Shaffer v. Fite

Walsh, Judge. Plaintiff-appellant, Janet Shaffer (“appellant”), administrator of the estate of Tony H. Shaffer (“Shaffer”), and defendant-appellant, Kristi N. Fite, appeal a decision of the Brown County Court of Common Pleas that granted summary judgment in favor of defendant-appellee, Marshall Hardyman, in a wrongful death action. The action was brought against Fite and Hardyman by appellant *375 and arose out of a January 17, 1991 vehicular collision on State Route 62 in Brown County. The record shows that at approximately 10:00 a.m. on January 16,1991, Shaffer borrowed Hardyman’s 1942 Ford Ferguson farm tractor in order to perform work at the farm of Harold Bowman. It is not disputed that when Hardyman loaned Shaffer the tractor, the vehicle lacked both a slow-moving-vehicle (“SMV”) emblem and taillights. Upon receiving the tractor, Shaffer informed Hardyman he would return the tractor at 12:00 noon that same day. Shaffer failed to return the tractor on January 16,1991 as promised, prompting Hardyman to visit Shaffer at Bowman’s farm at 9:00 a.m. the following morning. At that time, Shaffer told Hardyman he would return the tractor “in a little bit.” Nine hours later, while driving the tractor in the darkness south on State Route 62 toward Hardyman’s residence, Shaffer was struck in the rear by an automobile operated by Fite. Shaffer died as a result of injuries sustained in the collision. Appellant thereafter initiated the instant action. In response, Fite filed a cross-claim against Hardyman. On October 29, 1992, Hardyman filed a motion for summary judgment with respect to both appellant’s complaint and Fite’s cross-claim. In an amended entry issued February 26, 1993, the court awarded Hardyman summary judgment, finding no genuine issue of material fact for trial. This appeal followed. In their only assignment of error, appellant and Fite argue that the court erred in granting Hardyman’s motion for summary judgment. For the reasons that follow, we agree and reverse the trial court’s ruling. It is well established in Ohio that summary judgment may only be granted when the following three factors have been established: “ ‘ * * * (1) that there is no genuine issue as to any material fact; (2) that the moving party is entitled to judgment as a matter of law; and (3) that reasonable minds can come to but one conclusion, and that conclusion is adverse to the party against whom the motion for summary judgment is made, who is entitled to have the evidence construed most strongly in his favor.’ ” Bostic v. Connor (1988), 37 Ohio St.3d 144, 146, 524 N.E.2d 881, 884, quoting Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 66, 8 O.O.3d 73, 74, 375 N.E.2d 46, 47, See, also, Civ.R. 56(C). The burden of showing that no genuine issue exists as to any material fact falls upon the party moving for summary judgment. Toledo’s Great Eastern Shoppers City, Inc. v. Abde’s Black Angus Steak House (1986), 24 Ohio St.3d 198, 201-202, 24 OBR 426, 428-430, 494 N.E.2d 1101, 1103-1104. *376 The complaint filed by appellant sounds in negligence. To recover in a negligence action, it is incumbent upon a plaintiff to show (1) that the defendant had a duty, recognized by law, requiring him to conform his conduct to that standard; (2) that the defendant failed to conform his conduct to that standard; and (3) that the defendant’s conduct proximately caused the plaintiff to sustain a loss or injury. Brauning v. Cincinnati Gas & Elec. Co. (1989), 54 Ohio App.3d 38, 40, 560 N.E.2d 811, 813-814. Our analysis begins with the recognition that R.C. 4513.02(A) defines the duty that Hardyman, as owner of the tractor, owed to Shaffer, the tractor’s operator. In part, that statute states: “No person shall * * * knowingly permit to be driven or moved, on any highway any vehicle * * * which is in such unsafe condition as to endanger any person.” Appellant and Fite contend that Hardyman breached the duty set forth by R.C. 4513.02(A) when Hardyman knowingly permitted Shaffer to operate an unsafe tractor. They premise their argument that the tractor was unsafe to operate on a highway on Hardyman’s failure to equip the tractor with an SMV-emblem and taillights when he loaned Shaffer the tractor and that these omissions violated R.C. 4513.11. That statute states: “(A) All vehicles * * * including [agricultural tractors] * * * shall, at the times specified in section 4513.03 of the Revised Code, * * * be equipped with two lamps displaying red light visible from a distance of not less than one thousand feet to the rear of the vehicle, or as an alternative, one lamp displaying a red light visible from a distance of not less than one thousand feet to the rear and two red reflectors visible from all distances of six hundred feet to one hundred feet to the rear when illuminated by the lawful lower beams of headlamps. « # * * “(B) All * * * farm machinery * * * upon a street or highway * * *, which is designed for operation at a speed of twenty-five miles per hour or less * * * shall display a triangular slow-moving vehicle emblem (SMV). The emblem shall be mounted so as to be visible from a distance of not less than five hundred feet to the rear. * * * ” [3J As a general rule, the violation of a statute passed for the protection of the public is negligence per se. Roszman v. Sammett (1971), 26 Ohio St.2d 94, 55 O.O.2d 165, 269 N.E.2d 420, paragraph one of the syllabus; Chesrown v. Bevier (1920), 101 Ohio St. 282, 289, 128 N.E. 94, 96. As R.C. 4513.11 was enacted for the public safety, violation of the statute constitutes negligence as a matter of law. Economy Fire & Cas. Co. v. Craft Gen. Contractors, Inc. (1982), 7 Ohio App.3d 335, 337, 7 OBR 432, 434, 455 N.E.2d 1037, 1040. *377 We disagree with Fite and appellant’s assertion that the failure of Hardyman to equip the tractor with taillights was violative of R.C. 4513.11(A) and made the tractor unsafe to operate. The unambiguous language of R.C. 4513.-11(A) reveals that the lighting devices mandated by the statute are required only during the times specified in R.C. 4513.03. Under R.C. 4513.03, taillights are mandatory equipment from “one-half hour after sunset to one-half hour before sunrise, and at any other time when there are unfavorable atmospheric conditions or when there is not sufficient natural light to render discernible persons, vehicles, and substantial objects on the highway at a distance of one thousand feet ahead.” Herein, it is not disputed that Shaffer borrowed the tractor during the daylight hours on January 16, 1991 and that he notified Hardyman he would return the tractor during the daytime that same day. Similarly, when Hardyman visited Shaffer the following morning, Shaffer again assured Hardyman that the tractor would be returned during the day. Given these circumstances, it is clear that Shaffer gave Hardyman the impression that if the tractor were to be operated on a highway, it would only be during those hours that taillights were not statutorily required. In fact, Hardyman testified at his deposition that he informed Shaffer not to operate the tractor at night because the vehicle was not equipped with taillights. In light of such evidence, we fail to detect a violation of R.C. 4513.11(A) on Hardyman’s part. However, construing the evidence most strongly in appellant and Fite’s favor, we find that reasonable minds could disagree on whether Hardyman knowingly permitted Shaffer to operate an unsafe tractor because the tractor lacked the SMV emblem. According to R.C. 4513.11(B), when farm machinery is operated upon a street or highway, the machinery must display a triangular SMV emblem. The purpose of the statute is to ensure that vehicles upon a roadway are given sufficient warning that the farm machinery they are approaching is travelling at a speed of less than twenty-five m.p.h. In the case at bar, there is no dispute that Hardyman loaned Shaffer farm machinery that did not display the SMV emblem. Unlike taillights, which are only necessary when certain atmospheric and lighting conditions are present, the SMV emblem is required at all times for farm machinery designed for operation at a speed of twenty-five m.p.h. or less, travelling within the highway. Thus, while it may have been safe for the tractor to be operated within the highway during the daylight hours without taillights, reasonable minds could come to different conclusions concerning the SMV emblem as to whether Hardyman knowingly permitted Shaffer to drive the tractor, within a highway, to Bowman’s *378 farm without the emblem. Reference by R.C. 4513.11(D) only to a “slow-moving vehicle emblem mounting device” does not alter Hardyman’s duty. Accordingly, it is our belief that a genuine issue of material fact exists on the issue of whether Hardyman breached his duty under R.C. 4513.02(A) when he loaned Shaffer a tractor that lacked the SMV emblem. To rule otherwise would be to hold, as a matter of law, that an owner of farm machinery has exercised ordinary care under every possible circumstance when the owner loans the machine to another without a statutorily required SMV emblem. Such a proposition of law is unsound and contrary to common sense. On the basis of the aforementioned, this court finds that the lower court improperly awarded Hardyman summary judgment. Consequently, the single assignment of error set forth by appellant and Fite is well taken and the judgment of the lower court is reversed. Judgment reversed and cause remanded. William W. Young, J., concurs separately. Jones, P.J., dissents.