COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60243 FRANCIS HORNIKEL : : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION C.C. BARR SAHARA, INC. : : Defendant-appellee : : DATE OF ANNOUNCEMENT OF DECISION: APRIL 9, 1992 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas Case No. 160326 JUDGMENT: AFFIRMED DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: For Defendant-Appellee: PAUL MANCINO, JR., ESQ. DANIEL P. MCDONNELL, ESQ. 75 Public Square Building 936 Terminal Tower Suite 1016 Cleveland, Ohio 44113 Cleveland, Ohio 44113 - 1 - DYKE, J.: Appellant, Francis Hornikel, brought suit against CC Barr Sahara, Inc., Walter Apanasewicz, James Cvelbar, Larry H. Mandell, C.C. Buckley, 616 St. Lawrence, Inc., Rosemary A. Tomba, and Patrick Tomba, alleging that they had an interest in the Sahara Lounge and that an employee, agent or representative of the Lounge negligently threw appellant to the floor. Appellant further contended that the defendants negligently employed and hired untrained and irresponsible personnel and that appellant was injured as the result of outrageous conduct (i.e. intentional conduct) on the part of the defendant's agent, servant or employee. Mandell was dismissed, a directed verdict was entered for the Tombas and 616 St. Lawrence, Inc. and the jury found for the remaining appellees because appellant was more than fifty percent negligent. I THE COURT COMMITTED PREJUDICIAL ERROR IN NOT GRANTING THE MOTION FOR PROTECTIVE ORDER AND SANCTIONS WITH RESPECT TO LACK OF DISCOVERY FURNISHED BY THE DEFENDANTS. Appellant had asked the court to exclude any testimony concerning the incident in which appellant was injured. Six months before trial Cvelbar had stated in the answers to the interrogatories that he had no knowledge of the incident but a few days before trial he testified at his deposition that he had witnessed the incident and he identified the employee involved. Appellant failed to file an affidavit, the interrogatory and its - 2 - answer or the deposition. The trial court did not rule on the motion. A motion or objection that is not ruled on is presumed to have been denied. Haynes v. Smith (1900), 62 Ohio St. 161; Solon v. Solon Baptist Temple (1982), 8 Ohio App. 3d 347. Civ. R. 26(E) states as follows: Supplementation of responses. A party who has responded to a request for discovery with a response that was complete when made is under no duty to supplement his response to include information thereafter acquired, except as follows: (1) A party is under a duty reasonably to supplement his response with respect to any question directly addressed to (a) the identity and location of persons having knowledge of discoverable matters .... Exclusion of evidence is not mandated unless there is noncompliance and prejudice, i.e., appellant was unable to effectively cross-examine Cvelbar. Shumaker v. Oliver B. Cannon & Sons, Inc. (1986), 28 Ohio St. 3d 367, 370. A review of the transcript reveals that not only did appellant's counsel have the opportunity to depose Cvelbar but he also effectively cross-examined him at trial. No prejudice resulted. The decision to deny the motion was not an abuse of discretion by the trial court. E.g. Kalinoski v. Ford Motor Co. (May 16, 1991), Cuyahoga App. No. 58512, unreported at 2-3. Assignment of error No. I is overruled. - 3 - II THE DEFENDANT WAS DENIED A FAIR TRIAL WHEN THE COURT PERMITTED A DEFENSE EXPERT WITNESS TO TESTIFY WHO HAD NOT BEEN IDENTIFIED AND WHO HAD NOT FURNISHED A REPORT. III THE COURT COMMITTED PREJUDICIAL ERROR IN ALLOWING DR. ROBERT CHALLENER TO TESTIFY WHEN HE HAD FURNISHED NO EXPERT REPORT AS REQUIRED BY THE RULES OF COURT AND HAD NOT EVEN SEEN THE MEDICAL RECORDS. Appellees presented an expert witness, Dr. Robert Challener, but had failed to identify him as an expert or to provide a report as required by Cuyahoga County Court of Common Pleas Local Rule 21.1(I)(B), which states as follows: (B) A party may not call an expert witness to testify unless a written report has been procured from the witness and provided to opposing counsel. ... (C) All experts must submit reports. If a party is unable to obtain a written report from an expert, counsel for the party must demonstrate that a good faith effort was made to obtain the report and must advise the court and opposing counsel of the name and address of the expert, the subject of the expert's expertise, together with his qualifications and a detailed summary of his testimony. In the event the expert witness is a treating physician, the Court shall have the discretion to determine whether the hospital and/or office records of that physician's treatment, which have been produced, satisfy the requirements of a written report. The Court shall have the power to - 4 - exclude testimony of the expert if good cause is not demonstrated. Challener was not a treating physician. Appellees did not demonstrate good cause. Under the civil rule or the local rule the issue is whether the trial court abused its discretion in allowing or excluding the evidence despite noncompliance. See Schumaker, 28 Ohio St. 3d 83, 85 (regarding Local Rule 21). Neither case mandated exclusion. In both instances the key question is whether prejudice resulted. Schumaker, 28 Ohio St. 3d at 370 and Huffman, 19 Ohio St. 3d at 85. Kalinoski, at p. 2. Appellant objects to Challener's testimony about the blood test results and