COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68236/68922 PAUL M. SOFIA, Administrator of : Estate of Paul F. Sofia : : Plaintiff-appellee/ : cross-appellant : : JOURNAL ENTRY vs. : and : OPINION DAVID M. KOREN : : Defendant-appellant : : and : : ALVIN E. SCHMITT, III : : Defendant-appellee : DATE OF ANNOUNCEMENT OF DECISION : FEBRUARY 29, 1996 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Case No. 250,547 JUDGMENT : CASE NO. 68236 AFFIRMED IN : PART; REVERSED IN PART AND : REMANDED. : CASE NO. 68922 AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee/ JOHN C. MEROS cross-appellant: LISA S. FRIEDMAN Attorneys at Law 1370 Ontario Street, #1700 Cleveland, Ohio 44113 (Continued) APPEARANCES: (Cont.) For defendant-appellant T. CHARLES COOPER David M. Koren: Attorney at Law 1965 East Sixth Street, #500 Cleveland, Ohio 44114 For defendant-appellee KEITH THOMAS Alvin E. Schmitt, III: Attorney at Law 815 Superior Avenue, N.E. 21st Floor Cleveland, Ohio 44114-2701 TIMOTHY E. McMONAGLE, J.: These consolidated appeals arise from plaintiff Paul M. Sofia's wrongful death action against defendants David M. Koren, Alan Flanik, Alvin E. Schmitt, III and Raymond Koren. In Case No. 68236, defendant David M. Koren appeals from the lower court's directed verdict for plaintiff on the issues of the decedent's contributory negligence and assumption of the risk and also chal- lenges the court's jury instructions. Plaintiff cross-appeals from a directed verdict for defendant Alvin E. Schmitt, III. In Case No. 68922, plaintiff appeals from the judgment of the trial court which denied his motion for prejudgment interest. For the reasons set forth below, Case No. 68236 is affirmed in part and reversed in part, and Case No. 68922 is affirmed. On August 6, 1991, at approximately 11:00 p.m., a vehicle operated by defendant Flanik collided with a vehicle operated by defendant David Koren as Flanik attempted to make a left turn from S.O.M. Center Road to Larchmont Road in Mayfield Heights. Paul F. Sofia, a passenger in Flanik's vehicle, sustained injuries as the result of the collision and died the next day. Paul M. Sofia, the decedent's father and administrator of his estate, subsequently filed an action for wrongful death and a survival action for the decedent's personal injuries against Flanik, David Koren and Schmitt, the host of a party which David Koren had attended prior to the collision. - 4 - Sofia also filed a separate action against David Koren's father, Raymond Koren, for "negligent entrustment" and negligently furnishing alcohol to an underage person. The trial court subse- quently consolidated both actions on December 3, 1993. In his answer to plaintiff's amended complaint, David Koren denied liability and averred that the decedent voluntarily assumed a known risk and was contributorily negligent in connection with this matter. In addition, he filed cross-claims against Flanik and 1 Schmitt for indemnification and contribution. Alvin Schmitt and Raymond Koren also denied liability. Plaintiff settled with Flanik and dismissed him from the action on October 18, 1994, and the matter then proceeded to a jury trial on October 31, 1994. For his case, the plaintiff presented the testimony of High- way Patrol Officer Gary Montgomery, Alan Flanik, Jill Vincent, Robert Bandelow, Paul Sofia, Jack Holland, Kristie Rivituso, David Koren, Margaret Sofia and Officer Michael Kaplan. Officer Montgomery testified that he is an accident recon- structionist for the Ohio Highway Patrol and analyzed the colli- sion at issue in that capacity and not as an expert for either party. Officer Montgomery reviewed the accident report and photographs, measurements of the roadway, the weights of the vehicles, the weights of the occupants of the vehicles, the 1 At oral argument, counsel for David Koren noted that these claims were extinguished at the trial of this matter. - 5 - direction of approach, the angle of departure and photographs of the accident scene. He used these figures and a "coefficient of friction," or fraction which represents the slickness of the road surface, to compute the "conservation of linear momentum" and thus determine the speeds at which the vehicles were travelling. According to Officer Montgomery, using the crash data and a co- efficient of friction of .70, David Koren's vehicle was travelling between fifty-four and sixty miles per hour and Flanik's vehicle was travelling between fourteen and seventeen miles per hour. On cross-examination, Officer Montgomery acknowledged that he did not go to the scene and that he relied upon measurements made by the Mayfield Heights Police Department. Alan Flanik testified that on the night of the accident, he and the decedent had planned to watch the Cleveland Browns' first preseason game at the home of Flanik's brother. Flanik arrived at the Sofia home