COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60957 : EWALD RESCHKE, ADMINISTRATOR : : JOURNAL ENTRY Plaintiff-Appellant : : and -vs- : : OPINION : MEROLA ENTERPRISES, INC., ET AL : : Defendants-Appellees : : DATE OF ANNOUNCEMENT SEPTEMBER 3, 1992 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. 163,530 JUDGMENT: Reversed and Remanded. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLANT: FOR DEFENDANTS-APPELLEES: JOHN F. NORTON WILLIAM A. VISCOMI 1202 Bond Court Building Gallagher, Sharp, Fulton Cleveland, Ohio 44114 & Norman 7th Floor, Bulkley Building 1501 Euclid Avenue Cleveland, Ohio 44115 -2- PATRICIA A. BLACKMON, J.: Ewald Reschke plaintiff-appellant, hereinafter Plaintiff timely appeals the granting of a motion for summary judgment by the trial court in favor of Merola Enterprises, Inc., James J. Tuttle and George Walsh defendants-appellees, hereinafter Defendants. For the reasons set forth below, we reverse and remand. On January 29, 1987, Barbara Reschke, while operating her sub-compact car southbound on State Route 53, was involved in a head-on collision with James Tuttle who was operating a tractor trailer northbound. The weather conditions were bad; visibility was poor; it was snowing; and the road was slippery. Reschke died as a result of the accident. The evidence presented in the record established that Sandra S. Yeagle was traveling in the lane behind Reschke. She testified that they were travelling at 25 m.p.h. when she observed Reschke's car swerve left of center and slide out of control. James Tuttle testified that he was operating his vehicle at 35 m.p.h. under the posted speed limit of 55 m.p.h. He testified that the weather conditions were poor and he first saw Reschke's vehicle when it was out of control. He attempted to avoid her by moving to the right, but collided head-on. He testified that the accident happened so abruptly that he was incapable of avoiding the collision. Further evidence from the record established that Ralph D. Barr, immediately prior to the accident, saw deer crossing State Route 53. After the accident an injured deer was found a short -3- distance from the scene of the accident. The deer had a broken left rear leg, which was marked with fresh blood. The tracks from the deer were followed by the State Highway Patrolman on the scene and discernable within 100 feet of the accident. Additionally, David L. Uhrich, Ph.D, a physicist, averred based upon reviewing the facts and his scientific certainty that James Tuttle had over seven seconds to stop, but did not attempt to avoid the accident until two seconds prior to collision. John R. Neal, an expert in truck collision, averred that based upon the facts that a reasonably competent truck driver would have been able to take his vehicle off the highway to avoid colliding with oncoming traffic. He also averred that if road conditions were so bad that he could not stop, the reasonable competent truck driver would have pulled off the road until conditions improved. In a second affidavit, he averred that Merola and Walsh ignored James Tuttle's poor driving record and improperly entrusted him with the responsibility of driving a tractor trailer. Plaintiff, as the Administrator of the estate of his daughter, Barbara Reschke, filed a lawsuit against Defendant. The complaint alleged wrongful death, and pain and suffering as a result of Defendants' negligence. After discovery was completed, Defendants filed a motion for summary judgment. The motion was granted and this appeal followed. Plaintiff's two assignments of error state: -4- SUMMARY JUDGMENT MAY NOT BE GRANTED WHERE THE UNCONTRO- VERTED AFFIDAVITS OF EYE WITNESSES RAISE ISSUES OF FACT, WHICH IF ACCEPTED BY A JURY, WOULD RESULT IN A FINDING OF ZERO PERCENTAGE OF PLAINTIFF'S NEGLIGENCE. SUMMARY JUDGMENT MAY NOT BE GRANTED WHEN THE UNCONTRO- VERTED AFFIDAVITS OF THREE EXPERT WITNESSES RAISE ISSUES OF FACT, WHICH, IF ACCEPTED BY THE JURY, WOULD RESULT IN A FINDING THAT DEFENDANTS' NEGLIGENCE WAS THE PROXIMATE CAUSE OF THE DEATH OF PLAINTIFF'S DECEDENT. Plaintiff's assignments of error are well taken. Civ. R. 56(C) provides that: A summary judgment shall not be rendered unless it appears from such evidence 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. *** In a negligence suit, summary judgment may be granted, if after construing the evidence most strongly in favor of plaintiff, a reasonable person could only conclude that the contributory negligence of the plaintiff was greater than the negligence of the defendant. Mitchell v. Ross (1984), 14 Ohio App.3d 75. Nonetheless, a Plaintiff's "negligence per se does not equal liability per se." Merchants Mutual Insurance Co. v. Baker (1984), 15 Ohio St.3d 316, 318. "Under R.C. 2315.19, the negligence of the defendant must be weighed against the negligence of the plaintiff." Crisan v. Lepore (Jan. 21, 1988), Cuyahoga App. Nos. 53288, 53289, unreported at 5. If there are unresolved genuine issues of material fact as to the share of -5- negligence attributable to either party, summary judgment is improper. Where conflicting evidence is presented as to any one element necessary to prove the violation of a statute, comparative negligence is a jury question. Junge v. Brothers (1985), 16 Ohio St.3d 1. In the instant case, there are two genuine issues of material fact; whether Barbara Reschke was per se negligent for driving left of center; and whether James Tuttle breached a duty of care in failing to avoid the accident with Barbara Reschke. In determining Barbara Reschke's negligence, the question of whether her traveling left of center was excused by a sudden emergency must be resolved. Driving left of center violates R.C. 4511.25. R.C. 4511.25 imposes a mandatory duty to drive on the right side of the road and an unexcused failure to comply with this duty constitutes negligence per se. Oechsle v. Hart (1967), 12 Ohio St.2d 29. A sudden emergency may excuse failure to comply with this mandatory duty. Spalding v. Waxler (1965), 2 Ohio St.2d 1. However, in order to be classified as a sudden emergency, the situation in question must constitute a sudden and unexpected occurrence or condition which demands prompt action without time for reflection or deliberation. Further, such an emergency must result from something over which the motorist had no control. A self-created emergency, one arising from a driver's own conduct or from circumstances under his control, will not serve as an excuse. E.g. Zehe v. Falkner (1971), 26 Ohio St.2d 258, 263. (citations omitted.) -6- The existence of ice and snow on the road is not an excuse beyond a driver's control. When poor weather conditions exist, poor road conditions for drivers are foreseeable. See, Oechsle. Therefore, poor road conditions alone do not constitute a sudden emergency. Nevertheless, Plaintiff claims Barbara Reschke's sudden emergency was a deer crossing the road. From the evidence, sub judice, the inference could be drawn that something made Barbara Reschke suddenly swerve left of center and never regain control of the automobile. She swerved abruptly as if trying to avoid something. Based on that same evidence and the fact that deer were crossing, one was found injured in the vicinity of the accident, and common knowledge that people do not abruptly swerve while driving in poor weather conditions for no reason, the inference could be drawn that Barbara Reschke collided with a deer crossing the road. Motorists Mut. Ins. Co. v. Hamilton Twp. Trustees (1986), 28 Ohio St.3d 13 (held that a jury may base its verdict partly on a reasonable inference drawn from facts in evidence, and partly on an inference drawn both from those same facts and from common human experience). The inference could also be drawn that Barbara Reschke's loss of control was only the result of poor weather conditions, but that and her contributory negligence are material questions of fact. Even if this court found Barbara Reschke was per se negligent, it would not preclude recovery by her estate under the -7- principles of comparative negligence. Case v. Norfolk & Western Ry. Co. (1988), 59 Ohio App.3d 11. The totality of the "causal" negligence must be examined. Case at 15 citing Anderson v. Ceccardi (1983), 6 Ohio St.3d 110, 115. Comparative negligence requires that we review both parties' negligence. Having reviewed Plaintiff's negligence, we now turn to Defendants' negligence. Plaintiff claims that James Tuttle's negligence was the proximate cause of Barbara Reschke's death. All motorists have a duty to observe the environment in which they drive. Additionally, motorists have a duty to exercise their rights in a reasonable manner upon becoming aware of a perilous situation. Hubner v. Sigall (1988), 47 Ohio App.3d 15, 17. (citations omitted.) While it is clear that James Tuttle had the right of way pursuant to R.C. 4511.01 (UU), he still had a duty to act in a reasonable manner when approaching a perilous situation. There is a genuine issue of material fact as to whether the accident occurred so suddenly that James Tuttle could not avoid it. Plaintiff's experts put his driving at issue. Therefore, James Tuttle's duty to act in a reasonable manner upon approaching a perilous situation is a question of material fact. Because there are questions of material fact as to the negligence of both parties, the comparative negligence of both parties is a jury question . See, Case, supra. Thus, summary judgment was improper. -8- Judgment reversed and remanded. This cause is reversed and remanded. It is, therefore, considered that said Appellant recover of said Appellee his 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. KRUPANSKY, J., CONCURS JOHN F. CORRIGAN, P.J., CONCURS IN JUDGMENT ONLY (SEE ATTACHED CONCURRING OPINION) PATRICIA A. BLACKMON 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 journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60957 : EWALD RESCHKE, ADMINISTRATOR : : : C O N C U R R I N G Plaintiff-Appellant : : O P I N I O N vs. : : MEROLA ENTERPRISES, INC., ET AL. : : : Defendants-Appellees : : DATE: SEPTEMBER 3, 1992 JOHN F. CORRIGAN, P.J., CONCURS IN JUDGMENT ONLY: I concur in the majority's conclusion that there is a genuine issue of material fact as to whether the negligence of the decedent is greater than that of the defendant. I cannot concur, however, with the majority's determination, in its discussion of plaintiff's first assignment of error, that under the facts presented and inferences from those facts, the decedent's conduct may be excused by a sudden emergency. First, with respect to evaluating the evidence presented, it must be noted that it is impermissible to stack an inference upon an inference in order to arrive at a conclusion. Cf. Motorists - 2 - Mut. Ins. Co. v. Hamilton Twp. Trustees (1986), 28 Ohio St.3d 13, syllabus. Secondly, with regard to the sudden emergency doctrine, it must be noted that a motorist faced with a sudden emergency must nonetheless exercise reasonable care under the circumstances. Francis v. Bieber (1967), 10 Ohio St.2d 65, paragraph two of the syllabus. In this matter, plaintiff relies upon evidence that deer were seen crossing the highway at around the time of the accident, and evidence that an injured deer was found a short distance from the accident in order to infer that: 1) the deer sustained its injury while crossing the highway; 2) the deer crossed the highway in front of the decedent; and 3) the deer caused the decedent to lose control of her vehicle, and the decedent did not voluntarily swerve in order to avoid striking the animal. Although the first inference clearly follows from the facts in evidence, the remaining inferences are impermissibly premised upon one another. Moreover, even assuming that the deer did cross in the decedent's path, there is simply no evidence that she acted reasonably under the circumstances presented. Accordingly, there is insufficient evidence to create a genuine issue of material fact as to whether the decedent's conduct is excused by a sudden emergency and her negligence should therefore be considered on the remand of this matter. .