423 N.E.2d 467 (Ohio 1981), 80-1088, Strother v. Hutchinson

Docket Nº:80-1088.
Citation:423 N.E.2d 467, 67 Ohio St.2d 282
Opinion Judge:Per Curiam.
Party Name:STROTHER et al., Appellants, v. HUTCHINSON, d.b.a. Noah's Sunoco, et al., Appellees.
Attorney:Jack W. Abel, Cleveland, for appellants. Mr. Jack W. Abel, for appellants., Messrs. Payne & Payne, and Mr. William S. Derkin, for appellees.
Judge Panel:CELEBREZZE, C. J., and WILLIAM B. BROWN, PAUL W. BROWN and CLIFFORD F. BROWN, JJ., concur. HOLMES, Justice, dissenting. SWEENEY and LOCHER, JJ., concur in the foregoing dissenting opinion.
Case Date:July 22, 1981
Court:Supreme Court of Ohio

Page 467

423 N.E.2d 467 (Ohio 1981)

67 Ohio St.2d 282

STROTHER et al., Appellants,

v.

HUTCHINSON, d.b.a. Noah's Sunoco, et al., Appellees.

No. 80-1088.

Supreme Court of Ohio.

July 22, 1981

Page 468

[Copyrighted Material Omitted]

Page 469

Jack W. Abel, Cleveland, for appellants.

Payne & Payne and William S. Derkin, Cleveland, for appellees.

PER CURIAM

The primary issue presented in this case is whether the trial court properly directed a verdict in favor of defendant at the close of plaintiffs' case in chief.

When considering a motion for a directed verdict, a trial court must construe the evidence most strongly in favor of the party against whom the motion is directed. Civ.R. 50(A)(4) provides that:

"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."

The law in Ohio regarding directed verdicts is well formulated. In addition to Civ.R. 50(A), it is well established that the court must neither consider the weight of the evidence nor the credibility of the witnesses in disposing of a directed verdict motion. Durham v. Warner Elevator Mfg. Co. (1956), 166 Ohio St. 31, 139 N.E.2d 10. Thus, "if there is substantial competent evidence to support the party against whom the motion is made, upon which evidence reasonable minds might reach different conclusions, [67 Ohio St.2d 285] the motion must be denied. Kellerman v. J. S. Durig Co. (1964), 176 Ohio St. 320, 199 N.E.2d 562 * * *." Hawkins v. Ivy (1977), 50 Ohio St.2d 114, 115, 363 N.E.2d 367.

To entitle the plaintiff in a personal injury suit to have his case submitted to a jury, it is necessary that the plaintiff produce some evidence upon every element essential to establish liability, or produce evidence of a fact upon which a reasonable inference may be predicated to support such element. Penter v. Schwartz (1949), 85 Ohio App. 477, 481-482, 89 N.E.2d 154. Thus, in order to establish actionable negligence, one seeking recovery must show the existence of a duty, the breach of the duty, and injury resulting proximately therefrom. Feldman v. Howard (1967), 10 Ohio St.2d 189, 193, 226 N.E.2d 564. As such, this court must first consider whether the defendants were negligent and breached a

Page 470

duty of care owed to the plaintiffs when defendant Floyd Binder shot at the robbers who were fleeing from the gas station owned by defendant Noah Hutchinson.

"The amount of care required of a person to establish whether he has discharged his duty to another is variously referred to as the 'amount of caution,' the 'degree of care' or the 'standard of conduct' which an ordinarily careful and prudent person would exercise or observe under the same or similar circumstances." Di Gildo v. Caponi (1969), 18 Ohio St.2d 125, 127, 247 N.E.2d 732. See, also, Thompson v. Ohio Fuel Gas Co. (1967), 9 Ohio St.2d 116, 224 N.E.2d 131; Eisenhuth v. Moneyhon (1954), 161 Ohio St. 367, 119 N.E.2d 440; Soltz v. Colony Recreation Center (1949), 151 Ohio St. 503, 87 N.E.2d 167; Johnson v. Wagner Provision Co. (1943), 141 Ohio St. 584, 49 N.E.2d 925; Davison v. Flowers (1930), 123 Ohio St. 89, 174 N.E. 137; Prosser on Torts (3 Ed.) 146, Section 30; 2 Restatement of Torts 2d 4, Section 281.

Appellants argue that defendant Binder failed to discharge his duty to another in that his conduct was excessive and without due regard for the safety of others. They alleged that Binder's conduct was negligent per se and in all other ways negligent. The appellees, on the other hand, question whether Binder was justified in shooting at the fleeing robbers.

In essence, both parties raise the issue of whether Binder was privileged to fire gunshots at the robbers in defense of person or property. The general rule, as stated in 1 Restatement [67 Ohio St.2d 286] of Torts 2d 128, Section 75, is that "(a)n act which is privileged for the purpose of protecting the actor from a harmful or offensive contact or other invasion of his interests of personality subjects the actor to liability to a third person for any harm unintentionally done to him only if the actor realizes or should realize that his act creates an unreasonable risk of causing such harm."

If Binder was not privileged to fire shots at the robbers, then his actions would be judged by whether a reasonably prudent and careful person, under the same or similar circumstances, should have anticipated that injury to the plaintiff or to those in a like situation would probably result. Gedeon v. East Ohio Gas Co. (1934), 128 Ohio St. 335, 190 N.E. 924.

