COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71639 MATTHEW FRANKO, A MINOR : : Plaintiffs-Appellants : : JOURNAL ENTRY -vs- : AND : OPINION MARIA M. PALCKO : : Defendant-Appellee : DATE OF ANNOUNCEMENT OF DECISION OCTOBER 2, 1997 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CV-288359 JUDGMENT: AFFIRMED DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-Appellants: BRENDAN E. DELAY (#0036929) LAKESIDE PLACE - SUITE 450 323 LAKESIDE AVENUE w. CLEVELAND, OH 44113 TIMOTHY R. CLEARY (#0023883) CLEARY & DELAY CO., L.P.A. SUMMIT TWO, SUITE 220 2 SUMMIT PARK DRIVE INDEPENDENCE, OHIO 44131 For Defendant-Appellee: C. RICHARD MCDONALD (#0017537) TIMOTHY L. KERWIN (#0055363) DAVIS & YOUNG 1700 MIDLAND BUILDING CLEVELAND, OHIO 44115 SPELLACY, J.: 2 Plaintiffs-appellants Matthew and Timothy Franko, minors, and Michael and Barbara Franko, individually and as parents and natural guardians of Matthew and Timothy Franko ( appellants ) appeal from the jury verdict finding defendant-appellee Maria M. Palcko not negligent for the injuries received by the children when they were struck by Palcko's automobile. Appellants' assign the following errors for review: . THE TRIAL COURT ERRED WHEN IT OVERRULED PLAINTIFFS/APPELLANTS' PRE-TRIAL MOTION IN LIMINE, PERMITTING DEFENDANT/APPELLANT (SIC) TO PRESENT THE INCOMPATIBLE DEFENSES OF UNAVOIDABLE ACCIDENT AND COMPARATIVE NEGLIGENCE IN OPENING STATEMENT. . THE TRIAL COURT ERRED WHEN IT OVERRULED PLAINTIFFS/APPELLANTS' MOTION FOR PARTIAL JUDGMENT ON THE PLEADINGS, PERMITTING DEFENDANT/APPELLANT (SIC) TO PRESENT THE INCOMPATIBLE DEFENSES OF UNAVOIDABLE ACCIDENT AND COMPARATIVE NEGLIGENCE DURING CROSS-EXAMINATION, IN HER CASE-IN- CHIEF AND DURING CLOSING STATEMENT. . THE TRIAL COURT ERRED WHEN IT LIMITED THE TESTIMONY OF PLAINTIFFS/APPELLANTS' ACCIDENT RECONSTRUCTION EXPERT. . THE COURT ERRED WHEN IT PERMITTED AN ARGUMENT THAT ALLUDED TO AN EXLUDED (SIC) DEFENSE OF NEGLIGENT PARENTAL SUPERVISION. . THE TRIAL COURT ERRED WHEN IT ALLOWED THE DIAMETRICALLY OPPOSED DEFENSES OF UNAVOIDABLE ACCIDENT AND COMPARATIVE NEGLIGENCE TO BE PRESENTED AS INSTRUCTIONS TO THE JURY. Finding the assignments of error to lack merit, the judgment of the trial court is affirmed. I. 3 On June 2, 1994, eight-year old Matthew Franko and his five- year old brother Timothy were attempting to cross Royalwood Road in Broadview Heights. Palcko was driving west on Royalwood Road. She testified her speed was between thirty and thirty-five miles per hour which is within the thirty-five mile per hour speed limit. Palcko came over a rise in the road but did not at first notice the children. Palcko saw the children when she was approximately two to three car lengths away as they were walking or running across the street. Palcko applied her brakes but was unable to stop before her automobile struck the children. Both Matthew and Timothy sustained injuries in the accident. A complaint was filed against Palcko by the children and their parents. The case proceeded to trial. The jury found Palcko was not negligent in injuring Matthew or Timothy. Appellants are appealing from this verdict. II. Appellants' first, second, and fifth assignments of error will be addressed together as all involve similar issues of law. Appellants' basic premise is that the defense should not have been permitted to present arguments on both unavoidable accident and comparative negligence. Appellants contend the two theories are incompatible and Palcko should have been foreclosed from relying on both. Appellants first argue that defense counsel alluded to and argued unavoidable accident and that five-year old Timothy was negligent during opening argument. However, appellants failed to 4 object to the statements during trial and have waived any assertion of error with regard to opening argument. Jones v. Olcese (1991), 75 Ohio App.3d 34. Appellants next assert the trial court erred when it overruled their motion for partial judgment on the pleadings asking that Palcko not be permitted to argue both unavoidable accident and comparative negligence during trial. Part of appellants rather disjointed argument is that the defense inferred both boys were comparatively negligent even though