Lead Opinion
OPINION
WAITE, J.
{¶ 2} The following facts are derived from the record. On March 21, 2012, Appellant's spouse, Robert M. Emmerling, was operating a motorcycle in the left-hand lane of southbound South Avenue approaching McClurg Road in Boardman, Ohio. At the same time, Alex Tareshawty ("Tareshawty"), operating a minivan, was waiting to turn left onto northbound South Avenue. Traffic on South Avenue did not have any "stop" indicator at the McClurg Road intersection.
{¶ 3} After stopping in the marked lane on McClurg Road preparatory to making his left turn onto South Avenue, Tareshawty slowly moved his vehicle forward in an effort to better see the traffic on South Avenue. Tareshawty looked to the left and to the right multiple times before proceeding to make his left turn onto northbound South Avenue. When Tareshawty entered South Avenue, Emmerling's motorcycle collided with the side of Tareshawty's minivan. From the time he began his left turn until the moment of collision, Tareshawty continued to look only to his left, toward the direction Emmerling was proceeding. When Tareshawty first saw the motorcycle, it was too late to stop so he attempted to speed up.
{¶ 4} Tareshawty testified that the motorcycle "seemed to appear out of nowhere." (Tareshawty Depo., p. 80.) Tareshawty specifically testified as follows:
Q. Was there anything that in your experience before the date of the collision, that obstructed a driver's view to the left, when preparing to make a turn from McClurg onto north bound South Avenue?
A. No.
Q. Did any of the signs or telephone poles in your estimation obstruct a driver's view when turning from McClurg onto north bound South Avenue?
A. No.
(Tareshawty Depo., pp. 46-47.)
{¶ 5} Tareshawty further testified:
Q. Is it correct then that from the time you decided to try to pull out to make your turn until the time of impact, you were looking left towards the direction where the motorcycle was coming from?
A. Yes.
Q. Do you have any idea why you didn't see the motorcycle until the front end of your car was in that center turn lane* * *?
A. No.
* * *
Q. Do you know why you failed to see the motorcycle before it was too late to avoid the collision?
MR. MEOLA: Objection. Asked and answered.
THE WITNESS: I don't know.
(Tareshawty Depo., pp. 87, 89.)
{¶ 6} Emmerling passed away on April 19, 2012. Appellant filed a complaint against Appellee on March 20, 2014, seeking, among other things, damages for the wrongful death of her spouse. Appellant contends that Tareshawty's view of oncoming traffic was obstructed by signs erected by Appellee on the west side of South Avenue that were put in place contrary to the requirements of the OMUTCD, and that this obstruction was a proximate cause of her husband's death.
{¶ 7} The three signs in contention were mounted on the same two posts. At the top was a two-way left turn sign. In the middle was a hospital sign. Below the hospital sign was a directional arrow sign indicating the direction of the hospital.
{¶ 8} In 2010, before the accident in question, Appellee hired DLZ Ohio, Inc., professional engineers, to study the intersection. This site had been an area where other accidents had occurred. The purpose of the study was to identify problems, determine countermeasures, and set up reasonable time periods to implement the proposed countermeasures. In October 2010, Appellee received a report from DLZ. A copy of the report was entered into evidence and an engineer employed by Appellee testified at deposition as to the report:
Q The safety study that the Mahoning County Engineer hired DLZ to perform explained what the most frequent type of crash was at that intersection; right?
A Yeah.
Q What kind of crash was that?
A Left turn crashes.
Q The most-strike that. The safety study the Mahoning County engineer commissioned to have done told Mahoning County well before Robert Emmerling's fatal crash that the most common type of crash was the very type that he had; right?
A Oh, yeah.
(Donham Depo., p. 75.)
{¶ 9} During deposition, Robert Donham II, traffic engineer for the Mahoning County Engineer's Office, stated that from 2005 to 2012, there were 62 crashes at the intersection. The DLZ report recommended that the signs be moved as a short term countermeasure. While Donham instructed that the hospital sign and arrow sign should be moved, he also instructed that no special trip needed to be made to the intersection to carry out this instruction. The signs were not moved until after the Emmerling accident.
