Kerns v. Hale , 2023 Ohio 1175 ( 2023 )

[Cite as Kerns v. Hale, 2023-Ohio-1175.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
SCIOTO COUNTY
JEROMY KERNS, :
: Case No. 21CA3970
Plaintiff-Appellant, :
:
v. : DECISION AND JUDGMENT
: ENTRY
ANDREW HALE, et al., :
: RELEASED: 04/03/2023
Defendants-Appellees. :
APPEARANCES:
Andrew S. Hanes and Robert T. Trujillo, Wheelersburg, Ohio for Appellant.
Susan M. Salyer and John R. Hass, Loveland, Ohio for Appellees.
Wilkin, J.
{¶1} Plaintiff-appellant, Jeromy J. Kerns (“Kerns”), appeals the Scioto
County Court of Common Pleas judgment that granted defendants-appellees,
Andrew Hale (“Hale”) and Holly Hale’s (“Holly”) motion for summary judgment.
Raising six assignments of error, Kerns contests the entry of summary judgment
in favor of Hale claiming there are genuine issues of material fact as to (1)
whether Hale maintained an assured clear distance ahead (“ACDA”) when
operating his vehicle, (2) whether Hale “was negligent in failing to control [his]
vehicle[,]” (3) whether Hale “was negligently operating [his] vehicle[,]” (4) whether
the trial should have awarded him punitive damages, (5) whether the court
should have granted him attorney fees, and (6) whether Hale’s mother, Holly,
negligently entrusted her vehicle to him. Hale filed a brief in response alleging
that the trial court did not err in granting summary judgment in his favor because
Scioto App. No. 21CA3970 2
there were no genuine issues of material fact pertaining to any of Kerns’
assigned errors.
{¶2} After reviewing the parties’ arguments, the record, and the applicable
law, we sua sponte find that the trial court’s summary judgment is not a final
appealable order. More specifically, the judgment did not address Kerns’ claim
that Hale did not maintain an “ACDA” at the time of the accident. Therefore, we
dismiss Kerns’ appeal.
FACTS AND PROCEDURAL BACKGROUND
{¶3} On the evening of September 18, 2018, Kerns and Thomas Coe
(“Coe”) were walking westbound on U.S. Route 52 from Wheelersburg to
Portsmouth, a “two-way divided” roadway. At that same time, Hale was driving
home from a high school soccer game also westbound on U.S. Route 52. After
driving under an overpass and preparing to take the exit ramp to State Route
140, Hale’s vehicle struck Kerns and Coe. Hale, who claimed to not have his
phone, left the scene, drove a short distance to his home, where his mother
called first responders, and then he and his parents returned to the scene of the
accident.
{¶4} An Ohio State Highway Patrol trooper took statements from Hale and
Coe, but did not speak to Kerns, who had suffered “incapacitating” injuries. Hale
told the trooper that he was westbound on U.S. Route 52 and as he was
preparing to take the exit to State Route 140, he saw “figures in the middle of the
highway.” He further stated: “I slammed on my brakes and due to the wet
conditions slid and hit the figures.” When the trooper asked him how many
Scioto App. No. 21CA3970 3
figures did you see, Hale stated: “I saw a #12 on a shirt, then I saw two people.”
He told the trooper that the figures were “in the middle of the road.” He said that
it was “dark” and raining at the time of the accident. He claimed that his speed
was 55 miles per hour.
{¶5} According to the trooper’s Traffic Crash Report (“report”), Coe
admitted that he had consumed two beers the day of the accident. He also
claimed that he was walking “off the side of the road” at the time of the accident.
Despite Coe’s statement, the report indicates that “[Kerns and Coe] were walking
in the roadway westbound on the U.S. 52 off ramp to SR 140.” The report also
stated that “[Kerns and Coe] were intoxicated/impaired at the time of the crash.
They both had an odor of alcoholic beverage coming from their breath and
person and their speech was slurred. Due to the injuries sustained, no chemical
test could be obtained.” The report went on to state that Kerns and Coe were
“intoxicated pedestrians and would be charged under R.C. 4511.481 once
contact could be made with both.” There is no evidence in the record that either
was charged.
