[Cite as Anderson v. Schmidt, 2013-Ohio-3524.]


                Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA


                             JOURNAL ENTRY AND OPINION
                                      No. 99084



                            DALE ANDERSON, ET AL.
                                                 PLAINTIFFS-APPELLANTS

                                                  vs.


                        ROBERT E. SCHMIDT, ET AL.
                                                 DEFENDANTS-APPELLEES




                                   JUDGMENT:
                             REVERSED AND REMANDED


                                     Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                     Case No. CV-759640

        BEFORE: Kilbane, J., Boyle, P.J., and Rocco, J.

        RELEASED AND JOURNALIZED: August 15, 2013
ATTORNEYS FOR APPELLANTS

Matthew A. Palnik
Donald G. Riemer
Shapiro, Marnecheck, Riemer & Palnik
425 Western Reserve Building
1468 West Ninth Street
Cleveland, Ohio 44113

ATTORNEY FOR APPELLEES

Jan L. Roller
Davis & Young
1200 Fifth Third Center
600 Superior Avenue
Cleveland, Ohio 44114
MARY EILEEN KILBANE, J.:

       {¶1} Plaintiffs-appellants, Dale Anderson (“Dale”), Julius Anderson (“Julius”),

and Viola Anderson (“Viola”) (collectively known as “plaintiffs”), the children of

Priscilla Anderson (“the decedent”), appeal from the final judgment in an action for

wrongful death filed against defendants-appellees, Robert Schmidt (“Schmidt”) and

Rich’s Towing (collectively known as “defendants”).           We find that the trial court

committed prejudicial error in connection with the charge to the jury; therefore, we

reverse and remand for further proceedings in accordance with this opinion.

       {¶2} On April 9, 2010, the decedent was struck by a tow truck, operated by

Schmidt of Rich’s Towing, as she was attempting to cross Bagley Road at the Front Street

intersection in Berea.    She suffered a fractured pelvis and subsequently contracted

pneumonia and died on May 26, 2010. Dale was appointed administrator of her estate.

In his representative capacity and individual capacity he, together with his siblings in their

individual capacities, filed a wrongful death action against defendants on July 14, 2011.

       {¶3} The matter proceeded to a jury trial on August 6, 2012. Plaintiff presented

the videotaped testimony of Berea Police Officer Rob Chernisky (“Chernisky”) and the

testimony of Steve McKenna (“McKenna”), Choya Hawn (“Hawn”), Dale, and Julius.

       {¶4} Chernisky testified that on April 9, 2010, at approximately 1:15 p.m., the

decedent was at the northwest corner of the intersection of Front Street and Bagley Road,

and was waiting to cross Bagley Road toward the southwest corner of the intersection.
Schmidt was driving a 1998 Peterbilt tow truck and was in the southbound lane of Front

Street, waiting to turn right onto the westbound lane of Bagley Road. According to

Chernisky, as the light for Front Street turned green or at the indication of the walk signal,

a pedestrian in the crosswalk would have the right-of-way and vehicles would have to

yield.

         {¶5} By the time Chernisky arrived, he observed the decedent lying on Bagley

Road, partially beneath the tow truck, just in front of the right tire. Chernisky did not

speak with the decedent, and she was transported to the hospital. Schmidt told Chernisky

that he did not see the decedent, and after speaking with Schmidt and witnesses Annette

Washington (“Washington”) and McKenna, Chernisky determined that when the light on

Front Street turned green, Schmidt began to make a wide right turn onto Bagley and then

struck the decedent. Photographs depict the decedent partially beneath the tow truck.

Her feet were approximately 14 feet away from the curb and her head was beneath the

tow truck. There were skid marks immediately to the east of the decedent, near the

crosswalk traversing Bagley Road.

         {¶6} On cross-examination, Chernisky testified that according to a pamphlet

prepared by the Ohio Department of Public Safety, pedestrians should look both ways

before crossing and should continue to check for traffic as they proceed. The defense

also asked him to assume that a clean portion of the truck near the passenger door may

have been the point where the decedent and the tow truck made contact, and in light of
that assumption, then the decedent walked from the curb and into the side of the truck as

it was turning.

       {¶7} McKenna testified that he was in a vehicle driven by his coworker, Dave

Disinger (“Disinger”). They were stopped in the northbound direction of Front Street at

the Bagley Road intersection, and McKenna observed the decedent standing near a pole at

the northwest corner of the street, near the ramp of the crosswalk. After the light for

Front Street traffic turned green, McKenna noticed the decedent crossing inside the

crosswalk and observed the tow truck making a right turn. According to McKenna, the

decedent “wasn’t looking around” to see the tow truck coming at her, nor did the

decedent or the tow truck yield to the other. McKenna was certain that he observed the

decedent inside the crosswalk. He next noticed that she was down and her feet were

visible from under the tow truck, several steps away from the curb. McKenna told

Disinger, “That truck just ran over that old lady, and he had no clue.” McKenna stated

on cross-examination that the decedent did not look to her left to see the tow truck as it

approached. He also stated that she was still standing when the front of the tow truck

passed her.

