John Senko, Administrator of the Estate of Charlotte Senko v. Jeanette Molitoris [by City of Parma, 81-LW-0600

• Decision Date: 15 October 1981
• Docket Number: 81-LW-0600,43381
• Parties: JOHN SENKO, ADMINISTRATOR OF THE ESTATE OF CHARLOTTE SENKO, ET AL. APPELLEES, v. JEANETTE MOLITORIS, ET AL. [by City of Parma, defendant-appellant] APPELLANT.
• Court: Ohio Court of Appeals

JOHN SENKO, ADMINISTRATOR OF THE ESTATE OF CHARLOTTE SENKO, ET AL. APPELLEES, v. JEANETTE MOLITORIS, ET AL. [by City of Parma defendant-appellant] APPELLANT.

No. 43381.

81-LW-0600 (8th)

Court of Appeals of Ohio, Eighth District Cuyahoga

October 15, 1981

APPEAL FROM COMMON PLEAS COURT No. 963,777.

For plaintiffs-appellees: Julian Cohen.

For defendant-appellant: Salvatore P. Jeffries.

For defendant-appellant City of Parma: Wm. C. Ailes, 100 East Gay St., Columbus, Ohio 4321.

JOURNAL ENTRY

STILIMAN J.

This cause came on to be heard upon the pleading and the transcript of the evidence and record in the Common Pleas Court, and was argued by counsel; on consideration whereof the court certifies that in its opinion substantial justice has not been done the party complaining, as shown by the record of the proceedings and judgment under review, and judgment of said Common Pleas Court is reversed. Each assignment of error was reviewed by the court and upon review the following disposition made:

The City of Parma, defendant-appellant herein (appellant), brings this appeal from a judgment of the Cuyahoga County Common Pleas Court in favor of plaintiff-appellee, John Senko (appellee). Appellee filed suit against appellant and six other defendants on December 7, 1976, alleging the negligence of all defendants proximately caused an automobile accident resulting in the death of appellee's wife and their two unborn children as well as injuries to appellee.®1¯

Footnote 1 Appellee brought suit as an individual and also as administrator of the estate of his wife and of the estate of the two unborn girls. Also named as defendants were the driver of the other car, Jeanette Molitoris, her husband, the City of North Royalton, the County of Cuyahoga, the Cuyahoga County Commissioners and the Cuyahoga County Engineer. All defendants other than Jeanette Molitoris and appellant were dismissed prior to sending the case to the jury, as was the cause of the action on behalf of the two unborn children. The trial court directed a verdict in favor of appelles against defendant Jeanette Molitoris on the issue of liability, and submitted the case to the jury on the issue of damages only with respect to her, and on the issue of liability and damages with respect to appellant.

Appellee alleged appellant negligently failed to properly design, maintain, repair and keep open and free from nuisance, the intersection of Ridge and Sprague Roads located within the City of Parma.

The evidence established the accident occurred at said intersection on December 7, 1974, approximately one month after the newly constructed intersection had been opened to traffic. The accident occurred as appellee's northbound vehicle, which had entered the intersection from Ridge Rd., was struck from the right by defendant Jeanette Molitoris' westbound vehicle as it entered the intersection from Sprague Rd. Although the County had erected a four foot wide "STOP" sign on the north side of Sprague Rd. at its entrance to the intersection with Ridge Rd., and had also erected a "Stop Ahead" sign 500 feet to the east of the stop sign, defendant Molitoris failed to stop or slow her vehicle upon entering the inter section. (Tr. 339-351; Joint Exhibits I and II) No traffic control device of any kind controlled traffic entering the intersection from Ridge Rd.

Much evidence was adduced on behalf of appellee concerning the engineering and design of the intersection and the need for traffic signals at the intersection, as opposed to other traffic control devices, such as the stop signs which were in place on the day of the accident.

On December 7, 1970, appellant, the City of Parma, passed Ordinance No. 436-70 authorizing an agreement between Parma and the County for the extension of Sprague Rd. The agreement placed upon appellant the duty of placing and maintaining all traffic control devices at the intersection in conformity with the Ohio Manual of Uniform Traffic Control Devices (Traffic Manual). (Tr. 411; Plaintiff's Exh. 17)

Evidence was presented by appellee relative to appellant's knowledge and understanding of the need for traffic control signals (as opposed to signs) from the earliest stages of planning through the opening of the intersection to traffic on November 6, 1974. (Tr. 223-225, 253-274, 356, 371-372, 400-405; Plaintiff's Exhibits 20, 22, 26) Further, Parma's Mayor Petruska testified he felt the intersection was not ready to be opened on November 6, 1974 due to the absence of traffic control signals. (Tr. 371-372)

