COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68365 : JOHN G. CINDRIC, JR. : : : JOURNAL ENTRY Plaintiff-Appellee : : and v. : : OPINION EDGEWATER YACHT CLUB OF CLEVELAND, : ET AL. : : Defendants-Appellants : : : DATE OF ANNOUNCEMENT OF DECISION: MAY 2, 1996 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-264564 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendants-Appellants: KENNETH P. ABBARNO, ESQ. TIMOTHY M. BITTEL, ESQ. NICHOLAS D. SATULLO, ESQ. JEFFREY L. KOBERG, ESQ. REMINGER & REMINGER ZIEGLER, METZGER, & MILLER The 113 St. Clair Building 2020 Huntington Building Suite 700 925 Euclid Avenue Cleveland, Ohio 44114 Cleveland, Ohio 44115-1441 - 2 - KARPINSKI, J.: Defendants-appellants, Edgewater Yacht Club ("Edgewater") and Denise Dorricott, appeal from the jury verdict in favor of plaintiff-appellee, John G. Cindric, Jr. ("plaintiff"). On appeal, Edgewater raises the following questions: (1) whether the trial court properly denied defendant's motion for a directed verdict, (2) whether the jury verdict was against the manifest weight of the evidence, (3) whether the jury instructions were proper, and (4) whether the trial court committed reversible error when it excluded evidence concerning plaintiff's past criminal record and employment history. As a cross-appeal, plaintiff assigns as error, the trial court's denial of his motion for prejudgment interest and the trial court's partial denial of his motion to tax costs. For the following reasons, we find no merit to any assignments of error and affirm the judgment of the trial court. Edgewater, a yacht club located on Edgewater Beach in Cleveland, employed plaintiff as dishwasher/busboy. His supervisor was Denise Dorricott. On October 7, 1990, the club was providing a "hot buttered rum" drink at a pavilion located just north of the clubhouse. The party required hot water which had to be transported approximately 300 feet from the clubhouse to the pavilion. The task fell upon three persons: plaintiff, Dorricott, and Michael Dickinson, another Edgewater employee. - 3 - The hot water was contained in a kettle filled to within three inches of the top. The parties dispute whether a lid was placed on the kettle. Dorricott told plaintiff and Dickinson to place the kettle in her car in order to transport it to the pavilion. Plaintiff testified that when he expressed concern about the possibility of spillage, Dorricott responded by ordering, "Get your ass in the car or you are fired." Dorricott's car is a Chevrolet Sprint hatchback and the back seat was folded down. Plaintiff and Dickinson placed the kettle in the "center forward area of the hatch, between the passenger's seat and the driver's seat." Plaintiff and Dickinson rode in the back area holding the kettle. Dorricott drove the car across the parking lot to the pavilion. This parking lot was bumpy and filled with potholes and rocks. As Dorricott turned and put on the brakes, half of the boiling water spilled onto plaintiff's leg. Plaintiff testified that even though he was screaming in pain, Dorricott instructed him and Dickinson to carry the remaining water up the stairs to the pavilion. When plaintiff was able to enter the bathroom and remove his pants, a portion of his skin fell to the floor and he observed the raw tissue and nerve endings of his leg. Dorricott denied making threats to plaintiff and Dickinson that they would be fired if they did not get in the car with the pot of water. She also testified that she saw another worker place a lid on the pot. This testimony conflicted with her - 4 - deposition in which she stated that she placed the lid on the kettle herself. Plaintiff was taken by ambulance to the hospital, where he was treated for the burns. He had to be treated at the hospital twice a week for a month. As a result of this injury, plaintiff alleged that he was unable to complete his health class and had to repeat the entire twelfth grade. Plaintiff filed a complaint for intentional tort against Edgewater, and the case proceeded to trial. Edgewater moved for a directed verdict at the close of plaintiff's opening statement, at the close of plaintiff's evidence, and again at the close of all the evidence. Each of these motions for directed verdict was denied by the trial court. The case was submitted to the jury, which returned a verdict in the amount of $50,000 for plaintiff. The jury also found that plaintiff was not entitled to punitive damages or attorney's fees. Plaintiff filed a motion for prejudgment interest, which the trial court denied. The trial court additionally granted in part and denied in part plaintiff's motion to tax costs. Edgewater timely appealed raising five assignments of error, which state as follows: I. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANTS WHEN IT FAILED TO GRANT DEFENDANTS' MOTIONS FOR A DIRECTED VERDICT. II. THE VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE BECAUSE THERE WAS NO "COMPETENT CREDIBLE EVIDENCE GOING TO ALL OF THE ELEMENTS" OF PLAINTIFF- EMPLOYEE'S CLAIM, AND THEREFORE, SHOULD BE REVERSED. III. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANTS WHEN IT REFUSED TO CHARGE THE JURY THAT, WHEN DETERMINING THE ISSUE OF WHETHER PLAINTIFF- - 5 - EMPLOYEE'S SUPERVISOR, MS. DORRICOTT, KNEW THAT INJURY TO PLAINTIFF WAS SUBSTANTIALLY CERTAIN TO RESULT, IT SHOULD CONSIDER EVIDENCE THAT MS. DORRICOTT HAD SUBJECTED HERSELF TO THE SAME RISK. IV. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANTS WHEN IT REFUSED TO CHARGE THE JURY THAT IT COULD TAKE INTO CONSIDERATION THE LACK OF PRIOR ACCIDENTS WHEN DETERMINING WHETHER DEFENDANTS KNEW THAT INJURY TO PLAINTIFF WAS SUBSTANTIALLY CERTAIN TO RESULT. V. THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANTS WHEN IT EXCLUDED EVIDENCE CONCERNING PLAINTIFF'S ADMITTED THEFT FROM DEFENDANT EDGEWATER YACHT CLUB AND THE FACT THAT HE WAS FIRED FROM HIS EMPLOYMENT BECAUSE OF THAT THEFT. The first assignment concerns the trial court's denial of Edgewater's three motions for directed verdict at the close of plaintiff's opening statement, at the close of plaintiff's evidence, and at the close of all the evidence. A motion for directed verdict is to be granted when, construing the evidence most strongly in favor of the party opposing the motion, the trial court finds that reasonable minds could come to only one conclusion and that conclusion is adverse to such party. Civ.R. 50(A)(4); Crawford v. Halkovics (1982), 1 Ohio St.3d 184, 185-186, 1 OBR 213, 214, 438 N.E.2d 890, 892. The Limited Stores, Inc. v. Pan American World Airways, Inc. (1992), 65 Ohio St.3d 66, at 73. A motion for directed verdict will be granted only if the evidence, when strongly construed in favor of the nonmoving party, does not constitute a cause of action. Howard v. Columbus Prod. Co. (1992), 82 Ohio App.3d 129. In the case at bar, the trial court correctly denied the motions for directed verdict, because plaintiff did produce evidence to establish an intentional tort. A workplace intentional tort requires proof that the employer either - 6 - specifically desired to injure the employee or knew that injury to the employee was substantially certain to result from the employer's act. Jones v. VIP Development Co. (1984), 25 Ohio St.3d 90. "[T]he fact that the employer should have known it was requiring the employee to work under such dangerous conditions that he would certainly be injured is not enough to establish a case in intentional tort. Rather, the determination rests upon a claimant's alleging facts which show the employer's actual knowledge of the situation." Fultz v. Baja Boats, Inc. (Feb. 18, 1994), Crawford App. No. 3-93-10, unreported. The Ohio Supreme Court has further defined what must be proved to establish intent on the part of the employer as follows: Within the purview of Section 8(A) of the Restatement of the Law 2d, Torts, and Section 8 of Prosser & Keeton on Torts (5 Ed 1984), in order to establish "intent" for the purpose of proving the existence of an intentional tort committed by an employer against his employee, the following must be demonstrated: (1) knowledge by the employer of the existence of a dangerous process, procedure, instrumentality or condition within its business operations; (2) knowledge by the employer that if the employee is subjected by his employment to such dangerous process, procedure, instrumentality or condition, then harm to the employee will be a substantial certainty; and (3) that the employer, under such circumstances, and with such knowledge, did act to require the employee to continue to perform the dangerous task. (Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St. 3d 100, 522 N.E. 2d 489, paragraph 5 of the syllabus, modified as set forth above and explained.) Fyffe v. Jeno's Inc. (1991), 59 Ohio St.3d 115, paragraph one of the syllabus. Moreover, as this court has stated, "[t]he focus - 7 - of an intentional tort action under the standards set forth in Van Fossen is on the knowledge of the employer regarding the risk of injury." Youssef v. Parr (1990), 69 Ohio App.3d 679, at 687. In the case at bar, plaintiff has produced evidence to establish the requisite level of knowledge on the part of Edgewater that injury was substantially certain to occur. Dorricott, Edgewater's employee, knew that if the water from the kettle splashed on anyone it was hot enough to burn. She testified at trial as follows: Q. You knew that the water would burn somebody if it landed on them, right? A. It was hot because--yes, I am sure it