[Cite as Riebe v. Hilton, 2012-Ohio-1699.]

STATE OF OHIO, MAHONING COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

NICHOLINA RIEBE, et al. ) CASE NO. 11 MA 180 

) 

PLAINTIFFS-APPELLEES ) 

) 

VS. ) OPINION 

) 

SILKA HILTON, et al. ) 

) 

DEFENDANTS-APPELLANTS ) 

CHARACTER OF PROCEEDINGS: Civil Appeal from the Youngstown 

Municipal Court of Mahoning County, 

Ohio 

Case No. 10 CVI 1771 

JUDGMENT: Modified. Affirmed. 

APPEARANCES: 

For Plaintiffs-Appellees: Nicholina Riebe, Pro se 

1698 Olson Avenue 

Youngstown, Ohio 44509 

Kelly K. Riebe, Pro se 

4595 Alderwood Drive 

Canfield, Ohio 44406 

For Defendants-Appellants: Atty. Timothy F. George 

1029 Youngstown-Warren Road 

Niles, Ohio 44446 

JUDGES: 

Hon. Cheryl L. Waite 

Hon. Gene Donofrio 

Hon. Mary DeGenaro 

Dated: March 28, 2012
[Cite as Riebe v. Hilton, 2012-Ohio-1699.]

WAITE, P.J. 

{¶1} This is an appeal of a small claims action in Youngstown Municipal 

Court involving an automobile accident. Appellee Nicholina Riebe (“Appellee”) filed a 

pro se negligence complaint after her daughter Kelly K. Riebe (“Riebe”) was involved 

in an accident using Appellee’s car. The accident occurred when Appellant Silka S. 

Hilton (“Hilton”) was making a left turn on McCollum Road in Youngstown. Riebe 

was travelling in the opposite direction on McCollum Road. The two cars collided 

before Hilton finished making the left turn. The other defendant in the case is Hilton’s 

mother, Appellant Celina H. Gardenhire (“Gardenhire”) who was the owner of the car 

that Hilton was driving. 

{¶2} Appellee alleged that Hilton failed to yield while making a left turn, and 

thus, was responsible for the accident. She filed the small claims action to recover 

the cost of the vehicle, which was destroyed in the accident. The case was heard 

before a magistrate, who ruled in Appellee’s favor in the amount of $2,610 plus costs. 

Appellee was unrepresented by counsel both at trial and in this appeal. Appellants 

argue that judgment against Gardenhire, the vehicle owner, was inappropriate 

because Appellee failed to prove (or even allege) negligent entrustment. Appellants 

are correct, and the judgment against Gardenhire must be dismissed. Appellants 

also argue that the trial court incorrectly relied on evidence that Hilton pleaded no 

contest to a left turn violation. Evid.R. 410(A) prohibits the use of no contest pleas as 

evidence in any civil or criminal action. The record does not reflect that the trial court 

relied on the no contest plea in rendering its judgment, and this argument has no 
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merit. The judgment of the trial court is modified to dismiss the claim against Celina 

H. Gardenhire, and is affirmed in all other aspects. 

{¶3} The accident occurred on August 20, 2009. The record reflects that 

Appellee, as the owner of the car Riebe was driving, filed the small claims action 

because the other driver had no insurance. Questions about insurance coverage are 

not part of this case, although it is clear from the record that there was no insurance 

on Gardenhire’s vehicle at the time of the accident. Riebe does not appear to be a 

party to this action, as she did not sign her mother’s small claims complaint nor 

otherwise join the lawsuit. 

{¶4} Attached to the small claims complaint was a copy of a Youngstown 

traffic citation that Hilton received at the time of the accident. Hilton was cited for 

violating Youngstown Municipal Ordinance (“Ord.”) 331.17, which requires a driver 

making a left turn to yield to a vehicle approaching in the opposite direction. 

Appellee also attached a copy of Hilton’s no contest plea to the complaint. The small 

claims case was heard at a bench trial before a magistrate on August 5, 2010. 

Appellee proceeded pro se, but the defendants were represented by counsel. Riebe 

described her version of the accident, and Appellee testified about the value of the 

vehicle and the disposition of the vehicle after the accident. The accident occurred at 

the intersection of McCollum Road and Schenley Avenue in Youngstown. Hilton was 

heading west and attempted to make a left turn to travel south on Schenley Ave. 

Riebe was heading east and hit Hilton’s car as it was in the intersection making the 

left turn. Hilton also testified that she was making a left turn on McCollum when the 
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cars collided, but she did not remember seeing Riebe’s vehicle as she was making 

the turn. 

{¶5} Appellants’ attorney objected to Appellee’s use of the no contest plea to 

Ord. 331.17 as proof of liability. The magistrate agreed that it could not be used as 

evidence. (Tr., p. 27.) 

{¶6} The magistrate found in favor of Appellee and awarded her $2,610 for 

the value of the car and for the towing charge. Appellants filed objections to the 

magistrate’s decision, but the trial court overruled the objections and adopted the 

magistrate’s decision on December 6, 2010. This appeal followed. Appellee has not 

filed a brief on appeal, which allows us to “accept the appellant's statement of the 

facts and issues as correct and reverse the judgment if appellant's brief reasonably 

appears to sustain such action.” App.R. 18(C). 

ASSIGNMENT OF ERROR NO. 1

{¶7} “THE TRIAL COURT ERRED IN GRANTING JUDGMENT AGAINST 

APPELLANT, CELINA GARDENHIRE, BECAUSE THE ELEMENTS OF 

NEGLIGENT ENTRUSTMENT WERE NOT ESTABLISHED.” 

{¶8} Appellants’ first argument is that Gardenhire, who owns the vehicle that 

Hilton was driving but was not in the vehicle at the time of the accident, should not be 

liable for any part of the judgment because Appellee did not allege or prove any 

theory by which she could be held liable. Appellants contend that the owner of a 

vehicle may be held vicariously liable when a vehicle is negligently entrusted to 

another, but no allegation or proof of negligent entrustment was made in this case. 
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Appellants are correct. In order to prove negligent entrustment, the plaintiff must 

show that “that the owner of the automobile had knowledge of the driver's 

incompetence, inexperience or reckless tendency as an operator, or that the owner, 

in the exercise of ordinary care, should have known thereof from facts and 

circumstances with which he was acquainted.” Mt. Nebo Baptist Church v. Cleveland 

Crafts Co., 154 Ohio St. 185, 93 N.E.2d 668 (1950), paragraph two of the syllabus. 

{¶9} There is no evidence in the record supporting the conclusion that 

Gardenhire gave Hilton permission to use the vehicle, or that she had any knowledge 

that Hilton may have had any history of incompetence, inexperience or reckless 

tendencies as an operator of a motor vehicle. The only evidence on the subject 

came from Gardenhire herself, who stated that she did not permit Hilton to use the 

car and did not entrust her car to Hilton. (Tr., p. 26.) There is no evidence at all 

about Hilton’s driving history. Because Appellee did not attempt to establish 

negligent entrustment or advance any other theory as to Appellant’s liability as mere 

owner of the car, she should have been dismissed as a defendant. Appellants were 

not insured at the time of accident, and there are no issues regarding possible 

insurance claims that might arise based on ownership of the vehicle. The judgment 

of the trial court is modified to dismiss Gardenhire from the case. 

ASSIGNMENT OF ERROR NO. 2

{¶10} “THE TRIAL COURT ERRED IN CONSIDERING THAT APPELLANT, 

SILKA HILTON, WAS CHARGED WITH A VIOLATION OF YOUNGSTOWN CITY 
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ORDINANCE 331.17 INASMUCH AS SAID APPELLANT ENTERED A PLEA OF NO 

CONTEST TO SAID CHARGE.” 

{¶11} Appellants’ second assignment of error alleges that the trial court 

improperly relied on evidence of a no contest plea to establish that Hilton was liable 

for the accident. Evid.R. 410(A)(2) prohibits the use of a no contest plea as 

evidence: “[E]vidence of the following is not admissible in any civil or criminal 

proceeding against the defendant who made the plea or who was a participant 

personally or through counsel in the plea discussions: * * * (2) a plea of no contest or 

the equivalent plea from another jurisdiction”. This prohibition is repeated in Crim.R. 

11(B)(2). The Ohio Supreme Court has explained the purpose of Evid.R. 410(A) as 

follows: 

{¶12} The purpose behind the inadmissibility of no contest 

pleas in subsequent proceedings is to encourage plea 

bargaining as a means of resolving criminal cases by 

removing any civil consequences of the plea. The rule also 

protects the traditional characteristic of the no contest plea, 

which is to avoid the admission of guilt. The prohibition 

against admitting evidence of no contest pleas was 

intended generally to apply to a civil suit by the victim of the 

crime against the defendant for injuries resulting from the 

criminal acts underlying the plea. The plain language of 

Evid.R. 410(A) prohibits admission of a no contest plea, 
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and the prohibition must likewise apply to the resulting 

conviction. To find otherwise would thwart the underlying 

purpose of the rule and fail to preserve the essential nature 

of the no contest plea. (Citations omitted.) Elevators Mut. 

Ins. Co. v. J. Patrick O'Flaherty's, 125 Ohio St.3d 362, 

2010-Ohio-1043, 928 N.E.2d 685, ¶14. 

{¶13} The record does not reflect that the magistrate or the trial judge relied 

on the no contest plea as proof of liability. The magistrate sustained Appellants’ 

objection to the use of the no contest plea, and stated that “I tell everyone in traffic 

court, a no contest plea can’t be used against you at any later civil proceeding.” (Tr., 

p. 27.) The magistrate’s findings of fact and conclusions of law do not make any 

reference to the no contest plea. A judge, or in this case, a magistrate, proceeding in 

a bench trial is presumed to know the law and apply it correctly. State v. Eley, 77 

Ohio St.3d 174, 180-181, 672 N.E.2d 640 (1996); E. Cleveland v. Odetellah, 91 Ohio 

App.3d 787, 794, 633 N.E.2d 1159, (8th Dist.1993). Nothing in this record acts to 

overcome this presumption. The remaining evidence in the record firmly supports a 

conclusion that Hilton made a left turn and failed to yield to the oncoming driver, and 

thus, was negligent and was liable for damages. Appellants’ argument is 

unpersuasive, and this assignment of error is overruled. 

{¶14} In conclusion, Appellants are correct that the owner of the vehicle 

involved in the accident, Celina H. Gardenhire, should have been dismissed from the 

action because no theory of liability against her was set forth or proven. Appellants 
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are incorrect that the trial court relied on Hilton’s no contest plea to a left turn violation 

as proof of liability. The magistrate had other evidence to rely on to support its 

judgment in favor of Appellee, and nothing in the record demonstrates that the trial 

court relied on the no contest plea. The judgment entry is therefore modified to 

reflect that Gardenhire is dismissed as a party and is not liable for the judgment. The 

judgment is affirmed in all other aspects. 

Donofrio, J., concurs. 

DeGenaro, J., concurs.