Gollihue v. Consol. Rail Corp. , 120 Ohio App. 3d 378 ( 1997 )

I respectfully dissent from the majority opinion because I find that the trial court erred in admitting evidence of subsequent remedial measures that unfairly influenced and misled the jury into determining that appellant was negligent based upon highly prejudicial and inadmissible evidence.

Furthermore, contrary to the majority's casual dismissal of the issue on the basis of waiver, and despite the appellees' insistence that appellant failed to object to the introduction of the evidence, I find in the record that appellant's attorney did object in open court to admission of the evidence, albeit he did not actually speak the words "I object." As noted by the majority, citing State v. Grubb (1986), 28 Ohio St.3d 199, 28 OBR 285, 503 N.E.2d 142, an error is preserved on the record for appellate review by a "ruling on the record when the issue is actually reached and the context is developed at trial." Id. at 203, 28 OBR at 289-290, 503 N.E.2d at 146. Thus, the error was preserved, and "called to the court's attention" at the appropriate time, as evidenced by the discussion recorded in the transcript at page 363, and the court's consequent ruling: "I'm going to allow it in." See State v. Williams (1977), 51 Ohio St.2d 112,

5 O.O.3d 98, 364 N.E.2d 1364, paragraph one of the syllabus. Accordingly, I do not find, as did the majority, that appellant waived its right to appeal this error.

In its first assignment of error, appellant contends that the court's admission of evidence of subsequent remedial measures violated the prohibition against such evidence in Evid.R. 407. This rule prohibits the introduction of evidence of subsequent remedial measures to prove negligence or culpable conduct.McFarland v. Bruno Mach. Corp. (1994), 68 Ohio St.3d 305,626 N.E.2d 659, syllabus. As noted by the Ohio Supreme Court, Evid.R. 407 declares this form of relevant evidence inadmissible for certain policy reasons: (1) the subsequent remedial measure is not an admission of negligence, and (2) there is a policy of encouraging remedial measures to prevent further injuries from occurring under the same circumstances. See Staff Notes to Evid.R. 407. Thus, the rule prohibits evidence of subsequent remedial measures where the evidence is introduced to support the allegation of negligence or culpable conduct on the part of the defendant. Such evidence is admissible under the ruleonly when offered to show ownership, control, or feasibility of precautionary measures where these issues are controverted in the case, or for impeachment.

Generally, if a remedial measure was taken by a third party, rather than the actual defendant, the policies against introduction of evidence of the remedial measure are not implicated, and the rule of exclusion may not be not applicable. See, e.g., Mehojah v. Drummond (C.A.10, 1995), 56 F.3d 1213;Brentson v. Chappell (1990), 66 Ohio App.3d 83, 88,583 N.E.2d 434, 437; Schneider v. First Natl. Supermarkets (Dec. 5, 1996), Cuyahoga App. No. 70226, unreported, 1996 WL 695631; Keller v.Bacevice (Nov. 30, 1994), Lorain App. No. 94CA005812, unreported, 1994 WL 666992; Smith v. Raymond Corp. (Oct. 25, 1990), Cuyahoga App. No. 57670, unreported, 1990 WL 161996. (Even though such evidence may be relevant, and otherwise admissible, it is still subject to exclusion under Evid.R. 403 if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. White v. OhioDept. of Transp. [1990], 56 Ohio St.3d 39, 46, 564 N.E.2d 462,468-469.)

However, I believe that the introduction of the evidence of the crossing's selection by PUCO for an upgrade following the accident was unfairly prejudicial to appellant, and that Evid.R. 407 is applicable. In this case it was clear from the evidence on the record that appellant was an active participant, along with PUCO, in determining which crossings were unreasonably hazardous and therefore should have been protected by flashing lights and automatic gates. Because appellant was involved in the selection process, the subsequent measures taken by PUCO could certainly have been understood by the jury as an action by appellant to upgrade the crossing specifically as a result of appellees' accident. Therefore, given the meager evidence that the crossing at issue was dangerous and the evidence of the truck driver's own negligence in proceeding across the tracks in the path of the train, I find that the evidence of the subsequent remedial measures was unfairly prejudicial, and should therefore have been declared inadmissible by the trial court. "To admit such testimony would tend to distract the mind of the jury from the real issue and create a prejudice against the defendant." Rohr v. Scioto Valley Traction Co. (1920),12 Ohio App. 275, 278.

Moreover, I do not find that appellant opened the door for admission of this unfairly prejudicial evidence by discussing its customary role in selection of crossing upgrades. As stated by appellant, this evidence was elicited for the purpose of demonstrating to the jury that appellant was involved in ongoing evaluation of the safety of its railroad crossings, and in fact, had an actual vote in the PUCO's upgrade process, and not that it had considered and disregarded the condition of the specific crossing at issue. Furthermore, the evidence offered was very general in nature, and was used only to rebut appellees' repeated assertions that appellant does nothing at all to assess the safety of its crossings. This was the very essence of appellant's defense. The trial court's erroneous ruling, to admit highly prejudicial evidence of PUCO's postaccident remedial recommendation and evaluation of the railroad crossing at issue (a decision that was reached, as noted, through cooperation with appellant itself) could have served only to inflame and mislead the jury. Moreover, the court's decision, in effect, denied appellant the right to present its defense, thus denying the railroad a fair trial. Accordingly, I find the introduction of the evidence a flagrant violation of Ohio law regarding the admission of evidence of subsequent remedial measures. For the foregoing reasons, appellant should be granted a new trial.