Fantozzi v. Sandusky Cement Prod., Co. - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

	ROMINGER LEGAL
		Ohio Court Cases and Opinions - Ohio Legal Research
					Need Legal Help?
					Need Legal Help?
LEGAL RESEARCH CENTER
LEGAL RESEARCH CENTER			LEGAL HEADLINES - CASE LAW - LEGAL FORMS	NOT FINDING WHAT YOU NEED? -RESEARCH

This court case was taken from the web sites of the Ohio Courts. Search our site for more cases - CLICK HERE

LEGAL RESEARCH

COURT REPORTERS

PRIVATE INVESTIGATORS

PROCESS SERVERS

DOCUMENT RETRIEVERS

EXPERT WITNESSES

Find a Private Investigator

Find an Expert Witness

Find a Process Server

Case Law - save on Lexis / WestLaw.

Legal News - Legal Headlines

OPINIONS OF THE SUPREME COURT OF OHIO
The full texts of the opinions of the Supreme Court of
Ohio are being transmitted electronically beginning May 27,
1992, pursuant to a pilot project implemented by Chief Justice
Thomas J. Moyer.
Please call any errors to the attention of the Reporter's
Office of the Supreme Court of Ohio. Attention: Walter S.
Kobalka, Reporter, or Justine Michael, Administrative
Assistant. Tel.: (614) 466-4961; in Ohio 1-800-826-9010.
Your comments on this pilot project are also welcome.
NOTE: Corrections may be made by the Supreme Court to the
full texts of the opinions after they have been released
electronically to the public. The reader is therefore advised
to check the bound volumes of Ohio St.3d published by West
Publishing Company for the final versions of these opinions.
The advance sheets to Ohio St.3d will also contain the volume
and page numbers where the opinions will be found in the bound
volumes of the Ohio Official Reports.
Fantozzi et al., Appellees and Cross-Appellants, v.
Sandusky Cement Products Company, Appellant and Cross-Appellee,
et al.
[Cite as Fantozzi v. Sandusky Cement Prod., Co.
(1992), Ohio St.3d .]
Civil procedure -- Trial court commits reversible error
ordering a prerecorded videotape trial over the objections
of both parties to the action, when -- Torts -- Negligence
-- Damages -- When individual suffers personal injuries,
question of damages for "loss of ability to perform the
plaintiff's usual functions" may be submitted to the jury
in an instruction, and set forth in a special
interrogatory and separate finding of damages, when.
1. It is reversible error for a trial court to order a
prerecorded videotape trial over the objections of both
parties to an action unless the court reflects in a
journal entry that it has, pursuant to C.P.Sup.R. 12(B),
consulted with the attorneys for the parties and
considered the costs involved, the nature of the action
and the nature and amount of testimony, that these factors
taken together indicate a compelling reason to conduct the
trial by videotape and that no cognizable prejudice will
be suffered by the parties. (Civ.R. 40, applied;
C.P.Sup.R. 12[B], construed and applied.)
2. Where an individual suffers personal injuries, the
question of damages for "loss of ability to perform the
plaintiff's usual functions" may, when evidence thereon
has been adduced, be submitted to the jury in an
instruction, and set forth in a special interrogatory and
separate finding of damages, provided, however, that the
court instructs the jury that if it awards such damages,
it shall not award additional damages for that same loss
when considering any other element of damages, such as
physical and mental pain and suffering.
(No. 91-1169 -- Submitted April 29, 1992 -- Decided
September 9, 1992.)
Appeal and Cross-Appeal from the Court of Appeals for Erie
County, No. E-89-36.
On January 25, 1986, defendant-appellant and

cross-appellee, Sandusky Cement Products Company ("Sandusky
Cement"), through its employee-agent, Daniel Mulvin, delivered
and offloaded ready mix concrete from a truck onto the premises
of the New Departure Hyatt Bearings Division of General Motors
located in Sandusky, Ohio. Plaintiff-appellee and
cross-appellant, Peter A. Fantozzi, was involved in spreading
and finishing the concrete that was offloaded from the truck.
The concrete was offloaded by means of metal chutes that
were made in sections which connected to form a continuous
chute. According to Fantozzi, at least one section of the
metal chutes being used by Sandusky Cement was warped out of
shape so that it could not properly connect to the other
sections. Fantozzi alleges that as a direct and proximate
result of the reckless, willful and wanton negligence of
Sandusky Cement and the other defendants (Henry Hoover, Daniel
Mulvin and Chuck Mulvin), a warped chute fell and struck him,
causing physical injury, pain and suffering, and preventing him
from pursuing his employment.
Fantozzi sought medical treatment for his claimed injuries
on several occasions. Specifically, on the day of the injury
he went to the plant infirmary, but then returned to the job
site until work was completed. On January 27, 1986, Fantozzi
visited a Dr. Gillette, who prescribed pain medication and
physical therapy for his problem. Subsequently, while
vacationing in Florida, Fantozzi complained of pain in his
neck, shoulders and arm. Consequently, Fantozzi sought
treatment at Memorial Hospital in Ormond Beach, Florida. Upon
his return to Ohio, Fantozzi was admitted first to Providence
Hospital by Dr. Gillette and then to Good Samaritan Hospital by
a Dr. Rist, who prescribed traction and therapy. Fantozzi was
also treated by James R. Berry, M.D., who prescribed a traction
device and a TENS unit to be used at home. Dr. Berry referred
Fantozzi to a neurosurgeon, Fred A. Brindle, M.D., who had
Fantozzi consult with a Dr. Brausch. Dr. Brindle conducted a
cervical myelogram on Fantozzi and Dr. Brausch conducted an
electromyogram. Fantozzi was also examined by a neurologist,
Dr. Herbert S. Bell, who could not alleviate his symptoms.
Finally, Dr. Brindle referred Fantozzi to Firelands Hospital
for pain management, which taught him how to cope with his pain
on a day-to-day basis.
Fantozzi's treating physician, Jonathan Ford Diller, M.D.,
determined that Fantozzi was totally, permanently impaired such
that he would not be able to return to any form of employment
involving significant physical exertion. Moreover, Dr. Diller
concluded that Fantozzi's injury was caused by the collapse of
the cement chute.
On July 6, 1988, Fantozzi, along with his wife,
plaintiff-appellee and cross-appellant Nancy Fantozzi, filed a
second amended complaint with a jury demand alleging reckless,
gross, willful, wanton and negligent conduct by Sandusky Cement
and its agents, which caused the injury to Mr. Fantozzi.
Furthermore, Mrs. Fantozzi alleged that defendants' acts
deprived her of the services, aid, love and companionship of
her husband in the past, present and future. On December 28,
1988, the trial court assigned the case for a videotape trial
pursuant to Civ.R. 40, C.P.Sup.R. 12(B) and Loc.R. 15 of the
Court of Common Pleas of Erie County, and allowed counsel for

both sides to raise "any serious objections" within ten days.
On January 6, 1989, both sides filed joint objections to
the videotape trial order. The objections stated, inter alia,
that Mr. Fantozzi could not finance the cost of the videotape
depositions; that due to the nature of the factual issues, the
videotape format would not provide the jury with a complete
opportunity to judge the credibility of the witnesses as to
body language, attitude and appearance; and that attorneys for
both sides had heavy trial schedules which made it impossible
to adequately prepare for the videotape trial schedule assigned
by the court. All parties requested that the trial proceed as
originally scheduled, and not as a videotape trial.
The trial court never ruled on these objections, and on
January 26, 1989, the parties agreed to a modification of the
original videotape trial schedule. The videotape trial
commenced on April 24, 1989 and lasted through May 1, 1989. On
May 1, 1989, the jury returned a general verdict for Mr.
Fantozzi in the amount of $744,120. Mrs. Fantozzi received
$40,000 for loss of consortium. The jury determined in a
special interrogatory that Mr. Fantozzi's damages were:
Past medical expenses: $14,000
Past lost wages: $120,120
Past pain and suffering: $25,000
Past loss of life's enjoyment: $25,000
Future medical expenses: $60,000
Future lost wages: $400,000
Future pain and suffering: $60,000
Future loss of life's enjoyment: $40,000
Moreover, the jury found Mr. Fantozzi to be ten percent
negligent, while Sandusky Cement was ninety percent negligent.
Thus, the trial court reduced the award proportionately,
leaving a total of $669,708 for Mr. Fantozzi and $36,000 for
Mrs. Fantozzi.
The court of appeals affirmed the trial court's judgment
in part, reversed it in part, and remanded, holding, inter
alia, that the trial court did not abuse its discretion in
ordering the trial to be conducted by videotape over the
objections of the parties. However, the court of appeals held
that the trial court did err in instructing the jury that it
could take into consideration damages for past and future loss
of enjoyment of life. The court reasoned that given the
injuries set forth in the complaint, damages for the loss of
enjoyment of life would fall within the confines of damages for
pain and suffering.
The cause is now before this court pursuant to the
allowance of a motion and cross-motion to certify the record.

Crandall, Pheils & Wisniewski and David R. Pheils, Jr.,
for appellees and cross-appellants.
Manahan, Pietrykowski, Bamman & DeLaney, Gerald R.
Kowalski and William F. Pietrykowski, for appellant and
cross-appellee.

Holmes, J. The two issues before this court are whether
the trial court committed reversible error when it ordered the
parties, when they had objected, to participate in a videotape
trial, and whether the trial court committed prejudicial error

when it provided the jury with a separate interrogatory
concerning damages for past and future "loss of life's
enjoyment." For the reasons that follow, we answer the first
query in the affirmative and the latter in the negative.
I
Videotape Trials
In Sandusky Cement's sole proposition of law, it asserts
that a court order to conduct a videotape trial over the
objections of both adversarial parties constitutes "an abuse of
discretion" by a trial court. In order to thoroughly
appreciate the breadth of this issue, a brief background on
videotape trials is indicated. The videotape trial format
discussed here is not the presentation into evidence at a
conventional trial of videotapes of certain evidence such as
the testimony of expert witnesses. The videotape trial that we
discuss in this case is a trial in which all of the testimony,
including that of any expert witnesses, is prerecorded on
videotape and later shown to the jury on a video screen. Trial
by videotape is a modern process presented as an alternative to
traditional trial methods. The basic premise behind such
trials is that they save judicial resources by providing a
quicker means for bringing a case to trial.
The first videotape trial, McCall v. Clemens, No. 39301,
took place in the Common Pleas Court of Erie County, Ohio, on
November 18, 1971, under the direction of Judge James L.
McCrystal. See Symposium, First Videotape Trial: Experiment in
Ohio (1972), 21 Defense L.J. 266; McCrystal, Videotape Trials:
Relief for our Congested Courts (1973), 49 Denver L.J. 463.1
The McCall videotape trial was conducted with the consent of
both parties to the action and in the absence of any statutory
or rule standardization. See Symposium, supra, at 268; Staff
Note, Civ.R. 40.
In response to McCall, this court, under the direction of
then Chief Justice C. William O'Neill (see McCrystal & Young,
Pre-Recorded Videotape Trials - An Ohio Innovation [1973], 39
Brooklyn L.Rev. 560, 561), submitted new Civ.R. 40, effective
July 1, 1972, which provides that:
"All of the testimony and such other evidence as may be
appropriate may be presented at a trial by videotape, subject
to the provisions of the Rules of Superintendence." See Staff
Note, Civ.R. 40.
Effective September 1, 1972, former S.Ct.Sup.R. 15
(superseded by C.P.Sup.R. 12[B] and M.C.Sup.R. 10[B]) set forth
specific guidelines for the use of videotaped testimony.
C.P.Sup.R. 12(B) provides, in pertinent part:
"Videotape Trials.
"(1) Authority. Videotape trials are authorized by Civil
Rule 40. In videotape trials, videotape is the exclusive
medium of presenting testimony irrespective of the availability
of the individual witness to testify in person. All testimony
is recorded on videotape and the limitations of Civil Rule 32
upon the use of depositions do not apply.
"(2) Initiation of Videotape Trial. By agreement of the
parties and with the consent of the trial judge all testimony
and appropriate evidence may be presented by videotape. The
trial judge may order the recording of all testimony and
evidence on videotape in an appropriate case. In determining

