[Cite as Warkoczeski v. Speedway, 2010-Ohio-2518.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              AUGLAIZE COUNTY




BETTY J. WARKOCZESKI,

        PLAINTIFF-APPELLANT,                                  CASE NO. 2-09-26

        v.

SPEEDWAY SUPERAMERICA, LLC,                                   OPINION

        DEFENDANT-APPELLEE.




                Appeal from Auglaize County Common Pleas Court
                          Trial Court No. 2008 CV 0323

                                    Judgment Affirmed

                             Date of Decision:       June 7, 2010




APPEARANCES:

        Joseph W. O’Neil and Jennifer N. Brown for Appellant

        Anthony J. Calamunci and Amy L. Butler for Appellee
Case No. 2-09-26


SHAW, J.

           {¶1} Plaintiff-appellant Betty J. Warkoczeski (“Betty”) appeals the

September 24, 2009 Judgment Entry of the Auglaize County Court of Common

Pleas rendered on the September 4, 2009 jury verdict in favor of defendant-

appellee Speedway (“Speedway”).

           {¶2} The case arises out of the following set of facts. On October 14,

2007, Betty was travelling with her daughter and son-in-law, Julie and Marv Scott,

on Interstate I-75. The three were on their way home from visiting with Betty’s

granddaughter, Meredith Scott, in Dayton.                        At approximately11:08 a.m., they

made a stop at the Speedway1 in Cridersville, Ohio. Marv parked at one of the gas

pumps and exited the car to use the facilities in the Speedway convenience store.

A few minutes later, Julie and Betty followed behind also intending to use the

facilities and purchase some refreshments for the remainder of the trip.

           {¶3} As they approached the entrance to the convenience store from the

parked car, Julie walked on Betty’s right side while holding her right hand.

Located in front of the entrance to the store, was a sidewalk with a three inch curb.

This sidewalk extended along the entire front side of the building. To the left of

the front entrance was a slight ramp located at the end of the sidewalk which

created easy access to the store for wheelchairs and deliveries. Located to the



1
    Speedway is in the business of selling fuel, food, drinks and other items to the general public.


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Case No. 2-09-26


right of the ramp, was a drain which diverted the water runoff from the gutters into

the main parking lot. The drain was covered by a metal plate designed to sit flush

with the surrounding sidewalk (collectively referred to by the parties as “the

grate”). It is undisputed by the parties that the metal grate covering the drain was

deteriorated and displayed several areas of rust and corrosion.

       {¶4} As they approached the curb at the front of the store, Julie released

Betty’s right hand and moved ahead to open the store’s door for Betty. Betty

claims that as she advanced toward to the door, she stepped up onto the grate

which unexpectedly moved from under her feet, and caused her to fall. Betty

stated that she fell on the concrete and landed on the left side of her body. As a

result of the fall, Betty broke her wrist and suffered injuries to her left hip and leg.

       {¶5} Betty was taken by an ambulance to a local hospital shortly

thereafter. There were no eyewitnesses to the cause of Betty’s fall. Julie testified

that she did not observe the origin of Betty’s fall, and only caught sight of Betty in

mid-air as she descended onto the cement. Moreover, the location of Betty’s fall

occurred outside of the line of sight of Speedway’s surveillance cameras. As a

result, the only evidence of what occurred is Betty’s account of her fall.

       {¶6} On September 16, 2008, Betty filed this lawsuit against Speedway

alleging premises liability negligence. Specifically, Betty alleged that Speedway

owed her a duty as a business invitee; that Speedway breached this duty by



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permitting a dangerous and hazardous condition to exist—i.e. the grate; that

Speedway knew or should have known that the condition of the grate would cause

injury to Betty and other business invitees; that Speedway failed to warn Betty and

other business invitees of the dangerous and hazardous condition of the grate and;

that these negligent acts were the proximate cause of Betty’s injuries. On October

16, 2008, Speedway filed its answer denying inter alia any negligence on its part,

and stating that it had no duty to warn Betty of an open and obvious hazard.

       {¶7} Various pleadings and pre-trial motions were filed.              Several

witnesses, including Betty, were deposed. In her deposition, Betty stated how she

remembered the incident occurred.       Specifically, Betty testified that she first

stepped with her right foot up onto the concrete sidewalk on top of the curb. Then

she next stepped with her left foot directly onto the grate. Betty testified that she

immediately fell to her left upon taking her second step with her left foot.

However, Betty also testified that the fall happened so fast and she could not recall

feeling the grate move or seeing the grate move when she stepped on it. Further,

when asked by Speedway’s counsel if she saw the grate before stepping on to it,

Betty replied, “I assume I did, yes.” (Depo. p.53).

       {¶8} Approximately three weeks after she was deposed, Betty submitted

an “errata sheet” to her deposition. In the errata sheet, Betty claimed she was able

to describe the sequence of her steps immediately prior to her fall with greater



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clarity. Betty now stated that as she approached the curb at the front of the store,

she actually made her first step with her left foot onto the grate and then

subsequently fell. Betty further described her fall “like there was no sidewalk

where there should have been sidewalk.” (Errata Sheet p.1).

