COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59940 VERNADETTE EVANS, ADMX. : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION CITY OF CLEVELAND : : Defendant-appellant : : : DATE OF ANNOUNCEMENT : FEBRUARY 20, 1992 OF DECISION : _______________________ CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Case No. 139,539 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellant: ROBERT W. TODT Attorney at Law 1919 East 13th Street Cleveland, Ohio 4414 For defendant-appellee: CRAIG S. MILLER Director of Law FRANZETTA D. TURNER, Ass't. Room 106 - City Hall 601 Lakeside Avenue Cleveland, Ohio 44114 - 1 - PATTON, J.: Plaintiff-appellant, Vernadette Evans, administratrix of the estate of Evelyn Dial, appeals the trial court's entry of summary judgment in favor of defendant-appellee, the City of Cleveland. Appellant argues that the trial court erred in two respects: (1) in granting appellee's motion for summary judg- ment, and (2) denying leave to amend the complaint. For the following reasons, we affirm the trial court's decision. On November 12, 1987, appellant filed a complaint against the appellees John Doe and Richard Roe. The complaint alleged that Ms. Dial died as a result of the negligent, careless and reckless dispatch of an Emergency Medical Services ("EMS") unit. On November 21, 1988, the appellant filed a motion to amend her complaint in order to substitute the names of the fictitious defendants with the actual identities of appellee's employees involved in the suit. On November 28, 1988, the trial court denied the motion to amend citing Civ. R. 3(A). The appellant filed a second motion to amend the complaint to include a charge of willful and wanton misconduct on the part of the appellee which was granted by the trial court. On December 11, 1989, the appellee filed a motion for summary judgment. The motion contended that the provision of emergency medical services is a governmental function and thus it was entitled to the statutory immunity provided to political subdivisions by R.C. 2744.02(A). The appellant opposed the - 3 - city's motion and argued that while the "provision" of emergency medical services is a governmental function, the "operation" of such services is a proprietary function rendering the statutory immunity inapplicable. The trial court initially denied the city's motion for summary judgment, but upon reconsideration granted said motion on May 16, 1990. The relevant facts giving rise to appellant's suit are as follows: On December 24, 1986, Evelyn Dial began choking on food she had consumed at her home located at 5714 Linwood Avenue, Cleve- land, Ohio. Her daughter Ave and Mr. Riggins, a family friend, were present when she began to choke. Mr. Riggins and Ave attempted to assist Mrs. Dial but were unsuccessful in dislodging the food. Cleveland EMS records reveal that they received a call from Pat Collins requesting emergency medical assisitance at 10:04 p.m. Ms. Collins reported that a 43 year old female was short of breath at 5714 Linwood Avenue. She further indicated she was calling from a pay phone. Janet Pierce received the call at the dispatch center and recorded the pertinent information. After receiving the call, Ms. Pierce located the cross streets for the Linwood address and the number of the EMS unit assigned to the area. She forwarded the information to Deidre Jones, a daughter. Ms. Jones first attempted to contact Unit 9, which was the unit assigned to the area. However, at that time Unit 9 was at St. - 4 - Luke's Hospital and was unavailable to take the call. Ms. Jones then dispatched Unit 6 from St. Alexis Hospital at 10:09 p.m. At 10:11 p.m., Unit 6 was responding to the call at the Linwood address. At 10:10 p.m. EMS received a call for a "male down" at 1713 East 60th Street. At 10:12 p.m. Unit 12 was dispatched to the East 60th Street address. At 10:13 p.m. EMS contacted the Cleveland Fire Department to respond to the calls at the Linwood address and the East 60th Street address as first responders. Pursuant to EMS Standards fire rescue must be contacted if within two minutes of receipt of a call an EMS unit is not dispatched. Between 10:11 p.m. when Unit 6 was responding to the call at the Linwood Avenue address, and 10:13 p.m. when the fire department was contacted, EMS received another call from the Linwood address. At that time the caller indicated that the decedent was unconscious and not breathing. At 10:16, Unit 12 was cancelled en route to East 60th and Unit 6 was reassigned to the emergency at East 60th Street since fire rescue was close to the Linwood address. Fire personnel estimated their time of arrival at the Linwood address at 10:17 p.m. or 10:18 p.m. When Mrs. Dial was placed in the fire rescue vehicle she was exhibiting a pulse and was breathing. While enroute to Mt. Sinai Hospital she went into full arrest. Despite every effort to revive her, she was pronounced dead at the hospital at 10:54 - 5 - p.m. The coroner's report states the cause of death as asphyxia by food bolus in the airway. Appellant's first assignment of error provides: THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDG- MENT, WHERE THE DEFENDANT-APPELLEE WAS NOT EN- TITLED TO JUDGMENT AS A MATTER OF LAW. Appellant contends the trial court erred by granting the appellee's motion for summary judgment. Specifically, appellant argues the operation of Cleveland's emergency medical service is a proprietary function rather than a governmental function. Thus, appellant argues the appellee is not statutorily immune pursuant to R.C. 2744.02. Appellant's argument lacks merit. On a motion for summary judgment, the moving party has the burden of showing that no genuine issue exists as to any material fact and that he is entitled to judgment as a matter of law. Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St. 2d 64. When a summary judgment motion is made "[p]ursuant to Civ. R. 56(C), summary judgment may be granted when it appears from the evidence submitted 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, such party being entitled to have the evidence or stipulation construed most strongly in his favor." Adkins v. Ontario (1983), 8 Ohio St. 3d 45, 46. R.C. 2744.02 provides statutory immunity for political sub- divisions. R.C. 2744.02(A)(1) provides in relevant part: - 6 - *** Except 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 persons 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. Division (B) of the statute contains five specifically enumerated exceptions. They include: (1) the negligent opera- tion of a motor vehicle by a government employee within the scope of employment; (2) negligent act of a government employee with respect to proprietary functions of the political subdivi- sion; (3) a failure to keep public roads, bridges, sidewalks or public grounds in repair and free from nuisance; (4) negligence by governmental employees that causes injury within or on the grounds of buildings used in the performance of a governmental function; and (5) liability that is expressly imposed upon the political subdivision by other sections of the Revised Code including R.C. 2743.02 and R.C. 5591.37. It has been held that with the exception of the five situa- tions specifically enumerated in R.C. 2744.02(B), a political subdivision has blanket statutory immunity from liability for its actions. Amborski v. City of Toledo (Mar. 23, 1990), Lucas App. No. L-89-200, unreported. Appellant argues that appellee's conduct falls within the proprietary function exception contained in division (B)(2) of R.C. 2744.02. Appellant attempts to distinguish the "operation" of emergency medical, ambulance, and rescue services from the - 7 - "provision" of emergency medical, ambulance and rescue services. We specifically reject appellant's arguments and find that the operation of an emergency medical rescue service constitutes a governmental function. R.C. 2744.01(C)(2)(a) provides: (2) A "governmental function" includes, but is not limited to, the following: (a) The provision or nonprovision of police, fire, emergency, medical, ambulance, and rescue services or protection; *** Accordingly, we hold that the provision of emergency medical services including the "operation" thereof is a governmental function within the meaning of R.C. 2744.01(C)(2)(a). See Bed- well v. Physio Control Corp. (Jan. 5, 1991), Miami App. No. 89- CA-67. Furthermore, in King v. Williams (1983), 5 Ohio St. 3d 137, the court in its discussion of governmental functions stated: Indeed, emergency medical services fit within the classic definition of governmental functions as those duties which are imposed on the State as an obligation of sovereignty, such as protection of the citizens from crime, fire, contagion, or preserving the peace and health of citizens. Wooster v. Arbenz (1927), 116 Ohio St. 281 at 284-285. Although King was decided prior to the enactment of R.C. Chapter 2744, we find its discussion illuminating. In light of the above, we hold that the trial court correctly concluded the appellee is statutorily immune from liability and, therefore, was entitled to judgment as a matter of law. - 8 - Thus, appellant's first assignment of error is overruled. Appellant's second assignment of error provides: THE TRIAL COURT ERRED IN DENYING THE PLAINTIFF- APPELLANT'S MOTION OF NOVEMBER 21, 1988 TO AMEND HER COMPLAINT. Appellant argues the trial court erred in denying a November 21, 1988 motion to amend her complaint pursuant to Civ. R. 3(A). Appellant's argument lacks merit. Civ. R. 3(A) provides: (A) A civil action is commenced by filing a complaint with the court, if service is obtained within one year from such filing upon a named defendant, or upon an incorrectly named defendant whose name is later corrected pursuant to Rule 15(C), or upon a defendant identified by a fic- titious name whose name is later corrected pur- suant to Rule 15(D). In Amerine v. Haughton Elevator Co. (1989), 42 Ohio St. 3d 57, 59, the Ohio Supreme Court stated: Civ. R. 3(A) now specifically states that the use of a fictitious name with subsequent correction, by amendment, of the real name of a defendant under Civ. R. 15(D) relates back to the filing of the original complaint and that service must be obtained within one year of the filing of the original complaint. In the instant case service was not obtained within one year of the filing of the original complaint. Appellant's com- plaint was filed on November 12, 1987. On November 27, 1988, more than one year after filing the original complaint, the appellant sought leave to amend the complaint in order to sub- stitute the real names of the defendants for their fictitious names contained in the original complaint. In order to have - 9 - properly commenced suit against the fictitiously named defendants, pursuant to Civ. R. 3(A) and Civ. R. 15(D), the appellant would have had to amend the complaint and serve the fictitiously named defendants within one year of the filing of the original complaint. Amerine, supra. Given appellant's failure to do so, the trial court did not err in denying appellant's motion for leave to amend her complaint. Thus, the appellant's second assignment of error is over- ruled. Judgment affirmed. - 10 - It is ordered that appellee recover of appellant 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 Cuyahoga County Court of Common Pleas 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. FRANCIS. E. SWEENEY, P.J. HARPER, J. CONCUR JUDGE JOHN T. PATTON 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. .