[Cite as One Step Further Physical Therapy, Inc. v. CTW Dev. Corp., 2012-Ohio-6137.]

 STATE OF OHIO, MAHONING COUNTY 

 IN THE COURT OF APPEALS 

 SEVENTH DISTRICT 

ONE STEP FURTHER PHYSICAL ) 

THERAPY, INC., ) CASE NO. 11 MA 66 

 ) 

 PLAINTIFF-APPELLANT, ) 

 ) 

 - VS - ) OPINION 

 ) 

CTW DEVELOPMENT CORP., ) 

 ) 

 DEFENDANT-APPELLEE. ) 

CHARACTER OF PROCEEDINGS: Civil Appeal from Common Pleas 

Court, Case No. 01 CV 1857. 

JUDGMENT: Affirmed. 

APPEARANCES: 

For Plaintiff-Appellant: Attorney Robert Vizmeg 

Anzellotti, Sperling, Pazol & Small 

21 North Wickliffe Circle 

Youngstown, OH 44515 

For Defendant-Appellee: Attorney William Jack Meola 

Davis & Young 

972 Youngstown-Kingsville Rd. 

Vienna, OH 44473 

JUDGES: 

Hon. Mary DeGenaro 

Hon. Gene Donofrio 

Hon. Joseph J. Vukovich 

Dated: December 17, 2012 
[Cite as One Step Further Physical Therapy, Inc. v. CTW Dev. Corp., 2012-Ohio-6137.]

DeGenaro, J. 

{¶1} Plaintiff-Appellant, One Step Further Physical Therapy, Inc., appeals the 

decision of the Mahoning County Court of Common Pleas denying its motion for judgment 

notwithstanding the verdict following a jury verdict in favor of Defendant-Appellee, CTW 

Development Corp, in a negligence action. On appeal, One Step argues that the trial 

court erred in denying its motion for JNOV because there was no competent, credible 

evidence presented to allow the jury to find that CTW's negligence was not the proximate 

cause of One Step's damages. 

{¶2} Upon review, One Step's argument is meritless. The record contains 

substantial evidence upon which reasonable minds could reach different conclusions on 

the issue of proximate cause; thus, the trial court did not err in denying One Step's motion 

for JNOV. Accordingly, the judgment of the trial court is affirmed. 

Facts and Procedural History 

{¶3} This case arose from a fire in January 2001 that destroyed an office building 

at 3660 Stutz Drive, Canfield Ohio. CTW constructed the Stutz Drive building in 1996 

and at the time of the fire in 2001, CTW was leasing a portion of the building to One Step. 

Other parties and claims were initially involved in this litigation; however, at issue in this 

appeal is a negligence claim One Step brought against CTW. One Step claimed that 

CTW negligently constructed the Stutz Drive building and failed to adhere to applicable 

building codes. One Step alleged that as a direct and proximate result of this negligence, 

the January 2001 fire was unable to be extinguished in order to prevent damage to One 

Step's business and property. 

{¶4} The case proceeded to a jury trial before the magistrate on December 13, 

2010. During trial, the parties presented evidence regarding the construction of the Stutz 

Drive building and provisions in the Ohio Basic Building Code for fire-resistance 

construction methods. One Step presented testimony to show that the Stutz Drive 

building exceeded two stories and 30 feet in height; thus, the building code required that it 

be constructed as a Type 5A protected building. The building code required that a Type 

5A protected building contain a one-hour fire-resistance rating for the floor/ceiling 

assembly. The Stutz Drive building was built in 1996 as a Type 5B unprotected building 
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without the one-hour fire-resistance floor/ceiling assembly. 

{¶5} Chief Robert Tieche of the Cardinal Joint Fire District testified first for One 

Step. Based on the response log created by the dispatch center, the Chief testified that 

on January 11, 2001, the dispatch center received the fire alarm for the Stutz Drive 

building at 3:12 a.m., and he arrived on the scene at 3:19 a.m. Chief Tieche explained 

that when he arrived on the scene, there was heavy fire coming out of two windows on 

the lower level. Firefighters entered the building at 3:28 a.m. to start an offensive attack 

on the fire, wherein the firefighters enter a building to locate the source of the fire so that 

they can suppress the fire faster. Chief Tieche explained that at that point, the fire was 

contained to an attorneys' office on the lower level of the building where the fire started. 

