Hall v. Bunn

Full title: HALL ET AL. v. BUNN ET AL., APPELLEES; FORD MOTOR COMPANY, APPELLANT

Court: Supreme Court of Ohio

Date published: Jun 13, 1984

11 Ohio St. 3d 118 (Ohio 1984)

464 N.E.2d 516

Opinion

No. 83-961

Decided June 13, 1984.

Civil procedure — Evidence excluded on basis of prejudice, when — Civ. R. 15(B) — Amendment to pleadings permitted, when.

O.Jur 2d Pleading § 342.

1. Under Civ. R. 15(B), in order to justify the exclusion of evidence on the basis of prejudice, the objecting party must satisfy the court that admission of such evidence will put him to serious disadvantage in presenting his case.

2. In the event an objecting party is not prepared for evidence offered outside the pleadings, the court may still allow an amendment under Civ. R. 15(B) and grant a continuance to enable the opposing party to meet the new evidence.

APPEAL from the Court of Appeals for Hamilton County.

This matter involves an appeal from the reversal of a trial court order granting appellant's motion in limine. The facts underlying the case are in essence as follows.

On October 7, 1978, appellee Vincent P. O'Brien, d.b.a. Paul Construction Company ("O'Brien"), was engaged in excavation work preparatory to the erection of a concrete retaining wall at the home of appellee, Joseph L. Bunn III. The site was being marked and prepared by Andrew McCrory, who was assisted by Aaron Hall.

Dirt was being taken from the scene in a 1966 Ford F600 dump truck owned by O'Brien. The first load was driven without incident by McCrory who was accompanied by Bunn. The second load was taken by Bunn alone.

On the return trip from the dump site, Bunn was traveling in third gear as he crested a hill on the road leading to his property. When he attempted to slow for the decline, the service brake failed entirely. Unsuccessfully, he tried to shift down to second gear. Then, he pulled the hand parking brake back with no effect.

Finally, Bunn decided to turn into his driveway and stop the truck by coasting into a small maple tree in the front yard. He did not notice, however, that Hall was standing behind the tree and looking in the opposite direction through a surveyor's instrument. Hall was struck, sustaining severe disabling injuries. Upon examination of the truck after the accident, the master cylinder reservoir for the storage of brake fluid necessary to the operation of the brakes was found to be empty.

On September 13, 1979, Hall and his wife, Dora, filed a negligence action for personal injuries and loss of consortium, respectively, against Bunn and O'Brien.

On April 8, 1980, Bunn and O'Brien filed a third-party complaint against Ford Motor Company ("Ford"), appellant herein, and Fuller Ford, Inc. ("Fuller"). The complaint alleged that Fuller had repaired the aforesaid truck on December 12, 1977. Parts for the repairs included a master cylinder which had been manufactured and sold to Fuller by Ford. The complaint further alleged that the master brake cylinder failed to operate properly at the time of the accident causing the brakes to fail. Appellees claimed a right of indemnity on theories of liability which included breach of express and implied warranties, strict liability and negligence in selling and installing a defective master cylinder.

On October 1, 1980, the Halls filed a second amended complaint adding Ford and Fuller as defendants on the basis of negligence, breach of warranty and strict liability. Fuller later filed an answer and cross-claim against Ford for indemnification.

The parties engaged in extensive discovery and several experts examined the truck. Their testimony on deposition reveals that there was no question but that the cause of the service brake failure was the leakage of fluid. However, the experts did not agree as to the cause of the leakage.

O'Brien's expert found that there were no external leaks in the system and that the master cylinder had a defect which caused fluid to back through the system and burn up. Appellant's expert maintained that the leak was attributable to external leakage at a fitting which was part of a micro-lock system which had been added onto the truck after its manufacture. Both experts were questioned to a limited extent about the failure of the parking brake although O'Brien's expert indicated that it was not a factor in the accident.

Trial was set for December 7, 1981, a Monday. On December 3, 1981, the preceding Thursday, O'Brien filed a trial brief setting forth two distinct theories of Ford's liability. The first related to the aforestated defect in the replacement master cylinder. The second was that the original truck was defective as to the design of the parking brake and aspects of the service brake system.

