Strother v. Hutchinson

Citation21 O.O.3d 177,67 Ohio St.2d 282,423 N.E.2d 467
Decision Date22 July 1981
Docket NumberNo. 80-1088,80-1088
Parties, 21 O.O.3d 177 STROTHER et al., Appellants, v. HUTCHINSON, d.b.a. Noah's Sunoco, et al., Appellees.
CourtOhio Supreme Court

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 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 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 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 N.E.2d 171, 173, it was held that "(i)ssues in a negligence case should be withdrawn from a jury in only exceptional cases and never when the facts concerning the conduct of the parties as well as the standard of care that should be exercised are to be determined." Since the standard of care needed to be determined in this case, a directed verdict should not have been granted on this basis.

This court must next determine, based on the evidence presented, whether reasonable minds could differ on the questions of whether plaintiff's injuries were proximately caused by defendant's negligent act of shooting at the fleeing vehicle and whether said injuries were a foreseeable consequence of defendant's acts.

It is well settled that in order for a person to be entitled to recover in damages for a claimed negligent injury, the act complained of must be the direct and proximate cause of the injury. See, e. g., Ross v. Nutt (1964), 177 Ohio St. 113, 114, 203 N.E.2d 118. Miller v. Baltimore & Ohio Southwestern Rd. Co. (1908), 78 Ohio St. 309, 85 N.E. 499. In Clinger v. Duncan (1957), 166 Ohio St. 216, 217, 223, 141 N.E.2d 156, this court addressed this issue and stated that "(t)he term 'proximate cause,' is often difficult of exact definition as applied to the facts of a particular case. However, it is generally true that, where an original act is wrongful or negligent and in a natural and continuous sequence produces a result which would not have taken place without the act, proximate cause is established, and the fact that some other act unites with the original act to cause injury does not relieve the initial offender from liability." One is thus liable for the natural and probable consequences of his negligent acts. Foss-Schneider Brewing Co. v. Ulland (1918), 97 Ohio St. 210, 119 N.E. 454.

"To find that an injury was the natural and probable consequence of an act, it must appear that the injury complained of could have been foreseen or reasonably anticipated from the alleged negligent act. As is said in Miller v. Baltimore & Ohio Southwestern Rd. Co., 78 Ohio St. 309, at page 325, 85 N.E. 499, '(t)he rule is elementary, that a defendant in an action for negligence can be held to respond in damages only for the immediate and proximate result of the negligent act complained of, and in determining what is...

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