[Cite as Keirns-Mollenkopf v. Schroeder, 2012-Ohio-3657.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
THE ESTATE OF: JUDGES:
Hon. William B. Hoffman, P.J.
HEATHER KEIRNS-MOLLENKOPF, Hon. Sheila G. Farmer, J.
ET AL. Hon. Julie A. Edwards, J.
Plaintiffs-Appellants
-vs- Case No. 12CA4
RODNEY J. SCHROEDER, ET AL.
Defendants-Appellees OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case. Nos. 09CV1129 and
10CV1559
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT: August 10, 2012
APPEARANCES:
For Plaintiffs-Appellants For Defendants-Appellees
G. SCOTT MCBRIDE KENNETH R. BEDDOW
120 North Lane Street 24 West Third Street
Drawer 309 Suite 204
Bucyrus, OH 44820 Mansfield, OH 44902
Richland County, Case No. 12CA4 2
Farmer, J.
{¶1} On November 28, 2008, Rodney Schroeder was driving northbound on
Sturges Avenue in Mansfield, Ohio. His passenger was Heather Keirns-Mollenkopf. In
front of the Schroeder vehicle was a vehicle being operated by appellee, Jack Spreng.
As Mr. Schroeder attempted to pass appellee's vehicle on the left, it collided with
appellee's vehicle. The Schroeder vehicle lost control and hit a utility pole. As a result,
Ms. Keirns-Mollenkopf sustained serious injuries and died.
{¶2} Prior to the accident, both Mr. Schroeder and appellee were served
alcohol at a bar called "The Den" in Mansfield, Ohio.
{¶3} On July 30, 2009, appellant, Tyson Mollenkopf, husband of the deceased
and executor for the estate of Ms. Keirns-Mollenkopf, filed a complaint for negligence
and wrongful death against Mr. Schroeder (Case No. 09CV1129). An amended
complaint was filed on March 17, 2010 to include appellee.
{¶4} On November 23, 2010, appellant, together with his in-laws, Michael and
Melody Keirns, filed a complaint against Peebles Enterprises, Inc. dba Peebles Den,
Joseph Feeney, James Feeney, and David Brenneis (the three owners of The Den),
Ohio Mutual Insurance Group, and MetLife Auto & Home Insurance Agency, claiming
negligence and wrongful death and seeking damages and a declaratory judgment
(Case No. 10CV1559). All of these defendants were subsequently dismissed.
{¶5} On May 3, 2011, appellee filed a motion for summary judgment in Case
No. 09CV1129.
{¶6} On May 26, 2011, the trial court consolidated the two cases.
Richland County, Case No. 12CA4 3
{¶7} By judgment entry filed July 8, 2011, the trial court granted appellee's
motion for summary judgment.
{¶8} On September 28, 2011, appellant dismissed Mr. Schroeder as the claims
against him had been settled.
{¶9} By judgment entry filed December 13, 2011, the trial court indicated that
all claims against all parties have been fully disposed of in the matter.
{¶10} Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
I
{¶11} "THE TRIAL COURT COMMITTED REVERSIBLE ERROR, ABUSED ITS
DISCRETION AND ITS DECISION WAS AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE WHICH WAS PREJUDICIAL AGAINST THE PLAINTIFF/APPELLANT
WHEN THE TRIAL COURT GRANTED THE DEFENDANT/APPELLEE'S (JACK
SPRENG'S) MOTION FOR SUMMARY JUDGMENT FINDING THAT JACK SPRENG
WAS NOT NEGLIGENT AND HE DID NOT BREACH THE DUTY OF CARE THAT
PROXIMATELY CAUSED HEATHER KEIRNS MOLLENKOPH'S FATAL INJURIES."
{¶12} At the outset, we will discuss appellee's argument that this is not a timely
appeal because the trial court granted summary judgment on July 8, 2011 and the
appeal was perfected on January 9, 2012. It is appellee's position that the consolidation
of the two cases did not affect the appealability of the July 8, 2011 judgment entry, as
the decision terminated the causes of action against him in the first complaint (Case No.
09CV1129), and the remaining issues were separate and distinct from those causes of
action.
Richland County, Case No. 12CA4 4
{¶13} Pursuant to Loc.R. 7.01 of the Court of Common Pleas of Richland
County, General Division, consolidation merges two cases into one:
{¶14} "A motion for consolidation shall be decided by the judge assigned to the
case having the oldest case number, and if consolidation is granted, the cases shall be
consolidated into the case with the oldest case number under the judge assigned to that
case."
{¶15} We conclude the appeal was timely as the complaint against appellee,
Case No. 09CV1129, was the controlling case number and was not closed with the
granting of the summary judgment decision. As evidenced by the trial court's judgment
entry filed on December 13, 2011, all claims against all parties were not fully disposed
of until said date.
I
{¶16} Appellant claims the trial court erred in granting summary judgment to
appellee as genuine issues of material fact were presented to overcome appellee's
position that he was not negligent. We agree.
{¶17} Summary Judgment motions are to be resolved in light of the dictates of
Civ.R. 56. Said rule was reaffirmed by the Supreme Court of Ohio in State ex rel.
Zimmerman v. Tompkins, 75 Ohio St.3d 447, 448, 1996-Ohio-211:
{¶18} "Civ.R. 56(C) provides that before summary judgment may be granted, it
must be determined that (1) no genuine issue as to any material fact remains to be
litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) it
appears from the evidence that reasonable minds can come to but one conclusion, and
viewing such evidence most strongly in favor of the nonmoving party, that conclusion is
Richland County, Case No. 12CA4 5
adverse to the party against whom the motion for summary judgment is made. State
ex. rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511, 628 N.E.2d 1377, 1379,
citing Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O3d 466, 472,
364 N.E.2d 267, 274."
{¶19} As an appellate court reviewing summary judgment motions, we must
stand in the shoes of the trial court and review summary judgments on the same
standard and evidence as the trial court. Smiddy v. The Wedding Party, Inc. (1987), 30
Ohio St.3d 35.
{¶20} In its judgment entry filed July 8, 2011, the trial court concluded there were
no genuine issues of material fact as to whether appellee had a duty to appellant:
{¶21} "Mr. Spreng had the same duty as other drivers to drive carefully for the
benefit of all users on the road. To prove an action for negligence against him,
however, plaintiff must also show that Mr. Spreng breached that duty of care and that
he directly and proximately caused Ms.Keirns-Mollenkopf's fatal injuries. For the
reasons stated above, the sworn evidence filed with the court is insufficient to create a
dispute of material fact on those issues. It is therefore ordered that summary judgment
is entered for defendant Jack Spreng on plaintiff's complaint."
{¶22} In his motion for summary judgment filed May 3, 2011, appellee argued he
was in his own lane of travel and he did not enter into the path of the speeding
Schroeder vehicle that was attempting to pass him on the left. In support of this
argument, appellee generally cited to his own deposition testimony. In reviewing
appellee's deposition, we find the following specific testimony to support his assertions:
{¶23} "Q. Tell me what happened next, you got in your car or truck?
Richland County, Case No. 12CA4 6
{¶24} "A. Got in my truck and went to the stoplight and it was a red light, and left
the red light and going down Sturges Avenue and I got right - - by the time I got down to
where I live, there was a passing gear that I heard, and I looked through my rearview
mirror and I seen lights flying, I don't know how many, and I now know they were
speeding. And I was getting up on my street to make a left-hand turn, and the car hit
my truck, ripped the mirror off my truck. I jammed the brakes on and threw the truck in
park, and by that time, his truck grabbed my bumper and pulled my truck, and I am
standing on the brake on my truck, and then it broke loose. When it broke loose from
my bumper of my truck, it shot over to the tree where that chair is sitting right there, and
the truck went flying like this to the right, and I mean, it was flying, and the next thing
that I know, he hit the brakes and started like sliding on the road, and next thing that I
knew it was wrapped around the pole.
{¶25} "Q. When you first heard this gear***and you looked in your rearview
mirror, you saw lights?
{¶26} "A. Yes.
{¶27} "Q. Bright lights or describe it for us?
{¶28} "A. Just headlights, it sounded like when you hear a police officer going in
pursuit, that is what the passing gear sounded like. I did not see red lights, and I looked
in my mirror and I was coming up on my street, and turned my signal on, and it took the
mirror off my truck and it was that fast, and I remember like it happened today.
{¶29} "***
{¶30} "Q. Go ahead, take me from this point forward and tell me what happened
next as you were driving?***
Richland County, Case No. 12CA4 7
{¶31} "A. Twenty miles an hour, I drive it every day. When you get down to your
street, I was down to a crawl, when I got here and seen these lights, I turned around
and looked to see if anything was coming in front of me and by the time I had my eyes
in the rearview mirror, he snipped the mirror on the truck." Spreng depo. at 22-23 and
27-28, respectively.
{¶32} Appellee opined that when he first noticed the speeding Schroeder
vehicle, it was twenty feet away. Id. at 26. Appellee stated at the time of the initial
impact, his vehicle was in its own lane of travel and was not across the center line. Id.
at 29.
{¶33} Appellee argues because he was lawfully in his own lane of travel at the
time of the impact, he was not negligent as he owed no extra duty to the speeding
Schroeder vehicle passing him on the left of a double center line. In support, appellee
cites the case of Swoboda v. Brown (1935), 129 Ohio St. 512, paragraph eight of the
syllabus, wherein the Supreme Court of Ohio held, "[o]ne 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."
