[Cite as Downie v. Montgomery, 2013-Ohio-5552.]
STATE OF OHIO, COLUMBIANA COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
CANDICE DOWNIE, et al., )
) CASE NO. 12 CO 43
PLAINTIFFS-APPELLANTS, )
)
- VS - ) OPINION
)
SCOTT E. MONTGOMERY, et al., )
)
DEFENDANTS-APPELLEES. )
CHARACTER OF PROCEEDINGS: Civil Appeal from Common Pleas
Court, Case No. 2011 CV 356.
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiffs-Appellants: Attorney Ilan Wexler
Anzellotti, Sperling, Pazol & Small Co.
21 North Wickliffe Circle
Youngstown, OH 44515
For Defendants-Appellees: Attorney William Scott Fowler
Comstock, Springer & Wilson Co. LPA
100 Federal Plaza East, Suite 926
Youngstown, OH 44503
JUDGES:
Hon. Mary DeGenaro
Hon. Gene Donofrio
Hon. Cheryl L. Waite
Dated: December 13, 2013
[Cite as Downie v. Montgomery, 2013-Ohio-5552.]
DeGenaro, P.J.
{¶1} Plaintiffs-Appellants Candice and James Downie appeal the September 13,
2012 judgment of the Columbiana County Court of Common Pleas denying their motions
for judgment notwithstanding the verdict and for a new trial, following a jury verdict in
favor of Defendants-Appellees, Scott Montgomery and Nickolas Perez. On appeal,
Appellants assert the trial court erred by denying these motions.
{¶2} Upon review, Appellants' arguments are meritless. The trial court properly
denied the motion for JNOV as there was sufficient evidence presented at trial so as to
create a jury question regarding proximate cause. The trial court did not abuse its
discretion in denying the new trial motion as the jury did not lose its way and the verdict
was not manifestly unjust. Accordingly, the judgment of the trial court is affirmed.
Facts and Procedural History
{¶3} On May 22, 2010, Appellant Candice Downie was an invited guest at the
home of Appellee Scott Montgomery and his partner Kelley Perez. While Scott and his
stepson, Appellee Nickolas Perez, were arguing, Candice stepped between the two men
and was knocked to the ground. Candice claims this injured her ankle.
{¶4} On May 17, 2011, Appellants filed a Complaint against Appellees for
negligence and loss of consortium. On June 16, 2011, Appellees filed an Answer, in
which they asserted that Candice's negligence was the sole or contributing cause of her
injuries. They also alleged that Candice voluntarily entered into a course of conduct with
knowledge of all the attendant risks and circumstances and thereby assumed the risk of
any and all of her injuries and damages. Additionally, they claimed that if any of
Candice's medical bills have been paid by third parties having subrogation rights against
Appellees, Candice failed to join them to the lawsuit as required. Finally, Appellees
contended that Candice failed to mitigate her damages.
{¶5} On July 27, 2011, Appellants filed an Amended Complaint that also named
Medical Mutual Services as an involuntary party plaintiff. After various filings, Medical
Mutual was dismissed with prejudice on April 5, 2012.
{¶6} On May 1, 2012, Appellees filed a motion for summary judgment, in which
they argued under a primary assumption of the risk theory that Candice assumed the risk
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of injury by her actions, thereby extinguishing any liability on the part of Appellees.
Appellants filed a brief in opposition, and on May 17, 2012, the court denied the motion
for summary judgment.
{¶7} The case proceeded to jury trial on May 21, 2012. Appellees' theory of the
case was that Candice injected herself into a heated argument and therefore assumed
the risk of getting injured. Alternatively, they claimed that Candice injured herself when
she fell upon returning home that night, and that this fall was the proximate cause of her
ankle injury.
{¶8} Candice testified that she ran into Kelley and Kelley's daughter, Natalie
Perez, on the day of the incident and they invited her to their house. Subsequently, upon
learning that Nick and another boy had gotten into a car accident, Candice offered to go
to the hospital with Kelley so she could take the boys to get checked out. On the way
home from the hospital Nick began arguing with his mother because Nick had initially lied
about the cause of the accident. Upon their return to Scott and Kelly's house, the
argument continued, with Scott becoming involved. Scott offered Candice a ride home;
however, she refused because he seemed drunk to her. She asserted that Scott had a
history of drinking.
{¶9} The situation between Nick and Scott began to escalate and Nick started
punching the side of Scott's jeep. Tempers flared. In an attempt to diffuse the situation,
Candice said that she then stepped between Scott and Nick and told them to "please just
stop." Then, "the next think [she] knew, [she] was hit from behind." She testified that
after this collision she could not put any weight on her foot and she thought it was
sprained.
{¶10} Kelly offered to take Candice to the emergency room, but Candice declined,
preferring to go home and have Jim take her. Kelley gave Candice a ride home; Nick and
Natalie rode along with them. On the way, Candice told Kelley that if she did decide to
get treatment for her ankle injury, she would say that the injury was caused by tripping
over her dogs.
{¶11} Candice testified that when she arrived home, she had to hop on one leg to
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the door of her apartment. Once there, Kelley began screaming at Jim. Jim was holding
one of their dogs, who was barking. Candice said she was in pain once she got to the
threshold and leaned on Jim, who put her on the couch. He closed the door to make sure
the dogs could not get out. Jim told Kelley to leave and she did.
{¶12} Jim later took Candice to the hospital for treatment and Candice said she
told hospital personnel that her injury was the result of tripping over her dogs. Initial
emergency room records indicate she injured herself while walking her dogs. However,
after Candice was released from the hospital, she grew upset over lying about the cause
of her injury. She discussed the matter with her husband, who told her to "make it right."
According to Candice, she then called the police department to report to them what
happened. However, no such police report was offered or admitted into evidence.
Candice said she later explained to her doctor that she did not trip over her dogs.
Candice testified that she lied about the true cause of her injury because she promised
Kelley she would do so and she did not want to see Nick get in trouble.
{¶13} Jim, Candice's husband, testified that when Candice returned to their
apartment after the incident she was limping. He testified that Kelley was screaming at
him upon their arrival. Jim testified that he was holding the larger of his two dogs, a
Border Collie, so that it did not run away. At this point, he grabbed Candice to bring her
into the apartment. Once he did this, he set the dog down, screamed at Kelley to get out
of his apartment, and closed the door. Jim testified that after he set the dog down, he did
not see what happened to his wife.
{¶14} Kelley testified to what she observed of the altercation between Scott, Nick
and Candice. She said that after Nick punched Scott's jeep, Scott and Nick, who were
being held back by Natalie and Kelley respectively, were released and headed toward
each other. Kelley stated that, at the last second, Candice stepped between the two
men. Then, Nick collided into Candice, who was facing Scott, knocking all three
individuals to the ground on top of each other.
{¶15} Kelley testified that after the fall, Candice was limping but said that her ankle
was just sprained. Kelley, accompanied by her son and daughter, drove Candice back to
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the Downie apartment. Kelley testified that she offered to take Candice to the hospital,
but Candice refused. Kelley denied that she and Candice discussed what Candice
planned to tell doctors regarding the cause of her ankle injury.
{¶16} Kelley's testimony as to what occurred upon arrival to the Downie apartment
differs significantly from that of Jim and Candice. Kelley testified that the dog Jim claimed
he was holding was actually hooked on a cable to keep it in the house. She claimed this
cable became wrapped around Candice's ankle, which caused Candice to fall and injure
her ankle. At this point, Kelley claimed she pulled the dog off of Candice. Kelley said that
Jim then grabbed Candice and threw her at least ten feet across the room onto a couch
after she had been knocked over by the dog.
{¶17} Nick, who was 18 years old at the time of the incident and 20 years old at
the time of trial, testified, confirming that on the car ride home from the hospital he got
into an argument with his mother. He said once they returned home from the hospital,
Scott involved himself in the argument. The remainder of his testimony with regard to the
collision between himself, Scott and Candice, was substantially similar to Kelley's
testimony. Namely, he confirmed that Candice jumped in the middle when he and Scott
"were going at each other."
{¶18} Nick rode with his mother and sister to take Candice home. He denied
hearing Candice and Kelley talk about what Candice would say when she got to the
hospital. He remained in the car while they went to the door of her apartment and said
Candice was limping. Nick testified that he saw Jim, who was yelling, open the door and
saw the dog inside on a cable. He saw the cable wrap around Candice's ankle, causing
her to fall. During trial, he said Candice "fell face first into her house." He conceded that
during depositions, he testified that he she fell straight down "on her butt," but said that
testimony was a mistake.
{¶19} Natalie, who was 19 years old at the time of trial, witnessed the altercation
between Scott and Nick; initially, she was holding Scott, and Kelley was holding Nick.
She explained: "And then after Nick had hit the Jeep, or whatever, things were getting
pretty out of hand. And we couldn't hold them back anymore. And so at that point, when
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it was too out of control we had to step back. And Candy [Candice] stepped in the middle
of it at the last minute and everybody fell over." Natalie said that after the incident,
Candice complained that her ankle hurt but did not want to go to the hospital.
{¶20} Natalie corroborated Kelley's version of events as to what occurred on their
trip to the Downie apartment, as well as what happened once they got there. She said
she never heard Kelley and Candice discuss what Candice would say when she got to the
hospital; in fact, she recalled that Candice stated she was not going to the hospital
because her ankle injury was not that bad. According to Natalie, Candice "said she was
fine" afterwards.
{¶21} Once at the Downie apartment, Natalie stated she and her mother
accompanied Candice to the door; Nick remained in the car. She said once the
apartment door opened she saw a dog on a red cable leash. She said the cable became
tangled around Candice's ankle, causing Candice to fall. Amid the yelling, Jim, who was
angry, picked Candice up and threw her about 10 feet across the room and onto a couch.
{¶22} Scott testified that he did in fact inject himself into the argument between
Nick and Kelley, making him the target of Nick's anger. As things became more heated,
Natalie held him back and Kelley held Scott. Nick punched Scott's jeep, making Scott
even more upset. Shortly thereafter, Natalie let go of him and he and Nick started coming
at each other. When there was about six to eight feet between them, Candice got in the
middle, and the three of them collided.
{¶23} Video depositions of two of Candice's treating physicians, Dr. John Paumier
and Dr. Joseph Francisco, Jr., were played to the jury to explain Candice's injury and the
treatment she received for the injury. In addition, Candice's medical records concerning
her injury were admitted into evidence.
{¶24} Candice arrived at the hospital emergency department late in the evening of
May 22, 2010. According to her chart, Candice had "marked pain" with movement of the
ankle joint; that the ankle was "exquisitely tender" to palpation and that the exam was
consistent with a "very significant area of contusion and soft tissue damage." Candice
complained of 10/10 level "excruciating" pain upon admission and was administered
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intramuscular pain medication. X-rays of the ankle were ordered.
{¶25} Dr. John Paumier, an orthopedic surgeon, was called to the emergency
department to treat Candice. After reviewing the x-rays and examining Candice, he
diagnosed her with a left trimalleolar ankle fracture and dislocation. According to Dr.
Paumier, the x-rays revealed "comminution fragments," meaning Candice's ankle was
fractured into many small pieces.
{¶26} Candice was discharged from the emergency department in the very early
morning of May 23, 2010. At that time, her pain level was 8/10. She returned to the
hospital on May 24, 2010 for Dr. Paumier to perform surgery to repair her ankle. Dr.
Paumier also handled Candice's treatment following the surgery.
{¶27} Significantly, Candice's explanation of the cause of her injury changed
during the course of her medical treatment. According to medical records, when her
ankle was x-rayed she explained the injury was caused when she "fell down steps while
walking a dog." At trial, Candice recalled that she initially told medical personnel that she
tripped over her dogs. In his initial report, Dr. Paumier states that Candice told him that
she injured her ankle when she "fell down three steps."
{¶28} Then months later, "at the conclusion of the healing process * * * on or
about September 2nd, 2010," the same day Appellants' attorneys requested medical
records from Dr. Paumier, Candice phoned Dr. Paumier to tell him that her injury had
been caused by "an altercation between stepfather and stepson where she basically got
in the middle of the two, [and] was tackled by the stepson." When asked during his
deposition, Dr. Paumier stated that Candice's injury could have been caused by either
one of the scenarios presented to him by Candice.
{¶29} Dr. Joseph Francisco, Jr., a podiatrist, began treating Candice
approximately a year after the incident in May 2011, after she complained of chronic
ankle pain that limited her mobility and prevented her from carrying out her normal day-to-
day lifestyle prior to the injury. Dr. Francisco recommended surgery to remove two of the
screws in Candice's ankle, which had been placed there due to the fracture. Dr.
