Sanders v. Fridd , 2013 Ohio 4338 ( 2013 )

[Cite as Sanders v. Fridd, 2013-Ohio-4338.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Amy K. Sanders, :
Plaintiff-Appellant, :
v. : No. 12AP-688
(C.P.C. No. 07CVC-07-9532)
Ryan Fridd et al., :
(REGULAR CALENDAR)
Defendants-Appellees. :
D E C I S I O N
Rendered on September 30, 2013
Granger Co., L.P.A., and Mark S. Granger; Oliver Law
Office, and Jami S. Oliver, for appellant.
Frost, Maddox & Norman Co., LPA, and Mark S. Maddox, for
appellee Ryan Fridd.
APPEAL from the Franklin County Court of Common Pleas
CONNOR, J.
{¶ 1} Plaintiff-appellant, Amy K. Sanders ("appellant"), appeals from a judgment,
pursuant to jury verdict, of the Franklin County Court of Common Pleas in favor of
defendant-appellee, Ryan Fridd ("Fridd"). Because (1) the trial court properly instructed
the jury on the law of co-worker immunity, (2) the trial court did not err in denying
appellant's motion in limine, and (3) the trial court did not abuse its discretion by
submitting Fridd's proposed interrogatories to the jury, we affirm.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} On July 19, 2007, appellant filed a complaint against Fridd, Premierfirst
Banc, L.L.C. ("Premierfirst"), and the Ohio Bureau of Workers' Compensation ("BWC").
Appellant alleged that Fridd, her former co-worker at Premierfirst, negligently caused her
No. 12AP-688 2
injury while he was engaged in horseplay disconnected from his employment, and that his
"actions were approved and ratified by * * * Premierfirst." (Complaint, ¶ 10.) Appellant
asserted that the BWC held a potential interest in the litigation as a statutory subrogor or
subrogee. Fridd answered the complaint, asserting that he was immune from appellant's
negligence claim under the laws governing co-worker immunity.
{¶ 3} The events giving rise to the complaint occurred in 2006 when appellant
was employed at Premierfirst as a senior loan officer. Fridd was appellant's direct
supervisor at Premierfirst and the general manager of the company. Tambra Owens was
also a supervisor at Premierfirst, but had less authority than Fridd. Gary Woods was the
owner and sole shareholder of Premierfirst.
{¶ 4} On February 28, 2006, appellant, Fridd, and another co-worker, Shane
Adams, were present at the Premierfirst office. Appellant stated that she was carrying a
loan package to the fax machine when Fridd jumped out of his office, "like to jump out
and scare [her], and pushed [her] with both arms." (Tr. Vol. II, 29.) Appellant fell to the
ground and sustained a serious fracture to her left wrist. Appellant stated that she was
not engaged in any form of horseplay when Fridd pushed her to the ground.
{¶ 5} Fridd testified that appellant was engaged in horseplay with Adams
immediately before the accident, and further stated that appellant was swinging her arms
like "a windmill" as she walked down the hallway toward the fax machine. (Tr. Vol. II,
169.) Although appellant stated that she had never done the windmill, Adams testified
that appellant would frequently "do [the windmill] to" employees at Premierfirst. (Tr.
Vol. II, 231-32.) Fridd stated that he put his hands out to protect himself from appellant's
windmill, ultimately causing appellant to fall backwards. Appellant applied for and
received workers' compensation benefits as a result of her injuries.
{¶ 6} The evidence demonstrated that horseplay was "an ongoing thing" at
Premierfirst; instances of horseplay occurred "a few times a week at least." (Tr. Vol. II,
230, 13.) Appellant noted that the Premierfirst employees engaged in various acts of
physical horseplay, explaining that "if we were passing each other in the hallway, you
know, the guys would kind of like body bump us. Like just run into us kind of. * * * [O]r
[appellant] could be on a phone with clients and they would come up behind [her] and
yank [her] hair * * * or bear hugging." (Tr. Vol. II, 11-12.) Appellant admitted that she
No. 12AP-688 3
engaged in some acts of horseplay, such as lowering a co-worker's chair, or "pull[ing] their
arm hair, [or] pinch[ing] them." (Tr. Vol. II, 103.) She explained that there was a hallway
near the bathrooms where "it was very common for people to wait outside the door when
personnel were going to come out of the bathroom and we jump out and scare them."
(Tr. Vol. II, 104-05.) Appellant stated that Fridd had jumped out and surprised her before
when she was coming out of the bathroom. Appellant stated that it was not common for
employees to push one another down.
{¶ 7} In contrast, Owens testified that the horseplay she witnessed at Premierfirst
included "[p]unching, slugging, pushing type things. At some points wrestling to the
ground." (Owens Depo., 15.) Although Owens told Fridd to stop engaging in horseplay,
Fridd refused to stop. Appellant testified that Fridd initiated much of the horseplay which
occurred at Premierfirst, and agreed that Fridd "allowed" horseplay "and allowed others
to engage in it." (Tr. Vol. II, 125.) No Premierfirst employee was ever disciplined for
engaging in horseplay at the office.
{¶ 8} Owens testified that she talked to Woods about the horseplay at
Premierfirst. In response to Owens' comment about the horseplay, Woods said "[l]imited,
* * * very limited things because he was in and out" of the office. (Owens Depo., 21-22.)
Owens could not remember anything that Woods specifically said about horseplay in the
office. Woods stated that no one had ever told him that horseplay was going on in the
office.
{¶ 9} Although Woods owned Premierfirst, Woods agreed that he was an
"absentee owner." (Tr. Vol. II, 210.) Woods had another full time job and rarely went to
the Premierfirst office. Owens stated that in the three years she worked at Premierfirst,
Woods had only been in the office "maybe five or six times tops." (Owens Depo., 21-22.)
{¶ 10} Woods explained that Fridd was the general manager at Premierfirst as he
"managed about everything." (Tr. Vol. II, 195.) Fridd had the authority to hire and fire
individuals, to oversee day-to-day operations, to report to payroll, to keep records of all
business transactions, and to ensure that the company was compliant with state and
federal guidelines. While Woods characterized Owens as a co-manager, he explained that
she did not have the authority to hire or fire people, and that her job duties were
essentially to assist Fridd in the execution of his managerial duties. Woods testified that
No. 12AP-688 4
he did not condone horseplay in the office, and stated that horseplay was not part of
Fridd's job description.
{¶ 11} Fridd filed a motion for summary judgment on March 16, 2009. The trial
court granted the motion, finding Fridd was entitled to immunity under R.C. 4123.741.
The court did not analyze whether Fridd was acting in the course of his employment at the
time of the accident, as it found that "R.C. 4123.741 requires that the injured employee be
in the course and scope of his/her employment, not the employee seeking immunity."
(Apr. 28, 2009 Summary Judgment Decision, 4.)
{¶ 12} This court reversed the trial court's award of summary judgment. Sanders
v. Fridd, 10th Dist. No. 09AP-596, 2010-Ohio-2321. We found the trial court's
interpretation of the co-worker immunity law incorrect, as "R.C. 4123.741 requires that
both the injured employee and the coemployee who allegedly caused the injury must have
been in the service of the employer at the time of the injury for immunity to apply." Id. at
¶ 9, citing Donnelly v. Herron, 88 Ohio St. 3d 425 (2000).
{¶ 13} On May 1, 2009, appellant voluntarily dismissed Premierfirst from the
action without prejudice. On July 30, 2010, Fridd filed a second motion for summary
judgment, asserting that he was entitled to immunity under R.C. 4123.741. On September
14, 2010, the court issued a decision and entry denying Fridd's second motion for
summary judgment, noting that genuine issues of material fact existed regarding whether
Premierfirst ratified and endorsed horseplay occurring at the office.
{¶ 14} The case proceeded to trial before a jury. At the conclusion of the trial, the
jury returned a verdict in favor of Fridd.
II. ASSIGNMENTS OF ERROR
{¶ 15} Appellant appeals, assigning the following errors:
1. THE TRIAL COURT COMMITTED REVERSIBLE ERROR
WHEN IT INSTRUCTED THE JURY THAT PLAINTIFF-
APPELLANT SANDERS COULD NOT RECOVER FROM
COWORKER DEFENDANT-APPELLEE FRIDD AS A
MATTER OF LAW IF PLAINTIFF-APPELLANT SANDERS
WAS ALSO ENTITLED TO BENEFITS UNDER THE
WORKER'S COMPENSATION STATUTE SINCE
COWORKER IMMUNITY ONLY PROTECTS DEFENDANT-
APPELLEE FRIDD IF THE JURY FINDS THAT HE WAS AN
"EMPLOYEE" IN "THE SERVICE OF" HIS EMPLOYER.
No. 12AP-688 5
2. THE TRIAL COURT COMMITTED REVERSIBLE ERROR
BY ADMITTING EVIDENCE OF OTHER ACTS OF
HORSEPLAY THAT WERE NOT HISTORICALLY OR
CAUSALLY RELATED TO ACTS GIVING RISE TO
PLAINTIFF-APPELLANT'S INJURIES.
3. BASED UPON THE TOTALITY OF THE EVIDENCE
PRESENTED AT TRIAL, THE ERRONEOUS AND
CONFLICTING JURY INSTRUCTIONS, AND THE
WORDING AND ORDER OF THE JURY
INTERROGATORIES, THE TRIAL COURT CREATED JURY
CONFUSION AND REVERSIBLE ERROR.
III. FIRST ASSIGNMENT OF ERROR—JURY INSTRUCTIONS
{¶ 16} Appellant's first assignment of error asserts the trial court erred in
instructing the jury on the law regarding co-worker immunity.
{¶ 17} Ordinarily, a trial court should give requested jury instructions if they are
correct statements of the law applicable to the facts in the case and reasonable minds
might reach the conclusions sought by the instructions. Murphy v. Carrollton Mfg. Co.,
61 Ohio St. 3d 585, 591 (1991). Jury instructions must be based on the evidence presented
in the case. "It is well established that the trial court will not instruct the jury where there
is no evidence to support an issue." Id.
