COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 78013 NORA RIVERA : : JOURNAL ENTRY PLAINTIFF-APPELLANT : : AND v. : : OPINION ROBERT J. OVERMAN : : DEFENDANT-APPELLEE : : DATE OF ANNOUNCEMENT OF DECISION: JULY 5, 2001 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, Case No. CV-391305. JUDGMENT: REVERSED AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellant: GARY H. LEVINE, Esq. Law Offices of Gary H. Levine 1660 West 2nd St., Suite 660 Cleveland, Ohio 44113 PAUL W. FLOWERS, Esq. Paul W. Flowers Co., L.P.A. 1200 Illuminating Building 55 Public Square Cleveland, Ohio 44113-1937 For Defendant-appellee: TERRENCE J. KENNEALLY, Esq. Terrence J. Kenneally & Associates Westgate Tower Building 20525 Center Ridge Road, #505 Rocky River, Ohio 44116 -2- SWEENEY, JAMES D., J.: Plaintiff-appellant Nora Rivera appeals from the jury verdict in favor of the defendant-appellee Robert Overman. The appellant suffered injuries to her head, neck and shoulder after a motor vehicle accident. The jury indicated on interrogatories that the appellee, by a preponderance of the evidence, was the direct and proximate cause of the appellant's injuries. However, the jury also found that the appellant was negligent and that her negligence was the direct and proximate cause of her injuries. The jury found that the negligence attributable to the appellant was 60% and that the negligence attributable to the appellee was 40%. The record indicates that on September 17, 1997, the appellant was injured in a motor vehicle accident. The appellee stipulated liability. The complaint was filed on September 13, 1999 and the answer was filed on November 19, 1999. The answer does not raise as an affirmative defense the appellant's failure to wear her seatbelt. A case-management conference was held on November 9, 1999. At this time a discovery deadline of February 2, 2000 was given and a trial date of April 11, 2000 was set. Between November 1999 and the end of March 2000, a series of pretrials was held. On April 7, 2000, the appellee filed proposed jury instructions, a trial brief, a motion for leave to amend the answer, and the amended answer. The proposed amended answer added as an affirmative defense the appellant's contributory negligence for failure to wear a seatbelt. On April 10, 1999, the trial court granted the motion for leave to amend the answer, but stated that -3- this will not serve to continue trial. In a journal entry dated April 10, 2000, the trial court, by agreement of the parties, did continue the trial until April 13, 2000. On April 13, 2000, the appellant filed her brief in opposition to the motion for leave to amend the answer. Also on this date, the appellant filed a motion in limine seeking to prohibit the appellee from arguing the issue of the seatbelt to the jury. Prior to the start of trial, the court heard oral arguments from the parties on both the appellee's motion for leave to amend the answer and on the appellant's motion in limine. The court re-granted the motion for leave to amend the answer and denied the motion in limine. The court also denied the appellant's motion to strike portions of the trial testimony of her expert, Dr. Patil. At trial, the appellee presented no expert testimony of his own that the failure to wear a seatbelt had contributed to the appellant's injuries. The only evidence on this issue was presented by the appellant's physician, Dr. Ashok Patil. Dr. Patil testified that seatbelts are intended to protect passengers in a motor vehicle against injury, but that they are not always successful. When specifically asked whether or not the appellant's failure to wear her seatbelt contributed to her injuries, Dr. Patil stated that he could not answer the question. Dr. Patil declined to speculate as to what role the failure to wear a seatbelt played in this particular accident. -4- The appellant sets forth four assignments of error. The second assignment of error will be considered first because it is dispositive of this appeal. The appellant's second assignment of error: THE TRIAL COURT ERRED, AS A MATTER OF LAW, BY APPLYING R.C. S4513.263, AS AMENDED BY H.B. 350, EVEN THOUGH THE LEGISLATION HAD BEEN DECLARED TO BE UNCONSTITUTIONAL BY THE OHIO SUPREME COURT. The appellant asserts that the version of R.C. 4513.263 in effect at the time of the accident prohibited the finder of fact from hearing evidence regarding whether or not the injured party was wearing properly adjusted occupant restraining devices (hereinafter seatbelts). The appellant asserts that R.C. 4513.263 was amended to permit such evidence by the Tort Reform Act, H.B. 350, which was effective January 27, 1997. The Ohio Supreme Court found the Tort Reform Act to be unconstitutional in State ex rel. Ohio Academy of Trial Lawyers v. Sheward (1999), 86 Ohio St.3d 451 and, thus the appellant argues, the prior version of R.C. 4513.263 is applicable to this case. The version of R.C. 4513.263 cited by the appellant became effective June 30, 1993. The appellee points out that on June 30, 1997, in H.B. 215, the state legislators amended R.C. 4513.263. This amendment also permitted the issue of seatbelts to be presented to the finder of fact. The appellee asserts that because this amendment, which was subsequent to the Tort Reform Act, has never been found to be unconstitutional, it must be applied to the case now at hand. -5- As the appellant correctly asserts, Sheward, supra, found the Tort Reform Act to be unconstitutional. The Supreme Court has recently addressed one aspect of the issue of the impact of H.B. 215 on the Tort Reform Act. In Stevens v. Ackman (2001), 91 Ohio St.3d 182, the Ohio Supreme Court reviewed a case analogous to the one sub judice. In the portion of the Stevens case pertinent to this analysis, the Court reviewed the question of statutory immunity under R.C. 2744.02(C). As a part of the Tort Reform Act, this section of the immunity statute was amended to permit an appellate court to immediately review an order that denies a political subdivision the benefit of immunity from liability. The same wording used in the Tort Reform Act to amend this portion of the immunity statute was restated without any changes in H.B. 215. After illuminating the rules governing statutory construction, the Supreme Court held, at syllabus two of Stevens, that where H.B. 215 does not change the language of a statute enacted in the Tort Reform Act, H.B. 215 does not enact or reenact the statute. In essence, the Court found that because Sheward invalidated the Tort Reform Act, and since the H.B. 215 is not applicable, the court in Stevens concluded that the applicable statute was the pre-Tort Reform version. Considering the matter at hand, this court notes the pre-Tort Reform version of R.C. 4513.263 prohibited the fact finder from hearing evidence on the issue of whether or not an injured party had been wearing a seatbelt. The Tort Reform Act amended R.C. 4513.263(F) to permit the finder of fact to hear evidence on the -6- seatbelt issue. Subsequently, H.B. 215 was enacted and used the identical language in R.C. 4513.26(F) as had been used in the Tort Reform Act. This course of legislative events is identical to the course of events the Supreme Court reviewed in Stevens, supra. As stated supra, the Stevens Court resolved the question of the application of H.B. 215 to this legislative sequence by finding that the pre-Tort Reform Act version of the statute is applicable. Thus, applying Stevens and the pre-Tort Reform version of R.C. 4513.26(F) to the present matter, it is clear that the trial court should not have permitted the jury to hear evidence that the appellant failed to wear her seatbelt. The appellant's second assignment of error is well taken. -7- The appellant's remaining assignments of error are moot pursuant to App.R. 12. Judgment reversed and remanded for new trial. -8- This cause is reversed and remanded for a new trial. It is, therefore, considered that said appellant recover of said appellee her 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. Exceptions. PATRICIA A. BLACKMON, J., and TERRENCE O'DONNELL, J., CONCUR. ______________________________ JAMES D. SWEENEY PRESIDING 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. 22. 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 clerk per App.R. 22 (E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). .