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Lewis v. Cleveland8/2/1993
PATTON, Presiding Judge.
Plaintiff-appellant Sherry Lewis ("appellant") appeals from a summary judgment entered in favor of defendant-appellee city of Cleveland ("the city"). The allegations in appellant's complaint alleged that she suffered personal injury , damages and losses as a direct and proximate result of a collision with a city fire truck on November 20, 1989.
The city's motion for summary judgment was premised upon the immunity granted to the city under the Political Subdivision Tort Liability Act ("the Act"), R.C. Chapter 2744. That section applies to causes of action against political subdivisions or their employees for injuries to persons on or after November 20, 1985. Specifically, the city's motion contended that R.C. 2744.02(B)(1)(b) barred appellant's cause of action since the city's fire truck was responding to a fire alarm at the time of the collision.
Appellant, in her brief in opposition to the city's motion for summary judgment, argued that R.C. 2744.02(B)(1)(b) violates Section 16, Article I of the Ohio Constitution and the equal protection and substantive due process guarantees of the United States Constitution. The appellant's brief in opposition did not dispute the facts as developed by the city in its motion for summary judgment.
Summary judgment was entered in favor of the city. The instant appeal followed.
Appellant raises one assignment of error which provides:
"The trial court erred in granting defendant-appellee immunity under Revised Code 2744.02(B)(1)(b) and consequently erred in granting defendant-appellee's motion for summary judgment because Revised Code 2744.02(B)(1)(b) is unconstitutional."
Summary judgment shall not be rendered unless there is no genuine issue as to any material fact, and reasonable minds can come to but one conclusion, which is adverse to the nonmoving party. Toledo's Great Eastern Shoppers City, Inc. v. Abde's Black Angus Steak House No. III, Inc. (1986), 24 Ohio St.3d 198, 201, 24 OBR 426, 428, 494 N.E.2d 1101, 1103; Civ.R. 56(C). Accordingly, an order granting summary judgment will be upheld where, construing the evidence most strongly in favor of the nonmoving party, the record discloses no genuine issue of material fact, and that the moving party is entitled to judgment as a matter of law. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O.3d 466, 471, 364 N.E.2d 267, 273.
R.C. 2744.02 provides in relevant part:
"(B) Subject to sections 2744.03 and 2744.05 of the Revised Code, a political subdivision is liable in damages in a civil action for injury, death, or loss to persons or property allegedly caused by an act or omission of the political subdivision or of any of its employees in connection with a governmental or proprietary function as follows:
"(1) Except as otherwise provided in this subdivision, political subdivisions are liable for injury, death, or loss to persons or property caused by the negligent operation of any motor vehicle by their employees upon the public roads, highways, or streets when the employees are engaged within the scope of their employment and authority. The following are full defenses to such liability:
"* * *
"(b) A member of a municipal corporation fire department or any other firefighting agency was operating a motor vehicle while engaged in duty at a fire, proceeding toward a place where a fire is in progress or is believed to be in progress, or in answering any other emergency alarm and the operation of the vehicle did not constitute willful or wanton misconduct[.]"
Therefore, under the Act, a politi
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