GREGORY WEBER, Plaintiff-Appellee, vs. SHEILA M. KINNEN, Defendant-Appellant, and PETER KINNEN Defendant.
APPEAL NO. C-100801 TRIAL NO. A-0705980
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
December 28, 2011
2011-Ohio-6718
[Cite as Weber v. Kinnen, 2011-Ohio-6718.] Civil Appeal From: Hamilton County Court of Common Pleas. Judgment Appealed From Is: Reversed and Cause Remanded. McCaslin, Imbus & McCaslin, Thomas J. Gruber, and Michael P. Cussen, for Plaintiff-Appellee, Taliaferro & Eynon, LLC, and Ernest A. Eynon II, for Defendant-Appellant. Please note: This case has been removed from the accelerated calendar.
{¶1} Defendant-appellant Sheila Kinnen appeals from the order of the Hamilton County Court of Common Pleas granting plaintiff-appellee Gregory Weber‘s motion for a new trial. Because the trial court abused its discretion in granting a new trial, we reverse.
Facts & Procedural History
{¶2} On July 7, 2005, Gregory Weber was stopped at a traffic light when his sports-utility vehicle was struck from behind by a car driven by Sheila Kinnen. Weber filed suit against Kinnen, and at trial, he claimed that due to her negligence, he had incurred more than $40,000 in medical expenses and more than $200,000 in lost wages and benefits. He further sought noneconomic damages for pain and suffering and loss of enjoyment of life.1
{¶3} Kinnen conceded that she had negligently struck Weber‘s vehicle. Nevertheless, she maintained that her negligence was not the proximate cause of the damages he alleged. Kinnen primarily relied on the fact that at the time of the accident, Weber was recovering from similar injuries that he had sustained on December 23, 2004, when his vehicle had been rear-ended by a pickup truck.
{¶4} In the months following the December 2004 accident, Weber was unable to perform his job as a commercial pilot due to pain, muscle spasms, limited mobility, and prescription medication. He visited a neurologist on several occasions and attended 40 physical therapy sessions from January until May. Weber was still experiencing some pain in June, but his neurologist estimated that his treatment would conclude by September.
{¶5} According to Weber, however, his recovery was significantly delayed by the July 2005 accident with Kinnen. He reported more pain after the accident, and in August, he began seeing his neurologist and physical therapist again. Dr. Luis Pagani testified that after the accident, Weber experienced more pain and more spasms. He also indicated that Weber‘s pain had spread from the left side of his body to the right. Weber did not return to work until January 2007.
{¶6} In her defense, Kinnen downplayed the severity of the accident. She testified that she had come to a complete stop behind Weber before her foot had slipped off of the brake pedal while she rummaged through a bag. This had caused her car to roll forward into Weber‘s vehicle. After the impact, Weber had approached Kinnen to ask whether she and her daughters were okay. He also had refused medical treatment at the scene, although he had visited the emergency room later that afternoon.
{¶7} Moreover, Dr. Steven Wunder testified that it was “impossible” to say whether Weber was injured in the July 2005 accident. He conceded, however, that Weber “could have exacerbated a prior condition, but if he did, that was a minor type of strain, muscle strain, not anything significant.” Dr. Wunder further stated that he did not believe that Weber‘s daily activities would have been restricted by the accident for more than 24 hours.
{¶8} The jury initially awarded Weber $5,670 for medical expenses, $24,295 for lost wages and benefits, and no damages for pain and suffering and loss of enjoyment of life. The court then instructed the jury to award at least some amount for pain and suffering because they had awarded Weber damages for economic loss. The jury resumed their deliberations, and returned minutes later to award Weber an additional $10 for pain and suffering. On Weber‘s motion, the court granted a new trial.
Analysis
{¶9} In her single assignment of error, Kinnen argues that the trial court erred in granting a new trial. We agree.
{¶10}
{¶11} In granting a new trial, a court must “specify in writing the grounds upon which such new trial is granted.”
{¶12} Here the trial court decided to grant a new trial because the jury‘s $10 award for pain and suffering was “inadequate in the face of $5,600 in medical damages.” Although the court cited only
Standard of Review
{¶13} Whether to grant or deny a motion for a new trial under
Inadequate Damages Due to Passion or Prejudice
{¶14} Under
{¶15} In assessing whether a new trial is proper under this provision, “a reviewing court should consider the amount of the verdict, whether the jury considered incompetent evidence, improper argument by counsel, or other improper conduct which can be said to have influenced the jury.” Berge v. Columbus Community Cable Access (1999), 136 Ohio App.3d 281, 317, 736 N.E.2d 517, citing Dillon v. Bundy (1991), 72 Ohio App.3d 767, 773, 596 N.E.2d 500. “The amount of the verdict alone will not sustain a finding of passion or prejudice. There must be something contained in the record which the complaining party can point to that wrongfully inflamed the sensibilities of the jury.” Shoemaker v. Crawford (1991), 78 Ohio App.3d 53, 603 N.E.2d 1114.
{¶16} In this case, the trial court relied exclusively on the amount of the jury‘s award for pain and suffering in light of the amount of its award for medical expenses. Neither the court nor the parties, however, have pointed to anything in the record to
Weight of the Evidence
{¶17} We next turn to
{¶18} “In order to set aside a damage award as inadequate and against the manifest weight of the evidence, a reviewing court must determine that the verdict is so gross as to shock the sense of justice and fairness, cannot be reconciled with the undisputed evidence in the case, or is the result of an apparent failure by the jury to
{¶19} Having reviewed the evidence presented at trial, we cannot say that the jury‘s award was so gross as to shock our sense of justice and fairness. See, e.g., Iames v. Murphy (1995), 106 Ohio App.3d 627, 632, 666 N.E.2d 1147. Nor can we say that the award was apparently due to the jury‘s failure to include all the items of damage making up Weber‘s claim. See Drehmer v. Fylak, 163 Ohio App.3d 248, 2005-Ohio-4732, 837 N.E.2d 802, ¶14 (holding that the jury did not fail to include an award for pain and suffering by affirmatively rejecting such an award with a “$0” response to an interrogatory). Finally, we turn to whether the jury‘s award can be reconciled with the undisputed evidence in the case.
{¶20} This court has held that the trial court abused its discretion in denying a new trial under
{¶21} In Boldt v. Kramer, the jury awarded damages to Darlene Boldt in the amount of her emergency-room bill following a traffic accident with Jeanette Kramer, but no damages for pain and suffering. Boldt moved for a new trial, noting that “the undisputed evidence showed that she had incurred at least some pain and suffering immediately following the accident and in the emergency room.” The trial court denied the motion, and we reversed, holding that “under the facts of this case, where the jury awarded the amount of emergency-room medical expenses as damages, it was required to award Darlene Boldt an amount for pain and suffering
{¶22} Unlike Darlene Boldt, Sandra Scott was awarded over $20,000 in Scott v. Condo for past medical expenses, past pain and suffering, past inability to perform usual activities, and lost wages following a traffic accident. However, the jury expressly awarded nothing for future pain and suffering and future inability to perform usual activities, even though “the evidence was undisputed that Sandra Scott would continue to suffer some degree of pain as a result of the accident and some degree of physical limitation.” Scott at ¶6. We, therefore, held that the trial court had abused its discretion in denying Scott‘s motion for a new trial on these issues.
{¶23} Similarly, in Whiteside v. Bennett the jury awarded James Whiteside past medical expenses, past pain and suffering, lost wages, and future medical expenses, but no damages for future pain and suffering. Observing that “the evidence was undisputed that . . . Whiteside would continue to suffer some degree of pain as a result of the accident,” we held that the trial court abused its discretion in not granting a new trial under
{¶24} In each case, the jury had failed to award damages for the plaintiff‘s pain and suffering despite undisputed evidence to the contrary. But it does not follow that when the evidence of pain and suffering is disputed, the jury must award some damages for pain and suffering, even when it awards damages for medical expenses. See Ross v. Smith, 1st Dist. No. C-030301, 2003-Ohio-7147 (affirming the denial of a new-trial motion where the jury awarded $50 for medical expenses, but nothing for pain and suffering).
{¶25} Here, whether the July 2005 accident caused Weber‘s pain and suffering was disputed at trial. Kinnen testified that the accident had occurred at a low
{¶26} We recognize that in reviewing a trial court‘s decision to grant a new trial, we must “view the evidence favorably to the trial court‘s action rather than to the original jury‘s verdict.” Rohde, 23 Ohio St.2d, 262 N.E.2d 685 at 94. Nevertheless, there was clearly sufficient credible evidence in this case to support the jury‘s verdict. We, therefore, hold that the trial court acted unreasonably in granting a new trial for inadequate damages under
Conclusion
{¶27} Because the trial court abused its discretion in granting a new trial under
Judgment reversed and cause remanded.
SUNDERMANN, P.J., concurs.
CUNNINGHAM, J., dissents.
CUNNINGHAM, J., dissenting.
{¶28} I respectfully dissent. As the majority correctly observes, the decision to grant a new trial in this case was committed to the sound discretion of the trial court. We may, therefore, reverse “only upon a showing of an abuse of discretion by the trial court.” Rohde, 23 Ohio St.2d 82, 262 N.E.2d 685, at paragraph one of the syllabus.
{¶29} Viewing “the evidence favorably to the trial court‘s action rather than to the jury‘s verdict,” as required by Rohde, I must disagree with the majority. I cannot say that the trial court acted unreasonably, arbitrarily, or unconscionably in granting a new trial for inadequate damages, particularly given the nominal pain-and-suffering damages awarded by the jury.
{¶30} For this reason, I would affirm the judgment of the trial court.
Please note:
The court has recorded its own entry this date.