Opinion
No. 91-11299-PR.
Decided March 17, 1993.
David P. Miraldi, for plaintiff.
Peter J. Krembs, Thomas P. Marotta and Larry Coey, for defendant Theodore P. Fujka.
Edward J. Cass, Kenneth Calderone and David Paul Bradley, for defendants/third-party plaintiffs Lake Erie Leasing and Rocque L. Torres.
Roy A. Hulme, for third-party defendant Velotta Company.
Lee Fisher, Attorney General, and Eric A. Walker, Assistant Attorney General, for third-party defendant Ohio Department of Transportation.
This action was originally filed in the Court of Common Pleas of Lorain County by Maria Torocsik ("Torocsik"), Executor of the Estate of John Torocsik, against Lake Erie Trucking (improperly sued as Lake Erie Leasing) ("Lake Erie"), Rocque L. Torres ("Torres"), and Theodore P. Fujka ("Fujka"). Torres and Lake Erie filed a third-party complaint for contribution against the Ohio Department of Transportation ("ODOT") and Velotta Construction Company, Inc. ("Velotta"), and removed the case to the Court of Claims of Ohio. Thereafter, Fujka filed a cross-claim for contribution against ODOT and Velotta.
Prior to trial, defendants/third-party plaintiffs, Lake Erie and Torres, and defendant/cross-claimant Fujka, settled the claim for wrongful death for $600,000. The release executed by plaintiff expressly released ODOT and Velotta in addition to Lake Erie, Torres and Fujka. Later, all claims for contribution against Velotta were dismissed with prejudice. Velotta paid Lake Erie and Torres $5,000 in exchange for that dismissal and release.
On October 5, 1992, this court tried the only remaining claim, namely, Lake Erie and Torres' third-party complaint for contribution against ODOT. After the evidence was completed, the court permitted the parties to file post-trial briefs with proposed findings of fact and conclusions of law.
The first issue for the court to address is whether Lake Erie and/or Torres have proved by a preponderance of the evidence that ODOT was negligent and that such negligence was a proximate cause of the accident that occurred on September 13, 1990. At approximately 4:00 a.m. John Torocsik was a passenger in an automobile driven by Fujka and died when Fujka's automobile was struck by a tractor-trailer driven by Torres in the course and scope of her employment with Lake Erie in the area of Interstate 490 (I-490) at the Interstate 90 (I-90) "split." Fujka was driving the automobile with Torocsik as his front seat passenger. They were going from Elyria to Cleveland, Ohio to go fishing. He missed the I-90 east exit and proceeded onto I-490 by mistake. He stopped and, after looking behind him and seeing no traffic, began to back up on I-490 intending to get on I-90. He stopped his vehicle with part of it being in both the center and east lanes of I-490. His vehicle was struck by Torres as she tried to pass the Fujka vehicle on the right or south side of I-490. A work construction zone began approximately one mile west of the I-90 and I-490 split. The posted speed limit in this zone was 45 m.p.h. It was well lighted. There were three signs west of the split informing motorists which lanes to drive in to access I-490. The first sign was located three-fourths of a mile west of the split. Additionally, there were three signs west of the split that informed motorists which lanes to drive in to access I-90. The first sign was also located three-fourths of a mile west of the split. In the "gore" area of I-90 and I-490 split, there was an arrow board flashing a series of bright yellow lights in addition to many barrels. The gore area is the tapered triangular area in the I-90 and I-490 split.
On the date of the accident, there were no "exit only" signs for I-490 and I-90. There were no other signs a driver going east on I-90 could see with arrows indicating in which lane a driver should be in to stay on I-90 until after the motorist passed under the West 25th Street Bridge which was approximately three hundred feet from the gore area. On the date of this accident, construction in the form of repaving was still in progress on the left lane of I-90 at the split.
Testimony also showed that I-90 was an eight-lane divided highway that was asphalt paved and straight with a slight downgrade for eastbound traffic. At the accident site, three lanes continued straight east for the I-490 exit. The right (or fourth) lane widened to a two-lane exit ramp for I-90 and I-71. Construction in the form of repaving was still in progress on I-90 at the split. However, I-90 was still handling two lanes of travel with one lane routed on the berm area. The left lane of I-90 was closed for travel. Overhead signs had been installed at the split which directed eastbound traffic onto the closed left lane of I-90. However, barrels and a traffic board were installed in the gore area with flashing lights directing traffic to move to the right lanes.
The project engineer for ODOT testified, and this court so finds, that I-490 was not supposed to open until the construction on I-90 was completed according to the plans and specifications of this project. However, a decision was made to open I-490 prior to the completion of the repaving of I-90.
This accident took place only one day after I-490 was opened. Many motorists who intended to stay on I-90 missed the I-90 exit and drove onto I-490, which continued straight ahead. However, there is no evidence that any other driver who missed I-90 at the split with I-490 backed up approximately fifty feet on I-490 attempting to get on I-90 by driving through the gore area.
Without question, this was a situation which confused many drivers and many of them cut through the gore area to stay on I-90 at this split. It was especially difficult for drivers in the north lanes of I-90 to stay on I-90 when the traffic was heavy because I-90 was bending to the northeast, whereas I-490 was going straight. However, this accident occurred at 4:00 a.m. when traffic was light. It was a little foggy, and the barrels and lights made drivers react quickly in a difficult traffic situation.
Lake Erie and Torres claim that ODOT did not properly "sign" the interchange and failed to design a proper traffic maintenance plan during the period that I-90 was being repaved. They allege that ODOT's signage of the interchange violated the Manual of Uniform Traffic Control Devices ("Manual"), and was a proximate cause of this accident.
The court questions the wisdom of opening I-490 prior to the completion of the repaving of I-90. However, the court concludes that ODOT, in making this decision, was exercising an executive or planning function involving the making of a basic policy decision which was characterized by exercise of a high degree of official judgment or discretion. Therefore, ODOT is entitled to sovereign immunity under R.C. 2743.02. See Reynolds v. State (1984), 14 Ohio St.3d 68, 14 OBR 506, 471 N.E.2d 776.
Regardless of why Fujka missed the I-90 highway and erroneously moved onto I-490, his actions in backing his vehicle approximately fifty feet and turning his vehicle in such a manner that his vehicle was in both the center and a part of the right lane of I-490 at the time of impact relieved ODOT from any possible legal responsibility for this accident. Fujka blatantly violated R.C. 4511.38 which states:
"No person shall start a vehicle, streetcar, or trackless trolley which is stopped, standing, or parked until such movement can be made with reasonable safety.
" Before backing, operators of vehicles, streetcars, or trackless trolleys shall give ample warning, and while backing shall exercise vigilance not to injure person or property on the street or highway.
" No person shall back a motor vehicle on a freeway, except in a rest area; in the performance of public works or official duties; as a result of an emergency caused by an accident or breakdown of a motor vehicle." (Emphasis added.)
Clearly, Fujka was negligent per se in backing his vehicle on a freeway. Buckeye Stages, Inc. v. Bowens (1935), 129 Ohio St. 412, 2 O.O. 401, 195 N.E. 859. Furthermore, while backing, he did not exercise vigilance not to injure any person or property on the freeway. Unfortunately, Fujka was so concerned about re-entering I-90 that he used very poor judgment in both the manner in which he backed his vehicle and his failure to comprehend that he was creating a very dangerous condition.
The court finds that Fujka's intervening act of backing up on the freeway under all the conditions existing at the time was an intervening act and thereby broke any causal connection between the injury and negligence, if any, on the part of ODOT, thus relieving ODOT from responsibility for this accident. Fujka's actions were not reasonably foreseeable and were a superseding cause to any possible negligence by ODOT. See Cascone v. Herb Kay Co. (1983), 6 Ohio St.3d 155, 6 OBR 209, 451 N.E.2d 815; Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St.3d 75, 77, 15 OBR 179, 180-181, 472 N.E.2d 707, 710.
Foreseeability of injury so as to create a duty owed to an injured party depends on whether a reasonably prudent person, under the same or similar circumstances, should have anticipated that injury to another was the probable result of performance or nonperformance of an act. Brockman v. Bell (1992), 78 Ohio App.3d 508, 605 N.E.2d 445, headnote three. Fujka's backing up on I-490 under all the attendant conditions was not the action of a reasonably prudent person, under the same or similar circumstances, and was not foreseeable. Judgment will be rendered in favor of ODOT.
Judgment for ODOT.
FRED J. SHOEMAKER, J., retired, of the Franklin County Court of Common Pleas, sitting by assignment.