Smiddy v. Wedding Party, Inc.

Decision Date15 April 1987
Docket NumberNo. 86-913,86-913
Citation506 N.E.2d 212,30 OBR 78,30 Ohio St.3d 35
CourtOhio Supreme Court
Parties, 30 O.B.R. 78 SMIDDY, Admr., Appellee, v. The WEDDING PARTY, INC. et al., Appellants.

Syllabus by the Court

1. Summary judgment in favor of a person who has failed to comply with a specific highway safety statute may not be granted on the ground that compliance was impossible unless reasonable minds must conclude that there was no way by which that person could have complied.

2. An automobile, van, or truck stopped on a highway in a driver's path during daylight hours is, in the absence of extraordinary weather conditions, a reasonably discernible object as a matter of law. (McFadden v. Elmer C. Breuer Transp. Co. [1952], 156 Ohio St. 430, 46 O.O. 354, 103 N.E.2d 385, followed.)

At 10:00 a.m. on January 10, 1984, defendant-appellant Andrew D. Hesketh was driving a commercial van in the course of his employment with defendant-appellant The Wedding Party, Inc. Hesketh was traveling southbound on a flat, straight section of Interstate 75, within the corporate limits of Cincinnati. The roadway was wet from an early morning snowfall and, although it was daylight, some drivers had their headlights on.

While in the second from the left of four southbound lanes, Hesketh's van lost power and ceased to operate. Hesketh's attempts to restart the van's engine were futile, and he claims he was unable to pull over to either side of the road due to traffic in the other three lanes. Therefore, Hesketh coasted the van to a stop in his lane.

While the van was coasting, Hesketh turned on his emergency flashers; however, he was unable to determine if they were operating. Hesketh did observe that other motorists behind him were able to change lanes and drive around the van.

As the van came to a stop, Hesketh noticed in his mirrors that a truck was stopping directly behind him. Hesketh opened his door and yelled back to the truck driver for help in pushing the van off the highway, but the truck driver declined and drove away.

There were no flares or flags aboard the van. Hesketh remained inside the van after the truck driver left, trying to think of what to do. After about one minute, the van was struck in the right rear area by a step-van driven by appellee's decedent, Grant Smiddy. Hesketh's van was propelled forward into the left two lanes, striking another vehicle. Smiddy's van veered to the right and struck a guardrail. Smiddy was fatally injured.

Appellee, the administrator of Smiddy's estate, filed a wrongful death action against appellants in the Hamilton County Court of Common Pleas, alleging that Hesketh was negligent and negligent per se, and that he had committed wanton misconduct. The court granted appellants' motion for summary judgment, but the court of appeals reversed, holding that genuine issues of material fact existed on numerous issues.

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

Joseph W. Shea III, Cincinnati, for appellee.

G. Gregory Lewis, Cincinnati, for appellants.

HERBERT R. BROWN, Justice.

The issue presented is whether the trial court properly granted summary judgment for appellants. Our task is therefore to apply Civ.R. 56(C) 1 to the evidence and allegations contained in the record.

I

Appellee first maintains that Hesketh failed to comply with R.C. 4513.28(D) 2 and was therefore negligent per se. See Bush v. Harvey Transfer Co. (1946), 146 Ohio St. 657, 33 O.O. 154, 67 N.E.2d 851; Schalk v. Spreckelmeier (1971), 27 Ohio App.2d 210, 56 O.O.2d 389, 273 N.E.2d 795. Appellants concede that R.C. 4513.28(D) applies, but they argue that Hesketh's failure to set out flags was excused because the limited time and heavy traffic rendered it impossible for him to do so.

In Bush v. Harvey Transfer Co., supra, we held in paragraph two of the syllabus:

"A legal excuse, precluding liability for injuries resulting from negligence per se in the failure to comply with a safety legislative enactment directing the manner of the operation of a motor vehicle on the public highways, must be something which makes it impossible to comply with the safety legislative enactment, something over which the driver has no control, an emergency not of the driver's making causing failure to obey the statute, or an excuse or exception specifically provided in the enactment itself."

Whether compliance with a specific highway safety statute was impossible in a particular case is ordinarily a question of fact for the jury. Francis v. Bieber (1967), 10 Ohio St.2d 65, 39 O.O.2d 52, 225 N.E.2d 251. Therefore, summary judgment in favor of a person who has failed to comply with such a statute may not be granted on the ground that compliance was impossible unless reasonable minds must conclude that there was no way by which that person could have complied.

We do not think that reasonable minds, construing the evidence most favorably toward appellee, 3 must conclude that there was no way by which Hesketh could have complied with R.C. 4513.28(D). In the present case, Hesketh had at least one minute in which to set up the warning flags as required by statute, though doing so would require risk. 4 Therefore, we hold that the issue of whether compliance with R.C. 4513.28(D) was impossible should not have been disposed of by summary judgment. 5

II

Appellee also maintains that Hesketh violated R.C. 4511.66, 6 and was therefore negligent. Although R.C. 4511.66 is a highway safety statute, it does not provide for an absolute prohibition against stopping, parking, or leaving a vehicle standing on the traveled portion of a highway. Rather, doing so is prohibited only if it is practicable to stop, park, or leave the vehicle off the traveled portion of the highway. Further, the statute exculpates the driver if it is impossible to avoid stopping and temporarily leaving the disabled vehicle in such position. Therefore, negligence does not automatically follow from the fact that a disabled vehicle is stopped on the traveled portion of a highway. Batesole v. Stratford (C.A.6, 1974), 505 F.2d 804; Lester v. John R. Jurgensen Co. (C.A.6, 1968), 400 F.2d 393, 46 O.O.2d 230.

Appellants argue that R.C. 4511.66 is inapplicable to the case sub judice because it was "impossible to avoid stopping and temporarily leaving the disabled vehicle * * * [on the traveled portion of the highway]." Id. We think an issue of fact exists. Hesketh admitted in his deposition that other vehicles pulled out from behind him and went around the van as it was coasting to a stop. Construing the facts most strongly in appellee's favor, reasonable minds could conclude from this statement that Hesketh might have pulled his van off the traveled portion of the highway.

Therefore, we hold that the issue of whether R.C. 4511.66 applies to the case sub judice should not have been disposed of by summary judgment.

III

We also hold that genuine issues of material fact exist as to whether Hesketh was negligent, apart from the safety statutes. Construing the facts adduced in favor of the appellee, it might reasonably be concluded that Hesketh violated a duty owed to appellee's decedent by failing to do what a reasonably prudent person would have done under the circumstances. Davison v. Flowers (1930), 123 Ohio St. 89, 174 N.E. 137. Reasonable minds could conclude that a reasonably prudent person would have taken action to warn approaching motorists of the danger presented by the stalled van, rather than remaining inside it.

IV

Although questions exist as to Hesketh's alleged negligence and negligence per se, such is not the case in regard to his alleged wanton misconduct. In Hawkins v. Ivy (1977), 50 Ohio St.2d 114, 4 [506 N.E.2d 217] O.O.3d 243, 363 N.E.2d 367, we held in the syllabus:

"Where the driver of an automobile fails to exercise any care whatsoever toward those to whom he owes a duty of care, and his failure occurs under circumstances in which there is great probability that harm will result, such failure constitutes wanton misconduct. * * * " In Hawkins, we held that the driver of a car that had stalled between fifteen and twenty-five feet from a driveway committed wanton misconduct where he made no attempt to move the car off the street even though friends were present; failed to activate the car's emergency flashers, headlights, or parking lights; and failed to take any other action to warn approaching motorists of the car's presence.

The case sub judice is distinguishable from Hawkins. Hesketh attempted to get help from the truck driver who stopped behind him to move the van off the roadway; the truck driver refused. Additionally, Hesketh said he switched his emergency flashers on, though he could not be sure they were working. These attempts by Hesketh to neutralize the danger presented to approaching motorists by his stalled van negate, as a matter of law, appellee's assertions of wanton misconduct. Pisel v. Baking Co. (1980), 61 Ohio St.2d 142, 15 O.O.3d 175, 399 N.E.2d 1243; Baab v. Shockling (1980), 61 Ohio St.2d 55, 15 O.O.3d 82, 399 N.E.2d 87.

V

The court of appeals held that a jury question existed on the issue of whether appellee's decedent, Smiddy, violated R.C. 4511.21(A), 7 and was therefore also negligent per se. See Spalding v. Waxler (1965), 2 Ohio St.2d 1, 31 O.O.2d 1, 205 N.E.2d 890. We disagree. In McFadden v. Elmer C. Breuer Transp. Co. (1952), 156 Ohio St. 430, 46 O.O. 354, 103 N.E.2d 385, we held in paragraph one of the syllabus:

"The question of whether the operator of a motor vehicle was negligent in failing to comply with the 'assured-clear-distance-ahead' rule contained in * * * [R.C. 4511.21(A) ], is not presented to the trier of the facts where there is no substantial evidence (1) that the object with which such operator collided was located ahead of him in his lane of travel, and (2) that such object was reasonably discernible, and (3) that the object was (a) static or stationary, or (b)...

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