[Cite as Crosby v. Radenko, 2011-Ohio-4662.]
IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO
JESSICA CROSBY :
Plaintiff-Appellant : C.A. CASE NO. 24343
vs. : T.C. CASE NO. 09CV9538
DZAMIC RADENKO et al. : (Civil Appeal from
Common Pleas Court)
Defendants-Appellees :
. . . . . . . . .
O P I N I O N
Rendered on the 16th day of September, 2011.
. . . . . . . . .
Timothy S. Chappars, Atty. Reg. No.0007122, P.O. Box 280, Xenia,
OH 45385
Attorney for Plaintiff-Appellant
Patrick McCaffrey, Atty. Reg. No.0067293; Audrey E. Varwig, Atty.
Reg. No. 0073265, 2109 Stella Court, Columbus, OH 43215
Attorneys for Defendants-Appellees
. . . . . . . . .
GRADY, P.J.:
{¶ 1} This is an appeal from a summary judgment for the
defendant on the plaintiff’s claim for personal injuries and
property loss arising from a motor vehicle collision. The
collision took place on Interstate Route 70, near the exit for
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Englewood, Ohio, during the daylight hours. A tractor-trailer
owned and operated by Unlimited Freight, Inc. was traveling in
an eastbound direction when its driver, Dzamic Radenko, pulled
to a stop on the berm of the right lane due to mechanical trouble
of some sort. Whatever the difficulty was, Radenko subsequently
attempted to reenter the same lane of travel. When he began his
maneuvers to reenter his lane of travel, a passenger vehicle
proceeding in the same lane of travel came to a stop behind the
Unlimited Freight, Inc. tractor-trailer. Another tractor-trailer
then came to a stop behind the passenger vehicle.
{¶ 2} Jessica Crosby was driving a Honda Civic eastbound in
the same lane of travel when she came upon the line of vehicles
stopped ahead of her. Unable to stop to avoid colliding with the
tractor-trailer last in line, Crosby veered into the left-hand
lane. She lost control of her vehicle, causing it to veer back
into the right-hand lane and collide with the tractor-trailer owned
by Unlimited Freight, Inc. The passenger vehicle and the other
tractor-trailer that had stopped were not involved in the
collision.
{¶ 3} Crosby commenced an action against Radenko and Unlimited
Freight, Inc., on claims for relief for bodily injuries and property
loss, alleging negligence on the part of Radenko and Unlimited
Freight, Inc. in the operation of its tractor-trailer, and against
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Unlimited Freight, Inc., in failing to train Radenko. Following
responsive pleadings and depositions, the Defendants moved for
summary judgment. The trial court granted that motion, relying
on the rule of intervening/superseding negligence we applied in
Didier v. Johns (1996), 114 Ohio App.3d 746. Crosby appeals.
ASSIGNMENT OF ERROR
{¶ 4} “THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT
IN GRANTING APPELLEE UNLIMITED FREIGHT, INC.’S MOTION FOR SUMMARY
JUDGMENT.”
{¶ 5} In Didier v. Johns, we held that a plaintiff’s negligence
per se for a violation of the assured clear distance statute,
combined with the lack of any negligence on the part of a third
party involved in a collision, relieved a defendant of liability
for his prior negligent act, under the doctrine of
intervening/superseding cause. We believe that holding merits
reexamination.
{¶ 6} An act or omission that falls below the particular
standard of conduct required to satisfy a duty of care imposed
by law is negligence. When that negligence proximately results
in injuries and losses to other persons, the actor is legally liable
to such persons in money damages in an amount that will compensate
them for the injuries and losses each suffered.
{¶ 7} Evidence of negligence may be prima facie or per se.
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When negligence is prima facie, the evidence of negligence is
subject to rebuttal. When there is negligence per se, it is
conclusive of that question. Fightmaster v. Mode (1928), 31 Ohio
App.273.
{¶ 8} The distinction between negligence and negligence per
se is the means and method of their ascertainment. “The former
must be found by the jury from the facts, conditions, and
circumstances disclosed by the evidence, while the latter is a
violation of a specific requirement of law or ordinance, the only
fact for determination by the jury being the commission or omission
of the specific act inhibited or required.” Swoboda v. Brown
(1939), 129 Ohio St. 512, paragraph four of the Syllabus by the
Court.
