[Cite as Curry v. Estate of Akers, 2016-Ohio-581.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

Ryan J. Curry, : 

 Plaintiff-Appellant, : 

 No. 15AP-836 

v. : (C.P.C. No. 14CV-4735)

The Estate of Boyd F. Akers et al., : (ACCELERATED CALENDAR) 

 Defendants-Appellees. : 

 

D E C I S I O N 

Rendered on February 18, 2016 

 

Lazzaro Luka Law Offices, LLC, Lynn A. Lazzaro, Lori A. 

Luka, and Gillian A. Steiger, for appellant. 

Gallagher, Gams, Pryor, Tallan & Littrell L.L.P., and 

James R. Gallagher, for appellee State Farm Fire and 

Casualty Company. 

 

APPEAL from the Franklin County Court of Common Pleas 

TYACK, J. 

{¶ 1} Plaintiff-appellant, Ryan J. Curry, appeals from the judgment of the 

Franklin County Court of Common Pleas denying his motion for summary judgment on 

the issue of uninsured motorist coverage and granting defendant-appellee, State Farm 

Fire and Casualty Company's ("State Farm"), motion for summary judgment on the same 

issue. For the reasons that follow, we affirm the judgment of the trial court. 

I. FACTUAL AND PROCEDURAL BACKGROUND

{¶ 2} Curry was injured when he accidentally struck and killed Boyd Akers on 

Interstate I-270 in Gahanna, Ohio around 9:30 p.m. on April 16, 2012. Curry was driving 

a 2006 Ford Fusion with the permission of and owned by his girlfriend, Tina Pignatelli. 

The vehicle was insured by State Farm and contained an uninsured motorist clause. 
No. 15AP-836 2 

{¶ 3} At the time of the accident, Boyd Akers and his two daughters, Amanda 

Akers and Kourtney Akers, were returning from shopping at Eastland Mall in a 1990 

Buick Century purchased by Boyd but titled in the name of 19-year-old Amanda Akers. 

Boyd Akers had a suspended driver's license. It is not disputed that the Buick was 

uninsured. 

{¶ 4} Boyd Akers was driving the Buick with Amanda Akers' permission. 

Kourtney Akers was speaking to someone about activating a cell phone they had just 

purchased. Boyd Akers was upset with the cell phone company and began making 

comments. Kourtney Akers put her hand over Boyd Akers mouth in an attempt to quiet 

him. This upset Boyd Akers who pulled the car off the road and parked on the berm near 

the grass adjacent to the northbound lanes of I-270. He then exited the vehicle, crossed 

all four northbound lanes of I-270 on foot, climbed over the median fence separating the 

north and southbound lanes, and crossed all four southbound lanes of the freeway. 

{¶ 5} Upon reaching the other side of I-270 he made or received a cell phone call 

with a friend that lasted approximately three minutes. Then he re-crossed all four 

southbound lanes, climbed the median fence, and was crossing the northbound lanes 

while cars were swerving around him. Amanda and Kourtney Akers exited the Buick and 

began screaming at him not to cross the road. Amanda Akers testified that Boyd Akers 

was more than halfway through the fourth northbound lane when he was struck by Ryan 

Curry's vehicle. He had nearly reached the rear of the Buick when Ryan Curry struck and 

killed him. Both the Ohio Traffic Crash Report and Amanda Akers indicated that Boyd 

Akers was returning to his vehicle when he was struck and killed. 

{¶ 6} Ryan Curry testified he was traveling between 60 and 65 mph when he saw 

a car in front of him suddenly swerve. He then saw Boyd Akers in the second northbound 

lane of I-270 and almost immediately struck him. Akers' body was propelled through the 

air and into the driver's side windshield of Curry's vehicle. After striking Akers, Curry 

engaged heavy braking and came to a final stop under the Tech Center Drive bridge. 

Curry sustained bodily injury and was transported to Grant Medical Center. He also 

received psychiatric care after the accident. 

{¶ 7} State Farm denied coverage based on the uninsured motorist provisions of 

the policy issued to Tina Pignatelli. State Farm took the position that the injuries 
No. 15AP-836 3 

sustained by Ryan Curry were not caused by an accident arising out of the operation, 

maintenance or use of a motor vehicle by an uninsured motorist. State Farm asserted 

that, because Boyd Akers was a pedestrian at the time of the accident, Akers himself was 

the instrument of the injury, not a motor vehicle. 

{¶ 8} Curry filed suit on April 4, 2014 against the Estate of Boyd Akers, Amanda 

K. Akers, and State Farm. 

{¶ 9} Curry and State Farm filed cross-motions for summary judgment. On 

April 27, 2015, the trial court found in favor of State Farm finding that "the cause of the 

bodily injury was a person and not a motor vehicle as required by the uninsured motorists 

provision." (Emphasis sic.) (April 27, 2015 Decision and Entry, 5.) 

{¶ 10} After the trial court entered judgment for State Farm, Curry filed a motion 

for summary judgment against the Estate of Boyd Akers and Amanda Akers. They failed 

to respond to the motion. The trial court granted Curry's motion for summary judgment 

on August 5, 2015, finding Boyd Akers to be negligent and that Amanda Akers had 

negligently entrusted the vehicle to Akers. The trial court set the matter for a hearing on 

damages, but held it in abeyance pending a decision from this court on the issue of 

uninsured motorist coverage. 

{¶ 11} Curry then appealed to this court on September 4, 2015. 

II. ASSIGNMENTS OF ERROR

{¶ 12} On appeal, Curry sets out the following two assignments of error: 

I. The Trial Court erred to the detriment of the 

Appellant/Plaintiff Ryan J. Curry when it granted summary 

judgment in favor of Appellee/Defendant State Farm Fire and 

Casualty company holding that there were no genuine issues 

of material fact as to whether or not Appellant/Plaintiff Ryan 

J. Curry's [sic] was entitled to uninsured motorist coverage 

under the policy of insurance issued by Appellee/Defendant 

State Farm Fire and Casualty Company to non-party Tina 

Pignatelli for injuries Appellant/Plaintiff Ryan J. Curry 

sustained in an automobile accident on April 16, 2012. 

II. The Trial Court erred to the detriment of the 

Appellant/Plaintiff Ryan J. Curry when it denied summary 

judgment to Appellant/Plaintiff Ryan J. Curry holding that 

Appellant/Plaintiff Ryan J. Curry was not entitled to 

uninsured motorist coverage under the policy of insurance 
No. 15AP-836 4 

issued by Appellee/Defendant State Farm Fire and Casualty 

Company to non-party Tina Pignatelli for injuries 

Appellant/Plaintiff Ryan J. Curry sustained in an automobile 

accident on April 16, 2012. 

{¶ 13} The assignments of error are related and will be addressed together. 

III. STANDARD OF REVIEW

{¶ 14} Our review of summary judgment on appeal is de novo. Comer v. Risko, 106 

Ohio St.3d 185, 2005-Ohio-4559, ¶ 8. To obtain summary judgment, the movant must 

show that (1) there is no genuine issue of material fact, (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 when viewing evidence in favor of the nonmoving party 

and that conclusion is adverse to the nonmoving party. Civ.R. 56(C); New Destiny 

Treatment Ctr., Inc. v. Wheeler, 129 Ohio St.3d 39, 2011-Ohio-2266, ¶ 24. 

{¶ 15} The movant bears the initial burden of informing the trial court of the basis 

for the motion and of identifying those portions of the record demonstrating the absence 

of a genuine issue of material fact. Dresher v. Burt, 75 Ohio St.3d 280 (1996). Once the 

moving party meets this initial burden, the nonmoving party has a reciprocal burden 

outlined in Civ.R. 56(E) to set forth specific facts showing that there is a genuine issue for 

trial and, if the nonmoving party does not so respond, summary judgment, if appropriate, 

shall be entered against the nonmoving party. Id.

{¶ 16} Summary judgment is appropriate when the evidence is construed most 

strongly in favor of the nonmoving party, and reasonable minds can reach only one 

conclusion, that being adverse to that party. Civ.R. 56(C). 

{¶ 17} As explained by the Supreme Court of Ohio: 

The moving party cannot discharge its initial burden under 

Civ.R. 56 simply by making a conclusory assertion that the 

nonmoving party has no evidence to prove its case. Rather, 

the moving party must be able to specifically point to some 

evidence of the type listed in Civ.R. 56(C) which affirmatively 

demonstrates that the nonmoving party has no evidence to 

support the nonmoving party's claims. If the moving party 

fails to satisfy its initial burden, the motion for summary 

judgment must be denied. However, if the moving party has 

satisfied its initial burden, the nonmoving party then has a 

reciprocal burden outlined in Civ.R. 56(E) to set forth specific 
No. 15AP-836 5 

facts showing that there is a genuine issue for trial, and if the 

nonmoving party does not respond, summary judgment shall 

be rendered against the nonmoving party. 

(Emphasis sic.) Dresher at 293. 

IV. ANALYSIS

{¶ 18} We begin our analysis by noting how Ohio courts view insurance contracts. 

"Ohio has traditionally given a liberal interpretation to insurance coverage. Ambiguities 

within a policy are always resolved in favor of the insured." Nationwide Ins. Co. v. AutoOwners Mut. Ins. Co., 37 Ohio App.3d 199, 201 (10th Dist.1987). "A contract of insurance 

prepared and phrased by the insurer is to be construed liberally in favor of the insured 

and strictly against the insurer, where the meaning of the language used in doubtful, 

uncertain or ambiguous." Toms v. Hartford Fire Ins. Co., 146 Ohio St. 39 (1945). 

{¶ 19} The State Farm policy provides that it will pay damages for bodily injury an 

insured is legally entitled to recover from an uninsured motorist. The policy further 

provides that "[t]he bodily injury must be: a. sustained by an insured; and b. caused 

by an accident arising out of the operation, maintenance, or use of a motor vehicle by 

an uninsured motorist." (Emphasis sic.) 

{¶ 20} Specifically, the policy provides in pertinent part as follows: 

Uninsured Motorist means the owner or operator of: 

1. a motor vehicle, whose ownership, operation, 

maintenance, and use of that motor vehicle is: 

a. not insured or bonded for bodily injury liability at the time 

of the accident; * * * 

Insuring Agreement 

1. We will pay compensatory damages for bodily injury an 

insured is legally entitled to recover from an uninsured 

motorist. The bodily injury must be: 

a. sustained by an insured; and 

b. caused by an accident arising out of the operation, 

maintenance, or use of a motor vehicle by an uninsured 

motorist. 
No. 15AP-836 6 

(Emphasis sic.) (R. 46; State Farm Insurance Policy, 13-14.) 

{¶ 21} It is undisputed that Ryan Curry is an insured under the State Farm policy. 

It is also apparent from the definition of an uninsured motorist that both Boyd Akers and 

Amanda Akers were uninsured motorists under the same policy. 

{¶ 22} State Farm denied coverage because it claimed: "The injuries sustained by 

Ryan Curry in the above loss were not caused by an accident arising out of the operation, 

maintenance or use of a motor vehicle by an uninsured motorist. Boyd Akers was a 

pedestrian at the time of loss and he himself was the instrument of injury, not a motor 

vehicle." (Plaintiff Ryan J. Curry's Motion for Summary Judgment, exhibit No. 6.) 

{¶ 23} Therefore, the question at the summary judgment stage of litigation is 

whether Ryan Curry's injuries were caused by an accident arising out of the use of a motor 

vehicle because Boyd Akers was returning to the vehicle when he was struck and killed, 

thereby causing injury to Curry. Boyd Akers was arguably only one-half of a lane away 

from the vehicle when Curry struck him. 

{¶ 24} The issue is not, as State Farm argues, whether the vehicle itself was the 

instrumentality that injured Curry. Grange Mut. Cas. Co. v. Darst, 129 Ohio App.3d 723 

(2d Dist.1998). Rather, the issue is whether the accident arose out of Boyd Akers' use of 

the vehicle. 

{¶ 25} For example, in Grange, children were left unattended in a car, found 

matches, and started a fire. The fire that resulted from the use of the matches by one of 

the children was causally connected to the owner's negligence in leaving her two young 

children alone and unattended in a car where matches were kept. The court held that the 

cause of injury was not disconnected from any negligence involved in the actor's 

operation, maintenance, or use of the motor vehicle. 

{¶ 26} Similarly, in Nationwide, a case from this district, a hunter was ejecting 

shells from a shotgun which he intended to place in his truck when the gun accidentally 

discharged. A slug penetrated the bed of the truck and struck a passenger sitting in the 

cab. This court found the injury was connected with the use of the truck as a means of 

transporting the parties' hunting equipment. 
No. 15AP-836 7 

{¶ 27} Curry argues that the instant case is most like State Auto. Mut. Ins. Co. v. 

Rainsberg, 86 Ohio App.3d 417 (8th Dist.1993). In Rainsberg, the Cuyahoga County 

Court of Appeals found that the insured's injuries arose out of the use of the uninsured 

motor vehicle where the insured suffered injuries when he struck pedestrians who were 

attempting to divert traffic from a stalled, uninsured motor vehicle on the Ohio Turnpike. 

The court found that the insured's injuries arose out of the use of the uninsured motor 

vehicle because the chain of events preceding the accident exclusively concerned the 

pedestrians trying to obtain help for their stalled vehicle and to divert traffic away from 

their stalled vehicle. Id. at 422. The court explained that its case was unlike cases in 

which the injury suffered by the insured stemmed from an act wholly disassociated from 

and independent of the use of the vehicle. Id.

{¶ 28} The court noted that ownership, maintenance or use of the uninsured 

vehicle "has been judicially construed to require 'that a causal relation or connection must 

exist between the accident or injury and the "ownership, maintenance or use" of a vehicle 

in order for the accident or injury to come within the meaning of the clause "arising out of 

the ownership, maintenance or use" of a vehicle.' " Id. at 421, quoting 89 A.L.R.2d 150, 

153. " 'Where such causal connection or relation is absent, coverage will be denied.' " Id.

at 421, quoting 89 A.L.R.2d 150, 153. 

{¶ 29} Also, the court stated: 

"A number of authorities in this area define the term 'arising 

out of to mean 'originating from' or 'growing out of' or 'flowing 

from.' " Annotation, supra, 89 A.L.R.2d at 61. The term has 

also been used to mean 'causally connected with, not 

proximately caused by.' See Manufacturers Cas. Ins. Co. v. 

Goodville Mut. Cas. Co. (1961), 403 Pa. 603, 607, 170 A.2d 

571, 573. Therefore, the issue is not one of proximate cause. It 

is sufficient if the use is connected with the accident or the 

creation of a condition that caused the accident. The 

consensus is that the issue is not one of proximate cause but 

the requirement of some causal relation or connection. * * * 

"* * * [I]t is required that there be a factual connection 

growing out of or originating with the use of the vehicle." 

(Emphasis added.) 

(Emphasis sic.) Id. at 421, quoting 89 A.L.R.2d 150, 153. 
No. 15AP-836 8 

{¶ 30} State Farm argues the instant case is governed by Kish v. Central Natl. Ins. 

Group, 67 Ohio St.2d 41 (1981), and its progeny. Kish is the leading Supreme Court of 

Ohio case involving claims made under uninsured motorist provisions limiting coverage 

to injuries caused by accidents arising out of the "ownership, maintenance or use" of an 

automobile. 

{¶ 31} In Kish, the driver of an insured vehicle, was stopped at a traffic signal when 

his vehicle was struck from behind by another vehicle. Kish got out of his car to confer 

with the driver of the other vehicle, and the other driver emerged from his vehicle with a 

shotgun. When Kish observed that the driver had a gun, he tried to get back to his car, but 

before he could do so the other driver fatally shot him. 

{¶ 32} The Supreme Court of Ohio held that a "but for" analysis was inappropriate 

to determine whether recovery should be allowed under the uninsured motorist 

provisions. Rather, "the relevant inquiry is whether the chain of events resulting in the 

accident was unbroken by the intervention of any event unrelated to the use of the 

vehicle." Kish at 50. In applying that standard to the facts of the case, the court held that 

"the intentional, criminal act of the murderer was an intervening cause of injury unrelated 

to the use of the vehicle," thus agreeing with the lower court's finding that " 'the death [of 

Kish] resulted from an act wholly disassociated from and independent of the use of the 

vehicle as such.' " Id.

{¶ 33} The court in Kish further found the facts of that case distinguishable from 

other cases in which "the injury causing instrumentality is the vehicle itself." Id. at 51. 

The court determined that if the murderer had used his vehicle instead of a shotgun to kill 

Kish, under the terms of the policy the automobile would have been the instrumentality 

causing the injury and therefore would constitute "use" of the uninsured vehicle. Id.

{¶ 34} Stenger v. Lawson, 146 Ohio App.3d 550 (10th Dist.2001), is a case from 

this district in which the court applied the analysis in Kish to a situation involving road 

rage. 

{¶ 35} Stenger involved a driver who honked his horn at another driver who failed 

to proceed after a light turned green. The other driver got out of his vehicle to confront 

the insured and tripped the insured, causing him to fall and sustain injuries. The 

uninsured motorist policy stated that, "[w]e will pay damages for bodily injury an insured
No. 15AP-836 9 

is legally entitled to collect from the owner or driver of an uninsured motor vehicle. The 

bodily injury must be caused by accident arising out of the operation, maintenance or use 

of an uninsured motor vehicle." (Emphasis sic.) Id. at 553. 

{¶ 36} After recapping Kish and other cases involving intentional criminal conduct, 

the court found that "the conduct that inflicted harm on Stenger was the act of the other 

individual, Lawson, exiting his vehicle and tripping Stenger, i.e., the instrumentality that 

caused injury to Stenger was Lawson rather than an uninsured vehicle." Stenger at 555. 

"Further, 'an intentional criminal assault, with an instrumentality other than a motor 

vehicle, is considered an intervening cause of injury unrelated to the use of the vehicle.' " 

Id. quoting Scott v. Nationwide Mut. Ins. Co., 6th Dist. No. L-99-1191 (Dec. 23, 1999). 

{¶ 37} In Magan v. State Farm Fire & Cas. Ins. Co., 10th Dist. No. 02AP-1397, 

2003-Ohio-4411, this court noted that, "the determination of each particular case is 

extremely fact driven, and each case has some slight factual variation that places it either 

within or outside the purview of the 'ownership,' 'operation,' 'maintenance,' or 'use' of an 

uninsured vehicle. Thus, we must determine which cases have the most factually similar 

circumstances to the present case." Id. at ¶ 10. 

{¶ 38} The intervening cause of injury does not have to be criminal conduct; it can 

be negligence. In Estate of Nord v. Motorist Mut. Ins. Co., 105 Ohio St.3d 366, 2005-

Ohio-2165, a Cleveland EMS ambulance was transporting a patient to the hospital. 

During the trip a paramedic accidentally dropped a syringe, striking the patient in the eye 

and injuring him. Despite the fact the patient was riding in an uninsured motor vehicle, 

the Supreme Court of Ohio ruled the carelessness of the paramedic was the cause of the 

injury, and thus there was no causal link between the ownership, maintenance, or use of 

the ambulance and the dropping of the syringe. Id. at ¶ 14. The fact that the injury 

occurred inside the vehicle was not dispositive because to rule in such a manner would 

supplant the causation requirement. Id.

{¶ 39} In this case, Boyd Akers was returning to the vehicle after parking and 

exiting the vehicle because he was angry at something a passenger in the vehicle had 

done. But after Boyd Akers parked the vehicle along the side of the freeway, he embarked 

on a bizarre course of conduct that put him and others at risk. Here, as in Stenger, the 

chain of events may have started when Boyd Akers was inside the vehicle and his 
No. 15AP-836 10 

daughter did something that upset him. But the subsequent, intervening conduct of Boyd 

Akers in crossing eight lanes of interstate highway, having a telephone conversation and 

re-crossing the highway broke the chain of causation such that Curry's injuries were the 

result of Boyd Akers' unlawfully or negligently entering the freeway and interfering with 

traffic rather than from the operation, maintenance or use of an uninsured motor vehicle. 

Curry's bodily injury arose from the intervening conduct of Boyd Akers rather than from 

the use of an uninsured motor vehicle. 

{¶ 40} We find Rainsberg distinguishable in that the conduct of the pedestrians on 

the Ohio Turnpike in that case was related to trying to divert traffic away from a stalled 

vehicle. There were no intervening acts unrelated to the use of the vehicle, and the 

conduct was related to the operation (or lack of operation) and use of the vehicle. 

V. AMANDA AKERS' IMPUTED NEGLIGENCE 

{¶ 41} In addition to Boyd Akers' negligence in parking his vehicle on the side of a 

major highway and interfering with traffic on both sides of I-270, Curry also argues that 

Boyd Akers' negligence should be imputed to Amanda Akers under the doctrine of 

imputed negligence. Curry contends that under this doctrine, Amanda Akers was 

operating, maintaining, or using the 1990 Buick Century and therefore should be liable for 

Boyd Akers' negligence. 

{¶ 42} Under the doctrine of imputed negligence, "[w]here the owner of a motor 

vehicle being driven by another is an occupant thereof, a rebuttable presumption or 

inference arises that the owner has control over it and that the driver is acting as his agent 

in operating the vehicle." Ross v. Burgan, 163 Ohio St. 211 (1955), paragraph one of the 

syllabus. Moreover, "[i]n the absence of evidence to rebut such presumption, any 

negligence of the driver in operating the motor vehicle is imputable to the owner riding 

therein." Id. at paragraph two of the syllabus. 

{¶ 43} Here, Boyd Akers was not operating or using the motor vehicle when he 

caused the accident that resulted in Curry's bodily injury. As discussed above, Boyd 

Akers' behavior in exiting the vehicle and crossing a busy freeway on foot was an 

intervening cause of injury unrelated to the use of the vehicle. Thus, the doctrine of 

imputed negligence is inapplicable to this case. 
No. 15AP-836 11 

{¶ 44} Curry also contends that Amanda Akers negligently entrusted the 1990 

Buick to Boyd Akers because she knew or should have known that he was driving with a 

suspended license. Curry argues that Amanda Akers was the owner and a passenger of 

the 1990 Buick Century that was not insured for bodily injury liability at the time of the 

accident. She entrusted the keys and use of the vehicle to Boyd Akers, whose license was 

under suspension, to operate the vehicle on the day of the accident. 

{¶ 45} A claim for negligent entrustment arises when "an owner entrusts his motor 

vehicle, with permission to operate the same, to a person so lacking in competency and 

skill as to convert the vehicle into a dangerous instrumentality." Williamson v. Eclipse 

Motor Lines, Inc., 145 Ohio St. 467 (1945). "[L]iability in such cases arises from the 

combined negligence of the owner and the driver; of the former in entrusting the machine 

to an incompetent driver, and of the driver in its operation." Id. at 471. Not only must the 

owner entrust the vehicle to the driver with permission to drive, but the driver must be 

one "whose incompetency, inexperience or recklessness is known or should have been 

known by the owner." Dowe v. Dawkins, 10th Dist. No. 93AP-860 (1993), quoting 

Williamson at paragraph two of the syllabus. 

{¶ 46} Here, there is no evidence in the record that Amanda Akers had any 

knowledge that Boyd Akers was driving with a suspended license. Curry submitted an 

Ohio Bureau of Motor Vehicles Abstract showing Boyd Akers' license was suspended, but 

there was no evidence that Amanda Akers had knowledge or any reason to know that her 

father was driving under a license suspension. 

{¶ 47} Additionally, while Amanda Akers may have given her father permission to 

drive the vehicle, his operation of the vehicle did not convert it into a dangerous 

instrumentality. It was Boyd Akers' decision to exit the vehicle and cross a busy freeway 

in front of oncoming traffic that was the intervening cause of injury unrelated to the use of 

the vehicle. 

VI. CONCLUSION

{¶ 48} Based on the foregoing, we conclude that reasonable minds could only reach 

one conclusion and that conclusion is adverse to Curry. Thus, the trial court did not err in 

denying Curry's motion for summary judgment and granting summary judgment in favor 
No. 15AP-836 12 

of State Farm. The two assignments of error are overruled, and the judgment of the 

Franklin County Court of Common Pleas is affirmed. 

Judgment affirmed. 

BROWN and SADLER, JJ., concur 

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