COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73336 ELIZABETH WHITES, ET AL. : : : JOURNAL ENTRY PLAINTIFFS-APPELLEES : : AND v. : : OPINION DEBARTOLO REALTY : PARTNERSHIP, ET AL. : : DEFENDANTS-APPELLANTS : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 8, 1998 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, No. CV-286804. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-Appellees: Mark B. Cohn, Esq. Robert J. Dubyak, Esq. McCarthy, Lebit, Crystal & Haiman 1800 Midland Building 101 Prospect Avenue, W. Cleveland, OH 44115-1088 For Defendants-Appellants: James A. Sennett, Esq. Matthew J. Grimm, Esq. Williams & Sennett Co., L.P.A. 2241 Pinnacle Parkway Twinsburg, OH 44087-2367 -2- TIMOTHY E. McMONAGLE, J.: Defendants-appellants, DeBartolo Realty Partnership dba Richmond Mall Shopping Center and Richmond Mall, Inc. ( appellants )1, appeal the decision of the Cuyahoga Common Pleas Court which granted plaintiffs-appellees' Elizabeth and Frank Whites and J.C. Penney Company, Inc.'s ( appellees ) motions for a new trial and ordered appellees' claims bifurcated on retrial. For the reasons that follow, we affirm. The record reflects that Elizabeth Whites ( Whites ) brought suit against appellants on March 23, 1995 for injuries sustained when she slipped and fell on a patch of ice in the employee parking lot at Richmond Mall while on her way to work at J.C. Penney Company, Inc. ( J.C. Penney ). Whites asserted claims of negligence and breach of a lease agreement between J.C. Penney and Richmond Mall, to which Whites claimed she was a third-party beneficiary. Whites' complaint included a claim by her husband, Frank Whites, for loss of consortium. At trial, after the trial court ruled that Whites was a third-party beneficiary of the agreement (Tr. 499), Whites dismissed the negligence claim with prejudice and proceeded only on the breach of lease agreement claim. On January 11, 1996, J.C. Penney, a self-insured employer, filed a motion to intervene in the action to pursue its subrogation rights for workers' compensation benefits paid and to be paid to 1At trial, to avoid jury confusion, the parties agreed to refer to appellants as Richmond Mall. -3- Whites as a result of her fall. J.C. Penney claimed that it had incurred damages in the form of workers' compensation benefits as a result of Richmond Mall's breach of the lease agreement. None of the parties opposed the motion and the trial court granted it on January 31, 1996. The evidence adduced at trial reveals that on April 20, 1965, J.C. Penney and Richmond Mall entered into a lease agreement in which Richmond Mall agreed to keep [the] parking areas, sidewalks, aisles, malls, streets and driveways properly drained and reasonably free from snow and ice. The lease agreement also provided that the parking lot and sidewalks were specifically for the use of J.C. Penney's employees and customers. Six witnesses testified for appellants about the condition of the parking lot on the morning of Whites' fall. Whites testified that on January 13, 1994, she arrived for her job as a hairdresser with J.C. Penney between 7:30 a.m. and 7:55 a.m. She parked her car in the employee parking lot and proceeded to walk to the designated employee entrance. Although there was no snow on the parking lot, Whites observed patches of white ice in the lot. She carefully walked around some of the ice patches but slipped and fell on a patch of ice she could not see. Whites testified that there was no salt or other de-icing material on the parking lot when she fell. James E. Laughman, Store Manager at J.C. Penney's Richmond Mall store, testified that he arrived for work at about 8:00 a.m. on the morning of January 13, 1994. He testified that the parking -4- lot was very icy, very slick, that it did not appear that any de- icing of the parking lot had been done that morning and that he did not observe any Richmond Mall employees working in the parking lot. After he reached his office, Laughman called Dennis Waina, General Manager of Richmond Mall, to report the icy condition of the parking lot. Brad Jennings, Loss Prevention Manager at J.C. Penney's Richmond Mall store, testified that he parked his car in the employee parking lot around 8:00 a.m. on the morning of January 13, 1994 and walked across the lot to the employee entrance. Jennings testified that the lot was extremely icy and he did not notice any salt or other de-icing material on the parking lot. Jennings stated that as he walked across the ice, he expected that someone would likely fall in the lot that day. Marilyn Marcelli, a hairdresser who worked with Whites, testified that she parked in the employee parking lot at approximately 8:30 a.m. on the morning of January 13, 1994. Marcelli described the parking lot as