On the following day, appellant filed what was styled as a motion in limine to exclude from evidence all matters relating to design defect and the parking brake system. Appellant asserted that all of the pleadings and discovery proceedings had been directed solely to the issue of a defect in the manufacture of the master cylinder. On that basis, appellant asserted that appellees should be precluded from pursuing any alternate theories of liability. The motion was granted and the trial began as scheduled.

At the conclusion of the evidence Fuller was granted a directed verdict with full indemnity against Ford on its cross-claim. The jury returned a verdict in favor of the Halls against Bunn and O'Brien as well as a verdict for Ford on the third-party complaint.

Both Bunn and O'Brien filed notices of appeal assigning as error, inter alia, the granting of the motion in limine. The court of appeals reversed as to this issue and affirmed the judgment of the trial court in all other respects.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Mr. Timothy L. Timmel, for appellees.

Messrs. Rendigs, Fry, Kiely Dennis and Mr. Joseph W. Gelwicks, for appellant.

J.P. CELEBREZZE, J.

In reversing the judgment below, the court of appeals held that a pretrial motion in limine is not a proper vehicle for making a final determination as to the admissibility of evidence. In their briefs the parties also advanced arguments concerning this point.

Upon reviewing the record before us, however, we are compelled to conclude that this particular issue need not be addressed. Rather, this case must be resolved within the context of Civ. R. 15(B).

Civ. R. 15(B) concerns the amendment of pleadings to conform to the evidence, and states:

"When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment. Failure to amend as provided herein does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence."

The rule expresses a liberal policy toward the allowance of amendments. Burton v. Middletown (1982), 4 Ohio App.3d 114, 120. See, also, Deakyne v. Commrs. of Lewes (C.A. 3, 1969), 416 F.2d 290, 298; Robbins v. Jordan (C.A. D.C. 1950), 181 F.2d 793, 794, interpreting Fed.R.Civ.P. 15(b).¹ As one court has noted, "Rule 15 was promulgated to provide the maximum opportunity for each claim to be decided on its merits rather than on procedural niceties." Hardin v. Manitowoc-Forsythe Corp. (C.A. 10, 1982), 691 F.2d 449, 456.

1 Fed.R.Civ.P. 15(b) is virtually identical to its Ohio counterpart.

Broadly speaking, there are two types of amendments provided for under the rule. The first applies when the parties have expressly or impliedly consented to the trial of issues not contained in the pleadings. The precise circumstances under which this occurs are discussed in State, ex rel. Evans, v. Bainbridge Twp. Trustees (1983), 5 Ohio St.3d 41.

A second type of amendment may arise where there is an objection to the evidence offered on grounds that it is not within the issues framed by the pleadings. It is this portion of the rule, not previously addressed by this court, which concerns us here.²

2 Although the record does not indicate that appellees actually filed a motion to amend the third-party complaint, the possibility of such amendment was logically presented in light of appellant's motion in limine.

Civ. R. 15(B) provides that in the event there is an objection to evidence on the ground that it is outside the pleadings, the court may allow the pleadings to be amended and in fact shall do so freely if the following criteria exist: (1) the presentation of the case's merits will be subserved thereby, and (2) the objecting party does not satisfy the court that admission of the evidence would prejudice him in maintaining his case upon the merits.

In the case at bar, appellees' third-party complaint related exclusively to the design and operation of the replacement master brake cylinder. A few days before trial, O'Brien indicated an intent to introduce evidence pertaining to defects in the design of the service brake and parking brake systems of the original Ford F600 truck. Clearly, such evidence did not conform to the issues raised by the pleadings.

Applying the analysis prescribed by Civ. R. 15(B) there is no question but that the disputed evidence would have aided in the presentation of the merits of appellees' case. It was probative of the basic issue involved in this case, namely, the cause of the accident. More importantly to appellees, it concerned the potential liability of Ford for the accident.

