Fantozzi v. Sandusky Cement Prod. Co.

• Decision Date: 09 September 1992
• Docket Number: No. 91-1169,91-1169
• Citation: 64 Ohio St.3d 601,597 N.E.2d 474
• Parties: FANTOZZI et al., Appellees and Cross-Appellants, v. SANDUSKY CEMENT PRODUCTS COMPANY, Appellant and Cross-Appellee, et al.
• Court: Ohio Supreme Court

Page 601

64 Ohio St.3d 601

597 N.E.2d 474

FANTOZZI et al., Appellees and Cross-Appellants, v. SANDUSKY CEMENT PRODUCTS COMPANY, Appellant and Cross-Appellee, et al.

No. 91-1169.

Supreme Court of Ohio.

Submitted April 29, 1992.

Decided Sept. 9, 1992.

SYLLABUS BY THE COURT

1. It is reversible error for a trial court to order a prerecorded videotape trial over the objections of both parties to an action unless the court reflects in a journal entry that it has, pursuant to C.P.Sup.R. 12(B), consulted with the attorneys for the parties and considered the costs involved, the nature of the action and the nature and amount of testimony, that these factors taken together indicate a compelling reason to conduct the trial by videotape and that no cognizable prejudice will be suffered by the parties. (Civ.R. 40, applied; C.P.Sup.R. 12[B], construed and applied.)

2. Where an individual suffers personal injuries, the question of damages for "loss of ability to perform the plaintiff's usual functions" may, when evidence thereon has been adduced, be submitted to the jury in an instruction, and set forth in a special interrogatory and separate finding of damages, provided, however, that the court instructs the jury that if it awards such damages, it shall not award additional damages for that same loss when considering any other element of damages, such as physical and mental pain and suffering.

On January 25, 1986, defendant-appellant and cross-appellee, Sandusky Cement Products Company ("Sandusky Cement"), through its employee-agent, Daniel Mulvin, delivered and offloaded ready mix concrete from a truck onto the premises of the New Departure Hyatt Bearings Division of General Motors located in Sandusky, Ohio. Plaintiff-appellee and cross-appellant, Peter A. Fantozzi, was involved in spreading and finishing the concrete that was offloaded from the truck.

The concrete was offloaded by means of metal chutes that were made in sections which connected to form a continuous chute. According to Fantozzi, at least one section of the metal chutes being used by Sandusky Cement was warped out of shape so that it could not properly connect to the other sections. Fantozzi alleges that as a direct and proximate result of the reckless, willful and wanton negligence of Sandusky Cement and the other defendants (Henry Hoover, Daniel Mulvin and Chuck Mulvin), a warped chute fell and struck him, causing physical injury, pain and suffering, and preventing him from pursuing his employment.

Fantozzi sought medical treatment for his claimed injuries on several occasions. Specifically, on the day of the injury he went to the plant infirmary, but then returned to the job site until work was completed. On January 27, 1986, Fantozzi visited a Dr. Gillette, who prescribed pain medication and physical therapy for his problem. Subsequently, while vacationing in Florida, Fantozzi complained of pain in his neck, shoulders and arm. Consequently, Fantozzi sought treatment at Memorial Hospital in Ormond Beach, Florida. Upon his return to Ohio, Fantozzi was admitted first to Providence Hospital by Dr. Gillette and then to Good Samaritan Hospital by a Dr. Rist, who prescribed traction and therapy. Fantozzi was also treated by James R. Berry, M.D., who prescribed a traction device and a TENS unit to be used at home. Dr. Berry referred Fantozzi to a neurosurgeon, Fred A. Brindle, M.D., who had Fantozzi consult with a Dr. Brausch. Dr. Brindle conducted a cervical myelogram on Fantozzi and Dr. Brausch conducted an electromyogram. Fantozzi was also examined by a neurologist, Dr. Herbert S. Bell, who could not alleviate his symptoms. Finally, Dr. Brindle referred Fantozzi to Firelands Hospital for pain management, which taught him how to cope with his pain on a day-to-day basis.

Fantozzi's treating physician, Jonathan Ford Diller, M.D., determined that Fantozzi was totally, permanently impaired such that he would not be able to return to any form of employment involving significant physical exertion. Moreover, Dr. Diller concluded that Fantozzi's injury was caused by the collapse of the cement chute.

On July 6, 1988, Fantozzi, along with his wife, plaintiff-appellee and cross-appellant Nancy Fantozzi, filed a second amended complaint with a jury demand alleging reckless, gross, willful, wanton and negligent conduct by Sandusky Cement and its agents, which caused the injury to Mr. Fantozzi. Furthermore, Mrs. Fantozzi alleged that defendants' acts deprived her of the services, aid, love and companionship of her husband in the past, present and future. On December 28, 1988, the trial court assigned the case for a videotape trial pursuant to Civ.R. 40, C.P.Sup.R. 12(B) and Loc.R. 15 of the Court of Common Pleas of Erie County, and allowed counsel for both sides to raise "any serious objections" within ten days.

