Supreme Court of Georgia

March 8, 2022, Decided

S21Q0909.

Reporter

2022 Ga. LEXIS 52 *

McENTYRE v. SAM’S EAST, INC.

Notice: NOT FINAL UNTIL EXPIRATION OF THE REHEARING PERIOD. THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BY THE COURT.

Prior History: McEntyre v. Sam’s East, Inc., 2021 U.S. Dist. LEXIS 225273 (M.D. Ga., Mar. 19, 2021)

Disposition: Certified questions answered.

Core Terms

load, public road, fastened, assisting, users, covering, becoming, hazard, loose, mattresses, detached, questions, district court, third party, proximate, securing, box spring, injuries, truck

Case Summary

Overview

HOLDINGS: [1]-In a personal injury action arising from a car accident in which a mattress fell from defendant’s truck onto the road, the court held that O.C.G.A. § 40-6-248.1 (b) imposed a duty on a person assisting the operator of a vehicle with loading merchandise onto the vehicle to securely fasten the load, a person assisting in loading a vehicle may be liable in tort for injuries to a third party resulting from a breach of his or her duty to secure that load (and any covering thereon), and when serving as the basis for a civil tort suit, and a violation of § 40-6-248.1 (b) (1) was subject to ordinary tort principles and defenses.

Outcome

Certified questions answered.

LexisNexis® Headnotes

Governments > Legislation > Interpretation

 Legislation, Interpretation

Courts must afford the statutory text its plain and ordinary meaning, must view the statutory text in the context in which it appears, and must read the statutory text in its most natural and reasonable way, as an ordinary speaker of the English language would.

Governments > Legislation > Interpretation

 Legislation, Interpretation

The common and customary usages of the words are important, but so is their context. For context, courts may look to other provisions of the same statute, the structure and history of the whole statute, and the other law — constitutional, statutory, and common law alike — that forms the legal background of the statutory provision in question.

Governments > Legislation > Interpretation

Torts > … > Motor Vehicles > Particular Actors, Circumstances, & Liabilities > Personal Vehicle Operators & Owners

 Legislation, Interpretation

Under the plain language of O.C.G.A. § 40-6-248.1 (b) (1), a person assisting the operator of a vehicle with loading has a duty to other users of the public road to securely fasten the load.

Governments > Legislation > Interpretation

Torts > … > Motor Vehicles > Particular Actors, Circumstances, & Liabilities > Personal Vehicle Operators & Owners

 Legislation, Interpretation

The phrase “no person shall load for operation” as used in O.C.G.A. § 40-6-248.1 (b) (1) does not limit the duty imposed by the statute to secure a load and any covering thereon to the operator of the vehicle or a person primarily responsible for loading. “No person” is an expansive term, and the background law generally provides that those who assist others in violating a statute can be held individually liable for their actions. O.C.G.A. §§ 16-2-20. Section 40-6-248.1 (b) (1) does not contain any language restricting the duty it sets out only to those who have control over the operation of the vehicle.

Transportation Law > Commercial Vehicles > Traffic Regulation

 Commercial Vehicles, Traffic Regulation

O.C.G.A. § 40-6-248.1 (b) (1) imposes the duty to securely fasten loads and coverings on any person who operates a vehicle on a public road or loads a vehicle for operation on a public road. People who assist one another in loading items onto a vehicle that will be operated on a public road are all engaged in loading the vehicle, and therefore would all have a duty to secure the load and any covering thereon under the statute. That duty is owed to other users of the public road.

Governments > Courts > Authority to Adjudicate

 Courts, Authority to Adjudicate

It is not for the Supreme Court of Georgia to expand or contract the scope of the General Assembly’s legislative enactments, unless the policy choices it makes by enacting statutes exceed its constitutional authority.

Torts > … > Motor Vehicles > Particular Actors, Circumstances, & Liabilities > Personal Vehicle Operators & Owners

 Particular Actors, Circumstances, & Liabilities, Personal Vehicle Operators & Owners

Because ordinary principles of negligence apply to this civil tort case, a load becoming loose, detached, or in any manner a hazard to other users of the public road does not necessarily mean in every instance that the load was not securely fastened, and a person assisting in loading a vehicle may be liable only for injuries to a third party proximately caused by a breach of his or her duty to secure that load and any covering thereon.

Torts > Procedural Matters > Statute of Repose > Products Liability

Torts > Products Liability > Theories of Liability > Strict Liability

Torts > Strict Liability > Abnormally Dangerous Activities > Types of Activities

 Statute of Repose, Products Liability

In the civil tort context, there is no general rule of strict liability in Georgia, and strict liability typically applies only to certain circumstances involving abnormally dangerous activities or where the General Assembly has recognized a need to explicitly impose strict liability in tort for the protection of the public. O.C.G.A. § 51-1-11 (b).

