Dunbar v. Beacom , 2023 Ohio 857 ( 2023 )

[Cite as Dunbar v. Beacom, 2023-Ohio-857.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MIAMI COUNTY
ERICA DUNBAR :
:
Appellant : C.A. No. 2022-CA-19
:
v. : Trial Court Case No. 22 CV 90
:
JOE BEACOM, ET AL. : (Civil Appeal from Common Pleas
: Court)
Appellees :
:
...........
OPINION
Rendered on March 17, 2023
...........
JANE M. LYNCH & JARED A. WAGNER, Attorneys for Appellees
MICHAEL L. WRIGHT & ROBERT L. GRESHAM, Attorneys for Appellant
.............
LEWIS, J.
{¶ 1} Plaintiff-Appellant Erica Dunbar appeals from the trial court’s order granting
summary judgment to Defendant-Appellee Joe Beacom. For the following reasons, we
reverse the judgment of the trial court and remand the cause for further proceedings
consistent with this opinion.
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I. Facts and Course of Proceedings
{¶ 2} At around 7:00 a.m. on the morning of November 1, 2018, Beacom was
driving north on Nashville Road on his way home from working the third shift at a
distribution warehouse in Tipp City. At that same time, Dunbar was attempting to place
her two trash bins just off Nashville Road in front of the house in which she lived at 1865
Nashville Road. The weather conditions were rainy, and it was dark outside.
Ultimately, Beacom hit Dunbar with his vehicle, resulting in Dunbar’s being thrown and
left unconscious in her driveway. Beacom waited by Dunbar until Dunbar’s mother called
for emergency assistance. Beacom suffered numerous injuries from the collision,
including two broken hips, a shattered pelvis, injuries to the right side of her butt, and a
gash on her head.
{¶ 3} On February 20, 2020, Dunbar commenced an action against Beacom in the
Common Pleas Court of Miami County, alleging that Beacom had negligently failed to
maintain an assured clear distance ahead and had engaged in distracted driving by using
a handheld cellphone while driving. Dunbar was deposed on December 4, 2020.
Dunbar testified that, on the morning of the accident, she and her son were living with her
mother and stepfather at 1865 Nashville Road. Dunbar Depo., p. 7-9. Dunbar was
getting her son ready for school at approximately 7:00 a.m.; it was raining and she was
fully dressed. She had on a blue jean jacket. Id. at 31-33. Dunbar began taking the
first of two trash bins out to Nashville Road. Id. at 31-32. She explained that she had
finished placing one trash bin just outside the white line of the road and noticed the
headlights of a vehicle coming North on Nashville Road in her direction. She decided
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she had enough time to go back and get the second trash bin. She did not remember
what happened after she began heading back to get the second trash bin. Id. at 32.
Specifically, she testified: “All I remember is I was taking that first trash can out. I set it
out. I looked down the street, and I seen a car coming. He was before Swailes Road.
I went back to go get the second trash can. I don’t know what happened after that, I
don’t know.” Id. at 33-34.
{¶ 4} Dunbar testified that she did not walk onto the road when she placed the first
trash bin just outside the white line of the road. Id. at 39-45. When asked again whether
she was on the road at any point, Dunbar testified:
I have to be -- I was behind the white line. I was -- I wasn’t in the
street, but I do have to turn [the trash bin] around. And I made sure it was
very clear there was no cars. I turned it around and went back to my
driveway, but I am not in the street. I have to be in the street because it’s
on the curb, but I am behind the white line. It’s a country road.
Id. at 45. Dunbar agreed that in order to have put the trash bin in the position it was
found on the morning of the accident, she had to have stood at or near the outer white
line of the road. Id. at 46-47.
{¶ 5} Dunbar explained that the last thing she remembered happening was that
she walked into her driveway to get the second trash bin, and she saw her mom and son
walking out of the house. Id. at 49-50. She explained:
No, mind you – no, mind you, I was facing my mother. So my – my
front body was headed facing my house. I seen my mom and my son, so
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– and, mind you, I have the impression of his truck in my right side of my
butt, so I was facing the house. My body was in the driveway facing my
house.
Id. at 51.
{¶ 6} After being hit by Beacom’s vehicle, Dunbar was found on the ground in her
driveway between some rocks. Id. at 56. Dunbar conceded that she had no idea how
far into the driveway she had been when she was hit by Beacom’s vehicle. Id. at 55.
As a result of the accident, Dunbar had two broken hips, a shattered pelvis, injuries to the
right side of her butt, and a gash on her head. Id. at 61-62.
