Evans v. Hunter

[Cite as Evans v. Hunter, 2018-Ohio-1498.]

COURT OF APPEALS

RICHLAND COUNTY, OHIO

FIFTH APPELLATE DISTRICT

JUDGES:

MICHELLE EVANS, ET AL : Hon. W. Scott Gwin, P.J.

: Hon. Patricia A. Delaney, J.

Plaintiffs-Appellants : Hon. Earle E. Wise, J.

:

-vs- :

: Case No. 17CA61

JOHN E. HUNTER :

:

Defendant-Appellee : OPINION

CHARACTER OF PROCEEDING: Civil apeal from the Richland County Court

of Common Pleas, Case No. 2016 CV 1496

JUDGMENT: Reversed and Remanded

DATE OF JUDGMENT ENTRY: April 18, 2018

APPEARANCES:

For Plaintiffs-Appellants For Defendant-Appellee

ERIC HENRY KENNETH BEDDOW

8440 Station Street 24 W. Third Street, Suite 204

Mentor, OH 44060 Mansfield, OH 44902

[Cite as Evans v. Hunter, 2018-Ohio-1498.]

Gwin, P.J.

{¶1} Plaintiffs-appellants Michelle and Bill Evans appeal the trial court’s decision

to deny their motion for directed verdict and post-dispositive motion for a new trial or

judgment notwithstanding the verdict in this personal injury action. Defendant-appellee

is John Hunter.

Facts & Procedural History

{¶2} On December 10, 2015, the Evans’ filed a complaint against Hunter in the

Richland County Court of Common Pleas. The complaint alleged Hunter negligently

caused an automobile collision on July 28, 2015 which proximately caused Michelle

Evans serious injury and caused Bill Evans loss of consortium. Hunter filed an answer to

the complaint on January 21, 2016. The matter went to a jury trial. At trial, the parties

stipulated to Hunter’s negligence in causing the automobile accident.

{¶3} On cross-examination, Hunter testified he was going two (2) miles per hour

at the time of the crash. Hunter stated he saw Michelle Evans lay down on the road and

complain of back pain after the accident. He testified she looked to be in a lot of pain.

Hunter admitted the accident was his fault. On direct examination, Hunter stated he is

seventy-seven (77) years old, has been married for forty-six years, and is retired. He

testified his airbag did not deploy during the accident.

{¶4} Dr. Zachary Gordon, the appellants’ expert, (“Gordon”) testified Michelle

Evans had degenerative type lower back pain prior to her accident. Gordon stated he

reviewed Michelle’s medical records. He testified the CT scans from November 2014 and

August 2015 represented a significant change. Gordon opined, to a reasonable degree

of medical probability, that the crash aggravated Michelle’s pre-existing back pain and

Richland County, Case No. 17CA61 3

caused a herniation at L4-5. Additionally, that the surgery Michelle had in September of

2015 was necessitated by the crash.

{¶5} Bill Evans, Michelle’s husband, saw Michelle at the hospital after the

accident, where she complained of back pain and stated her back symptoms got worse.

Bill stated he did recall Michelle having back pain for most of the year before the accident,

but could not recall the dates of her previous treatments or back issues.

{¶6} After Bill Evans testified, the trial court judge informed the attorneys that one

of the jurors reported that Hunter asked her, “do you wonder why, you probably wonder

why I leave to go to the bathroom?” The juror told Hunter she could not talk to him and

stated it did not affect her ability to be fair and impartial. The trial court asked if either

party had anything to address on the issue. Counsel for the Evans’ stated he did not think

additional questioning of the juror was necessary and asked that the trial court remind the

jurors not to speak to the parties. The trial court did remind the jurors not to speak to the

parties.

{¶7} Michelle Evans testified she is a preschool assistant at Clear Fork Valley

Local Schools. Michelle described the accident as a “T-bone,” where her car was totaled.

Prior to the crash, she had episodes of back pain several times per year and received

injections. Michelle stated she saw a doctor a week to two weeks prior to the crash

because she had back pain and received a spinal injection. Michelle testified that, before

the accident, she was feeling pain-free. Further, that after the accident, she had instant

back pain and could not walk. Defense counsel questioned Michelle about her previous

back pain. Michelle admitted that in October of 2011, her back pain was a ten out of ten,

even with medication, and then her pain was gone the next morning. Further, that two

Richland County, Case No. 17CA61 4

weeks before the accident, she described her pain as “feels like your lower back wants

to stab in half with pain.” Several friends and co-workers of Michelle testified she was in

pain after the accident. The Evans’ requested a total damage award of $305,910.64.