{¶6} In his deposition, Hale recalled the accident: “I just see something in
the road, so I jump on my brakes, reactionary. I was right on top of them when I
see him. It was wet and it was dark. I mean, that’s when I made contact with
them. The truck came to a stop. It stalled out. So it was reactionary.” Hale
claimed that he struck Kerns and Coe just after travelling under an overpass and
prior to the exit for State Route 140. Counsel asked Hale: “Were you able to
discern at that time what they were?” Hale testified: “No. It was just figures. I
Scioto App. No. 21CA3970 4
couldn’t tell if it was, you know, a deer crossing the highway or if it was – what it
could have been.” Hale estimated that he was “on the brakes” approximately 50
feet before striking Kerns and his companion. Hale maintained that he did not
comprehend that he had struck persons until they rolled onto his hood after
impact.
{¶7} Hale testified that just prior to the accident he was going “maybe 50
miles per hour” and that the vehicle he was driving was not equipped with
antilock-brake technology or high-beam headlights. He claimed that after impact
the bodies of both Kerns and Coe were on the hood of his vehicle for “maybe 50
to 100 yards,” before one of the bodies was thrown into the middle of the road
and the other landed on the white shoulder line. Hale maintained that visibility
that night was “[n]ot too great with, you know, the overpass being built. It was
kind of shadowed in even more.” Lighting at that interchange had not yet been
installed.
{¶8} Kerns was also deposed. He testified that when he departed
Wheelersburg the day of the accident, he was walking on the berm of U.S. Route
52. He claimed that it was daylight when they departed, but could not remember
the time of day when the accident occurred. He later testified that he could not
recall walking from the Wheelersburg entrance onto U.S. Route 52, or how they
reached the exit for State Route 140. He also stated that he did not recall seeing
the vehicle prior to the accident, or lying on the ground after the accident.
{¶9} On July 2, 2020, Kerns filed a complaint asserting four “claims.” The
first three claims alleged that Hale acted negligently, grossly negligently,
Scioto App. No. 21CA3970 5
recklessly, willfully and wantonly and maliciously, which caused Kerns’ injuries.
The fourth claim alleged that Hale’s mother negligently entrusted her vehicle to
Hale.
{¶10} On June 18, 2021, Hale filed a motion for summary judgment.
Kerns filed a memorandum contra. Hale filed a reply. The trial court issued a
judgment entry that granted Hale summary judgment. Construing R.C.
4511.48(A), which essentially addresses the rights of drivers and pedestrians,
the trial court found “there is no evidence that Defendants were negligent or
reckless in their actions surrounding the vehicle-pedestrian accident of
September 17, 2018.” It is this judgment that Kerns appeals.
ASSIGNMENTS OF ERROR
I. THE TRIAL COURT ERRED IN GRANTING DEFENDANT-APPELLEE
ANDREW HALE’S MOTION FOR SUMMARY JUDGMENT AS
GENUINE ISSUES OF MATERIAL FACT EXIST AS TO WHETHER
DEFENDANT-APPELLEE ANDREW HALE WAS NEGLIGENT IN
FAILING TO MAINTAIN AN ASSURED CLEAR DISTANCE BEFORE
STRIKING PLAINTIFF-APPELLANT WITH THE VEHICLE HE WAS
OPERATING
II. THE TRIAL COURT ERRED IN GRANTING DEFENDANT-APPELLEE
ANDREW HALE’S MOTION FOR SUMMARY JUDGMENT AS
GENUINE ISSUES OF MATERIAL FACT EXIST AS TO WHETHER
DEFENDANT-APPELLEE ANDREW HALE WAS NEGLIGENT IN
FAILING TO CONTROL THE VEHICLE HE WAS OPERATING.
III. THE TRIAL COURT ERRED IN GRANTING DEFENDANT-APPELLEE
ANDREW HALE’S MOTION FOR SUMMARY JUDGMENT AS
GENUINE ISSUES OF MATERIAL FACT EXIST AS TO WHETHER
DEFENDANT-APPELLEE ANDREW HALE WAS NEGLIGENTLY
OPERATING THE VEHICLE AT ISSUE.
IV. THE TRIAL COURT ERRED IN GRANTING DEFENDANT-APPELLEE
ANDREW HALE’S MOTION FOR SUMMARY JUDGMENT WITH
REGARDS TO PLAINTIFF-APPELLANT’ CLAIM FOR PUNITIVE
DAMAGES.
