[Cite as Smith v. Bond, 2016-Ohio-5883.]



                            STATE OF OHIO, BELMONT COUNTY
                                 IN THE COURT OF APPEALS
                                       SEVENTH DISTRICT

CHARLES E. SMITH, JR., ET AL.,                  )
                                                )
        PLAINTIFFS-APPELLANTS,                  )
V.                                              )            CASE NO. 15 BE 0078
                                                )
ROBERT E. BOND AND GARY L.                      )                   OPINION
DETEMPLE, CO-FIDUCIARIES OF THE                 )
ESTATE OF ROBERT E. BOND,                       )
DECEASED,                                       )
                                                )
        DEFENDANTS-APPELLEES.                   )

CHARACTER OF PROCEEDINGS:                       Civil Appeal from Court of Common
                                                Pleas of Belmont County, Ohio
                                                Case No. 12 CV 262

JUDGMENT:                                       Reversed and Remanded

APPEARANCES:
For Plaintiffs-Appellants                       Attorney Frank X. Duff
                                                The Maxwell Centre, 32 20th St.
                                                Wheeling, West Virginia 26003

For Defendant-Appellee                          Attorney Donald P. Wiley
                                                400 S. Main Street
                                                North Canton, Ohio 44720




JUDGES:

Hon. Gene Donofrio
Hon. Mary DeGenaro
Hon. Carol Ann Robb


                                                Dated: September 15, 2016
[Cite as Smith v. Bond, 2016-Ohio-5883.]
DONOFRIO, P.J.

        {¶1}    Plaintiffs-appellants, Charles and Emma Smith, appeal from a Belmont
County Common Pleas Court judgment granting summary judgment in favor of
defendants-appellees, Robert F. Bond and Gary DeTemple co-fiduciaries of the
Estate of Robert E. Bond, on appellants’ personal injury claim against Robert E.
Bond.
        {¶2}    On November 5, 2011, Charles Smith (Smith) was leaving DeFelice
Bros. Pizza on Central Avenue in Shadyside, for whom he worked, to deliver a pizza
with a co-worker. His car was parked on the other side of the street from the pizza
shop. As Smith crossed the street, a vehicle driven by Robert E. Bond (Bond) struck
him. A crosswalk existed at the corner but the paint was at least partially worn off.
Smith was not in the worn-off crosswalk when Bond struck him. Smith suffered
injuries as a result of the accident.
        {¶3}    Appellants filed a complaint against Bond raising claims for negligence
and loss of consortium.
        {¶4}    Bond filed a motion for summary judgment on July 15, 2013, asserting
there were no genuine issues of material fact that Smith crossed Central Avenue
outside of the marked crosswalk and failed to yield to Bond’s right-of-way. Therefore,
Bond claimed summary judgment was appropriate.                Appellants filed a response
arguing there was a genuine issue of material fact as to whether the crosswalk was
maintained for use in the area and, even if Bond had the right-of-way, it was forfeited
by his failure to proceed in a lawful manner.
        {¶5}    Bond passed away shortly after filing the motion for summary judgment.
On August 5, 2013, Bond’s counsel filed a suggestion of death informing the trial
court that on July 31, 2013, he received actual knowledge of Bond’s death.
Nonetheless, on August 29, 2013, the trial court granted Bond’s summary judgment
motion. The court did not mention the issue of Bond’s death. Appellants filed a
timely notice of appeal from the court’s summary judgment entry. None of the parties
filed a motion for substitution of parties prior to filing the appeal.
        {¶6}    Consequently, on appeal, this court found the trial court’s decision to
                                                                                -2-


rule on Bond’s summary judgment motion after the notice of Bond’s death raised a
jurisdictional problem. Smith v. Bond, 7th Dist. No. 13 BE 27, 2015-Ohio-2585. We
found that because a suggestion of Bond's death was filed while the motion for
summary judgment was pending, and because no substitution of parties was made,
the trial court could not rule on Bond's motion for summary judgment because it
lacked personal jurisdiction over Bond. Id. at ¶ 4. Therefore, we reversed the trial
court’s grant of summary judgment and remanded the case with instructions to allow
the parties, or Bond’s successors or representatives, to file a motion for substitution
under Civ.R. 25(A). Id. at ¶ 13. We further instructed that if a motion for substitution
was timely filed, the trial court was to again determine the merits of the case. Id.
       {¶7}   On our remand, appellants filed a motion for substitution of parties to
name appellees, the co-fiduciaries of Bond’s estate, as the defendants in this case.
The trial court granted the motion for substitution of parties.
       {¶8}   Appellees then filed a motion for summary judgment and appellants
filed a response. The trial court granted appellees’ motion for summary judgment. It
found there was no genuine issue of material fact that Smith did not have the right to
cross the street outside of the marked crosswalk.         It further found there was no
evidence that Bond failed to act with due care. Appellants filed a timely notice of
appeal on November 24, 2015.
       {¶9}   Appellants now raise a single assignment of error that states:

