Maiorana v. Walt Disney Co.Maiorana v. Walt Disney Co.
D E C I S I O N
Rendered on December 23, 2021
On brief: Rafidi, Pallante & Melewski, LLC, Jeffrey A. Pallante, and Ryan J. Melewski, for plaintiffs-appellees/cross appellants, Joseph Maiorana, Erin Maiorana, and Nora Maiorana. Argued: Ryan J. Melewski.
On brief: Michael J. McLane, for defendant-appellant/cross appellee, True Grip and Lighting, Inc. Argued: Michael J. McLane.
APPEAL from the Franklin County Court of Common Pleas.
{¶ 1} Defendant-appellant/cross-appellee, True Grip and Lighting, Inc. (“True Grip“), appeals from a March 10, 2020 judgment entry awarding a final jury verdict and costs totaling $263,340.65 to plaintiffs-appellees/cross-appellants Joseph Maiorana, Erin Maiorana, and Nora Maiorana. The Maioranas filed a cross-appeal from the March 10, 2020 entry denying their motion for prejudgment interest without allowing them to conduct discovery.
{¶ 2} For the reasons that follow, we affirm.
I. FACTS AND PROCEDURAL HISTORY
{¶ 3} On November 7, 2015, Mr. Maiorana was working as a sideline still photographer for USA Today during a college football game in Columbus, Ohio between the Ohio State University (“Ohio State“) and the University of Minnesota. Ohio State had contracted with ESPN, Inc. (“ESPN“) to televise the game. ESPN hired True Grip as a subcontractor to provide a camera cart and driver to assist ESPN in videotaping the football game. CSC was hired by Ohio State, paid by ESPN, to provide security services and operate as “spotters,” individuals that assist in keeping the path clear for the camera cart. Ming Entertainment, a contractor of ESPN, provided the cables attaching the video camera for the broadcast.
{¶ 4} During the third quarter of the game, Ohio State elected to punt. Mr. Maiorana was positioned near the 10- or 15-yard line on the visitor sideline toward the open end of the stadium. True Grip‘s camera cart was
{¶ 5} On October 27, 2017, the Maioranas filed a complaint against ESPN, the Walt Disney Company, and ABC Sports in the Franklin County Court of Common Pleas. The Maioranas alleged causes of action for negligence and loss of consortium. There is no dispute that the Maioranas did not name “John Doe” or unknown parties as defendants in the complaint. A separate complaint against Ohio State was filed in the Ohio Court of Claims.
{¶ 6} ESPN, Walt Disney, and ABC Sports filed an answer on December 26, 2017. The defendants denied that they operated or controlled the camera cart during the game and that the injuries sustained by Mr. Maiorana were caused by the acts of another party. On January 9, 2018, the defendants filed a third-party
{¶ 7} On November 13, 2018, True Grip filed a motion for summary judgment against the Maioranas arguing that the statute of limitations had expired. On December 17, 2018, the trial court denied the motion for summary judgment. On March 25, 2019, the Maioranas filed a motion for leave to amend their complaint to substitute True Grip for the Walt Disney Company, ESPN, and ABC. True Grip filed a memorandum in opposition on March 28, 2018. On March 28, 2018, the trial court granted the Maioranas’ motion to substitute True Grip as the sole remaining defendant in the case.
{¶ 8} On March 27, 2019, True Grip filed a second motion for summary judgment arguing that the case should be dismissed as Mr. Maiorana assumed the risk of injury working as a photographer on the sideline of a football game. On March 28, 2019, True Grip filed a “renewed” motion for summary judgment arguing that the statute of limitations had expired in the case. The Maioranas filed a memorandum in opposition on April 5, 2019. On November 29, 2019, the trial court denied True Grip‘s motions for summary judgment finding that the Maioranas’ claims against True Grip related back to the original complaint pursuant to
{¶ 9} On February 3, 2020, the case proceeded to a jury trial. True Grip moved for a directed verdict at the close of the Maioranas’ case and at the close of its evidence. Both motions were denied. On February 6, 2020, the jury returned a verdict of $390,000, which was reduced to $259,350 after a comparative fault determination by the jury.1 On March 4, 2020, True Grip filed a series of post-trial motions. On February 12, 2020, the Maioranas filed a motion for prejudgment interest arguing that True Grip failed to make good faith efforts to settle the case. The Maioranas filed subpoenas requesting the insurance claim‘s file and attorney‘s file. On March 4, 2020, the trial court conducted a hearing as to the outstanding motions. Relevant to the instant appeal, the trial court denied True Grip‘s motions, granted the Maioranas’ motion for costs for those depositions used at trial, and denied the Maioranas’ motion for prejudgment interest.
{¶ 10} The final judgment entry was filed March 10, 2020. True Grip filed a timely appeal on April 8, 2020. The Maioranas filed a cross-appeal on April 17, 2020.
{¶ 11} True Grip assigns the following as trial court error:
- Trial court erred in denying True Grip‘s Motion for Summary Judgment in its Decision and Entry of December 17, 2018.
- Plaintiff failed to comply with the applicable statute of limitations in filing his complaint, as applied to Defendant, True Grip.
- Trial Court erred in deciding Plaintiff‘s untimely Third-Party Complaint relates back to the filing of the original complaint.
- The Trial Court erred in granting Plaintiffs’ Motion to Substitute True Grip and Lighting, Inc., as Proper Party Defendant in its Decision and Entry on March 28, 2019 and in denying True Grip‘s Summary Judgment Motions.
- The Trial Court improperly allowed the Plaintiff to substitute True Grip for ABC, ESPN and Disney.
- The Trial Court erred in its Decision and Entry of November 29, 2019, denying the True Grip Motions for Summary Judgment filed March 28, 2019 and March 27, 2019.
- The Trial Court improperly denied True Grip‘s Motion for Summary Judgment that Plaintiff assumed the risk of his injuries by accepting a game time field pass from OSU and proceeding to work on the field during the football game when he was injured by a known risk that was necessary for the game, as a televised contest.
- The Trial Court erred in denying Defendant‘s Motions for Directed Verdict and the close of Plaintiff‘s case, and at the close of Defendant‘s evidence.
- The Trial Court refused to provide Jury Instructions and Jury Interrogatories, under ORC 2307.23, as to claims of liability against unnamed third parties, despite Appellee having a pending case in The Ohio Court of Claims and the evidence proffered to the Court, as well as the testimony of Appellee, Mr. Saban, Mr. Corcoran and Mr. Penner, and other testimony adduced regarding the role of other non-parties in the Appellee‘s accident.
- It was an abuse of discretion for the Trial Court allowed the prejudicial use of exhibit 22, which was not disclosed by Plaintiff until January 31, 2020, when the discovery deadline was December 1, 2019, resulting in an award of lost income beyond the previous claim of lost income in an interrogatory that was never supplemented by Appellee.
- The Trial Court allowed evidence of gross income figures to be presented to the jury without the proper testimonial or evidentiary foundation, in the form of Plaintiff‘s testimony as to amounts of lost income and Exhibit 22 and expert testimony.
- The Trial Court awarded Plaintiff additional and duplicative deposition and other fees that were improperly taxed as costs.
(Sic passim.)
{¶ 12} The Maioranas assign the following as trial court error:
- The trial court abused its discretion by ruling on a motion for prejudgment interest without first allowing plaintiff to conduct discovery.
III. LEGAL ANALYSIS
A. True Grip‘s First, Second, Third, Fourth, and Fifth Assignments of Error
{¶ 13} In True Grip‘s first five assignments of error, it alleges that the trial court erred at various stages in this litigation allowing the Maioranas to substitute
{¶ 14} Summary judgment is only appropriate when the moving party demonstrates that: (1) no genuine issue of material fact remains to be litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) viewing the evidence most strongly in favor of the nonmoving party, reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made. 2454 Cleveland, LLC v. TWA, LLC, 10th Dist. No. 19AP-157, 2020-Ohio-362, ¶ 8, quoting Capella III, LLC v. Wilcox, 10th Dist. No. 10AP-206, 2010-Ohio-4746, ¶ 16, citing Gilbert v. Summit Cty., 104 Ohio St.3d 660, 2004-Ohio-7108, ¶ 6. “When seeking summary judgment on grounds that the non-moving party cannot prove its case, the moving party bears the initial burden of informing the trial court of the basis for the motion and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact on an essential element of the non-moving party‘s claims.” Lundeen v. Graff, 10th Dist. No. 15AP-32, 2015-Ohio-4462, ¶ 11, citing Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996). Once the moving party meets its initial burden, the nonmoving party must set forth particular facts that demonstrate a genuine issue for trial. Dunlop v. Ohio Dept. of Job & Family Servs., 10th Dist. No. 19AP-58, 2019-Ohio-3632, ¶ 6, citing Dresher at 293. In reviewing a motion for summary judgment, we must construe all evidence in a light in favor of the nonmoving party. 2454 Cleveland, LLC at ¶ 8, citing Pilz v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 04AP-240, 2004-Ohio-4040, ¶ 8.
