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Miller v. Miller & Miller Accountants9/5/2001
same or similar circumstances. The amount of care increases in proportion to the danger that reasonably should be foreseen. Ordinary care is a relative term. The test, though, is still ordinary care under the circumstances.
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The first question: Was the defendant Miller and Miller Accountants negligent in a way that proximately caused injury to the plaintiff Raymond Miller? If you believe they proved that they were, you circle, yes. If they failed to prove that they were, you would circle, no. Vol. IV T. at 472, 474, 475 and 479, respectively.
The trial court also cautioned the jury " he opening statements and closing arguments of the lawyers are designed to assist you, but they are not evidence." Vol. IV T. at 469. Appellee's closing argument also centered on negligence (Vol. IV T. at 458-460), and appellee's counsel stated appellant was "grossly negligent." Vol. IV T. at 456. The granting of a new trial lies in the trial court's sound discretion. Civ.R. 59. In order to find an abuse of that discretion, we must determine the trial court's decision was unreasonable, arbitrary or unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217. Based upon the foregoing clear instructions on negligence, including the use of the comparative negligence format, and the jury returning the interrogatories on negligence and comparative negligence, we find the trial court erred in ordering a new trial or remittitur based upon the simple analogy given in closing argument. Assignment of Error I is granted.
II.
Appellant claims the trial court erred in granting a new trial without affording him notice and a hearing. Given our decision in Assignment of Error I, this assignment is moot.
III.
Appellant claims the trial court erred in instructing the jury on implied assumption of the risk/contributory negligence. We disagree. The trial court gave each party the opportunity to object to the jury charge. Appellant's counsel objected as follows: To that extent Mr. Witkowski and his affirmative defense raised both, but I don't think assumption of risk, I think I have trouble with his arguing that Mr. Miller was assuming a risk and, therefore, was negligent.
I don't believe that the charge should have an assumption of the risk charge in there where it speaks of assuming the risk. Vol. IV T. at 423.
The trial court and counsel then engaged in a discussion regarding assumption of the risk doctrine and its merger into comparative negligence: THE COURT: Again, as I understand, assumption of the risk is merged into a comparative negligence case. So whether it's called assumption of the risk or comparative negligence it's still compared to the defendant's negligence for purposes of resolving the case. So I'll try to make sure that I make clear to you when we're talking about comparative negligence in the interrogatories we're talking about comparative negligence or assumption of the risks.
MR. BERTSCH: That's what I'm objecting to. I don't think assumption of the risk – I don't have a problem with Mr. Witkowski arguing it – I don't think it should be in the charge as a principle. I don't think it has application to case.
THE COURT: I don't understand that it ceases to exist in this context. It is treated like comparative negligence. It's not as it was under the old law.
MR. BERTSCH: I think it has a different name. I think assumption of the risk is expressed or implied. Vol. IV T. at 423-424.
Civ.R. 51 governs instructions to the jury. Said rule states in pertinent part " n appeal, a party may not assign as error the giving
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