Pursley v. Estate of Messman

[Cite as Pursley v. Estate of Messman, 2020-Ohio-2985.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
PAULDING COUNTY
BILLY E. PURSLEY, JR., ET AL.,
PLAINTIFFS-APPELLEES, CASE NO. 11-18-09
v.
ESTATE OF ASHLEY ANN
MESSMANN, ET AL.,
DEFENDANTS-APPELLEES,
-and- OPINION
RUSSELL D. WILLIAMS,
DEFENDANT-APPELLANT.
Appeal from Paulding County Common Pleas Court
Trial Court No. CI-15-010
Judgment Affirmed
Date of Decision: May 18, 2020
APPEARANCES:
Jason N. Flower and Tabitha L. Stewart for Appellant
Nathan P. Woodward for Appellee Progressive Southeastern Ins. Co.
Daniel R. Haude for Appellees Second Farms and Dale Janssens
Case No. 11-18-09
WILLAMOWSKI, J.
{¶1} Appellant Russell D. Williams (“Williams”) appeals the judgment of
the Paulding County Court of Common Pleas, granting summary judgment against
Williams. For the reasons set forth below, the judgment of the trial court is affirmed.
Facts and Procedural History
{¶2} On February 5, 2013, Dale Janssens (“Janssens”) was driving a tanker
truck (“Secord Tanker”) for Secord Farms, LLC, (“Secord Farms”) eastbound on
U.S. Highway 24 through “dense fog.” Janssens Deposition, 61, 70. This stretch
of U.S. Highway 24 has two eastbound lanes and two westbound lanes that are
divided by a median. Id. at 62. Ashley Messman (“Messman”) was driving
northbound on County Road 87. Gray Deposition, 40. At 7:53 A.M., Messman
drove into the intersection of County Road 87 and U.S. Highway 24, pulling in front
of the Secord Tanker. Janssens Deposition, 73, 88, 130. The Secord Tanker
broadsided Messman’s vehicle, came to a stop, and obstructed the left eastbound
lane of U.S. Highway 24. Doc. 68, Ex. B, C. Moments later, Billy Pursley
(“Pursley”), who was driving a semi-truck for Marten Transport (“Marten Transport
Vehicle”) eastbound on U.S. Highway 24, crashed into the Secord Tanker. Janssens
Deposition, 103, 148. Cusick Deposition, 22, 32. The Marten Transport Vehicle
jackknifed, slid off of the roadway, and came to rest in the median. Doc. 68, Ex. C.
{¶3} After the Secord Tanker and Messman’s vehicle had come to a rest,
Gary Schleinkofer (“Schleinkofer”), who was driving a Nissan Altima eastbound
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on U.S. Highway 24, saw the tanker truck obstructing the left lane of the road and
began braking. Doc. 68, Ex. D. Doc. 68, Ex. B., Black Statement. Schleinkofer
then began steering his vehicle left towards the median to avoid the Secord Tanker.
Doc. 68, Ex. D. At this point, Schleinkofer’s vehicle was then hit from behind by a
GMC Sierra Pickup Truck (“Pickup”) that was driven by Williams. Doc. 68, Ex.
D. Upon impact, the Pickup pushed Schleinkofer’s vehicle into the Secord Tanker
and then into the median. Doc. 68, Ex. D. Gray Deposition, 52. Williams’s Pickup,
which was pulling a Bobcat on a trailer, then struck the Secord Tanker. Doc. 68,
Ex. D, E.
{¶4} By the time the police arrived on the scene, a total of eight collisions
had occurred. Doc. 128, Ex. F. The first collision was between the Secord Tanker
and Messman. Doc. 128, Ex. G. The second collision was between the Marten
Transport Vehicle and the Secord Tanker. Doc. 68, Ex. C. The third collision was
between Williams’s Pickup, Schleinkofer’s vehicle, and the Secord Tanker. Doc.
128, Ex. F. The remaining five collisions that the police investigated are not
relevant to this appeal.
{¶5} The police conducted an investigation into the causes of the collisions
that morning. Sergeant Jonathan Gray (“Sergeant Gray”) stated in his deposition
that the investigation concluded that Williams was going too fast; that Williams did
not maintain an assured clear distance ahead (“ACDA”) of his vehicle; and that
Williams was at fault for his collision with Schleinkofer’s vehicle. Gray Deposition,
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48-49. Ohio State Trooper Chad Spallinger (“Trooper Spallinger”) similarly stated
that their investigation concluded that Williams failed to maintain an ACDA.
Spallinger Deposition, 82-84. Trooper Spallinger also stated that their investigation
did not find any evidence that indicates that Schleinkofer’s actions caused any of
the collisions. Id. at 68-70.
{¶6} On January 26, 2015, Pursley and his wife, Barb Pursley, filed a
complaint, seeking damages. Doc. 1. Among other parties, this complaint named
Janssens; Secord Farms; and Williams as defendants. Doc. 1. At the time of the
collision, Williams was driving a company vehicle. Doc. 6. On February 4, 2015,
Williams filed a pleading that contained a counterclaim against the Pursleys,
alleging that he was injured due to the negligence of Pursley. Doc. 6. He also made
crossclaims against Messman, Schleinkofer, and Janssens, alleging that these
individuals operated their vehicles in a negligent manner that led to his injuries.
Doc. 6. Williams also requested the joinder of the insurer of his company vehicle:
Progressive Southeastern Insurance Company (“Progressive”). Doc. 6, 128. He
also claimed that he might be entitled to underinsured benefits. Doc. 6. Progressive
filed their third-party answer on March 9, 2015, and alleged that Williams had not
established the conditions precedent to obtaining underinsured benefits. Doc. 44.
{¶7} On September 1, 2016, Progressive filed a motion for summary
judgment. Doc. 128. In this motion, Progressive argued that Williams had not
shown that another party was responsible for the accident that caused his injuries.
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Doc. 128. Progressive then argued that Williams’s collision with Schleinkofer’s
vehicle and the Secord Tanker was a separate accident from the collision between
Messman and the Secord Tanker and from the collision between the Secord Tanker
and Pursley’s Martin Transport Vehicle. Doc. 128. Thus, according to
Progressive’s argument, the cause of Williams’s collision was not these earlier
accidents but Williams’s failure to maintain an ACDA of his vehicle. Doc. 128. On
these grounds, Progressive argued that he was not legally entitled to underinsured
motorist coverage under the terms of the insurance policy. Doc. 128.
{¶8} On September 14, 2016, Janssens and Secord Farms filed a motion for
summary judgment that also argued that Williams failed to maintain an ACDA of
his vehicle. Doc. 136. Williams filed his response to the motions for summary
judgment on October 11, 2016. Doc. 139. On January 10, 2017, the trial court
granted the motions for summary judgment filed by Progressive, Secord Farms, and
Janssens as to Williams’s cross claim. Doc. 148. The appellant filed his notice of
appeal on July 13, 2018.1 Doc. 165. On appeal, Williams raises the following three
assignments of error:
First Assignment of Error
The Trial Court erred in granting the Defendant Janssen’s
Motion for Summary Judgment based on the finding that
1
Williams initially filed his notice of appeal on February 9, 2017. Doc. 152. However, this Court dismissed
Williams’s appeal for lack of a Civ.R. 54(B) certification. Noticing that other claims in this case were
unresolved, the trial court reissued its summary judgment order with a Civ.R. 54(B) certification on June 14,
2018. Doc. 162. Williams then filed his notice of appeal on July 13, 2018, commencing the instant appeal.
Doc. 165. Thus, this matter is properly before this Court.
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Appellant Williams violated ORC 4511.21(A), and the accident
scene was not reasonably discernible from Appellant’s vehicle
prior to the accident.
Second Assignment of Error
Appellant is entitled to an analysis of Comparative Fault
regardless of whether he violated the Assured Clear Distance
Ahead statute, and the trial court erred in finding that summary
judgment was appropriate.
Third Assignment of Error
Appellee Progressive Southeastern Insurance Company owes a
duty to provide underinsured/uninsured coverage to Appellant
for his injuries, and the trial court erred in finding that
Progressive was not required to provide coverage.
First Assignment of Error
{¶9} Williams argues that the trial court erred by finding that he violated
R.C. 4511.21(A) and by granting summary judgment on the basis of this finding.
Legal Standard
{¶10} Under the Ohio Rule of Civil Procedure 56(C), a trial court may grant
a motion for summary judgment when
(1) [n]o genuine issue as to any material fact remains 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.
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M.H. v. Cuyahoga Falls, 134 Ohio St.3d 65, 68, 2012-Ohio-5336, 979 N.E.2d 1261,
quoting Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267(1977), citing Civ.R. 56(C).
“The party moving for summary judgment has the initial burden
‘to inform the trial court of the basis for the motion, identifying
the portions of the record, including the pleadings and discovery,
which demonstrate the absence of a genuine issue of material
fact.’” Middleton v. Holbrook, 3d Dist. Marion No. 9-15-47, 2016-
Ohio-3387, 2016 WL 3223956, ¶ 8, quoting Reinbolt v. Gloor, 146
Ohio App.3d 661, 664, 767 N.E.2d 1197 (3d Dist.2001).
Williams v. ALPLA, Inc., 2017-Ohio-4217, 92 N.E.3d 256 (3d Dist.).
‘The burden then shifts to the party opposing the summary
judgment.’ “In order to defeat summary judgment, the
nonmoving party may not rely on mere denials but ‘must set forth
specific facts showing that there is a genuine issue for trial.’”
(Citations omitted.) Bates Recycling, Inc. v. Conaway, 2018-Ohio-5056, 126
N.E.3d 341, ¶ 10-11 (3d Dist.), quoting Byrd v. Smith, 110 Ohio St.3d 24, 2006-
Ohio-3455, 850 N.E.2d 47, ¶ 10, quoting Civ.R. 56(E).
{¶11} Appellate courts consider a summary judgment order under a de novo
standard of review. James B. Nutter & Co. v. Estate of Neifer, 3d Dist. Hancock
No. 5-16-20, 2016-Ohio-7641, ¶ 5. “[B]ecause summary judgment is a procedural
device to terminate litigation, it must be awarded with caution.” Murphy v.
Reynoldsburg, 65 Ohio St.3d 356, 358-359, 604 N.E.2d 138 (1992). For this reason,
on appeal, “[t]he nonmoving party * * * receives the benefit of all favorable
inferences when evidence is reviewed for the existence of genuine issues of material
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facts.” Ditech Financial, LLC v. Akers, 3d Dist. Union No. 14-18-02, 2018-Ohio-
2874, ¶ 7, quoting Byrd at ¶ 10.
{¶12} The initial question in this appeal is whether appellant failed to
maintain an ACDA of his vehicle in violation of R.C. 4511.21(A), which reads, in
its relevant part, as follows: “no person shall drive any motor vehicle, trackless
trolley, or streetcar in and upon any street or highway at a greater speed than will
permit the person to bring it to a stop within the assured clear distance ahead.” R.C.
4511.21(A). “The Supreme Court of Ohio has repeatedly held that a violation of
this statute, absent a legal excuse, constitutes negligence per se.” (Emphasis sic.)
Schoonover v. Cox, 3d Dist. Allen No. 1-93-30, 1993 WL 430136, *3 (Oct. 14,
1993), citing Lewis v. Certified Oil Co., 67 Ohio St.2d 277, 423 N.E.2d 464 (1981);
Woods v. Brown’s Bakery, 171 Ohio St. 383, 171 N.E.2d 496 (1960).
{¶13} “The assured-clear-distance-ahead rule mandates that ‘* * * a driver
is prohibited from operating any motor vehicle * * * at a rate of speed greater than
will permit him to bring it to a stop within the distance at which he can see a
discernible object obstructing his path.’” Sabo v. Helsel, 4 Ohio St.3d 70, 71, 446
N.E.2d 457 (1983), quoting Gumley v. Cowman, 129 Ohio St. 36, 193 N.E. 627(1934), paragraph two of the syllabus.
The ‘assured clear distance ahead,’ referred to in [R.C.
4511.21(A)] constantly changes as the motorist proceeds and is
measured at any moment by the distance between the motorist’s
car and the limit of his vision ahead, or by the distance between
the motorist’s car and any intermediate discernible static or
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forward moving object in the street or highway ahead constituting
an obstruction in the motorist’s path or lane of travel.
Erdman v. Mestrovich, 155 Ohio St. 85, 97 N.E.2d 674, paragraph one of the
syllabus. See also Cerny v. Domer, 13 Ohio St.2d 117, 235 N.E.2d 132 (1968),
paragraph two of the syllabus.
{¶14} In Pond v. Leslein, the Supreme Court articulated a four-prong test to
determine whether a driver has violated R.C. 4511.21(A):
a person violates the assured clear distance ahead statute if ‘there
is evidence that the driver collided with an object which (1) was
ahead of him in his path of travel, (2) was stationary or moving in
the same direction as the driver, (3) did not suddenly appear in
the driver’s path, and (4) was reasonably discernible.’ Thus, a
driver violates the statute as a matter of law if the party invoking
the statute presents uncontroverted evidence establishing all of
the elements necessary to constitute a statutory violation.
(Citations omitted.) Pond v. Leslein, 72 Ohio St.3d 50, 52, 647 N.E.2d 477 (1995),
quoting Blair v. Goff-Kirby Co., 49 Ohio St.2d 5, 7, 358 N.E.2d 634 (1976). “Where
there is conflicting evidence and reasonable minds could differ concerning any one
of the elements necessary to constitute a violation of the statute, a jury question
exists with regard to that element.” Id.{¶15} In determining whether an object is reasonably discernible, the Ohio
Supreme Court has provided the following definition:
“The word ‘discernible’ ordinarily implies something more than
‘visible’. ‘Visible’ means perceivable by the eye whereas
‘discernible’ means mentally perceptible or distinguishable,
capable of being ‘discerned’ by the understanding and not merely
by the senses.’”
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McFadden v. Elmer C. Breuer Transp. Co., 156 Ohio St. 430, 441-442, 103 N.E.2d
385, 391 (1952), quoting Colonial Trust Co., Admr. v. Elmer C. Breuer, Inc., 363
Pa. 101, 69 A.2d 126 (1949).
In most instances the question whether the object with which the
collision occurs is reasonably discernible gives little difficulty. A
train on a highway crossing or a truck or an automobile on the
highway in the driver’s path can be considered reasonably
discernible without more evidence than the fact of its presence.
(Emphasis sic.) Smiddy v. Wedding Party, Inc., 30 Ohio St.3d 35, 39, 506 N.E.2d
212, 217 (1987), quoting McFadden at 435. “If, however, the nature of the object
be such that reasonable minds might differ as to it being reasonably discernible,
evidence to establish that it was such is required.” Id. at 435. The Supreme Court
of Ohio has held that “an automobile, van, or truck stopped on a highway in a
driver’s path during daylight hours is, in the absence of extraordinary weather
conditions, a reasonably discernible object as a matter of law.”2 Smiddy at 40.
2
The Smiddy rule applies to objects that appear in the line of travel of a driver in daylight. Smiddy, supra, at
40. In this case, the accident occurred at 7:53 A.M. Janssens Deposition, 61, 70. Williams testified that “it
was daylight,” though “it was cloudy.” Williams Deposition, 93. He also affirmed that “[i]t was light and
[he] could see” and that the light conditions were not affecting his “vision in any way.” Id. Pursley testified
that the accident occurred during the period of the morning best described as “dawn.” Pursley Deposition,
177. He affirmed that, by this statement, he meant “there [was] some light out, it[ was] not black like it is at
night.” Id. at 177-178. Further, in the accident report, the “light conditions” are listed as “daylight.” Doc.
68, Ex. A. This testimony does not indicate that it was nighttime. In Murray v. ROC Lakeside, Inc., the
Eighth District applied the rule in Smiddy to an accident that occurred at dusk in the process of determining
whether the driver violated R.C. 4511.21(A). Murray v. ROC Lakeside, Inc., 8th Dist. Cuyahoga No. 75091,
1999 WL 125962, *5-6 (Feb. 18, 1999). Dawn and dusk are similar in that both periods offer drivers more
limited visibility due to reduced levels of sunlight. In both of these periods, there is some light outside,
though this light is not as bright as during other parts of the day.
