IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Audrey Eller,
:
Plaintiff-Appellant,
:
No. 99AP-1273
v.
:
(REGULAR CALENDAR)
Wendy’s International, Inc.,
:
Defendant-Appellee.
:
O P I N I O N
Rendered on September 29, 2000
Michael Garth Moore, for appellant.
Mazanec, Raskin & Ryder Co., L.P.A., and Edwin J. Hollern,
for appellee.
APPEAL from the Franklin County Court of Common Ple as.
PETREE, J.
Plaintiff, Audrey Eller, appeals from a judgment o f the Franklin County Court
of Common Pleas in favor of defendant, Wendy’s Inte rnational, Inc. On appeal, plaintiff
advances six assignments of error for this court’s review:
[1.] The trial court erred in not granting a motion for a mistrial
after counsel for defendant-appellee had injected i mproper
references to Mrs. Eller’s past and pending litigat ion in his
opening statement and in examination of Mrs. Eller.
No. 99AP-1273
2
[2.] The trial court erred in allowing counsel for defendant-
appellant [sic] to examine Dr. Murphy on the alleged claim
that she suffers from “compensation neurosis.”
[3.] The trial court erred in excluding the testimo ny of Gerald
Burko.
[4.] The trial judge’s conduct elicited passion and prejudice
against Mrs. Eller among the jurors.
[5.] The trial court erred in refusing to charge th e jury on the
issue of future impaired earning capacity.
[6.] The trial court erred in submitting to the jur y the issue of
comparative negligence.
In November 1996, plaintiff, a California resident , was in Columbus
attending to personal business. While in Columbus, plaintiff stayed at the home of her
seven-year-old grandson, David, and his mother, pla intiff’s former daughter-in-law, Diane
Caplinger. At approximately 12:30 p.m. on November 24, 1996, plaintiff, David, and Ms.
Caplinger entered a Wendy’s restaurant located at 1 920 Stringtown Road in Grove City.
Because the restaurant was somewhat crowded, plaint iff and David sat at a table while
Ms. Caplinger waited in line to order lunch. While waiting for the food to arrive, plaintiff
decided to take David to get some napkins. As plai ntiff and David walked toward the
condiment stand, plaintiff stepped from a carpeted area of the floor onto a portion of the
floor covered by ceramic tile. After walking appro ximately two or three steps on the tiled
area, plaintiff slipped and fell on her right knee.
Immediately after she fell, plaintiff felt
discomfort in her right knee. Ms. Caplinger saw pl aintiff fall and walked over to assist her.
Another customer and one of defendant’s employees, John Wilson, helped plaintiff to her
feet.
No. 99AP-1273
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Plaintiff testified that she did not observe any f oreign substance (water,
grease, soda, food, etc.) on the tiled area prior t o her fall. Plaintiff further testified that she
did not notice anyone mopping the floor prior to th e fall, nor did she see any “caution”
signs indicating that the floor was wet or otherwis e hazardous. Plaintiff further testified
that she had “no idea” how she fell, but described the fall as “just like hitting a skating rink.
It was just very, very slippery. There was somethi ng very slippery that made me fall.”
(Tr. 538.)
A few minutes after the fall, plaintiff noticed Mr . Wilson and another of
defendant’s employees looking, alternately, from he r to the area of the floor where she
had fallen. After a short discussion, the two men walked away and disappeared through
a door in the back of the restaurant. Plaintiff an d David then sat down at the table and
waited for Ms. Caplinger to return with the food.
A few minutes later, Mr. Wilson
approached plaintiff’s table and asked if she was a ll right. He told plaintiff that a little boy
had also fallen in the same area, but did not indic ate whether the fall had occurred on the
same day. No employee other than Mr. Wilson spoke to plaintiff that day. Plaintiff
testified that she did not seek out a manager to re port the incident because she knew that
Mr. Wilson was aware of what had happened.
After finishing lunch, plaintiff, David and Ms. Ca plinger returned to Ms.
Caplinger’s home. Plaintiff testified that for the next few days, her knee was swollen and
painful; however, she did not contact defendant to report the incident. Five days after the
fall, she returned to her home in California. Ove r the next few weeks, her knee continued
to hurt.
Believing that defendant should be respon sible for paying for a medical
consultation with regard to her injured knee, plain tiff called the Stringtown Road
No. 99AP-1273
4
restaurant on December 21, 1996, identified herself , said she had fallen in the restaurant
on November 24, 1996, and asked permission to send the bill to defendant. According to
plaintiff, the manager with whom plaintiff spoke, S cott Hood, told plaintiff that “[w]e must
have been washing the floor. The cones were up. We have no liability.” (Tr. 566.) When
she asked him what he meant by the word “cones,” he hung up.
Having not received a satisfactory response from M r. Hood, plaintiff called
defendant’s corporate headquarters on December 31, 1996, and spoke to a claims
representative. Plaintiff again explained her situ ation and requested that defendant pay
for a medical consultation. The claims representat ive told plaintiff that she would hear
from someone within ten days. Before the expiratio n of the ten-day period, however,
plaintiff decided that she could not wait any longe r to see a physician. Accordingly, she
made an appointment with an orthopedic specialist.
