[Cite as Muccio v. Barry, 2012-Ohio-6327.]




                                                 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



PATRICK MUCCIO

       Plaintiff

       v.

SEAN C. BARRY

       Defendant/Third-Party Plaintiff

       v.

MIAMI UNIVERSITY

       Third-Party Defendant

Case No. 2011-03251-PR

Judge Clark B. Weaver Sr.

DECISION

        {¶ 1} On June 22, 2012, plaintiff, with leave of court, filed a motion for partial
summary judgment. On July 30, 2012, defendant/third-party plaintiff, Sean C. Barry
(Barry), filed a memorandum in opposition.
        {¶ 2} Civ.R. 56(C) states, in part, as follows:
        {¶ 3} “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
Case No. 2011-03251-PR                        -2-                     JUDGMENT ENTRY

against whom the motion for summary judgment is made, that party being entitled to
have the evidence or stipulation construed most strongly in the party’s favor.” See also
Gilbert v. Summit County, 104 Ohio St.3d 660, 2004-Ohio-7108, citing Temple v. Wean
United, Inc., 50 Ohio St.2d 317 (1977).
        {¶ 4} Both plaintiff and Barry were members of the Miami University Glee Club, a
volunteer student organization for which the participants received school credit.           In
2009, the Glee Club embarked on a winter tour which consisted of performances in
several cities. On January 6, 2009, the Glee Club performed at a church in Cleveland,
Ohio. Following the performance, the club members were shuttled to a nearby “host
home” by a chartered bus and several passenger vans. The Glee Club members spent
the night at the host home and then departed for the next concert venue in Buffalo, New
York.
        {¶ 5} In his answer, Barry admitted the following allegations of the complaint:
        {¶ 6} “13.    After an initial performance by the Glee Club in Cleveland the
previous evening, on January 6, 2009 at approximately 9:00 a.m. the caravan of
student/members left Cleveland for Buffalo, New York.
        {¶ 7} “14.    Defendant Barry was the driver of one (1) of the five (5) vans to be
driven from Cleveland to Buffalo.         Plaintiff Patrick Muccio was amongst eight (8)
passengers in that van.
        {¶ 8} “15.    Approximately, one-and-a-half (1 1/2) hours into the drive,
defendant Sean C. Barry fell asleep at the wheel and caused the van to drift toward the
median.
        {¶ 9} “16.    Upon drifting into the median, * * * the van * * * rolled * * * until it
came to rest onto its roof.” (Plaintiff’s complaint.)
        {¶ 10} In his deposition, Barry testified as follows:
        {¶ 11} “Q.    And tell us what happened during that accident.
        {¶ 12} “A.    I fell asleep behind the wheel and we were the only vehicle
involved.
Case No. 2011-03251-PR                       -2-                       JUDGMENT ENTRY

       {¶ 13} “Q.      Okay. At any point did you wake up during the crash?
       {¶ 14} “A.      Yes.
       {¶ 15} “Q.      Okay. Why don’t you tell us in detail what happened.
       {¶ 16} “A.      I woke up and the van was in the center median driving on grass,
and I corrected the vehicle to drive back up on the road, drove across however many
lanes there were to the other side of the road, and as I corrected again back to the left,
the van flipped.
       {¶ 17} “Q.      Okay. So if I understand it correctly, you woke up to find yourself
in the left median; is that correct?
       {¶ 18} “A.      Yes.
       {¶ 19} “Q.      And then you had corrected it and the van went over the lanes of
traffic?
       {¶ 20} “A.      Yes.
       {¶ 21} “Q.      Okay. And then you tried to correct again, and then you ended up
on the other side of the interstate?
       {¶ 22} “A.      I don’t know where we ended up.” (Deposition Transcript, Page 30,
Line 10 - Page 31, Line 11.)
       {¶ 23} “* * *
       {¶ 24} “Q.      Do you take full responsibility for the accident?
       {¶ 25} “A.      Yes.
       {¶ 26} “Q.      Would you say that there’s anyone else to blame student-wise with
regards to this accident?
       {¶ 27} “A.      No.
       {¶ 28} “Q.      Do you feel as if Miami University should have provided you with
some form of training prior to operation of this van?
       {¶ 29} “A.      I don’t know. I’m not sure.” (Deposition Transcript, Page 36, Line
21 - Page 37, Line 6.)
Case No. 2011-03251-PR                              -2-                           JUDGMENT ENTRY

        {¶ 30} Barry was subsequently convicted of careless driving under Pennsylvania
law. There are no exculpating facts which would excuse such conduct or otherwise
relieve Barry from liability to plaintiff.1 In spite of Barry’s protestations to the contrary,
the only reasonable inference to draw from Barry’s answer and from his deposition
testimony is that Barry was negligent and that such negligence was the proximate
cause of plaintiff’s harm.             Indeed, plaintiff maintains that Barry’s violation of
Pennsylvania traffic law requires a finding of negligence per se.                       However, having
determined that the only reasonable conclusion to reach upon the evidence is that Barry
was negligent, it matters not whether such negligence arises out of statutory or common
law.
        {¶ 31} For similar reasons, Barry’s insistence that his deposition testimony is not
to be interpreted as an admission of legal liability is also of no consequence. As stated
above, the only permissible inference to be drawn from the evidence is that Barry was
negligent and that his negligence was the proximate cause of plaintiff’s harm. Barry’s
own opinion as to his legal culpability does not change the undisputed facts.
        {¶ 32} Barry argues, in the alternative, that the court cannot grant plaintiff’s
motion for summary judgment where there are factual issues regarding negligent
training. Barry contends that the trier of fact could find that the negligence of third-party
defendant, Miami University (Miami), was an intervening and superseding cause of
plaintiff’s harm. The court disagrees.



