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Drehmer v. Fylak9/9/2005
{ } This is an appeal from an order of the court of common pleas granting the Plaintiff's Civ.R. 59(A) motion for a new trial in an action for personal injuries.
{ } On May 24, 2001, a collision occurred involving vehicles driven by Plaintiff, Timothy Drehmer, and Defendant, Ivan M. Fylak. It is undisputed that the accident proximately resulted from Defendant Fylak's negligence.
{ } Plaintiff Drehmer commenced an action for personal injuries of two kinds: injury to his midsection and internal organs resulting from contraction of his vehicle's seatbelt, and aggravation of pre-existing injuries of his left shoulder resulting from the trauma of the collision, for which surgery was required. Because liability was not in dispute, the issues the jury was required to determine were the existence of those alleged injuries, whether they were proximately caused by the collision, and Plaintiff's damage claims for reasonable and necessary medical expenses, lost wages, and pain and suffering.
{ } After hearing the evidence and arguments, the jury returned a verdict for the Plaintiff in the amount of $5,250.55. In a separate interrogatory the jury stated that its award consisted of $4,950.55 for medical expenses, $300 for lost wages, and zero dollars for pain and suffering. The amount of the damages awarded corresponds to evidence of the medical expenses and lost wages arising from the seat belt injuries. The jury awarded nothing for the alleged shoulder injuries.
{ } Plaintiff filed a motion for a new trial pursuant to Civ.R. 59(A), arguing several alternative grounds for relief. The trial court rejected all but one. The court found that the jury's failure to award even nominal damages for pain and suffering for the uncontroverted seat belt injury was "not sustained by the weight of the evidence." Civ.R. 59(A)(6). The court ordered a retrial of all claims for relief. The court rejected Defendant's request to limit the retrial to the pain and suffering claim as it relates to the seat belt injury.
{ } Defendant Fylak filed a timely notice of appeal. Plaintiff Drehmer filed a timely notice of cross-appeal.
Defendant Fylak's Appeal
FIRST ASSIGNMENT OF ERROR
{ } "THE TRIAL COURT ABUSED IT DISCRETION IN AWARDING PLAINTIFF A NEW TRIAL AND ITS DETERMINATION THAT THE JURY'S VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE BECAUSE IT DID NOT AWARD PLAINTIFF DAMAGES FOR PAIN AND SUFFERING."
{ } Whether to grant or deny a motion for new trial rests with the sound discretion of the trial court, and its judgment will not be disturbed absent an abuse of discretion. Yungwirth v. McAvoy (1972), 32 Ohio St.2d 285. An abuse of discretion is shown when a decision is unreasonable; that is, when there is no sound reasoning process that would support the decision. AAA Enterprises v. River Place Community (1990), 50 Ohio St.3d 157.
{ } Civ.R. 59(A)(6) authorizes the court to vacate a judgment and grant a new trial upon the motion of "all or any of the parties and on all or part of the issues" the judgment concerns, upon a finding that the judgment "is not sustained by the weight of the evidence." "In order to set aside a damage award as inadequate and against the manifest weight of the evidence, a reviewing court must determine that the verdict is so gross as to shock the sense of justice and fairness, cannot be reconciled with the undisputed evidence in the case, or is the result of an apparent failure by the jury to include all the items of damage making up the plaintiff's claim." Bailey v. Allberry (1993), 88 Ohio App.3d 432, 435.
{ } Unlike an appellate court, which may order the retrial of
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