[Cite as Heider v. Siemens, 2011-Ohio-901.]


               IN THE COURT OF APPEALS OF OHIO
                   THIRD APPELLATE DISTRICT
                         ALLEN COUNTY
__________________________________________________________________

CYNTHIA SUE HEIDER, INDIVIDUALLY
AND AS ADMINISTRATOR OF THE                              CASE NO. 1-10-66
ESTATE OF MATTHEW J. HEIDER, ET AL.,

   PLAINTIFFS-APPELLANTS,

  v.

SIEMENS, AG, ET AL.,                                        OPINION

   DEFENDANTS-APPELLEES.

__________________________________________________________________

                  Appeal from Allen County Common Pleas Court
                           Trial Court No. CV2008-0812

                                     Judgment Affirmed

                          Date of Decision: February 28, 2011

__________________________________________________________________


APPEARANCES:

        Marvin A. Robon for Appellant

        Larry E. Yunker II for Appellant

        Brian D. Sullivan for Appellee, U.S. Utility Contractor Company, Inc.

        Brian L. Wildermuth for Appellees, Ottawa Oil Company and
           Ronald E. Funk

        Martin W. Williams for Appellee, Ronald E. Funk
Case No. 1-10-66



PRESTON, J.

       {¶1} Plaintiffs-appellants, Cynthia Sue Heider, individually and as

administrator of the Estate of Matthew J. Heider, and Cynthia Sue Heider, as

parent, natural guardian, and next friend of Rachel E. Heider (“Rachel”), a minor,

(collectively “the estate”) appeal the Allen County Court of Common Pleas’ grant

of summary judgment in favor of defendants-appellees Ottawa Oil Company, Inc.

(“Ottawa Oil”), Ronald Funk (“Funk”), and US Utility Contractor Company, Inc.

(“US Utility”). For the reasons that follow, we affirm.

       {¶2} On November 14, 2006 around 8:30 p.m., Dr. Matthew J. Heider (“Dr.

Heider”) was driving a Chevy Suburban southbound on Eastown Road in

American Township, Allen County, Ohio approaching the intersection of Eastown

and Allentown Roads (State Route 81). (Complaint, Doc. No. 1, ¶24); (Collision

Reconstruction Report, Stechschulte Ex. D). Dr. Heider’s daughter, Rachel, was a

passenger in the vehicle. (Complaint, Doc. No. 1 at ¶5). At the same time, Funk

was operating a Mack tractor-tanker trailer loaded with 8,500 gallons of gasoline

westbound on Allentown Road (State Route 81), approaching the same

intersection. (Id. at ¶25).   The Mack tractor-tanker trailer collided with Dr.

Heider’s Suburban causing the tractor-tanker trailer to roll onto its side, the

gasoline to ignite, and the tanker trailer to explode, with Funk being injured but

escaping shortly prior to the explosion. (Id. at ¶27). As a result of the collision,

Dr. Heider’s Suburban was pushed approximately one hundred (100) feet

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westbound on Allentown Road, causing minor injuries to Rachel. (Id. at ¶¶31, 37).

Dr. Heider died as a result of the crash and subsequent fire. (Id.).

       {¶3} On June 2, 2008, the estate filed a wrongful death action in the Allen

County Court of Common Pleas against Siemens, AG; Siemens Corporation;

Siemens Energy and Automation, Inc.; DGL Consulting Engineers, LLC, d/b/a

DGL Consulting Engineers; US Utility; Allen County, Ohio; American Township,

Ohio; Funk; Ottawa Oil; Acme Leasing Co.; and John Does one, two, three, four,

five, and six alleging negligence in the design, manufacture and/or installation of

the intersection and/or traffic control device (Count One); negligent maintenance

of the intersection and/or traffic light (Count Two); negligence by Funk (Count

Three); negligence and vicarious liability by Ottawa Oil (Count Four); negligence

of Acme Leasing (Count Five); and strict liability against Siemens, DGL

Consulting, US Utility and/or John Doe as manufacturers and/or suppliers of the

traffic control device. (Count Six). (Doc. No. 1).

       {¶4} On June 16, 2008, the estate filed a motion to stay the proceedings

until a related case that the estate had filed in the Ohio Court of Claims, Heider v.