{¶ 18} Trial courts have a responsibility to give all jury instructions that are
relevant and necessary for the jury to properly weigh the evidence and perform its duty as
the fact finder. State v. Comen, 50 Ohio St. 3d 206 (1990), paragraph two of the syllabus.
An instruction is proper if it adequately informs the jury of the law. State v. Conway,
10th Dist. No. 03AP-585, 2004-Ohio-1222, ¶ 24. With respect to jury instructions, it is
incumbent upon the trial court to provide the jury a plain, distinct and unambiguous
statement of the law applicable to the evidence presented by the parties to the trier of fact.
Marshall v. Gibson, 19 Ohio St. 3d 10, 12 (1985). A trial court may refuse to give an
instruction that is redundant. Bostic v. Connor, 37 Ohio St. 3d 144 (1988), paragraph two
of the syllabus.
{¶ 19} When a party challenges the jury instructions on appeal, an appellate court
considers the jury charge as a whole and determines whether the charge misled the jury in
No. 12AP-688 6
a manner that affected the complaining party's substantial rights. Kokitka v. Ford Motor
Co., 73 Ohio St. 3d 89, 93 (1995); Columbus Steel Castings Co. v. Alliance Castings Co.,
LLC, 10th Dist. No. 11AP-351, 2011-Ohio-6826, ¶ 15. The decision to give or refuse a
particular instruction is within the trial court's discretion, and an appellate court will not
disturb that decision absent an abuse of discretion. Id. at ¶ 15; Eastman v. Stanley
Works, 180 Ohio App. 3d 844, 2009-Ohio-634, ¶ 49 (10th Dist.) The trial court can be
found to have committed reversible error only where it can be found that the instructions
given misled the jury. Kokitka at 93.
{¶ 20} Appellant asserts that various aspects of the trial court's co-worker
immunity instruction were misstatements of law. The court's instruction on co-worker
immunity, as a whole, instructed as follows:
CO-WORKER IMMUNITY
As a general rule, a coworker is immune from liability for
injuries caused to another coworker while in the course of and
arising out of his employment so long as Defendant can
establish that he was an "employee" as defined by the Ohio
Workers' Compensation Act. "Employee" is defined by statute
as "every person in the service of any person, firm or private
corporation."
What is "in the service of" an employer? An employee who
causes an injury on his employer's time and premises while
engaged in horseplay, disconnected from his employment, is
not in the service of his employer and does not qualify for
statutory immunity unless his employer consents to or
acquiesces in such horseplay or if he proves that he did not
instigate the horseplay.
Defendant has the burden to prove he was "in the service of"
his employer in this case. He must establish by a
preponderance of the evidence, that his conduct arose from
and was in the course of his employment.
Defendant, Ryan Fridd, claims he is entitled to fellow
employee immunity pursuant to Ohio's Workers'
Compensation Law. Workers' compensation statutes are to be
liberally construed in favor of the employee.
No. 12AP-688 7
Under Ohio's workers' compensation law, no employee of an
employer is liable for any injury received by any other
employee of such employer in the course of and arising out of
the latter employee's employment if the injury is found to be
compensable under the workers' compensation statutes.
Thus, a party who is injured as a result of a co-employee's
negligent acts, who applied for benefits under Ohio's workers'
compensation statutes and whose injury is found to be
compensable thereunder is precluded from pursuing any
claim against such co-employee.
In order for Mr. Fridd to be entitled to immunity, his actions
must have occurred in the course of and arising out of his
employment at Premierfirst Banc, LLC. He must have been in
the service of Premierfirst Banc, LLL [sic] at the time of the
accident.
An employee's actions occur in the course of and arises out of
employment if the employee's actions followed as a natural
incident of the work and as a result of exposure occasioned by
the nature, conditions or surroundings of the employment.
An employee need not be actually performing work in order
for his actions to arise in the course of his employment. When
an employee diverts from the straight and narrow
performance of his task, the diversion is not an abandonment
of his responsibility and service to his employer unless his act
is so diverted that its very character serves the relationship of
employer and employee.
Generally, actions of an employee engaging in horseplay do
not occur in the course and arise out of his employment.
Nevertheless, where the employee is engaged in horseplay
commonly carried on by employees with the knowledge and
consent or acquiescence of the employer, his actions are
considered to occur in the course of and arise out of his
employment and he is entitled to immunity.
If you find that [appellant's] injuries were proximately caused
by horseplay that was commonly carried on by Premierfirst
employees with the knowledge and consent or acquiescence of
Premierfirst Banc, LLC, then you must find for the Defendant
Ryan Fridd.
No. 12AP-688 8
A corporation cannot see or know anything except by the eyes
and intelligence of its officers. A corporation can act only
through its officers and agents, and the knowledge of the
officers of a corporation is at once the knowledge of the
corporation.
If you find from the evidence that Gary Woods, the owner of
Premierfirst Banc, LLC, assigned all of the managerial duties
with respect to the corporation to his General Manager, Ryan
Fridd the knowledge of Ryan Fridd with respect to
"horseplay" is the knowledge of Premierfirst Banc, LLC.
Similarly, if you find that Mr. Fridd, pursuant to the authority
granted by Mr. Woods, hired Tamara Owens as a manager.