{¶ 7} Beacom was deposed on February 12, 2021. He testified that, on the
morning of the accident, he had been driving home from his job as a warehouse clerk at
the Meijer Distribution facility in Tipp City. His shift went from 10:00 p.m. to 6:30 a.m.
Beacom Depo., p. 17-18, 25. After stopping at a gas station to fill up his truck with gas,
he eventually turned right onto Nashville Road. Id. at 27, 31. It was raining and dark
on Nashville Road, and he had his windshield wipers turned on high. Id. at 32-33, 73-
74. Beacom agreed with counsel’s recitation of Beacom’s discovery responses that he
“saw a handle of a trash can out of the right side of [his] windshield” and then “turn[ed] a
hard left while pressing brakes to avoid not hitting the trash can.” Id. Beacom thought
he had hit the trash can, so he stopped his truck and walked back toward where the trash
can was. He then saw Dunbar lying on the ground in the driveway. Beacom saw a boy
come out of the house, and then a woman came out. The woman called 911 for
assistance. Id. at 35-47.
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{¶ 8} Beacom testified that he had at no point crossed the white line on the right
side of the road. Id. at 35. Rather, he stated that he at some point visualized the handle
of the trash can, which caused him to turn a hard left to avoid the trash can. Id. at 36.
Beacom believed the trash can was in the road across the white line. Id. at 38. Another
vehicle was heading in the opposite direction on Nashville Road and passed Beacom just
before he reached Dunbar’s residence. He saw the trash can two or three seconds after
the car had passed him. Id. at 72-73. Beacom stated he never saw Dunbar but “I had
hit – I had seen something go by the window when I went by the trash can. I’m not being
– not sure what it was.” Id. at 60.
{¶ 9} Beacom estimated that he was going 35 miles per hour when his vehicle hit
Dunbar. But the police report stated that Beacom had stated that he was going between
the speed of 45 and 50 miles per hour. Beacom disagreed with the police report. He
stated that the police officer decided to make it 45-50 even though Beacom told him he
was going between 35 and 40 miles per hour. Id. at 57-71.
{¶ 10} Exhibit A to Beacom’s deposition was a traffic crash report completed by an
officer with the Troy Police Department. At the end of that exhibit was a “Traffic Crash
Witness Statement” that had been completed and signed by Beacom. The statement
explained that Beacom was “going north on Nashville, raining and dark, and out of
nowhere I saw trash can then something in front of it. Saw the object, hit the brakes and
the object. [T]urned around to see what I hit and it was a girl. The trash can was on the
fog line and she was on the road.”
{¶ 11} In the traffic crash report, Police Officer Steffano stated, in whole:
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Unit 1 was traveling NB on Nashville Rd. a two lane country road with
a posted speed limit of 55 mph. Unit 1 stated he was traveling between
the speed of 45 to 50 mph. Unit 2, a pedestrian, was taking out the trash
on the side of a dark/non-lighted road in front of address number 1865.
The weather conditions at the time of call was heaving rain/wet roads. Unit
1 stated he did not see Unit 2 and struck Unit 2 with the right side of his
vehicle causing functional damage to the headlight. Unit 2 is believed to
have gone up onto the hood of Unit 1 due to damage to the antenna and
top portion of the hood. Unit 1 stated he did not brake until he hit Unit 2.
Unit 1 turned around and came back to the location after realizing he hit
something. There was no evidence that indicated Unit 1 had left the
roadway or was not in his lane of travel at anytime.
Officer Steffano also noted in a supplement to a Troy Police Department case report that
the “[e]xact location of [Dunbar] in the roadway is unknown.”
{¶ 12} Following the depositions, Beacom filed a motion for summary judgment.
Dunbar then filed a voluntary dismissal of the action. On March 11, 2022, Dunbar refiled
her complaint, alleging that Beacom had failed to maintain an assured clear distance and
had been distracted by sending or receiving a text message while driving, which resulted
in injuries to Dunbar. Beacom then refiled his summary judgment motion. Along with
the depositions of Beacom and Dunbar and the police report, Beacom relied on the expert
report of Charles R. Scales, which was attached as Exhibit 2 to his motion for summary
judgment.
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{¶ 13} Scales authored a “Crash Reconstruction Report.” According to the report,
Dunbar was found lying in the middle of her driveway approximately 30 feet from the
handle side of the trash can that she had placed off Nashville Road. Expert Report, p.
1. Scales explained that “[t]he trash cart and a mailbox on the opposite side of the
driveway had no sign of impact and would have limited the opportunity for Beacom to
drive out of his lane.” Id. The Report noted that “Dunbar’s clothing was described as a
pink robe by the officer, but she testified that it was a jean jacket. He did not observe
any bright clothing that was white or reflective.” Id. at p. 3.
