[Cite as Crosby v. Radenko, 2011-Ohio-4662.]




          IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO

JESSICA CROSBY                                 :

        Plaintiff-Appellant                    :   C.A. CASE NO. 24343

vs.                                            :   T.C. CASE NO. 09CV9538

DZAMIC RADENKO et al.                          :   (Civil Appeal from
                                                    Common Pleas Court)
        Defendants-Appellees                   :

                                      . . . . . . . . .

                                         O P I N I O N

               Rendered on the 16th day of September, 2011.

                                      . . . . . . . . .

Timothy S. Chappars, Atty. Reg. No.0007122, P.O. Box 280, Xenia,
OH 45385
     Attorney for Plaintiff-Appellant

Patrick McCaffrey, Atty. Reg. No.0067293; Audrey E. Varwig, Atty.
Reg. No. 0073265, 2109 Stella Court, Columbus, OH 43215
     Attorneys for Defendants-Appellees

                                      . . . . . . . . .

GRADY, P.J.:

        {¶ 1} This is an appeal from a summary judgment for the

defendant on the plaintiff’s claim for personal injuries and

property loss arising from a motor vehicle collision.                       The

collision took place on Interstate Route 70, near the exit for
                                                                          2

Englewood, Ohio, during the daylight hours.            A tractor-trailer

owned and operated by Unlimited Freight, Inc. was traveling in

an eastbound direction when its driver, Dzamic Radenko, pulled

to a stop on the berm of the right lane due to         mechanical trouble

of some sort.   Whatever the difficulty was, Radenko subsequently

attempted to reenter the same lane of travel. When he began his

maneuvers to reenter his lane of travel, a passenger vehicle

proceeding in the same lane of travel came to a stop behind the

Unlimited Freight, Inc. tractor-trailer.        Another tractor-trailer

then came to a stop behind the passenger vehicle.

     {¶ 2} Jessica Crosby was driving a Honda Civic eastbound in

the same lane of travel when she came upon the line of vehicles

stopped ahead of her.    Unable to stop to avoid colliding with the

tractor-trailer last in line, Crosby veered into the left-hand

lane.   She lost control of her vehicle, causing it to veer back

into the right-hand lane and collide with the tractor-trailer owned

by Unlimited Freight, Inc.     The passenger vehicle and the other

tractor-trailer   that   had   stopped   were    not    involved   in   the

collision.

     {¶ 3} Crosby commenced an action against Radenko and Unlimited

Freight, Inc., on claims for relief for bodily injuries and property

loss, alleging negligence on the part of Radenko and Unlimited

Freight, Inc. in the operation of its tractor-trailer, and against
                                                                     3

Unlimited Freight, Inc., in failing to train    Radenko.   Following

responsive pleadings and depositions, the Defendants moved for

summary judgment.    The trial court granted that motion, relying

on the rule of intervening/superseding negligence we applied in

Didier v. Johns (1996), 114 Ohio App.3d 746.      Crosby appeals.

      ASSIGNMENT OF ERROR

      {¶ 4} “THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT

IN GRANTING APPELLEE UNLIMITED FREIGHT, INC.’S MOTION FOR SUMMARY

JUDGMENT.”

      {¶ 5} In Didier v. Johns, we held that a plaintiff’s negligence

per se for a violation of the assured clear distance statute,

combined with the lack of any negligence on the part of a third

party involved in a collision, relieved a defendant of liability

for   his    prior   negligent   act,   under    the   doctrine     of

intervening/superseding cause.     We believe that holding merits

reexamination.

      {¶ 6} An act or omission that falls below the particular

standard of conduct required to satisfy a duty of care imposed

by law is negligence.    When that negligence proximately results

in injuries and losses to other persons, the actor is legally liable

to such persons in money damages in an amount that will compensate

them for the injuries and losses each suffered.

      {¶ 7} Evidence of negligence may be prima facie or per se.
                                                                     4

When negligence is prima facie, the evidence of negligence is

subject to rebuttal.     When there is negligence per se, it is

conclusive of that question.    Fightmaster v. Mode (1928), 31 Ohio

App.273.

     {¶ 8} The distinction between negligence and negligence per

se is the means and method of their ascertainment.        “The former

must be found by the jury from the facts, conditions, and

circumstances disclosed by the evidence, while the latter is a

violation of a specific requirement of law or ordinance, the only

fact for determination by the jury being the commission or omission

of the specific act inhibited or required.”         Swoboda v. Brown

(1939), 129 Ohio St. 512, paragraph four of the Syllabus by the

Court.

