Summary
In Schellhouse, we held that "in a civil action for tort or wrongful death, a finding by the jury that a plaintiff (or plaintiffs decedent) was comparatively negligent will not defeat or diminish the recovery of damages where the defendant's intentional tort, committed with actual malice, proximately caused the injury."
Summary of this case from Niskanen v. Giant EagleOpinion
No. 90-1513
Submitted April 10, 1991 —
Decided August 21, 1991.
APPEAL from the Court of Appeals for Erie County, No. E-89-8.
On June 27, 1984, Victoria A. Vick left work at about 11:30 a.m. to drive home for lunch. Her route home took her north on Douglas Street across the railroad tracks maintained by defendant-appellee, Norfolk Western Railway Company.
From a point one hundred feet from the tracks, Douglas Street, northbound, inclines approximately five feet up to the rails. The rails bisect Douglas Street from the southwest at an angle of sixty-eight degrees. As a driver going north on Douglas Street approaches the tracks, the driver passes a stop sign on the right-hand side approximately forty-five feet from the tracks. Then the driver passes a crossbuck sign, indicating a railroad crossing, approximately twenty-seven feet from the tracks.
Trees and shrubs obstructed the view motorists had of the tracks for trains coming from the east. An unobstructed view of the tracks to the east did not begin until a motorist drew within ten feet of the tracks.
Shortly after 11:30 a.m. on June 27, 1984, while attempting to cross the tracks at the Douglas Street crossing, Vick's automobile was struck by a freight train coming from the east. Vick died as a result of the collision.
The railroad crossing had no flashing lights or gates which would have been activated by an approaching train. Prior to the accident Vermilion city officials had attempted to convince defendant that such warning devices should be installed at the Douglas Street crossing.
On November 5, 1985, plaintiff-appellant, Thelma L. Schellhouse, in her capacity as administratrix of the estate of Victoria A. Vick, instituted the present action in the Erie County Court of Common Pleas against defendant and Omer H. Fox (the engineer on the train involved in the collision and now deceased), alleging that their negligent, reckless or intentional acts were the proximate cause of the personal injuries and wrongful death of the decedent.
During trial the defense presented Sergeant Keith V. Clipson, the first police officer to reach the scene of the accident. On redirect examination Clipson testified that had Vick survived the collision he would have cited her. This testimony contravened a prior ruling by the trial judge. Plaintiff's counsel objected. The objection was sustained and the jury was admonished to disregard the testimony.
During the trial, defendant sought to conduct a demonstration of the sound of the horn employed by the locomotive involved in the collision. Plaintiff objected on the basis that the conditions surrounding the demonstration lacked substantial similarity to the conditions existing at the time of the collision. The trial judge overruled the objection. She instructed the jury prior to the demonstration that "* * * you must observe the conditions under which the test is made, the conditions existing for the test may or may not duplicate the conditions and other circumstances which existed at the time of the incident. This is a question of fact which you must decide from the evidence. It is for you also to decide what weight you will give to the test and to what extent you will apply it to the facts * * *."
At the close of the evidence, defendant made three motions for a directed verdict. The first sought a directed verdict on the issue of decedent's contributory negligence. The second sought a directed verdict regarding the claim of plaintiff predicated upon pain and suffering sustained by the decedent. The third was based on the contention that no evidence supported a finding that the actions of defendant's agents were committed with actual malice. The trial court denied the first and third motions but granted the second, concluding that there was no evidence that the decedent survived the collision and thus no evidence of pain and suffering.
On November 12, 1987, the case was submitted to the jury. The court submitted the case through a series of interrogatories without also including a request for a general verdict. On November 13, 1987, the jury returned the following answers to the interrogatories:
"INTERROGATORY NO. 1"What is the total monetary amount which you find by a preponderance of the evidence, will fairly compensate the Estate of Victoria A. Vick for the death of Victoria A. Vick?
"State the amount in dollars $316,000.00
"*In making this determination you will disregard the negligence of any party.
"INTERROGATORY NO. 2"Do you find by a preponderance of the evidence that Norfolk and Western Railway Company was negligent and that its negligence was a proximate cause of Victoria A. Vick's death?
"Answer `YES' or `NO' Yes
"INTERROGATORY NO. 3"Do you find by a preponderance of the evidence that Victoria A. Vick was negligent and that her negligence was a proximate cause of her own death?
"Answer `YES' or `NO' Yes
"INTERROGATORY NO. 4"What is the percentage of negligence, if any, that you find by a preponderance of the evidence directly and proximately caused the death of Victoria A. Vick that is attributable to each of the parties?
"Norfolk and Western Railway Company^8^35% "Estate of Victoria A. Vick^19^65% "TOTAL^21^100%
"* * *
"Do you find by a preponderance of the evidence that the actions or inactions of Defendant, Norfolk and Western Railway Company, constituted actual malice toward Victoria A. Vick?
"Answer `YES' or `NO' Yes"
Upon these interrogatory answers, the trial court entered judgment "in favor of the Estate of Victoria A. Vick in the amount of One Hundred Ten Thousand, Six Hundred Dollars ($110,600.00), or thirty-five percent (35%) of the jury award of Three Hundred Sixteen Thousand Dollars ($316,000.)"
On February 2, 1989, plaintiff appealed to the Sixth District Court of Appeals. Defendant filed a cross-appeal on February 10, 1989. On June 18, 1990, the court of appeals affirmed in part and reversed in part. The appellate court found no error in (1) the failure to enter judgment in plaintiff's favor for the total amount of damages set forth in Interrogatory No. 1; (2) the effect of Sergeant Clipson's stricken testimony that he would have issued a citation to the decedent had she lived; and (3) permitting the operation of the railroad horn on the courthouse lawn for purposes of demonstration. On the cross-appeal, the court of appeals determined that the trial court committed error in (1) entering judgment for plaintiff in an amount representing thirty-five percent of the total damages, and (2) not granting defendant's motion for a directed verdict with respect to punitive damages.
The cause is before this court pursuant to the allowance of a motion to certify the record.
Murray Murray Co., L.P.A., Thomas J. Murray and Nancy L. Ogden, Williams Williams and Mark R. Williams, for appellant.
Flynn, Py Kruse Co., L.P.A., and Charles W. Waterfield, for appellee.
For the reasons which follow, we reverse the judgment of the court of appeals and remand this case for a new trial. The difficulty faced by the trial court, the court of appeals, and now this court, stems from the failure to follow Civ.R. 49 in the trial of this case. Our analysis starts at that point.
This case was submitted to the jury as a set of five interrogatories, with no instruction or form given the jury directing it to return a general verdict. This resulted in what is known as a "special verdict." See Black's Law Dictionary (6 Ed. 1990) 1560.
Civ.R. 49(C) commands that "[s]pecial verdicts shall not be used." (Emphasis added.) This prohibition was written into the Rules of Civil Procedure in response to the many difficulties encountered with special verdicts in pre-Rule civil practice. See Staff Note to Civ.R. 49. Civ.R. 49(A) provides: "A general verdict, by which the jury finds generally in favor of the prevailing party, shall be used." In place of the old special verdict, the drafters provided, in Civ.R. 49(B), for the use of interrogatories in combination with the general verdict as a means of attaining the perceived advantages of the special verdict while avoiding its disadvantages. See Staff Note, supra.
The instant case demonstrates the wisdom of adherence to Civ.R. 49(C). The jury's answers to Interrogatory Nos. 4 and 5 are impossible to reconcile. Either the railroad committed an intentional tort or it did not. If it did, on the record before us, we do not see how the jury could have concluded that the negligence "attributable" to the railroad was only thirty-five percent. Further, the jury made no finding that the acts of the railroad which constituted "actual malice" were a proximate cause of the accident. Nor did the jury specifically find that defendant's acts constituted an intentional tort.
The trial judge was also, it would appear, confused by the answers to these interrogatories. The trial judge attempted to resolve the confusion by entering a verdict for the plaintiff in the amount of thirty-five percent of the total damages which the jury found. This attempted compromise, as the court of appeals noted, is not permissible.
If the railroad did not commit an intentional tort, but was only thirty-five percent negligent as opposed to the sixty-five percent attributed to the plaintiff's decedent, then the plaintiff is not entitled to damages and a verdict for the defendant should have been entered. R.C. 2315.19(C).
If the railroad committed an intentional tort with malice and if that intentional tort was the proximate cause of plaintiff's damage, the negligence of the plaintiff's decedent is not a defense and the plaintiff would have been entitled to a full recovery, not merely thirty-five percent. Acts committed with actual malice constitute behavior qualitatively different from that which may be characterized as merely negligent. Accordingly, prior to the adoption of R.C. 2315.19, the absolute bar to recovery which attached to the defense of contributory negligence was unavailable where the acts of the defendant were reckless or intentional. Thus, in Kellerman v. J.S. Durig Co. (1964), 176 Ohio St. 320, 27 O.O.2d 241, 199 N.E.2d 562, paragraph three of the syllabus provided:
Interrogatory No. 5 required the jury to determine whether the defendant's "actions or inactions" constituted actual malice. There was no interrogatory requiring the jury to determine whether the defendant committed an intentional tort. Our analysis in this case, therefore, must be in terms of defendant's malice. The interrogatory answers, coupled with the evidence of record, make it necessary to remand the case for retrial. Thus we need not consider at this time whether a defendant's intentional tort, without a specific finding of malice, would negate a comparative negligence defense. Nor do we need wrestle with the hypothetical question of whether negligent acts committed with malice could be anything less than an intentional tort.
"Where wanton misconduct on the part of a defendant existed, negligence on the part of the plaintiff is not available as a defense." See, also, Payne v. Vance (1921), 103 Ohio St. 59, 133 N.E. 85, paragraph four of the syllabus.
Contributory negligence, prior to the enactment of R.C. 2315.19, did not bar recovery in an action predicated upon the willful, wanton or reckless conduct of a defendant. Likewise, the provisions of the statute which operate to prevent or reduce the recovery of a plaintiff due to her comparative negligence should not apply in such a case. Accordingly, in a civil action for tort or wrongful death, a finding by the jury that a plaintiff (or plaintiff's decedent) was comparatively negligent will not defeat or diminish the recovery of damages where the defendant's intentional tort, committed with actual malice, proximately caused the injury.
Apparently the trial judge questioned, and we do too, whether the jury intended a finding of actual malice.
In Preston v. Murty (1987), 32 Ohio St.3d 334, 512 N.E.2d 1174, syllabus, actual malice was defined as: "(1) that state of mind under which a person's conduct is characterized by hatred, ill will or a spirit of revenge, or (2) a conscious disregard for the rights and safety of other persons that has a great probability of causing substantial harm." (Emphasis sic.) Moreover, in Staff Builders, Inc. v. Armstrong (1988), 37 Ohio St.3d 298, 304, 525 N.E.2d 783, 789-790, the following observation was made on the subject:
"Actual malice is defined as `"`"that state of mind under which a person's conduct is characterized by hatred or ill will, a spirit of revenge, retaliation or a determination to vent his feelings upon other persons."'"' Columbus Finance, Inc. v. Howard (1975), 42 Ohio St.2d 178, 184, 71 O.O.2d 174, 177, 327 N.E.2d 654, 658; Pickle v. Swinehart (1960), 170 Ohio St. 441, 443, 11 O.O.2d 199, 200, 166 N.E.2d 227, 229. Alternatively, actual malice has been described as `extremely reckless behavior revealing a conscious disregard for a great and obvious harm.' Preston v. Murty (1987), 32 Ohio St.3d 334, 335, 512 N.E.2d 1174, 1175. The presence of actual malice need not be expressed but `may be inferred from conduct and surrounding circumstances.' Columbus Finance, Inc., supra, at 184, 71 O.O.2d at 177, 327 N.E.2d at 658."
The evidence of record, even when taken in favor of the plaintiff, is barely sufficient to withstand the defendant's motion for directed verdict on the malice issue. Clearly the railroad did not intend the accident which happened. The inference can be drawn, however, that the railroad did deliberately ignore governmental warnings concerning the crossing and did deliberately choose to leave in place a dangerous crossing, with consequent risk to the highway public.
However, the greater weight of the evidence suggests that the railroad did not act with malice. Further, the element of proximate cause is missing from the answer to the "malice" interrogatory. The foregoing, when coupled with the jury finding that the railroad's "negligence" was only a thirty-five percent cause of the accident, leads us to the conclusion that a retrial is the only fair result. Because of the failure to follow Civ.R. 49(A), we are uncertain whether the jury has resolved the questions relating to malice versus negligence and the questions of proximate causation which must follow.
The option of awarding thirty-five percent of the total damages to the plaintiff was not legally available to either the jury or the trial judge.
Had the jury been required to return a general verdict as mandated by Civ.R. 49(A) we would not be in the present quagmire. If the jury had returned a general verdict for the total amount of damages, we would have known whether the jury found that the railroad had committed an intentional tort with malice and whether the jury properly followed the law by not reducing the award by reason of the negligence of the plaintiff's decedent.
Had the jury returned a general verdict for the defendant, the trial judge would have to suspect that the jury, in answering the interrogatory with respect to malice, was really only affirming the determination that the railroad was reckless or that the railroad's malice was not a proximate cause of the accident. In this situation the trial judge could have followed one of the three options provided by Civ.R. 49(B), which provides in part:
"* * * When one or more of the answers is inconsistent with the general verdict, judgment may be entered pursuant to Rule 58 in accordance with the answers, notwithstanding the general verdict, or the court may return the jury for further consideration of its answers and verdict or may order a new trial."
Similarly, if the jury had returned a general verdict in an amount equal to thirty-five percent of the total damages, the trial judge could have seen the confusion and followed one of the options provided by Civ.R. 49(B).
Without a general verdict to tell us what overall result the jury intended, however, there is no hope, on this record, of reconciling the interrogatory answers. The judgment entered by the trial judge cannot be sustained. An attempt by us to reconstruct the jury's reasoning would be speculation. Our only option is to remand the case.
In a span of six months, three cases have been argued before this court which were tried in violation of Civ.R. 49(A): the instant case; O'Connell v. Chesapeake Ohio RR. Co. (1991), 58 Ohio St.3d 226, 569 N.E.2d 889; and Calmes v. Goodyear Tire Rubber Co. (1991), 61 Ohio St.3d 470, 575 N.E.2d 416. In failing to comply with Civ.R. 49(A), the parties and trial courts in these cases ran the risk that the case would be reversed because of the Civ.R. 49 violation. The resulting expense and waste of judicial resources should be obvious. We hold that compliance with Civ.R. 49(A) is mandatory. A trial judge must require the jury to return a general verdict in a civil action for damages.
Though we noted that a violation of Civ.R. 49 had occurred, O'Connell was decided on different grounds. See O'Connell, 58 Ohio St. 3d at 230, 569 N.E.2d at 893, fn. 1.
Since this case is remanded for retrial, we need not address at length the assignments of error relating to (1) the airhorn demonstration and (2) testimony by a policeman that he would have cited plaintiff's decedent had she lived. The latter is clearly improper and, we trust, will not be offered as evidence on retrial.
The airhorn demonstration, in our opinion, was sufficiently supported by the evidence of record to bring the decision to allow or disallow it within the sound discretion of the trial judge. We express no opinion on how the trial judge, on a retrial and on newly developed evidence, should rule.
The judgment of the court of appeals is reversed and the cause is remanded for retrial.
Judgment reversed and cause remanded.
MOYER, C.J., WRIGHT and RESNICK, JJ., concur.
HOLMES, J., concurs separately.
SWEENEY and DOUGLAS, JJ., concur in judgment only.
I am in total agreement with Justice Brown relative to the issue of malice, in that the record is completely devoid of any evidence of actual malice upon the part of the defendant. Certainly, the standards for the finding of malice under this court's holding in Preston v. Murty (1987), 32 Ohio St.3d 334, 512 N.E.2d 1174, have not been established.
Accordingly, I would prefer entering judgment for the defendant; however, in order to resolve the matter I shall concur in the remand.
In part, the majority says, "[h]owever, the greater weight of the evidence suggests that the railroad did not act with malice. * * *" Our task is not to weigh the evidence in this case — even in dictum. That responsibility will be undertaken, by a jury, on remand. In Chemical Bank of New York v. Neman (1990), 52 Ohio St.3d 204, 207, 556 N.E.2d 490, 494, we said that "[t]his court is not required to determine the weight of evidence in civil matters, R.C. 2503.43, and ordinarily will not do so. State, ex rel. Kobelt, v. Baker (1940), 137 Ohio St. 337, 18 O.O. 521, 29 N.E.2d 960. * * *" There is no reason in this case to violate this sound rule, especially where the majority opinion seems to be internally contradictory when, in an earlier sentence, it is stated that "* * * [t]he inference can be drawn, however, that the railroad did deliberately ignore governmental warnings concerning the crossing and did deliberately choose to leave in place a dangerous crossing, with consequent risk to the highway public."
SWEENEY, J., concurs in the foregoing opinion.