{¶ 14} Scales stated that “[t]here was no physical evidence of braking until
[Beacom] stopped to turn around after impact.” Id. at 8. Further, Scales conducted
what he termed a “Speed Analysis,” trying to reconstruct where Dunbar likely had been
and how fast Beacom had likely been going when Beacom struck Dunbar with his truck.
According to Scales: “The pedestrian would have been struck then thrown approximately
30 feet if she were standing at the trash cart and landed in the middle of the driveway.
The range could include any distance up to 36 feet if the entire width of the driveway is
considered and Erica Dunbar’s deposition testimony that she was found between the
rocks, is accurate.” Id. at 8. However, Scales noted that “[t]he actual impact area,
landing area, throw distance and vehicle speed are unknown.” Id. Scales opined that
“[t]he analysis of the pedestrian impact with the available evidence, indicates the throw
distance is expected to be far enough to place the area of impact on the roadway, near
the trash cart while the truck was approaching at a speed that was described as 45-50
MPH.” Id. at 11.
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{¶ 15} Scales also conducted what he titled a “Pre-Crash Analysis.” In this
section of his report, Scales attempted to analyze the ability to detect and avoid Dunbar
based on the conditions that were likely present on the morning of the accident. Scales
used an “Interactive Driver Response Research” software to determine that the average
recognition distance for a pedestrian observed on the road in front of the passenger side
headlight on a vehicle with similar headlight bulbs that Beacom had on his truck would be
140 feet if the pedestrian was dressed in gray clothing. Id. at 14. But that this number
would increase to 176.4 feet according to studies involving unlit roadways, independent
of headlight condition. However, Scales stated that rain falling would reduce those
distances by 12.6% and the glare of oncoming headlights would reduce the detection
distances by approximately 31%. Scales then took into account that it takes a half
second to move the foot over to the brake. Finally, Scales made what he described as
a “reasonable estimate of the best braking effort possible for [Beacom’s] truck on the wet
asphalt.” Id. Scales opined: “The available room to brake would potentially allow time
to slow down, but not stop. A combination of adjustments for glare and rainfall would
further reduce the distances and chance for braking. Braking was possible and may
have occurred, but crash avoidance was not a reasonable expectation.” Id.
{¶ 16} Scales also made the following conclusions in the “Summary” section at the
end of his report:
Dunbar was found approximately 30 feet from the trash cart and she
had been thrown less than 38 feet.
The throw distance limits the speed of the truck to less than his stated
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speed of 45-50 MPH. The sustained injuries would ordinarily be expected
at speeds over 25 MPH. Pre-impact braking would allow for Beacom’s
stated speed to be accurate, before slowing to cause the throw distance
that is evident here.
Dunbar asserted that she was struck outside of the roadway. The
undamaged trash cart and undamaged mailbox mark the boundary of the
truck’s potential path. 25 MPH was not slow enough to make the two
successive steering movements that are needed to clear the obstacles,
move far enough out of the lane, and still leave a reasonable throw distance.
The rainfall, potential headlight glare and poor reflectivity of Dunbar’s
clothing created a condition that made it unreasonable to expect that
Beacom would detect her early enough to avoid the collision.
Concluding, the evidence does not support the possibility that
Dunbar was outside of the lane of travel when she was struck, and the
evidence is not consistent with illegal or unsafe speed.
The most likely circumstance was that Dunbar was in the lane and
near the trash cart when she was struck at a speed that was between 25 –
45 MPH.
The analysis of the factors that related to when Dunbar could be
detected by the average driver, allows for the possibility that Beacom may
have had time to brake and reduce his speed, but there is no expectation
that Beacom could have avoided the collision at his stated speed of 45-50
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MPH.
Id. at 15.
{¶ 17} On June 23, 2022, the trial court granted summary judgment to Beacom on
all the pending claims. According to the trial court, Dunbar had not identified a triable
issue that she was struck in her driveway. Decision, p. 12. Further, the trial court found
that Dunbar had failed to take a counter position against Beacom’s expert, who opined
that it was “unreasonable to expect that Beacom would detect [Dunbar] early enough to
avoid the collision.” Id. at 13. Dunbar filed a timely notice of appeal from the trial court’s
judgment.
II. The Trial Court Erred in Granting Summary Judgment to Beacom Where There
Were Genuine Issues of Material Fact Regarding Where Dunbar Was When
Beacom’s Truck Struck Her and Whether Beacom Should Have Seen Dunbar
Early Enough to Avoid the Collision
{¶ 18} Dunbar’s sole assignment of error states:
THE LOWER COURT ERRED IN GRANTING DEFENDANT
SUMMARY JUDGMENT ON PLAINTIFF’S NEGLIGENCE CLAIM.
