[Cite as Middleton v. Holbrook, 2016-Ohio-3387.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              MARION COUNTY




DOUGLAS MIDDLETON,
                                                         CASE NO. 9-15-47
       PLAINTIFF-APPELLANT,

      v.

JOHNATHON L. HOLBROOK, ET AL.,                           OPINION

       DEFENDANTS-APPELLEES.



                 Appeal from Marion County Common Pleas Court
                           Trial Court No. 14-CV-0568

                                    Judgment Reversed
                                   And Cause Remanded

                             Date of Decision: June 13, 2016



APPEARANCES:

        Jeff Ratliff for Appellant

        J. Alan Smith for Appellee
Case No. 9-15-47


WILLAMOWSKI, J.

        {¶1} Plaintiff-appellant, Douglas Middleton (“Middleton”), brings this

appeal from the judgment of the Common Pleas Court of Marion County, Ohio,

which entered summary judgment in favor of Defendants-appellees, Jonathon

Holbrook (“Holbrook”) and P.J.’s HVAC, LLC (Collectively “Defendants”). For

the reasons that follow, we reverse the trial court’s judgment.

                            Factual and Procedural Background

        {¶2} This case arises out of an accident that occurred on April 11, 2013,

between a vehicle driven by Holbrook, and a bicycle ridden by Middleton. Due to

the fact that only Middleton’s deposition was submitted in support of summary

judgment, the following facts relevant to this case are not in dispute.

        {¶3} Middleton is an avid bicycle rider. (Middleton Dep. at 18, Aug. 10,

2015.) On April 11, 2013, at about 3:00 p.m., Middleton was riding his bike

westbound on the sidewalk located on the south side of East1 Church Street in

Marion, Ohio. (Id. at 19, 22, 24.) East Church Street is a one-way street, with all

traffic going east. (Id. at 25-26.) Middleton stopped on the sidewalk when he

approached the intersection of East Church Street and High Street. (Id. at 23.) He

prepared to turn right and cross East Church Street to then continue north on High

Street. (Id. at 23, 47-48, 54-55.) He saw Holbrook in his vehicle, stopped at the


1
  Although Middleton testified in his deposition that he was riding on West Church Street, all attached
evidence indicates that the events took place at East Church Street. (See Ex. B, C, D.) This inconsistency
has no effect on our analysis of the issues discussed in this opinion.

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Case No. 9-15-47


stop sign on High Street, going north. (Id. at 23, 25.) Holbrook had arrived at the

intersection before Middleton and was looking westward to his left, at the

eastbound traffic, in the direction opposite from Middleton. (Id. at 23-25, 28.)

Middleton did not know whether Holbrook had a turn signal on. (Id. at 27-28.)

Middleton waited for Holbrook, who continued to look the other way. (Id. at 24,

28, 62.) After a couple of minutes, Middleton got on his bike and started to cross

East Church Street. (Id. at 24, 26, 28.) Middleton had already entered the street

when he saw Holbrook pull out and make a right turn into East Church Street. (Id.

at 29-30.) Middleton yelled out to the driver, “you’re going to hit me.” (Id. at

29, 83.) It was too late and Holbrook’s vehicle collided with Middleton, causing

injury. (Id. at 24, 29-30.) There was no marked crosswalk where Middleton was

crossing East Church Street. (Id. at 73.)

       {¶4} Middleton filed a complaint for damages alleging a negligence claim

against Holbrook and a respondeat superior claim against P.J.’s HVAC as

Holbrook’s employer at the time of the accident. (See R. at 1.) Defendants took a

deposition of Middleton and after that, they moved for summary judgment. (See

R. at 19.) In their motion, Defendants argued that Middleton was negligent per se

and that Holbrook was not negligent because it was not foreseeable to him to

expect Middleton on the road. (Id.) They further argued that Middleton’s own

negligence was the sole proximate cause of his injuries. (Id.) In opposition to

Defendants’ motion, Middleton argued that Holbrook was negligent and that his

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Case No. 9-15-47


negligence was the proximate cause of Middleton’s damages. (R. at 23.) He

further contended that his own negligence, if any, was not the proximate cause of

the injuries he sustained. (Id.) In the alternative, he asserted that the jury should

resolve the issues of proximate causation and comparative negligence.             (Id.)

