Bell v. Giamarco

• Decision Date: 28 June 1988
• Docket Number: No. 87AP-693,87AP-693
• Parties: BELL, Appellant and Cross-Appellee, v. GIAMARCO, Appellee and Cross-Appellant; Cobb, Appellee.
• Court: Ohio Court of Appeals

Page 61

50 Ohio App.3d 61

553 N.E.2d 694

BELL, Appellant and Cross-Appellee, v. GIAMARCO, Appellee and Cross-Appellant; Cobb, Appellee.

No. 87AP-693.

Court of Appeals of Ohio, Tenth District, Franklin County.

June 28, 1988.

Syllabus by the Court

1. Although a driver of a vehicle has no affirmative duty to assist children in crossing the street, to the extent a driver undertakes to give such assistance, he assumes the duty to exercise due care in that undertaking.

2. While an adult may have no right to rely on hand signals from drivers beckoning him to turn or cross the street, a young child who so relies may properly seek to hold the operator liable for resulting injuries.

Robert G. Palmer, Columbus, for appellant and cross-appellee.

Hamilton, Kramer, Myers & Cheek and Brian J. Bradigan, and Duncan D. Aukland, Columbus, for appellee and cross-appellant Joseph P. Giamarco.

Robert E. Frost & Associates and Gwenn S. Karr, Columbus, for appellee Robert H. Cobb.

STRAUSBAUGH, Judge.

This is an appeal by plaintiff and a cross-appeal by one defendant from a judgment of the court of common pleas sustaining defendants' motions for directed verdicts. The Civ.R. 50(A) motions were made in plaintiff's action for wrongful death brought pursuant to R.C. 2125.01.

Plaintiff's decedent, Regina Ruth Bell, aged five, was killed on December 20, 1982, while walking home with her brother from a friend's house. The accident occurred when Regina and her brother Matt attempted to cross Oakland Park Avenue where it intersects with Walmar Drive. As the children waited to cross, a car pulled up in the lane in front of them and stopped approximately one or two car lengths behind the preceding car. Apparently the westbound traffic on Oakland park was stopped for a traffic light. The testimony at trial indicated that the driver of that car, who plaintiff alleges was defendant Robert H. Cobb, waved to the children indicating that it was safe to cross in front of him. At about this same time, an automobile driven by defendant Joseph P. Giamarco was proceeding eastbound on Oakland Park. Although Matt attempted to pull Regina back onto the curb, she jerked loose and ran across the street into the path of defendant Giamarco's vehicle. Regina was struck by the edge of a headlight on Giamarco's vehicle and suffered a fatal injury.

Plaintiff, Jim Bell, as the father and personal representative of the estate of his late daughter, instituted this wrongful death action pursuant to R.C. 2125.01. The case came on for trial before a jury on June 8, 1987. At the trial, Matt Bell testified that the man in the car which had pulled in front of them had waved for them to cross. He further testified that he did not know whether his sister saw the man wave; that he did not know whether it was defendant Cobb who waved to the children; and that he was unable to say what the man looked like in that car. Defendant Giamarco testified that he was looking directly in front of him, but that his attention was diverted by a ball which bounced into his path; that he was traveling approximately thirty m.p.h.; that he then heard a thump; and that he was not sure whether he ever saw Regina in front of his car. Defendant Cobb testified that although the children may have looked at him, he did not wave to them; that he never saw defendant Giamarco slow down or swerve; and that he never saw a ball.

At the close of plaintiff's case, both defendants moved the court, pursuant to Civ.R. 50(A), for directed verdicts in their favor. Those motions were sustained by the trial court and plaintiff now appeals.

Plaintiff assigns three errors for review:

"I. The lower court erred in granting defendant Giamarco's motion for directed verdict.

"II. The lower court erred in granting defendant Cobb's motion for directed verdict.

"III. The trial court erred in not admitting plaintiff's Exhibits 16, 18, 20, 21, 22, 23, 24, 25 and 26."

Defendant Giamarco has also cross-appealed and sets forth a single assignment of error:

"The trial court abused its discretion in failing to exclude Bell's Exhibit number 12 as well as the home movie of the decedent. The obvious prejudicial potential of this evidence made its exclusion mandatory pursuant to Rule 403, Ohio Rules of Evidence."

Under plaintiff's first two assignments of error, he argues that the trial court erred in granting either defendant's Civ.R. 50(A) motion. Plaintiff maintains that the evidence adduced at trial gives rise to competing inferences as to whether defendant Cobb was where he said he was, whether he waved to the children and whether Regina saw him wave. With respect to defendant Giamarco, plaintiff contends that the inconsistent and confusing nature of his testimony, as well as the physical layout of the accident scene, gives rise to factual disputes regarding the circumstances of the accident.

Generally, a directed verdict is appropriate only where the party opposing the motion fails to produce any evidence on the essential elements of his claim or defense. O'Day v. Webb (1972), 29 Ohio St.2d 215, 58 O.O.2d 424, 280 N.E.2d 896. Under Civ.R. 50(A), the trial court is concerned only with the legal sufficiency of the evidence, not the weight of that evidence. Ruta v. Breckenridge-Remy Co. (1982), 69 Ohio St.2d 66, 23 O.O.3d 115, 430 N.E.2d 935.

The essential elements of a negligence claim are duty, breach of that duty, and damage or injury as a proximate result of the breach. Baier v. Cleveland Ry. Co. (1937), 132 Ohio St. 388, 391, 8 O.O. 208, 209, 8 N.E.2d 1, 2; Strother v. Hutchinson (1981), 67 Ohio St.2d 282, 285, 21 O.O.3d 177, 179, 423 N.E.2d 467, 469. The existence of a duty turns in part on the foreseeability of the injury. Gedeon v. East Ohio Gas Co. (1934), 128 Ohio St. 335, 338, 190 N.E. 924, 925-926. In order for the issue of negligence to go to the jury, it is plaintiff's burden to adduce sufficient evidence to establish that either defendant breached a duty by exposing Regina to a foreseeable risk of unreasonable harm. Englehardt v. Philipps (1939), 136 Ohio St. 73, 78, 15 O.O. 581, 583, 23 N.E.2d 829, 831-832.

With respect to defendant Cobb, although he was under no affirmative duty to assist the children in crossing the street, to the extent he undertook such assistance, he assumed the duty to exercise due care in that undertaking. Cf. Seley v. G.D. Searle & Co. (1981), 67 Ohio St.2d 192, 21 O.O.3d 121, 423 N.E.2d 831, and Briere v. Lathrop Co. (1970), 22 Ohio St.2d 166, 51 O.O.2d 232, 258 N.E.2d 597. Moreover, automobile operators owe a statutory duty of care to pedestrians who are lawfully crossing the street. R.C. 4511.46(A). Where the pedestrian is a young child, motor vehicle drivers are charged with greater care in discharging their duties than would be imposed were the pedestrian an adult. Sargent v. United Transportation Co. (1978), 56 Ohio App.2d 159, 10 O.O.3d 180, 381 N.E.2d 1331. While an adult may have no right to rely on hand signals from drivers beckoning them to turn or cross the street, Van Jura v. Row (1963), 175 Ohio St. 41, 23 O.O.2d 344, 191 N.E.2d 536, we conclude that a young child who so relies may properly seek to hold the operator liable for resulting injuries. Cf. Sweet v. Ringwelski (1961), 362 Mich. 138, 106 N.W.2d 742, 90 A.L.R.2d 1434.

At trial, plaintiff put on evidence tending to show that decedent Regina, aged five, attempted to cross Oakland Park Avenue in an unmarked crosswalk; that defendant Cobb saw the children; that traffic was moderate in the vicinity; that it was early evening in late December; that defendant Cobb waved to the children, indicating for them to cross in front of him; that defendant Cobb observed defendant Giamarco's vehicle proceeding east on Oakland Park Avenue toward his automobile; and, that the speed of the Giamarco vehicle was in the range of twenty to thirty-five m.p.h.

Given this evidence, we find it sufficient to allow this case to proceed to the jury. Construing the evidence most favorably to plaintiff, reasonable minds could differ as to whether defendant Cobb should have been aware of the hazard posed by crossing Oakland Park Avenue under the circumstances or whether he breached his duty of ordinary care by beckoning the children to cross. Whether defendant Cobb waved to the children and whether he was aware or should have been aware of the dangers are questions for the jury.

Defendant Cobb argues, however, that plaintiff failed to adduce sufficient evidence with respect to either a breach of any duty owed by him to Regina or that any alleged breach proximately caused her death. Specifically, defendant Cobb maintains that plaintiff failed to establish via direct evidence that he was the person who waved for the children to cross; that Regina actually saw him wave; or, that Regina relied upon this signal in making her decision to cross the street. Rather, it is defendant Cobb's position that for the jury to infer that Regina relied upon the signal, such inference must be impermissibly premised upon two other inferences. The first of those would require an inference that defendant Cobb was the driver who waved to the children since Matt Bell could not identify the driver as defendant Cobb. The other inference upon which the jury must rely in holding defendant Cobb liable is that Regina saw the wave since Matt was also unable to state whether Regina saw the wave.

Clearly, a jury may not make an inference which is based solely and entirely upon another inference absent additional facts or inferences from other facts to support the second inference. Hurt v. Charles J. Rogers Transportation Co. (1955), 164 Ohio St. 329, 58 O.O. 122, 130 N.E.2d 820, paragraph one of the syllabus. However, reasonable inferences may be drawn from another inference if the second inference is based in part upon additional facts. Id. at paragraph two of the syllabus. Likewise, a jury may draw several inferences from one set of facts. Id. at...