The opinion
[Cite as Warkoczeski v. Speedway, 2010-Ohio-2518.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
AUGLAIZE COUNTY
BETTY J. WARKOCZESKI,
PLAINTIFF-APPELLANT, CASE NO. 2-09-26
v.
SPEEDWAY SUPERAMERICA, LLC, OPINION
DEFENDANT-APPELLEE.
Appeal from Auglaize County Common Pleas Court
Trial Court No. 2008 CV 0323
Judgment Affirmed
Date of Decision: June 7, 2010
APPEARANCES:
Joseph W. O’Neil and Jennifer N. Brown for Appellant
Anthony J. Calamunci and Amy L. Butler for Appellee
Case No. 2-09-26
SHAW, J.
{¶1} Plaintiff-appellant Betty J. Warkoczeski (“Betty”) appeals the
September 24, 2009 Judgment Entry of the Auglaize County Court of Common
Pleas rendered on the September 4, 2009 jury verdict in favor of defendant-
appellee Speedway (“Speedway”).
{¶2} The case arises out of the following set of facts. On October 14,
2007, Betty was travelling with her daughter and son-in-law, Julie and Marv Scott,
on Interstate I-75. The three were on their way home from visiting with Betty’s
granddaughter, Meredith Scott, in Dayton. At approximately11:08 a.m., they
made a stop at the Speedway1 in Cridersville, Ohio. Marv parked at one of the gas
pumps and exited the car to use the facilities in the Speedway convenience store.
A few minutes later, Julie and Betty followed behind also intending to use the
facilities and purchase some refreshments for the remainder of the trip.
{¶3} As they approached the entrance to the convenience store from the
parked car, Julie walked on Betty’s right side while holding her right hand.
Located in front of the entrance to the store, was a sidewalk with a three inch curb.
This sidewalk extended along the entire front side of the building. To the left of
the front entrance was a slight ramp located at the end of the sidewalk which
created easy access to the store for wheelchairs and deliveries. Located to the
1
Speedway is in the business of selling fuel, food, drinks and other items to the general public.
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right of the ramp, was a drain which diverted the water runoff from the gutters into
the main parking lot. The drain was covered by a metal plate designed to sit flush
with the surrounding sidewalk (collectively referred to by the parties as “the
grate”). It is undisputed by the parties that the metal grate covering the drain was
deteriorated and displayed several areas of rust and corrosion.
{¶4} As they approached the curb at the front of the store, Julie released
Betty’s right hand and moved ahead to open the store’s door for Betty. Betty
claims that as she advanced toward to the door, she stepped up onto the grate
which unexpectedly moved from under her feet, and caused her to fall. Betty
stated that she fell on the concrete and landed on the left side of her body. As a
result of the fall, Betty broke her wrist and suffered injuries to her left hip and leg.
{¶5} Betty was taken by an ambulance to a local hospital shortly
thereafter. There were no eyewitnesses to the cause of Betty’s fall. Julie testified
that she did not observe the origin of Betty’s fall, and only caught sight of Betty in
mid-air as she descended onto the cement. Moreover, the location of Betty’s fall
occurred outside of the line of sight of Speedway’s surveillance cameras. As a
result, the only evidence of what occurred is Betty’s account of her fall.
{¶6} On September 16, 2008, Betty filed this lawsuit against Speedway
alleging premises liability negligence. Specifically, Betty alleged that Speedway
owed her a duty as a business invitee; that Speedway breached this duty by
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permitting a dangerous and hazardous condition to exist—i.e. the grate; that
Speedway knew or should have known that the condition of the grate would cause
injury to Betty and other business invitees; that Speedway failed to warn Betty and
other business invitees of the dangerous and hazardous condition of the grate and;
that these negligent acts were the proximate cause of Betty’s injuries. On October
16, 2008, Speedway filed its answer denying inter alia any negligence on its part,
and stating that it had no duty to warn Betty of an open and obvious hazard.
{¶7} Various pleadings and pre-trial motions were filed. Several
witnesses, including Betty, were deposed. In her deposition, Betty stated how she
remembered the incident occurred. Specifically, Betty testified that she first
stepped with her right foot up onto the concrete sidewalk on top of the curb. Then
she next stepped with her left foot directly onto the grate. Betty testified that she
immediately fell to her left upon taking her second step with her left foot.
However, Betty also testified that the fall happened so fast and she could not recall
feeling the grate move or seeing the grate move when she stepped on it. Further,
when asked by Speedway’s counsel if she saw the grate before stepping on to it,
Betty replied, “I assume I did, yes.” (Depo. p.53).
{¶8} Approximately three weeks after she was deposed, Betty submitted
an “errata sheet” to her deposition. In the errata sheet, Betty claimed she was able
to describe the sequence of her steps immediately prior to her fall with greater
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clarity. Betty now stated that as she approached the curb at the front of the store,
she actually made her first step with her left foot onto the grate and then
subsequently fell. Betty further described her fall “like there was no sidewalk
where there should have been sidewalk.” (Errata Sheet p.1).
{¶9} In an attempt to understand the mechanics of Betty’s fall, each party
hired an expert to conduct an analysis of the scene and to reconstruct the
conditions of Betty’s fall. Betty’s expert, Michael Hayslip, a civil engineer,
attorney, and a Certified Safety Professional, conducted his investigation of the
scene on March 16, 2009. And Speedway’s expert, Larry Goodwin, a mechanical
engineer experienced in accident reconstruction and analyzing structural failures
conducted his investigation of the scene on May 8, 2009. Because there were no
eyewitnesses to Betty’s fall, both experts relied on Betty’s account of her fall and
their respective investigations of the scene to determine whether the grate was the
proximate cause of her injuries.
{¶10} On August 4, 2009 Betty filed a motion to exclude the testimony of
Speedway’s expert, Larry Goodwin. On August 14, 2009, Speedway filed several
motions including a motion to exclude the testimony of Betty’s expert, Michael
Hayslip. Speedway also filed a motion in limine to preclude the introduction of
any evidence of subsequent remedial measures.
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{¶11} On August 21, 2009, the trial court held an evidentiary hearing on
the pending matters wherein counsel for both parties argued the merits of their
motions. On September 1, 2009, the trial court ruled on the motions via its
Judgment Entry. The court granted Speedway’s motion to preclude any evidence
of subsequent remedial measures and denied both parties’ motions to exclude the
other’s expert testimony. The case proceeded to trial on the same day.
{¶12} In support of her case, Betty presented the testimony of several
witnesses including that of Julie, Marv, multiple Speedway employees familiar
with the condition of the grate at the time and/or prior to the incident, and expert
Hayslip. Betty provided similar testimony at trial to that given in her deposition.
Betty maintained that her second account submitted in the errata sheet—that she
made her first step with her left foot onto the grate—was the correct sequence of
her footing. Betty also testified that she did not look down to see her foot step
onto the grate and that she did not have any memory as to how she fell.
Nevertheless, she maintained throughout her testimony that the grate was the
cause of her fall.
{¶13} Betty’s expert, Hayslip, also testified and concluded that the grate
was unsafe and had the ability to move unexpectedly when stepped upon.
Moreover, as a safety expert, much of Hayslip’s testimony focused on his
assessment that Speedway breached its duty to Betty and other business invitees
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by failing to use ordinary care and failing to give adequate warning of the grate’s
dangerous condition. In assessing whether the grate was the proximate cause of
Betty’s injuries, Hayslip opined that he believed Betty’s account of how she fell in
her deposition was accurate and “plausible” given the testimony of other
Speedway employees who said they experienced the grate move when they
walked across it.
{¶14} As the primary portion of its defense, Speedway presented the
testimony of expert Goodwin. Goodwin’s testimony focused on proximate cause.
Goodwin testified that based on his analysis of the scene, he concluded that it was
improbable that Betty fell the way she described in both her deposition and errata
sheet. After reviewing the surveillance video recorded at the time of the incident
and his analysis at the scene, Goodwin concluded that Betty was positioned further
to the left of the grate than she stated in her deposition. Goodwin concluded that
Betty’s location immediately before she fell was in a zone that encompassed an
area between the top of the ramp and the grate.
{¶15} Based on this conclusion, Goodwin further identified two scenarios
which he concluded were more consistent with both of Betty’s accounts.
Goodwin found Betty’s first description of her fall—that she first stepped with her
right foot onto the concrete and then stepped up with her left foot onto the grate—
was improbable given where Goodwin concluded Betty to be positioned. Instead,
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Goodwin stated that Betty’s original description was more consistent with Betty
stepping with her right foot onto the grate. However, Goodwin found this scenario
was unlikely because it would have resulted in Betty falling to her right and her
injuries were clearly consistent with falling to her left.
{¶16} Goodwin concluded a second scenario was more likely. Based on
his findings which placed Betty to the left of the grate, Goodwin concluded that
Betty’s account that she made her first step with her left foot was consistent with
her stepping up onto the ramp in the sidewalk which was located directly to the
left of the grate. Further, Goodwin testified that Betty’s recollection that she felt
nothing at the moment of her fall was more consistent with the sensation a person
would experience as she stepped up onto an elevated surface and expected that
surface to be higher than it actually was thus causing a loss of balance. As a
result, Goodwin testified to a reasonable degree of scientific certainty that Betty’s
fall did not occur as she described in either her deposition or errata sheet due to his
opinion as to her placement relative to the grate at the time of her fall.
{¶17} At the close of all the evidence, the trial court read to the jury the
instructions, interrogatories and the verdict forms. The jury then retired to
deliberate and returned with a verdict later that day. The jury was given a number
of interrogatories, but only made a decision as to the first one. Interrogatory No.1
asked the jury, in its entirety, “[w]as Defendant Speedway SuperaAmerica, LLC,
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negligent?” In response, the jury circled, “NO” and seven out of the eight jurors
signed the interrogatory. The interrogatory then instructed the jury to do the
following, “[i]f your answer to this Interrogatory is “NO,” please stop and enter
judgment in favor of the Defendant.” The same seven jurors then signed the
verdict form finding in favor of Speedway. Betty now appeals to this Court,
asserting four assignments of error.
ASSIGNMENT OF ERROR NO. I
THE TRIAL COURT COMMITTED PREJUDICIAL ERROR
BY EXCLUDING EVIDENCE BASED UPON [SPEEDWAY’S]
CLAIM OF SUBSEQUENT REMEDIAL MEASURES
ASSIGNMENT OF ERROR NO. II
THE TRIAL COURT COMMITTED PREJUDICIAL ERROR
WHEN THE COURT ALLOWED LARRY GOODWIN TO
TESTIFY, BECAUSE HIS TESTIMONY LACKED BOTH
FACTUAL AND A SCIENTIFIC BASIS TO TESTIFY,
RENDERING GOODWIN’S TESTIMONY UNRELIABLE
AND NOT HELPFUL TO THE JURY, AND GOODWIN
ADDED ADDITIONAL OPINIONS AT TRIAL
ASSIGNMENT OF ERROR NO. III
THE TRIAL COURT COMMITTED PREJUDICIAL ERROR
WHEN THE COURT INSTRUCTED THE JURY AS TO
OPEN AND OBVIOUS DANGER; PLACED THE BURDEN
UPON [BETTY] TO DISPROVE THE HAZARD WAS OPEN
AND OBVIOUS; AND EXCLUDED A JURY INSTRUCTION
AS TO CONSTRUCTIVE NOTICE OF THE HAZARDOUS
GRATE
ASSIGNMENT OF ERROR NO. IV
THE TRIAL COURT COMMITTED PREJUDICIAL ERROR
WHEN THE TRIAL COURT ALLOWED SPEEDWAY TO
INTRODUCE EVIDENCE OF BETTY’S PROPENSITY TO
FALL
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{¶18} Initially, we note that for ease of discussion, we elect to address
Betty’s assignments of error out of order.
The Second Assignment of Error
{¶19} In her second assignment of error, Betty argues that the trial court
erred in allowing Speedway’s witness, Larry Goodwin, to testify as an expert. As
a basis for this assertion, Betty maintains that Goodwin’s testimony lacked both a
scientific and factual basis rendering his testimony unreliable and therefore, not
helpful to the jury.
{¶20} Trial courts have broad discretion in determining the admissibility or
exclusion of expert testimony. Terry v. Caputo, 115 Ohio St.3d 351, 356, 2007-
Ohio-5023, ¶16, 875 N.E.2d 72. Therefore, an appellate court reviews a trial
court’s decision on the admissibility of such evidence for an abuse of discretion.
Id. “Abuse of discretion suggests unreasonableness, arbitrariness, or
unconscionability. Without those elements, it is not the role of this court to
substitute its judgment for that of the trial court.” Valentine v. Conrad, 110 Ohio
St.3d 42, 43, 2006-Ohio-3561, ¶9, 850 N.E.2d 683 citing Calderon v. Sharkey
(1982), 70 Ohio St.2d 218, 222, 436 N.E.2d 1008.
{¶21} The trial court plays the role of a gatekeeper when determining the
admissibility of an expert’s testimony. Daubert v. Merrill Pharmaceuticals, Inc.,
(1993) 509 U.S. 594, 597. Thus, an expert’s testimony must meet the criteria of
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Evid.R. 702 which provides that a witness may testify as an expert if all of the
following apply:
(A) The witness’ testimony either relates to matters beyond the
knowledge or experience possessed by lay persons or dispels a
misconception common among lay persons;
(B) The witness is qualified as an expert by specialized
knowledge, skill, experience, training, or education regarding
the subject matter of the testimony;
(C) The witness’ testimony is based on reliable scientific,
technical, or other specialized information. To the extent that
the testimony reports the result of a procedure, test, or
experiment, the testimony is reliable only if all of the following
apply:
(1) The theory upon which the procedure, test, or experiment is
based is objectively verifiable or is validly derived from widely
accepted knowledge, facts, or principles;
(2) The design of the procedure, test, or experiment reliably
implements the theory;
(3) The particular procedure, test, or experiment was
conducted in a way that will yield an accurate result.
