I
Donald Didier is appealing from a grant by the Common Pleas Court of Montgomery County, Ohio, of summary judgment in favor of appellee, Eric J. Johns, as well as its action overruling Dicker’s motion for summary judgment and a motion by him to strike the affidavit of A.L. Baldridge, the patrolman who investigated the accident that is the subject of this matter. The facts of the case are succinctly set forth in the opinion of Judge Gorman, as follows:
“On May 11, 1994, Plaintiff, Donald Didier, was operating his motorcycle east on Phillipsburg Union Road. Plaintiff was following a bus going the same direction as Plaintiff on Phillipsburg Union Road. Defendant, Eric J. Johns, was operating his motor vehicle west on Philkpsburg Union Road. It was approximately 7:15 a.m. and the day was clear and the road dry. It appears that after working a long shift at work, Defendant fell asleep behind the wheel of his car and Defendant’s ear crossed the center kne. The bus in front of Plaintiff was forced to stop quickly, and as a result, Plaintiff was required to stop quickly.
The trial court found that Didier was negligent per se in that he failed to keep an assured clear distance behind the school bus which he hit, a violation of R.C. 4511.21(A), and that it was therefore his negligence which caused his injuries. The court also overruled Didier’s motion to strike from the record an affidavit submitted by officer Baldridge, the policeman who investigated the accident, in which he stated that he had determined that Didier faded to maintain an assured clear distance, that the school bus did not suddenly appear in the path of Didier, and that the bus was reasonably discernible to Didier. The officer cited Didier for failing to maintain an assured clear distance and Didier paid the fine for that violation.
On appeal, Didier presents to us the following four assignments of error:
I
“The trial court erred in granting defendant/appellee’s motion for summary judgment by holding that plaintiff/appellant Donald Didier violated the assured clear distance statute, O.R.C. § 4511.21(A)[.]”
II
“The trial court erred in granting defendant/appellee’s motion for summary judgment by holding that any negligence of plaintiff/appellant Donald Didier was the sole and proximate cause of his injuries[.]”
III
“The trial court erred by overruling the motion for summary judgment of plaintiffs/appellants [. ]”
IV
“The trial [sic] erred by failing to strike the affidavit of officer A.L. Baldridge[.]”
II
On March 4, 1996, we advised both parties that the issue raised by the second assignment of error implicated the comparative negligence rule and needed further briefing. We also advised them that we were “strongly inclined” to overrule the other assignments of error — the first and third on the merits and the fourth as moot.
“Whether the violation of the assured clear distance rule, being negligence per se, must constitute the sole cause of the violator’s injuries, as a matter of law, or whether a jury question is raised regarding comparative negligence when the stoppage of the vehicle which is hit by the violator is caused by the negligence of a third party.”
The appellee timely filed a supplemental brief but, despite two extensions of time, the appellant failed to file a supplemental brief. The matter is now once again before us for a decision. We shall proceed by dealing with the first and third assignments together as they essentially involve the same issues.
III
Summary judgment is proper under Civ.R. 56 when the moving party establishes, first, that there is no genuine issue as to any material fact, second, that the moving party is entitled to judgment as a matter of law, and, third, that reasonable minds can come to but one conclusion, and that conclusion is adverse to the party against whom the motion is made, who is entitled to have the evidence construed most strongly in his favor.
Harless v. Willis Day Warehousing Co., Inc.
(1978),
IV
Didier first claims that the trial court erred by holding as a matter of law that the school bus ahead of him, which he struck, was discernible and that that issue should have been presented to a jury.
The elements that constitute a violation of Ohio’s assured clear distance statute, R.C. 4511.21(A) have been most recently reiterated by the Supreme Court in
Pond v. Leslein
(1995),
“Where there is conflicting evidence and reasonable minds could differ concerning any one of the elements necessary to constitute a violation of the statute, a jury question exists with regard to that element. For instance, in numerous cases in which a collision occurred at night or during extraordinary weather conditions that reduced visibility, we have held that a jury question existed as to whether the object that the driver hit was “reasonably discernible.” See,
e.g., Blair, supra; Tomlinson, supra; Junge v. Brothers
(1985),
It is important to note that the Supreme Court stated in Pond that an object in a driver’s path during daylight hours is reasonably discernible as a matter of law in the absence of extraordinary weather conditions. In the case sub judice, Didier himself testified that there were no extraordinary weather conditions on the morning of the accident, and that it was dry, sunny and daylight. Furthermore, neither party questions the admitted facts that the school bus was ahead of Didier and, when he struck it, it was stationary, or perhaps moving slightly in the same direction as Didier, and did not suddenly appear in his path. Thus, all of the elements of violation of the assured clear distance rule have been met, as a matter of law, and we find the trial court was correct in holding Didier negligent per se.
