COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69647 and 70284 BERNADINE DAVIS, EXECUTRIX, etc.: : : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION SAM'S CLUB, dba WAL-MART : STORES, INC. : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: SEPTEMBER 12, 1996 CHARACTER OF PROCEEDING: Civil appeals from Common Pleas Court Case No. CV-243067 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: JEAN M. McQUILLAN WILLIAM MARTIN GREENE Greene & McQuillan Co., L.P.A. 1801 Bond Court Building Cleveland, Ohio 44114 For Defendant-Appellant: ROY A. HULME CLIFFORD C. MASCH Reminger & Reminger Co., L.P.A. The 113 St. Clair Building Cleveland, Ohio 44114 - 2 - O'DONNELL, J.: Wal-Mart Stores, Inc., dba Sam's Club, appeals from a two- million-dollar jury verdict entered in favor of Bernadine Davis, as Executrix of her husband's estate, on a wrongful death claim and from an award of prejudgment interest on that verdict. These matters have been consolidated for our review. On January 23, 1992, Sam's Club issued a memorandum advising about incidents where semi-tractor trailers had prematurely pulled away from loading docks with employees or equipment still on board and warning about the risks of serious injury presented by this circumstance. The memo further directed that all truck drivers leave their keys with the receiving office until all unloading employees and all equipment had been removed from the trucks. In response to this memo, the Wal-Mart Store located in Oakwood Village instituted a procedure which required the driver to deliver the bill of lading to the unloader and upon completion of the unloading, the unloader delivered it to the receiving office which returned truck keys to the drivers. However, this procedure was not followed when produce trucks were unloaded at the Oakwood Wal-Mart Store because Caruso- Ciresi, Co. leased produce space from Wal-Mart, owned the produce, and thus the produce manager retained the bill of lading until he verified delivery and then returned it to the receiving office. - 3 - David Benigni, the Sam's Club Receiving Manager, testified that the produce manager should have returned the bill of lading to the unloader or told the unloader that he had verified the delivery, but, John Caparoula, the Caruso-Ciresi produce manager, testified that no one from Sam's Club ever informed him of that procedure. On September 10, 1992, Thomas Davis, a Sam's Club employee at the Oakwood Village Wal-Mart Store, died when the produce truck which he had been unloading, prematurely pulled away from the dock causing the forklift he was operating to fall off the dock. Upon investigation OSHA issued a violation notice to appellant for failing to provide a safe place to work. Thereafter, Bernadine Davis as Executrix of her husband's estate filed this action alleging that the incident which resulted in her husband's death constituted an intentional tort. Prior to trial, although appellee had reduced the settlement demand to $250,000, and appellant had offered $150,000, the matter resulted in a jury verdict of two million dollars. Appellee then sought prejudgment interest and the court after hearing, awarded it. Appellant now appeals from the original verdict and from the interest award. These matters have been consolidated for our review. Appellant's first assignment of error states: - 4 - I. THE TRIAL COURT ERRED, AS A MATTER OF LAW, IN FAILING TO GRANT THE DEFENDANT'S MOTION FOR DIRECTED VERDICT. Sam's Club asserts the trial court should have directed a verdict in its favor because its failure to implement an unloading procedure with respect to produce may have been negligent but it does not constitute knowingly requiring employees to perform a dangerous task where injury is substantially certain to occur. Appellee contends the trial court properly overruled the directed verdict because the evidence at trial established that Sam's Club knew about dangerous unloading procedure prior to Davis' death, and despite this knowledge, required its employees to perform this dangerous task. The issues then for our review are whether the trial court erred in denying appellant's motion for directed verdict and, further, whether appellant had actual knowledge that injury was substantially certain to occur and despite this knowledge, required its employees to unload the produce trucks. Civ. R. 50(A) concerns motions for directed verdicts and provides in relevant part: (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 - 5 - 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. The court must submit the case to the jury and deny a motion for directed verdict if, after construing the evidence presented most strongly in the non-moving party's favor, there is sufficient evidence upon which reasonable minds could reach different conclusions. Cardinal v. Family Foot Care Centers, Inc. (1987), 40 Ohio App.3d 181. We now examine the substantive law of intentional tort against this standard. In its syllabus in Fyffe v. Jeno's, Inc.(1991), 59 Ohio St.3d 115, the Supreme Court established the following test for the determination of an intentional tort: 1. * * * in order to establish intent for the purposes 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 operation; (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 five of the syllabus, modified as set forth above and explained.) 