RIGINAL IN THE SUPREME COURT OF OHIO DONALD MULL ) CASE NO. 11-0207 -vs- Plaintiff-Appellant ) On Appeal from the Eighth District Court of Appeals, Cuyahoga County TAKARA MADKINS, et al. Defendants-Appellees Court of Appeals Case No. CA-10-094554 DEFENDANTS-APPELLEES' JOINT OPPOSITION BRIEF TO PLAINTIFF-APPELLANT'S MEMORANDUM IN SUPPORT OF JURISDICTION STANLEY L. JOSSELSON (0025685) JAY S. HANSON (0029596) Marion Building, Suite 411 323 Lakeside Place, Suite 380 1276 West Third Street Cleveland, OH 44113 Cleveland, OH 44113 (216) 912-4070 (T) * (877) 888-1537 (FAX) Attorney for Plaintiff-Appellant ihansonkamfam.com Attorney for Defendant'-Appellee, Takara Madkins RUT VE MAR 0 7 2011 D CLERK OF COURT SUPREME COUR i OF OHIO C. RICHARD McDONALD (0017537) BEVERLY A. ADAMS (0074958) DAVIS & YOUNG 1200 Fifth Third Center 600 Superior Avenue, East Cleveland OH 44114-2654 (216) 348-1700 (T) * (216) 621-0602 (FAX) rmcdonalgdavisvoune. com badams davisyoung.com Counsel for Defendant-Appellee, Westfield Insurance Company LDD MAR 0 i 2011 CLERK OF COURT SUPREME COURT OF OHIO
INTRODUCTION This matter involves a typical motor vehicle versus pedestrian accident. The action proceeded to a jury trial and a verdict was returned in favor of Appellees. Appellant asserts that there was error in the instruction of the jury as to the duties of Appellant and Appellee Takara Madkins and that such error qualifies as a public or great general interest. Contrary to Appellant's assertion, nothing in the instant case merits review by this Court. Rather, the trial court instructed the jury on the well-established respective duties and right of way of pedestrians and motorists under Ohio law. Further, the appellate court simply followed and applied well-established precedent to a specific set of facts to find no plain error in the trial court's instructions to the jury. More importantly, Appellant never objected to the jury instructions given at trial but, in fact, he actually agreed to the instructions provided to the jury of which he now complains. As demonstrated below, not one of the issues presented by Appellant qualifies as an issue of public or great general interest and, therefore, neither warrant this Court's discretionary review. Accordingly, this Court should decline to entertain the instant appeal. STATEMENT OF CASE AND FACTS Appellant Donald Mull ("Mull") filed a Complaint against Appellees Takara Madkins ("Madkins") for negligence and Westfield Insurance Company for underinsured motorists coverage ("Westfield"), collectively "Appellees," as a result of injuries he sustained from a pedestrian - motor vehicle accident that occurred on September 23, 2005. Appellees timely filed their Answers thereto asserting, among other affirmative defenses, that Appellee Madkins was not negligent and that Appellant's own actions were the proximate cause of his injuries. 1
The case proceeding to a jury trial on January 6, 2010. The evidence at trial revealed: The accident occurred at the busy intersection of Ontario Street and Huron Road in Cleveland, Ohio, at 9:00 a.m. during rush hour with a high volume of traffic. At this intersection, Ontario Street is an eight-lane highway, with five lanes heading northbound and three lanes heading southbound. Of the five northbound Ontario lanes, two of the lanes are for traffic turning left onto Huron Road, while the other three northbound Ontario lanes proceed straight or turn right. There are three marked crosswalks at three corners of this intersection, each equipped with pedestrian signals. There is no marked crosswalk for pedestrians to cross west to east across Ontario at the south end of the intersection. Just before the accident, Mull was dropped off by a vehicle at the southwest corner of the intersection. Immediately after exiting the vehicle, Mull began crossing the south portion of Ontario Street and its eight lanes of traffic where there was no marked crosswalk. He admitted that he never looked at the traffic lights before proceeding across the eight lanes of traffic on Ontario Street but proceeded across the intersection merely because traffic was stationary. Although Ontario Street northbound traffic began to move as he crossed the eight lanes of traffic, he did not stop crossing the intersection but quickened his pace to across the intersection. At that same time, Madlcins was proceeding northbound on Ontario Street and was stopped at the red light. She was the first car in the second lane from the east curb of northbound traffic. The light turned green, and Ms. Madlcins took her foot off the brake to move forward. A car in the lane to her left proceeded into the intersection. Madkins was looking straight ahead, and she too proceeded to go through the green light very slowly. Unfortunately, Mull walked right in front of her vehicle and Madkins struck him. Madkins never saw Mull prior to the accident. Madkins 2
