[Cite as Hilgefort v. Stewart, 2011-Ohio-253.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT SHELBY COUNTY
MICHAEL HILGEFORT,
PLAINTIFF-APPELLEE, CASE NO. 17-10-13
v.
RAYMOND STEWART, OPINION
DEFENDANT-APPELLANT.
Appeal from Shelby County Common Pleas Court Trial Court No. 07CV000457
Judgment Affirmed
Date of Decision: January 24, 2011
APPEARANCES:
Kimberly S. Kislig for Appellant
Timothy S. Sell for Appellee
PRESTON, J. Case No. 17-10-13
{¶1} Defendant-appellant, Raymond Stewart, appeals the Shelby County
Court of Common Pleas’ judgment finding him civilly liable for an assault and
battery upon the plaintiff-appellee, Michael Hilgefort. We affirm.
{¶2} On December 28, 2007, Hilgefort filed a complaint alleging that, on
November 21, 2007 at the Moose Lodge in Sidney, Ohio, Stewart committed
assault and battery against him by picking him up in the air and slamming him to
the floor with great force and violence. (Doc. No. 1, ¶1). Hilgefort alleged that he
sustained injuries, including a dislocated elbow, as a result of Stewart’s tortious
conduct. (Id. at ¶2). Hilgefort sought compensatory damages of $25,000, punitive
damages of $75,000, reasonable attorney fees, costs of the proceedings, and any
other relief the trial court deemed equitable. (Id. at ¶5).
{¶3} On January 25, 2008, Stewart filed an answer denying the
allegations in the complaint, asserting several affirmative defenses, including self-
defense, and asserting a counter-claim of assault against Hilgefort. (Doc. No. 7).
{¶4} On February 11, 2008, Hilgefort filed a reply denying Stewart’s
counter-claim allegations. (Doc. No. 11).
{¶5} On September 8, 2008, Stewart filed a motion to bifurcate the issue
of punitive damages pursuant to R.C. 2315.21(B)(1). (Doc. No. 54). The trial
court granted the motion to bifurcate on October 8, 2008. (Doc. No. 63).
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{¶6} On October 22, 2009, the matter proceeded to a bench trial, and the
trial court found Stewart civilly liable to Hilgefort for assault and battery,
awarding Hilgefort $20,000.00 in compensatory damages. (Doc. No. 106). On
February 5, 2010, the trial court filed its findings of fact and conclusions of law.
(Doc. No. 117).
{¶7} On February 3, 2010, Stewart filed a motion for summary judgment
on the issue of punitive damages. (Doc. No. 116). On February 23, 2010,
Hilgefort filed a memorandum in opposition. (Doc. No. 120). On March 8, 2010,
the trial court granted Stewart summary judgment on the issue of punitive
damages. (Doc. No. 121).
{¶8} On April 7, 2010, Stewart filed a notice of appeal. (Doc. No. 126).
Stewart now appeals raising four assignments of error for our review. We elect to
combine Stewart’s first, second, and fourth assignments of error for discussion.
ASSIGNMENT OF ERROR NO. I
THE TRIAL COURT ERRED WHEN IT HELD THAT DEFENDANT-APPELLANT (“RAYMOND”) COMMITTED ASSAULT AND BATTERY AGAINST THE PLAINTIFF- APPELLANT (“HILGEFORT”) BECAUSE RAYMOND DID NOT INTEND TO INJURE HILGEFORT.
ASSIGNMENT OF ERROR NO. II
THE TRIAL COURT ERRED WHEN IT HELD THAT RAYMOND DID NOT ACT IN SELF-DEFENSE WHEN RAYMOND WAS NOT AT FAULT FOR CREATING THE SITUATION AND RAYMOND HAD AN HONEST BELIEF
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THAT HE WAS IN IMMEDIATE DANGER OF BODILY HARM.
ASSIGNMENT OF ERROR NO. IV
THE TRIAL COURT ERRED WHEN IT HELD THAT HILGEFORT DID NOT ASSAULT RAYMOND BECAUSE HILGEFORT DID PLACE RAYMOND IN FEAR OF PHYSICAL HARM.
{¶9} In his first assignment of error, Stewart argues that the trial court
erred by finding that he committed assault and battery against Hilgefort, because
he did not intend to harm Hilgefort but only “to keep [Hilgefort] from further
harming himself.” Stewart argues that his intent was not to injure Hilgefort but to
merely “subdue him” because of the uncomfortable situation.
{¶10} In his second assignment of error, Stewart argues that the trial court
erred by failing to find he acted in self-defense since Hilgefort created the
situation by approaching him, smacking his hands on the table, and yelling
profanity at him.
{¶11} In his fourth assignment of error, Stewart argues that the trial court
erred in failing to find that Hilgefort assaulted him when Hilgefort placed his
hands near Stewart’s face while yelling profanity at him.
{¶12} An assault in tort is ‘“the willful threat or attempt to harm or touch
another offensively, which threat or attempt reasonably places the other in fear of
such contact.”’ Retterer v. Whirlpool Corp. (1996), 111 Ohio App.3d 847, 854,
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677 N.E.2d 417, abrogated on other grounds, quoting Smith v. John Deere Co.
(1993), 83 Ohio App.3d 398, 406, 614 N.E.2d 1148. A key element of assault is
that the alleged tortfeasor “knew with substantial certainty that his or her act
would bring about harmful or offensive contact.” Id. Battery results when an
individual “acts intending to cause a harmful or offensive contact, and when a
harmful contact results.” Love v. Port Clinton (1988), 37 Ohio St.3d 98, 99, 524
N.E.2d 166. To constitute offensive contact, the contact must be “offensive to a
reasonable sense of personal dignity.” Id.
{¶13} ‘“[T]he elements of self-defense where the defendant is only alleged
to have used non-deadly force are: (1) the defendant was not at fault in creating
the situation giving rise to the affray, and (2) the defendant (even if mistaken) had
a bona fide belief (which means a belief that was both objectively reasonable and
subjectively honest) that he was in imminent danger of any bodily harm (whether
it be deadly or non-deadly).”’ Struthers v. Williams, 7th Dist. No. 07 MA 55,
2008-Ohio-6637, ¶15, quoting State v. Morris, 7th Dist. No. 03MO12, 2004-Ohio-
6810, at ¶21. See, also, State v. Densmore, 3d Dist. No. 7-08-04, 2009-Ohio-
6870, ¶26; 2 OJI-CR 417.27.
{¶14} “A defendant who only used non-deadly force to defend himself
need not fear death or great bodily harm in order to use non-deadly force in self-
defense.” Williams at ¶16, citing In re Morton, 7th Dist. No. 01-BA-29, 2002-
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Ohio-2648, ¶23. Rather, the defense still applies if the force used was reasonable
under the circumstances to protect one-self. Id. Furthermore, there is no duty to
retreat before using non-deadly force in self-defense like in deadly force cases.
Williams, 2008-Ohio-6637, at ¶16, citing Morton at ¶25. Self-defense, however, is
inappropriate if the force used is “so grossly disproportionate as to show revenge
or as criminal purpose.” State v. Hendrickson, 4th Dist. No. 08CA12, 2009-Ohio-
4416, ¶33, citing State v. Nichols, 4th Dist. No. 01CA2775, 2002-Ohio-415. See,
also, 2 OJI-CR 421.23.
{¶15} In civil cases, “judgments supported by some competent, credible
evidence going to all the essential elements of the case will not be reversed by a
reviewing court as being against the manifest weight of the evidence.” C.E. Morris
Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279, 376 N.E.2d 578, at syllabus.
See, also, State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264,
¶24; Reinhardt v. Fostoria Plumbing, Heating, & Elec. Supply, Inc., 3d Dist. No.
13-10-08, 2010-Ohio-4825, ¶15. When applying this standard, we must “presume
that the findings of the trier of fact are correct” since “the trial judge had an
opportunity ‘to view the witnesses and observe their demeanor, gestures and voice
inflections, and use these observations in weighing the credibility of the proffered
testimony.’” Wilson, 2007-Ohio-2202, at ¶24, quoting Seasons Coal Co., Inc. v.
Cleveland (1984), 10 Ohio St.3d 77, 80-81, 461 N.E.2d 1273. Reversal based on
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an error of law is legitimate; however, the trial court’s decision should not be
reversed based on a “difference of opinion on credibility of witnesses and
evidence * * *.” Id., quoting Seasons Coal, 10 Ohio St.3d at 81; Knipp v. Sadler,
3d Dist. No. 6-09-04, 2009-Ohio-4444, ¶7.
{¶16} At trial, Michael Hilgefort testified that he was employed as a
bartender at the Sidney Moose Lodge on November 21, 2007. (Oct. 22, 2009 Tr. at
20-21). He testified that lodge members and their guests are required to wear
proper attire, which requires men to wear their hats “straight,” i.e. with the bill
forward. (Id. at 21-23). Hilgefort indentified plaintiff’s exhibit 1-1 as the social
quarter rules and regulations that are posted in the lodge, and he testified that
lodge employees are expected to enforce these rules. (Id. at 23, 25); (Plaintiff’s
Ex. 1-1). He testified that Jackie Blakely and Connie Baker were bartending with
him on the evening of November 21, 2007. (Id. at 24-25). Hilgefort testified that
he observed Stewart approach the bar with his hat turned backwards and order a
beer from Connie. (Id. at 26). Connie asked Stewart to turn his hat around, and
Stewart reluctantly complied. (Id. at 27). Hilgefort testified that he later saw
Stewart sitting at a table with lodge members Rob Thorne and Corey Shreves with
his hat turned backwards. (Id. at 26, 28). Hilgefort testified that, as he was taking
a beer to another table, he asked Stewart to turn his hat around, but Stewart left his
hat on backwards. (Id. at 28). Hilgefort testified that he returned to the same table
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with another drink moments later and asked Stewart again to turn his hat around,
but Stewart ignored him and looked away. (Id.). After Hilgefort dropped off the
drink, he returned to Stewart’s table and again asked him to turn his hat around
and told Stewart that he would have to leave if he did not turn his hat around. (Id.
at 29). Hilgefort testified that two or three people sitting at the table asked Stewart
to turn his hat around, but Stewart refused. (Id.). At this point, Hilgefort told
Stewart that “he’d have to get the hell out of here,” but Stewart continued to
ignore him, even though he had lifted his voice. (Id.). At that point, Hilgefort told
Stewart “to get the F out of [here],” after which Stewart stood up and told
Hilgefort if he wanted his hat turned around he would have to turn it around for
him. (Id. at 30). Hilgefort told Stewart “it wasn’t [Hilgefort’s] damned hat, that it
was his hat, and it was his responsibility to turn it around.” (Id.). According to
Hilgefort, Stewart then “picked [him] up and threw [him] on the ground.” (Id.).
