[Cite as Johnson v. Burris, 2015-Ohio-260.]


                                       COURT OF APPEALS
                                   GUERNSEY COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

                                                      JUDGES:
JOSHUA R. JOHNSON                             :       Hon. William B. Hoffman, P.J.
                                              :       Hon. W. Scott Gwin, J.
                         Plaintiff-Appellee   :       Hon. John W. Wise, J.
                                              :
-vs-                                          :
                                              :       Case No. 14 CA 12
BONNIE BURRIS                                 :
                                              :
                    Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                          Civil appeal from the Guernsey County
                                                  Court of Common Pleas, Case No. 12-PI-
                                                  255

JUDGMENT:                                         Affirmed



DATE OF JUDGMENT ENTRY:                           January 15, 2015




APPEARANCES:

For Plaintiff-Appellee                            For Defendant-Appellant

ROBERT CRAIG MCLAUGHLIN                           MATTHEW MULLEN
6105 Parkland Blvd.                               158 North Broadway
Mayfield Heights, OH 44124                        New Philadelphia, OH 44663
[Cite as Johnson v. Burris, 2015-Ohio-260.]


Gwin, J.

        {¶1}    Appellant appeals the May 9, 2014 judgment entry of the Guernsey

County Court of Common Pleas granting appellee’s motion for a new trial pursuant to

Civil Rule 59(A)(6).

                                          Facts & Procedural History

        {¶2}    On May 22, 2010, appellee Joshua Johnson sustained bodily injury from a

motor vehicle accident that occurred when appellant Bonnie Burris failed to yield when

turning and caused a collision with a car in which appellee was a passenger. During the

collision, appellee’s right knee hit the dashboard. As a result of the accident, appellee

fractured his kneecap and damaged the cartilage in his kneecap. On May 17, 2012,

appellee filed a negligence complaint against appellant.

        {¶3}    On February 7, 2013, the parties filed stipulations. The parties stipulated

that appellant was negligent in the operation of a motor vehicle and proximately caused

the motor vehicle crash that is the subject of the lawsuit. The parties also stipulated that

appellee’s medical records and medical bills are authentic and admissible, but reserved

the right to challenge the admissibility of specific portions of the records. Accordingly,

the trial court conducted a trial on whether the motor vehicle crash proximately caused

appellee’s injuries and the amount of damages.

        {¶4}    Testimony at trial included testimony from appellee, appellant, Genevieve

Knox (“Knox”), appellee’s girlfriend and the driver of the car appellee was injured in, and

Dr. Kim Stearns. Dr. Stearns, who conducted an independent medical examination of

appellee, testified that appellee fractured his right kneecap and had bruised cartilage

under the right kneecap. Further, that the car crash caused the injuries to appellee’s
Guernsey County, Case No. 14 CA 12                                                      3


right knee. Stearns stated that these types of injuries can keep appellee from doing

activities of daily living and hobbies. According to Stearns, appellee needed crutches

for several weeks due to the pain of the injury. Appellee testified that, after the crash,

he had intense pain in his leg. Subsequently, he was on crutches for six weeks and has

had four knee braces for his knee. Both appellee and Knox testified that appellee was

in pain after the accident and the injury interfered with his ability to perform his usual

activities.

        {¶5}   Appellee also introduced into evidence medical records from the

emergency room on the day of the accident, from the emergency room three days after

the accident, from appellee’s treating orthopedic surgeon, and from appellee’s physical

therapy. Exhibit 7 shows that appellee went to the emergency room several hours after

the accident with the admitting diagnosis of “right leg pain” and his chief complaint was

noted to be “severe pain in right knee.” Medical records from three days after the

accident state that appellee returned to the emergency room for a follow-up and stated

he had “severe pain in the knee” and he was “not able to bear weight.” Records from

appellee’s treating orthopedic surgeon indicate that appellee had moderate right knee

pain on May 27, 2010 and continued to wear a knee brace into June and July of 2010.

Medical records from appellee’s physical therapy provide that appellee had joint pain of

the knee at the end of June of 2010 and his knee was immobilized in an extension.

        {¶6}   During the trial, both Knox and appellee testified that appellee was

wearing his seatbelt at the time of the accident. Appellant testified that she was “not

sure about the seatbelt. I would say he didn’t have one on.” Based on this testimony,
Guernsey County, Case No. 14 CA 12                                                         4


appellant requested a jury instruction regarding seat belt usage. The trial court granted

appellant’s request and included the following instruction to the jury:

       Plaintiff may not have been wearing a seatbelt at the time of the

       accident. If you find the plaintiff not to have been wearing a seatbelt, and

       that the nonuse of a seatbelt contributed to the plaintiff's alleged injuries,

       then you may reduce the recovery of non-economic loss that could have

       been recovered, but for the plaintiff’s failure to wear a seat belt.

