Soberay v. Greyhound Lines Inc.
| Decision Date | 11 April 2019 |
| Docket Number | No. 106525,106525 |
| Citation | 2019 Ohio 1371,135 N.E.3d 343 |
| Parties | Mark D. SOBERAY, Plaintiff-Appellee, v. GREYHOUND LINES INC., et al., Defendants-Appellants. |
| Court | Ohio Court of Appeals |
Miller, Canfield, Paddock & Stone, P.L.C., Cleveland, Christina J. Marshall and Conor T. Fitzpatrick, for appellants.
Kent B. Schneider Co., L.L.C., Kent Schneider ; McCarthy Lebit Crystal & Liffman, Co., Charles Kampinski, Kristin M. Roberts, and Jay H. Salamon, Cleveland; and Robert M. Weber Co., L.C., Robert M. Weber, for appellee.
JOURNAL ENTRY AND OPINION
{¶ 1} Defendants-appellants, Greyhound Bus Lines, Inc. ("Greyhound") and Sabrina Anderson ("Anderson") (collectively referred to as "Greyhound"), appeal the jury verdict awarded in favor of plaintiff-appellee Mark Soberay ("Soberay"). For the reasons that follow, we affirm.
{¶ 2} On October 9, 2013, Anderson was driving a Greyhound motorcoach westbound on Interstate 80 in Pennsylvania from New York City to Cleveland when the bus collided with a tractor trailer. Akos Gubica ("Gubica") was driving the tractor trailer, which was rear-ended by the Greyhound bus. According to Anderson, she did not see Gubica's truck before the collision.
{¶ 3} Soberay was a passenger on the bus and suffered severe injuries as a result of the collision. Soberay alleged that the collision occurred after Anderson fell asleep while operating the bus. Greyhound alleged that the collision could not be avoided because Gubica's truck was traveling so slowly or because Anderson had a medical emergency that caused the collision; specifically that she had a ministroke.
{¶ 4} Forty-two plaintiffs filed personal injury actions in Pennsylvania, New York, Ohio, and Texas against Greyhound. Soberay filed suit against Greyhound and Anderson in Cuyahoga County Common Pleas Court. Greyhound filed a third-party complaint against Gubica and his company, C.A.V. (collectively referred to as "Gubica"). Greyhound and Gubica ultimately settled their claims; Gubica was dismissed as a party in the underlying case and is not a party to this appeal.
Pretrial motions
{¶ 5} Prior to trial, the trial court decided numerous pretrial motions and determined that substantive Pennsylvania law would apply to the case, but Ohio law would apply to the procedural aspects of the case. The trial court ordered that Greyhound would not be permitted to argue to the jury that Gubica caused the accident and could not discuss Gubica's conduct in a way that might suggest he was at fault for the accident. The court ruled that any violation of its order would allow Soberay to disclose to the jury the details of the settlement agreement reached by Greyhound and Gubica.
{¶ 6} Gubica was taken into custody shortly after the accident and placed in a holding cell with Matthew Welch ("Welch"). Welch testified in a discovery deposition that Gubica told him that he smoked marijuana before the accident. The trial court ordered that Welch's testimony was inadmissible.
{¶ 7} The trial court excluded the conclusion contained in the Pennsylvania State Police Accident Reconstruction Report as to who caused the accident. Accident reconstructionist Corporal Steven Schmit was prepared to testify to the report's conclusion that a fully attentive driver would have been unable to avoid colliding with Gubica's truck due to the low speed and lack of visibility of the truck. Trial
{¶ 8} The case proceeded to a month-long jury trial at which the following pertinent evidence was presented.
{¶ 9} Gubica testified that he told the police he was traveling around 45 m.p.h. at the time of the accident but his speed throughout his trip varied from 40 m.p.h. to 70 m.p.h. depending on the grade of the road. Gubica's flat bed truck was carrying a load that was secured by a tarp. According to Gubica, the tarp was secure and nothing occurred during the trip that would have caused the tarp to hang off the back of the truck or obscure the truck's rear lights.
{¶ 10} Gubica did not see the Greyhound bus prior to the collision.
{¶ 11} James Evans ("Evans"), a professional truck driver who saw Gubica driving prior to the accident, observed Gubica's truck climbing Mount Pocono at a steep grade and recalled that the vehicle was in decent condition. According to Evans, Gubica was doing a "pretty decent job of getting up the mountain" and thought Gubica was traveling at a regular speed before the accident occurred: "He would have been [going] 35 [m.p.h.], 40 [m.p.h.] plus, * * * going up the mountain." Evans also saw that Gubica's truck lights were on and visible and his tarp was properly secured.
