Sanders v. Fridd

• Decision Date: 30 September 2013
• Docket Number: No. 12AP–688.,12AP–688.
• Citation: 998 N.E.2d 526
• Parties: Amy K. SANDERS, Plaintiff–Appellant, v. Ryan FRIDD et al., Defendants–Appellees.
• Court: Ohio Court of Appeals

998 N.E.2d 526

Amy K. SANDERS, Plaintiff–Appellant,

v.Ryan FRIDD et al., Defendants–Appellees.

No. 12AP–688.

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

Sept. 30, 2013.

Granger Co., L.P.A., and Mark S. Granger; Oliver Law Office, and Jami S. Oliver, Columbus, for appellant.

Frost, Maddox & Norman Co., LPA, and Mark S. Maddox, Columbus, for appellee Ryan Fridd.

CONNOR, J.

{¶ 1} Plaintiff-appellant, Amy K. Sanders (“appellant”), appeals from a judgment, pursuant to jury verdict, of the Franklin County Court of Common Pleas in favor of defendant-appellee, Ryan Fridd (“Fridd”). Because (1) the trial court properly instructed the jury on the law of co-worker immunity, (2) the trial court did not err in denying appellant's motion in limine, and (3) the trial court did not abuse its discretion by submitting Fridd's proposed interrogatories to the jury, we affirm.

I. FACTS AND PROCEDURAL HISTORY

{¶ 2} On July 19, 2007, appellant filed a complaint against Fridd, Premierfirst Banc, L.L.C. (“Premierfirst”), and the Ohio Bureau of Workers' Compensation (“BWC”). Appellant alleged that Fridd, her former co-worker at Premierfirst, negligently caused her injury while he was engaged in horseplay disconnected from his employment, and that his “actions were approved and ratified by * * * Premierfirst.” (Complaint, ¶ 10.) Appellant asserted that the BWC held a potential interest in the litigation as a statutory subrogor or subrogee. Fridd answered the complaint, asserting that he was immune from appellant's negligence claim under the laws governing co-worker immunity.

{¶ 3} The events giving rise to the complaint occurred in 2006 when appellant was employed at Premierfirst as a senior loan officer. Fridd was appellant's direct supervisor at Premierfirst and the general manager of the company. Tambra Owens was also a supervisor at Premierfirst, but had less authority than Fridd. Gary Woods was the owner and sole shareholder of Premierfirst.

{¶ 4} On February 28, 2006, appellant, Fridd, and another co-worker, Shane Adams, were present at the Premierfirst office. Appellant stated that she was carrying a loan package to the fax machine when Fridd jumped out of his office, “like to jump out and scare [her], and pushed [her] with both arms.” (Tr. Vol. II, 29.) Appellant fell to the ground and sustained a serious fracture to her left wrist. Appellant stated that she was not engaged in any form of horseplay when Fridd pushed her to the ground.

{¶ 5} Fridd testified that appellant was engaged in horseplay with Adams immediately before the accident, and further stated that appellant was swinging her arms like “a windmill” as she walked down the hallway toward the fax machine. (Tr. Vol. II, 169.) Although appellant stated that she had never done the windmill, Adams testified that appellant would frequently “do [the windmill] to” employees at Premierfirst. (Tr. Vol. II, 231–32.) Fridd stated that he put his hands out to protect himself from appellant's windmill, ultimately causing appellant to fall backwards. Appellant applied for and received workers' compensation benefits as a result of her injuries.

{¶ 6} The evidence demonstrated that horseplay was “an ongoing thing” at Premierfirst; instances of horseplay occurred “a few times a week at least.” (Tr. Vol. II, 230, 13.) Appellant noted that the Premierfirst employees engaged in various acts of physical horseplay, explaining that “if we were passing each other in the hallway, you know, the guys would kind of like body bump us. Like just run into us kind of. * * * [O]r [appellant] could be on a phone with clients and they would come up behind [her] and yank [her] hair * * * or bear hugging.” (Tr. Vol. II, 11–12.) Appellant admitted that she engaged in some acts of horseplay, such as lowering a co-worker's chair, or “pull[ing] their arm hair, [or] pinch[ing] them.” (Tr. Vol. II, 103.) She explained that there was a hallway near the bathrooms where “it was very common for people to wait outside the door when personnel were going to come out of the bathroom and we jump out and scare them.” (Tr. Vol. II, 104–05.) Appellant stated that Fridd had jumped out and surprised her before when she was coming out of the bathroom. Appellant stated that it was not common for employees to push one another down.

{¶ 7} In contrast, Owens testified that the horseplay she witnessed at Premierfirst included “[p]unching, slugging, pushing type things. At some points wrestling to the ground.” (Owens Depo., 15.) Although Owens told Fridd to stop engaging in horseplay, Fridd refused to stop. Appellant testified that Fridd initiated much of the horseplay which occurred at Premierfirst, and agreed that Fridd “allowed” horseplay “and allowed others to engage in it.” (Tr. Vol. II, 125.) No Premierfirst employee was ever disciplined for engaging in horseplay at the office.

{¶ 8} Owens testified that she talked to Woods about the horseplay at Premierfirst. In response to Owens' comment about the horseplay, Woods said “[l]imited, * * * very limited things because he was in and out” of the office. (Owens Depo., 21–22.) Owens could not remember anything that Woods specifically said about horseplay in the office. Woods stated that no one had ever told him that horseplay was going on in the office.

{¶ 9} Although Woods owned Premierfirst, Woods agreed that he was an “absentee owner.” (Tr. Vol. II, 210.) Woods had another full time job and rarely went to the Premierfirst office. Owens stated that in the three years she worked at Premierfirst, Woods had only been in the office “maybe five or six times tops.” (Owens Depo., 21–22.)

{¶ 10} Woods explained that Fridd was the general manager at Premierfirst as he “managed about everything.” (Tr. Vol. II, 195.) Fridd had the authority to hire and fire individuals, to oversee day-to-day operations, to report to payroll, to keep records of all business transactions, and to ensure that the company was compliant with state and federal guidelines. While Woods characterized Owens as a co-manager, he explained that she did not have the authority to hire or fire people, and that her job duties were essentially to assist Fridd in the execution of his managerial duties. Woods testified that he did not condone horseplay in the office, and stated that horseplay was not part of Fridd's job description.

{¶ 11} Fridd filed a motion for summary judgment on March 16, 2009. The trial court granted the motion, finding Fridd was entitled to immunity under R.C. 4123.741. The court did not analyze whether Fridd was acting in the course of his employment at the time of the accident, as it found that “R.C. 4123.741 requires that the injured employee be in the course and scope of his/her employment, not the employee seeking immunity.” (Apr. 28, 2009 Summary Judgment Decision, 4.)

{¶ 12} This court reversed the trial court's award of summary judgment. Sanders v. Fridd, 10th Dist. No. 09AP–596, 2010-Ohio-2321, 2010 WL 2091490. We found the trial court's interpretation of the co-worker immunity law incorrect, as “R.C. 4123.741 requires that both the injuredemployee and the coemployee who allegedly caused the injury must have been in the service of the employer at the time of the injury for immunity to apply.” Id. at ¶ 9, citing Donnelly v. Herron, 88 Ohio St.3d 425, 727 N.E.2d 882 (2000).

{¶ 13} On May 1, 2009, appellant voluntarily dismissed Premierfirst from the action without prejudice. On July 30, 2010, Fridd filed a second motion for summary judgment, asserting that he was entitled to immunity under R.C. 4123.741. On September 14, 2010, the court issued a decision and entry denying Fridd's second motion for summary judgment, noting that genuine issues of material fact existed regarding whether Premierfirst ratified and endorsed horseplay occurring at the office.

{¶ 14} The case proceeded to trial before a jury. At the conclusion of the trial, the jury returned a verdict in favor of Fridd.

II. ASSIGNMENTS OF ERROR

{¶ 15} Appellant appeals, assigning the following errors:

1. THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT INSTRUCTED THE JURY THAT PLAINTIFF–APPELLANT SANDERS COULD NOT RECOVER FROM COWORKER DEFENDANT–APPELLEE FRIDD AS A MATTER OF LAW IF PLAINTIFF–APPELLANT SANDERS WAS ALSO ENTITLED TO BENEFITS UNDER THE WORKER'S COMPENSATION STATUTE SINCE COWORKER IMMUNITY ONLY PROTECTS DEFENDANT–APPELLEE FRIDD IF THE JURY FINDS THAT HE WAS AN “EMPLOYEE” IN “THE SERVICE OF” HIS EMPLOYER.

2. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY ADMITTING EVIDENCE OF OTHER ACTS OF HORSEPLAY THAT WERE NOT HISTORICALLY OR CAUSALLY RELATED TO ACTS GIVING RISE TO PLAINTIFF–APPELLANT'S INJURIES.

3. BASED UPON THE TOTALITY OF THE EVIDENCE PRESENTED AT TRIAL, THE ERRONEOUS AND CONFLICTING JURY INSTRUCTIONS, AND THE WORDING AND ORDER OF THE JURY INTERROGATORIES, THE TRIAL COURT CREATED JURY CONFUSION AND REVERSIBLE ERROR.

III. FIRST ASSIGNMENT OF ERROR—JURY INSTRUCTIONS

{¶ 16} Appellant's first assignment of error asserts the trial court erred in instructing the jury on the law regarding co-worker immunity.

{¶ 17} Ordinarily, a trial court should give requested jury instructions if they are correct statements of the law applicable to the facts in the case and reasonable minds might reach the conclusions sought by the instructions. Murphy v. Carrollton Mfg. Co., 61 Ohio St.3d 585, 591, 575 N.E.2d 828 (1991). Jury instructions must be based on the evidence presented in the case. “It is well established that the trial court will not instruct the jury where there is no evidence to support an issue.” Id.

{¶ 18} Trial courts have a responsibility to give all jury instructions that are relevant and necessary for the jury to properly weigh the evidence and perform its duty as the fact finder. State v. Comen, 50 Ohio St.3d 206, 553 N.E.2d 640 (1990), paragraph two of the syllabus. An instruction is proper if it adequately informs the jury of the law. State v. Conway, 10th Dist. No. 03AP–585, 2004-Oh...