Family Awarded $350K in Fatal OH Apparatus Crash

CANTON - The city has reached a $350,000 settlement in a lawsuit stemming from a fatal auto crash involving a firetruck.

Dale Burlingame was killed and his wife, Grace, seriously injured in the crash about nine years ago on Cleveland Avenue NW. The legal saga has spanned numerous legal challenges and disputes, bouncing from Stark County Common Pleas Court to the 5th District Court of Appeals to the Ohio Supreme Court and back to the trial court.

Canton City Council approved the mediated settlement on first reading Monday night; for payments to take effect, the agreement must be finalized by Stark County Probate Court.

In July 2007, Dale and Grace Burlingame had just celebrated their 53rd wedding anniversary, when Dale turned their van onto Cleveland Avenue NW from 18th Street and it was struck by a firetruck. The firefighter who drove the truck said in a deposition and during the case that he thought the traffic light was green, according to the city law department. The truck's siren wasn't working but the driver used the air-horn to alert motorists and the emergency lights were activated, according to the city.

Grace and her husband's estate sued the city in 2009.

"It was a very long, arduous fight for the family," said attorney Elizabeth Burick, who represented Grace Burlingame's estate. "But we're glad it's resolved and everybody can move forward. There's no happiness for either side, but there's happiness to finally have closure."

Kevin L'Hommedieu, of the city law department, said he believed the city had "a very strong argument under the law, but at the same time we have to manage risk; we have to spend taxpayer money wisely and we thought this was a way to effectively manage risk."

In a letter to City Council, Law Director Joseph Martuccio said the crash is a "tragic and unfortunate incident for all concerned, and this is a fair and reasonable settlement considering all the circumstances."

Settlement terms

According to city records, the settlement breaks down like this:

$40,000 will be paid by the insurance carrier for Mr. Burlingame.

The city and its insurer are paying the estate of Mrs. Burlingame a total of $310,000 ($125,000 in city funds will cover the deductible). Most of the $310,000 will be paid to Mrs. Burlingame's estate; a small portion is for burial-related expenses for Mr. Burlingame and fees paid to the attorney who represented his estate, said Kristen Bates Aylward, of the law department.

Roughly $100,000 will reimburse Medicare for some of Grace Burlingame's medical care-related expenses, said Bates Aylward.

Long legal road

The legal road for the case has been long and winding. Common Pleas Judge Frank Forchione initially ruled that the city was immune from the claim because the firefighter was driving the truck as part of his official duties. The plaintiffs appealed, arguing the city wasn't entitled to immunity because the firefighter didn't stop at a red light, as required by the city's policy and the traffic code.

The 5th District Court of Appeals reversed Forchione's ruling in 2011, saying the case should have been presented to a jury. The city appealed the ruling to the Ohio Supreme Court. L'Hommedieu, of the city law department, argued that internal policies and traffic laws can't be considered when ruling on immunity. If the 5th District ruling stood, he said, cities and other political subdivisions would eliminate their policies that hold firefighters to a higher standard than state law rather than expose local governments to greater liability.

Grace Burlingame died after the lawsuit was filed. Before the Ohio Supreme Court, Burick had argued that adopting the city's argument would preclude those types of cases from reaching trial. Eventually, the case was sent back to Common Pleas Court.

The Canton case was one of two involving firetrucks in Stark County that reached the state's high court. The other was a 2008 Massillon crash that killed 72-year-old Ronald E. Anderson and his 4-year-old stepgrandson, Javarre J. Tate. That case moved from Common Pleas Court to both the 5th District and Ohio Supreme Court twice, and then back to Common Pleas after a Stark County judge first ruled that the city and its firefighters were immune to prosecution. The lawsuit was settled in February.

Reach Ed at 330-580-8315

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