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Pusey v. Grief Bros. Corp.12/29/1997
GENE DONOFRIO, Presiding Judge.
Plaintiff-appellant, Ethel L. Pusey, appeals from an order of the Mahoning County Court of Common Pleas granting a directed verdict in favor of defendantappellee, Greif Brothers Corporation, in this wrongful death and survivorship action.
Appellant is the mother of the decedent, Derrell Pusey, who was killed by a gunshot wound to the head in the early morning hours of August 12, 1991, while on property owned by appellee. After the decedent's death, appellant individually and as executor of Derrell Pusey's estate filed this wrongful death and survivorship action against appellee as owner of the property, against Youngstown Security Patrol, Inc., the security company which provided afterhours security guard services to appellee, and against Eric Bator, the security guard employed by Youngstown Security Patrol, who shot the decedent.
Trial to a jury began on October 19, 1994. On October 21, 1994, appellant advised the trial court that she had entered into settlement agreements with Youngstown Security Patrol and with Bator. Appellant continued to present evidence in her case against appellee.
Appellant's claims against appellee were set forth in Counts 3, 6, and 7 of her complaint. Count 3 alleged that appellee had negligently employed Youngstown Security Patrol and Eric Bator to provide security services when neither of them was qualified to provide such services. Count 6 alleged that appellee was negligent per se in employing Youngstown Security Patrol and Bator to provide security services when both were in violation of certain sections of R.C. Chapter 4749, which govern providers of security services in Ohio. Count 7 alleged that appellee was grossly negligent in causing and/or permitting Youngstown Security Patrol and Bator to engage in negligent conduct on its property.
On the morning of October 21, 1994, the jury was taken to view appellee's premises where the shooting occurred. Upon its return, appellant began the presentation of her case. Appellant presented the testimony of sixteen witnesses and some forty-seven exhibits. On October 26, 1994, appellant concluded the presentation of evidence, at which time appellee moved for a directed verdict pursuant to Civ.R. 50(A). After recessing for one day, on October 28, 1994, the trial court issued a ruling from the bench granting the motion for directed verdict. A judgment entry granting the directed verdict was entered upon the docket of the court the same day. However, copies of the written order were not issued to counsel of record by the clerk of courts until November 18, 1994. Appellant then filed this timely appeal.
Appellant has listed two assignments of error. Because of the manner in which we treat the first, we do not reach the second assignment. Appellant's first assignment of error states:
"The trial court erred by failing to set forth with specificity its findings relative to granting directed verdict against appellant and failing to timely serve a copy of its judgment entry on appellant."
Appellant's argument in the first assignment of error is twofold. First, appellant argues that the October 28, 1994 entry of the trial court does nothing more than track the written language of Civ.R. 50 and that it fails to set forth the basis for the court's decision as required by Civ.R. 50(E). According to appellant, Civ.R. 50(E) is mandatory and requires that the court give more than a conclusory statement as the basis for granting a motion for directed verdict. Appellant cites the case of Fertman v. Goodyear Tire & Rubber Co. (Feb. 6, 1986), Cuyahoga App. No. 50061, unreported, 1986 WL 1727, and
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