[Cite as Johnson v. Albers, 2012-Ohio-1367.]



                          IN THE COURT OF APPEALS
                 FIRST APPELLATE DISTRICT OF OHIO
                           HAMILTON COUNTY, OHIO



PAUL JOHNSON, Administrator of the             :       APPEAL NO. C-110628
Estate of William Johnson, deceased,                   TRIAL NO. A-1004795
                                               :
          Plaintiff-Appellee,
                                               :
        vs.
                                               :            O P I N I O N.
DANIEL G. ALBERS,
                                               :
          Defendant-Appellant.
                                               :




Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: March 30, 2012



Shea, Coffey & Hartmann, Joseph W. Shea III and Shirley A. Coffey, for Plaintiff-
Appellee,

John K. Benintendi, for Defendant-Appellant.




Please note: This case has been removed from the accelerated calendar.
                    OHIO FIRST DISTRICT COURT OF APPEALS


FISCHER, Judge.


       {¶1}   Defendant-appellant Daniel G. Albers appeals the judgment of the

Hamilton County Court of Common Pleas determining that William Johnson’s death

following a collision with Albers’s car was attributable to Albers’s negligence, and

requiring Albers to pay $250,000 to plaintiff-appellee Paul Johnson (“Johnson”), as

the administrator of the estate of his deceased brother. The parties had stipulated

the damage amount. Because we determine that the trial court properly applied R.C.

4511.46, and that the trial court’s decision was not against the manifest weight of the

evidence, we affirm.

                                   Factual Background

       {¶2}   On December 4, 2008, Albers drove his sports utility vehicle (“SUV”)

on Madison Road in east Cincinnati, Ohio, while on his way to work. The sun had

not yet risen, and the roadway was damp from a recent rain. That same morning,

65-year-old William headed from his home at St. Paul’s Village Retirement Home on

the south side of Madison to the bus stop at the intersection of Madison and

Anderson Place on the north side of Madison, which was his morning routine.

Madison runs east and west with two lanes of traffic in each direction and has left-

hand turn lanes at the intersection of Anderson Place. The posted speed limit is 35

m.p.h. A marked crosswalk on the eastern side of Anderson crosses Madison Road

and is accompanied by an overhead crosswalk sign, a street-level crosswalk sign, and

a flashing yellow caution light.

       {¶3}   As Albers traveled east on Madison, Albers’s SUV hit William as

William crossed Madison from the south. William did not survive his injuries.




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       {¶4}   The police officers who responded to the 911 call made by Albers found

William’s laminated bus pass in the westbound turn lane, inside the marked

crosswalk. The officers also found a scuff mark created by the heel of William’s shoe

south of the bus pass in the left-hand eastbound through lane in which Albers’s SUV

had been traveling.    The scuff mark was approximately three feet east of the

crosswalk and almost in the center of Albers’s lane.

       {¶5}   Johnson filed this wrongful-death action against Albers. The parties

stipulated to damages in the amount of $250,000, and the case proceeded to a bench

trial on the issue of liability only.   Albers testified that he had been traveling

approximately 35 m.p.h. approaching the Anderson intersection. He testified that he

had not seen William until just after he had hit him, and then he had begun breaking.

       {¶6}   Kathleen and John Taylor testified that they had been riding together

in their truck on the way to work the morning of the collision. Kathleen had been

driving, and she testified that as she had headed west on Madison in the left-hand

through lane, she had swerved into the westbound turn lane at the intersection of

Anderson because a school bus in the lane to the right of her had made a wide right

turn onto Anderson. As she had swerved, Kathleen testified that she had exclaimed

to her husband that a man wearing dark-colored clothing had been standing in the

roadway, and she had seen him next to her driver’s side window. John testified that

he had turned around to see if someone had been standing in the road, and he had

not seen anyone.

       {¶7}   David Nelson testified that he had been traveling eastbound in the

right-hand through lane three or four car-lengths behind Albers. As he had headed




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up the hill toward the crosswalk, he had not seen anyone in the roadway. He also

testified that the vehicles, including Albers’s, had not been speeding.