{¶ 9} “Where a legislative enactment imposes upon any person
a specific duty for the protection of others, and his neglect to
perform that duty proximately results in injury to such another,
he is negligent per se or as a matter of law.” Eisenhuth v. Moneyhon
(1954), 161 Ohio St. 367, paragraph two of the Syllabus by the
Court.
{¶ 10} The rule of Eisenhuth is subject to two qualifications.
First, “[i]n order for the violation of a statute or ordinance
to constitute negligence per se, the statute or ordinance violated
must be a specific requirement to do or to omit to do a definite
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act; the violation of a statute or ordinance prescribing merely
a rule of conduct is not negligence per se.” 70 Ohio Jurisprudence
3d Negligence, §56.
{¶ 11} Second, a finding of negligence per se “does not mean
that (such) negligence was the sole proximate cause, or even a
proximate cause, of the (event) that resulted in (the injury and
loss.)” Smiddy v. The Wedding Party, Inc. (1987), 39 Ohio St.3d
35, 40. The issue is for the jury if reasonable minds could differ
as to the proximate cause of that event. Id. Similarly, if the
jury finds that the negligence per se and the negligence of another
party were proximate causes of that event, “the issue of comparative
negligence is for the jury.” Id.
{¶ 12} The contributory fault of the plaintiff may be asserted
as an affirmative defense in a negligence action. R.C. 2315.32(B).
If established, the plaintiff’s contributory fault does not bar
the 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 the action and of all other persons
from whom the plaintiff does not seek recovery in the action.
R.C. 2315.33.
{¶ 13} The assured clear distance statute, R.C. 4511.21(A)
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states:
{¶ 14} “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 the person to bring it to a stop within the assured clear
distance ahead.”
{¶ 15} Violation of the assured clear distance statute, R.C.
4511.21, is negligence per se. Piper v. McMillan (1999), 134 Ohio
App.3d 180. “Violation of the statute and a finding of negligence
per se depends on whether there is evidence that the driver collided
with an object which (1) was ahead of him in this path of travel,
(2) was stationary or moving in the same direction as the driver,
(3) did not suddenly appear in the driver’s path, and (4) was
reasonably discernible.” Junge v. Brothers (1985), 16 Ohio St.3d
1, 3. “Where conflicting evidence is introduced as to any one
of the elements necessary to constitute a violation of the (assured
clear distance) statute, a jury question is created.” Tomlinson
v. Cincinnati (1983), 4 Ohio St.3d 66, 69.
{¶ 16} The trial court found that Plaintiff-Appellant Crosby
was negligent per se because she violated the assured clear distance
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statute. Crosby argues that the trial court erred in granting
summary judgment for Unlimited Freight, Inc. and its driver,
Radenko, because “[a] jury should have been permitted to find
that [her] actions in taking emergency avoidance maneuvers were
not negligent . . .” A sudden emergency can relieve an actor of
negligence per se. The trial court rejected that contention,
relying on Cox v. Polster (1963), 174 Ohio St. 224, which held:
{¶ 17} “Where three motor vehicles are proceeding in the same
direction in the same lane of traffic, the fact that the first
car comes to a sudden stop causing the second car to swerve into
another lane of traffic does not create a sudden emergency as to
the third car so as to relieve the driver thereof from compliance
with the assured-clear-distance-ahead statute in relation to the
stopped first car.” Syllabus by the Court.
{¶ 18} We agree with the trial court. R.C. 4511.21(A) imposed
a duty on Crosby to maintain an assured clear distance between
her car and the tractor-trailer immediately in front of her, which
came to a stop in Crosby’s lane of travel. That tractor-trailer
did not suddenly appear in Crosby’s path after returning in to
the road. See: Ziegler v. Wendel Poultry Services, Inc. (1993),
67 Ohio St.3d 10. Neither was the tractor-trailer concealed by
fog, as in Ziegler. Instead, it was reasonably discernible, having
stopped in Crosby’s path during daylight hours and absent
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extraordinary weather conditions. Piper v. McMillan. The fact
that Crosby could not see Unlimited Freight, Inc.’s tractor-trailer
at the head of the line of vehicles is immaterial to Crosby’s R.C.
4511.21(A) violation, notwithstanding the fact that it was
Unlimited Freight, Inc.’s tractor-trailer that Crosby subsequently
collided with. The trial court did not err when it held that Crosby
was negligent per se in operating her vehicle as she did.