{¶ 10} Donham testified further that the bottom of the highest sign, the two-way left turn sign, was supposed to be at least seven feet from the ground. Any signs mounted below this sign could only be set one foot lower than the minimum height, which in this case meant set at six feet. Donham stated that on the date of the accident, the bottom of the hospital sign was five feet from the ground and the bottom of the directional arrow for the hospital was four and one half feet from the ground. Paul W. Dorothy, one of Appellee's expert witnesses, testified at deposition that the bottom of the directional arrow for the hospital was lower, approximately four feet two and one-half inches from the ground.
{¶ 11} Both parties presented the opinions of accident reconstruction experts on the issue of whether or not these signs played any role in the accident. Appellant's expert, Michael Sutton, P.E., gave his opinion that the location of the hospital and accompanying directional arrow signs explain why Tareshawty stated that Emmerling
{¶ 12} On March 16, 2015, Appellee filed a motion for summary judgment arguing that, as a political subdivision, it was immune from tort liability, that there were no exceptions to its immunity, and that Appellant had no evidence to establish a proximate cause between any alleged negligence of Appellee and the accident. Appellant filed a memorandum in opposition, to which Appellee replied. On August 19, 2015, the trial court granted Appellee's motion for summary judgment, concluding that Appellee was immune from any tort liability and Appellant could not establish that a proximate cause existed between the location of the signs and the accident. Appellant filed this timely appeal setting forth a single assignment of error.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED BY GRANTING SUMMARY JUDGMENT IN FAVOR OF APPELLEE BASED UPON AN IMPROPER APPLICATION OF POLITICAL SUBDIVISION IMMUNITY AND BASED UPON IMPROPERLY RESOLVING QUESTIONS OF FACT IN APPELLEE'S FAVOR.
{¶ 13} An appellate court conducts a de novo review of a trial court's decision to grant summary judgment, using the same standards as the trial court, set forth in Civ.R. 56(C). Grafton v. Ohio Edison Co.,
{¶ 14} "[T]he moving party bears the initial responsibility of informing the trial court of the basis for the motion, and identifying those portions of the record which demonstrate the absence of a genuine issue of fact on a material element of the nonmoving party's claim." (Emphasis deleted.) Dresher v. Burt ,
{¶ 15} The evidentiary materials to support a motion for summary judgment are listed in Civ.R. 56(C) and include the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact that have been filed in the case. In resolving the motion, the court views the evidence in a light most favorable
{¶ 16} R.C. Chapter 2744, which is referred to as the sovereign immunity statute, provides certain limitations on political subdivisions' liability for injuries and deaths on public grounds. Baker v. Wayne Cty .,
{¶ 17} The determination of whether or not a political subdivision is immune from tort liability for injuries or death to a person involves a three-tiered analysis. Rastaedt v. Youngstown , 7th Dist. No. 12 MA 0082,
{¶ 18} Regarding the first tier, the parties agree that in providing and maintaining public roadways, Appellee is a political subdivision engaged in governmental or proprietary conduct and is entitled to immunity from tort liability under R.C. 2744.02(A). Thus, we turn to the second tier of the analysis.
{¶ 19} Appellant argues that R.C. 2744.02(B)(3) contains an exception to the immunity enjoyed by Appellee. That section provides, in pertinent part, "political subdivisions are liable for injury, death, or loss to person or property caused by their negligent failure to keep public roads in repair and other negligent failure to remove obstructions from public roads."
{¶ 20} "Public roads" are defined in R.C. 2744.01(H) :
"Public roads" means public roads, highways, streets, avenues, alleys and bridges within a political subdivision. "Public roads" does not include berms, shoulders, rights-of-way, or traffic control devices unless the traffic control devices are mandated by the Ohio manual of uniform traffic control devices.
{¶ 21} We must accept the definition of "public roads" provided by the general assembly. Baker at ¶ 13. Thus, if the signs in this case are mandated by the OMUTCD, they are included in the duty to keep "public roads" in repair. R.C. 2744.01(H). Yonkings v. Piwinski , 10th Dist. Nos. 11AP-07, 11AP 09,
{¶ 22} The OMUTCD includes text headings to classify and categorize the nature of its accompanying text. In this matter we must refer to the 2005 edition of the manual, because the 2012 edition did not become effective until April 12, 2012, after the date of the incident in question. Part I of the 2005 OMUTCD provides guidance regarding the headings utilized in the manual. The text is grouped under headings entitled "Standard," "Guidance," "Option," and "Support." Information found under the "Standard" classification is considered to be a "required, mandatory, or specifically prohibited practice regarding a traffic control device ." (Emphasis sic.) OMUTCD, p. I-2. This definition notes that the verb "shall" is "typically used" and that the text appears in bold type.
