Mencini v. Greater Cleveland Reg'l Transit Auth.
| Docket Number | 112032 |
| Decision Date | 06 July 2023 |
| Parties | ANTHONY MENCINI, ET AL., Plaintiffs-Appellees, v. GREATER CLEVELAND REGIONAL TRANSIT AUTHORITY, ET AL., Defendants-Appellants. |
| Court | Ohio Court of Appeals |
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-21-951009
Kalish Law Firm, Alexander B. Reich, and D. Scott Kalish, for appellees.
Janet E. Burney, General Counsel - Deputy General Manager for Legal Affairs, and Brian R. Gutkowski, Associate Counsel II, for appellants.
JOURNAL ENTRY AND OPINION
{¶ 1}Defendants-appellants Greater Cleveland Regional Transit Authority ("RTA") and its employee John Tyson (collectively "appellants") appeal from a judgment of the Cuyahoga County Court of Common Pleas that denied appellants' motion for summary judgment based on political subdivision immunity. Plaintiffs-appellees Anthony Mencini and his wife Samantha Mencini (collectively "appellees" or "Mencinis") filed a complaint against appellants, claiming they were injured in a collision between their vehicle and an RTA bus operated by Tyson on Community College Avenue. This stretch of Community College Avenue has a lane for vehicular travel on the left side of the road and a bike lane on the right side. Both vehicles had been traveling eastbound in the left-side lane. When Anthony attempted to turn right into a driveway on the right side of the road, he collided with the RTA bus, which had been traveling behind the Mencinis' vehicle but moved to the bike lane before the collision.
{¶ 2}As we explain in the following, RTA is entitled to immunity unless Tyson acted negligently in operating the bus and Tyson is entitled to immunity unless he acted in a wanton or reckless manner. Appellants claim that Anthony was solely at fault for causing the collision because he failed to activate his right-turn signal when he attempted to turn right, and also violated various other traffic statutes and ordinances. Appellees argue that triable issues of fact exist regarding whether Tyson was negligent in failing to yield and improperly passing their vehicle on the right. Having reviewed the record and applicable law, we affirm the trial court's decision denying summary judgment regarding RTA but reverse its decision regarding Tyson.
{¶ 3} While Anthony was not cited for any traffic violations appellants claim in their motion for summary judgment that Anthony violated (1) R.C. 4511.139, which requires a driver to activate a turn signal at least one hundred feet before commencing a turn; and (2) sections 431.08(b) and 431.11(a) of Cleveland Codified Ordinances (C.C.O.), which appellants argue require a motorist to turn into a private driveway such as Tri-C Metro's parking lot from the bike lane rather than from the left-hand lane. Appellants also assert that a bus driver is permitted to travel in a bike lane to drop off passengers and Tyson was in the bike lane to drop off a passenger. Appellants in addition argue that Anthony violated R.C. 4511.21(A), the assured-clear-distance statute, and that Tyson was permitted to pass on the right of the Mencinis' vehicle pursuant to R.C. 4511.28, which governs the overtaking and passing upon the right of another vehicle. Appellants additionally argue that because a passenger had requested to be dropped off, Tyson's bus had the right of way and a vehicle with the right of way has a "preferential status" with a right to proceed uninterruptedly.
{¶ 4} Appellants attached to its motion an expert report and an affidavit from Hank Lipian of Introtech. Under the heading of "CRASH REPORT," the expert referenced an incident report prepared by the "Greater Cleveland Regional Transit Authority Police Agency" and noted that in the report, the incident was listed as a two-vehicle crash with the bus being the vehicle in error. The expert also noted that the police investigator coded the contributing circumstances for the incident as the bus's "Improper Passing." The expert, however, concluded that Anthony alone caused the collusion by (1) failing to signal the right turn, (2) failing to turn from the bike lane into the Tri-C parking lot driveway, and (3) turning his vehicle into the bus without paying attention to his surroundings.
