COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70226 JERALD SCHNEIDER, ET AL. : : Plaintiff-appellants : : JOURNAL ENTRY -vs- : AND : OPINION FIRST NATIONAL SUPERMARKETS, : DBA FINAST : : Defendant-appellee : : DATE OF ANNOUNCEMENT : DECEMBER 5, 1996 OF DECISION : CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. CV-270335 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellants: For defendant-appellee: JOSEPH C. DEROSA, ESQ. JAN L. ROLLER, ESQ. Wincek & Derosa Co. DENNIS R. FOGARTY, ESQ. 1500 Standard Bldg. Davis & Young Cleveland, OH 44113 1700 Midland Bldg. 101 Prospect Avenue Cleveland, OH 44115-1027 - 2 - PATTON, J. Plaintiff Jerald Schneider, a driver for a soft drink company, injured himself as he lowered himself from a loading dock at one of defendant First National Supermarkets' grocery stores. He brought suit, alleging the grocery store negligently blocked egress from the dock, thus forcing him to use that particular method of leaving the loading the dock. A jury returned a defense verdict. The trial judge overruled plaintiff's motions for a new trial and judgment notwithstanding the verdict, both of which argued the verdict was against the weight of the evidence. The issues are whether the trial court abused its discretion by denying these post trial motions. The grocery store in question has a loading dock connected to a large back room that extends over the two hundred fifty foot width of the store. The store has two delivery entrances -- a small door at one end of the back room and a large overhead door on the other side of the back room. The large door (in the area where the injury occurred) separates the dock area from the back room. Delivery drivers wishing to enter the premises either come in through the front doors of the grocery store, ring a bell mounted on the outside wall of the building or bang on the steel overhead door. The loading dock is four feet below the grade of the store. A set of concrete stairs leads from the bottom of the dock area to the store level. A fence encloses the perimeter by the stairs and, - 3 - at the time of plaintiff's injury, a locked gate closed off the stairs completely. Drivers choosing not to exit the loading dock area through the store either lowered themselves off the dock or moved along the perimeter ledge of the dock by grasping the fence itself and going sideways along the fence line, placing their feet in the gap between the fence and the floor until they reached the stairs. On the day of plaintiff's injury, he parked his rig in the loading dock and walked around to the front of the store. He located the store's back door man who opened the metal door to the loading dock. Plaintiff proceeded to bring his product into the back room without incident. As the back door man finished checking in the order, a bell signaled that a delivery was coming to the other door on the opposite side of back room. The second delivery needed to be checked in quickly, so the back door man attended to that delivery. Store policy forbade both back doors from being open at the same time, so the back door man left plaintiff out on the dock, closed the overhead door and proceeded to check in the second delivery. Plaintiff tended to some pallets inside his truck. When finished, he rang the loading dock door bell so he could reenter the store and exit out the front doors. The back door man failed to answer the bell, so plaintiff began pounding on the door, again without effect. He decided to leave the dock by sitting on the edge of the dock and slowly lowering himself to the ground. By his - 4 - own admission, after stretching out his full length, plaintiff's feet were only eight to twelve inches from the ground as he hit his release point. He landed on both feet but claimed one of his feet slipped out from under him, twisting and severely injuring his knee in the process. At trial, plaintiff testified he believed his foot caught a piece of produce rubbish as he hit the ground. I The first, second, and fourth assignments of error form the bulk of plaintiff's argument and allege, in essence, that the trial court erred by failing to grant either the motion for new trial or the motion for judgment notwithstanding the verdict on grounds that the jury verdict was against the weight of the evidence. A As an initial matter, we find plaintiff's argument relating to the trial court's refusal to grant the Civ.R. 50(B) motion for judgment notwithstanding the verdict cannot stand. "In considering a motion for judgment notwithstanding the verdict, a court does not weigh the evidence or test the credibility of the witnesses." Osler v. Lorain (1986), 28 Ohio St.3d 345, syllabus. Hence, as a matter of law, the trial court could not grant judgment notwithstanding the verdict on grounds that the verdict was against the weight of the evidence. B It is a familiar standard that judgments will not be overturned if supported by competent, credible evidence. C. E. - 5 - Morris Co. v. Foley Construction Co. (1978), 54 Ohio St.2d 279. This same standard holds in the context of a Civ.R. 59(A)(6) motion for a new trial, with the added requirement that we will not reverse a trial court's decision on a motion for a new trial unless the court abused its discretion. Rohde v. Farmer (1970), 23 Ohio St.2d 82, 91-93. Stated differently, we must "view the evidence favorable to the trial court's action rather than to the jury's verdict." Jenkins v. Krieger (1981), 67 Ohio St.2d 314, 320. Plaintiff's job as a