Wise v. Timmons - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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OPINIONS OF THE SUPREME COURT OF OHIO
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Wise, Admr., Appellant and Cross-Appellee, v. Timmons,
Admx., Appellee and Cross-Appellant.
[Cite as Wise v. Timmons (1992), Ohio St.3d .]
Negligence -- Motor vehicle accident -- Trial court errs in
granting motion for directed verdict, when -- Evidence
construed, how -- Negligence never presumed -- Action for
wrongful death -- Next of kin, although not presumed to
have sustained damages, may recover damages for mental
anguish and loss of society upon proper proof.
(No. 91-601 -- Submitted February 19, 1992 -- Decided June
24, 1992.)
Appeal and Cross-Appeal from the Court of Appeals for
Pickaway County, No. 89CA14.
On June 4, 1986, plaintiff's decedent Terry Wise, a
disabled twenty-one-year-old who lived with his father, brother
Scott and sister Vicki, was a passenger in a motor vehicle
being driven by David Timmons. The vehicle went left of
center, struck a guardrail, recrossed and left the roadway, hit
an embankment and became airborne for forty-three feet, turned
over three times and landed on its wheels, travelling
approximately six hundred seventy feet. Terry Wise was killed
immediately and David Timmons died in the hospital shortly
after the accident. Terry's father Clayton Wise, in his
capacity as administrator of Terry's estate, brought suit under
Ohio's wrongful death statute, R.C. Chapter 2125, against David
Timmons's estate for damages on his own behalf and on behalf of
Terry's brother Scott and his sisters Pamela and Vicki.
Clayton Wise died before trial and Charles Wise was substituted
as administrator.
Before trial the parties stipulated that the accident
caused the death of Terry Wise. At trial the investigating
officer, Sergeant Harold G. Hopkins, a deputy sheriff for the
Pickaway County Sheriff's Department, testified as to his
investigation of the accident. He said the accident was caused
because the vehicle was out of control. He was not asked for
an opinion as to why the vehicle went out of control. Sergeant
Hopkins was able to locate and interview two eyewitnesses who
had observed part of the accident, but had not seen what caused
the accident and were not called as witnesses at trial.

At the close of the evidence, the trial court granted
plaintiff's motion for a directed verdict on the issue of
negligence only. According to the trial court, this left two
questions for the jury: whether David Timmons's negligence was
the proximate cause of the death of Terry Wise and, if so, the
amount of damages. The trial court instructed the jury that
loss of support, loss of services, loss of society and mental
anguish were proper elements of the damages, as well as
reasonable burial expense. Counsel for defendant objected to
the instruction that next of kin, in this case siblings, might
recover for loss of society and mental anguish. The jury sent
out one question during deliberations: "Does the law require
the jury to find a minimum dollar value (other than funeral
expenses) for compensation?" The trial court answered "No."
The jury subsequently returned a verdict finding the issues in
plaintiff's favor and assessed damages in the amount of
$3,260.32, funeral expenses only.
Pursuant to Civ.R. 59, plaintiff moved for a new trial and
the trial court, in a written opinion, stated: "The Court***is
of the opinion that the damages awarded in this case are
inadequate and are not sustained by the weight of the evidence
and is [sic] contrary to law and, therefore, said motion for
new trial will be granted and ordered in this case."
Defendant appealed, assigning four errors, three of which
are pertinent to this appeal:
"I. The trial court erred in granting plaintiff a new
trial on the basis that the jury's verdict and damages awarded
in the case are inadequate and not sustained by the weight of
the evidence.
"II. The trial court erred in admitting evidence of
damages allegedly sustained by the surviving siblings of
plaintiff's decedent.
"III. The trial court erred in directing a verdict upon
the issue of negligence and liability against defendant."
The Court of Appeals for Pickaway County concluded that
the evidence was insufficient to submit the issue of loss of
support to the jury. Sustaining defendant's second assignment
of error, the court held that the jury should not have
considered whether next of kin (here, siblings) suffered
damages for loss of society and mental anguish. It was
therefore an abuse of discretion for the trial court to order a
new trial on those issues. The court found, however, that it
was against the manifest weight of the evidence to conclude
that Terry Wise's services had no value, and a new trial on
that issue was proper. Defendant's first assignment of error
was therefore sustained in part and overruled in part.
As to the third assignment, the appellate court held that
it was error for the trial court to direct a verdict for
plaintiff on the negligence issue. The court stated that the
only evidence of negligence adduced was the accident itself,
and that in the absence of evidence of acts and omissions on
David Timmons's part, there must be a presumption of due care.
The trial court's judgment was affirmed in part and reversed in
part, and the cause was remanded for further proceedings
consistent with the opinion. Plaintiff appealed and defendant
cross-appealed on the issue of the necessity for a new trial on
the matter of damages for loss of services.

The case is before us on the allowance of a motion and
cross-motion to certify the record.

Gary R. Dumm and Stephen E. Carter, for appellant and
cross-appellee.
Fosson, Mann & Preston and Mark A. Preston, for appellee
and cross-appellant.

Herbert R. Brown, J. The issues before us are, first,
whether the trial court erred in directing a verdict for
plaintiff on negligence; second, whether siblings may recover
damages for loss of society and mental anguish under R.C.
2125.02(B)(3) and (5) when a spouse, minor child or parent
survives the decedent; and third, whether the trial court
abused its discretion in ordering a new trial because the
verdict was inadequate and against the manifest weight of the
evidence.
For the reasons that follow, we conclude that the trial
court erred in directing the verdict on negligence. For that
reason a new trial must be held on all issues. For the trial
court's direction on remand, we also reach the second issue,
holding that the jury was properly instructed as to damages for
loss of society and mental anguish. We need not decide whether
the trial judge abused his discretion in setting aside the jury
verdict and ordering a new trial, since that determination is
fact-specific and, on remand, there will be new evidence, and
new findings by the jury.
I
Directed Verdict
The only evidence in the record offered to prove that
David Timmons was negligent is the accident's occurrence under
circumstances from which an inference of negligence can be
drawn. Those circumstances include the vehicle traveling left
of center, leaving skid marks totalling three hundred
eighty-nine feet, traveling airborne for forty-three feet, and
turning over three times. Although Sergeant Hopkins did not
offer his opinion as to the cause of the vehicle's loss of
control, from these circumstances the jury could have inferred
that David Timmons was traveling at an excessive rate of
speed. The only living eyewitnesses to the accident did not
see the automobile until after it went out of control. The
only other witnesses who might have been in a position to know
what happened, Terry Wise and David Timmons, are dead. No
evidence was adduced on the following issues: (1) whether the
vehicle was free from defect, (2) whether the driver suffered a
medical condition causing the loss of control, or (3) whether
the driver was reacting to an emergency.
The trial court's ruling amounts to a presumption that
when a car goes off the road, in the absence of evidence to the
contrary, there has been negligence. The presumption in Ohio
is the opposite. "Negligence is never presumed. In an action
based on negligence, the presumption exists that each party was
in the exercise of ordinary care and such presumption prevails
until rebutted by evidence to the contrary." Biery v.
Pennsylvania RR. Co. (1951), 156 Ohio St. 75, 45 O.O. 70, 99
N.E.2d 895, paragraph two of the syllabus. The rule applies
where the accident itself is the only evidence of negligence

