[Cite as McDougall v. Smith, 191 Ohio App.3d 101, 2010-Ohio-6069.]




                     IN THE COURT OF APPEALS OF OHIO
                         THIRD APPELLATE DISTRICT
                             PAULDING COUNTY




McDOUGALL ET AL.,

        APPELLANTS,                                              CASE NO. 11-10-04

        v.

SMITH,                                                           OPINION

        APPELLEE.




               Appeal from Paulding County Common Pleas Court
                           Trial Court No. CI-09-233

                                    Judgment Affirmed

                        Date of Decision:        December 13, 2010




APPEARANCES:

        John T. Murray and Frederick N. Hadley, for appellants.

        Robert B. Fitzgerald and Angela M. Elliott, for appellee.
Case No. 11-10-04


       WILLAMOWSKI, Presiding Judge.

       {¶ 1} Plaintiffs-appellants Matthew A. McDougall (“McDougall”) and

Benjamin Rager (“Rager”) bring this appeal from the judgment of the Court of

Common Pleas of Paulding County granting summary judgment to defendant-

appellee, William C. Smith (“Smith”).         For the reasons set forth below, the

judgment is affirmed.

       {¶ 2} On July 20, 2007, a vehicle operated by Smith struck a vehicle

operated by Timothy Wells (“T. Wells”). Armelda Wells (“A. Wells”), Robert

Wells (“R. Wells”), and David Brummett were passengers in the vehicle. Due to

their injuries, two ambulances were dispatched. The first ambulance took T.

Wells and Brummett to the hospital.       The second ambulance was staffed by

McDougall, Heidi McDougall (“Heidi”), Kelly Rager (“Kelly”), and driver

Sammy Smith. This ambulance carried A. Wells and R. Wells. While the victims

were being transported to the hospital, a second accident occurred involving the

ambulance and a semitruck. The only survivor was McDougall.

       {¶ 3} On July 16, 2009, McDougall and Rager filed a complaint in their

individual capacities and as administrators of the estates of their wives, Heidi and

Kelly. The complaint alleged that Smith’s negligence in causing the first accident

resulted in the injuries arising from the second accident. Smith filed his answer on

September 14, 2009. An amended answer was filed on February 17, 2010. On



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Case No. 11-10-04


March 22, 2010, Smith filed a motion for summary judgment. McDougall and

Rager filed their response to the motion on April 12, 2010. On May 4, 2010, the

trial court granted the motion for summary judgment and dismissed the complaint.

McDougall and Rager appeal from this judgment and raise the following

assignments of error.

                             First Assignment of Error

             The trial court committed reversible error by holding, as a
       matter of law, that [Smith] did not proximately cause injury.

                           Second Assignment of Error

             The trial court committed reversible error by holding, as a
       matter of law, that [Smith] owed no duty under the common law
       rescue doctrine.


       {¶ 4} When reviewing a motion for summary judgment, courts must

proceed cautiously and award summary judgment only when appropriate. Franks

v. Lima News (1996), 109 Ohio App.3d 408, 672 N.E.2d 245. “Civ.R. 56(C)

provides that before summary judgment may be granted, it must be determined

that (1) no genuine issue as to any material fact remains 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 viewing the

evidence most strongly in favor of the nonmoving party, that conclusion is adverse

to the nonmoving party.” State ex rel. Howard v. Ferreri (1994), 70 Ohio St.3d



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Case No. 11-10-04


587, 589, 639 N.E.2d 1189. When reviewing the judgment of the trial court, an

appellate court reviews the case de novo. Franks.

       {¶ 5} McDougall and Rager allege in the first assignment of error that the

trial court erred in finding that Smith’s actions in causing the first accident were

not the proximate cause of their injuries. “Proximate cause” has been defined as a

happening or event that as a natural or continuing sequence, produces an injury

without which the injury would not have occurred. Murphy v. Carrollton Mfg. Co.

(1991), 61 Ohio St.3d 585, 575 N.E.2d 828.          There may be more than one

contributing proximate cause of an injury. Brinkmoeller v. Wilson (1975), 41

Ohio St.2d 223, 325 N.E.2d 233.

              Whether an intervening act breaks the causal connection
       between negligence and injury depends upon whether that
       intervening cause was reasonably foreseeable by the one who was
       guilty of the negligence. * * * The causal connection of the first act
       of negligence is broken and superseded by the second, only if the
       intervening negligent act is both new and independent. The term
       “independent” means the absence of any connection or relationship
       of cause and effect between the original and subsequent act of
       negligence. The term “new” means that the second act of
       negligence could not reasonably have been foreseen. * * *.

(Emphasis omitted.) R.H. Macy & Co., Inc. v. Otis Elevator Co. (1990), 51 Ohio

St.3d 108, 110-111, 554 N.E.2d 1313. “The test * * * is whether the original and

successive acts may be joined together as a whole, linking each of the actors as to

the liability, or whether there is a new and independent act or cause which




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Case No. 11-10-04


intervenes and thereby absolves the original negligent actor.” Cascone v. Herb

Kay Co. (1983), 6 Ohio St.3d 155, 160, 451 N.E.2d 815.

       {¶ 6} Here, the question is whether the second accident was a reasonably

foreseeable outcome of the first accident or whether it was a new and independent

act. One is permitted to assume that others will follow the law and exercise

ordinary care. Hicks v. Prelipp, 6th Dist. No. H-03-028, 2004-Ohio-3004, ¶ 10,

quoting Swoboda v. Brown (1935), 129 Ohio St. 512, 196 N.E. 274. As a matter

of law, one need not anticipate that another driver will violate the law and that a

collision will occur. Id. Thus, such a collision is not foreseeable. Id. If the

second collision is not a foreseeable consequence of the first accident, then the

causal chain is broken and Smith is not liable for the injuries to McDougall and

Rager. The first assignment of error is overruled.

       {¶ 7} In the second assignment of error, McDougall and Rager allege that

the trial court erred in finding that the rescue doctrine did not apply. Since this

court has determined that Smith’s actions in causing the first accident were not

the proximate cause of the second action, there can be no finding of negligence.

The trial court did not err in granting summary judgment on this basis, and any

other determinations by the trial court are irrelevant. The second assignment of

error concerning whether the rescue doctrine applies is moot and will not be

addressed by this court.



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Case No. 11-10-04


      {¶ 8}   The judgment of the Court of Common Pleas of Paulding County is

affirmed.

                                                          Judgment affirmed.

      ROGERS and PRESTON, JJ., concur.




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