[Cite as Cleveland Elec. Illum. Co. v. Major Waste Disposal, 2016-Ohio-7442.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                        LAKE COUNTY, OHIO


CLEVELAND ELECTRIC ILLUMINATING                         :           OPINION
COMPANY,
                                                        :
                 Plaintiff,
                                                        :           CASE NOS. 2015-L-104
THE OHIO BELL TELEPHONE                                                   and 2015-L-105
COMPANY,                                                :

                 Plaintiff-Appellant,                   :

        - vs -                                          :

MAJOR WASTE DISPOSAL, et al.,                           :

                 Defendant-Appellee.                    :


Civil Appeals from the Lake County Court of Common Pleas, Case Nos. 14 CV 001957
and 15 CV 000283.

Judgment: Affirmed.


William H. Hunt and Lydia E. Cancilla, W.H. Hunt Legal Group, LLC, 24500 Center
Ridge Road, Suite 170, Westlake, OH 44145; and Edward L. Bettendorf, AT&T, 45
Erieview Plaza, Suite 1400, Cleveland, OH 44114 (For Plaintiff-Appellant).

Michael D. Fitzpatrick, The Cincinnati Insurance Company, 55 Public Square, Suite
930, Cleveland, OH 44113 (For Defendant-Appellee).



CYNTHIA WESTCOTT RICE, P.J.

        {¶1}     Appellant, The Ohio Bell Telephone Company, appeals from the order of

the Lake County Court of Common Pleas, awarding appellee, Major Waste Disposal,

summary judgment on appellant’s negligence claim. We affirm.
      {¶2}   At the time of the incident, Eric Tyson had been employed by appellee for

approximately 13 years. For nine years, he was a “slinger” on a rear-loading garbage

truck; and, prior to the incident, he had been a driver, for four years, on the Mack

garbage truck that is the subject of the underlying suit. For the entirety of his 13-year

employment with appellee, Tyson weekly drove or worked a stretch of Hoose Road in

Concord Township, Lake County, Ohio. On February 20, 2013, Tyson, at approximately

12:00 p.m., was at his last stop on Hoose Road.         After lowering the bucket and

hydraulic arms of the truck, he confirmed there was no garbage on the top of the truck;

he then drove away at approximately 10 m.p.h.        As he trundled forward, his truck

snagged a low-hanging Ohio Bell power line strung diagonally across Hoose Road. In

the 13 years he worked this route, Tyson never encountered a low-hanging aerial line

on Hoose Road.

      {¶3}   On October 8, 2014, the Cleveland Electric Illuminating Company (“CEI”)

filed a complaint against appellee and Tyson. On February 19, 2015, appellant filed its

complaint against appellee and Tyson. Both complaints sounded in negligence.         On

May 6, 2015, appellee and Tyson moved to consolidate the cases. The motion was

granted.

      {¶4}   On July 13, 2015, appellee and Tyson moved for summary judgment. In

the motion, they argued they did not owe a duty of care to either plaintiff because

neither Tyson, nor Major Waste created the low-wire hazard. Moreover, they argued

that even though the wire was drooping, the incident was not foreseeable because in

his 13 years working Hoose Road, he never noticed or observed low-hanging wires.

And, on the day in question, Tyson believed his truck had clearance to travel under the




                                           2
subject line. Attached to the motion was the affidavit filed by Tyson, detailing his

background as an employee for appellee as well as the circumstances of the accident.

       {¶5}    Appellee also attached the affidavit of Ralph P. Dolence, an electrical

contractor who inspected the scene of the incident, interviewed witnesses, and

measured the garbage truck driven by Tyson. At its highest point the truck measured

13’4” from the ground.       He averred the National Electric Safety Code (“NESC”)

standards mandate a minimum vertical clearance of such wires to be 15’5” from the

ground. Given the circumstances of the incident, Dolence averred the line must have

been less than 13’4” from the ground, in violation of the NESC standards.

       {¶6}    Appellant filed a memorandum in opposition, arguing there were genuine

issues of material fact for litigation; namely, whether the low-hanging wire was

reasonably discernible such that Tyson would have been required to take notice of the

hazard to avoid damaging the line; appellant analogized the incident to situations in

which a motorist has an obligation to assure clear distance between herself and another

motorist or object on the road to avoid causing damage to the motorist or object. CEI

relied on the arguments asserted in appellant’s memorandum in opposition; CEI

asserted, however, if the court granted appellee’s and Tyson’s motion for summary

judgment, that determination implied appellant was liable to CEI for the damaged

caused to its property.