{¶8} At the crux of the parties’ respective arguments in this case is the testimony

of defense expert, Dr. Gerald Steiman (“Steiman”). Steiman testified that while he did not

examine Michelle, he reviewed her medical records from before and after the accident of

July 28, 2015. Steiman stated he reviewed every page of the records, which were “about

the size of 4-5 New York phonebooks,” including MRI reports, CT scan reports, and actual

imaging studies of the low back. Steiman testified he gave his answers based upon his

training, education, and experience, to a reasonable degree of medical probability.

{¶9} Steinman testified he reviewed the following medical records: accident

report, photographs of the vehicles, records of Mansfield EMS/squad report, MedCentral

Mansfield hospital records, records from Mid-Ohio Emergency Services, records of Dr.

Viau, orthopedic surgeon, records from OhioHealth Orthopedic Sports Medicine,

Massotherapy records, records of chiropractor Dr. Sawyer, Michelle’s calendar, Riverside

hospital records both before and after the accident, records of Mohican Sports Medicine

(rehab center), records of Summit Physical Therapy, Dublin emergency room records,

Avita Pain Management records, records from Central Ohio Primary Care Physicians,

records from Dr. Barwell from OhioHealth, records of Dr. Berry, chiropractor, notes of Dr.

Gordon, Dr. Gordon’s deposition, exhibits of Dr. Gordon’s deposition, deposition of Dr.

Aminian (pain manager), office records and deposition of Dr. Aminian.

{¶10} When asked his opinion, to a reasonable degree medical probability, what,

if any, injury Michelle sustained as a proximate result of the accident, Steiman testified

Richland County, Case No. 17CA61 5

Michelle sustained a flare-up of her pre-existing and ongoing low back discomfort.

Steiman testified he reached that conclusion by reviewing the medical records, including

the following: 2011 records of low back pain going back to 2011; 2014 records where

Michelle saw Dr. Viau with intense low back pain requiring admission to the hospital for

pain management; ER records where she received an injection; x-rays showing arthritic

changes and a congenital anomaly called partial lumbarization; November 2014 CT scan

showing arthritic changes and slippage of the fourth vertebral body; MRI showing

abnormalities of arthritic nature and protruding discs in low back; November 2014 records

noting no evidence of physical change by either the ER doctor or Dr. Viau; July 17, 2015

records of Dr. Viau noting he saw Michelle for an epidural injection; ER records after the

accident with non-radiating pain and the ER doctor’s release on pain medication; August

3rd records from Riverside where Michelle presented with back pain and the ER does a

CT scan of the back that shows a lot of arthritic changes in the low back; and records

showing Michelle went to Dr. Viau on August 5th saying the physical exam is unchanged

and she had no pinched nerve.

{¶11} Steiman testified the new pain described by Michelle as occurring on August

26th was not proximately related to the accident of July 28th because there was a new

finding of disc extrusion, free disc fragment, new pain, and new symptoms (foot drop,

weakness) that were not there after the accident. Steiman opined, to a reasonable degree

of medical probability, that the event that occurred between August 23rd and August 26th

caused the extruded disc that led to her September surgery. Steiman further testified that

his opinion, to a reasonable degree of medical probability, was the massage therapy,

Riverside Hospital medical treatment, and Avita pain management were unrelated to the

Richland County, Case No. 17CA61 6

crash and instead treatment was necessary because of the new problem that occurred

on August 23rd – August 26th.

{¶12} When asked whether he had an opinion as to what treatment would have

been appropriate for a flare-up of low back pain, Dr. Steiman stated that, as a result of

the flare-up of low back pain, Michelle “clearly needs to go to the emergency room which

she did on July 28th, goes to the ER again on August 3rd, and sees Viau on August 5th,

I think those are related to the captioned motor vehicle accident.” Steiman continued,

“but the subsequent treatment I think is an entirely separate and new problem.”

