COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61211 GREGORY G. GEDETSIS, ET AL. : : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION ANTHONY ALLEGA CEMENT : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 3, 1992 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court No. CP-156001 JUDGMENT: AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee JOSEPH C. DeROSA Gregory G. Gedetsis: Wincek & Martello Co., L.P.A. 1500 Standard Building Cleveland, Ohio 44113 For Plaintiff-Appellee JOSEPH L. COTICCHIA Alex J. Rytell: 1640 Standard Building Cleveland, Ohio For Defendant-Appellant: JUDSON J. HAWKINS Kuepper, Walker, Hawkins & Chulick 618 Huntington Building 925 Euclid Avenue Cleveland, Ohio 44115 - 2 - KRUPANSKY, J.: The within case arose from a personal injury action in which plaintiffs-appellees Gregory G. Gedetsis, the driver, and Alex J. Rytell, the passenger, were injured in a one car accident. The jury returned a verdict of $75,000 for Gedetsis but also found him to be 30% negligent, thereby reducing his judgment to $52,500. An $8,000 verdict was returned in favor of the passenger. Rytell did not sue Gedetsis. Defendant-appellant Anthony Allega Cement Contractor, Inc. ("Allega") appeals from the judgment of the trial court awarding compensatory damages of $52,500 to Gedetsis and an order granting Alex J. Rytell a new trial limited to the issue of damages. Plaintiffs filed a complaint in the trial court following the one-car collision which occurred on the evening of July 18, 1988 at a road construction site maintained by defendant. Defendant was resurfacing the segment of Interstate 90 and Warren Road entrance ramp where the accident occurred pursuant to a contract with the Ohio Department of Transportation ("ODOT"). Plaintiffs alleged defendant failed to maintain proper or adequate traffic warning devices in the construction area. The case proceeded to a jury trial commencing October 11, 1990. Plaintiffs presented testimony from seven witnesses, viz., William Jackman, a professional traffic engineer; plaintiffs Gedetsis and Rytell; videotape medical testimony from doctors Blakemore, McDonald and Brooks; and by deposition as if on cross- - 3 - examination John R. Allega, president of defendant. The evidence demonstrated the construction scene where the accident occurred involved resurfacing the righthand side of the eastbound Warren Road entrance ramp and the righthand lanes of the highway prior to and following the entrance ramp. The construction site contained an excavation ditch between the lefthand side of the entrance ramp and the righthand lanes of the highway. The entrance ramp was lined with orange traffic barrels marked with reflectorized tape on the righthand side and a six inch curb on the left. Gedetsis testified he drove down the ramp at between 10 and 30 miles per hour while following a "Keep Left" sign before ultimately striking the six inch curb on the left and traveling into the adjacent excavation ditch. William Jackman testified that although the ODOT entrance ramp construction plans called for maintaining an eleven-foot-wide lane on the entrance ramp, which could have been done on this project, defendant's placement of the traffic barrels narrowed the Warren Road entrance ramp to eight feet. The evidence indicated defendant also did not erect a proper "taper sign" indicating the entrance ramp narrowed as it progressed toward the highway. As a result, the 77 inch wide Chrysler Cordoba driven by Gedetsis had a margin of only nine and one-half inches on each side of the car toward the end of the entrance ramp. Jackman testified defendant failed to exercise ordinary care in the placement of barrels on the entrance ramp - 4 - and around the excavation ditch. Plaintiffs rested their case after presenting testimony concerning the nature and extent of their injuries and the resulting medical expenses. Defendant presented testimony from four witnesses, viz., Edward Stinton, a photographer; Joseph Moran, the Ohio Department of Transportation district lighting engineer; Stephen Freiss, defendant's project general superintendent; and Richard Overmeyer, the City of Cleveland chief traffic engineer. The witnesses testified that the eleven-foot-wide lane was not required on the site, no requirement existed for placing barrels in the excavation ditch and the accident resulted from the negligence of Gedetsis. The trial court thereafter delivered its instructions and submitted the case to the jury. The jury returned a verdict in favor of plaintiffs. The trial court entered judgment upon the verdicts as follows: viz., (1) for Gedetsis in the net amount of $52,500 since the jury found Gedetsis 30% negligent, and (2) $8,000 in favor of Rytell. The trial court subsequently granted post-trial motions by Gedetsis to tax $2,457.55 in litigation costs against defendant and by Rytell for a new trial limited to the issue of damages. Defendant timely appeals raising four assignments of error. Defendant's first assignment of error challenges the trial court's rejection of its proposed jury instruction as follows: THE TRIAL COURT ERRED IN REFUSING TO INSTRUCT THE JURY ON ASSURED CLEAR DISTANCE, PURSUANT TO OHIO REVISED CODE 4511.21(A), WHERE THE OPERATOR OF A MOTOR VEHICLE TRAVELING THROUGH - 5 - A ROAD CONSTRUCTION AREA ADMITS HE SAW AN OBJECT IN HIS PATH OF TRAVEL WITH WHICH HE SUBSEQUENTLY COLLIDED. Defendant's first assignment of error lacks merit. Defendant contends the trial court failed to properly instruct the jury concerning the comparative negligence of Gedetsis by rejecting its proposed instruction concerning a motorist's duty to maintain an "assured clear distance ahead" pursuant to R.C. 4511.21(A). R.C. 4511.21(A) provides in pertinent part as follows: (A) No person shall operate a motor vehicle *** at a speed greater or less than is reasonable or proper, having due regard to the traffic, surface, and width of the street or highway and any other conditions, and no person shall drive any motor vehicle *** upon any street or highway at a greater speed than will permit him to bring it to a stop within the assured clear distance ahead. Defendant's proposed instruction stated as follows: 5. ASSURED CLEAR DISTANCE. A driver must not operate a vehicle at a greater speed than will permit him to bring it to a stop within the assured clear distance ahead. The assured clear distance ahead is the distance between the vehicle he is operating and a reasonably (discernible) (visible) (observable) object in his path of travel. It constantly changes and is measured at any moment by the distance between the driver and (the limit of his vision) (range of his headlights) (any reasonably (discernible) (visible) (observable) object ahead of him in his path of travel). 6. DISCERNIBLE OBJECT. A discernible object is a reasonably visible object. Any object is discernible when it is visible or can be detected or perceived. - 6 - The trial court properly rejected defendant's proposed instructions since defendant failed to demonstrate the instructions were supported by the evidence presented in the case. To warrant an assured clear distance instruction, the evidence presented by the parties must demonstrate the driver against whom the instruction is requested collided with an object which satisfies all of the following conditions, viz.: (1) [the object] was ahead of the driver and in his path of travel, (2) the object was stationary or moving in the same direction as the driver, (3) the object did not suddenly appear in the driver's path, and (4) the object which was struck was reasonably discernible. Junge v. Brothers (1985), 16 Ohio St. 3d 1, 475 N.E.2d 477 (Emphasis added). The Ohio Supreme Court has defined the term "ahead" in this context to mean "to the front of and within the directional line of travel of a motorist whose conduct allegedly violates the statute." Pallini v. Dankowski (1969), 17 Ohio St. 2d 51, syllabus paragraph one. Defendant has not cited any authority holding that a concrete barrier lining the left margin of the highway entrance ramp satisfies the first condition as being "ahead" of the driver in his "directional line of travel." Defendant does not dispute the trial court properly instructed the jury concerning the duty of Gedetsis to maintain reasonable speed and vehicle control. See Deffinbaugh v. Ohio Turnpike Commission (1990), 67 Ohio App. 3d 692. As a result, - 7 - under the circumstances defendant failed to demonstrate the trial court inadequately instructed the jury concerning the comparative negligence of Gedetsis. See Slavik v. Ohio Department of Transportation (1988), 44 Ohio App. 3d 19, 25. Accordingly, defendant's first assignment of error is overruled. Defendant's second assignment of error challenges the trial court's post-trial order taxing certain costs as follows: THE COURT ERRED IN AWARDING TO PLAINTIFF- APPELLEE COSTS WHICH WERE NOT NECESSARY AND VITAL LITIGATION EXPENSES. Defendant's second assignment of error is well-taken in part. Defendant argues the trial court improperly taxed $2,457.55 in costs, for various pretrial discovery depositions, video deposition transcription, and copies of records produced by plaintiff during depositions against defendant. Defendant argues such costs were neither necessary nor vital litigation expenses taxable pursuant to Civ. R. 54(D). The following test governs the allowance of properly taxable costs under Civ. R. 54(D): A determination of whether or not an expense will be allowed as a taxable cost under Civ. R. 54(D) requires a two-step analysis by the trial court. Jones v. Pierson (1981), 2 Ohio App.3d 447. The first step of the inquiry is to determine whether an expense is a taxable litigating expense or a personal expense. This is followed by a decision as to whether a litigating expense should be taxed as a cost in the particular case at bar. - 8 - Horne v. Clemens (1985), 25 Ohio App.3d 44, 46. In the above quote, the Jones Court explained the distinction between "personal" and "litigating" expenses under the first step of this analysis as follows: Ohio has long recognized that there exists a difference, for the purpose of awarding costs, between personal expenditures outlaid during litigation and litigating expenses. Personal expenses, which are not taxable as costs, are those expenses expended by a party in preparing a case for trial. Pope v. Pollock (1889), 46 Ohio St. 367. On the other hand, necessary litigating expenses are taxable costs pursuant to Civ. R. 54(D); that is, as much of the funds expended by a party as are necessary and vital to the litigation must be characterized as taxable costs which will normally be awarded to the prevailing party. Id. at 449. Plaintiff contends that all expenses incurred by a party in conducting depositions during