[Cite as Riebe v. Hilton, 2012-Ohio-1699.] STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
NICHOLINA RIEBE, et al. ) CASE NO. 11 MA 180 ) PLAINTIFFS-APPELLEES ) ) VS. ) OPINION ) SILKA HILTON, et al. ) ) DEFENDANTS-APPELLANTS )
CHARACTER OF PROCEEDINGS: Civil Appeal from the Youngstown Municipal Court of Mahoning County, Ohio Case No. 10 CVI 1771
JUDGMENT: Modified. Affirmed.
APPEARANCES:
For Plaintiffs-Appellees: Nicholina Riebe, Pro se 1698 Olson Avenue Youngstown, Ohio 44509
Kelly K. Riebe, Pro se 4595 Alderwood Drive Canfield, Ohio 44406
For Defendants-Appellants: Atty. Timothy F. George 1029 Youngstown-Warren Road Niles, Ohio 44446
JUDGES:
Hon. Cheryl L. Waite Hon. Gene Donofrio Hon. Mary DeGenaro Dated: March 28, 2012 [Cite as Riebe v. Hilton, 2012-Ohio-1699.] WAITE, P.J.
{¶1} This is an appeal of a small claims action in Youngstown Municipal
Court involving an automobile accident. Appellee Nicholina Riebe (“Appellee”) filed a
pro se negligence complaint after her daughter Kelly K. Riebe (“Riebe”) was involved
in an accident using Appellee’s car. The accident occurred when Appellant Silka S.
Hilton (“Hilton”) was making a left turn on McCollum Road in Youngstown. Riebe
was travelling in the opposite direction on McCollum Road. The two cars collided
before Hilton finished making the left turn. The other defendant in the case is Hilton’s
mother, Appellant Celina H. Gardenhire (“Gardenhire”) who was the owner of the car
that Hilton was driving.
{¶2} Appellee alleged that Hilton failed to yield while making a left turn, and
thus, was responsible for the accident. She filed the small claims action to recover
the cost of the vehicle, which was destroyed in the accident. The case was heard
before a magistrate, who ruled in Appellee’s favor in the amount of $2,610 plus costs.
Appellee was unrepresented by counsel both at trial and in this appeal. Appellants
argue that judgment against Gardenhire, the vehicle owner, was inappropriate
because Appellee failed to prove (or even allege) negligent entrustment. Appellants
are correct, and the judgment against Gardenhire must be dismissed. Appellants
also argue that the trial court incorrectly relied on evidence that Hilton pleaded no
contest to a left turn violation. Evid.R. 410(A) prohibits the use of no contest pleas as
evidence in any civil or criminal action. The record does not reflect that the trial court
relied on the no contest plea in rendering its judgment, and this argument has no -2-
merit. The judgment of the trial court is modified to dismiss the claim against Celina
H. Gardenhire, and is affirmed in all other aspects.
{¶3} The accident occurred on August 20, 2009. The record reflects that
Appellee, as the owner of the car Riebe was driving, filed the small claims action
because the other driver had no insurance. Questions about insurance coverage are
not part of this case, although it is clear from the record that there was no insurance
on Gardenhire’s vehicle at the time of the accident. Riebe does not appear to be a
party to this action, as she did not sign her mother’s small claims complaint nor
otherwise join the lawsuit.
{¶4} Attached to the small claims complaint was a copy of a Youngstown
traffic citation that Hilton received at the time of the accident. Hilton was cited for
violating Youngstown Municipal Ordinance (“Ord.”) 331.17, which requires a driver
making a left turn to yield to a vehicle approaching in the opposite direction.
Appellee also attached a copy of Hilton’s no contest plea to the complaint. The small
claims case was heard at a bench trial before a magistrate on August 5, 2010.
Appellee proceeded pro se, but the defendants were represented by counsel. Riebe
described her version of the accident, and Appellee testified about the value of the
vehicle and the disposition of the vehicle after the accident. The accident occurred at
the intersection of McCollum Road and Schenley Avenue in Youngstown. Hilton was
heading west and attempted to make a left turn to travel south on Schenley Ave.
Riebe was heading east and hit Hilton’s car as it was in the intersection making the
left turn. Hilton also testified that she was making a left turn on McCollum when the -3-
cars collided, but she did not remember seeing Riebe’s vehicle as she was making
the turn.
{¶5} Appellants’ attorney objected to Appellee’s use of the no contest plea to
Ord. 331.17 as proof of liability. The magistrate agreed that it could not be used as
evidence. (Tr., p. 27.)
{¶6} The magistrate found in favor of Appellee and awarded her $2,610 for
the value of the car and for the towing charge. Appellants filed objections to the
magistrate’s decision, but the trial court overruled the objections and adopted the
magistrate’s decision on December 6, 2010. This appeal followed. Appellee has not
filed a brief on appeal, which allows us to “accept the appellant's statement of the
facts and issues as correct and reverse the judgment if appellant's brief reasonably
appears to sustain such action.” App.R. 18(C).
ASSIGNMENT OF ERROR NO. 1
{¶7} “THE TRIAL COURT ERRED IN GRANTING JUDGMENT AGAINST
APPELLANT, CELINA GARDENHIRE, BECAUSE THE ELEMENTS OF
NEGLIGENT ENTRUSTMENT WERE NOT ESTABLISHED.”
{¶8} Appellants’ first argument is that Gardenhire, who owns the vehicle that
Hilton was driving but was not in the vehicle at the time of the accident, should not be
liable for any part of the judgment because Appellee did not allege or prove any
theory by which she could be held liable. Appellants contend that the owner of a
vehicle may be held vicariously liable when a vehicle is negligently entrusted to
another, but no allegation or proof of negligent entrustment was made in this case. -4-
Appellants are correct. In order to prove negligent entrustment, the plaintiff must
show that “that the owner of the automobile had knowledge of the driver's
incompetence, inexperience or reckless tendency as an operator, or that the owner,
in the exercise of ordinary care, should have known thereof from facts and
circumstances with which he was acquainted.” Mt. Nebo Baptist Church v. Cleveland
Crafts Co., 154 Ohio St. 185, 93 N.E.2d 668 (1950), paragraph two of the syllabus.
{¶9} There is no evidence in the record supporting the conclusion that
Gardenhire gave Hilton permission to use the vehicle, or that she had any knowledge
that Hilton may have had any history of incompetence, inexperience or reckless
tendencies as an operator of a motor vehicle. The only evidence on the subject
came from Gardenhire herself, who stated that she did not permit Hilton to use the
car and did not entrust her car to Hilton. (Tr., p. 26.) There is no evidence at all
about Hilton’s driving history. Because Appellee did not attempt to establish
negligent entrustment or advance any other theory as to Appellant’s liability as mere
owner of the car, she should have been dismissed as a defendant. Appellants were
not insured at the time of accident, and there are no issues regarding possible
insurance claims that might arise based on ownership of the vehicle. The judgment
of the trial court is modified to dismiss Gardenhire from the case.
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[Cite as Riebe v. Hilton, 2012-Ohio-1699.] STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
NICHOLINA RIEBE, et al. ) CASE NO. 11 MA 180 ) PLAINTIFFS-APPELLEES ) ) VS. ) OPINION ) SILKA HILTON, et al. ) ) DEFENDANTS-APPELLANTS )
CHARACTER OF PROCEEDINGS: Civil Appeal from the Youngstown Municipal Court of Mahoning County, Ohio Case No. 10 CVI 1771
JUDGMENT: Modified. Affirmed.
APPEARANCES:
For Plaintiffs-Appellees: Nicholina Riebe, Pro se 1698 Olson Avenue Youngstown, Ohio 44509
Kelly K. Riebe, Pro se 4595 Alderwood Drive Canfield, Ohio 44406
For Defendants-Appellants: Atty. Timothy F. George 1029 Youngstown-Warren Road Niles, Ohio 44446
JUDGES:
Hon. Cheryl L. Waite Hon. Gene Donofrio Hon. Mary DeGenaro Dated: March 28, 2012 [Cite as Riebe v. Hilton, 2012-Ohio-1699.] WAITE, P.J.
{¶1} This is an appeal of a small claims action in Youngstown Municipal
Court involving an automobile accident. Appellee Nicholina Riebe (“Appellee”) filed a
pro se negligence complaint after her daughter Kelly K. Riebe (“Riebe”) was involved
in an accident using Appellee’s car. The accident occurred when Appellant Silka S.
Hilton (“Hilton”) was making a left turn on McCollum Road in Youngstown. Riebe
was travelling in the opposite direction on McCollum Road. The two cars collided
before Hilton finished making the left turn. The other defendant in the case is Hilton’s
mother, Appellant Celina H. Gardenhire (“Gardenhire”) who was the owner of the car
that Hilton was driving.
