Ohio Appeals Court Refuses to Dismiss Fire Department From Tow Truck Suit

The Court of Appeals of Ohio has refused to dismiss a fire department from a lawsuit brought by the owner of a dump truck that was damaged by a towing company following an accident.

DSS Services, LLC, is suing the Pleasant Township Fire Department, Pleasant Township, and Eitel’s Towing, LCC over an incident that occurred on October 31, 2017.

The dump truck was attempting to deliver a load of gravel to a private residence when it overturned. The Pleasant Township Fire Department responded and oversaw the containment of fluids leaking from the truck. Over the objection of DSS, the fire department authorized Eitel’s Towing to right the truck.

In the process of righting the truck, it sustained what the court referred to as “significant damage”. After righting the truck, Eitel’s Towing refused to release the truck to DSS, towing it instead to it’s impound lot until payment was rendered for the recovery and later the storage. About a month later, DSS filed suit against Pleasant Township and Eitel’s Towing accusing both of negligence and conversion. Conversion is a civil action for intentionally and wrongfully interfering with the personal property of another that results in damages.

Pleasant Township moved for judgment on the pleadings, claiming it was immune from liability under the Ohio Political Subdivision Tort Liability Act, R.C. Chapter 2744. Under the act, a political subdivision is immune from liability when performing a governmental function, but not when engaged in a proprietary function.

Pleasant Township claimed that at the time of the incident it was engaged in an emergency activity, and thus it was entitled to immunity as a governmental function. DSS claimed the emergency had ended, and that righting the truck was proprietary function. The trial court ruled in favor of DSS, prompting the township to appeal.

The Court of Appeals wrestled with some preliminary matters before concluding that factually, there were questions needed to be addressed by the trial court that precluded the granting of judgment on the pleadings:

  • In determining whether a function is governmental or propriety, courts look at the particular, specific activity that allegedly resulted in the plaintiff’s injury.
  • Whether a particular function is proprietary or governmental may depend on the facts of the particular case.
  • Here, based on the allegations in the complaint, it appears that the method used to right DSS’ truck and haul it from the DSS’ customer’s property caused the damage to the truck.
  • Thus, we must focus on the specific activity of righting and towing the truck, not the more general actions of responding to and handling an accident scene, to determine the nature of the function at issue.
  • The question before us, therefore, is whether righting and towing a truck constitutes a fire service and thereby qualifies as a governmental function.
  • Pleasant Township cites Landwehr v. Batavia, 173 Ohio App.3d 599, 2007-Ohio-6035, (12th Dist.), in which the court stated, “[f]ire services are provided by the government to preserve the public health, safety and welfare.”
  • While we do not disagree with the cited statement, we cannot deduce from it that any activity that preserves public health, safety, and welfare is a fire service.
  • Moreover, the factual allegations in the complaint undermine Pleasant Township’s assertion that public safety was in jeopardy during the hoisting and hauling of the truck.
  • According to the complaint, the Pleasant Township Fire Department oversaw the containment of the fluids leaking from the truck before the truck was dragged upright.
  • The complaint further provides, “Upon the damming and diking of fluids leaking from the [t]ruck, it presented no further immediate environmental or other public risk.”
  • Consequently, the factual allegations in the complaint do not support Pleasant Township’s assertion that a danger to public safety existed at the relevant time.
  • Without such a danger, Pleasant Township loses its justification for classifying the righting and towing of DSS’ truck as a fire service.

The legal eagles may find a few more interesting points in the decision, including a ruling that the fire department is immune from liability for the alleged conversion. The bottom line is the case will now return to the trial court for further proceedings and perhaps a trial on whether the fire department and/or the tow company were indeed negligent, and if the tow company is liable to DSS for conversion.

Here is a copy of the decision:

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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