Westfall v. LemonWestfall v. Lemon
Sanford A. Meizlish, Barkan Meizlish Handelman Goodin DeRose Wentz, LLP, Columbus, Ohio, for Appellants.
Joseph A. Butauski, Caborn & Butauski Co., LPA, Dublin, Ohio, for Appellees.
McFarland, A.J.
{¶1} This is an appeal by Candy and Travis Westfall on behalf of their minor son, Joshua Westfall (hereinafter Appellant), of the trial court‘s summary judgment decision granted in favor of Appellees, Mark Lemon (hereinafter Appellee), and his employer, Matheny Motor Truck Company. On appeal, Appellants raise one assignment of error, contending that the trial court erred by entering summary judgment in favor Appellees when the record, construed in accordance with
FACTS
{¶2} On August 19, 2010, Appellant, Joshua Westfall, age 14, was driving an all-terrain vehicle (ATV) across State Route 7 in Washington County as he was engaged in farming activities in connection with his family‘s farm store known as Hensler‘s Town and Country Market. Upon crossing the road from the west heading in an east-bound direction, Appellant was struck by a van driven by Appellee, Mark Lemon, and owned by Lemon‘s employer, Matheny Motor Truck Company, which was traveling in the northbound lane. The record indicates another vehicle was traveling in the southbound lane at the time, but was not involved in the collision. Appellant sustained serious injuries and has no memory of the event.
{¶3} On August 16, 2012, Appellant‘s parents, Travis and Candy Westfall, filed a complaint on behalf of their minor son, Joshua, alleging negligence on the part of Appellant and his employer, which primarily claimed that Appellant failed to maintain an appropriate level of speed and control over his vehicle and thereby caused the collision. Appellees responded by denying the allegations contained in the complaint and alleging that Appellant‘s own negligence was the cause of his injuries. The matter then proceeded through the discovery process and depositions were taken of Travis, Candy and Joshua Westfall, Mark Lemon and Steven Belyus, Appellants’ expert witness.
{¶4} Pertinent portions of these depositions will be discussed more fully below, however, it was the opinion of Belyus that Appellee was traveling between 62 and 72 m.p.h. in an area that had a posted speed limit of 55 m.p.h. Appellee testified that he was traveling at or below the posted speed limit and Appellees’ expert opined, based upon his review of the “black box” contained in the van in which Appellee was driving, that Appellee was driving approximately 53 m.p.h. just prior to impact. The record is clear that Appellant had a sight line of the northbound lane of approximately 675 feet, however, according to Appellant‘s own expert, Appellant pulled into Appellee‘s lane of travel when Appellee was about
{¶5} Appellees moved for summary judgment on July 31, 2013, essentially claiming that Appellee had a preferential right-of-way and that Appellant failed to yield that right-of-way, thereby causing the accident. Thus, Appellees argued Lemon was not negligent and that Appellant‘s injuries were solely caused by his own actions. Appellants filed a memorandum contra arguing that Appellee lost his preferential right-of-way when he operated his vehicle above the speed limit. Appellants further contended that questions regarding right-of-way, failure to yield and proximate cause precluded summary judgment. Over the objection of Appellants, the trial court granted summary judgment in favor of Appellees.
{¶6} In its decision, the trial court construed the evidence in favor of Appellants with regard to Appellee‘s vehicle speed and assumed arguendo Appellee was speeding. Even construing the evidence in a light most favorable to Appellants, the trial court determined that Appellant‘s negligence in failing to yield was the proximate cause of his injuries and that under comparative negligence principles, Appellants were barred from recovery, as no reasonable person could conclude that Appellee‘s negligence
ASSIGNMENT OF ERROR
“I. THE TRIAL COURT ERRED BY ENTERING SUMMARY JUDGMENT IN FAVOR OF DEFENDANTS-APPELLEES WHEN (1) THE RECORD, WHEN CONSTRUED IN ACCORDANCE WITH
LEGAL ANALYSIS
{¶7} On appeal, Appellants challenge the decision of the trial court granting summary judgment in favor of Appellees, claiming the existence of genuine issues of material fact with respect to issues of vehicle speed, right of way, proximate cause and comparative negligence, which should have precluded summary judgment. A review of the record reveals that the trial court applied comparative negligence principles to determine that Appellant‘s negligence exceeded the negligence of Appellee, and, as such, Appellant was barred from recovery. Having made that determination, the trial court determined Appellee was entitled to judgment, as a matter of law.
