Brown v. Kozak

[Cite as Brown v. Kozak, 2024-Ohio-670.]

IN THE COURT OF APPEALS OF OHIO

SEVENTH APPELLATE DISTRICT

MAHONING COUNTY

MELANIE A. BROWN,

Plaintiff-Appellant,

v.

ROBERT C. KOZAK,

Defendant,

and

OHIO MUTUAL INSURANCE COMPANY,

Defendant-Appellee.

OPINION AND JUDGMENT ENTRY

Case No. 23 MA 0022

Civil Appeal from the

Court of Common Pleas of Mahoning County, Ohio

Case No. 2019 CV 1914

BEFORE:

Mark A. Hanni, Cheryl L. Waite, Judges,

William A. Klatt, Retired Judge of the Tenth District Court of Appeals,

Sitting by Assignment.

JUDGMENT:

Reversed and Remanded.

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Atty. Irene K. Makridis and Atty. Dimitrios N. Makridis, for Plaintiff-Appellant and

Atty. Craig G. Pelini and Atty. Gianna M. Calzola, Pelini, Campbell & Ricard LLC, for

Defendant-Appellee.

Dated: February 21, 2024

HANNI, J.

{¶1} Plaintiff-Appellant, Melanie A. Brown, appeals from a Mahoning County

Common Pleas Court judgment on the jury verdict in favor of Defendant-Appellee, Ohio

Mutual Insurance Company (Ohio Mutual), on Brown’s uninsured motorist claim.

{¶2} On September 2, 2017, Brown was injured in a motor vehicle accident when

the vehicle Robert C. Kozak was driving struck the side of her car. It was eventually

alleged that Kozak swerved into Brown’s lane of travel when an unknown vehicle failed

to yield to Kozak’s right-of-way, which caused Kozak to take evasive action to the left and

into Brown’s lane.

{¶3} Brown filed a complaint against Kozak on September 19, 2019, for personal

injury resulting from the accident. Kozak answered asserting, among other defenses,

that the statute of limitations had expired on any claim against him. On February 4, 2020,

Kozak filed a motion for summary judgment on this basis.

{¶4} On March 5, 2020, Brown filed a motion for leave to file an amended

complaint to reflect facts she discovered during Kozak’s March 2, 2020 deposition. The

motion stated that Brown learned the accident was caused by an unknown driver who cut

Kozak off and forced him to travel left of center and strike Brown’s car. It further stated

that these newly discovered facts gave rise to a declaratory judgment action against Ohio

Mutual, Brown’s insurer, under the uninsured motorist provision of her policy. The trial

court granted Brown’s motion, allowing her amended complaint to include “Doe I”, “Doe

II”, and Ohio Mutual as defendants.

{¶5} On September 11, 2020, the trial court granted Kozak’s motion for summary

judgment based on the statute of limitations. Thus, the case proceeded only against Ohio

Mutual and Doe.

Case No. 23 MA 0022

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{¶6} Ohio Mutual then filed a motion for summary judgment. The trial court

granted the motion in part and denied it in part. The court found that as to Kozak, Brown

had prejudiced Ohio Mutual’s subrogation rights by filing her action after the statute of

limitations expired. The court further found that there was a genuine issue of material

fact as to the identity of the John Doe driver and, therefore, there was no prejudice against

Ohio Mutual because Ohio Mutual could not subrogate against the unknown driver.

{¶7} The matter proceeded to a jury trial on January 3, 2023. Just prior to trial,

Ohio Mutual admitted that Brown was not at fault at all for the accident. Up until this point,

Ohio Mutual had alleged that Brown was comparatively negligent. The main issue at trial

then was whether Kozak, John Doe, or some combination of the two of them were at fault

in causing the accident. If Kozak was at fault, Brown could not recover against Ohio

Mutual. If John Doe was at fault, Brown could recover under the uninsured motorist

provision of her policy.

{¶8} The jury returned a verdict in favor of Ohio Mutual. In reaching their verdict,

the jury answered several interrogatories, as follows:

1. Was Defendant John Doe, the unidentified driver, negligent?

The jury answered “yes.”

2. Was the negligence, if any, of Defendant John Doe, the unidentified

driver, a direct and proximate cause of injury to Plaintiff?

The jury answered “no.”

3. Was Robert Kozak, the other driver who is not a party to this action,

negligent?

The jury answered “yes.”

4. Was the negligence, if any, of Robert Kozak, the other driver who is

not a party to this action, a direct and proximate cause of the injury

to the Plaintiff?

The jury answered “yes.”

Case No. 23 MA 0022

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5. What percentage of negligence do you assign to Defendant John

Doe, the unidentified driver, and to Robert Kozak, the other driver,

as it relates to the whole sum of damages, if any, sustained by the

Plaintiff, Melanie Brown?

To the fifth interrogatory, the jury assigned 20% of the negligence to John Doe and 80%

of the negligence to Kozak.

{¶9} The interrogatories then stated: “(If you find that the negligence attributable

to Robert Kozak was greater than 50%, your deliberations are complete, and you should

fill out the verdict form for the Defendant. If you find that the negligence attributable to

the Defendant, John Doe, was greater than 50% you shall proceed to the next question.)”

The next/sixth interrogatory asked for the total amount of the compensatory damages

recoverable by Brown. Because the jury found that the negligence attributable to Kozak

was greater than 50%, they concluded their deliberations and did not consider the sixth

interrogatory.

{¶10} Brown filed a timely notice of appeal on February 13, 2023. She now raises

four assignments of error for our review.

{¶11} At the outset, we note that Brown’s counsel failed to object to any of the

alleged errors with the jury instructions/interrogatories that she now takes issue with on

appeal. Thus, we must review each of the assignments of error under the plain error

standard of review.

{¶12} Plain error occurs only when “there is an obvious deviation from a legal rule

that affected the defendant's substantial rights by influencing the outcome of the

proceedings.” In re A.D., 7th Dist. Jefferson Nos. 22 JE 0016, 22 JE 0017, 2023-Ohio-

276, ¶ 55, quoting In re T.J.W., 7th Dist. Jefferson Nos. 13 JE 12, 13 JE 13, 13 JE 14,

2014-Ohio-4419. “[T]he fundamental rule is that an appellate court will not consider any

error which could have been brought to the trial court's attention.” Schade v. Carnegie

Body Co., 70 Ohio St.2d 207, 210, 436 N.E.2d 1001 (1982). “In appeals of civil cases,

the plain error doctrine is not favored and may be applied only in the extremely rare case

involving exceptional circumstances where error, to which no objection was made at the

trial court, seriously affects the basic fairness, integrity, or public reputation of the judicial

Case No. 23 MA 0022

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process, thereby challenging the legitimacy of the underlying judicial process itself.”

Goldfuss v. Davidson, 79 Ohio St.3d 116, 122-123, 679 N.E.2d 1099 (1997).

{¶13} For ease of discussion, we will address Brown’s assignments of error out of

order.

{¶14} Brown’s third assignment of error states:

THE COURT ERRED IN FAILING TO RESUBMIT THE INTERNALLY

INCONSISTENT INTERROGATORIES TO THE JURY FOR THEIR

RECONSIDERATION AND IMPROPERLY ENTERED JUDGMENT FOR

THE DEFENSE DESPITE THEIR INCONSISTENCIES.

{¶15} In Interrogatory 2, the jury found that John Doe’s negligence was not a

proximate cause of Brown’s injuries. In Interrogatory 5, in response to the question of

what percentage of negligence do you assign to John Doe and to Kozak as it relates to

the whole sum of damages, if any, sustained by Brown, the jury apportioned 80% to Kozak

and 20% to John Doe.

{¶16} Here, Brown contends the trial court should not have accepted the jury’s

verdict due to these inconsistent interrogatory answers. Instead, she asserts the court

was required to either send the jury back for further deliberations or order a new trial.

{¶17} Pursuant to Civ.R. 49(B), when the general verdict and the answers to

interrogatories are consistent, the trial court shall enter the appropriate judgment upon

the verdict and answers. When one or more of the interrogatory answers are inconsistent

with the general verdict, the court may enter judgment in accordance with the answers,

notwithstanding the general verdict, or the court may return the jury for further

consideration of its answers and verdict or may order a new trial. Civ.R. 49(B).

{¶18} Here, the jury’s answers to the interrogatories are inconsistent with each

other and with the general verdict.

