[Cite as Kerns v. Hale,

.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY

JEROMY KERNS, : : Case No. 21CA3970 Plaintiff-Appellant, : : v. : DECISION AND JUDGMENT : ENTRY ANDREW HALE, et al., : : RELEASED: 04/03/2023 Defendants-Appellees. :

APPEARANCES:

Andrew S. Hanes and Robert T. Trujillo, Wheelersburg, Ohio for Appellant.

Susan M. Salyer and John R. Hass, Loveland, Ohio for Appellees.

Wilkin, J.

{¶1} Plaintiff-appellant, Jeromy J. Kerns (“Kerns”), appeals the Scioto

County Court of Common Pleas judgment that granted defendants-appellees,

Andrew Hale (“Hale”) and Holly Hale’s (“Holly”) motion for summary judgment.

Raising six assignments of error, Kerns contests the entry of summary judgment

in favor of Hale claiming there are genuine issues of material fact as to (1)

whether Hale maintained an assured clear distance ahead (“ACDA”) when

operating his vehicle, (2) whether Hale “was negligent in failing to control [his]

vehicle[,]” (3) whether Hale “was negligently operating [his] vehicle[,]” (4) whether

the trial should have awarded him punitive damages, (5) whether the court

should have granted him attorney fees, and (6) whether Hale’s mother, Holly,

negligently entrusted her vehicle to him. Hale filed a brief in response alleging

that the trial court did not err in granting summary judgment in his favor because Scioto App. No. 21CA3970 2

there were no genuine issues of material fact pertaining to any of Kerns’

assigned errors.

{¶2} After reviewing the parties’ arguments, the record, and the applicable

law, we sua sponte find that the trial court’s summary judgment is not a final

appealable order. More specifically, the judgment did not address Kerns’ claim

that Hale did not maintain an “ACDA” at the time of the accident. Therefore, we

dismiss Kerns’ appeal.

FACTS AND PROCEDURAL BACKGROUND

{¶3} On the evening of September 18, 2018, Kerns and Thomas Coe

(“Coe”) were walking westbound on U.S. Route 52 from Wheelersburg to

Portsmouth, a “two-way divided” roadway. At that same time, Hale was driving

home from a high school soccer game also westbound on U.S. Route 52. After

driving under an overpass and preparing to take the exit ramp to State Route

140, Hale’s vehicle struck Kerns and Coe. Hale, who claimed to not have his

phone, left the scene, drove a short distance to his home, where his mother

called first responders, and then he and his parents returned to the scene of the

accident.

{¶4} An Ohio State Highway Patrol trooper took statements from Hale and

Coe, but did not speak to Kerns, who had suffered “incapacitating” injuries. Hale

told the trooper that he was westbound on U.S. Route 52 and as he was

preparing to take the exit to State Route 140, he saw “figures in the middle of the

highway.” He further stated: “I slammed on my brakes and due to the wet

conditions slid and hit the figures.” When the trooper asked him how many Scioto App. No. 21CA3970 3

figures did you see, Hale stated: “I saw a #12 on a shirt, then I saw two people.”

He told the trooper that the figures were “in the middle of the road.” He said that

it was “dark” and raining at the time of the accident. He claimed that his speed

was 55 miles per hour.

{¶5} According to the trooper’s Traffic Crash Report (“report”), Coe

admitted that he had consumed two beers the day of the accident. He also

claimed that he was walking “off the side of the road” at the time of the accident.

Despite Coe’s statement, the report indicates that “[Kerns and Coe] were walking

in the roadway westbound on the U.S. 52 off ramp to SR 140.” The report also

stated that “[Kerns and Coe] were intoxicated/impaired at the time of the crash.

They both had an odor of alcoholic beverage coming from their breath and

person and their speech was slurred. Due to the injuries sustained, no chemical

test could be obtained.” The report went on to state that Kerns and Coe were

“intoxicated pedestrians and would be charged under R.C. 4511.481 once

contact could be made with both.” There is no evidence in the record that either

was charged.

