Hawkins v. Ivy

• Citation: 50 Ohio St.2d 114,4 O.O.3d 243,363 N.E.2d 367
• Decision Date: 18 May 1977
• Docket Number: No. 76-883,76-883
• Parties: , 4 O.O.3d 243 HAWKINS, Appellant, et al. v. IVY, Appellee.
• Court: United States State Supreme Court of Ohio

Page 114

50 Ohio St.2d 114

363 N.E.2d 367, 4 O.O.3d 243

HAWKINS, Appellant, et al. v. IVY, Appellee.

No. 76-883.

Supreme Court of Ohio.

May 18, 1977.

Syllabus by the Court

Where the driver of an automobile fails to exercise any care whatsoever toward those to whom he owes a duty of care, and his failure occurs under circumstances in which there is great probability that harm will result, such failure constitutes wanton misconduct. (Universal Concrete Pipe Co. v. Bassett, 130 Ohio St. 567, 200 N.E. 843, and subsequent cases, modified.)

Appellant, Laura B. Hawkins, brought an action against appellee, Michael L. Ivy, in the Cuyahoga County Court of Common Pleas, seeking damages as the result of an automobile collision. At the close of appellant's case, the trial court granted appellee's motion for a directed verdict.

The Court of Appeals for Cuyahoga County affirmed the judgment of the trial court and the cause is now before this court upon the allowance of a motion to certify the record.

Don C. Iler, Cleveland, for appellant.

Thomas E. Betz and Neil E. Roberts, Cleveland, for appellee.

HERBERT, Justice.

Civ.R. 50(A)(4) provides:

'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.'

By the same token, 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.

Construing the evidence adduced at trial most strongly in appellant's favor, the record shows that at approximately 8:30 p. m., on November 26, 1972, appellee was operating an automobile in a northerly direction on Northfield Road in Warrensville Heights. Northfield was a four-lane highway divided by an island, two lanes being for northbound traffic and two lanes for traffic traveling southerly. It was a dark night, the black asphalt pavement was wet, and the air was filled with a mixture of 'pretty heavy rain and snow.' Traffic was moderate. Appellee's car was gray in color. There were some street lights in the vicinity, their exact location and number being in conflict.

Appellee was proceeding in the inside or 'passing' lane, when his headlights dimmed and his car stalled. The vehicle stopped between 15 and 25 feet from a driveway into a shopping center. Being unable to restart his engine, appellee went to a nearby bowling alley, where he borrowed a car. He returned to the scene with some friends and attempted to 'jump-start' his engine with the battery in the other automobile. During the entire time the stalled car was attended, even when appellee was accompanied by friends, no effort was made to move the disabled vehicle from the passing lane into the nearby driveway.

Unsuccessful in his efforts to start his automobile, appellee thereupon departed for a gasoline station. Although he 'thought' he had a flashlight in the car, none was used to warn approaching motorists. The flasher warning lights with which the car was equipped were not activated. Neither the parking lights nor headlights were turned on. The record is silent as to whether the hood was left in a raised position. In short, appellee failed to take any precaution whatsoever, and knowingly left his automobile under circumstances in which 'the probability that harm would result from such failure was great.' Kellerman, supra. Approximately ten minutes later, appellant collided with the rear of the stalled car and was injured.

Appellee's conduct was more than simple negligence. With full knowledge of the surrounding circumstances, his reckless and inexcusable disregard of the rights of other motorists, as evidenced by a record construed in accordance with Civ.R. 50(A)(4), supra, would support a finding of wanton misconduct. ¹ Cf. Brooks v. Norfolk & Western Ry. Co. (1976), 45 Ohio St.2d 34, 340 N.E.2d 392; see Kellerman v. J. S. Durig Co., supra, 176 Ohio St. 320, 199 N.E.2d 562; cf. Universal Concrete Pipe Co. v. Bassett (1936), 130 Ohio St. 567, 200 N.E. 843; and Roszman v. Sammett (1971), 26 Ohio St.2d 94, 269 N.E.2d 420.

