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Anderson v. Schmidt

Court of Appeals of Ohio, Eighth District

August 15, 2013

DALE ANDERSON, ET AL. PLAINTIFFS-APPELLANTS
v.
ROBERT E. SCHMIDT, ET AL. DEFENDANTS-APPELLEES

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-759640.

ATTORNEYS FOR APPELLANTS Matthew A. Palnik Donald G. Riemer Shapiro, Marnecheck, Riemer & Palnik.

ATTORNEY FOR APPELLEES Jan L. Roller Davis & Young.

BEFORE: Kilbane, J., Boyle, P.J., and Rocco, J.

JOURNAL ENTRY AND OPINION

MARY EILEEN KILBANE, J.

(¶ 1} Plaintiffs-appellants, Dale Anderson ("Dale"), Julius Anderson ("Julius"), and Viola Anderson ("Viola") (collectively known as "plaintiffs"), the children of Priscilla Anderson ("the decedent"), appeal from the final judgment in an action for wrongful death filed against defendants-appellees, Robert Schmidt ("Schmidt") and Rich's Towing (collectively known as "defendants"). We find that the trial court committed prejudicial error in connection with the charge to the jury; therefore, we reverse and remand for further proceedings in accordance with this opinion.

(¶2} On April 9, 2010, the decedent was struck by a tow truck, operated by Schmidt of Rich's Towing, as she was attempting to cross Bagley Road at the Front Street intersection in Berea. She suffered a fractured pelvis and subsequently contracted pneumonia and died on May 26, 2010. Dale was appointed administrator of her estate. In his representative capacity and individual capacity he, together with his siblings in their individual capacities, filed a wrongful death action against defendants on July 14, 2011.

(¶3} The matter proceeded to a jury trial on August 6, 2012. Plaintiff presented the videotaped testimony of Berea Police Officer Rob Chernisky ("Chernisky") and the testimony of Steve McKenna ("McKenna"), Choya Hawn ("Hawn"), Dale, and Julius.

(¶4} Chernisky testified that on April 9, 2010, at approximately 1:15 p.m., the decedent was at the northwest corner of the intersection of Front Street and Bagley Road, and was waiting to cross Bagley Road toward the southwest corner of the intersection. Schmidt was driving a 1998 Peterbilt tow truck and was in the southbound lane of Front Street, waiting to turn right onto the westbound lane of Bagley Road. According to Chernisky, as the light for Front Street turned green or at the indication of the walk signal, a pedestrian in the crosswalk would have the right-of-way and vehicles would have to yield.

(¶ 5} By the time Chernisky arrived, he observed the decedent lying on Bagley Road, partially beneath the tow truck, just in front of the right tire. Chernisky did not speak with the decedent, and she was transported to the hospital. Schmidt told Chernisky that he did not see the decedent, and after speaking with Schmidt and witnesses Annette Washington ("Washington") and McKenna, Chernisky determined that when the light on Front Street turned green, Schmidt began to make a wide right turn onto Bagley and then struck the decedent. Photographs depict the decedent partially beneath the tow truck. Her feet were approximately 14 feet away from the curb and her head was beneath the tow truck. There were skid marks immediately to the east of the decedent, near the crosswalk traversing Bagley Road.

(¶ 6} On cross-examination, Chernisky testified that according to a pamphlet prepared by the Ohio Department of Public Safety, pedestrians should look both ways before crossing and should continue to check for traffic as they proceed. The defense also asked him to assume that a clean portion of the truck near the passenger door may have been the point where the decedent and the tow truck made contact, and in light of that assumption, then the decedent walked from the curb and into the side of the truck as it was turning.

(¶ 7} McKenna testified that he was in a vehicle driven by his coworker, Dave Disinger ("Disinger"). They were stopped in the northbound direction of Front Street at the Bagley Road intersection, and McKenna observed the decedent standing near a pole at the northwest corner of the street, near the ramp of the crosswalk. After the light for Front Street traffic turned green, McKenna noticed the decedent crossing inside the crosswalk and observed the tow truck making a right turn. According to McKenna, the decedent "wasn't looking around" to see the tow truck coming at her, nor did the decedent or the tow truck yield to the other. McKenna was certain that he observed the decedent inside the crosswalk. He next noticed that she was down and her feet were visible from under the tow truck, several steps away from the curb. McKenna told Disinger, "That truck just ran over that old lady, and he had no clue." McKenna stated on cross-examination that the decedent did not look to her left to see the tow truck as it approached. He also stated that she was still standing when the front of the tow truck passed her.

