COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71658 LORI ANDREWS, ETC. ET AL.: JOURNAL ENTRY : AND Plaintiffs/Appellees: OPINION Cross-Appellants : : -vs- : : RISER FOODS, INC., ET AL.: : Defendants-appellants: : and : : GENE PTACEK & SONS FIRE : EQUIPMENT CO., INC. : : Defendant/Appellee/Cross-: Appellee : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 16, 1997 CHARACTER OF PROCEEDING: Civil appeal from the Court of Common Pleas Case No. CV-283423 JUDGMENT: Affirmed in Part, Reversed in Part and Remanded. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs/Appellees/ For Defendants/Appellants: Cross-Appellants: ROGER H. WILLIAMS, ESQ. GARY D. SMITH, ESQ. WILLIAMS & SENNETT CO. 11221 Pearl Road 126 West Streetsboro St. Strongsville, Ohio 44136 Hudson, Ohio 44236 For Defendant/Appellee/ Cross-Appellee: JOSEPH G. RITZLER, ESQ. KELLER & CURTIN CO., L.P.A. 330 Hanna Building -2- 1422 Euclid Avenue Cleveland, Ohio 44115-1901 -3- DYKE, J.: Appellant, Riser Foods, Inc. appeals from a judgment entered on a jury verdict in favor of appellees, Lori Andrews and Justin Andrews. Appellees/cross-appellants appeal the denial of prejudgment interest, and the grant of a directed verdict in favor of cross-appellee, Gene Ptacek & Sons Fire Equipment Co., Inc.. This court has been informed that cross-appellants settled with cross-appellee, Gene Ptacek & Sons, on September 30, 1997. Therefore, cross-appellant's third assignment of error will not be considered. As to the remaining assignments of error, we reverse the trial court's denial of the motion for prejudgment interest, and otherwise, affirm. On March 10, 1994, Justin Andrews, age 5, and his mother Lori Andrews, went shopping at a Jax Discount Store owned by appellant- Riser Foods, Inc. Justin was injured when a fire extinguisher fell on his foot. The fire extinguisher was mounted on a square column, located in the front of aisle five. The front section of aisle five contained diapers and baby supplies. The column on which the fire extinguisher was mounted was located fifteen to eighteen inches away from the shelves on one side of the aisle. The fire extinguisher was mounted on the side of the column facing the shelves, leaving a gap of only ten to thirteen inches between the fire extinguisher and the shelves. The shelves were stocked with goods, inviting customers into the narrow passage way. Lori Andrews testified that she was walking in the front -4- section of aisle 5 on the wide side of the aisle. Justin walked in the narrow space between the column and the shelves. The fire extinguisher fell on Justin's foot. She did not see it fall, and did not know what caused it to fall. Justin Andrews testified, I was walking. Then I looked back. Then it just fell on my foot. He did not touch the extinguisher or brush against it. Louis Wenner, the acting store manager, testified that immediately after the accident, he checked the bracket of the fire extinguisher. He testified the bracket was secure, although his testimony is somewhat confusing in this respect. Nothing was wrong with the part on the fire extinguisher that fits into the bracket. The store never had a problem with fire extinguishers falling. Diane Moore, from Riser's risk management department, took photos of the fire extinguisher seven months after the accident. The photos show the bracket on the fire extinguisher in question was firmly in place. Moore testified that the Jax store had been purchased around 1989. The fire extinguishers had been in place for a long time . Walter Cygan, the plaintiff's safety expert, testified that the fire extinguisher was defective in the following respects: (1) The location of the fire extinguisher in the narrow passage subjected it to dislodgement. It would be safer to place the extinguisher on the adjacent face of the column, although the fire extinguisher could come into contact with shopping carts on any side of the column. (2) The National Fire Protection Association's -5- Standard for Portable Fire Extinguishers, NFPA 10", required that if a fire extinguisher was subject to dislodgement, brackets specifically designed to prevent dislodgment be used. Cygan described several different types of brackets that would have prevented the fire extinguisher from becoming dislodged. (3) The bracket was hung upside down, making the bracket weaker. (4) The bracket was secured with mismatched screws. Cygan stated that if the above conditions did not exist, the accident would not have happened. Cygan proposed the accident may have happened because another customer brushed against the fire extinguisher or Justin unknowingly brushed against the fire extinguisher. Defense counsel theorized that a customer or employee may have purposely moved the fire extinguisher out of its bracket. Cygan also stated that the NFPA 10 imposes a duty on the premises owner to inspect the fire extinguisher