COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 61324, 61325 DENNIS PROPST, ET AL. : : PLAINTIFFS-APPELLEES : JOURNAL ENTRY : v. : AND : CAROLYN FONEY : OPINION : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 31, 1992 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COMMON PLEAS COURT CASE NOS. CP-126526 and CP-126366 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee, Candy Propst: MARK J. OBRAL (#0006019) DONALD E. CARAVONA & ASSOC. 1900 TERMINAL TOWER CLEVELAND, OH 4413-1918 For Plaintiff-Appellee, Dennis Propst: JOHN P. HILDEBRAND (#00025124) HILDEBRAND, WILLIAMS & FARRELL 21430 LORAIN ROAD FAIRVIEW PARK, OH 44126 For Defendant-Appellant: FREDRIC E. KRAMER (#00012382) McNEAL, SCHICK, ARCHIBALD & BIRO ILLUMINATING BUILDING - 10TH CLEVELAND, OH 44113 -2- SPELLACY, J.: Defendant-appellant Carolyn Foney appeals from the trial court's decision to grant a new trial under Civ. R. 59 and raises the following assignment of error: THE TRIAL COURT IMPROPERLY GRANTED PLAINTIFFS' MOTIONS FOR NEW TRIAL, SAID DECISION BEING BOTH CONTRARY TO LAW AND AN ABUSE OF DISCRETION. We find that Foney's assignment of error lacks merit and affirm the trial court's decision. I. This appeal arises out of an accident involving a car driven by Foney and a motorcycle operated by Dennis Propst, with Candy Propst, his wife, riding as a passenger. The Propsts filed separate negligence actions against Foney. Candy Propst's action included Dennis Propst as a defendant. Foney filed a cross- claim against Dennis Propst. These two cases were consolidated for trial. At trial the following pertinent evidence was adduced: On the evening of April 14, 1985, on Interstate-71 the front of the Propsts' motorcycle came into contact with the rear of Foney's car, throwing them to the ground and causing serious injuries. Neither Foney nor her passenger were aware of the motorcycle when the accident occurred. According to Foney, she entered Interstate-71 at the West 130th Street entrance ramp and travelled four car lengths in the lane farthest to the right -3- before moving over one lane. Foney testified that seconds after entering Interstate-71 she felt a "bump" and saw sparks. After the accident Foney drove about half a mile to a police car parked on the side of the road. She did not realize what had happened until she returned to the scene of the accident. Foney's passenger testified that Foney had been driving along normally when the car suddenly began to "bump" and "jerk." She stated that Foney did not change lanes immediately prior to the accident and that Foney did not move into the third lane from the right until after the accident occurred. Dennis and Candy Propst suffered memory loss as a result of their injuries and were unable to recall the accident. James Steiner, who stopped to help after the accident, testified that he had been driving behind Foney's car for about five minutes when he saw it "cut" to the right and hit the front wheel of the Propsts' motorcycle. He stated that Dennis Propst could not have avoided the accident. He further testified that the accident occurred a few miles after the West 130th Street entrance ramp and that the impact occurred in the third lane from the right. Valerie Steiner, James Steiner's wife, did not see the accident. She did, however, hear her husband tell her to look at a car because it had just "cut" a motorcycle off. A police officer who investigated the accident found several gouge marks in the third lane. On the day of the accident, the Propsts attended a picnic from 11:30 A.M. until 6:00 P.M., where Dennis Propst drank five -4- to six beers. Medical reports for the Propsts were admitted as evidence. Some of these reports indicated that Dennis Propst was intoxicated when he was admitted to the hospital. During the course of the trial, the trial court granted motions for directed verdict on Foney's cross-claim against Dennis Propst and Candy Propsts' claim against Dennis Propst. At the conclusion of the trial, the jury found for Foney. In response, the Propsts filed motions for new trial under Civ. R.59, which the trial court granted based on, among other grounds, its conclusion that the jury's verdict was not supported by the weight of the evidence. II. Civ. R. 59 provides: A new trial may be granted to all or any of the parties and on all or part of the issues upon any of the following grounds: *** (6) The judgment is not sustained by