[Cite as Pittman v. Office of Atty. Gen., 2012-Ohio-6346.]




                                                             Court of Claims of Ohio
                                                                                     The Ohio Judicial Center
                                                                             65 South Front Street, Third Floor
                                                                                        Columbus, OH 43215
                                                                              614.387.9800 or 1.800.824.8263
                                                                                         www.cco.state.oh.us



YOLANDA PITTMAN

        Plaintiff

        v.

OFFICE OF ATTORNEY GENERAL, et al.

        Defendants

Case No. 2011-03103

Judge Joseph T. Clark

DECISION

        {¶ 1} Plaintiff brought this action alleging negligence.1 The issues of liability and
damages were bifurcated and the case proceeded to trial on the issue of liability.2
        {¶ 2} This case arises out of a motor vehicle collision involving plaintiff’s vehicle
and a Dodge minivan driven by Detective Sergeant Joshua Staats.                              The collision
occurred on Harvard Avenue in Cleveland, Ohio, on July 22, 2010. Plaintiff and Staats
were both traveling eastbound on Harvard Avenue when Staats attempted to make a
right hand turn and struck plaintiff’s vehicle near the driver’s side door.
        {¶ 3} As an initial matter, the parties stipulated that Staats, an employee of the
Washington County Sheriff’s Department, is considered an employee of the state for the



        1
         Throughout this decision, “defendant” shall be used to refer to Office of Attorney General.
        2
         The court allowed the record to remain open to obtain the deposition testimony of Joshua Staats.
The court makes the following rulings on the objections contained in the deposition transcript filed with the
court on May 22, 2012:
        1) Page 13, Line 10: OVERRULED.
        2) Page 16, Line 7: OVERRULED.
        3) Page 16, Line 11: OVERRULED.
        4) Page 16, Line 19: SUSTAINED.
        5) Page 19, Line 13: OVERRULED.
Case No. 2011-03103                                  -2-                                        DECISION

purposes of this litigation inasmuch as he was conducting duties for an organized crime
task force with defendant at the time of the accident.3
        {¶ 4} Plaintiff testified that she was stopped at a traffic light waiting to turn left
onto Harvard Avenue and Staats’ vehicle was located three vehicles in front of her.
Both Staats and plaintiff turned left onto Harvard Avenue traveling east.                             Plaintiff
admitted that eastbound Harvard Avenue does not have road markings indicating two
lanes of travel; it has a double yellow line separating the eastbound and westbound
roadway but no other lane markings. However, plaintiff testified that Harvard Avenue
has two unmarked lanes traveling eastbound and that she was traveling in the right
lane. Plaintiff testified that the speed limit was 25 miles per hour and that both she and
Staats were driving the speed limit.
        {¶ 5} Plaintiff testified that after Staats turned left onto Harvard Avenue, he was
driving in both of the eastbound lanes and that cars were honking at him and he
eventually moved over to the left lane. According to plaintiff, the two vehicles in front of
her passed Staats on the right. Plaintiff testified that she never attempted to pass
Staats on the right, but that she was behind his vehicle driving in what she claims was
the right lane from the time that she turned onto Harvard Avenue. Plaintiff admitted that
Staats had turned on the right turn signal before the two vehicles in front of her passed
him and she saw the right turn signal when she was driving next to him.                               Plaintiff

        3
            R.C. 177.02(D) states: “A task force investigatory staff, during the period of the investigation for
which it is assembled, is responsible only to the task force director and shall operate under the direction
and control of the task force director. Any necessary and actual expenses incurred by a task force
director or investigatory staff, including any such expenses incurred for food, lodging, or travel, and any
other necessary and actual expenses of an investigation into organized criminal activity conducted by a
task force, shall be paid by the commission. For purposes of workers’ compensation and the allocation of
liability for any death, injury, or damage they may cause in the performance of their duties, a task force
director and investigatory staff, during the period of the investigation for which the task force is
assembled, shall be considered to be employees of the commission and of the state. However, for
purposes of compensation, pension or indemnity fund rights, and other rights and benefits to which they
may be entitled, a task force director and investigatory staff, during the period of the performance of their
duties as director and investigatory staff, shall be considered to be performing their duties in their normal
capacity as prosecuting attorney, assistant prosecuting attorney, sheriff, deputy sheriff, chief law
enforcement officer or member of a law enforcement agency of a municipal corporation or township, or
agent of the bureau of criminal identification and investigation.” (Emphasis added.)
Case No. 2011-03103                         -3-                               DECISION

