COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70797 CARL ELDER : : : PLAINTIFF-APPELLANT : JOURNAL ENTRY : v. : AND : SUMMIT MANUFACTURING, INC. : OPINION : : DEFENDANT-APPELLEE : DATE OF ANNOUNCEMENT OF DECISION: MARCH 20, 1997 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, No. CV-276887. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: Jeffrey H. Friedman, Esq. Lisa M. Gerlack, Esq. Friedman, Domiano & Smith 1370 Ontario Street Cleveland, OH 44113-1701 For Defendant-Appellee: James E. Powell, Esq. John J. Dyer, Esq. Stafford and Associates 380 Lakeside Place 323 Lakeside Avenue W. Cleveland, OH 44113 -2- DAVID T. MATIA, P.J.: Carl Elder, plaintiff-appellant, appeals from the judgment of the Cuyahoga County Court of Common Pleas, General Division, in which the jury returned a verdict in favor of Summit Manufacturing, Inc., defendant-appellee, on plaintiff-appellant's intentional tort cause of action. Plaintiff-appellant assigns two errors for this court's review. Plaintiff-appellant's appeal is not well taken. I. THE FACTS Summit Manufacturing, Inc., defendant-appellee, manufacturers and sells specialty abrasive materials. One of the products Summit Manufacturing produces are items designated as "spiral bands." Spiral bands are manufactured by sliding a cardboard tube coated with abrasive material onto the rotating shaft of a recutter machine. The recutter machine, a modified lathe with a spinning adjustable shaft and movable cutting blades, then cuts the cardboard tube into smaller ringlets called "spiral bands." During operation of the recutter machine, excess glue and paper build up on the rotating shaft. The shaft must then be cleaned by the operator of the machine with sandpaper strips in order to insure efficiency. Operators of the recutter machines wore rubber gloves provided by Summit Manufacturing to protect their hands from the abrasive products while working on the machines. In early December, 1993, Carl Elder, plaintiff-appellant, was hired by Summit Manufacturing as a recutter machine operator. Willie Zimmerman, a supervisor at Summit Manufacturing, trained -3- plaintiff-appellant on the recutter. Plaintiff-appellant received approximately eight hours of training from Zimmerman on the recutter. On December 9, 1993, plaintiff-appellant reported for work. Plaintiff-appellant worked on the recutter machine for approximately two hours. Due to a build up of glue and paper on the rotating shaft, plaintiff-appellant decided to clean the shaft of the recutter. Plaintiff-appellant took a piece of sandpaper and placed it around the rotating shaft as he had been instructed by Summit Manufacturing and as he had learned at previous jobs. At the time, plaintiff-appellant was wearing what were characterized as "loose fitting rubber gloves" provided by Summit Manufacturing. During the cleaning process, the rotating shaft of the recutter machine caught the little finger of plaintiff-appellant's loose fitting glove and twisted plaintiff-appellant's hand into the rotating shaft, pulling off plaintiff-appellant's right thumb. As a result of this incident, plaintiff-appellant suffered permanent functional and cosmetic injuries to his right hand. Approximately one month prior to plaintiff-appellant's injuries, Carlos Borrero, a recutter operator for Summit Manufacturing, suffered a similar injury to his right index finger while working on the same recutter machine involved in plaintiff-appellant's injury. However, the underlying circumstances of Borrero's injury differed from that of plaintiff-appellant in that Borrero was injured while actually operating the recutter machine and -4- plaintiff-appellant was injured attempting to clean the recutter machine. On September 15, 1994, plaintiff-appellant filed suit in the Cuyahoga County Court of Common Pleas alleging an intentional tort against Summit Manufacturing arising out of plaintiff-appellant's injuries which occurred on the recutter machine. Plaintiff- appellant maintained that the rotating shaft of the recutter machine combined with the loose-fitting rubber gloves provided by Summit Manufacturing constituted a known dangerous condition substantially certain to lead to employee injury and, in spite of the known risk, Summit Manufacturing required plaintiff-appellant to perform the dangerous task. See Fyffe v. Jeno's Inc. (1991), 59 Ohio St.3d 115. The case proceeded to trial on May 23, 1996. Prior to