McQueen v. Greulich

2014 Ohio 3714

• Court: Ohio Court of Appeals
• Decided: August 28, 2014
• Docket: 100544
• Status: Published

Opinion

[Cite as McQueen v. Greulich, 2014-Ohio-3714.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 100544

KENNETH D. MCQUEEN PLAINTIFF-APPELLANT

vs.

DANIEL GREULICH DEFENDANT-APPELLEE

JUDGMENT: AFFIRMED

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-10-731745

BEFORE: Kilbane, P.J., McCormack, J., and Stewart, J.

RELEASED AND JOURNALIZED: August 28, 2014 ATTORNEY FOR APPELLANT

Gerald R. Walton 2800 Euclid Avenue Suite 320 Cleveland, Ohio 44115

ATTORNEY FOR APPELLEE

Michael F. Farrell Law Office of Michael F. Farrell 55 Public Square Suite 775 Cleveland, Ohio 44113 MARY EILEEN KILBANE, P.J.:

{¶1} Plaintiff-appellant, Kenneth McQueen (“McQueen”), appeals from the jury

verdict in favor of defendant-appellee, Daniel Greulich (“Greulich”). For the reasons set

forth below, we affirm.

{¶2} In June 2010, McQueen filed a personal injury action against Greulich for

injuries he sustained while riding his bicycle, which collided with a car driven by

Greulich.1 The accident occurred on October 30, 2006, in front of the Fish Furniture

store on Lorain Road in North Olmsted, Ohio. The front of Fish Furniture abuts the

sidewalk along Lorain until the parking lot on the east side of the furniture store. The

front east-side corner of the store is completely framed in glass. McQueen alleges that

Greulich was negligent when he failed to stop his car before exiting over the sidewalk and

onto Lorain Road. McQueen, who was proceeding eastbound on his bicycle, only saw

Greulich’s car seconds before impact and could not avoid colliding with the car.

{¶3} The matter proceeded to a jury trial in September 2013, at which the

following relevant evidence was adduced.

{¶4} McQueen testified that he was riding his bicycle down the sidewalk when

Gruelich’s car suddenly appeared. It was stopped and blocked the entire sidewalk. He

testified the car appeared so quickly that he did not have enough time to apply his brakes,

so he collided with Greulich’s car. McQueen compared his speed on the bicycle to a jog.

1Thisis a refiled action that had originally been filed by McQueen in October 2008 then dismissed without prejudice in July 2009. See McQueen v. Greulich, Cuyahoga C.P. No. CV-08-673898. McQueen agreed that the location of the building in relationship to the driveway was “an

obstruction to some extent of vision.”

{¶5} McQueen further testified that after the accident Greulich and Father Neil

Kookoothe (“Father Kookoothe”) exited the car and asked him if he wanted an

ambulance. McQueen “felt okay” so they did not call an ambulance. He testified that

no part of his body struck the car, only his bicycle. Other than the scrapes on his leg,

there were no visible signs of injury, and when he fell off of his bicycle, his head did not

hit the ground

{¶6} The three of them left in Greulich’s car. Greulich took McQueen to

Champion Staffing, a temporary employment agency, where he turned in his work time

sheets. Greulich then dropped him off at his place of employment. McQueen did not

work that day because his employer advised him to go to the urgent care medical facility

across the street. McQueen testified that Greulich gave him another bicycle because his

bicycle was totaled.

{¶7} Father Kookoothe testified that he is a priest at Saint Clarence Church in

North Olmsted, Ohio. On the day of the accident, Greulich drove Father Kookoothe to

Fish Furniture to shop for furniture for the rectory. He testified that Greulich was

driving very slowly as they exited Fish Furniture’s parking lot. They were on the

sidewalk at the apron of the driveway to the parking lot. As he was looking off to the

right, he observed McQueen coming at him on his bicycle. He yelled Greulich’s name,

and then McQueen collided with the front passenger door of Greulich’s car. When they exited the car, McQueen was on the ground. He attempted to assist him up, but

McQueen stood up “on his own volition.” Father Kookoothe offered several times to

take McQueen to the hospital, but McQueen refused.

{¶8} Greulich testified that around 1:30 p.m on October 30, 2006, he drove to Fish

Furniture with Father Kookoothe. Father Kookoothe sat in the front passenger seat. As

they were exiting the parking lot, Greulich slowed downed approximately ten feet before

the sidewalk and looked to his right and left. He testified that he did not observe anyone

in the drive or on the sidewalk. He could not see very far to the right because of the front

corner of the furniture store, so he moved forward and stopped at the sidewalk and then

moved forward, with the front of his car at the edge of Lorain Road.

{¶9} At that point, Father Kookoothe yelled his name as McQueen hit the

passenger door of his car. Greulich put his car in park, and he and Father Kookoothe

exited the car to find McQueen on the ground. Greulich testified that they asked

McQueen if he was okay and if he wanted to go to the hospital. McQueen responded

“no” and that he was “fine.” Consequently, they did not call the police or an ambulance.

Afterwards, Greulich took McQueen’s bicycle to a bike shop, where they informed him

that McQueen’s bicycle is worthless and advised him to throw it away. Greulich also

drove McQueen back to Saint Clarence where Father Kookoothe gave McQueen another

bicycle. Greulich then took McQueen to the temporary employment agency, dropped

McQueen off at his place of employment, and gave McQueen $10 for lunch.

{¶10} At the conclusion of trial, the jury returned a verdict for Greulich. {¶11} McQueen now appeals, raising the following four assignments of error for

review, which shall be discussed together where appropriate.

Assignment of Error One

The trial court erred by inviting error over the objections of the plaintiff by setting forth a jury interrogatory authored by the court that combined an inquiry as to defendant including both negligence and proximate cause in one interrogatory.

Assignment of Error Two

The trial court erred in giving the jury an instruction regarding negligence of the plaintiff when no testimony or evidence as to the plaintiff’s actions constituting such alleged negligence existed in the record.

Assignment of Error Three

The trial court erred in not giving a clear jury instruction regarding defendant that stated if they found that defendant had not stopped at the edge of the sidewalk that defendant was negligent per se.

Assignment of Error Four

The trial court erred in that the judgment of the court is an abuse of discretion and contrary to the manifest weight of the evidence.

Jury Interrogatory

{¶12} In the first assignment of error, McQueen argues that the trial court abused

its discretion by setting forth a jury interrogatory that combined an inquiry including both

negligence and proximate cause.

{¶13} “The standard under which we review a trial court’s decision whether to

submit a proposed interrogatory is abuse of discretion.” Freeman v. Norfolk & W. Ry.,

69 Ohio St.3d 611, 614, 1994-Ohio-326, 635 N.E.2d 310, citing Ragone v. Vitali & Beltrami, Jr., Inc., 42 Ohio St.2d 161, 327 N.E.2d 645 (1975), paragraph one of the

syllabus.

{¶14} In the instant case, the trial court submitted the following interrogatory to

the jury: “[w]as the Defendant negligent and was that negligence a proximate cause of

any injury to the Plaintiff?” The jury answered “no.” McQueen argues this

interrogatory confused the jury because it combined the negligence and proximate cause

issues into one interrogatory, when these are two separate issues. McQueen claims it is

not readily known what the jury intended as its answer to the interrogatory — was

Greulich not negligent or was his negligence not the proximate cause of McQueen’s

injuries?

{¶15} In Phillips v. Dayton Power & Light Co., 111 Ohio App.3d 433, 441, 676

N.E.2d 565 (2d Dist.1996), the court noted that

great care should be taken to avoid combining issues disjunctively in an interrogatory because a “yes” or “no” answer may be construed as referring to either issue. It is proper, however, to phrase an interrogatory disjunctively in certain cases where there is no risk of a nonresponsive answer. In other words, where a “yes” answer to either question alone is enough to support a verdict based upon it. In a negligence case, for example, an interrogatory may validly ask whether the defendant knew or in the exercise of ordinary care ought to have known of a danger. Such disjunctive wording is proper because a “yes” answer to either question alone is enough to support a verdict finding negligence.

{¶16} Here, we find that the disjunctive phrasing used by the trial court was

permissible because the interrogatory’s wording was such that a negative response to

either of the questions alone would have precluded recovery by McQueen. The result would still be the same if the trial court had asked the interrogatory differently by

separating it into two interrogatories.

{¶17} Therefore, the first assignment of error is overruled.

Jury Instructions

{¶18} In the second and third assignments of error, McQueen challenges the

court’s jury instructions with respect to the negligence of McQueen and negligence per

se. McQueen argues that there was no evidence in the record that he did anything

improper. Specifically, Greulich and Kookoothe testified they did not see McQueen or

know how fast he was traveling on his bicycle. Therefore, McQueen maintains that the

trial court should not have instructed the jury that a bicyclist has a duty to exercise due

care to avoid colliding with any vehicle upon the sidewalk, and a bicycle shall not be

operated at a speed greater than is reasonable and proper under the then existing

conditions. McQueen further argues that the trial court erred in not giving a clear

instruction regarding negligence per se because the jury was confused as to why the

instruction was given. McQueen claims the instruction should have been clearer to

address the fact that Greulich failed to stop at the edge of the sidewalk, not that McQueen

was speeding on his bicycle in violation of North Olmsted’s speed ordinance.

{¶19} A jury instruction is proper if it correctly states the law and if it applies in

light of the evidence adduced in the case. Murphy v. Carrollton Mfg. Co., 61 Ohio St.3d

585, 591, 575 N.E.2d 828 (1991). The precise language of a jury instruction, however, is

within the discretion of the trial court. Youssef v. Parr, Inc., 69 Ohio App.3d 679, 690, 591 N.E.2d 762 (8th Dist.1990), citing State v. Scott, 41 Ohio App.3d 313, 535 N.E.2d

379 (8th Dist.1987). Therefore, when reviewing a trial court’s jury instructions, the

proper standard of review for an appellate court is abuse of discretion. Harris v. Noveon,

Inc., 8th Dist. Cuyahoga No. 93122, 2010-Ohio-674, ¶ 20, citing Chambers v. Admr.,

Ohio Bur. of Workers’ Comp., 164 Ohio App.3d 397, 2005-Ohio-6086, 842 N.E.2d 580

(9th Dist.).

{¶20} However, in order to preserve the right to appeal the giving or failure to give

an instruction, a party must object to the instruction before the jury begins deliberating.

See Civ.R. 51(A). In the instant case, McQueen failed to object to the jury instructions

that a bicyclist riding upon a sidewalk has a duty to exercise care and what constitutes

negligence per se. Moreover, in reviewing the record, McQueen proposed those

instructions and collaborated with the court and Greulich in crafting the instruction the

trial court gave to the jury. The trial court stated to both parties’ attorneys that “after

several meetings with my staff attorney along with [my] consultation on various aspects

of the jury instructions * * * [w]e have come up with a set of jury instructions[.]”

{¶21} This court has previously held that an agreed upon jury instruction that

forms the basis for error on appeal is invited error. Ratliff v. Mikol, 8th Dist. Cuyahoga

No. 94930, 2011-Ohio-2147, ¶ 15, citing Patton v. Cleveland, 95 Ohio App.3d 21, 26,

641 N.E.2d 1126 (8th Dist.1994). See also State v. Robinson, 8th Dist. Cuyahoga No.

99917, 2014-Ohio-2973. Under the invited error doctrine, a party may not take

advantage of an error that the party invited or induced. Id. As a result, McQueen may not now seek to use the instruction to his advantage on appeal since he agreed to the jury

instructions of which he now complains.

{¶22} Accordingly, the second and third assignments of error are overruled.

Manifest Weight of the Evidence

{¶23} In the fourth assignment of error, McQueen argues that the judgment is

against the manifest weight of the evidence.

{¶24} 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

against the manifest weight of the evidence. C.E. Morris Co. v. Foley Constr. Co., 54

Ohio St.2d 279, 376 N.E.2d 578 (1978), syllabus. Moreover, the credibility of witnesses

and resolutions of conflicts in evidence are matters for the trier of facts. Northpoint

Props. v. Charter One Bank, 8th Dist. Cuyahoga No. 100210, 2014-Ohio-1430, ¶ 50,

citing G.F. Business Equip., Inc. v. Liston, 7 Ohio App.3d 223, 225-226, 454 N.E.2d 1358

(10th Dist.1982). Therefore, a reviewing court should not reverse a trial court’s decision

if it merely has a difference of opinion on questions of credibility or the weight of the

evidence; rather, a trial court’s decision should be overturned only when there is no

competent and credible evidence to support that decision. Seasons Coal Co. v.

Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984).

{¶25} Specifically, McQueen argues the judgment is against the manifest weight

of the evidence because Greulich’s trial testimony is in contradiction to his deposition testimony that he did not stop at the sidewalk and there was no evidence of any

negligence by McQueen. We note that

[t]he knowledge a trier of fact gains through observing the witnesses and the parties in any proceeding (i.e., observing their demeanor, gestures, and voice inflections and using these observations in weighing the credibility of the proffered testimony) cannot be conveyed to a reviewing court by a printed record. In re Satterwhite, 2001-Ohio-4137, 2001 WL 1001017, *3 (2001), citing Trickey v. Trickey, 158 Ohio St. 9, 13, 106 N.E.2d 772 (1952). In this regard, the reviewing court in such proceedings should be guided by the presumption that the trier of fact’s findings were indeed correct. Seasons Coal Co., supra. As the Supreme Court of Ohio has stated, “it is for the trial court to resolve disputes of fact and weigh the testimony and credibility of the witnesses.” Bechtol v. Bechtol, 49 Ohio St.3d 21, 550 N.E.2d 178 (1990).

Edwards v. Bolden, 8th Dist. Cuyahoga No. 97390, 2012-Ohio-2501, ¶ 32.

{¶26} In the instant case, Greulich testified at trial that he did stop his car at the

sidewalk. At his deposition, he was never asked directly if he stopped his car at the

sidewalk. He testified that he stopped when he got to Lorain Road and his “car was

probably coasting up to the corner.” McQueen testified at trial that Greulich’s car

“moved quickly” and “was right out in front of me before I knew it.” He then testified

that as he was riding his bicycle down the sidewalk, he observed Greulich’s car for the

first time stopped on the edge of the sidewalk and the end of the street, blocking the entire

sidewalk. While McQueen’s argument is based on conflicting evidence to attempt to

show the verdict was against the manifest weight of the evidence, the jury observed both

McQueen’s and Greulich’s demeanor and behavior, heard both McQueen’s and

Greulich’s explanation of the accident, and found Greulich’s testimony to be more credible. Accordingly, we find the judgment is not against the manifest weight of the

evidence.

{¶27} Therefore, the fourth assignment of error is overruled.

{¶28} Judgment is affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said court to carry this judgment into

execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

MARY EILEEN KILBANE, PRESIDING JUDGE

TIM McCORMACK, J., and MELODY J. STEWART, J., CONCUR