equating the test regarding review of a JNOV to the test applied to review a directed verdictSummary of this case from Wagoner v. Obert
Decided December 26, 1986.
Civil procedure — Judgment notwithstanding the verdict — Civ. R. 50(B) — Standards for granting motion.
O.Jur 2d Judgments § 881.
In considering a motion for judgment notwithstanding the verdict, a court does not weigh the evidence or test the credibility of the witnesses. (Civ. R. 50[B]; Posin v. A.B.C. Motor Court Hotel, 45 Ohio St.2d 271, 275 [74 O.O.2d 427], approved and followed.)
APPEAL and CROSS-APPEAL from the Court of Appeals for Lorain County.
On the evening of February 14, 1980, appellee and cross-appellant, Jerald Osler, was driving home from a birthday party for a friend. Osler had consumed alcoholic beverages at that party. The route home took Osler over Leavitt Road in Lorain. As he was driving, his car struck a bump in the road at the point of a curve, causing him to lose control of the vehicle, run off the road and strike a utility pole. Osler's spinal cord was damaged and the injury rendered him a quadriplegic. Although a blood test performed at the treating hospital less than two hours after the accident revealed that Osler's blood-alcohol level was .141 percent, it appears he was never charged or convicted of driving a motor vehicle while intoxicated.
Osler subsequently brought a negligence claim against the appellant and cross-appellee, city of Lorain. The complaint alleged that the city negligently failed to keep Leavitt Road open and free of nuisance pursuant to R.C. 723.01 and that the city had notice of the dangerous condition of the road in the area where his accident took place.
On September 4, 1984, Osler's case went to trial. Conflicting evidence was presented as to the level of Osler's alcohol impairment, if any, and as to whether his earlier drinking was the proximate cause of his accident. Conflicting evidence was also adduced concerning the dangerous condition of the road where Osler's accident took place and its causal relation to the accident. At the close of evidence and argument, the case was submitted to the jury, which was instructed in accordance with Ohio's comparative negligence statute, R.C. 2315.19. The jurors returned a general verdict for Osler, finding the city seventy percent negligent and Osler thirty percent negligent. The trial court entered a $2.8 million judgment in Osler's favor.
Thereafter, the city moved for judgment notwithstanding the verdict, or alternatively, for a new trial. The trial court granted the motion. In entering judgment notwithstanding the verdict in favor of the city, the court determined, inter alia, that the "uncontradicted" evidence at trial proved that Osler could have been found guilty, beyond a reasonable doubt, of driving while intoxicated in violation of former R.C. 4511.19(A). The trial court then reasoned that, as a matter of law, Osler's injury was the result of his intoxication, and concluded:
"* * * The Court finds that the City of Lorain was not negligent in that it was under no duty to keep its streets accident-proof for those operating vehicles while under the influence of alcohol in violation of R.C., Sec. 4511.19(A)(2) [ sic]. The Court further finds that, assuming that the City of Lorain was negligent, Plaintiff was more than 50% contributorily negligent as a matter of law by voluntarily driving a vehicle while under the influence of alcohol in violation of R.C., Sec. 4511.19(A)(2) [ sic]."
The court also conditionally granted the city's motion for a new trial on two grounds: (1) the verdict was against the manifest weight of the evidence, and (2) the verdict was contrary to law. In this portion of its ruling, the trial court referred to Osler's familiarity with the bump in the road, the dry and clear condition of the road on the night of the accident, and Osler's testimony that he had been drinking on an empty stomach as factors showing that the jury's verdict in his favor was against the manifest weight of the evidence.
The court further found that a new trial was necessary because Osler's case should not have been submitted to the jury under the comparative negligence law, R.C. 2315.19. The court stated that Osler's conduct in driving while under the influence of alcohol was, as a matter of law, willful and wanton misconduct which could not be compared to any negligence of the city of Lorain.
Osler appealed from the judgment of the trial court and the city "cross-appealed." The court of appeals reversed the trial court's grant of judgment notwithstanding the verdict to the city, but affirmed the granting of a new trial on grounds the verdict was against the manifest weight of the evidence.
The cause is now before this court pursuant to the allowance of a motion and cross-motion to certify the record.
Miller, Stillman Bartel and Willard E. Bartel, for appellee and cross-appellant.
Miraldi Barrett Co., L.P.A., Benjamin F. Barrett and David P. Miraldi; and Edward Zaleski, director of law, for appellant and cross-appellee.
This case requires us to examine and apply fundamental principles of the law of negligence. An integral part of our analysis is the basic and well-settled concept that negligence is without legal consequence unless it is a proximate cause of an injury. See, generally, Prosser Keeton, Law of Torts (5 Ed. 1984) 272-280, Section 42.
We are first called on to determine whether there was error in the trial court's decision to grant the city's motion for judgment notwithstanding the verdict. A favorable ruling on such a motion is not easily obtained, as this court explained in Posin v. A.B.C. Motor Court Hotel (1976), 45 Ohio St.2d 271, 275 [74 O.O.2d 427]:
"The test to be applied by a trial court in ruling on a motion for judgment notwithstanding the verdict is the same test to be applied on a motion for a directed verdict. The evidence adduced at trial and the facts established by admissions in the pleadings and in the record must be construed most strongly in favor of the party against whom the motion is made, and, where there is substantial evidence to support his side of the case, upon which reasonable minds may reach different conclusions, the motion must be denied. Neither the weight of the evidence nor the credibility of the witnesses is for the court's determination in ruling upon either of the above motions." (Emphasis added.)
It is apparent to us that in granting the city's motion for judgment notwithstanding the verdict, the trial court improperly weighed the evidence of causation in this case. Even if we were to agree with the trial court's assessment that Osler was driving while intoxicated in violation of former R.C. 4511.19(A), we cannot sanction that court's leap to the conclusion that Osler's intoxication barred recovery for his injury.
The evidence regarding Osler's level of intoxication was not entirely conclusive. Both of the city's experts wrre forced to admit, on cross-examination, that they could not definitely state what Osler's blood-alcohol content was at the time of his accident. Further, a witness who was at the birthday party with Osler testified that Osler did not appear to be intoxicated.
The trial court found, and the city asserts on appeal, that the city had no duty to keep its streets open and free from nuisance to those who violate the statute which forbids driving while under the influence of alcohol. However, we believe the court of appeals put the issue in this case in its proper perspective as follows:
"The primary question is not whether the city owes a duty to drunk drivers, but whether the city negligently failed to keep the street in repair and free from nuisance. The next question, assuming negligence is found, is whether the city's failure to meet its statutory duties was the proximate cause of * * * [Osler's] injuries or whether * * * [Osler's] injuries were the result of his own intoxicated state."
It has long been recognized that a person's intoxication will not bar his recovery in a negligence action unless the intoxication is the proximate cause of his injury. This court itself has refused to declare an individual negligent, merely because of his intoxication, absent a causal relation between intoxication and injury. Parton v. Weilnau (1959), 169 Ohio St. 145, 151-152 [8 O.O.2d 134]. And we are not alone.
R.C. 2315.19, the comparative negligence statute, incorporates the fundamental common-law concept of proximate cause. R.C. 2315.19(A)(1) provides in pertinent part:
"In negligence actions, the contributory negligence of a person does not bar the person or his legal representative from recovering damages that have directly and proximately resulted from the negligence of one or more other persons, if the contributory negligence of the person bringing the action was no greater than the combined negligence of all other persons from whom recovery is sought. However, any damages recoverable by the person bringing the action shall be diminished by an amount that is proportionately equal to his percentage of negligence, which percentage is determined pursuant to division (B) of this section." (Emphasis added.)
