The opinion
Piper, Judge,
concurring in part and dissenting in part.
{¶ 23} I concur in the majority’s decision to reverse the decision of the trial court as it pertains to Ed’s Tree & Turf because there is a genuine issue of material fact regarding Funk’s status as either an employee or an independent contractor. However, I respectfully dissent from that portion of the opinion reversing the trial court’s granting of summary judgment as to punitive damages *808 pertaining to Funk. When examining the evidence in the light most favorable to Touhey, reasonable minds can come to only one conclusion as it relates to punitive damages, which requires us to affirm the trial court’s decision.
{¶ 24} The majority opinion correctly points out that punitive damages are recoverable in actions involving actual malice. The majority cites Preston v. Murty (1987), 32 Ohio St.3d 334 , 512 N.E.2d 1174 , paragraph one of the syllabus, for the proposition that actual malice means “a conscious disregard for the rights and safety of other persons that has a great probability of causing substantial harm.” Since Preston , the Ohio Supreme Court has elaborated on the degree of proof necessary to demonstrate conscious disregard for the rights and safety of others.
{¶ 25} In Calmes v. Goodyear Tire & Rubber Co. (1991), 61 Ohio St.3d 470, 473 , 575 N.E.2d 416 , quoting Preston at 335 , the court reiterated its holding in Preston and explained that “punitive damages are intended to punish and deter conduct resulting from a mental state so callous in its disregard for the rights and safety of others that society deems it intolerable. This mental state is the component of the standard contained in the phrase ‘conscious disregard for the rights and safety of other persons.’ ” The Calmes court articulated that “misconduct greater than mere negligence is required. This component is expressed in the language ‘great probability of causing substantial harm.’” Id., quoting Preston at 335-336 .
{¶ 26} The supreme court later stated that “actual malice requires consciousness of the near certainty (or otherwise stated ‘great probability’) that substantial harm will be caused by the tortious behavior. Any less callous mental state is insufficient to incur that level of societal outrage necessary to justify an award of punitive damages. Therefore, it is evident that a reckless actor, who only has knowledge of the mere possibility that his or her actions may result in substantial harm, is not behaving maliciously.” Motorists Mut. Ins. Co. v. Said (1992), 63 Ohio St.3d 690, 698 , 590 N.E.2d 1228 , overruled on other grounds (1994), 71 Ohio St.3d 552 , 644 N.E.2d 397 .
{¶ 27} In support of punitive damages, the majority opinion focuses upon Funk’s feeling uncomfortable and unqualified to drive the truck, the weight of the vehicles involved, and the possibility that the trailer brake lines were not operating. Apparently, neither the trial court nor the parties treated the brake lines as a genuine issue or a material fact because Touhey did not raise the brake issue in her memorandum in opposition to Funk’s motion for summary judgment, and the trial court did not address the brakes in its decision and entry. A de novo review should apply the evidence to the issues presented to the trial court. See Wall v. Sprague, Clermont App. No. CA2007-05-065, 2008-Ohio-3384 , 2008 WL 2635528 , ¶ 20 (noting that “appellate courts do not consider arguments raised *809 by parties for the first time on appeal. * * * ‘Despite the fact that appellate courts review summary judgment decisions de novo, the parties are not given a second chance to raise arguments that they should have raised below’ ”). These items, in the totality of all the other circumstances, clearly do not rise to the level of a conscious disregard of the near certainty or great probability of substantial harm as discussed in Calmes .
{¶ 28} According to Funk’s deposition testimony, Funk did not desire to drive the truck that day but, to the contrary, was reluctant, only to be pressured into driving by Crabtree because his back hurt. Funk’s testimony indicated that he was friends with Crabtree (the man who helped him secure employment) and would help him when Crabtree “needed help.” Funk clearly testified that on the day of the accident, Crabtree asked him to drive because he was suffering from back pain. When Funk expressed his hesitancy to drive, Crabtree “basically forced” him to drive. Opposite the majority’s suggestion of a material fact regarding the probability of contemplated harm, it would appear Funk believed it imprudent to allow one concerned or distracted with pain to drive.
{¶ 29} Funk’s acquiescence to Crabtree’s persistence may arguably establish Funk’s negligence, but that, along with the other factors referenced by the majority, does not establish a callous act in disregard for the rights and safety of others. It would be a departure from previously pronounced definitions as applied to factual circumstances to say that the legal standards involved here would embrace punitive damages.
{¶ 30} Regarding the brake lines, the majority relies upon the idea that the accident was caused by an issue with the trailer’s brakes. The record, however, does not establish the reason for the accident. Neither party submits any evidence that nonfunctioning trailer brakes were the cause of the collision. There was no evidence or argument before the trial court that the unloaded trailer was required by law or practicality to have an independent braking system. Furthermore, the majority discusses cut wires as though they were severed, when that was not established before the trial court.
{¶ 31} Funk testified that he had been driving without any trouble for approximately 20 minutes when he came around a corner, saw stopped traffic, and abruptly “put on the brakes.” At that point, the trailer “pushed the truck, and the trailer went left of center and [Touhey] sideswiped the trailer.”
{¶ 32} A review of Funk’s other testimony demonstrates that he is testifying to possibilities and probabilities through leading questions that are permeated with uncertainty and conjecture. In testifying to the details of the accident, the following exchange occurred.
{¶ 33} “[Q] Do you know what—is that trailer equipped with electric brake [sic], probably?
*810 {¶ 34} “[A] Probably, yeah, but the truck wasn’t hooked up for electric brakes for it.