{¶ 19} Appellate review of a trial court's ruling on a summary judgment motion is
de novo. Schroeder v. Henness, 2d Dist. Miami No. 2012-CA-18, 2013-Ohio-2767, ¶ 42,
citing Helton v. Scioto Cty. Bd. of Commrs., 123 Ohio App.3d 158, 162, 703 N.E.2d 841(4th Dist.1997). De novo review “ ‘means that this court uses the same standard that the
trial court should have used, and we examine the evidence to determine whether as a
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matter of law no genuine issues exist for trial.’ ” Riverside v. State, 2016-Ohio-2881, 64
N.E.3d 504, ¶ 21 (2d Dist.), quoting Brewer v. Cleveland City Schools Bd. of Edn., 122
Ohio App.3d 378, 383, 701 N.E.2d 1023 (8th Dist.1997), citing Dupler v. Mansfield
Journal Co., Inc., 64 Ohio St.2d 116, 413 N.E.2d 1187 (1980). On such review, we do
not grant deference to the trial court's determinations. Powell v. Rion, 2012-Ohio-2665,
972 N.E.2d 159, ¶ 6 (2d Dist.), citing Brown v. Scioto Cty. Bd. of Commrs., 87 Ohio App.3d
704, 711, 622 N.E.2d 1153 (4th Dist.1993).
{¶ 20} Pursuant to Civ.R. 56(C), summary judgment is proper when (1) there is no
genuine issue as to any material fact, (2) the moving party is entitled to judgment as a
matter of law, and (3) reasonable minds, after construing the evidence most strongly in
favor of the nonmoving party, can only conclude adversely to that party. Zivich v. Mentor
Soccer Club, Inc., 82 Ohio St.3d 367, 369-370, 696 N.E.2d 201 (1998), citing Horton v.
Harwick Chem. Corp., 73 Ohio St.3d 679, 653 N.E.2d 1196 (1995), paragraph three of
the syllabus. The moving party carries the initial burden of affirmatively demonstrating
that no genuine issue of material fact remains to be litigated. Dresher v. Burt, 75 Ohio
St.3d 280, 292, 662 N.E.2d 264 (1996). To this end, the movant must be able to point
to evidentiary materials of the type listed in Civ.R. 56(C) that a court is to consider in
rendering summary judgment. Id. at 292-293.
{¶ 21} Once the moving party satisfies its burden, the nonmoving party may not
rest upon the mere allegations or denials of its pleadings. Id. at 293. Rather, the burden
then shifts to the nonmoving party to respond, with affidavits or as otherwise permitted by
Civ.R. 56, setting forth specific facts that show that there is a genuine issue of material
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fact for trial. Id. Throughout, the evidence must be construed in favor of the nonmoving
party. Id.
{¶ 22} “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.” (Citations omitted.) Norris v.
Ohio Std. Oil Co., 70 Ohio St.2d 1, 2, 433 N.E.2d 615 (1982).
{¶ 23} In his motion for summary judgment, Beacom contended that he did not
owe a duty to Dunbar unless he saw or had notice that she was in his lane of travel.
Amended Motion for Summary Judgment, p. 10. According to Beacom, Dunbar
“suddenly entered Beacom’s lane of travel in dark clothing on a dark and raining morning,
giving Beacom no opportunity to see her.” Id. Further, Beacom contended that “it is not
possible that [Dunbar] was in the driveway at the time of the accident.” Id. at 11.
Rather, “[b]ased on how far [Dunbar] traveled after impact, she would have had to have
been on the roadway, near the trash can.” Id. at 12, citing Expert Report, p. 11.
{¶ 24} In response to Beacom’s motion for summary judgment, Dunbar contended
that genuine issues of material fact remained as to where Dunbar was standing when
Beacom struck her with his truck, what Dunbar was wearing at the time of the collision,
whether Beacom failed to maintain an assured clear distance ahead, and whether
Beacom’s attention was diverted from the task of driving, creating an unsafe danger to
others. According to Dunbar, “[e]xactly what Plaintiff was wearing would drastically
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change whether she was reasonably discernible and should therefore be left to the trier
of fact.” Memorandum in Opposition to Motion for Summary Judgment, p. 9. Further, if
Dunbar was not in her driveway but also not standing in the road at the time of the
collision, there remained a genuine issue of material fact as to whether Beacom was in
violation of the R.C. 4511.33(A)(1). Id. at 5. Dunbar did not present any evidence in
her opposition to Beacom’s motion for summary judgment in support of her distracted
driving claim.
{¶ 25} The trial court found that Dunbar’s belief that she had been struck in her
driveway was not reasonable given the expert’s reconstruction of the accident. Further,
the trial court did its own calculations to determine that “Plaintiff’s version of events would
not leave Defendant enough reaction time (.75 seconds) to react and avoid the mailbox;
moreover, if [Beacom] had hit Plaintiff while she was standing at her trash bin, he would
have had only .06 seconds (.81 distance - .75 reaction time) to steer clear of the mailbox.”
June 23, 2022 Decision, p. 11. This calculation was based on Beacom’s stated speed
of 35 miles per hour and the assumption “that the reaction time of the average man is
about three quarters of a second.” Id., quoting State v. Bush, 88 Ohio Law Abs. 161,
182 N.E.2d 43, 47 (C.P.1962). The trial court concluded that Dunbar did not “identify
any admissible evidence to counter the expert’s findings,” but rather offered “only
speculation and conclusion.” Id. Therefore, the trial court found that Dunbar had not
identified a triable issue that she was struck in her driveway. Id. at 12.
{¶ 26} The trial court also found that Dunbar had not identified a triable issue that
Beacom filed to maintain an assured clear distance ahead, as required by R.C.
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4511.21(A). According to the trial court, assuming Dunbar was hit on the road, “[t]he
questions remain whether a jury must determine whether Plaintiff suddenly appeared
and/or was reasonably discernable.” June 23, 2022 Decision, p. 12. The trial court
noted that Beacom’s expert opined that “[t]he rainfall, potential headlight glare and poor
reflectivity of Dunbar’s clothing created a condition that made it unreasonable to expect
that Beacom would detect her early enough to avoid the collision.” Id. at 13, quoting
Expert Report, p.15. Based on this opinion, along “[w]ith no counter position taken by
Plaintiff, except for the conjecture above,” the trial court concluded that Beacom was
entitled to summary judgment. Id.
{¶ 27} Before addressing the trial court’s finding that there were no genuine issues
of material fact, we will first address Beacom’s contention in his appellate brief and at oral
argument that we should affirm the trial court’s judgment based on Dunbar’s failure to
present evidence in opposition to Beacom’s motion for summary judgment. In particular,
Beacom contends that we must affirm the trial court’s judgment, because Dunbar failed
to present any evidence to the trial court that supported her contention that she was struck
by Beacom’s truck while she was standing in her driveway. Moreover, Dunbar did not
submit any evidence in response to the report of Beacom’s expert.
{¶ 28} In Morris v. Ohio Cas. Ins. Co., 35 Ohio St.3d 45, 47, 517 N.E.2d 904(1988), the Ohio Supreme Court stated:
“[I]t might appear that the nonmoving party must respond to an
adverse motion for summary judgment or face the entry of judgment against
him. However, this court has stated that even where the nonmoving party
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fails completely to respond to the motion, summary judgment is improper
unless reasonable minds can come to only one conclusion and that
conclusion is adverse to the nonmoving party. Toledo's Great E. Shoppers
City, Inc. [v. Abde's Black Angus Steak House No. III, Inc., 24 Ohio St.3d
198, 201-202, 494 N.E.2d 1101 (1986)]. Accordingly, as the burden is
upon the moving party to establish the non-existence of any material factual
issues, the lack of a response by the opposing party cannot, of itself,
mandate the granting of summary judgment.
(Emphasis sic.)
{¶ 29} Although a party opposing summary judgment should always do its best to
present evidence in response to the motion, that is not absolutely required by Civ.R. 56 if
the party who brought the motion did not carry its initial burden of proving the absence of
any genuine issue of material fact. In other words, if genuine issues of material fact
remain after the movant’s evidence is considered, then summary judgment is not
appropriate, regardless of how effective the party opposing summary judgment is in
responding to the motion.
{¶ 30} We also note that the trial court focused on the fact that Dunbar’s version
of being struck while standing in her driveway was so unsupported by the record that it
could not create a genuine issue of material fact. We agree that there is no genuine
issue of material fact that, when struck, Dunbar was not in her driveway. The trial court
then cited to a United States Supreme Court case that held: “When opposing parties tell
two different stories, one of which is blatantly contradicted by the record, so that no
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reasonable jury could believe it, a court should not adopt that version of the facts for
purposes of ruling on a motion for summary judgment.” June 23, 2022 Decision, p. 13,
quoting Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007).
{¶ 31} We do not believe the case before us is like the situation the court faced in
Harris. There, the Court reviewed a denial of a motion for summary judgment filed by a
police officer based on sovereign immunity. The underlying facts involved a high speed
chase that was caught on camera. The videotape clearly contradicted the version of the
story told by the plaintiff. Ultimately, the Supreme Court concluded that plaintiff’s
“version of events is so utterly discredited by the record that no reasonable jury could
have believed him. The Court of Appeals should not have relied on such visible fiction;
it should have viewed the facts in the light depicted by the videotape.” Harris at 380-381.
In Harris, the Court had to choose between only two versions of events, one of which was
clearly proven incorrect, especially considering the existence of video evidence. But
here, the trial court did not have to choose solely between Dunbar’s speculation that she
was in her driveway when she was struck or Beacom’s contention that Dunbar must have
been on the road near the trash bin when he struck her. If there was a genuine issue of
material fact whether other scenarios were possible which did not perfectly align with the
parties’ contentions, the trial court had to consider them before granting summary
judgment. For example, if Dunbar was struck when she was a few feet off the road on
her way back to her driveway, then summary judgment would not be appropriate. Or if
Dunbar was struck while on the road, but Beacom should have seen her sufficiently in
advance to avoid her, then summary judgment would not be appropriate.
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{¶ 32} As we noted, the overwhelming evidence established that Dunbar was not
standing in her driveway when she was struck by Beacom’s truck. But the inquiry did
not end there. The next question was whether a reasonable juror, after construing the
evidence most strongly in Dunbar’s favor, could have concluded that Dunbar was struck
while she was either standing or walking beside the road on the way back to her driveway.
Beacom’s expert and the trial court answered this question in the negative. And both
made several assumptions and calculations to arrive at their answer.
{¶ 33} The evidence on which the trial court relied in making its determination that
no genuine issues of material fact remained included the deposition testimony of Beacom
and Dunbar, the police report, Beacom’s statement to police, and the expert report.
Based on our review of that evidence, we believe genuine issues of material fact remained
relating to whether Dunbar was on the road when she was struck by Beacom’s vehicle
and at what point Beacom should have seen Dunbar sufficiently to avoid hitting her with
his truck.
{¶ 34} There was limited evidence of record regarding where exactly Dunbar was
standing when she was struck by Beacom’s truck. Dunbar’s testimony was that she did
not step into the road and that she began to walk back to get the other trash bin after she
noticed a car coming north on Nashville Road. Although her recollection that she made
it to her driveway was contradicted by substantial evidence, we are not convinced this
meant a reasonable juror could not have found that she was off the road walking back
toward her driveway when she was struck. It could just be that she could not recall
exactly what had happened after she placed the first trash can by the road, because she
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suffered a traumatic injury when she was struck by Beacom’s truck. Beacom’s expert,
Charles Scales, made it clear in his report that “[t]he actual impact area, landing area,
throw distance and vehicle speed are unknown.” Although Scales attempted to recreate
what he considered to be the most likely scenario based on the information he had
reviewed, his recreation was an educated guess, not evidence of what happened. One
of the pieces of information on which Scales heavily relied was the police officer’s
statement that “[t]here was no evidence that indicated [Beacom] had left the roadway or
was not in his lane of travel at anytime.” But it is unclear what type of investigation went
into forming this conclusion. At the time the police officer made this statement, he had
only interviewed Beacom and presumably looked around for tire tracks or skid marks.
The police officer had not interviewed Dunbar, because she had been taken to a hospital.
The police officer also stated that the “[e]xact location of [Dunbar] in the roadway is
unknown.”
{¶ 35} Beacom’s testimony also did not nail down where Dunbar was located when
he hit her with his truck. Indeed, Beacom’s testimony contained some inconsistencies.
First, Beacom testified that he was going approximately 35 miles per hour when he hit
Dunbar. But the police report stated that Beacom told the officer that he had been going
45 to 50 miles per hour. Beacom testified that the police officer’s report was incorrect
and that the police officer just chose to assign that arbitrary speed despite what Beacom
had told him. Beacom also testified that he had never crossed the white line on the right
side of his lane of travel, but he also testified that at some point he visualized the handle
of the trash bin, which caused him to turn a hard left to avoid the trash bin. But it was
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undisputed that the trash bin was outside the white line of the road, so avoiding it would
not have required a hard left if Beacom’s truck was not outside the white line of the road.
While Beacom also testified that he thought the trash bin had been across the white line
and in the road, even Beacom’s expert stated that the trash bin had been outside the
white line, and there was no evidence that it had been moved from where Dunbar had
placed it a short time earlier.
{¶ 36} In his witness statement that was completed the morning of the accident,
Beacom stated that, “out of nowhere I saw trash can and then something in front of it.
