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Miller v. Miller & Miller Accountants9/5/2001
or the failure to give any instruction unless the party objects before the jury retires to consider its verdict, stating specifically the matter objected to and the grounds of the objection." No objections were made at the close of the charge or to the charges agreed to by the parties. From the discussion reproduced supra, we do not find that appellant has preserved the objection to the comparative negligence charge. In fact, the trial court modified the instructions to conform to the issue of implied or express assumption of the risk as was argued by appellant: Miller and Miller claim that the plaintiff, Raymond Miller, was negligent and/or impliedly assumed the risk of his own financial injury. The plaintiff was negligent if he failed to use that care, which a reasonably careful person in his circumstances would use in the same or similar circumstances.
Raymond Miller claims he was injured by relying on the negligent representations of Mr. Klopfer and Mr. Lovett. Where a person has the opportunity to investigate and when circumstances would cause a person of ordinary care to investigate and he fails to do so, his failure to investigate is negligence.
The plaintiff impliedly assumed the risk of his damages if he had knowledge of a condition, but voluntarily exposed himself to that risk. A plaintiff's conduct may be both negligence and implied assumption of the risk in some circumstances, and in other circumstances, the conduct may be one or the other, but not both; it depends on the facts as you find by the greater weight of the evidence. If you find from the greater weight of the evidence that he was negligent and/or impliedly assumed the risk of his damages, you must consider your written questions I will discuss with you in a little bit. Vol. IV T. at 476-477.
Assignment of Error III is denied.
IV.
Appellant claims the trial court erred in directing the verdict on breach of fiduciary duty. We disagree. Appellant conceded at oral argument that if Assignment of Error I was granted and the issue of comparative negligence was not granted, he would waive this argument. Further, in order to establish that there was a fiduciary duty owed to appellant, we find some testimony is necessary to establish such a duty. There was no expert testimony on the issue of fiduciary duty owed and therefore, the trial court was correct in so directing the verdict. Assignment of Error IV is denied.
V.
Appellant claims the trial court erred in granting partial summary judgment. We disagree. Summary judgment motions are to be resolved in light of the dictates of Civ.R. 56. Said rule has recently been reaffirmed by the Supreme Court of Ohio in State ex rel. Zimmerman v. Tompkins (1996), 75 Ohio St.3d 447, 448: Civ.R. 56(C) provides that before summary judgment may be granted, it must be determined that (1) no genuine issue as to any material fact remains to be litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the party against whom the motion for summary judgment is made. State ex rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511, 628 N.E.2d 1377, 1379, citing Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O3d 466, 472, 364 N.E.2d 267, 274.
As an appellate court reviewing summary judgment motions, we must stand in the shoes of the trial court and review summary judgments on the same standard and evidence as the trial court. Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St.3d 35. The trial court
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