Zieger v. BurchwellZieger v. Burchwell
CIVIL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS Case No. CA2009-11-077
Brett Goodson, Goodson & Company, Ltd., Stephanie Day, 110 East Eighth Street, Suite 200, Cincinnati, Ohio 45202-2132, for plaintiff-appellant
Thomas P. Erven, Young & Alexander Co., L.P.A., 110 Boggs Lane, Suite 242, Cincinnati, Ohio 45246, for defendant-appellee
YOUNG, J.
{¶1} Plaintiff-appellant, Heather May Zieger, appeals a decision of the Clermont County Court of Common Pleas granting summary judgment in favor of defendant-appellee, Mary Rachel Burchwell. For the reasons that follow, we affirm.
{¶2} On October 4, 2006, around 9:10 p.m., appellant and her boyfriend, Chris Jones, walked south across State Route 125 to go to the SuperAmerica
{¶3} When appellant was several feet from the curb, appellee‘s vehicle struck her and propelled her into a nearby grassy area. As a result of the accident, appellant had two broken legs, shattered knees, pelvic and back fractures, and lacerations in her hip and thigh.
{¶4} In her deposition, appellee stated that at the time of the accident, she was traveling west in her 2006 Toyota Corolla around the 45 m.p.h. speed limit. She further testified that it was dark out, and when her headlights reflected off of the white grocery bag Jones was carrying, she slowed down to permit him to cross the road. As Jones crossed, appellee testified that she looked to her right to ensure that Jones had safely negotiated the rest of the highway. Appellee testified that she did not see appellant prior to the accident. As such, she did not apply her brakes or take any evasive action before the accident.
{¶5} Appellant filed suit against appellee, alleging that appellee was negligent, seeking damages in excess of $25,000. On July 17, 2009, appellee moved for summary judgment, which the trial court granted on October 30, 2009. Appellant timely appealed, raising two assignments of error:
{¶7} “THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT IN RENDERING SUMMARY JUDGMENT IN FAVOR OF APPELLEE, DESPITE THE MANY GENUINE ISSUES OF MATERIAL FACT IN DISPUTE.”
{¶8} Assignment of Error No. 2:
{¶9} “THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT IN RENDERING SUMMARY JUDGMENT IN FAVOR OF THE APPELLEE WHEN IT FOUND THAT APPELLEE OWED NO DUTY TO MS. ZIEGER TO KEEP A PROPER LOOKOUT.”
{¶10} As these assignments of error are interrelated, for ease of discussion, we will address them together.
{¶11} Summary judgment is a procedural device used to terminate litigation and avoid a formal trial when there are no issues in a case to try. See Forste v. Oakview Constr., Inc., Warren App. No. CA2009-05-054, 2009-Ohio-5516, ¶7. This court reviews summary judgment decisions de novo. Id. Summary judgment is appropriate under
{¶12} In the case at bar, appellant argues that appellee‘s negligence caused her injuries. Specifically, appellant presents four issues within her assignments of error: (1) genuine issues of material fact exist from which a reasonable jury could find that appellee “failed to yield the right-of-way” to appellant; (2) appellee breached her duty to keep a “proper lookout” for pedestrians in the roadway under
Pedestrian‘s Right-of-Way
{¶13} First, it is rudimentary that a claim of negligence requires the plaintiff to show the existence of a duty, a breach of that duty, and an injury resulting proximately from the breach. Higgins, Clinton App. No. CA99-08-022 at 2. Appellant first argues that she had the right-of-way, and that appellee‘s failure to yield constituted negligence. Appellant argues that when she stepped off the curb into the eastbound lanes of traffic, she was across from the “T” intersection of Beverly Drive and S.R. 125. Appellant argues that this intersection created an “implied crosswalk” that permitted her to cross the highway with the “right to travel uninterruptedly * * * and to assume, in the absence of knowledge to the contrary, that others [would] obey
{¶14} The statutory definition of a crosswalk is as follows: “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[.]”
{¶15} The evidence also reveals that the paint chips from appellee‘s vehicle and appellant‘s belongings, including her grocery bags and purse, were all located to the east of the intersection. In light of the evidence presented, no genuine issue of material fact remains on the issue of whether appellant was in an implied crosswalk at the time of the accident. As to this issue, reasonable minds can come to but one conclusion, and that conclusion is adverse to appellant. The nearest potential “implied,” or unmarked, crosswalk was located a minimum of 35 feet from the point of
{¶16} If a pedestrian crosses a roadway “at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection,” he or she must “yield the right of way to all vehicles upon the roadway.” (Emphasis added.)
“Proper Lookout”
{¶17} Appellant next argues that even if she was not in an implied crosswalk, appellee still had a duty to keep a “proper lookout” for pedestrians under
{¶18} Generally, a motor vehicle has the right to proceed uninterruptedly in a lawful manner in the direction in which it is traveling in preference to any vehicle or pedestrian approaching from a different direction crossing its path. Higgins, Clinton App. No. CA99-08-022 at 2;
{¶19} As previously mentioned, because appellant was not within an “implied crosswalk” at the time of the accident, it is clear that appellee had the right-of-way as she traveled westbound on S.R. 125. Appellant presented no evidence that appellee operated her motor vehicle in violation of any law or ordinance. It is undisputed that appellee was operating her motor vehicle within the legal speed limit at the time of the accident. In addition to appellant‘s expert‘s calculation that appellee was driving between 43 and 50 m.p.h., an independent witness to the accident testified that appellee was driving ahead of several other automobiles, but “wasn‘t pulling away * * * from the other cars.” Because appellee had the right-of-way, whether summary judgment was appropriate on appellant‘s second claim depends on whether appellee failed to exercise due care to avoid colliding with appellant.