{¶34} In response, appellant argues appellee had a duty to maintain his vehicle
in his own lane of travel and not turn left until he could ascertain that such movement
could be made with safety:
{¶35} "(A) Whenever any roadway has been divided into two or more clearly
marked lanes for traffic, or wherever within municipal corporations traffic is lawfully
Richland County, Case No. 12CA4 8
moving in two or more substantially continuous lines in the same direction, the following
rules apply:
{¶36} "(1) A vehicle or trackless trolley shall be driven, as nearly as is
practicable, entirely within a single lane or line of traffic and shall not be moved from
such lane or line until the driver has first ascertained that such movement can be made
with safety." R.C. 4511.33(A)(1).
{¶37} In support of his arguments, appellant presented the trial testimony of the
investigating officer, Ohio State Highway Patrol Trooper Fred Cook. Trooper Cook
opined through his investigation of the airbag module, the measurements taken at the
crash site, the tire marks, and the location of the debris field, the point of impact was not
in appellee's lane, but was in the left lane for oncoming traffic; therefore, appellee's
vehicle was over the double center line. T. at 927-928, 952, 965-966.
{¶38} Appellant also presented the affidavit of an accident reconstructionist,
William Jackman, filed May 20, 2011. Mr. Jackman opined the following at ¶5:
{¶39} "1. The Spreng F-150 started across the painted centerline about 50 feet
south of the south edge of Walter Avenue.
{¶40} "2. The left corner of the F-150 (Defendant Spreng) was 3 to 4 feet left of
center, into the southbound travel lane of Sturges Avenue when it impacted with the
Schroeder Chevrolet Silverado.
{¶41} "3. With the engagement of the front bumper of the F-150 with the rear
bumper of the Silverado, the dynamics changed. The F-150 was suddenly accelerated
forward while the Silverado was instantly slowed. The Silverado started yawing to the
right as it pivoted about the point of engagement of the momentarily locked bumpers.
Richland County, Case No. 12CA4 9
{¶42} "4. The Silverado continued its yaw to the right as the bumpers
disengaged. Mr. Schroeder steered to the left, in an attempt to regain control of the
Silverado. His efforts were in vain and the pickup side-slid into a utility pole.
{¶43} "5. The initial impact between the two pickups, causing their bumpers to
engage and the subsequent impact with the utility pole by the Silverado, would not have
occurred but for the actions of Mr. Spreng. He started to make his intended left turn into
Walter when his vehicle was too far south of the intersection to properly execute the
turn.
{¶44} "6. Given Mr. Spreng's stated belief that the overtaking vehicle was a
police car, his proper course of action would have been to pull over to his right and stop
along the east curb-line of Sturges Avenue, yielding the right-of-way. Had he done that,
the Schroeder vehicle would have been able to pass on his left with some eight (8) feet,
plus or minus, separating the two pickup trucks."
{¶45} It is appellant's position that these observations and opinions overcome
appellee's assertion that he was proceeding lawfully in his own lane of travel. Appellant
argues appellee's action of a premature left hand turn was enough to establish that it
was one of the proximate causes of the accident.
{¶46} The primary consideration is whether appellee breached a duty to the
Schroeder vehicle by executing the left hand turn. Despite Mr. Jackman's assertion that
appellee could not have properly executed the turn as he was "too far south of the
intersection," this is not determinative of an affirmative duty. The true issue of fact in
determining whether a duty was breached is whether appellee had notice that he was
being passed and disregarding that notice, proceeded left of center. In construing the
Richland County, Case No. 12CA4 10
evidence in favor of appellant, we find sufficient issues of material fact have been raised
on this narrow issue.
{¶47} The sole assignment of error is granted.
{¶48} The judgment of the Court of Common Pleas of Richland County, Ohio is
hereby reversed, and the matter is remanded to said court for further proceedings.
By Farmer, J.
Hoffman, P.J. and
Edwards, J. concur.
_s/ Sheila G. Farmer______________
_s / William B. Hoffman___________
_s/ Julie A. Edwards_____________
JUDGES
SGF/sg 723
[Cite as Keirns-Mollenkopf v. Schroeder, 2012-Ohio-3657.]
IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
THE ESTATE OF: :
:
HEATHER KEIRNS-MOLLENKOPF, :
ET AL. :
:
Plaintiffs-Appellants :
:
-vs- : JUDGMENT ENTRY
:
RODNEY J. SCHROEDER, ET AL. :
:
Defendants-Appellees : CASE NO. 12CA4
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Richland County, Ohio is reversed, and the
matter is remanded to said court for further proceedings consistent with this opinion.
Costs to appellee Jack Spreng.
_s/ Sheila G. Farmer______________
_s / William B. Hoffman___________
_s/ Julie A. Edwards_____________
JUDGES