{¶8} We review the trial court‘s decision on a motion for summary judgment de novo. Smith v. McBride, 130 Ohio St.3d 51, 2011-Ohio-4674, 955 N.E.2d 954, ¶ 12. “Accordingly, we afford no deference to the trial
{¶9} Under
{¶10} “[A] party seeking summary judgment, on the ground that the nonmoving party cannot prove its case, bears the initial burden of informing the trial court of the basis for the motion, and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact on the essential element(s) of the nonmoving party‘s claims.” Dresher v. Burt, 75 Ohio St.3d 280, 293, 662 N.E.2d 264 (1996). To meet this burden, the moving party must be able to specifically point to the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of
{¶11} “If the moving party fails to satisfy its initial burden, the motion for summary judgment must be denied. However, if the moving party has satisfied its initial burden, the nonmoving party then has a reciprocal burden outlined in
{¶12} The substantive law determines whether a genuine issue of material fact remains. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505 (1986); Turner v. Turner, 67 Ohio St.3d 337, 340, 617 N.E.2d 1123 (1993); Perez v. Scripps-Howard Broadcasting Co., 35 Ohio St.3d 215, 218-19, 520 N.E.2d 198 (1988). As the court stated in Anderson, supra:
“Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.”
{¶13} Negligence occurs when the defendant fails to recognize that he owes a duty to protect the plaintiff from harm and that failure proximately resulted in injury or damage to the plaintiff. Di Gildo v. Caponi, 18 Ohio St.2d 125, 127, 247 N.E.2d 732 (1969); Kauffman v. First-Central Trust Co., 151 Ohio St. 298, 306, 85 N.E.2d 796 (1949). ” ‘Negligence in motor vehicle cases, as in negligence cases generally, is the failure to exercise ordinary care so as to avoid injury to others. Ordinary care is that degree of care which persons of ordinary care and prudence are accustomed to observe under the same or similar circumstances, and the degree of care required of a motorist is always controlled by and depends upon the place, circumstances, conditions, and surroundings.’ ” Sickles v. Jackson Cty. Hwy. Dept., 196 Ohio App.3d 703, 2011-Ohio-6102, 965 N.E.2d 330; quoting McDonald v. Lanius, 3rd Dist. Marion No. 9-93-23, 1993 WL 451201, *2 (Oct. 28, 1993); quoting 7 Ohio Jurisprudence 3d (1978) 483-484, Automobiles and Other Vehicles, Section 312.
{¶14} The elements of a claim of negligence are: (1) the existence of a legal duty owing from the defendant to the plaintiff; (2) the defendant‘s
{¶15} In order to survive a properly supported motion for summary judgment in a negligence action, a plaintiff must establish that genuine issues of material fact remain as to whether: (1) the defendant owed him a duty of care; (2) the defendant breached the duty of care; and (3) as a direct and proximate result of the defendant‘s breach, the plaintiff suffered injury. See Texler v. D.O. Summers Cleaners, 81 Ohio St.3d 677, 680, 693 N.E.2d 271 (1998); Jeffers v. Olexo, supra, at 142; Menifee v. Ohio Welding Products, Inc., 15 Ohio St.3d 75, 472 N.E.2d 707 (1984). If a defendant points to evidence illustrating that the plaintiff will be unable to prove any one of the foregoing elements, the defendant is entitled to judgment as a matter of law. See Feichtner v. Cleveland, 95 Ohio App.3d 388, 394, 642 N.E.2d 657 (1994); Keister v. Park Centre Lanes, 3 Ohio App.3d 19, 443 N.E.2d 532 (1981).