trial, Summit Manufacturing filed several motions in limine including one seeking the exclusion of the proposed testimony of Carlos Borrero regarding the injury he sustained to his right index finger while working on the same recutter machine upon which plaintiff-appellant was subsequently injured. In addition, Summit Manufacturing sought to exclude any evidence pertaining to subsequent remedial measures that may have been taken regarding the safety of the recutter machine in question. Initially, the trial court ruled that Carlos Borrero's testimony pertaining to his own finger injury was, in fact, relevant to plaintiff-appellant's case since both injuries occurred on the identical recutter machine at Summit Manufacturing. However, -5- during the presentation of plaintiff-appellant's case-in-chief, the trial court reconsidered its earlier ruling on the issue and determined that, since Borrero's injury occurred while Borrero was working on the recutter machine and plaintiff-appellant's injury occurred while cleaning the machine, Borrero's injury was the result of significantly different circumstances and was therefore not relevant to the underlying case. Borrero was then excluded from testifying. Plaintiff-appellant then proffered Borrero's excluded testimony for the record. The trial court granted the motion in limine of Summit Manufacturing regarding any subsequent remedial measures that may have been put in place as a result of plaintiff-appellant's injuries. Plaintiff-appellant did not proffer for the record or identify the nature of the alleged subsequent remedial measures to which he was referring. At the conclusion of the trial, the jury returned a verdict in favor of Summit Manufacturing. On June 11, 1996, plaintiff- appellant filed a timely notice of appeal from the judgment of the trial court. II. FIRST ASSIGNMENT OF ERROR Carl Elder's, plaintiff-appellant's, first assignment of error states: THE TRIAL COURT'S INCONSISTENT RULINGS CONCERNING THE ADMISSIBILITY OF A PRIOR SIMILAR ACCIDENT WERE PREJUDICIAL AND ERRONEOUS. -6- A. THE ISSUE RAISED: ADMISSIBILITY OF PRIOR ACCIDENT. Plaintiff-appellant argues, through his first assignment of error, that the trial court incorrectly excluded the proffered testimony of Carlos Borrero pertaining to a similar injury Borrero suffered while working on the identical recutter machine upon which plaintiff-appellant sustained injury approximately one month later. Specifically, plaintiff-appellant maintains that Borrero's injury occurred under circumstances that were substantially similar to those present in the case at bar and therefore Borrero's testimony should have been admitted. It is plaintiff-appellant's position that instead of applying the substantially similar standard of admissibility of prior accidents set forth in Renfro v. Black (1990), 52 Ohio St.3d 27, the trial court applied a higher standard, exact similarity, to exclude relevant, competent evidence. Plaintiff-appellant's first assignment of error is not well taken. B. STANDARD OF REVIEW FOR ADMISSIBILITY OF PRIOR ACCIDENTS. In Renfro v. Black, supra, the Ohio Supreme Court, in dealing with the admissibility of prior accidents or occurrences, held: The law in the area of admissibility of 'prior accidents' or occurrences evidence was succinctly stated in McKinnon v. Skil Corp. (C.A. 1, 1981), 638 F.2d 270. There, the court considered admissibility of prior accident evidence in a products liability action concerning an allegedly defective Skil saw. The plaintiff attempted to introduce answers to interrogatories regarding prior personal injury accidents involving the Skil saw. The answers did not indicate how the -7- injuries occurred or whether they resulted from defective lower blade grounds. Plaintiff contended that the interrogatory answers were admissible on Skil's knowledge of prior accidents relevant to the duty to warn, to establish evidence of the existence of defect, causation, and negligent design, and to attack the credibility of the defendant's expert witness. The court held that '[e]vidence of prior accidents is admissible on the first four issues only if the proponent of the evidence shows that the accidents occurred under circumstances substantially similar to those at issue in the case at bar. *** (Citations omitted.) Id. at 277. See Hale v. Firestone Tire & Rubber Co. (C.A. 8, 1985), 756 F.2d 1322, 1332; P.B. Mutrie Motor Transp., Inc. v. Interchemical Corp. (C.A. 1, 1967), 378 F.2d 447, 450-451 (substantial identity); Jaffe v. Powell (1929), 121 Ohio St. 355, 169 N.E. 31, syllabus; Cottman v. Federman Co. (1942), 71 Ohio App. 89, 93 25 O.O. 435, 437, 47 N.E.2d 1009, 1011; Robitaille v. Netaco Community Theatres of North Attleboro, Inc. (1940), 305 Mass. 265, 25 N.E.2d 749. See, also, Felden v. Ashland Chem. Co. (1993), 91 Ohio App.3d 48, 60-61. A trial court is vested with broad discretion when determining admissibility of such evidence and the trial court's determination will not be disturbed on appeal absent a clear showing of abuse of discretion. Warsham v. A. H. Robins Co. (C.A. 11, 1984), 734 F.2d 676, 686; Rigby v. Lake Cty. (1991), 58 Ohio St.3d 269, 271. 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. Wilmington Steel Products, Inc. v. Cleve. Elec. Illum. Co. (1991), 60 Ohio St.3d 120, 122. -8- -9- C. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION BY EXCLUDING THE TESTIMONY OF CARLOS BORRERO. In the case sub judice, a review of the record demonstrates that the trial court did not abuse its discretion by excluding the testimony of Carlos Borrero regarding Borrero's injuries suffered on the same recutter machine at Summit Manufacturing that plaintiff-appellant was operating at the time of his injury. Initially, the trial court found that Borrero could, in fact, testify as to the circumstances which lead to his injury. However, after reconsidering this ruling, the trial court apparently determined that, since Borrero was injured while actually operating the recutter machine (i.e., loading and/or unloading the adhesive product from the shaft) and plaintiff- appellant was injured while attempting to clean the rotating shaft with a strip of sandpaper, the underlying circumstances of the two injuries in question were not substantially similar and therefore Borrero's injuries were not relevant to plaintiff- appellant's intentional tort claim. While this constitutes a subtle distinction, it is a significant difference nonetheless given the different purpose, required movements and proximity of the operator's hands to the recutter machine during the two different procedures. Accordingly, given the difference in the underlying circumstances of the two injuries, it is apparent that the trial court did not abuse its discretion by excluding the testimony of Carlos Borrero. Deffinbaugh v. Ohio Turnpike Comm. (1990), 67 Ohio App.3d 692, 697. This is particularly true in -10- light of the fact that, in spite of the trial court's ruling, the jury heard numerous references to Carlos Borrero's injury through the testimony of other witnesses and still concluded that plaintiff-appellant's intentional tort claim did not contain merit. Plaintiff-appellant's first assignment of error is not well taken. III. SECOND ASSIGNMENT OF ERROR Carl Elder's, plaintiff-appellant's, second assignment of error states: THE TRIAL COURT'S REFUSAL TO ADMIT EVIDENCE OF SUBSEQUENT REMEDIAL MEASURES, FOR PURPOSES OF IMPEACHMENT OF FEASIBILITY OF PRECAUTIONARY MEASURES UNDER OHIO EVIDENCE RULE 407, WAS PREJUDICIAL AND ERRONEOUS. A. THE ISSUE RAISED: ADMISSION OF SUBSEQUENT REMEDIAL MEASURES. Plaintiff-appellant argues, through his second assignment of error, that the trial court incorrectly excluded evidence pertaining to subsequent remedial measures made to the individual recutter machines and the operating procedures for the machines by Summit Manufacturing. Specifically, plaintiff-appellant maintains that Summit Manufacturing subjected itself to impeachment regarding subsequent remedial measures by maintaining that the unguarded rotating shaft of the recutter machine was, in fact, a safety feature as long as the machine operator kept their hands above the shaft. (Tr. 183.) In addition, plaintiff- appellant argues that, since Summit Manufacturing maintained before and during trial that the recutter machines were safe and -11- no safety improvements could be made to the machinery, evidence of subsequent remedial measures should have been admitted pursuant to the feasibility of precautionary measures exception to Evid.R. 407. Plaintiff-appellant's second assignment of error is not well taken. B. STANDARD OF REVIEW FOR SUBSEQUENT REMEDIAL MEASURES. Evid.R. 407, which deals with the admission of subsequent remedial measures, states: 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 impeachment. In Feldon v. Ashland Chem. Co., supra, this