Tomlinson v. City of Cincinnati

• Decision Date: 23 March 1983
• Citation: 4 Ohio St.3d 66,4 OBR 155,446 N.E.2d 454
• Parties: , 4 O.B.R. 155 TOMLINSON, Administratrix, Appellee, v. CITY OF CINCINNATI, Appellant.
• Court: Ohio Supreme Court

Page 66

4 Ohio St.3d 66

446 N.E.2d 454, 4 O.B.R. 155

TOMLINSON, Administratrix, Appellee, v. CITY OF CINCINNATI, Appellant.

Supreme Court of Ohio.

March 23, 1983.

Syllabus by the Court

1. Where an affidavit containing opinions is made part of a motion for summary judgment, it is properly considered by a trial or reviewing court when it meets the requirements set forth in Civ.R. 56(E) and Evid.R. 701.

2. In an action involving an application of Ohio's assured-clear-distance-ahead provision, where evidence is introduced on which reasonable minds could reach different conclusions on the issue whether the object struck was reasonably discernible, summary judgment is improper.

At about 11:20 p.m. on the night of June 6, 1978, Joseph M. Tomlinson struck the rear of an abandoned and unlighted pickup truck while operating his automobile in the left, high-speed lane of Interstate 75 within the limits of the city of Cincinnati. He died as the result of injuries suffered in the collision. Two hours earlier, at 9:32 p.m., a police officer for the city had been dispatched by radio to locate and remove an abandoned truck in I-75 pursuant to a complaint made by an unidentified citizen. The officer was unable to locate the truck within the area indicated.

Rosemary Tomlinson, appellee herein, individually and as Administratrix of the Estate of Joseph Tomlinson, initiated this action by filing a complaint in the Court of Common Pleas of Hamilton County, alleging that the appellant, city of Cincinnati, was negligent in failing to remove the pickup truck from the highway or to warn motorists of its location.

In its answer, appellant raised contributory negligence as an affirmative defense. After its motion for judgment on the pleadings was denied, appellant filed a motion for summary judgment, wherein it argued that the deceased was contributorily negligent as a matter of law because he had violated Ohio's assured-clear-distance-ahead rule, R.C. 4511.21. In support of its motion, appellant relied on one of its answers to appellee's interrogatories, which indicated the presence of "street lighting and the visibility of the truck reflectors and the truck itself."

In support of her brief in opposition, appellee submitted the affidavit of Angela Charron, a motorist who observed the abandoned pickup truck at approximately 9:30 p.m. on the night of the accident. She stated that the truck's "right side tires were in the high speed lane," and that she was able to swerve to the right to avoid a collision. The affiant added that:

"This truck was not lighted and the stretch of I-75 Northbound where it was stopped is not well lighted either. If there had been another car in front of me between my car and the truck I probably would have run into it.

"I didn't realize, for sure, that the truck was actually in the highway until I looked at it while I passed it."

The court of common pleas granted summary judgment in favor of appellant. On appeal, the court of appeals reversed, finding that "reasonable minds might differ upon the question whether the object struck was reasonably discernible."

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

Miller & Whiteley and Daniel Whiteley, Jr., Cincinnati, for appellee.

Richard A. Castellini, City Sol., and Daniel J. Schlueter, Cincinnati, for appellant.

PATTON, Justice.

The first question presented for our determination is whether the court of appeals properly considered the affidavit of Angela Charron. Appellant argues that the court erred in relying upon this affidavit to reverse the decision of the trial court granting summary judgment because it contains only the opinions of the affiant, which appellant argues are inadmissible in evidence. ¹ We disagree for the reasons set forth below.

Civ.R. 56(E) prescribes the form affidavits must take when submitted with a motion for summary judgment:

"Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. * * * " (Emphasis added.)

Thus, an affiant's statements must set forth facts admissible in evidence. However, a discernible distinction cannot always be made between "fact" and "opinion." Witness testimony in the form of opinion is not subject to a per se rule of exclusion. Evid.R. 701, which governs the admissibility of lay opinion testimony, eliminates in many instances the need to separate fact from opinion, and it is this rule which must be construed together with Civ.R. 56(E) in order to determine whether the affidavit in this case was properly considered by the court below.

Evid.R. 701 provides that:

"If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (1) rationally based on the perception of the witness and (2) helpful to a clear understanding of his testimony or the determination of a fact in issue."

It is evident from a reading of Ms. Charron's affidavit, that her statements, even if they are to be considered as opinions, are rationally based on her perceptions, and inasmuch as she is the only available witness, they are unmistakably helpful in determining the critical issue of this case, viz., the discernibility of the pickup truck.

We hold, therefore, that where an affidavit containing opinions is made part of a motion for summary judgment, it is properly considered by a trial or reviewing court when it meets the requirements set forth in Civ.R. 56(E) and Evid.R. 701. The affidavit submitted by appellee in the instant case met these requirements.

The second question presented for our determination is whether the court of appeals erred in reversing the trial court's decision granting summary judgment in favor of appellant.

Pursuant to Civ.R. 56(C), summary judgment may be rendered where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Further, the party against whom the motion is made is entitled to have the evidence construed most strongly in his favor. Summary judgment may not be rendered unless it appears that reasonable minds can come to but one conclusion, and that conclusion is adverse to the party against whom the motion is made.

Appellant argues that based upon the evidence presented to the trial court, the pickup truck with which the decedent's automobile collided was reasonably discernible as a matter of law, and therefore the decedent was negligent per se in violation of R.C. 4511.21. We disagree.

Ohio's assured-clear-distance-ahead provision, R.C. 4511.21, provides in relevant part that:

"(A) No person shall operate a motor vehicle, trackless trolley, or streetcar at a speed greater or less than is reasonable or proper,...