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{¶16} “Cases involving the assured-clear-distance-ahead statute require
evaluation of the conduct of the driver in light of the facts surrounding the collision.”
Sauer v. Crews, 10th Dist. Franklin No. 10AP-834, 2011-Ohio-3310, ¶ 17, citing
Purcell v. Norris, 10th Dist. Franklin No. 04AP-1281, 2006-Ohio-1473, ¶ 16. In
this determination,
‘[n]either bends nor twists in the highway, crests in the road, dim
lights, fog, sleet, rain, or blinding lights of approaching motor
vehicles will excuse * * * [a driver] from the duty to drive so that
he can stop his vehicle within that assured clear distance ahead.’
Roszman v. Sammet (1969), 20 Ohio App.2d 255, 258, 254 N.E.2d
51 [(3d Dist.)], reversed on other grounds (1971), 26 Ohio St.2d 94,
269 N.E.2d 420. Instead, the driver of an automobile has a duty
to ‘stop his machine whenever he is so blinded as to be unable to
see the way in front of him.’ Parnell v. Bell (1962), 117 Ohio App.
125, 129-30, 191 N.E.2d 220 [(1st Dist.)].
Purcell at ¶ 19. See Pleimann v. Coots, 2d Dist. Greene No. 2002-CA-54, 2003-
Ohio-316, ¶ 17.
Legal Analysis
{¶17} On appeal, Williams advances several arguments that the Secord
Tanker in front of him was not reasonably discernible. In determining if there is a
question of fact as to whether the disabled Secord Tanker on the roadway was
reasonably discernible, we will first consider Williams’s testimony regarding what
he could discern as he entered into and emerged from the fog on the morning of the
accident. We will then examine the arguments that Williams raises on appeal.
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{¶18} In his deposition, Williams described the fog on the roadway on the
morning of the accident as “patchy.” Williams Deposition, 36. He stated that the
fog was getting “patchier and thicker” as he drove eastbound. Id. at 36. According
to his testimony, there was a dense “patch of fog” located on the roadway in between
him and the scene of the accidents. Id. at 72. In the deposition, this fog bank was
referred to as a fog bank. Id. at 72.
{¶19} Williams testified about what he remembered perceiving as he
approached, entered, and emerged from the fog bank, saying:
Somebody comes out and waves their hands like this to stop or
slow down, I applied the brake, I looked up, there was like no
visibility for like a split second, and the fog disappears, and all I
see is a big chaos in front of me. A tanker truck jackknifed in the
highway, I applied the brake all the way and tried to stop. I was
looking for a way out, the median was the first choice, I couldn’t
go that way because there’s vehicles or something I seen over
there, so I tried to go right of the semi truck.
(Emphasis added.) Williams Deposition, 40. He affirmed that, at the time he was
driving towards the fog bank, he “couldn’t see what’s behind [the waving
pedestrian], couldn’t see any other vehicles behind him.” Id. at 74. Williams also
stated the following:
I remember someone coming out and waving their hands from the
side of the road, slow down. I applied the brakes instantaneously,
didn’t slam on them, but I applied the brake, went through part
of the fog. You couldn’t see in front of you, and it was only for a
split second that it lasted. Seeing total chaos in front of you * * *
and that’s when I put the brake down to stop. [I] [l]ooked for a
way out because I felt like I was going to collide with the tanker
truck, and knew that I couldn’t go into the median for whatever
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reason it was. And then turned to my right to try to get over to
the other lane before impact, and I hit the tanker truck.
Id. at 48-49. He explained that the “chaos” that he saw as he emerged from the fog
was the “other vehicles.” Id. at 126.
{¶20} Williams also affirmed that, once he emerged from the fog bank, he
did not “instantaneous[ly]” collide with the Secord Tanker. Id. at 74. He stated the
following:
I looked to the left to try to go into the median, for some reason
no way to go that way. I don’t know why at the time, I can’t
remember. So at this point I tried to veer to the right to try to not
hit the tanker truck, and all I remember after that is slamming
into it.
Id. He further affirmed that he “perceieve[d] the tanker truck in front of [him] * *
*” and said that he “freak[ed] out for seeing that in front of [him].” Id. at 75. He
then explained:
I panicked seeing that in front of me. I looked to the left and for
some reason I couldn’t go to the left, so I tried to go to the right
lane, and I ended up hitting the tanker truck before that could
happen.
Id. at 75-76.
{¶21} This testimony indicates (1) that Williams could not see the Secord
Tanker ahead of him at the time that he was driving into the fog bank; (2) that
Williams interpreted the waving pedestrian at the side of the road as a warning to
stop or slow down; (3) that Williams saw the scene of the accidents and the Secord
Tanker ahead of him in his direct line of travel when he emerged from the fog bank;
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and (4) that Williams applied his brakes, looked for a way to avoid a collision, and
took evasive action in response to seeing the Secord Tanker ahead of him. Williams
Deposition, 40, 48-49, 74-75. These facts are based on Williams’s testimony and
are not in dispute.
{¶22} We will consider the significance of these facts by applying the
analytical framework set forth in The Ohio Jury Instructions for the ACDA rule in
R.C. 4511.21(A). These instructions are a succinct summation of an extensive body
of caselaw applying R.C. 4511.21(A) and read, in their relevant part, as follows:
4. ASSURED CLEAR DISTANCE AHEAD. ‘Assured clear
distance ahead’ means the distance between the vehicle the
defendant is operating and a reasonably discernible object in
his/her path of travel. This distance constantly changes and is
measured at any moment considering the (limit of his/her vision)
(range of his/her headlights).
5. DISCERNABLE OBJECT. ‘A discernible object’ is a
reasonably visible object. An object is discernible when it is
visible or can be detected or perceived.
6. OBSTRUCTION OF VIEW (ADDITIONAL). Where there is
(a curve) (a hill) (fog) (rain) (specify other obstruction of view or
vision) that is (in) (on) the highway, the assured clear distance is
that distance between the defendant and the point where his/her
vision ends or is cut off. In that event, the defendant must drive
at such a speed that he/she can stop within the distance between
him/her and the point where his/her vision ends.
(Emphasis added.) Ohio Jury Instructions, CV Section 411.19 (Rev. Dec. 6, 2014).
{¶23} Williams’s testimony indicates that he was aware of the nature and
existence of the fog on the roadway on the morning of the accident. Williams
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Deposition, 35-36. He stated that he had encountered patches of fog on the morning
of the accident as he was driving and that he had noticed that the fog was getting
“patchier and thicker” as he travelled. Id. at 35-36. Even though he had observed
that the fog was getting thicker as he drove, Williams still drove into a fog bank
without being able to see what was beyond the fog bank. Id. at 35-36, 74. See State
v. Klein, 11th Dist. Portage No. 95-P-0053, 1998 WL 156868, *5 (March 17, 1988).
{¶24} Williams’s testimony indicates that the fog ahead of him did obstruct
his view of the roadway ahead of him such that he could not see the Secord Tanker
before he drove into the fog bank. Williams Deposition, 74. The presence of this
fog bank does not excuse him from failing to maintain an ACDA of his vehicle.
Roszman, supra, at 258. As he approached the fog bank, Williams had to travel at
a pace that gave him the ability to stop by the point where the fog ended his view of
the roadway because this is the point at which his ACDA ended. See R.C.
4511.21(A); Schroff v. Foley Const. Co., 87 Ohio App. 277, 286, 94 N.E.2d 641,
646 (1st Dist. 1950).
{¶25} Williams testified that he had “no visibility” and “couldn’t see in front
of [him] * * *” for a “split second” because of the fog bank. Williams Deposition,
40, 48-49. If he had maintained an ACDA of his vehicle at the time when the fog
in front of him was limiting his visibility of the roadway, he would have had an
ACDA ahead of his vehicle when he emerged from the fog bank and his visibility
increased. However, Williams did not have an ACDA of his vehicle when he
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emerged from the fog bank because he was not able to stop before he struck the
Secord Tanker. Thus, his failure to guarantee himself an ACDA in which he could
stop resulted in a collision with the Secord Tanker.
{¶26} Further, Williams testified that he saw a pedestrian standing at the side
of the road waving their hands before he drove into the fog bank. Williams
Deposition, 40, 48-49. Williams affirmed that this waving pedestrian was “the first
warning that [he] had that there was a problem up ahead * * *[.]” Id. at 71. When
asked whether he believed that this pedestrian was “trying to cause [him] to slow
down,” Williams responded, “Yes, to either slow down or stop.” Id. at 73. In
response to seeing this pedestrian, Williams applied his brakes but did not “slam on
them” and then continued to drive into the fog bank. Id. at 46.
{¶27} Williams’s testimony indicates that he clearly discerned the presence
of this pedestrian at the side of the road and interpreted this person’s gestures as a
signal for him “to stop or slow down” his vehicle. Id. at 48. His statements indicate
that he had an advance warning that there was a hazard on the roadway ahead of
him before he entered the fog bank and before he saw the Secord Tanker. See
Cleveland Elec. Illum. Co. v. Major Waste Disposal, 2016-Ohio-7442, 74 N.E.3d
689, ¶ 26 (11th Dist.) (considering the absence of a warning in an ACDA case). See
also Shooter v. Perella, 6th Dist. Lucas No. L-07-1066, 2007-Ohio-6122, ¶ 22.
However, even with this advance warning, Williams was still driving too fast to stop
his vehicle before he struck the Secord Tanker. Williams Deposition, 48-49.
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{¶28} Williams’s testimony also indicates that the Secord Tanker was not in
the fog bank but was situated beyond the fog bank. Williams Deposition, 40. Once
the fog “disappeared” and he emerged from the fog bank, Williams was able to see
the Secord Tanker ahead of him in his direct line of travel before he struck it. Id. at
40, 49, 75. His testimony indicates that he was able to recognize the object ahead
of him as a truck. Id. at 40, 48-49. He further confirmed that the “chaos” he
described seeing once he emerged from the fog bank was the “other vehicles” in the
roadway. Id. at 126.
{¶29} Williams was not only able to see the Secord Tanker but was able to
respond to its presence. Williams Deposition, 40, 48-49. He testified that, after he
saw the Secord Tanker, he applied his “brake down to stop”; “tried to stop”;
“[l]ooked for a way out”; determined he could not turn to the left; and took evasive
action by trying to steer his vehicle to the right of the Secord Tanker. Williams
Deposition, 40, 48-49, 74-75. He would not have responded in this manner if he
had not been able to discern the presence of the Secord Tanker directly ahead of him
in his line of travel. See Shinaver v. Szymanski, 14 Ohio St.3d 51, 54, 471 N.E.2d
477, 481 (1984) (holding that a “tractor-trailer * * * was ‘reasonably discernible’ *
* * since [the driver] testified that he actually saw it before he applied his brakes.”).
{¶30} The facts that Williams saw the Secord Tanker and that Williams
responded to its presence establish that he was able to discern the Secord Tanker
ahead of him in his direct line of travel. Thus, Williams’s own testimony establishes
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that the Secord Tanker was a reasonably discernible object ahead of him in his direct
line of travel. Grout v. Joseph, 2d Dist. Clark 2000 WL 1513930, *4 (Oct. 13, 2000)
(holding that the object struck was reasonably discernible because the driver saw
and recognized before colliding with it). See also Patrick v. Ward, 18 Ohio App.2d
270, 274, 248 N.E.2d 637, 640 (3d Dist. 1969). The fact that Williams’s testimony
indicates that he did not see the Secord Tanker before he drove into the fog bank
does not change this analysis because Williams had to drive at a speed that enabled
him to stop by the point at which his vision ended in order to maintain an ACDA
and because the waving pedestrian gave Williams an advance warning of the
hazards on the roadway ahead of him. Williams Deposition, 40, 48-49, 74.
{¶31} In this case, the jury does not need to consider whether the Secord
Tanker was a reasonably discernible object that Williams could or should have
discerned ahead of him in his direct line of travel because he did discern the Secord
Tanker.3 See Micelli v. Hirsch, 83 N.E.2d 240, 242 (8th Dist. 1948) (holding a
discernible object is “an object which [the driver] should and could have seen if he
was operating his motor vehicle in the manner required by law.”). Further, there is
no conflicting evidence that suggests that Williams was not able to discern the
3
Under Smiddy, a “truck stopped on a highway in a driver’s path during daylight hours is, in the absence of
extraordinary weather conditions, a reasonably discernible object as a matter of law.” Smiddy, supra, at 40.
However, in the case before this Court, we need not ultimately decide that the Secord Tanker was a reasonably
discernible object as a matter of law because there is no issue of fact as to whether the Secord Tanker was
reasonably discernible to Williams.
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presence of the Secord Tanker ahead of him before he collided with it.4 Doc. 139,
Ex. B. See Tomlinson v. City of Cincinnati, 4 Ohio St.3d 66, 69, 446 N.E.2d 454,
456 (1983) (holding that a jury question is created based on the introduction of
conflicting evidence regarding one of the elements of the ACDA test.). Based on
Williams’s testimony, there is no genuine issue of material fact for the jury to
consider as to whether the Secord Tanker was a reasonably discernible object. See
Grout supra, at *6; Shooter, supra, at ¶ 27; Kaip v. Estate of Smith, 6th Dist. Erie
No. E-05-037, 2006-Ohio-323, ¶ 13;
{¶32} The dissent does not take issue with the facts that form the basis of our
analysis but would apply a different analytical framework to these facts. Dissent,
infra, at ¶ 141. In our opinion, we have applied the analytical framework for the
ACDA rule consistently to Williams’s actions before and after he encountered the
fog bank. The dissent would not apply the ACDA analytical framework to
Williams’s actions before he entered the fog bank and would apply a variation of
the ACDA analytical framework to his actions after he emerged from the fog bank.
Dissent, infra, ¶ 141-147. Thus, the dissent’s primary disagreement with our
4
In Williams’s response to the motions for summary judgment, he does not identify any evidence that
conflicts with his testimony (1) that he was able to see the Secord Tanker before he struck it or (2) that he
was able to react to the presence of the Secord Tanker by braking and steering his vehicle to the right. We
note that Williams attached an affidavit from the front seat passenger of his Pickup, Albert Schmucker
(“Schmucker”), to his response to the motions for summary judgment. Doc. 139, Ex. B. In this affidavit,
Schmucker stated that he saw someone on the side of the road “waving his arms in a manner that indicated
to me that traffic should slow down.” Doc. 139, Ex. B. He also stated that he saw “a tanker truck stopped in
our lane of traffic” when they emerged from the fog. Doc. 139, Ex. B. He also stated that Williams
“attempted to veer right” before striking the Secord Tanker. Doc. 139, Ex. B. These statements do not
identify a genuine issue of material fact because these statements are consistent with Williams’s testimony
as to the discernibility of the Secord Tanker. Doc. 139, Ex. B. Williams Deposition, 40, 48-49, 75-76, 126.
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opinion appears to be over how the presence of the fog bank, as an obstruction,
should affect the legal analysis of the facts established by Williams’s testimony.
We will examine both halves of the dissent’s analytical framework in turn.
{¶33} Regarding Williams’s testimony as to what happened before he drove
into the fog bank, the dissent would apply an analytical framework based on the
reasonable speed rule instead of the analytical framework provided by The Ohio
Jury Instructions for the ACDA rule in R.C. 4511.21(A). Ohio Jury Instructions,
CV Section 411.19 (Rev. Dec. 6, 2014). Dissent, infra, at ¶ 140. The dissent
correctly notes that R.C. 4511.21(A) contains two clauses:
(A) [1-The Reasonable Speed Rule:] No person shall operate a motor
vehicle * * * at a speed greater or less than is reasonable or proper,
having due regard to the traffic, surface, and width of the street or
highway and any other conditions, and [2-The Assured Clear Distance
Rule:] no person shall drive any motor vehicle * * * in and upon any
street or highway at a greater speed than will permit the person to bring
it to a stop within the assured clear distance ahead.
R.C. 4511.21(A). According to the dissent, Williams failed to maintain an ACDA
of his vehicle but did not violate the ACDA rule. Dissent, infra, at ¶ 117. Rather,
the dissent contends that Williams’s actions before he entered the fog bank only
violated the reasonable speed rule. Dissent, infra, at ¶ 141.
