Amoako-Okyere v. Church of the Messiah United Methodist Church , 2015 Ohio 3841 ( 2015 )

[Cite as Amoako-Okyere v. Church of the Messiah United Methodist Church, 2015-Ohio-3841.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Tonya Amoako-Okyere, :
Special Administrator of the Estate of
James McCoy III, Deceased, :
Plaintiff-Appellant, : No. 14AP-441
(C.P.C. No. 10CV-3515)
v. :
(REGULAR CALENDAR)
Church of the Messiah United :
Methodist Church et al.,
:
Defendants-Appellees.
:
D E C I S I O N
Rendered on September 22, 2015
Clifford O. Arnebeck, Jr.; Colbert Davis LLP, Franklin C.
Davis, and Brett A. Colbert, for appellant.
Reminger Co., L.P.A., and Melvin J. Davis, for Church of the
Messiah United Methodist Church
APPEAL from the Franklin County Court of Common Pleas
LUPER SCHUSTER, J.
{¶ 1} Plaintiff-appellant, Tonya Amoako-Okyere, special administrator of the
estate of James McCoy III, appeals from a decision and entry of the Franklin County
Court of Common Pleas, granting a directed verdict in favor of defendant-appellee Church
of the Messiah United Methodist Church ("the Church"). Amoako-Okyere additionally
appeals from the trial court's decision and entry denying her motion for new trial. For the
following reasons, we affirm.
No. 14AP-441 2
I. Facts and Procedural History
{¶ 2} On April 22, 2006, while attending the Church's youth camp at Camp
Cotubic in Logan County, Ohio, McCoy died from choking and asphyxiation. It was his
18th birthday. Amoako-Okyere, McCoy's mother, initially filed a complaint on April 23,
2007 against the Church and John Does 1 through 8, asserting a claim for wrongful death.
Amoako-Okyere eventually voluntarily dismissed that complaint on March 5, 2009.
{¶ 3} On March 5, 2010, Amoako-Okyere refiled the complaint, this time naming
the defendants as the Church, Adam Conti (another camper), and John Does 1 through 3,
asserting a survivorship action and a wrongful death claim. The Church filed an answer
on April 9, 2010 denying any wrongdoing and asserting the affirmative defenses of,
among others, McCoy's contributory negligence, the intervening negligence of a third-
party, and the lack of any duty owed to McCoy because he was 18 years old at the time of
his death. Amoako-Okyere filed a notice of voluntary dismissal on August 11, 2010 to
dismiss the claims against Conti, which were barred by the applicable statute of
limitations.
{¶ 4} On September 27, 2010, the Church filed a motion for summary judgment,
arguing Amoako-Okyere's claim of "negligent supervision" fails as a matter of law for
Amoako-Okyere's failure to join as primary tortfeasor before the expiration of the statute
of limitations. The trial court denied the Church's motion for summary judgment in a
June 9, 2011 decision and entry, stating that "[i]t would seem to this Court that a church
which runs a church camp would have some duties with regard to participants in the
church camp, especially children. If the law says otherwise, [the Church] has not pointed
to any such law."
{¶ 5} A jury trial commenced on February 18, 2014. We initially note that
Amoako-Okyere provided this court only with excerpted portions of the trial transcript
rather than a full transcript, so the facts discussed below are only those provided to this
court for review. Amoako-Okyere testified that McCoy asked her if he could attend the
youth camp with the Church, so she went to the Church to speak with Roy Mitchell, the
youth pastor, about the camp. Amoako-Okyere said she specifically asked Mitchell about
supervision during the retreat and Mitchell told her "not to worry about it, we will take
good care of him, he is a good kid." (Tr. Vol. I, 8.) Mitchell informed her the group would
No. 14AP-441 3
leave for camp on Friday, April 21, 2006 around 4:00 p.m. and return around 12:00 p.m.
on Sunday, April 23, 2006.
{¶ 6} On the morning of April 22, 2006, McCoy called Amoako-Okyere from the
camp because it was his birthday and said, "Hey, mom, I'm a man now, I'm 18," and
Amoako-Okyere reminded him that because he was born at 5:06 p.m., he was not "fully a
man until 5:06." (Tr. Vol. I, 9.) Later that day, Amoako-Okyere received a phone call
from her mother that someone had contacted her indicating McCoy had "had an
accident," so Amoako-Okyere called the phone number provided to her and was
connected to the police department. (Tr. Vol. I, 13.) The police connected her to the
hospital, and a doctor informed her that her son had died after being found "hung with a
belt." (Tr. Vol. I, 13.) Amoako-Okyere testified that the doctor gave her no indication that
McCoy's death was a suicide. The first time she heard anyone mention suicide was when
she went to the hospital to identify McCoy's body and a nurse offered her condolences and
said, "suicide is a hard thing." (Tr. Vol. I, 19.) The suggestion of suicide made Amoako-
Okyere "irate" because it "was never [McCoy's] nature," as he was "[h]appy-go-lucky," and
not depressed. (Tr. Vol. I, 19.)
