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Berry v. Paint Valley Supply, LLC

Court of Appeals of Ohio, Fourth District, Highland

May 31, 2017

Nathaniel Berry, Individually and as Administrator of the Estate of Heather Renee Berry, Deceased, Plaintiff-Appellant,
Paint Valley Supply, LLC, et al., Defendants-Appellees.

          Douglas J. Suter and A.J. Hensel, Hahn Loeser & Parks, L.L.P., Columbus, OH, for appellant.

          M. Jason Founds, Gallagher, Gams, Pryor, Tallan & Littrell, L.L.P., Columbus, OH, for appellee Paint Valley Supply, LLC.

          Ray C. Freudiger and David J. Oberly, Marshall, Dennehey, Warner, Coleman & Goggin, Cincinnati, OH, for appellee Bradley Williams.



         {¶1} Nathaniel Berry instituted a wrongful-death action on behalf of his wife, who was killed by a large grain delivery truck operated by Bradley Williams at Paint Valley Supply, LLC. ("Paint Valley"). Following a lengthy trial the jury returned a verdict finding in favor of Paint Valley and Williams.

         {¶2} In his first assignment of error Mr. Berry asserts that the trial court erred in permitting Williams's counsel to elicit improper and prejudicial lay testimony from a police officer at trial, and then to mischaracterize the police officer as an expert in closing argument. Because Mr. Berry failed to object at trial, he forfeited all but plain error.

         {¶3} Moreover, Mr. Berry invited any potential error by asking the police officer on cross-examination whether he had cited Williams for the accident and whether he had training in the operation of commercial vehicles. Williams's counsel then elicited testimony on redirect examination of the police officer that confirmed the officer had a commercial driver's license and opined that he would not have done anything differently than Williams in driving the truck. That testimony was not on the forbidden subject of the cause of the accident.

         {¶4} Furthermore, despite Mr. Berry's complaint about closing argument, the police officer had been qualified as an expert on operating commercial vehicles. And the trial court instructed the jury that the parties' closing arguments did not constitute evidence.

         {¶5} Finally, Williams's accident reconstruction expert testified that Williams exercised ordinary care in the operation of his delivery truck on the date of the accident and that Mrs. Berry was the negligent party on that date. Under these circumstances this is not one of the extremely rare civil cases in which plain error challenging the legitimacy of the underlying judicial process itself occurred. We overrule Mr. Berry's first assignment of error.

         {¶6} Next Mr. Berry contends that the trial court erred in overruling his motion for directed verdict against Williams because the uncontroverted evidence at trial established that Williams was negligent per se based on his violation of R.C. 4511.38. But Mr. Berry cites no authority holding that the statute applies to accidents occurring on private property, and precedent establishes otherwise. Because Mrs. Berry's death resulted from an accident occurring on Paint Valley's private access ramp, R.C. 4511.38 did not apply. We overrule Nathaniel's second assignment of error.

         {¶7} Mr. Berry also argues that the trial court erred in denying his motion for judgment notwithstanding the verdict, or in the alternative, for new trial because the jury verdicts were against the manifest weight of the evidence. But Williams's expert testified that Mrs. Berry's negligence in talking on her cell phone and stepping onto the access ramp was the cause of the accident that resulted in her death, and that Williams was not negligent in operating his delivery truck after observing that Mrs. Berry was off the ramp, not within his path when he began backing up. In addition, Williams testified that his backup lights were operating on the date of the accident. The jury could have properly credited this testimony to conclude that Williams was not negligent and that although Paint Valley failed to maintain the appropriate standard of care, Heather's negligence in talking on her cell phone and moving into the path of the backing delivery truck was the sole proximate cause of her death. Under these circumstances, the jury did not clearly lose its way and create such a manifest miscarriage of justice that we must reverse its verdicts. We overrule Mr. Berry's third assignment of error and affirm the judgment of the trial court.

         I. FACTS

         {¶8} In March 2015, Nathaniel Berry, individually and as the administrator of the estate of his deceased wife, Heather Berry, filed a complaint in the Highland County Court of Common Pleas raising several claims, including negligence, wrongful-death, and survivorship claims, against Paint Valley, Bradley Williams, and William Baldwin, Sr. The defendants filed motions for partial summary judgment, and Mr. Berry dismissed several claims. The trial court granted summary judgment in favor of Baldwin on Mr. Berry's claims against him.

         {¶9} The case proceeded to a jury trial on Mr. Berry's remaining claims against Paint Valley and Williams, and produced the following evidence. Michael Reveal owned Paint Valley, a feed, seed, and farm supply store in existence from 2000 until it went out of business in 2012. Paint Valley bought grain to create feed. Before 2007, trucks delivering grain to Paint Valley's receiving pit could either drive straight in or back up a store access ramp adjacent to a public alley. In 2007, a delivery truck broke a corner board near weight scales in the pit, which forced delivery vehicles to exclusively back up the ramp to deliver grain until the incident in 2010.

