Jordan v. Elex, Inc.
| Decision Date | 19 August 1992 |
| Docket Number | No. C-910223,C-910223 |
| Parties | JORDAN et al., Appellants and Cross-Appellees, v. ELEX, INC., Appellee; City of Cincinnati, Appellee and Cross-Appellant; Langenheim and Thomson Company et al. * |
| Court | Ohio Court of Appeals |
Gary M. Stern, Steubenville, for plaintiffs-appellants and cross-appellees.
Edward P. Brueggeman, Cincinnati, for defendant-appellee Elex, Inc.
Fay D. Dupuis, City Solicitor, and William M. Gustavson, Cincinnati, for defendant-appellee and cross-appellant city of Cincinnati.
On March 3, 1987, plaintiff-appellant Lauren S. Jordan was injured while she was crossing Vine Street at the crosswalk in the middle of the block between Sixth and Seventh Streets. The week before the accident, portions of the street surface had been excavated in connection with defendant-appellee city of Cincinnati's ("city") improvement project known as "The Cincinnatian Hotel Streetscape Project." Large steel plates weighing between 1,000 and 1,500 pounds were laid across the street, including the crosswalk area, by defendant-appellee Elex, Inc. ("Elex"), an electrical subcontractor on the project. When traffic passed over the plates, they bounced. In order to minimize the movement of the plates and to reduce the resulting noise, the plates were secured with metal pins and triangular wooden wedges. Eventually, the flow of traffic over the plates caused the wedges to become loose and the plates would have to be rewedged. On the evening before Lauren Jordan was injured, Elex had rewedged the plates at the request of a city public works inspector.
On the morning she was injured, Lauren Jordan entered the crosswalk heading west across Vine Street, a one-way northbound street. As she stepped into the street, she noticed a bus coming up Vine Street. There is a dispute as to whether Lauren Jordan stepped back and waited for the bus to clear or continued to walk towards the rear of the bus. The bus struck the corner of a steel plate, causing it to bounce into the air and land on Lauren Jordan's left foot. The plate had to be pried off her foot. Her injuries required the complete amputation of the great toe and the removal of most of the second toe on Lauren Jordan's left foot.
Appellants Lauren and Robert L. Jordan filed the within complaint on October 27, 1988, seeking damages for personal injuries and loss of consortium. Elex failed to answer and appellants moved for a default judgment. Following a hearing, a referee recommended that a default judgment be entered against Elex in the amount of $2,500,000. The trial court rejected the referee's report in part and granted a default judgment against Elex only on the issue of negligence.
Trial on appellants' claims against Elex and the city commenced December 3, 1990, all other defendants having been previously dismissed. Following the presentation of evidence, the trial court held, and subsequently instructed the jury, that Lauren Jordan was negligent as a matter of law in proceeding into the crosswalk. The jury, in answer to interrogatories, found appellants' total damages to be $101,000. The jury further entered general verdicts for both defendants, assigning the negligence as follows: Lauren Jordan sixty-eight percent, Elex nineteen percent and the city thirteen percent. Appellants' motions for judgment notwithstanding the verdict and for a new trial were overruled by the trial court. Both defendants filed motions to tax certain costs to appellants. The trial court granted Elex $2,276.05 and the city $800.65 in costs. Appellants timely appealed.
Appellants' first assignment of error alleges the trial court erred in overruling their motion for judgment notwithstanding the verdict against Elex. In support of their motion for judgment notwithstanding the verdict, appellants argued that on April 24, 1989, the trial court entered a default judgment against Elex on the issue of liability, and, therefore, the trial court erred in permitting Elex to assert comparative negligence to limit or negate its liability for damages.
The trial court's entry of April 24, 1989 provides:
In its entry denying appellants' motion for judgment notwithstanding the verdict, the trial court interpreted the April 24, 1989 entry as providing that Elex could assert "the defenses of comparative negligence, failure to mitigate, proximate causation and related issues." The court also noted that "all relevant issues were fully and fairly tried to a jury." Further, in ruling on appellants' motion for a directed verdict during trial, the judge stated that the court had not previously decided the issues of foreseeability or proximate cause.
We find no error in the trial court's interpretation of the April 24, 1989 entry. In addition, that interpretation is consistent with the conduct of all parties at trial. Therefore, the first assignment of error is overruled.
Appellants' second assignment of error alleges the trial court erred in instructing the jury that Lauren Jordan was negligent as a matter of law.
At trial, there was testimony that the hazardous nature of the crosswalk area, including the metal plates, was open and obvious. Lauren Jordan testified that she was aware the plates were uneven, made noise, and moved when traffic passed over them. Based upon this evidence, the trial court directed a verdict against appellants on the issue of Lauren Jordan's negligence, holding that she was negligent as a matter of law because she voluntarily stepped into an area which was openly and obviously dangerous.
Appellees argue that the danger was so obvious that Lauren Jordan was negligent as a matter of law in proceeding into the crosswalk. We reject this argument. While the condition of the crosswalk may have been open and obvious, there was some question as to whether Lauren Jordan fully appreciated the danger of the moving metal plates. Appellees knew that the plates moved and bounced when traffic passed over them, yet the city made the decision to keep the crosswalk open, inviting the public to use it. It would certainly be reasonable for a pedestrian to assume that if the crosswalk was so hazardous that one should not enter it, the crosswalk would have been closed. Under these circumstances, it cannot be said that Lauren Jordan was negligent as a matter of law in entering the crosswalk.
In addition, there is conflicting testimony as to Lauren Jordan's actions prior to the time she was injured. She testified that when she saw the bus approaching, she stopped and stepped back. Other witnesses testified that she was walking towards the rear of the bus when the accident occurred.
Based upon our review of the record, we hold that the issue of Lauren Jordan's negligence was a question of fact for the jury to resolve in light of all the surrounding circumstances. The second assignment of error is sustained.
For their third assignment of error appellants allege:
"The trial court erred to the prejudice of appellants by instructing the jury, over appellants' objection, as to the city crosswalk ordinances."
The evidence concerning whether Lauren Jordan was within the crosswalk at the time of her injury was conflicting. The trial court gave the following instructions to the jury at the city's request:
The jury instructions defined "crosswalk" as set forth in the Cincinnati Municipal Code and correctly stated that pursuant to municipal ordinance, pedestrians are required to cross the street in a crosswalk. Further, the instructions correctly informed the jury that if they found Lauren Jordan had attempted to cross the street outside the crosswalk, they were entitled to consider (1) whether such action constituted ordinary care; (2) whether that action was a proximate cause of her injuries; and (3) whether she could have avoided the injury by using the crosswalk. Certainly, the determinations of whether Lauren Jordan had violated the city crosswalk ordinance, in the absence of ordinary care for her own safety, and whether the violation was a proximate cause of her injury were essential to an assessment of the comparative negligence of the parties.
We find no error in the trial court's instructions to the jury. The third assignment of error is overruled.
Appellants' fourth assignment of error alleges the trial court erred in...
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