Wallace v. HippWallace v. Hipp
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David C. Peebles, for appellant.
Cormac B. DeLaney, for appellee.
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HANDWORK, J.
{¶ 1} This appeal is from a judgment issued by the Lucas County Court of Common Pleas granting summary judgment to appellee in a case where a pedestrian, who was not within a cross-walk area, was injured when she was struck by appellee’s vehicle. Because we conclude that the trial court properly granted summary judgment, we affirm.
{¶ 3} Around 8:00 a.m., on October 1, 2007, appellant, pushing a stroller with a child, tried to cross Heatherdowns Boulevard, a five lane highway in south Toledo, Ohio. Heathergate Boulevard, a driveway which runs perpendicular to Heatherdowns, provides access to various businesses and apartments. Appellant attempted to cross from a grassy area on the north side of Heatherdowns, next to Heathergate Boulevard, to a grassy area next to a driveway of Toledo Masonic Center. She stepped from the curb of the outside westbound lane and walked south across the five lanes in аn area with no marked cross-walk. According to witness James R. LaRiviere, a driver in a westbound vehicle, when appellant first stepped from the curb, a westbound car had to slow down and swerve to avoid hitting her. LaRiviere stated that appellant did not stop but continued “striding, walking” across the inner westbound lane, the center turn lane, and the inner eastbound lane.
{¶ 4} Just as appellant was entering the eastbound curb lane, she was struck by the right front headlight area of appellee’s vehicle. Appellant was thrown approximately 50 to 60 feet from the point of impact. After the impact, appellee stopped her vehicle in her lane of travel, trying to avoid colliding with other vehicles traveling in the lane next to
{¶ 5} Discovery deposition testimony revealed that neither appellant nor appellee saw each other just prior to the collision. The speed limit in that area is 45 m.p.h. and appellee indicated that she was traveling between 30 to 40 m.p.h. just prior to the accident. Appellant was cited for crossing the roadway at an area other than in a crosswalk.
{¶ 6} The trial court ultimately granted summary judgment in favor of appellee, finding that because appellant was not within a crosswalk, she was required to yield the right of way to appellee, under
{¶ 7} Appellant now argues the following two assignments of еrror:
I. The trial court erred to the detriment of the plaintiff/appellant in granting defendant/appellee’s motion for summary judgment in that there existed genuine issues of material fact as to whether (1) the appellee motorist was negligent pursuant to
R.C. 4511.48(E) ; (2) the appellee failed to keep a proper lookout; (3) the appellee negligently failed in her duty to give her full time and attention to the reasonable operation of her car, including whether the appellee violated Toledo Municipal Traffic Code331.32 and R.C. 4511.202 ; (4) the appellee negligently failed to properly keep and maintain an assured clear distance ahead; (5) the appellant was walking in an unmarked crosswalk pursuant toOhio R.C. 4511.01(LL)(1) ; and (6) the trial court improperly relied extensively on an unauthenticated police report, and the hearsay contained therein, contrary tо Civ.R. 56(C) in granting summary judgment.II. The trial court erred to the detriment of the appellant in denying her motion to compel discovery.
I.
{¶ 8} Appellant’s first assignment of error consists of six parts. We will first address parts one and two together.
Driver’s Right of way versus Pedestrian’s Duty
{¶ 9} Appellant essentially argues that, pursuant to
{¶ 10}
{¶ 12} As noted previously, under
{¶ 13}
{¶ 14} Recently, this court, in Joyce v. Rough, 6th Dist. No. L–10–1368, 2011-Ohio-3713, ¶ 16, stated it this way:
{¶ 15} “The operator of a vehicle does not have a duty to look for pedestrians violating his right of way unless he has reason to expect danger.” Id., citing
{¶ 16} Even under the common-law duty to exercise ordinary care to avoid a collision, the contributory or comparative negligence of the driver with the right of way does not become an issue for trial without evidence that the driver with the right of way was also driving unlawfully. See Lydic v. Earnest, 7th Dist. No. 02 CA 125, 2004-Ohio-3194, applying the principles in Morris, supra, and Deming, supra. For example, the Ninth District Court of Appeals held the following:
[W]hеther or not the driver exercised his common-law duty of ordinary care is not a consideration in determining whether the vehicle was proceeding in a lawful manner. Only after it has been found that the vehicle is not proceeding in a lawful manner, by violating a law or ordinance, does the consideration of the driver’s common-law duty to use ordinary care come into play. Holding v. Chappel, 41 Ohio App.3d 250, 252, 535 N.E.2d 350 (9th Dist. 1987). See also Roehm v. Cramer, 1st Dist. No. C-980009, 1998 WL 906342 (Dec. 31, 1998); Mid-American Nat. Bank and Trust Co. v. Chrysler Corp., 6th Dist. No. 94WD007, 1994 WL 455657 (Aug. 19, 1994); Ramos v. Kalfas, 8th Dist. No. 64806, (May 19, 1994).