Then, Ms. Owens' knowledge with respect to horseplay is the
knowledge of Premierfirst Banc, LLC.
An injury resulting from horseplay by fellow employees,
instigated and engaged in by [appellant] while on duty, is not
caused by or connected with [appellant's] employment within
the purview of the Workmen's Compensation Act.
You are instructed that if Amy Sanders was engaged in
horseplay at the time of her injury and if horseplay was not
permitted, consented to or acquiesced by Premierfirst Banc,
LLC, she would not have been eligible to receive workers'
compensation benefits.
On the other hand, if Amy Sanders was engaged in horseplay
at the time of her injury and if horseplay was permitted,
consented to or acquiesced by Premierfirst Banc, LLC, she
would be eligible to receive workers' compensation benefits.
(Jury Instructions, 7-10.)
{¶ 21} Viewing the jury instruction as a whole, it is a correct statement of Ohio co-
worker immunity law. R.C. 4123.741 provides that:
No employee of any employer, as defined in division (B) of
section 4123.01 of the Revised Code, shall be liable to respond
in damages at common law or by statute for any injury * * *
received * * * by any other employee of such employer in the
course of and arising out of the latter employee's employment,
* * * on the condition that such injury, * * * is found to be
compensable under sections 4123.01 to 4123.94, inclusive, of
the Revised Code.
No. 12AP-688 9
{¶ 22} An "employee" under the workers' compensation statutes means "[e]very
person in the service of any person, firm, or private corporation." R.C. 4123.01(A)(1)(b).
Thus, a co-employee seeking immunity must be "in the service of" their employer at the
time the injury to the other employee occurs. Donnelly at 428.
{¶ 23} An employee is in the service of their employer, and entitled to immunity
under R.C. 4123.741, "only when the actionable conduct occurs 'in the course of, and
arising out of,' the coemployee's employment, within the meaning of that phrase in the
Workers' Compensation Act." Id. at syllabus. "The 'in the course of' requirement
addresses the time, place, and circumstances of the injury, and the 'arising out of'
requirement addresses the causal connection between the injury and the injured person's
employment." Maynard v. H.A.M. Landscaping, Inc., 166 Ohio App. 3d 76, 2006-Ohio-
1723, ¶ 22 (8th Dist.), citing Fisher v. Mayfield, 49 Ohio St. 3d 275 (1990).
{¶ 24} "A party who is injured as a result of a co-employee's negligent acts, who
applied for benefits under Ohio's workers' compensation statutes, and whose injury is
found to be compensable thereunder is precluded from pursuing any additional common-
law or statutory remedy against such co-employee." Kaiser v. Strall, 5 Ohio St. 3d 91
(1983), syllabus. Thus, where the "Bureau of Workers' Compensation [finds that an]
appellee's injuries were sustained in the course of her employment and paid her claim,"
the appellee is "precluded from pursuing a common-law remedy of negligence against her
fellow employee." Kelbey v. Hurley, 94 Ohio App. 3d 409, 414 (3d Dist.1994). See also
Kaiser at 94 (noting that "[a]s the commission is the body cloaked with exclusive
authority to compensate workers for work-related injuries, its determination, * * * that an
injury was occasioned during the course of the claimant's employment must * * * be
honored").
{¶ 25} Kaiser's syllabus holding does not imply that, once an injured employee
files for and receives workers' compensation, the employee is estopped from filing any
other action on the claim. The syllabus of Kaiser makes clear that "in order for the party
who has applied for and received workers' compensation benefits to be precluded from
seeking common-law remedies against the tortfeasor, he must have been “injured as a
result of a co- employee's negligent acts.' " (Emphasis sic.) Caygill v. Jablonski, 92 Ohio
No. 12AP-688 10
App.3d 31, 34 (6th Dist.1994) (Caygill II). Thus, an injured employee "is not forced, by
virtue of R.C. 4123.741, to elect between the remedies available in a civil action and those
available under the workers' compensation statute if the tortfeasor is not a fellow
employee." Id. See also Jones v. VIP Dev. Co., 15 Ohio St. 3d 90, 99 (1984) (finding that
R.C. 4123.741 does not preclude an employee from enforcing his common law remedies
against his co-employee for "injuries which are received by a worker due to intentional
misconduct"); Walter v. Hartley, 2d Dist. No. 97 CA 55 (Mar. 27, 1998), quoting
Blankenship v. Cincinnati Milacron Chemicals, Inc., 69 Ohio St. 2d 608, 613 (1982) (R.C.
4123.741 does not preclude actions on intentional tort claims because 'the substance of an
intentional tort claim is not an injury received 'in the course of and arising out of the
[fellow] employee's employment' ").
{¶ 26} The "general rule" is "that no compensation is recoverable under the
Workmen's Compensation Acts for injuries sustained through horseplay or fooling which
was done independently of, and disconnected from, the performance of any duty of the
employment." Indus. Comm. v. Bankes, 127 Ohio St. 517, 522 (1934). Exceptions to the
general rule exist where "the employee who is injured through horseplay or fooling by
other employees took no part in the fooling, but was attending to his duties," and "where
[the employee] is injured by horseplay commonly carried on by the employees with the
knowledge and consent or acquiescence of the employer." Id. See also Kelley v. Ryan,
12th Dist. No. CA2009-07-104, 2010-Ohio-1514, ¶ 8.
