Morris v. Ohio Dept. of Transp. , 2022 Ohio 1594 ( 2022 )

[Cite as Morris v. Ohio Dept. of Transp., 2022-Ohio-1594.]
MARTHA MORRIS Case No. 2018-00991JD
Plaintiff Magistrate Holly True Shaver
v. DECISION OF THE MAGISTRATE
OHIO DEPARTMENT OF
TRANSPORTATION
Defendant
{¶1} Plaintiff brought this action alleging negligence. The issues of liability and
damages were bifurcated, and the case proceeded to trial on the issue of liability. The
matter has been fully briefed. Defendant’s August 17, 2021 motion to strike plaintiff’s
post-trial briefs for failure to comply with the page limitation in L.C.C.R. 4(E) is DENIED.
Plaintiff’s August 18, 2021 motion to exceed the page limitation is GRANTED, instanter.
I. Factual Background
{¶2} On July 10, 2016, plaintiff, Martha Morris, and her companion, Paul Tracy
Fortner, were riding their motorcycles northbound on Cumberland Road south of the
intersection of Cumberland Road and Camay Road in Carroll County, Ohio. Cumberland
Road, also known as SR 212, is a two-lane, rural highway. The posted speed limit is 55
miles per hour (mph). Camay Road intersects Cumberland Road from the east. A stop
sign controls the traffic on Camay Road entering Cumberland Road. On the west side of
Cumberland Road, across from Camay Road is an area that can be described as either
an expanded shoulder or a “pull-off.” Cumberland Road has white, solid edge lines on
both the east and west sides of the roadway. The east edge line is interrupted where
Camay Road intersects Cumberland Road. The west edge line continues on Cumberland
Road adjacent to the pull-off.
{¶3} During their motorcycle ride, another motorist was ahead of both Fortner and
plaintiff, driving a 1985 Dodge Ram truck at a slow rate of speed. Fortner and plaintiff
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followed the truck, which they estimated was traveling approximately 30-35 mph, when
the center line of Cumberland Road was striped with a double yellow line. However, when
the pavement marking changed to a dashed yellow line for northbound traffic, Fortner,
who was traveling ahead of plaintiff, drove left of the center line and successfully passed
the truck. Shortly after Fortner passed the truck, plaintiff attempted to pass the truck by
traveling left of the dashed center line. However, when plaintiff attempted to pass the
truck, the driver of the truck suddenly turned left to access the pull-off. At that time,
plaintiff was unable to avoid the truck, and her motorcycle struck the driver’s side door of
the truck. The impact with the truck caused plaintiff to be ejected from her motorcycle.
Plaintiff landed on the hood of the truck and was dragged underneath the truck, sustaining
serious injuries.
{¶4} The pavement markings where plaintiff initiated her passing maneuver
included a dashed yellow center line for northbound traffic, and a solid yellow center line
for southbound traffic. Although the area of impact was located within 100 feet of the
intersection of Camay and Cumberland Roads, a single, dashed yellow center line
continued through the intersection, while the solid yellow line for southbound traffic did
not continue through the intersection.
{¶5} Plaintiff alleges that defendant, Ohio Department of Transportation (ODOT),
was negligent in both its maintenance of the roadway and the signage and striping that
was in place at the time of the accident. Plaintiff argues that defendant breached its duty
of ordinary care when it striped the intersection with a dashed yellow center line to permit
passing when passing is prohibited by statute within 100 feet of an intersection; that the
white edge line on the west side of Cumberland Road should not have continued through
the intersection; that the length of the passing zone violated mandatory requirements as
set forth in the Ohio Manual of Uniform Traffic Control Devices (OMUTCD or Manual1);
1 All references throughout this decision shall be to the 2012 Ohio Manual of Uniform Traffic Control
Devices.
Case No. 2018-00991JD -3- DECISION
and, that there was a lack of both visual cues and signage to warn motorists of an
intersection. Plaintiff contends that defendant’s negligence was a proximate cause of the
collision because plaintiff would not have initiated a passing maneuver if she had been
alerted that she was approaching an intersection.
II. Summary of Testimony
{¶6} Paul Tracy Fortner testified that plaintiff was his “common law wife,” in that
they had been together for 13 years. Fortner stated that he and plaintiff were enjoying a
mid-day bike ride, exploring potential places to relocate his recreational vehicle to be
closer to his worksite. He described the ride as leisurely, and stated that the collision
occurred on a Sunday afternoon around 3:00 p.m.
{¶7} According to Fortner, an old truck was in front of them, traveling approximately
30 mph in a 55-mph zone. Fortner and plaintiff followed the truck for a while because
they were not in a passing zone. Fortner stated that the double center line changed to a
broken line for his lane of traffic to pass. Fortner checked for traffic behind him, to be
aware of his surroundings. Before he passed, he looked in his rearview mirror and then
in front of him. No traffic was coming, and Fortner had a “long stretch of clarity.” Fortner
activated his turn signal, passed the truck, and returned to the right lane. Fortner testified
that when he passed the truck, he noticed that the driver’s side mirror had no mirror in it.
Once Fortner returned to his lane of travel, plaintiff was still behind the truck. According
to Fortner, he saw plaintiff signal to pass, and suddenly, he saw the truck driver make a
left turn in front of plaintiff, and she was catapulted into the air, landed on top of the hood
of the truck, slid underneath the truck, and the truck slid on top of her. Fortner stated that
he did not see the truck activate a turn signal.
