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Tammy M. Lyons, Individually, Etc., et al. v. Teamhealth Midwest Cleveland

October 27, 2011

TAMMY M. LYONS, INDIVIDUALLY, ETC., ET AL. PLAINTIFFS-APPELLEES
v.
TEAMHEALTH MIDWEST CLEVELAND, ET AL. DEFENDANTS-APPELLANTS



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

The opinion of the court was delivered by: James J. Sweeney, J.

Cite as Lyons v. Teamhealth Midwest Cleveland,

JOURNAL ENTRY AND OPINION

JUDGMENT:

AFFIRMED IN PART, REVERSED IN PART AND REMANDED

BEFORE: Sweeney, J., Blackmon, P.J., and E. Gallagher, 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, 115 Ohio St.3d 77, 2007-Ohio-4839, 873 N.E.2d 878, syllabus.*fn1

{¶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 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.*fn2 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 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. *fn3 Sickelsmith called KLG to provide this 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.*fn4 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 relation to appellee's claims. We address the assignments of error together for ease of discussion.

{ΒΆ17} "I. The lower court erred by denying the Appellant Columbiana County's Motion for Summary Judgment because the County ...


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