Opinion
No. 90-02890.
Decided March 1, 1993.
James E. Barker and Joseph R. Gioffre, for plaintiff.
Lee Fisher, Attorney General, and Jeffrey R. Goldsmith, Assistant Attorney General, for defendant.
On October 5, 1992, plaintiff, Andrew Kocur, was injured in an automobile accident at the intersection of State Route 3 (S.R. 3) and State Route 606 (S.R. 606), in Medina County, Ohio. Plaintiff filed this action seeking to recover damages from defendant for the injuries he sustained. The matter came on for trial on the sole issue of liability. At the conclusion of trial, the court requested that both parties submit proposed findings of fact and conclusions of law. Such proposals were timely filed by both parties. After considering all of the evidence, briefs and arguments of counsel, the court renders the following decision.
The subject intersection is a "three-legged" intersection. When traveling on S.R. 3 northeastbound, S.R. 3 bends in an easterly direction, while S.R. 606 begins at that point proceeding northeast. At the intersection, the only traffic control device is a stop sign that regulates traffic traveling on S.R. 606 southwestbound and entering S.R. 3. (See diagram of this intersection attached hereto and marked "Exhibit A.")
At approximately 2:30 p.m., plaintiff was southwest of the intersection, driving his automobile on S.R. 3 northeastbound. Plaintiff approached the intersection, continued through a portion of the bend in S.R. 3, and thus attempted to steer his vehicle left onto S.R. 606, thereby crossing the southwestbound lane of S.R. 3. While making this left turn, his vehicle was struck by the driver of a pickup truck that was traveling in a lawful manner in such southwestbound lane.
Plaintiff has no independent recollection of traveling on S.R. 3. He had no passengers in his vehicle. Thus, plaintiff does not remember whether at the time of the accident he was attempting to turn left onto S.R. 606 or continue on S.R. 3. However, the court finds from the totality of the evidence that in fact plaintiff was attempting to turn left onto S.R. 606.
The gravamen of plaintiff's claim for a right to relief is that defendant was negligent because: (1) it maintained a dangerous intersection, (2) the intersection was not marked in compliance with the Ohio Manual of Uniform Traffic Control Devices for Streets and Highways ("Manual"), and (3) defendant failed to provide adequate advance turn markings on S.R. 3 northeastbound as required by the Manual. Conversely, defendant denies that it was negligent. Defendant asserts that plaintiff was negligent, and that his negligence was the sole proximate cause of his injuries. Alternatively, defendant claims that even if plaintiff proved that defendant was negligent in any manner, such negligence was not a proximate cause of the accident, and furthermore, that the negligence of plaintiff was greater than any negligence of defendant.
The court will first discuss defendant's assertion that plaintiff was negligent, and that his negligence was the sole proximate cause of his injuries. More specifically, defendant asserts that plaintiff was negligent for violating R.C. 4511.42 and 4511.25.
R.C. 4511.25 governs the lanes of travel upon roadways. R.C. 4511.42 governs the right-of-way when turning left. At the time of the accident, plaintiff was in the process of turning left to cross the southwestbound lane of S.R. 3. Accordingly, the court finds that application of R.C. 4511.42 to the incident is proper, but that application of R.C. 4511.25 is not proper.
R.C. 4511.42 states:
"The operator of a vehicle, streetcar, or trackless trolley intending to turn to the left within an intersection or into an alley, private road, or driveway shall yield the right of way to any vehicle, streetcar, or trackless trolley approaching from the opposite direction, whenever the approaching vehicle, streetcar, or trackless trolley is within the intersection or so close to the intersection, alley, private road, or driveway as to constitute an immediate hazard." (Emphasis added.)
The court finds that when making the left turn, plaintiff failed to yield the right-of-way to the driver of the pickup truck traveling in the opposite direction, and thus, he was negligent for violating R.C. 4511.42.
The court will also address plaintiff's claims for a right to relief. Plaintiff's first assertion is that defendant was negligent because it maintained a dangerous intersection, and that such negligence was a proximate cause of his injuries. More specifically, plaintiff asserts that the area adjacent to the intersection on the right side of S.R. 3 northeastbound contained numerous mature trees and vegetation at the time of the accident which impaired plaintiff's view regarding traffic traveling on S.R. 3 westbound.
In effect, plaintiff's first claim is that defendant was negligent for not removing the trees or vegetation. The Director of the Ohio Department of Transportation has supervision and control over trees and vegetation within the limits of a state highway. R.C. 5501.42. Whether or not trees or vegetation should be removed from within a state highway is left to the discretion of the Director of the Ohio Department of Transportation. Rawlins v. State (1980), Ct. of Cl. No. 79-0171, unreported. Defendant is immune from tort liability for damages resulting from its not performing a discretionary act. Winwood v. Dayton (1988), 37 Ohio St.3d 282, 525 N.E.2d 808.
Plaintiff's second assertion is that the intersection was not marked in compliance with the Manual, and thus, defendant was negligent, and such negligence was a proximate cause of his injuries. More particularly, plaintiff asserts that defendant failed to comply with the Manual, because the center line of S.R. 3 did not continue through the intersection.
In order for defendant to be negligent for not properly placing or maintaining a traffic control device, plaintiff must show that defendant failed to comply with the Manual. Dunn v. Ohio Dept. of Transp. (1992), Ct. of Cl. No. 90-07280, unreported. In effect, failure to comply with the Manual results in negligence per se. A defendant is negligent per se where a regulation imposes upon the defendant a duty to do or omit to do a definite act, and the failure to perform that duty proximately results in injury to a plaintiff. Buckeye Stages, Inc. v. Bowers (1939), 129 Ohio St. 412, 2 O.O. 401, 195 N.E. 859.
Accordingly, in order for defendant to be negligent for not continuing the center line of S.R. 3 through the intersection, it must have failed to comply with the Manual. A center line is defined and its placement governed by Section 3B-1 of the Manual. Section 3B-1 states:
"A center line separates traffic traveling in opposite directions. It need not be at the geometrical center of the pavement. In locations where a continuous center line is not required, short sections may be useful on approaches to important intersections, marked crosswalks, or railroad crossings, and around curves or over hill crests, to warn of any unusual condition and control traffic.
"Center lines should be used on paved highways under the following conditions:
"1) In rural districts on two-lane pavement 16' or more in width with prevailing speeds of greater than 35 MPH.
"2) On all through highways in residential or business districts, and all other highways where there are significant traffic volumes.
"3) On all undivided pavement of four or more lanes.
"Center lines are also desirable at other locations where an engineering study indicates a need for them. Center lines should not be used on pavements narrower than 16 feet. Center lines should not be applied on one-lane bridges. The center line should stop 150 feet in advance of these one-lane structures.
"The center line, when used, on two-lane, two-way highways shall be:
"a) A normal dashed yellow line where passing is permitted, or
"b) A double line consisting of a normal dashed yellow line and a normal solid yellow line where passing is prohibited in one direction, or
"c) A double line consisting of two normal solid yellow lines where passing is prohibited in both directions.
"When a center line is used on undivided two-way highways where four or more lanes are always available it shall be a double solid yellow line. Where parking is permitted at least part of the time a normal dashed yellow center line may be used.
"On a three-lane highway it is preferable to designate two lanes of traffic in one direction.
"Applications of center lines are [illustrated in the Manual] * * *."
Furthermore, Section 3B-11 of the Manual governs when pavement markings are to be extended through intersections. Section 3B-11 states in part:
"Where road design or reduced visibility conditions make it desirable to provide control or to guide vehicles through an interchange or intersection (such as at offset, skewed, complex multi-legged intersections or where multiple turn lanes are used) a dotted line may be used to extend markings as necessary through the interchange or intersection area.
"Where a greater degree of restriction is required, solid lane lines or channelizing lines may be continued through intersections. The most frequent use of the channelizing line is for turning movements * * *." (Emphasis added.)
When the words "shall," "should," and "may" are used in the Manual, their meanings are determined by Section 1D. The word "shall" indicates a mandatory requirement, whereas "should" is merely advisory but not mandatory, and "may" indicates a permissive condition.
When considering the aforementioned sections of the Manual, the court finds defendant is not required to extend center lines through intersections. Plaintiff's own expert witness testified that the Manual does not require center lines to be extended through intersections. The court finds that defendant was not negligent for failing to continue the center line of S.R. 3 through the intersection.