       {¶8} Hawn, of Introtech, Inc., an accident reconstruction company, testified that

he is a former Ohio State Trooper and has training and experience in accident

investigation and reconstruction. Hawn examined police photographs, medical records,

skid marks, made various measurements of the truck, and read Schmidt’s deposition,

McKenna’s deposition, and Washington’s deposition.           Hawn determined that the
accident occurred after the decedent had been walking for 3.4 seconds when the decedent

was 14 feet from the curb. At that point, Schmidt was 7 seconds into his turn and

traveled approximately 35 feet and was traveling 6 or 7 miles per hour. Hawn stated that

the typical reaction time between seeing a danger and responding to it is 1.5 seconds. He

determined that 1.5 seconds before the collision, the truck would have been immediately

to the decedent’s left and slightly behind her, and even if she had stopped, the side of the

truck would have still hit her. Hawn stated that the truck has limited visibility spots in

the front on the right of the vehicle. In Hawn’s opinion, the collision occurred because

Schmidt failed to yield the right- of-way to the decedent.        Hawn acknowledged on

cross-examination that the decedent was not struck by the front of the vehicle but was hit

from the side.

       {¶9} Dale Anderson testified that his mother was hospitalized for eight days after

the accident.    She had a fractured pelvis and multiple contusions, and she was

subsequently transferred to a rehabilitation facility to address her mobility issues. She

remained there for about a month and had begun to use a walker. She then contracted

pneumonia and was transported to Lakewood hospital where she died. She incurred

medical bills totaling $173,615.32. Julius testified that he frequently stayed with his

mother.

       {¶10} The defense presented testimony from Washington, Schmidt, and Richard

Stevens of Valley Technical Services, an accident reconstructionist. Washington, a bus

driver for the Cuyahoga County Board of Mental Retardation and Development
Disabilities (“MRDD”), testified that she was driving a school bus heading eastbound on

Bagley Road. Washington observed the decedent on the red brick or pedestrian pad of

the ramp leading to the crosswalk.      The tow truck was already moving, making a

right-hand turn. The tow truck made its turn and, as it did so, Washington observed the

decedent step into the crosswalk. According to this witness, the decedent stepped off the

pad near the crosswalk as the tow truck was already turning. Following the collision,

Washington ran over to Schmidt and said, “You wouldn’t have seen her.”

       {¶11} Schmidt testified that he was stopped in the far right lane of the southbound

direction of Front Street and intended to turn right or westward onto Bagley Road.

Because of the size of his vehicle, and his intention to make a left turn immediately after

turning onto Bagley, when the light turned green, he headed toward the left lane of

Bagley Road rather than the rightmost lane. Schmidt stated that he looked but did not

did not see anyone in the adjacent crosswalk or pedestrian area, but as he was into his

turn, he heard a thud. He got out of his truck and saw the decedent’s legs near the

passenger side of the truck. The decedent reportedly asked, “Didn’t you see me?” and he

told her that he did not.

       {¶12} Stevens testified that he is a former Ohio State Trooper who has experience

and training in crash investigation and accident reconstruction. He formerly worked at

Introtech. Stevens “mapped” the scene of the crash, documenting the position of the

vehicle, distances, and other factors. He acknowledged that there was not “any great

discrepancy of either timing or distance” in the calculations he performed and those
performed by plaintiffs’ expert, Hawn. Stevens testified that at approximately 12 feet

away from the curb there was contact between the tow truck and the decedent, and the

contact point was on the right side of the truck, at the point of the fuel tank and the steps

to the passenger compartment. Stevens also prepared a visibility study, using a camera

mounted to a hard hat worn by Schmidt as he drove through the intersection of Front

Street and Bagley Road. From the first run through, the pedestrian was visible in the

beginning, as she is standing on the pedestrian pad just before the crosswalk.            In

subsequent run-throughs, however, a pedestrian at this location is not visible to the driver.



       {¶13} According to Stevens, a pole in this area could obstruct the driver’s view of

a pedestrian. Stevens also testified that the tow truck was going into the left lane just

before it stopped.    Stevens opined that the accident occurred because neither the

decedent nor Schmidt saw the other. According to Stevens, Schmidt could not see the

decedent because of visibility problems identified in the visibility study, but the decedent

would have been able to see the tow truck had she turned her head to the left and also

would have been able to hear the truck coming. Stevens maintained that she had 5.6

seconds to detect and react to the tow truck but did not do so. He acknowledged on

cross-examination that the driver is required to yield to pedestrians in the crosswalk.

       {¶14} The parties subsequently entered into the following stipulations that were

read to the jury:

       Number One, Mr. Schmidt was stopped on Front Street on or near the stop
       bar before getting a green light; number two, Ms. Anderson was walking
       with a green light. Bagley Road had a green light for east/west traffic;
       while stopped at the light and making his turn, Mr. Schmidt did not see Ms.
       Anderson; and the fourth stipulation is that the initial impact was about 6.5
       feet back from the front of the truck in the area of the front plate of the
       attached steps.

       {¶15} On August 27, 2012, the jury returned a verdict in favor of plaintiff in the

amount of $100,000. In special interrogatories, the jurors concluded that Schmidt’s

negligence was a direct and proximate cause of the damages; that each was 50 percent

negligent; that “the medical bills are $30,000; $5,000 in funeral expenses; $65,000 to the

estate of Priscilla Anderson, zero to the three children, for a total of $100,000.”

Plaintiffs appeal and assign six errors for our review.

       {¶16} Plaintiffs’ second assignment of error states:

       The trial court erred by providing the jury with several inapplicable
       instructions to the case at bar.

       {¶17} Within this assignment of error, plaintiffs complain that the trial court erred

in giving an instruction that if a pedestrian loses her right-of-way by not proceeding in a

lawful manner, then each party must use ordinary care under the circumstances. Further,

plaintiffs complain that the court erred in instructing the jury that a person is negligent

when they do not continue to look if, under the circumstances, a reasonably prudent

person would have continued to look, and that a pedestrian must not suddenly leave the

curb and walk into the path of a vehicle.

