Brown v. Kozak , 2024 Ohio 670 ( 2024 )

[Cite as Brown v. Kozak, 2024-Ohio-670.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
MAHONING COUNTY
MELANIE A. BROWN,
Plaintiff-Appellant,
v.
ROBERT C. KOZAK,
Defendant,
and
OHIO MUTUAL INSURANCE COMPANY,
Defendant-Appellee.
OPINION AND JUDGMENT ENTRY
Case No. 23 MA 0022
Civil Appeal from the
Court of Common Pleas of Mahoning County, Ohio
Case No. 2019 CV 1914
BEFORE:
Mark A. Hanni, Cheryl L. Waite, Judges,
William A. Klatt, Retired Judge of the Tenth District Court of Appeals,
Sitting by Assignment.
JUDGMENT:
Reversed and Remanded.
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Atty. Irene K. Makridis and Atty. Dimitrios N. Makridis, for Plaintiff-Appellant and
Atty. Craig G. Pelini and Atty. Gianna M. Calzola, Pelini, Campbell & Ricard LLC, for
Defendant-Appellee.
Dated: February 21, 2024
HANNI, J.
{¶1} Plaintiff-Appellant, Melanie A. Brown, appeals from a Mahoning County
Common Pleas Court judgment on the jury verdict in favor of Defendant-Appellee, Ohio
Mutual Insurance Company (Ohio Mutual), on Brown’s uninsured motorist claim.
{¶2} On September 2, 2017, Brown was injured in a motor vehicle accident when
the vehicle Robert C. Kozak was driving struck the side of her car. It was eventually
alleged that Kozak swerved into Brown’s lane of travel when an unknown vehicle failed
to yield to Kozak’s right-of-way, which caused Kozak to take evasive action to the left and
into Brown’s lane.
{¶3} Brown filed a complaint against Kozak on September 19, 2019, for personal
injury resulting from the accident. Kozak answered asserting, among other defenses,
that the statute of limitations had expired on any claim against him. On February 4, 2020,
Kozak filed a motion for summary judgment on this basis.
{¶4} On March 5, 2020, Brown filed a motion for leave to file an amended
complaint to reflect facts she discovered during Kozak’s March 2, 2020 deposition. The
motion stated that Brown learned the accident was caused by an unknown driver who cut
Kozak off and forced him to travel left of center and strike Brown’s car. It further stated
that these newly discovered facts gave rise to a declaratory judgment action against Ohio
Mutual, Brown’s insurer, under the uninsured motorist provision of her policy. The trial
court granted Brown’s motion, allowing her amended complaint to include “Doe I”, “Doe
II”, and Ohio Mutual as defendants.
{¶5} On September 11, 2020, the trial court granted Kozak’s motion for summary
judgment based on the statute of limitations. Thus, the case proceeded only against Ohio
Mutual and Doe.
Case No. 23 MA 0022
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{¶6} Ohio Mutual then filed a motion for summary judgment. The trial court
granted the motion in part and denied it in part. The court found that as to Kozak, Brown
had prejudiced Ohio Mutual’s subrogation rights by filing her action after the statute of
limitations expired. The court further found that there was a genuine issue of material
fact as to the identity of the John Doe driver and, therefore, there was no prejudice against
Ohio Mutual because Ohio Mutual could not subrogate against the unknown driver.
{¶7} The matter proceeded to a jury trial on January 3, 2023. Just prior to trial,
Ohio Mutual admitted that Brown was not at fault at all for the accident. Up until this point,
Ohio Mutual had alleged that Brown was comparatively negligent. The main issue at trial
then was whether Kozak, John Doe, or some combination of the two of them were at fault
in causing the accident. If Kozak was at fault, Brown could not recover against Ohio
Mutual. If John Doe was at fault, Brown could recover under the uninsured motorist
provision of her policy.
{¶8} The jury returned a verdict in favor of Ohio Mutual. In reaching their verdict,
the jury answered several interrogatories, as follows:
1. Was Defendant John Doe, the unidentified driver, negligent?
The jury answered “yes.”
2. Was the negligence, if any, of Defendant John Doe, the unidentified
driver, a direct and proximate cause of injury to Plaintiff?
The jury answered “no.”
