CYNTHIA SUE HEIDER, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF MATTHEW J. HEIDER, ET AL., PLAINTIFFS-APPELLANTS, v. SIEMENS, AG, ET AL., DEFENDANTS-APPELLEES.
CASE NO. 1-10-66
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY
February 28, 2011
2011-Ohio-901
Appeal from Allen County Common Pleas Court Trial Court No. CV2008-0812 Judgment Affirmed
Marvin A. Robon for Appellant
Larry E. Yunker II for Appellant
Brian D. Sullivan for Appellee, U.S. Utility Contractor Company, Inc.
Brian L. Wildermuth for Appellees, Ottawa Oil Company and Ronald E. Funk
Martin W. Williams for Appellee, Ronald E. Funk
{¶1} Plaintiffs-appellants, Cynthia Sue Heider, individually and as administrator of the Estate of Matthew J. Heider, and Cynthia Sue Heider, as parent, natural guardian, and next friend of Rachel E. Heider (“Rachel“), a minor, (collectively “the estate“) appeal the Allen County Court of Common Pleas’ grant of summary judgment in favor of defendants-appellees Ottawa Oil Company, Inc. (“Ottawa Oil“), Ronald Funk (“Funk“), and US Utility Contractor Company, Inc. (“US Utility“). For the reasons that follow, we affirm.
{¶2} On November 14, 2006 around 8:30 p.m., Dr. Matthew J. Heider (“Dr. Heider“) was driving a Chevy Suburban southbound on Eastown Road in American Township, Allen County, Ohio approaching the intersection of Eastown and Allentown Roads (State Route 81). (Complaint, Doc. No. 1, ¶24); (Collision Reconstruction Report, Stechschulte Ex. D). Dr. Heider‘s daughter, Rachel, was a passenger in the vehicle. (Complaint, Doc. No. 1 at ¶5). At the same time, Funk was operating a Mack tractor-tanker trailer loaded with 8,500 gallons of gasoline westbound on Allentown Road (State Route 81), approaching the same intersection. (Id. at ¶25). The Mack tractor-tanker trailer collided with Dr. Heider‘s Suburban causing the tractor-tanker trailer to roll onto its side, the gasoline to ignite, and the tanker trailer to explode, with Funk being injured but escaping shortly prior to the explosion. (Id. at ¶27). As a result of the collision, Dr. Heider‘s Suburban was pushed approximately one hundred (100) feet
{¶3} On June 2, 2008, the estate filed a wrongful death action in the Allen County Court of Common Pleas against Siemens, AG; Siemens Corporation; Siemens Energy and Automation, Inc.; DGL Consulting Engineers, LLC, d/b/a DGL Consulting Engineers; US Utility; Allen County, Ohio; American Township, Ohio; Funk; Ottawa Oil; Acme Leasing Co.; and John Does one, two, three, four, five, and six alleging negligence in the design, manufacture and/or installation of the intersection and/or traffic control device (Count One); negligent maintenance of the intersection and/or traffic light (Count Two); negligence by Funk (Count Three); negligence and vicarious liability by Ottawa Oil (Count Four); negligence of Acme Leasing (Count Five); and strict liability against Siemens, DGL Consulting, US Utility and/or John Doe as manufacturers and/or suppliers of the traffic control device. (Count Six). (Doc. No. 1).
{¶4} On June 16, 2008, the estate filed a motion to stay the proceedings until a related case that the estate had filed in the Ohio Court of Claims, Heider v. Dept. of Transportation, Case No.: C2008-06521, was fully adjudicated. (Doc. No. 12). On June 24, 2008, the trial court granted the motion. (Doc. No. 16). However, on June 25, 2008, Funk filed a memorandum in opposition to the motion to stay, and on July 3, 2008, the trial court set the matter for hearing upon reconsideration. (Doc. Nos. 16, 26).
{¶6} On July 15, 2008, the trial court held a hearing on the estate‘s motion to stay proceedings. (Doc. No. 35). Following the hearing, the trial court lifted its previously imposed stay of proceedings effective July 15, 2008 and ordered the defendants to move or otherwise plead within thirty (30) days. (Id.).
{¶7} On July 21, 2008, American Township filed its answer. (Doc. No. 36). On July 25, 2008, defendants Acme Leasing, Ottawa Oil, and Funk filed answers. (Doc. Nos. 42, 44-45). Funk also filed a counterclaim against the estate for the injuries he sustained as a result of the accident. (Doc. No. 45). On August 5, 2008, the estate filed an answer to Funk‘s counterclaim. (Doc. No. 50).
{¶8} On August 4, 2008, Siemens Energy and Automation, Inc. filed its answer. (Doc. No. 52). On August 14, 2008, Siemens AG and Siemens Corp. filed an unopposed second motion for extension of time to move, plead, or otherwise answer, which the trial court granted. (Doc. Nos. 53, 56).
