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Neal v. Johnson2/19/2004
mstances courts have upheld zero damage awards even when the victim of an accident immediately went to the hospital. Ms. Johnson testified that the impact was not severe and that Ms. Neal's neck and back complaints existed prior to the accident. Ms. Neal testified that at impact she was jolted out of her seat and her hat flew off, and also testified to the accident's effects on her, but offered no other evidence about the severity of the accident, even though her daughter was a passenger in the car at the time. Moreover, although her husband testified about damage to the car, she did not seek to recover the cost for its repair. Therefore, the zero damages award is not against the weight of the evidence, because the jury could fairly conclude that the collision was minor and that Ms. Neal's medical bills, including her transport to the hospital and emergency room visit, were altogether unwarranted.
.Although the verdict is not against the manifest weight of the evidence, it must still be reversed if the jury was unfairly influenced to return it, and the inadmissible hearsay statement that Neal was "faking it" in order to make an insurance claim was inflammatory and highly prejudicial. Moreover, a car accident victim should have the opportunity to obtain at least a preliminary medical evaluation in most instances, unless the evidence shows that the contact between the vehicles was very minor.
.Therefore, even though the error concerns a single piece of testimony, the potential impact of that testimony cannot be ignored. Under the circumstances we cannot conclude, with the certainty required, that the jury would have reached the same result in the absence of the prejudicial hearsay testimony. The judge erred in admitting that testimony, and we cannot find the error harmless.
.The first, third, fourth, and fifth assignments of error are overruled. The second assignment of error is sustained.
.Judgment reversed and remanded.
FRANK D. CELEBREZZE JR., J., CONCURS.
PATRICIA A. BLACKMON, P.J., CONCURS IN JUDGMENT ONLY.
APPENDIX - ASSIGNMENTS OF ERROR
"I. THE TRIAL COURT ERRED WHEN IT DENIED PLAINTIFF-APPELLANT'S MOTION FOR NEW TRIAL."
"II. THE TRIAL COURT ERRED WHEN IT FAILED TO RULE UPON PLAINTIFF-APPELLANT'S OBJECTION AND MOTION TO STRIKE AT TRIAL."
"III. THE DEFENDANT-APPELLEE COMMITTED PREJUDICIAL ERROR AT TRIAL WHICH WAS UNEXPECTED AND WAS A SURPRISE TO THE PLAINTIFF-APPELLANT THAT ORDINARY PRUDENCE COULD NOT HAVE GUARDED AGAINST."
"IV. THE PLAINTIFF-APPELLANT WAS PREJUDICED BY IRREGULARITIES DURING TRIAL."
"V. THE JURY VERDICT DEFIES THE WEIGHT OF THE EVIDENCE AND IS OTHERWISE INCOMPREHENSIBLE AND IS BASED ON SPECULATION, WHICH RESULTED IN PREJUDICE TO THE PLAINTIFF-APPELLANT."
It is ordered that the appellant recover from appellee costs herein taxed.
It is ordered that a special mandate issue out of this court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
ANNE L. KILBANE JUDGE
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