Am. States Ins. Co. v. Caputo , 126 Ohio App. 3d 401 ( 1998 )

I respectfully dissent. The majority opinion in my view stretches to reverse the trial court's judgment.

The majority's conclusions about whether the jury may have considered Finast to be as culpable as Caputo Brothers are misplaced. The issue raised by appellants' first assignment of error concerned only whether the trial court erred in not giving a jury charge on the issue of concurrent causation. Review of the trial court's charge to the jury reveals:.

"If you find that the defendants failed to install fire stops, and that failure — and that failure to install contributed to the spread of the fire, then the defendant was negligent, and is a proximate cause of the damages, which you must ultimately determine. And your verdict in that event would be for the plaintiff.

"The defendant denies that any acts or omissions of Caputo Brothers proximately caused any of the damages alleged by the plaintiff. If you find that no acts or omissions proximately caused the damages, then your verdict should be for the defendant."

And it further reveals that the jury returned a verdict for the defendants. This verdict means that Caputo Brothers did not proximately cause any of the damage sustained by appellants, which makes moot the issue that their alleged negligence concurrently caused some of the damage. The court's charge on concurrent negligence in this case is not a proper basis of reversible error.

Regarding the fourth assignment of error, appellants, citingWestinghouse Elec. Corp. v. Dolly Madison Leasing FurnitureCorp. (1975), 42 Ohio St.2d 122, 71 O.O.2d 85, 326 N.E.2d 651, contend that the trial court abused its discretion by allowing into evidence the substance of witness statements contained in the official reports of the Richmond Heights Fire Department and the State Fire Marshal. However, in Westinghouse, a similar case which involved the cause of a warehouse fire in Evendale, Ohio, the trial court there admitted into evidence the fire department investigative reports, including the statements of witnesses who had appeared at trial. The court's syllabus states in part, "[I]t is error to admit such statements in evidence, even though contained in an official report * * *."

Clearly, the trial court in this case did not admit the official fire reports into evidence. Rather, during the trial of this case, appellants' expert, James P. Churchwell, testified to a reasonable degree of professional certainty that the lack of fire-stops proximately caused the destruction of the Hilltop Shopping Center; on cross-examination, however, Churchwell admitted that he used information from Jenny Oberon whose statement was contained in the State Fire Marshal's report. Likewise, appellees' expert, Dr. George Kramerich, admitted that in formulating his opinion that the fire-stops would not have contained or suppressed the fire, he used statements of witnesses contained in the official fire reports.

Citing Evid.R. 705, the majority concludes that Churchwell's opinion is admissible, but the admission of Kramerich's constitutes reversible error. This, in my view, is unfair.

Evid.R. 705 states:

"The expert may testify in terms of opinion or inference and give his reasons therefor after disclosure of the underlying facts or data. The disclosure may be in response to a hypothetical question or otherwise." (Emphasis added.)

Here, the statements of witnesses contained in the official fire reports were not admitted into evidence or offered for the truth of the statements per se, but only utilized by both experts in formulating their opinions regarding whether or how the absence of fire stops in the construction of the shopping center affected the fire. Fairness dictates that if Churchwell can testify, Kramerich ought to be able to do so as well, since both experts utilized the same official fire reports in formulating their opinions. The use of these reports in formulating expert opinions is a matter better left to test their credibility as witnesses and goes to the weight to be given their testimony, not admissibility, because the witness statements were not admitted into evidence as in Westinghouse, supra. The trial court properly charged the jury on the issues of credibility and the weight to be given the expert testimony.

For these reasons, I dissent from the majority's opinion. I would affirm the judgment of the trial court.