delivery driver for a soft drink company qualified him as a frequenter; that is, a person, other than an employee, "who may go in or be in a place of employment under circumstances which render him other than a trespasser." See R.C. 4101.01(E); Daniels v. Thistledown Racing Club, Inc. (1995), 103 Ohio App.3d 281, 284. The duty owed to frequenters is essentially a codification of the common law duty an owner or occupier of premises owes to invitees. Id. at 285. This duty requires that the premises be kept in a reasonably safe condition, and that warning be given of dangers of which the owner or occupier has knowledge. Eicher v. United States Steel Corp. (1987), 32 Ohio St.3d 248, 249; Taylor v. B.P. Exploration & Oil, Inc. (1994), 96 Ohio App.3d 318, 322. We find the trial court did not abuse its discretion by denying the motion for a new trial because competent, credible evidence supported the jury's finding that the grocery store did not violate any duty to plaintiff. Despite maintaining the grocery - 6 - store owed him a duty to keep the stairwell to the loading dock unlocked and free of impediments, plaintiff readily admitted making at least fifteen deliveries to the store in which the stairs to the loading dock were blocked. As a consequence, he admitted seeing other drivers either lower themselves from the dock or shuffle along the perimeter of the fence to reach the stairs. For his part, plaintiff stated he always waited for the back door man to open the locked door, even if it took four or five different tries with the door bell. The most compelling evidence supporting the verdict is related to two points -- plaintiff's failure to exercise his own due care in lowering himself from the loading dock and his failure to discover and avoid jumping onto garbage. The jury could conclude plaintiff chose a safe method of leaving the dock. He conceded his feet were only inches from the ground when he lowered himself from the dock. Moreover, plaintiff admitted this method of leaving the dock was the safest of the various alternatives presented to him. The jury could further conclude that but for slipping on a piece of garbage plaintiff would not have suffered his injury. The grocery store managed to impeach plaintiff on this point, eliciting testimony and evidence showing plaintiff did not make any statement immediately after his injury to the effect that he slipped on anything. Finally, plaintiff admitted he did not look directly down on the ground before he left the dock and could not readily - 7 - identify what he slipped on, claiming "it appeared to be broken produce." With this evidence, the jury could reasonably find against plaintiff on his claim that the grocery store's negligence caused his injuries. C The final issue raised in these assignments is whether the trial court erred by failing to issue findings of fact and conclusions of law when issuing its ruling on the motion for a new trial. Civ. R. 59(A) states that "When a new trial is granted, the court shall specify in writing the grounds upon which such new trial is granted." This is a mandatory requirement when the court grants a motion for a new trial. See Antal v. Olde World Products, Inc. (1984), 9 Ohio St.3d 144, syllabus. Civ.R. 59(A) says nothing about the court's duty to specify in writing its reasons for refusing to grant a motion for a new trial and we refuse to read that requirement into the rule. The first, second and fourth assignments of error are overruled. II The remaining assignments of error relate to evidentiary rulings by the trial court. A In his third assignment of error, plaintiff complains the trial court should have granted the motion for a new trial on - 8 - grounds that it erroneously permitted the grocery store to utilize a videotape showing one of its employees demonstrating the manner in which plaintiff alighted from the loading dock when he suffered his injury. Plaintiff argues the videotape, shot some months after his injury, showed the loading dock had been substantially remodeled in the interim. Plaintiff neither objected to the use of the videotape at trial, nor did he raise the use of the videotape in his new trial motion. It is a fundamental rule that an appellate court need not consider an error which a party could have called, but did not call, to the trial court's attention at a time when the error could have been corrected. State v. Williams (1977), 51 Ohio St.2d 112, syllabus. Moreover, given the wealth of evidence supporting the jury verdict, we find application of the plain error rule, as urged by plaintiff, would be unavailing. In order to demonstrate plain error, a party must show an obvious and prejudicial error which, if permitted, "would have a material adverse effect on the character and public confidence in judicial proceedings." Schade v. Carnegie Auto Body Co. (1982), 70 Ohio St.2d 207, 209. The grocery store correctly notes it offered the videotape to demonstrate the manner in which plaintiff left the dock, not as substantive evidence of the dock itself. At trial, both parties made use of photographs which accurately depicted the dock at the time of plaintiff's injury. Consequently, we find no basis with - 9 - which to conclude the use of the videotape constituted error of any sort. B Plaintiff's fifth assignment of error relates to questions the grocery store asked plaintiff relating to a company directive issued by his employer, the soft drink company. That directive, apparently labeled by the employer as "remedial action," instructed drivers not to jump from loading docks but to exit the dock by walking through the stores. Plaintiff maintains the use of this document violates Evid.R. 407 by permitting evidence of remedial action. Evid.R. 407 states: Subsequent Remedial Measures. 