[Cite as Johnson v. Cleveland, 194 Ohio App.3d 355, 2011-Ohio-2152.] 

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 95688

JOHNSON,

APPELLEE,

v.

CITY OF CLEVELAND ET AL.,

APPELLANTS.

JUDGMENT: 

REVERSED

Civil Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CV-676734 

BEFORE: S. Gallagher, J., Celebrezze, P.J., and Jones, J. 

RELEASED AND JOURNALIZED: May 5, 2011 
Friedman, Domiano & Smith Co., L.P.A., Jeffrey H. Friedman, David R. Grant, 

Donna Kolis, and Stephen S. Vanek, for appellees. 

Robert J. Triozzi, Cleveland Director of Law, L. Stewart Hastings, Chief Assistant 

Director of Law, and William F. Gibson and Ami J. Patel, Assistant Directors of Law, for 

appellant. 

SEAN C. GALLAGHER, Judge. 

{¶ 1} Defendants-appellants the city of Cleveland, Shanna Stosak, Tracy 

McArthur, and Renee O’Neill appeal the decision of the Cuyahoga County Court of 

Common Pleas that denied their motion for summary judgment, which asserted 

political-subdivision immunity. Plaintiff-appellee Douglas Johnson filed a cross-appeal 

challenging the trial court’s denial of a motion to strike. For the reasons stated herein, 

we reverse the decision of the trial court on the summary-judgment ruling and enter 

judgment in favor of defendants-appellants on all claims. We also overrule the challenge 

raised in the cross-appeal. 

{¶ 2} On November 18, 2007, Johnson’s girlfriend, Carine Gabriel, called 9-1-1 

after Johnson smoked a cigarette laced with PCP. The call was categorized as an 

overdose/poisoning/ingestion. Gabriel and Johnson were located at a two-story 

residential building at 241 East 156th Street in Cleveland. 

{¶ 3} Stosak and McArthur are employed as emergency medical technicians 

(“EMTs”) with the Division of Emergency Medical Services (“EMS”) for the city of 
Cleveland. McArthur, an EMT-basic, and Stosak, an EMT-paramedic, were in the 

responding EMS unit. The police were also dispatched to the scene. 

{¶ 4} When the EMS unit arrived, Gabriel informed the EMTs that Johnson had 

accidentally smoked PCP and that he needed their help. She did not inform the EMTs of 

the amount of drugs Johnson had ingested. She told the EMTs that she did not know 

whether Johnson was violent or not. She later stated during her deposition that she had 

no reason to believe that Johnson was attempting to hurt himself. 

{¶ 5} In the meantime, Johnson walked down the driveway in a normal manner. 

According to Stosak, Johnson stated in a clear voice that he did not call EMS, he seemed 

a little agitated that EMS was there, and he walked away. According to Gabriel, Johnson 

never spoke to the EMTs and he was “really quiet and just standing there one second and 

the next minute he was gone.” Johnson recalled that an ambulance was there and that he 

walked down and turned around; however, he did not remember saying anything. The 

EMTs were unable to physically examine Johnson or obtain his vitals. After Johnson 

walked away, Stosak called to cancel the call for the Cleveland police. 

{¶ 6} Stosak admitted that Johnson did not run away, that they knew where he 

went, and that they could have followed him and assessed him. However, Stosak’s 

visual evaluation of Johnson did not cause her alarm because there were no signs of 

obvious distress or injury, he did not show any signs of wanting to be treated, and he 

appeared normal. Stosak did not find any reason to believe that the scene was unsafe, 
and she found nothing to indicate that transport was necessary. According to McArthur, 

there was no indication that Johnson had an altered mental status. 

{¶ 7} Gabriel then went to check on Johnson. She did not ask the EMTs to go 

inside. The EMTs continued to wait in the driveway. 

{¶ 8} Gabriel found Johnson “just sitting on the bed like this in our room quiet.” 

She does not remember exactly what she told the EMTs when she returned outside; 

however, she “might have told [Stosak] that [Johnson] was just sitting there.” According 

to Stosak, Gabriel informed her that Johnson appeared to be calming down. Gabriel 

asked the EMTs to continue to wait and make sure Johnson was all right. 