{¶8} On cross-examination, Fortner explained that he has known plaintiff since
2008, and it was his understanding that once you live with someone for three years, you
are considered a common law spouse. Fortner described the weather as a beautiful day
for a bike ride: pavement was dry; weather was nice and warm with clear skies. Fortner
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did not have a map or a GPS system with him, and he and plaintiff did not have a
communication system between them on their motorcycles. Fortner described the ride
as having a low volume of traffic. Fortner stated that the truck was driving slowly, that it
was in poor shape, and that it was “smoking.” Fortner stated that they had been following
the truck for a fair distance, and that he did not know whether the driver was having
difficulty, but he wanted to pass the truck as soon as he could to avoid it. Fortner passed
the truck before they reached the Camay Road intersection. Fortner did not honk his
horn before passing the truck. Fortner did not know whether the truck’s turn signal was
operational. Neither Fortner nor plaintiff were wearing helmets.
{¶9} Plaintiff, Martha Morris, testified that she had been riding motorcycles for two
and a half years before the accident. She described herself as being very cautious and
aware of her surroundings. Plaintiff stated that she did not have a motorcycle
endorsement on her Ohio driver’s license, but she had her permit book and was intending
on getting the endorsement.
{¶10} Plaintiff described the accident as follows. When Fortner activated his turn
signal to pass the truck, she activated hers. She looked to see if it was clear, and she
began to pass the truck. Plaintiff never saw whether the truck had its turn signal on, and
she did not observe any break lights from the truck. When she was almost parallel with
the driver’s door of the truck, the truck suddenly turned left. Plaintiff stood up on her
“pegs,” “laid on the horn,” and that is all she remembers. Plaintiff was adamant that the
truck driver did not activate his turn signal. Plaintiff testified that in the area where the
accident occurred, there was a broken yellow line for her lane of travel, and a solid white
edge line on the west side of Cumberland Road. No signs were posted warning of the
intersection ahead or stating that it was a no-passing zone. Plaintiff believed she was in
a legal passing zone because of the broken yellow line and the solid edge line on the
west side of the road, although she did see the pull-off. Plaintiff explained that she feels
Case No. 2018-00991JD -5- DECISION
she did nothing wrong because she was in a legal passing zone, and she did not see the
truck use a turn signal.
{¶11} On cross-examination, plaintiff testified that she was in the process of
obtaining a motorcycle endorsement but that she rode that day without one; that she was
not aware of the intersection; that she did not honk her horn until she realized the truck
was turning in front of her; and that the truck was dilapidated and there was smoke coming
from its exhaust pipe. On re-direct, plaintiff testified that she had never been on that
roadway before, and she would not have attempted to pass the truck if the road had not
been striped as a passing zone. On re-cross, plaintiff stated that in her opinion, the driver
of the truck was at fault for not having break lights or a turn signal activated. Plaintiff
stated that she would not have attempted to pass the truck if the driver had activated his
turn signal. Plaintiff also stated that she relied on the pavement markings when she
decided to pass the truck.
{¶12} Jeffrey Solomon testified that he was the deputy sheriff who investigated the
accident. Solomon completed the accident report (Defendant’s Ex. A) and took photos
and witness statements. Solomon spoke to the driver and passenger of the truck and
asked them to fill out statements. When Solomon observed the truck, he testified that the
turn signal was on. Solomon testified that a photo taken at the accident scene shows the
turn signal was illuminated. (Defendant’s Ex. D-1.) Solomon testified that he did not issue
a citation to plaintiff because she was life-flighted to the hospital. Solomon stated that he
could have cited plaintiff for not having a motorcycle endorsement, violation of assured
clear distance, or failure to control. However, he also stated that he doubted he would
have cited her for improper passing because she was in a passing zone. Solomon stated
that it is illegal to pass within 100 feet of an intersection.
{¶13} On cross-examination, Solomon stated that he does not know when the truck
driver activated his turn signal, and that it could have been activated after the accident.
Solomon stated that he has no evidence to refute plaintiff’s testimony that the truck made
Case No. 2018-00991JD -6- DECISION
an abrupt left turn. Solomon stated that he does not have proof of either side’s story; he
just observed skid marks and debris from the crash. Solomon testified that the state had
striped the area as a passing zone, and that the state also prohibits passing in an
intersection. He added that whether the state striped it wrong or not, there is a revised
code section prohibiting passing within 100 feet of an intersection. Solomon stated that
plaintiff was not approved to operate a motorcycle because she lacked an endorsement
on her driver’s license. He described the area on the west side of Cumberland Road as
a gravel pull-off. He testified that it was not a driveway, and that gravel pull-offs are
located all around Carroll County.
III. Summary of Expert Testimony
{¶14} The magistrate notes that both sides presented expert testimony. However,
the circumstances in this case were a little unusual. Between the time of the court’s
decision on summary judgment and trial, plaintiff’s expert, Patrick Altvater, retired. At
trial, plaintiff presented the expert testimony of Gordon Meth, P.E., who was employed by
the same firm as Altvater. Meth testified that he had access to Altvater’s materials and
used them when drafting his expert report in this case. Defendant’s expert witness, Keith
Bergman, relied on the deposition testimony of defendant’s former expert witness, Duane
Soisson, P.E., an employee of ODOT, to reach his opinions in this matter. The
depositions of both Soisson and Altvater were previously filed in this matter. Both Altvater
and Soisson conducted site visits of the roadway. However, neither Meth nor Bergman
conducted a site visit themselves.
