IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Adam W. Crum, Jr., and Udell Crum,
:
Plaintiffs-Appellants,
:
No. 02AP-818
v.
:
(C.P.C. No. 01CVC-3283)
Guittan Walters,
:
(REGULAR CALENDAR)
Defendant-Appellee.
:
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O P I N I O N
Rendered on April 8, 2003
_________________________________________________
Steven Mathless, for appellants.
Crabbe, Brown & James, LLP , and Daniel J. Hurley, for
appellee.
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APPEAL from the Franklin County Court of Common Ple as.
KLATT, J.
{¶1}
Plaintiffs-appellants, Adam W. Crum, Jr., and his w ife Udell Crum, appeal
from a judgment of the Franklin County Court of Com mon Pleas awarding judgment in
favor of defendant-appellee, Guittan Walters, on ap pellants' negligence claim against
appellee. Because the trial court erred in admitti ng evidence of Adam Crum's failure to
wear his seat belt at the time of the accident, we
reverse that judgment.
{¶2}
On October 1, 1998, Adam W. Crum, Jr. ("Crum") was
operating his
automobile at or near the intersection of South Ham ilton Road and Refugee Road in
No. 02AP-818
2
Columbus, Ohio. Crum was stopped at an intersectio n waiting for the traffic signal to
change from red to green. Appellee was also stoppe d in her vehicle immediately behind
Crum. When the traffic light turned green, Crum be gan to move forward. But he had to
stop abruptly when an ambulance entered the interse ction. Appellee's car then hit the
rear of Crum's vehicle.
{¶3}
Crum and appellee got out of their cars apparently
unhurt. Columbus
Police Officer David McGuire came upon the scene an d investigated the accident. In his
accident report, Officer McGuire noted there were n o injuries reported at the scene and
no ambulance was requested.
He also indicated that
appellee sustained property
damage to the front, left area of her car, while Cr um's vehicle had some light damage to
the rear bumper. Officer McGuire further noted tha t Crum was not wearing a seat belt at
the time of the accident. Crum and appellee were b oth able to drive their cars away.
{¶4}
In the next few days, however, Crum began experienc ing headaches, back,
neck, shoulder and leg pain, ringing in his ears an d jaw clicking, although he did not miss
any work as a result of these alleged injuries. Su bsequently, Crum visited a chiropractor
43 times between October 1998 and March 1999, and a lso went to a dentist a few times
for treatment of these injuries.
{¶5}
By complaint filed April 9, 2001, appellants initia ted the present suit,
claiming they had been injured due to appellee's ne gligent operation of her car. Appellee
did not contest that she was negligent. But appell ee disputed that her negligence
proximately caused appellants' alleged injuries.
{¶6}
The matter proceeded to a jury trial.
Appellants p resented Crum's
chiropractor and dentist who both testified that Cr um's injuries were proximately caused
by the accident. They also testified to the nature
and extent of Crum's injuries, the
permanency of those injuries, and the medical bills Crum incurred as a result of those
injuries. Crum testified about his physical condit ion both before and after the accident, as
well as the pain he suffered from his injuries. At
the conclusion of the case, the jury
returned a verdict in favor of appellee. Appellant s' post-trial motions for a directed verdict,
a new trial, judgment notwithstanding the verdict, and/or additur were all denied by the
trial court.
No. 02AP-818
3
{¶7}
Appellants now appeal, assigning the following erro rs:
{¶8}
"1. The trial court erred in admitting into [sic] a llowing Appellee to question
witnesses whether Appellant was wearing a seat belt evidence [sic] at the time of the
collision.
{¶9}
"2. The trial court abused its discretion in allowi ng Appellee to cross-
examine Appellant with a statements [sic] recorded by someone other than the witness
contained in an unauthenticated medical report.
{¶10}
"3. The trial court abused its discretion in improp erly limiting the testimony
of Appellant's treating physician including excludi ng the testimony of a licensed
chiropractor on how the forces of a car collusion p roduce a hyper-extension flexion injury.
{¶11}
"4. Trial court erred in giving a confusing instruc tion concerning life
expectancy, in refusing to take judicial notice of
life expectancy, and in refusing to read
life expectancy as part of jury instructions.
{¶12}
"5. Trial court abused its discretion in allowing A ppellee to cross examine
Mr. Crum about what medical opinions his treating p hysician purportedly told him about
his injuries.
{¶13}
"6. The trial court erred in failing to grant a new
trial pursuant to Civil R.59 or
a judgment NOV where in an action to recover damage s, negligence was stipulated, and
the verdict for the Appellee-defendant cannot be re conciled with the undisputed medical
evidence of the case,. [sic] The verdict should be
set as being manifest against [sic] the
weight of the evidence and contrary to law which wa s caused by the passion of the jury
that were [sic] inflamed by Appellee."
{¶14}
Appellants contend in their first assignment of err or that the trial court
improperly allowed testimony regarding Crum's failu re to wear a seat belt at the time of
the accident. Over appellants' objections, appelle e was allowed to question Crum and
Officer McGuire about Crum's use of a seat belt at
the time of the accident. Although
Crum never actually answered the question, Officer McGuire testified that his accident
report indicated that Crum was not wearing a seat b elt when the accident occurred.
{¶15}
The admissibility of evidence regarding the use of a seat belt is governed by
R.C. 4513.263(F). The version of R.C. 4513.263(F) applicable here provided that:
No. 02AP-818
4
{¶16}
"* * * [T]he failure of a person to wear all of the
available elements of a
properly adjusted occupant restraining device or to ensure that each passenger of an
automobile being operated by the person is wearing all of the available elements of such
a device, in violation of division (B) of this sect ion, shall not be considered or used as
evidence of negligence or contributory negligence,
shall not diminish recovery for
damages in any civil action involving the person ar ising from the ownership, maintenance,
or operation of an automobile, shall not be used as
a basis for a criminal prosecution of
the person other than a prosecution for a violation
of this section, and shall not be
admissible as evidence in any civil or criminal act ion involving the person other than a
prosecution for a violation of this section." (Emph asis added.) See, also, Rivera v.
Overman (July 5, 2001), Cuyahoga App. No. 78013.
{¶17}
This prior version of R.C. 4513.263(F) prohibited t he admission of evidence
of a person's failure to wear a seat belt to prove
negligence or contributory negligence, or
to diminish recovery of damages in a civil action.
Id.; Craig v. Woodruff (2000), 140 Ohio
App.3d 596, 599-600. Nevertheless, in the case at
bar, the trial court permitted testimony
concerning Crum's failure to wear his seat belt at
the time of the accident. The trial court
did not admit this testimony on the issue of Crum's
comparative negligence. Rather, the
trial court reasoned that testimony concerning Crum 's failure to wear a seat belt was
admissible to show that the collision could not hav e been the proximate cause of Crum's
injuries because the force of the collision did not
cause Crum to hit the dashboard or
steering wheel. Appellee agrees with the trial cou rt's logic and also argues that the
testimony was admissible for impeachment purposes.
See Braun v. Pikus (Feb. 25,
1993), Cuyahoga App. No. 61852. We disagree.
{¶18}
Former R.C. 4513.263(F) expressly prohibits the adm ission of evidence of a
person's failure to use a seat belt "in any civil o r criminal action involving the person other
than a prosecution for a violation of this section. " Id. Therefore, such testimony could not
be admitted to prove the proximate cause of Crum's
injuries or the severity of the
collision.
{¶19}
Moreover, appellee's contention that the testimony was offered to impeach
Crum is not persuasive. First, after appellants ob jected to this testimony, appellee's trial
No. 02AP-818
5
counsel stated that Crum's failure to wear a seat b elt went to the issue of comparative
negligence. In fact, after the presentation of evi dence, appellee's counsel requested a
jury instruction on comparative negligence based on Crum's failure to wear a seat belt.
{¶20}
Second, Crum never testified that he was wearing hi s seat belt at the time
of the accident.
Appellee argues that Crum's fail ure to wear his seat belt impeached
Crum's alleged statement to his dentist that appell ee's vehicle was traveling 35 miles per
hour when it hit the rear of his car. However, tes timony that Crum was not wearing his
seat belt does not impeach this alleged statement
-- particularly given that Crum also
allegedly told his dentist that the impact caused h im to strike his head on the interior roof
and to be bounced around in the car. Moreover, at
trial, Crum testified that he thought
appellee was driving slower than 35 miles per hour
when she hit his car. We, therefore,
reject appellee's contention that testimony regardi ng Crum's failure to wear his seat belt
was admissible for impeachment purposes.
{¶21}
Appellee's reliance on Braun, supra, is also misplaced. In Braun, defense
counsel implied in the questioning of plaintiff tha t emergency room records indicated
plaintiff was not wearing a seat belt at the time o f the accident. Although the court noted
that such evidence could be used for impeachment pu rposes, the court found that the
evidence was not properly admitted to impeach plain tiff. Nevertheless, the court found
that the admission of such evidence was harmless be cause the emergency room records
about which plaintiff was asked clearly indicated t hat plaintiff was wearing a seat belt at
the time of the accident and because comparative ne gligence was not an issue in
plaintiff's trial.
{¶22}
Here, appellee also contends that any error in allo wing testimony about
Crum's failure to wear his seat belt was harmless b ecause appellee stipulated to
negligence, and because the jury was never instruct ed on the issue of contributory
negligence. Appellee is correct that, even if a tr ial court errs in admitting evidence, such
error provides a basis for reversal on appeal only
upon a demonstration that its admission
affected a substantial right or was inconsistent wi th substantial justice.
Civ.R. 61;
Cincinnati v. Banks (2001), 143 Ohio App.3d 272, 290; Ballash v. Ohio Dept. of Trans.
(Feb. 19, 2002), Franklin App. No. 01AP-668. Such
error is considered harmless if it can
No. 02AP-818
6
be said that, in the absence of the error, the "tri er of the facts would probably have made
the same decision."
Hallworth v. Republic Steel Corp. (1950), 153 Ohio St. 349,
paragraph three of the syllabus; Craig, supra.
{¶23}
We cannot say, however, that the admission of Offic er McGuire's seat belt
testimony was harmless error in this case. The jur y twice heard evidence of Crum's
failure to wear a seat belt. Given the relatively
minor impact involved in the accident, the
jury could have believed that Crum would not have b een injured if he had been wearing
his seat belt. This is an inference prohibited by
former R.C. 4513.263(F). Even though
the jury was not instructed on contributory neglige nce, the jury may have been influenced
by the suggestion that Crum was responsible for his
own injuries. In fact, based on
appellee's trial counsel's statements, this is exac tly why the evidence was introduced,
notwithstanding appellee's arguments on appeal. Be cause the seat belt testimony may
have affected the jury's decision on proximate caus e or the nature and extent of
appellants' injuries, the only contested issues at trial, we cannot conclude that the jury
would probably have reached the same decision witho ut the introduction of the seat belt
evidence. Craig, supra. Accordingly, we find that the admission of
evidence concerning
Crum's failure to wear his seat belt was not harmle ss error. We, therefore, sustain
appellants' first assignment of error.
{¶24}
Our disposition of appellants' first assignment of error renders appellants'
second through sixth assignments of error moot. Ap p.R.12(A)(1)(c). Having sustained
appellants' first assignment of error, we remand th is matter for further proceedings
consistent with this opinion.
Judgment reversed and case remanded.
BRYANT and LAZARUS, JJ., concur.
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