       {¶18} In considering the appropriateness of a jury instruction, a reviewing court

must view the instructions as a whole. Atkinson v. Internatl. Technegroup, Inc., 106
Ohio App.3d 349, 365, 666 N.E.2d 257 (1st Dist.1995).            In this matter, the court

instructed the jury as follows:

       Right of way means the right of a pedestrian to proceed uninterruptedly in a
       lawful manner in the direction in which he or she was moving in reference
       to another vehicle approaching from a different direction into her path. * *
       *

       To keep her right of way as a preferred party to continue to travel
       uninterruptedly, the pedestrian must walk in a lawful manner. If he or she
       does not do so, she loses the right of way by not proceeding in a lawful
       manner, each party must then use ordinary care under the circumstances.

       A pedestrian who has the right of way has the right to travel uninterruptedly
       in a lawful manner. She has the right to rely upon her preferred status and
       to assume, in the absence of knowledge to the contrary, that others will
       obey the law by stopping and yielding her the right of way and not entering
       into her path of travel.

       The driver of the vehicle who does not have the right of way must permit
       the other party to proceed without interruption. He must not move into the
       intersection or that part of the intersection about to be occupied by the
       preferred party, if such movement would interrupt the progress of the
       preferred party. The party who does not have the right of way must look at
       such times and places in a manner that will make his looking effective, and
       he must wait and travel at a speed slow enough to stop and avoid entering
       into the path of the approaching pedestrian having the right of way.
       Failure to yield the right of way to a preferred party is negligence.
       If you find that the plaintiff was not walking in a lawful manner, then she
       lost the right of way and is not entitled to any preference over the other
       driver. In that event, the defendant was not required to yield the right of
       way and the parties * * * have equal rights and each must use ordinary care
       under the circumstances. If you find that the plaintiff was walking in a
       lawful manner, then she had the right of way and the defendant was
       required to yield the right of way to her.

       A pedestrian facing a pedestrian controlled signal indicating “walk” may
       proceed or walk across the roadway in the direction of the signal. And they
       have the right of way over all vehicles, streetcars and/or trolleys.
       However, a pedestrian must not suddenly leave a curb and walk or run into
       the path of a vehicle which is so close that it causes immediate hazard.

       The parties are required to use ordinary care in order to discover and avoid
       danger.

       A person is negligent if they look but do not see that which would have
       been seen by a reasonably prudent person under the same or similar
       circumstances.
       A person is negligent when they do not continue to look if, under the
       circumstances, a reasonably prudent person would have continued to look.

       The driver of a vehicle intending to turn right at an intersection must
       approach for the turn and must make the turning movement as close as he
       can to the right hand curb or the right edge of the roadway.

       Every person has the right to assume, in the absence of notice or knowledge
       to the contrary, that others on the highway will observe the law.

       Action by a person based upon the assumption that others will obey the

       statutes is not a failure to use ordinary care, unless such person has notice or

       knowledge that the other party is proceeding in violation of a statute.

       {¶19} The decision to give or omit instructions is reviewed for an abuse of

discretion under the facts and circumstances of the case. Berardi’s Fresh Roast, Inc. v.

PMD Ents., Inc., 8th Dist. Cuyahoga No. 93920, 2010-Ohio-5124, ¶ 12. A trial court

has discretion whether to give a requested jury instruction based on the dispositive issues

presented during trial. Renfro v. Black, 52 Ohio St.3d 27, 30, 556 N.E.2d 150 (1990).

                          Instruction on Loss of Right-of-Way

       {¶20} In general, under the common law, a person is negligent when he does not

continue to look if under the circumstances a reasonably cautious, careful, and prudent
person would have continued to look. See Rayoum v. Adams, 6th Dist. Lucas No.

L-97-1370, 1998 Ohio App. LEXIS 3362 (July 24, 1998).

       {¶21} We further note, however, that vehicular traffic turning right must yield to

pedestrians lawfully in the crosswalk.      R.C. 4511.13.     Further, the version of R.C.

4511.14 in effect in 2010, provided that “[p]edestrians facing [a walk signal] may proceed

across the roadway in the direction of the signal and shall be given the right of way by the

operators of all vehicles, streetcars, and trackless trolleys.” R.C. 4511.01(UU) defines

“right-of-way” as “the right * * * to proceed uninterruptedly in a lawful manner in the

direction in which it or the individual is moving in preference to another vehicle * * *

approaching from a different direction into its or the individual’s path.”

       {¶22} The statutory provisions regarding the right-of-way establish a preferential

status for the individual with the right-of-way. Deming v. Osinski, 24 Ohio St.2d 179,

181, 265 N.E.2d 554 (1970). The court explained that “relegating both to the rules of

care existing at common law, entirely ignore the preferential status of the [individual with

the right-of-way] and the servient status of the other vehicle.” Id.

       {¶23} The common law duties, in relation to the statutory preference for the

individual with the right-of-way were further explained in Wallace v. Hipp, 6th Dist.

