COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA No. 72260 HOLLY IRVINE : : JOURNAL ENTRY Plaintiff-appellee : : AND vs. : : OPINION K-MART CORPORATION, ET AL. : : Defendant-appellants: : : DATE OF ANNOUNCEMENT : OF DECISION : April 30, 1998 : CHARACTER OF PROCEEDINGS : Civil appeal from : Court of Common Pleas : Case No. CV-299134 : JUDGMENT : REVERSED AND REMANDED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellants: MICHAEL F. DADISMAN, ESQ. BRIAN D. SULLIVAN, ESQ. Broadview Professional Bldg. MARK D. AMADDIO, ESQ. 5455 Broadview Road Reminger & Reminger Parma, OH 44143 113 St. Clair Bldg. Cleveland, OH 44114 RUTH FISCHBEIN-COHEN, ESQ. 3552 Severn Road, #613 Cleveland, OH 44118 PATTON, J. A jury awarded plaintiff Holly Irvine $150,000 to compensate her for a broken nose she suffered when a pinata display in a defendant K-Mart Corporation store fell on her. K-Mart appeals, -2- claiming the court erred by (1) permitting the jury to award damages for future compensation and (2) refusing to instruct the jury on comparative negligence. There were no witnesses to plaintiff's accident. Plaintiff testified she went to K-Mart to purchase party supplies and saw a display of pinatas suspended above the aisle. K-Mart fabricated the display by drilling holes in a long metal pipe and suspending that pipe from the ceiling. The pinatas were attached to the metal bar by shower hooks. Plaintiff reached up to check the price of one of the pinatas and said the entire display came down, with the metal bar striking her in the nose. K-Mart disputed whether the display could come down on its own. The assistant store manager estimated the pinata would have been about eight and one-half feet off the ground, so plaintiff would have to jump to reach it. K-Mart submitted photographs taken immediately after the accident that showed the hooks holding up the display had been twisted in a manner that suggested some force had been applied to them. From this evidence, K-Mart concluded plaintiff must have jumped up and grabbed the pinata, causing the entire display to fall. I In its first assignment of error, K-mart complains the court erred by awarding plaintiff compensation for future damages because plaintiff submitted no evidence to support such an award. K-Mart argues plaintiff's own expert testified her nose did not suffer any permanent damage, either functionally or cosmetically. -3- An award of damages should compensate a plaintiff for losses the plaintiff is reasonably certain to incur in the future. Galayda v. Lake Hosp. Sys, Inc. (1994), 71 Ohio St.3d 421, 425. Those damages must reasonably follow from the injury complained of. Roberts v. Mut. Mfg. & Supply Co. (1984), 16 Ohio App.3d 324, 325, citing Pennsylvania Co. v. Files (1901), 65 Ohio St. 403, 407. For subjective injuries, there must be expert evidence of pain and suffering. Patton v. Cleveland (1994), 95 Ohio App.3d 21, 30. We find the trial court erred by permitting the jury to consider future damages because plaintiff's expert did not testify to any degree of reasonably certainty that she would suffer damages in the future. The expert who performed the reconstructive surgery gave varying testimony on the permanence of the injury. At first, he analogized plaintiff's broken nose to dropping an egg and putting the shell back together it may look like the exact same egg, but its never going to be the same egg. This is the situation we're dealing with. He went on to state: It is my intention at the time of reconstruc- tive surgery to restore the nose as closely as possible to the preoperative condition. * * * Hypothetically can you ever get the nose identical to 100 percent, no. In other comments, however, the expert gave a very positive prognosis on plaintiff's injury. In a report he prepared about five weeks after plaintiff's reconstructive surgery, the expert stated, [t]he results [of the surgery] should be absolutely -4- perfect with no cosmetic or functional deformity whatsoever. When asked to reaffirm that comment, the expert said, I stick by that, yes. His trial testimony likewise confirmed that prognosis. He testified, [c]an it [the nose] ever be identical, no. But on the other hand, would it be close, I would hope it would be very close. *** I should hope that I could get it to the stage where she wouldn't be able to tell the difference between then and the operation, I would hope so. Importantly, plaintiff made no complaints about the post- surgery condition of her nose to her doctor at any point prior to his testimony. The expert performed the surgery on March 30, 1995, just days after the accident. He agreed that the short interval between the accident and the date of surgery was the optimal time in which to perform the surgery and he was able to achieve the best possible result. The expert saw plaintiff on May 15, 1995 and wrote a progress note in which he noted no cosmetic dysfunction with the nose. The expert conceded that complications could arise subsequent to the May 15, 1995 visit, but as of the date of his testimony (January 28, 1997 only nine days before trial), plaintiff had not come back to see him, even though he specifically told her to do so if she had any additional problems. He further stated that because he had not seen plaintiff since her May 1995 examination, he had no reason to change his opinion that she did not have any cosmetic dysfunction. This conflicting testimony by the expert absolutely fails to establish, by a reasonable degree of medical certainty, that -5- plaintiff suffered future damages to her nose as a result of K- Mart's negligence. Besides not giving any opinion couched in terms of reasonable certainty, the expert's conflicting testimony compels the conclusion that future damages were far from certain. Because plaintiff failed to establish her future damages, the court erred by permitting the jury to award those damages. Plaintiff makes several arguments in support of the jury verdict. First, she argues the expert did not recall writing a report in which he concluded plaintiff would suffer no permanent disability whatsoever. The record flatly contradicts this argument. When asked by defense counsel whether he believed the statement in his report that [t]he results should be absolutely perfect with no cosmetic or functional deformity whatsoever, the expert replied, Yes, I do. The expert subsequently reaffirmed that statement by telling K-Mart's counsel I stick by that, yes. Plaintiff also argues we should afford the jury's verdict a presumption of correctness and may ultimately affirm that verdict on grounds that K-Mart's negligence had been established. K-Mart's breach of a duty of care is but one element of a negligence case plaintiff still needed to show an injury proximately resulting from the breach of the duty. Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St.3d 75, 77. In other words, establishing K- Mart's negligence did not prove that plaintiff suffered any injury. As previously stated, plainitff had to present expert testimony to establish the amount of future damages, and K-Mart's negligence had no bearing on the existence or amount of future damages. -6- As to any presumption concerning the existence of damages, it is true that a jury's assessment of damages should not be over- turned absent a finding of passion or prejudice. Moskvitz v. Mt. Sinai Med. Ctr. (1994), 69 Ohio St.3d 638, 655. However, we are concerned with the evidence supporting those damages, not the amount of those damages. Plaintiff's expert did not testify to any degree of reasonable certainty that plaintiff would suffer future damages to her nose as a result of the accident. Absent evidence of those future damages, the court could not award any amount based solely on future damages. It is true that plaintiff herself testified that she continued to suffer problems with her nose, but her testimony could not competently establish what the expert failed to establish. The law requires expert testimony when the nature of the injury is subjective. Roberts, supra. As of May 1995, the objective manifestation of plaintiff's injuries had subsided to the point where the expert could only assume she did not have any complica- tions or continuing problems. When asked to suppose that such future complications had arisen, the expert testified, I really can't even postulate anything of that nature. I've never seen her again. As far as I know now, hopefully she's satisfied with the result. To this end, the expert's testimony effectively contra- dicted plaintiff's complaint at trial that reconstructive surgery on her nose failed to return it to its pre-accident condition. Finally, plaintiff argues K-Mart failed to object to the court's instruction on future damages. Ordinarily, the party -7- complaining about a jury instruction waives the right to challenge the alleged error in the absence of an objection. See Civ.R. 51(A). However, the court is nonetheless required to give a correct charge to the jury. When a charge is incorrect as a matter of law, the plain error doctrine will apply regardless whether the party suggesting error has made a proper objection. See Eagle American Ins. Co. v. Frencho (1996), 111 Ohio App.3d 213, 219. Here, the court told the jurors it could award damages for plaintiff's future pain and suffering and future expense. Given the absence of any expert testimony to establish that plaintiff would suffer those future damages to a reasonable certainty in the future, the court erred by giving its instruction. Moreover, K-mart adequately preserved the right to complain about the award of future damages by raising the issue in its motion for judgment nothwithstanding the verdict. In that motion, K-Mart specifically asked the court to grant it judgment due to the expert's failure to testify that plaintiff's future damages were reasonably certain to occur. Although K-Mart's appellate brief does not specifically address this issue in the context of its motion for judgment notwithstanding the verdict, we have the discretion to consider this argument and choose to exercise our discretion accordingly. See Chemical Bank of New York v. Newman (1990), 52 Ohio St.3d 204, 207. It is true the court did not ask the jury to arrive at special verdicts on the two damage award theories, but this failure does not require us to affirm the entire damage award. Because the -8- court erred in the first place by instructing the jury on future damages, the entire award was tainted. The size of the damage award necessarily tells us that the award could not encompass only compensatory damages since plaintiff's medical bill totaled just more than $9,000. This would mean the jury awarded plaintiff more than fifteen times her medical special damages, without regard to her primary argument that her desire to have her nose restored, both cosmetically and functionally, to its pre-accident condition, would never be fulfilled and that fact would haunt her for the rest of her life. Having found the court erred by instructing the jury on future damages, we sustain the first assignment of error. II The second assignment of error complains the court erred by failing to instruct the jury on the issue of comparative negli- gence. In its instructions, the court essentially gave the jury an all-or-nothing choice on liability either plaintiff or K-Mart was fully responsible for plaintiff's injury, to the exclusion of the other party. K-Mart argues it presented sufficient evidence that suggested plaintiff either jumped or stood on something in order to reach the pinata, thus warranting an instruction on comparative negligence. Plaintiff claims K-Mart failed to make a proper objection to the court's failure to charge the jury on comparative negligence. When a party fails to object to the giving of or failure to give a jury instruction before the jury retires to consider a verdict, the party may not assign as error the giving of or failure -9- to give such instruction. Schade v. Carnegie Body Co. (1982), 70 Ohio St.2d 207, paragraph one of the syllabus. K-Mart did not specifically object to the court's failure to charge at the close of the instructions. It did ask the court to clarify K-Mart's position that plaintiff stood on something in order to jump and reach the pinata, but it did not expressly ask the court to instruct the jury on comparative negligence. The failure to ask for the comparative negligence instruction at that point in trial, however, does not waive K-Mart's assignment of error. In its proposed jury instructions, K-Mart suggested the court give an instruction on comparative negligence. This proposal was sufficient to preserve the matter for review. See Presley v. Norwood (1973), 36 Ohio St.2d 29, paragraph one of the syllabus; R.H. Macy & Co. v. Otis Elevator Co. (1990), 51 Ohio St.3d 108. We find the court erred by failing to instruct the jury on comparative negligence. K-Mart's evidence suggested plaintiff could only have reached the pinata by jumping and grabbing the pinata. Although not entirely clear from the record, the evidence suggested the pinata hung about 8.5 feet from the ground, presum- ably beyond the reach of the five-foot, six-inch plaintiff. Plaintiff flatly denied jumping to reach the pinata, but photo- graphs submitted by K-Mart showed the hooks holding up the bar were bent in a manner that could only have occurred had plaintiff yanked on the pinata with such force as to bring the entire display down. This evidence could have led the jury to conclude that plaintiff herself was negligent. Although the court instructed the jury to -10- consider whether plaintiff did, in fact, commit negligence by jumping to reach the pinata, the facts presented at trial were such that the court should also have told the jury to consider whether plaintiff's act of jumping (if it occurred), contributed to her injury to the extent that it constituted comparative negligence under the circumstances. Accordingly, we sustain the second assignment of error and remand for a new trial. Judgment reversed and remanded. -11- This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellants recover of said appellee their costs herein. 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. O'DONNELL, P.J. JAMES D. SWEENEY,J., CONCUR. JUDGE JOHN T. PATTON 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 .