Nelson v. Ford Motor Co.

• Decision Date: 23 July 2001
• Docket Number: No. 99-L-203.,99-L-203.
• Citation: 761 NE 2d 1099,145 Ohio App.3d 58
• Parties: NELSON, Appellant and Cross-Appellee, v. FORD MOTOR COMPANY, Appellee and Cross-Appellant, et al.
• Court: Ohio Court of Appeals

145 Ohio App.3d 58

761 NE 2d 1099

NELSON, Appellant and Cross-Appellee, v. FORD MOTOR COMPANY, Appellee and Cross-Appellant, et al.^*

No. 99-L-203.

Court of Appeals of Ohio, Eleventh District, Lake County.

Decided July 23, 2001.

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Robert W. Kerpsack and Larry E. Coben, for appellant and cross-appellee.

Elizabeth B. Wright and Toni J. Querry, for appellee and cross-appellant.

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WILLIAM M. O'NEILL, Presiding Judge.

Appellant and cross-appellee, Raymond Richard Nelson, appeals from a judgment of the Lake County Court of Common Pleas in a product liability action he filed against appellee and cross-appellant, Ford Motor Company ("Ford"). Following a jury trial, judgment was entered in favor of Ford. The following facts are relevant to a determination of this appeal.

On May 6, 1991, appellant was the front seat passenger in a 1987 Ford Mustang being driven by Gregory Mergen ("Mergen"). Joshua Lanza ("Lanza") was riding in the back seat. The three men were students at Ohio University in Athens, Ohio, and they were returning to the campus after a brief trip home. In the early morning hours on that date, a vehicle traveling in the opposite direction crossed the center line and collided head-on with the Mustang. As a result of the collision, appellant suffered a severe and permanent spinal cord injury. It was disputed whether appellant was wearing the three-point seatbelt that was in the Mustang at the time of the accident.

On March 30, 1993, appellant filed the underlying complaint against Ford, Spitzer Ford, Inc., a local Ford dealer, and Charles Curfman, the driver of the vehicle that caused the collision. All claims against Spitzer Ford and Charles Curfman have since been dismissed. Appellant alleged that the design of the Mustang's restraint system was defective because there was no passenger-side air bag, and because the seatbelt was designed with a comfort feature built into it that allowed for slack in the shoulder-belt portion of the three-point system. Appellant also claimed that Ford had negligently tested the restraint system in the 1987 Mustang. Ford denied all liability.

On August 31, 1993, Ford filed a motion for partial summary judgment with respect to appellant's claim regarding the lack of a passenger-side air bag on the basis that it was preempted by the National Traffic and Motor Vehicle Safety Act and Federal Motor Vehicle Safety Standard 208. The trial court granted partial summary judgment in Ford's favor on this issue, and appellant filed an interlocutory appeal to this court. In Nelson v. Ford Motor Co. (1995), 108 Ohio App.3d 158, 670 N.E.2d 307, this court reversed and remanded the case. The Supreme Court of Ohio then certified a conflict between different districts in Ohio on the issue of air bag preemption. In Minton v. Honda of Am. Mfg., Inc. (1997), 80 Ohio St.3d 62, 684 N.E.2d 648, the Supreme Court of Ohio upheld our decision on this issue. Recently, however, the United States Supreme Court overturned that decision in Geier v. Am. Honda Motor Co. (2000), 529 U.S. 861, 120 S.Ct. 1913, 146 L.Ed.2d 914, holding that "no air bag" claims conflict with Federal Motor Vehicle Standard 208 and are impliedly preempted by the National Traffic and Motor Vehicle Safety Act. Thus, it is clear that appellant cannot prevail on his "no air bag" claim.

Upon remand to the trial court, the case proceeded to trial commencing July 7, 1999. On July 20, 1999, the jury rendered a verdict in favor of Ford. They specifically found that appellant was not wearing a seatbelt at the time of the accident. Judgment was entered on the jury's verdict on July 26, 1999. Juror fees of $1,500 were taxed as costs to Ford, the prevailing party. On August 9, 1999, appellant filed a motion for a new trial. On December 1, 1999, the trial court denied appellant's motion for a new trial.

Appellant timely filed a notice of appeal, and Ford filed a notice of cross-appeal. Appellant has set forth the following assignments of error:

"1. The trial court committed reversible error and violated the requirements of Revised Code Chapter 2313 by using a non-random manner of jury selection.

"2. The trial court erred by preventing counsel from making contemporaneous objects sic during the trial.