The only issue remaining to be addressed under Civ. R. 15(B) then, is whether appellant made a sufficient showing that admission of the evidence would have prejudiced it from maintaining its defense upon the merits. A resolution of this issue depends upon an understanding of the term "prejudice."

Under Civ. R. 15(B), in order to justify the exclusion of evidence on the basis of prejudice, the objecting party must satisfy the court that admission of such evidence will put him to serious disadvantage in presenting his case. Hodgson v. Colonnades, Inc. (C.A. 5, 1973), 472 F.2d 42, 48; Deakyne v. Commrs. of Lewes, supra, at 300; Iodice v. Calabrese (S.D. N Y 1972), 345 F. Supp. 248, 259. See, generally, 6 Wright Miller, Federal Practice Procedure (1971) 480, Section 1495; 3 Moore, Federal Practice (1978) 15-180 and 15-181, Paragraph 15.14; Annotation (1974), 20 A.L.R. Fed. 448, 454, Section 3.

Mere surprise is generally rejected as a basis for exclusion. See, e.g., Southern Coast Corp. v. Sinclair Refining Co. (C.A. 5, 1950), 181 F.2d 960, 962; Robbins v. Jordan, supra, at 795; Conry v. Baltimore O. RR. Co. (W.D. Pa. 1951), 95 F. Supp. 846, 849, reversed on other grounds (C.A. 3, 1952), 195 F.2d 120. In determining whether surprise actually exists, the extent to which the objecting party had knowledge of the disputed evidence is often considered. See, e.g., Deakyne v. Commrs. of Lewes, supra, at 299; Thomas v. American Cystoscope Makers, Inc. (E.D. Pa. 1976), 414 F. Supp. 255, 267; Federal Mut. Ins. Co. v. Deal (S.D. W.Va. 1965), 239 F. Supp. 618, 621.

Moreover, even in the event an objecting party is not prepared for evidence offered outside the pleadings the court may still allow an amendment under Civ. R. 15(B) and grant a continuance to enable the objecting party to meet the new evidence. Hardin v. Manitowoc-Forsythe Corp., supra, at 457; Hodgson v. Colonnades, Inc., supra, at 48, fn. 10; Deakyne v. Commrs. of Lewes, supra, at 299; Robbins v. Jordan, supra, at 795; Southern Coast Corp. v. Sinclair Refining Co., supra, at 962; Watson v. Cannon Shoe Co. (C.A. 5, 1948), 165 F.2d 311, 313. The delay which results does not entail a sufficient basis upon which to deny the amendment. Deakyne v. Commrs. of Lewes, supra, at 300, fn. 19.

In the matter at hand, the essence of appellant's motion to exclude the disputed evidence was its claim of surprise in that the pleadings and discovery had been confined to other issues. On this basis appellant argued that it did not have sufficient time before the scheduled trial to prepare an adequate defense.

We must first note that appellant's allegation as to the scope of the parties' discovery is not entirely borne out by the facts. Two experts and an auto mechanic who examined the truck were asked in deposition as to the role of the parking brake in the accident. Appellant's own expert was questioned by appellant's attorney in some detail on this point. Therefore, the issue of defective design in the original truck was not completely outside the scope of discovery.

Further, even if the proposed evidence had not been suggested in the parties' discovery, there would still be insufficient reason to warrant its exclusion. The record does not indicate the existence of any practical or other difficulties on appellant's part which could not have been overcome by a continuance. Accordingly, the court of appeals was correct in overruling the granting of appellant's motion to exclude the evidence.

We finally note the contention advanced by appellant that appellee Bunn cannot object to the trial court's ruling on the motion in limine as he failed to oppose the motion at the trial level. Civ. R. 46 provides that whenever a matter has by any means been called to the attention of the trial court and the court has ruled thereon, no further exception for purposes of review is required. Accordingly, we do not find merit in this argument.

For all the foregoing reasons, the judgment of the court of appeals is affirmed.

Judgment affirmed.

CELEBREZZE, C.J., W. BROWN, SWEENEY, GREY, HOLMES and C. BROWN, JJ., concur.

GREY, J., of the Fourth Appellate District, sitting for LOCHER, J.