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Hores v. Weaver11/10/2005
uch, it may only be preserved by an objection at trial. Collins v. Storer Communications, Inc. (1989), 65 Ohio App.3d 443, 446. A party who has been restricted from introducing evidence by means of a motion in limine must seek to introduce the evidence by proffer or otherwise at trial to preserve the issue on appeal. Id.
{ } At the hearing on Weaver's motions, Hores' counsel objected. At the end of the hearing, and subsequent to making his objections, Hores' attorney stated the following: " e proffered Mr. Brooks' testimony, and, basically, his testimony would be that he didn't see any lights on that truck, okay?" Therefore, we may address the issue of whether the trial court abused its discretion by overruling Hores' objection.
{ } Our review of the transcripts of the two criminal traffic proceedings indicates Brooks testified that he didn't see Weaver's truck prior to the moment of collision. We do not view this testimony as necessarily inconsistent with the proffered testimony that Brooks did not see any lights or flashers operating on Weaver's truck prior to the collision, since an absence of lights on the Weaver truck would undoubtedly impact the visibility of the vehicle from the front. Thus, the issue becomes whether Brooks' testimony is relevant and material.
{ } Weaver argues that Brooks' testimony relating to whether he saw any lights on the front of Weaver's truck is irrelevant to the issue of the visibility or discernability from the rear of the truck. We find this argument unconvincing.
{ } "The essential elements of a negligence claim are: (1) the defendant owed plaintiff a duty, (2) the defendant breached that duty, and (3) such breach was the proximate cause of plaintiff's injuries." Dawson v. McNeal, 10th Dist. No. 03AP-396, 2004-Ohio-107, (citation omitted).
{ } In the instant matter, Hores' theory of negligence is based upon a failure to maintain an assured clear distance. See Blair v. Goff-Kirby Co. (1976), 49 Ohio St.2d 5, 7 (holding that negligence based on assured clear distance is dependent on "whether there is evidence that the driver colliding with an object which (1) was ahead of him in his path of travel, (2) was stationary or moving in the same direction as the driver, (3) did not suddenly appear in the driver's path, and (4) was reasonably discernible.").
{ } Both parties concede that the central issue in the case is whether the back of Weaver's truck was reasonably discernible. With respect to collisions occurring at night, determination of this issue generally includes evidence which would tend to show whether a vehicle's lights were operating at the time of the collision. See Junge v. Brothers (1985), 16 Ohio St.3d 1, 4 (jury question exists with respect to discernability where accident happens at night, the roadway was unlighted, unreflective side of overturned truck was facing traffic and lights were off); Tomlinson v. Cincinnati (1983), 4 Ohio St.3d 66, 67, 69 (jury issue as to discernability when it was 9:30 at night in June, vehicle did not have lights on, roadway was poorly lit, and truck was equipped with reflectors.) Phillips v. Bowdle (Mar. 22, 1989), 3rd Dist. No. 1-8-21, 1989 Ohio App. LEXIS 1042, at *7 (jury question exists where there was conflicting evidence on whether the truck's lights were "flickering off and on" at the time of the nighttime accident); Venegoni v. Johnson, 10th Dist. No. 01AP-1284, 2002-Ohio-1988 (jury question existed as to whether appellee's vehicle was "reasonably discernible" where there was conflicting testimony whether appellee's lights were on).
{ } "Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequ
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