Fire Truck Crash Case Redefines 'Reckless' for Ohio Emergency-Vehicle Claims

Published December 28, 2012 · Ohio Supreme Court

On a May morning in 2008, Ronald Anderson was driving his grandson to preschool in Massillon, Ohio. According to a witness behind him, he stopped at a stop sign and waited for a fire engine to pass, then pulled into the intersection. A second fire engine, following the first and traveling well over the 25-mile-per-hour limit, broadsided the van and pushed it more than 360 feet. Both Mr. Anderson and the boy died. Earlier this month the Supreme Court of Ohio used the family's lawsuit to settle a question that has confused Ohio courts for two decades: what does "reckless" actually mean when a government vehicle hurts someone?

The decision

Anderson v. Massillon, 134 Ohio St.3d 380, 2012-Ohio-5711, was decided December 6, 2012. Cynthia Anderson, the widow and grandmother, sued the city and the two firefighters aboard Engine 211 for wrongful death, alleging they acted willfully, wantonly, and recklessly.

The evidence was disputed. A state trooper's reconstruction put the engine's speed between 44 and 50 miles per hour; the family's expert put it between 49 and 52 at impact; the city's expert said 39. Walnut Road is a narrow residential street with stop signs and a flashing red light at the intersection, and a tree, a utility pole, a fence, bushes, and a house partially blocked the view of approaching traffic. The family's expert said the second engine was not visible to Mr. Anderson when he entered the intersection, and that the first engine's siren may have masked the second's.

The trial court granted summary judgment to the city and the firefighters. The Fifth District reversed, holding that reasonable minds could find the firefighters reckless, and treating "willful or wanton" and "wanton or reckless" as functionally the same standard. The Supreme Court affirmed the reversal but modified the reasoning, and sent the case back for the trial court to apply the correct definitions. The Court did not decide whether the firefighters or the city are liable; that question remains for the lower court.

Two statutes, two standards

The case turns on two provisions of Ohio's political-subdivision immunity law.

The city's defense. R.C. 2744.02(B)(1) makes a city liable for its employees' negligent operation of motor vehicles, but gives the city a "full defense" when a fire-department vehicle was proceeding to a fire or answering an emergency alarm and its operation "did not constitute willful or wanton misconduct." The same defense applies, under R.C. 2744.02(B)(1)(a), to police vehicles responding to an emergency call, and under (B)(1)(c) to EMS vehicles.

The employees' immunity. R.C. 2744.03(A)(6)(b) makes the individual employee immune unless his or her acts were "with malicious purpose, in bad faith, or in a wanton or reckless manner."

Notice the words. The city loses its defense for willful or wanton conduct. The employee loses immunity for wanton or reckless conduct. Many Ohio appellate courts, including the Second District here in Dayton, had treated all three words as meaning the same thing. The Supreme Court held that they do not.

The definitions

The Court set out the three standards in its syllabus, each with a different degree of blame:

• Willful misconduct implies "an intentional deviation from a clear duty or from a definite rule of conduct," a deliberate purpose not to discharge a safety duty, or purposefully doing a wrongful act knowing injury is likely. This is the most culpable.
• Wanton misconduct is "the failure to exercise any care toward those to whom a duty of care is owed" in circumstances where there is a great probability that harm will result.
• Reckless conduct is "the conscious disregard of or indifference to a known or obvious risk of harm to another" that is unreasonable under the circumstances and substantially greater than negligence. This is the least culpable of the three, but still well above ordinary carelessness.

The Court also held that violating a statute, ordinance, or departmental policy enacted for public safety "is not per se willful, wanton, or reckless conduct, but may be relevant" to the question. A fire department's own speed or intersection policy, in other words, is evidence, not an automatic answer.

What changed for injured people

The decision cuts in two directions, and it is important to be honest about both.

The good news is clarity, and a reachable standard against the individual. "Reckless" is now defined as the conscious disregard of a known or obvious risk. A firefighter or officer who drives an aerial ladder truck through a partially blind, stop-sign intersection at twice the speed limit, running behind another engine whose siren may drown out his own, is the kind of conduct a jury can evaluate under that definition without having to find that the driver intended to hurt anyone. Before Anderson, courts sometimes demanded a "perverse disregard" that sounded like intent. The Court has now anchored recklessness in the Restatement definition, which is a standard plaintiffs can meet with the right evidence.

The harder news is the city's defense. Because "willful or wanton" is a higher standard than "reckless," a plaintiff who proves only recklessness defeats the employee's immunity but not the city's full defense. Two justices dissented in part on exactly this point, warning that the city could be liable for willful conduct while its employees could be liable for reckless conduct, with neither standard matching the other.

In practice, the gap is narrower than it sounds. The Court quoted R.C. 2744.07(A)(2), which requires a political subdivision to indemnify its employee for any judgment, other than punitive damages, arising from acts within the scope of employment and in good faith. A judgment against the firefighter for reckless driving on duty will, in the ordinary case, be paid by the city. The city's name may not be on the verdict, but its treasury is behind it.

Why these cases need experienced investigation

I spent 19 years as a Dayton police officer and sergeant before practicing law, and I have driven emergency runs. Emergency vehicles have the right of way, but the law has never given them the right to proceed through a blind intersection at any speed they choose. Departmental policies, dispatch and radio logs, the engine's own data, siren and light sequencing, the timing between vehicles running in tandem, and sight-line measurements at the intersection are the evidence that distinguishes an unavoidable tragedy from a reckless one. That evidence is in the government's hands and must be requested and preserved immediately.

The Anderson case is a wrongful-death claim, and emergency-vehicle collisions frequently are. Families should know that the immunity statute is a hurdle, not a wall. We have discussed other immunity decisions, including the police public-duty rule and last month's city pool decision, and our page on claims against the government explains the framework. You can read more about my background here.

What this means for you

• "Willful," "wanton," and "reckless" are now three different standards in Ohio, defined by the Supreme Court.
• To hold an individual firefighter, officer, or medic liable for an emergency-run crash, you must show at least reckless conduct: conscious disregard of a known or obvious risk.
• To defeat the city's own defense, the showing is higher: willful or wanton misconduct. But the city generally must indemnify its employee for a judgment.
• Policy violations help prove recklessness but do not prove it automatically.
• The evidence lives in government records and disappears quickly. Get a lawyer involved within days, not months.