     {¶ 9} “Where a legislative enactment imposes upon any person

a specific duty for the protection of others, and his neglect to

perform that duty proximately results in injury to such another,

he is negligent per se or as a matter of law.”   Eisenhuth v. Moneyhon

(1954), 161 Ohio St. 367, paragraph two of the Syllabus by the

Court.

     {¶ 10} The rule of Eisenhuth is subject to two qualifications.

 First, “[i]n order for the violation of a statute or ordinance

to constitute negligence per se, the statute or ordinance violated

must be a specific requirement to do or to omit to do a definite
                                                                     5

act; the violation of a statute or ordinance prescribing merely

a rule of conduct is not negligence per se.”    70 Ohio Jurisprudence

3d Negligence, §56.

     {¶ 11} Second, a finding of negligence per se “does not mean

that (such) negligence was the sole proximate cause, or even a

proximate cause, of the (event) that resulted in (the injury and

loss.)” Smiddy v. The Wedding Party, Inc. (1987), 39 Ohio St.3d

35, 40.   The issue is for the jury if reasonable minds could differ

as to the proximate cause of that event.       Id.   Similarly, if the

jury finds that the negligence per se and the negligence of another

party were proximate causes of that event, “the issue of comparative

negligence is for the jury.”    Id.

     {¶ 12} The contributory fault of the plaintiff may be asserted

as an affirmative defense in a negligence action.     R.C. 2315.32(B).

 If established, the plaintiff’s contributory fault does not bar

the plaintiff from recovering damages that have directly and

proximately resulted from the tortious conduct of one or more other

persons, if the contributory fault of the plaintiff was not greater

than the combined tortious conduct of all other persons from whom

the plaintiff seeks recovery in the action and of all other persons

from whom the plaintiff does not seek recovery in the action.

R.C. 2315.33.

     {¶ 13} The assured clear distance statute, R.C. 4511.21(A)
                                                                   6

states:

     {¶ 14} “No person shall operate a motor vehicle, trackless

trolley, or streetcar at a speed greater or less than is reasonable

or proper, having due regard to the traffic, surface, and width

of the street or highway and any other conditions, and no person

shall drive any motor vehicle, trackless trolley, or streetcar

in and upon any street or highway at a greater speed than will

permit the person to bring it to a stop within the assured clear

distance ahead.”

     {¶ 15} Violation of the assured clear distance statute, R.C.

4511.21, is negligence per se.   Piper v. McMillan (1999), 134 Ohio

App.3d 180.    “Violation of the statute and a finding of negligence

per se depends on whether there is evidence that the driver collided

with an object which (1) was ahead of him in this path of travel,

(2) was stationary or moving in the same direction as the driver,

(3) did not suddenly appear in the driver’s path, and (4) was

reasonably discernible.”    Junge v. Brothers (1985), 16 Ohio St.3d

1, 3.     “Where conflicting evidence is introduced as to any one

of the elements necessary to constitute a violation of the (assured

clear distance) statute, a jury question is created.”     Tomlinson

v. Cincinnati (1983), 4 Ohio St.3d 66, 69.

     {¶ 16} The trial court found that Plaintiff-Appellant Crosby

was negligent per se because she violated the assured clear distance
                                                                           7

statute.    Crosby argues that the trial court erred in granting

summary judgment for Unlimited Freight, Inc. and its driver,

Radenko, because       “[a] jury should have been permitted to find

that [her] actions in taking emergency avoidance maneuvers were

not negligent . . .”        A sudden emergency can relieve an actor of

negligence per se.          The trial court rejected that contention,

relying on Cox v. Polster (1963), 174 Ohio St. 224, which held:

     {¶ 17} “Where three motor vehicles are proceeding in the same

direction in the same lane of traffic, the fact that the first

car comes to a sudden stop causing the second car to swerve into

another lane of traffic does not create a sudden emergency as to

the third car so as to relieve the driver thereof from compliance

with the assured-clear-distance-ahead statute in relation to the

stopped first car.”         Syllabus by the Court.

     {¶ 18} We agree with the trial court.       R.C. 4511.21(A) imposed

a duty on Crosby to maintain an assured clear distance between

her car and the tractor-trailer immediately in front of her, which

came to a stop in Crosby’s lane of travel.           That tractor-trailer

did not suddenly appear in Crosby’s path after returning in to

the road.       See: Ziegler v. Wendel Poultry Services, Inc. (1993),

67 Ohio St.3d 10.       Neither was the tractor-trailer concealed by

fog, as in Ziegler.     Instead, it was reasonably discernible, having

stopped    in    Crosby’s    path   during   daylight   hours   and   absent
                                                                              8

extraordinary weather conditions.           Piper v. McMillan.        The fact

that Crosby could not see Unlimited Freight, Inc.’s tractor-trailer

at the head of the line of vehicles is immaterial to Crosby’s R.C.

