COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68002 : JANET M. STROTHER : : : JOURNAL ENTRY Plaintiff-Appellant : : and -vs- : : OPINION SUSAN FRIED : : : Defendant-Appellee : : : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 20, 1995 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-254987 JUDGMENT: Reversed and Remanded. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellant: For Defendant-Appellee: JAMES R. LEBOVITZ, ESQ. JUDSON J. HAWKINS, ESQ. JOEL LEVIN, ESQ. KUEPPER, WALKER, HAWKINS NURENBERG, PLEVIN, HELLER & CHULIK & McCARTHY 480 Skylight Office Tower 1st Floor, Standard Building 1660 W. 2nd Street 1370 Ontario Street Cleveland, Ohio 44113 Cleveland, Ohio 44113-1792 - 2 - KARPINSKI, J.: Plaintiff-appellant Janet Strother appeals from an order of the trial court granting summary judgment in favor of defendant- appellee Susan Fried in this personal injury claim. This case involves an incident that occurred on July 12, 1991. On that date, plaintiff and her eight-year-old son were riding their bicycles on the sidewalk approaching 2250 Barrington Road in University Heights, Ohio. Sean was riding a few feet in front of his mother. At the same time, defendant was backing her car out of her driveway located at 2250 Barrington Road. On the passenger side of defendant's vehicle, the driveway was lined with hedges, which obstructed the view of the driveway from the sidewalk. Defendant testified that she saw plaintiff and her son riding their bikes along the sidewalk while she was backing out of the driveway. In her affidavit in support of her motion for summary judgment, the defendant said, "Seeing the Plaintiff and her son, I brought my vehicle to a stop at the point of intersection between my driveway and the sidewalk." She came to a complete stop, defendant averred, before Mrs. Strother, who was allegedly twelve to twenty feet from this intersection, saw her vehicle. She further claimed that she stopped her vehicle, a 1984 Oldsmobile Delta, right before the sidewalk, although in a deposition she admitted that maybe an inch or two of the rear bumper extended over the sidewalk. - 3 - Plaintiff claims that she did not see the defendant's car until it was right in front of her because the protruding hedges obstructed her view. She stated that the car extended over half of the sidewalk and that the sudden emergence of the car caused her to apply the brakes of her bicycle quickly and to fall, injuring her knee. In her deposition plaintiff repeatedly stated that the car was in front of her when she fell: Q And how did you come to fall? A I just saw the car moving in front of me and I hit brakes and I fell off the bike. * * * Q ***where was her vehicle when you first saw it? A Let me just say this, it happened so quickly, that she was right there in front of me when I just slammed on brakes. * * * A I didn't see her until she just pulled out in front of me. (Depo. 30, 31, 34.) Both parties agree that defendant then exited her car to see whether the plaintiff was hurt and she subsequently loaded plaintiff's bicycle in her trunk and offered to drive plaintiff home. Plaintiff then entered the car through the passenger side. Plaintiff filed a complaint in Cuyahoga County Common Pleas Court, to which an answer was filed. Thereafter defendant filed a Motion for Summary Judgment, which the trial court granted. Plaintiff timely appealed to this court raising only one assignment of error: THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT AS GENUINE ISSUES OF MATERIAL FACT EXIST. - 4 - Plaintiff argues that summary judgment should not have been granted, because the issues as to where the defendant stopped in relation to the sidewalk, and whether plaintiff was more negligent than defendant still exist. We find plaintiff's assignment of error to have merit. Defendant claims she stopped her vehicle at the edge of the sidewalk or maybe an inch or two over the sidewalk; plaintiff claims, however, that the vehicle did not stop until it extended over half the sidewalk. Revised Code 4511.431 specifies the duty of emerging cars: The driver of a vehicle or trackless trolley emerging from an alley, building, private road, or driveway within a business or residence district shall stop the vehicle or trackless trolley immediately prior to driving onto a sidewalk area extending over the alley, building entrance, road, or driveway, or in the event there is no sidewalk area, shall stop at the point nearest the street to be entered where the driver has a view of approaching traffic thereon. (Emphasis added.) Under Civ.R. 56, summary judgment is granted only when (1) no genuine issue as to any material fact exists; (2) the moving party is entitled to judgment as a matter of law; and (3) viewing the evidence in a light most favorable to the nonmoving party, reasonable minds can come to but one conclusion, which is adverse to the nonmoving party. Mahathiraj v. Columbia Gas of Ohio (1992), 84 Ohio App.3d 554. Any doubt as to the existence of a genuine issue for trial should be resolved against the moving party. Lytle v. Columbus (1990), 70 Ohio App.3d 99. The burden of showing that no genuine - 5 - issue exists as to any material fact falls upon the moving party in requesting a summary judgment. Harless v. Willis Day Ware- housing Co. (1978), 54 Ohio St.2d 64; Lytle, supra. Defendant has not met this burden in this case because she has introduced no evidence, other than her own testimony, to refute plaintiff's claims. A reviewing court, upon appeal from a summary judgment, must look at the record in the light most favorable to the party opposing the motion. Borchers v. Winzeler Excavating Co. (1992), 83 Ohio App.3d 568. If the court views the evidence in the light most favorable to the nonmoving party, that is, plaintiff, the court must adopt plaintiff's version of the facts--that the defendant's car extended over half the sidewalk. Indeed, defendant admitted that maybe one or two inches of the bumper extended over the sidewalk. This admission alone is evidence defendant violated the statutory requirement that the car stop "immediately prior" to driving onto a sidewalk area. Moreover, there was evidence to support and none to refute the claim that the defendant violated another statute requiring her to give "ample warning" that she was backing out of the driveway. Revised Code 4511.38 states as follows: Rules for starting and backing vehicles. 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 they 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 - 6 - works or official duties; as a result of an emergency caused by an accident or breakdown of a motor vehicle. The Dissent claims that R.C. 4511.38 does not apply to vehicles operated on private property. In support of this interpretation of this statute, the Dissent cites Buell v. Brunner (1983), 10 Ohio App.3d 41. The facts in Buell, however, are distinguishable: all the parties were in a parking school lot and the driver was not moving to exit onto the street. Sidewalks, however, are not "private property," nor is the driveway ramp. Thus the statute also applies to pedestrians on the driveway ramp. Hershovics v. Mendlin (1973), 40 Ohio App.2d 551. Failing to give ample warning and failing to stop immediately prior to driving onto a sidewalk violates two traffic laws. These violations constitute negligence per se and are a sufficient basis to reverse the trial court granting defendant's motion for summary judgment. Defendant also claims plaintiff was more negligent than defendant because plaintiff negligently operated her bicycle in violation of a University Heights ordinance by riding her bicycle on the sidewalk. This ordinance states, "No person fourteen years or more shall ride a bicycle or motorcycle upon any sidewalk in any district. Persons under the age of fourteen years shall ride their bicycles upon a sidewalk rather than the 1 roadway." 1 The plaintiff's child was eight years old and therefore not covered by the ordinance. - 7 - This ordinance was designed to protect pedestrians on the sidewalk, not cars in driveways. Since the ordinance was not imposed for the benefit of defendant, the violation of this ordinance does not constitute negligence per se against defendant. The question of who was more negligent, moreover, is a question of comparative negligence. Issues of comparative negligence are for a jury to resolve unless the evidence is so compelling that reasonable minds can reach but one conclusion. Borchers, supra. The Dissent states that "appellant does not dispute the fact that she was at least 12 to 20 feet away from appellee's vehicle when she applied her brakes in such a manner that it caused her to fall off of her bicycle." On the contrary, appellant repeatedly stated the car pulled out "right there in front of [her]" when she applied her brakes and fell. This description is sufficiently different to constitute a denial of appellant's description. Moreover, this description establishes a basis for proximate cause. The Dissent claims that because this is a non-contact injury case plaintiff had the burden of showing "elements of speed or recklessness" to establish proximate cause. In support of this principle, the Dissent cites Lumberman's Mutual Casualty v. McKinley (Aug. 4, 1988) Cuyahoga App. No. 53934, unreported. In Lumberman's the plaintiff fell in a parking lot as she attempted to step out of the way of an oncoming speeding vehicle. The only question relating to proximate cause was whether the snow and ice in the parking lot - 8 - constituted an independent intervening cause sufficient to grant summary judgment for the insurance company. The court never held that speed or recklessness was necessary for non-contact cases, because that was not the issue. If such proof were required, moreover, the difference between negligence and intentional tort would be blurred. What Plaintiff has established in her claim for negligence is sufficient to overcome defendant's motion for summary judgment: (1) the driver of a car backing out of a driveway has a statutory duty to provide ample warning of the car's presence and to stop before arriving at the sidewalk. Plaintiff states defendant provided no warning to plaintiff and did not stop until her car was halfway across the sidewalk. As a result of the car's sudden stop without warning, plaintiff states she was required to apply her bicycle brakes so suddenly she fell from her bicycle and was injured. Interpreting the facts in a light most favorable to the non- moving party, as we are obliged to do, we do not find the evidence is compelling on behalf of defendant. It is for the jury to resolve questions such as the distance of the parties and the speed with which they were moving. Moreover, it is for the jury to consider the comparative negligence of the parties. In this context, there are other obvious questions to answer, such as the degree of caution each party owed and whether plaintiff was negligent in applying her brakes suddenly or whether her response was reasonably cautious given the nearness of the - 9 - protruding car, even if there were sufficient room to pass. These are questions for the jury to decide. As Strother v. Hutchinson (1981), 67 Ohio St.2d 282, stated quoting an earlier case: "[i]ssues in a negligence case should be withdrawn from a jury in only exceptional cases and never when the facts concerning the conduct of the parties as well as the standard of care that should be exercised are to be determined." Accordingly, this assignment of error is granted. - 10 - This cause is reversed and remanded. It is, therefore, ordered that appellant recover of appellee her costs herein taxed. 