Evid.R. 702; see also State v. Rowe, 3rd Dist. Nos. 14-05-31, 14-05-46, 2006-
Ohio-1883, citing State v. Hartman (2001), 93 Ohio St.3d 274, 283-84, 754
N.E.2d 1150. Further, as an additional consideration of admissibility, the expert’s
testimony must assist the trier of fact in determining a fact issue or understanding
the evidence. Miller v. Bike Athletic Co., 80 Ohio St.3d 607, 611, 1998-Ohio-187,
687 N.E.2d 735.
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{¶22} In the present case, the parties do not dispute that Goodwin is a
qualified expert who testified about a subject beyond the knowledge of lay
persons.2 See Evid.R. 702(A) and (B). However, Betty contends that Goodwin’s
opinion is not reliable and therefore does not satisfy Evid.R. 702(C). In
determining whether Goodwin’s opinion is reliable, our inquiry focuses on
whether the principles and methods Goodwin employed to reach his opinion are
reliable, and not on whether his conclusions are correct. See Miller, 80 Ohio St.3d
at 613.
{¶23} Speedway asked Goodwin to evaluate the site conditions and
reconstruct the incident causing Betty’s injuries. As the primary focus of his
investigation, Goodwin analyzed the scene according to Betty’s account of her fall
in both her deposition and errata sheet. Goodwin also used the video surveillance
from the date of incident which displayed the trajectory that Betty and Julie took
from the parked car at the gas pumps to the front of the convenience store.
However, as noted above, the location of the grate and the area where Betty fell
were outside of the line of sight of Speedway’s surveillance cameras.
{¶24} In order to recreate the part of Betty’s path not captured by
Speedway’s cameras, Goodwin took measurements of the grate and the
2
Goodwin is a professional engineer who has conducted accident reconstructions for the past fifteen years.
Goodwin holds professional registration as an engineer in sixteen states in addition to Ohio and has
testified as an expert in those states. Additionally, Goodwin has participated as an expert in nearly 150
cases similar to the case sub judice.
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surrounding area. Goodwin used the video surveillance from the incident as a
starting point. He then re-created the scene from those camera angles so that he
could assess Betty’s entire path. Goodwin then compared the camera angles from
the surveillance camera on the date of Betty’s fall and the ones he used on the date
of his investigation. Based on his reconstruction of Betty’s entire path, Goodwin
concluded that Betty’s position at the time of her fall was located somewhere
between two end points—the leftmost point being the top of the ramp and the
rightmost point being the right edge of the grate. Accordingly, Goodwin
concluded to a reasonable degree of scientific certainty that it was highly
improbable that Betty stepped on the grate with her left foot, as she had described
in her testimony.
{¶25} Betty raises two issues with Goodwin’s investigation to contend that
principles and methods he used are unreliable and should have been excluded.
{¶26} First, Betty maintains that Goodwin’s use of camera angles to
recreate the missing link of Betty’s trajectory to the store is flawed. Betty argues
that Goodwin’s methodology lacked a foundation because Goodwin failed to
verify that the camera angles on the date of his investigation were similar to the
ones on the date of Betty’s fall.
{¶27} However, at trial Goodwin testified to a reasonable degree of
scientific certainty that the camera angles on the date of his investigation were
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similar to the camera angles from the surveillance video recorded on the date of
Betty’s fall. Moreover, Hayslip—Betty’s own expert—stated numerous times
throughout his testimony that in formulating his own conclusions he relied, in part,
on the measurements and conclusions contained in Goodwin’s report. Further,
Hayslip specifically stated that he relied on the same camera angles used in
Goodwin’s investigation to conclude that Betty stepped in the zone that included
the grate. Hayslip further stated that he shared the same opinion as Goodwin
regarding Betty’s position relative to the grate immediately prior to her fall.
Indeed, the only point on which the two experts appear to diverge in their
respective testimony regarding the proximate cause of Betty’s injuries, is with
regard to their conclusion as to whether Betty’s fall was caused by her stepping up
directly onto the grate as she testified.
{¶28} Second, Betty also maintains that Goodwin’s opinion is unreliable
because his investigation did not include an extensive analysis focusing on the
stability of the grate. Specifically, Betty contends that Goodwin’s failure to
manipulate the grate and to perform load calculations to assess how much weight
the grate can withhold before becoming unstable rendered his opinion unreliable
and unhelpful to the jury. However, Betty does not provide any authority that this
type of analysis is required in order to satisfy the reliability requirement under
Evid.R. 702(C) under these circumstances. Moreover, Betty’s counsel addressed
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this specific issue at trial when he cross-examined Goodwin and inquired why
Goodwin did not use this type of analysis in his investigation. In response to this
questioning, Goodwin simply stated that he did not think that such an analysis was
relevant to the reconstruction of this incident.
{¶29} Finally, Betty complains that Goodwin made additional conclusions
in his testimony at trial that were not included in his previous deposition.
However, after reviewing Goodwin’s investigation report and his subsequent
deposition, we find that the conclusions Goodwin gave at trial were consistent
with those given in his deposition. As such, we find Betty’s contention on this
point is without merit.
{¶30} Based on the record before us, we cannot find that the trial court
erred in concluding that principles and methods Goodwin employed to reach his
opinion were reliable. Moreover, we are reminded that “the jury, as the trier of
fact, is vested with the power to judge the credibility of witnesses and to determine
the weight to be afforded to the evidence presented.” Croft v. State Farm Mutual
Auto. Ins. Co., 3d Dist. No. 1-01-72, 2002-Ohio-113, citing Swan v. Skeen (1974),
40 Ohio App.2d 307, 308-309, 319 N.E.2d 221. As such, we find no error in the
trial court’s determination on the admissibility of Goodwin expert testimony.
Betty’s second assignment of error is therefore overruled.
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The First Assignment of Error
{¶31} In her first assignment of error, Betty contends that the trial court
committed reversible error when it granted Speedway’s motion to preclude any
evidence of subsequent remedial measures. Specifically, Betty argues that the rule
barring this type of evidence is inapplicable to the present case because Speedway
did not take any subsequent remedial measures until 21 months after Betty’s fall.
Alternatively, Betty argues that the proffered evidence does not violate the rule
because it is offered for other purposes which do not require exclusion.
{¶32} A trial court is vested with broad discretion in determining the
admissibility of evidence in any particular case, so long as such discretion is
exercised in line with the rules of procedure and evidence. Rigby v. Lake Cty.
(1991), 58 Ohio St.3d 269, 271, 569 N.E.2d 1056. Therefore, an appellate court
which reviews the trial court’s admission or exclusion of evidence must limit its
review to whether the lower court abused its discretion. Id. An “abuse of
discretion” implies more than an error of law and judgment, but that the trial
court’s attitude is unreasonable, arbitrary or unconscionable. Holman v. Licking
Cty (1995), 107 Ohio App.3d 106, 112, 667 N.E.2d 1239.
{¶33} Rule 407 of the Ohio Rules of Evidence governs the admissibility of
subsequent remedial measures and provides, in its entirety:
When, after an injury or harm allegedly caused by an event,
measures are taken which, if taken previously, would have
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made the injury or harm less likely to occur, evidence of the
subsequent measures is not admissible to prove negligence or
culpable conduct in connection with the event. This rule does
not require the exclusion of evidence of subsequent measures
when offered for another purpose, such as proving ownership,
control, or feasibility of precautionary measures, if
controverted, or impeachment.
One of the rationales supporting this rule is that remedial measures have little or
no probative value in establishing negligence because the injury may have been
caused by reason of mere accident or through a plaintiff’s contributory negligence.
McFarland v. Bruno Mach. Corp. (1994), 68 Ohio St.3d 305, 308, 626 N.E.2d
659. However, “if [offered for] a purpose other than to show negligence or
culpability then evidence of subsequent remedial measures, if relevant, should be
admitted.” Worrell v. Norfolk & Western Railway Co. (1994), 94 Ohio App.3d
133, 137, 640 N.E.2d 531 citing McFarland, 68 Ohio St.3d at 307-308.
{¶34} Initially, we acknowledge that Speedway took no action to modify
the grate until 21 months after Betty’s fall. In fact, Speedway’s maintenance
department assessed the grate immediately after the incident and determined the
grate to be stable and in need of no repair. Specifically at issue in Speedway’s
motion to preclude evidence of subsequent remedial measures was the proffered
testimony of Amber Tomsett and Gary Mohre.
{¶35} After reviewing the record before us, we agree with Betty that
Evid.R. 407 is inapplicable under these circumstances to preclude the proffered
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testimony. The testimony elicited from Tomsett and Mohre does not reference
any subsequent remedial measure taken by Speedway. Accordingly, we conclude
that it was error for the trial court to have based its ruling to exclude this evidence
upon the remedial measures provisions of Evid.R. 407.
{¶36} However, upon reviewing Tomsett and Mohre’s proffered testimony,
we conclude that the trial court’s decision to exclude this evidence was not an
abuse of discretion because this testimony was not relevant to Betty’s case and
was, at best, cumulative to the other testimony offered by Betty at trial. See
Evid.R. 401.3
{¶37} At all times during the trial, the relevant inquiry focused on the
condition of the grate on October 14, 2007—at the time of Betty’s fall. Both
Tomsett and Mohre only had personal knowledge of the grate’s condition after the
incident. Amber Tomsett was an employee at the Cridersville Speedway from
December 2007—two months after Betty’s fall—to May 2008. Gary Mohre is a
private investigator employed by Betty’s counsel to assess the scene on June 23,
2008, and offer a lay person’s opinion about the condition of the grate on that date.
{¶38} Betty maintains that Tomsett and Mohre’s testimony would prove
that any danger presented by the grate was not open and obvious because both
3
Evid.R. 401 states, in its entirety: “Relevant evidence” means evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence.
