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Hicks v. Consol. Rail Corp.9/13/1993
WALSH, Judge.
This case involves a collision between a train and an automobile at a railroad crossing. Plaintiffs-appellants, Society National Association, guardian of the estate of Kimberly Anne Hicks, and Clyde Hicks, Kimberly's father, appeal an order of the Clermont County Court of Common Pleas granting summary judgment in favor of defendants-appellees, Consolidated Rail Corporation ("Conrail"), Edward Brown, and Richard Barton. Appellants argue that several genuine issues of material fact exist regarding the comparative negligence of the parties and the proximate cause of Kimberly's injuries, and therefore summary judgment was improper.
On April 1, 1990, at approximately 8:00 p.m., an automobile driven by Theresa Hicks ("Hicks"), Kimberly's mother, was struck by a Conrail train operated bsEdward Brown and Richard Barton. The collision occurred at a railroad grade crossing located at State Route 4 in Mechanicsburg, Champaign County, Ohio. As a result of the accident, Kimberly, a two-year-old child who was a passenger in the vehicle, was severely injured. As guardian of Kimberly's estate, Society National Association filed a personal injury action on December 5, 1991 against appellees. Clyde Hicks also filed an action on that same date to recover damages for the loss of the care and services of his child, as well as damages for medical expenses.
Appellants allege, inter alia, that the accident occurred because of Conrail's negligence in maintaining a dangerous and extra-hazardous railroad crossing and its failure to exercise ordinary care. Appellees filed an answer denying appellants' allegations and, as an affirmative defense, alleged that Hicks' negligence was the sole and proximate cause of the accident. Appellees also filed a third-party complaint against Hicks, claiming that they were entitled to either indemnification or contribution from Hicks for any judgment against them. Hicks subsequently filed a counterclaim. Blue Cross and Blue Shield Mutual of Ohio intervened to assert its subrogation interest with respect to Kimberly's medical expenses.
On December 8, 1992, appellees filed a motion for summary judgment seeking the dismissal of appellants' claims. The trial court was subsequently provided with pleadings, depositions, affidavits, photographs and memoranda for and against summary judgment. On February 16, 1992, the trial court granted summary judgment in favor of appellees. The trial court held that Hicks' negligence was the sole and proximate cause of the collision and that appellees did not violate the duty of ordinary care that they owed to Kimberly.
From the trial court's decision, appellants have filed this timely appeal. The crux of appellants' eleven assignments of error is that the court erred in granting Conrail's motion for summary judgment. Under Civ.R. 56(C), summary judgment shall be rendered when there is no genuine issue as to any material fact, the moving party is entitled to judgment as a matter of law, and reasonable minds could come to but one conclusion, that conclusion being adverse to the party against whom the motion is made. The evidence must be construed most strongly in favor of the nonmoving party. Bostic v. Connor (1988), 37 Ohio St.3d 144, 146, 524 N.E.2d 881, 883-884, citing 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.
We turn first to appellants' second assignment of error, which asserts that the trial court erred in finding no genuine issue of material fact as to whether Conrail's failure to remove obstructive vegetation constituted negligence and proximately caused the accident and Kimberly's injuries. Appel
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