Timothy, because of his age, cannot be negligent as a matter of law. Appellants maintain any allusion to negligence on the part of any party to the accident is incompatible with a defense of unavoidable accident. Unavoidable accident was defined in Uncapher v. Baltimore & Ohio Rd. Co. (1933), 127 Ohio St. 351, 358, as: An unavoidable accident is such an occurrence or happening as, under all the attendant circumstances and conditions, could not have been foreseen or anticipated in the exercise of ordinary care as the proximate cause of injury by any of the parties concerned. An unavoidable accident does not occur when one of the parties was negligent. Id. An instruction on unavoidable accident may be appropriate in cases where children are injured when running into the street. Grindell v. Huber (1971), 28 Ohio St.2d 71. There was no error in Palcko arguing both comparative negligence and unavoidable accident. The primary issue in this case was whether Palcko was negligent in causing this accident. If the jury found she was negligent, then Palcko could argue Matthew 5 also was negligent under a theory of comparative negligence. As the jury found Palcko was not negligent in causing the injuries to either boy, Palcko was not liable under any theory. There was no error in permitting Palcko to present arguments under both theories. A party may present theories which are incompatible with each other as long as there is evidence admitted to support the arguments. Here, there was evidence which indicated Matthew may have been negligent in the manner in which he attempted to cross the street with his brother. There also was evidence that Matthew's negligence, if any, was not enough to rebut the presumption he was not negligent as a matter of law due to his age. Therefore, the defense could present arguments on both of these issues. Appellant also asserts the trial court erred by instructing the jury on both unavoidable accident and comparative negligence. The purpose of a court's instructions to a jury is to clearly define the issues in the case and by a statement of the law applicable to the facts developed at the trial to assist the jury in arriving at a proper verdict. Wasserman v. Buckeye Union Cas. Co. (1972), 29 Ohio App.2d 7, 18. The instructions on both unavoidable accident and comparative negligence clearly and fairly expressed the law. The jury found Palcko was not negligent. If there was any error in the charge, it was cured by the verdict. See Beers v. Mally (August 7, 1995), Morrow App. No. CA-810, unreported. Appellants' first, second, and fifth assignments of error are 6 overruled. III. In their third assignment of error, appellants assert the trial court erred when it limited the testimony of their accident reconstruction expert. Appellants then direct this court to review their Brief In Opposition to Defendant's Motion In Limine To Exclude Testimony of James D. Madden for their argument for this assignment of error. An appellant's argument in support of an assigned error must be presented within the body of the merit brief. See App.R. 16; Williams v. Waller (Dec. 26, 1996), Cuyahoga App. No. 69069, unreported. Appellants' arguments with regard to this assignment of error are not properly before this court and will be disregarded. Appellants' third assignment of error is overruled. IV. In their fourth assignment of error, appellants object to a portion of defense counsel's closing argument. Defense counsel stated the hypothetical situation of what would have happened had the children's father been present at the scene and supervising the children. Appellants did not object to the argument. The failure to object to any alleged misconduct of opposing counsel during closing argument waives any error associated with the alleged misconduct. Jones v. Olcese (1991), 75 Ohio App.3d 34. Appellants' fourth assignment of error is meritless. Judgment affirmed. 7 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. JAMES D. SWEENEY, C.J. and PATRICIA A. BLACKMON, J. CONCUR. LEO M. SPELLACY Judge N.B. This is an announcement of the court's decision. See App.R. 8 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(B) 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 .