[Cite as Hale v. State Farm Mut.l Auto. Ins. Co., 2018-Ohio-3035.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

ALBERT JOHN HALE                                            JUDGES:
                                                            Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellant                                 Hon. William B. Hoffman, J.
                                                            Hon. Earle E. Wise, Jr., J.
-vs-
                                                            Case No. 2017CA00223
STATE FARM MUTUAL
AUTOMOBILE INSURANCE
COMPANY                                                     OPINION

        Defendant-Appellee




CHARACTER OF PROCEEDING:                               Appeal from the Stark County Court of
                                                       Common Pleas Court, Case No.
                                                       2017CV00097


JUDGMENT:                                              Reversed and Remanded


DATE OF JUDGMENT ENTRY:                                July 30, 2018


APPEARANCES:


For Plaintiff-Appellant                                For Defendant-Appellee

JOHN T. SCANLON                                        MATTHEW P. MULLEN
The Scanlon Group, Co. L.P.A.                          JOHN P. MAXWELL
4040 Embassy Parkway Ste 240                           ALETHA M. CARVER
Akron, Ohio 44333                                      Krugliak, Wilkins, Griffiths &
                                                       Dougherty Co., L.P.A.
                                                       158 North Broadway St.
                                                       New Philadelphia, Ohio 44663
Stark County, Case No. 2017CA00223                                                        2

Hoffman, J.


       {¶1}    Appellant Albert John Hale appeals the summary judgment entered by the

Stark County Common Pleas Court dismissing his breach of contract action against

Appellee State Farm Mutual Automobile Insurance Company.

                           STATEMENT OF THE FACTS AND CASE

       {¶2}    At approximately 8:26 p.m. on April 8, 2016, Appellant was involved in an

automobile accident on Interstate 77. Five vehicles were travelling southbound in the

center of three lanes in the following order: a pickup truck, a Honda Pilot (hereinafter

“Pilot”), a Chevy Traverse (hereinafter “Traverse”), a Mitsubishi Outlander operated by

Appellant, and a Saturn LS (hereinafter “LS”). It was dark outside, and a rain-snow mix

was falling.

       {¶3}    The pickup truck was carrying a barbeque grill in its bed, which fell off the

truck into the center lane of travel. The pickup continued on its way, and the driver was

not identified. The Pilot came to a complete stop in the lane of travel without striking the

grill. The Traverse swerved to the left upon seeing the Pilot stop, but ultimately hit the

Pilot. After the Traverse swerved, Appellant struck the Pilot. The LS then struck Appellant

from behind.

       {¶4}    Appellant has uninsured motorist benefits under a policy with Appellee,

which entitles him to uninsured motorist coverage from the “owner or operator” of:




               A motor vehicle who remains unidentified but independent

       corroborative evidence exists to prove that bodily injury was proximately
Stark County, Case No. 2017CA00223                                                        3


       caused by the intentional or negligent actions in the operation of a motor

       vehicle by the unidentified operator of the motor vehicle.

       State Farm Policy Form 9835B Uninsured Motor Vehicle Coverage, p. 14.



       {¶5}   Appellant filed the instant action against Appellee seeking coverage under

the uninsured motorist portion of his insurance policy with Appellee.1 Appellee moved for

summary judgment. Appellee conceded the negligence of the uninsured motorist, but

argued Appellant was negligent as a matter of law by violating R.C. 4511.21, Ohio’s

assured clear distance statute, and Appellant’s own negligence was the sole proximate

cause of his injuries. Appellee also argued the Pilot driver’s ability to stop, coupled with

Appellant’s negligence, broke the chain of causation from the driver of the pickup.

       {¶6}   The trial court granted the motion for summary judgment, finding as follows:




              Plaintiff has acknowledged seeing the Pilot, the parties do no [sic]

       dispute that the Pilot was continuously traveling in the lane of travel until he

       came to a stop and did not suddenly swerved [sic] into Plaintiff’s lane of

       travel. Plaintiff was required, at all times, to maintain a safe distance from

       the vehicle in front of him. The Court notes that the statute does not state

       a specific distance, as that distance may vary, including on the evening in

       question, when it was dark, rainy, and the roadway was wet.