every thirty days, and keep records of the inspection. Wenner, the acting manger, testified that such inspections were not performed. According to Cygan, if the thirty day inspections were conducted, Riser would have remedied the hazardous condition. As a result of the accident, Justin suffered a fracture of his big toe, and had to undergo a percutaneous pinning surgery. The defense rested without presenting any evidence. The jury returned a verdict of $45,000 in favor of Justin Andrews and $5,000 in favor of Lori Andrews. I. -6- Appellant's first assignment of error states: THE TRIAL COURT IMPROPERLY DENIED DEFENDANTS- APPELLANTS/CROSS-APPELLEES RISER FOODS, INC.'S MOTION FOR A DIRECTED VERDICT AT THE CLOSE OF PLAINTIFF'S CASE IN CHIEF SAID MOTION RENEWED AND DENIED AT THE CLOSE OF ALL THE EVIDENCE. A defendant's motion for directed verdict must be denied if there is substantial competent evidence which would permit reasonable minds to come to different conclusions as to whether the plaintiff proved each essential element of his case. Ramage v. Cent. Ohio Emergency Services, Inc. (1992), 64 Ohio St.3d 97, 109, Wagner v. Roche Laboratories (1996), 77 Ohio St.3d 116, 119, See Civ. R. 50(A)(4). Appellant's motion for directed verdict was properly denied if there was substantial competent evidence from which reasonable minds could find that appellees proved the essential elements of negligence. These elements are: the existence of a duty, breach of the duty, and an injury resulting proximately therefrom. Jeffers v. Olexo (1989), 43 Ohio St.3d 140, 142, citing Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St.3d 75, 77. Riser Foods had a duty to Justin Andrews, an invitee, to exercise a duty of ordinary care for his safety, and keep the premises in a reasonably safe condition. Presley v. Norwood (1973), 36 Ohio St.2d 29, 31. In order for an invitee to show the premises owner breached this duty of care, the invitee must show that either the owner created the condition, had actual knowledge of the condition or the danger existed for a sufficient length of time to establish constructive knowledge of the condition. Baudo -7- v. Cleveland Clinic Foundation (1996), 113 Ohio App.3d 245, citing Johnson v. Wagner Provision Co. (1943), 141 Ohio St. 584, 589. The plaintiff's expert testified that the fire extinguisher was in a defective and dangerous condition due to its location, type of brackets used, how the brackets were hung and the use of mismatched screws. The store's risk management employee testified the fire extinguishers had been in place for a long time. The trier of fact could determine that Riser Foods either had constructive knowledge of the condition, because it existed for a long time, or that Riser created the condition. A reasonable trier of fact could find that Riser should have known, in the exercise of ordinary care, that the condition presented a hazard. Cygan also testified that appellant had a duty to inspect every thirty days, and would have noticed these conditions if the inspection was performed. Thus, there was sufficient competent evidence from which reasonable minds could conclude that appellant Riser Foods breached its duty of care to maintain the fire extinguisher in a reasonably safe condition. There was also sufficient evidence from which the jury could find that the failure of Riser to maintain the fire extinguisher in a safe condition proximately caused the injury. Plaintiff's expert testified that the injury would not have happened if the defects did not exist. The trier of fact could decide that Wenner's testimony that the bracket was secure was not credible. Even if the bracket was securely mounted to the column, the fire extinguisher could have been knocked off its bracket, due to the -8- unsafe location and failure to use a different type of bracket. The jury could find that it was more probable than not that the fire extinguisher fell due to one or more of the defects mentioned by Cygan, rather than a deliberate act by a third person. There was substantial, credible and probative evidence from which the trier of fact could find that plaintiff-appellees proved all the elements of negligence. The trial court did not err in denying Riser Food's motion for a directed verdict. Accordingly, this assignment of error is overruled. II. Appellant's second assignment of error states: THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN ALLOWING INTO EVIDENCE PHOTOGRAPHS THAT WERE IRRELEVANT AND PREJUDICIAL TO THE DEFENDANTS-APPELLANTS/CROSS-APPELLEES AND INTRODUCED WITHOUT PROPER AUTHENTICATION. Riser Foods objected to plaintiff's photographic exhibits 10, 11, 12 and 26 because they were not properly authenticated, they were irrelevant and/or more prejudicial than probative. The requirement of authentication is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. Evid. R. 901(A), Hall v. Johnson (1993), 90 Ohio App.3d 451, 455. To authenticate a photograph, it is not required to show who took the photograph or when it was taken. State v. Brooks(1995), 101 Ohio App.3d 260, 264. A crime scene photograph was properly authenticated when an officer at the scene testified the photograph accurately depicted the crime scene. Id. In this case, there was no testimony as to who took exhibits -9- 10, 11 and 26, or when the pictures were taken. Lori Andrews and Louis Wenner testified that exhibits 10 and 11 accurately depicted the store on the date of the accident. Cygan testified that exhibit 26 depicted a fire extinguisher in a glass box, which was one method to prevent a fire extinguisher from becoming dislodged. This evidence was sufficient to establish that the photographs were what its proponent claimed. Diane Moore testified that she took the photograph labeled exhibit 12, on October 27, 1994. Thus, all the photographs were properly authenticated. Exhibits 10 and 11 were photographs of a column in the rear of aisle 5, which was located the same distance from the shelves as the front column. These pictures were relevant to demonstrate the distance from the column to the shelves. See Evid. R. 402. Exhibits 8 and 9 of the front of aisle 5 do not show the distance as clearly. Appellant asserts that the probative value of exhibits 10 and 11 were substantially outweighed by the danger of unfair prejudice. Evid. R. 403, State v. Jackson (1991), 57 Ohio St.3d 29, 37-38, Weidner v. Blazic (1994), 98 Ohio App.3d 321, 334. The trial court's decision as to whether evidence is more probative than prejudicial should only be overturned if there is a clear abuse of discretion. Weidner, supra, State v. Landrum (1990), 53 Ohio St.3d 107, 121. Exhibits 10 and 11 show the distance between the shelves and the fire extinguisher, allegedly a defect which caused the accident. Appellant asserts that use of these photographs was -10- misleading to the jury, because the fire extinguisher on the rear column was teetering away from the column, and the front fire extinguisher was not. The exhibits were identified at all times as pictures of the extinguisher in the rear of the store, that was not involved in the accident. The trial judge did not abuse his discretion in finding that the probative value of these photographs was not outweighed by the danger of unfair prejudice. Exhibit 12 was the only close up photograph of the fire extinguisher which fell on Justin, but the photograph was taken seven months after the accident. Exhibit 12 was relevant to show the type and size of the fire extinguisher, and how it was hung on the column. This photograph was not more prejudicial than probative. Exhibit 26 was a fire extinguisher in a glass box. The exhibit was relevant to show a method of protecting the fire extinguisher from becoming dislodged. Plaintiff's expert conceded he would not recommend putting breakable glass in the children's aisle. This admission goes to the weight of the photographic evidence, not the admissibility. State v. Brooks (1995), 101 Ohio App.3d 260, 264. The trial court did not abuse its discretion in finding exhibit 26 admissible. The trial court did not abuse its discretion in admitting the photographs. See generally Columbus v. Taylor (1988), 39 Ohio St.3d 162, 164. Accordingly, this assignment of error is overruled. -11- III. Appellant's third assignment of error states: THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN DENYING THE MOTION OF THE DEFENDANT-APPELLANTS FOR A NEW TRIAL, OR IN THE ALTERNATIVE MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT. The trial court did not err in denying the motion for judgment notwithstanding the verdict, because the same test is used as for a motion for a directed verdict. Chemical Bank of New York v. Newman (1990), 52 Ohio St.3d 204. Appellant asserts a new trial should have been granted because the verdict was against the manifest weight of the evidence. Civ. R. 59(A)(6). A judgment supported by competent, credible evidence is not against the manifest weight of the evidence. Seasons Coal Co., Inc. v. City of Cleveland (1984), 10 Ohio St.3d 77. In this case, there was competent, credible evidence proving each element of negligence. Appellant asserts a new trial should be granted because the judgment was contrary to law, and there was an error of law. Civ. R. 59(A)(7), (9). We find that there was no error of law mandating a new trial. According to appellant, the jury awarded excessive damages appearing to have been under the influence of passion or prejudice, requiring a new trial. Civ. R. 59(A)(4). To mandate a new trial under Civ. R. 59(A)(4), it must be shown that the excessive verdict was the result of passion or prejudice, and was so overwhelmingly disproportionate in amount as to shock the sensibilities. Pena v. -12- Northeast Ohio Emergency Affiliates, Inc. (1995), 