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Waller v. Phipps9/14/2001
DECISION.
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed as Modified
The defendants-appellants, Errol G. Phipps and McGill Smith Punshon, Inc., appeal from a judgment of $172,238.20 rendered against them, and in favor of Tammy and William Waller, following a jury trial in the court below. On appeal, they present three assignments of error: (1) that the trial court erred by failing to grant them a mistrial, (2) that the trial court erred by permitting the Wallers to solicit an opinion from a lay witness, and (3) that the trial court erred by overruling their motion for a directed verdict and instructing the jury on future medical expenses when there was no expert testimony that such expenses were either likely or for any specific amount. For the reasons that follow, we do not find merit in either the first or the second assignment of error. But we agree that the Wallers failed to present sufficient evidence to authorize an award of future medical expenses, vacate that part of the judgment that the jury specifically allocated for this component of the Wallers' damage claims, and affirm the judgment as modified.
I.
The negligence action against Phipps and his employer, McGill Smith Punshon, Inc., arose out of an automobile accident. Phipps was driving within the scope of his employment when he allegedly turned left in front of Tammy Waller, whose vehicle was coming in the opposite direction. Phipps testified that Tammy Waller's vehicle was hidden by a depression on the hilly road. Tammy Waller disputed this, testifying that, at the time Phipps turned in front of her, both vehicles were visible to each other. Tammy Waller's vehicle collided with the rear of Phipps's van.
In their first assignment of error, Phipps and Punshon argue that the trial court erred by not granting their motion for a mistrial after counsel for the Wallers disclosed in opening statement that Phipps had been cited by the police as a result of the accident. There was no further elaboration on this point. A defense objection to the disclosure was overruled, opening statements concluded, and court adjourned for the day. The next day, the defendants moved for a mistrial outside the hearing of the jury. The motion was overruled, but the trial court subsequently gave the following instruction to the jury: "During one of the counsel's statements, there was an objection which the Court overruled. On further review, I'm going to sustain that objection and urge you, if you remember that remark at all, to disregard that remark."
As this court has previously noted, "It is beyond dispute that, under current Ohio law, evidence of whether the alleged tortfeasor was arrested or issued a citation for the underlying traffic accident is inadmissible in a negligence action." Valleau v. Lynn (Mar. 6, 1998), Hamilton App. No. C-970340, unreported, citing Wolfe v. Baskin (1940), 137 Ohio St. 284, 28 N.E.2d 629, paragraph two of the syllabus; Barge v. House (1952), 94 Ohio App. 515, 110 N.E.2d 425; Larson v. Gibson (Jan. 5, 1995), Mahoning App. No., 93 CA 47, unreported.
In Valleau, we reversed the judgment because defense counsel disclosed to the jury, not once but twice, that his client had not been cited by the police as a result of the accident that gave rise to the litigation. The disclosure in that case was particularly egregious since an objection to the disclosure in opening statement had been sustained, and yet defense counsel again solicited the information from the defendant during trial. Further, defense counsel in opening statement had directly linked the absence of a citation to the lack of fault on behal
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