Robert J. Kelly, a traffic consultant,®2¯ testified as a witness on behalf of appellee, and David J. Lepisto, also a traffic consultant, testified as an expert witness on behalf of defendant, Jeanette Molitoris. Both witnesses testified the two-way stop signs in place at the intersection on the day of the accident failed to meet the minimum safety standard required by such an intersection. (Tr. 216-220, 232-233, 502, 508)®3¯ Both experts testified the minimum required to ensure reasonable safety at the intersection were stop signs with overhead flashing beacons. (Tr. 220, 508) Mr. Lepisto emphasized three factor the geometrics of the roadway, its sight distance restrictions and prevailing weather conditions, as a basis for his opinion,®4¯ while Mr. Kelly emphasized the freeway-like size and restricted access nature of the roadway as a basis for his conclusion the intersection was unsafe on the day of the accident.®5¯ Mr. Kelly testified the stop sign utilized to control traffic on Sprague Rd. at the intersection was unacceptable because no prudent motorist would expect to be confronted by the situation presented by the Sprague Rd.-Ridge Rd. intersection. (Tr. 508-510)

Footnote 2 A traffic consultant is involved in the design, installation and maintenance of traffic control devices on streets and highways. (Tr. 471-472)

Footnote 3 Richard Sebesta, a traffic engineer for the Cuyahoga County Engineer's Office, testified the two-way stop sign in place on the day of the accident was in conformity with the Traffic Manual and was warranted at the intersection. He further testified the 48-inch stop sign exceeded the minimum requirement imposed by the Revised Code for roadways entering state highways. (Tr. 444-448, 451)

Footnote 4 By geometrics, Mr. Lepisto meant the gradual curve at the intersection, the askew angle of the intersection, and the elevation of the roadway. By sight distance restrictions, he was referring to a house and shrubs located on the southeast corner of the intersection and the downgrade of the northbound lanes of Ridge Rd. The weather conditions referred to high piles of snow on either side of Sprague Rd. (Tr. 213-215)

Footnote 5 Mr. Kelly testified wider lanes encourage higher speeds and give the road the appearance of a higher speed facility. (Tr. 486-494)

On the day of the accident, no lane markings were on the roadway, and a stop sign was present approximately six to nine feet from the curb of the westbound lane of Sprague Rd. The stop sign was approximately 45 feet to the right of a motorist driving in the center westbound lane, the lane in which defendant Molitoris was travelling.®6¯ (Tr. 481, 506)

Footnote 6 Mr. Kelly testified 45 feet was an unacceptable distance for the stop sign to be placed from a motorist. (Tr. 507)

Upon the evidence, the court directed a verdict against defendant Molitoris on the issue of liability. The jury found both defendant Molitoris and appellant liable to appellee individually and as administrator of the estate of his wife, Charlotte Senko. From the jury's verdict and the judgment of the trial court, appellant has brought the instant appeal, presenting the following as error for review:

1. THE COURT ERRED IN OVERRULING THE MOTION OF THE DEFENDANT-APPELLANT FOR SUMMARY JUDGMENT. MOTION OF DEFENDANT-APPELLANT, CITY OF PARMA FOR JUDGMENT ON THE OPENING STATEMENT AND PLEADINGS, MOTION OF DEFENDANT-APPELLANT, CITY OF PARMA FOR JUDGMENT AT THE CLOSE OF PLAINTIFF'S CASE AND MOTION OF DEFENDANT-APPELLANT, CITY OF PARMA FOR JUDGMENT AT THE CLOSE OF THE CASE.

2. THE COURT ERRED IN OVERRULING THE OBJECTION OF THEDEFENDANT-APPELLANT, CITY OF PARMA TO THE INTRODUCTION OF TESTIMONY OF EXPERTS FOR THE PLAINTIFFS-APPELLEES AND EXPERTS FOR THE DEFENDANT, JEANETTE MOLITORIS.

3. THE COURT ERRED IN GIVING A SPECIAL INSTRUCTION TO THE JURY IN RESPONSE TO A QUESTION SUBMITTED TO THE COURT DURING DELIBERATION BY THE JURY.

In the first assignment of error, appellant contends certain motions for judgment in its favor should have been granted. These motions include a motion for summary judgment and three separate motions for a directed verdict.®7¯ The granting of motions for summary judgment under Civ. R. 56 and motions for directed verdict under Civ. R. 50(A) requires that (1) no material issue of fact remains, and (2) the moving party is entitled to judgment as a matter of law.®8¯

Footnote 7 At the close of appellee's opening statement, appellant orally moved for judgment on the opening statement, on the pleadings and on the answers to interrogatories. (Tr. 71) This motion will be treated as a motion for directed verdict made after the opening statement under Civ. R. 50(A)(1), since a motion for judgment on the pleadings must be made prior to trial. Civ. R. 12(C)

Footnote 8 Civ. R. 50(A)(4) provides for the granting of a motion for directed verdict as follows:

"When a motion for a directed verdict has been properly made, and the trial court, after construing the evidence most strongly in favor of the party against whom the motion is directed, finds that upon any determinative issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse

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