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Siders v. Reynoldsburg School Dist.12/13/1994
ules or regulations at issue could constitute negligence rather than negligence per se. We further find that the misleading nature of the instructions may have resulted in an improper verdict. See, e.g., Niermeyer v. Jenkins (Apr. 15, 1982), Franklin App. No. 81A-P-787, unreported, 1982 WL 410, (where act of defendant constituted negligence per se, it was not within province of jury to deliberate on defendant's conduct as being negligent or not, and thus misleading instruction was prejudicial). On remand, the trial court must determine which statutes constitute negligence per se, and which statutes, if violated, may constitute negligence, and instruct accordingly.
Plaintiffs' third assignment of error is sustained.
We will address the fourth and fifth assignment of error in inverse order.
Under the fifth assignment of error, plaintiffs assert that the trial court erred in failing to instruct the jury regarding damages for the inability to perform usual functions. At trial, plaintiffs' counsel object(d to the court's failure to give an instruction on inability to perform usual functions as set forth in the Ohio Supreme Court's decision in Fantozzi v. Sandusky Cement Prod. Co. (1992), 64 Ohio St.3d 601, 597 N.E.2d 474.
In Fantozzi, the court addressed the issue of damages for the "impairment of one's physical capacity to enjoy the amenities of life." Id. at 616, 597 N.E.2d at 485. Such damages entail compensation for the deprivation of one's ability to engage in activities and perform functions which were a part of, and provided pleasure to, an individual's life prior to his or her injury . Id. The Fantozzi court made clear that this type of damage is distinguishable from damages based uposrecognized categories of bodily pain and suffering. Damages for deprivation or impairment of life's usual activities "include loss of ability to play golf , dance, bowl, play musical instruments, engage in specific outdoor sports along with other activities." Id. at 617, 597 N.E.2d at 486. The court in Fantozzi held that:
"In the appropriate case, where there have been allegations of and evidence adduced on the plaintiff s inability to perform usual activities, occasioned by the injuries received, the trial court shall give these additional instructions to the jury:
"`If you find from the greater weight of the evidence that, as a proximate cause of the injuries sustained, the plaintiff has suffered a permanent disability which is evidenced by way of the inability to perform the usual activities of life such as the basic mechanical body movements of walking, climbing stairs, feeding oneself, driving a car, etc., or by way of the inability to perform the plaintiffs usual specific activities which had given pleasure to this particular plaintiff, you may consider, and make a separate award for, such damages.
"`Any amounts that you have determined will be awarded to the plaintiff for any element of damages shall not be considered again or added to any other element of damages. You shall be cautious in your consideration of the damages not to overlap or duplicate the amounts of your award which would result in double damages. For example, any amount of damages awarded to the plaintiff for pain and suffering must not be awarded again as an element of damages for the plaintiff's inability to perform usual activities. In like manner, any amount of damages awarded to the plaintiff for the inability to perform usual activities must not be considered again as an element of damages awarded for the plaintiff's pain and suffering, or any other element of damages.'" Id., 64 Ohio St.3d at 618, 597 N.E.2d at 486-487.
In the present case, there was e
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