Thus, in order for Binder's act of shooting at the fleeing robbers to have been privileged, as a matter of law, it would have to be clear that he was acting in defense of his person or property. Evidence was presented to refute this position. For example, evidence was presented that at the time of the shooting, the robbers were in the process of fleeing the station. There is no evidence that the robbers were firing shots at Binder as they were leaving or that Binder had any reason to believe the robbers intended to inflict any harm on him.

Sufficient evidence was thus presented to raise an issue as to the standard of care required of Binder. In Di Egidio v. Kealy (Ohio App.1959), 162...

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2132 practice notes
  • 108 N.E.3d 1266 (Ohio App. 2 Dist. 2018), 2018-CA-8, Smith v. Hess
    • United States
    • Ohio Court of Appeals of Ohio
    • 7 Septiembre 2018
    ...jury. Westfall v. Lemon, 4th Dist. Washington No. 14CA12, 2015-Ohio-384, 2015 WL 459283, ¶ 23, citing Strother v. Hutchinson, 67 Ohio St.2d 282, 288, 423 N.E.2d 467 (1981), citing Clinger, 166 Ohio St. 216, 141 N.E.2d 156. Nevertheless, where no facts are alleged ju......
  • 438 N.E.2d 890 (Ohio 1982), 81-1903, Crawford v. Halkovics
    • United States
    • Ohio Supreme Court of Ohio
    • 11 Agosto 1982
    ...199 N.E.2d 562 [27 O.O.2d 241]; Hawkins v. Ivy (1977), 50 Ohio St.2d 114, 363 N.E.2d 367 [4 O.O.3d 243]; Strother v. Hutchinson (1981), 67 Ohio St.2d 282, 423 N.E.2d 467 [21 O.O.3d 177]. The Court of Appeals based its decision that the trial court erred in not granting the plaintiff a direc......
  • 474 N.E.2d 621 (Ohio App. 8 Dist. 1984), Tyrrell v. Investment Associates, Inc.
    • United States
    • Ohio Court of Appeals of Ohio
    • 20 Marzo 1984
    ...50(A)(4). The court should not consider the weight of the evidence or the credibility of the witnesses. Strother v. Hutchinson (1981), 67 Ohio St.2d 282, 284, 423 N.E.2d 467 [21 O.O.3d 177]. Plaintiff was a business invitee for the defendant drug store. Therefore, the store owed him a duty ......
  • 534 N.E.2d 855 (Ohio App. 12 Dist. 1987), CA86-02-031, Cox v. Oliver Machinery Co.
    • United States
    • Ohio Court of Appeals of Ohio
    • 11 Mayo 1987
    ...to but one conclusion on the evidence submitted, that conclusion being adverse to the non-moving party. Strother v. Hutchinson (1981), 67 Ohio St.2d 282, 21 O.O.3d 177, 423 N.E.2d 467; Love v. Mack Trucks, Inc. (1985), 27 Ohio App.3d 198, 27 OBR 238, 500 N.E.2d 328; and Civ.R. 50(A)(4). If ......
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2131 cases
  • 108 N.E.3d 1266 (Ohio App. 2 Dist. 2018), 2018-CA-8, Smith v. Hess
    • United States
    • Ohio Court of Appeals of Ohio
    • 7 Septiembre 2018
    ...jury. Westfall v. Lemon, 4th Dist. Washington No. 14CA12, 2015-Ohio-384, 2015 WL 459283, ¶ 23, citing Strother v. Hutchinson, 67 Ohio St.2d 282, 288, 423 N.E.2d 467 (1981), citing Clinger, 166 Ohio St. 216, 141 N.E.2d 156. Nevertheless, where no facts are alleged ju......
  • 438 N.E.2d 890 (Ohio 1982), 81-1903, Crawford v. Halkovics
    • United States
    • Ohio Supreme Court of Ohio
    • 11 Agosto 1982
    ...199 N.E.2d 562 [27 O.O.2d 241]; Hawkins v. Ivy (1977), 50 Ohio St.2d 114, 363 N.E.2d 367 [4 O.O.3d 243]; Strother v. Hutchinson (1981), 67 Ohio St.2d 282, 423 N.E.2d 467 [21 O.O.3d 177]. The Court of Appeals based its decision that the trial court erred in not granting the plaintiff a direc......
  • 474 N.E.2d 621 (Ohio App. 8 Dist. 1984), Tyrrell v. Investment Associates, Inc.
    • United States
    • Ohio Court of Appeals of Ohio
    • 20 Marzo 1984
    ...50(A)(4). The court should not consider the weight of the evidence or the credibility of the witnesses. Strother v. Hutchinson (1981), 67 Ohio St.2d 282, 284, 423 N.E.2d 467 [21 O.O.3d 177]. Plaintiff was a business invitee for the defendant drug store. Therefore, the store owed him a duty ......
  • 534 N.E.2d 855 (Ohio App. 12 Dist. 1987), CA86-02-031, Cox v. Oliver Machinery Co.
    • United States
    • Ohio Court of Appeals of Ohio
    • 11 Mayo 1987
    ...to but one conclusion on the evidence submitted, that conclusion being adverse to the non-moving party. Strother v. Hutchinson (1981), 67 Ohio St.2d 282, 21 O.O.3d 177, 423 N.E.2d 467; Love v. Mack Trucks, Inc. (1985), 27 Ohio App.3d 198, 27 OBR 238, 500 N.E.2d 328; and Civ.R. 50(A)(4). If ......
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