{¶ 27} Thus, "an employee who causes an injury on his employer's time and
premises while engaged in 'horseplay,' disconnected from his employment, is not 'in the
service of' his employer and does not qualify for statutory immunity under R.C. 4123.741,
unless his employer consents to or acquiesces in such horseplay." Caygill v. Jablonski, 78
Ohio App. 3d 807, 818 (6th Dist.1992) ("Caygill I"). In Caygill I, the evidence established
that the appellant, Caygill, and defendant, Jablonski, were co-employees working for the
City of Sylvania. Near the end of a work day, Jablonski became involved in a pick-up
game of baseball with other employees; Caygill was not involved in the game. Caygill was
injured when a shovel Jablonski was using as a bat slipped out of Jablonski's hand during
his turn at bat. Caygill applied for and received workers' compensation benefits for his
No. 12AP-688 11
injuries and subsequently filed a complaint against Jablonski based on common law
negligence. Jablonski asserted that R.C. 4123.741 barred Caygill's negligence action.
{¶ 28} The evidence in Caygill I established that Jablonski and "others had played
the game on several occasions, that his employer knew of such, that one supervisor had
played in the past, and that no supervisor forbade the game." Id. at 818. On such
evidence the appellate court, reviewing a summary judgment award, found a genuine
issue of material fact regarding whether the employer had consented to or acquiesced in
the playing of the game, "and, therefore, whether [Jablonski], at the time of injury, was an
'employee' entitled to immunity under R.C. 4123.741." Id.
{¶ 29} Appellant initially asserts that the court's instruction, providing that "a
party who is injured as a result of a co-employee's negligent acts, who applied for benefits
under Ohio's workers' compensation statutes and whose injury is found to be
compensable thereunder is precluded from pursuing any claim against such co-
employee," is a "confusing misstatement of Ohio law." (Appellant's brief, 3.) Appellant's
contention lacks merit. This portion of the jury instruction is nearly a verbatim recitation
of the Kaiser syllabus holding.
{¶ 30} Appellant next alleges that the court's instruction regarding imputed
knowledge was improper. Appellant's counsel objected to the proposed imputed
knowledge instruction at trial, asserting that it was "not appropriate and not applicable to
the situation." (Tr. Vol. IV, 22.)
{¶ 31} The instruction was a correct statement of law. "Ohio has long recognized
'[a] corporation cannot see or know anything except by the eyes and intelligence of its
officers.' " Orrenmaa v. CTI Audio, Inc., 11th Dist. No. 2007-A-0088, 2008-Ohio-4299,
¶ 110, quoting Orme v. Baker, 74 Ohio St. 337 (1906). "A corporation can act only
through its officer and agents, and the knowledge of the officers of a corporation is at once
the knowledge of the corporation." Id., citing Arcanum Natl. Bank v. Hessler, 69 Ohio
St.2d 549, 557 (1982).
{¶ 32} The instruction was also appropriate given the evidence presented at trial.
The evidence demonstrated that Premierfirst was a small business with Woods as the sole
owner and shareholder. Woods agreed that even he "didn't have a title at Premierfirst."
(Tr. Vol. II, 210.) Woods was not involved in the day-to-day operation of the business;
No. 12AP-688 12
Fridd understood that Woods had "left the management of the business to" him. (Tr. Vol.
II, 161.) Woods explained that Fridd was "[t]he only manager" at Premierfirst and agreed
that Fridd was "the head of the food chain as far as the people on the job every day." (Tr.
Vol. II, 210.) As general manager, Fridd "had authority to implement the policies
concerning horseplay at Premierfirst," and Woods agreed that he left it "up to Ryan Fridd
to determine what was appropriate when referring to horseplay at Premierfirst." (Tr. Vol.
II, 214.)
{¶ 33} Although Fridd was not a corporate officer, Woods delegated complete
managerial control over the office to Fridd. Accordingly, it was not error for the trial court
to instruct the jury that Fridd's knowledge regarding the horseplay could be imputed to
Premierfirst. See Orme at 347-55 (although the cashier of a bank was also on the board of
directors, the court considered the fact that the board of directors "abandoned all
supervision and control" over the bank and shifted "all, or at least a large portion of its
authority and responsibility to [manage the bank to] the shoulders of the cashier,"
relevant to its holding that the cashier's knowledge of the insolvent condition of the bank
should be imputed to the board of directors); Kornhauser v. Natl. Sur. Co., 114 Ohio St.
24 (1926), syllabus (noting that "[o]ne who has exclusive possession and control of a
position in a private corporation occupies such position"); London & Lancashire Indem.
Co. of Am. v. Fairbanks Steam Shovel Co., 112 Ohio St. 136, 150 (1925). Moreover,
Woods specifically stated that Fridd had the authority to implement policies concerning
horseplay at Premierfirst. See Hallowell v. Cty. of Athens, 4th Dist. No. 03CA29, 2004-
Ohio-4257, ¶ 11 (noting that "[a]n employee's knowledge is imputed to his employer only
if the employee obtained the knowledge while acting within the scope of his
employment").