{¶17} As this Court has previously noted:
” ‘Under Ohio law, the driver of a motor vehicle proceeding over a through street in a lawful manner has the absolute right
of way over a vehicle on an intersecting stop street, and the driver on the through street may ordinarily assume that such right of way will be respected and observed by the driver of the vehicle on the intersecting stop street.’ ” Earles v. Smith, 4th Dist. Lawrence No. 99CA28, 2000 WL 977896, *4; quoting Timmons v. Russomano, 14 Ohio St.2d 124, 236 N.E.2d 665 (1968), paragraph one of the syllabus; See, also, Parton v. Weilnau, 169 Ohio St. 145, 156, 158 N.E.2d 719, 727 (1959).
However, when a vehicle is not proceeding in a lawful manner, the driver of the vehicle loses the right of way.1 Earles at *4; citing Morris v. Bloomgren, 127 Ohio St. 147, 187 N.E.2d 2 (1933), paragraph three of the syllabus (stating that when a vehicle ” ‘is not proceeding in a lawful manner in approaching or crossing the intersection * * * such vehicle loses its preferential status’ “). ” ‘[T]he law gives to the operator of a vehicle on the highway who has the right of way a shield, an absolute right to proceed uninterruptedly, but he forfeits the shield if he fails to proceed in a lawful manner.’ ” Earles at *4; quoting Vavrina v. Greczanik, 40 Ohio App.2d 129,
{¶18} Further, although motorists have a duty to look out for the other motorists, motorists ” ‘may rightfully assume the observance of the law and the exercise of ordinary care by others, and action by him in accordance with such assumption in the absence of notice or knowledge to the contrary is not negligence.’ ” Earles at *4 (internal citations omitted). It is important to note at this juncture that Appellant is alleged to have failed to yield. His own expert testified that, in addition to the speed of Appellee‘s vehicle, “failure on the part of the juvenile operating the four wheeler to yield the right-of-way[]” was the cause of the accident.
“(A) The operator of a vehicle, streetcar, or trackless trolley about to enter or cross a highway from any place other than another roadway shall yield the right of way to all traffic approaching on the roadway to be entered or crossed.”
{¶19} Here, there was conflicting testimony regarding the speed in which Appellee was operating his vehicle leading up to the collision at issue. Appellee maintains that he was traveling within the posted speed limit of 55
{¶20} However, as set forth above, construing the evidence in favor of Appellant, as the non-moving party, and assuming arguendo that Appellee was speeding and therefore breached a duty owed to Appellant, issues of comparative negligence come into play in this case as we reach the proximate cause portion of the negligence analysis.
“The contributory fault of a person does not bar the person as plaintiff from recovering damages that have directly and proximately resulted from the tortious conduct of one or more other persons, if the contributory fault of the plaintiff was not
greater than the combined tortious conduct of all other persons from whom the plaintiff seeks recovery in this action and of all other persons from whom the plaintiff does not seek recovery in this action. The court shall diminish any compensatory damages recoverable by the plaintiff by an amount that is proportionately equal to the percentage of tortious conduct of the plaintiff as determined pursuant to
section 2315.34 of the Revised Code .”
{¶21} Again, assuming for purposes of argument that genuine issues of material fact remain regarding the duty and breach elements, we believe that no genuine issues of material fact exist regarding the proximate cause element. As we explain below, reasonable minds could only conclude that Appellant‘s negligence in failing to protect himself against a known risk, specifically, failing to yield to an oncoming vehicle while crossing a public roadway from one driveway to another driveway, and instead driving his ATV right into its path far exceeded Appellee‘s negligence. Thus, even if Appellee was negligent, under comparative negligence principles applied to the facts in the case sub judice, Appellant cannot recover.