Scioto App. No. 21CA3970 6
V. THE TRIAL COURT ERRED IN GRANTING DEFENDANT-APPELLEE
ANDREW HALE’S MOTION FOR SUMMARY JUDGMENT AS
GENUINE ISSUES OF MATERIAL FACT EXIST REGARDS TO
PLAINTIFF-APPELLANT’S CLAIM FOR ATTORNEY FEES.
VI. THE TRIAL COURT ERRED IN DISMISSING DEFENDANT-
APPELLANT’S NEGLIGENT ENTRUSTMENT CLAIM AGAINST
DEFENDANT-APPELLEE HOLLY HALE AS GENUINE ISSUES OF
MATERIAL FACT EXIST AS TO WHETHER DEFENDANT-APPELLEE
HOLLY HALE WAS NEGLIGENT IN ENTRUSTING HER VEHICLE TO
DEFENDANT-APPELLEE ANDREW HALE.
LAW AND ANALYSIS
{¶11} Before addressing the merits of Kerns’ assignments of error, we
first must determine whether the trial court’s summary judgment is a final
appealable order. Because it appears that the trial court’s summary judgment
failed to address Kerns’ ACDA statute R.C. 4511.21(A), we must consider
whether the summary judgment was a final appealable order. Hale maintains
“Kerns raises an assignment of error for negligence per se, which was never
pleaded.” Therefore, we begin by examining whether Kerns properly raised
the issue of ACDA, which is a negligence per se claim, in the trial court.
1. Kerns Did Not Waive His ACDA Claim
{¶12} “Civ.R. 8(A) requires only a short and plain statement of the claim
that gives the defendant fair notice of the plaintiff's claim and the grounds upon
which it is based.” Ogle v. Ohio Power Co., 180 Ohio App. 3d 44, 2008-Ohio-
7042, 903 N.E.2d 1284, ¶ 5 (4th Dist.), citing Illinois Controls, Inc. v. Langham,
70 Ohio St.3d 512, 526, 639 N.E.2d 771 (1994). “Thus, a plaintiff is not required
to plead the legal theory of the case at the pleading stage and need only give
Scioto App. No. 21CA3970 7
reasonable notice of the claim.” Id., citing State ex rel. Harris v. Toledo, 74 Ohio
St.3d 36, 656 N.E.2d 334 (1995).
{¶13} Several Ohio appellate districts have recognized that “ ‘Ohio law
does not require negligence per se to be pled with particularity because
negligence and negligence per se are closely intertwined concepts and Ohio’s
Civ.R. 8 requires only notice pleading.’ ” Arnett v. Mong, 2016-Ohio-2893, 65
N.E.3d 72, ¶ 8 (12th Dist.), quoting Base-Smith v. Lautrec, Ltd., 12th Dist. Butler
No. CA2013-07-115, 2014-Ohio-349, ¶ 4, fn. 2; see also Gress v. Wechter, 6th
Dist. Huron No. H-12-023, 2013-Ohio-971. Therefore, “ ‘ “when a plaintiff raises
a negligence claim, the defendant is on notice that negligence per se may be
raised, regardless of whether the statute was listed in the complaint.” ’ ” Williams
v. AVI Food Sys., Inc., 8th Dist. Cuyahoga No. 109222, 2020-Ohio-5001, ¶ 13,
quoting Collier v. Libations Lounge, L.L.C., 8th Dist. Cuyahoga No. 97504, 2012-
Ohio-2390, ¶ 24, quoting Lone Star Steakhouse & Saloon of Ohio, Inc. v.
Quaranta, 7th Dist. Mahoning No. 01 CA 60, 2002-Ohio-1540, ¶ 42. The
Supreme Court of Ohio has repeatedly held that a “[v]iolation of the assured clear
distance ahead statute constitutes negligence per se.” (Emphasis sic.) Pond v.
Leslein, 72 Ohio St. 3d 50, 53, 1995-Ohio-193, 647 N.E.2d 477, citing Skinner v.
Pennsylvania R.R. Co., 127 Ohio St. 69, 186 N.E. 722 (1933), syllabus; Transp.