{¶ 34} Appellant asserts that the imputed knowledge instruction was improper as
it drew "on the rationale and commensurate presumptions involved with determining the
respondeat superior liability of a corporation." (Appellant's brief, 5.) Appellant
complains that the instruction was improper as the court in Donnelly "specifically
rejected the respondeat superior (scope of employment) test for determining co-worker
immunity." (Appellant's brief, 6.)
No. 12AP-688 13
{¶ 35} Appellant's contention regarding the respondeat superior doctrine is
misplaced. The respondeat superior doctrine states generally that an employer or
principal is vicariously liable for the torts of its employees or agents. Faieta v. World
Harvest Church, 10th Dist. No. 08AP-527, 2008-Ohio-6959, ¶ 54. The imputed
knowledge doctrine, in contrast, simply allows for the knowledge of certain individuals in
a corporation to be imputed to the corporation, a creature of law which cannot itself hold
any knowledge independent from the individuals who comprise the corporation.
{¶ 36} Appellant asserts that the imputed knowledge instruction was also
improper because there was no evidence that Woods actually knew about the horseplay
occurring at Premierfirst. However, the evidence in the record demonstrated that Owens
informed Woods about the horseplay. Although Woods testified that no one had ever told
him about the horseplay, the credibility of Woods' and Owens' statements was for the
jury's determination.
{¶ 37} Lastly, appellant asserts that the final two paragraphs of the co-worker
immunity instruction were misstatements of the law. Appellant's counsel objected to the
two paragraphs, noting that appellant had filed the following proposed special jury
instruction:
An injury resulting from horseplay by fellow employees,
instigated and engaged in by [appellant] while on duty, is not
caused by or connected with [appellant's] employment within
the purview of the Workmen's Compensation Act. Ind. Comm.
V. Bankes (1934), 127 Ohio St. 517, syllabus, paragraph 3. It is
undisputed that [appellant], Amy Sanders, received benefits
from the Ohio Bureau of Workers' Compensation for injuries
she sustained on February 28, 2006. Therefore, you are
instructed that Amy Sanders did not instigate the horseplay
that led to her injuries sustained in February 28, 2006.
(Appellant's Special Jury Instruction No. 1.)
{¶ 38} The court refused to give appellant's proposed instruction, stating it would
not "instruct as a matter of law that [appellant] did not engage in horseplay." (Tr. Vol. IV,
24.) The evidence did not support appellant's proposed instruction. Although appellant
did receive workers' compensation benefits as a result of her injury, whether she
instigated or was engaged in horseplay at the time of her injury was a disputed fact.
No. 12AP-688 14
{¶ 39} Appellant asserts that the final paragraphs of the instructions were contrary
to the holding in Bankes, that an injury resulting from "sportive play by fellow employees,
instigated and engaged in by the injured employee while on duty, is not caused by or
connected with the workman's employment within the purview of the Workmen's
Compensation Act." Id. at paragraph three of the syllabus. Appellant asserts that the last
two paragraphs of the instructions are error, as they simply use the word "engaged"
instead of the words "instigated and engaged," as the Bankes syllabus required. The third
to last paragraph in the jury instructions on co-worker immunity properly instructed the
jury that an injury resulting from horseplay "instigated and engaged in by [appellant]
while on duty" would not be connected with appellant's employment. (Jury Instructions,
10.) Accordingly, the absence of the word "instigated" from the final two paragraphs of
the instructions did not violate appellant's substantial rights, as the third to last paragraph
correctly included the words instigated and engaged.
{¶ 40} Appellant further asserts that the final paragraphs of the co-worker
immunity instruction did not allow the jury to consider whether appellant had or had not
instigated the horseplay. The determinative issue in the case, however, was whether
Fridd was immune from liability. Accordingly, the jury never had to consider whether
appellant instigated or engaged in horseplay, as their focus was on Fridd's conduct.
{¶ 41} Based on the foregoing, appellant's first assignment of error is overruled.
IV. SECOND ASSIGNMENT OF ERROR—PRIOR ACTS
{¶ 42} Appellant's second assignment of error asserts the trial court erred by
admitting evidence of prior acts of horseplay which were not related to the February 28,
2006 injury.
{¶ 43} On the day before trial, appellant's counsel made a motion in limine asking
the court to "not allow evidence of prior acts" of horseplay which did not "have anything
to do with the events that led up to this particular incident." (Tr. Vol. I., 6.) Fridd's
counsel asserted that evidence of other acts of horseplay were necessary to demonstrate
that Premierfirst had consented to or acquiesced in the horseplay which ultimately led to
appellant's injuries. While appellant's counsel agreed that "prior conduct regarding
pushing employees or waving arms as in a windmill fashion" was admissible, appellant's
counsel asserted that any other acts of general horseplay were not admissible. (Tr. Vol. I,
No. 12AP-688 15
8.) The court denied the motion, noting that Fridd "ha[d] a right to show
circumstantially; in other words, with other activity that was ongoing throughout the
history of the organization, that this type of activity was, * * * ratified or endorsed, that is,
the horseplay." (Tr. Vol. I, 10-11.) Appellant's counsel's objected occasionally during the
trial to evidence of prior acts of horseplay, and the court overruled appellant's objections
by citing to its earlier ruling on the admissibility of such evidence.
{¶ 44} A motion in limine is a request " 'that the court limit or exclude use of
evidence which the movant believes to be improper, and is made in advance of the actual
presentation of the evidence to the trier of fact, usually prior to trial.' " Gordon v. Ohio
State Univ., 10th Dist. No. 10AP-1058, 2011-Ohio-5057, ¶ 82, quoting State v. Winston, 71
Ohio App. 3d 154, 158 (2d Dist.1991). Although appellant asserts that she did not make a
motion in limine because she "did not file a motion in limine, [and] instead made an
objection before the court on the record," appellant's verbal request to exclude the
evidence of prior acts of horseplay, made prior to trial, was a motion in limine.
(Appellant's Reply brief, 12-13.) Compare State v. Deans, 10th Dist. No. 98AP-1463
(Sept. 30, 1999) (noting that the appellant "made what was essentially an oral motion in
limine to preclude the state from cross-examining Detective Eberhart" on certain
matters). (Emphasis sic.)
{¶ 45} "[A] motion in limine is a preliminary ruling which must be renewed at trial
or the argument made therein is waived for purposes of appeal." State v. Smith, 7th Dist.
No. 11 MA 120, 2013-Ohio-756, ¶ 128. " 'The motion asks the court to exclude the
evidence unless and until the court is first shown that the material is relevant and
proper.' " Gordon at ¶ 82, quoting Winston. Thus, because a trial court's decision on a
motion in limine is a ruling to admit or exclude evidence, our standard of review on
appeal is whether the trial court committed an abuse of discretion that amounted to
prejudicial error. Id.
{¶ 46} Appellant asserts that it was error for the trial court to allow evidence of
general acts of horseplay into the record because "every Ohio case that has ever dealt with
the issue of co-worker immunity set forth in R.C. 4123.741 has focused only on the act that
led to injury." (Appellant's brief, 12.) We agree that, for purposes of determining whether
a co-worker is entitled to immunity under R.C. 4123.741, the relevant inquiry is whether
No. 12AP-688 16
the co-worker's injury causing conduct occurred in the course of and arising out of the co-
worker's employment.
{¶ 47} However, in co-worker immunity cases involving horseplay, the relevant
inquiry becomes whether the employer consented to or acquiesced in the horseplay,
thereby rendering the horseplay in the course of the co-worker's employment. In Caygill
I, the court found a genuine issue of material fact regarding the employer's consent or
acquiescence to the baseball game where the evidence established that Jablonski and
others "had played the game on several occasions." Id. at 818. Thus, in R.C. 4123.741
cases involving horseplay, prior acts of horseplay are relevant to establish the employer's
consent or acquiescence.
{¶ 48} Appellant concedes that evidence of prior similar acts such as pushing or
surprise attacks were relevant and admissible, but asserts the trial court erred by
admitting other dissimilar acts of horseplay. Appellant, Fridd, Adams, and Owens all
testified that various acts of horseplay occurred at Premierfirst, including body bumps,
punching, wrestling, pulling hair, pinching, and bear hugging, as well as pushing, doing
the windmill, and jumping out to scare other employees. The dissimilar acts of horseplay
in the instant case were relevant, as they demonstrated the extent of Premierfirst's
acquiescence to acts of horseplay and provided the jury with background information
regarding the atmosphere at Premierfirst. Compare State v. Morris, 132 Ohio St. 3d 337,
2012-Ohio-2407, ¶ 13, quoting State v. Curry, 43 Ohio St. 2d 66, 73 (1975) (observing that
under Evid.R. 404(B) "the admission of certain other-acts evidence" is allowed where the
"other acts 'form part of the immediate background of the alleged act which forms the
foundation of the crime charged in the indictment' and are 'inextricably related' to the
crime"). Moreover, appellant has failed to explain how the evidence of the dissimilar acts
of horseplay prejudiced her case. The trial court properly admitted all the evidence
regarding prior acts of horseplay.
{¶ 49} Based on the foregoing, appellant's second assignment of error is overruled.
V. THIRD ASSIGNMENT OF ERROR—TOTALITY OF THE EVIDENCE
{¶ 50} Appellant's third assignment of error asserts that the totality of the evidence
presented at trial, coupled with the conflicting jury instructions and the wording and
order of the jury interrogatories, created jury confusion and reversible error. Under this
No. 12AP-688 17
assignment of error, appellant expressly argues the merits of the two previous
assignments of error. Appellant's contentions lack merit for the reasons stated in the
preceding paragraphs.
{¶ 51} Appellant also asserts that the interrogatories provided to the jury were
wrong, misleading, and confusing. Both appellant and Fridd submitted proposed jury
interrogatories to the court. Appellant's proposed interrogatories asked the jury if Fridd's
negligence was a proximate cause of appellant's injury, whether Fridd established that he
was entitled to immunity, and what amount the jury should award as damages. The court
ultimately provided the jury with Fridd's proposed interrogatories, which similarly asked
the jury to determine whether Fridd was immune, whether Fridd was negligent, and what
damages should be awarded.