       {¶9} In an attempt to understand the mechanics of Betty’s fall, each party

hired an expert to conduct an analysis of the scene and to reconstruct the

conditions of Betty’s fall.   Betty’s expert, Michael Hayslip, a civil engineer,

attorney, and a Certified Safety Professional, conducted his investigation of the

scene on March 16, 2009. And Speedway’s expert, Larry Goodwin, a mechanical

engineer experienced in accident reconstruction and analyzing structural failures

conducted his investigation of the scene on May 8, 2009. Because there were no

eyewitnesses to Betty’s fall, both experts relied on Betty’s account of her fall and

their respective investigations of the scene to determine whether the grate was the

proximate cause of her injuries.

       {¶10} On August 4, 2009 Betty filed a motion to exclude the testimony of

Speedway’s expert, Larry Goodwin. On August 14, 2009, Speedway filed several

motions including a motion to exclude the testimony of Betty’s expert, Michael

Hayslip. Speedway also filed a motion in limine to preclude the introduction of

any evidence of subsequent remedial measures.




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       {¶11} On August 21, 2009, the trial court held an evidentiary hearing on

the pending matters wherein counsel for both parties argued the merits of their

motions. On September 1, 2009, the trial court ruled on the motions via its

Judgment Entry. The court granted Speedway’s motion to preclude any evidence

of subsequent remedial measures and denied both parties’ motions to exclude the

other’s expert testimony. The case proceeded to trial on the same day.

       {¶12} In support of her case, Betty presented the testimony of several

witnesses including that of Julie, Marv, multiple Speedway employees familiar

with the condition of the grate at the time and/or prior to the incident, and expert

Hayslip. Betty provided similar testimony at trial to that given in her deposition.

Betty maintained that her second account submitted in the errata sheet—that she

made her first step with her left foot onto the grate—was the correct sequence of

her footing. Betty also testified that she did not look down to see her foot step

onto the grate and that she did not have any memory as to how she fell.

Nevertheless, she maintained throughout her testimony that the grate was the

cause of her fall.

       {¶13} Betty’s expert, Hayslip, also testified and concluded that the grate

was unsafe and had the ability to move unexpectedly when stepped upon.

Moreover, as a safety expert, much of Hayslip’s testimony focused on his

assessment that Speedway breached its duty to Betty and other business invitees



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by failing to use ordinary care and failing to give adequate warning of the grate’s

dangerous condition. In assessing whether the grate was the proximate cause of

Betty’s injuries, Hayslip opined that he believed Betty’s account of how she fell in

her deposition was accurate and “plausible” given the testimony of other

Speedway employees who said they experienced the grate move when they

walked across it.

       {¶14} As the primary portion of its defense, Speedway presented the

testimony of expert Goodwin. Goodwin’s testimony focused on proximate cause.

Goodwin testified that based on his analysis of the scene, he concluded that it was

improbable that Betty fell the way she described in both her deposition and errata

sheet. After reviewing the surveillance video recorded at the time of the incident

and his analysis at the scene, Goodwin concluded that Betty was positioned further

to the left of the grate than she stated in her deposition. Goodwin concluded that

Betty’s location immediately before she fell was in a zone that encompassed an

area between the top of the ramp and the grate.

       {¶15} Based on this conclusion, Goodwin further identified two scenarios

which he concluded were more consistent with both of Betty’s accounts.

Goodwin found Betty’s first description of her fall—that she first stepped with her

right foot onto the concrete and then stepped up with her left foot onto the grate—

was improbable given where Goodwin concluded Betty to be positioned. Instead,



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Goodwin stated that Betty’s original description was more consistent with Betty

stepping with her right foot onto the grate. However, Goodwin found this scenario

was unlikely because it would have resulted in Betty falling to her right and her

injuries were clearly consistent with falling to her left.

       {¶16} Goodwin concluded a second scenario was more likely. Based on

his findings which placed Betty to the left of the grate, Goodwin concluded that

Betty’s account that she made her first step with her left foot was consistent with

her stepping up onto the ramp in the sidewalk which was located directly to the

left of the grate. Further, Goodwin testified that Betty’s recollection that she felt

nothing at the moment of her fall was more consistent with the sensation a person

would experience as she stepped up onto an elevated surface and expected that

surface to be higher than it actually was thus causing a loss of balance. As a

result, Goodwin testified to a reasonable degree of scientific certainty that Betty’s

fall did not occur as she described in either her deposition or errata sheet due to his

opinion as to her placement relative to the grate at the time of her fall.

