Court of Appeals of Ohio, First District, Hamilton
KALI PITZER, COLTON MACK, and MARIAH MACK, Plaintiffs-Appellants,
CITY OF BLUE ASH, and LOUIS ERNSTES, Defendants-Appellees.
Hamilton County Court of Common Pleas Trial No. A-1700361
Laursen & Lucas and Eric W. Laursen, for
Dinsmore & Shohl LLP, Gary Becker, Bryan E. Pacheco and
Kelly E. Pitcher, for Defendants-Appellees.
This case involves an unfortunate accident in which a vehicle
collided with a fire truck en route to an emergency. But it
raises the familiar issue of statutory sovereign immunity,
which operates to shield first responders from tort suits
unless their conduct rises to a particularly egregious level.
Construing the evidence in a light most favorable to the
plaintiffs, we see no evidence that the firemen involved in
this accident engaged in inappropriate conduct, and certainly
nothing on the magnitude of recklessness, willfulness, or
wantonness, which are needed to circumvent the immunity
barrier. Therefore, the trial court properly granted summary
judgment, and we affirm its judgment.
In March 2016, firefighters for the City of Blue Ash,
Lieutenant Louis Ernstes and Michael Helms, departed the
firehouse to respond to an emergency alarm. Their route to
the emergency would take them through the intersection of
Kenwood Road and Glendale-Milford/Pfeiffer Road, traveling
southbound. Lieutenant Ernstes was driving the firetruck with
Mr. Helms acting as his copilot. Meanwhile,
plaintiff-appellant Kali Pitzer and her two children were
also headed towards the same intersection, traveling
eastbound on Glendale-Milford/Pfeiffer Road.
As Lieutenant Ernstes approached the intersection, the fire
engine's recorded video footage reveals that he sounded
the vehicle's horn several times as he guided it around
stopped cars and into the opposing traffic lane in
preparation to cross the intersection. The firetruck at this
time slowed to a near stop (the speed registering at no more
than three m.p.h.), and Lieutenant Ernstes waited for several
cars traveling west (i.e., towards Ms. Pitzer) to clear the
intersection. He looked both to his left and right before
proceeding into the intersection and again peered to his
right (the direction from which Ms. Pitzer was traveling) as
he moved forward. As the firetruck approached the southwest
corner of the intersection, Ms. Pitzer's vehicle entered
the intersection and collided with the front-right area of
Ms. Pitzer suffered injuries as a result of this accident,
including extensive memory loss. Indeed, she has no memory of
the accident. Seeking compensation, she subsequently filed
suit in January 2017 against Lieutenant Ernstes and the city
of Blue Ash, as defendants. Recognizing that the city of Blue
Ash and Lieutenant Ernstes were shielded from civil liability
under R.C. 2744.03, in her complaint Ms. Pitzer attempted to
allege conduct that would overcome the statutory tort
immunity. The city of Blue Ash and Lieutenant Ernstes
ultimately moved for summary judgment on immunity grounds.
The trial court, relying on the footage from the firetruck,
which the parties had jointly stipulated to, granted summary
judgment in their favor and simultaneously denied a motion to
amend the complaint filed by Ms. Pitzer. Ms. Pitzer now
appeals from this ruling. Presenting two assignments of
error, she contends that the trial court improperly granted
summary judgment and denied the motion to amend her complaint
to add Mr. Helms as a party.
We of course review summary judgment determinations de novo,
construing the evidence in a light most favorable to Ms.
Pitzer. Comer v. Risko, 106 Ohio St.3d 185,
2005-Ohio-4559, 833 N.E.2d 712, ¶ 8. And the heart of
this case involves the question of the appropriate reach of
statutory sovereign immunity, and whether Ms. Pitzer can
satisfy any of the statutory exceptions in order to enable
her claims to reach trial.
We begin with R.C. 2744.02(B)(1)(b), which provides that
political subdivisions, such as the city of Blue Ash, can be
held liable for injuries and other losses caused by negligent
operation of vehicles by their employees within the scope of
the employees' employment. This provision, however, is
subject to certain exceptions, which create a complete
A member of a municipal corporation fire department or any
other firefighting agency was operating a motor vehicle while
engaged in duty at a fire, proceeding toward a place where a
fire is in progress or is believed to be in progress, or
answering any other emergency alarm and the ...