       {¶7}    On August 19, 2015, the trial court granted appellee’s motion for summary

judgment.     Appellant filed a timely notice of appeal and assigns two errors for this

court’s review. Its first assignment of error states:




                                              3
       {¶8}   “The trial court erred in granting defendants’ motion for summary judgment

upon the basis that the Ohio Bell aerial cable was below the standard established by the

NESC.”

       {¶9}   Pursuant to Civil Rule 56(C), summary judgment is proper when (1) the

evidence shows “that there is no genuine issue as to any material fact” to be litigated;

(2) “the moving party is entitled to judgment as a matter of law;” and (3) “it appears from

the evidence * * * that reasonable minds can come to but one conclusion and that

conclusion is adverse to the party against whom the motion for summary judgment is

made, that party being entitled to have the evidence * * * construed most strongly in the

party’s favor.” A trial court’s decision to grant summary judgment is analyzed by an

appellate court under a de novo standard of review. Grafton v. Ohio Edison Co., 77

Ohio St.3d 102, 105 (1996). “A de novo review requires the appellate court to conduct

an independent review of the evidence before the trial court without deference to the

trial court’s decision.” (Citation omitted.) Peer v. Sayers, 11th Dist. Trumbull No. 2011-T-

0014, 2011-Ohio-5439, ¶27.

       {¶10} “[I]n order to establish a cause of action for negligence, the plaintiff must

show (1) the existence of a duty, (2) a breach of duty, and (3) an injury proximately

resulting therefrom.” Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d 79, 2003-Ohio-

2573, ¶8.

       {¶11} Under its first assignment of error, appellant concedes that the line

snagged by appellee’s truck was low; it points out, however, the record does not

disclose why the line was low. Appellant further underscores that it had no notice of the

sagging line. Without reasonable notice, appellant asserts, it was under no obligation to




                                             4
exercise reasonable care and address the hazard. Appellant further argues the trial

court erred in applying the NESC standards in entering summary judgment because

there were insufficient facts in the record to correctly apply the NESC.

       {¶12} Preliminarily, appellant filed suit alleging appellee was negligent. Appellee

did not file a counterclaim alleging appellant was negligent. It is accordingly irrelevant

whether appellant breached a duty of care by failing to address the low line. In its

motion for summary judgment, appellee simply argued neither it nor Tyson owed

appellant a duty of care because (1) they did not create the hazard and (2) the

occurrence of the truck snagging the low-hanging line was not foreseeable. Appellant

does not specifically challenge these arguments under its first assignment of error.

       {¶13} Moreover, Dolence, in his affidavit, noted that the NESC standards, which

are applicable in Lake County, Ohio, require a minimum vertical clearance of wires,

such as the one in question, of 15’5” above the ground. Appellant neither challenged

Dolence’s reference to the NESC standards in his affidavit nor did it specifically take

issue with the substantive averments relating to the standards. Appellant accordingly

waived any argument relating to the applicability of the standards.

       {¶14} Appellant’s first assignment of error is without merit.

       {¶15} Appellant’s second assignment of error provides:

       {¶16} “The trial [court] erred in failing to find that the Ohio Assured Clear

Distance Ahead Statute presented a genuine issue of material fact, thereby preventing

summary judgment.”

       {¶17} Appellant contends the trial court erred in awarding summary judgment

because there is a genuine issue of material fact regarding whether Tyson was




                                             5
negligent in failing to assure clear distance, pursuant to R.C. 4511.21, when he

encountered and struck the power line.

      {¶18} R.C. 4511.21(A), Ohio’s assured-clear-distance-ahead statute, provides:

      {¶19} (A) No person shall operate a motor vehicle, trackless trolley, or
            streetcar at a speed greater or less than is reasonable or proper,
            having due regard to the traffic, surface, and width of the street or
            highway and any other conditions, and no person shall drive any
            motor vehicle, trackless trolley, or streetcar in and upon any street
            or highway at a greater speed than will permit the person to bring it
            to a stop within the assured clear distance ahead.

      {¶20} R.C. 4511.21(A) requires a party to produce evidence “(1) that the object

with which [an] operator collided was located ahead of him in his lane of travel, and (2)

that such object was reasonably discernible, and (3) that the object was (a) static or

stationary, or (b) moving ahead of him in the same direction as such operator, or (c)

came into his lane of travel within the assured clear distance ahead at a point

sufficiently distant ahead of him to have made it possible, in the exercise of ordinary

care, to bring his vehicle to a stop and avoid a collision.” McFadden v. Elmer C. Breuer

Transp. Co., 156 Ohio St. 430 (1952), paragraph one of the syllabus.

      {¶21} A violation of R.C. 4511.21(A) is negligence per se. Pond v. Leslein, 72

Ohio St.3d 50, 53 (1995). “[C]ases involving the assured clear distance statute require

evaluation of the conduct of the driver in light of the facts surrounding the collision.”

Purcell v. Norris, 10th Dist. Franklin No. 04AP-1281, 2006-Ohio-1473, ¶16. “Where

conflicting evidence is introduced with respect to the assured-clear-distance-ahead

provision (R.C. 4511.21[A]), the issue of whether an object is reasonably discernible on

a highway * * * is usually a question of fact for a jury to determine.” Sharp v. Norfolk &

W. Ry. Co., 36 Ohio St.3d 172 (1988), syllabus.




                                            6
       {¶22} In support of its position, appellant cites the First Appellate District’s

opinion in Scroff v. Foley Const. Co., 87 Ohio App. 277 (1st Dist.1950). In Scroff, a

motorist was traveling east on a dark, foggy night. He approached a construction site

where a crane had blocked the south half of the road and a “boom,” extending from the

cab of the crane, hung approximately five feet above the road and encroached upon the

northern portion of the road. Upon noticing the crane, the motorist turned his vehicle to

the left onto the northerly half of the road to avoid a collision with the cab of the crane;

as he did so, the boom, which was out of the range of his headlights, struck the top of

the vehicle, causing extensive damage. The driver filed suit and a jury found in his

favor. The court of appeals reversed, based upon the motorist’s testimony and Ohio’s

assured-clear-distance-ahead statute. The court stated:

       {¶23} [A]ccording to plaintiff’s own testimony he had ample warning that a
             dangerous condition existed in the highway. To leave to the jury the
             right to speculate upon whether the plaintiff exercised proper care
             in proceeding is to negative the evident intent of the Legislature to
             permit operation of a motor vehicle upon a highway only when the
             driver can see where he is going and what is in his path. If he
             cannot see, as the plaintiff states he could not, still proceeding
             constitutes a violation of the statute. No sudden emergency is here
             involved. There is no sudden or unexpected entrance of an object
             into the path in which plaintiff was proceeding. The plaintiff
             obviously knew he was in an area of danger, where his lights were
             of little value, and still he drove his automobile into a static object
             fully discernible, except for fog, darkness, and distance. (Emphasis
             sic.) Id. at 288.

       {¶24} This matter is distinguishable from Schroff. In his affidavit, Tyson averred

that, during the 13 years he weekly drove or worked on the route that included Hoose

Road, he had never encountered a low-hanging electrical wire that crossed the road.

On the date of the incident, Tyson asserted he finished his last pick-up, made certain

the hydraulic arms and bucket of his truck were in the down position. He then confirmed



                                             7
there was no garbage on the top of the truck and drove west down Hoose Road at 10

m.p.h. At this point, the line snagged the upper part of Tyson’s truck. Tyson averred,

“[a]t all times prior to and at the time the Ohio Bell line snagged on my truck, I operated

my truck in compliance with Ohio law and kept reasonable lookout for hazardous

conditions. The Ohio Bell line did not appear to be at a height that would come in

contact with my truck.” (Emphasis added.) Tyson further emphasized that, because he

had never observed a low-hanging overhead line, he had no reason to believe the line

in question would be at a height low enough to come in contact with the truck.

      {¶25} “‘The word “discernible” ordinarily implies something more than “visible.”

“Visible” means perceivable by the eye whereas “discernible” means mentally

perceptible or distinguishable, -- capable of being “discerned” by the understanding and

not merely by the senses.’” (Emphasis sic.) McFadden v. Elmer C. Breuer Transp. Co.,

156 Ohio St. 430, 441-442 (1952), quoting Colonial Trust Co., Admr. v. Elmer C.

Breuer, Inc., 363 Pa. 101 (1949).         Accordingly, “‘[d]iscernible’’ means cognitive

awareness while ‘visible’ means merely capable of being seen.” Tritt v. Judd’s Moving

& Storage, Inc., 62 Ohio App.3d 206, 217 (10th Dist.1990).

      {¶26} In the instant case, there is no evidence that Tyson or appellee had any

warning of the low-hanging line and had no reason to be concerned that a power line,

on Hoose Road, might be hanging low. Tyson’s affidavit indicates he may have “seen”

the wire; nevertheless, his affidavit negates the inference that he had an awareness or

understanding that the line was a discernible hazard. Tyson’s uncontested testimony

consequently demonstrates that, from his vantage point as the driver of the truck, the

hazard was not reasonably discernible at the time he proceeded under the line.




                                            8
Accordingly, he would not obviously know and would have no reason to be concerned

that his truck would be in danger of striking the line.

          {¶27}   Although appellant contends the discernibility of an object is a question

of fact, it failed to produce any evidence that the low-hanging line was reasonably

discernible at the time of the incident. That is, it failed to produce evidence that a

reasonable individual in Tyson’s position would understand or cognitively appreciate

that the line was low-hanging. Because there is no conflicting evidence on the issue of

the discernibility of the object, there is no genuine issue of fact on this element. We

accordingly hold appellant failed to create a triable issue on the application of the

assured-clear-distance-ahead statute and appellee was entitled to judgment as a matter

of law on this theory.

          {¶28} Appellant’s second assignment of error lacks merit.

          {¶29} For the reasons discussed in this opinion, the judgment of the Lake

County Court of Common Pleas is affirmed.



TIMOTHY P. CANNON, J., concurs,

THOMAS R. WRIGHT, J., dissents with a Dissenting Opinion.

                                   _____________________


THOMAS R. WRIGHT, J., dissents with a Dissenting Opinion.


          {¶30} I agree with the majority’s recitation of the law, however, I disagree with its

result.




                                                9
        {¶31} “Whether an object is ‘reasonably discernible’ * * * is ordinarily a question

of fact, and when reasonable minds can reach different conclusions from the evidence

presented upon the question, the trial court should not decide the case as a matter of

law.” Mincy v. Farthing, 1st Dist. Hamilton No. C-081032, 2009-Ohio-5245, ¶18; Blair v.

Goff-Kirby Co., 49 Ohio St.2d 5, 9-10, 358 N.E.2d 634 (1976) (noting that virtually all

other states hold that discernibility is a jury question); Venegoni v. Johnson, 10th Dist.

Franklin No. 01AP-1284, 2002-Ohio-1988, *15.

        {¶32} The facts are not in dispute. Tyson saw the power line before hitting it.

However, he did not realize that it was “at height that would come in contact with [his]

truck.” Thus, because he did not appreciate the danger, he did not attempt to avoid it.

        {¶33} A driver’s ability to appreciate the danger is seldom discussed, and in

spite of an expansive search, I have been unable to find any cases analyzing this issue.

Accordingly, we must decide whether “appreciation” of the danger is encompassed

within discernibility. I find it is.

        {¶34} Two issues are repeatedly discussed throughout discernibility case law as

they are usually the only issues. One, was the object visible, and two, if the object was

visible, was it visible in sufficient time to allow the driver to stop. Tomlinson v. City of

Cincinnati, 4 Ohio St.3d 66, 69, 446 N.E.2d 454 (1983); Mincy, supra, ¶12-18;

Cincinnati Ins. Co. v. Watson, 10th Dist. Franklin No. 88AP-898, 1989 Ohio App. LEXIS

723, *2-7. These are relevant based on the time-honored concepts that negligence law

imposes liability only upon one who fails to conduct himself as a reasonable, ordinary,

and prudent person, and does not make one an insurer. See Schutte v. Perkins, 2nd

Dist. Clark No. 2001-CA-46, 2002 Ohio App. LEXIS 12 (holding that drivers are not




                                            10
insurers of their passengers’ safety); Paschal v. Rite Aid Pharmacy, Inc., 18 Ohio St.3d

203, 203, 480 N.E.2d 474 (1985) (finding a shopkeeper is not an insurer of the

customer's safety). Obviously, if the object could not be seen by a reasonably prudent

person, there is no liability. Similarly, if the object could be seen, but not in sufficient

time to allow a reasonably prudent person to avoid it, there is no liability.

       {¶35} Although Tyson saw the wire, he simply did not appreciate that he would

hit it. This case, therefore, hinges on whether a reasonable, prudent person in Tyson’s

situation should have appreciated that the wire posed a risk. If so, liability is imposed.

If not, upon applying usual rules of negligence, there is no liability.

       {¶36} That Tyson saw the power line before his truck hit it is not dispositive as to

whether a reasonably prudent person should have appreciated the danger.                Any

inferences to be drawn from the evidentiary materials must be construed in a light most

favorable to the party opposing the motion. Hannah v. Dayton Power & Light Co., 82

Ohio St.3d 482, 485, 696 N.E.2d 1044 (1988). Because reasonable minds could reach

different conclusions as to whether Tyson should have appreciated the danger, a jury

issue remains.

       {¶37} Accordingly, I dissent.




                                              11
