Grossnickle v. Village of Germantown, No. 38695

CourtOhio Supreme Court
Writing for the CourtSCHNEIDER
Citation32 O.O.2d 65,3 Ohio St.2d 96,209 N.E.2d 442
Parties, 32 O.O.2d 65 GROSSNICKLE et al., Appellees, v. VILLAGE OF GERMANTOWN, Appellant.
Docket NumberNo. 38695
Decision Date07 July 1965

Syllabus by the Court

1. In an action for personal injuries for which money damages for pain and suffering are recoverable, it is permissible for counsel for the injured party to suggest in argument a daily monetary amount which, when multiplied by a factor fairly representative of the probable duration of the pain and suffering, illustrates the basis for the total amount sought as compensation therefor, if the court instructs the jury that such argument is not to be received as evidence. Making such suggestion for the first time in closing argument exceeds the bounds of propriety but does not constitute prejudicial error if no objection is interposed on that ground.

2. A pedestrian using a public sidewalk is under a duty to use care reasonably proportioned to the danger likely to be encountered but is not, as a matter of law, required to look constantly downward under all circumstances even where she has prior knowledge of a potential hazard.

3. Whether the care and attention ordinarily required of a pedestrian using a public sidewalk and approaching an intersection is diverted by weather conditions, traffic hazards and the apparently safe condition of the surface of the walk so as to excuse her from observing a hazard, which she otherwise would have the duty to see and the potential danger of which she had prior knowledge, is a question of fact for a jury.

On the southeast corner of Cherry and Center Streets in Germantown, Ohio, that village maintained a public drinking fountain which ran continuously. A shout-off valve operated by a foot pedal had been removed by the village in 1945.

On the morning of January 22, 1959, the temperature was six degrees above zero, and the wind was out of the west-southwest with gusts reaching fifty-four m. p. h. A thin film of ice, about three feet in diameter, formed by wind driven spray from the fountain, covered the intersecting sidewalk.

At about 9:30 a. m. on that day, Hazel E. Grossnickle was walking westwardly toward that intersection on the southerly sidewalk of Center Street on her way to her husband's plumbing establishment where she was employed. Her destination required her to continue across Cherry Street. Her path along the sidewalk was dry and free of ice.

As she approached the intersection, although protected to some extent by a building located along the southerly edge of the sidewalk, she kept her head down and held her coat tightly about her. Upon arriving at the corner of the building (which is at the intersection of the sidewalks) she was immediately exposed to the full force of the wind from the south. Simultaneously, she noticed that the traffic signal, located above the intersecting center lines of the streets and in a direction away from the course of her path, was green. She looked also for traffic westward bound which might be turning left into her path across the intersection. So doing, she continued walking toward the crosswalk and stepped on the patch of ice and fell. Her ankle fractured and osteomyelitis developed. She eventually suffered complete loss of motion of that member.

She and her husband brought this action in the Common Pleas Court of Montgomery County seeking $60,000 and $5,000 respectively for permanent injuries, loss of earnings, medical expenses and pain and suffering resulting from the alleged negligence of the village in permitting the fountain to run continuously in freezing weather.

In defense, the village claimed contributory negligence on the part of Mrs. Grossnickle in failing to observe the ice. The evidence showed that this condition had occurred on previous occasions and was known not only by the village officials but had been observed by Mrs. Grossnickle.

In his argument to the jury, plaintiffs' counsel, after describing the effect of her injuries, asked 'Is it fair to say that $5 a day should be the value of that?' Defendant's immediate objection was overruled. Counsel then continued with the following:

'So that $5 a day for twenty-one years--21.55 years, will multiply out to $1,825 a year, and 21.55 years of life will multiply out to $39,328.75. That I think is a fair estimate of the damage from pain, suffering, inconvenience, future three of the leg being taken off, further injuries because of inability to manage herself well with a completely stiff ankle.'

No further objection to this argument was interposed.

The jury returned a verdict for Mrs. Grossnickle in the amount of $40,000 and for Mr. Grossnickle in the amount prayed for, and judgment was entered thereon.

On appeal to the Court of Appeals, that court, in affirming the judgments, found no error by the trial court in permitting plaintiffs' counsel to suggest a per diem amount for measuring pain and suffering. But the cause was certified to this court for the reason that the decision was in conflict with that of the Court of Appeals of the Third Appellate District in Boop v. B. & O. Ry. Co., 118 Ohio App. 171, 193 N.E.2d 714.

Baggott, Logan & Gianuglou and Horace W. Baggott, Dayton, for appellees.

Harshman, Young, Colvin & Alexander, Robert C. Alexander, Dayton, for appellant.


The cases and comments abound with discussion as to which view of the 'per diem' or 'mathematical' argument represents the wight of authority in this country. See Annotation, 60 A.L.R.2d 1347, 1350; 28 Univ. of Cincinnati L.Rev. 138. Nevertheless, a majority of this court is persuaded to adopt a rule favorable to its use, under proper circumstances, by the force of the reasoning expressed in a number of opinions of our sister state courts. Corkery v. Greenberg 253 Iowa 846, 854, 114 N.W.2d 327; 1 Caley v. Manicke, 29 Ill.App.2d 323, 336, 173 N.E.2d 209; 2 Four-County Electric Power Assn. v. Clardy, 221 Miss. 403, 430, 73 So.2d 144, 44 A.L.R.2d 1191. 3

Some of the more serious considerations advanced against permitting the argument are that (1) it displaces the common knowledge and experience possessed by a jury of the nature of pain and suffering, (2) it ignores the fact that pain is generally intermittent, (3) it makes no allowance for a discount for the present use of the total award, and (4) it stretches speculation to absurdity in that pain measured by, for example, a penny a second is equal to $31,536 a year.

These objections will be disposed of in the same order: (1) The practical fact is that no one intimately experienced with a situation similar to that of the plaintiff in any case would be permitted to sit on a jury; hence, the average juror is unacquainted with the type of pain or suffering which he is called upon to translate into monetary value. (2) Intermitten pain may be, but suffering the loss of a member or of normal activities in continual. (3) An award in gross is never discounted by the court and, if by the jury, the factor used is never disclosed. (4) The absurdity of any hypothesis is fair game for the opposing party. Caley v. Manicke, supra (29 Ill.App.2d 323, 173 N.E.2d 209). 4

The position against the argument in question comes close to a position against any monetary recovery for pain and suffering whatsoever, which of course, is not urged here.

We do not think impropriety could have been seriously urged with respect to counsel's reference to plaintiffs' preinjury earnings of $35 a week in seeking compensation for future loss of earnings. That she had earned that amount was in evidence. But, that she could have earned the same amount for every remaining year of her life until normal retirement was merely counsel's suggestion of a weekly rate upon which the jury was permitted to base its verdict. Just as permissible was counsel's suggestion of a daily monetary amount which, when multiplied by a factor fairly reflective of the probable duration of pain and suffering, illustrated the basis for the total amount sought as compensation for that loss.

Counsel did not misrepresent the evidence. The jury could not have been deceived into accepting the argument as evidence, particularly in view of the timely caveat in the charge of the court that the arguments of counsel were not evidence in the case.

However, most of the cases favoring permitting the argument and the better logic supporting them, are based, in part, on the equal opportunity afforded the defense for counter- argument. Here, plaintiffs' counsel held back until his closing argument, thus depriving the defense of its rebuttal. We believe this went beyond the limits of propriety.

On the other hand, appellant makes no objection to the timing of the argument and claims no prejudice on that ground. We, therefore, find none in this case. Appellant makes no claim that the verdict was excessive, and we cannot find that it was. See Paul W. Brown, J., in Hall v. Burkert, 117 Ohio App. 527, 528, at page 530, 193 N.E.2d 167, 169; 'The risk of overpersuasion resulting in excessive verdicts is counsel's risk. Such a verdict, however, is to be judged on appeal by its excessiveness under all the evidence, applying the usual tests.'

On this state of the record, we can only say that the judgment here is not invalid merely because the argument was made, in the absence of an objection on the ground of surprise or improper timing and in the absence of a request by appellant to counterargue.

Although the foregoing disposes of the question upon which this cause was certified to the court, the entire record being now before us (Couk v. Ocean Accident & Guarantee Corp., Ltd., 138 Ohio St. 110, 33 N.E.2d 9), we consider appellant's contention that final judgment should have been rendered in its favor, upon authority of Village of Conneaut v. Naef, 54 Ohio St. 529, 44 N.E. 236; or alternatively, that a new trial should have been granted for the refusal of the trial court to give appellant's Special...

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