City of Lakewood v. El-Hayek

872 N.E.2d 1005, 142 Ohio Misc. 2d 129
CourtLakewood Municipal Court
DecidedDecember 29, 2006
DocketNo. 06 D 2509
StatusPublished
Cited by2 cases

This text of 872 N.E.2d 1005 (City of Lakewood v. El-Hayek) is published on Counsel Stack Legal Research, covering Lakewood Municipal Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Lakewood v. El-Hayek, 872 N.E.2d 1005, 142 Ohio Misc. 2d 129 (Ohio Super. Ct. 2006).

Opinion

CaeROll, Judge.

{¶ 1} This case arises out of a collision between a car and a motorized scooter on a sidewalk. The defendant was charged with failing to yield the right of way to the person on the scooter in violation of Lakewood Codified Ordinances [131]*131(“L.C.O.”) 371.07. The defendant entered a plea of not guilty, and the case was scheduled for trial. The trial was commenced before the court. At the conclusion of the prosecutor’s cases, the defendant moved for a judgment of acquittal pursuant to Crim.R. 29. The case is before the court on that motion.

{¶ 2} The facts in this case are taken from the testimony and other evidence presented at the trial. The facts set out are solely for the purpose of the pending motion for judgment of acquittal.

{¶ 3} The collision occurred on the sidewalk adjacent to the parking lot at the Huntington Bank on Detroit Avenue, Lakewood, Ohio. The defendant was attempting to drive out of the parking lot onto Elbur Avenue. The defendant stopped his car at the sidewalk before leaving the parking lot and entering onto the street. The defendant then proceeded forward onto the Elbur Avenue, colliding with Alban Yneshta, age 10, who was operating a motorized scooter on the sidewalk.

{¶ 4} The scooter was gas powered. Alban was operating the scooter on the sidewalk when he crossed the exit from the parking lot when the collision occurred. A single charge of failing to yield the right of way on a sidewalk was issued to the defendant.

{¶ 5} Section 371.07 of the Lakewood Codified Ordinances provides as follows:

The driver of any vehicle shall yield the right of way to any pedestrian on a sidewalk.

L.C.O. 371.07 is identical to R.C. 4511.441.

{¶ 6} The defendant raised numerous defenses at the trial. For the purpose of determining the motion for acquittal, the primary defense is that Alban was not a pedestrian within the meaning of the ordinance at the time of the collision. The issue, therefore, is the definition of a pedestrian as it relates to the duty of an operator of a motor vehicle.

{¶ 7} R.C. 4511.01(X) defines “pedestrian” as any natural person afoot. R.C. 4511.01 (FF) defines “sidewalk” as that portion of a street between curbed lines, or the lateral lines of a roadway, and the adjacent property lines intended for the use of pedestrians.

{¶ 8} These statutory definitions, however, by themselves, are not dispositive of the issue. Although a sidewalk is defined in terms of use by a pedestrian, there are other lawful users of a sidewalk. R.C. 4511.711 permits and anticipates the operation of a bicycle on a sidewalk. A motor vehicle would also have the duty to yield to a bicycle on a sidewalk or crosswalk. A person confined to a wheelchair has the same protections as a pedestrian for the purpose of a duty of an operator [132]*132of a motor vehicle to yield the right of way on a sidewalk or in a crosswalk. R.C. 4511.491.

{¶ 9} When interpreting a statute, a court’s principal concern is the legislative intent in enacting the statute. State ex rel. Francis v. Sours (1944), 143 Ohio St. 120, 124, 28 O.O. 53, 53 N.E.2d 1021. In determining that intent, “a court should consider the language used and the apparent purpose to be accomplished, and then such a construction should be adopted which permits the statute and its various parts to be construed as a whole and gives effect to the paramount object to be attained.” Humphrys v. Winous Co. (1956), 165 Ohio St. 45, 49, 59 O.O. 65, 133 N.E.2d 780. Thus, the court must first look to the language of the statute itself to determine legislative intent. Provident Bank v. Wood (1973), 36 Ohio St.2d 101, 65 O.O.2d 296, 304 N.E.2d 378.

{¶ 10} A statute is ambiguous when its language is subject to more than one reasonable interpretation. State v. Jordan (2000), 89 Ohio St.3d 488, 492, 733 N.E.2d 601. When a statute is ambiguous, the court must look beyond the words of the statute and construe it in a manner that reflects the purpose of the General Assembly. Cochrel v. Robinson (1925), 113 Ohio St. 526, 149 N.E. 871. In determining the intent of the General Assembly, the court may consider the objective of the statute and the consequences of any particular construction. R.C. 1.49(A) and (E).

{¶ 11} In the present case, the statutory definitions involving a duty to yield to someone on a sidewalk must be reconciled with other portions of the traffic code. It is a fundamental rule of statutory construction that statutes relating to the same subject matter be construed in pari materia to be harmonized and to give full application to the statutes. State ex rel. Thurn v. Cuyahoga Cty. Bd. of Elections (1995), 72 Ohio St.3d 289, 294, 649 N.E.2d 1205. See, also, State ex rel. Comm. to Repeal Ordinance No. 146-02 v. Lakewood, 100 Ohio St.3d 252, 2003-Ohio-5771, 798 N.E.2d 362. The various statutory provisions affecting a particular subject should be construed and applied to accomplish the manifest purpose of their enactment and give full force and effect to the legislative intent. Thiel v. Allstate Ins. Co. (1986), 23 Ohio St.3d 108, 111, 23 OBR 267, 491 N.E.2d 1121. The doctrine of in pari materia includes statutes relating to the same subject, even though enacted at different times. State ex rel. Pratt v. Weygandt (1956), 164 Ohio St. 463, 58 O.O. 315, 132 N.E.2d 191. Thus, different sections of the traffic code should be read in pari materia. See, e.g., Muenchenbach v. Preble Cty. (2001), 91 Ohio St.3d 141, 742 N.E.2d 1128; State v. Leichty (1993), 68 Ohio St.3d 37, 623 N.E.2d 48.

{¶ 12} The duty to yield turns on the scope of protection afforded to a person on a sidewalk as well as the manner in which the sidewalk is being used. [133]*133See Annotation, Who is a Pedestrian Entitled to Rights and Subject to Duties Provided by Traffic Regulations or Judicially Stated (1985), 35 A.L.R.4th 1117. The mere use of a wheeled device for transportation does not exclude a pedestrian or deprive that person of the duty to yield by a motor vehicle. A person operating a bicycle was held to have the same protections as a pedestrian in Schroeder v. Auto-Owners Ins. Co., Lucas App. No. L-03-1349, 2004-Ohio-5667, 2004 WL 2384350. The court of appeals in Schroeder, adopted a broader definition of a pedestrian:

“While it is true that a pedestrian is ordinarily understood to be one who travels on foot, nevertheless the mere circumstances, that he or she has attached to his or her feet roller skates, ice skates, or walks on stilts, uses crutches, or is without feet and propels himself or herself along, by means of a chair, or by some other mechanical device, does not clothe him or her, in a broad and general sense, with any other character than that of a pedestrian.”

Id., ¶ 32, quoting Eichinger v. Krouse (1929), 105 N.J.L. 402, 405, 144 A. 638.

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Bluebook (online)
872 N.E.2d 1005, 142 Ohio Misc. 2d 129, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-lakewood-v-el-hayek-ohmunictlakewoo-2006.