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Van Scyoc v. Huba11/30/2005
iting Irvine v. Akron Beacon Journal, 147 Ohio App.3d 428, 2002-Ohio-2204, at .
{ } Appellant has argued that the trial court's refusal to give the instruction on "dual causation" deprived the jury of any guidance on what to do if it found that both Appellant's workplace injury and Appellee's negligence proximately caused Appellant's injuries. Appellant has also argued that the trial court's refusal to instruct the jury on dual causation allowed Appellee's counsel to "unfairly" and "incorrectly" suggest to the jury that Appellant could only recover if her injuries were solely caused by the negligent conduct of the Appellee.
{ } Appellee has countered that Appellant waived appellate review on the matter of jury instructions because she failed to object to the omission of jury instructions prior to the jury retiring to deliberate and because she did not propose any additions, deletions or objections to the charge submitted to the jury. Furthermore, Appellee has argued that Appellant failed to test the verdict with interrogatories and therefore, it is impossible to conclude that the basis of jury's verdict was improper.
{ } Rule 51(A) governs appellate review of jury instructions and provides in pertinent part:
"On appeal, a party may not assign as error the giving 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. Opportunity shall be given to make the objection out of the hearing of the jury." Civ.R. 51(A).
{ } This Court has consistently adhered to the tenets of Civ.R. 51(A). See, e.g., Callahan v. Akron Gen. Med. Ctr., 9th Dist. No. 22387, 2005-Ohio-5103;Patio Enclosures, Inc. v. Four Seasons Marketing Corp., 9th Dist. No. 22458, 2005-Ohio-4933;Fisher v. Lorain, 9th Dist. No.02CA008032, 2003-Ohio-526.
{ } Furthermore, the Ohio Supreme Court has held that "' hen a party fails to object to the giving of or failure to give a jury instruction before the jury retires to consider a verdict, the party may not assign as error the giving of or failure to give such instruction.'" Fisher at , quoting Schade v. Carnegie Body Co. (1982), 70 Ohio St.2d 207, paragraph one of the syllabus.
{ } In the present case, Appellant did not formally object to the trial court's omission of her proposed jury instruction. The record reflects that prior to closing arguments, the trial court provided both parties with a draft of the jury instructions and queried whether the parties had anything further. Appellant replied in the affirmative and contended that the court was required to include an instruction advising the jury that it is permissible to have more than one proximate cause. Whereupon a discourse was had between Appellant's counsel and the trial court regarding the appropriateness of the instruction. The trial court refused to include the proposed instruction on the basis that the prior incident to which Appellant referred was a worker 's compensation injury, and therefore not necessarily a negligent cause.
{ } The record further reflects that after the jury had been charged and dismissed to deliberate, the trial court asked the parties if they had any additions, corrections or alterations to the submitted jury charge, to which Appellant had none. The trial court then inquired whether the parties wanted to renew any objections. Appellant declined to renew her objections.
{ } Appellee has argued that the above-mentioned exchange between the trial court and Appellant prior to the jury charge did not constitute an objection. This Court disagrees. While a party is required to "cite
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