## Facts

- After a police-precinct party, Gary Burke stood between a pickup truck and a parked car in a parking lot.
- The pickup truck, driven by Martin Malone, was running but stationary; Kerri Schaffner sat in the front passenger seat.
- As additional passengers entered, Schaffner shifted on the bench seat to make room; the accelerator was depressed and the truck suddenly accelerated, striking and pinning Burke and causing serious injury.
- The Burkes alleged Schaffner negligently stepped on the accelerator while moving on the seat.
- Schaffner denied contacting the accelerator; Malone denied depressing it and attributed the pedal depression to Schaffner.
- The Burkes settled with Malone before suit and sued only Schaffner for negligence.

## Issues

1. Whether the trial court erred by refusing to instruct the jury on alternative liability (burden shifting) where either Schaffner or Malone could have depressed the accelerator but only Schaffner was a defendant.
2. Whether alleged instructional errors on assumption of risk and comparative negligence required reversal.
3. Whether the trial court abused its discretion in refusing to let plaintiffs reopen their case to call Schaffner after the defense presented no witnesses, and in admitting evidence including Burke’s blood-alcohol test.

## Decision

- The court of appeals affirmed the judgment on a jury verdict for Schaffner.
- The court held alternative liability was inapplicable because Malone was not joined as a defendant and the doctrine presupposes all potential tortfeasors are parties.
- The court held any potential errors in assumption-of-risk or comparative-negligence instructions were harmless because the jury found Schaffner not negligent.
- The court found no abuse of discretion in refusing to reopen plaintiffs’ case to call Schaffner where the defense presented no new evidence requiring rebuttal.
- The court upheld the challenged evidentiary rulings, including admission of Burke’s blood-alcohol evidence, and in any event found no prejudice given the dispositive finding of no negligence by Schaffner.

## Legal Principles

- Alternative liability (Summers v. Tice–style burden shifting) applies only when multiple defendants are before the court and the plaintiff shows each breached a duty and committed a tortious act, with injury proximately caused by one of them.
- Alternative liability does not apply where only one defendant is sued and only one person can be held liable for the harm on the pleadings and proof.
- Alleged errors relating to comparative negligence or assumption of risk are harmless when the jury’s verdict rests on a threshold finding that the defendant was not negligent.
- Trial management decisions such as reopening a case for additional testimony are reviewed for abuse of discretion; reopening is not required where the opponent has introduced no new evidence to rebut.
- Evidentiary error warrants reversal only upon a showing of prejudice affecting a material issue actually reached by the jury.

## Conclusion

Because the plaintiffs sued only one of two possible actors and failed to join the other potential tortfeasor, they could not obtain an alternative-liability burden shift; the jury’s finding that Schaffner was not negligent rendered alleged instructional and evidentiary errors nonprejudicial, so the defense judgment was affirmed.


Burke v. Schaffner, 114 Ohio App. 3d 655, 683 N.E.2d 861 (Ohio Ct. App. 1996)