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Hunter-Martin v. Winchester Transp.3/15/1991
SHAW, Judge.
Plaintiff-appellant, Ruth Hunter-Martin, appeals the jury verdict of the Court of Common Pleas of Shelby County which found for defendants appellees, Winchester Transportation, Inc. and Anthony Powell.
The record shows that, on September 4, 1987, Albert Hunter ("Hunter") was traveling northbound in a 1981 Toyota Corolla Tercel on Interstate 75 at 5:00 a.m. at a speed of five to twenty miles per hour. Defendant Powell, while in the course and scope of his employment as a truck driver for Winchester Transportation, Inc., was also traveling northbound on Interstate 75 at the same time, but traveling at sixty to seventy-two miles per hour. Powell drove into the Hunter vehicle and Hunter died as a result.
Plaintiff was named the administratrix of the estate of Albert Hunter and, on December 23, 1987, instituted this wrongful death suit. The lawsuit was brought on behalf of the alleged minor child of Hunter and other next of kin. Prior to the trial, defendants filed a motion for summary judgment on all claims of the alleged minor child. The trial court granted defendants' motion and issued an order prohibiting plaintiff from referring to the alleged minor child at trial.
The case was tried in the Shelby County Court of Common Pleas on October 10 through 13, 1989. One of plaintiff's expert witnesses, Dr. Merrill Allen, was called to testify as to the visibility of the Hunter vehicle by Powell. Defendants had moved for a motion in limine as to this testimony in their pretrial statement, but the trial court did not rule on the motion prior to trial. However, at trial, defendants objected to the testimony and a conference was held off the record. The court granted in part and overruled in part defendants' motion. The trial court allowed Dr. Allen to testify, except as to the visibility of Hunter's vehicle.
The jury found in favor of defendants. The interrogatory, submitted and answered by the jury, stated that they found that Hunter was one hundred percent negligent and proximately caused plaintiff's injuries. Plaintiff moved for a judgment notwithstanding the verdict, which the trial court overruled.
Thereafter, plaintiff filed the instant appeal, asserting two assignments of error:
"I. The trial court committed error in granting [defendants'] motions for summary judgment and in limine thereby dismissing [plaintiff's] decedent's illegitimate minor child from the case.
"II. The trial court abused its discretion and committed error prejudicial to [plaintiff] by not allowing highway visibility expert Merrill Allen, M.D. (optometrist) to testify in regards to decedent's car's visibility on Interstate 75 as5:00 A.M. when impacted by [defendant Winchester's] 18 wheel flatbed tractor trailer truck."
As to the first assignment of error, it must be noted that the appeal from the granting of the summary judgment is not based on a genuine dispute as to a material fact, but that the judgment is inappropriate as a matter of law.
Plaintiff claims that a wrongful death claim can be maintained on behalf of Hunter's illegitimate child. In support of her contentions, plaintiff states that Ohio's descent and distribution statutes (R.C. Chapter 2105), which limit the ability of illegitimate children to inherit from their natural fathers, are altered by other chapters of the Revised Code, namely Ohio's Wrongful Death Act and Parentage Act (R.C. Chapters 2125 and 3111, respectively), and that Hunter's child has satisfied the requirements necessary to inherit from his natural father. Plaintiff further argues that the existence of the parent-child relationship had been dete
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