Opinion
No. 85-05177.
Decided July 15, 1988.
Thomas J. Travers, Jr., for plaintiff.
Anthony J. Celebrezze, Jr., Attorney General, and William J. McDonald, Assistant Attorney General, for the state.
Plaintiff, Miriam Jean Sorriento, in her capacity as administratrix of her daughter's estate, brought this action alleging that the defendant's negligent failure to keep State Route 170 (herein "S.R. 170") in a reasonably safe condition was the proximate cause of the accident which resulted in her daughter's death. Julie Sorriento, the decedent, was struck and killed by an automobile being driven by Donald Myers while she was walking in a southerly direction along the eastern berm of S.R. 170. The plaintiff alleges that the defendant, by allowing gravel to encroach onto the roadway from the berm, negligently caused the decedent to erroneously believe that she could walk on the gravel safely.
The defendant, Ohio Department of Transportation (herein "ODOT"), denies that it was negligent in maintaining S.R. 170 and denies that the condition of the berm was a proximate cause of the decedent's death. The defendant contends that the decedent died as a result of her own negligence in failing to diligently watch the oncoming traffic, and in failing to stay as far as practicable from the roadway.
This matter came to trial on May 26 to 27, 1988, pertaining to the sole issue of liability.
Findings of Fact
1. On May 30, 1983, at approximately 7:30 p.m., the decedent was walking with Shari Masti in a southerly direction along the eastern berm of S.R. 170;
2. On said date and time, Donald Myers was driving in a northerly direction on S.R. 170;
3. At a point approximately one hundred feet north of the S.R. 170-Brandon Avenue intersection, the automobile operated by Donald Myers struck Julie Sorriento. Julie subsequently died from the injuries she sustained in the accident;
4. Along the eastern berm of S.R. 170 exists a gravel-covered path that is used by pedestrians as a walkway. The evidence indicates that the width of the "gravel walkway" varied from four feet, four inches (4' 4") to six feet, five inches (6' 5") to two feet, seven inches (2' 7"). At the widest point the gravel extended one foot, eleven inches (1' 11") onto the northbound lane of S.R. 170;
5. The northbound lane of S.R. 170 measures eleven feet, eight inches (11' 8") in width;
6. The fatal accident occurred during daylight; visibility was good.
Conclusions of Law
ODOT admits that S.R. 170 is under its jurisdiction. Additionally, the defendant admits that it was responsible for the maintenance and repair of S.R. 170, including the berm. Further, it is undisputed that the berm of said roadway included the gravel walkway on which the decedent had been walking.
ODOT is not an insurer of the safety of the highway under its jurisdiction. It has only a duty of ordinary care, to maintain the highway in a reasonably safe condition for those travelers who are exercising reasonable and ordinary care for their own well-being. Knickel v. Ohio Dept. of Transp. (1976), 49 Ohio App.2d 335, 3 O.O.3d 413, 361 N.E.2d 486.
R.C. 4511.50(B) provides that "[w]here a sidewalk is not available, any pedestrian walking along and upon a highway shall walk only on a shoulder, as far as practicable from the edge of the roadway." A "berm" is defined as "a ledge or shoulder, as along the edge of a paved road." Webster's New World Dictionary (2 College Ed. 1980) 134.
In determining whether the defendant is liable to the plaintiff it is necessary to determine (1) whether the defendant negligently failed to keep S.R. 170 in a reasonably safe condition; (2) if the defendant negligently failed to keep the roadway in a reasonably safe condition, whether that negligence was a proximate cause of the decedent's demise; and (3) whether the defendant's negligence in failing to keep S.R. 170 in a reasonably safe condition was in excess of any negligence on the part of plaintiff's decedent.
Testimony at trial, by former ODOT employees, indicated that ODOT was aware of the existence of gravel on S.R. 170. Harold Perkins, ODOT's Mahoning County Supervisor from 1976 through April 1983, testified that the agency was aware of the problem of gravel encroaching onto S.R. 170. Perkins also testified that S.R. 170 was not cleaned frequently due to the unavailability of the necessary equipment. Finally, other documentary evidence, including photos which were part of ODOT's "photolog," shows the gravel which extended onto S.R. 170. Therefore, it has been established that there was a problem of gravel encroachment onto S.R. 170 since 1982 and that ODOT was aware of the problem. The court finds that ODOT had actual notice of the dangerous condition; at the least, ODOT had constructive notice that a problem existed in the area.
In light of the defendant's duty to maintain S.R. 170 in a reasonably safe condition for those travelers who are exercising reasonable and ordinary care for their own well-being, and the evidence of the defendant's knowledge of the gravel encroaching onto said roadway, this court finds that the defendant was negligent in failing to correct the problems created by allowing the gravel to remain on the roadway. Additionally, the court finds that the failure to correct the problems created by allowing the gravel to remain on the highway constituted a failure of the defendant's duty of ordinary care.
In view of the above conclusion, the next issue is whether the defendant's negligence was a proximate cause of the accident. In assessing the evidence offered on the issue of proximate cause, the court finds the testimony of Ohio State Highway Patrolman Jeffrey A. Thompson, the accident investigator, to be both credible and persuasive. After detailing the extent and findings of his investigation, Trooper Thompson concluded that the condition of the road, including a "rough area" on the berm and the gravel on the roadway, was the cause of the accident. According to Trooper Thompson, the "rough area" (pot holes and broken asphalt) was such that pedestrians would be deterred from walking in that area of the berm and of necessity would have to step onto the roadway. In addition, he indicated that, because there was no walkway east of the telephone pole, which is situated at the intersection of the northbound lane of S.R. 170 and the Campbell Electric parking lot, pedestrian traffic would have to walk west of the telephone pole. Since the telephone pole is situated on the eastern edge of S.R. 170, walking to the west of the telephone pole would of necessity mean walking onto the road surface of S.R. 170.
Additional evidence, concerning the issue of proximate cause, included the testimony of plaintiff's expert witness Bob Lyden, a civil engineer. Lyden testified that in his opinion the roadway with no edgelines, no striping, and gravel extended onto the surface of S.R. 170 amounted to a dangerous condition which could have been prevented.
ODOT contends that the decedent's failure to walk as far as practicable from the roadway and her failure to diligently watch the oncoming traffic was the cause of the accident which resulted in her death.
Based on the testimony of the only witness to actually investigate the accident scene, as well as other documentary evidence of the scene created by the existence of the gravel on the road surface, this court finds that the defendant's negligent failure to correct the problem of "gravel encroachment" was a proximate cause of the accident which resulted in the decedent's demise. The court finds that the existence of the gravel on the roadway unreasonably created the appearance of a walkway, intended for pedestrian traffic. The illusion thus created amounted to a dangerous condition, particularly for a child, as in the instant case.
However, it is necessary to consider whether the plaintiff's decedent was negligent and whether that negligence was a proximate cause of the accident. Counsel for plaintiff argues that because the plaintiff's decedent was only eleven years old she was incapable of negligence as a matter of law. In support of that argument, counsel cites Howland v. Sears, Roebuck Co. (C.A.6, 1971), 438 F.2d 725, 730, where it was held "that where a minor is between seven and fourteen years of age a rebuttable presumption arises that the minor involved is `incapable' of forming the necessary judgments for self care."
Defendant contends, however, that children in the state of Ohio are held to the standard of care of other children of that age and that the decedent's actions fell below the standard of care that should have been exhibited.
The Ohio Supreme Court has held:
"Children are not chargeable with the same care as persons of mature years. Although children are required to exercise ordinary care to avoid the injuries of which they complain, such care, as applied to them, is that degree of care which children of the same age, education, experience, of ordinary care and prudence, are accustomed to exercise under similar circumstances." Cleveland, Cincinnati, Chicago St. Louis Ry. Co. v. Grambo (1921), 103 Ohio St. 471, 134 N.E. 648, paragraph one of the syllabus. See, also, Cleveland Rolling-Mill Co. v. Corrigan (1889), 46 Ohio St. 283, 20 N.E. 466.