{¶34} The dissent would apparently hold that the failure to drive at a speed
that considers “bends[,] * * * twists in the highway, crests in the road, dim lights,
fog, sleet, rain, or blinding lights of approaching motor vehicles * * *” constitutes a
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violation of the reasonable speed rule. Dissent, infra, at ¶ 141, quoting Roszman,
supra, at 258. However, this Court has previously held that “[n]either bends nor
twists in the highway, crests in the road, dim lights, fog, sleet, rain, or blinding lights
of approaching motor vehicles will excuse [a driver] from the duty to drive so that
he can stop his vehicle within that assured clear distance ahead.” (Emphasis
added.) Roszman, supra, at 258, quoting 6A Ohio Jurisprudence 2d 377, Section
355. Further, the dissent’s view is not only inconsistent with our prior case law but
is also in conflict with the logic of the ACDA rule.
{¶35} In order to comply with the ACDA rule, a driver must maintain an
assured clear distance ahead of his vehicle within which she is able to stop. R.C.
4511.21(A). If a condition—such as fog or a curve in the highway—obstructs a
driver’s view of the roadway ahead, then the ACDA of that vehicle ends where that
condition limits the driver’s visibility. See Daniels v. Williams, 2d Dist.
Montgomery No. 96-CA-146, 1997 WL 369325, *1-2 (July 3, 1997); Grout, supra,
at *4-5. Thus, drivers must travel at a speed that enables them to stop by the point
at which their vision is ended by a condition that obstructs their view. Woods, supra,
at 387, quoting Smiley v. Arrow Spring Bed Co., 138 Ohio St. 81, 89, 33 N.E.2d 3,
7 (1941) (holding that a driver “may * * * assume nothing that is not assured to him
by the range of his vision.” See also Ohio Jury Instructions, CV Section 411.19
(Rev. Dec. 6, 2014).
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{¶36} If a condition completely obstructs a driver’s view of the roadway
ahead, then a driver would have to stop in order to maintain an ACDA of his vehicle.
Woods, supra, at 390-391. Parnell, supra, at 129, quoting 6 Ohio Jurisprudence
(2d), 473, Section 240. A person who drives blindly is not assuring himself a clear
distance ahead of his vehicle. Thus, the fact that a condition obstructs a driver’s
view of the roadway ahead does not suspend the applicability of the ACDA rule in
R.C. 4511.21(A). See Roszman, supra, at paragraph two of the syllabus. Rather,
conditions that obstruct a driver’s view of the roadway are valid considerations in
an ACDA analysis because the speed that is necessary to maintain an ACDA varies
based upon the presence or absence of such conditions on the roadway.5 Id. See
also Blackford v. Kaplan, 135 Ohio St. 268, 272, 20 N.E.2d 522, 525 (1939)
(holding that drivers must proceed “at such a speed that he could stop within the
assured clear distance ahead considering the fog.”).
5
The Ohio Jury Instructions for the reasonable speed rule in R.C. 4511.21(A) include considerations that
overlap with those included in the Ohio Jury Instructions for the ACDA rule:
5. FACTORS AND CONSIDERATIONS. In deciding whether the speed of the driver
was reasonable or proper, you must consider the permanent physical features of the
scene, the hour of day or night, the extent of other traffic, the width and nature of the
roadway, and any other conditions existing at that time of the accident.
6. OBSTRUCTED VISION (ADDITIONAL). If a driver’s vision is completely
obscured, it is his/her duty in the exercise of ordinary care to slow down or stop, if
necessary, until his/her vision is at least in part restored.
Ohio Jury Instructions, CV Section 411.17 (Rev. Dec. 6, 2014). These considerations for the reasonable
speed rule and the ACDA rule necessarily overlap because these two rules are not mutually exclusive. An
ACDA rule violation arguably involves a reasonable speed rule violation because a driver is not, as a general
matter, proceeding at a reasonable speed if he or she is proceeding at a pace that is too fast to maintain an
ACDA of his or her vehicle. Thus, the dissent’s assertion that Williams violated the reasonable speed rule
need not mean that Williams did not violate the ACDA rule.
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{¶37} Ohio courts have interpreted the ACDA rule in this manner and have
relied on this logic in applying this statutory provision:
[Ohio’s ACDA rule] forbids any speed which will not permit the
driver to stop his car within the assured clear distance ahead.
That distance, by reason of darkness, fog, or other natural
conditions may be nothing, in which case the speed must be
nothing. If [a] driver cannot see that which is in his path, there is
no assured clear distance ahead. There is essentially no difference
in principle between the diminution of such assured clear distance
by a bend in the road, the brow of a hill, blinding lights, darkness
or a fog. Either the driver can see where he is going or he cannot.
* * * Inability to see what lies ahead, whether it be in the case of
an individual or the driver of a motor vehicle, requires that the
movement forward shall be appropriately decreased if necessary
to a stop.
Schroff, supra, at 286. See also Woods, supra, at 387; Parnell, supra, at 129;
Purcell, supra, at ¶ 19; Pleimann, supra, at ¶ 17.
{¶38} Thus, the fact that the fog bank obstructed Williams’s view of the
roadway ahead of him does not render the ACDA rule inapplicable to the facts of
this case. Williams needed to drive at a speed that maintained an assured clear
distance between his vehicle and the point at which his vision ended on the roadway
ahead of him. Williams was driving too fast to maintain an ACDA of his vehicle
because, as the dissent notes, he emerged from the fog bank unable to stop before
he struck the Secord Tanker. Dissent, infra, at ¶ 117.
{¶39} In this case, however, summary judgment is ultimately appropriate
because Williams failed to maintain an ACDA before he entered the fog and then
struck a reasonably discernible object after he emerged from the fog. We
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determined that the Secord Tanker was a reasonably discernible object because
Williams saw and responded to its presence after he emerged from the fog bank but
before he collided with it. The dissent disagrees with this conclusion because it
would have the following rule govern this analysis: “R.C. 4511.21(A) does not
apply “unless the object struck was discernible for ‘a time sufficient to allow the
driver to avoid it with the exercise of reasonable care.’” Venegoni v. Johnson, 10th
Dist. Franklin No. 01AP-1284, 2002 WL 655279, *5 (April 23, 2002). See Dissent,
infra, at ¶ 145.
{¶40} However, this particular rule is properly applied to analyze the
reasonable discernibility of an object where there is some evidence that it suddenly
appeared in a driver’s line of travel. Lancaster v. Selmeyer, 1st Dist. Hamilton No.
C-820571, 1983 WL 8840, *3 (May 18, 1983); Smith v. Torbett, 142 N.E.2d 868,
873 (2d Dist. 1956); Anessi v. Bernhard, 2d Dist. Greene No. 84-CA-5, 1985 WL
7629, *4 (Jan. 30, 1985); Franklin v. Reed, 8th Dist. Cuyahoga No. 69800, 1996
WL 476468, *2 (Aug. 22, 1996); Gall v. Konzelman, 9th Dist. Lorain No.
96CA006481, 1997 WL 164310, *2 (Apr. 2, 1997); Self v. Keeney Trucking, Inc.,
11th Dist. Lake No. 95-L-027, 1995 WL 815361, *4 (Dec. 29, 1995).
{¶41} Under the sudden appearance prong of the ACDA test,
the assured-clear-distance-ahead rule has no application in a
situation where a person, motor vehicle or object suddenly enters
the path of another motor vehicle from the side, unless such
person, motor vehicle or object comes into the view of the
operator of the other motor vehicle at a point sufficiently distant
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ahead to enable such operator, in the exercise of ordinary care, to
stop his vehicle and avoid a collision.
Sherer v. Smith, 155 Ohio St. 567, 570, 99 N.E.2d 763, 765 (1951), citing Erdman,
supra. See Roszman, supra, at paragraph three of the syllabus (holding that “[a]
sudden emergency can cut down or lessen the assured clear distance ahead, but only
if the obstruction is placed in the lane of travel so shortly prior to the moment of
collision as to give no interval reasonably sufficient to adapt speed to the new
situation.”).6
{¶42} Thus, the sudden appearance prong prevents the application of R.C.
4511.21(A) to a situation in which an object, which was not stationary or moving
forward ahead of the driver in his or her line of travel, suddenly enters the driver’s
line of travel from the side “within the [driver’s] assured clear distance ahead.”
(Emphasis sic.) Woods, supra, at 388. See also McFadden, supra, at 436. In other
words, the driver had an ACDA of his vehicle, but this ACDA was “cut down or
lessened” by the sudden intrusion of a peripheral object into the driver’s line of
travel. Mitchell v. Kuchar, 8th Dist. Cuyahoga No. 85363, 2005-Ohio-3717, ¶ 20,
quoting Venegoni at *2.
6
The language of this rule cited by the dissent has varied in cases with some courts inquiring into whether
the driver had “sufficient distance” or a “sufficient interval” instead of “sufficient time” to avoid a reasonably
discernibly object in his or her line of travel after it came into view. Sherer, supra, at 570; Roszman, supra,
at paragraph three of the syllabus. This variation in wording does not change the substance of the rule as
distance and time are essentially parallel considerations in the process of applying a speed statute.
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{¶43} When a peripheral object intrudes into a driver’s direct line of travel
within his or her ACDA, the driver may not, in the exercise of reasonable care, have
had the opportunity to adjust his or her speed to the presence of this object and
maintain an assured clear distance between his or her vehicle and this peripheral
object. Thus, the ACDA rule operates in such a situation only when the peripheral
object was “a discernible object in the front and within the directional line of [the
driver’s] travel for a time sufficient to allow [the driver] to avoid the accident with
reasonable care.” Schade v. Carnegie Body Co., 70 Ohio St.2d 207, 210, 436 N.E.2d
1001, 1003 (1982) (applying this rule where there was some evidence that a
pedestrian “may have altered her path on the berm so as to briefly place a portion of
her body on the highway at the instant she was struck.”).
{¶44} In this case, the Secord Tanker was not a peripheral object that
intruded from the side into William’s direct line of travel. The testimony in the
record indicates that the Secord Tanker was a stationary object in the roadway ahead
of Williams in his direct line of travel. Williams Deposition, 40, 48-49. Gray
Deposition, 48. Since the Secord Tanker did not suddenly appear on the roadway
ahead of Williams, we need not consider whether Williams had sufficient time to
regain an ACDA with the Secord Tanker after he saw it. Williams did not strike the
Secord Tanker because it cut into or lessened his ACDA but because he was driving
too fast to maintain an ACDA of his vehicle. Daniels, supra, at *2. If Williams had
guaranteed himself an ACDA of his vehicle prior to entering the fog bank, he would
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not have collided with the reasonably discernible Secord Tanker after he emerged
from the fog bank. See Daniels, supra, at *2; Grout, supra, at *5.
{¶45} We also note that the dissent would herein apply a rule that inquires
into whether Williams had “sufficient time” to stop after he discerned the Secord
Tanker but also argues that speed is not to be considered as part of an ACDA
analysis. Dissent, infra, ¶ 117, 120, 123. The dissent correctly notes that speed is
not expressly listed as an element of the Ohio Supreme Court’s ACDA test. Dissent,
infra, at ¶ 117. However, the time that a driver has to avoid a collision is directly
tied to the speed at which a driver is travelling. How could the rule cited by the
dissent, which requires an analysis as to whether an object was reasonably
discernible for a sufficient time, be applied without consideration of the speed that
the driver was travelling? See McFadden, supra, at 442. See also Woods at 390-
391, quoting Snouffer at 549; Shooter, supra, at ¶ 13 (holding that R.C. 4511.21 is
a “speed statute” and that the issue, under this statute, is whether the driver “operated
[his or] her vehicle at a speed greater than was reasonable and proper so that [he or]
she could not stop within the assured clear distance ahead.”).
{¶46} We turn now to the arguments that Williams raises on appeal. His first
argument is that the vehicle he struck was not reasonably discernible to him as he
drove because there was heavy fog around the scene of the accidents that morning.
There is no dispute that there was heavy fog at the scene of the accidents on the
morning of February 5, 2013. All of the witnesses who were present at the time of
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the accidents similarly described the fog that morning as “thick,” “dense,” “spotty,”
and “patchy.” Black Deposition, 10. Van Deilen Deposition, 24. Janssens
Deposition, 63. Pursley Deposition, 52. Anderson Deposition, 45. Cusick
Deposition, 11. Williams Deposition, 36.
{¶47} However, in Woods v. Brown’s Bakery, the Supreme Court of Ohio
applied R.C. 4511.21(A) to a situation in which a driver was travelling through
“pockets of heavy fog” and collided with another vehicle. Woods, supra, at 384.
Quoting an “analogous case involving fog conditions,” the Supreme Court stated:
Fog is fog and its obscurative qualities are known to all
individuals who possess even the slight amount of intelligence
legally required to qualify one to drive an automobile on the
public highways. When plaintiff drove his car into a fog bank
which hid a truck from his view, he simply spurned prudence and
relied on chance. That chance failed him is his misfortune * * *.
Id., quoting Notarianni v. Ross, 384 Pa. 63, 66, 119 A.2d 792, 793 (1956). See
Roszman, supra, at 258; Purcell, supra, at ¶ 19. “If a person driving in a fog can
only see 30 feet he must drive so that he can stop within 30 feet.” Woods, supra, at
390-391, quoting Snouffer v. Potter Lumber & Supply Co., 77 Ohio App. 546, 549,
64 N.E.2d 77, 79 (2d Dist. 1945). Thus, the presence of heavy fog does not, by
itself, excuse a driver’s failure to maintain an ACDA. Id.{¶48} Further, the presence of fog, by itself, also does not necessarily create
a question of fact for the jury to decide as to whether the object a driver struck was
reasonably discernible. See Kaip, supra, at ¶ 13. The dissent cites a number of
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cases to argue that a jury question exists as to whether an object in fog or
extraordinary weather conditions was reasonably discernible. Dissent, infra, ¶ 144.
However, in these cases the driver either did not discern the object before colliding
with it or died in the collision, leaving what the driver did or did not discern before
the collision unknowable. Sabo, supra, at 71 (the driver did not see a tractor-trailer);
Junge v. Brothers, 16 Ohio St.3d 1, 2, 475 N.E.2d 477, 479 (the driver died in the
collision); Sharp v. Norfolk & Western Ry. Co., 36 Ohio St.3d 172, 173, 522 N.E.2d
528, 529 (1988) (the driver died in the collision). See Smiddy, supra, at 217-218.
Thus, in these cases, there was a jury question as to whether the object struck was a
reasonably discernible object that the driver could or should have discerned.
{¶49} Another case that the dissent mentions that is worth considering at this
juncture is Blair v. Golf-Kirby Co., supra. In this case, Blair turned into a lane of
traffic and “was unable to stop before he drove into an unlighted, and otherwise
unmarked, hole where a twelve-foot long, sixfoot wide, three-foot deep section of
the highway had been removed.” Id. at 6. The Supreme Court found that the
discernibility of this hole presented a question of fact for the jury to decide because
Blair “did not see the hole until he was practically in it.” Id. at 11. The Supreme
Court determined that reasonable persons could find “that the regularity and size of
the hole might make it less * * * discernible” or “they could * * * [find] that ‘[t]he
fact that an entire section of the highway had been removed is precisely why [Blair]
could not discern the hole.’” Id.
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{¶50} In Blair, the Supreme Court determined that the properties of the hole
itself created a question of fact as to whether the hole was reasonably discernible.
Blair at 11. Under the reasonably discernible prong of the ACDA test, courts have
considered whether the “nature of the object” struck prevented it from being
reasonably discernible. McFadden, supra, at 435. See DiFederico v. Reed, 21 Ohio
App.2d 137, 414-143 255 N.E.2d 869, 873-874 (10th Dist. 1969). See also Sobery
v. Greyhound Lines, Inc., 2019-Ohio-1371, 135 N.E.3d 343, ¶ 64 (8th Dist.)
(holding under Pennsylvania’s ACDA law that an object is not discernible if it is
“deceptive in appearance or camouflaged * * *.”), quoting Unangst v. Whitehouse,
235 Pa.Super. 458, 463-464, 344 A.2d 695.
{¶51} However, in the case before this Court, Williams notably does not
identify any specific properties of the Secord Tanker itself that prevented it from
being reasonably discernible. Rather, Williams argues that the foggy condition
surrounding the Secord Tanker prevented it from being reasonably discernible. The
Secord Tanker was itself a reasonably discernible object behind an obstructive
condition—the fog. As we have already discussed, Williams discerned the fog on
the roadway and, in order to maintain an ACDA, had to account for the presence of
this obstructive condition on the roadway as he set his speed.
{¶52} Second, Williams argues that the fog was “patchy” that morning and
that he could not determine the density of the fog bank behind the waving pedestrian
before he drove into it. Williams Deposition, 36, 73-74. Williams testified that he
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went in and out of patches of fog before he reached the fog bank as he was driving
on the morning of the accident. Id. He stated that the fog “got patchier and thicker”
as he drove until he reached a fog bank, which was located just before the scene of
the accidents. Id. at 36, 68, 85, 38.
{¶53} He testified that this fog bank was the “thickest part of the fog” that he
had encountered. Id. He described passing through this fog bank as follows: “You
couldn’t see in front of you, and it was only for a split second that it lasted.” Id. 46-
47. During his deposition, Williams was asked about his visibility at the time that
the pedestrian was waving at the side of the road. Williams Deposition, 72. He
stated that “[i]t was like a patch of fog, just went in and did nothing. At the time
that he started waving, that’s how bad it got.” Id. at 72. He was also asked if he
could tell how dense the fog in the fog bank was before he entered it. Id. at 73. He
replied, “[n]ot until after [the pedestrian] waved his hands and I went into it.” Id. at
74. Williams affirmed that he “couldn’t see what’s behind [the pedestrian], couldn’t
see any other vehicles behind him.” Id. at 74.
{¶54} However, this testimony indicates that Williams, as he was driving,
could see that a patch of fog was ahead of him and that he could not easily see
beyond or through that fog bank from a distance. Williams Deposition, 72. We
again note that, before he entered the fog bank, Williams had a clear warning to
“slow down or stop” from the waving pedestrian. In addition to perceiving the fog
bank ahead of him, Williams also saw this clear “warning” to “slow down or stop.”
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Id. at 71, 74. Thus, Williams’s testimony indicates that he saw a fog bank ahead of
him that he could not readily see through in conjunction with seeing a pedestrian
waving their hands at the side of the road as a warning.
{¶55} Further, Williams describes a momentary “white-out” condition in
which he “couldn’t see” for a “split second.” Williams Deposition, 46-47. In State
v. Klein, the Eleventh District considered a similar situation in which a driver was
proceeding through a snowstorm and struck another vehicle in what was described
as a brief “white-out condition.” Klein, supra, at *1. The Eleventh District found
the following:
Although the ‘white-out’ that obscured appellant’s view of the
truck arguably arose quickly, we cannot say that it arose
unexpectedly. * * * [The] appellant conceded that he had
experienced intermittent periods of snow and/or blowing wind
earlier in his journey. Logic would dictate that a reasonable
driver would adjust his speed downward in anticipation of the
possible re-occurrence of snow and/or blowing wind creating a
‘white-out’ which condition, by its very nature, reduces a driver’s
visibility quickly, extensively, and without warning. See Roszman
v. Sammett (1969), 20 Ohio App.2d 255, 257-258, 254 N.E.2d 51.
Thus, in our view, it was not adequate that appellant travel at a
speed sufficiently safe for the periodic clear conditions, as was the
situation when he passed the safety plaza. Instead, appellant had
an obligation to drive at a speed at which he would have been able
to have maintained his ability to stop during the intermittent,
inclement weather conditions.
(Emphasis sic.) Id. at *5. Thus, when a driver is aware that the weather is such that
a whiteout condition could arise suddenly, that driver needs to travel at a speed that
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enables him to maintain an ACDA in the event that a whiteout condition arises
suddenly. Id.
{¶56} In the case before this Court, Williams had been driving through
patches of fog with varying degrees of density as he was travelling on the morning
of the accident. Williams Deposition, 36. He also stated that the fog was “getting
* * * thicker” as he proceeded eastbound. Klein at 35. Thus, his testimony clearly
indicates that he was aware of the nature and existence of the foggy conditions on
the roadway. Id. at 35-36. The presence of the fog delayed Williams’s ability to
perceive the Secord Tanker but did not ultimately prevent him from discerning the
Secord Tanker. Under R.C. 4511.21(A), Williams had a duty to travel at a pace that
accounted for the reduced visibility that came with the presence of the patchy fog
on the roadway that morning.
{¶57} Further, in Kaip v. Estate of Smith, the Sixth District considered a case
in which a driver was travelling through “patchy fog” and struck a vehicle that he
“never saw.” Kaip, supra, at ¶ 13. In that case, a State Highway Patrol Officer
testified as to the conclusions of his investigation of the accident scene. He stated
that the driver was going too fast; that the driver could have seen the vehicle if he
had been going at an appropriate speed; and that the driver did not maintain ACDA.
Id. at ¶ 12. The Sixth District found that “[b]ased on Kaip’s admission that he was
traveling 50 to 55 m.p.h. in foggy conditions, we conclude that there is no genuine
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issue of material fact as to whether or not Kaip failed to maintain an assured clear
distance.” Id. at ¶ 13.
{¶58} In the case before this Court, two law enforcement officers testified
that their investigation concluded that Williams failed to maintain an ACDA and
that this failure caused his collision with the Secord Tanker. Spallinger Deposition,
82-84. Gray Deposition, 48-49. However, unlike in Kaip, Williams actually
discerned the presence of the Secord Tanker and the scene of the accidents ahead of
him. Williams Deposition, 40, 48-49, 126. Further, Williams even engaged in
measures to avoid a collision before he struck the Secord Tanker. Id. For these
reasons, the fact that Williams could not determine precisely how dense the fog was
does not change our analysis. Williams had to factor into his speed the foggy
conditions of the roadway in order to maintain an ACDA of his vehicle. See Woods,
supra, at 384; Klein, supra, at *5; Kaip, supra, at ¶ 13.
{¶59} The dissent asserts that the scene of the accidents may not have been
reasonably discernible because Janssens, who was driving the Secord Tanker,
affirmed that he would consider Messman’s vehicle to be a “hidden hazard” in the
dense fog. Dissent, infra, at ¶ 138, citing Janssens Deposition, 84-85. Janssens
testified that he was able to see Messman’s vehicle for a second after she pulled in
front of him but that he was unable to brake before he collided with her. Janssens
Deposition, 80. However, Janssens continued forward from this point, pushing
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Messman’s vehicle roughly four hundred and fifty feet beyond where he initially
struck her in the intersection. Id.
{¶60} Thus, when Williams was driving through this same area, the Secord
Tanker had come to rest hundreds of feet away from the point that Janssens
described his collision with Messman’s vehicle. See Doc. 68, Ex. D. In contrast to
Janssens, at the time of Williams’s collision, the Secord Tanker was far enough
beyond the fog bank—after the fog “disappeared”—that Williams had time to brake,
“look for a way out,” determine there was not space to steer left, and swerve his
vehicle to the right in response to seeing the Secord Tanker. Williams Deposition,
40, 48-49.
{¶61} The dissent next points to Pursley’s testimony. Pursley, who was
driving the Marten Transport Vehicle, testified that he saw red lights on the shoulder
on the right side of the road and, in response, began to merge into the left lane.
Pursley Deposition, 58-59. He then saw red lights “dead ahead” of him and then
swerved toward the median, striking an object he could not identify on his way off
of the road. Id. He reported driving in between forty-five and fifty miles per hour
in this stretch of highway. Id. at 83.
{¶62} However, at the time and at the speed that Williams was travelling
through this area, he could see and respond to the presence of the Secord Tanker.
Unlike Pursley, Williams’s attention was not divided between red lights on the right
side of the road, red lights ahead of him, and a lane change as he drove on this stretch
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of highway. See Hale v. State Farm Mut. Auto. Ins. Co., 5th Dist. Stark No.
2017CA00223, 2018-Ohio-3035, ¶ 19 (in which the distraction of one vehicle
swerving to avoid another stopped vehicle on the roadway interfered with the
driver’s ability to discern the stopped vehicle ahead). He was looking forward at
the Secord Tanker when he drove through the fog bank.
{¶63} We note, however, that Schleinkofer—who was driving the vehicle
most similarly situated to Williams—stated, in his police report, that he saw the
scene of the accidents, “noticing stopped trucks and people waving the arms
warning us.” Schleinkofer also stated that he had time to “t[ake] * * * action to
avoid the * * * accident by braking and moving left toward [the] median.” Doc. 68,
Ex. D. See Doc. 68 Ex. E. Regardless of the situation before Williams was present,
however, the Secord Tanker was reasonably discernible—according to Williams’s
own testimony—at the time that he drove onto the scene.
{¶64} Third, Williams argues that he was travelling at an “extremely reduced
speed” as he approached the fog bank. Appellant’s Brief, 13. The evidence in the
record indicates that Williams was driving at fifty-five miles per hour within sixty
seconds of crashing into the vehicle in front of him. Doc. 128, Ex. D.7 The speed
7
Williams was sent a set of interrogatories from Secord Farms and Janssens. Doc. 128, Ex. D. One of these
interrogatories read, “What speed were you travelling within 60 seconds prior to impact with the
Pursley/Marten Transport and/or the Secord Tanker including the speed at impact.” Id. In response, Williams
objected to this interrogatory on the grounds that it assumed that he struck either the Marten Transport or
Secord vehicles. Id. He still answered that he “was traveling at 55 mph or possibly slower and was being
passed by other traffic.” Id. However, during his deposition, Williams stated that he was driving between
thirty and sixty miles per hour. Williams Deposition, 68. He also stated that he did not remember what speed
he was going at the time of the accident. Id. at 37. Williams states that reliance on this figure is misplaced
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on the stretch of U.S. Route 24 where the accidents occurred was fifty-five miles
per hour. Doc. 139, Ex. A. Williams further stated that, as he approached patches
of fog on the roadway that morning, he adjusted his speed downward. Williams
Deposition, 69.
{¶65} However, Williams’s duty, under R.C. 4511.21(A) was not simply to
reduce his speed. In this situation, he had a duty to reduce his speed to a level at
which he could maintain an ACDA of his vehicle. The fact that he struck the Secord
Tanker indicates that he, even after reducing his speed, was still driving too fast for
these circumstances. If Williams had been travelling at a speed that maintained an
ACDA, he would have been able to stop after he discerned the presence of the
Secord Tanker but before he collided with the Secord Tanker.
{¶66} Williams submitted an affidavit that indicated that the speed limit on
this road was fifty-five miles per hour. Doc. 139, Ex. A. Jeffery L. Cusick
(“Cusick”), who was driving eastbound in the right lane on the morning of the
accident, stated that, he was driving his GMC Yukon in between forty to forty-five
miles an hour and that he “didn’t feel safe” driving at fifty to fifty-five miles per
hour. Cusick Deposition, 11-12, 26. He testified that he was driving at this slower
pace because of the fog. Id. Driving at this speed, Cusick testified that the Secord
because the vehicle crash data indicates that he was going forty-three miles per hour two and a half seconds
before his air bags deployed. Doc. 139, Ex. A. The testimony that stated he was travelling at fifty-five miles
per hour gave his approximate speed sixty seconds before his collision. Thus, these figures are reconcilable
as they each refer to a different timeframe.
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Tanker was roughly two hundred feet in front of him and that he could not see this
vehicle at that distance once it entered the fog surrounding the scene of the
accidents. Cusick Deposition, 36-37. Cusick further testified that the taillights on
the Secord Tanker, after it had crashed, were visible through the fog at a distance of
one hundred to one hundred and fifty feet. Cusick Deposition, 41-42. However,
this was before the Secord Tanker had stopped moving. Id. at 14.
{¶67} Another deponent in this case, Julie Ann Black (“Black”), who was
driving eastbound on U.S. Route 24, testified that she was driving her car below the
speed limit, travelling at roughly fifty miles per hour. Black Deposition, 12, 67.
Doc. 68, Ex. B. At this speed, she testified that she could see “the silhouette” of the
accidents ahead of her through the fog. Id. at 67. She stated two semis were on the
roadway at that point. Doc. 68, Ex. B, Black Statement.
{¶68} However, as Williams approached the fog bank, he was driving a
pickup truck that was towing a piece of heavy machinery and was still driving faster
than both Black, who was driving a car, and Cusick, who was driving a GMC
Yukon.8 Doc. 128, Ex. D. Black Deposition, 14, 67. Cusick Deposition, 11-12.
As the trial court noted in its judgment entry granting the motions for summary
judgment, both Black and Cusick were safely able to navigate this stretch of the
roadway on the morning of the accident. Doc. 148.
8
We note that Williams’s trailer was equipped with a separate set of brakes. Williams Deposition, 31.
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{¶69} The dissent would offer the testimony of Cusick and Black regarding
the visibility of the Secord Tanker through the fog as conflicting evidence as to the
discernibility of the Secord Tanker. Dissent, infra, at ¶ 30-31. However, as we have
already noted, the fact that Williams did not, at the pace that he was driving, readily
see the Secord Tanker before he entered the fog bank does not mean that the Secord
Tanker was not ultimately a reasonably discernible object. On this stretch of
highway, Williams had to maintain an ACDA with the limits of his vision
irrespective of the location of the Secord Tanker in the lane ahead of him. Further,
Cusick and Black’s testimony does not conflict with or put into dispute the facts that
Williams was able to see and to respond to the presence of the Secord Tanker once
he passed through the fog bank.
{¶70} Fourth, Williams argues that he took reasonable precautions to avoid
danger as he further reduced his speed after he saw a pedestrian waving his hands
at the side of the road. In his deposition, Williams testified that, as he drove, he saw
a person standing in front of the fog bank at the side of the road. Williams
Deposition, 46. This person was waving “their hands like this to stop or slow
down.” Id. at 40. In response, Williams said that he “applied the brake
instantaneously, didn’t slam on them, but [he] applied the brake * * *” and then
drove into the fog bank ahead of him. Id. at 46-47. Williams affirmed in his
deposition that this pedestrian was “the first warning that [he] had that there was a
problem up ahead * * *.” Id. at 71.
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{¶71} According to his testimony, Williams had advance notice that there
was a dangerous condition ahead. Williams Deposition, 85. His testimony indicates
that he interpreted this person’s gestures as signal “to stop or slow down * * *.” Id.
at 40. In response to what he interpreted to be a warning, Williams began to apply
his brakes. Id. While the scene of the accidents was still behind the fog, the
pedestrian warning drivers of the dangerous condition ahead was clearly visible to
Williams. Even with this advance warning, however, Williams, as he entered a fog
bank that reduced his visibility, simply did not reduce his speed commensurate to
his loss of visibility such that he could stop before he struck the Secord Tanker.
{¶72} Further, Williams points to an affidavit he filed with the trial court that
contained the results of an examination of his Pickup’s vehicle crash system to argue
that he responded to the pedestrian’s advance warning by slowing down his vehicle.
Doc. 139, Ex. A. Robert D. Wilcox (“Wilcox”) conducted this examination. Doc.
139, Ex. A. Wilcox’s report indicated that Williams was driving forty-three miles
per hour two and a half seconds before his airbag deployed and twenty-six miles per
hour one-half second before his airbag deployed. Doc. 139, Ex. A. Wilcox
concluded that “Williams was slowing. * * * He [was] on his brakes. The engine
break was also slowing the GMC. Mr. Williams had slowed to 26 MPH or 29 MPH
under the posted speed limit at -0.5 seconds” before the airbag deployed. Doc. 139,
Ex. A.
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{¶73} However, the data from this examination also indicates that Williams
was not applying his brakes in a manner that consistently reduced his speed. The
following is the readout of Williams’s speed as he approached the fog bank:
2.5 Seconds from Impact: 43 MPH
2.0 Seconds from Impact: 32 MPH
1.5 Seconds from Impact: 36 MPH
1.0 Seconds from Impact: 31 MPH
0.5 Seconds from Impact: 26 MPH
Doc. 139, Ex. A. While the pace of Williams’s Pickup did slow from forty-three
miles per hour to twenty-six miles per hour, his speed increased momentarily from
thirty-two miles per hour to thirty-six miles per hour. Doc. 139, Ex. A.
