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Opial v. Rossford12/6/1996
ABOOD, Judge.
This is an appeal from a judgment of the Wood County Court of Common Pleas that granted appellees' motion for summary judgment, denied appellants' motion for summary judgment, and dismissed appellants' complaint for damages resulting from the death of appellant Judy Opial's husband, John Opial.
On appeal appellants, the estate of John Opial and Judy Opial, set forth the following as their sole assignment of error:
"The trial court improperly applied statutory immunity to preclude plaintiff-appellant's wrongful death claim. As a result, the trial court erred in granting defendants-appellees' motion for summary judgment."
The undisputed facts which are relevant to the issues raised on appeal are as follows. On January 30, 1994, appellant Judy Opial's husband, John, became ill. Judy, a registered nurse, suspected that her husband was having a heart attack and summoned the Rossford Emergency Medical Service ("EMS") unit. Rossford EMS personnel were unable to revive John through cardiopulmonary resuscitation, and he died. The parties agree that the EMS unit was not equipped with a defibrillator, a device which sends electric shocks to the heart to revive it.
On January 30, 1995, appellants filed the complaint herein against appellees the city of Rossford; the Mayor of Rossford, Mark G. Zuchowski; city Councilpersons Robert Watrol, Walter Fedal, Pat Carson, Molly Jukubec, and James Richards; and "John or Jane Doe," in which they alleged that (1) John Opial's death was proximately caused by appellees' "reckless, negligent and/or willful acts" of not equipping the EMS vehicle with a defibrillator; (2) appellees mads"false and misleading representations" that the Rossford EMS unit would respond promptly with "advanced life saving equipment sufficient to properly handle a cardiac arrest"; and (3) appellees' failure to equip the EMS unit with a defibrillator violated R.C. Chapter 1345, the Ohio Consumer Sales Practices Act. On March 16, 1995, appellees filed an answer in which they asserted as an affirmative defense that appellants' claims "are barred by the doctrine of sovereign immunity pursuant to Ohio Revised Code Section 2744.01, etc."
On December 7, 1995, appellees filed a motion for summary judgment and memorandum in support thereof, in which they argued that (1) " ll decisions regarding the acquisition of equipment were made in good faith," and (2) they are immune from suit pursuant to R.C. 2744.02(A). In support thereof, appellees relied on the affidavit of Robert P. Watrol, President of the Rossford City Council, in which he stated that (1) appellees never "affirmatively made a decision not to acquire defibrillatory"; (2) appellees relied on the recommendations of the city fire chief and city medical director in deciding what equipment to purchase for the Rossford EMS; (3) at the time of John Opial's death, the Rossford EMS unit "was not licensed for Advanced Life Support"; and (4) appellees made "all decisions regarding the acquisition of equipment for the EMS * * * in good faith and not for any malicious purpose."
On January 5, 1996, appellants filed a "BRIEF IN OPPOSITION TO [APPELLEES'] MOTION FOR SUMMARY JUDGMENT AND MOTION FOR SUMMARY JUDGMENT" and a memorandum in support thereof, in which they argued that (1) appellees are not immune because R.C. Chapter 2744 is inapplicable in this case; (2) appellees had a "public duty" to equip the Rossford EMS unit with defibrillatory; (3) even if R.C. 2744.02(A) applies, appellees' actions are excepted from immunity pursuant to R.C. 2744.02(B)(4); and (4) alternatively, appellees are not immune from liability pursuant to R.C. 2744.03(A) b
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