Jenkins v. Krieger ( 1981 )

Per Curiam.

The pivotal issue presented for review in this appeal is whether the Court of Common Pleas erred in granting defendant-appellant’s motion for judgment notwithstanding the verdict or, in the event such order was found to be erroneous, mandating a new trial of the issues.

The trial court in its opinion accompanying the order granting the motion concluded that it had erred in failing to direct a verdict for the defendant at the close of plaintiff’s evidence.¹⁰

Plaintiff’s action against the sheriff for damages stemming from his alleged custodial negligence was predicated, necessarily, upon two sections of the Ohio Revised Code.

R. C. 341.01 provides:

“The sheriff shall have charge of the county jail and all persons confined therein. He shall keep such persons safely, attend to the jail, and govern and regulate the jail according to the rules and regulations prescribed by the court of common pleas.”

R. C. 311.05 provides:

“The sheriff shall be responsible for the neglect of duty or misconduct in office of each of his deputies.”

Despite its ultimate conclusion, in retrospect, that the plaintiff had failed to show negligence attributable to the defendant as sheriff, the trial court in its opinion rationalizing the granting of defendant’s post-trial motion found “that the rule of evidence known as res ipsa loquitur applies with peculiar force in this case* * *.”

It is axiomatic that res ipsa loquitur is a rule of evidence that permits the trier of fact to infer negligence on the part of the defendant from the circumstances of the injury. To warrant application of the rule a plaintiff must adduce evidence in support of two conclusions: “(1) [t]hat the instrumentality causing the injury was, at the time of the injury, or at the time of the creation of the condition causing the injury, under the exclusive management and control of the defendant; and (2) that the injury occurred under such circumstances that in the ordinary course of events it would not have occurred if ordinary care had been observed.” Hake v. Wiedemann Brewing Co. (1970), 23 Ohio St. 2d 65, 66-67.

Beyond cavil, the proximate cause of Hicks’ death was the fire in his cell. The trial court reasoned that although Hicks was confined in an isolation cell for good cause,¹¹ i.e., enforcement of the rule against fighting, the cell contained no device by which help might be summoned in an emergency. This prompted the conclusion that the jury was free to infer negligence and, or, contributory negligence. Then, in order to exculpate the defendant from the legal consequences of the application of the doctrine of res ipsa loquitur, the court held that because the board of county commissioners had not provided the defendant any funds that would have enabled him to provide emergency alarm facilities and “another deputy or two” to afford attention to prisoners in isolation, the sheriff could not be held liable for Hicks’ death.

The Court of Appeals rejected the trial court’s rationale, declaring that it must fail first because of the mandate expressed in R. C. 341.01 that prisoners be kept safely and, secondly, because the facts of the case did not justify a conclusion that the adequacy of the sheriff’s staff had any bearing upon whether there were negligent acts committed by-deputies of the sheriff that proximately caused the death of Hicks. The court did not comment upon the propriety of the application of the doctrine of res ipsa loquitur.¹² It did conclude from its comparison of the evidence, however, that reasonable minds could have concluded, inter alia, that when Hicks was placed in the isolation cell, jail personnel failed to search his person as required by established policy; that, resultantly, they failed to discover the matches that were the cause of the fire;¹³ and that had prompt attention been given when the fire was first noticed, Hicks would have lived.

R. C. 341.01 is a codification of the common law duty of a sheriff to employ ordinary care in keeping the prisoners confided to his custody and in protecting them from hazards that are, or should be, known to him. See Justice v. Rose (1957), 102 Ohio App. 482, 484-485. Whether the decision of the Court of Appeals has delineated a greater duty for a sheriff than that of exercising ordinary care for the safekeeping of his prisoners, or has implicitly made him an insurer of their safety by eliding the traditional criterion of foreseeability of the risk engendered by the environment in assessing the degree of care owed to Hicks—an argument advanced by appellant—is a question that we do not now decide because we agree with the Court of Appeals that there was sufficient evidence to enable the jury to conclude that the negligence of appellant’s deputies contributed proximately to Hicks’ death. Accordingly, we affirm that part of the judgment of the Court of Appeals reversing the trial court’s order that judgment be entered for the defendant notwithstanding the verdict.¹⁴

We come now to consider the appellant’s proposition that the Court of Appeals erred in reversing the order granting the motion for a new trial. Appellant’s argument is that where, as here, reversal of a trial court’s decision granting a new trial pursuant to Civ. R. 59 is sought on appeal,¹⁵ an appellate court must find that the trial court abused its discretion in granting the new trial.

Where a trial court is authorized to grant a new trial for a reason that requires the exercise of a sound discretion, the order granting the new trial may be reversed only upon a showing of abuse of discretion by the trial court. Yungwirth v. McAvoy (1972), 32 Ohio St. 2d 285, 286; Rohde v. Farmer (1970), 23 Ohio St. 2d 82, paragraph one of the syllabus.

In Rohde, supra, we noted the basic distinction, one of substantially universal recognition, between the action of a trial court in granting a new trial and its action in granting judgment notwithstanding the verdict. We stated, at page 93, quoting Holland v. Brown (1964), 15 Utah 2d 422, 426, 394 P. 2d 77:

“ ‘In appraising this action of the trial court, it is important to distinguish between the granting of a new trial and entering of a judgment notwithstanding the verdict. As to the former, the trial court is indeed endowed with a wide latitude of discretion in granting a new trial when he thinks the jury’s verdict results in manifest injustice. This power is necessary to fulfill his function of maintaining general supervision over litigation to guard against miscarriages of justice which sometimes occur at the hands of juries. ***’ ”

In the case sub judice, the trial court’s decision on the motion for a new trial involved questions of fact. Consequently, the generally accepted rule is that a reviewing court should view the evidence favorably to the trial court’s action rather than to the jury’s verdict. The predicate for that rule springs, in part, from the principle that the discretion of the trial judge in granting a new trial may be supported by his having determined from the surrounding circumstances and atmosphere of the trial that the jury’s verdict resulted in manifest injustice. Id. at 94.

Although in the opinion supporting its decision the trial court accented the conduct of trial counsel as a factor compelling the granting of the motion, a comparison of all the parts of the opinion supports the conclusion that the trial judge determined that, cumulatively, the aberrations, both procedural and substantive, that pervade this record mandated a new trial of the issues free from such influences.

This case falls within the ambit of Rohde, and the Court of Appeals erred in reversing the trial court’s granting of a new trial without considering matters beyond misconduct of counsel and the use of improper tactics that would justify a new trial where the trial court was convinced a manifest injustice had been done.

The record persuades us that the original assessment of the magnitude and ultimate result of the errors that had occurred in a lengthy, sometimes heated trial of a case with an unusually bizarre scenario was correct, and that the trial court did not abuse its discretion in concluding that manifest injustice could be averted only by a retrial.

The judgment of the Court of Appeals is affirmed in part and reversed in part, and the cause is remanded to the Court of Common Pleas for a new trial.

Judgment affirmed in part and reversed in part.

Celebrezze, C. J., Shannon, Mahoney, Sweeney, Locher and Holmes, JJ., concur. C. Brown, J., concurs in part and dissents in part. Shannon, J., of the First Appellate District, sitting for W. Brown, J. Mahoney, J., of the Ninth Appellate District, sitting for P. Brown, J.

10 The trial court wrote: “The Court has concluded that it erred in failing to direct a verdict for plaintiff [sic] at the close of plaintiffs evidence because the evidence fails to show negligence which can properly be charged to the defendant.” It is obvious that the use of the word “plaintiff’ was improvident, and that the court intended to state “defendant.”

11 The trial court wrote: “He was not there because of any capriciously unconsidered or malevolently motivated act of defendant or any deputy or by virtue of any acts amounting to a denial of any constitutional right.”

12 The defendant-appellant argues in this court that the trial court erred in instructing the jury on the law of res ipsa loquitur. However, the record demonstrates that counsel for the sheriff failed to object to the charge pursuant to Civ. R. 51(A). Resultantly, the asserted error was not preserved for review. Yungwirth v. McAvoy (1972), 32 Ohio St. 2d 285.

13 Paradoxically, there is evidence in the record that the jail regulations promulgated by the Court of Common Pleas required the sheriff to supply cigarettes and tobacco to prisoners who did not have the means to procure such items for themselves.

14 The Court of Appeals, in electing to reverse the trial court on the ground that there was palpable evidence of custodial negligence, avoided ruling upon the adequacy of proof by plaintiff of her claims based upon deprivation of constitutional rights. The court did, however, recognize the anomaly presented by the trial court’s issuance of jury instructions on that issue and the statement in its opinion that it had granted a directed verdict for the defendant on such part of plaintiff’s complaint.

15 The trial court in its opinion stated: “On reviewing the entire cause the court has concluded that it must* **[g]rant defendant’s motion for a new trial in the sound discretion of the court as authorized by Civil Rule 59(D).”