Lucas No. L-11-1052, 2012-Ohio-623, ¶ 16-17, as follows:

       Even under the common-law duty to exercise ordinary care to avoid a
       collision, the contributory or comparative negligence of the [individual]
       with the right of way does not become an issue for trial without evidence
       that the [individual] with the right of way was also [proceeding] unlawfully.
        See Lydic v. Earnest, 7th Dist. No. 02 CA 125, 2004-Ohio-3194, applying
       the principles in Morris [v. Bloomgren, 127 Ohio St. 147, 187 N.E. 2
       (1933), paragraph five of the syllabus], and Deming. For example, the
       Ninth District Court of Appeals held the following:

       [W]hether or not the [individual with the right of way] exercised his
       common-law duty of ordinary care is not a consideration in determining
       whether [that individual] was proceeding in a lawful manner. Only after it
       has been found that the [individual with the right of way] is not proceeding
       in a lawful manner, by violating a law or ordinance, does the consideration
       of [that individual’s] common-law duty to use ordinary care come into play.
        Holding v. Chappel, 41 Ohio App.3d 250, 252, 535 N.E.2d 350 (9th
       Dist.1987). See also Roehm v. Cramer, 1st Dist. No. C-980009, 1998 Ohio
       App. LEXIS 6431, 1998 WL 906342 (Dec. 31, 1998); Mid-American Natl.
       Bank and Trust Co. v. Chrysler Corp., 6th Dist. No. 94WD007, 1994 WL
       455657 (Aug. 19, 1994); Ramos v. Kalfas, 8th Dist. No. 64806, 1994 Ohio
       App. LEXIS 2171 (May 19, 1994).

       Thus, [the individual with the right of way] must use ordinary care * * *.

       Deming, 24 Ohio St.2d 179, 265 N.E.2d 554, paragraph five of the syllabus.

        This duty only arises, however, after the other driver or pedestrian has

       failed to yield and after the [individual] with the right of way has realized

       that there is a clearly dangerous condition in the right of way.          See

       Mid-American Natl. Bank and Trust Co., supra. Therefore, the [individual

       with] the right of way is not required to anticipate that this situation might

       occur, and may proceed along the right of way under the assumption that

       the right of way will be respected. Timmins v. Russomano, 14 Ohio St.2d

       124, 127, 236 N.E.2d 665 (1968); Deming at 181.

       {¶24} Similarly, in Vavrina v. Greczanik, 40 Ohio App.2d 129, 135, 318 N.E.2d

408 (8th Dist.1974), this court held as follows:

       [The individual with the] right of way has the right to proceed
       uninterruptedly in a lawful manner in the direction in which it is moving in
      preference to another vehicle approaching from a different direction into its
      path ( R.C. 4511.01 (TT)). * * * In order for a person to keep his right of
      way, such preferred party must * * * proceed in a lawful manner * * *.

      The law gives to the [individual with] the right of way a shield, an absolute
      right to proceed uninterruptedly, but he forfeits the shield if he fails to
      proceed in a lawful manner. Beers v. Wills (1962), 172 Ohio St. 569, 571.

      In this case, the defendant had the right of way unless he was not
      proceeding in a lawful manner. Morris, 127 Ohio St. at 156, 187 N.E. 2;
      Deming v. Osinski (1969), 21 Ohio App.2d 89, aff’d 24 Ohio St.2d 179.

      To be proceeding in a lawful manner a person must be complying with the
      Ohio traffic laws.

Accord Reinoehl v. Trinity Universal Ins. Co., 130 Ohio App.3d 186, 193, 719 N.E.2d

1000 (10th Dist.1998); Walsh v. Reither, 6th Dist. Lucas No. L-12-1214,

2013-Ohio-1840, ¶ 13.

      {¶25}   In   Carrozza    v.   Landis,   10th   Dist.   Franklin   No.   11AP-1009,

2012-Ohio-6194, ¶ 15, the court also recognized that “[i]n order to proceed in a lawful

manner, a person must be complying with Ohio traffic laws.” Id., citing to Cramer v.

Detrick, 2d Dist. Montgomery No. 13583, 1993 Ohio App. LEXIS 5363 (Nov. 10, 1993),

and Morris, 127 Ohio St. 147, 187 N.E. 2.        Accord Fedj v. Klinkiewicz, 8th Dist.

Cuyahoga No. 39570, 1979 Ohio App. LEXIS 10019 (Oct. 25, 1979).

      {¶26} Additionally, the law presumes that the individual with the right-of-way is

proceeding lawfully, meaning in compliance with all Ohio traffic laws.          Liegel v.

Bainum, 12th Dist. Clermont No. CA2011-06-049, 2011-Ohio-6022, ¶ 13; In re Neill, 160

Ohio App.3d 439, 2005-Ohio-1696, 827 N.E.2d 811, ¶ 10 (3d Dist.).
       {¶27} A defendant who asserts that the opposing party’s right-of-way has been

forfeited is required to present evidence rebutting the presumption that the opposing

party was proceeding in a lawful manner. Liegel; In re Neill, citing State v. Harris,

12th Dist. Clinton No. CA91-06-012, 1991 Ohio App. LEXIS 6316 (Dec. 30, 1991).

       {¶28} Thus, as long as the decedent proceeded lawfully and without violating any

statute or ordinance, she was entitled to maintain her statutory right to proceed

uninterruptedly while crossing the intersection. In order to show that the decedent’s

right-of-way was forfeited, the defendant was required to present evidence that she

violated the traffic laws. Absent that showing, the decedent’s common-law duty to

exercise ordinary care and any contributory or comparative negligence were not proper

issues for the jury.

