Laurie A. Zupancic v. Champion Distribution Services
| Decision Date | 28 February 1996 |
| Docket Number | 96-LW-1059,17330 |
| Parties | LAURIE A. ZUPANCIC, Appellant v. CHAMPION DISTRIBUTION SERVICES, et al., Appellees C.A. |
| Court | Ohio Court of Appeals |
APPEAL FROM JUDGMENT ENTERED IN THE COMMON PLEAS COURT COUNTY OF SUMMIT, OHIO CASE NO. 92 11 4330.
This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made:
DECISION
Appellant, Laurie Zupancic, appeals from the unanimous jury verdict in favor of defendants-appellees, Champion Distribution Services and Lewis Harkness. We affirm.
On the morning of June 30, 1992, Lewis Harkness, a commercial truck driver for Champion Distribution Services, was scheduled to unload a shipment from Trenton, Florida at the Handy Andy store on Brittain Road in Akron, Ohio. Harkness, an Arkansas resident unfamiliar with the area, asked for directions from an employee of Morgan's Truck Stop. Following the directions given, Harkness traveled north on Brittain Road to the Goodyear Boulevard intersection. At the intersection, Harkness was forced to stop at a red light on an uphill grade. At the green light, Harkness attempted to continue northward through the intersection. The weight of the load, combined with the force of gravity, caused the semi tractor-trailer's drive shaft to break as it entered the Goodyear Boulevard intersection, completely disabling Harkness' vehicle.
Determining it was unsafe to leave the disabled truck in the intersection, Harkness maneuvered it backwards, rolling downhill to a flat, straight section of Brittain Road approximately eighty-four (84) feet north of Preston Avenue. Harkness parked the truck against the curb of the northbound lane of Brittain Road and claims he turned on his hazard warning signals. He then placed three warning reflectors in the roadway; one ten (10) feet in front of the truck, one twenty-five (25) feet behind the truck, and one approximately seventy-five (75) feet behind the truck. These warning reflectors were two large, circular red reflectors mounted one on top of the other on a metal base, approximately seven (7) inches high. Harkness then walked to a nearby store to call a repair service. According to Harkness, it was approximately 8:00 a.m. when the truck was secured on Brittain Road.
Harkness called Clevinger's Truck Service for roadside repairs and returned to the truck to wait for a mechanic. At approximately 9:30 a.m. a mechanic from Clevinger's arrived. Harkness testified that during this time traffic on Brittain Road was heavy. Harkness also testified the mechanic removed the drive shaft from the disabled truck, stated it could be repaired shortly, and drove Harkness to Morgan's Truck Stop to wait while repairs were made. Harkness had been at Morgan's approximately thirty (30) to forty (40) minutes when he was informed his truck had been involved in an accident.
At approximately 11:30 a.m. on June 30, 1992, Laurie Zupancic was travelling north on Brittain Road in her Ford Ranger pickup truck. Zupancic drove into the rear of Harkness' disabled semi tractor-trailer and sustained head and neck injuries.
On November 19, 1992, Zupancic filed a complaint against the defendants-appellees for negligence, alleging Harkness failed to adequately warn northbound traffic of the hazard created by the disabled semi tractor-trailer. After one hour of deliberation, the jury returned a unanimous verdict for the defendants. The eight jury members answered "No" to Interrogatory (A), which asked, "Were the defendants negligent and did their negligence directly and proximately cause any injury to the plaintiff?" Zupancic's motion for a new trial was overruled.
Zupancic presents three assignments of error: (1) the verdict and judgment are contrary to law and against the manifest weight of the evidence, (2) the trial court erred in failing to properly instruct the jury, and (3) the trial court abused its discretion in overruling her motion for a new trial. We overrule each of these assignments.
A.
In her first assignment of error, Zupancic argues Harkness was negligent as a matter of law because he failed to place the proper warning devices in the roadway at the proper distances from his disabled truck. Zupancic contends Harkness was required to place three orange, bidirectional emergency reflective triangles in the roadway rather than the three red, round warning reflectors he actually placed. See Sections 393.95(f) and 392.22(b)(2)(ii), Title 49, Code of Federal Regulations (C.F.). Zupancic also contends Harkness was required to place the emergency triangles at distances conforming with Sections 393.22(b)(1) and 393.22(b)(2)(ii) and (iv), Title 49, C.F.R.(fn1) Failure to do so, she argues, is negligence per se. Finally, Zupancic claims Harkness was negligent as a matter of law in failing to comply with R.C. 4513.28(F). R.C. 4513.28 provides in part:
Zupancic is correct that a violation of R.C. 4513.28 constitutes negligence per se. Schalk v. Spreckelmeier (1971), 27 Ohio App.2d 210. Negligence per se is the violation of a legislative enactment, by one whose duty it as to obey it, commanding or prohibiting for the safety of others the doing of a specific act. Reed v. Molnar (1981), 67 Ohio St.2d 76, 79, quoting Eisenhuth v. Moneyhon (1954), 161 Ohio St. 367, paragraph three of the syllabus. However, negligence per se does not equal liability per se. Perkins v. Ohio Dept. of Transp. (1989), 65 Ohio App.3d 487, 495, quoting Merchant Mut. Ins. Co. v. Baker (1984), 15 Ohio St.3d 316, 318. That the law may presume negligence from a person's violation of a statute or rule does not mean that the law presumes such negligence was the proximate cause of the plaintiff's injury. Id.
At trial, Zupancic presented two witnesses who testified they had near collisions with Harkness' truck and they did not see either the warning reflectors he placed or his hazard signals flashing. On cross examination the witnesses admitted to being Zupancic's close friends, one of the two having been Zupancic's friend since childhood. Zupancic also presented the testimony of expert witness Carmen Daecher. Daecher testified that the view of the truck, travelling northward on Brittain Road, was obstructed by tree branches and a slight curve in the road. He testified the back end of Harkness' truck was not discernible from a point on Brittain Road five hundred and twenty-seven (527) feet south of the place where the disabled truck was parked, but it was visible at four hundred (400) feet. Thus, Daecher opined, Section 392.22(b)(2)(iv), Title 49, C.F.R., concerning obstructions to view, applied to Harkness' situation. Daecher testified Harkness placed improper warning reflectors at improper distances from his truck in violation of Section 392.22(b)(2)(iv) and R.C. 4513.28(F).
Finally, Zupancic testified she first noticed the truck just past Hampton Road, which Daecher testified he measured as approximately four hundred and thirty-eight (438) feet from the back of Harkness' truck. Although she noticed the truck, Zupancic stated she did not realize it was stopped and thought it was slowly laboring uphill to the Goodyear Boulevard intersection. Zupancic admitted on cross-examination that (1) there were no other vehicles between her's and the disabled truck, (2) it was a bright, sunny day, (3) she is very familiar with Brittain Road and has witnessed trucks slowly moving up the hill on other occasions, and (4) she was travelling approximately thirty (30) m.p.h. but made no attempt to slow down upon noticing the truck.
Harkness presented evidence that Zupancic's vehicle left no skid marks, circumstantially showing she did not attempt to break prior to hitting his truck. He also presented evidence that Zupancic ran over the two warning reflectors placed behind his truck. Evidence was introduced that no other vehicles hit Harkness' truck although it was parked on Brittain Road throughout morning rush hour. Harkness also presented testimony, elicited from Zupancic's expert on cross-examination, that a vehicle traveling thirty-five (35) m.p.h., at four hundred (400) feet from an object, would have eight (8) seconds of visual contact before impact. Daecher further testified normal human reaction time is approximately one and one-half (1 1/2) seconds, and that to bring a vehicle traveling thirty-five (35) m.p.h. to a complete stop one would need approximately one hundred and forty (140) feet of distance. Daecher also admitted the following:
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