       {¶7}   The jury found for appellee in the amount of $17,452.19.           In the first

interrogatory, the jury found that the accident caused by appellant proximately caused

appellee’s injuries. In the second interrogatory, the jury awarded appellee $17,452.19

in past economic damages, $0 in past non-economic damages, $0 in future economic

damages, and $0 in future non-economic damages. On March 7, 2014, the trial court

entered judgment for appellee in accordance with the jury verdict in the amount of

$17,452.19, plus costs and interest.

       {¶8}   On March 19, 2014, appellee filed a motion for new trial pursuant to Civil

Rule 59(A)(6) and argued the jury’s verdict was against the manifest weight of the

evidence. Appellant filed a response in opposition to appellee’s motion on March 24,

2014. Appellee filed a reply on April 1, 2014.

       {¶9}   The trial court granted appellee’s motion on May 9, 2014. The trial court

granted appellee’s motion for two reasons: (1) the award of $0 for non-economic

damages was against the weight of the evidence as the jury had to award some amount

of non-economic compensatory damages for pain and suffering based upon the

evidence presented; and (2) R.C. 4513.263(F)(1) only allows damages to be reduced
Guernsey County, Case No. 14 CA 12                                                        5


or diminished, not denied completely, if the jury believed appellee was not wearing a

seatbelt.

       {¶10} Appellant appeals the May 9, 2014 judgment entry of the Guernsey

County Court of Common Pleas and assigns the following as error:

       {¶11} “I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT GRANTED

JOSHUA JOHNSON A NEW TRIAL PURSUANT TO CIV.R. 59(A)(6).”

       {¶12} Civil Rule 59(A) permits a new trial to be granted to a party on all or part of

the issues based upon any one of the nine enumerated grounds. Civil Rule 59(A)(6)

allows for a new trial when the “judgment is not sustained by the weight of the

evidence.” When considering a motion for a new trial pursuant to Civil Rule 59(A)(6), a

court must weigh the evidence and pass on the credibility of the witnesses. A new trial

will not be granted where the verdict is supported by competent, substantial, and

apparently credible evidence. Harris v. Mt. Sinai Med. Ctr., 116 Ohio St.3d 139, 2007-

Ohio-5587, 876 N.E.2d 1201. Because a trial court is in the best position to decide

issues of fact, it is vested with broad discretion in ruling upon motions for new trial

based upon Civil Rule 59(A)(6). Id. Our standard of review on a motion for new trial is

abuse of discretion. Civil Rule 59. In order to find an abuse of discretion, we must

determine the trial court’s decision was unreasonable, arbitrary, or unconscionable and

not merely an error of law or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450

N.E.2d 1140 (1983).

       {¶13} In order to set aside a damage award as inadequate and against the

manifest weight of the evidence, a reviewing court must either determine that the verdict

is so gross as to shock the sense of justice and fairness, cannot be reconciled with the
Guernsey County, Case No. 14 CA 12                                                      6


undisputed evidence in the case, or is the result of an apparent failure by the jury to

include all the elements of damage making up the plaintiff’s claim. Cooper v. Moran,

11th Dist. Lake No. 2010-L-141, 2011-Ohio-6847.

             Awarding Non-Economic Damages Based on the Evidence Presented

       {¶14} In its judgment entry, the trial court found that, based upon the undisputed

evidence presented at trial, the jury’s verdict failing to award noneconomic

compensatory damages for pain and suffering was against the manifest weight of the

evidence where the jury determined appellant proximately caused the damages and

when the jury awarded appellee damages for medical expenses. We agree.

       {¶15} Appellant argues the jury awarded appellee damages to completely

compensate appellee for medical expenses and the jury had the discretion to award

appellee no damages for pain and suffering. Appellee argues because there was no

evidence contrary to his position that he experienced pain and suffering as a result of

the accident, the decision to award zero damages for pain and suffering was against the

manifest weight of the evidence and the trial court correctly granted the motion for a

new trial.

       {¶16} Where a substantial injury is sustained and there is unrefuted evidence of

pain and suffering, courts have found that an award for medical expenses without any

valuation for pain and suffering is against the manifest weight of the evidence. Garaux

v. Ott, 5th Dist. Stark No. 2009 CA 00183, 2013-Ohio-1895; Brozovic v. Grandjean, 5th

Dist. Stark No. 2005CA00151, 2005-Ohio-6950, Cooper v. Moran, 11th Dist. Lake No.