The Supreme Court of Hawaii reached a similar conclusion in a case involving an intoxicated driver and a negligence action against a city for alleged defective maintenance of a highway. In McKenna v. Volkswagenwerk Aktiengesellschaft (1977), 57 Haw. 460 Hawaii, 558 P.2d 1018, two sisters were killed in a highway collision with the allegedly intoxicated driver of an oncoming car. The personal representatives of the decedents sued, among others, the city of Honolulu, alleging that the city's negligent maintenance of the highway caused the fatal crash. The city contended that it was insulated from liability because the intoxicated driver, and not its negligent maintenance, had caused the accident. The state supreme court overturned a directed verdict in the city's favor, stating that it had not been shown conclusively that the driver's negligence, rather than the city's, was the cause of the collision. The McKenna court's reasoning is consistent with the reasoning of this state and that of others:
"* * * [D]riving a car while under the influence of intoxicating liquor does not constitute actionable negligence or contributory negligence unless there is a causal relationship between the intoxication and the accident. In Anderson v. Morgan, 73 Ariz. 344, 241 P.2d 786 (1952), where the defendant driver was intoxicated but there was no substantial evidence that his operation of his truck proximately caused the accident, a judgment was directed for the defendant. In Atkins v. Moye, 277 N.C. 179, 176 S.E.2d 789 (1970), the plaintiff, one of the drivers in a vehicle accident, was intoxicated. Proof of this fact was held to be insufficient to establish contributory negligence without proof that his condition caused him to operate his automobile in a manner which constituted a proximate cause of the collision." Id. at 467, 558 P.2d at 1024. Accord Landrey v. United Services Auto. Assn. (1970), 49 Wis.2d 150, 158, 181 N.W.2d 407, 412.
These principles are equally applicable to the instant case. The city claims it is insulated from liability for Osler's injury because he was driving while intoxicated in violation of R.C. 4511.19. However, it is error to propose an equation in which Osler's intoxication equals negligence, thus barring his recovery under R.C. 2315.19, without factoring in the evidence at trial relating to the cause or causes of his injury.
The principle that causation must be shown before a plaintiff can be denied recovery on the basis of his intoxication is not a new one. In Allen v. Pearson (1915), 89 Conn. 401, 94 A. 277, the injured plaintiff, a motorcyclist, was involved in a collision with the driver of an automobile. In a post-trial proceeding, the driver-defendant sought a new trial on grounds that the plaintiff was driving his motorcycle while intoxicated, and thus should be barred from recovery by his own contributory negligence. The Supreme Court of Connecticut held as follows:
"If * * * [plaintiff] was operating his motor-cycle on the highway while under the influence of intoxicating liquor at the time of his injury, he was violating chapter 85 of the Public Acts of 1911 * * * but that fact would not be enough to change the result of the former trial. The * * * [defendant] would be required to go further, and introduce evidence to show that such violation of the statute was a proximate cause of * * * [plaintiff's] injuries." Id. at 403, 94 A. at 278.
There was substantial expert and factual testimony adduced at trial to the effect that the condition of the city's road was defective and dangerous. There was substantial evidence which showed that the city's negligent failure to keep the road open and free from nuisance was the proximate cause of Osler's accident and injury. The jury's verdict reflected this view of the evidence. Yet the trial court apparently decided that the foregoing evidence of causation had no weight or credibility, or was irrelevant, for it ruled as a matter of law that Osler's injury was solely the result of his own negligence in driving while intoxicated. This was improper. In considering a motion for judgment notwithstanding the verdict, a court does not weigh the evidence or test the credibility of the witnesses. Civ. R. 50(B); Posin, supra, at 275. The court of appeals was therefore correct in finding error in the trial court's grant of judgment to the city, and we affirm the court of appeals' decision in this regard.
We turn now to the question of whether the grant of a new trial was error. Two grounds were specified here, and we will first review the determination to grant a new trial on the basis that the verdict was contrary to law. The trial court ruled that the case should not have been submitted to the jury under Ohio's comparative negligence statute, R.C. 2315.19. The city urges us to approve this ruling and contends that Osler's conduct in driving while intoxicated was, as a matter of law, willful or wanton misconduct which could not be compared to the city's negligent conduct.
We must reject this contention. Although it is true that such misconduct is in legal contemplation different from a "merely" negligent act, courts have held that the act of driving while intoxicated is not in and of itself willful or wanton misconduct as a matter of law. See, e.g., Gossett v. Jackson (1965), 10 Ohio App.2d 121, 123 [39 O.O.2d 201]; Russell v. Elkins (1961), 115 Ohio App. 341, 345 [16 O.O.2d 472]. There must be evidence of other aggravating facts and circumstances in order to show that an act was willful or wanton in nature. See, e.g., Helleren v. Dixon (1949), 152 Ohio St. 40 [39 O.O. 368].
Further, this court has previously observed that the question of whether an automobile driver's alleged unlawful conduct was wanton or willful is a question of fact for the jury to consider in light of all the surrounding facts and circumstances. See Hawkins v. Ivy (1977), 50 Ohio St.2d 114, 117 [4 O.O.3d 243]; Tighe v. Diamond (1948), 149 Ohio St. 520, 528-530 [37 O.O. 243].
Thus, only in the most egregious cases should a court find willful or wanton misconduct as a matter of law. Such a finding was properly made by the court of appeals in Kemock v. The Mark II (1978), 62 Ohio App.2d 103, 117-118 [16 O.O.3d 254] where the decedent was not only driving while intoxicated, but also exceeded the speed limit, made an illegal right hand turn on red, and attempted to elude a police officer before his fatal crash. The evidence in the instant case, however, does not reveal any such aggravating factors beyond Osler's alleged intoxication. In fact, the city in its answer did not even assert Osler's supposed willful and wanton misconduct as a defense. Thus, based on the evidence adduced at trial, this case was properly submitted to the jury under the comparative negligence statute and the trial court erred in holding Osler's conduct to have been willful and wanton as a matter of law.
It should additionally be pointed out that the city apparently did not allege, in any of its pre- or post-trial motions, that Osler's recovery should be barred by his willful or wanton misconduct. Nor was this argument relied on by the city at the hearing on its motion for a new trial. This theory did not spring to life until the trial court ruled favorably on that motion.
Finally, we must consider whether there was error in the grant of a new trial on the grounds the jury's verdict was against the manifest weight of the evidence.
Although we have previously stated that the trial court's entry of judgment notwithstanding the verdict was improper, our analysis of the court's grant of a new trial necessarily involves a different standard of review. This court has stated that in ruling on a motion for a new trial, the trial court is afforded wide discretion in determining whether a jury's verdict is against the manifest weight of the evidence, for the court must ensure, in its supervisory capacity, against a miscarriage of justice. Rohde v. Farmer (1970), 23 Ohio St.2d 82, 91-93 [52 O.O.2d 376]; Jenkins v. Krieger (1981), 67 Ohio St.2d 314, 320 [21 O.O.3d 198]. The trial court may examine the sufficiency of the evidence in so doing. Rohde, supra, at 92. Where the trial court's decision on the motion for a new trial involves questions of fact, as in this case, our task as a reviewing court is to "view the evidence favorably to the trial court's action rather than to the jury's verdict." Krieger, supra, at 320.
This court's review of a decision to grant a new trial does not involve an evaluation or weighing of the evidence, Rohde, supra, at 94-95, and the trial court's judgment should not be reversed absent an abuse of discretion, id. at paragraph one of the syllabus. Because the trial court herein set forth facts which constituted a reasonable basis for the determination that the verdict was against the manifest weight of the evidence, we find no abuse of its discretion in granting the city's motion for a new trial. Antal v. Olde Worlde Products, Inc. (1984), 9 Ohio St.3d 144.
Specifically, the trial court found:
"(1) He had frequently driven around this curve on Leavitt Road prior to the incident in question; he was aware of the bump in the roadway, characterizing it as a `bad bump'; and he had never before lost control of his vehicle or driven off of the roadway when travelling this curve.
"(2) At the time in question, the roadway was dry and free of ice and snow.
"(3) At the time of the collision, Plaintiff weighed approximately 175 pounds.
"(4) On the morning of February 14, 1980, Plaintiff had breakfast between 10:00 a.m. and 11:00 a.m. and had essentially nothing else to eat the rest of the day.
"(5) Between the time it started to get dark on that day and approximately 7:30 p.m., Plaintiff drank two and a half Brandy Alexanders, which were served in small glasses, and one beer."
Because we are remanding this cause for a new trial, we decline to address the procedural question involving the propriety of the city's "cross-assignments" of error in the court of appeals.
Judgment affirmed and cause remanded.
SWEENEY, LOCHER and WRIGHT, JJ., concur.
HOLMES, J., concurs separately.
DOUGLAS, J., concurs in judgment only.
C. BROWN, J., concurs in part and dissents in part.
I concur with the majority, but would like to add that, in my view, the result reached today does not preclude a trial court, in applying comparative negligence principles, under appropriate facts, not here involved, from directing a verdict or entering a judgment notwithstanding the verdict. Had there been further evidence in the case sub judice of Osler's lack of control over his actions and his automobile, e.g., that he stumbled into his car, or drove it over curbs left of center or through stop signs or stop lights, or drove swervingly down the road, or any other series of events demonstrating intoxication to the point of debilitation, the trial court would have acted properly in finding Osler more than fifty percent negligent as a matter of law, thus denying him any recovery under R.C. 2315.19. Accordingly, it was stated in Junge v. Brothers (1985), 16 Ohio St.3d 1, 4: "Although circumstances could arise under which a directed verdict would be appropriate in a comparative negligence situation, the facts of the case at bar are irreconcilable with that conclusion." The same holds true as to judgments notwithstanding the verdict, since the same test is used in ruling on those motions as for ruling on motions for directed verdicts. Posin v. A.B.C. Motor Court Hotel (1976), 45 Ohio St.2d 271, 275 [74 O.O.2d 427].
Here, the only evidence of intoxication was that Osler had a blood-alcohol percentage of .141 some two hours after the accident. The only evidence relative to Osler's driving was that he was driving at a speed greater than the posted speed limit of fifty m.p.h. just before he reached the curve on State Route 58, and that when Osler's automobile hit the bump, his car went out of control, struck a utility pole and rolled down an embankment. Upon a review of the record, I agree that this evidence, in addition to the testimony that Osler had no speech or walking difficulties upon leaving the party, supports the court of appeals' and our conclusion that the trial court's judgment notwithstanding the jury verdict, finding Osler more than fifty percent negligent as a matter of law, was inappropriate.
I further concur with the holding here that, based upon all of the evidence within the record, the trial court did not abuse its discretion in finding that the verdict of the jury was against the manifest weight of the evidence, and ordering a new trial.
I abhor child pornography equally with all my brother justices as variously expressed by them. However, the only issue for determination, and a narrow one at that, is whether R.C. 2907.322(A)(5), which prohibits possession or control of any material showing a minor engaging in sexual activity, is constitutional. The majority opinion articulately and cogently analyzes this issue and the Stanley and Ferber holdings of the United States Supreme Court which, under the principle of judicial obedience, alone govern and control our judgment on this issue. As the result of that excellent discussion, Chief Justice Celebrezze has clearly, unequivocally and unambiguously stated the conclusion and judgment that R.C. 2907.322(A)(5) — as accurately set forth in the syllabus — is constitutional. The majority opinion makes it clear that the principles contained in New York v. Ferber (1982), 458 U.S. 747, require the judgment reached, and that Stanley v. Georgia (1969), 394 U.S. 557, can be harmonized therewith. That is also clearly revealed in the syllabus.
Many inexplicable, grandiose statements, obviously designed for grandstanding effect, are contained in the concurring opinions. Such statements are a pretense at jurisprudential erudition in a case receiving widespread public attention, fulfilling an urge for public recognition and acclaim. It is in an obvious effort to share with the majority opinion the judicial glory in upholding the child pornography law. The obvious impression is that an opinion-writing field day was proclaimed and law clerks were inspired to run rampant, citing and discussing a multitude of cases decided by the United States Supreme Court on the subject of obscenity, and otherwise, totally irrelevant to the narrow issue in this case: the constitutionality of R.C. 2907.322(A)(5) as measured by Stanley and Ferber.
For example, one concurring opinion finds it necessary to discuss contraband and the "clear and present danger" test, while another is compelled to discuss what is or is not "obscene," when throughout this action both the parties and all the courts involved have proceeded on the basis of the defendant's admission that the materials in question were obscene; no Miller issue exists in the instant cause, thus any Miller analysis is irrelevant. (See Miller v. California, 413 U.S. 15.)
A third concurring opinion presents a dissertation on the right of privacy, the cornerstone of which is the use of Griswold v. Connecticut (1965), 381 U.S. 479, in a manner completely inconsistent with the law as stated by that case.
It is well-established in our nation's jurisprudence that "fundamental [to our free society] is the right to be free, except in very limited circumstances, from unwanted governmental intrusions into one's privacy." Stanley at 564. (Emphasis added.) There is no question that a right of privacy exists. Griswold at 485 (see, also, the cases cited therein); yet, in useless surplusage and unfortunate dicta, a concurring opinion quotes at length from the dissent in Griswold in an attempt to single-handedly overrule the law of our nation as expounded by our nation's highest court. It is obvious that the mandate of the United States Supreme Court in declaring the existence of a right to privacy is the law, while a dissent which contradicts that mandate cannot be the law. The mere personal opinion of a state court justice does not change that fact.