{¶74} Thus, this report indicates that Williams was not braking sufficiently
to reduce his speed consistently as he entered the fog bank. Williams testified that,
when he entered the fog before the scene of the accident, his visibility was extremely
reduced. Id. at 46-47. “You couldn’t see in front of you, and it was only for a split
second that it lasted.” Id. 46-47. He then saw the scene of the accidents “and that’s
when I put the brake down to stop.” Id. at 47. Thus, even though he had advanced
warning of a dangerous condition ahead and faced extremely restricted visibility, he
still did not brake sufficiently to consistently reduce the speed of his vehicle let
alone reduce his speed sufficiently to maintain an ACDA of his vehicle. Ultimately,
the fact that Williams reduced his overall speed before he entered the fog bank does
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not change our reasonable discernibility analysis because he still discerned the
presence of the Secord Tanker before he struck it.
{¶75} Fifth, Williams asserts that the vehicles in front of him were not
reasonably discernible because the scene of the accidents “appeared suddenly.”
Appellant’s Brief, 10. This argument seems to implicate another prong of the Pond
test. In Pond, the Supreme Court of Ohio stated that, in order to establish a violation
of R.C. 4511.21(A), there must be evidence that the object the driver struck “did not
suddenly appear in the driver’s path.” Pond, supra, at 52.
{¶76} To argue that the scene of the accidents appeared suddenly, Williams
cites Ziegler v. Wendel Poultry Serv., Inc. to argue that a jury question exists in this
appeal as to whether the scene of the accidents “appeared suddenly.” Ziegler, supra,
at 13. In Ziegler, June Scott (“Scott”) stopped at an intersection in dense fog before
turning left onto U.S. Route 30. Ziegler at 10-11. Terry Hummel (“Hummel”) was
driving straight on U.S. Route 30 at the time that Scott turned onto this road and,
unable to stop in time, struck Scott’s vehicle. Id. The Supreme Court of Ohio found
that a jury question existed in that case because
[e]vidence was presented from which the jury could reasonably
conclude that Scott’s bus suddenly appeared in Hummel’s lane of
travel within Hummel’s assured clear distance ahead and rendered
him unable, in the exercise of ordinary care, to avoid a collision.
(Emphasis added.) Id. at 13. Since Scott’s vehicle was a peripheral object that
intruded into Hummel’s direct line of travel, there were, under the facts of that case,
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questions as to whether this object “suddenly appeared” within Hummel’s ACDA.
Id.
{¶77} In Ziegler, the question was whether a peripheral object entered the
roadway within the driver’s ACDA. Id. at 13. Ziegler is distinguishable from the
appeal before this Court as there is no evidence in the record that Schleinkofer’s
vehicle was a peripheral object that suddenly intruded into Williams line of travel
within his ACDA. See Shinaver, supra, at 54. In his response to the motions for
summary judgment, Williams did not raise any arguments regarding Schleinkofer’s
vehicle for the trial court to consider or assert that Schleinkofer’s vehicle suddenly
appeared in his line of travel. Doc. 139. See Gentile v. Ristas, 160 Ohio App.3d
765, 2005-Ohio-2197, 828 N.E.2d 1021, ¶ 75 (10th Dist.).
{¶78} In the appeal before us, the issue is whether Williams had ACDA of
him with objects located in his direct line of travel. Williams has not identified
evidence that indicates that he was driving at a speed that was sufficient to maintain
an assured clear distance between him and the objects directly ahead of him in his
line of travel given the foggy conditions that prevailed on that morning. Thus, this
argument does not present a question for a jury to consider.
{¶79} Sixth, Williams argues that he never saw Schleinkofer’s vehicle.9
However, on February 2, 2016, Williams voluntarily dismissed all of the claims
9
The police determined, in their investigation, that Williams struck Schleinkofer’s vehicle before
Schleinkofer came to a complete stop. Gray Deposition, 45, 49, 52. Schleinkofer was turning left towards
the median to avoid the Secord Tanker in his line of travel. Since Schleinkofer’s vehicle was oriented left
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against Schleinkofer pursuant to Civ.R. 41(A)(1)(a). Doc. 109. Schleinkofer is not
a party to this appeal. The dispute between the parties to this appeal is not whether
Williams saw Shleinkofer’s vehicle before the collision but whether he was able to
reasonably discern the presence of the Secord Tanker that he struck.
{¶80} The dissent asserts that there is a genuine issue of material fact as to
whether Williams violated the ACDA rule when he struck Schleinkofer’s vehicle.
However, as the dissent seems to acknowledge, the issue of whether Williams
violated the ACDA rule in colliding with Schleinkofer’s vehicle is not an issue
between the parties in the appeal before this Court. Dissent, infra, at ¶ 118. The
issue between the parties in this appeal is whether Williams maintained an ACDA
such that he was able to avoid colliding with the Secord Tanker. For this reason,
we will examine the arguments regarding Schleinkofer’s vehicle only to determine
whether the presence of this vehicle on the highway should affect our analysis of
William’s collision with the Secord Tanker.
{¶81} The dissent asserts that there is a question as to whether Schleinkofer’s
vehicle suddenly appeared in Williams’s line of travel. However, there is no
evidence that Schleinkofer’s vehicle was a peripheral object that intruded into
Williams’s ACDA. In fact, Schleinkofer’s statement to the police reads as follows:
We were driving East on Hwy 24 in [the] left lane & it was
extremely foggy with very little visibility. We encountered the
towards the median, Schleinkofer’s vehicle was pushed into the Secord Tanker and then into the median
when Williams struck Schleinkofer’s vehicle from behind. Doc. 68, Ex. D. Williams then crashed into the
Secord Tanker and came to a stop. Doc. 68, Ex. D.
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accident noticing stopped trucks & people waving the[ir] arms
warning us and I took action to avoid the accident by braking and
moving left toward median when we were struck from behind by
a truck * * *.
(Emphasis added.) Doc. 68, Ex. D.
{¶82} The evidence in the record indicates that Schleinkofer’s vehicle was
directly ahead of Williams in the left lane going eastbound. Doc. 68, Ex. D.
Schleinkofer’s statement indicates that he was orienting his vehicle towards the
median to avoid a collision with the Secord Tanker when he was struck from behind
by Williams’s vehicle. Doc. 68, Ex. D. Thus, the only evidence in the record
regarding this matter indicates that Schleinkofer’s vehicle was not a peripheral
object that suddenly appeared in Williams’s line of travel and, in so doing, had some
impact on Williams’s ability to maintain an ACDA with the Secord Tanker.
{¶83} The dissent also asserts that there is a question as to whether
Schleinkofer’s vehicle was reasonably discernible. However, regardless of whether
Schleinkofer’s vehicle was reasonably discernible, the Secord Tanker was still
reasonably discernible to Williams according to his own testimony. If Williams did
not perceive Schleinkofer’s vehicle, then the presence of this vehicle did not affect
his decision making process as he neared the Secord Tanker. Further, there is no
evidence in the record that suggests the discernibility of Schleinkofer’s vehicle
affected the discernibility of the Secord Tanker. We again note that Williams, in
his response to the motions for summary judgment, never mentioned Schleinkofer’s
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vehicle in any of his arguments to the trial court. Doc. 139. See Potts v. Safeco Ins.
Co., 5th Dist. Richland No. 2009CA0083, 2010-Ohio-2042, ¶ 26 (holding that the
failure to raise an issue in a response to a motion for summary judgment results in
waiver of that issue on appeal).
{¶84} Williams’s arguments regarding Schleinkofer’s vehicle do not tend to
establish that he did not violate R.C. 4511.21(A) when he collided with the Secord
Tanker. Williams has not identified evidence that suggests he would not have
collided with the Secord Tanker in the absence of Schleinkofer’s vehicle on the
highway. Further, Williams has not identified any evidence that suggests that the
presence of Schleinkofer’s vehicle caused him to collide with the Secord Tanker.
According to the police investigation, Williams was going fast enough that he struck
Schleinkofer’s vehicle and then struck the Secord Tanker. If anything, striking
Schleinkofer’s vehicle would have slowed Williams’s momentum as he headed
towards the Secord Tanker. Thus, the presence of Schleinkofer’s vehicle does not
change the fact that Williams simply failed to maintain an ACDA such that he could
stop before colliding with the Secord Tanker.10
10
The dissent asserts that there are genuine issues of material fact as to whether Williams violated the ACDA
rule when he collided with Schleinkofer’s vehicle. However, Williams apparently chose not to contest the
issue of whether he violated the ACDA rule when he struck Schleinkofer’s vehicle. Doc. 139. Williams
voluntarily dismissed the claims against Schleinkofer. Doc. 109. Schleinkofer was never deposed. Williams
did not mention Schleinkofer’s vehicle in the arguments in his response to the motions for summary
judgment. See Snyder v. Stevens, 4th Dist. Scioto No. 12CA3465, 2012-Ohio-4120, ¶ 15. If there were
genuine issues of material fact as to whether Williams maintained ACDA with Schleinkofer’s vehicle,
Williams was responsible to raise, litigate, and substantiate his arguments on this issue before the trial court.
See Professional Bank Services v. Grossman DT, Inc., 8th Dist. Cuyahoga No. 107670, 2019-Ohio-2230, ¶
9, 13. However, as the record stands before this Court, the presence of Schleinkofer’s vehicle on the highway
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Case No. 11-18-09
{¶85} In the end, Williams had advance warning of a dangerous condition
ahead of him from a pedestrian at the side of the road. According to his own
statements, Williams chose to proceed when he was unable to see through a dense
patch of fog. Williams’s testimony indicates that he discerned the scene of the
accidents and the Secord Tanker in his direct line of travel before he collided with
the Secord Tanker. Further, after he perceived this disabled vehicle in his direct line
of travel, he reacted to its presence, braking and taking evasive action. Thus,
Williams was simply and unquestionably going too fast to stop before he struck the
Secord Tanker. Additionally, his testimony indicates that he could still discern the
presence of the Secord Tanker before he struck it, leaving no question of fact for the
jury to decide as to whether the Secord Tanker was a reasonably discernible object.
{¶86} Based on Williams’s testimony, there is no genuine issue of material
fact in dispute as to whether the Secord Tanker was reasonably discernible.
Williams, as the nonmoving party, has not carried the burden of identifying
evidence in the record of specific facts that demonstrate there is a genuine issue of
material fact for trial. Thus, after reviewing the evidence in a light most favorable
to the nonmoving party, we conclude that Williams failed to maintain an ACDA of
his vehicle in violation of R.C. 4511.21(A) and that his conduct amounts to
does not present genuine issues of material fact as to whether Williams violated the ACDA rule when he
struck the Secord Tanker.
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Case No. 11-18-09
negligence per se. The trial court did not err in granting these motions for summary
judgment. The appellant’s first assignment of error is overruled.
Second Assignment of Error
{¶87} Williams asserts that the earlier accident on the roadway between
Janssens and Messman was a proximate cause of his accident and, therefore,
contributed to his injuries. He asserts that, even if he violated R.C. 4511.21(A), he
is still entitled to have the opportunity to present the issue of comparative fault to a
jury.
Legal Standard
{¶88} An intervening act may break the “causal chain” between one person’s
negligent act and another person’s subsequent injury. Cascone v. Herb Kay Co., 6
Ohio St.3d 155, 159, 451 N.E.2d 815, 818-819 (1983).
‘Where there intervenes between an agency creating a hazard and
an injury resulting from such hazard another conscious and
responsible agency which could or should have eliminated the
hazard, the original agency is relieved from liability. A break in
the chain of causation thereby takes place which operates to
absolve the original agency.’ * * * Or, stating the matter a little
differently, ‘where after the negligent act a duty devolves on
another person in reference to such act or condition which such
person fails to perform, such failure is the proximate cause of the
injury resulting from the act.’
(Citations omitted.) Id. at 159, quoting Thrash v. U-Drive-It Co., 158 Ohio St. 465,
471-472, 110 N.E.2d 419, 422 (1953).
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Case No. 11-18-09
{¶89} “The [applicable] test * * * is whether the original and successive acts
may be joined together as a whole, linking each of the actors as to the liability, or
whether there is a new and independent act or cause which intervenes and thereby
absolves the original negligent actor.” Cascone at 160. The term ‘new’ means that
the second act of negligence could not reasonably have been foreseen. R.H. Macy
& Co., Inc. v. Otis Elevator Co., 51 Ohio St.3d 108, 111, 554 N.E.2d 1313, 1317
(1990), quoting 1 Ohio Jury Instructions (1983), Section 11.30. “The term
‘independent’ means the absence of any connection or relationship of cause and
effect between the original and subsequent act of negligence.” Id. In this analysis,
courts consider
if the intervening act was capable of producing the injury
irrespective of the original negligence, was not set in motion by
the original negligence, and was not simply a condition on or
through which the original negligence operated to produce the
injurious result.
Reed v. Weber, 83 Ohio App.3d 437, 442, 615 N.E.2d 253, 256 (1st Dist.) citing
Mudrich v. Standard Oil Co., 153 Ohio St. 31, 41 O.O. 117, 90 N.E.2d 859 (1950);
Mouse v. Cent. Savings & Trust Co., 120 Ohio St. 599, 167 N.E. 868 (1929).
Legal Analysis
{¶90} In this case, there was a chain of eight collisions. Doc. 8, Ex. D.
Williams’s collision with Schleinkofer’s vehicle and the Secord Tanker was the
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third collision in this chain. Doc. 8, Ex. D.11 Williams may argue that the conditions
for his collision with Schleinkofer’s vehicle would not have existed “but for” the
earlier collision between Messman and Janssens. However, this is not the relevant
inquiry in this appeal. The issue herein is whether these earlier accidents were
legally a proximate cause of Williams’s injuries. Thus, we will examine the facts
underlying this appeal to determine if Williams’s negligence was a new and
independent act that cut off liability for any negligent act that Janssens may have
committed.
{¶91} First, we must determine whether Williams’s negligence was a “new”
cause. After the accidents, Janssens, who was driving the Secord Tanker, was cited
by the police for driving at an excessive speed given the prevailing weather
conditions. When drivers are travelling at excessive speeds in foggy weather, it is
arguably reasonably foreseeable that the driver might not have an ACDA with a
vehicle that was partially obscured by the fog ahead; that the driver might not have
left himself the space to stop; and that the driver might collide with this vehicle.
{¶92} However, this does not mean that a chain of eight collisions was a
reasonably foreseeable outcome of Janssens’s excessive speed.
11
The second collision was between the Secord Tanker and the Marten Transport Vehicle that was driven by
Billy Pursley. Doc. 68, Ex. C. After the Secord Tanker had collided with Messman’s vehicle, the Marten
Transport Vehicle clipped the Secord Tanker as it was swerving to the left of the Secord Tanker. Doc. 68,
Ex. C. The Marten Transport Vehicle then slid completely off of the eastbound lanes and into the median
where it jackknifed and came to rest. Doc. 68, Ex. C. Thus, the Marten Transport Vehicle was not on the
road or behind the Secord Tanker at the time that Williams subsequently came through the fog located prior
to the scene of the accidents. The Marten Transport Vehicle is not, therefore, a part of this third collision.
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One is permitted to assume that others will follow the law and
exercise ordinary care. As a matter of law, one need not anticipate
that another driver will violate the law and that a collision will
occur. Thus, such a collision is not foreseeable.
(Citations omitted.) McDougall v. Smith, 191 Ohio App.3d 101, 2010-Ohio-6069,
944 N.E.2d 1218, ¶ 6 (3d Dist.), citing Hicks v. Prelipp, 6th Dist. No. H-03-028,
2004-Ohio-3004, 2004 WL 1293999, ¶ 10. As Janssens drove, he did not have to
assume that the drivers behind him, such as Williams, were not maintaining an
ACDA of them. Thus, even if Janssens committed a negligent act that contributed
to the collision between him and Messman, the subsequent collision between
Williams and the Secord Tanker was still not reasonably foreseeable. For this
reason, Williams’s failure to maintain an ACDA was a new act.
{¶93} Second, we must now determine whether Williams’s negligence was
an independent cause. In this case, Williams’s negligence was not “set in motion”
by any negligent act that Janssens may have committed. Reed, supra, at 442. The
fact that Janssens may have been driving at an excessive speed did not cause
Williams to drive too quickly to maintain an ACDA of him. Further, Williams’s
failure to maintain an ACDA of him was also capable of producing the injuries that
he received “irrespective” of Janssens’s earlier act of driving at an excessive speed.
See Sabbaghzadeh v. Shelvey, 9th Dist. Lorain No. 98CA007244, 2000 WL 763322,
*6 (June 14, 2000).
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{¶94} Williams’s failure to maintain an ACDA of him also was not a
“condition on which the negligent act operated to produce the injurious result.”
Reed, supra, at 442. Williams committed this negligent act after the Secord Tanker
had come to a complete stop. Janssens was no longer driving at an excessive speed
at the time that Williams was committing his own negligent act. The collision was
not caused by the simultaneous interaction of Williams and Janssens’s actions.
Rather, at the time of this collision, the Secord Tanker was sitting on the road
disabled, having come to a complete stop. See Gray Deposition, 123. See Smiddy,
supra, at 37-38. Any negligent act that Janssens may have committed was
completed by the time Williams collided with the Secord Tanker.
{¶95} To advance his argument, the appellant relies on Crosby v. Radenko,
2d Dist. Montgomery No. 24343, 2011-Ohio-4662. In that case, a semi-truck had
mechanical difficulties and pulled over. Id. at ¶ 1. The semi-truck then attempted
to pull back into traffic. Id. Two cars behind the semi-truck were able to come to
a complete stop. Id. at ¶ 2. Crosby, however, swerved around the two stopped cars
and struck the semi-truck that was maneuvering onto the road. Id. at ¶ 1. The
Second District found that Crosby failed to maintain an ACDA but still found that
there was a jury question as to the comparative fault between Crosby and the semi-
truck driver. Id. at ¶ 18.
{¶96} We find Crosby distinguishable from the case before this Court for
two reasons. First, Crosby struck the semi-truck as the driver was negligently
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maneuvering back onto the road. Thus, Crosby’s negligent act was not an
independent cause because her intervening negligent act was “a condition on or
through which the [semi-truck driver’s] original negligence operated to produce the
injurious result.” Reed, supra, at 442. Second, in Crosby, the court found that
the chain of events set in motion by the acts or omissions of [the
semi-truck driver] * * * unfolded in rapid succession in a
continuous and unbroken fashion, with a result that the causal
connection between that act or omission and Crosby’s injuries
was not broken by Crosby’s negligence per se.
Id. at ¶ 56. Our district applied similar reasoning in Yoakum v. Yoakum, 3d Dist.
Allen No. 1-90-120, 1991 WL 216908, *1 (Oct. 10, 1991). In Yoakum, a semi-truck
jackknifed in snowy conditions and hit several vehicles ahead in the roadway. Id.The car behind the semi-truck came to a stop but was struck from behind by Yoakum
and pushed into the semi. Id. This Court found that
[r]easonable minds could conclude that the chain of events
unfolded in a rapid, continuous and unbroken fashion, with the
causal connection not being broken, and that [the semi-truck
driver] and [the driver of the car] were concurrent tortfeasors
with * * * Yoakum.
Id. at *4.12 For this reason, the trial court’s grant of summary judgment was found
to be inappropriate and was reversed. Id. See also Hale v. State Farm Mutual
Automobile Insurance Company, 5th Dist. Stark No. 2017CA00223, 2018-Ohio-
3035, ¶ 32.
12
We also note that Yoakum argued that he did not push the car in front of him into the semi-truck. Yoakum,
supra, at *1. He asserted that the car struck the semi-truck and then he hit the car. Id. Thus, this fact
remained in dispute as the trial court evaluated the motion for summary judgment.
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{¶97} In the case before us, however, the third collision between Williams
and the Secord Tanker did not “unfold[] in a rapid, continuous and unbroken fashion
* * *” with the first collision between Messman and the Secord Tanker. Yoakum at
*4. Rather, in between the first collision (which was between Messman and the
Secord Tanker) and the third collision (which was between Williams and the Secord
Tanker), a driver had sufficient time to safely avoid the Secord Tanker on the road;
pull his car off to the side of the road; get out of his car; get to the edge of the fog;
and wave his arms to warn Williams about the accidents ahead. Williams
Deposition, 46. Further, a second collision, which was between the Marten
Transport Vehicle and the Secord Tanker, occurred before Williams arrived at the
scene of the accidents. Doc. 68, Ex. C.
{¶98} Crosby and Yoakum rely on the decision of the Ohio Supreme Court
in Shinaver v. Szymanski, 14 Ohio St.3d 51, 471 N.E.2d 477 (1984). In Shinaver,
Szymanski lost control of her vehicle and crashed into the median barrier. Id. at 51.
Two cars behind her—driven by Blanchard and Allen—were able to come to a
complete stop. Id. Scherzer, however, collided with Allen, pushing Allen into
Blanchard and Blanchard into Szymanski. Id. Shinaver then collided with Scherzer.
Id. Shinaver sued Szymanski, Blanchard, Allen, and Scherzer. Id. The trial court
granted summary judgment as to all of the defendants. Id.
{¶99} On appeal, the Supreme Court held that
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[w]here the plaintiff driver is travelling immediately behind the
defendant driver, and both parties are negligent per se for failing
to maintain the assured clear distance ahead in violation of R.C.
4511.21, the question of whether the negligence of either party
was the proximate cause of the ensuing collision, in which the
plaintiff driver sustained personal injuries, is for jury
determination.
Id. at paragraph one of the syllabus. Thus, the Supreme Court reversed the trial
court’s grant of summary judgment as to Scherzer, holding that an issue of
comparative negligence existed for the jury to decide. Id. at 56.
{¶100} The rule in Shinaver, however, does not apply to the facts of this
appeal. Shinaver applies where “both parties are negligent per se for failing to
maintain the ACDA in violation of R.C. 4511.21.” (Emphasis added.) Id. at
paragraph one of the syllabus. In this case, the police investigation determined that
Williams failed to maintain an ACDA. Gray Deposition, 48. While Sergeant Gray
testified that Janssens was cited for excessive speed and that Janssens’s unsafe speed
contributed to this accident, Janssens was not cited for failing to maintain an ACDA.
Gray Deposition, 55-56.
{¶101} Sergeant Gray testified that Messman was the “at fault driver that
created the chain of events” because she had a stop sign and failed to yield to
oncoming traffic. Gray Deposition, 64, 102-103. See Doc. 68, Ex. B. Sergeant
Gray agreed that the intrusion of Messman’s vehicle into Janssens’s line of travel
took this initial collision “out of the assured clear distance analysis.” Gray
Deposition, 112. The rule in Shinaver might apply in this case if both Janssens and
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Williams had simultaneously violated R.C. 4511.21(A). However, since Janssens
did not violate R.C. 4511.21(A), there is not a question of comparative fault between
Janssens and Williams.
{¶102} We follow the Eighth District’s reasoning in Mitchell v. Kuchar, 8th
Dist. Cuyahoga No. 85363, 2005-Ohio-3717 and the Ninth District’s reasoning in
Sabbaghzadeh v. Shelvey, supra. In Mitchell, Kuchar was driving while intoxicated,
fell asleep, swerved across a lane of traffic and struck a concrete barrier. Id. ¶ 2.
Rizzo braked suddenly to avoid colliding with Kuchar’s car. Id. At this point,
Mitchell rear-ended Rizzo’s vehicle. Id. The Eighth District found that Mitchell’s
failure to maintain an ACDA “constituted an independent, intervening act which
absolved Kuchar of liability for the collision between Mitchell and Rizzo.” Id. at ¶
11. We also note that the situation in Mitchell was closer to a “chain of events” that
“unfolded [in a] rapid, continuous and unbroken fashion” than the case currently
before us. Yoakum, supra, at *4.
{¶103} In Sabbaghzadeh, a display case fell off a truck and into the roadway.
Sabbaghzadeh, supra, at *1. A car following the truck stopped without incident.
Id. This car had been stopped, at a minimum, for four to five minutes when a third
vehicle came and struck the stopped car. Id. The Ninth District found that the driver
of the third vehicle failed to maintain an ACDA of him and that this negligent act
“was in itself an efficient, independent, and self-producing cause of his own injury.”
Id. at *6.
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{¶104} We also note that in Mitchell and Sabbaghzadeh, the appellant was
able to advance a strong argument that, but for the defendant’s earlier negligent act,
the collision in which the appellant was involved would not have happened.
Williams, however, is not able to advance a similarly strong argument. He has not
demonstrated, by identifying facts in the record, how his collision with the Secord
Tanker would not have occurred in the absence of Janssens’s excessive speed. The
police investigation determined that Messman was at fault for the collision with the
Secord Tanker because she failed to yield to oncoming traffic.
{¶105} While Janssens’s excessive speed contributed to the initial accident,
there is no evidence in the record that the collision between Messman and Janssens
would not have happened if Janssens had been going at a slower pace. Thus, the
initial accident did not ultimately occur because Janssens was driving too fast to
maintain an ACDA. The initial accident occurred because Messman pulled out in
front of Janssens at a slow speed. As to the accident between Janssens and
Messman, Janssens’s excessive speed may be a relevant factor for a jury to consider.
However, the evidence in the record does not establish that Janssens’s excessive
speed is relevant to the collision between Williams and the Secord Tanker. Thus,
Williams cannot make the same arguments as the appellants in Mitchell and
Sabbaghzadeh.
{¶106} In the end, regardless of whether Janssens committed a negligent act,
Williams was a “conscious and responsible” agent who came upon the disabled
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Secord Tanker that was stopped in the roadway. Cascone, supra, at 159. As a
disabled vehicle, the Secord Tanker was not in an unlawful position on the
roadway.13 See Gray Deposition, 123. R.C. 4511.21(A) imposed a legal duty upon
Williams with reference to this roadway hazard: Williams had to maintain an ACDA
of his vehicle such that he could avoid colliding with any reasonably discernible
object in his line of travel.
{¶107} If Williams had operated his vehicle in compliance with R.C.
4511.21(A), he would have been able to eliminate the hazard created by the prior
collision. He could have prevented all of his injuries had he complied with the law.
However, his own negligent act came in between the prior hazard and his own
injury. Rather than eliminate the hazard, he failed to perform his legal duty, and
this “failure [was] the proximate cause of the injury resulting from this act.”
Cascone, supra, at 159, quoting Thrash, supra, at 471-472.
{¶108} For these reasons, we conclude that Williams’s failure to maintain an
ACDA was a new and independent cause of his own injury. See Sabbaghzadeh,
supra, at *6. Therefore, there is no issue of comparative fault to be submitted to a
13
This fact distinguishes the issues in this appeal from a line of cases that consider vehicles unlawfully parked
or stopped in the roadway in violation of R.C. 4511.66. See Pleimann v. Coots, 2d Dist. Greene No. 2002-
CA-54, 2003-Ohio-316; Piper v. McMillan, 134 Ohio App.3d 180, 730 N.E.2d 481 (7th Dist. 1999); Purcell
v. Norris, 10th Dist. Franklin No. 04-AP-1281, 2006-Ohio-1473. Disabled vehicles, such as the Secord
Tanker, are rendered unable to comply with R.C. 4511.66 and are expressly exempted from R.C. 4511.66
prohibition on “stop[ping], park[ing] or leave standing any vehicle * * * upon the paved or main traveled
part of the highway.” R.C. 4511.66. See Smiddy, supra, at 38. Thus, the Secord Tanker was not in an
unlawful position on the roadway at the time of the collision with Williams.
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jury for consideration. Thus, the trial court did not err in granting summary
judgment as to this issue. His second assignment of error is overruled.
Third Assignment of Error
{¶109} Williams argues that Progressive is contractually obligated to
provide underinsured motorist insurance benefits, alleging that he (1) did not violate
R.C. 4511.21(A) because the scene of the accidents was not reasonably discernible
and (2) that he is entitled to a comparative fault analysis.
Legal Standard
{¶110} R.C. 3937.18(A) governs uninsured and underinsured motorist
coverage and reads, in its relevant part, as follows:
(A) Any policy of insurance delivered * * * in this state with
respect to any motor vehicle registered * * * in this state that
insures against loss resulting from liability imposed by law for
bodily injury or death suffered by any person arising out of the
ownership, maintenance, or use of a motor vehicle, may, but is not
required to, include * * * underinsured motorist coverage * * *.
***
(D) With respect to the * * * underinsured motorist coverage * *
* included in a policy of insurance, an insured shall be required
to prove all elements of the insured’s claim that are necessary to
recover from the owner or operator of the * * * underinsured
motor vehicle.
R.C. 3937.18(A), (D). Ultimately, “[a]n insurance policy is a contract * * *.
Sarmiento v. Grange Mut. Cas. Co., 106 Ohio St.3d 403, 2005-Ohio-5410, 835
N.E.2d 692, ¶ 8. Thus, “R.C. 3937.18(D) is a default provision, governing in the
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absence of additional policy provisions requiring more.” Snyder v. Am. Family Ins.
Co., 114 Ohio St.3d 239, 2007-Ohio-4004, 871 N.E.2d 574, ¶ 26.
{¶111} Beyond the express requirements of R.C. 3937.18(A), “parties are
free to agree to the contract’s terms” “absent a specific statutory or common-law
prohibition.” Id., at ¶ 24. “R.C. 3937.18(I) expressly permits the parties to agree to
other specified conditions to, or exclusions from, uninsured/underinsured-motorist
coverage.” Id. at ¶ 26. “A court has the duty to enforce an insurance contract as
made by the parties * * *.” Currier v. Penn-Ohio Logistics, 187 Ohio App.3d 32,
2010-Ohio-198, 931 N.E.2d 129, ¶ 57.
Legal Analysis
{¶112} The underinsured motorist coverage endorsement (“UIM Provision”)
in the insurance contract between Progressive and Williams’s employer contains the
following provision:
If you pay the premium for this coverage, we will pay for damages
that an insured is legally entitled to recover from the owner or
operator of an underinsured auto because of bodily injury:
1. sustained by an insured;
2. caused by an accident; and
3. arising out of the ownership, maintenance, or use of the
underinsured auto.
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(Emphasis added.) Doc. 128, Ex. A. Progressive argues that Williams is not entitled
to recover under the UIM Provision because he has not demonstrated that he is
“legally entitled to recover” from another party to this action.
{¶113} Williams, however, argues that he is legally entitled to recover under
this UIM Policy. In his brief, Williams states that
[t]he finding that Progressive is not responsible for providing
uninsured/underinsured motorists coverage pursuant to their
contract hinges on the finding that Williams violated the Assured
Clear Distance Ahead statute—which he did not, and that he is
not entitled to comparative fault analysis.
Appellant’s Brief, 22. Thus, Williams essentially reasserts his arguments from his
first and second assignments of error. The only difference is that he, in his third
assignment of error, asserts these arguments against Progressive instead of Janssens
and Secord Farms.
{¶114} In order to establish that he was entitled to coverage under
Progressive’s UIM Policy, Williams had to demonstrate that he was “legally entitled
to recover from the owner or operator of an underinsured auto * * *.” Doc. 128,
Ex. A. Under the first assignment of error, we determined that Williams was
negligent per se for failing to maintain an ACDA of his vehicle. Under the second
assignment of error, we further determined that Williams’s negligence was a new
and independent intervening act that cut off liability for the disabled vehicles ahead
of him. Thus, Williams was not able to demonstrate that he was legally entitled to
recover from Messman, Janssens, or Secord Farms.
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{¶115} Further, Williams voluntarily dismissed Schleinkofer pursuant to
Civ.R. 41(A)(1)(a). Doc. 109. Schleinkofer was the only other vehicle that was
involved in the third collision on the morning of February 5, 2013. Since
Schleinkofer was voluntarily dismissed as party to this action, Williams has clearly
not demonstrated that he is legally entitled to damages from Schleinkofer. Thus,
Williams has not been able to satisfy a precondition of the UIM Policy as to any of
the other relevant parties to this action. For this reason, summary judgment is
appropriate as to Progressive. Williams’s third assignment of error is overruled.
