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Mitchell v. Altercare11/13/2000
JUDGMENT: Affirmed
Appellant Emma Mitchell, Executor of the Estate of Richard Mitchell, appeals the decision of the Stark County Court of Common Pleas that rendered a verdict in favor of Appellee Altercare of Canton ("Altercare"). The following facts give rise to this appeal. On December 17, 1998, Richard Mitchell, age sixty-five, was admitted to Appellee Altercare for rehabilitation following a stroke. Due to the stroke, Mr. Mitchell could not speak or swallow because his right-side was paralyzed. It was also determined, at the time of his admission, that Mr. Mitchell had a high choking risk. Because Mr. Mitchell was not able to eat or drink anything, he was fed via a peg tube surgically inserted into his stomach. Mr. Mitchell was also designated an "NPO" resident, which means nothing by mouth. On the morning of December 20, 1998, Mr. Mitchell died due to asphyxiation from a piece of meat lodged in his throat. On April 28, 1999, appellant filed a personal injury action for survivorship and wrongful death. This matter proceeded to trial on March 6, 2000. On March 10, 2000, the jury rendered a verdict in favor of Appellee Altercare finding that its employees were not negligent in their care of Mr. Mitchell. The trial court journalized the entry on March 16, 2000. Appellant filed a motion for new trial on March 24, 2000. The trial court overruled appellant's motion on April 12, 2000. Appellant timely filed her notice of appeal and sets forth the following assignment of error for our consideration:
I. THE JURY VERDICT RENDERED IN THIS MATTER WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
I.
In her sole assignment of error, appellant contends the jury's verdict finding no negligence on the part of Appellee Altercare and its employees is against the manifest weight of the evidence. We disagree. As an appellate court, we are not fact finders. We neither weigh the evidence nor judge the credibility of the witnesses. Our role is to determine whether there is relevant, competent and credible evidence upon which the fact finder could base its judgment. Cross Truck v. Jeffries (Feb. 10, 1982), Stark App. No. CA-5758, unreported. Accordingly, judgments supported by some competent, credible evidence going to all the essential elements of the case will not be reversed as being against the manifest weight of the evidence. C.E. Morris Co. v. Foley Construction (1978), 54 Ohio St.2d 279, 281. It is based on this standard that we review appellant's assignment of error. In support of this assignment of error, appellant argues the evidence presented to the jury clearly established that Appellee Altercare and its employees deviated from the required standard of care. Further, based on the answers to the jury interrogatories, appellant argues the jury based its decision solely on the issue of negligence and did not consider the issues of proximate cause or comparative negligence. In order to maintain a cause of action for negligence, appellant must establish the following three elements: (1) that appellee owed a duty to appellant; (2) that appellee breached that duty; and (3) damage proximately resulting from the breach. See Jeffers v. Olexo (1989), 43 Ohio St.3d 140, 142; Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St.3d 75, 77. Appellant sets forth three arguments regarding the issue of standard of care. First, appellant contends Appellee Altercare, and specifically, Nurses Tara Hertel and Amy Glass, failed to properly assess Mr. Mitchell's condition as they completed their early morning rounds. The record supports the conclusion that when Nurses Hertel and Glass observed appellant on the morning of December 20, 1998, he was displaying the type of behavior he had dis
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