would. (Tr. 98.) Furthermore, plaintiff testified that Dorricott ordered him to sit next to the uncovered kettle while she drove across the parking lot or he would be fired. Plaintiff testified as follows: Q. All right. At any time did you object to transporting the water across the parking lot in that fashion: A. Yes. Me and Michael, both, objected from the very start. Q. What did you say? A. "Isn't there an easier way that we can get this across the parking lot, because it is going to spill?" Q. Did Miss Dorricott respond to you: - 8 - A. Yeah. Q. What did she say: A. "Put it in the car or you are fired." Q. Did she say that more than once? A. Yes. Q. Did you specifically tell her that the water would spill? A. Yes, I did. Q. Why don't you tell us what happened next? A. Okay. She had told us: "Put the pot in the car, or you are fired." (Tr. 53.) Dickinson corroborated this testimony. Q. Okay. Can you tell me everything that she told you? A. Yeah. "Pick the pot up and put it in that car." And she told us to get in the back of the car. I told her, "No, I ain't going to get in it. I am not going to get in the back of the car." And she told me if I didn't get in the car to hold the water, I was fired then. (Tr. 138-139.) Moreover, Bob Nash, the general manager of Edgewater Yacht Club testified that Dorricott had a tendency to bully employees with "vulgar language, finger pointing in their faces, and threats to fire them." It was uncontroverted that the lot was bumpy and had many potholes. Dorricott's testimony acknowledged and common sense confirms that an uncovered pot of water filled nearly to the top is likely to spill when transported over a bumpy parking - 9 - lot. Viewing this evidence in a light most favorable to plaintiff as required by Civ.R. 50, we conclude plaintiff has presented sufficient evidence to overcome the motions for directed verdict. Accordingly, the first assignment of error is overruled. The second assignment of error raises the issue of whether the jury verdict in favor of plaintiff is contrary to the manifest weight of the evidence. Generally, judgments supported by some competent, credible evidence going to all the essential elements of the case will not be reversed by a reviewing court as being against the manifest weight of the evidence. C.E. Morris Co. v. Foley Const. Co. (1978), 54 Ohio St.2d 279. Additionally, a verdict will be reversed as against the manifest weight of the evidence "only when the verdict is so manifestly contrary to the natural and reasonable inferences to be drawn from the evidence as to produce a result in complete violation of substantial justice ***." Royer v. Bd. of Edn. (1977), 51 Ohio App.2d 17, 20. Finally, "[w]here there is a conflict of evidence, the jury is to resolve the conflict. State v. Walker (1978), 55 Ohio St. 208 [9 O.O.3d 152]." Avon Lake v. Anderson (1983), 10 Ohio App.3d 297, 300. In the case at bar, the following testimony was uncontro- verted: the water was extremely hot, the parking lot was bumpy, plaintiff sat directly next to the kettle as the water was transported across the parking lot, and the water spilled on plaintiff's legs causing severe burns. Two major facts were disputed: whether Dorricott threatened to fire plaintiff and - 10 - whether a lid was on the kettle. Plaintiff and Dickinson testified that Dorricott threatened to fire them if they did not get in the car with the hot water. Although she denied this threat, her manager testified that Dorricott often threatened to fire employees. Regarding the lid, plaintiff and Dickinson testified that the kettle did not have a lid on it. Dorricott testified that the lid was in place. However, at trial she testified she placed the lid on the kettle herself whereas in her deposition she stated that another employee placed the lid on the kettle. Because of the uncontroverted facts, the corroboration by Dickinson, and the inconsistency in Dorricott's testimony, we conclude the judgment was supported by some competent, credible evidence. Defendant's argument that the verdict was against the manifest weight of the evidence, therefore, fails. The third and fourth assignments argue that the trial court committed reversible error by failing to instruct the jury that (1) there had been no prior accidents of this type and (2) Dorricott was subject to the same risks as plaintiff. Generally, "requested instructions should be given if they are correct statements of the law applicable to the facts in the case and reasonable minds might reach the conclusion sought by the instruction." Murphy v. Carrollton Mfg. Co. (1991), 61 Ohio St.3d 585, at 591. The proposed instruction relating to the absence of prior accidents was properly not given, because it is not a correct statement of the