Conclusion
{¶116} Having found no error prejudicial to the appellant in the particulars
assigned and argued, the judgment of the Paulding County Court of Common Pleas
is affirmed.
Judgment Affirmed
PRESTON, J., concurs in Judgment Only.
ZIMMERMAN, J., Dissenting
{¶117} I respectfully dissent from the lead opinion’s decision affirming the
trial court’s decision granting summary judgment in favor of Janssens, Secord
Farms, and Progressive. I do not dispute that there is no genuine issue of material
fact that Williams was not driving at an appropriate speed which would have
enabled him to maintain an assured clear distance ahead. That fact is patently
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obvious from the circumstances of this case—that is, there is no dispute that
Williams collided with the black Nissan Altima operated by Schleinkofer, then (at
the accident scene) the Secord Tanker operated by Janssens. However, that
Williams was operating his vehicle at a greater speed than would permit him to bring
it to a stop within the assured clear distance ahead is not dispositive of a violation
of the assured-clear-distance-ahead (“ACDA”) rule. The lead opinion not only
disregards that speed is not an element of the ACDA rule, but the opinion also
bypasses the evidentiary disputes which must be presented to a jury for resolution
to determine whether Williams violated the ACDA rule: (1) whether the black
Nissan Altima operated by Schleinkofer was reasonably discernible or suddenly
appeared in Williams’s path and (2) whether the accident scene was reasonably
discernible.
{¶118} Although the collision between the vehicles operated by Williams
and Schleinkofer is not at issue in this particular case (and Schleinkofer is not a
party to this appeal), it is necessary to review whether there remain any genuine
issues of material fact that Williams violated the ACDA rule with respect to that
collision because the facts of the case suggest that the collision between the vehicles
operated by Williams and Schleinkofer was part of the same collision involving the
vehicle operated by Williams and the Secord Tanker operated by Janssens. (See
Gray Depo. at 48). I also think that it is important to highlight the collision between
the vehicles operated by Williams and Schleinkofer in light of the principle that
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cases involving the ACDA rule “‘require evaluation of the conduct of the driver in
light of the facts surrounding the collision’” and that this evaluation is best done by
a jury because its judgment “‘is more likely to achieve a fair result than is a judge-
made rule of law.’” Ziegler v. Wendel Poultry Serv., Inc., 67 Ohio St.3d 10, 12-13
(1993), overruled on other grounds, Fidelholtz v. Peller, 81 Ohio St.3d 197 (1998),
quoting Blair v. Goff-Kirby Co., 49 Ohio St.2d 5, 9 (1976).
{¶119} I am not advocating that Williams did not violate the ACDA rule.
Rather, my dissention from the lead opinion results from the application of the
appropriate mechanism of review for a trial court’s decision grating summary
judgment in favor of a moving party. That is, after listing all of the evidence relative
to material facts and assessing whether differences between the evidence present
genuine issues, it is my opinion that there are genuine issues amid those material
facts that are most appropriately resolved by a rational trier of fact—that is, not this
court of appeal. Indeed, we are not to judge the quality of the evidence or determine
whether Williams violated the ACDA rule. Instead, this matter comes to us to
review whether the trial court’s decision grating summary judgment in favor of
Janssens, Secord Farms, and Progressive was appropriate. Accordingly, the only
measure of review this court may conduct is to assess the evidence in a light most
favorable to Williams as the nonmoving party and determine whether there remain
any genuine issues of material fact regarding whether he violated the ACDA rule.
To accomplish this, we are tasked with reviewing not just the evidence presented by
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Williams but all of the evidence to determine whether it illustrates any genuine
issues of material fact.
{¶120} R.C. 4511.21(A) restricts the speed at which drivers may operate a
motor vehicle in two manners. First, the statute restricts persons from operating a
motor vehicle “at a speed greater or less than is reasonable or proper, having due
regard to the traffic, surface, and width of the street or highway and any other
conditions.” R.C. 4511.21(A) (2009) (current version at R.C. 4511.21(A) (2019)).
This portion of the statute applies only to speeding violations—the “reasonable-
speed rule.” See State v. Freed, 10th Dist. Franklin No. 06AP-700, 2006-Ohio-
6746, ¶ 24. Second, the statute restricts persons from operating a motor vehicle
“at a greater speed than will permit the person to bring it to a stop within the assured
clear distance ahead.” R.C. 4511.21(A) (2009) (current version at R.C. 4511.21(A)
(2019)). This portion of the statue—commonly referred to as the ACDA rule—
applies to situations in which a motorist collides within an object with his or her
path or lane of travel. See Erdman v. Mestrovich, 155 Ohio St. 85, 92 (1951).
{¶121} Contrary to the lead opinion’s extensive discussion of the
reasonableness of Williams’s speed under the conditions, the reasonable-speed rule
of R.C. 4511.21(A) is not at issue in this case. Indeed, the trial court granted
summary judgment in favor of Janssens, Secord Farms, and Progressive after
concluding that there were no genuine issues of material fact that Williams violated
the ACDA rule. Accordingly, to determine whether summary judgment in favor of
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Janssens, Secord Farms, and Progressive is appropriate in this case, it is necessary
for this court to determine whether there are any genuine issues of material fact that
Williams violated the ACDA rule—not whether he was operating his vehicle at a
reasonable speed under the conditions.
{¶122} Under Ohio jurisprudence, a violation of the ACDA rule constitutes
“negligence per se.” See Pond v. Leslein, 72 Ohio St.3d 50, 53 (1995). “If a party
relies upon the assured clear distance rule to establish negligence, that party must
present some evidence of each element necessary to constitute a violation in order
to make a prima facie case of violation.” Venegoni v. Johnson, 10th Dist. Franklin
No. 01AP-1284, 2002 WL 655279, * 4 (Apr. 23, 2002), citing McFadden v. Elmer
C. Breuer Transport Co., 156 Ohio St. 430, 434 (1952). “If the party fails to present
evidence to establish any one of the elements necessary to constitute a violation, the
benefit of the statute does not accrue to that party.” Id., citing McFadden at 434.
Thus, if a de novo review reveals no remaining genuine issues of material fact that
Williams violated the ACDA rule, neither Janssens nor Secord Farms are
responsible for Williams’s injuries, and Williams is not entitled to uninsured-
motorist coverage from Progressive.
{¶123} Relative to the ACDA rule, assuming that a motorist is able to see all
hazards within his or her path or lane of travel, that motorist is obligated to operate
his or her motor vehicle at a speed at which he or she is assured to stop to avoid
collision. See Sabo v. Helsel, 4 Ohio St.3d 70, 71 (1983). Originally, certain
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circumstances—such as the sudden-emergency and reasonable-discernibility
doctrines—were treated as defenses to violations of the ACDA rule. See Venegoni
at *2; Woods v. Brown’s Bakery, 171 Ohio St. 383, 387 (1960). However, the
Supreme Court of Ohio incorporated those doctrines “into the test for a violation of
the statute.” See Venegoni at *2, citing Pond at 52. Thus, a motorist violates the
ACDA rule if there is evidence presented that the motorist collided with an object
that (1) was ahead of the motorist in his or her path or lane of travel; (2) was
stationary or moving in the same direction as the motorist; (3) did not suddenly
appear in the motorist’s path; and (4) was reasonably discernible. Pond at 52.
Importantly, speed is not an element of an ACDA-rule violation. See R.C.
4511.21(E) (2009) (current version at R.C. 4511.21(E) (2019)) (noting that a
motorist’s precise speed is irrelevant for purposes of the ACDA rule). In other
words, when a motorist collides with a discernible object—whether stationary or
moving in the same direction as the motorist (which did not suddenly appear)—that
was ahead of the motorist in his or her path or lane of travel, it is presumed that the
motorist was travelling too fast. Otherwise, that motorist would have been able to
avoid the collision. Here, we are constrained to review the evidence in a light most
favorable to Williams as the nonmoving party to determine whether there remain
any genuine issues as to any material facts relative to only the four elements of a
violation of the ACDA rule.
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{¶124} Because Williams collided with the black Nissan Altima operated by
Schleinkofer, then (at the accident scene) the Secord Tanker operated by Janssens,
it can be presumed (without a lengthy analysis) that Williams was travelling too
fast. Nevertheless, based on my review of the record, I see two scenarios presenting
genuine issues of material fact as to whether Williams violated the ACDA rule: (1)
whether the black Nissan Altima operated by Schleinkofer suddenly appeared in
Williams’s path or whether that vehicle was reasonably discernible and (2) whether
the accident scene was reasonably discernible.
{¶125} First, there is a genuine issue of material fact whether Williams
violated the ACDA rule in his collision with the black Nissan Altima operated by
Schleinkofer—an issue which was not addressed by the trial court. Specifically,
genuine issues of material fact remain as to whether that vehicle suddenly appeared
in Williams’s path or whether it was reasonably discernible. “An object suddenly
appears in the driver’s path if the ‘assured clear distance was suddenly cut down or
lessened by the entrance into the driver’s line of travel of some obstruction which
rendered him unable, in the exercise of ordinary care, to avoid colliding with such
obstruction.’” Venegoni at *2, quoting Cox v. Polster, 174 Ohio St. 224, 226 (1963).
See Woods at 386-387.
The Ohio Supreme Court has declared that a following vehicle does
not violate the assured-clear-distance statute when the lead vehicle
suddenly appears in the path of the following vehicle, and when the
following vehicle is not at fault for the lead vehicle’s sudden
appearance: “When a lead vehicle departs from a following
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motorist’s line or path of travel, only to reenter the line or path of
travel suddenly and without the fault of the following motorist at a
forward distance insufficient to allow the following motorist to avoid
collision in the exercise of ordinary care, the following motorist is not
negligent per se for failing to maintain an assured clear distance. This
is true regardless of whether the lead vehicle completely leaves the
lane of traffic in which both the lead and following motorists are
traveling.”
Haney v. Law, 1st Dist. Hamilton No. C-070313, 2008-Ohio-1843, ¶ 16, quoting
Pangle v. Joyce, 76 Ohio St.3d 383, 392-393 (1996), and citing Matz v. J.L. Curtis
Cartage Co., 132 Ohio St. 271 (1937) and Smiley v. Arrow Spring Bed Co., 138
Ohio St. 81 (1941). However, “[a] collision with a vehicle stopped in the roadway
does not constitute a sudden emergency.” Venegoni at *2, citing Coronet Ins. Co.
v. Richards, 76 Ohio App.3d 578, 584 (1991). Rather, that circumstance requires
an assessment of the reasonable discernibility of the stopped vehicle. See id. at *3.
{¶126} Here, it is my opinion that evidence was presented from which
reasonable minds could reach different conclusions as to whether the black Nissan
Altima operated by Schleinkofer suddenly appeared in Williams’s lane of travel
within Williams’s assured clear distance ahead and rendered him unable, in the
exercise of ordinary care, to avoid the collision with that vehicle. See Ziegler, 67
Ohio St.3d at 13. Specifically, Williams provided unequivocal testimony that he
did not see the black Nissan Altima operated by Schleinkofer. (Williams Depo. at
41, 48). He further testified that he did not “see any vehicles in front of [him], either
in [his] lane or the right-hand lane.” (Id. at 71). However, Williams testified that
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he attempted to avoid colliding with the Secord Tanker operated by Janssens at the
accident scene by swerving to the left median but that he was unable to travel into
the left median because there was “something in the median” yet he could not recall
what was in the median restricting his travel. (Id. at 126). (See also id. at 47). He
further clarified that he “was looking for a way out, the median was the first choice,
[but he] couldn’t go that way because there’s vehicles or something [he saw] over
there * * * .” (Id. at 40).
{¶127} There is also a genuine issue of material fact as to whether the object
that Williams saw in the left median was the black Nissan Altima operated by
Schleinkofer or the vehicle operated by a witness to the accidents—Black. That is,
Black testified that she stopped her vehicle in the left median preceding the accident
scene prior to the collision between the vehicle operated by Williams and the Secord
Tanker operated by Janssens. (See Black Depo. at 40, 58). Further complicating
the issue is Sergeant Gray’s testimony that Schleinkofer stated to him that he “took
action to avoid the crash by braking and moving left toward the median, and then
[he] was struck behind by a truck,” which was later determined to be the truck
operated by Williams. (Gray Depo. at 44). From this testimony, we are unable to
say that there are no genuine issues of material fact that the black Nissan Altima
operated by Schleinkofer suddenly appeared in Williams’s lane of travel within
Williams’s assured clear distance ahead and rendered him unable, in the exercise of
ordinary care, to avoid the collision with that vehicle.
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{¶128} Moreover, this evidence creates a genuine issue of material fact as to
whether the black Nissan Altima operated by Schleinkofer was reasonably
discernible. “‘“The word ‘discernible’ ordinarily implies something more than
‘visible.’ ‘Visible’ means perceivable by the eye whereas ‘discernible’ means
mentally perceptible or distinguishable,—capable of being ‘discerned’ by the
understanding and not merely by the senses.”’” (Emphasis sic.) Cleveland Elec.
Illum. Co. v. Major Waste Disposal, 11th Dist. Lake No. 2015-L-104, 2016-Ohio-
7442, ¶ 25, quoting McFadden v. Elmer C. Breuer Transp. Co., 156 Ohio St. 430,
441-442 (1952), quoting Colonial Trust Co., Admr. v. Elmer C. Breuer, Inc., 363
Pa. 101, 69 A.2d 126 (1949). “Accordingly, ‘“[d]iscernible” means cognitive
awareness while “visible” means merely capable of being seen.’” Id., quoting Tritt
v. Judd’s Moving & Storage, Inc., 62 Ohio App.3d 206, 217 (10th Dist.1990). See
Cleveland Elec. Illum. Co. at ¶ 34 (Wright, J., dissenting) (noting that courts must
not only assess whether the object was visible, but also assess whether the object, if
visible, was discernible within a sufficient time to allow the driver to stop when
assessing the reasonable discernibility of an object), citing Tomlinson v. City of
Cincinnati, 4 Ohio St.3d 66, 69 (1983), Mincy v. Farthing, 1st Dist. Hamilton No.
C-081032, 2009-Ohio-5245, ¶ 12-18, and Cincinnati Ins. Co. v. Watson, 10th Dist.
Franklin No. 88AP-898, 1989 WL 18172, *1-3 (Mar. 2, 1989). “An automobile,
van, or truck stopped on a highway in a driver’s path during daylight hours is, in the
absence of extraordinary weather conditions, a reasonably discernible object as a
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matter of law.” Smiddy v. Wedding Party, Inc., 30 Ohio St.3d 35 (1987), paragraph
two of the syllabus.
{¶129} “‘[W]hether an object is discernible under a given set of
circumstances is a question of fact, and, when reasonable minds could reach
different conclusions from the evidence presented upon the question,’” judgment in
favor of the non-moving party should not be granted. Sabo, 4 Ohio St.3d at 72,
quoting Blair, 49 Ohio St.2d at 10. See also Mincy at ¶ 18. Specifically, “[i]n cases
in which a collision occurred at night or during extraordinary weather conditions
that reduced visibility, the Ohio Supreme Court has held a jury question existed as
to whether the object that the driver hit was reasonably discernible.” Hale v. State
Farm Mut. Auto. Ins. Co., 5th Dist. Stark No. 2017CA00223, 2018-Ohio-3035, ¶
15, citing Blair at 5, Sabo at 70, 73, Tomlinson at 67, Junge v. Bros., 16 Ohio St.3d
1, 4 (1985), Sharp v. Norfolk & W. Ry. Co., 36 Ohio St.3d 172 (1988), syllabus, and
Ziegler, 67 Ohio St.3d at 13-14. See also Venegoni, 2002 WL 655279, at *4 (“Thus,
particularly where conflicting evidence is introduced regarding whether an object is
reasonably discernible on a highway during nighttime hours, a judgment of a jury is
required.”), citing Sharp at 175.
