619 N.E.2d 442 | Ohio Ct. App. | 1992
This is an appeal from a judgment of the Court of Common Pleas of Henry County granting summary judgment in favor of defendants-appellees, Douglas R. *137 Kohlhorst ("Kohlhorst") and B.A. Miller Sons Trucking, Inc. ("Miller"), and against plaintiff-appellant, Diana Almanza.
On October 25, 1985, an automobile driven by appellant collided with a tractor-trailer owned by Miller and driven by its employee, Kohlhorst, at the intersection of Huddle Road and State Route 108 in Napoleon, Henry County, Ohio. Appellant was severely injured as a result of the accident.
On October 4, 1990, appellant filed this action against appellees seeking recovery for her personal injuries, pain and suffering, lost wages, medical expenses and property damage. In her complaint, appellant alleged that she was of unsound mind at the time the cause of action accrued and continued to be of unsound mind for a period in excess of three years thereafter.
In their motion for summary judgment, appellees' claims which are pertinent to this appeal are that (1) Kohlhorst neither had nor breached a duty to appellant since Kohlhorst had the right of way; (2) any negligence on the part of Kohlhorst was not the proximate cause of appellant's injuries; (3) appellant's contributory negligence barred her claim as a matter of law because her negligence was greater than that of Kohlhorst; and (4) appellant's claim was barred by the statute of limitations, which statute was not tolled because appellant was never adjudicated as being of unsound mind nor was she ever confined in an institution or hospital under a diagnosis of unsound mind.
In granting summary judgment in favor of appellees, the trial court relied on the second paragraph of R.C.
The trial court found appellant's reliance on the first paragraph of R.C.
Appellant now appeals the trial court's granting of summary judgment in favor of appellees and sets forth four assignments of error, the first of which is:
"The lower court erred in holding that Diana Almanza's action is barred by the applicable statute of limitations."
Pursuant to R.C.
The first paragraph of R.C.
Appellees argue that appellant's disability, if any, arose after the cause of action accrued and, therefore, paragraph two of R.C.
The term "of unsound mind," as defined in R.C.
Ohio courts have apparently not addressed directly the issue of tolling a statute of limitations for a disability occurring simultaneously with the accrual of a cause of action. InBowman v. Lemon (1926),
The plaintiff in Bowman asserted that he was entitled to a tolling of the statute pursuant to G.C. 11229, which is identical to paragraph one of R.C.
The court in Bowman held that, if a plaintiff claims entitlement to a tolling of the statute of limitations due to unsoundness of mind, he or she has "the burden *139
of proving that he was suffering from some species of mental deficiency or derangement, so as to be unable to look into his affairs, properly consult with counsel, prepare and present his case and assert and protect his rights in a court of justice; such issue should be submitted to the jury, the same as any other issue of fact in the case." Id. at paragraph three of the syllabus. See, also, Lowe v. Union Trust Co. (1931),
Appellant argues that, had the legislature intended to change the holding of Bowman, it would have done so when it amended R.C.
Summary judgment is proper only when the evidence and pleadings, viewed most strongly in favor of the party opposing such motion, reveal no genuine issue of material fact and reasonable minds could come to only one conclusion and that conclusion is adverse to such party. Civ.R. 56(C); and Temple v.Wean United, Inc. (1977),
Appellant's first assignment of error is sustained.
Appellant's second through fourth assignments of error are related and will be considered together. They are:
Second Assignment of Error:
"The lower court erred in holding that the negligence of Diana Almanza exceeded the negligence of Douglas Kohlhorst as a matter of law."
Third Assignment of Error:
"The lower court erred in holding that the conduct of Diana Almanza was the proximate cause of her injury."
Fourth Assignment of Error:
"The lower court erred in granting the motion of defendants for summary judgment."
The trial court, after holding that appellant's claim was barred by the statute of limitations, went on to discuss the issue of causation and held that, as a matter of law, appellant was more negligent than appellees and appellant's negligence was the proximate cause of her injury.
The evidence indicates that appellant was traveling east on Huddle Road and appellee Kohlhorst was traveling south on State Route 108. The point where the accident occurred is a T-intersection where the two roads meet. There is a stop *140 sign for traffic on Huddle Road but no traffic control device for traffic on State Route 108.
Kohlhorst testified by deposition that he was traveling at approximately thirty to thirty-five miles per hour when he saw appellant's car pull out in front of him. He applied the brakes, but was unable to avoid striking appellant's car. He testified that he did not see appellant's car until he was approximately twenty feet from it, even though his view of the intersection was unobstructed.
Appellant has no memory of the accident or events leading up to it and, therefore, cannot offer any direct testimony to contradict that of Kohlhorst. Appellant's accident reconstruction expert, Robert Kelly, submitted an affidavit expressing his opinion that Kohlhorst was traveling at approximately sixty-one miles per hour at the time he first applied his brakes (the speed limit is thirty-five miles per hour).
Despite the conflicting testimony contained in the affidavit of appellant's expert, the trial court found that "the undisputed negligence of Plaintiff exceeds any negligence attributable [to] the Defendants." While agreeing with the trial court's statement that "[t]he mere existence of a comparative negligence statute cannot be considered as requiring all such cases to be tried," we do not agree that, as a matter of law, appellant's negligence exceeded that of appellees in this case.
R.C.
R.C.
"* * * The right of a vehicle * * * to proceed uninterruptedly in a lawful manner in the direction in which it or he is moving in preference to another vehicle * * * approaching from a different direction into its or his path[.]"
Pursuant to this statute, Kohlhorst had the right of way if he was proceeding in a lawful manner. If Kohlhorst was not proceeding in a lawful manner, he lost his preferential status and the obligations of the two vehicles are governed by the rules of common law. Morris v. Bloomgren (1933),
Since there is conflicting evidence upon which reasonable minds could differ as to whether Kohlhorst was proceeding in a lawful manner, this case is not appropriate for summary judgment upon the issue of the fault attributable to each party and the proximate cause of the accident and appellant's injury.
Appellant's second, third and fourth assignments of error are sustained.
The judgment of the Common Pleas Court of Henry County is reversed and this cause is remanded for further proceedings consistent with this opinion.
Judgment reversedand cause remanded.
HADLEY, P.J., and SHAW, J., concur.