law. Nothing in Ohio law requires prior - 11 - accidents to establish that an injury is foreseeable. Conversely, the absence of prior accidents does not deny foreseeability. This court reaffirmed this proposition in Cook v. Cleveland Electric Illum. Co. (1995), 102 Ohio App.3d 417. In Cook this court rejected an employer's argument that it was not liable under an intentional tort because there had been no prior accidents of that type: Rather, the focus of the substantial certainty test set forth in Fyffe is not only how often the accident will occur but also the employer's knowledge of the certainty of death or injury to employee when an accident does occur. *** There is no dispute that there were no previous accidents relating to the power transfer system; nonetheless, we are not convinced that the lack of previous accidents is enough to prove that appellee did not have knowledge of the dangerous nature of the transfer system. The appreciation of danger can be obtained in a myriad of ways other than personal knowledge or previous injuries. Simply because people are not injured, maimed or killed every time they encounter a device or procedure is not solely determinative of the question of whether that procedure or device is dangerous and unsafe. If we were to accept the appellee's reasoning, it would be tantamount to giving every employer one free injury for every decision, procedure or device it decided to use, regardless of the knowledge or substantial certainty of the danger that the employer's decision entailed. This is not the purpose of Fyffe. It is not required that one be burned before one knows not to play with fire. Cook at 429-430. Additionally, the proposed instruction regarding Dorricott being exposed to the same risk was also properly not given. The facts of the case did not reveal that Dorricott was exposed to the same risk as plaintiff. Plaintiff was sitting in the back hatch of the car and stabilizing the uncovered kettle. Dorricott was in the front seat, which provided her protection from the - 12 - scalding water. She was not directly next to the kettle as plaintiff was. Accordingly, the trial court did not err by not giving these two jury instructions. The fifth assignment of error argues that the trial court committed reversible error by excluding evidence concerning plaintiff's employment history at Edgewater. Generally, an appellate court will not reverse a trial court's ruling on the admissibility of evidence absent a showing of abuse of discretion. O'Brien v. Angley (1980), 63 Ohio St.2d 159. The term abuse of discretion connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217. Edgewater proffered evidence in the form of testimony from Nash that plaintiff was fired for allegedly stealing from Edgewater. Edgewater contends it should have been allowed to introduce this testimony under Evid.R. 608(B) to show plaintiff's lack of truthfulness. Ohio Evid.R. 608(B), which is more stringent than its Federal counterpart, allows the admission of this impeachment evidence only if the evidence is "clearly" probative of truthfulness or untruthfulness. See Staff Notes 1 Evid.R. 608(B). In the case at bar, evidence of a theft , whether alleged or admitted, is not probative--and certainly not "clearly" probative 1 In his motion in limine plaintiff denied this allegation. - 13 - --on the issue of plaintiff's truthfulness (that is, a theft does not necessarily involve the telling of a falsehood). To explore the motive for plaintiff's lawsuit, Edgewater further argues that it should have been permitted, under Evid.R. 616, to cross-examine plaintiff about his termination. However, because the jury was already aware of plaintiff's obvious self- interest in trying to recover damages for his injury, there is little probative value in testimony that plaintiff might have been additionally motivated by revenge. Furthermore, for evidence to be admitted under either 608(B) or 616, the court must also find, under Evid.R. 403, that the probative value of the evidence is substantially outweighed by unfair prejudice or the potential to mislead the jury. Shimola v. Cleveland (1992), 89 Ohio App.3d 505. In the case at bar, the trial judge properly anticipated that testimony about this prior act could have unduly prejudiced the jury against the plaintiff. Balanced against this prejudice, on the other hand, is testimony not clearly probative of untruthfulness and of only minimal value to show an additional motive of bias. More importantly, in order to warrant a reversal, the record must affirmatively show not only error, but error that is prejudicial to the party seeking reversal. Gries Sports Enterprises, Inc. v. Cleveland Browns Football Co. (1986), 26 Ohio St.3d 15, 28. Appellants must "establish more than