 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Schellhouse v. Norfolk & Western Ry. Co.8/21/1991
HERBERT R. BROWN, J.
For the reasons which follow, we reverse the judgment of the court of appeals and remand this case for a new trial. The difficulty faced by the trial court, the court of appeals, and now this court, stems from the failure to follow Civ.R. 49 in the trial of this case. Our analysis starts at that point.
This case was submitted to the jury as a set of five interrogatories, with no instruction or form given the jury directing it to return a general verdict. This resulted in what is known as a "special verdict." See Black's Law Dictionary (6 Ed.1990) 1560.
Civ.R. 49(C) commands that " pecial verdicts shall not be used." (Emphasis added.) This prohibition was written into the Rules of Civil Procedure in response to the many difficulties encountered with special verdicts in pre-Rule civil practice. See Staff Note to Civ.R. 49. Civ.R. 49(A) provides: "A general verdict, by which the jury finds generally in favor of the prevailing party, shall be used." In place of the old special verdict, the drafters provided, in Civ.R. 49(B), for the use of interrogatories in combination with the general verdict as a means of attaining the perceived advantages of the special verdict while avoiding its disadvantages. See Staff Note, supra.
The instant case demonstrates the wisdom of adherence to Civ.R. 49(C). The jury's answers to Interrogatory Nos. 4 and 5 are impossible to reconcile. Either the railroad committed an intentional tort or it did not. If it did, on the record before us, we do not see how the jury could have concluded that the negligence "attributable" to the railroad was only thirty-five percent. Further, the jury made no finding that the acts of the railroad which constituted "actual malice" were a proximate cause of the accident. Nor did the jury specifically find that defendant's acts constituted an intentional tort.
The trial judge was also, it would appear, confused by the answers to these interrogatories. The trial judge attempted to resolve the confusion by entering a verdict for the plaintiff in the amount of thirty-five percent of the total damages which the jury found. This attempted compromise, as the court of appeals noted, is not permissible.
If the railroad did not commit an intentional tort, but was only thirty-five percent negligent as opposed to the sixty-five percent attributed to the plaintiff's decedent, then the plaintiff is not entitled to damages and a verdict for the defendant should have been entered. R.C. 2315.19(C).
If the railroad committed an intentional tort with malice and if that intentional tort was the proximate cause of plaintiff's damage, the negligence of the plaintiff's decedent is not a defense and the plaintiff would have been entitled to a full recovery, not merely thirty-five percent. Acts committed with actual malice constitute behavior qualitatively different from that which may be characterized as merely negligent. Accordingly, prior to the adoptiosof R.C. 2315.19, the absolute bar to recovery which attached to the defense of contributory negligence was unavailable where the acts of the defendant were reckless or intentional. Thus, in Kellerman v. J.S. Durig Co. (1964), 176 Ohio St. 320, 27 O.O.2d 241, 199 N.E.2d 562, paragraph three of the syllabus provided:
"Where wanton misconduct on the part of a defendant existed, negligence on the part of the plaintiff is not available as a defense." See, also, Payne v. Vance (1921), 103 Ohio St. 59, 133 N.E. 85, paragraph four of the syllabus.
Contributory negligence, prior to the enactment of R.C. 2315.19, did not bar recovery in an action predicated upon the will
Page 1 2 3 Ohio Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|