Osler v. City of Lorain

• Decision Date: 26 December 1986
• Docket Number: No. 86-284,86-284
• Citation: 28 OBR 410,504 N.E.2d 19,28 Ohio St.3d 345
• Parties: , 28 O.B.R. 410 OSLER, Appellee and Cross-Appellant, v. CITY OF LORAIN, Appellant and Cross-Appellee.
• Court: Ohio Supreme Court

Page 345

28 Ohio St.3d 345

504 N.E.2d 19, 28 O.B.R. 410

OSLER, Appellee and Cross-Appellant, v. CITY OF LORAIN, Appellant and Cross-Appellee.

No. 86-284.

Supreme Court of Ohio.

Dec. 26, 1986.

On the evening of February 14, 1980, appellee and cross-appellant, Jerald Osler, was driving home from a birthday party for a friend. Osler had consumed alcoholic beverages at that party. The route home took Osler over Leavitt Road in Lorain. As he was driving, his car struck a bump in the road at the point of a curve, causing him to lose control of the vehicle, run off the road and strike a utility pole. Osler's spinal cord was damaged and the injury rendered him a quadriplegic. Although a blood test performed at the treating hospital less than two hours after the accident revealed that Osler's blood-alcohol level was .141 percent, it appears he was never charged or convicted of driving a motor vehicle while intoxicated.

Osler subsequently brought a negligence claim against the appellant and cross-appellee, city of Lorain. The complaint alleged that the city negligently failed to keep Leavitt Road open and free of nuisance pursuant to R.C. 723.01 and that the city had notice of the dangerous condition of the road in the area where his accident took place.

On September 4, 1984, Osler's case went to trial. Conflicting evidence was presented as to the level of Osler's alcohol impairment, if any, and as to whether his earlier drinking was the proximate cause of his accident. Conflicting evidence was also adduced concerning the dangerous condition of the road where Osler's accident took place and its causal relation to the accident. At the close of evidence and argument, the case was submitted to the jury, which was instructed in accordance with Ohio's comparative negligence statute, R.C. 2315.19. The jurors returned a general verdict for Osler, finding the city seventy percent negligent and Osler thirty percent negligent. The trial court entered a $2.8 million judgment in Osler's favor.

Thereafter, the city moved for judgment notwithstanding the verdict, or alternatively, for a new trial. The trial court granted the motion. In entering judgment notwithstanding the verdict in favor of the city, the court determined, inter alia, that the "uncontradicted" evidence at trial proved that Osler could have been found guilty, beyond a reasonable doubt, of driving while intoxicated in violation of former R.C. 4511.19(A). The trial court then reasoned that, as a matter of law, Osler's injury was the result of his intoxication, and concluded:

" * * * The Court finds that the City of Lorain was not negligent in that it was under no duty to keep its streets accident-proof for those operating vehicles while under the influence of alcohol in violation of R.C., Sec. 4511.19(A)(2) [sic ]. The Court further finds that, assuming that the City of Lorain was negligent, Plaintiff was more than 50% contributorily negligent as a matter of law by voluntarily driving a vehicle while under the influence of alcohol in violation of R.C., Sec. 4511.19(A)(2) [sic ]."

The court also conditionally granted the city's motion for a new trial on two grounds: (1) the verdict was against the manifest weight of the evidence, and (2) the verdict was contrary to law. In this portion of its ruling, the trial court referred to Osler's familiarity with the bump in the road, the dry and clear condition of the road on the night of the accident, and Osler's testimony that he had been drinking on an empty stomach as factors showing that the jury's verdict in his favor was against the manifest weight of the evidence.

The court further found that a new trial was necessary because Osler's case should not have been submitted to the jury under the comparative negligence law, R.C. 2315.19. The court stated that Osler's conduct in driving while under the influence of alcohol was, as a matter of law, willful and wanton misconduct which could not be compared to any negligence of the city of Lorain.

Osler appealed from the judgment of the trial court and the city "cross-appealed." The court of appeals reversed the trial court's grant of judgment notwithstanding the verdict to the city, but affirmed the granting of a new trial on grounds the verdict was against the manifest weight of the evidence.

The cause is now before this court pursuant to the allowance of a motion and cross-motion to certify the record.

Syllabus by the Court

In considering a motion for judgment notwithstanding the verdict, a court does not weigh the evidence or test the credibility of the witnesses. (Civ.R. 50[B]; Posin v. A.B.C. Motor Court Hotel [1976], 45 Ohio St.2d 271, 275, 344 N.E.2d 334 , approved and followed.)

Miller, Stillman & Bartel and Willard E. Bartel, Cleveland, for appellee and cross-appellant.

Miraldi & Barrett Co., L.P.A., Benjamin F. Barrett and David P. Miraldi; and Edward Zaleski, Director of Law, Lorain, for appellant and cross-appellee.

CELEBREZZE, Chief Justice.

This case requires us to examine and apply fundamental principles of the law of negligence. An integral part of our analysis is the basic and well-settled concept that negligence is without legal consequence unless it is a proximate cause of an injury. See, generally, Prosser & Keeton, Law of Torts (5 Ed.1984) 272-280, Section 42.

We are first called on to determine whether there was error in the trial court's decision to grant the city's motion for judgment notwithstanding the verdict. A favorable ruling on such a motion is not easily obtained, as this court explained in Posin v. A.B.C. Motor Court Hotel (1976), 45 Ohio St.2d 271, 275, 344 N.E.2d 334 :

"The test to be applied by a trial court in ruling on a motion for judgment notwithstanding the verdict is the same test to be applied on a motion for a directed verdict. The evidence adduced at trial and the facts established by admissions in the pleadings and in the record must be construed most strongly in favor of the party against whom the motion is made, and, where there is substantial evidence to support his side of the case, upon which reasonable minds may reach different conclusions, the motion must be denied. Neither the weight of the evidence nor the credibility of the witnesses is for the court's determination in ruling upon either of the above motions. " (Emphasis added.)

It is apparent to us that in granting the city's motion for judgment notwithstanding the verdict, the trial court improperly weighed the evidence of causation in this case. Even if we were to agree with the trial court's assessment that Osler was driving while intoxicated in violation of former R.C. 4511.19(A), ¹ we cannot sanction that court's leap to the conclusion that Osler's intoxication barred recovery for his injury.

The trial court found, and the city asserts on appeal, that the city had no duty to keep its streets open and free from nuisance to those who violate the statute which forbids driving while under the influence of alcohol. However, we believe the court of appeals put the issue in this case in its proper perspective as follows:

"The primary question is not whether the city owes a duty to drunk drivers, but whether the city negligently failed to keep the street in repair and free from nuisance. The next question, assuming negligence is found, is whether the city's failure to meet its statutory duties was the proximate cause of * * * [Osler's] injuries or whether * * * [Osler's] injuries were the result of his own intoxicated state."

It has long been recognized that a person's intoxication will not bar his recovery in a negligence action unless the intoxication is the proximate cause of his injury. This court itself has refused to declare an individual negligent, merely because of his intoxication, absent a causal relation between intoxication and injury. ² Parton v. Weilnau (1959), 169 Ohio St. 145, 151-152, 158 N.E.2d 719 . And we are not alone.

The Supreme Court of Hawaii reached a similar conclusion in a case involving an intoxicated driver and a negligence action against a city for alleged defective maintenance of a highway. In McKenna v. Volkswagenwerk Aktiengesellschaft (1977), 57 Hawaii 460, 558 P.2d 1018, two sisters were killed in a highway collision with the allegedly intoxicated driver of an oncoming car. The personal representatives of the decedents sued, among others, the city of Honolulu, alleging that the city's negligent maintenance of the highway caused the fatal crash. The city contended that it was insulated from liability because the intoxicated driver, and not its negligent maintenance, had caused the accident. The state supreme court overturned a directed verdict in the city's favor, stating that it had not been shown conclusively that the driver's negligence, rather than the city's, was the cause of the collision. The McKenna court's reasoning is consistent with the reasoning of this state and that of others:

" * * * [D]riving a car while under the influence of intoxicating liquor does not constitute actionable negligence or contributory negligence unless there is a causal relationship between the intoxication and the accident. In Anderson v. Morgan, 73 Ariz. 344, 241 P.2d 786 (1952), where the defendant driver was intoxicated but there was no substantial evidence that his operation of his truck proximately caused the accident, a judgment was directed for the defendant. In Atkins v. Moye, 277 N.C. 179, 176 S.E.2d 789 (1970), the plaintiff, one of the drivers in a vehicle accident, was intoxicated. Proof of this fact was held to be insufficient to establish contributory negligence without proof that his condition caused him to operate his automobile in a manner which constituted a proximate cause of the collision." Id. at 467, 558 P.2d at 1024. Accord Landrey v. United Services Auto. Assn. (1970), 49 Wis.2d 150, 158, 181 N.W.2d 407, 412.

These principles are equally applicable to the instant case. The city claims it is...