[Cite as Tyrrell v. Conrad Botzum Farmstead, 2019-Ohio-1874.]


STATE OF OHIO                   )                        IN THE COURT OF APPEALS
                                )ss:                     NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                )

DANIELLE TYRRELL                                         C.A. No.   29063

        Appellee

        v.                                               APPEAL FROM JUDGMENT
                                                         ENTERED IN THE
THE CONRAD BOTZUM FARMSTEAD                              COURT OF COMMON PLEAS
                                                         COUNTY OF SUMMIT, OHIO
        Appellant                                        CASE No.   CV-2016-06-2561

                                DECISION AND JOURNAL ENTRY

Dated: May 15, 2019



        CARR, Judge.

        {¶1}    Defendant-Appellant The Conrad Botzum Farmstead (“Conrad Botzum”) appeals

the judgments of the Summit County Court of Common Pleas. This Court reverses and remands

the matter for proceedings consistent with this opinion.

                                                    I.

        {¶2}    In 1998, George Winkelmann and his wife began leasing property from the

National Park Service; that property is known as the Conrad Botzum Farmstead (“the property”)

and is located within the Cuyahoga Valley National Recreation Area.           Public events and

weddings are held at the property.

        {¶3}    On October 24, 2015, Plaintiff-Appellee Danielle Tyrrell1 and her boyfriend

attended a wedding reception at the property. Ms. Tyrrell wore high heels to the ceremony but



        1
          Ms. Tyrrell’s last name appears in the record as “Tyrrell” and “Tyrell.” It is unclear
which spelling is correct. For sake of consistency, this Court will use the spelling in the trial
court’s judgment entry: Tyrrell.
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knew that the reception was being held at a barn and so changed into cowboy boots before going

to the reception in order to be more comfortable. She and her boyfriend arrived at the property

around 5:00 p.m. or 5:30 p.m. When they arrived, the weather was “gloomy” but it was not

raining at the time. It was still daylight.

        {¶4}    At the time Ms. Tyrrell and her boyfriend arrived, probably about 100 people

were there and most of them were on the deck. On the deck there was a bar on the left and

appetizer tables set up in the middle under an awning. While Ms. Tyrrell went up on the deck,

she did not stay there as it was crowded. Instead, she went down to the fire pit. Ms. Tyrrell had

two alcoholic drinks prior to dinner. She denied having any other alcoholic beverages that night.

        {¶5}    Dinner was held in the barn, but the guests had to go out to the deck to get food

from the buffet line. After dinner, the tables were removed from the deck and the deck was used

for dancing. The deck was then lit by string lights. The deck itself was wood and was

constructed in a parquet style with a checkerboard pattern. During the evening it rained on and

off with “heavy downpours.”

        {¶6}    By the time the dancing started it was dark and Ms. Tyrrell was not able to see the

deck floor very well. Ten to fifteen minutes after Ms. Tyrrell began dancing, she “fell down[

and] broke [her] ankle.” Her “foot must have hit something and [her] ankle folded in half[.]”

Ms. Tyrrell fell near one of the posts on the deck. At the time she fell, it was not raining, but the

deck boards were wet. After she fell, she looked around and noticed that the deck was “uneven.”

        {¶7}    Ms. Tyrrell was transported to the emergency room and ultimately had to have

surgery to repair her ankle. The triage notes from the emergency room reflect that Ms. Tyrrell

was “severely intoxicated” when she arrived there.
                                                3


       {¶8}    In June 2016, Ms. Tyrrell filed a complaint against Conrad Botzum and John

Does 1-10.    Ms. Tyrrell alleged that she tripped and fell due to improper maintenance and/or

construction of the deck floor and that Conrad Botzum was negligent in maintaining the

property. Subsequently, Conrad Botzum moved for summary judgment. After briefing, the

motion was denied.

       {¶9}    The matter proceeded to a jury trial. Prior to the start of trial, the trial court

concluded that neither Conrad Botzum’s expert nor Ms. Tyrrell’s expert could opine as to what

caused Ms. Tyrrell’s fall. At the close of Ms. Tyrrell’s case, Conrad Botzum moved for a

directed verdict and renewed its motion for summary judgment. After the close of all of the

evidence, Conrad Botzum renewed its motions.

       {¶10} The jury found in favor in Ms. Tyrrell. In so doing, it specifically concluded that

Conrad Botzum was negligent and that its negligence was a direct and proximate cause of Ms.

Tyrrell’s injuries. The jury found Conrad Botzum 51% at fault and Ms. Tyrrell 49% at fault.

The jury awarded a total of $57,345.50 in compensatory damages. On December 27, 2017, the

trial court issued a judgment entry awarding Ms. Tyrrell $57,350.55 in damages. On January 19,

2018, the trial court issued a nunc pro tunc entry to correct the award amount to $29,248.78

based upon the jury’s fault determination.