{¶ 35} “[Q] Pardon me?
{¶ 36} “[A] We had it hooked up, but that truck, I don’t think it was for electric brakes.
{¶ 37} “[Q] So when you hooked up that trailer to the truck, the only—you put, obviously, the receptacle, there was plug for the lights, right? Yes?
{¶ 38} “[A] Right.
{¶ 39} “[Q] And you don’t believe that that trailer was equipped with electric brakes?
{¶ 40} “[A] No, not unless—the wires got cut somehow, either through the job site or something like that, you know.”
{¶ 41} When asked what his response was to the possibility of cut wires, Funk responded that he mentioned it to Crabtree, and the more qualified and experienced Crabtree stated that they would be all right. Although Funk testified that the lines were possibly cut, he did not testify to what degree they were cut. Because the record does not indicate to what degree the lines were cut, or if they were cut, that can have little significance in forming a conscious disregard with a great probability or near certainty of harm.
{¶ 42} Were I to assume that the brake line to the trailer was in fact somehow severely cut, Funk’s testimony establishes that he expressed his safety concerns, and that he was told by Crabtree that the lines would be all right. Funk testified that before the accident occurred, he knew that Crabtree had experience driving trucks and hauling heavy equipment, and that he understood that Crabtree held a commercial drivers’ license “CDL” license. 1 I am reluctant to join the majority in holding that when a person inquires about a safety issue and receives assurances from one believed to be more qualified and experienced, such action indicates consciousness of the near certainty (or otherwise stated “great probability”) that substantial harm will be caused by the tortious behavior of operating the equipment in question. The failure to perceive the danger of a situation is vastly different than a conscious, more deliberate, disregard of substantial harm. Focusing on facts that are relative to causation is not material to the “consciousness” of any disregard for the great probability of substantial harm.
*811 {¶ 43} Even if I were to accept the majority’s analysis that Funk should not have driven a truck of that size without the proper licensure, 2 and that the trailer’s brakes were not operating, I would characterize Funk’s actions as far below the malicious standard required for punitive damages. At best, it appears that Funk considered that his actions could result in a mishap, evidenced by his reluctance to drive. It is clear that Funk did not consider the possibility of harm so probable that it prevented him from eventually agreeing to relieve Crabtree in driving. However, a person “who only has knowledge of the mere possibility that his or her actions may result in substantial harm, is not behaving maliciously.” Motorists Mut. Ins. Co. v. Said (1992), 63 Ohio St.3d 690, 698 , 590 N.E.2d 1228 .
{¶ 44} Nowhere in Funk’s testimony did he state that he was aware of the weight of the truck or trailer, and I would note that Funk’s testimony merely establishes possibilities that either the trailer did not have independent brakes (because the truck itself was not designed to accommodate them), or that the brake lines or wires were cut to some unknown degree. Even reviewing these facts in a light most favorable to Touhey, I do not find either fact dispositive of Funk’s alleged conscious disregard for the safety of others. While several factors might be combined to establish Funk’s negligence, there is no conduct constituting misconduct greater than mere negligence.
{¶ 45} Funk testified that once he came around the corner, he saw traffic stopped in front of him. Funk stated that at the time he applied the brakes, he was only ten feet away from the stopped ears and therefore had to “put the brakes on pretty abruptly.” Given the force of the stop and Funk’s position coming around the corner, it is day-to-day knowledge that would have us conclude that centrifugal force caused the forward movement of the trailer to swing out from behind the truck once Funk suddenly applied the brakes. There is no evidence in the record other than speculation as to what mechanically, if anything, caused the collision, and we must be cautious in extrapolating facts from vague, undeveloped testimony, particularly when considering damages designed to punish egregiously intolerable conduct. 3
*812 {¶ 46} I would affirm the trial court’s decision, and I agree with its conclusion that “it is clear from the undisputed facts that Plaintiffs cannot prove by clear and convincing evidence that Defendant Rudy Funk possessed consciousness of the near certainty that substantial harm would be caused by his behavior.” While Funk’s actions may have constituted negligence, Ohio law is clear that misconduct greater than mere negligence is required in order to recover punitive damages. The issue of punitive damages as to Ed’s Tree & Turf remains to be decided.
{¶ 47} In forcing this issue to be decided by a jury when no genuine issue of material fact was previously presented to the trial court, the purpose of Civ.R. 56 is rendered meaningless. I would affirm the decision of the trial court granting partial summary judgment to Funk regarding the punitive-damages issue. I therefore am compelled to concur in part and dissent in part.
. According to Crabtree's deposition, he held a chauffeur's license, which he considered a commercial license. He also testified that he never applied for an additional CDL license because the department of motor vehicles told him he did not need a CDL to haul agricultural products such as the sod that Ed's Tree & Turf installed for its customers. Regardless of whether Crabtree actually held a CDL, Funk’s testimony is clear in that he believed Crabtree was experienced in driving large vehicles and held a CDL.
. According to Ross’s deposition, he believed that department of motor vehicles standards did not require his drivers to hold a CDL license because their trucks were used to haul agricultural products. He later testified that he believed that any employee he hired would be exempt from having a CDL, "as long as he had a valid driver’s license.” Ross also testified that on several occasions when his employees were cited for not having a CDL license, he provided documentation to the court that his employees were exempt due to the agricultural nature of their business and as a result, the citations were nullified.
. Funk’s vague, speculative, and inconsistent testimony appears to be nothing more than someone attempting to deflect responsibility with after-the-fact explanations not founded in established facts. This does little to unveil a "conscious disregard” prior to the collision.