[Cite as Penrod v. Mineral Trucking, 2015-Ohio-3493.]
COURT OF APPEALS
TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
SHANNON PENROD JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellant Hon. Sheila G. Farmer, J.
Hon. John W. Wise, J.
-vs-
Case No. 2014 AP 10 0044
MINERAL TRUCKING, ET AL.
Defendants-Appellees OPINION
CHARACTER OF PROCEEDING: Appeal from the Tuscarawas County Court
of Common Pleas, Case No. 2013 CT 12
0898
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: August 25, 2015
APPEARANCES:
For Defendants-Appellees For Plaintiff-Appellant
MARK F. FISCHER STEVEN J. BRIAN
JAMES A. DESMITH ABIGAIL I. MARCHISIO
Fischer, Evans & Robbins, Ltd. 81 Maplecrest Street SW
3521 Whipple Avenue NW North Canton, Ohio 44720
Canton, Ohio 44718
Tuscarawas County, Case No. 2014 AP 10 0044 2
Hoffman, P.J.
{¶1} Plaintiff-appellant Shannon Penrod appeals the September 23, 2014
Judgment Entry entered by the Tuscarawas County Court of Common Pleas granting
summary judgment in favor of Defendants-appellees Mineral Trucking, Inc. and Steven
S. Ramsier.
STATEMENT OF THE FACTS AND THE CASE
{¶2} On February 10, 2010, Appellant Shannon Penrod was operating her
vehicle on County Highway 21, in York Township, Tuscarawas County, Ohio. County
Highway 21 is a two-lane roadway with one lane northbound and one lane southbound.
At the time of the incident, a snow storm caused the road conditions to be icy. The wind
was blowing and it was snowing.
{¶3} Appellant alleges a deer ran into the roadway hitting her car, causing a flat
tire. Appellant then pulled her car to the side of the road. The incident occurred at
approximately 6:30 a.m., and was dark outside.
{¶4} Appellant recalls exiting her vehicle upon seeing headlights from an
oncoming vehicle. According to Appellant, she was holding her cell phone and waiving
her arms for the oncoming vehicle to stop and help her. Appellant avers she remained
near her car on the side of the road. Appellant recalls nothing further about the
accident, other than waking up in the hospital three days later.
{¶5} On the date of the accident, Appellee Steven Ramsier was hauling a full
load of coal on County Road 21. Ramsier was traveling between 30 and 35 miles per
hour. The speed limit on the roadway was 55 miles per hour. Ramsier crested a hill
and noticed headlights facing him on the opposite side of the road. Ramsier testified he
Tuscarawas County, Case No. 2014 AP 10 0044 3
then noticed Appellant in the middle of the roadway, coming towards his truck. Ramsier
did not see Appellant until she appeared from a grove of trees waiving her arms about
ten to fifteen yards in front of his truck.
{¶6} Ramsier applied his brakes and noticed the trailer began to swing around
the cab due to the slippery conditions. In order to straighten the trailer, Ramsier let off
the brakes. Ramsier avers Appellant did not move from the middle of the road and she
was too close for him to stop, so he tried to pass around her. Ramsier observed in his
side mirror the trailer pass Appellant at which time Appellant spun around and fell to the
ground.
{¶7} On December 16, 2013, Appellant filed a complaint for personal injuries
against Appellees.1 Appellees filed an answer to the complaint. On January 15, 2014,
State Farm Mutual Automobile Insurance Company filed a Motion to Intervene. The trial
court granted the motion. With leave of Court, State Farm filed an Intervening
Complaint against Appellees alleging an interest in the action as the Insurrer of
Appellant. Appellant alleges she was struck and injured as a direct and proximate result
of Ramsier's negligence in that he was traveling at an unsafe speed for the conditions,
failed to keep a proper lookout, failed to maintain an assured clear distance, and failed
to yield the right of way to a pedestrian. Appellant further claims Ramsier was operating
within the course and scope of his employment for Appellee Mineral Trucking, Inc.
{¶8} On August 20, 2014, Appellees Mineral Trucking, Inc. and Steven S.
Ramsier filed a motion for summary judgment.
1
Appellant voluntarily dismissed a previously filed complaint on December 20, 2012.
State Farm Automobile Insurance Company voluntarily dismissed a previously filed
complaint on December 19, 2012. The trial court entered a Judgment Entry confirming
the dismissal without prejudice of all claims on December 26, 2012.
Tuscarawas County, Case No. 2014 AP 10 0044 4
{¶9} On September 5, 2014, Appellant filed a memorandum in opposition to the
motion for summary judgment. On September 10, 2014, State Farm filed a brief in
opposition to the motion for summary judgment.
{¶10} On September 17, 2014, Appellees filed a reply brief in support of their
motion for summary judgment.
{¶11} Via Judgment Entry of September 23, 2014, the trial court granted
summary judgment in favor of Appellees Steven Ramsier and Mineral Trucking, Inc. and
dismissed the complaints filed by Appellant and State Farm.
{¶12} Appellant Shannon Penrod appeals, assigning as error:
{¶13} "I. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT
IN FAVOR OF APPELLEE. (JUDGMENT ENTRY ATTACHED HERETO AS EXHIBIT
A, PURSUANT TO LOCAL RULE 9(A)(1)(A)). SUMMARY JUDGMENT IS
APPROPRIATE ONLY WHERE NO GENUINE ISSUES OF MATERIAL FACT EXIST
SUCH THAT REASONABLE MINDS COULD COME TO BUT ONE CONCLUSION. IN
THE INSTANT ACTION, GENUINE ISSUES OF MATERIAL FACT EXIST THAT
WARRANT TRIAL BY JURY AS REASONABLE MINDS MAY REACH ALTERNATE
CONCLUSIONS."
{¶14} Summary judgment proceedings present the appellate court with the
unique opportunity of reviewing the evidence in the same manner as the trial court.
Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St.3d 35, 36, 506 N.E.2d 212. As
such, this Court reviews an award of summary judgment de novo. Grafton v. Ohio
Edison Co. (1996), 77 Ohio St.3d 102, 105, 671 N.E.2d 241.
Tuscarawas County, Case No. 2014 AP 10 0044 5
{¶15} Civ.R. 56 provides summary judgment may be granted only after the trial
court determines: 1) no genuine issues as to any material fact remain 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 party against whom the motion for summary
judgment is made, that conclusion is adverse to that party. Temple v. Wean United, Inc.
(1977), 50 Ohio St.2d 317, 364 N.E.2d 267.
{¶16} It is well established the party seeking summary judgment bears the
burden of demonstrating that no issues of material fact exist for trial. Celotex Corp. v.
Catrett (1986), 477 U.S. 317, 330, 106 S.Ct. 2548, 91 L.Ed.2d 265. The standard for
granting summary judgment is delineated in Dresher v. Burt (1996), 75 Ohio St.3d 280
at 293, 662 N.E.2d 264: “ * * * 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. The moving party cannot discharge its initial burden
under Civ.R. 56 simply by making a conclusory assertion the nonmoving party has no
evidence to prove its case. Rather, the moving party must be able to specifically point to
some evidence of the type listed in Civ.R. 56(C) which affirmatively demonstrates the
nonmoving party has no evidence to support the nonmoving party's claims. 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 Civ.R. 56(E) to set forth specific facts showing
Tuscarawas County, Case No. 2014 AP 10 0044 6
there is a genuine issue for trial and, if the nonmovant does not so respond, summary
judgment, if appropriate, shall be entered against the nonmoving party.” The record on
summary judgment must be viewed in the light most favorable to the opposing party.
Williams v. First United Church of Christ (1974), 37 Ohio St.2d 150, 309 N.E.2d 924.
{¶17} Appellant maintains there remains a genuine issue of material fact as to
whether a perilous situation existed, which would necessitate Appellee to exercise a
heightened standard of care.
{¶18} Appellant cites as support Williams v. Putnam Transfer & Storage, Eighth
Dist. No. 64659, 1994WL30425, in which the Eighth District held,
In addition, case law imposes a higher standard of care on
operators of motor vehicles when (1) a child pedestrian is involved; (2)
children may reasonably be expected to be in the vicinity; or (3) the driver
becomes aware of a perilous situation. See Sargent v. United
Transportation Co. (1978), 56 Ohio App.2d 159; James v. Franks (1968),
15 Ohio App.2d 215; Falck v. Proos (1982), 8 Ohio App.3d 22; Bell, supra;
Hubner, supra.
{¶19} It is undisputed Appellant was thirty-seven years old at the time of the
accident; thus, not of tender years. Further, it is uncontroverted Appellant did not have
her flashers or emergency lights on at the time of the incident. There were no conditions
present, prior to Ramsier seeing Appellant on the roadway to put Ramsier on notice of
Appellant's presence. Why the weather and road conditions may have presented a
perilous situation, for the reasons discussed infra, we find Appellant has not
demonstrated Ramsier violated even a heightened duty of care.
Tuscarawas County, Case No. 2014 AP 10 0044 7
{¶20} Appellant further maintains the totality of the circumstances creates a
genuine issue of material fact as to whether Appellee Ramsier was negligent.
{¶21} The undisputed evidence demonstrates Appellant exited her car and
attempted to wave down Appellee Ramsier. Ramsier did not have an obligation to look
for pedestrians in his path. Deming v. Osinki 24 Ohio St2d. 179, 265 N.E.2d 554
(1970). We find Appellant's assertion there is a genuine issue of fact as to where she
was at the time of the alleged contact with Ramsier's truck is belied by the evidence.
Appellant's assertion she was beside her car is unreasonable because her car was off
the opposite side of the roadway. There is no evidence Ramsier ever left his side of
the roadway, let alone crossed over and left the opposite side of the roadway where
Appellant asserts she was standing near her car. Pursuant to R.C. 4511.50, Appellant
had a duty to walk on the shoulder of the highway and stay as near to the outer edge as
possible, and to yield the right of way to all other vehicles. There is no evidence
Ramsier violated any traffic regulations, or failed to yield the right of way to Appellant.
The evidence supports the conclusion that Appellant had improperly entered upon the
highway.
{¶22} Viewing the evidence in a light most favorable to Appellant, we find there
are no genuine issues of material fact, and reasonable minds could come to but one
conclusion in favor of Appellees. Accordingly, we do not find the trial court erred in
granting summary judgment in favor of Appellees Ramsier and Mineral Trucking, Inc.
Tuscarawas County, Case No. 2014 AP 10 0044 8
{¶23} The September 23, 2014 Judgment Entry entered by the Tuscarawas
County Court of Common Pleas is affirmed.
By: Hoffman, P.J.
Farmer, J. and
Wise, J. concur