Corp. of Indiana v. Lenox Trucking, Inc., 15 Ohio St.2d 1, 238 N.E.2d 539 (1968),
paragraph one of the syllabus; and Blair v. Goff–Kirby Co., 49 Ohio St.2d 5, 358
N.E.2d 634 (1976).
{¶14} “ ‘A party * * * contesting the opposing party's motion for summary
Scioto App. No. 21CA3970 8
judgment must inform the trial court and the other party of the basis of his motion,
so that the court and other party are on notice of all potential issues.’ ” (Ellipses
sic.) Miranda v. Meijer Stores Ltd. Partnership, 2d Dist. Montgomery No. 23334,
2009-Ohio-6695, ¶ 15, quoting Crandall v. City of Fairborn, 2d Dist. Greene No.
2002-CA-55, 2003-Ohio-3765, ¶ 18. “[G]enerally, a plaintiff cannot enlarge their
claims during the summary judgment phase of litigation and is limited to the
allegations of their pleading.” Williams at ¶ 12, citing Karsnak v. Chess Fin.
Corp., 8th Dist. Cuyahoga No. 97312, 2012-Ohio-1359, ¶ 48. However, where
plaintiff has put a defendant on notice of a negligence per se claim by filing a
general negligence claim in their complaint, courts have recognized that plaintiff
may initially assert a negligence per se claim in memorandum opposing a motion
for summary judgment. See Mong at ¶ 8, Wechter at ¶ 15, and Williams at ¶ 12-
13.
{¶15} Similar to those cases, Kerns filed a complaint alleging a general
negligence claim. Subsequently, in his memorandum contra to Hale’s motion for
summary judgment, Kerns asserted that Hale violated ACDA. Therefore,
consistent with the aforementioned law, we find that Kerns properly raised his
ACDA claim in the trial court.
2. The Trial Court’s Summary Judgment is Not a Final Appealable Order
{¶16} “The Ohio Constitution limits an appellate court's jurisdiction to
the review of ‘final orders’ of lower courts.” Dill v. Athens, 4th Dist. Athens No.
12CA30, 2013-Ohio-5888, ¶ 6, citing Section 3(B)(2), Article IV, Ohio
Constitution. Absent a final order, a court of appeals lacks subject-matter
Scioto App. No. 21CA3970 9
jurisdiction over its appeal. CitiMortgage, Inc. v. Roznowski, 139 Ohio St.3d
299, 2014-Ohio-1984, 11 N.E.3d 1140, ¶ 10.
{¶17} “A trial court's order is final and appealable only if it satisfies the
requirements of R.C. 2505.02 and, if applicable, Civ.R. 54(B).” McCann v.
Webb, 4th Dist. Adams No. 21CA1128, 2022-Ohio-2318, ¶ 9, citing Denham v.
New Carlisle, 86 Ohio St.3d 594, 596, 716 N.E.2d 184 (1999), citing Chef Italiano
v. Kent State University, 44 Ohio St.3d 86, 88, 541 N.E.2d 64 (1989). The order
must satisfy at least one of the “categories of final order set forth in R.C.
2505.02.” Noble v. Colwell, 44 Ohio St.3d 92, 96, 540 N.E.2d 1381, citing
General Electric Supply Co. v. Warden Electric, Inc., 38 Ohio St.3d 378, 528
N.E.2d 195 (1988), syllabus.
{¶18} In pertinent part, R.C. 2505.02(B)(1) provides that an order is final if
it “ ‘affects a substantial right in an action that in effect determines the action and
prevents a judgment[.]’ ” Dill at ¶ 6. “ ‘A “substantial right” for purposes of R.C.
2505.02 is a legal right enforced and protected by law.’ ” Mayberry v. Chevalier,
2018-Ohio-781, 106 N.E.3d 89, ¶ 12 (4th Dist.), quoting State ex rel. White v.
Cuyahoga Metro. Hous. Auth., 79 Ohio St.3d 543, 545, 684 N.E.2d 72 (1997),
citing State ex rel. Hughes v. Celeste, 67 Ohio St.3d 429, 430, 619 N.E.2d 412(1993), and Colwell at 92. “For an order to ‘determine an action and prevent a
judgment,’ it ‘must dispose of the whole merits of the cause or some separate
and distinct branch thereof and leave nothing for the determination of the court.’ ”
McCann at ¶ 10, quoting Turner & Son Funeral Home v. Hillsboro, 2015-Ohio-
1138, at ¶ 10, citing Hamilton Cty. Bd. of Mental Retardation & Dev.
Scioto App. No. 21CA3970 10
Disabilities, 46 Ohio St.3d 147, 153, 545 N.E.2d 1260 (1989).
{¶19} “[I]f the case involves multiple parties or multiple claims, the court's
order must [also] meet the requirements of Civ.R.54(B) to qualify as a final,
appealable order.” (Brackets sic.) McCann at ¶ 11, citing Chef Italiano at ¶ 88.
Civ.R. 54(B) states: “When more than one claim for relief is presented in an
action * * * the court may enter final judgment as to one or more but fewer than
all of the claims or parties only upon an express determination that there is no
just reason for delay.” However, it is important to note that “the mere incantation
of the required language does not turn an otherwise non-final order into a final
appealable order.” Colwell at 96, citing Cooper v. Cooper, 14 Ohio App.3d 327,
471 N.E.2d 525 (8th Dist.1984); Douthitt v. Garrison, 3 Ohio App. 3d 254, 444
N.E.2d 1068 (9th Dist.1981); R & H Trucking, Inc. v. Occidental Fire & Cas. Co, 2
Ohio App.3d 269, 441 N.E.2d 816 (10th Dist.1981). See also Milton Banking Co.
v. Adkins, 4th Dist. Jackson No. 19CA07, 2020-Ohio-1481, ¶ 14.
{¶20} Kerns’ complaint included a general negligence claim. However, in
his memo contra to Hale’s motion for summary judgment, Kerns specifically
alleged that Hale violated his duty to keep an ACDA in the road in violation of
R.C. 4511.21 when he struck Kerns. The trial court found that there was no
genuine issue of material fact that Hale was negligent under R.C. 4511.48(A)and
(E), which addresses certain rights and obligations regarding vehicles and
pedestrians.
Scioto App. No. 21CA3970 11
{¶21} However, as discussed supra, Kerns properly raised an ACDA
claim. ACDA “is codified at R.C. 4511.21(A)[.]” Corfee v. Swarthout, 7th Dist.
Columbia No. 99 CO 55, 2001-Ohio-3424, * 2. It 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.
Originally established by the Supreme Court of Ohio, courts apply the following
test, which if answered affirmatively in its entirety means the driver violated the
ACDA: the driver’s vehicle collided with an object that (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.
Covington v. Butcher, 2021-Ohio-1596, 171 N.E.3d 488, ¶ 19 (10th Dist.), citing
Pond v. Leslein, 72 Ohio St.3d 50, 52, 647 N.E.2d 477 (1995).
{¶22} The trial court’s summary judgment does not mention or discuss the
ACDA, R.C. 4511.21(A), or mention any case addressing ACDA in granting Hale
summary judgment. Therefore, we find that the trial court’s summary judgment
did not resolve Kerns’ claim that Hale violated ACDA. Accordingly, we find that
although the trial court’s summary judgment does affect the parties’ substantial
rights, it does not determine the action or prevent a judgment because Kerns’
ACDA claim remains unresolved. See R.C. 2505.02(B)(1). Therefore, the trial
court’s summary judgment is not a final appealable order under R.C.
Scioto App. No. 21CA3970 12
2505.02(B)(1), making the trial court’s inclusion of the Civ.R. 54(B) language in
the summary judgment a non-sequitur in our analysis.
CONCLUSION
{¶23} Because the trial court’s summary judgment is not a final appealable
order, this court lacks jurisdiction to consider Kerns’ appeal. Accordingly, we
dismiss his appeal for lack of jurisdiction.
APPEAL DISMISSED.
Scioto App. No. 21CA3970 13
JUDGMENT ENTRY
It is ordered that Kerns’ appeal is DISMISSED and appellant shall pay the
costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the
Scioto County Common Pleas Court to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the
date of this entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
Abele, J. and Hess, J.: Concur in Judgment and Opinion.
For the Court,
BY: ____________________________
Kristy S. Wilkin, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from the
date of filing with the clerk.