[Cite as O'Brien v. Dept. of Transp., 2019-Ohio-724.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

Sean O'Brien, : 

 Plaintiff-Appellant, : 

 No. 18AP-231 

v. : (Ct. of Cl. No. 2015-00785)

Department of Transportation, : (REGULAR CALENDAR) 

 Defendant-Appellee. : 

 

D E C I S I O N 

Rendered on February 28, 2019 

 

On brief: Bressman Law, and David A. Bressman; Webb 

Legal Group, William T. Webb, and Jennifer D. Su, for 

appellant. Argued: William T. Webb.

On brief: [Dave Yost], Attorney General, William C. Becker, 

and Frank S. Carson, for appellee. Argued: William C. 

Becker.

 

APPEAL from the Court of Claims of Ohio 

BRUNNER, J. 

{¶ 1} Plaintiff-appellant, Sean O'Brien, appeals an adverse judgment of the Court 

of Claims of Ohio entered on March 6, 2018. The judgment held that defendant-appellee, 

Department of Transportation ("ODOT"), was not liable to O'Brien for injuries he incurred 

as a passenger in a motor vehicle collision that O'Brien alleges was caused by ODOT's 

negligence. For the reasons that follow, we reverse and remand this matter to allow O'Brien 

to present expert human factors testimony as to causation; that is, whether the signage 

ODOT installed for the intersection caused the driver of the vehicle in which O'Brien was a 

passenger to make the mistake that resulted in the collision and O'Brien's ensuing injuries. 
No. 18AP-231 2 

I. FACTS AND PROCEDURAL BACKGROUND 

A. Overview 

{¶ 2} This negligence action arose out of a motor vehicle collision that occurred in 

Knox County, Ohio, on August 3, 2010, on State Route 95 ("SR 95"), where it intersects with 

Mishey Road (a.k.a. County Road 55, or CR 55) to the east and Old Mansfield Road (a.k.a. 

County Road 5, or CR 5) to the south ("the intersection"). The issues of liability and 

damages were bifurcated, and the case proceeded to a four-day trial before a magistrate on 

the issue of liability. O'Brien alleged that ODOT failed to follow the Ohio Manual of 

Uniform Traffic Control Devices ("OMUTCD" or "manual") with respect to the signage in 

advance of the intersection; it failed to post signs that were mandatory under the OMUTCD, 

and the discretionary signs it posted were not properly placed under the OMUTCD. O'Brien 

argued, because the signs ODOT had posted in advance of the intersection were 

inappropriate and/or in the wrong location, the driver traveling south on SR 95 was not 

afforded positive guidance and, thus, was unprepared for the actual layout of the 

intersection. O'Brien argued this was negligence on ODOT's part and caused the driver to 

make the mistake that resulted in the collision and, consequently, his injuries. O'Brien 

offered lay and expert witnesses, including a human factors expert, to show that ODOT was 

negligent with respect to the signage posted in advance of the intersection. 

{¶ 3} ODOT argued that this was not a case about signs because the driver of the 

car in which O'Brien was a passenger testified he did not remember the signs. Based on 

this, ODOT argued that the collision occurred because the driver was driving too fast and 

not paying attention. ODOT objected to the testimony of O'Brien's human factors expert 

arguing it was immaterial based on the driver's testimony, and impermissible under Evid.R. 

702 because it neither related to matters beyond the knowledge or experience possessed by 

laypersons nor dispelled a misconception among laypersons. ODOT presented the 

testimony of a person who rendered assistance at the collision site and overheard the 

driver's excited utterances, an accident reconstructionist, and the administrator of the 

ODOT's Office of Roadway Engineering. 

{¶ 4} The magistrate found that the driver of the vehicle in which O'Brien was a 

passenger had failed to use reasonable care to observe the roadway, and that his failure to 

do so was the sole proximate cause of O'Brien's injuries. Accordingly, the magistrate 

recommended judgment in favor of ODOT. O'Brien timely filed objections to the 
No. 18AP-231 3 

magistrate's decision. The Court of Claims overruled O'Brien's objections, adopted the 

magistrate's decision and recommendation, and entered judgment in favor of ODOT. 

B. Facts 

{¶ 5} The morning of August 3, 2010, O'Brien was a passenger in a vehicle operated 

by Joseph Alexander ("Alexander"), the father of his girlfriend, Jody Alexander ("Jody"). 

Alexander's wife, Judith Alexander, and Jody also were passengers in the car. The 

Alexanders were driving O'Brien to an airport in Columbus, Ohio, via a scenic route in Knox 

County. Alexander was driving south on SR 95, a two-lane rural highway. SR 95 is a 

through highway with a sharp curve at the intersection with Mishey and Old Mansfield 

Roads. Mishey Road runs east-west and intersects SR 95 from the east. Old Mansfield Road 

runs north-south and intersects SR 95 from the south. Stop signs control traffic from 

Mishey Road and Old Mansfield Road entering onto SR 95. A southbound driver such as 

Alexander must navigate a sharp curve to the right to remain on SR 95. A southbound 

motorist who drives straight, instead of following the curve, will travel through the 

intersection, crossing the northbound lane of SR 95, onto Old Mansfield Road. The portion 

of SR 95 where the accident occurred had a posted speed limit of 55 m.p.h., with a posted 

advisory speed limit of 20 m.p.h. for the curve. 

{¶ 6} The roadway had the following signs and pavement markings in place on the 

day of the accident for motorists on SR 95 south in advance of the intersection. First, a 

yellow diamond-shaped intersection warning sign (W2-2)1 was located on the right side SR 

95 south; the sign bore black symbols of a side intersection approaching from the left, and 

the words "Mishey Road." Then two yellow diamond-shaped horizontal alignment signs 

with a black symbol of a right turn arrow, and an advisory speed (W1-1) of 20 m.p.h. were 

on both the left and right sides of SR 95 south. Those two signs were parallel to one another 

and preceded a hill that obscured the intersection. Next, a brown, rectangular directional 

sign with white letters that stated "Knox Lake" and "Boat Ramps, Marina," with white, 

vertical arrows pointing upward to indicate that the lake, boat ramps, and marina were 

straight ahead, and was on the right side of SR 95 south. Next, two chevrons (W1-8) 

pointing to the right were located on the left side of SR 95. Two large, yellow, rectangular, 

horizontal alignment signs with arrows (W1-6) that point to the right were placed adjacent 

 

1 The roadway signs are identified as they appear in OMUTCD, 2005 Revision 1. 
No. 18AP-231 4 

to both Mishey Road and Old Mansfield Road, facing motorists on SR 95 south. Additional 

chevrons pointing right were located through the curve southwest of the large arrow boards. 

A double yellow center line separated the two lanes of traffic on SR 95 and curved sharply 

to the right for motorists following SR 95 south, but the center lines ended at the 

intersection. The double yellow lines began again on SR 95 immediately west of the 

intersection. The white edge line on the right side of SR 95 also curved to the right. South 

of the break in the double yellow centerline on SR 95, a double yellow center line was also 

visible on Old Mansfield Road. A yellow diamond-shaped "Dead End" sign was located on 

the right side of Old Mansfield Road south of the intersection. (ODOT's Ex. I.) 

{¶ 7} The collision occurred at the intersection after Alexander failed to follow the 

sharp right curve to remain on SR 95 south, and instead drove straight through the 

intersection toward Old Mansfield Road to the south, and collided with a motor vehicle 

operated by Pamela Riggleman, who was traveling north on SR 95 to Mishey Road. The 

Alexander vehicle flipped one or two times, coming to rest on its roof next to Old Mansfield 

Road. O'Brien was ejected from the vehicle and sustained serious injuries. Alexander was 

driving approximately 40 m.p.h. when he went through the intersection. 

{¶ 8} O'Brien filed his complaint on September 10, 2015. He alleged the accident 

"was a direct and proximate result of the breach of duties, resulting from the negligence, 

negligence per so, recklessness, strict liability, violation of statutory duty/duties or other 

actions of malfeasance, misfeasance and nonfeasance of [ODOT]." (Mar. 6, 2015 Compl. at 

¶ 10.) O'Brien further alleged ODOT had breached its duty to exercise reasonable care, 

including controlling traffic flow, safety signage, and other responsibilities related to 

making highways safe for the usual and ordinary course of travel. Finally, O'Brien alleged 

ODOT had failed to adhere to minimum standards imposed by law to exercise reasonable 

care in controlling traffic flow, safety signage, and other responsibilities related to making 

highways safe for the usual and ordinary course of travel, "said standards contained in, inter 

alia, the Ohio Manual of Traffic Control for Construction and Maintenance Operations, the 

Federal Manual of Traffic Control for Construction and Maintenance Operations, and the 

Traffic Control Application Standards Manual." (Compl. at ¶ 18.) 

