Summary
In Ornella v. Robertson, 14 Ohio St.2d 144, 237 N.E.2d 140 (1968), the Supreme Court of Ohio distinguished safety statutes which provide specific standards of conduct and those which provide general standards of conduct.
Summary of this case from Rimer v. Rockwell Intern. Corp.Opinion
No. 41152
Decided May 8, 1968.
Motor vehicles — Traffic regulations — Highway divided by physical barrier — Driving on left thereof prohibited — Section 4511.35, Revised Code — Violation negligence per se — Pleadings and plaintiff's opening statement disclose violation of statute — Granting defendant's motion for judgment thereon not error, when.
1. Section 4511.35, Revised Code, is a specific, mandatory, motor vehicle safety statute, violation of which constitutes negligence per se.
2. Where, upon the pleadings and opening statement of plaintiff's counsel it clearly appears that a plaintiff was in violation of Section 4511.35, Revised Code, by having driven her automobile across a "physical barrier or clearly indicated dividing section constructed so as to impede vehicular traffic," and that that violation proximately contributed to cause plaintiff's injuries, it is not erroneous for the trial court to grant a motion by defendant for judgment on the pleadings and opening statement of plaintiff's counsel.
APPEAL from the Court of Appeals for Hamilton County.
This cause concerns an action for damages for personal injury on behalf of the plaintiff Beatrice Ornella, and an action for medical expenditures and loss of constortium on behalf of the plaintiff A.O. Ornella, against the defendant, Reynolds Robertson. Both causes of action arose out of an automobile collision that occurred May 12, 1961, on state route 125 in Hamilton County. Plaintiff A.O. Ornella's right of recovery is contingent upon plaintiff Beatrice Ornella's right of recovery.
The following allegations are set forth under plaintiffs' first cause of action in their joint petition:
"Plaintiff, Beatrice Ornella, says that on May 12, 1961, at about 5:30 p.m. she was driving a 1960 Volkswagen automobile in a westerly direction on Beechmont Avenue (state route 125), Hamilton County, Ohio, and stopped in the west bound lane next to the center line at a point approximately 300 feet west of the intersection of Beechmont Avenue and Wolfangle Road preparatory to making a left turn into the parking area of Anderson High School which is located to the south of Beechmont Avenue.
"The intersection of Beechmont Avenue and Wolfangle Road is controlled by an electric traffic signal. West of the intersection there are two east bound travel lanes of Beechmont Avenue. Traffic was backed up in both east bound travel lanes from the intersection to a point west of the place at which plaintiff had stopped her car.
"When the east bound traffic began to move, the drivers of the automobiles in each of the east bound lanes immediately west of the plaintiff remained in position and the plaintiff executed a left turn.
"After crossing the two east bound travel lanes and while crossing the south shoulder of Beechmont Avenue, plaintiff's automobile was struck in the right side by the front of an automobile being operated by defendant in an easterly direction on said shoulder.
"Plaintiff says that said shoulder is not a travel portion of said highway and that said collision was the direct and proximate result of defendant's negligence in that defendant operated his vehicle on a portion of the roadway not authorized for travel, failed to keep a proper lookout for plaintiff's vehicle, and passed to the right of vehicles driving in the same direction as defendant. * * *"
In his opening statement, counsel for the plaintiff elaborated on the allegations made in the petition, and in describing that portion of the roadway where plaintiff began her turning movement made the following statements:
"Now the markings at that particular time on Beechmont Avenue in front of Anderson High School were down the center of the roadway. There were some concrete dividers; they were separated. It wasn't a constant divider. They were set in there at an angle. They were maybe about a foot and a half, maybe by a foot, maybe about four inches high, set in at angles all down the street in the middle of the roadway.
"Then on the south portion of the highway which would be the eastbound lane, there was one set of markings, in other words in addition to this centerline or these centerline dividers there was a broken line painted on the roadway.
"* * *
"Now when the traffic light up here at Wolfangle turned, the vehicles that had come up in this middle lane, the lane next to the center divider going eastwardly stopped and left an opening between them and the rear of the car that was in front going this way so that Mrs. Ornella could make a turn.
"* * *
"All right, so this lane coming eastwardly had stopped to permit her to make the turn, the next lane over did the same thing. All right, so then she proceeded to make her left turn with this Volkswagen." (Emphasis supplied.)
At the close of plaintiffs' counsel's opening statement, counsel for the defendant made a motion for a judgment for the defendant upon the pleadings and the opening statement of counsel for plaintiffs. This motion was granted, and final judgment rendered for the defendant.
On appeal to the Hamilton County Court of Appeals the judgment was affirmed.
This cause is here pursuant to the allowance of a motion to certify the record.
Messrs. Spraul Reyering, Mr. Thomas C. Spraul and Mr. James Cissell, for appellants.
Messrs Tyler, Kane Rubin and Mr. Smith H. Tyler, Jr., for appellee.
As is demonstrated by remarks set forth in the statement of this case made by counsel for plaintiffs during his opening statement, plaintiff, Beatrice Ornella, executed a left turn at a point in a highway divided into two roadways by angled concrete dividers.
Section 4511.35, Revised Code, provides in full text, as follows:
" Whenever any highway has been divided into two roadways by an intervening space, or by a physical barrier, or clearly indicated dividing section so constructed as to impede vehicular traffic, every vehicle shall be driven only upon the right-hand roadway, and no vehicle shall be driven over, across, or within any such dividing space, barrier, or section, except through an opening, crossover, or intersection established by public authority. This section does not prohibit the occupancy of such dividing space, barrier, or section for the purpose of an emergency stop or in compliance with an order of a police officer." (Emphasis supplied.)
Section 4511.35, Revised Code, was first enacted as Section 6307-34 a, General Code, and became effective September 11, 1951. It constituted one of fourteen amendments made that year to the Uniform Traffic Act (Chapter 6307, General Code) which had been adopted in Ohio in 1941. It resulted as part of a plan by the General Assembly to update the traffic laws to conform with changed conditions in modern highways. (For an interesting review of all the 1951 amendments see "The Uniform Traffic Act is Amended," by John E. Hallen, 12 Ohio State L.J. 351.) It was re-enacted as Section 4511.35, Revised Code, in 1953. This is the first case to reach this court requiring a consideration of that statute.
That Section 4511.35, Revised Code, was intended as a safety measure to protect those persons traveling in the opposite direction on a divided highway is obvious. But safety statutes are of two types — those which provide a specific standard of conduct and those which provide a general standard of conduct. A violation of the former type constitutes negligence per se whereas a violation of the latter type does not.
The distinction was discussed in this court's opinion in the case of Swoboda v. Brown, 129 Ohio St. 512, where Judge Matthias (Edward S.) stated, at page 520 in the opinion:
"* * * It is true that some confusion has arisen as to what constitutes negligence per se, or negligence as a matter of law. Certainly not every provision of law or ordinance which directs the manner of operation of motor vehicles constitutes such a requirement that failure to observe it would of itself constitute negligence. * * *"
And further, at pages 522-23:
"The distinction between negligence and `negligence per se' is the means and method of ascertainment. The first must be found by the jury from the facts, the conditions and circumstances disclosed by the evidence; the latter is a violation of a specific requirement of law or ordinance, the only fact for determination by the jury being the commission or omission of the specific act inhibited or required.