{¶6} In his deposition, Hale recalled the accident: “I just see something in

the road, so I jump on my brakes, reactionary. I was right on top of them when I

see him. It was wet and it was dark. I mean, that’s when I made contact with

them. The truck came to a stop. It stalled out. So it was reactionary.” Hale

claimed that he struck Kerns and Coe just after travelling under an overpass and

prior to the exit for State Route 140. Counsel asked Hale: “Were you able to

discern at that time what they were?” Hale testified: “No. It was just figures. I Scioto App. No. 21CA3970 4

couldn’t tell if it was, you know, a deer crossing the highway or if it was – what it

could have been.” Hale estimated that he was “on the brakes” approximately 50

feet before striking Kerns and his companion. Hale maintained that he did not

comprehend that he had struck persons until they rolled onto his hood after

impact.

{¶7} Hale testified that just prior to the accident he was going “maybe 50

miles per hour” and that the vehicle he was driving was not equipped with

antilock-brake technology or high-beam headlights. He claimed that after impact

the bodies of both Kerns and Coe were on the hood of his vehicle for “maybe 50

to 100 yards,” before one of the bodies was thrown into the middle of the road

and the other landed on the white shoulder line. Hale maintained that visibility

that night was “[n]ot too great with, you know, the overpass being built. It was

kind of shadowed in even more.” Lighting at that interchange had not yet been

installed.

{¶8} Kerns was also deposed. He testified that when he departed

Wheelersburg the day of the accident, he was walking on the berm of U.S. Route

52. He claimed that it was daylight when they departed, but could not remember

the time of day when the accident occurred. He later testified that he could not

recall walking from the Wheelersburg entrance onto U.S. Route 52, or how they

reached the exit for State Route 140. He also stated that he did not recall seeing

the vehicle prior to the accident, or lying on the ground after the accident.

{¶9} On July 2, 2020, Kerns filed a complaint asserting four “claims.” The

first three claims alleged that Hale acted negligently, grossly negligently, Scioto App. No. 21CA3970 5

recklessly, willfully and wantonly and maliciously, which caused Kerns’ injuries.

The fourth claim alleged that Hale’s mother negligently entrusted her vehicle to

Hale.

{¶10} On June 18, 2021, Hale filed a motion for summary judgment.

Kerns filed a memorandum contra. Hale filed a reply. The trial court issued a

judgment entry that granted Hale summary judgment. Construing R.C.

4511.48(A), which essentially addresses the rights of drivers and pedestrians,

the trial court found “there is no evidence that Defendants were negligent or

reckless in their actions surrounding the vehicle-pedestrian accident of

September 17, 2018.” It is this judgment that Kerns appeals.

ASSIGNMENTS OF ERROR

I. THE TRIAL COURT ERRED IN GRANTING DEFENDANT-APPELLEE ANDREW HALE’S MOTION FOR SUMMARY JUDGMENT AS GENUINE ISSUES OF MATERIAL FACT EXIST AS TO WHETHER DEFENDANT-APPELLEE ANDREW HALE WAS NEGLIGENT IN FAILING TO MAINTAIN AN ASSURED CLEAR DISTANCE BEFORE STRIKING PLAINTIFF-APPELLANT WITH THE VEHICLE HE WAS OPERATING

II. THE TRIAL COURT ERRED IN GRANTING DEFENDANT-APPELLEE ANDREW HALE’S MOTION FOR SUMMARY JUDGMENT AS GENUINE ISSUES OF MATERIAL FACT EXIST AS TO WHETHER DEFENDANT-APPELLEE ANDREW HALE WAS NEGLIGENT IN FAILING TO CONTROL THE VEHICLE HE WAS OPERATING.

III. THE TRIAL COURT ERRED IN GRANTING DEFENDANT-APPELLEE ANDREW HALE’S MOTION FOR SUMMARY JUDGMENT AS GENUINE ISSUES OF MATERIAL FACT EXIST AS TO WHETHER DEFENDANT-APPELLEE ANDREW HALE WAS NEGLIGENTLY OPERATING THE VEHICLE AT ISSUE.

IV. THE TRIAL COURT ERRED IN GRANTING DEFENDANT-APPELLEE ANDREW HALE’S MOTION FOR SUMMARY JUDGMENT WITH REGARDS TO PLAINTIFF-APPELLANT’ CLAIM FOR PUNITIVE DAMAGES. Scioto App. No. 21CA3970 6

V. THE TRIAL COURT ERRED IN GRANTING DEFENDANT-APPELLEE ANDREW HALE’S MOTION FOR SUMMARY JUDGMENT AS GENUINE ISSUES OF MATERIAL FACT EXIST REGARDS TO PLAINTIFF-APPELLANT’S CLAIM FOR ATTORNEY FEES.

VI. THE TRIAL COURT ERRED IN DISMISSING DEFENDANT- APPELLANT’S NEGLIGENT ENTRUSTMENT CLAIM AGAINST DEFENDANT-APPELLEE HOLLY HALE AS GENUINE ISSUES OF MATERIAL FACT EXIST AS TO WHETHER DEFENDANT-APPELLEE HOLLY HALE WAS NEGLIGENT IN ENTRUSTING HER VEHICLE TO DEFENDANT-APPELLEE ANDREW HALE.

LAW AND ANALYSIS

{¶11} Before addressing the merits of Kerns’ assignments of error, we

first must determine whether the trial court’s summary judgment is a final

appealable order. Because it appears that the trial court’s summary judgment

failed to address Kerns’ ACDA statute R.C. 4511.21(A), we must consider

whether the summary judgment was a final appealable order. Hale maintains

“Kerns raises an assignment of error for negligence per se, which was never

pleaded.” Therefore, we begin by examining whether Kerns properly raised

the issue of ACDA, which is a negligence per se claim, in the trial court.

1. Kerns Did Not Waive His ACDA Claim

{¶12} “Civ.R. 8(A) requires only a short and plain statement of the claim

that gives the defendant fair notice of the plaintiff's claim and the grounds upon

which it is based.” Ogle v. Ohio Power Co.,

, 2008-Ohio-

7042,

(4th Dist.), citing Illinois Controls, Inc. v. Langham,

,

(1994). “Thus, a plaintiff is not required

to plead the legal theory of the case at the pleading stage and need only give Scioto App. No. 21CA3970 7

reasonable notice of the claim.”

citing State ex rel. Harris v. Toledo,

,

(1995).

{¶13} Several Ohio appellate districts have recognized that “ ‘Ohio law

does not require negligence per se to be pled with particularity because

negligence and negligence per se are closely intertwined concepts and Ohio’s

Civ.R. 8 requires only notice pleading.’ ” Arnett v. Mong,

,

, ¶ 8 (12th Dist.), quoting Base-Smith v. Lautrec, Ltd., 12th Dist. Butler

No. CA2013-07-115,

; see also Gress v. Wechter, 6th

Dist. Huron No. H-12-023,

. Therefore, “ ‘ “when a plaintiff raises

a negligence claim, the defendant is on notice that negligence per se may be

raised, regardless of whether the statute was listed in the complaint.” ’ ” Williams

v. AVI Food Sys., Inc., 8th Dist. Cuyahoga No. 109222,

, ¶ 13,

quoting Collier v. Libations Lounge, L.L.C., 8th Dist. Cuyahoga No. 97504, 2012-

Ohio-2390, ¶ 24, quoting Lone Star Steakhouse & Saloon of Ohio, Inc. v.

Quaranta, 7th Dist. Mahoning No. 01 CA 60,

, ¶ 42. The

Supreme Court of Ohio has repeatedly held that a “[v]iolation of the assured clear

distance ahead statute constitutes negligence per se.” (Emphasis sic.) Pond v.

