisbon. Jones said

he “kind of” knew that the location of the emergency would determine which squad was

dispatched. KLG’s dispatcher said she felt confident that Jones “was confident in what

he was telling [her]” and dispatched the Salem squad instead of the Lisbon squad.

Whether that was reasonable, negligent, reckless, and/or whether it contributed to or

superceded any act or omission by Jones, are not questions that are before us here. This

convergence of circumstances led to the dispatch of an ambulance squad that could not

readily locate the address; because it was not closer to Perry but was, in fact, in Lisbon.

Tragically, the child suffered cardiac arrest while awaiting ambulance transport and died.

KLG’s dispatcher testified that if Jones had said he did not know the city where the

address was located she would have “diligently found out.” There is a question of fact as

to whether Matthew Jones was reckless or not. The fourth assignment of error is

overruled.

Judgment affirmed in part and reversed in part.

It is ordered that appellees and appellants split the costs herein taxed.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the 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. JAMES J. SWEENEY, JUDGE

PATRICIA ANN BLACKMON, P.J., and EILEEN A. GALLAGHER, J., CONCUR