the weight of the evidence ***. A trial court's decision to grant a new trial based on the grounds that the verdict is not sustained by the evidence lies within its sound discretion and will not be reversed absent an abuse of that discretion. Rohde v. Farmer (1970), 23 Ohio St.2d 82, paragraph one of the syllabus; See, also, Fields v. Dailey (1990), 68 Ohio App.3d 33, 38-39. An abuse of discretion "involves more than an error of law or of judgment; it connotes an attitude on the part of the court that is unreasonable, unconscionable or arbitrary." Franklin -5- Cty. Sheriff's Dept. v. State Emp. Relations Bd. (1992), 63 Ohio St.3d 498, 506. When determining whether a trial court abused its discretion in granting a new trial on the basis that the judgment is not sustained by the evidence, a reviewing court must view the "evidence favorably to the trial court's action rather than to the original jury verdict." Rohde, 23 Ohio St.2d at 93; See, also, Fields, 68 Ohio App.3d at 39; Krejci v. Halak (1986), 34 Ohio App.3d 1, 4. Viewing the evidence in favor of the trial court's decision to grant a new trial, we find that it did not abuse its discretion. The only witness who actually saw, and remembers, the accident testified that Foney's car cut off the Propsts' motorcycle and that there was nothing Dennis Propst could have done to prevent the accident. Foney admitted that the impact occurred several seconds after she entered Interstate-71 and that she did not see the motorcycle until she returned to the scene of the accident. Finally, the evidence does not show that Dennis Propst's intoxication contributed to the accident. Accordingly, Foney's assignment of error is not well taken. Judgment affirmed. -6- It is ordered that appellees recover of appellant their costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DAVID T. MATIA, C.J., CONCURS; KRUPANSKY, J., DISSENTS. (See Dissenting Opinion Attached) LEO M. SPELLACY JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 61324 AND 61325 DENNIS PROPST, ET AL : : Plaintiffs-appellees : : DISSENTING -vs- : : OPINION CAROLYN FONEY : : Defendant-appellant : DATE DECEMBER 31, 1992 KRUPANSKY, J., DISSENTING: I respectfully dissent. I would reverse the order of the trial court granting plaintiffs Candy and Dennis Propst a new trial and enter final judgment in favor of defendant consistent with the jury verdict. The majority opinion, in its haste to reach its conclusions, improperly ignores the record sub judice. The principal basis for the trial court's order granting plaintiffs a new trial related to the introduction of evidence at trial concerning the consumption of alcohol by plaintiffs prior to embarking on their ill-fated motorcycle ride. However, the trial court and majority opinion both ignore the fact that such evidence was introduced by plaintiffs. -2- The Ohio Supreme Court has held contrary to the majority opinion that a party may not claim error invited or induced by the party's deliberate trial strategy to obtain a new trial as in the case sub judice. State v. Seiber (1990), 56 Ohio St. 3d 4, 17. The record unambiguously demonstrates that counsel for Candy and Dennis Propst each repeatedly referred during opening statements to their consumption of beer and/or drugs prior to the motorcycle accident. Moreover, counsel for Candy Propst elicited testimony from Dennis Propst during trial concerning his consumption of several beers, and from Candy Propst concerning her ingestion of a "quaalude" and a "beer" prior to returning home by car to obtain the motorcycle. Finally, the record demonstrates the parties stipulated prior to trial to the admissibility into evidence during trial of various medical records and a hospital discharge summary referring to the consumption of alcohol and intoxication of Dennis Propst. The majority opinion also circumvents the well established rule that a stipulation to the admissibility of hospital records precludes any subsequent challenge or claim of error relating to the introduction of such records. See Lentz v. Schnippel (1991), 71 Ohio App. 3d 206, 210-211; Loudy v. Faries (1985), 22 Ohio App. 3d 17, 19; see also Dubecky v. Horvitz Co. (1990), 64 Ohio App. 3d 726, 742. Once these statements and medical records were admitted into evidence, the jurors were free to evaluate the significance of the evidence based upon their common experience and the trial court instructions concerning these