Dept. of Transportation, Case No.: C2008-06521, was fully adjudicated. (Doc.

No. 12). On June 24, 2008, the trial court granted the motion. (Doc. No. 16).

However, on June 25, 2008, Funk filed a memorandum in opposition to the motion

to stay, and on July 3, 2008, the trial court set the matter for hearing upon

reconsideration. (Doc. Nos. 16, 26).


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Case No. 1-10-66


       {¶5} On June 30, 2008, DGL Consulting Engineers and Allen County filed

answers. (Doc. Nos. 19, 21).      On July 1 and 2, 2008, Acme and Siemens,

respectively, filed motions for an extension to move, plead, or otherwise answer.

(Doc. Nos. 22-23). The trial court granted the extensions on July 2-3, 2008. (Doc.

Nos. 24-25).

       {¶6} On July 15, 2008, the trial court held a hearing on the estate’s motion

to stay proceedings. (Doc. No. 35). Following the hearing, the trial court lifted its

previously imposed stay of proceedings effective July 15, 2008 and ordered the

defendants to move or otherwise plead within thirty (30) days. (Id.).

       {¶7} On July 21, 2008, American Township filed its answer. (Doc. No. 36).

On July 25, 2008, defendants Acme Leasing, Ottawa Oil, and Funk filed answers.

(Doc. Nos. 42, 44-45). Funk also filed a counterclaim against the estate for the

injuries he sustained as a result of the accident. (Doc. No. 45). On August 5, 2008,

the estate filed an answer to Funk’s counterclaim. (Doc. No. 50).

       {¶8} On August 4, 2008, Siemens Energy and Automation, Inc. filed its

answer. (Doc. No. 52). On August 14, 2008, Siemens AG and Siemens Corp.

filed an unopposed second motion for extension of time to move, plead, or

otherwise answer, which the trial court granted. (Doc. Nos. 53, 56).

       {¶9} On September 11, 2008, Siemens AG and Siemens Corp. filed

motions to dismiss for lack of personal jurisdiction and want of service of process.

(Doc. Nos. 62, 64).


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Case No. 1-10-66


       {¶10} On September 29, 2008, US Utility filed a motion for leave to file

answer Instanter on the basis that it did not know the trial court’s previously

ordered stay of proceedings had been lifted, which motion the trial court granted.

(Doc. Nos. 66, 68). US Utility filed its answer on September 30, 2008. (Doc. No.

69).

       {¶11} On October 29, 2008, the trial court dismissed Siemens AG and

Siemens Corp. from the case with prejudice. (Doc. No. 76).

       {¶12} On November 13, 2008, the estate filed its first amended complaint

against the same defendants as in its original complaint and, additionally, Eagle

Traffic Systems (a business unit of Siemens Energy and Automation, Inc.),

Baldwin and Sours, Inc., the Shelly Company, Oldcastle, Inc., Eberle Design, Inc.,

and Athens Technical Specialists, Inc. (Doc. No. 83).

       {¶13} On November 13, 2008, the trial court issued a nunc pro tunc order

rescinding its order dismissing Siemens AG and Siemens Corp. with prejudice and

granting the estate through November 18, 2008 to respond to the motions. (Doc.

No. 85).

       {¶14} On November 19, 2008, the estate filed a Civ. R. 41(A) notice of

voluntary dismissal without prejudice of the claims against defendants Siemens

AG, Siemens Corp., DGL Consulting Engineers, American Township, and US

Utility Contractor Company. (Doc. No. 87).




                                        5
Case No. 1-10-66


       {¶15} On November 24, 2008, Funk filed an answer to the first amended

complaint and filed a counterclaim against the estate. (Doc. No. 93). That same

day, Ottawa Oil filed an answer to the amended complaint as well. (Doc. No. 94).

Thereafter, the remaining defendants filed answers to the amended complaint.

(Doc. Nos. 95-96, 98-101, 103). On December 3, 2008, the estate filed its answer

to Funk’s counterclaim. (Doc. No. 97).

       {¶16} A jury trial was scheduled for May 17, 2010 as the matter proceeded

to discovery. (Doc. No. 113).

