[Cite as Sanders v. Fridd, 2013-Ohio-4338.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

Amy K. Sanders, : 

 Plaintiff-Appellant, : 

 

v. : No. 12AP-688 

 (C.P.C. No. 07CVC-07-9532)

Ryan Fridd et al., : 

 (REGULAR CALENDAR) 

 Defendants-Appellees. : 

 

 

D E C I S I O N 

Rendered on September 30, 2013 

 

Granger Co., L.P.A., and Mark S. Granger; Oliver Law 

Office, and Jami S. Oliver, for appellant. 

 

Frost, Maddox & Norman Co., LPA, and Mark S. Maddox, for 

appellee Ryan Fridd. 

 

APPEAL from the Franklin County Court of Common Pleas 

CONNOR, J. 

{¶ 1} Plaintiff-appellant, Amy K. Sanders ("appellant"), appeals from a judgment, 

pursuant to jury verdict, of the Franklin County Court of Common Pleas in favor of 

defendant-appellee, Ryan Fridd ("Fridd"). Because (1) the trial court properly instructed 

the jury on the law of co-worker immunity, (2) the trial court did not err in denying 

appellant's motion in limine, and (3) the trial court did not abuse its discretion by 

submitting Fridd's proposed interrogatories to the jury, we affirm.

I. FACTS AND PROCEDURAL HISTORY 

{¶ 2} On July 19, 2007, appellant filed a complaint against Fridd, Premierfirst 

Banc, L.L.C. ("Premierfirst"), and the Ohio Bureau of Workers' Compensation ("BWC"). 

Appellant alleged that Fridd, her former co-worker at Premierfirst, negligently caused her 
No. 12AP-688 2 

injury while he was engaged in horseplay disconnected from his employment, and that his 

"actions were approved and ratified by * * * Premierfirst." (Complaint, ¶ 10.) Appellant 

asserted that the BWC held a potential interest in the litigation as a statutory subrogor or 

subrogee. Fridd answered the complaint, asserting that he was immune from appellant's 

negligence claim under the laws governing co-worker immunity. 

{¶ 3} The events giving rise to the complaint occurred in 2006 when appellant 

was employed at Premierfirst as a senior loan officer. Fridd was appellant's direct 

supervisor at Premierfirst and the general manager of the company. Tambra Owens was 

also a supervisor at Premierfirst, but had less authority than Fridd. Gary Woods was the 

owner and sole shareholder of Premierfirst. 

{¶ 4} On February 28, 2006, appellant, Fridd, and another co-worker, Shane 

Adams, were present at the Premierfirst office. Appellant stated that she was carrying a 

loan package to the fax machine when Fridd jumped out of his office, "like to jump out 

and scare [her], and pushed [her] with both arms." (Tr. Vol. II, 29.) Appellant fell to the 

ground and sustained a serious fracture to her left wrist. Appellant stated that she was 

not engaged in any form of horseplay when Fridd pushed her to the ground. 

{¶ 5} Fridd testified that appellant was engaged in horseplay with Adams 

immediately before the accident, and further stated that appellant was swinging her arms 

like "a windmill" as she walked down the hallway toward the fax machine. (Tr. Vol. II, 

169.) Although appellant stated that she had never done the windmill, Adams testified 

that appellant would frequently "do [the windmill] to" employees at Premierfirst. (Tr. 

Vol. II, 231-32.) Fridd stated that he put his hands out to protect himself from appellant's 

windmill, ultimately causing appellant to fall backwards. Appellant applied for and 

received workers' compensation benefits as a result of her injuries. 

