Court of Appeals of Ohio, Fourth District, Gallia
CHARLES L. CORDELL, Plaintiff-Appellant,
ANTHONY S. WHITE Defendant-Appellee.
R. Oryshkewych, Independence, Ohio, for Appellant.
J. Mollica, Mollica, Gall, Sloan & Sillery, Co., LPA,
Athens, Ohio, for Appellee.
DECISION AND JUDGMENT ENTRY
Matthew W. McFarland, Judge.
Charles L. Cordell appeals the August 16, 2017 judgment entry
of the Gallia County Court of Common Pleas, which found that
Appellant failed to show by a preponderance of the evidence
that Appellee Anthony S. White was negligent in a motor
vehicle/pedestrian accident in which Appellant sustained
personal injuries. Having fully reviewed the record, we find
the trial court's judgment is supported by some competent
and credible evidence. Therefore, we find no merit to
Appellant's sole assignment of error. As such, we
overrule the sole assignment of error and affirm the judgment
of the trial court.
This lawsuit arises from an incident occurring on October 7,
2015 on County Road 43 in Gallia County. On that date,
Appellant was performing landscaping work in a grassy area
bordering County Road 43. At the same time and place, around
10:15 a.m., Appellee was operating his motor vehicle on the
roadway on his way to work. Appellee's vehicle struck
Appellant, resulting in extreme personal injuries.
On July 18, 2016, Appellant filed a complaint alleging
personal injuries, pain and suffering, mental anguish, lost
wages, loss of enjoyment of life, and medical expenses of
over $80, 000.00. Appellee filed a timely answer,
acknowledging the incident but denying negligence in the
matter. Appellee demanded a jury trial.
The parties engaged in discovery and proceeded towards a jury
trial date. However, the parties later stipulated that they
would try only the issue of liability in a bench trial, and
that the trial court would determine the percentage of fault
to be attributed to each party. The bench trial took place on
July 20, 2017. Both parties testified. In addition, Appellant
presented testimony from Danny Kipp and Harvey Brown. Kipp
and Brown were also performing landscaping duties on the
In lieu of opening statements and closing arguments, the
parties submitted post-trial briefs. On August 16, 2017, the
trial court journalized its decision, finding that Appellant
had failed in his burden of proof to show by a preponderance
of the evidence that Appellee was negligent under the
circumstances. Having found that Appellant failed to carry
his burden of production, the trial court therefore
determined it was not necessary to determine if Appellant was
This timely appeal followed. Additional testimonial facts are
set forth below where relevant.
THE JUDGMENT OF THE TRIAL COURT IS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE."
"We will not reverse a trial court's judgment as
against the manifest weight 'if it is supported by some
competent, credible evidence.' " Wray v.
Gahm Properties, Ltd., 4th Dist. Scioto No.
16CA3775, 2018-Ohio-50, at ¶ 7. See Hardert
v. Neumann, 4th Dist. Adams No. 13CA977, 2014-Ohio-1770,
¶ 18, quoting Nolen v. Rase, 4th Dist. Scioto
No. 13CA3536, 2013-Ohio-5680, ¶ 9, citing Eastley v.
Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d
517, ¶ 14. When we review whether a trial court's
decision is against the manifest weight of the evidence, we
weigh the evidence and all reasonable inferences, consider
the credibility of witnesses and determine whether in
resolving conflicts in the evidence, the factfinder clearly
lost its way and created such a manifest miscarriage of
justice that we must reverse the judgment. Martin v.
Jones, 2015-Ohio-3168, 41 N.E.3d 123, ¶ 68 (4th
Dist). We will reverse a judgment as being against the
manifest weight of the evidence only in the exceptional case
where the evidence weighs heavily against the judgment.
Pinkerton v. Salyers, 4th Dist. Ross No. 13CA3388,
2015-Ohio-377, ¶ 18.
Appellant seeks reversal of the trial court's judgment
finding that Appellee was not negligent and that he was in
the roadway at the time of the accident as against the
manifest weight of the evidence. Appellant asserts that the
trial court failed to consider corroborative circumstantial
evidence he presented via his witnesses' testimony. By
contrast, Appellee responds that the trial court's
judgment is supported by competent and credible evidence and
that the judgment should be affirmed.
"It is fundamental that in order to establish a cause of
action for negligence, the plaintiff must show (1) the
existence of a duty, (2) a breach of duty, and (3) an injury
proximately resulting therefrom." Halloran v.
Barnard, 4th Dist. Lawrence No. 16CA9, 2017-Ohio-1069,
at ¶ 22, quoting Armstrong v. Best Buy Co., 99
Ohio St.3d 79, 2003-Ohio-2573, 788 N.E.2d 1088, ¶ 8,
quoting Menifee v. Ohio Welding Prod.,
Inc., 15 Ohio St.3d 75, 77, 15 OBR 179, 472 N.E.2d 707
(1984). "Liability in negligence is dependent upon the
existence of a proximate cause relationship between breach of
duty and injury suffered." Hester v. Dwivedi,
89 Ohio St.3d 575, 583, 733 N.E.2d 1161 (2000).
"Causation requires a factual nexus between the breach
and injury (i.e., actual cause) and a significant degree of
connectedness that justifies imposing liability (i.e.,
proximate cause)." Schirmer v. Mt. Auburn Obstetrics
& Gynecologic Assoc, Inc., 108 Ohio St.3d 494,
2006-Ohio-942, 844 N.E.2d 1160, ¶ 40, citing
Hester, 89 Ohio St.3d at 581. "The law of
negligence does not hold a defendant liable for damages that
the defendant did not cause." Hester, 89 Ohio
St.3d at 583. Consequently, a proximate relation between a
plaintiffs injury and a defendant's negligence is an
essential component of a negligence action.
Ordinary care is that degree of care which persons of
ordinary care and prudence are accustomed to observe under
the same or similar circumstances, and the degree of care
required of a motorist is always controlled by and depends
upon the " * * * place, circumstances, conditions, and
surroundings." Joyce v. Rough, 6th Dist. Lucas
No. L-10-1368, 2011-Ohio-3713, at ¶ 16, quoting
Foulke v. Beogher, 166 Ohio App.3d 435,
2006-Ohio-1411, 850 N.E.2d 1269, (3rd Dist.) at ¶ 9.
(Citations omitted.) Accord Mussivand v. David, 45
Ohio St.3d 314, 318, 544 N.E.2d 265 (1989). In the case at
bar, the trial court's decision cited the applicable Ohio
traffic laws. R.C. 4511.01 (UU) "Right-of-way"
provides in pertinent part:
"(1) The right of a vehicle, streetcar, trackless
trolley, or pedestrian to proceed uninterruptedly in a lawful
manner in the direction in which it or the individual is
moving in preference to another vehicle, streetcar, trackless
trolley, or pedestrian approaching from a ...