{¶15} Plaintiff’s expert, Gordon Meth, P.E., has a master’s degree in civil
engineering and has worked in the field of traffic engineering for almost 30 years. Meth
is licensed in many states, including Ohio. Meth reviewed Altvater’s investigative reports
and rebuttal reports, the deposition testimony of Soisson, and affidavits from Altvater,
plaintiffs, and Solomon. Meth concurred with Altvater’s opinions in this matter and offered
Case No. 2018-00991JD -7- DECISION
additional opinions as well, which are included in his expert report. (Plaintiff’s Ex. 13.)
Meth stated that the 2012 version of the OMUTCD is the one in effect in this case.
{¶16} Meth testified that ODOT District 11 hired a company called MasterMind
Systems, Inc., to review the roads, including Cumberland Road, and determine where no-
passing zones should be marked. Meth testified that MasterMind created logs of start
and end mile markers to the nearest thousandth of a mile of locations where there was
insufficient visibility to oncoming traffic. Meth stated that MasterMind placed solid yellow
pavement markings to designate the no-passing zones because of a lack of adequate
passing sight distance. Meth stated that the determination of no-passing zones does not
necessarily mean that all other areas are appropriate for passing. Meth stated that
engineering judgment must be used to determine an appropriate passing zone.
A. Dashed Center Line
{¶17} Meth reviewed the plans for ODOT Project CAR 212 0.00, Project ID 85107,
dated October 5, 2012 (project). Meth testified that the project, which he described as an
asphalt overlay project, was constructed in 2013. According to Meth, the striping was
supposed to be placed as it had been prior to the project, but afterwards, there were
changes to the passing zone. Specifically, before the project, no center line appeared on
Cumberland Road where Camay Road intersected it. However, after the project, a
broken yellow center line was striped through the intersection. Meth testified that
Plaintiff’s Exhibits 2 and 3 depict the striping in the intersection prior to and after the
project. In Plaintiff’s Exhibit 2, a Google street view photo of the area taken in October
2012, no center line appears on Cumberland Road at the intersection with Camay Road.
In Plaintiff’s Exhibit 3, another Google street view from October 2015, a broken yellow
center line continues through the intersection. In both photos, a solid white edge line is
present on the west side of Cumberland Road.
{¶18} Meth referred to the broken yellow center line as a dashed yellow or “skip”
line. Meth criticized the skip lines through the intersection and stated that they violated
Case No. 2018-00991JD -8- DECISION
the Manual. Meth testified that Figure 3B-13 D—“Typical dotted line markings to extend
center line and lane line markings into the intersection,” has the following note: “Lane line
extensions in the intersection may be dotted or solid white lines. Center line extensions
in the intersection shall be dotted yellow lines.” (Emphasis added.) (Plaintiff’s Ex. 7;
Manual, p. 419.) Meth stated that the language in the note is mandatory, and it supports
his contention that it is not permissible to stripe center lines through intersections. Meth
stated that a skip line through the intersection is a signal to the traveling public that
passing is permitted in that area, even though R.C. 4511.30 prohibits passing within 100
feet of an intersection. Meth stated that it is reasonable for the traveling public to rely on
center line markings to know whether it is permissible to pass. Meth also referred to a
construction plan drawing of an intersection with a similar design to the one at issue in
this case. (Plaintiff’s Ex. 8.) Meth testified that this drawing shows that no center lines
are depicted through the intersection. Meth stated that this drawing is evidence that
center lines are typically not striped through intersections, just as the photos of the
intersection prior to the project show.
B. Intersection Definition and Edge Line Criticism
{¶19} Meth cited Manual, Section 1A.13(98) for the definition of “intersection.”
The Manual states, in relevant part:
“Intersection – ‘means:
(1) The area embraced within the prolongation or connection of the lateral curb
lines, or, if none, the lateral boundary lines of the roadways of two highways
that join one another at, or approximately at, right angles, or the area within
which vehicles traveling upon different highways that join at any other angle
might come into conflict. The junction of an alley or driveway with a roadway
or highway does not constitute an intersection unless the roadway or highway
at the junction is controlled by a traffic control device.’”
Case No. 2018-00991JD -9- DECISION
{¶20} Meth stated that Plaintiff’s Ex. 6 depicts his opinion on what the intersection
encompassed. Meth included part of the pull-off in his depiction of the intersection. Meth
testified that the pull-off was not a driveway, so the second sentence in the Manual’s
definition of intersection does not apply.
{¶21} Meth also criticized the white edge line on the west side of Cumberland
Road. Meth cited Manual Section 3B.08, paragraph 6, which states, in part: “Standard:
Solid lines shall not be used to extend edge lines into or through intersections or major
driveways.” (Manual, p. 417.) Meth opined that the white edge line on the west side of
Cumberland Road extended through the intersection, and, as such, violated a mandatory
provision of the Manual. On cross-examination, Meth conceded that nothing prevents a
motorist from crossing a white edge line, and that crossing a white edge line is not a
violation of any traffic control device.
C. Length of Passing Zone
{¶22} The other change in pavement markings after the project was that the
passing zone for northbound traffic was extended an additional 80 feet to the south on
Cumberland Road. The difference in the passing zone before and after the project is
shown in Figures 4 and 5 of Meth’s report. (Plaintiff’s Ex. 13, p. 6; See also, Plaintiff’s
Ex. 4, 5.) Meth testified that the length of the passing zone before the project was 685
feet, but after the project, it was 765 feet. Meth referred to Plaintiff’s Ex. 9 to show his
calculations of the measurements of the passing zones in advance of the intersection.
Meth stated that a passing zone must be a minimum of 900 feet in length for a roadway
with a 55-mph speed limit. (Table 3B-1. Minimum Passing Sight Distances for No-
Passing Zone Markings, Manual, p. 396.) Meth opined that the passing zone at the time
of the accident was 765 feet, which did not meet the requirements of the Manual.