According to plaintiff, no one
representing defendant ever called her back.
Plaintiff’s initial consultation with the orthopedic specialist, Dr. David G.
Smith, was on January 13, 1997. Dr. Smith ordered an MRI and prescribed pain
medication and physical therapy. Plaintiff continu ed the pain medication and physical
therapy until May 1997, at which time she underwent arthroscopic surgery on her right
knee. Due to complications from the surgery, she w as hospitalized in June 1997. After
her release from the hospital, she again underwent physical therapy. On July 27, 1997,
her knee buckled as she walked into her kitchen. S he fell to the floor, hitting both knees
and left shoulder. As a result of the fall, plaint iff suffered a rotator cuff tear of her left
shoulder.
No. 99AP-1273
5
Ms. Caplinger testified that she observed plainti ff slip and fall down on her
knee as plaintiff walked across the tiled portion o f defendant’s dining room floor. She
further testified that she did not notice anything visible on the floor that would have
caused her to believe that the floor might be slipp ery. In an effort to determine what
precipitated plaintiff’s fall, Ms. Caplinger touche d the floor with her fingers a few inches to
the right of where plaintiff had fallen. Ms. Capli nger described the floor as feeling “slimy”
(Tr. 867) and “greasy” (Tr. 868) “like if you fry s omething on the stove and you clean it up,
and you wipe it down, and you wipe your fingers on it, you can feel the grease on it.” (Tr.
868-869.) She further testified that a large area o f the floor was in this condition. Ms.
Caplinger also stated that she noticed a “skid mark ” in the area where plaintiff had fallen,
“[l]ike a tennis shoe dragged through it.” (Tr. 86 9.) After plaintiff got to her feet, Ms.
Caplinger helped her walk to the table. Shortly th ereafter, Mr. Wilson approached the
table and asked if plaintiff was all right. Ms. C aplinger told Mr. Wilson that the floor was
slippery. Mr. Wilson told the two women that someo ne else had fallen there; however, he
did not indicate whether the fall to which he refer red had occurred the same day.
Scott Hood was the manager of the Stringtown Road
restaurant on
November 24, 1996. Mr. Hood testified that as ma nager of the restaurant, he received
training in the maintenance of the restaurant premi ses. As part of his management
training, he received a copy of defendant’s “Operat ional Procedures Manual”
(“procedures manual”) and a videotape on proper flo or cleaning. As manager of the
restaurant, Mr. Hood is responsible for training em ployees in proper floor cleaning
procedures. Mr. Hood further testified that a man ager is supposed to walk through the
No. 99AP-1273
6
dining room every fifteen minutes to ensure that th e restaurant is free from potential
hazards.
Mr. Hood further testified that, according to defe ndant’s floor cleaning
procedures, any employee who observes a foreign sub stance on the floor is permitted to
clean it up; whether the employee sweeps or mops th e substance is left to the discretion
of that employee. Mr. Hood acknowledged that subst ances such as water, oil or grease
tracked in from outside on customers’ shoes would t ypically be caught on the carpeted
area inside the entrance to the restaurant and, if not caught, would be visible on the floor.
Mr. Hood testified that the floor cleaning instruc tions outlined in the
procedures manual require the positioning of “Cauti on: Wet Floor” signs in the event the
tile in the dining room is “dry-mopped” during busi ness hours.
Mr. Hood further
acknowledged that the instructions regarding the po sting of the “Caution: Wet Floor” signs
is outlined in red in the manual, indicating that s uch procedure must be followed strictly in
order to minimize the risk of someone being injured .
Mr. Hood explained that spills occurring during bu siness hours are “dry-
mopped,” a procedure involving dipping the mop into a bucket of clean water, wringing
the mop out until it is almost dry, then using the “dry” mop to clean the floor. No grease-
cutting agent is used as part of the “dry-mopping” procedure. Mr. Hood acknowledged
that if oil spilled on the floor was not “dry-moppe d” properly, some of the oil might be left
on the floor after the spill, which, in turn, could leave a slippery surface; however, he
testified that he had never encountered such a sit uation during his tenure as manager of
the restaurant.
No. 99AP-1273
7
Mr. Hood further testified that the December 21, 1 996 telephone
conversation with plaintiff was his first notificat ion that she had fallen in the restaurant. He
further testified that he remembered telling her th at the “cones” were up. Finally, Mr.
Hood admitted that he did not report the telephone call to either his supervisor or
defendant’s customer injury “hot line.”
John Wilson testified that he worked as the dining room attendant in the
Stringtown Road restaurant on November 24, 1996. M r. Wilson testified that after
another employee mopped up a soft drink spill from the tiled area of the floor, he went to
retrieve a “wet floor” sign. When he returned with the sign, he noticed a dark-haired
Korean woman “down on the floor” in the area that h ad just been mopped. He asked the
woman if she was all right. Thereafter, Mr. Wilson told his manager that the woman had
slipped and fallen. The manager told Mr. Wilson th at he would handle the situation. Mr.
Wilson did not specify as to when the incident he d escribed had occurred; however, he
indicated that he had seen only one woman fall at t he Stringtown Road restaurant in the
time he worked there.
Videotaped depositions of Dr. Paul C. Murphy, plai ntiff’s orthopedic
surgeon, and Robert Quintas, plaintiff’s physical therapist, were played for the jury,
wherein both testified as to the medical treatment rendered plaintiff subsequent to
November 24, 1996. In short, each of these medical professionals opined on direct
examination that the medical treatment rendered pla intiff was directly attributable to a
traumatic injury to her knee such as that suffered by plaintiff in her November 24, 1996
fall in defendant’s restaurant. On cross-examina tion, both admitted, however, that their
opinions were based solely on information received from plaintiff regarding that fall.
No. 99AP-1273
8
The parties stipulated that plaintiff incurred rea sonable and necessary
medical expenses in the treatment of her right knee and left shoulder totaling $41,372.81.
The stipulation did not, however, include an admiss ion by defendant that the medical
expenses incurred were proximately caused by plaint iff’s fall on defendant’s premises.
At the conclusion of trial, the jury returned a ve rdict for defendant,
answering “No” to Interrogatory No. 1: “Do you fin d from the greater weight of the
evidence that Plaintiff’s injury was caused by an u nsafe condition that existed on
Defendant Wendy’s International, Inc.’s premises?”
The trial court’s judgment entry
incorporating the jury’s verdict and awarding judgm ent in favor of defendant was filed
September 1, 1999.
Plaintiff filed a motion for new trial pursuant to Civ.R. 59 on September 13,
1999. The trial court overruled the motion by entr y dated October 13, 1999. Plaintiff filed
her timely notice of appeal on November 9, 1999.
By her first assignment of error, plaintiff conten ds that the trial court erred in
failing to grant a mistrial after defense counsel i mproperly referenced plaintiff’s past and
pending litigation during opening statement and on cross-examination of plaintiff.
Prior to trial, plaintiff filed a motion in limine seeking exclusion of, inter alia,
any reference to prior injuries sustained by plaint iff in a slip and fall incident that occurred
in 1989.
Plaintiff asserted that evidence of plain tiff’s prior injuries could only be
introduced if expert testimony causally connected the prior injuries with those in the
instant action. Plaintiff further sought to preclu de any reference to a lawsuit plaintiff filed
as a result of the prior slip and fall incident. Pl aintiff sought exclusion of the litigation
evidence under Evid.R. 404(B).
No. 99AP-1273
9
Defendant filed a memorandum in opposition, arguin g that evidence of
plaintiff’s prior injuries that could be causally c onnected to her current claims was relevant
under Evid.R. 401 and should not be excluded. Def endant further argued that Evid.R.
404(B) was not controlling because defendant intend ed to introduce evidence of plaintiff’s
prior injuries “solely for the purposes of establis hing a causal connection to Plaintiffs’
claims in the current matter, and not for the purpo se of impugning Mrs. Eller’s character.”
Defendant, however, did not specifically address th e issue of the prior litigation.
By written decision, the trial court found, pursua nt to Evid.R. 401, that
evidence demonstrating that plaintiff sustained pri or injuries similar to those alleged in the
instant action was relevant. Accordingly, the tria l court found plaintiff’s argument seeking
preclusion of all evidence relating to any previous injuries or claims to be premature.
Noting that both parties generally agreed that evid ence of plaintiff’s previous knee injury
was relevant, the trial court determined that evide nce of any additional prior injuries or
claims would have to be evaluated at the time of tr ial to determine relevancy.
Accordingly, the court found that it would be impro per to rule unconditionally that no
evidence of plaintiff’s previous injuries or claims should be admitted when the court had
not had the opportunity to evaluate the evidence.
During opening statement, plaintiff’s counsel referred to the procedures
outlined in defendant’s procedures manual regarding the reporting of customer injuries
and, specifically, to the fact that despite being a ware of plaintiff’s fall, no one employed by
defendant followed the procedures as outlined, i.e., filled out an accident claim report or
made plaintiff aware that she could initiate a clai m. Counsel also averred several times
No. 99AP-1273
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that plaintiff called defendant asking permission t o seek medical attention and to send the
bill for any medical services rendered to defendant .
In his opening statement, defense counsel referred to the fact that plaintiff
did not schedule an appointment with a physician un til January 13, 1997, some six weeks
after the fall in defendant’s restaurant. Immediat ely thereafter, defense counsel averred
that “she [plaintiff] is not a stranger to litigati on.”
(Tr. II, 374.) Plaintiff’s counsel
immediately objected and asked to approach the benc h. The court called a sidebar, at
which time plaintiff’s counsel argued that the cour t’s prior ruling on plaintiff’s motion in
limine proscribed any reference to plaintiff’s prior liti gation history, as such evidence was
irrelevant. Plaintiff’s counsel maintained that de fense counsel’s statement was prejudicial
and requested that the court instruct the jury to d isregard defense counsel’s last comment
and instruct defense counsel not to refer to the 19 89 litigation.
In response, defense counsel argued that the court had previously ruled
that evidence of the prior lawsuit was relevant to the instant action because plaintiff’s
claim that she injured her right knee in the instan t action was the identical claim she made
in the previous lawsuit. Plaintiff’s counsel argue d that the trial court ruled only that
medical evidence of plaintiff’s prior injury was ad missible, not her litigation history.
Plaintiff’s counsel further argued that the only re ason for informing the jury of the previous
lawsuit was to demonstrate that plaintiff was a “co mpulsive litigator.” (Tr. 375.) Plaintiff’s
counsel thereafter requested that the court declare a mistrial.
After further discussion between the court and cou nsel for both parties, the
court indicated that it did not remember considerin g or ruling on the issue in the motion in
limine. Thereafter, defense counsel offered a general explanation of the prior case,
No. 99AP-1273
11
stating “she fell down in ‘89. She sued in ’90, sa me complaint. She argued in 1991. She
got an award. She settled the case. That is exact ly the same thing she has done here.
She waited two months after she had treatment.” (Tr . 378.)
Plaintiff’s counsel argued that defense counsel’s statement about the 1989
litigation inferred that plaintiff’s case was fraud ulent and that there was no evidence to
support such an inference. In response, defense c ounsel then cited Evid.R. 405 and
argued that proof of specific instances of plaintif f’s conduct, i.e., filing the previous lawsuit,
could be made in cases in which character or a trai t of character is an essential element
of a defense. In arguing Evid.R. 405, defense coun sel stated that “her [plaintiff’s]
character is to file this lawsuit. She is a litigi ous person.” (Tr. 379.)
After this colloquy, the trial court informed the jury that the court was going
to recess for the evening in order for counsel and the court to discuss a statement made
by defense counsel in opening statement. Thereafte r, the court instructed the jury that
statements made by counsel in opening statement do not constitute evidence.
After conferring the next morning in chambers with counsel for both parties,
the trial court acknowledged that courts generally find reference to an opposing party’s
previous litigation history to be more prejudicial than probative; however, the court
overruled plaintiff’s objection to defense counsel’ s reference to plaintiff’s prior lawsuit.
The court, referring to plaintiff’s counsel’s openi ng statement, stated:
*** I got it from the tenure [ sic] was that *** Ms. Eller didn’t talk
to Wendy’s because she was not sure she hurt this k nee ***
five days later she did call and they hung up the p hone on
her. She just was lost about what to do with this injury that
she had. In opening statement there was a picture that she
was pretty much put upon by Wendy’s and didn’t real ly know
what to do.
No. 99AP-1273
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***
She had had the knee injured and did go to the doct or. She
did file a lawsuit and so she had previous experien ce with the
situation.” [Tr. III, 385-386.]
Plaintiff’s counsel suggested that if the court’s c oncern was with plaintiff’s knowledge or
lack thereof as to how to report an incident to a p remises owner, the defense could
question her about having filed an accident report after the 1989 incident―which she had
done―a course which would have eliminated the impli cation of litigation. The court
rejected plaintiff’s counsel’s suggestion. The cou rt then ruled that defense counsel had
the right to cross-examine plaintiff about her prev ious knee injury and the resultant
litigation.
Plaintiff’s counsel objected to the trial court’s ruling on the basis that any
reference to the previous litigation was prejudicia l because it might mislead the jury into
believing that the plaintiff was a litigious person . Plaintiff’s counsel also requested that
the court issue a limiting instruction. The court denied the request on the basis that the
comment was made in opening statement and, as such, did not constitute evidence. The
court then informed plaintiff’s counsel that he was free to object to any statements made
by defense counsel in opening statement and that, i f necessary, the court would caution
the jury at the appropriate time.
Subsequent to the trial court’s ruling, defense co unsel resumed his opening
statement, during which he referenced plaintiff’s 1 989 slip and fall, the injury to her right
knee and shoulder, the lawsuit she filed and the se ttlement she received. As part of his
opening statement, defense counsel maintained that, based on plaintiff’s prior litigation
No. 99AP-1273
13
experience, she was well aware in 1996 of both the procedure for informing defendant of
her injury and of obtaining a physician.
On direct examination, plaintiff’s counsel questio ned plaintiff about the 1989
slip and fall incident. In that regard, plaintiff testified that she tripped on a sidewalk near
her home in California and fell on her knees and ri ght shoulder. Seven or eight weeks
later, plaintiff sought medical attention for her i njuries. Examination of her knees revealed
no injury; however, she received medical treatment and underwent physical therapy on
her right shoulder. On cross-examination, defense counsel alluded to plaintiff’s previous
lawsuit by inquiring as to whether she received tre atment for her shoulder injury after she
resolved her claim against the defendant in that ca se.
As noted previously, plaintiff argues on appeal th at the trial court erred in
failing to grant plaintiff’s request for a mistrial after defense counsel’s references to
plaintiff’s prior litigation history in opening sta tement and on cross-examination of plaintiff.
More specifically, plaintiff argues that the trial court failed to conduct the requisite analysis
under Evid.R. 404(B), i.e, failed to weigh the probative value of the evidenc e regarding
plaintiff’s prior litigation history against the da nger that plaintiff would be prejudiced by the
admission of such evidence.
Defendant argues that plaintiff’s counsel opened t he door to defense
counsel’s references to the 1989 injury and litigat ion by repeatedly inferring in opening
statement that plaintiff did not understand that sh e could have scheduled an appointment
with a physician without seeking permission to do s o from defendant. Defendant argues
that plaintiff’s counsel’s comments suggested that plaintiff’s naiveté compelled her to look
to defendant for guidance as to how to proceed afte r the incident, including whether or not
No. 99AP-1273
14
to seek medical treatment, and that defendant someh ow shirked its corporate
responsibility to plaintiff by failing to handle pl aintiff’s claim properly. Defendant maintains
that the “not a stranger to litigation” comment was made only to counter plaintiff’s
counsel’s statements and was in no way meant to ass ail plaintiff’s character.
Upon review of the record, we agree with plaintiff that defense counsel’s
references to plaintiff’s prior litigation history were indeed intended as an attack upon
plaintiff’s character.
Although defendant now argu es that the remark in opening
statement was made only to counter the inference th at plaintiff was unsophisticated in
methods of reporting hazardous conditions to premis es owners, defense counsel argued
before the trial court that the comment was proper under Evid.R. 405 (which permits proof
of specific instances of conduct to cases in which character or a trait of character is an
essential element of a defense), and that plaintiff ’s character was that of a litigious
person.
As noted by the court in Outley v. New York (C.A.2 1987), 837 F.2d 587, at
592:
*** The charge of litigiousness is a serious one, l ikely to result
in undue prejudice against the party charged, unles s the
previous claims made by the party are shown to have been
fraudulent. *** As we said in Raysor v. Port Authority , 768
F.2d 34, 40 (2d Cir. 1985), cert. denied, 475 U.S. 1027, 106
S.Ct. 1227, 89 L.Ed.2d 337 (1986), “[a plaintiff’s] litigiousness
may have some slight probative value, but that valu e is
outweighed by the substantial danger of jury bias a gainst the
chronic litigant.
The trial court has a duty to pr event
exploitation of this prejudice ***” (Citation omitt ed.) Although
Raysor dealt with questions asked of a pro se litigant, the
serious impact of a charge of litigiousness, and th e
responsibility of the trial judge to guard against it, remain the
same when the accusation is made in an opening stat ement
or when the party is represented by counsel (citati on omitted),
No. 99AP-1273
15
particularly since counsel’s objection to the state ment was
overruled. ***
Otherwise relevant evidence must be excluded under Evid.R. 403(A) if “its
probative value is substantially outweighed by the danger of unfair prejudice, of confusion
of the issues, or of misleading the jury.” Also r elevant is Evid.R. 404(B), which provides
that:
Evidence of other crimes, wrongs, or acts is not ad missible to
prove the character of a person in order to show th at he acted
in conformity therewith. It may, however, be admis sible for
other purposes, such as proof of motive, opportunit y, intent,
preparation, plan, knowledge, identity, or absence of mistake
or accident.
Had the trial court conducted the requisite analys is under Evid.R. 403(A)
and 404(B), this court would have no choice but to affirm the trial court’s decision absent
an abuse of discretion. A trial court is vested wi th broad discretion when considering the
admission or exclusion of evidence. State v. Allen (1995), 73 Ohio St.3d 626, 633. In the
absence of such an analysis by the trial court, how ever, this court must determine
whether the statements made by defense counsel duri ng opening statement and upon
cross-examination warrant reversal of the action.
As such, we must examine the
particulars of the entire trial and the likelihood that plaintiff suffered genuine prejudice
from defense counsel’s comments. Upon such an exam ination, we find that plaintiff was
not unduly prejudiced thereby.
Initially, we note that the trial court repeatedly cautioned the jurors that
opening statements do not constitute evidence. A j ury is presumed to follow a trial court’s
instructions. Pang v. Minch (1990), 53 Ohio St.3d 186, paragraph four of the sy llabus.
No. 99AP-1273
16
Moreover, we do not believe that a reasonable juror would find plaintiff to be a chronic
litigant solely because she filed a prior lawsuit f or a different injury ten years ago.
Furthermore, upon an assessment of the entirety of the evidence presented
in this case, coupled with the jury’s response to I nterrogatory No. 1, we find it highly
unlikely that plaintiff suffered undue prejudice as a result of defense counsel’s remarks.
To demonstrate “actionable negligence,” plaintif f was required to establish
the existence of a duty of care; a breach of that d uty; and injury proximately resulting from
such breach. Chalfant v. P.W. Motel Management (Mar. 30, 2000), Franklin App. No.
99AP-886, unreported. With respect to the duty of care owed plaintiff by defendant, we
note that it is undisputed that plaintiff was a “bu siness invitee,” i.e., “one rightfully on the
premises of another for purposes in which the posse ssor of the premises had a beneficial
interest.” Id., quoting Bowins v. Euclid General Hosp. (1984), 20 Ohio App.3d 29, 30.
Generally, a business owner owes business invitees a duty of ordinary care
in maintaining the premises in a reasonably safe co ndition so that such invitees are not
unnecessarily and unreasonably exposed to danger. Paschal v. Rite Aid Pharmacy, Inc.
(1985), 18 Ohio St.3d 203. A business owner is not , however, an insurer of an invitees’
safety. Id.
In Guilford v. Central Hardware Co. (1989), 62 Ohio App.3d 58, this court
noted the distinction between hazardous conditions created by the business owner and
those created by the acts of third parties. Where a plaintiff’s injury is due to a hazardous
condition not created by the business owner, the pl aintiff is required to demonstrate that
the owner had, or in the exercise of ordinary care should have had, notice of the hazard
for a sufficient time to enable the owner to remove it or warn customers about it. Presley
No. 99AP-1273
17
v. Norwood (1973), 36 Ohio St.2d 29, 31. To support an infer ence that a business owner
had constructive notice of a hazardous condition, t here must be evidence of the length of
time the hazard existed. Id. at 32. In contrast, when an owner creates the haza rdous
condition, a plaintiff is not required to demonstra te specifically that the owner had
knowledge or notice of such hazard. Dent v. General Mills Restaurants, Inc. (Sept. 16,
1997), Franklin App. No. 97APE05-606, unreported.
As noted previously, a business
owner owes business invitees a duty of ordinary car e in maintaining the premises in a
reasonably safe condition. In general, reasonable care includes the duty to warn patrons
of a dangerous condition known to the owner. Jackson v. Kings Island (1979), 58 Ohio
St.2d 357, 359.
Plaintiff’s theory of the case was that defendant improperly “dry-mopped” an
alleged spill that occurred immediately preceding p laintiff’s fall and that such act caused
an invisible film of oil to be spread over a wide a rea of the floor, including the spot where
plaintiff fell. Plaintiff further maintained that defendant was negligent in failing to warn
plaintiff (and other patrons) of this known latent hazardous condition. In support of this
theory, plaintiff relies upon: (1) plaintiff’s and Ms. Caplinger’s testimony that although
there was no visible foreign substance on the floor prior to plaintiff’s fall, the floor was very
slippery; (2) Mr. Wilson’s testimony that a spill h ad occurred and another patron had fallen
in the same area; (3) Ms. Caplinger’s testimony tha t the floor felt greasy to the touch;
(4) Mr. Hood’s testimony that any substances tracke d in from the outside would have
been either caught on the carpet or visible to plai ntiff as she walked across the floor; and
(5) the December 21, 1996 telephone conversation be tween plaintiff and Mr. Hood,
wherein Mr. Hood suggested that the floor had been washed and the “cones” were “up.”
No. 99AP-1273
18
The mere fact that a customer slips and falls on t he floor of a business
establishment does not, standing alone, create an i nference that the floor was unsafe.
J.C. Penney Co. v. Robison (1934), 128 Ohio St. 626, paragraph four of the sy llabus.
Rather, there must be evidence tending to show that some negligent act or omission of
the business owner caused the fall. Id.
The jury, as trier of fact, was free to believe or disbelieve any of the
witnesses who testified at trial, and was likewise free to accept or reject any of the
inferences upon which plaintiff based her claim and /or plaintiff’s entire theory of the case.
As evidenced by the jury’s response to Interrogator y No. 1, it is clear that the jury did not
find the evidence upon which plaintiff relies suffi cient to overcome her burden of proof on
the issue of whether defendant created a hazardous condition on its premises. The jury’s
finding in this regard is supported by prior decisi ons of this court. See, e.g., Colletti v.
J. C. Penney Co., Inc. (Mar. 9, 1993), Franklin App. No. 92AP-1605, unrepo rted, and Gon
v. Dick Clark’s American Bandstand & Grill (Feb. 11, 1996), Franklin App. No. 96APE07-
910, unreported.
Given all the foregoing, we find that although the trial court should have
conducted an analysis under Evid.R. 403(A) and 404( B) with regard to defense counsel’s
references to plaintiff’s prior litigation history, any error in failing to do so was harmless.
As such, the trial court did not abuse its discreti on in refusing to grant plaintiff’s motion for
mistrial. The decision whether to grant a mistrial is one addressed to the sound discretion
of the trial court. Quellos v. Quellos (1994), 96 Ohio App.3d 31, 41. This court may not
substitute its judgment for that of the trial court absent an abuse of discretion.
Id.
Accordingly, the first assignment of error is overr uled.
No. 99AP-1273
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By the second assignment of error, plaintiff conte nds that the trial court
erred in allowing defense counsel to examine Dr. Mu rphy on the alleged claim that
plaintiff suffers from a condition known as “compen sation neurosis.”
On cross-examination, defense counsel asked Dr. Mu rphy if he had ever
treated a patient suffering from “compensation neur osis.” Plaintiff’s counsel objected to
the line of questioning on two bases: (1) that no d efense witness was scheduled to testify
on the issue; and (2) that Dr. Murphy had already t estified that he was not an expert in the
field of psychology and psychiatry. The trial cour t overruled the objection. In response to
defense counsel’s question, Dr. Murphy stated that he was unfamiliar with the term
“compensation neurosis.” Defense counsel thereafte r defined the term: “[I]t’s certain
patients involved in litigation are driven by the p otential monetary reward rather than a
good physical outcome.” (Tr. III, 466.) Dr. Murph y admitted that he had not consulted
with plaintiff’s treating psychologist to determine whether she might have “compensation
neurosis” or some other psychological component to her medical condition. However, he
opined that plaintiff did not suffer from “compensa tion neurosis,” as legitimate objective
findings supported the medical diagnoses regarding her knee and shoulder injuries.
In reviewing plaintiff’s argument, we are mindful that “[t]he scope of cross-
examination and the admissibility of evidence durin g cross-examination are matters which
rest in the sound discretion of the trial judge.”
O’Brien v. Angley (1980), 63 Ohio St.2d
159, 163. Thus, absent a showing of a clear and pr ejudicial abuse of discretion, the trial
court’s decision will not be disturbed on appeal.
Id. An abuse of discretion requires a
demonstration that the trial court’s attitude was u nreasonable, arbitrary or
unconscionable. Cedar Bay Constr., Inc. v. Fremont (1990), 50 Ohio St.3d 19, 22.
No. 99AP-1273
20
Assuming, arguendo, that the trial court should not have allowed the
challenged testimony, any error in its admission wa s harmless. Once defense counsel
defined the term “compensation neurosis,” Dr. Murph y opined that plaintiff did not suffer
from such a condition, as legitimate objective find ings supported the medical diagnoses
regarding plaintiff’s knee and shoulder injuries. U nder these circumstances, we fail to see
in what manner plaintiff’s case was prejudiced by t he introduction of evidence which was
wholly rejected by Dr. Murphy. Accordingly, plaint iff’s second assignment of error is
overruled.
By the third assignment of error, plaintiff c hallenges the trial court’s ruling
excluding the testimony of defendant’s expert witne ss. Prior to trial, defendant filed a
motion in limine seeking to exclude the testimony of plaintiff’s ex pert witness, Dr.
Gerald S. Burko, on the basis that Mr. Burko’s test imony was irrelevant and did not relate
to matters beyond the knowledge or experience posse ssed by lay persons as required by
Evid.R. 702. Plaintiff filed a memorandum in oppo sition.
Pursuant to Evid.R. 104(A), the trial court held a hearing on the matter
immediately preceding trial. At that hearing, Mr. Burko, a safety engineer consultant,
testified on direct examination that he was familia r with the general properties, including
the potential for slipperiness, of the type of indu strial ceramic tile utilized in retail and
industrial establishments such as defendant’s resta urant. Mr. Burko further stated that
ceramic tile such as that used in defendant’s resta urant absorbs a portion of any
substance dropped on it, including oil and grease. He further testified that he was familiar
with laboratory tests designed to determine the coe fficient of friction (“COF”) of ceramic
No. 99AP-1273
21
tile. He opined that the average person was not aw are of either the changes that may
occur to ceramic tile properties over time, includi ng their COF and/or absorption rates.
Dr. Burko admitted that he had not conducted a COF test on the ceramic
tile in defendant’s restaurant; however, he stated that there would have been no value to
conducting such a test as the COF changes with time and with changed conditions. He
further testified that in forming an opinion on the cause of a premises fall, he typically
looks at evidence such as statements regarding site conditions and does not necessarily
need to inspect the site himself in order to form a n opinion.
Based on a hypothetical posited by plaintiff’s cou nsel, i.e, that the ceramic
tile in defendant’s restaurant: (1) was general ind ustrial nonglazed ceramic quarry tile;
(2) had been in place for seven to twenty years; (3 ) was located in a high-traffic area; (4)
was subjected to spills of water, oil and grease ov er the years; and (5) had been cleaned
according to the procedures outlined in defendant’s operational manual, Mr. Burko opined
that there was a reasonable probability that the ti le had absorbed a substantial amount of
oil and grease over the years and that the cleaning procedures utilized by defendant did
not remove all that had been absorbed.
Mr. Burko opined that, based upon his review of bo th plaintiff’s and Ms.
Caplinger’s description of the floor on the day of
plaintiff’s fall and the cleaning
procedures set forth in defendant’s operational pro cedures manual, the most probable
cause of the slippery condition of the floor was th at a mop used to clean a spill had
grease or oil on it from a previous dry-mopping, an d the oil or grease residue on the mop
was then spread over a wide area of the floor. Mr . Burko opined that defendant’s use of
plain water (dry-mopping) to clean an area that has grease or oil residue is not a safe
No. 99AP-1273
22
procedure because it serves only to spread the oil or grease as opposed to cleaning it up.
According to Mr. Burko, the floor looks clean only because the oil or grease is spread in a
very thin layer.
On cross-examination, Mr. Burko admitted that it i s common knowledge that
a greasy floor is generally more slippery than a dr y floor. He further testified that he had
never tested the COF of a piece of ceramic tile and is not qualified to do so. He also
stated that he did not test an exemplar piece of ti le used in defendant’s restaurant, nor did
he visit defendant’s restaurant after plaintiff’s f all, nor did he have any knowledge of the
condition of the tile beyond that which plaintiff’s counsel told him. He further testified that
he did not utilize any scientific testing method to determine how long it takes a floor to dry
after being dry-mopped and/or to determine the effe ctiveness of the degreasing agent
utilized by defendant in their cleaning procedures.
Mr. Burko further testified that he
utilized no scientific method in determining either that the tile was greasy or that
defendant created a hazard by spreading grease duri ng dry-mopping; rather, he based
such conclusion on statements made by plaintiff and Ms. Caplinger that the floor felt
greasy. Mr. Burko further testified that he based his conclusion on testimony and
deductive reasoning, including eliminating other ca uses for plaintiff’s fall.
By written decision dated August 24, 1999, the tri al court found Mr. Burko’s
testimony to be in contravention of Evid.R. 702 and , therefore, not admissible.
Specifically, the trial court found that Mr. Burko had not visited the scene of plaintiff’s
accident, did not possess any knowledge of the subs tance which plaintiff alleged to have
caused her fall, and had not performed scientific t esting of any type. The trial court found
that Mr. Burko’s only source of information stemmed from his review of discovery
No. 99AP-1273
23
materials and a meeting with plaintiff and Ms. Capl inger. Further, the court found as
follows:
During his testimony in front of this Court, Burko could not
state whether the tile on which Plaintiff fell was glazed or
unglazed, nor could he state the coefficient of fri ction (COF)
which he previously indicated in his report was a r evealing
scientific calculation. Burko specifically testif ied that the COF
was a test which had no substantial meaning in a fi eld setting
and would not be revealing even if it was taken imm ediately
following a fall on ceramic tile. If this is the c ase, then it would
appear to the Court that scientific testing or opin ion on the
COF of the floor would not be of any assistance to the jury.
Burko further testified that his conclusions both o n causation
and on negligence were arrived at through deductive
reasoning and the elimination of any other possibil ities. This
consisted of taking into account the statements mad e by both
Plaintiff and Caplinger that: (1) the floor where t he incident
took place was not wet; (2) it did not appear that anything had
been tracked in from outside; (3) there did not app ear to be
any items on the floor, including the products from the salad
bar and those sold by Wendy’s; (4) the area appeare d
slippery or slimy and (5) the slimy area appeared t o cover a
significant region thus indicating it may have been spread.
While it is true that deductive reasoning is a tool of any
scientist, the court does not find that any scienti fic method or
expert reasoning was necessary to engage in the ana lysis
and process of elimination opinion rendered by Burk o. In this
respect the Court finds that Burko’s testimony fail s to satisfy
Evid.R. 702(A).
The court further found:
Plaintiff in her Memorandum Contra states that a se cond
purpose of Burko’s expert testimony is to dispel a
misconception common among lay persons. See Evid.R .
702(A).
To this result, Plaintiff suggests that on e such
misconception where Burko is of assistance is the i dea that a
floor must be wet in order to be hazardous. Howeve r, during
his testimony, Burko indicated that an ordinary per son could
distinguish that a floor is more slippery when wet than dry and
that a lay person could further conclude that a flo or is more
slippery when greasy than when not. The Court is n ot in
agreement with Plaintiff that Burko can enlighten t he trier of
No. 99AP-1273
24
fact with any degree of certainty beyond these rudi mentary
conclusions. As a result of the foregoing, Burko’s testimony is
not admissible because it is speculative and it fai ls to relate to
matters beyond the knowledge or experience possesse d by
lay persons.
Evid.R. 702 provides in part that:
A witness may testify as an expert if all of the fo llowing apply:
(A) The witness’ testimony either relates to matter s beyond
the knowledge or experience possessed by lay person s or
dispels a misconception common among lay persons;
(B) The witness is qualified as an expert by specia lized
knowledge, skill, experience, training, or educatio n regarding
the subject matter of the testimony;
(C) The witness’ testimony is based on reliable sci entific,
technical, or other specialized information. ***
“The initial determination whether a witness is qu alified to testify as an
expert and to give an opinion on a particular subje ct rests within the sound discretion of
the trial court.” Joyce-Couch v. DeSilva (1991), 77 Ohio App.3d 278, 284. Accordingly, a
trial court’s ruling excluding an expert’s testimon y will not be reversed in the absence of
an abuse of discretion. Id. See, also, Fugett v. Harris (1995), 107 Ohio App.3d 415, 419.
(“Whether an individual qualifies as an expert is a question for the court pursuant to Evid.
R. 104(A), and will be reversed only for an abuse o f discretion.”)