The opinion of the court was delivered by: Judge Algenon L. Marbley
Magistrate Judge Norah McCann King
This matter is before the Court on Defendant Eddie McElfresh's Motion for Summary Judgment. Having now heard oral argument on the motion, and for the reasons set forth herein, the Defendant's Motion is DENIED.
Plaintiffs sue as administrators on behalf of the Estate of decedent Rama Novovic, who was tragically struck and killed by Defendant Eddie McElfresh's vehicle in the early morning hours of August 31, 2007, on Interstate Highway 70 outside New Concord, Ohio. Prior to the accident, Mr. Novovic had been traveling as a passenger on a bus owned by Defendant Motor Coach Industries, Inc. ("Motor Coach") and operated by Defendant Greyhound Lines, Inc. ("Greyhound"). The bus suffered a mechanical malfunction, causing the bus driver, Defendant Brian Fisher, to pull the bus over into an area between Interstate 70's westbound lanes, and the Exit 169 on-ramp to Interstate 70. Mr. Fisher brought the bus to a stop and activated the bus's four-way flashers.
Upon the passengers' request, Mr. Novovic and others were permitted by Mr. Fisher to exit the bus to smoke or stretch while they waited for a solution to the bus malfunction. Mr. Fisher warned the exiting passengers to stay in the grassy area off to the side of the highway.
Mr. Novovic, however, strayed onto the onramp and was standing roughly in the middle of the onramp when Defendant McElfresh came traveling up the onramp in his car, and struck him. The time was about 3:45 a.m. and it was dark outside. There were no streetlights illuminating the area where Mr. Novovic was standing. In addition to the bus's flashing lights, however, Mr. Fisher had placed two reflective triangles behind the bus and was in the process of placing a third when McElfresh's car struck Mr. Novovic. Later that same day, Mr. Novovic died as a result of his injuries.
Mr. McElfresh was 27 years of age at the time of the accident, and had no identified impairments to his ability to operate a motor vehicle. He was quite familiar with this particular entrance ramp onto Interstate 70, as he drove it every day to work at around the same time in the early morning. On the morning of August 31, 2007, once McElfresh turned and began proceeding up the onramp, he switched off his high beam headlights so that only his low beams remained on. As McElfresh approached the end of the onramp where Mr. Novovic was standing, he had accelerated to a speed of 50-55 miles per hour, and turned his head away from the path in front of him for a few seconds to check his mirrors for oncoming traffic as he prepared to merge onto the highway. When he returned his gaze to the road ahead, he slammed on his breaks to try to avoid hitting Mr. Novovic, who had suddenly appeared in front of him, but did not swerve to avoid him because of the numerous other people standing on either side of the road. McElfresh was unable to break in time to avoid hitting Mr. Novovic.
The accident was investigated by Ohio State Trooper Keith Roe ("Trooper Roe"), and later by Mr. Choya Hawn, a Highway Patrol Officer and accident reconstructionist ("Officer Hawn"). Trooper Roe's traffic crash report indicated that he did not find McElfresh's actions to have contributed to the crash. McElfresh Exh. B, at 7. Upon completion of his accident reconstruction, Officer Hawn rendered opinions similarly concluding that McElfresh acted reasonably and could not have avoided colliding with Novovic under the circumstances that morning. McElfresh Exh. C, at 2.
Plaintiffs were appointed as administrators of Mr. Novovic's Estate by the Surrogate of Queens County, New York, on April 3, 2008. In that capacity, Plaintiffs initially filed actions in both the Eastern District of New York and this Court. On August 26, 2009, the case was consolidated into one action and transferred to this Court. The Complaint for damages alleges state law causes of action for negligence and wrongful death against all defendants. On October 12, 2009, Defendants Greyhound and Fisher filed their Answer, which contained a cross-claim against Defendant McElfresh for indemnification in the event they are found liable to Plaintiffs. (Doc. 19). Defendant Motor Coach's Answer filed shortly thereafter raised a similar cross-claim for contribution and indemnification against Defendant McElfresh (Doc. 21).
On June 24, 2011, Defendant McElfresh moved for summary judgment on Plaintiffs' and Defendant Cross-Claimants' claims pursuant to Rule 56 (Doc. 48). Plaintiffs do not oppose McElfresh's motion (Doc. 50). Defendants Greyhound, Fisher, and Motor Coach submitted their opposition jointly (Doc. 49). The Court heard oral ...