testified that she was not on her cell phone at the time nor was she distracted or otherwise occupied with anything in her vehicle, nor was any evidence presented to the contrary from independent witnesses. Prior to instructing the jury, the trial court and all counsel discussed the instructions to be given to the jury as to the duties and right of way of Mull and Madkins. Outside the presence of the jury, the trial court addressed with counsel the jury instructions. Pertinently, Mull never objected to the instruction and, more importantly, Mull's counsel even agreed to the instruction of which he now complains: THE COURT: Let the record reflect we're out of the presence of the jury. We had a conversation in chambers relative to the jury instructions. I know that there are objections. I want to have parties place those upon the record. It is the intention of the Court, this is not in any specific order, but I will give the charge requested under 411.93, "Not in a crosswalk." I'm not going to make reference, by the way, to the specific code section, statute, or OJI. It starts off, "Pedestrian crossing in the roadway at any point other than the within," blah, blah, blah. That's been aereed to I'm told? Is that accurate? MR. HANSON: MR. McDONALD: THE COURT: Yes. That portion, yes. Okay. And the use of ordinary care toward a pedestrian, that's been agreed to as well? MR. JOSSELSON [Mull's counsel]: That's the statute. The trial court then instructed the jury in pertinent part as follows: A pedestrian crossing a roadway at any point other than within a marked crosswalk or an unmarked crosswalk at an intersection must yield the right of way to all vehicles on the roadway. A driver of a vehicle with the right of way must use ordinary care or caution to avoid colliding with a pedestrian on the roadway. What does crosswalk mean? That part of a roadway at intersections ordinarily included within the real or projected prolongation of property lines and curb lines or, 3
in the absence of curbs, the edges of the traversable roadway; Number Two, any portion of a roadway at an intersection or elsewhere, distinctly indicated for pedestrian crossing by lines or other markings on the surface; Number Three, notwithstanding the earlier divisions of this section, there shall not be a crosswalk where local authorities have placed signs indicating no crosswalk. Again, Mull never objected to the instruction. The jury returned a verdict in favor of Appellees finding Madkins not negligent in the operation of her motor vehicle. Thereafter, Appellant filed an appeal to the Eighth District Court of Appeals asserting two assignments of error: (1) that the jury verdict was against the manifest weight of the evidence and (2) that the trial court committed plain error in failing to provide a jury instruction on a pedestrian's right of way within a crosswalk. The court of appeals overruled both assignments of error.' In overruling Appellant's first assignment of error, the court of appeals correctly found, inter alia, that the evidence did not demonstrate that Madkins breached any duty of care in operation of her motor vehicle.z It also properly found that there was no authority to support Mull's claim that, as a pedestrian, he had a right to proceed uninterruptedly as a matter of law against a red light in an unmarked crosswalk.3 In overruling Appellant's second assignment of error, the Court of appeals also found that the trial court did not commit "plain error" in failing to provide alternative jury instructions because (1) no alternative instructions were requested by Appellant and (2) Appellant's counsel actually agreed to the instructions provided to the jury.4 The court of appeals even noted that ' See Mull v. Madkins, et al. (Dec. 23, 2010), 8' Dist. No. 94554, p. 7, 8. (Attached to Memorandum in Support of Jurisdiction of Appellant). 2 Id. at p. 4, 4. ' I d. at p. 6 2. Id. at p. 8, 2. 4