whether to order a videotape trial, the trial judge, after
consultation with counsel, shall consider the costs involved,
the nature of the action and the nature and amount of
testimony."
Judge McCrystal, writing a number of articles on the
subject, has pointed out what are thought to be some distinct
advantages in the use of prerecorded videotape trials.2
There also have been a number of articles that take a
somewhat contrary position concerning videotape trials,
pointing out some significant disadvantages in their use. It
is argued that such videotaping negatively impacts the
effective communication of information to the jury.3
In reviewing the parties' objections to the videotape
trial in the present case, we note that one of their concerns
was the impairment of the jury's ability to judge the
credibility of the testimony. In the parties' joint objection
to videotape trial, filed on January 6, 1989, they stated that:
"The testimony of the fact witnesses of Plaintiff and
Defendant are [sic] so contradictory as to make the crucial
issue one of credibility and the limited nature of videotape
testimony does not offer the jury a full and complete
opportunity to judge the credibility of such witnesses as to
body language, attitude and appearance before and after taking
the stand or the interplay between attorney-questioner and the
witness * * *."
Sandusky Cement argues strenuously here that any
advantages of conducting a trial by videotape must be balanced
against the disadvantages of conducting a trial by such means.
Basically, Sandusky Cement argues that there are two major
disadvantages of conducting a trial by such means. First, the
jury's vision is limited to that of the camera. In the
videotape trial, the camera is trained on the witness's head
and shoulders, and thus the jury cannot see hand or body
movements which may affect the witness's credibility. Also,
appellant argues that the videotape trial may unfairly weaken a
party's presentation of evidence, especially impeachment
testimony, since a witness has the opportunity to view the
testimony of other witnesses before he testifies, and may
adjust his own testimony accordingly.
Judges McCrystal and Maschari present many sound arguments
in favor of prerecorded videotape trials, and the empirical
data from their use in Erie County are very strong. See
McCrystal & Maschari, Will Electronic Technology Take the
Witness Stand? (1980), 11 U.Tol.L.Rev. 239. However, the
opposition also has a number of valid points, including the
fact that videotape trials have not gained widespread use, and
are all but confined to Erie County.
However this debate may ultimately be concluded, we find
valid reasons to support the use of prerecorded videotape
trials. In the appropriate case, the prerecording of trials by
videotape may prove to be as beneficial as the videotaping of
certain kinds of evidence, such as expert testimony, that is
almost universally utilized. In any event, we currently have
rules promulgated by this court which authorize this process.
Until such authorization is withdrawn, this court must fairly
interpret and apply the rules.
In determining whether the trial judge in the case sub

judice erred in ordering a videotape trial over the objections
of both parties, we must look to the applicable rules4 in light
of the Ohio and United States Constitutions. Section 5,
Article I of the Ohio Constitution provides: "The right of
trial by jury shall be inviolate, except that, in civil cases,
laws may be passed to authorize the rendering of a verdict by
the concurrence of not less than three-fourths of the jury."
The Seventh Amendment to the United States Constitution
provides in relevant part: "In Suits at common law, where the
value in controversy shall exceed twenty dollars, the right of
trial by jury shall be preserved * * *." It may be argued that
a videotape trial infringes upon what has been considered the
traditional right to a trial by jury as contemplated at the
time these constitutional provisions were drafted. Thus, in
determining the intent behind Civ.R. 40 and C.P.Sup.R. 12(B),
the state and federal Constitutions are an indication as to the
permissible procedure to be used by a trial court.5
Under Civ.R. 40, as further detailed in C.P.Sup.R.
12(B)(2), a prerecorded videotape trial may take place by the
agreement of the parties, or where the court orders such a
trial "in an appropriate case" even though all of the parties,
or only some of the parties object.
C.P.Sup.R. 12(B)(2) provides in pertinent part: "In
determining whether to order a videotape trial, the trial
judge, after consultation with counsel, shall consider the
costs involved, the nature of the action and the nature and
amount of testimony." (Emphasis added.) The word "shall" is
mandatory rather than directory and requires the court to
consider the factors after consultation with counsel.6 See
State ex rel. Niles v. Bernard (1978), 53 Ohio St.2d 31, 34, 7
O.O.3d 119, 121, 372 N.E.2d 339, 341, fn. 2; Malloy v. Westlake
(1977), 52 Ohio St.2d 103, 106, 6 O.O.3d 329, 330, 370 N.E.2d
457, 459; State ex rel. Ewing v. Without a Stitch (1974), 37
Ohio St.2d 95, 103, 66 O.O.2d 223, 228, 307 N.E.2d 911, 917.
This interpretation of the rule is proper in light of the state
and federal constitutional significance which we recognize is
placed upon the right to a trial by jury.
Accordingly, it is reversible error for a trial court to
order a prerecorded videotape trial over the objections of all
parties to an action unless the court reflects in a journal
entry that it has, pursuant to C.P.Sup.R. 12(B), consulted with
the attorneys for the parties and considered the costs
involved, the nature of the action and the nature and amount of
testimony, that these factors taken together indicate a
compelling reason to conduct the trial by videotape and that no
cognizable prejudice will be suffered by the parties. In
considering whether such error was prejudicial, the reviewing
court should take into consideration the parties'
constitutional right to trial by jury, giving substantial
emphasis to the fact that all parties objected to a videotape
trial. The reviewing court should also consider any other
factors that may have induced the trial court to order
videotaping, with the underlying premise being that the trial
court, under such circumstances, should be extremely cautious
in entering such an order. When the reviewing court cannot
find any compelling reason for the trial court's order of
videotaping over the objection of the parties, the order should

be found to be prejudicial error.
Where there is an objection to a videotape trial, and the
trial court has consulted with counsel for the parties and
filed an entry setting forth that the court has considered the
factors of the rule, but still has ordered a videotape trial, a
reviewing court should limit its inquiry to whether the trial
court abused its discretion.
In the case at bar the trial court failed to respond to
the parties' joint objections to the court's order to conduct a
videotape trial. There was no journal entry reflecting that
the trial court had consulted with counsel for the parties
concerning their objections, no entry that the court had
considered the factors set forth in C.P.Sup.R. 12(B)(2), and no
entry of any findings of the court in this regard. Therefore,
we conclude, in the absence of any supportive material to the
contrary, that the trial court erred in this regard to the
prejudice of Sandusky Cement, the party yet complaining of the
videotape trial held over its objection.
Therefore, the judgment must be vacated and the cause
remanded for a new trial.
II
Loss of Enjoyment of Life
In the Fantozzis' sole proposition of law on cross-appeal
they allege that "loss of enjoyment of life is sufficiently
different in nature from pain and suffering as to constitute a
separate, identifiable item of damages."
Damages based on "loss of enjoyment of life" have been
identified by a number of names or descriptions by legal
authors and judicial opinions throughout the country, but in
essence it is an allegation in a tort action that the
plaintiff's capacity to enjoy certain activities of life has
been impaired as a result of personal injury. See 22 American
Jurisprudence 2d (1988), Damages, Section 272. In Huff v.
Tracy (1976), 57 Cal.App.3d 939, 943, 129 Cal.Rptr. 551, 553,
this type of damage was referred to as "physical impairment
which limits the plaintiff's capacity to share in the amenities
of life." This damage connotes the deprivation of certain
pleasurable sensations and enjoyment through impairment or
destruction of the capacity to engage in activities formerly
enjoyed by the injured plaintiff.
Although this court has not specifically discussed the
loss of enjoyment of life as an element of damages in a civil
action, in Binns v. Fredendall (1987), 32 Ohio St.3d 244, 513
N.E.2d 278, we made a general reference to it as one element of
allowable damages: "* * * [R]ecovery for negligently inflicted
emotional and psychiatric injuries accompanied by
contemporaneous physical injury may include damages for mental
anguish, emotional distress, anxiety, grief or loss of
enjoyment of life caused by the death or injury of another. We
strictly limit such recoveries to those plaintiffs directly
involved and contemporaneously injured in the same motor
vehicle and accident with the deceased or other injured
person." (Emphasis added.) Id. at 247, 513 N.E.2d at 281.
The court of appeals below, in citing Binns, stated that:
"We interpret the Binns holding as being applicable only to
actions where severe emotional injuries have resulted from the
plaintiff's involvement in and witnessing of an accident in

which a loved one is killed or injured. The present case
involves a situation in which the plaintiff claims loss of
enjoyment of life due to the physical injuries themselves.
* * *" The court of appeals concluded that Binns is not
applicable to this case and, therefore, the trial court had
erred in submitting the interrogatory on the damage element of
loss of enjoyment of life to the jury.
It must be remembered that Binns dealt with a plaintiff
who was involved in an auto accident in which a close companion
was killed in a gruesome manner. This court recognized that
she could recover for her own physical injuries, for the
extreme mental anguish and emotional distress she encountered
from her witnessing of the accident, and also for loss of the
enjoyment of life that she would have otherwise experienced
with her deceased close companion. The court within that
context limited the right to recover for such injuries "to
those plaintiffs directly involved and contemporaneously
injured in the same motor vehicle and accident with the
deceased or other injured person." Id., 32 Ohio St.3d at 247,
513 N.E.2d at 281.
In Binns, this court recognized that in certain situations
where the plaintiff has received physical injuries as well as
severe emotional injuries caused by the death or injury of
another, the factfinder may consider claimed loss of the
enjoyment of life as a part of the damages assessed. The
language in Binns was not intended to limit the recovery of
such damages to actions seeking recovery for emotional injuries
which have resulted from the plaintiff's involvement in an
accident in which he witnessed a loved one being killed or
injured. Binns did not intend to prevent an injured party in
an action seeking damages for physical injuries from also
recovering damages for impairment of the plaintiff's usual
pleasurable activities. Further, Binns did not discuss whether
such a loss is a separate element of damages concerning which
separate jury instructions may be given, and whether
interrogatories for separate findings of damages may be
submitted.
The fundamental rule of the law of damages is that the
injured party shall have compensation for all of the injuries
sustained. Allison v. McCune (1846), 15 Ohio 726; Loeser v.
Humphrey (1884), 41 Ohio St. 378; Brady v. Stafford (1926), 115
Ohio St. 67, 79, 152 N.E. 188, 192; Pryor v. Webber (1970), 23
Ohio St.2d 104, 52 O.O.2d 395, 263 N.E.2d 235, paragraph one of
the syllabus. Compensatory damages are intended to make whole
the plaintiff for the wrong done to him or her by the
defendant. Id.; Lake Shore & Michigan S. Ry. Co. v. Hutchins
(1881), 37 Ohio St. 282, 294. Compensatory damages are defined
as those which measure the actual loss, and are allowed as
amends therefor. For example, compensatory damages may, among
other allowable elements, encompass direct pecuniary loss, such
as hospital and other medical expenses immediately resulting
from the injury, or loss of time or money from the injury, loss
due to the permanency of the injuries, disabilities or
disfigurement, and physical and mental pain and suffering. See
4 Restatement of the Law 2d, Torts (1965), Section 903 et seq.
These among other elements of damages are well known in Ohio
jurisprudence and are allowable elements to be assessed by the

