COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59697 : PAMELA STOPAR, ET AL. : : : JOURNAL ENTRY Plaintiff-Appellants : : and -vs- : : OPINION DOMINIC CONSTANTINE : : : Defendant-Appellee : : : DATE OF ANNOUNCEMENT OF DECISION: JANUARY 30, 1992 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. 146467 JUDGMENT: Reversed and Remanded. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellants: For Defendant-Appellee: ALAN S. LEVINE, ESQ. JOSEPH H. WANTZ, ESQ. 1200 Illuminating Bldg. Meyers, Hentemann 55 Public Square Schneider & Rae Cleveland, Ohio 44113 2121 The Superior Bldg. Cleveland, Ohio 44114 - 1 - HARPER, J.: I. Appellants, Pamela Stopar and Eric Stopar, appeal from the judgment of the Cuyahoga County Court of Common Pleas which granted summary judgment for appellee, Dominic Constantine. For the reasons that follow, we reverse and remand. Pamela Stopar filed this action against Dominic Constantine as a result of an automobile accident that occurred on September 29, 1987, at approximately 5:46 p.m. on Interstate 77, near the Harvard Avenue exit. Mrs. Stopar stated that she was travelling at approximately 50 miles per hour when the vehicle in front of her suddenly changed to the middle lane. At that time, she saw a car in front of her which she thought was moving. When she realized that the car was not moving, she swerved to avoid contact with the disabled car and lost control of her vehicle. Mrs. Stopar stated in her deposition that she thought the vehicle was moving because there were no flashing lights or anybody outside the vehicle signalling that the vehicle was disabled. Richard Antonucci, who was an eyewitness to the incident, stated that Mr. Constantine did not have any flashing lights and that nobody was standing behind the disabled vehicle to warn other cars. Eric Stopar filed an action against Dominic Constantine for loss of his wife's services and consortium. - 2 - Mrs. Stopar stated that it was raining and visibility was low. Mr. Constantine testified that it was drizzling and damp. He stated that he did not activate his lights when he stopped his vehicle. The following colloquy took place between Mr. Constantine and Mr. Levine, Mrs. Stopar's attorney. "Q. When did you first feel you had a problem with the car? "A. Just before it happened. "Q. Was it a gradual drifting off to the left or was it the type of thing that just automatically swerved over to the left and hit the wall? "A. I had control as far as I knew. I looked for clearance, and all I knew was if I had to get somewhere and if something did happen at the moment, I responded just to get somewhere in a safe spot and check it out. "Q. So you actually had time then to react to get your car somewhere off the road, is that correct? "A. Looking -- yes, looking safely to see what I could do. "Q. You looked to your left, is that correct? "A. Yes. "Q. And you looked to your right, also? "A. Correct. "Q. And you chose to go to the left to try to get your car to a safe spot? "A. Wherever was easiest to get to. It banged up against the edge and I was safe enough to stay there. "Q. And the only reason you didn't go to the right berm is because you weighed and balanced your options and you went to the left instead? - 3 - "A. Wrong. "Q. Tell me why you went to the left instead of the right. "A. Because of the car itself. If it would veer that way or whatever, I went to the flow or whatever the car would do. I had no control of the car. I don't know exactly, you know -- "Q. I think I asked you along this line of questioning, whether or not you could turn your car to the right and -- "A. I just stated whatever the car would do. I didn't try doing it both ways. I just felt it was the safest spot to do whatever the car would do. "Q. My question was before, were you able to turn to the right at all? Was your car responding at all to the right? "A. I never even bothered to try it. As soon as something happened, wherever the car would flow or veer." III. Appellant's sole assignment of error is as follows: "THE TRIAL COURT ERRED IN GRANTING DEFENDANT-APPELLEE'S MOTION FOR SUMMARY JUDGMENT AS THERE EXISTS GENUINE ISSUES OF MATERIAL FACT TO BE DECIDED BY THE TRIER OF FACT." First, we hold that this is a final appealable order. Appellant, Eric Stopar's claim which is based on loss of consortium is a derivative action, therefore, summary judgment against appellant, Pamela Stopar, also applies to Eric Stopar. See Lynn v. Allied Corp. (1987), 41 Ohio App. 3d 392. - 4 - Civ. R. 56(C) provides in pertinent part: "*** Summary judgment shall be rendered forthwith if the pleading, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from such evi- dence or stipulation and only therefrom, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to have the evidence or stipulation construed most strongly in his favor. ***" The Ohio Supreme Court, in Norris v. Ohio Std. Oil Co. (1982), 70 Ohio St. 2d 1, held that: "'Summary judgment is a procedural device to terminate litigation and to avoid a formal trial where there is nothing to try. It must be awarded with caution, resolving doubts and construing evidence against the moving party, and granted only when it appears from the evidentiary material that reasonable minds can reach only an adverse conclusion as to the party opposing the motion. Petroff v. Commercial Motor Freight, Inc. (1960), 82 Ohio Law Abs. 433; Horvath v. Fisher Foods, Inc. (1963), 93 Ohio Law Abs. 182; Norman v. Thomas Emery's Sons, Inc. (1966), 7 Ohio App. 2d 41; Morris v. First Natl. Bank & Trust Co. (1970), 21 Ohio St. 2d 25. A successful motion for summary judgment rests on the two-part foundation that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Kwait v. John David Management Co. (1974), 42 Ohio App. 2d 63.' Vetovitz Bros., Inc. v. Kenny Constr. Co. (1978), 60 Ohio App. 2d 331, 332." A review of the record in the within case leads us to hold that there are genuine issues of material fact and that appellee is not entitled to judgment as a matter of law. Appellee, in his motion for summary judgment, and in his brief, cited R.C. 4511.21 as controlling. Appellee argues that - 5 - appellant, Mrs. Stopar, was negligent per se in her failure to maintain the assured clear distance and maintain a reasonable speed limit, we disagree. R.C. 4511.21(A) states in pertinent part: "No person shall operate a motor vehicle, trackless trolley, or streetcar at a speed greater or less than is reasonable or proper, having due regard to the traffic, surface, and width of the street of the highway and any other conditions, and no person shall drive any motor vehicle, trackless trolley, or streetcar in and upon any street or highway at a greater speed than will permit him to bring it to a stop within the assured clear distance ahead." Appellee also cites the case of Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St. 3d 35, where the Ohio Supreme court held that: "An automobile, van or truck stopped on a highway in a driver's path during daylight hours is, in the absence of extraordinary weather conditions, a reasonably discernible object as a matter of law. (McFadden v. Elmer C. Breuer Transp. Co. [1952], 156 Ohio st. 430, 46 O.O. 354, 103 NE2d 385, followed.)" The Smiddy case is distinguishable from the within case in several ways. In Smiddy, the accident occurred in the daylight hours. The weather conditions were bright and normal. The Smiddy court concluded: "We now hold that an automobile, van, or truck stopped on a highway in a driver's path during daylight hours is, in the absence of extraordinary weather conditions, a reasonably discernible object as a matter of law. Hence, Smiddy violated R.C. 4511.21(A) and was thus negligent per se." All the Smiddy court is saying is that where there is no condition making discernibility difficult, a driver who collides with an object on a highway in his driving path is in violation - 6 - of R.C. 4511.21(A) and thus is negligent per se. See Juage v. Brothers (1985), 16 Ohio St. 3d 1; Sabo v. Helsel 91983), 4 Ohio St. 3d 70; see also Tomlinson v. Cincinnati (1983), 4 Ohio St. 3d 66. In the within case both parties agree that it was raining and damp, making visibility difficult. Appellant stated that she did not see appellee's vehicle until the car in front of her changed lanes. She further stated that she initially thought that appellee's vehicle was moving until she drove closer to it. We hold, therefore, that appellee's argument of negligence per se is unpersuasive, and that whether appellee's vehicle was discernible from the facts of this case is an issue for the trier of fact. See Paulin v. John R. Jurgensen Co. (1982), 7 Ohio App. 3d 273; Tomlinson, supra. IV. The trial court's grant of summary judgment was improper in that it deprived the trier of fact the opportunity to determine whether appellee violated R.C. 4511.66 when his vehicle was left on the travelled portion of the highway unattended. R.C. 4511.66 states: "Prohibition against parking on highways. "Upon any highway outside a business or residence district no person shall stop, park, or leave standing any vehicle, whether attended or unattended, upon the paved or main traveled part of the highway if it is practicable to stop, park, or so leave such vehicle off the paved or main traveled part of said highway. In every event a clear and unobstructed portion of the highway opposite such standing vehicle shall be left for the free passage of other vehicles, and a clear view of such stopped vehicle shall be available from a - 7 - distance of two hundred feet in each direction upon such highway. "This section does not apply to the driver of any vehicle which is disabled while on the paved or improved or main traveled portion of a highway in such manner and to such extent that it is impossible to avoid stopping and temporarily leaving the disabled vehicle in such position." See also Smiddy, supra; Zawlocki v. Houtz (1974), 40 Ohio App. 118; Reiser v. Omar Baking Co. (1950), 107 N.E.2d 548. See Purdy v. Kerentoff (1949), 152 Ohio St. 152. Appellee, in answering why he did not move his car to the right of the highway, stated: "I just stated whatever the car would do. I didn't try doing it both ways." Question: "My question was before, were you able to turn to the right at all? Was your car responding at all to as something happened, wherever the car would flow or veer." Question: "So you actually had time then to react to get your car somewhere off the road, is that correct?" Answer: "Looking-- yes, looking safely to see what I could do." Construing the facts most strongly in appellants' favor, reasonable minds could conclude from these statements that appellee might have pulled his vehicle off the travel portion of the highway. Therefore, R.C. 4511.66 applies to the within case and summary dismissal of appellants' complaint without resolving whether appellee violated a statutory and common law duty of care pursuant to R.C. 4511.66 cannot be sustained. - 8 - V. Appellant, Mrs. Stopar, stated in her testimony that appellee failed to turn his flashing lights to warn oncoming vehicles that his car was disabled. An eyewitness to the accident, Mr. Antonucci, corroborated appellant's testimony. Appellee admitted that he was not outside flagging cars or warning them because he did not want to be injured. We hold that genuine issues of material fact exist whether appellee's conduct constituted negligence, notwithstanding the safety statutes. If reasonable minds could conclude that a reasonably prudent person would have taken action to warn approaching motorists of the danger presented by the unattended vehicle, rather than remaining inside it, failure to so warn is a breach of duty owed and it is, therefore, actionable. Davison v. Flowers (1930), 123 Ohio St. 89. See also Smiddy, supra at 38. VI. Appellee argues that even if he was negligent, appellants were still precluded from recovering because Mrs. Stopar's negligence was greater than his negligence. We agree with appellee's interpretation of R.C. 2315.19(A) that greater negligence of a party precludes him from recovery, however, we hold that the issue of whether one party's negligence is greater than the other party's is a jury question, which cannot be determined without first determining the proximate cause of the injury, which also is a jury question. - 9 - Therefore, in the within case, the issue of comparative negligence should be decided by the jury if it finds that appellee was negligent and that the negligence of both appellee and appellant, Mrs. Stopar, were proximate causes of the accident. Smiddy, at 40; see also W.W. Williams Co. v. Hudkins (1983), 10 Ohio Misc. 2d 19. Appellants' sole assignment of error is sustained. Accordingly, the judgment of the Court of Common Pleas is reversed, and the cause is remanded to that court for further proceedings consistent with this opinion. Judgment reversed and remanded. - 10 - This cause is reversed and remanded. It is, therefore, considered that said appellants recover of said appellee their costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. PATTON, P.J., and BLACKMON, J., CONCUR. SARA J. HARPER JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .