FOR SUMMARY JUDGMENT IS DE NOVO.3
{¶ 10} HOSTETTLER'S COMPLAINT ALLEGED HIS INJURY WAS DUE TO THE NEGLIGENCE OF COMMUNITY CARE. "IT IS FUNDAMENTAL THAT IN ORDER TO ESTABLISH A CAUSE OF ACTION FOR NEGLIGENCE, THE PLAINTIFF MUST SHOW (1) THE EXISTENCE OF A DUTY, (2) A BREACH OF DUTY, AND (3) AN INJURY PROXIMATELY RESULTING THEREFROM."4
{¶ 11} THE INITIAL QUESTION IN THIS MATTER IS WHAT DUTY COMMUNITY CARE OWED TO HOSTETTLER. THE PARTIES AGREE THAT THIS WAS A NON-EMERGENCY RUN. THUS, THE IMMUNITY PROVISIONS GIVEN TO EMERGENCY RESPONSE PERSONNEL UNDER R.C. 4765.49 ARE NOT AT ISSUE IN THIS MATTER. THEREFORE, THE MORE STRINGENT "WILLFUL AND WANTON MISCONDUCT" STANDARD IS NOT APPLICABLE TO THIS CASE.5
{¶ 12} THE NEXT INQUIRY IS WHETHER COMMUNITY CARE WAS ACTING AS A PRIVATE CARRIER OR A COMMON CARRIER DURING THE TRIP TO THE WADSWORTH HOSPITAL. "A `COMMON' CARRIER IS ONE WHO UNDERTAKES TO TRANSPORT PERSONS OR PROPERTY FROM PLACE TO PLACE, FOR HIRE, AND HOLDS ITSELF `"OUT TO THE PUBLIC AS READY AND WILLING TO SERVE THE PUBLIC INDIFFERENTLY."'"6 A "PRIVATE CARRIER IS ONE THAT UNDERTAKES BY SPECIAL AGREEMENT OR CONTRACT TO TRANSPORT A DEFINITE NUMBER OF PERSONS FOR A SPECIFIC UNDERTAKING."7 FOR EXAMPLE, A TAXI WOULD GENERALLY BE A COMMON CARRIER, WHILE A LIMOUSINE WOULD GENERALLY BE A PRIVATE CARRIER.8 COMMON CARRIERS ARE HELD TO THE HIGHEST DEGREE OF CARE.9 PRIVATE CARRIERS ARE HELD TO A LESS STRINGENT DUTY OF REASONABLE, ORDINARY CARE.10 THE CONVER COURT DID NOTE THAT WHAT IS "REASONABLE" MAY DEPEND ON THE GIVEN SITUATION.11
{¶ 13} THE SIXTH APPELLATE DISTRICT HELD THAT AN AMBULANCE WAS A PRIVATE CARRIER UNDER THE FACTS OF THE CASE BEFORE IT.12 HOWEVER, THE COURT ACKNOWLEDGED THERE WAS CASE LAW HOLDING AN AMBULANCE IS A COMMON CARRIER,13 AS WELL AS A PRIVATE CARRIER.14
{¶ 14} IT APPEARS COMMUNITY CARE WAS ACTING AS A PRIVATE CARRIER IN THE CASE SUB JUDICE. THE PURPOSE OF THE TRIP WAS TO TRANSPORT HOSTETTLER FROM CLEVELAND TO WADSWORTH. WHILE THERE IS NO EVIDENCE IN THE RECORD OF A CONTRACT TO DO SO, WE WILL ADDRESS THIS APPEAL ASSUMING COMMUNITY CARE WAS ACTING AS A PRIVATE CARRIER.
{¶ 15} HOSTETTLER CLAIMS THE GURNEY WAS NOT PROPERLY SECURED, AND, AS A RESULT, HE WAS EXCESSIVELY TOSSED AROUND IN THE AMBULANCE. THE TRIAL COURT CONCLUDED THAT HOSTETTLER DID NOT SUPPORT HIS CLAIM IN THIS REGARD. WE DISAGREE. IN HIS DEPOSITION, HOSTETTLER STATED "I AM NOT FOR SURE IF IT WAS SECURED TO THE FLOOR OR NOT BECAUSE I COULDN'T SEE." HOSTETTLER WAS NOT IN A POSITION TO SAY WITH CERTAINTY WHETHER THE GURNEY WAS SECURED, BECAUSE HE WAS STRAPPED TO THE GURNEY AND THE LATCHES WERE UNDERNEATH HIM. HE DID SAY THAT THE GURNEY "DIDN'T SEEM TO BE ROLLING TOO FAR." LATER IN THE DEPOSITION, HOSTETTLER STATED THAT HE WAS JERKED FORWARD AND BACKWARD AND SIDE TO SIDE. ALSO, HE STATED HE WAS MOVING SO MUCH THAT HE HAD TO BRACE HIMSELF BY GRABBING ON TO NEARBY CABINETS. TAKEN TOGETHER, THESE STATEMENTS