Francisco referred Candice to a different doctor who performed the surgery. Dr.
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Francisco also testified that the arthritis that Candice had developed was more likely than
not related to the fractured ankle. Numerous exhibits were admitted concerning
Candice's medical treatment by both doctors.
{¶30} Appellees made two motions for directed verdict, first after the close of
Appellants' case, and then at the close of their own case, both of which were overruled.
The trial court gave the jury charge, which included instructions about comparative
negligence.
{¶31} Following deliberations, the jury returned with a General Verdict in favor of
Appellees. The verdict received six votes. The jury answered yes, with seven votes, to
Interrogatory A, which asked "Was Defendant Scott Montgomery negligent?" Seven
jurors also answered yes to Interrogatory B, which asked "Was Defendant Nicholas Perez
negligent?" Six jurors answered no to Interrogatory C, which asked "Was the negligence
of Defendant Scott Montgomery or Nicholas Perez a direct and proximate cause of the
injury to Plaintiff Candice Downie?"
{¶32} We can glean from the trial court's oral instructions to the jury that there
were additional interrogatories submitted to them aside from Interrogatories A, B, and C.
However, for reasons unknown, the additional unsigned interrogatories were not returned
to the trial court as instructed and thus were not included in the trial court record.
Significantly, counsel declined the trial court's offer to inspect the interrogatories or to poll
the jury.
{¶33} On June 5, 2012, judgment was entered in favor of Appellees.
{¶34} Appellants filed a motion for JNOV on June 19, 2012, as well as an
alternative motion for a new trial. Appellants argued the jury erred in their decision on
proximate cause due to a complete lack of evidence suggesting Candice was not injured
in the original collision and fall described in the Complaint. Appellants also asserted that
the questions of whether there was comparative negligence or whether additional injuries
were caused when Candice allegedly fell over her dogs are irrelevant to the issue of
proximate cause.
{¶35} On July 6, 2012, Appellees filed a brief in opposition. They argued that
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competent, credible evidence supported the jury's finding that their negligence was not
the proximate cause of Candice's injury.
{¶36} On August 20, 2012, Appellants filed a supplemental brief in support of the
motion. The brief included specific instances of testimony and a portion of Appellees'
closing argument which supported Appellants' assertion in their original motion for JNOV/
motion for a new trial.
{¶37} On August 23, 2012, Appellees filed a supplemental brief in opposition to
the motion for JNOV/motion for a new trial. They maintained their argument that
competent, credible evidence supported the jury's decision. They also argued that the
jury's finding of negligence but not proximate cause demonstrated the jury's belief that
Candice was solely responsible for her injuries.
{¶38} On September 13, 2012, the court denied Appellants' motion for JNOV/
motion for a new trial. At this time, the court also denied a motion for an oral hearing,
which had been made on August 24, 2012. The court concluded that reasonable minds
could come to different conclusions based on the evidence. The court noted that at least
one witness testified that Candice claimed she was not injured as a result of being
knocked to the ground at the Montgomery household and further that Candice refused
immediate medical attention.
Motion for JNOV and New Trial
{¶39} In their sole assignment of error, Appellants argue:
{¶40} "The Trial Court erred in denying Plaintiff's Motion for Judgment
Notwithstanding the Verdict as all of the testimony and evidence indicate that the
Plaintiff/Appellant suffered some degree of injury during the altercation between the
Defendants thus rendering the Jury's determination on the issue of proximate cause
against the manifest weight of the evidence."
{¶41} Although Appellants only reference the JNOV ruling in their assignment of
error, some of their substantive arguments also attack the trial court's ruling on the new
trial motion. For instance, they raise arguments concerning the weight of the evidence,
even though manifest weight is not a proper basis for a JNOV motion. See Dixon v.
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O'Brien, 7th Dist. No. 12 MA 19, 2013-Ohio-1429, ¶21-22.
{¶42} In the trial court, Appellants filed one motion which sought JNOV and
alternatively a new trial, which the court disposed of in one judgment entry, from which
Appellants appealed. Since the standard of review and the applicable law for JNOV and
new trial motions are distinct and despite the fact that Appellants fail to articulate these
differences in their brief, we will address each ruling separately.
