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Pitzer v. City of Blue Ash

Court of Appeals of Ohio, First District, Hamilton

July 17, 2019

KALI PITZER, COLTON MACK, and MARIAH MACK, Plaintiffs-Appellants,
v.
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 Plaintiffs-Appellants.

          Dinsmore & Shohl LLP, Gary Becker, Bryan E. Pacheco and Kelly E. Pitcher, for Defendants-Appellees.

          OPINION

          BERGERON, JUDGE.

         {¶1} 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.

         I.

         {¶2} 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.

         {¶3} 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 the firetruck.

         {¶4} 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.

         II.

         A.

         {¶5} 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.

         {¶6} 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 defense when:

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 ...

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