4511.21(A)     violation,    notwithstanding     the    fact   that    it   was

Unlimited Freight, Inc.’s tractor-trailer that Crosby subsequently

collided with.    The trial court did not err when it held that Crosby

was negligent per se in operating her vehicle as she did.

     {¶ 19} The further issue to be determined is whether the trial

court, having found Crosby negligent per se, erred when it granted

summary judgment for Unlimited Freight, Inc. on the issue of

proximate cause by applying our holding in Didier v. Johns with

respect   to    the    doctrine   of   intervening/superseding          cause.

Regarding that doctrine, in Berdyck v. Shinde (1993), 66 Ohio St.3d

573, the Supreme Court wrote, at 584-585:

     {¶ 20} “[30] [31] The intervention of a responsible human agency

between a wrongful act and an injury does not absolve a defendant

from liability if that defendant's prior negligence and the

negligence of the intervening agency co-operated in proximately

causing the injury. If the original negligence continues to the

time of the injury and contributes substantially thereto in

conjunction with the intervening act, each may be a proximate,

concurring     cause   for   which   full   liability    may   be     imposed.

‘Concurrent negligence consists of the negligence of two or more
                                                                  9

persons concurring, not necessarily in point of time, but in point

of consequence, in producing a single indivisible injury.’ Garbe

v. Halloran (1948), 150 Ohio St. 476, 38 O.O. 325, 83 N.E.2d 217,

paragraph one of the syllabus.

     {¶ 21} “[32] [33] In order to relieve a party of liability,

a break in the chain of causation must take place. A break will

occur when there intervenes between an agency creating a hazard

and an injury resulting therefrom another conscious and responsible

agency which could or should have eliminated the hazard. Hurt v.

Charles J. Rogers Transp. Co. (1955), 164 Ohio St. 323, 58 O.O.

119, 130 N.E.2d 824, paragraph one of the syllabus; Thrash v.

U-Drive-It Co. (1953), 158 Ohio St. 465, 49 O.O. 402, 110 N.E.2d

419, paragraph two of the syllabus. However, the intervening cause

must be disconnected from the negligence of the first person and

must be of itself an efficient, independent, and self-producing

cause of the injury.”

     {¶ 22} In Hurt v. Charles J. Rogers Transportation Co., the

manufacturer of forgings had negligently packaged them in a box.

 The box was given to a trucking company for shipment.   Along the

way, the box broke open.   The truck driver discovered the problem

and attempted to repair the box.   The attempt failed and the box

again broke open, allowing one of the forgings to crash through

the windshield of a following car.    The Supreme Court held that
                                                                   10

the manufacturer, though it had negligently packed the forgings,

was relieved of liability by the truck driver’s intervening

negligence.    The court reasoned:

     {¶ 23} “Where there intervenes between an agency creating a

hazard and an injury resulting from such hazard another conscious

and responsible agency which could or should have eliminated the

hazard, the original agency is relieved from liability. A break

in the chain of causation thereby takes place which operates to

absolve the original agency.”    Paragraph one of the Syllabus by

the court.

     {¶ 24} In Thrash v. U-Drive-It Co., the owner of a motor vehicle

sold it to a dealer, who resold it to the plaintiff.   The plaintiff

was injured in an accident caused by a defect in the vehicle.

He sued the manufacturer, the prior owner, and the used car dealer.

 The Supreme Court held that the prior owner was not legally liable,

writing:

     {¶ 25} “Where there intervenes between an agency creating a

hazard and an injury resulting from such hazard another conscious

and responsible agency which could or should have eliminated the

hazard, the original agency is relieved from liability. A break

in the chain of causation thereby takes place which operates to

absolve the original agency.

     {¶ 26}   “*    *     *
                                                                     11

     {¶ 27} “Although a dealer in used motor vehicles is not an

insurer of the safety of the vehicles he sells, he is generally

under a duty to exercise reasonable care in making an examination

thereof to discover defects therein which would make them dangerous

to users or to those who might come in contact with them, and upon

discovery to correct those defects or at least give warning to

the purchaser. Such rule is of particular significance where the

sale of such a vehicle is accompanied by representations or

warranties as to its fitness for use.”       Paragraphs two and four

of the Syllabus by the Court.

