COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70463 MARCIA FIGUEROA : : Plaintiff-appellant : : JOURNAL ENTRY vs. : and : OPINION TOYS-R-US OHIO, INC. : : Defendant-appellee : : : DATE OF ANNOUNCEMENT OF DECISION : APRIL 3, 1997 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Case No. 275,613 JUDGMENT : REVERSED AND REMANDED DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellant: DENNIS P. MULVIHILL Attorney at Law Sindell, Lowe & Guidubaldi 600 Skylight Office Tower 1660 West Second Street Cleveland, Ohio 44113-1454 For defendant-appellee: ROGER H. WILLIAMS LOUIS R. MOLITERNO Attorneys at Law Williams & Sennett 126 W. Streetsboro Street, #4 Hudson, Ohio 44236 TIMOTHY E. McMONAGLE, J.: This court is asked to decide whether the trial court abused its discretion in admitting the lay opinion testimony of a defense witness who conducted out-of-court experiments in an effort to recreate the accident from which plaintiff-appellant seeks recov- ery. For the reasons that follow, we conclude that the trial court abused its discretion in admitting the testimony not only because the witness testified concerning a conclusion drawn as a result of the out-of-court experiments but also because the experiments themselves were too dissimilar to be of probative value. Plaintiff-appellant, Marcia Figueroa ("appellant"), was shopping at a store of defendant-appellee, Toys-R-Us, when the cart she was directing collided with an unattended ladder in an aisle of the store. As a result of the collision, appellant's cart, with her eighteen-month-old child inside, tipped over. While it is disputed whether the child was seated or standing in the cart, it is undisputed that the child was inside the cart. Appellant was able to retrieve the child before he fell to the floor. She, nonetheless, fell and sustained serious injuries. In her complaint, appellant alleges that Toys-R-Us negligent- ly allowed the ladder to remain in the aisle, proximately causing the injuries she sustained. The case went to arbitration, at which - 3 - time appellant was awarded $30,000, the arbitration limits. Toys- R-Us appealed, and the case proceeded to trial. According to the partial transcripts filed by the parties, the only witnesses to testify at trial were three employees of Toys-R-Us (Rosland Prather ["Prather"], Alfreda Marbury ["Marbury"] and Thomas Habbyshaw ["Habbyshaw"]) and the appellant. Prather testified that she did not see appellant fall but talked with her shortly afterwards and made an incident statement. This statement, admitted as evidence at trial, recounted appel- lant's version of the accident and detailed Prather's interactions with appellant afterwards. Marbury, likewise, did not see appel- lant fall but became aware of the accident upon Prather's informa- tion. The balance of Marbury's testimony was related to the store's safety policy concerning the use of ladders. Habbyshaw was the store manager on the day of the accident. He also did not witness the accident but met with appellant after the fall and had her complete an incident statement describing the events surround- ing her fall. After appellant left the store, Habbyshaw testified that, as part of normal store procedure, he and other store employees re-created the accident and took photographs of this re- creation. He further testified, over objection, that, based on out-of-court experiments he conducted subsequent to both his deposition and the arbitration hearing, there was no way that appellant's cart could have collided with the ladder in such a way as to cause the cart to tip over. - 4 - The jury found Toys-R-Us to be negligent but found that such negligence was not the proximate cause of appellant's injuries. Appellant timely appeals this verdict and assigns the following error for our review: THE TRIAL COURT ERRED TO THE PREJUDICE OF PLAINTIFF-APPELLANT IN PERMITTING THE ASSIS- TANT STORE MANAGER OF DEFENDANT-APPELLEE'S TOY STORE TO OFFER TESTIMONY AT TRIAL RELATING TO EXPERIMENTS AND RE-CREATIONS HE CONDUCTED REGARDING THE PROXIMATE CAUSE OF THE ACCIDENT WHEN THE WITNESS POSSESSED NO SCIENTIFIC, EDUCATIONAL, OR PROFESSIONAL TRAINING IN ACCIDENT RECONSTRUCTION, ENGINEERING, OR ANY OTHER DISCIPLINE NECESSARY TO QUALIFY ONE TO GIVE SUCH TESTIMONY AND, APPELLEE FAILED TO DISCLOSE THE EXISTENCE OF SAID EXPERIMENTS AND OPINIONS TO PLAINTIFF-APPELLANT AT DEPOSITION OR ANY TIME PRIOR TO TRIAL. Succinctly, appellant challenges the trial court's decision to admit the testimony of Habbyshaw regarding out-of-court experi- ments he conducted. Specifically, she argues that expert testi- mony is required to present testimony relative to out-of-court experiments and that Habbyshaw, as a store manager, was not quali- fied as an expert to provide such testimony. Alternatively, she contends that the out-of-court experiments are too dissimilar to be admissible. Toys-R-Us, on the other hand, maintains that Habbyshaw's testimony was properly admitted as that of a lay witness testifying on the basis of his own perceptions. - 5 - The admission into evidence of an out-of-court experiment is a 1 matter within the discretion of the trial court. Consequently, a reviewing court will not reverse a decision to admit such evidence 2 absent an abuse of discretion. An abuse of discretion is more than an error of law or judgment; "it implies that the court's 3 attitude is unreasonable, arbitrary or unconscionable." Because Toys-R-Us concedes that Habbyshaw was not testifying as an expert but rather as a lay witness, the admissibility of his testimony is governed by Evid.R. 701, which provides: If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (1) rationally based on the perception of the witness and (2) helpful to a clear understanding of his testimony or the determination of a fact in issue. Therefore, Habbyshaw's testimony must be analyzed according to the two-part test of Evid.R. 701. It is undisputed that Habbyshaw was not present at the time of appellant's fall and did not witness it. He had no personal first-hand knowledge of the accident. What he did have was personal knowledge of the out-of-court experiments he conducted based on the information provided to him by appellant. 1 Columbus v. Taylor (1988), 39 Ohio St.3d 162, syllabus; St. Paul Fire & Marine Ins. Co. v. Baltimore & Ohio RR. Co. (1935), 129 Ohio St. 401, paragraph two of the syllabus. 2 Id. 3 Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. - 6 - Appellant argues that lay witnesses are not competent to provide testimony relative to out-of-court experiments and that such testimony is reserved for experts. In support of her argu- 4 ment, she relies on the language of Evid.R. 702(C), which lists requirements for the admissibility of an expert's testimony when that testimony relies on tests or experiments. Notwithstanding the inclusion of such language, nothing in this rule restricts testimony of out-of-court experiments to expert witnesses only. To the contrary, our independent research has identified cases where the testimony of a non-expert witness was admissible to the extent that the testimony was related to the witness's observations and 5 did not draw any conclusions based on those observations. 4 Evid.R. 702 provides, in part: A witness may testify as an expert if all of the following apply: * * * (C) The witness' testimony is based on reliable scientific, technical, or other spe- cialized information. To the extent that the testimony reports the result of a procedure, test, or experiment, the testimony is reliable only if all of the following apply: (1) The theory upon which the procedure, test, or experiment is based is objectively verifiable or is validly derived from widely accepted knowledge, facts, or principles; (2) The design of the procedure, test, or experiment reliably implements the theory; (3) The particular procedure, test, or ex- periment was conducted in a way that will yield an accurate result. 5 See, e.g., Paul v. Moore (1995), 102 Ohio App.3d 748, 753- 754; State v. English (1991), 77 Ohio App.3d 371, 379-380; Mutual Life Ins. Co. v. Kelly (1934), 49 Ohio App. 319. - 7 - Notwithstanding, the testimony would have to meet the requirements for admissibility as they relate to out-of-court experiments. Evidence of an out-of-court experiment is admissible if there is a substantial similarity between the conditions existing when the experiment was conducted and those existing at the time of the 6 occurrence in dispute. Dissimilarities between the out-of-court experiment and the occurrence, when not so marked as to confuse and mislead the jury, go to the weight rather than the admissibility of 7 the evidence. Where the experiment, however, vastly differs from the actual occurrence, the trial court abuses its discretion in 8 admitting such evidence. In this case, Habbyshaw testified as follows: DEFENSE COUNSEL: At any time as the store manager did you try to, I guess, reconstruct how this accident was reported to have happened? MR. HABBYSHAW: Yes, I did just recently. I took a six-foot ladder, just like that one -- MR. FISHER: Objection, Your Honor. THE COURT: Overruled. MR. HABBYSHAW: I took the cart and I tried to find a way that the cart 6 St. Paul, 129 Ohio St. 401, paragraph one of the syllabus; Taylor, 39 Ohio St.3d at 164. 