Avoiding an excavation in the highway, a Cleveland, Ohio motorist swerved and hit a utility pole. He sued the city to recover for his injuries, contending the city had not provided sufficient warning of the presence of a hazard in the roadway. A jury trial in the Court of Common Pleas, Cuyahoga County, resulted in a verdict for the motorist. The city appealed, claiming seven assignments of error. The Court of Appeals affirmed the trial court on six of the claims of error and upheld the award to the plaintiff.

THE CRASH

For several weeks before February 21, 1991, the Cleveland Bureau of Sewer Maintenance had been working on Rocky River Drive, a four-lane highway. The project resulted in an excavation that affected both the northbound and southbound center lanes. Crews had supported the excavations with pine boards that extended six feet above the ground and had also placed piles of dirt two to three feet in height in each of the blocked lanes. They surrounded the excavations with orange barrels and barricades that had flashing lights.

At 6:30 a.m. on February 21, 1991, Patrick Patton was driving in the northbound center lane of Rocky River Drive. Since he did not see the construction project in his lane until he got to it, he had to swerve to avoid hitting the excavation. He crashed into a telephone pole and suffered back and knee injuries.

TRIAL COURT DECISION

A jury trial resulted from Patton’s suit against the city of Cleveland. Finding the city 80 percent negligent and the plaintiff 20 percent negligent, the jury made a total damage award of $203,000. After deducting for funds from collateral sources and reducing the award by the 20 percent of his contributory negligence, the court computed Patton’s final judgment against the city as $159,175.36.

APPEALS COURT DECISION

The Court of Appeals addressed the city’s seven assignments of error in order.

1. The city contended the trial court erred because instructions did not contain a warning to the jury that where a plaintiff claims “loss of function” and “loss of enjoyment of life,” the award for these losses is not to overlap with other awards for such claims as “pain and suffering.” In Fantozzi v. Sandusky Cement Prod. ((1992), 64 Ohio St.3d 601 [597 N.E.2d 474]), the Ohio Supreme Court mandated such instructions for all cases where a plaintiff claims “loss of enjoyment”–a claim that Patton made in this case.

The courted pointed out that while the plaintiff requested Fantozzi instructions, the defendant only requested a general instruction. Accordingly, the court “instructed the jury to find the total amount of the plaintiff’s damages, and to consider, among other items, loss of enjoyment of life.” The appeals court agreed that the trial court erred in not giving a Fantozzi instruction here; however, since the defendant did not object before the jury went out, the defendant could not raise the error on appeal. Moreover, the court felt it was “unlikely the jury duplicated the damages, so prejudice did not occur by failure to give the Fantozzi instruction.” The court overruled this assignment of error.

2.

The city claimed the trial court abused its discretion in awarding a prejudgment interest based on its determination that the city had not made a good-faith effort to settle before trial.

To demonstrate a good faith effort to settle, the city needed to show it “(1) cooperated in discovery, (2) rationally evaluated [its] risks and potential liability, (3) did not cause unnecessary delay, and (4) made a good faith monetary settlement offer.”

The court records indicated the city cooperated in discovery and provided requested documents and witnesses in a timely manner. The city did originally fail to produce documents subpoenaed in a plaintiff’s notice of deposition. Counsel for the city explained that she did not read the second page of the notice of deposition and, therefore, produced the documents only when the plaintiff again requested them during the deposition. While this was improper, the court saw no ill will or dishonest purpose in the city’s actions. In all other instances, the city expedited its presentation of documents and caused no unnecessary delay in the proceedings.

Regarding evaluation of liability, the city felt the safety devices at the excavation were sufficient for the plaintiff to have seen the construction site. In contradiction, Patton claimed the flasher lights may not have been working. In addition, he said the city had notice that other crashes had happened at this site and, therefore, the city knew the existing condition at the site was hazardous. In light of evidence supporting both sides, the court felt the city might reasonably have believed it was not liable.

Standing on its opinion that it had no liability, the city did not offer the plaintiff a settlement in early January of 1993, when the plaintiff first asked for $8,500 and then for $6,000. In late January, the city offered $6,000. The court considered this a good- faith offer.

Accordingly, the appeals court found that the trial court had abused its discretion in awarding the plaintiff prejudgment interest and sustained this claim of error.

3.

The city next argued, “Since the city cannot be held liable as a matter of law for failing to place warning signs, the trial court erred in admitting such evidence.”

The city claimed that its not putting up construction approach signs at this site was discretionary and, therefore, immune from liability under R.C. 2744.01(C)(1)(j); 2744.02(A)(1). The court pointed out, “A traffic control device is not ‘discretionary’ if it is mandated by the MUTCD [Ohio Manual of Uniform Traffic Control Devices]. Lumbermens Mut. Cas. Co. v. Ohio Dept. of Transp. (1988), 40 Ohio App.3d 129, 551 N.E.2d 215. . . .” The Ohio MUTCD requires construction approach signs when a project obstructs or closes part of the roadway. In this case, the decision on placing signs at the site was not discretionary, since the signs were required.

