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Burlingame v. Estate of Burlingame

Court of Appeals of Ohio, Fifth District

August 5, 2013

GRACE BURLINGAME Plaintiff-Appellant
v.
ESTATE OF DALE BURLINGAME, ET AL Defendants-Appellants And JAMES R. COOMBS, II., ET AL Defendants-Appellees

Civil appeal on remand from the Ohio Surpeme Court, Stark County Court of Common Pleas, Case No.

For Plaintiff-Appellant, James Burlingame, Administrator of Estate of Grace Burlingame, Deceased, ELIZABETH A. BURICK

For Defendant-Appellee Canton City Fire Department, Canton City Hall and James R. Combs, KRISTEN BATES AYLWARD KEVIN L'HOMMEDIEU Canton Law Department City Hall Canton, OH.

For Appellant Eva Finley, Administrator THOMAS LOMBARDI.

For Appellant Eva Finley, Administrator ORVILLE L. REED, III Buckingham, Doolittle & Burroughs, LLP.

JUDGES: Hon. W. Scott Gwin, P.J., Hon. William B. Hoffman, J., Hon. John W. Wise, J.

OPINION

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, 2011-Ohio-1325, ["Burlingame I"] should be modified in light of the Supreme Court's decision in Anderson v. Massillon, 134 Ohio St.3d 380, 2012-Ohio-5711, 983 N.E.2d 266.

{¶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, ...


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