{¶22} “The rule of proximate cause ‘requires that the injury sustained shall be the natural and probable consequence of the negligence alleged; that
{¶23} Ordinarily, proximate cause is a question of fact for the jury. Strother v. Hutchinson, 67 Ohio St.2d 282, 288, 423 N.E.2d 467 (1981); citing Clinger v. Duncan, 166 Ohio St. 216, 141 N.E.2d 156 (1957). However, “where no facts are alleged justifying any reasonable inference that the acts or failure of the defendant constitute the proximate cause of the injury, there is nothing for the jury [to decide], and, as a matter of law, judgment must be given for the defendant.” Kemerer v. Antwerp Bd. of Edn., 105 Ohio App.3d 792, 796, 664 N.E.2d 1380 (1995); quoting Case v. Miami Chevrolet Co., 38 Ohio App. 41, 45-46, 175 N.E.2d 224 (1930); Vermett v. Fred Christen & Sons Co., 138 Ohio App.3d 586, 612, 741 N.E.2d 954 (6th Dist.2000) (“While proximate cause is often a jury question, summary judgment is proper on this issue when appellant has failed to meet his burden to produce evidence to challenge unfavorable evidence already in the record.“). Further, even if Appellee was negligent per se, in operating his vehicle at an unreasonable rate of speed, ” ‘[n]egligence per se does not equal liability per se. Simply because the law may presume negligence from a person‘s violation of a statute * * * does not mean that the law presumes
{¶24} Like the trial court, we do not believe that any reasonable person could conclude that Appellant‘s injuries proximately resulted from Appellee‘s alleged speeding. Rather, we find the proximate cause of Appellant‘s injuries to be his own negligence in pulling directly into the path of Appellant‘s vehicle. Of importance, although Appellant has no memory of the events relating to the collision, both he and his father, Travis, testified in their depositions that regardless of the speed of an oncoming vehicle, Joshua had been instructed not to try to cross the road when a vehicle was in view. For reasons which remain unknown, however, Joshua attempted to cross the road when Appellee‘s vehicle was only 200 feet and two seconds away. These facts are not disputed. Further, as stated by Appellant‘s own expert and as relied upon by the trial court, even if Appellee had been going the speed limit of 55 m.p.h., at the time Appellant entered into Appellee‘s lane of travel, Appellee had, at the most, two seconds to react. The testimony offered by Appellant‘s own expert indicates that Appellee reacted
{¶25} Additionally, Appellants’ expert testified as follows with respect to the weaknesses in Appellants’ case, as well as the contributing factors and proximate cause of the accident:
“Q: What did you think the cons were based on your initial scene inspection, whatever thought process you put to it after that point?
A: Well, the cons were the ATV pulled out into the path of a northbound vehicle.
Q: And he pulled out, based on your reconstruction, at a point that it presented an imminent hazard to himself, did he not?
A: Yes.
* * *
Q: You certainly would agree with me that this four wheeler entering the roadway would be considered a sudden or startling event to a driver?
A: Yes, sir.
* * *
Q: But I think you would agree he did react to this startling event within a reasonable time?
A: Yes, sir.
Q: And we got sidetracked a little bit. I‘m saying he did – there is evidence he did take evasive action when he perceived this event, which would include steering right and braking, correct?
A: Yes, sir.
* * *
Q: Would you also agree with me there is no indication whatsoever that the minor did anything to try to avoid this accident?
A: I don‘t have any data.
Q: That‘s what I‘m asking you. Is there any data, is there anything you uncovered in your entire investigation that would lead you to believe the minor did anything to try to avoid this accident?
A: No, sir.
Q: And in fact, does it not look almost like the minor drove right into the front corner of Mr. Lemon‘s van?
A: That is what happened.
* * *
Q: * * * Assuming he was going 72 miles an hour, does that mean essentially the minor pulled out about two seconds after – or two seconds before the accident and after this vehicle would have been in his line of sight for approximately 4.3 seconds?
A: That‘s approximately correct.