2010-L-141, 2011-Ohio-6847; Hardy v. Osborn, 54 Ohio App.3d 98, 560 N.E.2d 783

(8th Dist. 1988); Staley v. Allstate Property Cas. Ins. Co., 10th Dist. Franklin No. 12AP-
Guernsey County, Case No. 14 CA 12                                                     7

1085, 2013-Ohio-3424; Kubilus v. Owens, 12th Dist. Butler No. CA2007-03-065, 2008-

Ohio-3728; Couture v. Toldeo Clinic, Inc., 6th Dist. Lucas No. L-07-1277, 2008-Ohio-

5632. However, this Court also has found that where the evidence is contradicted

concerning the cause of the plaintiff’s complaints of pain, a $0 damage award for pain

and suffering does not require a new trial even when the jury awarded damages for

other things, such as medical expenses and/or lost wages.        See, e.g. Seymour v.

Pierson, 5th Dist. Stark No. 2005CA00218, 2006-Ohio-961; Chambers v. Jenkins, 5th

Dist. Stark No. 2007CA00131, 2008-Ohio-638 (verdict not against the weight of the

evidence where plaintiff’s testimony and medical notes were in contradiction and no

evidence was presented to differentiate between ongoing symptoms and possible

aggravation of preexisting conditions); Thomas v. Vesper, 5th Dist. Ashland No.

02COA20, 2003-Ohio-1856 (jury chose to give more weight to defense’s independent

medical exam).

      {¶17} Appellant cites to Seymour v. Pierson, 5th Dist. Stark No. 2005CA00218,

2006-Ohio-961 to support her argument. In Seymour, this Court upheld the trial court’s

entry denying a motion for new trial.       However, we find the facts in Seymour

distinguishable from those in this case. In Seymour, testimony at trial indicated the

appellant did not miss any school or work as a result of the accident, she did not

indicate she was injured or suffered any pain, told the police she was fine after the

accident, photographs showed only superficial damage to the vehicles, and between

her accident and her visit to the doctor, the appellant had another accident. This Court,

in the Seymor decision, specifically contrasted the Seymor case to Brozovic v.

Grandjean, 5th Dist. Stark No. 2005CA00151, 2005-Ohio-6950, in which appellant
Guernsey County, Case No. 14 CA 12                                                      8


testified he did not feel well immediately after the accident and there was undisputed

testimony that he was unable to resume his normal activities.

      {¶18} In Thomas v. Vesper, 5th Dist. Ashland No. 02COA20, 2003-Ohio-1856,

the other case cited by appellant in support of her argument, is also distinguishable from

this case as the court found the jury could have believed the testimony of the defense’s

expert about the pain and significance of the injuries. In this case, no expert contested

that appellee suffered a fractured kneecap and appellant conceded that appellee’s

medical treatment was reasonable and necessary.

      {¶19} We find this case analogous to that of Brozovic v. Grandjean, 5th Dist.

Stark No. 2005CA00151, 2005-Ohio-6950, an uncontested liability car accident case in

which a jury awarded medical expenses, but did not award any damages for pain and

suffering. In Brozovic, appellee presented only herself as a witness for the defense,

appellant testified that immediately after the accident he did not feel well but refused

treatment at the scene, appellant went to physical therapy, and there was testimony that

appellant was unable to resume normal activities. This Court found that, because of the

unrefuted evidence of appellant’s physical discomfort resulting in treatment with a

chiropractor, physical therapy, and MRI, there was sufficient credible evidence to award

a sum for pain and suffering. Id.

      {¶20} Similarly, in this case, appellee testified that, after the crash, he had

intense pain in his leg. Hours later, appellee sought treatment at the emergency room

and the medical records indicate that appellee went to the emergency room with the

admitting diagnosis of “right leg pain” and his chief complaint was noted to be “severe

pain in right knee.” Medical records from three days after the accident indicate that
Guernsey County, Case No. 14 CA 12                                                        9


appellee returned to the emergency room for a follow-up and stated he had “severe pain

in the knee” and he was “not able to bear weight.” Records from appellee’s treating

orthopedic surgeon indicate that appellee had moderate right knee pain on May 27,

2010 and continued to wear a knee brace into June and July of 2010. Medical records

from appellee’s physical therapy provide that appellee had joint pain of the knee at the

end of June of 2010 and his knee was immobilized in an extension.

