[Cite as Griffith v. Veale, 2008-Ohio-5704.]
SHARON K. GRIFFITH, et al.
Appellants
v.
SHIRLEY C. VEALE
Appellee
C. A. No. 24036
APPEAL FROM JUDGMENT
ENTERED IN THE
COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
CASE No. CV 2005 12 7494
DECISION AND JOURNAL ENTRY
Dated: November 5, 2008
Per Curiam.
{¶1} Plaintiff Sharon K. Griffith has appealed from the order of the Summit County
Common Pleas Court denying her motion for a new trial. This Court affirms.
I
{¶2} Ms. Griffith was a passenger in a minivan driven by her husband when it collided
with a car driven by defendant Shirley C. Veale. According to her husband, son, and daughter,
Ms. Griffith lost consciousness immediately after the collision. She was conscious, however,
when emergency medical personnel arrived at the scene and complained to them about numbness in her left arm, as well as neck and back pain. At some point while she was being attended by the emergency medical personnel, she lost consciousness or fainted for approximately 30 seconds. The emergency medical personnel put a cervical collar on her and took her to Akron General Medical Center.
{¶3} At the hospital, Ms. Griffith again complained about numbness in her left arm.
She was admitted and spent four days in the hospital, complaining about fainting, back pain, leg
pain, and left arm numbness.
{¶4} Over the next 3½ years, Ms. Griffith was treated by a physiatrist, a chiropractor,
and a neurologist, as well as by her primary care physician, for conditions allegedly related to the
automobile collision. Those conditions included traumatic brain injury, an abrasion of the right
side of her scalp, weakness of the left shoulder and left hand, aggravation of a previous lumbar
spinal stenosis, and neck pain.
{¶5} Ms. Griffith and her husband sued Ms. Veale for Ms. Griffith’s alleged injuries
and her husband’s alleged loss of consortium. Ms. Veale conceded liability for any damages
caused by the collision. The jury before whom this matter was tried returned a verdict awarding
Ms. Griffith no damages, and she and her husband moved for a new trial under Rule 59(A)(6) of
the Ohio Rules of Civil Procedure, arguing that the jury’s verdict was against the manifest
weight of the evidence. The trial court denied their motion, and they have appealed to this Court.
II
Assignment of Error
“The Trial Court abused its discretion in denying Appellants’ Motion for New
Trial where Appellee’s and Appellants’ experts testified that Appellant sustained
injuries as a proximate result of Appellee’s negligence and where Appellants’
medical records also provided unrefuted evidence that she sustained injuries.”
{¶6} In their sole assignment of error, the Griffiths argue that the trial court incorrectly
denied their motion for a new trial. We disagree.
{¶7} “When an appellate court reviews the grant or denial of a motion for a new trial as
against the weight of the evidence, the appellate court does not directly review whether the
judgment was against the manifest weight of the evidence.” Brown v. Mariano, 9th Dist. No.
05CA008820, 2006-Ohio-6671, at ¶5 (quoting Snyder v. Singer, 9th Dist. No. 99CA0020, 2000
WL 631981, at *3 (May 17, 2000)). Rather, this Court “reviews the [trial] court’s decision on
that matter for an abuse of discretion.” Id. This Court recently described the trial court’s
function in determining whether to grant a motion for new trial based on the weight of the
evidence: A trial judge should “abstain from interfering with the verdict unless it is quite
clear that the jury has reached a seriously erroneous result.” “[I]t is the function
of the jury to assess the damages, and generally, it is not for a trial or appellate
court to substitute its judgment for that of the trier-of-fact.” “Where a verdict is
supported by competent substantial and apparently credible evidence, a motion
for new trial will be denied.”
Petryszak v. Greegor, 9th Dist. No. 07CA0076, 2008-Ohio-4776 at ¶8 (citations omitted).
{¶8} In denying Ms. Griffith’s motion for a new trial, the trial court wrote that “[t]he
sole question put to the jury was what, if any, of Plaintiff’s injuries were proximately caused by
Defendant’s negligence.” It noted that, although Ms. Veale “did not refute Plaintiff’s claim that
she suffered some injury as a result of the accident,” the jury was still entitled to completely
reject the Griffiths’ claim: “Negligence may occur without causing any personal injuries.”
