“Upon review, we hold that there is insufficient evidence of causation as a matter of law to support the claims of negligence and negligent entrustment against Giant Eagle.”

Justice Stewart, opinion of the court

On September 19, 2019, the Supreme Court of Ohio handed down a merit decision in   Rieger v. Giant Eagle, Inc., 2019-Ohio-3745. In a unanimous opinion written by Justice Stewart, the court held that Giant Eagle should have been granted a directed verdict in this personal injury case involving an accident where a customer drove one of its motorized carts into another customer.  The case was argued April 24, 2019.

Case Background

In December of 2012, Barbara Rieger (who died August 26, 2019) was standing at the bakery counter of a Giant Eagle Store in Brook Park when her shopping cart was hit by one of Giant Eagle’s motorized carts, driven by Ruth Kurka. Rieger was knocked to the ground, injured, and taken to the hospital where she incurred $11,511 in medical expenses. Rieger sued Kurka and Giant Eagle for negligence and negligent entrustment. Ruth Kurka died before the trial, but her estate settled with Rieger for $8500.

Rieger’s suit against Giant Eagle proceeded to trial.  Pertinent to this appeal was deposition testimony from George Kurka, Ruth’s husband.  He testified that Ruth had been diagnosed with dementia before this accident, and that Ruth had never been trained on how to operate the motorized cart.  There was also evidence that Ruth had driven these carts regularly for more than a year without incident. A corporate representative from Giant Eagle testified that there are no operational instructions on the carts, Giant Eagle assumes those who use the carts know how to do so, and that warnings posted for the carts are for the cart operators. Rieger also presented the jury with evidence of 117 incidents at various Giant Eagle Stores involving motorized cars from 2004-2012.

Giant Eagle moved for a directed verdict on the negligence and negligent entrustment claims, which the trial court denied. The jury found Giant Eagle liable and awarded Rieger compensatory damages of $121,000 (which was reduced by the $8500 settlement with the Kurka Estate) and punitive damages of $1,198,000. Rieger filed a motion arguing that R.C. 2315.21, the Ohio statute capping punitive damages at twice the compensatory damages, was unconstitutional. The trial court agreed, and entered judgment for Rieger in the amount of $112,500 in compensatory and $1,198,000 in punitive damages. Giant Eagle appealed.

The Appeal

In a unanimous decision, the Eighth District Court of Appeals affirmed the compensatory damage award, but reversed the trial judge’s finding that R.C. 2315.21  was unconstitutional, and reduced the punitive damages award to $242,000. Giant Eagle appealed.

Read the oral argument preview of the case here, and an analysis of the argument here.

Key Precedent

R.C. 2315.21(C) (plaintiff cannot recover punitive damages unless there has been a verdict in favor of the plaintiff for compensatory damages.)

Gulla v. Straus, 154 Ohio St. 193 (1950) (Negligent entrustment involving the operation of a motorized vehicle requires the owner’s knowledge of the driver’s incompetence.)

Renfroe v. Ashley, 167 Ohio St. 472 (1958) (Plaintiffs must present evidence of causation before the question of causation can go to a jury.)

Strother v. Hutchinson, 67 Ohio St.2d 282 (1981) (In an action for negligence, plaintiffs must show the existence of a duty, the breach of a duty, and an injury because of the breach of duty.)

Anderson v. St.Francis-St.George Hosp.Inc. 77 Ohio St.3d 82  (1996) (Causation is established using the “but-for” test. A defendant’s conduct is a cause of the harm if the harm would not have occurred but for that conduct, citing Prosser & Keeton, Law of Torts (5 Ed.1984) 266.)

White v. Leimbach, 2011-Ohio-6238 (A motion for a directed verdict is properly granted to the moving party when “reasonable minds could come to but one conclusion upon the evidence submitted.”)

Johnson v. Wal-Mart Stores E., L.P., 2014-Ohio-2998 (2^nd Dist (In case involving motorized carts at Wal-Mart, appeals court held that lack of customer training on use of carts insufficient to establish lack of training caused plaintiff’s injury.)

Giant Eagle’s Propositions of Law Accepted for Review

Proposition One

For stores that provide motorized carts to disabled shoppers, the Eighth District created entirely new tort duties owed by them—a duty to warn the user about the obvious danger of a pedestrian-cart collision, a duty to train disabled customers how to operate a simple motorized car, and a duty to interrogate customers to determine whether their disability disqualifies them from operating a cart.

Proposition Two

The Eighth District has created a new standard for malice that makes the mere possibility of harm from the underlying tortious conduct—no matter how improbable—sufficient for an award of punitive damages.

Proposition Three

For accidents involving motorized shopping carts, the Eighth District created a new strict liability standard for stores by (a) eliminating the need to prove that the store’s negligence caused the accident and (b) basing that liability solely on dissimilar motorized shopping cart accidents thereby rendering the store an insurer for such accidents.

Are The Propositions of Law Adopted?

The court found that it only needed to address the third one to resolve the case and found that there was insufficient evidence as a matter of law to establish causation for either negligence or negligent entrustment.

Merit Decision

Analysis

Torts 101

To win a negligence claim, a plaintiff must prove duty, breach, causation, and damages. (I can see all of my former students rolling their eyes, given the number of times I repeated this to them).

Failure of Proof on Causation

The court determined that in this case the key element is causation. So, the question is, was there any evidence that Rieger would not have been injured if Giant Eagle had trained Kurka to operate the motorized cart?

Usually causation is a question of fact for the jury. But to reach that threshold, the plaintiff must present sufficient evidence of causation, which is established by the “but-for” test. “A defendant’s conduct is the cause of the harm if the harm would not have occurred but for the defendant’s act or failure to act,” wrote Stewart from the torts primer.

In this case, while the court of appeals found sufficient evidence from which the trier of fact could find that Giant Eagle was negligent, the appeals court also found the only element of a tort claim Rieger had established was the existence of a duty, from Giant Eagle’s knowledge of 117 prior incidents involving motorized carts.  But, Stewart wrote, even if the court were to agree that there was legally sufficient evidence to establish that Giant Eagle owed a duty to Rieger, Rieger still had to prove that the store’s failure to provide Kurka with instruction or training on how to use the carts caused Rieger’s injuries, and the appeals court opinion did even address causation.

It Was All Just Speculation

Rieger presented no evidence that the other 117 motorized-cart incidents were caused by their drivers’ lack of training and instruction. Nor did she present any evidence that this lack of instruction and training was the cause of the accident in her case. So, because of the insufficient evidence of causation, the court does not need to decide the sufficiency of the evidence of duty, breach or damages. One strike and you’re out.

The Negligent-Entrustment Claim

This claim suffers the same fate. To establish such a claim, the plaintiff must show that the motorized cart was operated with the owner’s permission, the driver was incompetent to operate it, and the owner knew it. And that the owner ‘s negligence in this regard caused the plaintiff’s injury.

Specific to this case, despite the fact that Giant Eagle did not provide training for customers who use the motorized cars, there is no evidence training would have prevented this accident.  In fact, the evidence was that Kurka had driven the carts for well over a year without incident. Nor did Rieger present any evidence that Kurka’s dementia, which was diagnosed well before the accident, had any causal relationship to the accident. So, again, no causation, and no need to analyze the other elements.

Good-Bye Punitive Damages

Without compensatory damages there can’t be punitive damages.

What Should Have Happened Here?

The trial court should have granted Giant Eagle’s motion for a directed verdict, and the court of appeals should not have affirmed the denial of that motion. So, the court of appeals’ judgment is reversed, and judgment is entered in favor of Giant Eagle.

The end.

Concluding Observations

Both student contributor Mark Tassone and I correctly called this for Giant Eagle, even though neither one of us cared for its lawyer’s argument.

This case was pretty much over after the oral argument. Justice DeWine took the lead in relentless questioning of Rieger’s lawyer about causation.  Specifically, he asked what Giant Eagle could have done with this particular driver, and how that could have prevented this accident, adding that if Rieger couldn’t explain that he didn’t know how she could prevail. She couldn’t, and she didn’t.

And while I know the court hung its decision on causation, I, with my notorious plaintiff’s heart, think the court was generous in even finding a duty here.  Rieger certainly had a garden variety negligence action against Kurka, but not to me against Giant Eagle.

Too bad I’m retired.  This would be an interesting case to reach my first-year torts students.