       {¶11} Ms. Tyrrell filed a motion for prejudgment interest and costs and Conrad Botzum

filed a motion for new trial, remittitur, and for judgment notwithstanding the verdict. A hearing

was held on the motions, at which time the trial court indicated that it would deny the motion for

prejudgment interest, but would “apportion costs against the defendant.” In addition, the trial

court denied Conrad Botzum’s motions. Subsequently, the trial court issued a judgment entry
                                                 4


addressing those motions. However, the trial court’s entry indicated that “Plaintiff’s Motion for

Prejudgment Interest and Costs is not well-taken and shall be DENIED.” (Emphasis in original.)

       {¶12} Thereafter, Conrad Botzum filed a notice of appeal and has raised three

assignments of error for our review. Subsequently, Conrad Botzum brought it to this Court’s

attention that the trial court, sua sponte, several months later, on January 18, 2019, issued an

entry stating that “[c]osts of this action are hereby assessed to Defendant.” Conrad Botzum filed

a motion with this Court to supplement the appeal with the trial court’s entry and to strike it

because the trial court lacked jurisdiction to enter the order. See Civ.R. 60(A). Ms. Tyrrell has

conceded such an entry was issued.

       {¶13} This Court declines to supplement the appeal with the entry, as, in light of this

Court’s disposition of the appeal, the issue is moot.

                                                 II.

                                 ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED IN DENYING THE CONRAD BOTZUM
       FARMSTEAD’S MOTION FOR SUMMARY JUDGMENT, DIRECTED
       VERDICT AND JNOV.

       {¶14} Conrad Botzum argues in its first assignment of error that the trial court erred in

denying its motions for summary judgment, directed verdict, and motion for judgment

notwithstanding the verdict. As we conclude that Conrad Botzum’s argument concerning the

motion for judgment notwithstanding the verdict is dispositive of this appeal, we will begin our

discussion with it.

       {¶15} Inter alia, Conrad Botzum argued below, and on appeal, that it was entitled to

judgment notwithstanding the verdict because Ms. Tyrrell failed to demonstrate at trial that

Conrad Botzum’s negligence was the proximate cause of her fall and injuries. Because we agree
                                                5


that the trial testimony does not provide sufficient evidence as to what caused Ms. Tyrrell’s fall

we agree.

       {¶16} After a court enters judgment on a jury’s verdict, a party may file a motion for

judgment notwithstanding the verdict to have the judgment set aside on grounds other than

weight of the evidence. See Civ.R. 50(B). “J[udgment notwithstanding the verdict] is proper if

upon viewing the evidence in a light most favorable to the non-moving party and presuming any

doubt to favor the non[-]moving party reasonable minds could come to but one conclusion, that

being in favor of the moving party.” McMichael v. Akron Gen. Med. Ctr., 9th Dist. Summit No.

28333, 2017-Ohio-7594, ¶ 10, quoting Williams v. Spitzer Auto World, Inc., 9th Dist. Lorain No.

07CA009098, 2008-Ohio-1467, ¶ 9. “If reasonable minds could reach different conclusions, the

motion must be denied.” McMichael at ¶ 10, quoting Magnum Steel & Trading, L.L.C. v. Mink,

9th Dist. Summit Nos. 26127, 26231, 2013-Ohio-2431, ¶ 12. “A de novo standard of review

applies to a trial court’s decision to grant or deny a motion for [judgment notwithstanding the

verdict].” McMichael at ¶ 10.

       {¶17} “To prevail on a claim of negligence, a plaintiff must establish the existence of a

duty, a breach of that duty, and an injury proximately resulting from the breach of duty.”

(Internal quotations and citation omitted.) Baker v. Bob Evans Farms, Inc., 9th Dist. Wayne No.

13CA0023, 2014-Ohio-2850, ¶ 10.         In the context of summary judgment, this Court has

concluded that “[t]he mere fact that damage occurred [is] not, in and of itself, proof of

negligence.” (Internal quotations and citation omitted.) Williams v. Portage Country Club Co.,

9th Dist. Summit No. 28445, 2017-Ohio-8986, ¶ 14. “[I]f the plaintiff’s evidence on the issue

of proximate cause is so meager and inconclusive that a finding of proximate cause would rest

solely on speculation and conjecture, the defendant is entitled to judgment as a matter of law.”
                                                   6


Id., quoting Thewlis v. Munyon, 9th Dist. Medina No. 2262-M, 1994 WL 57787, *4 (Feb. 16,

1994).

         {¶18} As noted above, neither expert was permitted to testify as to the cause of Ms.

Tyrrell’s fall. While there is much discussion in the trial testimony about the location of the fall,

the characteristics of the deck boards, the lighting, the weather, and the number of people, there

is little discussion about the cause of Ms. Tyrrell’s fall.

