Williams v. Gragston

• Decision Date: 03 November 1982
• Citation: 455 N.E.2d 1075,7 Ohio App.3d 369,7 OBR 469
• Parties: , 7 O.B.R. 469 WILLIAMS, Appellee, v. GRAGSTON, et al., Appellants; McDermott, Appellee. *
• Court: Ohio Court of Appeals

Page 369

7 Ohio App.3d 369

455 N.E.2d 1075, 7 O.B.R. 469

WILLIAMS, Appellee, v. GRAGSTON, et al., Appellants McDermott, Appellee. ^*

Court of Appeals of Ohio, First District, Hamilton County.

Nov. 3, 1982.

Syllabus by the Court

1. Successive torts, separated and unrelated in time, place or source, constitute a "series of occurrences" within the meaning of Civ.R. 20(A), and a joinder of the tortfeasors as parties in one action by the party injured by the torts is permissible under that statute if a question of law or fact common to all the defendants is apparent from the pleadings.

2. In such a negligence action involving successive injuries to plaintiff in separate and unrelated automobile accidents, where, following the first collision, plaintiff was hospitalized and received medical treatment for the initial injury, one may not assume that however indivisible in effect plaintiff's first injuries became after the second collision, the matter will be incapable of separation as to cause. Consequently, the defendant-tortfeasors are not concurrent tortfeasors jointly liable for the plaintiff's injuries, but are severally liable for the consequences of their several torts.

3. R.C. 2307.31 and 2307.32, the contribution statutes, do not alter the established Ohio law on what constitutes concurrent negligence permitting joint liability of tortfeasors.

Jerald D. Harris, Cincinnati, for plaintiff-appellee.

James R. Hartke, Cincinnati, for appellants.

William H. Hutcherson, Jr., Cincinnati, for defendant-appellee.

PALMER, Judge.

This action was commenced by the filing of a complaint by the plaintiff, James Williams, against defendants-appellants, Cincinnati Yellow Cab Company and Donald F. Gragston, and against defendant-appellee, Marianne McDermott, seeking damages for injuries received in two automobile accidents, the first occurring on June 23, 1979, when a taxicab operated by Gragston collided with a vehicle operated by the plaintiff. The complaint alleged injuries to plaintiff's "teeth, head, neck, back and other parts of his body causing him pain and suffering and permanent disability." The complaint's third cause of action alleged a second automobile collision on August 11, 1979, between automobiles operated by plaintiff and by appellee McDermott, in which plaintiff was alleged to have received injuries to "his head, neck, back, legs, and other parts of his body causing him pain, suffering, and permanent disability." Damages were demanded against the defendants "jointly and/or severally." Defendants-appellants answered and cross-claimed against appellee McDermott, asserting, inter alia, that if liable at all, they were liable only for injuries suffered in the accident prior to the August 11, 1979, collision, and, alternately, that any verdict against appellants "will have been brought about and caused by the actions of * * * McDermott, and not by reason of any negligence on the part of [defendants-appellants]," and demanding judgment against McDermott for any sums recovered by plaintiff against appellants. Appellee McDermott, after answering, moved to dismiss the cross-claim of appellants. This motion was opposed and briefed; it was ultimately granted by the trial court. Appeal was timely filed pursuant to certification under Civ.R. 54(B), with one assignment of error presented for review: that the trial court erred as a matter of law in dismissing the cross-claim for contribution of defendants-appellants against defendant-appellee.

The question posed in this appeal, while quite limited, is not without its small perplexities. Both sides cite the contribution statutes, R.C. 2307.31 and 2307.32, ¹ each finding comfort therein, and each rely on Ryan v. Mackolin (1968), 14 Ohio St.2d 213, 237 N.E.2d 377 , a case with substantial factual similarities to the instant case. Since the Ryan case is the only decision cited to us in point, an analysis of its rule is obviously indicated.

In Ryan, the plaintiff's car had been struck by an automobile operated by one Boley, plaintiff suffering back injuries requiring initial treatment and hospitalization. Five months later, plaintiff's car was again struck by one Mackolin, resulting in further problems to his back requiring surgical procedures. Ryan then filed suit, joining as defendants both Boley and Mackolin, and prayed for judgment "against the defendants, either jointly or severally." Id. at 214, 237 N.E.2d 377. A demurrer was sustained based on misjoinder of the defendants and of the causes of action, and improper joinder of causes of action. The court of appeals reversed and the Supreme Court sustained the reversal.

It is apparent from the decision and the syllabus in Ryan that two questions concerned the Supreme Court: first whether a joinder of the two tortfeasors as parties in one action was permissible where the successive torts were separated and unrelated in time, place or source; and, second, whether the liability of the tortfeasors was, as prayed for in the complaint, a joint as well as a several liability. The second question is of obvious pertinence to the instant inquiry.

Addressing the first question, the court examined the then controlling statute, R.C. 2307.191, the predecessor of Civ.R. 20(A), finding that the successive rear-end collisions constituted a "series of occurrences" within the meaning of the statute, and that the causal contribution of each defendant to the plaintiff's injuries was a question of fact common to all parties more effectively determinable in a single action before one trier of fact--at least until such point as it might become manifest that some injustice would result, in which event separate trials might be ordered. The rule was embodied in paragraph one of the syllabus, as follows:

"Successive torts, separated and unrelated in time, place or source, constitute a 'series of occurrences' within the meaning of Section 2307.191, Revised Code, and a joinder of the tort-feasors as parties in one action by the party injured by the torts is permissible under that statute if a question of law or fact common to all the defendants is apparent from the pleadings."

There is no reason to believe (and the question is not raised here) that the substitution of the substantially similar Civ.R. 20(A) for R.C. 2307.191 has resulted in any alteration of this rule.

The second question, concerning the joint or several liability of the tortfeasors, was next addressed by the Ryan court. Although not debated in terms of the contribution statutes, R.C. 2307.31 and 2307.32, not then in effect, the pertinency of the discussion will become apparent. Justice Schneider, speaking for a majority of the court, ² first cited the general rule found in 22 American Jurisprudence 2d (1965) 30, Damages, Section 14, that " * * * tort-feasors generally will not be held jointly or severably liable where their independent, concurring acts have caused distinct and separate injuries to the plaintiff, or where some reasonable means of apportioning the damages is evident" (emphasis sic ), and found Ohio in accord with the statement of the rule. Id. at 219, 237 N.E.2d 377. First National Bank of Barnesville v. Western Union Telegraph Co. (1876), 30 Ohio St. 555. Distinguishing the Michigan case of Maddux v. Donaldson (1961), 326 Mich. 425, 108 N.W.2d 33, urged by the appellant in Ryan, which involved a chain-reaction type of accident with the first collision coming some thirty seconds before the second, Justice Schneider cited the syllabus rules of Garbe v. Halloran (1948), 150 Ohio St. 476, 83 N.E.2d 217 , on concurrent negligence, restating them as follows:

"The concurrence required in Ohio, so as to permit not only the joinder of, but a joint judgment against, both tort-feasors, is not in the production of an injury, but in the negligent placement of plaintiff by the first tort-feasor in a zone of danger so that the negligence of the second tort-feasor injures plaintiff while involuntarily in that zone of danger." (Emphasis added.) Id. at 220, 237 N.E.2d 377.

Applying this rule to the Ryan facts, the court concluded against joint liability of the tortfeasors in the following words:

"Although we are obliged to indulge in every inference favorable to the pleader, we cannot ignore the allegation in the petition herein that following the first collision Ryan was hospitalized and received medical treatment for an injury to his back. The nature and extent of the disabling effect of that collision having been subject to medical scrutiny, we cannot assume that however indivisible in effect plaintiff's back injury became after the second collision, it will be incapable of separation as to cause. The sequence of events here is not such that, however difficult, it should be insurmountable to chart the course of cause to effect as to subsequent event adds its force to the flow. See Milks v. McIver, 264 N.Y. 267, 190 N.E. 487." Id. at 222, 237 N.E.2d 377.

We are unable to distinguish in any material respect the allegations of the instant complaint from these summarized above in Ryan. Here, as there, the plaintiff was hospitalized and received medical treatment after the initial injury. Here, as there, one may not assume that however indivisible in effect the first injuries...