early in the evening and remained there for approx- imately two hours. Neither man consumed alcohol at this time. At approximately 8:00 p.m., they arrived at the home of Flanik's brother, where they each consumed one beer. The two left the brother's house at approximately 11:00 p.m. Flanik testified that he did not notice anything in his path as his vehicle began to turn left onto Larchmont. He then heard the decedent say his name as the collision occurred. The decedent was not breathing following the collision. Flanik performed CPR and attempted to free him from the car. As he - 6 - waited for help to arrive, he realized that he had been in a collision with a pickup truck. He then saw the man from the pickup put something in the back of that vehicle. Flanik testified that he was in a daze and was confused as emergency personnel attended to him at the scene and in the emer- gency room. On cross-examination, Flanik acknowledged that there were street lights in the area of the crash, that he did not stop his vehicle before making the turn onto Larchmont and that he did not see Koren's vehicle until the collision occurred. Jill Vincent, former girlfriend of David Koren, testified that on August 6, 1991, she and a friend had planned to go to a gathering at Schmitt's house. They arrived at approximately 7:00 p.m. By 7:30 p.m., Vincent and David Koren went to Raymond Koren's house. David spoke with his father in the kitchen for approximately twenty minutes, then took a twelve pack of beer from the refrigerator. Vincent was unable to recall whether David and his father had any conversation regarding the beer, but she stated that David did not appear intoxicated. David then placed the beer in the front seat of the truck, and the two returned to Schmitt's house. According to Vincent, Schmitt allowed the group to drink, and the refrigerator contained beer. By 10:30 p.m., Vincent had consumed four beers, but she did not observe David drinking and testified that he did not appear to be intoxicated. - 7 - Vincent further stated that at 10:30 p.m., she, David Koren and Kristie Rivituso decided to go to Burger King. Vincent carried an open container of beer into the pickup truck. The collision occurred suddenly as they proceeded to the restaurant. Afterward, she and Kristie were bleeding, and David exited the truck to speak with Flanik. On cross-examination, Vincent acknowledged that in a previously-signed statement, she had indicated that the lights of David Koren's truck were on at the time of the collision, that David had been travelling approximately thirty-seven miles per hour, that Flanik's vehicle sped up to make the turn and that, after the accident, she heard Flanik say to David, "Sorry, man, I'm a little f---ed up." Officer Bandelow testified that he conducted the follow-up investigation into the collision and that he observed the vehi- cles, took photographs, took measurements of the roadway and skid marks and noted the resting point of the vehicles after the colli- sion. In addition, he interviewed David Koren at the police station following the collision and detected the odor of alcohol. On cross-examination, Officer Bandelow stated that he observed a skid mark sixteen feet long in the area of the accident and determined that it was from the left front tire of David Koren's truck. He also stated that there was an "offset" in the mark where it changed direction, and he determined that this represented the - 8 - point of impact of the vehicles. He also acknowledged that David Koren spoke clearly and was cooperative following the collision. Plaintiff Paul M. Sofia testified that at the time of the collision, the decedent had worked full-time as a landscaper with Impulliti Landscaping. On the night of the collision, the dece- dent and Alan Flanik were at the Sofia home until shortly after 7:00 p.m. Approximately four hours later, Mr. Sofia learned that his son was involved in a serious accident. He went to the hospital and called Mrs. Sofia, who was in Colorado. Mr. and Mrs. Sofia also testified regarding the personal impact of the loss of their son. Traffic accident consultant Jack Holland testified that he was contacted by Steven LaTourette, then Prosecutor of Lake County who investigated the matter as a special prosecutor, to provide a speed estimate of the vehicles involved in the collision. He reviewed the Mayfield Heights police accident report, photographs of the vehicles and photographs of the scene, then calculated pre-impact speed according to the conservation of linear momentum. The calculation is derived from the weight of the vehicles, their paths before and after the collision, the point of impact, post-impact speeds, speed lost by skidding and the coefficient of friction of the roadway, which he determined to be .7. According to Holland, the speed of the Koren vehicle was sixty