{¶ 7} Because she was upset with how she was treated at the hospital, Amoako-
Okyere insisted that the Logan County Coroner not be the one to perform the autopsy,
and she agreed to have the Montgomery County Coroner perform the autopsy instead.
{¶ 8} Sometime after McCoy's death, Conti came over to Amoako-Okyere's house
and she asked him what happened to her son. Conti told her that he was the one who
found McCoy and cut him down from the tree. Both Conti and another girl who was at
the camp, identified as Hayley Anderson, told Amoako-Okyere that McCoy was
depressed. After finding McCoy hanging in the tree, Conti sent another camper to inform
Mitchell. Conti told Amoako-Okyere that Mitchell ran through the woods to find them
and then instructed another camper to call 911.
{¶ 9} In the days following McCoy's death, Amoako-Okyere said that Mitchell
came to her house and she asked him what happened to her son. Mitchell told her that on
the morning that McCoy died, it "seemed like everything was going well" and they sang
"Happy Birthday" to McCoy. (Tr. Vol. I, 29.) When one of the kids told him something
had happened to McCoy, he ran to where McCoy's body was and attempted to perform
No. 14AP-441 4
CPR. Amoako-Okyere said she asked Mitchell about seeing a belt around McCoy's neck
and that Mitchell told her he had no recollection of any belt. When Amoako-Okyere asked
Mitchell how this could happen, she said Mitchell told her, "I'm sorry, we screwed up. We
didn't watch the boys." (Tr. Vol. I, 29.) Mitchell was accompanied by the senior pastor
from the Church, and the senior pastor informed Amoako-Okyere that they had found a
document in McCoy's handwriting that indicated some suicidal ideations but that the
Church had turned that document over to police and Amoako-Okyere was unable to view
it.
{¶ 10} Amoako-Okyere contacted the Logan County Coroner to ask how he could
conclude McCoy's death was a suicide if he did not actually see the body. The coroner told
her that the police handled the investigation and he concurred with the conclusion that it
was a suicide by asphyxiation and hanging. Amoako-Okyere then contacted the Federal
Bureau of Investigation ("FBI"), and they assured her they would look into the
investigation and that if the police did anything improper, the FBI would handle it. After
that initial conversation, two agents from the FBI came to her house and she offered to
provide them with access to McCoy's computer and belongings. Ultimately, the FBI sent
Amoako-Okyere a letter stating the Justice Department did not find a federal crime in this
situation.
{¶ 11} The excerpted transcript Amoako-Okyere provided to this court did not
include her testimony on cross-examination.
{¶ 12} Barbara Gilliam, Amoako-Okyere's mother and McCoy's grandmother, also
testified. She said she was present when Mitchell came to visit her daughter after McCoy's
death and that Mitchell said "they weren't watching the kids like they should have, and he
was very, very sorry." (Tr. Vol. I, 96.)
{¶ 13} The executive director of Camp Cotubic at the time of McCoy's death,
David L. Stephens, testified that although he is "semi-retired" now, he held the position of
executive director at the camp for 26 years. (Tr. Vol. II, 106-07.) Stephens explained that
Camp Cotubic rented its facilities to the Church and provided food, lodging, and
amenities for the youth retreat. On April 22, 2006, Stephens was in the dining hall at
lunchtime with Mitchell when a camper came in and whispered something in Mitchell's
ear that caused Mitchell to turn and leave the room immediately. Prior to that, Stephens
No. 14AP-441 5
did not hear anyone ask or inquire where McCoy was or note that he was not present in
the dining hall. Stephens looked out the window and saw the direction Mitchell and the
camper were headed, so Stephens got in his vehicle and followed them. Stephens
described the section of woods where Mitchell was running as "very difficult to get into,"
and he said that in his 26 years at the camp, he had not "seen anybody in that section of
woods other than deer hunters." (Tr. Vol. II, 108.) In order to actually reach McCoy,
Mitchell had to crawl across a large tree that was straddling a ravine. When pressed on
re-direct exam whether this incident occurred in a remote place on the camp's property,
Stephens reiterated that he did not think you would be able to see it happen unless you
knew what you were looking for due to the density of the trees and the steep incline in the
landscape, but he admitted that everything happened "within eyeshot" of the main camp
facilities. (Tr. Vol. II, 171.)
{¶ 14} By the time Stephens caught up with Mitchell, Mitchell was down on his
knees performing CPR on McCoy. Stephens described assisting the first responders,
including paramedics, the fire department, and the sheriff's department, find the exact
location in the woods. Mitchell rode in the ambulance with McCoy and Stephens stayed
behind at the camp.