{¶ 19} The further issue to be determined is whether the trial
court, having found Crosby negligent per se, erred when it granted
summary judgment for Unlimited Freight, Inc. on the issue of
proximate cause by applying our holding in Didier v. Johns with
respect to the doctrine of intervening/superseding cause.
Regarding that doctrine, in Berdyck v. Shinde (1993), 66 Ohio St.3d
573, the Supreme Court wrote, at 584-585:
{¶ 20} “[30] [31] The intervention of a responsible human agency
between a wrongful act and an injury does not absolve a defendant
from liability if that defendant's prior negligence and the
negligence of the intervening agency co-operated in proximately
causing the injury. If the original negligence continues to the
time of the injury and contributes substantially thereto in
conjunction with the intervening act, each may be a proximate,
concurring cause for which full liability may be imposed.
‘Concurrent negligence consists of the negligence of two or more
9
persons concurring, not necessarily in point of time, but in point
of consequence, in producing a single indivisible injury.’ Garbe
v. Halloran (1948), 150 Ohio St. 476, 38 O.O. 325, 83 N.E.2d 217,
paragraph one of the syllabus.
{¶ 21} “[32] [33] In order to relieve a party of liability,
a break in the chain of causation must take place. A break will
occur when there intervenes between an agency creating a hazard
and an injury resulting therefrom another conscious and responsible
agency which could or should have eliminated the hazard. Hurt v.
Charles J. Rogers Transp. Co. (1955), 164 Ohio St. 323, 58 O.O.
119, 130 N.E.2d 824, paragraph one of the syllabus; Thrash v.
U-Drive-It Co. (1953), 158 Ohio St. 465, 49 O.O. 402, 110 N.E.2d
419, paragraph two of the syllabus. However, the intervening cause
must be disconnected from the negligence of the first person and
must be of itself an efficient, independent, and self-producing
cause of the injury.”
{¶ 22} In Hurt v. Charles J. Rogers Transportation Co., the
manufacturer of forgings had negligently packaged them in a box.
The box was given to a trucking company for shipment. Along the
way, the box broke open. The truck driver discovered the problem
and attempted to repair the box. The attempt failed and the box
again broke open, allowing one of the forgings to crash through
the windshield of a following car. The Supreme Court held that
10
the manufacturer, though it had negligently packed the forgings,
was relieved of liability by the truck driver’s intervening
negligence. The court reasoned:
{¶ 23} “Where there intervenes between an agency creating a
hazard and an injury resulting from such hazard another conscious
and responsible agency which could or should have eliminated the
hazard, the original agency is relieved from liability. A break
in the chain of causation thereby takes place which operates to
absolve the original agency.” Paragraph one of the Syllabus by
the court.
{¶ 24} In Thrash v. U-Drive-It Co., the owner of a motor vehicle
sold it to a dealer, who resold it to the plaintiff. The plaintiff
was injured in an accident caused by a defect in the vehicle.
He sued the manufacturer, the prior owner, and the used car dealer.
The Supreme Court held that the prior owner was not legally liable,
writing:
{¶ 25} “Where there intervenes between an agency creating a
hazard and an injury resulting from such hazard another conscious
and responsible agency which could or should have eliminated the
hazard, the original agency is relieved from liability. A break
in the chain of causation thereby takes place which operates to
absolve the original agency.
{¶ 26} “* * *
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{¶ 27} “Although a dealer in used motor vehicles is not an
insurer of the safety of the vehicles he sells, he is generally
under a duty to exercise reasonable care in making an examination
thereof to discover defects therein which would make them dangerous
to users or to those who might come in contact with them, and upon
discovery to correct those defects or at least give warning to
the purchaser. Such rule is of particular significance where the
sale of such a vehicle is accompanied by representations or
warranties as to its fitness for use.” Paragraphs two and four
of the Syllabus by the Court.
{¶ 28} Hurt and Thrash illustrate a significant point. The
“agency” that intervenes between the negligence of a primary
tortfeasor and the injuries that could result from that
tortfeasor’s negligence must have had a capacity to prevent that
injury from occurring, and breached a duty to do so through the
agency’s own negligent act or omission. Several cases have applied
that requirement to chain-reaction collisions involving multiple
vehicles similar in their facts to Didier v. Johns and the present
case.
