Norris v. Ohio Standard Oil Co., 81-895

• Citation: 433 N.E.2d 615,70 Ohio St.2d 1,24 O.O.3d 1
• Decision Date: 07 April 1982
• Docket Number: No. 81-895,81-895
• Parties: , 24 O.O.3d 1 NORRIS et al., Appellants, v. OHIO STANDARD OIL CO. et al., Appellees.
• Court: United States State Supreme Court of Ohio

Page 1

70 Ohio St.2d 1

433 N.E.2d 615, 24 O.O.3d 1

NORRIS et al., Appellants, v. OHIO STANDARD OIL CO. et al., Appellees.

No. 81-895.

Supreme Court of Ohio.

April 7, 1982.

Pees & Behal and Randall W. Pees, Columbus, for appellants.

Brown, Bemiller, Murray & McIntyre and John T. Brown, Mansfield, for appellees.

PER CURIAM.

Appellants set forth in their initial proposition of law that:

"A motorist whose lane is obstructed by a snowdrift is excused from complying with R.C. § 4511.25, the 'left of center' statute. * * * "

The issue before us here is whether defendants-appellees' motion for summary judgment was properly granted.

"Summary judgment is a procedural device to terminate litigation and to avoid a formal trial where there is nothing to try. It must be awarded with caution, resolving doubts and construing evidence against the moving party, and granted only when it appears from the evidentiary material that reasonable minds can reach only an adverse conclusion as to the party opposing the motion. Petroff v. Commercial Motor Freight, Inc. (1960), 82 Ohio Law Abs. 433 (165 N.E.2d 840); Horvath v. Fisher Foods, Inc. (1963), 93 Ohio Law Abs. 182 (194 N.E.2d 452); Norman v. Thomas Emery's Sons, Inc. (1966), 7 Ohio App.2d 41 (218 N.E.2d 480); Morris v. First Natl. Bank & Trust Co. (1970), 21 Ohio St.2d 25 (254 N.E.2d 683). A successful motion for summary judgment rests on the two-part foundation that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Kwait v. John David Management Co. (1974), 42 Ohio App.2d 63 (329 N.E.2d 702)." Vetovitz Bros., Inc., v. Kenny Constr. Co. (1978), 60 Ohio App.2d 331, 332, 397 N.E.2d 412.

To warrant a summary judgment in a tort action the trial court must properly conclude that:

" * * * (1) the defendant was not negligent, or (2) that the plaintiff has assumed the risk, or (3) that the plaintiff was contributorily negligent." (Emphasis sic.) Rainey v. Harshbarger (1963), 7 Ohio App.2d 260, 264, 220 N.E.2d 359.

The Court of Appeals found in appellees' favor in each instance stated above, though any one ground is sufficient to sustain the summary judgment.

Appellants' first proposition of law involves construction of R.C. 4511.25(A) (2). We note at the outset that the issue of comparative negligence was not raised below and is not properly before us now. R.C. 4511.25, in part, provides:

"(A) Upon all roadways of sufficient width, a vehicle or trackless trolley shall be driven upon the right half of the roadway, except as follows:

" * * *

"(2) When an obstruction exists making it necessary to drive to the left of the center of the highway; provided, any person so doing shall yield the right of way to all vehicles traveling in the proper direction upon the unobstructed portion of the highway within such distance as to constitute an immediate hazard."

This statute was enacted in its present form in 1975, and postdates Dibert v. Ross Pattern & Foundry Development Co. (1957), 105 Ohio App. 264, 152 N.E.2d 369, which was relied on by appellees and the Court of Appeals. The statute construed in Dibert, supra, excused driving on the left when the "right half of the roadway * * * (was) closed to traffic," and included no requirement that a car proceeding on the left yield to oncoming traffic. We agree with appellants that the General Assembly intended, in making the changes in the former statute, to permit a motorist to drive left of center when his lane is obstructed, as by a snowdrift. The motorist driving left of center must yield, however, to oncoming traffic, constituting an immediate hazard. In light of the record before us, Norris' failure to yield to Hetler was a violation of R.C. 4511.25(A)(2), and constituted contributory negligence as a matter of law. Summary judgment for appellees was appropriate on this ground, and we need not consider appellants' other propositions of law.

The judgment of the Court of Appeals is affirmed.

Judgment affirmed.

SWEENEY, Acting C. J., and VICTOR, LOCHER, HOLMES and KRUPANSKY, JJ., concur.

STEPHENSON, J., concurs in the judgment.

CLIFFORD F. BROWN, J., dissents.

STEPHENSON, J., of the Fourth Appellate District, sitting for FRANK D. CELEBREZZE, C. J.

VICTOR, J., of the Ninth Appellate District, sitting for WILLIAM B. BROWN, J.

CLIFFORD F. BROWN, Justice, dissenting.