     {¶ 28} Hurt and Thrash illustrate a significant point.        The

“agency” that intervenes between the negligence of a primary

tortfeasor   and   the   injuries   that   could   result   from   that

tortfeasor’s negligence must have had a capacity to prevent that

injury from occurring, and breached a duty to do so through the

agency’s own negligent act or omission.    Several cases have applied

that requirement to chain-reaction collisions involving multiple

vehicles similar in their facts to Didier v. Johns and the present

case.

     {¶ 29} In Shinaver v. Szymanski (1984), 14 Ohio St.3d 51, a

multi-vehicle accident occurred when Szymanski, the driver of the

lead vehicle in a line of five vehicles, lost control and her vehicle

came to rest after striking a guard rail.          The drivers of two
                                                                   12

passenger vehicles following behind the lead vehicle were able

to stop, but a tractor-trailer next in line was not.             The

tractor-trailer collided with the vehicle in front of it, pushing

it and then the vehicle second in line into the Szymanski’s lead

vehicle.   The last vehicle in line, driven by Shinaver, struck

the rear of the tractor-trailer.     Shinaver was injured and his

spouse was killed.

     {¶ 30} Shinaver commenced an action for negligence and wrongful

death against Szymanski and others allegedly at fault.     The trial

court granted summary judgment for the defendants on a finding

that the plaintiff, Shinaver, was contributorily negligent in

failing to maintain an assured clear distance ahead in violation

of R.C. 4511.21(A), relieving the defendants of liability.       The

court of appeals affirmed.   The Supreme Court reversed, in part,

finding that the trial court erred in failing to apply the

principles of comparative negligence required by statute.

     {¶ 31} With respect to the drivers of the two passenger vehicles

following behind the lead vehicle driven by Szymanski, both of

which safely came to a stop, the Supreme Court held that neither

 driver was at fault because “[t]here was no evidence whatsoever

that any course of conduct reasonably available to (them) could

have prevented the accident in question, nor that their conduct

had any causal connection with plaintiff’s injuries or his wife’s
                                                                             13

death.”    Id., at p. 54.       Therefore, the summary judgment in their

favor   was    affirmed.        With    respect   to   the    driver   of   the

tractor-trailer that struck the two passenger vehicles that had

stopped,      and    the   plaintiff,      Shinaver,     who     struck     the

tractor-trailer, the Supreme Court held that both were negligent

per se for violation of the assured clear distance statue, R.C.

4511.21(A).      The Supreme Court further held:

     {¶ 32} “Where the plaintiff driver is travelling immediately

behind the defendant driver, and both parties are negligent per

se for failing to maintain the assured clear distance ahead in

violation of R.C. 4511.21, the question of whether the negligence

of either party was the proximate cause of the ensuing collision,

in which      the plaintiff driver sustained personal injuries, is

for jury determination.         The defendant driver immediately ahead

of plaintiff has no right to summary judgment.”                Id., at p. 55.

     {¶ 33} In      Shinaver,     the    respective     and     proportionate

negligences of the plaintiff and the driver of the tractor-trailer

were necessarily to be weighed pursuant to R.C. 2315.34 on

comparative negligence principles in determining the compensatory

damages recoverable by the plaintiff from all defendants, including

the defendant driver of the lead vehicle, Szymanski.             The doctrine

of intervening/superseding cause did not apply.                  The Seventh

District Court of Appeals wrote: “The import of Shinaver is that
                                                                 14

in a multivehicle collision case, the driver of the first or lead

vehicle could be held liable for damages to vehicles following

the driver if he/she was negligent.”     Piper v McMillan (1999),

134 Ohio App.3d 180, 194.    Two cases cited for that proposition

in Piper, both decisions of the Tenth District Court of Appeals,

illustrate why the doctrine of intervening/superseding cause does

not apply in that context.

     {¶ 34} In Grange Mutual Casualty Company v. Fleming (1982),

8 Ohio App.3d 164, three vehicles were involved in a chain-reaction

collision after the lead vehicle improperly came to a stop on a

roadway, contrary to the directions from posted traffic signs.

The next vehicle was able to come to a stop safely, but the third

vehicle was not.   It struck the second vehicle, pushing the second

vehicle forward into the lead vehicle.    The driver of the second

vehicle was injured, and he commenced an action against the driver

of the lead vehicle on a claim of negligence per se, for failing

to conform to the traffic signs on the highway.      The driver of

the lead vehicle joined the driver of the third vehicle on a

cross-claim, alleging negligence per se arising from an assured

clear distance violation.