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. ***" Evid.R. 407 prohibits the introduction of evidence of subsequent remedial measures to prove negligence or culpable conduct. McFarland v. Bruno Mach. Corp. (1994), 68 Ohio St.3d 305, syllabus. One of its supporting rationales is that remedial measures have little or no probative value in establishing negligence because the injury may have been caused by reason of mere accident or through a plaintiff's contributory negligence. Id. at 307-308. Like any other piece of evidence or testimony brought forward at trial, the decision to admit into evidence - 10 - remedial measures taken by a party is entrusted to the sound discretion of the trial judge. Rigby v. Lake Cty. (1991), 58 Ohio St.3d 269, 271. We conclude the trial court did not abuse its discretion by permitting the grocery store to cross-examine plaintiff on his employer's post-injury memorandum instructing its drivers not to jump from loading docks. When subsequent remedial measures are effected by third persons, the policy encouraging such measures is not implicated and Evid.R. 407 does not apply. Brentson v. Chappell (1990), 66 Ohio App.3d 83, 88; Smith v. Raymond Corp. (Oct. 25, 1990), Cuyahoga App. No. 57670, unreported at 6. Evid.R. 407 only applies to defendant's voluntary actions. This is a secondary justification for the rule and is premised on the policy of encouraging defendants to remedy hazardous conditions without fear that evidence of those remedies will be used as evidence against them. See Pau v. Yosemite Park and Curry Co. (C.A.9. 1991), 928 F.2d 880, 888 (construing identical federal rule). Plaintiff's employer was a third party, with no connection to the injury. Absent any objection to the relevancy of the employer's memorandum under Evid.R. 403, we find the trial court did not abuse its discretion by finding Evid.R. 407 inapplicable and permitting the grocery to introduce the memorandum into evidence. B - 11 - In his sixth assignment of error, plaintiff complains the trial court improperly prohibited him from eliciting opinion testimony from the back door man relating to the safety of the loading dock area. The sustained objections came on questions concerning the safety of the method some delivery drivers used to leave the dock whereby they would shuffle along side the edge of the fenced perimeter and lower themselves onto the stairs. Plaintiff claims the back door man could competently express an opinion on the relative safety of this method based on his eight years experience as the back door man at the grocery store. We find the trial court did not abuse its discretion by sustaining the grocery store's objections to these questions. It is important to note that they were irrelevant to the precise question of negligence presented in the case -- plaintiff did not leave the loading area by shuffling alongside the fence; he left the dock area by sitting on the edge of the dock and lowering himself eight inches to the ground. The back door man's opinion on the relative safety of other methods that could be used to exit the dock area simply had no relevance to plaintiff's claim. Finally, we find plaintiff's citation to our decision in Crane v. Lakewood Hosp. (1995), 103 Ohio App.3d 129, is not on point. In Crane, we found the trial court abused its discretion when it refused to permit an accident victim's son from giving his opinion that a chair which Crane claimed proximately caused her injuries was, among other things, "unstable." We noted the rules of - 12 - evidence permit lay witnesses to testify to observations based upon common experience; for example, physical condition. Id. at 133. Our ultimate conclusion, that the trial court abused its discretion by refusing to permit the son to testify to the chair's "low center of gravity," was simply based on the son's rational conclusion drawn from his observation of the chair and his common experience. Nothing in the opinion was intended to hold that lay persons could give scientific opinions on the physics of chair design or engineering (as opposed to describing the physical characteristics of the chair), and we expressly make that point here. Consequently, the back door man could competently testify to his personal observations of the dock area, but not his ultimate opinion that the dock area was safe. In any event, the transcript shows the trial court permitted the back door man to testify that he saw no safety problems with drivers leaving the dock area by shuffling along side the fence, and the trial court further permitted the back door man to admit his duties included making the loading dock area safe for all employees and drivers. As to the ultimate issue of whether plaintiff's method of leaving the dock was safe, the issue was not so complicated to require any expert opinion testimony on that issue. Accordingly, we find no abuse of discretion. The assigned errors are overruled. Judgment affirmed. - 13 - It is ordered that appellee recover of appellants its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas 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. KARPINSKI, J., CONCUR JUDGE JOHN T. PATTON 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 .