{¶ 12} Evans also encountered the Greyhound bus before the accident. The bus came over the center line into his lane and he was forced to swerve to the right to avoid colliding with the bus. He also saw the bus veer back and forth hitting the rumble strips. He noted that the bus was weaving and "top swaying," which made Evans think that the driver was either texting or sleeping.
{¶ 13} John Smith ("Smith"), an expert in accident investigation and reconstruction, testified that he examined Gubica's rear lights after the crash and opined that all nine of the truck's lights were on at the time of the collision. He observed that Gubica's load was not obscuring the lights and the truck had reflective tape, known as "conspicuity tape," on the back of the vehicle. Smith opined that there were no inherent sight obstructions, and Anderson should have been able to see Gubica's vehicle with sufficient time and distance to avoid the collision.
{¶ 14} Smith testified that CADEC (GPS) data for seven miles prior to the accident demonstrated that the bus had been weaving or drifting in its lane for an extended period before impact: "The data does show that there's been a weaving to the bus driver's actions leading up to the area of impact." Smith opined that Anderson did not take any evasive maneuvers before the accident because she was fatigued or asleep. He found no evidence that Anderson blacked out prior to the collision because "there's braking action that's occurring within a second of impact." Smith testified:
One of the things you look for in fatigue collisions is driver input soon or at the time of the event. That's the key characteristic of a fatigue or a fall-asleep type of collision, is suddenly the driver does something because they become aware of their surroundings. And in this case we have that. We have the brake application within about a second of the collision time, which is somebody becoming aware of their surroundings again and then taking the action.
{¶ 15} Smith testified that he considered defense expert Steven Schorr's ("Schorr") report. Smith found that Schorr used incorrect data to calculate the speed of Gubica's truck. Smith testified "to a reasonable degree of engineering certainty" that Gubica's speed at the time of impact was at least 43 to 45 m.p.h. and that there was "no possible way he was doing 21 [m.p.h.]" as Greyhound alleged.
{¶ 16} Smith testified that the cause of the collision was Anderson driving into a vehicle that "should have been readily apparent to her." According to Smith, Anderson could have seen Gubica's truck from 1,000 feet away and would have had Smith opined that there was no evidence that Gubica contributed to the collision.
{¶ 17} Dr. Mark Edwards ("Dr. Edwards") testified as an expert in human factors.1 Dr. Edwards testified that, based on accident and research data, Anderson's failure to even attempt to avoid the collision showed that she was not alert and attentive at the time the accident occurred.
{¶ 18} Dr. Edwards testified that Gubica's truck had the brightest type of conspicuity tape permitted by the Department of Transportation, and the tape was displayed properly, running the entire width of the truck. According to Edwards, the truck's rear lights would have made it "even more obvious" that the object ahead of Anderson was a truck. He testified that a reasonably attentive driver would have seen and known from 1,000 feet back that a tractor-trailer was ahead of his or her vehicle. According to Edwards, even if he were to assume that Gubica was traveling 16 m.p.h. and the bus was traveling 67 m.p.h., Anderson could have avoided colliding with the truck by employing either a combination of mild braking and a lane change or a "little bit harder braking and no lane change."
{¶ 19} Dr. Edwards disputed the opinion of defense expert, Dr. Robert Sugarman ("Dr. Sugarman"), who had opined that Anderson would not have been able to avoid the collision. Dr. Edwards opined that Dr. Sugarman's opinion had no scientific basis and the scientific method the doctor relied on "consistently produces incredibly short distances that just aren't realistic."
{¶ 20} Dr. Steven Levin ("Dr. Levin"), an expert in neurology, testified that he was contacted to evaluate Greyhound's theory that Anderson had suffered a transient ischemic attack
("TIA"), commonly known as a "ministroke," just prior to the collision. Dr. Levin opined that Anderson did not suffer a TIA. According to Dr. Levin, people who experience a TIA do not lose consciousness, instead they have "an event that typically lasts for minutes and they know about it and they can give a history about it, * * * they don't black out. Another reason Dr. Levin did not think Anderson suffered a TIA was that a TIA usually effects a person's face and arm, not their leg: "And in her case it started with her leg and then it's not clear whether the arm — how much time was...
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