Cincinnati Personal Injury Lawyer Law Talk 2

West Chester, Mason, and Cincinnati Ohio

Cincinnnati Personal Injury Lawyer Law Talk 2 is the second in a series of articles on Ohio personal injury law. . The purpose is to give any personal injury accident victim some information about the law behind their potential insurance settlement claim for personal injury. It is general information only and no substitute for consulting with an experienced personal injury lawyer.

The first in the series answered the question "Do I have a claim? " or in other words what is negligence. However you must not only prove that there was negligence, but that the negligence was a proximate cause of the accident and the injury.

Here is a jury charge on proximate cause. a jury charge is the law that the judge tells the jury to apply to a particular case.

A party who seeks to recover for injuries must prove not only that the other party was negligent, but also that such negligence was a proximate cause of the injuries. Proximate cause is an act or failure to act that in the natural and continuous sequence directly produced the injury and without which it would not have occurred.

There may be more than one proximate cause. When the negligent act or failure to act of one party joins the negligence of another to produce the injury , the negligence of each is a cause. It is not necessary that the negligence of each occur at the same time or that there be a common purpose or action.

Where two or more independent, negligent acts combine to produce a single harmful result, and where each of these is a substantial factor in producing that result, the actors are jointly responsible for the result.

The (negligent) act of any other person is not a defense to the negligence of the defendant, unless you find that the other person's (negligent) act was an independent and superseding cause.

Causal connection is broken when another's negligent act, which could not have been reasonably foreseen and is fully independent of the defendant's negligence, intervenes and completely removes the effect of the defendant's negligence, and becomes itself the proximate cause of the injury.

So you can see that not every act of negligence is a cause of an injury.In fact in many case several parties were negligent. They often seek to excuse their negligence by saying that the other party was an independent superseding cause.

Here are some facts from an actual case involving a a auto accident injury.

On the morning of November 20, 2006, Michael Platz, a mechanic employed by Cleveland Metroparks was heading westbound on Route 303, returning to work at the Hinckley Reservation after picking up a part from a store. Mr. Platz encountered a truck and trailer off to the side of the road that he had to pass on the way up a hill. He noticed that the van behind him, driven by Defendant Daniel Kohler, III, narrowly made it around the truck and trailer due to an oncoming truck in the eastbound lane. Mr. Platz proceeded down the hill and began braking in preparation for a left-hand turn onto Medina Line Road. It is disputed whether Mr. Platz utilized his turn signal. Mr. Platz had to come to a complete stop at the intersection as a vehicle was approaching driving eastbound. That vehicle was driven by Plaintiff-Appellee Judith Makowski. Mrs. Makowski's husband, Plaintiff Appellee Roger Makowski was a passenger in the vehicle.

{¶3} Mr. Platz noticed that the van behind him driven by Mr. Kohler was not slowing down. Mr. Platz became concerned that the van would not be able to stop; thus, Mr. Platz began to accelerate in an attempt to prevent Mr. Kohler's vehicle from striking his. Mr. Kohler attempted to "thread the needle" and pass Mr. Platz's vehicle, believing he had enough time to re-enter the westbound lane without striking Mrs. Makowski's vehicle. Mr. Kohler, however, was unsuccessful and struck Mrs. Makowski's vehicle head-on. In addition, Mr. Kohler's vehicle also struck the rear portion of Mr. Platz's truck, slightly damaging the vehicle. Both Mr. and Mrs. Makowski suffered injuries as a result of the accident.

So what do you think the Court decided . Was Mr Kohler negligent for not turning the turn signal on and was that negligence the cause of the injury. Here is what the court said in finding that it was a question for the jury to decide if Kohler was negligent and the proximate cause

{¶19} The Supreme Court has stated that:

"The intervention of a responsible human agency between a wrongful act and an injury does not absolve a defendant from liability if that defendant's prior negligence and the negligence of the intervening agency co-operated in proximately causing the injury. If the original negligence continues to the time of the injury and contributes substantially thereto in conjunction with the intervening act, each may be a proximate, concurring cause for which full liability may be imposed. Concurrent negligence consists of the negligence of two or more persons concurring, not necessarily in point of time, but in point of consequence, in producing a single indivisible injury.

{¶20} "In order to relieve a party of liability, a break in the chain of causation must take place. A break will occur when there intervenes between an agency creating a hazard and an injury resulting therefrom another conscious and responsible agency which could or should have eliminated the hazard." Id. "The test * * * is whether the original and successive acts may be joined together as a whole, linking each of the actors as to the liability, or whether there is a new and independent act or cause which intervenes and thereby absolves the original negligent actor."

"[t]he causal connection of the first act of negligence is broken and superseded by the second, only if the intervening negligent act is both new and independent. The term independent means the absence of any connection or relationship of cause and effect between the original and subsequent act of negligence. The term new means that the second act of negligence could not reasonably have been foreseen.' Thus, the key determination whether an intervening act breaks the causal connection between negligence and injury depends upon whether that intervening cause was reasonably foreseeable by the one who was guilty of the negligence."
"Intervening causation is not proven if the alleged intervening cause was reasonably foreseeable by the one who was guilty of the negligence. It is not necessary that the defendant should have anticipated the particular injury; it is sufficient that his act was likely to result in injury to some one."
{¶22} We agree with the trial court that genuine issues of material fact exist with respect to whether Mr. Platz was negligent in operating his vehicle. Assuming that Mr. Platz did not use his turn signal, there was evidence, which if believed, could allow one to reasonably conclude that Mr. Platz was a concurrent proximate cause of the accident.

{¶23} Mr. Kohler testified in his deposition that he noticed brake lights on Mr. Platz's truck when he was "at the top of the hill, more or less coming down, about halfway." Mr. Kohler stated that he did not realize Mr. Platz was stopped at the bottom of the hill about to make a turn until he did not have enough time to stop. Prior to that point in time, Mr. Kohler believed that Mr. Platz was "just braking down the hill." Mr. Kohler testified that he did not have enough time to stop behind Mr. Platz after he realized that Mr. Platz was stopped to turn and not just braking down the hill. Further, despite seeing Mrs. Makowski's vehicle coming from the other direction, Mr. Kohler believed he had enough time to pass Mr. Platz and avoid a collision with Mrs. Makowski's vehicle.

{¶24} While Mr. Platz testified in his deposition that he had his turn signal on, Mr. Kohler stated that Mr. Platz did not have his turn signal on. Thus, for purposes of summary judgment we will assume that he did not. Mr. Platz testified that:

"I was riding my brakes the whole way down the hill. I had been going that way for the last 30 years almost, for parts. I know people make a run at you coming down that hill; and the ones that are going straight, they're right on your rear; so I know to ride the brakes the whole way down; turn on the turn signal to let them know you're turning, and I know - It happens every time. It's a bad intersection. I know cars coming the opposite way crest that hill, and you think you have a clear shot to make the turn, and you don't because you have to wait for them to go by, and people are right on your rear more times than not. So I know the intersection.

{¶26} Viewing Mr. Platz's testimony in a light most favorable to Mr. and Mrs. Makowski, the trier of fact could reasonably conclude that Mr. Platz knew that the intersection where he was attempting to make a turn was a dangerous intersection that required the use of a turn signal in order to give people behind him warning that he was turning and not merely slowing down due to the incline. Given Mr. Platz's testimony, it would not be unreasonable for a trier of fact to conclude that some type of injury was foreseeable based upon his failure to use his turn signal. . Moreover, it would not be unreasonable for the trier of fact to conclude that Mr. Platz's negligent action of failing to use his turn signal combined with Mr. Kohler's negligent action of driving left of center and that these acts "may be joined together as a whole, linking each of the actors as to the liability[.]" . At the very least, this Court concludes that reasonable minds could reach different conclusions on the issue. Therefore, under the particular facts of this case, the trier of fact could conclude that Mr. Platz's negligence was a concurrent proximate cause.

Is it any wonder that you may want to consult an experienced personal injury lawyer Often times a seemingly simple case is complex. what if you left one car driver out of your car accident injury claim and it turned out they were fully or partially at fault. The potential is you may lose partially or completely even though one negligent auto driver appeared to clearly be at fault for a car accident personal injury.

by Cincinnati personal injury lawyer Anthony Castelli for a free evaluation call 1-800-447-6549