Torts > … > Proof > Violations of Law > Standards of Care

 Violations of Law, Standards of Care

The provisions of O.C.G.A. § 40-6-248.1 (b) do not explicitly provide for strict liability in the context of a civil tort action, but rather provide the basis of the underlying duty. More specifically, the statute imposes a duty owed to users of public roads on all persons who assist in loading a vehicle for operation on a public road to secure the load and any covering thereon. When a person is allegedly injured by such a load or covering falling on a public road, ordinary principles of negligence apply, meaning that the plaintiff must establish a breach of this statutory duty, proximate causation, and damages in order to establish liability. O.C.G.A. § 51-1-6.

Torts > … > Causation > Proximate Cause > Foreseeability of Harm

 Proximate Cause, Foreseeability of Harm

Nothing in O.C.G.A. § 40-6-248.1 (b) (1) or in the background of civil tort law permits a trial court to skip over these traditional tort principles. A trial court cannot presume that in every instance where a load has become loose, detached, or in any manner a hazard to other users of the public road that the load was not securely fastened and that any person who assisted in loading or securing the load is liable. In order to recover for any injuries resulting from the breach of a duty, there must be evidence that the injuries were proximately caused by the breach of the duty. And the injuries must be the probable or natural consequence of that breach and must reasonably have been anticipated, apprehended, or foreseen.

Torts > … > Elements > Duty > Foreseeability of Harm

 Duty, Foreseeability of Harm

Probable, in the rule as to causation, does not mean more likely than not but rather not unlikely; or, more definitely, such a chance of harm as would induce a prudent man not to run the risk; such a chance of harmful result that a prudent man would foresee an appreciable risk that some harm would happen.

Torts > … > Elements > Causation > Intervening Causation

 Causation, Intervening Causation

A defendant who is not an operator of the vehicle but assists in loading can only be liable for failing to securely fasten the load in light of the reasonably foreseeable ways in which the load will be transported on a public road. This may require the factfinder to assess a variety of factors, including but not limited to the defendant’s knowledge regarding the nature of the load and the vehicle, road or weather conditions, the operator’s representations about the vehicle’s destination, the length of the drive, or anything else that might affect the loader’s assessment of whether the load was securely fastened. Further, it is possible that a defendant could satisfy his or her duty to secure the load only for that load to later become unsecured in some unforeseeable manner or due to some intervening cause after the defendant is no longer in a position to ensure the safety of the load.

Torts > … > Elements > Causation > Intervening Causation

 Causation, Intervening Causation

Where there is evidence that a third party was injured as a result of a vehicle’s load becoming loose, detached, or in any manner a hazard to users of the public road due to an unforeseeable or unavoidable intervening cause, the defendant-loader may not be liable for injuries arising from the load becoming unsecured.

Headnotes/Summary

Headnotes

Georgia Advance Headnotes

GA(1) (1)

Torts.  > Transportation Torts.  > Motor Vehicles.

OCGA § 40-6-248.1 (b) imposed a duty on a person assisting the operator of a vehicle with loading merchandise onto the vehicle to securely fasten the load, a person assisting in loading a vehicle may be liable in tort for injuries to a third party resulting from a breach of his or her duty to secure that load (and any covering thereon), and when serving as the basis for a civil tort suit, a violation of OCGA § 40-6-248.1 (b) (1) was subject to ordinary tort principles and defenses.

Judges:  [*1] BETHEL, Justice. All the Justices concur.

Opinion by: BETHEL

Opinion

Bethel, Justice.

This case involving personal injury claims arising from an automobile accident is before this Court on three certified questions from the United States District Court for the Middle District of Georgia. The questions seek this Court’s interpretation of OCGA § 40-6-248.1 (b), which provides that “[n]o person shall operate or load for operation, on any public road, any vehicle with any load” unless the load and any covering thereon is “securely fastened” and whether this code section applies to a tort claim. Our responses to the questions certified, as explained more fully below, can be summarized as follows: GA(1) (1) (1) OCGA § 40-6-248.1 (b) imposes a duty on a person assisting the operator of a vehicle with loading merchandise onto the vehicle to securely fasten the load; (2) a person assisting in loading a vehicle may be liable in tort for injuries to a third party resulting from a breach of his or her duty to secure that load (and any covering thereon); and (3) when serving as the basis for a civil tort suit, a violation of OCGA § 40-6-248.1 (b) (1) is subject to ordinary tort principles and defenses.¹

1. The pleadings and discovery materials indicate the following: On February 22, 2016, Mary Louise [*2]  McCall purchased two mattresses and two box springs from the Sam’s Club in Albany, Georgia, which Sam’s East, Inc. operated. Sam’s East employees Darion Ponder and Eddie Shorter assisted McCall by physically placing the mattresses and box springs onto McCall’s pickup truck bed. McCall did not physically load or handle the mattresses and box springs when Ponder and Shorter loaded them onto her truck. The parties dispute whether Ponder and Shorter simply loaded the mattresses and box springs onto the bed of McCall’s truck or whether they also tied the mattresses and box springs to the truck in an attempt to secure them. Upon leaving Sam’s Club, one of the mattresses became loose and fell from the bed of McCall’s truck onto a public roadway. Shortly after the mattress fell onto the road, Amanda McEntyre’s vehicle struck the mattress, resulting in serious injuries to her neck and shoulder.

McEntyre filed a lawsuit against McCall, which was later settled. McEntyre also filed a personal injury lawsuit in the United States District Court for the Middle District of Georgia against Sam’s East, alleging negligence and negligence per se and seeking punitive damages. After Sam’s East filed a motion [*3]  for summary judgment and McEntyre filed a cross-motion for partial summary judgment, the district court stayed the proceedings and certified the following questions to this Court:

(1) Does OCGA § 40-6-248.1 (b) (1) require a person — who is assisting the operator of a vehicle to load merchandise onto said vehicle — to “securely fasten” the load to the vehicle?

(2) Under OCGA § 40-6-248.1 (b) (1), would a person — who assists in loading or securing a load to a vehicle but is not operating the vehicle — be liable to a third party who is injured while the vehicle is in operation on a public road as a result of the load becoming loose, detached, or in any manner … a hazard to other users of the public road?

(3) Under OCGA § 40-6-248.1 (b) (1), does the occurrence of a load becoming loose, detached, or in any manner . . . a hazard to other users of the public road necessarily mean that the load was not securely fastened? That is to say, is OCGA § 40-6-248.1 (b) (1) a strict liability statute?

2. The district court’s certified questions call upon us to interpret the meaning of OCGA § 40-6-248.1 (b) (1), which provides:

(b) No person shall operate or load for operation, on any public road, any vehicle with any load unless such load and any covering thereon is securely fastened so as to prevent such covering or load [*4]  from: (1) Becoming loose, detached, or in any manner becoming a hazard to other users of the public road[.]

In considering the meaning of this statute,

we must presume that the General Assembly meant what it said and said what it meant. To that end, we must afford the statutory text its plain and ordinary meaning, we must view the statutory text in the context in which it appears, and we must read the statutory text in its most natural and reasonable way, as an ordinary speaker of the English language would.

(Citations and punctuation omitted.) Deal v. Coleman, 294 Ga. 170, 172-173 (1) (a) (751 SE2d 337) (2013).

The common and customary usages of the words are important, but so is their context. For context, we may look to other provisions of the same statute, the structure and history of the whole statute, and the other law — constitutional, statutory, and common law alike — that forms the legal background of the statutory provision in question.

(Citations and punctuation omitted.) Mobley v. State, 307 Ga. 59, 69 (4) (a) (834 SE2d 785) (2019).

(a) The first question the district court asked is whether OCGA § 40-6-248.1 (b) (1) requires a person to “securely fasten” the load when he or she is merely assisting the operator of a vehicle in loading it. ” the load.

The question posed by the district court assumes that the person assisting with the loading is not also the operator of the vehicle. ” a vehicle for operation on a public road. People who assist one another in loading items onto a vehicle that will be operated on a public road are all engaged in loading the vehicle, and therefore would all have a duty to secure the load and any covering thereon under the statute. That duty is owed to “other users of the public road.” OCGA § 40-6-248.1 (b) (1) (providing that such duty is “to prevent such covering or load from becoming a hazard to other users of the public road”).

Sam’s East and its amicus contend that interpreting the statute to impose on individuals who lack complete control a duty to secure a load on a vehicle will result in liability for well-meaning and helpful neighbors who assist operators in loading their vehicles or companies that offer such assistance with loading as a “courtesy.”   … the obligation of this Court is to apply the law by its terms, whether we like it or not.”). Accordingly, the policy concerns raised by Sam’s East and its amicus about the extent to which liability may be imposed by OCGA § 40-6-248.1 (b) (1) are properly addressed not by this Court exceeding its constitutional authority to impermissibly limit the duty imposed by the plain language of the statute, but by petitioning the General Assembly and advocating for a change in the law. Moreover, as discussed further in Division (2) (b) below, Sam’s East and its amicus’s concerns about the practical consequences that may flow from the plain text of the statute enacted by the General Assembly may be mitigated by application of traditional tort principles of proximate cause.

(b) The remaining questions posed by the district court asked whether OCGA § 40-6-248.1 (b) (1) is a “strict liability” statute such that the occurrence of a load becoming loose, detached, or in any manner a hazard to other users of the public road necessarily means that the load was not securely fastened, and whether a person who assists in loading or securing a load to a vehicle but who is not operating the vehicle would be liable to a third party who is injured as a [*8]  result. We conclude that because ordinary principles of negligence apply to this civil tort case, a load becoming loose, detached, or in any manner a hazard to other users of the public road does not necessarily mean in every instance that the load was not securely fastened, and a person assisting in loading a vehicle may be liable only for injuries to a third party proximately caused by a breach of his or her duty to secure that load and any covering thereon.

” Reeves v. Bridges, 248 Ga. 600, 602 (284 SE2d 416) (1981), and strict liability typically applies only to certain circumstances involving abnormally dangerous activities² or where the General Assembly has recognized a need to explicitly impose strict liability in tort for the protection of the public. See, e.g., OCGA § 51-1-11 (b) (establishing strict liability in a products liability context).³

  for operation on a public road to secure the load and any covering thereon. When a person is allegedly injured by such a load or covering falling on a public road, ordinary principles of negligence apply, meaning that the plaintiff must establish a breach of this statutory duty, proximate causation, and damages in order to establish liability.⁴ See Johnson v. American Nat. Red Cross, 276 Ga. 270, 272 (1) (578 SE2d 106) (2003); see also OCGA § 51-1-6 (“When the law requires a person to perform an act for the benefit of another or to refrain from doing an act which may injure another, although no cause of action is given in express terms, the injured party may recover for the breach of such legal duty if he suffers damage thereby.”).

  of the duty.” Goldstein, Garber & Salama, LLC v. J.B., 300 Ga. 840, 841 (1) (797 SE2d 87) (2017). And the injuries must be the “probable or natural consequence” of that breach and must “reasonably have been anticipated, apprehended, or foreseen.” Id. at 843 (1).⁵ See also Tyner v. Matta-Troncoso, 305 Ga. 480, 485 (3) (826 SE2d 100) (2019) (“Inextricably entwined with concepts of negligence and proximate cause is a notion of foreseeability, the idea that a defendant could reasonably foresee that an injury would result from his act or omission.” (citations omitted)).

” (citation and punctuation omitted)). For example, the unanticipated actions of a third party or other external factors could cause to a “securely fastened” load to become unsecured.

Moreover, the causal chain could be broken in other ways that would prevent a person assisting with loading from completing the task of securing the load. By way of example only, the owner of the load or vehicle might direct the person assisting with loading to stop securing the load and discontinue contact with the owner’s property. Or the operator [*12]  might interrupt the loader’s efforts to secure the load by driving off or otherwise assuming complete control over the vehicle and the load before the person assisting with loading could complete the task of securing the load. Where there is evidence that a third party was injured as a result of a vehicle’s load becoming loose, detached, or in any manner a hazard to users of the public road due to an unforeseeable or unavoidable intervening cause, the defendant-loader may not be liable for injuries arising from the load becoming unsecured. Accordingly, we cannot say that every instance that a load becomes loose, detached, or in any manner a hazard to other users of the public road necessarily means that the load was not securely fastened and that a person who assisted in loading will be liable.

Certified questions answered. All the Justices concur.

End of Document

---

¹ In addition to the parties’ briefs and presentations at oral argument, the Court was assisted in answering the three certified questions by an amicus curiae brief from Georgians for Lawsuit Reform.

² Historically, this has included activities like owning vicious animals or explosive blasting, though the statute pertaining to vicious animals was amended to clarify that the standard for liability is negligence, not strict liability. See OCGA § 51-2-7; Steagald v. Eason, 300 Ga. 717, 718 n.2 (797 SE2d 838) (2017) (noting the change). See also Berger v. Plantation Pipeline Co., 121 Ga. App. 362, 363 (6) (173 SE2d 741) (1970) (one who sets off an explosive blast “is absolutely liable to the injured party, despite the exercise of due care”).

³ We recognize that a violation of OCGA § 40-6-248.1 (b) is also a misdemeanor criminal offense. See OCGA § 40-6-249 (providing that violations of OCGA § 40-6-248.1 are misdemeanors and shall be punished as set forth in OCGA § 16-7-43); see also OCGA §§ 16-7-43 (b) (1) & (2) (providing that violations of OCGA § 16-7-43 (a) are misdemeanors and that violators may be directed by the court to pick up and remove litter, subject to certain conditions, as part of their sentence); 17-10-3 (a) (1) (providing that, except as otherwise provided by law, misdemeanor offenses are to be punished by a fine not to exceed $1000, 12 months in jail, or both). And these sorts of “Rules of the Road” offenses are sometimes referred to as “strict liability” crimes. See State v. Ogilvie, 292 Ga. 6, 8 (2) (a) (734 SE2d 50) (2012); see also Semones, 200 Ga. App. at 3-4 (trial court did not err in determining that violation of the predecessor to OCGA § 40-6-248.1 (b), when defendant failed to secure chairs in his vehicle before operating it on a public roadway, was a strict liability criminal offense). But strict liability criminal offenses are not the same as strict liability torts.

⁴ Because the question is not posed to us, we need not answer whether a violation of duty imposed by OCGA § 40-6-248.1 (b) may provide the basis for asserting a claim of negligence per se. See Murphy v. Bajjani, 282 Ga. 197, 200 (2) (647 SE2d 54) (2007) (“[N]egligence per se arises when a statute is violated, the person injured by the violation is within the class of persons the statute was intended to protect, and the harm complained of was the harm the statute was intended to guard against.” (citation omitted)); see also Amick v. BM & KM, Inc., 275 FSupp.2d 1378, 1381 (II) (A) (N.D. Ga. 2003) (“In Georgia, negligence per se arises when a defendant violates a statute or ordinance, satisfying, as a matter of law, the first two elements of a negligence claim.”).

⁵  We have recently clarified that

“probable,” … in the rule as to causation, does not mean “more likely than not” but rather “not unlikely”; or, more definitely, “such a chance of harm as would induce a prudent man not to run the risk; such a chance of harmful result that a prudent man would foresee an appreciable risk that some harm would happen.”

(Citation omitted.) Johnson v. Avis Rent A Car System, LLC, 311 Ga. 588, 592 (858 SE2d 23) (2021).

⁶ Given the questions presented in this case, we need not address the scope of the duty imposed upon the operator of the vehicle under this statute and the manner in which traditional tort principles would apply to the vehicle’s operator in the event a load on the vehicle became loose, detached, or otherwise hazardous.

Clark v. Whaley

United States District Court for the Southern District of Ohio, Western Division

March 10, 2022, Decided; March 10, 2022, Filed

Case No. 1:20-cv-300

Reporter

2022 U.S. Dist. LEXIS 42381 *

ALYSON CLARK, Plaintiff, v. BRENT WHALEY, et al., Defendants.

Core Terms

driver, truck, driving, speed, genuine dispute, summary judgment, pedestrian, travel, nonmoving party, highway, struck, brake

Counsel:  [*1] For Alyson Clark, Administrator of the Estate, on behalf of, Logan Clark, Plaintiff: Jeffrey Craig Shipp, LEAD ATTORNEY, Wallace Boggs, PLLC, Ft. Mitchell, KY.

For Brent Whaley, Individually and in his official capacity, Ryan Saylor, Individually and in his official capacity, Defendants: Daniel T Downey, LEAD ATTORNEY, Fishel, Hass, Kim & Albrecht Downey, LLP, New Albany, OH; Melanie J. Williamson, Fishel Downey Albrecht Riepenhoff LLP, New Albany, OH.

Judges: DOUGLAS R. COLE, UNITED STATES DISTRICT JUDGE.

Opinion by: DOUGLAS R. COLE

Opinion

OPINION AND ORDER

This cause is before the Court on Defendants Kelly Richardson (“Richardson”) and Celadon Trucking Services, Inc.’s (“Celadon,” and together with Richardson the “Celadon Defendants”) Motion for Summary Judgment (Doc. 34). Because the Court finds as a matter of law that Richardson did not drive negligently, the Court GRANTS the Celadon Defendants’ Motion (Doc. 34) and DISMISSES Clark’s estate’s claims against the Celadon Defendants WITH PREJUDICE.

BACKGROUND

This case arose out of an accident that occurred when a truck struck a pedestrian who was walking in black clothes, with no light, shortly after one o’clock in the morning, in the middle of a traffic lane, on [*2]  an interstate highway. The driver was Kelly Richardson, who works for Celadon Trucking Services. The pedestrian, Logan Clark, died as a result of the accident.

The chain of events that led to Clark’s unfortunate demise began the prior evening, when Clark consumed at least four alcoholic drinks at Eli’s Sports Bar over a period of several hours before getting into his car to drive home via northbound I-71. (See Compl., Doc. 1, #5; see also Whaley Dep., Doc. 37, #1193-94, 1199). Around midnight that night, Brent Whaley, a deputy sheriff for the Warren County Sheriff’s Office (and a defendant in this case), was driving behind Clark. (Whaley Dep., Doc. 37, #1178, 1193-94). Between mile markers 31 and 32 on I-71 north, near Lebanon, Ohio, Whaley saw Clark drive onto the grass median between the northbound and southbound highway lanes and get stuck. (See id. at #1198, 1243). Clark had apparently missed his exit and was trying, unsuccessfully, to cross the median so he could travel south and then exit to take State Route 48 home. (See id. at #1199). Whaley stopped his car on the shoulder near Clark’s, got out, and approached Clark’s vehicle. (Id.). Whaley issued Clark a citation for driving [*3]  on the median. (Id. at #1223; Narrative Supplement to Police Report, Whaley Dep. Ex. 1, Doc. 38-1, #1339). But Whaley did not detain or arrest Clark, nor did Whaley transport Clark to the station or escort Clark home. (See Whaley Dep., Doc. 37, #1253). Instead, Clark told Whaley that Clark had a tow truck coming for Clark’s vehicle. (Id. at #1203). Thus, after Whaley left, Clark and his car remained on the grass median. (See id. at #1243). At that point on I-71 north there are two traffic lanes (and a shoulder on each side). (See id. at #1193). The area is not illuminated by any road lighting. (See Richardson¹ Decl., Doc. 30-1, #648). The speed limit is seventy miles per hour. (Bens Dep., Doc. 28, #160).

The entire interaction between Whaley and Clark lasted about twenty-two minutes. (Whaley Dep., Doc. 37, #1261). About an hour after Whaley left, around 1:22 a.m., Richardson, a truck driver for Celadon, was driving a Celadon tractor-trailer north on I-71 near mile marker 31. (See Richardson Decl., Doc. 30-1, #645-46). Her husband, Carl Richardson, also a truck driver for Celadon, was sleeping in the cabin of the truck. (Id. at #645-47). Richardson was driving in the right lane behind [*4]  another truck. (Id. at #647). She decided to pass the truck. (Id.). In order to do so, Richardson changed lanes from the right lane into the left lane. (Id.). Her speed was about 65 miles per hour. (Id.). Richardson intended to move back into the right lane after passing the other truck. (Id.). Throughout these events, Richardson was speaking to a friend by phone using a voice-activated hands-free headset. (See Richardson Dep., Doc. 35, #840).

At some point, Richardson saw Clark in front of her, standing in the middle of the left traffic lane, in which Richardson was then driving. (Richardson Decl., Doc. 30-1, #647). Clark was wearing black clothing. (Id. at #648; see also Whaley Dep., Doc. 37, #1202). Richardson “immediately” tried to slam on the brakes and moved to the left in an attempt to avoid him (the other truck was still to her right). (Richardson Decl., Doc. 30-1, #647). Unfortunately, Richardson struck Clark with the right front of her vehicle. (Id.). Richardson’s truck eventually came to a full stop on the left shoulder about 150-300 feet further on. (Id.). Richardson’s husband, Carl, got out to see what had happened. (Id.). Clark’s body was now in the middle of the trailer [*5]  underneath the air vent. (Id.). Clark had no pulse and was not breathing. (Id.). Emergency medical technicians arrived on the scene and pronounced Clark dead. (Id. at #648).

Later that night, Warren County Sheriff’s Deputy Rick Bens (not a defendant in this action) completed a Fatality Accident Report that found the conditions at the scene consistent with Richardson’s narrative of events. (See Bens Dep., Doc. 28, #125, 165). In particular, Bens used the stopping distance of Richardson’s truck, along with information available from its electronic control module, to calculate the speed at which Richardson had been traveling. (See generally Bens Dep., Doc. 28, #298-315). Those calculations yielded an estimated range of 65-70 miles per hour. (See id. at #307). There is no evidence in the record that Richardson was travelling faster than the posted speed limit, nor was she cited for speeding.

On April 15, 2020, Plaintiff Alyson Clark initiated this action on behalf of Clark’s estate by filing her Complaint (Doc. 1) in this Court. Clark’s estate pursues constitutional claims under 42 U.S.C. § 1983 against Deputy Whaley and his supervisor, Ryan Saylor, for deliberate indifference to Clark’s safety based on [*6]  Whaley leaving Clark stranded on the interstate after citing him. (See Compl., Doc. 1, #14, 16). More relevant here, Clark’s estate also alleges that Richardson, and therefore Celadon, caused Clark’s death by driving negligently. (See id. at #21-22).

On March 25, 2021, the Celadon Defendants moved for summary judgment (Doc. 34). They argue that, as a matter of law on the undisputed facts here, Richardson did not drive negligently. Clark’s estate filed its opposition (Doc. 39) on April 15, 2021, and the Celadon Defendants replied (Doc. 44) in support of their Motion (Doc. 34) on April 30, 2021. The matter is now fully briefed and before the Court.

LEGAL STANDARD

Summary judgment is proper “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The burden is on the moving party to conclusively show that no genuine issue of material fact exists. Lansing Dairy, Inc. v. Espy, 39 F.3d 1339, 1347 (6th Cir. 1994). Once the movant presents evidence to meet its burden, the nonmoving party may not rest on its pleadings, but must come forward with significant probative evidence to support its claim. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); Lansing Dairy, 39 F.3d at 1347.

This Court is not obliged to search the record sua sponte for genuine issues [*7]  of material fact. Betkerur v. Aultman Hosp. Ass’n, 78 F.3d 1079, 1087 (6th Cir. 1996); Guarino v. Brookfield Twp. Trs., 980 F.2d 399, 404-06 (6th Cir. 1992). Instead, the nonmoving party must “designate specific facts or evidence in dispute.” Jordan v. Kohl’s Dep’t Stores, Inc., 490 F. App’x 738, 741 (6th Cir. 2012) (quotation omitted). If the nonmoving party fails to make the necessary showing for an element upon which it bears the burden of proof, then the moving party is entitled to summary judgment. Celotex Corp., 477 U.S. at 323.

Granting summary judgment depends upon “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Amway Distribs. Benefits Ass’n v. Northfield Ins. Co., 323 F.3d 386, 390 (6th Cir. 2003) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986)). In sum, the nonmoving party, at this stage, must present some “sufficient disagreement” that would necessitate submission to a jury. See Moore v. Phillip Morris Cos., Inc., 8 F.3d 335, 340 (6th Cir. 1993) (quoting Anderson, 477 U.S. at 251-52). In making that determination, though, the Court must view the evidence in the light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986); Cox v. Ky. Dep’t of Transp., 53 F.3d 146, 150 (6th Cir. 1995) (“In arriving at a resolution, the court must afford all reasonable inferences, and construe the evidence in the light most favorable to the nonmoving party.”).

