Berk v. Matthews

• Citation: 53 Ohio St.3d 161,559 N.E.2d 1301
• Decision Date: 29 August 1990
• Docket Number: No. 89-212,89-212
• Parties: BERK, et al., Appellees, v. MATTHEWS, Appellant.
• Court: United States State Supreme Court of Ohio

Page 161

53 Ohio St.3d 161

559 N.E.2d 1301

BERK, et al., Appellees, v. MATTHEWS, Appellant.

No. 89-212.

Supreme Court of Ohio.

Submitted Feb. 7, 1990.

Decided Aug. 29, 1990.

Syllabus by the Court

The determination of whether a prospective juror should be disqualified for cause pursuant to R.C. 2313.42(J) is a discretionary function of the trial court. Such determination will not be reversed on appeal absent an abuse of discretion. (Maddex v. Columber [1926], 114 Ohio St. 178, 151 N.E. 56, approved and followed.)

On October 3, 1985, plaintiff-appellee Anne Berk was jogging in a westerly direction opposite traffic on the south side of South Woodland Avenue in Shaker Heights, Ohio. As appellee approached the intersection of South Woodland Avenue and Attleboro Road, the traffic signal was green in her direction and vehicular traffic on Attleboro Road was stopped. At this time, a motor vehicle operated by defendant-appellant Bernard Matthews was in the front of a line of automobiles stopped for the red light in the northbound lane of Attleboro Road. As appellant turned right to proceed east on South Woodland Avenue, his automobile struck and injured appellee as she was about to cross the intersection.

On January 16, 1987, appellees Anne and Arthur Berk instituted the present action in the Cuyahoga County Court of Common Pleas alleging negligence on the part of appellant in the operation of his motor vehicle. It was further alleged that, as a result of such negligence, appellee Anne Berk incurred bodily injuries, medical expenses and loss of income, and that appellee Arthur Berk was "deprived of the love, affection, companionship, assistance, and society of his Wife."

On August 5, 1987, voir dire of potential jurors was conducted. In the course of voir dire the following exchange took place between the court and a potential juror:

"THE COURT: * * *

"Mrs. Logerwell, is there anything, ma'am, that you want to discuss that might affect your jury service in this case?

"MRS. LOGERWELL: Well, frankly, I don't think joggers--don't think joggers belong in the street.

"THE COURT: If I told you that the law permits a party to jog in the street under certain conditions, would you follow the law if that comes to pass, if I give you an instruction concerning that?

"MRS. LOGERWELL: Well, I have almost hit joggers, so I think I would be prejudice [sic ].

"THE COURT: Accordingly, could you put that prejudice aside and decide this case on the facts presented, whatever they might be, and the law as I give it to you?

"Let me give you an illustration. All of us dislike murder, but nonetheless, we ask people to come in and sit on a criminal case, and although you may dislike murder, you still have to follow the law and determine the facts and make a judgment. You have a personal disposition apparently or a feeling against jogging in the street. All right. There's nothing wrong with that.

"I will tell you the applicable law, and if it differs with your opinion, can you keep your opinion outside the deliberation room and base your decision on the facts as you determine them to be, and the law as I give it to you?

"MRS. LOGERWELL: Yes."

During a later conversation between the prospective juror and counsel for appellee the following exchange took place:

"MR. KAMPINSKI: Mrs. Logerwell, you indicated that you almost hit joggers?

"MRS. LOGERWELL: Well, I live near the Metropark, and I live in Berea and I see no reason they have to be in the street when we have a Metropark.

"MR. KAMPINSKI: Do you think it is wrong to be in the street?

"MRS. LOGERWELL: I understand they run three abreast sometimes and it is very annoying.

"MR. KAMPINSKI: You don't think that's appropriate for them to get in the way of cars?

"MRS. LOGERWELL: Right.

"MR. KAMPINSKI: And you feel you would have some predisposition to rule against somebody that--

"MRS. LOGERWELL: I wonder if I would.

"MR. KAMPINSKI: It is important to my client that we be able to obtain a fair trial, and do you feel that you could be able to rule in her favor despite your reservations against joggers?

"MRS. LOGERWELL: After hearing the complete details, I could.

"MR. KAMPINSKI: And if she was jogging in the street when she was hit--

"MRS. LOGERWELL: I heard you say something about a red light. I was wondering if she was in the crosswalk--

"MR. KAMPINSKI: Would that matter to you?

"MRS. LOGERWELL: Well, that would change my opinion.

"MR. KAMPINSKI: In other words, if the person was turning right on red--

"MRS. LOGERWELL: That's right.

"MR. KAMPINSKI: Would it matter if she was running close to the curb or not?

"MRS. LOGERWELL: Well--

"MR. FARRALL: I am going to object.

"THE COURT: The objection is sustained.

