[Cite as Ward v. Govt. Emps. Ins. Co., 2012-Ohio-2970.]

 IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO 

KRISTINE J. WARD : 

Plaintiff-Appellant : C.A. CASE NO. 24884 

v. : T.C. NO. 10CV5360 

GOVERNMENT EMPLOYEES : (Civil appeal from 

INSURANCE CO., et al. Common Pleas Court) 

Defendant-Appellee : 

 : 

 . . . . . . . . . . 

O P I N I O N

Rendered on the 29th day of June , 2012. 

 . . . . . . . . . . 

JEFFREY W. SNEAD, Atty. Reg. No. 0063416, 130 W. Second Street, Suite 1508, Dayton, 

Ohio 45402 

Attorney for Plaintiff-Appellant 

KEVIN C. CONNELL, Atty. Reg. No. 0063817, Fifth Third Center, 1 South Main Street, 

Suite 1800, Dayton, Ohio 45402 

Attorney for Defendant-Appellee Bilen Mandefro 

 . . . . . . . . . . 

DONOVAN, J. 

{¶ 1} This matter is before the Court on the Notice of Appeal of Kristine J. Ward, 
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filed November 4, 2011. On July 8, 2008, Ward was purportedly involved in a pedestrian 

accident with a vehicle driven by Bilen Mandefro. On August 2, 2011, following trial, a 

jury unanimously concluded that Mandefro failed to yield the right of way and was negligent 

in executing a turn. However, the jury found that her negligence was not a direct and 

proximate cause of Ward’s injuries, pain, suffering and damages. 

{¶ 2} At trial, Ward testified that on the date of the incident, she took the bus to 

the library in downtown Dayton, and that as she was returning to the bus stop, carrying a bag 

on her right shoulder along with several books in her left hand, she stepped, with the light, 

into the crosswalk on Third Street, headed southbound, and she then felt “a hit on my right 

side, upper arm. I don’t know what that is. I’m spun left, I feel a pain in my foot, I’m on 

the ground and I’m very worried about being in traffic.” Ward stated that before entering 

the crosswalk, she looked around to make sure it was safe to cross. Ward testified that she 

felt pain in her foot on impact. She denied that she was in a hurry, and she further denied 

that she tripped and fell into the car. Ward stated that at the time she was wearing sandals 

with straps that were not flip flops. When asked if she knew if her foot was run over by the 

car, she responded, “I don’t know.” Ward stated she was taken to the hospital by 

ambulance. She stated that the nail on her big toe was missing, and that her foot was 

fractured in three places. Ward stated that she had surgery on July 14, 2008, and that her 

surgeon inserted three pins to stabilize her foot. Ward testified that she continues to 

experience pain and swelling in her foot. 

{¶ 3} On cross-examination, Ward acknowledged that the history of physical 

injury contained in the emergency room records indicates as follows: “She states she was 
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crossing a street, in an unknown rate of speed, the car pushed her down as it sideswiped her 

large bag, which she had under her left arm,” and that “she states she was not run over” but 

“pushed down violently.” Ward also acknowledged that she stated in deposition that she 

did not know how she broke her foot as a result of the incident, and the following exchange 

occurred: 

Q. It all happened very quickly? 

A. It did. 

Q. And so, as a result you can’t tell us how that break happened? 

A. Yes. 

Q. And what moment it happened? 

A. That’s right. 

{¶ 4} On redirect, Ward denied breaking her foot before she was hit by the car, 

and she stated that the injury resulted from the impact. She reviewed several histories given 

by her, including the Dayton Fire Department EMS run report, which provides that her chief 

complaint is “pain in right foot which may have been run over by the tire of a car.” She 

reviewed an “ortho note” that provides that she “was clipped by a car while walking today. 

She hit her foot against the ground, is now in complaint of pain in the ED department.” 

Ward reviewed an “emergency department triage note” which provides that “Patient was 

walking across the street and was clipped from behind by a vehicle, knocking her to the 

ground.” She reviewed a “consultation with Dr. Prayson,” which provides that she 

“presented to the emergency department after being struck by a car.” 

{¶ 5} The jury also heard the testimony of Dr. Michael Prayson, perpetuated by 
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means of videotape. Prayson testified that he is an orthopedic surgeon, and that he treated 

Ward for injuries she sustained on July 8, 2008. Prayson opined to a reasonable degree of 

medical probability that Ward “did sustain injuries related to that pedestrian versus car 

collision.” Specifically, Prayson testified that Ward sustained “a number of fractures through 

the front and mid portion” of her right foot, and there was “an evulsion or removal of the 

toenail to her great toe.” Prayson stated that she also had a “Lisfranc” injury in the arch area 

of her foot. Prayson stated that he performed outpatient percutaneous surgery on Ward’s foot 

under a general anesthetic, inserting three pins to stabilize Ward’s fractures. Prayson 

reviewed Ward’s medical records and stated that they were generated as a result of the 

collision. Prayson indicated that the residual effects of the injury that Ward experienced, 

including pain and swelling, are permanent. 

{¶ 6} On cross-examination, Prayson stated that when forming an opinion 

regarding a patient’s diagnosis, he relies on the patient’s history, which he obtains directly 

from the patient and perhaps other outside sources such as paramedics, friends or relatives, 

as well as a physical examination and any medical testing that is completed. The following 

exchange occurred: 

Q. For example, if you’re going to diagnose simply that someone has 

a broken bone, the history about what happened is not as relevant to you. 

You can see it on the light box and see that the bone is broken and make that 

opinion. 

A. That is correct. 

Q. But when you come in and testify in court that a broken bone is 
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caused by something, the history component of that opinion is critical. 

A. Yes. 

Q. Because you weren’t there to see the event. 

A. Yes. 

* * * 

Q. And it indicates * * * in the record the history that was taken by 

the resident or the nurse or whoever was taking the history from her at the 

time at the emergency room, that she was not run over. She was just pushed 

down violently - - 

A. Yes. 

* * * 

Q. So other than the history that you now see in the emergency 

department, do you have any other background in terms of how this accident 

happened? 

A. No. I mean, we just - - basically what’s reported to us and what 

information we get from whatever source, * * * that’s what we use. 

So then there’s really not, from a medical standpoint, as you might 

imagine, there’s not a reason to challenge it. 

Q. Sure. 

A. Not a reason to investigate it further, the specifics of how it 

actually happened because it really doesn’t, like you said, have much bearing 

on - - once we identify the injuries and what we have to do with the injuries. 
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Q. Doesn’t bear on the treatment. 

A. Correct. 

Q. You just want to get her better and make sure that that fracture is 

aligned and she’s back to getting back to her life, correct? 

A. Correct. 

Q. And you give your, your patients the benefit of the doubt in that 

respect? 

A. Correct. 

Q. Do you know what kind of shoes she was wearing that day? 

A. I do not. 

{¶ 7} The defense presented the testimony of Britt Tompkins, who witnessed the 

accident from inside the library at a distance of approximately a hundred feet. He stated 

that Ward was “trying to hurry up” and “[m]aking a big rush” to cross the street, and that she 

“kind of like tripped over the shoe” and fell. According to Tompkins, “it just looked like 

that she kind of fell into the vehicle * * * .” Tompkins stated that he did not observe 

Ward’s feet, but he “seen her fall toward the car.” Tompkins stated that Ward “kind of like 

hit the front, like between the mirror and * * * like above the tire, that section there.” When 

he went outside to help pick up her books, Tompkins stated that Ward’s right sandal was on 

her foot but broken and “snapped backwards.” On cross-examination, Tompkins stated that 

he observed the events in his peripheral vision. 

{¶ 8} Finally, Mandefro testified that she was driving to work in a Nissan Sentra 

when the accident occurred, heading southbound on Saint Clair Street. She stated that she 
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stopped at the light at Third Street and waited to turn left. According to Mandefro, she 

observed Ward stepping into the crosswalk, and Mandefro judged that she had enough time 

to safely execute the turn. She stated that she moved forward and “was making that left 

turn, when all I see is just movement coming towards my car.” She stated that she observed 

the movement in her periphery, and that it “was fast. It was not gradual. It was almost like 

a propelling. * * * .” Mandefro testified that she observed “an elbow hitting * * * the side 

mirror of my car.” She testified that her vehicle was not damaged but that her side mirror 

had been moved out of position after the impact. Mandefro stated that after the accident, 

she observed that Ward’s elbow was “scratched up,” and her big toe was bleeding. 

{¶ 9} At the close of the defense’s case, Ward moved the court for a directed 

verdict on the issue of proximate cause, arguing that the “only proximate cause testimony 

from a qualified medical doctor came from Dr. Prayson and he said as a result of this motor 

vehicle collision, it caused these injuries,” and further that the defense failed to provide 

competent medical evidence of alternative causation. The defense responded that Prayson 

relied solely upon Ward’s version of events and that “the jury could conclude based on the 

bent sandal, based on the open toe, based on the propelling, based on her falling, all those 

things the jury could conclude that one can break their toe in any manner of ways, including 

and not limited to that.” The trial court overruled the motion. 

{¶ 10} After the jury’s verdict was announced, counsel for Ward moved for 

judgment notwithstanding the verdict on the issue of proximate cause. The trial court 

allowed the parties to brief the issue, and Ward filed a motion which the defense opposed. 

The court subsequently overruled Ward’s motion. 
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{¶ 11} Ward asserts two assignments of error. Her first assigned error is as 

follows: 

THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S 

MOTION FOR DIRECTED VERDICT ON THE ISSUE OF PROXIMATE 

CAUSE AT THE CLOSE OF APPELLEE’S CASE IN CHIEF. 

{¶ 12} Civ.R. 50(A)(4) provides: 

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. 

{¶ 13} As this Court recently noted: 

We review the grant or denial of directed verdicts de novo. In 

conducting the review, we construe the evidence most strongly in favor of the 

nonmoving party. A motion for directed verdict must be denied “where 

there is substantial evidence upon which reasonable minds could reach 

different conclusions on the essential elements of the claim.” Anousheh v. 

Planet Ford, Inc., 2d Dist. Montgomery Nos. 21960, 21967, 

2007-Ohio-4543, ¶ 43. Furthermore, “[i]n deciding a motion for directed 

verdict, neither the weight of the evidence nor the credibility of the witnesses 

is to be considered.” Cater v. City of Cleveland, 83 Ohio St.3d 24, 33, 
9

1998-Ohio-421, 697 N.E.2d 610. Kademian v. Marger, 2d Dist. 

Montgomery No. 24256, 2012-Ohio-962, ¶ 56. 

{¶ 14} “The ‘reasonable minds’ test calls upon a court to determine only whether 

there exists any evidence of substantial probative value in support of the claims of the 

nonmoving party. * * *. ” Lasley v. Nguyen, 172 Ohio App.3d 741, 2007-Ohio-4086, 876 

N.E.2d 1274, ¶ 16 (2d Dist.) “‘When a motion for directed verdict is entered, what is being 

tested is a question of law; that is, the legal sufficiency of the evidence to take the case to 

jury.’” Id., ¶ 17, quoting Ruta v. Breckenridge-Remy Co., 69 Ohio St.2d 66, 430 N.E.2d 

935 (1982). The motion “‘raises a question of law because it examines the materiality of 

the evidence, as opposed to the conclusions to be drawn from the evidence.’” Id.

{¶ 15} “‘It is well settled that the elements of an ordinary negligence suit are (1) 

the existence of a legal duty, (2) the defendant’s breach of that duty, and (3) injury that is the 

proximate cause of the defendant’s breach.’ * * * .” Carpenter v. Long, 196 Ohio App.3d 

376, 2011-Ohio-5414, 963 N.E.2d 857, ¶ 115 (2d Dist.). Regarding the element of proximate 

cause, this Court has previously noted: 

“Causation” refers to the cause and effect relationship between 

tortious conduct and a loss that must exist before liability for that loss may be 

imposed. * * * While difficult to define, “proximate cause” is generally 

established “where an original act is wrongful or negligent and, in a natural 

and continuous sequence, produces a result [that] would not have taken place 

without the act.” * * * It is also well settled that because the issue of 

proximate cause is not open to speculation, conjecture as to whether the 
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breach of duty caused the particular damage is not sufficient as a matter of 

law. * * * Further a plaintiff must establish proximate cause by a 

preponderance of the evidence. * * *. Innovative Technologies Corp. v. 

Advanced Management Technology, Inc., 2d Dist. Montgomery No. 23819, 

2011-Ohio-5544, ¶ 31. 

{¶ 16} Ward asserts that the defense “failed to adequately refute [her] prima facie 

evidence that the impact with Appellee’s vehicle was the proximate cause of her injuries.” 

She asserts that the nature of her injuries required “more than common knowledge to bridge 

the gap between injury and the subsequent physical disability caused by the collision” with 

Mandefro’s car. She asserts that the jury should not have been permitted to “entertain 

Appellee’s assertion that [her] injuries resulted from a trip or stub” in the absence of “the 

corroborating testimony of a medical expert,” and that neither the cross-examination of 

Prayson nor the proffered alternative theory of causation, namely that she injured her foot 

when she tripped, were sufficient to refute her claim. 

{¶ 17} Ward directs our attention to Darnell v. Eastman, 23 Ohio St.2d 13, 261 

N.E.2d 114 (1970), which held at syllabus: “Except as to questions of cause and effect which 

are so apparent as to be matters of common knowledge, the issue of causal connection 

between an injury and a specific subsequent physical disability involves a scientific inquiry 

and must be established by the opinion of medical witnesses competent to express such 

opinion.” 

{¶ 18} Regarding the nature of her injury, Ward further relies upon Bennett v. 

Goodremont’s, Inc., 6th Dist. Lucas No. L-10-1185, 2011-Ohio-1264, ¶ 16-17, which 
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distinguished between injuries which are matters of common knowledge, and injuries that 

are “internal and elusive in nature” and accordingly “outside the realm of common 

knowledge,” concluding that the latter require proof of causation by expert medical 

testimony. 

{¶ 19} The cases upon which Ward relies involve the burden of proof placed upon 

someone injured by the negligent act of another. This burden includes establishing that 

the negligent act of another is the proximate cause of the injury. “Defendants can avoid a 

directed verdict on this subject through cross-examination, presentation of contrary evidence 

that the negligence was not the probable cause of the injury, or presenting evidence of 

alternative causes of the injury.” Werth v. Davies, 120 Ohio App.3d 563, 570, 698 N.E.2d 

507 (1st. Dist. 1997), citing Stinson v. England, 69 Ohio St. 3d 451, 456-57, 633 N.E.2d 532 

(1994). 

{¶ 20} On cross-examination, the defense adduced testimony that Prayson’s 

opinion was based solely upon the history that Ward related. Prayson testified that he does 

not investigate the specifics of causation but gives his patients the benefit of the doubt in that 

respect, since his focus is on treatment. He described the history Ward related to him as 

“critical,” or essential, to his opinion on causation, since he did not observe the collision. In 

other words, Prayson assumed the truth of her history. Further, as the defense asserts, 

Prayson did not testify as to how Ward’s injuries actually occurred. Finally, Prayson 

stated that he was unaware of the type of shoes that Ward was wearing when she was 

injured. 

{¶ 21} While Ward denied that she tripped and fell into Mandefro’s car, the 
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testimonies of Tompkins and Mandefro both suggest that Ward in fact did so, and that 

Ward’s injury accordingly was not proximately caused by the tortious conduct of Mandefro. 

Tompkins, the independent eyewitness, stated that Ward was in a “big rush,” and that she 

“tripped over the shoe” and “fell into the vehicle.” He indicated that Ward’s sandal was 

snapped backwards, a condition that supports a conclusion that Ward tripped on her open toe 

sandal (a condition of which Prayson was unaware). Mandefro’s testimony that Ward hit 

the mirror of her car in a rapid, “propelling” motion is consistent with the testimony of 

Tompkins. 

{¶ 22} Construing the evidence most strongly in favor of the defense, we find that 

reasonable minds could differ with respect to the element of proximate cause as a matter of 

law. Accordingly, the trial court properly submitted the issue of causation to the jury. 

Ward’s first assigned error is overruled. 

{¶ 23} Ward’s second assignment of error is as follows: 

THE JURY’S VERDICT IS AGAINST THE MANIFEST WEIGHT 

OF THE EVIDENCE. 

{¶ 24} As this Court has previously noted, in a weight of the evidence challenge, 

an appellate court: 

“[R]eview[s] the entire record, weighs the evidence 

and all reasonable inferences, considers the 

credibility of witnesses and determines whether 

in resolving conflicts in the evidence, the jury 

clearly lost its way and created such a manifest 
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miscarriage of justice that the conviction must 

be reversed and a new trial ordered. The 

discretionary power to grant a new trial should 

be exercised only in the exceptional case in 

which the evidence weighs heavily against the 

conviction.” State v. Thompkins (1997), 78 

Ohio St.3d 380, 387, quoting State v. Martin 

(1983), 20 Ohio App.3d 172, 175. State v. 

Pierre, 2d Dist. Montgomery No. 18443, 

2001 WL 220239 (March 2, 2001). 

{¶ 25} As noted by the First District: 

The Ohio Supreme Court has recently clarified and explained the 

standard of review to be applied when assessing the manifest weight of the 

evidence in a civil case. Eastley v. Vollman, - - - Ohio St.3d - - -, 

2012-Ohio-2179, - - - N.E.2d - - -. In Eastley, the court held that the 

standard of review for the manifest weight of the evidence established in 

[Thompkins] is also applicable in civil cases. * * * . Consequently, when 

reviewing the weight of the evidence, our analysis must determine whether 

the trial court’s judgment was supported by the greater amount of credible 

evidence, and whether the plaintiff met its burden of persuasion, which is by 

a preponderance of the evidence. * * * . We are mindful that, in a bench 

trial, “the trial judge is best able to view the witnesses and observe their 
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demeanor, gestures and voice inflections, and use these observations in 

weighing the credibility of the proffered testimony.” Seasons Coal Co., Inc. 

v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984). It follows that,

“[i]f the evidence is susceptible of more than one construction, the reviewing 

court is bound to give it that interpretation which is consistent with the 

verdict and judgment, most favorable to sustaining the verdict and judgment.” 

Id. at fn. 3, quoting 5 Ohio Jurisprudence 3d, Appellate Reveiw, Section 60, 

at 191-192 (1978). SST Bearing Corporation. v. Twin City Fans Companies 

Limited, 1st Dist. Hamilton No. C-110611, 2012-Ohio-2490, ¶ 16. 

{¶ 26} Further, 

While Thompkins explicitly permits this court to consider credibility 

when confronted with an argument that the verdict is against the manifest 

weight of the evidence, such consideration is not unbounded. We have 

explained the limited role of an appellate court in reviewing issues of 

credibility in weight of the evidence challenges as follows: 

“Because the factfinder, be it the jury or * * * trial judge, has the 

opportunity to see and hear the witnesses, the cautious exercise of the 

discretionary power of a court of appeals to find that a judgment is against the 

manifest weight of the evidence requires that substantial deference be 

extended to the factfinder’s determinations of credibility. The decision 

whether, and to what extent, to credit the testimony of particular witnesses is 

within the peculiar competence of the factfinder, who has seen and heard the 
15

witness. Contrastingly, the decision as to which of several competing 

inferences, suggested by the evidence in the record, should be preferred, is a 

matter in which an appellate judge is at least equally qualified, by reason and 

experience, to venture an opinion. Therefore, although this distinction is not 

set forth in Thompkins, supra, we conclude that a decision by a factfinder as 

to which testimony to credit, and to what extent, is a decision that is entitled 

to greater deference than the decision as to how much logical force to assign 

an inference suggested by that evidence - in short, how persuasive it is. State 

v. Lawson (Aug. 22, 1997), Montgomery App. No. 16288, unreported.” 

State v. Pierre, supra. 

{¶ 27} According to Ward, the jury lost its way when it found that her injuries 

were not proximately caused by Mandefro’s negligence. Ward asserts again that the 

defense “failed to provide competent evidence that it was even possible that [her] injuries 

could be caused by a trip.” Nevertheless, it was not Mandefro’s burden to establish 

proximate cause; that burden rested with Ward. 

{¶ 28} As this Court has previously noted: 

“[T]he jury is not required to give any additional weight to the opinion 

of an expert, if any weight at all. Rather, an expert’s opinion is admissible, 

as is any other testimony, to aid the trier of fact in arriving at a correct 

determination of the issues being litigated. Expert testimony is permitted to 

supplement the decision-making process of the fact finder not to supplant it. 

(Citation omitted)”’ McBride v. Quebe, 2d Dist. Montgomery No. 21310, 
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2006-Ohio-5128, ¶ 5. 

{¶ 29} The record reflects that the jury was instructed that they “must determine 

whether the assumption on which the expert based his opinions are true. If any assumed 

fact was not established by the greater weight of the evidence, you will determine the effect 

of that failure on the value of the opinion of the expert,” and that they “may believe or 

disbelieve all or any part of the testimony of any witness,” and that “upon you alone rests the 

duty of deciding what weight should be given to the testimony of an expert.” 

{¶ 30} After thoroughly reviewing the entire record, weighing the evidence and all 

reasonable inferences, we cannot conclude that in resolving conflicts in the evidence, the 

jury lost its way and thereby created a manifest miscarriage of justice. The jury had the 

opportunity to see and hear all of the witnesses, and it was free to determine which testimony 

to credit. We defer to the jury’s assessment of credibility. On this record, the jury could 

have simply discredited Prayson’s testimony regarding causation because the assumed facts 

on which his opinions were based were not established by the greater weight of the evidence, 

given the testimony of Tompkins and Mandefro. There being no merit to Ward’s second 

assigned error, it is overruled. 

{¶ 31} The judgment of the trial court is affirmed. 

 . . . . . . . . . . 

HALL, J., concurs. 

GRADY, P.J., concurring: 

{¶ 32} The issue was whether the driver of the vehicle, Mandefro, was negligent, 
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and whether that negligence proximately resulted in the injuries to her foot and related losses 

of which Plaintiff Ward complained. The jury found that Mandefro was negligent, but that 

Ward’s injuries did not proximately result from that negligence. 

{¶ 33} Proximate cause is a question of fact. Though Ward offered expert 

opinion evidence that her injuries proximately resulted from Mandefro’s negligence, the jury 

was free to reject that evidence if it found a different proximate cause. Defendant was not 

required to likewise offer expert evidence in order to argue a different proximate cause, 

because the jury could weigh the evidence presented to find that Ward’s injuries resulted or 

may have resulted from another proximate cause, without the assistance of expert opinion 

evidence. 

 . . . . . . . . . . 

Copies mailed to: 

Jeffrey W. Snead 

Kevin C. Connell 

Hon. Timothy N. O’Connell