[Cite as Cook v. Sportsman's Den, Inc., 2011-Ohio-3482.]


                                       COURT OF APPEALS
                                    RICHLAND COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

HORACE D. COOK, JR., ET AL.                                JUDGES:
                                                           Hon. William B. Hoffman, P.J.
        Plaintiffs-Appellants                              Hon. Sheila G. Farmer, J.
                                                           Hon. Julie A. Edwards, J.
-vs-
                                                           Case No. 10CA131
THE SPORTSMAN'S DEN, INC.

        Defendant-Appellee                                 OPINION




CHARACTER OF PROCEEDING:                              Appeal from the Richland County Court of
                                                      Common Pleas, Case No. 08CV2221


JUDGMENT:                                             Affirmed


DATE OF JUDGMENT ENTRY:                               July 12, 2011


APPEARANCES:


For Plaintiffs-Appellants                             For Defendant-Appellee


D. KIM MURRAY                                         MARK F. FISCHER
Brown, Bemiller, Murray, McIntyre                     Fischer, Evans & Robbins, Ltd.
& Haring, L.L.P.                                      4505 Stephen Circle, N.W. - Suite 100
24 W. Third St., Suite 206                            Canton, Ohio 44718
Mansfield, Ohio 44902
Richland County, Case No. 10CA131                                                    2

Hoffman, PJ.


       {¶1}    Plaintiffs-appellants Horace D. Cook, Jr. and Katherine A. Cook appeal

the October 26, 2010 Judgment Entry on Verdict entered by the Richland County Court

of Common Pleas, rendering judgment in favor of defendant-appellee The Sportsman’s

Den, Inc., following a jury trial.

                             STATEMENT OF THE CASE AND FACTS

       {¶2}    Appellant Horace Cook sustained severe injuries after the muzzle-loading

rifle he purchased from Appellee exploded during use. On December 10, 2008,

Appellants filed a Complaint in the Richland County Court of Common Pleas, alleging

Appellee was negligent for contemporaneously selling Horace Cook smokeless

gunpowder with the muzzle-loading rifle. Appellants asserted Appellee was aware of

the fact Horace Cook intended to use the smokeless gunpowder with the muzzle-

loading rifle and should have prevented him from making such purchase.

       {¶3}    The matter came on for jury trial on October 14, 2010. The following

evidence was adduced at trial.

       {¶4}    Horace Cook was an experienced hunter, but had limited experience in

the use of muzzle-loading rifles. On December 23, 2006, Horace Cook purchased a

muzzle-loading rifle, bullets, sabots, plastic tabs, primers, a sling, and smokeless

gunpowder from Appellee’s Shelby, Ohio sporting goods store. Horace Cook could not

recall which employee assisted him nor could he provide a description of the

salesperson.       The only identifying feature Horace Cook remembered about the

employee was that the individual was a male. According to Horace Cook, the employee

accompanied him through the store and picked out a number of accessories for the rifle.
Richland County, Case No. 10CA131                                                           3


The employee also accompanied Horace Cook to the area of the store in which

gunpowder is located. Horace Cook testified the employee either picked out the

smokeless gunpowder or observed him select the smokeless gunpowder. Thereafter,

Horace Cook took the merchandise to a cashier and made his purchase.

       {¶5}   Horace Cook reviewed the 16-page owner’s manual included with the rifle

in order to determine the proper load. He acknowledged he skipped the pages

dedicated to the safety warnings. One of the warnings clearly states never to use

smokeless gunpowder with the particular muzzle-loading rifle Horace Cook purchased.

Horace Cook additionally conceded he did not read the warning printed directly on the

rifle, which states to use only black powder or black powder replica in the rifle, or the

warning on the box of smokeless gunpowder, which states never substitute smokeless

gunpowder for black powder and never use smokeless gunpowder in muzzle-loading

firearms.

       {¶6}   During a hunting trip on December 27, 2006, Horace Cook used his new

muzzle-loading rifle for the first time. Horace Cook attempted to fire the rifle two or

three times, but the rifle would not fire. He replaced a cap and tried to fire the rifle once

again. When the rifle finally fired, it exploded, causing severe injuries to Horace Cook.

       {¶7}   Every male employee who could have been working for Appellee on

December 23, 2006, the day Horace Cook purchased the rifle and gunpowder, testified

at trial. Each employee testified regarding his employment history with Appellee, his

familiarity with muzzle-loading rifles, including the safe and proper usage of such a

firearm, and his familiarity with the rifle Horace Cook purchased.         Each employee

responded in the negative when asked if he had waited on Horace Cook on December
Richland County, Case No. 10CA131                                                        4


23, 2006. Gregg Griffeth, the owner of Appellee, also testified regarding his familiarity

with muzzle-loading rifles, including the safe and proper usage of such a firearm. One

employee noted smokeless gunpowder and black powder are kept in different sections

of the store. Griffeth indicated he would not give a customer smokeless gunpowder for

use with a muzzle-loading rifle.

       {¶8}   After hearing all the evidence and deliberating, the jury returned a

unanimous verdict in favor of Appellee. The trial court entered judgment in favor of

Appellee via Judgment Entry on Verdict filed October 26, 2010.

       {¶9}   It is from this judgment entry Appellants appeal, raising as their sole

assignment of error:

       {¶10} “I. THE JURY VERDICT UPON WHICH FINAL JUDGMENT WAS

ENTERED IN THE TRIAL COURT WAS AGAINST THE MANIFEST WEIGHT OF THE

EVIDENCE.”

       {¶11} Herein Appellants argue the evidence at trial amply demonstrated Horace

Cook was a rookie with respect to muzzle-loading rifles, and Appellee owed him a duty

to ensure he purchased the appropriate gunpowder for the firearm.

       {¶12} In a civil action, an appellate court may not find the judgment to be against

the manifest weight of the evidence if such judgment is supported by competent,

credible evidence. C.E. Morris, Co. v. Foley Construction Co. (1978), 54 Ohio St.2d

279; Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77. In determining whether a

jury's verdict is contrary to the manifest weight of the evidence, an appellate court does,

to a limited extent, weigh the evidence and consider the credibility of the witnesses in

order to insure against a miscarriage of justice, keeping in mind, however, that those
Richland County, Case No. 10CA131                                                           5


matters are primarily for the trier of the facts to decide in either a civil or criminal case.

See, State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus.

       {¶13} “The discretionary power to grant a new trial should be exercised only in

the exceptional case in which the evidence weighs heavily against the conviction.” State

v. Thompkins (1997), 78 Ohio St.3d 380, 387 (Citations omitted). Accordingly, before an

appellate court will reverse a judgment as against the manifest weight of the evidence in

a civil context, the court must determine whether the trier of fact, in resolving evidentiary

conflicts and making credibility determinations, clearly lost its way and created a

manifest miscarriage of justice. Gonzalez v. Henceroth Enterprises, Inc., (1999), 135

Ohio App.3d 646.

       {¶14} As set forth supra, every one of Appellee’s male employees who could

have been working on December 23, 2006, as well as Appellee’s owner, testified he did

not wait on Horace Cook nor would he have allowed smokeless gunpowder to be sold

to a customer for use in a muzzle-loading rifle.          This evidence alone constitutes

competent, credible evidence which supports the jury’s verdict. As the trier of fact, the

jury was free to accept or reject any or all of the testimony of the witnesses. The jury

clearly did not believe Horace Cook’s testimony he received assistance in selecting the

correct gunpowder for the rifle he intended to purchase. We cannot say the jury’s

verdict was against the manifest weight of the evidence.

       {¶15} Appellants’ sole assignment of error is overruled.
Richland County, Case No. 10CA131                                                6


      {¶16} The judgment of the Richland County Court of Common Pleas is affirmed.

By: Hoffman, PJ.

Farmer, J. and

Edwards, J. concur

                                         s/ William B. Hoffman _________________
                                         HON. WILLIAM B. HOFFMAN


                                         s/ Sheila G. Farmer __________________
                                         HON. SHEILA G. FARMER


                                         s/ Julie A. Edwards___________________
                                         HON. JULIE A. EDWARDS
Richland County, Case No. 10CA131                                                  7


           IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT


HORACE D. COOK, JR., ET AL.               :
                                          :
       Plaintiffs-Appellants              :
                                          :
-vs-                                      :        JUDGMENT ENTRY
                                          :
THE SPORTSMAN'S DEN, INC.                 :
                                          :
       Defendant-Appellee                 :        Case No. 10CA131



       For the reasons stated in our accompanying Opinion, the judgment of the

Richland County Court of Common Pleas is affirmed. Costs assessed to Appellants.




                                          s/ William B. Hoffman _________________
                                          HON. WILLIAM B. HOFFMAN


                                          s/ Sheila G. Farmer __________________
                                          HON. SHEILA G. FARMER


                                          s/ Julie A. Edwards___________________
                                          HON. JULIE A. EDWARDS