the course of litigation constitute necessary and vital litigation expenses recoverable pursuant to Civ. R. 54(D). However, this Court has rejected such an expansive argument concerning the recovery of deposition expenses in Shipman v. Alamo Rent-A-Car, Inc. (1990), 70 Ohio App.3d 333. As in Shipman, supra, many of the deposition related expenses sought by plaintiff in the case sub judice, whether to record testimony or obtain records, are categorized as non-taxable personal expenses "expended by a party in preparing a case for trial." - 9 - Based upon our review of the record and invoices submitted by plaintiff in the case sub judice, we find the trial court properly awarded $451.30 for the deposition of John R. Allega and $388.00 and $400.70 for the video-tape and transcription charges for the deposition testimony of Doctors Blakemore and McDonald introduced at trial. However, the trial court improperly awarded the remaining $1,217.55 in expenses including those incurred in conducting the depositions of plaintiff Gedetsis; plaintiff's expert, Jackman; plaintiff's two ODOT employees; two witnesses concerning the lighting of the construction scene deposed by plaintiff; and a copy of defendant's deposition of Dr. Blakemore. These depositions were taken by plaintiff of plaintiff's own witnesses with the exception of the deposition of Dr. Blakemore taken by defendant. These kinds of materials are considered personal expenses in preparation for trial and not vital litigating expenses. Id. at 335. A copy of Dr. Blakemore's deposition is a personal expense to plaintiff and not a vital litigation expense since defendant paid for the deposition of Dr. Blakemore and the deposition was not introduced into evidence at trial. If plaintiff wishes to take his own deposition and depositions of his witnesses, a rather unusual procedure since he should already know what their testimony would be, the costs incurred are personal expenses and not taxable as costs. Such costs, according to Jones and Shipman, supra, particularly those incurred in conducting plaintiff's own deposition and those of - 10 - his own witnesses are personal expenses incurred by plaintiff in preparing his case for trial. The $272.50 in charges incurred by plaintiff to obtain copies of the Cleveland police accident report and photographs, ODOT and Northeastern Ohio Area Coordinating Agency traffic records, medical treatment records and plaintiff's employment and workers compensation records from a records deposition service are likewise non-taxable personal expenses. Copies of such records could have been obtained by plaintiff through alternate means at little or no cost rather than through a records deposition service and are not transformed into necessary and vital litigating expenses by incurring an obligation to pay a third party to obtain them. Accordingly, defendant's second assignment of error is well taken in part and the trial court's award of costs is reduced by the $1,217.55 in non-allowable costs to result in a net award of $1,240.00. The award of costs is modified to $1,240.00 and final judgment on this amount is hereby entered. Defendant's third and fourth assignments of error challenge the trial court's order granting Rytell a new trial as follows: III. THE TRIAL COURT ERRED IN FAILING TO SPECIFY IN WRITING THE GROUNDS UPON WHICH A NEW TRIAL WAS ORDERED ON ALEX RYTELL'S CLAIM FOR DAMAGES, AS REQUIRED BY RULE 59 OF THE OHIO RULES OF CIVIL PROCEDURE. IV. THE TRIAL COURT ERRS IN GRANTING A MOTION FOR A NEW TRIAL WHERE THERE IS EVIDENCE PRESENTED TO SUSTAIN A JURY - 11 - VERDICT IN AN AMOUNT LESS THAN REQUESTED BY THE PLAINTIFF. Defendant's third and fourth assignments of error are well- taken. Defendant argues the trial court improperly granted Rytell a new trial limited to the issue of damages without specifying sufficient grounds contrary to Civ. R. 59. The trial court's journal entry granting Rytell's motion for a new trial provides in pertinent part as follows: Upon due consideration thereof, the Court finds that said motion is well taken in that the amount of the verdict and the judgment thereon as to the damages is contrary to and against the manifest weight of the evidence and that the plaintiff, Alex J. Rytell, should be granted a new trial only as to the amount claimed for his damages; the jury having duly found that the defendant was negligent and the defendant's negligence was a proximate cause of injury to the plaintiff, Alex J. Rytell. Civ. R. 59(A) specifies the grounds for granting a new trial and provides in pertinent part as follows: When a new trial is granted, the court shall specify in writing the grounds upon which such new trial is granted. (Emphasis added). The Ohio Supreme Court has emphasized the necessity for complying with this requirement as follows: When granting a motion for a new trial based on the contention that the verdict is not sustained by the weight of the evidence, the trial court must articulate the reasons for so doing in order to allow a reviewing court to determine whether the trial court abused its discretion in ordering a new trial. (Emphasis added). - 12 - Antal v. Olde Worlde Products, Inc. (1984), 9 Ohio St.3d 144, syllabus. Merely stating that the verdict is "not sustained by the weight of the evidence," or is "against the manifest weight of the evidence" as in the case sub judice, is insufficient to comply with