Osler v. City of Lorain

504 N.E.2d 19, 28 Ohio St. 3d 345, 28 Ohio B. 410, 1986 Ohio LEXIS 858

• Court: Ohio Supreme Court
• Decided: December 26, 1986
• Docket: No. 86-284
• Status: Published

Opinions

Celebrezze, C.J.

This case requires us to examine and apply fundamental principles of the law of negligence. An integral part of our analysis is the basic and well-settled concept that negligence is without legal consequence unless it is a proximate cause of an injury. See, generally, Prosser & Keeton, Law of Torts (5 Ed. 1984) 272-280, Section 42.

We are first called on to determine whether there was error in the trial court’s decision to grant the city’s motion for judgment notwithstanding the verdict. A favorable ruling on such a motion is not easily obtained, as this court explained in Posin v. A.B.C. Motor Court Hotel (1976), 45 Ohio St. 2d 271, 275 [74 O.O.2d 427]:

“The test to be applied by a trial court in ruling on a motion for judgment notwithstanding the verdict is the same test to be applied on a motion for a directed verdict. The evidence adduced at trial and the facts established by admissions in the pleadings and in the record must be construed most strongly in favor of the party against whom the motion is made, and, where there is substantial evidence to support his side of the case, upon which reasonable minds may reach different conclusions, the motion must be denied. Neither the weight of the evidence nor the credibility of the witnesses is for the court’s determination in ruling upon either of the above motions.” (Emphasis added.)

It is apparent to us that in granting the city’s motion for judgment notwithstanding the verdict, the trial court improperly weighed the evidence of causation in this case. Even if we were to agree with the trial court’s assessment that Osier was driving while intoxicated in violation of former R.C. 4511.19(A),¹ we cannot sanction that court’s leap to the conclusion that Osier’s intoxication barred recovery for his injury.

The trial court found, and the city asserts on appeal, that the city had no duty to keep its streets open and free from nuisance to those who violate the statute which forbids driving while under the influence of alcohol. However, we believe the court of appeals put the issue in this case in its proper perspective as follows:

“The primary question is not whether the city owes a duty to drunk drivers, but whether the city negligently failed to keep the street in repair and free from nuisance. The next question, assuming negligence is found, is whether the city’s failure to meet its statutory duties was the proximate cause of * * * [Osier’s] injuries or whether * * * [Osier’s] injuries were the result of his own intoxicated state.”

It has long been recognized that a person’s intoxication will not bar his recovery in a negligence action unless the intoxication is the proximate cause of his injury. This court itself has refused to declare an individual negligent, merely because of his intoxication, absent a causal relation between intoxication and injury.² Parton v. Weilnau (1959), 169 Ohio St. 145, 151-152 [8 O.O.2d 134]. And we are not alone.

The Supreme Court of Hawaii reached a similar conclusion in a case involving an intoxicated driver and a negligence action against a city for alleged defective maintenance of a highway. In McKenna v. Volkswagenwerk Aktiengesellschaft (1977), 57 Hawaii 460, 558 P. 2d 1018, two sisters were killed in a highway collision with the allegedly intoxicated driver of an oncoming car. The personal representatives of the decedents sued, among others, the city of Honolulu, alleging that the city’s negligent maintenance of the highway caused the fatal crash. The city contended that it was insulated from liability because the intoxicated driver, and not its negligent maintenance, had caused the accident. The state supreme court overturned a directed verdict in the city’s favor, stating that it had not been shown conclusively that the driver’s negligence, rather than the city’s, was the cause of the collision. The McKenna court’s reasoning is consistent with the reasoning of this state and that of others:

“* * * [D]riving a car while under the influence of intoxicating liquor does not constitute actionable negligence or contributory negligence unless there is a causal relationship between the intoxication and the accident. In Anderson v. Morgan, 73 Ariz. 344, 241 P. 2d 786 (1952), where the defendant driver was intoxicated but there was no substantial evidence that his operation of his truck proximately caused the accident, a judgment was directed for the defendant. In Atkins v. Moye, 277 N.C. 179, 176 S.E. 2d 789 (1970), the plaintiff, one of the drivers in a vehicle accident, was intoxicated. Proof of this fact was held to be insufficient to establish contributory negligence without proof that his condition caused him to operate his automobile in a manner which constituted a proximate cause of the collision.” Id. at 467, 558 P.2d at 1024. Accord Landrey v. United Services Auto. Assn. (1970), 49 Wis. 2d 150, 158, 181 N.W. 2d 407, 412.

These principles are equally applicable to the instant case. The city claims it is insulated from liability for Osier’s injury because he was driving while intoxicated in violation of R.C. 4511.19. However, it is error to propose an equation in which Osier’s intoxication equals negligence, thus barring his recovery under R.C. 2315.19, without factoring in the evidence at trial relating to the cause or causes of his injury.³

There was substantial expert and factual testimony adduced at trial to the effect that the condition of the city’s road was defective and dangerous. There was substantial evidence which showed that the city’s negligent failure to keep the road open and free from nuisance was the proximate cause of Osier’s accident and injury. The jury’s verdict reflected this view of the evidence. Yet the trial court apparently decided that the foregoing evidence of causation had no weight or credibility, or was irrelevant, for it ruled as a matter of law that Osier’s injury was solely the result of his own negligence in driving while intoxicated. This was improper. In considering a motion for judgment notwithstanding the verdict, a court does not weigh the evidence or test the credibility of the witnesses. Civ. R. 50(B); Posin, supra, at 275. The court of appeals was therefore correct in finding error in the trial court’s grant of judgment to the city, and we affirm the court of appeals’ decision in this regard.

We turn now to the question of whether the grant of a new trial was error. Two grounds were specified here, and we will first review the determination to grant a new trial on the basis that the verdict was contrary to law. The trial court ruled that the case should not have been submitted to the jury under Ohio’s comparative negligence statute, R.C. 2315.19. The city urges us to approve this ruling and contends that Osier’s conduct in driving while intoxicated was, as a matter of law, willful or wanton misconduct which could not be compared to the city’s negligent conduct.

We must reject this contention. Although it is true that such misconduct is in legal contemplation different from a “merely” negligent act, courts have held that the act of driving while intoxicated is not in and of itself willful or wanton misconduct as a matter of law. See, e.g., Gossett v. Jackson (1965), 10 Ohio App. 2d 121, 123 [39 O.O.2d 201]; Russell v. Elkins (1961), 115 Ohio App. 341, 345 [16 O.O.2d 472]. There must be evidence of other aggravating facts and circumstances in order to show that an act was willful or wanton in nature. See, e.g., Helleren v. Dixon (1949), 152 Ohio St. 40 [39 O.O. 368].

Further, this court has previously observed that the question of whether an automobile driver’s alleged unlawful conduct was wanton or willful is a question of fact for the jury to consider in light of all the surrounding facts and circumstances. See Hawkins v. Ivy (1977), 50 Ohio St. 2d 114, 117 [4 O.O.3d 243]; Tighe v. Diamond (1948), 149 Ohio St. 520, 528-530 [37 O.O. 243].

Thus, only in the most egregious cases should a court find willful or wanton misconduct as a matter of law. Such a finding was properly made by the court of appeals in Kemock v. The Mark II (1978), 62 Ohio App. 2d 103, 117-118 [16 O.O.3d 254] where the decedent was not only driving while intoxicated, but also exceeded the speed limit, made an illegal right hand turn on red, and attempted to elude a police officer before his fatal crash. The evidence in the instant case, however, does not reveal any such aggravating factors beyond Osier’s alleged intoxication. In fact, the city in its answer did not even assert Osier’s supposed willful and wanton misconduct as a defense.⁴ Thus, based on the evidence adduced at trial, this case was properly submitted to the jury under the comparative negligence statute and the trial court erred in holding Osier’s conduct to have been willful and wanton as a matter of law.

Finally, we must consider whether there was error in the grant of a new trial on the grounds the jury’s verdict was against the manifest weight of the evidence.

Although we have previously stated that the trial court’s entry of judgment notwithstanding the verdict was improper, our analysis of the court’s grant of a new trial necessarily involves a different standard of review. This court has stated that in ruling on a motion for a new trial, the trial court is afforded wide discretion in determining whether a jury’s verdict is against the manifest weight of the evidence, for the court must ensure, in its supervisory capacity, against a miscarriage of justice. Rohde v. Farmer (1970), 23 Ohio St. 2d 82, 91-93 [52 O.O.2d 376]; Jenkins v. Krieger (1981), 67 Ohio St. 2d 314, 320 [21 O.O.3d 198]. The trial court may examine the sufficiency of the evidence in so doing. Rohde, supra, at 92. Where the trial court’s decision on the motion for a new trial involves questions of fact, as in this case, our task as a reviewing court is to “view the evidence favorably to the trial court’s action rather than to the jury’s verdict.” Krieger, supra, at 320.

This court’s review of a decision to grant a new trial does not involve an evaluation or weighing of the evidence, Rohde, supra, at 94-95, and the trial court’s judgment should not be reversed absent an abuse of discretion, id. at paragraph one of the syllabus. Because the trial court herein set forth facts which constituted a reasonable basis for the determination that the verdict was against the manifest weight of the evidence,⁵ we find no abuse of its discretion in granting the city’s motion for a new trial. An-tal v. Olde Worlde Products, Inc. (1984), 9 Ohio St. 3d 144.

For all of the foregoing reasons, we affirm the judgment of the court of appeals and remand this cause for a new trial.⁶

Judgment affirmed and cause remanded.

Sweeney, Locher and Wright, JJ., concur. Holmes, J., concurs separately. Douglas, J., concurs in judgment only. C. Brown, J., concurs in part and dissents in part.

1 The evidence regarding Osier’s level of intoxication was not entirely conclusive. Both of the city’s experts were forced to admit, on cross-examination, that they could not definitely state what Osier’s blood-alcohol content was at the time of his accident. Further, a witness who was at the birthday party with Osier testified that Osier did not appear to be intoxicated.

2 R.C. 2315.19, the comparative negligence statute, incorporates the fundamental common-law concept of proximate cause. R.C. 2315.19(A)(1) provides in pertinent part:

“In negligence actions, the contributory negligence of a person does not bar the person or his legal representative from recovering damages that have directly approximately resulted from the negligence of one or more other persons, if the contributory negligence of the person bringing the action was no greater than the combined negligence of all other persons from whom recovery is sought. However, any damages recoverable by the person bringing the action shall be diminished by an amount that is proportionately equal to his percentage of negligence, which percentage is determined pursuant to division (B) of this section.” (Emphasis added.)

3 The principle that causation must be shown before a plaintiff can be denied recovery on the basis of his intoxication is not a new one. In Allen v. Pearson (1915), 89 Conn. 401, 94 A. 277, the injured plaintiff, a motorcyclist, was involved in a collision with the driver of an automobile. In a post-trial proceeding, the driver-defendant sought a new trial on grounds that the plaintiff was driving his motorcycle while intoxicated, and thus should be barred from recovery by his own contributory negligence. The Supreme Court of Connecticut held as follows:

“If * * * [plaintiff] was operating his motor-cycle on the highway while under the influence of intoxicating liquor at the time of his injury, he was violating chapter 85 of the Public Acts of 1911 * * * but that fact would not be enough to change the result of the former trial. The * * * [defendant] would be required to go further, and introduce evidence to show that such violation of the statute was a proximate cause of * * * [plaintiff’s] injuries.” Id. at 403, 94 A. at 278.

4 It should additionally be pointed out that the city apparently did not allege, in any of its pre- or post-trial motions, that Osier’s recovery should be barred by his willful or wanton misconduct. Nor was this argument relied on by the city at the hearing on its motion for a new trial. This theory did not spring to life until the trial court ruled favorably on that motion.

5 Specifically, the trial court found:

“(1) He had frequently driven around this curve on Leavitt Road prior to the incident in question; he was aware of the bump in the roadway, characterizing it as a ‘bad bump’; and he had never before lost control of his vehicle or driven off of the roadway when travelling this curve.

“(2) At the time in question, the roadway was dry and free of ice and snow.

“(3) At the time of the collision, Plaintiff weighed approximately 175 pounds.

“(4) On the morning of February 14, 1980, Plaintiff had breakfast between 10:00 a.m. and 11:00 a.m. and had essentially nothing else to eat the rest of the day.

“(5) Between the time it started to get dark on that day and approximately 7:30 p.m., Plaintiff drank two and a half Brandy Alexanders, which were served in small glasses, and one beer.”

6 Because we are remanding this cause for a new trial, we decline to address the procedural question involving the propriety of the city’s “cross-assignments” of error in the court of appeals.