{¶ 15} Stephens said that when he finally arrived at the spot where McCoy was, the
only people there were Mitchell and McCoy. Off to the east, there was a "commotion"
involving another camper who was hysterical and a staff member trying to calm him
down. (Tr. Vol. II, 111.) Stephens could not remember anything that the other camper
said, just noting that he was "screaming" and "hysterical." (Tr. Vol. II, 112.) Stephens
identified this other camper as Conti and said he saw Conti "running across the grounds
with a [camp staffer] chasing after him," but that was not his focus at the time. (Tr. Vol.
II, 115.) When asked if McCoy had a belt around his neck when Stephens saw him,
Stephens said he could not "answer that for sure," and that he "can't picture it." (Tr. Vol.
II, 112.) Stephens said that based on what he saw at the scene, he assumed McCoy had
committed suicide. Upon looking back on the situation, however, Stephens said "there
was a possibility that it wasn't just an all-out suicide, but it might have been the choking
game that kids -- it was predominant during that time." (Tr. Vol. II, 157.) Stephens had
not heard of the "choking game" prior to McCoy's death, but he tried to learn as much
No. 14AP-441 6
about it as he could after this incident and decided "it was a possibility that that was what
happened." (Tr. Vol. II, 158.) Stephens did not explain what the "choking game" entailed.
{¶ 16} Stephens authenticated the document that the camp provides to all the
guest groups that come to camp and requires participants to fill out and sign. The form
provided for the Church's use of Camp Cotubic and was signed by both Stephens and
Mitchell. The form included some general rules for use of the camp, including prohibiting
"hazing or initiation behaviors." (Tr. Vol. II, 135.) Once again, the excerpted transcript
did not include Stephen's testimony on cross-examination.
{¶ 17} The trial court then allowed the reading of the deposition testimony of
Conti, who was unavailable to testify at trial. Conti testified he was a member of the
Church, attended Sunday services and twice-weekly youth group meetings, and played in
the church band from 6th grade through 12th grade. He said he attended the Church's
retreat at Camp Cotubic on April 22, 2006. However, when asked to describe what
happened once he got to the camp, Conti responded that "[b]ased on the advice of counsel
I assert my rights under the Fifth Amendment of the United States Constitution and
respectfully decline to answer the question." (Tr. Vol. II, 215.) Conti gave this same
answer when asked what his relationship was with Amoako-Okyere and McCoy. Conti
continued to "take the Fifth" for the remainder of his deposition testimony, including
when he was asked whether he had a late night conversation with McCoy on the night
before he died; whether he gave a statement to detectives of the Logan County Sheriff's
Department; whether he ever had a conversation with McCoy or anyone else about doing
a prank involving McCoy; whether he participated in a prank on McCoy; whether he
participated in a choking prank; whether he discovered McCoy's body; whether it was
McCoy's belt wrapped around McCoy's neck; whether he handled McCoy's personal
belongings after McCoy's death; whether he wrote any answers in a prayer journal and
attached them to a cover page with McCoy's name; whether he had any knowledge of what
happened to McCoy's belt; and whether he agreed that the supervisors at the camp did not
closely monitor the campers. Conti also "took the Fifth" when asked if he would identify
any exhibits, and one final time when asked whether he recanted the statements he made
to police officers and others during the time of the church retreat.
No. 14AP-441 7
{¶ 18} Reverend Stanley Ling, the senior pastor at the Church when McCoy died,
testified that Mitchell "followed the safe sanctuary guidelines" when working with the
youths in the Church. (Tr. Vol. III, 237.) Reverend Ling described Mitchell as being
"exceptionally good at following guidelines and involving and recruiting people that were
in the church * * * [that] have gifts for working with young people." (Tr. Vol. III, 237.)
The safe sanctuary guidelines provided an adult-to-child ratio for the Church's activities.
For the retreat that McCoy participated in, the safe sanctuary guideline recommended a
ration of one adult to every seven or eight youths, but Mitchell "always tried to have
somewhere around one adult to five or six youth." (Tr. Vol. III, 237.)
{¶ 19} Ling identified the document that announced the youth retreat, and
indicated it told campers not to bring any "prank items" with them to Camp Cotubic. (Tr.
Vol. III, 257.) Ling did not know, specifically, what was meant by "prank items."
Additionally, Ling identified the parent/teen consent form that Amoako-Okyere signed to
give her permission for McCoy to attend the retreat. In pertinent part, the consent form
stated:
We (I) do hereby give my permission for my child, James M.
McCoy III, to attend and participate in all teen activities and
trips sponsored by Church of the Messiah from September 1,
2005 to September 1, 2006.
***
We (I) authorize an adult, in whose care my son or daughter
has been entrusted to, to consent to any x-ray examination,
anesthetic, medical, surgical or dental diagnosis or treatment
and hospital care, to be rendered to my son or daughter under
the general or special supervision and on the advice of any
physician or dentist licensed under the provisions of the
Medical Practice Act on the medical staff of a licensed
hospital, whether such diagnosis is rendered at the office of
said physician or said hospital.
***
We (I) further authorize and give permission to Church of the
Messiah to furnish my son or daughter any necessary
transportation, food and lodging. We (I) give permission for
our (my) son or daughter to ride in any vehicle designated by
the adult in whose care they have been entrusted while
No. 14AP-441 8
attending and participating in all activities sponsored by
Church of the Messiah United Methodist.
(Tr. Vol. III, 263-64.)
{¶ 20} When asked about accompanying Mitchell to speak with Amoako-Okyere
after McCoy had died, Ling said he remembered the visit but he did not remember the
exact words that Mitchell used. Ling did not remember Mitchell "saying anything about
not supervising the young people." (Tr. Vol. III, 271.)
{¶ 21} A friend of McCoy's, Andi Kelley, testified that she first met McCoy in the
seventh grade and the two eventually started dating. Kelley said McCoy never talked to
her about trying to commit suicide or having suicidal thoughts. Kelley described McCoy
as someone who made friends very easily and who was very easy to get along with. When
someone first suggested to Kelley that McCoy's death may have been a suicide, she said
that characterization surprised her and his death was "ridiculously unexpected" because
they "had plans" for big events in the future, including attending their senior prom and
McCoy getting his own car so the two of them would be able to visit each other once they
both started college. (Tr. Vol. IV, 283.) Kelley did not believe that McCoy committed
suicide. The excerpted transcript does not contain Kelley's testimony on cross-
examination.
{¶ 22} On re-direct examination, Amoako-Okyere said her son was committed to
the idea of being a minister after he finished college. Amoako-Okyere said McCoy never
attempted suicide or expressed suicidal ideations, and she added that if he had she would
have known about it. She did not believe McCoy committed suicide because of his
"character," and his faith taught him that suicide is "an unforgivable sin." (Tr. Vol. IV,
305-06.)
{¶ 23} Deputy Sheriff Joseph Kopus of the Logan County Sheriff's Office testified
that he responded to Camp Cotubic on April 22, 2006, the day McCoy died. When he
arrived at the camp, Kopus spoke with Conti, who informed him that he found McCoy in
the woods hanging from a tree. Conti told him that he used a pocketknife to cut the belt
and McCoy fell to the ground. Kopus said Conti told him he threw the knife he used to cut
McCoy down into the pond because "he didn't want the knife he just cut his friend down
with." (Tr. Vol. V, 336.) Kopus then obtained a statement from Conti.
No. 14AP-441 9
{¶ 24} Kopus was not the officer who searched the cabin and bunk where McCoy
had slept. After examining the scene, Kopus went to the hospital and gave the statements
he had obtained from Conti and Anderson to the investigator for the Logan County
Coroner. Kopus also obtained a statement from Mitchell in which Mitchell described
finding McCoy and performing CPR. Kopus prepared a report of the entire incident and
then his involvement in the case was largely finished, though he heard later that some
other officers made a trip to Westerville to interview Conti and Anderson and that a
journal had been located somewhere among McCoy's property. The detectives who
interviewed Conti and Anderson made audio recordings of the interviews, but Kopus was
not present when either of those interviews occurred. Further, Kopus had not listened to
the audio recordings of the interviews.
{¶ 25} Among the exhibits admitted into evidence was the death certificate issued
by the Logan County Coroner. The death certificate listed McCoy's cause of death as
asphyxiation due to or as a consequence of hanging. It further listed the manner of
McCoy's death as suicide.
{¶ 26} At the close of Amoako-Okyere's case, the Church moved for a directed
verdict. Although we do not have the full transcript of proceedings before us, the trial
court stated it was "looking at this in the light most favorable to [Amoako-Okyere]" and
took "suicide out of this," and that it "looked at this in the light most favorable to
[Amoako-Okyere] that this was a prank." (Feb. 26, 2014 Tr. Excerpt, 2.) In a March 5,
2014 decision and entry, the trial court granted the Church's motion for a directed verdict,
concluding that, after considering the evidence and construing it most strongly in favor of
Amoako-Okyere, the Church "was under no duty to supervise [McCoy] as he was an adult
at the time of his death," and that "there was no evidence presented that the injury or
harm to [McCoy] was reasonably foreseeable to [the Church]."
{¶ 27} On April 2, 2014, Amoako-Okyere filed a Civ.R. 59(A) motion for new trial,
arguing the trial court's judgment was contrary to law and not supported by the weight of
the evidence. The trial court denied Amoako-Okyere's motion for new trial in an April 30,
2014 decision and entry. Amoako-Okyere timely appeals both the directed verdict and
the denial of her motion for new trial.
No. 14AP-441 10
II. Assignments of Error
{¶ 28} Amoako-Okyere assigns the following four assignments of error for our
review:
[1.] The trial court below erred to the prejudice of plaintiff-
appellant Tonya Amoako-Okyere by ordering a directed
verdict in favor of defendant-appellee Church of the Messiah
United Methodist Church.
