holding that the precise manner of injury need not be foreseeable; "It is sufficient that his act is likely to result in injury to someone. . . . [I]f an event causing injury appears to have been closely related to the danger created by the original conduct, it is regarded as within the scope of the risk, even though, strictly speaking, the particular injury would not have been expected by a reasonable man in the actor's place"Summary of this case from Myers v. Coshocton Vill. Inn & Suites
Decided July 22, 1981.
Negligence — Directed verdict — Erroneously granted, when — Negligence and proximate cause issues for jury, when — Injuries following alleged negligent shooting.
APPEAL from the Court of Appeals for Cuyahoga County.
Carter and Bessie Strother initiated an action against Floyd Binder, a.k.a. Schumutu Yardrough; Noah Hutchinson, d.b.a. Noah's Sunoco; and Sunmark Industries for injuries arising out of an automobile collision which followed a robbery and shooting. The complaint alleged that Floyd Binder, while working at Noah's Sunoco, shot at the robbers who were fleeing the station in a motor vehicle, causing the driver to lose control of the motor vehicle and to crash head-on into the automobile driven by Carter Strother. The complaint further alleged Binder was employed by and acting within the scope of employment of Noah Hutchinson, d.b.a. Noah's Sunoco, and Sunmark Industries, a division of Sun Oil Company. Sunmark Industries was subsequently dismissed as a party defendant.
The cause came to trial on October 2, 1979. The following testimony was offered during presentation of the plaintiffs' case.
Defendant Floyd Binder testified that he was the night manager at Noah's Sunoco, 7318 Superior Avenue, Cleveland, Ohio, on the evening of December 30, 1977. Three men in an Oldsmobile drove into the station and asked for a pack of cigarettes and then for $3 worth of gasoline. One of the occupants handed Binder $5. At that point, the man in the back seat pulled out what Binder thought was a sawed-off shotgun and ordered Binder to put the station's money in the car. As the car began slowly to leave the gas island in front of the station and head east, Binder stood there just as he had been told. Before the Oldsmobile had passed the telephone booth located at the corner of the station and the driveway apron, Binder pulled out a .45-caliber revolver he had in his coveralls and fired three shots. At that point, the Oldsmobile was positioned at an angle in relation to Binder. One shot penetrated the left rear window and struck the driver in the back. The automobile then accelerated and Binder heard a crash. He drove to the scene of the crash about a block and one-half away and saw that the Oldsmobile had collided with a Cadillac coming from the opposite direction. Binder's employer knew he brought the revolver to work.
Noah Hutchinson testified that he hired Binder during the summer of 1977. Binder was night manager of the station when Hutchinson was not there. Binder was entrusted with the management and operation of the business and responsible for the safekeeping of the station's property. Hutchinson knew that Binder had a gun. Hutchinson owned a 12-gauge shotgun which was kept in the back room of the station, and employees had access to that weapon. Approximately $400 was stolen on December 30, 1977, according to Hutchinson.
Carter Strother testified that he was traveling west on Superior Avenue when an automobile heading from the opposite direction crossed the road and struck his Cadillac. Strother guessed the other vehicle was speeding at 80 or 90 miles per hour; it was traveling so fast that Strother had no time to pull over to the curb. According to Strother, the collision took place at around East 71st ( sic) Street and Superior Avenue, about 100 yards east of Noah's Sunoco station. Strother described the extent of his injuries, medical expenses and loss of income. Bessie Strother, Carter's wife, testified as to the limitations on her husband's activities since the collision. Dr. Melvin Sobel testified on videotape.
By stipulation of the parties, various documents were admitted in evidence, including three police reports. A police traffic crash report indicated that two occupants of the Oldsmobile were apprehended leaving the scene of the collision; the driver, subsequently identified as Dennis Williams, was pinned inside the vehicle and was found dead at the scene. Another police report stated that Williams was found pinned between the front seat and dashboard. All three police reports recited that the collision occurred near the intersection of Superior Avenue and East 77th Street. An autopsy report prepared by the Cuyahoga County Coroner's Office listed the cause of Williams' death as a gunshot wound of the trunk with perforations of the spleen, stomach, heart and left hemothorax, the bullet entering through the left back and exiting through the left chest.
At the conclusion of plaintiffs' case, the defendants moved for a directed verdict. This motion was granted on October 4, 1979. The trial court found that the plaintiffs had failed to establish a prima facie case of negligence in that a duty, the breach of that duty and proximate cause were not established. The Court of Appeals affirmed, holding that the injury to Carter Strother was not a probable consequence of Binder's firing three shots at the occupants of the fleeing vehicle.
The cause is now before this court upon the allowance of a motion to certify the record.
Mr. Jack W. Abel, for appellants.
Messrs. Payne Payne and Mr. William S. Derkin, for appellees.
The primary issue presented in this case is whether the trial court properly directed a verdict in favor of defendants at the close of plaintiffs' case in chief.
When considering a motion for a directed verdict, a trial court must construe the evidence most strongly in favor of the party against whom the motion is directed. Civ. R. 50(A)(4) provides that:
"When a motion for a directed verdict has been properly made, and the trial court, after construing the evidence most strongly in favor of the party against whom the motion is directed, finds that upon any determinative issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such party, the court shall sustain the motion and direct a verdict for the moving party as to that issue."
The law in Ohio regarding directed verdicts is well formulated. In addition to Civ. R. 50(A), it is well established that the court must neither consider the weight of the evidence nor the credibility of the witnesses in disposing of a directed verdict motion. Durham v. Warner Elevator Mfg. Co. (1956), 166 Ohio St. 31. Thus, "if there is substantial competent evidence to support the party against whom the motion is made, upon which evidence reasonable minds might reach different conclusions, the motion must be denied. Kellerman v. J.S. Durig Co. (1964), 176 Ohio St. 320***." Hawkins v. Ivy (1977), 50 Ohio St.2d 114, 115.
To entitle the plaintiff in a personal injury suit to have his case submitted to a jury, it is necessary that the plaintiff produce some evidence upon every element essential to establish liability, or produce evidence of a fact upon which a reasonable inference may be predicated to support such element. Penter v. Schwartz (1949), 85 Ohio App. 477, 481-482. Thus, in order to establish actionable negligence, one seeking recovery must show the existence of a duty, the breach of the duty, and injury resulting proximately therefrom. Feldman v. Howard (1967), 10 Ohio St.2d 189, 193. As such, this court must first consider whether the defendants were negligent and breached a duty of care owed to the plaintiffs when defendant Floyd Binder shot at the robbers who were fleeing from the gas station owned by defendant Noah Hutchinson.
"The amount of care required of a person to establish whether he has discharged his duty to another is variously referred to as the `amount of caution,' the `degree of care' or the `standard of conduct' which an ordinarily careful and prudent person would exercise or observe under the same or similar circumstances." Di Gildo v. Caponi (1969), 18 Ohio St.2d 125, 127. See, also, Thompson v. Ohio Fuel Gas Co. (1967), 9 Ohio St.2d 116; Eisenhuth v. Moneyhon (1954), 161 Ohio St. 367; Soltz v. Colony Recreation Center (1949), 151 Ohio St. 503; Johnson v. Wagner Provision Co. (1943), 141 Ohio St. 584; Davison v. Flowers (1930), 123 Ohio St. 89; Prosser on Torts (3 Ed.) 146, Section 30; 2 Restatement of Torts 2d 4, Section 281.
Appellants argue that defendant Binder failed to discharge his duty to another in that his conduct was excessive and without due regard for the safety of others. They alleged that Binder's conduct was negligent per se and in all other ways negligent. The appellees, on the other hand, question whether Binder was justified in shooting at the fleeing robbers.
In essence, both parties raise the issue of whether Binder was privileged to fire gunshots at the robbers in defense of person or property. The general rule, as stated in 1 Restatement of Torts 2d 128, Section 75, is that "[a]n act which is privileged for the purpose of protecting the actor from a harmful or offensive contact or other invasion of his interests of personality subjects the actor to liability to a third person for any harm unintentionally done to him only if the actor realizes or should realize that his act creates an unreasonable risk of causing such harm."
If Binder was not privileged to fire shots at the robbers, then his actions would be judged by whether a reasonably prudent and careful person, under the same or similar circumstances, should have anticipated that injury to the plaintiff or to those in a like situation would probably result. Gedeon v. East Ohio Gas Co. (1934), 128 Ohio St. 335.
Thus, in order for Binder's act of shooting at the fleeing robbers to have been privileged, as a matter of law, it would have to be clear that he was acting in defense of his person or property. Evidence was presented to refute this position. For example, evidence was presented that at the time of the shooting, the robbers were in the process of fleeing the station. There is no evidence that the robbers were firing shots at Binder as they were leaving or that Binder had any reason to believe the robbers intended to inflict any harm on him.
Sufficient evidence was thus presented to raise an issue as to the standard of care required of Binder. In Di Egidio v. Kealy (Ohio App. 1959), 162 N.E.2d 171, 173, it was held that "[i]ssues in a negligence case should be withdrawn from a jury in only exceptional cases and never when the facts concerning the conduct of the parties as well as the standard of care that should be exercised are to be determined." Since the standard of care needed to be determined in this case, a directed verdict should not have been granted on this basis.
This court must next determine, based on the evidence presented, whether reasonable minds could differ on the questions of whether plaintiff's injuries were proximately caused by defendant's negligent act of shooting at the fleeing vehicle and whether said injuries were a foreseeable consequence of defendant's acts.
It is well settled that in order for a person to be entitled to recover in damages for a claimed negligent injury, the act complained of must be the direct and proximate cause of the injury. See, e.g., Ross v. Nutt (1964), 177 Ohio St. 113, 114. Miller v. Baltimore Ohio Southwestern Rd. Co. (1908), 78 Ohio St. 309. In Clinger v. Duncan (1957), 166 Ohio St. 217, 223, this court addressed this issue and stated that "[t]he term `proximate cause,' is often difficult of exact definition as applied to the facts of a particular case. However, it is generally true that, where an original act is wrongful or negligent and in a natural and continuous sequence produces a result which would not have taken place without the act, proximate cause is established, and the fact that some other act unites with the original act to cause injury does not relieve the initial offender from liability." One is thus liable for the natural and probable consequences of his negligent acts. Foss-Schneider Brewing Co. v. Ulland (1918), 97 Ohio St. 210.
"To find that an injury was the natural and probable consequence of an act, it must appear that the injury complained of could have been foreseen or reasonably anticipated from the alleged negligent act. As is said in Miller v. Baltimore Ohio Southwestern Rd. Co., 78 Ohio St. 309, at page 325, `[t]he rule is elementary, that a defendant in an action for negligence can be held to respond in damages only for the immediate and proximate result of the negligent act complained of, and in determining what is direct or proximate cause, the rule requires that the injury sustained shall be the natural and probable consequence of the negligence alleged; that is, such consequence as under the surrounding circumstances of the particular case might, and should have been foreseen or anticipated by the wrongdoer as likely to follow his negligent act." See Ross v. Nutt, supra, at page 114. Thus, a reasonable foreseeability of injury is considered an element of proximate cause.
The law of foreseeability, as announced in Neff Lumber Co. v. First National Bank (1930), 122 Ohio St. 302, 309, and followed in Mudrich v. Standard Oil Co. (1950), 153 Ohio St. 31, 39, is as follows: "***It is not necessary that the defendant should have anticipated the particular injury. It is sufficient that his act is likely to result in injury to someone." It has also been held that "[i]f an event causing injury appears to have been closely related to the danger created by the original conduct, it is regarded as within the scope of the risk, even though, strictly speaking, the particular injury would not have been expected by a reasonable man in the actor's place. 2 Restatement of the Law, Torts, 2d, 7, Elements of a Cause of Action for Negligence, Section 281, Comment g." Di Gildo v. Caponi, supra, at page 130.
Applying the above stated principles to the facts of this case, this court finds that reasonable minds could have found that Binder's shooting into the fleeing car was a proximate cause of appellant's injuries. Evidence was presented that Binder fired shots at the robbers as the vehicle was about to enter a major thoroughfare; that one or more of the bullets fired by Binder struck and mortally injured the driver of the robbery vehicle; and that the driver of the robbery vehicle lost control of the vehicle and collided head on into a vehicle driven by appellant.
Reasonable minds could have found it foreseeable that a .45-caliber bullet would cause death or severe injury should it strike someone. Reasonable minds also could have found it foreseeable that if the bullet struck its target, i.e., the individual operating a motor vehicle about to enter a major thoroughfare, the individual would not be able to retain control of the vehicle and that a crash or collision could occur.
"Ordinarily, the existence of both negligence and proximate cause are, in a jury trial, questions of fact for the determination of the jury under proper instructions from the court; ***." Clinger v. Duncan, supra, at page 223. Construing the evidence most strongly in favor of the plaintiffs-appellants, this court finds that reasonable minds might well have arrived at different conclusions upon the issues of negligence and proximate cause, and therefore they were questions of fact for the jury.
For the foregoing reasons, the judgment of the Court of Appeals is reversed and the cause remanded to the trial court for further proceedings.
Judgment reversed and cause remanded.
CELEBREZZE, C.J., W. BROWN, P. BROWN and C. BROWN, JJ., concur.
SWEENEY, LOCHER and HOLMES, JJ., dissent.
I dissent from the majority herein for a number of rather basic reasons. First, I believe that Floyd Binder, the gasoline station employee, was privileged to fire gunshots at the fleeing robbers who were carrying away the money of his employer. He, as in the same instance of the employer he represented, had a real and basic interest in that which transpired upon the station premises. Here, such interests had been seriously invaded, and the right and privilege to guard and protect such interests must be legally recognized with certain limitations. The limitation is that such person may not act beyond a point where his act creates an unreasonable risk of causing harm to others, 1 Restatement of Torts (2d), Section 75.
Where such a privilege exists, as here, the actor is not held to the more restrictive standard generally applicable in the consideration of the existence of negligence in the acts of one who is not favored with the limited privilege to act under the circumstances.
Second, regardless of whether Binder would, under the facts presented, be privileged to fire shots at the fleeing robbers, the issues of foreseeability and proximate cause must be satisfactorily met. I am in disagreement with the majority here that it could be reasonably foreseeable by Binder that his firing shots at the fleeing robbers would occasion a head-on collision with another automobile one block down the street.
In reviewing the facts before the trial court upon the Civ. R. 50(A)(4) motion, the Court of Appeals stated as follows in its decision:
"For purposes of determining the merits of a motion for a directed verdict, the facts are clear and simple. However, the facts raise a question of first impression. We find that injury to Strother was not a probable consequence of Binder's firing three shots at the occupants of the fleeing vehicle. The vehicle was still on the gas station lot. It was after 11:00 p.m. There was no evidence that there were any persons or vehicles in the vicinity of the gateway car when Binder fired. The risk of physical injury created by Binder's actions were to the three robbers under the facts presented; Mr. Strother was outside the zone of risk as he was several blocks away from Noah's Sunoco when the shooting occurred. It was not a probable consequence of Binder's firing the shots on the station premises that Strother would be injured in a collision with an intended victim after that injured victim had left the scene of the shooting and was several hundred feet away."
I am in complete agreement with this conclusion of the Court of Appeals, and would accordingly affirm the judgment of that court.
SWEENEY and LOCHER, JJ., concur in the foregoing dissenting opinion.