LAW AND ANALYSIS

The Celadon Defendants argue that there is no genuine dispute as to whether Richardson drove negligently when she struck Clark. (See Mot. for Summ. J. (“Mot.”), Doc. 34, #689-91). The Court agrees. Under Ohio law, a driver traveling [*8]  lawfully in her lane normally has no duty to look out for pedestrians in front of her, but a driver does have a duty to take reasonable steps to avoid colliding with a pedestrian in her right-of-way once the driver discovers a dangerous situation. See Snider v. Nieberding, 2003-Ohio-5715, 2003 WL 22427808, at *2 (Ohio Ct. App. 2003) (citing Deming v. Osinski, 24 Ohio St. 2d 179, 265 N.E.2d 554, 555 (Ohio 1970)); Lumaye v. Johnson, 80 Ohio App. 3d 141, 608 N.E.2d 1108, 1110 (Ohio Ct. App. 1992).

Under these principles, Richardson was not negligent. There is no evidence that Richardson had any reason to expect to encounter a pedestrian in the left lane of northbound I-71 in the middle of the night. Cf. Dixon v. Nowakowski, No. L-981372, 1999 Ohio App. LEXIS 3946, 1999 WL 652001, at *4 (Ohio Ct. App. Aug. 27, 1999) (“There is no evidence in the record before us that appellant appeared in appellee’s lane of travel at a sufficient distance ahead of her to give her time … to bring her automobile to a stop and avoid the collision.”), There is no evidence that Richardson was speeding or moving irregularly. See Copas v. McCarty, CASE No. CA85-03-005, 1985 Ohio App. LEXIS 8606, 1985 WL 7711, at *1 (Ohio Ct. App. Aug. 26, 1985) (noting driver was not speeding). And as soon as Richardson did see Clark, who was wearing black clothing while walking in the middle of the left lane of an unlit portion of the highway, Richardson’s uncontradicted testimony is that she “immediately” slammed on the brakes and swerved in an unfortunately unsuccessful attempt to avoid hitting him. (Richardson Decl., Doc. 30-1, #647). On those facts, Richardson was not negligent. [*9] 

Perhaps recognizing the problems these facts create, Clark’s estate tries, but fails, to create a genuine dispute regarding them. Specifically, Clark’s estate points to a two-page affidavit from its own accident reconstructionist, Neil Gilreath, which identifies what Clark’s estate characterizes as flaws in Bens’ accident reconstruction report. (See Resp. in Opp’n to Mot. (“Opp’n”), Doc. 39, #1371 (citing Gilreath Aff., Opp’n Ex. 1, Doc. 39-1, #1378)). For example, Gilreath says that Bens did not conduct his speed testing using the same tractor-trailer as was involved in the accident. (See id.). In turn, the Celadon Defendants attempt to discredit Gilreath’s report contesting Bens’ conclusions. (See Reply in Supp. of Mot. (“Reply”), Doc. 44, #1403).

But this battle of experts is largely beside the point. On summary judgment, Clark’s estate must do more than impeach Bens’ report. Indeed, even if Richardson’s testimony were the only evidence on which the Celadon Defendants relied to argue that Richardson did not drive negligently, Clark’s estate would still have the burden to point the Court to other evidence sufficient to create a genuine dispute. See Moore, 8 F.3d at 340. Gilreath’s report is no help there. [*10]  Gilreath does not conclude, affirmatively and on the basis of competent record evidence, that some aspect of the accident contradicted Richardson’s account in a material respect. For example, Gilreath did not conduct his own testing or calculations to determine that Richardson was in fact driving faster than the 65-70 miles per hour to which she testified, and which Bens’ report corroborated. In the absence of any such affirmative evidence of negligence, mere rebuttal of some aspects of Bens’ report, even if meritorious, would not create a genuine dispute as to whether Richardson drove negligently.

The closest Gilreath comes to contradicting a material aspect of Richardson’s story is the following bare conclusion, unsupported by further evidence or explanation: “The DDEC Reports derived from the tractor’s Electronic Control Module (ECM) do not reflect a ‘hard brake’ at the time in which Defendant Richardson claims to have spotted Mr. Clark and attempted to stop the tractor trailer.” (Gilreath Aff., Opp’n Ex. 1, Doc. 39-1, #1378). The Court agrees with the Celadon Defendants that this single sentence is insufficient to create a genuine dispute as to whether Richardson drove negligently. [*11]  (See Reply, Doc. 44, #1403). Gilreath provides no citation to the reports he reviewed, declines to explain how he defines a “hard brake,” and entirely omits his methodology for determining when Richardson would have seen Clark. See Fed. R. Evid 702 (expert testimony must be “based on sufficient facts or data” and “the product of reliable principles and methods”). Gilreath also does not address whether a “hard brake” would have been part of the standard of care for a truck driver encountering an unexpected pedestrian on the highway under the circumstances of the accident. Accordingly, Gilreath’s Affidavit fails to create a genuine dispute as to whether Richardson drove negligently.

