Howard v. Seidler
| Decision Date | 04 December 1996 |
| Docket Number | No. 94,94 |
| Citation | 116 Ohio App.3d 800,689 N.E.2d 572 |
| Parties | HOWARD, Admr., Appellant and Cross-Appellee, v. SEIDLER, Appellee; Dattilo et al., Appellees and Cross-Appellants. * C.A.70. Seventh District, Mahoning County |
| Court | Ohio Court of Appeals |
James L. Messenger, Youngstown, Bernard D. Marcus and Scott D. Livingston, Pittsburgh, PA, for appellant and cross-appellee.
John C. Pfau, Youngstown, for appellee Laura C. Seidler.
Charles L. Richards, Warren, for appellee and cross-appellant David Dattilo.
William M. Oldham, Akron, for appellee and cross-appellant James Hall.
Plaintiff-appellant, Debra H. Howard, administrator of the estate of her son, Vencinn I. Howard, appeals from a judgment entered upon a jury verdict in this wrongful death and survivor action.
On October 17, 1990, Vencinn I. Howard, then eleven years of age, was struck by a car and killed. The evidence at trial established that, on the evening in question, Vencinn had attended a football game at Fitch High School stadium in Austintown, Ohio. Shortly after 8:00 p.m., Vencinn began walking toward the Westchester apartments, located off Idaho Road, where he lived.
On his way home, Vencinn met and talked with a girl, Shayna Jenkins, outside Watson Elementary School. As Vencinn was talking with Shayna, a number of older, white teenagers appeared and began taunting Vencinn and Shayna with racial and sexual slurs. At some point, one or more of the teenagers began chasing Vencinn, who was black. Vencinn subsequently ran out into the middle of Idaho Road and was struck by a car being driven by defendant-appellee Laura Seidler. Vencinn died approximately one hour later due to massive internal injuries.
Appellant subsequently filed a wrongful death and survival action against appellee Seidler and against the seven teenagers who had allegedly been involved in chasing Vencinn. Prior to trial, appellant received $101,000 in settlement with defendant Michael A. Morgan and $9,000 in settlement with defendant April Demler. Appellant later elected not to proceed against defendants Wayne King and Heather Reese.
A jury trial began on January 25, 1994 on appellant's claims against appellee Seidler and against defendants-appellees/cross-appellants David Dattilo, James L. Hall, and Richard Sheppard.
Prior to opening statements, the parties stipulated to the admissibility of the police report of the accident. The next day, counsel for appellant and counsel for appellee Seidler went on the record and agreed that references to insurance on the police report would be deleted. At that time, the court indicated that appellant's oral motion in limine was granted. However, the record at page 27 of the transcript does not in any way reflect the grounds of appellant's oral motion in limine or with what the motion in limine was concerned.
During opening statements, counsel for appellee Seidler made reference to the police report and stated that there was no suggestion in the report that Seidler's speed was unreasonable or excessive and that there was no indication in the report that Seidler had contributed to causing the accident.
After the start of trial, the parties met out of the presence of the jury and argued as to the exact terms of appellant's oral motion in limine. Appellant's counsel argued that, in his oral motion in limine, he had intended to request that all references to any citations or lack of citations in the police report be excluded at trial. According to appellant's counsel, this included any reference at all to conclusions made by the police officers. Conversely, counsel for appellees argued that while they had agreed not to make mention of the fact that there were no citations issued, there had been no stipulation on conclusions made by the police. Ultimately, the trial court ruled that all conclusions in the report were admissible.
At trial, appellant alleged that Seidler had negligently failed to keep a proper lookout and had failed to obey the speed limit. Seidler's principal defense was that even if she had been negligent, the accident was unavoidable. To rebut this defense and prove that the accident was avoidable, appellant presented the testimony of a lighting expert, Walter Kosmatka, and an accident reconstruction expert, Professor David L. Uhrich.
Kosmatka testified that he performed a lighting analysis of the scene in order to determine the distance from Idaho Road where Seidler could have first seen or detected Vencinn. Kosmatka testified that he had originally determined that, based upon his observations of the scene and assuming that Vencinn was wearing a white shirt, Seidler could have first seen Vencinn at least 222 feet, and possibly as far back as 305 feet, away as she drove down Idaho Road. Later on, Kosmatka gave the following testimony:
On cross-examination, Kosmatka gave the following testimony:
Based upon Kosmatka's testimony as to the range of detection distance, appellant then asked Professor Uhrich to give an opinion as to whether the accident could have been avoided had Seidler merely taken her foot off the accelerator for an instant when she could have first seen Vencinn. Upon objection by Seidler's counsel, the trial court prevented Uhrich from using Kosmatka's maximum detection distance of 305 feet:
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