Woods v. City of Columbus

• Decision Date: 27 August 1985
• Docket Number: No. 85AP-122,85AP-122
• Citation: 492 N.E.2d 466,23 O.B.R. 406,23 Ohio App.3d 163
• Parties: , 23 O.B.R. 406 WOODS, Appellee, v. CITY OF COLUMBUS, et al., Appellants.
• Court: Ohio Court of Appeals

Page 163

23 Ohio App.3d 163

492 N.E.2d 466, 23 O.B.R. 406

WOODS, Appellee, v. CITY OF COLUMBUS, et al., Appellants.

No. 85AP-122.

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

Aug. 27, 1985.

Syllabus by the Court

1. The required procedure, for the offering of evidence not admitted pursuant to a trial judge's rejection of evidence prior to trial, must be made by the sworn question and answer method, sometime during the trial. (State v. Spahr [1976], 47 Ohio App.2d 221, 353 N.E.2d 624 ; Riverside Methodist Hosp. Assn. v. Guthrie [1982], 3 Ohio App.3d 308, 444 N.E.2d 1358; Hammond v. Moon [1982], 8 Ohio App.3d 66, 455 N.E.2d 1301; and Caserta v. Allstate Ins. Co. [1983], 14 Ohio App.3d 167, 470 N.E.2d 430, followed.)

2. Admission of seat belt evidence in order to mitigate damages is based upon the requirement that the failure to use the available restraint was a substantial contributing factor in increasing the harm that ensued.

3. Application of the seat belt defense requires submission of factual evidence to support contentions that either (1) the injuries allegedly sustained by the plaintiff would have been reduced or prevented entirely, or (2) the accident would not have occurred thereby precluding recovery for any injuries.

4. A vehicle that enters an intersection on a green traffic light has a preferential right, pursuant to R.C. 4511.13, to proceed through the intersection, but this right does not relieve the driver of the vehicle of his duty to use ordinary care. (Timmins v. Russomano [1968], 14 Ohio St.2d 124, 236 N.E.2d 665 , followed.)

Carlile, Patchen, Murphy & Allison and Daniel R. Volkema; Freeman & Polhamus and William R. Polhamus, Columbus, for appellee.

Gregory S. Lashutka, City Atty., and Debi Everson, Columbus, for appellants.

STERN, Judge.

This is an appeal from a judgment rendered against appellants for personal injuries sustained by appellee as the result of a collision between a police cruiser, driven by a police officer for the city of Columbus, and an automobile driven by appellee, Mabel A. Woods.

The accident occurred at the intersection of Seventeenth and Long Streets, in the city of Columbus. There is a traffic control light at the intersection of these two streets. The cruiser was going north on Seventeenth Street, with the traffic light flashing a red signal as the cruiser was proceeding to go through the intersection. The cruiser was not responding to an emergency call. Appellee was driving westward on Long Street, with the traffic light signaling green. When appellee reached the intersection, her car collided with the right rear quarter panel of the cruiser. The police officer testified that there were buildings obstructing his view of East Long Street, and that there were parked automobiles on the side of the road.

Appellants raise two assignments of error:

"1. The trial court erred in refusing to admit any evidence regarding the appellee's failure to use an available seatbelt [sic ].

"2. The trial court erred in directing a verdict in favor of the appellee on the issue of liability."

Appellee responds to appellants' assignments of error:

"1. Ohio common law does not permit appellee's failure to wear a seat belt to be introduced into evidence to show contributory negligence; further, defendant[s] must present expert testimony which proximately relates injury to the failure to wear a seat belt.

"2. Defendant[s] must present evidence that plaintiff committed negligence and that the negligence committed caused the automobile collision."

Prior to the time of the actual trial of the proceedings, the trial court considered, in limine, several motions filed by appellee as to the conduct of the trial. Among them was one ordering appellants not to mention appellee's failure to wear a seat belt at the time of the accident. The court sustained that motion. Defense counsel then made a statement into the record that, if appellants were allowed to cross-examine appellee, she would be asked whether her car was equipped with seat belts at the time of the accident and that her answer would be in the affirmative; in addition, appellee would be asked whether she had worn the seat belt at the time of the accident and that her answer would be in the negative.

The question, as to the manner and method of ruling upon motions made in limine, has been ruled upon by four reported opinions that we feel are pertinent to that particular type of motion.