{¶ 18} In the present case, appellee was lawfully traveling in her lane of traffic and had no duty to keep a lookout for pedestrians violating her right of way. The moment appellant stepped off the curb into an area without a crosswalk, she was violating the right of way of any oncoming vehicle and was cited. Since appellee failed to comply with both
{¶ 19} Furthermore, there is nothing in the record to show that appellee actually saw appellant prior to the collision or that there was any expected hazard or danger present which would have required her to be on the lookout for appellant. The mere presence of a bus stop, further down and on the opposite side of the street, does not require all vehiсle drivers to scan all areas of the roadway. Unlike a school zone or
{¶ 20} Therefore, we conclude that, under the facts of this case, appellee was lawfully in the right of way and had no duty to look for appellant, who was violating that right of way.
Failure to Control the Vehicle
{¶ 21} Appellant next argues that appellee violated
(A) No person shall operate a motor vehicle, trackless trolley, streetcar, agricultural tractor, or agricultural tractor that is towing, pulling, or otherwise drawing a unit of farm machinery on any street, highway, or property open to the public for vehicular traffiс without being in reasonable control of the vehicle, trolley, streetcar, agricultural tractor, or unit of farm machinery.
{¶ 22} Toledo Municipal Code Section 331.32(c) states that “No person shall operate a motor vehicle or motorcycle without giving his full time and attention to the operation of such.”
{¶ 23} Nothing in the record indicates that appellee was not in control of her vehicle or was not paying attention to her driving. As wе noted previously, no evidence
Unmarked Crosswalk
{¶ 24} Appellant also claims that she was in an “unmarked crosswalk” and, therefore, had the right of way. This argument is also without merit.
{¶ 25} “(A) Every pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right of way to all vehicles, trackless trolleys, or streetcars upon the roadway.”
{¶ 26}
“Crosswalk” means:
(1) That part of a roadway at intersections ordinarily included within the real or projected prolongation of property lines and curb lines or, in the absence of curbs, the edges of the traversable roadway;
(2) Any portion of a roadway at an intersection or elsewhere, distinctly indicated for pedestrian crossing by lines or other markings on the surface; * * *.” (Emphasis added.)
{¶ 27}
(1) The area embraced within the prolongation or connection of the lateral curb lines, or, if none, then the lateral boundary lines of the roadways of two highways which join one another at, or approximately at, right аngles, or the area within which vehicles traveling upon different highways joining at any other angle may come in conflict. (Emphasis added.)
{¶ 28}
{¶ 29} In this case, appellant claims that Heathergate Boulevard is a street and that the area where she crossed Heatherdowns constitutes an unmarked crosswalk. As noted in the affidavit of Robert A. Babcock, Chief Surveyor with the City of Toledo Division of Engineering Services, Heathergate Boulevard is a private drive, is not maintained by the city of Toledo, and is used by the owner, Central Toledo Affordable Housing Partners, L.P., and its invitees. Even though Heathergate Boulevard may provide access to other streets, this does not change its character as a private driveway. As a result, it is not a highway for the purposes of creating an “intersection” under
Assured Clear Distance
{¶ 30} Appellant next argues that she presented sufficient evidence to show that appellee violated the assured-clear-distance statute.
