[Cite as Penrod v. Mineral Trucking, 2015-Ohio-3493.]


                                      COURT OF APPEALS
                                 TUSCARAWAS COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT

SHANNON PENROD                                             JUDGES:
                                                           Hon. William B. Hoffman, P.J.
        Plaintiff-Appellant                                Hon. Sheila G. Farmer, J.
                                                           Hon. John W. Wise, J.
-vs-
                                                           Case No. 2014 AP 10 0044
MINERAL TRUCKING, ET AL.

        Defendants-Appellees                               OPINION




CHARACTER OF PROCEEDING:                                Appeal from the Tuscarawas County Court
                                                        of Common Pleas, Case No. 2013 CT 12
                                                        0898


JUDGMENT:                                               Affirmed


DATE OF JUDGMENT ENTRY:                                 August 25, 2015


APPEARANCES:


For Defendants-Appellees                                For Plaintiff-Appellant


MARK F. FISCHER                                         STEVEN J. BRIAN
JAMES A. DESMITH                                        ABIGAIL I. MARCHISIO
Fischer, Evans & Robbins, Ltd.                          81 Maplecrest Street SW
3521 Whipple Avenue NW                                  North Canton, Ohio 44720
Canton, Ohio 44718
Tuscarawas County, Case No. 2014 AP 10 0044                                              2

Hoffman, P.J.


      {¶1}    Plaintiff-appellant Shannon Penrod appeals the September 23, 2014

Judgment Entry entered by the Tuscarawas County Court of Common Pleas granting

summary judgment in favor of Defendants-appellees Mineral Trucking, Inc. and Steven

S. Ramsier.

                        STATEMENT OF THE FACTS AND THE CASE

      {¶2}    On February 10, 2010, Appellant Shannon Penrod was operating her

vehicle on County Highway 21, in York Township, Tuscarawas County, Ohio. County

Highway 21 is a two-lane roadway with one lane northbound and one lane southbound.

At the time of the incident, a snow storm caused the road conditions to be icy. The wind

was blowing and it was snowing.

      {¶3}    Appellant alleges a deer ran into the roadway hitting her car, causing a flat

tire. Appellant then pulled her car to the side of the road. The incident occurred at

approximately 6:30 a.m., and was dark outside.

      {¶4}    Appellant recalls exiting her vehicle upon seeing headlights from an

oncoming vehicle. According to Appellant, she was holding her cell phone and waiving

her arms for the oncoming vehicle to stop and help her. Appellant avers she remained

near her car on the side of the road.       Appellant recalls nothing further about the

accident, other than waking up in the hospital three days later.

      {¶5}    On the date of the accident, Appellee Steven Ramsier was hauling a full

load of coal on County Road 21. Ramsier was traveling between 30 and 35 miles per

hour. The speed limit on the roadway was 55 miles per hour. Ramsier crested a hill

and noticed headlights facing him on the opposite side of the road. Ramsier testified he
Tuscarawas County, Case No. 2014 AP 10 0044                                              3


then noticed Appellant in the middle of the roadway, coming towards his truck. Ramsier

did not see Appellant until she appeared from a grove of trees waiving her arms about

ten to fifteen yards in front of his truck.

       {¶6}    Ramsier applied his brakes and noticed the trailer began to swing around

the cab due to the slippery conditions. In order to straighten the trailer, Ramsier let off

the brakes. Ramsier avers Appellant did not move from the middle of the road and she

was too close for him to stop, so he tried to pass around her. Ramsier observed in his

side mirror the trailer pass Appellant at which time Appellant spun around and fell to the

ground.

