The parents of a Hamilton County firefighter can proceed with their wrongful death lawsuit against the maker of an emergency radio and homeowners growing marijuana in the basement where the accident occurred, an Ohio appeals court ruled.

The First District Court of Appeals last week reversed the ruling of a trial court that dismissed the lawsuit of Donald and Arlene Zang, the parents of Colerain Township Fire Department Captain Robin Broxterman who died battling a house fire in 2008. Broxterman, a 17-year- veteran, and Brian Schira, a five-month rookie on the force, died from smoke inhalation after the first floor collapsed and they fell into the basement.

The Zangs filed a wrongful death lawsuit in May 2012 against homeowners Matthew and Sharyn Cones, who were growing marijuana in a secret room in their basement where they also grew orchids. The family also sued Motorola Inc., makers of the emergency radios Colerain Township uses, and Morning Pride, LLC, makers of the fire protective gear the township firefighters wear. In April 2014, the trial court granted summary judgment to all defendants, ruling the Zangs failed to prove the firefighting products were defective and that the Cones were immune from a civil lawsuit by firefighters.

Writing for the First District, Judge Sylvia S. Hendon wrote the trial court wrongfully agreed with the Coneses’ use of the “Firefighter’s Rule” that Ohio courts established to find owners of private property are not liable to firefighters injured while on their premises performing their official duties. Citing the Ohio Supreme Court’s 1996 Hack v. Gillespie, Judge Hendon found the immunity does not apply if the injury is caused by the property owner’s “willful or wanton misconduct or affirmative act of negligence.” She found the Zangs have a right to argue in court that the Coneses’ conduct could be considered willful or wanton.

Broxterman, Schira, and Michael Vadnais responded to an early morning fire at the Coneses’ house. The three entered the home without water in the hose and Broxterman used her radio to transmit a request for water, which was heard by Vadnais and the battalion chief on site but not the firefighter controlling the hydrant. Vadnais testified he saw Broxterman “messing” with her radio as he passed her to get more hose line. After hearing Broxterman’s radio transmit a “busy” signal, Vadnais heard her yell “mayday” three times into the phone.

Vadnais was able to transmit a successful request for water. As the water came on, he saw the kitchen walls were on fire and Broxterman lying on the kitchen floor trying to work her radio. Vadnais attempted to go toward the basement to put out the fire, but Broxterman grabbed him and ordered him to leave the house. Fire investigators believe Broxterman and Schira fell into the basement when the fire caused the first floor to collapse.

The Coneses told investigators they grew orchids in the basement using grow lights and had a plastic fan in the room for ventilation. It was determined that the fan for the orchids malfunctioned and ignited the fire. The Coneses also had hired a relative who was a handyman to construct two secret small rooms for growing marijuana with additional electrical outlets for the equipment to cultivate the plants. The Coneses testified that only they and the handyman knew of the rooms.

After the fire, Colerain Township conducted a lengthy investigation into the fire and found several factors contributed to the deaths including a delay in departing for the house as the dispatcher believed it might have been a false alarm, a delay in finding the house, and failure by the firefighters to follow “fundamental firefighter self-rescue and survival concepts.” It also faulted the communications equipment and use of the protective gear.

The Zangs contend the emergency call button on the radio is defective because it is too small and it is recessed slightly below the surface of the radio to prevent accidental presses. Because of its size and fit, it was not possible for Broxterman to push the button with protective gear on. Motorola disputed the claim and presented the trial court with expert opinions that showed the button can be pushed with gloves and that records indicate Broxterman never actually sent a distress call. Moreover, citing the township investigation, it argued that the other failures by the firefighters, not the failure of the emergency button caused their death.

Judge Hendon noted the investigators found Broxterman thought she had pushed the button, and an expert witness told the trial court that when they found her body, she had one glove off. The expert believes she removed it because she could not push the button with it on. Judge Hendon concluded there is enough of a dispute regarding whether the button was defectively designed, whether it was pushed, and if pushing it would have led to a rescue to argue during a trial.

Judge Hendon upheld the dismissal of the case against Morning Pride finding the Zangs offered no evidence to contradict the company’s claim that all its equipment met national standards for safety and had warning labels on its cautioning that even when fully used as specified, there is a risk of death.

As to the Coneses, Judge Hendon found Matthew Cones in his pre-trial deposition explained that grow lights were on 12 to 18 hours a day and a fan was used to disperse the smell of marijuana. He also could not recall if he asked the handyman to obtain the necessary permits to complete the electrical and construction work.

Judge Hendon found the growing of the orchids could be viewed as a ruse to keep people from discovering the marijuana. She wrote that the orchids and the marijuana could be viewed as “part and parcel of the same criminal enterprise,” and that a fire caused by the fan cooling the orchid lights could be connected to the growing of marijuana. The illegal cultivation coupled with the failure to obtain the adequate permits could be viewed as “willful and wonton conduct” and a trial should be conducted to determine if the Firefighter’s Rule applies.

Judges Patrick F. Fischer and Peter J. Stautberg concurred.

Zang v. Cones, 2015-Ohio-2530
http://www.supremecourt.ohio.gov/rod/docs/pdf/1/2015/2015-Ohio-2530.pdf
Civil Appeal From: Hamilton County Common Pleas Court
Judgment Appealed From Is: Reversed
Date of Judgment Entry on Appeal: June 26, 2015

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