{¶9} On September 11, 2008, Siemens AG and Siemens Corp. filed motions to dismiss for lack of personal jurisdiction and want of service of process. (Doc. Nos. 62, 64).
{¶11} On October 29, 2008, the trial court dismissed Siemens AG and Siemens Corp. from the case with prejudice. (Doc. No. 76).
{¶12} On November 13, 2008, the estate filed its first amended complaint against the same defendants as in its original complaint and, additionally, Eagle Traffic Systems (a business unit of Siemens Energy and Automation, Inc.), Baldwin and Sours, Inc., the Shelly Company, Oldcastle, Inc., Eberle Design, Inc., and Athens Technical Specialists, Inc. (Doc. No. 83).
{¶13} On November 13, 2008, the trial court issued a nunc pro tunc order rescinding its order dismissing Siemens AG and Siemens Corp. with prejudice and granting the estate through November 18, 2008 to respond to the motions. (Doc. No. 85).
{¶14} On November 19, 2008, the estate filed a
{¶16} A jury trial was scheduled for May 17, 2010 as the matter proceeded to discovery. (Doc. No. 113).
{¶17} On January 21, 2009, Acme Leasing filed a motion for summary judgment. (Doc. No. 112). On February 17, 2009, the estate filed a motion for extension of six (6) months to file its memorandum in opposition, which the trial court partially granted giving the estate until April 17, 2009 to respond. (Doc. Nos. 124, 133). That same day, the estate filed a
{¶18} On April 10th, July 20th, and November 12th, of 2009, respectively, the estate filed
{¶20} On December 18, 2009, Allen County filed a motion for summary judgment. (Doc. No. 270). On January 4, 2010, the estate filed a motion for an extension to respond to the motion for summary judgment, which the trial court granted. (Doc. Nos. 277, 279). On January 14, 2010, Baldwin and Sours, Inc. filed a motion for summary judgment. (Doc. No. 284). On January 15, 2010, Ottawa Oil and Funk filed a motion for summary judgment. (Doc. No. 285).
{¶21} On February 22, 2010, the Estate filed a
{¶22} On March 4, 2010, Baldwin and Sours, Inc. filed a request for submission of its summary judgment motion. (Doc. No. 318). On March 8, 2010, the estate filed a
{¶23} On March 15, 2010, US Utility filed a motion for summary judgment. (Doc. No. 325). On March 25, 2010, the estate filed a
{¶24} On March 30, 2010, the trial court granted Ottawa Oil and Funk‘s motion for summary judgment. (Doc. No. 331). The trial court also ruled in favor of Funk on his counterclaim for damages; however, the trial court never determined the amount of Funk‘s damages. (Id.). On April 22, 2010, the estate filed a notice of appeal from the trial court‘s grant of summary judgment in favor of Ottawa Oil and Funk. (Doc. No. 337). This case was assigned appellate case
{¶25} On May 5, 2010, the trial court granted US Utility‘s motion for summary judgment. (Doc. No. 344). On May 13, 2010, the estate filed a notice of appeal. (Doc. No. 345). This case was assigned appellate case no. 1-10-37 but was also dismissed for lack of a final appealable order on June 3, 2010. (Doc. No. 350).
{¶26} On September 7, 2010, the trial court held a hearing to determine the amount of Funk‘s damages for the injuries he sustained as a result of the accident. (Doc. No. 360). After hearing the evidence, the trial court granted judgment in favor of Funk in the amount of $122,301.52. (Id.). On September 16, 2010, the trial court stayed execution of the judgment pending appeal. (Doc. No. 361).
{¶27} On October 4, 2010, the estate filed its notice of appeal. (Doc. No. 362). The estate now appeals raising three assignments of error.1 For clarity of analysis, we elect to combine the estate‘s first and second assignments of error for our review.
ASSIGNMENT OF ERROR NO. I
WHETHER THE TRIAL COURT ERRED WHEN EVIDENCE OF A DEFECTIVE TRAFFIC SIGNAL LIGHT AND EVIDENCE OF CAUSE OF DEFECT WAS TAKEN FROM THE TRIER OF FACT.
WHETHER THE TRIAL COURT ERRED WHEN IT IGNORED THE EVIDENCE THAT WAS PRESENTED SHOWING THAT TRUCK DRIVER FUNK BREACHED HIS DUTY OWED TO DR. HEIDER WHEN FUNK FAILED TO EXERCISE ORDINARY CARE AT THE INTERSECTION.
