667 N.E.2d 1239 | Ohio Ct. App. | 1995
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *108 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *109 This lawsuit arises out of an accident that occurred on July 10, 1990. The accident occurred when George Holman, Jr. ("Holman") stopped his bicycle at the bottom of Buck Hill Road. At the same time, Eura Kirkpatrick ("Kirkpatrick") was proceeding south on Licking Valley Road towards the Buck Hill intersection and struck Holman with her truck.
Since Holman was only fourteen and a half years of age at the time of the accident, his parents George Holman, Sr. and Sharon Holman brought a derivative claim for the past and future medical expenses incurred by their son. Holman sued Kirkpatrick on the basis that she negligently operated her motor vehicle. A claim was also brought against appellee Licking County for failure to cut and remove obscuring vegetation and keep Licking Valley Road and its right-of-way open, clear, and free from nuisance.
The trial of this matter commenced on April 18, 1994. The jury returned a verdict in favor of both defendants. After appellants timely filed their notice of appeal, a settlement was entered into by the Estate of Eura Kirkpatrick and appellants. Kirkpatrick died prior to the commencement of this suit for reasons unrelated to the accident; therefore, this appeal is prosecuted only against the remaining defendant, appellee Licking County. Appellants sets forth the following assignments of error on appeal:
"I. The trial court committed prejudicial error by charging the jury on the issue of Licking County's immunity and by failing to follow the clearly applicable and controlling precedents rendered by this and other courts on the issue.
"II. Under Ohio Revised Code §
"III. The trial court committed prejudicial error in its evidentiary rulings by failing to allow the plaintiffs to submit photographic evidence to demonstrate that the visibility at the intersection where the collision occurred would be substantially enhanced by removal of offending trees, brush, weeds and embankment, all of which were within the control of Licking County and all of which combined to cause the intersection to be dangerous.
"IV. The trial court committed prejudicial error in charging the jury that Holman could be found contributorily negligent for being left of center on the intersecting roadway at the time of the collision when there was absolutely no evidence to indicate that Kirkpatrick intended to turn right onto the intersecting roadway.
"V. The trial court committed prejudicial error by failing to charge the jury that the plaintiff as a child of fourteen years of age is presumed to be non-negligent."
"A political subdivision such as Licking County is liable for injuries which are caused by its failure to keep public roads in the political subdivision free from nuisance and if it had notice of the dangerous condition. Licking County is immune from any liability in the exercise of its judgment or discretion in determining whether to acquire, or how to use, equipment, supplies, materials, personnel, facilities, and other resources unless it has been proven by a preponderance of the evidence that the judgment or discretion was exercised with a malicious purpose, in bad faith, or in a wanton or reckless manner."
We find that R.C.
"(3) Except as otherwise provided in section
This language specifically establishes a duty upon appellee to keep its roadways open, in repair, and free from defects which render the highway unsafe for normal travel. Scheck v.Licking Cty. Commrs. (July 18, 1991), Licking App. No. CA-3573, unreported, 1991 WL 148100. In response to this, appellee claims immunity pursuant to R.C.
Therefore, pursuant to Franks v. Lopez (1994),
The purpose of R.C.
Appellee claims that this evidence was not admissible pursuant to Evid.R. 407, which prohibits the introduction of subsequent remedial measures, and Evid.R. 403(A), because the pictures are prejudicial and misleading.
The exclusion of this evidence rests within the sound discretion of the trial court. State v. Sage (1987),
We do not find that the trial court abused its discretion in excluding the photographs pursuant to Evid.R. 407, since the trial court found the photographs were not introduced to establish ownership. Appellants' third assignment of error is overruled.
"The defendants also claim that the plaintiff, George Holman, Jr., drove left of center. A bicyclist must not drive on the left side of the roadway when approaching within 100 feet of or traversing any intersection. If the plaintiff did so, this conduct is negligent."
We find that the trial court erred when it instructed the jury that Holman's conduct is contributorily negligent if he rode his bicycle left-of-center, without further including an instruction on proximate cause. The mere fact that Holman may have been left of center at the time of the collision does not automatically establish proximate cause for which Holman can be found contributorily negligent.
The Ohio Supreme Court stated in Mt. Nebo Baptist Church v.Cleveland Crafts Co. (1950),
The trial court's instruction to the jury in the case subjudice required the jury to find Holman contributorily negligent if they found him to be left of center at the time of the collision. The instruction made no reference to the element of proximate cause or that the jury had to determine whether the violation of this statute proximately contributed to the injuries sustained by Holman. Appellants' fourth assignment of error is sustained.
The trial court did not err when it failed to include the language that a rebuttable presumption existed that Holman was not negligent, since Holman was fourteen and a half years old at the time of the accident. The trial court was correct when it instructed the jury that when they examined the conduct of appellant, the measure of care required by a child was that degree of care which a boy of ordinary care and prudence of the same age, capacity, education, and experience would exercise for his own safety under the same or similar circumstances. The jury must evaluate the evidence presented at trial and determine whether the evidence presented rebutted the presumption that Holman was incapable of negligence. We overrule appellants' fifth assignment of error.
For the foregoing reasons, the judgment of the Licking County Court of Common Pleas is reversed, and the cause is remanded.
Judgment reversed and cause remanded.
READER, J., concurs.
HOFFMAN, P.J., concurs in part. *114
Concurrence Opinion
I concur in the majority's opinion as to its analysis and disposition of appellants' first, third, fourth, and fifth assignments of error.
I further concur in the analysis and disposition reached by the majority concerning the appellants' second assignment of error, which holds that the trial court did not err in refusing to instruct the jury regarding R.C.