Opinion
Appellate Case No. 28800
11-13-2020
RACHELLE COOPER Plaintiff-Appellant v. CHASE FOSTER Defendant-Appellee
JOHN A. SMALLEY, Atty. Reg. No. 0029540, 131 North Ludlow Street, Suite 1400, Dayton, Ohio 45402 Attorney for Plaintiff-Appellant JONATHON A. BECK, Atty. Reg. No. 0076709 & ANTHONY V. GRABER, Atty. Reg. No. 0095691, 130 West Second Street, Suite 1500, Dayton, Ohio 45402 Attorneys for Defendant-Appellee
Trial Court Case No. 2019-CV-1895 (Civil Appeal from Common Pleas Court)
OPINION
JOHN A. SMALLEY, Atty. Reg. No. 0029540, 131 North Ludlow Street, Suite 1400, Dayton, Ohio 45402 Attorney for Plaintiff-Appellant JONATHON A. BECK, Atty. Reg. No. 0076709 & ANTHONY V. GRABER, Atty. Reg. No. 0095691, 130 West Second Street, Suite 1500, Dayton, Ohio 45402 Attorneys for Defendant-Appellee HALL, J.
{¶ 1} Rachelle Cooper appeals from the Montgomery County Common Pleas Court's entry of summary judgment for Chase Foster on her claim for negligence. We agree with the trial court's conclusion that Foster's alleged negligence was superseded by the negligence of a third-party, so we affirm.
I. Factual and Procedural Background
{¶ 2} On April 29, 2017, Foster was driving his car south on I-75 through Dayton with his girlfriend, Kayli Coburn, who was sitting in the passenger seat. They were following their friends Rachelle Cooper and Cody Joyce. The two couples were heading to a car show. It had rained, and the road was wet. Near the Stanley Avenue exit, Foster's car hydroplaned, hit another vehicle, and spun around before coming to a stop on the right shoulder facing north, the driver side tight against the guardrail. Foster crawled out, but Coburn remained in the passenger seat. Cooper and Joyce soon realized what had happened, so they pulled over, parked on the right shoulder of the highway, and walked back to Foster's car. Coburn had a heart condition, so Cooper was either crouched in the open passenger door or sitting on the door sill with her feet on the ground and waited there with Coburn, to make sure she was alright. The four friends waited on the side of the interstate for the police to arrive.
{¶ 3} Around eight minutes after Foster's accident, Rachel Furlong came speeding along the interstate in the same direction the friends had been travelling. Furlong lost control of her car and collided with the right front passenger door of Foster's car. Cooper was still partially inside and sustained serious injuries that ultimately led to the amputation of her legs. Furlong's car's onboard computer showed that five seconds before the collision she was traveling at 78 mph, which was 23 mph over the speed limit, and she was charged with failing to control her vehicle. Cooper filed a lawsuit against Furlong. The parties settled for $100,000 in exchange for releasing Furlong from any further liability.
{¶ 4} On April 26, 2019, Cooper filed a complaint for personal injuries against Foster. She alleged that it was his negligence in failing to maintain control of his car that caused her injuries. Foster moved for summary judgment, and the trial court sustained the motion. The court concluded that Furlong's collision was an intervening and superseding event that broke any chain of causation between Foster's alleged negligence and Cooper's injuries.
{¶ 5} Cooper appeals.
II. Analysis
{¶ 6} The sole assignment of error alleges that the trial court erred by granting Foster's motion for summary judgment. We review a trial court's ruling on a summary-judgment motion de novo. Schroeder v. Henness, 2d Dist. Miami No. 2012-CA-18, 2013-Ohio-2767, ¶ 42. Under Civ.R. 56(C), a movant is entitled to summary judgment when the movant demonstrates "that there is no issue as to any material fact, that the moving party is entitled to judgment as a matter of law, and that reasonable minds can come to but one conclusion, and that conclusion is adverse to the nonmoving party." Miller v. Bike Athletic Co., 80 Ohio St.3d 607, 617, 687 N.E.2d 735 (1998).
{¶ 7} A claim for personal injuries requires the existence of a duty, the defendant's breach of that duty, and injury that is proximately caused by the breach. Wallace v. Ohio Dept. of Commerce, 96 Ohio St.3d 266, 2002-Ohio-4210, 773 N.E.2d 1018, ¶ 22. Here, the trial court in essence determined that even if Foster had breached a duty to Cooper, the breach did not proximately cause her injuries, because Furlong's negligence intervened and superseded Foster's negligence.
{¶ 8} Proximate cause ordinarily is established " 'where an original act is wrongful or negligent and, in a natural and continuous sequence, produces a result [that] would not have taken place without the act.' " Heard v. Dayton View Commons Homes, 2018-Ohio-606, 106 N.E.3d 327, ¶ 12 (2d Dist.). But a party can be relieved of liability if a "break in the chain of causation" occurs. Berdyck v. Shinde, 66 Ohio St.3d 573, 584, 613 N.E.2d 1014 (1993). An intervening and superseding act breaks the causal connection between the original party's negligence and the resulting injury. Leibreich v. A.J. Refrigeration, 67 Ohio St.3d 266, 269, 617 N.E.2d 1068 (1993). " 'Whether an intervening act breaks the causal connection between negligence and injury depends upon whether that intervening cause was reasonably foreseeable by the one who was guilty of the negligence.' " (Emphasis deleted.) R.H. Macy & Co., Inc. v. Otis Elevator Co., 51 Ohio St.3d 108, 110, 554 N.E.2d 1313 (1990), quoting Mudrich v. Standard Oil Co., 153 Ohio St. 31, 39, 90 N.E.2d 859 (1950). "[T]he test to be used to determine whether the intervening act was foreseeable and therefore a consequence of the original negligent act or whether the intervening act operates to absolve the original actor * * * 'is whether the original and successive acts may be joined together as a whole, linking each of the actors as to the liability, or whether there is a new and independent act or cause which intervenes and thereby absolves the original negligent actor.' " Leibreich at 269, quoting Cascone v. Herb Kay Co., 6 Ohio St.3d 155, 160, 451 N.E.2d 815 (1983).
{¶ 9} The issue here is whether Furlong's negligence was a reasonably foreseeable outcome of Foster's original accident or whether it was a new and independent act. The Ohio Supreme Court has said that "[o]ne may rightfully assume the observance of the law and the exercise of ordinary care by others, and action by him in accordance with such assumption, in the absence of notice or knowledge to the contrary, is not negligence." Swoboda v. Brown, 129 Ohio St. 512, 196 N.E. 274 (1935), paragraph eight of the syllabus. Based on this proposition, courts in Ohio have said that "[o]ne is permitted to assume that others will follow the law and exercise ordinary care. As a matter of law, one need not anticipate that another driver will violate the law and that a collision will occur." McDougall v. Smith, 191 Ohio App.3d 101, 2010-Ohio-6069, 944 N.E.2d 1218, ¶ 6 (3d Dist.), citing Hicks v. Prelipp, 6th Dist. Huron No. H-03-028, 2004-Ohio-3004, ¶ 10 (quoting Swoboda at paragraph eight of the syllabus).
{¶ 10} Here, a detective with the Dayton Police Department's Crash Reconstruction Unit testified in his deposition that he concluded that Furlong was at fault for the collision with Foster's car. He said that the computer in Furlong's car showed that five seconds before she hit Foster's car she was traveling at 78 mph, which was 23 mph over the speed limit. She was charged with failing to control her vehicle. The detective said that he did not consider charging Foster in connection with Furlong's collision.
{¶ 11} We conclude, as a matter of law, that Furlong's collision was not foreseeable. The subsequent collision was entirely Furlong's fault independent from the collision caused by Foster eight minutes earlier. A driver should not be held to anticipate that, while parked on the side of the road, not obstructing the free passage of other vehicles, his vehicle will be hit as a result of another driver's unlawful conduct. See Hicks at ¶ 13 (concluding as a matter of law that the defendant's negligence in rear-ending the plaintiff was not foreseeable because one has the right to assume that others will obey the law, where a third-party hit the defendant from behind while the defendant was lawfully stopped on the road waiting to make a turn).
{¶ 12} Two federal district courts applying Ohio law in situations similar to that here support our conclusion. In Progressive N. Ins. Co. v. City of Rocky River, N.D.Ohio No. 1:18 CV 524, 2019 WL 5394206, *6 (Aug. 16, 2019), Driver 1 collided with a stationary fire truck. About 40 minutes later and two miles behind the collision with the fire truck, a police officer was setting up flares and assisting to close access to the interstate on which the collision with the fire truck had occurred. The officer was struck and killed by Driver 2, who pleaded guilty to DUI. The officer's estate brought a negligence claim against Driver 1 and others. The district court granted summary judgment to Driver 1, saying that " '[a]s a matter of law, one need not anticipate that another driver will violate the law and that a collision will occur.' " Progressive at *6, quoting McDougall, 191 Ohio App.3d 101, 2010-Ohio-6069, 944 N.E.2d 1218, at ¶ 6. The court concluded that Driver 2's unlawful conduct was a new and independent act that superseded Driver 1's conduct causing the first collision, so Driver 2's striking the officer was not foreseeable.
{¶ 13} The district court in Wheeler v. Estes Exp. Lines, 53 F.Supp.3d 1032 (N.D.Ohio 2014), reached the same conclusion based on the facts in that case. One plaintiff ran out of gas and pulled his truck completely onto the shoulder. As another plaintiff (a tow-truck driver) was assisting, the defendant hit the disabled truck with his semi-truck. The plaintiffs brought a personal-injury action against the defendant semi-truck driver. The defendant argued that, even if he had been negligent, the plaintiffs' negligence in failing to place reflective triangles and failing to park the tow truck behind the disabled truck was also a proximate cause of the crash because the crash was a foreseeable consequence of the plaintiffs' negligence. Granting the plaintiffs' motion for summary judgment, the district court concluded that failing to place reflective triangles was negligent, but that that negligence was superseded by the intervening negligence of the defendant in striking the parked truck. The court found that the defendant had been negligent per se for a marked-lane violation and for failing to maintain an assured clear distance. The defendant's collision was not foreseeable, concluded the court, in part because "such finding would run counter to Ohio law, which holds drivers stopped on the shoulder 'need not anticipate that another driver will violate the law and that a collision will occur.' " Id. at 1041, quoting McDougall at ¶ 6. Therefore, the "negligent act of driving onto the shoulder and colliding into [the plaintiff]'s truck was unforeseeable as a matter of law." Id.
{¶ 14} We recognize that a defendant may be liable for harm caused by another actor if the defendant's acts created a "zone of danger" that increased the risk that the intervening act would occur. See Smith v. Hess, 2018-Ohio-3602, 108 N.E.3d 1266, ¶ 21 (2d Dist.). But here there was no chain of events that Foster set in motion that "unfolded in rapid succession in a continuous and unbroken fashion." Crosby v. Radenko, 2d Dist. Montgomery No. 24343, 2011-Ohio-4662, ¶ 56. Furlong's conduct was a new and independent act outside any zone of danger created by Foster. Her conduct interrupted any sequence set in motion by Foster's alleged negligence.
{¶ 15} We conclude as a matter of law that Furlong's collision with Foster's car was not foreseeable. Foster's alleged negligence may have furnished a condition that made the collision possible, making it true that had it not been for Foster's alleged negligence, Cooper would not have been at Foster's car when Furlong collided with it. But Foster was not the proximate cause of Cooper's injuries. " 'The "dust" had long since settled' " when Furlong came speeding along, lost control, and " 'created an altogether new hazard.' " Hess at ¶ 23, quoting Slayton v. Tri-County Mtge. & Invest., 7 Ohio Misc. 13, 16, 218 N.E.2d 643 (C.P.1966)
III. Conclusion
{¶ 16} The trial court properly entered summary judgment for Foster. Furlong's collision with Foster's car was not foreseeable as a matter of law. The collision resulting from Furlong's negligence was a new and independent act that superseded Foster's alleged negligence.
{¶ 17} The sole assignment of error is overruled. The trial court's judgment is affirmed. TUCKER, P.J. and FROELICH, J., concur. Copies sent to: John A. Smalley
Jonathon L. Beck
Anthony V. Graber
Hon. Dennis J. Adkins