Shinaver v. Szymanski

• Decision Date: 05 December 1984
• Docket Number: No. 83-1503,83-1503
• Citation: 14 Ohio St.3d 51,471 N.E.2d 477,14 OBR 446
• Parties: , 14 O.B.R. 446 SHINAVER, Exr., et al., Appellants, v. SZYMANSKI et al., Appellees.
• Court: Ohio Supreme Court

Page 51

14 Ohio St.3d 51

471 N.E.2d 477, 14 O.B.R. 446

SHINAVER, Exr., et al., Appellants, v. SZYMANSKI et al., Appellees.

No. 83-1503.

Supreme Court of Ohio.

Dec. 5, 1984.

Syllabus by the Court

1. Where the plaintiff driver is travelling immediately behind the defendant driver, and both parties are negligent per se for failing to maintain the assured clear distance ahead in violation of R.C. 4511.21, the question of whether the negligence of either party was the proximate cause of the ensuing collision, in which the plaintiff driver sustained personal injuries, is for jury determination.

2. The contributory negligence of a driver of a vehicle which results in the death of his passenger is not imputed to his passenger and therefore does not affect the passenger's right of action for injuries and medical expenses proximately caused by the negligence of another driver. This right of action is maintainable under the general survival statute, R.C. 2305.21, and is independent of the wrongful death action pursuant to R.C. 2125.01.

3. In an action for wrongful death pursuant to R.C. 2125.01, the contributory negligence of a beneficiary is a partial defense only as to such beneficiary's share of the right to a recovery of damages, but does not constitute a defense as against other, non-negligent, beneficiaries. This issue of whether the contributory negligence of a beneficiary is the proximate cause of the wrongful death must be submitted to the jury pursuant to the comparative negligence provisions of R.C. 2315.19(A)(1).

On the night of January 22, 1980, a multi-vehicle collision occurred on Interstate 280 in Toledo, Ohio. The road surface was wet with snow and slush. Defendant-appellee Paulette O. Szymanski was first in a line of vehicles. She was travelling in the right lane. Behind Szymanski, but in the left lane, were, in order, defendants-appellees Garry L. Blanchard, Mark B. Allen and Roy E. Scherzer (operating a tractor-trailer rig for defendant-appellee Indianhead Truck Line, Inc.), and lastly, plaintiff-appellant Clifford Shinaver, Jr., and his passenger-wife, Dorothy Shinaver.

The Szymanski automobile suddenly spun out of control, struck the concrete median barrier, and came to rest in the left lane. The Blanchard and Allen vehicles managed to stop in time, but the tractor-trailer driven by Scherzer collided with the rear of the Allen automobile, pushing it into the Blanchard vehicle, which in turn was forced into Szymanski's automobile. Plaintiff's pick-up truck then struck the rear of the trailer, causing his vehicle to go under the rig, injuring him and killing his wife. This complaint was subsequently filed by plaintiff for his own injuries. Further, as executor of the estate of Dorothy Shinaver, deceased, plaintiff alleged a wrongful death action and an action for Dorothy Shinaver's injuries prior to her death.

The trial court granted summary judgment in favor of all defendants, ruling that plaintiff was contributorily negligent as a matter of law in failing to maintain the assured clear distance ahead in violation of R.C. 4511.21(A), thereby relieving all defendants of liability. ¹ The court of appeals affirmed.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Lawrence T. Curtis and Wilbur C. Jacobs, Toledo, for appellants.

Eastman & Smith, David F. Cooper, Richard L. Berry, Jr., and Rudolph A. Peckinpaugh, Jr., Toledo, for appellee Roy Scherzer and Indianhead Truck Line, Inc.

Jones, Schell & Schaefer and Stephen A. Schaefer, Toledo, for appellee Mark B. Allen.

CLIFFORD F. BROWN, Justice.

This appeal raises the question of whether plaintiff-appellant was prejudiced by the lower courts' failure to apply the concept of comparative negligence to the instant facts.

R.C. 2315.19(A)(1) provides in pertinent part:

"In negligence actions, the contributory negligence of a person does not bar the person or his legal representative from recovering damages that have directly and proximately resulted from the negligence of one or more other persons, if the contributory negligence of the person bringing the action was no greater than the combined negligence of all other persons from whom recovery is sought. However, any damages recoverable by the person bringing the action shall be diminished by an amount that is proportionately equal to his percentage of negligence * * *."