In State v. Spahr (1976), 47 Ohio App.2d 221, 353 N.E.2d 624 , the Second District Court of Appeals stated, in paragraph one of the syllabus:

"As related to trial, a motion in limine is a precautionary request, directed to the inherent discretion of the trial judge, to limit the examination of witnesses by opposing counsel in a specified area until its admissibility is determined by the court outside the presence of the jury."

In Spahr, supra, at 224, 353 N.E.2d 624, the court commented:

"The expression in limine appears to be generic language applicable to a multitude of situations. In Southern Pacific R.R. Co. v. United States (1906), 200 U.S. 341, 352, 26 S.Ct. 296, 298, 50 L.Ed. 507, the court indicates that a jurisdictional objection should be made in limine and not after pleadings have been perfected. Dictionaries provide various applications, none of which relate directly to its use as a procedural device before the introduction of evidence. We are confident that industrious research would yield a record of its presence in former times on consideration of evidential objections.

"There is no provision under the rules or the statutes for a motion in limine. The request was no more and no less than an appeal to the trial court for a precautionary instruction to opposing counsel to avoid error or prejudice, such instruction to be effective until admissibility was resolved. Such a request lies in the inherent power and discretion of the trial judge to control the proceedings."

This court, in the following citations, has considered the effect and the procedure to be followed in requests made to trial courts in in limine motions: Riverside Methodist Hosp. Assn. v. Guthrie (1982), 3 Ohio App.3d 308, 444 N.E.2d 1358; Hammond v. Moon (1982), 8 Ohio App.3d 66, 455 N.E.2d 1301; and Caserta v. Allstate Ins. Co. (1983), 14 Ohio App.3d 167, 470 N.E.2d 430.

In Riverside, supra, this court stated, in paragraph two of the syllabus:

"A motion in limine requires a two-step procedure: first, a pretrial consideration as to whether any reference to the area in question should be precluded until admissibility can be ascertained during trial; and, second, during the trial when the party desires to introduce the evidence which is the subject of the motion in limine, a determination by the trial court as to the admissibility of the evidence, which is determined by the circumstances and evidence adduced in the trial and the issues raised by the evidence."

In Riverside, supra, 3 Ohio App.3d at 310, 444 N.E.2d 1358, this court quoted State v. Spahr, supra, 47 Ohio App.2d at 223, 353 N.E.2d 624, that " * * * '[a]n evidential ruling, prospective or otherwise, is never final until the trial is completed and every avenue of admission has been explored and denied.' * * * "

In Hammond, supra, this court stated, in paragraph two of the syllabus:

"Motions in limine are properly used only to preclude any evidence of a certain nature which is inherently prejudicial and inadmissible without a proper foundation being established until such time as the trial court, through a voir-dire examination or otherwise, may determine during the course of the trial the admissibility of the evidence. A motion in limine ordinarily is not a substitute for a motion to suppress evidence and is not an appropriate means of determining the admissibility of evidence."

A motion in limine made at the threshold of a trial may be a useful tool to obtain a ruling on evidence before that evidence is sought to be introduced. McCormick, Evidence (3 Ed. Cleary Ed.1984) 126, 128, Section 52. However, the required procedure, for the offering of evidence not admitted pursuant to a trial judge's rejection of evidence prior to trial, must be made by the sworn question and answer method sometime during the trial so that the record can reflect exactly what the offerer of such evidence proposes to present, as sworn or stipulated testimony, to an appellate court for review.

Under the circumstances of the record before us, we will consider the statement made to the trial judge, relating to the nonuse of the seat belt by appellee, as if such unsworn testimony was properly presented, and that issue was considered accordingly.

The basic issue to be determined is whether a plaintiff, who fails to wear a seat belt, has the right to recover in an action for personal injuries incurred in a motor vehicle accident, where there is no statute mandating the use of seat belts by all passengers while the automobile is in motion.

This particular issue has been decided by courts in several states. From our review, there does not appear to be a unanimity of opinion as to determination of this subject. Much of the law written on this subject has been since the adoption of the doctrine of comparative negligence by several jurisdictions in the country.

In Ohio, the only law that we can find has to do with the question of whether failure to wear a seat belt is negligence, or whether such failure can be considered as a defense of contributory negligence.

In Bertsch v. Spears (1969), 20 Ohio App.2d 137, 252 N.E.2d 194 , the Court of Appeals for Erie County ruled upon the validity of R.C. 4513.262, requiring that all automobiles sold, manufactured, leased, etc., must have seat belts installed. There was not then, and there is not now, any statute that mandates a passenger to use a seat belt while the automobile is in motion. ¹ It is significant to note that in that case the court, in dicta, noted, at...