Colerain Township LODD Suit Reinstated by Appeals Court

A wrongful death suit brought by the parents of an Ohio fire captain that was dismissed in 2014, has been reinstated by an appellate court against three of the four original defendants.

Colerain Township Captain Robin Broxterman and Firefighter Brian Schira died in a house fire on April 4, 2008. Prior to becoming trapped, Captain Broxterman encountered difficulty contacting her pump operator to have her line charged and later reporting a mayday over the county’s digital trunked radio system. The house, owned by Matthew and Sharyn Cones, contained two hidden rooms used to grow marijuana illegally.

Captain Broxterman’s parents, Donald and Arlene Zang, filed a wrongful death suit against Mr. and Mrs. Cones, Morning Pride/Honeywell, and Motorola. The Hamilton County Court of Common Pleas granted summary judgment to all the defendants last year, and the Zang’s appealed.

In a ruling issued by on June 26, 2015, the Court of Appeals for the First Appellate District of Ohio reversed the trial court as to Motorola and the Cones.

As for the claims against Motorola, the court stated:

  • In support of their products-liability claim against Motorola, the Zangs retained the services of professional engineer Neil Shirk. Shirk determined that both Motorola’s digital trunked radio system and the ergonomics of the portable hand-held radios’ emergency buttons were defective. We address each critique in turn.
  • Shirk opined that the trunked radio system failed to meet the needs of the firefighters during the operations at the Coneses’ residence, and he offered various examples as to why the trunking system was ineffective. Shirk’s report indicated that 28 out of 88 attempted transmissions during the firefighting operations were rejected. He opined that this rejection rate of over 30 percent was unacceptable and exceeded the applicable industry standard.
  • In the absence of a demonstration by the Zangs of a feasible alternative design, Motorola was entitled to summary judgment on the Zangs’ allegation that the digital trunked system was defective in design.
  • Shirk further opined that the trunking system’s vocoder, which translates voice to digital, was not sufficient. He explained that Motorola utilized a half-rate vocoder, which performed poorly in a high-noise environment and could not distinguish between voice and background noise.
  • Motorola filed a motion for summary judgment, arguing that its digital trunked radio system was not defective. In support of its motion, Motorola introduced an affidavit from David Mills, a chief software architect for Motorola. Mills explained that Broxterman’s attempts to transmit had been rejected because another system user had been transmitting at the same time, not because channel resources were unavailable. He further explained that the Motorola radios were capable of transmitting in both digital trunked channels and analog channels, and that Hamilton County had elected to operate on the digital trunked system.
  • In the absence of a demonstration by the Zangs of a feasible alternative design, Motorola was entitled to summary judgment on the Zangs’ allegation that the digital trunked system was defective in design. [Fire Law note: wouldn’t the use of a normal duplex radio system for fireground radio traffic be exactly such an alternative???… but I digress].
  • We hold that the record contains a genuine issue of material fact as to whether the foreseeable risks associated with the design of the emergency button, i.e. an inability to push with gloved hands, exceeded the benefits associated with the current design of the emergency button.
  • Here, genuine issues of material fact exist regarding not only whether the emergency button on the Motorola radio was defectively designed, but also whether Broxterman had attempted to push her emergency button, and whether she would have been rescued had the emergency button been activated.
  • We hold that the trial court erred in granting summary judgment to Motorola on that portion of the Zangs’ products-liability claim alleging that the emergency button on the radio was defectively designed.

As for the allegations against Morning Pride:

  • Broxterman had been issued the following PPE manufactured by Morning Pride: a helmet, protective hood, coat, trousers, and suspenders. The record indicates that Broxterman failed to wear the issued protective hood when engaging in firefighting operations at the Coneses’ residence.
  • [A]n affidavit from Alan Schierenbeck, a senior product specialist for Honeywell First Responder Products, the parent company of Morning Pride. Schierenbeck stated that all Morning Pride PPE met the performance and design standard specified by the National Fire Protection Association. He further stated that all PPE manufactured by Morning Pride comes with a User Guide attached to it. The User Guides “stress the limitations of the full system and that even with the best protective equipment, a firefighter is always at risk, for among things, burns and death.” The bunker coat, pants, and hood manufactured by Morning Pride each had an additional warning affixed to the product. According to Schierenbeck, these warnings met all applicable industry standards.
  • The Zangs failed to introduce any opposing evidence to counter that offered by Morning Pride in their response to Morning Pride’s motion for summary judgment. They argued that Morning Pride’s warnings were too vague to be effective, but offered no evidence to support that assertion.
  • We find that Morning Pride introduced substantive evidence that it had not breached its duty to warn. And the Zangs failed to introduce any evidence to establish a genuine issue of material fact on that issue. Accordingly, we hold that the trial court did not err in granting Morning Pride summary judgment on the Zangs’ products-liability claim asserting that Morning Pride had failed to adequately warn users of the limitations of its PPE.

As for the claims against Matthew and Sharyn Cones:

  • It alleged that, although the fire at the Coneses’ residence had been sparked by a fan in their orchid-growing room, the hobby of growing orchids was merely a subterfuge for the Coneses’ cultivation of marijuana. The complaint asserted that the Coneses’ act of growing marijuana, and of growing orchids in an effort to conceal their marijuana cultivation, was willful and wanton, and that this willful and wanton conduct had proximately caused Broxterman’s death.
  • The Coneses moved for summary judgment on the ground that the “Firefighter’s Rule” barred the Zangs’ claim. The Zangs contended that the “Firefighter’s Rule” was inapplicable because the Coneses’ conduct had been willful and wanton. The trial court found that the rule applied, and it granted summary judgment on that basis.
  • Following our review of the record, we hold that there exists a genuine issue of material fact as to whether the Coneses’ conduct was willful and wanton.
  • Viewing all facts and reasonable inferences in the light most favorable to the Zangs, we find that a reasonable mind could conclude that the Coneses’ cultivation of orchids and marijuana was part and parcel of the same criminal enterprise, that the Coneses had cultivated orchids solely to conceal their marijuana-growing operation, and, consequently, that the fire in the orchid room exhaust fan was tied to the cultivation of marijuana. A reasonable mind could also conclude that the Coneses had failed to obtain the necessary permits and had performed electrical work in the orchid room themselves in an attempt to keep people away from their basement and from discovering their cultivation of marijuana, and that such behavior was willful and wanton.

Here is a copy of the opinion. Zang v Cones COA

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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