{¶ 29} In Shinaver v. Szymanski (1984), 14 Ohio St.3d 51, a
multi-vehicle accident occurred when Szymanski, the driver of the
lead vehicle in a line of five vehicles, lost control and her vehicle
came to rest after striking a guard rail. The drivers of two
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passenger vehicles following behind the lead vehicle were able
to stop, but a tractor-trailer next in line was not. The
tractor-trailer collided with the vehicle in front of it, pushing
it and then the vehicle second in line into the Szymanski’s lead
vehicle. The last vehicle in line, driven by Shinaver, struck
the rear of the tractor-trailer. Shinaver was injured and his
spouse was killed.
{¶ 30} Shinaver commenced an action for negligence and wrongful
death against Szymanski and others allegedly at fault. The trial
court granted summary judgment for the defendants on a finding
that the plaintiff, Shinaver, was contributorily negligent in
failing to maintain an assured clear distance ahead in violation
of R.C. 4511.21(A), relieving the defendants of liability. The
court of appeals affirmed. The Supreme Court reversed, in part,
finding that the trial court erred in failing to apply the
principles of comparative negligence required by statute.
{¶ 31} With respect to the drivers of the two passenger vehicles
following behind the lead vehicle driven by Szymanski, both of
which safely came to a stop, the Supreme Court held that neither
driver was at fault because “[t]here was no evidence whatsoever
that any course of conduct reasonably available to (them) could
have prevented the accident in question, nor that their conduct
had any causal connection with plaintiff’s injuries or his wife’s
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death.” Id., at p. 54. Therefore, the summary judgment in their
favor was affirmed. With respect to the driver of the
tractor-trailer that struck the two passenger vehicles that had
stopped, and the plaintiff, Shinaver, who struck the
tractor-trailer, the Supreme Court held that both were negligent
per se for violation of the assured clear distance statue, R.C.
4511.21(A). The Supreme Court further held:
{¶ 32} “Where the plaintiff driver is travelling immediately
behind the defendant driver, and both parties are negligent per
se for failing to maintain the assured clear distance ahead in
violation of R.C. 4511.21, the question of whether the negligence
of either party was the proximate cause of the ensuing collision,
in which the plaintiff driver sustained personal injuries, is
for jury determination. The defendant driver immediately ahead
of plaintiff has no right to summary judgment.” Id., at p. 55.
{¶ 33} In Shinaver, the respective and proportionate
negligences of the plaintiff and the driver of the tractor-trailer
were necessarily to be weighed pursuant to R.C. 2315.34 on
comparative negligence principles in determining the compensatory
damages recoverable by the plaintiff from all defendants, including
the defendant driver of the lead vehicle, Szymanski. The doctrine
of intervening/superseding cause did not apply. The Seventh
District Court of Appeals wrote: “The import of Shinaver is that
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in a multivehicle collision case, the driver of the first or lead
vehicle could be held liable for damages to vehicles following
the driver if he/she was negligent.” Piper v McMillan (1999),
134 Ohio App.3d 180, 194. Two cases cited for that proposition
in Piper, both decisions of the Tenth District Court of Appeals,
illustrate why the doctrine of intervening/superseding cause does
not apply in that context.
{¶ 34} In Grange Mutual Casualty Company v. Fleming (1982),
8 Ohio App.3d 164, three vehicles were involved in a chain-reaction
collision after the lead vehicle improperly came to a stop on a
roadway, contrary to the directions from posted traffic signs.
The next vehicle was able to come to a stop safely, but the third
vehicle was not. It struck the second vehicle, pushing the second
vehicle forward into the lead vehicle. The driver of the second
vehicle was injured, and he commenced an action against the driver
of the lead vehicle on a claim of negligence per se, for failing
to conform to the traffic signs on the highway. The driver of
the lead vehicle joined the driver of the third vehicle on a
cross-claim, alleging negligence per se arising from an assured
clear distance violation.
{¶ 35} The trial court in Fleming directed a verdict in favor
of the driver of the third vehicle on the driver of the lead
vehicle’s cross-claim. The appellate court approved that holding,
15
but not the trial court’s further holding that the negligence of
the driver of the lead vehicle was not a proximate cause of the
injuries suffered by the driver of the second vehicle, who was
the plaintiff in the action. The court reasoned that, on the issue
of foreseeability, reasonable minds could find that the driver
of the lead vehicle “would anticipate that, although a vehicle
immediately following him would be able to stop to avoid a
collision, a third vehicle following the second vehicle would not
be able to do so.” Id., at 167.
{¶ 36} The court in Fleming also rejected the view that the
assured clear distance violation of the driver of the third vehicle
was an intervening cause of the plaintiff’s injuries that cut off
the liability of the driver of the lead vehicle to the plaintiff.
The court held that the negligence of the driver of the lead vehicle
“set in motion the chain of events which ensued, and the causal
connection was not broken by (the driver of the third vehicle’s)
negligence under the circumstances of this case. At least,
reasonable minds could reach different conclusions on this issue.”
Id. The court reasoned that, viewing the evidence most strongly
in favor of the plaintiff, reasonable minds could find that the
drivers of the first and third vehicles were concurrent tortfeasors
whose negligences proximately caused the injuries suffered by the
driver of the second vehicle, the plaintiff in the action.
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{¶ 37} The Tenth District addressed the issue again the
following year in Baum v. Augenstein (1983), 10 Ohio App.3d 106.
In that case, when Defendant Goebel drove his pickup truck onto
Interstate 71 a cattle-feeder fell from the bed of the truck onto
the roadway. Goebel’s truck was followed by a line of vehicles,
the first of which was able to stop without colliding with the
feeder. The driver of the vehicle next in line, Plaintiff Baum,
was able to stop her automobile without striking the first vehicle.
A pickup truck driven by defendant Augenstein struck the rear
of the Baum vehicle, pushing it into the rear of the first
automobile.
{¶ 38} Baum commenced an action against Goebel and Augenstein.
The trial court granted a directed verdict for Goebel on his
contention that his negligence in not securing the feeder was not
the proximate cause of Baum’s injuries, those injuries having been
caused by the intervening negligence of Augenstein. On appeal,
the Tenth District reversed. The court wrote, at 107:
{¶ 39} “Construing the evidence most strongly in favor of
plaintiffs, the negligence of Goebel and Augenstein combined to
proximately cause plaintiffs' injuries. Reasonable minds could
conclude that the chain of events set in motion by Goebel's
negligence unfolded in rapid succession in a continuous and
unbroken fashion, with a result that the causal connection was
17
not broken by Augenstein's negligence and he and Goebel were
concurrent tortfeasors. Reasonable minds could reach different
conclusions upon the issue.”
{¶ 40} The holdings in Fleming and Baum illustrate a pertinent
distinction with respect to the doctrine of intervening/
superseding cause. In order to relieve an actor of liability,
a subsequent force must not only actively operate to produce harm
to another after the actor’s negligent act has been committed:
in addition, the force must be a superseding cause which by its
intervention prevents the prior actor from being liable for the
harm which his antecedent negligence is a substantial factor in
brining about. Restatement of the Law Second, Torts §§ 440 and
441. The Restatement further provides, at § 442:
{¶ 41} “The following considerations are of importance in
determining whether an intervening force is a superseding cause
of harm to another:
{¶ 42} “(a) the fact that its intervention brings about harm
different in kind from that which would otherwise have resulted
from the actor’s negligence;
{¶ 43} “(b) the fact that its operation or the consequences
thereof appear after the event to be extraordinary rather than
normal in view of the circumstances existing at the time of its
operation;
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{¶ 44} “(c) the fact that the intervening force is operating
independently of any situation created by the actor’s negligence,
or, on the other hand, is or is not a normal result of such a
situation;
{¶ 45} “(d) the fact that the operation of the intervening force
is due to a third person’s act or to his failure to act;
{¶ 46} “(e) the fact that the intervening force is due to an
act of a third person which is wrongful toward the other and as
such subjects the third person to liability to him;
{¶ 47} “(f) the degree of culpability of a wrongful act of a
third person which sets the intervening force in motion.”
{¶ 48} In Baum, at paragraph one of the syllabus, the court
encapsulated these considerations in a simple formula: “A trial
court errs in directing a verdict in favor of a defendant where
reasonable minds could differ on the issue of proximate cause and
conclude that the defendant and another were concurrent
tortfeasors.” And, “[c]oncurrent negligence consists of the
negligence of two or more persons concurring, not necessarily in
point of time, but in point of consequence, in producing a single
indivisible injury.” Garbe v. Halloran (1948), 150 Ohio St. 476,
paragraph one of the syllabus.