"MR. FARRALL: Thank you.

"MR. KAMPINSKI: You mentioned that joggers troubled you when they run three abreast sometimes?

"MRS. LOGERWELL: Yes.

"MR. KAMPINSKI: Are there other joggers that don't run close to the curb that don't bother you?

"MRS. LOGERWELL: They all bother me. They wear stereos and they don't always hear horns.

"MR. KAMPINSKI: Do you still think you could be fair and impartial even with that view?

"MRS. LOGERWELL: I believe if I heard all the details, particularly when you mentioned right on red turn, I was wondering.

"MR. KAMPINSKI: What is it that you were wondering?

"MRS. LOGERWELL: If she was crossing the street.

"MR. KAMPINSKI: What if she wasn't across the street, but jogging in the street at an intersection?

"MRS. LOGERWELL: I would have trouble not being prejudice [sic ].

"MR. KAMPINSKI: You would be prejudice [sic ]. May we approach the bench?

"THE COURT: She said she would have trouble not being--

"MR. KAMPINSKI: Would you be prejudiced against her?

"MRS. LOGERWELL: Yes, I think so.

"MR. KAMPINSKI: I would move to excuse this juror for cause, Your Honor."

Following a bench conference with counsel for both parties, the challenge for cause was denied. Voir dire of the prospective juror resumed and the following discussion took place:

"MR. KAMPINSKI: In light of what you have said earlier about joggers, do you think you could be fair and impartial and listen to the evidence in this case and make a decision based upon the facts and try to put aside what you believe about joggers in the street?

"MRS. LOGERWELL: I believe I could because of the location of where this happened. I live near Metroparks and there's no excuse to be in the streets. Perhaps there's no place else to jog.

"MR. KAMPINSKI: You're saying because of the nearness of the park, the joggers bother you?

"MRS. LOGERWELL: Yes. The lady maybe had no other place to jog.

"MR. KAMPINSKI: Thank you.

"MRS. LOGERWELL: I can listen to it all.

"THE COURT: Mr. Farrall, on behalf of the Defendant?

"MR. FARRALL: Thank you, Your Honor. Thank you for bringing that to our attention. You understood the thrust of the earlier questions that were asked and everybody wants to start equal and that includes the Plaintiff as well as the Defendant.

"You are willing to listen to all of the evidence in the case?

"MRS. LOGERWELL: Yes.

"MR. FARRALL: You're willing to listen to the Court when he instructs you on the law?

"MRS. LOGERWELL: Yes.

"MR. FARRALL: You are willing to make a decision based on the facts as you understand them from the witness stand and based on the law as the judge gives it to you?

"MRS. LOGERWELL: Yes.

"MR. FARRALL: You want to be fair to both sides?

"MRS. LOGERWELL: Yes.

"MR. FARRALL: And to do the right things as you understand them to be?

"MRS. LOGERWELL: Yes."

The jury was thereafter impaneled. Trial commenced on that afternoon. On August 7, 1987, at the conclusion of the trial, the jury was instructed on comparative negligence. The court addressed the issue in the following manner:

"The plaintiff claims the defendant was negligent, and the defendant was the proximate cause of the injury to the plaintiff. The defendant claims the plaintiff was negligent and that plaintiff's negligence, known as contributory negligence was a proximate cause of the injury to the plaintiff.

"Each person is required to use ordinary care to avoid injuring another person, and to avoid injuring himself or herself. Ordinary care is the care that a reasonably prudent person would use under the same or similar circumstances.

"Negligence is a failure to use ordinary care to avoid injuring another person.

"Contributory negligence is a failure to use ordinary care to avoid injuring oneself.

"Proximate cause is an act which in the natural and continuous sequence directly produces the injury, and without which it would not have occurred.

"Cause occurs when the injury is the natural and foreseeable result of the act. There may be more than one proximate cause when a negligent act or failure to act of one party combines with the negligence of another to produce an injury. The negligence of each is a cause.

"Plaintiff has the burden of proving by a preponderance of the evidence that defendant was negligent, and that defendant's negligence was a proximate cause of injury to the plaintiff.

"The defendant has the burden of proving by preponderance of the evidence that the plaintiff was contributorily negligent and plaintiff's contributory negligence was a proximate cause of the injury to the plaintiff.

"I have already instructed you as to the definition of preponderance.

"The plaintiff may recover if you find that the defendant was negligent, and that the defendant's negligence was the proximate cause of the injury to the plaintiff.

"Furthermore, if you find that the plaintiff was contributorily negligent, and the plaintiff's contributory negligence was a proximate cause of her injury, plaintiff may only recover if her negligence does not exceed the negligence of the defendant.

"Where both defendant's negligence and plaintiff's negligence--contributory negligence are proximate causes of plaintiff's injury, and plaintiff's contributory negligence does not exceed d...