Morris v. Ohio Dep't of Transp., 2018-00991JD

CourtCourt of Claims of Ohio
Writing for the CourtHOLLY TRUE SHAVER Magistrate Judge
Citation2022 Ohio 1594
Decision Date16 March 2022
Docket Number2018-00991JD




No. 2018-00991JD

Court of Claims of Ohio

March 16, 2022

Sent to S.C. Reporter 5/12/22


HOLLY TRUE SHAVER Magistrate Judge

{¶1} Plaintiff brought this action alleging negligence. The issues of liability and damages were bifurcated, and the case proceeded to trial on the issue of liability. The matter has been fully briefed. Defendant's August 17, 2021 motion to strike plaintiffs post-trial briefs for failure to comply with the page limitation in L.C.C.R. 4(E) is DENIED. Plaintiffs August 18, 2021 motion to exceed the page limitation is GRANTED, instanter.

I. Factual Background

{¶2} On July 10, 2016, plaintiff, Martha Morris, and her companion, Paul Tracy Fortner, were riding their motorcycles northbound on Cumberland Road south of the intersection of Cumberland Road and Camay Road in Carroll County, Ohio. Cumberland Road, also known as SR 212, is a two-lane, rural highway. The posted speed limit is 55 miles per hour (mph). Camay Road intersects Cumberland Road from the east. A stop sign controls the traffic on Camay Road entering Cumberland Road. On the west side of Cumberland Road, across from Camay Road is an area that can be described as either an expanded shoulder or a "pull-off." Cumberland Road has white, solid edge lines on both the east and west sides of the roadway. The east edge line is interrupted where Camay Road intersects Cumberland Road. The west edge line continues on Cumberland Road adjacent to the pull-off.

{¶3} During their motorcycle ride, another motorist was ahead of both Fortner and plaintiff, driving a 1985 Dodge Ram truck at a slow rate of speed. Fortner and plaintiff


followed the truck, which they estimated was traveling approximately 30-35 mph, when the center line of Cumberland Road was striped with a double yellow line. However, when the pavement marking changed to a dashed yellow line for northbound traffic, Fortner, who was traveling ahead of plaintiff, drove left of the center line and successfully passed the truck. Shortly after Fortner passed the truck, plaintiff attempted to pass the truck by traveling left of the dashed center line. However, when plaintiff attempted to pass the truck, the driver of the truck suddenly turned left to access the pull-off. At that time, plaintiff was unable to avoid the truck, and her motorcycle struck the driver's side door of the truck. The impact with the truck caused plaintiff to be ejected from her motorcycle. Plaintiff landed on the hood of the truck and was dragged underneath the truck, sustaining serious injuries.

{¶4} The pavement markings where plaintiff initiated her passing maneuver included a dashed yellow center line for northbound traffic, and a solid yellow center line for southbound traffic. Although the area of impact was located within 100 feet of the intersection of Camay and Cumberland Roads, a single, dashed yellow center line continued through the intersection, while the solid yellow line for southbound traffic did not continue through the intersection.

{¶5} Plaintiff alleges that defendant, Ohio Department of Transportation (ODOT), was negligent in both its maintenance of the roadway and the signage and striping that was in place at the time of the accident. Plaintiff argues that defendant breached its duty of ordinary care when it striped the intersection with a dashed yellow center line to permit passing when passing is prohibited by statute within 100 feet of an intersection; that the white edge line on the west side of Cumberland Road should not have continued through the intersection; that the length of the passing zone violated mandatory requirements as set forth in the Ohio Manual of Uniform Traffic Control Devices (OMUTCD or Manual[1]);


and, that there was a lack of both visual cues and signage to warn motorists of an intersection. Plaintiff contends that defendant's negligence was a proximate cause of the collision because plaintiff would not have initiated a passing maneuver if she had been alerted that she was approaching an intersection.

II. Summary of Testimony

{¶6} Paul Tracy Fortner testified that plaintiff was his "common law wife," in that they had been together for 13 years. Fortner stated that he and plaintiff were enjoying a mid-day bike ride, exploring potential places to relocate his recreational vehicle to be closer to his worksite. He described the ride as leisurely, and stated that the collision occurred on a Sunday afternoon around 3:00 p.m.

{¶7} According to Fortner, an old truck was in front of them, traveling approximately 30 mph in a 55-mph zone. Fortner and plaintiff followed the truck for a while because they were not in a passing zone. Fortner stated that the double center line changed to a broken line for his lane of traffic to pass. Fortner checked for traffic behind him, to be aware of his surroundings. Before he passed, he looked in his rearview mirror and then in front of him. No traffic was coming, and Fortner had a "long stretch of clarity." Fortner activated his turn signal, passed the truck, and returned to the right lane. Fortner testified that when he passed the truck, he noticed that the driver's side mirror had no mirror in it. Once Fortner returned to his lane of travel, plaintiff was still behind the truck. According to Fortner, he saw plaintiff signal to pass, and suddenly, he saw the truck driver make a left turn in front of plaintiff, and she was catapulted into the air, landed on top of the hood of the truck, slid underneath the truck, and the truck slid on top of her. Fortner stated that he did not see the truck activate a turn signal.

{¶8} On cross-examination, Fortner explained that he has known plaintiff since 2008, and it was his understanding that once you live with someone for three years, you are considered a common law spouse. Fortner described the weather as a beautiful day for a bike ride: pavement was dry; weather was nice and warm with clear skies. Fortner


did not have a map or a GPS system with him, and he and plaintiff did not have a communication system between them on their motorcycles. Fortner described the ride as having a low volume of traffic. Fortner stated that the truck was driving slowly, that it was in poor shape, and that it was "smoking." Fortner stated that they had been following the truck for a fair distance, and that he did not know whether the driver was having difficulty, but he wanted to pass the truck as soon as he could to avoid it. Fortner passed the truck before they reached the Camay Road intersection. Fortner did not honk his horn before passing the truck. Fortner did not know whether the truck's turn signal was operational. Neither Fortner nor plaintiff were wearing helmets.

{¶9} Plaintiff, Martha Morris, testified that she had been riding motorcycles for two and a half years before the accident. She described herself as being very cautious and aware of her surroundings. Plaintiff stated that she did not have a motorcycle endorsement on her Ohio driver's license, but she had her permit book and was intending on getting the endorsement.

{¶10} Plaintiff described the accident as follows. When Fortner activated his turn signal to pass the truck, she activated hers. She looked to see if it was clear, and she began to pass the truck. Plaintiff never saw whether the truck had its turn signal on, and she did not observe any break lights from the truck. When she was almost parallel with the driver's door of the truck, the truck suddenly turned left. Plaintiff stood up on her "pegs," "laid on the horn," and that is all she remembers. Plaintiff was adamant that the truck driver did not activate his turn signal. Plaintiff testified that in the area where the accident occurred, there was a broken yellow line for her lane of travel, and a solid white edge line on the west side of Cumberland Road. No signs were posted warning of the intersection ahead or stating that it was a no-passing zone. Plaintiff believed she was in a legal passing zone because of the broken yellow line and the solid edge line on the west side of the road, although she did see the pull-off. Plaintiff explained that she feels


she did nothing wrong because she was in a legal passing zone, and she did not see the truck use a turn signal.

{¶11} On cross-examination, plaintiff testified that she was in the process of obtaining a motorcycle endorsement but that she rode that day without one; that she was not aware of the intersection; that she did not honk her horn until she realized the truck was turning in front of her; and that the truck was dilapidated and there was smoke coming from its exhaust pipe. On re-direct, plaintiff testified that she had never been on that roadway before, and she would not have attempted to pass the truck if the road had not been striped as a passing zone. On re-cross, plaintiff stated that in her opinion, the driver of the truck was at fault for not having break lights or a turn signal activated. Plaintiff stated that she would not have attempted to pass the truck if the driver had activated his turn signal. Plaintiff also stated that she relied on the pavement markings when she decided to pass the truck.

{¶12} Jeffrey Solomon testified that he was the deputy sheriff who investigated the accident. Solomon completed the accident report (Defendant's Ex. A) and took photos and witness statements. Solomon spoke to the driver and passenger of the truck and asked them to fill out statements. When Solomon observed the truck, he testified that the turn signal was on. Solomon testified that a photo taken at the accident scene shows the turn signal was illuminated. (Defendant's Ex. D-1.) Solomon testified that he did not issue a citation to plaintiff because she was life-flighted to the hospital. Solomon stated that he could have cited plaintiff for not...

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