[Cite as Adkins v. Ohio State Hwy. Patrol, 2010-Ohio-5915.]

                                                        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




CARL ADKINS, JR., Admr.

       Plaintiff

       v.

OHIO STATE HIGHWAY PATROL

       Defendant
       Case No. 2007-05512

Judge Joseph T. Clark

DECISION




        {¶ 1} Plaintiff, as the administrator of the estate of Sheri Miller, brought this
action against defendant, Ohio State Highway Patrol (OSHP), alleging negligence. The
issues of liability and damages were bifurcated and the case proceeded to trial on the
issue of liability.
        {¶ 2} According to the allegations in the complaint, OSHP Trooper Munyon was
negligent when in the early morning hours he arrested the driver of the car in which
Miller was riding and left her beside a state road without any means of transportation.
Miller was subsequently struck and killed by a motor vehicle traveling northbound on
State Route 23 (SR-23) at approximately 3:30 a.m., as she attempted to walk home in
the dark.
        {¶ 3} Trooper Munyon testified that on April 11, 2003, at approximately 2:20
a.m., he stopped a driver that he witnessed speeding southbound on SR-23 near South
Bloomfield, Ohio. The car was driven by Eric Kovach and Miller was a passenger in the
car. Trooper Munyon performed field sobriety tests on the driver and then arrested
Kovach for driving under the influence (DUI). During the traffic stop, another trooper
arrived at the scene, stayed in the vicinity for a short period of time in case Trooper
Munyon needed assistance, and then left the area.          Trooper Munyon secured the
vehicle and drove Kovach to the nearest highway patrol post to perform a breath alcohol
test.
        {¶ 4} Trooper Munyon recalled that Miller told him that she would call her
daughter for a ride home. According to Trooper Munyon, he left Miller at the arrest
location which he described as a well-lighted parking lot of a Dairy Queen drive-thru,
which was closed at that time of the morning.          Trooper Munyon related that he
instructed Miller to walk to the United Dairy Farmers store or to the Marathon gas
station to call someone for a ride home. The trooper recalled that he gave Miller such
directions both because those establishments were open and they were on the same
side of the street as the arrest location. Trooper Munyon testified that he considered
the area where he left Miller to be a safe location, in that there were sidewalks, the area
was lighted, and there were open establishments nearby.
        {¶ 5} Deputy Sheriff Lane testified that at approximately 3:59 a.m. on April 11,
2003, he was dispatched to the area of the Walnut Creek Bridge on northbound SR-23
in reference to a collision involving a pedestrian and a motor vehicle.              Upon
investigation, Lane located an unresponsive female wearing a black leather jacket and
dark pants lying approximately three feet from the edge line of the roadway.           The
pedestrian was seriously injured and subsequently died at the hospital. It was later
determined that the pedestrian was Miller. Plaintiff alleges that Trooper Munyon had a
duty to protect Miller, that he failed to use reasonable care to ensure her safety, and
that his negligence proximately caused her injuries and death.
        {¶ 6} Defendant denies liability and asserts that Miller’s own negligence in
walking near the roadway, at night, dressed in all-dark clothing was the sole proximate
cause of her death.
        {¶ 7} In order for plaintiff to prevail upon his claim of negligence, he must prove
by a preponderance of the evidence that defendant owed plaintiff’s decedent a duty,
that defendant’s acts or omissions resulted in a breach of that duty, and that the breach
proximately caused decedent’s injuries. Armstrong v. Best Buy Company, Inc., 99 Ohio
St.3d 79, 81, 2003-Ohio-2573, citing Menifee v. Ohio Welding Products, Inc. (1984), 15
Ohio St.3d 75, 77.
        {¶ 8} The duty owed by the Highway Patrol to those drivers and passengers
encountered within the scope of the Highway Patrol’s official duties is one of ordinary
care, bearing in mind that the patrol must enforce the law so as to maximize the safety
of all the motoring public. Crow v. Ohio State Hwy. Patrol (May 18, 1989), Ct. of Cl. No.
84-06021. Ordinary care is that which would be utilized by an ordinarily prudent person
under certain circumstances. Smith v. United Properties, Inc. (1965), 2 Ohio St.2d 310.
        {¶ 9} “The general rule is that there is no duty of affirmative action absent a
special relation which gives rise to a duty to aid or protect another person. A law
enforcement officer having custody of a person stands in a special relation to that
person and owes that person a duty of reasonable care and protection.” (Emphasis
added.) Hartman v. The State Highway Patrol (Dec.19, 1991), Franklin App. No. 91AP-
721. “However, as the Restatement of Law 2d, Torts, Section 314A makes clear, the
custodial officer is not obligated to act until he knows or should know that the person is
mentally deficient. Therefore, the OSHP cannot be held liable to have known what it
could not possibly have known.” Id.
        {¶ 10} Trooper Munyon testified that he had spoken with Miller and that she did
not appear to him to be intoxicated. Specifically, Trooper Munyon noted that Miller was
coherent and cooperative, that she was not hesitant in her speech or her actions, and
that he detected no odor of alcohol about her. According to Trooper Munyon, he did not
have probable cause to perform a field sobriety test on Miller, nor did he have reason to
take her into custody.
        {¶ 11} In attempting to discredit Trooper Munyon’s observations, plaintiff
presented the testimony of Benjamin Risner, an employee of Speedway gas station and
convenience store in South Bloomfield.1 Risner testified that at approximately 3:00
a.m. on April 11, 2003, a woman dressed in a black leather jacket and black pants
entered the store and purchased a few items that she paid for with change. According
to Risner, the woman had an odor of alcohol about her, and she was unsteady on her

        1
          In addition, plaintiff presented the testimony of an expert forensic toxicologist in an attempt to
establish what Miller’s blood-alcohol level would have been at the time of the traffic stop. Upon review,
the court did not place much weight on this testimony.
feet.2 Risner recalled that the woman appeared to be on foot in that he did not observe
any vehicles in the parking lot other than his own. The parties do not dispute that the
person described by Risner was, in all probability, Miller.
        {¶ 12} Inasmuch as Miller was not arrested or taken into custody, the court finds
that no special relationship between Miller and defendant existed. Indeed, the sole
issue for the court to determine is whether Trooper Munyon negligently failed to assess
whether Miller was intoxicated. Trooper Munyon stated that he had been employed with
the OSHP for 11 years and that he had participated in hundreds of DUI arrests.
Trooper Munyon testified that Miller was coherent, cooperative, and willing to make her
own arrangements for transportation home.                In addition, Trooper Munyon testified
credibly that Miller’s appearance and behavior during the traffic stop did not give him a
clear indication that she was impaired or intoxicated.
        {¶ 13} Despite the tragic outcome of this case, the court finds that Trooper
Munyon acted reasonably and appropriately given the circumstances known to him.
The matter of exactly what Miller was thinking and why she did not call someone for a
ride after she left the arrest location will never be known.
        {¶ 14} In the final analysis, the court finds that plaintiff’s decedent failed to
exercise due care for her safety and that she assumed the risk of injury by choosing to
leave the safety of the establishments open to her in South Bloomfield in order to walk
home.
        {¶ 15} For the foregoing reasons, the court finds that defendant did not breach
any duty owed to plaintiff’s decedent and, accordingly, judgment shall be rendered in
favor of defendant.




                                                     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


        2
         Miller’s daughter, Brandi Miller, testified that Sheri had been out drinking from approximately
9:00 p.m. until sometime before the bar closed, and that Sheri was drinking whisky the entire time.
                                                                         www.cco.state.oh.us




CARL ADKINS, JR., Admr.

       Plaintiff

       v.

OHIO STATE HIGHWAY PATROL

       Defendant
       Case No. 2007-05512

Judge Joseph T. Clark

JUDGMENT ENTRY




          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 defendant. 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:


Jennifer A. Adair                           William J. Edwards
William C. Becker                           523 South Third Street
Assistant Attorneys General                 Columbus, Ohio 43215-5720
150 East Gay Street, 18th Floor
Columbus, Ohio 43215-3130

SJM/cmd
Filed November 17, 2010
To S.C. reporter December 1, 2010