       {¶17} On January 21, 2009, Acme Leasing filed a motion for summary

judgment. (Doc. No. 112). On February 17, 2009, the estate filed a motion for

extension of six (6) months to file its memorandum in opposition, which the trial

court partially granted giving the estate until April 17, 2009 to respond. (Doc. Nos.

124, 133). That same day, the estate filed a Civ.R 41(A) dismissal of its claims

against Eagle Traffic Control and Oldcastle, Inc. without prejudice. (Doc. No.

125-26).

       {¶18} On April 10th, July 20th, and November 12th, of 2009, respectively,

the estate filed Civ.R. 41(A) dismissals of its claims against Acme Leasing Co.,

Athens Technical Specialists, Inc., and Eberle Design, Inc. without prejudice.

(Doc. Nos. 140, 194, 235). On July 21, 2009, the estate filed a Civ.R. 41(A)

dismissal of count two and count six of its amended complaint against the Shelly

Company. (Doc. No. 196).


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Case No. 1-10-66


       {¶19} On November 18, 2009, the estate re-filed its civil complaint against

US Utility in the Wood County Court of Common Pleas asserting two causes of

action. In its first cause of action, the estate alleged that US Utility was negligent

in programing, downloading software, and/or installing the traffic control device.

(Wood County Complaint). In its second cause of action, the estate alleged that

US Utility breached ODOT regulations and standards when it installed the traffic

signal. (Id.). On December 2, 2009, US Utility filed a motion to dismiss or, in the

alternative, to transfer venue to Allen County. On January 27, 2010, the Wood

County Court of Common Pleas granted the motion to transfer the case to Allen

County.   On March 9, 2010, the Allen County Court of Common Pleas ordered

that the case be consolidated with the case before it, Heider v. Siemens, AG, et al.,

Case No. CV 2008-0812.

       {¶20} On December 18, 2009, Allen County filed a motion for summary

judgment. (Doc. No. 270). On January 4, 2010, the estate filed a motion for an

extension to respond to the motion for summary judgment, which the trial court

granted. (Doc. Nos. 277, 279). On January 14, 2010, Baldwin and Sours, Inc.

filed a motion for summary judgment. (Doc. No. 284). On January 15, 2010,

Ottawa Oil and Funk filed a motion for summary judgment. (Doc. No. 285).

       {¶21} On February 22, 2010, the Estate filed a Civ.R. 41(A) dismissal of its

claims against Allen County without prejudice. (Doc. No. 315). On February 23,

2010, the estate filed its memorandum in opposition to Ottawa Oil and Funk’s


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Case No. 1-10-66


motion for summary judgment. (Doc. No. 317). On March 5, 2010, Ottawa Oil

and Funk filed its reply in support of the motion for summary judgment. (Doc. No.

319).

        {¶22} On March 4, 2010, Baldwin and Sours, Inc. filed a request for

submission of its summary judgment motion. (Doc. No. 318). On March 8, 2010,

the estate filed a Civ.R. 41(A) dismissal of its claims against Baldwin and Sours,

Inc. without prejudice. (Doc. No. 320).

        {¶23} On March 15, 2010, US Utility filed a motion for summary

judgment. (Doc. No. 325). On March 25, 2010, the estate filed a Civ.R. 41(A)

notice of dismissal of its claims against US Utility related to programing of the

signal box and/or controller, downloading software into the controller,

programming the controller, and/or negligence associated with any of these

actions (Count One). (Doc. No. 329). On March 29, 2010, the estate filed its

memorandum in opposition to US Utility’s motion for summary judgment on the

remaining claims. (Doc. No. 330).

        {¶24} On March 30, 2010, the trial court granted Ottawa Oil and Funk’s

motion for summary judgment. (Doc. No. 331). The trial court also ruled in favor

of Funk on his counterclaim for damages; however, the trial court never

determined the amount of Funk’s damages. (Id.). On April 22, 2010, the estate

filed a notice of appeal from the trial court’s grant of summary judgment in favor

of Ottawa Oil and Funk. (Doc. No. 337). This case was assigned appellate case


                                          8
Case No. 1-10-66


no. 1-10-30 but was ultimately dismissed for lack of a final appealable order on

May 21, 2010. (Doc. No. 348).

