COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59859 ELEANOR I. VANCE : : Plaintiffs-appellants : : JOURNAL ENTRY -vs- : AND : OPINION C-MED INC., ET AL. : : Defendants-appellees : : DATE OF ANNOUNCEMENT OF DECISION: FEBRUARY 13, 1992 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas Case No. 155662 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-Appellants: For Defendants-Appellees: ARTHUR E. DOMBEK, ESQ. DIERDRE G. HENRY, ESQ. LANDSKRONER & PHILLIPS CO., L.P.A. WESTON, HURD, FALLON, 75 Public Square, 11th Floor PAISLEY & HOWLEY Cleveland, Ohio 44113 2500 Terminal Tower Cleveland, Ohio 44113 CRAIG S. MILLER, ESQ. DIRECTOR OF LAW BY: MALCOLM C. DOUGLAS, ESQ. ASST. DIRECTOR OF LAW 601 Lakeside Avenue Room 106, City Hall Cleveland, Ohio 44114 - 2 - DYKE, J.: Appellants, Eleanor I. Vance, Administratrix of the Estate of John Vance, and John Vance, Jr., brought suit against appellees, C-Med, Inc. and the City of Cleveland, alleging that the appellees acted negligently in the dispatch and response of the city's ambulance service for which C-Med was dispatcher. On May 13, 1983 a third party called C-Med on the decedent's behalf and an ambulance was sent from St. John's Hospital at W. 79th and Detroit to Columbiana Road at the foot of the Lorain-Carnegie bridge. Appellants contended that an ambulance should have been sent from St. Vincent Charity Hospital, which was closer, that C- Med should have provided directions to the driver and that when the driver encountered a closed bridge and was delayed, C-Med should have told the people aiding decedent so that decedent could have been transported to the hospital by cab even earlier than he was. Decedent died at St. Vincent Charity Hospital after being taken there by cab. On appeal from a summary judgment for Cleveland and a directed verdict for C-Med appellants assign five errors for review. I THE TRIAL COURT ERRED BY ADMITTING INTO EVIDENCE DEFENDANT C-MED, INC.'S AUDIOTAPE WHEN EXISTENCE OF THE DOCUMENTATION CONTAINED ON THE AUDIOTAPE WAS DENIED IN DISCOVERY. During discovery C-Med had responded to appellants interrogatories in the following manner. - 3 - 6. State how many defendant EMS emergency vehicles were in operation on May 13, 1983 between 7:00 a.m. and 8:30 a.m. ANSWER: Unknown. This information would be available directly from EMS. 7. As to the emergency vehicles referred to in the proceeding interrogatory, state the location of each vehicle at approximately 7:50 a.m. to 8:10 a.m. ANSWER: C-Med has no documents which would give this information. However, at trial C-Med attempted to admit a tape of the dispatcher's calls that would provide the information requested and establish that no closer vehicle was available. Appellants filed a motion in limine which argued that C-Med failed to update its response to the interrogatory, as required by Civ. R. 26(E)(2). C-Med argued that before trial appellants' counsel and C-Med's counsel met and counsel for appellants had been given an opportunity to hear the tape of the period before and after the call for decedent but had declined. Appellants argue that C-Med's counsel played only what she felt was pertinent and did not convey the information about the whereabouts of the other EMS squads. However, the transcript of that meeting reveals that although C-Med played only what it believed had to do with the decedent (i.e. the portions that mention him or directly resulted from the call for him) counsel for appellant knew that the tape was a twenty-four hour tape which covered every call and every dispatch having anything to do with C-Med. - 4 - "Mr. Dombek: This is the very beginning of this ..." "Ms. Henry: The pertinent part of the tape." "Mr. Dombek: ... whole scenario regarding John Vance?" "Ms. Henry: Right. It starts at 7:50 and 24 seconds." ... "Mr. Dombek: Just so it's clear, there are other, there may have been other things going on, obviously there are other things going on, but there may be other things going on in this tape, but you are saying they don't relate directly to the Vance." "Ms. Henry: You wanted conversations between anybody at C-MED or EMS or the restaurant having to do with Vance. This is all there is about Vance on this tape." "Mr. Dombek: Just so that ..." "Ms. Henry: About any transmission having anything to do with Vance." "Ms. Henry: There are 24 hours worth of tape that has to do with every phone call, every dispatch, every conversation between anybody having to do with C-MED from right after midnight until midnight again." "Mr. Dombek: Okay. Just so it's clear, between 7:53, or whatever time this Vance thing started, and 8:03:17, there are other things on that tape that relate to things other than Vance, is that correct?" "Ms. Henry: Right." "Mr. Dombek: Okay. I know there is before and after on the 24 hour tape, I mean during this time there are other calls?" "Ms. Henry: There are other calls because there is more than one dispatcher." - 5 - "Mr. Dombek: Okay." "Ms. Henry: Nothing having to do with Vance." "Mr. Dombek: Okay." "Ms. Henry: All right." (Emphasis added.) Clearly the information requested was provided by the opportunity to hear the entire tape. Appellants waived that opportunity and cannot claim surprise at trial. Assignment of error No. I is overruled. II THE TRIAL COURT ERRED BY GRANTING A DIRECTED VERDICT IN FAVOR OF DEFENDANT C-MED, INC. BASED UPON THE AUDIOTAPE BEING CONSIDERED AS THE ONLY COMPETENT EVIDENCE TO PROVE C-MED'S DUTY OF DISPATCHING THE NEAREST EMERGENCY VEHICLE. Appellants insist that John Vance, Jr. testified that C-Med did not send the closest available unit when the call for his father was made at 7:50 a.m. Appellant quotes Vance's testimony as follows: Q. Did anyone tell you that, at 7:50:24, that the ambulance that you saw was at St. Vincent Charity Hospital at 7:50:24? A. Yes. Q. Who? A. The receptionist. Q. The receptionist told you specifically that the ambulance was there at 7:50:24? - 6 - A. She didn't say specifically 7:50. She said it's been here all along. However, appellants fail to quote the next two lines. MS. HENRY: Your Honor, I ask that the answer be stricken. THE COURT: Sustained. Appellants also contend that the cab driver and Vance testified that an ambulance was present upon their arrival at the hospital. Such testimony fails to establish that the ambulance was available to respond to the initial request. Withrow, of C-Med, testified that that ambulance dropped off a patient at St. Vincent Charity at 7:55:19. This was after the ambulance from St. John's had been sent for decedent. Civ. R. 50(A)(4) states as follows: When a motion for a directed verdict has been properly made, and the trial court, after construing the evidence most strongly in favor of the party against whom the motion is directed, finds that upon any determinative issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such party, the court shall sustain the motion and direct a verdict for the moving party as to that issue. The motion should be denied if there is any evidence of substantial probative value in support of the claim. Ruta v. Breckinridge-Remy Co. (1982), 69 Ohio St. 2d 66, 69. Appellants' evidence was stricken. Assignment of error No. II is overruled. III THE TRIAL COURT FAILED TO CONSIDER WHEN IT GRANTED A DIRECTED VERDICT, THAT DEFENDANT C- - 7 - MED BREACHED ITS DUTY TO PROVIDE PROPER DIRECTIONS TO THE DRIVER OF THE EMERGENCY VEHICLE. Appellants argue that C-Med had a duty to provide direction to Cleveland's EMS units. Appellants contend that this duty was established by "custom and usage" because C-Med routinely provided directions to the EMS units and the EMS driver's relied on those directions. Appellants note that the dispatcher tried to pinpoint the location, the director of C-Med testified that drivers could ask for directions, the driver testified that when there was a problem he would ask C-Med for directions, and that the driver asked the dispatcher to direct the unit. The evidence established that C-Med simply assigned a unit to call at a specific location and was available for assistance in finding it but did not have a duty to provide directions upon dispatch. Although the unit in question asked for assistance and encountered a closed bridge a review of all of the evidence reveals that the driver knew the location of the place in question, knew how to get there and found an alternate route. C- Med was hired to dispatch, not direct, though it may have gratuitously offered assistance. The driver testified that the unit was to find its own way. No duty was assumed by C-Med. Assignment of error No. III is overruled. IV THE TRIAL COURT FAILED TO CONSIDER WHEN IT GRANTED A DIRECTED VERDICT THAT DEFENDANT C- MED BREACHED ITS DUTY TO INFORM PLAINTIFF - 8 - AND/OR THEIR AGENTS THAT THE EMERGENCY VEHICLE WAS LOST AND/OR DETAINED. Appellants insist that C-Med voluntarily assumed a duty to tell those who called for decedent that the unit was delayed. Appellant contends that the dispatcher repeatedly assured the people at the location where decedent waited that the ambulance was on its way. However, only one of the instances quoted occurred after the ambulance requested direction and none of them occurred after the unit encountered the closed bridge. On the last occasion that the dispatcher said that the unit was on its way it was delayed but en route and thus "on its way." Appellants point to nothing that required C-Med to say that the unit was delayed. Assignment of error No. IV is overruled. V THE TRIAL COURT ERRED BY GRANTING DEFENDANT CITY OF CLEVELAND'S MOTION FOR SUMMARY JUDGMENT AS GENUINE ISSUES OF MATERIAL FACTS REMAIN. Cleveland's motion argued that Cleveland's duty was to the public and could give rise only to a public, rather than an individual, injury. Appellants responded by contending that the special duty exception applies. When a duty which the law imposes upon a public official is a duty to the public, a failure to perform it, or an inadequate or erroneous performance, is generally a public and not an individual injury. The public duty rule, and the special duty exception, comprise a doctrine which is independent of, and accordingly survived the abrogation of, sovereign immunity. - 9 - In order to demonstrate a special duty or relationship, the following elements must be shown to exist: (1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality's agents that inaction could lead to harm; (3) some form of direct contact between the municipality's agents and the injured party; and (4) that party's justifiable reliance on the municipality's affirmative undertaking. Sawicki v. Ottawa Hills (1988), 37 Ohio St. 3d 222 (paragraphs two, three and four of the syllabus). See also, Commerce & Ind. Ins. Co. v. Toledo (1989), 45 Ohio St. 3d 100 (paragraphs one and three of the syllabus); Brodie v. Summit Cty. Children Services Board (1990), 51 Ohio St. 3d 112. "[A] special duty exception cannot be an independent basis for liability when the plaintiffs' sole allegation of a duty can only be premised upon the voluntary assumption of a duty." Sawicki, 37 Ohio St. 3d at 232. However, as in Sawicki, even allowing an application of the special duty analysis and even assuming that the statement that an ambulance was on its way was an assumption of an affirmative duty to act on behalf of the decedent there was no direct contact between the decedent and the dispatcher. Id. Appellants insist merely that direct contact was impossible and that therefore that element of the test should not apply. It was also impossible in Sawicki (decedent was attacked and killed while another called the police) yet recovery was denied. Summary judgment is appropriate when the following factors have been established: - 10 - (1) [T]hat there is no genuine issue as to any material fact; (2) that the moving party is entitled to judgment as a matter of law; and (3) that reasonable minds can come to but one conclusion, and that conclusion is adverse to the party against whom the motion for summary judgment is made, who is entitled to have the evidence construed most strongly in his favor" Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St. 2d 64, 66 8 O.O. 3d 73, 74, 375 N.E. 2d 46, 47. See, also, Civ. R. 56(C); and Temple v. Wean United, Inc. (1977), 50 Ohio St. 2d 317, 327, 4 O.O. 3d 466, 472, 364 N.E. 2d 267, 274. Bostic v. Connor (1988), 37 Ohio St. 3d 144, 146. Summary judgment was properly granted. Assignment of error No. V is overruled. Judgment affirmed. - 11 - It is ordered that appellees recover of appellants its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. J.F. CORRIGAN, J., AND PATTON, J., CONCUR PRESIDING JUDGE ANN DYKE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .