COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69523 DOROTHY M. TEXLER, : : Plaintiff-Appellee : JOURNAL ENTRY : and vs. : OPINION : D.O. SUMMERS CLEANERS & SHIRT : LAUNDRY COMPANY, : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION : AUGUST 6, 1998 CHARACTER OF PROCEEDING: : Civil appeal from : Common Pleas Court : Case No. 260856 JUDGMENT : AFFIRMED IN PART, REVERSED : IN PART AND REMANDED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: Lester S. Potash 2000 Illuminating Building 55 Public Square Cleveland, Ohio 44113-1901 Richard E. Stone 24100 Chagrin Boulevard Suite 300 Beachwood, Ohio 44122 -2- For defendant-appellant: James L. Glowacki James J. Imbrigiotta Christopher R. Claflin GLOWACKI & ASSOCIATES 510 Leader Building 526 Superior Avenue Cleveland, Ohio 44114 -3- NAHRA, J.: This cause is before this court on remand from the Supreme Court of Ohio. In Texler v. D.O. Summers Cleaners & Shirt Laundry Co. (Jan. 6, 1997), Cuyahoga App. No. 69523, unreported, we reversed the judgment of the trial court denying a motion for judgment notwithstanding the verdict made by the defendant, D.O. Summers Cleaners & Shirt Laundry Co. (hereinafter D.O. Summers ), entered judgment for D.O. Summers, and dismissed several assignments of error presented by the parties as moot. In Texler v. D.O. Summers Cleaners (1998), 81 Ohio St.3d 677, the Supreme Court reversed our decision that entered judgment for D.O. Summers and remanded this case for consideration of the assignments of error previously found moot. Dorothy Texler, appellee and cross-appellant, brought a negligence action against D.O. Summers, appellant and cross- appellee, for injuries sustained after a fall on the sidewalk outside D.O. Summers' business. At trial, the jury found D.O. Summers to be at fault in causing Texler's injuries, assigned no fault to Texler, and awarded Texler damages in the amount of $75,000. After trial, D.O. Summers made a motion for judgment notwithstanding the verdict and a motion for a new trial while Texler made a motion for prejudgment interest and to tax as costs the expenses of a videotape deposition used at trial. The trial court denied both Texler's and D.O. Summers' post-trial motions. I. -4- In its appeal, D.O. Summers made five assignments of error. D.O. Summers' third and fourth assignments of error have been overruled by the Supreme Court. See, Texler, 81 Ohio St.3d 677. A. D.O. Summers' first assignment of error reads: I. THE TRIAL COURT ERRED IN ALLOWING THE JURY TO CONSIDER THE EXISTENCE OF A MUNICIPAL ORDINANCE WHEN DETERMINING THE DUTY OF CARE OWED BY THE DEFENDANT/APPELLANT. D.O. Summers argues that the court erred by allowing the jury to consider Solon Codified Ordinance 660.10, which states in pertinent part: (a) No person shall place or knowingly drop upon any sidewalk or playground, any tacks, bottles, wires, glass, nails, or other articles which may damage the property of another or injure any person traveling along or upon such a sidewalk or playground. *** (c) No person shall place, deposit or maintain any merchandise, goods, materials, or equipment upon any sidewalk so as to obstruct pedestrian traffic except for such reasonable time as may actually be necessary for the delivery or pick up of such articles. In no case shall the obstruction remain on the sidewalk for more than one hour. In Crowe v. Hoffman (1983), 13 Ohio App. 3d 254, 255, the court stated that a property owner or occupier may be held liable for injuries resulting from the violation of a duty imposed by statute as an exception to the general rule that property owners are not liable for injuries sustained on adjacent sidewalks. See, also, Eichorn v. Lustig's Inc. (1954), 161 Ohio St. 11. -5- Accordingly, the trial court did not err by instructing the jury as to D.O. Summers' duty by means of the ordinance. D.O. Summers' first assignment of error is overruled. B. D.O. Summers' second assignment of error reads: II. THE TRIAL COURT ABUSED ITS DISCRETION IN ADMITTING EVIDENCE OF SUBSEQUENT REMEDIAL MEASURES. Texler's injuries were found to be caused by D.O. Summers' practice of propping open its side door with a bucket filled with concrete blocks, which door and bucket obstructed the sidewalk. At trial, D.O. Summers' store manager was asked on cross-examination whether or not the bucket with concrete blocks was still used to prop open the side door and whether or not a chain was placed on the door to prop it open. Evid.R. 407 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. Texler argues that the line of questioning which addressed the continued use of the bucket was used, in accord with Evid.R. 407, to show the feasibility of other methods by which the door could have been propped open. In order for such evidence to be admissible, the feasibility of precautionary measures must be at issue in the case. -6- In this case, the feasibility of precautionary measures was not at issue. Accordingly, the admission of evidence of D.O. Summers' subsequent method of propping the door open was error. To determine whether an error in the admission of evidence warrants reversal of a verdict, the error must either affect a substantial right of a party or be found to have caused a substantial injustice. Petti v. Perna (1993), 86 Ohio App.3d 508, 514. To determine whether a substantial right of a party has been affected, a reviewing court must ascertain whether the jury would have reached the same decision had the error not occurred. Id. In this case, evidence was properly admitted as to the nature of the sidewalk, the method by which D.O. Summers propped open the door, and the circumstances of Texler's fall by which her injuries were sustained. Moreover, the means by which a door may be propped open is not beyond the ken of the average juror and evidence as to other methods used to prop the door open did not prejudice D.O. Summers. In light of the evidence admitted, the jury would have reached the same decision, regardless of whether it was aware that D.O. Summers no longer propped open its door with a bucket filled with concrete blocks. D.O. Summers' second assignment of error is overruled. C. D.O. Summers' fifth assignment of error states: V. THE TRIAL COURT ABUSED ITS DISCRETION IN NOT GRANTING THE DEFENDANT/APPELLANT'S MOTION FOR NEW TRIAL. -7- D.O. Summers argues that it was entitled to a new trial because Texler 1) did not the establish her claim of negligence, 2) the manifest weight of the evidence established that Texler was more at fault than D.O. Summers, and 3) the court erred by admitting evidence of its subsequent remedial measures. These arguments reiterate the arguments made in D.O. Summers' second, third, and fourth assignments of error. As these assignments of error have been overruled, D.O. Summers' fifth assignment of error is overruled. -8- II. Texler brings four assignments or error in her cross-appeal. Texler's first and second assignments of error are interrelated and will be addressed concurrently. A. Texler's first and second assignments of error read: I. THE TRIAL COURT ERRED IN OVERRULING APPELLEE'S MOTION TO TAX AS COSTS THE EXPENSE OF RECORDING THE VIDEOTAPED DEPOSITION TESTIMONY OF APPELLEE'S EXPERT. II. THE TRIAL COURT ERRED IN OVERRULING APPELLEE'S MOTION TO TAX AS A COURT EXPENSE THE PLAYBACK OF THE VIDEOTAPE OF APPELLEE'S EXPERT. Former C.P.Sup.R. 12 provided in part: (D) Costs. (1) Videotape Depositions *** (b) The reasonable expense of recording testimony on videotape shall be costs in the action. (c) The expense of playing the videotape recording at trial shall be borne by the court. *** At trial, Texler presented testimony of an expert witness by means of videotape. Pursuant to former C.P.Sup.R. 12, the trial court erred by not bearing the cost of the playing of the videotape pursuant to rule and by not taxing as costs the reasonable expense of videotaping the deposition. See, Semenas v. Republic Steel Corp. (1985), 29 Ohio App.3d 237. Texler's first and second assignments of error are sustained. We remand this case to the trial court to ascertain the reasonable -9- expenses of videotaping the deposition, assign such expenses as costs in this case, and to bear the expense of playing the videotape in court. B. III. THE TRIAL COURT ERRED IN DENYING APPELLEE'S POST- JUDGMENT MOTION FOR PRE-JUDGMENT INTEREST. Texler made a motion to the court for prejudgment interest on her award for damages, arguing that D.O. Summers failed to make an offer to settle the case until the morning of trial. The trial court denied the motion. In Kalain v. Smith (1986), 25 Ohio St.3d 157, the syllabus reads: A party has not failed to make a good faith effort to settle under R.C. 1343.03(C) if he has (1) fully cooperated in discovery proceedings, (2) rationally evaluated his risks and potential liability, (3) not attempted to unnecessarily delay any of the proceedings, and (4) made a good faith monetary settlement offer or responded in good faith to an offer from the other party. If a party has a good faith, objectively reasonable belief that he has no liability, he need not make a monetary settlement offer. In this case, D.O. Summers did not make a monetary settlement offer. At issue is whether D.O. Summers had a good faith, objectively reasonable belief that it did not have liability. A trial court's decision as to whether or not a party acted in good faith rests within its sound discretion. Huffman v. Hair Surgeon, Inc. (1985), 19 Ohio St.3d 83, 87. At the hearing on the motion for prejudgment interest, Texler did not present evidence that D.O. Summers' failed to cooperate in discovery or that it unnecessarily delayed the proceedings. D.O. -10- Summers presented evidence that, based upon Texler's deposition testimony, it believed that under comparative negligence principles it did not have liability. The trial court did not abuse its discretion by denying Texler's motion. Texler's third assignment of error is overruled. C. Texler's fourth assignment of error reads: IV. THE TRIAL COURT ERRED IN FAILING TO GRANT APPELLEE A DIRECTED VERDICT ON NEGLIGENCE PER SE BASED UPON VIOLATION OF S660.10, SOLON CODIFIED ORDINANCE. Texler argues that the court erred by not instructing the jury on the law of negligence per se based upon Solon Codified Ordinance 660.10. The jury found D.O. Summers negligent. Whether or not the court erred by not charging the jury on the law of negligence per se is moot. Texler's fourth assignment of error is overruled. Judgment affirmed in part, reversed in part and remanded for proceedings consistent with this opinion. -11- This cause is affirmed in part, reversed in part and remanded for proceedings consistent with this opinion. Costs to be divided equally between plaintiff-appellee and defendant-appellant. It is ordered that a special mandate be sent to said 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. JOSEPH J. NAHRA JUDGE BLACKMON, A.J., and O'DONNELL, J., CONCUR. 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 .