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holding that App.R. 12(B) "requires the appellate court to refrain from consideration of errors assigned and argued in the brief of appellee on cross-appeal which, given the disposition of the case by the appellate court, are not prejudicial to the appellee"
Summary of this case from Waste Mgt. v. Cincinnati Bd. of HealthOpinion
No. 89-442
Submitted March 13, 1990 —
Decided August 29, 1990.
Civil procedure — Former Loc. R. 21 of the Cuyahoga County Court of Common Pleas vested discretion in the trial court to determine whether compliance therewith had been accomplished — Great latitude afforded counsel in closing argument to the jury — Assessment of whether permissible bounds of closing argument have been exceeded is a discretionary function of the trial court — Presumption exists that jury has followed the instructions given to it by the trial court — Single injury result of tortious acts of multiple defendants — Burden of proof on plaintiff to show conduct of each defendant was substantial factor in producing the harm — Burden of proof as to apportionment is upon each actor seeking to limit his liability — 2 Restatement of the Law 2d, Torts (1965), Section 433B(2), applicable — App. R. 12(B) requires appellate court to refrain from consideration of errors assigned on cross-appeal, when.
O.Jur 3d Pretrial Procedure § 1.
1. Former Loc. R. 21 of the Cuyahoga County Common Pleas Court vested in the trial court the discretion to determine whether compliance therewith has been accomplished, and such determination will not be reversed on appeal absent an abuse of discretion. ( Paugh Farmer, Inc. v. Menorah Home for Jewish Aged, 15 Ohio St.3d 44, 15 OBR 142, 472 N.E.2d 704, approved and followed.)
O.Jur 3d Trial §§ 406, 409.
2. Great latitude is afforded counsel in the presentation of closing argument to the jury. Included within the bounds of permissible argument are references to the uncontradicted nature of the evidence presented by the advocate.
3. The assessment of whether the permissible bounds of closing argument have been exceeded is, in the first instance, a discretionary function to be performed by the trial court. Such determination will not be reversed on appeal absent an abuse of discretion.
O.Jur 3d Trial §§ 268.
4. A presumption always exists that the jury has followed the instructions given to it by the trial court. ( State v. Fox, 133 Ohio St. 154, 10 O.O. 218, 12 N.E.2d 413; Browning v. State, 120 Ohio St. 62, 165 N.E. 566, approved and followed.)
O.Jur 3d Contribution, etc. §§ 83, 85, 87.
5. Where a plaintiff suffers a single injury as a result of the tortious acts of multiple defendants, the burden of proof is upon the plaintiff to demonstrate that the conduct of each defendant was a substantial factor in producing the harm.
6. Where the tortious conduct of two or more actors has combined to bring about harm to the plaintiff, and one or more of the actors seeks to limit his liability on the ground that the harm is capable of apportionment among them, the burden of proof as to the apportionment is upon each such actor. ( Ryan v. Mackolin, 14 Ohio St.2d 213, 43 O.O. 2d 326, 237 N.E.2d 377, overruled to the extent inconsistent herewith; 2 Restatement of the Law 2d, Torts [1965], Section 433B[2], adopted.)
7. 2 Restatement of the Law 2d, Torts (1965), Section 433B(2) is applicable where a single, indivisible injury is proximately caused by the successive tortious acts of multiple defendants.
O.Jur 3d Appellate Review §§ 184, 187.
8. Where the court of appeals determines that the trial court committed no error prejudicial to the appellant in any of the particulars assigned and argued in the brief thereof, App. R. 12(B) requires the appellate court to refrain from consideration of errors assigned and argued in the brief of appellee on cross-appeal which, given the disposition of the case by the appellate court, are not prejudicial to the appellee. The judgment or final order of the trial court should, under such circumstances, be affirmed as a matter of law by the court of appeals.
CERTIFIED by the Court of Appeals for Cuyahoga County, No. 54729.
On June 1, 1984, plaintiff-appellee and cross-appellant, Gordon Pang, was operating his motor vehicle southbound in the curb lane of Northfield Road in the village of North Randall. As appellee attempted to make a right turn at the entrance to the parking lot of Randall Park Mall, his vehicle collided with an automobile driven by defendant-appellant and cross-appellee, Lynne Minch. Minch had been proceeding northbound on Northfield Road and was in the process of making a left turn into the mall entrance when the collision occurred. As a result of the collision, appellee and his wife, plaintiff-appellee and cross-appellant, Joan Pang, a passenger in the vehicle, suffered various physical injuries. Following the accident, appellee Gordon Pang was taken to Suburban Community Hospital in Warrensville Heights where X-rays were taken of his skull, knees, shoulders and spine, and medication was prescribed.
On June 2, 1984, appellee was examined by Dr. Mark A. Roth, his personal physician. At that time, appellee was diagnosed as suffering injuries to the soft tissue around the left shoulder, injury to the left knee and injury to muscles along the right side of the neck and upper back area. Roth thereafter prescribed rest and application of heat to the affected areas.
On June 14, 1984, appellee was again examined by Roth. Appellee communicated to Roth that he was experiencing what Roth concluded to be lumbosacral spasms — acute painful sensations in the lower back area. The condition of appellee was subsequently diagnosed by Roth as constituting lumbar myofascitis — a painful condition originating from the soft tissues surrounding the lower spine area. Roth further concluded that this condition and the medical treatment therefor were attributable to the accident of June 1, 1984.
On June 8, 1984, appellee visited Dr. Joseph M. Centanni, a chiropractor and mechanotherapist. Appellee told Centanni that he was experiencing pain and tenderness around his head, neck, shoulders, left knee and lower back. The examinations by Centanni disclosed that appellee was experiencing, among other things, a severe right sacroiliac subluxation — displacement of the right sacroiliac joint in the lower back. Based upon his examination and diagnosis, Centanni concluded that appellee's injuries were related to the automobile accident on June 1, 1984. In response to these symptoms, Centanni administered manipulative adjustment of the vertebrae and physiotherapy. The latter technique in this case consisted of providing topical heat to the affected area, thereby increasing circulation and promoting recovery.
On June 11, 1984, appellee visited Dr. Moses Leeb, an orthopedic surgeon, and communicated to him that he was experiencing low back pain and stiffness. A subsequent examination by Leeb revealed lumbosacral tenderness and muscle spasms. X-rays taken of appellee's back disclosed slight leftward deviation of the lower vertebra. Leeb concluded that the muscle spasms and resultant deviation of the vertebrae were caused by an injury to the lumbar muscles. Appellee was therefore diagnosed as suffering from lumbar myofascitis. Leeb thereafter prescribed pain medication and application of heat to the lower lumbar region. It was Leeb's opinion that the symptoms experienced by appellee were a direct result of the June 1, 1984 accident. Leeb further concluded that the treatments administered to appellee were necessitated by that accident.
On June 18, 1984, appellee was again examined by Leeb. The examination revealed that appellee continued to experience lumbosacral tenderness, spasms and pain. On July 17, 1984, Leeb performed a follow-up examination of appellee. At that time, Leeb concluded that appellee was experiencing some improvement in his condition.
On August 21, 1984, appellee was operating his motor vehicle westbound on Aurora Road in the city of Solon. As appellee's vehicle passed a driveway located at 29201 Aurora Road, it was struck in the right side by an automobile driven by defendant-appellant and cross-appellee, Jerry Lehecka. As a result of the impact, appellee was thrown against the left door of his vehicle, injuring his lower back and exacerbating his pre-existing condition.
On August 24, 1984, appellee kept a previously scheduled appointment with Centanni. Centanni again administered heat and manipulative therapy to the back. These treatments were repeated on August 27, 1984. Centanni concluded that, in part, the symptoms experienced by appellee were directly related to the August 21, 1984 accident.
On August 30, 1984, appellee was examined further by Leeb. Leeb advised appellee to rest and apply heat to the lower back. During a follow-up visit on September 6, 1984, appellee complained of persistent pain in the lumbosacral region. An examination by Leeb revealed that appellee was experiencing a moderate limitation of movement, and Leeb prescribed a corset for appellee to wear so as to avoid aggravation of his condition. On September 18, 1984, appellee was examined again by Leeb. Appellee reported at that time that his condition had improved. Leeb recommended that appellee perform certain flexion postural exercises to stretch the tightness in his lower back and stabilize his pelvic muscles. On October 9, 1984, appellee returned to Leeb's office and reported that his condition had continued to improve.
On October 15, 1984, appellee was operating his motor vehicle on the entrance ramp to Interstate Route 271 northbound in the city of Warrensville Heights. During this time, the highway was undergoing road repair and a temporary stop sign had been placed at the end of the ramp. At the convergence of the highway and the ramp, appellee applied his brakes and stopped his vehicle, whereupon he was struck from behind by a vehicle operated by defendant-appellant and cross-appellee, Jack Hamilton. As a result of the collision, appellee suffered injuries to his neck and back.
Appellee thereafter reported to the emergency room of Suburban Community Hospital where X-rays were taken of his back and pain medication was prescribed for him. That evening appellee experienced soreness in his back and neck.
On October 17, 1984, appellee was examined again by Centanni. The examination revealed that appellee was experiencing a right sacroiliac subluxation associated with pain, tenderness and muscle strain in his lower back. Centanni further concluded that the symptoms were related to the automobile accident of October 15, 1984. Appellee received treatment for these symptoms in the form of physiotherapy and manipulative therapy. In the opinion of Centanni, the treatments were necessitated by the injuries suffered in the October 15, 1984 accident.
On November 6, 1984, appellee was examined by Leeb. At the time, appellee was experiencing some improvement in his condition. However, during a return visit to Leeb on November 20, 1984, appellee suffered a recurrence of low back pain and tenderness. An examination by Leeb revealed lumbosacral tenderness, spasm and limitation of motion. Muscle relaxants were prescribed to relieve the condition.
On November 27, 1984, appellee consulted his family physician, Roth, complaining of chronic lower back pain. Roth's diagnosis was that appellee was suffering from lumbosacral myofascitis. Appellee also sought professional assistance from Leeb on January 3, 1985 for the condition. An examination conducted by Leeb revealed a twenty-five percent restriction in flexion.
On January 17, 1985, appellee was examined again by Roth. It was the conclusion of Roth that appellee continued to suffer from lumbosacral myofascitis. Accordingly, his diagnosis remained unchanged from that rendered by him on November 27, 1984. On February 3, 1986, appellee was examined by Richard Kaufman, a physician specializing in orthopedic surgery. Prior to the examination, appellee described to Kaufman the circumstances surrounding the three successive automobile accidents and the injuries sustained therein. The examination revealed that appellee was experiencing pain and spasm in the lower back, producing a moderate restriction of motion. Kaufman thereafter diagnosed appellee as suffering from chronic lumbosacral myofascitis.
It was the further conclusion of Kaufman that the lumbosacral myofascitis was the result of the three automobile accidents. Appellee was instructed by Kaufman to wear a brace and to undergo physical therapy. Kaufman also prescribed an anti-inflammatory medication to reduce the inflammation in appellee's muscles and ligaments. On March 18, 1986, appellee again was examined by Kaufman. The examination revealed no improvement in appellee's condition. Kaufman thereafter prescribed low back exercises to relieve the pain. Subsequent visits to Dr. Kaufman on May 6 and June 14, 1986 revealed moderate improvement in appellee's condition. Later examinations showed marginal easing of the pain and tenderness experienced by appellee. However, it was Kaufman's opinion that any remaining discomfort was of a permanent nature and would preclude employment activities in which appellee had previously engaged.
On January 22, 1986, appellee instituted the present action alleging negligence on the part of appellants, Lynne Minch, Jerry Lehecka and Jack Hamilton, in the operation of their motor vehicles on June 1, August 21 and October 15, 1984, respectively. Appellee further alleged that such negligence was the proximate cause of his bodily injuries, loss of income and other damages. On September 21, 1987, appellant Minch filed a motion in limine seeking, inter alia, exclusion of the testimony of Kaufman for failure of appellee to supply Minch with copies of Kaufman's medical report prior to trial in violation of Loc. R. 21 of the Cuyahoga County Common Pleas Court. This motion was overruled.
On September 21, 1987, trial commenced in the Cuyahoga County Court of Common Pleas. During trial, live testimony was elicited from Centanni, and the depositions of Roth, Leeb and Kaufman summarizing their medical findings were submitted for jury consideration.
At the conclusion of the evidence, counsel for appellees commenced his closing argument to the jury. In the course of his argument, counsel stated as follows:
"[MR. TOLARO:] I don't think there is any question on the medical issue because if there is or would have been, certainly the other side would have asked to have him examined by their —
"MR. COYNE: Objection, your Honor.
"THE COURT: Overruled.
"MR. TOLARO: — by their own doctor, as they have the right to do, and have their doctor come in and testify to the contrary. They didn't do that.
"MR. COYNE: Objection.
"THE COURT: Overruled. Noted for the record.
"MR. TOLARO: And it is for obvious reasons. They are not disputing his injury. Well, if they are not disputing the injury —
"MR. COYNE: Objection.
"MS. ROLLER: Objection.
"THE COURT: Overruled.
"MR. TOLARO: — what are they disputing? * * *"
Later in his closing argument, counsel for appellee made the following statement:
"[MR. TOLARO:] Before you start your car up out of the driveway, you look to the right and you look to the left. I learned that when I could first learn to walk. My mother taught me that. There's no excuse for that and yet they come into this court pinning their hopes on maybe some prejudice that the Jury may have against these people.
"MS. ROLLER: Objection.
"MR. KRAMER: Objection.
"MR. COYNE: Objection, your Honor.
"THE COURT: Sustained." (Emphasis added.)
In addressing the issue of damages, counsel made the following remarks:
"[MR. TOLARO:] * * * The testimony was that there is from time to time after the third accident — there's no way that the doctors can separate what part is what because they were treating him before, during and after for the low back. It's a question now as to how you are going to apportion it.
"Gordon is 32 years old. He's got approximately 40 years left and if you give him $5,000 a year —
"MR. KRAMER: Objection, your Honor. That's a joint and several argument, I believe.
"May I approach the bench?
"THE COURT: No. I'll sustain the objection and ask that you become a little bit more specific, if you would, Mr. Tolaro.
"MR. TOLARO: All right. Let's put it this way, he is going to live approximately 40 years, according to our human experience —
"MR. KRAMER: Objection, your Honor.
"THE COURT: Overruled. Go ahead.
"MR. TOLARO: And if you pay him $5,000 a year for the next 40 years, that's $200,000. That's for 40 years. It comes out to a lot of money.
"As far as apportioning it, this will be up to you. I submit that with this figure here, let's say you divided three ways —
"MR. KRAMER: Objection.
"THE COURT: Sustained.
"MR. TOLARO: That's an apportionment, not joint and several.
"THE COURT: I want everybody to approach the bench."
Following closing argument and over the objection of counsel for appellees, the trial court submitted the following instruction to the jury.
"All right. Now, ladies and gentlemen, in this lawsuit Gordon Pang alleges he was injured as a result of three automobile accidents. It is his duty to establish and separate the extent to which each of the three accidents contributed to his injury. You may only find against each of the Defendants only to the extent and in the proportion that their respective negligence proximately contributed to Gordon Pang's injury, and the burden of proof regarding this remains on the Plaintiff.
"Hence, if any of the Defendants are found by you to have been liable in negligence, each Defendant should be responsible or reliable [ sic] only the extent and in the proportion that his or her default contributed to the Plaintiff's entire injury, if you find it contributed at all. Likewise, the Plaintiff may not recover for pain and suffering due to a preexisting injury which was not the proximate result of a Defendant's negligence, except where the negligence of that Defendant aggravated a preexisting injury.
"Aggravation means a physical condition already existing made worse by the acts of a defendant. It is for the extent of the aggravation for which the defendant is responsible."
On October 2, 1987, the jury returned several judgments in favor of appellee Gordon Pang and against appellant Lynne Minch for $60,000 (eighty percent), against appellant Jerry Lehecka for $7,500 (ten percent), and against appellant Jack Hamilton for $7,500 (ten percent).
On November 6, 1987, appellant Lynne Minch appealed the judgment to the court of appeals. Appellees Gordon and Joan Pang thereafter filed a cross-appeal of the several judgments on November 13, 1987. In their brief to the appellate court, appellees concluded their statement of the case in the following fashion:
"It is the position of plaintiffs that, other than the need for a remand on prejudgment interest, the judgment should be affirmed. The only errors committed by the trial court were to the prejudice of plaintiffs, not to the prejudice of defendants.