       {¶29} This showing was not made herein. The defense did not demonstrate that

the decedent violated any traffic law or ordinance by which she would forfeit her

preferential status. The evidence of record indicated that the tow truck was stopped near

the stop bar, which is about 11 feet back from the crosswalk. The evidence further

demonstrated that the decedent began to cross in the crosswalk once the light in her

direction changed.     She was permitted to proceed under the assumption that the

right-of-way will be respected and was not required to anticipate that the tow truck

operator, who was behind her, would violate her right-of-way. In short, the trial court

conflated the decedent’s statutory right-of-way to proceed uninterruptedly in a lawful

manner, in preference to another vehicle, with a general common law duty to use ordinary
care, in the absence of any evidence to establish that her right-of-way as forfeited. The

court’s instruction that the parties are required to use ordinary care in order to discover

and avoid danger erroneously relegated both parties to the rules of care existing at

common law.      The court’s instructions regarding the common law obligations and

comparative negligence were erroneous as a matter of law.

                                    Continue to Look

       {¶30}         Pedestrians with the statutory right-of-way have an absolute right to

proceed uninterruptedly in the direction in which they are moving and need not look for

vehicles violating the right-of-way. Havens v. Precision Strip, Inc., 2d Dist. Miami No.

2007 CA 1, 2007-Ohio-4082, ¶ 10; Lydic v. Earnest, 7th Dist. Mahoning No. 02 CA 125,

2004-Ohio-3194, ¶ 3-33. See also Deming, 24 Ohio St.2d 179, 181 (rejecting the

notion that individual with the right-of-way must “look, look effectively, and continue to

look and remain alert.”); Higgins v. Bennett, 12th Dist. Clinton No. CA99-08-022, 2000

Ohio App. LEXIS 827 (Mar. 6, 2000) (individual with statutory right-of-way has no duty

to keep an “effective look out” for those violating right-of-way). The individual with the

right-of-way is not required to anticipate that others will enter his or her right-of-way and

is entitled to proceed under the assumption that the right-of-way will be respected.

Wallace, 6th Dist. Lucas No. L-11-1052, 2012-Ohio-623, at ¶ 13.

       {¶31} Moreover, there is no duty to look for danger unless there is reason to expect

it. Timmins, 14 Ohio St.2d 124, 127, 236 N.E.2d 665; Hawkins v. Shell, 8th Dist.
Cuyahoga No. 72788, 1998 Ohio App. LEXIS 2406 (June 4, 1998); Markley v. Knutson,

3d Dist. Marion No. 9-96-29, 1996 Ohio App. LEXIS 4313 (Sept. 26, 1996).

       {¶32} In this matter, the court instructed the jury in relevant part that:

        The parties are required to use ordinary care in order to discover and avoid
       danger.

       A person is negligent if they look but do not see that which would have
       been seen by a reasonably prudent person under the same or similar
       circumstances.

       A person is negligent when they do not continue to look if, under the
       circumstances, a reasonably prudent person would have continued to look.

       Every person has the right to assume, in the absence of notice or knowledge
       to the contrary, that others on the highway will observe the law.

       Action by a person based upon the assumption that others will obey the
       statutes is not a failure to use ordinary care, unless such person has notice or
       knowledge that the other party is proceeding in violation of a statute.


       {¶33} We conclude that these instructions erroneously failed to convey to the jury

that a pedestrian with the statutory right-of-way is not required to continuously look for

drivers violating the right-of-way.     In addition, the court’s charge did not properly

reconcile the statutory preferential treatment of the person in the right-of-way and the

common law requirement of exercising due care, in order to properly instruct the jury that

the pedestrian in the right-of-way has no duty to look for danger unless there is reason to

expect it, and that the pedestrian must exercise due care to avoid a collision in her

right-of-way after discovering a dangerous or perilous situation. Therefore, the trial

court erred as a matter of law.
       {¶34}    Moreover, in this matter, the evidence demonstrated that the tow truck

was stopped near the stop bar, which is about 11 feet back from the crosswalk, and had

the better opportunity to see the decedent, who was forward of the truck. The relevant

question for the jury was not whether the tow truck operator saw the decedent, but

whether he should have as he made a right-hand turn into her path of travel. Conversely,

the tow truck was essentially behind the decedent as she started to cross, and therefore,

she was not in a good position to determine whether the tow truck operator would violate

her right-of-way.

       {¶35} This portion of the assignment of error is therefore well taken.



               Suddenly Leaving the Curb Pursuant to R.C. 4511.46(B)

       {¶36} Under R.C. 4511.46(B),

       [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.

Thus, pedestrians are “prohibited by law from leaving the curb or place of safety and

entering the right of way of a motor vehicle.” Joyce v. Rough, 6th Dist. Lucas No.

L-10-1368, 2011-Ohio-3713, ¶ 16.          As noted previously, under R.C. 4511.13,

vehicular traffic facing a circular green signal may proceed straight through or turn right,

but the vehicle turning right shall yield the right-of-way to pedestrians lawfully within the

adjacent crosswalk. Pedestrians with the right-of-way have an absolute right to proceed

uninterruptedly in the direction in which they are moving and need not look for vehicles
violating the right-of-way. Havens, 2d Dist. Miami No. 2007 CA 1, 2007-Ohio-4082.

Further, once the pedestrian established her right-of-way in a crosswalk, the driver has a

duty pursuant to R.C. 4511.46(A) to yield and the pedestrian is not deemed to have left a

place of safety pursuant to R.C. 4511.46(B). Johnson v. Albers, 1st Dist. Hamilton No.

C-110628, 2012-Ohio-1367, ¶ 27-28; Lockwood v. Morgan, 12th Dist. Butler No.

CA90-05-092, 1991 Ohio App. LEXIS 5399 (Nov. 12, 1991).

      {¶37} Here, the trial court instructed the jury that:

      A pedestrian facing a pedestrian controlled signal indicating “walk” may
      proceed or walk across the roadway in the direction of the signal. And they
      have the right of way over all vehicles, streetcars and/or trolleys.

      However, a pedestrian must not suddenly leave a curb and walk or run into
      the path of a vehicle which is so close that it causes immediate hazard.

      {¶38} In this matter, the court’s charge failed to instruct the jury that once the

pedestrian established her right-of-way in a crosswalk, the driver has a duty pursuant to

R.C. 4511.46(A) to yield and the pedestrian is not deemed to have left a place of safety

pursuant to R.C. 4511.46(B). Therefore, this portion of the charge is erroneous as a

matter of law.

      {¶39} Moreover, Schmidt testified that he simply did not see the decedent.      The

evidence indicated that Schmidt was at the “stop bar” at the red light on Front Street at

Bagley Road, and the decedent was at the pedestrian pad immediately adjacent to

crosswalk for traversing Bagley Road. After the light changed, Schmidt began to turn,

and the decedent crossed the street. The evidence demonstrated that she had established

her right-of-way because she was 12 to 14 feet into the crosswalk when she was struck, so
she cannot, as a matter of law, be deemed to have left a place of safety pursuant to R.C.

4511.46(B). Rather, the evidence indicated that the decedent had the right-of-way in the

crosswalk, and therefore, had an absolute right to proceed uninterruptedly. The decedent

established her right-of-way, in a crosswalk, with the light, and therefore, the tow truck

driver had the duty pursuant to R.C. 4511.46(A) to yield as a matter of law. The

decedent did not leave a place of safety pursuant to R.C. 4511.46(B). Indeed, even the

expert retained by the defense admitted that the expert acknowledged that this instruction

was inapplicable herein. (Tr. 336.) Therefore, in this matter, the trial court committed

prejudicial error in instructing the jury on the issue of the decedent suddenly leaving the

curb.

        {¶40} The second assignment of error is well taken.

        {¶41} Based on our disposition of the second assignments of error, the remaining

assignments of error are moot. See App.R.12(A)(1)(c).

        {¶42} Judgment reversed and remanded.

        It is ordered that appellants recover from appellees costs herein taxed.

        The court finds there were reasonable grounds for this appeal.

        It is ordered that a special mandate be sent to said court to carry this judgment into

execution.

        A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.
MARY EILEEN KILBANE, JUDGE

KENNETH A. ROCCO, J., CONCURS (SEE SEPARATE OPINION);
MARY J. BOYLE, P.J., DISSENTS (SEE SEPARATE OPINION)


KENNETH A. ROCCO, J., CONCURRING:

       {¶43} I write separately in this case for two reasons. First, I believe appellants’

first assignment of error also has merit. Because the issue may arise again in the trial

court, I would address it to prevent the error from reoccurring.

       {¶44} Second, I wish to convey in the strongest terms my agreement with the

disposition made by the majority opinion.        I quake at the thought that the opinion

expressed in the dissent would become the law.

       {¶45} Appellants argue in their first assignment of error that the trial court abused

its discretion in permitting appellees to cross-examine a witness concerning a “collateral

source,” i.e., Medicare. Appellants correctly assert this line of questioning, even if it

could be said to have been permitted by R.C. 2315.20(A), which it is not, lacked a proper

foundation.

       {¶46} In Adae v. State, 10th Dist. Franklin No. 12AP-406, 2013-Ohio-23, the court

recently summarized the “collateral source” rule as follows:

       In general, the appropriate measure of damages in a tort action is that which will
make the plaintiff whole. See Robinson v. Bates, 112 Ohio St.3d 17, 2006-Ohio-6362, ¶
11, 857 N.E.2d 1195, citing Pryor v. Webber, 23 Ohio St.2d 104, 107, 263 N.E.2d 235
(1970). As a corollary, the state has a legitimate interest in preventing double recoveries
by tort victims. McKinley v. Ohio Bur. of Workers' Comp., 170 Ohio App.3d 161,
2006-Ohio-5271, ¶ 18, 866 N.E.2d 527 (4th Dist.), citing Holeton v. Crouse Cartage Co.,
92 Ohio St.3d 115, 121-22, 2001-Ohio-109, 748 N.E.2d 1111 (2001). Under the
common-law collateral-source rule, evidence of compensation a plaintiff received from
collateral sources was not admissible to diminish the damages a tortfeasor was required
to pay for his negligent act. Pryor at paragraph two of the syllabus. Accordingly, under
the collateral-source rule, a plaintiff who has, for example, had his medical expenses paid
by another may still recover full damages for those expenses from a defendant who is
liable for the plaintiff's injury. Id. at 108, quoting 2 Harper and James, The Law of Torts,
Section 25.22 at 1343. “‘To this extent, [the] plaintiff may get double payment on account
of the same items.’” Id. In this way, the collateral-source rule operated as an exception to
the traditional measure of damages and “‘prevent[ed] the jury from learning about a
plaintiff’s income from a source other than the tortfeasor”’ so that a tortfeasor would not
be given an advantage from third-party payments to the plaintiff. Jaques v. Manton, 125
Ohio St.3d 342, 2010-Ohio-1838, ¶ 7, 928 N.E.2d 434, quoting Robinson at ¶ 11.

       State legislatures, including the General Assembly, have wrestled with statutory
approaches to the collateral-source rule in the evolving landscape of tort law. See Hanson,
Ohio’s Collateral Source Rule Following Robinson v. Bates and the Enactment of Ohio
Revised Code Section 2315.20, 40 U.Tol.L.Rev. 711, 720-21 (2009). Since Pryor, which
defined the Ohio collateral-source rule, the General Assembly has enacted many statutes
to limit the effect of the rule. * * * Currently, in non-medical-malpractice cases against
private defendants, R.C. 2315.20(A) provides that a “defendant may introduce evidence
of any amount payable as a benefit to the plaintiff as a result of the damages that result
from an injury, death, or loss to person or property that is the subject of the claim upon
which the action is based,” unless the collateral source has a right of subrogation. * * *
R.C. 2315.20 addresses the admissibility of evidence.
(Emphasis added.)

       {¶47} Appellees’ attorney asked Dale Anderson on cross-examination if he were

aware that Medicare had a “lien” against his mother’s estate “only for $29,078.37,” thus

implying that the decedent’s medical expenses (and, by extension, her injuries resulting

from the accident) were minor (despite the fact that she died). Surely, a collateral

source’s “right” to institute a lien may be considered to be inadmissible pursuant to R.C.

2315.20(A) in the same manner as a right to subrogation.

       {¶48} Moreover, even if a collateral source has no right of subrogation, R.C.

2317.421 codifies a rebuttable presumption that the amount charged by the medical
       provider is the reasonable value of the services rendered. If the defendant wishes to

       overcome the presumption, the defendant must present cognizable evidence to that effect.

        The court in Moretz v. Muakkassa, 9th Dist.

       Summit No. 25602, 2012-Ohio-1177 (currently on appeal to the Ohio Supreme Court)

       observed:

                      As the reasonable value of medical services is outside the common
               knowledge of laymen, expert testimony is necessary as a foundation for
               presentation of this evidence to the jury. See Evid. R. 702(A). For plaintiffs
               seeking to present amounts charged as evidence of the reasonable value of
               medical services rendered, the General Assembly has codified a rebuttable
               presumption in that regard, obviating the need for expert testimony. R.C.
               2317.421. Under the statute, in the absence of contrary evidence, the
               amount charged will be sufficient to prove the reasonable value of the
               medical services. Defendants seeking to introduce evidence of write-offs do
               so in an effort to contradict that statutory presumption.

              Defendants offer evidence of write-offs in hopes that juries will determine the
       reasonable value of the medical services was actually equal to the amount charged minus
       the amount written off by the provider. See Evans v. Thobe, 195 Ohio App.3d 1, 2011
       Ohio 3501, at ¶ 18, 958 N.E.2d 616 (2d Dist). Despite the Ohio Supreme Court’s holding
       in Jaques [125 Ohio St.3d 342, 2010-Ohio-1838, 928 N.E.2d 434] that such evidence is
       relevant and admissible, there is no presumption or shortcut available to allow such
       evidence to be introduced without a proper foundation.

       {¶49} In this case, appellees’ attorney told Anderson during cross-examination that Medicare

had a lien against his mother’s estate in the amount of $28,400.27. Appellees offered no evidence of

this “fact.”   The only documents introduced into evidence indicated the decedent was billed for

$173,615.32 in medical expenses. Consequently, the trial court should have sustained appellants’

objection to this line of questioning. I believe appellants’ first assignment of error should be sustained.

       {¶50} As for my second reason to write separately, while I realize that truck drivers may be the

“kings of the road,” a crosswalk controlled by a signal device is the only safe place that a pedestrian
has. Thus, if the dissent had its way and the jury instructions given by the trial court in this case were

to stand, such a crosswalk would no longer be a safe haven.

       {¶51} Appellees in this case based their defense on the assertion that the decedent failed to

exercise ordinary care for her own safety. According to their cross-examination of the appellants’

witnesses, and to the evidence appellees themselves introduced, the decedent, even if she were already

off of the ramp and actually on the crosswalk, should have stopped her progress across Bagley Road

when she heard the tow truck’s air brakes disengage, and she should have seen out of her peripheral

vision that the truck was starting to make its turn.

              {¶52} Appellees went even further: indeed, before even starting across, the

       decedent should have looked behind her and to her left, noticed the truck was waiting to

       make its turn, and yielded to it. Thus, the decedent’s heedlessness of these visual and

       subsequent auditory warnings made her comparatively negligent with Schmidt.

              {¶53} Appellees made these arguments despite the facts that the decedent was 75

       years old, no one knew what state either her hearing or her peripheral vision was in, she

       was in a marked crosswalk with a signal that permitted her to cross at the time Schimdt’s

       truck struck her, and she came to rest underneath the truck between 12 to 14 feet from the

       curb. Apparently, she was amazingly spry for an elderly woman.

              {¶54} A review of the record reveals the trial court was taken in by these

       arguments, because, although at the conclusion of the appellees’ case, the trial court

       granted appellants’ motion for a directed verdict against appellees on “the issue of
       proximate cause,” 1 the court nevertheless inexplicably began its jury instructions as

       follows:

                     * * * It is your sworn duty to accept these instructions and apply the
              law as I give it to you. * * *

              The estate of Priscilla Anderson claims that Bob Schmidt was negligent in the
       operation of his motor vehicle. Therefore, the issue you must decide is whether the
       defendant was negligent in any respect. And, if so, was the negligence of the defendant a
       proximate cause of any harm sustained by the plaintiff.

