COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 78356 EDDIE HICKS, Plaintiff-appellant JOURNAL ENTRY vs. AND TERESA SCHAEFER, OPINION Defendant-appellee DATE OF ANNOUNCEMENT OF DECISION: MAY 31, 2001 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, Case No. CV-390579 JUDGMENT: Reversed and Remanded. DATE OF JOURNALIZATION: APPEARANCES: For plaintiff-appellant: JEFFREY D. LOJEWSKI, ESQ. ANTHONY R. PETRUZZI, ESQ. Berger & Zavesky Co., L.P.A. 614 W. Superior Avenue Suite 1425 Cleveland, Ohio 44113-9850 For defendant-appellee: RICHARD R. KUEPPER, ESQ. RICHARD R. KUEPPER & ASSOCIATES 480 Skylight Office Tower 1660 West Second Street Cleveland, Ohio 44113-7550 -2- KARPINSKI, A.J.: Plaintiff-appellant Eddie Hicks appeals from an order of the trial court granting summary judgment in favor of defendant- appellee Teresa Schaefer. We reverse and remand for further proceedings. This action arises out of an automobile-pedestrian/bicyclist collision at a traffic circle. Plaintiff commenced this action by filing a complaint against Teresa Schaefer for negligence and against Timothy Schaefer for negligent entrustment. Hicks argued Timothy Schaefer should not have loaned his car to his sister Teresa because she was in a prior automobile accident for which she was cited. Hicks, however, did not produce any evidence that Timothy Schaefer knew or should have known of the collision or her citation or otherwise knew that she was not a competent driver. The trial court granted summary judgment in favor of Timothy Schaefer on the negligent entrustment claim, which is not involved in this appeal. Teresa Schaefer thereafter filed a motion for summary judgment supported by photographs of the scene, Hicks' answers to requests for admissions, and deposition testimony from Officer Thompson, herself, and Hicks. Teresa Schaefer argued that defendant was riding his bicycle the wrong way on a one-way street around the traffic circle and suddenly appeared in front of her so that she could not avoid colliding with him. She also argued that even if defendant was walking his bicycle as he contended, he was still required to comply with traffic laws and ran a stop sign and/or -3- failed to yield the right-of-way to her. Hicks filed a brief in opposition, supported by deposition testimony of Teresa Schaefer and himself. He argued that Teresa Schaefer's own testimony revealed that she failed to exercise due care when operating her vehicle, and that he violated no traffic laws. Teresa Schaefer testified that she was properly driving counter-clockwise around the circle at approximately 15 miles per hour while looking to her right for traffic merging from that side when she suddenly saw and collided with Hicks to the left in front of her. The trial court granted summary judgment in favor of Teresa Schaefer without written opinion. Hicks timely appeals raising the following sole assignment of error: THE TRIAL COURT ERRED BY GRANTING DEFENDANT-APPELLEE'S MOTION FOR SUMMARY JUDGMENT AS A MATTER OF LAW, AS GENUINE ISSUES OF MATERIAL FACT EXIST FROM WHICH REASONABLE MINDS COULD CONCLUDE THAT DEFENDANT-APPELLEE TERESA SCHAEFER FAILED TO ACT WITH DUE CARE AND IS LIABLE FOR THE INJURIES CAUSED TO PLAINTIFF-APPELLANT. This assignment is well taken. Hicks argues the trial court improperly granted summary judgment against him because there was conflicting evidence concerning what occurred and who was responsible for the collision. It is well established that summary judgment is warranted only when, after viewing the evidence in the light most favorable to the non-moving party, there is no genuine issue of material fact, reasonable minds can reach but one conclusion, and the moving party is entitled to judgment as a matter of law. Civ.R. 56(C). After reviewing the record in compliance with this standard, -4- we conclude that the trial court erred by granting summary judgment in the case at bar. According to Hicks' version of the incident which we must accept as true for purposes of ruling on the motion for summary judgment he was struck by Schaefer's vehicle while he was walking his bicycle across the traffic circle. Each party cites to a different subsection of R.C. 4511.48 to support its position. Teresa Schaefer emphasizes subsection (A) which provides that pedestrians yield the right-of-way to vehicles when crossing a roadway outside of a crosswalk, as follows: (A) 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. Hicks emphasizes subsection (E), however, which provides that drivers must nevertheless exercise due care to avoid colliding with pedestrians crossing outside of crosswalks, as follows: (E) This section does not relieve the operator of a vehicle, streetcar, or trackless trolley from exercising due care to avoid colliding with any pedestrian upon any roadway. The Erie County Court of Appeals, applying these principles, reversed a summary judgment for a driver who struck a pedestrian under similar circumstances in Coffey v. Dowell (May 20, 1994), Erie App. No. E-94-06, unreported at p. 2. Under the circum- stances, there is a genuine issue of material fact concerning whether Teresa Schaefer exercised due care to avoid colliding with Hicks if he was walking his bicycle across the traffic circle. Schaefer testified that she was proceeding at approximately 15 miles per hour around the traffic circle through a yield sign. She -5- was looking toward the right as she was turning to the left, but never looked toward the left where she was heading. As she rounded the curve she observed Hicks in the middle of the road and struck him. She admitted during her deposition that she would have observed Hicks earlier if she had looked to her left and that the collision may have been avoided. Under the circumstances, the trial court erred by granting summary judgment in favor of Teresa Schaefer. Coffey v. Dowell, supra. The arguments in favor of granting summary judgment for Schaefer require accepting her version of the incident and concluding that Hicks was riding his bicycle at the time of the collision. She argues that Hicks violated traffic laws by (1) operating his bicycle on the wrong side of the road in violation of R.C. 4511.321, (2) failing to stop at a stop sign in violation of R.C. 4511.122, and (3) failing to yield the right-of-way in 1 R.C. 4511.32 provides as follows: One-way highways and rotary traffic islands. The department of transportation may designate any highway or any separate roadway under its jurisdiction for one-way traffic and shall erect appropriate signs giving notice thereof. Upon a roadway designated and posted with signs for one-way traffic a vehicle shall be driven only in the direction designated. A vehicle passing around a rotary traffic island shall be driven only to the right of such island. 2 R.C. 4511.12 provides as follows: Obeying traffic control devices. No pedestrian, driver of a vehicle, or operator of a streetcar or trackless trolley shall disobey the (continued...) -6- violation of R.C. 4511.43.3 2(...continued) instructions of any traffic control device placed in accordance with this chapter, unless at the time otherwise directed by a police officer. No provision of this chapter for which signs are required shall be enforced against an alleged violator if at the time and place of the alleged violation an official sign is not in proper position and sufficiently legible to be seen by an ordinarily observant person. Whenever a particular section of this chapter does not state that signs are required, that section shall be effective even though no signs are erected or in place. 3 R.C. 4511.43 provides as follows: Right-of-way at through highways; stop signs; yield signs. (A) Except when directed to proceed by a law enforcement officer, every driver of a vehicle or trackless trolley approaching a stop sign shall stop at a clearly marked stop line, but if none, before entering the crosswalk on the near side of the intersection, or, if none, then at the point nearest the intersecting roadway where the driver has a view of approaching traffic on the intersecting roadway before entering it. After having stopped, the driver shall yield the right-of-way to any vehicle in the intersection or approaching on another roadway so closely as to constitute an immediate hazard during the time the driver is moving across or within the intersection or junction of roadways. (B) The driver of a vehicle or trackless trolley approaching a yield sign shall slow down to a speed reasonable for the existing conditions and, if required for safety to stop, shall stop at a clearly marked stop line, but if none, before entering the crosswalk on the near side of the intersection, or, if none, then at the point nearest the intersecting roadway where the driver has a view of approaching traffic on the intersecting roadway or entering it. After slowing or stopping, the driver shall yield the right-of-way to any vehicle or trackless trolley in the intersection or approaching on another roadway so closely as to constitute an immediate hazard during the time the driver is moving across or within the intersection or junction of roadways. Whenever a driver is involved in a collision with a vehicle or trackless trolley in the intersection or junction of (continued...) -7- The record contains conflicting evidence on this point and we are required by Civ.R. 56(C) to accept as true Hicks' version of the incident when ruling on Teresa Schaefer's motion for summary judgment. As a result, the record does not show that his bicycle was driven in the wrong direction on the traffic circle in violation of R.C. 4511.32. Moreover, defendant testified that he stopped before proceeding across the street, so a jury could properly infer that he did not fail to stop at a stop sign or to yield the right-of-way to Teresa Schaefer in violation of R.C. Sections 4511.12 4511.43, respectively. Although we reverse summary judgment for Teresa Schaefer, we decline to express any opinion concerning the merits of the parties' respective positions and simply hold that the case presents a question for the jury. Accordingly, Hicks' sole assignment of error is sustained. Judgment reversed and remanded for further proceedings. 3(...continued) roadways, after driving past a yield sign without stopping, the collision shall be prima-facie evidence of the driver's failure to yield the right-of-way. -8- This cause is reversed and remanded. It is, therefore, ordered that appellant recover of appellee his 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. TIMOTHY E. McMONAGLE, J., AND JAMES J. SWEENEY, J., CONCUR. DIANE KARPINSKI ADMINISTRATIVE 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. 22. 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 clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). .