The opinion
Koehler, Judge,
dissenting.
In this cause, the majority affirms the trial court’s abrogation of appellants’ right to a jury trial, a right which, by the Constitution of the state of Ohio and the Civil Rules, is declared to be inviolate.
Civ.R. 50 varies from traditional Ohio practice only in slight detail (see Staff Note). However, Ohio differs from other jurisdictions in that it allows a directed verdict before any evidence is adduced. Compare Ohio Civ.R. 50(A) and Fed.R.Civ.P. 50(a). Directing a verdict for one party at the close of opposing counsel’s opening statement is a permissible procedural technique to promote judicial economy and to terminate unnecessary litigation. Nevertheless, as the majority observes, in doing so the trial court should exercise great caution. Appellants’ right to a fair trial is paramount.
In modern practice, the defending party has many opportunities to attack the viability of the asserted cause of action in a motion to dismiss or a motion for summary judgment. To withdraw the case from the jury because of the insufficiency of counsel’s opening statement I believe is error. Even though in this cause the facts could and should have been presented with more exactitude and the statement might have been, more direct and explicit, the cause of action asserted was readily perceived even by the majority and the opposing party was not prejudiced in any manner.
For reasons which follow, I believe the trial court abused its discretion and that the judgment entered was contrary to law.
Initially and most important, my review of the record in this cause and of the majority opinion reveals that neither the trial court nor this court gave any consideration to the pleadings. Appellants’ first amended complaint appears wholly sufficient to support the two causes of action.. Whether my evaluation of the complaint is proper does not matter. The failure of the trial court to consider the pleadings in ruling on the motion for directed verdict on opening statement constitutes error and requires the judgment below to be reversed and the cause remanded.
*166
The majority cites the most recent Supreme Court decision on the issue before us for the proposition that directed verdicts on opening statements of counsel will be upheld when appropriate,
Mitchell v. Cleveland Elec. Illum. Co., supra.
Although Justice Wright did not specifically address the issue in his opinion, he clearly indicates that the opening statement and the complaint must be considered in the determination of a justifiable cause. See, also,
Archer v. Port Clinton
(1966), 6 Ohio St.2d 74, 76 , 35 O.O.2d 88, 90 , 215 N.E.2d 707, 709 (a motion for directed verdict after the opening statement “raises a question of law on the facts presented by that statement and the petition, all of which must be conceded”). Accordingly, I believe that this error should be raised
sua sponte
and the parties should be required to brief and argue the issue. See 89 Ohio Jurisprudence 3d (1989) 268, Trial, Section 222, and the authorities cited therein.
Second, the majority, in its analysis of the opening statement, concludes that the “evidence” presented fails to support the cause of action for negligence. I disagree with this conclusion. Even if the pleadings were not to be considered, I believe the opening statement, construed most favorably to appellants, would allow reasonable minds to anticipate that appellants would introduce evidence to support a negligence action.
Third, in my view, the trial court’s final judgment entry fails to comply with the mandatory language of Civ.R. 50(E). It affords neither counsel below nor this court with the basis for the court’s ruling. The majority finds the judgment entry in this cause to be “minimally sufficient” to meet the requirements of Civ.R. 50(E). Had the same standard of review been applied to the opening statement, it too would have been minimally sufficient to withstand a motion for directed verdict.
Finally, the trial court afforded appellants’ counsel no opportunity to amend or modify his opening statement and the rules provide no basis for further inquiry of the court’s rationale. In this circumstance, I find no authority set forth for the proposition which the majority relies upon — if not raised or requested, the remedy is waived. To the contrary, because counsel may inadvertently overlook some important facts that the plaintiff will have the burden of establishing, “ ‘he should be given a full and fair opportunity to explain and qualify his statement and make such additions thereto as, in his opinion, the proofs at his command will establish.’ ”
Crowe v. Hoffman, supra,
13 Ohio App.3d at 256, 13 OBR at 319, 468 N.E.2d at 1122, quoting
Cornell v. Morrison
(1912), 87 Ohio St. 215 , 222-223, 100 N.E. 817 , 819.
Since I would raise the principal and controlling issue
sua sponte
and find the assigned error to have merit, I dissent.