        1
          Under Pennsylvania law, “[f]or a driver to sleep at the wheel of a moving automobile makes him
prima facie guilty of negligence. If there are any facts which under the circumstances tend to exculpate
him from the charge of negligence, the burden of producing them is upon him.” Bernosky v. Greff, 350
Pa. 59, 61 (1944). “It is impossible to fathom how one who falls asleep while operating an automobile,
thus blindly propelling thousands of pounds of steel and glass at tens of miles per hour, cannot be guilty
of a degree of negligence beyond mere ‘absence of ordinary care.’” Commonwealth v. Cathey, 435 Pa.
Super. 162 (1994) (applying 75 Pa.Consolidated Stat. 3714).
         Under Ohio law, “[t]he authorities are quite uniform upon the proposition that the fact that a driver
went to sleep while driving an automobile creates an inference of negligence sufficient to make out a
prima facie case, and sufficient for a recovery of damages by one injured as a result thereof, if no
circumstances tending to excuse or justify his conduct are proven.” Collins v. McClure, 143 Ohio St. 569
Case No. 2011-03251-PR                            -2-                         JUDGMENT ENTRY

        {¶ 33} In Berdyck v. Shinde, 66 Ohio St.3d 573 (1993), the Ohio Supreme Court
discussed the law on the subject as follows:
        {¶ 34} “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. * * *
        {¶ 35} “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. 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.” (Citations omitted.) Id.
at 584-585.
        {¶ 36} By contrast, “‘[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.’” Id. at 584, quoting Garbe v. Halloran, 150 Ohio
St. 476 (1948).
        {¶ 37} Even if the court were to assume that Miami failed to properly train Barry,
there is no question that Miami’s negligence, if any, merely combined with the
negligence of Barry to produce plaintiff’s harm. Negligent training alone could not have
produced plaintiff’s harm in this case. Rather, it was the subsequent careless driving of
Barry that produced the injury. Thus, no reasonable trier of fact could find that the
alleged actions or omissions of Miami were either an intervening or superseding cause
of plaintiff’s harm.

(1944). “Falling asleep at the wheel is not exercising due care but is a total absence of any care.” F.E.
Avery Co. v. George, 10th Dist. No. 6034 (Apr. 14, 1959).
Case No. 2011-03251-PR                          -2-                         JUDGMENT ENTRY

       {¶ 38} Based upon the foregoing, plaintiff’s motion for partial summary judgment
shall be granted.
       {¶ 39} Further, the court is aware that the liability issue raised by Barry’s third-
party complaint against Miami for indemnity is whether, pursuant to R.C. 2743.16(B),
plaintiff suffered loss to person or property while Barry was engaged in the course and
scope of his employment with Miami. Additionally, the issue with regard to Barry’s claim
against Miami for contribution is whether Miami breached a duty to adequately train
Barry.2 Both of these liability issues will be tried to the court, without a jury, and both
issues should be decided in advance of the jury trial. Indeed, a determination of the
remaining liability issues in advance of the jury trial on damages will help simplify the
presentation of the case to the jury and avoid confusion of the issues. Accordingly, the
jury trial scheduled for October 29-November 2, 2012, at 10:00 a.m., shall be converted
to a trial to the court on the liability issue raised in the third-party complaint. A jury trial
on the issue of damages shall be scheduled thereafter.




       2
         Plaintiff’s original action against Miami, Ct. of Claims Case No. 2010-13091, does not allege
negligent training.
Case No. 2011-03251-PR                     -2-                      JUDGMENT ENTRY




                                              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



PATRICK MUCCIO

      Plaintiff

      v.

SEAN C. BARRY

      Defendant/Third-Party Plaintiff

      v.

MIAMI UNIVERSITY

      Third-Party Defendant

Case No. 2011-03251-PR

Judge Clark B. Weaver Sr.

JUDGMENT ENTRY

      {¶ 40} A non-oral hearing was conducted in this case upon plaintiff’s motion for
partial summary judgment. For the reasons set forth in the decision filed concurrently
herewith, plaintiff’s motion for partial summary judgment is GRANTED and judgment is
rendered in favor of plaintiff in an amount to be determined.
Case No. 2011-03251-PR                       -2-                        JUDGMENT ENTRY

         {¶ 41} The jury trial scheduled for October 29-November 2, 2012, at 10:00 a.m.,
is converted to a trial to the court on the liability issue raised in the third-party complaint.
A jury trial on the issue of damages shall be scheduled thereafter.




                                            _____________________________________
                                            CLARK B. WEAVER SR.
                                            Judge


cc:


Aaron M. Shank                                 Adam E. Crowell
Jared M. Klaus                                 Adam P. Richards
41 South High Street, 29th Floor               Bradley A. Strickling
Columbus, Ohio 43215-6194                      Charles H. Cooper Jr.
                                               Rex H. Elliott
                                               2175 Riverside Drive
                                               Columbus, Ohio 43221

Amy S. Brown                                   Elizabeth L. Moyo
Randall W. Knutti                              41 South High Street, 29th Floor
Assistant Attorneys General                    Columbus, Ohio 43215
150 East Gay Street, 18th Floor
Columbus, Ohio 43215-3130

Marshall W. Guerin
2545 Farmers Drive, Suite 370
Columbus, Ohio 43235

006
Filed August 23, 2012
To S.C. Reporter January 17, 2013