D. Intersection Warning Signs
{¶23} Meth reviewed the ODOT Pathweb video logs of the area that were taken on
August 9, 2016, a month after the accident, to determine how far in advance of the
Case No. 2018-00991JD -10- DECISION
intersection a reasonable motorist would detect the presence of the intersection. Meth
also relied on Altvater’s report to conclude that the intersection was not detectable by
northbound motorists until a motorist was approximately 200 feet in advance of the
intersection. Meth stated that looking at the Pathweb videos, a triangular sign, vegetation,
and a telephone pole along the right side of Cumberland Road obscure a motorist’s view
of the stop sign on Camay Road, which would signal an intersection ahead. Meth also
stated that Camay Road intersects Cumberland Road from a lower elevation, which would
make it difficult to detect from a distance. Meth referred to the photograph in Plaintiff’s
Ex. 10 to show the lower elevation of Camay Road. Meth stated that based upon the
Pathweb videos, there are not enough visual cues for a motorist to detect the presence
of an intersection until the motorist is 200 feet away from Camay Road. Meth further
testified that a motorist needs 495 feet to stop if another motorist suddenly appears in an
intersection, and since the intersection was not detectable prior to 200 feet, there was not
sufficient stopping sight distance in advance of the intersection. Meth opined that signage,
either warning of an intersection ahead, or a sign that stated “no-passing” was warranted.
{¶24} Meth conceded that intersection warning signs were not mandatory pursuant
to the Manual. However, Meth testified that in this instance, an intersection warning sign
was warranted because advance visibility of the intersection was not present. Meth
stated that an intersection ahead warning sign, or a no-passing warning sign was justified
and would have prevented the accident. Meth did not dispute that plaintiff violated R.C.
4511.30 by passing in an intersection. Meth stated that the accident history in this area
is not relevant because it is such a low volume roadway.
{¶25} Defendant’s Expert, Keith Bergman, is a licensed civil engineer in 13 states,
including Ohio. Bergman wrote a report with his opinions in this case. (Defendant’s
Ex. E.) Bergman testified that Plaintiff’s Ex. 8, the sketch of a T-intersection2 of
2 Although at trial, reference was made to a T-intersection, the Manual would describe this as a
“side-road intersection,” with a more accurate depiction shown in intersection warning signs W2-2 or W2-
Case No. 2018-00991JD -11- DECISION
Cumberland and Amsterdam Roads was not similar to the intersection at issue because
of the traffic loads. Bergman testified that Amsterdam Road is a state highway and a
major collector. Bergman stated that the traffic volume for the roadway shown in Plaintiff’s
Ex. 8 was four times the traffic volume for the intersection in this case. Bergman stated
that the striping as depicted in Plaintiff’s Ex. 8 is not what was required at the intersection.
Bergman cited Section 3B.08 of the Manual, which requires that “pavement markings
extended into or continued through an intersection or interchange area shall be the same
color and at least the same width as the line markings they extend.” (Manual, p. 417.)
Bergman noted that the skip lines through the intersection complied with Section 3B.08
of the Manual. Bergman testified that nothing in the Manual prohibits skip lines through
an intersection. Bergman also testified that the examples of line extensions through
intersections found in Plaintiff’s Ex. 7 do not apply to this intersection. (Manual, p. 418-
419.) Specifically, Bergman stated that the examples in Plaintiff’s Exhibit 7 are for turning
movements in multi-lane roadways, a configuration which was not present at the location
of this accident. Therefore, Bergman opined that the mandatory language in the note on
Figure 3B-13, Example D, which states that center line extensions in the intersection shall
be dotted yellow lines does not apply in this instance.
{¶26} Bergman testified that the area in question was a 3-way or a T-intersection,
not a 4-legged intersection. Bergman opined that the continuous white edge line on the
west side of Cumberland Road met the standard of care and was appropriately placed.
Bergman relied on the language in the Manual that defines intersections and describes
edge lines and their purpose. (See, Manual, Section 1A.13, 98(1), p. 17; Section 3B.06,
p. 416.) Bergman testified that the edge line on the east side of Cumberland Road, where
Camay Road intersects it, stops appropriately at the intersection because Camay Road
intersects Cumberland Road in that area. However, Bergman stated that the pull-off on
3, as opposed to the T-intersection depicted in W2-4. (See, Manual, Section 2C.46, Intersection Warning
Signs, p. 146-147.)
Case No. 2018-00991JD -12- DECISION
the west side of Cumberland Road is not a road, and, at best, is a minimum use driveway
with minimal traffic flow. According to the Manual, the junction of an alley or driveway
with a roadway or highway does not constitute an intersection unless the roadway or
highway at the junction is controlled by a traffic control device. (Manual, Section 1A.13,
98(1), p. 17.) Since there is no road or major driveway on the west side of Cumberland
Road, and the junction of the pull-off and Cumberland Road is not controlled by a traffic
control device, Bergman stated that the pull-off adjacent to Cumberland Road is not
included in the definition of an intersection. Thus, the west edge line does not extend into
or through the intersection, and the pull-off is not a major driveway, so there is no violation
of Section 3B.08 of the Manual. Bergman disagreed with Meth’s depiction of the
intersection including a portion of the pull-off as shown in Plaintiff’s Ex. 6.
{¶27} Bergman explained that he viewed a report from MasterMind Systems,
ODOT’s Pathweb physical features video log, and Google Street View and Google Earth
images. Bergman stated that in an area with a 55-mph speed limit, 900 feet of passing
sight distance is required. (See, Table 3B-1. Minimum Passing Sight Distances for No-
Passing Zone Markings, Manual, p. 396.) In contrast to Meth’s calculations as shown in
Plaintiff’s Ex. 9, Bergman testified that the total length of the passing zone for northbound
traffic was approximately 1200 feet, comprising of 900 feet south of Camay Road, as well
as 300 feet north of Camay Road. On cross-examination, Bergman conceded that the
1200-foot length of the passing zone included the area surrounding the intersection, even
though it is prohibited by statute to pass within 100 feet of an intersection. Bergman
stated that there is no requirement in the Manual that intersections be marked as no-
passing zones. (See Section 3B.02, paragraph 5, Manual, p. 398, “There is explicitly no
requirement under this Manual that no-passing zones shall be marked at intersections,
notwithstanding the provisions of any other section of this Manual.”)
{¶28} Bergman explained that passing sight distance is different from the minimum
length of a passing zone. Bergman stated that passing sight distance is the distance
Case No. 2018-00991JD -13- DECISION
ahead of a motorist that must be clear so that a motorist can make a passing maneuver.
Bergman agreed that the passing sight distance for a 55-mph zone is 900 feet, and that
there was adequate passing sight distance on Cumberland Road. Bergman testified that
passing with care was permitted for approximately 900 feet in advance of the intersection,
and that the northbound passing zone met the sight distance requirements of the Manual.
According to Bergman, the minimum length of a passing zone for an area with a speed
limit of 50 mph or more is 600 feet. Bergman cited Manual section 3B.02, paragraph 10
for this requirement.3 Bergman testified that the language he relied on must be
supplemented by the errata sheet for the Manual due to a typographical error. According
to Bergman, the Manual states that no-passing zones should not be less than 500 feet,
and that the distance between successive no-passing zones should be no less than 600
feet. Bergman opined the 765 foot long passing zone as shown in Meth’s calculations
complied with the 600-foot minimum requirement as set forth in the Manual.
{¶29} Bergman testified that there was no requirement in the Manual to place
advance warning signs, such as “intersection ahead,” in this location. Bergman noted
that the language in the Manual about advance warning signs is permissive, not
mandatory. Finally, Bergman opined that the driving actions of plaintiff were the
3 Section 3B.02 of the Manual, paragraphs 9-10, under “Guidance” states: “The decision as to
whether or not a no-passing zone should be marked at intersections is a matter of engineering judgment.
When used, the no-passing zone should start at least 100 feet in advance of the intersection.
The no-passing zone marking should not be less than 500 feet in length, except in advance of an
intersection, or as a result of a special engineering study. If the actual no-passing zone distance is less
than 500 feet, an additional length of marking should be added at the beginning of the zone. The distance
between successive no-passing zones should be no more than 400 feet for speeds less than 50 mph and
no more than 600 feet for speeds 50 mph or greater. When the distances are less than these, the single
or double no-passing lines should be extended to connect the zones.” (Manual, p. 398. Note that as of
October 18, 2013, this section appeared in the “Known Errors in the 2012 OMUTCD, updated January 21,
2022”, p. 5: “Section 3B.02 (page 398) In Paragraph 10, the third sentence should be revised to: “The
distance between successive no-passing zones should be no less than 400 feet for speeds less than 50
mph and no less than 600 feet for speeds 50 mph or greater.”) The court notes that reading the original
language in the Manual, italicized above, it is apparent that it was a typographical error to use the word
“more” instead of “less,” because the sentence directly after that language uses the word “less,” and using
the word “more” would not make sense.
Case No. 2018-00991JD -14- DECISION
proximate cause of the accident. Bergman opined that ODOT’s actions or omissions
were not the proximate cause of the accident.
IV. Law and Analysis
{¶30} In order for plaintiff to prevail on her claim of negligence, she must prove by
a preponderance of the evidence that defendant owed her a duty, that it breached that
duty, and that the breach proximately caused her injuries. Strother v. Hutchinson, 67
Ohio St.2d 282, 285, 423 N.E.2d 467 (1981). Defendant has a general duty to maintain
its highways in a reasonably safe condition. Knickel v. Ohio Dept. of Transp., 49 Ohio
App.2d 335, 361 N.E.2d 486 (10th Dist.1976). However, defendant is not an insurer of
the safety of its highways. Rhodus v. Ohio Dept. of Transp., 67 Ohio App.3d 723, 588
N.E.2d 864 (10th Dist.1990).
{¶31} ODOT may be held liable for damages for accidents that are proximately
caused by its failure to conform to the requirements of the OMUTCD. Pierce v. Ohio
Dept. of Transp., 23 Ohio App.3d 124, 491 N.E.2d 729 (10th Dist.1985); see also
Lumbermens Mut. Cas. Co. v. Ohio Dept. of Transp., 49 Ohio App. 3d 129, 551 N.E.2d
215 (10th Dist.1988). Not all portions of the manual are mandatory, and, therefore, some
areas are within the discretion and engineering judgment of ODOT. Perkins v. Ohio Dept.
of Transp., 65 Ohio App.3d 487, 495, 584 N.E.2d 794 (10th Dist.1989); Cunningham v.
Ohio Dept. of Transp., 10th Dist. Franklin No. 08AP-330, 2008-Ohio-6911, ¶ 24. Only the
OMUTCD’s mandatory requirements, normally using the word “shall,” impose a duty on
ODOT. Provisions which use the words “should” or “may” are not mandatory. The 2012
edition of the Manual uses the term “Standard” for its mandatory requirements. (See,
Manual, Section 1A.13, p.12.) “The issue of whether an act constitutes a mandatory duty
or a discretionary act determines the scope of the state’s liability because ODOT is
immune from liability for damages resulting from not performing a discretionary act.”
