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Jackman v. Nicholson3/29/2001
ich he later determined was driven by plaintiff, proceeded into the intersection on the red traffic signal and struck defendant's vehicle as it turned northbound onto Grandview Avenue from eastbound Dublin Road. Although Gross admitted on cross-examination that he had no specific recollection as to whether he saw the collision or the red light first, he averred that he must have seen the red light first because he slowed his vehicle to stop at the red light prior to the time the collision occurred.
A general verdict was returned for defendant after the jury assigned seventy-five percent negligence to plaintiff and twenty-five percent negligence to defendant. The trial court filed a judgment entry on February 23, 2000, dismissing plaintiff's complaint with prejudice. On March 9, 2000, the trial court filed a "Supplemental Judgment Entry" dismissing intervenor Community Insurance Company's complaint with prejudice. On March 13, 2000, plaintiff filed a motion for new trial, which was denied by the trial court by entry dated April 7, 2000.
Plaintiff now appeals, asserting two assignments of error, as follows:
. The trial court erred by reading a prejudicial instruction to the jury in the middle of the trial and by not granting plaintiffs' motion for a mistrial.
. The trial court erred by not granting plaintiffs' motion for a new trial.
By the first assignment of error, plaintiff contends that the trial court erred in giving a "prejudicial" instruction to the jury and in failing to grant their motion for mistrial. After plaintiff completed her testimony, defense counsel requested a short recess. Upon return from the recess, the court bailiff notified the court that a female juror had reported to the bailiff that defendant had dropped some notes to the jury in the ladies' restroom. According to the bailiff, after the juror reported the incident, the bailiff went to the restroom and found the notes in one of the stalls. The bailiff spoke to another female juror outside the restroom and ascertained that the notes were seen or read by at least two jurors.
Since the tone of the notes suggested that they were written by plaintiff, but the juror indicated they were dropped by defendant, the court inquired of both counsel, and it was soon determined that the notes were written by plaintiff. The notes were made part of the record by the court and identified as "Court's Exhibit 1," "Court's Exhibit 2," and "Court's Exhibit 3." Exhibit 1 states: "To the jury[.] If I knew I had run a red light - why would I go thru all this time + expense to bring this to trial[.]" Exhibit 2 states: "Odds are in my favor as to what happened. How many people see a lot of people run red lights? I've only seen 2 in my whole life. However, how often do people see other people coming towards them, + turn in front of them to turn left." Exhibit 3 states: "I knew the light was yellow + I saw her facing me. She didn't know what color the light was + she didn't see me - she wasn't paying attention. A pause between the 3 cars indicates there was oncoming traffic going towards her. Are we going to be able to let the jury know why this case has gone to trial - they might wonder why a simple traffic accident has necessitated a jury trial."
Plaintiff's counsel explained that the notes must have accidentally fallen out of a notebook plaintiff carried with her. Counsel further contended that the notes were simply memoranda of points plaintiff wanted counsel to emphasize in his arguments to the jury.
After lengthy off-the-record discussions relating to the notes, the court ultimately concluded that it would instruct the jury as to what had transpired with regar
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