     {¶ 35} The trial court in Fleming directed a verdict in favor

of the driver of the third vehicle on the driver of the lead

vehicle’s cross-claim.   The appellate court approved that holding,
                                                                   15

but not the trial court’s further holding that the negligence of

the driver of the lead vehicle was not a proximate cause of the

injuries suffered by the driver of the second vehicle, who was

the plaintiff in the action.   The court reasoned that, on the issue

of foreseeability, reasonable minds could find that the driver

of the lead vehicle “would anticipate that, although a vehicle

immediately following him would be able to stop to avoid a

collision, a third vehicle following the second vehicle would not

be able to do so.”    Id., at 167.

       {¶ 36} The court in Fleming also rejected the view that the

assured clear distance violation of the driver of the third vehicle

was an intervening cause of the plaintiff’s injuries that cut off

the liability of the driver of the lead vehicle to the plaintiff.

 The court held that the negligence of the driver of the lead vehicle

“set in motion the chain of events which ensued, and the causal

connection was not broken by (the driver of the third vehicle’s)

negligence under the circumstances of this case.          At least,

reasonable minds could reach different conclusions on this issue.”

 Id.    The court reasoned that, viewing the evidence most strongly

in favor of the plaintiff, reasonable minds could find that the

drivers of the first and third vehicles were concurrent tortfeasors

whose negligences proximately caused the injuries suffered by the

driver of the second vehicle, the plaintiff in the action.
                                                                         16

     {¶ 37} The   Tenth   District    addressed   the   issue   again   the

following year in Baum v. Augenstein (1983), 10 Ohio App.3d 106.

 In that case, when Defendant Goebel drove his pickup truck onto

Interstate 71 a cattle-feeder fell from the bed of the truck onto

the roadway.      Goebel’s truck was followed by a line of vehicles,

the first of which was able to stop without colliding with the

feeder.   The driver of the vehicle next in line, Plaintiff Baum,

was able to stop her automobile without striking the first vehicle.

 A pickup truck driven by defendant Augenstein struck the rear

of the Baum vehicle, pushing it into the rear of the first

automobile.

     {¶ 38} Baum commenced an action against Goebel and Augenstein.

 The trial court granted a directed verdict for Goebel on his

contention that his negligence in not securing the feeder was not

the proximate cause of Baum’s injuries, those injuries having been

caused by the intervening negligence of Augenstein.             On appeal,

the Tenth District reversed.         The court wrote, at 107:

     {¶ 39} “Construing the evidence most strongly in favor of

plaintiffs, the negligence of Goebel and Augenstein combined to

proximately cause plaintiffs' injuries.           Reasonable minds could

conclude that the chain of events set in motion by Goebel's

negligence unfolded in rapid succession in a continuous and

unbroken fashion, with a result that the causal connection was
                                                                     17

not broken by Augenstein's negligence and he and Goebel were

concurrent tortfeasors.     Reasonable minds could reach different

conclusions upon the issue.”

       {¶ 40} The holdings in Fleming and Baum illustrate a pertinent

distinction    with   respect   to   the   doctrine   of   intervening/

superseding cause.     In order to relieve an actor of liability,

a subsequent force must not only actively operate to produce harm

to another after the actor’s negligent act has been committed:

in addition, the force must be a superseding cause which by its

intervention prevents the prior actor from being liable for the

harm which his antecedent negligence is a substantial factor in

brining about.    Restatement of the Law Second, Torts §§ 440 and

441.    The Restatement further provides, at § 442:

       {¶ 41} “The following considerations are of importance in

determining whether an intervening force is a superseding cause

of harm to another:

       {¶ 42} “(a) the fact that its intervention brings about harm

different in kind from that which would otherwise have resulted

from the actor’s negligence;

       {¶ 43} “(b) the fact that its operation or the consequences

thereof appear after the event to be extraordinary rather than

normal in view of the circumstances existing at the time of its

operation;
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     {¶ 44} “(c) the fact that the intervening force is operating

independently of any situation created by the actor’s negligence,

or, on the other hand, is or is not a normal result of such a

situation;

     {¶ 45} “(d) the fact that the operation of the intervening force

is due to a third person’s act or to his failure to act;

     {¶ 46} “(e) the fact that the intervening force is due to an

act of a third person which is wrongful toward the other and as

such subjects the third person to liability to him;

     {¶ 47} “(f) the degree of culpability of a wrongful act of a

third person which sets the intervening force in motion.”