       {¶17} At the close of all the evidence, the trial court read to the jury the

instructions, interrogatories and the verdict forms.         The jury then retired to

deliberate and returned with a verdict later that day. The jury was given a number

of interrogatories, but only made a decision as to the first one. Interrogatory No.1

asked the jury, in its entirety, “[w]as Defendant Speedway SuperaAmerica, LLC,



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negligent?” In response, the jury circled, “NO” and seven out of the eight jurors

signed the interrogatory. The interrogatory then instructed the jury to do the

following, “[i]f your answer to this Interrogatory is “NO,” please stop and enter

judgment in favor of the Defendant.” The same seven jurors then signed the

verdict form finding in favor of Speedway. Betty now appeals to this Court,

asserting four assignments of error.

                  ASSIGNMENT OF ERROR NO. I
       THE TRIAL COURT COMMITTED PREJUDICIAL ERROR
       BY EXCLUDING EVIDENCE BASED UPON [SPEEDWAY’S]
       CLAIM OF SUBSEQUENT REMEDIAL MEASURES

                  ASSIGNMENT OF ERROR NO. II
       THE TRIAL COURT COMMITTED PREJUDICIAL ERROR
       WHEN THE COURT ALLOWED LARRY GOODWIN TO
       TESTIFY, BECAUSE HIS TESTIMONY LACKED BOTH
       FACTUAL AND A SCIENTIFIC BASIS TO TESTIFY,
       RENDERING GOODWIN’S TESTIMONY UNRELIABLE
       AND NOT HELPFUL TO THE JURY, AND GOODWIN
       ADDED ADDITIONAL OPINIONS AT TRIAL

                 ASSIGNMENT OF ERROR NO. III
       THE TRIAL COURT COMMITTED PREJUDICIAL ERROR
       WHEN THE COURT INSTRUCTED THE JURY AS TO
       OPEN AND OBVIOUS DANGER; PLACED THE BURDEN
       UPON [BETTY] TO DISPROVE THE HAZARD WAS OPEN
       AND OBVIOUS; AND EXCLUDED A JURY INSTRUCTION
       AS TO CONSTRUCTIVE NOTICE OF THE HAZARDOUS
       GRATE

                 ASSIGNMENT OF ERROR NO. IV
       THE TRIAL COURT COMMITTED PREJUDICIAL ERROR
       WHEN THE TRIAL COURT ALLOWED SPEEDWAY TO
       INTRODUCE EVIDENCE OF BETTY’S PROPENSITY TO
       FALL


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       {¶18} Initially, we note that for ease of discussion, we elect to address

Betty’s assignments of error out of order.

                         The Second Assignment of Error

       {¶19} In her second assignment of error, Betty argues that the trial court

erred in allowing Speedway’s witness, Larry Goodwin, to testify as an expert. As

a basis for this assertion, Betty maintains that Goodwin’s testimony lacked both a

scientific and factual basis rendering his testimony unreliable and therefore, not

helpful to the jury.

       {¶20} Trial courts have broad discretion in determining the admissibility or

exclusion of expert testimony. Terry v. Caputo, 115 Ohio St.3d 351, 356, 2007-

Ohio-5023, ¶16, 875 N.E.2d 72. Therefore, an appellate court reviews a trial

court’s decision on the admissibility of such evidence for an abuse of discretion.

Id.     “Abuse of discretion suggests unreasonableness, arbitrariness, or

unconscionability. Without those elements, it is not the role of this court to

substitute its judgment for that of the trial court.” Valentine v. Conrad, 110 Ohio

St.3d 42, 43, 2006-Ohio-3561, ¶9, 850 N.E.2d 683 citing Calderon v. Sharkey

(1982), 70 Ohio St.2d 218, 222, 436 N.E.2d 1008.

       {¶21} The trial court plays the role of a gatekeeper when determining the

admissibility of an expert’s testimony. Daubert v. Merrill Pharmaceuticals, Inc.,

(1993) 509 U.S. 594, 597. Thus, an expert’s testimony must meet the criteria of



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Evid.R. 702 which provides that a witness may testify as an expert if all of the

following apply:

      (A) The witness’ testimony either relates to matters beyond the
      knowledge or experience possessed by lay persons or dispels a
      misconception common among lay persons;

      (B) The witness is qualified as an expert by specialized
      knowledge, skill, experience, training, or education regarding
      the subject matter of the testimony;

      (C) The witness’ testimony is based on reliable scientific,
      technical, or other specialized information. To the extent that
      the testimony reports the result of a procedure, test, or
      experiment, the testimony is reliable only if all of the following
      apply:

      (1) The theory upon which the procedure, test, or experiment is
      based is objectively verifiable or is validly derived from widely
      accepted knowledge, facts, or principles;

      (2) The design of the procedure, test, or experiment reliably
      implements the theory;

      (3) The particular procedure, test, or experiment was
      conducted in a way that will yield an accurate result.

