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Cordell v. White

Court of Appeals of Ohio, Fourth District, Gallia

May 7, 2018

CHARLES L. CORDELL, Plaintiff-Appellant,
ANTHONY S. WHITE Defendant-Appellee.

          George R. Oryshkewych, Independence, Ohio, for Appellant.

          Andrew J. Mollica, Mollica, Gall, Sloan & Sillery, Co., LPA, Athens, Ohio, for Appellee.


          Matthew W. McFarland, Judge.

         {¶1} 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.


         {¶2} This lawsuit arises from an incident occurring on October 7, 2015 on County Road 43 in Gallia County.[1] 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.

         {¶3} 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.

         {¶4} 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 accident date.

         {¶5} 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 also negligent.

         {¶6} This timely appeal followed. Additional testimonial facts are set forth below where relevant.




         {¶7} "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.


         {¶8} 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.

         {¶9} "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.

         {¶10} 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 ...

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