The accident in question occurred the day after the infamous "Blizzard of '78." The majority has recognized that, under those unusual circumstances, plaintiff was justified in travelling left of center. ¹ They go on to conclude, however, that "Norris' failure to yield to Hetler was a violation of R.C. 4511.25(A)(2), and constitutes contributory negligence as a matter of law." However, only an unexcused failure to comply with a statute constituted negligence per se. Zehe v. Falkner (1971), 26 Ohio St.2d 258, 271 N.E.2d 276; Spaulding v. Waxler (1965), 2 Ohio St.2d 1, 205 N.E.2d 890. Plaintiff should have been given the opportunity to prove that his actions were excusable. The majority's conclusions not only invade the jury function but preclude recovery by any plaintiff who exercises his statutory right to cross left of center when confronted with an obstruction in his lane. I cannot agree with this reasoning and I therefore dissent.

R.C. 4511.25 imposes upon a person in the position of the plaintiff a duty to yield the right of way to an approaching vehicle. However, the statute does not specifically indicate what constitutes failure to "yield." If road conditions precluded plaintiff from moving completely off the road in order for defendant to pass, it is for the jury to determine whether the actions he did take constituted "failure to yield."

In my opinion, plaintiff fulfilled his statutory obligation to yield. Prior to seeing the approaching truck, plaintiff was travelling approximately 10-15 miles per hour. Upon discerning the danger of defendant's vehicle at the crest of the hill, plaintiff brought his vehicle to a stop where it rested until struck by the defendant. Plaintiff thus did everything possible to avoid a collision.

Moreover, because the plaintiff was not operating his vehicle in the defendant's lane "in a manner contrary to law", R.C. 4511.21 placed upon the defendant the duty to maintain an assured-clear-distance ahead.

The defendant's duty to exercise ordinary due care in maintaining an assured-clear-distance exists even when the vehicle in question is cresting a hill. Cerny v. Domer (1968), 13 Ohio St.2d 117, 235 N.E.2d 287. In that instance, a driver is negligent if he operates a vehicle "at a greater speed than will permit him to bring it to a stop within the distance between his motor vehicle and a discernible object obstructing his path or line of travel * * *." Smiley v. Arrow Spring Bed Co. (1941), 138 Ohio St. 81, 33 N.E.2d 3, paragraph two of the syllabus.

In the present case, plaintiff concedes that when he started into the northbound lane he was, or should have been, aware that a lawfully operated vehicle might be approaching the crest of the hill. However, he had no duty to anticipate that any approaching vehicle would be driven in an unlawful or unreasonable manner. Humphrey v. Dent (1980), 62 Ohio St.2d 273, 276, 405 N.E.2d 284; Trentman v. Cox (1928), 118 Ohio St. 247, 160 N.E. 715; paragraph two of the syllabus, and Norris v. Jones (1924), 110 Ohio St. 598, 144 N.E. 274, paragraph three of the syllabus.

The fact that the defendant was operating his truck at a speed of 35-40 m. p. h. in a 35 m. p. h. zone on the day after a blizzard on a street covered with snow and ice is certainly some evidence that he was not exercising ordinary care. Moreover, the plaintiff offered evidence of the overall treacherous road conditions including the fact that many of the roads in the area were either completely or partially closed. Even if defendant was within the posted speed limit a jury could have reasonably concluded that such speed was in excess of that which could be considered safe under the circumstances.

A further point must be emphasized. Plaintiff's duty to yield to defendant under R.C. 4511.25(A)(2) presupposes that defendant had the "right of way." A "right of way," however, may be lost if the driver is not operating his vehicle in "a lawful manner in the direction in which * * * he is moving." ² Just as a jury question existed as to whether defendant was travelling in a manner contrary to law, both the existence of a "right of way" in the defendant as well as a duty in the plaintiff to "yield the right of way" likewise presented jury questions. Reasonable minds could have differed on any or all of these points.

Merely because a collision occurs as a consequence of plaintiff's actions does not justify finding that the plaintiff is contributorily negligent as a matter of law. Humphrey v. Dent, supra. Even the fact that a plaintiff, in violation of a statute, drives upon a public highway which is closed to traffic, does not necessarily bar recovery. ³

Thus, although the law may presume negligence from a violation of a statute, the law does not, from that presumption alone, presume that such negligence was the proximate cause of the injury. Smith v. Zone Cabs (1939), 135 Ohio St. 415, 21 N.E.2d 336. The issue of proximate cause remains a question for jury determination. Schell v. DuBois (1916), 94 Ohio St. 93, 113 N.E. 664; Hine v. Eikler (1923), 19 Ohio App. 510.

Plaintiff was lawfully in the lane long before the defendant reached the point where the collision was inevitable. Moreover, the plaintiff offered expert testimony to the effect that at defendant's rate of speed it would have been impossible for him to avoid a collision with the plaintiff. In the face of these allegations, the questions of proximate cause and negligence on the part of the defendant motorist must be submitted to the jury. Hangen v. Hadfield (1939), 135 Ohio St. 281, 20 N.E.2d...