He estimated that between 8 to 12 minutes after the firefighters entered the building, the 

ceiling collapsed in the attorneys' office. At that point, all the firefighters evacuated the 

building and they began fighting the fire defensively by spraying water into the building 

from the outside. 

{¶6} Chief Tieche testified that because this was an arson fire, it "had a big head 

start." He explained that regardless of whether a fire is arson, if the firefighters can enter 

a building to fight the fire offensively, they will. When a fire is contained within a 

compartment before it extends into other compartments or into the structure of the 

building, more likely than not, the building can be saved by fighting the fire offensively. 

However, he testified that once the ceiling collapsed in the Stutz Drive building, it was 

more likely than not that there would be extensive damage to the building. When asked 

to assume that he had an extra 30 minutes to fight the fire, the Chief stated: "If we had an 

extra 30 minutes in that compartment before the compartment failed, it would probably 

have allowed us to suppress the majority of the fire." He confirmed that this would have 

allowed the firefighters to "save the building." 

{¶7} On cross, Chief Tieche confirmed that the attorneys’ office on the lower 

level where the fire originated contained a large amount of paper, which is an accelerant 

for fire, and the fire inspector determined that the fire was started with gasoline in at least 

two spots. He agreed that under these circumstances, a fire would burn "pretty quickly" 
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and that it would be more intense than if the carpet was lit on fire without an accelerant. 

Finally, he confirmed that during his deposition, he said that the fire "burned like hell." 

{¶8} Next, Gordon Zeiler, general manager of Vector Security, testified. Vector 

Security had installed a fire alarm system in the attorneys' office at Stutz Drive. This 

alarm system used both a motion and heat detector and both detectors needed to be 

activated before the alarm would engage. The heat detectors would activate either if the 

air in the room reached a certain temperature or if the temperature of the room increased 

a certain amount within seconds. The attorneys' office also contained smoke heat 

detectors which would engage due to the smoke concentration in the room. 

{¶9} Based on a list of the times that the alarms activated, Zeiler testified that the 

fire alarm first activated at 3:09 a.m. and the operator dispatched the fire department at 

3:10 a.m. He did not know the order in which the detectors activated, only that the fire 

alarm engaged. However, the heat detector closest to the windows where the firefighters 

saw the fire was a heat detector that activated by 135oF temperatures or the rate of rise of 

the temperature. This detector was located approximately 12 feet from the windows. He 

also testified that the alarm system divided the attorneys' office into eight zones and by 

3:13 a.m., detectors had activated in five of those zones, likely due to fire. On cross, 

Zeiler confirmed that the list of the alarms does not indicate when the fire started. 

{¶10} Next, Robert Sharp testified that he is an Assistant Chief with the 

investigations unit of the State Fire Marshal's Office and he had previous experience 

working as an arson investigator for the Youngstown Fire Department. Sharp 

investigated the fire at the Stutz Drive building and determined that it was started by 

gasoline. He explained that gasoline is an accelerant for fire. When gasoline is poured, it 

creates a vapor that ignites instantly when a flame is applied. The size of the room, the 

amount of ignitable liquid used, and the time it takes to pour the liquid affects the amount 

of vapor produced. The more vapor produced, the larger the "plume" of fire that will be 

created when the vapor ignites. Sharp explained that when gasoline is poured on carpet, 

the carpet itself will burn and create heat, as well as release gases which will rise into the 

ceiling. The combustibles nearby, the "fuel load," will also ignite and burn. Sharp agreed 
- 4 - 

that paper is a good fuel load and is easier to light than material with a greater density. 

However, he explained that it depends on how long the heat source stays on the 

combustible before it burns. 