explained that Staats attempted to make a right hand turn from Harvard Avenue and his
vehicle hit her vehicle near the driver’s side door.   Staats testified by deposition. He
explained that he lives in Marietta, Ohio, and on the day of the accident he was driving
in Cleveland on assignment with the task force. Staats admitted that he was not familiar
with Cleveland and that he had never driven on Harvard Avenue prior to July 2010.
       {¶ 6} According to Staats, as he drove on Harvard Avenue, he believed there was
only one lane of eastbound travel because there were no lane markings on the road
showing two lanes of travel. Staats admitted that when he made the right hand turn
from Harvard Avenue to Whitehead Avenue, he was not driving along the right curb
because he thought that the space was for cars to park along the side of the road.
       {¶ 7} Plaintiff alleges that defendant was negligent and that its negligence was
the proximate cause of the collision.
       {¶ 8} In order for plaintiff to prevail upon her claim of negligence, she must prove
by a preponderance of the evidence that defendant owed her a duty, that defendant’s
acts or omissions resulted in a breach of that duty, and that the breach proximately
caused her injuries. Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d 79, 2003-Ohio-
2573, ¶ 8, citing Menifee v. Ohio Welding Prods., Inc., 15 Ohio St.3d 75, 77 (1984).
“Clearly, all motorists have a duty to observe the environment in which they drive, not
only in front of their vehicle, but to the sides and rear as the circumstances may
warrant.” Hubner v. Sigall, 47 Ohio App.3d 15, 17 (10th Dist.1988), citing State v.
Ward, 105 Ohio App. 1 (3rd Dist.1957); Scott v. Marshall, 90 Ohio App. 347, 365 (12th
Dist.1951). “[M]otorists traveling in the same direction have a common law duty to
exercise their respective rights with due regard for the safety of each other.” Id. “There
is no duty to lookout for persons violating the traffic laws, however. * * * One may
rightfully assume that others are obeying the traffic laws. Acting in accordance with this
assumption is not negligent unless the actor has notice or knowledge that others are not
obeying the law.”    Weisbarth v. Smeal, 8th Dist. No. 63347 (July 22, 1993), citing
Swoboda v. Brown, 129 Ohio St. 512, 524 (1935).
Case No. 2011-03103                          -4-                               DECISION

       {¶ 9} R.C. 4511.28 states, in part:
       {¶ 10} “(A) The driver of a vehicle or trackless trolley may overtake and pass
upon the right of another vehicle or trackless trolley only under the following conditions:
       {¶ 11} “(1) When the vehicle or trackless trolley overtaken is making or about to
make a left turn;
       {¶ 12} “(2) Upon a roadway with unobstructed pavement of sufficient width for two
or more lines of vehicles moving lawfully in the direction being traveled by the
overtaking vehicle.
       {¶ 13} “(B) The driver of a vehicle or trackless trolley may overtake and pass
another vehicle or trackless trolley only under conditions permitting such movement in
safety. The movement shall not be made by driving off the roadway.”              (Emphasis
added.)
       {¶ 14} R.C. 4511.36(A)(1) states: “The driver of a vehicle intending to turn at an
intersection shall be governed by the following rules: (1) Approach for a right turn and a
right turn shall be made as close as practicable to the right-hand curb or edge of the
roadway.”
       {¶ 15} R.C. 4511.39(A) states, in part: “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 nor
without giving an appropriate signal in the manner hereinafter provided.”
       {¶ 16} R.C. 4511.28, 4511.36 and 4511.39 all prescribe rules of conduct. See
Westervelt v. Rooker, 4 Ohio St.3d 146 (1983), Eisenhuth v. Moneyhon, 161 Ohio St.
367 (1954), Stora v. Christenson, 8th Dist. No. 46168 (Dec. 29, 1983). “[W]here there
exists a legislative enactment expressing for the safety of others, in general or abstract
terms, a rule of conduct, negligence per se has no application, and liability must be
determined by the application of the test of due care as exercised by a reasonably
prudent person under the circumstances of the case.” Eisenhuth, supra, at 374.
Case No. 2011-03103                               -5-                                     DECISION

