[Cite as Muccio v. Barry, 2012-Ohio-6327.]

Court of Claims of Ohio

The Ohio Judicial Center 

65 South Front Street, Third Floor 

Columbus, OH 43215 

614.387.9800 or 1.800.824.8263 

www.cco.state.oh.us 

PATRICK MUCCIO 

 Plaintiff 

 v. 

SEAN C. BARRY 

 Defendant/Third-Party Plaintiff 

 v. 

MIAMI UNIVERSITY 

 Third-Party Defendant 

Case No. 2011-03251-PR 

Judge Clark B. Weaver Sr. 

DECISION

{¶ 1} On June 22, 2012, plaintiff, with leave of court, filed a motion for partial 

summary judgment. On July 30, 2012, defendant/third-party plaintiff, Sean C. Barry 

(Barry), filed a memorandum in opposition. 

{¶ 2} Civ.R. 56(C) states, in part, as follows: 

{¶ 3} “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 
Case No. 2011-03251-PR - 2 - JUDGMENT ENTRY

 

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.” See also 

Gilbert v. Summit County, 104 Ohio St.3d 660, 2004-Ohio-7108, citing Temple v. Wean 

United, Inc., 50 Ohio St.2d 317 (1977). 

{¶ 4} Both plaintiff and Barry were members of the Miami University Glee Club, a 

volunteer student organization for which the participants received school credit. In 

2009, the Glee Club embarked on a winter tour which consisted of performances in 

several cities. On January 6, 2009, the Glee Club performed at a church in Cleveland, 

Ohio. Following the performance, the club members were shuttled to a nearby “host 

home” by a chartered bus and several passenger vans. The Glee Club members spent 

the night at the host home and then departed for the next concert venue in Buffalo, New 

York. 

{¶ 5} In his answer, Barry admitted the following allegations of the complaint: 

{¶ 6} “13. After an initial performance by the Glee Club in Cleveland the 

previous evening, on January 6, 2009 at approximately 9:00 a.m. the caravan of 

student/members left Cleveland for Buffalo, New York. 

{¶ 7} “14. Defendant Barry was the driver of one (1) of the five (5) vans to be 

driven from Cleveland to Buffalo. Plaintiff Patrick Muccio was amongst eight (8) 

passengers in that van. 

{¶ 8} “15. Approximately, one-and-a-half (1 1/2) hours into the drive, 

defendant Sean C. Barry fell asleep at the wheel and caused the van to drift toward the 

median. 

{¶ 9} “16. Upon drifting into the median, * * * the van * * * rolled * * * until it 

came to rest onto its roof.” (Plaintiff’s complaint.) 

{¶ 10} In his deposition, Barry testified as follows: 

{¶ 11} “Q. And tell us what happened during that accident. 

{¶ 12} “A. I fell asleep behind the wheel and we were the only vehicle 

involved. 
Case No. 2011-03251-PR - 2 - JUDGMENT ENTRY

 

{¶ 13} “Q. Okay. At any point did you wake up during the crash? 

{¶ 14} “A. Yes. 

{¶ 15} “Q. Okay. Why don’t you tell us in detail what happened. 

{¶ 16} “A. I woke up and the van was in the center median driving on grass, 

and I corrected the vehicle to drive back up on the road, drove across however many 

lanes there were to the other side of the road, and as I corrected again back to the left, 

the van flipped. 

{¶ 17} “Q. Okay. So if I understand it correctly, you woke up to find yourself 

in the left median; is that correct? 

{¶ 18} “A. Yes. 

{¶ 19} “Q. And then you had corrected it and the van went over the lanes of 

traffic? 

{¶ 20} “A. Yes. 

{¶ 21} “Q. Okay. And then you tried to correct again, and then you ended up 

on the other side of the interstate? 

{¶ 22} “A. I don’t know where we ended up.” (Deposition Transcript, Page 30, 

Line 10 - Page 31, Line 11.) 

{¶ 23} “* * * 

{¶ 24} “Q. Do you take full responsibility for the accident? 

{¶ 25} “A. Yes. 

{¶ 26} “Q. Would you say that there’s anyone else to blame student-wise with 

regards to this accident? 

{¶ 27} “A. No. 

{¶ 28} “Q. Do you feel as if Miami University should have provided you with 

some form of training prior to operation of this van? 

{¶ 29} “A. I don’t know. I’m not sure.” (Deposition Transcript, Page 36, Line 

21 - Page 37, Line 6.) 
Case No. 2011-03251-PR - 2 - JUDGMENT ENTRY

 

{¶ 30} Barry was subsequently convicted of careless driving under Pennsylvania 

law. There are no exculpating facts which would excuse such conduct or otherwise 

relieve Barry from liability to plaintiff.1 In spite of Barry’s protestations to the contrary, 

the only reasonable inference to draw from Barry’s answer and from his deposition 

testimony is that Barry was negligent and that such negligence was the proximate 

cause of plaintiff’s harm. Indeed, plaintiff maintains that Barry’s violation of 

Pennsylvania traffic law requires a finding of negligence per se. However, having 

determined that the only reasonable conclusion to reach upon the evidence is that Barry 

was negligent, it matters not whether such negligence arises out of statutory or common 

law. 

{¶ 31} For similar reasons, Barry’s insistence that his deposition testimony is not 

to be interpreted as an admission of legal liability is also of no consequence. As stated 

above, the only permissible inference to be drawn from the evidence is that Barry was 

negligent and that his negligence was the proximate cause of plaintiff’s harm. Barry’s 

own opinion as to his legal culpability does not change the undisputed facts. 

{¶ 32} Barry argues, in the alternative, that the court cannot grant plaintiff’s 

motion for summary judgment where there are factual issues regarding negligent 

training. Barry contends that the trier of fact could find that the negligence of third-party 

defendant, Miami University (Miami), was an intervening and superseding cause of 

plaintiff’s harm. The court disagrees. 

 1

Under Pennsylvania law, “[f]or a driver to sleep at the wheel of a moving automobile makes him 

prima facie guilty of negligence. If there are any facts which under the circumstances tend to exculpate 

him from the charge of negligence, the burden of producing them is upon him.” Bernosky v. Greff, 350 

Pa. 59, 61 (1944). “It is impossible to fathom how one who falls asleep while operating an automobile, 

thus blindly propelling thousands of pounds of steel and glass at tens of miles per hour, cannot be guilty 

of a degree of negligence beyond mere ‘absence of ordinary care.’” Commonwealth v. Cathey, 435 Pa. 

Super. 162 (1994) (applying 75 Pa.Consolidated Stat. 3714). 

 Under Ohio law, “[t]he authorities are quite uniform upon the proposition that the fact that a driver 

went to sleep while driving an automobile creates an inference of negligence sufficient to make out a 

prima facie case, and sufficient for a recovery of damages by one injured as a result thereof, if no 

circumstances tending to excuse or justify his conduct are proven.” Collins v. McClure, 143 Ohio St. 569 
Case No. 2011-03251-PR - 2 - JUDGMENT ENTRY

 

{¶ 33} In Berdyck v. Shinde, 66 Ohio St.3d 573 (1993), the Ohio Supreme Court 

discussed the law on the subject as follows: 

{¶ 34} “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. * * * 

{¶ 35} “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. 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.” (Citations omitted.) Id.

at 584-585. 

{¶ 36} By contrast, “‘[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.’” Id. at 584, quoting Garbe v. Halloran, 150 Ohio 

St. 476 (1948). 

{¶ 37} Even if the court were to assume that Miami failed to properly train Barry, 

there is no question that Miami’s negligence, if any, merely combined with the 

negligence of Barry to produce plaintiff’s harm. Negligent training alone could not have 

produced plaintiff’s harm in this case. Rather, it was the subsequent careless driving of 

Barry that produced the injury. Thus, no reasonable trier of fact could find that the 

alleged actions or omissions of Miami were either an intervening or superseding cause 

of plaintiff’s harm. 

 

(1944). “Falling asleep at the wheel is not exercising due care but is a total absence of any care.” F.E. 

Avery Co. v. George, 10th Dist. No. 6034 (Apr. 14, 1959). 
Case No. 2011-03251-PR - 2 - JUDGMENT ENTRY

 

{¶ 38} Based upon the foregoing, plaintiff’s motion for partial summary judgment 

shall be granted. 

{¶ 39} Further, the court is aware that the liability issue raised by Barry’s thirdparty complaint against Miami for indemnity is whether, pursuant to R.C. 2743.16(B), 

plaintiff suffered loss to person or property while Barry was engaged in the course and 

scope of his employment with Miami. Additionally, the issue with regard to Barry’s claim 

against Miami for contribution is whether Miami breached a duty to adequately train 

Barry.2 Both of these liability issues will be tried to the court, without a jury, and both 

issues should be decided in advance of the jury trial. Indeed, a determination of the 

remaining liability issues in advance of the jury trial on damages will help simplify the 

presentation of the case to the jury and avoid confusion of the issues. Accordingly, the 

jury trial scheduled for October 29-November 2, 2012, at 10:00 a.m., shall be converted 

to a trial to the court on the liability issue raised in the third-party complaint. A jury trial 

on the issue of damages shall be scheduled thereafter. 

 2

Plaintiff’s original action against Miami, Ct. of Claims Case No. 2010-13091, does not allege 

negligent training. 
Case No. 2011-03251-PR - 2 - JUDGMENT ENTRY

 

Court of Claims of Ohio

The Ohio Judicial Center 

65 South Front Street, Third Floor 

Columbus, OH 43215 

614.387.9800 or 1.800.824.8263 

www.cco.state.oh.us 

PATRICK MUCCIO 

 Plaintiff 

 v. 

SEAN C. BARRY 

 Defendant/Third-Party Plaintiff 

 v. 

MIAMI UNIVERSITY 

 Third-Party Defendant 

Case No. 2011-03251-PR 

Judge Clark B. Weaver Sr. 

JUDGMENT ENTRY

{¶ 40} A non-oral hearing was conducted in this case upon plaintiff’s motion for 

partial summary judgment. For the reasons set forth in the decision filed concurrently 

herewith, plaintiff’s motion for partial summary judgment is GRANTED and judgment is 

rendered in favor of plaintiff in an amount to be determined. 
Case No. 2011-03251-PR - 2 - JUDGMENT ENTRY

 

{¶ 41} The jury trial scheduled for October 29-November 2, 2012, at 10:00 a.m.,

is converted to a trial to the court on the liability issue raised in the third-party complaint.

A jury trial on the issue of damages shall be scheduled thereafter. 

 _____________________________________ 

 CLARK B. WEAVER SR. 

 Judge 

cc: 

 

Aaron M. Shank

Jared M. Klaus 

41 South High Street, 29th Floor 

Columbus, Ohio 43215-6194 

Adam E. Crowell 

Adam P. Richards 

Bradley A. Strickling 

Charles H. Cooper Jr. 

Rex H. Elliott 

2175 Riverside Drive 

Columbus, Ohio 43221 

Amy S. Brown 

Randall W. Knutti 

Assistant Attorneys General 

150 East Gay Street, 18th Floor 

Columbus, Ohio 43215-3130 

Elizabeth L. Moyo 

41 South High Street, 29th Floor 

Columbus, Ohio 43215 

Marshall W. Guerin 

2545 Farmers Drive, Suite 370 

Columbus, Ohio 43235 

006

Filed August 23, 2012 

To S.C. Reporter January 17, 2013