miles per hour, and the Flanik vehicle was travelling four-teen miles per hour. Given this speed of Koren's vehicle and a typical - 9 - reaction time of 1.6 seconds to perceive and respond to a hazard, David Koren could not have stopped in time to avoid the collision. Had Koren's vehicle been travelling within the posted speed limit, however, the collision would not have occurred since Koren would have been able to stop well in advance of the point of impact. On cross-examination, Holland acknowledged that the surface had been repaved following the accident, and this logically sup- ported the inference that the surface was somewhat travelled at the time of the collision. He maintained, however, that the photographs he had viewed indicated a granularity which accorded with a coefficient of friction of .7. He further admitted that he did not speak with any witnesses or review any witness statements and, according to an article which Holland had written, statements "add to the information from all sources." In addition, Holland admitted that it took Flanik's vehicle 1.4 seconds to turn from the straight south position to the point of impact and that it was "very likely" that Flanik had cut the turn short, which possibly decreased the time within which Koren could have perceived the hazard. Kristie Rivituso testified that on August 6, 1991, she attended the gathering at Schmitt's house. She reportedly asked David Koren if she could have some of the beer in the refrigerator and he said, "Yes." She then observed David Koren open and start to drink one can of beer. At approximately 11:00 p.m., she, David and Jill Vincent left in David's truck to go to Burger King. - 10 - Rivituso was unable to recall many of the details of the colli- sion, but she stated that Vincent had an open can of beer. On cross-examination, she acknowledged that she had previously testified that David did not appear intoxicated when she entered the truck. David Koren testified as if on cross-examination that at approximately 6:30 p.m. on August 6, 1991, he consumed four cans of beer at his home. There was no testimony, however, regarding Schmitt's knowledge of this consumption. Koren then drove a pickup truck, owned by his father, to a softball game and then to Schmitt's house. At approximately 8:30 p.m., he briefly returned home, spoke with his father and removed a twelve-pack of beer from the refrigerator before returning to the gathering in his father's pickup truck. Officer Michael Kaplan testified that David Koren approached him as he responded to the crash scene and told him that passen- gers in his vehicle were hurt. Officer Kaplan later asked Koren whether he had been drinking, and David stated that he had less than one beer. Officer Kaplan then requested that David perform a multifaceted field sobriety test. David passed some of the tests and failed others, so Officer Kaplan determined that he had to be tested for alcohol consumption at the police station. Later, David admitted to consuming three or four beers. On cross-examination, Officer Kaplan was unsure whether David had struck his head in the collision, and he admitted that David - 11 - was emotionally agitated. Officer Kaplan also admitted that David's speech was good and that he prepared a detailed statement at the police station within a couple of hours after the colli- sion. Following the close of plaintiff's case, the court directed a verdict for defendant Raymond Koren on the claim of negligent entrustment and directed a verdict for defendant Schmitt. David and Raymond Koren presented the testimony of Richard Vojticek, who testified that he was at Schmitt's house and neither saw David Koren consume alcohol nor observed him to be alcohol- impaired. He further stated that he arrived at the accident scene as the police were arriving, and David was shaken and upset because Flanik's car had pulled in front of him, but he did not appear under the influence of alcohol. Alvin Schmitt testified that on the night of the accident, he was with David Koren off and on for a period of three hours. He did not see David drink any alcohol and did not observe him to be under the influence of alcohol. On cross-examination, Schmitt admitted to consuming five or six beers at the gathering and being "under the influence for a little bit." In addition, he admitted he had smoked marijuana that evening. Lisa Nista and Katie Nista testified that they were at the gathering for one hour and one-half hour, respectively, and that - 12 - David Koren did not consume alcohol in their presence and did not appear to be under the influence of alcohol. Officer Gregory Michael testified that he interviewed Alan Flanik in the hospital shortly after the collision. At that time, Officer Michael smelled a strong odor of alcohol on Flanik's breath and noticed that his speech was slurred. Officer