7 Id.; see, also, Worthington City Schools v. ABCO Insulation (1992), 84 Ohio App.3d 144, 150. 8 Tritt v. Judd's Moving & Storage, Inc. (1990), 62 Ohio App.3d 206, 214; see, also, Mutual Life, 49 Ohio App. 319, at 324. - 8 - could actually tip over by hitting a six-foot ladder and it cannot. I tried every possible way. It cannot happen. DEFENSE COUNSEL: Okay. You tried that repeatedly? MR. HABBYSHAW: Yes, I have. DEFENSE COUNSEL: In the times that you did try it, was that done on a normal Toys R Us floor? MR. HABBYSHAW: Yes, a tile floor. DEFENSE COUNSEL: That's different than the floor here? MR. HABBYSHAW: Yes. DEFENSE COUNSEL: Did the ladder move at all when you had hit the cart into -- MR. HABBYSHAW: Yes, it did. It would slide out of the way. DEFENSE COUNSEL: But in no instance when you tried it repeatedly did the cart ever tip over; is that correct? MR. HABBYSHAW: Never. DEFENSE COUNSEL: Could you even make it so the wheels got stuck on the ladder? MR. HABBYSHAW: Even throwing it on the ground, I couldn't do it. DEFENSE COUNSEL: Could you come down off here. I want to ask that you assist me. Maybe you can show us -- MR. FISHER: Objection. Objection to any demonstrations here. - 9 - THE COURT: Overruled. DEFENSE COUNSEL: Why don't you show the ladies and gentlemen of the jury a couple of ways of what you tried to do to reconstruct. MR. HABBYSHAW: What I tried to do is find a way that, going around the corner, if there was any way that it could catch. What happens, going at a normal speed, the cart would veer off. Going at a faster pace, the ladder slid. DEFENSE COUNSEL: Did the cart ever almost tip over doing that? MR. HABBYSHAW: Never. DEFENSE COUNSEL: You tried it at a faster pace and a slower pace? MR. HABBYSHAW: I have tried throwing the cart at it, pushing it as hard as I can, and the only thing that happens is the ladder wobbles back and forth. DEFENSE COUNSEL: What happens to the cart? MR. HABBYSHAW: It just veers off to the side. The testimony above does not merely reflect the observations of Habbyshaw but also includes his opinion as to the likelihood of the accident occurring as appellant reported. Consequently, even if we were to rule that Habbyshaw's testimony was admissible to the extent that it related to his observations of the out-of-court experiments, the conclusion drawn would be inadmissible. - 10 - It is not necessary for us, however, to reach such a resolu- tion because it is our opinion that the out-of-court experiment is a vastly different portrayal of appellant's accident than sup- ported by the evidence. Habbyshaw testified that he took a cart similar to the cart utilized by appellant and repeatedly shoved the cart into a similar ladder. Up to this point, the experiment is 9 not too dissimilar to warrant exclusion. What makes Habbyshaw's experiments vastly dissimilar is that he failed to account for the weight of an eighteen-month-old child in the cart. It is undisputed that he conducted his experiments with an empty cart. Surely, weight is a factor that must be taken into account if an out-of-court experiment attempting to re-create appellant's accident is to be given any credence. Because the conditions and circumstances under which Habbyshaw conducted his out-of-court experiments were not merely dissimilar but vastly different, it was unreasonable for the trial court to admit testimony regarding such experiments. With no other testimony relative to proximate cause, the admission of this testimony is clearly prejudicial to appellant. Consequently, the trial court abused its discretion in permitting the testimony of Habbyshaw as it related to out-of-court experi- ments conducted by him. 9 See Paul, 102 Ohio App.3d at 756; Blackstone v. Lyden Co. (May 31, 1995), Lorain App. No. 94CA005886, unreported. - 11 - Accordingly, appellant's sole assignment of error is sus- tained. The judgment of the trial court is reversed and the cause remanded to the trial court for further proceedings. - 12 - This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellant recover of said appellee her 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. PATRICIA BLACKMON, P.J. and JOSEPH J. NAHRA, J. CONCUR JUDGE TIMOTHY E. McMONAGLE 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 .