COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72142 : LETHA CHANEY, ADMINISTRATRIX, : ACCELERATED CASE ETC. : : Plaintiff-Appellant : : JOURNAL ENTRY -vs- : AND : OPINION DAVILYN EASON, ET AL. : : PER CURIAM Defendants-Appellees : DATE OF ANNOUNCEMENT OF DECISION DECEMBER 24, 1997 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE CUYAHOGA COUNTY COMMON PLEAS COURT CASE NO. CV-303127 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: ------------------------ APPEARANCES: For Plaintiff-Appellant: GARY COWAN (#0039852) GARSON & ASSOCIATES CO., L.P.A. 1600 Rockefeller Building 614 Superior Avenue, N.W. Cleveland, Ohio 44113 For Defendants-Appellees: JOHN C. KEALY (#0031331) 1100 Illuminating Building 55 Public Square Cleveland, Ohio 44113 JOSEPH H. WANTZ (#0023406) 2121 The Superior Building Cleveland, Ohio 44114 PER CURIAM: Plaintiff-appellant, Letha Chaney ( appellant ), adminis- tratrix of the Estate of Shawn Chaney, appeals from the judgment of -2- the trial court granting defendants-appellees, State Farm Insurance Company and Davilyn Eason's ( appellees ), motion for directed verdict. Appellant assigns the following error for our review: THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT BY GRANTING APPELLEES' MOTION FOR DIRECTED VERDICT AS CONSTRUING THE EVIDENCE SUBMITTED AT TRIAL MOST STRONGLY IN FAVOR OF APPELLANT[.] REASONABLE MINDS CANNOT COME TO BUT ONE CONCLUSION WHICH IS ADVERSE TO THE APPELLANT. Finding that appellant's appeal lacks merit, the judgment of the trial court is affirmed. I. On February 9, 1996, appellant, the personal representative and administratrix of her son Shawn Chaney's estate, filed a complaint in the Cuyahoga County Common Pleas Court against her uninsured motorist carrier, appellee State Farm Insurance Company ( State Farm ), and Davilyn Eason. Count I of appellant's complaint sets forth a cause of action for wrongful death; Count II of appellant's complaint sets forth a claim for survivorship rights; and Count III of appellant's complaint sets forth a cause of action for uninsured motorist coverage. On March 21, 1996, appellee, State Farm, filed its answer, cross-claim and third party complaint against Faye B. Peterson, U Auto Leasing and Abraham Stern for indemnification. On September 10, 1996, Faye B. Peterson was voluntarily dismissed as a party to the complaint. On February 13, 1997, a jury trial was conducted. At the close of the evidence, appellee's counsel moved for a directed verdict. The trial court granted appellee's motion for directed -3- verdict and dismissed the case. On August 6, 1997, the trial court amended its judgment to include the language there is no just reason for delay . II. At approximately 7:30 p.m. on October 24, 1994, appellee, Davilyn Eason, borrowed her cousin's car to go to the Euclid Deli, a convenient store located on Alcoy and Euclid Avenue in Cleveland, Ohio. Upon exiting the store, Eason was approached by her friend Laverne Jones who needed a ride. Eason and Jones proceeded to enter Eason's car. As both Eason and Jones got into the car, Shawn Chaney, the decedent, approached the driver's side of the vehicle. Eason heard Chaney say, Bitch, don't move the car. Jones then told Eason, go, he's got a gun. With the vehicle already running, Eason stepped onto the accelerator and the vehicle began moving. At this time, Chaney had placed his left hand inside of the car and grabbed the steering wheel. Chaney continued to hang on to the steering wheel as Eason accelerated to speeds of 40-45 miles per hour. Eason, attempting to reach the police station, went left of center and over a tree lawn, when she eventually felt a jerk or hard pull to the left of the vehicle. After feeling the jerk, Eason was unable to remember any other details about the accident or how it occurred. Eason later learned that Shawn Chaney had been killed. III. In her sole assignment of error, appellant maintains that the trial court erred in granting appellees' motion for directed -4- verdict. Civ.R. 50(A)(4) states: When granted on the evidence. When a motion for a directed verdict has been properly 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 Wise v. Timmons (1992), 64 Ohio St.3d 113. In the present case, appellant brought a cause of action for wrongful death against appellee Davilyn Eason for negligently operating her motor vehicle. Appellant contends that Eason's negligence was the direct and proximate cause of her son, Shawn Chaney's, death. Because Eason did not possess automobile insurance at the time of the incident, appellant asserted a claim for uninsured motorist coverage against appellant's insurance company, appellee State Farm. In order to establish a cause of action for wrongful death, a plaintiff must prove by a preponderance of the evidence the following: 1) that a person died. 2) the action was commenced within two years of the decedent's death. 3) a wrongful act, neglect or default of the defendant was the proximate cause of the death and said wrongful act, neglect or default would have entitled the decedent to maintain an action and recover damages if death had not ensued. 