Michael opined that Flanik was extremely intoxicated and would not have been fit to drive a car at 11:00 p.m. On cross-examination, Officer Michael acknowledged that Flanik had a blood alcohol level of .05 percent, or less than the level of legal intoxication. David Uhrich, Emeritus Professor of Physics at Kent State University, testified that he had worked in the area of accident reconstruction since the mid-1970's and had analyzed over two thousand accidents. Uhrich reviewed the accident reports, police photographs of the vehicles and accident scene, statements of David Koren and Jill Vincent, depositions of Alan Flanik, David Koren and Jack Holland, and the patrol accident analysis. He also obtained data regarding the vehicles, the coefficient of friction and perception reaction time. Uhrich then utilized the data in accordance with the conservation of linear momentum and determined that Flanik's vehicle was travelling between fifteen and eighteen miles per hour and David Koren's vehicle was travelling between forty-six and fifty-two miles per hour, or at least six miles per hour over the posted speed limit. He also determined that, given - 13 - the speeds of the vehicles and normal perception reaction times, David Koren had only from 1.2 to 1.4 seconds to evade Flanik's car. Further, even if Koren had been travelling at the posted speed, or even as slowly as twenty-five miles per hour, the hazard nonetheless was presented too suddenly for him to have avoided the accident. On cross-examination, Uhrich admitted that he is self-taught in the area of accident reconstruction. He further stated that he had used a lower coefficient of friction than Jack Holland had used. He also stated that if David Koren were travelling within the posted speed, his vehicle would have struck Flanik's car closer to the rear of the vehicle, rather than at the point occu-pied by the front seat passenger. David Koren testified that between 4:00 and 6:00 p.m., he purchased a twelve-pack of beer. He then drank three cans of beer as he got ready to go to Schmitt's house. By 8:15 p.m., he con- sumed an additional one-half can of beer at Schmitt's house before returning to his home with Jill Vincent. He had a brief conversa- tion with his father, and his father asked or instructed that he not drink and drive. He then left the house with the beer he had purchased when his father received a telephone call. He then remained at Schmitt's house for approximately two hours. Later, at around 11:00 p.m., he, Jill Vincent and Kristie Rivituso left for Burger King and had a collision with Flanik. Koren stated that he thought he was travelling between thirty-five - 14 - and forty miles per hour. Koren further testified that he first noticed Flanik's car after it had crossed the center line. He applied the brakes as hard as he could but realized that there was no way he could avoid hitting it. He then recalled seeing that his passengers were hurt and placing the open can of beer into the back of the truck. Koren got out of the vehicle and asked Flanik why he had turned. Flanik reportedly said, "Sorry, man, I'm f---ed up." Koren returned to his pickup truck and heard Rivituso crying for help. He panicked and ran to a nearby police car. On cross-examination, Koren admitted that he did not know what Flanik meant and that he asked if anyone knew CPR. Koren also stated that Schmitt did not serve him any beer at the gathering, and he was unsure whether the one-half beer which he drank there was part of the twelve-pack which he had brought to the gathering. With regard to the beer which he had consumed earlier in the evening, Koren acknowledged that this was against his father's wishes and that he probably concealed the empty cans from him. (Tr. 427). Raymond Koren testified that on the day of the collision, he had been visiting his wife, who was a patient at University Hospital. He arrived home at around 8:30 p.m. and changed his clothes to go to sleep. Later, he heard David arrive home with Jill Vincent. Mr. Koren stated that he stood in the doorway and had a brief conversation with David, who was in the kitchen. He - 15 - then noticed that David had a bag, and he said, "You're not drink- ing and driving are you?" David said that he was not. The tele- phone then rang, and David and Jill then left the house. Accord- ing to Mr. Koren, David did not appear to be under the influence of alcohol and exhibited no signs of having consumed alcohol. Finally, Mr. Koren stated that he did not furnish alcohol to David and that he did not allow David to consume alcohol and never saw him consume alcohol. On cross-examination, Mr. Koren admitted that he did not take the beer from David and did not forbid him from driving. The trial court subsequently submitted the matter to the jury. The jury concluded that David Koren was negligent in con-nection with