[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Rieger v. Giant Eagle, Inc., Slip Opinion No. 2019-Ohio-3745.]




                                        NOTICE
     This slip opinion is subject to formal revision before it is published in an
     advance sheet of the Ohio Official Reports. Readers are requested to
     promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
     South Front Street, Columbus, Ohio 43215, of any typographical or other
     formal errors in the opinion, in order that corrections may be made before
     the opinion is published.


                         SLIP OPINION NO. 2019-OHIO-3745
             RIEGER, APPELLEE, v. GIANT EAGLE, INC., APPELLANT.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
          may be cited as Rieger v. Giant Eagle, Inc., Slip Opinion No.
                                   2019-Ohio-3745.]
Civil law—Application of Civ.R. 50(A)(4)—Directed verdict should be granted
        when there is insufficient evidence as a matter of law establishing causation
        for claims of negligence and negligent entrustment—Court of appeals’
        judgment reversed.
   (No. 2018-0883—Submitted April 24, 2019—Decided September 19, 2019.)
             APPEAL from the Court of Appeals for Cuyahoga County,
                            No. 105714, 2018-Ohio-1837.
                                 _________________
        STEWART, J.
        {¶ 1} This is a discretionary appeal from the Eighth District Court of
Appeals challenging a jury verdict awarding compensatory and punitive damages
on claims of negligence and negligent entrustment against appellant, Giant Eagle,
                                   SUPREME COURT OF OHIO




Inc. Because there is insufficient evidence as a matter of law to establish causation
for purposes of those claims, the court of appeals should have reversed the trial
court’s denial of Giant Eagle’s Civ.R. 50(A)(4) motion for a directed verdict.
Accordingly, we reverse the judgment of the court of appeals and enter judgment
in favor of Giant Eagle.
                     I. FACTS AND PROCEDURAL HISTORY
         {¶ 2} In December 2012, appellee, Barbara Rieger,1 was at the Giant Eagle
grocery store in Brook Park. While she was standing at the bakery counter, her
shopping cart was hit by a Giant Eagle motorized cart driven by Ruth Kurka. As a
result of the collision, Rieger was knocked to the ground and injured. Rieger was
not able to stand after the accident and was taken to the hospital by ambulance. She
incurred $11,511 in medical bills. She subsequently filed a personal-injury action
against Kurka and Giant Eagle. Kurka died prior to trial, but her estate settled with
Rieger for $8,500 and Kurka’s estate was dismissed as a party in the lawsuit.
         {¶ 3} At trial, Rieger testified on her own behalf. She also presented
portions of deposition testimony from the decedent’s husband, George Kurka, and
corporate representatives from Giant Eagle. During his deposition, George Kurka
testified that his wife had been diagnosed with dementia prior to the incident at
Giant Eagle and that his wife had never been trained on how to operate the
motorized cart. Giant Eagle’s corporate representative testified at his deposition
that (1) Giant Eagle provides motorized carts for customers with mobility
limitations, (2) there are no operational instructions on the carts, (3) Giant Eagle
assumes that all individuals who use the carts know how to drive them, and (4) the
warnings posted on the carts are for the cart operators. Rieger also presented to the
jury evidence of 117 incidents involving motorized carts at various corporate-
owned Giant Eagle stores from 2004 to 2012. Before the case was submitted to the

1. On August 26, 2019, counsel for Rieger filed a suggestion of death notifying this court that Rieger
died on August 26, 2019.




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jury, Giant Eagle moved for a directed verdict on the issues of negligence and
negligent entrustment. The trial court denied Giant Eagle’s requests.
       {¶ 4} On October 16, 2016, the jury found Giant Eagle negligent and that
Giant Eagle’s negligence was the proximate cause of Rieger’s injuries. The jury
awarded Rieger $121,000 in compensatory damages and $1,198,000 in punitive
damages. The parties stipulated that any compensatory damages awarded by the
jury would be offset by the $8,500 settlement between Rieger and Kurka’s estate.
Rieger filed a motion, which Giant Eagle opposed, asserting that R.C. 2315.21—
Ohio’s statute limiting punitive-damage awards to two times the amount of the
compensatory-damages award—was unconstitutional as applied to her case.
Following a hearing, the trial court agreed with Rieger and found the statutory cap
on punitive damages under R.C. 2315.21 unconstitutional as applied to her case.
Consequently, the trial court entered a judgment awarding Rieger $112,500 in
compensatory damages and $1,198,000 in punitive damages.
       {¶ 5} Giant Eagle timely appealed and asserted, among other arguments,
that the trial court erred when it denied Giant Eagle’s motion for a directed verdict
on the issues of negligence, negligent entrustment, and punitive damages. The
court of appeals disagreed and held that reasonable minds could have found in
Rieger’s favor on each issue.          Although the Eighth District affirmed the
compensatory-damages award, it reversed the trial court’s judgment that R.C.
2315.21 was unconstitutional as applied to Rieger’s case and reduced her punitive-
damages award from $1,198,000 to $242,000.
       {¶ 6} Giant Eagle timely appealed to this court, and we accepted the
following three propositions of law:


