Login | December 11, 2018

7th District affirms ruling in Mahoning County fatal crash case

TRACEY BLAIR
Legal News Reporter

Published: January 12, 2018

Mahoning County is not liable for a fatal minivan vs. motorcycle accident in Boardman, the 7th District Court of Appeals has affirmed.

The case stemmed from a March 21, 2012 incident.

Robert M. Emmerling, who had been driving a motorcycle in the left-hand lane of soutbound South Avenue near McClurg Road, died nearly a month later from injuries sustained from the collision.

The motorcyclist’s widow, Maureen A. Emmerling, filed a wrongful death suit against the Mahoning County Board of Commissioners, claiming the other driver’s view of oncoming traffic was obstructed by signs erected by the county.

It all began when 16-year-old Alex Tareshawty had been waiting to turn left onto northbound South Avenue in his minivan.

Tareshawhty slowly moved his van forward to better see the traffic on South Avenue. Traffic on South Avenue did not have any “stop” indicator at the McClurg Road intersection.

Tareshawty testified the motorcycle “seemed to appear out of nowhere.” He claimed he had to speed up because it was too late to stop, according to case summary.

There are three signs at issue that were mounted on the same two posts — at the top was a two-way, left-turn sign; in the middle was a hospital sign and at the bottom was a directional arrow sign showing the direction of the hospital.

Two years before the accident, the county hired professional engineers to study the intersection.

A traffic engineer for the county testified there were 62 crashes at the intersection from 2005 to 2012, most of them left-turn accidents.

Although the engineer’s report recommended the hospital and arrow signs be moved as a short-term solution, they weren’t moved until the Emmerling incident.

An appellant expert testified that the signs blocked the van driver’s view, contributing to the crash. An expert for the appellee argued that the signs and their location played no role in the incident.

In 2015, the county filed a motion for summary judgment, contending it was immune from tort liability as a political subdivision. They also claimed the widow had no evidence to establish a proximate cause between any alleged negligence and the accident.

After the trial judge granted the motion, the appellant argued that R.C. 2744.02(B)(3) provides that political subdivisions can be “liable for injury, death or loss to person or property caused by their negligent failure to keep public roads in repair and other negligent failure to remove obstructions from public roads.”

In a 2-1 opinion, the appellate panel disagreed.

“The trial court correctly determined that no exception to Appellee’s immunity exists, here,” 7th District Judge Cheryl L. Waite stated. “We must note that even if we were to hold that the sign placements were included within the duty to keep roadways `in repair’ and found that Appellee’s action in placing these signs created an exception to immunity, immunity would be restored by the defense of Appellee’s use of discretion as codified in R.C. 2744.03(A)(3) and (5).”

In addition, Judge Waite noted that Tareshawty testified the signs were not blocking his view and he had no idea why he did not see Emmerling and his motorcycle.

“The driver’s view was not obstructed. He simply failed to see the motorcyclist until it was too late,” Judge Waite said.

Appellate Judge Mary DeGenaro concurred that the county was immune from suit and that the appellant failed to establish a causal connection between the driver’s conduct and any actionable conduct by the county.

However, 7th District Judge Gene Donofrio dissented, finding the issue of whether negligent conduct is the proximate cause of an injury should be decided by a jury.

“Although his estimation was that there were no telephone poles or signs that blocked his view, Tareshawty clearly was at a loss to explain what he did wrong or why the motorcycle appeared out of nowhere,” Judge Donofrio stated in his dissenting opinion. “Not only did the trial court fail to consider the balance of Tareshawty’s testimony, it improperly gave greater weight to only a portion of Tareshawty’s testimony, especially when considered in light of the other evidence offered by appellant.”

For instance, a licensed professional engineer provided an affidavit concluding that Emmerling’s speed and location, as well as the geometry of the sight obstruction created by the signs, explained why the van driver did not see the motorcycle when he looked to his left before pulling into the intersection.

“By emphasizing only Tareshawty’s estimation about the signs, and ignoring the balance of Tareshawty’s testimony, the expert’s opinions, and the other attendant facts, the trial court weighed the evidence, which it is not permitted to do in ruling on a summary judgment motion,” Judge Donofrio stated.

The case is cited Emmerling v. Mahoning Cy. Bd. Of Commrs., 2017-Ohio-9066.


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