Gregory v. Ohio Dept. of Transp., 107 Ohio App.3d 30, 33-34, 667 N.E.2d 1009 (10th
Dist.1995), citing Winwood v. Dayton, 37 Ohio St.3d 282, 525 N.E.2d 808 (1988).
Case No. 2018-00991JD -15- DECISION
{¶32} Upon review of the testimony and evidence presented at trial, the magistrate
finds that plaintiff has proven that the center line striping and the length of the passing
zone on Cumberland Road changed after MasterMind completed the project. Therefore,
the question becomes whether any of those changes violated the Manual, and, ultimately,
whether any violation of the Manual proximately caused plaintiff’s injuries.
A. Dashed Center Line
{¶33} The court finds that the testimony of Bergman was more credible and
persuasive than the testimony of Meth regarding whether the skip lines through the
intersection violated the Manual. The Manual’s requirement, Section 3B.08, titled
“Extensions Through Intersections or Interchanges” states: “Standard: Except as
provided in Paragraph 2, pavement markings extended into or continued through an
intersection or interchange area shall be the same color and at least the same width as
the line markings they extend (see Figure 3B-13).” The yellow skip lines are the same
color and the same width as the center line south of the intersection. The court finds that
plaintiff has failed to prove that the skip lines through the intersection violated this
provision of the Manual.
{¶34} Plaintiff argues that defendant violated the mandatory language in the note
on Figure 3B-13(D), which states that center line extensions in the intersection shall be
dotted yellow lines. However, the court finds that the illustration depicts a multi-lane
intersection with dotted lines to direct motorists through a curve. That illustration does
not accurately depict the intersection at issue in this case. Moreover, the court notes that
the illustrations are examples for Manual Section 3B.08, Extensions Through
Intersections or Interchanges. The “guidance” language therein states: “Where highway
design or reduced visibility conditions make it desirable to provide control or to guide
vehicles through an intersection or interchange, such as at offset, skewed, complex, or
multi-legged intersections, on curved roadways, where multiple turn lanes are used, or
Case No. 2018-00991JD -16- DECISION
where offset left turn lanes might cause driver confusion, dotted line extension markings
consisting of 2-foot line segments and 2- to 6-foot gaps should be used to extend
longitudinal line markings through an intersection or interchange area.” The court finds
that this language explains the illustration depicted in Figure 3B-13(D). In an area where
there are multiple turn lanes, the dotted lane line and center line extensions guide
motorists through the turn. In the intersection in this case, plaintiff argues that the skip
lines are prohibited, but then argues that the center line, if intended to go through the
intersection, should have been a dotted yellow line. The magistrate finds this argument
without merit. The title of the Manual Section 3B.08, “Extensions Through Intersections
or Interchanges” shows that center lines and lane lines sometimes extend through
intersections. Plaintiff’s argument that the skip lines through an intersection are prohibited
is belied by the language in the Manual. Moreover, Manual Section 3B.08, paragraph 10
discusses the requirements for color and width of center lines that continue through an
intersection. This language clearly contemplates that center lines may continue through
intersections in certain cases. Plaintiff’s argument that the skip lines violate the Manual
is not persuasive. Furthermore, the court finds that whether skip lines or a dotted yellow
line were present through the intersection, that minor difference would not have been a
significant visual cue to alert plaintiff about the presence of the intersection. Finally, the
Manual states: “There is explicitly no requirement under this Manual that no-passing
zones shall be marked at intersections, notwithstanding the provisions of any other
section of this Manual.” (Manual, Section 3B.02, paragraph 5, p. 398.) In summary, the
magistrate finds that plaintiff has failed to prove, by a preponderance of the evidence, that
the presence of skip lines through the intersection violated any applicable mandatory
provision of the Manual.
B. Intersection Definition and Edge Line Criticism
{¶35} Turning to plaintiff’s argument about the west edge line, the magistrate finds
that the testimony of Bergman was more credible and persuasive than the testimony of
Case No. 2018-00991JD -17- DECISION
Meth on this issue. The purpose of edge lines is to guide a driver to know where the
border of the road is. (Manual Section 1A.13, paragraph 60; Manual Section 3B.06,
“Standard: If used, edge line pavement markings shall delineate the right or left edges of
a roadway.”) The magistrate finds that Meth’s depiction of the intersection in this case
includes part of the pull-off, in an effort to support plaintiff’s argument that the west edge
line continued through the intersection. However, upon review of the Manual’s definition
of the word, “intersection,” the magistrate concludes that Meth’s inclusion of part of the
pull-off is erroneous. The pull-off was not within the area embraced within the
prolongation or connection of the lateral boundary lines of the roadways of Cumberland
and Camay Roads, nor was it in the area within which vehicles traveling upon either
Cumberland or Camay Road might come into conflict. (Manual, Section 1A.13(98)(1).)
Camay Road does not continue west of Cumberland Road; thus, there is no other road
that intersects on the west side of Cumberland Road. Moreover, the pull-off was not an
alley, and both experts agreed it was not a driveway. However, even assuming for
purposes of argument that the pull-off were a driveway, minor or major, the pull-off was
not controlled by a traffic control device at the junction of the pull-off and Cumberland
Road. Therefore, although the magistrate finds that the junction of Camay Road, which
was controlled by a stop sign, and Cumberland Road constitutes an intersection by
definition, the magistrate further finds that the pull-off is not part of the intersection.
Therefore, plaintiff’s argument that the edge line on the west side of Cumberland Road
violated Manual Section 3B.06 by continuing through the intersection is without merit.
C. Length of Passing Zone
{¶36} The court notes that Table 3B-1 in Section 3B.02 of the Manual sets forth
the minimum passing sight distances for No-Passing Zone markings. In this case,
Cumberland Road was marked as 55-mph. In order to stripe the pavement to allow
passing, there must be a minimum of 900 feet of passing sight distance. However, the
table itself does not state that a passing zone must be at least 900 feet long. The table
Case No. 2018-00991JD -18- DECISION
describes the minimum passing sight distance for no-passing zone markings. The
following language contained in the Standard section of Section 3B.02 is instructive: “On
two-way, two- or three-lane roadways where center line markings are installed, no-
passing zones shall be established at vertical and horizontal curves and other locations
where an engineering study indicates that passing must be prohibited because of
inadequate sight distances or other special conditions. * * * There is explicitly no
requirement under this Manual that no-passing zones shall be marked at intersections,
notwithstanding the provisions of any other section of the Manual.” (Manual, p. 396, 398.)
{¶37} Bergman testified that Manual Section 3B.02, paragraph 10, refers to how
much space must be between successive no-passing zones. The Manual states, “The
distance between successive no-passing zones should be no less than 400 feet for
speeds less than 50 mph and no less than 600 feet for speeds 50 mph or greater. When
the distances are less than these, the single or double no-passing lines should be
extended to connect the zones.” (Manual, p. 398, supplemented by Known Errors in the
2012 OMUTCD, as of 10/18/13, p. 5.) Meth’s diagram in Plaintiff’s Ex. 9 shows that his
calculations for the passing zone for northbound traffic on Cumberland Road measured
765 feet, not including 100 feet in advance of the intersection and the intersection itself.
The magistrate finds that the Manual’s phrasing of “the distance between successive no-
passing zones,” while not explicitly using the term “passing zone,” means the minimum
length of a passing zone. The magistrate finds that Bergman’s testimony was more
credible and persuasive than Meth’s on this issue. Based upon Meth’s depiction in
Plaintiff’s Ex. 9, the magistrate finds that defendant did not violate the Manual’s 600-foot
minimum passing zone requirements by striping a passing zone that measured 765 feet
in advance of the intersection. Plaintiff’s argument that defendant was required to have
a minimum passing zone of 900 feet is not supported by the Manual.
D. Intersection Warning Signs
Case No. 2018-00991JD -19- DECISION
{¶38} The language in the Manual that pertains to intersection warning signs is
permissive, not mandatory. Even Meth testified that defendant did not violate any
mandatory language in the Manual by not placing intersection warning signs in advance
of the intersection. Although Meth testified that an intersection warning sign was justified,
the magistrate finds that the absence of a warning sign was discretionary, and that
defendant did not violate any mandatory language in the Manual by not posting an
intersection warning sign.
{¶39} Moreover, the magistrate does not find Meth’s testimony credible or
persuasive that the intersection was not discernable until a motorist was 200 feet south
of the intersection. Although Meth testified that the stop sign on Camay Road was not
visible until 200 feet south of the intersection, photographs of the area do not convince
the magistrate that the intersection of Camay Road was not discernable until being 200
feet in advance of the intersection. Meth testified that the stop sign on Camay Road was
obscured by foliage, a triangular sign, and a telephone pole. However, Cumberland Road
was a flat, open roadway, and the Google Street View image, taken October 2015, clearly
shows Camay Road intersecting from the east side. (Defendant’s Ex. E, p. 11.)
{¶40} In summary, the magistrate finds that plaintiff has failed to prove, by a
preponderance of the evidence, that defendant violated any mandatory provision of the
Manual. Therefore, plaintiff has failed to prove that defendant was negligent in this matter.
E. Proximate Cause
{¶41} However, even if defendant had acted negligently, the magistrate finds that
defendant’s negligence was not the proximate cause of plaintiff’s injuries. Defendant is
only “liable in damages if proximate causation is established.” Leskovac v. Ohio Dept. of
Transportation, 71 Ohio App.3d 22, at 27-28, 593 N.E.2d 9 (10th Dist.1990). “While
difficult to define, ‘proximate cause’ is generally established where an original act is
wrongful or negligent and, in a natural and continuous sequence, produces a result that
would not have taken place without the act. * * * Essentially, a plaintiff must present
Case No. 2018-00991JD -20- DECISION
evidence upon which a trier of fact may reasonably determine that it is more likely than
not that the negligence of a defendant was the direct or proximate cause of the plaintiff's
injury. * * * It is also well-settled that because the issue of proximate cause is not open to
speculation, conjecture as to whether the breach of duty caused the particular damage is
not sufficient as a matter of law. * * * Further, a plaintiff must establish proximate cause
by a preponderance of the evidence.” (Citations omitted.) Whiting v. Dept. of Mental
Health, 141 Ohio App.3d 198, 202-203, 740 N.E.2d 644 (10th Dist.2001). “The rule of
proximate cause ‘requires that the injury sustained shall be the natural and probable
consequence of the negligence alleged; that is, such consequence as under the
surrounding circumstances of the particular case might, and, should have been foreseen
or anticipated by the wrongdoer as likely to follow his negligent act.’” Zavinski v. Ohio
Dept. of Transp., 10th Dist. Franklin No. 18AP-299, 2019-Ohio-1735, ¶ 29, 135 N.E.3d
1170, quoting Jeffers v. Olexo, 43 Ohio St.3d 140, 143, 539 N.E.2d 614 (1989). Further,
the common law of Ohio imposes a duty of reasonable care upon motorists, which
includes the responsibility to observe the environment in which one is driving. Hubner v.
Sigall, 47 Ohio App.3d 15, 17, 546 N.E.2d 1337 (10th Dist.1988). The magistrate finds
that the proximate cause of the accident and plaintiff’s injuries was both drivers’ failure to
use ordinary care under the circumstances.
{¶42} Initially, the magistrate finds that plaintiff did not use ordinary care when she
initiated her passing maneuver. The magistrate finds that plaintiff crossed the center line
in a marked passing zone while attempting to pass a slow-moving truck. In addition to
the vehicle’s slow speed, the magistrate also finds that Fortner’s testimony was credible
that the truck was in poor condition, that the truck’s side mirror was missing, and that the
truck was “smoking.” Thus, in the magistrate’s opinion, the need to proceed cautiously
should have been apparent upon reasonable observation. Plaintiff admitted that she was
driving her motorcycle without an endorsement on her driver’s license, that she did not
honk her horn prior to attempting to pass the truck to alert the driver that she was about
Case No. 2018-00991JD -21- DECISION
to pass (as required by R.C. 4511.27), and that she passed the truck within 100 feet of
an intersection (which is prohibited by R.C. 4511.30(A)(3)). Unfortunately, the truck driver
turned left in front of plaintiff’s path, and she was unable to avoid striking the truck.
{¶43} In addition, considering the evidence, the magistrate finds that it was more
likely than not that the driver of the truck also failed to use ordinary care when he
attempted to turn. The driver of the truck operated it that day without a driver’s side mirror,
which would have potentially provided a view of plaintiff before she attempted her pass.
Further, though Solomon testified credibly that the truck’s turn signal was illuminated
when he arrived at the scene, he admitted that he did not witness the accident, so he
could not state with certainty whether the turn signal was activated prior to or after the
accident. On the other hand, plaintiff and Fortner both testified that the truck did not use
its turn signal. Nonetheless, the driver of the truck suddenly turned in front of plaintiff
when plaintiff attempted to pass and did so immediately after another motorcycle, driven
by Fortner, passed on the same side. The driver failed to look for and/or notice plaintiff
and either failed to signal or failed to signal soon enough to allow plaintiff to observe it
before she attempted to pass. The driver did so while attempting to turn off of a 55-mph
state route, not onto another road, but onto the shoulder of the state route on its opposite
side. The evidence firmly establishes the truck driver’s lack of ordinary care.
{¶44} The magistrate also finds that the presence of skip lines through the
intersection was not a proximate cause of the accident. Even in a passing zone, a
motorist is charged with the duty of reasonable care: the presence of a skip line does not
mean that a motorist can pass in every circumstance. Moreover, plaintiff testified that
she activated her turn signal at the same time as Fortner. Fortner testified that he
activated his turn signal at the earliest time that the center line changed to a passing zone.
Thus, plaintiff’s testimony that she relied on the presence of skip lines in the intersection
as a visual cue that she was permitted to pass is not credible or persuasive to the
magistrate.
Case No. 2018-00991JD -22- DECISION
{¶45} Furthermore, even assuming that plaintiff was unable to see the intersection
until she was 200 feet in front of it, she would have seen Camay Road at or near the same
time that she saw the skip lines through the intersection. Plaintiff’s testimony that she
relied on the visual cue of the skip lines but not on the visual cue of Camay Road itself is
not credible or persuasive. The magistrate also finds that the presence of the west edge
line was appropriate. Plaintiff’s reliance on the west edge line as a visual cue that there
was no intersection on the east side of Cumberland Road was not reasonable, as an edge
line’s purpose is to allow a motorist to observe the border of a roadway. Even Meth
agreed that there was nothing to prohibit the truck driver from crossing an edge line,
whether near the intersection or on any other part of Cumberland Road. The magistrate
finds that plaintiff has failed to prove that either the presence of skip lines through the
intersection or the presence of the edge line on the west side of Cumberland Road was
the direct or proximate cause of her injuries.
{¶46} The magistrate is cognizant that plaintiff sustained severe injuries in this
case and is not without sympathy for plaintiff. However, in the final analysis, the
magistrate finds that defendant was not negligent, and that the negligence of both plaintiff
and the truck driver in failing to operate their vehicles in a reasonable manner was the
sole proximate cause of plaintiff’s injuries. The pavement markings in place on the day
of the accident were not. For the foregoing reasons, the magistrate finds that plaintiff has
failed to prove any of her claims by a preponderance of the evidence and, accordingly,
judgment is recommended in favor of defendant.
{¶47} A party may file written objections to the magistrate’s decision within 14 days
of the filing of the decision, whether or not the court has adopted the decision during that
14-day period as permitted by Civ.R. 53(D)(4)(e)(i). If any party timely files objections,
any other party may also file objections not later than ten days after the first objections
are filed. A party shall not assign as error on appeal the court’s adoption of any factual
finding or legal conclusion, whether or not specifically designated as a finding of fact or
Case No. 2018-00991JD -23- DECISION
conclusion of law under Civ.R. 53(D)(3)(a)(ii), unless the party timely and specifically
objects to that factual finding or legal conclusion within 14 days of the filing of the decision,
as required by Civ.R. 53(D)(3)(b).
HOLLY TRUE SHAVER
Magistrate
Filed March 16, 2022
Sent to S.C. Reporter 5/12/22