{¶ 52} Civ.R. 49(B) allows for the use of interrogatories in conjunction with the
general verdict. The rule provides, in pertinent part, that:
The court shall submit written interrogatories to the jury,
together with appropriate forms for a general verdict, upon
request of any party prior to the commencement of argument.
Counsel shall submit the proposed interrogatories to the
court and to opposing counsel at such time. The court shall
inform counsel of its proposed action upon the requests prior
to their arguments to the jury, but the interrogatories shall
be submitted to the jury in the form that the court approves.
The interrogatories may be directed to one or more
determinative issues whether issues of fact or mixed issues of
fact and law.
{¶ 53} Civ.R. 49(B) "does not require that the ' "* * * trial judge [act as] a mere
conduit who must submit all interrogatories counsel may propose. Authority is still vested
in the judge to control the substance and form of the questions." ' " Ramage v. Cent. Ohio
Emergency Serv., Inc., 64 Ohio St. 3d 97, 107 (1992), quoting Ragone v. Vitali & Beltrami,
Jr., Inc., 42 Ohio St. 2d 161, 165-66 (1975). A trial court also retains the discretion to reject
submitted interrogatories where the proposed interrogatories are ambiguous, confusing,
redundant, or otherwise legally objectionable. Id. at 107-08.
{¶ 54} "Proper jury interrogatories must address determinative issues and must be
based upon the evidence presented." Id. at 107. "The essential purpose to be served by
interrogatories is to test the correctness of a general verdict by eliciting from the jury its
No. 12AP-688 18
assessment of the determinative issues presented by a given controversy in the context of
evidence presented at trial." Cincinnati Riverfront Coliseum, Inc. v. McNulty Co., 28
Ohio St. 3d 333, 336-37 (1986), citing Davison v. Flowers, 123 Ohio St. 89 (1930). See
also Reeves v. Healy, 192 Ohio App. 3d 769, 2011-Ohio-1487 (10th Dist.).
{¶ 55} The first interrogatory proposed by Fridd, and submitted to the jury, asked
the following question: "Did the Defendant prove by a preponderance of the evidence that
horseplay commonly carried on by employees of Premierfirst Banc, LLC, with the
knowledge and consent or acquiescence of Premierfirst Banc, LLC." (Jury Interrogatory,
1.) The court explained that it was providing Fridd's proposed interrogatory to the jury as
it found that the "primary issue is whether or not horseplay was commonly carried on by
employees at Premierfirst Banc with the knowledge and consent or acquiescence of
Premierfirst Banc. * * * That's * * * the very first things they have to figure out." (Tr. Vol.
IV, 43.) The jury answered the first interrogatory affirmatively and entered a general
verdict in Fridd's favor.
{¶ 56} Pursuant to Caygill I and Bankes, the first interrogatory addressed the
determinative issue in the case regarding whether Premierfirst consented or acquiesced to
horseplay occurring at Premierfirst. The jury's affirmative answer to the interrogatory
evidenced the jury's determination that Fridd was entitled to immunity, as his horseplay
conduct occurred in the course of his employment. Appellant asserts the interrogatory is
confusing. Although the interrogatory could have been worded differently, the
interrogatory was not confusing or misleading, as it clearly asked the jury to determine
whether Premierfirst had consented to or acquiesced in horseplay occurring between
Premierfirst employees.
{¶ 57} Appellant's interrogatories were largely redundant of Fridd's
interrogatories. As such, the trial court did not abuse its discretion in rejecting appellant
's proposed interrogatories.
{¶ 58} Appellant asserts that the jury's question to the court during deliberations
demonstrates that the jury was confused. The jury submitted the following question to
the court during deliberations: "Do we start our deliberation with Interrogatory No. 1,
both parties refer to immunity as the first question we answer." (Tr. Vol. IV, 107.) The
court answered the question by simply writing "yes" on the question and returning it to
No. 12AP-688 19
the jury. We do not share in appellant's concern over the jury's question. The question
simply asked if the jurors were to start with the first interrogatory, and the trial court
correctly answered yes.
{¶ 59} Appellant's assigned error asserts that the totality of the evidence presented
at trial does not support the jury's verdict. The evidence at trial demonstrated that Fridd
readily permitted horseplay to occur at Premierfirst. Owens informed Woods about the
horseplay occurring at Premierfirst and Woods took no action in response to such
information. The evidence further demonstrated that appellant had sought and received
workers' compensation benefits for her injury. Accordingly, the evidence established that
Premierfirst consented to or acquiesced in horseplay occurring at the office, rendering
Fridd's horseplay within the course of his employment and entitling Fridd to immunity
under R.C. 4123.741. The totality of the evidence supported the jury's verdict.
{¶ 60} Based on the foregoing, appellant's third assignment of error is overruled
VI. CONCLUSION
{¶ 61} Having overruled appellant's three assignments of error, we affirm the
judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
KLATT, P.J., and DORRIAN, J., concur.
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