108 Ohio App.3d 96, Jeanne v. Hawkes Hosp. Of Mt. Carmel (1991), 74 Ohio App.3d 246, 257. The mere return of a large verdict does not warrant a new trial, unless there is a showing of passion or prejudice. Betz v. Timken Mercy Med. Ctr. (1994), 96 Ohio App.3d 211. Appellant does not allege that the jury considered improper evidence or arguments or that there was any other improper conduct, only that the amount of the verdict was excessive. See Dillon v. Bundy (1991), 72 Ohio App.3d 767. The amount of the verdict in this case, $45,000 for Justin and $5,000 for his mother were not so disproportionate as to shock the sensibilities, considering the evidence. The evidence concerning damages was as follows: The injury was painful. Justin, only five years old, was afraid during various medical procedures. Pins were drilled into his bones to hold them in place. The pins protruded a quarter inch out of his skin, until they were removed two weeks after the surgery. The medical expenses were approximately $3,209.00. Justin remained in a wheelchair for eight weeks after his surgery. His mother had to drive him to school and care for him, diverting her time from her other four children. Justin was unable to assist his mother with chores. Justin's activities were limited through the rest of the school year and summer vacation. Dr. Afonja, Justin's orthopedic surgeon, testified that additional surgery would probably be required in the future. There was evidence of $3,209 medical expenses, pain and -13- suffering, future medical expenses and pain and suffering and loss of consortium. See Fantozzi v. Sandusky Cement Prod. Co. (1992), 64 Ohio St.3d 601, 615, Patton v. City of Cleveland (1994), 95 Ohio App.3d 21, 30. The plaintiffs asked the jury to return a verdict between $75,000 and $95,000. Appellant did not demonstrate that the verdict was a result of passion and prejudice, mandating a new trial. The trial court also properly denied appellant's motion for a remittitur. A remittitur can be granted to reduce the amount of the verdict if the verdict was not a result of passion or prejudice, but was not warranted by the evidence. Cox v. Oliver Machine Co. (1987), 41 Ohio App.3d 28, 35, see also Patton, supra at 33. In this case, the amount of the verdict was not against the weight of the evidence, so a remittitur was not proper. Id. The trial court did not abuse its discretion in denying the motion for a new trial or a remittitur. The trial court did not err in denying appellant's motion for a judgment notwithstanding the verdict. Accordingly, this assignment of error is overruled. IV. Cross-appellants', Lori and Justin Andrews', first assignment of error states: THE TRIAL COURT IMPROPERLY DENIED PLAINTIFF/CROSS- APPELLANTS' MOTION FOR PREJUDGMENT INTEREST PURSUANT TO R.C. 1343.03(C) WITHOUT FIRST CONDUCTING A HEARING AS REQUIRED BY STATUTE. The trial court is required to conduct an oral hearing before -14- ruling on a timely motion for prejudgment interest. Kluss v. Alcan Aluminum Corp. (Cuyahoga App. 1995), 106 Ohio App.3d 528, Lovewell v. Physicians Ins. Co. (1997), 79 Ohio St.3d 143, 147. We note that in Pawul v. Pawul (1996), 113 Ohio App.3d 548, 551, this court stated that a hearing on a motion for prejudgment interest is discretionary with the trial court. Pawul incorrectly failed to follow Kluss or even cite to the Kluss decision. In any case, Pawul is distinguishable because that decision reversed the trial court's denial of a hearing because there was evidence that appellee did not make good faith efforts to settle. Additionally, Pawul has overruled by Lovewell, supra, an Ohio Supreme Court decision which stated that a hearing is required on a motion for prejudgment interest. The trial court erred in denying cross- appellants' motion for prejudgment interest without first conducting an oral hearing. Accordingly, this assignment of error is sustained. V. Cross-appellants' second assignment of error states: THE TRIAL COURT IMPROPERLY EXCLUDED FROM EVIDENCE AND TESTIMONY APPENDIX A-4-4 TO THE NATIONAL FIRE PROTECTION ASSOCIATION STANDARD #10 WHICH IS INCORPORATED BY REFERENCE IN THE OHIO ADMINISTRATIVE CODE (FIRE CODE). This assignment of error is moot, considering our disposition of appellant's assignments of error, above, and the settlement and dismissal of Gene Ptacek and Sons, Inc. from this appeal. Accordingly, this assignment of error is dismissed as moot. The decision of the trial court denying plaintiffs/cross- -15- appellants' motion for prejudgment interest is reversed and remanded for a hearing. Otherwise, the decision of the trial court is affirmed. -16- It is ordered that appellees, Lori Andrews and Justin Andrews, recover of appellant, Riser Foods, 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. SWEENEY, C.J., AND MCMONAGLE, J., CONCUR. ANN DYKE 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 .