        {¶21} Both appellee and Knox testified the injury interfered with appellee’s ability

to perform his usual activities. Dr. Stearns, who performed an independent medical

examination on appellee, testified that appellee fractured his right kneecap and had

bruised cartilage under the right kneecap.       Further, that the car crash caused the

injuries to appellee’s right knee. Stearns testified that these types of injuries can keep

appellee from doing activities of daily living and hobbies.         According to Stearns,

appellee needed crutches for several weeks due to the pain of the injury and

subsequently had braces for his knee. The photographs submitted by appellee into

evidence show the hard impact the crash caused between the vehicles.              Appellant

presented no evidence that contested that the May 2010 car accident caused the injury

claimed by appellee or that the injury was not substantial. Appellant did not have any

medical testimony to refute appellee’s expert’s opinion. There was no evidence that

appellee ever suffered a similar injury or complained of similar symptoms prior to the

accident. Accordingly, there was undisputed evidence that the injuries to appellee’s

right knee were painful and had an impact on his ability to participate in normal

activities.
Guernsey County, Case No. 14 CA 12                                                        10


       {¶22} “Damages for pain and suffering should be awarded if the evidence

demonstrates that pain and suffering occurred.” Cooper v. Moran, 11th Dist. Lake No.

2010-L-141, 2011-Ohio-6847. There was obvious and uncontroverted evidence that

appellee experienced pain and suffering as a result of the accident.           The jury, in

rendering its verdict, consequently failed to include all the elements of damage making

up appellee’s claim. The jury’s award reimbursing appellee for only economic damage,

without at least some pain and suffering, was therefore “so manifestly contrary to the

natural and reasonable inference to be drawn from the evidence as to produce a result

in complete violation of substantial justice.” Farkas v. Detar, 126 Ohio App.3d 795, 711

N.E.2d 703 (9th Dist. 1998). Accordingly, based upon the evidence and testimony at

trial, we find the trial court did not abuse its discretion when it granted appellee’s motion

for a new trial.

                                       R.C. 4513.263(F)(1)

       {¶23} In its judgment entry granting new a trial, in addition to finding the jury’s

decision to be manifestly against the weight of the evidence, the trial court additionally

completed a statutory interpretation analysis of R.C. 4513.263(F)(1) and found that a

jury was not permitted to completely deny appellee damages for pain and suffering as

the statute provides the award may be “diminished,” not “denied.” Appellant argues that

since the jury was given the instruction found in R.C. 4513.263(F)(1), the jury must have

utilized this instruction to deny appellee damages for pain and suffering and encourages

this Court to conduct a de novo interpretation of the statute and find that a jury is

entitled to completely deny noneconomic compensatory damages pursuant to R.C.

4513.263(F)(1). However, based upon the award of the jury, it is not clear that they
Guernsey County, Case No. 14 CA 12                                                         11


utilized R.C. 4513.263(F)(1) to diminish or deny damages as they awarded $0 for both

noneconomic damages and future economic damages. R.C. 4513.263(F)(1) allows for

the reduction in only noneconomic damages.            Due to this lack of clarity and our

disposition regarding the manifest weight of the evidence argument as discussed

above, we find any analysis regarding R.C. 4513.263(F)(1) premature.

                                      New Trial on Damages

       {¶24} Appellant argues, as part of her first assignment of error, that the trial

court should have limited the new trial to noneconomic compensatory damages only.

       {¶25} A trial court that grants a Civil Rule 59(A) motion is authorized to order a

retrial on any or all of the issues determined by the judgment entered on the jury’s

verdict. The trial court has broad discretion to order a retrial on all or part of the issues.

Drehemer v. Fylak, 2nd Dist. Montgomery No. 20635, 2005-Ohio-4732. However, the

trial court’s exercise of that authority “is subject to the continuing requirement of

reasonableness” and a failure to act reasonably in that regard is an abuse of discretion.

AAA Ent. v. Riber Place Community, 50 Ohio St.3d 157, 553 N.E.2d 597 (2006).

       {¶26} In this case, appellee, in his motion for a new trial, requested a new trial

on “the issues of damages,” which the trial court granted. When issues are intertwined

and when there is potential for redundant and cyclical appeals, a new trial on one issue

or claim reasonably supports a retrial of the other claims or issues as well. Drehmer v.

Fylak, 2nd Dist. Montgomery No. 20635, 2005-Ohio-4732; Cooper v. Moran, 11th Dist.

Lake No. 2010-L-141, 2011-Ohio-6847. Based upon the facts presented in this case,

we find the trial court did not abuse its discretion in granting a new trial as to damages.
Guernsey County, Case No. 14 CA 12                                                  12

See Staley v. Allstate Property Cas. Ins. Co., 10th Dist. Franklin No. 12AP-1085, 2013-

Ohio-3424.

      {¶27} Based upon the foregoing, appellant’s assignment of error is overruled.

The May 9, 2014 judgment entry of the Guernsey County Court of Common Pleas is

affirmed.

By Gwin, J.,

Hoffman, P.J., and

Wise, J., concur