{¶ 49} In Didier v. Johns, a motorcyclist was injured when he
struck the rear of a school bus he was following after the school
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bus came to a sudden stop to avoid colliding with a vehicle coming
from the opposite direction that had crossed the center line into
the path of the school bus after the driver of the vehicle fell
asleep. The motorcyclist commenced an action against the driver
of the other vehicle. The trial court granted summary judgment
for the defendant.
{¶ 50} On appeal, we affirmed the summary judgment on findings
that the plaintiff motorcyclist violated the assured clear distance
statute and was negligent per se, and that the plaintiff
motorcyclist was therefore 100% responsible for his injuries,
despite the prior negligence of the defendant motorist, because
the bus driver’s non-negligent actions in stopping the bus broke
the chain of causation.
{¶ 51} Our rationale in Didier was flawed. “A break will occur
when there intervenes between an agency creating a hazard and an
injury resulting therefrom another conscious and responsible
agency which could or should have eliminated the hazard.” Berdyck
v. Shinde, at 585. In Didier, the hazard was created when the
motorist allowed his vehicle to cross into the path of the school
bus. If the school bus driver could or should have eliminated
the hazard, but failed to do so, his intervening negligence could
relieve the motorist of liability to the motorcyclist for the
injuries he suffered. But, there was no basis in the record to
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find that the school bus driver was negligent. Indeed, we wrote
that “the action of the bus driver in bringing his vehicle to a
natural stop was not negligent.” Didier, at 753. It does not
follow that a non-negligent intervening act will break the chain
of causation between a prior negligent act and subsequent injuries
that proximately result from that act. The Restatement holds that
the intervening act must be “wrongful.” The non-negligent conduct
of an intervening “actor” has no effect on the respective
negligences of the plaintiff and the defendant or defendants, which
must instead be resolved on comparative negligence principles.
Shinaver v. Szymanski.
{¶ 52} Our rationale in Didier also suffers from another major
flaw. We held that the plaintiff motorcyclist was not entitled
to a comparative negligence instruction, rejecting the
“seductively appealing, but wholly pernicious, ‘but for’ analysis”
in Fleming and Baum, regarding the issue of probable cause. We
wrote: “The legal analysis must focus on the direct per se
negligence of the violator of the assured clear distance rule,
as distinct from a physical analysis made pursuant to the ‘but
for’ theory.” Id. at 754. In other words, the fact that the
plaintiff was negligent per se is conclusive of the issue of
proximate cause. However, that pronouncement we made in Didier
is the very view that the Supreme Court rejected in Smiddy when
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it wrote:
{¶ 53} “Although we hold that appellee’s decedent was negligent
per se, such holding does not mean that his negligence was the
sole proximate cause, or even a proximate cause, of the collision
that resulted in his death. Construing the evidence most favorably
toward appellee, we hold that reasonable minds could differ as
to the proximate cause(s) of the collision. Similarly, the issue
of comparative negligence is for the jury if it finds that Hesketh
[a motorist who had stopped and was struck by Smiddy’s vehicle]
was negligent and that the negligence of both Hesketh and Smiddy
were proximate causes of the accident.” Id., at 40 (internal
citations omitted.)
{¶ 54} We now believe that our holding in Didier was incorrect.
There was no intervening wrongful force between the prior
negligence of the defendant motorist whose vehicle crossed the
center line of the road and the plaintiff motorcyclist’s subsequent
assured clear distance violation that could or should have
prevented the injuries the plaintiff motorcyclist suffered when
he struck the school bus. The plaintiff’s assured clear distance
violation was negligence per se, but its effect on the liability
of the other motorist should have been determined on the basis
of comparative negligence principles, and was not a basis to find
the motorcyclist’s negligence per se was the sole proximate cause
22
of the accident. The practical effect of that finding was to hold
that, as a matter of law, any prior negligent act is too remote
to be a proximate cause of injuries when any other concurrent
negligence occurs. That outcome confounds the basic rule that
concurrent negligences may result in joint liabilities for both
tortfeasors when each is a proximate cause of injuries. Berdyck
v. Shinde. Therefore, our holding in Didier will be limited to
its facts.
{¶ 55} In the present case, the trial court carefully analyzed
the facts under the rule of Didier. We cannot fault the court’s
faithful adherence to our flawed precedent. But, being flawed,
Didier misled the trial court to grant summary judgment in favor
of Unlimited Freight, Inc.
{¶ 56} The trial court correctly found that Plaintiff Crosby’s
assured clear distance violation was negligence per se. However,
that finding is not conclusive of the issue of proximate cause.
Smiddy. As in Fleming, reasonable minds could find that Radenko,
the driver of the Unlimited Freight, Inc.’s tractor-trailer, would
anticipate that though a vehicle immediately behind the point where
he began to reenter the lane of travel would be able to stop to
avoid a collision, other vehicles in the same line of travel would
not be able to do so. As in Baum, reasonable minds could conclude
that the chain of events set in motion by the acts or omissions
23
of Radenko, the driver of Unlimited Freight’s vehicle, unfolded
in rapid succession in a continuous and unbroken fashion, with
a result that the causal connection between that act or omission
and Crosby’s injuries was not broken by Crosby’s negligence per
se, and that she and the driver of Unlimited Freight, Inc.’s
tractor-trailer were concurrent tortfeasors. In that
circumstance, the effect of their concurrent negligence on the
liability of Unlimited Freight, Inc. for Crosby’s injuries must
be resolved by a jury on comparative negligence principles. R.C.
2315.33; Smiddy v. The Wedding Party, Inc. Therefore, Defendants
Unlimited Freight, Inc., and Radenko were not entitled to summary
judgment.
{¶ 57} The assignment of error is sustained. The judgment of
the trial court will be reversed and the cause will be remanded
for further proceedings consistent with our decision.
FROELICH, J., concurs.
HALL, J., dissenting:
{¶ 58} I am of the opinion that granting summary judgment in
favor of defendant Radenko was correct. I agree with the majority
(and the trial court) that Plaintiff was negligent per se for her
inability to stop within the assured clear distance. But I disagree
with its analysis of the proximate cause of Plaintiff’s collision
24
with Radenko’s truck. I think that the sole proximate cause of
the collision was Plaintiff’s own negligence. For this reason,
I would affirm.
{¶ 59} The pertinent facts are not in dispute:
{¶ 60} “There are four vehicles relevant to the instant action,
which were traveling1 east in the following progression: Radenko’s
tractor-trailer (‘Radenko’s truck’), the automobile following
Radenko’s truck driven by witness June Owens (‘Owens’), a
semi-truck following June Owens (the Court will occasionally refer
to said semi-truck as ‘vehicle three’), and the automobile driven
by Plaintiff-Crosby (‘Plaintiff-Crosby’s car’). Owens, the
following truck, and Plaintiff-Crosby entered Interstate 70,
merged with traffic, and proceeded traveling east in the right
hand lane, each following the other in the aforementioned
progression. Owens was forced to come to an abrupt stop, because
Radenko’s truck was stopped in the right lane.2,3 Owens was able
1
Radenko’s truck was stopped at a point ahead of the three
following vehicles on eastbound Interstate 70.
2
The evidence is unclear as to the exact positioning of
Radenko’s truck in the right hand lane of Interstate 70.
However, it is undisputed that Radenko’s truck or a portion
of his truck was stopped in the traveling lanes of the interstate
such that June Owens was forced to stop.
3
The only evidence as to the distance traveled in between
entering the highway and encountering Radenko’s truck is the
deposition testimony of Plaintiff-Crosby, who stated the
25
to stop successfully behind Radenko’s truck without incident. Owens
stated that she immediately looked into her rearview mirror,
because she was concerned about the semi-truck behind her. The
semi-truck following Owens stopped successfully behind her. When
Owens turned her attention back to Radenko’s truck, it appeared
that Radenko ‘backed up a tiny bit’ in the time period in which
Owens was observing the truck behind her. It was at this point
that Plaintiff-Crosby came up behind vehicle three.
Plaintiff-Crosby stated in her deposition that when vehicle three
stopped in front of her, she lost control of the car,4 she swerved
to the left, into the left lane, into the gravel and grass of the
median, then tried to turn right, blacked out, and after regaining
consciousness realized she had hit Radenko’s truck.