       1 Count one of Appellant’s complaint alleged the driver of the Saturn LS was
negligent in striking him from the rear. This claim was settled and dismissed, and the
driver of the Saturn is not a party to the instant appeal.
Stark County, Case No. 2017CA00223                                                        4


            While the barbecue grill was undoubtedly the trigger for the chain

     reaction car accident, had Plaintiff maintained that safe distance as required

     by the statute, he would have been able to avoid striking the Pilot. He failed

     to do so.

            Therefore, Plaintiff has an uninsured motorist coverage policy that

     will only cover injuries proximately caused by the intentional or negligent

     actions of an unidentified driver.      The driver of the pickup truck is

     unidentified, but the facts show that his negligence in failing to properly

     secure his barbeque grill did not cause the injuries to Plaintiff. Instead,

     Plaintiff had a legal obligation to maintain a safe enough distance between

     himself and the car(s) in front of him to avoid hitting said cars. No exception

     to this legal duty exists.

     Judgment entry, October 26, 2017, pp.3-4.



     {¶7}   It is from that entry Appellant prosecutes this appeal, assigning as error:




            “THE TRIAL COURT ERRONEOUSLY GRANTED SUMMARY

     JUDGMENT IN FAVOR OF DEFENDANT-APPELLEE STATE FARM

     MUTUAL AUTOMOBILE INSURANCE COMPANY.                          REASONABLE

     MINDS       COULD     COME     TO    DIFFERENT       CONCLUSIONS,        AND

     QUESTIONS OF FACT REMAIN WHETHER THE NEGLIGENCE OF THE

     UNIDENTIFIED/UNINSURED MOTORIST WAS A PROXIMATE CAUSE

     OF PLAINTIFF-APPELLANT ALBERT HALE’S INJURIES.”
Stark County, Case No. 2017CA00223                                                             5




       {¶8}   Summary judgment proceedings present the appellate court with the unique

opportunity of reviewing the evidence in the same manner as the trial court. Smiddy v.

The Wedding Party, Inc., 30 Ohio St.3d 35, 36 (1987). As such, we must refer to Civ. R.

56(C) which provides in pertinent part:




              Summary Judgment shall be rendered forthwith if the pleadings,

       depositions, answers to interrogatories, written admissions, affidavits,

       transcripts of evidence, and written stipulations of fact, if any, timely filed in

       the action, show that there is no genuine issue as to any material fact and

       that the moving party is entitled to judgment as a matter of law. No evidence

       or stipulation may be considered except as stated in this rule. A summary

       judgment shall not be rendered unless it appears from the evidence or

       stipulation, and only from the evidence or stipulation, 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 or stipulation construed most strongly in the

       party’s favor.




       {¶9}   Pursuant to the above rule, a trial court may not enter summary judgment if

it appears a material fact is genuinely disputed. The party moving for summary judgment

bears the initial burden of informing the trial court of the basis for its motion and identifying
Stark County, Case No. 2017CA00223                                                        6


those portions of the record that demonstrate the absence of a genuine issue of material

fact. The moving party may not make a conclusory assertion that the non-moving party

has no evidence to prove its case. The moving party must specifically point to some

evidence which demonstrates that the moving party cannot support its claim. If the

moving party satisfies this requirement, the burden shifts to the non-moving party to set

forth specific facts demonstrating that there is a genuine issue of material fact for trial.

Vahila v. Hall, 77 Ohio St.3d 421, 429, 1997-Ohio-259, citing Dresher v. Burt, 75 Ohio

St.3d 280, 1996-Ohio-107.

       {¶10} Appellant first argues whether he violated R.C. 4511.21 is an issue of

material fact. R.C. 4511.21(A) states:




              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.




       {¶11} A violation of said statute depends on whether there is evidence the driver

collided 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
Stark County, Case No. 2017CA00223                                                          7

path, and (4) was reasonably discernible. See Ziegler v. Wendel Poultry, Inc., 67 Ohio

St.3d 10, 12, 615 N.E.2d 1022 (1993); Junge v. Brothers, 16 Ohio St.3d 1, 3, 475 N.E.2d

477 (1985); Blair v. Goff-Kirby Co., 49 Ohio St.2d 5, 7, 358 N.E.2d 634 (1976). Violation

of the assured clear distance statute constitutes negligence per se. Cox v. Polster, 174

Ohio St. 224, 226, 188 N.E.2d 421, 423 (1963).