{¶9} The trial court recited some of the evidence the Griffiths presented in support of
Ms. Griffith’s claimed injuries. It also noted, however, that, while a neurologist who testified on
behalf of Ms. Veale acknowledged that Ms. Griffith had “probably suffered some soft tissue
injury” in the collision, he “could find nothing at all with this lady objectively that [he] felt was
related to this accident.” It further noted that a psychologist who testified on behalf of Ms. Veale
opined that Ms. Griffith had “intentionally produced false or exaggerated symptoms—
exaggerating her head injury and the impact on her functional abilities.” The court pointed out
that, according to the defense psychologist, Ms. Griffith’s scores on tests administered to her
“were consistent with a severe dementia functioning level, which obviously put them in doubt.”
{¶10} The trial court also noted that, while Ms. Griffith claimed very limited ability to
use her left arm and hand, Ms. Veale presented a surveillance video that contradicted Ms.
Griffith’s claim. “It showed Plaintiff carrying packages, getting into the driver’s seat of a car
without any help, pulling her seat belt on, shutting the car door—all activities that she claimed
she could not do as a result of the injuries she received from the accident.”
{¶11} The trial court, in its opinion, concluded that “there was competent, credible
evidence presented to the jury which supports its finding that Plaintiff was not injured in the
accident.” Inasmuch as it supported that conclusion by reciting evidence in the record tending to
prove that Ms. Griffith’s claimed injuries were non-existent, this Court cannot conclude that it
abused its discretion by denying her motion for a new trial. Ms. Griffith’s assignment of error is
overruled.
III
{¶12} Ms. Griffith’s assignment of error is overruled. The judgment of the Summit
County Common Pleas Court is affirmed.
Judgment affirmed.
LYNN C. SLABY
FOR THE COURT
SLABY, P. J.
WHITMORE, J.
CONCUR
DICKINSON, J.
DISSENTS, SAYING:
{¶13} In State v. Wilson, 113 Ohio St. 3d 382, 2007-Ohio-2202, the Ohio Supreme
Court held that, if a trial court’s judgment in a civil case is “supported by some competent,
credible evidence going to all the essential elements of the case,” an appellate court is not
authorized to reverse the judgment “as being against the manifest weight of the evidence.” Id. at
¶24 (quoting C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St. 2d 279, syllabus (1978)). In
other words, in determining whether a decision in a civil case is supported by the weight of the
evidence, an appellate court is not permitted to weigh the evidence. I have written elsewhere
about the problems I see with the decision in Wilson. Huntington Nat’l Bank v. Chappell, 9th
Dist. No. 06CA008979, 2007-Ohio-4344, at ¶17-75 (Dickinson, J., concurring).
{¶14} In ruling on Ms. Griffith’s motion for a new trial in this case, the trial court
applied the “competent, credible evidence” test adopted in Wilson. In affirming, the majority has
approved the trial court’s use of that test. Because I do not believe the Wilson decision should be
extended to prohibit trial judges from weighing the evidence when a party moves for a new trial
under Rule 59(A)(6) of the Ohio Rules of Civil Procedure, I would reverse and remand for the
trial court to weigh the evidence and determine whether the jury’s verdict was a manifest
injustice.
{¶15} In Rohde v. Farmer, 23 Ohio St. 2d 82 (1970), the Ohio Supreme Court
considered the test a trial judge should apply in determining whether to grant a motion for new
trial under then Section 2321.17(F) of the Ohio Revised Code, the statutory predecessor of Rule
59(A)(6). Section 2321.17(F) authorized a trial court to grant a new trial if a jury’s verdict was
“not sustained by sufficient evidence.” Rohde, 23 Ohio St. 2d at 90-91. Under Ohio law, at least
in criminal cases, the legal concepts of “sufficiency of the evidence” and “weight of the
evidence” are now “quantitatively and qualitatively different.” State v. Thompkins, 78 Ohio St.
3d 380, 386 (1997). As explained by Supreme Court in Rohde, however, the phrase “sufficient
evidence,” as used by the legislature in Section 2321.17(F), was synonymous with what we
would now term, at least in a criminal case, manifest weight: “[T]he language of R.C. §
2321.17(F), ‘sustained by sufficient evidence,’ does not mean merely sufficient evidence to
compel the submission of the case to the jury, but means sufficient, in the opinion of the trial
court, to conclude as a matter of fact that the judgment is not against the weight of the evidence.” Rohde, 23 Ohio St. 2d at 92. The Supreme Court further explained the test a trial judge should apply in determining whether the jury’s verdict is supported by the weight of the evidence: “[T]he trial court, in determining such question, must review the evidence and pass on the credibility of the witnesses; not in the substantially unlimited sense that such weight and
credibility is passed on originally by the jury, but in the more restricted sense of whether it
appears to the trial court that a manifest injustice has been done, and that the verdict is against
the manifest weight of the evidence.” Id. at 92.
{¶16} In Rohde, the Supreme Court also explained that, in considering the weight of the
evidence, a trial judge is required to exercise discretion: “A motion for a new trial with reference
to the weight or sufficiency of the evidence is addressed to the sound discretion of the trial court
and imposes upon that court a duty to review the evidence and pass upon the credibility of
witnesses.” Rohde, 23 Ohio St. 3d at 90 (quoting Berry v. Roy, 172 Ohio St. 422, 424 (1961)). It
further explained that, when a trial judge exercises his or her discretion and grants a new trial
based on the weight of the evidence, an appellate court, in determining whether the trial judge
has abused that discretion, should view the evidence most favorably to the judge’s action rather
than to the jury’s verdict: “This rule of appellate review is predicated, in part, upon the principle
that the discretion of the trial judge in granting a new trial on the weight of the evidence may be
supported by his having seen and heard the witnesses and having formed a doubt as to their
credibility, or having determined from the surrounding circumstances and atmosphere of the
trial, that the jury’s verdict resulted in manifest injustice.” Id. at 94 (citing Mooney v. Carter,
160 P.2d 390, 391 (Colo. 1945)).
{¶17} In Malone v. Courtyard by Marriott, 74 Ohio St. 3d 440 (1996), the Ohio
Supreme Court reviewed a case in which an appellate court reversed a trial judge’s grant of a
new trial under Rule 59(A)(6). The Supreme Court reiterated that an appellate court’s standard
of review when considering a trial judge’s ruling on a new trial based on the weight of the
evidence is abuse of discretion and again explained: “This deference to a trial court’s grant of a
new trial stems in part from the recognition that the trial judge is better situated than a reviewing court to pass on questions of witness credibility and the ‘surrounding circumstances and atmosphere of the trial.’” Id. at 448 (quoting Rohde, 23 Ohio St. 2d at 94). The Supreme Court concluded that the trial judge had not abused his discretion in granting a new trial in that case and that, therefore, the appellate court had incorrectly reversed the trial court’s order doing so: “A reasonable person confronted by such a set of facts could validly conclude that the jury’s verdict for [plaintiff] was against the manifest weight of the evidence.” Id. at 449.
{¶18} As I noted at the outset, in State v. Wilson, 113 Ohio St. 3d 382, 2007-Ohio-2202,
the Ohio Supreme Court held that, when an appellate court is itself asked to reverse a trial court’s judgment in a civil case based on the weight of the evidence, the appellate court is not permitted to weigh the evidence. In discussing what it termed the “civil manifest-weight-of-the-evidence standard,” the Supreme Court, in Wilson, among other things, wrote that an appellate court applying that standard “has an obligation to presume that the findings of the trier of fact are correct,” and explained that “[t]his presumption arises because the [trier of fact] had an
opportunity ‘to view the witnesses and observe their demeanor, gestures and voice inflections,
and use these observations in weighing the credibility of the proffered testimony.’” Id. at ¶24
(quoting Seasons Coal Co. Inc. v. Cleveland, 10 Ohio St. 3d 77, 80 (1984)). This is nearly
identical to the reason given by the Supreme Court in Malone and Rohde for the requirement that an appellate court, when reviewing a trial judge’s grant of a new trial based on the weight of the evidence, view the evidence most favorably to the trial judge’s action rather than to the jury’s original verdict. To the extent that the superior vantage point of the trier of fact is a ground for the Supreme Court’s holding in Wilson that an appellate court called upon to review the weight of the evidence in a civil case is not permitted to weigh the evidence, that ground does not apply when a trial judge is asked to grant a new trial under Rule 59(A)(6).
