Vicario v. Prime Medical Services8/23/2001
JUDGMENT: Reversed and Remanded
Plaintiffs Shirley and Manuel Vicario appeal from the judgment of the trial court that directed a verdict in favor of defendant ( PMS ) in plaintiffs' action for negligence. For the reasons set forth below, we reverse and remand for further proceedings.
On March 26, 1999, plaintiffs filed this action against Prime Medical Services, Inc. ( PMSI ), various John Doe defendants, and the Ohio Bureau of Workers Compensation. Plaintiffs asserted that Shirley Vicario, a nurse at Fairview General Hospital, was injured while removing a portable anesthesia cart from a truck owned by PMSI. Plaintiffs claimed that defendants failed to use reasonable care for Shirley Vicario's safety, failed to warn her of latent defects, and failed to maintain safe work premises and that defendants' actions resulted in a loss of consortium for Manuel Vicario. The matter proceeded to trial before a visiting judge on October 11, 2000. Plaintiffs presented the testimony of Shirley Vicario, Manuel Vicario, and Robert Grimmer, Jr. In addition, the depositions of Randy Reed, Lee Hang-Fu, M.D., and James Culver, M.D., were read to the jury. Following the presentation of plaintiffs' case, the trial court directed a verdict for defendants.
On October 25, 2000, plaintiffs filed a motion for a new trial, pursuant to Civ.R. 59(A)(1), citing irregularities by the trial judge. In an affidavit offered in support of this motion, plaintiffs' attorney averred that the judge was rude to him, rushed him in the presentation of his case, that he left the bench for the entire time that two (2) of the three (3) depositions were read into the record and retired to his Chambers, and that the judge told the court reporter, before the depositions were read into the record, that she would be done with the case after lunch. The trial court denied the motion for a new trial and plaintiffs now appeal, assigning two errors for our review. For the sake of convenience, we shall address the second assignment of error first.
Plaintiffs' second assignment of error states:
THE TRIAL COURT ERRED WHEN IT DENIED PLAINTIFFS- APPELLANTS' MOTION FOR A NEW TRIAL.
Here, plaintiffs assert that they were entitled to a new trial because the lower court had already decided to enter a directed verdict prior to the close of plaintiff's case. In support of this assignment of error, plaintiffs cite the facial expressions of the trial judge, the judge's short voir dire, and the judge's admonitions to plaintiffs' counsel. Plaintiffs also assert that the judge informed the court reporter, prior to the close of plaintiffs' case, that she would not be needed in the afternoon.
Pursuant to Civ.R. 59(A), the trial court may grant a new trial to any party on any issue upon any number of specified grounds, including: "Irregularity in the proceedings of the court, jury, magistrate, or prevailing party, or any order of the court or magistrate, or abuse of discretion, by which an aggrieved party was prevented from having a fair trial[.]" In addition, a trial court has the discretion to grant a new trial for "good cause shown." Civ.R. 59(A). The decision to grant or deny a motion for a new trial pursuant to Civ.R. 59 rests in the sound discretion of the trial court, and will not be reversed absent an abuse of that discretion. Sharp v. Norfolk & W. Ry. Co. (1995), 72 Ohio St.3d 307, 312; Dillon v. Bundy (1991), 72 Ohio App.3d 767, 773.
With regard to the alleged irregularities cited in this instance, we note that a trial judge is presumed not to be biased or prejudiced, and the party alleging bias or prejudice must set forth evidence to overcome the presumption of
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