Defendants filed a reply, arguing that Holbrook had no duty to look for and yield

to drivers violating his right of way. (R. at 24.) At issue in the trial court was also

Middleton’s claim for respondeat superior. As a result of the trial court’s ruling

that claim was dismissed, and it is not directly at issue on appeal.

       {¶5} Granting summary judgment in favor of Defendants, the trial court

reasoned that it was “undisputed” that Middleton failed to yield the right-of-way to

Holbrook “and that this was a proximate cause of the crash.” (R. at 25, at 5.) The

trial court then concluded that Holbrook’s failure to see Middleton was

“immaterial” because “a driver that has the right of way [does not] have a duty to

look for other drivers violating her right of way.” (Id. at 5-6, citing Timmins v.

Russomano, 14 Ohio St.2d 124, 127, 236 N.E.2d 665 (1968), and Lumaye v.

Johnson, 80 Ohio App.3d 141, 145, 608 N.E.2d 1108 (10th Dist.1992)). Based on

these observations, the trial court found, “as a matter of law,” that:

       - Holbrook had the right-of-way;

       - Middleton failed to yield to Holbrook’s right-of-way;

       - Middleton’s failure to yield constituted negligence per se;




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Case No. 9-15-47


      - Middleton’s negligence “cannot be outweighed by any failure of

[Holbrook] to observe [Middleton].” (Id. at 6.)

      {¶6} Middleton appeals the trial court’s judgment raising three assignments

of error as quoted below.

                              Assignments of Error

      Assignment of Error Number One
      The trial court erred in granting Defendants-Appellees’ Motion for
      Summary Judgment when it determined that Defendant Holbrook
      had the right of way and was entitled to judgment as a matter of law.

      Assignment of Error Number Two
      The trial court erred in granting Defendants-Appellees’ Motion for
      Summary Judgment when it failed to apply Ohio Revised Code §§
      4511.38(A) and 4511.39(A), as well as Marion City Code §§
      331.13(A) and 331.14(A).

      Assignment of Error Number Three
      The trial court erred when it found that failure to yield the right-of-
      way constituted negligence per se.

                               Standard of Review

      {¶7} All three assignment of error concern the summary judgment ruling.

Under Civ.R. 56,

      Summary judgment shall be rendered forthwith if the pleadings,
      depositions, answers to interrogatories, written admissions,
      affidavits, transcripts of evidence, and written stipulations of fact, if
      any, timely filed in the action, show that there is no genuine issue as
      to any material fact and that the moving party is entitled to judgment
      as a matter of law. No evidence or stipulation may be considered
      except as stated in this rule. A summary judgment shall not be
      rendered unless it appears from the evidence or stipulation, and only
      from the evidence or stipulation, that reasonable minds can come to
      but one conclusion and that conclusion is adverse to the party against
      whom the motion for summary judgment is made, that party being
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Case No. 9-15-47


      entitled to have the evidence or stipulation construed most strongly
      in the party’s favor.

Civ.R. 56(C); Parrish v. Jones, 138 Ohio St.3d 23, 2013-Ohio-5224, ¶ 13, quoting

Civ.R. 56(C).

      {¶8} The party moving for summary judgment has the initial burden “to

inform the trial court of the basis for the motion, identifying the portions of the

record, including the pleadings and discovery, which demonstrate the absence of a

genuine issue of material fact.” Reinbolt v. Gloor, 146 Ohio App.3d 661, 664, 767

N.E.2d 1197 (3d Dist.2001); accord Todd Dev. Co., Inc. v. Morgan, 116 Ohio

St.3d 461, 2008-Ohio-87, 880 N.E.2d 88, ¶ 12. The burden then shifts to the party

opposing the summary judgment. Id. In order to defeat summary judgment, the

nonmoving party may not rely on mere denials but “must set forth specific facts

showing that there is a genuine issue for trial.” Byrd v. Smith, 110 Ohio St.3d 24,

2006-Ohio-3455, 850 N.E.2d 47, ¶ 10, quoting Civ.R. 56(E).

      {¶9} “[B]ecause summary judgment is a procedural device to terminate

litigation, it must be awarded with caution.” Murphy v. Reynoldsburg, 65 Ohio

St.3d 356, 358-359, 604 N.E.2d 138 (1992). The court must thus construe all

evidence and resolve all doubts in favor of the non-moving party, here Middleton.

Id. But if the evidence so construed fails to support the essentials of his claims,

summary judgment is proper. Welco Industries, Inc. v. Applied Cos., 67 Ohio

St.3d 344, 346, 617 N.E.2d 1129 (1993). An appellate court reviews a trial court’s



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Case No. 9-15-47


decision on a motion for summary judgment de novo. Esber Beverage Co. v.

Labatt USA Operating Co., L.L.C., 138 Ohio St.3d 71, 2013-Ohio-4544, ¶ 9.

                                      Analysis

       {¶10} Since the assignments of error are interrelated, and all concern

elements of the negligence claim, we consider them together.            Furthermore,

because the facts, taken only from Middleton’s deposition, are not in dispute, we

are left with determining whether Defendants were entitled to a judgement as a

matter of law on Middleton’s negligence claim.

       {¶11} A negligence claim requires that the plaintiff prove the following

elements: “(1) the existence of a legal duty, (2) the defendant’s breach of that duty,

and (3) injury that is the proximate cause of the defendant’s breach.” Wallace v.

Ohio Dept. of Commerce, 96 Ohio St.3d 266, 2002-Ohio-4210, 773 N.E.2d 1018,

¶ 22. In negligence cases, summary judgment in favor of the defendant may be

granted if the trial court finds as a matter of law that (a) the defendant was not

negligent; or (b) the defendant’s negligence, if any, was not the proximate cause of

plaintiff’s injury; or (c) the plaintiff was negligent and the plaintiff’s negligence

outweighed any of the defendant’s negligence in causing the injury. See Cottrill v.

Knaul, 3d Dist. Marion No. 9-07-12, 2007-Ohio-5196, ¶ 6-7; Riley v. Burnup &

Sims Comtec, Inc., 3d Dist. Allen No. 1-90-113, 1991 WL 216783, *2 (Sept. 12,

1991). The trial court seemed to have found all three options satisfied in favor of

Defendants when it granted summary judgment in this case.

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Case No. 9-15-47


         {¶12} While the trial court did not clearly structure its opinion around the

outlined above negligence principles, the ruling can be read to say that Holbrook

owed no duty of care to Middleton because he had no duty to look for drivers

violating his right of way and therefore, as a matter of law, he was not negligent.

Assuming that this finding was correct, it would be sufficient for a grant of

summary judgment. Additionally, the trial court determined that Middleton had a

duty to yield to Holbrook, he breached that duty, and this breach was the

proximate cause of his own injuries. Therefore, the trial court concluded that

Middleton’s own negligence could not be outweighed by any possible negligence

by Holbrook.

         {¶13} Within his assignments of error on appeal, Middleton alleges that the

trial court erred in finding a lack of negligence on the part of Holbrook because of

its incorrect conclusion that no duty of care existed. He also challenges the trial

court’s conclusion that Middleton was negligent per se and that his negligence was

the sole or overwhelming proximate cause of his injuries. We analyze each issue

below.

                                Holbrook’s Negligence

         {¶14} As stated above, the trial court’s ruling indicates that Holbrook could

not be found negligent because he owed no duty of care to Middleton. The trial

court based this conclusion on the 1968 holding of the Ohio Supreme Court:

         “the driver of a motor vehicle proceeding over a through street or
         highway in a lawful manner has the absolute right of way over a
                                          -8-
Case No. 9-15-47


       vehicle on an intersecting stop street, and the former may assume
       that the latter will respect and observe such right of way.”

(Emphasis added.) Timmins, 14 Ohio St.2d at 127, 236 N.E.2d 665.

       {¶15} It is important to note that in deciding Timmins, the Ohio Supreme

Court relied on a version of R.C. 4511.01(FF) that existed “prior to October 15,

1965,” and defined a “ ‘through highway’ as ‘every highway or portion thereof at

the entrance to which vehicular traffic from intersecting highways is required by

law to stop before entering or crossing the same except as provided in Section

4511.65 of the Revised Code.’ ” Id. at 126-127. Under this definition, Holbrook

was not on a “through street or highway” but rather, “on an intersecting stop

street.”

       {¶16} Furthermore, it does not appear that Holbrook was proceeding “in a

lawful manner.” R.C. 4511.38 states:

       (A) No person shall start a vehicle, streetcar, or trackless trolley
       which is stopped, standing, or parked until such movement can be
       made with reasonable safety.

Violation of this statute is a minor misdemeanor. R.C. 4511.38(B). Marion City

Code 331.13 has substantially similar language. Another section of the Revised

Code states,

       No person shall turn a vehicle or trackless trolley or move right or
       left upon a highway unless and until such person has exercised due
       care to ascertain that the movement can be made with reasonable
       safety * * * .




                                       -9-
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R.C. 4511.39(A).     Violation of this statute is a minor misdemeanor.           R.C.

4511.39(B). Marion City Code 331.14 has almost identical language. Middleton

alleged that Holbrook turned his vehicle without ascertaining whether such

movement could be made with reasonable safety, because he only looked left.

Middleton’s testimony was not disputed during the summary judgment

proceedings. Therefore, it appears that that Holbrook was not proceeding “in a

lawful manner” as required under Timmins.

       {¶17} Because the facts of this case do not support a finding that Holbrook

was on a through highway or that he was proceeding in a lawful manner, the Ohio

Supreme Court’s reasoning in Timmins cannot be used to determine that he had an

absolute right of way and thus, owed no duty of care to Middleton.

       {¶18} We further note that the Supreme Court’s recognition of “the

absolute right of way over a vehicle on an intersecting stop street,” does not equate

to a recognition that a person with the “absolute right of way” has no duty to

others on the road. See Markley v. Knutson, 3d Dist. Marion No. 9-96-29, 1996

WL 546875, *3 (Sept. 26, 1996) (recognizing that “a driver can not proceed along

a roadway blindly with no regard for others”). The Ohio Supreme Court has long

recognized that

       a situation might arise whereby an obligation of care would arise
       upon the part of the driver having the right of way. If he should
       discover, just as he was approaching or entering the intersection, that
       the driver of the vehicle on his left was violating the law, and was
       not yielding to him the right of way, it then became the duty of the
       driver lawfully having the right of way not to wantonly injure the
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Case No. 9-15-47


       other, but to use ordinary care to avoid injuring him, after
       discovering and appreciating the dangerous peril in which the
       negligent driver had placed himself.

(Emphasis added.) Morris v. Bloomgren, 127 Ohio St. 147, 158-159, 187 N.E. 2

(1933). This legal principle was reaffirmed by the Timmins court, which quoted

the syllabus of Morris:

       “If however the former (driver of a motor vehicle having the right of
       way), just as he is approaching or entering the intersection, discovers
       that the latter is not yielding the right of way and has thereby placed
       himself in a perilous situation, it becomes the duty of the former to
       use ordinary care not to injure the latter after becoming aware of his
       perilous situation.”

Timmins, 14 Ohio St.2d at 127, 236 N.E.2d 665, quoting Morris at paragraph five

of the syllabus.