this matter and that his negligence was the proximate cause of the decedent's death, and it awarded plaintiff a total of $506,149.00. The jury further determined that Raymond Koren did not negligently furnish alcohol to David. I. CASE NO. 68236 A. Appeal of Defendant David M. Koren 1. Defendant-appellant Koren's first and second assignments of error are interrelated and state: THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANT APPELLANT WHEN IT FAILED TO INSTRUCT - 16 - THE JURY ON THE LAW OF SUPERSEDING CAUSE DESPITE HIS SPECIFIC REQUEST FOR SUCH AN INSTRUCTION. THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-APPELLANT WHEN IT RESPONDED TO THE JURY'S REQUEST FOR A CLARIFICATION OF ITS EARLIER INSTRUCTION ON PROXIMATE CAUSE BY REFUSING TO INSTRUCT THE JURY ON THE LAW OF SUPERSEDING CAUSE DESPITE DEFENDANT- APPELLANT'S SPECIFIC REQUEST FOR SUCH AN IN- STRUCTION. Within the first assignment of error, defendant-appellant complains that the trial court erred in failing to give the jury a plain, distinct and unambiguous instruction regarding superseding causation. In the second assignment of error, he complains that the trial court erred in failing to instruct the jury on superseding causation upon the jury's request, during delibera- tions, that the court redefine proximate cause. As an initial matter, we note that a jury charge must be considered as a whole, and a reviewing court must determine whe- ther the jury charge probably misled the jury in a matter materi- ally affecting the complaining party's substantial rights. Becker v. Lake County Memorial Hospital West (1990), 53 Ohio St.3d 202, 208. Therefore, we must look to the entire charge to determine whether it was misleading. With regard to a jury instruction regarding intervening and superseding causation, the Ohio Supreme Court has stated that: [T]he issue of intervening causation generally presents factual issues to be decided by the trier of fact. Merchants Mut. Ins. Co. v. Baker (1984), 15 Ohio St.3d 316, 318, 15 OBR 444, 446, 473 N.E.2d 827, 828-829; Cascone v. - 17 - Herb Kay Co. (1983), 6 Ohio St.3d 155, 160, 6 OBR 209, 214, 451 N.E.2d 815, 820; ***. The determination of intervening causation "involves a weighing of the evidence, and an application of the appropriate law to such facts, a function formally to be carried out by the trier of the facts." Cascone, supra, 6 Ohio St.3d at 160, 6 OBR at 214, 451 N.E.2d at 820. In Cascone we established the test to be used to determine whether the intervening act was foreseeable and therefore a consequence of the original negligent act or whether the intervening act operates to absolve the original actor. "The test *** is whether the original and successive acts may be joined together as a whole, linking each of the actors as to the liability, or whether there is a new and independent act or cause which intervenes and thereby absolves the original negligent actor." Id. at 160, 6 OBR at 214, 451 N.E.2d at 819 (citing Mudrich, supra, and Mouse v. Cent. Sav. & Trust Co. [1929], 120 Ohio St. 599, 167 N.E. 868). In R.H. Macy [& Co., Inc. v. Otis Elevator Co. (1990), 51 Ohio St.3d 108] we approved of the use of a jury instruction on superseding causation which stated in part: "The causal connection of the first act of negligence is broken and superseded by the second, only if the intervening negligent act is both new and independent. The term 'independent' means the absence of any connection or relationship of cause and effect between the original and subsequent act of negligence. The term 'new' means that the second act of negligence could not reasonably have been foreseen." (Empha- sis. [sic]) Id., 51 Ohio St.3d at 111, 554 N.E.2d at 1317, quoting 1 Ohio Jury Instruc- tions (1983), Section 11.30. Thus, the key determination "'[w]hether an intervening act breaks the causal connection between negli- gence and injury depends upon whether that intervening cause was reasonably foreseeable by the one who was guilty of the negligence.'" (Emphasis deleted.) R.H. Macy, supra, at 110, 554 N.E.2d at 1316, quoting Mudrich, supra, 153 Ohio St. at 39, 41 O.O. at 121, 90 N.E.2d at 863. - 18 - Leibreich v. A.J. Refrigeration Inc. (1993), 67 Ohio St.3d 266, 269-270. In this instance, the trial court instructed the jury as follows: [Proximate cause] [1. SEPARATE ISSUE.] One who seeks to re- cover for damages must prove not only that the other party was negligence, but also that such negligence was a proximate cause of the injury, in this case death. [2. DEFINED]. Proximate cause is an act or failure to act, which in the natural and con- tinuous sequence directly produces the death, without which it would not have occurred. Proximate cause occurs when a death is the natural and foreseeable result of the act or failure to act. [3. SEVERAL CAUSES]. There may be more than one proximate cause. When