adduced. "Where the doctrine of res ipsa loquitur is not
involved, negligence is never presumed from the mere fact of an
accident and resulting injury, but specific acts or omissions
indicating failure on the part of the defendant to exercise due
care must be alleged as the direct and proximate cause of the
injury, and the burden is upon the plaintiff to prove the
same." St. Marys Gas Co. v. Brodbeck (1926), 114 Ohio St. 423,
151 N.E. 323, paragraph one of the syllabus. This is also true
where no eyewitnesses survive. "* * * Death has removed the
one witness in the most favored position to explain the
decedent's action at the time of the accident. Frequently, no
other witness is available. Under such circumstances, it would
seem to be sound policy to consider the decedent free from
negligence until the trier of the facts has passed upon the
credibility of the witnesses, accepted their testimony as
worthy of belief and then determined whether the decedent's
conduct as thus established conformed to the standard of
reasonable care." Irwin v. Albers Super Markets, Inc. (App.
1950), 63 Ohio Law Abs. 77, 80, 108 N.E.2d 356, 358.
A motion for a directed verdict requires the trial court
to construe the evidence most strongly in favor of the party
against whom the motion is directed, and to sustain the motion
only if reasonable minds could come to but one conclusion,
adverse to that party, upon the evidence submitted. Civ. R.
50(A)(4). There is not sufficient evidence in this record to
overcome, as a matter of law, the presumption that David
Timmons exercised due care. The facts, however, do permit an
inference of negligence. The question of negligence was one
for the jury.
Plaintiff, urging support for the trial court's ruling,
compares this case to one in which res ipsa loquitur applies.
But the doctrine of res ipsa loquitur does not remove the
question from the jury. "The rule of res ipsa loquitur is not
a substantive rule of law. It is rather a rule of evidence
which permits the jury, but not the court in a jury trial, to
draw an inference of negligence where the instrumentality
causing the injury is under the exclusive management and
control of one of the parties and an accident occurs under
circumstances where in the ordinary course of events it would
not occur when ordinary care is observed. * * *" (Emphasis
added.) Glowacki v. North Western Ohio Ry. & Power Co. (1927),
116 Ohio St. 451, 157 N.E. 21, paragraph one of the syllabus.
"[N]ever under any circumstances may it become the ground for a
directed verdict." St. Marys Gas Co., supra, 114 Ohio St. at
433, 151 N.E. at 326.
It was therefore error for the trial court to direct the
jury to find that David Timmons was negligent. This error
requires a new trial.
II
Siblings' Recovery of Damages
Plaintiff argues that under the pertinent language of
the Ohio wrongful death statute, R.C. 2125.02(B)(3) and (5),
next of kin may collect damages for mental anguish and loss of
society when a spouse, minor child or parent survives. Under
defendant's theory, since Clayton Wise survived his son's
death, his son's siblings may not recover.
This issue has been resolved by our recent decision in

Ramage v. Central Ohio Emergency Serv., Inc. (1992), Ohio
St.3d , N.E.2d . "Pursuant to the Ohio wrongful
death statute, R.C. 2125.02, next of kin, although not presumed
to have sustained damages, may recover damages for mental
anguish and loss of society upon proper proof thereof, even
though there is a surviving parent, spouse, or minor
children." Id. at paragraph two of the syllabus. Thus, it was
not improper for the trial court to instruct the jury to
consider the mental anguish and loss of society, if any,
suffered by Pamela, Vicki and Scott Wise on the occasion of
Terry's death.
For all the foregoing reasons, we remand this cause to the
trial court for further proceedings consistent with this
opinion.
Judgment affirmed in part
and reversed in part.
Moyer, C.J., Sweeney, Douglas, Wright and Resnick, JJ.,
concur.
Holmes, J., concurs separately.
Holmes, J., concurring. I am in full agreement with the
majority's disposition of the issue of the trial court's
directing a verdict on negligence. However, I continue to have
a considerable problem with the issue of sibling recovery of
damages for mental anguish under Ohio's wrongful death
statute. This was not the intent of the statute, but by virtue
of this court's majority holding in Ramage v. Central Ohio
Emergency Serv., Inc. (1992), Ohio St.3d ,
N.E.2d , I am forced, by way of stare decisis, to join the
majority on this issue.