McFarland v. Gillespie , 2019 Ohio 1050 ( 2019 )

[Cite as McFarland v. Barnes, 2019-Ohio-1050.]
COURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
ANGELA MCFARLAND : Hon. W. Scott Gwin, P.J.
: Hon. Craig R. Baldwin, J.
Plaintiff-Appellant : Hon. Earle E. Wise, J.
:
-vs- :
: Case No. 18-CA-17
ROBERT GILLESPIE :
:
Defendant : OPINION
AND
LAWRENCE M. BARNES, JR.
Defendant-Appellee
CHARACTER OF PROCEEDING: Civil appeal from the Fairfield County Court
of Common Pleas, Case No. 2016CV00357
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: March 22, 2019
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
MARK TOLLES II MICHAEL HENRY
36 South Paint Street 500 South Front Street, Suite 1200
Chillicothe, OH 45601 Columbus, OH 43215
[Cite as McFarland v. Barnes, 2019-Ohio-1050.]
Gwin, P.J.
{¶1} Appellant appeals the judgments in favor of appellee of the Fairfield County
Court of Common Pleas.
Facts & Procedural History
{¶2} This matter arose from a motor vehicle accident involving appellant Angela
McFarland (“McFarland”), Richard Goshorn (“Goshorn”), appellee Lawrence Barnes
(“Barnes”), and Robert Gillespie (“Gillespie”) on State Route 674 in Bloom, Ohio. Gillespie
was operating a van and Goshorn and Barnes were operating two of a group of four
motorcycles that were travelling together from Chillicothe towards Groveport. Appellant
was a passenger on Goshorn’s motorcycle. Goshorn was operating the lead motorcycle
and Barnes was operating the second motorcycle. The motorcycles were proceeding
northbound on State Route 674 and Gillespie was operating a passenger van southbound
on State Route 674. Marcy’s restaurant sits on the northeast corner of the intersection of
State Route 674 and Fairfield County Road 41. As the motorcycles approached the
intersection, a line of traffic in the southbound lane had stopped and Gillespie was waiting
to make a left-hand turn into the restaurant. Gillespie’s vehicle lurched forward twice and
the front of his van crossed the double-yellow center lines of the road. Gillespie’s van
struck Goshorn’s motorcycle. Barnes’ elbow came into contact with Goshorn’s motorcycle.
Appellant was ejected from the motorcycle.
{¶3} On June 22, 2016, Barnes filed a complaint against Goshorn and Gillespie.
Barnes avers Goshorn and Gillespie were negligent and, as a direct and proximate cause
of their negligence, Barnes was injured. Appellant filed a complaint on July 5, 2016 against
Gillespie and Barnes. The complaint alleges that on July 5, 2014, appellant was a
Fairfield County, Case No. 18-CA-17 3
passenger on a motorcycle driven by Goshorn, her husband. Appellant states Gillespie
negligently operated a motor vehicle causing it to collide into the motorcycle on which
appellant was a passenger and, as a direct and proximate result of his negligence,
appellant sustained injury. The complaint further alleges that on July 5, 2014, Barnes
negligently operated a motorcycle causing it to collide into the motorcycle on which
appellant was a passenger and, as a direct and proximate result of his negligence,
appellant sustained injury. Appellant also avers Barnes’ actions constitute negligence per
se.
{¶4} Barnes filed an answer to appellant’s complaint on July 26, 2016. Barnes
asserted the following affirmative defenses in his answer: contributory/comparative
negligence of appellant and/or third parties; failure to join necessary parties; failure to
mitigate damages; sudden emergency; and unavoidable accident. On September 28,
2016, appellant filed a motion to consolidate the cases. The trial court granted appellant’s
motion to consolidate on November 2, 2016. Barnes voluntarily dismissed Goshorn on
November 23, 2016.
{¶5} On January 13, 2017, Barnes dismissed Gillespie after reaching a
settlement. On March 14, 2017, the trial court issued a partial entry of dismissal with
prejudice, agreed to by both counsel for appellant and counsel for Gillespie, dismissing
appellant’s complaint against Gillespie due to a settlement by the parties. Thus, the only
claims remaining were appellant’s claims against Barnes.
{¶6} The case went to trial on December 13 and December 14, 2017. Prior to
the trial, the trial court ruled on motions in limine and found Barnes could introduce
Fairfield County, Case No. 18-CA-17 4
evidence that appellant settled with Gillespie, but could not introduce any testimony or
evidence as to the amount of the settlement.