              THE TRIAL COURT ERRED IN ITS OPINION AND JUDGMENT
       ORDER DATED NOVEMBER 6, 2015, (EXHIBIT 1) GRANTING
       SUMMARY JUDGMENT TO DEFENDANT ROBERT E. BOND.

       {¶10} An appellate court reviews the granting of summary judgment de novo.
Comer v. Risko, 106 Ohio St. 3d 185, 2005-Ohio-4559, 833 N.E.2d 712, ¶ 8. Thus,
we shall apply the same test as the trial court in determining whether summary
judgment was proper.
       {¶11} A court may grant summary judgment only when (1) no genuine issue
                                                                                -3-


of material fact exists; (2) the moving party is entitled to judgment as a matter of law;
and (3) the evidence can only produce a finding that is contrary to the non-moving
party. Mercer v. Halmbacher, 9th Dist., 2015-Ohio-4167, 44 N.E.3d 1011, ¶ 8; Civ.R.
56(C). The initial burden is on the party moving for summary judgment to
demonstrate the absence of a genuine issue of material fact as to the essential
elements of the case with evidence of the type listed in Civ.R. 56(C). Dresher v. Burt,
75 Ohio St. 3d 280, 292, 662 N.E.2d 264 (1996).          If the moving party meets its
burden, the burden shifts to the non-moving party to set forth specific facts to show
that there is a genuine issue of material fact. Id.; Civ.R. 56(E). “Trial courts should
award summary judgment with caution, being careful to resolve doubts and construe
evidence in favor of the nonmoving party.” Welco Industries, Inc. v. Applied Cos., 67
Ohio St. 3d 344, 346, 617 N.E.2d 1129 (1993).
       {¶12} Appellants argue that any crosswalk that may have been painted on the
street was worn off. They refer us to copies of photographs of the crosswalk that
they attached to their response to the summary judgment motion and also to their
appellate brief. Appellants also point to Smith’s deposition testimony that the area
where the accident occurred is a business district and the crosswalk is not marked or
used. They note that there is no sidewalk from DeFelice Bros. Pizza adjacent to the
narrow, grassy median where someone could walk from a parked vehicle to the
alleged crosswalk. Appellants claim that anyone who parks in that area must either
cross the street without a crosswalk or walk on the road up to the area of the alleged
crosswalk.
       {¶13} Appellants also argue that Bond failed to use due care when
proceeding on Central Avenue. They point out that both Smith and Molly Roberts,
Smith’s co-worker, stated that they looked both ways before crossing the street and
did not see Bond’s vehicle. They point to Roberts’ statement that it looked like Bond
changed his mind and instead of turning he went straight and sped up, hitting Smith.
Appellants also point to the statement of witness Jeff Greenwood who stated that he
had to yield to Bond’s van, which started to make a left turn but suddenly turned back
                                                                               -4-


and accelerated. Appellants argue that if a driver suddenly changes direction and
accelerates while failing to see a pedestrian in his path, it creates a genuine issue of
material fact as to whether the driver exercised due caution.
       {¶14} In a negligence claim, the plaintiff must prove (1) duty, (2) breach of
duty, (3) causation, and (4) damages. Anderson v. St. Francis-St. George Hosp.,
Inc., 77 Ohio St. 3d 82, 84, 671 N.E.2d 225 (1996).         The question in this case
surrounds whether Bond owed a duty to Smith and whether he breached that duty.
       {¶15} R.C. 4511.48(A) provides, “[e]very pedestrian crossing a roadway at
any point other than within a marked crosswalk or within an unmarked crosswalk at
an intersection shall yield the right of way to all vehicles * * * upon the roadway.”
Nonetheless, “[t]his section does not relieve the operator of a vehicle* * * from
exercising due care to avoid colliding with any pedestrian upon any roadway.” R.C.
4511.48(E). Therefore, a driver must exercise due care to avoid colliding with a
pedestrian even if the pedestrian is in the driver's right way in violation of R.C.
4511.48(A). Neu v. Estate of Nussbaum, 12th Dist. No. CA2014-05-117, 2015-Ohio-
159, 27 N.E.3d 906, 911, ¶ 17.
       {¶16} “Generally, a motor vehicle has the right to proceed uninterruptedly in a
lawful manner in the direction in which it is traveling in preference to any vehicle or
pedestrian approaching from a different direction crossing its path.”         Zieger v.
Burchwell, 12th Dist. No. CA2009-11-077, 2010-Ohio-2174, ¶ 18, citing Higgins v.
Bennett, 12th Dist. No. CA99-08-022, 2000 WL 253672, *2; R.C. 4511.01(UU)(1).
When a pedestrian crosses a road at a point other than a marked crosswalk, the
pedestrian must yield to a vehicle traveling in a lawful manner. McQueen v. Perry,
10th Dist. No. 12AP-237, 2012-Ohio-5522, ¶ 11; R.C. 4511.48(A). A driver is not
required to look for pedestrians violating his right-of-way unless there is a reason to
expect it. Mull v. Madkins, 8th Dist. No. 94554, 2010-Ohio-6360, ¶ 18.
       {¶17} The Sixth District has explained how these seemingly conflicting
interpretations of the law coexist:

              R.C. 4511.48(A) and (E) have been reconciled into the rule that
                                                                              -5-


      a driver need not look for pedestrians or vehicles violating his right of
      way. See Deming v. Osinki, 24 Ohio St. 2d 179, 180-81, 265 N.E.2d 554
      (1970) (rejecting notion that drivers in the right of way must “look, look
      effectively and continue to look and remain alert”). Rather, the operator
      of a motor vehicle must exercise due care to avoid colliding with a
      pedestrian in his right of way only upon discovering a dangerous or
      perilous situation. Id.; Hawkins v. Shell, 8th Dist. No. 72788, 1998 WL
289385 (June 4, 1998); Markley v. Knutson, 3d Dist. No. 9-96-29, 1996
WL 546875 (Sept. 26, 1996). Moreover, a driver has no duty to look for
      danger unless there is reason to expect it. Hawkins, supra. Therefore,
      despite a vehicle operator's duty to exercise due care to avoid colliding
      with a pedestrian, a driver need not keep a lookout for vehicles or
      pedestrians violating his right of way. Lumaye v. Johnson, 80 Ohio
      App.3d 141, 608 N.E.2d 1108 (1992).

Wallace v. Hipp, 6th Dist. No. L-11-1052, 2012-Ohio-623, ¶ 13.
      {¶18} In this case, the trial court found it was undisputed that Smith was
leaving the pizza shop with a co-worker and attempted to cross the northbound lane
of Central Avenue to reach his car.        There was a crosswalk at the nearest
intersection, but some of the paint was worn off of the crosswalk. Smith knew about
the intersection and the crosswalk but did not use it. There is a dispute as to whether
Bond struck Smith or Smith struck Bond. But the trial court found this fact was not
material in light of the law and the lack of evidence that Bond failed to proceed with
ordinary care.
      {¶19} The court stated that it is only after a finding that the defendant’s
vehicle was not proceeding in a lawful manner, by violating a law or ordinance, that
the consideration of the defendant’s common law duty to use ordinary care comes
into play. This was a misstatement of the law. As discussed above, a driver need
not look for pedestrians violating his right-of-way.    But once a driver notices a
dangerous situation, the driver must exercise due care to avoid colliding with the
                                                                              -6-


