COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72184 CITY OF CLEVELAND : : ACCELERATED DOCKET : Plaintiff-Appellant : : JOURNAL ENTRY v. : AND : OPINION WILLIE E. THOMAS, ET AL. : : : PER CURIAM Defendants-Appellees : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 6, 1997 CHARACTER OF PROCEEDING: Civil appeal from Cleveland Municipal Court, Case No. 95 CVE 16011 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: For Defendants-Appellees: PAUL R. PHILLIPS, ESQ. FRANK LEONETTI, III, ESQ. DOUGLASS & ASSOCIATES CO. BRIAN D. SULLIVAN, ESQ. 55 Public Square REMINGER & REMINGER CO. 2000 Illuminating Building The 113 St. Clair Building Cleveland, Ohio 44113-1901 Cleveland, Ohio 44114 2 PER CURIAM: This accelerated appeal was brought pursuant to App.R. 11.1 and Loc.App.R. 25. The purpose of an accelerated appeal is to allow this court to render a decision in brief and conclusionary fashion. Crawford v. Eastland Shopping Mall Assn. (1983), 11 Ohio App.3d 158; App.R. 11.1(E). Plaintiff-appellant, the City of Cleveland, appeals from the trial court's decision to grant summary judgment in favor of defendants-appellees, Willie E. Thomas and Homeline Furniture, Inc. Plaintiff sued defendants to recover the cost of removing an uprooted tree which had been struck by the Homeline truck driven by Thomas. On appeal, plaintiff argues that summary judgment was improper because there was a genuine issue of material fact regarding whether Thomas violated R.C. 4511.21(A), Ohio's assured safe distance statute. For the reasons that follow, we find no merit to plaintiff's argument and affirm the judgment of the trial court. On May 8, 1995, Thomas was driving a Homeline truck on West 95thStreet in Cleveland when the truck hit the limb of a tree and eventually uprooted it. Plaintiff's lawsuit alleged that defendants were negligent and sought recovery of the cost ($2,982.95) of removing the uprooted tree. Moving for summary judgment, defendants argued that they were not negligent as a matter of law. Attached to the motion is the affidavit of Thomas, who averred, in part, as follows: 3 2. I have driven on West 95th Street on several prior occasions. 3. During my several prior occasions driving upon West 95th , I have experienced no problem with overhanging branches from trees. 4. On May 8, 1995, the truck I was driving never left the road. 5. At all times, I proceeded carefully down West 95th Street, keeping a lookout for any possible obstructions. 6. As I was proceeding down West 95th Street, a branch from a tree caught onto the top of the trailer I was driving/pulling. 7. The branch was not reasonably observable. Plaintiff responded by arguing that defendants' actions constituted negligence per se because, plaintiff argued, defendants violated R.C. 4511.21(A), Ohio's assured clear distance statute. The trial court granted summary judgment in favor of defendants. In its findings of fact and conclusions of law, the court found this statute did not apply to the facts of this case. Plaintiff timely appealed, raising the following assignment of error. THE TRIAL COURT ERRED BY GRANTING DEFENDANT'-APPELLEE'S MOTION FOR SUMMARY JUDGMENT WHEN MATERIAL ISSUES OF FACT EXISTED CONCERNING DEFENDANT-APPELLEE'S VIOLATION OF OHIO REVISED CODE SECTION 4511.21, THE ASSURED CLEAR DISTANCE STATUTE. The city argues that R.C. 4511.21(A) applies to the facts in the case at bar. That is, the driver was obliged to stop within an assured clear distance of branches which hang over the street lower than the top of his truck. We do not agree. The statute in question states as follows: 4521.11 Speed limits. (A) 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 or highway and any other conditions, and no person shall drive any 4 motor vehicle, trackless trolley, or streetcar in and upon any street or highway at a greater speed than will permit the person to bring it to a stop within the assured clear distance ahead. The Ohio Supreme Court has consistently held that a *** Violation of the statute [R.C. 4511.21] and a finding of negligence per se depends on whether there is evidence that the driver collided with an object which (1) was ahead of him in his path of travel, (2) was stationary or moving in the same direction as the driver, (3) did not suddenly appear in the driver's path, and (4) was reasonably discernible. McFadden v. Elmer C. Brewer Trans. Co. (1952), 156 Ohio St. 430 [46 O.O. 354.] Blair v. Goff-Kirby Co. (1976), 49 Ohio St.2d 5, 7; Ziegler v. Wendel Poultry Serv., Inc. (1993), 67 Ohio St.3d 10. To apply the statute to the case at bar, the question becomes whether the branches were ahead of Thomas' path of travel and whether the branches were reasonably discernible. We hold that the trial court did not err in finding that the statute did not apply. First, the Ohio Supreme Court has defined ahead *** in his path of travel to mean to the front of and within the directional line of travel of a motorist whose conduct allegedly violates the statute. Pallini v. Dankowski (1969), 17, Ohio St.2d 51, paragraph one of the syllabus. The branches in the case at bar were above the path of travel. They were not in the road. See also, Gedetsis v. Anthony Allega Cement (Dec. 3, 1992) Cuyahoga App. No. 61211, unreported, ( [d]efendant has not cited any authority holding that a concrete barrier lining the left margin of the highway entrance ramp satisfies the first condition as being `ahead' of the driver in his `directional line of travel.' ) 5 Second, the branches were not reasonably discernible. Thomas states this proposition in his affidavit. The city, in its response to defendants' motion for summary judgment, did not submit any evidentiary material to rebut this evidence. Accordingly, plaintiff's assignment of error is overruled. Judgment affirmed. 6 It is ordered that appellees recover of appellant their 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 Cleveland Municipal 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. PATRICIA A. BLACKMON, PRESIDING JUDGE DIANE KARPINSKI, JUDGE JOHN T. PATTON, JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .