Remley v. Cincinnati Metropolitan Housing Authority

Doan, Judge. Appellant Michael Remley filed a lawsuit against appellee Cincinnati Metropolitan Housing Authority for personal injuries he allegedly received when, while fitting a replacement window into a window opening on property owned by appellee, he stepped off a ladder into a hole in the floor. In his complaint appellant asserted that appellee was negligent in failing to maintain the premises where he was injured in a reasonably safe manner. The case was tried to a jury, which returned a verdict of $25,143.15 in favor of appellant, granting him $11,640.15 for medical costs, $7,500 for lost wages, and $6,000 for his pain and suffering. The jury also found that appellant was forty percent negligent. The trial court, pursuant to R.C. 2744.05, offset the award in the amounts of $11,640.15 and $7,500, the amounts the Ohio Bureau of Workers’ Compensation paid appellant as medical benefits and total temporary disability compensation, respectively. The trial court then reduced the remaining $6,000 *575 by the jury’s verdict of forty percent comparative negligence, leaving appellant a net total of $3,600 of damages. Appellant asserts in his sole assignment of error that the trial court erred by reducing his monetary damages by applying R.C. 2744.05. In his accompanying arguments he contends that the statute is unconstitutional because it violates certain rights guaranteed by the Ohio Constitution. A review of the record before us reveals that appellant waived any claim regarding the unconstitutionality of R.C. 2744.05 because he failed to raise that issue before the trial court. “Failure to raise at the trial court level the issue of the constitutionality of a statute or its application, which issue is apparent at the time of trial, constitutes a waiver of such issue and a deviation from this state’s orderly procedure, and therefore need not be heard for the first time on appeal.” State v. Awan (1986), 22 Ohio St.3d 120, 22 OBR 199, 489 N.E.2d 277, syllabus. See Abraham v. Natl. City Bank Corp (1990), 50 Ohio St.3d 175, 176, 553 N.E.2d 619, 620, fn. 1; Lewis v. Cleveland (1993), 89 Ohio App.3d 136, 623 N.E.2d 1233. While I recognize that this waiver doctrine is not absolute and that its application is discretionary, see In re M.D. (1988), 38 Ohio St.3d 149, 527 N.E.2d 286; Mariemont v. Valentine (Nov. 2,1988), Hamilton App. No. C-870440, unreported, 1988 WL 117789, I do not find appellant’s appeal warrants deviation from the general rule stated in State v. Awan, supra. Thus, I decline to consider the merits of appellant’s assignment of error and its accompanying arguments for the first time on appeal. Accordingly, the judgment of the trial court is affirmed. Judgment affirmed. Gorman, J., concurs in judgment only. Bettman, J., concurs separately.