Smith v. Hess, 2018-CA-8

• Decision Date: 07 September 2018
• Docket Number: No. 2018-CA-8,2018-CA-8
• Citation: 2018 Ohio 3602,108 N.E.3d 1266
• Parties: Michael SMITH, et al., Plaintiffs-Appellants v. Heather HESS, Defendant-Appellee
• Court: Ohio Court of Appeals

108 N.E.3d 1266

2018 Ohio 3602

Michael SMITH, et al., Plaintiffs-Appellants

v.Heather HESS, Defendant-Appellee

No. 2018-CA-8

Court of Appeals of Ohio, Second District, Greene County.

Rendered on September 7, 2018

DARREN McNAIR, Atty. Reg. No. 0075073 and CHAD M. STONEBROOK, Atty. Reg. No. 0089282, 3956 Brown Park Drive, Suite B, Hilliard, Ohio 43240, Attorneys for Plaintiffs-Appellants.

WILBUR H. HANE, Atty. Reg. No. 0073529, 1900 Polaris Parkway, Suite 200B, Columbus, Ohio 43240, Attorney for Defendant-Appellee.

OPINION

FROELICH, J.

{¶ 1} Michael and Victoria Smith appeal from the Greene County Common Pleas Court's entry of partial summary judgment in favor of Heather Hess, the driver of a vehicle that rear-ended a vehicle that then struck the stopped vehicle occupied by the Smiths. Because there is no genuine issue of fact and, as a matter of law, the automobile accident was not a proximate cause of Michael Smith's shoulder injury, the judgment of the trial court will be affirmed.

Factual Background and Procedural History

{¶ 2} On the evening of February 13, 2016, Michael Smith ("Smith") had stopped the sedan he was driving at a traffic light in Beavercreek, Ohio. Smith's wife, Victoria, was seated in the front passenger seat. Without warning, their vehicle was struck from behind by a "hard impact." After confirming that his wife was not injured, Smith called 911. He then exited his vehicle and checked on the woman driving the car behind his, confirming that she, too, was "okay." He noticed damage to the rear bumper of his car and to the front of the second car. He did not check on a third vehicle that had struck the car behind his. The driver of the third vehicle was Heather Hess.

{¶ 3} A Beavercreek police cruiser arrived approximately 15 to 20 minutes later. Smith immediately advised the responding officer that he had an enlarged prostate and needed to urinate. The police officer told Smith to wait briefly. After a few minutes, Smith again approached the officer, repeating that he needed to urinate. Again, the officer told Smith to wait, as the officer planned to have the three drivers involved in the accident move their vehicles to a nearby gas station where he would complete the police report.

{¶ 4} Upon learning that the driver of the second vehicle did not have a valid driver's license, however, the police officer informed Smith that he could not allow the drivers to move their vehicles until a licensed driver arrived to move the second vehicle or the officer arranged to have that vehicle towed. At that point, Smith advised the police officer that he could not wait any longer to empty his bladder. According to Smith, the officer instructed him to "step over the guardrail and go down the hill to that bush and pee."

{¶ 5} During his deposition, Smith testified that the hill was "very, very steep" and covered with "ice[,] with snow over the ice." The bush was "[m]aybe a third of the way down" the hillside. Because no restrooms were available in the immediate vicinity, Smith stepped over the guardrail and tried to get my footing because, like I said, it was snow-covered ice. Started down the hill and I started slipping, and kind of had no control. It was like I basically started running down the hill. I was trying to get my footing. I just, you know, was just trying to grasp the ground, you know, to hang on. And I even grabbed some small trees that were growing up on the side of the hill, trying to grab them to stop, and I pulled them out of the ground. And I just kept going. And I tripped and went flying through the air more or less down the hill and landed in the ravine, the upward slope of the ravine down at the bottom.

{¶ 6} Smith testified that he landed 200-250 feet from the guardrail, with his right shoulder "[k]ind of jammed * * * into the embankment," where he lost consciousness. When he regained consciousness, the police officer was calling down to him; Smith urinated and made his way back up the hillside, cradling his arm in the front of his coat. The police officer assisted Smith with the last 15-20 feet and called an ambulance that transported Smith to a medical center, where he was diagnosed with a fractured right humerus. After keeping his right arm in a sling for nearly a month, Smith underwent surgery on March 8, 2016, to have a plate and 12 screws inserted in his right arm to affix the humerus bone near his shoulder.

{¶ 7} The Smiths filed a complaint against Hess, seeking damages for Michael Smith's personal injuries and related losses and Victoria Smith's loss of consortium. Hess moved for summary judgment, arguing that the automobile accident she allegedly caused was not the proximate cause of Smith's injuries, which instead resulted from Smith's own negligence in falling down the hillside after the accident. In support of her motion, she attached a copy of the transcript of Smith's deposition testimony. The Smiths opposed Hess's motion, urging that Hess's negligence was a proximate cause of Smith's injuries because the automobile accident set in motion "a natural and continuous sequence [that] produce[d] an injury without which the result would not have occurred."