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. DAVID T. MATIA, P.J., CONCURS; DYKE, J., DISSENTS (See attached Dissenting Opinion. DIANE KARPINSKI 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 the time period for review will begin to run. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68002 JANET M. STROTHER : : Plaintiff-appellant : : vs. : DISSENTING OPINION : SUSAN FRIED : : Defendant-appellee : : : DATE OF ANNOUNCEMENT OF DECISION : DECEMBER 20, 1995 ANN DYKE, J., DISSENTING: I respectfully dissent from the majority's opinion as it fails to analyze the third element necessary to establish actionable negligence. In order to survive appellee's motion for summary judgment, appellant must not only establish that appellee breached the duty set forth in R.C. 4511.431 but must also establish that such breach proximately caused appellant's injury. See, Strother v. Hutchinson (1981), 67 Ohio St.2d 282. While the majority has reversed the decision of the trial court stating that questions of fact remain as to whether and to what extent appellee's bumper extended over the sidewalk which intersects - 2 - appellee's driveway and driveway apron, such question is not a material question of fact as this is a non-contact injury case. In non-contact injury cases, proximate cause is established when elements of speed or reckless-ness are present. See, Lumberman's Mutual Casualty Company v. McKinley (August 4, 1988) Cuyahoga App. No. 53934, unreported. In the instant case appellee's vehicle was stopped at the time it was perceived by the appellant. Moreover, appellant did not rebut the fact that she was at least 12 to 20 feet away from appellee's vehicle when she applied her brakes in such a manner that it caused her to fall 2 off of her bicycle. Reasonable minds can come to but one 2 Appellant filled out a police report on July 22, 1991 indicating that the incident occurred and that she fell in front of 2246 Barrington Road to wit, appellee's neighbor's home. (Appellant's Deposition, Pgs. 23- 24) While appellant maintained that she fell right near appellee's driveway, she also admitted and it is uncontradicted that she was riding behind her son at the time of the incident; that when her son stopped his bicycle there was "space" between his front bicycle tire and appellee's vehicle; that there was a space of two to three 26" tire lengths between her son's rear tire and her front tire as they rode and that everything happened within seconds. (Deposition, Pgs. 25-29) In light of the lengths of both bicycles and the admitted spaces in front and in between the bicycles, appellant's admissions are not inconsistent with the police report appellee filled out on July 29, 1991 which also indicated that appellant fell in front of 2246 Barrington Road and the affidavit appellee attached to her motion for summary judgment which states in relevant part: (9) I further swear and affirm that at the time I came to a complete stop, the Plaintiff was at least twelve (12) to twenty (20) feet from the intersection of the sidewalk and my property line, and still in front of 2246 Barrington. (10) That after I came to a complete stop, the Plaintiff, Mrs. Strother, apparently saw my car and lost control of her bicycle causing the (continued...) - 3 - conclusion and that is that the location of appellee's vehicle was too remote in time and space to reasonably be considered to be the direct and proximate cause of appellant's fall. Significantly, appellant's eight year old son, a much less experienced cyclist who preceded her down the sidewalk, was unaffected by the presence of appellee's vehicle. Additionally, the theory of appellant's case was that it was the "sudden appearance" of appellee's car which caused her to apply her brakes and fall. However, appellant's perception as to the "sudden appearance" of appellee's car is a direct result of the presence of appellee's neighbor's hedge and the time frame in which appellant looked up and saw appellee's vehicle. Also, contrary to the majority's opinion, R.C. 4511.38 does not apply to vehicles operated on private property. See, Buell v. Brunner 3 (1983), 10 Ohio App.3d. 41. In the instant case, appellee stated that as she backed down her driveway she saw appellant and her son approach thru the hedges and stopped her vehicle to permit them to pass safely. Moreover, but for the presence of appellee's neighbor's hedge, appellant's accident would not have occurred. The majority's reversal in this non-contact case is unwarranted where appellee 2 (...continued) bicycle to fall. The Plaintiff fell in front of 2246 Barrington. There was no impact between Plaintiff and my automobile. 3 R.C. 4511.38 provides rules for the starting and backing of motor vehicles. - 4 - could not legally alter the hedge which shielded appellee's car from view; where appellant violated a University Heights ordinance prohibiting individuals over the age of 14 from riding bicycles on its sidewalks and where, in contrast to her eight year old son, appellant breached a duty to maintain control of her bicycle by overreacting to the presence of appellee's vehicle and applying her brakes in a manner which caused her fall. Appellee's conduct in this case is de minimis. The trial court did not err in granting summary judgment to .