{¶11} Sharp agreed that the ignited vapor cloud would be like a fireball. The 

fireball would be a minimum of 800oF, but could be as hot as 1,700oF, depending on the 

amount of vapor created by the amount of gasoline used. He further explained that a 

fireball that hot would heat the ambient air in the room immediately. Counsel then asked 

if Sharp could give an opinion as to whether the fireball would heat the air 10 or 15 feet 

away from it to 135oF. Sharp estimated that if the room was already 60o or 70oF and 

even if only a quarter of a gallon of gasoline was used, upon ignition, the temperature in 

the room could rise to 135o F. 

{¶12} On cross, Sharp stated that he could not estimate the size of the fireball, but 

based on his experience, he thought it was substantial. Regarding the spread of the fire, 

Sharp explained that the fireball would return to the carpet and burn, but he did not know 

what was around the fireball that would ignite. Counsel noted Chief Tieche's testimony 

that the room was full of paper, and Sharp agreed that the paper would make a difference 

in the fire. He also testified that he could not estimate the time it would take for the 

temperature to rise in the room because he did not know what was actually burning in the 

room. 

{¶13} Next, Jeffrey Grusenmeyer testified that he is a licensed architect in Ohio, 

and he is also certified as an Ohio master plans examiner, which involves reviewing plans 

submitted to the State for compliance with the building code. He explained that he has 

seen videos showing testing on one-hour floor/ceiling assemblies. In the test, 

thermocouples and cotton are attached to the top of the assembly and a series of gasfired jets are applied to the underside. If the thermocouples exceed a given temperature 

or if the cotton spontaneously combusts before an hour has elapsed, then the system 

fails. Based on his experience with these assemblies in actual fires, Grusenmeyer stated 

that the one-hour rating is a minimum and the assemblies will generally exceed the onehour requirement. He explained that the purpose of the fire-resistance requirements in 
- 5 - 

the building code is to protect lives by allowing people to exit the building and firefighters 

to fight the fire. On cross, Grusenmeyer testified that he did not know the exact 

temperature of the gas flame used during the tests, but he believed that it would exceed 

1,000oF. He agreed that it was likely that the assembly would burn slower if the flames 

were 800oF than if the flames were 1700oF. 

{¶14} One Step then rested subject to the admission of its exhibits. CTW moved 

for a directed verdict, which the magistrate denied. 

{¶15} CTW then called Stephen Berry as its first witness. He is a licensed 

architect in Ohio, and he was the Chief Building Official for Mahoning County from 1993 

to 1998. He also designed the Stutz Drive building for CTW. On cross, Berry agreed that 

the purpose of the fire-resistance requirements in the building code is to keep people and 

property safe from destruction by fire; however, he stated that this did not include fires 

started by gasoline. He further explained: "In this case I would say it made no difference 

whether there was a fire rating on that truss or not. I would say this is an arson fire 

started by gasoline. It would make no difference." However, Berry admitted that he did 

not know the amount of gasoline used to start the fire. 

{¶16} Next, Richard Kraly, a licensed architect in Ohio, testified for CTW. He did 

not believe that the one-hour fire-resistance provisions in the building code take arson 

into account. He explained that he has investigated approximately six or less arson fires. 

He agreed that an arson fire burns hotter than a regular fire because of the accelerant. 

However, he later admitted that this opinion was based on what he had heard from other 

fire investigators, not his personal experience. 

{¶17} On cross, Kraly testified that the purpose of the fire-resistance ratings in the 

building code is to allow people to exit a building safely during a fire. He agreed that in 

general, regardless of how a fire starts, construction that is protected will last longer than 

unprotected. When asked if the fire-resistance provisions retard the rate of the spread of 

the fire regardless of whether it begins accidentally or by arson, Kraly replied: "It should, 

but I think arson takes that out of the equation." He explained that the rate of the spread 

depends on what accelerant is used. 
- 6 - 

{¶18} CTW rested subject to admission of its exhibits. One Step moved for a 

directed verdict with regard to liability, which the magistrate overruled. CTW then 

renewed its motion for directed verdict, which the magistrate also overruled. 