jury. Some of these elements of damages, such as the costs and
expenses of the injury and loss of time from employment, entail
only the rudimentary process of accounting to calculate. Other
elements such as pain and suffering are more difficult to
evaluate in a monetary sense. The assessment of such damage
is, however, a matter solely for the determination of the trier
of fact because there is no standard by which such pain and
suffering may be measured. In this regard, this court has
recognized that "no substitute for simple human evaluation has
been authoritatively suggested." Flory v. New York Central RR.
Co. (1959), 170 Ohio St. 185, 190, 10 O.O.2d 126, 128, 163
N.E.2d 902, 905.
We have noted that recently in Ohio, as elsewhere,
plaintiffs' attorneys have more frequently included an
additional element of damage, which they generally term "loss
of enjoyment of life," in complaints in personal injury
actions. Although this court in Binns did recognize that "loss
of enjoyment of life" could be considered by the jury in
assessing damage in the type of case presented therein, the
question remains for our consideration whether such damage, be
it known as loss of enjoyment of life or by another name, may
be allowed in other types of negligence actions, and may be
considered as a separate element of damages in the jury
instructions, interrogatories submitted to the jury, and in a
special verdict form.
Courts throughout the United States have differed on
whether damages may be awarded for loss of enjoyment of life in
addition to, and separate from, an award for other elements of
damages such as pain and suffering, or an award for general
damages. A number of state courts of last resort have
recognized the loss of enjoyment of life as a proper element of
damages for personal injuries which may be separate and
distinct from pain and suffering and other categories of
damages. Exemplary of these are: McAlister v. Carl (1964), 233
Md. 446, 197 A.2d 140; Mariner v. Marsden (Wyo.1980), 610 P.2d
6; and Swiler v. Baker's Super Market, Inc. (1979), 203 Neb.
183, 277 N.W.2d 697.
There are also a considerable number of cases from other
states that, while disallowing or discouraging the claim of
loss of enjoyment of life as a separate element of damages with
its own separate jury instruction and separate award, have held
that such claim could be properly considered by the jury in
arriving at the amount for general damages. See, e.g., Leiker
v. Gafford (1989), 245 Kan. 325, 778 P.2d 823; McDougald v.
Garber (1989), 73 N.Y.2d 246, 538 N.Y.S.2d 937, 536 N.E.2d 372;
Leonard v. Parrish (Minn.App.1988), 420 N.W.2d 629; Nussbaum v.
Gibstein (1989), 73 N.Y.2d 912, 539 N.Y.S.2d 289, 536 N.E.2d
618; Huff v. Tracy, supra, 57 Cal.App.3d 939, 129 Cal.Rptr.
551. These courts have, in the main, determined that such a
claim could not be a separate award, in that the plaintiff's
loss of enjoyment of life is encompassed within one of the
established elements of damages such as pain and suffering or
permanency of injuries. Accordingly, the court in Leiker v.
Gafford, supra, stated: "One of the strongest arguments that
has been advanced as a reason for not recognizing loss of
enjoyment of life as a separate category of damages is that it
duplicates or overlaps other categories of damages, such as

permanent disability or pain and suffering." Id., 245 Kan. at
339, 778 P.2d at 834. See, generally, Hermes, Loss of
Enjoyment of Life -- Duplication of Damages Versus Full
Compensation (1987), 63 N.D.L.Rev. 561; Annotation, Loss of
Enjoyment of Life as a Distinct Element or Factor in Awarding
Damages for Bodily Injury (1984), 34 A.L.R. 4th 293; Comment,
Loss of Enjoyment of Life as a Separate Element of Damages
(1981), 12 Pac.L.J. 965.
How each jurisdiction has treated the issue of whether
loss of enjoyment of life is an element of damage separate from
other allowable damages such as pain and suffering, or
permanent disability, has been dependent upon the elements of
damages recognized in that particular state by statute, court
rule, or case law. In like manner, in order to answer the
query presented here, we have looked to our Ohio laws and to
Ohio Jury Instructions (1992)("OJI").
The pertinent instruction contained in OJI is Section
23.01, Personal Injury, which provides in part as follows:
"1. If you find for the plaintiff, you will determine from
the preponderance of the evidence an amount of money that will
reasonably compensate the plaintiff for the actual (injury)
(damage) proximately caused by the negligence of the defendant.
"2. In determining this amount, you will consider the
nature and extent of the injury; the effect upon physical
health; the pain that was experienced; the ability or inability
to perform usual activities; (the earnings that were lost) (the
reasonable cost of necessary medical and hospital expenses
incurred by the plaintiff). From these you will determine what
sum will compensate the plaintiff for the injury to date.
"3. PERMANENT INJURY AND EXPENSE. You will note that the
plaintiff also claims (that the injury is permanent) (that
plaintiff will incur future expense) (that he will experience
pain or disability in the future). As to such claim(s), no
damage may be found except that which is reasonably certain to
exist as a proximate result of the (injury) (collision)."
Most important in the discussion of the issue presented
here is subsection 2, providing that "[i]n determining this
amount, you will consider * * * the ability or inability to
perform usual activities * * *." Also important here is
subsection 3, which provides for claims that the plaintiff
"will experience * * * disability in the future," and instructs
the jury that damages therefor may be awarded only where
proximate cause is shown.
These jury instructions permit consideration of evidence
of claimed damages for the plaintiff's inability, presently and
prospectively, to perform the usual activities of life, such as
the basic mechanical bodily movements that accommodate walking,
climbing stairs, feeding oneself, driving a car, etc. These
instructions also permit the jury to consider evidence of the
plaintiff's inability to perform the usual activities of life
that have actually provided distinct pleasure to this
particular plaintiff, these being the so-called "hedonic"
damages.
Pursuant to these instructions, the jury is to determine,
from the evidence adduced, the amount of money that will
reasonably compensate the plaintiff for the damage proximately
caused by the negligence of the defendant. In determining such