{¶ 15} Appellate review of summary judgment is de novo. Gabriel v. Ohio State Univ. Med. Ctr., 10th Dist. No. 14AP-870, 2015-Ohio-2661, ¶ 12, citing Byrd v. Arbors E. Subacute & Rehab. Ctr., 10th Dist. No. 14AP-232, 2014-Ohio-3935, ¶ 5. “When an appellate court reviews a trial court‘s disposition of a summary judgment motion, it applies the same standard as the trial court and conducts an independent review, without deference to the trial court‘s determination.” Gabriel at ¶ 12, citing Byrd at ¶ 5, citing Maust v. Bank One Columbus, N.A., 83 Ohio App.3d 103, 107 (10th Dist.1992). We must affirm the trial court‘s judgment if any grounds raised by the movant at the trial court are found to support summary judgment, even if the trial court failed to consider such grounds. Eichenberger v. Woodlands Assisted Living Residence, L.L.C., 10th Dist. No. 14AP-272, 2014-Ohio-5354, ¶ 10, citing Coventry Twp. v. Ecker, 101 Ohio App.3d 38, 41-42 (9th Dist.1995).
{¶ 16} It is well-established law that we review a trial court‘s ruling whether to grant a motion for leave to amend a complaint under an abuse of discretion analysis. Leatherwood v. Medco Health Solutions of Columbus, 10th Dist. No. 13AP-242, 2013-Ohio-4780, ¶ 9, citing Csejpes v. Cleveland Catholic Diocese, 109 Ohio App.3d 533, 541 (8th Dist.1996), citing Wilmington Steel Prods., Inc. v. Cleveland Elec. Illum. Co., 60 Ohio St.3d 120 (1991). An abuse of discretion goes beyond an error of law. Id. The trial court‘s decision must be unreasonable, arbitrary, or unconscionable. Id. “A decision is unreasonable if there is no sound reasoning process that would support that decision. It is not enough that the reviewing court, were it deciding the issue de
{¶ 17} Preliminarily, we note that True Grip‘s brief fails to comply with
1. Statute of Limitations.
{¶ 18} True Grip argues that the statute of limitations expired in this case before it was named as a defendant.
{¶ 19}
A party may amend its pleading once as a matter of course within twenty-eight days after serving it or, if the pleading is one to which a responsive pleading is required within twenty-eight days after service of a responsive pleading or twenty-eight days after service of a motion under
Civ.R. 12(B) , (E), or (F), whichever is earlier. In all other cases, a party may amend its pleading only with the opposing party‘s written consent or the court‘s leave. The court shall freely give leave when justice so requires.
{¶ 20} The purpose of
{¶ 21} Conversely,
{¶ 22} After careful review of the record, we find that the Maioranas’ claims are not barred by the expiration of the statute of limitations as their motion complied with the requirements of
{¶ 23} Second, the record is clear that True Grip had notice of the complaint well before the statute of limitations expired and was not prejudiced maintaining a defense on the merits. The record indicates that True Grip has known of this case going back to 2016. On January 5, 2016, ESPN sent a letter to True Grip notifying them of the incident and the Maioranas’ potential claims. The letter states in relevant part: “[w]hile no litigation is yet filed, this letter serves as notice that ESPN‘s preliminarily investigation of the incident indicates that the sideline camera cart that allegedly struck Mr. Maiorana, and the driver of that cart, were provided to ESPN Productions, Inc. (“Productions“) by True Grip & Lighting, Inc. (“True Grip“) pursuant to the terms of the agreement dated August 16, 2013 (as amended) by and between True Grip and Productions (“the Agreement“). * * * We write to make True Grip aware of a potential claim by Mr. Maiorana.” (Nov. 27, 2018 Maioranas’ Mot. in Opp. of Summ. Jgmt., Ex. C.)
{¶ 24} ESPN sent a second letter on November 10, 2017 to True Grip notifying them of their demand for indemnification in the case. ESPN provided a copy of the summons and complaint in the letter. ESPN sent a third letter dated November 16, 2017 providing True Grip a second notice of demand for indemnification based on its contract to defend and indemnify ESPN.
{¶ 25} Finally, True Grip knew, or should have known, that but for the mistake it would have been added as a party in the original complaint filed October 27, 2017. The record reveals that the Maioranas were not aware of True Grip‘s role in this case until the third-party complaint was filed by ESPN on January 9, 2018.
{¶ 26} True Grip argues that the Maioranas failed to comply with
{¶ 27} Accordingly, appellant‘s first five assignments of error are overruled.
B. True Grip‘s Sixth, Seventh, and Eighth Assignments of Error
{¶ 28} In True Grip‘s sixth, seventh, and eighth assignments of error, it alleges that the trial court erred in denying its motion for summary judgment then denying its motions for directed verdict based on its assumption of risk argument.
{¶ 29} As appellant‘s six and seventh assignment of error originate from the trial court‘s denial of its motion for summary judgment, the standard for reviewing a motion for summary judgment under
{¶ 30} Appellant‘s eighth assignment of error arises from the trial court‘s denial of its motion for a directed verdict at trial.
{¶ 31} As stated in the previous section, True Grip has failed to set forth each assignment of error separately in contravention of
{¶ 32} It is well-established that Ohio law recognizes three types of assumption of risk as defenses to negligence: express, primary, and implied or secondary. Cameron v. Univ. of Toledo, 10th Dist. No. 16AP-834, 2018-Ohio-979, ¶ 41, citing Schnetz v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 10AP-959, 2011-Ohio-3927, ¶ 21, citing Crace v. Kent State Univ., 10th Dist. No. 08AP-1080, 2009-Ohio-6898, ¶ 10. Express assumption of the risk is applicable when the parties expressly agree to release liability. Crace at ¶ 11, citing Ballinger v. Leaniz Roofing, Ltd., 10th Dist. No. 07AP-696, 2008-Ohio-1421, ¶ 6. Implied assumption of risk applies when a plaintiff consents to or acquiescence to an identifiable, known, or obvious risk to plaintiff‘s safety. Ochall v. McNamer, 10th Dist. No. 15AP-772, 2016-Ohio-8493, ¶ 33, citing Collier v. Northland Swim Club, 35 Ohio App.3d 35, 37 (10th Dist.1987).
{¶ 33} Primary assumption of the risk is applicable when “a person who voluntarily engages in a recreational or sporting activity assumes the inherent risks of that activity and cannot recover for injuries resulting from the activity unless the defendant acted recklessly or intentionally in causing the injuries.” Cameron at ¶ 42, citing Morgan v. Kent State Univ., 10th Dist. No. 15AP-685, 2016-Ohio-3303, ¶ 12; Marchetti v. Kalish, 53 Ohio St.3d 95 (1990), paragraph one of the syllabus. The rationale is that certain activities present risks so inherent that the possibility of injury is unavoidable. Crace at ¶ 13, citing Collier at 37. The participant tacitly consents to the risk of injury inherent in the activity by the very nature of participating in said activity. Id. ” ‘Because a successful primary assumption of risk defense means that the duty element of negligence is not established as a matter of law, the defense prevents the plaintiff from even making a prima facie case.’ ” Wolfe v. Bison Baseball, Inc., 10th Dist. No. 09AP-905, 2010-Ohio-1390, ¶ 21, quoting Gallagher v. Cleveland Browns Football Co., 74 Ohio St.3d 427, 432 (1996). “Thus, application of primary assumption of risk to sports events requires that the danger involved is ordinary to the game, it is common knowledge that the danger exists, and the resulting injury occurs as a result of the danger during the course of the game.” Gallagher v. Cleveland Browns Football Co., Inc., 93 Ohio App.3d 449, 459 (8th Dist.1994), reversed on other grounds, 74 Ohio St.3d 427 (1996).
{¶ 34} Both parties rely on Gallagher to support their analysis. A brief review is instructive. In Gallagher, the plaintiff was a videographer working on the sideline of a football game between the Cleveland Browns and Houston Oilers. During the game, two players collided with the plaintiff resulting in injuries. The Eighth District Court of Appeals concluded that the plaintiff had assumed the risk of injury as the danger of a collision with a player while working on the sideline was typical to the game of football. The court found
{¶ 35} Here, like Gallagher, Mr. Maiorana was injured while working as a photographer during a football game. Unlike Gallagher, Mr. Maiorana‘s injury did not originate from a collision with players running out of bounds, but from a fellow media member operating a camera cart. While there is an inherent risk of injury involved standing on the sidelines of a football field, that risk is from the activities on the field, not from other media personnel and their equipment. “Where the risk at issue is not inherent, then a negligence standard applies.” Horvath v. Ish, 134 Ohio St.3d 48, 2012-Ohio-5333, ¶ 19. The risk of injury from the camera cart is not so inherent to the sport of football that it cannot be eliminated. Horvath at ¶ 19, citing Pope v. Willey, 12th Dist. No. CA2004-10-077, 2005-Ohio-4744 (finding the injured party colliding with a truck on a road is not an inherent risk of riding an ATV); Goffe v. Mowell, 2d Dist. No. 98-CA-49 (Feb. 5, 1999) (faulty design of a racetrack is not an inherent risk of go-cart racing). As the risk of injury from the camera cart was not directly associated with the football game, it did not fall within the scope of Mr. Maiorana‘s assumption of risk.
