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Haller v. Goodyear Tire & Rubber Co.6/26/2002
portion of the instructions will not constitute reversible error unless the instructions are so misleading that they prejudicially affect a substantial right of the complaining party." (Citations omitted.) Wozniak v. Wozniak (1993), 90 Ohio App.3d 400, 410; see, also, Kokitka v. Ford Motor Co. (1995), 73 Ohio St.3d 89, 93.
Significantly, " he instructions found in Ohio Jury Instructions are not mandatory[, but rather] are recommended instructions based primarily upon case law and statutes[.]" State v. Martens (1993), 90 Ohio App.3d 338, 343.
Section 25.20(2) of Ohio Jury Instructions provides:
"The court has instructed you on all the law necessary for your deliberations. Whether or not certain instructions are applicable may depend upon the conclusions you reach on the facts by a preponderance of the evidence. For example, the court does not know whether you will need to apply the instructions on the measure of damages or comparative negligence since that would depend upon the verdict you reach. If you have an impression that the court has indicated how any disputed fact should be decided, you must put aside such an impression because that decision must be made by you, based solely upon the facts presented to you in this courtroom." (Emphasis added.)
Goodyear timely objected to the omission of the above italicized language in this portion of the jury charge. Aside from the omitted portion, the trial court's jury instructions on this matter were virtually identical to those contained in Section 25.20(2) of Ohio Jury Instructions.
Goodyear has argued that omitting the above italicized language was tantamount to instructing the jury to return a verdict for Ms. Haller, especially in light of the fact that the trial court refused to submit a defense verdict form to the jury, and, therefore, the trial court impermissibly usurped the jury's role as finder of fact. We cannot agree. The trial court properly instructed the jury that certain instructions may or may not apply depending upon the conclusions reached by the jury on the facts by a preponderance of the evidence. The omitted portion simply provides a concrete example of circumstances in which a given instruction may or may not apply. The instructions contained in Ohio Jury Instructions are not mandatory. Martens, 90 Ohio App.3d at 343. Accordingly, viewing the instructions as a whole, we cannot say that the trial court erred in omitting the above italicized portion of the standard instruction. Furthermore, even if such omission constituted error, we find that such error did not prejudicially affect the substantial rights of Goodyear. Goodyear's second assignment of error is overruled.
III.
Appellant's assignments of error are overruled. The judgment of the Summit County Court of Common Pleas is affirmed.
Judgment affirmed.
WILLIAM G. BATCHELDER
SLABY, P. J. CONCURS
CARR, J. CONCURS IN JUDGMENT ONLY
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