       {¶12} Where conflicting evidence is presented as to any of the elements

necessary to establish a violation of R.C. 4511.21(A), a jury question is created. Ziegler,

supra, at 12. “Especially in cases involving the assured-clear-distance statute, which, by

definition, require evaluation of the conduct of the driver in light of the facts surrounding

the collision, the judgment of a jury is more likely to achieve a fair result than is a judge-

made rule of law.” Blair, supra, at 9.

       {¶13} Appellant argues reasonable minds could reach differing conclusions in the

instant case as to whether the Pilot was reasonably discernable.

       {¶14} Whether an object is discernable is not the same as whether it is visible:




              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, 103 N.E.2d 385 (1952), quoting Colonial Trust Co., Admr. v.

       Elmer C. Breuer, Inc., 363 Pa. 101, 69 A.2d 126 (1949). Accordingly, “

       ‘[d]iscernible’ means cognitive awareness while ‘visible’ means merely
Stark County, Case No. 2017CA00223                                                     8

       capable of being seen.” Tritt v. Judd's Moving & Storage, Inc., 62 Ohio

       App.3d 206, 217, 574 N.E.2d 1178 (10th Dist.1990).

       Cleveland Elec. Illum. Co. v. Major Waste Disposal, 11th Dist. Lake No. 2015-L-

       104, 2016-Ohio-7442, 74 N.E.3d 689, ¶ 25.




       {¶15} In cases in which a collision occurred at night or during extraordinary

weather conditions that reduced visibility, the Ohio Supreme Court has held a jury

question existed as to whether the object that the driver hit was reasonably discernible.

Blair, supra (dark, misty, rainy night); Sabo v. Helsel, 4 Ohio St. 3d 70, 446 N.E.2d 457

(1983) (dense fog); Tomlinson v. Cincinnati, 4 Ohio St .3d 66, 446 N.E.2d 454 919 (1983)

(darkness); Junge, supra (darkness, highway unlighted); Sharp v. Norfolk & W. Ry. Co.,

36 Ohio St.3d 172, 522 N.E.2d 528(1988) (darkness); Ziegler, supra (fog).

       {¶16} The Ohio Supreme Court noted in Blair the issue of discernability is often a

jury question:




                 Furthermore, as the policy reasons behind holding drivers negligent

       per se for collisions have become less compelling over the years, virtually

       all other states, whether their assured-clear-distance rules are statutory or

       judge made, have held discernibility to be a jury question.

                 For the foregoing reasons, we hold that whether an object is

       discernible under a given set of circumstances is a question of fact, and,

       when reasonable minds could reach different conclusions from the
Stark County, Case No. 2017CA00223                                                     9


      evidence presented upon the question, a motion for a directed verdict upon

      that basis should be overruled.

      Blair, supra, at 9-10.




      {¶17} It is undisputed the accident in the instant case occurred after dark, with a

rain-snow mixture falling from the sky.      Appellant testified in his deposition he was

following the Traverse approximately four car lengths behind, at a speed of 55 miles per

hour. He testified as follows regarding the accident:




             A. I remember the car in front of me making a bizarre left twist off to

      the left side of the road, distracted me, and I looked up at the vehicle that

      was sitting on the expressway.

             *****

             Q. And as soon as that happened, after that car cleared off to the

      left, you were able to see a car in front of it?

             A. Yes.

             Q. Okay. What was that car doing?

             A. Nothing.

             Q. It was not moving?

             A. No.

             Q. Were the brake lights on?

             A. No.
Stark County, Case No. 2017CA00223                                                  10


               Q. Were there – were there taillights on it?

               A. Taillights.

               Q. So the car – the lights were on?

               A. Yes.

               Q. But you couldn’t see that any brake lights were on?

               A. No brake lights.

               Q. All right. And you specifically recall that there were no brake

     lights?

               A. I know there was [sic] no brake lights.

               Q. Okay. What kind of car was that, if you recall?

               A. It was a Honda Pilot.

               Q. Okay. So when the car that you were following moves over to

     the left, you now see the Honda Pilot sitting in the roadway not moving; is

     that correct?