{¶ 6} The evidence demonstrated that horseplay was "an ongoing thing" at 

Premierfirst; instances of horseplay occurred "a few times a week at least." (Tr. Vol. II, 

230, 13.) Appellant noted that the Premierfirst employees engaged in various acts of 

physical horseplay, explaining that "if we were passing each other in the hallway, you 

know, the guys would kind of like body bump us. Like just run into us kind of. * * * [O]r 

[appellant] could be on a phone with clients and they would come up behind [her] and 

yank [her] hair * * * or bear hugging." (Tr. Vol. II, 11-12.) Appellant admitted that she 
No. 12AP-688 3 

engaged in some acts of horseplay, such as lowering a co-worker's chair, or "pull[ing] their 

arm hair, [or] pinch[ing] them." (Tr. Vol. II, 103.) She explained that there was a hallway 

near the bathrooms where "it was very common for people to wait outside the door when 

personnel were going to come out of the bathroom and we jump out and scare them." 

(Tr. Vol. II, 104-05.) Appellant stated that Fridd had jumped out and surprised her before 

when she was coming out of the bathroom. Appellant stated that it was not common for 

employees to push one another down. 

{¶ 7} In contrast, Owens testified that the horseplay she witnessed at Premierfirst 

included "[p]unching, slugging, pushing type things. At some points wrestling to the 

ground." (Owens Depo., 15.) Although Owens told Fridd to stop engaging in horseplay, 

Fridd refused to stop. Appellant testified that Fridd initiated much of the horseplay which 

occurred at Premierfirst, and agreed that Fridd "allowed" horseplay "and allowed others 

to engage in it." (Tr. Vol. II, 125.) No Premierfirst employee was ever disciplined for 

engaging in horseplay at the office. 

{¶ 8} Owens testified that she talked to Woods about the horseplay at 

Premierfirst. In response to Owens' comment about the horseplay, Woods said "[l]imited, 

* * * very limited things because he was in and out" of the office. (Owens Depo., 21-22.) 

Owens could not remember anything that Woods specifically said about horseplay in the 

office. Woods stated that no one had ever told him that horseplay was going on in the 

office. 

{¶ 9} Although Woods owned Premierfirst, Woods agreed that he was an 

"absentee owner." (Tr. Vol. II, 210.) Woods had another full time job and rarely went to 

the Premierfirst office. Owens stated that in the three years she worked at Premierfirst, 

Woods had only been in the office "maybe five or six times tops." (Owens Depo., 21-22.) 

{¶ 10} Woods explained that Fridd was the general manager at Premierfirst as he 

"managed about everything." (Tr. Vol. II, 195.) Fridd had the authority to hire and fire 

individuals, to oversee day-to-day operations, to report to payroll, to keep records of all 

business transactions, and to ensure that the company was compliant with state and 

federal guidelines. While Woods characterized Owens as a co-manager, he explained that 

she did not have the authority to hire or fire people, and that her job duties were 

essentially to assist Fridd in the execution of his managerial duties. Woods testified that 
No. 12AP-688 4 

he did not condone horseplay in the office, and stated that horseplay was not part of 

Fridd's job description. 

{¶ 11} Fridd filed a motion for summary judgment on March 16, 2009. The trial 

court granted the motion, finding Fridd was entitled to immunity under R.C. 4123.741. 

The court did not analyze whether Fridd was acting in the course of his employment at the 

time of the accident, as it found that "R.C. 4123.741 requires that the injured employee be 

in the course and scope of his/her employment, not the employee seeking immunity." 

(Apr. 28, 2009 Summary Judgment Decision, 4.) 

{¶ 12} This court reversed the trial court's award of summary judgment. Sanders 

v. Fridd, 10th Dist. No. 09AP-596, 2010-Ohio-2321. We found the trial court's 

interpretation of the co-worker immunity law incorrect, as "R.C. 4123.741 requires that 

both the injured employee and the coemployee who allegedly caused the injury must have 

been in the service of the employer at the time of the injury for immunity to apply." Id. at 

¶ 9, citing Donnelly v. Herron, 88 Ohio St.3d 425 (2000). 

{¶ 13} On May 1, 2009, appellant voluntarily dismissed Premierfirst from the 

action without prejudice. On July 30, 2010, Fridd filed a second motion for summary 

judgment, asserting that he was entitled to immunity under R.C. 4123.741. On September 

14, 2010, the court issued a decision and entry denying Fridd's second motion for 

summary judgment, noting that genuine issues of material fact existed regarding whether 

Premierfirst ratified and endorsed horseplay occurring at the office. 

