Wilfong v. Batdorf

451 N.E.2d 1185, 6 Ohio St. 3d 100, 6 Ohio B. 162, 1983 Ohio LEXIS 787

• Court: Ohio Supreme Court
• Decided: August 3, 1983
• Docket: Nos. 82-944 and 82-1091
• Status: Published

Opinions

Clifford F. Brown, J.

These cases can be divided into two distinct issues. The first is whether the failure to give an audible signal by plaintiff-appellant Cindy Wilfong before attempting a passing maneuver was negligence per se and the proximate cause of the ensuing accident. The second, an issue common to both cases, is whether the doctrine of comparative negligence should have been applied as the standard by which to judge the conduct of the plaintiff and plaintiffs decedent.

I

After argument by defendant Batdorf s counsel, concerning the failure of plaintiff Wilfong to give an audible signal before attempting to pass, the trial court concluded that her failure to signal in an effective manner before overtaking the truck was, as a matter of law, the proximate cause of the accident. However, the mere failure of a driver of an overtaking vehicle to give an audible signal before passing a vehicle to be overtaken is not sufficient evidence to render that driver guilty of contributory negligence as a matter of law. See Christian v. Cleveland Ry. Co. (1932), 13 Ohio Law Abs. 208, at 211; Galliher v. Campbell (1954), 69 Ohio Law Abs. 378, at 384.

R.C. 4511.27 (A) requires the operator of a vehicle to “* * * signal to the vehicle or trackless trolley to be overtaken * * (Emphasis added.) There is no requirement for an audible signal in Subsection (A) of R.C. 4511.27. In contrast, Subsection (B) requires “* * * the operator of an overtaken vehicle shall give way to the right in favor of the overtaking vehicle at the latter’s audible signal * * These sections state separate requirements and the fact Subsection (A) does not mention an audible signal is significant.

The purpose of giving a signal before passing is to alert the vehicle being overtaken so that such vehicle will not move into the left lane where the overtaking vehicle is travelling.² The requirement that such signal be audible is not set forth in R.C. 4511.27 (A). Any signal which would be effective to alert a driver of a vehicle to be overtaken of the intention of an overtaking vehicle’s driver to pass is sufficient to satisfy Subsection (A).

It is a question of fact whether the signal given by an overtaking vehicle’s driver is sufficient. The use of a signal indicator and the moving of the overtaking automobile into the left lane could be construed as sufficient to fulfill the requirements of R.C. 4511.27 (A) to an operator of an overtaken vehicle who is properly keeping a check on traffic in his rearview mirror. Whether such signal by plaintiff was sufficient in this case is an issue for determination by the trier of fact. Also, whether the use of an audible signal would have been effective in this situation, when plaintiff wished to signal to defendant to yield the right of way, is a question of fact in light of the testimony in the record indicating that the defendant may have been unable to hear the horn blast.³

II

Contributory negligence has long been a bar to recovery by a plaintiff under the common law in Ohio. No matter what the degree of plaintiffs negligence, however slight, a plaintiff who was contributorily negligent could not recover damages. Tresise v. Ashdown (1928), 118 Ohio St. 307; McKinley v. Niederst (1928), 118 Ohio St. 334; Smith v. Lopa (1931), 123 Ohio St. 213.

The General Assembly acted to remove this unjust result when it adopted R.C. 2315.19.⁴ This statute abrogates the old common-law bar of contributory negligence and substitutes a comparative negligence standard. Under the comparative negligence standard a plaintiff may recover for injuries which flow from the negligence of a defendant even if that plaintiff is himself negligent to a degree. The recovery by the plaintiff is adjusted by the degree of his contributory negligence to the incident. This statute became effective on June 20, 1980.

Whether R.C. 2315.19 is to be given retrospective or only prospective application was addressed by this court in Viers v. Dunlap (1982), 1 Ohio St. 3d 173, and Straub v. Voss (1982), 1 Ohio St. 3d 182, wherein it was concluded that R.C. 2315.19 should be applied only to causes of action arising after June 20, 1980. Today we reject those holdings and hereby overrule Viers v. Dunlap and Straub v. Voss, supra.

In a four to three decision, the court in Viers, at page 174, grounded its defense of prospective application on Section 28 of Article II of the Ohio Constitution, which states that “[t]he general assembly shall have no power to pass retroactive laws * * *,” and the provision of R.C. 1.48 that: “[a] statute is presumed to be prospective in its operation unless expressly made retrospective.”

However, when a statute affects procedural rights, as opposed to substantive rights, the constitutional restraints on retrospective application are lifted. Kilbreath v. Rudy (1968), 16 Ohio St. 2d 70 [45 O.O.2d 370]; Denicola v. Providence Hospital (1979), 57 Ohio St. 2d 115 [11 O.O.3d 290]. A procedural or remedial statute should be applied to all actions which come to trial after the effective date of such statute where the cause of action arose before such effective date. The dissent in Viers implies that there is substantial support for the application of remedial laws, such as comparative negligence, retrospectively⁵ to any cause which comes to trial after June 20, 1980.

R.C. 2315.19 is remedial. It does not alter a defendant’s liability for his negligent acts, but merely changes the way a court is required to weigh a plaintiff’s negligence. A concept of partial recovery based upon the degree of plaintiff’s negligence has been substituted for the previous bar to any recovery by the plaintiff.

The definitional mire of procedural versus substantive has only delayed the application of the remedial benefits of R.C. 2315.19 to negligence actions. In enacting R.C. 2315.19, the General Assembly sought to modify the ancient judicially created doctrine of contributory negligence, by replacing it with an equitable comparative negligence standard. There is nothing which bars this court from modifying the common-law doctrine of contributory negligence to harmonize with R.C. 2315.19. What the courts can judicially create (contributory negligence), courts can judicially eliminate.

Contributory negligence has been allowed for too long to bar plaintiffs, who are only the slightest degree negligent, from recovering for the injuries they have sustained as a result of a defendant’s conduct. This court now adopts the comparative negligence standard set forth in R.C. 2315.19 as a modification of the common-law standard in Ohio. Such modification will avoid the harshness of an arbitrary date of enforcement of R.C. 2315.19 as set forth under the Viers rationale. No longer will discussions or arguments develop over whether R.C. 2315.19 is procedural or substantive. The characterization of R.C. 2315.19 as either will not alter the common law in Ohio which, as of today, recognizes a doctrine of comparative negligence consistent with R.C. 2315.19.

We therefore hold that the common-law bar of contributory negligence is no longer applicable in Ohio. The principle of comparative negligence, consistent with the provisions of R.C. 2315.19, applies in all negligence, actions tried after June 20, 1980, irrespective of when the cause of action arose, as part of the common law of Ohio. To the extent that Viers v. Dunlap and Straub v. Voss are inconsistent with this determination, they are overruled.

Accordingly, the judgments of the court of appeals are reversed and the causes are remanded to the trial courts for further proceedings not inconsistent with this opinion.

Judgments reversed and causes remanded.

Celebrezze, C.J., Sweeney and J. P. Celebrezze, JJ., concur. W. Brown, Locher and Holmes, JJ., dissent.

2 Employers Fire Ins. Co. v. Cliff Wood Coal & Supply Co. (1948), 85 Ohio App. 77, 83 [40 O.O. 68], states: “The purpose of the section requiring the giving of a signal by the overtaking vehicle is to warn the driver of the overtaken vehicle of the intention of the driver of the overtaking vehicle to pass so that he will not turn his vehicle to the left into the lane of traffic of the overtaking vehicle and thereby obstruct or interfere with its passage, and so, if necessary to permit the passage of the overtaking vehicle he will give way to the right * *

3 Plaintiff Wilfong testified that before she pulled out to pass the defendant, she signaled with her signal indicator, and that after she began the passing maneuver, she gave at least one audible signal with her horn.

4 R.C. 2315.19 (A) provides in pertinent part:

“In negligence actions, the contributory negligence of a person does not bar the person or his legal representative from recovering damages that have directly and proximately resulted from the negligence of one or more other persons, if the contributory negligence of the person bringing the action was no greater than the combined negligence of all other persons from whom recovery is sought. However, any damages recoverable by the person bringing the action shall be diminished by an amount that is proportionally equal to his percentage of negligence * *

5 See Kilbreath v. Rudy (1968), 16 Ohio St. 2d 70 [45 O.O.2d 370], at 72 and at paragraph two of the syllabus, as a method of “enforcement of rights or obtaining redress.” See, also, State, ex rel. Holdridge, v. Indus. Comm. (1967), 11 Ohio St. 2d 175 [40 O.O.2d 162], at 178 and at paragraph one of the syllabus; State, ex rel. Slaughter, v. Indus. Comm. (1937), 132 Ohio St. 537 [8 O.O. 531]; Smith v. New York Central RR. Co. (1930), 122 Ohio St. 45.