Gordon Bowcott v. Action Door Co.

Decision Date22 November 1989
Docket Number89-LW-3895,56261
PartiesGordon BOWCOTT, Plaintiff-Appellant, v. ACTION DOOR CO., et al., Defendant-Appellees.
CourtOhio Court of Appeals

Civil Appeal from Court of Common Pleas, Case No. 119,203.

Salvatore P. Jeffries, Cleveland, for plaintiff-appellant.

William A. Viscomi, Cleveland, for defendant-appellants.

JOURNAL ENTRY and OPINION

PATTON Presiding Judge.

Plaintiff Gordon Bowcott appeals from a summary judgment rendered in favor of co-defendant Action Door Co. and its employee, Thomas Norman. Plaintiff had sought damages for injuries he sustained when his vehicle collided with a company van driven by Norman. The trial court granted defendants' motion for summary judgment concluding that plaintiff's comparative negligence was greater than the combined negligence of the defendants. Plaintiff's two assigned errors contest that judgment.

Norman was driving the company van to work during the morning rush hour on Interstate 480 in Brook Park, Ohio. A timing belt malfunctioned, causing the van to lose power. Because of the heavy traffic, Norman was unable to steer onto the road shoulder. The van coasted to a stop in the second lane from the berm surrounding the concrete center divider of the interstate. Norman activated his emergency lights, exited the van and began directing traffic away from the stalled van.

Plaintiff was traveling behind another vehicle in the same lane as the stalled van. When the vehicle in front of him changed lanes, plaintiff was one hundred to one hundred fifty feet from the van. He was traveling fifty to fifty-five miles per hour. Plaintiff thought the van was moving, then realized it was not. He applied his brakes just seconds before crashing into the van. Plaintiff denied seeing Norman waving off oncoming vehicles and seeing any emergency flashers on the van.

Plaintiff's assigned errors are interrelated. He concedes that he was negligent in failing to maintain an assured clear distance.®1¯ However, he contends that the trial court erred by concluding that Norman was not negligent in failing to place warning flags around the van.®2¯ Assuming that the failure to place warning flags constituted negligence per se, plaintiff maintains that issues of fact exist as to proximate causation and proportionment of negligence.

A violation of R.C. 4513.28(D) is negligence per se. Schalk v. Spreckelmeier (1971), 27 Ohio App.2d 210. In some circumstances, compliance with a statutory duty may be impossible and the failure to carry out a statutorily defined duty may be legally excused. Bush v. Harvey Transfer Co. (1946), 146 Ohio St. 657, paragraph two of the syllabus. Whether compliance with a highway safety statute was impossible in a particular case is ordinarily a question of fact for the jury. Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St.3d 35, paragraph one of the syllabus; Francis v. Bieber (1967), 10 Ohio St.2d 65.

In Smiddy, the driver of a disabled van maintained that it was impossible to set out warning flags since he had been stopped for only one minute. The court held that impossibility of compliance under those circumstances was a question upon which reasonable minds could differ. Id., at 37.

By his own admission, Norman had about ten minutes during which he could set out the warning flags required by R.C. 4513.28(D). Defendants, therefore, do not argue impossibility as a legal excuse. Instead, they maintain that plaintiff's negligence in failing to maintain an assured clear distance exceeded their combined negligence.

Summary judgment may be granted to defendants in a negligence suit where, after construing the undisputed evidence most strongly in favor of plaintiff, a reasonable person could only conclude that plaintiff's negligence was greater than the negligence of the defendants. Mitchell v. Ross (1984), 14 Ohio App.3d 75; Collier v. Northland Swim Club (1987), 35 Ohio App.3d 35, 39.

In Smiddy, supra, the court held that a van stopped on a highway in a driver's path during daylight hours is, in...

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