{¶ 9} The EMTs informed Gabriel that they could not continue to stand around 

waiting, but that if anything were to change to call back and they would transport 

Johnson. Stosak called her supervisor, Captain Renee O’Neill, and informed O’Neill 

that Johnson came outside, appeared fine, did not want to be seen, and went back in the 

house. Stosak also told O’Neill that Gabriel came back out of the house and told the 

EMTs that Johnson appeared to be calming down. Gabriel disputes that she made such a 

statement. Relying on the information provided and because the patient had gone back 

inside, O’Neill gave Stosak permission not to transport Johnson as a “refusal special 

circumstance” and approved the EMTs to go back into service. O’Neill states in her 

affidavit that she found “no reason to believe a plan for safety at the scene for [Johnson] 

or others was necessary.” 
{¶ 10} The EMTs were at the address for approximately 21 minutes before they 

left. There is no evidence that Johnson’s condition worsened before they left. The EMS 

run report indicates that it was reported that Johnson took a hit of PCP by accident and 

started to act a little strange, that his girlfriend got scared and called 9-1-1, and that 

Johnson refused any help from EMS and walked away. An addendum was added to the 

report later the same date, indicating that Johnson’s girlfriend had gone back into the 

house to check on him and reported that he “seem[ed] like he [was] calming down” and 

“she felt he would be okay.” These statements are disputed by Gabriel. 

{¶ 11} Gabriel proceeded to call Johnson’s mother and one of his friends. Both 

indicated at deposition that when they spoke to Johnson on the phone, they were 

concerned. Gabriel stated that she told Johnson’s mother that “he had smoked the PCP 

and that [Gabriel] called emergency and that he was calm now. And I didn’t want her to 

worry so I told her it’s going to be okay.” Gabriel also stated that “he was calm. He 

was definitely calm and talking quietly.” 

{¶ 12} Approximately 11 minutes after EMS left the scene, they were called back 

to the same residence for a “psychiatric/suicide attempt.” Johnson had jumped off a 

second-story porch and seriously injured himself. The EMS unit arrived quickly. 

Stosak and McArthur immobilized Johnson, assessed his vital signs, and transported him 

to Huron Road Hospital. Johnson was treated for fractures of multiple thoracic 

vertebrae, multiple rib fractures, and bilateral pneumothoraxes. He was permanently 

paralyzed from the waist down. 
{¶ 13} Johnson filed this action against the city of Cleveland and EMS employees 

Stosak, McArthur, and O’Neill1

 (collectively, “the defendants”). After discovery was 

completed, the defendants filed a motion for summary judgment, seeking dismissal of all 

claims on immunity grounds. In opposing the motion, Johnson submitted deposition 

transcripts and two expert affidavits. The city filed a reply brief that included the 

affidavit of the defendants’ expert witness. Johnson filed a motion to strike the affidavit 

and was granted leave to file a surreply brief. The trial court denied the motion to strike 

and denied the motion for summary judgment, finding that “there is an issue of fact as to 

whether the acts or alleged failure to act by defendants constitutes willful and wanton 

misconduct and whether such failures proximately caused [Johnson’s] injuries.” This 

appeal and cross-appeal followed. 

{¶ 14} Initially, we recognize that this court’s appellate jurisdiction is confined to 

reviews of final, appealable orders within the meaning of R.C. 2505.02. See Article IV, 

Section 3(B)(2), Ohio Constitution; R.C. 2505.03. The defendants’ appeal challenges 

the trial court’s denial of their motion for summary judgment, which asserted 

political-subdivision immunity. The Ohio Supreme Court has held that “[w]hen a trial 

court denies a motion in which a political subdivision or its employee seeks immunity 

under R.C. Chapter 2744, that order denies the benefit of an alleged immunity and is 

therefore a final, appealable order pursuant to R.C. 2744.02(C).” Hubbell v. Xenia, 115 

 1

 O’Neill was added as a defendant in the second amended complaint. We note that her 

name also appears in the record as Renee O’Neil.
Ohio St.3d 77, 2007-Ohio-4839, 873 N.E.2d 878, at syllabus. Therefore, we have 

jurisdiction to consider the defendants’ appeal. 

