Burke v. Schaffner, 96APE04-507
| Decision Date | 22 October 1996 |
| Docket Number | No. 96APE04-507,96APE04-507 |
| Citation | 683 N.E.2d 861,114 Ohio App.3d 655 |
| Parties | BURKE et al., Appellants, v. SCHAFFNER, Appellee. * Tenth District, Franklin County |
| Court | Ohio Court of Appeals |
Plymale & Associates, and John N. Gonzales, Columbus, for appellants.
Law Office of Alan Wayne Sheppard, Alan Wayne Sheppard and Andrew D. Wachtman, Columbus, for appellee.
On October 4, 1994, Gary Burke and his wife, Tammy Burke, filed a complaint in the Franklin County Court of Common Pleas, naming Kerri Schaffner as the lone defendant. The lawsuit arose as a result of serious injuries sustained by Gary Burke on October 26, 1993, when he was struck by a pickup truck driven by Martin Malone, with whom the Burkes settled prior to commencing litigation. The incident occurred during a party held for officers of the City of Columbus Division of Police, Eighth Precinct.
There is no dispute between the parties that the pickup truck accelerated suddenly, causing Mr. Burke to be pinned between it and a parked car. The Burkes' complaint alleged that Schaffner, who was seated directly beside the driver, negligently stepped on the accelerator as she moved over on the front seat to make room for two other passengers getting into the truck.
Prior to trial, counsel for Schaffner filed a motion for summary judgment. Appended to the motion was an affidavit in which she stated, "At no time while I was in the vehicle did my foot hit the accelerator * * *." In their memorandum contra, the Burkes relied upon deposition testimony of Malone, which included his denial of fault and resulting conclusion that Schaffner must have stepped on the accelerator. In a decision rendered August 24, 1995, the trial court denied the motion, holding that there existed a genuine issue of material fact as to who hit the accelerator.
The case proceeded to a trial by jury on March 11, 1996. Essentially, plaintiffs' theory, based in large part upon Malone's testimony, was that Schaffner stepped on the accelerator. To the evident surprise of plaintiffs' counsel, the defense rested without calling any witnesses, including Schaffner herself. Plaintiffs' counsel unsuccessfully attempted to reopen their case or, alternatively, to call the defendant as a "rebuttal" witness.
On March 14, 1996, the jury returned a verdict in favor of Schaffner. The jury's response to an interrogatory submitted with the verdict forms indicated the jury's express finding that Schaffner was not negligent.
Gary Burke and Tammy Burke ("appellants") have timely appealed, assigning seven errors for our consideration:
Because the seventh assignment of error raises issues attacking the jury selection process and, thus, is potentially dispositive of the appeal, we address this alleged error first.
Appellants contend that the trial court committed two prejudicial errors during voir dire. First, appellants argue that the trial court erred in restricting the questioning of potential jurors regarding the so-called "insurance crisis" and the "negative publicity surrounding recent plaintiff verdicts." Second, appellants argue that the court erred in excusing for cause a deaf juror.
Preliminarily, we note the narrow standard of review by which we are bound in reviewing the claimed voir-dire errors. The scope of voir dire falls within a trial court's discretion and varies with the circumstances of a particular case. State v. Lundgren (1995), 73 Ohio St.3d 474, 481, 653 N.E.2d 304, 314-315, citing State v. Bedford (1988), 39 Ohio St.3d 122, 129, 529 N.E.2d 913, 920-921. Rarely does a reviewing court find a trial court's restrictions on voir dire to be an abuse of discretion. Lundgren, citing State v. Beuke (1988), 38 Ohio St.3d 29, 39, 526 N.E.2d 274, 285-286. The test is one of reasonableness. Beavercreek Local Schools v. Basic, Inc. (1991), 71 Ohio App.3d 669, 682, 595 N.E.2d 360, 368-369.
Our review of the transcript reveals that the trial court actually allowed appellants' counsel considerable latitude in his voir dire. Counsel was permitted to voir dire jurors at length regarding their perceptions of the judicial system in general and "frivolous lawsuits" in particular, whether they had ever been sued and whether they had ever sued another person or made any claim for any type of injury. The only actual limitation disclosed by the record was related to the so-called "McDonald's coffee" case. The trial court granted appellants' counsel more than ample opportunity and latitude during this line of questioning. Because the trial court imposed extremely reasonable and minimal restrictions on voir dire, we find no abuse of discretion.
The second part of this assignment of error alleges error by the trial court in excusing for cause a deaf juror. Again, we are bound in our review by an abuse of discretion standard. See Berk v. Matthews (1990), 53 Ohio St.3d 161, 559 N.E.2d 1301, syllabus. In this respect, "abuse of discretion" implies that the trial court acted "unreasonably, arbitrarily or unconscionably." Sowers v. Middletown Hosp. (1993), 89 Ohio App.3d 572, 581, 626 N.E.2d 968, 974, citing Rigby v. Lake Cty. (1991), 58 Ohio St.3d 269, 569 N.E.2d 1056. Under the particular circumstances presented below, the trial court did not abuse its discretion.
R.C. 2313.42 sets forth the basic qualifications of persons to serve as jurors, in addition to specific grounds for challenging for cause those otherwise qualified. Appellants contend that there was no "legal cause" to excuse the deaf juror since he met those basic qualifications and expressly avowed that he would be fair and impartial and essentially would be able to follow the law. R.C. 2313.42(J).
Appellee counters that the trial judge acted well within his discretion in excusing the juror for cause due to certain practical concerns the juror might have in "following the law." Specifically, appellee points to the trial judge's expressed concerns regarding the litany of potential difficulties which could arise as a result of the following: the juror's ability to read lips, the juror's inability to assess the demeanor of witnesses, the necessity of having an interpreter conveying the testimony to him and related interruptions during trial, the juror's problem participating in group discussions, and complications stemming from an interpreter's participation in the deliberations process.
Our review of the voir dire transcript reveals that, while the trial court did indeed express these concerns, which we are not prepared to sanction as legitimate challenges for cause, the court's decision to excuse the juror was ultimately based upon the unavailability of an interpreter to assist the juror. Since the trial court did not act unreasonably or arbitrarily, we cannot say that the court abused its discretion.
Having found no abuse of discretion in voir dire, the seventh assignment of error is overruled.
In their first assignment of error, appellants argue that the trial court erred in failing to grant their motion for a directed verdict. Specifically, appellants reason as follows. They "proved" that Schaffner was one of only two persons who could have negligently harmed Burke. The only other potentially responsible person, Martin Malone, called by appellants as a witness, testified that he did not step on the accelerator. Thus, since Schaffner failed to present any evidence to overcome her burden to demonstrate that she did not cause the harm, appellants should have been granted a directed verdict.
In addressing this specific contention, appellants necessarily incorporate issues pertaining to the doctrine of alternative liability, the subject of their second assignment of error. Thus, we address these arguments jointly.
Preliminarily, we note the well-established standard to be applied by a trial court in ruling on a Civ.R. 50(A) motion for a directed verdict. In Posin v. A.B.C. Motor Court Hotel (1976), 45 Ohio St.2d 271, 275, 74 O.O.2d 427, 429-430, 344 N.E.2d 334, the Supreme Court of Ohio stated:
See, also, Nickell v. Gonzalez (1985), 17 Ohio St.3d 136, 137, 17 OBR 281, 281-282, 477 N.E.2d 1145, 1146-1147, and Mantua Mfg. Co. v. Commerce Exchange Bank (1996), 75 Ohio St.3d 1, 4, 661 N.E.2d 161, 164.
As discussed below, the evidence, construed...
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