Norris v. Ohio Standard Oil Co., No. 81-895

• Court: United States State Supreme Court of Ohio
• Writing for the Court: PER CURIAM; SWEENEY; STEPHENSON; CLIFFORD F. BROWN; STEPHENSON, J., of the Fourth Appellate District, sitting for FRANK D. CELEBREZZE; VICTOR, J., of the Ninth Appellate District, sitting for WILLIAM B. BROWN; CLIFFORD F. BROWN
• Citation: 433 N.E.2d 615,70 Ohio St.2d 1,24 O.O.3d 1
• Parties: , 24 O.O.3d 1 NORRIS et al., Appellants, v. OHIO STANDARD OIL CO. et al., Appellees.
• Docket Number: No. 81-895
• Decision Date: 07 April 1982

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70 Ohio St.2d 1 433 N.E.2d 615, 24 O.O.3d 1 NORRIS et al., Appellants,
v.
OHIO STANDARD OIL CO. et al., Appellees. No. 81-895. Supreme Court of Ohio. April 7, 1982.

Pees & Behal and Randall W. Pees, Columbus, for appellants.

Brown, Bemiller, Murray & McIntyre and John T. Brown, Mansfield, for appellees.

PER CURIAM.

Appellants set forth in their initial proposition of law that:

"A motorist whose lane is obstructed by a snowdrift is excused from complying with R.C. § 4511.25, the 'left of center' statute. * * * "

The issue before us here is whether defendants-appellees' motion for summary judgment was properly granted.

"Summary judgment is a procedural device to terminate litigation and to avoid a formal trial where there is nothing to try. It must be awarded with caution, resolving doubts and construing evidence against the moving party, and granted only when it appears from the evidentiary material that reasonable minds can reach only an adverse conclusion as to the party opposing the motion. Petroff v. Commercial Motor Freight, Inc. (1960), 82 Ohio Law Abs. 433 (165 N.E.2d 840); Horvath v. Fisher Foods, Inc. (1963), 93 Ohio Law Abs. 182 (194 N.E.2d 452); Norman v. Thomas

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Emery's Sons, Inc. (1966), 7 Ohio App.2d 41 (218 N.E.2d 480); Morris v. First Natl. Bank & Trust Co. (1970), 21 Ohio St.2d 25 (254 N.E.2d 683). A successful motion for summary judgment rests on the two-part foundation that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Kwait v. John David Management Co. (1974), 42 Ohio App.2d 63 (329 N.E.2d 702)." Vetovitz Bros., Inc., v. Kenny Constr. Co. (1978), 60 Ohio App.2d 331, 332, 397 N.E.2d 412.

To warrant a summary judgment in a tort action the trial court must properly conclude that:

" * * * (1) the defendant was not negligent, or (2) that the plaintiff has assumed the risk, or (3) that the plaintiff was contributorily negligent." (Emphasis sic.) [433 N.E.2d 617] Rainey v. Harshbarger (1963), 7 Ohio App.2d 260, 264, 220 N.E.2d 359.

The Court of Appeals found in appellees' favor in each instance stated above, though any one ground is sufficient to sustain the summary judgment.

Appellants' first proposition of law involves construction of R.C. 4511.25(A) (2). We note at the outset that the issue of comparative negligence was not raised below and is not properly before us now. R.C. 4511.25, in part, provides:

"(A) Upon all roadways of sufficient width, a vehicle or trackless trolley shall be driven upon the right half of the roadway, except as follows:

" * * *

"(2) When an obstruction exists making it necessary to drive to the left of the center of the highway; provided, any person so doing shall yield the right of way to all vehicles traveling in the proper direction upon the unobstructed portion of the highway within such distance as to constitute an immediate hazard."

This statute was enacted in its present form in 1975, and postdates Dibert v. Ross Pattern & Foundry Development Co. (1957), 105 Ohio App. 264, 152 N.E.2d 369, which was relied on by appellees and the Court of Appeals. The statute construed in Dibert, supra, excused driving on the left when the "right half of the roadway * * * (was) closed to traffic," and included no requirement that a car proceeding on the left yield to oncoming traffic. We agree with appellants that the General Assembly intended, in making the changes in the former statute, to permit

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a motorist to drive left of center when his lane is obstructed, as by a snowdrift. The motorist driving left of center must yield, however, to oncoming traffic, constituting an immediate hazard. In light of the record before us, Norris' failure to yield to Hetler was a violation of R.C. 4511.25(A)(2), and constituted contributory negligence as a matter of law. Summary judgment for appellees was appropriate on this ground, and we need not consider appellants' other propositions of law.

The judgment of the Court of Appeals is affirmed.

Judgment affirmed.

SWEENEY, Acting C. J., and VICTOR, LOCHER, HOLMES and KRUPANSKY, JJ., concur.

STEPHENSON, J., concurs in the judgment.

CLIFFORD F. BROWN, J., dissents.

STEPHENSON, J., of the Fourth Appellate District, sitting for FRANK D. CELEBREZZE, C. J.

VICTOR, J., of the Ninth Appellate District, sitting for WILLIAM B. BROWN, J.

CLIFFORD F. BROWN, Justice, dissenting.

The accident in question occurred the day after the infamous "Blizzard of '78." The majority has recognized that, under those unusual circumstances, plaintiff was justified in travelling left of center. ¹ They go on to conclude, however, that "Norris' failure to yield to Hetler was a violation of R.C. 4511.25(A)(2), and constitutes contributory negligence as a matter of law." However, only an unexcused failure to comply with a statute constituted negligence per se. Zehe v. Falkner (1971), 26 Ohio St.2d 258, 271 N.E.2d 276; Spaulding v. Waxler (1965), 2 Ohio St.2d 1, 205 N.E.2d 890. Plaintiff should have been given the opportunity to prove that his actions were excusable. The majority's conclusions not only invade the jury function but preclude recovery by any plaintiff who exercises his statutory right to cross left of center when

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confronted with an obstruction in his lane. I cannot agree with this reasoning and I therefore dissent.

[433 N.E.2d 618] R.C. 4511.25 imposes upon a person in the position of the plaintiff a duty to yield the right of way to an approaching vehicle. However, the statute does not specifically indicate what constitutes failure to "yield." If road conditions precluded plaintiff from moving completely off the road in order for defendant to pass, it is for the jury to determine whether the actions he did take constituted "failure to yield."

In my opinion, plaintiff fulfilled his statutory obligation to yield. Prior to seeing the approaching truck, plaintiff was travelling approximately 10-15 miles per hour. Upon discerning the danger of defendant's vehicle at the crest of the hill, plaintiff brought his vehicle to a stop where it rested until struck by the defendant. Plaintiff thus did everything possible to avoid a collision.

Moreover, because the plaintiff was not operating his vehicle in the defendant's lane "in a manner contrary to law", R.C. 4511.21 placed upon the defendant the duty to maintain an assured-clear-distance ahead.

The defendant's duty to exercise ordinary due care in maintaining an assured-clear-distance exists even when...