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Bentley v. Stewart3/23/1992
GWIN, Judge.
Plaintiff, Charles ("Chuck") Bentley, father and next friend of Christopher Bentley, a minor ("appellant"), appeals from the judgment entered in the Muskingum County Court of Common Pleas directing a verdict against appellant and in favor of defendant, Jeannie R. Stewart ("appellee"), after finding the contributory negligence of the minor, Christopher Bentley ("Christopher"), exceeded fifty-one percent of the total negligence a jury could have found in appellant's personal injury action. Appellant assigns as error:
"The Muskingum County Court of Common Pleas erred in finding that plaintiff, Christopher Bentley's own negligence exceeded fifty-one percent (51%) of any total negligence which may have contributed to the accident in question by him and defendant; that since his own negligent conduct as a matter of law exceeded 51%, plaintiff is barred from recovery from the defendant." (Emphasis added.)
Through his sole assignment, appellant maintains the trial court erred in directing a verdict in favor of appellee.
Civ.R. 50(A)(4) sets forth the test for granting a directed verdict on the evidence:
"When a motion for a directed verdict has been properly made, and the trial court, after construing the evidence both strongly in favor of a party against whom the motion is directed, finds that upon any determinative issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such party, the court shall sustain the motion and direct a verdict for the moving party as to that issue."
When ruling on a motion for a directed verdict, the trial court's function in a jury trial is not to weigh the evidence but to "determine whether there is any evidence of substantial probative value in support of the non-moving party's claim." Eldridge v. Firestone Tire & Rubber Co. (1985), 24 Ohio App.3d 94, 96, 24 OBR 164, 166, 493 N.E.2d 293, 295. The Civ.R. 50(A) test looks to the sufficiency of the evidence on each element of a claim to take the case to the jury. Ruta v. Breckenridge-Remy Co. (1982), 69 Ohio St.2d 66, 23 O.O.3d 115, 430 N.E.2d 935. The general rule is that a directed verdict is appropriate only where the party opposing the motion fails to adduce any evidence on the essential elements of his claim or defense. O'Day v. Webb (1972), 29 Ohio St.2d 215, 58 O.O.2d 424, 280 N.E.2d 896. Therefore, a motion for a directed verdict presents a question of law as opposed to a question of fact. Id. Arguments which look to the weight of the evidence are inappropriate for purposes of ruling on such a motion. Strother v. Hutchinson (1981), 67 Ohio St.2d 282, 21 O.O.3d 177, 423 N.E.2d 467.
Here, the trial court granted appellee's motion for a directed verdict after the close of appellee's case-in-chief. Upon review of the entire record, and after construing the evidence most strongly in the favor of appellant, the party against whom the motion was directed, we find that reasonable minds could come to the conclusion that Christopher's contributory negligence did not exceed fifty-one percent of the total negligence involved in the accident in question. Accordingly, the trial court erred in granting a directed verdict in favor of appellee.
In construing the evidence most strongly in favor of appellant, a jury could have reasonably concluded the following: On October 13, 1989, Christopher, a sixteen-year-old ninth grade student at Zanesville High School, decided to skip school with a few friends after lunch. Upon leaving the school premises, Christopher and three of his friends began walking south on a sidewalk located on th
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