Pang v. Minch, 89-442

• Decision Date: 29 August 1990
• Docket Number: No. 89-442,89-442
• Citation: 53 Ohio St.3d 186,559 N.E.2d 1313
• Parties: PANG, et al., Appellees and Cross-Appellants, v. MINCH, et al., Appellants and Cross-Appellees.
• Court: Ohio Supreme Court

Page 186

53 Ohio St.3d 186

559 N.E.2d 1313

PANG, et al., Appellees and Cross-Appellants, v. MINCH, et al., Appellants and Cross-Appellees.

No. 89-442.

Supreme Court of Ohio.

Submitted March 13, 1990.

Decided Aug. 29, 1990.

Syllabus by the Court

1. Former Loc.R. 21 of the Cuyahoga County Common Pleas Court vested in the trial court the discretion to determine whether compliance therewith has been accomplished, and such determination will not be reversed on appeal absent an abuse of discretion. (Paugh & Farmer, Inc. v. Menorah Home for Jewish Aged [1984], 15 Ohio St.3d 44, 15 OBR 142, 472 N.E.2d 704, approved and followed.)

2. Great latitude is afforded counsel in the presentation of closing argument to the jury. Included within the bounds of permissible argument are references to the uncontradicted nature of the evidence presented by the advocate.

3. The assessment of whether the permissible bounds of closing argument have been exceeded is, in the first instance, a discretionary function to be performed by the trial court. Such determination will not be reversed on appeal absent an abuse of discretion.

4. A presumption always exists that the jury has followed the instructions given to it by the trial court. (State v. Fox [1938], 133 Ohio St. 154, 10 O.O. 218, 12 N.E.2d 413; Browning v. State [1929], 120 Ohio St. 62, 165 N.E. 566, approved and followed.)

5. Where a plaintiff suffers a single injury as a result of the tortious acts of multiple defendants, the burden of proof is upon the plaintiff to demonstrate that the conduct of each defendant was a substantial factor in producing the harm.

6. Where the tortious conduct of two or more actors has combined to bring about harm to the plaintiff, and one or more of the actors seeks to limit his liability on the ground that the harm is capable of apportionment among them, the burden of proof as to the apportionment is upon each such actor. (Ryan v. Mackolin [1968], 14 Ohio St.2d 213, 43 O.O.2d 326, 237 N.E.2d 377, overruled to the extent inconsistent herewith; 2 Restatement of the Law 2d, Torts [1965], Section 433B, adopted.)

7. 2 Restatement of the Law 2d, Torts (1965), Section 433B(2) is applicable where a single, indivisible injury is proximately caused by the successive tortious acts of multiple defendants.

8. Where the court of appeals determines that the trial court committed no error prejudicial to the appellant in any of the particulars assigned and argued in the brief thereof, App.R. 12(B) requires the appellate court to refrain from consideration of errors assigned and argued in the brief of appellee on cross-appeal which, given the disposition of the case by the appellate court, are not prejudicial to the appellee. The judgment or final order of the trial court should, under such circumstances, be affirmed as a matter of law by the court of appeals.

On June 1, 1984, plaintiff-appellee and cross-appellant, Gordon Pang, was operating his motor vehicle southbound in the curb lane of Northfield Road in the village of North Randall. As appellee attempted to make a right turn at the entrance to the parking lot of Randall Park Mall, his vehicle collided with an automobile driven by defendant-appellant and cross-appellee, Lynne Minch. Minch had been proceeding northbound on Northfield Road and was in the process of making a left turn into the mall entrance when the collision occurred. As a result of the collision, appellee and his wife, plaintiff-appellee and cross-appellant, Joan Pang, a passenger in the vehicle, suffered various physical injuries. Following the accident, appellee Gordon Pang was taken to Suburban Community Hospital in Warrensville Heights where X-rays were taken of his skull, knees, shoulders and spine, and medication was prescribed.

On June 2, 1984, appellee was examined by Dr. Mark A. Roth, his personal physician. At that time, appellee was diagnosed as suffering injuries to the soft tissue around the left shoulder, injury to the left knee and injury to muscles along the right side of the neck and upper back area. Roth thereafter prescribed rest and application of heat to the affected areas.

On June 14, 1984, appellee was again examined by Roth. Appellee communicated to Roth that he was experiencing what Roth concluded to be lumbosacral spasms--acute painful sensations in the lower back area. The condition of appellee was subsequently diagnosed by Roth as constituting lumbar myofascitis--a painful condition originating from the soft tissues surrounding the lower spine area. Roth further concluded that this condition and the medical treatment therefor were attributable to the accident of June 1, 1984.

