594 N.E.2d 94 | Ohio Ct. App. | 1991
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *125 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *126 This is an appeal by defendant United Van Lines ("defendant") from a judgment of the court of common pleas in which the jury found defendant liable under Ohio's wrongful death statute. Judgment was entered against defendant in the amount of $633,035.48.
The present lawsuit arose out of an accident which occurred on May 8, 1985 on U.S. Route 30 in Ashland County, Ohio. Phillip Tong, while driving a semitrailer through a construction zone, lost control of his vehicle and collided with an unoccupied dump truck. The decedent, Kevin Stonerock, was a passenger in the vehicle and died as a result of the accident. Decedent apparently accompanied Tong on the trip to help Tong load and unload shipments. Tong was operating the semitrailer pursuant to a lease agreement between Trowbridge Storage Company ("Trowbridge") and defendant.
Plaintiff, Bobbie Jo Stonerock, as administratrix of decedent's estate, initiated the present lawsuit against Miller Brothers Paving, Inc. ("Miller Brothers"), Trowbridge, Tong, and defendant. Prior to trial, Trowbridge, Tong, and defendant filed motions for summary judgment which were overruled by the trial court. Plaintiff's motion for summary judgment was sustained to the extent that decedent was declared to be a member of the traveling public at the time of the accident. Plaintiff proceeded to trial on this theory against defendant, claiming that liability was statutorily imposed upon defendant as an Interstate Commerce Commission permit holder and, as a motor carrier, defendant was responsible for the negligence of the personnel furnished by the agent from whom the carrier leased the subject vehicle. Prior to trial, plaintiff voluntarily dismissed Trowbridge and Tong and, prior to the close of evidence, plaintiff reached a settlement with Miller Brothers. At the close of trial, defendant moved the trial court for a directed verdict on the basis that defendant was eligible to seek immunity under Ohio workers' compensation statutes. The trial court overruled defendant's motion. *127
Following the trial, the jury concluded that defendant was liable in the amount of $850,000 for compensatory damages and $8,035.48 for funeral and burial expenses. After subtracting payments made by Miller Brothers, plaintiff was awarded $633,035.48. The trial court also dismissed the pending cross-claims of Miller Brothers and defendant as moot.
On appeal, defendant asserts four assignments of error for this court's review:
"I. The trial court improperly overruled United Van Lines' motion for summary judgment.
"II. The trial court improperly overruled United Van Lines' motion for directed verdict.
"III. The trial court improperly instructed the jury on the law respecting the violation of traffic safety statutes and the sudden emergency defense.
"IV. Evidentiary errors occurring during trial had both the singular and cumulative effect of prejudicing United Van Lines' right to a fair trial."
As defendant's first assignment of error raises the issue as to whether summary judgment was properly granted in favor of plaintiff, we begin our discussion by recognizing several general principles. Summary judgment is a procedural device designed to eliminate the time and expense consumed by trial where there exists no genuine issue of material fact and, as a matter of law, the moving party is entitled to judgment. Civ.R. 56(C). The requisite elements for the granting of summary judgment were set forth by the Supreme Court in Temple v. WeanUnited, Inc. (1977),
"Civ.R. 56(C) specifically provides that before summary judgment may be granted, it must be determined that: (1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party." Id. at 327, 4 O.O.3d at 472,
Upon making a motion for summary judgment, the moving party has the burden of demonstrating that there is no genuine issue as to any material facts with regard to the critical issues presented. Harless v. Willis Day Warehousing Co. (1978),
In its first assignment of error, defendant argues that the trial court erred in overruling its motion for summary judgment on the basis that decedent was not a "member of the traveling public" and therefore was outside the class of persons protected under the Interstate Commerce Act. Since decedent was a helper to the driver of the Trowbridge vehicle, defendant insists that decedent was directly engaged in the business enterprise of defendant and therefore he does not fall within the protected class. Defendant argues that decedent cannot be considered a stranger to defendant since he was employed by Trowbridge which was directly engaged in performing moving services for defendant. Furthermore, since decedent received workers' compensation death benefits, defendant maintains it is clear that decedent died in the scope of his employment and therefore is not a member of the traveling public.