2. To establish an intentional tort of an employer, proof beyond that required to prove negligence and beyond that to prove recklessness - 6 - must be established. Where the employer acts despite his knowledge of some risk, his conduct may be negligence. As the probability increases that particular consequences may follow, then the employer's conduct may be characterized as recklessness. As the probability that the consequences will follow further increases, and the employer knows that injuries to employees are certain or substantially certain to result from the process, procedure or condition and he still proceeds, he is treated by the law as if he had in fact desired to produce the result. However, the mere knowledge and appreciation of a risk- something short of substantial certainty- is not intent. (Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St.3d 100, 522 N.E.2d 489, paragraph six of the syllabus, modified as set forth above and explained.) Here, the record discloses that Sam's Club had knowledge of incidents of premature pull-aways prior to Davis' death and designed an unloading procedure to eliminate the risk of serious injury from this circumstance. However, it failed to require Caruso-Ciresi, its lessee, to employ the new unloading procedure, but nevertheless required its employees to unload produce. After construing this evidence most strongly in favor of appellee, in conformity with Fyffe v. Jeno's, Inc., supra, reasonable minds could conclude that appellee established an intentional tort in this case. Since the evidence supports these elements of intentional tort, the trial court properly denied appellant's motion for directed verdict. Accordingly, this assignment of error is overruled. - 7 - Appellant's second assignment of error states: II. THE TRIAL COURT ERRED IN INSTRUCTING THE JURY AS TO THE TYPE OF KNOWLEDGE WHICH MAY BE IMPUTED TO A CORPORATION. Appellant contends that the trial court improperly instructed the jury on knowledge attributable to a corporation because the court did not specify that the knowledge must be that of a managerial or supervisory employee. Appellee maintains that appellant waived its right to raise this issue on appeal because it did not comply with Civ. R. 51(A) in the trial court. The issue becomes whether the appellant properly preserved this matter for appeal. Civ. R. 51(A) provides in relevant part: * * * 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. * * *. (Emphasis added.) In Kelly v. Cairns & Brothers, Inc. (1993), 89 Ohio App.3d 589, 613, the court held that a litigant could not raise objections to a jury instruction on appeal when the litigant failed to cite the reason for the objection in the trial court proceedings and stated in pertinent part: A general exception to instructions, without stating any ground therefor, fails to comply with the plain command of the rule [Civ.R. 51(a)] that - 8 - the grounds of objection must be stated 'distinctly,' and presents nothing for review. Citing Singfield v. Thomas (1991), 28 Ohio App.2d 268, 269-270. A review of the record in this regard indicates that appellant raised the argument regarding actual knowledge by supervisory employees for the first time on this appeal and although appellant generally objected to the jury instruction on knowledge of the employer at trial, appellant did not specifically state the matter objected to nor specify the grounds of its objection. Hence, appellant has not properly preserved this error for appeal. Further, had this issue been properly raised on appeal, the record reflects two managerial employees, David Benigni and Darryl Roberts, testified that they had knowledge of prior premature pull-away incidents at Sam's Clubs Stores. Accordingly, this assignment of error is therefore overruled. Appellant's third assignment of error states: III. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN ALLOWING INTO EVIDENCE AN OSHA CITATION WHICH RELATED TO THE UNDERLYING ACCIDENT IN ISSUE. Appellant relies on Hernandez v. Martin Chevrolet (1995), 72 Ohio St.3d 302, and maintains that the trial court erred in admitting evidence of the OSHA citation which prejudicially affected its liability in this case. - 9 - Appellee contends the law permits evidence of an OSHA citation to establish that injury to an employee was substantially certain to occur, and further that the probative value of such evidence has been held to outweigh the prejudicial effect, and therefore the trial court did not err in this case in admitting the OSHA violation. Thus, the issue for review is whether the trial court improperly admitted evidence of the OSHA citation. In this case, the trial court permitted appellee's counsel to read into the record, in the presence of the jury, the September 10, 1992 OSHA citation. This evidence further corroborated appellant's knowledge of the existence of unsafe working conditions at the Oakwood Village Wal-Mart. In conformity with our decision in Felden v. Ashland Chem. Co., Inc. (1193), 91 Ohio App.3d 48, we conclude that the court properly permitted the admission of this OSHA violation because the violation was directly related to Sam's Club's knowledge of unsafe working conditions and thus was not inadmissable per Evid.R. 403(A) since its probative value far outweighed any possible prejudice. Further, although the Supreme Court in Hernandez, supra, held that an OSHA violation does not constitute negligence per se, the Court did not comment whether a violation may be admitted for other purposes. - 10 - We conclude here that the trial court did not err in the admission of this evidence and therefore, this assignment of error is overruled. Regarding its appeal on the award of prejudgment interest, appellant asserts: I. THE PREJUDGMENT INTEREST HEREIN SHALL BE VOID IF APPELLANTS ARE SUCCESSFUL IN THE UNDERLYING APPEAL IN CASE NO: 69647. This is not an assignment of error. We render no ruling on it. Appellant's second assignment of error alleges: II. THE TRIAL COURT'S GRANTING OF PREJUDGMENT INTEREST CONSTITUTES AN ABUSE OF DISCRETION. Sam's Club asserts that the trial court abused its discretion in awarding prejudgment interest because it had cooperated in discovery, rationally evaluated its liability and therefore the court's findings in this regard were not supported by the evidence adduced at trial. Appellee contends that the trial court did not abuse its discretion in awarding prejudgment interest because the evidence - 11 - does not establish that the trial court's attitude was unreasonable, arbitrary or unconscionable in making this award. The issue then for review is whether the trial court abused its discretion in awarding prejudgment interest. "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." Steiner v. Custer (1940), 137 Ohio St. 448. In considering whether the trial court abused its discretion in this prejudgment interest award, we look at the statute governing prejudgment interest. R.C. 1343.03(C) provides in part: Interest on a judgment, * * * shall be computed from the date the cause of action accrued to the date on which the money is paid, if, * * * the court determines * * * that the party required to pay the money failed to make a good faith effort to settle the case * * *. (Emphasis added) The Supreme Court in Kalain v. Smith (1986), 25 Ohio St.3d 157, stated in its 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. Here, the trial court based its award of prejudgment interest on a lack of cooperation in discovery, appellant's unreasonable - 12 - and inflexible position in evaluating its potential liability, and corporate counsel's refusal to authorize the $250,000 settlement authority requested by trial counsel and repeated assurances to appeal the case to the Ohio Supreme Court if plaintiff refused its settlement offer. The evidence in the record before us supports the decision of the trial judge. While this court or other judges may have reached different conclusions, this does not establish the trial court abused its discretion. Accordingly, we affirm the determination of the trial court in awarding prejudgment interest. This assignment of error is overruled. Appellant's final assignment of error states: III. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN ACTING AS THE ARBITRATOR IN DETERMINING WHAT PORTIONS OF APPELLANT S CLAIM FILE WAS TO BE DISCLOSED IN A PREJUDGMENT INTEREST PROCEEDING AND ACTING AS THE FACT FINDER IN DETERMINING WHETHER TO AWARD PREJUDGMENT INTEREST. Appellant contends that the trial court should have referred the matter of the in-camera document inspection to another judge to avoid a conflict of interest. Appellee maintains that the trial court did not err in this regard because appellant failed to avail itself of the proper procedures to disqualify a judge from hearing a matter as set - 13 - forth in R.C. 2701.03 and further that appellant has failed to provide evidence of prejudice resulting to it by the judge conducting the in-camera inspection. The issue then for review is whether the trial court erred in both conducting the in-camera inspection and in holding the prejudgment interest hearing. In this instance, the record reflects that the appellant filed a motion for protective order seeking to avoid production of documents and also requested the court to refer the matter to the administrative judge for an in-camera inspection of those documents. The trial court denied this motion and heard the matter on January 24, 1996. The transcript of that hearing reveals that appellant did not object to the court proceeding despite the fact that the court had ruled on appellant's protective order. "It is axiomatic, however, that issues not presented for consideration below will not be considered by this court on appeal." Shover v. Cordis Corp. (1991), 61 Ohio St.3d 213, 230. Therefore, we conclude that because appellant failed to raise a timely objection to this procedure, it waived an opportunity to raise the issue on appeal. Accordingly, this assignment of error is overruled. For the foregoing reasons, the judgment of the trial court is affirmed. - 14 - It is ordered that appellee(s) recover of appellant(s) 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. SPELLACY, C.J., and NAHRA, J., CONCUR JUDGE TERRENCE O'DONNELL 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 .