[Cite as Hale v. State Farm Mut.l Auto. Ins. Co., 2018-Ohio-3035.]

COURT OF APPEALS 

STARK COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

ALBERT JOHN HALE 

 Plaintiff-Appellant 

-vsSTATE FARM MUTUAL 

AUTOMOBILE INSURANCE 

COMPANY 

 Defendant-Appellee 

JUDGES: 

Hon. W. Scott Gwin, P.J. 

Hon. William B. Hoffman, J. 

Hon. Earle E. Wise, Jr., J. 

Case No. 2017CA00223 

O P I N I O N 

CHARACTER OF PROCEEDING: Appeal from the Stark County Court of 

Common Pleas Court, Case No. 

2017CV00097 

JUDGMENT: Reversed and Remanded 

DATE OF JUDGMENT ENTRY: July 30, 2018 

APPEARANCES: 

For Plaintiff-Appellant For Defendant-Appellee 

JOHN T. SCANLON MATTHEW P. MULLEN 

The Scanlon Group, Co. L.P.A. JOHN P. MAXWELL 

4040 Embassy Parkway Ste 240 ALETHA M. CARVER 

Akron, Ohio 44333 Krugliak, Wilkins, Griffiths & 

 Dougherty Co., L.P.A. 

 158 North Broadway St. 

 New Philadelphia, Ohio 44663 
Stark County, Case No. 2017CA00223 2

Hoffman, J. 

{¶1} Appellant Albert John Hale appeals the summary judgment entered by the 

Stark County Common Pleas Court dismissing his breach of contract action against 

Appellee State Farm Mutual Automobile Insurance Company. 

STATEMENT OF THE FACTS AND CASE 

{¶2} At approximately 8:26 p.m. on April 8, 2016, Appellant was involved in an 

automobile accident on Interstate 77. Five vehicles were travelling southbound in the 

center of three lanes in the following order: a pickup truck, a Honda Pilot (hereinafter 

“Pilot”), a Chevy Traverse (hereinafter “Traverse”), a Mitsubishi Outlander operated by 

Appellant, and a Saturn LS (hereinafter “LS”). It was dark outside, and a rain-snow mix 

was falling. 

{¶3} The pickup truck was carrying a barbeque grill in its bed, which fell off the 

truck into the center lane of travel. The pickup continued on its way, and the driver was 

not identified. The Pilot came to a complete stop in the lane of travel without striking the 

grill. The Traverse swerved to the left upon seeing the Pilot stop, but ultimately hit the 

Pilot. After the Traverse swerved, Appellant struck the Pilot. The LS then struck Appellant 

from behind. 

{¶4} Appellant has uninsured motorist benefits under a policy with Appellee, 

which entitles him to uninsured motorist coverage from the “owner or operator” of: 

 A motor vehicle who remains unidentified but independent 

corroborative evidence exists to prove that bodily injury was proximately 
Stark County, Case No. 2017CA00223 3

caused by the intentional or negligent actions in the operation of a motor 

vehicle by the unidentified operator of the motor vehicle. 

State Farm Policy Form 9835B Uninsured Motor Vehicle Coverage, p. 14. 

{¶5} Appellant filed the instant action against Appellee seeking coverage under 

the uninsured motorist portion of his insurance policy with Appellee.1 Appellee moved for 

summary judgment. Appellee conceded the negligence of the uninsured motorist, but 

argued Appellant was negligent as a matter of law by violating R.C. 4511.21, Ohio’s 

assured clear distance statute, and Appellant’s own negligence was the sole proximate 

cause of his injuries. Appellee also argued the Pilot driver’s ability to stop, coupled with 

Appellant’s negligence, broke the chain of causation from the driver of the pickup. 

{¶6} The trial court granted the motion for summary judgment, finding as follows: 

 Plaintiff has acknowledged seeing the Pilot, the parties do no [sic] 

dispute that the Pilot was continuously traveling in the lane of travel until he 

came to a stop and did not suddenly swerved [sic] into Plaintiff’s lane of 

travel. Plaintiff was required, at all times, to maintain a safe distance from 

the vehicle in front of him. The Court notes that the statute does not state 

a specific distance, as that distance may vary, including on the evening in 

question, when it was dark, rainy, and the roadway was wet. 

 1 Count one of Appellant’s complaint alleged the driver of the Saturn LS was 

negligent in striking him from the rear. This claim was settled and dismissed, and the 

driver of the Saturn is not a party to the instant appeal. 
Stark County, Case No. 2017CA00223 4

 While the barbecue grill was undoubtedly the trigger for the chain 

reaction car accident, had Plaintiff maintained that safe distance as required 

by the statute, he would have been able to avoid striking the Pilot. He failed 

to do so. 

 Therefore, Plaintiff has an uninsured motorist coverage policy that 

will only cover injuries proximately caused by the intentional or negligent 

actions of an unidentified driver. The driver of the pickup truck is 

unidentified, but the facts show that his negligence in failing to properly 

secure his barbeque grill did not cause the injuries to Plaintiff. Instead, 

Plaintiff had a legal obligation to maintain a safe enough distance between 

himself and the car(s) in front of him to avoid hitting said cars. No exception 

to this legal duty exists. 

Judgment entry, October 26, 2017, pp.3-4. 

{¶7} It is from that entry Appellant prosecutes this appeal, assigning as error: 

 “THE TRIAL COURT ERRONEOUSLY GRANTED SUMMARY 

JUDGMENT IN FAVOR OF DEFENDANT-APPELLEE STATE FARM 

MUTUAL AUTOMOBILE INSURANCE COMPANY. REASONABLE 

MINDS COULD COME TO DIFFERENT CONCLUSIONS, AND 

QUESTIONS OF FACT REMAIN WHETHER THE NEGLIGENCE OF THE 

UNIDENTIFIED/UNINSURED MOTORIST WAS A PROXIMATE CAUSE 

OF PLAINTIFF-APPELLANT ALBERT HALE’S INJURIES.” 
Stark County, Case No. 2017CA00223 5

{¶8} 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., 30 Ohio St.3d 35, 36 (1987). As such, we must refer to Civ. R. 

56(C) which provides in pertinent part: 

 Summary Judgment shall be rendered forthwith if the pleadings, 

depositions, answers to interrogatories, written admissions, affidavits, 

transcripts of evidence, and written stipulations of fact, if any, timely filed in 

the action, show that there is no genuine issue as to any material fact and 

that the moving party is entitled to judgment as a matter of law. No evidence 

or stipulation may be considered except as stated in this rule. A summary 

judgment shall not be rendered unless it appears from the evidence or 

stipulation, and only from the evidence or stipulation, that reasonable minds 

can come to but one conclusion and that conclusion is adverse to the party 

against whom the motion for summary judgment is made, that party being 

entitled to have the evidence or stipulation construed most strongly in the 

party’s favor. 

{¶9} Pursuant to the above rule, a trial court may not enter summary judgment if 

it appears a material fact is genuinely disputed. The party moving for summary judgment 

bears the initial burden of informing the trial court of the basis for its motion and identifying 
Stark County, Case No. 2017CA00223 6

those portions of the record that demonstrate the absence of a genuine issue of material 

fact. The moving party may not make a conclusory assertion that the non-moving party 

has no evidence to prove its case. The moving party must specifically point to some 

evidence which demonstrates that the moving party cannot support its claim. If the 

moving party satisfies this requirement, the burden shifts to the non-moving party to set 

forth specific facts demonstrating that there is a genuine issue of material fact for trial. 

Vahila v. Hall, 77 Ohio St.3d 421, 429, 1997-Ohio-259, citing Dresher v. Burt, 75 Ohio 

St.3d 280, 1996-Ohio-107. 

{¶10} Appellant first argues whether he violated R.C. 4511.21 is an issue of 

material fact. R.C. 4511.21(A) states: 

 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. 

{¶11} A violation of said statute depends on whether there is evidence the driver 

collided with an object which (1) was ahead of him in his path of travel, (2) was stationary 

or moving in the same direction as the driver, (3) did not suddenly appear in the driver's 
Stark County, Case No. 2017CA00223 7

path, and (4) was reasonably discernible. See Ziegler v. Wendel Poultry, Inc., 67 Ohio 

St.3d 10, 12, 615 N.E.2d 1022 (1993); Junge v. Brothers, 16 Ohio St.3d 1, 3, 475 N.E.2d 

477 (1985); Blair v. Goff-Kirby Co., 49 Ohio St.2d 5, 7, 358 N.E.2d 634 (1976). Violation 

of the assured clear distance statute constitutes negligence per se. Cox v. Polster, 174 

Ohio St. 224, 226, 188 N.E.2d 421, 423 (1963). 

{¶12} Where conflicting evidence is presented as to any of the elements 

necessary to establish a violation of R.C. 4511.21(A), a jury question is created. Ziegler, 

supra, at 12. “Especially in cases involving the assured-clear-distance statute, which, by 

definition, require evaluation of the conduct of the driver in light of the facts surrounding 

the collision, the judgment of a jury is more likely to achieve a fair result than is a judgemade rule of law.” Blair, supra, at 9. 

{¶13} Appellant argues reasonable minds could reach differing conclusions in the 

instant case as to whether the Pilot was reasonably discernable. 

{¶14} Whether an object is discernable is not the same as whether it is visible: 

 The word “discernible” ordinarily implies something more than 

“visible.” “Visible” means perceivable by the eye whereas “discernible” 

means mentally perceptible or distinguishable,—capable of being 

“discerned” by the understanding and not merely by the senses.’” 

(Emphasis sic.) McFadden v. Elmer C. Breuer Transp. Co., 156 Ohio St. 

430, 441–442, 103 N.E.2d 385 (1952), quoting Colonial Trust Co., Admr. v. 

Elmer C. Breuer, Inc., 363 Pa. 101, 69 A.2d 126 (1949). Accordingly, “ 

‘[d]iscernible’ means cognitive awareness while ‘visible’ means merely 
Stark County, Case No. 2017CA00223 8

capable of being seen.” Tritt v. Judd's Moving & Storage, Inc., 62 Ohio 

App.3d 206, 217, 574 N.E.2d 1178 (10th Dist.1990). 

Cleveland Elec. Illum. Co. v. Major Waste Disposal, 11th Dist. Lake No. 2015-L104, 2016-Ohio-7442, 74 N.E.3d 689, ¶ 25. 

{¶15} In cases in which a collision occurred at night or during extraordinary 

weather conditions that reduced visibility, the Ohio Supreme Court has held a jury 

question existed as to whether the object that the driver hit was reasonably discernible. 

Blair, supra (dark, misty, rainy night); Sabo v. Helsel, 4 Ohio St. 3d 70, 446 N.E.2d 457 

(1983) (dense fog); Tomlinson v. Cincinnati, 4 Ohio St .3d 66, 446 N.E.2d 454 919 (1983) 

(darkness); Junge, supra (darkness, highway unlighted); Sharp v. Norfolk & W. Ry. Co., 

36 Ohio St.3d 172, 522 N.E.2d 528(1988) (darkness); Ziegler, supra (fog). 

{¶16} The Ohio Supreme Court noted in Blair the issue of discernability is often a 

jury question: 

 Furthermore, as the policy reasons behind holding drivers negligent 

per se for collisions have become less compelling over the years, virtually 

all other states, whether their assured-clear-distance rules are statutory or 

judge made, have held discernibility to be a jury question.

 For the foregoing reasons, we hold that whether an object is 

discernible under a given set of circumstances is a question of fact, and, 

when reasonable minds could reach different conclusions from the 
Stark County, Case No. 2017CA00223 9

evidence presented upon the question, a motion for a directed verdict upon 

that basis should be overruled. 

Blair, supra, at 9-10. 

{¶17} It is undisputed the accident in the instant case occurred after dark, with a 

rain-snow mixture falling from the sky. Appellant testified in his deposition he was 

following the Traverse approximately four car lengths behind, at a speed of 55 miles per 

hour. He testified as follows regarding the accident: 

 A. I remember the car in front of me making a bizarre left twist off to 

the left side of the road, distracted me, and I looked up at the vehicle that 

was sitting on the expressway. 

 ***** 

 Q. And as soon as that happened, after that car cleared off to the 

left, you were able to see a car in front of it? 

 A. Yes. 

 Q. Okay. What was that car doing? 

 A. Nothing. 

 Q. It was not moving? 

 A. No. 

 Q. Were the brake lights on? 

 A. No. 
Stark County, Case No. 2017CA00223 10

 Q. Were there – were there taillights on it? 

 A. Taillights. 

 Q. So the car – the lights were on? 

 A. Yes. 

 Q. But you couldn’t see that any brake lights were on? 

 A. No brake lights. 

 Q. All right. And you specifically recall that there were no brake 

lights? 

 A. I know there was [sic] no brake lights. 

 Q. Okay. What kind of car was that, if you recall? 

 A. It was a Honda Pilot. 

 Q. Okay. So when the car that you were following moves over to 

the left, you now see the Honda Pilot sitting in the roadway not moving; is 

that correct? 

 A. Yes. When I looked back, I noticed all of this, distracted me, 

startled me, and I looked back and that car was sitting there. 

 Q. Okay. And were you able to perceive that it was not moving even 

though it didn’t have any brake lights on? 

 A. Yes. 

 Q. You could tell it was stopped? 

 A. When I got – I was getting closer to it, yes. 

 Q. How far away was that Pilot when you first saw it? 

 A. I couldn’t tell you. 
Stark County, Case No. 2017CA00223 11

 Q. Was it – was it more than four car lengths? 

 A. No. 

 Q. So it was actually closer at this point than what you had been 

following the other car? 

 A. Yes. 

 *** 

 Q. Did you have time to use your brakes? 

 A. I don’t recall. 

 *** 

A. When the car in front of me went left, it exposed me to the danger. 

 Q. Okay. 

 A. I had no time. 

 Hale Deposition, pp. 30-34, 68. 

{¶18} In support of the trial court’s decision, Appellee first cites Cox v. Polsten, 

174 Ohio St. 224, 226, 188 N.E.2d 421,423 (1963), in which the Ohio Supreme Court 

held: 

 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 out of its lane of traffic does not create a 

sudden emergency as to the third car so as to relieve the driver thereof of 
Stark County, Case No. 2017CA00223 12

from [sic] compliance with the assured-clear-distance statute in relation to 

the stopped first car. 

{¶19} However, the instant case does not involve a defense of sudden 

emergency. In Cox, the plaintiff was in the first car which stopped, the second car 

swerved, and the third car, driven by the defendant, was unable to stop, striking the 

plaintiff’s car. In the instant case, Appellant was the plaintiff, and was in the position of 

the defendant in Cox. As the plaintiff in this case, the defense of sudden emergency was 

not pertinent to Appellant’s case, and we thus find Cox inapplicable. In Cox, the court did 

not discuss whether the first car was discernable, but only whether the trial court erred in 

instructing the jury on the defense of sudden emergency caused by the second car 

swerving out of the way of the plaintiff. 

{¶20} Appellee argues because Hale observed the Pilot was stopped and was 

able to determine the car had on taillights but no brake lights, he has admitted 

discernability. Appellee cites several cases in support of its claim summary judgment 

was appropriate under this set of facts. However, the cases cited by appellee involve 

distinct facts from those at issue in the case sub judice. Treece v. Mullet, 5th Dist. Holmes 

No. CA-406, 1990 WL 120758 (August 6, 1990) (driver rounded a bend and observed 

stationary vehicle but was unable to stop); Mitchell v. Kuchar, 8th Dist. Cuyahoga No. 

85363, 2005-Ohio-3717 (car was directly ahead of plaintiff and he followed it for a minute 

before the accident); Ciesielczyk v. Ogg, 5th Dist. Stark No. 2000CA00359, 2001 WL 

967896 (August 20, 2001) (plaintiff drove behind defendant for half a mile before 

accident). 
Stark County, Case No. 2017CA00223 13

{¶21} We find reasonable minds could reach different conclusions as to whether 

the stopped Pilot was reasonably discernable to Appellant. A mixture of rain and snow 

was falling, and it was dark outside. The vehicle in front of Hale suddenly swerved left, 

creating a distraction. Prior to the Traverse moving out of the way, Appellant could not 

see the Pilot. When he was able to see the Pilot, its taillights were visible but it did not 

have brake lights on. At some point, Hale testified he was able to determine the Pilot was 

stopped, but it is not clear from his testimony at what point he was able to discern the 

Pilot was not moving. He testified he had no time. When considered in the light most 

favorable to Appellant as is required by Civ. R. 56, from all the circumstances surrounding 

the accident, we find reasonable minds could differ as to whether the Pilot was 

discernable. Therefore, we find the court erred in finding Appellant was negligent per se 

for violating the assured clear distance statute. 

{¶22} Appellant next argues the court erred in granting summary judgment 

because even if he was negligent, an issue of comparative negligence was created which 

must be determined by a jury. Appellee argues in response Appellant’s own negligence 

was the sole proximate cause of his injuries. Appellee argues the Pilot’s ability to come 

to a complete stop, followed by Appellant’s negligence in striking the Pilot, constituted an 

intervening cause which relieved the driver of the pickup from liability for his negligence. 

{¶23} A defendant may be relieved of liability for his negligent conduct if an 

intervening act breaks the causal connection between the defendant's negligence and 

the injury. Berdyck v. Shinde, 66 Ohio St.3d 573, 613 N.E.2d 1014 (1993), paragraph six 

of the syllabus. A break will occur when another conscious and responsible agency, which 

could or should have eliminated the hazard, intervenes between an agency creating a 
Stark County, Case No. 2017CA00223 14

hazard and an injury resulting therefrom. Hurt v. Charles J. Rogers Transp. Co., 164 Ohio 

St. 323, 130 N.E.2d 824 (1955), paragraph one of the syllabus. 

{¶24} The test for such a break in causation is “whether the original and 

successive acts may be joined together as a whole, linking each of the actors as to the 

liability, or whether there is a new and independent act or cause which intervenes and 

thereby absolves the original negligent actor.” Cascone v. Herb Kay Co., 6 Ohio St.3d 

155, 160, 451 N.E.2d 815 (1983). An intervening act is “new” if it came into operation 

after the original negligence and could not reasonably have been foreseen. Reed v. 

Weber, 83 Ohio App.3d 437, 441, 615 N.E.2d 253 (1992). An intervening act constitutes 

an “independent” cause if the intervening act was capable of producing the injury 

irrespective of the original negligence, was not set in motion by the original negligence, 

and was not simply a condition on or through which the original negligence operated to 

produce the injurious result. See Mudrich v. Standard Oil Co., 153 Ohio St. 31, 38, 90 

N.E.2d 859 (1950), citing Mouse v. Cent. Savings & Trust Co., 120 Ohio St. 599, 605-

606, 167 N.E. 868 (1929). 

{¶25} Appellee cites to several cases in support of its argument summary 

judgment was appropriate on the issue of proximate cause because the ability of the Pilot 

to stop, coupled with Appellant’s own negligence, constituted an intervening cause 

relieving the pickup driver of liabiliity. In Mitchell v. Kuchar, supra, Kuchar, who was 

intoxicated, fell asleep at the wheel, resulting in his car hitting a concrete barrier, traveling 

across the lanes of traffic, and coming to rest in the grass on the side of the road. Rizzo 

slowed down to avoid Kuchar’s vehicle, and was rear-ended by Mitchell. The Court of 

Appeals for the Eighth District held Mitchell’s failure to maintain an assured clear distance 
Stark County, Case No. 2017CA00223 15

broke the chain of causation related to Kuchar’s negligent driving, constituting an 

independent, intervening act which absolved Kuchar of liability for the collision between 

Mitchell and Rizzo. 2005-Ohio-3717, ¶11. The court noted by maintaining an assured 

clear distance, Rizzo was able to stop and avoid impact with Kuchar’s vehicle, and 

therefore as a matter of law, Kuchar was not proximately liable for Mitchell’s injuries. Id. 

at ¶13. 

{¶26} The Ninth District addressed a similar proximate causation issue in 

Sabbaghzadeh v. Shelvey, 9th Dist. Lorain No. 98CA007244, 2000 WL 673322 (June 14, 

2000). In that case, a wooden display case fell from the back of a truck driven by Shelvey. 

The accident occurred at night. Cioffee was driving a dairy delivery truck behind Shelvey, 

and stopped to avoid hitting debris in his lane. After Cioffee had been stopped at least 

four to five minutes, he was struck from behind by a vehicle driven by Mofakhami, who 

died at the scene. The court found as a matter of law Mofakhami’s failure to maintain 

assured clear distance was a new and independent cause of his injury, which was not set 

in motion by Shelvey’s misconduct. Id. at *6. He arrived on the scene at least four to five 

minutes after the display case fell from Shelvey’s truck, and other traffic had either slowed 

or was passing around the debris without incident. Id. Although it may have been 

foreseeable Shelvey’s negligence would bring traffic to a halt, it was not reasonably 

foreseeable a motorist would proceed more than 2500 feet without making any effort to 

avoid a large delivery truck in its path. Id. 

{¶27} Appellee cites extensively in its brief to Didier v. Johns, 114 Ohio App. 3d 

746, 684 N.E.2d 337 (2nd Dist. Montgomery 1996). In that case, Didier was operating a 

motorcycle, following a bus. Johns was operating a vehicle in the opposite direction, and 
Stark County, Case No. 2017CA00223 16

fell asleep at the wheel, crossing the center line. The bus was required to stop quickly, 

and Didier hit the bus from behind. The court found comparative negligence did not apply, 

as the action of the bus driver in bringing his vehicle to a stop was not negligent, and this 

non-negligent act broke the chain of causation between John’s negligence and Didier’s 

negligence. Id. at 753, 684 N.E.2d at 341. 

{¶28} However, the Court of Appeals for the Second District subsequently held its 

decision in Didier was incorrect: 

 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, 613 N.E.2d 1014. 

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 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, 684 

N.E.2d 337. 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 
Stark County, Case No. 2017CA00223 17

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.

 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, 460 N.E.2d 701. 

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 it 

wrote: 

 “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.) 
Stark County, Case No. 2017CA00223 18

 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 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. 

Crosby v. Radenko, 2nd Dist. Montgomery No. 24343, 2011-Ohio-4662, ¶¶ 51-54. 

{¶29} In Crosby, a tractor-trailer driven by Radenko pulled to a stop in the berm 

due to mechanical trouble. He subsequently attempted to reenter the same lane of travel, 

when a passenger vehicle came to a stop behind him, followed by a second tractor-trailer 

coming to a stop behind the passenger vehicle. Unable to stop, Crosby first veered into 

the left lane, lost control of her vehicle, veered back into the right lane, and collided with 
Stark County, Case No. 2017CA00223 19

Radenko. The Court of Appeals held reasonable minds could conclude the chain of 

events set in motion by Radenko unfolded in rapid succession in a continuous and 

unbroken fashion, with a result the causal connection between Radenko’s negligence and 

Crosby’s negligence was not broken, and the effect of their concurrent negligence must 

be resolved by the jury on comparative negligence principles. Id. at ¶56. 

{¶30} In support of finding its prior decision in Didier to be incorrect, the Crosby 

court cited to two similar cases from the Tenth Appellate District. In Baum v. Augenstein, 

10 Ohio App. 3d 106, 460 N.E.2d 701 (10th Dist. Franklin 1983), a pickup truck dropped 

a cattle feeder on to the roadway. While Baum was able to stop her vehicle, she was 

almost immediately struck from behind by Augenstein. The Court of Appeals found 

reasonable minds could conclude the negligence of the pickup truck driver and 

Augenstein combined to proximately cause Baum’s injuries. Id. at 107, 460 N.E.2d at 

703. Reasonable minds could conclude the chain of events set in motion by the pickup 

truck driver’s negligence in failing to secure the feeder unfolded in rapid succession in a 

continuous and unbroken fashion, with a result the causal connection was not broken. Id. 

{¶31} Similarly, in Grange v. Mut. Cas. Co. v. Fleming, 8 Ohio App. 3d 164, 456 

N.E.2d 816 (10th Dist. Franklin 1982), the lead driver stopped suddenly, the middle car 

was able to stop, but the third car in the line of vehicles was unable to stop, crashing into 

the middle car and pushing it into the lead vehicle. The court held reasonable minds 

could find the first driver by stopping his vehicle in a continuous lane of traffic would 

anticipate that, although the vehicle immediately behind him would be able to stop, a third 

vehicle may not be able to stop. Id. at 167, 456 N..E.2d at 819. The court held reasonable 

minds could therefore conclude the third driver’s negligence was set in motion by the first 
Stark County, Case No. 2017CA00223 20

driver’s negligence in suddenly stopping in the roadway, and the causal connection was 

not broken. Id. 

{¶32} Applying the reasoning of Crosby, Baum, and Grange to the instant case, 

we find reasonable minds could differ as to whether the ability of the Pilot to stop, followed 

by any potential finding of negligence on the part of Appellant in violating the assured 

clear distance statute, broke the chain of causation of the pickup driver’s negligence in 

failing to secure the grill. As in the cases cited immediately above, and distinguishable 

from Sabbaghzadeh, supra, the chain of events set in motion by the pickup driver’s failure 

to secure his load unfolded in rapid succession in a continuous and unbroken fashion. 

Reasonable minds could conclude the driver of the pickup would anticipate that, although 

a vehicle directly behind him would be able to stop if the grill fell out of the truck, other 

vehicles following behind might not be able to see the hazard and stop, particularly as the 

accident occurred on an interstate highway with three lanes proceeding in his direction, 

after dark, with a rain-snow mixture falling. Reasonable minds could differ as to whether 

Appellant’s failure to stop was a new or independent act or cause of his collision with the 

Pilot, irrespective of the pickup truck’s negligence in failing to secure the grill. Reasonable 

minds could find this rapid succession accident was set in motion by the negligence of 

the pickup truck driver resulting in a continuous, unbroken chain of reaction. We therefore 

find the court erred in concluding as a matter of law the causal connection was broken by 

Appellant’s negligence, and if the jury finds Appellant negligent per se for violating the 

assured clear distance statute, the effect of the concurrent negligence of Appellant and 

the unidentified driver of the pickup truck must be resolved by the jury on comparative 

negligence principles. 
Stark County, Case No. 2017CA00223 21

{¶33} The assignment of error is sustained. The summary judgment of the Stark 

County Common Pleas Court is reversed, and this case is remanded to that court for 

further proceedings according to law and this Opinion. 

By: Hoffman, J. 

Gwin, P.J. and 

Wise, Earle, J. concur