COURT OF APPEALS, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71739 LOIS SCHIRGER, ET AL. ) JOURNAL ENTRY ) Plaintiffs-Appellants ) AND ) -vs- ) OPINION ) CITY OF BROOK PARK ) ) Defendant-Appellee ) Date of Announcement of Decision OCTOBER 23, 1997 Character of Proceeding Civil appeal from Court of Common Pleas Case No. 299125 Judgment Affirmed Date of Journalization Apppearances: For Plaintiffs-Appellants: For Defendant-Appellee: F.M. APICELLA, ESQ. DAVID A. LAMBROS, ESQ. MARY JANE TRAPP, ESQ. 6161 Engle Road Apicella & Trapp Brook Park, Ohio 44142 1200 Bond Court Bldg. Cleveland, Ohio 44114 2 JAMES M. PORTER, J.: Plaintiffs-appellants Lois Schirger and her husband appeal from the summary judgment entered in favor of defendant-appellee City of Brook Park arising out of plaintiffs' claim for personal injuries sustained when she tripped and fell over an EMS equipment bag in a public parking lot. The plaintiffs claim the trial court erred in sustaining the City's immunity defense as a matter of law. We find no error and affirm. On October 3, 1995, about 10:00 p.m., the Brook Park Fire Department (BPFD) rescue squad was called to the National Guard Armory to provide emergency services to plaintiff John Schirger who passed out while attending a bingo function at the Armory. The fire department EMS personnel attended Mr. Schirger inside the Armory. They placed the patient on a gurney and wheeled him to the rescue squad vehicle in the north parking lot of the Armory. An emergency medical bag was left on the pavement along the right or passenger side of the rescue squad. The wife of the patient, plaintiff Lois Schirger, was concerned about her husband and received permission to ride with her husband to the hospital. She approached Myron Sulminski, a Brook Park Police Officer who was working security at the Armory that evening, and asked if she could go see her husband. She was told to wait and Sulminski walked to the back of the emergency vehicle to ask the paramedics if Sulminski could see her husband. Sulminski then heard a scream and walked around the van and saw Mrs. Schirger on the ground. She told Sulminski she had tripped 3 over the medical equipment bag next to the van. BPFD personnel on the scene were in the back of the van administering to plaintiff's husband at the time. BPFD personnel were Terrence Rinas, Dennis Garapic, Anthony Mulloy and Jeff Hajek, all firefighters trained as emergency medical technicians and paramedics. Mulloy testified on deposition that he arrived in the first squad, #3 with Dennis Garapic. He explained that Rinas and Hajek came in squad #4, the transporting vehicle. It was uncontroverted that a medical equipment bag from the second rescue squad was not in use and was placed next to the emergency vehicle to get it out of the way while Mr. Schirger was being treated. Mrs. Schirger tripped over it and fell causing her injuries and leading to this lawsuit. Plaintiffs' complaint alleged that the defendant City was required to keep public grounds open, in repair and free from nuisance pursuant to law; and that the defendant City, through its emergency medical personnel, created a nuisance by negligently leaving a medical bag at night in a poorly illuminated parking lot owned by the City without any attempt to abate same or warn the public against the hazard and danger resulting therefrom. Plaintiff further alleged that as the result of tripping and falling over such medical equipment bag, she suffered permanent injuries and incurred medical expenses together with permanent disability. Defendant's answer admitted that it was a municipal corporation, but denied all other allegations and set forth certain 4 affirmative defenses, particularly, as is pertinent hereto, that it was immune from any finding of liability pursuant to R.C. 2744.01, et. seq. Defendant moved for summary judgment on its immunity defense, contending that R.C. 2744.03(A)(5) provided immunity where the injury resulted from the exercise of judgment or discretion in determining whether to acquire, or how to use, equipment, supplies, materials, personnel, facilities, and other resources unless the judgment or discretion was exercised with malicious purpose, in bad faith, or in a wanton or reckless manner which were not alleged in the complaint. Over plaintiffs' opposition, the trial court entered summary judgment for the defendant on its immunity defense and this timely appeal ensued. Plaintiffs' sole assignment of error states as follows: I. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY GRANTING DEFENDANT-APPELLEE'S MOTION FOR SUMMARY JUDGMENT PURSUANT TO O.R.C. SECTION 2744.03(B)(5) , [PLAINTIFFS-APPELLANTS ASSUME THE TRIAL COURT MEANT TO REFER TO SECTION 2744.03 (A)(5)], INASMUCH AS THE NEGLIGENT PLACEMENT BY A BROOK PARK FIREFIGHTER/E.M.T. OF A DARK COLORED EQUIPMENT BAG ON THE GROUND AT NIGHT IN A DARK PARKING LOT, WHICH CAUSED THE PLAINTIFF TO FALL, CANNOT BE CHARACTERIZED AS INVOLVING THE EXERCISE OF THE BROAD TYPE OF DISCRETION INVOLVING PUBLIC POLICY TO WHICH IMMUNITY ATTACHES. The issue before the court is whether the trial court correctly entered summary judgment on the grounds that the City was immune for the acts of its EMS personnel in placing the medical 5 bag on the pavement next to the rescue squad in the dark parking lot. Under Civ.R. 56, summary judgment is proper when: (1) no genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the party against whom the motion for summary judgment is made. State ex rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511; Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327. It is well settled that the party seeking summary judgment bears the burden of showing that no genuine issue of material fact exists for trial. Celotex Corp. v. Catrett (1987), 477 U.S. 317, 330; Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 115. Doubts must be resolved in favor of the nonmoving party. Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356, 358-59. However, the nonmoving party must produce evidence on any issue for which that party bears the burden of production at trial. Wing v. Anchor Media, Ltd. (1991), 59 Ohio St.3d 108, 111; Celotex, supra, at 322-323. In accordance with Civ.R. 56(E), "a nonmovant may not rest upon the mere allegations or denials of his pleadings, but must set forth specific facts showing there is a genuine issue for trial." Chaney v. Clark Cty. Agricultural Soc. (1993), 90 Ohio App.3d 421, 424. In Dresher v. Burt (1996), 75 Ohio St.3d 280, the Supreme Court of Ohio modified the summary judgment standard as was applied 6 under Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St. 3d 108. Presently, under the new standard, "*** the moving party bears the initial responsibility of informing the trial court of the basis for the motion, and identifying those portions of the record which demonstrate the absence of a genuine issue of fact or a material element of the nonmoving party's claim." Dresher at 296. This Court reviews the lower court's granting of summary judgment de novo. Brown v. Scioto Bd. of Commrs. (1993), 87 Ohio App.3d 704, 711 ("We review the judgment independently and without deference to the trial court's determination"). An appellate court reviewing the grant of summary judgment must follow the standards set forth in Civ.R. 56(C). "The reviewing court evaluates the record *** in a light most favorable to the nonmoving party. *** [T]he motion must be overruled if reasonable minds could find for the party opposing the motion." Saunders v. McFaul (1990), 71 Ohio App.3d 46, 50; Link v. Leadworks Corp. (1992), 79 Ohio App.3d 735, 741. Under R.C. 2744.01(C)(2)(a), the provision of fire, emergency medical, ambulance and rescue services is a governmental function. R.C. 2744.02(A)(1), which applies to both governmental and proprietary functions, states that: Except as provided in division (B) of this section, a political subdivision is not liable in damages in a civil action for injury ***, 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. 7 However, in R.C. 2744.02(B)(3), one of the five exceptions upon which plaintiffs rely, states as follows: Political subdivisions are liable for injury *** caused by their failure to keep public roads, highways, streets, avenues, alleys, sidewalks, *** or public grounds within the political subdivisions, open in repair, and free from nuisance ***. Plaintiffs also cite R.C. 2744.02(B)(2) which holds a political subdivision liable for the negligent performance of acts by its employees with respect to proprietary functions. R.C. 2744.01(G)(2)(e) defines one of the proprietary functions as the operation and control of a civic or social center, to wit, the Armory where bingo games were conducted for the benefit of the public. Plaintiffs also argue that R.C. 2744.02(B)(4) provides an exception from blanket immunity because the grounds and parking lot of an Armory are within the definition of a governmental function pursuant to R.C. 2744.01(C). Assuming that these exceptions, or any of them, applies to the circumstances of this case (an EMS medical bag left in a dark parking lot while the rescue squad is on call), the issue becomes whether R.C. 2744.03(A)(5) provides defenses and immunities to these exceptions as follows: The political subdivision is immune from liability if the injury ***, resulted from the exercise of judgment or discretion in determining *** how to use equipment, supplies, materials, personnel, facilities, and other resources, unless the judgment or discretion was exercised with malicious purpose in bad faith or in a wanton or reckless manner. 8 The factual record is beyond dispute in the instant case. Emergency medical personnel of the BPFD responded to an emergency call to attend Mr. Schirger who fainted at the Armory. Two rescue squad vans arrived. The first squad responded immediately to Mr. Schirger, went inside, administered to Mr. Schirger, placed him on the gurney and wheeled him to the rescue vehicle. The second rescue squad arrived and assisted with the patient. In caring for the patient and the exchange of equipment, a medical equipment bag was inadvertently left on the ground where Mrs. Schirger eventually tripped over it causing her injuries. We hold that plaintiffs' claims come within the scope of discretionary functions in determining how to use equipment, supplies, materials as provided in R.C. 2744.03(A)(5), thereby precluding the imposition of liability on the City. Although the placing of the bag may have been negligent, i.e., the paramedics may have foreseen someone tripping over it in the dark parking lot, there is no evidence that the acts of the paramedics were done in a wanton or reckless manner or with malicious purpose. Indeed, it is evident that taking the bag out for possible use or just to get it out of the way and then placing or leaving the bag where they did, the paramedics exercised judgment or discretion in determining how to use equipment, supplies [or] materials within the meaning of the R.C. 2744.03(A)(5) exception from liability. We find this position to be consistent with the interpretation of R.C. 2744.03(A)(5) as previously recognized by this Court. See Stinehelfer v. Solon City Schools (Feb. 25, 1993), Cuyahoga App. 9 No. 64097, unreported at 9-12 (storage of slab press used in art classes causing injury was a matter of discretion or judgment in the use of equipment and supplies); Thomas v. Board of County Commissioners(Sept. 30, 1993), Cuyahoga App. No. 62949, unreported at 7 (maintenance of Main Avenue Bridge including median barrier alleged to be inadequate causing injury required the exercise of discretion and judgment in how to use materials, equipment and personnel); Mackulin v. Lakewood Bd. of Education (March 11, 1993), Cuyahoga App. No. 61808, unreported at 14 (decision to repair or resurface ice called upon skating rink employees to exercise discretion or judgment in use of equipment supplies, materials, etc., excusing liability for hole in ice causing injury to skaters). Under the circumstances presented by this case, R.C. 2744.03(A)(5) was correctly applied and summary judgment for the City was properly entered. Plaintiffs' sole assignment of error is overruled. Judgment affirmed. 10 It is ordered that appellee 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 Court of Common Pleas to carry this judgment into execution. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DAVID T. MATIA, P.J., and SPELLACY, J., CONCUR. JAMES M. PORTER JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .