COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73239 ROGER BRIERE : : : Plaintiff-appellant : : -vs- : JOURNAL ENTRY : AND JON WHEELER : OPINION : Defendant-appellee : : : DATE OF ANNOUNCEMENT : AUGUST 20, 1998 OF DECISION : CHARACTER OF PROCEEDING : Civil appeal from Common Pleas Court, Case No. CV-285632 JUDGMENT : Affirmed DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: Mark J. Obral, Esq. 1000 Standard Bldg. 1370 Ontario Street Cleveland, Ohio 44113 For defendant-appellee: Thomas M. Coughlin, Esq. 330 Hanna Building 1422 Euclid Avenue Cleveland, Ohio 44115-1901 Chris Zender 2024 Richland Lakewood, Ohio 44107 MICHAEL J. CORRIGAN, J.: Roger Briere, plaintiff-appellant, appeals from the judgment of the Cuyahoga County Court o -2- f Common Pleas, General Division, Case No. CV-285632, in which the trial court allegedly allowed an inconsistent jury verdict to stand and denied plaintiff-appellant's motion for a new trial. Plaintiff-appellant assigns one error for this court's review. Plaintiff-appellant's appeal is not well taken. On March 2, 1993, plaintiff-appellant was injured when he fell down a flight of stairs at the home of his neighbor, Chris Zender. The property, located at 3043 W. 105th Street in Cleveland, Ohio, was owned by Jon Wheeler, defendant-appellee, and rented to Chris Zender. The stairs were approximately three steps high and were located at the back door of the home in question. The lower stair was missing one-half of the step which had apparently broken or rotted away. Mr. Zender was aware of the problem and allegedly notified defendant-appellee of the condition. However, no written notification of the defective condition was ever produced. On the day of the incident, Mr. Zender invited plaintiff- appellant to his home in order to look at Zender's automobile which was in need of repair. Mr. Zender apparently led plaintiff- appellant and two other people out of the back door and into the backyard to inspect the car. Plaintiff-appellant was at the head of the group when he fell on the defective step injuring himself. At the time of the incident, it was approximately 8:00 p.m. and dark outside. The backdoor and stairs were not illuminated in any manner. Plaintiff-appellant was never warned about the condition by Mr. Zender prior to the injury. Mr. Zender testified that he -3- had failed to warn plaintiff-appellant about the condition because he had forgotten about it. (T. 113). On March 1, 1995, plaintiff-appellant filed suit against Chris Zender as well as defendant-appellee alleging that their negligence regarding the defective stairway caused his injuries. The case eventually proceeded to a jury trial. On May 7, 1997, the jury returned a general verdict in favor of plaintiff-appellant. The jury answered interrogatories whereby plaintiff-appellant was found to be fifteen percent (15%) negligent and Chris Zender was found to be eighty-five percent (85%) negligent. Defendant-appellee was found to be negligent, however the jury determined that his negligence was not the proximate cause of plaintiff-appellant's injuries. Accordingly, defendant-appellee was found not liable for plaintiff-appellant's injuries. At trial, plaintiff-appellant failed to object to the jury interrogatories or the general verdict returned by the jury. Subsequently,plaintiff-appellant filed a motion for judgment notwithstanding the verdict and a motion for a new trial. On September 9, 1997, the trial court denied both motions. On September 24, 1997, plaintiff-appellant filed a timely notice of appeal from the judgment of the trial court. Plaintiff-appellant's sole assignment of error on appeal states: THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT WHEN IT FAILED TO 1) DIRECT THE JURY TO DELIBERATE FURTHER OR 2) GRANT APPELLANT'S MOTION FOR A NEW TRIAL. -4- Plaintiff-appellant maintains, through his sole assignment of error, that the trial court improperly accepted a general verdict where the jury interrogatories were inconsistent with that verdict and the verdict itself was not supported by the weight of the evidence. Plaintiff-appellant maintains further that his failure to object to the inconsistent interrogatories does not constitute waiver of that objection because the interrogatories amount to plain error. Civ.R. 49(B) provides: When the general verdict and the answers [to interrogatories] are consistent, the appropriate judgment upon the verdict and answers shall be entered pursuant to Rule 58. When one or more of the answers is inconsistent with the general verdict, judgment may be entered pursuant to Rule 58 in accordance with the answers, notwithstanding the general verdict, or the court may return the jury for further consideration of its answers and verdict or may order a new trial. It is well established that, in the absence of plain error, remedies under Civ.R. 49 cannot be exercised once the jury has been excused. A party's objections to the interrogatories must, therefore, be raised while the jury is still empaneled and the trial court possesses a full range of options before it. Shoemaker v. Crawford (1991), 78 Ohio App.3d 53, 61, citing to Schade v. Carnegie Body Co. (1982), 70 Ohio St.2d 207. A party's failure to object to alleged inconsistencies in the jury's interrogatories constitutes waiver of the claimed error. Id., see, also, Czubaj v. E.B.P., Inc. (Oct. 12, 1995), Cuyahoga App. No. 65517, unreported at 10. -5- In civil cases, the plain error doctrine is utilized only under exceptional circumstances to prevent a manifest miscarriage of justice. Cleveland Elec. Illum. Co. v. Astorhurst Land Co. (1985), 18 Ohio St.3d 268, 275. Plain error is only recognized where, but for the error, the result of the trial would clearly have been otherwise. A plain error is obvious and prejudicial and, if permitted, would have a material adverse affect on the character and public confidence in judicial proceedings. Schade at 209. The decision to grant or deny a motion for a new trial is committed to the sound discretion of the trial court. State v. Schiebel (1990), 55 Ohio St.3d 71, 564 N.E.2d 54; Rohde v. Farmer (1970), 23 Ohio St.2d 82, 262 N.E.2d 685. An appellate court will not reverse a trial court's denial of a motion for a new trial absent an abuse of discretion. Shark v. Norfolk W. Ry. Co. (1995), 72 Ohio St.3d 307, 649 N.E.2d 1219. An abuse of discretion implies that the trial court's attitude was unreasonable, arbitrary or unconscionable, it is more than an error in law or judgment. State ex rel. Richard v. Seinder (1996), 76 Ohio St.3d 149, 666 N.E.2d 1134. Where an appellant argues that a new trial is warranted on the grounds that the verdict was against the manifest weight of the evidence, the trial court's denial of appellant's motion is reviewed to determine whether that decision was unreasonable, arbitrary or unconscionable. An appellate court will not reverse the judgment of the trial court as being against the manifest weight of the evidence as long -6- as that judgment is supported by some competent, credible evidence going to all the essential elements of the case. State ex rel. Pizza v. Strope (1990), 54 Ohio St.3d 41, 560 N.E.2d 765; C.E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279, 376 N.E.2d 578. Further, an appellate court is guided by the presumption that the findings of the trial court are correct, since the trier of fact is best able to view the witnesses, observe their demeanor and use those observations in weighing the credibility of the proffered testimony. In re Jane Doe 1 (1991), 57 Ohio St.3d 77, 566 N.E.2d 146. In the case herein, it is undisputed that plaintiff-appellant failed to object to the perceived irregularities in the jury interrogatories prior to the time the jury was discharged. Accordingly, plaintiff-appellant has waived any objection to the claimed error on appeal. Boewe v. Ford Motor Co. (1992), 94 Ohio App.3d 270, 279; Cooper v. Metal Sales Mfg. Corp. (1995), 104 Ohio App.3d 34, 42. In addition, contrary to plaintiff-appellant's position, a review of the general verdict and corresponding jury interrogatories fails to demonstrate any alleged inconsistency and does not, in any way, constitute plain error. The evidence at trial showed that Mr. Zender knew of the defective condition of the back stairway a number of months prior to plaintiff-appellant's injuries. Despite this knowledge, Mr. Zender led plaintiff- appellant, an invited guest, out of the back door of his home and directly onto the defective stairway without any warning as to the known defective condition. Under the present factual scenario, the -7- jury's determination that defendant-appellee's failure to repair the steps in question did not constitute the proximate cause of plaintiff-appellant's injury was not inconsistent with the general verdict returned in favor of plaintiff-appellant. This is particularly true in light of the fact that no conclusive evidence was presented at trial to demonstrate that defendant-appellee ever received notice of the defective condition of the stairs as required under the terms of the lease. Similarly, a review of the entire record demonstrates that competent, credible evidence was presented as to all the essential elements of the case. An actionable claim for negligence against Mr. Zender was sufficiently set forth. Clearly, Mr. Zender had a duty to warn plaintiff-appellant of known dangers which plaintiff- appellant could not reasonably discover and protect himself against. Mr. Zender breached that duty by failing to warn plaintiff-appellant of the defective condition of the stairs and that breach led to plaintiff-appellant's injuries. Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St.3d 75, 77. It is not unreasonable under the present circumstances for the jury to find that Mr. Zender's conduct was the cause of plaintiff-appellant's injuries and the trial court did not abuse its discretion by denying plaintiff-appellant's motion for a new trial on those grounds. For the foregoing reasons, plaintiff-appellant's sole assignment of error is not well taken. -8- Judgment of the trial court is affirmed. -9- It is ordered that appellee recover of appellant 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 Cuyahoga County 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. ANN DYKE, PRESIDING JUDGE, AND LEO M. SPELLACY, J., CONCUR JUDGE MICHAEL J. CORRIGAN 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 .