Hilgefort testified that he remembered his right hand was behind his back, he was
on the floor, and Stewart was pushing his head against the floor. (Id. at 30-31).
Lodge patrons pulled Stewart off of Hilgefort. (Id. at 31). Hilgefort further
testified that he was about five feet ten and one-half inches (5’ 10½”) tall and
weighed about one hundred eighty-five (185) pounds. (Id.). Hilgefort denied
throwing any punches at Stewart, threatening Stewart, or approaching Stewart in a
physical manner. (Id. at 31-32). Hilgefort testified that he raised his voice to
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Stewart and used offensive language to get Stewart’s attention because “[i]n the
years dealing with people that’s been drinkin’, sometimes you gotta raise your
voice to get their attention.” (Id. at 32).
{¶17} Hilgefort testified that Stewart caused serious pain to his arm—on a
scale of one to ten, with ten being the highest, a “level ten” of pain. (Id. at 33).
Hilgefort testified that he saw his family physician, who happened to be at the
lodge that night, and he recommended that Hilgefort go to the hospital because his
arm could be broken or dislocated. (Id.). When Hilgefort arrived at the hospital,
the doctors gave him some pain medication and preformed a reduction to re-set his
dislocated elbow. (Id. at 35-36). Hilgefort testified that he followed-up with Dr.
Stover upon his release from the hospital, and Dr. Stover recommended physical
therapy. (Id. at 37-38). Hilgefort testified that he visited Dr. Stover four to five (4-
5) times and did six to eight (6-8) weeks of physical therapy. (Id. at 38). Hilgefort
testified that he was in severe pain during the first three weeks of physical therapy,
and the pain level dropped to a seven or eight after that. (Id. at 39). Hilgefort
testified that his right elbow was injured and he was right-handed, and he could
not lift anything heavier than a gallon milk jug for several weeks, which affected
his employment. (Id. at 40-41). Hilgefort testified that his arm felt pretty good
now, though once or twice a week his elbow was stiff for a couple of hours when
he first woke up, and once in a while his elbow would “pop” when he was lifting
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something above his head. (Id. at 42-43). Hilgefort testified that he lost over fifty
(50) hours of work due to his injuries. (Id. at 45). He further testified that he
makes $7.36 per hour plus tips, which average about fifty to sixty dollars ($50-
$60) per day. (Id.). Hilgefort testified that his medical bills were paid through
workers’ compensation, and he was not asking for any money for the medical
bills. (Id. at 46-47).
{¶18} On cross-examination, Hilgefort testified that the Moose Lodge rules
are posted on the front board and again at the bottom of the stairs. (Id. at 48).
Hilgefort testified that Stewart was not a member of the lodge, and he was not sure
whether Stewart knew about the rules. (Id.). Hilgefort denied ever having trouble
with other lodge patrons over the rules but admitted that he has enforced the rules
even when he was not on duty. (Id. at 49-50). Hilgefort admitted that he was
prescribed Lexapro for depression, but denied drinking any alcohol the night of
the incident. (Id. at 50-51). Later Hilgefort testified that he did have one half of a
mixed drink after the incident to help calm himself down and help ease the pain.
(Id. at 54). Hilgefort testified that he did not take an ambulance to the hospital
because he did not want to pay for it. (Id. at 55). Hilgefort also testified that he
thought that Stewart heard him ask him to remove his hat since several other
persons at the table heard his request. (Id.). Hilgefort testified that Dr. Stover told
him he could return to work with limitations in a day or two. (Id. at 57). Hilgefort
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testified that he lost an estimated three hundred dollars ($300.00) in tips due to
missing work. (Id. at 58).
{¶19} Robert Thorne testified that he was a member of the Moose Lodge,
and he knew about the rule prohibiting men in the lodge from wearing their hats
backwards. (Id. at 61-62). Thorne testified that he knew Hilgefort and that Stewart
has been his friend since 1987 or 1988. (Id. at 62). Thorne testified that Stewart
did not usually get into bar fights. (Id. at 62-63). Thorne testified that Stewart sat
at his table when he came into the lodge, and he thought Stewart had two beers
before the incident occurred. (Id. at 63). Thorne was not aware of whether
Hilgefort had asked Stewart to turn his hat around a few times. (Id. at 64). Thorne
testified that he saw Hilgefort leaning over and yelling at Stewart, “turn your F-in’
hat, I told you to turn your F-in’ hat around.” (Id.). Thorne testified that Hilgefort
was so loud that everyone in the bar stopped and looked to see what was
happening. (Id. at 65). Thorne testified that Hilgefort’s hands were on the table
“and then he put his finger up and said I told you to turn your F-in’ hat around.”
(Id.). Thorne testified that Hilgefort put his finger in Stewart’s face when Stewart
stood up. (Id.). He also testified that he had never seen Hilgefort act like that in
the lodge before. (Id.). Thorne testified that Stewart “wrapped” Hilgefort up and
took him to the ground after Hilgefort put his finger in Stewart’s face. (Id. at 66).
When asked if he thought Stewart was trying to hurt Hilgefort, Thorne testified,
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“[n]o. I don’t think – if he was trying to hurt him, I think he would have swung at
him, took a punch at him.” (Id. at 67). When asked what he thought Stewart was
trying to do, Thorne testified, “[s]ubdue him or – I don’t know. I can’t –it’s kind
of – I’m not sure what was going through his head. I don’t – I think he may have
been uncomfortable with the situation and – and he reacted in the way that he – he
felt was appropriate.” (Id.). When asked if he would have felt threatened by
Hilgefort, Thorne testified, “I would have probably been a little bit threatened by
that act.” (Id.).
{¶20} On cross-examination, Thorne testified that he met Stewart at the
YMCA in town, and that he used to lift weights with Stewart. (Id. at 68). Thorne
testified that Stewart was a casual “off and on” friend who he would “see here and
there.” (Id. at 69). Thorne testified that he talked with Stewart about the lodge
incident about four or five times before testifying. (Id. at 71). Thorne did not
know how long Stewart had been at the lodge before he arrived or how much
Stewart had had to drink that night. (Id. at 71-72). Thorne further testified that, at
the time of the incident, Stewart was seated at a different table than he, and he was
engaged in a conversation with other lodge members. (Id. at 75). Thorne did not
know whether Hilgefort had asked Stewart to turn his hat around earlier that night,
and he did not advise Stewart to turn his hat around either. (Id. at 76). Thorne
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agreed that Stewart was much larger than Hilgefort. (Id. at 77). When asked about
whether Hilgefort had his finger in Stewart’s face, Thorne testified as follows:
Q: And your testimony is that [Hilgefort] had his finger on – in Mr. Stewart’s face while he was seated, is that correct? A: He leaned in, he yelled at him, and he said I told you to take your F-in’ hat off. Q: Okay. A: And Raymond stood up at that point. Q: And –and then tackled [Hilgefort]? A: Correct. Q: Correct? A: (Witness nods head in the affirmative) Q: So when Mr. Stewart stood up, there was no longer a finger in the face? A: The finger was in his face when he stood up and then he tackled him. Q: The finger was in his face as he was standing up? A: Yes. Q: Okay. And then once he stood up – [Hilgefort] didn’t have his finger in his face once Mr. Stewart stood up, did he? A: He leaned in and yelled, and then [Stewart] stood up and [Hilgefort] said I told you to turn your F-in’ hat around, and that’s when it happened. Q: So I thought – I thought the finger was in the face while he was still seated there? A: No. Q: It was when he stood up? A: When he stood up. He leaned in and yelled at him. Q: All right. And so [Hilgefort] pointed his finger at him and said I told you to take your F-in’ hat off, is that correct? A: Right. Q: Or turn it around? A: Right. Q: And in response to that, Mr. Stewart took [Hilgefort] to the ground? A: Correct.
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(Id. at 77-79). Thorne did not see Stewart or Hilgefort throw any punches, and
Thorne did not know whether Stewart became violent when he drank alcohol. (Id.
at 79-80). On re-direct examination, Thorne testified that he was approximately
eight feet from the incident when it occurred. (Id. at 84). Thorne further testified
that Stewart was never violent when he drank alcohol before. (Id.).
{¶21} Robert Guillozet testified that he was at the Moose Lodge the night
of November 21, 2007. (Id. at 85-87). Guillozet testified that he saw Stewart
sitting at a table “partyin’ and havin’ shots.” (Id. at 88). Guillozet testified that,
later in the evening, he went up to the bar to get a couple drinks and was standing
there talking with Doc, when he heard Hilgefort say something about telling a guy
to turn his hat around. (Id. at 90). Guillozet testified that he saw Stewart grab
Hilgefort by the arm and they both went down to the ground. (Id.). Guillozet
testified that he did not see Stewart stand up, but saw him already standing facing
Hilgefort, and it looked like the two were talking. (Id. at 91). He did not see
Hilgefort make any gestures towards Stewart’s face. (Id. at 92). When asked what
Stewart did to Hilgefort, Guillozet testified, “* * * they were standin’ facin’ each
other; and as I recall, [Stewart] had both hands, one on each side of [Hilgefort’s]
arm; and then the next thing I know, they were down and out of sight.” (Id.). On
cross-examination, Guillozet testified that he had two or three beers that night, and
did not recall seeing Hilgefort drinking. (Id. at 94).
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{¶22} Detective Scott White of the Sidney Police Department testified that
he received a call around 11:34 p.m. the evening of November 21, 2007
concerning a disturbance at the Moose Lodge. (Id. at 95-96). Detective White
testified that he obtained a statement from Hilgefort and a description of the
suspect who had fled the scene. (Id. at 97). Detective White and Officer Baker
went to Stewart’s home and knocked on the door, but no one answered the door.
