In order to survive a directed verdict, appellants here must have shown that appellees acted with "actual malice." There is no question that appellants presented no evidence on the first prong of the test in Preston v. Murty (1987), 32 Ohio St. 3d 334,512 N.E.2d 1174. *Page 93
Pursuant to the majority opinion, the second prong was met in that there was a showing of "conscious disregard for the rights and safety of other persons that has a great probability of causing substantial harm." Preston, supra. While it is very clear that a jury could have found negligence on the part of Marriott, the uncontroverted testimony showed that (1) there was not a conscious disregard for rights by virtue of the security measures in place; and (2) there was no showing that there was a great probability of causing substantial harm. Failure on either one of those issues would be sufficient to allow the directed verdict. The failure of any evidence at all on either made the decision of the trial court proper. While acknowledging that the evidence must be construed most strongly in appellants' favor, when there is no evidence and the uncontroverted evidence is to the contrary, a directed verdict is proper.
I additionally cannot concur with the reversal of the granting of a motion for a new trial pursuant to Civ.R. 59(A)(6). The trial court decided the evidence presented in making its decision and, in particular, found the verdict to be against the manifest weight of the evidence. The standard, as properly indicated by the majority, is "an abuse of discretion." That, of course, requires that the decision of the trial court be "unreasonable, arbitrary or unconscionable." While it may be that it is arguable whether or not the trial court should have granted a motion for a new trial, that is not the standard. The trial court was in a position to do the limited weighing that it is required to do in considering a motion for new trial and that decision should not be disturbed upon appeal.