Saw the object, hit the brakes, and the object. [T]urned around to see what I hit and it
was a girl.” This statement differed from his deposition testimony where he stated that
he had seen “a handle of a trash can out of the right side of [his] windshield” and then
“turn[ed] a hard left while pressing brakes to avoid not hitting the trash can.” He testified
that he did not see Dunbar before hitting her.
{¶ 37} The trial court decided to conduct its own analysis of what was the most
likely position of Dunbar by using Beacom’s stated speed of 35 miles per hour to
determine whether it was possible for Beacom to have hit Dunbar with his truck while
Dunbar was standing off the road. The trial court, like Beacom’s expert, noted that
neither the trash bin nor the mailbox was hit by Beacom’s truck. Therefore, both
assumed that in order for Beacom to have hit Dunbar while she was standing off the road,
Beacom would have had to have hit her while he was traveling the distance between the
trash bin and the mailbox, and Beacom would have had to have reentered the road before
he reached the mailbox, because the mailbox was not damaged. Both the trial court and
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the expert said this scenario was very unlikely. In order to reach its conclusion, the trial
court took judicial notice that a vehicle travels approximately 14.67 feet per second for
every ten miles per hour of velocity. Then the court took into account that there were
41.6 feet between the trash can and the mailbox. Further, the trial court took judicial
notice that the reaction time of the average man is about three quarters of a second. The
court concluded that “Plaintiff’s version of events would not leave Defendant enough
reaction time (.75 seconds) to react and avoid the mailbox; moreover, if Plaintiff had hit
Plaintiff while she was standing at her trash bin, he would have had only .06 seconds (.81
distance - .75 reaction time) to steer clear of the mailbox.” June 23, 2022 Decision, p.
11.
{¶ 38} Beacom’s expert also made calculations based on several assumptions.
Importantly, Scales conceded that “[t]he actual impact area, landing area, throw distance
and vehicle speed are unknown.” Expert Report, p. 8. But Scales then cited to two
“technical papers” listing the projection efficiency (pedestrian throw speed divided by
vehicle speed) and “the results from numerous pedestrian throws that had similarities to
this crash.” According to Scales, one of the technical papers demonstrated “[d]istances
up to 47 feet (14.3 meters), were ordinarily associated with speeds under 38 MPH (60
kmh). Speeds at 55 MPH or above resulted in throws closer to 170 feet.” Id. Scales
then set out to determine whether it was likely that Beacom could have gone off the road
after the trash bin, hit Beacom with his truck, and then re-entered the road without hitting
the mailbox. Scales stated that “[t]here would also be a period to move the arms and
steer back toward the left. 0.5 second is a known time for limb movements to occur.”
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Id. at 10. Further, Scales opined that “[i]f centered within the lane, the driver would have
to use an emergency steering effort to get far enough right, early enough to line up with
the proper throw distance range but miss the trash cart.” Id. Based on these
assumptions, Scales concluded that “Dunbar’s version of events could not be confirmed
even when using an unexpectedly high level of driver performance and vehicle dynamics.”
Id. at 11. Ultimately, Scales opined that the “analysis of the pedestrian impact with the
available evidence, indicates the throw distance is expected to be far enough to place the
area of impact on the roadway, near the trash cart while the truck was approaching at a
speed that was described as 45-50 MPH.” Id.
{¶ 39} Scales also addressed whether the extent of Dunbar’s injuries could help
determine how far she was thrown by Beacom’s truck. Scales explained that “[t]he
extent of her injuries was compared to case files and available pedestrian crash studies.
Although similar examples were not located, many studies exist.” Id. at 12. Scales
noted one author “reported that impact speeds below 15 MPH caused severe injury for
9% of pedestrians while 30 MPH increased the risk to 45%.” Id. at 13. He noted that
another study reviewed 293 crashes “and reported severe injuries to the pelvis occurred
at speeds above 20 kmh (12 MPH), but with only a few occurring below 41 kmh (25
MPH).” Id. But Scales could not determine the distance thrown based solely on her
injuries. He conceded that he was unable to locate any similar examples in the crash
studies he reviewed.
{¶ 40} We believe that both the trial court and Beacom’s expert made several
assumptions that conflicted with the summary judgment requirement that the evidence be
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construed most strongly in favor of Dunbar. For example, both the trial court and the
expert concluded that Dunbar could not have been hit off the road because an average
person would not have had the necessary time in which to react when one factors in either
a .50 second or .75 second reaction time. The trial court borrowed its reaction time
component (.75 seconds) from a 1962 common pleas court case. Scales borrowed his
reaction time component (.50 seconds) from an unknown source. But Beacom did not
testify to his actual reaction time. Rather, he testified that he braked and made a hard
left turn after noticing the trash bin outside the right part of his windshield. The
deceleration and hard left turn, if made quickly enough after passing the trash bin and
exiting the roadway, could have resulted in Beacom’s hitting Dunbar as she stood off the
road facing her house and then re-entering the roadway before the truck reached the
mailbox. While Scales opined that this was very unlikely, his opinion was based on a
reaction time component that was not based on any evidence in the record.