even assuming arguendo that other jury instructions should have been provided, the error would have been upon Appellant.5 The trial court and appellate court simply followed and applied well-established precedent to a specific set of facts. Accordingly, not one of the issues presented by Appellant qualifies as an issue of public or great general interest and, therefore, neither warrant this Court's discretionary review. Accordingly, this Court should decline to entertain the instant appeal. THIS CASE IS NOT OF PUBLIC OR GREAT GENERAL INTEREST The Court should decline review because the lower courts' instructions and/or opinions did not depart from well-established precedent or change the law. Rather, the trial court followed and gave the jury standard instructions based on the applicable Ohio Revised Code sections governing the duties and right of way of motorists and pedestrians on public highways-the very instructions to which Appellant agreed. The Court ofappeals also properly reviewed the trial court's instructions under a plain error standard and found no error at all on the part of the trial court in the jury instructions provided. The case herein demonstrates an application of well-delineated law by the courts below to a specific set of facts, and, thus, a review of the same is unwarranted. LAW AND ARGUMENT Argument Against Proposition of Law I: Appellant contends that "the duty of care owed by a driver of a motor vehicle to a pedestrian is, and should be, defined by the circumstances surrounding the accident and not solely by the point at the roadway where the pedestrian elected to cross the street." Appellant's proposition of law has no merit. Appellant contends that the trial court did not properly instruct the jury as to the respective duties and right of way of Appellant/pedestrian and s rd. 5
Appellee/motorist.b Appellant further asserts that this Court should accept this appeal to determine the duty owed by a motorist when a pedestrian is encountered in either a marked crosswalk, an unmarked crosswalk; or where there is neither a marked or unmarked crosswalk.' To the contrary, Ohio law is well-established and clear as to the respective duties and right of way of Appellant/pedestrian and Appellee/motorist while on public highways, and the jury herein was properly instructed on the same at trial. Accordingly, there is nothing of public or great general interest for this Court to review. Foremost, it is imperative to note that Appellant never objected to the jury instructions given of which he now complains. In fact, Appellant even agreed to the jury instructions when the trial court discussed the same with counsel on the record. It is well-established by this Court and Ohio law that a party who fails to raise an argument in the trial court waives his right to raise it on appeal unless there is plain error.8 The court of appeals analyzed the issue and properly found that there was no plain error by the trial court in the jury instructions it provided at trial.9 In so holding, the court of appeals found that "the trial court did not commit plain error in failing to provide alternative instructions when (1) such instructions were not requested, and (2) Mull's counsel agreed to the instructions provided."10 6 Mull v. Madkins, et al. (Dec. 23, 2010), 8' Dist. No. 94554, p. 7, 1. ' Id. s See, e.g., State ex rel. Zollner v. Indus. Comm., 66 Ohio St.3d 276, 278,1993 Ohio 49,611 N.E.2d 830; Barry v. Rolfe (June 26, 2008), 2008 Ohio 3131, P36; Bank ofn. Y. v. Jordan (Aug. 23, 2007), 2007 Ohio 4293. 9 Mull v. Madkins, supra, p. 8, 2. 10 Id. 6
More importantly, Appellant's assertion that this Court should accept this appeal to detennine the duty owed by a motorist when a pedestrian is encountered in either a marked crosswalk, an umnarked crosswalk, or where there is neither a marked or unmarked crosswalk is without merit. Ohio law is well-established and clear as to the respective duties and right of way of pedestrians, whether in a marked or unmarked crosswalk, and motorists while on public highways." Revised Code 4511.01(UU) provides the definition of right of way, R.C. 4511.48(A) prescribes when a pedestrian shall yield the right of way considering marked and unmarked crosswalks, R.C. 4511.18 delineates that a pedestrian shall cross in marked crosswalks where traffic control signals are in operation, and common law and R.C. 4511.48(E) provide that a driver is to exercise ordinary care in the operation of a motor vehicle to avoid a pedestrian. At trial, the jury was properly instructed on the same and properly found that there was no evidence that Appellee Madkins