Leslein,

, 53,

,

, citing Skinner v.

Pennsylvania R.R. Co.,

,

(1933), syllabus; Transp.

Corp. of Indiana v. Lenox Trucking, Inc.,

,

(1968),

paragraph one of the syllabus; and Blair v. Goff–Kirby Co.,

,

(1976).

{¶14} “ ‘A party * * * contesting the opposing party's motion for summary Scioto App. No. 21CA3970 8

judgment must inform the trial court and the other party of the basis of his motion,

so that the court and other party are on notice of all potential issues.’ ” (Ellipses

sic.) Miranda v. Meijer Stores Ltd. Partnership, 2d Dist. Montgomery No. 23334,

, ¶ 15, quoting Crandall v. City of Fairborn, 2d Dist. Greene No.

2002-CA-55,

, ¶ 18. “[G]enerally, a plaintiff cannot enlarge their

claims during the summary judgment phase of litigation and is limited to the

allegations of their pleading.”

, citing Karsnak v. Chess Fin.

Corp., 8th Dist. Cuyahoga No. 97312,

. However, where

plaintiff has put a defendant on notice of a negligence per se claim by filing a

general negligence claim in their complaint, courts have recognized that plaintiff

may initially assert a negligence per se claim in memorandum opposing a motion

for summary judgment. See Mong at ¶ 8, Wechter at ¶ 15, and Williams at ¶ 12-

13.

{¶15} Similar to those cases, Kerns filed a complaint alleging a general

negligence claim. Subsequently, in his memorandum contra to Hale’s motion for

summary judgment, Kerns asserted that Hale violated ACDA. Therefore,

consistent with the aforementioned law, we find that Kerns properly raised his

ACDA claim in the trial court.

2. The Trial Court’s Summary Judgment is Not a Final Appealable Order

{¶16} “The Ohio Constitution limits an appellate court's jurisdiction to

the review of ‘final orders’ of lower courts.” Dill v. Athens, 4th Dist. Athens No.

12CA30,

, citing Section 3(B)(2), Article IV, Ohio

Constitution. Absent a final order, a court of appeals lacks subject-matter Scioto App. No. 21CA3970 9

jurisdiction over its appeal. CitiMortgage, Inc. v. Roznowski,

,

,

.

{¶17} “A trial court's order is final and appealable only if it satisfies the

requirements of R.C. 2505.02 and, if applicable, Civ.R. 54(B).” McCann v.

Webb, 4th Dist. Adams No. 21CA1128,

, citing Denham v.

New Carlisle,

,

(1999), citing Chef Italiano

v. Kent State University,

,

(1989). The order

must satisfy at least one of the “categories of final order set forth in R.C.

2505.02.” Noble v. Colwell,

,

, citing

General Electric Supply Co. v. Warden Electric, Inc.,

,

(1988), syllabus.

{¶18} In pertinent part, R.C. 2505.02(B)(1) provides that an order is final if

it “ ‘affects a substantial right in an action that in effect determines the action and

prevents a judgment[.]’ ”

. “ ‘A “substantial right” for purposes of R.C.

2505.02 is a legal right enforced and protected by law.’ ” Mayberry v. Chevalier,

,

(4th Dist.), quoting State ex rel. White v.

Cuyahoga Metro. Hous. Auth.,

,

(1997),

citing State ex rel. Hughes v. Celeste,

,

(1993), and

. “For an order to ‘determine an action and prevent a

judgment,’ it ‘must dispose of the whole merits of the cause or some separate

and distinct branch thereof and leave nothing for the determination of the court.’ ”

, quoting Turner & Son Funeral Home v. Hillsboro, 2015-Ohio-

1138, at ¶ 10, citing Hamilton Cty. Bd. of Mental Retardation & Dev. Scioto App. No. 21CA3970 10

Disabilities,

,

(1989).

