Rapp v. Sullivan

[Cite as Rapp v. Sullivan, 2013-Ohio-5378.]

STATE OF OHIO, MAHONING COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

BRIANNA RAPP, )
) CASE NO. 12 MA 227
PLAINTIFF-APPELLANT, )
)
VS. ) OPINION
)
WILLIAM SULLIVAN, )
)
DEFENDANT-APPELLEE. )

CHARACTER OF PROCEEDINGS: Civil Appeal from Common Pleas Court,
Case No. 12CV1857.

JUDGMENT: Affirmed.

APPEARANCES:
For Plaintiff-Appellant: Attorney Mark Verkhlin
839 Southwestern Run
Youngstown, Ohio 44514

For Defendant-Appellee: Attorney William Pfau, III
P.O. Box 9070
Youngstown, Ohio 44513

JUDGES:
Hon. Joseph J. Vukovich
Hon. Gene Donofrio
Hon. Cheryl L. Waite

Dated: December 4, 2013
[Cite as Rapp v. Sullivan, 2013-Ohio-5378.]
VUKOVICH, J.

{¶1} Plaintiff-appellant Brianna Rapp appeals the decision of the Mahoning
County Common Pleas Court granting summary judgment in favor of defendant-
appellee William Sullivan. Appellant urges that the testimony contained in her
deposition created a genuine issue of material fact as to whether appellee is liable or
partially liable for the collision between the parties’ vehicles during a shooting. We
conclude that the contents of the deposition fail to raise a genuine issue of material
fact as to whether appellee was proceeding in a lawful manner or caused or
contributed to the accident. Consequently, the judgment of the trial court is hereby
affirmed.
STATEMENT OF THE CASE
{¶2} Appellant Brianna Rapp filed suit against appellee William Sullivan,
alleging his negligence caused a vehicular collision on September 14, 2008. She
also sued Cordelia Traylor, alleging that she negligently entrusted the vehicle to her
son. Sullivan filed a motion for summary judgment, relying on Rapp’s testimony at
deposition. In pertinent part, he argued that her testimony that she ducked her head
to avoid gunfire while at a stop sign and then accelerated though the intersection can
only be construed to conclude that she caused the accident by blindly accelerating
into his path. He urged that there was no evidence that any conduct by him was a
causative factor, noting that she was unable to estimate his speed.
{¶3} Rapp responded that Sullivan’s argument dealt with comparative or
contributory negligence, not failure of liability. She urged that the mere fact that she
had a stop sign should not preclude her claim as she testified that she did not see
Sullivan’s vehicle before she entered the intersection, pointing out that R.C.
4511.43(A) provides that after stopping, the driver shall yield the right-of-way to a
vehicle approaching so closely as to constitute an immediate hazard during the time
the driver is moving across the roadway. She then concludes that it can be inferred
from her testimony that Sullivan was driving at a very high rate of speed because she
testified that she ascertained both directions were clear before the gunfire started
and because she was in the middle of Sullivan’s lane when he hit her.
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{¶4} Rapp’s deposition contained only the defense’s cross-examination of
Rapp as it does not appear that her counsel conducted a direct examination. Rapp
testified that in the early evening prior to sunset, she was driving west on East Boston
Avenue. She approached the stop sign at the intersection with Southern Boulevard,
intending to proceed straight on Boston. The traffic on Southern Boulevard did not
have a stop sign.
{¶5} Rapp stopped at her stop sign for approximately ten to fifteen seconds.
(Tr. 17). She looked to her right and then to her left and noticed no cars approaching
in either direction. (Tr. 24-25). At that point, she heard four to five shots. When the
next shot shattered her passenger window, grazed her temple, and shattered her
driver’s side window, she ducked her head next to the steering wheel so that it was in
front of the radio and accelerated faster than normal into the intersection while more
shots continued to be fired. (Tr. 18-19, 21-22, 29). Rapp believed that at least two
other shots hit her vehicle. (Tr. 39-40).
{¶6} Before her vehicle could clear the intersection, Sullivan’s vehicle,
approaching from the right/north, collided into the passenger side of her vehicle,
pushing it up to a house on the corner. (Tr. 25-27, 36). Rapp stated that she could
not estimate the speed of Sullivan’s vehicle because she never saw it. (Tr. 35).
Shots continued to be fired even after the crash. (Tr. 27-28). Sullivan alighted from
his vehicle holding a handgun and ran away from the direction of the shooters. (Tr.
28, 30-31). Rapp concluded there was more than one person shooting based upon
the different shots. (Tr. 31). She could not say whether Sullivan fired any shots. (Tr.
28).
{¶7} Rapp was not cited for the accident at the scene, but an officer told her
the city would thereafter decide whether to charge her. (Tr. 33). She was taken to
the hospital for treatment of the bullet wound along the temple, a sprained finger, and
abdominal pain. At the end of the deposition, counsel asked if there would have
been an accident if she had not been shot at, ducked down, put her foot on the gas,
and pulled into the intersection, to which she responded in the negative. (Tr. 50).
{¶8} On September 13, 2012, the magistrate granted summary judgment in
favor of Sullivan. The magistrate also issued findings of fact and conclusions of law
 -3-

finding in pertinent part that: at or about the same time as Rapp stopped her vehicle,
Sullivan was travelling southbound on Southern Boulevard; there was no evidence
that Sullivan was negligent in the operation of his vehicle so as to cause the collision;
and the accident was solely caused by Rapp’s failure to yield the right-of-way at the
intersection where Sullivan had no stop sign. Rapp filed objections to the
magistrate’s decision focusing on these three findings and the ultimate conclusion
that reasonable minds can only come to a conclusion adverse to her position. On
November 28, 2012, the trial court adopted the magistrate’s decision and entered
summary judgment in favor of Sullivan, finding no just cause for delay. Rapp filed a
timely notice of appeal.
SUMMARY JUDGMENT EVIDENCE
{¶9} Besides relying upon her deposition already filed in the action by
Sullivan, Rapp attached to her response papers from a police file that had been
received by fax machine. As these were unauthenticated, Sullivan filed a motion to
strike them.
{¶10} In ruling on a motion for summary judgment, unless the other party has
failed to object, the court can only consider evidence properly submitted under Civ.R.
56, which includes pleadings, depositions, answers to interrogatories, written
admissions, affidavits, transcripts of evidence, and written stipulations of fact. Civ.R.
56(C); State ex rel. Gilmour Realty, Inc. v. Mayfield Heights, 122 Ohio St.3d 260, 910
N.E.2d 455, 2009-Ohio-2871, ¶ 17 (court may consider evidence that does not
comply with Civ.R. 56(C), such as unsworn and unauthenticated documents, if there
is no objection). Sworn or certified copies of papers referred to in the affidavit shall
be attached thereto or served therewith. Civ.R. 56(E).
{¶11} This requirement is satisfied by attaching the papers to the affidavit and
stating that they are true copies and reproductions. State ex rel. Corrigan v.
Seminatore, 66 Ohio St.2d 459, 423 N.E.2d 105 (1981). Other documents attached
to summary judgment motions that are not incorporated by a properly framed affidavit
do not constitute proper summary judgment evidence under Civ.R. 56(C) and cannot
be utilized by the court if there has been an objection entered as here. See Citibank
 -4-

v. McGee, 7th Dist. No. 11MA158, 2012-Ohio-5364, ¶ 14, citing Corrigan, 66 Ohio
St.2d at 467.
{¶12} Thus, we shall not consider the unauthenticated attachments to her
response, which do not add to her cause in any event. Notably, one page was an
exhibit already presented to Rapp by Sullivan’s attorney during the deposition and
was attached to that deposition which Sullivan filed in support of his motion for
summary judgment. Thus, appellee’s motion to strike would not apply to the portions
of that page that needed to be viewed to understand the portion of Rapp’s testimony
where she was asked by the defense to confirm the location of the collision and to
place x’s where she believed the shooters were located. (Tr. 36-37). Thus, Rapp’s
deposition testimony on cross-examination (with an attached exhibit) was the only
summary judgment evidence presented for evaluation.
SUMMARY JUDGMENT
{¶13} Summary judgment can be granted where there remain no genuine
issues of material fact for trial and where, after construing the evidence most strongly
in favor of the nonmovant, reasonable minds can only conclude that the moving party
is entitled to judgment as a matter of law. Byrd v. Smith, 110 Ohio St.3d 24, 2006-
Ohio-3455, 850 N.E.2d 47, ¶ 10, citing Civ.R. 56(C). The burden of showing that
there is no genuine issue of material fact initially falls upon the party who files for
summary judgment. Id., citing Dresher v. Burt, 75 Ohio St.3d 280, 294, 662 N.E.2d
264 (1996).
{¶14} Thereafter, the nonmovant may not rest upon the mere allegations or
denials of the party's pleadings but must respond by setting forth specific facts
showing there is a genuine issue for trial. Id., citing Civ.R. 56(E). “If the party does
not so respond, summary judgment, if appropriate, shall be entered against the
party.” Civ.R. 56(E). Although courts are cautioned to construe the evidence in favor
of the nonmoving party, summary judgment is not to be discouraged where a
nonmovant fails to respond with evidence supporting the essentials of his claim.
Leibreich v. A.J. Refrigeration, Inc., 67 Ohio St.3d 266, 269, 617 N.E.2d 1068 (1993).
{¶15} Summary judgment is appropriate when there is no genuine issue as to
any material fact, and the existence of a material fact depends on the substantive law
 -5-

of the claim litigated. DiBlasio v. Sinclair, 7th Dist. No. 08MA23, 2012-Ohio-5848, ¶
32, citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248, 106 S.Ct. 2505, 91
L.Ed.2d 202 (1986) (and noting the inquiry is “whether the evidence presents a
sufficient disagreement to require submission to a jury or whether it is so one-sided
that one party must prevail as a matter of law.”).
RIGHT OF WAY
{¶16} To establish a claim of negligence, the plaintiff must show the existence
of a duty, breach of that duty, and an injury resulting proximately therefrom. Menifee
v. Ohio Welding Products, Inc., 15 Ohio St.3d 75, 77, 472 N.E.2d 707 (1984). The
failure of any of these elements will defeat the action. Duty refers to the relationship
between the plaintiff and the defendant from which arises an obligation on the part of
the defendant to exercise due care toward the plaintiff. Commerce & Industry Ins.
Co. v. Toledo, 45 Ohio St.3d 96, 98, 543 N.E.2d 1188 (1989). Proximate cause
requires the event to be a natural or continuing sequence, without which the injury
would not have occurred. Murphy v. Carrollton Mfg. Co., 61 Ohio St.3d 585, 575
N.E.2d 828 (1991).
{¶17} In order to consider the issue of the contributory or comparative
negligence of a driver with the right-of-way, there must be some evidence that the
driver was driving unlawfully. See Lydic v. Earnest, 7th Dist. No. 02CA125, 2004-
Ohio-3194, ¶ 30, citing Deming v. Osinski, 24 Ohio St.2d 179, 265 N.E.2d 554 (1970)
(reversing trial court’s decision that motorcyclist with the right-of-way was required to
“look, look effectively and continue to look and otherwise remain alert” in a case
where the motorcyclist looked at his friend at the gas station just prior to a car pulling
in front of him). This is because right-of-way is statutorily defined as the right of a
vehicle “to proceed uninterruptedly in a lawful manner” in the direction in which it is
moving in preference to another vehicle approaching from a different direction into its
path. R.C. 4511.01(UU)(1).
{¶18} A driver approaching a stop sign shall stop before entering the
intersection. R.C. 4511.43 (A). After having stopped, the driver shall yield the right-
of-way to any vehicle in the intersection or approaching on another roadway so
 -6-

closely as to constitute an immediate hazard during the time the driver is moving
across or within the intersection or junction of roadways. Id.
{¶19} A driver traveling within the statutorily defined right of way has
preferential status. Lydic, 7th Dist. No. 02CA1225 at ¶ 28, citing Morris v.
Bloomgren, 127 Ohio St. 147, 152, 187 N.E.2d 2 (1933). Thus, a driver with the right
of way has no duty to look for dangers that might be approaching. Deming, 24 Ohio
St.2d at 181. Specifically, that driver need not anticipate that a driver with a stop sign
would intrude upon his right-of-way. Lydic, 7th Dist. No. 02CA125 at ¶ 35. "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." Timmons v. Russomano, 14 Ohio St. 2d 124, 236 N.E.2d 665 (1968).
{¶20} "Whether 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.” Lydic, 7th Dist. No. 02CA125 at ¶ 32. “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." Id. The only exception would be if the driver with the right of way has
realized that there is a clearly dangerous condition in the right-of-way and then fails
to use ordinary care thereafter. Id. at ¶ 34.
{¶21} Finally, it has been stated that the statutes on the right-of-way would be
emasculated if the plaintiff could put the defendant with the right of way on an equal
plane with her when their paths converge. See Morris v. Bloomgren, 127 Ohio St.
147, 152, 187 N.E. 2 (1933) (dealing with right of way for vehicles approaching
intersection from the right).
ASSIGNMENT OF ERROR
{¶22} Appellant’s sole assignment of error contends:
{¶23} “The Trial Court erred when it overruled the Objections to the
Magistrate’s Decision and adopting the decision of the magistrate when questions of
 -7-

material fact existed as to whether Appellee was, in fact, the negligent party, as
Appellee failed to show that summary judgment was proper pursuant to Civ.R. 56.”
{¶24} In support of this argument, Rapp urges that questions of material fact
are present as to whether the accident was caused in whole or in part by Sullivan’s
negligence, insisting that, at best, Sullivan’s arguments set forth a comparative
negligence argument for trial. Rapp notes that merely because she had a stop sign
and Sullivan did not does not require summary judgment against her. Rapp asserts
that she had a clear path when she entered the intersection. Since she did not see
any vehicles when she originally looked to the right, she presumes that Sullivan must
have been travelling at a high rate of speed. She believes that the fact that she was
already in the middle of Sullivan’s lane when this collision took place suggests his
negligence.
{¶25} In her argument, but not in her testimony, Rapp presumes that Sullivan
was driving at an excessive speed because she did not see him when she originally
looked both ways at the intersection. Notably, she presented no evidence but her
deposition testimony and that was on cross-examination by defense counsel. Rapp
did not testify that Sullivan was driving at an excessive speed so as to make the
driving unlawful. She did not even testify that he was exceeding the speed limit,
which can be different from driving at an excessive speed so as to make the driving
unlawful. In fact, she presented no summary judgment evidence as to what the
speed limit was for Sullivan.
{¶26} Rapp’s testimony suggests that she responded to an emergency
situation but does not specify Sullivan’s duty arose as it does not provide specific
summary judgment evidence that his vehicle was not proceeding in a lawful manner.
Nor was there evidence that Sullivan became aware of the impending collision and
failed to exercise reasonable care upon noticing her acceleration into the
intersection. Likewise, there is nothing showing that his act or failure to act
proximately caused her injury. Rather, considering the dearth of summary judgment
evidence presented here, reasonable minds could only find that the shooters and
then her response thereto caused the collision.
 -8-

{¶27} Rapp looked right (the direction appellee came from) and then left. She
said that she saw no cars. At that point, she heard four to five gunshots. Then, a
bullet shattered her passenger window, grazed her temple, and shattered her driver’s
window. She ducked her head down by the radio and steering wheel and
accelerated faster than normal through the intersection without looking right again.
Rapp testified that she was stopped for 10-15 seconds. The fact that she testified
that she originally saw no cars toward the right cannot by itself constitute summary
judgment evidence that appellee was travelling at an excessive rate of speed as
other events occurred in the meantime. And, we cannot discern how the fact that she
made it halfway through appellee’s lane of travel assists her argument, especially
since she stated that she accelerated faster than usual into the intersection.
{¶28} In sum, Sullivan had a right to use the southbound lane and had no
stop sign requiring him to yield. There is no evidence that his vehicle was not
proceeding in a lawful manner Thus, Sullivan, as the driver with the right-of-way, had
the right to expect that appellant would respect his right to use that lane. He had
preferential status. He had no duty to keep on the look-out and anticipate that Rapp
might accelerate into his lane from a stop sign with her head down. Finally, there is
nothing to suggest that Sullivan noticed Rapp’s vehicle in his right-of-way and then
acted negligently.
{¶29} For the foregoing reasons, the judgment of the trial court is hereby
affirmed.

Donofrio, J., concurs.
Waite, J., concurs.