court, in discussing Evid.R. 407, found: Evid.R. 407 prohibits the admission at trial of any remedial measure which is offered to prove negligence or culpable conduct. Evid.R. 407, however, does not prohibit testimony as to remedial measures when offered to show ownership or control, the feasibility of precautionary measures or impeachment purposes. Cf. Coggiano v. Medtrovic, Inc. (1988), 47 Ohio App.3d 29, 547 N.E.2d 389; E. Ohio Gas Co. v. Van Orman (1931), 41 Ohio App. 56, 179 N.E. 147; Ashtabula v. Bartram (1888), 3 Ohio C.C. 640, 2 Ohio C.D. 372. Id. at 59. -12- In McFarland v. Bruno Mach. Corp. (1994), 68 Ohio St.3d 305, the Ohio Supreme Court set forth the underlying policy considerations behind Evid.R. 407 as follows: The policy reasons for Evid.R. 407 have been stated as resting on two grounds. The first justification for the rule is that evidence of subsequent remedial measures is thought to have minimal or nonexistent probative value in establishing negligence. 1 Weissenberger, Ohio Evidence (Rev. 1988) 42, Section 407.3. Taking subsequent remedial action is not an admission of negligence. The rationale is that the injury may have been caused by reason of mere accident or through the plaintiff's contributory negligence. 1 Weissenberger, supra at 42-43. See, also, Giannelli, Ohio Rules of Evidence Handbook (4 Ed. 1993), 90-91. The second explanation for excluding evidence under this rule is based on the social policy of encouraging repairs or corrections. Weissenberger, supra, at 43; and Giannelli, supra, at 91. See, also, Staff Note to Evid.R. 407. The argument behind this policy reason is that a defendant would be less likely to take subsequent remedial measures if the repairs or corrections could be used as evidence against the defendant at trial. Id. at 307-308. C. STANDARD OF REVIEW FOR MOTION IN LIMINE. A motion in limine is a preliminary and temporary exclusion of evidence by the trial court. State v. Grubb (1986), 28 Ohio St.3d 199. Rather, a motion in limine constitutes a preliminary interlocutory order precluding questions being asked in a certain area until the trial court can determine from the total circumstances of the case whether the evidence is admissible. Riverside Methodist Hospital Assn. of Ohio v. Guthrie (1982), 3 -13- Ohio App.3d 308, 310. It is incumbent upon the non-moving party who has been temporarily precluded from introducing the disputed evidence to proffer the evidence when the issue is reached during the trial. Evid.R. 103(A)(2). If a proffer is not made the party seeking to introduce the evidence in question waives the error on appeal. State v. Tamulewicz (Oct. 13, 1994), Cuyahoga App. No. 66126. However, a proffer is not required if the substance of the excluded evidence is apparent from the context of questioning by counsel or if the evidence was excluded during cross-examination. Grubb, supra, at 202; Evid.R. 103(A)(2); State v. Gilmore (1986), 28 Ohio St.3d 190. D. THE TRIAL COURT DID NOT ERR IN EXCLUDING EVIDENCE OF SUBSEQUENT REMEDIAL MEASURES. In the case sub judice, a review of the record demonstrates that, although plaintiff-appellant proffered the excluded testimony of Carlos Borrero for the record, plaintiff-appellant did not seek to introduce evidence pertaining to subsequent remedial measures by Summit Manufacturing through proffer or otherwise nor is the substance of the excluded evidence apparent from the context of the questioning by plaintiff-appellant's counsel. In fact, nowhere in the record does plaintiff-appellant specifically identify the subsequent remedial measures referred to in the instant assignment of error. Without knowing the substance of the excluded evidence, it is not possible to determine whether the evidence in question was admissible under the relevant exceptions to Evid.R. 407. -14- Magistrelli v. Toyoto Corp. (July 6, 1994), Summit App. No. 16461, unreported; State v. Tamulwicz, supra. As a result, appellate review of the claimed error regarding evidence of subsequent remedial measures has been rendered impossible. Plaintiff-appellant's second assignment of error is not well taken. Judgment of the trial court is affirmed. -15- It is ordered that appellee recover of appellant 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 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. DYKE, J. and SPELLACY, J., CONCUR. DAVID T. MATIA PRESIDING 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 .