{¶ 36} Appellant cites this court‘s decision in Schnetz, 2011-Ohio-3927, at ¶ 28, for the proposition that the primary assumption of the risk defense applies to both coparticipants and nonparticipants. In Schnetz, we wrote “a primary-assumption-of-the-risk analysis focuses exclusively upon the activity itself; if the activity is one that is inherently dangerous and from which risks cannot be eliminated, primary assumption of the risk is applicable.” True Grip‘s argument is without merit. The operation of the camera cart is not directly associated with the activity of a football game and, as such, is not within the scope of primary assumption of risk. “[O]nly those risks directly associated with the activity in question are within the scope of primary assumption of risk.” Gallagher at 432. In this case, Mr. Maiorana had assumed the risk of potential injury from the activities on the field, i.e., collision with a player or getting hit with a football. Mr. Maiorana had not assumed any potential risk that may befall him while he is working on the sideline of the field. As an example, if the Goodyear Blimp, a staple of most professional sporting events, had dropped a piece of equipment from the sky onto the videographer during the game, resulting in the same injury, no logical argument could be made that Mr. Maiorana had assumed the risk of injury because he was on the sideline of the field during a football game. So to here, it is not foreseeable or customary risk of Mr. Maiorana‘s profession if the camera cart operator fails to signal or identify if anyone was in his line of travel.
{¶ 37} True Grip also argues that Mr. Maiorana assumed the risk of his profession as he benefited professionally by positioning himself on the sideline of a football game, despite the risk of injury, citing Gehri v. Capital Racing Club, Inc., 10th Dist. No. 96APE10-1307 (1997). In Gehri, a jockey brought a personal injury claim against the racetrack
{¶ 38} Accordingly, True Grip‘s sixth, seventh, and eighth assignments of error are overruled.
C. True Grip‘s Ninth Assignment of Error
{¶ 39} In True Grip‘s ninth assignment of error, it alleges the trial court erred in refusing to allow jury instructions or jury interrogatories apportioning fault to non-parties.
{¶ 40} The purpose of jury interrogatories is to ” ‘test the correctness of a general verdict by eliciting from the jury its assessment of the determinative issues presented by a given controversy in the context of evidence presented at trial.’ ” Whitmer v. Zochowski, 10th Dist. No. 15AP-52, 2016-Ohio-4764, ¶ 94, quoting Cincinnati Riverfront Coliseum, Inc. v. McNulty Co., 28 Ohio St.3d 333, 336-37 (1986). The trial court controls the substance and form of jury interrogatories and may reject potential interrogatories deemed “ambiguous, confusing, redundant, or otherwise legally objectionable.” Whitmer at ¶ 96, citing Ramage v. Cent. Ohio Emergency Servs., Inc., 64 Ohio St.3d 97, 107-08 (1992). Accordingly, a reviewing court considers the trial court‘s decision whether to submit a proposed interrogatory to a jury under an abuse of discretion analysis. Whitmer at ¶ 96, citing Freeman v. Norfolk & W. Ry. Co., 69 Ohio St.3d 611, 614 (1994). The abuse of discretion standard is set forth in Section A of this decision.
{¶ 41} Pursuant to
For purposes of [apportionment to non-parties], it is an affirmative defense for each party to the tort action from whom the plaintiff seeks recovery in this action that a specific percentage of the tortious conduct that proximately caused the injury or loss to person or property or the wrongful death is attributable to one or more persons from whom the plaintiff does not seek recovery in this action. Any party to the tort action from whom the plaintiff seeks recovery in this action may raise an affirmative defense under
this division at any time before the trial of the action.
