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Moore v. Alliance Obstetrics3/11/2002
lates a retrospective, factual inquiry, without the use of hindsight judgment, into the decision making process of the utility's management.
We find the jury instruction as given by the trial court in this case was ambiguous and confusing. The jury is told to judge appellee's conduct or care prospectively looking forwards in time are then told to judge appellee's care and conduct in light of the circumstances at that time, not retrospectively. Notions of further, present, and past injury are all mentioned in the instruction. The jurors are instructed to judge appellee's conduct and/or care "at the time" while "looking forward." They are told not to look back retrospectively when the standard contemplates retrospective, factual inquiry. Though we believe we understand the intent of the instruction, we find a jury could easily be confused by it. After reviewing the jury charge as a whole, we find the jury charge probably mislead the jury in a matter materially effecting appellant's substantial rights. Accordingly, appellant's first assignment of error is sustained.
II., III.
In light of our disposition of appellant's first assignment of error, appellant's second and third assignments of error are moot. The January 4, 2001 Judgment Entry of the Stark County Court of Common Pleas is reversed. This matter is remanded to the trial court for further proceedings consistent with this opinion and law.
Wise, J. and Boggins, J. concur
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