about the general effects of various alcohol levels. In light of the proper admission of the blood test result under Evid. R. 803(b), the general nature of Challener's testimony and the effective cross-examination by counsel we find no prejudice. Assignments of error Nos. II and II are overruled. IV THE DEFENDANT WAS DENIED A FAIR TRIAL WHEN THE COURT PERMITTED INTO EVIDENCE ALL OF THE HOSPITAL REPORTS ON THE PLAINTIFF INCLUDING TESTS DONE ON THE PLAINTIFF WITHOUT ANY TESTIMONY AS TO HOW THE TESTS WERE PERFORMED NOR THE ACCURACY OF THE TESTS. Appellant did make a general objection to the admission of the blood test results. Appellant specifically argued that the test results were not admissible because although the records are - 5 - an exception to the hearsay rule (Evid. R. 803(b)), the results of the tests done by others are not admissible. (Tr. 360.) Appellant cites Mastran v. Urichich (1988), 37 Ohio St. 3d 44 but Mastran simply held that a medical record's statement concerning the cause of the accident were not admissible under Evid. R. 803(b) because they lack the trustworthiness ordinarily associated with the keeping of business records. Id. at 48. Evid. R. 803(b) states as follows: Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial The following are not excluded by the hearsay rule, even though the declarant is available as a witness. ... (6) Records of Regularly Conducted Activity. A memorandum, report, record, or data compilation, in any form, of acts, events, or conditions, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness or as provided by Rule 901(B)(10), unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. (Emphasis added.) - 6 - There was no evidence of a lack of trustworthiness. The blood test results were properly admitted under Evid. R. 803(b). See Smolinski v. Crystal (April 2, 1987), Cuyahoga App. No. 51911, unreported at p. 7. Assignment of error No. IV is overruled. V THE PLAINTIFF WAS DENIED A FAIR TRIAL WHEN THE COURT PERMITTED IMPROPER QUESTIONING OF PLAINTIFF'S DEFENSE MEDICAL WITNESS, DR. EDWARD L. ANDREWS. On direct examination Dr. Andrews testified that before he spoke to appellant he reviewed the x-rays. (Tr. 7.) On cross- examination he was asked if he had reviewed the blood work and the emergency rooms records also and he replied that he had. (Tr. 26 and 31.) There were no objections. Andrews was improperly permitted to testify, over objection, that the record said appellant fell off a bar stool. (Tr. 32.) A medical record's statement concerning the cause of an accident is not admissible. Mastran v. Urichich (1988), 37 Ohio St. 3d 44, 48. The error was not prejudicial, however, given the evidence of the intoxication of the appellant. Andrews then testified, over objection, that the blood test revealed that appellant's blood alcohol level a few hours after he was taken by ambulance to the hospital was .25, that this level would effect coordination, that the passage of time would reduce the level if no other alcohol was consumed and that no alcohol would be given to a patient once transported by - 7 - ambulance. (Tr. 35-38.) This testimony merely reiterated the content of the records admitted under Evid. R. 803(b) and inquired about the general effect of alcohol. Assignment of error No. V is overruled. VI THE COURT COMMITTED PREJUDICIAL ERROR IN NOT ALLOWING INTO EVIDENCE ANSWERS TO INTERROGATORIES OF THE DEFENDANTS. Evid. R. 613(B) states as follows: Extrinsic evidence of prior inconsistent statement of witness. Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded a prior opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate him thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party- opponent as defined in Rule 801(D)(2). Appellant attempted to introduce into evidence Cvelbar's answers to the interrogatories. The answers (exhibits 17 and 18) were admissions of a party-opponent (Cvelbar) as defined in Evid. R. 801(D)(2), which states as follows: (2) Admission by party- opponent. The statement is offered against a party and is (a) his own statement, in either his individual or a representative capacity, or (b) a statement of which he has manifested his adoption or belief in its truth, or (c) a statement by - 8 - a person authorized by him to make a statement concerning the subject, or (d) a statement by his agent or servant concerning a matter within the scope of his agency or employment, made during the existence of the relationship, or (e) a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy upon independent proof of the conspiracy. The answers were offered against Cvelbar and were his own statement or a statement by his attorney. The exclusion was error but the questions and answers were read out loud during the cross-examination of Cvelbar. No prejudice resulted from their exclusion. Assignment of error No. VI is overruled. VII THE COURT COMMITTED PREJUDICIAL ERROR IN GRANTING A MOTION FOR DIRECTED VERDICT WITH RESPECT TO THE SECOND COUNT OF THE INDICTMENT. Count two of appellant's complaint states that the appellees "negligently employed people who would not act properly around patrons" and "negligently hired untrained and irresponsible personnel." The trial judge granted a directed verdict on count two for all appellees. Appellant argues that appellee James Cvelbar testified that he screened the employee who took appellant's bottle and did some investigation