pedestrian who is in the driver’s right-of-way.
       {¶20} The court went on to find that Bond was lawfully travelling in his lane of
traffic. Bond changed his mind as to a left turn and chose, instead, to proceed
straight, which was his legal right.       The court found there was no evidence
whatsoever that Bond failed to act with due care in any manner. It noted that Bond
may have sped up, but was within his right to do so.         It found that Smith was
negligent in crossing the street outside of the crosswalk and in violation of two
statutes.   Smith had a duty to yield to all traffic proceeding lawfully on Central
Avenue, which Bond was doing. Smith failed to yield and was negligent per se.
Smith’s own negligence was the direct and proximate cause of his damages.
Therefore, the trial court found there was no genuine issue of material fact precluding
summary judgment.
       {¶21} Both Smith and Bond each recounted the accident in their depositions.
       {¶22} According to Smith, he was leaving the pizza shop to deliver a pizza
with a co-worker. (Smith Dep. 21). Smith described Central Avenue as having a
north and a south lane with a barrier of grass and trees separating the two lanes.
(Smith Dep. 22). His truck was parked directly across the street on the road by the
grass barrier. (Smith Dep. 23-24). He only needed to cross the north lane to get to
his truck. (Smith Dep. 22).
       {¶23} Smith stated there was a “worn off” crosswalk at the intersection
preceding the pizza shop. (Smith Dep. 24-25). He stated half of the paint was worn
off of the crosswalk. (Smith Dep. 25). Smith admitted he was not in the crosswalk
when the accident occurred. (Smith Dep. 25). According to Smith, in the business
section where the pizza shop is located, it is common knowledge that people just
walk across the street. (Smith Dep. 27). He never went to the crosswalk to reach his
car from the pizza shop. (Smith Dep. 27-28).
       {¶24} Smith stated that before attempting to cross the street, he looked both
ways. (Smith Dep. 21). He started to cross the street and heard his co-worker yell to
him to watch out. (Smith Dep. 21). The next thing he knew, he was hit. (Smith dep.
                                                                             -7-


21). Smith stated a van hit him and he went up onto the hood and then fell down.
(Smith Dep. 28).
      {¶25} According to Bond, he was driving north on Central Avenue. (Bond
Dep. 36-37). He intended to make a left-hand turn but there was too much traffic, so
he decided to continue straight. (Bond Dep. 54-55). Because there was a lot of
traffic, he was only travelling at six to eight miles per hour. (Bond Dep. 38). Bond
stated that out of the corner of his eye he noticed somebody coming across the street
in his direction so he stopped. (Bond Dep. 38). He stated that the person who was
crossing the street then walked into his vehicle and fell backward. (Bond Dep. 38).
      {¶26} The police crash report was an exhibit in Bond’s deposition. Bond’s
counsel did not object to the use of the crash report as a deposition exhibit. Bond
was questioned by Officer Doty just after the accident. (Bond Dep. Ex. 2). On the
crash report, in the section containing Bond’s personal information, under the
heading “offense description” the officer wrote, “Yield to Pedestrian/FTC.” (Bond
Dep. Ex. 2). Bond did not agree with this statement, however. (Bond Dep. And in
the section containing Smith’s personal information, under the heading “offense
description” the officer left the space blank. (Bond Dep. Ex. 2). On another part of
the crash report titled “contributing circumstances,” the report listed “driver
inattention” as a contributing circumstance for Bond.     (Bond Dep. Ex. 2).    As a
contributing circumstance for Smith, the report listed “other.” (Bond Dep. Ex. 2). On
yet another part of the crash report titled “action,” the officer indicated that Bond
struck Smith. (Bond Dep. Ex. 2).
      {¶27} The crash report also contained witness statements by Molly Roberts,
Smith’s co-worker, and Jeff Greenwood, another motorist who witnessed the
accident. In her statement to police, Roberts stated that as she and Smith were
walking across Central Avenue, she saw a white van coming toward Smith. She
yelled to Smith to look out. Roberts stated it looked like the driver went to push the
brakes but hit the gas instead and the van sped up before it hit Smith. (Bond Dep.
63). In his statement to police, Greenwood stated he was travelling across Central
                                                                             -8-


Avenue to make a turn to go north and yielded to a Bond’s van. He stated the van
started to come across and then “all of a sudden turned right heading north.” (Bond
Dep. 65). Greenwood also indicated that Bond accelerated in order to make the turn
and that the two pedestrians (Smith and Roberts) seemed to be unaware of the
change of direction that the van made. (Bond Dep. 67-68). Finally, Greenwood
stated that he saw Smith get hit and fall to the ground. (Bond Dep. 68). Roberts and
Greenwood also gave affidavits with these same statements, which Smith submitted
with his response to Bond’s summary judgment motion.
        {¶28} The undisputed facts are that Smith was attempting to cross Central
Avenue to reach his car, which was parked on the other side across from the pizza
shop.    A crosswalk existed at the nearest intersection.      Smith was not in the
crosswalk. Smith and Roberts looked both ways before attempting to cross Central
Avenue. Bond was travelling north on Central Avenue. He intended to turn left
before he reached the area of the pizza shop. Bond changed his mind, however,
when he noticed a lot of traffic and continued straight on Central Avenue.
        {¶29} The facts are disputed as to what happened next. According to Smith,
Roberts, and Greenwood, Bond struck Smith with his van. According to Bond, Smith
walked right into his van when he stopped.
        {¶30} More importantly, however, there is a dispute as to Bond’s actions.
According to the police report, Bond failed to yield to a pedestrian and failed to
control his vehicle. The report also indicates that the cause of the accident was
“driver inattention.” Moreover, Roberts stated it appeared that Bond went to apply his
brakes and instead accelerated into Smith. Greenwood also stated that Bond sped
up. And Bond stated that through the corner of his eye, he saw someone coming
across the street in his direction. Bond stated that when he saw the person he
instantly stopped. Additionally, Bond stated that he intended to make a left-hand turn
but then changed his mind and went straight. Greenwood stated that Bond’s change
of direction was “all of a sudden” and that Smith and Roberts appeared to be
unaware of Bond’s sudden change of direction.
                                                                                   -9-


         {¶31} According to the case law set out above, a driver does not have a duty
to look for pedestrians violating his right of way. Wallace, 6th Dist. No. L-11-1052, at
¶ 13; Deming, 24 Ohio St. 2d at 180-181. Thus, Bond did not have a duty to be on
the lookout for pedestrians crossing Central Avenue outside of the crosswalk or
interserction. But a driver must exercise due care to avoid colliding with a pedestrian
in his right-of-way upon discovering a dangerous or perilous situation. Wallace, 6th
Dist. No. L-11-1052, at ¶ 13; Hawkins, 8th Dist. No. 72788; Markley, 3d Dist. No. 9-
96-29.     Therefore, if Bond noticed Smith crossing the street, thereby creating a
perilous situation, Bond had a duty to exercise due care to avoid colliding with Smith.
Whether Bond noticed Smith in time to avoid hitting him and whether Bond
accelerated when he meant to brake are genuine issues of material fact.
         {¶32} The trial court, relying on Wallace, supra, stated that under the law, it is
only after it has been found that the defendant’s vehicle was not proceeding in a
lawful manner, by violating a law or ordinance, that the consideration of the
defendant’s common law duty to use ordinary care comes into play. Wallace does
make this statement. Wallace, at ¶ 16. But it goes on to state:

                Thus, a driver with the right of way must use ordinary care not to
         injure another who has blocked the right of way and has created a
         perilous condition. * * * This duty only arises, however, after the other
         driver or pedestrian has failed to yield and after the driver with the right
         of way has realized that there is a clearly dangerous condition in the
         right of way. * * * Therefore, the driver with the right of way is not
         required to anticipate that this situation might occur, and may proceed
         along the right of way under the assumption that the right of way will be
         respected.

(Internal citations omitted); Id. at ¶ 17. Moreover, in Wallace unlike in the case at
bar, the court pointed out that there was nothing in the record to show that the
defendant actually saw the plaintiff prior to the collision. Id. at ¶ 19. In this case,
                                                                                  - 10 -


Bond stated that he noticed Smith out of the corner of his eye.
       {¶33} Additionally, Wallace cited to this court’s decision in Lydic v. Earnest,
7th Dist. No. 02 CA 125, 2004-Ohio-3194. That case involved a crash between two
vehicles, one which was travelling lawfully and the other that failed to yield to the first
car’s right-of-way. This court pointed out that numerous courts have not allowed the
contributory or comparative negligence of the driver with the right-of-way to become
an issue at trial without evidence that the driver with the right-of-way was driving
unlawfully. Id. at ¶ 31. We went on to state, however that, “[t]he one caveat in all
these cases is that the driver with the right of way must use ordinary care not to injure
another driver who has blocked the right of way and has created a perilous
condition.” Id. at ¶ 34. Thus, even though a driver with the right-of-way has no duty
to look out for other vehicles or pedestrians who are violating his right-of-way, once
the driver with the right-of-way notices another vehicle or pedestrian who has failed to
yield to the right-of-way and created a perilous condition, the driver with the right-of-
way must use ordinary care not to injure the other person.
       {¶34} In sum, construing the evidence in the light most favorable to
appellants, as we are required to do on summary judgment, genuine issues of
material fact exist in this case that preclude summary judgment.             Accordingly,
appellants’ sole assignment of error has merit.
       {¶35} For the reasons stated above, the trial court’s judgment is hereby
reversed and the matter is remanded to the trial court for further proceedings.

DeGenaro, J., concurs.

Robb, J., concurs.