               Proposition of Law I: For stores that provide motorized carts
       to disabled shoppers, the Eighth District created entirely new tort
       duties owed by them—a duty to warn the user about the obvious




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       danger of a pedestrian-cart collision, a duty to train disabled
       customers how to operate a simple motorized cart, and a duty to
       interrogate customers to determine whether their disability
       disqualifies them from operating a cart.
               Proposition of Law II: The Eighth District has created a new
       standard for malice that makes the mere possibility of harm from the
       underlying tortious conduct—no matter how improbable—
       sufficient for an award of punitive damages.
               Proposition of Law III: For accidents involving motorized
       shopping carts, the Eighth District created a new strict liability
       standard for stores by (a) eliminating the need to prove that the
       store’s negligence caused the accident and (b) basing that liability
       solely on dissimilar motorized shopping cart accidents thereby
       rendering the store an insurer for such accidents.


See 153 Ohio St.3d 1474, 2018-Ohio-3637, 106 N.E.3d 1260; 154 Ohio St.3d 1432,
2018-Ohio-4670, 111 N.E.3d 1432.
       {¶ 7} We need address only the third proposition of law to resolve this case.
Upon review, we hold that there is insufficient evidence as a matter of law
establishing causation to support Rieger’s claims of negligence and negligent
entrustment against Giant Eagle. The trial court should not have denied Giant
Eagle’s motion for a directed verdict, and the court of appeals should not have
affirmed the trial court’s judgment. Accordingly, we reverse the judgment of the
court of appeals and enter judgment in favor of Giant Eagle.
                          II. LAW AND ANALYSIS
       {¶ 8} A court’s decision whether to grant or deny a motion for a directed
verdict under Civ.R. 50(A)(4) is a question of law that this court reviews de novo.




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White v. Leimbach, 131 Ohio St.3d 21, 2011-Ohio-6238, 959 N.E.2d 1033, ¶ 22.
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.


       {¶ 9} A motion for a directed verdict should be granted when, after
construing the evidence most strongly in favor of the party against whom the
motion is directed, “ ‘reasonable minds could come to but one conclusion upon the
evidence submitted and that conclusion is adverse to such party.’ ” Leimbach at
¶ 22, quoting Goodyear Tire & Rubber Co. v. Aetna Cas. & Sur. Co., 95 Ohio St.3d
512, 2002-Ohio-2842, 769 N.E.2d 835, ¶ 4. Before granting a motion for a directed
verdict in accordance with Civ.R. 50(A)(4), the reasonable-minds test requires the
court to determine whether there is any evidence of substantive probative value that
favors the nonmoving party. Id. Thus, although a motion for a directed verdict
does not present a question of fact, when deciding a motion for a directed verdict
the court must “ ‘review and consider the evidence.’ ” Ruta v. Breckenridge-Remy
Co., 69 Ohio St.2d 66, 68, 430 N.E.2d 935 (1982), quoting O’Day v. Webb, 29 Ohio
St.2d 215, 280 N.E.2d 896 (1972), paragraph three of the syllabus. In order for a
personal-injury action to be submitted to a jury, a plaintiff must produce some
evidence for each element essential to establish liability. Strother v. Hutchinson,
67 Ohio St.2d 282, 285, 423 N.E.2d 467 (1981).