{¶ 14} The case proceeded to trial before a jury. At the conclusion of the trial, the 

jury returned a verdict in favor of Fridd. 

II. ASSIGNMENTS OF ERROR 

{¶ 15} Appellant appeals, assigning the following errors: 

1. THE TRIAL COURT COMMITTED REVERSIBLE ERROR 

WHEN IT INSTRUCTED THE JURY THAT PLAINTIFFAPPELLANT SANDERS COULD NOT RECOVER FROM 

COWORKER DEFENDANT-APPELLEE FRIDD AS A 

MATTER OF LAW IF PLAINTIFF-APPELLANT SANDERS 

WAS ALSO ENTITLED TO BENEFITS UNDER THE 

WORKER'S COMPENSATION STATUTE SINCE 

COWORKER IMMUNITY ONLY PROTECTS DEFENDANTAPPELLEE FRIDD IF THE JURY FINDS THAT HE WAS AN 

"EMPLOYEE" IN "THE SERVICE OF" HIS EMPLOYER. 
No. 12AP-688 5 

2. THE TRIAL COURT COMMITTED REVERSIBLE ERROR 

BY ADMITTING EVIDENCE OF OTHER ACTS OF 

HORSEPLAY THAT WERE NOT HISTORICALLY OR 

CAUSALLY RELATED TO ACTS GIVING RISE TO 

PLAINTIFF-APPELLANT'S INJURIES. 

3. BASED UPON THE TOTALITY OF THE EVIDENCE 

PRESENTED AT TRIAL, THE ERRONEOUS AND 

CONFLICTING JURY INSTRUCTIONS, AND THE 

WORDING AND ORDER OF THE JURY 

INTERROGATORIES, THE TRIAL COURT CREATED JURY 

CONFUSION AND REVERSIBLE ERROR. 

III. FIRST ASSIGNMENT OF ERROR—JURY INSTRUCTIONS 

{¶ 16} Appellant's first assignment of error asserts the trial court erred in 

instructing the jury on the law regarding co-worker immunity. 

{¶ 17} Ordinarily, a trial court should give requested jury instructions if they are 

correct statements of the law applicable to the facts in the case and reasonable minds 

might reach the conclusions sought by the instructions. Murphy v. Carrollton Mfg. Co.,

61 Ohio St.3d 585, 591 (1991). Jury instructions must be based on the evidence presented 

in the case. "It is well established that the trial court will not instruct the jury where there 

is no evidence to support an issue." Id. 

{¶ 18} Trial courts have a responsibility to give all jury instructions that are 

relevant and necessary for the jury to properly weigh the evidence and perform its duty as 

the fact finder. State v. Comen, 50 Ohio St.3d 206 (1990), paragraph two of the syllabus. 

An instruction is proper if it adequately informs the jury of the law. State v. Conway, 

10th Dist. No. 03AP-585, 2004-Ohio-1222, ¶ 24. With respect to jury instructions, it is 

incumbent upon the trial court to provide the jury a plain, distinct and unambiguous 

statement of the law applicable to the evidence presented by the parties to the trier of fact. 

Marshall v. Gibson, 19 Ohio St.3d 10, 12 (1985). A trial court may refuse to give an 

instruction that is redundant. Bostic v. Connor, 37 Ohio St.3d 144 (1988), paragraph two 

of the syllabus. 

{¶ 19} When a party challenges the jury instructions on appeal, an appellate court 

considers the jury charge as a whole and determines whether the charge misled the jury in 
No. 12AP-688 6 

a manner that affected the complaining party's substantial rights. Kokitka v. Ford Motor 

Co., 73 Ohio St.3d 89, 93 (1995); Columbus Steel Castings Co. v. Alliance Castings Co.,

LLC, 10th Dist. No. 11AP-351, 2011-Ohio-6826, ¶ 15. The decision to give or refuse a 

particular instruction is within the trial court's discretion, and an appellate court will not 

disturb that decision absent an abuse of discretion. Id. at ¶ 15; Eastman v. Stanley 

Works, 180 Ohio App.3d 844, 2009-Ohio-634, ¶ 49 (10th Dist.) The trial court can be 

found to have committed reversible error only where it can be found that the instructions 

given misled the jury. Kokitka at 93. 