“Plaintiff tries to discount his negligence by pointing to the reason the bus in front of him stopped short and then applying the “sudden emergency” doctrine, not to the bus in front of the Plaintiff, but to the object in front of the bus. However, the assured clear distance statute, by its very nature, often involves a situation wherein a vehicle stops short or abruptly in front of a second vehicle, which then collides with the first. A violation of the assured clear distance statute occurs unless “such assured clear distance ahead is, without [the driver’s fault], suddenly cut down or lessened by the entrance
within such clear distance
and into his path or lane of travel an obstruction which renders him unable, in the exercise of ordinary care, to avoid colliding therewith.”
Erdman v. Mestrovich
(1951),
“Based on the above, this Court finds that there are no genuine issues of material fact in this case, and that Defendant is entitled to judgment as a matter of law.”
The law is clear that Didier was obliged to maintain an assured clear distance ahead of him, and the reasons necessitating the slowing or the stopping of the vehicle ahead of him are immaterial.
Cox v. Polster
(1963),
All the cases cited by Didier to support his “sudden emergency” argument involve situations where the struck object moved directly into the path of the
The appellant’s first and third assignments of error are overruled.
V
The real issue raised by this appeal, and the one for which we requested supplemental briefs, concerns the appellant’s second assignment of error and the trial court’s ruling that Didier, the appellant, was one hundred percent responsible for his injuries by his violation of the assured clear distance statute. Didier maintains that Ohio’s comparative negligence rule
1
should apply in this situation, where the vehicle ahead of Didier stopped as a result of the negligence of the appellee, Johns, and that reasonable minds could differ on the issue of proximate cause and conclude that Johns and Didier were concurrent tortfeasors. There is some case law to support Didier’s argument.
Baum v. Augenstein
(1983),
On the other hand, we are inclined to the view that Didier’s negligence was an intervening cause disconnected from the negligence of Johns and was itself “an efficient, independent, and self-producing cause of [Didier’s] injury.”
Berdyck v. Shinde
(1993),
In the case
sub judice,
however, the action of the bus driver in bringing his vehicle to a natural stop was not negligent. This non-negligent act broke the chain of causation between Johns’s negligence and Didier’s negligence.
Accord Hooven v. Four Star Produce, Inc.
(Dec. 10, 1992), Cuyahoga App. No. 63628, unreported,
We do not find the two Tenth District Court of Appeals’ cases that support Didier’s argument, Baum and Grange Mut. Cas. Co., supra, persuasive.
The first Tenth District case, Grange Mut. Cas. Co., supra, relied upon by the Baum court, utilized the seductively appealing, but wholly pernicious, “but for” analysis in ruling that there was a jury question as to the comparative negligence of the first driver and the third driver (who struck the second driver’s vehicle which was stopped as a result of the negligence of the first driver).
In our universe, all events can be analyzed as caused by all other events. It is a weary truism now, thanks to the explorations of chaos theory, that “but for” the flapping of a butterfly’s wings in Mexico, Dorothy would never have been blown to Oz. 2
On the scale of human (not just physical) events, historical interactions have been thoroughly revealed and explored. 3 In short, the “but for” analysis casts a net so wide that conceivably all events are traceable to all other events, and the touchstone of individual responsibility sinks beneath a sea billowing with enumerable occurrences all jostling each other.
To illustrate the inappropriateness of applying the “but for” analysis in law, imagine that a child’s ball rolls into the street of a suburban neighborhood. The first car whose driver sees it properly rolls to a stop or a slow crawl. The next succeeding eight drivers do the same. However, a hopped-up teenager driving the tenth car slams into the rear of the ninth car. Physically, the accident would not have happened “but for” the ball in the street. But the analysis would not stop there. The ball possibly would not be in the street “but for” the negligence of the child (or children), the negligence of the parent(s) or babysitter on the scene, the lack of a playground (forcing the children to play in their front yards), etc., ad infinitum. Are we to direct all rear-end collisions into an endless search of discovery for some tint of negligence down the road, no matter how far removed? We think not.
The legal analysis must focus on the direct per se negligence of the violator of the assured clear distance rule, as distinct from a physical analysis made pursuant to the “but for” theory.
In the case sub judice, we reiterate and emphasize that there is no allegation that the driver of the struck vehicle, the school bus, was negligent. If he had been somehow negligent, perhaps by failing to maintain his own assured clear distance, the issue of comparative negligence would be for a jury, and summary judgment would be improper. That is not the case, and summary judgment was proper.
The second assignment of error is overruled.
VI
We find that the affidavit of Officer Baldridge is unnecessary to the core issue in this case, and we therefore overrule appellant’s fourth assignment as moot.
Judgment affirmed.
Notes
. This rule applies to all negligence actions tried in Ohio after June 20, 1980.
Wilfong v. Batdorf
(1983),
. See, e.g., The Collapse of Chaos, Cohen and Stewart (Viking Penguin, 1994), 191.
. Connections, James Burke (Little, Brown & Co. 1978).