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Hale v. State Farm Mutual Automobile Insurance Co.

Court of Appeals of Ohio, Fifth District, Stark

July 30, 2018

ALBERT JOHN HALE Plaintiff-Appellant

          Appeal from the Stark County Court of Common Pleas Court, Case No. 2017CV00097

          For Plaintiff-Appellant JOHN T. SCANLON The Scanlon Group, Co. L.P.A.

          For Defendant-Appellee MATTHEW P. MULLEN JOHN P. MAXWELL ALETHA M. CARVER Krugliak, Wilkins, Griffiths & Dougherty Co., L.P.A.

          Hon. W. Scott Gwin, P.J. Hon. William B. Hoffman, J. Hon. Earle E. Wise, Jr., J.


          Hoffman, J.

         {¶1} 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.


         {¶2} 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 falling.

         {¶3} 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.

         {¶4} 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.

         {¶5} Appellant filed the instant action against Appellee seeking coverage under the uninsured motorist portion of his insurance policy with Appellee.[1] 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.

         {¶6} 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.

         {¶7} It is from that entry Appellant prosecutes this appeal, assigning as error:


         {¶8} 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 party's favor.

         {¶9} 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 280, 1996-Ohio-107.

         {¶10} 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.

         {¶11} 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 (1963).

         {¶12} 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.

         {¶13} Appellant argues reasonable minds could reach differing conclusions in the instant case as to whether the Pilot was reasonably discernable.

         {¶14} 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. ...

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