JNOV
{¶43} A trial court must grant a motion for JNOV pursuant to Civ.R. 50(B) if,
construing the evidence most strongly in favor of the party against whom the motion is
directed, it finds that upon any determinative issue reasonable minds could come to but
one conclusion based upon the evidence, and that conclusion is adverse to the non-
moving party. Nickell v. Gonzalez, 17 Ohio St.3d 136, 137, 447 N.E.2d 1145 (1985). On
the other hand, if reasonable minds could reach different conclusions, the motion must be
denied. Osler v. Lorain, 28 Ohio St.3d 345, 504 N.E.2d 19 (1986).
{¶44} When performing this analysis a court shall neither weigh the evidence nor
evaluate the credibility of witnesses. Malone v. Courtyard by Marriott L.P., 74 Ohio St.3d
440, 445, 659 N.E.2d 1242 (1996). "Rather, the court is confronted solely with a question
of law: Was there sufficient material evidence presented at trial on this issue to create a
factual question for the jury?" Id. A trial court's ruling on a motion for JNOV is reviewed
de novo. Goodyear Tire & Rubber Co. v. Aetna Cas. & Sur. Co., 95 Ohio St.3d 512,
2002-Ohio-2842, 769 N.E.2d 835, ¶4.
{¶45} Appellants claim that every witness with personal knowledge of the incident
testified that Candice suffered an injury at the scene, and further that Appellees
essentially conceded proximate cause at trial. Thus, reasonable minds could only
conclude that Appellees' negligence was the proximate cause of Candice's injury.
{¶46} Appellants are incorrect that Appellees conceded proximate cause at trial.
Although they quote a portion of defense counsel's closing arguments in an attempt to
demonstrate otherwise, defense counsel was merely stating that Appellants were entitled
to damages if they found Candice less than 50% negligent. The trial court correctly found
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in its judgment entry that Appellees never conceded proximate cause and that the
evidence, jury instructions and jury interrogatories placed the issue of proximate cause
squarely before the jury for its consideration.
{¶47} Viewing the evidence in the light most favorable to Appellees reasonable
minds could come to different conclusions about the outcome of the case. There was
testimony about two different potential causes of Candice's injury, namely the collision
between Scott and Nick, or Candice tripping over a dog cable upon her return home.
Candice did not seek immediate medical treatment after the collision incident and
according to Natalie, Candice stated that she was "fine" afterwards. Further, when
Candice did finally seek medical treatment she initially told hospital personnel that she
hurt her ankle when she tripped over her dogs, and then later told Dr. Paumier she had
fallen down three steps.
{¶48} Thus, based on all of the above, the trial court's denial of JNOV was proper.
New Trial Motion
{¶49} Civ.R. 59(A) provides several grounds upon which a party may base a
motion for new trial. Applicable to this appeal is subsection (6) which involves manifest
weight; specifically that the jury verdict is not sustained by the weight of the evidence.
Civ.R. 59(A)(6). Regardless of the subsection, "the purpose of Civ.R. 59(A) is to
empower the trial court to prevent a miscarriage of justice." Frazier v. Swierkos, 183 Ohio
App.3d 77, 2009-Ohio-3353, 915 N.E.2d 724 (7th Dist.), ¶8, citing Malone v. Courtyard by
Marriott L.P., 74 Ohio St.3d 440, 448, 659 N.E.2d 1242 (1996).
{¶50} In contrast to a JNOV ruling, a trial court's decision to overrule a motion for
a new trial is reviewed for abuse of discretion. Mannion v. Sandel, 91 Ohio St.3d 318,
321, 744 N.E.2d 759 (2001). An abuse of discretion means an error in judgment
involving a decision that is unreasonable based upon the record; that the appellate court
merely may have reached a different result is not enough. See Bergman v. Bergmann,
2d Dist. No. 25378, 2013-Ohio-715, ¶9; Hall-Davis v. Honeywell, Inc., 2d Dist. Nos. 2008
CA 1, 2008 CA 2, 2009-Ohio-531, ¶35.
{¶51} Appellants assert that the trial court erred in determining that there was
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sufficient competent evidence for the jury to conclude that the negligence of Appellees
was not the proximate cause of Appellants' damages, and rely on Hoschar v. Welton, 7th
Dist. No. 06 CO 20, 2007-Ohio-7196 and Enter v. Fettman, 5th Dist. No. 2005CA00023,
2005-Ohio-5525, in support of their argument.
{¶52} In Hoschar, the plaintiff filed suit as a result of personal injuries he sustained
from a motor vehicle accident. The defendant stipulated to her own negligence at trial,
but she disputed that the plaintiff's alleged injuries resulted from the accident. The
defendant extensively cross-examined the plaintiff's medical expert and challenged
plaintiff's and the doctor's credibility. However, the defendant did not dispute the plaintiff's
emergency medical treatment, diagnoses, or transport arising from the collision. Despite
this, the jury rendered a defense verdict and awarded the plaintiff no damages. The trial
court denied the plaintiff's new trial motion and the plaintiff appealed. Id. at ¶1-3.
{¶53} This court reversed and remanded for a new trial, explaining as follows:
In reviewing all of the relevant cases and in careful review of the
record, here, we must conclude that the evidence in this case combined
with the jury's question [during deliberations, specifically: "If we rule in favor
of the defendant can we still compensate to cover a portion of the medical
expenses?"] reveal that the jury lost its way when it failed to award
Appellant any compensation for his uncontested emergency treatment and
transport on the day of the accident. * * * [L]iability was admitted and there
was undisputed evidence of some resulting damage. A reasonably prudent
person in an accident of significant force would have sought emergency
treatment * * * While Appellee certainly contested the necessity of [one of
the doctor's] treatment in its entirety, and was successful in so doing, at no
time did Appellee contest the necessity or appropriateness of Appellant's
emergency transport or emergency care. Thus, we find that the trial court
abused its discretion in failing to order a new trial on this issue pursuant to
Civ.R. 59(A)(6).
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Id. at ¶37, 42.
{¶54} In Enter, the plaintiff appealed the trial court's denial of his motion for a new
trial, claiming that the jury erred in finding that the plaintiff's injuries were not proximately
caused by the defendant's negligence. There, defense counsel acknowledged in his
opening statement that the plaintiff suffered some injury from the accident. Defense
counsel also conceded liability and suggested a minimal damage award in closing
argument. Despite this, the jury awarded the plaintiff no damages. Id. at ¶3, 4, 27. The
Fifth District concluded that the jury clearly lost its way, noting while the evidence may
not have supported all of plaintiff's claimed injuries, it clearly demonstrated some injury
and that this, coupled with defense counsel's concessions, warranted a new trial. Id. at
¶70.
{¶55} As Appellees correctly point out, both Hoschar and Enter are distinguishable
from the present case, because in those cases liability for the accidents was not in
dispute. By contrast, in this case, there were no stipulations as to liability; the issues of
negligence, proximate cause and damages were all submitted to the jury for decision.
{¶56} Still, Appellants argue that the jury's verdict finding negligence but no
proximate cause cannot be reconciled with the evidence presented at trial. Appellees
counter with two rationales to explain the jury's verdict.
{¶57} First, Appellees argue that the jury could have concluded Candice was more
than 50% negligent or that she impliedly assumed the risk of harm and was therefore
essentially responsible for her own injuries. Under Ohio law, the defense of implied
assumption of risk has been merged with comparative negligence. See Anderson v.
Ceccardi, 6 Ohio St.3d 110, 451 N.E.2d 780 (1983).
{¶58} The problem with this theory lies in the state of the record before us. Any
interrogatories concerning comparative negligence that may have been presented to the
jury are not a part of the trial court record and consequently, not part of the record on
appeal.
{¶59} As part of its jury instructions, the trial court summarized the relevant issues
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for the jury as follows:
In this case Plaintiff, Candice Downie, claims that on May 22nd,
2010, Defendant, Scott Montgomery and Nicholas Perez, negligently
caused her personal injury. Plaintiff James Downie claims that the
Defendants' negligence caused him to sustain a loss of his wife's
consortium and companionship. Defendants Montgomery and Perez deny
that they were negligent in causing injury or damage to the Plaintiff and
further raise the affirmative defenses that the Plaintiff Candice Downie was
herself negligent or that she impliedly assumed the risk of her own injury.