Evid.R. 702; see also State v. Rowe, 3rd Dist. Nos. 14-05-31, 14-05-46, 2006-

Ohio-1883, citing State v. Hartman (2001), 93 Ohio St.3d 274, 283-84, 754

N.E.2d 1150. Further, as an additional consideration of admissibility, the expert’s

testimony must assist the trier of fact in determining a fact issue or understanding

the evidence. Miller v. Bike Athletic Co., 80 Ohio St.3d 607, 611, 1998-Ohio-187,

687 N.E.2d 735.



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          {¶22} In the present case, the parties do not dispute that Goodwin is a

qualified expert who testified about a subject beyond the knowledge of lay

persons.2 See Evid.R. 702(A) and (B). However, Betty contends that Goodwin’s

opinion is not reliable and therefore does not satisfy Evid.R. 702(C).                                  In

determining whether Goodwin’s opinion is reliable, our inquiry focuses on

whether the principles and methods Goodwin employed to reach his opinion are

reliable, and not on whether his conclusions are correct. See Miller, 80 Ohio St.3d

at 613.

          {¶23} Speedway asked Goodwin to evaluate the site conditions and

reconstruct the incident causing Betty’s injuries. As the primary focus of his

investigation, Goodwin analyzed the scene according to Betty’s account of her fall

in both her deposition and errata sheet. Goodwin also used the video surveillance

from the date of incident which displayed the trajectory that Betty and Julie took

from the parked car at the gas pumps to the front of the convenience store.

However, as noted above, the location of the grate and the area where Betty fell

were outside of the line of sight of Speedway’s surveillance cameras.

          {¶24} In order to recreate the part of Betty’s path not captured by

Speedway’s cameras, Goodwin took measurements of the grate and the


2
  Goodwin is a professional engineer who has conducted accident reconstructions for the past fifteen years.
Goodwin holds professional registration as an engineer in sixteen states in addition to Ohio and has
testified as an expert in those states. Additionally, Goodwin has participated as an expert in nearly 150
cases similar to the case sub judice.


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surrounding area. Goodwin used the video surveillance from the incident as a

starting point. He then re-created the scene from those camera angles so that he

could assess Betty’s entire path. Goodwin then compared the camera angles from

the surveillance camera on the date of Betty’s fall and the ones he used on the date

of his investigation. Based on his reconstruction of Betty’s entire path, Goodwin

concluded that Betty’s position at the time of her fall was located somewhere

between two end points—the leftmost point being the top of the ramp and the

rightmost point being the right edge of the grate.         Accordingly, Goodwin

concluded to a reasonable degree of scientific certainty that it was highly

improbable that Betty stepped on the grate with her left foot, as she had described

in her testimony.

       {¶25} Betty raises two issues with Goodwin’s investigation to contend that

principles and methods he used are unreliable and should have been excluded.

       {¶26} First, Betty maintains that Goodwin’s use of camera angles to

recreate the missing link of Betty’s trajectory to the store is flawed. Betty argues

that Goodwin’s methodology lacked a foundation because Goodwin failed to

verify that the camera angles on the date of his investigation were similar to the

ones on the date of Betty’s fall.

       {¶27} However, at trial Goodwin testified to a reasonable degree of

scientific certainty that the camera angles on the date of his investigation were



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similar to the camera angles from the surveillance video recorded on the date of

Betty’s fall. Moreover, Hayslip—Betty’s own expert—stated numerous times

throughout his testimony that in formulating his own conclusions he relied, in part,

on the measurements and conclusions contained in Goodwin’s report. Further,

Hayslip specifically stated that he relied on the same camera angles used in

Goodwin’s investigation to conclude that Betty stepped in the zone that included

the grate. Hayslip further stated that he shared the same opinion as Goodwin

regarding Betty’s position relative to the grate immediately prior to her fall.

Indeed, the only point on which the two experts appear to diverge in their

respective testimony regarding the proximate cause of Betty’s injuries, is with

regard to their conclusion as to whether Betty’s fall was caused by her stepping up

directly onto the grate as she testified.

       {¶28} Second, Betty also maintains that Goodwin’s opinion is unreliable

because his investigation did not include an extensive analysis focusing on the

stability of the grate.    Specifically, Betty contends that Goodwin’s failure to

manipulate the grate and to perform load calculations to assess how much weight

the grate can withhold before becoming unstable rendered his opinion unreliable

and unhelpful to the jury. However, Betty does not provide any authority that this

type of analysis is required in order to satisfy the reliability requirement under

Evid.R. 702(C) under these circumstances. Moreover, Betty’s counsel addressed



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this specific issue at trial when he cross-examined Goodwin and inquired why

Goodwin did not use this type of analysis in his investigation. In response to this

questioning, Goodwin simply stated that he did not think that such an analysis was

relevant to the reconstruction of this incident.

       {¶29} Finally, Betty complains that Goodwin made additional conclusions

in his testimony at trial that were not included in his previous deposition.

However, after reviewing Goodwin’s investigation report and his subsequent

deposition, we find that the conclusions Goodwin gave at trial were consistent

with those given in his deposition. As such, we find Betty’s contention on this

point is without merit.