       {¶7}    On December 16, 2013, Appellant filed a complaint for personal injuries

against Appellees.1 Appellees filed an answer to the complaint. On January 15, 2014,

State Farm Mutual Automobile Insurance Company filed a Motion to Intervene. The trial

court granted the motion.         With leave of Court, State Farm filed an Intervening

Complaint against Appellees alleging an interest in the action as the Insurrer of

Appellant. Appellant alleges she was struck and injured as a direct and proximate result

of Ramsier's negligence in that he was traveling at an unsafe speed for the conditions,

failed to keep a proper lookout, failed to maintain an assured clear distance, and failed

to yield the right of way to a pedestrian. Appellant further claims Ramsier was operating

within the course and scope of his employment for Appellee Mineral Trucking, Inc.

       {¶8}    On August 20, 2014, Appellees Mineral Trucking, Inc. and Steven S.

Ramsier filed a motion for summary judgment.

1
  Appellant voluntarily dismissed a previously filed complaint on December 20, 2012.
State Farm Automobile Insurance Company voluntarily dismissed a previously filed
complaint on December 19, 2012. The trial court entered a Judgment Entry confirming
the dismissal without prejudice of all claims on December 26, 2012.
Tuscarawas County, Case No. 2014 AP 10 0044                                       4


      {¶9}   On September 5, 2014, Appellant filed a memorandum in opposition to the

motion for summary judgment. On September 10, 2014, State Farm filed a brief in

opposition to the motion for summary judgment.

      {¶10} On September 17, 2014, Appellees filed a reply brief in support of their

motion for summary judgment.

      {¶11} Via Judgment Entry of September 23, 2014, the trial court granted

summary judgment in favor of Appellees Steven Ramsier and Mineral Trucking, Inc. and

dismissed the complaints filed by Appellant and State Farm.

      {¶12} Appellant Shannon Penrod appeals, assigning as error:

      {¶13} "I. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT

IN FAVOR OF APPELLEE. (JUDGMENT ENTRY ATTACHED HERETO AS EXHIBIT

A, PURSUANT TO LOCAL RULE 9(A)(1)(A)).                  SUMMARY JUDGMENT IS

APPROPRIATE ONLY WHERE NO GENUINE ISSUES OF MATERIAL FACT EXIST

SUCH THAT REASONABLE MINDS COULD COME TO BUT ONE CONCLUSION. IN

THE INSTANT ACTION, GENUINE ISSUES OF MATERIAL FACT EXIST THAT

WARRANT TRIAL BY JURY AS REASONABLE MINDS MAY REACH ALTERNATE

CONCLUSIONS."

      {¶14} 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. (1987), 30 Ohio St.3d 35, 36, 506 N.E.2d 212. As

such, this Court reviews an award of summary judgment de novo. Grafton v. Ohio

Edison Co. (1996), 77 Ohio St.3d 102, 105, 671 N.E.2d 241.
Tuscarawas County, Case No. 2014 AP 10 0044                                             5


      {¶15} Civ.R. 56 provides summary judgment may be granted only after the trial

court determines: 1) no genuine issues as to any material fact remain 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 such

evidence most strongly in favor of the party against whom the motion for summary

judgment is made, that conclusion is adverse to that party. Temple v. Wean United, Inc.

(1977), 50 Ohio St.2d 317, 364 N.E.2d 267.

      {¶16} It is well established the party seeking summary judgment bears the

burden of demonstrating that no issues of material fact exist for trial. Celotex Corp. v.

Catrett (1986), 477 U.S. 317, 330, 106 S.Ct. 2548, 91 L.Ed.2d 265. The standard for

granting summary judgment is delineated in Dresher v. Burt (1996), 75 Ohio St.3d 280

at 293, 662 N.E.2d 264: “ * * * a party seeking summary judgment, on the ground that

the nonmoving party cannot prove its case, bears the initial burden of informing the trial

court of the basis for the motion, and identifying those portions of the record that

demonstrate the absence of a genuine issue of material fact on the essential element(s)

of the nonmoving party's claims. The moving party cannot discharge its initial burden

under Civ.R. 56 simply by making a conclusory assertion the nonmoving party has no