{¶28} In its first assignment of error, the estate argues that circumstantial evidence of the traffic light‘s malfunctions in the weeks and months leading up to the accident creates a question of fact as to whether the traffic light malfunctioned on the date of the accident. In addition, the estate argues that there is a question of fact concerning whether the improper grounding of the traffic signal box could have caused the types of signal problems that were reported.
{¶29} In its second assignment of error, the estate argues that there is a question of fact as to whether the truck driver, Funk, breached his duty of ordinary care to yield to Dr. Heider who may have been clearing the intersection as Funk was entering the intersection. The estate further argues that there is a disputed question of fact concerning whether or not Dr. Heider entered the intersection on a red light.
{¶30} This Court reviews a grant or denial of summary judgment pursuant to
{¶31} “‘To maintain a wrongful death action on a theory of negligence, a plaintiff must show (1) the existence of a duty owing to plaintiff‘s decedent, (2) a breach of that duty, and (3) proximate causation between the breach of duty and the death.‘” Estate of Ridley v. Hamilton Cty. Bd. of Mental Retardation & Developmental Disabilities, 102 Ohio St.3d 230, 2004-Ohio-2629, 809 N.E.2d 2, ¶14, quoting Littleton v. Good Samaritan Hosp. & Health Ctr. (1988), 39 Ohio St.3d 86, 92, 529 N.E.2d 449.
{¶32} The estate first argues that questions of fact exist concerning whether the traffic light malfunctioned and whether Dr. Heider ran the red light. We disagree. Although several individuals came forward after the accident with accounts of how the traffic light at the intersection allegedly malfunctioned, none of these individuals actually witnessed the accident. (Defendants’ Funk and Ottawa Oil MSJ, Doc. No. 285, Ex. D). Additionally, every available accident witness testified that Dr. Heider entered the intersection on a red light.
{¶33} Ronald Funk testified that, around 8:30 p.m. on November 14, 2006, he was operating a tractor tanker-trailer around forty to forty-five (40-45) miles
{¶34} Bryan McClure testified that he was traveling forty-five to fifty (45-50) miles per hour southbound on Eastown Road approximately one-tenth (1/10)
{¶35} Brittney Gordon testified that she was traveling northbound on Eastown Road the night of the accident, and that the light controlling her lane of traffic was red as she approached the intersection. (Brittney Gordon Depo. At 18, 35). She testified that no other cars were in front of her when she stopped for the red light. (Id. at 16). She further testified that she saw the tractor tanker-trailer come through the intersection traveling west toward Allentown while the light for northbound traffic on Eastown Road was still red. (Id. at 20). Concerning the accident, Brittney testified that she heard squealing tires, a loud hit, saw an explosion, and heard people screaming. (Id. at 28, 43). She further testified that the light controlling eastbound Allentown Road traffic was green at the time of the accident, and the traffic light appeared to be functioning correctly. (Id. at 32, 73).
{¶36} Bethany Gordon, no relation to Brittney Gordon, testified that she was traveling westbound on Allentown Road behind the tractor tanker-trailer about two or three car lengths on the night of the accident. (Bethany Gordon Depo. at 11, 14-15, 43). The tractor tanker-trailer slowed down and moved into the turning lane as it approached the intersection, according to Bethany. (Id. at 16-17). Bethany testified that the light for westbound Allentown Road traffic was green and never changed. (Id. at 16). She also testified that cars were stopped for both northbound and southbound Eastown Road lanes of travel, and cars were stopped
{¶37} Katrina “Chris” Estes testified that she was traveling westbound on Allentown Road the night of the accident about three or four car lengths ahead of the tractor tanker-trailer. (Estes Depo. at 11, 18). Estes testified that she was slowing down for the light when it turned green, but that she cleared the intersection on a green light going forty to forty-five (40-45) miles per hour. (Id. at 18-21). Estes testified that, after she cleared the intersection, she saw flames in her rearview mirror and stopped her car to see the accident. (Id. at 21-22). Estes testified that the light changed from red to green normally, and that she passes through this intersection five to ten (5-10) times per week and has never noticed any light malfunctions. (Id. at 34-35, 56).
{¶38} The testimony of alleged prior light malfunctions offered by the estate is irrelevant for purposes of showing a traffic light malfunction on the night
{¶39} After reviewing the record herein, we cannot conclude that a material issue of fact exists with regard to whether or not the traffic signal malfunctioned or whether or not Dr. Heider ran the red light on the night of the accident.
