                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 16a0198n.06

                                         No. 15-3849
                                                                                     FILED
                         UNITED STATES COURT OF APPEALS                         Apr 07, 2016
                              FOR THE SIXTH CIRCUIT                        DEBORAH S. HUNT, Clerk

THOMAS J. WYLIE, SR.,                 )
                                      )
     Plaintiff-Appellant,             )
                                      )
v.                                    )                       ON APPEAL FROM THE
                                      )                       UNITED STATES DISTRICT
FEDEX GROUND PACKAGE SYSTEM, INC., et )                       COURT FOR THE NORTHERN
al,                                   )                       DISTRICT OF OHIO
                                      )
     Defendants-Appellees.            )
                                      )



       Before: BOGGS and KETHLEDGE, Circuit Judges; STAFFORD, District Judge.*

       KETHLEDGE, Circuit Judge. Thomas Wylie, Jr., was killed in a car accident involving

two FedEx tractor-trailers. Wylie Jr. collided with the lead truck, driven by Van Adams, and

spun into the path of the second truck, driven by Jonathan Shoemaker. Wylie Jr. was killed in

the collision with Shoemaker’s truck. Thomas Wylie, Sr., sued the drivers and FedEx, alleging

that both drivers were negligent, that their negligence caused Wylie Jr.’s death, and that FedEx

was responsible for their negligence. The district court granted summary judgment to all three

defendants. Wylie Sr. appeals the judgments for Shoemaker and FedEx. We affirm.




       *
          The Honorable William H. Stafford, Jr., Senior District Judge for the United States
District Court for the Northern District of Florida, sitting by designation.
No. 15-3849
Wylie v. FedEx

                                               I.

       Before sunrise on June 23, 2013, Wylie Jr. was driving a pickup truck on a highway in

Henry County, Ohio.      Adams and Shoemaker were driving tractor-trailers traveling in the

opposite direction. Adams drove the lead truck, with Shoemaker drafting 200 to 300 feet behind

him. The rear wheels on Wylie Jr.’s truck and Adams’s tractor-trailer hooked each other,

spinning Wylie Jr.’s truck into Shoemaker’s path. Shoemaker’s truck then crashed into Wylie

Jr.’s pickup and killed him.

                                               II.

       We review de novo the district court’s grant of summary judgment. Anderson v. City of

Blue Ash, 798 F.3d 338, 350 (6th Cir. 2015).

       Wylie Sr. argues that Shoemaker’s negligence caused the fatal accident. According to

Wylie Sr., Shoemaker followed Adams too closely, which violated Ohio’s “assured clear

distance ahead” statute. The statute forbids driving “at a greater speed than will permit the

[driver] to . . . stop within the assured clear distance ahead.” Ohio Rev. Code § 4511.21(A). A

driver violates § 4511.21(A)—and is therefore negligent as a matter of law—if he collides “with

an object which (1) was ahead of him in his path of travel, (2) was stationary or moving in the

same direction as the driver, (3) did not suddenly appear in the driver's path, and (4) was

reasonably discernible.” Pond v. Leslein, 647 N.E.2d 477, 478 (Ohio 1995).

       In the district court, Wylie Sr. stipulated that he cannot prove the second and third

elements. Specifically, he agreed that “[t]he Wylie vehicle was not stationary nor was it moving

in the same direction as Shoemaker.” R. 67 at ¶10 (joint statement of undisputed facts). He also

agreed that “[t]he Wylie vehicle appeared suddenly in Shoemaker’s lane of travel.” Id. at ¶9.

Wylie Sr. therefore cannot prove that Shoemaker violated § 4511.21(A).


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No. 15-3849
Wylie v. FedEx

       Wylie Sr. contends that we should follow a different formulation of the assured-clear-

distance-ahead rule, one found in Smiddy v. Wedding Party, Inc., 506 N.E.2d 212, 217 (Ohio

1987). In Smiddy, the Ohio Supreme Court held that a driver violates § 4511.21(A) if he collides

with a readily discernible object ahead of him that meets one of three conditions: the object was

stationary, the object was moving in the same direction as the driver, or the object entered the

driver’s lane of travel far enough ahead that the driver could have avoided the crash. Wylie Sr.

asserts that Wylie Jr’s truck entered Shoemaker’s path far enough ahead for Shoemaker to stop,

thus satisfying the third condition. But Wylie Sr. stipulated that “Shoemaker did not have

enough time to avoid the collision with the Wylie vehicle after the Wylie vehicle entered

[Shoemaker’s] lane.” R. 67 at ¶11. Hence Wylie Sr. cannot meet the Smiddy test either.

       As a fallback position, Wylie Sr. contends that a defendant can be found negligent under

§ 4511.21(A) even if he does not satisfy all of the elements of the Pond (or Smiddy) test. In

support, he cites an unpublished decision in which the Ohio Court of Appeals held that a driver

can violate § 4511.21(A) even while obeying the posted speed limit. See State v. Klein, 1998

WL 156868, at *5 (Ohio Ct. App. Mar. 27, 1998). In Klein, a driver who crashed into the back

of a tractor-trailer argued that heavy snowfall constituted a “sudden emergency” that prevented

him from avoiding the collision, and that the tractor-trailer was not “reasonably discernible” in

the snow. Id. at *2. The Klein court simply reaffirmed longstanding Ohio law that a driver must

adjust his speed to account for adverse weather. Id. at *4-5. More to the point, neither Klein nor

any other Ohio case has held that a plaintiff can prove a violation of § 4511.21(A) without

proving the Pond (or Smiddy) elements.

       Wylie Sr. therefore has not presented evidence creating a genuine issue as to whether

Shoemaker was negligent under Ohio law. Nor has Wylie Sr. presented any evidence creating a


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No. 15-3849
Wylie v. FedEx

genuine issue as to causation, which is another element of his claim. See Pond, 647 N.E.2d at

479. Shoemaker is therefore entitled to summary judgment; and since Wylie Sr.’s claim against

FedEx is derivative of his claim against Shoemaker, the district court properly granted summary

judgment to both defendants.

       The district court’s judgment is affirmed.




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