Winegar v. Greenfield Polce Department3/27/2002
uld not have occurred `but for' the defendant's negligence, it still does not follow that there is liability, since other considerations remain to be discussed and may prevent liability. It should be quite obvious that, once events are set in motion, there is, in terms of causation alone, no place to stop." Accordingly, an act is not regarded as a cause of an event if the particular event would have occurred without the doing of the act. Id. at 86, 671 N.E.2d at 228, quoting Prosser & Keeton, Law of Torts (5 Ed.1984) 265, Section 41 (citations omitted).
Therefore, in order for appellant's claim to survive a motion for summary judgment, she must produce affirmative evidence that Officer Schraw's actions or failure to act were the cause in fact and constitute a proximate cause of the deceased's death. See Stibley v. Zimmerman (Aug. 26, 1998), Athens App. No. 97CA51, unreported. A negligent act will only be the proximate cause of those injuries that are the natural and probable consequence of that act. Further, a party will only be liable for injuries that should have been foreseen or anticipated by the wrongdoer to likely flow from his actions or failure to act. See id.; see, also, Mussivand v. David (1989), 45 Ohio St.3d 314, 544 N.E.2d 265; Jeffers v. Olexo (1989), 43 Ohio St.3d 140, 539 N.E.2d 614; Piqua v. Morris (1918), 98 Ohio St. 42, 120 N.E. 300; Harris v. Ohio Dept. of Transp. (1992), 83 Ohio App.3d 125, 614 N.E.2d 779.
In Stibley, supra, fn. 4, we noted that since proximate cause is a question of fact, "summary judgment on the issue of proximate cause ordinarily is inappropriate." See Keister v. Park Centre Lanes (1981), 3 Ohio App.3d 19, 443 N.E.2d 532; see, also, Whiteleather v. Yosowitz (1983), 10 Ohio App.3d 272, 274, 461 N.E.2d 1331, 1335.
However, appellee argues that the doctrine of collateral estoppel applies to the case at bar, thereby preventing appellant from now litigating the issue of proximate cause. Appellee relies on the criminal conviction of James Fillmore for aggravated vehicular homicide to support this position. This criminal conviction stems from the automobile wreck, which killed Benjamin Shiltz. See State v. Fillmore (Nov. 26, 1996), Highland C.P. No. 96-CR-064, unreported.
A determination of whether the doctrine of res judicata or collateral estoppel applies is a question of law, which an appellate court must resolve without deference to the decision of the lower court. See Ray v. Stepp (Aug. 4, 1995), Jackson App. No. 95CA758, unreported; J.R. Mason, Inc. v. S. Bloomfield (Apr. 4, 1995), Pickaway App. No. 94CA13, unreported; In re Estate of Frazier (Feb. 16, 1995), Ross App. No. 93CA1973, unreported.
Appellee states that one of the elements required to be proven in order for a conviction for aggravated vehicular homicide to lie is that the death of the victim was proximately caused by the actions of the accused. See State v. Vaught (1978), 56 Ohio St.2d 93, 94-95, 382 N.E.2d 213, 214 (discussing R.C. 2903.07). Appellee's position is that Fillmore's actions have already been proven to be the proximate cause of Shiltz's death, and appellant is precluded from now trying to prove that Officer Schraw's alleged failure to act was the proximate cause of her son's death.
There are several serious flaws with appellee's argument. First, and foremost, it presumes that there can only be one proximate cause of the deceased's death. The Supreme Court of Ohio stated:
It is a well-established principle of tort law that an injury may have more than one proximate cause. See Prosser and Keeton, Law of Torts (5 Ed.1984) 266-268, Section 41; 2 Restatement of the Law 2d, Torts (1965) 432, Section 433; 1B Larson,
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