In a Belmont County pedestrian-driver dispute, an appeals court returned to the trial court the case of a pizza delivery man who was struck by a van as he crossed a street to get into his car.

The Seventh District Court of Appeals unanimously ruled late last week that the trial court needs to address the disputed testimony about the accident to determine how to apply state law when pedestrians don’t cross at a crosswalk. The law requires pedestrians outside of a crosswalk to yield to vehicles, but drivers still have some duty to avoid injuring others. In this case, the driver changed direction and stated he saw someone out of the corner of his eye crossing the street before the accident.

Injured Man Sues Driver
Charles E. Smith Jr. worked for DeFelice Bros. Pizza on Central Avenue in the southeastern Ohio town of Shadyside. Smith left the pizza shop with a co-worker on Nov. 5, 2011, to deliver a pizza. As he walked to his car across the northbound lane of Central Avenue, a divided street separated by a grassy median, a van driven by Robert E. Bond hit him. Smith stated he did not use a nearby crosswalk to cross the street.

Smith was injured, and he filed a civil lawsuit in the Belmont County Common Pleas Court against Bond, alleging negligence. In July 2013, Bond requested a summary judgment from the court, but he died shortly afterward. Robert F. Bond and Gary DeTemple, co-fiduciaries of the estate, were substituted as the defendants in the case.

The court decided the case without a trial, determining that Bond’s estate was entitled to summary judgment in the driver’s favor based on state law. The court noted that Smith didn’t have the right to cross the street outside of the crosswalk and that no evidence showed Bond failed to act with due care. Smith appealed to the Seventh District.

Statutes Discuss Driver/Pedestrian Duties
Pedestrians and drivers often have differing views about who has the right of way in the streets. However, state law specifies that “[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,” although “[t]his section does not relieve the operator of a vehicle … from exercising due care to avoid colliding with any pedestrian upon any roadway.”

Accident Accounts Differ
Smith reported that he looked both ways before crossing the street. He explained that as he walked across the avenue, his co-worker yelled to him to watch out, and then he was hit. Bond stated in a deposition that he was going to make a left turn from Central Avenue but, because there was too much traffic, he changed his mind and decided to go straight on Central Avenue. He caught a glimpse of someone crossing the street and stopped, he said, adding that the pedestrian then walked into his vehicle and fell. The police report indicated that Bond failed to yield to a pedestrian, and a contributing cause to the accident was “driver inattention.”

Smith’s co-worker said it looked like Bond went to apply his brakes and instead sped up, hitting Smith. Another witness driving nearby stated that Bond’s move from turning left to going straight was sudden and he accelerated. The witness added that Smith and his co-worker seemed unaware of Bond’s change in direction.

Important Factual Issues Need To Be Addressed, Court Rules
In the Seventh District’s opinion, Judge Gene Donofrio explained that Bond wasn’t obligated to watch out for pedestrians crossing Central Avenue outside a crosswalk or intersection.

However, “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,” he wrote. “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.”

The appeals court concluded that the disputed facts of the case barred the trial court from making a summary judgment ruling.

“[E]ven 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,” he concluded.

Judges Mary DeGenaro and Carol Ann Robb joined the opinion, which returns the case to the trial court for additional proceedings.

Smith v. Bond, 2016-Ohio-5883
http://www.supremecourt.ohio.gov/rod/docs/pdf/7/2016/2016-Ohio-5883.pdf
Civil Appeal From: Belmont County Court of Common Pleas
Judgment Appealed From Is: Reversed and Remanded
Date of Judgment Entry: September 15, 2016

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