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                              A. The Negligence Claim
        {¶ 10} In order to establish an actionable claim of negligence, a plaintiff
must show the existence of a duty, a breach of that duty, and an injury that was
proximately caused by the breach. Strother at 286-287. The failure to prove any
one of these elements is fatal to a claim of negligence, and we consider the
sufficiency of the evidence for the element of causation. That is, we must determine
whether there was any evidence that Rieger would not have been injured had Giant
Eagle provided Kurka with training or instruction for purposes of operating the
motorized cart.
        {¶ 11} Generally, causation is a question of fact for the jury; however,
before the question may be submitted to the jury, the plaintiff must present some
evidence of causation. Renfroe v. Ashley, 167 Ohio St. 472, 150 N.E.2d 50 (1958).
In Renfroe, the plaintiff alleged that a landlord’s failure to install a handrail within
an interior stairway as required by law proximately caused her to fall down those
stairs and injure herself. The only evidence that the plaintiff submitted to the jury
regarding the cause of her fall was her own testimony, which included the statement
that she did not know “whether [she] slipped or tripped or what happened.” Id. at
475. We held that despite the fact that the landlord had failed to install the handrail,
the evidence of causation was too meager and inconclusive to support a finding that
the landlord’s failure was the direct or proximate cause of the plaintiff’s fall and
injury. Id.
        {¶ 12} Causation is established using the “but for” test. Anderson v. St.
Francis-St. George Hosp., Inc., 77 Ohio St.3d 82, 84-85, 671 N.E.2d 225 (1996).
A defendant’s conduct is the cause of the harm if the harm would not have occurred
but for the defendant’s act or failure to act. Id.; see also Renfroe at 475; Strother,
67 Ohio St.2d at 287, 423 N.E.2d 467. It is not enough for the plaintiff to assert or
speculate that the defendant’s actions or failure to act might have caused the injury.
Gedra v. Dallmer Co., 153 Ohio St. 258, 91 N.E.2d 256 (1950), paragraph two of




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                                 January Term, 2019




the syllabus; accord Krupar v. Procter & Gamble Co., 160 Ohio St. 489, 117
N.E.2d 7 (1954), paragraph two of the syllabus. There must be evidence of
causation before the plaintiff’s negligence claim may be submitted to the jury.
Johnson v. Wal-Mart Stores E., L.P., 2014-Ohio-2998, 12 N.E.3d 1262, ¶ 24 (2d
Dist.).
          {¶ 13} In Johnson, the plaintiff was injured when she was hit by a Wal-Mart
motorized cart driven by another customer. In the plaintiff’s action for damages
against Wal-Mart, she asserted that Wal-Mart had breached a duty of care owed to
her, a business invitee, because it had failed to instruct and train the operators of its
motorized carts and because it had failed to warn other Wal-Mart customers about
the risks of being around those customers who were using the motorized carts. It
was undisputed that Wal-Mart did not provide training or instruction for the
operation of its carts. The Second District Court of Appeals held that Wal-Mart’s
lack of training its customers on the operation of its carts was insufficient as a
matter of law to establish that the lack of training was causally related to the
plaintiff’s injury. Id. at ¶ 26, 29. Accordingly, the court held that there was no
genuine issue of material fact on the element of causation to send to the jury.
          {¶ 14} Here, the court of appeals found sufficient evidence from which
reasonable minds could find that Giant Eagle was negligent. But the only element
of a negligence claim that the court of appeals found that Rieger had met was
establishing the existence of a duty. More specifically, the court of appeals found
that Giant Eagle’s knowledge of the prior 117 incidents involving motorized carts
was reasonably sufficient to establish that Giant Eagle owed a duty to Rieger. But
even if we were to agree with the court of appeals that there was legally sufficient
evidence for a reasonable jury to find that Giant Eagle owed a duty to Rieger, a
plaintiff’s injury and evidence of a duty are not enough. Rieger still had to prove
that Giant Eagle’s failure to provide Kurka with instruction or training on how to




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operate the motorized carts caused Rieger’s injuries. And the court of appeals’
opinion is silent on the element of causation.
       {¶ 15} Rieger asserts that Giant Eagle breached its duty to Rieger, a
business invitee, by failing to take any action to protect her from the negligence of
other customers who had not been instructed on how to use the motorized carts and
that had Giant Eagle properly instructed the motorized-cart users, Rieger’s accident
could have been prevented. This is speculation. Rieger presented no evidence that
the cause of the prior 117 incidents was due to motorized-cart drivers’ lack of
instruction and training. Likewise, Rieger presented no evidence that Giant Eagle’s
lack of instruction and training was the cause of the accident in her case. Because
there is no evidence of causation, the court of appeals should have reversed the trial
court’s denial of Giant Eagle’s motion for a directed verdict on Rieger’s negligence
claim. It is therefore not necessary to decide whether Rieger presented sufficient
evidence establishing the existence of a duty, the breach of that duty, or damages.
                       B. The Negligent-Entrustment Claim
       {¶ 16} As with the negligence claim, Rieger argues, and the court of appeals
agreed, that Giant Eagle’s knowledge of the 117 prior incidents involving
motorized carts in its stores and Giant Eagle’s failure to provide instruction were
sufficient to establish a claim of negligent entrustment. Again, the record contains
no evidence of causation.
       {¶ 17} To establish a claim for negligent entrustment involving the
operation of a motorized vehicle, the plaintiff must show that the vehicle was
operated with permission of the owner, that the driver of the vehicle was
incompetent to operate it, and that the owner of the vehicle knew—either through
actual knowledge or through knowledge implied from known facts at the time of
the entrustment—that the driver was unqualified or incompetent to operate the
vehicle. Gulla v. Straus, 154 Ohio St. 193, 93 N.E.2d 662 (1950), paragraph three
of the syllabus. Additionally, the plaintiff must show that the vehicle owner’s




                                          8
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negligent entrustment caused the plaintiff’s injury. Safeco Ins. Co. of Am. v. White,
122 Ohio St.3d 562, 2009-Ohio-3718, 913 N.E.2d 426, ¶ 36. The failure to prove
any one of these elements is fatal to a claim of negligent entrustment.
       {¶ 18} As we observed regarding the negligence claim, despite the fact that
Giant Eagle does not provide training for its customers who use the motorized carts,
there is no evidence that training would have prevented the accident in this case. In
fact, the trial court had evidence before it that Kurka had been driving the motorized
carts for well over a year, drove them on a regular basis, and had no accidents prior
to the accident in this case. Mr. Kurka testified that his wife had been diagnosed
with dementia prior to the accident; however, Rieger did not present any evidence,
expert or otherwise, that Kurka’s dementia rendered her incompetent to operate the
motorized cart or that her dementia caused the accident. And even if Kurka’s
dementia was somehow a contributing factor to the accident, Rieger did not present
any evidence that Kurka’s dementia was discernable. Again, because there is no
evidence of causation to support a claim of negligent entrustment, the trial court
should have granted Giant Eagle’s motion for a directed verdict on Rieger’s claim
of negligent entrustment. We therefore do not need to decide whether Rieger
presented sufficient evidence establishing the remaining elements of negligent
entrustment.
                         C. The Punitive-Damages Claim
       {¶ 19} In light of our holding that this case should have been resolved by
the granting of a directed verdict in Giant Eagle’s favor, the award of punitive
damages must be vacated. Pursuant to R.C. 2315.21(C), punitive damages are not
recoverable unless there has been a verdict in the plaintiff’s favor on the issue of
compensatory damages. Niskanen v. Giant Eagle, Inc., 122 Ohio St.3d 486, 2009-
Ohio-3626, 912 N.E.2d 595, ¶ 13; see also Moskovitz v. Mt. Sinai Med. Ctr., 69
Ohio St.3d 638, 650, 635 N.E.2d 331 (1994) (punitive damages are awarded as an




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incident to the cause of action from which they are sought; compensable harm must
be found before punitive damages may be considered).
                                III. CONCLUSION
       {¶ 20} Upon review, we hold that there is insufficient evidence of causation
as a matter of law to support the claims of negligence and negligent entrustment
against Giant Eagle. The trial court should have granted Giant Eagle’s motion for
a directed verdict, and the court of appeals should not have affirmed the trial court’s
judgment. Accordingly, we reverse the court of appeals’ judgment and enter
judgment in favor of Giant Eagle.
                                                                  Judgment reversed.
       O’CONNOR, C.J., and KENNEDY, FRENCH, FISCHER, DEWINE, and
DONNELLY, JJ., concur.
                                _________________
       Wargo & Wargo, L.P.A., John J. Wargo, and Thomas M. Wilson, for
appellee.
       Williams, Moliterno & Scully Co., L.P.A., Roger H. Williams, and
Christina N. Williams; and Marcus & Shapira, L.L.P., and Scott D. Livingston, for
appellant.
       Vorys, Sater, Seymour & Pease L.L.P., Richard D. Schuster, and Nathan L.
Colvin, urging reversal for amici curiae, Food Marketing Institute, Ohio Council of
Retail Merchants, Ohio Grocers Association, Ohio Alliance for Civil Justice,
National Grocers Association, and Ohio Chamber of Commerce.
                                _________________




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