Opinion
No. 25829.
2011-12-21
RIFFLE et al., Appellees, v. PHYSICIANS AND SURGEONS AMBULANCE SERVICE; City of Akron, Appellant.
Amy Ruley Combs, for appellees. John Christopher Reece and Michael J. Defibaugh, for defendant.
Amy Ruley Combs, for appellees. John Christopher Reece and Michael J. Defibaugh, for defendant.
DICKINSON, Judge.
INTRODUCTION
{¶ 1} Andrea Riffle called 9–1–1, reporting that she was in her third trimester of pregnancy and experiencing serious bleeding. A short time later, several city of Akron paramedics arrived at her home and took her vital signs. The paramedics did not take the fetus's vital signs and, instead of taking Mrs. Riffle immediately to the hospital, called American Medical Response to take her. American Medical Response arrived a few minutes after receiving the paramedics' call and took Mrs. Riffle to the hospital. Doctors diagnosed her fetus as having fetal bradycardia and performed an emergency cesarean section. The baby died three days later.
{¶ 2} Mrs. Riffle and her husband, Dan Riffle, sued the city, the paramedics who came to her house, and American Medical Response for contributing to their daughter's death. The city moved for judgment on the pleadings, alleging that it is immune under R.C. 2744.02. The trial court denied its motion, concluding that to the extent that the Riffles alleged that the city's paramedics' conduct was willful and wanton, the city was not entitled to immunity because, while R.C. 4765.49(B) provides immunity to governmental entities that provide emergency medical services in a negligent manner, it specifically excludes from immunity willful or wanton conduct of such governmental entities. The city has appealed, assigning as error that the trial court incorrectly determined that the Riffles' claims against it are not barred by R.C. 2744.02. We affirm because R.C. 4765.49(B) more specifically addresses governmental entities that provide emergency medical services than does R.C. 2744.02, and therefore, it, rather than the more general provisions of R.C. 2744.02, applies to the alleged facts of this case.
POLITICAL SUBDIVISION IMMUNITY
{¶ 3} The city's assignment of error is that the trial court incorrectly denied its motion for judgment on the pleadings based on sovereign immunity. Specifically, it has argued that it has immunity under R.C. 2744.02. Under R.C. 2744.02(A)(1), “[e]xcept as provided in division (B) of this section, a political subdivision is not liable in damages in a civil action for injury, death, or loss to person or property allegedly caused by any act or omission of the political subdivision or an employee of the political subdivision in connection with a governmental or proprietary function.” The provision or nonprovision of emergency medical services is a governmental function. R.C. 2744.01(C)(2)(a).
{¶ 4} The Riffles have argued that although R.C. 2744.02(A)(1) provides a general blanket of immunity to political subdivisions, there is an exception under R.C. 2744.02(B)(5) that applies in this case. Under R.C. 2744.02(B)(5), “a political subdivision is liable for injury, death, or loss to person or property [if] civil liability is expressly imposed upon the political subdivision by a section of the Revised Code, including, but not limited to, sections 2743.02 and 5591.37 of the Revised Code. Civil liability shall not be construed to exist under another section of the Revised Code merely because that section imposes a responsibility or mandatory duty upon a political subdivision, because that section provides for a criminal penalty, because of a general authorization in that section that a political subdivision may sue and be sued, or because that section uses the term ‘shall’ in a provision pertaining to a political subdivision.”
{¶ 5} According to the Riffles, R.C. 4765.49(B) expressly imposes liability on political subdivisions for willful or wanton misconduct of their employees who provide emergency medical services. Under R.C. 4765.49(B), “[a] political subdivision * * * that provides emergency medical services * * * is not liable in damages in a civil action for injury, death, or loss to person or property arising out of any actions taken by a first responder, EMT-basic, EMT–I, or paramedic working under the officer's or employee's jurisdiction, * * * unless the services are provided in a manner that constitutes willful or wanton misconduct.”
{¶ 6} R.C. 2744.02(B)(5) provides two examples of statutes that “expressly impose[ ]” liability on a political subdivision. The first is R.C. 2743.02, which provides that “[t]he state hereby waives its immunity from liability * * * and consents to be sued * * * in the court of claims created in this chapter[.]” The other is R.C. 5591.37, which provides that “[n]egligent failure to comply with section 5591.36 of the Revised Code shall render the county liable for all accidents or damages resulting from that failure.”
{¶ 7} R.C. 4765.49 is different from the examples given in R.C. 2744.02(B)(5). While the language used in R.C. 2743.02 and 5591.37 indicates that the purpose of those statutes is to establish liability when it would not otherwise exist, the language of R.C. 4765.49 shows a purpose to create immunity when liability would otherwise exist. R.C. 4765.49(B) provides that governmental entities, their employees, and entities that contract with them are “not liable in damages in a civil action for injury, death, or loss to person or property arising out of any actions taken by a first responder * * * unless the services are provided in a manner that constitutes willful or wanton misconduct.” R.C. 4765.49(A) provides the same immunity from claims of negligence to nongovernmental entities and individuals who provide emergency medical services. There can be no doubt that R.C. 4765.49's purpose in regard to nongovernmental actors is to establish immunity for negligent conduct, not establish liability for willful or wanton misconduct because, in its absence, liability for both negligence and willful or wanton misconduct would exist.
{¶ 8} Construing statutes with “unless” or “except” clauses similar to that in R.C. 4765.49, other districts have determined that the language of such statutes does not “expressly impose[ ]” liability on a political subdivision under R.C. 2744.02(B)(5). Svette v. Caplinger, 4th Dist. No. 06CA2910, 2007-Ohio-664, 2007 WL 490161, at ¶ 33 (interpreting former version of R.C. 4931.49(A), which provided that “[t]he state * * * is not liable in damages * * * arising from any act or omission, except willful or wanton misconduct, in connection with * * * bringing into operation a 9–1–1 system”); Messer v. Butler Cty. Bd. of Commrs., 12th Dist. Nos. CA2008–12–290 and CA2009–01–004, 2009-Ohio-4462, 2009 WL 2762825, at ¶ 16–19 (interpreting current version of R.C. 4931.49(B)); see also Magda v. Greater Cleveland Regional Transit Auth., 8th Dist. No. 92570, 2009-Ohio-6219, 2009 WL 4190987, at ¶ 16–21 (interpreting R.C. 2745.01, which provides that an employer is not liable for tortious conduct “unless the plaintiff proves that the employer committed the tortious act with the intent to injure another or with the belief that the injury was substantially certain to occur”). We agree with the city that R.C. 4765.49(B) does not “expressly impose [ ]” civil liability on political subdivisions under R.C. 2744.02(B)(5).
{¶ 9} So we are left with two statutes, both of which appear to apply in this case. One appears to provide immunity to governmental entities that provide emergency medical services for all claims related to those services, and one appears to provide immunity only to negligence claims related to those services. The Riffles have argued that R.C. 2744.02(A)(1) does not apply in this case because it conflicts with R.C. 4765.49(B). They have argued that if two statutes apply to the same set of facts but are in conflict, the more specific statute applies, which, in this case, is R.C. 4765.49(B).
{¶ 10} “It is a well-settled principle of statutory construction that when two statutes, one general and the other special, cover the same subject matter, the special provision is to be construed as an exception to the general statute which might otherwise apply.” State ex rel. Dublin Secs. Inc. v. Ohio Div. of Secs., 68 Ohio St.3d 426, 429, 627 N.E.2d 993 (1994) (following Acme Engineering Co. v. Jones, 150 Ohio St. 423, 83 N.E.2d 202 (1948), paragraph one of the syllabus). That principle is codified in R.C. 1.51, which provides that “[i]f a general provision conflicts with a special or local provision, they shall be construed, if possible, so that effect is given to both. If the conflict between the provisions is irreconcilable, the special or local provision prevails as an exception to the general provision, unless the general provision is the later adoption and the manifest intent is that the general provision prevails.” State ex rel. Slagle v. Rogers, 103 Ohio St.3d 89, 2004-Ohio-4354, 814 N.E.2d 55, at ¶ 14.
{¶ 11} R.C. 2744.02(A)(1) and 4765.49(B) “cover the same subject matter” in that they both provide immunity to political subdivisions that provide emergency medical services. R.C. 4765.49(B) contains an exception for services that “are provided in a manner that constitutes willful or wanton misconduct.” R.C. 2744.02(A)(1) does not have a similar exception. The two sections, therefore, conflict because the application of R.C. 2744.02(A)(1)' s broad language would render the willful-or-wanton-misconduct exception in R.C. 4765.49(B) meaningless to the extent that it applies to political subdivisions.
{¶ 12} The city has argued that R.C. 4765.49(B)'s willful-or-wanton-misconduct exception is not meaningless because, unlike R.C. 2744.02(A)(1), R.C. 4765.49(B) also applies to private organizations that enter into contracts with political subdivisions to provide emergency medical services. See Bostic v. Cleveland, 8th Dist. No. 79336, 2002 WL 199906, at *2 (Jan. 31, 2002) (suggesting that R.C. 4765.49(B)'s “apparent purpose is, inter alia, to ensure the same level of immunity for [government] contractors and their employees as is granted to direct government employees and political subdivisions performing the same functions.”). Just because there are circumstances under which Section 4765.49(B) applies and R.C. 2744.02(A)(1) does not, however, does not mean that they do not “cover the same subject matter” regarding the immunity of a political subdivision that provides emergency medical services. Applying R.C. 2744.02(A)(1) to the facts of this case would render R.C. 4765.49(B) meaningless, to the extent that it applies to political subdivisions.
