Cincinnati Riverfront Coliseum, Inc. v. McNulty Co.

504 N.E.2d 415, 28 Ohio St. 3d 333, 28 Ohio B. 400, 1986 Ohio LEXIS 856
CourtOhio Supreme Court
DecidedDecember 26, 1986
DocketNo. 85-2006
StatusPublished
Cited by73 cases

This text of 504 N.E.2d 415 (Cincinnati Riverfront Coliseum, Inc. v. McNulty Co.) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cincinnati Riverfront Coliseum, Inc. v. McNulty Co., 504 N.E.2d 415, 28 Ohio St. 3d 333, 28 Ohio B. 400, 1986 Ohio LEXIS 856 (Ohio 1986).

Opinion

Locher, J.

The general issues presented in the instant action are (1) whether a new trial was properly granted to Clark and (2) whether the city’s motions for a directed verdict were properly denied. For the reasons that follow, we answer in the affirmative on both issues and uphold the decision of the court of appeals.

I

The Riverfront Appeal

Riverfront contends that the court of appeals erred when it reversed the decision of the trial court and granted Clark a new trial. The new trial [336]*336was granted on the basis of the trial court’s refusal to consider written interrogatories submitted by Clark.

On the day that the trial court was to instruct the jurors on the law governing the resolution of the disputed issues, Clark requested in writing that the verdict forms be supplemented with a large number of interrogatories to be answered in the course of the deliberations. The trial court flatly denied Clark’s request. Riverfront maintains that the submission of the interrogatories was a delay tactic and that a trial court has a broad discretion to refuse to consider submitted interrogatories.

Civ. R. 49(B) governs the use of interrogatories in connection with a general verdict. The rule provides in pertinent part: “The court shall submit written interrogatories to the jury, together with appropriate forms for a general verdict, upon request of any party prior to the commencement of argument. * * * The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury, but the interrogatories shall be submitted to the jury in the form that the court approves. ” (Emphasis added.)

Following a timely request by a party, a mandatory duty arises to submit written interrogatories to the jury, provided they are in the form the court approves. “The wording of Civ. R. 49(B), that the ‘court shall submit written interrogatories * * * upon request of any party,’ is mandatory in character and leaves no discretion in the trial court on the question of submission, upon request, of proper interrogatories to the jury. The rule, however, reposes discretion in the court to pass upon the content of requested interrogatories as they ‘shall be submitted to the jury in the form the court approves.’ ” (Emphasis added.) Riley v. Cincinnati (1976), 46 Ohio St. 2d 287, 298 [75 O.O.2d 331], citing Ragone v. Vitali & Beltrami, Jr., Inc. (1975), 42 Ohio St. 2d 161 [71 O.O.2d 164].

In the cause sub judice, the trial court did not refuse to submit the interrogatories to the jury following an examination of the form and content, but clearly denied Clark’s timely request without any consideration. The request was flatly denied because it was “impossible for the Court to take up additional interrogatories at this time.”

This court respects the time restraints under which trial courts must work; however, we can not approve the ignoring of the Civil Rules. We therefore agree with the decision of the court of appeals, and hold that the trial court erred when it failed to follow the mandate of Civ. R. 49(B).

Riverfront additionally contends that the trial court’s error was harmless under Civ. R. 61.3 We disagree. The essential purpose to be [337]*337served by interrogatories is to test the correctness of a general verdict by eliciting from the jury its assessment of the determinative issues presented by a given controversy in the context of evidence presented at trial. See Davison v. Flowers (1930), 123 Ohio St. 89. As the court of appeals correctly stated:

“* * * In a case such as this where the volume of evidence is substantial, the questions posed by the evidence are complex, and the parties potentially responsible for the losses are numerous, the failure to act in accordance with the dictates of the Rule must be held to result in prejudice by effectively foreclosing any meaningful inquiry into the integrity of the fact-finding process and thus vitiating the right to determine whether the jury has lost its way in returning the general verdicts.”4 Accordingly, we hold that the trial court’s error was prejudicial to Clark.

II

The Clark Cross-Appeal

Clark avers that the court of appeals should have reversed the trial court’s decision on additional grounds. Clark presents these additional grounds through five separate propositions of law.

Initially, Clark argues that the trial court erred by denying its motions for directed verdict and for a judgment notwithstanding the verdict. Clark maintains that it is not liable for construction defects as a matter of law because the structure, as built, materially deviates from its submitted design. We disagree. Generally, one who contracted in a specialized professional capacity to provide the design for a particular structure may be held to respond in damages for the foreseeable consequences of a failure to exercise reasonable care in the preparation of the design. See Acret, Architects & Engineers (2 Ed. 1984). See, also, Bell, Professional Negligence of Architects and Engineers 177-179, in Roady & Andersen, Professional Negligence (1960); Quail Hollow East Condominium Assn. v. Donald J. Scholz Co. (1980), 47 N.C. App. 518, 268 S.E. 2d 12.

There are limited circumstances under which an engineer or architect may be relieved from the effects of what might otherwise be held to constitute actionable negligence. See Covil v. Robert & Co. Assoc. (1965), 112 Ga. App. 163, 144 S.E. 2d 450. However, there may well exist in the same construction a cause of action in favor of the plaintiff for damages emanating from both faulty design and faulty construction. An architect or structural engineer may avoid liability for negligent design if it is proven that deviations in construction are material and that the deviations have been the proximate cause of the damages claimed by the plaintiff. See State, ex rel. Stephan, v. Wolfenbarger & McCulley, P.A. (1984), 236 Kan. 183, 690 P.2d 380. Accord Corbetta Constr. Co. v. Lake Cty. Pub. Bldg. (1978), 64 Ill. App. 3d 313, 381 N.E. 2d 769. A contractor’s devia[338]*338tions from the plans and specifications submitted by a structural engineer or architect should be regarded as material only if they serve independently to break the causal connection between the design and the plaintiff’s damages by completely removing the effects of any negligence on the part of the structural engineer or architect in preparing the design. See Cascone v. Herb Kay Co. (1983), 6 Ohio St. 3d 155; Thrash v. U-Drive-It Co. (1953), 158 Ohio St. 465 [49 O.O. 402].

In the instant action, there is evidence of a variety of modifications and alterations in the design of the walkway. However, the record also reveals evidence to negate the effect of the deviations. Upon review of the record, we find that there was evidence presented which specifically attributed the deterioration to defects in the design, and that Clark, by its own admission, did not consider the effect of exposure to weather or the ability to disperse surface water when it designed the walkway.

Civ. R.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Ladd v. Planchak
2024 Ohio 24 (Ohio Court of Appeals, 2024)
Thomas v. Chimera
2023 Ohio 2132 (Ohio Court of Appeals, 2023)
Cunning v. Windsor House, Inc.
2023 Ohio 352 (Ohio Court of Appeals, 2023)
Russo v. Gissinger
2023 Ohio 200 (Ohio Court of Appeals, 2023)
Tera, L.L.C. v. Rice Drilling D., L.L.C.
2023 Ohio 273 (Ohio Court of Appeals, 2023)
Maiorana v. Walt Disney Co.
2021 Ohio 4530 (Ohio Court of Appeals, 2021)
Woodside Mgt. Co. v. Bruex
2020 Ohio 4039 (Ohio Court of Appeals, 2020)
Windward Ents., Inc. v. Valley City Dev. Group, L.L.C.
2019 Ohio 3419 (Ohio Court of Appeals, 2019)
Jenkins v. Grawe
2019 Ohio 2013 (Ohio Court of Appeals, 2019)
Wittenbrook v. Elecs. Recycling Servs., Inc.
2018 Ohio 208 (Ohio Court of Appeals, 2018)
Grieser v. Janis
2017 Ohio 8896 (Ohio Court of Appeals, 2017)
Whitmer v. Zochowski
2016 Ohio 4764 (Ohio Court of Appeals, 2016)
Di v. Cleveland Clinic Found.
2016 Ohio 686 (Ohio Court of Appeals, 2016)
Clark v. Grant Med. Ctr.
2015 Ohio 4958 (Ohio Court of Appeals, 2015)
Krzywicki v. Galletti
2015 Ohio 312 (Ohio Court of Appeals, 2015)
Brock v. Food, Folks & Fun, Inc.
2014 Ohio 2668 (Ohio Court of Appeals, 2014)
State Farm Mut. Auto. Ins. Co. v. Williams
2013 Ohio 3884 (Ohio Court of Appeals, 2013)
Hostetler v. Cent. Farm & Garden, Inc.
2012 Ohio 507 (Ohio Court of Appeals, 2012)
Hammond v. Cleveland
2012 Ohio 494 (Ohio Court of Appeals, 2012)
Turner v. Elk & Elk, L.P.A.
2011 Ohio 5499 (Ohio Court of Appeals, 2011)

Cite This Page — Counsel Stack

Bluebook (online)
504 N.E.2d 415, 28 Ohio St. 3d 333, 28 Ohio B. 400, 1986 Ohio LEXIS 856, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cincinnati-riverfront-coliseum-inc-v-mcnulty-co-ohio-1986.