        {¶25} On May 5, 2010, the trial court granted US Utility’s motion for

summary judgment. (Doc. No. 344). On May 13, 2010, the estate filed a notice of

appeal. (Doc. No. 345). This case was assigned appellate case no. 1-10-37 but

was also dismissed for lack of a final appealable order on June 3, 2010. (Doc. No.

350).

        {¶26} On September 7, 2010, the trial court held a hearing to determine the

amount of Funk’s damages for the injuries he sustained as a result of the accident.

(Doc. No. 360). After hearing the evidence, the trial court granted judgment in

favor of Funk in the amount of $122,301.52. (Id.). On September 16, 2010, the

trial court stayed execution of the judgment pending appeal. (Doc. No. 361).

        {¶27} On October 4, 2010, the estate filed its notice of appeal. (Doc. No.

362). The estate now appeals raising three assignments of error.1 For clarity of

analysis, we elect to combine the estate’s first and second assignments of error for

our review.

                             ASSIGNMENT OF ERROR NO. I

        WHETHER THE TRIAL COURT ERRED WHEN EVIDENCE
        OF A DEFECTIVE TRAFFIC SIGNAL LIGHT AND
        EVIDENCE OF CAUSE OF DEFECT WAS TAKEN FROM
        THE TRIER OF FACT.

1
  The Estate raises three “Issues for Review” on appeal. Although appellants were required to set forth
“Assignments of Error” by App.R. 16(A)(3) and this Court has discretion to disregard appellants’
arguments under App.R. 12(A)(2), we will, in the interests of justice, analyze the three “Issues for Review”
as assignments of error.

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Case No. 1-10-66



                       ASSIGNMENT OF ERROR NO. II

       WHETHER THE TRIAL COURT ERRED WHEN IT
       IGNORED THE EVIDENCE THAT WAS PRESENTED
       SHOWING THAT TRUCK DRIVER FUNK BREACHED HIS
       DUTY OWED TO DR. HEIDER WHEN FUNK FAILED TO
       EXERCISE ORDINARY CARE AT THE INTERSECTION.

       {¶28} In its first assignment of error, the estate argues that circumstantial

evidence of the traffic light’s malfunctions in the weeks and months leading up to

the accident creates a question of fact as to whether the traffic light malfunctioned

on the date of the accident. In addition, the estate argues that there is a question of

fact concerning whether the improper grounding of the traffic signal box could

have caused the types of signal problems that were reported.

       {¶29} In its second assignment of error, the estate argues that there is a

question of fact as to whether the truck driver, Funk, breached his duty of ordinary

care to yield to Dr. Heider who may have been clearing the intersection as Funk

was entering the intersection. The estate further argues that there is a disputed

question of fact concerning whether or not Dr. Heider entered the intersection on a

red light.

       {¶30} This Court reviews a grant or denial of summary judgment pursuant

to Civ.R. 56(C) de novo. Wampler v. Higgins (2001), 93 Ohio St.3d 111, 127, 752

N.E.2d 962, citing Doe v. Shaffer (2000), 90 Ohio St.3d 388, 390, 738 N.E.2d

1243, citing Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105, 671

N.E.2d 241. To prevail under Civ.R. 56(C), a party must show: (1) there are no

                                          10
Case No. 1-10-66


genuine issues of material fact; (2) it appears from the evidence that reasonable

minds can reach but one conclusion when viewing evidence in the nonmoving

party’s favor, and that conclusion is adverse to the nonmoving party; and (3) the

moving party is entitled to judgment as a matter of law. Civ.R. 56(C); Shaffer, 90

Ohio St.3d at 390; Grafton, 77 Ohio St.3d at 105.

       {¶31} “‘To maintain a wrongful death action on a theory of negligence, a

plaintiff must show (1) the existence of a duty owing to plaintiff’s decedent, (2) a

breach of that duty, and (3) proximate causation between the breach of duty and

the death.’” Estate of Ridley v. Hamilton Cty. Bd. of Mental Retardation &

Developmental Disabilities, 102 Ohio St.3d 230, 2004-Ohio-2629, 809 N.E.2d 2,

¶14, quoting Littleton v. Good Samaritan Hosp. & Health Ctr. (1988), 39 Ohio

St.3d 86, 92, 529 N.E.2d 449.

       {¶32} The estate first argues that questions of fact exist concerning whether

the traffic light malfunctioned and whether Dr. Heider ran the red light. We

disagree.   Although several individuals came forward after the accident with

accounts of how the traffic light at the intersection allegedly malfunctioned, none

of these individuals actually witnessed the accident. (Defendants’ Funk and

Ottawa Oil MSJ, Doc. No. 285, Ex. D). Additionally, every available accident

witness testified that Dr. Heider entered the intersection on a red light.

       {¶33} Ronald Funk testified that, around 8:30 p.m. on November 14, 2006,

he was operating a tractor tanker-trailer around forty to forty-five (40-45) miles


                                          11
Case No. 1-10-66


per hour westbound on Allentown Road when Dr. Heider, traveling southbound on

Eastown Road, ran a red light causing their vehicles to collide. (Funk Depo. at 17,

140, 153). Funk testified that it was a clear night on November 14, 2006. (Id. at

151). According to Funk, the traffic light controlling his westbound lane of travel

was green when he was about one-half (1/2) of a mile before the intersection on

Allentown Road. (Id. at 64).      Funk testified that the traffic light controlling

westbound traffic on Allentown Road was continuously green, and the light

controlling southbound traffic on Eastown Road was continuously red prior to the

accident. (Id. at 61, 63, 146, 152, 162). Funk testified that he engaged his brakes

as soon as he realized that Dr. Heider was going to run the red light, but that he

ended up squarely hitting Dr. Heider’s vehicle, in the intersection. (Id. at 72, 75).

Funk testified repeatedly that Dr. Heider ran the red light causing the accident. (Id.

at 17, 55, 61, 72, 91). Funk also testified that he performed a pre-trip inspection of

his tractor tanker-trailer, and he did not discover any problems with the brakes.

(Id. at 134). Funk further testified that he did not lose control of his vehicle until

impact. (Id. at 103). Funk, who traveled through this intersection weekly, also

testified that he never witnessed the traffic light malfunction, and that the traffic

light appeared to be operating properly the night of the accident. (Id. at 139, 147,

149).

        {¶34} Bryan McClure testified that he was traveling forty-five to fifty (45-

50) miles per hour southbound on Eastown Road approximately one-tenth (1/10)


                                         12
Case No. 1-10-66


of a mile behind Dr. Heider’s vehicle the night of the accident. (McClure Depo. at

13, 19, 29). McClure testified that Dr. Heider’s vehicle was the only vehicle in

front of him that night, and that he saw at least one vehicle heading northbound on

Eastown Road that night. (Id. at 32). McClure testified that the light controlling

southbound Eastown Road traffic changed from green to yellow when Dr. Heider

was on Eastown Road where the road widens for a turn lane past Musser Drive.

(Id. at 22-24).   McClure testified that he began to decelerate when the light

changed to yellow, but that Dr. Heider’s vehicle continued at the same speed. (Id.

at 20). McClure testified that Dr. Heider’s vehicle was before the stop bar when

the light changed from yellow to red, and that Dr. Heider “flat out ran * * * a red

light and got hit.” (Id. at 36, 47). McClure testified that the light controlling the

tractor trailer-tanker’s lane of travel was green when the accident occurred. (Id. at

87). McClure testified that: the light did not abruptly change colors nor was it

flashing green for both Eastown and Allentown Roads; there was plenty of time to

stop for the red light; and he could have stopped for the red light even if he was in

front of Dr. Heider’s vehicle. (Id. at 29-30, 78, 85). Dr. Heider’s vehicle never

braked or slowed down prior to the accident, according to McClure. (Id. at 63).

McClure testified that the tractor tanker-trailer was traveling around thirty-five to

forty (35-40) miles per hour through the intersection, even though the tractor

tanker-trailer driver hit his brakes prior to the accident. (Id. at 35, 40-41).

McClure denied consuming any alcohol the night of the accident, and testified that


                                         13
Case No. 1-10-66


his testimony concerning the accident has consistently been that Dr. Heider ran the

red light. (Id. at 94, 98).

