[Cite as Burlingame v. Estate of Burlingame,

.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

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

And

JAMES R. COOMBS, II., ET AL

Defendants-Appellees

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

JUDGMENT: Reversed and Remanded

DATE OF JUDGMENT ENTRY: August 5, 2013 APPEARANCES:

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

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

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

.]

Gwin, P.J.

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

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

2010–CA–00124,

, [“Burlingame I”] should be modified in light of the

Supreme Court’s decision in Anderson v. Massillon,

, 2012-Ohio-

5711,

.

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

Supreme Court.

Facts and Procedural History

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

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

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

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

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

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

vehicle and a Canton City fire truck.

Assignment of Error

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

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

DEFENDANTS/APPELLEES’ MOTION FOR SUMMARY JUDGMENT AS

REASONABLE MINDS COULD CONCLUDE THAT DEFENDANTS/APPELLEES

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

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

I.

{¶6} In Burlingame I, we found that a firefighter's alleged violations of traffic

statutes and departmental policies were factors a jury could consider to determine

whether the officer's conduct was reckless for purposes of overcoming statutory

immunity, and that genuine issues of material fact as to whether firefighter acted

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

from suit.

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

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

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

further held,

Willful misconduct implies an intentional deviation from a clear duty

or from a definite rule of conduct, a deliberate purpose not to discharge

some duty necessary to safety, or purposefully doing wrongful acts with

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

Diamond,

,

(1948), approved and

followed.)

Wanton misconduct is the failure to exercise any care toward those

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

probability that harm will result. (Hawkins v. Ivy,

,

(1977), approved and followed.)

Reckless conduct is characterized by the conscious disregard of or

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

unreasonable under the circumstances and is substantially greater than

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

(1965), adopted.)

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

{¶8} Additionally, the Court reiterated that violation of a statute, ordinance, or

departmental policy enacted for the safety of the public is not per se willful, wanton, or

reckless conduct but may be relevant to determining the culpability of a course of

conduct.

at paragraph five of the syllabus. Nevertheless, “without evidence of an

accompanying knowledge that the violations will ‘in all probability result in injury,’

evidence that policies have been violated demonstrates negligence at best.” (Citations

omitted). Anderson, at ¶38.

{¶9} We find the trial court erred in granting summary judgment. The trial court

must apply the definitions of willful, wanton, and reckless conduct as now defined by the

Ohio Supreme Court in Anderson. Additionally, the trial court erred in the case at bar in

finding violations of internal departmental policies are not relevant to a finding of malice,

bad faith or wanton or reckless manner. The violation of a statute, ordinance, or

departmental policy enacted for the safety of the public is not per se willful, wanton, or

reckless conduct, but may be relevant to determining the culpability of a course of

conduct. Anderson, paragraph five of the syllabus. Stark County, Case No. 2010-CA-00124 & 2010-CA-00130 5

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

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

accordance with the law and consistent with this opinion.

By Gwin, P.J.,

Hoffman, J., and

Wise, J., concur

_________________________________ HON. W. SCOTT GWIN

_________________________________ HON. WILLIAM B. HOFFMAN

_________________________________ HON. JOHN W. WISE WSG:clw 0722 [Cite as Burlingame v. Estate of Burlingame,

.]

IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

FIFTH APPELLATE DISTRICT

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

JAMES R. COOMBS, II., ET AL

Defendants-Appellees

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

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

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

with this opinion. Costs to appellees.

_________________________________ HON. W. SCOTT GWIN

_________________________________ HON. WILLIAM B. HOFFMAN

_________________________________ HON. JOHN W. WISE [Cite as Burlingame v. Estate of Burlingame,

.]

IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

FIFTH APPELLATE DISTRICT

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

And

JAMES R. COOMBS, II., ET AL

Defendants-Appellees

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

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

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

opinion. Costs to appellees.

_________________________________ HON. W. SCOTT GWIN

_________________________________ HON. WILLIAM B. HOFFMAN

_________________________________ HON. JOHN W. WISE