very slick and testified that she slipped and almost fell in the lot. Jean Price was scheduled for her weekly 8:00 a.m. appointment with Whites on January 13, 1994. Price testified that when she pulled her car into Richmond Mall, she realized that the parking lot was extremely icy, so she parked her car as close to the main entrance of the mall as possible. Price testified that when she got out of her car, she had to inch her way to the main entrance. Appellants' forensic engineer, James D. Madden, testified that -5- he inspected the location of Whites' fall on January 16, 1996 between 7:15 a.m. and 8:30 a.m. He testified that an easy, inexpensive and reliable way to de-ice the Richmond Mall parking lot would be to routinely salt the lot between midnight and six a.m., when temperatures are lowest. Madden testified that a weather report from the National Weather Service showed high temperatures for Cleveland on January 11, 12 and 13, 1994 of 38 F, 39 F and 36 F respectively and low temperatures of 27 F, 26 F and 25 F respectively. According to Madden, at these temperatures, if Richmond Mall had de-iced the parking lot properly, there would not have been any ice on the lot when Whites fell. Madden opined to a reasonable degree of engineering certainty that based on these temperatures and the fact that Whites fell, on January 13, 1994, the employee parking lot at J.C. Penney was not reasonably free of ice. Appellants called only one witness. Dennis Waina, General Manager of the Richmond Mall, testified that de-icing is done by the Richmond Mall maintenance department on an as-needed basis under his direction. Waina testified that weekly time sheets for the maintenance department reflect that on the three days prior to Whites' fall, maintenance department employees spent six, eight and four hours, respectively, removing snow and ice from the exterior of the mall. Waina admitted, however, that there is no way to tell from these records how much time was spent only on de-icing or when during the day the de-icing was done. Waina also admitted that -6- Richmond Mall has no record that reflects the condition of the parking lot on January 13, 1994. Waina could not recall what he did on January 13, 1994 to determine if the parking lot needed de-icing and admitted that he could not recall anything in particular about that day. He testified, however, that on January 13, 1994, Richmond Mall had a pickup truck with a plow, a highway salt spreader, snow shovels, hand salt spreaders and calcium and rock salt on the premises available for ice removal. A maintenance supervisor and two maintenance employees, Frank Edwards and Lamar Harris, were on duty prior to 7:55 a.m.; Edwards reporting for work at 4:48 a.m. and Harris at 7:00 a.m. Waina testified that he did not know and there are no specific records indicating what work Edwards or Harris did between 5:00 a.m. and 7:55 a.m., but he had generally instructed his employees to direct their attention to the areas in the parking lot that had the most significant accumulations of snow and ice. He testified that he and his employees were aware that J.C. Penney employees arrive for work early in the morning and, thus, would work in the J.C. Penney store area first. Appellants did not call either Edwards or Harris to testify, although Edwards still worked for Richmond Mall at the time of trial. J.C. Penney's sole witness was Charles Wiggins, Claims Director for Compensation Consultants, Inc., the third-party administrator of J.C. Penney's workers compensation claims. Wiggins testified that J.C. Penney had paid Whites approximately $27,000 in workers compensation benefits, including medical -7- expenses and temporary total disability benefits. Wiggins testified that J.C. Penney had stopped paying temporary total disability benefits in February, 1997 because Whites' condition had become permanent but that she would certainly apply for and receive a permanent partial disability award. Wiggins opined that based on the nature of Whites' injury, her age, and the allowed conditions in the claim, within a reasonable degree of certainty, over the next 22 years2, J.C. Penney would pay Whites $211,667 in workers' compensation benefits. The jury returned a unanimous verdict in favor of appellants. Pursuant to Civ.R. 59, appellees filed respective Motions for a New Trial, which were granted by the trial court on the grounds that J.C. Penney's involvement in the case confused and prejudiced the jury and the jury's verdict was against the weight of the evidence. Appellants timely appeal, assigning the following error for our review: THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED AS A MATTER OF LAW IN GRANTING PLAINTIFFS-APPELLEES ELIZABETH AND FRANK WHITES' AND J.C. PENNEY'S MOTIONS FOR A