{¶19} The Ohio Supreme Court has previously recognized plain error in the case

of a jury’s inconsistent answers to interrogatories noting it was necessary “to ensure

public confidence and reliability in the judicial proceedings.” O’Connell v. Chesapeake &

Ohio R. Co., 58 Ohio St.3d 226, 229, 569 N.E.2d 889 (1991).

Case No. 23 MA 0022

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{¶20} In order to prevail on a negligence cause of action, the plaintiff must prove:

a duty owed by the defendant to the plaintiff; a breach of that duty; injury or damages;

and the existence of proximate cause between the breach and the injury or damages.

Lacy v. Wal Mart Stores, 7th Dist. Belmont No. 11 BE 32, 2012-Ohio-1690, ¶ 24, citing

Menifee v. Ohio Welding Products, Inc., 15 Ohio St.3d 75, 77, 472 N.E.2d 707 (1984).

{¶21} In this case, the jury found that John Doe was negligent (Interrogatory 1)

but that John Doe’s negligence was not a proximate cause of Brown’s injuries

(Interrogatory 2). Based on the answers to these interrogatories, John Doe would not be

liable at all to Brown.

{¶22} But to the interrogatory asking what percentage of negligence do you assign

to John Doe and to Robert Kozak, as it relates to the whole sum of damages, if any,

sustained by Brown, the jury answered:

Negligence of Defendant John Doe, the unidentified driver 20 %

Negligence of Robert Kozak, the other driver 80 %

Must Equal 100.00%

(Interrogatory 5). The jury filled in the numbers “20” and “80.” Based on the answers to

this interrogatory, John Doe would be partially liable to Brown. Thus, the interrogatory

answers are inconsistent.

{¶23} Moreover, the jury entered a general verdict for Ohio Mutual. This verdict

likewise is inconsistent with the answer to Interrogatory 5.

{¶24} In examining a similar issue, and ultimately finding plain error, the Ohio

Supreme Court stated:

First and foremost, we believe the determination of causal negligence on

the part of one party to be a precondition to apportioning comparative fault

to that party. It is illogical to require, or even allow, a juror to initially find a

defendant has not acted causally negligently, and then subsequently permit

this juror to assign some degree of fault to that same defendant. Likewise,

where a juror finds that a plaintiff has not acted in a causally negligent

manner, it is incomprehensible to then suggest that this juror may apportion

Case No. 23 MA 0022

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some degree of fault to the plaintiff and thereby diminish or destroy the

injured party's recovery.

O'Connell, 58 Ohio St.3d at 235. The Court went on to reason, “it cannot be denied that

the allocation of fault is a method through which a juror clarifies his or her finding that a

party is causally negligent for the injury sustained. As such, the allocation of fault flows

from the adjudication of negligence and proximate cause.” Id. at 236.

{¶25} In this case, the court permitted the jury to find that John Doe was not a

proximate cause of Brown’s injuries (in other words not causally negligent), yet still

apportion 20% fault to John Doe for Brown’s damages. These findings are logically

inconsistent with each other. Upon recognizing these inconsistent answers, the trial court

should have either returned the jury for further consideration of its answers and verdict or

ordered a new trial.

{¶26} The problem here is further compounded by the issue raised in Brown’s

fourth assignment of error, that the interrogatories are not signed by any of the jurors, as

will be discussed next.

{¶27} Accordingly, Brown’s third assignment of error has merit and is sustained.

{¶28} Brown’s fourth assignment of error states:

THE COURT ERRED IN ACCEPTING THE JURY’S VERDICT IN THE

ABSENCE OF SIGNED JURY INTERROGATORIES.

{¶29} When the jury returned their verdict, the court read the answers to the

interrogatories in open court. (Tr. 460-461). It noted that while the general verdict was

signed, the interrogatories were not. (Tr. 461). Given the lack of signatures, the court

asked the parties if it was necessary to poll the jury. (Tr. 461-462). Ohio Mutual’s counsel

responded “no.” (Tr. 462). Brown’s counsel did not respond.

{¶30} In her final assignment of error, Brown claims the trial court erred in

accepting the interrogatories given that none of the interrogatories were signed by any

jurors.

