DocketNumber: No. 85271.
Citation Numbers: 2005 Ohio 4290
Judges: KENNETH A. ROCCO, J.:
Filed Date: 8/18/2005
Status: Non-Precedential
Modified Date: 4/18/2021
{¶ 16} I respectfully dissent on the first assignment of error because I disagree with the majority's application of Civil Rule 49(B).
{¶ 17} Civ.R. 49(B) explicitly mandates the submission of interrogatories: "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." (Emphasis added.)
{¶ 18} In Werner v. McAbier, (Jan. 13, 2000), Cuyahoga App. Nos. 75197 75233, 2000 Ohio App. LEXIS 73, this court reaffirmed the necessity of following Civ.R. 49(B) and the use of proper interrogatories whenever possible. Id. at *10. Encouraging the use of interrogatories serves important public policy goals. As the Supreme Court of Ohio previously explained, interrogatories assist in "facilitating appellate review of jury damage awards. With such separate findings by the jury being available, not only may counsel for the litigants more accurately determine the need for appeal, but the review process on appeal would be enhanced." Fantozzi, supra, at 617.
{¶ 19} In Werner, supra, this court held the trial court's failure to submit the proposed interrogatory was prejudicial. Without the damage allocation provided by the interrogatory, it was impossible to determine what damages the jury award included. Similarly, in the case at bar, there is no damage allocation; therefore, it is impossible to determine with certainty which damages the jury awarded. It is this very type of situationWerner sought to prevent. Discussing the purpose of interrogatories, this court explained: "Interrogatories test the correctness of the jury's verdict by ascertaining the jury's assessment of the evidence presented at trial." Werner, supra at *9-10, citing Srail v. RJF Int'l Corp. (1998),
{¶ 21} In the case at bar, no interrogatory at all was submitted to the jury; only a jury instruction on the damage elements was given to the jury. Fantozzi, therefore, is not persuasive authority in this case.
{¶ 22} Additionally, the mere fact that the jury was instructed on damage elements does not replace the specific inquiry the proposed interrogatory would have achieved. In Yorkv. Mayfield, (1999),
{¶ 23} Although Fantozzi did not address whether the trial court is required to submit a requested interrogatory, the Ohio Supreme Court did rule on this issue in Cincinnati RiverfrontColiseum v. McNulty Co. (1986),
{¶ 24} This court has previously provided a criterion for determining when interrogatories are "proper." In Werner, we explained: "Interrogatories are proper if they raise determinative issues." Werner, supra at *10 citing Costa v.Hardee's Food Sys., 1998 Ohio App. LEXIS 137, Warren App. No. CA97-03-022. See Ramage v. Central Ohio Emergency Serv.,Inc. (1992),
{¶ 25} The majority, however, believes that the trial court's rejection was nonetheless proper because appellant did not present any evidence of lost wages. I disagree with this analysis. Werner stands for the proposition that interrogatories should be given to the jury whenever they are proper, and this interrogatory could have easily been modified by striking the line dealing with lost wages.
{¶ 26} Civ.R. 49(B) grants the court the additional discretion to determine the form and substance of the interrogatories. Riley v. Cincinnati,
{¶ 27} Generally, the parties have the burden of submitting a proper interrogatory. In the case at bar, however, because the trial court mistakenly believed the interrogatory was a special verdict form, the appellant had no opportunity to resubmit the interrogatories in the proper form. The court stated: "That's a special verdict. Those have been outlawed in Ohio for a long time." Tr. at 183. The court then inquired about the form of the verdict, and rejected the proposed interrogatory, stating it was a special verdict form. The court concluded no further arguments were needed. Tr. at 186.
{¶ 28} Civ.R. 49(C)states: "Special verdicts shall not be used." Civ.R. 49(A) provides: "A general verdict, by which the jury finds generally in favor of the prevailing party, shall be used." The Supreme Court of Ohio in Schellhouse Admx. v. Norfolk Western Railway Co., et al.,
{¶ 29} The problem is that the judge's definitive and erroneous ruling precluded any modification of the interrogatory. As a result, the court did not even consider submitting the proffered interrogatory in a redacted form; nor did the court give the appellant any opportunity to respond to the court's objection.
{¶ 30} For these reasons, I believe the majority mischaracterizes when it says that this court "is not authorized to reverse a correct judgment merely because erroneous reasons were assigned as the basis thereof." Majority Opinion, at 8. AsRiley, supra, points out, it is mandatory that the jury receive interrogatories which if they contain errors should be corrected not abandoned. The judgment in this case cannot be deemed "correct" when the jury never received any interrogatories. By putting the proverbial cart before the horse, the jury verdict cannot be deemed "correct" if we do not know how the jury allocated the damages. I would, therefore, reverse and remand for a new trial.