{¶ 9} On October 17, 2016, the case proceeded to trial before a magistrate as to 

liability only. O'Brien's theory of the case was that ODOT was negligent in its placement of 
No. 18AP-231 5 

signs in advance of the intersection, such that it failed to adequately warn Alexander that 

SR 95 south curved sharply to the right, as opposed to continuing south through the 

intersection, a failure that proximately caused the collision. In support of his claims, 

O'Brien presented ten witnesses, including three experts, to establish that (1) Alexander 

was prevented from understanding that SR 95 curved to the right due to the topography of 

SR 95, including the hill that obscured the intersection, the slope of SR 95, and the fact that 

Old Mansfield Road was visible in the distance, (2) ODOT failed to place adequate signage 

at the intersection, and (3) ODOT's actions were the proximate cause of the accident, and 

therefore his injuries. O'Brien also offered numerous exhibits that were admitted into 

evidence. 

{¶ 10} Alexander testified that, at the time of the collision, he was 63 years old and 

was living in Antwerp, Ohio2 with his wife. He further testified that he had a long career 

with the American Electric Power Company ("AEP"), which required him to drive 

extensively around Ohio, on both rural and urban roadways. He estimated that, by August 

2010, he had driven approximately 750,000 to 1,000,000 miles on Ohio roadways. He also 

testified that, due to his work, he had taken numerous defensive driving courses through 

which he learned techniques that he incorporated into his everyday driving. He described 

some of the techniques to the magistrate. He further testified that he attended weekly safety 

meetings throughout his career, many of which stressed safe driving. 

{¶ 11} Alexander testified that he was not particularly familiar with SR 95, and that 

he had not driven through the intersection in a number of years. He testified that he had 

not consumed any alcohol that morning nor taken any medication that would have affected 

his ability to drive. He was not in a rush to get to Columbus. He testified that he was well 

rested and had been driving only about 10 or 15 minutes before the collision occurred. He 

was not distracted by conversation, eating, drinking, or using a cell phone or any other 

device while he was driving. 

{¶ 12} Alexander estimated that his speed was 40-45 m.p.h. as his vehicle 

approached the summit of the hill north of the intersection. Alexander stated that he did 

not remember seeing any warning signs in advance of the intersection. He testified that it 

 

2 Antwerp, Ohio is located in Paulding County in northwestern Ohio, approximately 145 miles from the site of 

the collision. 
No. 18AP-231 6 

appeared to him that SR 95 went straight and curved slightly to the right past the summit 

of the hill. After cresting the hill and beginning to descend toward the intersection, 

however, he saw SR 95 turning to the right. He stated that, by that time, it was too late to 

make the turn, so he continued straight into the intersection. He saw the Riggleman vehicle 

on SR 95 north in his peripheral vision and accelerated to get out of the way. Riggleman, 

however, had begun to travel from SR 95 to Mishey Road and struck the Alexander vehicle 

broadside. The Alexander vehicle rolled once or twice before coming to rest on its roof in a 

grassy area adjacent to Old Mansfield Road. 

{¶ 13} Judy Alexander testified that the day of the accident was the first time she 

had traveled through the intersection. She stated she remembered seeing a curve sign 

before the hill, but did not realize that the road they were traveling on (SR 95) would curve, 

and that she did not see the curve until the collision. 

{¶ 14} O'Brien presented the testimony of Ruth Auker, Allison Lowery, and James 

Singrey, who lived near the collision site. Each testified about the times they had witnessed, 

over the past 30 to 40 years, the aftermath of accidents at the intersection, or drivers who 

had ended up in a field after missing the curve on SR 95, or the ODOT road signs for the 

intersection knocked down. 

{¶ 15} O'Brien's first expert was Henry Lipian, an accident reconstructionist from 

Grafton, Ohio, whose company, Introtech Incorporated, has investigated and reconstructed 

transportation casualties and crashes, including watercraft, aircraft, and motor vehicle 

crashes, since 1989. Lipian performed accident reconstruction during his service in the U.S. 

Coast Guard and his employment with the Ohio State Highway Patrol and the Hunting 

Valley (Ohio) Police Department. He obtained training in accident reconstruction from 

Northwestern University, the University of North Florida, Texas A&M University, and the 

Society of Automotive Engineers. He is accredited through the Accreditation Commission 

of Traffic Accident Reconstruction, the only international accreditation for this line of work. 

Lipian testified he is familiar with the OMUTCD. 

{¶ 16} At O'Brien's request, Lipian's company had performed an accident 

reconstruction to determine the point of impact and the speed of the vehicles, and whether 

Alexander's speed prevented him from safely negotiating the sharp curve. Lipian and his 

team did not interview Alexander in preparing the report. Lipian testified that his team 
No. 18AP-231 7 

examined the scene of the accident, photographed the intersection and its approach, drove 

the intersection and made a video recording of the drive, and reviewed the crash report and 

police photographs of the intersection taken just after the accident. His team also took 

measurements using a "total station," which allowed them to accurately map the 

intersection, including topography. (Tr. Vol. 1 at 122.) Based on these measurements, 

Lipian and his team calculated the speed of the Alexander vehicle as 42 m.p.h., and the 

speed of the Riggleman vehicle as 53 m.p.h. 

{¶ 17} Lipian also determined the point of impact of the vehicles, which 

demonstrated that Alexander was going straight through the intersection at the time of the 

crash, indicating that Alexander missed SR 95's curve to the right. Lipian also noted that he 

had not seen any evidence that Alexander had tried to slow down or take evasive action 

before the collision. Lipian included these findings in his report dated April 1, 2014, which 

was admitted as evidence at trial. Lipian's report contains a section titled "Contributing 

Factors," which states in part: 

Human error by Mr. Alexander caused the crash, but his error 

must be balanced against the concepts of positive guidance, 

poor roadway geometry and the Ohio Manual of Uniform 

Traffic Control Devices. The deceptive nature of the 

intersection, coupled with inadequate positive guidance and 

contradictory traffic control combined with Mr. Alexander's 

unfamiliarity with the path of travel contributed to the cause of 

the crash. The lack of positive guidance and false visual cue 

nature of the roadway were the primary factors to the cause of 

this crash. Other than provide an array of conflicting, confusing 

and visual overloaded traffic control devices, the state fell far 

short of providing a safe and effective guidance system for 

drivers unfamiliar with the roadway. This conclusion is 

evidenced by the crash rate for this area of SR 95 as well as the 

numerous skid mark and tire mark evidence during our scene 

inspection. 

* * * 

In order for a driver to avoid a situation hazard, they must have 

sufficient time and distance to perceive, react and take 

corrective action. Many factors can contribute to the result of a 

crash, including the lack of proper traffic control warning 

devices, line of sight restrictions posed by horizontal curves and 

hills as in this case. 
No. 18AP-231 8 

It is my opinion to a reasonable degree of certainty in the field 

of crash reconstruction that the absence of positive guidance on 

SR 95 should be considered as a major contributing element to 

the cause of this crash. The State of Ohio failed in its 

responsibility to meet the most basic tenet of traffic control 

devices: 

Support: The purpose of traffic control devices, as well as the 

principles for their use, is to promote highway safety and 

efficiency by providing for the orderly movement of all road 

users on streets and highways throughout the Nation. [Fn. 10. 

OMUTCD page 1A-1] 

These opinions are expressed to a reasonable degree of 

scientific and reconstructive certainty and are based upon data 

that is currently available for review and analysis. * * * 

(Emphasis sic.) (O'Brien Ex. 7 at 16-17.) 

{¶ 18} The second expert O'Brien presented was Kimberly Nystrom, P.E., a traffic 

engineer from Granite Bay, California and the former chief traffic engineer for the State of 

California, to provide her opinions, as a traffic engineering expert, as to ODOT's negligence 

and to provide an opinion as to causation. Nystrom testified that the intersection was not 

properly signed and violated both mandatory and recommended provisions in OMUTCD. 