       {¶19} “Typically, a duty may be established by common law, legislative

enactment, or by the particular facts and circumstances of the case. * * * Where a

legislative enactment imposes a specific duty for the safety of others, failure to

perform that duty is negligence per se.” Chambers v. St. Mary’s School, 82 Ohio

St.3d 563, 565, 1998-Ohio-184, 697 N.E.2d 198 (1998). Several statutes placed

an affirmative duty on Holbrook to look right before turning, including but not

limited to: R.C. 4511.38(A), and its equivalent Marion City Code 331.13(A); R.C.

4511.39(A), and its equivalent Marion City Code 331.14(A). The trial court did

not consider these statutes before holding that Holbrook had no duty to look right

before turning.



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        {¶20} The trial court failed to properly analyze the element of duty in

Middleton’s claim against Holbrook and thus, its conclusion that Holbrook was

not negligent as a matter of law was incorrectly reached.

                              Middleton’s Negligence

        {¶21} In addition to finding that Holbrook was not negligent, the trial court

found that summary judgment was proper because Middleton was negligent per se

and that his negligence was the overwhelming proximate cause of his own

injuries. “The concept of negligence per se allows the plaintiff to prove the first

two prongs of the negligence test, duty and breach of duty, by merely showing that

the defendant committed or omitted a specific act prohibited or required by

statute.” Lang v. Holly Hill Motel, Inc., 122 Ohio St.3d 120, 2009-Ohio-2495, 909

N.E.2d 120, ¶ 15, citing Chambers, 82 Ohio St.3d at 565-566 1998-Ohio-184, 697

N.E.2d 198. But the plaintiff in a negligence per se action still has to prove

proximate cause and damages. Sikora v. Wenzel, 88 Ohio St.3d 493, 496, 2000-

Ohio-406, 727 N.E.2d 1277. Additionally, “a negligence-per-se violation will not

preclude defenses and excuses, unless the statute clearly contemplates such a

result.” Robinson v. Bates, 112 Ohio St.3d 17, 2006-Ohio-6362, 857 N.E.2d 1195,

¶ 23.

        {¶22} It appears that the trial court found Middleton negligent per se for

failing to yield the right-of-way to Holbrook, and thus, violating Marion City Code

373.07(B) and R.C. 4511.44(A). (See R. at 25, at 3-5.) The trial court engaged in

                                        - 12 -
Case No. 9-15-47


an unusual analysis with respect to the right-of-way issue, indicating that it was

“undisputed * * * that the Plaintiff failed to yield the right of way to the Defendant

* * * .” (R. at 25, at 5.) This statement incorrectly suggests that both parties

conceded that Middleton violated Holbrook’s right-of-way.

       {¶23} Although the facts of this case were undisputed, the issue of who had

the-right-of way in this factual scenario was at the heart of the dispute in the trial

court. In his complaint, Middleton alleged that Holbrook failed to yield to his

right-of-way.    (R. at 1, ¶ 9-14.)     In their motion for summary judgment,

Defendants argued that Holbrook had the right-of-way and that Middleton failed

to yield. (R. at 19, at 6, 10-11.) In his opposition to the summary judgment

motion, Middleton alleged that both he and Holbrook had to yield to the traffic

proceeding “uninterrupted” on Church Street and because Holbrook was stopped

at a stop sign, he did not have the right-of-way. (R. at 23, at 12.) Middleton

further asserted that in order to observe the right-of-way, he stopped at the

intersection and waited “for a couple of minutes” before proceeding. (R. at 23, at

2.) He testified in his deposition that he “waited and waited on him,” and “[s]o

finally there was a chance to cross the street and he was still looking the other

way.” (Middleton Dep. at 24, Aug. 10, 2015.) Middleton argued that in this

situation, the right of way shifted to him because Holbrook did not proceed in an

uninterrupted manner, was not moving, and was not facing in Middleton’s

direction. (R. at 23, at 12.)

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Case No. 9-15-47


       {¶24} Our observations above expressly contradict the accuracy of the trial

court’s statement that the issue of violating the right-of-way was “undisputed,” or

conceded by the parties. Accordingly, it was an error to find that Middleton was

negligent per se based on this incorrect statement.

       {¶25} It appears that multiple statutes might be applicable to the right-of-

way determination in the factual scenario that occurred here, including but not

limited to: R.C. 4511.43(A) (“After having stopped, the driver shall yield the

right-of-way to any vehicle in the intersection or approaching on another roadway

so closely as to constitute an immediate hazard during the time the driver is

moving across or within the intersection or junction of roadways.”); R.C.

4511.44(A) (“The operator of a vehicle, streetcar, or trackless trolley about to

enter or cross a highway from any place other than another roadway shall yield the

right of way to all traffic approaching on the roadway to be entered or crossed.”);

Marion City Code 373.07(B) (“Every person operating a bicycle shall: * * * (B)

Yield the right of way to pedestrian and vehicular traffic upon the roadway as

lawfully required.”).   While it might have been proper for the trial court to

evaluate all applicable statutes and determine that in this factual scenario

Holbrook had the right-of-way and Middleton failed to yield, the trial court did not

do that.




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                                 Proximate Cause

       {¶26} Similarly, the trial court was incorrect when it stated that the issue of

the proximate cause of the crash was “undisputed,” again suggesting that the

parties conceded the issue. (R. at 25, at 5.) Middleton alleged in his complaint

that Holbrook’s failure to yield to his right-of-way was the proximate cause of the

accident and his resulting injuries. (R. at 1, ¶ 9-14.) In their motion for summary

judgment, Defendants argued that Middleton’s failure to yield was “the sole

proximate cause of his injuries.” (R. at 19, at 6, 10-11.) In his opposition to the

summary judgment motion, Middleton expressly alleged that any failure to yield

on his side “was not the proximate cause of this accident.” (R. at 23, at 12.)

Although the facts of the case were not in dispute, the record contradicts the trial

court’s conclusion that the issue of proximate cause was “undisputed.”

       {¶27} “[W]hen the facts surrounding the issue of proximate cause are

disputed or convoluted, the issue of proximate cause is best left for the trier of

fact.” (Emphasis added.) Kemerer v. Antwerp Bd. of Edn., 105 Ohio App.3d 792,

796, 664 N.E.2d 1380 (3d Dist.1995). Nevertheless, “where reasonable minds

could not differ as to the matter of proximate cause because circumstances clearly

indicate an obvious cause and effect relationship, the issue of proximate cause may

be determined as a matter of law.” (Emphasis sic.) Mowery v. McCracken, 3d

Dist. Hancock No. 5-85-33, 1987 WL 16262, *3 (Aug. 31, 1987); see id. at *7

(finding that “even assuming negligence on the part of Defendant * * * Plaintiff’s

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Case No. 9-15-47


own conduct * * * was either the sole proximate cause of his injury or at the very

least, outweighed any negligence of the Defendant as a matter of law”); Cottrilll,

3d Dist. Marion No. 9-07-12, 2007-Ohio-5196, at ¶ 15; Hemmelgarn v. Vagedes,

3d Dist. Mercer No. 10-04-14, 2005-Ohio-673, ¶ 15.

       {¶28} Construing the undisputed evidence in this case most strongly in

Middleton’s favor, as we must, we are not convinced that reasonable minds could

only conclude that Middleton was the sole proximate cause of the accident, or that

Middleton’s negligence outweighed any of Holbrook’s negligence in causing the

accident. Rather, the “convoluted” facts here would be “best left for the trier of

fact.” Kemerer at 796.

       {¶29} Because the trial court erred in its conclusions, summary judgment

was improperly granted. Accordingly, we sustain the assignments of error.

                                    Conclusion

       {¶30} Having reviewed the arguments, the briefs, and the record in this

case, we find error prejudicial to Appellant in the particulars assigned and argued.

The judgment of the Common Pleas Court of Marion County, Ohio is therefore

reversed and the cause is remanded to the trial court for further proceedings

consistent with this opinion.

                                                           Judgment Reversed and
                                                                Cause Remanded
SHAW, P.J. and ROGERS, J., concur.

/hls

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