[Cite as Riffle v. Physicians & Surgeons Ambulance Serv.,

.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

ANDREA RIFFLE, et al. C.A. No. 25829

Appellees

v. APPEAL FROM JUDGMENT ENTERED IN THE PHYSICIANS AND SURGEONS COURT OF COMMON PLEAS AMBULANCE SERVICE COUNTY OF SUMMIT, OHIO CASE No. CV-2009-11-8537 Defendant

and

CITY OF AKRON

Appellant

DECISION AND JOURNAL ENTRY

Dated: December 21, 2011

DICKINSON, Judge.

INTRODUCTION

{¶1} Andrea Riffle called 911, reporting that she was in her third trimester of

pregnancy and experiencing serious bleeding. A short time later, several City of Akron

paramedics arrived at her home and took her vital signs. The paramedics did not take the fetus’s

vital signs and, instead of taking Mrs. Riffle immediately to the hospital, called American

Medical Response to take her. American Medical Response arrived a few minutes after

receiving the paramedics’ call and took Mrs. Riffle to the hospital. Doctors diagnosed her fetus

as having fetal bradycardia and performed an emergency cesarean section. The baby died three

days later. 2

{¶2} Mrs. Riffle and her husband, Dan Riffle, sued the City, the paramedics who came

to her house, and American Medical Response for contributing to their daughter’s death. The

City moved for judgment on the pleadings, alleging it is immune under Section 2744.02 of the

Ohio Revised Code. The trial court denied its motion, concluding that, to the extent the Riffles

alleged the City’s paramedics’ conduct was willful and wanton, the City was not entitled to

immunity because, while Section 4765.49(B) of the Ohio Revised Code provides immunity to

governmental entities that provide emergency medical services in a negligent manner, it

specifically excludes from immunity willful or wanton conduct of such governmental entities.

The City has appealed, assigning as error that the trial court incorrectly determined that the

Riffles’ claims against it are not barred by Section 2744.02. We affirm because Section

4765.49(B) more specifically addresses governmental entities that provide emergency medical

services than does Section 2744.02, and, therefore, it, rather than the more general provisions of

Section 2744.02, applies to the alleged facts of this case.

POLITICAL SUBDIVISION IMMUNITY

{¶3} The City’s assignment of error is that the trial court incorrectly denied its motion

for judgment on the pleadings based on sovereign immunity. Specifically, it has argued it has

immunity under Section 2744.02 of the Ohio Revised Code. Under Section 2744.02(A)(1),

“[e]xcept 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.” The provision or nonprovision of

emergency medical services is a governmental function. R.C. 2744.01(C)(2)(a). 3

{¶4} The Riffles have argued that, although Section 2744.02(A)(1) provides a general

blanket of immunity to political subdivisions, there is an exception under Section 2744.02(B)(5)

that applies in this case. Under Section 2744.02(B)(5), “a political subdivision is liable for

injury, death, or loss to person or property [if] civil liability is expressly imposed upon the

political subdivision by a section of the Revised Code, including, but not limited to, sections

2743.02 and 5591.37 of the Revised Code. Civil liability shall not be construed to exist under

another section of the Revised Code merely because that section imposes a responsibility or

mandatory duty upon a political subdivision, because that section provides for a criminal penalty,

because of a general authorization in that section that a political subdivision may sue and be

sued, or because that section uses the term ‘shall’ in a provision pertaining to a political

subdivision.”

{¶5} According to the Riffles, Section 4765.49(B) of the Ohio Revised Code expressly

imposes liability on political subdivisions for willful or wanton misconduct of their employees

who provide emergency medical services. Under Section 4765.49(B), “[a] political subdivision .

. . that provides emergency medical services . . . is not liable in damages in a civil action for

injury, death, or loss to person or property arising out of any actions taken by a first responder,

EMT-basic, EMT-I, or paramedic working under the officer’s or employee’s jurisdiction, . . .

unless the services are provided in a manner that constitutes willful or wanton misconduct.”

{¶6} Section 2744.02(B)(5) provides two examples of statutes that “expressly impose[

]” liability on a political subdivision. The first is Section 2743.02, which provides that “[t]he

state hereby waives its immunity from liability . . . and consents to be sued . . . in the court of

claims created in this chapter[.]” The other is Section 5591.37, which provides that “[n]egligent 4

failure to comply with section 5591.36 of the Revised Code shall render the county liable for all

accidents or damages resulting from that failure.”

{¶7} Section 4765.49 is different from the examples given in Section 2744.02(B)(5).

