[Cite as Ward v. Govt. Emps. Ins. Co., 2012-Ohio-2970.]




        IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

KRISTINE J. WARD                                          :

        Plaintiff-Appellant                               :            C.A. CASE NO.    24884

v.                                                        :            T.C. NO.   10CV5360

GOVERNMENT EMPLOYEES                                      :            (Civil appeal from
INSURANCE CO., et al.                                                   Common Pleas Court)

        Defendant-Appellee                                :

                                                          :

                                             ..........

                                            OPINION

                         Rendered on the        29th          day of       June      , 2012.

                                             ..........

JEFFREY W. SNEAD, Atty. Reg. No. 0063416, 130 W. Second Street, Suite 1508, Dayton,
Ohio 45402
      Attorney for Plaintiff-Appellant

KEVIN C. CONNELL, Atty. Reg. No. 0063817, Fifth Third Center, 1 South Main Street,
Suite 1800, Dayton, Ohio 45402
       Attorney for Defendant-Appellee Bilen Mandefro

                                             ..........

DONOVAN, J.

        {¶ 1}     This matter is before the Court on the Notice of Appeal of Kristine J. Ward,
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filed November 4, 2011. On July 8, 2008, Ward was purportedly involved in a pedestrian

accident with a vehicle driven by Bilen Mandefro. On August 2, 2011, following trial, a

jury unanimously concluded that Mandefro failed to yield the right of way and was negligent

in executing a turn. However, the jury found that her negligence was not a direct and

proximate cause of Ward’s injuries, pain, suffering and damages.

       {¶ 2}    At trial, Ward testified that on the date of the incident, she took the bus to

the library in downtown Dayton, and that as she was returning to the bus stop, carrying a bag

on her right shoulder along with several books in her left hand, she stepped, with the light,

into the crosswalk on Third Street, headed southbound, and she then felt “a hit on my right

side, upper arm. I don’t know what that is. I’m spun left, I feel a pain in my foot, I’m on

the ground and I’m very worried about being in traffic.” Ward stated that before entering

the crosswalk, she looked around to make sure it was safe to cross.   Ward testified that she

felt pain in her foot on impact. She denied that she was in a hurry, and she further denied

that she tripped and fell into the car. Ward stated that at the time she was wearing sandals

with straps that were not flip flops. When asked if she knew if her foot was run over by the

car, she responded, “I don’t know.”         Ward stated she was taken to the hospital by

ambulance. She stated that the nail on her big toe was missing, and that her foot was

fractured in three places. Ward stated that she had surgery on July 14, 2008, and that her

surgeon inserted three pins to stabilize her foot. Ward testified that she continues to

experience pain and swelling in her foot.

       {¶ 3}    On cross-examination, Ward acknowledged that the history of physical

injury contained in the emergency room records indicates as follows: “She states she was
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crossing a street, in an unknown rate of speed, the car pushed her down as it sideswiped her

large bag, which she had under her left arm,” and that “she states she was not run over” but

“pushed down violently.” Ward also acknowledged that she stated in deposition that she

did not know how she broke her foot as a result of the incident, and the following exchange

occurred:

               Q. It all happened very quickly?

               A. It did.

               Q. And so, as a result you can’t tell us how that break happened?

               A. Yes.

               Q. And what moment it happened?

               A. That’s right.

       {¶ 4}    On redirect, Ward denied breaking her foot before she was hit by the car,

and she stated that the injury resulted from the impact. She reviewed several histories given

by her, including the Dayton Fire Department EMS run report, which provides that her chief

complaint is “pain in right foot which may have been run over by the tire of a car.” She

reviewed an “ortho note” that provides that she “was clipped by a car while walking today.

She hit her foot against the ground, is now in complaint of pain in the ED department.”

Ward reviewed an “emergency department triage note” which provides that “Patient was

walking across the street and was clipped from behind by a vehicle, knocking her to the

ground.” She reviewed a “consultation with Dr. Prayson,” which provides that she

“presented to the emergency department after being struck by a car.”