{¶19} “[I]f the case involves multiple parties or multiple claims, the court's

order must [also] meet the requirements of Civ.R.54(B) to qualify as a final,

appealable order.” (Brackets sic.)

, citing

.

Civ.R. 54(B) states: “When more than one claim for relief is presented in an

action * * * the court may enter final judgment as to one or more but fewer than

all of the claims or parties only upon an express determination that there is no

just reason for delay.” However, it is important to note that “the mere incantation

of the required language does not turn an otherwise non-final order into a final

appealable order.”

, citing Cooper v. Cooper,

,

(8th Dist. 1984); Douthitt v. Garrison,

,

(9th Dist. 1981); R & H Trucking, Inc. v. Occidental Fire & Cas. Co,

,

(10th Dist. 1981). See also Milton Banking Co.

v. Adkins, 4th Dist. Jackson No. 19CA07,

.

{¶20} Kerns’ complaint included a general negligence claim. However, in

his memo contra to Hale’s motion for summary judgment, Kerns specifically

alleged that Hale violated his duty to keep an ACDA in the road in violation of

R.C. 4511.21 when he struck Kerns. The trial court found that there was no

genuine issue of material fact that Hale was negligent under R.C. 4511.48(A)and

(E), which addresses certain rights and obligations regarding vehicles and

pedestrians. Scioto App. No. 21CA3970 11

{¶21} However, as discussed supra, Kerns properly raised an ACDA

claim. ACDA “is codified at R.C. 4511.21(A)[.]” Corfee v. Swarthout, 7th Dist.

Columbia No.

,

, * 2. It states:

No person shall operate a motor vehicle, trackless trolley, or streetcar at a speed greater or less than is reasonable or proper, having due regard to the traffic, surface, and width of the street or highway and any other conditions, and no person shall drive any motor vehicle, trackless trolley, or streetcar in and upon any street or highway at a greater speed than will permit the person to bring it to a stop within the assured clear distance ahead.

Originally established by the Supreme Court of Ohio, courts apply the following

test, which if answered affirmatively in its entirety means the driver violated the

ACDA: the driver’s vehicle collided with an object that (1) was ahead of him in his

path of travel, (2) was stationary or moving in the same direction as the driver, (3)

did not suddenly appear in the driver's path, and (4) was reasonably discernible.

Covington v. Butcher,

,

(10th Dist.), citing

Pond v. Leslein,

,

(1995).

{¶22} The trial court’s summary judgment does not mention or discuss the

ACDA, R.C. 4511.21(A), or mention any case addressing ACDA in granting Hale

summary judgment. Therefore, we find that the trial court’s summary judgment

did not resolve Kerns’ claim that Hale violated ACDA. Accordingly, we find that

although the trial court’s summary judgment does affect the parties’ substantial

rights, it does not determine the action or prevent a judgment because Kerns’

ACDA claim remains unresolved. See R.C. 2505.02(B)(1). Therefore, the trial

court’s summary judgment is not a final appealable order under R.C. Scioto App. No. 21CA3970 12

2505.02(B)(1), making the trial court’s inclusion of the Civ.R. 54(B) language in

the summary judgment a non-sequitur in our analysis.

CONCLUSION

{¶23} Because the trial court’s summary judgment is not a final appealable

order, this court lacks jurisdiction to consider Kerns’ appeal. Accordingly, we

dismiss his appeal for lack of jurisdiction.

APPEAL DISMISSED. Scioto App. No. 21CA3970 13

JUDGMENT ENTRY

It is ordered that Kerns’ appeal is DISMISSED and appellant shall pay the costs.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Scioto County Common Pleas Court to carry this judgment into execution.

Any stay previously granted by this Court is hereby terminated as of the date of this entry.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

Abele, J. and Hess, J.: Concur in Judgment and Opinion.

For the Court,

BY: ____________________________ Kristy S. Wilkin, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.