Chapman v. Gardner

2020 Ohio 6717

• Court: Ohio Court of Appeals
• Decided: December 16, 2020
• Docket: C-200143
• Status: Published

Opinion

[Cite as Chapman v. Gardner, 2020-Ohio-6717.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

TRINA CHAPMAN, as Parent and : APPEAL NO. C-200143 Natural Guardian of Jorden Casey TRIAL NO. A-1900088 Chapman, a minor, :

Plaintiff-Appellant, : O P I N I O N.

vs. :

STARLETTA GARDNER, :

Defendant-Appellee. :

Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: December 16, 2020

O’Connor, Acciani & Levy, Elizabeth L. Acciani and Amanda L. Patton, for Plaintiff- Appellant,

Law Office of William J. Moran, Jr., and Krista M. Meyer, for Defendant-Appellee. OHIO FIRST DISTRICT COURT OF APPEALS

ZAYAS, Presiding Judge.

{¶1} Trina Chapman appeals the Hamilton County Common Pleas Court’s

judgment granting summary judgment in favor of Starletta Gardner in a case where

Chapman’s daughter Jorden Chapman was injured when she was struck by

Gardner’s vehicle. For the following reasons, we conclude that the trial court

properly granted summary judgment, and we affirm.

Factual and Procedural Background

{¶2} Trina Chapman, on behalf of her minor daughter Jorden Chapman,

filed a complaint against Starletta Gardner after her daughter was hit by a car driven

by Gardner. Her first claim asserted that “Gardner negligently, carelessly, and

without due regard for the safety of others operated her vehicle in such a manner as

to strike Jorden while she was attempting to cross West[wood] Northern [Boulevard]

in an unmarked crosswalk, and injured her.” The second claim asserted that Trina

was deprived of the services, physical comfort, companionship, care, and consortium

of her daughter.

{¶3} The following facts were established by depositions and exhibits.

{¶4} On April 24, 2017, Jorden Chapman was walking to her home at 2653

Westwood Northern Boulevard from Westwood Elementary at around 2:15 p.m. She

walked down Westwood Northern Boulevard to Tinaview Court. Westwood

Northern Boulevard has four lanes of travel, two in each direction. Tinaview Court is

a residential side street that dead-ends at Westwood Northern Boulevard. The

parking lot for the apartment complex where the Chapmans live is across from

Tinaview Court.

{¶5} According to Trina, Jorden called her to let her know she was almost

home. Trina went outside to the sidewalk in front of the apartment complex to wait

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for her daughter. Jorden was across the street on the sidewalk next to Tinaview

Court. Trina testified that she and her daughter looked both ways and did not see

any cars. She further testified that Jorden had crossed one lane of traffic when she

was hit by Gardner. According to Trina, Jorden made contact with Gardner’s front

bumper on the driver’s side. After she was hit, Jorden spun around 360 degrees, fell

next to Tinaview Court, and passed out. Trina stated that Jorden landed where she

started.

{¶6} An ambulance was called, and Jorden was unconscious when she was

transported to Children’s Hospital. Jorden had fractured her left ankle and was

discharged that day. She wore a boot for a few months and had physical therapy

from May to October in 2017.

{¶7} Jorden testified that she saw her mother across the street when she

was at Tinaview Court. Her mother waved at her to cross, and Jorden looked both

ways before crossing. Jorden started to walk, and immediately felt a big impact on

the left side of her body. She spun around when the passenger side of the car hit her

and landed on the sidewalk. Jorden did not remember anything after that except

hearing people scream and an ambulance arriving.

{¶8} Starletta Gardner testified that she was driving a 2008 Hyundai

Elantra up Westwood Northern Boulevard in the right-hand lane when the accident

occurred. Gardner estimated that she was traveling between 25 and 30 m.p.h. The

posted speed limit was 35 m.p.h. As Gardner approached Tinaview Court, she saw

Jorden standing on the corner and heard a woman shouting at her not to go into the

street, but Jorden darted out anyway. Gardner further explained that, “[Jorden]

darted out, but I slowed up when I [saw] her getting ready to dart out into the street.

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And that’s when I put my brakes on. That’s when she hit me.” Gardner testified that

her car was next to Jorden when she saw Jorden on the sidewalk. Jorden hit her

side-view mirror on the passenger side, but the mirror was flexible, so there was no

damage to her car.

{¶9} Gardner further testified:

Q.: How many steps into the roadway would you say that she was

before your car hit her?

A.: About two.

Q.: Two steps?

A.: Yes.

Q.: Okay. And how many – and how far back did you first see her leave

the curb?

A.: I was right there. It was - - it all happened at the same time.

Q.: Okay. Do you know how fast she took those two steps? Did it

seem fast?

{¶10} Trina entered the police report and several maps of the scene as

exhibits without objection. The police report stated that “pedestrian darted across

Westwood Northern Boulevard in front of [Gardner’s car], who was traveling west on

Westwood Northern Boulevard.” The diagram showed that the collision occurred

next to the curb in the right-hand lane. The report noted that there was no damage

to the vehicle and the impact area was the right front. The airbag did not deploy.

The contributing circumstances were listed as darting and improper crossing, and

the report noted that the motorist did not contribute to the circumstances.

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{¶11} Gardner filed a motion for summary judgment on both claims, arguing

that she had the right-of-way to proceed, she did not operate her vehicle in violation

of any law or ordinance, and that Jorden was negligent per se for attempting to cross

a street outside of a crosswalk in violation of R.C. 4511.48(A) and 4511.46(B). In

response, Trina alleged that Jorden was in an unmarked crosswalk, Gardner failed to

yield the right-of-way to her, and that Jorden successfully crossed almost two lanes

of traffic before she was struck.

{¶12} At the hearing, both parties agreed that Jorden was not in a marked

crosswalk. Trina argued that Jorden was in an unmarked crosswalk and that

Gardner had a duty to yield the right-of-way to the pedestrian in the crosswalk. In

the alternative, Trina contended that Gardner was negligent for failing to exercise

due care to avoid the collision. The trial court granted summary judgment finding

that Jorden failed to use a crosswalk at the time of the accident and that there was no

evidence of negligence on the part of Gardner.

{¶13} On appeal, Trina raises two interrelated assignments of error. She first

contends that the trial court erred in granting the motion for summary judgment as

there existed genuine issues of material fact as to whether Jorden was in an

unmarked crosswalk, whether Gardner failed to yield the right-of-way, and whether

Gardner was negligent in striking Jorden. In the second assignment of error, Trina

argues that the court did not consider all of the negligence arguments. For ease of

discussion, we will address the assignments of error together.

Standard of Review

{¶14} We review the granting of summary judgment de novo. Grafton v.

Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Summary judgment

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is appropriate when (1) there is no genuine issue of material fact, (2) the moving

party is entitled to judgment as a matter of law, and (3) the evidence, when viewed in

favor of the nonmoving party, permits only one reasonable conclusion and that

conclusion is adverse to the nonmoving party. Civ.R. 56(C); Evans v. Thrasher, 1st

Dist. Hamilton No. C-120783, 2013-Ohio-4776, ¶ 25.

{¶15} The initial burden is on the party moving for summary judgment to

demonstrate the absence of a genuine issue of material fact as to the essential

elements of the case with evidence of the type listed in Civ.R. 56(C). Dresher v. Burt,

75 Ohio St.3d 280, 292, 662 N.E.2d 264 (1996). If the moving party meets its

burden, the burden shifts to the nonmoving party to set forth specific facts to show

that there is a genuine issue of material fact. Id.; Civ.R. 56(E). “Trial courts should

award summary judgment with caution, being careful to resolve doubts and construe

evidence in favor of the nonmoving party.” Welco Industries, Inc. v. Applied Cos., 67

Ohio St.3d 344, 346, 617 N.E.2d 1129 (1993).

Law and Analysis

{¶16} To prevail on a negligence claim, the plaintiff must prove the existence

of a duty, breach of that duty, and an injury resulting proximately from the breach.

See Smith v. Bond, 7th Dist. Belmont No. 15 BE 0078, 2016-Ohio-5883, ¶ 14. Trina

contends that Jorden was in an unmarked crosswalk because Tinaview Court and

Westwood Northern Boulevard are both public highways that form a T intersection.

According to Trina, because Jorden was in an unmarked crosswalk, she had the

right-of-way, and Gardner’s failure to yield constituted negligence.

{¶17} In general, “a motor vehicle has the right to proceed uninterruptedly in

a lawful manner in the direction in which it is traveling in preference to any vehicle

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or pedestrian approaching from a different direction into its path.” Higgins v.

Bennett, 12th Dist. Clinton No. CA99-08-022, 2000 WL 253672 (Mar. 6, 2000),

citing R.C. 4511.01(UU)(1). Under R.C. 4511.48(A), “[e]very pedestrian crossing a

roadway at any point other than within a marked crosswalk or within an unmarked

crosswalk at an intersection shall yield the right of way to all vehicles * * * upon the

roadway.”

{¶18} The definition of “crosswalk” includes “[t]hat part of a roadway at

intersections ordinarily included within the real or projected prolongation of

property lines and curb lines or, in the absence of curbs, the edges of the traversable

roadway[.]” An intersection is “the area embraced within the prolongation or

connection of the lateral curb lines, or, if none, the lateral boundary lines of the

roadways of two highways that join one another at, or approximately at, right angles,

or the area within which vehicles traveling upon different highways that join at any

other angle might come into conflict.” R.C. 4511.01(KK)(1).