{¶ 19} Nystrom testified about the engineering concept of positive guidance, which 

she explained is a highway department's way of communicating with drivers. She described 

positive guidance as follows: 

Positive guidance is basically the interaction between what a 

traffic engineer places, signing, striping, delineators, that type 

of thing, and the driver. It's the communication. 

So positive guidance is putting up these devices or markings to 

convey a meaning to allow the driver to understand what is 

present or coming up so that they can drive accordingly. The 

positive [aspect] is basically giving them the confidence and the 

assurance that as they're driving, they don't need to stop, slow, 

drive erratically to figure out what's going on. They're assured, 

which is that positiveness of what's -- what they're 

approaching. * * * 

It's the human factors component of the traffic engineering 

world. 

(Tr. Vol. 2 at 484.) Nystrom stated that traffic engineers are always using principles of 

positive guidance in their decision-making, so it is a part of the training of competent traffic 
No. 18AP-231 9 

engineers. She explained that driver expectancy comes from the field of human factors, 

and that traffic engineers use this concept when making decisions. She testified that the 

OMUTCD is all about the concept of driver expectancy. Nystrom stated that traffic 

engineers' main goal is to never surprise a motorist: 

Because at that point, not being a psychologist, you just don't 

know what somebody is going to do. Are they going to stop in 

the middle of the road? Are they going to pull over 

unexpectedly? Are they going to put on their brakes and be 

rear-ended? People do a lot of strange things when they're 

surprised. 

(Tr. Vol. 2 at 488.) 

{¶ 20} Nystrom testified further that, although ODOT did not have a duty to 

redesign the intersection, various factors associated with the intersection demonstrated 

that the intersection was not visible for a sufficient amount of time for motorists to identify 

the sharp turn on SR 95 and to safely navigate it. She stated that the intersection was 

located just past a vertical curve—a hill in the roadway—that prevented drivers from seeing 

the intersection until they crested the hill. Nystrom testified as to the visibility of the 

intersection, or intersection sight distance, which she stated is important because a large 

majority of accidents occur due to visibility issues. She stated that adequate sight distance 

is required at every point of the road, and so she "looked at the sight distance provided for 

stopping conditions, as well as for decision conditions." (Tr. Vol. 2 at 494.) She testified 

that Ohio's Location and Design Manual helped her to determine whether the intersection 

posed a hazard because it discussed intersection sight distance. She explained that the term 

intersection sight distance "is the ability of a driver to see the intersection in its entirety. 

And what that means is every leg, 60 feet back and the center, to that, that's seeing the 

intersection. They need to be able to see that with enough distance to make a decision." (Tr. 

Vol. 2 at 500.) Nystrom testified that the sight distance for the intersection was zero. 

{¶ 21} Nystrom also testified as to problems with ODOT's signage and striping for 

the intersection, stating that ODOT had violated mandatory provisions set forth in 

OMUTCD. On cross-examination, she summarized her opinions as to the one-one large 

arrow board and the chevron alignment signs as follows: 

I'm saying that these warning signs have a purpose, but they 

are not used appropriately. And my personal view is they took-

- these and basically just placed them all over without 
No. 18AP-231 10 

understanding how they're to be used and how they're 

understood by drivers. I spoke yesterday about the chevrons. 

There's a huge gap -- as you can see even in this photograph, 

there's a huge gap that these don't at all serve the purpose and 

the intent of what a chevron if for. And these arrows are not 

aligned -- because they're supposed to be in the direction that 

the vehicle is going so that they see an arrow right in front of 

them. And you can see in this [Exhibit G] they don't. So minus 

the striping, which didn't exist on the day of the accident, it 

appears the road goes straight through unless these arrows are 

here to where you want to turn right. But there's no indication 

to motorists that SR 95 turns to the right. 

(Tr. Vol. 3 at 693.) 

{¶ 22} The third expert O'Brien presented was William Vigilante, Ph.D., a 

psychologist who has worked as a forensic consultant in the field of human factors for the 

past 15 years. O'Brien asked Dr. Vigilante to provide an opinion as to how Alexander would 

have cognitively processed the signage for the intersection, how that might have influenced 

his thought process and decision making as he approached the intersection, and how it 

affected what he remembered about the warning signs and the events before, during, and 

after the collision. 

{¶ 23} Dr. Vigilante began by generally describing what human factors entails, as 

follows: 

Human factors is the science that studies how people interact 

with their use. All different types of products, machines, 

systems. For example, vehicles, cars, SUVs, trucks. And 

roadway systems, highway systems. 

Human factors is focused on people that use these products 

and systems. So we are interested in how people capture 

information through our senses, for example, visual 

perception, auditory perception. How people make use of that 

information, that is how they process that information, also 

known as cognition. How people store information in their 

memory, both short-term and long-term memory. How people 

make decisions. How things like expectancies and prior 

experiences affect those decisions and how we interpret 

information that we obtain through our senses. And then how 

we're able to respond, different stimulus in situations and 

events. 

Human factors is an applied science. So we work with 

engineers, architects, designers and so forth to help design 
No. 18AP-231 11 

systems, whether they be roadway systems, vehicles, car, et 

cetera. And our goal is to design systems that are safe, easy to 

use and don't exceed the capacity of the people that are asked 

or expected to be using the system. 

(Tr. Vol. 3 at 735.) 

{¶ 24} Dr. Vigilante next described how human factors relate to traffic engineering: 

Specifically human factors is related to traffic engineering in 

the design of the roadway and the traffic controls and so forth 

that are providing information to the driver along the roadway. 

So examples are issues related to sight distance, both stopping 

sight distance and decision sight distance. That is how much 

sight distance does a driver need in which to obtain 

information from the roadway and then process and act upon 

that information to successfully navigate either a roadway or a 

hazard in the roadway and that is based upon human factors 

research related to perception/reaction time. Things -- traffic 

controls as laid out in the Ohio MUTCD and the federal 

MUTCD, a lot of the requirements for consistency and 

uniformity are based upon the concepts of positive guidance, 

which is a concept from the human factors psychology 

literature and research. And that is based upon the concept of 

expectancy, which is another human factors psychologyrelated concept. 

(Tr. Vol. 3 at 748-49.) 

{¶ 25} Dr. Vigilante testified about the concept of expectancies, which he defined as 

"beliefs or understandings how different activities, situations, events or systems work or 

are supposed to work." (Tr. Vol. 3 at 757.) He stated: 

Expectancies result from the consistent implementation of the 

way products or systems are designed. And then based upon 

that consistent design, people build expectancy so that they 

don't have to sit and think about how the lights come on when 

they walk into a room. It's an automatic thought. You hit the 

light switch, the lights go on. If there weren't consistency to 

build expectations, we would lose a lot of efficiency because it 

would require us to examine and think about things before we 

do them. All the time. And that's not the way that we function. 

(Tr. Vol. 3 at 757-58.) Dr. Vigilante explained that drivers develop expectancies, of which 

there are two different types: a priori and ad hoc. A priori expectancies are those that are 

built over a long period of time. He used as an example the color red, which is seen as 
No. 18AP-231 12 

meaning hot, or stop, or danger. In comparison, ad hoc expectancies are learned in a sitespecific situation. 

{¶ 26} Dr. Vigilante next testified about the concept of expectancy violation, which 

he stated was "essentially any presentation of a system or event or an activity that violates 

your expectancy. Whether it's apriori [sic] or ad hoc. So it runs counter to what you would 

typically or normally expect." (Tr. Vol. 3 at 761.) He then testified about the effect an 

expectancy violation has on traffic safety: 

Typically [an expectancy violation] results in a need for a longer 

perception/reaction time. You have to -- it takes longer for you 

to think about what happened and then respond to it. So it 

takes longer to identify the situation, detect it, identify it and 

process the information and make a decision. So you need 

more time. And if you're not presented with that time, you run 

into consequences. So another negative consequence of 

expectancy violation is increase in error. So you're more likely 

to make an error when your expectancy is violated. 

With respect to [a] roadway, you're more likely to be involved 

in a crash, so crash risk is a direct consequence. Increase in 

crash risk is a direct consequence of expectancy violation. 

Also, with expectancy violation, you need more information to 

understand what is happening and what is needed. And what 

you're supposed to do. With the expectancy violations, an 

event, a hazard needs to be more salient. It needs to be a 

stronger stimulus to capture your attention, to get you to notice 

that it's there. 

So things that are expected or are easier to see, easier to find. 

Things that are unexpected are harder to find and harder to see. 

And of course in the driving environment, you want things to 

be relatively easy to see and relatively easy to find. One way you 

do that is through consistent presentation. 

(Tr. Vol. 3 at 762-63.) 

{¶ 27} Dr. Vigilante explained the concept of expectancy reinforcement—which he 

described as anything that reinforces a pre-existing expectancy—and its dangers in traffic 

engineering.

{¶ 28} ODOT objected to Dr. Vigilante's testimony, asserting that Dr. Vigilante had 

nothing to offer the magistrate, as the finder of fact, that was beyond the magistrate's 

knowledge and experience, and that the magistrate "[didn't] need a psychologist to come in 
No. 18AP-231 13 

and tell [her] what the psychology is in terms of how a driver might react to the roadway." 

(Tr. Vol. 3 at 769.) ODOT stated further that "the only thing that matters is how did the 

driver of the PT Cruiser react[ed] to the roadway. You've heard his testimony. You know 

what it is. For [Dr. Vigilante] to say that [Alexander] had that reaction or whatever reaction 

he's going to say is pure speculation." (Tr. Vol. 3 at 769-70.) 

{¶ 29} O'Brien's counsel replied that Dr. Vigilante's testimony would help to explain 

what was going on in Alexander's head as he was driving prior to the collision, and would 

give the magistrate the tools to understand how it is that people, as drivers and as human 

beings, interact with ODOT's road signs.3

 

3 O'Brien's brief identifies the following portion of the trial transcript, as the proffer regarding Dr. Vigilante's 

testimony: 

THE COURT: Mr. Webb? 

MR. WEBB: Sure. I'm quite confident after spending three days with you 

that you are perfectly capable of making good decisions. And -- but one of 

the things that I found when I got involved in this case, and on a personal 

note, this is the first time I've dealt with any of this, it's been fascinating for 

me because what Dr. Vigilante is going to testify about now and for the next, 

you know, hour or so are these concepts of how it is that we get from point 

A to point B. 

I think we've all had the experience of, you, driving, driving home and then 

-- driving someplace and it may be someplace we're familiar with, it may be 

someplace we're not even familiar with, and then when we're all finished, we 

don't even remember exactly where it was we've been, but yet somehow 

we've got here. 

And that process, I've always been interested in that and I've figured out 

dealing with, reading the literature, talking with Dr. Vigilante, working with 

him as to how it is that that happens. And I understand the State wants us 

to be a very simple case about the fact this was driver error on behalf of Mr. 

Alexander. It is. Absolutely. Mr. Alexander made a mistake. But the more 

interesting question is why. What was going on in his head. 

We know there wasn't anything going on in the car. We know there wasn't, 

you know, there weren't any impairment issues or anything along those 

lines. There hasn't been any evidence of that and there isn't going to be. So 

what about the system and what about -- and this was a gentleman -- this 

wasn't somebody who was a newbie driver. This was -- this was an almost 

perfect scenario from the standpoint that he had logged about, you know, 

somewhere between three-quarters and a million miles, I think was his 

testimony, on rural roads in Ohio. He had received defensive driving 

training. He had -- and he was practicing those techniques. And he was 

paying attention. He was driving straight ahead. He had both hands on the 

wheel. And yet somehow he missed the turn. And the question is how? How 

did that happen? 
No. 18AP-231 14 

{¶ 30} ODOT argued that Dr. Vigilante's proffered testimony was impermissible 

under Evid.R. 702 because it "offer[ed] nothing more than what you already know and what 

you have by the other evidence in this case to decide." (Tr. Vol. 3 at 775.)4 Additionally, 

 And Dr. Vigilante is here to help give you the tools so that you can 

understand how it is that we, as drivers, and as human beings interact with 

these signs. Because what the warning signs are is they are the Department 

of Transportation's way of communicating with us. And I might 

communicate with you by sending you an email. I might talk to you. I might 

put a sticky note on your chair. Something along those lines. But what these 

warning signs are is ODOT's way of interacting with us. And that's -- yes, it's 

through visual because some of it is -- some of the input is visual and this is 

what -- the question that I am getting into right now. I said what kind of 

information is being processed and how is it processed. And that's not 

something that I knew. 

And if this is your first experience in this kind of case, then it's probably not 

something you know as a fact finder either. And that's why we've brought 

Dr. Vigilante here because he, as an expert, will be able to tell you that this 

is the type of information that is being -- that's being absorbed. This is how 

the mind absorbs it and then discards it afterwards as well. And then -- all 

of these types of things. And they tie in extremely well with what-- both with 

what Hank Lipian testified to and about what Ms. Nystrom testified to as 

well. Because this is a human factors case. This is all about human factors. 

Traffic engineering is all about it. 

And so that's why we're here. That's what the issue is. And that's why the 

question is proper and the answer should be allowed.

(Tr. Vol. 3 at 770-73.) 

4 ODOT's response to the proffer is set forth as: 

THE COURT: Okay. Mr. Becker, are you -- 

MR. BECKER: I'm sorry, Your Honor. 

THE COURT: Did you want to say something else? 

MR. BECKER: Yes. Evidence Rule 702, testimony by experts. All of the 

following must apply, A, the witness's testimony either relates to matters 

beyond the knowledge or experience possessed by laypersons or dispels a 

misconception among laypersons. 

I would be the first to say that if there was an airplane crash, I'm not a pilot, 

I don't know that you are, but my guess is you'd want to hear from a pilot in 

terms of how an airplane is flown. If this was a train crash, you'd probably 

want to hear from a train engineer in terms of how the train is operated. This 

is a car crash. We all understand how to drive a car. This isn't something 

that's going to rise to the level -- and of course this rule is written for juries, 

but as it's applied to you as a layperson -- you're probably beyond a 

layperson, but again, this witness has to offer you something beyond your 

knowledge and experience. He doesn't. 
No. 18AP-231 15 

ODOT argued that anything Dr. Vigilante would offer on the topic of positive guidance 

would not be of value because positive guidance is an engineering concept, and he is not an 

engineer. Finally, ODOT argued that anything Dr. Vigilante would offer on the topic of 

expectancy would be cumulative. 

{¶ 31} Thereafter, the magistrate allowed Dr. Vigilante to testify only about two 

issues: (1) what he knew about perception/reaction time and (2) whether there was some 

misconception that was common to laypersons with regard to the case. This ruling barred 

him from testifying about the concept of working memory. Additionally, the magistrate 

stated she would give Dr. Vigilante's testimony the weight that, in her opinion, it deserved. 

{¶ 32} ODOT next objected to Dr. Vigilante testifying about the concept of positive 

guidance because it was outside the scope of the magistrate's ruling as to the two issues 

Dr. Vigilante was allowed to testify. ODOT argued, moreover, that guidance was an 

engineering concept, and "[p]sychologists should not be testifying about the guidance on a 

roadway." (Tr. Vol. 3 at 792.) She sustained ODOT's objection, and stated: 

What I'm specifically interested in hearing from this witness is 

the following: If he had any expertise on perception/reaction 

time, if he can relate that expertise to the roadway and the 

signage, that's what I'd like to hear. We've heard all day from 

Ms. Nystrom who is an engineer. I understand her testimony. 

I've gotten her testimony. 

* * * 

So if you can limit his testimony to anything specialized -- any 

specialized knowledge that this witness has about 

perception/reaction time in combination with -- if he has any 

expertise about signage that was there at the time, that's what 

 The other thing that Mr. Webb just said is that he's going to tell you how the 

mind works. Well, there can't be anything more speculative than that. So 

what they're going to try to do, I guess they are, is to have this witness put 

himself in the mind of the driver of the PT Cruiser. That is just pure 

speculation. There's no other way to account for it. 

So by the rules of evidence, with regard to expert testimony, at least this 

question, and probably many more, are not going to fit in what is 

permissible for this Court to consider. This is -- this expert is offering you 

nothing more than what you already know and what you have by the other 

evidence in this case to decide. 

(Tr. Vol. 3 at 773-75.) 
No. 18AP-231 16 

I would like to hear. And if he has any expertise about a 

misperception that lay people would have, then I'd like to hear 

that. But we've gotten his background, we've gotten all that 

stuff. I think we need to speed it up and focus on those issues 

and let's go ahead. 

(Tr. Vol. 3 at 792-93.) 

{¶ 33} The magistrate allowed ODOT to have a continuing objection as to Dr. 

Vigilante's testimony about guidance, and stated that all she wanted to know is what Dr. 

Vigilante could "add from a human factors perspective to show what [Alexander] was 

looking at from the signage that was in place at the time, * * * what's the misperception that 

he can dispel about that? I mean * * * I'm still just very concerned that his testimony is not 

necessary." (Tr. Vol. 3 at 802.) 

{¶ 34} Dr. Vigilante discussed the perceptual problem the intersection posed to 

drivers because of the visual information presented to the driver. He testified that the 

signage ODOT used for the intersection developed and reinforced drivers' expectancies in 

advance of the intersection and increased the danger when those expectancies were violated 

when they finally saw or reached the intersection. Dr. Vigilante stated: 

The visual features of the roadway add to that as a 

misperception, adds to that misidentification. It results in the 

driver making a misidentification because he misidentifies the 

situation. It's a direct result of the configuration of the roadway 

and the signs that were up there providing him with false and 

misleading guidance. 

(Tr. Vol. 3 at 832.) 

{¶ 35} O'Brien's counsel then asked Dr. Vigilante to testify about misperceptions of 

the human factors issue of positive guidance, but the magistrate would not allow it, stating 

that the limited information she wanted from him was whether there was any 

misconception among laypersons that he could dispel. 

{¶ 36} The magistrate also barred Dr. Vigilante from testifying about 

misconceptions regarding working memory and long-term memory, stating that there was 

no testimony that Alexander had forgotten the signs, only that he did not remember what 

they were. The following exchange then occurred between the magistrate and counsel: 

 THE COURT: But there's no testimony that he saw a sign and 

then forget what it said. So let's not -- 
No. 18AP-231 17 

MR. WEBB: And that may not be the testimony. But that's –

that's what [ODOT's] argument is. [ODOT's] argument is that 

he saw these signs and then ignored them for some reason. 

Now he claims that he forgot the signs. And that's not how 

memory works. And this is something -- this is a misperception 

that laypersons have. So it really will take one minute. 

MR. BECKER: It's not a matter of how long it takes in terms of 

an evidentiary objection. And that mischaracterizes the 

evidence in this case. The driver testified he doesn't remember 

seeing any signs. 

MR. WEBB: Right. 

MR. BECKER: That's been his testimony. He has no 

recollection of seeing any signs. That's all we have. 

MR. WEBB: Exactly. But see, their whole point, and this it tied 

to other misperceptions that we've already talked about, which 

is that this -- these signs entered his field of vision and therefore 

he should remember them. If he had -- if he had been affected 

by them, then he should remember having been affected by 

them. And he doesn't. 

And what Dr. Vigilante is going to tell you from a human factors 

standpoint and from a psychologist's standpoint is the -- he just 

testified it's the only field that studies human memory. What 

he's going to do is explain how it is that Mr. Alexander can be 

driving down the road, see signs and maybe -- I don't know, 

perhaps perceive them; but regardless, see them at least and 

then not remember them right after the accident. And that's 

something that is well beyond the ken of the ordinary 

layperson. 

THE COURT: That's not the testimony in this case. The 

testimony in this case is that he doesn't remember the signs. He 

doesn't say that he saw the signs and then he doesn't remember 

what they said. He doesn't say any of that. He says he thought 

the road went straight. 

MR. WEBB: Right. 

THE COURT: That's his testimony. He went straight and he got 

struck by a car. That's it. I don't think this witness needs to 

testify about that at all. 

(Tr. Vol. 3 at 836-38.) 
No. 18AP-231 18 

{¶ 37} Dr. Vigilante proceeded to testify that the signs were misleading and did not 

correct the perceptual problems with the intersection. He explained that there is a big 

difference between looking at still photographs of the intersection years after the accident 

and being a driver unfamiliar with the intersection, encountering the intersection and SR 

95's sharp curve to the right in real time. 

{¶ 38} We note that the report Dr. Vigilante prepared for this litigation (Plaintiff's 

Exhibit 22) contained 11 findings and was admitted into evidence. The report indicates Dr. 

Vigilante used the following materials in its preparation: Ohio Traffic Crash Report; 

O'Brien's complaint; deposition transcripts and exhibits of Joseph Alexander, Henry P. 

Lipian, and Andrew E. Ramisch; reports of Lipian and Ramisch; digital copies of 13 color 

scene photos, 45 black and white scene photos and 207 color site photos taken by Lipian's 

team at Introtech; 2 videos of the site taken by Introtech; 3 videos of the site taken by others; 

Ohio Traffic Crash Reports for collisions at the subject intersection. The "Analysis" section 

of the report covers the following human factor topics: 

 E.1. Positive Guidance. 

 E.2. Expectancy Violation and Misleading Guidance.

 E.3. ODOT Failed to Provide Adequate Positive Guidance.

 E.4. Alexander Inability to remember the road signs is 

expected.

(O'Brien's Ex. 22 at 5-17.) 

{¶ 39} ODOT presented the testimony of Freddie Okulich, a motorist who stopped 

to render assistance soon after the collision. Okulich testified that Alexander "was in 

hysterics" immediately after the accident and saying, "[l]ook what I've done. I wasn't paying 

attention." (Tr. Vol. 4 at 954.) Okulich also testified Alexander "was saying stuff that he 

was going too fast for the turn. He forgot about the turn." (Tr. Vol. 4 at 954.) 

{¶ 40} David Holstein, a licensed engineer in the state of Ohio, testified that he had 

worked for ODOT for 26 years and was the administrator of ODOT's Office of Road 

Engineering. He stated he had been responsible for revising the OMUTCD for the prior 18 

years. He has served on the AASHTO traffic committee, a national group of state traffic 

engineers. Holstein testified that SR 95 became a state route in the 1930s. The OMUTCD 

in effect at the time of the underlying collision was the 2005 version, Revision 1. 

{¶ 41} Holstein testified about each sign that was in place for the intersection on the 

day of the collision, stating that all the signage in place in advance of the intersection was 
No. 18AP-231 19 

optional per the OMUTCD in effect at the time of the collision.5 He testified further that 

the signs mandated by Sections 2D.27 through 2D.30 of the OMUTCD were not required 

to be posted for the intersection. 

 

5 The magistrate summarized Holstein's testimony about the signs as follows: 

According to Holstein, all of the signage in place in advance of the 

intersection was optional per the [OMUTCD] in effect at the time. Holstein 

explained that the Mishey Road sign is an intersection warning sign that 

provides notice to motorists that there is an impending intersection and 

vehicles might be entering from the left. (Defendant's Exhibit C; section 

2C.37 of the manual.) With regard to the two right turn signs (W1-1), 

Holstein stated that they are known as horizontal alignment signs, and their 

purpose is to warn that there is a change in the direction of the road that the 

motorist is traveling on. Although "turn" signs were in place, Holstein 

testified that SR 95 has a curve, not a turn. In addition, the chevrons and the 

two large arrow boards are additional horizontal alignment warning signs to 

notify motorists to follow the curve in the roadway. Holstein stated that the 

[OMUTCD] is based on national best practices, however, there are times 

that ODOT makes a variation due to its discretionary engineering judgment. 

On cross-examination, Holstein testified that the 20 mph advisory speed 

was determined by driving around the curve multiple times with a ball bank 

indicator, which calculates the speed in which a motorist should be able to 

comfortably traverse the curve. Although he did not conduct the test 

himself, he testified that he believed the advisory speed of 20 mph was 

reasonable for the curve. Holstein disagreed with Nystrom's opinion that an 

advance route turn assembly and/or junction assembly was required at the 

intersection. 

Section 2D.27 of the OMUTCD states that: "Route Sign assemblies shall be 

installed on all approaches to numbered routes that intersect with other 

numbered routes." Section 2D.28 states that: "The Junction assembly shall 

be installed in advance of every intersection where a numbered route is 

intersected or joined by another numbered route." Section 2D.29 states that: 

["An Advance Route Turn assembly] shall be installed in advance of an 

intersection where a turn must be made to remain on the indicated route." 