The effective date of the above statute is June 20, 1980. The accident at bar occurred on January 22, 1980. However, this court has held that the principle of comparative negligence as defined in R.C. 2315.19 shall apply to all negligence actions tried after June 20, 1980 regardless of when the cause of action arose. Wilfong v. Batdorf (1983), 6 Ohio St.3d 100, 451 N.E.2d 1185, paragraph three of the syllabus. The trial court entered summary judgment in favor of all defendants on February 22, 1983. Thus, although Wilfong, supra, had not yet been announced, R.C. 2315.19 applies to the instant cause, and it must be determined whether the facts herein raise an issue of negligence on the part of defendants, thereby warranting a remand for the determination of their respective degrees of negligence compared to that of plaintiff.

It should first be noted that we accept the ruling of the courts below to the effect that plaintiff was in fact negligent per se for failing to maintain the assured clear distance ahead. See Tomlinson v. Cincinnati (1983), 4 Ohio St.3d 66, 69, 446 N.E.2d 454. The record indicates that plaintiff was aware he was gaining on the vehicles in front of him before he realized there was an accident and before he applied his brakes. Plaintiff argues that the "sudden emergency" exception should apply here, excusing him from compliance with the assured-clear-distance-ahead requirement. This is incorrect. This exception states that a driver does not violate the statute where the assured clear distance ahead is, without his fault, suddenly cut down or lessened by the entrance into his path of an obstruction which renders him unable, in the exercise of reasonable care, to avoid a collision. Erdman v. Mestrovich (1951), 155 Ohio St. 85, 97 N.E.2d 674 , paragraph two of the syllabus. This case clearly does not involve the intrusion of an obstacle with a degree of suddenness which would render plaintiff incapable of avoiding a collision. Nor do weather conditions which result in slippery road surfaces excuse compliance. Ventress v. Frambes (1964), 176 Ohio St. 337, 199 N.E.2d 599 , paragraph one of the syllabus. Finally, there is no question but that the tractor-trailer with which plaintiff collided was "reasonably discernible" to him, since he testified that he actually saw it before he applied his brakes. Thus, he cannot claim exemption from the statute under the rule that R.C. 4511.21 does not apply where the object was not reasonably discernible to the driver. See McFadden v. Elmer C. Breuer Transp. Co. (1952), 156 Ohio St. 430, 103 N.E.2d 385 , paragraph one of the syllabus.

Having concluded that plaintiff was indeed contributorily negligent as a matter of law, we now turn to a determination as to whether the evidence adduced below raises a question of negligence on the part of any of the defendants. If we so find, it follows that summary judgment was inappropriate given the effect of R.C. 2315.19.

Upon an examination of the record, we conclude that no evidence was presented which would reasonably support a finding of negligence on the part of defendants Blanchard and Allen. The record demonstrates that they were both able to stop their vehicles in time to avoid a collision. They had no time to move off the road out of the way of traffic before their vehicles were struck by Scherzer. There was no evidence whatsoever that any course of action reasonably available to Blanchard and Allen could have prevented the accident in question, nor that their conduct had any causal connection with plaintiff's injury or his wife's death. Thus, reasonable minds could only conclude that defendants Blanchard and Allen were not negligent, nor were their actions a proximate cause of the collision. Summary judgment in their favor was therefore appropriate. See Civ.R. 56(C).

As to defendants Scherzer and Indianhead Truck Line, Inc., Scherzer's failure to stop within the assured clear distance ahead was negligence per se as a violation of R.C. 4511.21.

At this juncture it should be noted that the negligence of Clifford Shinaver, as driver of the pick-up truck, may not be imputed to his passenger, the decedent Dorothy Shinaver. Parrish v. Walsh (1982), 69 Ohio St.2d 11, 429 N.E.2d 1176 ; Hocking Valley Ry. Co. v. Wykle (1930), 122 Ohio St. 391, 171 N.E. 860; Rehklau v. Bourne (1928), 118 Ohio St. 494, 161 N.E. 534; 39 Ohio Jurisprudence 2d (1959) 676-677, Negligence, Section 114. The complaint contains operative facts supporting three separate claims for relief, namely (1) plaintiff's claim for his own personal injuries; (2) plaintiff's claim for personal injuries, pain and suffering and medical expenses for Dorothy Shinaver prior to her death which survived to the plaintiff as executor; and (3) plaintiff's claim as executor of the estate of Dorothy Shinaver for damages for wrongful death brought pursuant to R.C. 2125.01 for the benefit of her beneficiaries, namely, her husband and children.

Where the plaintiff driver is travelling immediately behind the defendant driver, and both parties are negligent per se for failing to maintain the assured clear distance ahead in violation of R.C. 4511.21, the question of whether the negligence of either party was the proximate cause of the ensuing collision, in which the plaintiff driver sustained personal injuries, is for jury determination. The defendant driver immediately ahead of plaintiff has no right to summary judgment. Cascone v. Herb Kay Co. (1983), 6 Ohio St.3d 155, 451 N.E.2d 815; Mudrich v. Standard Oil Co. (1950), 153 Ohio St....