       {¶30} Based on the record before us, we cannot find that the trial court

erred in concluding that principles and methods Goodwin employed to reach his

opinion were reliable. Moreover, we are reminded that “the jury, as the trier of

fact, is vested with the power to judge the credibility of witnesses and to determine

the weight to be afforded to the evidence presented.” Croft v. State Farm Mutual

Auto. Ins. Co., 3d Dist. No. 1-01-72, 2002-Ohio-113, citing Swan v. Skeen (1974),

40 Ohio App.2d 307, 308-309, 319 N.E.2d 221. As such, we find no error in the

trial court’s determination on the admissibility of Goodwin expert testimony.

Betty’s second assignment of error is therefore overruled.




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                          The First Assignment of Error

       {¶31} In her first assignment of error, Betty contends that the trial court

committed reversible error when it granted Speedway’s motion to preclude any

evidence of subsequent remedial measures. Specifically, Betty argues that the rule

barring this type of evidence is inapplicable to the present case because Speedway

did not take any subsequent remedial measures until 21 months after Betty’s fall.

Alternatively, Betty argues that the proffered evidence does not violate the rule

because it is offered for other purposes which do not require exclusion.

       {¶32} A trial court is vested with broad discretion in determining the

admissibility of evidence in any particular case, so long as such discretion is

exercised in line with the rules of procedure and evidence. Rigby v. Lake Cty.

(1991), 58 Ohio St.3d 269, 271, 569 N.E.2d 1056. Therefore, an appellate court

which reviews the trial court’s admission or exclusion of evidence must limit its

review to whether the lower court abused its discretion.        Id.   An “abuse of

discretion” implies more than an error of law and judgment, but that the trial

court’s attitude is unreasonable, arbitrary or unconscionable. Holman v. Licking

Cty (1995), 107 Ohio App.3d 106, 112, 667 N.E.2d 1239.

       {¶33} Rule 407 of the Ohio Rules of Evidence governs the admissibility of

subsequent remedial measures and provides, in its entirety:

       When, after an injury or harm allegedly caused by an event,
       measures are taken which, if taken previously, would have


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       made the injury or harm less likely to occur, evidence of the
       subsequent measures is not admissible to prove negligence or
       culpable conduct in connection with the event. This rule does
       not require the exclusion of evidence of subsequent measures
       when offered for another purpose, such as proving ownership,
       control, or feasibility of precautionary measures, if
       controverted, or impeachment.

One of the rationales supporting this rule is that remedial measures have little or

no probative value in establishing negligence because the injury may have been

caused by reason of mere accident or through a plaintiff’s contributory negligence.

McFarland v. Bruno Mach. Corp. (1994), 68 Ohio St.3d 305, 308, 626 N.E.2d

659. However, “if [offered for] a purpose other than to show negligence or

culpability then evidence of subsequent remedial measures, if relevant, should be

admitted.” Worrell v. Norfolk & Western Railway Co. (1994), 94 Ohio App.3d

133, 137, 640 N.E.2d 531 citing McFarland, 68 Ohio St.3d at 307-308.

      {¶34} Initially, we acknowledge that Speedway took no action to modify

the grate until 21 months after Betty’s fall. In fact, Speedway’s maintenance

department assessed the grate immediately after the incident and determined the

grate to be stable and in need of no repair. Specifically at issue in Speedway’s

motion to preclude evidence of subsequent remedial measures was the proffered

testimony of Amber Tomsett and Gary Mohre.

      {¶35} After reviewing the record before us, we agree with Betty that

Evid.R. 407 is inapplicable under these circumstances to preclude the proffered



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testimony. The testimony elicited from Tomsett and Mohre does not reference

any subsequent remedial measure taken by Speedway. Accordingly, we conclude

that it was error for the trial court to have based its ruling to exclude this evidence

upon the remedial measures provisions of Evid.R. 407.

        {¶36} However, upon reviewing Tomsett and Mohre’s proffered testimony,

we conclude that the trial court’s decision to exclude this evidence was not an

abuse of discretion because this testimony was not relevant to Betty’s case and

was, at best, cumulative to the other testimony offered by Betty at trial. See

Evid.R. 401.3

        {¶37} At all times during the trial, the relevant inquiry focused on the

condition of the grate on October 14, 2007—at the time of Betty’s fall. Both

Tomsett and Mohre only had personal knowledge of the grate’s condition after the

incident. Amber Tomsett was an employee at the Cridersville Speedway from

December 2007—two months after Betty’s fall—to May 2008. Gary Mohre is a

private investigator employed by Betty’s counsel to assess the scene on June 23,

2008, and offer a lay person’s opinion about the condition of the grate on that date.

        {¶38} Betty maintains that Tomsett and Mohre’s testimony would prove

that any danger presented by the grate was not open and obvious because both



3
 Evid.R. 401 states, in its entirety: “Relevant evidence” means evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence.


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Case No. 2-09-26


witnesses would offer evidence that the grate moved unexpectedly when they

walked across it. However, at trial Jeanne-Anne Adams, a former Speedway

employee of five years, from 2002 to May 2007, testified that she personally

experienced the grate move unexpectedly from underneath her feet while

traversing it. Adams further stated that she had tripped over the grate three to five

times during the tenure of her employment and that the grate would tilt out of the

concrete casing if too much weight was unevenly distributed to one side.

       {¶39} Alternatively, Betty also argues that Tomsett and Mohre’s testimony

was essential to impeach the testimony of Kimberly Hughes, the Cridersville

Speedway Manager at the time of Betty’s fall. Hughes testified that she did not

know of any problems with the grate and had received no complaints concerning

the unsafe condition of the grate. Additionally, Betty maintains that the proffered

testimony of Tomsett and Mohre was essential to impeach Goodwin’s testimony

that the grate was stable.

       {¶40} However, we are not persuaded by Betty’s assertions. Nearly every

witness who testified on behalf of Betty at trial made statements which impeached

both Hughes and Goodwin on these points. This testimony included that of former

Speedway employees who testified that they personally reported multiple

customer complaints about the grate to Hughes prior to Betty’s fall as well as




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testimony from those employees and Betty’s expert who contradicted Goodwin’s

testimony by stating that they believed that the grate was unsafe and unstable.

          {¶41} Furthermore, at the hearing on Speedway’s motion to preclude this

evidence, the trial court stated its doubts on the record about the relevancy of this

evidence to Betty’s case. Specifically, the trial court expressed its “concern” with

the potential prejudice of this evidence by “leaving the Jury with a bad impression

that these people (Speedway) just don’t care.” (Motion Hrg, August 21, 2009, at

132). Thus, even assuming arguendo that the proffered testimony was relevant to

show that Speedway had notice of any safety issues with the grate, it was not an

abuse of discretion for the trial court to conclude that the probative value of the

evidence was substantially outweighed by the danger of undue prejudice or of

confusion of the issues. See Evid.R. 403(A) (providing that evidence, although

relevant, “is not admissible if its probative value is substantially outweighed by

the danger of unfair prejudice, of confusion of the issues, or of misleading the

jury”).

          {¶42} In sum, although we conclude that the trial court was in error to rely

upon the subsequent remedial measures provisions of Evid.R. 407 to exclude this

evidence, we find that the error was not prejudicial to Betty because the proffered

testimony was not relevant to demonstrate to the jury the condition of the grate at

the time of Betty’s fall. In the alternative, even if the proffered testimony had been



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relevant, it was, at best, cumulative given the other testimony elicited at trial and

thus, its probative value was substantially outweighed by its prejudicial effect.

Further, we note that “[u]nless an error in the exclusion of evidence has affected a

party’s substantial rights, such error will be deemed harmless.” Kelley v. Carins &

Bros., Inc. (1993), 89 Ohio App.3d 598, 611, 626 N.E.2d 986. Accordingly, we

cannot find that the trial court’s exclusion of Tomsett’s and Mohre’s testimony

affected Betty’s substantial rights and as such we find any error in the trial court’s

rationale for excluding such evidence to be harmless. Therefore, Betty’s first

assignment of error is overruled.

                          The Fourth Assignment of Error

       {¶43} In her fourth assignment of error, Betty asserts that the trial court

erred when it allowed Speedway to introduce evidence demonstrating her

“propensity to fall.”   Specifically, Betty claims that the trial court permitted

Speedway to improperly introduce evidence of an episode in 2002—five years

prior to the incident at issue—wherein Betty fell at her daughter’s house and broke

her right hip. Betty argues that Speedway repeatedly questioned her and other

witnesses about her 2002 injury in a manner which insinuated that Betty had

tripped, causing her to fall.       In addition, Betty maintains that the trial court

improperly allowed Speedway to question Betty and Julie about the two holding




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Case No. 2-09-26


hands immediately prior to Betty’s fall and inferring that it was common practice

for others to give Betty additional assistance when walking.

       {¶44} At a pre-trial hearing, the parties argued the admissibility of the

evidence related to Betty’s fall in 2002. Betty’s counsel intended to introduce the

deposition of Dr. Hartman, the physician who performed Betty’s 2002 hip surgery

wherein he placed a prosthesis in Betty’s right hip as a result of the injuries she

sustained from the fall at her daughter’s home. Dr. Hartman also treated Betty for

the injuries she sustained after the 2007 fall at Speedway.         The trial court

cautioned Betty’s counsel that Speedway would be permitted to discuss any issue

related to the 2002 incident that Betty’s counsel placed at issue on direct

examination in the deposition.

       {¶45} In deposing Dr. Hartman, Betty’s counsel asked Dr. Hartman

whether the incident at Speedway had an aggravating effect on Betty’s right hip—

specifically whether this latest fall had reduced the projected longevity of the

prosthesis placed in Betty’s right hip in 2002. In response, Dr. Hartman testified

to several casual factors relating to an increased amount of problems that Betty

suffered with her right hip prosthesis as a result of her fall in this case. Further,

Betty’s counsel asked the jury for damages based on the aggravation of her prior

injury that Betty’s fall at Speedway caused to her right hip. Thus, Betty’s 2002

fall was placed at issue by Betty’s counsel and therefore, this evidence was not



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solely elicited by Speedway to infer that Betty had a propensity to fall. Thus, we

cannot find that the trial court abused its discretion by allowing Speedway to

inquire at trial about Betty’s 2002 fall.