{¶2} Appellee alleged that Hilton failed to yield while making a left turn, and
thus, was responsible for the accident. She filed the small claims action to recover
the cost of the vehicle, which was destroyed in the accident. The case was heard
before a magistrate, who ruled in Appellee’s favor in the amount of $2,610 plus costs.
Appellee was unrepresented by counsel both at trial and in this appeal. Appellants
argue that judgment against Gardenhire, the vehicle owner, was inappropriate
because Appellee failed to prove (or even allege) negligent entrustment. Appellants
are correct, and the judgment against Gardenhire must be dismissed. Appellants
also argue that the trial court incorrectly relied on evidence that Hilton pleaded no
contest to a left turn violation. Evid.R. 410(A) prohibits the use of no contest pleas as
evidence in any civil or criminal action. The record does not reflect that the trial court
relied on the no contest plea in rendering its judgment, and this argument has no -2-
merit. The judgment of the trial court is modified to dismiss the claim against Celina
H. Gardenhire, and is affirmed in all other aspects.
{¶3} The accident occurred on August 20, 2009. The record reflects that
Appellee, as the owner of the car Riebe was driving, filed the small claims action
because the other driver had no insurance. Questions about insurance coverage are
not part of this case, although it is clear from the record that there was no insurance
on Gardenhire’s vehicle at the time of the accident. Riebe does not appear to be a
party to this action, as she did not sign her mother’s small claims complaint nor
otherwise join the lawsuit.
{¶4} Attached to the small claims complaint was a copy of a Youngstown
traffic citation that Hilton received at the time of the accident. Hilton was cited for
violating Youngstown Municipal Ordinance (“Ord.”) 331.17, which requires a driver
making a left turn to yield to a vehicle approaching in the opposite direction.
Appellee also attached a copy of Hilton’s no contest plea to the complaint. The small
claims case was heard at a bench trial before a magistrate on August 5, 2010.
Appellee proceeded pro se, but the defendants were represented by counsel. Riebe
described her version of the accident, and Appellee testified about the value of the
vehicle and the disposition of the vehicle after the accident. The accident occurred at
the intersection of McCollum Road and Schenley Avenue in Youngstown. Hilton was
heading west and attempted to make a left turn to travel south on Schenley Ave.
Riebe was heading east and hit Hilton’s car as it was in the intersection making the
left turn. Hilton also testified that she was making a left turn on McCollum when the -3-
cars collided, but she did not remember seeing Riebe’s vehicle as she was making
the turn.
{¶5} Appellants’ attorney objected to Appellee’s use of the no contest plea to
Ord. 331.17 as proof of liability. The magistrate agreed that it could not be used as
evidence. (Tr., p. 27.)
{¶6} The magistrate found in favor of Appellee and awarded her $2,610 for
the value of the car and for the towing charge. Appellants filed objections to the
magistrate’s decision, but the trial court overruled the objections and adopted the
magistrate’s decision on December 6, 2010. This appeal followed. Appellee has not
filed a brief on appeal, which allows us to “accept the appellant's statement of the
facts and issues as correct and reverse the judgment if appellant's brief reasonably
appears to sustain such action.” App.R. 18(C).
ASSIGNMENT OF ERROR NO. 1
{¶7} “THE TRIAL COURT ERRED IN GRANTING JUDGMENT AGAINST
APPELLANT, CELINA GARDENHIRE, BECAUSE THE ELEMENTS OF
NEGLIGENT ENTRUSTMENT WERE NOT ESTABLISHED.”
{¶8} Appellants’ first argument is that Gardenhire, who owns the vehicle that
Hilton was driving but was not in the vehicle at the time of the accident, should not be
liable for any part of the judgment because Appellee did not allege or prove any
theory by which she could be held liable. Appellants contend that the owner of a
vehicle may be held vicariously liable when a vehicle is negligently entrusted to
another, but no allegation or proof of negligent entrustment was made in this case. -4-
Appellants are correct. In order to prove negligent entrustment, the plaintiff must
show that “that the owner of the automobile had knowledge of the driver's
incompetence, inexperience or reckless tendency as an operator, or that the owner,
in the exercise of ordinary care, should have known thereof from facts and
circumstances with which he was acquainted.” Mt. Nebo Baptist Church v. Cleveland
Crafts Co., 154 Ohio St. 185, 93 N.E.2d 668 (1950), paragraph two of the syllabus.