Furthermore, even if the law, as correctly stated by the majority in Griswold, is viewed, Griswold is still not relevant to the analysis of the cause now before the court. The essence of the privacy interests in Griswold — that married persons may not constitutionally be declared criminals for using contraceptive devices — "concern[ed] a relationship lying within the zone of privacy created by several fundamental constitutional guarantees." Griswold at 485. (Emphasis added.) Stanley, however, is "firmly grounded in the First Amendment." Bowers v. Hardwick (1986), 478 U.S. ___, 92 L. Ed. 2d 140, 148-149 (emphasis added). Thus, there is no Griswold issue in this case and any analysis involving Griswold is too remote from the issue in the case at bar to have any relevance.
In short, it is my view that the three other concurring opinions are a studied effort at obfuscation rather than clarification. That is caused by a discussion or a citation of the following cases irrelevant to our unanimous decision, namely: Beauharnais v. Illinois (1952), 343 U.S. 250; Winters v. New York (1948), 333 U.S. 507; Chaplinsky v. New Hampshire (1942), 315 U.S. 568; Miller v. California (1973), 413 U.S. 15; Schenck v. United States (1919), 249 U.S. 47; United States v. Thirty-seven Photographs (1971), 354 U.S. 476; Ginsberg v. New York (1968), 390 U.S. 629 [44 O.O.2d 339]; Roth v. United States (1957), 354 U.S. 476 [14 O.O.2d 331]; Jacobellis v. Ohio (1964), 378 U.S. 184 [28 O.O.2d 101]; Paris Adult Theatre I v. Slaton (1973), 413 U.S. 49; Rowan v. United States Post Office Dept. (1970), 397 U.S. 728; Prince v. Massachusetts (1944), 321 U.S. 158; Griswold v. Connecticut (1965), 381 U.S. 479; Boyd v. United States (1886), 116 U.S. 616; Payton v. New York (1980), 445 U.S. 573; Bowers v. Hardwick, supra; Carey v. Population Services Internatl. (1977), 431 U.S. 678; Zablocki v. Redhail (1978), 434 U.S. 374; Moore v. East Cleveland (1977), 431 U.S. 494; FCC v. Pacifica Found. (1978), 438 U.S. 726.
I write this concurring opinion solely for the purpose of informing the legal researcher not to waste his time wading through the reams of irrelevant legalese in the concurring opinions. These concurring opinions add nothing to the holding we have made in this case, as contained in the syllabus and the cogent analysis in the majority opinion. The only beneficiaries gaining from this opinion-writing orgy are the law book publishers, and the losers are the lawyers and law libraries which pay for this superfluous opinion-writing exercise. It is unfortunate that the practicing lawyer must provide valuable bookshelf space and pay so dearly for many useless official opinions as the result of so many drippy judicial pens.
A prudent exercise of judicial restraint in this case would have been a unanimous approval of the syllabus and the majority opinion, and the writing of no concurring opinions.
With reference to the syllabus I add an additional observation. When the majority opinion of Chief Justice Celebrezze was considered for approval at this court's official conference, on October 7, 1986 concurring Justices Douglas, Wright and Holmes refused to give their approval to the identical syllabus which still appears on this case. This left the majority opinion with only three votes and would have forced the majority opinion into a per curiam opinion without any credit or designation that Chief Justice Celebrezze authored the opinion. The desire to achieve such a result was the ulterior purpose of their vindictive abstention from the syllabus.
After the three foregoing concurring Justices refused to support the syllabus, I changed my vote from a dissent to a concurrence to preserve the syllabus by a majority of four Justices and most importantly to send a clear and unambiguous precedent to the Bench and Bar of Ohio.
After the syllabus was adopted on October 7, 1986 by the required majority of four Justices consisting of Chief Justice Celebrezze and Associate Justices Sweeney, Locher and C. Brown, the three dissident concurring judges, one at a time, first Justice Wright on October 20, 1986, then Justice Holmes on November 12, 1986 and finally Justice Douglas on November 13, 1986, without notifying the majority joined as the three who now "separately concur in the syllabus and judgment."