of him before he hired him but provided no specialized training. Our review of the record reveals that there was no evidence to support a negligent hiring claim. Appellant failed to show - 9 - that appellees knew or should have known of the employees criminal or tortious propensities. Eg. Byrd v. Faber (1991), 57 Ohio St. 3d 56, 61. A directed verdict was properly entered under Civ. R. 50 when upon any determinative fact reasonable minds could come to but one conclusion and that conclusion was adverse to the non-movant. See Ruta v. Breckinridge-Remy Co. (1982), 69 Ohio St. 2d 66, 68. Assignment of error No. VII is overruled. VIII THE COURT COMMITTED PREJUDICIAL ERROR IN INSTRUCTING THE JURY CONCERNING INTENT AND PURPOSE. Appellant contends that the jury instruction on intent failed to say that if appellees acted in disregard of the right and safety of appellant appellees were liable. A review of the transcript reveals the following exchange: [Defense counsel]: Should they also, as far as intentional, that they acted in disregard of the rights and safety -- The court: No. Counsel: That's part of legal malice. The court: That's what I would give as a definition of punitive damages, actual malice. Co-counsel: Does that include that? The court: Yes. - 10 - Counsel: Shouldn't that be included, whether it is intentional or not? The court: Your claim to get to that point is what we discussed before, is that you claim that the defendants intentionally injured plaintiff, right. Counsel: Intentionally, that also means knowingly cause. Court: You're changing it. Okay. (Emphasis added.) (Tr. 354-365.) Counsel requested a definition of intention that would include knowingly acting in disregard of the rights and safety of appellant but the court defined it as purposely. (Tr. 457-458.) Appellant insists that Marchetti v. Kalish (1990), 53 Ohio St. 3d 95 defined intentional conduct as acting in disregard of the rights and safety of a plaintiff. However, the excerpt relied upon by appellant clearly delineates three mental states of tortious conduct: intentional, reckless and negligent and discussed acting despite knowledge of "a strong probability that harm may result" and a "conscious choice of the serious danger to others" when discussing "reckless" not "intentional" acts. Id. at 100. Comments f and g to Section 500 of the Restatement of Torts 2d, supra, at 590, provide a concise analysis which differentiates between the three mental states of tortious conduct with which we are confronted. ... - 11 - f. Intentional misconduct and recklessness contrasted. Reckless misconduct differs from intentional wrongdoing in a very important particular. While an act to be reckless must be intended by the actor, the actor does not intend to cause the harm which results from it. It is enough that he realizes or, from facts which he knows, should realize that there is a strong probability that harm may result, even though he hopes or even expects that his conduct will prove harmless. ... g. Negligence and recklessness contrasted. Reckless misconduct differs from negligence in several important particulars. ... [R]eckless misconduct requires a conscious choice of a course of action, ... with knowledge of facts which would disclose this danger to any reasonable man. ... [T]he actor to be reckless must recognize that his conduct involves a risk substantially greater in amount than that which is necessary to make his conduct negligent. Id. at footnote 3. Appellant failed to request an instruction on recklessness and argues on appeal that "acting in disregard of the rights and safety of others" is part of "intent." It was properly included only as part of the instruction on punitive damages rather than intent. Assignment of error No. VIII is overruled. IX THE COURT COMMITTED PREJUDICIAL ERROR IN NOT FULLY INSTRUCTING THE JURY AS TO THE STATUTORY REQUIREMENTS WITH RESPECT TO THE SERVING OF ALCOHOLIC BEVERAGES BY A PERMIT HOLDER. - 12 - Appellant contends that because the trial court instructed the jury that appellees were prohibited from selling alcoholic beverages after two-thirty a.m. (Tr. 452) it should also have instructed that it was prohibited from selling to an intoxicated person. Since appellant fell after his beer was forcibly removed from him by appellees' employee at shortly before two-thirty a.m. the instruction given was proper. The proposed instruction would be relevant only if a third party had been injured by appellant and sued appellees. The instruction was properly refused. Assignment of error No. IX is overruled. X THE COURT COMMITTED PREJUDICIAL ERROR IN NOT GRANTING THE MOTION FOR NEW TRIAL FILED BY THE PLAINTIFF. Appellant's motion argued that the verdict was contrary to law, the verdict was not sustained by the weight of the evidence, evidence was erroneously admitted, a jury instruction was denied, and the trial court failed to grant appellant's motion for sanctions. The third, fourth and fifth of these five grounds have been addressed. Given the evidence that appellant's blood alcohol level was .25 the jury could reasonably conclude that appellant was more than fifty percent negligent and could not recover. Assignment of error No. V is overruled. Judgment affirmed. - 13 - It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. NAHRA, J., AND PATTON, J. CONCUR PRESIDING JUDGE ANN DYKE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .