O'Brien v. Dep't of Transp., 2015-00785JD

CourtCourt of Claims of Ohio
Writing for the CourtDALE A. CRAWFORD JUDGE
Citation2022 Ohio 1026
Docket Number2015-00785JD
Decision Date16 February 2022


SEAN O'BRIEN Plaintiff


No. 2015-00785JD

Court of Claims of Ohio

February 16, 2022

Sent to S.C. Reporter 3/29/22

Holly True Shaver Magistrate Judge



{¶1} Before the Court are Plaintiffs February 5, 2021 objections to the magistrate's December 21, 2020 decision recommending judgment in favor of Defendant. For the reasons stated below, the Court finds that the magistrate properly determined the facts and appropriately applied the law.


{¶2} Plaintiff, Sean O'Brien, brought an action for negligence arising from an automobile collision that occurred on August 3, 2010 in Knox County, Ohio while he was a backseat passenger in Joseph Alexander's vehicle traveling southwest on State Route (SR) 95, a two-lane rural highway. The accident occurred at an intersection where SR 95, Mishey Road, and Old Mansfield Road meet (the intersection).

{¶3} Mishey Road runs east-west and intersects SR 95 from the east while Old Mansfield Road runs north-south and intersects Mishey Road from the south. Stop signs control traffic from both roads entering onto SR 95 while SR 95 is a through highway with a sharp curve. Southwest motorists, such as Alexander, must navigate a sharp curve to the right to stay on SR 95. If southwest motorists go straight through the curve, instead of following it, they will travel onto Old Mansfield Road. See Plaintiff's exhibit 42; Defendant's exhibits D, F, G, H and N.

{¶4} The posted speed limit on SR 95 was 55 mph. When traveling southwest on SR 95, motorists first encounter an intersection warning sign that shows Mishey Road


intersecting from the left and perpendicular to SR 95. See Defendant's exhibits C and N. Thereafter, two yellow, diamond-shaped horizontal alignment signs on both sides of SR 95 warned motorists of the impending curve; they depicted right-turn arrows below which were advisory speed limit signs stating 20 mph. See Defendant's exhibits D, E and N. A directional sign next advised motorists that Knox Lake, boat ramps, and a marina were straight ahead through the intersection on Old Mansfield Road. See Defendant's exhibits F, G, and N. Chevrons pointing to the right appeared ahead of the curve on the left-hand side of the road and continued through the curve. Id. In addition, two large, yellow arrow-boards faced motorists and pointed to the right. Id. A double-yellow line separated SR 95's two lanes and followed the curve to the right with a break at the intersection. The solid white edge line on the right side of SR 95 followed the curve to the right with no breaks.

{¶5} On the day of the accident, Alexander drove approximately 40 mph straight through the intersection south onto Old Mansfield Road instead of following SR 95 as it sharply curved to the right. His vehicle collided with another automobile, driven by Pamela Riggleman, traveling northeast on SR 95 as she attempted to turn onto Mishey Road. Plaintiff was ejected from the vehicle and sustained major injuries. Freddie Okulich, a disinterested and unbiased bystander, testified that, following the collision, Alexander was in hysterics and yelled "Look what I've done. I wasn't paying attention." Additionally, Okulich testified that Alexander said he was going "too fast for the turn" and that he "forgot about the turn."

{¶6} Plaintiff claims that Defendant was negligent in its placement of traffic signage in advance of the intersection, causing Alexander to misunderstand the nature of the intersection. Plaintiff contends Alexander's misunderstanding, induced by Defendant's negligence, ultimately led to the collision. On October 17, 2016, the case proceeded to trial on the issue of liability before a magistrate of this Court. At trial, both Plaintiff's traffic-engineering expert, Kimberly Nystrom, and Defendant's traffic-engineering expert, David


Holstein, testified that the 20-mph advisory speed limit was appropriate for the nature of the intersection. Additionally, the parties agreed that ODOT had no duty to redesign the intersection. Thus, Plaintiff's claims were solely based on ODOT's alleged failure to comply with the Ohio Manual of Uniform Traffic Control Devices (OMUTCD).

{¶7} Plaintiff presented multiple theories as to how Defendant's negligence was the proximate cause of his injuries. First, Plaintiff argues that Defendant's negligent placement of signs in advance of the intersection failed to properly warn Alexander that SR 95 southbound curved to the right, as opposed to continuing south onto Old Mansfield Road. Second, Plaintiff asserts that the topography of the road, including the hill that obscured the intersection, the slope of the roadway and the fact that Old Mansfield Road was visible in the distance, prevented Alexander from understanding that SR 95 curved to the right.

{¶8} Alexander recounted: "I came over the hill, and in my mind the road went straight, and I realized at some point that the road did curve and I knew I couldn't make the curve, so I went straight." Additionally, Officer Matthew Whims, the Ohio State Highway Patrolman that completed the traffic crash report for this collision, testified that there was no indication at the scene that Alexander attempted to make the curve, and stated that Alexander's driving contributed to the accident. Furthermore, Henry Lipian, Plaintiff's accident reconstructionist, conceded that, if Alexander intended to follow the curve, he was driving too fast to navigate that condition of roadway; however, he would have been able to observe that the route he was traveling on curved to the right if he had reduced his speed to the advisory speed.

{¶9} Following the trial, the magistrate recommended judgment in favor of Defendant. Plaintiff timely filed objections to the magistrate's September 1, 2017 decision recommending judgment in favor of Defendant, which this Court overruled and entered judgment in favor of Defendant. Thereafter, Plaintiff filed a timely appeal. The Tenth District Court of Appeals reversed the judgment and remanded the case for further


proceedings after finding that the magistrate had erred by limiting the testimony of Plaintiffs expert in human factors, William Vigilante, Ph.D.

{¶10} On October 22, 2019, the magistrate heard the complete testimony of Dr. Vigilante. Vigilante opined that Alexander bore no responsibility for the accident because the accident was caused by ODOT's failure to provide adequate positive guidance and remove misleading guidance. However, he also agreed that if Alexander had slowed his speed to the posted advisory speed at the hillcrest, then he would have been able to successfully navigate the intersection.

{¶11} Following the second trial, the magistrate recommended judgment in favor of Defendant after finding that Defendant did not violate the OMUTCD. Additionally, the magistrate found that the signage in place on the day of the accident adequately warned Alexander of the curve in SR 95 and was not the proximate cause of the accident. Plaintiff timely filed objections to the magistrate's December 21, 2020 decision.

Scope of Remand

{¶12} As a preliminary matter, Defendant argues that Plaintiff is not entitled to a new ruling on the objections previously raised and ruled on after the first trial because the scope of the remand was limited to hearing Plaintiffs human factors expert witness "express his opinion as to whether or not the signs along the road where this accident took place caused the driver to make a mistake * * *." See Defendant's March 12, 2021 Reply to Plaintiff's Objections, p. 1. Additionally, Defendant asserts the Court of Appeals set forth findings in its February 28, 2019 decision based on the evidence presented at the first trial which should now be considered the "law of the case". See id. at p. 6. Specifically, Defendant contends that "Plaintiff's own accident reconstructionist admitted Plaintiff's driver was negligent in going too fast for the curve - a finding of the Court of Appeals which is now the law of the case." Id. Upon review, the Court disagrees.

{¶13} The doctrine of "the law of the case" functions to compel trial courts to follow the reviewing court's decisions "on the legal questions involved for all subsequent


proceedings in the case." Nolan v. Nolan, 11 Ohio St.3d 1, 3, 462 N.E.3d 234 (1984). Accordingly, "where at a rehearing following remand a trial court is confronted with substantially the same facts and issues as were involved in the prior appeal, the court is bound to adhere to the appellate court's determination of the applicable law." Id. Although the rule is considered "necessary to ensure consistency of results in a case, to avoid endless litigation by settling the issues, and to preserve the structure of superior and inferior courts as designed by the Ohio Constitution", "[t]he doctrine is considered to be a rule of practice rather than a binding rule of substantive law and will not be applied so as to achieve unjust results." Id.

{¶14} When remanding the case for further proceedings, the Tenth District Court of Appeals stated, in relevant part:

[W]e reverse and remand this matter to allow [Sean] O'Brien to present expert human factors testimony as to causation; that is, whether the signage ODOT installed for the intersection caused the driver of the vehicle in which O'Brien was a passenger to make the mistake that resulted in the collision and O'Brien's ensuing injuries.

O'Brien v. ODOT, 10th Dist. Franklin No. 18AP-231, 2019-Ohio-724, ¶ 1. Specifically, the Court of Appeals was "persuaded that Dr. Vigilante's testimony about human factors, including but not limited to working memory, long-term memory, positive guidance and perception/reaction time, was relevant to the issue of causation in this matter." Id. at ¶ 65. Moreover, the Court of Appeals observed that:


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