[Cite as Penrod v. Mineral Trucking, 2015-Ohio-3493.]

COURT OF APPEALS 

TUSCARAWAS COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

SHANNON PENROD 

 Plaintiff-Appellant 

-vsMINERAL TRUCKING, ET AL. 

 Defendants-Appellees 

JUDGES: 

Hon. William B. Hoffman, P.J. 

Hon. Sheila G. Farmer, J. 

Hon. John W. Wise, J. 

Case No. 2014 AP 10 0044 

O P I N I O N 

CHARACTER OF PROCEEDING: Appeal from the Tuscarawas County Court 

of Common Pleas, Case No. 2013 CT 12 

0898 

JUDGMENT: Affirmed 

DATE OF JUDGMENT ENTRY: August 25, 2015 

APPEARANCES: 

For Defendants-Appellees For Plaintiff-Appellant 

MARK F. FISCHER STEVEN J. BRIAN 

JAMES A. DESMITH ABIGAIL I. MARCHISIO 

Fischer, Evans & Robbins, Ltd. 81 Maplecrest Street SW 

3521 Whipple Avenue NW North Canton, Ohio 44720 

Canton, Ohio 44718 
Tuscarawas County, Case No. 2014 AP 10 0044 2

Hoffman, P.J. 

{¶1} Plaintiff-appellant Shannon Penrod appeals the September 23, 2014 

Judgment Entry entered by the Tuscarawas County Court of Common Pleas granting 

summary judgment in favor of Defendants-appellees Mineral Trucking, Inc. and Steven 

S. Ramsier. 

STATEMENT OF THE FACTS AND THE CASE 

{¶2} On February 10, 2010, Appellant Shannon Penrod was operating her 

vehicle on County Highway 21, in York Township, Tuscarawas County, Ohio. County 

Highway 21 is a two-lane roadway with one lane northbound and one lane southbound. 

At the time of the incident, a snow storm caused the road conditions to be icy. The wind 

was blowing and it was snowing. 

{¶3} Appellant alleges a deer ran into the roadway hitting her car, causing a flat 

tire. Appellant then pulled her car to the side of the road. The incident occurred at 

approximately 6:30 a.m., and was dark outside. 

{¶4} Appellant recalls exiting her vehicle upon seeing headlights from an 

oncoming vehicle. According to Appellant, she was holding her cell phone and waiving 

her arms for the oncoming vehicle to stop and help her. Appellant avers she remained 

near her car on the side of the road. Appellant recalls nothing further about the 

accident, other than waking up in the hospital three days later. 

{¶5} On the date of the accident, Appellee Steven Ramsier was hauling a full 

load of coal on County Road 21. Ramsier was traveling between 30 and 35 miles per 

hour. The speed limit on the roadway was 55 miles per hour. Ramsier crested a hill 

and noticed headlights facing him on the opposite side of the road. Ramsier testified he 
Tuscarawas County, Case No. 2014 AP 10 0044 3

then noticed Appellant in the middle of the roadway, coming towards his truck. Ramsier 

did not see Appellant until she appeared from a grove of trees waiving her arms about 

ten to fifteen yards in front of his truck. 

{¶6} Ramsier applied his brakes and noticed the trailer began to swing around 

the cab due to the slippery conditions. In order to straighten the trailer, Ramsier let off 

the brakes. Ramsier avers Appellant did not move from the middle of the road and she 

was too close for him to stop, so he tried to pass around her. Ramsier observed in his 

side mirror the trailer pass Appellant at which time Appellant spun around and fell to the 

ground. 

{¶7} On December 16, 2013, Appellant filed a complaint for personal injuries 

against Appellees.1 Appellees filed an answer to the complaint. On January 15, 2014, 

State Farm Mutual Automobile Insurance Company filed a Motion to Intervene. The trial 

court granted the motion. With leave of Court, State Farm filed an Intervening 

Complaint against Appellees alleging an interest in the action as the Insurrer of 

Appellant. Appellant alleges she was struck and injured as a direct and proximate result 

of Ramsier's negligence in that he was traveling at an unsafe speed for the conditions, 

failed to keep a proper lookout, failed to maintain an assured clear distance, and failed 

to yield the right of way to a pedestrian. Appellant further claims Ramsier was operating 

within the course and scope of his employment for Appellee Mineral Trucking, Inc. 

{¶8} On August 20, 2014, Appellees Mineral Trucking, Inc. and Steven S. 

Ramsier filed a motion for summary judgment. 

 

1

 Appellant voluntarily dismissed a previously filed complaint on December 20, 2012. 

State Farm Automobile Insurance Company voluntarily dismissed a previously filed 

complaint on December 19, 2012. The trial court entered a Judgment Entry confirming 

the dismissal without prejudice of all claims on December 26, 2012. 
Tuscarawas County, Case No. 2014 AP 10 0044 4

{¶9} On September 5, 2014, Appellant filed a memorandum in opposition to the 

motion for summary judgment. On September 10, 2014, State Farm filed a brief in 

opposition to the motion for summary judgment. 

{¶10} On September 17, 2014, Appellees filed a reply brief in support of their 

motion for summary judgment. 

{¶11} Via Judgment Entry of September 23, 2014, the trial court granted 

summary judgment in favor of Appellees Steven Ramsier and Mineral Trucking, Inc. and 

dismissed the complaints filed by Appellant and State Farm. 

{¶12} Appellant Shannon Penrod appeals, assigning as error: 

{¶13} "I. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT 

IN FAVOR OF APPELLEE. (JUDGMENT ENTRY ATTACHED HERETO AS EXHIBIT 

A, PURSUANT TO LOCAL RULE 9(A)(1)(A)). SUMMARY JUDGMENT IS 

APPROPRIATE ONLY WHERE NO GENUINE ISSUES OF MATERIAL FACT EXIST 

SUCH THAT REASONABLE MINDS COULD COME TO BUT ONE CONCLUSION. IN 

THE INSTANT ACTION, GENUINE ISSUES OF MATERIAL FACT EXIST THAT 

WARRANT TRIAL BY JURY AS REASONABLE MINDS MAY REACH ALTERNATE 

CONCLUSIONS." 

{¶14} Summary judgment proceedings present the appellate court with the 

unique opportunity of reviewing the evidence in the same manner as the trial court. 

Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St.3d 35, 36, 506 N.E.2d 212. As 

such, this Court reviews an award of summary judgment de novo. Grafton v. Ohio 

Edison Co. (1996), 77 Ohio St.3d 102, 105, 671 N.E.2d 241. 
Tuscarawas County, Case No. 2014 AP 10 0044 5

{¶15} Civ.R. 56 provides summary judgment may be granted only after the trial 

court determines: 1) no genuine issues as to any material fact remain to be litigated; 2) 

the moving party is entitled to judgment as a matter of law; and 3) it appears from the 

evidence that reasonable minds can come to but one conclusion and viewing such 

evidence most strongly in favor of the party against whom the motion for summary 

judgment is made, that conclusion is adverse to that party. Temple v. Wean United, Inc.

(1977), 50 Ohio St.2d 317, 364 N.E.2d 267. 

{¶16} It is well established the party seeking summary judgment bears the 

burden of demonstrating that no issues of material fact exist for trial. Celotex Corp. v. 

Catrett (1986), 477 U.S. 317, 330, 106 S.Ct. 2548, 91 L.Ed.2d 265. The standard for 

granting summary judgment is delineated in Dresher v. Burt (1996), 75 Ohio St.3d 280 

at 293, 662 N.E.2d 264: “ * * * a party seeking summary judgment, on the ground that 

the nonmoving party cannot prove its case, bears the initial burden of informing the trial 

court of the basis for the motion, and identifying those portions of the record that 

demonstrate the absence of a genuine issue of material fact on the essential element(s) 

of the nonmoving party's claims. The moving party cannot discharge its initial burden 

under Civ.R. 56 simply by making a conclusory assertion the nonmoving party has no 

evidence to prove its case. Rather, the moving party must be able to specifically point to 

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

nonmoving party has no evidence to support the nonmoving party's claims. If the 

moving party fails to satisfy its initial burden, the motion for summary judgment must be 

denied. However, if the moving party has satisfied its initial burden, the nonmoving party 

then has a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing 
Tuscarawas County, Case No. 2014 AP 10 0044 6

there is a genuine issue for trial and, if the nonmovant does not so respond, summary 

judgment, if appropriate, shall be entered against the nonmoving party.” The record on 

summary judgment must be viewed in the light most favorable to the opposing party. 

Williams v. First United Church of Christ (1974), 37 Ohio St.2d 150, 309 N.E.2d 924. 

{¶17} Appellant maintains there remains a genuine issue of material fact as to 

whether a perilous situation existed, which would necessitate Appellee to exercise a 

heightened standard of care. 

{¶18} Appellant cites as support Williams v. Putnam Transfer & Storage, Eighth 

Dist. No. 64659, 1994WL30425, in which the Eighth District held, 

 In addition, case law imposes a higher standard of care on 

operators of motor vehicles when (1) a child pedestrian is involved; (2) 

children may reasonably be expected to be in the vicinity; or (3) the driver 

becomes aware of a perilous situation. See Sargent v. United 

Transportation Co. (1978), 56 Ohio App.2d 159; James v. Franks (1968), 

15 Ohio App.2d 215; Falck v. Proos (1982), 8 Ohio App.3d 22; Bell, supra; 

Hubner, supra.

{¶19} It is undisputed Appellant was thirty-seven years old at the time of the 

accident; thus, not of tender years. Further, it is uncontroverted Appellant did not have 

her flashers or emergency lights on at the time of the incident. There were no conditions 

present, prior to Ramsier seeing Appellant on the roadway to put Ramsier on notice of 

Appellant's presence. Why the weather and road conditions may have presented a 

perilous situation, for the reasons discussed infra, we find Appellant has not 

demonstrated Ramsier violated even a heightened duty of care. 
Tuscarawas County, Case No. 2014 AP 10 0044 7

{¶20} Appellant further maintains the totality of the circumstances creates a 

genuine issue of material fact as to whether Appellee Ramsier was negligent. 

{¶21} The undisputed evidence demonstrates Appellant exited her car and 

attempted to wave down Appellee Ramsier. Ramsier did not have an obligation to look 

for pedestrians in his path. Deming v. Osinki 24 Ohio St2d. 179, 265 N.E.2d 554 

(1970). We find Appellant's assertion there is a genuine issue of fact as to where she 

was at the time of the alleged contact with Ramsier's truck is belied by the evidence. 

Appellant's assertion she was beside her car is unreasonable because her car was off 

the opposite side of the roadway. There is no evidence Ramsier ever left his side of 

the roadway, let alone crossed over and left the opposite side of the roadway where 

Appellant asserts she was standing near her car. Pursuant to R.C. 4511.50, Appellant 

had a duty to walk on the shoulder of the highway and stay as near to the outer edge as 

possible, and to yield the right of way to all other vehicles. There is no evidence 

Ramsier violated any traffic regulations, or failed to yield the right of way to Appellant. 

The evidence supports the conclusion that Appellant had improperly entered upon the 

highway. 

{¶22} Viewing the evidence in a light most favorable to Appellant, we find there 

are no genuine issues of material fact, and reasonable minds could come to but one 

conclusion in favor of Appellees. Accordingly, we do not find the trial court erred in 

granting summary judgment in favor of Appellees Ramsier and Mineral Trucking, Inc. 
Tuscarawas County, Case No. 2014 AP 10 0044 8

{¶23} The September 23, 2014 Judgment Entry entered by the Tuscarawas 

County Court of Common Pleas is affirmed. 

By: Hoffman, P.J. 

Farmer, J. and 

Wise, J. concur