The court went on to mention that, even had the MUTCD not required placement of construction approach signs for this project, the decision on posting was not immune from liability here. Referring to Howe v. Jackson Twp. Bd. Of Trustees ((1990) 67 Ohio App.3d 159, 586 N.E.2d 217), the court differentiated between the posting of stop signs and the posting of warning signs. The construction warning sign is “temporary, does not affect the flow of traffic and does not require a high degree of official discretion.” Therefore, such a posting would not be a decision immune from liability.

The court felt the city did not have immunity from liability for its decision not to post construction warning signs and, therefore, overruled this assignment of error.

4.

Because of its immunity as described above, the city felt the court erred in giving the jury general instructions on whether construction approach signs should have been in place.

Given its decision that the city did not have immunity here, the court found the general instruction appropriate and overruled this assignment of error.

5.

Moving to the issue of plaintiff’s injuries, the city claimed, “The trial court committed plain error in giving a general jury instruction regarding future damages and permanency because no evidence had been presented on either issue.”

For a subjective injury (one that would not be objectively evident, such as a lost limb), the plaintiff must present evidence that the injury is permanent and will result in future pain and suffering (Day v. Gulley (1963), 175 Ohio St. 83, 23 O.O.2d 382, 191 N.E.2d 732). Patton brought in a medical expert, Dr. Roman Petroff, who had examined him two years after the crash and had also reviewed medical records from examinations immediately following the crash. The expert testified that whiplash injury of the type Patton received in the crash could worsen the plaintiff’s previously existing degenerative disc disease. While the doctor could not be certain this had happened, he thought the patient’s “grinding sensation [and] limited range of motion in his neck” suggested such damage. Petroff also stated the plaintiff’s knee injury was permanent “unless an orthopedic surgeon can remove the calcification.” The plaintiff did not wish to have surgery because of the inherent risks.

The court rejected the city’s claim that such expert testimony was merely “speculative” and concluded that Petroff’s “valid expert testimony” established it was more probable than not that Patton’s crash injuries were permanent. Therefore, the court overruled the city’s objection to jury instructions on future pain and suffering.

6.

The city claimed no proof existed that previous incidents at this construction site were substantially similar to Patton’s crash or that the city had been notified of previous incidents. Therefore, they argued the trail court erred in allowing introduction of evidence from which the jury could infer such incidents were similar and the city was aware of them.

Witnesses testified at trial about previous evidence of crashes at the excavation site on Rocky River Drive. One witness said he saw a pick-up truck stuck in the dirt at this same location during the third week of January, 1991. He added that the truck’s tire tracks were noticeable in the dirt pile. Also, the supervisor of the excavation testified that on February 19, 1991, he observed damage to the pine boards in the southbound lane. He thought the damage might have been the result of a vehicle colliding with the barricade during the weekend.

For evidence of prior incidents to be admissible, the incidents “must occur under substantially similar conditions, not [be] too remote in time, and must be reported to the city.” The court felt the above-mentioned incidents were similar enough to show that motorists were having difficulty with the hazard presented by the excavation site. Both incidents were relatively close to the date of Patton’s crash. Given the truck’s tire tracks, the city had constructive knowledge of the first incident. The supervisor notified the city of his discovery, so the city had actual knowledge of that incident.

The appeals court overruled the city’s assignment of error, finding the trial court within its discretion in allowing evidence of these prior incidents.

7.

Concerning the amount of the award, the city contended, “The judgment of the jury was excessive, because it was the product of passion and prejudice and it was against the manifest weight of the evidence.”

The city argued that the fact Patton returned to work only a week after the crash showed his injuries were not severe. Moreover, after his original hospitalization immediately following the crash, Patton had seen a doctor only once concerning these injuries. Patton countered that he returned to work in pain, because he had to work. And he had no insurance, so he could not afford to make additional visits to the doctor. The plaintiff added that he used to run and participate in sports; he said he could no longer do so.

If a verdict “is supported by some competent, credible evidence,” then it cannot be considered “against the weight of evidence.” The appeal court felt the doctor’s testimony supported by the plaintiff’s represented credible evidence that Patton would suffer future pain and loss of enjoyment as a result of the crash. That the jury chose to believe the plaintiff’s claim of pain and suffering is not manifestly against the weight of evidence or necessarily the result of passion or prejudice. The court overruled the city’s seventh assignment of error.

In conclusion, the appeals court reversed and remanded on the issue of prejudgment interest and affirmed on all other issues.

[For further reference, see Patton v. City of Cleveland (Ohio App. 8 Dist. 1994) in West Publishing Vol. 641 North Eastern Reporter, 2d Series, 1126]