Plaintiff-Crosby stated that the truck she collided with (Radenko’s
truck), was not the truck that stopped in front of her (vehicle
three/semi-truck following June Owens’ car).
{¶ 61} September 23, 2010 Decision, Order, and Entry, etc.,
p.3-4 (Internal citations omitted.).
distance to be approximately one mile. Plaintiff-Crosby Depo
at 19:10.
4
A: I could not maintain my vehicle after I saw the semi
slam on its brakes.
Q: [D]id you lost control of your vehicle . . .
26
{¶ 62} Plaintiff’s failure to stop safely behind vehicle three
(as vehicle three had done behind vehicle two, and as vehicle two
had done behind Radenko’s truck) was the result of her own
negligence. Plaintiff then negligently swerved into the left lane
and into the median, and then she overcorrected to the right and
swerved into the right lane, colliding with Radenko’s truck. The
collision cannot be attributed to anyone else. If Plaintiff had
not swerved and instead collided with vehicle three, the required
holding, under this Court’s decision in Didier v. Johns (1996),
114 Ohio App. 3d 746, and subsequent, identical holding in Daniels
v. Williamson (July 3, 1997), Montgomery App. No. 96-CA-146, would
be that Plaintiff’s negligence was the sole proximate cause of
the collision. The situation here is indistinguishable: the fact
that both Owens, vehicle two, and vehicle three stopped safely
behind Radenko’s truck is competent proof that it was not Radenko’s
negligence that caused Plaintiff to swerve. Owens and vehicle three
broke the causal chain.
{¶ 63} Nor were Owens or vehicle three the cause. As Judge Young
stated in Didier, “Are we to direct all rear-end collisions into
an endless search of discovery for some tint of negligence down
the road, no matter how far removed?” Didier, at 754. I would add,
A: Yes.
27
“Do we extend potential liability to the third or fourth vehicles,
or maybe the tenth, or perhaps even the twentieth?” In its analysis
the majority revisits Baum v. Augenstein (1983), 10 Ohio App.3d
106; Grange Mut. Cas. Co. v. Fleming (1982), 8 Ohio App.3d 164;
and Shinaver v. Szymanski (1984), 14 Ohio St.3d 51. Each of these
cases was considered in Didier and either rejected as unsound (Baum
and Fleming) or distinguished factually (Shinaver). The same should
be done here for the same reasons.
{¶ 64} The assured clear distance statute is perhaps one of
the strictest rules of the road, but it needs to be. It may be
captivating to throw all potentially responsible parties into the
mix and let a jury sort it out. But, consistent with this Court’s
precedent, I would hold that once a non-negligent driver breaks
the causal chain by bringing their vehicle to a lawful stop, and
that vehicle remains in the line of travel, the failure of a trailing
vehicle to comply with the assured-clear-distance statute is caused
solely by the trailing driver’s negligence.
{¶ 65} But another, perhaps more compelling, reason exists to
affirm the trial court’s grant of summary judgment. This reason
makes the intervening/superceding cause analysis unnecessary. As
the majority, and the trial court, point out, because Plaintiff
was negligent by failing to stop in the assured clear distance,
she cannot assert the “sudden emergency” doctrine to justify her
28
subsequent loss of control. Therefore, the only reason that
Plaintiff collided with Radenko’s truck was her own
negligence–first in swerving left to avoid hitting vehicle three,
then losing control into the median, and then in overcorrecting
to the right. The situation is no different than if Plaintiff had
been traveling all along in the left lane, outside the lane of
travel of the stopping vehicles, when, losing control, she swerved
left into the median and then overcorrected right into the right
lane and Radenko’s truck. In that situation, Plaintiff’s own
negligence undoubtedly would be considered the sole cause of the
collision. The same is true in this case since Plaintiff cannot
justify her failure to stop, and her subsequent actions, by claiming
a sudden emergency. The sole proximate cause of the plaintiff’s
movement to the right, and into Radenko’s truck, was her negligent
overcorrecting, precipitated by her negligent driving off the left
side of the roadway.
{¶ 66} Accordingly, I would affirm the trial court’s decision
to grant summary judgment in favor of defendant Radenko.
. . . . . . . . .
Copies mailed to:
Timothy S. Chappars, Esq.
Patrick McCaffrey, Esq.
Audrey E. Varwig, Esq.
Hon. Dennis J. Langer