I add a word of caution. I am not certain that a majority of the United States Supreme Court would agree with our unanimous conclusion and judgment in this case, if it reviewed the issue herein on the merits, that the Ohio child pornography law is constitutional. We rely heavily on fn. 11 in the opinion of Justice Marshall in the Stanley case for our conclusions.33 We conclude that fn. 11 removes possession of child pornography from the holding in Stanley. A careful reading of fn. 11 reveals that it does not mention child pornography or even obscene material of any kind. In fact, the only reference to printed matter in fn. 11 concerns that which is of importance to our national security. If the United States Supreme Court were to apply the holding in Stanley, supra, the Ohio child pornography law would be unconstitutional. If it were to apply Ferber as an exception to Stanley, the Ohio child pornography law would be constitutional. The difficulty in applying Ferber is that it concerned a statute which dealt solely with production and promotion of any performance involving sexual conduct by children, and did not concern a statute dealing solely with private possession of child pornography as does the Ohio child pornography statute in this case. We can only speculate that the United States Supreme Court would extend the list of exceptions in fn. 11 of Stanley to include possession of child pornography and thereby make prohibition of its possession constitutional.
I concur with the majority in its conclusion that the trial court erred in granting defendant's motion for judgment notwithstanding the verdict. I do not agree, however, with the majority's determination that a new trial is warranted herein. I am convinced that the trial court abused its discretion in granting a new trial.
The majority concludes correctly in the first portion of its opinion that the trial court improperly weighed the evidence of causation in determining whether to grant defendant's motion for judgment notwithstanding the verdict. The majority next concludes that the trial court did not abuse its discretion in ordering a new trial on the basis that the verdict was against the manifest weight of the evidence. I vigorously disagree with this conclusion.
It is axiomatic that the verdict of a jury is accorded a strong presumption of regularity. In determining whether it is against the manifest weight of the evidence, every reasonable intendment should be made in its favor. See Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80, at fn. 3.
I am aware of this court's statement in Rohde v. Farmer (1970), 23 Ohio St.2d 82, 94 [52 O.O.2d 376], that where the trial court's decision granting a motion for a new trial involves questions of fact, the reviewing court should view the evidence favorably to the trial court's action rather than to the jury's verdict. I am not in agreement with this standard, because I believe it does not require the proper degree of scrutiny in such cases. In my view, the reviewing court should adopt a skeptical rather than an indulgent stance toward orders granting a new trial where the basis therefor was that the verdict is against the manifest weight of the evidence. The sanctity of the jury verdict warrants a standard of review of such orders that is more protective of the verdict.
I am more in accord with the views of Justice Herbert as expressed in his concurrence in Rohde, at 98, as follows:
"* * * In my opinion, this court should not foreclose the possibility that a trial judge, by his actions of record subsequent to the verdict, can so taint the exercise of his discretion that his view of the credibility of the witnesses and his granting of a new trial upon the weight of the evidence are not entitled to the near `carte blanche' acceptance by a reviewing court which appears to emerge from the majority opinion."
Even with the Rohde standard, however, I feel that the trial court abused its discretion in granting a new trial. There was sufficient evidence supporting the jury's finding that the city's negligence rather than plaintiff's intoxication was the proximate cause of plaintiff's injuries. An eyewitness to the accident testified that he actually saw plaintiff's automobile leave the road as it hit the bump. There was expert testimony concerning the role the bump played in the crash. The majority itself acknowledges that the evidence regarding plaintiff's level of intoxication "was not entirely conclusive." It further concedes that there was testimony that plaintiff did not appear to be intoxicated shortly before the accident. Given this state of the evidence, it is clear that the trial court abused its discretion in holding that the jury verdict was against the manifest weight of the evidence.
Accordingly, I would affirm that portion of the court of appeals' judgment reversing the trial court's entry of judgment notwithstanding the verdict, but I would reverse the affirmance of the trial court's order granting a new trial, as no new trial is warranted under these facts.
Reporter's Note: The majority opinion in this cause is found supra, State v. Meadows (1986), 28 Ohio St.3d 43.