{¶ 5} Appellees opposed appellants' motion for summary judgment, asserting that appellants are not entitled to summary judgment because there is a question of fact regarding whether Tyson was negligent in his operation of the bus. They assert that that RTA's own expert acknowledged that RTA's own investigator found the "contributing circumstances" for the collision to be the bus driver's improper passing.
{¶ 6} Appellees also argue that the videos capturing the incident from several cameras in the bus (attached as an exhibit to appellants' motion for summary judgment) show Tyson was negligent. Appellees allege the video footage depict the following: moments before the incident, the Mencinis' vehicle was traveling in the only lane for vehicular traffic and Tyson was driving directly behind him in that lane; when Anthony began to slow down to turn right into the driveway, Tyson, without braking, immediately began merging into the bike lane and then collided with the Mencinis' vehicle when it turned right.
{¶ 7} Appellees attached to their brief opposing the summary judgment motion Tyson's deposition testimony and several exhibits introduced during his deposition. During his deposition, Tyson was asked to read his hand-written statement in the "Traffic Crash Witness Statement" provided by RTA to the Ohio Department of Public Safety regarding the incident (exhibit 2). The statement reads, "I was heading east on Community College attempting to make way around vehicle and was hit on the front left side by another vehicle." The report indicated the posted speed limit was 35 mph and it contained Tyson's statement that he was traveling 30 mph.
{¶ 8} During Tyson's testimony, appellees also introduced a "Greater Cleveland Reginal Transit Police Incident Report # 19-31407" (exhibit 4). The incident report was provided by appellants in discovery and prepared by RTA Police Officer Anderson Campbell. (It is unclear from the record whether this incident report is the report referenced in RTA's expert report.) Tyson was asked about the following statement in the incident report: "I [Campbell] spoke with the operator of the coach (unit #1), John Tyson, who advised that he thought that unit #[2] was slowing to turn left and he [Tyson] passed the unit on the right side." Tyson acknowledged that "that's how it reads" but denied he ever stated that he thought the Mencinis' vehicle was slowing to turn left.
{¶ 9} Tyson testified that the other driver Anthony Mencini was at fault for the incident because he failed to signal for a right turn and impeded the flow of traffic, and that he was not expecting Anthony to turn right. Tyson acknowledged that section 406.5 of RTA Bus Operator Handbook (exhibit 3), which concerns designated bike lanes, states "[d]o not operate within the designated bike lane except: when making right turns at designated locations or when making a passenger stop at a designated passenger stop location." Tyson testified that he was not making a passenger stop at the time, but he was "setting up to make the passenger stop." Tyson also acknowledged in his deposition that he was issued a "First Written Reminder" and placed on probation after the incident.
{¶ 10} The trial court denied appellants' motion for summary judgment. On appeal, RTA raises the following three assignments of error for our review:
{¶ 11} For ease of discussion, we will address the assignments of order out of order.
{¶ 12} As an initial matter, we note that while an order denying a motion for summary judgment is generally not a final appealable order, an order denying a political subdivision or an employee of a political subdivision the benefit of an alleged immunity from liability is a final order. Hubbell v. Xenia, 115 Ohio St.3d 77, 2007-Ohio-4839, 873 N.E.2d 878, ¶ 27, citing RC. 2744.02(C). While we lack appellate jurisdiction to consider the merits of this dispute, we have the jurisdiction to consider the question of whether RTA and its employee are entitled to immunity. Alpha Plaza Invests., Ltd. v. Cleveland, 2018-Ohio-486, 105 N.E.3d 680, ¶ 19 (8th Dist.) ("An appeal from the denial of a motion seeking judgment against a plaintiffs claim based on sovereign immunity is limited to review of only the trial court's decision denying the political subdivision the benefit of immunity.").
{¶ 13} Civ.R. 56(C) states that summary judgment shall be rendered if "the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law."
{¶ 14} Summary judgment is appropriate where (1) there is no genuine issue as to any material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) reasonable minds can come to but one conclusion, and that conclusion...
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