Davis v. Royal Paper Stock Co., Inc.

[Cite as Davis v. Royal Paper Stock Co., Inc., 2022-Ohio-4135.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLINTON COUNTY
JULIE DAVIS, et al., :
Appellant, : CASE NO. CA2021-09-028
: OPINION
- vs - 11/21/2022
:
THE ROYAL PAPER STOCK CO., INC., :
et al.,
:
Appellees.
CIVIL APPEAL FROM CLINTON COUNTY COURT OF COMMON PLEAS
Case No. CVH19000202
Davidson Law Offices Co. LPA, and David T. Davidson; Chappars Law Office, and Timothy
S. Chappars, for appellant.
Surdyk, Dowd & Turner Co., LPA, and Edward J. Dowd and Christopher T. Herman, for
appellees The Royal Paper Stock Company, Inc. and RPS Leasing, Inc.
Lewis, Brisbois, Bisgaard & Smith, LLP, and Joseph Fiorello, for appellee Beauty Systems
Group, LLC.
BYRNE, J.
{¶1} This case involves a collision between a semi-tractor driven by Shawn Davis
and a stationary, docked semi-trailer on a warehouse lot. The collision resulted in Shawn's
death. The parties agree that Shawn's own negligence was a proximate cause of the
collision and of his death. But Shawn's wife, Julie Davis, and Shawn's estate, filed a lawsuit
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alleging that the Defendants' negligence also caused or contributed to Shawn's death. The
Defendants moved for summary judgment, which the Clinton County Court of Common
Pleas granted. Julie appealed. For the reasons described below, we affirm the trial court's
summary judgment decision.
I. Factual Background and Procedural History
A. Royal and Beauty's Business Arrangement
{¶2} Defendants, Royal Paper Stock Company, Inc. and RPS Leasing, Inc.
(collectively "Royal"), purchase scrap paper and cardboard and sell it to paper mills.
Another company and defendant, Beauty Systems Group LLC ("Beauty"), operates a
warehouse facility in Greenville, Ohio, which it uses in its business of distributing beauty
supplies. Royal and Beauty had an arrangement in which Royal agreed to purchase
Beauty's leftover scrap paper and cardboard by the ton.
{¶3} To collect the scrap paper and cardboard, Royal left one of its semi-trailers
docked at Beauty's warehouse. Using a forklift, Beauty would load the trailer with scrap
paper and cardboard until it was full. Royal would then have the fully loaded trailer
transported to its facility. At the same time, Royal would replace the full trailer with an empty
trailer so that Beauty could continue loading scrap paper and cardboard. Royal retained
R&L Carriers, a freight shipping company, to drop off and pick up Royal's trailers from
Beauty's facility.
B. The Accident
{¶4} On June 20, 2017, Shawn, an R&L Carriers driver, drove to Beauty's
warehouse in his semi-tractor to deliver an empty Royal semi-trailer and to pick up Royal's
docked semi-trailer ("docked trailer"),1 which contained approximately 28,000 pounds of
1. RPS Leasing, Inc. was the title owner of the trailer and Royal Paper Stock Company, Inc. used the trailer
in its business. Both companies are commonly owned.
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scrap paper and cardboard.
{¶5} The undisputed facts show that Shawn's tractor, with the empty semi-trailer
still attached, and with the empty trailer's wheels locked (causing 32 feet of skid marks),
collided with the nose of the docked trailer. Shawn's tractor and its empty semi-trailer were
positioned perpendicularly to the docked trailer, with the driver side window of the tractor's
cab facing towards the nose of the docked trailer. The impact was a sideswipe. But
somehow, the tractor lifted the front end of the docked trailer up in the air by a few inches,
despite the docked trailer being fully loaded. Sometime during the incident, either before
or after the collision, Shawn exited the tractor. He became pinned between the docked
trailer, the door of the tractor, and the tractor's door frame. At some point, the docked trailer
collapsed. Tragically, Shawn died from the injuries he sustained that day.
{¶6} There were no witnesses to the collision or to the chain of events that led to
Shawn being pinned between the docked trailer and his tractor. However, several
witnesses did see and testified about the immediate aftermath of the collision in discovery
depositions. Troy Patterson – another truck driver who was on Beauty's property – testified
that he heard a "crash. A crash, bang." He then saw that there was a man – Shawn –
being crushed between the docked trailer and the door of Shawn's tractor. Shawn was
facing towards the front of the tractor. Patterson approached, entered the cab through the
passenger side, tapped on Shawn's hand, and got no response. Shawn did not "look good."
Patterson decided he needed to free Shawn by backing up the tractor. At first, he found he
could not move the tractor in reverse because the air supply lines between the tractor and
the empty trailer were disconnected. (A semi-trailer's wheels will lock in place if the trailer
is not being supplied by air from the semi-tractor.) Patterson reconnected an air supply line
and was then able to reverse the tractor two to three feet. This action freed Shawn, who
then fell to the ground.
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{¶7} A second witness, Sherry Waymire, was a Beauty employee. Waymire
testified that she was standing in front of the tractor when Patterson was trying to back up
the tractor to free Shawn. She watched the tractor "hop" or move forward several feet. She
described the motion as "like somebody just learning to drive, that hop with the clutch thing."
It appeared to her that this forward motion caused the tractor to go "into the trailer * * * even
a little bit more." Within a minute, however, Patterson managed to reverse the tractor.
Waymire said that when the tractor reversed, Shawn fell to the ground. Waymire testified
that the docked trailer remained upright until the tractor backed up. Immediately after the
tractor backed up, Waymire observed the docked trailer collapse to the ground.
{¶8} A third witness, Randy Gunkle, testified that he also saw the aftermath of the
accident. When he saw Shawn pinned, the docked trailer had not yet collapsed. Like
Waymire, Gunkle testified that the docked trailer collapsed either immediately after or
shortly after the tractor reversed.
{¶9} Photographs submitted with summary judgment filings show damage to the
tractor's driver's-side mirror and door, as well as damage to the fender above the driver's-
side wheel and tire.
{¶10} The docked trailer had "landing gear" or "landing legs," which were structural
legs located towards the nose of the docked trailer that could be lowered to support the
docked trailer when it was unhooked from a tractor. The legs were lowered and supporting
the docked trailer before the collision. When the docked trailer collapsed, the landing gear
legs both fell to the ground.
{¶11} A police detective who investigated the accident believed that Shawn may
have been outside of the tractor, unhooking the empty trailer, when the tractor started
moving forward on its own, perhaps because Shawn left the tractor in gear. The detective
surmised that Shawn then tried to board the moving tractor to stop it when the impact with
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the docked trailer occurred, pinning him between the cab door and the door frame.
C. The Complaint
{¶12} In 2019, Julie Davis, individually and as the administrator of Shawn's estate,
filed a complaint against Royal and Beauty. Julie alleged that the docked trailer's landing
gear were "rusted, weakened, and in a state of disrepair susceptible to collapse." Julie
alleged that the trailer's landing gear collapsed after Shawn's tractor "grazed" the docked
trailer, pinning Shawn between the driver's door and driver's side of the cab of the tractor.
{¶13} Julie alleged that Royal, as the owner of the docked trailer, breached a duty
of care to Shawn to keep the docked trailer in a reasonably safe condition and was negligent
by failing to adequately inspect, maintain, and repair the docked trailer. Julie also alleged
that Beauty owed Shawn a duty to keep its warehouse in a reasonably safe condition and
to warn of hidden dangers. The complaint alleged that Beauty knew that the docked trailer
presented a dangerous condition and was negligent by allowing the docked trailer to be
present at the warehouse and by not warning others of the dangerous condition.
D. Expert Witnesses
{¶14} The parties engaged in extensive discovery, including deposing the witnesses
described above, along with others. In addition to these lay witnesses, three expert
witnesses—two retained by Julie and one retained by Beauty—provided written reports and
were deposed. Because the issues in this appeal largely concern the expert witnesses, we
will summarize their written reports and deposition testimony here.
1. Dr. Mariusz Ziejewski, Ph.D.
{¶15} Julie retained Dr. Mariusz Ziejewski, a mechanical engineer with a Ph.D. in
high viscosity flow dynamics (fluid analysis), to offer his opinion about the causes of the
accident.
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a. Dr. Ziejewski's Written Report
{¶16} Dr. Ziejewski issued a written report in which he summarized his investigation
and conclusions. Dr. Ziejewski wrote that he reviewed various written material associated
with the accident, including the police report and an investigation by the Occupational
Safety and Health Administration ("OSHA"). He also reviewed the deposition testimony of
multiple witnesses to the accident. Finally, he physically examined the accident site, the
docked trailer, and the collapsed landing legs. He reviewed various photographs of the
damage to the tractor.
{¶17} Dr. Ziejewski offered his opinion about the sequence of events. Dr. Ziejewski
believed that Shawn was unhooking his empty trailer and in doing so attempted to
disconnect the trailer's king pin from the tractor. But, unbeknownst to Shawn, the king pin
re-engaged, and the empty trailer was not decoupled when Shawn got back into the tractor
and began moving the tractor.2 Shawn then began dragging the trailer with its wheels
locked, which was evident because there were around 32 feet of drag marks behind the
empty trailer leading up to the collision site.