{¶ 15} Johnson’s cross-appeal challenges the trial court’s order denying his motion 

to strike defendants’ expert affidavit. This ruling pertains to evidence submitted with the 

summary-judgment pleadings in support of the immunity claim. Furthermore, a decision 

by this court in favor of immunity would effectively deny any “meaningful review” of the 

issue. Because the ruling is inextricably intertwined with an appealable order and must 

be decided to ensure “meaningful review,” we find that this court has jurisdiction to 

consider the cross-appeal. See Huffman v. Pioneer Basement Water Proofing Co., Inc., 

Tuscarawas App. No. 2007 AP 08 0048, 2008-Ohio-7032 (trial court’s order striking 

affidavit was a final, appealable order because it was part and parcel of the trial court’s 

decision granting summary judgment). 

{¶ 16} Defendants’ first and second assignments of error provide as follows: 

{¶ 17} “1: [The] trial court erred in denying immunity to all defendants under 

Ohio Revised Code Chapter 2744 and Ohio Revised Code 4765.49. 

{¶ 18} “2: [The] trial court erred in finding that an issue of fact existed as to 

whether defendants’ actions or alleged failure to act constituted willful and wanton 

misconduct.” 

{¶ 19} This court must conduct a de novo review of a trial court’s decision 

overruling a motion for summary judgment in which a political subdivision or its 

employee seeks immunity. Hubbell, 115 Ohio St.3d 77, 2007-Ohio-4839, 873 N.E.2d 
878, ¶ 21. “If, after that review, only questions of law remain, the court of appeals may 

resolve the appeal. If a genuine issue of material fact remains, the court of appeals can 

remand the case to the trial court for further development of the facts necessary to resolve 

the immunity issue.” Id. 

{¶ 20} R.C. 4765.49 specifically grants immunity to emergency-service personnel 

and their municipal employers from tort claims based on their administration of 

emergency medical services “unless the services are administered in a manner that 

constitutes willful or wanton misconduct.” R.C. 4765.49(A) provides that “[a] first 

responder, emergency medical technician-basic, emergency medical 

technician-intermediate, or emergency medical technician-paramedic is not liable in 

damages in a civil action for injury, death, or loss to person or property resulting from the 

individual’s administration of emergency medical services, unless the services are 

administered in a manner that constitutes willful or wanton misconduct.” Similarly, R.C. 

4765.49(B) provides that a “political subdivision * * * that provides emergency medical 

services * * * is not liable in damages in a civil action for injury * * * arising out of any 

actions taken by a first responder, EMT-basic, EMT-I, or paramedic * * * unless the 

services are provided in a manner that constitutes willful or wanton misconduct.” 

{¶ 21} We also recognize that R.C. Chapter 2744 affords a general grant of 

immunity to political subdivisions. R.C. 2744.02(A)(1) provides that political 

subdivisions generally are not liable in damages for injuries resulting from an act or 

omission of the political subdivision or an employee thereof in connection with a 
“governmental function,” which is defined under R.C. 2744.01(C)(2)(a) to include the 

provision or nonprovision of emergency medical, ambulance, and rescue services. R.C. 

2744.02(B) sets forth specific exceptions to the general grant of immunity. The only 

relevant exception herein is R.C. 2744.02(B)(5), which provides that a political 

subdivision is liable “when civil liability is expressly imposed upon the political 

subdivision by a section of the Revised Code.” As discussed above, liability is not 

imposed upon a political subdivision that provides emergency medical services or first 

responders pursuant to R.C. 4765.49, unless there is “willful or wanton misconduct.”2

 

When a plaintiff has not shown that a specific exception to immunity under R.C. 

2744.02(B) applies, a court need not move on to consider the defenses and immunities 

provided under R.C. 2744.03. Widen v. Pike Cty., 187 Ohio App.3d 510, 

2010-Ohio-2169, 932 N.E.2d 929, ¶ 13. 

