[Cite as Sherer v. Progressive Select Ins. Co., 2017-Ohio-7278.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                      LUCAS COUNTY


Kory Sherer, et al.                                          Court of Appeals No. L-17-1033

        Appellants                                           Trial Court No. CI0201603250

v.

Progressive Select Insurance                                 DECISION AND JUDGMENT
Company, et al.

        Appellees                                            Decided: August 18, 2017


                                                   *****

        Jonathan M. Ashton, for appellants.

        Robert J. Bahret and Christine M. Gaynor, for appellees.

                                                   *****

        OSOWIK, J.

        {¶ 1} This is an appeal from a February 7, 2017 summary judgment ruling of the

Lucas County Court of Common Pleas, granting summary judgment to appellee. This

case arises from a July 22, 2015 collision between appellant’s bicycle and a motorcycle
occurring on W. Sylvania Ave. at Commonwealth Ave. in Toledo. For the reasons set

forth below, this court affirms the judgment of the trial court.

       {¶ 2} Appellants, Kory and Stephanie Sherer, set forth the following assignment

of error:

              I. The trial court erred when it granted summary judgment in favor of

       Appellee Progressive Select Insurance Company.

       {¶ 3} The following undisputed facts are relevant to this appeal. On July 22,

2015, appellant Kory Sherer was riding his bicycle home after leaving work. Sherer was

traveling on his bicycle on the sidewalk along W. Sylvania Ave. near Jackman Rd. in

Toledo. Sherer stopped his bicycle where Commonwealth Ave. ends at W. Sylvania

Ave.

       {¶ 4} Sherer wanted to cross W. Sylvania Ave. in that vicinity as he resided on a

side street off of the opposite side of W. Sylvania Ave. Notably, the location selected by

Sherer in which to cross this heavily travelled portion of W. Sylvania Ave. on his bicycle

has no crosswalk, no traffic light, and no traffic device of any kind which would require

the motor vehicle traffic traveling along W. Sylvania Ave. to stop or yield to pedestrians

or any other non-motor-vehicle traffic.

       {¶ 5} Unfortunately, despite an oncoming motorcycle traveling down W. Sylvania

Ave. heading towards him in extremely close proximity, located two car lengths away,

Sherer began to bicycle across W. Sylvania Ave. Appellant bicycled into the path of the

oncoming motorcycle, was struck by the motorcycle, and sustained a dislocated left

shoulder.

2.
       {¶ 6} An eyewitness who was driving his motor vehicle in the opposite direction

down W. Sylvania Ave. at the time of the incident testified at deposition that the

motorcycle appeared to be traveling somewhere in the range of 35-40 m.p.h. in the 35

m.p.h. speed limit zone at the time of the collision. The eyewitness further testified that

the motorcyclist would have been unable to avoid colliding with appellant regardless

given the extremely close proximity when appellant “bolted” from the sidewalk into the

path of the oncoming motorcycle.

       {¶ 7} The motorcyclist left the scene and has not been identified. Following this

incident, appellant filed a claim against his insurer, Progressive, claiming applicable

coverage pursuant to the uninsured motorist policy provision. Progressive denied

coverage. Following the denial of the claim, appellant filed suit.

       {¶ 8} On December 13, 2016, the depositions of appellant and the above-

referenced eyewitness were taken. The evidence reflects that appellant crossed W.

Sylvania Ave. on a bicycle at a location lacking a crosswalk, traffic light, or any traffic

control device of any kind which would require motor vehicle traffic to stop and yield at

that location.

       {¶ 9} The evidence further reflects that at the time and location where appellant

decided to cross W. Sylvania Ave., the oncoming motorcycle was in extremely close

proximity, two car lengths away, and would have been unable to avoid the collision

regardless of whether travelling at the speed limit or not.




3.
       {¶ 10} On January 3, 2017, following discovery, Progressive filed for summary

judgment. Appellant filed a brief in opposition. On February 7, 2017, the trial court

granted summary judgment to Progressive, holding in pertinent part, “The argument

posits that since the motorcycle was or could have been speeding * * * [T]he motorcycle

was at least partially at fault * * * However, even if the motorcyclist was exceeding the

posted speed limit by 5-10 m.p.h. (a fact upon which the evidence is not clear), the

collision would have nevertheless occurred according to the evidence.” This appeal

ensued.

       {¶ 11} In the sole assignment of error, appellants maintain that the trial court erred

in granting summary judgment to Progressive. We do not concur.

       {¶ 12} It is well-settled that appellate court review of a disputed summary

judgment ruling is conducted on a de novo basis, applying the same standard as that used

by the trial court. Lorain Nat’l Bank v. Saratoga Apts., 61 Ohio App.3d 127, 572 N.E.2d

198 (9th Dist.1989); Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 671 N.E.2d 241

(1996). Summary judgment will be granted when there remains no genuine issue of

material fact and, when construing the evidence most strongly in favor of the nonmoving

party, reasonable minds can only conclude that the moving party is entitled to judgment

as a matter of law. Civ.R. 56(C).

       {¶ 13} We have carefully reviewed and considered the record of evidence in this

matter to assess whether it reflects that no genuine issue of material fact remains such

that appellee is entitled to judgment as a matter of law.



4.
         {¶ 14} The record reflects that on July 22, 2015, appellant attempted to cross W.

Sylvania Ave. on his bicycle despite oncoming motor vehicle traffic in extremely close

proximity in a location that lacked a crosswalk, traffic light, or any other traffic control

device which would have arguably created a potential duty to the oncoming motor

vehicle traffic to yield to appellant.

         {¶ 15} The record reflects from the deposition testimony of an eyewitness who

was traveling down W. Sylvania Ave. in his motor vehicle in the direction opposite the

motorcycle at the time of the accident that the motorcycle would have been unable to stop

in time to avoid the collision whether or not the motorcyclist was traveling at the speed

limit.

         {¶ 16} In conjunction with this, the eyewitness testimony also significantly

reflects that appellant did not look for oncoming traffic prior to “bolting” into W.

Sylvania Ave.

         {¶ 17} The record of evidence presented in this matter reflects no set of

circumstances in which anyone could be deemed to have breached a duty to appellant

such that proximate cause and liability could potentially be attributed.

         {¶ 18} As held in Westfall v. Lemon, 4th Dist. Washington No. 14-CA-12, 2015-

Ohio-384, at ¶ 23, “[W]here no facts are alleged justifying any reasonable inference that

the acts or failure of the defendant constitute the proximate cause of the injury, there is

nothing for the jury to decide, and, as a matter of law, judgment must be given for the

defendant.”



5.
       {¶ 19} Similarly, in the instant case, no evidence was presented supporting any

reasonable inference through which any proximate cause could be attributed in this

matter to the motorcyclist or anyone other than appellant. As such, there remains no

genuine issue of material fact, and reasonable minds may only conclude that Progressive

is entitled to judgment as a matter of law. Wherefore, we find appellants’ assignment of

error to be not well-taken.

       {¶ 20} Based upon the foregoing, the judgment of the Lucas County Court of

Common Pleas is hereby affirmed. Appellants are ordered to pay the costs of this appeal

pursuant to App.R. 24.

                                                                      Judgment affirmed.

       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.


Arlene Singer, J.                              _______________________________
                                                           JUDGE
Thomas J. Osowik, J.
                                               _______________________________
James D. Jensen, P.J.                                      JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE




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