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Van Scyoc v. Huba11/30/2005
an objection to the instruction on the trial record," State v. Powers (1995), 10 Ohio App.3d 696, 699, a formal objection is not required to satisfy the standards of Civ.R. 51(A).
{ } We have recently held that "once a party makes a position sufficiently clear such that the court has an opportunity to correct a mistake or defect in the instruction, then the rationale for a formal objection as required by Civ.R. 51(A) is no longer present." Callahan at . See also State v. Wolons (1989), 44 Ohio St.3d 64, 67 (adopting the Presley rationale in criminal cases); Presley v. Norwood (1973), 36 Ohio St.2d 29, 33 (holding that when a party unsuccessfully requests inclusion of the law into a jury charge, the party does not waive its objection to the court's charge by failing to formally object). Furthermore, we have stated that "an appellant fully informs the court of its position when the appellant formally requests an instruction to the contrary, and argues the issue to the trial court." Callahan at , citing Krischbaum v. Dillon (1991), 58 Ohio. St.3d 58, 61.
{ } It is evident from the record that Appellant formally requested an instruction contrary to the charge submitted to the jury. On February 8, 2005, Appellant filed her proposed jury instructions, including the proposed instruction on dual causation. Additionally, Appellant brought the issue to the attention of the trial court, argued her position and clearly stated that the instruction should be included. Based on the foregoing, we find that Appellant did not waive her objection to the trial court's refusal to give the proposed instructions when she did not formally object to the given charge. See Krischbaum, 58 Ohio St.3d at 61.
{ } While we acknowledge that Appellant's conduct was equivalent to an objection under Krischbaum and Callahan, we take issue with Appellant's failure to renew her objection to the jury charge when specifically offered the opportunity by the trial court. It is axiomatic that prudence and good sense mandate renewal of an objection when given the opportunity by the trial court, and this Court is unaware of a reason why the objection at issue was not renewed. Accordingly, we find that Appellant effectively withdrew her objection to the submitted jury charge when she declined to renew it when specifically provided an opportunity to do so.
{ } As such, Appellant's withdrawal of her objection has the effect of waiving all but plain error on appeal. See Patio Enclosures, at . Because Appellant did not argue plain error on this issue, her argument that the trial court erred in refusing to give the proposed instruction on dual causation is not well taken. Id. See also Matis v. Matis, 9th Dist. No. 04CA0025-M, 2005-Ohio-72, at 18.
{ } Assuming arguendo, that Appellant's failure to renew did not constitute a withdrawal of the objection, thus effectively preserving her objection for appeal, we find that the trial court did not abuse its discretion when it refused to include the proffered instruction in its jury charge.
{ } Appellant's proposed jury instruction read as follows: "There may be more than one proximate cause. When the actions of one party combine with the negligence of another to produce an injury, the negligence of both is a cause. The law does not require that the negligence of each occur at the same time, in the same manner, or even in the same place, nor that there be a common purpose or action.
The fact that some other cause combined with the negligence of a defendant to produce an injury does not relieve Defendant from liability." (Emphasis added).
{ } We note that Appellant's proposed jury instruction parallels O.J.I. 11.10(3)
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