               A. Yes. When I looked back, I noticed all of this, distracted me,

     startled me, and I looked back and that car was sitting there.

               Q. Okay. And were you able to perceive that it was not moving even

     though it didn’t have any brake lights on?

               A. Yes.

               Q. You could tell it was stopped?

               A. When I got – I was getting closer to it, yes.

               Q. How far away was that Pilot when you first saw it?

               A. I couldn’t tell you.
Stark County, Case No. 2017CA00223                                                       11


              Q. Was it – was it more than four car lengths?

              A. No.

              Q. So it was actually closer at this point than what you had been

        following the other car?

              A. Yes.

              ***

              Q. Did you have time to use your brakes?

              A. I don’t recall.

              ***

              A. When the car in front of me went left, it exposed me to the danger.

              Q. Okay.

              A. I had no time.

              Hale Deposition, pp. 30-34, 68.




        {¶18} In support of the trial court’s decision, Appellee first cites Cox v. Polsten,

174 Ohio St. 224, 226, 188 N.E.2d 421,423 (1963), in which the Ohio Supreme Court

held:




              Where three motor vehicles are proceeding in the same direction in

        the same lane of traffic, the fact that the first car comes to a sudden stop

        causing the second car to swerve out of its lane of traffic does not create a

        sudden emergency as to the third car so as to relieve the driver thereof of
Stark County, Case No. 2017CA00223                                                        12


       from [sic] compliance with the assured-clear-distance statute in relation to

       the stopped first car.




       {¶19} However, the instant case does not involve a defense of sudden

emergency. In Cox, the plaintiff was in the first car which stopped, the second car

swerved, and the third car, driven by the defendant, was unable to stop, striking the

plaintiff’s car. In the instant case, Appellant was the plaintiff, and was in the position of

the defendant in Cox. As the plaintiff in this case, the defense of sudden emergency was

not pertinent to Appellant’s case, and we thus find Cox inapplicable. In Cox, the court did

not discuss whether the first car was discernable, but only whether the trial court erred in

instructing the jury on the defense of sudden emergency caused by the second car

swerving out of the way of the plaintiff.

       {¶20} Appellee argues because Hale observed the Pilot was stopped and was

able to determine the car had on taillights but no brake lights, he has admitted

discernability. Appellee cites several cases in support of its claim summary judgment

was appropriate under this set of facts. However, the cases cited by appellee involve

distinct facts from those at issue in the case sub judice. Treece v. Mullet, 5th Dist. Holmes

No. CA-406, 1990 WL 120758 (August 6, 1990) (driver rounded a bend and observed

stationary vehicle but was unable to stop); Mitchell v. Kuchar, 8th Dist. Cuyahoga No.

85363, 2005-Ohio-3717 (car was directly ahead of plaintiff and he followed it for a minute

before the accident); Ciesielczyk v. Ogg, 5th Dist. Stark No. 2000CA00359, 2001 WL

967896 (August 20, 2001) (plaintiff drove behind defendant for half a mile before

accident).
Stark County, Case No. 2017CA00223                                                       13


       {¶21} We find reasonable minds could reach different conclusions as to whether

the stopped Pilot was reasonably discernable to Appellant. A mixture of rain and snow

was falling, and it was dark outside. The vehicle in front of Hale suddenly swerved left,

creating a distraction. Prior to the Traverse moving out of the way, Appellant could not

see the Pilot. When he was able to see the Pilot, its taillights were visible but it did not

have brake lights on. At some point, Hale testified he was able to determine the Pilot was

stopped, but it is not clear from his testimony at what point he was able to discern the

Pilot was not moving. He testified he had no time. When considered in the light most

favorable to Appellant as is required by Civ. R. 56, from all the circumstances surrounding

the accident, we find reasonable minds could differ as to whether the Pilot was

discernable. Therefore, we find the court erred in finding Appellant was negligent per se

for violating the assured clear distance statute.

       {¶22} Appellant next argues the court erred in granting summary judgment

because even if he was negligent, an issue of comparative negligence was created which

must be determined by a jury. Appellee argues in response Appellant’s own negligence

was the sole proximate cause of his injuries. Appellee argues the Pilot’s ability to come

to a complete stop, followed by Appellant’s negligence in striking the Pilot, constituted an

intervening cause which relieved the driver of the pickup from liability for his negligence.