{¶20} Appellant argues that when appellee “observed Mr. Jones in her lane of travel, she ‘discovered a dangerous and perilous situation.‘” Appellant argues that because she was “only 3-4 feet behind Mr. Jones * * * [she] was clearly within the perilous situation discovered by [a]ppellee,” who therefore had a “statutory duty” not to collide with appellant. Again, appellant misstates the current law in Ohio. Whether a duty exists depends on the foreseeability of the harm. Higgins, Clinton App. No. CA99-08-022 at 2. The test for foreseeability is whether a reasonably prudent person would have anticipated that an injury was likely to result from the performance or non-performance of an act. See Id.; Wallace v. Ohio Dept. of Commerce, 96 Ohio St.3d 266, 2002-Ohio-4210, ¶23. In determining whether a reasonably prudent person would have perceived the risks of an injury, “only those circumstances which they perceived, or should have perceived, at the time of their respective actions should be considered.” Higgins at 2, quoting Menifee v. Ohio Welding Products (1984), 15 Ohio St.3d 75, 77.
{¶21} It is common knowledge that many animals travel in packs, flocks, gaggles, or groups, and where one is present, there are likely more to follow. However, humans are no such animal. Simply because appellee noticed Mr. Jones traveling across the highway does not mean that a reasonably prudent driver would anticipate that another human would appear behind him. Simply stated, humans are not “pack” animals. Thus, we decline to hold that a reasonably prudent person should expect that multiple adults would attempt to cross a five-lane highway in the dark, without the use of crosswalks. Furthermore, appellant‘s own accident reconstruction expert stated that “motorists typically will notice an object/pedestrian to their right quicker than those to the left, primarily because low-beam headlight energy is directed to the right side of the roadway[.] * * * [W]hen confronted with a low-contrast object, such as a pedestrian wearing dark clothing, low-beam headlights may not provide adequate detection-identification distance at speeds in excess of about 35 miles per hour. If the pedestrian is coming from the left side of the vehicle * * * the situation can be appreciably worse.” (Emphasis added.)
{¶22} In the case at bar, appellee drove west as appellant walked north, thus
Comparative Negligence Doctrine
{¶23} Appellant‘s third issue relates to the doctrine of comparative negligence. Appellant essentially asserts that if she acted negligently in crossing the highway, reasonable minds could still conclude that appellee‘s negligence was the “greater proximate cause of the collision.” However, in light of our prior determination that appellee breached no duty of care owed to appellant, there is no issue of comparative negligence between the parties in this case. Thus, we decline to address appellant‘s third issue presented on appeal.
Assured Clear Distance Rule
{¶24} In her fourth and final argument, appellant asserts that appellee was negligent per se for failing to maintain an assured clear distance ahead.
{¶25} Appellant argues that there is substantial evidence that she was in appellee‘s “lane of travel” because “[t]hat is where she was struck.” Appellant also argues that she was “discernable” because she was wearing a white shirt and carrying two white plastic grocery bags. Appellant also argues that she was at a distance sufficiently far ahead of appellee to have made it possible for her to avoid the collision.
{¶26} In Maple, the evidence surrounding the collision between vehicle and pedestrian was similar to the case at bar. In Maple, neither party was cited for traffic violations, the road contour at the scene of the accident was “straight and level,” the road conditions were wet, visibility was low because the weather was cloudy, and the pedestrian stood in the northbound lane of the road when he was struck by a vehicle traveling northbound, and he was not in a marked crosswalk. Maple, 2006-Ohio-3536 at ¶15. The parties did not dispute the first three elements of the assured clear distance claim, but disagreed as to whether the pedestrian was “reasonably discernable.” Testimony revealed that the pedestrian wore dark blue pants and a “lighter” colored shirt, and that, despite the use of the driver‘s headlights, neither
{¶27} After carefully reviewing the record in the case at bar, we find that the evidence is so one-sided that appellee was entitled to judgment as a matter of law on this issue. Here, as in Maple, neither party was cited for a traffic violation, the road was relatively straight and level, visibility was low because it was nighttime, and appellant crossed the road outside of a crosswalk. Like the pedestrian in Maple, appellant wore dark pants and a “lighter” colored (white) shirt, and, despite the use of appellee‘s headlights, neither party saw the other before the accident. However, unlike Maple, appellee crossed S.R. 125 in a northerly direction, perpendicular to appellee‘s westward path.
{¶28} On such evidence, no reasonable jury could find that appellant was (1) stationary or moving in the “same direction as the driver,” as she walked north while appellee drove west; or (2) “reasonably discernable” at the time of the accident, when visibility was low, appellant was not in a crosswalk, and her clothing was not a sufficient indicator that a pedestrian was located ahead. Accordingly, appellee is also entitled to summary judgment on the claim that she was negligent for failing to maintain an assured clear distance in violation of
{¶29} Judgment affirmed.
BRESSLER and RINGLAND, JJ., concur.