* * *
Q: Let‘s get back to your expertise then. Would you certainly agree had the minor looked to his right at whatever speed Mr. Lemon was traveling, he had the ability to see him before he started across State route 7?
A: Yes, sir.
Q: And would you also agree whether Mr. Lemon was traveling at 72 miles an hour or 62 miles an hour or 55 miles an hour, the minor did not start that movement across the road at the point Mr. Lemon just got into his line of sight?
A: True.
Q: Give or take, the minor did not start that movement across the road until Mr. Lemon was about two seconds away from the point of impact?
A: Somewhere in that neighborhood.”
{¶26} Further, under Ohio‘s comparative negligence statute, the fact finder apportions the percentage of each party‘s negligence that proximately caused the plaintiff‘s damages.
{¶27} Generally, issues of comparative negligence are for the jury to determine unless the evidence is so compelling that reasonable minds can reach but one conclusion. Id. at ¶ 12. While issues of contributory and comparative negligence are typically determined by the trier of fact, ” ’ “summary judgment may be appropriate under the comparative negligence statute where, after construing the evidence most strongly in plaintiff‘s favor, a reasonable person could only conclude that plaintiff‘s negligence was greater than the negligence of defendant.” ’ ” Id.; quoting
{¶28} As this Court explained in Earles v. Smith, supra, at * 5:
“[W]eighing the respective negligence of a plaintiff and a defendant is a difficult task and should generally be within the province of a jury. However, if a defendant is not negligent or if the plaintiff‘s negligence clearly outweighs any negligence of the defendant (i.e. the situation we have here before us in the case sub judice), the granting of a summary judgment is entirely appropriate.”
{¶29} In Deem, supra, we noted that contributory negligence has been defined as ” ‘any want of ordinary care on the part of the person injured, which combined and concurred with the defendant‘s negligence and contributed to the injury as a proximate cause thereof, and as an element without which the injury would not have occurred.’ ” Deem at ¶ 13; quoting
{¶30} Here, as we have discussed, Appellant drove his ATV across a public roadway into the path of an oncoming vehicle at a point in which the oncoming vehicle was merely two hundred feet and two seconds away. Although Appellee may have been speeding, and even assuming he was, Appellant‘s own expert testified that Lemon responded appropriately given the time he had to react to the situation and that Appellant‘s own actions created an imminent hazard to himself. In light of the foregoing we believe that the evidence reveals that Appellant‘s negligence far outweighs any negligence on Appellee‘s part. Thus, reasonable minds can only conclude that Appellant‘s negligence was greater than Appellee‘s negligence. Because, as a matter of law, Appellant‘s contributory negligence exceeds any negligence on Appellee‘s part, Appellant may not recover. Again, even if we assume that genuine issues of material fact remain regarding whether Appellee owed Appellant a duty and breached that duty, no genuine issues of material fact remain regarding proximate cause and Appellant‘s contributory negligence. Therefore, the trial court properly granted summary
JUDGMENT AFFIRMED.
{¶31} I concur in judgment and opinion with the exception that I conclude that determining the existence of a duty is always a question of law for the court to decide, notwithstanding the need to consider facts in making that determination. See Martin v. Lambert, 2014-Ohio-715, 8 N.E.3d 1024, ¶ 17 (4th Dist.), citing Grover v. Eli Lilly & Co., 63 Ohio St.3d 756, 762, 591 N.E.2d 696 (1992) (“The existence of a duty is a question of law for a court to decide, even if resolving that question requires the court to consider the facts or evidence“).
{¶32} In all other regards, I concur in judgment and opinion.
It is ordered that the JUDGMENT BE AFFIRMED and that the Appellees recover of Appellants any costs herein.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Washington County Common Pleas Court to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of this entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Hoover, P.J.: Concurs in Judgment and Opinion.
Harsha, J.: Concurs with Concurring Opinion.
For the Court,
BY: ______________________________
Matthew W. McFarland,
Administrative Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.