{¶9} There is no evidence in the record supporting the conclusion that
Gardenhire gave Hilton permission to use the vehicle, or that she had any knowledge
that Hilton may have had any history of incompetence, inexperience or reckless
tendencies as an operator of a motor vehicle. The only evidence on the subject
came from Gardenhire herself, who stated that she did not permit Hilton to use the
car and did not entrust her car to Hilton. (Tr., p. 26.) There is no evidence at all
about Hilton’s driving history. Because Appellee did not attempt to establish
negligent entrustment or advance any other theory as to Appellant’s liability as mere
owner of the car, she should have been dismissed as a defendant. Appellants were
not insured at the time of accident, and there are no issues regarding possible
insurance claims that might arise based on ownership of the vehicle. The judgment
of the trial court is modified to dismiss Gardenhire from the case.
ASSIGNMENT OF ERROR NO. 2
{¶10} “THE TRIAL COURT ERRED IN CONSIDERING THAT APPELLANT,
SILKA HILTON, WAS CHARGED WITH A VIOLATION OF YOUNGSTOWN CITY -5-
ORDINANCE 331.17 INASMUCH AS SAID APPELLANT ENTERED A PLEA OF NO
CONTEST TO SAID CHARGE.”
{¶11} Appellants’ second assignment of error alleges that the trial court
improperly relied on evidence of a no contest plea to establish that Hilton was liable
for the accident. Evid.R. 410(A)(2) prohibits the use of a no contest plea as
evidence: “[E]vidence of the following is not admissible in any civil or criminal
proceeding against the defendant who made the plea or who was a participant
personally or through counsel in the plea discussions: * * * (2) a plea of no contest or
the equivalent plea from another jurisdiction”. This prohibition is repeated in Crim.R.
11(B)(2). The Ohio Supreme Court has explained the purpose of Evid.R. 410(A) as
follows:
{¶12} The purpose behind the inadmissibility of no contest
pleas in subsequent proceedings is to encourage plea
bargaining as a means of resolving criminal cases by
removing any civil consequences of the plea. The rule also
protects the traditional characteristic of the no contest plea,
which is to avoid the admission of guilt. The prohibition
against admitting evidence of no contest pleas was
intended generally to apply to a civil suit by the victim of the
crime against the defendant for injuries resulting from the
criminal acts underlying the plea. The plain language of
Evid.R. 410(A) prohibits admission of a no contest plea, -6-
and the prohibition must likewise apply to the resulting
conviction. To find otherwise would thwart the underlying
purpose of the rule and fail to preserve the essential nature
of the no contest plea. (Citations omitted.) Elevators Mut.
Ins. Co. v. J. Patrick O'Flaherty's, 125 Ohio St.3d 362,
2010-Ohio-1043, 928 N.E.2d 685, ¶14.
{¶13} The record does not reflect that the magistrate or the trial judge relied
on the no contest plea as proof of liability. The magistrate sustained Appellants’
objection to the use of the no contest plea, and stated that “I tell everyone in traffic
court, a no contest plea can’t be used against you at any later civil proceeding.” (Tr.,
p. 27.) The magistrate’s findings of fact and conclusions of law do not make any
reference to the no contest plea. A judge, or in this case, a magistrate, proceeding in
a bench trial is presumed to know the law and apply it correctly. State v. Eley, 77
Ohio St.3d 174, 180-181, 672 N.E.2d 640 (1996); E. Cleveland v. Odetellah, 91 Ohio
App.3d 787, 794, 633 N.E.2d 1159, (8th Dist.1993). Nothing in this record acts to
overcome this presumption. The remaining evidence in the record firmly supports a
conclusion that Hilton made a left turn and failed to yield to the oncoming driver, and
thus, was negligent and was liable for damages. Appellants’ argument is
unpersuasive, and this assignment of error is overruled.
{¶14} In conclusion, Appellants are correct that the owner of the vehicle
involved in the accident, Celina H. Gardenhire, should have been dismissed from the
action because no theory of liability against her was set forth or proven. Appellants -7-
are incorrect that the trial court relied on Hilton’s no contest plea to a left turn violation
as proof of liability. The magistrate had other evidence to rely on to support its
judgment in favor of Appellee, and nothing in the record demonstrates that the trial
court relied on the no contest plea. The judgment entry is therefore modified to
reflect that Gardenhire is dismissed as a party and is not liable for the judgment. The
judgment is affirmed in all other aspects.
Donofrio, J., concurs.
DeGenaro, J., concurs.