2019 Ohio 1050
Ohio Ct. App.2019Background
- Collision on July 5, 2014 on SR-674: lead rider Goshorn (with passenger Angela McFarland) skidded when a southbound van driven by Gillespie moved left of center; Barnes was the second rider in a four-motorcycle staggered group and clipped Goshorn’s mirror with his elbow; McFarland was ejected and injured.
- McFarland sued Gillespie and Barnes; she later settled with Gillespie and dismissed him; Barnes settled his separate suit and became the sole defendant at trial.
- At trial the jury was instructed that Gillespie was negligent (stipulated) and heard limited evidence that McFarland had settled with Gillespie (amount excluded); jury found Barnes not negligent.
- McFarland moved for JNOV and for a new trial arguing: (1) settlement evidence was improperly admitted; (2) Barnes was negligent per se under R.C. 4511.28 (passing on the right) and R.C. 4511.21 (assured-clear-distance); (3) jury instructions failed to allocate burdens on affirmative defenses; (4) the verdict was against the manifest weight of the evidence.
- Trial court denied post-trial motions; the appellate court affirmed, finding (a) limited settlement evidence was admissible under Evid.R. 408 for non-liability purposes, and any error was harmless; (b) statutory violations did not establish negligence per se for passing (Westerfelt/Mussivand controlling) and factual disputes made JNOV inappropriate; (c) no prejudicial instructional error where no affirmative defense was actually argued and no timely objection was made; (d) the verdict was supported by competent, credible evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Admission of settlement evidence | McFarland: settlement with Gillespie was irrelevant, prejudicial, and inadmissible under Evid.R. 408 and R.C. 2307.23 | Barnes: limited proof of settlement was relevant to explain Gillespie’s absence and to show bias; amount was excluded | Court: admission of the limited settlement fact was within discretion (Evid.R. 408); any error harmless; no reversal |
| 2. JNOV on negligence per se for passing on right (R.C. 4511.28) | McFarland: Barnes unlawfully passed on the right and is negligent per se | Barnes: Westerfelt/Mussivand require ordinary negligence analysis; facts permit reasonable minds to differ; evidence supports defense | Court: statute does not create negligence per se here; jury could reasonably find Barnes not negligent; JNOV denied |
| 3. Failure to instruct on affirmative-defense burdens | McFarland: if defenses were considered, jury should have been instructed on defendant’s burden | Barnes: he did not assert affirmative defenses; he denied negligence | Court: no error — no affirmative defense was argued; plaintiff waived further objections by not objecting at charge; instructions were adequate |
| 4. New trial — verdict against manifest weight | McFarland: evidence uncontroverted that Barnes was negligent; verdict was against weight | Barnes: competing testimony and photos supported jury verdict; trial court best positioned to resolve credibility | Court: no abuse of discretion; verdict supported by competent, credible evidence; new trial denied |
Key Cases Cited
- Beard v. Meridia Huron Hospital, 106 Ohio St.3d 237, 834 N.E.2d 323 (2005) (trial court’s evidentiary rulings reviewed for abuse of discretion)
- Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983) (definition of abuse of discretion)
- Westerfelt v. Rooker, 4 Ohio St.3d 146, 447 N.E.2d 1307 (1983) (violation of R.C. 4511.28 does not automatically constitute negligence per se)
- Mussivand v. David, 45 Ohio St.3d 314, 544 N.E.2d 265 (1989) (statute creates negligence per se only if it commands or prohibits a specific act)
- Texler v. D.O. Summers Cleaners & Shirt Laundry Co., 81 Ohio St.3d 677, 693 N.E.2d 271 (1998) (standard for JNOV: sufficiency of evidence, not weight)
- Goldfuss v. Davidson, 79 Ohio St.3d 116, 679 N.E.2d 1099 (1997) (plain-error standard and waiver for failure to object to jury instructions)
- Sikora v. Wenzel, 88 Ohio St.3d 493, 727 N.E.2d 1277 (2000) (proof required when statute does not create negligence per se)
- Blair v. Goff-Kirby Co., 49 Ohio St.2d 5, 358 N.E.2d 634 (1976) (assured-clear-distance questions often create jury issues)