{¶31} Section 5, Article I of the Ohio Constitution, requires the “concurrence of not

less than three-fourths or more of the jury” for a verdict. Civ.R. 48 provides that “in all

civil actions, a jury shall render a verdict upon concurrence of three-fourths of their

Case No. 23 MA 0022

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number. The verdict shall be in writing and signed by each of the jurors concurring

therein.”

{¶32} In this case, the trial court instructed the jury: “It is necessary that at least

six of the jurors agree on the answers to the interrogatories and on the general verdict.

Those of you who agree will sign in ink the answers to the interrogatories and the general

verdict.” (Tr. 430-431). Later in the instructions the court again told the jury: “A question

[interrogatory] is answered when at least six of the jurors agree. All who agree must sign.”

(Tr. 442).

{¶33} Each of the interrogatory forms contains eight lines below the question

posed for the jurors to sign their names. The last line contains the designation

“Foreman/Forewoman”, indicating the foreperson should sign there if applicable. None

of the forms are signed by any of the jurors despite the fact that the jurors circled the

answers to each question on the forms. Six of the eight jurors (constituting the necessary

¾ majority) did sign the general verdict form.

{¶34} The jury here completely disregarded the trial court’s instructions to sign the

answers to the interrogatories. Given the fact that no jurors signed any of the

interrogatories, we cannot know how many jurors actually agreed with the answers. It

may have been all eight jurors. It may have been six out eight, as required for a ¾

majority. Or it may have only been a simple majority of five out of eight, which would not

be enough to support the answer.

{¶35} The First District Court of Appeals once stated: “The necessary number of

jurors failed to sign answers to certain interrogatories. These are, therefore, valueless

for any purpose.” Swisher v. Cleveland, C., C. & St. L. Ry. Co., 14 Ohio Law Abs. 597,

599 (1st Dist.1933). We cannot guess here how many jurors actually concurred with the

answers to the interrogatories. And given the inconsistencies discussed above with the

answers to the interrogatories and verdict form, this rises to the level of plain error.

{¶36} Clearly, Brown’s counsel should have objected to the unsigned

interrogatories and taken advantage of the opportunity to poll the jury. Likewise, counsel

should have objected to the inconsistent interrogatory answers discussed in the third

assignment of error. But in this case we cannot hold counsel’s carelessness against

Brown. This case is one of the rare cases where the errors made at trial “seriously affects

Case No. 23 MA 0022

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the basic fairness, integrity, or public reputation of the judicial process, thereby

challenging the legitimacy of the underlying judicial process itself.” Goldfuss, 79 Ohio

St.3d at 123.

{¶37} Accordingly, Brown’s fourth assignment of error has merit and is sustained.

{¶38} Given our resolution of Brown’s third and fourth assignments of error, her

first and second assignments of error are now moot.

{¶39} Brown’s first assignment of error states:

THE COURT COMMITTED ERROR IN INSTRUCTING THE JURY TO

STOP DELIBERATIONS AND RETURN A DEFENSE VERDICT UPON

FINDING DOE’S NEGLIGENCE TO BE 50 PERCENT OR LESS.

{¶40} Brown’s second assignment of error states:

THE COURT COMMITTED ERROR IN FAILING TO CORRECT THE

ORIGINAL INTERROGATORIES AND JURY INSTRUCTIONS AFTER

RECOGNIZING THEIR INCONSISTENCY WITH THE JOINT AND

SEVERAL LIABILITY STATUTE.

{¶41} For the reasons stated above, the trial court’s judgment is hereby reversed

and the matter is remanded to the trial court for further proceedings pursuant to law and

consistent with this opinion.

Waite, J., concurs.

Klatt, J., concurs.

Case No. 23 MA 0022

[Cite as Brown v. Kozak, 2024-Ohio-670.]

For the reasons stated in the Opinion rendered herein, the first and second

assignments of error are moot, the third and fourth assignments of error are sustained. It

is the final judgment and order of this Court that the judgment of the Court of Common

Pleas of Mahoning County, Ohio, is reversed. We hereby remand this matter to the trial

court for further proceedings according to law and consistent with this Court’s Opinion.

Costs to be taxed against the Appellee.

A certified copy of this opinion and judgment entry shall constitute the mandate in

this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a

certified copy be sent by the clerk to the trial court to carry this judgment into execution.

NOTICE TO COUNSEL

This document constitutes a final judgment entry.