[Cite as Ward v. Govt. Emps. Ins. Co., 2012-Ohio-2970.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
KRISTINE J. WARD :
Plaintiff-Appellant : C.A. CASE NO. 24884
v. : T.C. NO. 10CV5360
GOVERNMENT EMPLOYEES : (Civil appeal from INSURANCE CO., et al. Common Pleas Court)
Defendant-Appellee :
:
..........
OPINION
Rendered on the 29th day of June , 2012.
JEFFREY W. SNEAD, Atty. Reg. No. 0063416, 130 W. Second Street, Suite 1508, Dayton, Ohio 45402 Attorney for Plaintiff-Appellant
KEVIN C. CONNELL, Atty. Reg. No. 0063817, Fifth Third Center, 1 South Main Street, Suite 1800, Dayton, Ohio 45402 Attorney for Defendant-Appellee Bilen Mandefro
DONOVAN, J.
{¶ 1} This matter is before the Court on the Notice of Appeal of Kristine J. Ward, 2
filed November 4, 2011. On July 8, 2008, Ward was purportedly involved in a pedestrian
accident with a vehicle driven by Bilen Mandefro. On August 2, 2011, following trial, a
jury unanimously concluded that Mandefro failed to yield the right of way and was negligent
in executing a turn. However, the jury found that her negligence was not a direct and
proximate cause of Ward’s injuries, pain, suffering and damages.
{¶ 2} At trial, Ward testified that on the date of the incident, she took the bus to
the library in downtown Dayton, and that as she was returning to the bus stop, carrying a bag
on her right shoulder along with several books in her left hand, she stepped, with the light,
into the crosswalk on Third Street, headed southbound, and she then felt “a hit on my right
side, upper arm. I don’t know what that is. I’m spun left, I feel a pain in my foot, I’m on
the ground and I’m very worried about being in traffic.” Ward stated that before entering
the crosswalk, she looked around to make sure it was safe to cross. Ward testified that she
felt pain in her foot on impact. She denied that she was in a hurry, and she further denied
that she tripped and fell into the car. Ward stated that at the time she was wearing sandals
with straps that were not flip flops. When asked if she knew if her foot was run over by the
car, she responded, “I don’t know.” Ward stated she was taken to the hospital by
ambulance. She stated that the nail on her big toe was missing, and that her foot was
fractured in three places. Ward stated that she had surgery on July 14, 2008, and that her
surgeon inserted three pins to stabilize her foot. Ward testified that she continues to
experience pain and swelling in her foot.
{¶ 3} On cross-examination, Ward acknowledged that the history of physical
injury contained in the emergency room records indicates as follows: “She states she was 3
crossing a street, in an unknown rate of speed, the car pushed her down as it sideswiped her
large bag, which she had under her left arm,” and that “she states she was not run over” but
“pushed down violently.” Ward also acknowledged that she stated in deposition that she
did not know how she broke her foot as a result of the incident, and the following exchange
occurred:
Q. It all happened very quickly?
A. It did.
Q. And so, as a result you can’t tell us how that break happened?
A. Yes.
Q. And what moment it happened?
A. That’s right.
{¶ 4} On redirect, Ward denied breaking her foot before she was hit by the car,
and she stated that the injury resulted from the impact. She reviewed several histories given
by her, including the Dayton Fire Department EMS run report, which provides that her chief
complaint is “pain in right foot which may have been run over by the tire of a car.” She
reviewed an “ortho note” that provides that she “was clipped by a car while walking today.
She hit her foot against the ground, is now in complaint of pain in the ED department.”
Ward reviewed an “emergency department triage note” which provides that “Patient was
walking across the street and was clipped from behind by a vehicle, knocking her to the
ground.” She reviewed a “consultation with Dr. Prayson,” which provides that she
“presented to the emergency department after being struck by a car.”
{¶ 5} The jury also heard the testimony of Dr. Michael Prayson, perpetuated by 4
means of videotape. Prayson testified that he is an orthopedic surgeon, and that he treated
Ward for injuries she sustained on July 8, 2008. Prayson opined to a reasonable degree of
medical probability that Ward “did sustain injuries related to that pedestrian versus car
collision.” Specifically, Prayson testified that Ward sustained “a number of fractures through
the front and mid portion” of her right foot, and there was “an evulsion or removal of the
toenail to her great toe.” Prayson stated that she also had a “Lisfranc” injury in the arch area
of her foot. Prayson stated that he performed outpatient percutaneous surgery on Ward’s foot
under a general anesthetic, inserting three pins to stabilize Ward’s fractures. Prayson
reviewed Ward’s medical records and stated that they were generated as a result of the
collision. Prayson indicated that the residual effects of the injury that Ward experienced,
including pain and swelling, are permanent.
{¶ 6} On cross-examination, Prayson stated that when forming an opinion
regarding a patient’s diagnosis, he relies on the patient’s history, which he obtains directly
from the patient and perhaps other outside sources such as paramedics, friends or relatives,
as well as a physical examination and any medical testing that is completed. The following
exchange occurred:
Q. For example, if you’re going to diagnose simply that someone has
a broken bone, the history about what happened is not as relevant to you.
You can see it on the light box and see that the bone is broken and make that
opinion.
A. That is correct.
Q. But when you come in and testify in court that a broken bone is 5
caused by something, the history component of that opinion is critical.
Q. Because you weren’t there to see the event.
***
Q. And it indicates * * * in the record the history that was taken by
the resident or the nurse or whoever was taking the history from her at the
time at the emergency room, that she was not run over. She was just pushed
down violently - -
Q. So other than the history that you now see in the emergency
department, do you have any other background in terms of how this accident
happened?
A. No. I mean, we just - - basically what’s reported to us and what
information we get from whatever source, * * * that’s what we use.
So then there’s really not, from a medical standpoint, as you might
imagine, there’s not a reason to challenge it.
Q. Sure.
A. Not a reason to investigate it further, the specifics of how it
actually happened because it really doesn’t, like you said, have much bearing
on - - once we identify the injuries and what we have to do with the injuries. 6
Q. Doesn’t bear on the treatment.
A. Correct.
Q. You just want to get her better and make sure that that fracture is
aligned and she’s back to getting back to her life, correct?
Q. And you give your, your patients the benefit of the doubt in that
respect?
Q. Do you know what kind of shoes she was wearing that day?
A. I do not.
{¶ 7} The defense presented the testimony of Britt Tompkins, who witnessed the
accident from inside the library at a distance of approximately a hundred feet. He stated
that Ward was “trying to hurry up” and “[m]aking a big rush” to cross the street, and that she
“kind of like tripped over the shoe” and fell. According to Tompkins, “it just looked like
that she kind of fell into the vehicle * * * .” Tompkins stated that he did not observe
Ward’s feet, but he “seen her fall toward the car.” Tompkins stated that Ward “kind of like
hit the front, like between the mirror and * * * like above the tire, that section there.” When
he went outside to help pick up her books, Tompkins stated that Ward’s right sandal was on
her foot but broken and “snapped backwards.” On cross-examination, Tompkins stated that
he observed the events in his peripheral vision.
{¶ 8} Finally, Mandefro testified that she was driving to work in a Nissan Sentra
when the accident occurred, heading southbound on Saint Clair Street. She stated that she 7
stopped at the light at Third Street and waited to turn left. According to Mandefro, she
observed Ward stepping into the crosswalk, and Mandefro judged that she had enough time
to safely execute the turn. She stated that she moved forward and “was making that left
turn, when all I see is just movement coming towards my car.” She stated that she observed
the movement in her periphery, and that it “was fast. It was not gradual. It was almost like
a propelling. * * * .” Mandefro testified that she observed “an elbow hitting * * * the side
mirror of my car.” She testified that her vehicle was not damaged but that her side mirror
had been moved out of position after the impact. Mandefro stated that after the accident,
she observed that Ward’s elbow was “scratched up,” and her big toe was bleeding.
{¶ 9} At the close of the defense’s case, Ward moved the court for a directed
verdict on the issue of proximate cause, arguing that the “only proximate cause testimony
from a qualified medical doctor came from Dr. Prayson and he said as a result of this motor
vehicle collision, it caused these injuries,” and further that the defense failed to provide
competent medical evidence of alternative causation. The defense responded that Prayson
relied solely upon Ward’s version of events and that “the jury could conclude based on the
bent sandal, based on the open toe, based on the propelling, based on her falling, all those
things the jury could conclude that one can break their toe in any manner of ways, including
and not limited to that.” The trial court overruled the motion.
{¶ 10} After the jury’s verdict was announced, counsel for Ward moved for
judgment notwithstanding the verdict on the issue of proximate cause. The trial court
allowed the parties to brief the issue, and Ward filed a motion which the defense opposed.
The court subsequently overruled Ward’s motion. 8
{¶ 11} Ward asserts two assignments of error. Her first assigned error is as
follows:
THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S
MOTION FOR DIRECTED VERDICT ON THE ISSUE OF PROXIMATE
CAUSE AT THE CLOSE OF APPELLEE’S CASE IN CHIEF.
{¶ 12} Civ.R. 50(A)(4) provides:
When a motion for a directed verdict has been properly made, and the
trial court, after construing the evidence most strongly in favor of the party
against whom the motion is directed, finds that upon any determinative issue
reasonable minds could come to but one conclusion upon the evidence
submitted and that conclusion is adverse to such party, the court shall sustain
the motion and direct a verdict for the moving party as to that issue.
{¶ 13} As this Court recently noted:
We review the grant or denial of directed verdicts de novo. In
conducting the review, we construe the evidence most strongly in favor of the
nonmoving party. A motion for directed verdict must be denied “where
there is substantial evidence upon which reasonable minds could reach
different conclusions on the essential elements of the claim.” Anousheh v.
Planet Ford, Inc., 2d Dist. Montgomery Nos. 21960, 21967,
2007-Ohio-4543, ¶ 43. Furthermore, “[i]n deciding a motion for directed
verdict, neither the weight of the evidence nor the credibility of the witnesses
is to be considered.” Cater v. City of Cleveland, 83 Ohio St.3d 24, 33, 9
1998-Ohio-421, 697 N.E.2d 610. Kademian v. Marger, 2d Dist.
Montgomery No. 24256, 2012-Ohio-962, ¶ 56.
{¶ 14} “The ‘reasonable minds’ test calls upon a court to determine only whether
there exists any evidence of substantial probative value in support of the claims of the
nonmoving party. * * *. ” Lasley v. Nguyen, 172 Ohio App.3d 741, 2007-Ohio-4086, 876
N.E.2d 1274, ¶ 16 (2d Dist.) “‘When a motion for directed verdict is entered, what is being
tested is a question of law; that is, the legal sufficiency of the evidence to take the case to
jury.’” Id., ¶ 17, quoting Ruta v. Breckenridge-Remy Co., 69 Ohio St.2d 66, 430 N.E.2d
935 (1982). The motion “‘raises a question of law because it examines the materiality of
the evidence, as opposed to the conclusions to be drawn from the evidence.’” Id.
{¶ 15} “‘It is well settled that the elements of an ordinary negligence suit are (1)
the existence of a legal duty, (2) the defendant’s breach of that duty, and (3) injury that is the
proximate cause of the defendant’s breach.’ * * * .” Carpenter v. Long, 196 Ohio App.3d
376, 2011-Ohio-5414, 963 N.E.2d 857, ¶ 115 (2d Dist.). Regarding the element of proximate
cause, this Court has previously noted:
“Causation” refers to the cause and effect relationship between
tortious conduct and a loss that must exist before liability for that loss may be
imposed. * * * While difficult to define, “proximate cause” is generally
established “where an original act is wrongful or negligent and, in a natural
and continuous sequence, produces a result [that] would not have taken place
without the act.” * * * It is also well settled that because the issue of
proximate cause is not open to speculation, conjecture as to whether the 10
breach of duty caused the particular damage is not sufficient as a matter of
law. * * * Further a plaintiff must establish proximate cause by a
preponderance of the evidence. * * *. Innovative Technologies Corp. v.
Advanced Management Technology, Inc., 2d Dist. Montgomery No. 23819,
2011-Ohio-5544, ¶ 31.
{¶ 16} Ward asserts that the defense “failed to adequately refute [her] prima facie
evidence that the impact with Appellee’s vehicle was the proximate cause of her injuries.”
She asserts that the nature of her injuries required “more than common knowledge to bridge
the gap between injury and the subsequent physical disability caused by the collision” with
Mandefro’s car. She asserts that the jury should not have been permitted to “entertain
Appellee’s assertion that [her] injuries resulted from a trip or stub” in the absence of “the
corroborating testimony of a medical expert,” and that neither the cross-examination of
Prayson nor the proffered alternative theory of causation, namely that she injured her foot
when she tripped, were sufficient to refute her claim.
{¶ 17} Ward directs our attention to Darnell v. Eastman, 23 Ohio St.2d 13, 261
N.E.2d 114 (1970), which held at syllabus: “Except as to questions of cause and effect which
are so apparent as to be matters of common knowledge, the issue of causal connection
between an injury and a specific subsequent physical disability involves a scientific inquiry
and must be established by the opinion of medical witnesses competent to express such
opinion.”
{¶ 18} Regarding the nature of her injury, Ward further relies upon Bennett v.
Goodremont’s, Inc., 6th Dist. Lucas No. L-10-1185, 2011-Ohio-1264, ¶ 16-17, which 11
distinguished between injuries which are matters of common knowledge, and injuries that
are “internal and elusive in nature” and accordingly “outside the realm of common
knowledge,” concluding that the latter require proof of causation by expert medical
testimony.
{¶ 19} The cases upon which Ward relies involve the burden of proof placed upon
someone injured by the negligent act of another. This burden includes establishing that
the negligent act of another is the proximate cause of the injury. “Defendants can avoid a
directed verdict on this subject through cross-examination, presentation of contrary evidence
that the negligence was not the probable cause of the injury, or presenting evidence of
alternative causes of the injury.” Werth v. Davies, 120 Ohio App.3d 563, 570, 698 N.E.2d
507 (1st. Dist. 1997), citing Stinson v. England, 69 Ohio St. 3d 451, 456-57, 633 N.E.2d 532
(1994).
{¶ 20} On cross-examination, the defense adduced testimony that Prayson’s
opinion was based solely upon the history that Ward related. Prayson testified that he does
not investigate the specifics of causation but gives his patients the benefit of the doubt in that
respect, since his focus is on treatment. He described the history Ward related to him as
“critical,” or essential, to his opinion on causation, since he did not observe the collision. In
other words, Prayson assumed the truth of her history. Further, as the defense asserts,
Prayson did not testify as to how Ward’s injuries actually occurred. Finally, Prayson
stated that he was unaware of the type of shoes that Ward was wearing when she was
injured.
{¶ 21} While Ward denied that she tripped and fell into Mandefro’s car, the 12
testimonies of Tompkins and Mandefro both suggest that Ward in fact did so, and that
Ward’s injury accordingly was not proximately caused by the tortious conduct of Mandefro.
Tompkins, the independent eyewitness, stated that Ward was in a “big rush,” and that she
“tripped over the shoe” and “fell into the vehicle.” He indicated that Ward’s sandal was
snapped backwards, a condition that supports a conclusion that Ward tripped on her open toe
sandal (a condition of which Prayson was unaware). Mandefro’s testimony that Ward hit
the mirror of her car in a rapid, “propelling” motion is consistent with the testimony of
Tompkins.
{¶ 22} Construing the evidence most strongly in favor of the defense, we find that
reasonable minds could differ with respect to the element of proximate cause as a matter of
law. Accordingly, the trial court properly submitted the issue of causation to the jury.
Ward’s first assigned error is overruled.
{¶ 23} Ward’s second assignment of error is as follows:
THE JURY’S VERDICT IS AGAINST THE MANIFEST WEIGHT
OF THE EVIDENCE.
{¶ 24} As this Court has previously noted, in a weight of the evidence challenge,
an appellate court:
“[R]eview[s] the entire record, weighs the evidence
and all reasonable inferences, considers the
credibility of witnesses and determines whether
in resolving conflicts in the evidence, the jury
clearly lost its way and created such a manifest 13
miscarriage of justice that the conviction must
be reversed and a new trial ordered. The
discretionary power to grant a new trial should
be exercised only in the exceptional case in
which the evidence weighs heavily against the
conviction.” State v. Thompkins (1997), 78
Ohio St.3d 380, 387, quoting State v. Martin
(1983), 20 Ohio App.3d 172, 175. State v.
Pierre, 2d Dist. Montgomery No. 18443,
2001 WL 220239 (March 2, 2001).
{¶ 25} As noted by the First District:
The Ohio Supreme Court has recently clarified and explained the
standard of review to be applied when assessing the manifest weight of the
evidence in a civil case. Eastley v. Vollman, - - - Ohio St.3d - - -,
2012-Ohio-2179, - - - N.E.2d - - -. In Eastley, the court held that the
standard of review for the manifest weight of the evidence established in
[Thompkins] is also applicable in civil cases. * * * . Consequently, when
reviewing the weight of the evidence, our analysis must determine whether
the trial court’s judgment was supported by the greater amount of credible
evidence, and whether the plaintiff met its burden of persuasion, which is by
a preponderance of the evidence. * * * . We are mindful that, in a bench
trial, “the trial judge is best able to view the witnesses and observe their 14
demeanor, gestures and voice inflections, and use these observations in
weighing the credibility of the proffered testimony.” Seasons Coal Co., Inc.
v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984). It follows that,
“[i]f the evidence is susceptible of more than one construction, the reviewing
court is bound to give it that interpretation which is consistent with the
verdict and judgment, most favorable to sustaining the verdict and judgment.”
Id. at fn. 3, quoting 5 Ohio Jurisprudence 3d, Appellate Reveiw, Section 60,
at 191-192 (1978). SST Bearing Corporation. v. Twin City Fans Companies
Limited, 1st Dist. Hamilton No. C-110611, 2012-Ohio-2490, ¶ 16.
{¶ 26} Further,
While Thompkins explicitly permits this court to consider credibility
when confronted with an argument that the verdict is against the manifest
weight of the evidence, such consideration is not unbounded. We have
explained the limited role of an appellate court in reviewing issues of
credibility in weight of the evidence challenges as follows:
“Because the factfinder, be it the jury or * * * trial judge, has the
opportunity to see and hear the witnesses, the cautious exercise of the
discretionary power of a court of appeals to find that a judgment is against the
manifest weight of the evidence requires that substantial deference be
extended to the factfinder’s determinations of credibility. The decision
whether, and to what extent, to credit the testimony of particular witnesses is
within the peculiar competence of the factfinder, who has seen and heard the 15
witness. Contrastingly, the decision as to which of several competing
inferences, suggested by the evidence in the record, should be preferred, is a
matter in which an appellate judge is at least equally qualified, by reason and
experience, to venture an opinion. Therefore, although this distinction is not
set forth in Thompkins, supra, we conclude that a decision by a factfinder as
to which testimony to credit, and to what extent, is a decision that is entitled
to greater deference than the decision as to how much logical force to assign
an inference suggested by that evidence - in short, how persuasive it is. State
v. Lawson (Aug. 22, 1997), Montgomery App. No. 16288, unreported.”
State v. Pierre, supra.
{¶ 27} According to Ward, the jury lost its way when it found that her injuries
were not proximately caused by Mandefro’s negligence. Ward asserts again that the
defense “failed to provide competent evidence that it was even possible that [her] injuries
could be caused by a trip.” Nevertheless, it was not Mandefro’s burden to establish
proximate cause; that burden rested with Ward.
{¶ 28} As this Court has previously noted:
“[T]he jury is not required to give any additional weight to the opinion
of an expert, if any weight at all. Rather, an expert’s opinion is admissible,
as is any other testimony, to aid the trier of fact in arriving at a correct
determination of the issues being litigated. Expert testimony is permitted to
supplement the decision-making process of the fact finder not to supplant it.
(Citation omitted)”’ McBride v. Quebe, 2d Dist. Montgomery No. 21310, 16
2006-Ohio-5128, ¶ 5.
{¶ 29} The record reflects that the jury was instructed that they “must determine
whether the assumption on which the expert based his opinions are true. If any assumed
fact was not established by the greater weight of the evidence, you will determine the effect
of that failure on the value of the opinion of the expert,” and that they “may believe or
disbelieve all or any part of the testimony of any witness,” and that “upon you alone rests the
duty of deciding what weight should be given to the testimony of an expert.”
{¶ 30} After thoroughly reviewing the entire record, weighing the evidence and all
reasonable inferences, we cannot conclude that in resolving conflicts in the evidence, the
jury lost its way and thereby created a manifest miscarriage of justice. The jury had the
opportunity to see and hear all of the witnesses, and it was free to determine which testimony
to credit. We defer to the jury’s assessment of credibility. On this record, the jury could
have simply discredited Prayson’s testimony regarding causation because the assumed facts
on which his opinions were based were not established by the greater weight of the evidence,
given the testimony of Tompkins and Mandefro. There being no merit to Ward’s second
assigned error, it is overruled.
{¶ 31} The judgment of the trial court is affirmed.
HALL, J., concurs.
GRADY, P.J., concurring:
{¶ 32} The issue was whether the driver of the vehicle, Mandefro, was negligent, 17
and whether that negligence proximately resulted in the injuries to her foot and related losses
of which Plaintiff Ward complained. The jury found that Mandefro was negligent, but that
Ward’s injuries did not proximately result from that negligence.
{¶ 33} Proximate cause is a question of fact. Though Ward offered expert
opinion evidence that her injuries proximately resulted from Mandefro’s negligence, the jury
was free to reject that evidence if it found a different proximate cause. Defendant was not
required to likewise offer expert evidence in order to argue a different proximate cause,
because the jury could weigh the evidence presented to find that Ward’s injuries resulted or
may have resulted from another proximate cause, without the assistance of expert opinion
evidence.
Copies mailed to:
Jeffrey W. Snead Kevin C. Connell Hon. Timothy N. O’Connell