In Holstein's experience, Section 2D.29 does not pertain to this intersection, 

because a southbound motorist on SR 95 would simply navigate the curve 

to stay on the indicated route. A southbound driver does not need to turn 

onto a different road to remain on SR 95. According to Holstein, use of an 

advanced route turn sign is required when a motorist must turn onto a 

different road to remain on the indicated route. Moreover, although two 

roads intersect with SR 95, Holstein testified that the side roads are not 

"numbered routes" as stated in the manual, so section 2D.27 would not 

pertain to this intersection. Specifically, Holstein testified that in this case, 

any signs as set forth in Sections 2D.27 through 2D.29 were not called for at 

this intersection. Holstein explained: "Southbound 95 is going through a 

curve. That's why we had numerous chevrons, numerous – we had multiple 

large arrows. So the proper application is to give drivers of southbound 95 

information that their horizontal alignment is about to change." (Transcript, 

p. 51.)
No. 18AP-231 20 

{¶ 42} By decision filed September 1, 2017, the magistrate concluded that O'Brien 

had failed to prove by a preponderance of the evidence that ODOT had breached any 

mandatory duty as set forth in the OMUTCD. The magistrate stated: 

After a review of the testimony and evidence presented, the 

magistrate finds that the testimony of Holstein was more 

credible and persuasive than that of Nystrom. Although there 

was much testimony regarding the use of the words "turn" and 

"curve," the photographs and video of the roadway clearly show 

that to remain on SR 95 southbound, a motorist would follow 

the curve in the roadway to the right. Although it is a sharp 

curve, the magistrate finds that no "turn" must be made to 

remain on the indicated route as stated in Section 2D.29 of the 

OMUTCD. A motorist must navigate a curve in the existing 

roadway to remain on the indicated route. Accordingly, the 

magistrate finds that [ODOT] was not required to place an 

Advance Route Turn Assembly in advance of this intersection 

because a motorist did not need to turn onto a different 

roadway to remain on the indicated route. In addition, the 

magistrate finds that a route junction assembly was not 

required, in that Mishey Road and Old Mansfield Road were 

not "other numbered routes" as contemplated in the 

[OMUTCD]. Thus, the magistrate finds that [O'Brien] has 

failed to prove by a preponderance of the evidence that ODOT 

breached any mandatory duty as set forth in the OMUTCD. 

(See Section 2D.27-29 of the OMUTCD.) 

(Sept. 1, 2017 Mag.'s Decision at 15.) 

{¶ 43} The magistrate stated further: 

With regard to the signs that were in place at the time of the 

accident, the greater weight of the evidence shows that all the 

signs were optional pursuant to the manual. (See Sections 

2C.37; 2C.06; 2C.09; 2C.10 of the OMUTCD.) Although 

[O'Brien's] experts criticized the Mishey Road intersection sign 

because it did not accurately depict the physical appearance of 

the intersection, the magistrate finds that the manual did not 

require an exact depiction of the appearance of the 

intersection. Rather, the purpose of this optional sign was to 

"indicate the presence of an intersection and the possibility of 

turning or entering traffic," and that it should illustrate and 

depict the general configuration of the intersecting roadway, 

such as Mishey Road. (Section 2C.37 of the OMUTCD.) In 

addition, all experts agreed that the advisory speed limit of 20 

mph was reasonable for the curve. The magistrate further finds 

 

(Sept. 1, 2017 Mag.'s Decision at 12-13.) 
No. 18AP-231 21 

that ODOT had discretion to use its engineering judgment to 

place advisory speed signs with a right turn arrow in advance 

of the hill that obscured the curve to warn motorists to reduce 

their speed. The greater weight of the evidence shows that the 

signage in place adequately warned motorists of a curve ahead 

in the roadway. Furthermore, the magistrate finds that [ODOT] 

complied with Table 2C-5 of the manual when it used "turn" 

signs instead of "curve" signs to warm of the curve based upon 

the results of the ball bank test, in that engineering judgment 

was used to determine a safe speed for the curve. Finally, with 

regard to Nystrom's criticisms of the existing signage, the 

modified advisory warning signs that she suggested are also in 

the optional category of signs. Although Nystrom would have 

used different signage herself, her preference of other optional 

signs does not prove that [ODOT's] use of optional signage was 

negligent. [O'Brien] has failed to prove that the existing signage 

did not adequately warn motorists of a change of alignment in 

the roadway. 

Assuming, arguendo, that ODOT was negligent in its use of 

signage or in its failure to place an advanced route turn 

assembly, [O'Brien] has failed to prove that any breach by 

ODOT was the proximate cause of his injuries. * * * 

Id. at 16-17. 

{¶ 44} The magistrate reviewed Alexander's testimony that he did not remember 

seeing any signs: 

Alexander testified that he did not remember seeing any signs, 

including the four arrow signs, three chevrons, and two 

advisory speed signs that were posted. Alexander did not testify 

that any signs misled him into thinking to continue south. At 

most, he testified that he thought SR 95 continued to the south 

because he could see Old Mansfield Road in the distance. 

Furthermore, although Old Mansfield Road is visible in the 

distance, a "Dead End" sign is also visible in the accident 

photos, and the white edge line on SR 95 southbound clearly 

curves to the right. 

Id. at 17. 

{¶ 45} The magistrate next discussed the speed at which Alexander was driving, 

stating that "the evidence shows that Alexander was traveling both greater than 20 mph 

advisory speed and too fast for the conditions of the roadway." Id. at 17. The magistrate 

noted that O'Brien's expert witness, Lipian, had "conceded that if Alexander had reduced 
No. 18AP-231 22 

his speed to the advisory speed, he would have been able to observe that the route he was 

traveling on curved to the right." Id. The magistrate concluded: 

The common law of Ohio imposes a duty of reasonable care 

upon motorists, which includes the responsibility to observe 

the environment in which one is driving. Hubner v. Sigall, 47 

Ohio App.3d 15, 17 (10th Dist. 1988). The magistrate finds that 

Alexander did not use reasonable care to observe the roadway, 

and that his failure to use reasonable care was the sole 

proximate cause of [O'Brien's] injuries. Accordingly, judgment 

is recommended in favor of [ODOT]. 

Id. at 17-18. 

{¶ 46} We observe that, although the magistrate's decision contains a summary of 

Dr. Vigilante's testimony,6 her earlier representation that she would give Dr. Vigilante's 

 

6 The magistrate's decision contains the following summary of Dr. Vigilante's testimony on the topics the 

magistrate allowed: 

Vigilante testified that human factors is the science that studies how people 

interact with the use of vehicles and roadway systems; how people capture, 

store, and interpret information, and make decisions. He testified that 

issues related to sight distance, perception reaction time, and expectancy are 

used to develop traffic control devices. Vigilante testified that human factors 

concepts are found throughout the OMUTCD, in examples of consistency or 

signage and traffic control devices. 

Vigilante testified that there were multiple visual cues for Alexander to 

continue straight instead of curving to the right through the intersection. 

One example was the physical configuration of the intersection, where Old 

Mansfield Road continued straight south of the intersection. Another 

example was the Mishey Road sign, which Vigilante stated gave Alexander 

an expectancy that there was a "T" intersection. He added that the two right 

turn arrow signs placed after the Mishey Road sign gave a driver the 

impression that the road would turn to the right after the "T" intersection. 

He also testified that photos from the accident scene show that the advisory 

turn signs could signal to a driver that the curve was for Old Mansfield Road, 

and that since the double yellow line breaks but is also visible on Old 

Mansfield Road, a driver could assume that he was required to go straight 

ahead instead of turning right. He opined that had the appropriate signage 

been in place, Alexander would have had the right positive guidance to make 

the turn. 

On cross-examination, Vigilante acknowledged that Alexander did not 

testify that he was confused by the signs on the roadway, but Vigilante 

believes that the signs were "misleading" to a driver. According to Vigilante, 

the "T" intersection sign tells a driver that there is a "T" intersection and 

then a turn, not that those two conditions would happen simultaneously. He 

also testified that the five chevrons and two large arrow boards pointing to 
No. 18AP-231 23 

testimony the weight that, in her opinion, it deserved, was hampered by her earlier 

decisions limiting the admissibility of much of his testimony. In short, the evidence the 

magistrate needed to properly consider the application of the law to the evidence before her 

was inadequate for the claims of this action. 