amount the jury may, among other elements, consider the
plaintiff's ability or inability to perform his usual
activities, basic and hedonic (Section 23.01[2]) and also may
consider the claim that the physical disability will continue
in the future (Section 23.01[3]) to prevent the plaintiff from
performing his usual activities.
As reflected in Section 23.01 of OJI, juries in Ohio are
already permitted to award damages for what generally has been
referred to as "loss of enjoyment of life." Therefore, it is
not necessary to create a new and additional element of damage
here that would encompass this claimed loss and resulting
damage.
Accordingly, in current practice, the plaintiff may adduce
evidence concerning his inability, because of the injury, to
perform certain activities that he had usually performed. The
trial counsel may argue such element of damage to the jury, and
the trial court shall give the quoted instruction, and those
set forth hereinafter, to the jury. However, what is sought
here goes beyond the giving of such jury instructions. It is
appellees' position that the jury should be able to consider
such alleged damage separate and apart from any damages for
pain and suffering, and that the jury should be permitted to
make a finding by way of answers to interrogatories and a
verdict for such damages.
One of the elements of compensatory damages that is
universally allowed in actions for personal injuries is the
pain and suffering endured by the plaintiff as a result of the
injury. In addition to compensation for the physical pain, the
jury is permitted to award compensation for the mental
suffering endured. See Smith v. Pittsburg[h] Fort Wayne &
Chicago Ry. Co. (1872), 23 Ohio St. 10, 18-19; Flory v. New
York Central RR. Co., supra.
In Black's Law Dictionary (6 Ed. 1990) 1109, we find that
"pain and suffering" is a "[t]erm used to describe not only
physical discomfort and distress but also mental and emotional
trauma which are recoverable as elements of damage in torts.
* * *"
Generally, pain and suffering has been viewed as a unitary
concept. Accordingly, it was stated in Capelouto v. Kaiser
Found. Hosps. (1972), 7 Cal.3d 889, 892-893, 103 Cal.Rptr. 856,
859, 500 P.2d 880, 883, that: "In general, courts have not
attempted to draw distinctions between the elements of 'pain'
on the one hand, and 'suffering' on the other; rather, the
unitary concept of 'pain and suffering' has served as a
convenient label under which a plaintiff may recover not only
for physical pain but for fright, nervousness, grief, anxiety,
worry, mortification, shock, humiliation, indignity,
embarrassment, apprehension, terror or ordeal." (Footnote
omitted.)
In Ohio, an action in tort may allege, and proof may be
offered on both pain from physical injuries and suffering from
mental or emotional disturbance. However, in Ohio there need
not be a contemporaneous physical injury in order to allege
damages for emotional distress. Schultz v. Barberton Glass Co.
(1983), 4 Ohio St.3d 131, 4 OBR 376, 447 N.E.2d 109, syllabus;
Paugh v. Hanks (1983), 6 Ohio St.3d 72, 6 OBR 114, 451 N.E.2d
759, paragraph two of the syllabus.