NEW TRIAL. In its assignment of error, appellants contend that the trial court erred in granting appellees' motions for a new trial. Specifically, appellants argue that the jury verdict in favor of Richmond Mall was supported by competent, credible evidence, that the trial court applied an incorrect standard in ruling on 2Whites' life expectancy based on a U.S. life table (Tr. 443, 454). -8- appellees' motion, and that appellees waived any objection to J.C. Penney's involvement in the case by failing to oppose its motion to intervene. Civ.R. 59(A)(6) allows the trial court to grant a party's motion for a new trial where the judgment is not sustained by the weight of the evidence. Similarly, Civ.R. 59(A)(9) allows the trial court to grant a motion for a new trial in the sound discretion of the court for good cause shown. A reviewing court will not disturb a trial court's ruling on such a motion absent an abuse of discretion. Rohde v. Farmer (1970), 23 Ohio St.2d 82, 90; Jones v. Olcese (1991), 75 Ohio App. 3d 34, 37. The term abuse of discretion connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. When a trial court's decision on a new trial motion involves questions of fact, the abuse of discretion standard requires a reviewing court to view the evidence favorably to the trial court's action rather than to the original jury's verdict. Malone, et al. v. Courtyard By Marriot Ltd. Partnership, et al. (1996), 74 Ohio St.3d 440, 448. This deference to a trial court's grant of a new trial stems from a recognition that the trial judge is better situated than a reviewing court to pass on questions of witness credibility and the surrounding circumstances and atmosphere of the trial to determine whether the jury's verdict resulted in manifest injustice. Id. -9- A jury verdict, however, cannot be set aside lightly by conclusory statements of the trial judge not grounded in the evidence. It is axiomatic that the trial court cannot simply substitute its opinion for that of the jury. Gedetsis v. Anthony Allega Cement Contractors, Inc. (Sept. 23, 1993) Cuyahoga App. No. 64954, unreported. If the trial court's discretionary action in granting a new trial is supported by competent, credible evidence, however, a reviewing court will not reverse. Sanders, et al. v. Mt. Sinai Hospital, et al. (1985), 21 Ohio App.3d 249, 253. Viewing the evidence here in a light most favorable to the trial court's ruling, we find no abuse of discretion. At trial, appellees established that 1) there was a lease agreement between Richmond Mall and J.C. Penney; 2) in the lease agreement, Richmond Mall agreed to keep the parking lot reasonably free of ice and snow; 3) Whites was a third-party beneficiary of the lease; 4) Whites fell on a patch of ice in the employee parking lot on the morning of January 13, 1994; and 5) she sustained injuries to her back and knee as a direct result of her fall. Appellants did not refute any of this evidence. Appellees also established that on the morning of January 13, 1994, appellants had not taken any steps to remove the ice from the employee parking lot. Five witnesses testified to the extremely icy conditions of the parking lot on the morning in question and that no de-icer or salt was on the ground to melt the ice. This testimony was undisputed by appellants. In addition, appellees' forensic expert testified to a reasonable degree of engineering -10- certainty that on January 13, 1994, the employee parking lot at J.C. Penney was not reasonably free of ice. Appellants provided no rebuttal evidence concerning this expert testimony and did not retain an expert to contradict the expert report or testimony of appellees' expert. Moreover, appellants presented no evidence of what efforts they had made on January 13, 1994, to keep the parking lot reasonably free of ice. The testimony of appellants' single witness, Dennis Waina, established only that snow and ice removal equipment and salt were available on January 13, 1994 and that two maintenance department employees were working on the exterior of the mall premises prior to Whites' fall. Appellants presented no evidence that either the equipment or salt was actually used prior to Whites' fall. Indeed, Waina admitted that although he knew what general procedures were in place for snow and ice removal, and that two maintenance employees were working on the morning of Whites' fall, he did not know if those procedures were followed on the morning in question and there are no records regarding where the maintenance employees were working that morning or specifically what they were doing. Appellants correctly note that there is nothing in the record to substantiate the trial court's statement that the maintenance workers did not testify because they were not working in the area of the employee parking lot or employee entrance. It is noteworthy, however, that the workers, either of whom could have testified as to what de-icing was done on the morning of January 13, 1994 prior to Whites' fall, did not testify. -11- Finally, although Waina testified for appellants that maintenance department employees had spent time removing ice and snow from the exterior of Richmond Mall on the three days prior to Whites' fall, appellants presented no evidence regarding the condition of the parking lot on January 13, 1994 or any of the days prior to her fall. Based on this evidence, the jury verdict in favor of appellants was so manifestly contrary to the natural and reasonable inferences to be drawn from the evidence as to produce a result in complete violation of substantial justice. Royer v. Bd. Of Education (1977), 51 Ohio App.2d 17, 20; Mustafa v. Heneghan (Sept. 4, 1997) Cuyahoga App. No. 71607, unreported. Accordingly, the trial court did not abuse its discretion in granting appellees' motions for a new trial. Appellants assert, however, that the trial court abused its discretion because it did not apply the proper standard in ruling on appellees' motions. In ruling on a motion for a new trial on the basis of a claim that the judgment is not sustained by the weight of the evidence, the trial court must weigh the evidence and pass upon the credibility of the witnesses not in the substantially unlimited sense that such weight and credibility are passed on originally by the jury but in the more restricted sense of whether it appears to the trial court that manifest injustice has been done and that the verdict is against the manifest weight of the evidence. Rohde v. Farmer (1970), 23 Ohio St.2d 82, 92. Appellants assert that the trial court should not have granted -12- appellees' motions for a new trial because it incorrectly applied a greater weight of the evidence standard, rather than the manifest weight of the evidence standard enunciated by the Ohio Supreme Court in Rohde, and it did not find that a manifest injustice had been done. We disagree. First, as explained above, the jury verdict in favor of appellants was against the manifest weight of the evidence. Therefore, even if the trial court's opinion incorrectly states that it was against the greater weight of the evidence, it is apparent that the trial court applied the proper standard. Second, the trial court's written opinion granting appellees' motions for a new trial indicates that the trial court concluded that the jury verdict had resulted in manifest injustice. In its opinion, the trial court noted that in discussions at sidebar and in chambers, counsel for J.C. Penney indicated that it had not made a determination that Whites would receive any future compensation from J.C. Penney if she made a permanent total disability claim. The trial court noted, however, that the testimony of J.C. Penney's witness, Charles Wiggins, regarding future workers' compensation payments to Whites in excess of $200,000, and the arguments of J.C. Penney's counsel, allowed the jury to infer that Whites will, in fact, continue to be compensated by J.C. Penney for the injuries she suffered when she slipped and fell on the ice in the Richmond Mall parking lot. The trial court concluded that J.C. Penney's involvement in the trial adversely affected the fairness and integrity of the judicial process and that a fair trial was not -13- had. Clearly, the trial court found that a manifest injustice had been done in this case. We are similarly not persuaded by appellants' argument that the trial court abused its discretion in granting a new trial on the basis that J.C. Penney's involvement in the case confused and prejudiced the jury because appellees waived any objection to J.C. Penney's intervention in this case when they did not oppose its motion to intervene or ask the court to order separate trials. The record reflects that on several occasions during the trial, the trial court expressed its concern about J.C. Penney's involvement in the action. Moreover, although J.C. Penney's motion to intervene went unopposed, the Whites expressed similar concerns about J.C. Penney's involvement during the trial. Accordingly, the trial court did not abuse its discretion in granting a new trial based on that court's view of the prejudice resulting from J.C. Penney's involvement in the trial. The trial court's order granting a new trial is affirmed. -14- It is ordered that appellees recover of appellants 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. TIMOTHY E. McMONAGLE JUDGE BLACKMON, A.J. and PORTER, J., CONCUR. N.B. This entry is an announcement of the court's decision. See App.R. 22(D) and 26(A); Loc.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 .