McCall v. Mareino

• Decision Date: 31 July 2000
• Docket Number: No. 76552.,76552.
• Citation: 742 NE 2d 668,138 Ohio App.3d 794
• Parties: McCALL et al., Appellants, v. MAREINO, Appellee.
• Court: Ohio Court of Appeals

138 Ohio App.3d 794

742 NE 2d 668

McCALL et al., Appellants, v. MAREINO, Appellee.

No. 76552.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Decided July 31, 2000.

Todd J. McKenna, for appellants.

Keller & Curtin, Joseph G. Ritzier, for appellee.

JAMES D. SWEENEY, Judge.

Plaintiffs-appellants Walter McCall and Margaret Ellis appeal from the denial of their alternatively phrased motion for judgment notwithstanding the verdict or for new trial.¹ See Civ.R. 59(A)(4), (6) and (7).² For the reasons adduced below, we affirm.

A review of the record on appeal indicates that on January 31, 1994, at approximately 7:00 a.m., McCall was driving his automobile along Ivanhoe Road in Cleveland, Ohio, at approximately twenty-five miles per hour. Ellis was a passenger in McCall's vehicle. At that point, according to McCall, a vehicle operated by defendant-appellee Patrick Mareino, quickly accelerated into the intersection of Mandalay Road without stopping at the stop sign and struck the right rear of McCall's vehicle. At the time of the accident, McCall claimed that the traffic signal near Ivanhoe and Mandalay Roads was flashing yellow, and that the impact caused his vehicle to spin around two revolutions before coming to a stop in a direction opposite of the one he had been traveling. McCall admitted to walking over to exchange information with Mareino. McCall claimed that he was staggering and disoriented. McCall claimed that the right rear tire was deflated from the impact and that the right rear body panel was rubbing against the tire.³ McCall testified that his mother came to the scene to drive the plaintiffs away to the Sixth District Police Station to file an accident report (and were turned away without being permitted to file a report, according to McCall), then to work. During the work shift, McCall stated that he went to the downtown main police station to file a report, but no report is in evidence. After work, McCall went to the Kaiser Hospital emergency room on Fairhill Road at 7:32 p.m. on the date of the accident where he was treated and released. The emergency room records indicated McCall advised the emergency room staff that Ellis and Mareino were not injured, yet McCall denied the staff ever asking such a question. In these initial emergency room records, McCall complained of right leg and hip pain, no indication of neck pain or lower back pain. However, the records indicated no injuries or traumatic abnormalities with McCall, and did not prescribe additional treatment or therapy. McCall testified that he had no cuts, broken bones, or externally visible bruising or injuries, and never told Mareino that he was uninjured at the scene. There was no claim in the case for physical damage to the car operated by McCall, which car was titled in McCall's mother's name, and no evidence of repair costs to that vehicle.

McCall was treated by Dr. Wenning Zhao, a doctor of chiropractic, at Cleveland Chiropractic Clinic from May 10, 1994 to December 1994, with complaints of soft-tissue injury to his lumbar area and neck, incurring chiropractic services for seventy-eight separate visits in the amount of $16,730. These amounts were not covered by his health insurer, Kaiser Permanente at work. McCall also received three visits with Dr. Jeffrey Morris, an orthopedic surgeon at Beachwood Orthopedic Associates, beginning on February 2, 1995, for complaints of pain in the neck and low back, yet Morris never reviewed the Kaiser Permanente records on McCall. An MRI performed by Morris revealed some arthritis in the form of a degenerative disk problem at C5 through 7, and L2 through 5, a common condition of aging according to Morris, and that McCall did not follow through on the suggested course of therapy for alleviation of pain associated with the degenerative disk problem. Dr. Morris noted that the degenerative disk disease pre-existed the collision and this disk condition can cause the symptoms of pain in the neck and back. Morris noted that McCall exhibited a restriction in his range of motion in a straight-leg raising test. Morris opined that the collision caused the disc problem to become symptomatic.

McCall took early retirement after twenty-nine and a half years from his employment at Ameritech allegedly because he could not function in his duties due to the ongoing pain and he would have been terminated because of his absences from work.

Ellis also complained of soft-tissue injuries to her lumbar area, neck, and shoulder blades, which pain started three days after the collision. She claimed to have presented herself to the emergency room at the Cleveland Clinic on February 10, 1994, complaining of pain, yet no medical record for this event was put into evidence. She sought treatment at Kaiser Permanente through the Cleveland Clinic's emergency room on July 14, 1994, complaining of muscle spasms in her back, shoulders, neck and legs. On that date, Kaiser diagnosed general myalgia,⁴ a urinary tract and trichomonas infection (infections which are not relevant to the collision), ordered antibiotics and a muscle relaxant and gave her a follow-up appointment date. From June 11, 1994 to December of 1994, Ellis was treated by Zhao at Cleveland Chiropractic Clinic, incurring chiropractic services in the amount of $15,882. Ellis was treated briefly by Dr. Morris Jones and Dr. Grayson in 1994. In addition, Ellis was treated by Dr. Gerald Yosowitz at Beachwood Orthopedic Associates, upon the referral by McCall, originally for a complaint concerning a sinus problem, eight times between March 1995 through March 1996, incurring services in the amount of $3,681.50. Dr. Yosowitz testified that seventy percent of the patients seen at Beachwood Orthopedic Associates are litigating some type of claim involving the injury for which they are seeking medical attention. Dr. Yosowitz, though finding no objective signs of injury upon neurological and orthopedic examination, including x-rays and an MRI, diagnosed Ellis as suffering from chronic dorsal and lumbosacral myofascitis,⁵ which he attributed to the collision because the patient said she was hurt and that the pain originated after the collision. Yosowitz admitted that the only basis for his opinion that Ellis had sustained injury was Ellis's subjective complaints of pain to him. Prior to his deposition on April 1, 1999, Yosowitz admitted to not having reviewed Ellis's medical records from Kaiser or Cleveland Chiropractic Clinic; the only information he had about the collision was gathered directly from Ellis.

The defense heard testimony from Mareino that indicated that he came to a complete stop before entering the intersection of Ivanhoe and Mandalay Roads. Mareino stated that the traffic light for Ivanhoe Road had turned red, so he started to inch forward as the Ivanhoe Road traffic, which he observed, had either stopped or was slowing down. As he pulled forward to initiate a left-hand turn, the plaintiff's car "came out of nowhere and *** touched." McCall's car skidded in a small semi-circle without changing the overall direction it had been traveling and came to a rest in the middle of the roadway. Mareino pulled his vehicle over to the curb and got out, meeting McCall in the street. The two drivers exchanged information and Mareino observed that McCall did not exhibit any injuries. In fact, according to Mareino, McCall told him that McCall and Ellis were okay. Mareino observed a small scratch or dent by the wheel well of plaintiff's car; no other damage to the plaintiff's vehicle was evident. The only damage to Mareino's vehicle was a red strip on the bumper that had popped off. Mareino sustained no physical injuries and observed McCall drive his vehicle from the scene.

Charles Vokaty, the Acting Chief of the city of Cleveland's Traffic Signal Department, testified for the defense that, contrary to the assertion of McCall, the traffic signal on Ivanhoe Road at the scene of the collision was operating in the normal sequence and was not set for flashing yellow.

Prior to closing arguments, the trial court granted a directed verdict in favor of plaintiffs and against defendant on the issue of negligence. Only the issues of whether the collision proximately caused the injuries and damages, and the appropriate amount of compensation for those injuries, were considered by the jury. The jury returned a unanimous defense verdict.

The lone assignment of error provides:

"the trial court erred in failing to grant judgment notwithstanding the verdict, or alternatively, for a new trial where there were inadequate damages, and the verdict was against the manifest weight of the evidence, the plaintiffs were entitled to J.N.O.V. because reasonable minds could only come to the conclusion that plaintiffs were entitled to damages as a matter of law."

The standard of review for a motion for a new trial ruling is the following:

"It is well established that a trial court's decision whether to grant a new trial lies within the sound discretion of the trial court. Verbon v. Pennese (1982), 7 Ohio App.3d 182, 7 OBR 229, 454 N.E.2d 976. "The term `abuse of discretion' connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable." Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 5 OBR 481, 482, 450 N.E.2d 1140, 1142. In reviewing a trial court's ruling on a motion for a new trial, an appellate court should view the evidence before it favorably to the trial court's action, rather than the jury's verdict, where the trial court's decision involves questions of fact. Sanders v. Mt. Sinai Hosp. (1985), 21 Ohio App.3d 249, 253, 21 OBR 292, 296-297, 487 N.E.2d 588, 593-594; Richard L. Bowen & Assoc. v. Kassouf (June 22, 1995), Cuyahoga App. Nos. 66801, 67018, unreported, at 9, 1995 WL 371294. A judgment supported by some competent, credible evidence going to the essential elements of the case will not be...