2015 Ohio 3834
Ohio Ct. App.2015Background
- On July 30, 2010, plaintiff Sherry Sheffield was injured when a vehicle driven into a garage burst through the garage wall into the kitchen of 93‑year‑old Myrtle Bentley's home. Sheffield sued Bentley for negligence.
- Bentley died before trial; her estate was substituted as defendant. A jury trial occurred in July 2014; plaintiff presented testimony, the estate presented no evidence, and the jury returned a defense verdict.
- During defense closing, counsel asked rhetorically, "What evidence is there that she purposely stomped on the gas...?" The court and defense counsel immediately objected/corrected, instructing jurors that the case was negligence, not intentional conduct.
- Sheffield moved for a new trial (Civ.R. 59) arguing counsel's remark improperly injected intent and prejudiced the jury; she also moved for JNOV (denied). The trial court granted a new trial, finding a substantial likelihood the jury was misled by the term "purposely."
- The estate appealed, arguing the remark was isolated, promptly cured by curative instructions, and therefore insufficient to warrant a new trial. The Twelfth District affirmed the trial court's grant of a new trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defense counsel's single use of the word "purposely" in closing required a new trial under Civ.R. 59(A)(2) | Sheffield: the comment injected intent into a negligence case, likely misled jurors, and prejudiced the verdict; cure was insufficient. | Estate: the remark was isolated, immediately objected to and corrected by the court and counsel; jurors are presumed to follow instructions, so no substantial likelihood of prejudice. | Court affirmed new trial: trial judge saw counsel's use as intentional, found a substantial likelihood the jury was misled, and resolved doubt in favor of the defeated party. |
Key Cases Cited
- Blakemore v. Blakemore, 5 Ohio St.3d 217 (Ohio 1983) (abuse of discretion standard explained)
- Pesek v. Univ. Neurologists Assn., Inc., 87 Ohio St.3d 495 (Ohio 1999) (attorneys have wide latitude in closing; doubts about prejudice resolved for defeated party)
- AAAA Enterprises, Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157 (Ohio 1990) (appellate review of discretionary rulings)
- Roetenberger v. Christ Hosp., 163 Ohio App.3d 555 (Ohio App. 2005) (improper arguments that arouse passion/prejudice may warrant new trial)
- Meyers v. Hot Bagels Factory, Inc., 131 Ohio App.3d 82 (Ohio App. 1998) (trial court best positioned to judge counsel intent and impact)
- Treesh, State v., 90 Ohio St.3d 460 (Ohio 2000) (curative instructions presumed effective)
- Pang v. Minch, 53 Ohio St.3d 186 (Ohio 1990) (jurors presumed to follow instructions)
- Harris v. Mt. Sinai Med. Ctr., 116 Ohio St.3d 139 (Ohio 2007) (deference to trial court findings when judge observed trial firsthand)