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Abbott v. Kolenc5/5/1999
JUDGMENT: Affirmed
Appellant Billie Jo Abbott appeals a judgment of the Knox County Common Pleas Court awarding her damages in the amount of $9050.92 against appellees Jason Kolenc and State Farm Mutual Automobile Insurance:
"ASSIGNMENTS OF ERROR "ASSIGNMENT OF ERROR NO. 1 "THE TRIAL COURT ERRED BY NOT DIRECTING A VERDICT AS TO THE ISSUE OF THE NEGLIGENCE OF DEFENDANT JASON KOLENC AT THE CONCLUSION OF PLAINTIFF'S CASE. "ASSIGNMENT OF ERROR NO. 2 "THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY ALLOWING INTO EVIDENCE AND LATER INSTRUCTING THE JURY ON THE APPLICABILITY OF THE FIVE THOUSAND DOLLAR "MEDPAY" PROVISION IN PLAINTIFF-APPELLANT'S BILLIE JO ABBOTT'S INSURANCE. "ASSIGNMENT OF ERROR NO. 3 "THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY NOT INSTRUCTING THE JURY AS TO THE APPLICABILITY OF PUNITIVE DAMAGES. "ASSIGNMENT OF ERROR NO. 4 THE TRIAL COURT ERRED BY INSTRUCTING THE JURY AS TO THE APPLICABILITY OF CONTRIBUTORY NEGLIGENCE."
Appellant was employed as a road crew laborer. She was required to attend certain seminars in order to be sufficiently trained in the handling of certain chemicals and machines. On February 5, 1996, appellant was attending one of the seminars. She ran into Kelly Cunningham, a friend of hers. Appellant and Cunningham went together to a bar. At the bar, appellant and Cunningham ran into Kolenc and Sal Mominey, who was married to appellant at the time of trial. Around 11: 00 or 11: 30, appellant and Cunningham decided to leave the bar. Kolenc requested a ride, as he also was going to the seminar training center. According to Kolenc, Mominey was planning to "smoke a joint" on the way back, and Kolenc did not want the smell of marijuana on his clothes when he returned to the training center. Cunningham and appellant agreed to give a ride to Kolenc and his friend, Dennis James. Cunningham was not feeling well, and was unable to drive. According to appellant, Cunningham asked her to drive the car, but Kolenc took the keys from her and insisted on driving. According to Kolenc, Cunningham asked him to drive the car. Kolenc claimed that appellant and Cunningham sat within fifteen feet of him while he drank six beers at the bar. The car proceeded on the road back to the training center. According to Kolenc, Sal Mominey passed him on a two-lane road and cut him off, causing Kolenc to brake and hit the guardrail. According to Mominey, he was always driving in front of Kolenc, and Kolenc lost control of the car. The passengers of the car were taken to the nearby Knox Community Hospital. Appellant was examined and released the same day after receiving treatment. The next day, feeling sharp pain in her head and neck, appellee was taken to Bethesda Hospital in Zanesville. The doctors at the hospital examined appellant, and told her that she had a fracture of the C-7 vertebra, and that she had glass in her ear. Appellant filed the instant action against Kolenc and State Farm, alleging negligence. Appellant was insured under a policy issued by State Farm Insurance at the time of the accident. The case proceeded to jury trial in the Knox County Common Pleas Court. The jury returned a verdict in favor of appellant in amount $15,084.86. The jury also found that appellant was forty percent contributorily negligent. The court accordingly modified the award to $9,050.92.
I.
Appellant argues that the court erred as a matter of law by failing to direct a verdict against Kolenc on her claim for negligence. As the jury returned a verdict finding Kolenc to be negligent, any possible error in failing to direct a verdict is rendered harmless. The first assignment of error is overruled.
II.
Appellant argues that
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