Manigault v. Ford Motor Co.

Lundberg Stratton, J.,

dissenting.

{¶ 14} In a brief opinion devoid of any statutory or case citations, the majority has reversed the appellate court’s judgment on a simple, discretionary evidentiary issue. I believe that this case should have been dismissed as improvidently allowed because the issue on which the majority bases its decision does not reach the threshold test for discretionary appeals. Section 2(B)(2)(e), Article TV, Ohio Constitution (Supreme Court “may” review “cases of public or great general interest”). Furthermore, the issue on which the majority bases its opinion was never raised on direct appeal to the court of appeals, and thus should not have been considered on appeal to this court, let alone been used as the sole basis for the majority’s opinion. Finally, even an examination of the merits of Manigault’s argument regarding the videotape with the missing audio track does not justify a new trial.

{¶ 15} The majority’s reliance on the missing audio portion of the videotape is improper from a procedural perspective. Based on this “new evidence,” Manigault asked the court of appeals to reconsider its judgment affirming the jury’s verdict for Ford or, in the alternative to remand the case to the trial court for Civ.R. 60(B) proceedings. The appellate court declined to entertain Manigault’s motion to reconsider because the motion relied on evidence dehors the record, which the appellate court is prohibited from considering. See Lamar v. Marbury *435(1982), 69 Ohio St.2d 274, 277, 23 O.O.3d 269, 431 N.E.2d 1028. The appellate court also declined to remand the case because it “might falsely suggest that this court has some opinion concerning the merits of a Civ.R. 60(B) motion when, indeed, we have none.”

{¶ 16} Despite the fact that Manigault never raised the missing-audio allegation in her direct appeal, she raised that issue in her discretionary appeal to this court. The missing audio track is the sole basis for the majority’s judgment granting a new trial to Manigault. Issues not raised below cannot be considered in an appeal to this court. Thus, the majority’s reliance on the missing audio as the basis for its opinion is improper. Manigault should have filed a Civ.R. 60(B) motion with the trial court.

{¶ 17} Manigault’s case also fails to meet the threshold for certification to this court. “This court will grant a motion to certify only if there is a substantial constitutional question or if the case is of public or great general interest. * * * Novel questions of law or procedure appeal not only to the legal profession but also to this court’s collective interest in jurisprudence.” (Emphasis added.) Noble v. Colwell (1989), 44 Ohio St.3d 92, 94, 540 N.E.2d 1381.

{¶ 18} This case does not involve a “novel” question of law or procedure or present an issue that is pertinent to the court’s “collective interest in jurisprudence.” The majority is merely second-guessing the appellate court’s decision to deny a motion for new trial. By rule and by necessity, that is not the role of this court.

{¶ 19} The majority, in its only legal citation in the entire opinion, attempts to transform the lower court’s denial of a new trial into a constitutional issue by citing the Ohio Constitution’s requirement that “every person for an injury done him in his land, goods, person, or reputation, shall have a remedy by due course of law.” Section 16, Article I of the Ohio Constitution. However, the careful reader will note that this section provides only “a remedy by due course of law.” (Emphasis added.) The law prevents appellate courts from considering evidence dehors the record. Lamar, 69 Ohio St.2d at 277, 23 O.O.3d 269, 431 N.E.2d 1028.

{¶ 20} Evaluation of the evidence is a task for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230, 39 O.O.2d 366, 227 N.E.2d 212, paragraph one of the syllabus. The determination of whether to grant a new trial is within the sound discretion of the trial court. Mannion v. Sandel (2001), 91 Ohio St.3d 318, 321, 744 N.E.2d 759. If Manigault was deprived of a remedy, it was by her own mistake in failing to file a Civ.R. 60(B) motion with the trial court.

{¶ 21} Furthermore, the basis for the majority’s decision to grant a new trial is unpersuasive. The majority’s only specific finding regarding the missing audio portion of the videotape is that “[i]t is possible, as Manigault alleges, that the expert’s testimony was directly contradicted by his own words on the audio *436portion of the videotape.” (Emphasis added.) Specifically, the majority finds that the missing audio portion of the videotape referring to a pressure of 175 pounds could contradict Ford’s expert’s testimony that stopping the car required only 20 pounds of brake pressure. The majority’s analysis of this issue is superficial and incomplete.

{¶ 22} Ford’s expert, using the videotape in question as a demonstrative exhibit, testified that he had conducted several braking tests using a 1987 Crown Victoria, the same model involved in the accident in this case. Instrumentation was attached to the car to measure speed, brake pressure, and torque. The instrumentation provided a printed readout of the data for each test. The first three tests measured, among other things, the amount of brake pressure required to hold the car in place while the throttle was sequentially increased in each test. In the fourth test the car was moving when the brake was applied. Ford claims that it was the fourth test that required 175 pounds of pressure on the brakes to stop the car. Ford claims that the fourth test is relevant to this case because the acceleration incident occurred just after Mr. Manigault started his car and shifted it into drive. Therefore, Ford argues, because Mr. Manigault’s foot would have been on the brake upon shifting into drive, the fourth test (that measured the brake pressure required to stop a moving car) was irrelevant. Ford argues that physics and common sense indicate that it is more difficult to stop an accelerating, moving car, as opposed to a car that is accelerating from a standstill. Ford’s argument is certainly plausible and consequently a new trial is not warranted.

{¶ 23} Finally, the most critical aspect of this dissent is that Ford provided Manigault written data from the acceleration tests. Two of the readouts do appear to reveal that substantially more brake pressure was required to stop the car than the 20 pounds that Ford’s expert claimed Manigault needed to exert to prevent the accident herein. One indicated that approximately 130 pounds of brake pressure was required to stop the car. The other indicated that an initial spike of 250 pounds of pressure was applied to stop the car, shortly thereafter dropping to 175 pounds. Presumably, these data pertain to the fourth test, although I cannot make this match with certainty. Regardless, Manigault had in her possession at trial two documents that indicated that considerably more than 20 pounds of brake pressure were needed to stop the car under certain circumstances. Therefore, notwithstanding the lack of audio on the videotape, Manigault possessed the information that is the basis of the fraud allegation, i.e., that one of the acceleration tests required 175 pounds of pressure. Thus, no fraud occurred. Manigault’s attorney had this information available before trial. Manigault’s failure to evaluate and use this information to cross-examine Ford’s expert is not Ford’s responsibility.

Murray & Murray Co., L.P.A., Thomas J. Murray and Mary O’Neill; Robert Zelvy & Associates and Robert Zelvy; Weisman, Goldberg & Weisman and Fred Weisman, for appellants. Thompson Hiñe L.L.P., Elizabeth B. Wright and Jennifer D. Mingus, for appellee.

{¶ 24} Therefore, I believe that this case utterly fails to provide an issue for the court to address because the issue ruled upon was not raised in the court below, the case does not meet this court’s threshold test for review, and because Ford did not commit fraud in that the test in which the 175 pounds of brake pressure was required to stop the car was very likely immaterial to the accident herein. Remanding for retrial unfairly gives Manigault a second bite at the apple in already protracted litigation when none is deserved. Manigault’s attorneys failed to use the data to cross-examine Ford’s expert and failed to file the Civ.R. 60(B) motion in the proper forum. We are not obligated to save parties from their attorneys’ mistakes. Accordingly, I respectfully dissent.