[Cite as Crosby v. Radenko, 2011-Ohio-4662.]

 IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO 

JESSICA CROSBY : 

Plaintiff-Appellant : C.A. CASE NO. 24343 

vs. : T.C. CASE NO. 09CV9538 

DZAMIC RADENKO et al. : (Civil Appeal from 

 Common Pleas Court) 

Defendants-Appellees : 

 . . . . . . . . . 

 O P I N I O N

 Rendered on the 16th day of September, 2011. 

 . . . . . . . . . 

Timothy S. Chappars, Atty. Reg. No.0007122, P.O. Box 280, Xenia, 

OH 45385 

Attorney for Plaintiff-Appellant 

Patrick McCaffrey, Atty. Reg. No.0067293; Audrey E. Varwig, Atty. 

Reg. No. 0073265, 2109 Stella Court, Columbus, OH 43215 

Attorneys for Defendants-Appellees 

 . . . . . . . . . 

GRADY, P.J.: 

{¶ 1} This is an appeal from a summary judgment for the 

defendant on the plaintiff’s claim for personal injuries and 

property loss arising from a motor vehicle collision. The 

collision took place on Interstate Route 70, near the exit for 
2

Englewood, Ohio, during the daylight hours. A tractor-trailer 

owned and operated by Unlimited Freight, Inc. was traveling in 

an eastbound direction when its driver, Dzamic Radenko, pulled 

to a stop on the berm of the right lane due to mechanical trouble 

of some sort. Whatever the difficulty was, Radenko subsequently 

attempted to reenter the same lane of travel. When he began his 

maneuvers to reenter his lane of travel, a passenger vehicle 

proceeding in the same lane of travel came to a stop behind the 

Unlimited Freight, Inc. tractor-trailer. Another tractor-trailer 

then came to a stop behind the passenger vehicle. 

{¶ 2} Jessica Crosby was driving a Honda Civic eastbound in 

the same lane of travel when she came upon the line of vehicles 

stopped ahead of her. Unable to stop to avoid colliding with the 

tractor-trailer last in line, Crosby veered into the left-hand 

lane. She lost control of her vehicle, causing it to veer back 

into the right-hand lane and collide with the tractor-trailer owned 

by Unlimited Freight, Inc. The passenger vehicle and the other 

tractor-trailer that had stopped were not involved in the 

collision. 

{¶ 3} Crosby commenced an action against Radenko and Unlimited 

Freight, Inc., on claims for relief for bodily injuries and property 

loss, alleging negligence on the part of Radenko and Unlimited 

Freight, Inc. in the operation of its tractor-trailer, and against 
3

Unlimited Freight, Inc., in failing to train Radenko. Following 

responsive pleadings and depositions, the Defendants moved for 

summary judgment. The trial court granted that motion, relying 

on the rule of intervening/superseding negligence we applied in 

Didier v. Johns (1996), 114 Ohio App.3d 746. Crosby appeals. 

ASSIGNMENT OF ERROR

{¶ 4} “THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT 

IN GRANTING APPELLEE UNLIMITED FREIGHT, INC.’S MOTION FOR SUMMARY 

JUDGMENT.” 

{¶ 5} In Didier v. Johns, we held that a plaintiff’s negligence 

per se for a violation of the assured clear distance statute, 

combined with the lack of any negligence on the part of a third 

party involved in a collision, relieved a defendant of liability 

for his prior negligent act, under the doctrine of 

intervening/superseding cause. We believe that holding merits 

reexamination. 

{¶ 6} An act or omission that falls below the particular 

standard of conduct required to satisfy a duty of care imposed 

by law is negligence. When that negligence proximately results 

in injuries and losses to other persons, the actor is legally liable 

to such persons in money damages in an amount that will compensate 

them for the injuries and losses each suffered. 

{¶ 7} Evidence of negligence may be prima facie or per se. 
4

When negligence is prima facie, the evidence of negligence is 

subject to rebuttal. When there is negligence per se, it is 

conclusive of that question. Fightmaster v. Mode (1928), 31 Ohio 

App.273. 

{¶ 8} The distinction between negligence and negligence per 

se is the means and method of their ascertainment. “The former 

must be found by the jury from the facts, conditions, and 

circumstances disclosed by the evidence, while the latter is a 

violation of a specific requirement of law or ordinance, the only 

fact for determination by the jury being the commission or omission 

of the specific act inhibited or required.” Swoboda v. Brown

(1939), 129 Ohio St. 512, paragraph four of the Syllabus by the 

Court. 