{¶19} The collision occurred on Westwood Northern Boulevard while

Gardner was traveling west. Jorden was standing at Tinaview Court, a side street

that dead-ends at Westwood Northern Boulevard, forming a T intersection. The

various maps entered as exhibits show that the curb lines and edges of Tinaview

Court end at Westwood Northern Boulevard. Because the edges of the traversable

roadway appear to end at Westwood Northern Boulevard, and no evidence was

submitted showing that the curbs, edges, or traversable roadway of Tinaview Court

extended beyond Westwood Northern Boulevard to establish a crosswalk, the trial

court correctly determined that Jorden was not in an unmarked crosswalk when she

was crossing the four lanes of Westwood Northern Boulevard. See Ball v. Stark, 10th

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Dist. Franklin No. 11AP-177, 2013-Ohio-106, ¶ 33 (concluding that absent any

evidence of curbs or boundaries of the alleged unmarked crosswalk, no factfinder

could determine an unmarked crosswalk existed). Therefore, Jorden had a duty to

yield the right-of-way to Gardner. See R.C. 4511.48(A).

{¶20} Next, Trina alleges that there was a genuine issue of material fact as to

whether Gardner exercised due care because she saw Jorden before striking her.

Generally, a driver has a duty to exercise “due care to avoid colliding with any

pedestrian upon any roadway,” and therefore, must exercise due care to avoid

colliding with a pedestrian even if the pedestrian is in the driver’s right-of-way in

violation of R.C. 4511.48(A). R.C. 4511.48(E). A driver “must exercise due care to

avoid colliding with a pedestrian in his right-of-way only upon discovering a

dangerous or perilous situation.” Deming v. Osinski, 24 Ohio St.2d 179, 180-181,

265 N.E.2d 554 (1970). Furthermore, pedestrians are “prohibited by law from

leaving the curb or place of safety and entering the right of way of a motor vehicle.”

R.C. 4511.46(B). “A driver need not look for pedestrians or vehicles violating his

right-of-way.” Id. (rejecting the argument that drivers with the right-of-way are

required to “look, look effectively and continue to look and remain alert”).

{¶21} Because Gardner had the right-of-way, whether summary judgment

was appropriate depends on whether or not she failed to exercise due care to avoid

colliding with Jorden when she discovered the child “was encroaching onto her right

of way.” Markley v. Knutson, 3d Dist. Marion App. No. 9-96-29, 1996 WL 546875,

*4 (Sept. 26, 1996). Gardner was traveling the posted speed limit and was not

violating any traffic laws. Gardner testified that she slowed down when she saw

Jorden on the sidewalk and slammed on her breaks when Jorden darted into the

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street. Gardner further testified that she was next to Jorden when Jorden darted

into the road and hit her side view mirror. The record established that the collision

occurred so quickly that Gardner could not stop. Jorden’s testimony is consistent

with Gardner’s testimony because she felt the impact immediately as she started to

cross the street. Moreover, the police report corroborated that the accident was due

to Jorden’s improper crossing and darting into the street.

{¶22} Trina did not submit any evidence to establish that Gardner failed to

exercise due care upon learning that Jorden was in her right-of-way. And there is

nothing in the record to show that Gardner violated her duty of care because Jorden

darted into the street when Gardner’s car was next to her, and Gardner immediately

slammed on her brakes when she discovered the dangerous situation. We conclude

that Gardner lawfully had the right-of-way and did not violate her duty of care.

{¶23} Next, Trina argues that a genuine issue of material fact exists in this

case as to Jorden’s location in the road when the collision occurred. However,

Jorden’s location on the road at the time of the accident does not create a genuine

issue of material fact because the evidence established that Gardner did not have

time to avoid hitting her. See Neu v. Nussbaum, 2015-Ohio-159, 27 N.E.3d 906, ¶ 33

(12th Dist.) (concluding that because the driver did not have time to stop, the

pedestrian’s location on the road did not create a genuine issue of material fact).

{¶24} Finally, Trina contends that a genuine issue of material fact exists as to

whether the accident was foreseeable and whether Gardner had the last clear chance

to avoid the collision because she was driving in a school zone which required a

heightened duty of care. The record contains no evidence that the collision occurred

in a school zone, and a review of the exhibits of the maps of the location of the

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collision show that Gardner was approaching a school sign, but had not passed the

school sign.

{¶25} Nonetheless, as previously discussed, Gardner did not have a duty to

“look, look effectively and continue to look and remain alert” for pedestrians

violating her right-of-way. Deming, 24 Ohio St.2d 179 at 180-181, 265 N.E.2d 554.

The record reflects that Gardner took proper action when she slammed on her brakes

when she saw Jorden enter the road and could not avoid the collision.

{¶26} Absent any evidence of negligence on Gardner’s part, we conclude that

no genuine issues of material fact remain in dispute and Gardner was entitled to

judgment as a matter of law. Accordingly, we overrule the first and second

assignments of error.

Conclusion

{¶27} Having overruled both assignments of error, we affirm the judgment of

the trial court.

Judgment affirmed. MYERS, and WINKLER, JJ., concur. Please note: The court has recorded its own entry this date.