       {¶35} Brittney Gordon testified that she was traveling northbound on

Eastown Road the night of the accident, and that the light controlling her lane of

traffic was red as she approached the intersection. (Brittney Gordon Depo. At 18,

35). She testified that no other cars were in front of her when she stopped for the

red light. (Id. at 16). She further testified that she saw the tractor tanker-trailer

come through the intersection traveling west toward Allentown while the light for

northbound traffic on Eastown Road was still red. (Id. at 20). Concerning the

accident, Brittney testified that she heard squealing tires, a loud hit, saw an

explosion, and heard people screaming. (Id. at 28, 43). She further testified that

the light controlling eastbound Allentown Road traffic was green at the time of the

accident, and the traffic light appeared to be functioning correctly. (Id. at 32, 73).

       {¶36} Bethany Gordon, no relation to Brittney Gordon, testified that she

was traveling westbound on Allentown Road behind the tractor tanker-trailer

about two or three car lengths on the night of the accident. (Bethany Gordon Depo.

at 11, 14-15, 43). The tractor tanker-trailer slowed down and moved into the

turning lane as it approached the intersection, according to Bethany. (Id. at 16-17).

Bethany testified that the light for westbound Allentown Road traffic was green

and never changed. (Id. at 16). She also testified that cars were stopped for both

northbound and southbound Eastown Road lanes of travel, and cars were stopped


                                          14
Case No. 1-10-66


for the eastbound Allentown Road lanes of travel to allow the tractor tanker-trailer

to turn onto Eastown Road. (Id. at 19-22). Bethany later testified that it was

possible that the tractor tanker-trailer was not turning left onto Eastown Road but

attempting to avoid the accident. (Id. at 40). Bethany testified that the traffic light

appeared to be functioning normally, and she has travelled through the intersection

many times and has never seen the light malfunction. (Id. at 43, 45, 46-48).

Bethany further testified that the traffic light controlling westbound Allentown

Road traffic was green from shortly after she passed the Tom Ahl car dealership

on Allentown Road and was never red prior to the accident. (Id. at 57, 68).

       {¶37} Katrina “Chris” Estes testified that she was traveling westbound on

Allentown Road the night of the accident about three or four car lengths ahead of

the tractor tanker-trailer. (Estes Depo. at 11, 18). Estes testified that she was

slowing down for the light when it turned green, but that she cleared the

intersection on a green light going forty to forty-five (40-45) miles per hour. (Id. at

18-21). Estes testified that, after she cleared the intersection, she saw flames in

her rearview mirror and stopped her car to see the accident. (Id. at 21-22). Estes

testified that the light changed from red to green normally, and that she passes

through this intersection five to ten (5-10) times per week and has never noticed

any light malfunctions. (Id. at 34-35, 56).

       {¶38} The testimony of alleged prior light malfunctions offered by the

estate is irrelevant for purposes of showing a traffic light malfunction on the night


                                          15
Case No. 1-10-66


of the accident. See Pottorf v. Bray, 3d Dist. No. 17-03-09, 2003-Ohio-4255, ¶4

(upholding trial court’s decision to exclude as irrelevant testimony concerning

observations of a traffic signal’s timing sequence on days other than the day of the

accident). Krause v. Spartan Stores, Inc., 158 Ohio App.3d 304, 2004-Ohio-4365,

815 N.E.2d 696, ¶34 (evidence of prior parking light outages irrelevant to show

parking lot lighting was deficient on the night of the criminal activity); Moore v.

Habegger (Feb 16, 2001), 6th Dist. No. L-00-1248, at *4 (evidence of prior

parking lot light malfunctions was irrelevant as it related to the night of the

criminal activity).   This is especially true here where all the direct evidence

demonstrates that the traffic light was functioning correctly on the night of the

accident. In fact, the record demonstrates that the traffic signal passed all three

hundred and forty-eight (348) systems tests both prior to the accident (March 15,

2005 and March 9, 2006) and two (2) days after the accident (Nov. 16, 2006).

(Stechschulte Depo. at 74-75); (Collision Reconstruction Report, Stechschulte Ex.

D); (Stump Depo. at 43, 50, 54, 184); (Sybert Depo. at 46, 50-51, 61). These

systems tests included tests on the conflict monitor. (Stechschulte Ex. D). The

conflict monitor causes the traffic lights to flash red for opposite directions of

traffic if the traffic signals mistakenly display green lights for opposite directions

of traffic (conflicting green lights) or if the traffic signal(s) mistakenly bypasses a

yellow light (green to red light) in its sequence. (Sybert Depo. at 50-51). Deputy

Stechschulte also concluded that the traffic control device was operating properly


                                          16
Case No. 1-10-66


on the night of the accident, and that there was no evidence of a malfunction.

(Stechschulte Depo. at 74-76).

       {¶39} After reviewing the record herein, we cannot conclude that a material

issue of fact exists with regard to whether or not the traffic signal malfunctioned or

whether or not Dr. Heider ran the red light on the night of the accident.

       {¶40} The estate next argues that a material issue of fact exists concerning

whether or not unsatisfactory grounding of the traffic signal could have caused the

traffic signal to malfunction on the night of the accident. This argument lacks

merit for several reasons. As we have already noted, the record is devoid of any

evidence of a traffic signal malfunction.       Aside from that, the record lacks

evidence that the traffic signal was improperly grounded. The estate points to an

ODOT report noting that the grounding of the traffic signal was “unsatisfactory.”

However, Chris Holmes, an ODOT signal electrician, testified that the report’s

notation of “unsatisfactory” means that the ground was not tested. (Holmes Depo.

at 11-12, 65-66). Holmes further explained that the contractor who installs the

signal cabinet tests for proper grounding of the cabinet. (Id. at 68). John Patrick,

ODOT’s project manager for the intersection, testified that he was present when

US Utility tested the signal cabinet’s grounding, and the signal cabinet passed the

grounding test. (Patrick Depo. at 112-13).       Even the estate’s expert witness,

Vernon Tekell, admitted that the ODOT report’s conclusion of an “unsatisfactory”

ground was contradictory, because the report also noted a ground measurement of


                                         17
Case No. 1-10-66


zero OHMs, which would have been a perfect ground. (Tekell Depo. at 129-31).

Furthermore, even assuming that the signal was improperly grounded, Tekell

could not testify that the unsatisfactory grounding caused the accident but only

that unsatisfactory grounding could cause intermittent problems, such as flickering

of the signal light. (Tekell Depo. at 93, 190). Notably, Tekell admitted that the

conflict monitor would still work properly despite unsatisfactory grounding, and

that he was not testifying that there were conflicting green lights in this case. (Id.

at 94, 170).

       {¶41} Under these circumstances, we cannot conclude that a material issue

of fact remains as to whether the traffic signal cabinet was improperly grounded

and, more importantly, whether the improper grounding caused the accident.

       {¶42} The estate next argues that a material issue of fact exists as to

whether Funk violated a duty of ordinary care to yield to Dr. Heider who may have

been lawfully in the intersection at the time of the accident. Specifically, the

estate argues that McClure testified that Funk timed the red light so he could

maintain speed and entered the intersection just as the light turned green. This

argument lacks merit as well. As an initial matter, the estate’s assumption that Dr.

Heider may have entered the intersection lawfully is not supported by the record.

Every available eyewitness testified that Dr. Heider entered the intersection on a

red light, so he was not lawfully in the intersection at the time of the accident. R.C.

4511.13(C)(1). Furthermore, the estate mischaracterizes McClure’s testimony.


                                          18
Case No. 1-10-66


McClure did not testify that Funk was timing the red light only that Funk “could

have been,” because he (McClure) would have been timing the light under the

circumstances. (McClure Depo. at 85-86). Additionally, the estate’s assumption

that Funk was entering the intersection just as his light turned green is not

supported by the evidence. Estes, not Funk, was the first person that entered the

intersection after the light turned green. (Estes Depo. at 11). Estes testified that

she was three to four (3-4) car lengths ahead of Funk and passed through the

intersection going forty to forty-five (40-45) miles per hour. (Estes Depo. at 18-

21). Funk estimated that the light was green while he was still one-half mile (1/2

mi.) east of the intersection. (Funk Depo. at 64). Therefore, we find no material

issue of fact remaining on this issue.

       {¶43} Finally, the estate argues that, assuming the traffic light

malfunctioned, Funk owed Dr. Heider a duty of ordinary care, citing Welch v.

Canton City Lines (1943), 142 Ohio St. 166, 50 N.E.2d 343. This argument also

lacks merit. The facts of this case are distinguishable from Welch, supra. The

traffic light in Welch was working for one direction of travel but not working at all

for the other direction of travel. 142 Ohio St. at 168. As a result, one motorist

entered the intersection on a green light, while the other motorist entered the

intersection without any light being illuminated. Id. Under these facts, the Court

concluded that each vehicle was lawfully in the intersection; and therefore, each

had equal rights, and the driver of each was bound to exercise ordinary care. Id. at


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171. The traffic light in this case, however, was working for both directions of

traffic, and, furthermore, the record indicates that the light was functioning

properly at the time of the accident. As such, Welch is inapplicable. Aside from

that, the record contains evidence demonstrating that Funk exercised reasonable

care to avoid the accident by taking evasive action in the form of hard braking as

soon as he realized that Dr. Heider was not stopping for the red light. (Funk Depo.

at 72); (Stechschulte Depo. at 40-41, 44); (McClure Depo. at 35). (Bethany

Gordon Depo. at 17). Therefore, we find no issues of material fact remain on this

issue either.

       {¶44} For all these reasons, the estate’s first and second assignments of

error are overruled.

                       ASSIGNMENT OF ERROR NO. III

       WHETHER THE TRIAL COURT ERRED AS A MATTER OF
       LAW IN HOLDING THAT DEFENDANTS RONALD FUNK
       AND OTTAWA OIL WERE ONLY SUSCEPTIBLE OF
       NEGLIGENT MAINTENANCE IF DEFENDANTS KNEW OR
       HAD REASON TO KNOW OF THE UNDERLYING DEFECT
       IN THE TRACTOR TANKER TRUCK.

       {¶45} In its third and final assignment of error, the estate argues that the

trial court erred by relying upon Bloomer v. Van Kow Enterprises (May 5, 1994),

8th Dist. No. 64970 to conclude that its negligent maintenance claim failed as a

matter of law because Bloomer was a products liability case. The estate further

argues that evidence of defective maintenance goes to Funk’s ability to control the

vehicle upon the roadway as required under R.C. 4511.20.2. The estate finally

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argues that defendants Funk and Ottawa Oil may be negligent per se under R.C.

4513.20(A)(9)2 for failing to adjust the brakes so as to operate as equally as

practicable with respect to the wheels on the opposite sides of the vehicle.

        {¶46} The estate’s arguments lack merit. As an initial matter, the estate

never raised the defendants’ failure to comply with R.C. 4511.20.2 or

4513.20(A)(9)3 in their response to defendants’ motion for summary judgment.

(Doc. No. 317). As such, the estate cannot raise the issue for the first time on

appeal. See Hood v. Rose, 153 Ohio App.3d 199, 2003-Ohio-3268, 792 N.E.2d

736, ¶10.

        {¶47} Furthermore, the trial court’s reliance upon Bloomer, supra, was not

erroneous as the estate argues. Bloomer involved multiple claims against multiple

defendants arising from an accident where a Van Kow employee was injured when

the truck he was servicing rolled off of the lift ramps dragging him one hundred

(100) feet. 8th Dist. No. 64790, at *1. Although the plaintiff did assert product

liability claims against the defendants, he also asserted a claim of negligent

maintenance against Jartran Enterprises, the owner of the truck, for failing to

maintain the truck’s emergency brake system. Id. The Court of Appeals found

that plaintiff’s negligent maintenance claim failed, however, because “there [was]

no evidence that Jartran deviated from the regular maintenance schedules for the

vehicle or that Jartran knew of any facts which would make it reasonable to

2
   R.C. 4513.20(A)(10), not R.C. 4513.20(A)(9) is the applicable section governing the equal braking
requirement.
3
  Id.

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specifically check the emergency brake system when not otherwise instructed to

do so by regular maintenance recommendations.” Id. at *3. Like the Court in

Bloomer, the trial court here determined that the estate’s negligent maintenance

claim failed because there was no question as to whether the defendants were

aware or should have been aware of the alleged brake defects. (Mar. 20, 2010 JE,

Doc. No. 331). Therefore, the trial court’s reliance upon Bloomer in this case was

not erroneous as the estate argues.

       {¶48} The estate’s third assignment of error is, therefore, overruled.

       {¶49} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                                Judgment Affirmed

ROGERS, P.J., and SHAW, J., concur.

/jnc




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