COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73430 SHEREDA WALKER, et al. : : ACCELERATED DOCKET Plaintiffs-Appellants : : JOURNAL ENTRY vs. : : AND LEROY THOMAS : : OPINION Defendant-Appellee : : PER CURIAM DATE OF ANNOUNCEMENT OF DECISION: MAY 14, 1998 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-326693 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-Appellants: ANTHONY A. GEDOS, ESQ. 726 Statler Office Tower 1127 Euclid Avenue Cleveland, Ohio 44115 For Defendant-Appellee: JEFFREY W. VAN WAGNER, ESQ. D. SCOTT HARVES, ESQ. Ulmer & Berne 900 Bond Court Building 1300 East Ninth Street Cleveland, Ohio 44114-1583 PER CURIAM: In this accelerated case, appellants Shereda, Shekeda, and Deevon Walker appeal a decision by the trial court in favor of -2- appellee Leroy Thomas in their action for personal injuries sustained in an automobile accident. The Walkers assign the following two errors for our review: I. THE TRIAL COURT ERRED BY GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT WHERE GENUINE ISSUES OF MATERIAL FACT WERE PRESENTED BY CONTRADICTORY AND INCONSISTENT AFFIDAVITS CONCERNING THE PHYSICAL AND MENTAL CONDITION OF A DRIVER IMMEDIATELY PRIOR TO AND AFTER AN AUTOMOBILE ACCIDENT IF THE DRIVER IS CLAIMING TO BE ABSOLVED FROM LIABILITY BASED UPON COMMON LAW NEGLIGENCE. II. THE TRIAL COURT ERRED BY GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT WHERE LIABILITY FOR BODILY INJURIES SUSTAINED IN AN AUTOMOBILE ACCIDENT IS GROUNDED ON NEGLIGENCE PER SE DUE TO A VIOLATION OF A CITY ORDINANCE REQUIRING THAT ASSURED CLEAR DISTANCE BE MAINTAINED EVEN THOUGH THE LIABLE DRIVER MAY HAVE HAD A TOTALLY INCAPACITATING MEDICAL CONDITION OCCURRING PRIOR TO AND IMMEDIATELY BEFORE AND SOLELY CAUSING THE ACCIDENT. Having reviewed the record and the legal arguments of the parties, we affirm the decision of the trial court. The apposite facts follow. Shereda Walker, along with her minor children, Shekeda and Deevon, filed a personal injury action against Leroy Thomas after an automobile accident in which Thomas rear-ended the Walkers' car. The complaint alleged, inter alia, that Thomas violated North Randall City Ordinance Section 432.09 by failing to maintain an assured clear distance from the Walkers' vehicle. In Thomas' answer to the complaint, he raised several defenses including the assertion that he was immune from liability because he blacked out at the time of the accident. Thomas later filed a motion for summary judgment arguing that his unforeseeable loss -3- of consciousness relieved him of liability under the authority of Lehman v. Haynam (1956), 164 Ohio St. 595. The trial court granted Thomas' motion for summary judgment. This appeal followed. The Walkers challenge the trial court's decision to grant summary judgment in favor of Thomas. Our standard of review for summary judgment is the same as that of the trial court. Consequently, we review cases de novo. Brown v. Scioto Cty. Bd. of Commrs. (1993), 87 Ohio App.3d 704, citing Midwest Specialties, Inc. v. Firestone Co. (1988), 42 Ohio App.3d 6. In applying the de novo standard, we review the trial court's decision independently and without deference to the trial court's determination. Id. at 711. Summary judgment is appropriate when the following have been established: (1) that there is no genuine issue as to any material fact; (2) that the moving party is entitled to judgment as a matter of law; and (3) 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, that party being entitled to have the evidence construed most strongly in its favor. Brown, supra, citing Bostic v. Connor (1988), 37 Ohio St.3d 144, 146; cf., also State ex rel. Coulverson v. Ohio Adult Parole Auth. (1991), 62 Ohio St.3d 12, 14; Civ.R. 56(C). The burden of showing no genuine issue as to any material fact is on the party who requested the summary judgment. Dresher v. Burt (1996), 75 Ohio St.3d 280, citing Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, citing Hamlin v. McAlpin -4- Co. (1964), 175 Ohio St. 517, 519-520. However, the non-moving party has the initial burden of showing a genuine issue of material fact for trial. Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 115. See Dresher v. Burt, supra at 295, (limiting syllabus 3 of Wing v. Anchor Media, Ltd. Of Texas (1991), 59 Ohio St.3d 108.) An issue is genuine only if the evidence is such that a reasonable jury could find for the non-movant. Anderson v. Liberty Lobby, Inc. (1986), 477 U.S. 242. In their first assignment of error, the Walkers argue the trial court erred in granting Thomas' motion for summary judgment because there is a complete lack of evidence that Thomas was unconscious at the time of the accident. The Walkers' brief in opposition to Thomas' motion for summary judgment included an affidavit in which Shereda Walker averred that Thomas was walking, talking, and behaving normally immediately after the accident. We must note, however, that Shereda Walker's affidavit made no mention of Thomas' condition before the accident. On the other hand, Thomas presented the affidavit of his wife, Bernice Thomas, who averred that Thomas suffered sudden weakness, confusion, and loss of muscle control immediately before the accident that rendered him unable to react to the stopped traffic in front of him. Thomas also produced the affidavit of his neurologist, Dr. Herbert S. Bell, who averred that Thomas blacked out due to an intra- cerebral hemorrhage just before the accident. Dr. Bell stated that Mr. Thomas had no previous history of black out episodes prior to -5- the cerebral hemorrhage and had no way of knowing that a brain hemorrhage was likely to occur. A driver is not chargeable with negligence for failing to control his automobile when he is rendered unable to do so by a sudden period of unconsciousness, which he has no reason to anticipate. Lehman v. Haynam (1956), 164 Ohio St. 595, at paragraph 2 of the syllabus. See also Jenkins v. Morgan (1988), 57 Ohio App.3d 40, 44 (A directed verdict in favor of a driver was upheld on appeal when plaintiff failed to produce independent or substantial evidence to contradict the evidence presented by the defendant relative to the suddenness of defendant's illness.) In this case, Thomas presented uncontroverted evidence that, immediately before the accident, he suffered a sudden, unanticipated period of unconsciousness that rendered him unable to control his car. Upon the evidence presented, reasonable minds could only conclude that the emergency doctrine applied to absolve Thomas of liability for the accident. The Walkers' first assignment of error is overruled. In their second assignment of error, the Walkers argue that Thomas' failure to maintain an assured clear distance constituted negligence per se that should subject him to liability despite the black out defense. Their argument is based upon a claim that Thomas violated North Randall City Ordinance Section 432.09 by failing to maintain an assured clear distance from Shereda Walker's vehicle. North Randall City Ordinance Section 432.09 is a codification of R.C. 4511.21, Ohio's assured clear distance statute -6- which prohibits a motorist from operating his motor vehicle at a greater speed than will permit him to bring it to a stop within the assured clear distance ahead. A violation of R.C. 4511.21 has been held to constitute negligence per se. Erie Ins. Group v. Baum (1993), 83 Ohio Misc.2d 1, 9; Pond v. Leslein (1995), 72 Ohio St.3d 50, 53. However, a finding of negligence is not equivalent to a finding of liability. Hitchens v. Hahn (1985), 17 Ohio St.3d 212, 214; Fitas v. Estate of Baldridge (1995), 102 Ohio App.3d 365, 368. It does not preclude a driver from raising any applicable defenses. Castle v. Seelig (July 9, 1993), Huron App. No. H-92-059, unreported; Fitas at 368; Pond at 53. A motorist may avoid liability for injuries resulting from failure to comply with a safety statute regulating operation of a vehicle on public roadways if he shows that something beyond his control made it impossible for him to comply with the statute. Fitas at 369. In this case, Thomas demonstrated that his failure to comply with the statute was caused by a sudden, unanticipated blackout. In the absence of any evidence to the contrary, the trial court properly granted summary judgment in favor of Thomas. The Walkers' second assignment of error is overruled. Judgment affirmed. 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 Common Pleas 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 ANN BLACKMON ADMINISTRATIVE 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 25(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 .