{¶19} Following deliberations, the jury returned five interrogatories. In 

interrogatories one, two and three, the jury unanimously found that One Step had proven 

more likely than not that: 1) the 1996 building code required the Stutz Drive building to be 

Type 5A protected; 2) the Stutz Drive building failed to comply with the building code; and 

3) CTW was negligent in the construction of the Stutz Drive building. 

{¶20} Interrogatory four asked if One Step had proven more likely than not that it 

incurred damages as a proximate result of CTW's negligence in constructing the Stutz 

Drive building. The jury unanimously answered "no" to this interrogatory. The jury did not 

answer interrogatory five based on its answer to the fourth interrogatory. The jury also 

returned a general verdict finding in favor of CTW and against One Step. 

{¶21} On December 22, 2010, the magistrate issued a decision ordering that 

judgment be entered in favor of CTW and against One Step. 

{¶22} On January 4, 2011, One Step filed objections to the magistrate's decision, 

and a motion for JNOV or alternatively for a new trial on the issue of damages. One Step 

argued that there was competent, credible evidence presented at trial to allow the jury to 

find that CTW's negligence was the proximate cause of One Step's damages, and it lost 

its way by failing to so find. One Step alleged that it presented evidence during trial that 

but for CTW's failure to comply with the building code, One Step would not have lost its 

business to fire. One Step claimed that the only evidence presented at trial on proximate 

cause was Chief Tieche's testimony that the firefighters would have been able to 

suppress the fire if they had an extra 30 minutes to fight it. CTW filed a memorandum in 

opposition on January 21, 2011. 

{¶23} On March 31, 2011, the magistrate issued a decision overruling One Step's 

motion for JNOV and for a new trial. The magistrate found that Chief Tieche's testimony 

on saving the building with an extra 30 minutes to fight the fire was not dispositive of 

proximate cause. The magistrate stated that it was possible the jury concluded that this 
- 7 - 

belief was "mere speculation" and noted that the Chief did not explain this belief in detail. 

{¶24} The magistrate also found that the jury may have concluded that the onehour fire-resistance floor/ceiling assembly would not have allowed the firefighters an 

additional 30 minutes before the ceiling collapsed in an arson fire. The magistrate noted 

Zeiler's testimony suggesting that the fire spread quickly through the attorneys' office. 

Sharp also testified that the fire began as a gasoline fire that initially burned between 800o 

and 1700oF. Further, no witnesses testified regarding the temperature of the gas used 

during the testing of the one-hour fire-resistance assemblies. The magistrate concluded 

that the jury likely believed that One Step failed to demonstrate by the greater weight of 

the evidence that a Type 5A building could have been saved despite the arson fire 

because there was no expert testimony on the effect of an arson fire on a one-hour fireresistance assembly. 

{¶25} On April 5, 2011, the trial court issued a judgment entry overruling One 

Step's objections and adopting the December 22, 2010 magistrate's decision. On that 

same date, the court also issued a judgment entry overruling One Step's motion for JNOV 

and for a new trial. 

{¶26} On April 13, 2011, One Step filed objections to the March 31, 2011 

magistrate's decision and requested to supplement its objections with applicable portions 

of the trial transcript. One Step subsequently filed the trial transcript on April 20, 2011. 

On that same date, One Step also filed a supplemental memorandum in support of its 

objections and motion for JNOV and for a new trial. 

{¶27} One Step filed a timely notice of appeal from the trial court's April 5, 2011 

judgment entry with this court on May 4, 2011. This notice of appeal stated that One Step 

was appealing from an order granting a motion to compel. 

{¶28} On May 20, 2011, One Step filed a motion for leave to file an amended 

notice of appeal. It explained that in its original notice of appeal it incorrectly described 

the order appealed from and that the correct order it was appealing from was the April 5, 

2011 judgment entry denying its motion for JNOV and for new trial. 

