629 N.E.2d 1094

ASCHERMAN et al. v. OHIO DEPARTMENT OF TRANSPORTATION et al.

No. 90-11228.Court of Claims of Ohio.
Decided April 29, 1992.

Page 317

D. Arthur Raybourn, for plaintiffs.

Lee Fisher, Attorney General, and Stephanie D. Pestello-Sharf, Assistant Attorney General, for defendants.

Mary S. Peterson, for intervenor.

SHOEMAKER, Judge.

On December 15, 1989, a snow storm hit Hamilton County, Ohio, and accordingly, defendant, Ohio Department of Transportation (“ODOT”), sent snowplows out to clear and salt the roadways. At approximately 9:30 p.m., one of the snowplows experienced mechanical problems. Its driver, Ray Schwab, parked the snowplow on or near the left berm of the I-275 interchange ramp that connects I-74 west to I-275 south and radioed for help. Another snowplow driver, Andrew Fluegeman, came to pick up Schwab. Before leaving the disabled truck, Schwab illuminated all its lights except for the headlights.

The two drivers returned to their outpost, where Schwab notified his supervisors that his snowplow was disabled and parked in the left berm of the I-275 interchange ramp with its lights illuminated. At this time, ODOT did not have any mechanics on duty who could be dispatched to check the status of the disabled snowplow.

At approximately midnight, a mechanic came on duty. Instead of going to the I-275 interchange ramp to check the status of the disabled snowplow, the mechanic proceeded to work on some other disabled snowplows that were in the garage.

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On December 16, 1989, at approximately 2:30-3:00 a.m., plaintiff, Bonnie Ascherman, was driving her car west on I-74 approaching the I-275 interchange ramp. Ascherman entered onto the two-lane ramp in the left lane and, shortly thereafter, struck the right rear of the disabled snowplow. At this time, it was no longer snowing and the snowplow’s lights were not illuminated.

Plaintiffs filed this action seeking damages from defendants for injuries Bonnie Ascherman sustained in the accident. This matter came on for trial regarding the sole issue of liability on January 27, 1992, and the trial was concluded on January 28, 1992. The court granted the parties leave until February 28, 1992, to file post-trial briefs. Briefs were timely filed by the parties.

During the course of trial, and in their post-trial brief, plaintiffs claimed that (1) Schwab left a portion of the right rear of the snowplow protruding into the left lane of the travelled portion of the roadway; (2) Schwab failed to warn motorists of the snowplow’s presence, thus violating R.C. 4513.27
and 4513.28, and; (3) the aforementioned acts of negligence were the sole, proximate cause of her injuries. Conversely, defendants asserted that (1) no portion of the snowplow was protruding into the left lane of the roadway; and (2) the sole proximate cause of Ascherman’s injuries was her own negligence in failing to stop the car within the assured clear distance ahead, thus violating R.C. 4511.21 (the assured-clear-distance-ahead statute).

It is axiomatic that a party asserting a claim has the burden of proving that claim by a preponderance of the evidence. Even though Schwab, in good faith, believed that the disabled snowplow was parked totally within the berm, the court finds that plaintiffs proved that a portion of the disabled snowplow was protruding into the travelled portion of the roadway. Furthermore, the court recognizes that ODOT was operating under emergency conditions with limited personnel; however, ODOT should have known from common sense and past experience that the snowplow’s lights, which were illuminated to warn motorists of its presence, would go out after the passage of approximately six hours in extremely cold weather. The court finds that ODOT was negligent for leaving a portion of the truck in the roadway without any warning to motorists of its presence and that this was a proximate cause of the accident.

The assured-clear-distance-ahead statute, R.C. 4511.21, requires that a motor vehicle be operated so that it can be stopped within the distance between the motor vehicle and a discernible object in the roadway. State v. Cheatwood (1948), 84 Ohio App. 125, 39 O.O. 152, 82 N.E.2d 770. Therefore, for defendant to prevail in its claim, it must prove by a preponderance of the evidence that the snowplow was a discernible object at the time of the accident, which the court so finds. The court finds that Ascherman violated the assured-clear-distance-ahead

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statute for failing to stop her car before hitting the snowplow, and this was a proximate cause of her own injuries.

Accordingly, the court finds that plaintiff’s injuries were caused by the negligence of both herself and defendant. The court concludes that Ascherman and ODOT were fifty percent responsible for Ascherman’s injuries.

This cause will be rescheduled as soon as possible, but at the convenience of the parties, to determine the damage issue.

Judgment accordingly.