{¶ 23} Text following the "Guidance" heading is a "recommended, but not mandatory, practice in typical situations. " (Emphasis sic.)
{¶ 24} Part 2 of the OMUTCD relates to signs. OMUTCD 2TC-1. Chapter 2D is titled "Guide Signs-Conventional Roads." Section 2D.45 is titled "General Service Signs." OMUTCD, p. 2D-27. This section explains:
On conventional roads, commercial services such as gas, food, and lodging generally are within sight and are available to the road user at reasonably frequent intervals along the route. Consequently, on this class of road there usually is no need for special signs calling attention to these services. Moreover, General Service signing is usually not required in urban areas except for hospitals, law enforcement assistance, tourist information centers, and camping.
OMUTCD, p. 2D-27.
{¶ 25} Appellant contends that the hospital sign in question is "mandated" by the section quoted above because of the use of the word "required." Thus, she believes the hospital and/or arrow signs are "mandatory" for our purposes pursuant to the OMUTCD, and the incorrect placement of these signs, alone, amounts to a failure of Appellee to keep the roadway in repair, triggering an exception to immunity. However, this language falls under the general heading of "Support," the lowest classification of signage, which Appellee says reflects that there is no degree of mandate, recommendation, authorization, prohibition, or enforceable condition.
{¶ 26} Appellant attached to its brief in opposition to summary judgment a report from Eric A. Hulme, E.I., a purported engineering expert. In it, Hulme opines that the disputed language "provides a necessity to install the general services sign for hospitals in urban areas." (5/15/15 Opp. to S.J., Exh. N, p. 14). Thus, the question presented is whether the language stating that general service signing "is usually not required in urban areas except for hospitals" makes the hospital sign mandatory in the OMUTCD despite
The OMUTCD contains mandatory, advisory and permissive conditions, differentiated by the use of the terms "shall," "should" and "may." Standards include the word "shall" and are considered mandatory. Advisory conditions including the word "should" are considered to be advisable usage, but are not mandatory. Permissive conditions include the word "may" and carry no requirement or recommendation.
{¶ 27} Appellant contends "required" and "shall" express the same meaning. Appellant notes that the expert hired by Appellee agreed that once the hospital sign was erected, the arrow sign became "mandatory." Appellee responds that although a directional message (arrow sign) was required once the hospital sign was erected, the specific directional arrow sign used here was not mandated. While still disagreeing with Appellant's contention that the hospital sign was mandatory, Appellee contends that even if it was, the arrow sign remained discretionary in nature.
{¶ 28} In granting summary judgment, the trial court employed the same rationale as to the arrow sign. Noting that once the hospital sign was erected, the OMUTCD directed additional signage was needed, the court concluded:
Although the word "shall" is used in this section, the standard only applies after the discretionary decision has been made to install a general service sign, and does not require that a specific sign be placed at that location, only that a "directional message" accompany the sign. As such the directional sign at the intersection of McClurg Road and South Avenue, in Boardman Township is not mandatory under the Ohio Manual of Uniform Traffic Control Devices.
(8/19/15 J.E., p. 6).
{¶ 29} Appellant cites Lumbermens Mut. Cas. Co. v. Ohio Dept. of Transp .,
{¶ 30} We note, as does Appellee, that the Lumbermens court was never asked to review this issue as it regards sovereign immunity pursuant to Chapter 2744 of the Revised Code.
{¶ 31} The Third District Court of Appeals recently did address the issue of mandatory signs under the OMUTCD in Deitz v. Harshbarger,
(3) Political subdivisions are liable for injury, death, or loss to persons or property caused by their failure to keep public roads, highways, streets, avenues, alleys, sidewalks, bridges, aqueducts, viaducts, or public grounds within the political subdivisions open, in repair, and free from nuisance, except that it is a full defense to such liability, when a bridge within a municipal corporation is involved, that the municipal corporation does not have the responsibility for maintaining or inspecting the bridge.
