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Wagner v. Roche Laboratories5/12/1999
port the express-warranty claim, the court erred in presenting the issue to the jury. See Ricks v. Jackson (1959), 169 Ohio St. 254, 8 O.O.2d 255, 159 N.E.2d 225, paragraph three of the syllabus.
Under Ricks, the two issue rule "does not apply where there is a charge on an issue upon which there should have been no charge." Id. at paragraph four of the syllabus. The majority attempts to distinguish this case from Ricks, however, by concluding that greater prejudice resulted from the improper charge in that case. The quantum of prejudice, however, is not the barometer for application of the Ricks analysis. Here, as in Ricks, there was no evidence supporting the improper charge. In both cases, the jury was allowed to believe that a certain state of facts was possible where, under the evidence, it was not. See Denzer v. Terpstra (1934), 129 Ohio St. 1, 7, 1 O.O. 303, 306, 193 N.E. 647, 649. It cannot be said, then, that the jury would have arrived at the same Conclusion absent the error. As the majority here concedes, in cases such as this, where an instruction is given with no evidence to support it, prejudice is generally presumed.
Even if the state of the plaintiff's evidence had warranted a breach-of-express-warranty charge here, the instruction the court offered was the wrong one. Its breach-of-express-warranty charge did not require the jury to find that Wagner relied on any representation by Roche. Reliance is a necessary element of the cause of action. Hence, the jury was permitted not only to find Roche liable on a charge that was unsupported by the evidence, but also to find Roche liable on that charge without finding all the necessary elements.
In Wagner v. Roche Laboratories (1996), 77 Ohio St.3d 116, 671 N.E.2d 252 (Wagner I), this court concluded that Wagner had presented enough evidence on her failure-to-warn claim to overcome Roche's motion for directed verdict. But we remanded to the court of appeals for consideration of Roche's claim that a new trial was warranted. Id. at 124, 671 N.E.2d at 259. Upon remand, Roche successfully demonstrated that there was no evidence supporting Wagner's breach-of-express-warranty claim and that, under Ricks, the faulty instruction on that issue tainted the process to Roche's prejudice. Having so demonstrated, the court of appeals properly remanded for a new trial.
I would, therefore, affirm the judgment of the court of appeals.
Moyer, C.J., and Lundberg Stratton, J., concur in the foregoing Dissenting opinion.
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