     {¶ 48} In Baum, at paragraph one of the syllabus, the court

encapsulated these considerations in a simple formula:         “A trial

court errs in directing a verdict in favor of a defendant where

reasonable minds could differ on the issue of proximate cause and

conclude     that   the   defendant   and   another   were   concurrent

tortfeasors.”       And, “[c]oncurrent negligence consists of the

negligence of two or more persons concurring, not necessarily in

point of time, but in point of consequence, in producing a single

indivisible injury.”      Garbe v. Halloran (1948), 150 Ohio St. 476,

paragraph one of the syllabus.

     {¶ 49} In Didier v. Johns, a motorcyclist was injured when he

struck the rear of a school bus he was following after the school
                                                                         19

bus came to a sudden stop to avoid colliding with a vehicle coming

from the opposite direction that had crossed the center line into

the path of the school bus after the driver of the vehicle fell

asleep.    The motorcyclist commenced an action against the driver

of the other vehicle.      The trial court granted summary judgment

for the defendant.

       {¶ 50} On appeal, we affirmed the summary judgment on findings

that the plaintiff motorcyclist violated the assured clear distance

statute    and   was   negligent   per   se,   and   that   the   plaintiff

motorcyclist was therefore 100% responsible for his injuries,

despite the prior negligence of the defendant motorist, because

 the bus driver’s non-negligent actions in stopping the bus broke

the chain of causation.

       {¶ 51} Our rationale in Didier was flawed.     “A break will occur

when there intervenes between an agency creating a hazard and an

injury resulting therefrom another conscious and responsible

agency which could or should have eliminated the hazard.”          Berdyck

v. Shinde, at 585.       In Didier, the hazard was created when the

motorist allowed his vehicle to cross into the path of the school

bus.    If the school bus driver could or should have eliminated

the hazard, but failed to do so, his intervening negligence could

relieve the motorist of liability to the motorcyclist for the

injuries he suffered.      But, there was no basis in the record to
                                                                          20

find that the school bus driver was negligent.              Indeed, we wrote

that “the action of the bus driver in bringing his vehicle to a

natural stop was not negligent.”          Didier, at 753.       It does not

follow that a non-negligent intervening act will break the chain

of causation between a prior negligent act and subsequent injuries

that proximately result from that act.         The Restatement holds that

the intervening act must be “wrongful.”        The non-negligent conduct

of   an   intervening    “actor”   has   no   effect   on    the respective

negligences of the plaintiff and the defendant or defendants, which

must instead be resolved on comparative negligence principles.

Shinaver v. Szymanski.

      {¶ 52} Our rationale in Didier also suffers from another major

flaw.     We held that the plaintiff motorcyclist was not entitled

to   a     comparative    negligence     instruction,        rejecting   the

“seductively appealing, but wholly pernicious, ‘but for’ analysis”

in Fleming and Baum, regarding the issue of probable cause.              We

wrote: “The legal analysis must focus on the direct per se

negligence of the violator of the assured clear distance rule,

as distinct from a physical analysis made pursuant to the ‘but

for’ theory.”     Id. at 754.      In other words, the fact that the

plaintiff was negligent per se is conclusive of the issue of

proximate cause.    However, that pronouncement we made in Didier

is the very view that the Supreme Court rejected in Smiddy when
                                                                   21

it wrote:

     {¶ 53} “Although we hold that appellee’s decedent was negligent

per se, such holding does not mean that his negligence was the

sole proximate cause, or even a proximate cause, of the collision

that resulted in his death.    Construing the evidence most favorably

toward appellee, we hold that reasonable minds could differ as

to the proximate cause(s) of the collision.     Similarly, the issue

of comparative negligence is for the jury if it finds that Hesketh

[a motorist who had stopped and was struck by Smiddy’s vehicle]

was negligent and that the negligence of both Hesketh and Smiddy

were proximate causes of the accident.”        Id., at 40 (internal

citations omitted.)

     {¶ 54} We now believe that our holding in Didier was incorrect.

 There was no intervening wrongful force between the prior

negligence of the defendant motorist whose vehicle crossed the

center line of the road and the plaintiff motorcyclist’s subsequent

assured clear distance violation that could or should have

prevented the injuries the plaintiff motorcyclist suffered when

he struck the school bus.     The plaintiff’s assured clear distance

violation was negligence per se, but its effect on the liability

of the other motorist should have been determined on the basis

of comparative negligence principles, and was not a basis to find

the motorcyclist’s negligence per se was the sole proximate cause
                                                                  22

of the accident.   The practical effect of that finding was to hold

that, as a matter of law, any prior negligent act is too remote

to be a proximate cause of injuries when any other concurrent

negligence occurs.      That outcome confounds the basic rule that

concurrent negligences may result in joint liabilities for both

tortfeasors when each is a proximate cause of injuries.     Berdyck

v. Shinde.   Therefore, our holding in Didier will be limited to

its facts.