{¶ 9} “Where a legislative enactment imposes upon any person 

a specific duty for the protection of others, and his neglect to 

perform that duty proximately results in injury to such another, 

he is negligent per se or as a matter of law.” Eisenhuth v. Moneyhon

(1954), 161 Ohio St. 367, paragraph two of the Syllabus by the 

Court. 

{¶ 10} The rule of Eisenhuth is subject to two qualifications. 

 First, “[i]n order for the violation of a statute or ordinance 

to constitute negligence per se, the statute or ordinance violated 

must be a specific requirement to do or to omit to do a definite 
5

act; the violation of a statute or ordinance prescribing merely 

a rule of conduct is not negligence per se.” 70 Ohio Jurisprudence 

3d Negligence, §56. 

{¶ 11} Second, a finding of negligence per se “does not mean 

that (such) negligence was the sole proximate cause, or even a 

proximate cause, of the (event) that resulted in (the injury and 

loss.)” Smiddy v. The Wedding Party, Inc. (1987), 39 Ohio St.3d 

35, 40. The issue is for the jury if reasonable minds could differ 

as to the proximate cause of that event. Id. Similarly, if the 

jury finds that the negligence per se and the negligence of another 

party were proximate causes of that event, “the issue of comparative 

negligence is for the jury.” Id. 

{¶ 12} The contributory fault of the plaintiff may be asserted 

as an affirmative defense in a negligence action. R.C. 2315.32(B). 

 If established, the plaintiff’s contributory fault does not bar 

the 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 the action and of all other persons 

from whom the plaintiff does not seek recovery in the action. 

R.C. 2315.33. 

{¶ 13} The assured clear distance statute, R.C. 4511.21(A) 
6

states: 

{¶ 14} “No person shall operate a motor vehicle, trackless 

trolley, or streetcar 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, trackless trolley, or streetcar 

in and 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.” 

{¶ 15} Violation of the assured clear distance statute, R.C. 

4511.21, is negligence per se. Piper v. McMillan (1999), 134 Ohio 

App.3d 180. “Violation of the statute and a finding of negligence 

per se depends on whether there is evidence that the driver collided 

with an object which (1) was ahead of him in this path of travel, 

(2) was stationary or moving in the same direction as the driver, 

(3) did not suddenly appear in the driver’s path, and (4) was 

reasonably discernible.” Junge v. Brothers (1985), 16 Ohio St.3d 

1, 3. “Where conflicting evidence is introduced as to any one 

of the elements necessary to constitute a violation of the (assured 

clear distance) statute, a jury question is created.” Tomlinson 

v. Cincinnati (1983), 4 Ohio St.3d 66, 69. 

{¶ 16} The trial court found that Plaintiff-Appellant Crosby 

was negligent per se because she violated the assured clear distance 
7

statute. Crosby argues that the trial court erred in granting 

summary judgment for Unlimited Freight, Inc. and its driver, 

Radenko, because “[a] jury should have been permitted to find 

that [her] actions in taking emergency avoidance maneuvers were 

not negligent . . .” A sudden emergency can relieve an actor of 

negligence per se. The trial court rejected that contention, 

relying on Cox v. Polster (1963), 174 Ohio St. 224, which held: 

{¶ 17} “Where three motor vehicles are proceeding in the same 

direction in the same lane of traffic, the fact that the first 

car comes to a sudden stop causing the second car to swerve into 

another lane of traffic does not create a sudden emergency as to 

the third car so as to relieve the driver thereof from compliance 

with the assured-clear-distance-ahead statute in relation to the 

stopped first car.” Syllabus by the Court. 

{¶ 18} We agree with the trial court. R.C. 4511.21(A) imposed 

a duty on Crosby to maintain an assured clear distance between 

her car and the tractor-trailer immediately in front of her, which 

came to a stop in Crosby’s lane of travel. That tractor-trailer 

did not suddenly appear in Crosby’s path after returning in to 

the road. See: Ziegler v. Wendel Poultry Services, Inc. (1993), 

67 Ohio St.3d 10. Neither was the tractor-trailer concealed by 

fog, as in Ziegler. Instead, it was reasonably discernible, having 

stopped in Crosby’s path during daylight hours and absent 
8

extraordinary weather conditions. Piper v. McMillan. The fact 

that Crosby could not see Unlimited Freight, Inc.’s tractor-trailer 

at the head of the line of vehicles is immaterial to Crosby’s R.C. 

4511.21(A) violation, notwithstanding the fact that it was 

Unlimited Freight, Inc.’s tractor-trailer that Crosby subsequently 

collided with. The trial court did not err when it held that Crosby 

was negligent per se in operating her vehicle as she did. 

{¶ 19} The further issue to be determined is whether the trial 

court, having found Crosby negligent per se, erred when it granted 

summary judgment for Unlimited Freight, Inc. on the issue of 

proximate cause by applying our holding in Didier v. Johns with 

respect to the doctrine of intervening/superseding cause. 

Regarding that doctrine, in Berdyck v. Shinde (1993), 66 Ohio St.3d 

573, the Supreme Court wrote, at 584-585: 

{¶ 20} “[30] [31] The intervention of a responsible human agency 

between a wrongful act and an injury does not absolve a defendant 

from liability if that defendant's prior negligence and the 

negligence of the intervening agency co-operated in proximately 

causing the injury. If the original negligence continues to the 

time of the injury and contributes substantially thereto in 

conjunction with the intervening act, each may be a proximate, 

concurring cause for which full liability may be imposed. 

‘Concurrent negligence consists of the negligence of two or more 
9

persons concurring, not necessarily in point of time, but in point 

of consequence, in producing a single indivisible injury.’ Garbe 

v. Halloran (1948), 150 Ohio St. 476, 38 O.O. 325, 83 N.E.2d 217, 

paragraph one of the syllabus. 

{¶ 21} “[32] [33] In order to relieve a party of liability, 

a break in the chain of causation must take place. A break will 

occur when there intervenes between an agency creating a hazard 

and an injury resulting therefrom another conscious and responsible 

agency which could or should have eliminated the hazard. Hurt v. 

Charles J. Rogers Transp. Co. (1955), 164 Ohio St. 323, 58 O.O. 

119, 130 N.E.2d 824, paragraph one of the syllabus; Thrash v. 

U-Drive-It Co. (1953), 158 Ohio St. 465, 49 O.O. 402, 110 N.E.2d 

419, paragraph two of the syllabus. However, the intervening cause 

must be disconnected from the negligence of the first person and 

must be of itself an efficient, independent, and self-producing 

cause of the injury.” 

{¶ 22} In Hurt v. Charles J. Rogers Transportation Co., the 

manufacturer of forgings had negligently packaged them in a box. 

 The box was given to a trucking company for shipment. Along the 

way, the box broke open. The truck driver discovered the problem 

and attempted to repair the box. The attempt failed and the box 

again broke open, allowing one of the forgings to crash through 

the windshield of a following car. The Supreme Court held that 
10

the manufacturer, though it had negligently packed the forgings, 

was relieved of liability by the truck driver’s intervening 

negligence. The court reasoned: 

{¶ 23} “Where there intervenes between an agency creating a 

hazard and an injury resulting from such hazard another conscious 

and responsible agency which could or should have eliminated the 

hazard, the original agency is relieved from liability. A break 

in the chain of causation thereby takes place which operates to 

absolve the original agency.” Paragraph one of the Syllabus by 

the court. 

{¶ 24} In Thrash v. U-Drive-It Co., the owner of a motor vehicle 

sold it to a dealer, who resold it to the plaintiff. The plaintiff 

was injured in an accident caused by a defect in the vehicle. 

He sued the manufacturer, the prior owner, and the used car dealer. 

 The Supreme Court held that the prior owner was not legally liable, 

writing: 

{¶ 25} “Where there intervenes between an agency creating a 

hazard and an injury resulting from such hazard another conscious 

and responsible agency which could or should have eliminated the 

hazard, the original agency is relieved from liability. A break 

in the chain of causation thereby takes place which operates to 

absolve the original agency. 

{¶ 26} “* * * 
11

{¶ 27} “Although a dealer in used motor vehicles is not an 

insurer of the safety of the vehicles he sells, he is generally 

under a duty to exercise reasonable care in making an examination 

thereof to discover defects therein which would make them dangerous 

to users or to those who might come in contact with them, and upon 

discovery to correct those defects or at least give warning to 

the purchaser. Such rule is of particular significance where the 

sale of such a vehicle is accompanied by representations or 

warranties as to its fitness for use.” Paragraphs two and four 

of the Syllabus by the Court. 

{¶ 28} Hurt and Thrash illustrate a significant point. The 

“agency” that intervenes between the negligence of a primary 

tortfeasor and the injuries that could result from that 

tortfeasor’s negligence must have had a capacity to prevent that 

injury from occurring, and breached a duty to do so through the 

agency’s own negligent act or omission. Several cases have applied 

that requirement to chain-reaction collisions involving multiple 

vehicles similar in their facts to Didier v. Johns and the present 

case. 

{¶ 29} In Shinaver v. Szymanski (1984), 14 Ohio St.3d 51, a 

multi-vehicle accident occurred when Szymanski, the driver of the 

lead vehicle in a line of five vehicles, lost control and her vehicle 

came to rest after striking a guard rail. The drivers of two 
12

passenger vehicles following behind the lead vehicle were able 

to stop, but a tractor-trailer next in line was not. The 

tractor-trailer collided with the vehicle in front of it, pushing 

it and then the vehicle second in line into the Szymanski’s lead 

vehicle. The last vehicle in line, driven by Shinaver, struck 

the rear of the tractor-trailer. Shinaver was injured and his 

spouse was killed. 

{¶ 30} Shinaver commenced an action for negligence and wrongful 

death against Szymanski and others allegedly at fault. The trial 

court granted summary judgment for the defendants on a finding 

that the plaintiff, Shinaver, was contributorily negligent in 

failing to maintain an assured clear distance ahead in violation 

of R.C. 4511.21(A), relieving the defendants of liability. The 

court of appeals affirmed. The Supreme Court reversed, in part, 

finding that the trial court erred in failing to apply the 

principles of comparative negligence required by statute. 

{¶ 31} With respect to the drivers of the two passenger vehicles 

following behind the lead vehicle driven by Szymanski, both of 

which safely came to a stop, the Supreme Court held that neither 

 driver was at fault because “[t]here was no evidence whatsoever 

that any course of conduct reasonably available to (them) could 

have prevented the accident in question, nor that their conduct 

had any causal connection with plaintiff’s injuries or his wife’s 
13

death.” Id., at p. 54. Therefore, the summary judgment in their 

favor was affirmed. With respect to the driver of the 

tractor-trailer that struck the two passenger vehicles that had 

stopped, and the plaintiff, Shinaver, who struck the 

tractor-trailer, the Supreme Court held that both were negligent 

per se for violation of the assured clear distance statue, R.C. 

4511.21(A). The Supreme Court further held: 

{¶ 32} “Where the plaintiff driver is travelling immediately 

behind the defendant driver, and both parties are negligent per 

se for failing to maintain the assured clear distance ahead in 

violation of R.C. 4511.21, the question of whether the negligence 

of either party was the proximate cause of the ensuing collision, 

in which the plaintiff driver sustained personal injuries, is 

for jury determination. The defendant driver immediately ahead 

of plaintiff has no right to summary judgment.” Id., at p. 55. 

{¶ 33} In Shinaver, the respective and proportionate 

negligences of the plaintiff and the driver of the tractor-trailer 

were necessarily to be weighed pursuant to R.C. 2315.34 on 

comparative negligence principles in determining the compensatory 

damages recoverable by the plaintiff from all defendants, including 

the defendant driver of the lead vehicle, Szymanski. The doctrine 

of intervening/superseding cause did not apply. The Seventh 

District Court of Appeals wrote: “The import of Shinaver is that 
14

in a multivehicle collision case, the driver of the first or lead 

vehicle could be held liable for damages to vehicles following 

the driver if he/she was negligent.” Piper v McMillan (1999), 

134 Ohio App.3d 180, 194. Two cases cited for that proposition 

in Piper, both decisions of the Tenth District Court of Appeals, 

illustrate why the doctrine of intervening/superseding cause does 

not apply in that context. 

{¶ 34} In Grange Mutual Casualty Company v. Fleming (1982), 

8 Ohio App.3d 164, three vehicles were involved in a chain-reaction 

collision after the lead vehicle improperly came to a stop on a 

roadway, contrary to the directions from posted traffic signs. 

The next vehicle was able to come to a stop safely, but the third 

vehicle was not. It struck the second vehicle, pushing the second 

vehicle forward into the lead vehicle. The driver of the second 

vehicle was injured, and he commenced an action against the driver 

of the lead vehicle on a claim of negligence per se, for failing 

to conform to the traffic signs on the highway. The driver of 

the lead vehicle joined the driver of the third vehicle on a 

cross-claim, alleging negligence per se arising from an assured 

clear distance violation. 

{¶ 35} The trial court in Fleming directed a verdict in favor 

of the driver of the third vehicle on the driver of the lead 

vehicle’s cross-claim. The appellate court approved that holding, 
15

but not the trial court’s further holding that the negligence of 

the driver of the lead vehicle was not a proximate cause of the 

injuries suffered by the driver of the second vehicle, who was 

the plaintiff in the action. The court reasoned that, on the issue 

of foreseeability, reasonable minds could find that the driver 

of the lead vehicle “would anticipate that, although a vehicle 

immediately following him would be able to stop to avoid a 

collision, a third vehicle following the second vehicle would not 

be able to do so.” Id., at 167. 

{¶ 36} The court in Fleming also rejected the view that the 

assured clear distance violation of the driver of the third vehicle 

was an intervening cause of the plaintiff’s injuries that cut off 

the liability of the driver of the lead vehicle to the plaintiff. 

 The court held that the negligence of the driver of the lead vehicle 

“set in motion the chain of events which ensued, and the causal 

connection was not broken by (the driver of the third vehicle’s) 

negligence under the circumstances of this case. At least, 

reasonable minds could reach different conclusions on this issue.” 

Id. The court reasoned that, viewing the evidence most strongly 

in favor of the plaintiff, reasonable minds could find that the 

drivers of the first and third vehicles were concurrent tortfeasors 

whose negligences proximately caused the injuries suffered by the 

driver of the second vehicle, the plaintiff in the action. 
16

{¶ 37} The Tenth District addressed the issue again the 

following year in Baum v. Augenstein (1983), 10 Ohio App.3d 106. 

 In that case, when Defendant Goebel drove his pickup truck onto 

Interstate 71 a cattle-feeder fell from the bed of the truck onto 

the roadway. Goebel’s truck was followed by a line of vehicles, 

the first of which was able to stop without colliding with the 

feeder. The driver of the vehicle next in line, Plaintiff Baum, 

was able to stop her automobile without striking the first vehicle. 

 A pickup truck driven by defendant Augenstein struck the rear 

of the Baum vehicle, pushing it into the rear of the first 

automobile. 

{¶ 38} Baum commenced an action against Goebel and Augenstein. 

 The trial court granted a directed verdict for Goebel on his 

contention that his negligence in not securing the feeder was not 

the proximate cause of Baum’s injuries, those injuries having been 

caused by the intervening negligence of Augenstein. On appeal, 

the Tenth District reversed. The court wrote, at 107: 

{¶ 39} “Construing the evidence most strongly in favor of 

plaintiffs, the negligence of Goebel and Augenstein combined to 

proximately cause plaintiffs' injuries. Reasonable minds could 

conclude that the chain of events set in motion by Goebel's 

negligence unfolded in rapid succession in a continuous and 

unbroken fashion, with a result that the causal connection was 
17

not broken by Augenstein's negligence and he and Goebel were 

concurrent tortfeasors. Reasonable minds could reach different 

conclusions upon the issue.” 

{¶ 40} The holdings in Fleming and Baum illustrate a pertinent 

distinction with respect to the doctrine of intervening/ 

superseding cause. In order to relieve an actor of liability, 

a subsequent force must not only actively operate to produce harm 

to another after the actor’s negligent act has been committed: 

in addition, the force must be a superseding cause which by its 

intervention prevents the prior actor from being liable for the 

harm which his antecedent negligence is a substantial factor in 

brining about. Restatement of the Law Second, Torts §§ 440 and 

441. The Restatement further provides, at § 442: 

{¶ 41} “The following considerations are of importance in 

determining whether an intervening force is a superseding cause 

of harm to another: 

{¶ 42} “(a) the fact that its intervention brings about harm 

different in kind from that which would otherwise have resulted 

from the actor’s negligence; 

{¶ 43} “(b) the fact that its operation or the consequences 

thereof appear after the event to be extraordinary rather than 

normal in view of the circumstances existing at the time of its 

operation; 
18

{¶ 44} “(c) the fact that the intervening force is operating 

independently of any situation created by the actor’s negligence, 

or, on the other hand, is or is not a normal result of such a 

situation; 

{¶ 45} “(d) the fact that the operation of the intervening force 

is due to a third person’s act or to his failure to act; 

{¶ 46} “(e) the fact that the intervening force is due to an 

act of a third person which is wrongful toward the other and as 

such subjects the third person to liability to him; 

{¶ 47} “(f) the degree of culpability of a wrongful act of a 

third person which sets the intervening force in motion.” 

{¶ 48} In Baum, at paragraph one of the syllabus, the court 

encapsulated these considerations in a simple formula: “A trial 

court errs in directing a verdict in favor of a defendant where 

reasonable minds could differ on the issue of proximate cause and 

conclude that the defendant and another were concurrent 

tortfeasors.” And, “[c]oncurrent negligence consists of the 

negligence of two or more persons concurring, not necessarily in 

point of time, but in point of consequence, in producing a single 

indivisible injury.” Garbe v. Halloran (1948), 150 Ohio St. 476, 

paragraph one of the syllabus. 

{¶ 49} In Didier v. Johns, a motorcyclist was injured when he 

struck the rear of a school bus he was following after the school 
19

bus came to a sudden stop to avoid colliding with a vehicle coming 

from the opposite direction that had crossed the center line into 

the path of the school bus after the driver of the vehicle fell 

asleep. The motorcyclist commenced an action against the driver 

of the other vehicle. The trial court granted summary judgment 

for the defendant. 

{¶ 50} On appeal, we affirmed the summary judgment on findings 

that the plaintiff motorcyclist violated the assured clear distance 

statute and was negligent per se, and that the plaintiff 

motorcyclist was therefore 100% responsible for his injuries, 

despite the prior negligence of the defendant motorist, because 

 the bus driver’s non-negligent actions in stopping the bus broke 

the chain of causation. 

{¶ 51} Our rationale in Didier was flawed. “A break will occur 

when there intervenes between an agency creating a hazard and an 

injury resulting therefrom another conscious and responsible 

agency which could or should have eliminated the hazard.” Berdyck 

v. Shinde, at 585. In Didier, the hazard was created when the 

motorist allowed his vehicle to cross into the path of the school 

bus. If the school bus driver could or should have eliminated 

the hazard, but failed to do so, his intervening negligence could 

relieve the motorist of liability to the motorcyclist for the 

injuries he suffered. But, there was no basis in the record to 
20

find that the school bus driver was negligent. Indeed, we wrote 

that “the action of the bus driver in bringing his vehicle to a 

natural stop was not negligent.” Didier, at 753. It does not 

follow that a non-negligent intervening act will break the chain 

of causation between a prior negligent act and subsequent injuries 

that proximately result from that act. The Restatement holds that 

the intervening act must be “wrongful.” The non-negligent conduct 

of an intervening “actor” has no effect on the respective 

negligences of the plaintiff and the defendant or defendants, which 

must instead be resolved on comparative negligence principles. 

Shinaver v. Szymanski. 

{¶ 52} Our rationale in Didier also suffers from another major 

flaw. We held that the plaintiff motorcyclist was not entitled 

to a comparative negligence instruction, rejecting the 

“seductively appealing, but wholly pernicious, ‘but for’ analysis” 

in Fleming and Baum, regarding the issue of probable cause. We 

wrote: “The legal analysis must focus on the direct per se

negligence of the violator of the assured clear distance rule, 

as distinct from a physical analysis made pursuant to the ‘but 

for’ theory.” Id. at 754. In other words, the fact that the 

plaintiff was negligent per se is conclusive of the issue of 

proximate cause. However, that pronouncement we made in Didier

is the very view that the Supreme Court rejected in Smiddy when 
21

it wrote: 

{¶ 53} “Although we hold that appellee’s decedent was negligent 

per se, such holding does not mean that his negligence was the 

sole proximate cause, or even a proximate cause, of the collision 

that resulted in his death. Construing the evidence most favorably 

toward appellee, we hold that reasonable minds could differ as 

to the proximate cause(s) of the collision. Similarly, the issue 

of comparative negligence is for the jury if it finds that Hesketh 

[a motorist who had stopped and was struck by Smiddy’s vehicle] 

was negligent and that the negligence of both Hesketh and Smiddy 

were proximate causes of the accident.” Id., at 40 (internal 

citations omitted.) 

{¶ 54} We now believe that our holding in Didier was incorrect. 

 There was no intervening wrongful force between the prior 

negligence of the defendant motorist whose vehicle crossed the 

center line of the road and the plaintiff motorcyclist’s subsequent 

assured clear distance violation that could or should have 

prevented the injuries the plaintiff motorcyclist suffered when 

he struck the school bus. The plaintiff’s assured clear distance 

violation was negligence per se, but its effect on the liability 

of the other motorist should have been determined on the basis 

of comparative negligence principles, and was not a basis to find 

the motorcyclist’s negligence per se was the sole proximate cause 
22

of the accident. The practical effect of that finding was to hold 

that, as a matter of law, any prior negligent act is too remote 

to be a proximate cause of injuries when any other concurrent 

negligence occurs. That outcome confounds the basic rule that 

concurrent negligences may result in joint liabilities for both 

tortfeasors when each is a proximate cause of injuries. Berdyck 

v. Shinde. Therefore, our holding in Didier will be limited to 

its facts. 

{¶ 55} In the present case, the trial court carefully analyzed 

the facts under the rule of Didier. We cannot fault the court’s 

faithful adherence to our flawed precedent. But, being flawed, 

Didier misled the trial court to grant summary judgment in favor 

of Unlimited Freight, Inc. 

{¶ 56} The trial court correctly found that Plaintiff Crosby’s 

assured clear distance violation was negligence per se. However, 

that finding is not conclusive of the issue of proximate cause. 

Smiddy. As in Fleming, reasonable minds could find that Radenko, 

the driver of the Unlimited Freight, Inc.’s tractor-trailer, would 

anticipate that though a vehicle immediately behind the point where 

he began to reenter the lane of travel would be able to stop to 

avoid a collision, other vehicles in the same line of travel would 

not be able to do so. As in Baum, reasonable minds could conclude 

that the chain of events set in motion by the acts or omissions 
23

of Radenko, the driver of Unlimited Freight’s vehicle, unfolded 

in rapid succession in a continuous and unbroken fashion, with 

a result that the causal connection between that act or omission 

and Crosby’s injuries was not broken by Crosby’s negligence per 

se, and that she and the driver of Unlimited Freight, Inc.’s 

tractor-trailer were concurrent tortfeasors. In that 

circumstance, the effect of their concurrent negligence on the 

liability of Unlimited Freight, Inc. for Crosby’s injuries must 

be resolved by a jury on comparative negligence principles. R.C. 

2315.33; Smiddy v. The Wedding Party, Inc. Therefore, Defendants 

Unlimited Freight, Inc., and Radenko were not entitled to summary 

judgment. 

{¶ 57} The assignment of error is sustained. The judgment of 

the trial court will be reversed and the cause will be remanded 

for further proceedings consistent with our decision. 

FROELICH, J., concurs. 

HALL, J., dissenting: 

{¶ 58} I am of the opinion that granting summary judgment in 

favor of defendant Radenko was correct. I agree with the majority 

(and the trial court) that Plaintiff was negligent per se for her 

inability to stop within the assured clear distance. But I disagree 

with its analysis of the proximate cause of Plaintiff’s collision 
24

with Radenko’s truck. I think that the sole proximate cause of 

the collision was Plaintiff’s own negligence. For this reason, 

I would affirm. 

{¶ 59} The pertinent facts are not in dispute: 

{¶ 60} “There are four vehicles relevant to the instant action, 

which were traveling1

 east in the following progression: Radenko’s 

tractor-trailer (‘Radenko’s truck’), the automobile following 

Radenko’s truck driven by witness June Owens (‘Owens’), a 

semi-truck following June Owens (the Court will occasionally refer 

to said semi-truck as ‘vehicle three’), and the automobile driven 

by Plaintiff-Crosby (‘Plaintiff-Crosby’s car’). Owens, the 

following truck, and Plaintiff-Crosby entered Interstate 70, 

merged with traffic, and proceeded traveling east in the right 

hand lane, each following the other in the aforementioned 

progression. Owens was forced to come to an abrupt stop, because 

Radenko’s truck was stopped in the right lane.2,3 Owens was able 

 1

Radenko’s truck was stopped at a point ahead of the three 

following vehicles on eastbound Interstate 70. 

2

The evidence is unclear as to the exact positioning of 

Radenko’s truck in the right hand lane of Interstate 70. 

However, it is undisputed that Radenko’s truck or a portion 

of his truck was stopped in the traveling lanes of the interstate 

such that June Owens was forced to stop. 

3

The only evidence as to the distance traveled in between 

entering the highway and encountering Radenko’s truck is the 

deposition testimony of Plaintiff-Crosby, who stated the 
25

to stop successfully behind Radenko’s truck without incident. Owens 

stated that she immediately looked into her rearview mirror, 

because she was concerned about the semi-truck behind her. The 

semi-truck following Owens stopped successfully behind her. When 

Owens turned her attention back to Radenko’s truck, it appeared 

that Radenko ‘backed up a tiny bit’ in the time period in which 

Owens was observing the truck behind her. It was at this point 

that Plaintiff-Crosby came up behind vehicle three. 

Plaintiff-Crosby stated in her deposition that when vehicle three 

stopped in front of her, she lost control of the car,4

 she swerved 

to the left, into the left lane, into the gravel and grass of the 

median, then tried to turn right, blacked out, and after regaining 

consciousness realized she had hit Radenko’s truck. 

Plaintiff-Crosby stated that the truck she collided with (Radenko’s 

truck), was not the truck that stopped in front of her (vehicle 

three/semi-truck following June Owens’ car). 

{¶ 61} September 23, 2010 Decision, Order, and Entry, etc., 

p.3-4 (Internal citations omitted.). 

 

distance to be approximately one mile. Plaintiff-Crosby Depo 

at 19:10. 

4

A: I could not maintain my vehicle after I saw the semi 

slam on its brakes. 

Q: [D]id you lost control of your vehicle . . . 
26

{¶ 62} Plaintiff’s failure to stop safely behind vehicle three 

(as vehicle three had done behind vehicle two, and as vehicle two 

had done behind Radenko’s truck) was the result of her own 

negligence. Plaintiff then negligently swerved into the left lane 

and into the median, and then she overcorrected to the right and 

swerved into the right lane, colliding with Radenko’s truck. The 

collision cannot be attributed to anyone else. If Plaintiff had 

not swerved and instead collided with vehicle three, the required 

holding, under this Court’s decision in Didier v. Johns (1996), 

114 Ohio App. 3d 746, and subsequent, identical holding in Daniels 

v. Williamson (July 3, 1997), Montgomery App. No. 96-CA-146, would 

be that Plaintiff’s negligence was the sole proximate cause of 

the collision. The situation here is indistinguishable: the fact 

that both Owens, vehicle two, and vehicle three stopped safely 

behind Radenko’s truck is competent proof that it was not Radenko’s 

negligence that caused Plaintiff to swerve. Owens and vehicle three 

broke the causal chain. 

{¶ 63} Nor were Owens or vehicle three the cause. As Judge Young 

stated in Didier, “Are we to direct all rear-end collisions into 

an endless search of discovery for some tint of negligence down 

the road, no matter how far removed?” Didier, at 754. I would add, 

 

A: Yes. 
27

“Do we extend potential liability to the third or fourth vehicles, 

or maybe the tenth, or perhaps even the twentieth?” In its analysis 

the majority revisits Baum v. Augenstein (1983), 10 Ohio App.3d 

106; Grange Mut. Cas. Co. v. Fleming (1982), 8 Ohio App.3d 164; 

and Shinaver v. Szymanski (1984), 14 Ohio St.3d 51. Each of these 

cases was considered in Didier and either rejected as unsound (Baum

and Fleming) or distinguished factually (Shinaver). The same should 

be done here for the same reasons. 

{¶ 64} The assured clear distance statute is perhaps one of 

the strictest rules of the road, but it needs to be. It may be 

captivating to throw all potentially responsible parties into the 

mix and let a jury sort it out. But, consistent with this Court’s 

precedent, I would hold that once a non-negligent driver breaks 

the causal chain by bringing their vehicle to a lawful stop, and 

that vehicle remains in the line of travel, the failure of a trailing 

vehicle to comply with the assured-clear-distance statute is caused 

solely by the trailing driver’s negligence. 

{¶ 65} But another, perhaps more compelling, reason exists to 

affirm the trial court’s grant of summary judgment. This reason 

makes the intervening/superceding cause analysis unnecessary. As 

the majority, and the trial court, point out, because Plaintiff 

was negligent by failing to stop in the assured clear distance, 

she cannot assert the “sudden emergency” doctrine to justify her 
28

subsequent loss of control. Therefore, the only reason that 

Plaintiff collided with Radenko’s truck was her own 

negligence–first in swerving left to avoid hitting vehicle three, 

then losing control into the median, and then in overcorrecting 

to the right. The situation is no different than if Plaintiff had 

been traveling all along in the left lane, outside the lane of 

travel of the stopping vehicles, when, losing control, she swerved 

left into the median and then overcorrected right into the right 

lane and Radenko’s truck. In that situation, Plaintiff’s own 

negligence undoubtedly would be considered the sole cause of the 

collision. The same is true in this case since Plaintiff cannot 

justify her failure to stop, and her subsequent actions, by claiming 

a sudden emergency. The sole proximate cause of the plaintiff’s 

movement to the right, and into Radenko’s truck, was her negligent 

overcorrecting, precipitated by her negligent driving off the left 

side of the roadway. 

{¶ 66} Accordingly, I would affirm the trial court’s decision 

to grant summary judgment in favor of defendant Radenko. 

 . . . . . . . . . 

Copies mailed to: 

Timothy S. Chappars, Esq. 

Patrick McCaffrey, Esq. 

Audrey E. Varwig, Esq. 

Hon. Dennis J. Langer