McGugan v. Olszewski

2020 Ohio 4992

ZECHARIAH MCGUGAN, Plaintiff-Appellant, v. PATRICIA A. OLSZEWSKI, Defendant-Appellee.

No. 109099

COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

October 22, 2020

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED

Civil Appeal from the Cuyahoga County Court of Common Pleas

Case No. CV-18-899710

Appearances:

Law Office of J. Michael Goldberg L.L.C. and J. Michael Goldberg, for appellant.

Ankuda, Stadler & Moeller, Ltd. and Colin P. Moeller, for appellee.

ANITA LASTER MAYS, P.J.:

{¶ 1} Plaintiff-appellant Zechariah McGugan ("McGugan") appeals the amount of damages awarded by the jury, and asks this court to remand for a new trial to determine the proper amount of damages. We affirm the jury's award.

I. Facts and Procedural History

{¶ 2} On December 11, 2017, defendant-appellee Patricia A. Olszewski ("Olszewski") was involved in a motor accident with McGugan, where Olszewski's negligence caused the accident as her vehicle traveled into the path of McGugan's motorcycle. Although Olszewski's vehicle did not strike McGugan's motorcycle, because of her negligent actions, McGugan was forced to lay down his motorcycle, causing him physical injury. McGugan was transported by ambulance to the hospital, where he was treated for a soft-tissue sprain on his left foot. He also suffered road rash to his elbow and knee. McGugan was given a prescription for pain medication but never filled it. He was also referred to a podiatrist, whom he never contacted.

{¶ 3} In addition to the physical injuries, McGugan stated he also suffered recurring nightmares of the accident. Because of persistent pain, McGugan saw an orthopedic doctor in January 2018. The doctor diagnosed McGugan with acute pain of the left knee, and referred McGugan to physical therapy to strengthen his knee. McGugan attended eight physical therapy sessions and his pain lessened. At the conclusion of his physical therapy, McGugan stated to his physical therapist that he was riding his motorcycle again and that he had returned to running three miles at an 8:30 minute pace. After completion of McGugan's physical therapy, he did not see any other medical professionals regarding his injuries from the accident.

{¶ 4} In May 2018, McGugan completed a 20-day, 6,000-mile motorcycle ride from Cleveland to Florida. Thereafter, McGugan completed a 1,000-mile motorcycle trip from Cleveland to Colorado, and then to Utah. At trial, McGugan testified that his knee pain was a one on a scale of one to ten.

{¶ 5} Prior to the trial, Olszewski formally stipulated that her negligence was the cause of the accident. Although Olszewski's vehicle traveled into the path of McGugan's motorcycle, Olszewski's vehicle never made contact with the motorcycle. On June 5, 2019, McGugan's case went to trial where he did not call any medical experts or treatment providers to testify, but his medical records were admitted as a joint exhibit. McGugan and his roommate testified on his behalf. McGugan's roommate testified that McGugan was injured and complained of having nightmares, and that McGugan was not as active as he had been before the accident. McGugan's roommate further testified that McGugan became more of a homebody after the crash, not socializing with friends like he used to before the accident. At the conclusion of trial and during jury deliberations, the jury submitted two questions to the trial court. The jury asked: (1) if Olszewski's insurance covered any medical and repair bills; and (2) if the lawsuit was personal or an insurance lawsuit. The trial court, with the consent of both counsel, instructed the jury to decide the case only on the evidence presented. The jury returned with a verdict in favor of McGugan for noneconomic damages of $10,000.

{¶ 6} On July 5, 2019, McGugan filed a motion for a new trial on damages only, and the trial court denied that motion on September 9, 2019.¹ McGugan filedthis appeal, appealing the jury's verdict. McGugan has assigned two errors for our review:

I. The judgment as to the amount of damages awarded by the jury is against the manifest weight of the evidence, where inadequate damages appear to have been given under the influence of passion or prejudice, and;

II. The judgment as to the amount of damages is against the manifest weight of the evidence, where the jury rendered an inadequate award for general damages.

II. Manifest Weight of the Evidence

{¶ 7} In McGugan's assignments of error, he argues that the jury's award of $10,000 is against the manifest weight of the evidence.

When reviewing the manifest weight of the evidence in a civil case, this court weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the finder of fact clearly lost its way and created such a manifest miscarriage of justice that the judgment must be reversed and a new trial ordered. Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 20. A verdict supported by some competent, credible evidence going to all the essential elements of the case must not be reversed as being against the manifest weight of the evidence. Domaradzki v. Sliwinski, 8th Dist. Cuyahoga No. 94975, 2011-Ohio-2259, ¶ 6; C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978), syllabus.

Austin v. Chukwuani, 2017-Ohio-106, 80 N.E.3d 1199, ¶ 44 (8th Dist.).

{¶ 8} The presumption is that the jury's findings are correct because they had the opportunity "'to view the witnesses and observe their demeanor, gestures and voice inflections, and use these observations in weighing the credibility of the proffered testimony.'" Id. at ¶ 46, citing Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984).

{¶ 9} The "weight of the evidence concerns 'the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other.'" Id. at ¶ 45, citing State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting Black's Law Dictionary 1594 (6th Ed.1990).

{¶ 10} McGugan argues that the jury lost its way when it awarded him just $10,000 in damages, and because of the jury's verdict, the trial court must grant a new trial under Civ.R. 59(A)(4), which states, "A new trial may be granted to all or any of the parties and on all or part of the issues upon any of the following grounds: Excessive or inadequate damages, appearing to have been given under the influence of passion or prejudice."

{¶ 11} McGugan contends that the jury appeared to be under the influence of passion or prejudice because it rendered a verdict less than two minutes after receiving the court's answers to the two questions posed during jury deliberations. The jury questions were (1) if Olszewski's insurance covered any medical or repair bills; and (2) if the lawsuit was personal or insurance related. Before posing the two questions to the trial court, the jury deliberated for almost an hour.

{¶ 12} With regard to jury deliberations,

"'the verdict should be the result of sound judgment, dispassionate consideration, and conscientions [sic] reflection * * *.'" [Val Decker Packing Co. v. Treon, 88 Ohio App. 479, 489, 97 N.E.2d 696 (2d Dist.1950)], quoting 64 Corpus Juris, Section 808, at 1019. "Brief deliberation, by itself, does not show that the jury failed to give full, conscientious or impartial consideration to the evidence." Wilburn v. Eastman Kodak Co., 180 F.3d 475, 476 (2d Cir.1999). "There is no statutory provision prescribing the length of time a jury shall deliberate before reaching a verdict." Val Decker at 489. "'[W]here the law does not positively prescribe the length of time a jury shall consider their verdict, they may render a valid verdict without retiring, or on very brief deliberation after retiring * * *.'" Val Decker at 489, quoting 64 Corpus Juris, Section 808, at 1019.

(Citations omitted.) State v. Thompson, 2d Dist. Montgomery No. 26954, 2016-Ohio-7521, ¶ 69 quoting State v. Brown, 2d Dist. Champaign No. 2015-CA-21, 2016-Ohio-4573, ¶ 9.

{¶ 13} Additionally, "[t]he length of time a jury should deliberate and whether it should be returned for further deliberations is a matter generally within the discretion of the trial judge." State v. Sherman, 6th Dist. Sandusky No. S-87-9, 1987 Ohio App. LEXIS 8835 (Sept. 25, 1987), citing State v. Swanson, 9 Ohio App.2d 60, (8th Dist.1967); Dobbins v. State, 14 Ohio St. 493 [1863 Ohio LEXIS 96] (1863). The length of jury deliberations is generally not relevant, and a verdict is presumed valid. See, e.g., D.E. Barnes, Inc. v. Schwemlein, 4th Dist. Ross No. 872, 1982 Ohio App. LEXIS 14077 (June 9, 1982). Therefore, we find the argument regarding the length of deliberations has no merit.

{¶ 14} Despite McGugan's arguments or contentions, we must then weigh the evidence and all reasonable inferences, consider the credibility of witnesses, and determine whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the judgment must be reversed and a new trial ordered. McGugan argues that the jury did not fully compensate him for the injuries he suffered as a result of the negligence of Olszewski.

{¶ 15} McGugan's physical injuries included a soft-tissue sprain on his left foot, road rash on his elbow and knee, and acute knee pain. He had to attend physical therapy for eight sessions, and after physical therapy, he returned to running miles and riding his motorcycle for thousands of miles. While McGugan testified that he had recurring nightmares for months after the crash, he also testified that he did not fill the prescription for pain medication and did not see the podiatrist that he was referred to by the emergency-room doctor. The record supports the fact that medical experts did not testify as to the extent of McGugan's injuries or even testify at all. Finally, McGugan acknowledged...