{¶ 32} After 2003, this section now states:
(3) Except as otherwise provided in section 3746.24 of the Revised Code, political subdivisions are liable for injury, death, or loss to person or property caused by their negligent failure to keep public roads in repair and other negligent failure to remove obstructions from public roads, except that it is a full defense to that liability, when a bridge within a municipal corporation is involved, that the municipal corporation does not have the responsibility for maintaining or inspecting the bridge.
Thus, the general assembly did not intend all erected traffic control devices to be considered part of a public road. Id. at ¶29. The court ultimately held that, as the stop sign was not mandated by the OMUTCD and the political subdivision decided to erect this sign discretionarily, the sign was not "mandatory" for purposes of determining whether an exception to immunity was triggered. Id. at ¶26.
{¶ 33} The statute does not clearly outline what is meant by the requirement to keep roadways "in repair." Leslie v. Cleveland,
{¶ 34} R.C. 2744.03(A) provides:
(A) In a civil action brought against a political subdivision or an employee of a political subdivision to recover damages for injury, death, or loss to person or property allegedly caused by any act or omission in connection with a governmental or proprietary function, the following defenses or immunities may be asserted to establish nonliability:
* * *
(3) The political subdivision is immune from liability if the action or failure to act by the employee involved that gave rise to the claim of liability was within the discretion of the employee with respect to policy-making, planning, or enforcement powers by virtue of the duties and responsibilities of the office or position of the employee.
* * *
(5) The political subdivision is immune from liability if the injury, death, or loss to person or property resulted from the exercise of judgment or discretion in determining whether to acquire, or how to use, equipment, supplies, materials, personnel, facilities, and other resources unless the judgment or discretion was exercised with malicious purpose, in bad faith, or in a wanton or reckless manner.
{¶ 35} The Supreme Court of Ohio distinguished between R.C. 2744.03(A)(3) and (5) noting:
Although both R.C. 2744.03(A)(5) and 2744.03(A)(3) concern an employee's discretionary acts, the focus of subsection (A)(3) is that the employee be engaged in policy-making, planning, or enforcement. Also unlike R.C. 2744.03(A)(5), R.C. 2744.03(A)(3) does not have language limiting its grant of immunity. In other words, a political subdivision may assert the immunity defense when an employee who has the duty and responsibility for policy-making, planning or enforcement by virtue of office or position actually exercises discretion with respect to that power. This immunity exists even if the discretionary actions were done recklessly or with bad faith or malice.
Elston v. Howland Local Schools,
{¶ 36} The Supreme Court applied the discretionary defenses found in R.C. 2744.03(A)(3) and (5) to conclude that they precluded the imposition of liability on a political subdivision for acts or omissions related to a defect in sign construction or the failure to install signage. Franks v. Lopez,
{¶ 37} Appellant contends, here, that Appellee had no discretion with regard to erecting the signs. Appellant cites to
{¶ 38} Appellee, however, points out that the DLZ study concluded merely that Appellee should "consider" relocating the signs because they may "potentially" block the sight of eastbound drivers looking north. Because moving the signs was "merely a suggestion," and the decision to relocate the signs did involve a discretionary decision, this supports finding Appellee immune from suit under R.C. 2744.03(A)(5). (Appellee's Brf., p. 19.) Appellee is correct, here. The very evidence on which Appellant relies, the DLZ study, leads to the conclusion that moving the signs was discretionary with Appellee. Further, neither the study nor the statute impose "reasonable time" limitations on Appellee.
{¶ 39} Lastly, Appellant complains the trial court erred because it resolved disputed questions of fact in favor of Appellee with regard to the issue of causation. The trial court also granted summary judgment to Appellee because the court held that Appellant "cannot establish probable cause in this action." (8/19/15 J.E., p. 8.) Citing Littleton v. Good Samaritan Hospital & Health Center ,
{¶ 41} Appellant posits that her accident reconstruction expert, Sutton, based his opinion on Tareshawty's testimony. It was Sutton's opinion the hospital sign and the directional arrow sign blocked Tareshawty's view during the most critical few seconds when Tareshawty was making the decision to enter the intersection. Sutton testified that if you accept Tareshawty's testimony, when he crept up to the intersection he was put into an area where the sign would block a view of the victim's motorcycle. Sutton concluded that the most logical explanation is that the motorcycle was not in view because the sign blocked it. Sutton relies heavily on the fact that at the time of the accident, Tareshawty was only sixteen years old. Appellant also complains that the trial court, in concluding that there was no genuine issue of material fact, failed to consider the DLZ report and recommendation. The recommendation to correct the height of the signs was made more than one year before the accident and Donham gave instructions more than one year before the accident that the height of the signs should be corrected. Appellant argues that this combination of facts create a genuine issue of material fact whether the signs were a proximate cause of the accident and ultimate death of Emmerling. Appellant emphasizes that Tareshawty's testimony is but the testimony of one witness. Appellant urges that the jury should be allowed to weigh his testimony along with all of the foregoing facts.
{¶ 42} In response, Appellee contends that the trial court was correct in its determination that Sutton's opinion is mere speculation and conjecture. Appellee cites Allen v. USA Parking Sys., Inc. , 7th Dist. No. 10 MA 0175,
{¶ 43} Appellee is correct that Appellant's expert relies on mere conjecture. Appellant's witness, Tareshawty, directly stated under oath that his view was not obstructed and that he had no idea why he did not see the decedent and his motorcycle. While Appellant's expert speculates that this must be due to the signage blocking Tareshawty's view, the direct and unwavering testimony of the eyewitness directly
{¶ 44} "[T]he proximate cause of an event is that which in a natural and continuous sequence, unbroken by any new, independent cause, produces that event and without which that event would not have occurred." Aiken v. Indus. Comm.,
{¶ 45} Based on the foregoing, Appellee is immune from suit. The parties admit that, unless an exception to immunity can be found, blanket immunity exists. The signs in question are not subject to mandatory requirements of the OMUTCD, and hence the manner and mode of placement were discretionary acts by Appellee and do not run afoul of their duty to keep the public roadways in repair. Even if the signs were considered mandatory, Appellant has not established a causal connection between the driver's conduct and any actionable conduct by Appellee. Appellant's expert witness provides mere conjecture, here, which cannot create a material dispute in fact. The trial court did not err in granting summary judgment to Appellee. Appellant's assignment of error is without merit and the judgment of the trial court is affirmed.
Donofrio, J., dissents; see dissenting opinion.
DeGenaro, J., concurs.
Dissenting Opinion
{¶ 46} Because I would find that genuine issues of material fact preclude summary judgment, I respectfully dissent from the majority's opinion.
{¶ 47} The determination of whether or not a political subdivision is generally immune from tort liability for injuries or death to a person is a three-tiered analysis. Rastaedt v. Youngstown , 7th Dist. No. 12 MA 0082,
{¶ 49} As to the second tier, appellant argues that R.C. 2744.02(B)(3) removes the immunity protection enjoyed by appellee. That section provides, in pertinent part:
political subdivisions are liable for injury, death, or loss to person or property caused by their negligent failure to keep public roads in repair and other negligent failure to remove obstructions from public roads[.]
{¶ 50} "Public roads" are defined in R.C. 2744.01(H) :
"Public roads" means public roads, highways, streets, avenues, alleys, and bridges within a political subdivision. "Public roads" does not include berms, shoulders, rights-of-way, or traffic control devices unless the traffic control devices are mandated by the Ohio manual of uniform traffic control devices.
{¶ 51} If the signs in this case are mandated by the Ohio Manual of Uniform Traffic Control Devices ("OMUTCD"), they are included in the definition of a public road. R.C. 2744.01(H). Yonkings v. Piwinski , 10th Dist. Nos. 11AP-07, 11AP-09,
{¶ 52} The trial court, in granting appellee's motion for summary judgment, concluded that none of the three signs questioned here are mandatory and, therefore, appellee's immunity was not excepted by R.C. 2744.02(B)(3).
{¶ 53} Appellant argues that either, or both, the hospital sign and the accompanying directional sign are mandated by the OMUTCD.
{¶ 54} Whether or not the hospital sign was mandatory, once appellee erected the hospital sign, it was mandatory that a directional message be posted. The General Service Signs section provides:
General Service signs, if used at intersections, shall be accompanied by a directional message.
(Emphasis in original). This section is not only in bold type, it is under the heading "Standard", meaning that it is mandatory or required.
{¶ 55} Once the hospital sign was installed, a directional message became mandatory. Although appellee may have had discretion as to what type of "directional message" to employ, once it made that decision, its directional message had to comply with the height requirements of the OMUTCD.