4) the decedent was survived by a spouse, -5- children, parents, or other next of kin. 5) the survivors have incurred damages as a result of the wrongful death. R.C. 2125.01, et seq.; Keller, Admx. V. Guyton, M.D., et al. (February 4, 1993), Cuyahoga App. No. 61363, unreported. In order to maintain a cause of action for negligence, the plaintiff must show that the injuries were proximately caused by the breach of defendant's duty owed to the injured party. Booze v. Amans(March 27, 1997), Cuyahoga App. No. 70664, unreported, citing Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St.3d 75, 77. Whether a defendant owes a duty to a plaintiff depends upon the relationship between them. Whether a duty exists depends on the foreseeability of the injury. Injury is foreseeable if a defendant knew or should have known that his act was likely to result in harm to someone. Amans, supra citing Huston v. Konieczny (1990), 52 Ohio St.3d 214. [I]t is firmly established that to warrant a finding that negligence is the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the negligence alleged, the general rule being that a defendant is not answerable for anything beyond the natural, ordinary, and reasonable consequences of his conduct. Farlow v. Board of County. Comm'rs. of Lorain County (April 18, 1979), Lorain County App. Nos. 2812, 2813, unreported, citing 39 O. Jur.2d, Negligence S37. Thus, one who commits an original act of negligence is not necessarily liable for all the consequences thereof, but only for -6- its natural and probable consequences. Farlow, supra. Where injury results through the intervention of other forces which themselves are wrongful, the injury resulting therefrom cannot be said to be the natural or probable consequences of the original act. Id. The causal connection between the original act of negligence and the injury is broken. Id. In her sole assignment of error, appellant asserts that Eason's failure to stop her vehicle while Chaney was hanging onto the steering wheel was the proximate cause of Chaney's death. Appellee, however, contends Chaney's death was the direct and proximate result of Chaney's own negligence and assumption of the risk when he grabbed and held onto the steering wheel in Eason's vehicle. A careful examination of the record fails to reveal that even after construing the evidence most favorably toward appellant, reasonable minds could come to but one conclusion upon the evidence presented: Davilyn Eason's flight from an emergency situation with Shawn Chaney hanging onto her vehicle was not the proximate cause of Chaney's death. In a negligence action, the so-called emergency doctrine applies where there has been a sudden and unexpected occurrence of a transitory nature which demanded immediate action without time for reflection or deliberation and does not comprehend a static condition which lasted over a period of time. Miller v. McAllister (1959), 169 Ohio St. 487. For the following reasons, we believe the emergency doctrine, relieves Davilyn Eason of liability. -7- In the case sub judice, Eason, upon exiting the store, was approached by a friend who needed a ride. After both individuals entered Eason's vehicle, they were confronted by Shawn Chaney, a large male, who demanded that Eason not move her vehicle. Eason was then informed that Chaney, who she did not know, had a gun. In response to Chaney's demand, Eason, who did not have time to reflect on the situation at hand, immediately began to flee. Appellees further argue that Eason should be relieved of liability for Chaney's death because Chaney assumed the risk of serious injury or death when he approached Eason's vehicle in a threatening manner, grabbed hold of the steering wheel and failed to let go. We agree. Although Ohio has adopted a system of comparative negligence, the defense of assumption of the risk still exists to bar recovery by a plaintiff who has consented to encounter a known risk. Amans, supra. Assumption of the risk as a defense to negligence survives in two forms; 1) express assumption of risk, that which is contractual, and 2) primary assumption of risk, meaning that no duty was owed by the defendant to protect the plaintiff from [a] specific risk because the risk encountered is so directly associated with the activity in question that it creates no jury issue to be decided. Id. citing Gallagher v. Cleveland Browns Football Co. (1996), 74 Ohio St.3d 427, 431. As previously determined, the emergency situation created when Shawn Chaney approached Eason's vehicle in a confrontational manner demanding that Eason not move her vehicle, as well as the belief -8- that Chaney might be carrying a gun, relieved Eason of any duty which she may have owed Chaney at that time. Eason is further relieved of liability in that Chaney should have appreciated the risk directly associated with approaching a vehicle in a threatening manner which would lead the occupants to believe they were going to be robbed or in some way harmed. Clearly, Chaney would have known that in such a situation, the occupants of the vehicle would try to get away from him. Thus, Chaney voluntarily assumed the risk that he might in some way be seriously injured when he approached and threatened Eason. Accordingly, no jury issue has been created and appellant's sole assignment of error is overruled. Judgment affirmed. It is ordered that appellees recover of appellant their costs herein taxed. -9- 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. JAMES M. PORTER, P.J. JOHN T. PATTON, JUDGE LEO M. SPELLACY, JUDGE N.B. This 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(B) 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 clerk per App.R. 22(B). See, also, S.Ct.Prac.R. II, Section .