COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72006 PATRICIA J. BUCKLES, ADMRX. : OF THE ESTATE OF BERT : EISENMANN : : JOURNAL ENTRY PLAINTIFF-APPELLANT : : AND v. : : OPINION JAMES STEPANIK AND PITT- : OHIO EXPRESS, INC. : : DEFENDANTS-APPELLEES : : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 18, 1997 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas, Case No. CV-289063. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellant: James D. Shelby, Esq. 55 Public Square, Suite 1260 Cleveland, Ohio 44113-1992 Thomas J. Vozar, Esq. The Hanna Building 1422 Euclid Avenue, Suite 1330 Cleveland, Ohio 44115 For Defendant-appellees: Gregory T. Rossi, Esq. Sean E. Leuthold, Esq. Brian D. Sullivan, Esq. Reminger & Reminger 113 St. Clair Building Cleveland, Ohio 44114 -2- JAMES D. SWEENEY, C.J.: Plaintiff-appellant Patricia J. Buckles, Administrator of the Estate of Mr. Bert Eisenmann, appeals from: (1) the September 11, 1996 jury verdict in favor of defendants-appellees Mr. James Stepanik, Sr., and Pitt-Ohio Express, Inc. ( Pitt-Ohio ); and (2) the January 8, 1997 denial of a motion for a new trial subsequent to a hearing in open court. For the reasons adduced below, we affirm. A review of the record on appeal indicates that on February 4, 1995, Mr. James Stepanik was employed as a tractor-trailer driver for Pitt-Ohio on local city routes. On that date, the deceased, Mr. Bert Eisenmann was a truck mechanic and was employed by C & D Truck Repair, which contractually performed mechanic services at the Pitt-Ohio Express truck terminal located on Industrial Parkway in Cleveland, Ohio1. Mr. Stepanik had arrived for work at 7:30 a.m. that morning, picked up his route sheets, and inspected his tractor-trailer. This inspection noted a burned-out marker light on the top rear of the forty-five foot trailer, so Mr. Stepanik pulled the rig over to the garage to have the defect repaired prior to starting his daily run. The tractor was parked at a right-hand angle (R. 98), in a partially turned attitude (R. 125), and the engine was left running as Mr. Stepanik walked into the garage to seek assistance in the repairs. See Plaintiffs' Exhibit No. 15 (a drawing which depicts the position of the tractor-trailer and the fallen victim in relation to the garage). Another mechanic, Mr. 1Mr. Eisenmann had worked at Pitt-Ohio as a mechanic since 1988. The contract between Pitt-Ohio and C & D Truck Repair was not offered at trial. -3- Dennis Litto, told Mr. Eisenmann that as soon as he (Mr. Litto) was finished working on another truck, that Mr. Eisenmann could pull his truck into the garage to be repaired due to the inclement weather conditions. (R. 86.) While Mr. Stepanik waited inside the garage, Mr. Eisenmann left the garage building. As Mr. Eisenmann left the garage, Mr. Litto testified that Mr. Eisenmann asked Mr. Litto what was wrong with Mr. Stepanik's truck. When told about the burned-out lightbulb, Mr. Litto testified that Mr. Eisenmann said, f--k Jim and f--k his lights. (R. 113.) Mr. Litto, hearing this remark, believed that Mr. Eisenmann was going to get some breakfast as he left the garage. (R. 112.) At approximately 8:00 to 8:30 a.m., while Eisenmann was on top of an extension ladder placed against a Pitt-Ohio trailer and attempting to change the light bulb on the top rear center of that trailer, Mr. Stepanik, after being told by Mr. Litto to pull the truck into the garage for servicing, hurriedly exited the nearby garage building, mounted the cab of the attached tractor unit, checked his rear-view mirrors, and began to pull away in a forward direction in a right-hand turn. (R. 82-85.) In turning the tractor into the direction of the garage door, the tractor forced the right rear corner of the attached trailer to briefly pivot backward on its rear wheels causing Mr. Eisenmann and the extension ladder to fall backward, with Mr. Eisenmann striking his head upon the pavement. (R. 193-194.) The tractor had moved approximately five to ten feet before the driver saw through the passenger side rear-view mirror the victim's body prostrate on the ground. The driver stopped immediately. Within moments, people came to the aid of Mr. Eisenmann, who was then rushed to the hospital. Mr. -4- Eisenmann expired two days later, on February 8, 1994, as a result of injuries sustained in his fall from the ladder. Evidence produced by the vice-president of safety for Pitt- Ohio, Mr. Ronald Uriah, included two memorandums which were circulated to all employees of Pitt-Ohio and copied to the decedent. These memorandums, referenced as IOC's at trial, instructed personnel servicing power units to remove the keys from the ignition so as to prevent accidents involving the movement of the unit. Mr. Uriah testified that the decedent personally acknowledged that he had received these IOCs. Mr. Uriah also testified that the company and industry considered the power unit to not consist solely of the tractor: Instead, the power unit consists of both the tractor and the trailer when they are attached to one another. The jury, in answering an interrogatory put to it, found that defendants were not negligent. Three assignments of error are presented for review. I THE TRIAL COURT ERRED IN REFUSING TO GRANT A NEW TRIAL WHERE A VERDICT