{¶ 42} Similarly, a jury instruction must provide a correct and relevant statement of the law that is pertinent to the facts of the case. State v. White, 142 Ohio St.3d 277, 2015-Ohio-492, ¶ 46. “[I]n reviewing a record to determine whether there is sufficient evidence to support the giving of an instruction, ‘an appellate court should determine whether the record contains evidence from which reasonable minds might reach the conclusion sought by the instruction.’ ” State v. McDonald-Glasco, 10th Dist. No. 17AP-368, 2018-Ohio-1918, ¶ 30, quoting Murphy v. Carrollton Mfg. Co., 61 Ohio St.3d 585, 591 (1991); Feterle v. Huettner, 28 Ohio St.2d 54 (1971). The trial court will not provide a jury instruction where there is no evidence to support an issue. Murphy at 591, citing Riley v. Cincinnati, 46 Ohio St.2d 287 (1976). The trial court‘s decision to provide or refuse a particular instruction is reviewed under an abuse of discretion analysis. McDonald-Glasco at ¶ 29, citing State v. Lipkins, 10th Dist. No. 16AP-616, 2017-Ohio-4085, ¶ 28.
{¶ 43} True Grip alleges the trial court abused its discretion precluding jury interrogatories and instructions to determine the comparative negligence of ESPN, Ohio State, CSC, and Ming Entertainment. The trial court denied True Grip‘s request for an interrogatory and instruction for these companies reasoning True Grip failed to present sufficient evidence that ESPN, Ohio State, CSC, or Ming Entertainment were responsible for Mr. Maiorana‘s injury.
{¶ 44} After careful review of the record, we find the trial court did not abuse its discretion precluding jury interrogatories or instructions as to the negligence of non-parties in this case. First, as to CSC, True Grip contends that it should have been able to argue that the spotters were to blame for the accident. However, Mr. Branch, the camera cart operator, placed the blame solely on himself and not the spotters. True Grip fails to point to any evidence in the record that CSC is negligent in the accident. As Mr. Branch acknowledged, he was the “captain of the ship.” (Tr. Vol. II at 192.) Similarly, True Grip points to the general contractual relationship between ESPN and other parties but fails to identify the necessary evidence as to how ESPN breached its agreements. While True Grip cites ESPN‘s general safety plan, it fails to identify how that plan contributed to Mr. Maiorana‘s injury. As such, the trial court‘s denial of jury interrogatories and instruction for ESPN was reasonable.
{¶ 45} True Grip also fails to point to evidence that Ming Entertainment, a contractor of ESPN that provided the cables attaching the video camera to the broadcast, had a duty to provide a clear path for the camera cart. As the injury was unrelated to the cables or the cable pullers, this argument is equally unavailing. Finally, the fact that the injury occurred in the Ohio State stadium is insufficient to warrant an interrogatory or instruction without some evidence that Ohio State breached its duty of care. While True Grip notes that there is a pending case in the Court of Claims, it fails to demonstrate how that, alone, warrants the inclusion of an interrogatory or instruction. Given these facts, the trial court‘s determination to not include an interrogatory or instruction for any of the non-parties as to apportionment was not an abuse of discretion. Berk v. Matthews, 53 Ohio St.3d 161, 169 (1990) (finding that when applying the abuse of discretion standard, a
{¶ 46} Accordingly, True Grip‘s ninth assignment of error is overruled.
D. True Grip‘s Tenth and Eleventh Assignments of Error
{¶ 47} In its tenth and eleventh assignments of error, True Grip alleges that the trial court abused its discretion allowing the Maioranas to use exhibit 22 and permitting the jury to resolve the amount of lost wages.
1. Admission of Exhibit 22
{¶ 48} True Grip contends the trial court abused its discretion permitting the Maioranas to use exhibit 22 as the document was produced after the discovery deadline, and only a few days before trial.
{¶ 49} The admission or exclusion of evidence rests within the discretion of the trial court. Fairrow v. OhioHealth Corp., 10th Dist. No. 19AP-828, 2020-Ohio-5595, ¶ 55, citing Beard v. Meridia Huron Hosp., 106 Ohio St.3d 237, 2005-Ohio-4787, ¶ 20. Therefore, the admission of exhibit 22 is reviewed under an abuse of discretion analysis. We set forth the analysis for an abuse of discretion review in Section A of this decision. We also note that “[e]ven in the event of an abuse of discretion, a judgment will not be disturbed unless the abuse affected the substantial rights of the adverse party or is inconsistent with substantial justice.” Beard at ¶ 20, citing O‘Brien v. Angley, 63 Ohio St.2d 159, 164-65 (1980).