In his last assertion, plaintiff contends that defendant was negligent because it did not provide a route turn assembly on S.R. 3 northeastbound as required by the Manual, and that such negligence was a proximate cause of his injuries. More specifically, plaintiff asserts that defendant failed to comply with the Manual because there was no route turn assembly (route marker and arrows attached indicating the courses of travel of S.R. 3 and S.R. 606) approximately four hundred fifty feet south of the intersection on S.R. 3 northeastbound.
In order for defendant to be negligent for not providing a route turn assembly, plaintiff must show that defendant failed to comply with the Manual. Dunn, supra. Section 2Q-2 of the Manual governs the placement of route turn assemblies. Section 2Q-28 states in part:
"Advance Turn Markers shall be used with the appropriate route marker to form a route turn assembly.
"This assembly shall be used on a number route in advance of an intersection to indicate a turn or change in direction of that route at the intersection and may be erected in advance of a turn which must be made to follow an indicated route.
"If several overlapping routes turn at an intersection, each shall be marked, in advance of the intersection, with a separate route turn assembly, whether they turn in the same or in different directions. Where one or more routes turn while one or more proceed straight through, the routes that turn shall be marked with route turn assemblies, using the appropriate right or left Advance Turn Markers, while the straight-through routes should be indicated by similar assemblies using the vertical Directional Arrow (M-26). See Figures GS-1, 2, 6.
"Route turn assemblies may be omitted where the character of the roadway clearly indicates the course of the route or routes.
"Route turn assemblies for all routes should be grouped in a single mounting. Where there are routes turning in opposite directions, route turn assemblies for routes turning left should be mounted to the left of the group or assemblies, and those for right-turning routes to the right. If straight-through assemblies are used, the right and left turn assemblies should be to the right and left of them respectively. In a vertical arrangement, the straight-through assemblies should be at the top, followed by left and right turn assemblies respectively.
"In rural districts these assemblies shall be erected not less than 450 feet in advance of the intersection.
"In residential and business districts these assemblies shall be erected midway in the block preceding the intersection but in no case farther than 500 feet from the center of the intersected street. * * * (Emphasis added.)
The court finds that the intersection of S.R. 3 and S.R. 606 was in a rural district for the purpose of Section 2Q-28 of the Manual. Thus, Section 2Q-28 required defendant to place a route turn assembly four hundred fifty feet southwest of the intersection on S.R. 3 northeastbound, unless the courses of S.R. 3 and S.R. 606 were clearly indicated.
The court finds that defendant did not violate Section 2Q-28 of the Manual by not providing a route turn assembly on S.R. 3 northeastbound, because the courses of S.R. 3 and S.R. 606 were clearly indicated. The court bases this finding on the following facts: (1) approximately seven hundred sixty-five feet southwest of the intersection on S.R. 3 northeastbound, a curve warning sign and advisory speed plate were placed to indicate the course of S.R. 3; (2) approximately five hundred eighty feet southwest of the intersection on S.R. 3 northeastbound, a junction S.R. 606 sign was placed to indicate the intersection of S.R. 3 and S.R. 606; (3) the right edge-line of S.R. 3 continued through the intersection to guide motorists on the course of S.R. 3; and (4) at the intersection, directional arrow markers indicating the courses of S.R. 3 and S.R. 606 were placed in view of motorists traveling on S.R. 3 northeastbound. Plaintiff failed to see or observe the above-noted indicators advising him that S.R. 3 was to his right as he was driving on S.R. 3 northeastbound.
The totality of the evidence and a review of the law convinces this court that defendant was not negligent. Plaintiff's negligence was the sole and proximate cause of this accident and of his injuries. Additionally, even if defendant was negligent, plaintiff would not be entitled to relief because Ohio's comparative negligence statute, R.C. 2315.19, bars plaintiff from recovery if he was negligent and such negligence was a greater cause of his injuries than any negligence of defendant. The court, as the finder of fact, has the discretion to determine the degree of negligence of the respective parties for the purpose of R.C. 2315.19. Berz v. Ohio Dept. of Highway Safety (1992), Ct. of Cl. No. 90-09291, unreported. Even if defendant was negligent in some manner, the court finds that plaintiff's negligence was a greater cause of his injuries than any possible negligence of defendant.
In view of the above, the court finds that plaintiff has failed to prove that he is entitled to relief. Therefore, the court will render judgment for defendant.
Judgment for defendant.
FRED J. SHOEMAKER, J., retired, of the Franklin County Court of Common Pleas, sitting by assignment.