        {¶ 17} Plaintiff maintains that eastbound Harvard Avenue is wide enough for two
lanes of traffic. Photographs of the roadway in question show that Harvard Avenue is
not marked with two lanes of eastbound travel. Examining Plaintiff’s Exhibit 3, both
Staats and plaintiff testified that the photograph shows a tractor-trailer parked on
eastbound Harvard Avenue being passed by another vehicle that is nearly crossing the
double yellow line in the center of the roadway. As evidenced by the photographs, the
court finds that there is not sufficient pavement for two or more lanes of travel.4 The
court finds that plaintiff attempted to pass Staats on the right when there was not
“pavement of sufficient width for two or more lanes of traffic” and that she failed to
exercise due care. R.C. 4511.28(A)(2).5
        {¶ 18} Furthermore, the court finds that plaintiff did not pass Staats on the right
“under conditions permitting such movement in safety.”                  R.C. 4511.28(B).        Plaintiff
admitted that as she traveled next to Staats immediately before the accident, she saw
that he had his right turn signal engaged and that he was slowing down.
        {¶ 19} Plaintiff testified that Staats explained to her following the accident that her
vehicle was in his “blind spot.” The court finds that Staats did not have knowledge of
plaintiff’s unlawful passing.
        {¶ 20} The court further finds that Staats acted reasonably. Staats testified that
he was not driving near the right curb when he made the right hand turn because he
thought that the extra space was for cars to park on the side of the road. Plaintiff
testified that she thought Staats was trying to merge into the right lane when he had his
right turn signal on. Plaintiff had knowledge that Staats had engaged his right turn
signal when she attempted to pass him on the right. Even if the court were to find that



        4
          Staats acknowledged during cross-examination that the diagram contained in the police report
from the accident drew two lanes of traffic on eastbound Harvard Avenue. However, Staats also testified
that comparing the diagram to the photographs contained in Plaintiff’s Exhibits 1-3, the photographs show
that there are not two marked lanes of eastbound or westbound travel.
         5
          Plaintiff’s Exhibit 1, another photograph of Harvard Avenue, shows a diamond-shaped sign
stating “right lane closed ahead” in the westbound direction. The court finds that this photograph is not
Case No. 2011-03103                                 -6-                                       DECISION

Staats violated R.C. 4511.36 and 4511.39, plaintiff had notice that Staats was going to
make a right hand turn and should have yielded to the right of way. See Weisbarth,
supra.
         {¶ 21} Furthermore, the court finds that plaintiff’s negligence in passing on the
right when there was only one lane of traffic and when she had notice that defendant
had engaged the right turn signal was the sole proximate cause of the accident.
         {¶ 22} Plaintiff has failed to prove by a preponderance of the evidence that
Staats’ actions constituted a failure to exercise due care under the circumstances.
Based upon the evidence presented in the case, the court concludes that plaintiff’s
negligence was the sole proximate cause of the accident. Accordingly, judgment shall
be rendered in favor of defendants.




persuasive in establishing that Harvard Avenue has two lanes of travel in the eastbound direction
because it is in the opposite direction that plaintiff and Staats were traveling at the time of the accident.
Case No. 2011-03103                       -7-                                   DECISION




                                             Court of Claims of Ohio
                                                                       The Ohio Judicial Center
                                                               65 South Front Street, Third Floor
                                                                          Columbus, OH 43215
                                                                614.387.9800 or 1.800.824.8263
                                                                           www.cco.state.oh.us



YOLANDA PITTMAN

      Plaintiff

      v.

OFFICE OF ATTORNEY GENERAL, et al.

      Defendants

Case No. 2011-03103

Judge Joseph T. Clark

JUDGMENT ENTRY

      {¶ 23} This case was tried to the court on the issue of liability. The court has
considered the evidence and, for the reasons set forth in the decision filed concurrently
herewith, judgment is rendered in favor of defendants.       Court costs are assessed
against plaintiff. The clerk shall serve upon all parties notice of this judgment and its
date of entry upon the journal.



                                         _____________________________________
                                         JOSEPH T. CLARK
                                         Judge

cc:
Case No. 2011-03103                       -8-                      DECISION



Christopher P. Conomy                      George R. Oryshkewych
Assistant Attorney General                 5566 Pearl Road
150 East Gay Street, 18th Floor            Parma, Ohio 44129
Columbus, Ohio 43215-3130

004
Filed October 2, 2012
Sent to S.C. Reporter February 28, 2013