(Id. at 98). Detective White testified that he noticed wet footprints on the porch,
and that they could hear someone inside the home, though they did not know who
it was. (Id.). Detective White testified that it was raining or snowing that night,
and that it appeared that someone had just entered the home prior to them arriving.
(Id. at 99). Detective White testified that they arrived at Stewart’s home at 12:09
a.m. (Id.). On cross-examination, Detective White testified that he did not identify
himself as a police officer when he knocked on Stewart’s door. (Id. at 100). He
further testified that they asked Hilgefort if he wanted a medic to transport him to
the hospital, but Hilgefort indicated that he would have someone take him. (Id. at
102). Detective White did not take pictures of Hilgefort’s injured elbow. (Id.).
On re-direct, Detective White testified that none of the witness statements were
inconsistent with what Hilgefort indicated had happened that night. (Id. at 104).
He also indicated that none of the witnesses he talked with stated that Stewart
acted in self-defense. (Id.). He further testified that he learned through his
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investigation that Stewart fled out the back door and ran south through the golf
course after the incident. (Id. at 105).
{¶23} Jeffery Westover testified that he was at the Moose Lodge on the
evening of November 21, 2007 with his fiancée Deb Holthaus. (Id. at 110-11).
Westover testified that he was sitting at the bar straight across and a little to the
right of where the incident took place that night. (Id. at 111). Westover testified
that he did not see Hilgefort make any intimidating gestures toward Stewart,
though Hilgefort may have pointed toward the door. (Id. at 112). Westover
testified that the two men “weren’t face-to-face very long and then, all of a
sudden, [Stewart] got him around the neck and took his feet out from under him
and they just went out of sight, down below the table line.” (Id.). Westover
testified that he then went around the bar and they were both off of the floor by
that time, and he saw Stewart heading towards the back door. (Id. at 113). On
cross-examination, Westover denied ever being barred from the lodge, though he
admitted his brother had been barred about three times. (Id. at 114). Westover
denied that his brother or he had ever been barred from the lodge for fighting with
Hilgefort. (Id.). Westover testified that it was crowded in the lodge that night and
loud, so he could not hear what was being said between Hilgefort and Stewart. (Id.
at 118). Westover testified that Hilgefort and Stewart’s faces were as close as six
to eight inches apart when they were standing facing each other and that they both
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appeared angry. (Id.). Westover further testified that there was a rule prohibiting
profanity, and the rule applied to lodge employees as well. (Id. at 119). He further
testified that employees were not allowed to consume alcohol while working, and
he had seen Hilgefort drinking while he was working but could not say whether it
was an alcoholic drink or not. (Id. at 120).
{¶24} Jackie Blakely testified that she was employed as a bartender and
waitress at the Moose Lodge and works with Hilgefort. (Id. at 126-27). She
testified that she was responsible for enforcing the lodge rules as a bartender and
waitress at the lodge. (Id. at 127). She testified that she was bartending the
evening of November 21, 2007, along with Hilgefort and Connie Baker, the
manager. (Id. at 128). Blakely testified that, earlier in the evening before the
incident, Connie asked Stewart to turn his hat around. (Id. at 129). According to
Blakely, Stewart turned his hat around at first but later turned his hat around
backwards again. (Id.). Blakely testified that she saw Stewart and Hilgefort about
two to three inches apart and then the two of them were on the ground. (Id. at
130). Blakely testified that she did not observe Hilgefort shove, swing, raise a
hand, or point a finger at Stewart. (Id.). Blakely testified that after several people
pulled Stewart off of Hilgefort, Stewart ran out the back door. (Id. at 131). On
cross-examination, Blakely testified that she did not hear the conversation between
Hilgefort and Stewart because it was loud in the lodge. (Id. at 134). She testified
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that she did not know whether Hilgefort was drinking alcohol that night while
working, though she has seen him drink alcohol while working before. (Id. at
135).
{¶25} After Blakely testified, plaintiff offered into testimony the video
deposition of Dr. Stover and offered into evidence the exhibits that Dr. Stover
referenced at his deposition. (Id. at 136). Dr. Stover testified that he has been a
practicing orthopedic surgeon since 1987. (Stover Depo. at 3-4). Dr. Stover
testified that he first saw Hilgefort on November 23, 2007 after Hilgefort had
sustained a dislocated elbow at his place of employment. (Id. at 5-6). Dr. Stover
testified that he prescribed Hilgefort Motrin for pain. (Id. at 8). He testified that
Hilgefort followed-up with his office seven or eight times, until Hilgefort was
released from his care on July 16, 2008. (Id. at 11). Dr. Stover testified that, based
upon his examination and training, the November 21, 2007 incident caused
Hilgefort’s dislocated elbow. (Id. at 12-13). Dr. Stover testified that he prescribed
physical therapy for Hilgefort as well. (Id. at 14). He further testified that
Hilgefort lacked the ability to extend his elbow fully, which was a permanent
injury. (Id.). Dr. Stover testified that Hilgefort may have some future discomfort
and pain intermittently in the elbow. (Id. at 15). Dr. Stover testified that it is
possible that Hilgefort will experience arthritis, stiffness, and loss of motion in his
elbow as a result of his injury. (Id. at 16).
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{¶26} Thereafter, the plaintiff rested, and the defense presented the
testimony of three witnesses. (Id. at 140-41). Stewart testified that he went to the
lodge with some friends on November 21, 2007. (Id. at 141). He testified that he
was not a lodge member, he was not familiar with the lodge rules, and he did not
see the rules posted in the lodge. (Id. at 141-43). Stewart testified that he entered
the lodge between 9:30 and 10:00 p.m. in the evening and sat with Rob and Steve
Thorne. (Id. at 143). He testified that he had two beers that evening, and he was
not intoxicated that night. (Id. at 143-44). Stewart testified that, when he walked
up to the bar to buy a round of beers for the table, Connie asked him to turn his hat
around, so he did. (Id. at 144). Stewart testified that after he sat down at the table
he must have turned his hat back around “subconsciously” because he always
wears his hats backwards since it was a “bad habit.” (Id.). He testified that he did
not purposely turn his hat around backwards to break the lodge rules, and he
noticed several other younger guys in the lodge with their hats on backwards. (Id.
at 145). Stewart testified that the first time Hilgefort asked him to turn his hat
around he told him that there were other guys in the lodge with their hats on
backwards, and he should have them turn their hats around as well. (Id.). After
that, Hilgefort screamed at the top of his lungs three times to turn his “F-in’ hat
around,” smacking his hands on the table, according to Stewart. (Id.). Stewart
testified that he felt threatened by Hilgefort’s screaming, and Hilgefort was three
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or four inches from him when he was screaming at him. (Id. at 146). Stewart
further testified that Hilgefort was “makin’ a gesture towards my hat or my hair or
my, you know, my face” when he was screaming at him. (Id.). Stewart testified
that, at that time, he grabbed Hilgefort by the arm and underneath the armpit, and
put Hilgefort on the ground. (Id. at 146-47). Stewart testified that he did not
intend to hurt Hilgefort but wanted to “keep him from hurt – further harming
himself.” (Id. at 147). Stewart testified that after the incident, he ran home in the
pouring down rain. (Id. at 148). Stewart testified that he did not recall a knock at
the door of his home that night, and he did not know the police were outside of his
door at any time. (Id. at 149). Stewart testified that a neighbor informed him that
the police were at his house that night, so he called the police department. (Id. at
149-50). Stewart insisted that he did not intend to hurt Hilgefort, only to subdue
him. (Id. at 150). He admitted that he pled guilty to a criminal assault charge for
the incident because he did not want to risk having a felony record since he served
in the military. (Id. at 151). Stewart testified that he would probably react the
same today as he did at the time of the incident because he felt threatened, but he
was sorry that Hilgefort was injured. (Id. at 151).
{¶27} On cross-examination, Stewart testified that he was six foot one inch
(6’1”) tall and weighed about two hundred twenty eight (228) pounds at the time
of the incident. (Id. at 152). Stewart testified that he does lift weights but
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primarily does cardio work outs since he is older. (Id.). Stewart testified that he
was at the lodge to drink and meet up with friends. (Id. at 155). Stewart testified
that he was alone at the table when the incident occurred because his wife and her
friend were outside smoking. (Id. at 158). Stewart also testified that Connie never
told him about the lodge rules when she asked him to turn around his hat. (Id.).
Stewart denied that other people at the table told him to turn his hat around and
that Hilgefort ever told him to leave. (Id. at 161-62). Stewart denied being angry
with Hilgefort when he stood up, and testified that he stood up to face Hilgefort
because he felt threatened. (Id. at 166). Stewart testified that Hilgefort did not
swing at him or threaten him with physical harm. (Id. at 169). Stewart testified
that, while he was outside in the parking lot after the incident, Jackie told him that
the police had been called. (Id. at 173-74). On re-direct, Stewart again testified
that he felt like he was defending himself against Hilgefort. (Id. at 189).
{¶28} Steve Thorne, a lodge member present the night of the incident,
testified that he has been friends with Stewart since the mid-to-late 1980’s and has
never known him to fight with others. (Id. at 191-92). Thorne testified that he
thought Stewart had one or two beers that night, and that he was seated at the table
when Hilgefort approached Stewart. (Id. at 192-93). Thorne testified that
“[Hilgefort] put his hands on the table and said something. I was talking to Rob.
He said somethin’; and next thing I know, [Stewart] stood up and [Hilgefort]
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screamed or yelled take your F-ing hat off; and about that time, [Hilgefort]
reached up and [Stewart] took him to the ground.” (Id. at 193). When asked if he
would have felt threatened by Hilgefort, Thorne testified that he would have felt
“uncomfortable.” (Id. at 195). On cross-examination, Thorne testified that he
heard Hilgefort ask Stewart to turn his hat around because he was seated at the
same table as Stewart. (Id. at 198). He testified that he talked to Stewart about the
incident a couple times, and he acknowledged that the situation could have been
handled differently on both sides. (Id. at 201). Thorne testified that he saw
Hilgefort raise his hand toward Stewart, but he did not know whether Hilgefort
was “going for the hat or if he was going for [Stewart’s] face.” (Id. at 203).
Thorne could not recall exactly how Stewart took Hilgefort to the ground, but he
testified that he thought Stewart was trying to “contain” a possible situation. (Id. at
206-07).
{¶29} Jan Siepel testified that she used to work at the lodge with Hilgefort.
(Id. at 211-12). Siepel testified that she had commonly witnessed Hilgefort drink
alcohol while working. (Id. at 212). Siepel testified that the lodge enforced the
attire rules strictly one day and loosely other days. (Id. at 213). Siepel testified
that Hilgefort confronted a lodge patron who was eating a meal with his two little
daughters about his wearing a sleeveless shirt, even though Hilgefort was not
working. (Id. at 214). According to Siepel, Hilgefort told the man that he would
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have to leave the lodge if he did not have a different shirt he could wear. (Id.).
Siepel testified that the man just asked for his bill and left the lodge. (Id). Siepel
also testified that Hilgefort wanted to fight with another patron one night in the
lodge parking lot, and that Hilgefort was on duty at the time. (Id. at 215). Siepel
further testified that she talked with Guillozet about the incident between Stewart
and Hilgefort, and Guillozet described the way Stewart took Hilgefort to the
ground as a police maneuver. (Id. at 217). Siepel also testified that the lodge had
a rule against using profanity. (Id. at 218). On cross-examination, Siepel testified
that she was not at the lodge the night of the accident. (Id.). She testified that she
did approach lodge patrons about their attire, but she never had anyone tell her no.
(Id. at 219-20). Siepel testified that one of her duties while working at the lodge
was to ask patrons to comply with the rules, and she testified that Hilgefort would
say the “F word” when he would ask patrons to follow the rules. (Id. at 221-22).
{¶30} Thereafter, the defense rested, and the plaintiff declined to offer
rebuttal testimony. (Id. at 225-26).
{¶31} With the relevant testimony set forth, we turn to Stewart’s
arguments. Stewart first argues that the trial court erred by finding that he
committed an assault and battery against Hilgefort. We disagree. As an initial
matter, Stewart pled guilty to a misdemeanor criminal assault for his actions at the
lodge. (Oct. 22, 2009 Tr. at 151); (Plaintiff’s Ex. 6-4). Additionally, the testimony
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at trial demonstrated that Stewart was much larger in height and weight than
Hilgefort, and the trial court, who was able to observe both men, found that
Stewart appeared stronger than Hilgefort. (Oct. 22, 2009 Tr. at 30-31, 152); (Feb.
5, 2010 JE, Doc. No. 117). The testimony also revealed that, after Hilgefort
informed Stewart that he would have to leave the lodge if he did not turn his hat
around, Stewart stood up, directly facing Hilgefort within five to six inches of
Hilgefort’s face, and told Hilgefort if he wanted the hat reversed, he would have to
turn it around for him. (Oct. 22, 2009 Tr. at 30, 118, 130). When Hilgefort refused
to turn Stewart’s hat around, Stewart grabbed Hilgefort’s arm, twisted it, and
threw Hilgefort to the ground, causing his right elbow to dislocate. (Id. at 30, 79,
90-92, 112, 146-47). Therefore, the record contains competent, credible evidence
from which the trial court could have concluded that Stewart willfully threatened
or attempted to harm or touch Hilgefort offensively and that Hilgefort was placed
in fear of such harm or contact. Retterer, 111 Ohio App.3d at 854, abrogated on
other grounds, quoting Smith, 83 Ohio App.3d at 406. The record also contains
competent, credible evidence that Stewart acted intending to cause a harmful or
offensive contact, and a harmful contact resulted; to wit: Hilgefort’s dislocated
elbow. Love, 37 Ohio St.3d at 99.
{¶32} Next Stewart argues that the trial court erred by failing to find he
acted in self-defense. The trial court concluded that Stewart failed to establish that
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he was not at fault for creating the situation and failed to prove he had reasonable
grounds to believe he was in immediate danger of bodily harm. (Feb. 5, 2010 JE,
Doc. No. 117). The trial court also specifically found that the testimony in support
of Hilgefort’s claim was more credible than the testimony offered in support of
Stewart’s claim. (Id.). We will not second guess the trial court’s credibility
determinations, nor will we reverse based on a “difference of opinion on
credibility of witnesses and evidence * * *.” Wilson, 2007-Ohio-2202, at ¶24,
quoting Seasons Coal Co., 10 Ohio St.3d at 81; Knipp, 2009-Ohio-4444, at ¶7.
Aside from that, the record contains competent, credible evidence to demonstrate
that Stewart was at fault in creating the situation by failing to turn his hat around
after being told to do so several times by two different lodge employees. The only
testimony in support of Stewart’s claim of self-defense was his own testimony,
which the trial court found not credible. When Stewart’s friend, Thorne, was
asked whether he would have felt threatened by Hilgefort’s actions, he testified he
would have merely felt “uncomfortable.” (Oct. 22, 2009 Tr. at 195). Additionally,
the testimony reveals that Stewart stood up to confront Hilgefort escalating the
situation, and that Stewart was larger and stronger than Hilgefort. Finally, the trial
court specifically found that the force used by Stewart was more than reasonably
necessary and greatly disproportionate to any perceived or apparent danger. (Feb.
5, 2010 JE, Doc. No. 117). This finding is supported by competent, credible
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evidence, and as such, self-defense was not available to Stewart. See Hendrickson,
2009-Ohio-4416, at ¶33, citing Nichols, 2002-Ohio-415. See, also, 2 OJI-CR
421.23. For all these reasons, we cannot find that the trial court erred by failing to
find that Stewart acted in self-defense.