evidence to prove its case. Rather, the moving party must be able to specifically point to

some evidence of the type listed in Civ.R. 56(C) which affirmatively demonstrates the

nonmoving party has no evidence to support the nonmoving party's claims. If the

moving party fails to satisfy its initial burden, the motion for summary judgment must be

denied. However, if the moving party has satisfied its initial burden, the nonmoving party

then has a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing
Tuscarawas County, Case No. 2014 AP 10 0044                                            6


there is a genuine issue for trial and, if the nonmovant does not so respond, summary

judgment, if appropriate, shall be entered against the nonmoving party.” The record on

summary judgment must be viewed in the light most favorable to the opposing party.

Williams v. First United Church of Christ (1974), 37 Ohio St.2d 150, 309 N.E.2d 924.

      {¶17} Appellant maintains there remains a genuine issue of material fact as to

whether a perilous situation existed, which would necessitate Appellee to exercise a

heightened standard of care.

      {¶18} Appellant cites as support Williams v. Putnam Transfer & Storage, Eighth

Dist. No. 64659, 1994WL30425, in which the Eighth District held,

             In addition, case law imposes a higher standard of care on

      operators of motor vehicles when (1) a child pedestrian is involved; (2)

      children may reasonably be expected to be in the vicinity; or (3) the driver

      becomes aware of a perilous situation. See Sargent v. United

      Transportation Co. (1978), 56 Ohio App.2d 159; James v. Franks (1968),

      15 Ohio App.2d 215; Falck v. Proos (1982), 8 Ohio App.3d 22; Bell, supra;

      Hubner, supra.

      {¶19} It is undisputed Appellant was thirty-seven years old at the time of the

accident; thus, not of tender years. Further, it is uncontroverted Appellant did not have

her flashers or emergency lights on at the time of the incident. There were no conditions

present, prior to Ramsier seeing Appellant on the roadway to put Ramsier on notice of

Appellant's presence. Why the weather and road conditions may have presented a

perilous situation, for the reasons discussed infra, we find Appellant has not

demonstrated Ramsier violated even a heightened duty of care.
Tuscarawas County, Case No. 2014 AP 10 0044                                              7


      {¶20} Appellant further maintains the totality of the circumstances creates a

genuine issue of material fact as to whether Appellee Ramsier was negligent.

      {¶21} The undisputed evidence demonstrates Appellant exited her car and

attempted to wave down Appellee Ramsier. Ramsier did not have an obligation to look

for pedestrians in his path.   Deming v. Osinki 24 Ohio St2d. 179, 265 N.E.2d 554

(1970). We find Appellant's assertion there is a genuine issue of fact as to where she

was at the time of the alleged contact with Ramsier's truck is belied by the evidence.

Appellant's assertion she was beside her car is unreasonable because her car was off

the opposite side of the roadway. There is no evidence Ramsier ever left his side of

the roadway, let alone crossed over and left the opposite side of the roadway where

Appellant asserts she was standing near her car. Pursuant to R.C. 4511.50, Appellant

had a duty to walk on the shoulder of the highway and stay as near to the outer edge as

possible, and to yield the right of way to all other vehicles.     There is no evidence

Ramsier violated any traffic regulations, or failed to yield the right of way to Appellant.

The evidence supports the conclusion that Appellant had improperly entered upon the

highway.

      {¶22} Viewing the evidence in a light most favorable to Appellant, we find there

are no genuine issues of material fact, and reasonable minds could come to but one

conclusion in favor of Appellees. Accordingly, we do not find the trial court erred in

granting summary judgment in favor of Appellees Ramsier and Mineral Trucking, Inc.
Tuscarawas County, Case No. 2014 AP 10 0044                              8


      {¶23} The September 23, 2014 Judgment Entry entered by the Tuscarawas

County Court of Common Pleas is affirmed.

By: Hoffman, P.J.

Farmer, J. and

Wise, J. concur