{¶13} On cross-examination, Steiman testified that, notwithstanding the fact that

he did not examine Michelle, he was able to fairly render an opinion in this case because

the medical records allowed him to “make a fair and clear-cut opinion.” When asked

whether he agreed that Michelle sustained an injury in this crash, Steiman responded,

“Correct. I think she had a flare-up of her pre-existing osteoarthritic problems. They were

pre-existing and ongoing.” Also during cross-examination, Steiman testified as to whether

he believed Michelle’s testimony that she was pain-free on the date of the accident.

Steiman stated that if Michelle testified she was pain-free at the time of the crash, there

is a discrepancy between her testimony and what she told Dr. Viau on August 5, 2015.

Steiman further testified that, according to his review of Viau’s records, Michelle was not

pain-free on July 28, 2015 because Viau’s records state Michelle was pain-free for one

week after the epidural, which was given on July 17, 2015, and the accident occurred

more than one week after she was given the epidural.

{¶14} On re-direct, Steiman stated what is critical to his opinion is the notes and

records of Dr. Viau, the only doctor who saw Michelle before and after the crash.

Richland County, Case No. 17CA61 7

{¶15} At the close of Hunter’s case, the Evans’ moved for a directed verdict on

the issue of proximate cause due to the fact that Dr. Steiman, Hunter’s expert, agreed

some treatment was reasonable and necessary. The Evans’ sought to remove the jury

verdict form finding for Hunter in its entirety and submit only the issue of damages to the

jury. The trial court denied the motion. At that point, counsel for the Evans’ also objected

to the testimony of Hunter regarding his age.

{¶16} On June 20, 2017, the jury determined by jury interrogatory that Hunter’s

negligence did not cause Michelle Evans’ injuries and entered a verdict in favor of Hunter.

The jury awarded the Evans’ zero damages.

{¶17} The Evans’ made an oral motion pursuant to Civil Rule 50 for judgment

notwithstanding the verdict and a motion for a new trial pursuant to Civil Rule 59(A). By

judgment entry on June 26, 2017, the trial court overruled both motions. The trial court

found there was sufficient evidence presented at trial from which the jurors could

reasonably conclude judgment in favor of Hunter was appropriate and that their decision

was not based upon passion or prejudice.

{¶18} The Evans’ appeal from the rulings of the Richland County Court of

Common Pleas and assign the following as error:

{¶19} “I. THE TRIAL COURT ERRED IN DENYING PLAINTIFF-APPELLANT’S

MOTION FOR A DIRECTED VERDICT ON THE ISSUE OF WHETHER MRS. EVANS

HAD SUSTAINED INJURY WHEN THE ENTIRETY OF THE EVIDENCE PRESENTED

SUPPORTED THAT CONCLUSION.

{¶20} II. THE TRIAL COURT ERRED IN DENYING PLAINTIFF-APPELLANT’S

MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT AND FOR A NEW

Richland County, Case No. 17CA61 8

TRIAL WHERE THE JURY’S VERDICT WAS CLEARLY CONTRARY TO THE LAW AND

EVIDENCE INTRODUCED AT TRIAL.”

II.

{¶21} We find the Evans’ second assignment of error is dispositive of this appeal.

In their second assignment of error, the Evans’ contend the trial court erred in denying

their motion for judgment notwithstanding the verdict and for a new trial.

{¶22} Judgment notwithstanding the verdict is proper if upon viewing the evidence

in a light most favorable to the nonmoving party and presuming any doubt to favor the

nonmoving party, reasonable minds could come to but one conclusion, that being in favor

of the moving party. Goodyear Tire & Rubber Co. v. Aetna Cas. & Sur. Co., 95 Ohio

St.3d 512, 769 N.E.2d 835 (2002). “Neither the weight of the evidence nor the credibility

of the witnesses is for the [trial] court’s determination in ruling upon [a JNOV].” Osler v.

Lorain, 28 Ohio St.3d 345, 504 N.E.2d 19 (1986), quoting Posin v. A.B.C. Motor Court

Hotel, 45 Ohio St.2d 271, 344 N.E.2d 334 (1976). The decision to grant or deny a Civil

Rule 50(B) motion for judgment notwithstanding the verdict is reviewed de novo by an

appellate court. Id.

{¶23} Civil Rule 59(A) governs grounds for a new trial and states as follows:

A new trial may be granted to all or any of the parties and on all or

part of the issues upon any of the following grounds:

(4) Excessive or inadequate damages, appearing to have been given

under the influence of passion or prejudice;

***

(6) The judgment is not sustained by the weight of the evidence;

Richland County, Case No. 17CA61 9

however, only one new trial may be granted on the weight of the

evidence in the same case; * * *

{¶24} The determination of whether to grant a new trial pursuant to Civil Rule

59(A)(4) and (6) is within the sound discretion of the trial court and will not be reversed

absent an abuse of discretion. Yungwirth v. McAvoy, 32 Ohio St.2d 285, 291 N.E.2d 739

(1972); Rhode v. Farmer, 23 Ohio St.2d 82, 262 N.E.2d 685 (1970). 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 include all the items of damages making up the

plaintiff’s claim. Shadle v. Morris, 5th Dist. Stark No. 2012CA00073, 2013-Ohio-906.

{¶25} Thus, in reviewing a motion for a new trial, we do so with deference to the

trial court’s decision, recognizing 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.” Malone v. Courtyard by Marriott L.P., 74 Ohio St.3d 440, 659

N.E.2d 1242 (1994).

{¶26} In order to determine whether passion or prejudice affected the jury’s

damage award the appellate court must consider: (1) the amount of the verdict and (2)

whether the jury considered improper evidence, improper argument by counsel, or other

inappropriate conduct which had an influence on the jury. Dillon v. Bundy, 72 Ohio App.3d

767, 596 N.E.2d 500 (10th Dist. 1991). To support a finding of passion or prejudice, it

must be demonstrated that the jury’s assessment of the damages was so overwhelmingly

disproportionate as to shock reasonable sensibilities. Pena v. Northeast Ohio Emergency

Richland County, Case No. 17CA61 10

Affiliates, Inc., 108 Ohio App.3d 96, 670 N.E.2d 268 (9th Dist. 1995). There must be

something contained in the record to which the complaining party can point that

“wrongfully inflamed the sensibilities of the jury.” Shoemaker v. Crawford, 78 Ohio App.3d

53, 603 N.E.2d 1114 (10th Dist. 1991). The mere size of the verdict is insufficient to

establish proof of passion or prejudice. Pearson v. Cleveland Acceptance Corp., 17 Ohio

App. 2d 239, 246 N.E.2d 602 (8th Dist. 1969).

{¶27} The Evans’ contend the testimony regarding Hunter’s age, marital status,

employment condition, and poor health improperly appealed to the passion and prejudice

of the jury. We disagree. First, there was no information given to the jury about Hunter’s

health. One of the jurors reported that Hunter asked her, “do you wonder why, you

probably wonder why I leave to go to the bathroom?” The juror told Hunter she could not

talk to him and stated it did not affect her ability to be fair and impartial. Counsel for the

Evans’ stated he did not think additional questioning of the juror was necessary. Thus,

none of the jurors received information about Hunter’s health. Additionally, at the time of

the testimony regarding Hunter’s age and marital status, counsel for the Evans’ did not

object to the testimony. We find the brief testimony regarding Hunter’s age and marital

status cannot be said to be information that “wrongfully inflamed the sensibilities of the

jury.” Accordingly, the trial court did not abuse its discretion in denying the Evans’ motion

to grant a new trial pursuant to Civil Rule 59(A)(4).

{¶28} When considering a motion for new trial pursuant to Civil Rule 59(A)(6), a

court must weigh the evidence and pass on the credibility of the witnesses. A new trial

will not be granted where the verdict is supported by competent, substantial, and

apparently credible evidence. Harris v. Mt. Sinai Med. Ctr., 116 Ohio St.3d 139, 876

Richland County, Case No. 17CA61 11

N.E.2d 1201 (2007). Because a trial court is in the best position to decide issues of fact,

it is vested with broad discretion in ruling upon motions for new trial based on Civil Rule

59(A)(6). Id. In order to set aside a damage award as against the manifest weight of the

evidence, a reviewing court must determine the verdict cannot be reconciled with the

undisputed evidence in the case. Johnson v. Burris, 5th Dist. Guernsey No. 14 CA 12,

2015-Ohio-260. Generally, a new trial should be granted pursuant to Civ.R. 59(A)(6)

where it appears that the jury awarded inadequate damages because it failed to consider

an element of damages established by uncontroverted expert testimony. Baum v.

Augenstein, 10 Ohio App.3d 106, 460 N.E.2d 701 (10th Dist. 1983). However, if the

verdict is supported by substantial, competent, credible evidence, a trial court abuses its

discretion in granting a new trial based upon the weight of the evidence. Hancock v.

Norfolk & Western Ry. Co., 39 Ohio App.3d 77, 529 N.E.2d 937 (8th Dist. 1987).

{¶29} Hunter argues that, despite the uncontroverted medical evidence, there are

objectively discernible reasons why the jury may have rejected all of the expert testimony,

including the defense expert testimony. Specifically, Hunter contends that only by

assuming Michelle’s complaint of increased subjective pain after the accident was true

did Steiman offer an opinion that Michelle sustained any injury as a proximate result of

the accident. Further, that the only basis for Steiman finding Michelle suffered a flare-up

of pre-existing back pain was her claim that she was pain-free prior to the accident.

{¶30} We disagree with Hunter. Steiman did not qualify, limit, or condition his

opinion as being based on Michelle’s subjective complaints. Steiman testified he gave

his answers based upon his training, education, and experience, to a reasonable degree

of medical probability. When asked what his opinion was based upon, Steiman testified

Richland County, Case No. 17CA61 12

to an extensive list of medical records that he reviewed. Steiman stated he reviewed

every page of this extensive list of records, including MRI reports, CT scan reports, and

actual imaging studies of the low back. Steiman characterized the size of the records as

“about the size of 4-5 New York phonebooks.”

{¶31} Steiman stated his opinion, to a reasonable medical probability, was that

Michelle sustained a flare-up of her pre-existing and ongoing low back discomfort, as a

proximate result of the accident. When asked what he based this conclusion on, Steiman

did not testify it was based upon Michelle’s subjective complaints; rather, he specifically

cited numerous medical records, including the records of Dr. Viau, ER records, x-rays,

CT scans, and an MRI, that he based this conclusion on. Steiman further testified his

opinion as to what treatment would have been appropriate and related to the motor

vehicle accident for a flare-up of low back pain included the ER visit on July 28th, the ER

visit on August 3rd, and the appointment with Dr. Viau on August 5th. Steiman did not

state his conclusion was based upon Michelle’s subjective complaints of increase in pain.

{¶32} On cross-examination when Steiman testified Michelle had a flare-up of her

pre-existing osteoarthritic problems, he did not qualify, limit, or condition this opinion as

being based upon Michelle’s subjective complaints of increase in pain. Also, on cross-

examination, Steiman testified that, notwithstanding the fact that he did not examine

Michelle, he was able to fairly render an opinion in this case because the medical records

allowed him to “make a fair and clear-cut opinion.” On re-direct, Steiman noted as

“critical” to his opinion the notes and records of Dr. Viau, because he was the only doctor

who saw Michelle before and after the crash. Thus, the evidence in the record does not

Richland County, Case No. 17CA61 13

demonstrate that Steiman offered his opinion as to Michelle’s injury only by assuming

Michelle’s complaint of subjective increase in pain.

{¶33} As to Hunter’s argument that the only basis for Steiman finding Michelle

suffered a flare-up of pre-existing back pain was her claim that she was pain-free prior to

the accident is contradicted by Steiman’s testimony. On cross-examination, Steiman

testified as to whether he believed Michelle’s testimony that she was pain-free on the date

of the accident and stated that if Michelle testified she was pain-free at the time of the

crash, there is a discrepancy between her testimony and what she told Dr. Viau on August

5, 2015. Steiman testified his opinion that Michelle was not pain-free on the date of the

crash was based upon his review of Viau’s records, which stated Evans was pain-free for

one week after the epidural on the July 17, 2015, and the accident occurred more than a

week after the July 17, 2015 date. Thus, the record does not demonstrate the only basis

for Steiman finding Michelle suffered a flare-up of pre-existing back pain was her claim

that she was pain-free prior to the accident.

{¶34} We find the cases cited by Hunter to be factually distinguishable from the

instant case, as they do not involve a situation in which there is uncontroverted expert

testimony from both the plaintiff’s expert and the defendant’s expert that at least a limited

portion of the medical treatment was caused by the accident. See Shadle v. Morris, 5th

Dist. Stark No. 2012CA00073, 2013-Ohio-906 (affirming denial of new trial when the

testimony of the plaintiff’s expert was impeached by defense counsel); Pytel v. Crenshaw,

2nd Dist Montgomery No. 25487, 2013-Ohio-3552 (finding no evidence in the record

conceding the plaintiff suffered at least some type of injury as a result of the accident). In

this case, unlike in the Shadle case, it is not only the Evans’ expert, but also Hunter’s

Richland County, Case No. 17CA61 14

expert, who opines, based upon medical records, imaging, and clinical findings, that he

was able to render a “pretty clear-cut opinion” that certain medical treatment was

necessitated by the crash.