       {¶8}   Johnson’s accident reconstruction expert, Steve Ashton, testified that

if William’s bus pass had been found in the crosswalk, William must have been there.

The prevailing winds at the time would have blown the bus pass further into the

marked crosswalk and not out of it, Ashton testified. Johnson testified that William,

a former marine, had been a regimented person and had routinely used the

crosswalk.

       {¶9}   Albers’s expert Leon Kazarian testified that, based on William’s

injuries, William’s left leg had been stationary and not flailing when he had been hit,

and William had been looking to his right, away from Albers’s vehicle. Kazarian also

testified that the scuff mark had been the point of impact with Albers’s SUV and that

the SUV had been traveling in a straight line.

       {¶10} Albers’s expert Frederick Lickert testified that, based upon the location

of the scuff mark, the final resting position of William’s body, and Albers’s testimony

that he had not begun breaking until he had hit William, Albers’s SUV had been

traveling 25 m.p.h.—10 m.p.h. under the posted speed limit. James Sobek also

testified as an expert for Albers. Sobek testified that because of the headlights,

reflections off the roadway, and William’s dark-colored clothing, William would not

have been visible to Albers until 85 feet prior to the point of impact.

                               The Trial Court’s Findings

       {¶11} The trial court found that Albers had been more than 50 percent

negligent, and therefore ordered Albers to pay Johnson the stipulated damage

amount of $250,000. In its findings of fact and conclusions of law, the trial court

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                    OHIO FIRST DISTRICT COURT OF APPEALS



found that William had been in the crosswalk based upon testimony from Johnson’s

expert. Although the scuff mark had been found by police outside the marked

crosswalk, the trial court found no evidence that William had entered Albers’s lane of

travel suddenly, or that William had been standing outside the crosswalk for any

length of time. The trial court found that the placement of the scuff mark only meant

that the impact had occurred at that point and that William had likely stepped

outside the marked crosswalk in attempt to flee the impending crash.

       {¶12} The trial court also found that Albers had probably seen William and

had begun to brake before impact. The trial court discounted Albers’s testimony that

he had not seen William until impact because the damage to Albers’s SUV had been

higher up on the vehicle, which suggested that the vehicle had been depressed at the

time of impact from braking. The trial court also found that Albers had begun

breaking 85 feet prior to the point of impact, in accordance with Sobek’s testimony

that Johnson would have been discernable 85 feet in front of the impact point.

       {¶13} The trial court also found that Albers had been traveling at an

unreasonably unsafe speed.      The trial court reasoned that Albers, by his own

testimony and prior admissions, had stated that he had been going from 35 to 40

m.p.h. The trial court discounted Nelson’s lay testimony that Albers had not been

speeding and also discounted Lickert’s opinion testimony that Albers had been going

about 25 m.p.h. because Lickert’s opinion rested on the assumption that Albers had

not begun to brake until the point of impact. The trial court also reasoned that, if the

entire discernment-reaction-braking process occurred over 173 feet, then Albers’s

speed was most likely consistent with his own admission. The trial court found that

even though the posted speed limit was 35 m.p.h., a speed of 25 m.p.h. would have

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                     OHIO FIRST DISTRICT COURT OF APPEALS



been reasonable because of the glare of car lights, the crosswalk signs, and because

the streets had been damp from a recent rain.

         {¶14} Based upon its findings, the trial court determined that Albers’s failure

to exercise due care at the crosswalk and rate of speed proximately caused William’s

death. The trial court found that William’s dark-colored clothing had contributed to

the crash and Albers’s ability to perceive him, but that Albers had been primarily at

fault.

         {¶15} Albers has appealed, arguing in two assignments of error that the trial

court incorrectly applied R.C. 4511.46 and that the trial court’s decision was against

the manifest weight of the evidence. We will address each argument in turn.

                      Right-of-Way for Pedestrian in Crosswalk

         {¶16} Albers argues in his first assignment of error that because William was

not on the half of the roadway upon which Albers was traveling prior to impact, and

William had left a place of safety, Albers had not violated R.C. 4511.46(A). R.C.

4511.46(A) states that

                [w]hen traffic control signals are not in place, not in

                operation, or are not clearly assigning the right-of-way,

                the driver of a vehicle * * * shall yield the right of way,

                slowing down or stopping if need be to so yield * * * to a

                pedestrian crossing the roadway within a crosswalk

                when the pedestrian is upon the half of the roadway

                upon which the vehicle is traveling, or when the

                pedestrian is approaching so closely from the opposite

                half of the roadway as to be in danger.

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                   OHIO FIRST DISTRICT COURT OF APPEALS



R.C. 4511.46(B) states that “[n]o pedestrian shall suddenly leave a curb or other place

of safety and walk or run into the path of a vehicle * * * which is so close as to

constitute an immediate hazard.”

       {¶17} Both parties agree that an appellate court should not disturb a trial

court’s findings of fact if the record contains competent, credible evidence to support

those findings. C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279, 376 N.E.2d

578 (1978), syllabus.   Albers argues that his assignment of error raises mixed

questions of law and fact, and that as to legal questions, the standard of review is de

novo. Bowling v. Stafford & Stafford Co., L.P.A., 1st Dist. No. C-090565, 2010-

Ohio-2769, ¶ 8.    Johnson argues that the application of R.C. 4511.46 turns on

whether Williams was in the crosswalk, which is purely a fact question. Even under a

de novo standard of review, however, Albers’s argument under R.C. 4511.46 is not

well-taken.

       {¶18} Albers contends that because the trial court found that William had

been at the location of the bus pass prior to impact, and that the bus pass had been

located in the westbound turn lane, William had not been on the half of the roadway

upon which Albers had been traveling. Albers also argues that William had been in a

place of safety in the westbound turn lane before he had been hit by Albers.

Therefore, Albers argues, he did not violate R.C. 4511.46(A).

       {¶19} Considering the trial court’s findings, we cannot agree with Albers’s

argued application of R.C. 4511.46. The trial court found that William had been

inside the crosswalk where he had dropped his bus pass before he had headed back

south and had been hit in Albers’s lane of travel, three feet outside the marked

crosswalk. Once William had established his right-of-way in the crosswalk and had

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                    OHIO FIRST DISTRICT COURT OF APPEALS



been on Albers’s half of the roadway, or closely approaching from the westbound

lanes as the evidence supports, Albers had a duty under R.C. 4511.46(A) to yield to

William.

       {¶20} Nor can we determine that William had been in a place of safety in the

westbound turn lane prior to entering Albers’s lane of travel.        Kathleen Taylor

testified that she had swung into the westbound turn lane and had seen a man in

dark-colored clothing close to her driver’s side window. Taylor’s testimony along

with the other evidence in the record shows that William had successfully crossed the

eastbound traffic on Madison, but had difficulty negotiating the westbound traffic.

William had been trapped in the middle of the roadway when he had entered Albers’s

lane of travel. Therefore, R.C. 4511.46(B) is not implicated.

       {¶21} We determine that the trial court properly applied R.C. 4511.46, and

we overrule Albers’s first assignment of error.

                                     Manifest Weight

       {¶22} In his second assignment of error, Albers argues that the judgment of

the trial court is against the manifest weight of the evidence. In order to succeed in a

wrongful-death action, the plaintiff must show that the decedent’s death was caused

by a wrongful act, neglect, or default on the part of the defendant. R.C. 2125.01. A

wrongful-death action predicated on negligence requires the plaintiff to show a duty

owed to the decedent, breach of that duty, and proximate causation between the

breach and the death. Thompson v. Wing, 70 Ohio St.3d 176, 184, 1994-Ohio-358,

637 N.E.2d 917.     So long as the trial court’s judgment is supported by some

competent, credible evidence, it cannot be overturned. C.E. Morris Co., 54 Ohio

St.2d at syllabus, 376 N.E.2d 578.

