Maiorana v. Walt Disney Co.

• Decision Date: 23 December 2021
• Docket Number: 20AP-207
• Citation: 182 N.E.3d 521
• Parties: Joseph MAIORANA et al., Plaintiffs-Appellees/Cross-Appellants, v. WALT DISNEY COMPANY et al., Defendants-Appellees/Cross-Appellees, [True Grip and Lighting, Inc., Defendant-Appellant/Cross-Appellee].
• Court: Ohio Court of Appeals

182 N.E.3d 521

Joseph MAIORANA et al., Plaintiffs-Appellees/Cross-Appellants,

v.WALT DISNEY COMPANY et al., Defendants-Appellees/Cross-Appellees,

[True Grip and Lighting, Inc., Defendant-Appellant/Cross-Appellee].

No. 20AP-207

Court of Appeals of Ohio, Tenth District, Franklin County.

Rendered on December 23, 2021

On brief: Rafidi, Pallante & Melewski, LLC, Jeffrey A. Pallante, Columbus, and Ryan J. Melewski, Cleveland, for plaintiffs-appellees/cross-appellants, Joseph Maiorana, Erin Maiorana, and Nora Maiorana. Argued: Ryan J. Melewski.

On brief: Michael J. McLane, Columbus, for defendant-appellant/cross-appellee, True Grip and Lighting, Inc. Argued: Michael J. McLane.

DECISION

MENTEL, J.

{¶ 1} Defendant-appellant/cross-appellee, True Grip and Lighting, Inc. ("True Grip"), appeals from a March 10, 2020 judgment entry awarding a final jury verdict and costs totaling $263,340.65 to plaintiffs-appellees/cross-appellants Joseph Maiorana, Erin Maiorana, and Nora Maiorana. The Maioranas filed a cross-appeal from the March 10, 2020 entry denying their motion for prejudgment interest without allowing them to conduct discovery.

{¶ 2} For the reasons that follow, we affirm.

I. FACTS AND PROCEDURAL HISTORY

{¶ 3} On November 7, 2015, Mr. Maiorana was working as a sideline still photographer for USA Today during a college football game in Columbus, Ohio between the Ohio State University ("Ohio State") and the University of Minnesota. Ohio State had contracted with ESPN, Inc. ("ESPN") to televise the game. ESPN hired True Grip as a subcontractor to provide a camera cart and driver to assist ESPN in videotaping the football game. CSC was hired by Ohio State, paid by ESPN, to provide security services and operate as "spotters," individuals that assist in keeping the path clear for the camera cart. Ming Entertainment, a contractor of ESPN, provided the cables attaching the video camera for the broadcast.

{¶ 4} During the third quarter of the game, Ohio State elected to punt. Mr. Maiorana was positioned near the 10- or 15-yard line on the visitor sideline toward the open end of the stadium. True Grip's camera cart was positioned behind the visiting team's bench. After the change of possession, Mr. Maiorana walked toward the other end of the stadium. As Mr. Maiorana approached the camera cart, he testified that he looked to see if the camera cart was set to move. Mr. Maiorana stated that he did not hear any spotter or driver indicate that the cart was going to move. Once Mr. Maiorana had passed, the camera cart operator, James Branch, accelerated the cart striking Mr. Maiorana causing injuries to his leg and ACL. Mr. Branch testified that the camera cart operator must make sure the cart path is clear before he hits the gas. Mr. Branch admitted that the camera cart struck Mr. Maiorana and did not blame ESPN, Ohio State, Ming Entertainment, or the spotters.

{¶ 5} On October 27, 2017, the Maioranas filed a complaint against ESPN, the Walt Disney Company, and ABC Sports in the Franklin County Court of Common Pleas. The Maioranas alleged causes of action for negligence and loss of consortium. There is no dispute that the Maioranas did not name "John Doe" or unknown parties as defendants in the complaint. A separate complaint against Ohio State was filed in the Ohio Court of Claims.

{¶ 6} ESPN, Walt Disney, and ABC Sports filed an answer on December 26, 2017. The defendants denied that they operated or controlled the camera cart during the game and that the injuries sustained by Mr. Maiorana were caused by the acts of another party. On January 9, 2018, the defendants filed a third-party complaint against True Grip asserting that True Grip operated the cart and equipment at issue. The defendants alleged that True Grip was obligated by contract to indemnify, defend, save, and hold harmless ESPN from all claims arising from its camera cart driver/operator. On January 18, 2018, the Maioranas filed a third-party complaint, pursuant to Civ.R. 14(A), against True Grip asserting the same allegations that were made against the original defendants.

{¶ 7} On November 13, 2018, True Grip filed a motion for summary judgment against the Maioranas arguing that the statute of limitations had expired. On December 17, 2018, the trial court denied the motion for summary judgment. On March 25, 2019, the Maioranas filed a motion for leave to amend their complaint to substitute True Grip for the Walt Disney Company, ESPN, and ABC. True Grip filed a memorandum in opposition on March 28, 2018. On March 28, 2018, the trial court granted the Maioranas’ motion to substitute True Grip as the sole remaining defendant in the case.