{¶19} In Malone, the Supreme Court noted that the purpose of an order for a new trial
under Rule 59(A)(6) “is to prevent ‘miscarriages of justice which sometimes occur at the hands
of juries,’ by presenting the same matter to a new jury.” Malone, 74 Ohio St. 3d at 448. Requiring a trial judge asked to grant a new trial under Rule 59(A)(6) to apply the “competent,
credible evidence” test, which, as the Supreme Court noted in Wilson, “tends to merge the
concepts of weight and sufficiency,” destroys the trial court’s ability to prevent such
“miscarriages of justice.” Wilson, 2007-Ohio-2202, at ¶26.
{¶20} I would not extend the holding in Wilson to require trial judges asked to grant a
new trial under Rule 59(A)(6) to apply the “competent, credible evidence” test, thereby requiring them to refrain from exercising their discretion by weighing the evidence that was before the jury. Rather, I would reiterate that the proper procedure for a trial judge called upon to consider a motion for new trial under Rule 59(A)(6) is the procedure described by the Supreme Court in Rohde: “[W]here there is a motion for a new trial upon the ground that the judgment is not sustained by [the weight of the] evidence, a duty devolves upon the trial court to review the evidence adduced during the trial and to itself pass upon the credibility of the witnesses and the evidence in general. It is true that, in the first instance, it is the function of the jury to weigh the evidence, and the court may not usurp this function, but, when the court is considering a motion for a new trial upon the [weight] of the evidence, it must then weigh the evidence. A court may not set aside a verdict upon the weight of the evidence upon a mere difference of opinion between the court and jury. . . . But, where a court finds a judgment on a verdict manifestly against the weight of the evidence, it is its duty to set it aside.” Rohde, 23 Ohio St. 2d at 92 (quoting Poske v. Mergl, 169 Ohio St. 70, 73-74 (1959) (internal citations omitted)).
{¶21} In Antal v. Olde Worlde Prods. Inc., 9 Ohio St. 3d 144, syllabus (1984), the
Supreme Court held that, when a trial court grants a motion for new trial based on the weight of
the evidence, it “must articulate the reasons for doing so in order to allow a reviewing court to
determine whether the trial court abused its discretion in ordering a new trial.” As noted by the
majority, the trial judge in this case filed a six page opinion explaining her denial of Ms.
Griffith’s motion for a new trial. Review of that opinion reveals that, rather than exercising her
discretion to weigh the evidence and determine whether the jury’s verdict was “manifestly
against the weight of the evidence,” she restricted her review to a determination that the jury’s
verdict was supported by “competent, credible evidence.” Accordingly, I would reverse the trial
court’s denial of Ms. Griffith’s motion for a new trial and remand for the trial judge to weigh the
evidence and determine whether the jury’s verdict was “manifestly against the weight of the
evidence.”
{¶22} I note that the majority’s approval of the trial judge’s use of the “competent,
credible evidence” test in this case conflicts with the decision of the First District Court of
Appeals in Green v. Bailey, 1st Dist. No. C-070221, 2008-Ohio-3569, at ¶12 (“In determining
whether a verdict is manifestly against the weight of the evidence as provided in Civ.R.
59(A)(6), ‘the [trial] court must review the evidence and pass on the credibility of the witnesses;
not in the substantially unlimited sense that such weight and credibility are passed on originally
by the jury, but in the more restricted sense of whether is appears to the trial court that a manifest injustice has been done, and that the verdict is against the manifest weight of the
evidence.’”)(quoting Rohde v. Farmer, 23 Ohio St. 2d 82, paragraph three of the syllabus) and
with the decision of the Second District Court of Appeals in Stephenson v. Upper Valley Family
Care Inc., 2d Dist. No. 07CA12, 2008-Ohio-2899, at ¶74 (“[T]he [trial] court must review the
evidence and pass in a limited way on the credibility of the witnesses.”). See App. R. 25.
APPEARANCES:
ROBERT J. VECCHIO, and ANTHONY J. VEGH, Attorneys a Law, for appellants.
DAVID G. UTLEY, Attorney at Law, for appellee.
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