{¶ 47} On September 14, 2017, O'Brien filed the following objections to the 

magistrate's decision: 

1. The Magistrate erred in holding that [ODOT] was not 

negligent per se for its failure to place signs in the manner 

mandated by the [OMUTCD]; 

 2. The Magistrate erred in holding that ODOT was not 

negligent for the manner in which it signed and striped the 

intersection, although the testimony of negligence was 

undisputed; 

3. The Magistrate erred in disallowing and ignoring evidence 

regarding the science of human factors as it pertains to the 

related issues of negligence regarding the signage of the 

intersection in question and causation; 

4. The Magistrate erred in refusing to allow evidence regarding 

ODOT's installation of Advance Route Turn Assemblies postaccident, and the unrebutted evidence is that the use of these 

signs reduced the number of crashes at the intersection, 

proving causation; 

5. The Magistrate erred in disallowing evidence that the 

intersection has a reputation of being unsafe; 

6. The Magistrate's Decision is against the manifest weight of 

the evidence and is not supported by the evidence; 

7. The Magistrate erred in her findings of fact, omitting many 

salient facts, and stating others inaccurately; 

8. The Magistrate erred in her conclusions of law; and 

9. The Magistrate erred in not conducting a site visit[.] 

(O'Brien's Objs. at 1-2.) 

 the right were confusing, and that Alexander was not responsible for the 

accident due to the confusing signage. 

(Mag.'s Decision at 10-11.) 
No. 18AP-231 24 

{¶ 48} ODOT, after receiving an extension, filed a response to the objections on 

October 10, 2017. 

{¶ 49} By judgment entry issued March 6, 2018, the Court of Claims found that the 

magistrate had properly determined the factual issues and had appropriately applied the 

law. The Court of Claims adopted the magistrate's decision and recommendations, 

including the findings of fact and conclusions of law contained therein, as its own. The 

Court of Claims overruled O'Brien's objections and rendered judgment in favor of ODOT. 

{¶ 50} O'Brien now appeals the judgment of the Court of Claim. 

II. ASSIGNMENTS OF ERROR 

{¶ 51} O'Brien presents four assignments of error for our review: 

1. The trial court erred when it entered judgment for the 

Defendant Department of Transportation ("ODOT"). 

2. The trial court erred in holding that ODOT did not 

violate any mandatory provisions set forth in the 

OMUTCD. 

3. The trial court erred in holding that ODOT is immune 

for its negligence in posting several discretionary signs 

that attempted to warn of an impending intersection. 

4. The trial court erred in ignoring largely unrebutted 

evidence that ODOT's negligence and negligence per se 

caused the collision. 

III. LAW AND DISCUSSION 

A. Standard of Review 

{¶ 52} A trial court's ruling concerning the admission of expert testimony is within 

the broad discretion of the trial court and will not be disturbed absent of abuse of discretion. 

Scott v. Yates, 71 Ohio St.3d 219, 221 (1994). An appellate court's standard of review for 

reviewing a trial court's ruling to admit or exclude evidence is a review based on whether 

the trial court committed an abuse of discretion that amounted to prejudicial error. Gordon 

v. Ohio State Univ., 10th Dist. No. 10AP-1058, 2011-Ohio-5057, ¶ 82, citing State v. Yohey, 

3d Dist. No. 9-95-46 (Mar. 18, 1996), citing State v. Graham, 58 Ohio St.2d 350 (1979), 

and State v. Lundy, 41 Ohio App.3d 163 (1st Dist.1987). An abuse of discretion "connotes 
No. 18AP-231 25 

more than an error of law or judgment; it implies that the court's attitude is unreasonable, 

arbitrary or unconscionable." Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

B. Assignments of Error 

1. O'Brien's Fourth Assignment of Error: Exclusion of Human Factors 

expert's testimony 

{¶ 53} We first consider O'Brien's fourth assignment of error, as we believe it to be 

dispositive in this matter. Ohio law is clear that ODOT is only liable for accidents that are 

proximately caused by its failure to conform to the requirements of the OMUTCD. Pierce 

v. Ohio Dept. of Transp., 23 Ohio App.3d 124 (10th Dist.1985). See also Lumbermens Mut. 

Cas. Co. v. Ohio Dept. of Transp., 49 Ohio App.3d 129 (10th Dist.1988). 

{¶ 54} O'Brien contends that the Court of Claims erred in refusing to admit and 

consider the human factors evidence and in ignoring the evidence that Alexander was 

exercising reasonable care as he drove. O'Brien asserts that Ohio courts have permitted 

human factors experts to testify as to how humans interact with and use machines and 

systems, including cars and roadways. O'Brien further asserts that, at trial, he introduced 

"unrebutted human factors testimony as to how ODOT's negligence caused the accident, 

including such principles as perception/reaction time, and offered other such evidence that 

was not admitted." (O'Brien's Brief at 2.) 

{¶ 55} ODOT counters that this matter "centers on a person driving down a roadway 

and not proceeding and responding to the signs posted. It does not relate to knowledge or 

experience beyond a lay person. And despite the magistrate's repeated query to [O'Brien's] 

counsel as to how a human factors expert could dispel a misconception common among lay 

persons, none was offered." (ODOT's Brief at 28.) ODOT argues that Alexander testified 

that he did not remember any warning signs in advance of the intersection, not that he had 

been misled or confused by any signs. ODOT argues, therefore, that the magistrate did not 

err in sustaining its objection to O'Brien's human factors expert testifying about working 

memory in relation to what Alexander could recall about what warning signs he would have 

seen before the collision. 

{¶ 56} Based on our thorough review of the record, we are not persuaded that this 

matter is as simple or straightforward as ODOT contends. 
No. 18AP-231 26 

{¶ 57} The testimony of expert witnesses is governed by Article VII of the Rules of 

Evidence. Evid.R. 702 sets forth the following test for determining whether an expert may 

be allowed to testify: 

A witness may testify as an expert if all of the following apply: 

(A) The witness' testimony either relates to matters beyond the 

knowledge or experience possessed by lay persons or dispels a 

misconception common among lay persons; 

(B) The witness is qualified as an expert by specialized 

knowledge, skill, experience, training, or education regarding 

the subject matter of the testimony; 

(C) The witness' testimony is based on reliable scientific, 

technical, or other specialized information. To the extent that 

the testimony reports the result of a procedure, test, or 

experiment, the testimony is reliable only if all of the following 

apply: 

(1) The theory upon which the procedure, test, or experiment 

is based is objectively verifiable or is validly derived from 

widely accepted knowledge, facts, or principles; 

(2) The design of the procedure, test, or experiment reliably 

implements the theory; 

(3) The particular procedure, test, or experiment was 

conducted in a way that will yield an accurate result. 

A trial court need not consider testimony within the general knowledge of a lay person. 

Phillips v. Miller, 10th Dist. No. 88AP-147 (Dec. 22, 1988). 

{¶ 58} Evid.R. 703 through 705 provide for limitations on an expert's testimony. 

"The facts or data in the particular case upon which an expert bases an opinion or inference 

may be those perceived by the expert or admitted in evidence at the hearing." Evid.R. 703. 

"Testimony in the form of an opinion or inference otherwise admissible is not objectionable 

solely because it embraces an ultimate issue to be decided by the trier of fact." Evid.R. 704. 

"The expert may testify in terms of opinion or inference and give the expert's reasons 

therefor after disclosure of the underlying facts or data. The disclosure may be in response 

to a hypothetical question or otherwise." Evid.R. 705. ODOT's arguments to the effect that 

a car crash does not require an expert opinion because the act of driving was within the 

ambit of the magistrate's experience as a factfinder, was not based in law, and the 
No. 18AP-231 27 

magistrate abused her discretion in heeding it and limiting expert testimony from Dr. 

Vigilante in creating the body of evidence on which she would base her decision. We point 

to ODOT's argument before the magistrate:

This is a car crash. We all understand how to drive a car. This 

isn't something that's going to rise to the level -- and of course 

this rule is written for juries, but as it's applied to you as a 

layperson -- you're probably beyond a layperson, but again, this 

witness has to offer you something beyond your knowledge and 

experience. He doesn't. 