{¶40} The estate next argues that a material issue of fact exists concerning whether or not unsatisfactory grounding of the traffic signal could have caused the traffic signal to malfunction on the night of the accident. This argument lacks merit for several reasons. As we have already noted, the record is devoid of any evidence of a traffic signal malfunction. Aside from that, the record lacks evidence that the traffic signal was improperly grounded. The estate points to an ODOT report noting that the grounding of the traffic signal was “unsatisfactory.” However, Chris Holmes, an ODOT signal electrician, testified that the report‘s notation of “unsatisfactory” means that the ground was not tested. (Holmes Depo. at 11-12, 65-66). Holmes further explained that the contractor who installs the signal cabinet tests for proper grounding of the cabinet. (Id. at 68). John Patrick, ODOT‘s project manager for the intersection, testified that he was present when US Utility tested the signal cabinet‘s grounding, and the signal cabinet passed the grounding test. (Patrick Depo. at 112-13). Even the estate‘s expert witness, Vernon Tekell, admitted that the ODOT report‘s conclusion of an “unsatisfactory” ground was contradictory, because the report also noted a ground measurement of
{¶41} Under these circumstances, we cannot conclude that a material issue of fact remains as to whether the traffic signal cabinet was improperly grounded and, more importantly, whether the improper grounding caused the accident.
{¶42} The estate next argues that a material issue of fact exists as to whether Funk violated a duty of ordinary care to yield to Dr. Heider who may have been lawfully in the intersection at the time of the accident. Specifically, the estate argues that McClure testified that Funk timed the red light so he could maintain speed and entered the intersection just as the light turned green. This argument lacks merit as well. As an initial matter, the estate‘s assumption that Dr. Heider may have entered the intersection lawfully is not supported by the record. Every available eyewitness testified that Dr. Heider entered the intersection on a red light, so he was not lawfully in the intersection at the time of the accident.
{¶43} Finally, the estate argues that, assuming the traffic light malfunctioned, Funk owed Dr. Heider a duty of ordinary care, citing Welch v. Canton City Lines (1943), 142 Ohio St. 166, 50 N.E.2d 343. This argument also lacks merit. The facts of this case are distinguishable from Welch, supra. The traffic light in Welch was working for one direction of travel but not working at all for the other direction of travel. 142 Ohio St. at 168. As a result, one motorist entered the intersection on a green light, while the other motorist entered the intersection without any light being illuminated. Id. Under these facts, the Court concluded that each vehicle was lawfully in the intersection; and therefore, each had equal rights, and the driver of each was bound to exercise ordinary care. Id. at 171. The traffic light in this case, however, was working for both directions of traffic, and, furthermore, the record indicates that the light was functioning properly at the time of the accident. As such, Welch is inapplicable. Aside from that, the record contains evidence demonstrating that Funk exercised reasonable care to avoid the accident by taking evasive action in the form of hard braking as soon as he realized that Dr. Heider was not stopping for the red light. (Funk Depo. at 72); (Stechschulte Depo. at 40-41, 44); (McClure Depo. at 35). (Bethany Gordon Depo. at 17). Therefore, we find no issues of material fact remain on this issue either.
{¶44} For all these reasons, the estate‘s first and second assignments of error are overruled.
ASSIGNMENT OF ERROR NO. III
WHETHER THE TRIAL COURT ERRED AS A MATTER OF LAW IN HOLDING THAT DEFENDANTS RONALD FUNK AND OTTAWA OIL WERE ONLY SUSCEPTIBLE OF NEGLIGENT MAINTENANCE IF DEFENDANTS KNEW OR HAD REASON TO KNOW OF THE UNDERLYING DEFECT IN THE TRACTOR TANKER TRUCK.
{¶45} In its third and final assignment of error, the estate argues that the trial court erred by relying upon Bloomer v. Van Kow Enterprises (May 5, 1994), 8th Dist. No. 64970 to conclude that its negligent maintenance claim failed as a matter of law because Bloomer was a products liability case. The estate further argues that evidence of defective maintenance goes to Funk‘s ability to control the vehicle upon the roadway as required under
{¶46} The estate‘s arguments lack merit. As an initial matter, the estate never raised the defendants’ failure to comply with
{¶47} Furthermore, the trial court‘s reliance upon Bloomer, supra, was not erroneous as the estate argues. Bloomer involved multiple claims against multiple defendants arising from an accident where a Van Kow employee was injured when the truck he was servicing rolled off of the lift ramps dragging him one hundred (100) feet. 8th Dist. No. 64970, at *1. Although the plaintiff did assert product liability claims against the defendants, he also asserted a claim of negligent maintenance against Jartran Enterprises, the owner of the truck, for failing to maintain the truck‘s emergency brake system. Id. The Court of Appeals found that plaintiff‘s negligent maintenance claim failed, however, because “there [was] no evidence that Jartran deviated from the regular maintenance schedules for the vehicle or that Jartran knew of any facts which would make it reasonable to
{¶48} The estate‘s third assignment of error is, therefore, overruled.
{¶49} Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
ROGERS, P.J., and SHAW, J., concur.
/jnc