{¶ 41} In short, Scales made several assumptions about the speed Beacom’s truck
was traveling, the distance Dunbar was thrown, and Beacom’s reaction time. He
conceded that the actual impact area, landing area, throw distance, and vehicle speed
were unknown. He used his experience and the available evidence to reconstruct what
he believed to be the most likely scenario that resulted in Dunbar’s injuries. But the trial
court has a different duty when faced with a motion for summary judgment. The trial
court must determine whether any genuine issues of material fact exist after construing
the evidence most strongly in Dunbar’s favor. Scales did not construe the evidence most
strongly in Dunbar’s favor. Therefore, we believe there remained a genuine issue of
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material fact regarding whether Dunbar was standing off the road when she was struck
by Beacom’s truck.
{¶ 42} Further, we believe there was a genuine issue of material fact as to whether
Beacom should have seen Dunbar sufficiently in advance to have had enough time to
avoid hitting her. Beacom’s expert concluded that Beacom may have had time to brake
and reduce his speed but “there is no expectation that Beacom could have avoided the
collision at his stated speed of 45-50 MPH.” Expert Report, p. 15. But Beacom testified
that his speed was actually 35 mph, which would presumably have given him more time
to react than the time his expert used in the calculation. Moreover, Beacom testified that
he applied the brakes immediately before hitting Dunbar, which would have further
lowered his speed. Also, Beacom’s testimony regarding what he saw conflicted
somewhat with other evidence in the record. In his written statement completed after the
accident, he said that he saw the trash bin and something in front of it. At this deposition,
he stated that he saw something go by his window when he went by the trash can. His
expert noted that there had been damage to the front driver’s side portion of Beacom’s
vehicle and to the antenna on the hood of his car. Apparently, the expert believed the
upper part of Dunbar’s body bent toward the vehicle, causing damage to the antenna,
while the lower portion of her body received the full impact from Beacom’s vehicle. But
Beacom testified that he had no idea that he had hit a person until he stopped and went
back to check on the trash bin.
{¶ 43} Once again, Beacom’s expert made several assumptions. First, the expert
assumed that Dunbar had been wearing a blue jacket rather than the pink robe that the
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police officer noted. The expert based this assumption on Dunbar’s deposition testimony
regarding her recollection of what she had been wearing. This was not construing the
evidence most strongly in favor of Dunbar. Further, the expert considered the fact that
a vehicle was traveling in the other direction than Beacom, which may have decreased
Beacom’s detection distances by as much as 31%. But Beacom testified this occurred
two or three seconds before he hit Dunbar, and Beacom did not testify that the lights of
the vehicle traveling in the opposite direction affected his ability to see. Moreover, the
expert did not take into account the possibility that the headlights of the other vehicle
could have actually illuminated Dunbar’s actual position for Beacom if Dunbar had in fact
been on the road when the vehicle passed her heading south toward Beacom. These
assumptions made by Beacom’s expert were not the result of construing evidence most
strongly in favor of Dunbar.
{¶ 44} It is understandable why Beacom’s expert did not construe the evidence
most strongly in favor of Dunbar. Beacom’s expert was hired to reconstruct the accident
in the most likely way it happened, based on his experience and his review of the available
evidence. Part of making such a reconstruction, however, requires the expert to make
decisions regarding what variables to include and what assumptions to make when critical
pieces of evidence are lacking. It is undisputed that the following critical pieces of
evidence were lacking: the actual impact area, landing area, throw distance, and vehicle
speed. While Scales’s report may be helpful for a juror to consider when the juror is
faced with the task of deciding whether Dunbar has established her case by a
preponderance of the evidence, we do not believe Scales’s report proved the absence of
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a genuine issue of material fact, especially in light of his assumptions that ran counter to
the summary judgment requirement that the evidence be construed most strongly in
Dunbar’s favor.
{¶ 45} The trial court erred when it granted summary judgment to Beacom. There
remain genuine issues of material fact regarding where Dunbar was standing when she
was struck by Beacom’s truck and when Beacom should have seen Dunbar. The
assignment of error is sustained.
III. Conclusion
{¶ 46} Having sustained the sole assignment of error, the judgment of the trial
court is reversed, and the cause is remanded for further proceedings consistent with this
opinion.
.............
WELBAUM, P.J. and TUCKER, J., concur.