Hines v. City of Cleveland
| Docket Number | 112218 |
| Decision Date | 20 July 2023 |
| Parties | TERAI C. HINES, ET AL., Plaintiffs-Appellees, v. CITY OF CLEVELAND, ET AL., Defendants-Appellants. |
| Court | Ohio Court of Appeals |
Nager Romaine & Schneiberg Co., LPA, and Vincent D. Scebbi, for appellees.
Mark D. Griffin, City of Cleveland Director of Law, and Affan Ali and James R. Russell, Jr., Assistant Directors of Law, for appellant.
JOURNAL ENTRY AND OPINION
{¶ 1} The city of Cleveland appeals the denial of the benefit of immunity from liability under R.C. Chapter 2744 in an action filed by Terai Hines, the driver of a vehicle involved in a collision with a city-operated garbage truck and Levy Hicks III,[1] a passenger in Hines's vehicle (collectively "plaintiffs"). Joseph Zellous[2] drove the garbage truck at the time of the collision. For the following reasons, the trial court's decision is reversed, and judgment is hereby entered in favor of the city based on the inapplicability of the exception to immunity under R.C. 2744.02(B)(1), which provides an exception to immunity for liability if the plaintiff can demonstrate the negligent operation of a motor vehicle.
{¶ 2} The allegations in the complaint are sparse. According to the complaint, Zellous "failed to control his vehicle and struck" the vehicle plaintiffs occupied, a four-door sedan. According to the parties' description of events, Zellous was stopped at a "T" intersection preparing to turn right onto a cross street. Both streets were narrow, two-lane streets (one lane of travel in each direction). Zellous maneuvered the truck with the driver's side tires over the centerline of the street as he prepared his turn, which required more space given the size of the truck. This left a gap between the truck and the curb. Zellous waited for the cross traffic to clear before initiating his right turn. It is undisputed that the truck was adorned with the conspicuous warning that following drivers should use caution at intersections due to the propensity for the truck to make wide turns in either direction.
{¶ 3} While Zellous was stopped, and unbeknownst to him, Hines proceeded to pass the truck on the right, filling the gap between the curb and the garbage truck. There is no evidence that Hines was aware of which direction the truck would be turning. Further, neither Hines nor Hicks saw or could verify whether the garbage truck's turn signals were activated, demonstrating that Hines did not rely on the truck's turn signal as an indication of Zellous's desired path, which could only be turning left or right.
{¶ 4} Predictably, as Zellous commenced his right turn, the two vehicles collided because Hines's vehicle was in the gap Zellous needed to turn onto the cross street. The mechanical arm that picks up garbage bins struck the driver side, front quarter panel of Hines's vehicle.
{¶ 5} According to the plaintiffs, Zellous was negligent in the way he conducted the wide right turn, which everyone agrees was necessary to successful navigation of the tight intersection with the large truck. During Zellous's deposition, he conceded that a commercial driver's license manual ("CDL manual") may have advised a different method to conduct a wide right turn, in which the truck keeps the rear of the vehicle as close to the curb as possible angling left across, but entirely within, the lane of travel before commencing a wide-swing right turn that begins by going left (which logically would cause the truck to veer into the oncoming lane on the cross street to complete the turn). Zellous could not verify the contents of the manual, and the plaintiffs did not introduce the CDL manual through any witness or expert testimony to establish a standard of care separate from statutory or common law.
{¶ 6} Nonetheless, according to the plaintiffs, Zellous breached his duty by leaving a gap between his truck and the curb by straddling the centerline of the terminating two-lane street, and as a result of that conclusion, there are genuine issues of fact necessitating a trial under Civ.R. 56. The trial court agreed with their assessment.
{¶ 7} There is no dispute that the city is generally immune from liability based on the allegations advanced. That liability is removed if the plaintiffs can demonstrate the applicability of R.C. 2744.02(B)(1): "political subdivisions are liable for injury, death, or loss to person or property caused by the negligent operation of any motor vehicle by their employees when the employees are engaged within the scope of their employment and authority." Under that exception to the general grant of immunity, as is pertinent to the issues advanced in this appeal, a plaintiff must allege that the damages caused by the employee were a result of a negligent act of an employee. Garmback v. Cleveland, 8th Dist. Cuyahoga No. 110295, 2022-Ohio-1490, ¶ 26, citing Riveredge Dentistry Partnership v. Cleveland, 8th Dist. Cuyahoga No. 110275, 2021-Ohio-3817, ¶ 32; William v. Glouster, 2012-Ohio-1283, 864 N.E.2d 102, ¶ 17 (4th Dist.); and Gabel v. Miami E. School Bd., 169 Ohio App.3d 609, 2006-Ohio-5963, 864 N.E.2d 102, ¶ 39-40 (2d Dist.).