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                    OHIO FIRST DISTRICT COURT OF APPEALS



       {¶23} Albers contends that the trial court’s finding that William was in the

marked crosswalk was against the manifest weight of the evidence. Albers argues

that the only testimony on this issue came from Johnson who testified that his

brother had routinely used crosswalks. Albers notes that the trial court found that

the circumstantial evidence as to William’s pre-collision location went “both ways,”

meaning that evidence existed to show that William had been in the crosswalk and

also that he had not been in the crosswalk. Thus, Albers argues, Johnson did not

meet his burden of proof.

       {¶24} Albers also relies on Meyer v. Rapacz, 8th Dist. No. 95571, 2011-Ohio-

2537, for his manifest-weight argument. In Meyer, a driver struck and killed a

pedestrian, and the driver testified that he had not seen the pedestrian until he had

hit him. Id. at ¶ 5. The court determined that the driver had no duty to look for the

pedestrian violating his right of way because no evidence existed to suggest that the

driver should have foreseen a dangerous situation, which would have required the

exercise of greater care. Id. at ¶ 23.

       {¶25} Albers analogizes his situation to the facts in Meyer because in both

cases the driver had not seen the decedent immediately before the accident. Meyer

is distinguishable. In Meyer, the undisputed evidence showed that the pedestrian

was not in a marked crosswalk. Id. In the instant case, some competent, credible

evidence, albeit circumstantial, exists to show that William had been in the marked

crosswalk. Not only did Johnson testify regarding his brother’s routine practice of

using crosswalks, but Johnson’s expert, Steve Ashton, testified that William had been

in the crosswalk prior to impact based upon the location of the bus pass. Moreover,

although the trial court noted that circumstantial evidence as to William’s pre-

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                    OHIO FIRST DISTRICT COURT OF APPEALS



collision location went “both ways,” the trial court ultimately concluded that William

had been in the crosswalk.

       {¶26} Finally, Albers contends that the trial court erred in finding that his

speed was unreasonable and that no evidence existed to show that his speed

proximately caused Albers’s death. The trial court determined that Albers’s SUV had

been traveling between 35 and 40 m.p.h., based in part on the perception-to-rest

distance measured from where Albers would have first been able to discern William

to the point that William’s body came to rest after the collision. Albers argues that

the trial court’s perception-to-rest calculation is flawed because Albers had begun

breaking at the point of impact or a tenth of a second beyond it, and using a stopping

distance of 60 feet, Albers would have been traveling between 18 and 19 m.p.h.

Alternatively, Albers argues that the trial court incorrectly calculated the perception-

to-rest distance as 173 feet. Albers contends that William’s body did not come to rest

88 feet from the point of impact as stated by the trial court, but that his body actually

came to rest 60 feet from the point of impact. Therefore, Albers argues, the total

distance of perception to rest was 145 feet, and applying the same coefficient of

friction that the trial court applied, Albers would not have been speeding, but instead

traveling between 33 and 34 m.p.h.

       {¶27} We determine that Albers’s arguments regarding his speed are largely

irrelevant. Because competent, credible evidence existed to support the trial court’s

determination that William had been in the crosswalk prior to impact and had been

on Albers’s half of the roadway or closely approaching, under R.C. 4511.46(A) Albers

owed a duty to yield to William no matter whether Albers had been traveling 10

m.p.h. or 40 m.p.h. Therefore, we overrule Albers’s second assignment of error.

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       {¶28} In conclusion, once William established his right-of-way in the

crosswalk and was on Albers’s half of the roadway or closely approaching, Albers had

a duty pursuant to R.C. 4511.46(A) to yield to William. William did not leave a place

of safety under R.C. 4511.46(B) by moving from the westbound turn lane in the

crosswalk into Albers’s lane, especially where the evidence suggests that William

could not safely negotiate westbound traffic. Competent, credible evidence existed to

support the trial court’s determination that William’s death was attributable to

Albers’s negligence. Therefore, the judgment of the trial court is affirmed.

                                                                     Judgment affirmed.

HILDEBRANDT, P.J., and DINKELACKER, J., concur.


Please note:
       The court has recorded its own entry on the date of the release of this opinion.




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