
    Lang v. Colonial Manor Nursing Home et al.
    (No. 41579
    Decided October 29, 1981.)
    Court of Common Pleas of Erie County.
    
      Mr. W, Patrick Murray, for plaintiff.
    
      Mr. William E. Didelius, for defendant.
   McCrystal, J.

This action, remanded from the court of appeals for “further proceedings according to law,” was originally brought by the plaintiff-appellee against the defendant-appellant, Colonial Manor Nursing Home and its employee Brown. Plaintiff sought to bé compensated for injuries and damages sustained in a fall which occurred on the premises of the nursing home. The plaintiff operated a private security agency and was under contract with the nursing home on the day he allegedly was injured as a result of being accidentally or intentionally shoved or pushed by employee Brown. The action was tried as a prerecorded videotape trial pursuant to Civ. R. 40, C.P. Sup. R. 10 and 12 and local court rules, and resulted in a plaintiffs verdict for $50,000.

On appeal, appellant nursing home raised nine assignments of error, eight of which (including the excessiveness of the verdict and the overruling of motions for directed verdict and judgment n.o.v.) the court of appeals found not well taken.

The court of appeals remanded the case for further proceedings upon finding that this court erred in refusing to instruct the jury that it must first find that the employee Brown’s actions were committed within the scope of her employment before returning a verdict against the employer nursing home. This court had charged that Brown’s actions were within the scope of her employment and had withdrawn that issue from the jury.

Plaintiff has filed a motion requesting that the court, upon re-trial, submit only the issue of Brown’s employment to the jury. The plaintiff argues that the relevant evidence as to Brown’s employment is recorded on videotape and can be resubmitted to a jury without the necessity of conducting a trial de novo.

It is conceded by the plaintiff that if the jury finds that the actions of Brown were not within the scope of her employment, then the original verdict should be set aside and a judgment be entered for the defendant. On the other hand, if the jury finds that the actions of Brown, in pushing or shoving Lang, were within the scope of her employment, then the verdict of the original trial will stand.

The defendant argues that an entire new trial should be conducted as that is what, in effect, the court of appeals has ordered.

After the decision of the court of appeals was journalized, plaintiff filed a motion asking that court to order that only the issue of Brown’s employment be submitted in the new trial. The court of appeals in denying plaintiffs motion said, “* * * the subject matter of appellee’s motion is one which is within the province and jurisdiction of the trial Court.” This court is of the opinion that an entire new trial is not required by Ohio’s Appellate Rules or Rules of Civil Procedure.

The Ohio Supreme Court stated in Mast v. Doctor’s Hospital North (1976), 46 Ohio St. 2d 539 [75 O.O.2d 556], that upon remand of a case it is proper procedure to try only those issues, claims or defenses which resulted in prejudicial error in the original trial and to allow issues tried free from error to stand. The Supreme Court used Civ. R. 42(B) as the rationale, i.e., any claim or issue may be separately tried when such separation is “in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy.”

In the case at bar, this court is of the opinion that there is no need to retry the issue of damages as the court of appeals did not find them to be excessive. As to the issue of liability, the court of appeals found the only error to be the court’s instruction to the jury and not in any other portion of the trial itself. This court, therefore, does not find it prejudicial to re-submit to a jury that prerecorded testimony relating solely to the issue of defendant Brown’s employment provided that any evidence relative to Miss Brown’s past criminal record is removed. This procedure eliminates the extra expense in securing, preparing, and questioning witnesses a second time on the same issue. The case will proceed to trial immediately, as the videotaped testimony is readily available. The circumstances of this case illustrate one of the many advantages of a prerecorded trial.

Judgment accordingly.  