In the present case, the trial court granted partial summary judgment in favor of plaintiff, concluding that at the time of decedent's death, decedent was a member of the traveling public within the meaning of the Interstate Commerce Act. Accordingly, any liability that attaches to defendant does so through application of federal law, specifically the Interstate Commerce Act and the regulations promulgated by the Interstate Commerce Commission ("I.C.C."). These regulations, and the statute pursuant to which they were promulgated, were created in order to correct widespread abuses by authorized interstate carriers who would immunize themselves from liability to the public by leasing trucks from third parties. American Trucking Assns. v.United States (1953),
Specifically, in Transamerican Freight, the court recognized:
"* * * As a consequence, the Commission has developed and designed its responsibility-and-control regulations in order to prevent a sharing of operating authority under the guise of a lease of equipment. With only special exceptions, the regulations require the lessee to ship under its own bill of lading, to compensate the lessor on an established basis, to inspect the equipment, and to assume full control and responsibility for the operation. * * * The regulations, however, do not require the lessee itself to operate the equipment; the lessor may perform that task by furnishing the driver with *129
the equipment. But the lessee must assume the responsibility for the shipment and have full authority to control it." Id. at 36,
In the present case, defendant's liability turns upon the issue of whether decedent was a member of the traveling public for whose death defendant is liable under federal law. The trial court concluded that decedent was indeed a member of the traveling public, following the reasoning of the court inProctor v. Colonial Refrigerated Transp., Inc. (C.A.4, 1974),
The district court had instructed the jurors that if they found Bales was an independent contractor at the time of the accident, then they should return a verdict in favor of Colonial, which they ultimately did. On appeal, the court reversed and held that federal law eliminated the concepts of independent contractors and required Colonial to assume responsibility for the negligence of Bales as the driver of the leased vehicle. While Colonial argued that its statutory liability did not extend to the plaintiff who had been injured while acting as an employee as the lessor Bales, the court emphasized that the plaintiff had not been the owner of the vehicle and had no contractual relationship with Colonial. The court ultimately concluded that the plaintiff "* * * was as much a stranger to Colonial as a shipper or a member of the *130 traveling public, and to deny him recovery upon the independent contractor theory would undercut the primary purpose of the regulatory design. * * *" Id. at 92.
We note two state courts which have also considered this issue and have adopted the reasoning espoused by the court inProctor. In Schindele v. Ulrich (Minn. 1978),
"* * * Like the court in Proctor, we think the lessee's assumption of `full responsibility in respect to the equipment it is operating' requires it to assume liability to a codriver for injury caused by the driver's negligence." Id.,
In Matkins v. Zero Refrigerated Lines, Inc. (1979),
"One of the principal goals of the ICC regulation imposing responsibility on the carrier was to provide the public with financially responsible carriers. Indiana Refrigerator Lines,Inc. v. Dalton,
Defendant, however, has cited White v. Excalibur Ins. Co.
(C.A.5 1979),
Subsequent to the court's decision in White, supra, the Superior Court of Pennsylvania addressed the divergent case law resulting from the federal court's decisions. In Wilkerson v.Allied Van Lines, Inc. (1987),
After addressing the two views emanating from the federal courts, the Wilkerson court ultimately concluded that the view espoused by the court in Proctor was the better approach:
"We agree with this view. We do so because such a view is consistent with the purposes sought to be achieved by the federal law. To hold that Wilkerson was not entitled to recover from the carrier under whose certificate of necessity the truck was being operated would defeat the salutary purpose of ensuring compensation for innocent persons who have been injured as a consequence of the carrier's doing business. Although it is true that Jordan, as lessor, could not have recovered from the carrier if he had been injured by his own negligence, or the negligence of one of his employees, Wilkerson had *132
no direct relationship with the carrier and no ownership interest in the leased vehicle. Therefore, he was a member of the public intended to be benefitted by the vicarious liability provisions of federal law. He was a member of the public within the intendment of federal law, and, as such, could recover against Allied for the negligence of Jordan." Wilkerson, supra,
In the present case, we find no error by the trial court in granting partial summary judgment in plaintiff's favor on the basis of its conclusion that decedent was a member of the traveling public for purposes of federal law. We believe that decedent's employment as a helper, an individual who had been furnished by Trowbridge to assist the driver in loading and unloading the truck, places decedent in a position which was intended to be protected by federal law. See Proctor, supra;Wilkerson, supra. Accordingly, defendant's first assignment of error is not well taken and is overruled.
Defendant next argues that the trial court improperly overruled its motion for directed verdict since under Ohio workers' compensation law decedent's immediate employer, Trowbridge, is immune from suit and plaintiff's action against defendant is similarly barred. Defendant insists that it, as a principal, cannot be held vicariously liable for the negligence of its agent if the agent is immune from suit. Defendant argues that as the lease agreement between defendant and Trowbridge required Trowbridge to provide workers' compensation coverage, defendant substantially complied with Ohio law by contractually ensuring coverage for personnel operating equipment under its I.C.C. permit and it should therefore be permitted the same protection from suit.
Civ.R. 50(A)(4) provides:
"* * * When a motion for a directed verdict has been properly made, and the trial court, after construing the evidence most strongly in favor of the party against whom the motion is directed, finds that upon any determinative issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such party, the court shall sustain the motion and direct a verdict for the moving party as to that issue."
In the third and fourth paragraphs of the syllabus inO'Day v. Webb (1972),
"A motion for directed verdict or a motion for judgment notwithstanding the verdict does not present factual issues, but a question of law, even though in deciding such a motion, it is necessary to review and consider the evidence.
"It is the duty of a trial court to submit an essential issue to the jury when there is sufficient evidence relating to that issue to permit reasonable minds *133 to reach different conclusions on that issue, or, conversely, to withhold an essential issue from the jury when there is not sufficient evidence relating to that issue to permit reasonable minds to reach different conclusions on that issue."
Defendant argues that it is entitled to vicarious immunity by virtue of the workers' compensation benefits paid by Trowbridge. However, we cannot agree. R.C.
"Sections
While defendant seeks immunity from liability pursuant to R.C.
Defendant argues in its third assignment of error that the trial court improperly instructed the jury with regard to the violation of traffic safety statutes and the sudden emergency defense. Over objection, the trial court charged the jury as to alleged traffic violations for failure to maintain control, driving in marked lanes, and driving upon a closed highway. Defendant insists that these statutes have no application to the evidence in the present case since the primary issue before the jury was whether Tong's speed was excessive under the circumstances. Defendant also contends that the trial court failed to instruct the jury on sudden emergency which would excuse a driver's failure to maintain control of his vehicle on the basis that since the evidence demonstrated that Tong had control of his vehicle until a road defect caused him to suddenly lose control of his vehicle. Finally, defendant contends that the trial court should have charged the jury that Tong was traveling at a lawful speed, below the posted limit, rather than instructing the jury that a speed less than fifty-five m.p.h. may be unreasonable and improper.
Specifically, defendant argues that the trial court erred in charging the jury on the law respecting alleged violations of R.C.
Upon review of the evidence presented at trial, we conclude that there exists no error regarding the trial court's instruction concerning the three highway statutes of which defendant complains. R.C.
We also find no error by the trial court in instructing the jury as to R.C.
Finally, we conclude that there exists no error in the trial court's instructing the jury with regard to R.C.
While defendant insists that the jury should not have been instructed regarding any of these statutes, the violation of which would constitute negligence on the part of the driver, we note that the trial court nevertheless gave an instruction that a driver could be excused from his failure to comply with these statutes if there existed a sudden emergency arising out of the conditions which existed. Specifically, the trial court gave the following instruction regarding sudden emergency:
"Here again it is for you, the jury, to decide whether the defendant's driver violated the statute; and, if so, was it excusable under the circumstances then existing.
"An operator of a motor vehicle who fails to comply with a statute is excused from such failure to comply with the statute and he avoids the legal effect of negligence arising therefrom by establishing by a preponderance of the evidence that without fault on his part, and because of circumstances over which he had no control, he was confronted by a sudden and unforeseeable emergency which made compliance with such statute impossible. *136
"If you find that these conditions existed, the defendant is excused from a violation of such statute. If you find that the defendant was excused from complying with the statute because of a sudden emergency, he is still required to use ordinary care under the circumstances. Ordinary care is such care that a reasonably prudent person would use under the same or similar circumstances."
While the trial court did not repeat the sudden emergency charge after each and every charge of a safety statute violation, we do not conclude that there exists prejudicial error in the trial court's failure to do so.
Finally, defendant claims error in the trial court's instructing the jury with respect to a reasonable speed. Defendant cites the following instruction given by the trial court:
"In this case a speed in excess of 55 miles per hour standing alone is considered unreasonable. The court instructs you that a speed less than that fixed by the state may, under certain circumstances be unreasonable and improper.
"Whether the rate of the speed of the defendant's vehicle, whatever you find it to be, or to have been, was reasonable or proper in view of all of the surrounding circumstances, is for you, the jury, to determine. No particular rate of speed less than 55 is a conclusive violation of the law."
Defendant argues that a proper charge would simply have informed the jury that Tong was proceeding at a lawful speed, which was below the posted limit. However, we find no prejudice to defendant in the failure to give such an instruction. Rather, given the circumstances of any individual case, the operation of a motor vehicle, even if being driven below the posted speed limit, may be unreasonable given the circumstances which exist. Accordingly, defendant's third assignment of error is not well taken and is overruled.
In its fourth assignment of error, defendant contends that the trial court improperly allowed evidence to be introduced which tended to prejudice defendant's right to a fair trial. Specifically, defendant argues that it was improper to allow evidence of the absence of prior accidents to be introduced. We recognize that a trial court's decision whether to admit or exclude certain evidence from trial is within the sound discretion of the trial court, and such a ruling will not be reversed unless there has been a clear and prejudicial abuse of discretion. O'Brien v. Angley (1980),
Defendant next argues that plaintiff's counsel, during closing arguments, inappropriately referred to materials not in evidence before the jury, such as newspaper articles, which were intended to influence the jury's monetary award. Specifically, defendant cites the following:
"The recent van Gogh painting sold for 20.2 million dollars. It is a painting. It is not a person. I saw where this race car driver gets 1.9 million dollars for the stickers on his uniform and on his car. That is for stickers on a car.