"3. The trial court erred by precluding counsel from placing sidebar conferences on the record.

"4. The trial court erred by refusing to instruct the jury on the law of negligence as it applies to products liability claims.

"5. The trial court erred by submitting improper and confusing interrogatories to the jury.

"6. The trial court erred by excluding relevant, probative evidence from both lay and expert witnesses."

Ford has set forth the following assignment of error:

"The trial court erred in taxing juror fees as costs to Ford, the prevailing party."

In the first assignment of error, appellant asserts that the trial court erred, and violated R.C. Chapter 2313, by using a non-random manner of jury selection. Specifically, appellant argues that the verdict needs to be set aside because only those individuals in the jury array whose surnames began with the letters "A" through "M" were selected to be on this particular jury. This resulted from the fact that prospective jurors whose surnames began with the letters "A" through "M" were instructed to be in court in the morning of jury selection while those whose surnames began with the letters "N" through "Z" were instructed to appear in the afternoon, and the jury ended up being impaneled solely from the morning session.

This argument has previously been addressed and rejected by the Twelfth District Court of Appeals in State v. Buell (1985), 29 Ohio App.3d 215, 29 OBR 260, 504 N.E.2d 1161. In Buell, the court pointed out that the Sixth and Fourteenth Amendments to the United States Constitution guarantee a criminal defendant the right to have a jury chosen from a fair cross-section of the community. Id. at 217, 29 OBR at 261-262, 504 N.E.2d at 1162-1163, citing State v. Puente (1982), 69 Ohio St.2d 136, 23 O.O.3d 178, 431 N.E.2d 987. Thus, a jury must be selected without the systematic or intentional exclusion of any cognizable group. Id. at 217, 29 OBR at 261-262, 504 N.E.2d at 1162-1163, citing State v. Malone (1984), 15 Ohio App.3d 123, 15 OBR 214, 472 N.E.2d 1122. Minor or technical defects in the jury selection process will not warrant reversal of a judgment unless "prejudice to the defendant or the systematic and intentional exclusion of a group is shown." State v. Strodes (1976), 48 Ohio St.2d 113, 115-116, 2 O.O.3d 271, 272-273, 357 N.E.2d 375, 377-378.

The Buell court set forth the following test:

"A defendant must demonstrate three factors in order to sustain a challenge to a jury-selection procedure on the basis that the procedure involves a violation of the fair cross-section requirement. First, it must be shown that the group alleged to be excluded is a distinctive group in the community. The second requirement to be demonstrated is that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community. Finally, the defendant is required to show that the underrepresentation is due to the systematic exclusion of the group in the jury-selection process." (Citations omitted.) Id. at 217, 29 OBR at 262, 504 N.E.2d at 1162-1163.

The court then concluded that a group of people whose surnames begin with certain letters is simply not a distinctive group in the community. Nor is there any indication that the group of people whose surnames begin with letters comprising the latter half of the alphabet is underrepresented in the community, or that this particular group would be composed of more certain racial or ethnic groups than the group whose surnames begin with letters found in the first half of the alphabet. We agree *with this analysis. Accordingly, the trial court did not err in the manner in which it conducted jury selection.

Appellant's first assignment of error is without merit.

In the second assignment of error, appellant contends that the trial court erred by preventing counsel from making contemporaneous objections during trial. Specifically, appellant argues that "the trial court repeatedly refused the parties' requests to comply with the Evid.R. 103(A) and place their objections on the record."

It is clear that the trial court judge allowed objections on the record; it is apparent, however, that the judge did not always permit the reasons for the objections to be offered. Instead, the judge invited counsel to submit, in writing, the basis for their objections. Counsel for Ford submitted written objections on numerous occasions. Counsel for appellee did not. While this may not have been the method we would have chosen to conduct a trial, it was, nonetheless, an acceptable method.

However, appellant has failed to comply with App.R. 16(A)(7) in that he does not direct this court's attention to any specific portion of the trial transcript to support his argument that the trial court repeatedly refused the parties requests to place their objections on the record. There are 1,384 pages of transcript from a two-week trial. This court is not inclined to embark upon a scavenger hunt to determine whether there is merit to appellant's claim.

The only example that appellant points to within the assignment of error itself is an incident involving a police report made by Sheriff David E. Redecker. There, counsel for appellant inquired whether he could make an argument regarding the admissibility of that evidence. The trial court stated that no argument would be permitted on the record but that he could "proffer it in writing for the record." However, the trial court allowed appellant's counsel to proceed on the record to make his argument as to why the evidence was...