from the Stark County Court of Common Pleas Court, Case No.
Plaintiff-Appellant JOHN T. SCANLON The Scanlon Group, Co.
Defendant-Appellee MATTHEW P. MULLEN JOHN P. MAXWELL ALETHA
M. CARVER Krugliak, Wilkins, Griffiths & Dougherty Co.,
W. Scott Gwin, P.J. Hon. William B. Hoffman, J. Hon. Earle E.
Wise, Jr., J.
Appellant Albert John Hale appeals the summary judgment
entered by the Stark County Common Pleas Court dismissing his
breach of contract action against Appellee State Farm Mutual
Automobile Insurance Company.
OF THE FACTS AND CASE
At approximately 8:26 p.m. on April 8, 2016, Appellant was
involved in an automobile accident on Interstate 77. Five
vehicles were travelling southbound in the center of three
lanes in the following order: a pickup truck, a Honda Pilot
(hereinafter "Pilot"), a Chevy Traverse
(hereinafter "Traverse"), a Mitsubishi Outlander
operated by Appellant, and a Saturn LS (hereinafter
"LS"). It was dark outside, and a rain-snow mix was
The pickup truck was carrying a barbeque grill in its bed,
which fell off the truck into the center lane of travel. The
pickup continued on its way, and the driver was not
identified. The Pilot came to a complete stop in the lane of
travel without striking the grill. The Traverse swerved to
the left upon seeing the Pilot stop, but ultimately hit the
Pilot. After the Traverse swerved, Appellant struck the
Pilot. The LS then struck Appellant from behind.
Appellant has uninsured motorist benefits under a policy with
Appellee, which entitles him to uninsured motorist coverage
from the "owner or operator of:
A motor vehicle who remains unidentified but independent
corroborative evidence exists to prove that bodily injury was
proximately caused by the intentional or negligent actions in
the operation of a motor vehicle by the unidentified operator
of the motor vehicle.
State Farm Policy Form 9835B Uninsured Motor Vehicle
Coverage, p. 14.
Appellant filed the instant action against Appellee seeking
coverage under the uninsured motorist portion of his
insurance policy with Appellee. Appellee moved for summary
judgment. Appellee conceded the negligence of the uninsured
motorist, but argued Appellant was negligent as a matter of
law by violating R.C. 4511.21, Ohio's assured clear
distance statute, and Appellant's own negligence was the
sole proximate cause of his injuries. Appellee also argued
the Pilot driver's ability to stop, coupled with
Appellant's negligence, broke the chain of causation from
the driver of the pickup.
The trial court granted the motion for summary judgment,
finding as follows:
Plaintiff has acknowledged seeing the Pilot, the parties do
no [sic] dispute that the Pilot was continuously traveling in
the lane of travel until he came to a stop and did not
suddenly swerved [sic] into Plaintiff's lane of travel.
Plaintiff was required, at all times, to maintain a safe
distance from the vehicle in front of him. The Court notes
that the statute does not state a specific distance, as that
distance may vary, including on the evening in question, when
it was dark, rainy, and the roadway was wet.
While the barbecue grill was undoubtedly the trigger for the
chain reaction car accident, had Plaintiff maintained that
safe distance as required by the statute, he would have been
able to avoid striking the Pilot. He failed to do so.
Therefore, Plaintiff has an uninsured motorist coverage
policy that will only cover injuries proximately caused by
the intentional or negligent actions of an unidentified
driver. The driver of the pickup truck is unidentified, but
the facts show that his negligence in failing to properly
secure his barbeque grill did not cause the injuries
to Plaintiff. Instead, Plaintiff had a legal obligation to
maintain a safe enough distance between himself and the
car(s) in front of him to avoid hitting said cars. No
exception to this legal duty exists. Judgment entry, October
26, 2017, pp.3-4.
It is from that entry Appellant prosecutes this appeal,
assigning as error:
"THE TRIAL COURT ERRONEOUSLY GRANTED SUMMARY JUDGMENT IN
FAVOR OF DEFENDANT-APPELLEE STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY. REASONABLE MINDS COULD COME TO DIFFERENT
CONCLUSIONS, AND QUESTIONS OF FACT REMAIN WHETHER THE
NEGLIGENCE OF THE UNIDENTIFIED/UNINSURED MOTORIST WAS A
PROXIMATE CAUSE OF PLAINTIFF-APPELLANT ALBERT HALE'S
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., 30 Ohio St.3d 35, 36 (1987). As such, we must
refer to Civ. R. 56(C) which provides in pertinent part:
Summary Judgment shall be rendered forthwith if the
pleadings, depositions, answers to interrogatories, written
admissions, affidavits, transcripts of evidence, and written
stipulations of fact, if any, timely filed in the action,
show that there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a matter
of law. No evidence or stipulation may be considered except
as stated in this rule. A summary judgment shall not be
rendered unless it appears from the evidence or stipulation,
and only from the evidence or stipulation, that reasonable
minds can come to but one conclusion and that conclusion is
adverse to the party against whom the motion for summary
judgment is made, that party being entitled to have the
evidence or stipulation construed most strongly in the
Pursuant to the above rule, a trial court may not enter
summary judgment if it appears a material fact is genuinely
disputed. The party moving for summary judgment bears the
initial burden of informing the trial court of the basis for
its motion and identifying those portions of the record that
demonstrate the absence of a genuine issue of material fact.
The moving party may not make a conclusory assertion that the
non-moving party has no evidence to prove its case. The
moving party must specifically point to some evidence which
demonstrates that the moving party cannot support its claim.
If the moving party satisfies this requirement, the burden
shifts to the non-moving party to set forth specific facts
demonstrating that there is a genuine issue of material fact
for trial. Vahila v. Hall, 77 Ohio St.3d 421, 429,
1997-Ohio-259, citing Dresher v. Burt, 75 Ohio St.3d
Appellant first argues whether he violated R.C. 4511.21 is an
issue of material fact. R.C. 4511.21(A) states:
No person shall operate a motor vehicle, trackless trolley,
or streetcar at a speed greater or less than is reasonable or
proper, having due regard to the traffic, surface, and width
of the street or highway and any other conditions, and no
person shall drive any motor vehicle, trackless trolley, or
streetcar in and upon any street or highway at a greater
speed than will permit the person to bring it to a stop
within the assured clear distance ahead.
A violation of said statute depends on whether there is
evidence the driver collided with an object which (1) was
ahead of him in his path of travel, (2) was stationary or
moving in the same direction as the driver, (3) did not
suddenly appear in the driver's path, and (4) was
reasonably discernible. See Ziegler v. Wendel Poultry,
Inc., 67 Ohio St.3d 10, 12, 615 N.E.2d 1022 (1993);
Junge v. Brothers, 16 Ohio St.3d 1, 3, 475 N.E.2d
477 (1985); Blair v. Goff-Kirby Co., 49 Ohio St.2d
5, 7, 358 N.E.2d 634 (1976). Violation of the assured clear
distance statute constitutes negligence per se. Cox v.
Polster, 174 Ohio St. 224, 226, 188 N.E.2d 421, 423
Where conflicting evidence is presented as to any of the
elements necessary to establish a violation of R.C.
4511.21(A), a jury question is created. Ziegler,
supra, at 12. "Especially in cases involving the
assured-clear-distance statute, which, by definition, require
evaluation of the conduct of the driver in light of the facts
surrounding the collision, the judgment of a jury is more
likely to achieve a fair result than is a judge-made rule of
law." Blair, supra, at 9.
Appellant argues reasonable minds could reach differing
conclusions in the instant case as to whether the Pilot was
Whether an object is discernable is not the same as whether
it is visible:
The word "discernible" ordinarily implies something
more than "visible." "Visible" means
perceivable by the eye whereas "discernible" means
mentally perceptible or distinguishable, -capable of being
"discerned" by the understanding and not merely by
the senses.'" (Emphasis sic.) McFadden v. Elmer
C. Breuer Transp. Co.,156 Ohio St. 430, 441-442, 103
N.E.2d 385 (1952), quoting Colonial Trust Co., Admr. v.
Elmer C. Breuer, Inc.,363 Pa. 101, 69 A.2d 126 (1949).
Accordingly," '[discernible' means cognitive
awareness while 'visible' means merely capable of
being seen." Tritt v. ...