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Jackman v. Nicholson3/29/2001
v. Metrohealth Ctr. (1995), 104 Ohio App.3d 654, 656. Consequently, this court will not reverse a trial court's decision on this issue absent an abuse of discretion; i.e., a showing that the trial court's decision was unreasonable, arbitrary or unconscionable and not merely an error of law or judgment. Id.
Plaintiff argues that the discovery of the notes and the subsequent improper treatment of the incident by the court, i.e., giving a prejudicial jury instruction and failing to grant a mistrial, constitutes an irregularity in the proceedings which prevented a fair trial. As we have held in our first assignment of error, that contention is well-taken and constitutes an error by which plaintiff was prevented from having a fair trial, thus, also justifying granting of a new trial following the defense verdict.
Plaintiff also points to two remarks made by counsel for defendant during closing argument as being prejudicial and necessitating a new trial. Initially, we note that "great latitude is afforded counsel in the presentation of closing argument to the jury." Pang v. Minch (1990), 53 Ohio St. 3d 186, paragraph two of the syllabus. Moreover, a trial court's rulings with respect to closing argument will not be reversed absent an abuse of discretion. Kubiszak v. Rini's Supermarket (1991), 77 Ohio App.3d 679, 688.
Plaintiff first challenges the following statement by defense counsel: "This case is a red light case. That's what the Court told you from the very beginning." (Tr. 214.) Counsel's statement referenced a remark made by the court in voir dire to the effect that cases such as the one before it were sometimes referred to by attorneys as "red light" cases. Plaintiff argues that defense counsel's reference to the court's remark constituted a blatant attempt to coax the jury into believing that the trial court was of the opinion that plaintiff had run a red light and the jury should be of the same opinion. Since the case did involve, as its primary issue, the question of who had the light entitling proceeding, either straight through or on a left turn, the statement was not prejudicial.
The second statement challenged by plaintiff is, as follows:
One of the things that you are going to receive is an instruction regarding red light. I ask you to read this instruction when you're back there, pay attention to it and what it has to say. I won't read it all to you because I know you all know how to read. What it says is the plaintiff ran a red light. She is negligent as a matter of law. That's evidence, the end of that, the conclusion and that's in that instruction. * [Tr. 4.]
Plaintiff contends that defense counsel's statement that the instructions said that "plaintiff ran a red light" was false and was intended to improperly convince the jury that the court believed defendant's version of the facts and the legal conclusions derived therefrom.
In Snyder v. Stanford (1968), 15 Ohio St.2d 31, at 35, the Ohio Supreme Court stated:
In the instant case, however, assuming the statements of appellees' counsel were objectionable, appellant failed, at the time the statements were made, to object or otherwise apprise the court of the allegedly prejudicial effect of the comments so that any curative action warranted could have been taken by the trial court. Having failed to make proper and timely objections, appellant is precluded from relying on the alleged misconduct of opposing counsel as a basis for reversal of the judgment. *.
Defense counsel's statements in closing argument about the court's instruction were improper and objectionable, but plaintiff failed to timely object or to request a curative instru
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