     {¶ 55} In the present case, the trial court carefully analyzed

the facts under the rule of Didier.     We cannot fault the court’s

faithful adherence to our flawed precedent.      But, being flawed,

Didier misled the trial court to grant summary judgment in favor

of Unlimited Freight, Inc.

     {¶ 56} The trial court correctly found that Plaintiff Crosby’s

assured clear distance violation was negligence per se.    However,

that finding is not conclusive of the issue of proximate cause.

 Smiddy.   As in Fleming, reasonable minds could find that Radenko,

the driver of the Unlimited Freight, Inc.’s tractor-trailer, would

anticipate that though a vehicle immediately behind the point where

he began to reenter the lane of travel would be able to stop to

avoid a collision, other vehicles in the same line of travel would

not be able to do so.    As in Baum, reasonable minds could conclude

that the chain of events set in motion by the acts or omissions
                                                                 23

of Radenko, the driver of Unlimited Freight’s vehicle, unfolded

in rapid succession in a continuous and unbroken fashion, with

a result that the causal connection between that act or omission

and Crosby’s injuries was not broken by Crosby’s negligence per

se, and that she and the driver of Unlimited Freight, Inc.’s

tractor-trailer   were   concurrent    tortfeasors.       In   that

circumstance, the effect of their concurrent negligence on the

liability of Unlimited Freight, Inc. for Crosby’s injuries must

be resolved by a jury on comparative negligence principles.    R.C.

2315.33; Smiddy v. The Wedding Party, Inc.   Therefore, Defendants

Unlimited Freight, Inc., and Radenko were not entitled to summary

judgment.

     {¶ 57} The assignment of error is sustained.   The judgment of

the trial court will be reversed and the cause will be remanded

for further proceedings consistent with our decision.



     FROELICH, J., concurs.

     HALL, J., dissenting:

     {¶ 58} I am of the opinion that granting summary judgment in

favor of defendant Radenko was correct. I agree with the majority

(and the trial court) that Plaintiff was negligent per se for her

inability to stop within the assured clear distance. But I disagree

with its analysis of the proximate cause of Plaintiff’s collision
                                                                              24

with Radenko’s truck. I think that the sole proximate cause of

the collision was Plaintiff’s own negligence. For this reason,

I would affirm.

       {¶ 59} The pertinent facts are not in dispute:

       {¶ 60} “There are four vehicles relevant to the instant action,

which were traveling1 east in the following progression: Radenko’s

tractor-trailer (‘Radenko’s truck’), the automobile following

Radenko’s      truck   driven   by   witness   June     Owens    (‘Owens’),   a

semi-truck following June Owens (the Court will occasionally refer

to said semi-truck as ‘vehicle three’), and the automobile driven

by     Plaintiff-Crosby    (‘Plaintiff-Crosby’s         car’).    Owens,   the

following truck, and Plaintiff-Crosby entered Interstate 70,

merged with traffic, and proceeded traveling east in the right

hand    lane,   each   following     the   other   in   the     aforementioned

progression. Owens was forced to come to an abrupt stop, because

Radenko’s truck was stopped in the right lane.2,3 Owens was able



           1
           Radenko’s truck was stopped at a point ahead of the three
     following vehicles on eastbound Interstate 70.
           2
           The evidence is unclear as to the exact positioning of
     Radenko’s truck in the right hand lane of Interstate 70.
     However, it is undisputed that Radenko’s truck or a portion
     of his truck was stopped in the traveling lanes of the interstate
     such that June Owens was forced to stop.
           3
           The only evidence as to the distance traveled in between
     entering the highway and encountering Radenko’s truck is the
     deposition testimony of Plaintiff-Crosby, who stated the
                                                                    25

to stop successfully behind Radenko’s truck without incident. Owens

stated that she immediately looked into her rearview mirror,

because she was concerned about the semi-truck behind her. The

semi-truck following Owens stopped successfully behind her. When

Owens turned her attention back to Radenko’s truck, it appeared

that Radenko ‘backed up a tiny bit’ in the time period in which

Owens was observing the truck behind her. It was at this point

that     Plaintiff-Crosby    came   up    behind     vehicle   three.

Plaintiff-Crosby stated in her deposition that when vehicle three

stopped in front of her, she lost control of the car,4 she swerved

to the left, into the left lane, into the gravel and grass of the

median, then tried to turn right, blacked out, and after regaining

consciousness     realized    she   had    hit     Radenko’s   truck.