issues -3- requested by Dennis Propst. Loudy v. Faries, supra; Debecky v. Horvitz Co., supra. The majority opinion likewise ignores the fact that the trial court's order granting a new trial on the grounds that the jury verdict was against the manifest weight of the evidence resulted from the improper exclusion of the evidence relating to plaintiffs alcohol consumption. The record indicates the trial court improperly disregarded the evidence concerning plaintiffs' consumption of alcohol prior to assessing the manifest weight of the remaining evidence presented during trial. The trial court order does not state the jury verdict was against the manifest weight of the totality of the evidence actually presented in the case including the consumption of alcohol by plaintiffs. The improper exclusion of plaintiffs consumption of alcohol resulted in a skewed analysis of the manifest weight of the evidence supporting the jury verdict and there is no indication the trial court would have granted a new trial if it had properly considered the totality of all the evidence including plaintiffs alcohol consumption. Under the circumstances, affirming the order granting a new trial would result in manifest injustice. It is well established that a trial court may not substitute its judgment for that of the jury when there is substantial evidence to support the jury's verdict as in the case sub judice. Dillon v. Bundy (1991), 72 Ohio App. 3d 767, 773-774. The majority opinion recognizes the evidence presented by defendant supports the jury verdict, ante at 3, but permits the trial court -4- to baldly invade the province of the jury and ignore this evidence. The reasoning offered by the trial court demonstrates a textbook case of an abuse of discretion. Excerpt from the trial court's reasoning follows: The verdict indicates that the Jury entirely disregarded the testimony of the Steiners, (although they appeared to the Court to be extremely credible witnesses) and placed full blame on Dennis Propst. We can only surmise that this decision was based on the hearsay statement in the hospital chart as to his intoxication. (Emphasis added). (Trial Court's Journal Entry and Opinion at p. 5). An appellate court should reinstate a jury verdict and reverse an order granting a new trial under such circumstances. Verbon v. Pennese (1982), 7 Ohio App. 3d 182, 184. The weight of the evidence and credibility of the witnesses are primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St. 2d 230, syllabus paragraph one. Finally, the remaining alternate ground relied upon by the trial court when granting plaintiffs a new trial is no more convincing since the record contains no indication the jury verdict resulted from the instructions delivered by the trial court in the case. Orders granting a new trial on questions of law such as this will be reversed on appeal when the challenged action does not amount to prejudicial error as in the case sub judice. Sanders v. Mt. Sinai Hospital (1985), 21 Ohio App. 3d 249. -5- The record demonstrates the trial court submitted the case to the jury upon general negligence principles without particularized instructions relating to the parties respective obligations when changing lanes or to maintain a "clear distance ahead." Plaintiffs did not request the "lane change" instruction until prompted by defendant's request for the "clear distance ahead" instruction immediately prior to the submission of the case to the jury and after the trial court had charged the jury. The trial court denied both requests for additional instructions and plaintiffs did not proffer their proposed instructions. The record demonstrates that error, if any, in the omission of the "lane change" instruction was harmless. The evidence supporting the charge was dubious since the sole "eyewitness" presented by plaintiffs stated the accident occurred in a lane which contradicted the physical evidence and other testimony. Moreover, the jury clearly rejected plaintiffs version of the accident and returned a verdict specifically finding Dennis Propst 100% negligent and defendant 0% negligent without requesting additional instructions. See Sech v. Rogers (1983), 6 Ohio St. 3d 462. Under the circumstances, granting a new trial constitutes a waste of judicial resources and does not serve the interests of justice. Since the majority opinion fails to adequately address these issues, I respectfully dissent. .