       {¶ 5}    The jury also heard the testimony of Dr. Michael Prayson, perpetuated by
                                                                                              4

means of videotape. Prayson testified that he is an orthopedic surgeon, and that he treated

Ward for injuries she sustained on July 8, 2008. Prayson opined to a reasonable degree of

medical probability that Ward “did sustain injuries related to that pedestrian versus car

collision.” Specifically, Prayson testified that Ward sustained “a number of fractures through

the front and mid portion” of her right foot, and there was “an evulsion or removal of the

toenail to her great toe.” Prayson stated that she also had a “Lisfranc” injury in the arch area

of her foot. Prayson stated that he performed outpatient percutaneous surgery on Ward’s foot

under a general anesthetic, inserting three pins to stabilize Ward’s fractures.        Prayson

reviewed Ward’s medical records and stated that they were generated as a result of the

collision. Prayson indicated that the residual effects of the injury that Ward experienced,

including pain and swelling, are permanent.

       {¶ 6}      On cross-examination, Prayson stated that when forming an opinion

regarding a patient’s diagnosis, he relies on the patient’s history, which he obtains directly

from the patient and perhaps other outside sources such as paramedics, friends or relatives,

as well as a physical examination and any medical testing that is completed. The following

exchange occurred:

               Q. For example, if you’re going to diagnose simply that someone has

       a broken bone, the history about what happened is not as relevant to you.

       You can see it on the light box and see that the bone is broken and make that

       opinion.

               A. That is correct.

               Q. But when you come in and testify in court that a broken bone is
                                                                                 5

caused by something, the history component of that opinion is critical.

       A. Yes.

       Q. Because you weren’t there to see the event.

       A. Yes.

***

       Q. And it indicates * * * in the record the history that was taken by

the resident or the nurse or whoever was taking the history from her at the

time at the emergency room, that she was not run over. She was just pushed

down violently - -

       A. Yes.

       ***

       Q. So other than the history that you now see in the emergency

department, do you have any other background in terms of how this accident

happened?

       A. No. I mean, we just - - basically what’s reported to us and what

information we get from whatever source, * * * that’s what we use.

       So then there’s really not, from a medical standpoint, as you might

imagine, there’s not a reason to challenge it.

       Q. Sure.

       A. Not a reason to investigate it further, the specifics of how it

actually happened because it really doesn’t, like you said, have much bearing

on - - once we identify the injuries and what we have to do with the injuries.
                                                                                             6

               Q. Doesn’t bear on the treatment.

               A. Correct.

               Q. You just want to get her better and make sure that that fracture is

       aligned and she’s back to getting back to her life, correct?

               A. Correct.

               Q. And you give your, your patients the benefit of the doubt in that

       respect?

               A. Correct.

               Q. Do you know what kind of shoes she was wearing that day?

               A. I do not.

       {¶ 7}      The defense presented the testimony of Britt Tompkins, who witnessed the

accident from inside the library at a distance of approximately a hundred feet. He stated

that Ward was “trying to hurry up” and “[m]aking a big rush” to cross the street, and that she

“kind of like tripped over the shoe” and fell.     According to Tompkins, “it just looked like

that she kind of fell into the vehicle * * * .” Tompkins stated that he did not observe

Ward’s feet, but he “seen her fall toward the car.” Tompkins stated that Ward “kind of like

hit the front, like between the mirror and * * * like above the tire, that section there.” When

he went outside to help pick up her books, Tompkins stated that Ward’s right sandal was on

her foot but broken and “snapped backwards.” On cross-examination, Tompkins stated that

he observed the events in his peripheral vision.

