Forman v. Kreps
50 N.E.3d 1
Ohio Ct. App.2016Background
- Plaintiffs Jeff and Irene Forman were injured when defendant Roger Kreps, driving a golf cart, struck Jeff Forman on a golf course; Forman later underwent laser spinal procedures and claimed medical expenses and pain and suffering.
- At trial a jury awarded the Formans $91,375 in past/future economic and non‑economic damages; the magistrate and trial court also awarded prejudgment interest after a post‑verdict hearing held off the record.
- Kreps presented expert testimony (Dr. Glazer) challenging the reasonableness/amount of Forman’s medical bills; Forman presented Dr. Bereczki and other witnesses (some disclosed late) supporting the surgeries.
- Trial disputes included admissibility and weight of expert testimony on medical costs, whether jury instructions on recklessness or assumption of risk were required, owner immunity under R.C. 1533.181, discovery/surprise witness issues, and entitlement to prejudgment interest under R.C. 1343.03(C).
- The trial court adopted the magistrate’s decision; on appeal the Seventh District affirmed the damage award but vacated the prejudgment interest because the record lacked evidentiary support for that award.
Issues
| Issue | Plaintiff's Argument (Forman) | Defendant's Argument (Kreps) | Held |
|---|---|---|---|
| Admissibility of defendant's medical expert (Dr. Glazer) on reasonableness of Laser Spine bills | Glazer lacked up‑to‑date surgical experience and coding knowledge; his testimony should be excluded | Glazer was a qualified orthopedic surgeon with extensive billing/operative experience and could opine on reasonableness | Court: Admissible; qualification and weight for jury to decide; no abuse of discretion |
| Recklessness jury instruction | Kreps’ conduct (looking at scorecard while driving) showed conscious disregard, so instruction should be given | Conduct was negligent, not reckless; no evidence of awareness of substantially greater risk | Court: No recklessness instruction; facts supported negligence only |
| Assumption of risk (recreational activity—golf carts) | n/a (Kreps sought instruction) | Golfers assume ordinary risks of golf; riding carts is customary at course so instruction applies | Court: Denied; use of golf cart is not inherent to golf and plaintiffs paid fees, so assumption of risk did not bar recovery under recklessness standard |
| Prejudgment interest under R.C. 1343.03(C) | Forman sought interest, arguing Kreps failed to make good‑faith settlement efforts | Kreps challenged award, noting no evidentiary hearing transcript and no affidavits supporting bad settlement conduct | Court: Vacated prejudgment interest; plaintiff failed to support motion with affidavits/deposition/evidence and hearing not recorded, so award unsupported |
| Owner immunity under R.C. 1533.181 (club/member/owner status) | n/a (Kreps argued he/club had recreational‑user immunity) | Kreps claimed shareholder/member status and immunity under recreational‑user statute | Court: Rejected immunity; course character and paid fees defeat recreational‑user immunity, and corporate‑veil arguments do not shield shareholders here |
| Discovery / late witnesses and expert reports | Forman relied on late disclosures and depositions; argued no prejudice | Kreps argued trial by ambush and sought exclusion of late witnesses/experts | Court: No abuse of discretion in allowing testimony; exclusion is severe and Kreps failed to show unfair surprise or prejudice |
Key Cases Cited
- Jaques v. Manton, 125 Ohio St.3d 342 (plaintiff entitled to recover reasonable medical expenses; burden to prove amount and reasonableness)
- Wagner v. McDaniels, 9 Ohio St.3d 184 (proof of amount paid/bill and nature of services is prima facie evidence of reasonableness)
- O'Toole v. Denihan, 118 Ohio St.3d 374 (definition of recklessness requiring conscious awareness that conduct will likely cause injury)
- Anderson v. Massillon, 134 Ohio St.3d 380 (recklessness defined as conscious disregard or indifference to known or obvious risk)
- Pruszynski v. Reeves, 117 Ohio St.3d 92 (prejudgment interest under R.C. 1343.03(C) requires evidentiary support; trial court factual finding reviewable for abuse of discretion)
- Kalain v. Smith, 25 Ohio St.3d 157 (factors showing a party did not fail to make a good‑faith effort to settle)
- Pauley v. Circleville, 137 Ohio St.3d 212 (character of property determines applicability of recreational‑user immunity statute)
- Marchetti v. Kalish, 53 Ohio St.3d 95 (participants in recreational activities assume ordinary risks; recovery requires recklessness or intentional conduct)