the negligent act or failure to act of one party combines with the negligent act of another to produce the death, negligence of each is a cause. It is not necessary that the negligence of each occur at the same time, nor that there be a common purpose or action. [Remote cause or condition] *** A person is not responsible for the injury or death of another if his negligence is a remote cause and not a proximate cause. A cause is remote when the result could not have been reasonably foreseen or anticipated as being the natural or probable cause of an injury or death. [Intervening cause.] Where two or more inde- pendent, negligent acts combined [sic] or produce a single harmful result, and where each of these is a substantial factor in producing that result, the actors are jointly responsible unless the negligence of one or more actors broke the causal connection of the other actors - 19 - and, thus, relieves him of legal responsibility for the harmful result. (Tr. 546-548). As set forth above, the court gave the jury the standard instructions regarding proximate cause as an element of the plain- tiff's cause of action, the definition of proximate cause, several causes, remote cause or condition and intervening causation. See O.J.I. Sections 11.10-11.30(2). The court did omit a further instruction on superseding causation. Considering the charge as a whole, however, we are unable to conclude that it probably mis-led the jury to the material detriment of the defendant. The court's charge clearly apprised the jury that it had to determine: (1) the direct and proximate cause of the injury; (2) whether the negligence of one party combined with the negligence of another to produce more than one proximate cause of the injury; and (3) whe- ther each cause was not reasonably foreseeable and therefore a remote cause of the injury. Moreover, the court's instructions regarding remote cause or condition and intervening causation clearly apprised the jury concept of superseding causation. In accordance with the foregoing, defendant's first assign- ment of error is overruled. Moreover, since we have found no error in the court's origi- nal instruction, we do not find that the trial court abused its discretion in re-reading the instruction in response to the jury question. Cf. Miller v. Marrocco (1989), 63 Ohio App.3d 293, 298 (trial court did not abuse its discretion in limiting its reread- - 20 - ing of jury instructions to those necessary to answer jury's questions). Defendant's second assignment of error is overruled. 2. Defendant-appellant's third assignment of error states: THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-APPELLANT WHEN IT GRANTED PLAINTIFF- APPELLEE'S MOTION FOR A DIRECTED VERDICT ON THE ISSUE OF PLAINTIFF'S DECEDENT'S CONTRIBUTORY NEGLIGENCE AND ASSUMPTION OF THE RISK. Within this assignment of error, appellant Koren maintains that the jury should have been permitted to determine whether the decedent was contributorily negligent and assumed the risk since he accepted a ride from Flanik and there was evidence that Flanik was intoxicated. With regard to procedure, we note that Civ.R. 50(A) governs motions for directed verdict and provides in relevant part as follows: (4) When granted on the evidence. When a motion for a directed verdict has been prop- erly made, and 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 upon the evidence submitted and that conclusion is adverse to such party, the court shall sustain the motion and direct a verdict for the moving party as to that issue. See, also, The Limited Stores v. Pan American World Airways, Inc. (1992), 65 Ohio St.3d 66, 73. - 21 - We further note that Ohio is a comparative negligence juris- diction, and implied assumption of the risk and comparative negli- gence are no longer bars to recovery. Harrell v. Crystal (1992), 81 Ohio App.3d 515, 528. Therefore, the jury is instructed to evaluate the negligence of both parties, if applicable, and assign fault accordingly. Id. "Contributory negligence" means "any want of ordinary care on the part of the person injured, which combined and concurred with the defendant's negligence and contributed to the injury as a proximate cause thereof and as an element without which the injury would not have occurred. Joyce-Couch v. DeSilva (1991), 77 Ohio App.3d 278, 290. "Implied assumption of the risk" has been de- fined as "`*** (1) consent or acquiescence in (2) an appreciated or known (3) risk *** The practicalities of proof require that the defense of assumption of the risk also be applicable where the risk is so obvious that plaintiff must have known and appreciated it.'" Anderson v. Ceccardi (1983), 6 Ohio St.3d 110, 112, quoting Benjamin v. Deffet Rentals (1981), 66 Ohio St.2d 86, 89. In the circumstances of this matter, there was no evidence which demonstrates that the decedent failed to use ordinary care or that he consented or acquiesced in an appreciated or known risk in connection with his acceptance of a ride from Flanik. No evi- dence was presented regarding Flanik's behavior earlier in the evening or whether Flanik demonstrated any manifestation of being under the influence prior to the collision, and no evidence was - 22 - presented regarding the circumstances surrounding the decedent's decision to accept a ride with him. Moreover, the record dis- closes that Flanik's blood alcohol level was .05, or well under the legal limit for intoxication. Under this combination of circumstances, there was no evidence upon which the trial court could have determined that the decedent knew Flanik was intoxi- cated or impaired, and it therefore correctly refused to submit the issues of contributory negligence and implied assumption of the risk to the jury. Accord Castricone v. Barcalow (June 7, 1990), Belmont App. No. 87-B-35, unreported. Appellant maintains that jury questions were presented as to whether the decedent impliedly assumed the risk and was compara- tively negligent in accordance with Burke v. Cremeens (1961), 114 Ohio App. 313 and Dubecky v. Horvitz Co. (1990), 64 Ohio App.3d 726. We find these cases distinguishable from the instant matter, however. In Burke, supra, the court noted that the plaintiff was with the driver during the time he was observed by others to be intoxicated, and the plaintiff admitted that the driver was weaving and had swerved prior to the collision at issue therein. Similarly, in Dubecky, supra, the plaintiff was alerted to the fact that the driver was not fully in control of her faculties when she let go of the steering wheel to turn around to talk to the back seat passengers prior to the collision at issue therein. Accordingly, these cases are not analogous to this matter. Appellant's third assignment of error is overruled. - 23 - B. Cross-Appeal of Plaintiff Paul M. Sofia THE TRIAL COURT ERRED TO THE SUBSTANTIAL PRE- JUDICE OF THE CROSS-APPELLANT BY DIRECTING A VERDICT IN FAVOR OF DEFENDANT ALVIN E. SCHMITT, III. As set forth previously, in order to grant a motion for a directed verdict, a trial court must construe the evidence most strongly in favor of the party against whom the motion is directed and determine that upon any determinative issue, reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such party. The Limited Stores v. Pan American World Airways, Inc., supra. In tort law, the determinative issues are the existence of a duty, a breach of that duty and injury resulting proximately therefrom. DiGildo v. Caponi (1969), 18 Ohio St.2d 125, 127. Plaintiff-appellant maintains that Schmitt's duty is defined by Mayfield Heights Codified Ordinance Section 511.09(b) and R.C. 4301.69(B). Section 511.09(b) provides as follows: No person, being the owner or occupant of any premises located within the City, shall know- ingly allow any person under the age of twenty- one years to remain on such premises while in the possession of beer or intoxicating liquor or while consuming beer or intoxicating liquor in violation of any of the provisions of this chapter. R.C. 4301.69(B) provides as follows: - 24 - No person who is the owner or occupant of any public or private place shall knowingly allow any underage person to remain in or on the place while possessing or consuming beer or intoxicating liquor, unless the intoxicating liquor or beer is given to the person pos- sessing or consuming it by that person's parent, spouse who is not an underage person, or legal guardian and the parent, spouse who is not an underage person, or legal guardian is present at the time of the person's possession or consumption of the beer or intoxicating liquor. Pursuant to R.C. 2901.22, (B) A person acts knowingly, regardless of his purpose, when he is aware that his conduct will probably cause a certain result or is likely to be of a certain nature. A person has knowledge of such circumstances when he is aware that such circumstances probably exist. In determining whether a defendant has breached the duty established by this statute, the court must consider whether the defendant furnished alcohol to the minor tortfeasor or whether the defendant "knowingly" allowed the minor tortfeasor to stay on the property while possessing or consuming beer. North v. Monroe (June 2, 1995), Clark App. No. 93-CV-0439, unreported. To recap plaintiff's evidence going to this issue, it was established that Koren and the others were invited to Schmitt's home. Jill Vincent testified that Schmitt allowed the group to drink and that the refrigerator contained beer, but she did not observe Koren drinking. Kristie Rivituso testified that she asked Koren for beer from the refrigerator and that she saw him open and start to drink one can of beer. Koren testified that he drank beer - 25 - at Schmitt's house earlier in the evening, but he provided no testimony regarding Schmitt's awareness of this consumption. Construing this evidence most strongly in favor of the party against whom the motion is directed and considering whether upon any determinative issue, reasonable minds could only render a decision adverse to such party, we find that the trial court erred in directing a verdict for Schmitt. Although there was no testi- mony regarding Schmitt's specific awareness of Koren's alcohol consumption, it was established that Schmitt invited Koren and the others to the gathering and, according to Vincent, allowed the group to drink and that Koren consumed alcohol there. Plaintiff-appellant's assignment of error claimed in his cross-appeal that the trial court erred by directing a verdict in favor of defendant Alvin E. Schmitt III is well taken. Based upon the foregoing, this matter is hereby remanded for trial on the issue of whether Schmitt's acts constituted negligence and, if so, whether they were a proximate cause of the death of Paul F. Sofia. II. CASE NO. 68922 A. Appeal of Plaintiff/Cross-Appellant THE TRIAL COURT ERRED TO THE SUBSTANTIAL PRE- JUDICE OF PLAINTIFF-APPELLANT IN DENYING PLAINTIFF'S MOTION FOR PREJUDGMENT INTEREST. Within this appeal, cross-appellant asserts that the trial court erred in denying his motion for prejudgment interest because - 26 - defendant David Koren and his insurer, Prudential Insurance Co., did not make a good faith effort to settle the case. Pursuant to R.C. 1343.03(C): Interest on a judgment, decree, or order for the payment of money rendered in a civil action based on tortious conduct and not settled by agreement of the parties, shall be computed from the date the cause of action accrued to the date on which the money is paid, if, upon motion of any party to the action, the court determines at a hearing held subsequent to the verdict or decision in the action that the party required to pay the money failed to make a good faith effort to settle the case and that the party to whom the money is to be paid did not fail to make a good faith effort to settle the case. Whether a party's efforts are in good faith is a determina- tion resting within the sound discretion of the trial court. Worrell v. Multipress, Inc. (1989), 45 Ohio St.3d 241, 250. Factors demonstrating good faith include: an affirmative effort to gather relevant data; an affirmative effort to evaluate that party's litigation risks and prospects reasonably; and an affirmative effort to propose settlement consistent with the reasonable valuation. Black v. Bell (1984), 20 Ohio App.3d 84, 88. In this instance, the testimony from the hearing on plain- tiff's motion for prejudgment interest demonstrates that counsel for plaintiff admitted that in March of 1993, he told a represen- tative of Prudential that he would not entertain any settlement offers until he had completed his investigation; by October 1993, he stated that he would not accept the policy limits even if they - 27 - were offered; by March 1994, he demanded the full policy limits of both David and Raymond Koren plus a contribution from those defen- dants; and not until October 13, 1994, or approximately two weeks before trial, did he make a demand of less than the policy limits. For its part, Prudential determined that Flanik had proximately caused the accident, and it offered plaintiff $100,000, then $110,000.00. Prudential then increased its offer to $200,000, following plaintiff's settlement with Flanik. Prudential also offered $5,000, then $15,000, to settle the claim against Raymond Koren. The foregoing demonstrates to us that plaintiff approached the settlement negotiations with a degree of rigidity until short- ly before trial, and Prudential's failure to meet his demands must be viewed with that in mind. Moreover, Prudential demonstrated a rational basis for its counter-offer. Accordingly, there was evidence that Prudential responded in good faith to plaintiff's demands and made good faith settlement offers. The trial court, therefore, did not abuse its discretion in determining that defen- dant had not failed to make a good faith effort to settle. Case No. 68236 is affirmed upon defendant's appeal and re- versed and remanded upon plaintiff's cross-appeal. Case No. 68922 is affirmed. - 28 - It is ordered that plaintiff-appellee Sofia shall recover his costs herein taxed for the appeal of defendant-appellant Koren. Plaintiff/cross-appellant Sofia shall recover his costs herein taxed for the appeal against defendant-appellee Schmitt, III. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Cuyahoga County Court of Common Pleas 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. JOSEPH J. NAHRA, P.J. and DIANE KARPINSKI, J. CONCUR JUDGE TIMOTHY E. McMONAGLE 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, .