{¶ 22} Thus, we must consider whether the evidence in this case, when viewed 

most strongly in Johnson’s favor, reasonably supports a finding of willful and wanton 

misconduct. The Ohio Supreme Court has defined “willful” misconduct as “conduct 

involving an intent, purpose or design to injure” and “wanton” misconduct as “conduct 

where one ‘ “fails to exercise any care whatsoever toward those to whom he owes a duty 

 2

 As recognized in Fuson v. Cincinnati (1993), 91 Ohio App.3d 734, 633 N.E.2d 612: 

“Because R.C. 3303.21 [now codified under R.C. 4765.49] pertains specifically to emergency medical 

services and, further, limits the immunity of a political subdivision and its emergency employees to 

cases not involving willful and wanton misconduct, it is reconcilable with R.C. 2744.02(B), and we 

must, accordingly, address whether the evidence in this case reasonably supports a conclusion that the 

[defendants] engaged in willful and wanton misconduct.” 
of care, and [t]his failure occurs under circumstances in which there is a great probability 

that harm will result.” ’ ” Zivich v. Mentor Soccer Club, Inc. (1998), 82 Ohio St.3d 367, 

375, 696 N.E.2d 201, quoting McKinney v. Hartz & Restle Realtors, Inc. (1987), 31 Ohio 

St.3d 244, 246, 31 OBR 449, 510 N.E.2d 386, quoting Hawkins v. Ivy (1977), 50 Ohio 

St.2d 114, 4 O.O.3d 243, 363 N.E.2d 367, syllabus. The standard for showing “wanton” 

misconduct is high and requires more than mere negligence. Fabrey v. McDonald 

Village Police Dept. (1994), 70 Ohio St.3d 351, 356, 639 N.E.2d 31. The evidence must 

establish a disposition to perversity “under such conditions that the actor must be 

conscious that his conduct will in all probability result in injury.” Id. 

{¶ 23} In this case, the record demonstrates that the EMTs responded to the scene 

and were informed that Johnson had “accidentally” smoked PCP, but were not informed 

of the amount of drugs Johnson actually had ingested or of any violent behavior. 

Johnson did not call EMS, and no family members were present. Johnson walked down 

the driveway in a normal manner, did not show any signs of injury or distress or an 

altered mental status, and went back into the residence without providing the EMTs with 

an opportunity to physically examine him. The EMTs found no cause for alarm, no 

reason to believe the scene was unsafe, and no need to transport Johnson. Consistent 

therewith, the EMTs canceled the call to the police. 

{¶ 24} The EMTs proceeded to wait in the driveway while Johnson’s girlfriend 

went to check on him. Gabriel did not invite the EMTs into the residence, and she 

informed the EMTs that he was sitting quietly on his bed. She stated in her deposition that 
she had no reason to believe that Johnson was attempting to hurt himself. There is no 

evidence that Johnson’s condition worsened in the approximately 21 minutes that the 

EMTs were on the scene. 

{¶ 25} Before leaving, the EMTs informed Gabriel that if anything changed, she 

should call back and they would transport Johnson. The EMTs called Captain O’Neill, 

who authorized the EMTs not to transport Johnson as a “refusal special circumstance” 

and approved them to go back into service. Upon returning to the scene on the second 

run, the EMTs immobilized Johnson, who had jumped from the second-story porch, and 

transported him to the hospital. 

{¶ 26} We do not find, when construing the evidence most strongly in Johnson’s 

favor, that reasonable minds could find that the actions of the emergency personnel rose 

to the level of willful or wanton misconduct. There have been several similar cases in 

which courts have found a lack of evidence to show willful or wanton misconduct. See 

Wright v. Hamilton (2001), 141 Ohio App.3d 296, 750 N.E.2d 1190 (record fell short of 

establishing willful or wanton misconduct when there was no evidence that paramedics 

were aware of any great probability of harm to a defendant who presented as feeling dizzy 

and not acting like herself and later suffered a stroke); Denham v. New Carlisle (2000), 

138 Ohio App.3d 439, 741 N.E.2d 587 (failure to perform certain procedures and to 

transport person to the hospital was not willful or wanton misconduct when emergency 

personnel had no reason to believe that he suffered from anything other than severe 

intoxication); Fuson, 91 Ohio App.3d 734 (no willful or wanton misconduct when 
emergency personnel failed to transport an individual with a head injury who later died). 

We cannot say that the record herein warrants a different result. 

