COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71552 ANDREA HENSLEY, ET AL., : : Plaintiffs-Appellees : : JOURNAL ENTRY vs. : AND : OPINION RINI-REGO STOP-N-SHOP, ET AL.,: : Defendants-Appellants : DATE OF ANNOUNCEMENT OF DECISION : AUGUST 7, 1997 CHARACTER OF PROCEEDING: : Civil appeal from : Common Pleas Court : Case No. 284358 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiffs-appellees: Harvey Kugelman 800 Standard Building 1370 Ontario Street Cleveland, Ohio 44113 For defendants-appellants: Robert C. McClelland Lynn R. Grabiak RADEMAKER, MATTY, McCLELLAND & GREVE 1775 Illuminating Building 55 Public Square Cleveland, Ohio 44113 2 NAHRA, J.: Appellants, Rini-Rego Stop-n-Shop Supermarkets, Inc. (hereinafter Rini-Rego ) and Riser Foods, Inc., bring this appeal following a jury trial in which appellee Andrea Hensley was awarded $114,535.35 and appellee Kenneth Hensley was awarded $5,000.00. On June 8, 1993, Andrea Hensley slipped and fell in Rini- Rego's Supermarket in Parma, Ohio. She sustained injuries to her left leg, right knee, right elbow, right ankle, and right foot as a result of the fall. She required surgery to repair a torn lateral meniscus of her knee and for chondroplasty, a procedure to alleviate chondromalacia. Hensley's surgeon testified that her injuries, despite treatment, were permanent in nature. Prior to closing argument, Hensley introduced her exhibits, which included a mortality table which indicated her life expectancy to be 39.2 years. Additionally, an instruction relating to the use of mortality tables was included in Hensley's proposed jury instructions filed before trial. In closing argument to the jury, Hensley's counsel did not suggest that the jury calculate its damages on a per diem basis until its final closing statement. Appellants' objection to this argument was overruled and they did not ask the court for the ability to counterargue the issue. In its instructions to the jury, the trial court informed the jury that counsels' statements are not to be considered as evidence. Appellants' sole assignment of error reads: 3 RINI-REGO'S RIGHT TO REBUTTAL WAS VIOLATED WHEN THE PRESENTATION OF PER DIEM (SIC) DAMAGES WAS ADMITTED OVER OBJECTION DURING PLAINTIFF'S FINAL CLOSING. Appellant argues that the presentation of a per diem calculation of damages was improper during appellees' final argument, citing Grossnickle v. Village of Germantown (1965), 3 Ohio St.2d 96, 209 N.E.2d 442 and Bauman v. Schmitter (1989), 54 Ohio App.3d 51, 560 N.E.2d 827, jurisdictional motion overruled, 49 Ohio St.3d 716, 552 N.E.2d 945. In Grossnickle, the syllabus states that: 1. In an action for personal injuries for which money damages for pain and suffering are recoverable, it is permissible for counsel for the injured party to suggest in argument a daily monetary amount which, when multiplied by a factor fairly representative of the probable duration of the pain and suffering, illustrates the basis for the total amount sought as compensation therefor, if the court instructs the jury that such argument is not to be received as evidence. Making such suggestion for the first time in closing argument exceeds the bounds of propriety but does not constitute prejudicial error if no objection is interposed on that ground. Grossnickle, 3 Ohio St.2d 96, 209 N.E.2d 442. The Grossnickle court stated in its opinion that in approving the use of a per diem damages argument: Most of the cases favoring permitting the argument, and the better logic supporting them are based, in part, on the equal opportunity afforded the defense for counter- argument. Id. at 102, 209 N.E.2d at 447. After noting that the appellant in Grossnickle did not object to the timing of the argument and did not argue that the verdict was excessive, the court stated that we can only say that the judgment here is not invalid merely because the argument was made 4 in the absence of an objection on the ground of surprise or improper timing and in the absence of a request by appellant to counterargue. Id. (Emphasis added.) In Bauman, this court held in its syllabus that: . In a personal injury action, Grossnickle v. Germantown (1965), 3 Ohio St.2d 96, 32 O.O.2d 65, 209 N.E.2d 442, paragraph one of the syllabus, does not condemn the use of a mathematical formula in closing argument as a gauge to possible recoverable damages. Grossnickle requires only that defense counsel be given an opportunity for rebuttal. 54 Ohio App.3d 51, 560 N.E.2d 827. In Bauman, the appellant objected to appellee's argument, citing Grossnickle, supra, as support. However, the appellant failed to request an opportunity to counterargue the issue. We cited our interpretation of Grossnickle in Weiss v. Team Trucking, Inc.(Oct. 1, 1981), Cuyahoga App. No. 43380, unreported, where we found that Grossnicklerequires only that defense counsel be given an opportunity for rebuttal. Id. at 3; see, also, Miko v. Lincoln Nat'l. Corp. (Mar. 6, 1997), Cuyahoga App. No. 70826, unreported, at 3 ( Normally, if counsel impermissibly requests a specific monetary amount from the jury in closing rebuttal, the trial court can alleviate any prejudicial effect by permitting defense counsel the opportunity to rebut and/or by giving a curative instruction to the jury.) In Pruitt v. Midwest Transit (June 23, 1995), Muskingham App. No. 94-21, unreported, the court noted that the appellee had placed the court and its opponents on notice that it would make a per diem 5 argument in its closing argument by asking the court to take judicial notice of its use of a mortality table. Id. at 4. In this case, appellee introduced a mortality table as an exhibit, without objection by appellants, giving notice it would make a per diem argument regarding damages. Additionally, when appellants objected to the per diem argument, they failed to request an opportunity to counterargue this issue as required by our holding in Bauman. For these reasons, appellants' sole assignment of error is overruled Judgment affirmed. 6 It is ordered that appellees recover of appellants their 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, P.J., and PATTON, J., CONCUR. JOSEPH J. NAHRA 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 .