{¶ 13} Under R.C. 1.51, the first step in resolving a conflict is to determine whether the provisions at issue are general, special, or local. State v. Chippendale, 52 Ohio St.3d 118, 120, 556 N.E.2d 1134 (1990). R.C. 2744.02(A)(1) is a general immunity statute, bestowing immunity on all the governmental functions of a political subdivision. Swanson v. Columbus, 87 Ohio App.3d 748, 751, 622 N.E.2d 1181 (1993) ( “[R.C.] 2744.02(A) confers blanket immunity upon political subdivisions with respect to all governmental functions”); R.C. 2744.01(C)(2)(a). R.C. 4765.49(B) is a special provision, specifically addressing the immunity of “[a] political subdivision, joint ambulance district, joint emergency medical services district, or other public agency, and any officer or employee of a public agency or of a private organization operating under contract or in joint agreement with one or more political subdivisions, that provides emergency medical services, or that enters into a joint agreement or a contract * * * for the provision of emergency medical services[.]”
{¶ 14} “[If] two statutes, one general and the other specific, involve the same subject matter, [R.C.] 1.51 must be applied.” State ex rel. Dublin Secs. Inc. v. Ohio Div. of Secs., 68 Ohio St.3d 426, 430, 627 N.E.2d 993. Under R.C. 1.51, the two sections are to be reconciled as much as possible, but if a conflict exists, “the special * * * provision prevails * * * unless the general provision is the later adoption and the manifest intent is that the general provision prevail.” See Dublin Secs. at 430, 627 N.E.2d 993, quoting R.C. 1.51.
{¶ 15} The General Assembly first enacted a specific immunity statute regarding emergency medical personnel in 1976 in R.C. 4731.90. It was later moved to R.C. 3303.21, then to R.C. 4765.49, and it was last amended in April 2007. R.C. 2744.02 was enacted in 1985 and was last amended in September 2007. Accordingly, R.C. 2744.02 was both enacted after and has been more recently amended than R.C. 4765.49.
{¶ 16} Under R.C. 1.51, however, “[a] later general provision * * * shall control over the special provision * * * only if * * * the ‘manifest intent’ of the General Assembly is that the general provision shall prevail.” State ex rel. Dublin Secs. Inc. v. Ohio Div. of Secs. at 430, 627 N.E.2d 993, quoting Cincinnati v. Thomas Soft Ice Cream Inc., 52 Ohio St.2d 76, 80, 369 N.E.2d 778 (1977); see also State v. Chippendale, 52 Ohio St.3d 118, 122, 556 N.E.2d 1134 (1990) (“[If] a general and a special provision cover the same conduct, the legislature may expressly mandate that such provisions are to run coextensively”). There is nothing in R.C. 2744.02 that expresses an intention by the General Assembly for that section to prevail over a specific section regarding the immunity of political subdivisions that provide emergency medical services. See State ex rel. Slagle v. Rogers, 103 Ohio St.3d 89, 2004-Ohio-4354, 814 N.E.2d 55, at ¶ 15 (concluding that R.C. 2301.24 applied instead of R.C. 149.43 because, even though R.C. 149.43 was enacted more recently, the legislature did not express its intent that R.C. 149.43, a general statute, should prevail over more specific statutes regarding copying costs); State v. Conyers, 87 Ohio St.3d 246, 250, 719 N.E.2d 535 (1999) (resolving conflict between R.C. 2921.01(E) and R.C. 2967.15(C)(2)).
{¶ 17} We conclude that in cases involving alleged willful or wanton misconduct by a first responder, EMT-basic, EMT–I, or paramedic working for a political subdivision, R.C. 4765.49(B) applies instead of R.C. 2744.02(A)(1). This conclusion is consistent with the conclusions reached by the other districts that have considered this issue. Blair v. Columbus Div. of Fire, 10th Dist. No. 10AP–575, 2011-Ohio-3648, 2011 WL 3073870, at ¶ 28;Johnson v. Cleveland, 194 Ohio App.3d 355, 2011-Ohio-2152, 956 N.E.2d 355, at ¶ 21;Fuson v. Cincinnati, 91 Ohio App.3d 734, 738, 633 N.E.2d 612 (1993). The trial court correctly denied the city's motion for judgment on the pleadings. The city's assignment of error is overruled.
CONCLUSION
{¶ 18} The trial court correctly determined that R.C. 4765.49(B) governs whether the city has immunity regarding the Riffles' claims. The judgment of the Summit County Common Pleas Court is affirmed.
Judgment affirmed.