{¶ 56} As to the part of R.C. 2744.02(B)(3) that makes political subdivisions liable for injury or death "caused by their negligent failure to keep public roads in repair," the statute does not define "in repair."
{¶ 57} The trial court, and appellee, rely upon our decision in Bonace v. Springfield Twp .,
{¶ 58} The trial court concluded that even if appellant established an exception to immunity pursuant to R.C. 2744.02(B)(3), appellee was nevertheless entitled to summary judgment since it had a defense under R.C. 2744.03(A)(3) and R.C. 2744.03(A)(5). This is the third tier of analysis. Rastaedt at ¶ 10.
{¶ 59} R.C. 2744.03(A)(3) provides:
The political subdivision is immune from liability if the action or failure to act by the employee involved that gave rise to the claim of liability was within the discretion of the employee with respect to policy-making, planning, or enforcement powers by virtue of the duties and responsibilities of the office or position of the employee.
And R.C. 2744.03(A)(5) provides:
The political subdivision is immune from liability if the injury, death, or loss to person or property resulted from the exercise of judgment or discretion in determining whether to acquire, or how to use, equipment, supplies, materials, personnel, facilities, and other resources unless the judgment or discretion was exercised with malicious purpose, in bad faith, or in a wanton or reckless manner.
{¶ 60} The trial court found that the decision to either raise or remove the signs was discretionary. The trial court then concluded that appellant offered no evidence that this decision was made with malicious purpose, in bad faith, or in a wanton or reckless manner. Thus, the trial court held that these two statutes reinstated sovereign immunity and summary judgment for appellee was appropriate.
{¶ 61} Once appellee knew the height of the sign was contrary to the requirements of the OMUTCD, any decisions about how to correct the problem were not the type of judgment or discretion intended in R.C. 2744.03(A)(5). How to correct the height problem was not an executive or planning function, nor did it require a policy decision.
{¶ 62} Even if the decision to correct the problem with the height requirements was discretionary, appellee still had a duty to correct the situation within a reasonable time. In Garland v. Ohio Dept. of Transp .,
{¶ 63} Donham testified that in the spring of 2011 he instructed the sign crew to move the hospital and directional arrow signs. (Donham Dep. 71). A year later, at the time of the accident, they had not been moved. (Donham Dep. 71). According to Donham, the cost to remove the two signs was "incidental * * * virtually nothing." (Donham Dep. 60-61). It was "a pretty easy thing to do." (Donham Dep. 87-88). Thus, appellee had to implement its decision to move the sign in a reasonable amount of time and, considering the above
{¶ 64} Moreover, I would find the trial court erred by resolving disputed questions of fact in favor of appellee with regard to the issue of causation. Another reason offered by the trial court for granting summary judgment was that appellant could not establish probable cause. The trial court concluded that the accident reconstruction expert's opinion offered by appellant was mere speculation because the expert never visited the site and did not have specific information regarding where Tareshawty was located in the roadway prior to the accident. The trial court emphasized that Tareshawty indicated no signs or poles obstructed his view and that he just did not see Emmerling's motorcycle.
{¶ 65} Where reasonable minds can differ on the issue of proximate cause, the issue is properly submitted to the jury. Fannin v. Cubric ,
{¶ 66} At the time of the accident, Tareshawty was 16 years old. (Tareshawty Dep. 10, 12). Tareshawty testified:
"Q Was there anything in your experience before the date of the collision, that obstructed a driver's view to the left, when preparing to make a turn from McClurg onto north bound South Avenue?
"A No.
"Q Did any of the signs or telephone poles in your estimation obstruct a driver's view when turning from McClurg onto north bound South Avenue?
"A No.
(Tareshawty Dep. 46-47). This is the testimony emphasized by the trial court. But we must consider the balance of Tareshawty's testimony.
{¶ 67} Tareshawty further testified that on the day of the collision he first stopped at the white line on the pavement marking the point at which he should stop. (Tareshawty Depo. 59). He then "creeped" his vehicle forward in order to see the north bound traffic proceeding down a hill. (Tareshawty Depo. 59-60). The reason he crept forward is because cars in the far right hand lane on McClurg proceeding in the same direction (easterly) as Tareshawty were blocking his view of the north bound traffic on South Avenue. (Tareshawty Dep. 59-60). Tareshawty continued:
Q How did creeping forward affect your ability to see traffic coming from your left, if at all?
A Um, I really don't remember.
(Tareshawty Dep. 61).
{¶ 68} Tareshawty testified that traffic in both directions was heavy that day and that he could not tell how long he waited before attempting his left hand turn. (Tareshawty Dep. 61). But, he said, it seemed like a long time. (Tareshawty Dep. 61). He testified that he looked left and right multiple times. (Tareshawty Dep. 66). He also testified that there were no distractions with regard to his ability to focus on his driving. (Tareshawty Dep. 67-71). When he concluded that it was safe to enter the intersection and make his turn, Tareshawty said there was a car in the western most
{¶ 69} When he proceeded, he said the motorcycle seemed to appear out of nowhere. (Tareshawty Dep. 80). He first saw the motorcycle while he was turning. (Tareshawty Dep. 83). From the moment he first saw the motorcycle until the impact was "maybe a second, not much more than that." (Tareshawty Dep. 84-85). Once he began his turn, he never looked back to the right but was looking to the left the entire time. (Tareshawty Dep. 86-87). Tareshawty explained:
Q Did you continue looking to the left the whole time as you were making the turn or were you looking ahead in the direction you were going?
A Left.
Q Is it correct then that from the time you decided to try to pull out to make your turn until the time of impact, you were looking left towards the direction where the motorcycle was coming from?
A Yes.
Q Do you have any idea why you didn't see the motorcycle until the front of your car was in that center turn lane that we have marked as quote "left lane" end quote, on Exhibit 8?
A No.
(Tareshawty Dep. 87). Tareshawty continued:
Q Do you believe you made a driving error when pulling out when you did?
MR. MEOLA: I object.
THE WITNESS: I really don't know.
BY MR. STRAUCH:
Q Well, I mean you know that you failed to see an oncoming motorcycle that had the right-a-way until it was too late for you to avoid the collision, isn't that right?
MR. MEOLA: I object.
THE WITNESS: Yes.
BY MR. STRAUCH:
Q Do you know why you failed to see the motorcycle before it was too late to avoid the collision?
MR. MEOLA: Objection. Asked and answered.
THE WITNESS: I don't know.
(Tareshawty Dep. 89).
{¶ 70} Although his estimation was that there were no telephone poles or signs that blocked his view, Tareshawty clearly was at a loss to explain what he did wrong or why the motorcycle appeared out of nowhere. (Tareshawty Dep. 80, 89).
{¶ 71} Not only did the trial court fail to consider the balance of Tareshawty's testimony, it improperly gave greater weight to only a portion of Tareshawty's testimony, especially when considered in light of the other evidence offered by appellant. Michael Sutton, a licensed professional engineer employed by Accident Research Specialists, PLLC, provided an affidavit which stated, in pertinent part:
In addition, I also concluded that based on the location where Mr. Tareshawty testified he stopped, Mr. Emmerling's speed and location, as well as the geometry of the sight obstruction created by the location of the signs, all explained why Mr. Tareshawty did not see the motorcycle when he looked to his left prior to pulling into the intersection while he was making the decision to pull into traffic.
[I]f you look at his [Tareshawty's] deposition testimony about where he crept up to, it puts him right in the area where that sign will block the motorcycle for a period of time. So when the-when the driver of the van tells me that he looked several times back and forth, he didn't see anything coming, the most likely and the most logical explanation is the motorcycle wasn't in view because of the sign.
(Sutton Dep. 33). When confronted with Tareshawty's testimony that in his [Tareshawty's] estimation the signs did not obstruct a driver's view, Sutton explained:
[E]ither the signs blocked his view of traffic or he was in a position where the signs were not a factor and he looked right at the motorcycle and pulled out in front of it. But, I think, based on every-everything that has been documented about these signs and the-and, for instance, the safety report I reviewed, acknowledges that the signs block oncoming traffic. And it fits this accident, because he says, (as read) "I looked and I never saw the motorcycle till it was hitting me."
(Sutton Dep. 41).
{¶ 72} By emphasizing only Tareshawty's estimation about the signs, and ignoring the balance of Tareshawty's testimony, the expert's opinions, and the other attendant facts, the trial court weighed the evidence, which it is not permitted to do in ruling on a summary judgment motion.
{¶ 73} For these reasons, I would reverse the decision granting summary judgment and would remand the matter to the trial court.