COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70978 VIRGINIA SCHLUNDT : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION BEATRICE WANK : : Defendant-appellant : : DATE OF ANNOUNCEMENT : OF DECISION : APRIL 17, 1997 CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. 274194 JUDGMENT : Reversed. DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: William D. Beyer, Esq. Laurel E. Letts, Esq. 1340 Sumner Court 323 Lakeside Avenue, West Cleveland, Ohio 44115 Lakeside Place, Suite 410 Cleveland, Ohio 44113 -2- ROCCO, J.: In this personal injury action, defendant-appellant Beatrice Wank appeals from the trial court order which granted plaintiff- appellee Virginia Schlundt's motion for a new trial following a jury verdict in appellant's favor. Appellant argues there was substantial, competent, credible evidence to support the jury's verdict and contends the verdict was not contrary to law. This court agrees with appellant, finds the trial court abused its discretion, and reinstates the jury's verdict. Appellant and appellee were involved in an automobile accident which occurred in the early evening of August 24, 1990. Both were waiting at a traffic light; appellant, in her Nissan Pulsar, was behind appellee's Ford LTD. The record clearly establishes that appellant did not have her full attention on her driving because her cat was on the front seat of her car. Thus, although appellant noticed the light turn green, she also was distracted by her pet, so she drove forward before any of the cars in front of her had 1 proceeded on their way. As a result, appellant's car "bumped" into appellee's which in turn was "pushed" into the car ahead. All of the drivers involved in the accident exited their cars. Appellant, distraught by her culpability for the occurrence, quickly inquired as to appellee's physical condition. Appellee was "shaken" and "in a state of shock" due to the accident but assured appellant she was "fine." Since no one seemed to be injured, the 1 Quoted material indicates testimony given by a witness at trial. -3- drivers then proceeded to the nearest police station to make a report of the incident. That evening, although appellee was experiencing pain "in the neck, in the shoulder, in the arm area," when appellant telephoned her "to make sure she was okay," appellee again stated, "I'm fine." Eleven days later, on September 4, 1990, appellee went to her regular physician, Dr. Carl A. Culley, Jr. Appellee told Dr. Culley she had been in an automobile accident and although she had "no immediate symptoms" afterwards, she was now experiencing "very mild" pain "in her right shoulder" and a "tingling" sensation in her right arm. After examining appellee, Dr. Culley's initial diagnosis was that appellee was suffering from both shoulder and cervical strain and from bursitis. He prescribed moist heat and an anti- inflammatory medication. Appellee returned to Dr. Culley two weeks later, complaining of "increasing symptoms." Dr. Culley ordered a set of x-rays to be taken of appellee's spine and shoulder areas. On October 23, 1990 Dr. Culley saw appellee again. She stated her neck symptoms had "improved." At that time, Dr. Culley told appellee that in his opinion, the x-ray indicated both that there was some "disk narrowing" in the neck area of her spine "with possible impingement of the nerve" and that there was some calcification in one of the ligaments in her shoulder joint. He gave her an instruction sheet of exercises she could perform for -4- her neck and shoulder and recommended she continue with the heat treatments and anti-inflammatory medication. Nearly two years later, on July 16, 1992, appellee returned to Dr. Culley, stating that she "had continued to have discomfort in her right shoulder" and occasionally "numbness in the arm" since her previous visit. At that time, Dr. Culley referred appellee to a neurologist, Dr. Arthur Dick. Dr. Dick examined appellee approximately a month later, on August 13, 1992. She complained to him of pain in her right shoulder and radiating pain down her arm. Dr. Dick performed a nerve conduction study and an electromyography on appellee. Thereafter, Dr. Dick concluded that appellee was suffering from a "muscular skeletal problem" in her shoulder, and from cervical 2 arthritis and cervical radiculopathy. Dr. Dick in turn referred appellee to a Dr. Smith for her musculoskeletal complaints. Neither Dr. Culley nor Dr. Dick believed appellee's problems required any surgical intervention. 3 On August 20, 1992 appellee filed suit against appellant claiming the 1990 automobile accident was the proximate cause of the injuries to her neck and shoulder area. By the time the case proceeded to jury trial on November 2, 1995, appellant admitted the 2 In his testimony, Dr. Dick described cervical radiculopathy as "pinched nerves" in the neck area of the spinal column which supplies sensation to the upper arm and shoulder. 3 The record reflects appellant voluntarily dismissed the case in July 1994 but, almost immediately, refiled it in accordance with R.C. 2305.19. -5- automobile accident was the result of her negligence, however, she denied liability for appellee's injuries. The issue for the jury to resolve, therefore, was only that of proximate cause. Appellee testified in her own behalf and presented the videotaped testimony of her treating physicians. After she rested 4 her case, appellant testified and presented the videotped testimony of Dr. Ralph Kovach, an orthopedist who, after the suit was filed, had examined appellee twice. On November 9, 1995, the jury returned a verdict for appellant. On November 15, 1995, appellee filed a motion for a judgment notwithstanding the verdict or a new trial, contending the jury's verdict was against the manifest weight of the evidence. Appellant filed a brief in opposition to appellee's motion on November 27, 1995. Seven months later, on June 27, 1996, the trial court issued the following half-sheet journal entry which is set forth verbatim: Plaintiff's motion for (JNOVO) is Overruled: in the Courts sound discretion for good cause shown, Plaintiff's Motion for a New Trial is Granted by Civ. R. 59(A)(6) in that the judgment is not sustained by the weight of the evidence and the judgment is contrary to the law on Civ. R. 50(A)(7). Appellant subsequently filed a timely notice of appeal of the trial court's judgment; she presents a single assignment of error for this court's review. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN GRANTING THE PLAINTIFF/APPELLEE'S MOTION FOR NEW TRIAL BASED UPON CIVIL RULE 59(A)(6) AND (A)(7). 4 The record reflects neither party moved for a Civ.R. 50(A) directed verdict at the close of appellee's case. -6- Appellant argues there was substantial, competent, credible evidence to support the jury's verdict in this action, therefore, the trial court abused its discretion in granting appellee's motion for a new trial. She further asserts that since her admission of negligence did not absolve appellee of the burden to prove appellant's negligence was the proximate cause of her injuries, the verdict was not contrary to law. This court finds appellant's arguments to be persuasive. The trial court granted appellee's motion for a new trial pursuant to Civ.R. 59(A), which states in pertinent part as follows: RULE 59. New trials (A) Grounds. A new trial may be granted to all or any of the parties and on all or part of the issues upon and of the following grounds: * * * (6) The judgment is not sustained by the weight of the evidence; however, only one new trial may be granted on the weight of the evidence in the same case; (7) The judgment is contrary to law; * * * In addition to the above grounds, a new trial may also be granted in the sound discretion of the court for good cause shown. When a new trial is granted, the court shall specify in writing the grounds upon which such new trial is granted. *** (Emphasis added.) Where it is contended that the verdict is not sustained by the weight of the evidence, the standard which governs appellate review of a decision to grant a motion for a new trial is whether the trial court abused its discretion. Antal v. Olde Worlde Products, -7- Inc. (1984), 9 Ohio St.3d 144, 145; Jenkins v. Kreiger (1981), 67 Ohio St.2d 314; Rohde v. Farmer (1970), 23 Ohio St.2d 82; Krejci v. Halak (1986), 34 Ohio App.3d 1; Winson v. Fauth (1989), 63 Ohio App.3d 738. The term "abuse of discretion" connotes more than an error of law or judgment; it implies the trial court's attitude is unreasonable, arbitrary or unconscionable. Krejci v. Halak, supra. Ordinarily, the trial court's decision to grant a new trial based upon the manifest weight of the evidence is given considerable deference. [T]he generally accepted rule is that a reviewing court should view the evidence favorably to the trial court's action rather than to the jury's verdict. The predicate for the rule springs, in part, from the principle that the discretion of the trial judge in granting a new trial may be supported by his having determined from the surrounding circumstances and atmosphere of the trial that the jury's verdict resulted in manifest injustice. Jenkins v. Kreiger, supra at 320. (Emphasis added.) The rationale behind this approach is the recognition that the exercise of the trial court's discretion may require an evaluation of witness credibility which is not apparent from the transcript. Sanders v. Mt. Sinai Hospital (1985), 21 Ohio App.3d 249 at 253. However, as this court stated in Gedetsis v. Anthony Allega Cement Contractors, Inc. (Sept. 23, 1993), Cuyahoga App. No. 64954, unreported: The jury system has its roots in our Constitutions, both federal and state, and is fundamental to our democratic form of government, therefore, a jury verdict cannot be set aside lightly by conclusory statements of the trial judge not grounded in the evidence. It is -8- axiomatic that the trial court cannot simply substitute its opinion for that of a jury. Thus, the trial court's discretionary action in granting a new trial must be supported by competent, credible evidence in order for a reviewing court to affirm that decision. Id.; see, also, Verbon v. Pennese (1982), 7 Ohio App.3d 182, headnote 1; Katzive v. Litton Industries, Inc. (Feb. 19, 1981), Cuyahoga App. No. 42607, unreported. In this case, the trial court stated only cursory grounds for its decision to grant appellees' motion for a new trial. It is well settled that such an action, on its face, constitutes reversible error. Were a trial court to be permitted the freedom to disregard a jury's verdict by simply invoking the apothegm that the verdict "is not sustained by the weight of the evidence," the jury trial itself could become a futile prelude. Furthermore, without some articulated basis for granting a new trial, the trial court's decision is virtually insulated from meaningful appellate review. *** Given the recognized importance of the trial court's input when reviewing whether a verdict is supported by the evidence [Footnote omitted], we feel it is all the more crucial to require that the trial court so state the basis for its decision. * * * The record of the case at bar reveals that the trial court articulated no reasons whatsoever, other than stating generally that the jury's verdict was not "sustained by the weight of the evidence." *** [S]uch reasons will be deemed insufficient if simply couched in the form of conclusions or statements of ultimate fact. [Citation omitted.] Consequently, we hold, when granting a motion for a new trial based on the contention that the verdict is not sustained by the weight of the evidence, the trial court must articulate the reasons for so doing in order to -9- allow a reviewing court