Clark’s estate also tries another tack, advancing a negligence per se theory based on Richardson’s alleged violation of O.R.C. 4511.21(A), which prohibits operating a vehicle “at a greater speed than will permit the person to bring it to a stop within the assured clear distance ahead.”² According to Clark’s estate, Richardson “clearly” violated this statute because she was not able to stop her truck in time to avoid hitting Clark. (Opp’n, Doc. 39, #1372). But that argument proves too much. According to Clark’s estate’s reasoning, any driver [*12]  who hits a person or object in her path of travel has violated O.R.C. 4511.21(A). That is not the law. Instead, as Clark’s estate itself recites, a driver violates the assured clear distance provision when “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 path, and (4) was reasonably discernible.” Pond v. Leslein, 72 Ohio St. 3d 50, 1995- Ohio 193, 647 N.E.2d 477, 478 (Ohio 1995) (citation omitted). Here, there is no genuine dispute that Clark, a pedestrian standing in the left lane of an unlit portion of highway wearing dark clothing in the middle of the night, was not “reasonably discernible.”³ Accordingly, Richardson did not violate O.R.C. 4511.21(A), and Clark’s estate’s negligence per se theory fails.

Undeterred, Clark’s estate argues that Richardson violated Celadon’s written policies by being on the phone with her friend at the time she struck Clark. (See Opp’n, Doc. 39, #1369). There are a few problems with that argument. First, as the Celadon Defendants point out, the applicable portion of Celadon’s communication devices policy by its terms prohibits use of only “hand held” devices, which Richardson’s headset was not. (See Celadon Commc’n [*13]  Device Policy, Richardson Dep. Ex. 4, Doc. 36-4, #1137; see also Richardson Dep., Doc. 35, #840, 842). Second, Clark’s estate cites no Ohio case, and the Court is aware of none, that upholds a theory of negligence per se based only on violation of an employer’s policy, rather than of a statute or regulation. See, e.g., Lang v. Holly Hill Motel, Inc., 122 Ohio St. 3d 120, 2009- Ohio 2495, 909 N.E.2d 120, 123 (Ohio 2009) (“violation of a statutory duty constitutes negligence per se”) (emphasis added). To the extent that Celadon’s communication devices policy refers to federal regulations applicable to commercial drivers, those regulations also apply specifically to hand-held devices. See 49 C.F.R. § 392.82 (“No driver shall use a hand-held mobile telephone while driving a [commercial motor vehicle].”). Third, nothing more than sheer speculation supports Clark’s estate’s theory that Richardson would not have struck and killed Clark had she not been talking on the phone. See Celotex Corp., 477 U.S. at 324 (requiring significant probative evidence to survive summary judgment). And, even under negligence per se, a plaintiff still must prove causation. See, e.g., Boushack v. Grisez Inv., L.P., 2016- Ohio 355, 58 N.E.3d 528, 531 (Ohio Ct. App. 2016) (“However, we emphasize that negligence per se does not mean the same thing as liability per se; a plaintiff still must prove the other elements of a negligence claim, i.e. [*14] , proximate causation and damages.”) (citation omitted).

CONCLUSION

For the foregoing reasons, the Court GRANTS the Celadon Defendants’ Motion (Doc. 34) and DISMISSES WITH PREJUDICE Clark’s estate’s claims against the Celadon Defendants, and accordingly also DISMISSES WITH PREJUDICE the Celadon Defendants’ cross-claims as MOOT. The Court DIRECTS the Clerk to TERMINATE the Celadon Defendants from this action. Clark’s claims against all other Defendants remain pending.

SO ORDERED.

March 10, 2022

DATE

/s/ Douglas R. Cole

DOUGLAS R. COLE

UNITED STATES DISTRICT JUDGE

End of Document

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¹ As further described below, both Kelly Richardson and her husband, Carl Richardson, were in the vehicle that struck Whaley. They filed a joint declaration, which the Opinion refers to as the Richardson Declaration.

² In its Complaint, Clark’s estate also mentions several other statutes that Richardson allegedly violated. (See Compl., Doc. 1, #21). In its briefing on the instant Motion, though, Clark’s estate does not pursue, and has therefore abandoned, any argument that Richardson was negligent per se based on statutes other than O.R.C. 4511.21(A). See Road Sprinkler Fitters Loc. Union No. 669 v. Indep. Sprinkler Corp., 10 F.3d 1563, 1568 (11th Cir. 1994) (argument not raised in opposition to motion for summary judgment abandoned).

³ As the Celadon Defendants point out, assured clear distance violations tend to involve large, noticeable objects such as other vehicles. (See Reply, Doc. 44, #1404 (citing cases)).