# Perkins v. Ohio Department of Transportation

> Ohio Court of Appeals · December 5, 1989 · 65 Ohio App. 3d 487

URL: https://www.frixlaw.com/law-library/cases/3683457

## Case

- **Full name:** PERKINS, Admx., Appellant, v. OHIO DEPARTMENT OF TRANSPORTATION, Appellee; UTTER, Admx., Appellant, v. OHIO DEPARTMENT OF TRANSPORTATION, Appellee
- **Court:** Ohio Court of Appeals
- **Decided:** December 5, 1989
- **Citations:** 65 Ohio App. 3d 487; 584 N.E.2d 794; 1989 Ohio App. LEXIS 4513
- **Precedential status:** Published
- **Opinion:** Dissent by Bryant
- **Judges:** Strausbaugh, Martin, Bryant, County, Pleas
- **Cited by:** 48 later opinions in the Frix Law Library

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## Opinion text

Peggy Bryant, Judge,
dissenting.
Being unable to agree with the majority, I must respectfully dissent. Initially, I cannot agree with the majority’s discussion of proximate cause. The trial court’s decision mentioned proximate cause only in the following paragraph:
“The court concludes that ODOT’s placement of the signs, with an unobstructed view to the reasonable driver exercising ordinary care, met or exceeded its duty to make the highways reasonably safe. The court is of the opinion that the proximate cause of the accident was Weinandy’s inattentiveness and not any lack of due care on the part of defendant.”
In so doing, the trial court seems to indicate that, because defendant “met or exceeded it’s [sic] duty,” defendant’s actions could not have been the proximate cause of the accident. In other words, the trial court based its proximate cause determination on an assumption that defendant was not negligent. Given the majority’s finding that defendant was negligent
per se,
the basis for the trial court’s proximate cause determination is removed. Consequently, I would sustain plaintiffs’ second assignment of error to the extent that I would remand for a determination of whether defendant’s negligence was a proximate cause of plaintiffs’ injuries.
My second disagreement with the majority opinion is on the motion
in limine
issue. The trial court granted defendant’s motion because two of plaintiffs’ expert witnesses were not made available for deposition until a few days before trial. Pursuant to Civ.R. 37(B)(2)(b), a trial court may impose the sanction of prohibiting a party from introducing evidence if the party has violated a discovery order or if the party’s conduct fell within the categories enumerated in Civ.R. 37(D).
Dafco, Inc. v. Reynolds
(1983), 9 Ohio App.3d 4, 5 , 9 OBR 4, 5, 457 N.E.2d 916, 917 . In the present case, the record does not reveal that plaintiffs violated a discovery order by not making the witnesses available. Moreover, unlike the party in
Jones v. Murphy
(1984), 12 Ohio St.3d 84 , 12 OBR 73, 465 N.E.2d 444 , cited by the majority, plaintiffs’ conduct did not fall under Civ.R. 37(D). Consequently, I find no basis for excluding the expert witnesses’ testimony.
While I do not condone the disclosure of additional witnesses only days before trial, nothing in the record suggests that plaintiffs acted in bad faith in the timing of their disclosures or that defendant was prejudiced by the presentation of unanticipated theories of evidence. To the extent defendant
*503
contends it lacked sufficient opportunity to discover the substance of those witnesses’ proposed testimony, less severe means exist to meet defendant’s concerns without entirely eliminating the witnesses’ testimony. I would therefore sustain plaintiffs’ third assignment of error.
Finally, as to plaintiffs’ argument that the trial court erred in refusing to allow witness Yordy to testify as to proximate cause, I concur with the majority on the basis that the record does not indicate that the trial court sustained defendant’s objection to Yordy’s testimony.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3683457. Public record. Not legal advice.