Defendant Fleegle has moved for summary judgment in his behalf. The facts established by the depositions, together with all reasonable inferences favorable to plaintiff from those facts, are these:
Slayton then started walking back to his car, a period of time having elapsed variously estimated at from 20 minutes to one hour. He crossed from the south to the north side of the eastbound lanes and began walking east toward his car. He was walking on the pavement somewhere within the most northerly of the three lanes, the passing lane. There was a center berm at his left and a grassy median strip beyond.
When Slayton reached a point approximately 200 feet from his car he was struck and killed by an eastbound car driven by defendant Hanks. Before striking Slayton, Hanks passed two patrol cars which were stationed as traffic controls, each with a red light working. The nearer car was about 300 feet west of the death scene.
Plaintiff alleges in her amended petition that both Fleegle and Hanks were negligent and that their negligence concurred to proximately cause death. Fleegle claims that his negligence, if any, was a remote rather than proximate cause.
A journey into the realm of proximate cause and its sub-realms of “concurring causes,” “intervening cause,” “superseding cause,” “remote cause,” “independent cause,” “efficient cause,” “dangerous force,” “active hazard” and “foreseeability,” is a journey into limbo. Concepts applicable to a determination of negligence are merged with concepts of proximate cause. Foreseeability, admittedly a test of negligence, is en-grafted totally as a test of proximate cause in some decisions and texts. 39 Ohio Jurisprudence 2d, Section 30, page 532; Adams v. Young,
The rationale underlying proximate cause as an essential issue in all negligence cases is that no actor ought to be held responsible for more than the natural, ordinary and reasonable consequences of his conduct. Neff Lumber Company v. First National Bank,
But wish fulfilment is no acceptable tool for a trial judge. The reality is that the concepts of “foreseeability” and “active force or hazard” are very much a part of proximate cause, particularly in the presence of an intervening agent.
To the extent that any single rule can be discerned it may be expressed in this way:
Independent conduct of one other than the defendant which intervenes in time and space between the defendant’s negligent conduct and plaintiff’s injury, and which immediately produces the injury, is a superseding cause and absolves the defendant of liability — except when:
1. The intervening conduct was reasonably foreseeable, or
2. Defendant’s conduct created an active force or hazard
Thrash v. U Drive It,
Applying the rule to the facts of this ease, neither exception applies. The conduct of Hanks in driving his car through a clearly announced zone of danger into Slayton, and the conduct of Slayton in walking upon the pavement of a passing traffic lane with his back to oncoming traffic, during the night time and on an unlighted stretch of road, all of which occurred between 20 to 60 minutes later in time than his accident and 800 feet distant from it, was not reasonably foreseeable by Fleegle as a matter of law.
Further, the condition of hazard which Fleegle negligently created was static, not active, at the time of the intervening conduct of Hanks and Slayton. The “dust” had long since settled. Slayton had removed himself from the hazard zone which Fleegle created. It was his conduct, concurring with Hanks, that created an altogether new hazard which resulted in his death.
This case is unlike the following eases in which it was held that the issue of proximate cause was one for a jury; Mudrich v. Standard Oil Company (supra), where the defendant negligently spilled gas on station grounds, forming pools. Plaintiff child under eight years later jumped into a flaming pool his friend had ignited. In this case the defendant created an active and continuing hazard and the plaintiff was injured in consequence of the intervening conduct acting in concurrence with it.
Neff v. First National Bank (supra). The defendant sold a shotgun to a minor who used it to shoot the plaintiffs. In this case, it was reasonably foreseeable that a shotgun would be shot and that a minor user might not be discriminating in his choice of targets.
Springsteel v. Jones & Laughlin Steel Corporation (supra). In this case a rusted power pole of defendant company fell on the plaintiff when earth moving equipment was intentionally brought into contact with it. Again, the pole represented an
Marshall v. Nugente et al,
This case is similar to the following cases which were decided for the defendant on the issue of proximate cause:
Hedgecock v. Orlosky,
Stanton v. Clegg, 106 N. Y. S. 2d 178. Defendant and plaintiff’s cars blocked a street after an accident. 20 minutes later a second ear approached and instead of stopping at the scene tried to maneuver through the debris and struck the plaintiff. It was held that a static condition resulted at the time of the intervening act and that the original negligent conduct was a remote, not proximate, cause of the injury.
Lynch v. Martin, 89 Pa. D and C, 461. After collision both cars were off the pavement. A short time elapsed and plaintiff crossed the street walking from his car to the defendant’s car when hit by a third car. The court held that the original negligent conduct was not a proximate cause of injury since it did not create a force which was in continuous and active operation up to the time of injury. Also see eases cited at 58 A. L. R. 2d, page 287 et seq.
Upon consideration of the pleadings, the depositions, argument of counsel at the hearing and the law, the motion of defendant Fleegle is sustained and judgment dismissing him from the cause is granted.
Judgment accordingly.