"However, if this court should order a new trial at the request of defendant Minch, then plaintiffs respectfully request that this court (1) rule on their assignments of error and (2) order a new trial as to all three defendants." (Emphasis sic.)
On January 24, 1989, the court of appeals overruled all of appellant Minch's assignments of error. The court concluded, however, that appellees' first and second cross-assignments of error were well-taken and that the jury should have been instructed to consider whether the appellants were jointly and severally liable. The judgment was therefore reversed and remanded for retrial on the issue of damages.
While it is true the court of appeals sustained appellant's fifth assignment of error in part, this holding was based not on appellant's argument relating thereto but on the appellate court's disposition of appellees' cross-appeal.
The appellate court, finding its decision to be in conflict with the decisions of the Court of Appeals for Hamilton County in Jones v. Meinking (1987), 40 Ohio App.3d 45, 531 N.E.2d 728, and Williams v. Gragston (1982), 7 Ohio App.3d 369, 7 OBR 469, 455 N.E.2d 1075, certified the record of the case to this court for review and final determination.
Miller Tolaro Co., L.P.A., Alfred J. Tolaro and James L. Deese, for appellees and cross-appellants.
William J. Coyne, for appellant and cross-appellee, Jack Hamilton.
McNeal, Schick, Archibald Biro and Fredric E. Kramer, for appellant and cross-appellee, Jerry Lehecka.
Davis Young Co., L.P.A., Jan L. Roller and Martin J. Murphy, for appellant and cross-appellee, Lynne M. Minch.
Frank A. Ray Co., L.P.A., and Frank A. Ray, urging affirmance for amicus curiae, Ohio Academy of Trial Lawyers.
The motion of amicus curiae, Ohio Academy of Trial Lawyers, for leave to file a brief instanter is hereby granted.
I
We will first consider the contention of appellant Minch concerning the trial court's denial of her motion in limine seeking to foreclose consideration of the testimony of Dr. Kaufman by the jury. The basis for the motion was the alleged noncompliance by appellees with former Loc. R. 21 of the Cuyahoga County Common Pleas Court. Promulgation of the rule is authorized by Civ. R. 16, which provides in relevant part:
"A court may adopt rules concerning pretrial procedure to accomplish the following objectives:
"* * *
"(6) The exchange of medical reports and hospital records[.]"
Former Loc. R. 21 provided in relevant part:
"For the purpose of insuring the readiness of cases for pretrial and trial the following shall be in effect.
"A pretrial conference shall be conducted in all civil cases prior to being scheduled for trial, except in actions for injunctions, foreclosures, marshalling of liens, partition, receiverships, and on appeal from administrative agencies. In addition, the judge assigned the case may, for good cause shown at a hearing prior to trial, waive pretrial requirements stated herein and make such orders he deems just relative to discovery or pretrial proceedings." (Emphasis added.)
With respect to pretrial statements, Loc. R. 21, Part I, provided as follows:
"(A) At least one week prior to the scheduled pretrial hearing, counsel for both sides shall completely execute and file a separate Pretrial Statement in the Central Scheduling Office on behalf of their respective clients and serve a copy of it on all opposing counsel. * * *
"(B) The Pretrial Statements will recite a brief description of the case and the injuries involved, will list item by item, the ascertainable damages such as medical expenses, lost earnings, property damage, etc., will indicate the status of depositions and physical examinations, and reflect the lowest demand and highest offer. Since Ohio Civil Rule 16 authorizes the Court to require counsel to exchange the reports of medical and expert witnesses expected to be called by each party, each counsel shall exchange with all other counsel the written reports of medical and expert witnesses he expects to testify and the Pretrial Statements shall indicate compliance with this provision. Should a party intend to call an expert witness and has not procured a written report from said witness, he shall so indicate such fact in his pretrial statement stating the name and address of the expert and the subject of his expertise together with the reason for his non-receipt of such report.
"(C) Expert witnesses whose reports have not been furnished to opposing counsel prior to a pretrial held within sixty (60) days before trial, will not be permitted to testify at the trial, except where a party has not received a written report from such expert witness but has fully complied with Item (B) hereof." (Emphasis added.)
In the case at bar, Dr. Kaufman did not prepare a medical report regarding the injuries to Gordon Pang. Accordingly, pursuant to former Loc. R. 21, Part I(C), actual production of a report was not required. Nevertheless, it is urged by appellant Minch that appellees failed to comply with the requirement of Loc. R. 21, Part I(B), that they include within their pretrial statement the name and address of the expert, the subject of his expertise and the reason for non-receipt of the report.
As early as the November 13, 1986 deposition of Gordon Pang, counsel for at least one of the appellants was aware that Pang had been treated by Kaufman. This information, along with the address of Kaufman, had also been provided in response to interrogatories propounded to Gordon Pang by appellant Hamilton. Moreover, on August 18, 1987, counsel for appellees sent a detailed correspondence to counsel for the appellants summarizing the injuries suffered by Gordon Pang and identifying the physicians who treated him, including Kaufman.
Considering the absence of a physician's report and appellees' efforts to apprise appellants of Kaufman's identity and address, the trial court concluded that appellants were placed on notice that appellees intended to rely upon his testimony. The court therefore concluded that appellants were not prejudiced by the lack of a physician's report. We agree.
