Vogel v. Wells

• Decision Date: 30 January 1991
• Docket Number: No. 89-1662,89-1662
• Citation: 57 Ohio St.3d 91,566 N.E.2d 154
• Parties: VOGEL, Admr. De Bonis Non, Appellee, v. WELLS, Appellee; City of Akron, Appellant.
• Court: Ohio Supreme Court

Page 91

57 Ohio St.3d 91

566 N.E.2d 154

VOGEL, Admr. De Bonis Non, Appellee, v. WELLS, Appellee City of Akron, Appellant.

No. 89-1662.

Supreme Court of Ohio.

Submitted Oct. 23, 1990.

Decided Jan. 30, 1991.

Syllabus by the Court

Section 28, Article II of the Ohio Constitution prohibits the legislature from retroactively applying laws that affect substantive rights. Therefore, the application of R.C. 2744.05(B) to causes of action arising before November 20, 1985, the effective date of the statute, is unconstitutional. (Van Fossen v. Babcock & Wilcox Co. [1988], 36 Ohio St.3d 100, 522 N.E.2d 489, paragraphs one and three of the syllabus, followed.)

At approximately 5:30 p.m. on September 18, 1984, Vicky L. Wells, appellee, was driving her 1974 Corvette westbound on Wayne Avenue in Akron at approximately twenty-five to thirty miles per hour, accompanied by her ten-year-old daughter. At that same time, Barry Oswald was driving a Ford Ranger pickup truck northbound on Glenmount Avenue at approximately thirty miles per hour, accompanied by the decedent, Robert D. Wattley, Jr. The two men had just left their place of employment at a warehouse on Glenmount Avenue and were proceeding north to take Wattley home.

Glenmount Avenue is an arterial street running north and south. Therefore, stop signs were posted at streets such as Wayne Avenue that intersect Glenmount from east to west.

As Wells approached the intersection of Glenmount and Wayne Avenues, she failed to stop her Corvette before entering the intersection and collided with the approaching Ford Ranger, causing it to overturn and eject Wattley, who was trapped beneath the Ranger. Wattley died of injuries received in the accident, while Oswald was only slightly injured.

As a result of Wattley's death, on May 1, 1985, the predecessor of Walter J. Vogel, as the administrator of Wattley's estate, filed wrongful death and survivorship actions against Wells and the city of Akron. The complaint alleged that Wells had been negligent in failing to stop at the stop sign on Wayne Avenue. It also alleged that Akron had been negligent in constructing and maintaining the intersection and in creating a nuisance by failing to remove tree branches that allegedly obstructed the view of the stop sign.

Wells and Akron filed cross-claims against each other and Wells also filed a third-party complaint against Oswald, the driver of the Ford Ranger. The third-party complaint was voluntarily dismissed on the morning of trial.

Prior to trial, the court granted Vogel's motion in limine to restrain the parties from discussing at trial whether anyone involved in the accident wore a seat belt or from discussing what the effect of wearing or failing to wear a seat belt may have been, and to restrain the parties from discussing the marital status of the decedent's widow. The court denied Akron's motion in limine to prevent introduction of a videotape of the scene of the accident. The court denied Akron's motion for an order allowing Akron to disclose to the jury the existence of a purported agreement between Wells and Vogel. Akron suggested that this alleged agreement could have been designed to limit Wells's potential liability in exchange for her testimony, damaging to Akron, regarding Akron's alleged negligence in failing to remove foliage that obstructed the view of the stop sign.

The court denied Akron's motion for a directed verdict made at the close of plaintiff Vogel's case. After trial, the jury returned its verdict and found against Akron and in favor of Vogel in the sum of $805,000. It also returned a verdict in favor of Wells. The court denied Akron's motions for judgment notwithstanding the verdict, for a new trial, and for remittitur. After an evidentiary hearing, the court denied Vogel's motion for prejudgment interest and granted Akron's motion for a collateral source setoff pursuant to R.C. 2744.05(B), reducing Vogel's damage award by $195,783.28. The setoff was keyed to funds plaintiff had received or would receive from the collateral sources of Social Security, veterans' benefits and gifts from the decedent's father and from his employer.

Akron appealed and Vogel cross-appealed to the Court of Appeals for Summit County. That court affirmed the trial court's judgment, except for reversing the trial court's setoff of the payments from collateral sources. The appeals court restored the $195,783.28 to the judgment in favor of Vogel, holding some of that amount did not constitute "benefits" to be set off under R.C. 2744.05(B), and that the remainder could not be reached without violating the prohibition of Section 28, Article II of the Ohio Constitution against retroactively impairing substantive rights.

This cause is before the court upon the allowance of a motion to certify the record.

Daniel T. Wilson, Akron, for appellee Walter J. Vogel.

Harry A. Tipping, Akron, for appellee Vicky L. Wells.

Max Rothal, Director of Law, and Cheri B. Cunningham, for appellant.

Calfee, Halter & Griswold, John E. Gotherman, Stanley J. Dobrowski and Thomas P. Pappas, Cleveland, urging reversal for amicus curiae Ohio Mun. League.

WRIGHT, Justice.

This case presents a number of interesting questions for our resolution. These questions involve: the retroactivity of the abrogation of the collateral source rule as to municipalities, the admissibility of evidence on the use and effect of seat belts in accidents predating passage of Ohio's seat belt law, the exclusion of evidence involving an alleged "Mary Carter agreement," the admissibility of evidence involving a videotaped reconstruction of an accident scene, and the propriety of findings of negligence in regard to a municipality's failure to remedy a visual obstruction of a stop sign. While we will resolve each of these questions in turn, we now affirm the decision of the court of appeals.

I

We turn first to the question of whether the trial court properly excluded evidence of a purported "Mary Carter agreement" between one of the defendants, Vicky Wells, and Walter Vogel, administrator of the decedent's estate. "The Mary Carter agreement, named for an early case, * * * [Booth v. Mary Carter Paint Co. (Fla.App.1967), 202 So.2d 8,] is a contract between a plaintiff and one defendant allying them against another defendant at trial. It arises in tort litigation where a plaintiff sues two or more defendants for the same injury." Note, It's a Mistake to Tolerate the Mary Carter Agreement (1987), 87 Colum.L.Rev. 368, 368-369. ¹

Akron contended that certain discussions between Daniel Wilson, Vogel's attorney, A. William Zavarello, Wells's attorney, and Harry A. Tipping, Wells's insurance company's attorney representing Wells, evidenced the existence of a collusive agreement between these parties that could bias Wells in her testimony. Thus, Akron moved that it be allowed to disclose to the jury the existence of the purported agreement and to cross-examine Wells to show possible bias on her part, due to her counsel's participation in the purported agreements. After an adequate hearing, the trial court denied this motion, since the court found no potential bias.

At the hearing, Tipping, Wells's insurer's attorney, stated that he had offered the entire $100,000 limit of Wells's insurance policy to Wilson, Vogel's counsel, in settlement of Vogel's claim against Wells. This offer was to remain open until the jury retired to consider its verdict. Wilson stated that his client, Vogel, did not and would not accept the offer. Wilson did, in fact, gratuitously offer to limit his execution upon Wells's property to $100,000, if the jury found her to be negligent to that extent or greater.

It is apparent from the record that the trial court was correct in concluding that whatever effect Tipping's offer may have had, the offer provided an insufficient basis to allow cross-examination on the issue of Wells's possible bias. It is also apparent that Wilson's offer to limit the extent of his potential execution upon Wells's property was unsupported either by consideration or by the consideration substitute of justifiable reliance. We note that Wilson's offer could have been withdrawn at any time. Because there is no evidence of a collusive agreement between any of the parties, and because Wilson's offer, whatever its effect, was completely gratuitous, we find no abuse of discretion and uphold the court of appeals' judgment affirming the trial court's ruling on this issue.

II

Akron argues that it was improper for the trial court to admit into evidence a videotaped reconstruction of the view of the scene prior to the accident offered by Wells and recorded by an expert within two weeks after the accident.

Akron asserts that the tape was inadmissible because the reconstructed events and the actual events were so dissimilar as to prejudice Akron. It is settled that experiments such as this reconstruction must be performed under conditions substantially similar to the occurrence in issue. St. Paul Fire & Marine Ins. Co. v. Baltimore & Ohio RR. Co. (1935), 129 Ohio St. 401, 2 O.O. 396, 195 N.E. 861, paragraph one of the syllabus; Smith v. State (1853), 2 Ohio St. 511. However, " * * * dissimilarities, when not so marked as to confuse and mislead the jury, go to the weight rather than the admissibility of the evidence." St. Paul Fire & Marine Ins. Co., supra.

At trial, Thomas F. Baker, production manager for Multivideo Services, Inc., a company specializing in accident reconstruction, testified as an expert witness for Wells and explained his role in videotaping a reconstruction of the view prior to the accident. Baker visited the accident scene accompanied by Wells and other persons on September 20, 1984 and October 3, 1984. Baker mounted a professional quality video camera at eye level immediately beside Wells's head in a Corvette similar to the one Wells had driven on the date of the accident. Baker testified that he had ensured that the...