to determine whether the trial court abused its discretion in ordering a new trial. Accordingly, the judgment *** is reversed ***. Antal v. Olde Worlde Products, Inc., supra at 145, 146. (Emphasis added.) See, also, Winson v. Fauth, supra; Jiminez v. Ramos (1985), 25 Ohio App.3d 58; Allis-Chalmers Credit Corp. v. Majestic Steel Serv., Inc. (1984), 14 Ohio App.3d 325. A review of the record indicates, moreover, the trial court substituted its judgment for that of the jury in determining the verdict was against the weight of the evidence. Verbon v. Pennese, supra. The issues of fact which existed in this case were for the jury to determine based upon the evidence adduced. During her testimony, appellee admitted the following facts: (1) When the accident occurred, she did not remember hitting or bumping any part of her body against anything inside her car; (2) she could not remember when the pain started; (3) she did not seek treatment for the pain until eleven days had passed; (4) at her first visit with Dr. Culley after the accident, she stated her symptoms were "very mild" and at the third visit, that they had improved; (5) when she finished the anti-inflammatory medication Dr. Culley prescribed, she did not try to obtain more because the aspirin she was taking for the pain was "working;" (6) she sought no further treatment for two years, returning to Dr. Culley only after speaking with an attorney; (7) in that time period, she told no one about the pain she said she was experiencing; and (8) she -10- had experienced very similar symptoms during episodes which occurred in 1980 and 1983. With regard to Dr. Culley, the following evidence was adduced: (1) appellee's medical notes indicated she had complained of neck and shoulder pain in 1980 and 1983; (2) at her first visit after the accident, she said she experienced "no immediate symptoms" of pain; (3) prior to stating so with more certainty, he testified that in his medical opinion, although appellee's neck and shoulder "conditions" pre-existed the accident, the accident "could" have caused her non-symptomatic condition to become symptomatic; and (4) he stated that appellee also had some chronic exacerbation of her symptoms from her regular job activities. In Dr. Dick's opinion, although appellee's arm pain was most likely due to nerve impingement which by the time of trial he attributed only to the accident, the process of cervical arthritis, which the x-rays revealed was narrowing the space between the vertebrae in appellee's neck, would also eventually impinge on the nerves. Appellant's expert, Dr. Kovach, testified that during his examination of appellee, the pain and numbness she stated she suffered from was inconsistent with both the objective tests he performed and his own medical experience with various orthopedic problems. Dr. Kovach also reviewed appellee's medical records from 1980 and 1983 and found her complaints to be remarkably similar to the symptoms she stated she was currently experiencing. In his opinion, appellee sprained her neck in the accident; however, she -11- did not sustain any permanent injury; moreover, he opined that all of appellee's "on-going problems" were pre-existing conditions which were completely unrelated to the accident. This court is mindful that it is required to review the evidence favorably to the trial court's action rather than to the original jury verdict. However, in this case, certain factors compel the conclusion the trial court's action was an abuse of discretion. First, as the foregoing recitation indicates, the evidence in this case was conflicting; there was "substantial disagreement between the parties over the nature and extent of [appellee's] injuries, or whether, in fact, there were any" from the accident itself. Johnson v. Knebusch (Jan. 7, 1984), Cuyahoga App. No. 47543, unreported. Significantly, some of this evidence was videotaped. This court has therefore had the opportunity to observe some witnesses as the jury did. The record in this case is thus not as "cold" as it would ordinarily be, and a thorough review of it clearly demonstrates the trial court's cursory decision lacks foundation. Verbon v. Pennese, supra; Cf., Isquick v. Classic Autoworks, Inc. (1993), 89 Ohio App.3d 767; Sanders v. Mt. Sinai Hospital, supra. Furthermore, the jury's verdict was not contrary to law. Only if the jury determined that the accident itself was more likely than not the proximate cause of appellee's current injuries could it state that appellant was liable to appellee. See, eg., Johnson v. Knebusch, supra. -12- Since the jury found for appellant on appellee's complaint, it apparently determined appellee's on-going problems were not caused by appellant's negligence. There was substantial evidence in the record to support the jury's conclusion. Verbon v. Pennese, supra; Glover v. Toys-R-Us (May 19, 1994), Cuyahoga App. No. 64787, unreported. See, also, Alvarado v. Kaschulla (Apr. 2, 1987), Cuyahoga App. No. 52002, unreported. Therefore, the trial court should not have substituted its judgment for that of the jury in this matter. Verbon v. Pennese, supra. For the foregoing reasons, appellant's assignment of error is sustained. The order of the trial court granting appellee's motion for a new trial is reversed and the jury's original verdict for appellant is reinstated. Judgment reversed. -13- It is ordered that appellant recover of appellee her 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 Cuyahoga County 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. JAMES M. PORTER, P. J., AND TERRENCE O'DONNELL, J. CONCUR JUDGE KENNETH A. ROCCO N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc. App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E), unless a motion for reconsideration with supporting brief, per App.R. 26(A) is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .