COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72906 JERRY LEWICKY, ET AL., Plaintiffs-appellants JOURNAL ENTRY vs. AND ACCURATE BUILDING SYSTEMS, INC., OPINION Defendants-appellees DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 3, 1998 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, Case No. CV-259561 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For plaintiffs-appellants: For defendants-appellees: TIMOTHY G. KASPAREK LYNN A. LAZZARO THOMAS R. WOLF MYERS, HENTEMANN & RHEA CO., REMINGER & REMINGER CO., L.P.A. L.P.A. The 113 St. Clair Building 815 Superior Building Cleveland, Ohio 44114 Cleveland, Ohio 44114 STANLEY S. KELLER KELLER & CURTAIN CO., L.P.A. The Hanna Building, Ste. 330 1422 Euclid Avenue Cleveland, Ohio 44115 TIMOTHY D. JOHNSON GREGORY E. O'BRIEN WESTON, HURD, FALLON, PAISLEY & HOWLEY, L.L.P. 2500 Terminal Tower 50 Public Square Cleveland, Ohio 44113 -2- KARPINSKI, J.: This appeal arises from an action claiming personal injuries from an automobile collision. Plaintiffs-appellants Jerry and Patricia Lewicky appeal from a jury verdict in favor of defendants- appellees Dennis Radloff, Accurate Concrete Systems, Inc., and Accurate Building Systems, Inc. (collectively, Accurate ). The collision occurred in a construction zone on westbound Interstate 90. A pick-up truck owned by Accurate and driven by Radloff collided with the rear of a Grand Am driven by Jerry Lewicky. The circumstances of the collision were disputed by the parties at trial. Jerry Lewicky was unable to testify concerning the circumstances of the collision. Plaintiffs' theory of the case, however, was that Radloff was speeding and improperly rear- ended Lewicky from behind. The defense theory was that the collision resulted from Lewicky darting out in front of Radloff and obstructing Radloff's right-of-way. Testimony by Radloff and Sister Marie Fillo, a nun driving a vehicle behind Radloff, permitted the inference that Lewicky suddenly appeared in front of Radloff from behind a row of construction barrels on the right. Neither Radloff nor the nun observed Lewicky behind the construction barrels; however, both testified that Lewicky's car was angled toward the left immediately prior to the collision. Experts retained by the parties and presented during trial rendered conflicting opinions concerning the cause and circumstancesof the collision. After evaluating the evidence and -3- sharply conflicting versions of the case, the jury returned a verdict in favor of Radloff. The Lewickys timely appeal raising four assignments of error. I The Lewickys' first assignment of error follows: THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN ADMITTING TESTIMONY REFERING [SIC] TO AN INADMISSIBLE REPORT AND A DRAWING. This assignment lacks merit. The Lewickys contend the trial court erred by permitting defense counsel to cross-examine their expert, Kent State University physics professor Ulrich, concerning materials prepared by Sergeant Pressler, an Ohio State Highway Patrol accident reconstructionist. Both parties' experts had reviewed Pressler's reports before forming their opinions. The Lewickys complain that the cross-examination of their expert revealed both the existence and contents of Pressler's conclusions to the jury. They argue that Pressler was not called upon to testify by any party and, as a result, the jury was permitted to accept as true his conclusions presented by hearsay. The record shows, however, that the involvement of a Highway Patrol accident reconstructionist was revealed to the jury for the first time during the testimony of Rocky River Patrolman Gerald Gouch. (Tr. 240.) Plaintiffs' counsel thereafter questioned Patrolman Gouch concerning the identity of the reconstructionist. (Tr. 247.) -4- Plaintiffs' principle complaint is that their expert, Dr. Ulrich, was subsequently questioned about Highway Patrol Sergeant Pressler's report. During cross-examination, Ulrich was questioned as to whether he reviewed the report and drawing prepared by Pressler and whether the drawing depicted an angle of impact of the two vehicles. Ulrich responding affirmatively. He also stated, in response to another question, that Pressler's drawing depicted the vehicle driven by Lewicky at a twenty-five degree angle from left to right. Plaintiffs have failed to show reversible error concerning this testimony. It is well established that evidentiary rulings by a trial court will not be reversed on appeal absent a clear and prejudicial abuse of discretion. O'Brien v. Angley (1980), 63 Ohio St.2d 159, 163. To constitute an abuse of discretion, the trial court's ruling must be arbitrary, unreasonable and so palpably and grossly violative of fact and logic as to indicate perversity, passion, or prejudice. Nakoff v. Fairview General Hosp. (1996), 75 Ohio St.3d 254, 256. The Lewickys have failed to satisfy this stringent standard in the case at bar. It is well established that parties may cross-examine experts concerning the foundation of their opinions. Evid.R. 703 specifically recognizes the relevance of inquiries concerning the bases of expert opinion testimony. It provides as follows: Evid R 703. Bases of opinion testimony by experts The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by him or admitted in evidence at the hearing. -5- During cross-examination Ulrich admitted reviewing Pressler's report prior to rendering his own expert opinion. Although he denied basing his opinion on Pressler's report, the questions were directed toward an appropriate line of inquiry and were proper for the limited purpose of determining the basis for his opinion. See Perkins v. Miami Valley Regional Transit Authority (Jan. 12, 1987), Montgomery App. Nos. 9563 and 9696, unreported at pp. 7-9. Moreover, by illuminating the basis for Ulrich's testimony, the inquiry enabled the jury to evaluate the weight to be given Ulrich's testimony by revealing the depth of materials taken into account by him. As in Perkins, Ulrich explained during his testimony why he reached his particular conclusions concerning the angle of the vehicles at impact and why he disagreed with other possible explanations. None of the questions was suggestive. Contrary to plaintiffs' argument, there is no indication that the jury construed the questions about the Pressler report to convey hearsay information or accepted Ulrich's answers to them as substantive proof of any underlying facts. To the extent that any of the questions or answers could have been construed to provide substantive evidence as they argue, plaintiffs should have requested the trial court to instruct the jury on the limited use of the information. Evid.R. 105 specifically governs such situations and provides as follows: When evidence which is admissible as to one party or for one purpose but not admissible as to another party o[r] for another purpose is admitted, the court, upon request of a party, shall restrict the evidence to its -6- proper scope and instruct the jury accordingly. The trial court did not abuse its discretion by permitting defense counsel to inquire into the basis or foundation for Ulrich's opinion testimony. If plaintiffs desired to clarify the proper use of this information, they should have requested proper instructions instead of seeking to exclude the entire inquiry. Finally, even if the jury used Ulrich's testimony about the angle of the vehicles in Pressler's report for a hearsay purpose as the Lewickys' argue, it would be speculative to find any prejudice because the information was essentially cumulative of testimony by Radloff and Sister Fillo. Accordingly, the Lewickys' first assignment of error is overruled. II The Lewickys' second assignment of error follows: THE TRIAL COURT ERRED IN FAILING TO GRANT APPELLANT'S MOTION FOR DIRECTED VERDICT. This assignment lacks merit. The Lewickys complain that the trial court should have directed a verdict in their favor on their claims that Jerry Lewicky was not comparatively negligent and that Radloff was negligent per se. It is well established that a trial court may not direct a verdict unless, after viewing the evidence and inferences therefrom in the light most favorable to the non-moving party, it finds that reasonable minds could but come to one conclusion upon the evidence submitted and that such conclusion is adverse to the non-moving -7- party. Civ.R. 50(A)(4). In other words, a directed verdict is improper when there is sufficient evidence to permit reasonable minds to reach different conclusions on the determinative issues. O'Day v. Webb (1972), 29 Ohio St.2d 215. The Lewickys contend there was no evidence to indicate that Jerry Lewicky was negligent and that he was entitled, therefore, to a directed verdict on this issue. They point to the absence of testimony from Radloff or Sister Fillo that either of them saw Jerry Lewicky come out from behind the construction barrels. However, after reviewing the record, we find sufficient evidence to permit reasonable minds to reach different conclusions on the issue of negligence. The record contains evidence to support a reasonable inference that Jerry Lewicky pulled out from the barrels on the right-hand side of the highway immediately in front of Radloff and that doing so was negligent. Although no one saw Jerry Lewicky pull out from behind barrels, this was a reasonable and permissible inference under the circumstances. The evidence revealed that, prior to the accident, there was no vehicle in Radloff's lane of travel, and there were no other vehicles either next to Radloff or to his left on the highway. Radloff and Fillo testified that Lewicky's vehicle suddenly appeared immediately in front of Radloff's vehicle moving from right to left. Under the circumstances, because Radloff was located in the right-hand lane, it was a permissible inference that Jerry Lewicky drove out from the barrels on the right-hand side of the road. Reasonable minds could reach different conclusions, -8- however, on whether this occurred, and, if it did, whether such act constituted negligence. The Lewickys also complain that the trial court did not direct a verdict in their favor on their claim that Radloff was negligent per se. R.C. 4511.21(A) provides that no person shall operate a motor vehicle *** at a speed greater or less than is reasonable or proper under the circumstances. R.C. 4511.21(B) makes it prima facieunlawful, inter alia, to operate a motor vehicle in excess of the posted speed limit. The Lewickys argue that the jury should have been instructed that Radloff was negligent per se because the speed limit in the construction zone was forty-five miles per hour and Radloff admitted that he was driving at fifty to fifty-five miles per hour prior to the collision. Contrary to the Lewickys' argument, a fact-finder is not compelled as a matter of law to conclude that driving in excess of the speed limit constitutes a violation of R.C. 4511.21 or amounts to negligence per se. Violation of speed restrictions merely constitutes prima facie evidence of negligence rather than negligence per se. Roeder v. Fischer's Bakery, Inc. (1963), 118 Ohio App. 339, 340-341; see also Klyn v. Aruta (1986), 34 Ohio App.3d 152, 154-155. Moreover, the record indicates the existence of a factual dispute for the jury concerning whether the construction zone had a posted forty-five-mile-per-hour speed limit. Two witnesses -9- testified they saw no such speed limit sign, while two witnesses stated that a sign was posted. More importantly, however, even if the forty-five-mile-per- hour speed limit were properly posted, a motorist does not violate R.C. 4511.21(A) unless he is found to be driving at an unreasonable rate of speed under the existing conditions. The question of what is a reasonable and proper speed under the circumstances is for the jury. State v. Neff (1975), 41 Ohio St.2d 17. The evidence in the case at bar indicated favorable driving conditions: it was a bright sunny holiday with light traffic and clear visibility. Under the circumstances, the trial court was not required to direct a verdict that Radloff was negligent per se. Accordingly, the Lewickys' second assignment of error is overruled. III The Lewickys' third and fourth assignments of error relate to jury instructions as follows: THE TRIAL COURT ERRED IN HIS INSTRUCTION WHEN THE COURT REFERRED TO APPELLANT'S COMING OUT FROM BEHIND THE BARRELS WHERE NO EVIDENCE WAS PRESENTED TO ESTABLISH APPELLANT'S POSITION. THE TRIAL COURT ERRED IN FAILING TO INSTRUCT ON DUTY TO LOOK. These assignments lack merit. The Lewickys argue the trial court improperly gave one instruction that was not warranted by the evidence and failed to give their proposed instruction, which was supported by the evidence presented. -10- Specifically, the Lewickys complain about the trial court's reference during its instructions to Jerry Lewicky coming out from behind the barrels. However, a review of the transcript reveals that the challenged instruction referred to the parties' conflicting versions of the events prior to the collision. The challenged instructions follow: Now, it's the contention of the Plaintiff that the Defendant in his operation of the car was negligent. We'll mention some of what he contends is the basis for negligence. And you are also aware it is the contention of the Defendant that in this case he was not negligent, that [sic] it was the collision that did occur was not upon his fault with respect to it, and it's the contention of the Defendant that the Plaintiff had been proceeding in a westerly direction, apparently according to the contention, on the outside or inside we should say of the barrels that were dividing portions of the highway and that he suddenly entered into a portion of the roadway that was being occupied by the Defendant, and he entered to such a point, so that the Defendant actually did collide with his car. As I have already repeated this, what it comes down to, the Plaintiff contends that the Defendant was negligent with respect to this. As a matter of fact, the Defendant denied that he was negligent. His contention is that the jury should find under the facts of this case that the cause of the collision was the entry into his pathway from beyond the barrels in question. So that the Plaintiff--or so that the Defendant couldn't avoid the collision, and the collision did result. (Tr. 688-689.) The instructions did not direct the jurors, as the Lewickys argue, that they were to conclude that Lewicky came out from behind -11- the barrels or that they were bound to adopt Radloff's version of events. The instructions merely clarified the parties' respective contentions. Moreover, the instructions were supported by the evidence. Sister Fillo testified that she drove behind Radloff's pickup truck for some time before the collision. She stated she could see through the windows of his truck and did not see any cars next to, to the left of, or in front of Radloff's truck. Although neither she nor Radloff saw Lewicky pull out from behind the barrels on the right, it was a permissible inference that he did so. If one accepts her testimony, there is no other explanation of where he could have come from. In addition, both Sister Fillo and Radloff testified that, immediately prior to the collision, Lewicky was angled toward the left in front of Radloff's truck. This testimony further bolsters the inference that he came out from behind the barrels on the right. Because Radloff's argument that Jerry Lewicky pulled out from behind the barrels was sufficiently supported by the evidence, the Lewickys have failed to show any error in the instructions concerning this defense. Finally, the Lewickys also complain that the trial court did not specifically give the jury their proffered instruction on the duty of every motorist to look. Our review of the record reveals, however, that the trial court instructed the jury concerning a motorist's continuing duty to look. The trial court's instructions follow: Now, in connection with this, it's the contention really of each party that the other party fail [sic] to -12- maintain a proper lookout immediately prior to the occurrence which is the subject matter of this particular trial. Now, there is actually no specific provision in law. And it goes on to say that a motorist must maintain a reasonable and proper look out. However, you will understand however dictated by common sense that such action should be performed by a person, with respect to whether it will be the Plaintiff or Defendant in a case, or a Plaintiff or Defendant in this case, and whether or not he maintained a look out immediately prior to the occurrence itself. So with respect to this a [sic] maintaining look out, it's going to be up to the jury to determine as to whether or not either party actually was negligent, by failing to maintain a procedure look out, and immediately prior to the occurrence itself. (Tr. 692-693.) It is well established, contrary to plaintiffs' argument, that the trial court is not required to give the instruction in precisely the language proposed by the party. In this case, the trial court's instructions were well balanced because they instructed the jury concerning each parties' respective claims against the other and did not emphasize one to the exclusion of the other. The instruction about whether Lewicky failed to look was justified by evidence that his view may have been obstructed by a large remote control airplane in the back seat of his vehicle. Finally, even if the failure to look instructions were inadequate as plaintiffs' contend, the trial court gave instructions on the general duty of care and principles of negligence which were sufficiently broad to cover the particularized aspects of the duty to look. Under the circumstances, the Lewickys failed to show reversible error concerning the trial court's jury instructions. -13- Accordingly, the Lewickys' third and fourth assignments of error are overruled. Judgment affirmed. -14- It is ordered that appellees recover of appellants 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. JOSEPH J. NAHRA, P.J., and MICHAEL J. CORRIGAN, J., CONCUR. DIANE KARPINSKI 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 .