The clear import of former Loc. R. 21 was to vest in the trial court the discretion to determine whether a party has complied with the rule and the appropriate sanctions for its transgression. Such determinations will not be reversed on appeal absent an abuse of discretion. See Paugh Farmer, Inc. v. Menorah Home for Jewish Aged (1984), 15 Ohio St.3d 44, 15 OBR 142, 472 N.E.2d 704. Appellant Minch contends, however, that exclusion of the testimony is mandatory where a report is not produced and supplied. This argument is without merit for two reasons. As an initial matter, if a report was required in all cases there would be no need to provide for alternative compliance pursuant to Loc. R. 21, Part I(B). Second, mandatory exclusion of expert testimony would be inconsistent with the authority conferred upon the trial judge to "waive pretrial requirements * * * and make such orders he deems just relative to discovery or pretrial proceedings." We therefore hold that former Loc. R. 21 of the Cuyahoga County Common Pleas Court vested in the trial court the authority to determine whether compliance therewith had been accomplished, and such determination will not be reversed on appeal absent an abuse of discretion.
II
Appellants Minch and Lehecka maintain further that the trial court erred in permitting counsel for appellees to comment in closing argument that appellants had failed to present evidence contradicting the testimony of appellee's expert witness regarding appellee's physical injuries. It is axiomatic that great latitude is afforded counsel in the presentation of closing argument to the jury. State v. Champion (1924), 109 Ohio St. 281, 289, 142 N.E. 141, 143. See, also, State v. Woodards (1966), 6 Ohio St.2d 14, 26, 35 O.O. 2d 8, 14, 215 N.E.2d 568, 578. Included within the bounds of permissible argument are references to the uncontradicted nature of the evidence presented by the advocate. State v. Ferguson (1983), 5 Ohio St.3d 160, 5 OBR 380, 450 N.E.2d 265, paragraph one of the syllabus; State v. Champion, supra. The assessment of whether these bounds have been exceeded is, in the first instance, a discretionary function to be performed by the trial court. Ohio Western Pennsylvania Dock Co. v. Trapnell (1913), 88 Ohio St. 516, 521, 103 N.E. 761, 763; Legg v. Drake (1853), 1 Ohio St. 286, 288. Such determination will not be reversed on appeal absent an abuse of discretion. See Braeuning v. Russell (1960), 170 Ohio St. 444, 446, 11 O.O. 2d 200, 201, 166 N.E.2d 240, 242.
In the case at bar, counsel for appellees contended in closing argument that appellees' evidence regarding the existence and severity of Gordon Pang's injuries was unrebutted by appellants. These remarks were neither inappropriate nor prejudicial. Accordingly, the trial court did not abuse its discretion by overruling the objection thereto.
III
It is also the contention of appellants Minch and Hamilton that the remarks of counsel for appellees which suggested that appellants were relying upon prejudice against appellees on the part of the jury were not supported by the record and therefore inappropriate. While we agree with the aforementioned contention of appellants, we are unable to concur in their further assertion that it affected the jury verdict in any respect. It must be observed at the outset that the objection by appellants to counsel's remarks was sustained by the trial court. Moreover, the jury was instructed that the opening and closing statements of counsel are not evidence and should not be considered as such. The jury was further instructed that no evidentiary value was to be ascribed to matters which were withdrawn from the jury's consideration by the trial court.
A presumption always exists that the jury has followed the instructions given to it by the trial court. State v. Fox (1938), 133 Ohio St. 154, 160, 10 O.O. 218, 221, 12 N.E.2d 413, 416; Browning v. State (1929), 120 Ohio St. 62, 72, 165 N.E. 566, 569. Accordingly, it must be presumed that the jury properly disregarded the closing remarks of counsel for appellees as they related to matters not in evidence.
A similar disposition must be made of appellants' objection to appellees' argument to the jury suggesting that each defendant bear a one-third share of the damages. Inasmuch as the objection to the argument was sustained, it must be presumed that the jury disregarded the comments.
IV
While overruling all of the assignments of error advanced by appellant Minch, the court of appeals sustained the first assignment of error set forth by appellees in their cross-appeal. In so doing, the appellate court adopted 2 Restatement of the Law 2d, Torts (1965), Section 433B(2). Appellants contend that the decision of the court of appeals is inconsistent with our prior holding in Ryan v. Mackolin (1968), 14 Ohio St.2d 213, 43 O.O. 2d 326, 237 N.E.2d 377. In Ryan, supra, the plaintiff suffered injuries as a result of two automobile accidents separated by a period of approximately five months. The plaintiff sought both permissive joinder of both defendants (the operators of the other motor vehicles in the two accidents) and the imposition of joint and several liability on each for injuries plaintiff sustained to his back. While this court concluded that joinder of the tortfeasors as parties defendant was appropriate, it was further determined that only several, not joint, judgments could be obtained by plaintiff.
In reaching the aforementioned conclusion, the court in Ryan quoted with approval 22 American Jurisprudence 2d, Damages, Section 14, which then provided as follows:
"`Generally speaking, and apart from the situation where a defendant is held responsible on the doctrine of respondeat superior or the like, a defendant is liable only to the extent to which his own acts have caused the injury complained of, and it follows that separate wrongs done by independent agents cannot be joined together to increase the responsibility of one of the wrongdoers, notwithstanding any difficulty there may be in determining what part of the injury or loss was the result of the acts or omissions of the defendant, and what part was the result of other causes. It has been said that tort-feasors generally will not be held jointly and severally liable where their independent, concurring acts have caused distinct and separate injuries to the plaintiff, or where some reasonable means of apportioning the damages is evident.'" (Emphasis sic.) Ryan, supra, at 218-219, 43 O.O. 2d at 329, 237 N.E.2d at 381.
