Proof of causation is a fundamental element in negligence cases. That missing element of proof resulted in the reversal of a jury verdict in favor of a grocery store customer who was injured when struck by another customer who was operating a motorized grocery store shopping cart, by a unanimous decision of the Ohio Supreme Court rendered last month, in Rieger v. Giant Eagle, Inc.
Circumstances of the Injuries
The Plaintiff was knocked to the floor at a Giant Eagle supermarket in Brook Park when her shopping cart was hit by a motorized shopping cart furnished by Giant Eagle to another customer. Plaintiff sued both the operator of the motorized cart and Giant Eagle, but settled with the operator before trial.
Plaintiff’s evidence showed Giant Eagle did not provide operational instructions to customers using the store’s motorized shopping carts and during the eight years prior to this accident there had been 117 incidents involving these motorized carts at various Giant Eagle stores. There were also 62 incidents after this accident that were admitted into evidence. The husband of the motorized shopping cart operator testified his wife had dementia and had been operating these carts for more than a year without training and without prior incidents.
With that evidence Plaintiff argued Giant Eagle was negligent because it failed to train this customer how to operate the motorized cart and negligently entrusted the cart to an untrained and incompetent customer.
Giant Eagle timely moved for a directed verdict arguing there was no evidence of causation, because there was no evidence training would have prevented the accident or that the dementia was discernable, but its motion was denied by the trial court.
A jury found Giant Eagle was negligent and that negligence was a proximate cause of the injuries suffered by the plaintiff, resulting in an award of $112,500 in compensatory damages and $1,198,000 in punitive damages.
Giant Eagle appealed to the Eighth District Court of Appeals, challenging both the negligence and punitive damage verdicts. The compensatory damage award was sustained because the court concluded the prior incidents were sufficient to establish a duty owed by Giant Eagle to their customers and that the introduction of the 62 incidents post-accident was harmless error. The harmless error finding was predicated on the fact that Giant Eagle did not object to the admission of their corporate representative’s testimony concerning all those incidents and the reference by their lawyer to the 179 incidents in closing argument (in contrast to the closing by plaintiff which referenced only the 117 incidents prior to this accident).
As to the negligent entrustment claim, that court found the fact that the operator was untrained and suffering from dementia was sufficient to support the jury verdict on that issue.
On the issue of punitive damages, the trial court found that Ohio statute, R.C. 2315.21(D) which precludes trial courts from entering a punitive judgment in excess of twice the compensatory damages was unconstitutional as applied here. Prior Ohio Supreme Court decisions allow such challenges on a case-by-case basis, however, on the facts here the appellate court reversed that finding and limited the punitive damages to twice the compensatory award.
In doing so, they found the plaintiff “did not make any reference to what Giant Eagle could have done differently to prevent future incidents.” Rieger v Giant Eagle, Inc., 2018-Ohio-1837, ¶38, therefore, their proof did not show that Giant Eagle’s conduct was so reprehensible under the clear and convincing standard of proof as to make the application of the punitive damage cap here unconstitutional.
The Ohio Supreme Court initially accepted this case in the exercise of its discretionary jurisdiction, only on a proposition of law which argued that the punitive damage decision below created a new standard for malice that made the mere possibility of harm sufficient to sustain an award, contrary to the prior standard requiring the great probability of causing substantial harm. Giant Eagle urged reconsideration of the denial of its other proposition of law, which argued the lower courts had created new duties on store owners offering motorized carts for customer use and that issue was also accepted for review.
Causation is a question of fact for the jury in Ohio. However, there must be evidence on that issue before it can be submitted to the jury. Ohio uses a “but for” test to determine causation. The Supreme Court found there was no evidence that had Giant Eagle offered instructions to the operator it would have prevented the accident. Further, there was no evidence that the operator’s dementia was discernable or that the condition made her incompetent to operate the motorized cart or that it played a role in causing the accident. Also, without causation, there was no basis for the punitive damage award.
Causation is an element of all tort cases and in the absence of evidence that the defendant’s conduct was the cause of the accident the case cannot be submitted to a jury. When arguable prejudicial evidence is presented, proper objections to its use a trial must be made, and care must be taken not to waive the issue by inartful reference to that evidence in closing argument.