{¶ 8} "Actionable negligence requires a showing of a duty, a breach of that duty and an injury proximately resulting" therefrom. Johnson v. Greater Cleveland Regional Transit Auth., 2021-Ohio-938, 171 N.E.3d 422, ¶ 65 (8th Dist), citing Menifee v. Ohio Welding Prods., Inc., 15 Ohio St.3d 75, 77, 472 N.E.2d 707 (1984). The element of duty "may be established by common law, by legislative enactment or by the circumstances of a given case." Id., citing Schmitz v. NCAA, 2016-Ohio-8041, 67 N.E.3d 852, ¶ 48 (8th Dist.), and Chambers v. St. Mary's School, 82 Ohio St.3d 563, 565, 697 N.E.2d 198 (1998). Typically, the duty is established through Ohio's vehicular traffic laws. It is "[o]nly after it has been found that the vehicle is not proceeding in a lawful manner, by violating a law or ordinance, [that] consideration of the driver's common-law duty to use ordinary care [comes] into play." Lydic v. Earnest, 7th Dist. Mahoning No. 02 CA 125, 2004-Ohio-3194, ¶ 2.
{¶ 9} At the summary-judgment stages, a plaintiff seeking to demonstrate the existence of an exception to immunity need not prove negligence. Typically, a plaintiff need only demonstrate a genuine issue of material fact as to whether the political subdivision employee, acting in the course and scope of their employment, was negligent in operating any motor vehicle. See Johnson; Figueroa v. Greater Cleveland Regional Transit Auth., 8th Dist. Cuyahoga No. 110069, 2021-Ohio-2268, ¶ 20-21. The existence of a duty, however, is a legal question, to be resolved under the de novo standard of review. Mussivand v. David, 45 Ohio St.3d 314, 318, 544 N.E.2d 265 (1989).
{¶ 10} The plaintiffs claim that Zellous violated his duty as established under R.C. 4511.36(A)(1), as demonstrated through the cross-examination pertaining to the CDL manual. Ohio law requires vehicles to stay "as close as practicable to the right-hand curb or edge of the roadway" when approaching and making a right-hand turn. Id. The plaintiffs maintain that there is a question of credibility based on Zellous's lack of knowledge of the CDL manual because Zellous's method of not closing the gap between the curb and his truck permitted Hines to proceed as she did.
{¶ 11} That argument is misplaced for two reasons. Credibility of a witness's testimony is not an issue to be considered or addressed under Civ.R. 56. Oko v. Cleveland Div. of Police, 8th Dist. Cuyahoga No. 110025, 2021-Ohio-2931, ¶ 21. Further, there is no evidence in this record demonstrating that the CDL manual creates an actionable standard of care under Ohio law. The plaintiffs identified R.C. 4511.36(A)(1) as the controlling statute for this claim; however, that subdivision does not rigidly mandate any particular method of making right turns. The standard of care, for conducting a right turn as close to the curb or edge of the roadway, is one of practicability.
{¶ 12} Ohio law establishes a "preferential status" for the vehicle with the right-of-way, and that status determines the standard of care owed. Johnson, 2021-Ohio-938, 171 N.E.3d 422, at ¶ 71, citing Anderson v. Schmidt, 8th Dist. Cuyahoga No. 99084, 2013-Ohio-3524, ¶ 22, and Deming v Osinski, 21 Ohio App.2d 89, 255 N.E.2d 279 (11th Dist.1969), affirmed, 24 Ohio St.2d 179, 265 N.E.2d 554 (1970); see also Pierce v. Vanbibber, 4th Dist. Scioto No. 99 CA 2639, 2000 Ohio App. LEXIS 3210, 7 (June 30, 2000). "Right-of-way" is broadly defined as the "right of a vehicle, streetcar, trackless trolley, or pedestrian to proceed uninterruptedly in a lawful manner in the direction in which it or the individual is moving in preference to another vehicle, streetcar, trackless trolley, or pedestrian approaching from a different direction into its or the individual's path." (Emphasis added.) R.C. 4511.01(UU)(1).[3] The driver with the right-of-way "bears no duty" to yield, avoid, or even look for other drivers who violate that right-of-way. (Emphasis added.) Ramos v. Kalfas, 8th Dist. Cuyahoga No. 64806, 1994 Ohio App. LEXIS 2171, 17-18 (May 19, 1994), see also Johnson at ¶ 71. Any driver of a vehicle who is lawfully proceeding in their right-of-way "has the right to assume other drivers will obey any laws requiring them to yield the right of way and has no duty to watch for approaching vehicles that may threaten to violate the right of way." (Emphasis added.) Johnson, citing Anderson at ¶ 24, McCullough v. Youngstown City School Dist., 2019-Ohio-3965, 145 N.E.3d 996, ¶ 46 (7th Dist.), Lydic v. Earnest, 7th Dist....
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