       {¶ 8}      Finally, Mandefro testified that she was driving to work in a Nissan Sentra

when the accident occurred, heading southbound on Saint Clair Street. She stated that she
                                                                                            7

stopped at the light at Third Street and waited to turn left. According to Mandefro, she

observed Ward stepping into the crosswalk, and Mandefro judged that she had enough time

to safely execute the turn.   She stated that she moved forward and “was making that left

turn, when all I see is just movement coming towards my car.” She stated that she observed

the movement in her periphery, and that it “was fast. It was not gradual. It was almost like

a propelling. * * * .”   Mandefro testified that she observed “an elbow hitting * * * the side

mirror of my car.” She testified that her vehicle was not damaged but that her side mirror

had been moved out of position after the impact. Mandefro stated that after the accident,

she observed that Ward’s elbow was “scratched up,” and her big toe was bleeding.

       {¶ 9}    At the close of the defense’s case, Ward moved the court for a directed

verdict on the issue of proximate cause, arguing that the “only proximate cause testimony

from a qualified medical doctor came from Dr. Prayson and he said as a result of this motor

vehicle collision, it caused these injuries,” and further that the defense failed to provide

competent medical evidence of alternative causation. The defense responded that Prayson

relied solely upon Ward’s version of events and that “the jury could conclude based on the

bent sandal, based on the open toe, based on the propelling, based on her falling, all those

things the jury could conclude that one can break their toe in any manner of ways, including

and not limited to that.” The trial court overruled the motion.

       {¶ 10}    After the jury’s verdict was announced, counsel for Ward moved for

judgment notwithstanding the verdict on the issue of proximate cause. The trial court

allowed the parties to brief the issue, and Ward filed a motion which the defense opposed.

The court subsequently overruled Ward’s motion.
                                                                                          8

       {¶ 11} Ward asserts two assignments of error.          Her first assigned error is as

follows:

                THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S

       MOTION FOR DIRECTED VERDICT ON THE ISSUE OF PROXIMATE

       CAUSE AT THE CLOSE OF APPELLEE’S CASE IN CHIEF.

       {¶ 12} Civ.R. 50(A)(4) provides:

                When a motion for a directed verdict has been properly made, and the

       trial court, after construing the evidence most strongly in favor of the party

       against whom the motion is directed, finds that upon any determinative issue

       reasonable minds could come to but one conclusion upon the evidence

       submitted and that conclusion is adverse to such party, the court shall sustain

       the motion and direct a verdict for the moving party as to that issue.

       {¶ 13} As this Court recently noted:

                We review the grant or denial of directed verdicts de novo.         In

       conducting the review, we construe the evidence most strongly in favor of the

       nonmoving party. A motion for directed verdict must be denied “where

       there is substantial evidence upon which reasonable minds could reach

       different conclusions on the essential elements of the claim.” Anousheh v.

       Planet    Ford,   Inc.,   2d   Dist.   Montgomery      Nos.    21960,    21967,

       2007-Ohio-4543, ¶ 43. Furthermore, “[i]n deciding a motion for directed

       verdict, neither the weight of the evidence nor the credibility of the witnesses

       is to be considered.” Cater v. City of Cleveland, 83 Ohio St.3d 24, 33,
                                                                                                9

       1998-Ohio-421, 697 N.E.2d 610.               Kademian v. Marger, 2d Dist.

       Montgomery No. 24256, 2012-Ohio-962, ¶ 56.

       {¶ 14} “The ‘reasonable minds’ test calls upon a court to determine only whether

there exists any evidence of substantial probative value in support of the claims of the

nonmoving party. * * *. ” Lasley v. Nguyen, 172 Ohio App.3d 741, 2007-Ohio-4086, 876

N.E.2d 1274, ¶ 16 (2d Dist.) “‘When a motion for directed verdict is entered, what is being

tested is a question of law; that is, the legal sufficiency of the evidence to take the case to

jury.’” Id., ¶ 17, quoting Ruta v. Breckenridge-Remy Co., 69 Ohio St.2d 66, 430 N.E.2d

935 (1982). The motion “‘raises a question of law because it examines the materiality of

the evidence, as opposed to the conclusions to be drawn from the evidence.’” Id.

       {¶ 15}     “‘It is well settled that the elements of an ordinary negligence suit are (1)

the existence of a legal duty, (2) the defendant’s breach of that duty, and (3) injury that is the

proximate cause of the defendant’s breach.’ * * * .” Carpenter v. Long, 196 Ohio App.3d

376, 2011-Ohio-5414, 963 N.E.2d 857, ¶ 115 (2d Dist.). Regarding the element of proximate

cause, this Court has previously noted:

                “Causation” refers to the cause and effect relationship between

       tortious conduct and a loss that must exist before liability for that loss may be

       imposed. * * * While difficult to define, “proximate cause” is generally

       established “where an original act is wrongful or negligent and, in a natural

       and continuous sequence, produces a result [that] would not have taken place

       without the act.” * * * It is also well settled that because the issue of

       proximate cause is not open to speculation, conjecture as to whether the
                                                                                          10

       breach of duty caused the particular damage is not sufficient as a matter of

       law. * * * Further a plaintiff must establish proximate cause by a

       preponderance of the evidence. * * *. Innovative Technologies Corp. v.

       Advanced Management Technology, Inc., 2d Dist. Montgomery No. 23819,

       2011-Ohio-5544, ¶ 31.

       {¶ 16}    Ward asserts that the defense “failed to adequately refute [her] prima facie

evidence that the impact with Appellee’s vehicle was the proximate cause of her injuries.”

She asserts that the nature of her injuries required “more than common knowledge to bridge

the gap between injury and the subsequent physical disability caused by the collision” with

Mandefro’s car. She asserts that the jury should not have been permitted to “entertain

Appellee’s assertion that [her] injuries resulted from a trip or stub” in the absence of “the

corroborating testimony of a medical expert,” and that neither the cross-examination of

Prayson nor the proffered alternative theory of causation, namely that she injured her foot

when she tripped, were sufficient to refute her claim.

       {¶ 17}    Ward directs our attention to Darnell v. Eastman, 23 Ohio St.2d 13, 261

N.E.2d 114 (1970), which held at syllabus: “Except as to questions of cause and effect which

are so apparent as to be matters of common knowledge, the issue of causal connection

between an injury and a specific subsequent physical disability involves a scientific inquiry

and must be established by the opinion of medical witnesses competent to express such

opinion.”

       {¶ 18} Regarding the nature of her injury, Ward further relies upon Bennett v.

Goodremont’s, Inc., 6th Dist. Lucas No. L-10-1185, 2011-Ohio-1264, ¶ 16-17, which
                                                                                               11

distinguished between injuries which are matters of common knowledge, and injuries that

are “internal and elusive in nature” and accordingly “outside the realm of common

knowledge,” concluding that the latter require proof of causation by expert medical

testimony.

          {¶ 19} The cases upon which Ward relies involve the burden of proof placed upon

someone injured by the negligent act of another. This burden includes establishing that

the negligent act of another is the proximate cause of the injury. “Defendants can avoid a

directed verdict on this subject through cross-examination, presentation of contrary evidence

that the negligence was not the probable cause of the injury, or presenting evidence of

alternative causes of the injury.” Werth v. Davies, 120 Ohio App.3d 563, 570, 698 N.E.2d

507 (1st. Dist. 1997), citing Stinson v. England, 69 Ohio St. 3d 451, 456-57, 633 N.E.2d 532

(1994).

          {¶ 20}   On cross-examination, the defense adduced testimony that            Prayson’s

opinion was based solely upon the history that Ward related. Prayson testified that he does

not investigate the specifics of causation but gives his patients the benefit of the doubt in that

respect, since his focus is on treatment.    He described the history Ward related to him as

“critical,” or essential, to his opinion on causation, since he did not observe the collision. In

other words, Prayson assumed the truth of her history. Further, as the defense asserts,

Prayson did not testify as to how Ward’s injuries actually occurred.            Finally, Prayson

stated that he was unaware of the type of shoes that Ward was wearing when she was

injured.

          {¶ 21} While Ward denied that she tripped and fell into Mandefro’s car, the
                                                                                         12

testimonies of Tompkins and Mandefro both suggest that Ward in fact did so, and that

Ward’s injury accordingly was not proximately caused by the tortious conduct of Mandefro.

Tompkins, the independent eyewitness, stated that Ward was in a “big rush,” and that she

“tripped over the shoe” and “fell into the vehicle.” He indicated that Ward’s sandal was

snapped backwards, a condition that supports a conclusion that Ward tripped on her open toe

sandal (a condition of which Prayson was unaware). Mandefro’s testimony that Ward hit

the mirror of her car in a rapid, “propelling” motion is consistent with the testimony of

Tompkins.

       {¶ 22}    Construing the evidence most strongly in favor of the defense, we find that

reasonable minds could differ with respect to the element of proximate cause as a matter of

law. Accordingly, the trial court properly submitted the issue of causation to the jury.

Ward’s first assigned error is overruled.

       {¶ 23} Ward’s second assignment of error is as follows:

                THE JURY’S VERDICT IS AGAINST THE MANIFEST WEIGHT

       OF THE EVIDENCE.

       {¶ 24}    As this Court has previously noted, in a weight of the evidence challenge,

an appellate court:

                “[R]eview[s] the entire record, weighs the evidence

                       and all reasonable inferences, considers the

                       credibility of witnesses and determines whether

                       in resolving conflicts in the evidence, the jury

                       clearly lost its way and created such a manifest
                                                                                13

               miscarriage of justice that the conviction must

               be reversed and a new trial ordered.       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, quoting State v. Martin

               (1983), 20 Ohio App.3d 172, 175.       State v.

               Pierre, 2d Dist. Montgomery No. 18443,

               2001 WL 220239 (March 2, 2001).

{¶ 25}    As noted by the First District:

         The Ohio Supreme Court has recently clarified and explained the

standard of review to be applied when assessing the manifest weight of the

evidence in a civil case.     Eastley v. Vollman, - - - Ohio St.3d     - - -,

2012-Ohio-2179, - - - N.E.2d - - -. In Eastley, the court held that the

standard of review for the manifest weight of the evidence established in

[Thompkins] is also applicable in civil cases. * * * . Consequently, when

reviewing the weight of the evidence, our analysis must determine whether

the trial court’s judgment was supported by the greater amount of credible

evidence, and whether the plaintiff met its burden of persuasion, which is by

a preponderance of the evidence. * * * . We are mindful that, in a bench

trial, “the trial judge is best able to view the witnesses and observe their
                                                                                   14

demeanor, gestures and voice inflections, and use these observations in

weighing the credibility of the proffered testimony.” Seasons Coal Co., Inc.

v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984). It follows that,

“[i]f the evidence is susceptible of more than one construction, the reviewing

court is bound to give it that interpretation which is consistent with the

verdict and judgment, most favorable to sustaining the verdict and judgment.”

 Id. at fn. 3, quoting 5 Ohio Jurisprudence 3d, Appellate Reveiw, Section 60,

at 191-192 (1978). SST Bearing Corporation. v. Twin City Fans Companies

Limited, 1st Dist. Hamilton No. C-110611, 2012-Ohio-2490, ¶ 16.