In this respect the holding in Ryan mirrors the language of 2 Restatement of the Law 2d, Torts (1965), Section 433A, which provides as follows:
"(1) Damages for harm are to be apportioned among two or more causes where
"(a) there are distinct harms, or
"(b) there is a reasonable basis for determining the contribution of each cause to a single harm.
"(2) Damages for any other harm cannot be apportioned among two or more causes."
The appellate court below concluded that Ryan was distinguishable from the case at bar inasmuch as the former decision involved an appeal of a trial court dismissal of the action for misjoinder of parties. Accordingly, the court of appeals interpreted Ryan as merely remanding the case for trial in accordance with the principles embodied in Section 433A.
While the appellate court's reading of Ryan is an entirely plausible interpretation of its procedural context, other language in the opinion is at variance with such a narrow construction of its effect. In concluding that only several judgments may be obtained in any subsequent trial of the underlying action, the Ryan court observed as follows:
"Although we are obliged to indulge in every inference favorable to the pleader, we cannot ignore the allegation in the petition herein that following the first collision Ryan was hospitalized and received medical treatment for an injury to his back. The nature and extent of the disabling effect of that collision having been subject to medical scrutiny, we cannot assume that however indivisible in effect plaintiff's back injury became after the second collision, it will be incapable of separation as to cause. The sequence of events here is not such that, however difficult, it should be insurmountable to chart the course of cause to effect as a subsequent event adds its force to the flow. See Milks v. McIver, 264 N.Y. 267, 190 N.E. 487.
"We, therefore, must concur with appellants that `each defendant should only be responsible or liable pro-rata for that part of the damages attributable to his particular factor of causation.' Accordingly, several judgments only are warranted against these independent tort-feasors, whose torts are not concurrent, and against each only to the extent and in the proportion that his default proximately contributed to the plaintiff's entire injury, the burden of proof of which should remain upon the latter." (Emphasis sic.) Id. at 222, 43 O.O. 2d at 330-331, 237 N.E.2d at 381.
This aspect of Ryan, therefore, would appear to be inconsistent with Sections 433A and 433B of the Restatement. While the language of the opinion would allow for joint and several liability where no reasonable means of apportionment of the damages is evident (compare Section 433A[2]), the Ryan court nevertheless held as a matter of law that apportionment in that case was possible. This analysis is flawed in several respects. As an initial matter it was based on the belief that joint and several liability will result only where there is indivisibility of causation. However, an official comment to Section 433A provides as follows:
"* * * Where two or more causes combine to produce such a single result, incapable of division on any logical or reasonable basis, and each is a substantial factor in bringing about the harm, the courts have refused to make an arbitrary apportionment for its own sake, and each of the causes is charged with responsibility for the entire harm. The typical case is that of two negligently driven vehicles which collide and kill a bystander. The two drivers have not acted in concert, and the duties which they owe are separate and distinct, and may not be identical in character or scope; but the entire liability of each rests upon the obvious fact that each has caused the single result, and that no rational basis for division can be found." (Emphasis added.) 2 Restatement of the Law 2d, Torts (1965) 440, Section 433A, Comment i.
Thus, the criterion for application of both 433A(2) and 433B is the indivisibility of harm, not the indivisibility of causation. Second, the court in Ryan not only placed an erroneous burden of proof upon the plaintiff therein but further concluded that as a matter of law such burden could not be met. Finally, the decision of the Ryan court is inconsistent with Section 433B(1) of the Restatement. This subsection provides as follows:
It is undoubtedly true that the determination of whether the harm sustained by the plaintiff is capable of apportionment constitutes a judicial function. 2 Restatement of the Law 2d, Torts (1965), Section 434(1)(b); Mathews v. Mills (1970), 288 Minn. 16, 23, 178 N.W.2d 841, 845; Richardson v. Volkswagenwerk, A.G. (W.D. Mo. 1982), 552 F. Supp. 73, 83. However, given the respective burdens of persuasion borne by the parties, it would be error to conclude, prior to trial, that such apportionment was possible. See the discussion infra.
"(1) Except as stated in Subsections (2) and (3), the burden of proof that the tortious conduct of the defendant has caused the harm to the plaintiff is upon the plaintiff."
The comment to Section 433B(1) states as follows:
"Subsection (1) states the general rule as to the burden of proof on the issue of causation. As on other issues in civil cases, the plaintiff is required to produce evidence that the conduct of the defendant has been a substantial factor in bringing about the harm he has suffered, and to sustain his burden of proof by a preponderance of the evidence. This means that he must make it appear that it is more likely than not that the conduct of the defendant was a substantial factor in bringing about the harm." (Emphasis added.) 2 Restatement of the Law 2d, Torts (1965) 442, Section 433B(1), Comment a.
Thus, where a plaintiff suffers a single injury as a result of the tortious acts of multiple defendants, the burden of proof is upon the plaintiff to demonstrate that the conduct of each defendant was a substantial factor in producing the harm. See Porterie v. Peters (1975), 111 Ariz. 452, 455-456, 532 P.2d 514, 517-518; Richardson v. Volkswagenwerk, A.G. (W.D. Mo. 1982), 552 F. Supp. 73, 82-83. Once this burden has been met, a prima facie evidentiary foundation has been established supporting joint and several judgments against the defendants. Thereafter, the burden of persuasion shifts to the defendants to demonstrate that the harm produced by their separate tortious acts is capable of apportionment. In this regard, Section 433B(2) of the Restatement provides as follows:
"Where the tortious conduct of two or more actors has combined to bring about harm to the plaintiff, and one or more of the actors seeks to limit his liability on the ground that the harm is capable of apportionment among them, the burden of proof as to the apportionment is upon each such actor."
