COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69523 DOROTHY M. TEXLER, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION D.O. SUMMERS CLEANERS & SHIRT : LAUNDRY COMPANY, : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION : NOVEMBER 27, 1996 CHARACTER OF PROCEEDING : Civil appeal from : Common Pleas Court : Case No. 260856 JUDGMENT : REVERSED; JUDGMENT ENTERED : FOR DEFENDANT. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: Lester S. Potash 2000 Illuminating Building 55 Public Square Cleveland, Ohio 44113-1901 Richard E. Stone 24100 Chagrin Boulevard Suite 330 Beachwood, Ohio 44122 For defendant-appellant: James L. Glowacki James J. Imbrigiotta Christopher R. Claflin GLOWACKI & ASSOCIATES 510 Leader Building 526 Superior Avenue Cleveland, Ohio 44114 -3- NAHRA, J.: Appellant, D.O. Summers Cleaners & Shirt Laundry Company ("Summers"), appeals from a civil judgment rendered against it in favor of appellee, Dorothy Texler ("Texler"). Texler cross- appeals seeking costs and prejudgment interest. The material facts are not in dispute. Texler owned and operated a photography studio located in a Solon shopping complex. Summers operated a dry cleaning service in the same complex. On August 21, 1993, Texler and a co-worker, Dorothy Rule ("Rule"), left work to have lunch. Texler and Rule walked towards the Imperial Wok Chinese Restaurant which was located at the opposite end of the complex. The short walk to the Imperial Wok took Texler past Summers business. As was customary on hot summer days, Summers had propped open a service door ventilating its work area. The door was propped open perpendicular to the sidewalk on which Texler walked. A five gallon plastic bucket filled with concrete served as the door prop. This bucket extended beyond the edge of the door and the concrete extended beyond the edge of the bucket; each further blocked the sidewalk. As Texler and Rule walked past Summers, Texler tripped on either the door, the bucket, or the concrete. She sustained severe injuries. The evidence presented at trial established that Texler and Rule regularly ate at the Imperial Wok and frequently walked past Summers. Rule testified that the door was normally propped open in the summer. Rule stated that she noticed the bucket approximately -4- forty feet before they reached the door on the day of the incident. According to Rule, nothing obstructed her view of the bucket and nothing made it less obvious as they approached. Appellee testified that she too was familiar with Summers' practice of propping open the door. She admitted that she saw the bucket from approximately forty feet away. She testified that she would have seen the bucket again had she looked where she was walking; she stated that she never looked down. Both Texler and Rule testified that the bucket was obvious. At trial, and prior to submission of the case to the jury, Summers moved for judgment pursuant to Civ.R. 50(A). The trial court denied this motion. The jury returned a verdict in favor of appellee. Despite clear and uncontroverted evidence establishing Texler's negligence, the jury found no comparative negligence and awarded her one-hundred percent of the damages. The trial court then denied Summers' motions for judgment notwithstanding the verdict and for a new trial. Appellant assigns error, inter alia, to the trial court's denials of its Civ.R. 50 motions. I. We resolve the instant appeal on appellant's third and forth assignments of error which state: III. THE TRIAL COURT ERRED IN NOT DIRECTING A VERDICT IN FAVOR OF THE DEFENDANT/APPELLANT OF THE ISSUE OF COMPARATIVE FAULT. IV. THE TRIAL COURT ERRED IN NOT DIRECTING A VERDICT IN FAVOR OF D.O. SUMMERS BECAUSE THE PLAINTIFF/APPELLEE FAILED TO ESTABLISH A PRIMA FACIE CASE OF ACTIONABLE NEGLIGENCE. -5- The standard for reviewing a trial court's ruling on either a motion for directed verdict, or for judgment notwithstanding the verdict, is essentially the same. In each instance, the evidence is construed most strongly in favor of the [non-movant], and the motion must be overruled unless from the evidence so construed reasonable minds could reach no other conclusion but that, under the applicable law, the movant is entitled to a judgment in his favor. Sharp v. Mr. C's Charter Service Co. (Dec. 14, 1995), Cuyahoga App. No. 67738, unreported (emphasis sic), quoting, Rayburn v. J.C. Penny Outlet Store (1982), 2 Ohio App.3d 463. As elements of its negligence action, plaintiff established both duty and breach of duty on appellant's part by demonstrating Summers' violation of Solon Municipal Ordinance 660. However, because of plaintiff's own lack of due care, judgment should have been rendered for Summers as a matter of law. A court can award judgment to a defendant where it finds that the plaintiff's negligence exceeded the defendant's. Junge v. Brothers (1985), 16 Ohio St.3d 1, 4, 16 OBR 254, 475 N.E.2d 477. Indeed, this court in Purpera v. Asamoto (June 22, 1995), Cuyahoga App. No. 67917, unreported, stated that judgment as a matter of law may be grounded in proof of sufficient contributory negligence. [J]udgment may be granted to defendants in a negligence suit where, after construing the undisputed evidence most strongly in favor of plaintiff, a reasonable person could only conclude that the contributory negligence of the plaintiff was greater that [sic] the combined negligence of the defendants. -6- Id. (construing the propriety of granting summary judgment). Moreover, in Mowery v. McCracken (Aug. 31, 1987), Hancock App. No. 5-85-33, unreported, the court observed: [J]udgment is properly granted in favor of the defendant in a comparative negligence case where the court can make any one of the following determinations as a matter of law: either, (1) the defendant was not negligent; or (2) the defendant's negligence, if any, was not the proximate cause of plaintiff's injury (such as where the plaintiff's own negligence was the sole proximate cause of the injury) or (3) the plaintiff's own negligence (considering factors of assumption of the risk, if any), outweighed any negligence of the defendant under R.C. 2315.19. (Emphasis sic.) Accord Motorists Mut. Ins. Co. v. Rockwell (1990), 69 Ohio App.3d 159, 590 N.E.2d 306; Shope v. Harlan Telephone Co. (Dec. 9, 1991), Warren App. No. CA90-12-082, unreported. The instant appeal presents a case where the plaintiff's negligence so outweighed defendant's, that the trial court should have granted judgment to defendant on one of two grounds. The record reveals that the following facts were uncontroverted in this case: 1) for several years appellee had walked "numerous" times from her place of business past appellant's side door to go to the Chinese restaurant for lunch; 2) appellee was aware that in the summer months appellant's side door was often propped open with some object; 3) it was a bright, sunny day and appellee did not remember any obstructions to her vision as she walked; 4) appellee admitted that she saw that appellant's door was propped open with a bucket; 5) the bucket was "obvious"; 6) appellee would have seen the bucket again, as she approached the door, if she had "looked"; but 7) appellee did not look at it again. -7- The foregoing facts demonstrate two things. First, appellee's lack of concern for her own safety was the proximate cause of her accident. See, Raflo v. Losantiville Country Club (1973), 34 Ohio St.2d 1, 295 N.E.2d 202; cf. Perry v. Eastgreen Realty Co. (1978), 53 Ohio St.2d 51, 372 N.E.2d 335. It is fundamental that proximate cause exists only where an injury is a natural and foreseeable result of defendant's negligence. Dubecky v. Horvitz Co. (1990), 64 Ohio App.3d 726, 735, 582 N.E.2d 1087. An injury that could not have been foreseen or reasonably anticipated as the probable result of an act of negligence is not actionable. Id., quoting Foss-Schneider Brewing Co. v. Ulland (1918), 97 Ohio St. 210. Both Texler and Rule testified that the bucket was obvious. Where a danger is open and obvious, a defendant may reasonably expect that persons will discover and protect themselves against the danger. Parsons v. Lawson Co. (1989), 57 Ohio App.3d 49, 51-2, 566 N.E.2d 698; Lawson v. Columbia Gas of Ohio, Inc. (1984), 20 Ohio App.3d 208, 209, 485 N.E.2d 837. Accordingly, appellant could not reasonably have foreseen that in broad daylight appellee would trip over a five-gallon bucket which, in plain view, was propping open its large, blue metal side door. Second, based on the evidence, a reasonable person could conclude only that appellee's negligence outweighed any negligence of appellant. See, e.g., Raflo v. Losantiville Country Club (1973), 34 Ohio St.2d 1; Anderson v. Ruoff (1995), 100 Ohio App.3d 601, 654 N.E.2d 449. Texler testified on cross-examination that having previously seen the bucket, she neglected to look at it -8- again despite the fact that the door and bucket covered over half of the sidewalk upon which she and Rule walked side by side. Q. Ma'am, my question was: Isn't it a fact, ma'am, that if you had looked, you would have seen the bucket, correct? A. Yes, if I would have looked down. Q. And you'll agree that if you would have looked, you wouldn't have fallen, correct? A. Yes. Plaintiff's testimony describes conduct manifesting a lack of due care which was greatly in excess of any negligence attributable to Summers. Any other conclusion suggests that a plaintiff with knowledge of an obvious danger can simply ignore the danger and proceed without caution. Such a position is contrary to law. Raflo, supra. The foregoing analysis is not rendered inapposite because appellant's conduct may have constituted negligence per se. Negligence per se is not liability per se. Reschke v. Merola Ent. Inc. (Sept. 3, 1992), Cuyahoga App. No. 60957, unreported. Rather, the plaintiff's negligence must be weighed against that of the defendant. Id. Proximate cause must still be demonstrated. Appellant's claim remains defective on each ground. Texler contends that she did not fully appreciate the danger presented by the bucket because the concrete jutting out of the bucket was non-obvious. This argument fails for two reasons. First, the record is devoid of any evidence demonstrating exactly what caused Texler's fall. Pure speculation cannot provide -9- proximate cause. The absence of any evidence establishing a causal connection between the concrete and the injury renders plaintiff's argument fatally defective. Second, the door was open and obvious. Texler admitted that the bucket, visible from at least forty feet away, was open and obvious. There was no evidence the concrete in the bucket, in the same location and under identical viewing conditions was not equally obvious. The proximate cause of plaintiff's injuries was her failure, in broad daylight, to avoid what was open and obvious and what she admitted seeing before her fall from about 40 feet away. Accordingly, the trial court should have granted appellant's motions for directed verdict or judgment notwithstanding the verdict. Appellant's third and fourth assignments of error are sustained. The remaining assignments of error are dismissed as moot. -10- This cause is reversed and judgment entered for defendant. It is, therefore, considered that said appellant recover of said appellee its costs herein. It is ordered that a special mandate be sent to said 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. BLACKMON, P.J., CONCURS. O'DONNELL, J., DISSENTS. (See attached dissenting JOSEPH J. NAHRA opinion.) JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69523 : DOROTHY M. TEXLER, : : : DISSENTING Plaintiff-Appellee : : OPINION vs. : : : D.O. SUMMERS CLEANERS & SHIRT : LAUNDRY COMPANY, : : Defendant-Appellant : : DATE: NOVEMBER 27, 1996 O'DONNELL, J., DISSENTING: The facts in this case are relatively uncomplicated. Dorothy Texler fractured her right arm and wrist when she tripped over a five-gallon plastic bucket filled with chunks of concrete which D.O. Summers placed in the middle of the sidewalk as a doorstop to hold open the door of its business. As a result of a jury trial conducted on this premise liability case, the jury found the total amount of damages to be $75,000 and further found, on the issue of comparative negligence, that appellant, D.O. Summers, was 100% negligent and that this negligence was a proximate cause of appellee's injuries. -2- Because I believe that the issues of negligence, comparative negligence and proximate cause were resolved by the jury on proper instructions, I dissent. Appellant's third, fourth, and fifth assignments of error relate to these issues: III. THE TRIAL COURT ERRED IN NOT DIRECTING A VERDICT IN FAVOR OF THE DEFENDANT/APPELLANT ON THE ISSUE OF COMPARATIVE FAULT. IV. THE DEFENDANT/APPELLANT, D.O. SUMMERS WAS ENTITLED TO A DIRECTED VERDICT AND/OR JUDGMENT NOTWITH- STANDING THE VERDICT BECAUSE THE PLAINTIFF FAILED TO ESTABLISH A PRIMA FACIE CASE OF ACTIONABLE NEGLIGENCE. V. THE TRIAL COURT ABUSED IS DISCRETION IN NOT GRANTING THE DEFENDANT/APPELLANT'S MOTION FOR A NEW TRIAL. I differ from the majority in its statement that, "The instant appeal presents a case where the plaintiff's negligence so outweighed defendant's, that the trial court should have granted judgment to the defendant ***" and its conclusions that, "First, appellee's lack of concern for her own safety was the proximate cause of her accident", and "Second, based on the evidence, a reasonable person could conclude only that appellee's negligence outweighed any negligence of appellant." I believe that where genuine issues of material fact exist, the trial court is precluded from entering a summary judgment and -3- here properly submitted questions of comparative negligence and proximate cause to the jury for resolution. The syllabus of Eichorn v. Lustig's Inc. (1954), 161 Ohio St. 11, states: An owner of property abutting on a public street is not liable for injuries to pedestrians resulting from defects in the abutting portion of such street unless such defects are created or negligently maintained or permitted to exist by such owner for his own private use or benefit. In that case, the court stated at 14, Negligent conduct on the part of an abutting property owner as to the existence of a defective sidewalk in front of his property will not be presumed but must be proven by affirmative evidence. Such evidence must necessarily show that the use of the sidewalk which brought about its disrepair was expressly or impliedly authorized by such owner. In Crowe v. Hoffman (1983), 13 Ohio App.3d 254, the headnote reads: 1. An owner of property abutting a public sidewalk is not liable to a pedestrian for injuries proximately caused by a defective or dangerous condition therein unless: (a) a statute or ordinance imposes on such owner a specific duty to keep the sidewalk adjoining his property in good repair; (b) by affirmative acts such owner creates or negligently maintains the defective or dangerous condition; or, (c) such owner negligently permits the defective or dangerous condition to exist for some private use of benefit. The evidence presented at trial supports all three bases upon which to impose liability upon appellant D.O. Summers: -4- appellant violated the Solon ordinance by blocking the sidewalk with the bucket; appellant voluntarily chose to use the concrete and bucket as a doorstop; and appellant maintained the open-door bucket condition for its own private purpose -- to ventilate its premises. Further, the majority agrees that appellee Texler established negligence per se. The majority opinion states in part, "As elements of its negligence action, plaintiff established both duty and breach of duty on appellant's part by demonstrating Summers' violation of Solon Municipal Ordinance 660." Obviously, the trial judge, recognizing that the evidence established negligence per se in the appellant's use of the bucket to block the sidewalk, and cognizant of the allegation that appellee failed to use due care for her own safety, submitted the issue of proximate cause to the jury, upon proper legal instruction, which resulted in a verdict for $75,000 in favor of appellee. This is not reversible error. T h e majority's hindsight conclusion that the "plaintiff's negligence so outweighed defendant's, that the trial court should have granted judgment to the defendant" neither makes it so nor authorizes trial judges in other cases to make these kinds of determinations because the real issue in these cases is not the weight of the negligence, but rather is proximate cause, which is reserved for factfinders, not judges. Regarding the majority's conclusion on the issue of a court's ability to award judgment to a defendant where it finds the plaintiff's negligence exceeded -5- the defendant's, and its reliance on Junge v. Brothers (1985), 16 Ohio St.3d 1, the court there merely stated at 4: Although circumstances could arise under which a directed verdict would be appropriate in a comparative negligence situation, the facts of the case at bar are irreconcilable with that con- clusion. (Emphasis added.) And further, the majority's reference to Reschke v. Merola Enterprises (1992), Cuyahoga App. No. 60957, unreported, is misplaced because that case states at p. 4, If there are unresolved genuine issues of material fact as to the share of negligence attributable to either party, summary judgment is improper. Here, the standard of review mandates that the evidence presented should be construed most strongly in favor of Dorothy Texler. Civ. R. 50(A)(4) states: (4) When a motion for a directed verdict has been properly made, and the trial court, after construing the evidence most strongly in favor of the party against whom the motion is directed, finds that upon any determinative issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such party, the court shall sustain the motion and direct a verdict for the moving party as to that issue. And Civ. R. 50(B) provides for motions for judgment n.o.v. and new trials and states in pertinent part: * * * a party may move to have the verdict and any judgment entered in accordance with his motion; * * *. A motion for a new trial may be joined with this motion, or a new trial may be prayed for in the alternative. If a verdict was returned, the court may allow the judgment to stand or may reopen the judgment. If the judgment is reopened, the court shall either order a new trial or direct the entry of judgment, but no judgment shall be -6- rendered by the court on the ground that the verdict is against the manifest weight of the evidence. * * *. (Emphasis added.) Further, in this regard, Cardinal v. Family Foot Care Centers, Inc. (1987), 40 Ohio App.3d 181, the court stated: The same test is used for a motion for judgment notwithstanding the verdict and a motion for directed verdict. The trial judge must construe the evidence most strongly in favor of the non- movant and if upon all the evidence there is substantial evidence upon which reasonable minds may reach different conclusions, the motion must be denied. The trial judge does not determine the weight of the evidence or the credibility of the witnesses, and although he examines the materiality of the evidence, he does not look at the conclusions to be drawn. (Citations omitted.) The substantive law relied upon by the majority defies the standard set forth in Cardinal v. Family Foot Care Centers Inc. supra, because the majority states: *** the plaintiff's negligence must be weighed against that of the defendant. [Id. Reschke v. Merola Enterprises.] Proximate cause must still be demonstrated. Appellant's claim remains defective on each ground. Applying the appropriate standard, as stated in Cardinal, supra, the trial judge does not determine the weight of the evidence as the majority concludes. Rather, if reasonable minds may reach different conclusions, the motion ought to be and was properly denied. The majority urges the door and bucket were open and obvious and concludes "There was no evidence the concrete in the bucket, in the same location and under identical viewing conditions was not equally obvious. The proximate cause of plaintiff's injuries -7- was her failure *** to avoid what was open and obvious and what she admitted seeing before her fall from about 40 feet away." The jury, however, determined in its answers and interrogatories that the negligence of D.O. Summers was a proximate cause of Texler's injuries. As stated by the court in Holl v. Montrose, Inc. (1992), 82 Ohio App.3d 644, where Jo-Ann Holl sustained injuries when she stepped into an open unguarded stairwell at the Brown derby Restaurant, the court stated, *** The evidence, construed most strongly in Holl's favor, established that reasonable minds could differ as to whether the Brown Derby's breach of duty constituted the proximate cause of Holl's injuries. In a case such as this, where reasonable minds could differ, the proximate cause determination is better left for the jury. ***. Here, the reasonable minds of six jurors determined appellant's negligence caused the injury, and I do not believe our court should now substitute its judgment for that of the fact finder who did weigh the credibility of the witnesses, observed their demeanor and made a decision founded on evidence and law. Accordingly, I do not find that the court abused its dis- cretion in denying the motions for directed verdict or new trial as presented in the third, fourth and fifth assignments of error and thus, I dissent and would consider the remaining assignments of error. Appellant's first assignment of error states: I. -8- THE TRIAL COURT ERRED IN ALLOWING THE JURY TO CONSIDER THE EXISTENCE OF A MUNICIPAL ORDINANCE IN DETERMINING THE DUTY OF CARE OF DEFENDANT/APPELLANT. D.O. Summers contends the court erred in including the Solon sidewalk ordinance in its charge to the jury because sidewalk repair ordinances do not impose civil liability upon property owners but merely obligate them to assist cities in maintaining sidewalks. Texler contends the trial court did not err because a property owner may be liable for injuries where an ordinance imposes a duty, an affirmative act creates a dangerous condition, or an owner permits the condition to exist for its own use or benefit. The issue then presented is whether the trial court erred in charging the jury regarding the Solon sidewalk ordinance. Solon Municipal Code 660.10 provides in relevant part: (a) No person shall place or knowingly drop upon any part of a sidewalk or playground any tacks, bottles, wire, glass, nails or other articles which may damage property of another or injury any person or animal traveling along or upon such sidewalk or playground. * * * (c) No person shall place, deposit or maintain any merchandise, goods, material or equipment upon any sidewalk so as to obstruct pedestrian traffic thereon except for such reasonable time as may be actually necessary for the delivery or pickup of such articles. In no case shall the obstruction remain on such sidewalk for more than one hour. -9- As a general rule, an owner of property abutting a sidewalk is not liable for injuries sustained by users of that sidewalk. See Eichorn v. Lustig's Inc. (1954), 161 Ohio St. 11. However, in Crowe v. Hoffman (1983), 13 Ohio App.3d 254, 255, the court stated an exception to this rule where an ordinance imposes a specific duty on a property owner to maintain a sidewalk. Here, the ordinance prohibits depositing "*** material or equipment upon any sidewalk so as to obstruct pedestrian traffic thereon ***." Thus, upon application of Crowe, supra, to the facts in this case, a proper basis existed for the trial court to instruct the jury on this ordinance. Moreover, D.O. Summers at no time objected to the court's charge. (Tr. 297). Civ. R. 51(A) specifically provides: * * * On appeal, a party may not assign as error the giving or the failure to give any instruction unless the party objects before the jury retires to consider its verdict, stating specifically the matter objected to and the grounds of the objection. * * *. The failure to request or object to a jury instruction prior to the jury retiring to deliberate waives any error relating to the instruction. See Schade v. Carnegie Body Co., (1982), 70 Ohio St.2d 207 and Schmidt v. Mayfield (1987), 39 Ohio App.3d 157. Thus, since D.O. Summers failed to object to the court instructing the jury regarding the Solon sidewalk ordinance, D.O. Summers has waived its right to object on appeal to this jury instruction. D.O. Summers' second assignment of error states: -10- II. THE TRIAL COURT ABUSED ITS DISCRETION IN ADMITTING EVIDENCE OF SUBSEQUENT REMEDIAL MEASURES. D.O. Summers asserts the trial court erred in admitting the testimony of its manager, Dennis Mayers, about the manner in which it secured the side door following the accident, contending that this testimony violates Evid. R. 407. Texler contends the trial court did not err in this regard because this testimony is an exception to Evid. R. 407. Thus the issue is whether the trial court erred in permitting Mayers' testimony on an alternative means to secure the side door. Evid. R. 407 concerns subsequent remedial measures and states in relevant part: When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeached. Evidence of subsequent remedial measures cannot be admitted for the purpose of proving feasibility of precautionary measures under Evid. R. 407 unless those measures are actually controverted in the case. See Bauman v. Volkswagenwerk -11- Aktiengesellschaft (6th Cir. 1980), 621 F.2d 230, and 1 Giannelli Snyder, Evidence (1996) 308, Section 407.6. In Berger v. Port Clinton (1993), 96 Ohio App.3d 45, 50, where a pedestrian had fallen through an uncovered manhole, the court considered testimony regarding the city's subsequent remedial measure and held: We find the Packard's testimony concerning the subsequent tack welding of the manhole cover went to the controverted feasibility of precautionary measures that could have taken by the City of Port Clinton. Such testimony is specifically permitted under Evid. R. 407. Evidentiary rulings rest within the sound discretion of the trial court to determine the relevancy of that evidence and whether it will assist in deciding the factual issue in dispute. Such rulings on the admissibility of evidence will not be reversed on appeal, absent an abuse of discretion. Felden v. Ashland Chemical Co., Inc. (1993), 91 Ohio App.3d 48, citing State v. Williams (1983), 4 Ohio St.3d 53 and O'Brien v. Angley (1980), 63 Ohio St.2d 159. "The term 'abuse of discretion' connotes more than an error of law or of judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable." State v. Adams (1980), 62 Ohio St.2d 151, 157. Here, D.O. Summers alleges the court erred in admitting evidence of subsequent remedial measures when Mayers admitted D.O. Summers no longer propped open the door with the bucket, but used a chain. -12- I believe the trial court erred in admitting this evidence because the issue of precautionary measures never became controverted, and therefore, evidence of the subsequent remedial measure of D.O Summers chaining the door was inadmissable under Evid.R. 407. However, I further believe the admission of this evidence constituted harmless error. In Petti v. Perna (1993), 86 Ohio App.3d 508, headnote five states: Error in admission of evidence is not ground for reversal unless substantial rights of complaining party were affected or it appears that substantial justice was not done; in determining whether substantial right of a party has been affected, reviewing court must decide whether trier of fact would have reached same decision had error not occurred. Here, the record demonstrates independent uncontroverted evidence of D.O. Summers' actions in using the bucket as a doorstop which proximately caused Texler's injuries. Hence, the jury could have reached this verdict if the court had not admitted evidence of the remedial measure. On cross-appeal, Texler assigns four assignments of error. The first two have a common basis in law and fact. They state: I. THE TRIAL COURT ERRED IN OVERRULING APPELLEE'S MOTION TO TAX AS COSTS THE EXPENSE OF RECORDING THE VIDEOTAPED DEPOSITION TESTIMONY OF APPELLEE'S EXPERT. II. -13- THE TRIAL COURT ERRED IN OVERRULING APPELLEE'S MOTION TO TAX AS A COURT EXPENSE THE PLAYBACK OF THE VIDEOTAPE OF APPELLEE'S EXPERT. Texler contends the trial court erred in denying its motions to tax as court costs the expense of recording, transcribing and playing at trial the videotaped deposition of its expert, Steven Helper, M.D., because the Rules of Superintendence of the Common Pleas Court specifically provide for the taxing of these expenses as court costs. D.O. Summers asserts that the court properly denied these motions because only the cost of actually taping the deposition, and not the cost of transcription, are taxable as costs. The issue for review then is whether the court properly ruled on these motions. We begin our analysis with an examination of Civ. R. 54(D) which provides: (D) 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. In Vance v. Roedersheimer (1992), 64 Ohio St.3d 552, 555, the Supreme Court considered the issue of costs and held that Civ.R. 54(D) "*** grants the court discretion to order that the prevailing party bear all or part of his or her own costs." The Court then stated: This court has consistently limited the categories of expenses which qualify as costs. Costs, in the sense of the word is generally used in this state, may be defined as being the -14- statutory fees to which officers, witnesses, jurors and others are entitled for their services in an action *** and which the statutes authorize to be taxed and included in the judgment ***. *** Costs did not necessarily cover all of the expenses and they were distinguishable from fees and disbursements. They are allowed only by authority of statute ***. Today, we reaffirm the principle that "the subject of costs is one entirely of statutory allowance and control." (Citations omitted.) However, in accordance with C.P. Sup.R. 12(D)(1)(b) and (c), the expense of recording testimony on videotape shall be costs in the action and the cost of playing the video recording in court is an expense to be borne by the court. See Coleman v. Jagniszcak (1995), 104 Ohio App.3d 413. I would find merit to this assignment of error and remand the matter for a trial court resolution of this cost issue. Texler's third assignment of error on cross-appeal states: III. THE TRIAL COURT ERRED IN DENYING APPELLEE'S POST- JUDGMENT MOTION FOR PREJUDGMENT INTEREST. Texler asserts that the court should have awarded prejudgment interest because D.O. Summers failed to make a good faith effort to settle the case. D.O. Summers contends that the trial court properly denied prejudgment interest because it evaluated its risk and determined that it had no liability and had no obligation to extend a settlement offer. -15- The issue then for review is whether the trial court abused its discretion in denying prejudgment interest. In this regard, R.C. 1343.03(C) provides in part: 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 of 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 Supreme Court in Kalain v. Smith (1986), 25 Ohio St.3d 157, stated in the syllabus: 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 evaluated his risks 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. (Emphasis added.) The court further stated at 159: The decision as to whether a party's settlement efforts indicate good faith is generally within the sound discretion of the trial court. Huffman v. Hair Surgeon, Inc. (1985), 19 Ohio St.3d 83. This court will not overturn a finding on this issue unless the trial court's actions indicate an abuse of discretion. "The term 'abuse of discretion' connotes more than an error of law or judgment; it implies that the court's attitude is -16- unreasonable, arbitrary or unconscionable." Steiner v. Custer (1940), 137 Ohio St. 448. At the prejudgment interest hearing, Texler introduced evidence that despite Texler's medical expenses of $8,800, D.O. Summers extended an offer of $5,000 medical payment settlement provision through its insurance carrier, General Accident, on the morning of trial. D.O. Summers determined it had no liability based upon Dorothy Texler's deposition admission that if she would have looked, she would have seen the bucket and would have avoided it. Based on these facts, D.O. Summers believed that the comparative negligence of Texler outweighed any negligence of D.O. Summers and therefore it had no liability in the case. After consideration of the facts and circumstances in this case, I believe the trial court did not abuse its discretion in denying Texler's request for prejudgment interest because the record indicates that D.O. Summers rationally evaluated its risk and determined it had no liability. See Kalain, supra. Texler's fourth assignment of error on cross-appeal states: IV. THE TRIAL COURT ERRED IN FAILING TO GRANT APPELLEE'S MOTION FOR A DIRECTED VERDICT AS TO DEFENDANT'S NEGLIGENCE PER SE. Pursuant to App. R. 12, this assignment of error is moot by the jury verdict in favor of Texler. -17- In accordance with the analysis contained herein, the .