{¶7} Barnes testified there were four motorcycles in his group on the date of the
accident. Barnes testified the lead time for experienced drivers to minimize their risk of
injury is two seconds if you are following the bike directly behind, but it is a second behind
the lead bike if you are in a staggered formation; however, you should always look ahead.
Barnes stated when he first saw the minivan, the group of motorcycles slowed down, but
didn’t stop, going through the intersection. There was a restaurant on the right and the
traffic was stopped and there was a row of cars. As soon as they got through the
intersection, Goshorn accelerated. Barnes accelerated to keep up to avoid the slinky
effect. Barnes stated Goshorn locked up and Barnes saw the van jump forward like it was
popping the clutch, and then stop. Barnes testified he had room to go around Goshorn
and he was missing everything until Goshorn hit the front of the van. Barnes estimated he
was travelling at 35-45 miles per hour. When he went through the intersection, Barnes
was two seconds behind Goshorn because he was playing catchup when Goshorn
accelerated. Barnes did not see the van until Goshorn applied his brakes.
{¶8} Barnes stated when he saw Goshorn’s brake lights come on, he let go of
the throttle. Barnes testified he was really close to the gravel parking lot, but did not travel
off the pavement. Barnes clipped Goshorn’s mirror, got pulled back onto the road a little
bit, then off; Barnes kept his bike under control and laid it down in the middle of the road.
{¶9} Barnes testified he intended to go around Goshorn on the right side.
Goshorn was maintaining a straight line, so Barnes felt safe going around. Barnes saw a
row of cars in the parking lot and did not see anything as a threat.
Fairfield County, Case No. 18-CA-17 5
{¶10} Goshorn testified on the date of the accident, they were riding motorcycles
in the staggered formation. Goshorn stated the speed limit was 55. Goshorn saw some
congestion around the area of the intersection, so he slowed down to around 40 miles an
hour when he saw a van starting to come across the lane. The van stopped and then
started again and Goshorn was not very far away at that point in time. Goshorn stated he
started to skid about twenty feet or so in a controlled skid in an attempt to get out of the
way of the van. Goshorn testified when he started to slow down, he flicked his brakes to
let the people behind him know he was slowing down and Barnes should have seen his
lights flash. Goshorn stated Barnes hit his mirror with his elbow and knocked Goshorn
into the van. It is his recollection there was no contact between the van and his motorcycle
before Barnes contacted his right mirror. After Barnes hit Goshorn’s mirror, appellant fell
off the side of the motorcycle. When asked if there was any reason why Barnes could not
have traveled off the edge of the road to get around him, Goshorn stated “nobody likes to
go in gravel” and the whole parking lot there was gravel, so “that would be a good reason
not to.” Goshorn thinks Barnes could have braked. Goshorn thinks there was enough
room for Barnes to drive around him.
{¶11} On cross-examination, Goshorn testified after Barnes’ elbow hit his mirror,
the front of Goshorn’s bike hit the front of the van.
{¶12} Appellant testified that on the day of the accident, they started riding in
Chillicothe and were on their way to Groveport. They were about forty minutes into the
ride when the accident happened. Appellant was a passenger on Goshorn’s motorcycle,
the lead motorcycle, and there were four motorcycles in the staggered position. Appellant
did not see the van right away because she was looking at the diner. Appellant felt
Fairfield County, Case No. 18-CA-17 6
Goshorn tense up and she thought the van was going to hit them head-on. After Goshorn
moved to the right, she thought he was going to be able to get around the van. When
Barnes’ elbow came in contact with the mirror, she was thrown off to the right. Appellant
landed in gravel on the edge of the parking lot and the road. Appellant testified to her
injuries.
{¶13} On cross-examination, appellant confirmed she was a passenger on
Goshorn’s motorcycle on the left and Barnes was on the right side of the lane, and
everyone was going the same speed. The van traveling in the opposition direction turned
left in front of Goshorn, so Goshorn locked up the brakes and began skidding. Appellant
stated Goshorn went sideways a little and he went to the right as he was skidding.
Appellant testified the van struck the bike and pushed them a little to the right. Appellant
felt the bike hit the van before the mirror hit Barnes’ elbow. Appellant later learned the van
that went left of center was operated by Gillespie.
{¶14} On re-direct, appellant stated Goshorn would have been in a better position
to see what happened with contact with the van. However, she was also feeling the impact
and what she experienced was not just based on sight.
{¶15} On re-cross examination, appellant testified she remembers the accident
and remembers the bike and van coming into contact when the van went left of center.
When asked whether Barnes is responsible for all her injuries, appellant testified her
feeling is that she wouldn’t have been injured had Barnes not come in contact with the
bike. Appellant confirmed she sued Gillespie and “reached a settlement with him.”
Fairfield County, Case No. 18-CA-17 7
{¶16} On December 14, 2017, the jury returned a verdict in favor of Barnes. In
the first jury interrogatory, the jury found Barnes was not negligent. The trial court entered
judgment in favor of Barnes on December 14, 2017.
{¶17} On January 11, 2018, appellant filed a motion for judgment notwithstanding
the verdict, or, in the alternative, a motion for new trial. Appellant argued the jury’s finding
that Barnes was not negligent was against the weight of the evidence. Appellant
contended that, from the testimony, the only reasonable conclusion which the jury could
reach was that Barnes was negligent for violating R.C. 4511.28. Appellant also argued
she was entitled to a new trial because evidence of the settlement with Gillespie was
inadmissible. Appellant finally argued a new trial is warranted because the trial court failed
to properly instruct the jury as to the burden with respect to affirmative defenses. Barnes
filed a memorandum in opposition to appellant’s motion on February 1, 2018. Appellant
filed a reply on February 2, 2018.
{¶18} The trial court issued a judgment entry on April 9, 2018. The trial court
found, in viewing the testimony and evidence presented at trial in a light most favorable to
the nonmoving party, reasonable minds could find Barnes did not negligently operate his
motorcycle under the circumstances. Further, that since the jury’s verdict was supported
by some competent and credible evidence, the trial court could not reverse the jury’s
decision as a matter of law. The trial court additionally found the limited evidence
introduced regarding appellant’s settlement agreement with Gillespie in order to provide
context of the accident and why certain parties were not present at trial was relevant and
not unduly prejudicial to appellant. Finally, the trial court found the jury instructions
Fairfield County, Case No. 18-CA-17 8
provided were accurate statements of law and appellant never expressly objected to the
absence of affirmative defense instructions.
{¶19} Appellant appeals the judgments in favor of Barnes of the Fairfield County
Court of Common Pleas and assigns the following as error:
{¶20} “I. THE TRIAL COURT ERRED IN PERMITTING THE JURY TO HEAR
AND CONSIDER EVIDENCE THAT PLAINTIFF-APPELLANT ANGELA MCFARLAND
HAD “SETTLED” HER CLAIMS AGAINST ROBERT GILLESPIE.
{¶21} “II. THE TRIAL COURT ERRED IN OVERRULING PLAINTIFF-
APPELLANT ANGELA MCFARLAND’S MOTION PURSUANT TO CIV.R. 50 TO SET
ASIDE THE JURY’S VERDICT AND FIND AS A MATTER OF LAW THAT DEFENDANT-
APPELLEE LAWRENCES BARNES, JR. WAS NEGLIGENT PER SE FOR VIOLATING
R.C. 4511.28 AND R.C. 4511.21.
{¶22} “III. TO THE EXTENT THAT THE JURY WAS PERMITTED TO CONSIDER
ANY AFFIRMATIVE DEFENSES, THE TRIAL COURT’S INSTRUCTIONS TO THE JURY
WERE INADEQUATE AND FAILED TO INFORM THE JURY AS TO DEFENDANT-
APPELLEE LAWRENCE BARNES, JR.’S BURDEN OF PROOF AS TO AFFIRMATIVE
DEFENSES ON ISSUES RELATED TO R.C. 2307.23 AND VIOLATIONS OF R.C.
4511.28 AND R.C. 4511.21
{¶23} “IV. THE TRIAL COURT ERRED IN REFUSING TO ORDER A NEW TRIAL
AS THE JURY’S VERDICT IN THIS CASE WAS AGAINST THE MANIFEST WEIGHT OF
THE EVIDENCE.”
Fairfield County, Case No. 18-CA-17 9
I.
{¶24} In her first assignment of error, appellant argues the trial court erred in
permitting the jury to hear and consider evidence that she settled her claims against
Gillespie. Appellant contends this evidence was irrelevant, unfairly prejudicial, and
misleading to the jury and should have been excluded. Appellant argues the trial court
should have excluded the settlement evidence because Barnes did not properly present
an affirmative defense pursuant to R.C. 2307.23.