       {¶46} Betty also maintains that the trial court improperly permitted

Speedway to question Betty and other witnesses about Julie and Betty holding

hands immediately prior to Betty’s fall. Betty argues that on cross-examination,

Speedway repeatedly used the hand holding as an attempt to depict Betty as an old

lady in need of support who also possessed a propensity to fall. However, when

questioned on this issue, Betty testified to the contrary by stating that she and Julie

hold hands as a sign of affection. This sentiment was corroborated by other

witnesses who testified that prior to her fall at Speedway, Betty was an extremely

active and able-bodied 80 year old and that anytime a family member held her

hand it was purely out of affection rather than support.

       {¶47} In reviewing the record, it is clear that the video surveillance

footage—which was stipulated to by the parties and submitted as a joint exhibit—

formed the basis for Speedway’s line of questioning on this issue. In this footage,

Betty and Julie are holding hands as they walk from the parked car to the

convenience store. Notably, the footage depicts Julie and Betty holding hands up

until the point where they approach the curb. At this moment, Julie releases

Betty’s hand to move ahead of Betty in order to open the door for her. Thus, any



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Case No. 2-09-26


inference that Betty needed support is clearly rebutted by the footage itself which

demonstrates that Julie was not concerned about her mother’s ability to traverse

the three inch curb.        Moreover, this surveillance footage was replayed

repeatedly—frame by frame—throughout trial and thoroughly analyzed in front of

the jury by both parties’ experts. For all these reasons, Betty’s fourth assignment

of error is overruled.

                           The Third Assignment of Error

       {¶48} In her third assignment of error, Betty contends that the trial court’s

instructions to the jury were improper. Specifically, Betty maintains that the trial

court erred when it included an instruction on the doctrine of open and obvious

dangers and subsequently failed to give Betty’s requested instruction on

constructive notice to the jury.

       {¶49} In general, requested instructions should be given if they are correct

statements of the law applicable to the facts in the case and reasonable minds

might reach the conclusion sought by the instruction. Murphy v. Carrollton Mfg.

Co. (1991), 61 Ohio St.3d 585, 591, 575 N.E.2d 828. “In reviewing a record to

ascertain the presence of sufficient evidence to support the giving of a[n] * * *

instruction, an appellate court should determine whether the record contains

evidence from which reasonable minds might reach the conclusion sought by the

instruction.” Id., citing Feterle v. Huettner (1971), 28 Ohio St.2d 54, 57 O.O.2d



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213, 275 N.E.2d 340, at syllabus. In reviewing the sufficiency of jury instructions

given by a trial court, the proper standard of review for an appellate court is

whether the trial court’s refusal to give a requested jury instruction constituted an

abuse of discretion under the facts and circumstances of the case. State v. Wolons

(1989), 44 Ohio St.3d 64, 68, 541 N.E.2d 443. The term “abuse of discretion”

implies that the court's attitude is unreasonable, arbitrary, or unconscionable.

Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 5 OBR 481, 450 N.E.2d

1140.

                            Open and Obvious Dangers

        {¶50} Betty maintains that the trial court’s instruction on open and obvious

dangers was prejudicial to her case. In support of this assertion, Betty argues that

the trial court’s instruction improperly placed the burden on her to produce

evidence that the grate was not an open and obvious danger. Below are the

excerpted jury instructions with which Betty takes issue.

             An owner of property owes no duty to protect invitees who
        remain on the property from open and obvious dangers on the
        property. The open and obvious nature of the danger itself
        serves as a warning to the invitees. Invitees are expected to
        discover those dangers and to protect themselves.

        ***
            Before you can find for the plaintiff, the plaintiff must
        prove by the greater weight of the evidence that she was injured
        on the premises of defendant and that her injuries were
        proximately caused by a an unsafe condition of the premises
        which was not open and obvious to an ordinary person caused


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Case No. 2-09-26


      by the failure of the defendant, to use ordinary care; or, if the
      condition was not so created, that the condition was known to
      the defendant, and the defendant failed to use ordinary care to
      correct it or to provide notice of the condition.

      {¶51} The Supreme Court of Ohio summarized the case law on the open

and obvious doctrine in the following manner:

      Where a danger is open and obvious, a landowner owes no duty
      of care to individuals lawfully on the premises. [T]he owner or
      occupier may reasonably expect that persons entering the
      premises will discover those dangers and take appropriate
      measures to protect themselves. Thus, when a plaintiff is
      injured by an open and obvious danger, summary judgment is
      generally appropriate because the duty of care necessary to
      establish negligence does not exist as a matter of law.

Lang v. Holly Hill Motel, Inc., 122 Ohio St.3d 120, 123, 2009-Ohio-2495, 909

N.E.2d 120.

      {¶52} We further note, that the trial court’s instruction to the jury on open

and obvious dangers was given in a greater context than the excerpt above relied

upon by Betty, and included the following:

            An owner of property owes no duty to protect invitees
      who remain on the property from open and obvious dangers on
      the property. The open and obvious nature of the danger itself
      serves as a warning to the invitees. Invitees are expected to
      discover those dangers and to protect themselves. However,
      there may by [sic] “attendant circumstances” which limit the
      open and obvious nature of the danger.

             “Attendant circumstances” are factors beyond the control
      of the plaintiff that contribute to proximately cause the
      plaintiff’s injury. The phrase “attendant circumstances” refers
      to all the facts relating to the event causing the injury, such as


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Case No. 2-09-26


      time and place, surroundings or background of the event and
      any condition normally existing that would reasonably increase
      the normal risk of a harmful result from the event.

             If you find that attendant circumstances are present, then
      the open and obvious nature of the danger does not eliminate the
      duty of the owner to exercise ordinary care to keep the premises
      in a reasonably safe condition or provide notice of any dangers
      which the owner has knowledge.

            Before you can find for the plaintiff, the plaintiff must
      prove by the greater weight of the evidence that she was injured
      on the premises of defendant and that her injuries were
      proximately caused by a an unsafe condition of the premises
      which was not open and obvious to an ordinary person caused
      by the failure of the defendant, to use ordinary care; or, if the
      condition was not so created, that the condition was known to
      the defendant, and the defendant failed to use ordinary care to
      correct it or to provide notice of the condition.

             The defendant claims that the plaintiff was negligent. To
      sustain such claim defendant must prove by the greater weight
      of the evidence, that plaintiff failed to use that care for her own
      safety which a reasonably cautious person would use under the
      same or similar circumstances.

             In deciding whether ordinary care was used, you will
      consider whether either party ought to have foreseen under the
      circumstances that the natural and probable result of an act or
      failure to act would cause some injury.

             The test for foreseeability is not whether they should have
      foreseen the injury precisely as it happened to the specific
      person. The test is whether under all the circumstances a
      reasonably cautious person would have anticipated that injury
      was likely to result to someone from the act or failure to act.

             If either party, by the use of ordinary care, should have
      foreseen some injury and should not have acted, or if they did
      act, should have taken precautions to avoid the result, then the


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Case No. 2-09-26


       performance of the act or the failure to take such precautions is
       negligence.

       {¶53} After reviewing the complete context of the trial court’s instructions

on the relevant issue of overall negligence and within the framework of the

relevant case law, we cannot find that the trial court erred in instructing the jury as

it did. Further, when viewed in complete context as to the duty of care, we find

that the trial court’s instructions on open and obvious dangers were substantially

consistent with the relevant case law as stated by the Supreme Court of Ohio.

       {¶54} Thus, based on the above, the trial court’s instruction reflected the

correct statement of law and the evidence at trial supported the trial court’s

decision to give the instruction. Therefore, we cannot say the trial court abused its

discretion in giving the jury the instruction it did on open and obvious dangers.

                                 Constructive Notice

       {¶55} Betty also contends that the trial court erred when it refused to

instruct the jury on constructive notice as stated in her proposed jury instructions.

Instead, the court provided the following instruction:

       A business owes a duty to a customer or business invitee to use
       ordinary care for the care for the customer’s safety, to keep the
       premises in a reasonably safe condition, and to use ordinary care
       to provide notice of any concealed dangers of which the store has
       knowledge or which in the exercise of ordinary care should have
       discovered. You are instructed that Betty Warkoczeski was a
       customer or business invitee of Speedway SuperAmerica, LLC.




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Case No. 2-09-26


         {¶56} Initially we note that Betty fails to cite any authority supporting her

assertion that the trial court’s instruction is erroneous. However, after reviewing

the relevant case law it is apparent that the trial court’s instruction incorporated the

correct statement of the law.4

         {¶57} Based on the foregoing, the trial court did not abuse its discretion

when it instructed the jury on open and obvious dangers and when it refused to

include Betty’s proposed jury instructions on constructive notice. As such, Betty’s

third assignment of error is overruled.

         {¶58} For all the reasons stated above, the judgment of the Auglaize

County Court of Common Pleas is affirmed.

                                                                                  Judgment Affirmed

ROGERS and PRESTON, J.J., concur.

/jlr




         4
           A business owner owes business invitees a duty of ordinary care, which includes the duty to
maintain the premises in a reasonably safe condition and to warn an invitee of latent or concealed defects of
which the owner has or should have knowledge. Perry v. Eastgreen Realty Co. (1978), 53 Ohio St.2d 51,
52-53, 7 O.O.3d 130, 130-131, 372 N.E.2d 335, 336; Kubiszak v. Rini's Supermarket (1991), 77 Ohio
App.3d 679, 686, 603 N.E.2d 308, 313.



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