{¶ 50} After careful review of the evidence, we find the trial court‘s decision to allow exhibit 22 was not an abuse of discretion. The record indicates Mr. Maiorana asserted lost wages or income since the filing of the complaint. Mr. Maiorana identified losses involving the Ohio High School Athletic Association (“OHSAA“) and other lost revenue from his injuries in his interrogatory responses and deposition. While produced after the discovery deadline, exhibit 22 documents Mr. Maiorana‘s earnings related to his contract with the OHSAA. It is also worth noting that the trial court allowed the use of exhibit 22 as part of an overall resolution that included other documentary evidence produced after the discovery deadline. Prior to trial, the Maioranas filed a motion in limine to exclude True Grip‘s engineering expert, Mr. Morr. The trial court denied the motion and allowed True Grip to use the 116 photographs or videos that were produced by Mr. Morr after the discovery deadline. True Grip argues that Mr. Morr did not testify in the case and the 116 exhibits were not used at trial. This argument is irrelevant as the trial court permitted the use of these exhibits, and it was within True Grip‘s discretion to not call Mr. Morr in the case. As both parties were permitted to use evidence produced after the discovery deadline, Mr. Maiorana had provided some support for his lost wages during discovery, and True Grip was able to cross-examine Mr. Maiorana as to the contents of exhibit 22, the trial court‘s decision to allow the use of exhibit 22 was not an abuse of discretion. Moreover, even if admission was unreasonable, the error did not affect the substantial rights of True Grip or was inconsistent with substantial justice.
2. Lost Wages
{¶ 51} True Grip argues that evidence of lost wages and business opportunity was improper without expert testimony. We review the trial court‘s decision to allow a non-expert witness to testify as to lost wages under an abuse of discretion analysis. McKahan v. CSX Transp., Inc., 10th Dist. No. 09AP-376, 2009-Ohio-5359, ¶ 13, citing Miller v. Bike Athletic Co., 80 Ohio St.3d 607, 616 (1998).
{¶ 52} Testimony from an expert witness is intended to “assist the trier of fact in determining a fact issue or understanding the evidence.” Miller at 611. As set forth in
{¶ 53} Here, the trial court found Mr. Maiorana was competent to testify as to his lost wages and any shortcomings in his testimony would go to the weight, not admissibility, of the testimony. True Grip was given the opportunity to cross-examine Mr. Maiorana as to his damages and identify any potential deficiencies it believed existed in his testimony. We note that Mr. Maiorana identified $31,000 in lost wages and business opportunity, but the jury only awarded $27,00 in lost wages. As such, True Grip‘s cross-examination apparently was effective in some respects. However, we find the trial court‘s determination that the testimony was relevant and within his personal knowledge for the lost wages was not an abuse of discretion.
{¶ 54} Accordingly, we overrule appellant‘s tenth and eleventh assignments of error.
E. True Grip‘s Twelfth Assignment of Error
{¶ 55} In its twelfth assignment of error, True Grip argues the trial court erred in awarding additional and duplicative expenses as costs it contends were improperly awarded under
{¶ 56} We review the trial court‘s determination of a motion for costs under an abuse of discretion analysis. Kelly v. Northeastern Ohio Univ. College, 10th Dist. No. 07AP-945, 2008-Ohio-4893, ¶ 38, citing Sherman v. Fifth Third Bank, 93 Ohio App.3d 63, 65 (2d Dist.1993). The abuse of discretion standard is provided in Section A of this decision.
{¶ 57} As set forth in
{¶ 58}
The person taking and certifying a deposition may retain the deposition until the fees and expenses that the person charged are paid. The person also shall tax the costs, if any, of a sheriff or other officer who serves any process in connection with the taking of a deposition and the fees of the witnesses, and, if directed by a person entitled to those costs or fees, may retain the deposition until those costs or fees are paid.
{¶ 59}
{¶ 60} Here, the trial court awarded as costs the video deposition for three witnesses as well as the corresponding written transcript. There was also the allowance of the transcript for Mr. Branch and Mr. Maiorana that were used as impeachment testimony during the trial. The record reflects that when the video depositions were played at trial the court reporter referred to the written transcript and did not type down the testimony as the video was played for the jury. In granting the Maiorana‘s motion for costs of the transcriptions, the trial court supported its ruling stating that the transcripts were required to be filed if a video deposition was to be utilized at trial per the court‘s local rules. Here, it is evident from the record that the parties understood that the filing of the written transcripts were required to use the video deposition. The transcripts of Mr. Branch and Mr. Maiorana were allowed as they were used repeatedly at trial for impeachment purposes and on redirect. After review of the evidence, we cannot say that the court abused its discretion by granting those items to the Maioranas as costs pursuant to
{¶ 61} Appellant‘s twelfth assignment of error is overruled.