On June 8, 1984, appellee visited Dr. Joseph M. Centanni, a chiropractor and mechanotherapist. Appellee told Centanni that he was experiencing pain and tenderness around his head, neck, shoulders, left knee and lower back. The examinations by Centanni disclosed that appellee was experiencing, among other things, a severe right sacroiliac subluxation--displacement of the right sacroiliac joint in the lower back. Based upon his examination and diagnosis, Centanni concluded that appellee's injuries were related to the automobile accident of June 1, 1984. In response to these symptoms, Centanni administered manipulative adjustment of the vertebrae and physiotherapy. The latter technique in this case consisted of providing topical heat to the affected area, thereby increasing circulation and promoting recovery.

On June 11, 1984, appellee visited Dr. Moses Leeb, an orthopedic surgeon, and communicated to him that he was experiencing low back pain and stiffness. A subsequent examination by Leeb revealed lumbosacral tenderness and muscle spasms. X-rays taken of appellee's back disclosed slight leftward deviation of the lower vertebra. Leeb concluded that the muscle spasms and resultant deviation of the vertebrae were caused by an injury to the lumbar muscles. Appellee was therefore diagnosed as suffering from lumbar myofascitis. Leeb thereafter prescribed pain medication and application of heat to the lower lumbar region. It was Leeb's opinion that the symptoms experienced by appellee were a direct result of the June 1, 1984 accident. Leeb further concluded that the treatments administered to appellee were necessitated by that accident.

On June 18, 1984, appellee was again examined by Leeb. The examination revealed that appellee continued to experience lumbosacral tenderness, spasms and pain. On July 17, 1984, Leeb performed a follow-up examination of appellee. At that time, Leeb concluded that appellee was experiencing some improvement in his condition.

On August 21, 1984, appellee was operating his motor vehicle westbound on Aurora Road in the city of Solon. As appellee's vehicle passed a driveway located at 29201 Aurora Road, it was struck in the right side by an automobile driven by defendant-appellant and cross-appellee, Jerry Lehecka. As a result of the impact, appellee was thrown against the left door of his vehicle, injuring his lower back and exacerbating his pre-existing condition.

On August 24, 1984, appellee kept a previously scheduled appointment with Centanni. Centanni again administered heat and manipulative therapy to the back. These treatments were repeated on August 27, 1984. Centanni concluded that, in part, the symptoms experienced by appellee were directly related to the August 21, 1984 accident.

On August 30, 1984, appellee was examined further by Leeb. Leeb advised appellee to rest and apply heat to the lower back. During a follow-up visit on September 6, 1984, appellee complained of persistent pain in the lumbosacral region. An examination by Leeb revealed that appellee was experiencing a moderate limitation of movement, and Leeb prescribed a corset for appellee to wear so as to avoid aggravation of his condition. On September 18, 1984, appellee was examined again by Leeb. Appellee reported at that time that his condition had improved. Leeb recommended that appellee perform certain flexion postural exercises to stretch the tightness in his lower back and stabilize his pelvic muscles. On October 9, 1984, appellee returned to Leeb's office and reported that his condition had continued to improve.

On October 15, 1984, appellee was operating his motor vehicle on the entrance ramp to Interstate Route 271 northbound in the city of Warrensville Heights. During this time, the highway was undergoing road repair and a temporary stop sign had been placed at the end of the ramp. At the convergence of the highway and the ramp, appellee applied his brakes and stopped his vehicle, whereupon he was struck from behind by a vehicle operated by defendant-appellant and cross-appellee, Jack Hamilton. As a result of the collision, appellee suffered injuries to his neck and back.

Appellee thereafter reported to the emergency room of Suburban Community Hospital where X-rays were taken of his back and pain medication was prescribed for him. That evening appellee experienced soreness in his back and neck.

On October 17, 1984, appellee was examined again by Centanni. The examination revealed that appellee was experiencing a right sacroiliac subluxation associated with pain, tenderness and muscle strain in his lower back. Centanni further concluded that the symptoms were related to the automobile accident of October 15, 1984. Appellee received treatment for these symptoms in the form of physiotherapy and manipulative therapy. In the opinion of Centanni, the treatments were necessitated by the injuries suffered in the October 15, 1984 accident.

On November 6, 1984, appellee was examined by Leeb. At the time, appellee was experiencing some improvement in his condition. However, during a return visit to Leeb on November 20, 1984, appellee suffered a recurrence of low back pain and tenderness. An examination by Leeb revealed lumbosacral tenderness, spasm and limitation of motion. Muscle relaxants were prescribed to relieve the...