{¶ 26}    Further,

         While Thompkins explicitly permits this court to consider credibility

when confronted with an argument that the verdict is against the manifest

weight of the evidence, such consideration is not unbounded. We have

explained the limited role of an appellate court in reviewing issues of

credibility in weight of the evidence challenges as follows:

         “Because the factfinder, be it the jury or * * * trial judge, has the

opportunity to see and hear the witnesses, the cautious exercise of the

discretionary power of a court of appeals to find that a judgment is against the

manifest weight of the evidence requires that substantial deference be

extended to the factfinder’s determinations of credibility.       The decision

whether, and to what extent, to credit the testimony of particular witnesses is

within the peculiar competence of the factfinder, who has seen and heard the
                                                                                           15

       witness.    Contrastingly, the decision as to which of several competing

       inferences, suggested by the evidence in the record, should be preferred, is a

       matter in which an appellate judge is at least equally qualified, by reason and

       experience, to venture an opinion. Therefore, although this distinction is not

       set forth in Thompkins, supra, we conclude that a decision by a factfinder as

       to which testimony to credit, and to what extent, is a decision that is entitled

       to greater deference than the decision as to how much logical force to assign

       an inference suggested by that evidence - in short, how persuasive it is. State

       v. Lawson (Aug. 22, 1997), Montgomery App. No. 16288, unreported.”

       State v. Pierre, supra.

       {¶ 27}     According to Ward, the jury lost its way when it found that her injuries

were not proximately caused by Mandefro’s negligence.            Ward asserts again that the

defense “failed to provide competent evidence that it was even possible that [her] injuries

could be caused by a trip.” Nevertheless, it was not Mandefro’s burden to establish

proximate cause; that burden rested with Ward.

       {¶ 28} As this Court has previously noted:

                “[T]he jury is not required to give any additional weight to the opinion

       of an expert, if any weight at all. Rather, an expert’s opinion is admissible,

       as is any other testimony, to aid the trier of fact in arriving at a correct

       determination of the issues being litigated. Expert testimony is permitted to

       supplement the decision-making process of the fact finder not to supplant it.

       (Citation omitted)”’ McBride v. Quebe, 2d Dist. Montgomery No. 21310,
                                                                                            16

        2006-Ohio-5128, ¶ 5.

        {¶ 29} The record reflects that the jury was instructed that they “must determine

whether the assumption on which the expert based his opinions are true. If any assumed

fact was not established by the greater weight of the evidence, you will determine the effect

of that failure on the value of the opinion of the expert,” and that they “may believe or

disbelieve all or any part of the testimony of any witness,” and that “upon you alone rests the

duty of deciding what weight should be given to the testimony of an expert.”

        {¶ 30}    After thoroughly reviewing the entire record, weighing the evidence and all

reasonable inferences, we cannot conclude that in resolving conflicts in the evidence, the

jury lost its way and thereby created a manifest miscarriage of justice. The jury had the

opportunity to see and hear all of the witnesses, and it was free to determine which testimony

to credit. We defer to the jury’s assessment of credibility. On this record, the jury could

have simply discredited Prayson’s testimony regarding causation because the assumed facts

on which his opinions were based were not established by the greater weight of the evidence,

given the testimony of Tompkins and Mandefro. There being no merit to Ward’s second

assigned error, it is overruled.

        {¶ 31} The judgment of the trial court is affirmed.



                                         ..........

HALL, J., concurs.

GRADY, P.J., concurring:

        {¶ 32}    The issue was whether the driver of the vehicle, Mandefro, was negligent,
                                                                                            17

and whether that negligence proximately resulted in the injuries to her foot and related losses

of which Plaintiff Ward complained.     The jury found that Mandefro was negligent, but that

Ward’s injuries did not proximately result from that negligence.

       {¶ 33}    Proximate cause is a question of fact.        Though Ward offered expert

opinion evidence that her injuries proximately resulted from Mandefro’s negligence, the jury

was free to reject that evidence if it found a different proximate cause. Defendant was not

required to likewise offer expert evidence in order to argue a different proximate cause,

because the jury could weigh the evidence presented to find that Ward’s injuries resulted or

may have resulted from another proximate cause, without the assistance of expert opinion

evidence.

                                         ..........

Copies mailed to:

Jeffrey W. Snead
Kevin C. Connell
Hon. Timothy N. O’Connell