On January 6, 1989, both sides filed joint objections to the videotape trial order. The objections stated, inter alia, that Mr. Fantozzi could not finance the cost of the videotape depositions; that due to the nature of the factual issues, the videotape format would not provide the jury with a complete opportunity to judge the credibility of the witnesses as to body language, attitude and appearance; and that attorneys for both sides had heavy trial schedules which made it impossible to adequately prepare for the videotape trial schedule assigned by the court. All parties requested that the trial proceed as originally scheduled, and not as a videotape trial.

The trial court never ruled on these objections, and on January 26, 1989, the parties agreed to a modification of the original videotape trial schedule. The videotape trial commenced on April 24, 1989 and lasted through May 1, 1989. On May 1, 1989, the jury returned a general verdict for Mr. Fantozzi in the amount of $744,120. Mrs. Fantozzi received $40,000 for loss of consortium. The jury determined in a special interrogatory that Mr. Fantozzi's damages were Past medical expenses: $14,000

Past lost wages: $120,120

Past pain and suffering: $25,000

Past loss of life's enjoyment: $25,000

Future medical expenses: $60,000

Future lost wages: $400,000

Future pain and suffering: $60,000

Future loss of life's enjoyment: $40,000

Moreover, the jury found Mr. Fantozzi to be ten percent negligent, while Sandusky Cement was ninety percent negligent. Thus, the trial court reduced the award proportionately, leaving a total of $669,708 for Mr. Fantozzi and $36,000 for Mrs. Fantozzi.

The court of appeals affirmed the trial court's judgment in part, reversed it in part, and remanded, holding, inter alia, that the trial court did not abuse its discretion in ordering the trial to be conducted by videotape over the objections of the parties. However, the court of appeals held that the trial court did err in instructing the jury that it could take into consideration damages for past and future loss of enjoyment of life. The court reasoned that given the injuries set forth in the complaint, damages for the loss of enjoyment of life would fall within the confines of damages for pain and suffering.

The cause is now before this court pursuant to the allowance of a motion and cross-motion to certify the record.

Crandall, Pheils & Wisniewski and David R. Pheils, Jr., Perrysburg, for appellees and cross-appellants.

Manahan, Pietrykowski, Bamman & DeLaney, Gerald R. Kowalski and William F. Pietrykowski, Toledo, for appellant and cross-appellee.

HOLMES, Justice.

The two issues before this court are whether the trial court committed reversible error when it ordered the parties, when they had objected, to participate in a videotape trial, and whether the trial court committed prejudicial error when it provided the jury with a separate interrogatory concerning damages for past and future "loss of life's enjoyment." For the reasons that follow, we answer the first query in the affirmative and the latter in the negative.

I Videotape Trials

In Sandusky Cement's sole proposition of law, it asserts that a court order to conduct a videotape trial over the objections of both adversarial parties constitutes "an abuse of discretion" by a trial court. In order to thoroughly appreciate the breadth of this issue, a brief background on videotape trials is indicated. The videotape trial format discussed here is not the presentation into evidence at a conventional trial of videotapes of certain evidence such as the testimony of expert witnesses. The videotape trial that we discuss in this case is a trial in which all of the testimony, including that of any expert witnesses, is prerecorded on videotape and later shown to the jury on a video screen. Trial by videotape is a modern process presented as an alternative to traditional trial methods. The basic premise behind such trials is that they save judicial resources by providing a quicker means for bringing a case to trial.

The first videotape trial, McCall v. Clemens, No. 39301, took place in the Common Pleas Court of Erie County, Ohio, on November 18, 1971, under the direction of Judge James L. McCrystal. See Symposium, First Videotape Trial: Experiment in Ohio (1972), 21 Defense L.J. 266; McCrystal, Videotape Trials: Relief for our Congested Courts (1973), 49 Denver L.J. 463. ¹ The McCall videotape trial was conducted with the consent of both parties to the action and in the absence of any statutory or rule standardization. See Symposium, supra, at 268; Staff Note, Civ.R. 40.

In response to McCall, this court, under the direction of then Chief Justice C. William O'Neill (see McCrystal & Young, Pre-Recorded Videotape Trials--An Ohio Innovation [1973], 39 Brooklyn L.Rev. 560, 561), submitted new Civ.R. 40, effective July 1, 1972, which provides that:

"All of the testimony and such other evidence as may be appropriate may be presented at a trial by videotape, subject to the provisions of the Rules of Superintendence." See Staff Note, Civ.R. 40.

Effective September 1, 1972,...