"Here is a million dollars if you catch a certain fish. Michael Jackson, 70 million dollars for one record; 50 million dollars for another record. Ralph Sampson, basketball player, four million, four years. This week Oral Hershiser, World Series shoots for ten million for five years."
In the context of misconduct of counsel in opening statement, the Supreme Court of Ohio stated in paragraph two of its syllabus in Maggio v. Cleveland (1949),
"Counsel should be accorded latitude by the trial court in making his opening statement, but when he deliberately attempts to influence and sway the jury by a recital of matters foreign to the case, which matters he knows or ought to know cannot be shown by competent or admissible evidence, or when he makes a statement through accident, inadvertence or misconception which is improper and patently harmful to the opposing side, it may constitute the basis for ordering a new trial or for the reversal by a reviewing court of a judgment favorable to the party represented by such counsel."
This holding has been declared to be equally applicable to closing arguments. Drake, supra. See, also, Pang v. Minch
(1990),
Defendant argues that plaintiff also improperly injected insurance coverage into the case. Defendant cites plaintiff's cross-examination of an annuity broker. Plaintiff asked whether the witness was a representative of *138 the insurance industry. In overruling defendant's motion for a mistrial on the issue, the trial court recognized that the purpose of defendant's question was simply to show bias, in that the witness always appeared as a witness on behalf of the defense. We conclude that the trial court did not abuse its discretion in allowing the cross-examination conducted by plaintiff's counsel with regard to the background, bias, and expertise of defendant's expert witness.
Defendant also argues that plaintiff's counsel compounded the alleged foregoing errors by attempting to invoke the passion of the jury when he ushered decedent's widow and young daughter into the courtroom and took them into his arms. We find nothing improper in the fact that plaintiff and her daughter were present and attended counsel's closing argument. While defendant claims that plaintiff's counsel also cried, the trial court stated:
"Let the record show I don't remember him crying. I heard his voice crack. The wife and the child, I suppose, could have been in the courtroom at all times. They were parties. I don't think it has prejudiced your case in view of the fact the court instructed the jury that they are not to be governed by sympathy in the case. Hopefully they will follow my instructions."
Finally, defendant insists that plaintiff improperly asked the jury to place themselves in the place of plaintiff when determining the amount of damages which should be awarded. This type of argument is frequently referred to as the "golden rule" argument. However, upon review of counsel's remark, it appears that counsel requested that the jury understand the elements of the case and that he did not ask the jurors to place a value on those elements as to each of them personally. Rather, counsel requested that the jury assess the concepts addressed and come up with a fair and accurate amount to which plaintiff would be entitled. Accordingly, plaintiff's fourth assignment of error is not well taken and is overruled.
On cross-appeal, plaintiff presents but one assignment of error:
"The trial court committed prejudicial error in overruling plaintiff's motion for a directed verdict that Tong was negligent as a matter of law and in instructing the jury on sudden emergency."
In paragraph eight of the syllabus in Pang, supra, the Supreme Court held:
"Where the court of appeals determines that the trial court committed no error prejudicial to the appellant in any of the particulars assigned and argued in the brief thereof, App.R. 12(B) requires the appellate court to refrain from consideration of errors assigned and argued in the brief of appellee on cross-appeal which, given the disposition of the case by the appellate court, are not prejudicial to the appellee. The judgment or final order of the trial court *139 should, under such circumstances, be affirmed as a matter of law by the court of appeals."
As we have overruled each of defendant's assignments of error, we conclude that, pursuant to the announcement inPang, it is appropriate that we do not consider plaintiff's assigned error. On this basis, plaintiff's assignment of error on cross-appeal is overruled.
Based upon the foregoing, defendant's assignments of error are not well taken and are overruled. Similarly, plaintiff's assignment of error raised on cross-appeal is overruled. The judgment of the trial court is hereby affirmed.
Judgment affirmed.
BOWMAN and JOHN C. YOUNG, JJ., concur.
"(a) Contract requirements. The contract, lease, or other arrangement for the use of the equipment:
"* * *
"(4) Exclusive possession and responsibilities. Shall provide for the exclusive possession, control, and use of the equipment, and for the complete assumption of responsibility in respect thereto, by the lessee for the duration of said contract, lease, or other arrangement * * *."
Upon review, this court finds no substantive difference between the statutes and regulations in effect at the time of the Proctor decision and the present statutes and regulations, and, accordingly, we conclude that the decision in Proctor,supra, is equally applicable to the present statutory and regulatory scheme.