While the language used in Sections 2743.02 and 5591.37 indicates that the purpose of those

statutes is to establish liability when it would not otherwise exist, the language of Section

4765.49 shows a purpose to create immunity when liability would otherwise exist. Section

4765.49(B) provides that governmental entities, their employees, and entities that contract with

them are “not liable in damages in a civil action for injury, death, or loss to person or property

arising out of any actions taken by a first responder . . . unless the services are provided in a

manner that constitutes willful or wanton misconduct.” Section 4765.49(A) provides the same

immunity from claims of negligence to non-governmental entities and individuals who provide

emergency medical services. There can be no doubt that Section 4765.49’s purpose in regard to

non-governmental actors is to establish immunity for negligent conduct, not establish liability for

willful or wanton misconduct because, in its absence, liability for both negligence and willful or

wanton misconduct would exist.

{¶8} Construing statutes with “unless” or “except” clauses similar to that in Section

4765.49, other districts have determined that the language of such statutes does not “expressly

impose[ ]” liability on a political subdivision under Section 2744.02(B)(5). Svette v. Caplinger,

4th Dist. No. 06CA2910,

(interpreting former version of Section

4931.49(A), which provided that “[t]he state . . . is not liable in damages . . . arising from any act

or omission, except willful or wanton misconduct, in connection with . . . bringing into operation

a 9-1-1 system[.]”); Messer v. Butler County Bd. of Comm’rs, 12th Dist. Nos. CA2008-12-290,

CA2009-01-004,

, at ¶16-19 (interpreting current version of R.C. 4931.49(B)); 5

see also Magda v. Greater Cleveland Reg’l Transit Auth., 8th Dist. No. 92570,

,

at ¶16-21 (interpreting Section 2745.01, which provides that an employer is not liable for

tortious conduct “unless the plaintiff proves that the employer committed the tortious act with the

intent to injure another or with the belief that the injury was substantially certain to occur.”). We

agree with the City that Section 4765.49(B) does not “expressly impose[ ]” civil liability on

political subdivisions under Section 2744.02(B)(5).

{¶9} So we are left with two statutes, both of which appear to apply in this case. One

that appears to provide immunity to governmental entities that provide emergency medical

services for all claims related to those services and one that appears to provide immunity only to

negligence claims related to those services. The Riffles have argued that Section 2744.02(A)(1)

does not apply in this case because it conflicts with Section 4765.49(B). They have argued that,

if two statutes apply to the same set of facts but are in conflict, the more specific statute applies,

which, in this case, is Section 4765.49(B).

{¶10} “It is a well-settled principle of statutory construction that when two statutes, one

general and the other special, cover the same subject matter, the special provision is to be

construed as an exception to the general statute which might otherwise apply.” State ex rel.

Dublin Secs. Inc. v. Ohio Div. of Secs.,

(1994) (following Acme Eng’g

Co. v. Jones,

, paragraph one of the syllabus (1948)). That principle is codified

in Section 1.51 of the Ohio Revised Code, which provides that, “[i]f a general provision conflicts

with a special or local provision, they shall be construed, if possible, so that effect is given to

both. If the conflict between the provisions is irreconcilable, the special or local provision

prevails as an exception to the general provision, unless the general provision is the later 6

adoption and the manifest intent is that the general provision prevails.” State ex rel. Slagle v.

Rogers,

,

, at ¶14.

{¶11} Section 2744.02(A)(1) and Section 4765.49(B) “cover the same subject matter” in

that they both provide immunity to political subdivisions that provide emergency medical

services. Section 4765.49(B) contains an exception for services that “are provided in a manner

that constitutes willful or wanton misconduct.” Section 2744.02(A)(1) does not have a similar

exception. The two sections, therefore, conflict because the application of Section

2744.02(A)(1)’s broad language would render the willful or wanton misconduct exception in

Section 4765.49(B) meaningless to the extent it applies to political subdivisions.

{¶12} The City has argued that Section 4765.49(B)’s willful or wanton misconduct

exception is not meaningless because, unlike Section 2744.02(A)(1), Section 4765.49(B) also

applies to private organizations that enter into contracts with political subdivisions to provide

emergency medical services. See Bostic v. City of Cleveland, 8th Dist. No. 79336,

at *2 (Jan. 31, 2002) (suggesting that Section 4765.49(B)’s “apparent purpose is, inter

alia, to ensure the same level of immunity for [government] contractors and their employees as is

granted to direct government employees and political subdivisions performing the same

functions.”). Just because there are circumstances under which Section 4765.49(B) applies and

Section 2744.02(A)(1) does not, however, does not mean they do not “cover the same subject

matter” regarding the immunity of a political subdivision that provides emergency medical

services. Applying Section 2744.02(A)(1) to the facts of this case would render Section

4765.49(B), to the extent it applies to political subdivisions, meaningless.

{¶13} Under Section 1.51, the first step in resolving a conflict is to determine whether

the provisions at issue are general, special, or local. State v. Chippendale,

, 7

120 (1990). Section 2744.02(A)(1) is a general immunity statute, bestowing immunity on all the

governmental functions of a political subdivision. Swanson v. City of Columbus,

(1993) (“[Section] 2744.02(A) confers blanket immunity upon political subdivisions

with respect to all governmental functions[.]”); R.C. 2744.01(C)(2)(a). Section 4765.49(B) is a

special provision specifically addressing the immunity of “[a] political subdivision, joint

ambulance district, joint emergency medical services district, or other public agency, and any

officer or employee of a public agency or of a private organization operating under contract or in

joint agreement with one or more political subdivisions, that provides emergency medical

services, or that enters into a joint agreement or a contract . . . for the provision of emergency

medical services[.]”

{¶14} “[If] two statutes, one general and the other specific, involve the same subject

matter, [Section] 1.51 must be applied.” State ex rel. Dublin Secs. Inc. v. Ohio Div. of Secs.,

(1994). Under Section 1.51, the two sections are to be reconciled as much

as possible, but if a conflict exists, “the special . . . provision prevails . . . unless the general

provision is the later adoption and the manifest intent is that the general provision prevail.” See

Dublin Secs.,

(quoting R.C. 1.51).

{¶15} The General Assembly first enacted a specific immunity statute regarding

emergency medical personnel in 1976 at Section 4731.90 of the Ohio Revised Code. It was later

moved to Section 3303.21, then to Section 4765.49, and was last amended in April 2007.

Section 2744.02 was enacted in 1985 and was last amended in September 2007. Accordingly,

Section 2744.02 was both enacted after and has been more recently amended than Section

4765.49. 8

{¶16} Under Section 1.51, however, “[a] later general provision . . . shall control over

the special provision . . . only if . . . the ‘manifest intent’ of the General Assembly is that the

general provision shall prevail.” State ex rel. Dublin Secs. Inc. v. Ohio Div. of Secs.,

(1994) (quoting Cincinnati v. Thomas Soft Ice Cream Inc.,

(1977)); see also State v. Chippendale,

(1990) (“[If] a general and a

special provision cover the same conduct, the legislature may expressly mandate that such

provisions are to run coextensively.”). There is nothing in Section 2744.02 that expresses an

intention by the General Assembly for that section to prevail over a specific section regarding the

immunity of political subdivisions that provide emergency medical services. See State ex rel.

Slagle v. Rogers,

,

, at ¶15 (concluding Section 2301.24

applied instead of Section 149.43 because, even though Section 149.43 was enacted more

recently, the legislature did not express its intent that Section 149.43, a general statute, should

prevail over more specific statutes regarding copying costs); State v. Conyers,

(1999) (resolving conflict between Section 2921.01(E) and Section 2967.15(C)(2)).

{¶17} We conclude that, in cases involving alleged willful or wanton misconduct by a

first responder, EMT-basic, EMT-I, or paramedic working for a political subdivision, Section

4765.49(B) applies instead of Section 2744.02(A)(1). This conclusion is consistent with the

conclusions reached by the other districts that have considered this issue. Blair v. Columbus Div.

of Fire, 10th Dist. No. 10AP-575,

, at ¶28; Johnson v. City of Cleveland,

,

; Fuson v. City of Cincinnati,

(1993). The trial court correctly denied the City’s motion for judgment on the pleadings.

The City’s assignment of error is overruled. 9

CONCLUSION

{¶18} The trial court correctly determined that Section 4765.49(B) governs whether the

City has immunity regarding the Riffles’ claims. The judgment of the Summit County Common

Pleas Court is affirmed.

Judgment affirmed.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellant.

CLAIR E. DICKINSON FOR THE COURT

CARR, P. J. MOORE, J. CONCUR 10

APPEARANCES:

JOHN CHRISTOPHER REECE and MICHAEL J. DEFIBAUGH, Attorneys at Law, for Defendant.

AMY RULEY COMBS, Attorney at Law, for Appellees.