In Englehardt v. Philipps (1939), 136 Ohio St. 73, 74, 15 O.O. 581, 23 N.E.2d 829, 830, paragraph five of the syllabus, the Ohio Supreme Court held:
"While a child is required to exercise for his own safety only such care as children of like age, education, experience and ordinary prudence are accustomed to exercise under the same or similar circumstances, yet it may be assumed that a person of whatever age is able to appreciate the obvious risks incident to any sport or activity in which he may be able to engage with intelligence and proficiency, and must act accordingly."
Thus, in Ohio, children who are between the ages of seven and fourteen years are presumptively incapable of negligence. However, that presumption is rebutted where the evidence indicates that the child did not exercise such care as children of like age, education, experience, and prudence are accustomed to exercise under the same or similar circumstances. The evidence in the instant case indicates that the decedent was on the road surface, not the gravel, when she was struck. In addition, the inferences which may be drawn from the testimony of the decedent's companion, Shari Masti (which indicated that the decedent did not, through sound or motion, demonstrate that she saw the vehicle prior to being struck), show that the decedent did not engage in her walk with intelligence and proficiency. The court has also been persuaded by the evidence which indicates that the decedent was experienced in traveling, as a pedestrian, on S.R. 170. Therefore, the court finds that the decedent did not exercise such care as children of like age, education, experience, and prudence. Accordingly, the court further finds that the decedent was negligent in failing to watch for traffic and that her negligence was a proximate cause of the accident.
Having determined that both the defendant and the plaintiff's decedent were negligent and that the negligence of both were proximate causes of the accident it is necessary, pursuant to R.C. 2315.19, to compare the negligence of the plaintiff's decedent to that of the defendant. Counsel for the plaintiff argues that R.C. 2315.19 requires a comparison between the negligence of the plaintiff and the negligence of all other persons from whom recovery is sought. Thus, counsel contends that since recovery has been sought, and recovered, from the driver of the car and in view that recovery is now being sought from ODOT, plaintiff's decedent's negligence should be compared to the combined negligence of the driver and ODOT. ODOT, however, contends that the decedent's negligence should only be compared with its negligence, thus precluding an inquiry as to the driver's negligence.
R.C. 2315.19(B)(4) provides, in pertinent part:
"The percentage of negligence or implied assumption of the risk that directly and proximately caused the injury, death, or loss to person or property, in relation to one hundred percent, that is attributable to the complainant or the person for whom he is legal representative, and the percentage of negligence that directly and proximately caused the injury, death, or loss to person or property, in relation to one hundred percent, that is attributable to each party to the action from whom the complainant seeks recovery." (Emphasis added.)
In the instant case, the complainant seeks recovery from only one party, to wit, ODOT; the driver of the automobile (Donald Myers) is not a party to this action. Upon consideration of the parties' contentions and a review of the aforementioned statute, it is the court's opinion that since recovery was sought and recovered from Myers in another action, his negligence is not a proper subject for consideration in the determination of ODOT's negligence relative to the negligence of the plaintiff's decedent. Thus, the court agrees with ODOT's position on this issue.
After an exhaustive analysis of the evidence in this matter, the court is of the opinion that the plaintiff's decedent's negligent failure to adequately watch the approaching traffic constituted forty-nine percent of the direct and proximate cause of the accident; the defendant's negligent failure to remove gravel from the road surface constituted fifty-one percent of the direct and proximate cause of the accident. Therefore, since the court has determined that the percentage of negligence attributable to the plaintiff's decedent is less than the percentage of negligence attributable to the defendant, judgment is hereby entered in favor of the plaintiff, Miriam Jean Sorriento, Administratrix of the Estate of Julie Sorriento. A trial shall be scheduled in the near future pertaining to the issue of damages.
Judgment accordingly.
FRED J. SHOEMAKER, J., retired, of the Franklin County Court of Common Pleas, sitting by assignment.