Appellant Minch argues that Section 433B(2) is wholly consistent with Ryan, supra, and is applicable only where there exists both an indivisibility of harm and an indivisibility of causation. It is therefore her contention that Section 433B(2) applies merely to situations involving concurrent rather than successive tortfeasors. However, the position of appellant is contradicted by the plain language of Section 433B(2) and the official comment thereto. Comment d to Section 433B(2) observes as follows:
"The reason for the exceptional rule placing the burden of proof as to apportionment upon the defendant or defendants is the injustice of allowing a proved wrongdoer who has in fact caused harm to the plaintiff to escape liability merely because the harm which he has inflicted has combined with similar harm inflicted by other wrongdoers, and the nature of the harm itself has made it necessary that evidence be produced before it can be apportioned. In such a case the defendant may justly be required to assume the burden of producing that evidence, or if he is not able to do so, of bearing the full responsibility. As between the proved tortfeasor who has clearly caused some harm, and the entirely innocent plaintiff, any hardship due to lack of evidence as to the extent of the harm caused should fall upon the former." (Emphasis added.)
Thus, while the Ryan court would appear to limit its scope to concurrent tortfeasors, Ryan, supra, at 219, 43 O.O. 2d at 329, 237 N.E.2d at 382, the language of Section 433B(2) and the comment thereto compel no such result. The focus of both the subsection and the comment is upon the indivisibility of harm, not the indivisibility of causation. Accord Hawkes v. Goll (1939), 256 App. Div. 940, 9 N.Y. Supp. 2d 924, affirmed (1939), 281 N.Y. 808, 24 N.E.2d 484.
Indeed, in Illustration 7 to Section 433, Comment d, any reference to the simultaneous or concurrent nature of the tortious acts described therein is conspicuously absent.
Appellants contend that, inasmuch as each of the successive impacts sustained by appellee was subject to medical scrutiny, he bears the burden of apportionment. However, the language of Sections 433A and 433B and the comments thereto place upon the plaintiff the burden to demonstrate that he has suffered an injury and that the tortious act of each defendant was a substantial cause in producing that injury. Once this burden has been met, it is the responsibility of the defendants to apportion the harm if joint and several liability is to be avoided. In this context, evidence of medical scrutiny following each tortious act is relevant only insofar as it assists the defendants in fulfilling this responsibility.
We therefore hold that 2 Restatement of the Law 2d, Torts (1965), Section 433B(2) is applicable where a single, indivisible injury is proximately caused by the successive tortious acts of multiple defendants. See Ravo v. Rogatnick (1987), 70 N.Y. 2d 305 , 520 N.Y. Supp. 2d 533, 514 N.E.2d 1104.
In the case at bar, it was clearly established that each of the appellants was negligent and that each negligent act was a substantial factor in producing the permanent injuries to appellee's back. Evidence was also presented to the jury from which it could conclude that appellee suffered indivisible harm as a result of all three accidents. Accordingly, the evidence adduced by appellees was sufficient to obtain joint and several judgments against all three appellants. The burden to apportion the harm was thereafter the responsibility of appellants.
V
The jury, having been instructed by the trial court in accordance with the holding of Ryan, returned several judgments against the appellants. The appellate court, while overruling all assignments of error propounded by appellant Minch, sustained two of the four assignments of error urged by appellees on cross-appeal. The determination was made despite the request by appellees that their assignments of error be entertained only in the event that any of the assignments of error advanced by appellant were sustained and a new trial ordered. Appellees and appellants Lehecka and Hamilton were satisfied with the jury verdict and none of these parties desired a retrial of the case. Apparently, the appellate court felt compelled to address the assignments of error urged by appellees on cross-appeal. This determination may have been motivated by the requirements of App. R. 12(A), which provides as follows:
It is certainly understandable that appellees would wish to preserve the errors assigned by them and have the liability rules announced herein apply on retrial in the event that the appellate court sustained the assignments of error urged by appellant Minch. The better method for attaining this goal would be employment of the procedure authorized by R.C. 2505.22. This section provides as follows:
"In connection with an appeal of a final order, judgment, or decree of a court, assignments of error may be filed by an appellee who does not appeal, which assignments shall be passed upon by a reviewing court before the final order, judgment, or decree is reversed in whole or in part. The time within which assignments of error by an appellee may be filed shall be fixed by rule of court." (Emphasis added.)
Utilization of R.C. 2505.22 would have allowed the appellate court to consider appellees' assignments of error only if the judgment was reversed, see Parton v. Weilnau (1959), 169 Ohio St. 145, 8 O.O. 2d 134, 158 N.E.2d 719, paragraph seven of the syllabus, and would have had the salutary effect of clarifying the applicable law on remand had reversal and retrial been necessary. See Duracote Corp. v. Goodyear Tire Rubber Co. (1983), 2 Ohio St.3d 160, 165, 2 OBR 704, 708, 443 N.E.2d 184, 188 (C. Brown, J., dissenting).
"In every appeal from a trial court of record to a court of appeals, not dismissed, the court of appeals shall review and affirm, modify, or reverse the judgment or final order of the trial court from which the appeal is taken. The appeal shall be determined on its merits on the assignments of error set forth in the briefs required by Rule 16, on the record on appeal as provided by Rule 9, and, unless waived, on the oral arguments of the parties, or their counsel, as provided by Rule 21. Errors not specifically pointed out in the record and separately argued by brief may be disregarded. All errors assigned and briefed shall be passed upon by the court in writing, stating the reasons for the court's decision as to each such error." (Emphasis added.)
However, App. R. 12(B) provides in relevant part:
"When the court of appeals determines that the trial court committed no error prejudicial to the appellant in any of the particulars assigned and argued in appellant's brief and that the appellee is entitled to have the judgment or final order of the trial court affirmed as a matter of law, the court of appeals shall enter judgment accordingly. * * *"
Thus, where the court of appeals determines that the trial court committed no error prejudicial to the appellant in any of the particulars assigned and argued in the brief thereof, App. R. 12(B) requires the appellate court to refrain from consideration of errors assigned and argued in the brief of appellee on cross-appeal which, given the disposition of the case by the appellate court, are not prejudicial to the appellee. The judgment or final order of the trial court should, under such circumstances, be affirmed as a matter of law by the court of appeals.
This aspect of App. R. 12(B) is, of course, applicable only when, as here, the appellee is satisfied with the judgment below. Where an appellee is dissatisfied with the judgment below, albeit for reasons different from those propounded by appellant, the appellate court must consider the assignment of errors urged on cross-appeal pursuant to App. R. 12(A).
It was therefore error for the court of appeals to reverse the judgment below and order a new trial based upon the cross-appeal of appellee. Consequently, the judgment of the court of appeals is affirmed in part and reversed in part. The judgment of the trial court is hereby reinstated.
Judgment accordingly.
MOYER, C.J. STEPHENSON, H. BROWN and RESNICK, JJ., concur.
DOUGLAS, J., concurs in part and dissents in part.
HOLMES, J., concurs in judgment.
EARL E. STEPHENSON, J., of the Fourth Appellate District, sitting for WRIGHT, J.
Although I disagree with much of the syllabus law and the discussion within the opinion, I concur in the final judgment of the majority.
I
I concur in paragraph one of the syllabus as it is a correct statement of the law. I do not agree, however, with the majority's discussion supporting the proposition. Former Loc. R. 21 makes a distinction, internally, between "medical witnesses" and "expert witnesses." Part I(C) of the rule makes reference to "expert witnesses." Dr. Kaufman's report does not, in my judgment, fit into the Part I(C) exception.
I also concur in paragraphs two, three, four, six and eight of the syllabus and with the ultimate judgment of the majority. However, with regard to the majority's discussion supporting paragraph eight of the syllabus, I make reference to R.C. 2309.59 which is also dispositive of the issue. R.C. 2309.59 provides in relevant part:
"In every stage of an action, the court shall disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party. No final judgment or decree shall be reversed or affected by reason of such error or defect. * * *"
In the case at bar, the Pangs were satisfied with the judgment of the trial court and, hence, the errors assigned by them on cross-appeal admittedly did not affect their substantial rights, given the disposition of Minch's assigned errors. In ruling on the Pangs' cross-appeal, the court of appeals did find error in the proceedings of the trial court. However, R.C. 2309.59 required the court of appeals to disregard any errors found.
II
More important, I write separately because I believe that paragraphs five and seven of the syllabus are somewhat confusing, given the statement contained in paragraph six of the syllabus.
In paragraph six of the syllabus, we adopt 2 Restatement of the Law 2d, Torts (1965), Section 433B(2), which provides as follows:
"Where the tortious conduct of two or more actors has combined to bring about harm to the plaintiff, and one or more of the actors seeks to limit his liability on the ground that the harm is capable of apportionment among them, the burden of proof as to the apportionment is upon each such actor."
This is a clear statement of what I perceive the law to be — and should be. However, paragraph seven of the syllabus states that Section 433B(2) "* * * is applicable where a single, indivisible injury is proximately caused by the successive tortious acts of multiple defendants." (Emphasis added.)
Thus, paragraph seven of the syllabus seems to imply that a plaintiff must prove the indivisibility of harm before the burden of persuasion shifts to the defendants to show that the harm is apportionable. Such an inference is incorrect as it is the defendant(s) (who seek to limit their liability on the ground that the harm is capable of apportionment among them) who bear the burden of showing the divisibility of the harm.
Further, in paragraph five of the syllabus, and in Part IV of the majority opinion, certain references are made concerning the plaintiff's burden of proving that the conduct of each defendant was a substantial factor in producing the harm.
What the majority means by "substantial factor" is that the act of each defendant "proximately caused" the injury. This is so because, by virtue of paragraph six of the syllabus, the defendants are burdened with showing that the plaintiff's harm is capable of apportionment and the extent to which his or her conduct contributed to the harm. Plaintiff, who may not know whether a defendant's acts substantially contributed to his harm, need only prove that each defendant's acts contributed to the harm in any degree.
The majority finds the phrase "substantial factor" in 2 Restatement of the Law 2d, Torts (1965) 440, Section 433A, Comment i, and Section 433B(1), Comment a. Section 433B(1) merely sets forth the traditional notion that the plaintiff must prove that a defendant proximately caused his/her harm.
Accordingly, the plaintiff in a case such as the case at bar must prove only that the act of each defendant proximately caused an injury. This proposition is embodied in paragraph five of the syllabus. Thereafter, it is incumbent upon the defendants to show that the harm is capable of apportionment and the extent to which each defendant's conduct contributed to the harm. This proposition is contained in paragraph six of the syllabus.
For purposes of guidance in an area of law that is oftentimes confusing, I offer the following proposition in lieu of paragraphs five, six and seven of the syllabus:
Where a plaintiff shows that he has suffered an injury as the result of the tortious acts of two or more defendants, and one or more of the actors seeks to limit his or her liability on the ground that the harm is capable of apportionment among the other actors, the burden is upon such actor(s) to show that the harm is capable of apportionment and the extent to which his or her conduct contributed to the harm.