         {¶19} Ms. Tyrrell’s own testimony does not provide evidence of what caused her fall.

When asked about the fall, Ms. Tyrrell testified that, “[she] was dancing, like [she] always

do[es,] and [her] foot must have hit something and [her] ankle folded in half[.]” She indicated

that she fell backwards and fell near one of the poles. When asked whether she had noticed any

of the boards before she fell, Ms. Tyrrell averred that she “wasn’t really paying attention to the

deck” but did notice that it “was parquet style.” After she fell, Ms. Tyrrell indicated that she

noticed that the deck was “uneven.” She maintained that she found herself sitting on top of the

uneven boards after she fell. Ms. Tyrrell was asked whether her cowboy boot caught on

anything when she fell and she replied that she did not “know if it caught on anything.

Maybe[.]” Yet, Ms. Tyrrell never identified what it was that she believed her foot hit or caught

on that caused her to fall.

         {¶20} Another wedding guest who did not know Ms. Tyrrell prior to the wedding also

testified via video deposition at trial. The guest saw Ms. Tyrrell fall, however, he denied seeing

her feet or knees as she fell. He testified that he “just saw her drop down.” When asked if he

knew what caused Ms. Tyrrell to fall, the guest stated that “[he] couldn’t say for certain.” The

guest was then asked whether he observed anything around where Ms. Tyrrell fell that would

cause him to be concerned. The guest replied that “the deck was uneven.” The guest explained
                                                7


that he meant there were “[d]ifferences in the elevation of the – it was kind of like a parquet

deck.” The guest was then asked if he believed that the different heights of the boards caused

Ms. Tyrrell to fall. The guest nodded affirmatively and responded, “[m]ost likely.”

       {¶21} Finally, there was testimony from the bride that addressed causation. The bride

also did not see Ms. Tyrrell’s foot come down as she fell but did notice when she fell. She

testified that she assumed that Ms. Tyrrell’s chosen footwear caused her to fall. The bride stated

that she noticed that Ms. Tyrrell had cowboy boots on and the bride knew that “cowboy boots

with a wooden heel [are] slippery on any kind of surface[.]”

       {¶22} Here, Ms. Tyrrell never identified at trial what she believed caused her fall.

Further, we conclude that the wedding guest’s testimony as to causation was based on

speculation, as was the bride’s. Neither the guest nor the bride saw Ms. Tyrrell’s feet as she was

falling and the guest did not even answer “yes” when asked if he believed that the different

heights of the boards caused the fall; instead he responded, “[m]ost likely.” While both the guest

and the bride saw Ms. Tyrrell fall, neither of them saw what caused her to fall. Instead, their

testimony offered theories as to what may have happened.

       {¶23} Accordingly, even assuming that the trial record supported that Conrad Botzum

breached a duty of care, there was insufficient evidence to establish that any breach caused Ms.

Tyrrell’s fall. See Williams, 2017-Ohio-8986, at ¶ 14. Therefore, the trial court erred in failing

to grant Conrad Botzum’s motion for judgment notwithstanding the verdict. In light of this

conclusion, the Court declines to address Conrad Botzum’s remaining arguments in this

assignment of error as they have been rendered moot. Conrad Botzum’s first assignment of error

is sustained to the extent it argues that the trial court erred in denying its motion for judgment

notwithstanding the verdict.
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                                 ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERRED IN DENYING THE CONRAD BOTZUM
       FARMSTEAD’S MOTION FOR NEW TRIAL.

                                 ASSIGNMENT OF ERROR III

       THE TRIAL COURT ERRED IN GIVING IMPROPER                                        JURY
       INSTRUCTIONS, INTERROGATORIES, AND VERDICT FORMS.

       {¶24} Conrad Botzum argues in its second assignment of error that the trial court erred

in denying its motion for a new trial. It argues in its third assignment of error that the trial court

erred in giving improper jury instructions, interrogatories, and verdict forms. In light of this

Court’s resolution of the first assignment of error, these assignments of error have been rendered

moot and we decline to address them.

                                                 III.

       {¶25} Conrad Botzum’s first assignment of error is sustained to the extent that it argues

that the trial court erred in failing to grant its motion for judgment notwithstanding the verdict.

Conrad Botzum’s remaining assignments of error are moot. The judgment of the Summit

County Court of Common Pleas is reversed and the matter is remanded for proceedings

consistent with this decision.

                                                                                 Judgment reversed,
                                                                                and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.
                                                9


       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellee.




                                                    DONNA J. CARR
                                                    FOR THE COURT



TEODOSIO, P. J.
HENSAL, J.
CONCUR.


APPEARANCES:

JAMES J. REAGAN, Attorney at Law, for Appellant.

BRIAN R. HERBERTH and JOYCE CHAMBERS REICHARD, Attorneys at Law, for
Appellee.