       {¶23} A defendant may be relieved of liability for his negligent conduct if an

intervening act breaks the causal connection between the defendant's negligence and

the injury. Berdyck v. Shinde, 66 Ohio St.3d 573, 613 N.E.2d 1014 (1993), paragraph six

of the syllabus. A break will occur when another conscious and responsible agency, which

could or should have eliminated the hazard, intervenes between an agency creating a
Stark County, Case No. 2017CA00223                                                            14

hazard and an injury resulting therefrom. Hurt v. Charles J. Rogers Transp. Co., 164 Ohio

St. 323, 130 N.E.2d 824 (1955), paragraph one of the syllabus.

       {¶24} The test for such a break in causation 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 intervenes and

thereby absolves the original negligent actor.” Cascone v. Herb Kay Co., 6 Ohio St.3d

155, 160, 451 N.E.2d 815 (1983). An intervening act is “new” if it came into operation

after the original negligence and could not reasonably have been foreseen. Reed v.

Weber, 83 Ohio App.3d 437, 441, 615 N.E.2d 253 (1992). An intervening act constitutes

an “independent” cause if the intervening act was capable of producing the injury

irrespective of the original negligence, was not set in motion by the original negligence,

and was not simply a condition on or through which the original negligence operated to

produce the injurious result. See Mudrich v. Standard Oil Co., 153 Ohio St. 31, 38, 90

N.E.2d 859 (1950), citing Mouse v. Cent. Savings & Trust Co., 120 Ohio St. 599, 605-

606, 167 N.E. 868 (1929).

       {¶25} Appellee cites to several cases in support of its argument summary

judgment was appropriate on the issue of proximate cause because the ability of the Pilot

to stop, coupled with Appellant’s own negligence, constituted an intervening cause

relieving the pickup driver of liabiliity.   In Mitchell v. Kuchar, supra, Kuchar, who was

intoxicated, fell asleep at the wheel, resulting in his car hitting a concrete barrier, traveling

across the lanes of traffic, and coming to rest in the grass on the side of the road. Rizzo

slowed down to avoid Kuchar’s vehicle, and was rear-ended by Mitchell. The Court of

Appeals for the Eighth District held Mitchell’s failure to maintain an assured clear distance
Stark County, Case No. 2017CA00223                                                        15


broke the chain of causation related to Kuchar’s negligent driving, constituting an

independent, intervening act which absolved Kuchar of liability for the collision between

Mitchell and Rizzo. 2005-Ohio-3717, ¶11. The court noted by maintaining an assured

clear distance, Rizzo was able to stop and avoid impact with Kuchar’s vehicle, and

therefore as a matter of law, Kuchar was not proximately liable for Mitchell’s injuries. Id.

at ¶13.

       {¶26} The Ninth District addressed a similar proximate causation issue in

Sabbaghzadeh v. Shelvey, 9th Dist. Lorain No. 98CA007244, 2000 WL 673322 (June 14,

2000). In that case, a wooden display case fell from the back of a truck driven by Shelvey.

The accident occurred at night. Cioffee was driving a dairy delivery truck behind Shelvey,

and stopped to avoid hitting debris in his lane. After Cioffee had been stopped at least

four to five minutes, he was struck from behind by a vehicle driven by Mofakhami, who

died at the scene. The court found as a matter of law Mofakhami’s failure to maintain

assured clear distance was a new and independent cause of his injury, which was not set

in motion by Shelvey’s misconduct. Id. at *6. He arrived on the scene at least four to five

minutes after the display case fell from Shelvey’s truck, and other traffic had either slowed

or was passing around the debris without incident. Id. Although it may have been

foreseeable Shelvey’s negligence would bring traffic to a halt, it was not reasonably

foreseeable a motorist would proceed more than 2500 feet without making any effort to

avoid a large delivery truck in its path. Id.

       {¶27} Appellee cites extensively in its brief to Didier v. Johns, 114 Ohio App. 3d

746, 684 N.E.2d 337 (2nd Dist. Montgomery 1996). In that case, Didier was operating a

motorcycle, following a bus. Johns was operating a vehicle in the opposite direction, and
Stark County, Case No. 2017CA00223                                                        16


fell asleep at the wheel, crossing the center line. The bus was required to stop quickly,

and Didier hit the bus from behind. The court found comparative negligence did not apply,

as the action of the bus driver in bringing his vehicle to a stop was not negligent, and this

non-negligent act broke the chain of causation between John’s negligence and Didier’s

negligence. Id. at 753, 684 N.E.2d at 341.