this requirement. Id. at 147. The Ohio Supreme Court has held that a trial court's failure to specify the basis for granting a new trial as in the case sub judice constitutes reversible error. Antal, supra; Accord Winson v. Fauth (1989), 63 Ohio App.3d 738. Accordingly, we reverse and remand this matter to the trial court in accordance with the mandate of the Ohio Supreme Court. Defendant correctly notes that a trial court abuses its discretion in granting a new trial on manifest weight of the evidence grounds when the jury's verdict is supported by substantial evidence, Verbon v. Pennesse (1982), 7 Ohio App.3d 182, and any alleged inadequacy of a verdict does not warrant a new trial unless the party demonstrates the verdict resulted from passion or prejudice. Halupka v. McFaul (Apr. 25, 1985), Cuyahoga App. No. 48996, unreported; Clough v. Zoverink (May 5, 1983), Cuyahoga App. No. 45072, unreported. However, we are unable to determine whether the trial court abused its discretion in granting a new trial since the trial court failed to adequately articulate its reasons for determining the $8,000 verdict was against the manifest weight of the - 13 - evidence. As a result, we are compelled to remand the case to the trial court to comply with Civ. R. 59. Antal, supra. Accordingly, defendant's third and fourth assignments of error are well taken and the trial court's order granting a new trial is vacated and the cause is hereby remanded for further proceedings. The judgment of the trial court in favor of Gedetsis in the amount of $52,500 for compensatory damages is affirmed and the award of costs is affirmed as modified to $1,240.00. The judgment of the trial court awarding Rytell a new trial is reversed and remanded for further proceedings consistent with this opinion. Judgment affirmed in part, reversed in part and remanded. Judgment accordingly. - 14 - It is ordered that each party is to pay its own 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, P.J., and JAMES D. SWEENEY, J., CONCUR JUDGE BLANCHE KRUPANSKY 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 journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. having duly found that the defendant was - 13 - negligent and the defendant's negligence was a proximate cause of injury to the plaintiff, Alex J. Rytell. Civ. R. 59(A) specifies the grounds for granting a new trial and provides in pertinent part as follows: When a new trial is granted, the court shall specify in writing the grounds upon which such new trial is granted. (Emphasis added). The Ohio Supreme Court has emphasized the necessity for complying with this requirement as follows: When granting a motion for a new trial based on the contention that the verdict is not sustained by the weight of the evidence, the trial court must articulate the reasons for so doing in order to allow a reviewing court to determine whether the trial court abused its discretion in ordering a new trial. (Emphasis added). Antal v. Olde Worlde Products, Inc. (1984), 9 Ohio St.3d 144, syllabus. Merely stating that the verdict is "not sustained by the weight of the evidence," or is "against the manifest weight of the evidence" as in the case sub judice, is insufficient to comply with this requirement. Id. at 147. The Ohio Supreme Court has held that a trial court's failure to specify the basis for granting a new trial as in the case sub judice constitutes reversible error. Antal, supra; Accord Winson v. Fauth (1989), 63 Ohio App.3d 738. Accordingly, we reverse and remand this matter to the trial court in accordance with the mandate of the Ohio Supreme Court. Defendant correctly notes that a trial court abuses its discretion in granting a new trial on manifest weight of the - 14 - evidence grounds when the jury's verdict is supported by substantial evidence, Verbon v. Pennesse (1982), 7 Ohio App.3d 182, and any alleged inadequacy of a verdict does not warrant a new trial unless the party demonstrates the verdict resulted from passion or prejudice. Halupka v. McFaul (Apr. 25, 1985), Cuyahoga App. No. 48996, unreported; Clough v. Zoverink (May 5, 1983), Cuyahoga App. No. 45072, unreported. However, we are unable to determine whether the trial court abused its discretion in granting a new trial since the trial court failed to adequately articulate its reasons for determining the $8,000 verdict was against the manifest weight of the evidence. As a result, we are compelled to remand the case to the trial court to comply with Civ. R. 59. Antal, supra. Accordingly, defendant's third and fourth assignments of error are well taken and the trial court's order granting a new trial is vacated and the cause is hereby remanded for further proceedings. The judgment of the trial court in favor of Gedetsis in the amount of $52,500 for compensatory damages is affirmed and the award of costs is affirmed as modified to $1,240.00. The judgment of the trial court awarding Rytell a new trial is reversed and remanded for further proceedings consistent with this opinion. Judgment affirmed in part, reversed in part and remanded. - 15 - Judgment accordingly. Judgment accordingly. It is ordered that each party is to pay its own 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, P.J., and JAMES D. SWEENEY, J., CONCUR JUDGE BLANCHE KRUPANSKY 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 journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .