Login | December 10, 2018

Driver not negligent in fatal Lorain County pedestrian-van collision

TRACEY BLAIR
Legal News Reporter

Published: May 17, 2018

The 9th District Court of Appeals recently affirmed a finding that an appellee was not negligent when she struck and killed a pedestrian in Lorain County.

Case summary shows that Kahla Mancuso left a grocery store around 6 p.m. on Jan. 9, 2013 headed east toward home via Cooper Foster Park Road, a two-lane, 35 mph road, in a 1991 GMC van.

At the same time, Nicola Wade was also walking east along the road with her back to traffic, and was hit by the van.

Wade’s estate administrator, Michelle Wade, then filed a wrongful death complaint accusing Mancuso of negligently operating her van.

Before the 2016 trial, the estate asked that the testimony of Dr. Alfred Staubus, the state’s forensic toxicology expert, be excluded.

The trial judge allowed Staubus to testify but did not allow the doctor to discuss any use of the pedestrian’s cocaine.

The doctor testified for the jury that the victim had been in the euphoria stage of alcohol influence when she was struck. The estate argued that the doctor’s statement constituted hearsay since the witness he relied upon to make that finding had since died.

The estate also took issue with Staubus’ opinion that it was common sense to not walk with traffic.

The trial court overruled the estate’s motion, finding no prejudice in the admission of the testimony.

The estate appealed after the jury found the driver was not negligent.

The dispute centered on where the accident occurred.

The estate’s evidence showed Wade was hit while she was on the road’s shoulder. Mancuso’s version of events showed her car only left the road following the collision.

Mancuso testified that she was driving the speed limit with her low-beam headlights on and never left the road. She denied using her phone while driving and said she did not see Wade before the collision.

Dash cam video conflicted with the statements that Mancuso did not use her phone at the time of the collision.

A Lorain police officer testified that the evidence shows Mancuso drove off the road, struck Wade on the shoulder and then traveled off the road.

An estate expert gave the opinion that Mancuso did not see Wade before hitting her and that the distance Mancuso traveled on the shoulder after impact was the amount of time it took her to realize she had hit something.

Staubus said no drugs or alcohol was found in Mancuso’s system.

Wade’s blood alcohol content was .038. She also tested positive for a therapeutic range of clonazepam, which he testified did not have an impact on the crash.

The doctor added that Wade’s behavior – which a witness described as walking in and out of the road – showed she was in the euphoria stage.

On cross-examination, the estate noted that the autopsy report showed Wade was a chronic alcoholic, which could mean a higher tolerance for alcohol.

Henry Lipian, a traffic crash reconstructionist, testified for Mancuso.

According to Lipian, it had been dark out at the time of the crash and artificial lighting from businesses would not have been enough to make a pedestrian visible. He testified that Wade had been dressed in dark-colored clothes and boots and a white hat.

His evidence concluded Wade was likely on the road at the time of the impact rather than the soft shoulder based on the location of the debris.

Although dash cam video conflicted with the statements that Mancuso did not use her phone at the time of the collision, the appellate court found the jury could have reasonably concluded that she was not a distracted driver.

In addition, the lower court did not err by admitting Staubus’s testimony.

“The estate has not explained why Wade’s blood alcohol level would be irrelevant to Mancuso’s affirmative defense or why, if it was relevant to the affirmative defense, the probative value of the evidence would be substantially outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading the jury,” wrote appellate Judge Donna Carr.

Appellate judges Jennifer Hensal and Julie Schafer concurred.

The case is cited Wade v. Mancuso, 2018-Ohio-1563.


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