Doreen Romanoff v. City of Mansfield, Ohio, 81-LW-2280

• Decision Date: 08 July 1981
• Docket Number: 81-LW-2280,CA-1960
• Parties: DOREEN ROMANOFF, et al., Plaintiffs-Appellees, v. CITY OF MANSFIELD, OHIO, Defendant-Appellant. CASE
• Court: Ohio Court of Appeals

DOREEN ROMANOFF, et al., Plaintiffs-Appellees,
v.
CITY OF MANSFIELD, OHIO, Defendant-Appellant.

No. CA-1960.

81-LW-2280 (5th)

Court of Appeals of Ohio, Fifth District, Richland

July 8, 1981

MR. JAMES J. O'DONNELL, MR. ARTHUR NEGIN, 3 NORTH MAIN STREET, MANSFIELD, OHIO 44902 ATTORNEYS FOR PLAINTIFFS-APPELLEES.

MR. CHARLES D. LYNCH, ASSISTANT LAW DIRECTOR, CITY OF MANSFIELD, MANSFIELD, OHIO 44902 ATTORNEY FOR DEFENDANT-APPELLANT.

OPINION

Before Hon. Robert E. Henderson, P.J., Hon Norman J. Putman, J., Hon. John R. Milligan, J.

HENDERSON, P.J.

This is an appeal from a judgment of the Common Pleas Court of Richland County, Ohio, based upon a jury verdict granting Plaintiffs-Appellees $15,000.00 for injuries resulting from an automobile accident when a catch basin in the traffic lane of the main thoroughfare of Park Avenue West, Mansfield, Ohio, collapsed.

Defendant-Appellant raises the following Assignments of Error:

I. THE VERDICT OF THE JURY WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE

II. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT CITY OF MANSFIELD IN ADMITTING EVIDENCE OF ACCIDENTS WHICH TOOK PLACE SUBSEQUENT TO THE ACCIDENT WHICH WAS THE SUBJECT OF APPELLEE'S CLAIM

III. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT BY FAILING TO GIVE COUNSEL AN OPPORTUNITY TO OBJECT TO THE CHARGE TO THE JURY BEFORE THE JURY RETIRED TO DELIBERATE

IV. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT BY OVERRULING ITS MOTION FOR A DIRECTED VERDICT AT THE CLOSE OF PLAINTIFF-APPELLEE'S EVIDENCE

V. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT BY OVERRULING ITS MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT AND/OR FOR A NEW TRIAL.

The evidence in this case indicated that a catch basin in the traffic lane of the main thoroughfare of Park Avenue West, State Route 430, in the downtown business section of Mansfield, collapsed and Plaintiff-Appellee Doreen Romanoff, was severely injured. The evidence further indicated that her automobile fell into the cavity and then over it, and that her head struck the ceiling of the automobile.

The evidence further indicated that the pit was approximately seven feet deep and approximately 2 1/2 feet wide by five feet long and was covered by two cast iron grates running perpendicular with the traffic.

The evidence further indicated that this storm sewer catch basin was in the traffic lane and not at the curb lane and that its purpose was to drain the water that came down the hill from the intersection of Bowman Street. Said catch basin was not moved to the curb lane when the street was widened in 1963.

The evidence further indicated that no one knew the exact age of this particular catch basin, and that most catch basins built by the City of Mansfield are constructed with a 12 inch deep concrete collar on top with an iron grate snugly resting in a lip built into the concrete. The testimony indicated that this municipality does not use iron frames in the construction of its catch basins.

The evidence further indicated that there was a difference of opinion between Plaintiff-Appellee's engineer and Defendant-Appellant's engineer as to the merits of frame-built catch basins. These witnesses also disagreed over the propriety of having a catch basin in the traveled portion of the street.

There was also evidence in the case that there was no way to predict how long a given catch basin was going to stay in good repair. There was testimony presented that even if there were an annual inspection of catch basins, it would be possible for the catch basins to deteriorate without prior warning.

On November 21, 1977, the evidence was that sewer repair employees for the City of Mansfield were in the vicinity of the intersection of Park Avenue West and Mulberry Street in order to locate a manhole which had been inadvertently paved over. At that time, the evidence indicated, that two employees visually inspected the catch basin which is the subject matter of this case. On that date, at least, the catch basin had no misalignment of grates and did not rattle when run over by traffic. The evidence was that this rattle was the usual sign of deterioration.

The evidence further indicated that one of the eastbound lanes of travel on Park Avenue West was barricaded while the city searched for the manhole and that all traffic was routed into a lane of travel which made it necessary for all eastbound vehicular traffic to travel over the subject catch basin. The evidence indicated that traffic ran over this catch basin for approximately five consecutive days and during that time nothing unusual was observed or heard by the two city employees who testified at the trial.

The evidence further indicated that the City of Mansfield does not have any standard operating procedure with regard to the inspection of catch basins.

Further evidence indicated that this catch basin was in the downtown section of Mansfield and had a traffic pattern of 15,000 vehicles per day. There was further evidence presented by two young men who worked at a service station on the corner of Park Avenue West and Mulberry Street to the effect that there had been a rattle or a rumble of the catch basin for at least seven and perhaps ten days before the accident, and one of these men who worked at the filling station testified that he had had to repair tires when beads would be damaged as a result of going over the catch basin.

There is no evidence in the case to indicate the City of Mansfield had ever been apprised of the fact that there was a problem with this catch basin at this particular location. The evidence presented, established that the catch basin grate gave way because the south wall of the catch basin, beneath the grate began to deteriorate which caused the concrete lip supporting the grate to give way.

This case was tried to a jury on October 23, October 24, and October 28, 1980. Said jury returned a verdict in favor of thePlaintiffs-Appellees in the amount of $12,500.00 for Plaintiff-Appellee Doreen Romanoff and $2,500.00 for Plaintiff-Appellee Stanley M. Romanoff, Jr. A motion for judgment notwithstanding the verdict and/or for a new trial was filed by Defendant-Appellant and was overruled by the Trial Court.

We proceed to rule on Defendant-Appellant's second and third Assignments of Error first, the first, fourth and fifth Assignments of Defendant-Appellant all being directed to the same issue in this case which is whether the City of Mansfield is liable in nuisance to Plaintiffs-Appellees herein.

II.

Defendant-Appellant's second Assignment of Error is that the Trial Court erred to the prejudice of the Appellant, City of Mansfield in admitting evidence of accidents which took place subsequent to the accident which was the subject of Appellees' claim.

We sustain Defendant-Appellant's second Assignment of Error. From a reading of the transcript, we determine that on two separate occasions during this trial, the court admitted evidence of a subsequent accident to the accident of Plaintiff-Appellee, Doreen Romanoff. Volume 1 of the transcript, Pages 42-43 indicates that the court permitted a gasoline station attendant near the scene of the accident involved in this lawsuit to testify that shortly after January 13, 1980 and at a time after Plaintiff-Appellee's accident, a gentleman fell into the hole which had been dug by city work crews in order to repair the catch basin. Plaintiffs-Appellees' witness, Roger Sqrow, testified in response to a question as follows: (Volume 1, Transcript, pages 42-43)

"Q. Were there any other incidents with that grate at that time?

A. Well, at one time - -

MR. LYNCH: Object.

A. No.

Q. Wait a minute. He objected.

THE COURT: Overruled. You may answer.

A. At one time there was no barricade along the edge of the sidewalk, and there was a gentleman walking down the street and it had been snowing and, you know, it was drifting like you couldn't tell it was open. He dropped off into the hole and we went out and helped him out of the hole."

On cross-examination, the following information was elicited from the same witness:

"Q. You had indicated that someone fell into a hole; that was after January 13, 1978?

A. Yes, sir.

Q. It has nothing to do with this accident?

A. No, sir."

Again, at Volume 1 of the transcript, Page 48, J. Halvax, another gas station attendant, was asked by counsel for the Plaintiffs-Appellees the following:

"Q. Is there anything about this incident that you know that you could tell this jury to help them decide this case?

A. It was a day, two days afterward, they had barricaded around the grate in the street, but not on the sidewalk; and a man walked into it.

MR. LYNCH: Objection. Ask it be stricken.

THE COURT: Hold it. What grounds?

MR. LYNCH: It is irrelevant.

THE COURT: I'm going to admit it; let it stand."

Evidence of a subsequent accident after remedial measures have been undertaken by a Defendant is of no consequence to the determination of this action. Generally, testimony of conditions subsequent to an accident is not admissible unless evidence is presented which shows that conditions were substantially the same on both dates. Where there is a substantial change of conditions between the incidents, evidence of the subsequent condition is not admissible. (See Heldman v. Uniroyal, Inc., 53 Ohio App. 2d 21, 371 NE 2d 557.

The evidence on this subject should not have been admitted by the trial court and was prejudicial to the Defendant-Appellant. Testimony of this type tends to inflame and arouse the passion of a jury and should not have been admitted by the court. This also is not error which is harmless under Rule 61 of the Ohio Rules of Civil Procedure which states:

"No error in either the admission or the exclusion of evidence and no error or

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