Plaintiff-Crosby stated that the truck she collided with (Radenko’s

truck), was not the truck that stopped in front of her (vehicle

three/semi-truck following June Owens’ car).

       {¶ 61} September 23, 2010 Decision, Order, and Entry, etc.,

p.3-4 (Internal citations omitted.).



   distance to be approximately one mile.        Plaintiff-Crosby Depo
   at 19:10.
          4
         A: I could not maintain my vehicle after I saw the semi
   slam on its brakes.

   Q: [D]id you lost control of your vehicle . . .
                                                                   26

     {¶ 62} Plaintiff’s failure to stop safely behind vehicle three

(as vehicle three had done behind vehicle two, and as vehicle two

had done behind Radenko’s truck) was the result of her own

negligence. Plaintiff then negligently swerved into the left lane

and into the median, and then she overcorrected to the right and

swerved into the right lane, colliding with Radenko’s truck. The

collision cannot be attributed to anyone else. If Plaintiff had

not swerved and instead collided with vehicle three, the required

holding, under this Court’s decision in Didier v. Johns (1996),

114 Ohio App. 3d 746, and subsequent, identical holding in Daniels

v. Williamson (July 3, 1997), Montgomery App. No. 96-CA-146, would

be that Plaintiff’s negligence was the sole proximate cause of

the collision. The situation here is indistinguishable: the fact

that both Owens, vehicle two,    and vehicle three stopped safely

behind Radenko’s truck is competent proof that it was not Radenko’s

negligence that caused Plaintiff to swerve. Owens and vehicle three

broke the causal chain.

     {¶ 63} Nor were Owens or vehicle three the cause. As Judge Young

stated in Didier,   “Are we to direct all rear-end collisions into

an endless search of discovery for some tint of negligence down

the road, no matter how far removed?” Didier, at 754. I would add,



   A: Yes.
                                                                   27

“Do we extend potential liability to the third or fourth vehicles,

or maybe the tenth, or perhaps even the twentieth?” In its analysis

the majority revisits Baum v. Augenstein (1983), 10 Ohio App.3d

106; Grange Mut. Cas. Co. v. Fleming (1982), 8 Ohio App.3d 164;

and Shinaver v. Szymanski (1984), 14 Ohio St.3d 51. Each of these

cases was considered in Didier and either rejected as unsound (Baum

and Fleming) or distinguished factually (Shinaver). The same should

be done here for the same reasons.

     {¶ 64} The assured clear distance statute is perhaps one of

the strictest rules of the road, but it needs to be. It may be

captivating to throw all potentially responsible parties into the

mix and let a jury sort it out. But, consistent with this Court’s

precedent, I would hold that once a non-negligent driver breaks

the causal chain by bringing their vehicle to a lawful stop, and

that vehicle remains in the line of travel, the failure of a trailing

vehicle to comply with the assured-clear-distance statute is caused

solely by the trailing driver’s negligence.

     {¶ 65} But another, perhaps more compelling, reason exists to

affirm the trial court’s grant of summary judgment. This reason

makes the intervening/superceding cause analysis unnecessary. As

the majority, and the trial court, point out, because Plaintiff

was negligent by failing to stop in the assured clear distance,

she cannot assert the “sudden emergency” doctrine to justify her
                                                                  28

subsequent loss of control. Therefore, the only reason that

Plaintiff   collided    with   Radenko’s    truck   was   her   own

negligence–first in swerving left to avoid hitting vehicle three,

then losing control into the median, and then in overcorrecting

to the right. The situation is no different than if Plaintiff had

been traveling all along in the left lane, outside the lane of

travel of the stopping vehicles, when, losing control, she swerved

left into the median and then overcorrected right into the right

lane and Radenko’s truck. In that situation, Plaintiff’s own

negligence undoubtedly would be considered the sole cause of the

collision. The same is true in this case since Plaintiff cannot

justify her failure to stop, and her subsequent actions, by claiming

a sudden emergency. The sole proximate cause of the plaintiff’s

movement to the right, and into Radenko’s truck, was her negligent

overcorrecting, precipitated by her negligent driving off the left

side of the roadway.

     {¶ 66} Accordingly, I would affirm the trial court’s decision

to grant summary judgment in favor of defendant Radenko.

                        . . . . . . . . .

Copies mailed to:

Timothy S. Chappars, Esq.
Patrick McCaffrey, Esq.
Audrey E. Varwig, Esq.
Hon. Dennis J. Langer