{¶25} Decisions regarding the admissibility of evidence are within the broad
discretion of the trial court. Beard v. Meridia Huron Hospital, 106 Ohio St. 3d 237, 834
N.E.2d 323 (2005). A decision to admit or exclude evidence will be upheld absent an
abuse of discretion. Id. Abuse of discretion is more than an error of law or judgment;
rather, it implies that the court’s attitude is unreasonable, arbitrary, or unconscionable.
Blakemore v. Blakemore, 5 Ohio St. 3d 217, 450 N.E.2d 1140 (1983).
{¶26} Upon review, we find the trial court did not abuse its discretion in admitting
the evidence pursuant to Evidence Rule 408. Evidence Rule 408 provides that evidence
of settlement is not admissible to prove liability for or invalidity of the claim or its amount.
However, Rule 408 “does not require exclusion when the evidence is offered for another
purpose,” such as proving bias or prejudice of a witness, negating a contention of undue
delay, or proving an effort to obstruct a criminal investigation or prosecution. Evid.R. 408.
The Staff Notes to Rule 408 provide, “the enumerated list of other purposes is not
exhaustive, being introduced with the phrase “…such as….” Staff Notes to Evid.R. 408.
{¶27} Accordingly, settlement evidence is admissible when it is presented for
some other purpose. Id.; Gadberry v. Eastgate Lawn & Tractor, Inc., 12th Dist. Clermont
Fairfield County, Case No. 18-CA-17 10
No. CA2006-05-037, 2007-Ohio-2849 (finding no abuse of discretion when the trial court
allowed questioning regarding settlement with another party because the evidence was
admissible to explain why John Deere was not a party to the case); Lewis v. Alfa Laval
Separation, Inc., 128 Ohio App. 3d 200, 714 N.E.2d 426 (4th Dist. Lawrence 1998) (finding
no abuse of discretion when the trial court admitted settlement evidence to explain why
one person was not a party in the case); Mark v. Mellott Manuf. Co., 106 Ohio App. 3d 571,
666 N.E.2d 631 (4th Dist. Ross 1995) (holding OSHA records of informal settlement are
relevant to a consideration of whether an intervening or superseding cause proximately
caused the appellant’s injuries); Swearingen v. Swearingen, 10th Dist. Franklin No. 06AP-
698, 2007-Ohio-1241 (finding it was not an abuse of discretion to introduce settlement
evidence to prove venue); Shimola v. City of Cleveland, 89 Ohio App. 3d 505, 625 N.E.2d
626 (8th Dist. 1992) (finding no abuse of discretion in trial court allowing questioning on a
settled mandamus action because the evidence was introduced for reasons other than
proving liability).
{¶28} In this case, the trial court admitted limited evidence that appellant had sued
Gillespie and reached a settlement with him not to prove “liability or invalidity of the claim,”
but rather to assist the jury in understanding why Gillespie was not present at trial. The
trial court limited the evidence it allowed regarding the settlement, admitting only the fact
that appellant settled with Gillespie, but prohibiting Barnes from introducing any evidence
or questioning appellant with regards to the amount of the settlement. The trial court
further instructed the jury they were not to “speculate about any matters that were not
presented as evidence.”
Fairfield County, Case No. 18-CA-17 11
{¶29} Both parties discussed Gillespie during their opening statements and
closing arguments. All three witnesses who testified at trial testified about the actions of
the driver of the van at the time of the accident and whether the van hit Goshorn before or
after Barnes clipped Goshorn’s mirror. The parties stipulated that Gillespie was negligent
and the following stipulation was agreed to in the jury instructions, “You are also instructed
that the driver of the van, Robert Gillespie, was negligent by driving left of center while the
vehicle in which Plaintiff was a passenger was so near his vehicle as to present an
imminent danger.”
{¶30} Additionally, during the trial, appellant argued that while Gillespie was
negligent, the negligence of Barnes was the sole proximate cause of her injury and
damages, whereas Barnes argued Gillespie was the proximate cause of appellant’s
injuries and damages. The trial court thus acted within its discretion in permitting limited
testimony for the purpose of impeachment and/or to show bias or prejudice of the witness.
McMiller v. Bond, 5th Dist. Richland No. CA-2641, 1989 WL 63296 (May 15, 1989) (holding
trial court acted within its discretion in permitting testimony about settlement for the limited
purpose of impeachment); Scott v. Braun, 7th Dist. Jefferson No. 94-J-13, 1995 WL
697836 (Nov. 22, 1995) (finding since appellant claimed appellee was the sole proximate
cause of the accident, it was permissible under Evid.R. 408 for appellee’s counsel to show
that appellant had filed a claim against another defendant alleging he was the proximate
cause of the accident because the evidence was used to show bias or prejudice).