              The defendants also claim that Priscilla Anderson was comparatively negligent.
       So you must decide whether the plaintiff was negligent in any respect. And, also, did the
       negligence of the plaintiff contribute to proximately cause her own injury.
        (Emphasis added.)

       {¶55} The foregoing illustrates the trial court’s own confusion after listening to the persuasive

power of appellees’ attorney. The trial court thereafter provided an instruction based upon R.C.

4511.46(B), which applies only when “traffic control signals are not in place.”

       {¶56} In this case, however, only R.C. 4511.13(A) applied. The relevant portion of that statute

states that vehicles “shall” yield the right of way to pedestrians who are “lawfully within” the

crosswalk. Conversely, a pedestrian must yield the right of way only to vehicles that are “within” the

intersection “or so close as to create an immediate hazard at the time that the green signal indication is

first displayed.” (Emphasis added.) Schmidt himself testified that he proceeded into his turn only

when the light turned green; he maintained that he did not begin his turn on red. If he had been




              1From  the facts presented in this case, the trial court should have directed a
       verdict in appellants’ favor on the issue of liability, rather than merely “proximate
       cause.” See, e.g., Balish v. Ohio Dept. of Transp., 10th Dist. Franklin No.
       01AP-668, 2002-Ohio-620.
looking where he should have been looking at the time he began his turn, therefore, he would have seen

the decedent in his field of view.

               {¶57} The dissent sides with appellees. Therefore, if the dissent held sway in this

       appeal, the truck driver, who had the better view due to the height of the cab and his

       perspective of looking to his right to make a right turn, would be absolved of the majority

       of liability for his actions. Pedestrians would, perhaps literally, be a dying breed.

       MARY J. BOYLE, P.J., DISSENTING:

               {¶58} I respectfully dissent. It is my view that the trial court properly charged the

       jury based on the evidence presented. I cannot agree that a new trial is warranted under

       the facts of this case.

               {¶59} While it is true that Anderson enjoyed a preferential status under the law and

       had the right of way, we cannot say that her right was absolute based on the facts of this

       case.    In this case, Schmidt presented evidence that, if believed, established that

       Anderson should have seen Schmidt’s 50-ton tow truck turning into her right of way,

       creating an extremely perilous situation. Indeed, according to Annette Washington — an

       eyewitness to the accident — Anderson was not yet in the crosswalk at the time that

       Schmidt began to turn right into the center westbound lane on West Bagley Road after the

       light turned green.       Indeed, Washington testified that Anderson did not enter the

       crosswalk until after Schmidt had begun to turn right. The defense further established

       that Schmidt was driving a four-axle, 50-ton wrecker tow truck — a vehicle that displays

       eight visible flashing lights located on the passenger side of the vehicle when the turn
signal is activated. According to a photograph taken by the Berea Police Department

after the accident, the turn signals of the truck were still flashing. The defense also

established that this type of vehicle is not silent. As explained by both Schmidt and the

defense’s expert, Richard Stevens, Schmidt’s truck makes the normal sounds of a large

diesel engine, which includes a “loud hissing sound” when the driver’s foot is removed

from the brakes as a result of air releasing from the brake chambers.

       {¶60} Taking into consideration the size and sound of the vehicle, coupled with

the fact that the tow truck had began turning with it lights flashing prior to Anderson

even entering the crosswalk, I find that these facts warranted a comparative negligence

and duty to look instruction. Indeed, these circumstances should have alerted Anderson

to an obvious danger despite her having the right of way. The refusal to provide a

comparative negligence instruction in this case would have been tantamount to saying

that the law rewards pedestrians who blindly ignore obvious perils. The Ohio Supreme

Court has made clear that this is not the case. See, e.g., Horwitz v. Eurove, 129 Ohio St.

8, 193 N.E. 644 (1934) (recognizing that even though the plaintiff-pedestrian clearly had

the right of way, “such pedestrian is still under the legal duty to exercise ordinary care for

his own safety; and whether he has done so in a particular case is a jury question where

the evidence is conflicting”); Grass v. Ake, 154 Ohio St. 84, 88, 93 N.E.2d 590 (1950)

(contributory negligence instruction is necessary when the evidence reveals that

pedestrian with the right of way “utterly disregarded the circumstances surrounding her as

she crossed Bedford Avenue and shut her eyes to the dangers of automobile traffic”).
        {¶61} Contrary to the majority’s assertion, I find that Anderson’s common-law

duty to exercise ordinary care arose in this case because a reasonable juror could conclude

that Anderson ignored an obvious dangerous situation, despite having the right of way.

Notably, it is stipulated that Schmidt did not see Anderson. And based on the defense’s

witnesses, the jury could have found that it was impossible for Schmidt to see Anderson

when she entered the crosswalk. It is further stipulated that the tow truck did not hit

Anderson head-on — the initial impact was about 6.5 feet back from the front of the

truck. Like the Ohio Supreme Court in Ake, I refuse to find as a matter of law that a

pedestrian, who has the right of way, is proceeding in a “lawful” manner when such

pedestrian blindly ignores an obvious peril.

        {¶62} Finally, I do not agree that the trial court erred in providing an instruction on

R.C. 4511.46(B) regarding a pedestrian suddenly leaving a curb. Evidence that Schmidt

had already begun to turn prior to Anderson entering the crosswalk and that the impact

occurred only 3.4 seconds after Anderson started to walk forward from the pedestrian pad

of the sidewalk supported the instruction.

        {¶63} Accordingly, because I find that the trial judge properly instructed the jury

in this case, I would overrule the second assignment of error and affirm the jury verdict in

its entirety.