(A) No person shall operate a motor vehicle, trackless trolley, or streetcar at a speed greater or less than is reasonable or proper, having due regard to the traffic, surface, and width of the street or highway and any other conditions, and no person shall drive any motor vehicle, trackless trolley, or streetcar in and upon any street or highway at a greater speed than will permit him to bring it to a stop within the assured clear distance.
{¶ 31} A violation of
{¶ 32} In the present case, at the least, appellant was not stationary or moving in the same direction as the driver. Moreover, witnesses described appellant as traveling quickly without stopping and neither appellant or appellee saw each other prior to the accident. Appellant was also negligent per se, since she violated the statutory right of way of the oncoming vehicles as soon as she stepped off the curb. The collision occurred because appellant failed to observe appellee’s clear right of way. As a result, appellant has not met at least two of the four evidentiary requirements to establish a violation under the аssured clear distance statute,
Police Report
{¶ 33} Appellant contends thаt the trial court relied on hearsay in an “unauthenticated police report.” When ruling on a motion for summary judgment, a trial court may consider a document which is not of the type listed under Civ.R. 56(C), if there
{¶ 34} In this case, contrary to appellant’s suggestion, the police report was authenticated by the custodian of those public records. Nevertheless, we agree that the portion of the report which states that appellant was “driving 40 miles per hour” is hearsay and was inadmissible for purposes of summary judgment. The report also indicated, however, that the road was “straight, level and dry” with a posted speed limit of 45 m.p.h., the description of the direction of travel of each of the parties, the location of the accident, and where the vehicle struck appellant. In addition, the report shows that appellant was charged with “crossing other than crosswalk” in violation of Toledo Municipal Code 371.03(a). The majority of the report was, in fact, based upon the officer’s observations at the scene.
{¶ 35} Appellant’s main objection to the information considered by the trial court is the speed estimated by the officer. Nothing in the record indicates that appellee was speeding. At most, appellee estimated that at the time of impact she was traveling 40 m.p.h. Appellant’s own expert chose to presume thаt she was traveling at 30 m.p.h.
{¶ 36} Therefore, as a result of the prеvious discussion, we conclude that no genuine issues of material fact remain in dispute and appellee was entitled to judgment as a matter of law. Accordingly, appellant’s first assignment of error is not well-taken.
II.
{¶ 37} In her second assignment of error, appellant claims that the trial court’s denial of her motion to compel discovery of appellee’s medical records was a “detriment” to appellant.
{¶ 38} Generally, a triаl court’s discovery decision is reviewed under an abuse of discretion standard. See State ex rel. The V Cos. v. Marshall, 81 Ohio St.3d 467, 469, 692 N.E.2d 198 (1998); Patterson v. Zdanski, 7th Dist. No. 03BE1, 2003–Ohio–5464, ¶ 10–11. Questions of law on the scope of privilege, however, are reviewed de novo. Ward v. Summa Health Sys., 128 Ohio St.3d 212, 2010-Ohio-6275, 943 N.E.2d 514, ¶ 13.
{¶ 39} Pursuant to Civ.R. 26(B)(1), parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action. It is not ground for objection that the information sought will be inadmissible at the trial as long as the information appears reasonably calсulated to lead to the discovery of admissible evidence. Communications between doctor and patient are generally
{¶ 40} In this case, the trial court properly denied the motion to compel discovery for two reasons. First, the requested medical records, including a list of medications, were privileged communications between patient and physician. Since appellee is not the plaintiff, she is not automatically subject to waiver of the doctor/patient privilege under
{¶ 41} In addition, appellee is not asserting any defense to the accident based upon a diminished ability caused by such medications or medical conditions. Appellant is not entitled to a “fishing expedition” for privileged medical information, where no direct causal relationship has been shown, in an attempt to create such relationship through innuendo and speculation. Thеrefore, the trial court properly denied appellant’s motion to compel discovery.
{¶ 43} The judgment of the Lucas County Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Peter M. Handwork, J.
JUDGE
Arlene Singer, P.J.
JUDGE
Thomas J. Osowik, J.
JUDGE
CONCUR.
This decision is subjeсt to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.