just a mere possibility of prejudice." Tirpak v. Weinberg (1986), 27 Ohio App.3d 46, 51. Appellants have failed to meet this burden - 14 - in the case at bar. Even if the jury wholly disregarded what plaintiff said, the outcome would not have been affected because the jury still had the testimony from Dickinson, who corroborated plaintiff's entire testimony. Therefore, we find the trial court did not abuse its discretion by excluding the proffered evidence. The fifth assignment is overruled. Plaintiff's two cross-assignments of error state as follows: I. THE TRIAL COURT ERRED IN DENYING PLAINTIFF'S MOTION FOR PREJUDGMENT INTEREST. II. THE TRIAL COURT ERRED IN DENYING IN PART PLAINTIFF'S MOTION TO TAX COSTS. In the first cross-assignment, plaintiff argues that the trial court erred by not granting his motion for prejudgment interest. Revised Code 1343.03, which provides for such an award, states as follows: Interest on a judgment, decree, or order for the payment of money rendered in a civil action based on tortious conduct and not settled by agreement of the parties, shall be computed from the date the cause action accrued to the date on which the money is paid, if, upon motion of any party to the action, the court determines at a hearing held subsequent to the verdict or decision in the action that the party required to pay the money failed to make a good faith effort to settle the case and that the party to whom the money is to be paid did not fail to make a good faith effort to settle the case. The Ohio Supreme Court has set forth four criteria to determine whether a party has made a good faith effort to settle. In Kalain v. Smith (1986), 25 Ohio St.3d 157, the court stated as follows: A party has not "failed to make a good faith effort to settle" under R.C. 1343.03(C) if he has (1) fully cooperated in discovery proceedings, (2) rationally - 15 - evaluated his risk and potential liability, (3) not attempted to unnecessarily delay any of the proceedings, and (4) made a good faith monetary settlement offer or responded in good faith to an offer from the other party. If a party has a good faith, objectively reasonable belief that he has no liability, he need not make a monetary settlement offer. Additionally, a trial court's decision whether or not to award prejudgment interest will not be reversed absent an abuse of discretion. Kalain, at 159. In the case at bar, plaintiff has not demonstrated an abuse of discretion on the part of the trial court. On three occasions Edgewater made settlement offers of $3,000.00, $3,000.00, and $7,500.00, respectively. The first two offers covered plaintiff's medical expenses, and the third went beyond. Rejecting these proposals, plaintiff stated his demand was $85,000.00. The jury awarded him $50,000.00. As stated in Kalain, supra, a party that has a good faith belief that he has no liability need not make any monetary offer. Moreover, plaintiff has not made any showing that Edgewater unnecessarily delayed any proceedings or frustrated any discovery requests. Having found no abuse of discretion on the part of the trial court, we affirm the denial of plaintiff's motion for prejudgment interest. Finally, plaintiff alleges that the trial court erred by partially denying his motion to tax costs. Plaintiff argues that he is entitled to costs for depositions (items 2, 3, 7, 8, 9, 12, 13, 15, 17, and 18), expert witness fees (items 5, 6, and 11), and a medical expense (item 10). - 16 - Civil Rule 54(D) covers costs and states as follows: Costs. Except when express provision therefor is made either in a statute or in these rules, costs shall be allowed to the prevailing party unless the court otherwise directs. The Ohio Supreme Court in Vance v. Roedersheimer (1992), 64 Ohio St.3d 552, held that absent explicit statutory authorization, litigation expenses may not be taxed as costs. Relying upon Vance, this court has specified that deposition costs cannot be taxed as costs. Wiltsie v. Teamor (1993), 89 Ohio App.3d 380, at 388. This court has also addressed the other two categories of items. We previously declined to tax expert witness fees as costs in Vassil v. Able Fence & Guardrail, Inc. (1992), 81 Ohio App.3d 533. Additionally, medical expenses cannot be taxed as costs. Miller v. Gustus (1993), 90 Ohio App.3d 622. Accordingly, the trial court did not err in denying, in part, plaintiff's motion to tax costs. Plaintiff's two cross-assignments of error are overruled. Judgment affirmed. - 17 - It is ordered that appellee recover of appellant his 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. HARPER, P.J., and McMONAGLE, J., CONCUR. DIANE KARPINSKI JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement 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 .