MICHELLE D. FOLMER, Plaintiff-Appellee,
MEIGS COUNTY COMMISSIONERS, et al., Defendants-Appellants.
Landes and Aaron M. Glasgow, Isaac Wiles Burkholder &
Teetor, LLC, for defendants-appellants.
Mohler, Colombo Law, Columbus, Ohio, for plaintiff-appellee.
DECISION AND JUDGMENT ENTRY
1} Defendants-appellants, Meigs County
Commissioners, Meigs County Emergency Medical Services
("Meigs County EMS"), and Alfred Wayne Lyons
("Lyons") (collectively "Appellants")
appeal the judgment of the Meigs County Court of Common
Pleas. Plaintiff-appellee, Michelle D. Folmer
("Folmer"), had filed a personal injury action and
a motion for summary judgment against the Appellants. In
response, Appellants filed a motion contra to Folmer's
motion. Appellants also filed its own motion for summary
judgment. The trial court denied Folmer's motion. As for
Appellant's motion for summary judgment, the trial court
granted the motion in part and denied the motion in part.
2} On appeal, Appellants claim that the trial court
erred in finding that a genuine issue of material fact exists
regarding whether Lyons acted (1) in a wanton and willful
manner under R.C. 2744.02(B)(1)(a); and (2) with malicious
purpose, in bad faith, or in a wanton or reckless manner
under R.C. 2744.03(A)(6)(b).
3} Upon review of the record, we conclude that the
trial court did not err in concluding that genuine issues of
material fact existed regarding whether Lyons acted in a
wanton and willful manner under R.C. 2744.02(B)(1)(c) and a
wanton manner under R.C. 2744.03(A)(6)(b); but it did err in
concluding that genuine issues of material fact existed
regarding whether Lyons acted with malicious purpose, bad
faith, or recklessness under R.C. 2744.03(A)(6)(b).
4} Accordingly, we affirm in part and reverse in
part the judgment of the trial court.
Facts and Procedural History
5} On the evening of March 23, 2013, Meigs County
EMS received a 911 call from an urgent care facility, the
Holzer Clinic, in Pomeroy, Ohio. The urgent care facility had
requested that an ambulance transport a patient to the Holzer
Medical Center in Gallipolis, Ohio. Supposedly, the patient
was experiencing a medical emergency. A Meigs County EMS
ambulance, driven by Lyons, responded to the facility, with
its lights and sirens activated. Teresa Johnson
("Johnson") accompanied Lyons.
6} Upon arriving at the clinic, Lyons and Johnson
spoke with the staff about the patient's condition; and
within five minutes, the patient was loaded in the back of
the ambulance with Johnson. Lyons and Johnson determined that
the patient was not in critical condition; therefore, Lyons
drove to the Holzer Medical Center without the
ambulance's lights and sirens activated.
7} While traveling southbound on State Route 7 in
the Village of Cheshire, Lyons veered left of center and hit
a sedan traveling in the opposite direction. The sedan spun
around due to the force of the collision. The sedan then hit
Folmer's vehicle which was traveling behind the sedan.
Folmer sustained several injuries as a result of the
collision, including a torn rotator cuff and multiple
protruding and bulging discs in her spine.
8} Folmer later filed a complaint alleging that (1)
Lyons negligently and/or willfully and wantonly operated the
ambulance; and (2) Meigs County EMS and Meigs County
Commissioners were liable for Lyons's actions. Appellants
denied the allegations and asserted immunities and defenses
under R.C. 2744.02 and 2744.03.
9} Following discovery, Folmer moved for summary
judgment, arguing that Lyons's conduct was willful,
wanton, and reckless. Several pieces of evidence were
attached to her motion, including her deposition testimony,
the deposition testimony of Lyons, and the deposition
testimony of the driver of the sedan, Charles Kearns.
10} At his deposition, Lyons testified that just
before the collision, the two vehicles in front of him were
playing a "brake check" game, erratically slowing
down and speeding up. However, Lyons did not report any such
"brake check" game to the highway patrol when asked
how the collision occurred. Lyons could not recall the
specific moments before the collision, saying he "just
lost everything" and "blacked out." However,
Meigs County EMS did not have a record of Lyons reporting a
black-out episode. According to Lyons, when he "got
[his] senses back", Kearns's vehicle "was
there", and he was completely in the northbound lane of
travel. He explicitly denied that he was attempting to pass
at the time of the collision.
11} Folmer and Kearns recalled a different version
of events. At her deposition, Folmer testified that she had
just proceeded through an intersection with a flashing yellow
light when she observed Lyons attempting to pass the car in
front of him. In doing so, Lyons came into the northbound
lane and collided with Kearns's sedan.
12} At his deposition, Kearns testified that just
before the collision, Lyons accelerated and drove completely
into the northbound lane in an attempt to pass the vehicle in
front of him. According to him, after passing the vehicle-but
before crossing back over into the southbound lane-Lyons hit
13} Folmer also attached an accident-reconstruction
expert's report to her motion for summary judgment. The
expert opined that, at the time of the collision, Lyons was
approaching an intersection and was traveling at a minimum
speed of 55-58 m.p.h. The expert also remarked that
Lyons's movement of the ambulance from the southbound
lane to the northbound lane was not a gradual movement.
Rather, Lyons made an abrupt lane change in an attempt to
pass the vehicle in front of him; or Lyons swerved to the
left to avoid a rear end collision with the vehicle in front
14} Appellants responded with a memorandum in
opposition to Folmer's motion for summary judgment as
well as their own motion for summary judgment. Appellants
argued, inter alia, that they were immune from liability
because Lyons was on an emergency call at the time of the
collision; and Lyons's driving did not constitute willful
or wanton misconduct. Appellants' filings included copies
of Johnson's affidavit, which indicated that the
ambulance did not accelerate or noticeably swerve into the
northbound lane prior to the collision, as one would do in an
attempt to pass.
15} Importantly, the portion of State Route 7 where
the collision occurred is a two-lane road with one lane of
traffic going in each direction. The posted speed limit is 35
m.p.h.; and solid double yellow lines indicate that the
roadway is a no-passing zone.
16} On October 18, 2015, the trial court issued its
judgment on the competing motions for summary judgment. The
trial court ordered as follows:
1. That [Folmer's] motion for summary judgment is denied.
2. That part of [Appellants'] motion for summary judgment
is granted because Defendant Lyons was on an emergency call