{¶ 27} The expert opinions submitted by Johnson discuss the failure of the EMS 

employees to follow protocol and to exercise the appropriate standard of care. While this 

may well have amounted to negligent conduct, it did not rise to the level of willful or 

wanton misconduct. The legal conclusions reached by the experts do not alter the 

outcome in this case. See Mitchell v. Norwalk Area Health Serv., Huron App. No. 

H-05-002, 2005-Ohio-5261 (disregarding experts’ legal conclusions of willful and 

wanton misconduct); Denham, 138 Ohio App.3d 439 (record did not support a claim of 

willful or wanton misconduct despite expert’s legal conclusion). 

{¶ 28} There is insufficient evidence that the EMS employees engaged in willful 

misconduct, involving an intent, purpose, or design to injure Johnson. Nor does the 

record demonstrate that they failed to exercise any care whatsoever to Johnson, and the 

circumstances do not evince that any special duty arose. The paramedics timely 

responded to the scene, visually assessed Johnson before he walked away, continued to 

wait on the scene without any cause for alarm, and informed Gabriel to call back if 

anything changed. Further, the record does not support a finding that the EMS 

employees should have been aware, under the circumstances, that there was any great 

probability that harm would result or that they perversely disregarded a known risk. 
{¶ 29} There is no doubt that the resulting injury in this case was tragic. 

However, there is simply a lack of evidence from which reasonable minds could find 

willful and wanton misconduct by the EMS employees. 

{¶ 30} Accordingly, we find that the defendants are entitled to immunity under 

R.C. 4765.49 and that none of the exceptions to the general grant of immunity under R.C. 

Chapter 2744 apply. The first and second assignments of error are sustained. 

{¶ 31} Because of our disposition of the first two assignments of error, we need 

not address defendants’ third and fourth assignments of error, which pertain to proximate 

cause of injury and plaintiff’s expert opinions.3

 We sustain defendants’ fifth assignment 

of error and find that the city is entitled to immunity on the claims of negligent hiring, 

retention, and supervision of EMS personnel pursuant to R.C. 2744.02(A) and that none 

of the enumerated exceptions under R.C. 2744.02(B) apply. Even if an exception were 

to apply, the defenses under R.C. 2744.03(A)(3) and (5) warrant immunity for such 

discretionary acts. See Fuller v. Cuyahoga Metro. Hous. Auth., Cuyahoga App. No. 

92270, 2009-Ohio-4716. 

{¶ 32} In their sixth assignment of error, defendants assert that the trial court 

should have dismissed plaintiff’s claim that the applicable immunity provisions are 

unconstitutional. The Ohio Supreme Court has upheld the constitutionality of R.C. 

Chapter 2744. See O’Toole v. Denihan, 118 Ohio St.3d 374, 2008-Ohio-2574, 889 

 3

 We further note that the issue of proximate cause is independent of the immunity claim that 

is before us for review. 
N.E.2d 505, ¶ 95; Fahnbulleh v. Strahan (1995), 73 Ohio St.3d 666, 653 N.E.2d 1186. 

At least one other court has rejected constitutional challenges to R.C. 4765.49. See 

Dickman v. Elida Community Fire Co. (2001), 141 Ohio App.3d 589, 592, 752 N.E.2d 

339. Therefore, the constitutionality challenge does not defeat an award of summary 

judgment herein. 

{¶ 33} Finally, we address Johnson’s cross-appeal. In his sole assignment of 

error, Johnson argues that the trial court erred by denying his motion to strike the affidavit 

of defendants’ expert, Dr. Jonathan Glauser, which was submitted with defendants’ reply 

brief. Johnson was provided with Dr. Glauser’s expert report during discovery, and his 

affidavit was consistent therewith. The trial court allowed Johnson an opportunity to 

respond with a surreply brief, and there has been no showing of prejudice. We conclude 

that the trial court did not abuse its discretion in denying Johnson’s motion to strike. 

Even if the trial court had committed error in admitting and considering the affidavit, that 

error was harmless. Accordingly, we overrule Johnson’s assignment of error. 

Judgment reversed. 

JONES, J., concurs. 

CELEBREZZE, P.J., concurs in judgment only.