{¶130} Construing the evidence in Williams’s favor, it is clear that a genuine
issue of material fact as to whether Williams reasonably discerned the black Nissan
Altima operated by Schleinkofer exists—that is, whether he was cognitively aware
of that vehicle within a sufficient time to allow him to stop. Likewise, my review
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of the record reveals there are genuine issues of material fact as to whether the
accident scene was reasonably discernible.
{¶131} In this case, Williams testified that the fog “started getting * * *
thicker” as he drove east but that it was patchy and that “up until the accident, you
could still see pretty good to drive * * * .” (Williams Depo. at 35-36, 68-69, 112).
He testified that west of the wall of fog “wasn’t that bad, it was patchy. It wasn’t
all that bad up until the time of the accident * * * .” (Id. at 85, 113). Williams stated
that he “got to the thickest part of the fog * * * right before the accident” and that
the accident scene was “on the other side of” the wall of fog. (Id. at 38-39).
Williams described the wall of fog as a total white out “[f]or about a split second”
and that he noticed that the wall of fog appeared different from the patchy fog, which
was present “[b]efore [he saw] the guy waving his hands.” (Id. at 85, 92). (See also
id. at 91).
{¶132} Williams described the chain of events as he perceived them:
“[s]omebody comes out and waves their hands * * * to stop or slow down, [he]
applied the brake, [he] looked up, there was like no visibility for like a split second,
and the fog disappears, and all [he] see[s] is a big chaos in front of [him].” (Id. at
40). (See also id. at 46-47, 72, 85, 92, 113, 121). Importantly, Williams testified
that he could not tell that the wall of fog behind the person was very dense and could
not see any vehicles or any objects beyond the wall of fog. (Id. at 73-74). Moreover,
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Williams testified that he did not hear any of the prior collisions, hear any horns, or
see any lights. (Id. at 53).
{¶133} A witness to a number of the accidents that morning (as well as the
weather conditions that precipitated those accidents)—Cusick—testified that he
witnessed the Secord Tanker operated by Janssens pass him but that “[i]t had gotten
far enough that [he] had lost the headlights [sic].” (Cusick Depo. at 13). Then,
according to Cusick, “it wasn’t much longer [until he] again saw the taillights” of
the truck as it was colliding with the vehicle operated by Messman. (Id. at 13-14).
Cusick (who was operating a GMC Yukon) hypothesized that (had he been
travelling in the same lane as the truck) he would have been able to avoid colliding
with it because he “saw the lights in enough time * * * .” (Id. at 21). Cusick testified
that he could see the Secord Tanker’s red taillights from a distance of 100 to 150
feet. (Id. at 41-42).
{¶134} Cusick described the fog as including varying levels—“it was always
either extremely dense or it would get a little better, but it would never completely
let up”—but that “the changes in the density of the fog still allowed [him] to
continue to travel on that road.” (Id. at 17-18). However, he described the fog in
the area of the accident scene was denser than the previous fog patches that he
encountered. (Id. at 17-19). Indeed, he testified that the density of the fog at the
accident scene “was not ascertainable until [he] got into the dense patch.” (Id. at
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19). However, he testified that he would not characterize that dense patch of fog as
a wall; rather, he would characterize it as “a large fog mass.” (Id. at 19-20).
{¶135} A second witness to those accidents—Black—testified that she “had
come upon the accident that had already happened” between the Secord Tanker
operated by Janssens and the Marten Transport vehicle operated by Pursley which
caused her to “pull[ her] vehicle off to the left * * * .” (Black Depo. at 11). (See
also id. at 40-43, 58). She testified that she was able to see the “silhouette” of the
accident scene within enough time for her to pull her vehicle into the median. (Id.
at 67).
{¶136} According to Black, the fog became thicker the further east she drove
and that “[i]t came in very quick * * * .” (Id. at 37). Black described the fog as
worsening from the time she parked her vehicle until the collisions ended—namely,
between the time she exited her vehicle and the collision between the vehicle
operated by Williams and the Secord Tanker operated by Janssens. (Id. at 17, 23).
Further, Black described the fog “as a large, foggy area” as opposed to a wall of fog.
(Id. at 52). (See also id. at 66).
{¶137} Moreover, Sergeant Gray testified that Schleinkofer reported to him
“that he saw the truck and people waiving, and took action to avoid the crash by
braking and moving left toward the median * * * .” (Gray Depo. at 44).
{¶138} Although not dispositive to this appeal, Janssens’s and Pursley’s
testimony also illustrate the remaining jury issue: whether the black Nissan Altima
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operated by Schleinkofer and the wall of fog and, consequently, the accident scene
were reasonably discernible. Janssens testified that the “[f]og was dense” and that
it “would lift and then it would come in thick * * * .” (Janssens Depo. at 67). (See
also id. at 127). He testified that, just prior to his collision with Messman, he
encountered a patch of dense fog—which he characterized as a wall of fog—that
lasted about a “[h]alf mile, quarter of a mile.” (Id. at 69-70, 75, 128). According to
Janssens, he was “not surprised” to encounter the dense fog because he “had been
driving in that dense fog for a while” but that the density of the fog caught him “off
guard.” (Id. at 77, 129). Janssens testified he could not see any of the other
collisions that occurred behind him because the fog was too dense. (Id. at 128-129).
Janssens described his collision with Messman’s vehicle as a “hidden hazard” in
that patch of dense fog. (Id. at 84-85).
{¶139} Pursley testified that “[t]he weather was patchy, misty, patchy fog to
clear. It was just a hit and miss of the patchy fog.” (Pursley Depo. at 52). (See also
id. at 53-54, 84, 89-90, 127). He described it as “getting foggier” the further he east
that he drove. (Id. at 55). According to Pursley, he saw “what looked to be red
lights” on the right shoulder,” which caused him to take “evasive action because the
fog had become very dense, very tick, almost like a wall, and [he] wanted to give
whoever [sic] was on that shoulder safe space. And the visibility was so low that
[he] took evasive actions to move to the fast lane or hammer lane.” (Id. at 55-57).
He further testified:
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At the time that I first saw the red lights, I saw the red lights and then
everything just went blank. It was like a wall, it was very dense fog.
As soon as I saw those lights, my evasive action to those lights was to
move to the hammer lane, but as soon as I saw those lights, at the same
time, there was like a flicker of light. Your senses are already
heightened and aware of more of your surroundings, and I saw the
light and the light disappeared into a white fog.
(Id. at 57). (See also id. at 84-86, 119-122, 128). Then, he “had a flash of red light
dead ahead of [him], no idea what it was, just red light. * * * He attempted to go to
the median,” but “[s]ome part of [his] vehicle * * * hit an object.” (Id. at 59). He
clarified that he did not see the red tail lights of the Secord Tanker operated by
Janssens, only the red lights on the right shoulder. (Id. at 121). He described that
there was “no visibility” or “a white out” for “a fraction of a second.” (Id. at 84-
85). Because there was no visibility, Pursley did not know what he hit. (Id. at 59,
87-88, 90, 129).
{¶140} In my opinion, the foregoing evidence presents conflicting evidence
as to the discernibility of the black Nissan Altima operated by Schleinkofer and the
accident scene. There is no dispute that extraordinary weather conditions were
present—namely, the accident occurred during a period of foggy conditions—and
that the accident did not occur during the day light; rather it occurred at dawn (or
the beginning of twilight).14 Yet, the lead opinion tacitly concludes that “this
14
The lead opinion suggests that the “Smiddy rule,” which states that an object “stopped on a highway in a
driver’s path during daylight hours is, in the absence of extraordinary weather conditions, a reasonably
discernible object as a matter of law” could apply to the periods of the day known as dawn or dusk. (Lead
Opinion at ¶ 15, fn. 2); Smiddy v. Wedding Party, Inc., 30 Ohio St.3d 35 (1987), paragraph two of the syllabus.
I disagree that this rule applies to the periods of the day known as dawn or dusk—twilight; rather, it is my
opinion that the application of this rule to this period of the day is a question of fact to be considered on a
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argument does not present a question for a jury to consider.” (Lead Opinion at ¶
78).
{¶141} In support of its conclusion that no jury question exists, the lead
opinion suggests that “[n]either bends nor twists in the highway, crests in the road,
dim lights, fog, sleet, rain, or blinding lights of approaching motor vehicles will
excuse him from the duty to drive so that he can stop his vehicle within that assured
clear distance ahead” and that “the driver of an automobile has a duty to ‘stop his
machine whenever he is so blinded as to be unable to see the way in front of him.’”
(Citations omitted.) Roszman v. Sammet, 20 Ohio App.2d 255, 258 (3d Dist.1969),
rev’d on other grounds, 26 Ohio St.2d 94 (1971); Pleimann v. Coots, 2d Dist.
Greene No. 2002-CA-54, 2003-Ohio-316, ¶ 17. I generally agree that none of those
conditions obviate the requirement that a driver operate his or her vehicle in a
manner in which he can stop his or her vehicle within an assured clear distance
ahead or that a driver has a duty to stop (or slow) his vehicle if he is unable to see
the way in front of him. However, the failure to comply with those measures does
not constitute a violation of the ACDA rule; rather, that failure would be evidence
of a violation of the “reasonable-speed rule” under R.C. 4511.21(A) because (as I
previously stated) operating a vehicle—notwithstanding the conditions—at a
greater speed than would permit a motorist to bring the vehicle to a stop within the
case-by-case basis. See Sauer v. Crews, 10th Dist. Franklin No. 10AP-834, 2011-Ohio-3310, ¶ 20. See also
Roszman v. Sammet, 20 Ohio App.2d 255, 256 (3d Dist.1969), rev’d on other grounds, 26 Ohio St2d 94
(1971).
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assured clear distance ahead is not dispositive of a violation of the ACDA rule.
Rather, violations of the ACDA rule must be evaluated against the four elements of
the rule.
{¶142} Moreover, in support of its contention that summary judgment in
favor of Janssens, Secord Farms, and Progressive is appropriate, the lead opinion
relies on a case from our sister appellate district rejecting the “contention that the
white-out condition which obscured his visibility of the truck was an intervening
cause that cut-off appellant’s obligation to drive at a reasonably safe speed for the
then existing road and weather conditions in their totality.” State v. Klein, 11th Dist.
Portage No. 95-P-0053, 1998 WL 156868, *5 (Mar. 27, 1998). However, the
Eleventh District Court of Appeals’ analysis ignores the elements of the ACDA rule
that I discussed above—namely, whether an object with which a driver collides was
reasonably discernible. The same is true of the Sixth District Court of Appeals’
analysis in Kaip v. Estate of Smith. 6th Dist. Erie No. E-05-037, 2006-Ohio-323.
{¶143} Indeed, as I pointed out above, the Supreme Court of Ohio
incorporated the reasonable-discernibility doctrine “into the test for a violation of
the” ACDA rule. See Venegoni, 2002 WL 655279, at *2, citing Pond, 72 Ohio St.3d
at 52. Thus, our sister appellate districts’ analyses are more appropriately applied
to a violation of the reasonable-speed rule under R.C. 4511.21(A).
{¶144} Here, I would conclude that reasonable minds could reach different
conclusions as to the discernibility of the black Nissan Altima operated by
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Schleinkofer and the accident scene based on the presence of the fog as well as the
twilight period of the day. Compare Hale, 2018-Ohio-3035, at ¶ 21 (concluding
that “reasonable minds could reach different conclusions as to whether the stopped
Pilot was reasonably” discernible because a “mixture of rain and snow was falling,
and it was dark outside”); Blair, 49 Ohio St.2d at 5 (concluding that a question of
reasonable discernibility existed for a jury to determine because it was “dark, misty,
rainy night”); Sabo, 4 Ohio St.3d at 70, 73 (concluding that the ACDA-rule violation
was a question of fact for the jury based on the presence of fog); Junge, 16 Ohio
St.3d at 4 (holding “that reasonable minds could reach different conclusions as to
whether the overturned tractor-trailer was reasonably discernible” because, in part,
“[t]he stretch of highway where this accident occurred was unlit and the night was
dark”); Sharp, 36 Ohio St.3d at syllabus (holding that “the issue of whether an object
is reasonably discernible on a highway during nighttime hours is usually a question
of fact for a jury to determine”); Ziegler, 67 Ohio St.3d at 13-14 (concluding that
evidence was presented from which jury could reasonably have concluded that bus
was not reasonably discernible in heavy fog). Furthermore, beyond the presence of
the fog, I think that the testimony depicting the varying degrees of the fog also
presents a question for the jury to consider in determining the reasonable
discernibility of the black Nissan Altima operated by Schleinkofer and the accident
scene. See Ziegler at 13-14.
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{¶145} Nevertheless, the lead opinion addresses the reasonable-
discernibility element of the ACDA rule and concludes that the accident scene must
have been reasonably discernible to Williams because he “was able to see the Secord
Tanker in his direct line of travel before he struck it.” (Lead Opinion at ¶ 28). That
conclusion is not an appropriate application of the reasonable-discernibility
element. See Cleveland Elec. Illum. Co., 2016-Ohio-7442, at ¶ 36 (Wright, J.,
dissenting) (“That Tyson saw the power line before his truck hit it is not dispositive
as to whether a reasonably prudent person should have appreciated the danger.”).
That is, the ACDA rule “does not apply ‘unless the object struck was discernible for
“a time sufficient to allow the driver to avoid it with the exercise of reasonable
care.”’” Venegoni at *5, quoting Coronet Ins. Co. v. Richards, 76 Ohio App.3d 578,
584 (10th Dist.1991), quoting Midwestern Indemnity Co. v. Chubbs, 10th Dist.
Franklin No. 83AP-347, 1983 WL 3849, *1 (Dec. 27, 1983). Thus, “[t]he fact that
[a driver] saw [another] vehicle seconds before the collision is not determinative of
whether [that] vehicle was ‘reasonably discernible.’” Id., citing Blair at 11. See
Cleveland Elec. Illum. Co. at ¶ 34 (Wright, J., dissenting).
{¶146} Notwithstanding that conclusion, the lead opinion recognizes the
conflicting evidence as to the amount of time that the accident scene was discernible.
Specifically, the lead opinion highlights that Black and Cusick were able to see the
accident scene through the fog. (Lead Opinion at ¶ 66-67). Importantly, Black
testified that she discerned the accident scene within a time sufficient to allow her
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to avoid collision and Cusick testified that he saw the accident scene within a time
sufficient that he hypothesized that he would have been able to stop. Further,
Schleinkofer testified that he discerned the accident scene within a time sufficient
to allow him to avoid collision. Black’s, Cusick’s, and Schleinkofer’s testimony
conflicts with Williams’s and Pursley’s testimony that they did not see the accident
scene within a time sufficient to permit them to stop. Because there is conflicting
evidence as to the discernibility of the black Nissan Altima operated by Schleinkofer
and the accident scene, Ohio case law demands that element of the ACDA rule to
be determined by a jury. See Pond, 72 Ohio St.3d at 52. See also Venegoni at *5.
{¶147} Finally, another issue affecting the discernibility of the accident
scene is the collision between the vehicles operated by Williams and Schleinkofer.
This collision—occurring moments before the collision between the vehicle
operated by Williams and (at the accident scene) the Secord Tanker operated by
Janssens—constitutes a circumstance which should be considered by a jury in
determining the reasonable discernibility of the accident scene. See Sabo, 4 Ohio
St.3d at 72; Ziegler, 67 Ohio St.3d at 12-13.
{¶148} Therefore, because summary judgment must be awarded with
caution, and because the lead opinion has tip-toed perilously close into a factfinder’s
role in its analysis of witness credibility, genuine issues of material fact exist in this
case. Accordingly, construing the evidence in a light most favorable to Williams, I
would conclude that reasonable minds could reach different conclusions as to
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whether the black Nissan Altima operated by Schleinkofer suddenly appeared in
Williams’s lane of travel and as to the reasonable discernibility of the black Nissan
Altima operated by Schleinkofer and the accident scene. Because reasonable minds
could reach different conclusions as to whether Williams violated the ACDA rule,
a jury issue remains and summary judgment in favor of Janssens, Secord Farms, and
Progressive is not warranted. Based on this conclusion, Williams’s second and third
assignments of error would be moot and I would not address them.
/hls
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