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witnesses would offer evidence that the grate moved unexpectedly when they
walked across it. However, at trial Jeanne-Anne Adams, a former Speedway
employee of five years, from 2002 to May 2007, testified that she personally
experienced the grate move unexpectedly from underneath her feet while
traversing it. Adams further stated that she had tripped over the grate three to five
times during the tenure of her employment and that the grate would tilt out of the
concrete casing if too much weight was unevenly distributed to one side.
{¶39} Alternatively, Betty also argues that Tomsett and Mohre’s testimony
was essential to impeach the testimony of Kimberly Hughes, the Cridersville
Speedway Manager at the time of Betty’s fall. Hughes testified that she did not
know of any problems with the grate and had received no complaints concerning
the unsafe condition of the grate. Additionally, Betty maintains that the proffered
testimony of Tomsett and Mohre was essential to impeach Goodwin’s testimony
that the grate was stable.
{¶40} However, we are not persuaded by Betty’s assertions. Nearly every
witness who testified on behalf of Betty at trial made statements which impeached
both Hughes and Goodwin on these points. This testimony included that of former
Speedway employees who testified that they personally reported multiple
customer complaints about the grate to Hughes prior to Betty’s fall as well as
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testimony from those employees and Betty’s expert who contradicted Goodwin’s
testimony by stating that they believed that the grate was unsafe and unstable.
{¶41} Furthermore, at the hearing on Speedway’s motion to preclude this
evidence, the trial court stated its doubts on the record about the relevancy of this
evidence to Betty’s case. Specifically, the trial court expressed its “concern” with
the potential prejudice of this evidence by “leaving the Jury with a bad impression
that these people (Speedway) just don’t care.” (Motion Hrg, August 21, 2009, at
132). Thus, even assuming arguendo that the proffered testimony was relevant to
show that Speedway had notice of any safety issues with the grate, it was not an
abuse of discretion for the trial court to conclude that the probative value of the
evidence was substantially outweighed by the danger of undue prejudice or of
confusion of the issues. See Evid.R. 403(A) (providing that evidence, although
relevant, “is not admissible if its probative value is substantially outweighed by
the danger of unfair prejudice, of confusion of the issues, or of misleading the
jury”).
{¶42} In sum, although we conclude that the trial court was in error to rely
upon the subsequent remedial measures provisions of Evid.R. 407 to exclude this
evidence, we find that the error was not prejudicial to Betty because the proffered
testimony was not relevant to demonstrate to the jury the condition of the grate at
the time of Betty’s fall. In the alternative, even if the proffered testimony had been
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relevant, it was, at best, cumulative given the other testimony elicited at trial and
thus, its probative value was substantially outweighed by its prejudicial effect.
Further, we note that “[u]nless an error in the exclusion of evidence has affected a
party’s substantial rights, such error will be deemed harmless.” Kelley v. Carins &
Bros., Inc. (1993), 89 Ohio App.3d 598, 611, 626 N.E.2d 986. Accordingly, we
cannot find that the trial court’s exclusion of Tomsett’s and Mohre’s testimony
affected Betty’s substantial rights and as such we find any error in the trial court’s
rationale for excluding such evidence to be harmless. Therefore, Betty’s first
assignment of error is overruled.
The Fourth Assignment of Error
{¶43} In her fourth assignment of error, Betty asserts that the trial court
erred when it allowed Speedway to introduce evidence demonstrating her
“propensity to fall.” Specifically, Betty claims that the trial court permitted
Speedway to improperly introduce evidence of an episode in 2002—five years
prior to the incident at issue—wherein Betty fell at her daughter’s house and broke
her right hip. Betty argues that Speedway repeatedly questioned her and other
witnesses about her 2002 injury in a manner which insinuated that Betty had
tripped, causing her to fall. In addition, Betty maintains that the trial court
improperly allowed Speedway to question Betty and Julie about the two holding
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hands immediately prior to Betty’s fall and inferring that it was common practice
for others to give Betty additional assistance when walking.
{¶44} At a pre-trial hearing, the parties argued the admissibility of the
evidence related to Betty’s fall in 2002. Betty’s counsel intended to introduce the
deposition of Dr. Hartman, the physician who performed Betty’s 2002 hip surgery
wherein he placed a prosthesis in Betty’s right hip as a result of the injuries she
sustained from the fall at her daughter’s home. Dr. Hartman also treated Betty for
the injuries she sustained after the 2007 fall at Speedway. The trial court
cautioned Betty’s counsel that Speedway would be permitted to discuss any issue
related to the 2002 incident that Betty’s counsel placed at issue on direct
examination in the deposition.
{¶45} In deposing Dr. Hartman, Betty’s counsel asked Dr. Hartman
whether the incident at Speedway had an aggravating effect on Betty’s right hip—
specifically whether this latest fall had reduced the projected longevity of the
prosthesis placed in Betty’s right hip in 2002. In response, Dr. Hartman testified
to several casual factors relating to an increased amount of problems that Betty
suffered with her right hip prosthesis as a result of her fall in this case. Further,
Betty’s counsel asked the jury for damages based on the aggravation of her prior
injury that Betty’s fall at Speedway caused to her right hip. Thus, Betty’s 2002
fall was placed at issue by Betty’s counsel and therefore, this evidence was not
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solely elicited by Speedway to infer that Betty had a propensity to fall. Thus, we
cannot find that the trial court abused its discretion by allowing Speedway to
inquire at trial about Betty’s 2002 fall.
{¶46} Betty also maintains that the trial court improperly permitted
Speedway to question Betty and other witnesses about Julie and Betty holding
hands immediately prior to Betty’s fall. Betty argues that on cross-examination,
Speedway repeatedly used the hand holding as an attempt to depict Betty as an old
lady in need of support who also possessed a propensity to fall. However, when
questioned on this issue, Betty testified to the contrary by stating that she and Julie
hold hands as a sign of affection. This sentiment was corroborated by other
witnesses who testified that prior to her fall at Speedway, Betty was an extremely
active and able-bodied 80 year old and that anytime a family member held her
hand it was purely out of affection rather than support.
{¶47} In reviewing the record, it is clear that the video surveillance
footage—which was stipulated to by the parties and submitted as a joint exhibit—
formed the basis for Speedway’s line of questioning on this issue. In this footage,
Betty and Julie are holding hands as they walk from the parked car to the
convenience store. Notably, the footage depicts Julie and Betty holding hands up
until the point where they approach the curb. At this moment, Julie releases
Betty’s hand to move ahead of Betty in order to open the door for her. Thus, any
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inference that Betty needed support is clearly rebutted by the footage itself which
demonstrates that Julie was not concerned about her mother’s ability to traverse
the three inch curb. Moreover, this surveillance footage was replayed
repeatedly—frame by frame—throughout trial and thoroughly analyzed in front of
the jury by both parties’ experts. For all these reasons, Betty’s fourth assignment
of error is overruled.
The Third Assignment of Error
{¶48} In her third assignment of error, Betty contends that the trial court’s
instructions to the jury were improper. Specifically, Betty maintains that the trial
court erred when it included an instruction on the doctrine of open and obvious
dangers and subsequently failed to give Betty’s requested instruction on
constructive notice to the jury.
{¶49} In general, requested instructions should be given if they are correct
statements of the law applicable to the facts in the case and reasonable minds
might reach the conclusion sought by the instruction. Murphy v. Carrollton Mfg.
Co. (1991), 61 Ohio St.3d 585, 591, 575 N.E.2d 828. “In reviewing a record to
ascertain the presence of sufficient evidence to support the giving of a[n] * * *
instruction, an appellate court should determine whether the record contains
evidence from which reasonable minds might reach the conclusion sought by the
instruction.” Id., citing Feterle v. Huettner (1971), 28 Ohio St.2d 54, 57 O.O.2d
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213, 275 N.E.2d 340, at syllabus. In reviewing the sufficiency of jury instructions
given by a trial court, the proper standard of review for an appellate court is
whether the trial court’s refusal to give a requested jury instruction constituted an
abuse of discretion under the facts and circumstances of the case. State v. Wolons
(1989), 44 Ohio St.3d 64, 68, 541 N.E.2d 443. The term “abuse of discretion”
implies that the court's attitude is unreasonable, arbitrary, or unconscionable.
Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 5 OBR 481, 450 N.E.2d
1140.
Open and Obvious Dangers
{¶50} Betty maintains that the trial court’s instruction on open and obvious
dangers was prejudicial to her case. In support of this assertion, Betty argues that
the trial court’s instruction improperly placed the burden on her to produce
evidence that the grate was not an open and obvious danger. Below are the
excerpted jury instructions with which Betty takes issue.
An owner of property owes no duty to protect invitees who
remain on the property from open and obvious dangers on the
property. The open and obvious nature of the danger itself
serves as a warning to the invitees. Invitees are expected to
discover those dangers and to protect themselves.
***
Before you can find for the plaintiff, the plaintiff must
prove by the greater weight of the evidence that she was injured
on the premises of defendant and that her injuries were
proximately caused by a an unsafe condition of the premises
which was not open and obvious to an ordinary person caused
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by the failure of the defendant, to use ordinary care; or, if the
condition was not so created, that the condition was known to
the defendant, and the defendant failed to use ordinary care to
correct it or to provide notice of the condition.
{¶51} The Supreme Court of Ohio summarized the case law on the open
and obvious doctrine in the following manner:
Where a danger is open and obvious, a landowner owes no duty
of care to individuals lawfully on the premises. [T]he owner or
occupier may reasonably expect that persons entering the
premises will discover those dangers and take appropriate
measures to protect themselves. Thus, when a plaintiff is
injured by an open and obvious danger, summary judgment is
generally appropriate because the duty of care necessary to
establish negligence does not exist as a matter of law.
Lang v. Holly Hill Motel, Inc., 122 Ohio St.3d 120, 123, 2009-Ohio-2495, 909
N.E.2d 120.
{¶52} We further note, that the trial court’s instruction to the jury on open
and obvious dangers was given in a greater context than the excerpt above relied
upon by Betty, and included the following:
An owner of property owes no duty to protect invitees
who remain on the property from open and obvious dangers on
the property. The open and obvious nature of the danger itself
serves as a warning to the invitees. Invitees are expected to
discover those dangers and to protect themselves. However,
there may by [sic] “attendant circumstances” which limit the
open and obvious nature of the danger.
“Attendant circumstances” are factors beyond the control
of the plaintiff that contribute to proximately cause the
plaintiff’s injury. The phrase “attendant circumstances” refers
to all the facts relating to the event causing the injury, such as
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time and place, surroundings or background of the event and
any condition normally existing that would reasonably increase
the normal risk of a harmful result from the event.
If you find that attendant circumstances are present, then
the open and obvious nature of the danger does not eliminate the
duty of the owner to exercise ordinary care to keep the premises
in a reasonably safe condition or provide notice of any dangers
which the owner has knowledge.
Before you can find for the plaintiff, the plaintiff must
prove by the greater weight of the evidence that she was injured
on the premises of defendant and that her injuries were
proximately caused by a an unsafe condition of the premises
which was not open and obvious to an ordinary person caused
by the failure of the defendant, to use ordinary care; or, if the
condition was not so created, that the condition was known to
the defendant, and the defendant failed to use ordinary care to
correct it or to provide notice of the condition.
The defendant claims that the plaintiff was negligent. To
sustain such claim defendant must prove by the greater weight
of the evidence, that plaintiff failed to use that care for her own
safety which a reasonably cautious person would use under the
same or similar circumstances.
In deciding whether ordinary care was used, you will
consider whether either party ought to have foreseen under the
circumstances that the natural and probable result of an act or
failure to act would cause some injury.
The test for foreseeability is not whether they should have
foreseen the injury precisely as it happened to the specific
person. The test is whether under all the circumstances a
reasonably cautious person would have anticipated that injury
was likely to result to someone from the act or failure to act.
If either party, by the use of ordinary care, should have
foreseen some injury and should not have acted, or if they did
act, should have taken precautions to avoid the result, then the
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performance of the act or the failure to take such precautions is
negligence.
{¶53} After reviewing the complete context of the trial court’s instructions
on the relevant issue of overall negligence and within the framework of the
relevant case law, we cannot find that the trial court erred in instructing the jury as
it did. Further, when viewed in complete context as to the duty of care, we find
that the trial court’s instructions on open and obvious dangers were substantially
consistent with the relevant case law as stated by the Supreme Court of Ohio.
{¶54} Thus, based on the above, the trial court’s instruction reflected the
correct statement of law and the evidence at trial supported the trial court’s
decision to give the instruction. Therefore, we cannot say the trial court abused its
discretion in giving the jury the instruction it did on open and obvious dangers.
Constructive Notice
{¶55} Betty also contends that the trial court erred when it refused to
instruct the jury on constructive notice as stated in her proposed jury instructions.
Instead, the court provided the following instruction:
A business owes a duty to a customer or business invitee to use
ordinary care for the care for the customer’s safety, to keep the
premises in a reasonably safe condition, and to use ordinary care
to provide notice of any concealed dangers of which the store has
knowledge or which in the exercise of ordinary care should have
discovered. You are instructed that Betty Warkoczeski was a
customer or business invitee of Speedway SuperAmerica, LLC.
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{¶56} Initially we note that Betty fails to cite any authority supporting her
assertion that the trial court’s instruction is erroneous. However, after reviewing
the relevant case law it is apparent that the trial court’s instruction incorporated the
correct statement of the law.4
{¶57} Based on the foregoing, the trial court did not abuse its discretion
when it instructed the jury on open and obvious dangers and when it refused to
include Betty’s proposed jury instructions on constructive notice. As such, Betty’s
third assignment of error is overruled.
{¶58} For all the reasons stated above, the judgment of the Auglaize
County Court of Common Pleas is affirmed.
Judgment Affirmed
ROGERS and PRESTON, J.J., concur.
/jlr
4
A business owner owes business invitees a duty of ordinary care, which includes the duty to
maintain the premises in a reasonably safe condition and to warn an invitee of latent or concealed defects of
which the owner has or should have knowledge. Perry v. Eastgreen Realty Co. (1978), 53 Ohio St.2d 51,
52-53, 7 O.O.3d 130, 130-131, 372 N.E.2d 335, 336; Kubiszak v. Rini's Supermarket (1991), 77 Ohio
App.3d 679, 686, 603 N.E.2d 308, 313.
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