FINDING NO NEGLIGENCE ON THE PART OF A TRUCK DRIVER IS AGAINST THE WEIGHT OF THE EVIDENCE WHERE THE UNDISPUTED EVIDENCE IS THAT THE DECEDENT WAS KILLED WHILE WORKING AT THE REAR OF A TRUCK AND (1) THE TRUCK INITIALLY MOVED BACKWARD, WHICH MOVEMENT CAUSED DECEDENT'S DEATH, (2) THE TRUCK DRIVER ADMITTED HE DID NOT LOOK TOWARD THE REAR OF HIS TRUCK BEFORE GETTING IN THE TRUCK AND MOVING IT, (3) THE TRUCKING COMPANY'S SAFETY DIRECTOR ADMITTED THAT ULTIMATE RESPONSIBILITY FOR SAFE MOVEMENT OF A VEHICLE LIES WITH THE DRIVER, AND (4) THE TRUCK DRIVER MADE A STATEMENT ADMITTING HIS RESPONSIBILITY. The plaintiff's motion for new trial, which was heard by the -5- trial court in open court on January 7, 19972, alleged that: (1) the verdict was not supported by the weight of the evidence (Civ.R. 59[A][6]); and, (2) errors of law in the jury instructions and the admission of certain evidence (issues which are separately addressed in the second and third assignments below) were brought to the attention of the trial court (Civ.R. 59[A][9]).3 The arguments raised in the motion for new trial are substantially the same arguments presented in this appeal. The standard of review for a ruling on a motion for new trial is whether the trial court abused its discretion. Verbon v. Pennese(1982), 7 Ohio App.3d 182, 184. In addition, an appellate court should view the evidence before it favorably with regard to the trial court's action, where the trial court's decision involves questions of fact. Sanders v. Mt. Sinai Hosp. (1985), 21 Ohio App.3d 249. In the case sub judice, the evidence demonstrates that the driver, Mr. Stepanik, was unaware of the decedent's presence at the 2A transcript of the hearing on the motion for new trial is not included in the record on appeal. 3Civ.R. 59(A)(6) and (9) provide: (A) Grounds. A new trial may be granted to all or any of the parties and on all or part of the issues upon any of the following grounds: *** (6) The judgment is not sustained by the weight of the evidence; however only one new trial may be granted on the weight of the evidence in the same case; *** (7) Error of law occurring at trial and brought to the attention of the trial court by the party making the application; *** -6- rear of the tractor-trailer when the truck began to move toward the garage for repairs by the mechanic inside, Mr. Litto. Mr. Stepanik and Mr. Litto were both under the belief that Mr. Litto would be performing the repair to the lightbulb on the trailer. From the testimony of an eyewitness to the event, Pitt-Ohio truck driver Mr. Herman Smith, the evidence also supports the conclusion that the truck was not placed into a reverse gear when it began to move, thus was not backing up, but was instead in a forward gear as the tractor moved forward and the right rear corner of the trailer pivoted backward briefly. (R. 193-194.) There was testimony that the driver, according to company policy, was required to investigate the rearward view of the trailer only in the event of backing. Appellant's suggestion that the rearward pivot movement is analogous to backing is misplaced, because the company manual references procedures to be used when backing in the context of backing the truck into a dock space, which would clearly require the use of reverse gear. The use of reverse gear was not done in this case. Mr. Smith testified that the trailer pivoted on its rear wheels no more than a few inches in its backward motion (R. 217-218) and that Mr. Stepanik, an experienced driver, should have been aware of the fact that the trailer's pivot and slight backward motion would occur (R. 219-220). Again, despite the slight rearward motion of one side corner of the trailer, the jury could conclude that in the absence of the use of the reverse gear, the unit was not backing as that term is normally employed. The evidence also demonstrated that the decedent was aware that it was Pitt-Ohio company policy, as demonstrated by the IOCs issued to all mechanics, to remove the keys from Pitt-Ohio trucks -7- before working on them, and that he did not do this prior to servicing Mr. Stepanik's tractor-trailer on the date of the accident. As to the argument that Mr. Stepanik made a statement admitting responsibility, this argument is taken out of context. Mr. Stepanik testified that while visiting his friend, the decedent, at the hospital shortly after the accident, he did testify during plaintiff's case, as if on cross-examination, as follows: Q. Well, didn't you say to Pat Buckles and Jim Melenick (the truck terminal manager) that you were sorry and it was your fault? A. If I did, it was because of the way I felt because I was involved in this. Q. You don't deny saying that? A. I don't deny saying that, but I can't now be sure of the words or anything else or who was there. (R. 102, explanation added.) This colloquy is something short of an admission of responsibility for the accident by the driver. Based on the evidence presented, we conclude that the trial court did not abuse its discretion in denying the motion for new trial. The first assignment of error is overruled. II THE TRIAL COURT ERRED IN INSTRUCTING THE JURY THAT PLAINTIFF'S DECEDENT COULD HAVE ASSUMED THE RISK OF INJURY, ESPECIALLY WHERE THE INSTRUCTION ON ASSUMPTION OF THE