{¶18} Dr. Ziejewski further believed that the first interaction between the tractor and
docked trailer was that the tractor's left front fender "interacted with the underside of the
docked trailer resulting in the left front fender being brought in contact with the left front
wheel." This occurred while Shawn was still in the tractor. While he did not specify it in his
written report, Dr. Ziejewski later clarified at his deposition that this "interaction" resulted in
the docked trailer being lifted and effectively perched and balanced like a "teeter totter" on
the tractor's left front fender/wheel.
{¶19} Following this event, Dr. Ziejewski believed that Shawn exited the cab. Due
2. There was evidence in the summary judgment record to establish that king pin re-engagement after
disconnection was not an unusual occurrence in commercial trucking.
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to his weight (454 pounds), Shawn contributed to the "counterclockwise roll of the cab."
The docked trailer then slipped off the left front fender/wheel and collapsed onto the tractor
as Shawn was exiting the tractor.
{¶20} Dr. Ziejewski stated that the "biomechanical analysis of the event are
consistent with the trailer collapsing and pinning [Shawn] between the driver's door and the
frame of the cab, followed by release and subsequent head strike into the pavement."
Ultimately, Dr. Ziejewski stated that "[t]he trailer fell due to the failure of the supporting legs,
not as a result of contact with the tractor."
b. Dr. Ziejewski's Deposition
{¶21} At his deposition, Dr. Ziejewski admitted that he did not perform any failure
testing on the landing legs and did not determine why the legs failed. He also did not
perform any testing to determine the level of corrosion of the legs. He did not determine
whether the condition of the landing legs violated any applicable standards.
{¶22} Dr. Ziejewski explained that he had some expertise in metallurgy and had
experience in failure analysis of metals but had not found it necessary to conduct any tests.
He also said that he could have x-rayed the legs to determine how much metal there was
as opposed to rust and that "we do it on a regular basis."
{¶23} Dr. Ziejewski did not consider the weight or distribution of the scrap paper and
cardboard in the tractor in his analysis. According to Dr. Ziejewski, the weight and
distribution of the materials in the trailer did not affect his opinion because he "simply
accepts the fact that the legs didn't maintain the upright position of the trailer."
{¶24} Dr. Ziejewski confirmed that he performed no calculations to determine the
forces between the tractor and docked trailer. He admitted that he could not say whether a
new trailer would have collapsed under the same circumstances because he could not
perform those calculations without knowing the weight distribution of the contents of the
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docked trailer. He also did not know the specification of lateral forces that the docked trailer
was designed to withstand. He could not testify that the landing legs did not follow their
designed characteristics.
{¶25} During his deposition, Dr. Ziejewski expanded upon what he believed
happened before and after the crash. He believed that Shawn was probably surprised that
the king pin had not disengaged and opened the door of his tractor and was looking around,
asking "what happened" when the tractor impacted the docked trailer.
{¶26} Dr. Ziejewski believed that when the impact occurred, the trailer was lifted
around two to four inches off the ground and was resting on the tractor's fender/wheel and
was angled to the west. Dr. Ziejewski believed that one of the landing gear legs was on the
ground and one was off the ground, though there was no explanation at his deposition for
how he made this determination. Dr. Ziejewski stated that when Shawn exited the tractor,
a shift in weight in a westerly direction occurred, causing the docked trailer to slide off its
"perch" on the tractor's fender. The docked trailer then dropped 2-4 inches, the legs
collapsed, and Shawn was pinned.
{¶27} Dr. Ziejewski noted photographs of the tractor's driver door that showed marks
or scratches that were horizontal and then angled downwards at ten degrees. He testified
that this change in angle of the scratches or marks showed the landing gear legs collapsing.
{¶28} Dr. Ziejewski's opinion was that what occurred was a minor "side-swipe"
accident coupled with a ten-degree tilting of the docked trailer. Dr. Ziejewski believed that
what occurred was so minor that it should not have resulted in the landing gear collapsing.
{¶29} When asked whether, if the docked trailer had been empty, it would have
changed his analysis, Dr. Ziejewski responded, "No. I am basing my analysis on that scratch
pattern that we discussed. That's all." When asked if it was his opinion then that the trailer
would have collapsed even had it been empty, Dr. Ziejewski clarified that he did not know
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if an empty trailer would have collapsed or not. He then admitted that weight and distribution
of the docked trailer was a relevant factor, but that he did not know that information and
referred to his earlier testimony in which he had repeatedly said he could not perform
various force calculations without knowing the weight distribution of the trailer.
{¶30} As to how he arrived at the opinion in his written report that "[t]he trailer fell
due to the failure of the supporting legs, not as a result of contact with the tractor," Dr.
Ziejewski explained that if the trailer had collapsed towards the east (the direction that the
tractor was moving at impact), then his opinion would be that the collision with the tractor
caused the legs to collapse. But it "[w]ent to the west, and ten-degree tilt, this was enough."3
2. Timothy Bussard
{¶31} Julie also retained Timothy Bussard, a commercial transportation specialist
who worked at a forensic consulting firm. Bussard had once been a commercial truck driver
and the director of safety at several trucking companies.
a. Bussard's Written Report
{¶32} Bussard issued a written report that described his investigation and opinions
on whether the actions or inactions of Beauty or Royal caused or contributed to Shawn's
injuries and death. He wrote that he inspected the docked trailer, and specifically the
undercarriage area around the landing legs and found that it was "severely rusted and had
not been maintained" by Royal. Bussard further wrote that Beauty had created an unsafe
condition by allowing Royal to bring and leave a "dangerously defective trailer" on its
property.
{¶33} Bussard further believed that Beauty had failed to follow OSHA regulations as
3. The record is not entirely clear on what Dr. Ziejewski meant about the trailer collapsing towards the east or
west. We believe that this refers to the direction the trailer collapsed relative to the landing gear. That is, if
the trailer had collapsed towards the east, the landing gear would have oriented to the west, and vice versa.
The landing gear collapsed towards the east, and thus the trailer fell in the opposite westerly direction.
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well as nationally recognized standards of care related to its failure to use trailer jack stands,
which are portable jacks that can be placed underneath a parked trailer as another support
structure. Bussard wrote that if Beauty had placed a trailer jack stand underneath the
docked trailer, this "may have prevented the trailer collapse upon being struck." Bussard
wrote that Beauty's failure to use a jack stand was a contributing cause that led to the
incident.
b. Bussard's Deposition Testimony
{¶34} At his deposition, Bussard testified that he was not trained or certified in
accident reconstruction, metallurgy, on the effects of corrosion on the thickness or integrity
of steel or other metals and had no training in why steel components may fail. He added
that he did not know of any industry or manufacturing standards for lateral movement that
landing gear should be able to absorb. Bussard agreed that rust on a trailer is not unusual,
and he was unfamiliar with any guides or publications that would specify when landing gear
must be replaced or serviced due to corrosion. He did not know how much steel thickness
had been lost to corrosion on the docked trailer.
{¶35} Bussard clarified that he was not offering an opinion that the rust that he
observed on the underside of the trailer negatively affected the trailer's structural integrity.
He believed that scientific testing was available that could determine the structural integrity
of the trailer.
{¶36} Bussard believed that a new trailer's landing legs would not have buckled
under the same circumstances. His opinion was based on the condition of the
undercarriage and his review of the docked trailer's maintenance records. He also offered
that "these trailers are normally solid" and that the landing legs are "solid enough to withhold
a large impact, a lot of damage." He later added that in his experience, trailers have been
dropped "in a higher fashion than 4 inches."
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{¶37} Bussard did not know when the landing gear collapsed during the incident and
did not know what forces caused the landing gear to collapse. He agreed that the primary
purpose of landing gear was to support a trailer when in its parked position. Bussard agreed
that the trailer was loaded with 28,000 pound of scrap paper and cardboard and that the
legs had functioned properly while it was being loaded with that material. He also agreed
that the only factor that changed was Shawn's tractor striking the trailer and then the tractor
backing off it.
{¶38} Bussard conceded that Royal had inspected the docked trailer within the
previous 12 months and had complied with applicable Federal Motor Carrier Safety
Administration ("FMCSA") regulations.
{¶39} As for Beauty, Bussard stated that there were no FMCSA regulations
imposing an obligation to use jack stands. He also admitted that OSHA only recommended
jack stands, and that there no standards requiring their use. That said, he was critical of
Beauty for failing to use jack stands.
{¶40} Bussard stated that he had conducted no experiments involving crashing a
tractor into a docked trailer with a jack stand underneath it and agreed that there was no
way to know what would have happened had there been a jack stand underneath the
docked trailer.
{¶41} When asked to clarify what he believed to be the defect in the docked trailer,
Bussard stated that "it could have been the landing legs were not sufficient." (Emphasis
added.)
3. Dr. Ashley Dunn, Ph.D.
{¶42} Beauty retained Ashley Dunn, Ph.D., a mechanical engineer, to investigate
the accident.
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a. Dr. Dunn's Written Report
{¶43} In his report, Dr. Dunn wrote that Shawn drove his tractor into the docked
trailer while trying to disconnect his semi-trailer. Dr. Dunn believed that the docked trailer
maintained an upright position until Patterson reversed the tractor. The eventual collapse
of the docked trailer's landing gear resulted from the reversing of the tractor, which imparted
a horizontal force high above the ground. That lateral force, in turn, generated a "moment"
sufficient to overload the legs of the landing gear.
{¶44} Whether or not Shawn drove his tractor into the docked trailer, or the tractor
rolled into the docked trailer, Dr. Dunn wrote that the docked trailer and its landing gear did
not cause the accident or contribute to the accident. Nor did the collapse of the docked
trailer cause or contribute to Shawn's injuries. The docked trailer successfully supported
being loaded with about 28,000 pounds of scrap paper/cardboard. Therefore, Dr. Dunn
believed that the legs were functioning properly and as designed before the tractor hit the
docked trailer.
{¶45} As for Dr. Ziejewski's report and deposition testimony, Dr. Dunn believed that
Shawn exiting the tractor cab would not have deflected the tractor's suspension
significantly. If Shawn was exiting the cab at the time of the accident, his movement onto
the steps did not put any new weight on the tractor or cause it to disengage from the docked
trailer. Dr. Dunn believed that Dr. Ziejewski trivialized the collision forces between the
moving tractor (weighing around 34,000 pounds) and the docked trailer (with an
approximate weight of 40,000 to 50,000 pounds). Dr. Dunn contended that the structure of
the docked trailer, including landing gear legs, was not designed or intended to remain intact
following a vehicle crash.
{¶46} Dr. Dunn believed that it was speculative to say that the initial impact of the
tractor into the docked trailer resulted in the docked trailer being lifted enough to perch atop
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the left-front fender and steer-axle tire of the tractor. He believed that the left-front fender
and steer-axle tire would not support one end of the partially loaded docked trailer. Dr.
Dunn wrote that Dr. Ziejewski provided no scientific evidence, testing, modeling, or other
analysis that provided any support for his opinion that the docked trailer collapse did not
result from the contact with the tractor.
{¶47} As for Bussard's opinions, Dr. Dunn stated that because of the lateral forces
imparted upon the docked trailer during the collision and subsequent reversing of the
tractor, it was speculative to conclude that portable trailer jacks would have prevented the
collapse of the docked trailer.
b. Dr. Dunn's Deposition Testimony
{¶48} At his deposition, Dr. Dunn testified as to his belief regarding the chain of
events. He, like Dr. Ziejewski, agreed that it was more likely that Shawn drove the tractor
into the docked trailer. He found this more likely than the investigating detective's theory
that the tractor rolled into the docked trailer on its own because it would have required power
to move the empty trailer. He believed that after impacting the docked trailer, Shawn
probably attempted to back his tractor up, just enough so that he could exit the cab and get
partially out of the door. Then, Dr. Dunn believed, the tractor lurched forward on its own,
crushing Shawn between the door and the cab. Dr. Dunn explained that if Shawn had left
the tractor in reverse after backing up, then removed himself from the tractor controls, the
clutch may have disengaged itself and allowed the truck to roll forward.
{¶49} As to why he did not believe that Shawn's weight was significant in terms of
him getting out of the tractor cab, Dr. Dunn explained that the suspension system of this
tractor was statically and dynamically designed to support 50,000 pounds. Thus, Shawn's
weight of 400-plus pounds was not a significant addition to that suspension. But most
importantly, Shawn's weight was not an added factor to the suspension.
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E. Summary Judgment Motions and Trial Court Decision
{¶50} In March 2021, Royal and Beauty each moved for summary judgment, which
they supported with the filing of various depositions and other evidence. After the summary
judgment motions were fully briefed, the trial court issued a decision granting summary
judgment in favor of Beauty and Royal.
{¶51} The trial court found that the summary judgment evidence showed that the
proximate cause of Shawn's injuries and death was the lateral collision between Shawn's
tractor and the docked trailer, and that the rust on the docked trailer's landing gear was not
an additional proximate cause of Shawn's injuries and death.
{¶52} In reaching this conclusion, the trial court found that Julie had submitted no
evidence establishing that the rust on the docked trailer's landing gear was the proximate
cause of Shawn's injuries and death. The court observed that neither Dr. Ziejewski nor
Bussard performed any testing on the landing gear's structural integrity. The trial court
concluded that "without [such] tests and expert testimony it is impossible to conclude that
the amount of rust on the legs of this [docked] trailer was the proximate cause of the
accident." The court noted that Bussard stated that it "could have been" possible that the
accident was caused because the landing gear "were not sufficient." The court found this
testimony not sufficiently definitive.
{¶53} As for the existence of a duty of care, the trial court further found that it was
not foreseeable that the stationary docked trailer would cause injuries or death and thus
neither Beauty nor Royal owed Shawn a duty to warn him.
{¶54} Finally, the court held that "even if the Defendants were negligent, which the
Court concludes they were not, the negligence of [Shawn] clearly exceeded it, and
therefore, bars recovery."
{¶55} Julie appealed, raising two assignments of error.
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II. Law and Analysis
{¶56} This court reviews a trial court's summary judgment decision under a de novo
standard. Deutsche Bank Natl. Trust Co. v. Sexton, 12th Dist. Butler No. CA2009-11-288,
2010-Ohio-4802, ¶ 7. Summary judgment is appropriate under Civ.R. 56 when (1) there is
no genuine issue of material fact remaining to be litigated, (2) the moving party is entitled
to judgment as a matter of law, and (3) reasonable minds can come to but one conclusion
and that conclusion is adverse to the nonmoving party, who is entitled to have the evidence
construed most strongly in her favor. BAC Home Loans Servicing, L.P. v. Kolenich, 194
Ohio App.3d 777, 2011-Ohio-3345, ¶ 17, (12th Dist.), citing Zivich v. Mentor Soccer Club,
Inc., 82 Ohio St.3d 367, 369-370 (1998).
{¶57} The party requesting summary judgment bears the initial burden of informing
the court of the basis for the motion and identifying those portions of the record that show
the absence of a genuine issue of material fact. Dresher v. Burt, 75 Ohio St.3d 280, 292-
293 (1996). Once a party moving for summary judgment has satisfied its initial burden, the
nonmoving party "must then rebut the moving party's evidence with specific facts showing
the existence of a genuine triable issue; it may not rest on the mere allegations or denials
in its pleadings." Sexton at ¶ 7; Civ.R. 56(E).
A. Assignment of Error No. 1
{¶58} Julie's Assignment of Error No. 1 states:
{¶59} THE TRIAL COURT ERRED IN CONCLUDING THAT THE SOLE
PROXIMATE CAUSE OF MR. DAVIS' DEATH WAS THE INITIAL SIDESWIPE
COLLISION, RATHER THAN CONCLUDING THAT A JURY QUESTION EXISTED AS TO
WHETHER DEFENDANTS' ACTIONS AND INACTIONS WERE CONCURRENT
PROXIMATE CAUSES TO THE EVENTUAL COLLAPSE OF THE TRAILER THAT
PINNED SHAWN P. DAVIS.
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{¶60} Julie argues that the trial court erred in granting Royal's and Beauty's motions
for summary judgment. In Assignment of Error No. 1, Julie argues that the trial court erred
in its determination that Shawn's action of crashing into the docked trailer was the sole
proximate cause of his injuries and death. Julie does not dispute that Shawn caused the
accident that led to his injuries and death. Rather than disputing that Shawn's actions
caused the accident, she contends that the trial court failed to consider her expert's opinions
that the docked trailer's landing legs were — because of rust — defective and were an
additional proximate cause of Shawn's injuries and death.
{¶61} "In order to establish an actionable negligence claim, a plaintiff must establish
that (1) the defendant owed [the] plaintiff a duty, (2) the defendant breached that duty, and
(3) the defendant's breach proximately caused the plaintiff's injuries." Perelman v. Meade,
12th Dist. Warren No. CA2021-06-054, 2021-Ohio-4247, ¶ 15.
{¶62} "'"The proximate cause of an event is that which in a natural and continuous
sequence, unbroken by any new, independent cause, produces that event and without
which, that event would not have occurred."'"4 Towles v. MillerCoors, LLC, 12th Dist. Butler
No. CA2019-12-207, 2021-Ohio-34, ¶ 20, quoting Valentine v. PPG Industries, Inc., 158
Ohio App. 3d 615, 2004-Ohio-4521, ¶ 16 (4th Dist.), in turn quoting Aiken v. Indus. Comm.,
143 Ohio St. 113, 117 (1944). "Proximate cause 'contemplates a "probable" or "likely"
result, not merely a "possible" one,' and therefore, the issue of proximate cause is not
subject to speculation or conjecture." Orren v. BWF Corp., 12th Dist. Warren No. CA2013-
11-112, 2015-Ohio-62, ¶ 16, quoting Morgan v. Ramby, 12th Dist. Warren Nos. CA2010-
10-095 and CA2010-10-101, 2012-Ohio-763, ¶ 25.
{¶63} Here, Royal and Beauty satisfied their initial burden in summary judgment
4. We address duty and breach of duty in the second assignment of error.
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proceedings by submitting summary judgment evidence, including expert depositions and
layperson depositions demonstrating that Shawn's injuries and death were caused by his
own actions and that Julie had offered only speculation, not summary judgment evidence,
regarding her theory that the docked trailer's landing legs collapsed because of rust.
Remember, Julie does not dispute that Shawn caused the accident that led to his injuries
and death. Julie instead, relying on her experts' testimony, argues that she met her
reciprocal burden under Civ.R. 56(E) to demonstrate a genuine issue of fact on causation.
That is, Julie argues that she produced evidence of a different proximate cause for Shawn's
injuries, i.e., that the docked trailer's landing legs were "severely rusted and corroded," and
that the landing legs collapsed "because they lacked adequate structural integrity." Julie
attempts to rebut Royal and Beauty's summary judgment argument by arguing that, given
her experts' testimony about the inadequate structural integrity of the landing legs, there
are genuine issues of material fact related to proximate cause that should have prevented
the trial court from awarding summary judgment to Royal and Beauty. If Julie's experts had
testified in such a way that there were genuine disputes over material fact, we would agree.
But we have thoroughly reviewed Dr. Ziejewski's report and deposition testimony and
Bussard's report and deposition testimony, and we find that they do not, in fact, create
genuine issues of material fact barring summary judgment.
{¶64} We first turn to Dr. Ziejewski's written report and testimony. Dr. Ziejewski
testified that factors like the weight and distribution of scrap paper and cardboard in the
trailer were "relevant" to the trailer's collapse. Despite this acknowledgment of the factors
at play, Dr. Ziejewski testified that the speed of the tractor when it hit the docked trailer, the
weight of the docked trailer, the kind of forces at play during the collision, the weight of the
paper material in the docked trailer and its distribution in the trailer, and the amount of force
applied to the west leg of the trailer at the moment it collapsed were all irrelevant to his
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analysis. He explained that this information was unimportant because he "simply accept[ed]
the fact that the legs didn't maintain the upright position of the trailer." What is more, Dr.
Ziejewski admitted that it really did not matter to his analysis, one way or the other, whether
there was any problem with the landing legs:
Defense counsel: Would the weight or distribution have any
impact on your opinion?
Dr. Ziejewski: No. Because my opinion simply accepts
the fact that the legs didn't maintain the upright position of the
trailer. So whether or not there's something wrong with the leg,
or weight distribution was wrong, or too much weight, or one
side versus another, this is not of relevance to me. What's of
relevance to me is relatively mild contact, sideswiped contact,
and probably some lifting, a little bit of the trailer, resulted in that
collapse.
(Emphasis added.) Consistent with Dr. Ziejewski's admission that it was irrelevant to his
analysis "whether or not there's something wrong with the leg," he admitted more than once
during his deposition that he performed no investigation at all in order to determine the
structural integrity of the landing legs or the reason the legs collapsed.5 For example:
Defense counsel: Okay. Did you attempt to ascertain the
reason why the undercarriage or the landing gear failed on the
date of this accident??
Dr. Ziejewski: No, not why. It simply did fail, but the reason for
it, no.
{¶65} Dr. Ziejewski acknowledged that he could have performed scientific failure
testing on the landing legs and could have performed corrosion testing to determine the
effects of rust corrosion on the landing legs. He simply chose not to. He explained this
choice when he testified that when he was retained for this litigation, he was not asked to
5. Dr. Ziejewski also admitted that he performed no scientific analysis of the lateral forces at play when the
approximate 34,000-pound tractor impacted the docked trailer. This, as he explained repeatedly during his
deposition, was because he did not know the weight distribution of the docked trailer.
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assess the docked trailer's structural integrity:
Defense counsel: Okay. And again, you likewise were not
asked to evaluate the structural integrity of the [docked trailer],
correct?
Dr. Ziejewski: Correct.
{¶66} When defense counsel asked Dr. Ziejewski whether the result of the collision
would have been different if the docked trailer were replaced with a new trailer—that is, one
in which there was no rust or corrosion on the landing legs—he testified that he did not
know. More specifically, Dr. Ziejewski stated that it was "possible" that the same type of
collapse would have occurred with a new trailer, but he "personally" did not think the new
trailer would collapse. Dr. Ziejewski not only admitted that he did not conduct any analysis
to determine whether the result of the collision would have been different if the docked trailer
were replaced with a new trailer without rust, but he also testified that there was no way to
do this analysis because he lacked the necessary information about weight distribution
within the docked trailer:
Defense counsel: But you can't tell me [the docked trailer]
collapsed where a new truck trailer wouldn't have collapsed
under the same circumstances because these legs, for
instance, 10 percent weaker than brand-new legs, correct?
Dr. Ziejewski: Well, I cannot do this calculations [sic] by not
knowing the weight distribution. You will be making a bunch of
assumptions, which doesn't lead to anything. In other words, in
this situation, you cannot perform those kind of calculations.
They won't be reliable.
Defense counsel: And that's what I'm getting at. There's no
reliable scientific study you can point me to that says, this trailer
collapsed where another one wouldn't have based on these
legs?
Dr. Ziejewski: I don't know how to answer your question. Again,
I just expressed my opinion on that topic a number of times, and
I have nothing more to add.
{¶67} Dr. Ziejewski also testified that the force with which Shawn's tractor struck the
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docked trailer was a "minor interaction." But he said it was unnecessary to perform any
calculations to determine that the force was minor because he determined that the scrapes
and other damage on the trailer showed that the force was minimal. He also did not know
how many hundreds of pounds of force would be needed to break the tractor's fiberglass
fender, but he believed that "not much" force was needed.
{¶68} Dr. Ziejewski's written opinion concluded that the docked trailer collapsed due
to the "failure" of the landing legs. Dr. Ziejewski's testimony establishes that he did not
attempt to calculate the forces involved or whether the rust on the landing legs decreased
the structural integrity of the legs because his analysis simply presumed that the landing
gear were defective. In other words, Julie asks us to find that a genuine issue of material
fact exists based solely on Dr. Ziejewski's presumption. This cannot avoid summary
judgment, for reasons we will further explain below.
{¶69} We next turn to Bussard's written report and deposition testimony. Bussard
maintained that the docked trailer's landing legs were not properly maintained, and that if
they had been properly maintained then Shawn would not have died. That said, despite
blaming Shawn's death on the landing legs, Bussard admitted that he had no opinion on
whether the corrosion or rust on the landing legs had negatively impacted the structural
integrity of the legs. He admitted that an analysis of the legs' structural integrity was
"beyond my scope." He also admitted that the fact the legs collapsed did not signal Royal
or Beauty had violated any rules related to the legs.
{¶70} Bussard admitted that it is "not unusual" for rust to form on a trailer's
undercarriage and legs, and in fact it should be expected. Bussard also stated that while
he viewed the rust on the docked trailer's undercarriage and legs as extensive, this was his
own subjective, non-scientific opinion. Bussard admitted that he did not know how much of
the landing legs' metal was lost to rust, and that he was not offering any opinion that the
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rust appearing on the trailer negatively impacted the trailer's structural integrity. Finally,
Bussard was unable to identify any actual defect in the trailer or its landing gear; he simply
stated that it "could have been the landing legs were not sufficient" to prevent the trailer's
collapse. (Emphasis added.) In other words, Bussard only offered a possibility.
{¶71} Bussard offered generic testimony that he was aware of other trailers that had
not collapsed after being dropped from greater heights than four inches or that had not
collapsed after being impacted by tractors. He also stated his belief that a new trailer would
not have collapsed in the same situation. But Bussard offered only generic, non-specific
descriptions of other trailer collision incidents—descriptions having so little detail they do
not even rise to the level of "anecdotes"—in support of this belief, and Bussard admitted
that he had never seen a collision situation involving a "similar scenario" as that in this case.
Bussard's testimony was essentially an invitation to speculate that the landing gear of the
docked trailer must have been defective.
{¶72} When examining Dr. Ziejewski's and Bussard's written reports and testimony
in a light most favorable to Julie, her experts offered nothing more than speculation to
support their positions that the docked trailer's landing legs were deficient as a result of rust
corrosion. Mere speculation cannot create a genuine issue of material fact. See Holbrook
v. Kingsgate Condominium Assn., 12th Dist. Butler No. CA2009-07-193, 2010-Ohio-850, ¶
27, citing Schutt v. Rudolph-Libbe, Inc., 6th Dist. Wood No. WD-94-064, 1995 WL 136777,
*6 (Mar. 31, 1995) (finding expert testimony too speculative to create a genuine issue of
fact and noting that summary judgment on proximate cause is appropriate where evidence
of causation is so meager and inconclusive that a finding of proximate cause would rest on
speculation and conjecture); Gouhin v. Giant Eagle, 10th Dist. Franklin No. 07AP-548,
2008-Ohio-766, ¶ 12 (holding that despite export report, the court would have to rely on
speculation and inference stacking to find a genuine issue of fact). In addition, unsupported
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factual assertions and anecdotal allegations are insufficient to create genuine issues of fact.
Adkins v. Yamaha Motor Corp., U.S.A., 4th Dist. Lawrence No. 14CA2, 2014-Ohio-3747, ¶
17; DiPenti v. Park Towers Condominium Assn., 10th Dist. Franklin No. 19AP-384, 2020-
Ohio-4277, ¶ 25.
{¶73} These principles are well established, and we have applied them to expert
testimony in summary judgment cases many times. See Clarkwestern Dietrich Bldg. Sys.,
L.L.C. v. Certified Steel Stud Assn., Inc., 12th Dist. Butler No. CA2016-05-098, 2017-Ohio-
1091, ¶ 30 (affirming summary judgment when expert's testimony was speculative and did
not raise genuine issues of material fact); State Farm Fire & Cas. Co. v. Holland, 12th Dist.
Madison No. CA2007-08-025, 2008-Ohio-4436, ¶ 24-29 (affirming summary judgment to
defendant when plaintiff's experts testified about origin and cause of fire but relied on
assumptions not supported by the evidence, and noting that "a trial court may find an
expert's opinion unreliable where the expert lacks all of the necessary facts prior to
formulating his opinion"); Fink v. J-II Homes, Inc., 12th Dist. Butler No. CA2005-01-021,
2006-Ohio-3083, ¶ 30-31 (affirming summary judgment to defendant when plaintiff's expert
did not give the cause of the breakage of a window, and instead offered possible causes
for the breakage, and noting speculation as to causation "is not permitted in the law");
Millard v. Sisters of Mercy, 12th Dist. Butler No. CA98-10-216, 1999 WL 296754, *2 (May
10, 1999) (where plaintiff alleged that defendant negligently applied sealer to driveway and
failed to inspect the premises, we affirmed summary judgment to defendant, in part because
the expert's testimony was based on impermissible speculation and conjecture when expert
offered only theoretical explanations and conclusive statements); Goens v. Torco Cos., 12th
Dist. Butler No. CA89-06-092, 1990 WL 4259, *5 (Jan. 22, 1990) (affirming summary
judgment on plaintiff's negligence claim, which was based on a claim of negligent
inspection, when expert "could not say with certainty whether termites were present at the
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time of sale" and plaintiff relied on "speculation and conjecture" that because termites were
present in 1987, they must have been present in 1982); Commercial Union Ins. Cos. v. GE,
12th Dist. Clermont No. CA86-01-009, 1986 WL 7984, *2 (July 21, 1986) (affirming
summary judgment to defendant when plaintiff relied on speculation, without evidence to
support contention that fryer was cause of fire). As a result, we find that Royal and Beauty
satisfied their initial burden in summary judgment proceedings by showing that there is no
disputed issue of material fact. Meanwhile, Julie failed to satisfy her reciprocal burden
under Civ.R. 56(E) to demonstrate a genuine issue of material fact as to causation. There
is no genuine issue of material fact with regard to the proximate cause element of Julie's
negligence claims, and the trial court properly granted Royal and Beauty's motions for
summary judgment.
{¶74} Julie makes a few additional arguments about proximate cause that we will
briefly address. First, Julie argues that the trial court ignored a genuine issue of fact on
whether the impact was "significant" or "minor." She points to the opinions of Dr. Ziejewski,
who characterized the impact as "minor" and Dr. Dunn, who contended that semi-trailer
landing gear were not designed to withstand a "significant" impact. The severity of the crash
is ultimately irrelevant. Once Royal and Beauty met their summary judgment burden of
demonstrating that Shawn proximately caused his own death and that there are no genuine
issues of material fact with respect to causation, it was incumbent upon Julie to produce
evidence to show a genuine issue of fact as to whether the trailer was in a defective
condition and that the defective condition caused or at least contributed to the collapse.
Sexton, 2010-Ohio-4802 at ¶ 7. As explained above, she did not do so.
{¶75} Next, Julie cites Young v. Clark, 8 Ohio L. Abs. 172, 2d Dist. Franklin No.
1774, 1929 WL 2306 (Nov. 8, 1929), which she argues presents a similar case and required
the trial court to deny summary judgment. In Young, the defendant parked his vehicle and
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set the emergency parking brake before leaving the vehicle. Id. at *1. The vehicle was
subsequently "dislodged" from its parking space by the removal of a Ford parked next to it,
or when it was bumped by a Buick. As a result, the vehicle ran down a sharp grade on its
own momentum and struck and injured the plaintiff. After a trial, the jury found that the
emergency brake was not in proper repair and had it been, it would have held the vehicle
in place. Id.
{¶76} The appeals court found that from these facts, it was permissible and logical
for the jury to conclude that the defendant was negligent in parking his vehicle with
inefficient brakes and that in the exercise of ordinary care, he should have known that such
a vehicle could be released from its position and proximately result in an injury to someone.
Id. The court observed that the "brake would not and did not accomplish the result which it
was designed to effect" and that it was a jury question to determine whether in the exercise
of ordinary care the defendant should have anticipated that the accident could occur. Id. at
*2. The court also rejected the defendant's argument that it was the Buick driver's actions
that were the proximate cause of the accident. The court noted that there can be more than
one proximate cause of an accident, and the act of the Buick driver and the failure to have
effective brakes were both proximate causes of the accident. Id.
{¶77} Julie argues that like the brakes in Young, the landing legs in this case did not
accomplish the result which they were designed to effect because "the structurally defective
and corroded undercarriage and dolly legs did not support a mere 2-4 inch vertical drop
when the tractor-trailer shifted resulting in a complete collapse." Thus, Julie argues that
Royal's and Beauty's negligence partially contributed to the accident as concurrent
proximate causes.
{¶78} We do not find Young on point. Young was not a summary judgment case.
In Young the jury found that the brakes were ineffective. Here, however, and as described
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above, Royal and Beauty provided evidence establishing that there was no genuine issue
of material fact with regard to Shawn causing the accident nor with regard to the rusty
landing legs, and Julie did not present evidence that the rust on the undercarriage and legs
rendered the landing legs defective. Julie's experts offered only presumptions and
speculation regarding the landing legs and their level of corrosion, not specific facts
demonstrating a genuine issue of fact as to a defective condition. Sexton, 2010-Ohio-4802at ¶ 7.
{¶79} Finally, Julie notes that Bussard contended that Beauty's failure to use jack
stands was a contributing cause to Shawn's injuries. But again, Bussard was not an
accident reconstructionist, and he testified that there was no way to determine what would
have happened had jack stands been in place. Bussard also admitted during his deposition
that there were no regulations or standards requiring the use of jack stands. Therefore,
Bussard's suggestion about jack stands is only speculative and does not create any genuine
issue of material fact.
{¶80} Having reviewed all the summary judgment evidence, including the reports
and testimonies of Dr. Ziejewski and Bussard, we find that Royal and Beauty have
demonstrated the absence of a genuine issue of material fact as to proximate cause, while
Julie has not presented specific facts showing the existence of a genuine issue of material
fact as to proximate cause. Neither Dr. Ziejewski nor Bussard undertook any investigation
into the structural integrity of the landing legs. And there was no other evidence put forth
that would establish that the trailer was defective and that the collapse was potentially due,
at least in part, to the rust and potential corrosion on the docked trailer's landing legs, rather
than solely caused by the horizontal impact with the tractor and Shawn's negligence.
Without such evidence or testimony, the trial court correctly concluded there was no
genuine issue of material fact, and that the sole proximate cause of Shawn's injury and
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death was his own negligence. Reed v. Weber, 83 Ohio App.3d 437, 442 (1st Dist.1992)
(holding that the issue of proximate cause may be determined in summary judgment
proceedings as a matter of law if the summary judgment record demonstrates no genuine
issue of material fact that remains to be litigated). See Ornella v. Robertson, 14 Ohio St.2d
144, 151 (1968); Reese v. Minor, 2 Ohio App.3d 440, 441 (1st Dist.1981); Zawlocki v. Houtz,
40 Ohio App.2d 118, 123-124 (3d Dist.1974).
{¶81} The dissent argues that we have weighed the evidence, evaluated the relative
credibility of Dr. Ziejewski and Bussard as opposed to Dr. Dunn, and improperly decided
the question of proximate cause, which should be left to the jury. We agree that proximate
cause is normally an issue for the finder of fact to decide, but we disagree with the remainder
of the dissent's characterization of our analysis. As explained above, we simply find that
Royal and Beauty presented evidence demonstrating the absence of a genuine issue of
material fact and that Julie has not pointed to any evidence creating a genuine issue of
material fact with regard to proximate cause. Julie points to the testimony of Dr. Ziejewski
and Bussard with respect to the landing legs, but as we have explained they offer only
speculation regarding the condition of the landing legs. Such speculative testimony is not
evidence creating a genuine issue of material fact, and an appellate court may determine
the issue of proximate cause in the summary judgment context when there is no genuine
issue of material fact. ¶ 72 above (citing cases).
{¶82} Finally, the dissent focuses on Dr. Dunn's testimony, and faults us for
believing Dr. Dunn while not believing the other two experts. In fact, we make only one
brief reference to Dr. Dunn in our analysis above, and only then in the context of describing
one of Julie's arguments and concluding that that argument was irrelevant. ¶ 74 above.
The dissent further argues that there is a genuine issue of material fact because Dr. Dunn
opined that the docked trailer was not lifted in the air, but rather the tractor lurched forward
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on its own volition, causing the docked trailer to collapse. But while there may be testimony
supporting competing theories about the precise sequence of events leading to Shawn's
death, we are not called on in this case to decide the precise sequence of events. Nor
would the jury need to decide this question if we were to reverse and remand for trial.
Instead, here the parties agree that Shawn's negligence caused a series of events which,
by some mechanism, led to his death. Julie and the estate brought negligence claims based
on the theory that the docked trailer's rusty landing legs also contributed to Shawn's death.
Because Julie points to no summary judgment evidence—only speculation offered by Dr.
Ziejewski and Bussard—in support of her theory that the landing legs collapsed because of
the rust, she cannot prove proximate cause with respect to her negligence claim and
summary judgment is proper. Potentially disputed issues of fact related to Dr. Dunn's
testimony about the precise mechanism leading to Shawn's death are thus not genuine
issues of material fact. Wallace v. S. Ohio Med. Ctr., 4th Dist. Scioto No. 10CA3383, 2011-
Ohio-3570, ¶ 25, citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505(1986) (holding that substantive law identifies the material facts in a case and that "[n]ot
every factual dispute precludes summary judgment. Rather, only disputes as to the material
facts preclude summary judgment." [Emphasis sic.])
{¶83} We overrule Julie's first assignment of error.
B. Assignment of Error No. 2:
{¶84} Julie's Assignment of Error No. 2 states:
{¶85} THE TRIAL COURT ERRED IN CONCLUDING THAT DEFENDANTS WERE
NOT NEGLIGENT OR, ALTERNATIVELY, THAT THE NEGLIGENCE OF MR. DAVIS
CLEARLY EXCEEDED DEFENDANTS' NEGLIGENCE.
{¶86} In support of Assignment of Error No. 2, Julie reiterates many of her
arguments presented in support of Assignment of Error No. 1. To the extent Julie reiterates
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her arguments, we have already addressed those arguments above with respect to
Assignment of Error No. 1.
{¶87} That said, Julie does make two arguments in support of Assignment of Error
No. 2 that she did not make with respect to Assignment of Error No. 1. First, Julie argues
that the evidence, viewed in a light most favorable to her, proves that Royal and Beauty
had a duty to ensure the structural integrity of the docked trailer's landing legs and breached
that duty either by not inspecting the landing legs, or by not using a jack stand to provide
the docked trailer with additional support. In other words, while Julie only addressed the
proximate cause element of a negligence claim in her discussion of Assignment of Error
No. 1, she now addresses the other two elements—duty and breach of duty—in her
discussion of Assignment of Error No. 2. Second, Julie argues that the trial court erred
when it found that even if Royal and Beauty were negligent, Shawn's negligence exceeded
their negligence and therefore barred Julie's recovery.
{¶88} Even if we were to find, as Julie urges, that the trial court's holding about the
duty and breach of duty elements of negligence was in error, our holding as to Assignment
of Error No. 1—that is, that there is no genuine issue of material fact with respect to the
proximate cause element of her negligence claims—would still require that we affirm the
trial court's summary judgment decision. In other words, our holding as to proximate cause
requires that we affirm the trial court's decision, whether or not the trial court was correct
about duty and breach of duty. Julie's arguments about duty and breach of duty are moot,
and we therefore decline to consider those arguments. See Holcomb v. Holcomb, 12th
Dist. Clermont No CA2013-10-080, 2014-Ohio-3081, ¶ 28 (holding that defendant's failure
to establish a material fact as to duty rendered any argument concerning proximate cause
moot).
{¶89} Likewise, because we hold that there is no genuine issue of material fact and
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Julie cannot prove the proximate cause element of her negligence claims, Julie's argument
related to the trial court's comparative negligence holding is also moot and we need not
consider the second assignment of error.
III. Conclusion
{¶90} We hold that there is no genuine issue of material fact related to proximate
cause and, as a result, the trial court properly granted Royal's and Beauty's motions for
summary judgment. Julie's remaining arguments are moot.
{¶91} Judgment affirmed.
HENDRICKSON, J., concurs.
PIPER, P.J., dissents.
PIPER, P.J., dissenting.
{¶92} I respectfully dissent from an analysis of the summary judgment evidence that
determines the sequence of events, as they unfolded, isn't significant in determining who is
primarily responsible, and that expert opinions offered in summary judgment are not
accorded equal consideration. Respectfully, I find it inappropriate to discredit the
nonmoving party's experts without first analyzing the evidence the moving parties produced
in meeting their initial burden. With no analysis or details my colleagues simply conclude
the defendants' initial burden has been met. ¶ 73, 78, 81 above. Similarly, I disagree with
the majority's determination that plaintiff does not dispute what caused Shawn's death. ¶
63 above. With a battle of experts, and considering the evidence in favor of the nonmoving
party, it is possible for plaintiff to prove causation of Shawn's death is not attributed to
Shawn.
{¶93} Furthermore, I disagree with the judgment call that focuses only upon the
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opinions of plaintiff's experts and determines both are mere speculation. The insinuation
that the opinions of plaintiff's experts are meager and inconclusive is unwarranted. ¶ 72
above. If such an evaluation is due plaintiff's experts, then the same should be applied
defendants' expert. The experts disagree as to who ultimately is responsible for Shawn's
death. Since the opinions are based upon reviewing the same material (photographs,
witness descriptions, depiction of physical evidence, etc.) one opinion cannot be given more
weight than the other. Yet the defendants' expert is spared the microscope, where plaintiff's
experts are not. This creates an unlevel playing field.
A. CAUSATION
{¶94} I agree with my colleagues that normally causation is a question of fact to be
determined by a jury. I fail to see why this is not the typical case of experts disagreeing. A
genuine question exists as to whose negligence was the primary cause of Shawn's death—
his own, Royal's, Beauty's, or some combination thereof? We must examine the physical
evidence, along with the lay witness testimony, in conjunction with the experts' opinions. A
jury must resolve factual issues to determine which expert more reasonably explains the
cause of Shawn's death in order to determine who is primarily responsible.6
{¶95} Generally, the issue of causation is a question of fact "and cannot be resolved
by means of summary judgment." Arnett v. Mong, 12th Dist. Fayette No. CA2015-10-022,
2016-Ohio-2893 ¶ 18. Furthermore, "[w]hether the intervening act or cause constituted a
concurrent or superseding cause, and whether the intervening cause was reasonably
foreseeable by the original party guilty of negligence, present questions for submission to a
6. The majority's summary review of the events acknowledges that although there was an initial low impact
sideswipe, whether the fully loaded and docked trailer was somehow lifted, and if so how, is disputed by the
experts. Also disputed is when Shawn exited his tractor, and when, in the sequence of events, the docked
trailer collapsed. However, the reasoning of the majority concludes the expert opinions, although "competing"
do not need to be considered because the details of how the events unfolded is unimportant and need not be
determined. ¶ 72 above. Yet the parties disagree as to what caused the trailer to collapse.
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jury which generally may not be resolved by summary judgment." Cascone v. Herb Kay
Co., 6 Ohio St.3d 155, paragraph two of the syllabus (1983). "[T]he totality of the causal
negligence must be examined and is a question to be submitted to the jury whose duty it is
to apportion negligence." Case v. Norfolk & W. R. Co., 59 Ohio App.3d 11, 15 (6th
Dist.1988). Summary judgment is not appropriate where there may be a question of fact
as to whether the defendants' negligence may be greater than the negligent actions of the
plaintiff. Baldwin's Ohio Personal Injury, Section 7:16 (2022 Ed.).
B. DE NOVO REVIEW OF EXPERT OPINIONS
{¶96} Since a trial court's decision to grant summary judgment involves only a
question of law, an appellate court conducts a de novo review and "stands in the shoes of
the trial court." Cooke v. Sisters of Mercy, 12th Dist. Butler No. CA97-09-181, 1998 WL
221320, at *2 (May 4, 1998). A summary judgment analysis on a matter of law must not
weigh the evidence or judge the credibility of witness testimony. "[W]here the parties
present conflicting experts' opinion, the credibility of one expert opinion over another is not
a proper determination in ruling on a summary judgment motion." DiBlasi v. First Seventh-
Day Adventist Community Church, 11th Dist. Geauga No. 2013-G-3169, 2014-Ohio-2702,
¶ 32. When considering summary judgment motions, expert opinions are to be accepted
as true. Id. Sherritt v. Leath, 5th Dist. Stark No. 2021 CA 00094, 2022-Ohio-2367, ¶ 37
(With expert opinions to be accepted as true, "conflicting expert opinions regarding the
defendant's liability raise a genuine issue of material fact, precluding summary judgment").
C. SUMMARY JUDGMENT SHIFTING BURDENS
{¶97} Importantly, as the moving parties, the defendants have the initial burden to
produce evidentiary materials demonstrating the nonmoving party cannot produce evidence
of causation. Dresher v. Burt, 75 Ohio St. 3d 280, 285 (1996). Only after the moving party
meets its initial burden does the nonmoving party have a reciprocal burden to point to
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contrary evidence which supports their claim. Therefore, any analysis must begin with
examining the summary judgment material produced by the defendants, the parties moving
for summary judgment.
D. ANALYSIS
{¶98} The majority determines Shawn's estate points to no evidence of causation
which can be attributed to defendants, and analyzes the nonmovant's evidence opposing
summary judgment. ¶ 81-82 above. Notably, the same discussion is not first given to what
evidence the moving parties point to. While referencing plaintiff's reciprocal burden as the
nonmoving party, ¶ 63 above, the majority gives no analysis to the defendants' evidence
offered in satisfying their initial burden as the moving party. There is no explanation as to
what defendants "point to" to satisfy their initial burden demonstrating a reasonable jury
could not possibly determine the sideswiped trailer should not have collapsed as it did.
{¶99} Similarly, the majority's analysis fails to acknowledge the eyewitness factual
observations which support the opinions of Dr. Ziejewski, and the commercial transportation
specialist, Bussard. Both attributed the inadequacy of the docked trailer's stabilization as a
cause, offered reasonable opinions as to how the collapse occurred, and explained how
they determined sequence of events that ultimately caused Shawn's death. While asserting
it is not judging the credibility of the different experts and attributing weight to any particular
expert, the majority finds plaintiff has failed to meet her reciprocal burden. However, it
should have first determined whether the defendants met their initial burden.
{¶100} The majority scrutinizes the opinions of Dr. Ziejewski and Bussard. My
colleagues conclude that both of plaintiff's experts have no merit as to causation because
their opinions are "speculative". Yet while the conclusions of plaintiff's and defendants'
experts are different, their respective opinions are premised upon review of the same
evidence. There is no explanation why one is "speculative" and the other not.
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{¶101} Noticeably, the same scrutiny is not given to Dr. Dunn's testimony which
summarily concludes the docked trailer's stabilization was adequate and never left the
ground. Dr. Dunn reaches his conclusions with no testing, no calculation of collision impact
force, and instances of equivocal opinion like, "I think" the loaded docked trailer supports
were still in place. Some of Dr. Dunn's conclusions actually contradict eyewitness
perceptions of the events.
1. Defendants' Initial Summary Judgment Burden
{¶102} The defendants produced Dr. Dunn's testimony to support their theory as to
causation. Defendants produced Dr. Dunn's testimony in support of their initial burden in
moving for summary judgment. However, Dr. Dunn's testimony leaves many unanswered
questions as to the chain of occurrences which caused Shawn's death. As expected, Dr.
Dunn disagrees with plaintiff's experts which results in an often-observed battle of experts.
Interestingly, Dr. Dunn's conclusions do not give significance to unfavorable eyewitness
observations and to important circumstantial evidence from the scene. His testimony gives
no explanation for this. It would appear to be either from oversight or because he finds
such testimony not credible.
{¶103} For example, Dr. Dunn believes that Shawn was negligent in failing to
thoroughly detach the empty trailer he was delivering. However, Dr. Dunn does not explain,
despite Shawn's alleged initial negligence, why the trailer subsequently collapsed from a
slight lateral impact. Dr. Dunn, not having the benefit of instructions of law, gives no
application of concepts like intervening cause, superseding cause, or apportionment of
negligence. Dr. Dunn's assumption is that such concepts are not applicable.
{¶104} Waymire's testimony indicates that after the sideswipe Patterson caused the
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tractor to lurch forward several feet into the docked trailer.7 Patterson then backed the
tractor releasing Shawn; afterwards the docked trailer collapsed. Patterson acknowledges
he reversed the tractor, unpinning Shawn, thereby permitting Shawn to fall to the ground.
Upon Shawn becoming unpinned, he fell to the ground because the docked trailer had not
yet collapsed. The question then remains—why did the fully loaded and already docked
trailer subsequently collapse, particularly if its landing gear supports remained in place, as
Dr. Dunn suggests?
{¶105} Dr. Dunn assumes it was the lurching of the tractor on its own volition that
caused the docked trailer to eventually collapse but not because the trailer supports gave
out. This disputes eyewitness testimony that the docked trailer collapsed after Patterson
backed the tractor up and after Shawn was unpinned and fell to the ground. Dr. Dunn's
opinion involves numerous assumptions such as Shawn attempting to back the tractor up,
that the tractor lurched forward on its own, that Shawn left the tractor in reverse, and the
tractor clutch disengaged itself. None of these are inferences drawn from known facts; they
are assumptions in the absence of evidence.
{¶106} Dr. Dunn indicates that the docked trailer supports never left the ground, yet
gives no explanation founded in facts as to why the trailer collapsed. In other words, Dr.
Dunn does not address plaintiff's complaint that the landing gear supports were unsafe, had
been inadequately inspected, failed due to their condition, and should have been reinforced
with the use of temporary stabilizing jacks in the exercise of reasonable caution. Dr. Dunn
considers stabilizing jacks to be unnecessary because they are only recommended by
OSHA, not mandated. However, plaintiff did not argue it was negligence per se to not use
7. Dr. Dunn assumes the trailer lunged itself, with no driver, into the loaded docked trailer causing a "crash."
But a jury could reasonably determine Shawn is not liable for Patterson lurching the tractor into the docked
trailer, and beyond that, a reasonable jury could determine that a trailer with a safe support system would not
have collapsed.
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them, only that reasonable safety and due regard required their use.
{¶107} OSHA recommendations represent best practices – it is for a jury to determine
if such best practices were warranted. A reasonable jury could find that a docked trailer,
no longer attached to a tractor, fully loaded, and standing with its existing support system,
could foreseeably undergo some lateral shifting and that using OSHA recommended
temporary braces (reinforcing existing "landing gear" supports) would be prudent.
{¶108} The same tests plaintiff's experts are criticized for not performing, were also
not performed by Dr. Dunn. Dr. Dunn's testimony does not explain whether the existing
supports were adequate to absorb some limited amount of lateral movement or shifting, nor
does he explain the cause of Shawn's death. Yet one expert is deemed speculative and
the other is not. Dr. Dunn does, however, contend that the trailer supports are not designed
to remain intact following a vehicle crash. Whether this was in fact a vehicular crash as Dr.
Dunn describes it, or merely a low-speed sideswipe is something that falls within the
province of a jury.8
2. Dueling Allegations
{¶109} Unfortunately, my colleagues find that a jury's resolution of the details is
insignificant in determining causation. ¶ 82 above. Although plaintiff's experts suggest the
docked trailer was susceptible to collapse due to its condition, the majority implies that the
sole cause of Shawn's death was his failure to successfully unhitch his tractor from the
trailer he was delivering and that everything which occurs thereafter is his liability. ¶ 60
above. Without articulating what is meant by "the accident," the majority's de novo review
suggests it is undisputed Shawn is liable for the stationary docked trailer collapsing on top
8. Braces, as recommended by OSHA, are for stationary trailers and do not pertain to vehicular crashes.
They are added for the purpose of detached stationary trailer stabilization, not for preventing damage in
vehicular crashes.
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of himself. ¶ 60 above. Simultaneously, and somewhat inconsistently, the majority finds
the sequence of events is not material and the details don't need to be determined in their
analysis.
{¶110} My de novo review determines the cause of Shawn's death is very much
disputed. The defendants' summary judgment evidence does not meet their initial burden
in demonstrating that as a matter of law, a reasonable jury could not believe the stationary,
docked trailer was in an unsafe condition and shouldn't have collapsed on top of Shawn.
The only way such a conclusion can be reached is if the defendants' allegations are believed
and plaintiff's are not.
{¶111} While plaintiff's experts suggest rust was a contributing cause to the condition
of the supports (not the cause) being unsafe, they are criticized for not having the metal
supports scientifically tested as to strength. However, the moving party had no scientific
tests performed and cannot say rust wasn't a factor contributing to metal fatigue. This
leaves only dueling allegations which makes summary judgment inappropriate as a matter
of law. One side says the docked trailer supports were inadequate and shouldn't have been
without support braces. The other side says support braces weren't necessary suggesting
the docked trailer supports were intact and never left the ground.
{¶112} Despite the suggestions of Dr. Dunn's testimony, we know from an eyewitness
account that the docked trailer only collapsed after Patterson backed the trailer up. No one
indicated the docked trailer collapsed simultaneously as the tractor backed up (not even Dr.
Dunn). If the docked trailer would have collapsed simultaneously with Patterson backing
up the tractor, Shawn would have remained pinned and unable to freely fall to the ground
as the witnesses described. In other words, there was no testimony that Shawn stayed
pinned the entire time and continued to be crushed by the docked trailer as the tractor
backed up. The facts from eyewitnesses severely undermine Dr. Dunn's assumptions.
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{¶113} As a way of discrediting the opinions of plaintiff's experts, the majority finds
plaintiff's expert opinions are "speculative." ¶ 17, 22, 23, 26 above. I adamantly disagree.
Cases such as these are almost always proved, or disproved, with the use of circumstantial
evidence and inferences—which inferences should be deemed reasonable is a jury
determination. Both experts made inferences based upon their respective expertise and
from factual assessments derived from the evidence. If not considering plaintiff's experts,
then defendants' expert should not be considered either. If neither set of experts are
considered, we are left with just dueling allegations and summary judgment must not be
entered for either. Dresher v. Burt, 75 Ohio St. 3d 280, 285 (1996).
3. Battle of the Experts
{¶114} Characterizing inferences as "speculative" is a roundabout way of judging the
weight or credibility of the reasonableness of the inferences. In deciding a summary
judgment motion, an appellate court standing in the shoes of the trial court may not weigh
or assess the credibility of the evidence. DiBlasi, 2014-Ohio-270 at ¶ 32; Sherritt, 2022-
Ohio-2367 at ¶ 37. "Even the inferences to be drawn from the underlying facts * * * must
be construed in the nonmoving party's favor." Turner v. Turner, 67 Ohio St.3d 337, 341
(1993).
{¶115} In Walker v. Ford Motor Co., 8th Dist. Cuyahoga No. 100759, 2014-Ohio-
4208, ¶ 30-36, appellate review rejected arguments that an expert's opinion fell into the
realm of speculation and conjecture. The court noted that expert disagreements are simply
part and parcel of a battle of experts and "go to credibility of, and the weight to be given, an
expert's opinions, rather than their admissibility." Id. at ¶ 35. The court in Walker concluded
that reasonable minds could have reached more than one conclusion and that judgment as
a matter of law was inappropriate. Id. at ¶ 49. The majority's conclusion as to the state of
the evidence may be the same as a jury's conclusion, however, it is not the only conclusion
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that a reasonable jury could reach if considering all of the available evidence.
{¶116} Basically, Dr. Dunn believes something other than the inadequacy of the
docked trailer's support system caused the trailer to collapse. Yet, Dr. Dunn's criticism of
plaintiff's expert opinions is nothing more than a suggestion of disagreement. Dr. Dunn's
different characterizations and conclusions do not demonstrate the absence of a genuine
issue of material fact as to causation. Dr. Dunn merely suggests that since Shawn initiated
the initial event, he is responsible for everything that follows in the sequence of events.
However, we know the law does not operate the same in every case because the law is
applied uniquely to different facts and circumstances. Dr. Dunn's suggestion alone does
not meet defendants' initial burden, as the moving parties, to present evidentiary materials
demonstrating that the nonmovant, plaintiff, has no evidence capable of proving the
essential element of causation. Dresher v. Burt, 75 Ohio St. 3d at 285.
{¶117} But even though plaintiff had no reciprocal burden as the nonmoving party to
disprove Dr. Dunn's assumptions, plaintiff did reciprocate with sufficient opposing
evidentiary material. The eyewitness testimony, combined with the assessment of physical
evidence incorporated into the expert opinions, demonstrates evidentiary support of
causation. For example, Bussard testified to a reasonable degree of certainty a new trailer
would not have collapsed. A reasonable jury could infer a used trailer properly maintained
and adequately inspected for safety would not have collapsed from the impact. Bussard
expounded that if collapsing due to the force of the impact, the trailer would fall in the
opposite direction of the impact, not toward the direction of a forceful impact. Bussard's
commonsensical reasoning would permit a reasonable jury to conclude Dr. Dunn's opinion
has failed to consider significant factors.
{¶118} In Estate of Hall v. Akron Gen. Med. Ctr., 125 Ohio St.3d 300, 2010-Ohio-
1041, the court indicated "this case represents the classic battle between expert witnesses"
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and the trier of fact must weigh the evidence and decide which expert to believe. Id. at 308.
Where the summary judgment proceedings dispute who is the correct party responsible for
causing the injury, issues of credibility must be decided by the jury. Carter v. Vivyan, 10th
Dist. Franklin No. 11AP-1037, 2012-Ohio-3652, ¶ 21 (plaintiff only needed to present
evidence demonstrating a genuine issue of material fact regarding the proximate cause of
injury). Where the purpose of summary judgment is to filter out claims that cannot succeed
at trial (as a matter of law) it is error for the trial court to conclude the expert opinion was
not sufficient to survive summary judgment. Roberts v. Fraiser, 2d Dist. Montgomery No.
20989, 2006-Ohio-312, ¶ 13, 30 (proximate cause was a pivotal question and the
nonmoving party could rely on the opposing party's expert opinion.) 9
E. CONCLUSION
{¶119} At this stage of the proceedings, it is difficult to conclusively determine the
actual sequence of events. The sequence of events is material because it aids an
understanding of the step-by-step occurrences coming together to create the incident that
ultimately occurred—Shawn's death. The value of an expert opinion is founded upon the
validity of the facts and circumstances incorporated therein and ultimately believed by the
finder of fact. The difficulty in unraveling which facts and circumstances are to be believed
and which experts are believable, lies best in the hands of a jury, not dismissed by way of
summary judgment.
{¶120} With the facts and circumstances demonstrated within the record, there is a
viable claim that the unattached, fully loaded stationary trailer wasn't adequately inspected,
existed in an unsafe condition, and should have been temporarily braced to prevent
9. The battle of experts is often found in other aspects of negligence claims other than those dealing with
proximate cause. Opposing experts with differing opinions as to whether the standard of care was breached
falls within the province of the trier of fact to weigh. Gysegem v. Ohio State Univ. Wexner Med. Ctr., 10th
Dist. Franklin No. 20AP-477, 2021-Ohio-4496, ¶ 74.
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collapse due to minimal impact. Despite Dr. Dunn's insinuation to the contrary, a slow
speed lateral sideswipe, or impact, would not reasonably be expected to cause a trailer to
topple over, particularly in the direction of the sideswipe or impact. Furthermore, if a jury
believed Shawn acted negligently in detaching his empty trailer from his tractor, only a jury
can evaluate and apportion the degree of his liability.
{¶121} In a case such as this one, we are best reminded summary judgment is to be
used with caution resolving all doubts in favor of the nonmoving party. This is because it
precludes the nonmovant's access to a jury's determination upon a full presentation of the
evidence for resolution of disputed issues. State ex rel. Yost v. Settlers Walk Home Owners
Assn., 12th Dist. Warren No. CA2021-11-102, 2022-Ohio-3106, ¶ 24. Due to the nature of
summary judgment as a truncated proceeding, Ohio courts have routinely determined it
must be used "sparingly." Id.{¶122} Summary judgment is only appropriate upon a "tripartite demonstration,"
where: (1) there is no genuine issue as to any material fact; (2) the moving party is entitled
to judgment as a matter of law; and (3) that reasonable minds can come to only one
conclusion, and that conclusion is adverse to the nonmoving party who is entitled to have
the evidence construed most strongly in their favor of not having summary judgment
awarded against them. Cooke, 1998 WL 221320 at *2, citing Civ. R. 56(E) and Harless v.
Willis Day Warehousing Co., 54 Ohio St.2d 64, 66 (1978). The significance of that "tripartite
demonstration" has not been meaningfully applied in the granting of summary judgement
to defendants. In finding plaintiff has no evidence going to proximate cause, my concern is
for a decision which invades the province of a jury (regarding a question of fact) and denies
the plaintiff a full presentation of evidence.
{¶123} Therefore, I respectfully dissent from my colleagues deciding as a matter of
law, the plaintiff cannot prove causation attributed to the defendants. One expert opinion
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cannot be given more weight or credibility than another. If neither set of experts is to be
considered, then we are left with dueling allegations and summary judgment is
inappropriate. In regard to the trailer collapsing, what caused it, and who is responsible for
it — is clearly material, clearly disputed, and only to be revealed by determining the
sequence of the events that led to Shawn's death.
{¶124} I also do not find the second assignment of error as to comparative negligence
moot. Plaintiff's arguments as to comparative negligence, duty and breach of duty are well
taken for much of the same reasons as expressed herein addressing the first assignment
of error. Let the experts defend their respective opinions in open court before a jury. I find
plaintiff's assignments of error well taken and would reverse the trial court judgment
awarding summary judgment to the defendants.
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