{¶ 8} The trial court granted Hess's motion in part, entering summary judgment "in favor of [Hess] as to all claims arising from Plaintiff Michael Smith's slip and fall on a hillside adjacent to the scene of the subject car accident," but denying summary judgment as to any other claims arising from that accident. Pursuant to Civ.R. 54(B), the trial court expressly determined that there was "no just cause for delay," making the summary judgment decision immediately appealable.

{¶ 9} The Smiths appeal from that judgment, setting forth five assignments of error:

1) The trial court erred in ruling that walking down the hill was an intervening superseding cause of the shoulder injury.

2) The trial court erred by concluding walking down a hill broke the ca[us]al chain between the car accident and the shoulder injury.

3) The trial court erred by concluding that the injury, in light of all the circumstances, was reasonably foreseeable [sic] by the tortfeasor.¹

4) The trial court erred by granting partial summary judgment because reasonable minds could differ on the issue of proximate cause.

5) The trial court erred by stating that Plaintiffs have not submitted any evidence in opposition to the Motion for Summary Judgment, and rests [sic] merely on legal arguments.

Standard Applicable to Motions for Summary Judgment

{¶ 10} Pursuant to Civ.R. 56(C), summary judgment is proper when (1) there is no genuine issue as to any material fact, (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds, after construing the evidence most strongly in favor of the nonmoving party, can only conclude adversely to that party. Zivich v. Mentor Soccer Club, Inc., 82 Ohio St.3d 367, 369-370, 696 N.E.2d 201 (1998). The moving party carries the initial burden of affirmatively demonstrating that no genuine issue of material fact remains to be litigated. Mitseff v. Wheeler, 38 Ohio St.3d 112, 115, 526 N.E.2d 798 (1988) ; Dresher v. Burt, 75 Ohio St.3d 280, 292, 662 N.E.2d 264 (1996). To this end, the movant must be able to point to evidentiary materials of the type listed in Civ.R. 56(C) that a court is to consider in rendering summary judgment. Dresher at 292-293, 662 N.E.2d 264.

{¶ 11} Once the moving party satisfies its burden, the nonmoving party may not rest upon the mere allegations or denials of its pleadings. Id. ; Civ.R. 56(E). Rather, the burden then shifts to the nonmoving party to respond, with affidavits or as otherwise permitted by Civ.R. 56, setting forth specific facts that show that there is a genuine issue of material fact for trial. Id. Throughout, the evidence must be construed in favor of the nonmoving party. Id. ; Civ.R. 56(C).

{¶ 12} Appellate review of the trial court's ruling on a summary judgment motion is de novo. Schroeder v. Henness , 2d Dist. Miami No. 2012 CA 18, 2013-Ohio-2767, 2013 WL 3356564, ¶¶ 38-42, citing Helton v. Scioto Cty. Bd. of Commrs., 123 Ohio App.3d 158, 162, 703 N.E.2d 841 (4th Dist.1997).

Law regarding Proximate Cause

{¶ 13} A claim for personal injuries requires the existence of a duty, the defendant's breach of that duty, and injury or damages that are proximately caused by that breach. Wallace v. Ohio Dept. of Commerce, 96 Ohio St.3d 266, 2002-Ohio-4210, 773 N.E.2d 1018, ¶ 22. The "proximate cause" element ordinarily is established " ‘where an original act is wrongful or negligent and, in a natural and continuous sequence, produces a result [that] would not have taken place without the act.’ " Heard v. Dayton View Commons Homes , 2d Dist. Montgomery, 2018-Ohio-606, 106 N.E.3d 327, ¶ 12 ; see also Clinger v. Duncan, 166 Ohio St. 216, 222, 141 N.E.2d 156 (1957).

{¶ 14} "It is a well-established principle of tort law that an injury may have more than one proximate cause." Leasure v. UVMC , 2d Dist. Miami No. 2016-CA-21, 2017-Ohio-7196, 2017 WL 3446986, ¶ 21, quoting Murphy v. Carrollton Mfg. Co., 61 Ohio St.3d 585, 587, 575 N.E.2d 828 (1991). "[W]hen two factors combine to produce damage * * *, each is a proximate cause." Id. , quoting Murphy at 588, 575 N.E.2d 828 ; see also Garbe v. Halloran , 150 Ohio St. 476, 83 N.E.2d 217 (1948), paragraph one of the syllabus ("Concurrent negligence consists of the negligence of two or more persons concurring, not necessarily in point of time, but in point of consequence, in producing a single indivisible injury.").

{¶ 15} Generally, where proximate cause has been established, "the fact that some other act unites with the original act to cause injury does not relieve the initial offender from liability." Clinger at 222, 141 N.E.2d 156. "In order to relieve a party of liability, a break in the chain of causation must take place." Berdyck v. Shinde , 66 Ohio St.3d 573, 584, 613 N.E.2d 1014 (1993). Such a break occurs "when there intervenes between an agency...