         {¶10} Nathaniel Berry is a farmer who started working for Paint Valley when he was still in high school in 2006. In 2008, he married Heather, his childhood sweetheart. Mr. Berry estimated that Mrs. Berry had been at the Paint Valley store about 360 times from 2007 until 2010 and that trucks had backed up the store ramp about 750 times to a grain pit when delivering grain. According to Paint Valley employee Scott Stephens, as a frequent visitor, Mrs. Berry was aware that trucks travelled up the ramp to Paint Valley on a regular basis.

         {¶11} Bradley Williams is a farmer, who with his grandfather, William Baldwin, Sr., supplied grain to Paint Valley to make animal feed. On the evening of May 7, 2010, Reveal contacted Williams and asked him if he could deliver a load of corn to Paint Valley the next day. The next morning, Reveal told Mr. Berry and Stephens that they would get a delivery of corn that day.

         {¶12} On the morning of May 8, 2010, Mrs. Berry dropped her husband off at Paint Valley, but returned when he advised her that he had forgotten the keys to the warehouse. Mrs. Berry gave him the keys, and he opened the warehouse and gave the keys back to her so she could drive home. She then either received or initiated a personal cell phone call with her father's girlfriend. Meanwhile Mr. Berry began operating a forklift to move a pallet of feed. Mrs. Berry, who was still on her cell phone, began walking towards the back of the store.

         {¶13} That morning Williams drove a 1980 Chevrolet C-60 farm truck with a white cab and a red bed to deliver the corn to Paint Valley. The truck was 20 ft., 7 inches long, 8 ft., 8 inches high, and 8 ft. wide. The truck with the corn weighed 25, 950.

         {¶14} When Williams turned the truck down the alley adjacent to Paint Valley's ramp to its grain pit, he was travelling at less than five miles per hour and his truck was making a lot of noise. According to Williams he observed Mrs. Berry standing on the ramp on her cell phone looking in the general direction of the truck and alley. At that time, Mrs. Berry was only about four to six feet away from the truck. Williams then stopped his truck at the intersection of the alley with another alley and, in accordance with his normal practice, prepared to back up Paint Valley's ramp to the grain pit.

         {¶15} Williams checked both his driver's-side and passenger-side mirrors and saw that the ramp and alley were clear with no obstructions. He also saw Mrs. Berry now standing off the truck ramp in the back of a parked pickup truck. Williams testified that she was still looking in the direction of his truck. According to Williams Mrs. Berry's action in moving off the truck ramp after he first saw her indicated that she knew that he was going to back up and she had removed herself from the potential danger area by getting off the ramp. Williams testified that he felt that Mrs. Berry had ample warning of his truck because she had seen it, heard it because it was very noisy, and had moved off the ramp before he started to back it up. Although Williams did not honk his horn, yell at, or get out of his truck to warn her, he testified that his backup lights were functioning and a person who bought the truck soon thereafter confirmed that the backup lights worked.[1]

         {¶16} Normally, a truck would take about 13 seconds to back up the ramp to the grain pit. According to one of Mr. Berry's experts, it would have taken Mrs. Berry only about 2.2 seconds to step back onto the ramp from the side of it where Williams had seen her when he had started to back up. Williams testified that he backed his truck about halfway up the ramp when he felt a bump and immediately stopped. He had run over Mrs. Berry. Mr. Berry pulled his wife out from under the truck and Williams began doing CPR on her, but she died soon thereafter.

         {¶17} Mr. Berry testified that when the delivery truck first entered the alley adjacent to the ramp, he saw his wife on her cell phone next to the ramp. He next saw her on her cell phone standing off the ramp in front of a dumpster. Finally, he saw her on her cell phone standing on the ramp with her back towards the approaching truck, which was only a couple feet away from her before it ran her over. Mr. Berry testified that when he saw his wife off the ramp with the truck proceeding to back up to deliver corn, he didn't think that he needed to warn her because she was not in the truck's path. Mr. Berry admitted testifying in a prior deposition that he figured that she had seen the truck coming down the alley and did not need a warning from him.

         {¶18} Stephens testified that on that date, he saw Mrs. Berry standing talking on her cell phone off the ramp in the back of his parked pickup truck. He did not think that she would walk onto the truck ramp at that time, as Williams's truck pulled into the alley to deliver corn. Stephens then proceeded to open the pit doors so that Williams could dump the corn into the pit. Even though Stephens was 100-125 feet away from Williams's truck, he could hear it coming because of its ...

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