{¶35} Further, unlike the cases cited by Hunter with regards to subjective pain in

which the experts specifically stated he or she based their opinions and conclusions on

the plaintiff’s self-reported symptoms, as detailed above, Steiman did not make any such

qualifications or limitations in his testimony. Seymour v. Pierson, 5th Dist. Stark No.

2005CA00218, 2006-Ohio-961 (expert opinion based on appellant’s subjective

complaints); Welch v. Ameritech Credit Corp., 10th Dist. Franklin No. 04AP-1123, 2006-

Ohio-2528 (expert stated he specifically based his opinions on the plaintiff’s self-reported

symptoms and could not testify to a reasonable degree of medical certainty as to the

injury).

{¶36} While the evidence is controverted as to the remainder of the damages

claimed by Michelle, in this case, the evidence remains uncontroverted by all experts,

including the defense expert, that the emergency room visit on July 28th, the emergency

room visit on August 3rd, and the visit with Dr. Viau on August 5th were caused by the

motor vehicle accident. Accordingly, the jury awarded inadequate damages and the

verdict is not supported by competent and credible evidence because it failed to

compensate Michelle for the medical treatment on July 28th, August 3rd, and August 5th.

At a minimum, Michelle was entitled to compensation for the dates conceded by the

defense expert and the jury clearly lost its way in rendering its verdict. See Thomas v.

Pisoni, 5th Dist. Stark No. 2014CA00034, 2015-Ohio-376; Enter v. Fettman, 5th Dist.

Stark No. 2005CA00023, 2005-Ohio-5525; Hoschar v. Welton, 7th Dist. Columbiana No.

Richland County, Case No. 17CA61 15

06 CO 20, 2007-Ohio-7196; Smith v. Peterson, 6th Dist. Erie No. C.A. No. E-79-54, 1980

WL 35184 (Aug. 22, 1980).

{¶37} We find the trial court erred in not granting the Evans’ motion for new trial

pursuant to Civil Rule 59(A)(6). Accordingly, the Evans’ second assignment of error is

sustained in part.

I.

{¶38} The Evans’ argue in their first assignment of error that the trial court erred

in denying their motion for directed verdict. Our standard of review for the grant or denial

of a motion for a directed verdict is whether there is probative evidence which, if believed,

would permit reasonable minds to come to different conclusions as to the essential

elements of the case, construing the evidence most strongly in favor of the non-movant.

Sanek v. Duracote Corp., 43 Ohio St.3d 169, 539 N.E.2d 1114 (1989). A motion for a

directed verdict therefore presents a question of law, and an appellate court conducts a

de novo review of the lower court’s judgment. Shadle v. Morris, 5th Dist. Stark No.

2012CA00073, 2013-Ohio-906.

{¶39} During the trial, counsel for the Evans’ made an oral motion for directed

verdict on proximate cause. When asked by the trial court whether counsel meant

proximate cause on just the items Steiman testified were necessitated by the crash,

counsel for the Evans’ stated he sought to completely remove the issue of proximate

cause from the jury and submit to them only the issue of damages. While the testimony

of Steiman and thus the uncontroverted evidence is that one specific injury and three

dates of medical treatment were necessitated by the crash, Steiman’s testimony also

provides that many of Michelle’s injuries and a large majority of the medical treatment in

Richland County, Case No. 17CA61 16

this case was not proximately caused by the accident. Thus, the jury could find that at

least some of Michelle’s injuries were not proximately caused by the accident.

Accordingly, we find the trial court did not err in denying the Evans’ motion for directed

verdict.

{¶40} The Evans’ first assignment of error is overruled.

{¶41} Based on the foregoing, the Evans’ first assignment of error is overruled.

The Evans’ second assignment of error is sustained in part and overruled in part. The

matter is reversed and remanded to the trial court for a new trial pursuant to Civil Rule

59(A)(6).

By Gwin, P.J.,

Delaney, J., and

Wise, Earle, J., concur