Norris v. Ohio Standard Oil Co. ( 1982 )

Per Curiam.

Appellants set forth in their initial proposition of law that:

“A motorist whose lane is obstructed by a snowdrift is excused from complying with R. C. §4511.25, the ‘left of center’ statute. * * * ”

The issue before us here is whether defendants-appellees’ motion for summary judgment was properly granted.

“Summary judgment is a procedural device to terminate litigation and to avoid a formal trial where there is nothing to try. It must be awarded with caution, resolving doubts and construing evidence against the moving party, and granted only when it appears from the evidentiary material that reasonable minds can reach only an adverse conclusion as to the party opposing the motion. Petroff v. Commercial Motor Freight, Inc. (1960), 82 Ohio Law Abs. 433; Horvath v. Fisher Foods, Inc. (1963), 93 Ohio Law Abs. 182; Norman v. Thomas Emery’s Sons, Inc. (1966), 7 Ohio App. 2d 41; Morris v. First Natl. Bank & Trust Co. (1970), 21 Ohio St. 2d 25. A successful motion for summary judgment rests on the two-part foundation that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Kwait v. John David Management Co. (1974), 42 Ohio App. 2d 63.” Vetovitz Bros., Inc., v. Kenny Constr. Co. (1978), 60 Ohio App. 2d 331, 332.

To warrant a summary judgment in a tort action the trial court must properly conclude that:

“ * * * (1) the defendant was not negligent, or (2) that the plaintiff has assumed the risk, or (3) that the plaintiff was con-tributorily negligent.” (Emphasis sic.) Rainey v. Harshbarger (1963), 7 Ohio App. 2d 260, 264.

The Court of Appeals found in appellees’ favor in each instance stated above, though any one ground is sufficient to sustain the summary judgment.

Appellants’ first proposition of law involves construction of R. C. 4511.25(A)(2). We note at the outset that the issue of comparative negligence was not raised below and is not properly before us now. R. C. 4511.25, in part, provides:

“(A) Upon all roadways of sufficient width, a vehicle or trackless trolley shall be driven upon the right half of the roadway, except as follows:

H * * *

“(2) When an obstruction exists making it necessary to drive to the left of the center of the highway; provided, any person so doing shall yield the right of way to all vehicles traveling in the proper direction upon the unobstructed portion of the highway within such distance as to constitute an immediate hazard.”

This statute was enacted in its present form in 1975, and postdates Dibert v. Ross Pattern & Foundry Development Co. (1957), 105 Ohio App. 264, which was relied on by appellees and the Court of Appeals. The statute construed in Dibert, swpra, excused driving on the left when the “right half of the roadway * * * [was] closed to traffic,” and included no requirement that a car proceeding on the left yield to oncoming traffic. We agree with appellants that the General Assembly intended, in making the changes in the former statute, to permit a motorist to drive left of center when his lane is obstructed, as by a snowdrift. The motorist driving left of center must yield, however, to oncoming traffic, constituting an immediate hazard. In light of the record before us, Norris’ failure to yield to Hetler was a violation of R. C. 4511.25(A)(2), and constituted contributory negligence as a matter of law. Summary judgment for appellees was appropriate on this ground, and we need not consider appellants' other propositions of law.

The judgment of the Court of Appeals is affirmed.

Judgment affirmed.

Sweeney, Acting C. J., Victor, Locher, Holmes and Krupansky, JJ., concur. Stephenson, J., concurs in the judgment. C. Brown, J., dissents. Stephenson, J., of the Fourth Appellate District, sitting for Celebrezze, C. J. Victor, J., of the Ninth Appellate District, sitting for W. Brown, J.