Since Bassett, this court has announced many decisions in which wanton misconduct has been discussed in conjunction with the phrase 'disposition to perversity.' Vecchio v. Vecchio (1936), 131 Ohio St. 59, 64, 1 N.E.2d 624; Jenkins v. Sharp (1942), 140 Ohio St. 80, 83, 42 N.E.2d 755; Kennard v. Palmer (1944), 143 Ohio St. 1, 8, 53 N.E.2d 908; Masters v. N. Y. Central Rd. Co. (1947), 147 Ohio St. 293, 299, 70 N.E.2d 898; Cole v. N. Y. Central Rd. Co. (1948), 150 Ohio St. 175, 187, 80 N.E.2d 854; Helleren v. Dixon (1949), 152 Ohio St. 40, 46, 86 N.E.2d 777; Birmelin v. Gist (1954), 162 Ohio St. 98, 110, 120 N.E.2d 711; Lombardo v. De Shance (1958), 167 Ohio St. 431, 433, fn. at page 433, 149 N.E.2d 914; Redis v. Lynch (1959), 169 Ohio St. 305, 308, 159 N.E.2d 597; Billings v. Carroll (1960), 171 Ohio St. 167, 169, 168 N.E.2d 310; Kellerman v. J. S. Durig Co., supra; Bush v. Kelley's, Inc. (1969), 18 Ohio St.2d 89, 92, 247 N.E.2d 745; Roszman v. Sammett, supra; Bailey v. Brown (1973), 34 Ohio St.2d 62, 66, 295 N.E.2d 672; Rannells v. Cleveland (1975), 41 Ohio St.2d 1, fn. 2, at page 5, 321 N.E.2d 885; Brooks v. Norfolk & Western Ry. Co., supra.

Were it necessary, we could conclude that appellee's conduct in the case at bar amounted to such a disposition. However, we consider further reliance upon that phrase to be unnecessary to a workable definition of wanton misconduct. Should a jury determine that appellee's behavior and the surrounding circumstances were as described, a finding of wanton misconduct would be appropriate, and the talismanic exercise of also announcing the presence of a disposition to perversity is not required. ² Where the driver of an automobile fails to exercise any care whatsoever toward those to whom he owes a duty of care, and his failure occurs under circumstances in which there is great probability that harm will result, such failure constitutes wanton misconduct.

Both the trial court and the Court of Appeals found that reasonable minds could only conclude that appellant was contributorily negligent in the operation of her automobile. See R.C. 4511.21. ³ However, we do not reach that question because a plaintiff's contributory negligence does not bar his recovery in an action where it is determined that damages were suffered as the proximate result of a defendant's wanton misconduct. ⁴

The judgment of the Court of Appeals is reversed, and the cause is remanded to the Court of Common Pleas for further proceedings.

Judgment reversed.

C. WILLIAM O'NEILL, C. J., and STERN, WILLIAM B. BROWN, SWEENEY and LOCHER, JJ., concur.

PAUL W. BROWN, J., dissents.

STERN, J., retired, assigned to active duty under authority of Section 6(C), Article IV, Constitution, sitting for CELEBREZZE, J.

PAUL W. BROWN, Justice, dissenting.

In Kellerman v. J. S. Durig Co. (1964), 176 Ohio St. 320, 199 N.E.2d 562, this court reversed the order of the Court of Appeals for Trumbull County affirming the trial court's directed verdict for the defendant. That verdict was grounded upon the trial court's finding at the close of the plaintiff's evidence in chief that plaintiff's conduct violated R.C. 4511.21 (assured-clear-distance-ahead statute) and hence amounted to contributory negligence as a matter of law, precluding recovery under the holding in Smiley v. Arrow Spring Bed Co. (1941), 138 Ohio St. 81, 33 N.E.2d 3. This finding was a proper one under a long line of cases which were factually identical. Kellerman, supra, differed from this line of cases only in that the plaintiff had included in his complaint an allegation of 'wanton misconduct' as a characterization of defendant's conduct almost identical with that of the defendants in all the preceding cases.

The Kellerman case was an invitation to ...