As noted, case law generally and repeatedly refers to
"pain and suffering" as an element of damages that is
recoverable in Ohio. However, it is interesting to note that
OJI Section 23.01(2), in setting forth the elements that a jury
may consider in awarding damages, does not refer to "suffering"
but only to "the pain that was experienced." However, at
Section 23.04, Mathematical Formula, OJI, does refer to "pain
and suffering."
In answering the issue presented as to whether the damage
elements of pain and suffering and diminishment or loss of
life's enjoyment should be considered as separate and distinct
elements, we look to the generally understood meaning and use
of the particular terms "pain," "suffering" and "inability to
perform usual activities." Physical pain is the neurological
response to physical damage to the body, and has been defined
as "'a more or less localized sensation of discomfort, distress
or agony resulting from the stimulation of specialized nerve
endings.'" Werchick, Unmeasurable Damages and a Yardstick
(1965), 17 Hastings L.J. 263, 264, quoting Dorland's Medical
Dictionary (24 Ed. 1965). "Suffering," in the sense of damages
as we discuss here, may take a number of forms, and encompass a
number of concepts. Generally, however, it may be viewed as a
mental or emotional state brought on by the plaintiff's
injury. Any definition of suffering, although not definitive,
may include a broad range of emotional responses which may
occur in conjunction with the trauma and resultant physical
injury and pain, or irrespective of any physical injury and
pain. The California Supreme Court has held that mental
suffering "constitutes an aggravation of damages when it
naturally ensues from the act complained of, and in this
connection mental suffering includes nervousness, grief,
anxiety, worry, shock, humiliation and indignity as well as
physical pain." Crisci v. Security Ins. Co. of New Haven
(1967), 66 Cal.2d 425, 433, 58 Cal.Rptr. 13, 18, 426 P.2d 173,
178. It may be quite readily discerned why the damage element
of "pain" has been equated with "suffering," and unified into
the damage element of "pain and suffering." This basically has
been the practice and procedure in Ohio.
In a discussion of this area of the law, we find in the
Comment, Loss of Enjoyment of Life as a Separate Element of
Damages (1981), 12 Pac.L.J. 965, supra, the following:
"In conclusion, pain can be characterized broadly as
physiological while suffering is more appropriately deemed
psychological. Whereas pain refers to the physical sensations
resulting from the corporeal injury, suffering is concerned
primarily with the person's emotional reaction to these
sensations. * * * [H]owever, neither pain nor suffering deals
with the limitations on the person's life created by the
injury." Id. at 972.
The damage with which we deal here is the claimed
impairment of one's physical capacity to enjoy the amenities of
life. This concept entails providing compensation for the
deprivation of one's ability to engage in those activities, and
perform those functions, which were part of, and provided
pleasure to, one's life prior to the injury. This type of
claimed damage is distinguishable from those types of damages
that are based upon recognized categories of bodily pain and

mental suffering. The claim of damages for deprivation or
impairment of life's usual activities has, in other
jurisdictions, been applied to a wide variety of pleasurable
activities shown to have been curtailed by the injuries
received by the plaintiff. Such damages include loss of
ability to play golf, dance, bowl, play musical instruments,
engage in specific outdoor sports, along with other
activities. These types of experiences are all positive
sensations of pleasure, the loss of which could provide a basis
for an award of damages to the plaintiff in varying degrees
depending upon his involvement, as shown by the evidence. Such
proof differs from the elements of mental suffering occasioned
by the plaintiff's injury such as nervousness, grief, shock,
anxiety, and so forth. Although the loss of the ability to
engage in a usual pleasant activity of life is an emotional
experience, it is a loss of a positive experience rather than
the infliction of a negative experience.
In a review and weighing of all factors involved in this
discussion, we find it reasonable to treat the claimed
inability to perform usual functions (both basic and hedonic)
as a separate and distinct element of damage. As noted
previously, such an element of damages has already been
reflected in OJI Section 23.01(2). It would seem to follow
that if Ohio has seen fit to provide for such a statement of
law within its standard jury instructions, then the
determination of such damage may be made by the jury separate
from the other elements of allowable damage that it considers.
We believe that such a conclusion is reasonable based upon
a number of factors. First, we proceed upon the premise that
the primary purpose for awarding damages in a personal injury
action is to, as best that a jury award may do so, restore the
plaintiff to the position occupied prior to the tortious act
occasioning the injuries. Giving Ohio's standard jury
instructions, and permitting a separate interrogatory and jury
finding on this damage, would help the jury understand exactly
what claimed damages it is addressing. This adds more clarity
and objectivity to this part of the jury determination.
Further, we believe a very significant basis of our
conclusion here is the importance of facilitating appellate
review of jury damage awards. With such separate findings by
the jury being available, not only may counsel for the
litigants more accurately determine the need for appeal, but
the review process on appeal would be enhanced.
Accordingly, we conclude that although it may have been
error on the part of the trial court to submit a special
interrogatory on the overbroad element of damage known as "loss
of enjoyment of life" rather than the focused element entitled
"inability to perform usual activities," the error was not
prejudicial, in that we herein specifically authorize the
latter in accord with the language of OJI.
As noted previously, the many jurisdictions which have not
permitted "loss of enjoyment of life" as a separate element of
damages made their determination on the basis that this would
lead to a duplication of damages, in that the jury would have
included that loss within the element of pain and suffering or
the permanency of the disability. We recognize the validity of
such fears, and with the aim of avoiding the feared

duplication, shall herewith set forth new provisions to Section
23.01 of OJI. Our intent is that the trial court shall
henceforth instruct the jury that if it awards damages for loss
of ability to perform usual activities (which will also
encompass the permanency of the disability suffered), the jury
must not award additional damages for that same loss when
considering any other element of damages, such as physical and
mental pain and suffering, as such additional award would be
duplicative.
In the appropriate case, where there have been allegations
of and evidence adduced on the plaintiff's inability to perform
usual activities, occasioned by the injuries received, the
trial court shall give these additional instructions to the
jury:
"If you find from the greater weight of the evidence that,
as a proximate cause of the injuries sustained, the plaintiff
has suffered a permanent disability which is evidenced by way
of the inability to perform the usual activities of life such
as the basic mechanical body movements of walking, climbing
stairs, feeding oneself, driving a car, etc., or by way of the
inability to perform the plaintiff's usual specific activities
which had given pleasure to this particular plaintiff, you may
consider, and make a separate award for, such damages.
"Any amounts that you have determined will be awarded to
the plaintiff for any element of damages shall not be
considered again or added to any other element of damages. You
shall be cautious in your consideration of the damages not to
overlap or duplicate the amounts of your award which would
result in double damages. For example, any amount of damages
awarded to the plaintiff for pain and suffering must not be
awarded again as an element of damages for the plaintiff's
inability to perform usual activities. In like manner, any
amount of damages awarded to the plaintiff for the inability to
perform usual activities must not be considered again as an
element of damages awarded for the plaintiff's pain and
suffering, or any other element of damages."
III
Conclusion
Accordingly, for the foregoing reasons, the judgment of
the court of appeals is reversed on the issue of the propriety
of requiring the parties to submit to a videotape trial over
their joint objection, and on the issue of the claimed damages
for "loss of enjoyment of life." Upon retrial, after
appropriate evidence has been adduced, the damage element of
"loss of ability to perform the plaintiff's usual functions"
may be considered by the jury pursuant to this opinion.
Judgment reversed
and cause remanded.
Moyer, C.J., Sweeney, Douglas, Wright, H. Brown and
Resnick, JJ., concur.
FOOTNOTES:
1 The McCall trial was a civil tort case where only the
extent of damages was in dispute. McCall was the first case in
which all testimony was prerecorded and presented to a jury in
a continuous sequence. The trial was conducted outside the
presence of Judge McCrystal. However, he edited the videotape
before trial in order to remove inadmissible evidence objected

to by counsel. The attorneys were provided the opportunity,
prior to trial, to discuss the judge's rulings on their
objections. Opening statements and, of course, voir dire were
presented live. Following closing arguments, the judge gave
his instructions, via videotape, to the jury who then commenced
deliberations. See Staff Note, Civ.R. 40; and Kornblum,
Videotape in Civil Cases (1972), 24 Hastings L.J. 9, 27.
2 These advantages include:
"(1) the trial flows without interruption from objections,
bench conferences, delays for witnesses, counsel's pauses,
client conferences and chamber retreats; (2) maximum
utilization of juror time is achieved; (3) the time required
for a given trial is shortened considerably; (4) the trial can
be scheduled, with certainty, for a specific day; (5) the
witnesses can be presented in the desired order, obviating the
need for adjustment to availability at the last moment; (6) the
chance of mistrial is greatly reduced; (7) there is no need to
recess for the preparation of instructions; (8) directed
verdict motions are decided when the tapes are previewed and do
not infringe on courtroom time; (9) opening statements should
be more effective with knowledge of precisely what the evidence
will show; (10) the judge need not be present during the
viewing of the tape, freeing him for other duties; (11) the
presence of the lawyers is not required during the viewing of
the tape; (12) it is possible for judge and counsel to conduct
simultaneous trials; (13) trial preparation can be more
effectively scheduled and the taping may be in the most
convenient order of witness availability; (14) last-minute
preparation is eliminated; (15) time is afforded for study of
evidentiary questions; (16) testimony on location is
facilitated; (17) elimination of live trial impediments gives
the jury a comprehensive related view of the entirety of the
case; (18) the tape can serve as the transcript of proceedings
on appeal; (19) retrial is facilitated; (20) extrajudicial
judge influence through reaction to witnesses and comments to
counsel is reduced; (21) the court need no longer resort to the
fiction that a juror can disregard what he has heard in
accordance with the judge's instructions." McCrystal & Young,
Pre-Recorded Videotape Trials - An Ohio Innovation, supra, 39
Brooklyn L.Rev. at 563-564. See, also, McCrystal & Maschari,
Will Electronic Technology Take the Witness Stand? (1980), 11
U.Tol.L.Rev. 239.
3 In Doret, Trial by Videotape -- Can Justice be Seen to
be Done? (1974), 47 Temp.L.Q. 228, 241, it is suggested that
videotape has its effect on the information offered to the jury
in a number of ways:
"There will be: (1) a loss of the completeness in the
information communicated, (2) an electronic distortion of the
information communicated, (3) a limiting in the information
carrying capacity of the trial, (4) perceptual distortions in
the information communicated, (5) a loss in the veracity of the
information communicated and (6) an innate biasing of the
information communicated."
In this article the delicate thread of communication
between witness and jury was aptly described:
"Testimony is a process of communication between witness
and jury. Although the jury is normally silent, the process is

decidedly not a one-way communication since the reactions of
members of the jury tell the witness a great deal about the
impression he, and his testimony, are making. If we view the
process of giving testimony as a communications 'system,' it is
clear that the trial provides the witness with a built-in
'feedback' mechanism. Videotape, however, by allowing the
separation of the witness from the jury's presence, eliminates
the opportunity to receive this feedback." (Footnotes
omitted.) Id. at 250.
Another specific concern about the use of videotape trials
is that a greater potential may exist during a videotape trial
than in a conventional trial for a witness to falsify his or
her testimony given the detachment of the jury from the
witness. Id. at 244. A live trial as opposed to a videotape
trial has all the essential participants convened in the
courtroom, the parties confront each other, and the jury is
present along with the general public. This "charged"
atmosphere may elicit truthtelling and expose falsehood.
4 Although the constitutionality of Civ.R. 40 and
C.P.Sup.R. 12(B) is not challenged in these proceedings, we
must still determine whether the litigants' rights were
violated by the trial judge's apparent failure to take into
account the costs involved, the nature of the action and the
nature and amount of testimony.
5 We will not address the constitutionality of Civ. R. 40
or C.P.Sup.R. 12(B) since they have not been challenged and
there are alternative procedural grounds on which to deal with
the issues before us. See State ex rel. Lieux v. Westlake
(1951), 154 Ohio St. 412, 43 O.O. 343, 96 N.E.2d 414, paragraph
one of the syllabus ("[c]onstitutional questions will not be
decided until the necessity for their decision arises").
6 C.P.Sup.R. 12(B)(2) contains both the words "shall" and
"may" in succeeding sentences. As a general rule of statutory
construction, when "shall" and "may" are used in close
juxtaposition there is a presumption that they are to be given
their ordinary meaning. See, generally, Wachendorf v. Shaver
(1948), 149 Ohio St. 231, 36 O.O. 554, 78 N.E. 370, paragraph
five of the syllabus.