COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69800 JEANETTE FRANKLIN, Individually : ACCELERATED DOCKET and as Administratrix of the : Estate of Bruce Franklin : : Plaintiff-Appellant : : JOURNAL ENTRY -vs- : AND : OPINION EDWARD REED : : Defendant-Appellee : PER CURIAM DATE OF ANNOUNCEMENT OF DECISION AUGUST 22, 1996 CHARACTER OF PROCEEDING Civil appeal from Court of Common Pleas Case No. 274189 JUDGMENT Affirmed DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellant: For Defendant-Appellee: RONALD A. MARGOLIS, ESQ. HARRY SIGMIER, ESQ. MATTHEW J. GRIMM, ESQ. JOHN A. ALBERS, ESQ. Misny & Associates Co., L.P.A. Weston, Hurd, Fallon, Terminal Tower, Suite 805 Paisley & Howley 50 Public Square 2500 Terminal Tower Cleveland, Ohio 44113 50 Public Square Cleveland, Ohio 44113 - 2 - PER CURIAM: This appeal is before the Court on the accelerated docket pursuant to App. R. 11.1 and Loc. App. R. 25. Plaintiff-appellant Jeanette Franklin appeals in her wrongful death action from an order of the trial court granting summary judgment to the defendant-appellee Edward Reed who operated a motor vehicle which struck the plaintiff's deceased spouse while he was crossing the street in front of defendant's car. We find no error and affirm. At 2:30 a.m. on September 11, 1993, plaintiff's spouse ran into the path of defendant's car which was proceeding eastbound in the curb-lane on Euclid Avenue in East Cleveland. Decedent was not within a cross-walk at the time of the collision, nor crossing at an unmarked intersection. Police received information that the decedent was attacked by two males in a parking lot on the north side of Euclid Avenue and then fled across Euclid Avenue looking back at the two attackers. The evidence was undisputed that defendant was operating his vehicle within the posted speed limit (35 m.p.h.) and was not violating any statute or ordinance. Plaintiff contends that defendant was negligent in failing to avoid the decedent once he perceived his peril. As defendant approached the t-intersection of Euclid and Sheldon Avenues, out of his peripheral vision, he saw plaintiff's spouse attempting to run across Euclid Avenue from the street's north side. Euclid is five lanes across at this point, two each - 3 - eastbound and westbound, with a center turning lane. As soon as he saw plaintiff's spouse approaching, he immediately applied his brakes and attempted to downshift, but was unsuccessful in avoiding impact with the decedent. Defendant stated on deposition that approximately one second elapsed between the time he first saw plaintiff's spouse until the collision occurred. Defendant's accident reconstruction expert stated in his report that defendant only had approximately 1.6 - 1.9 seconds in which to react to the spouse's sudden appearance. Defendant's expert concluded that, based upon his time estimate, defendant could not have avoided a collision with Franklin. Plaintiff's assignments of error state as follows: I. THE TRIAL COURT ERRED IN GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AS SAID MOTION FAILED TO MEET ITS BURDEN UNDER RULE 56(C) OF THE OHIO RULES OF CIVIL PROCEDURE. II. THE TRIAL COURT ERRED IN RULING THAT DEFENDANT WAS NEGLIGENCE FREE AS A MATTER OF LAW UNDER WILLIAMS V. PUTNAM TRANSFER & STORAGE (8TH DIST. C.A., UNREPORTED, 64659). Civ. R. 56(C) specifically provides that before summary judgment may be granted, the court must determine that: (1) no genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, in viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, and that conclusion is adverse to the non-moving party. State, ex rel. - 4 - Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511; Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327. It is well settled that the party seeking summary judgment bears the burden of showing that no genuine issue of material fact exists for trial. Celotex Corp. v. Catrett (1987), 477 U.S. 317, 330; Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 115. Doubts must be resolved in favor of the nonmoving party. Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356, 358-59. In Dresher v. Burt (1996), 75 Ohio St.3d 280, the Supreme Court of Ohio modified the summary judgment standard as was applied under Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108. Presently, under the new standard, "*** the moving party bears the initial responsibility of informing the trial court of the basis for the motion, and identifying those portions of the record which demonstrate the absence of a genuine issue of fact or a material element of the nonmoving party's claim." Dresher at 296. The nonmoving party then has a reciprocal burden of specificity and cannot rest on mere allegations or denials in the pleadings. Dresher at 295-96. The nonmoving party must set forth "specific facts" by the means listed in Civ. R. 56(C) showing that a "triable issue of fact" exists. Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 115; Chaney v. Clark Cty. Agricultural Soc. (1993), 90 Ohio App.3d 421, 424. A trial court in a summary judgment proceeding is limited to consideration of the pleadings, affidavits, answers to - 5 - interrogatories, depositions on the file, and exhibits that may be presented on behalf of the parties to the lawsuit. Civ. R. 56(C). These materials were properly available to the trial court in this case. The plaintiff offered no evidence that defendant operated his motor vehicle in violation of any rules or regulations under Ohio law. It was undisputed that defendant operated his motor vehicle within the legal speed limit at the time of the accident. It was also undisputed that defendant was keeping a lookout and using his rear-view, passenger side and driver side mirrors to observe the presence of other traffic and pedestrians along Euclid Avenue. Nor was it disputed that, once aware of plaintiff's presence, defendant exercised his best efforts to avoid a collision. Under these circumstances, we find no evidence that defendant violated any duty of due care toward plaintiff. Nevertheless, plaintiff claims that there is a genuine issue of material fact as to whether defendant had sufficient time and opportunity to take evasive action and avoid striking Franklin. Plaintiff does not contest the calculation by defendant's expert that defendant only had 1.6 - 1.9 seconds to prevent a collision once Franklin presented himself to defendant's peripheral vision. Plaintiff's expert opined that defendant was not "paying proper attention to the driving task" and missed an opportunity to avoid the collision. Plaintiff's expert deduced that defendant's action - 6 - of looking into his rearview mirror to check traffic prior to the collision caused the accident. Plaintiff in her complaint alleged that defendant negligently struck the decedent in violation of the assured clear distance doctrine as provided by R.C. 4511.21(A). The record fails to disclose any negligence on the part of the defendant. In this state, in an action based on negligence, each party is presumed to have exercised due care until proven otherwise. Biery v. Pennsylvania (1951), 156 Ohio St. 75, paragraph two of the syllabus. Negligence cannot be presumed, it must be proven. Id. at 78. With regard to automobile accidents, the mere fact that a driver hits a victim on the roadway does not establish negligence. Tomlinson v. Cincinnati (1983), 4 Ohio St.3d 66, 69. Whether or not Franklin was a discernible object for the entire period that he traversed Euclid Avenue (5.6 to 7.5 seconds) as estimated by plaintiff's expert is not material to the issue. The critical issue was defendant's potential reaction time upon plaintiff's entry into defendant's anticipated line of travel. The trial court, in part, based its decision to grant defendant's motion for summary judgment upon this Court's opinion in Williams v. Putnam Transfer & Storage (Feb. 3, 1994), Cuyahoga App. No. 64659, unreported. Additionally, the trial court found that defendant was not negligent as a matter of law. The due care required by the plaintiff's decedent is stated in R.C. 4511.48(A) which provides, in part, that: - 7 - Every pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right of way to all vehicles, trackless trolleys, or streetcars upon the roadway. The pedestrian's failure to comply with this statutory provision amounts to negligence per se. Regardless of a pedestrian's actions, a motor vehicle operator must nevertheless exercise "due care to avoid colliding with any pedestrian upon any roadway." R.C. 4511.48(E). In the context of an automobile-pedestrian collision, summary judgment is properly granted to the motor vehicle operator where the pedestrian is negligent per se, and there is no evidence of any negligence on the part of the operator when the pedestrian darts into the path of the driver rendering it impossible for the driver to avoid striking the pedestrian. The trial court correctly applied our decision in Williams v. Putnam Transfer & Storage Co., supra. Summary judgment was properly granted. Assignments of Error I and II are overruled. Judgment affirmed. - 8 - It is ordered that appellee recover of appellant his costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas 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. LEO M. SPELLACY, CHIEF JUSTICE JAMES M. PORTER, JUDGE JOSEPH J. NAHRA, 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 .