The other thing that Mr. Webb just said is that he's going to tell 

you how the mind works. Well, there can't be anything more 

speculative than that. So what they're going to try to do, I guess 

they are, is to have this witness put himself in the mind of the 

driver of the PT Cruiser. That is just pure speculation. There's 

no other way to account for it. 

(Tr. Vol. 3 at 773.) 

{¶ 59} The State of Ohio's duty exists to maintain Ohio's highways in a reasonably 

safe condition. R.C. 5501.11; Knickel v. Ohio Dept. of Transp., 49 Ohio App.2d 335, 339 

(10th Dist.1976); White v. Ohio Dept. of Transp., 56 Ohio St.3d 39, 42 (1990). As part of 

what is considered to be "reasonably safe," human and psychological factors cannot be 

ignored or argued away with rules of informality because an experience may be common to 

many people. Not all people walk the same way (or even can walk for that matter) and not 

all people experience driving in the same way. The approach advocated by ODOT of 

working practically straight from the magistrate's own driving experience and apparently 

adopted by the magistrate in her manner of evidentiary rulings is unreasonable, arbitrary, 

and unconscionable. Blakemore. It constitutes an abuse of discretion. Id.

{¶ 60} ODOT is statutorily mandated to adopt a manual and specifications for a 

uniform system of traffic control devices, and that uniform system "shall correlate with, and 

so far as possible conform to, the system approved by the federal highway administration." 

R.C. 4511.09. "The [OMUTCD] has been adopted as the state's official specifications for 

highway signs and markings pursuant to the mandate of R.C. 4511.09. R.C. 4511.10 requires 

ODOT to comply with the MUTCD in erecting and maintaining highway signs and 

markings." White at 42, citing Slavick v. Ohio Dept. of Transp., 44 Ohio App.3d 19, 22-24 

(10th Dist.1988); Pierce at 127-28; cf. Royce v. Smith, 68 Ohio St.2d 106 (1981). We 
No. 18AP-231 28 

acknowledge that this Court has previously determined that not all portions of the manual 

are mandatory and, therefore, some areas are within the discretion and engineering 

judgment of ODOT. Perkins v. Ohio Dept. of Transp., 65 Ohio App.3d 487 (10th 

Dist.1989). But without a fuller complement of the evidence, O'Brien sought to have 

admitted to prove both negligence and causation by the State of Ohio as to the placement 

of roadway signs, considerations of whether certain signs or markings were required or 

optional is not dispositive of whether the signs were placed correctly and (with expert 

testimony from Dr. Vigilante) they would have been perceived by an oncoming driver. 

{¶ 61} ODOT asserts that O'Brien never proffered the testimony that would have 

been elicited from Dr. Vigilante regarding the relevant human factors to show significant 

and substantial error and that "without such a proffer, the Court of Appeals is in no position 

to determine whether this was a significant and substantial error. 'Failure to make a proffer 

constitutes a waiver of the right to object to the evidentiary issue on appeal.' Maghie & 

Savage, Inc., v. P.J. [D]ick, Inc., 10th Dist. No. 08AP-487, 2009-Ohio-2164 ¶50, citing 

State v. Grubb, 28 Ohio St.3d 199, 203 503 N.E.2d 142 (1986)." (ODOT's Brief at 28.) 

{¶ 62} Based on our review of the record, we find that O'Brien adequately proffered 

the testimony that would have been elicited from Dr. Vigilante regarding human factors, 

had Dr. Vigilante been permitted by the magistrate to testify on that issue. O'Brien 

specifically proffered that Dr. Vigilante was going to testify, from a human factors 

standpoint and from a psychologist's standpoint, how Alexander could have driven down 

SR 95, seen or perceived the signs, and then not remembered them right after the accident, 

a concept well beyond the knowledge of layperson. 

{¶ 63} In Deffinbaugh v. Ohio Turnpike Comm., 67 Ohio App.3d 692, 699-700 (8th 

Dist.1990), the Eighth District Court of Appeals considered the admissibility of expert 

human factors testimony: 

Joe Kent, O.T.C.'s expert with respect to accident 

reconstruction, prepared two computer generated simulations, 

the printouts of which were admitted into evidence. 

* * * 

It appears that the courts of the state of Ohio have not 

considered the admissibility of computer simulation for 

purposes of accident reconstruction. When confronted with a 

newly applied scientific principle, the Supreme Court of Ohio 
No. 18AP-231 29 

has endorsed a flexible standard in accord with our Rules of 

Evidence. State v. Williams (1983), 4 Ohio St.3d 53, 4 OBR 

144, 446 N.E.2d 444. In Williams, the Supreme Court of Ohio 

stated: 

"We believe the Rules of Evidence establish adequate 

preconditions for admissibility of expert testimony, and we 

leave to the discretion of the state's judiciary, on a case by case 

basis, to decide whether the questioned testimony is relevant 

and will assist the trier of fact to understand the evidence or to 

determine a fact in issue." Id. at 53, 4 OBR at 144, 446 N.E.2d 

at 444. 

Evid.R. 402 provides: 

"All relevant evidence is admissible, except as otherwise 

provided by the Constitution of the United States, by the 

Constitution of the State of Ohio, by statute enacted by the 

General Assembly not in conflict with a rule of the Supreme 

Court of Ohio, by these rules, or by other rules prescribed by 

the Supreme Court of Ohio. Evidence which is not relevant is 

not admissible." 

 The admissibility of scientific testimony is referred to 

specifically in Evid.R. 702, which provides: 

"If scientific, technical, or other specialized knowledge will 

assist the trier of fact to understand the evidence or to 

determine a fact in issue, a witness qualified as an expert by 

knowledge, skill, experience, training, or education may testify 

thereto in the form of an opinion or otherwise." 

We find that the trial court properly admitted Kent's computer 

simulations. Kent's first computer simulation, Exhibit D, 

represents his opinion of how the accident occurred. It 

demonstrates that the tractor trailer, given its weight and size, 

traveling at thirty-five m.p.h., requires two hundred feet to 

reach full jackknife. Mr. Kent's second computer simulation 

established that if the accident occurred as plaintiff's expert 

claimed, then the trailer would have come to rest left of the 

through lanes and therefore not have struck the guardrail and 

bridge pier. 

Id. 

{¶ 64} The magistrate excluded Dr. Vigilante's testimony about the science of 

human factors that addresses the related issues of negligence regarding the signage of the 

intersection and causation of the accident. While we acknowledge that Alexander obviously 
No. 18AP-231 30 

made a mistake in navigating the intersection as he did, we are persuaded that the facts 

here show that a question remains as to whether his mistake was caused by the information 

a driver such as Alexander would have absorbed from the intersection signage and whether 

it properly or adequately informed him what to expect on the roadway ahead. 

{¶ 65} Based on Dr. Vigilante's report (Trial Exhibit 22, including E.4. therein), 

Alexander's excited utterances could be easily taken to be remarks of self-castigation by a 

seasoned driver made on experiencing an accident the magnitude that he and his 

passengers suffered. These utterances also would be consistent with his not specifically 

remembering any signage. Because Dr. Vigilante's expert testimony was unnecessarily 

limited, we find the Court of Claims erred in excluding it, thus denying O'Brien the 

opportunity for a complete and fair decision on his claims against ODOT. Having 

thoroughly reviewed the record, we are persuaded that Dr. Vigilante's testimony about 

human factors, including but not limited to working memory, long-term memory, positive 

guidance and perception/reaction time, was relevant to the issue of causation in this 

matter. Consequently, we find that the magistrate's ruling to exclude Dr. Vigilante's 

testimony was an abuse of discretion that amounted to prejudicial error. 

{¶ 66} Therefore, O'Brien's fourth assignment of error is sustained. 

C. O'Brien's First, Second, and Third Assignments of Error 

{¶ 67} Because we have determined to reverse and remand this matter based on 

O'Brien's fourth assignment of error, the remaining assignments of error are moot and are 

considered no further. 

IV. CONCLUSION 

{¶ 68} Accordingly, based on the foregoing reasons, we sustain O'Brien's fourth 

assignment of error and decline to consider his first, second, and third assignments of error, 

finding them to be moot. This matter is hereby remanded to the Court of Claims of Ohio 

for a new trial consistent with this decision. 

Judgment reversed and cause remanded. 

DORRIAN and HORTON, JJ., concur.