COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67069 LYNN AGIN, ET AL. : : : JOURNAL ENTRY Plaintiff-Appellants: : AND vs. : : OPINION THE GOLDBERG COMPANIES, INC., : ET AL. : : Defendant-Appellees : : DATE OF ANNOUNCEMENT OF DECISION: MAY 11, 1995 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-226311 JUDGMENT: JUDGMENT VACATED. CAUSE REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellants: JEFFREY A. LEIKIN JOEL LEVIN Nurenberg, Plevin, Heller & McCarthy 1370 Ontario Street, 1st Floor Cleveland, Ohio 44113-1792 For Defendant-Appellees: RICHARD R. KUEPPER Kuepper, Walker, Hawkins & Chulick 480 Skylight Office Tower 1660 West Second Street Cleveland, Ohio 44113-7550 - 2 - O'DONNELL, J.: On February 13, 1991, plaintiff Lynn Agin drove to the Huntington House, an apartment complex in University Heights which is owned by defendant Goldberg Properties, to pick up her mother and do some grocery shopping at Heinens. On their way back to the apartment, an all-day rain began to freeze. As plaintiff exited her vehicle around 5:00 p.m., she took two or three steps and fell on an icy ramp leading to her mother's building. At 4:00 p.m. that afternoon, the property manager, Victor Priore, had spread salt on the apartment sidewalks due to the rain and sleet. Agin sued Goldberg Properties asserting two causes of action, one for negligence in maintaining the property, and the other for breach of contract as a third-party beneficiary under the following clause contained in her mother's lease: 13(b) Landlord, its agents and employees shall not be liable for and Tenant waives all claims for injury to person or property damage sustained by Tenant, its invitees and guests or any person claiming through said persons resulting from but not limited to damage caused by water, snow frost, ice, steam, heat or cold *** in which the demised premises are located or of any person except for negligence of the Landlord ***. (Emphasis added). The matter proceeded to jury trial on February 27, 1994. When the plaintiff rested, defendant moved for directed verdict. The trial court granted the motion and dismissed the negligence - 3 - claim, but permitted the trial to proceed on the contract claim. At the close of all the evidence, the trial court charged the jury on negligence and comparative negligence and submitted interrogatories to the jury to determine respective percentages of each party as to negligence. The trial court neither charged nor submitted verdict forms on the issue of breach of contract. The jury found plaintiff 49.9% negligent, defendant 50.1% negligent, and further found that defendant's negligence was the proximate cause of plaintiff's injuries. The jury returned a verdict for plaintiff in the total amount of $27,540.52, which the trial judge reduced by 49.9%. Final judgment was entered for plaintiff for $13,797.80. Both parties have appealed. Plaintiff raises two assignments of error: I. THE JURY AWARD OF DAMAGES IN THE AMOUNT OF $27,540.52 WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND INSUFFICIENT AS A MATTER OF LAW. II. THE TRIAL COURT ERRED IN DIRECTING A VERDICT IN FAVOR OF THE DEFENDANT AT THE CLOSE OF ALL THE EVIDENCE ON THE ISSUE OF COMMON LAW NEGLIGENCE. Defendant raises three assignments of error: I. THE TRIAL COURT ERRED IN OVERRULING DEFENDANTS' MOTION FOR DIRECTED VERDICT. II. THE TRIAL COURT ERRED IN ITS INSTRUCTIONS TO THE JURY ON THE STANDARD OF CARE OWED TO PLAINTIFF LYNN AGIN. - 4 - III. THE TRIAL COURT ERRED IN REFUSING TO SUBMIT TO THE JURY AN INTERROGATORY ON WHETHER THE DEFENDANTS BREACHED THE LEASE AGREEMENT WITH ITS TENANT. We will jointly address plaintiff's second assignment of error and defendant's first and third assignments of error because these are interrelated and dispositive of this appeal. Plaintiff believes the trial court erred in directing a verdict for the defendant on the negligence claim. Defendant believes the court properly directed out negligence, but erred in neither directing a verdict nor charging the jury on the contract claim. We begin our analysis by examining the charge of the court. The record reveals that the court charged on negligence and comparative negligence and further submitted proper interrogatories to the jury to ascertain relative percentages of negligence, proximate cause, and damages. There was no charge on the contract claim, presumably because the exception contained in the applicable clause in the lease mentions negligence. The issue we must consider is the propriety of the court's charge vis-a-viz, the court's ruling at the close of plaintiff's case which dismissed negligence from the case. While we recognize that plaintiff's contract claim is dependent upon negligence, the trial court should have charged the jury on contract. The issue on that claim is whether defendant is guilty of breach of contract, determination of the plaintiff's status as a third-party beneficiary, waiver, and - 5 - damages. It is patently inconsistent for the trial judge to dismiss the issue of negligence from the case at the close of the plaintiff's case and then to charge the jury on that issue at the close of all the evidence. This is what happened in this case. In furtherance of its duty, the jury then returned a verdict for the plaintiff on the issue of negligence. This verdict is irreconcilable with the directed verdict granted by the trial judge at the close of the plaintiff's case. Civ. R. 50 sets forth the test to be utilized when considering whether or not to direct a verdict. In relevant part Civ. R. 50 states: "When *** the trial court, after construing the evidence most strongly in favor of the party against whom the motion is directed, finds that upon any determinative issue reasonable minds could come to but one conclusion *** and the conclusion is adverse to such party, the court shall sustain the motion and direct a verdict ***." Here, the reasonable mind of the experienced trial judge cannot be reconciled with the reasonable minds of the members of the jury. We are unable to find, based on the record, either that the trial judge or the jury erred in reaching these separate, inconsistent verdicts, and cannot therefore affirm one or reverse the other. Since the trial court failed to instruct the jury on the plaintiff's contract claim, but did submit the issue of negligence after it had directed negligence out of the case, we determine this is plain error. We find these assignments of - 6 - error are well taken and are compelled to vacate the judgment and remand the case for trial de novo. Plaintiff's first assignment of error alleging the jury award was against the manifest weight of evidence and insufficient as a matter of law is moot because we have remanded the matter for a new trial. Finally, defendant's second assignment of error regarding the standard of care owed to plaintiff is also moot. We call attention however, to Shump v. First-Cont. Robinwood (1994), 71 Ohio St.3d 414, regarding duty owed by a landlord and Lauerick v. Childrens Hosp. (1988), 43 Ohio App.3d 201, regarding status as a third-party beneficiary Judgment vacated. Cause remanded. - 7 - Judgment vacated. This cause is remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellant(s) recover of said appellee(s) costs herein. It is ordered that a special mandate be sent to said 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. SPELLACY, P.J., and NUGENT, J., CONCUR JUDGE TERRENCE O'DONNELL N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, .