(¶8} Hawn, of Introtech, Inc., an accident reconstruction company, testified that he is a former Ohio State Trooper and has training and experience in accident investigation and reconstruction. Hawn examined police photographs, medical records, skid marks, made various measurements of the truck, and read Schmidt's deposition, McKenna's deposition, and Washington's deposition. Hawn determined that the accident occurred after the decedent had been walking for 3.4 seconds when the decedent was 14 feet from the curb. At that point, Schmidt was 7 seconds into his turn and traveled approximately 35 feet and was traveling 6 or 7 miles per hour. Hawn stated that the typical reaction time between seeing a danger and responding to it is 1.5 seconds. He determined that 1.5 seconds before the collision, the truck would have been immediately to the decedent's left and slightly behind her, and even if she had stopped, the side of the truck would have still hit her. Hawn stated that the truck has limited visibility spots in the front on the right of the vehicle. In Hawn's opinion, the collision occurred because Schmidt failed to yield the right- of-way to the decedent. Hawn acknowledged on cross-examination that the decedent was not struck by the front of the vehicle but was hit from the side.

(¶ 9} Dale Anderson testified that his mother was hospitalized for eight days after the accident. She had a fractured pelvis and multiple contusions, and she was subsequently transferred to a rehabilitation facility to address her mobility issues. She remained there for about a month and had begun to use a walker. She then contracted pneumonia and was transported to Lakewood hospital where she died. She incurred medical bills totaling $173, 615.32. Julius testified that he frequently stayed with his mother.

(¶ 10} The defense presented testimony from Washington, Schmidt, and Richard Stevens of Valley Technical Services, an accident reconstructionist. Washington, a bus driver for the Cuyahoga County Board of Mental Retardation and Development Disabilities ("MRDD"), testified that she was driving a school bus heading eastbound on Bagley Road. Washington observed the decedent on the red brick or pedestrian pad of the ramp leading to the crosswalk. The tow truck was already moving, making a right-hand turn. The tow truck made its turn and, as it did so, Washington observed the decedent step into the crosswalk. According to this witness, the decedent stepped off the pad near the crosswalk as the tow truck was already turning. Following the collision, Washington ran over to Schmidt and said, "You wouldn't have seen her."

(¶ 11} Schmidt testified that he was stopped in the far right lane of the southbound direction of Front Street and intended to turn right or westward onto Bagley Road. Because of the size of his vehicle, and his intention to make a left turn immediately after turning onto Bagley, when the light turned green, he headed toward the left lane of Bagley Road rather than the rightmost lane. Schmidt stated that he looked but did not did not see anyone in the adjacent crosswalk or pedestrian area, but as he was into his turn, he heard a thud. He got out of his truck and saw the decedent's legs near the passenger side of the truck. The decedent reportedly asked, "Didn't you see me?" and he told her that he did not.

(¶ 12} Stevens testified that he is a former Ohio State Trooper who has experience and training in crash investigation and accident reconstruction. He formerly worked at Introtech. Stevens "mapped" the scene of the crash, documenting the position of the vehicle, distances, and other factors. He acknowledged that there was not "any great discrepancy of either timing or distance" in the calculations he performed and those performed by plaintiffs' expert, Hawn. Stevens testified that at approximately 12 feet away from the curb there was contact between the tow truck and the decedent, and the contact point was on the right side of the truck, at the point of the fuel tank and the steps to the passenger compartment. Stevens also prepared a visibility study, using a camera mounted to a hard hat worn by Schmidt as he drove through the intersection of Front Street and Bagley Road. From the first run through, the pedestrian was visible in the beginning, as she is standing on the pedestrian pad just before the crosswalk. In subsequent run-throughs, however, a pedestrian at this location is not visible to the driver.

(¶ 13} According to Stevens, a pole in this area could obstruct the driver's view of a pedestrian. Stevens also testified that the tow truck was going into the left lane just before it stopped. Stevens opined that the accident occurred because neither the decedent nor Schmidt saw the other. According to Stevens, Schmidt could not see the decedent because of visibility problems identified in the visibility study, but the decedent would have been able to see the tow truck had she turned her head to the left and also would have been able to hear the truck coming. Stevens maintained that she had 5.6 seconds to detect and react to the tow truck but did not do so. He acknowledged on cross-examination that the driver is required to yield to pedestrians in the crosswalk.

(¶ 14} The parties subsequently entered into the following stipulations that were read to the jury:

Number One, Mr. Schmidt was stopped on Front Street on or near the stop bar before getting a green light; number two, Ms. Anderson was walking with a green light. Bagley Road had a green light for east/west traffic; while stopped at the light and making his turn, Mr. Schmidt did not see Ms. Anderson; and the fourth stipulation is that the initial impact was about 6.5 feet back from the front of the truck in the area of the front plate of the attached steps.

(15} On August 27, 2012, the jury returned a verdict in favor of plaintiff in the amount of $100, 000. In special interrogatories, the jurors concluded that Schmidt's negligence was a direct and proximate cause of the damages; that each was 50 percent negligent; that "the medical bills are $30, 000; $5, 000 in funeral expenses; $65, 000 to the estate of Priscilla Anderson, zero to the three children, for a total of $100, 000." Plaintiffs appeal and assign six errors for our review.

16} Plaintiffs' second assignment of error states:

The trial court erred by providing the jury with several inapplicable instructions to the case at bar.

(¶ 17} Within this assignment of error, plaintiffs complain that the trial court erred in giving an instruction that if a pedestrian loses her right-of-way by not proceeding in a lawful manner, then each party must use ordinary care under the circumstances. Further, plaintiffs complain that the court erred in instructing the jury that a person is negligent when they do not continue to look if, under the circumstances, a reasonably prudent person would have continued to look, and that a pedestrian must not suddenly leave the curb and walk into the path of a vehicle.

18} In considering the appropriateness of a jury instruction, a reviewing court must view the instructions as a whole. Atkinson v. Internatl. Technegroup, Inc., 106 Ohio App.3d 349, 365, 666 N.E.2d 257 (1st Dist.1995). In this matter, the court instructed the jury as follows:

Right of way means the right of a pedestrian to proceed uninterruptedly in a lawful manner in the direction in which he or she was moving in reference to another vehicle approaching from a different direction into her path. * *
To keep her right of way as a preferred party to continue to travel uninterruptedly, the pedestrian must walk in a lawful manner. If he or she does not do so, she loses the right of way by not proceeding in a lawful manner, each party must then use ordinary care under the circumstances.
A pedestrian who has the right of way has the right to travel uninterruptedly in a lawful manner. She has the right to rely upon her preferred status and to assume, in the absence of knowledge to the contrary, that others will obey the law by stopping and yielding her the right of way and not entering into her path of travel.
The driver of the vehicle who does not have the right of way must permit the other party to proceed without interruption. He must not move into the intersection or that part of the intersection about to be occupied by the preferred party, if such movement would interrupt the progress of the preferred party. The party who does not have the right of way must look at such times and places in a manner that will make his looking effective, and he must wait and travel at a speed slow enough to stop and avoid entering into the path of the approaching pedestrian having the right of way. Failure to yield the right of way to a preferred party is negligence. If you find that the plaintiff was not walking in a lawful manner, then she lost the right of way and is not entitled to any preference over the other driver. In that event, the defendant was not required to yield the right of way and the parties * * * have equal rights and each must use ordinary care under the circumstances. If you find that the plaintiff was walking in a lawful manner, then she had the right of way and the defendant was required to yield the right of way to her.
A pedestrian facing a pedestrian controlled signal indicating "walk" may proceed or walk across the roadway in the direction of the signal. And they have the right of way over all vehicles, streetcars and/or trolleys.
However, a pedestrian must not suddenly leave a curb and walk or run into the path of a vehicle which is so close that it causes immediate hazard.
The parties are required to use ordinary care in order to discover and avoid danger.
A person is negligent if they look but do not see that which would have been seen by a reasonably prudent person under the same or similar circumstances.
A person is negligent when they do not continue to look if, under the circumstances, a reasonably prudent person ...

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