failed to exercise ordinary care. There is nothing for this Court to review or determine because Ohio law is wellestablished and clear. In addition, Appellant's argument that, although Appellee had a green light, she had an absolute duty to yield to him because he was a pedestrian in an unmarked crosswalk is an incorrect statement of the law.12 In asserting the same, Appellant claims: under Ohio Rev. Code 4511.48(A) a motor vehicle does not have a right of way when a pedestrian elects to cross in the confines of marked or unmarked crosswalk." " See, e.g., R.C. 4511.01 (delineating the definition of right of way); R.C. 4511.48(A) (prescribing when a pedestrian shall yield the right of way); R.C. 4511.18 (prescribing that a pedestrian shall cross in marked crosswalks where traffic control signals are in operation). 12 Mull v. Madkins, et al. (Dec. 23, 2010), 8"' Dist. No. 94554, p. 3, 2. 7
To the contrary, R.C. 4511.48 has nothing to do with a motor vehicle's right ofway. Revised Code 4511.48 (A) provides: (A) Every 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, trackless trolleys, or streetcars upon the roadway. [Emphasis added]. Id. The plain language of the statute clearly evidences that it only pertains to a pedestrian's duty to yield the right of way in various circumstances. Therefore, R.C. 4511.48(A) does not support Appellant's argument. Further, Appellant's argument suggests that any pedestrian proceeding in a marked or unmarked crosswalk has the absolute right to cross an intersection regardless of the color of the traffic signals and that any motorist, including a motorist proceeding on a green light, has an absolute duty to detect and yield the right of way to such pedestrian. Clearly, such an argument is a complete degradation of the basic, well-established statutory regulations governing pedestrians and motorists on public highways. As the court of appeals correctly held, there is no authority that Appellant as a pedestrian had an absolute right to proceed across an intersection in an unmarked crosswalk "uninterrupted" as a matter of law, especially since Appellant was proceeding against a red light across eight lanes of traffic at rush hour where there was no marked crosswalk.14 Further, the Court of appeals did not hold that Appellee did not have a "duty to look" as asserted by Appellant. To the contrary, the Court of appeals stated that: the mere fact that Madkins struck Mull does not in of itself establish that she breached a duty of ordinary care. As this court has previously recognized, "a driver need not look for vehicles or pedestrians violating his right of way unless there is a reason to expect it."15 (Emphasis added). Mull v. Madkins, p. 6, 2. Id. at p. 7, 2, citing, Hawkins v. Shell (Jun. 4, 1998), 8`" Dist. No. 72788. 8
Clearly, the court of appeals did not hold that Appellee had "no duty to look." It followed wellestablished Ohio law, both as stated by this Court and numerous Ohio courts of appeal, which provides that a driver need not look for vehicles or pedestrians violating his right ofway unless there is a reason to expect it.16 Even though Appellant claims to this Court that there is conflict and confusion in the appellate districts on this issue, Appellant never requested any alleged conflict to be certified to this Court and, a review of the case law reveals that none exists. Herein, there is no doubt that Appellee had no "reason to expect" Appellant to be crossing the eight lane intersection against a red light when the traffic to her left, the direction from which Appellant came, already proceeded into the intersection. In addition, regardless of whether he entered the intersection within the confines of a marked or unmarked crosswalk or otherwise, Appellant fails to recognize in his arguments to this Court that at the time of the accident he was walking across eight lanes of traffic against a red traffic light during rush hour. He fails to recognize that he was hit by Appellee at a time when she proceeded on a green light with the right of way to enter the intersection after the vehicle to her left-the same direction from which Mull came-had already proceeded into the intersection. In the case sub judice, the lower courts' instructions and/or analysis was quite simple with regard to the instructions to provide to the jury based on the well-established applicable Ohio Revised Code sections governing the duties of motorists and pedestrians on public highways as 16 See, e.g., Lumaye v. Johnson, (1992) 80 Ohio App.3d 141; Deming v. Osinski, (1970) 24 Ohio St.2d 179, 180; Timmins v. Russomano, (1968) 14 Ohio St.2d 124; Hawkins v. Shell, (June 4, 1998), 8'h Dist. No. 72788; Snider v. Nieberding, 2003 Ohio 5715; Higgins v. Bennett (12"' Dist., Mar. 6, 2000), CA99-08-022. 9
required by the facts at hand. Undoubtedly, there was no plain error connnitted by the trial court in instructing the jury, as Appellant did not object but even agreed to the instructions provided. Appellant now seeks to disparage the jury instructions to which he agreed and the findings of the court of appeals for self-serving purposes. There is no basis for Appellant's argument that the law does not adequately provide for the duty and right of way for motorists and pedestrians, whether in marked or unmarked crosswalk or otherwise. Particularly, R.C. 4511, et seq. adequately delineates the duties and right of way of pedestrians and motorists on public highways. Appellant merely seeks this Court to promulgate new law as a basis for him to somehow hold Appellee liable for his complete disregard of the traffic signals and well-establish Ohio law. Accordingly, this Court should decline review of this case. Argument Against Proposition of Law II: Appellant contends that "a pedestrian crossing in an unmarked crosswalk, and in an area where pedestrian traffic is or should be expected, maintains a right of way over a driver of a motor vehicle. Therefore, a jury should be instructed on the pedestrian right of way." Appellant contends that a pedestrian in an unmarked crosswalk has an absolute right of way to proceed over any motor vehicle traffic regardless of traffic signals. This proposition of law is fundamentally flawed in at least two respects. First, it is unsupported by legal precedent. To the extent Appellant has offered legal precedent on this issue in his brief, it is either irrelevant or clearly distinguishable from the facts of this case. Appellant cites to Bell v. Giamarco for the proposition that he had the right of way to proceed across the eight lane intersection against a red light over Appellee who had a green light. The facts of Bell are completely opposite to the facts at hand. In Bell, after the plaintiff put on his case, the trial court granted a directed verdict to a driver who had waved to two children indicating that it was 10
safe to across the street. In overturning the trial court's directed verdict, the court of appeals cited R.C. 4511.46 and stated that there was sufficient evidence to allow the issue of the defendant's liability to go to a jury. Id. at 64. Revised Code 4511.46 provides in pertinent part: When traffic control signals are not in place, not in operation, or are not clearly assigning the right of way, the driver of a vehicle... shall yield the right of way.... to a pedestrian... [Emphasis added]. Id. Clearly, R.C. 4511.46 is not applicable to the case sub judice because herein there indisputably were traffic control signals in place that were operational. Beyond that, this matter proceeded to a jury which considered the applicable law and found Appellee Madkins not negligent. Thus, Bell and R.C. 4511.46 has no application to the case at hand, and Appellant's reliance on the same is without merit. In addition, Appellant's reliance on Jahraus v. Fryman (1954), 129 N.E.2d 200, for the proposition that he had the right of way in crossing the street at the time of the accident is also without merit. The facts of Jahraus are again distinguishable from the facts at hand. In Jahraus, both the plaintiff-pedestrian and the defendant were proceeding on the green light at the time of the accident: WHERE PLAINTIFF, A PEDESTRL4N, WAS LAWFULLY IN THE CROSSWALK WITH THE GREENLIGHT IN HER FAVOR AT THE TIME SHE W A S STR UCK B Y DEFENDANT MAKING A RIGHT TURN, ALSO WITH THE GREEN LIGHT, A CHARGE BY THE COURT, "I CHARGE YOU AS A MATTER OF LAW THAT MARY JAHRAUS IN CROSSING *** ON THE CROSSWALK, IN THE ABSENCE OF KNOWLEDGE TO THE CONTRARY, HAD A RIGHT TO EXPECT AND ASSUME THAT THE DEFENDANT *** WOULD OBEY THE LAW AND YIELD TO HER THE RIGHT OF WAY" WAS CORRECT IN THE LIGHT OF THE FACTS PRESENTED. (SEC. 6307-4GC. ) Id. at syllabus, 4. Clearly, that was not the case herein wherein, at the time of the impact, Appellee had a green light while Appellant did not. 11