This leaves for your decision the disputed issues which are
summarized as follows: Were either Defendant Montgomery or Perez
negligent? If so was the negligence of either Defendant a proximate cause
of any injury or damage to the Plaintiffs? Was Plaintiff, Candice Downie,
negligent in any respect or did she impliedly assume the risk of her own
injury? If so, did Candice Downie's own negligence or implied assumption
of the risk proximately cause injury or damage to the Plaintiffs? What
percentage of negligence, if any, do you attribute to the Defendants and to
Plaintiff Candice Downie respectively? If you find these issues in favor of
the Plaintiffs you will also determine a sum of money that will fairly and
reasonably compensate them for their injuries and damages.
{¶60} Both sides submitted proposed interrogatories prior to trial; however, neither
versions were used as written. While off the record during a break following closing
arguments, the trial court apparently edited the interrogatories , "[t]he other matter is over
the last hour and a half through the noon hour we did make some changes to the jury - -
proposed jury instructions and jury interrogatories. I have given a final version to counsel.
It is my intention to read those, essentially verbatim, to the jury and then provide a written
copy to them for their use as well."
{¶61} Although at least three interrogatories were presented to the jury, only one
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interrogatory was read verbatim in open court:
At this point, ladies and gentlemen, I want to give you some
instructions on how to complete the interrogatories.
All right, interrogatories are simply questions that you will have in the
jury room with you.
You will be given written questions called "Interrogatories." The
purpose of the jury interrogatories are to test the General Verdict. It is
important that they are filled out correctly and in a consistent manner. You
will start with Interrogatory A.
Interrogatory A asks, "Was Defendant Scott Montgomery negligent?"
Then it instructs you to circle your answer in ink, yes or no and then it
instructs you that at least six jurors must sign in ink. And there are blank
spaces on each interrogatory for signatures.
At least six jurors must agree on the answer to Interrogatory A. It can
be more than six but it cannot be less than six. Each person agreeing to the
answer must sign his or her name in ink on the lines provided at the bottom
of Interrogatory A. The foreperson will circle the agreed upon answer even if
the foreperson does not sign the interrogatory.
You must follow carefully the directions at the bottom of each
interrogatory. The directions will instruct you on how to proceed depending
on your answer. The directions will also tell you which of you may participate
in answering an interrogatory, as well as what questions to answer and
whether to sign the General Verdict for the Plaintiffs or the General Verdict
for the Defendants. Again, an interrogatory is answered when at least six
jurors agree. It may be more but it cannot be less. Each person agreeing
shall sign his or her name in ink at the bottom of the interrogatory on the
lines provided. If at least six jurors cannot agree on an answers [sic] the
instructions direct you to report that fact to the bailiff.
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The foreperson shall also have the duty of returning the
interrogatories to the courtroom whether or not they are signed.
In order to conclude this case it is necessary that at least six members
of the jury agree upon a general verdict. * * *
{¶62} Following deliberations, the jury returned with a General Verdict in favor of
Appellees. The verdict received six votes. The jury answered yes, with seven votes, to
Interrogatory A, which asked "Was Defendant Scott Montgomery negligent?" Seven
jurors also answered yes to Interrogatory B, which asked "Was Defendant Nicholas Perez
negligent?" Then six jurors answered no to Interrogatory C, which asked "Was the
negligence of Defendant Scott Montgomery or Nicholas Perez a direct and proximate
cause of the injury to Plaintiff Candice Downie?"
{¶63} We can glean from the trial court's oral instructions to the jury, quoted
above, that there were additional interrogatories submitted to them aside from
Interrogatories A, B, and C. The trial court's initial instructions outlining the issues in the
case states that comparative negligence would be an issue for the jury to determine. The
Revised Code requires interrogatories for that purpose. See R.C. 2315.34:
If contributory fault is asserted and established as an affirmative
defense to a tort claim,* * * the jury in a jury action shall return a general
verdict accompanied by answers to interrogatories, that shall specify the
following:
(A) The total amount of the compensatory damages that would have
been recoverable on that tort claim but for the tortious conduct of the
plaintiff;
(B) The portion of the compensatory damages specified under
division (A) of this section that represents economic loss;
(C) The portion of the compensatory damages specified under
division (A) of this section that represents noneconomic loss;
(D) The percentage of tortious conduct attributable to all persons as
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determined pursuant to section 2307.23 of the Revised Code.