{¶31} Further, “an improper evidentiary ruling constitutes reversible error only
when the error affects the substantial rights of the adverse party or the ruling is inconsistent
with substantial justice.” Beard v. Meridia Huron Hospital, 106 Ohio St. 3d 237, 834 N.E.2d
Fairfield County, Case No. 18-CA-17 12
323 (2005); Civil Rule 61. To determine if a ruling affects the substantial rights of the
adverse party or is inconsistent with substantial justice, a “reviewing court must not only
weigh the prejudicial effects of those errors but also determine that, if those errors had not
occurred, the jury * * * would probably have made the same decision.” Id.
{¶32} In this case, we find, even without the very limited settlement testimony, the
jury had ample evidence from which it would have probably made the same decision in
the absence of any alleged error. The settlement evidence was not the only evidence at
trial from which a jury could have concluded Barnes was not negligent. Exhibit B is
photographic evidence of the scene of the accident, and shows Gillespie’s van across the
center lines. Barnes testified he had room to go around and he was missing everything
until Gillespie hit Goshorn. Appellant testified that she felt Gillespie’s van hit them before
Barnes hit Goshorn’s mirror.
{¶33} Thus, even if the trial court did err in admitting the evidence regarding the
settlement between appellant and Gillespie, any such error is harmless because appellant
has not demonstrated the admission of the testimony at issue affected her substantial
rights.
{¶34} Appellant’s first assignment of error is overruled.
II.
{¶35} In her second assignment of error, appellant argues the trial court erred in
overruling her Civil Rule 50(B) motion to set aside the verdict.
{¶36} Civil Rule 50(B) governs motions for judgment notwithstanding the verdict.
When ruling on a motion for JNOV, a trial court applies the same test as in reviewing a
motion for a directed verdict. Ronske v. Heil Co., 5th Dist. Stark No. 2006-CA-00168,
Fairfield County, Case No. 18-CA-17 13
2007-Ohio-5417; Pariseau v. Wedge Products, Inc., 36 Ohio St. 3d 124, 522 N.E.2d 511
(1988). In reviewing a motion for JNOV, courts do not consider the weight of the evidence
or the witness credibility; rather, courts consider the much narrower legal question of
whether sufficient evidence exists to support the verdict. Texler v. D.O. Summers
Cleaners & Shirt Laundry Co., 81 Ohio St. 3d 677, 693 N.E.2d 271 (1998). In other words,
if there is evidence to support the nonmoving party’s side so that reasonable minds could
reach different conclusions, the court may not usurp the jury’s function and the motion
must be denied. Osler v. City of Lorain, 28 Ohio St. 3d 345, 504 N.E.2d 19 (1986).
Appellate review of a ruling on a motion for JNOV is de novo. Midwest Energy
Consultants, L.L.C. v. Utility Pipeline, Ltd., 5th Dist. Stark No. 2006CA00048, 2006-Ohio-
6232.
{¶37} Appellant specifically contends the trial court erred in denying her motion
because reasonable minds could only conclude from the evidence presented during the
trial that Barnes violated R.C. 4511.28 and was therefore negligent per se. Appellant
argues Barnes was unlawfully operating his motorcycle when he attempted to pass on the
right of Goshorn’s motorcycle.
{¶38} R.C. 4511.28 provides that a driver of a vehicle may overtake and pass
upon the right of another vehicle under the following conditions:
(1) When the vehicle * * * overtaken is making or about to make a left turn;
(2) Upon a roadway with unobstructed pavement of sufficient width for two
or more lines of vehicles moving lawfully in the direction being traveled by
the overtaking vehicle.
Fairfield County, Case No. 18-CA-17 14
(B) The driver of a vehicle * * * may overtake and pass another vehicle * * *
only under conditions permitting such movement in safety. The movement
shall not be made by driving off the roadway.
{¶39} Appellant argues since R.C. 4511.28 applies to this case, and Barnes did
not comply with R.C. 4511.28, that is the end of the inquiry and Barnes is negligent per se
because he did not properly present any affirmative defense. We disagree.
{¶40} First, there is a question as to whether a violation of R.C. 4511.28
establishes negligence per se. A statute imposes negligence per se when the statute
“commanding or prohibiting for the safety of others the doing of a specific act and there is
a violation of such enactment solely by one whose duty it is to obey it.” Mussivand v.
