Ohio Court Rules Removing Hose Retention Devices At Most Negligent Not Wilful

The Ohio Court of Appeals has ruled that the Toledo Fire and Rescue Department was at worst negligent when it removed safety netting on the hose beds of its engine companies, and thus is entitled to immunity protection in a wrongful death suit brought by the estate of a man who was struck and killed by a hose in 2014.

On October 18, 2014, Lonnie Holmes was struck by a fire hose that was being dragged by Toledo Fire’s Engine 9. Holmes, 57, was riding a bicycle at the time. He died three days later. Besides striking Holmes, the hose damaged three cars.

Holmes’ estate sued the city claiming the removal of manufacturer-installed safety netting on the hosebeds constituted willful and wanton conduct, making the city liable despite statutory immunity protection. The complaint pointed to NFPA requirements that hose beds be equipped with devices to prevent the accidental deployment of hose. The city admitted that firefighters removed the netting, but insisted it was not liable because “it installed holsters on its fire engines that housed the fire hose nozzles. The city urged that the holsters were reasonable replacements for the safety nets, as they were also designed to secure the fire hoses and were necessary in order to aid firefighters in quickly and efficiently putting out fires.”

The trial court found that at worst the conduct of the city in replacing the netting with the hoslters was negligent. As a result, the court rule in favor of the city, concluding it was entitled to immunity protection. The estate appealed to the Court of Appeals of Ohio, Sixth Appellate District, Lucas County.

From the Court of Appeals’ decision issued on January 18, 2019:

  • It is undisputed that Holmes was injured when he was struck by a fire hose that broke free from its restraints on Engine No. 9, a fire truck owned by the city and operated by its employees.
  • Moreover, it is clear that the firefighters were operating within their scope of employment and authority and responding to an emergency call, thereby triggering the heightened standard of “willful or wanton misconduct”.
  • Accordingly, we must review whether the city’s operation of Engine No. 9 without the manufacturer-installed safety net constituted misconduct sufficient to remove the city from the statutory immunity set forth above.
  • The Supreme Court of Ohio has defined the terms “willful” and “wanton,” indicating that they are two distinct concepts.
  • “Willful misconduct implies an intentional deviation from a clear duty or from a definite rule of conduct, a deliberate purpose not to discharge some duty necessary to safety, or purposefully doing wrongful acts with knowledge or appreciation of the likelihood of resulting injury.”
  • “Wanton misconduct is the failure to exercise any care toward those to whom a duty of care is owed in circumstances in which there is great probability that harm will result.”
  • These standards “describe conduct that is more than mere negligence. * * * If reasonable minds could only conclude that the * * * conduct demonstrates, at most, negligence, then summary judgment is appropriate.”
  • The evidence … reveals that the city removed the safety nets on its fire engines to facilitate firefighter safety, based upon incidents in which TFRD firefighters were tripped by the nets when they were attempting to utilize fire hoses.
  • According to TFRD’s fire maintenance officer, the nets also slowed down firefighting efforts that are time-sensitive in nature.
  • As a result, TFRD decided to remove the safety nets and install holsters in their place.
  • The holsters that were installed eliminated the trip hazard presented by the nets, while at the same time facilitating expedient use of the fire hoses.
  • Since the nets were removed and the holsters installed, the city has safely completed over one million runs without a fire hose coming loose from a fire engine.
  • To us, the fact that over one million runs have taken place without incident demonstrates that injury to others does not ordinarily follow from the removal of safety nets and installation of the holsters.
  • [T]he record does not support a finding that the city failed to exercise any care or intended to harm others when it removed the safety net on Engine No. 9.
  • In light of the foregoing, we conclude that the evidence, construed in a light most favorable to appellant as the nonmoving party, could only lead a reasonable person to conclude that the city’s removal of the safety net on Engine No. 9 did not rise to the level of willful or wanton misconduct.
  • Consequently, the trial court did not err in awarding summary judgment to the city after concluding that the city is entitled to immunity on appellant’s wrongful death claim.

Here is a copy of the decision: Ogburn v. City of Toledo_ 2019 Ohio App. LEXIS 165

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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