3. Was Robert Kozak, the other driver who is not a party to this action,
negligent?
The jury answered “yes.”
4. Was the negligence, if any, of Robert Kozak, the other driver who is
not a party to this action, a direct and proximate cause of the injury
to the Plaintiff?
The jury answered “yes.”
Case No. 23 MA 0022
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5. What percentage of negligence do you assign to Defendant John
Doe, the unidentified driver, and to Robert Kozak, the other driver,
as it relates to the whole sum of damages, if any, sustained by the
Plaintiff, Melanie Brown?
To the fifth interrogatory, the jury assigned 20% of the negligence to John Doe and 80%
of the negligence to Kozak.
{¶9} The interrogatories then stated: “(If you find that the negligence attributable
to Robert Kozak was greater than 50%, your deliberations are complete, and you should
fill out the verdict form for the Defendant. If you find that the negligence attributable to
the Defendant, John Doe, was greater than 50% you shall proceed to the next question.)”
The next/sixth interrogatory asked for the total amount of the compensatory damages
recoverable by Brown. Because the jury found that the negligence attributable to Kozak
was greater than 50%, they concluded their deliberations and did not consider the sixth
interrogatory.
{¶10} Brown filed a timely notice of appeal on February 13, 2023. She now raises
four assignments of error for our review.
{¶11} At the outset, we note that Brown’s counsel failed to object to any of the
alleged errors with the jury instructions/interrogatories that she now takes issue with on
appeal. Thus, we must review each of the assignments of error under the plain error
standard of review.
{¶12} Plain error occurs only when “there is an obvious deviation from a legal rule
that affected the defendant's substantial rights by influencing the outcome of the
proceedings.” In re A.D., 7th Dist. Jefferson Nos. 22 JE 0016, 22 JE 0017, 2023-Ohio-
276, ¶ 55, quoting In re T.J.W., 7th Dist. Jefferson Nos. 13 JE 12, 13 JE 13, 13 JE 14,
2014-Ohio-4419. “[T]he fundamental rule is that an appellate court will not consider any
error which could have been brought to the trial court's attention.” Schade v. Carnegie
Body Co., 70 Ohio St.2d 207, 210, 436 N.E.2d 1001 (1982). “In appeals of civil cases,
the plain error doctrine is not favored and may be applied only in the extremely rare case
involving exceptional circumstances where error, to which no objection was made at the
trial court, seriously affects the basic fairness, integrity, or public reputation of the judicial
Case No. 23 MA 0022
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process, thereby challenging the legitimacy of the underlying judicial process itself.”
Goldfuss v. Davidson, 79 Ohio St.3d 116, 122-123, 679 N.E.2d 1099 (1997).
{¶13} For ease of discussion, we will address Brown’s assignments of error out of
order.
{¶14} Brown’s third assignment of error states:
THE COURT ERRED IN FAILING TO RESUBMIT THE INTERNALLY
INCONSISTENT INTERROGATORIES TO THE JURY FOR THEIR
RECONSIDERATION AND IMPROPERLY ENTERED JUDGMENT FOR
THE DEFENSE DESPITE THEIR INCONSISTENCIES.
{¶15} In Interrogatory 2, the jury found that John Doe’s negligence was not a
proximate cause of Brown’s injuries. In Interrogatory 5, in response to the question of
what percentage of negligence do you assign to John Doe and to Kozak as it relates to
the whole sum of damages, if any, sustained by Brown, the jury apportioned 80% to Kozak
and 20% to John Doe.
{¶16} Here, Brown contends the trial court should not have accepted the jury’s
verdict due to these inconsistent interrogatory answers. Instead, she asserts the court
was required to either send the jury back for further deliberations or order a new trial.
{¶17} Pursuant to Civ.R. 49(B), when the general verdict and the answers to
interrogatories are consistent, the trial court shall enter the appropriate judgment upon
the verdict and answers. When one or more of the interrogatory answers are inconsistent
with the general verdict, the court may enter judgment in accordance with the answers,
notwithstanding the general verdict, or the court may return the jury for further
consideration of its answers and verdict or may order a new trial. Civ.R. 49(B).
{¶18} Here, the jury’s answers to the interrogatories are inconsistent with each
other and with the general verdict.
{¶19} The Ohio Supreme Court has previously recognized plain error in the case
of a jury’s inconsistent answers to interrogatories noting it was necessary “to ensure
public confidence and reliability in the judicial proceedings.” O’Connell v. Chesapeake &
Ohio R. Co., 58 Ohio St.3d 226, 229, 569 N.E.2d 889 (1991).
Case No. 23 MA 0022
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{¶20} In order to prevail on a negligence cause of action, the plaintiff must prove:
a duty owed by the defendant to the plaintiff; a breach of that duty; injury or damages;
and the existence of proximate cause between the breach and the injury or damages.
Lacy v. Wal Mart Stores, 7th Dist. Belmont No. 11 BE 32, 2012-Ohio-1690, ¶ 24, citing
Menifee v. Ohio Welding Products, Inc., 15 Ohio St.3d 75, 77, 472 N.E.2d 707 (1984).
{¶21} In this case, the jury found that John Doe was negligent (Interrogatory 1)
but that John Doe’s negligence was not a proximate cause of Brown’s injuries
(Interrogatory 2). Based on the answers to these interrogatories, John Doe would not be
liable at all to Brown.
{¶22} But to the interrogatory asking what percentage of negligence do you assign
to John Doe and to Robert Kozak, as it relates to the whole sum of damages, if any,
sustained by Brown, the jury answered:
Negligence of Defendant John Doe, the unidentified driver 20 %
Negligence of Robert Kozak, the other driver 80 %
Must Equal 100.00%
(Interrogatory 5). The jury filled in the numbers “20” and “80.” Based on the answers to
this interrogatory, John Doe would be partially liable to Brown. Thus, the interrogatory
answers are inconsistent.
{¶23} Moreover, the jury entered a general verdict for Ohio Mutual. This verdict
likewise is inconsistent with the answer to Interrogatory 5.
{¶24} In examining a similar issue, and ultimately finding plain error, the Ohio
Supreme Court stated:
First and foremost, we believe the determination of causal negligence on
the part of one party to be a precondition to apportioning comparative fault
to that party. It is illogical to require, or even allow, a juror to initially find a
defendant has not acted causally negligently, and then subsequently permit
this juror to assign some degree of fault to that same defendant. Likewise,
where a juror finds that a plaintiff has not acted in a causally negligent
manner, it is incomprehensible to then suggest that this juror may apportion
Case No. 23 MA 0022
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some degree of fault to the plaintiff and thereby diminish or destroy the
injured party's recovery.
O'Connell, 58 Ohio St.3d at 235. The Court went on to reason, “it cannot be denied that
the allocation of fault is a method through which a juror clarifies his or her finding that a
party is causally negligent for the injury sustained. As such, the allocation of fault flows
from the adjudication of negligence and proximate cause.” Id. at 236.
{¶25} In this case, the court permitted the jury to find that John Doe was not a
proximate cause of Brown’s injuries (in other words not causally negligent), yet still
apportion 20% fault to John Doe for Brown’s damages. These findings are logically
inconsistent with each other. Upon recognizing these inconsistent answers, the trial court
should have either returned the jury for further consideration of its answers and verdict or
ordered a new trial.
{¶26} The problem here is further compounded by the issue raised in Brown’s
fourth assignment of error, that the interrogatories are not signed by any of the jurors, as
will be discussed next.
{¶27} Accordingly, Brown’s third assignment of error has merit and is sustained.
{¶28} Brown’s fourth assignment of error states:
THE COURT ERRED IN ACCEPTING THE JURY’S VERDICT IN THE
ABSENCE OF SIGNED JURY INTERROGATORIES.
{¶29} When the jury returned their verdict, the court read the answers to the
interrogatories in open court. (Tr. 460-461). It noted that while the general verdict was
signed, the interrogatories were not. (Tr. 461). Given the lack of signatures, the court
asked the parties if it was necessary to poll the jury. (Tr. 461-462). Ohio Mutual’s counsel
responded “no.” (Tr. 462). Brown’s counsel did not respond.
{¶30} In her final assignment of error, Brown claims the trial court erred in
accepting the interrogatories given that none of the interrogatories were signed by any
jurors.
{¶31} Section 5, Article I of the Ohio Constitution, requires the “concurrence of not
less than three-fourths or more of the jury” for a verdict. Civ.R. 48 provides that “in all
civil actions, a jury shall render a verdict upon concurrence of three-fourths of their
Case No. 23 MA 0022
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number. The verdict shall be in writing and signed by each of the jurors concurring
therein.”
{¶32} In this case, the trial court instructed the jury: “It is necessary that at least
six of the jurors agree on the answers to the interrogatories and on the general verdict.
Those of you who agree will sign in ink the answers to the interrogatories and the general
verdict.” (Tr. 430-431). Later in the instructions the court again told the jury: “A question
[interrogatory] is answered when at least six of the jurors agree. All who agree must sign.”
(Tr. 442).
{¶33} Each of the interrogatory forms contains eight lines below the question
posed for the jurors to sign their names. The last line contains the designation
“Foreman/Forewoman”, indicating the foreperson should sign there if applicable. None
of the forms are signed by any of the jurors despite the fact that the jurors circled the
answers to each question on the forms. Six of the eight jurors (constituting the necessary
¾ majority) did sign the general verdict form.
{¶34} The jury here completely disregarded the trial court’s instructions to sign the
answers to the interrogatories. Given the fact that no jurors signed any of the
interrogatories, we cannot know how many jurors actually agreed with the answers. It
may have been all eight jurors. It may have been six out eight, as required for a ¾
majority. Or it may have only been a simple majority of five out of eight, which would not
be enough to support the answer.
{¶35} The First District Court of Appeals once stated: “The necessary number of
jurors failed to sign answers to certain interrogatories. These are, therefore, valueless
for any purpose.” Swisher v. Cleveland, C., C. & St. L. Ry. Co., 14 Ohio Law Abs. 597,
599 (1st Dist.1933). We cannot guess here how many jurors actually concurred with the
answers to the interrogatories. And given the inconsistencies discussed above with the
answers to the interrogatories and verdict form, this rises to the level of plain error.
{¶36} Clearly, Brown’s counsel should have objected to the unsigned
interrogatories and taken advantage of the opportunity to poll the jury. Likewise, counsel
should have objected to the inconsistent interrogatory answers discussed in the third
assignment of error. But in this case we cannot hold counsel’s carelessness against
Brown. This case is one of the rare cases where the errors made at trial “seriously affects
Case No. 23 MA 0022
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the basic fairness, integrity, or public reputation of the judicial process, thereby
challenging the legitimacy of the underlying judicial process itself.” Goldfuss, 79 Ohio
St.3d at 123.
{¶37} Accordingly, Brown’s fourth assignment of error has merit and is sustained.
{¶38} Given our resolution of Brown’s third and fourth assignments of error, her
first and second assignments of error are now moot.
{¶39} Brown’s first assignment of error states:
THE COURT COMMITTED ERROR IN INSTRUCTING THE JURY TO
STOP DELIBERATIONS AND RETURN A DEFENSE VERDICT UPON
FINDING DOE’S NEGLIGENCE TO BE 50 PERCENT OR LESS.
{¶40} Brown’s second assignment of error states:
THE COURT COMMITTED ERROR IN FAILING TO CORRECT THE
ORIGINAL INTERROGATORIES AND JURY INSTRUCTIONS AFTER
RECOGNIZING THEIR INCONSISTENCY WITH THE JOINT AND
SEVERAL LIABILITY STATUTE.
{¶41} For the reasons stated above, the trial court’s judgment is hereby reversed
and the matter is remanded to the trial court for further proceedings pursuant to law and
consistent with this opinion.
Waite, J., concurs.
Klatt, J., concurs.
Case No. 23 MA 0022
[Cite as Brown v. Kozak, 2024-Ohio-670.]
For the reasons stated in the Opinion rendered herein, the first and second
assignments of error are moot, the third and fourth assignments of error are sustained. It
is the final judgment and order of this Court that the judgment of the Court of Common
Pleas of Mahoning County, Ohio, is reversed. We hereby remand this matter to the trial
court for further proceedings according to law and consistent with this Court’s Opinion.
Costs to be taxed against the Appellee.
A certified copy of this opinion and judgment entry shall constitute the mandate in
this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a
certified copy be sent by the clerk to the trial court to carry this judgment into execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.