[2.] The trial court below erred to the prejudice of plaintiff-
appellant Tonya Amoako-Okyere by overruling her motion for
a new trial.
[3.] The trial court below erred to the prejudice of plaintiff-
appellant Tonya Amoako-Okyere by admitting into evidence
the death certificate prepared by the Logan County Coroner.
[4.] The trial court below erred to the prejudice of plaintiff-
appellant Tonya Amoako-Okyere by excluding from evidence
the recorded statements made by Adam Conti to Logan
County Sherriff's detectives.
For ease of discussion, we address Amoako-Okyere's assignments of error out of order.
III. First Assignment of Error – Directed Verdict
{¶ 29} In her first assignment of error, Amoako-Okyere argues the trial court erred
when it ordered a directed verdict in favor of the Church.
{¶ 30} When a court considers a motion for a directed verdict, the court must
construe the evidence most strongly in favor of the party against whom the motion is
directed. Civ.R. 50(A). "A motion for a directed verdict raises questions of law, not
factual issues, because it tests whether the evidence is legally sufficient to allow the case to
be presented to the jury for deliberation." Reeves v. Healy, 192 Ohio App. 3d 769, 2011-
Ohio-1487, ¶ 37 (10th Dist.), citing Texler v. D.O. Summers Cleaners & Shirt Laundry
Co., 81 Ohio St. 3d 677, 679-80 (1998). The court's disposition of the motion does not
involve either weighing the evidence or the credibility of the witnesses. Id. at ¶ 37, citing
Texler at 679-80. A court should grant a motion for directed verdict when, "after
construing the evidence most strongly in favor of the party against whom the motion is
directed, 'reasonable minds could come to but one conclusion upon the evidence
submitted and that conclusion is adverse to such party.' " Goodyear Tire & Rubber Co. v.
No. 14AP-441 11
Aetna Cas. & Surety Co., 95 Ohio St. 3d 512, 2002-Ohio-2842, ¶ 3, quoting Civ.R.
50(A)(4).
{¶ 31} By contrast, the court must deny the motion if any evidence of substantial
probative value favors the nonmoving party and reasonable minds might reach different
conclusions on that evidence. Reeves at ¶ 37, citing Texler at 679-80; Strother v.
Hutchinson, 67 Ohio St. 2d 282, 284-85 (1981). "Because a directed verdict tests only the
sufficiency of the evidence, it presents a question of law that appellate courts review de
novo." Reeves at ¶ 37, citing Jarupan v. Hanna, 173 Ohio App. 3d 284, 2007-Ohio-5081,
¶ 8 (10th Dist.), citing Groob v. KeyBank, 108 Ohio St. 3d 348, 2006-Ohio-1189, ¶ 14, and
Goodyear Tire & Rubber Co. at ¶ 4.
A. Partial Transcript
{¶ 32} Initially, the Church argues that because Amoako-Okyere did not provide
this court with a full transcript of the proceedings in the trial court, we must presume the
regularity of the proceedings below and affirm. As we recognized in our recitation of the
statement of facts and procedural history, Amoako-Okyere provided this court with a
transcript that included only the direct and re-direct testimony of numerous witnesses
and did not include cross-examination testimony or the majority of the trial court's
discussion of the Church's motion for directed verdict.
{¶ 33} We recognize the general rule that "[w]hen portions of the transcript
necessary for resolution of assigned errors are omitted from the record, the reviewing
court has nothing to pass upon and thus, as to those assigned errors, the court has no
choice but to presume the validity of the lower court's proceedings, and affirm." Knapp v.
Edwards Laboratories, 61 Ohio St. 2d 197, 199 (1980). However, pursuant to App.R.
9(B)(1), "it is the obligation of the appellant to ensure that the proceedings the appellant
considers necessary for inclusion in the record * * * are transcribed." (Emphasis added.)
Further, App.R. 9(B) requires "a transcript of proceedings that includes all evidence
relevant to the findings or conclusion" when an "appellant intends to present an
assignment of error on appeal that a finding or conclusion is unsupported by the evidence
or is contrary to the weight of the evidence." (Emphasis added.) App.R. 9(B)(4); Hinkle
v. Columbus, 10th Dist. No. 04AP-1195, 2006-Ohio-1522, ¶ 16.
No. 14AP-441 12
{¶ 34} As noted above, reviewing a directed verdict does not present factual issues
but questions of law only. Reeves at ¶ 37. Because a directed verdict tests only the
sufficiency of the evidence, it does not involve the weight of the evidence or the credibility
of witnesses. Strother at 284. This court has recognized that an appellate court can
review a directed verdict from a partial transcript that demonstrates the error assigned to
the lower court. See Masdea Ents., Inc. v. The Spaghetti Place, Inc., 10th Dist. No. 80AP-
231 (June 26, 1980) (stating that "[s]ince the trial court directed a verdict, transcript need
include only evidence upon which, when construed most strongly in favor of plaintiffs,
reasonable minds could differ upon the issue"). Thus, contrary to the Church's argument,
we may consider Amoako-Okyere's assignment of error related to the granting of a
directed verdict in view of the partial transcript she has provided to this court.
B. Existence of a Duty
{¶ 35} To prevail on a wrongful death claim based upon a theory of negligence, a
plaintiff must show "(1) the existence of a duty owing to plaintiff's decedent, i.e., the duty
to exercise ordinary care, (2) a breach of that duty, and (3) proximate causation between
the breach of duty and the death." Bennison v. Stillpass Transit Co., 5 Ohio St. 2d 122
(1966), paragraph one of the syllabus. In order for a party to recover damages for
wrongful death under a theory of negligence, the party must demonstrate all the elements
of negligence. Whiting v. Ohio Dept. of Mental Health, 141 Ohio App. 3d 198, 202 (10th
Dist.2001) Further, " 'negligence is without legal consequence unless it is a proximate
cause of an injury.' " Id. at 202, quoting Osler v. Lorain, 28 Ohio St. 3d 345, 347 (1986).
{¶ 36} In the absence of a duty, no legal liability for negligence can arise.
Smallwood v. MCL, Inc., 10th Dist. No. 14AP-664, 2015-Ohio-1235, ¶ 7, citing Jeffers v.
Olexo, 43 Ohio St. 3d 140, 142 (1989). The existence of a duty is a question of law for a
court to determine. Mussivand v. David, 45 Ohio St. 3d 314, 318 (1989). "Generally, the
existence of a duty depends upon the foreseeability of injury to someone in the plaintiff's
general situation." Smallwood at ¶ 8, citing Cromer v. Children's Hosp. Med. Ctr., 142
Ohio St. 3d 257, 2015-Ohio-229, ¶ 24. "Injury is foreseeable if a reasonably prudent
person would have anticipated that injury was likely to result from the performance or
nonperformance of an act." Id., citing Estates of Morgan v. Fairfield Family Counseling
Ctr., 77 Ohio St. 3d 284, 293 (1997).
No. 14AP-441 13
{¶ 37} In granting the Church's motion for directed verdict, the trial court first
determined the Church did not owe a duty of supervision to McCoy. There is no dispute
that Amoako-Okyere proceeded to trial only on a claim of negligent supervision. In her
complaint, Amoako-Okyere alleged the Church negligently supervised the youth outing at
the camp resulting in McCoy's death. Amoako-Okyere then filed an amended complaint
just prior to the start of trial where she again alleged the Church "assumed the duty to
supervise this youth camp outing and ensure the safety of [McCoy]," and that the Church
"negligently supervised" both McCoy and the other campers allegedly responsible for
harming McCoy. (Amended Complaint, ¶ 4, 8.) Indeed, in her motion for new trial filed
April 2, 2014, Amoako-Okyere again asserted the Church "had a duty to supervise
[McCoy] and all other participants in the church retreat." (Motion for New Trial, 4.) We
must first determine, therefore, what duty, if any, the Church owed to McCoy.
{¶ 38} Ruling on the motion for directed verdict, the trial court stated that, in
viewing the evidence in the light most favorable to Amoako-Okyere, it would construe
McCoy's death to be the result of a prank and not as a result of suicide. Any duty the
Church owed to McCoy is then dependent on the foreseeability of the prank. Amoako-
Okyere argues that pranking was foreseeable because she received an information sheet
from the Church that specifically prohibited campers from bringing "prank items" to the
youth retreat. However Amoako-Okyere presented no evidence of prior pranks at the
Church, the camp, or by the campers attending the camp. In fact, the evidence presented
demonstrated that pranks were specifically prohibited by the Church and the camp. It is
hard to imagine how the prohibited conduct could be foreseeable. Even if the evidence
that pranks were prohibited made pranks somehow foreseeable, there was no evidence
that the so-called "choking game" was the type of prank that fell within the "prank items"
described in the flyer, or that anyone at the youth retreat knew of the choking game or
could have anticipated that any of the retreat attendees would have participated in the
choking game while at Camp Cotubic. Amoako-Okyere does not explain how the Church's
prohibiting prank items makes it foreseeable that some campers might engage in a
choking game prank.
{¶ 39} Ultimately, the record provided to this court demonstrates that Amoako-
Okyere failed to present any evidence that the Church reasonably could have or should
No. 14AP-441 14
have foreseen the "prank" that led to McCoy's injury and death. Without any indication of
foreseeability, the Church could not have had a duty to supervise or protect McCoy, and
Amoako-Okyere's negligent supervision claim fails as a matter of law. Simpson v.
Concord United Methodist Church, 2d Dist. No. 20382, 2005-Ohio-4534, ¶ 25 (stating
that "[u]nlike the issue of the proximate cause of an injury, which presents an issue of fact
for the jury to determine, foreseeability of harm and the existence of a duty of which
foreseeability is an element presents an issue of law for the court to decide"), citing
Mussivand at 318. Following our independent review of the record in which we construed
the evidence in a light most favorable to Amoako-Okyere, we conclude reasonable minds
could come to but one conclusion that the "prank" leading to McCoy's death was not
foreseeable. Accordingly, the trial court did not err in granting the Church's motion for
directed verdict, and we overrule Amoako-Okyere's first assignment of error.
IV. Third and Fourth Assignments of Error – Evidentiary Rulings
{¶ 40} In her third assignment of error, Amoako-Okyere argues the trial court
abused its discretion when it admitted into evidence McCoy's death certificate. In her
fourth and final assignment of error, Amoako-Okyere argues the trial court abused its
discretion when it excluded from evidence the recorded interview of Conti by detectives
from the Logan County Sherriff's Office. Because these assignments of error both concern
evidentiary rulings of the trial court, we address them jointly.
{¶ 41} A trial court has broad discretion over the admission or exclusion of
evidence, and a reviewing court generally will not reverse an evidentiary ruling absent an
abuse of discretion that materially prejudices the affected party. Andrew v. Power
Marketing Direct, Inc., 10th Dist. No. 11AP-603, 2012-Ohio-4371, ¶ 73, citing State v.
Issa, 93 Ohio St. 3d 49, 64 (2001); State v. Barnes, 94 Ohio St. 3d 21, 23 (2002) (noting a
trial court abuses its discretion when it acts "unreasonably, arbitrarily, or
unconscionably").
A. McCoy's Death Certificate
{¶ 42} Amoako-Okyere first argues the trial court erred when it admitted into
evidence McCoy's death certificate prepared by the Logan County Coroner. The death
certificate listed McCoy's cause of death as asphyxiation due to or as a consequence of
hanging. It further listed the manner of McCoy's death as suicide. Amoako-Okyere filed a
No. 14AP-441 15
motion in limine on February 17, 2014 in an attempt to exclude from evidence the death
certificate and other documents which "assert or suggest that [McCoy] killed himself or
otherwise died as a result of suicide." During a pretrial hearing on February 19, 2014, the
trial court determined that the death certificate was self-authenticating and admissible.
{¶ 43} Pursuant to Evid.R. 803(9), records of vital statistics are not excluded as
hearsay. Specifically, the rule allows for "[r]records or data compilations, in any form, of
births, fetal deaths, deaths, or marriages, if the report thereof was made to a public office
pursuant to requirement of law." The death certificate at issue here was signed by the
Logan County Coroner and issued in accordance with standard record keeping of vital
statistics. Thus, we agree with the trial court that the death certificate was self-
authenticating and not excluded as hearsay. See Vargo v. Travelers Ins. Co., Inc., 34
Ohio St. 3d 27 (1987), paragraph one of the syllabus (construing R.C. 313.19 and holding
"The coroner's factual determinations concerning the manner, mode and cause of death,
as expressed in the coroner's report and the death certificate, create a nonbinding
rebuttable presumption concerning such facts in the absence of competent, credible
evidence to the contrary.").
{¶ 44} Amoako-Okyere argues the trial court nonetheless erred when it admitted
the death certificate into evidence because the statements contained in the death
certificate required expert testimony, pursuant to Evid.R. 702, in order to be admissible.
We need not address this argument, however, because the trial court was explicit that
when it considered the Church's motion for directed verdict, it viewed the evidence in the
light most favorable to Amoako-Okyere and construed McCoy's death not as a suicide but
as a result of a prank. Thus, Amoako-Okyere fails to articulate what harm, if any,
stemmed from the trial court's admission into evidence of the death certificate.
{¶ 45} Because the trial court did not abuse its discretion when it admitted
McCoy's death certificate into evidence, we overrule Amoako-Okyere's third assignment
of error.
B. Conti's Recorded Interview
{¶ 46} Amoako-Okyere next argues the trial court abused its discretion when it
excluded from evidence the recorded interview of Conti by detectives from the Logan
County Sherriff's Office. Amoako-Okyere intended to use the recorded interview in
No. 14AP-441 16
support of her argument that Conti participated in a prank on McCoy that resulted in his
death. The trial court determined the recording of the interview had not been properly
authenticated and, thus, it was hearsay that did not fall into any exceptions.
{¶ 47} A statement is inadmissible hearsay when it is an out-of-court statement
offered for the truth of the matter asserted. Evid.R. 801(C) and 802. There are
exceptions to the hearsay rule, however, and those exceptions are listed in Evid.R. 803
and 804.
{¶ 48} Amoako-Okyere argues that Kopus properly authenticated the recording as
being part of the supplemental incident report even though Kopus was not the one who
conducted the interview or made the recording. In pertinent part, Evid.R. 901 provides:
(A) General provision. The requirement of authentication
or identification as a condition precedent to admissibility is
satisfied by evidence sufficient to support a finding that the
matter in question is what its proponent claims.
(B) Illustrations. By way of illustration only, and not by
way of limitation, the following are examples of
authentication or identification conforming with the
requirements of this rule:
(1) Testimony of witness with knowledge. Testimony
that a matter is what it is claimed to be.
***
(7) Public records or reports. Evidence that a writing
authorized by law to be recorded or filed and in fact recorded
or filed in a public office, or a purported public record, report,
statement or data compilation, in any form, is from the public
office where items of this nature are kept.
Amoako-Okyere further argues that police incident reports, in general, are public records,
so the trial court erred when it excluded the recorded interview from evidence. See State
ex rel. Beacon Journal Publishing Co. v. Maurer, 91 Ohio St. 3d 54, 56 (2001) (holding
that an incident report is not a confidential law enforcement investigatory record but is a
public record).
{¶ 49} We note that although Kopus testified he brought the audio recording with
him in response to a subpoena, he was not the one who made the recording and he had
No. 14AP-441 17
not listened to it. We need not determine whether the record here indicates that the audio
recording of Conti's interview was properly authenticated, however, because the trial
court nonetheless properly excluded the contents of the recording as hearsay not within
any exception.
{¶ 50} Generally, "[a] police report is hearsay unless it meets one of the exceptions
enumerated in the Rules of Evidence." Muncy v. Am. Select Ins. Co., 129 Ohio App. 3d 1, 5
(10th Dist.1998), citing Petti v. Perna, 86 Ohio App. 3d 508, 513 (3d Dist.1993). The
firsthand observations of the official making the report fall within the public records
exception to the hearsay rule and are admissible. Id., citing Cincinnati Ins. Co. v.
Volkswagen of Am., Inc., 41 Ohio App. 3d 239, 242 (10th Dist.1987). However, hearsay
statements contained in a police report that do not have an independent source of
admissibility are inadmissible under Evid.R. 803(8). Cincinnati Ins. Co. at 242 (noting
that statements contained in a police report made by private citizens or a person outside
the official agency creates an issue of multiple hearsay).
{¶ 51} Here, Amoako-Okyere did not seek to admit a law enforcement officer's
firsthand observations, but instead sought to admit the statements of Conti, and she
sought to admit those statements to prove the truth of the matter asserted. Conti was
unavailable to testify at trial, and Amoako-Okyere does not point to an exception to the
hearsay rule that would make his statements admissible. Thus, because the recorded
Conti interview was hearsay not within any exception, the trial court did not abuse its
discretion in excluding the recorded interview from evidence. We overrule Amoako-
Okyere's fourth assignment of error.
V. Second Assignment of Error – Motion for New Trial
{¶ 52} In her second assignment of error, Amoako-Okyere argues the trial court
abused its discretion when it denied her motion for new trial.
{¶ 53} As is relevant here, Civ.R. 59(A) provides that a court may grant a motion
for new trial upon any of the following grounds:
(6) The judgment is not sustained by the weight of the
evidence; however, only one new trial may be granted on the
weight of the evidence in the same case;
(7) The judgment is contrary to law;
No. 14AP-441 18
***
(9) Error of law occurring at the trial and brought to the
attention of the trial court by the party making the
application.
{¶ 54} The decision to grant or deny a motion for new trial, pursuant to Civ.R. 59,
lies within the sound discretion of the trial court, and an appellate court will not reverse
that decision absent an abuse of discretion. Sharp v. Norfolk & W. Ry. Co., 72 Ohio St. 3d
307, 312 (1995). An "abuse of discretion" connotes more than an error of law or
judgment; it implies that the court's attitude is unreasonable, arbitrary, or
unconscionable. Blakemore v. Blakemore, 5 Ohio St. 3d 217, 219 (1983).
{¶ 55} Amoako-Okyere's argument in support of her second assignment of error is
a restatement of the arguments she made in her first, third, and fourth assignments of
error. More specifically, Amoako-Okyere argues that the trial court erroneously granted a
directed verdict and abused its discretion in making its evidentiary rulings. According to
Amoako-Okyere, any of these reasons or a combination of the three is sufficient to
warrant a new trial. However, having already determined in our disposition of Amoako-
Okyere's first, third, and fourth assignments of error that the trial court did not err in
granting a directed verdict or abuse its discretion in making its evidentiary rulings, these
arguments similarly fail to support Amoako-Okyere's motion for new trial. Accordingly,
the trial court did not abuse its discretion in denying Amoako-Okyere's motion for new
trial, and we overrule Amoako-Okyere's second assignment of error.
VI. Disposition
{¶ 56} Based on the foregoing reasons, the trial court did not err in granting the
Church's motion for directed verdict, and the trial court did not abuse its discretion in
denying Amoako-Okyere's motion for new trial or in making its evidentiary rulings.
Having overruled Amoako-Okyere's four assignments of error, we affirm the judgment of
the Franklin County Court of Common Pleas.
Judgment affirmed.
TYACK and DORRIAN, JJ., concur.