RISK WAS PRESENTED TO THE JURY AS AN ALTERNATIVE TO COMPARATIVE NEGLIGENCE. The appellant, both at trial and now, vigorously opposes the use of assumption of the risk with regard to the conduct of the -8- decedent. It is not questioned that the trial court instructed the jury on contributory negligence. The jury instruction at issue is the following: * * * I would like to make some remarks on the doctrine of implied assumption of the risk. Every person has a duty to exercise ordinary care for his or her own safety. Bert Eisenmann was negligent if he failed to use that care for his own safety which a reasonably careful person would use under the same or similar circumstances. The plaintiff impliedly assumed the risk of injury if he had knowledge of a condition that was obviously dangerous to him and voluntarily exposed himself to that risk of injury. A person's conduct may be both negligent and an implied assumption of the risk in certain circumstances and in other circumstances the conduct may be one or the other but not both. It depends upon the facts as you find them by the greater weight of the evidence. (R. 309, italicization added.) * * * Appellant argues in this assignment that the italicized language in the instruction above is in direct conflict with Gallagher v. Cleveland Browns Football Club (1996), 74 Ohio St.3d 427, which reaffirmed the decision of Anderson v. Ceccardi (1983), 6 Ohio St.3d 110 (implied assumption of the risk merged with contributory negligence under the comparative negligence statute, R.C. 2315.19, but two types of assumption of the risk did not merge with contributory negligence, namely, express [e.g., contractual] assumption of the risk and primary [ no duty ] assumption of the risk)4. Appellant urges that primary/ no duty assumption of the 4It is conceded by the trial court and the parties that express/contractual assumption of the risk is not present in this -9- risk was not present in this case; therefore the trial court erred in instructing the jury that the conduct of the decedent, in attempting to repair the lightbulb without telling anyone, could constitute either contributory negligence or implied assumption of the risk under the circumstances, but not both. Based on the evidence offered by the parties at trial, we conclude that the jury could reasonably question that the decedent primarily assumed the risk or was contributorily negligent. Accordingly, the trial court gave a correct instruction to the jury in accord with Gallagher, supra. The second assignment of error is overruled. III THE TRIAL COURT ERRED BY ADMITTING INTO EVIDENCE TWO MEMORANDA ISSUED BY PITT-OHIO TO ITS EMPLOYEES WHICH PURPORTED TO BIND THE DECEDENT, AN INDEPENDENT CONTRACTOR, TO ITS WORK RULE. The memoranda to which this assignment refers are the previously mentioned IOCs concerning the mechanics' removal of keys from the ignition prior to servicing Pitt-Ohio trucks. These memoranda were issued to all mechanics, both those employed by Pitt-Ohio and by agencies under contract to Pitt-Ohio, and referred to removing the keys from power units being serviced. The decedent received these memoranda. According to Mr. Uriah, the term power unit applied, within the company and the trucking industry, to tractors separately and to tractor-trailers when those two vehicles were attached. (R. 264-266.) Mr. Uriah also testified that if the decedent did not comply with such a directive case. -10- he was subject to termination by Pitt-Ohio. (R. 258.) A trial court controls the admission or exclusion of evidence before it, subject to an abuse of discretion standard. Rigby v. Lake Cty. (1991), 58 Ohio St.3d 269, 271; Barbeck v. Twinsburg Twp. Bd. of Trustees (1992), 73 Ohio App.3d 587, 592. Appellants argue that the memoranda should have been ruled inadmissible because they could not apply to the decedent by virtue of his independent contractor status, which precludes Pitt-Ohio from controlling the manner or means of the decedent doing the work. See Bostic v. Connor (1988), 37 Ohio St.3d 144, paragraph one of the syllabus. Given that the underlying contract between Pitt-Ohio and the decedent's employer, C & D Truck Repair, which would have undoubtedly disclosed the conditions of employment and the level of controls and restrictions able to be employed by Pitt-Ohio on the C & D Truck Repair employees while working at the Pitt-Ohio terminal5, was not offered into evidence by plaintiffs-appellants, the court and jury could conclude based upon the testimony of Mr. Uriah that the memoranda applied to all mechanics, including the decedent. Accordingly, the argument regarding the decedent's independent contractor status is without merit and the trial court did not abuse its discretion in admitting the memoranda into evidence. The third assignment of error is overruled. Judgment affirmed. 5Such as, requiring all non-Pitt-Ohio mechanics to abide by the safety rules applicable to Pitt-Ohio employees while working at Pitt-Ohio terminals. -11- It is ordered that appellees recover of appellant 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. Exceptions. ANN DYKE, J., and DIANE KARPINSKI, J., CONCUR. ______________________________ JAMES D. SWEENEY CHIEF JUSTICE 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 .