{¶33} Stewart further argues that the trial court erred by failing to find that
Hilgefort assaulted him. The record contains competent, credible evidence to
support the trial court’s finding that Hilgefort did not threaten or attempt to harm
Stewart. (Feb. 5, 2010 JE, Doc. No. 117). Hilgefort testified that he told Stewart
to turn his hat around, but Stewart refused at which point Hilgefort told Stewart
that “he’d have to get the hell out of here.” (Oct. 22, 2009 Tr. at 29-30). When
Stewart refused further, Hilgefort told Stewart “to get the F out of there,” after
which Stewart stood up and told Hilgefort that if he wanted his hat turned around
to turn it around for him. (Id. at 30). Although there was testimony that Hilgefort
pointed his finger at Stewart (or at Stewart’s hat), several witnesses testified that
Hilgefort did not make any attempts to strike or touch Stewart. (Id. at 31-32, 65,
92, 112, 130, 146, 193). Although Stewart testified that he felt threatened by
Hilgefort, the trial court did not find Stewart’s testimony credible. (Feb. 5, 2010
JE, Doc. No. 117). Since the record contains competent, credible evidence in
support of the trial court’s finding that Hilgefort did not assault Stewart, we will
not reverse the trial court’s decision.
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{¶34} For all these reasons, Stewart’s first, second, and fourth assignments
of error are overruled.
ASSIGNMENT OF ERROR NO. III
THE TRIAL COURT ERRED WHEN IT AWARDED AN EXCESSIVE AMOUNT OF $20,000.00 FOR HILGEFORT’S PAIN AND SUFFERING AND TIME LOST FROM WORK BECAUSE HILGEFORT ONLY MISSED A FEW DAYS OF WORK AND HIS PAIN AND SUFFERING WAS MINIMAL.
{¶35} In his third assignment of error, Stewart argues that the trial court
awarded an excessive amount of compensatory damages to Hilgefort for his lost
wages and pain and suffering. We disagree.
{¶36} The assessment of damages is within the province of the trier of fact,
and a reviewing court is not at liberty to disturb the trier of fact’s assessment
absent an affirmative finding of passion and prejudice or a finding that the award
is manifestly excessive. See Moskovitz v. Mt. Sinai Med. Ctr. (1994), 69 Ohio
St.3d 638, 655, 635 N.E.2d 331, citing Toledo, Columbus & Ohio River RR. Co. v.
Miller (1923), 108 Ohio St. 388, 402-03, 140 N.E. 617.
{¶37} The trial court found that Hilgefort lost $371.68 in wages, $300.00
in tips, and incurred $7,749.07 in reasonable and necessary medical expenses,
which were paid by Ohio Workers’ Compensation. (Feb. 5, 2010 JE, Doc. No.
117, ¶¶21-22). The trial court also found that Hilgefort: suffered “great pain” as a
result his injury; underwent a reduction process to relocate his elbow for which he
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was given pain medication; had completed physical therapy with pain and
suffering; lost range of motion and strength in his elbow and had continued pain
and suffering; and suffered permanent injury and limitations in his elbow, which
will result in future pain and medical treatment. (Id. at ¶¶16-20). 1
{¶38} The trial court’s award of $20,000.00 for Hilgefort’s lost wages and
pain and suffering was not “manifestly excessive.” Hilgefort testified that Stewart
caused “level ten” pain to his arm at the time of his injury. (Oct. 22, 2009 Tr. at
33). Hilgefort testified that he visited Dr. Stover four or five times and did six to
eight weeks of physical therapy. (Id. at 38). Hilgefort testified that he was in
severe pain during the first three weeks of physical therapy, and the pain level
dropped to a seven or eight after that. (Id. at 39). Hilgefort testified that his right
elbow was injured and he was right-handed, and Hilgefort testified that he could
not lift anything heavier than a gallon milk jug for several weeks, which affected
his employment. (Id. at 40-41). Hilgefort testified that his arm felt pretty good
now, though once or twice a week his elbow will be stiff for a couple of hours
when he first wakes up, and once in a while his elbow will pop when he is lifting
something above his head. (Id. at 42). Dr. Stover testified that Hilgefort may
have some future discomfort and pain intermittently in his elbow. (Id. at 15).
1 The trial court used Hilgefort’s medical expenses and permanent injuries for purposes of determining Hilgefort’s pain and suffering. As noted at oral argument, the compensatory damage award did not include the medical expenses or Hilgefort’s permanent injuries. (See Oct. 22, 2009 Tr. at 13-15).
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He also testified that it is possible that Hilgefort will experience arthritis, stiffness,
and loss of motion in his elbow as a result of his injury. (Id. at 16). Based upon
the record, we cannot conclude that the trial court’s compensatory damages award
was “manifestly excessive.” Moskovitz, 60 Ohio St.3d at 655, citing Miller, 108
Ohio St. at 402-03.
{¶39} Stewart’s third assignment of error is, therefore, overruled.
{¶40} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
ROGERS, P.J. and WILLAMOWSKI, J., concur.
/jnc
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