       {¶28} However, the Court of Appeals for the Second District subsequently held its

decision in Didier was incorrect:




              Our rationale in Didier was flawed. “A break will occur when there

       intervenes between an agency creating a hazard and an injury resulting

       therefrom another conscious and responsible agency which could or should

       have eliminated the hazard.” Berdyck v. Shinde, at 585, 613 N.E.2d 1014.

       In Didier, the hazard was created when the motorist allowed his vehicle to

       cross into the path of the school bus. If the school bus driver could or should

       have eliminated the hazard, but failed to do so, his intervening negligence

       could relieve the motorist of liability to the motorcyclist for the injuries he

       suffered. But, there was no basis in the record to find that the school bus

       driver was negligent. Indeed, we wrote that “the action of the bus driver in

       bringing his vehicle to a natural stop was not negligent.” Didier, at 753, 684

       N.E.2d 337. It does not follow that a non-negligent intervening act will break

       the chain of causation between a prior negligent act and subsequent injuries

       that proximately result from that act. The Restatement holds that the

       intervening act must be “wrongful.” The non-negligent conduct of an
Stark County, Case No. 2017CA00223                                                     17


     intervening “actor” has no effect on the respective negligences of the

     plaintiff and the defendant or defendants, which must instead be resolved

     on comparative negligence principles. Shinaver v. Szymanski.

              Our rationale in Didier also suffers from another major flaw. We held

     that the plaintiff motorcyclist was not entitled to a comparative negligence

     instruction, rejecting the “seductively appealing, but wholly pernicious, ‘but

     for’ analysis” in Fleming and Baum, regarding the issue of probable cause.

     We wrote: “The legal analysis must focus on the direct per se negligence of

     the violator of the assured clear distance rule, as distinct from a physical

     analysis made pursuant to the ‘but for’ theory.” Id. at 754, 460 N.E.2d 701.

     In other words, the fact that the plaintiff was negligent per se is conclusive

     of the issue of proximate cause. However, that pronouncement we made in

     Didier is the very view that the Supreme Court rejected in Smiddy when it

     wrote:

              “Although we hold that appellee's decedent was negligent per se,

     such holding does not mean that his negligence was the sole proximate

     cause, or even a proximate cause, of the collision that resulted in his death.

     Construing the evidence most favorably toward appellee, we hold that

     reasonable minds could differ as to the proximate cause(s) of the collision.

     Similarly, the issue of comparative negligence is for the jury if it finds that

     Hesketh [a motorist who had stopped and was struck by Smiddy's vehicle]

     was negligent and that the negligence of both Hesketh and Smiddy were

     proximate causes of the accident.” Id., at 40 (internal citations omitted.)
Stark County, Case No. 2017CA00223                                                         18

               We now believe that our holding in Didier was incorrect. There was

       no intervening wrongful force between the prior negligence of the defendant

       motorist whose vehicle crossed the center line of the road and the plaintiff

       motorcyclist's subsequent assured clear distance violation that could or

       should have prevented the injuries the plaintiff motorcyclist suffered when

       he struck the school bus. The plaintiff's assured clear distance violation was

       negligence per se, but its effect on the liability of the other motorist should

       have been determined on the basis of comparative negligence principles,

       and was not a basis to find the motorcyclist's negligence per se was the

       sole proximate cause of the accident. The practical effect of that finding was

       to hold that, as a matter of law, any prior negligent act is too remote to be a

       proximate cause of injuries when any other concurrent negligence occurs.

       That outcome confounds the basic rule that concurrent negligences may

       result in joint liabilities for both tortfeasors when each is a proximate cause

       of injuries. Berdyck v. Shinde. Therefore, our holding in Didier will be limited

       to its facts.

       Crosby v. Radenko, 2nd Dist. Montgomery No. 24343, 2011-Ohio-4662, ¶¶ 51-54.



       {¶29} In Crosby, a tractor-trailer driven by Radenko pulled to a stop in the berm

due to mechanical trouble. He subsequently attempted to reenter the same lane of travel,

when a passenger vehicle came to a stop behind him, followed by a second tractor-trailer

coming to a stop behind the passenger vehicle. Unable to stop, Crosby first veered into

the left lane, lost control of her vehicle, veered back into the right lane, and collided with
Stark County, Case No. 2017CA00223                                                        19


Radenko. The Court of Appeals held reasonable minds could conclude the chain of

events set in motion by Radenko unfolded in rapid succession in a continuous and

unbroken fashion, with a result the causal connection between Radenko’s negligence and

Crosby’s negligence was not broken, and the effect of their concurrent negligence must

be resolved by the jury on comparative negligence principles. Id. at ¶56.

       {¶30} In support of finding its prior decision in Didier to be incorrect, the Crosby

court cited to two similar cases from the Tenth Appellate District. In Baum v. Augenstein,

10 Ohio App. 3d 106, 460 N.E.2d 701 (10th Dist. Franklin 1983), a pickup truck dropped

a cattle feeder on to the roadway. While Baum was able to stop her vehicle, she was

almost immediately struck from behind by Augenstein. The Court of Appeals found

reasonable minds could conclude the negligence of the pickup truck driver and

Augenstein combined to proximately cause Baum’s injuries. Id. at 107, 460 N.E.2d at

703. Reasonable minds could conclude the chain of events set in motion by the pickup

truck driver’s negligence in failing to secure the feeder unfolded in rapid succession in a

continuous and unbroken fashion, with a result the causal connection was not broken. Id.

       {¶31} Similarly, in Grange v. Mut. Cas. Co. v. Fleming, 8 Ohio App. 3d 164, 456

N.E.2d 816 (10th Dist. Franklin 1982), the lead driver stopped suddenly, the middle car

was able to stop, but the third car in the line of vehicles was unable to stop, crashing into

the middle car and pushing it into the lead vehicle. The court held reasonable minds

could find the first driver by stopping his vehicle in a continuous lane of traffic would

anticipate that, although the vehicle immediately behind him would be able to stop, a third

vehicle may not be able to stop. Id. at 167, 456 N..E.2d at 819. The court held reasonable

minds could therefore conclude the third driver’s negligence was set in motion by the first
Stark County, Case No. 2017CA00223                                                          20


driver’s negligence in suddenly stopping in the roadway, and the causal connection was

not broken. Id.

       {¶32} Applying the reasoning of Crosby, Baum, and Grange to the instant case,

we find reasonable minds could differ as to whether the ability of the Pilot to stop, followed

by any potential finding of negligence on the part of Appellant in violating the assured

clear distance statute, broke the chain of causation of the pickup driver’s negligence in

failing to secure the grill. As in the cases cited immediately above, and distinguishable

from Sabbaghzadeh, supra, the chain of events set in motion by the pickup driver’s failure

to secure his load unfolded in rapid succession in a continuous and unbroken fashion.

Reasonable minds could conclude the driver of the pickup would anticipate that, although

a vehicle directly behind him would be able to stop if the grill fell out of the truck, other

vehicles following behind might not be able to see the hazard and stop, particularly as the

accident occurred on an interstate highway with three lanes proceeding in his direction,

after dark, with a rain-snow mixture falling. Reasonable minds could differ as to whether

Appellant’s failure to stop was a new or independent act or cause of his collision with the

Pilot, irrespective of the pickup truck’s negligence in failing to secure the grill. Reasonable

minds could find this rapid succession accident was set in motion by the negligence of

the pickup truck driver resulting in a continuous, unbroken chain of reaction. We therefore

find the court erred in concluding as a matter of law the causal connection was broken by

Appellant’s negligence, and if the jury finds Appellant negligent per se for violating the

assured clear distance statute, the effect of the concurrent negligence of Appellant and

the unidentified driver of the pickup truck must be resolved by the jury on comparative

negligence principles.
Stark County, Case No. 2017CA00223                                              21


      {¶33} The assignment of error is sustained. The summary judgment of the Stark

County Common Pleas Court is reversed, and this case is remanded to that court for

further proceedings according to law and this Opinion.


By: Hoffman, J.

Gwin, P.J. and

Wise, Earle, J. concur
