[Cite as McComas v. Dept. of Natural Resources, 2010-Ohio-4337.]

Court of Claims of Ohio

The Ohio Judicial Center 

65 South Front Street, Third Floor 

Columbus, OH 43215 

614.387.9800 or 1.800.824.8263 

www.cco.state.oh.us

CHAZ T. MCCOMAS 

 Plaintiff 

 v. 

DEPARTMENT OF NATURAL RESOURCES, et al. 

 Defendants 

Case No. 2009-05153 

Judge Clark B. Weaver Sr. 

DECISION

{¶ 1} Plaintiff brought this action alleging negligence. The issues of liability and 

damages were bifurcated and the case proceeded to trial on the issue of liability. 

{¶ 2} This case arises as a result of a motor vehicle collision that occurred on 

June 27, 2007, at approximately 7:40 a.m., in Athens County, Ohio. At the time, plaintiff 

was operating a 1992 Honda Civic southbound on State Route (SR) 690. Dean A. 

Ludwig, an employee of defendant, the Ohio Department of Natural Resources, was 

traveling northbound on SR 690 in a 1994 Chevrolet truck, with an attached flatbed 

trailer that was loaded with heavy equipment. Ludwig was en route to Stroud’s Run 

State Park to deliver the equipment. The collision occurred when Ludwig was making a 

westbound turn onto County Road (CR) 20, also known as Stroud’s Run Road. Both 

SR 690 and CR 20 are two-lane roadways; there were no stop signs or traffic signals 

controlling traffic on SR 690. Approximately 150 feet from the intersection there is a 

steeply-graded hill that obscures vision for both northbound and southbound travelers. 

{¶ 3} Ludwig testified that he slowed almost to a stop when approaching the 
intersection and that, because of the hill blocking his view of on-coming traffic, he 

leaned his head out of the opened driver’s side window to listen for approaching traffic. 

He stated that he neither saw nor heard any traffic in any direction before he proceeded 

to make his turn. Plaintiff testified that he was traveling below the 55 mile-per-hour 

(mph) speed limit, at approximately 40-45 mph, as he crested the hill and observed 

Ludwig’s vehicle making its westbound turn through the intersection. It is undisputed 

that neither driver could see the other until plaintiff crested the hill and that, at such 

point, the collision was unavoidable due to the short distance between the crest of the 

hill and the intersection. Plaintiff’s vehicle struck the right rear axle of Ludwig’s trailer, 

which caused both extensive damage to the front of plaintiff’s vehicle and his multiple 

injuries. 

{¶ 4} Plaintiff alleges that Ludwig was negligent in failing to yield the right of way 

and that his negligence was the sole proximate cause of the accident. 

{¶ 5} In order for plaintiff to prevail upon his claim of negligence, plaintiff must 

prove by a preponderance of the evidence that Ludwig owed him a duty, that Ludwig’s 

acts or omissions resulted in a breach of that duty, and that the breach proximately 

caused his injuries. Armstrong v. Best Buy Company, Inc., 99 Ohio St.3d 79, 81, 2003-

Ohio-2573, citing Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St.3d 75, 77. 

{¶ 6} R.C. 4511.42 states: 

{¶ 7} “(A) The operator of a vehicle * * * intending to turn to the left within an 

intersection or into an alley, private road, or driveway shall yield the right of way to any 

vehicle * * * approaching from the opposite direction, whenever the approaching vehicle 

* * * is within the intersection or so close to the intersection, * * * as to constitute an 

immediate hazard.” 

{¶ 8} Additionally, R.C. 4511.39 states: 

{¶ 9} “(A) No person shall turn a vehicle * * * or move right or left upon a 

highway unless and until such person has exercised due care to ascertain that the 

movement can be made with reasonable safety * * *.” 

{¶ 10} Plaintiff maintains that he had the presumed right of way to travel 

unimpeded though the intersection as long as he did so in a lawful manner. He 

contends that he was not speeding, and the court notes that there was no evidence that 

plaintiff was otherwise driving recklessly. Plaintiff further contends that, although 
Ludwig could not have seen his vehicle until it crested the hill and the accident became 

unavoidable, Ludwig was negligent in failing to come to a complete stop and to ensure 

by listening that no traffic was approaching before commencing the westbound turn. 

Plaintiff testified that his vehicle was equipped with a “cat-back” exhaust muffler that 

dramatically intensified its sound and that should have made its approach evident. 

{¶ 11} In response, defendant argues that Ludwig exercised all care that was due 

under the circumstances. Defendant insists that, in light of the obstruction of the view, it 

is immaterial whether Ludwig came to a complete stop, since he was required to yield to 

a vehicle that he could not see in any event. Defendant also maintains that it was 

reasonable for Ludwig to come to a rolling stop at the intersection because of the 

length and weight1 of his vehicle and the amount of time it would have taken to 

completely stop and then re-accelerate, actions that would have kept his vehicle in the 

intersection and in a position of peril for a longer period of time. 

{¶ 12} In addition to plaintiff and Ludwig, the court also heard testimony from 

Trooper Fred Cook, of the Ohio State Highway Patrol. Trooper Cook testified regarding 

his measurements of the accident scene and a videotape that he produced of the 

northbound and southbound approaches to the intersection approximately three years 

after the accident. Upon review of the testimony and other evidence presented, the 

court makes the following determination. 

{¶ 13} It is undisputed that Ludwig had a duty to yield to southbound traffic and to 

exercise due care before executing his westbound turn at CR 20. Given the known 

sight obstruction, the court finds that the duty of ordinary care necessarily included the 

duty to listen carefully before proceeding into the intersection. Indeed, Ludwig testified 

that he knew that he would not be able to see whether any southbound traffic was 

approaching, and so that is why he chose to lean out from the truck window to listen. 

The court finds that once such action is undertaken, it must be done with all due care 

required under the circumstances and Ludwig’s testimony that he did so lacked 

credibility. The court is particularly persuaded in this regard by Trooper Cook’s 

videotape (Defendant’s Exhibit A), which depicts a sedan-style vehicle proceeding 

through the intersection at CR 20 and SR 690 as Cook’s vehicle, with the driver’s 

 1

According to Ludwig, the truck was approximately 20 feet long and the attached trailer was 

approximately the same length; the equipment that was loaded on the trailer was estimated at 
window open, remains stopped and waiting to turn westbound. The sound of the 

approaching vehicle is clearly audible on the videotape and is sufficiently clear to put a 

driver on notice that it would not be safe to proceed with a westbound turn until the 

other vehicle had passed through the intersection. Moreover, in this case, the sound of 

plaintiff’s vehicle, with its amplified muffler system, should have been readily discernible. 

The court concludes that whether Ludwig came to a complete stop or did not, he failed 

to exercise due care before proceeding into and through the intersection. 

{¶ 14} Nonetheless, even though plaintiff had the right of way as he approached 

the intersection, and was driving below the 55 mph speed limit, R.C. 4511.21, provides: 

{¶ 15} “(A) No person shall operate a motor vehicle * * * 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 motor 

vehicle * * * 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.” (Emphasis added.) 

{¶ 16} In State v. Dehnke (1974), 40 Ohio App.2d 194, the court explained that: 

“[i]n considering the wording of [R.C. 4511.21], we find that the single basic requirement 

is that the speed be reasonable under the circumstances existing. The statutory limits 

for various types of roads or highways furnishes a two pronged presumption affecting 

the presentation of evidence. A speed in excess of the statutory limit is a prima facie 

unreasonable speed; a speed at or below the statutory limit is a prima facie reasonable 

speed. But the ultimate criterion is that the speed be reasonable considering the 

conditions then existing.” Id. at 195-196. 

{¶ 17} The court found plaintiff to be a credible witness and does not doubt his 

testimony that he was traveling below the speed limit, or at approximately 40-45 mph. 

Plaintiff also testified that, prior to the accident, he had traveled SR 690 on many 

occasions, that he was aware of the blind spot created by the hill and that, although he 

had never previously had either an accident or a “near miss” at the location, he 

considered the intersection at CR 20 to be dangerous, “messed up,” and “scary.” He 

noted that deer were known to cross the road in that area during the early morning 

hours, or about the time that he was traveling on the day of the accident. 

{¶ 18} In Trooper Cook’s video, it can be seen that the intersection is located in a 

 

approximately four tons. 
rural area, that SR 690 is a hilly, curving roadway with forested land on either side and 

that on southbound SR 690, well before the intersection, there is a yellow cautionary 

sign depicting the symbol for an intersection ahead. The court notes that below the 

intersection sign there is second cautionary sign with the wording “20 mph” as a 

suggested speed limit. Also located along the roadway are cautionary signs warning of 

deer crossing and a sharp incline at the intersection. The presence of those signs in the 

area persuades the court that a speed of 40-45 mph is not prudent when approaching 

the intersection. 

{¶ 19} Moreover, “[w]hile it is true that generally one has a right to assume that 

other drivers will exercise due care and observe the law, this does not permit one to 

drive blindly down the highway. A driver is always under a duty to exercise ordinary 

care under the circumstances.” Orr v. Zeff (Mar. 26, 1980), Hamilton App. No. C790022. The court finds that, given plaintiff’s knowledge of the dangerous condition of 

the intersection, his familiarity with the surroundings, and the potential for interaction 

with deer or other wildlife, a lower speed than 40-45 mph would have been reasonable. 

Accordingly, Ohio’s comparative fault statute, R.C. 2315.33,2

 is applicable. 

{¶ 20} Although the court recognizes that the collision occurred at a very poorlydesigned intersection, that issue was not raised at the trial. However, when such 

intersections are encountered by members of the motoring public, it is incumbent upon 

them, in the exercise of ordinary care, to effectively utilize their experience and 

judgment to negotiate those intersections safely. Upon consideration of the testimony 

and other evidence presented, the court finds that plaintiff has proved his negligence 

claim by a preponderance of the evidence; however, the degree of fault attributable to 

him in failing to drive at a reasonable speed for the existing conditions is 50 percent. 

Judgment shall be entered accordingly in favor of plaintiff and the case shall be set for 

 2

R.C. 2315.33 provides: 

 “The contributory fault of a person does not bar the person as plaintiff from recovering damages 

that have directly and proximately resulted from the tortious conduct of one or more other persons, if the 

contributory fault of the plaintiff was not greater than the combined tortious conduct of all other persons 

from whom the plaintiff seeks recovery in this action * * *. The court shall diminish any compensatory 

damages recoverable by the plaintiff by an amount that is proportionately equal to the percentage of 

tortious conduct of the plaintiff * * *.” 
trial on the issue of damages. 

Court of Claims of Ohio

The Ohio Judicial Center 

65 South Front Street, Third Floor 

Columbus, OH 43215 

614.387.9800 or 1.800.824.8263 

www.cco.state.oh.us 

CHAZ T. MCCOMAS 

 Plaintiff 

 v. 

DEPARTMENT OF NATURAL RESOURCES, et al. 

 Defendants 

Case No. 2009-05153 

Judge Clark B. Weaver Sr. 

JUDGMENT ENTRY

 This case was tried to the court on the issue of liability. The court has 

considered 

the evidence and, for the reasons set forth in the decision filed concurrently herewith, 

judgment is rendered in favor of plaintiff. The case will be set for trial on the issue of 

damages which shall be reduced by 50 percent, to account for plaintiff’s contributory 

negligence. 

 _____________________________________ 

 CLARK B. WEAVER SR. 

 Judge 

cc: 

 
Adam H. Leonatti 

929 Harrison Avenue, Suite 205 

Columbus, Ohio 43215 

Frank E. Todaro 

Robert J. Wagoner 

471 East Broad Street, Suite 1303 

Columbus, Ohio 43215-3853 

James P. Dinsmore 

Peter E. DeMarco 

Assistant Attorneys General 

150 East Gay Street, 18th Floor 

Columbus, Ohio 43215-3130 

LH/cmd/Filed September 2, 2010/To S.C. reporter September 14, 2010