{¶ 8} On March 27, 2019, True Grip filed a second motion for summary judgment arguing that the case should be dismissed as Mr. Maiorana assumed the risk of injury working as a photographer on the sideline of a football game. On March 28, 2019, True Grip filed a "renewed" motion for summary judgment arguing that the statute of limitations had expired in the case. The Maioranas filed a memorandum in opposition on April 5, 2019. On November 29, 2019, the trial court denied True Grip's motions for summary judgment finding that the Maioranas’ claims against True Grip related back to the original complaint pursuant to Civ.R. 15(C). The trial court reasoned that the claims against True Grip originated out of the same occurrence as the original complaint, True Grip was on notice of the incident and the potential claims, and that True Grip knew or should have known that but for the mistaken identity it would have been named as a defendant in the original complaint. The trial court also rejected True Grip's assumption of risk argument stating that the risk of injury from being on the sideline of a nationally televised college football game originated from the field not a camera cart.

{¶ 9} On February 3, 2020, the case proceeded to a jury trial. True Grip moved for a directed verdict at the close of the Maioranas’ case and at the close of its evidence. Both motions were denied. On February 6, 2020, the jury returned a verdict of $390,000, which was reduced to $259,350 after a comparative fault determination by the jury.¹ On March 4, 2020, True Grip filed a series of post-trial motions. On February 12, 2020, the Maioranas filed a motion for prejudgment interest arguing that True Grip failed to make good faith efforts to settle the case. The Maioranas filed subpoenas requesting the insurance claim's file and attorney's file. On March 4, 2020, the trial court conducted a hearing as to the outstanding motions. Relevant to the instant appeal, the trial court denied True Grip's motions, granted the Maioranas’ motion for costs for those depositions used at trial, and denied the Maioranas’ motion for prejudgment interest.

{¶ 10} The final judgment entry was filed March 10, 2020. True Grip filed a timely appeal on April 8, 2020. The Maioranas filed a cross-appeal on April 17, 2020.

II. ASSIGNMENTS OF ERROR

{¶ 11} True Grip assigns the following as trial court error:

1. Trial court erred in denying True Grip's Motion for Summary Judgment in its Decision and Entry of December 17, 2018.

2. Plaintiff failed to comply with the applicable statute of limitations in filing his complaint, as applied to Defendant, True Grip.

3. Trial Court erred in deciding Plaintiff's untimely Third-Party Complaint relates back to the filing of the original complaint.

4. The Trial Court erred in granting Plaintiffs’ Motion to Substitute True Grip and Lighting, Inc., as Proper Party Defendant in its Decision and Entry on March 28, 2019 and in denying True Grip's Summary Judgment Motions.

5. The Trial Court improperly allowed the Plaintiff to substitute True Grip for ABC, ESPN and Disney.

6. The Trial Court erred in its Decision and Entry of November 29, 2019, denying the True Grip Motions for Summary Judgment filed March 28, 2019 and March 27, 2019.

7. The Trial Court improperly denied True Grip's Motion for Summary Judgment that Plaintiff assumed the risk of his injuries by accepting a game time field pass from OSU and proceeding to work on the field during the football game when he was injured by a known risk that was necessary for the game, as a televised contest.

8. The Trial Court erred in denying Defendant's Motions for Directed Verdict and the close of Plaintiff's case, and at the close of Defendant's evidence.

9. The Trial Court refused to provide Jury Instructions and Jury Interrogatories, under ORC 2307.23, as to claims of liability against unnamed third parties, despite Appellee having a pending case in The Ohio Court of Claims and the evidence proffered to the Court, as well as the testimony of Appellee, Mr. Saban, Mr. Corcoran and Mr. Penner, and other testimony adduced regarding the role of other non-parties in the Appellee's accident.

10. It was an abuse of discretion for the Trial Court allowed the prejudicial use of exhibit 22, which was not disclosed by Plaintiff until January 31, 2020, when the discovery deadline was December 1, 2019, resulting in an award of lost income beyond the previous claim of lost income in an interrogatory that was never supplemented by Appellee.

11. The Trial Court allowed evidence of gross income figures to be presented to the jury without the proper testimonial or evidentiary foundation, in the form of Plaintiff's testimony as to amounts of lost income and Exhibit 22 and expert testimony.

12. The Trial Court awarded Plaintiff additional and duplicative deposition and other fees that were improperly taxed as costs.

(Sic passim.)

{¶ 12} The Maioranas assign the following as trial court error:

1. The trial court abused its discretion by ruling on a motion for prejudgment interest without first allowing plaintiff to conduct discovery.

III. LEGAL ANALYSIS

A. True Grip's First, Second, Third, Fourth, and Fifth Assignments of Error

{¶ 13} In True Grip's first five assignments of error, it alleges that the trial court erred at various stages in this litigation allowing the...