{¶64} Here the jury would not have needed to complete the contributory fault
interrogatories in light of its determination about proximate cause. However, any
unsigned interrogatories should have been returned to the trial court following
deliberations. The trial court did instruct the jury foreman that "[t]he foreperson shall also
have the duty of returning the interrogatories to the courtroom whether or not they are
signed."
{¶65} Yet for reasons unknown, any additional unsigned interrogatories were not
returned to the trial court as instructed. Significantly, counsel declined the trial court's
offer to inspect the interrogatories or to poll the jury.
{¶66} In light of the state of the record, we decline Appellees' suggestion that we
should presume the jury must have concluded Candice was more than 50% negligent and
therefore essentially responsible for her own injuries.
{¶67} However, Appellees proffer a second rationale for the jury's verdict: that
the jury completely rejected Appellants' trial theory that Candice sustained the injury due
to her involvement in the fight, instead believing the defense theory that the injury was
caused by her tripping over her dogs upon her return home. We agree.
{¶68} We note from the outset that Interrogatory C asked the jury: "Was the
negligence of Defendant Scott Montgomery or Nicholas Perez a direct and proximate
cause of the injury to Plaintiff Candice Downie?" Appellants' theory of the case at trial
was that the fight and ensuing collision between Appellees was the cause of the injury;
i.e., the severe trauma to Candice's ankle that resulted in a dislocation and the ankle
being broken into many pieces, necessitating several surgeries. Appellants completely
disavowed any notion that Candice injured herself upon her return home.
{¶69} As the trial court correctly reasoned in its judgment entry, this case included
the often conflicting testimony of several different witnesses. Further, resolution of this
case came down to credibility determinations best made by the trier of fact. The jury
could have reasonably determined that Candice was simply not credible based on her
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inconsistent accounts of what happened that day.
{¶70} Candice provided at least three different stories to medical personnel
regarding the cause of her injury. According to medical records, when her ankle was x-
rayed upon admission to the emergency department, she explained the injury was caused
when she "fell down steps while walking a dog." At trial, Candice recalled that she initially
told medical personnel that she tripped over her dogs. In his initial report, Dr. Paumier
states that Candice told him that she injured her ankle when she "fell down three steps."
Then months later, "at the conclusion of the healing process * * * on or about September
2nd, 2010," the same day Appellants' attorneys requested medical records from Dr.
Paumier, Candice phoned Dr. Paumier to tell him her injury had been caused by "an
altercation between stepfather and stepson where she basically got in the middle of the
two, [and] was tackled by the stepson."
{¶71} Candice claimed her she initially lied to hospital staff about the cause of her
injury to protect her friend Kelley. She testified that she later had a change of heart and
called police to report that her injury had been caused by her involvement in the fight
between Appellees. Yet no such police report was offered or admitted into evidence.
Candice did not change her story about what caused her injury to Dr. Paumier until
months later when medical records were requested by her attorneys for this lawsuit. This
creates serious credibility questions.
{¶72} Further, there was conflicting testimony by witnesses about what happened
when Candice returned home after the fight. Kelley, Nick and Natalie all testified that
while Candice was waiting to enter her apartment she was knocked down to the ground
by her dog, which was tied to a cable. Although Candice and Jim deny that this
happened, as explained above, Candice initially reported to hospital personnel that she
injured her ankle by tripping over her dogs or when she fell while walking her dogs.
{¶73} There is competent, credible evidence demonstrating that Candice's fall
upon returning home, and not her involvement in the fight between Nick and Scott, was
the proximate cause of the injury. "The injury," per Appellants' theory of the case at trial
was the severe injury to Candice's ankle that resulted in multiple fractures and required
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surgeries to repair. Accordingly, based on all of the above, the trial court did not abuse its
discretion in overruling the new trial motion.
Conclusion
{¶74} Appellants' assignment of error is meritless. The trial court properly denied
the motion for JNOV as there was sufficient evidence presented at trial so as to create a
jury question regarding proximate cause. The trial court did not abuse its discretion in
denying the new trial motion as the jury did not lose its way and the verdict was not
manifestly unjust. Accordingly, the judgment of the trial court is affirmed.
Vukovich, J., concurs.
Waite, J., concurs in judgment only.