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Tucker v. Wal-Mart Stores12/9/1999
JUDGMENT AFFIRMED.
Meg and David Tucker, plaintiffs-appellants, appeal from the judgment of the Cuyahoga County Court of Common Pleas, General Division, Case No. CV-311184, in which a jury returned a verdict in favor of Wal-Mart Stores, Inc., defendant-appellee, on plaintiffs- appellants' personal injury and loss of consortium claims. Plaintiffs-appellants assign a single error for this court's review.
Plaintiffs-appellants' appeal is not well taken.
On January 31, 1995, Meg Tucker, plaintiff-appellant, was injured when a display of paint cans allegedly tipped over causing a can of paint to fall off the shelf onto Mrs. Tucker's right foot resulting in injuries to her foot and toes. Mrs. Tucker maintained that the display had shifted as she was reaching for one of the samples. She maintained further that her injuries were caused by Wal-Mart's negligence in allowing a dangerous condition to exist on the premises. Wal-Mart contended that Mrs. Tucker had been improperly standing upon one of display shelves at the time and that her own actions were responsible for the falling paint can. Approximately two months after the injury , Mrs. Tucker received a bone scan of both feet. The scan apparently revealed that Mrs. Tucker suffered from arthritic changes in her feet that were not caused by the alleged underlying injury.
On July 1, 1996, plaintiffs-appellants brought suit against Wal-Mart alleging that Wal-Mart's negligence had caused Mrs. Tucker's personal injuries. David Tucker also alleged an attendant loss of consortium claim. On September 5, 1996, Wal-Mart filed its answer in which it denied all substantive allegations contained in the complaint. During discovery, Wal-Mart received the results of Mrs. Tucker's bone scan.
The case was ultimately tried to a jury. During closing arguments, defense counsel referred to the bone scan report which indicated that Mrs. Tucker's injuries were not the result of a fracture, but rather arthritic changes present in both Mrs. Tucker's feet. Plaintiffs-appellants' counsel objected to the reference, but, after a sidebar discussion, the trial court permitted defense counsel to continue. At the conclusion of the trial, the jury returned a unanimous verdict in favor of Wal-Mart on both plaintiffs-appellants' causes of action.
On April 1, 1998, plaintiffs-appellants filed a timely notice of appeal from the judgment of the trial court.
Plaintiffs-appellants' sole assignment of error states:
I. APPELLANT MEG TUCKER WAS UNDULY PREJUDICED WHEN APPELLEE, DURING CLOSING ARGUMENTS, IMPROPERLY PRESENTED AND COMMENTED UPON A MEDICAL REPORT THAT HAD NOT BEEN INTRODUCED INTO EVIDENCE AT TRIAL.
Plaintiffs-appellants argue, through their sole assignment of error, that the bone scan report regarding Mrs. Tucker's feet was improperly commented upon before the jury during closing arguments. Specifically, plaintiffs-appellants maintain that the bone scan results were never introduced into evidence at any time during trial and, therefore, could not be referred to for any reason during closing arguments. It is plaintiffs-appellants' position that, by allowing defense counsel to comment upon the bone scan results, the trial court essentially permitted Wal-Mart to impeach Mrs. Tucker's testimony without affording plaintiffs-appellants the opportunity for cross-examination or the opportunity to call additional witnesses to testify regarding the issue. Plaintiffs- appellants claim defense counsel's tactics amount to prejudicial trial by ambush, which should not be condoned by this court.
As previously noted, that transcript currently before this court is only a partial
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