" Where a specific requirement is made by statute and an absolute duty thereby imposed, no inquiry is to be made whether the defendant acted as a reasonably prudent man, or was in the exercise of ordinary care. In such a situation, the obligation and requirement has been fixed and established by law, and the conduct of any person which is violative of such specific statutory requirement is illegal and if it proximately results in injury to one to whom a legal duty is owed, the transgressor is liable for the resulting damage. In such case, the jury is not called upon to determine whether the conduct constituted negligence; it determines only whether the act prohibited was committed or the act required by law was omitted, as the case may be. The violator of such specific requirement of law is liable irrespective of the question as to whether his act is such as is deemed to meet and satisfy the test of ordinary or reasonable care which would be applied in the absence of such statutory definition and imposition of absolute duty, such as, for instance, the absolute and specific requirement as to headlights. Where the standard of duty is thus fixed and absolute, it being the same under all circumstances, the failure to observe that requirement is clearly negligence per se. But where duties are undefined, or defined only in abstract or general terms, leaving to the jury the ascertainment and determination of reasonableness and correctness of acts and conduct under the proven conditions and circumstances, the phrase negligence per se has no application." (Emphasis supplied.)
See, also, Schell v. DuBois, 94 Ohio St. 93; Bush v. Harvey Transfer Co., 146 Ohio St. 657; 2 Restatement of the Law, Torts, 2d, Section 286.
It being clear that the standard of duty imposed by Section 4511.35, Revised Code, is a specific requirement, which is fixed and absolute, the same under all circumstances and is imposed upon all users of motor vehicles on divided highways, it follows that a violation of that section constitutes negligence per se.
Since the opening statement of counsel admits of acts by plaintiff, Beatrice Ornella, which constitute a violation of Section 4511.35, Revised Code, it only remains to be determined if that violation proximately contributed to cause her injuries, for if it did, she may not recover.
It may be said that the law imposes a duty upon persons to protect themselves from injury. Sometimes that duty may consist only in the obligation to conduct themselves as reasonably prudent persons would under the same or similar circumstances. Sometimes that duty might rise to the level of an even higher obligation — that of refraining from conduct which might appear reasonably prudent under the circumstances. This latter type of obligation, may, of course, be imposed only where there is a clear statutory mandate. Section 4511.35, Revised Code, for instance.
When this duty imposed by law is breached, and the violation proximately contributes to cause an injury also proximately caused in part by negligence for which another party is responsible, no recovery may be had under the law in this state.
Being able to arrive at no other conclusions, from the allegations contained in the petition and the remarks made by counsel for the plaintiffs during opening statement, except that plaintiff, Beatrice Ornella, was negligent as a matter of law, for a violation of Section 4511.35, Revised Code, we cannot determine otherwise than that plaintiff's violation proximately contributed to cause her injuries, which precludes her recovery altogether. If she had not engaged in the forbidden endeavor, to wit, making the left turn across a physical barrier in a divided highway at a place otherwise than provided by public authority, then she would not have placed herself in a position of peril to be hit by someone proceeding in the opposite direction as was defendant.
In Clinger v. Duncan, 166 Ohio St. 216, at page 222 in the opinion, Judge Zimmerman made the following statement:
"The term, `proximate cause,' is often difficult of exact definition as applied to the facts of a particular case. However, it is generally true that, where an original act is wrongful or negligent and in a natural and continuous sequence produces a result which would not have taken place without the act, proximate cause is established, and the fact that some other act unites with the original act to cause injury does not relieve the initial offender from liability." (Emphasis supplied.)
It is because what constitutes a "natural and continuous sequence" is insusceptible of determination other than in the context of a particular case that the issue of proximate cause is ordinarily one for determination by the jury. However, where reasonable minds could not differ with respect to the matter because the circumstances clearly indicate an obvious cause and effect relationship, the issue may be determined as a matter of law.
In granting the motion for judgment on the pleadings and opening statement of plaintiffs' counsel, the Common Pleas Court necessarily made the determination that, were plaintiffs to prove all that they set out to prove, no right to recover would be established. Since, for all of the foregoing reasons, we are of the opinion that that is a correct determination, we affirm the judgment below.
Judgment affirmed.
TAFT, C.J., ZIMMERMAN and O'NEILL, JJ., concur.
HERBERT and SCHNEIDER, JJ., concur in paragraph one of the syllabus, but dissent from paragraph two of the syllabus and from the judgment.
BROWN, J., dissents.