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Folmer v. Meigs County Commissioners

Court of Appeals of Ohio, Fourth District, Meigs

January 2, 2018

MICHELLE D. FOLMER, Plaintiff-Appellee,
v.
MEIGS COUNTY COMMISSIONERS, et al., Defendants-Appellants.

          Mark Landes and Aaron M. Glasgow, Isaac Wiles Burkholder & Teetor, LLC, for defendants-appellants.

          Travis Mohler, Colombo Law, Columbus, Ohio, for plaintiff-appellee.

          DECISION AND JUDGMENT ENTRY

          Marie Hoover, Judge.

         {¶ 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)[1]; 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.

         I. 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 his sedan.

         {¶ 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 of him.

         {¶ 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 ...

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