{¶29} On May 22, 2012, this court issued a judgment entry remanding the case to 
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the trial court for the limited purpose of issuing a ruling on One Step’s April 13, 2011 

objections to the March 31, 2011 magistrate’s decision pursuant to Civ.R. 53(D)(4)(e)(i). 

On July 17, 2012, the trial court issued a judgment entry overruling One Step’s objections 

and ordering judgment for CTW. 

Motion for Judgment Notwithstanding the Verdict 

{¶30} In its sole assignment of error, One Step asserts: 

{¶31} "The Trial Court erred in denying Plaintiff's Motion for Judgment 

Notwithstanding the Verdict as no competent, admissible evidence was presented to 

permit the conclusion that failure to use the required fire resistant materials did not 

proximately cause Plaintiff's injuries." 

{¶32} As an initial matter, the parties disagree regarding the standard of review. 

One Step contends that this court should apply a de novo standard to evaluate the trial 

court's denial of its motion for JNOV. CTW argues that an abuse of discretion standard is 

appropriate because One Step has appealed from the trial court's judgment entry which 

adopted the December 22, 2010 magistrate's decision. CTW contends that because One 

Step did not argue in its brief that the trial court abused its discretion in adopting the 

magistrate's decision and failed to file a trial transcript in support of its objections prior to 

the trial court's April 5, 2011 judgment entry, this court should affirm the trial court's 

judgment. 

{¶33} In response, One Step asserts that its January 4, 2011 objections/motion for 

JNOV and for a new trial was only a motion for JNOV and for a new trial, despite the title 

of this pleading. The magistrate denied this motion, and One Step objected to that 

decision. The trial court issued its judgment entry on April 5, 2011, and One Step asserts 

that it subsequently timely filed the trial transcript on April 20, 2011. It notes that the trial 

court never issued a subsequent judgment entry considering the trial transcript and 

performing an independent review of the objections. 

{¶34} However, following this court’s remand of the case to the trial court to rule 

on One Step’s April 13, 2011 objections, the trial court has now overruled these 

objections. One Step is correct that we should review the trial court's denial of its motion 
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for JNOV under a de novo standard of review. Although One Step did not correctly 

specify which April 5, 2011 judgment entry it was appealing from in its original notice of 

appeal, it is clear from its motion to amend the notice of appeal and from the assignment 

of error in its brief that it is appealing from the trial court's denial of its motion for JNOV. 

{¶35} Motions for JNOV employ the same standard as motions for directed 

verdict. Posin v. A.B.C. Motor Court Hotel, Inc., 45 Ohio St.2d 271, 275, 344 N.E.2d 334 

(1976). A trial court must grant a motion for directed verdict or JNOV if "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." Civ.R. 50(A)(4). When making this decision, the court does not weigh the 

evidence or evaluate the credibility of the witnesses. Malone v. Courtyard by Marriott, 74 

Ohio St.3d 440, 445, 659 N.E.2d 1242 (1996). "Rather, the court is confronted solely with 

a question of law: Was there sufficient material evidence presented at trial on this issue to 

create a factual question for the jury?" Id. This court reviews the trial court's decision de 

novo. Jelinek v. Abbott Laboratories, 164 Ohio App.3d 607, 2005-Ohio-5696, 843 N.E.2d 

807, ¶ 35 (10th Dist.). 

{¶36} One Step's claim against CTW is for negligence. To sustain a claim of 

negligence, a plaintiff must show a duty owed by defendant to a plaintiff, a breach of that 

duty, injury or damages, and the existence of proximate cause between the breach and 

the injury or damages. Menifee v. Ohio Welding Products, Inc., 15 Ohio St.3d 75, 77, 472 

N.E.2d 707 (1984). At issue here is whether CTW's negligence proximately caused One 

Step's damages. "'Proximate cause' has been defined as a happening or event that as a 

natural or continuing sequence, produces an injury without which the injury would not 

have occurred." McDougall v. Smith, 191 Ohio App.3d 101, 2010-Ohio-6069, 944 N.E.2d 

1218, ¶ 5 (3d Dist.), quoting Murphy v. Carrollton Mfg. Co., 61 Ohio St.3d 585, 575 

N.E.2d 828 (1991). 

{¶37} One Step argues that CTW presented no evidence which proved by a 

preponderance of the evidence that the one-hour fire-resistance rating could not 
- 10 - 

withstand this fire. It points to Chief Tieche's testimony that the firefighters could have 

suppressed the fire if they had an additional 30 minutes to fight the fire. One Step also 

notes that the building code does not distinguish in its construction requirements based 

on how a fire begins. However, One Step has framed its argument such that it has 

misapplied the burden of proof. Despite One Step's claim that CTW did not present 

sufficient evidence on the issue of proximate cause, as the plaintiff bringing the 

negligence claim, One Step had the burden of proof to establish proximate cause, not 

CTW. Menifee at 77. Thus, we must review the issue of proximate cause from the 

proper perspective: did One Step prove by a preponderance of the evidence that the onehour fire-resistance rating would have withstood this arson fire? 

{¶38} Based on the testimony of Chief Tieche and Zeiler, this fire burned for 

approximately 30 minutes before the ceiling in the attorneys' office collapsed. CTW 

contends that no witness could testify to when the fire started or how long it burned 

before the alarms engaged. However, Sharp testified that the fireball created in an arson 

fire would heat the ambient air in the room immediately and could cause the temperature 

in the room to rise to 135oF, the temperature at which the heat detector would engage. 

Thus, there was substantial evidence presented such that the jury could conclude that the 

ceiling collapsed less than one hour after the fire began. 

{¶39} One Step claims that Chief Tieche's testimony is unrefuted evidence 

regarding proximate cause. But as the trial court noted, the jury likely concluded that 

even with the one-hour fire-resistance assembly, the ceiling still would have collapsed in 

less than an hour due to the nature of the arson fire. Several witnesses testified that an 

arson fire is more intense, hotter, or burns faster than a fire started without an accelerant. 

For example, Chief Tieche testified that a fire started by gasoline would burn quickly and 

be more intense than a regular fire. Sharp also testified that gasoline is an accelerant 

that causes a fire to burn faster, and he testified that the fireball created by the gasoline 

would be very hot, between 800o and 1,700oF. One Step further claims that the evidence 

only showed the effect of gasoline in starting a fire and that the fireball created by the 

gasoline would subside quickly and the room would burn the same as if no accelerant 
- 11 - 

was used. However, Chief Tieche testified that the attorneys' office was full of paper, and 

Sharp confirmed that the way an arson fire would burn and spread depends upon the 

combustibles nearby. He further testified that paper is a good fuel load for a fire and that 

a room full of paper would make a difference in how the fire burned. 

{¶40} Finally, One Step argues that the building code does not distinguish 

between types of fires and no evidence was presented that the one-hour fire-resistance 

assembly would not provide an hour of protection against the fire. However, Berry 

testified that because this fire was arson, it would not make a difference whether the 

ceiling contained a fire-resistance assembly. Further, Kraly also testified that the onehour fire-resistance ratings in the building code do not account for arson. While 

Grusenmeyer did testify regarding the testing performed on the one-hour fire-resistance 

assemblies, he believed that the temperature of the gas flame used during the tests 

would exceed 1,000oF but did not know the exact temperature used in the testing. He 

agreed that an assembly would likely burn slower if the flames were 800o as opposed to 

1700oF. 

{¶41} Thus, construing this evidence most strongly in favor of CTW, there is 

substantial competent evidence upon which reasonable minds could come to different 

conclusions on the issue of proximate cause. Accordingly, the trial court did not err in 

overruling One Step's motion for JNOV. 

{¶42} In sum, One Step's sole assignment of error is meritless. The record 

contains substantial evidence upon which reasonable minds could reach different 

conclusions on the issue of proximate cause; thus, the trial court did not err in denying 

One Step's motion for JNOV. Accordingly, the judgment of the trial court is affirmed. 

Donofrio, J., concurs. 

Vukovich, J., concurs.