Drake v. Caterpillar Tractor Co. , 15 Ohio St. 3d 346 ( 1984 )

Per Curiam.

The issue presented by this appeal is whether the comment in closing argument which referred to evidence admitted solely for impeachment purposes as if the evidence were admitted on the substantive issue in the case constitutes reversible error. We hold that, under the circumstances presented herein, a new trial is warranted.

The general rule is that counsel in closing argument may comment upon evidence adduced at trial. However, it is improper for counsel to comment on evidence which was excluded or declared inadmissible by the trial court or otherwise make statements which are intended to get evidence before the jury which counsel was not entitled to have the jury consider. In the context of misconduct of counsel in opening statement, this court stated in Maggio v. Cleveland (1949), 151 Ohio St. 136 [38 O.O. 578], at paragraph two of the syllabus:

“Counsel should be accorded latitude by the trial court in making his opening statement, but when he deliberately attempts to influence and sway the jury by a recital of matters foreign to the case, which matters he knows or ought to know cannot be shown by competent or admissible evidence, or when he makes a statement through accident, inadvertence or misconception which is improper and patently harmful to the opposing side, it may constitute the basis for ordering a new trial or for the reversal by a reviewing court of a judgment favorable to the party represented by such counsel.”

In our view, the holding in Maggio, supra, applies equally to closing arguments. See, also, Snyder v. Stanford (1968), 15 Ohio St. 2d 31, 34-35 [44 O.O.2d 18]; 53 Ohio Jurisprudence 2d (1962) 180, Trial, Section 266; 75 American Jurisprudence 2d (1975) 331-332, Trial, Section 253. Cf. State v. Liberatore (1982), 69 Ohio St. 2d 583 [23 O.O.3d 489]; State v. Smith (1984), 14 Ohio St. 3d 13; and State v. Jenkins (1984), 15 Ohio St. 3d 164. Furthermore, DR 7-106 of the Code of Professional Responsibility states in part:

“(C) In appearing in his professional capacity before a tribunal, a lawyer shall not:

“(1) State or allude to any matter that he has no reasonable basis to believe is relevant to the case or that will not be supported by admissible evidence.”

In the case at bar, the trial court made it abundantly clear that evidence of the tractor’s safety history was not admissible to establish the absence of a design defect.¹ Nevertheless, appellant’s counsel referred to the tractor’s safety history as if it had some impact on whether the tractor was defectively designed. Although the safety history was permitted to be a subject of cross-examination for impeachment purposes only,² we agree with the court of appeals that appellant’s counsel’s closing argument is not directed at the credibility of any of appellees’ witnesses but rather at the central issue in the case, i.e., whether there was a design defect that caused appellee’s injuries. For that reason, we find such closing argument to be improper.

Moreover, the trial court merely “noted” appellees’ objection to the improper statements and failed to give an immediate curative instruction. Given the fact that the jury may well have utilized evidence in reaching its verdict that was inadmissible on whether the product was defectively designed, we are not satisfied to a sufficient degree that the jury’s verdict would have been the same in spite of the improper closing argument. As we stated in O’Brien v. Angley (1980), 63 Ohio St. 2d 159, 164-165 [17 O.O.3d 98], quoting from Hallworth v. Republic Steel Corp. (1950), 153 Ohio St. 349 [41 O.O. 341], paragraph three of the syllabus:

“ ‘Generally, in order to find that substantial justice has been done to an appellant so as to prevent reversal of a judgment for errors occurring at the trial, the reviewing court must not only weigh the prejudicial effect of those errors but also determine that, if those errors had not occurred, the jury or other trier of the facts would probably have made the same decision.’ ”

We agree with the conclusion reached by the court of appeals that, “[i]n light of the complex, technical, and voluminous nature of the evidence and the likewise, complex instructions given at trial, the lack of prior accidents consideration by the jury may well have been utilized in rejecting * * * [appellees’] theory of liability.”

Accordingly, the judgment of the court of appeals is affirmed.

Judgment affirmed.

Celebrezze, C.J., Sweeney, Locher, C. Brown and J. P. Celebrezze, JJ., concur. W. Brown and Holmes, JJ., concur in judgment.

1 Appellant does not challenge the trial court’s ruling in this regard. We will assume, for purposes of this decision, as did the court of appeals, the correctness of tnat ruling.

2 Evid. R. 105.