F. The Maioranas’ Sole Assignment of Error
{¶ 62} In the Maioranas’ sole assignment of error, they allege that the trial court abused its discretion in denying a motion for prejudgment interest without
{¶ 63} We generally review the trial court‘s ruling on discovery matters under an abuse of discretion analysis. Roe v. Planned Parenthood S.W. Ohio Region, 122 Ohio St.3d 399, 421 (2009).
{¶ 64}
- fully cooperated in discovery proceedings,
- rationally evaluated his risks and potential liability,
- not attempted to unnecessarily delay any of the proceedings, and
- made a good faith monetary settlement offer or responded in good faith to an offer from the other party.
Kalain at syllabus.
{¶ 65} The final prong does not need to be satisfied if the party had a good faith, objectively reasonable belief, that it had no liability. Moskovitz v. Mt. Sinai Med. Ctr., 69 Ohio St.3d 638, 658-59 (1994); Kalain at syllabus. This exception, however, is strictly construed and does not excuse a defendant from satisfying the other three prongs. Whitmer v. Zochowski, 10th Dist. No. 15AP-52, 2016-Ohio-4764, ¶ 116, citing Galayda v. Lake Hosp. Sys., Inc., 71 Ohio St.3d 421, 429 (1994). “A trial court has discretion to determine whether the parties have exercised good faith, and an appellate court will only reverse such a determination if the trial court has abused its discretion.” Whitmer at ¶ 116, citing Moskovitz at 658.
{¶ 66} In the present case, the Maioranas argue that True Grip failed to make a good faith settlement offer and, as such, they were entitled to conduct discovery as to True Grip‘s assessment of the case. Pursuant to
They contend that they would have been able to present more evidence if allowed to receive the subpoenaed information at issue.
{¶ 67} As set forth previously, True Grip filed several dispositive motions as to the statute of limitations and Mr. Maiorana‘s assumption of risk. Still, True Grip pursued settlement of the case through mediation. Prior to the first mediation, the Maioranas noted that the Robinson v. Bates number at issue was $33,740.35 with lost earnings of $4,425.00. Robinson v. Bates, 112 Ohio St.3d 17, 2006-Ohio-6362. The Maioranas provided an opening figure of $371,000. According to True Grip, it provided a settlement offer of $15,000 as an opening bid while the original defendants did not make any settlement offer. The mediator concluded the mediation stating that, given the distance between the parties, it would harden the positions if they continued.
{¶ 68} On August 16, 2019, the trial court held its own mediation with both parties. True Grip states that the trial
{¶ 69} During the March 4, 2020 hearing, the trial court denied the Maioranas’ motion for prejudgment interest and request for discovery. The trial court explained its reasoning, noting that the parties exchanged several settlement figures throughout the case and participated in multiple mediations. Given the complex legal issues at play such as the late addition of True Grip under
{¶ 70} After careful review of the record, we find the trial court did not abuse its discretion in denying discovery of the insurance claim‘s file and attorney‘s file in this case as it found it was not necessary to resolve the motion for prejudgment interest. Here, the trial court was aware of the facts and legal arguments at issue having presided over the jury trial. While the claim‘s file would certainly have informed the trial court‘s analysis as to whether True Grip failed to make a good faith effort to settle, the trial court had unique insight into the efforts made by the parties to resolve the case as it conducted its own mediation. The trial court would have been familiar with True Grip and its insurer‘s evaluation of the case as well as knowledge of their efforts to resolve the case before trial. Accordingly, the trial court was best positioned to determine if True Grip participated in good faith negotiations. The trial court‘s reasoning, at least as to the comparative negligence aspect, is certainly validated by the jury reducing the verdict by 33.5 percent based on the comparative negligence of Mr. Maiorana. Given the many complex legal arguments leading up to trial, and the trial court‘s involvement in the mediation, its decision to not allow the Maioranas to conduct discovery before denying their motion for prejudgment interest was not unreasonable.
{¶ 71} For the foregoing reasons, we overrule the Maioranas’ sole assignment of error.
IV. CONCLUSION
{¶ 72} Having overruled True Grip‘s twelve assignments of error and the Maioranas’ sole assignment of error, we affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
SADLER and BEATTY BLUNT, JJ., concur.