David, 45 Ohio St. 3d 314, 544 N.E.2d 265 (1989). However, when one violates a statute
that only proscribes a rule of conduct in general or abstract terms, negligence per se does
not apply and “liability must be determined by the application of the test of due care as
exercised by a reasonably prudent person under the circumstances.” Id.
{¶41} In Westerfelt v. Rooker, 4 Ohio St. 3d 146, 447 N.E.2d 1307 (1983), the Ohio
Supreme Court held that a violation of R.C. 4511.28 does not amount to negligence per
se because the statute “does not allude to the commission or omission of any specific act”
and “permission to pass is conditioned solely upon what the stranger ahead intends to do
and intent, being a subjective matter, necessarily depends upon an evaluation of multiple
facts and circumstances.” Id. The Ohio Supreme Court reaffirmed its Westerfelt decision
in Mussivand v. David, 45 Ohio St. 3d 314, 544 N.E.2d 265 (1989), stating “we found [in
Westerfelt] that negligence per se was not applicable to R.C. 4511.28 in that it did not
‘allude to the commission or omission of any specific act.’”
Fairfield County, Case No. 18-CA-17 15
{¶42} Appellant cites cases from several districts after Westerfelt finding that a
violation of R.C. 4511.28 is negligence per se. Weisbarth v. Smeal, 8th Dist. Cuyahoga
No. 63347, 1993 WL 277188 (July 22, 1993) (finding appellant’s violation of R.C. 4511.28
is negligence per se); Rutherford v. Lister, 4th Dist. Lawrence No. 1580, 1983 WL 3165
(March 29, 1983) (finding a violation of R.C. 4511.28 to be negligence per se). However,
this Court has previously cited favorably to Westerfelt and has specifically cited the holding
in Westerfelt that R.C. 4511.28 did not allude to the commission or omission of any specific
act and the question of whether a R.C. 4511.28 violation occurred necessarily depends
upon an evaluation of multiple facts and circumstances. Birch v. Heropulos, 5th Dist. Stark
No. 2007 CA 00016, 2007-Ohio-4252.
{¶43} Thus, pursuant to the holdings of the Ohio Supreme Court, liability in this
case must be determine by the application of the test of due care as exercised by a
reasonably prudent person under the circumstances and “proof will be necessary that the
defendant failed to act as a reasonably prudent person under like circumstances.” Sikora
v. Wenzel, 88 Ohio St. 3d 493, 727 N.E.2d 1277 (2000). We find there is sufficient
evidence from which the jury could have reasonably concluded Barnes did not violate R.C.
4511.28. Barnes testified he had room to go around Goshorn and he was missing
everything until the van hit Goshorn. Further, that he was close to the gravel parking lot,
but did not travel off the roadway at any point, and he felt safe going around Goshorn.
Barnes also stated the road was wide enough for two lines of motorcycles traveling in the
same direction.
{¶44} Additionally, even if we were to adopt the reasoning set forth in Wesibarth
and Rutherford, under the facts of this case, the application of R.C. 4511.28 does not end
Fairfield County, Case No. 18-CA-17 16
the inquiry. The cases cited by appellant that involve motorcycles involve a motorcycle
passing or attempting to pass a car or cars or a car attempting to pass a motorcycle. None
of the cases involve a situation in which a motorcyclist is found to have violated R.C.
4511.28 for passing another motorcyclist on the right while travelling in a staggered
formation.
{¶45} R.C. 4511.55(B) provides, “persons riding bicycles or motorcycles upon a
roadway shall ride not more than two abreast in a single lane, except on paths or parts of
roadways set aside for the exclusive use of bicycles or motorcycles.” Barnes also entered
into evidence a portion of Ohio’s Motorcycle Operator Manual which provides the
staggered formation “is the best way to keep the ranks close yet maintain an adequate
space cushion. The group leader rides in the left side of the lane, and the second rider
stays at least one second back and rides in the right side of the lane * * *.” Barnes,
Goshorn, and appellant all testified that they were riding in the staggered formation, with
Goshorn as the leader and Barnes as the second rider.
{¶46} In this case, we find R.C. 4511.28 and R.C. 4511.55 must be looked at in
conjunction to determine liability. The trial court thus properly gave the jury instructions
on both operating motorcycles on the roadway and passing on the right. The trial court
instructed the jury that persons riding motorcycles upon a roadway shall not ride more than
two abreast in a single lane and that the driver of a vehicle may overtake and pass another
vehicle to the right side only when on a roadway with two or more lanes of travel in the
same direction where there is unobstructed pavement wide enough for both vehicles to
permit passing and such overtaking and passing is only permitted where such movement
can be made safely. There was sufficient evidence from which the jury could have
Fairfield County, Case No. 18-CA-17 17
reasonably determined Barnes was not negligent when reading R.C. 4511.28 in
conjunction with R.C. 4511.55(B).
{¶47} Appellant additionally contends the trial court erred in denying her motion
because the uncontroverted evidence presented during the jury trial demonstrated Barnes
violated R.C. 4511.21 and was therefore negligent per se.
{¶48} We first note that in appellant’s motion before the trial court, she did not
argue that the uncontroverted evidence presented at trial demonstrated Barnes violated
R.C. 4511.21. A party waives and may not raise on appeal any error which arises during
the trial court proceedings if that party fails to bring the error to the court’s attention at a
time when the trial court could avoid or correct that error. Goldfuss v. Davidson, 79 Ohio
St.3d 116, 679 N.E.2d 1099 (1997). A failure to object at trial waives all but plain error.
Id. The plain error doctrine is applicable in civil cases only where the error “seriously
affects the basic fairness, integrity, or public reputation of the judicial process.” Id. The
Ohio Supreme Court stated the public’s confidence is rarely upset merely by forcing civil
litigants to live with the errors they themselves or the attorney chosen by them committed
at trial. Id. Plain error does not exist unless it can be said that but for the error, the
outcome of the trial would have clearly been otherwise. State v. Moreland, 50 Ohio St. 3d
58, 552 N.E.2d 58 (1990); In the Matter of D.M., 5th Dist. Guernsey No. 18 CA 18, 2018-
Ohio-4737. Upon review, we find appellant cannot show that a deviation from a legal rule
occurred, that the alleged error was an “obvious” defect in the trial proceedings, and that
this error affected the outcome of the trial. Accordingly, the plain error doctrine does not
apply.
Fairfield County, Case No. 18-CA-17 18
{¶49} Additionally, a violation of R.C. 4511.21(A) depends on whether there is
evidence the driver collided 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. Hale v. State Farm Mut.
Auto Ins. Co., 5th Dist. Stark No. 2017CA00223, 2018-Ohio-3035. Where conflicting
evidence is presented as to any of the elements necessary to establish a violation of R.C.
4511.21(A), a jury question is created. Id. “Especially in cases involving the assured-
clear-distance statute which, by definition, require evaluation of the conduct of the driver
in light of the facts surrounding the collision, the judgment of a jury is more likely to achieve
a fair result than is a judge-made rule of law.” Blair v. Goff-Kirby Co., 49 Ohio St. 2d 5, 358
N.E.2d 634 (1976). In this case, we find there was conflicting evidence of the elements
necessary to establish a violation of R.C. 4511.21(A); thus, a jury question was created
and the trial court properly denied the JNOV.
{¶50} Based on the foregoing, we find the trial court did not err in denying
appellant’s motion for JNOV. Appellant’s second assignment of error is overruled.
III.
{¶51} In her third assignment of error, appellant contends that, to the extent the
jury was permitted to consider any affirmative defenses, the trial court’s instructions to the
jury were inadequate and failed to inform the jury as to Barnes’ burden of proof for
affirmative defenses.
{¶52} The determination of whether to give a jury instruction is a matter left to the
sound discretion of the trial court. A trial court is obligated to provide jury instructions
which correctly and completely state the law. Cromer v. Children’s Hospital Med. Ctr. of
Fairfield County, Case No. 18-CA-17 19
Akron, 142 Ohio St. 3d 257, 2015-Ohio-229, 29 N.E.3d 921. The jury instructions also
must be warranted by the evidence presented in the case. Estate of Hall v. Akron Gen.
Med. Ctr., 125 Ohio St. 3d 300, 2010-Ohio-1041, 927 N.E.2d 1112. The question of
whether a jury instruction is legally correct and factually warranted is subject to de novo
review. Id. An inadequate instruction which misleads the jury constitutes reversible error.
Marshall v. Gibson, 19 Ohio St. 3d 10, 482 N.E.2d 583 (1985). Our standard of review
when it is claimed improper jury instructions were given is to consider the jury charge as
a whole and determine whether the charge misled the jury in a manner affecting the
complaining party’s substantial rights. Lowder v. Domingo, 5th Dist. Stark No.
2016CA00043, 2017-Ohio-1241.
{¶53} Appellant argues, assuming arguendo, that Barnes properly asserted an
affirmative defense at trial, the trial court erred by failing to instruct the jury regarding
Barnes’ burden of proof on that issue.
{¶54} First, Barnes did not argue an affirmative defense at trial. Barnes argued
at trial that he was not negligent and did not violate either R.C. 4511.28 or R.C. 4511.21.
Thus, the trial court did not err by failing to instruct the jury regarding Barnes’ burden of
proof. The jury instructions provided by the trial court were accurate statements of law.
{¶55} Further, in this case, the trial court composed proposed instructions and let
the parties make their requests and objections on the record. Counsel for appellant
specifically requested instructions on assured clear distance, passing on the right,
reasonable control, and permanent injury. The trial court included these instructions.
While appellant did include in her proposed instructions affirmative defense instructions,
Fairfield County, Case No. 18-CA-17 20
appellant did not raise the issue when the trial court requested comments, requests, and
objections to the jury instructions.
{¶56} Civil Rule 51 provides, “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.” As this Court has previously stated, “it is well-established that a party may not
assign as error on appeal ‘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.’” Pratt v. Easton Technical Products, 5th Dist. Stark
No. 2014CA00144, 2015-Ohio-3180 (finding including a proposed jury instruction was not
sufficient to comply with Civil Rule 51’s requirement of a specific objection). “Moreover, it
is well-settled that failure to object at the trial court level to a complained of error results in
a waiver of that error on appeal.” Id. Appellant did not object to the absence of any
affirmative defense instructions and did not object to the instruction regarding burden of
proof as proposed by the trial court.
{¶57} Additionally, upon review of the record, we find no indication of plain error
in the instant case. Assuming, arguendo, the trial court should have instructed the jury on
affirmative defenses, any error does not rise to the level expressed in Goldfuss v.
Davidson, 79 Ohio St. 3d 116, 679 N.E.2d 1099 (1997).
{¶58} Appellant’s third assignment of error is overruled.
Fairfield County, Case No. 18-CA-17 21
IV.
{¶59} In her fourth assignment of error, appellant contends the trial court erred in
denying her motion for new trial pursuant to Civil Rule 59, as the jury’s verdict was against
the manifest weight of the evidence.
{¶60} Civil Rule 59(A)(6) allows for a new trial when the “judgment is not sustained
by the weight of the evidence.” When considering a motion for a new trial pursuant to Civil
Rule 59(A)(6), a court must weigh the evidence and pass on the credibility of the
witnesses. A new trial will not be granted where the verdict is supported by competent,
substantial, and apparently credible evidence. Harris v. Mt. Sinai Med. Ctr., 116 Ohio St. 3d
139, 2007–Ohio–5587, 876 N.E.2d 1201. Because a trial court is in the best position to
decide issues of fact, it is vested with broad discretion in ruling upon motions for new trial
based upon Civil Rule 59(A)(6). Id. Our standard of review on a motion for new trial is
abuse of discretion. Civil Rule 59. In order to find an abuse of discretion, we must
determine the trial court's decision was unreasonable, arbitrary, or unconscionable and
not merely an error of law or judgment. Blakemore v. Blakemore, 5 Ohio St. 3d 217, 450
N.E.2d 1140 (1983).
{¶61} Appellant argues the verdict is against the manifest weight of the evidence
because the uncontroverted evidence indicated the jury must find Barnes negligent as a
matter of law.
{¶62} Upon review, we find no abuse of discretion in the trial court’s refusal to
grant a new trial on the basis of the manifest weight of the evidence and find the verdict is
supported by competent, credible, and substantial evidence. Barnes and Goshorn testified
that, prior to the accident, they were travelling in the same lane in a staggered position.
Fairfield County, Case No. 18-CA-17 22
Barnes stated he was the second rider, following at least two seconds behind Goshorn.
Barnes testified when Goshorn locked up and the van jumped forward, Barnes had room
to go around Goshorn and he was missing everything until the van hit Goshorn. Barnes
stated that while he was really close to the gravel parking lot, he did not travel off the
pavement and felt safe going around Goshorn. Appellant testified she felt the van hit her
and Goshorn before Barnes hit the mirror. Barnes submitted Exhibit B, a photo of the
collision depicting Gillespie’s van over the center lines of the road and Goshorn’s bike lying
a few feet from the van.
{¶63} Appellant’s fourth assignment of error is overruled.
{¶64} Based on the foregoing, appellant’s assignments of error are overruled.
{¶65} The judgments in favor of appellee of the Fairfield County Court of Common
Pleas are affirmed.
By Gwin, P.J.,
Baldwin, J., and
Wise, Earle E., J., concur