Appellantthen cites Havens v. Precision Strip, Inc., 2007 Ohio 4082, P 1-P 14 (Ohio Ct. App., Miami County Aug. 3, 2007) for the proposition that a pedestrian with a right of way has an absolute right to proceed uninterrupted and need not look for vehicles violating his right of way. Havens has absolutely no application to the matter at hand as it involves private property and a company's safety policy as to pedestrians and forklifts in a loading area. Id, at *P2. The court of appeals provided: Before the trial, the parties agreed to a proposed jury instruction that the jury could consider the company safety, policy, which "requires that employees driving forklifts yield the'right of way' to pedestrians." Both parties stipulated that this was Precision Strip's policy, and Stueve also testified to being informed of the policy during safety training. Precision Strip proposed a standard instruction on comparative negligence, proximate cause, burden of proof, and a duty to look and look effectively. Havens filed a memorandum in opposition to the comparative negligence instruction. The jury was instructed that it could consider Precision Strip's safety policy, including the requirement to yield to pedestrians, in determining whether Stueve was negligent in operating the forklift. The trial court was not required to use the "yield the right of way" language [of the Revised Code] even though the parties initially proposed instructions containing that language. The instruction given by the trial court did not mislead the jury in a manner that materially affected Havens' substantial rights. Further, Havens cannot show prejudice because he agreed to an instruction on comparative negligence. Therefore, we find no error in the trial court's failure to define "right of way" or to use the term in its instructions. Certainly, Haven has no application to the case at hand. The legal precedent offered by Appellant is indisputably irrelevant and clearly distinguishable from the facts of this case. Further, Appellant's argument that the foregoing case law evidences a need for "clarity" by this Court is unfounded. The foregoing cases apply different law and reach different conclusions because they are all factually distinguishable from each other requiring different legal applications. Citing to various cases that have no analogy to each other certainly will show varying applications of law. However, Appellant has not shown any "conflicting" case 12
involving a motor vehicle proceeding on a green light and a pedestrian in an unmarked crosswalk walking across eight lanes of traffic at rush hour against a red light. Second, and more importantly, this proposition of law runs contrary to common sense. A pedestrian in an unmarked crosswalk clearly cannot have an "absolute" right of way to cross an intersection when there is a red traffic signal. To hold the same would not only abrogate the basic Ohio law that provides the right of way to all others on public roadways who have a green traffic signal, but it would invite chaos for motorists dodging pedestrians entering public roadways against red traffic signals and a plethora of litigation. Appellant's second proposition of law is unsupported by legal precedent and is contrary to common sense. It is not a public or great general interest. Accordingly, this Court should decline review of this case. CONCLUSION Based upon the foregoing and the lower courts' opinions, Defendants-Appellees respectfully request that this Court decline Plaintiff-Appellant's request for jurisdiction regarding this matter. Resllectfully submitted, S. HA SON (0 29596) 323 Lakeside Place, Suite 380 Cleveland, OH 44113 (216) 912-4070 (T) * (877) 888-1537 (FAX) j hansonkamfam. com Attorney for Defendant-Appellee, Takara Madkins 13
C. RICHAff McDONALD (0017537) BEVERLYA. ADAMS (0074958) DAVIS & YOUNG 1200 Fifth Third Center 600 Superior Avenue, East Cleveland OH 44 1 1 4-2654 (216) 348-1700 (T) * (216) 621-0602 (FAX) rmedonalgdavisvoun e. coin badamsgdavis young.com Counsel for Defendant-Appellee, Westfield Insurance Company 14
CERTIFICATE OF SERVICE A copy of the foregoing is being served via regular U.S. Mail, postage prepaid on this ilth day of March, 2011, upon the following: Stanley L. Josselson, Esq. Marion Building, Suite 411 1276 West Third Street Cleveland, OH 44113 Attorney for Plaintiff-Appellant McDONALD (0017537) BEVERLY A. ADAMS (0074958) DAVIS & YOUNG 1200 Fifth Third Center 600 Superior Avenue, East Cleveland OH 44114-2654 (216) 348-1700 (T) * (216) 621-0602 (FAX) rmcdonalkdavis youn.^om badams@davisyoun g. com Counsel for Defendant-Appellee, Westfield Insurance Company 15