{¶ 20} Appellant asserts that various aspects of the trial court's co-worker 

immunity instruction were misstatements of law. The court's instruction on co-worker 

immunity, as a whole, instructed as follows: 

CO-WORKER IMMUNITY 

As a general rule, a coworker is immune from liability for 

injuries caused to another coworker while in the course of and 

arising out of his employment so long as Defendant can 

establish that he was an "employee" as defined by the Ohio 

Workers' Compensation Act. "Employee" is defined by statute 

as "every person in the service of any person, firm or private 

corporation." 

What is "in the service of" an employer? An employee who 

causes an injury on his employer's time and premises while 

engaged in horseplay, disconnected from his employment, is 

not in the service of his employer and does not qualify for 

statutory immunity unless his employer consents to or 

acquiesces in such horseplay or if he proves that he did not 

instigate the horseplay. 

Defendant has the burden to prove he was "in the service of" 

his employer in this case. He must establish by a 

preponderance of the evidence, that his conduct arose from 

and was in the course of his employment. 

Defendant, Ryan Fridd, claims he is entitled to fellow 

employee immunity pursuant to Ohio's Workers' 

Compensation Law. Workers' compensation statutes are to be 

liberally construed in favor of the employee. 
No. 12AP-688 7 

Under Ohio's workers' compensation law, no employee of an 

employer is liable for any injury received by any other 

employee of such employer in the course of and arising out of 

the latter employee's employment if the injury is found to be 

compensable under the workers' compensation statutes. 

Thus, a party who is injured as a result of a co-employee's 

negligent acts, who applied for benefits under Ohio's workers' 

compensation statutes and whose injury is found to be 

compensable thereunder is precluded from pursuing any 

claim against such co-employee. 

In order for Mr. Fridd to be entitled to immunity, his actions 

must have occurred in the course of and arising out of his 

employment at Premierfirst Banc, LLC. He must have been in 

the service of Premierfirst Banc, LLL [sic] at the time of the 

accident. 

An employee's actions occur in the course of and arises out of 

employment if the employee's actions followed as a natural 

incident of the work and as a result of exposure occasioned by 

the nature, conditions or surroundings of the employment. 

An employee need not be actually performing work in order 

for his actions to arise in the course of his employment. When 

an employee diverts from the straight and narrow 

performance of his task, the diversion is not an abandonment 

of his responsibility and service to his employer unless his act 

is so diverted that its very character serves the relationship of 

employer and employee. 

Generally, actions of an employee engaging in horseplay do 

not occur in the course and arise out of his employment. 

Nevertheless, where the employee is engaged in horseplay 

commonly carried on by employees with the knowledge and 

consent or acquiescence of the employer, his actions are 

considered to occur in the course of and arise out of his 

employment and he is entitled to immunity. 

If you find that [appellant's] injuries were proximately caused 

by horseplay that was commonly carried on by Premierfirst 

employees with the knowledge and consent or acquiescence of 

Premierfirst Banc, LLC, then you must find for the Defendant 

Ryan Fridd. 
No. 12AP-688 8 

A corporation cannot see or know anything except by the eyes 

and intelligence of its officers. A corporation can act only 

through its officers and agents, and the knowledge of the 

officers of a corporation is at once the knowledge of the 

corporation. 

If you find from the evidence that Gary Woods, the owner of 

Premierfirst Banc, LLC, assigned all of the managerial duties 

with respect to the corporation to his General Manager, Ryan 

Fridd the knowledge of Ryan Fridd with respect to 

"horseplay" is the knowledge of Premierfirst Banc, LLC. 

Similarly, if you find that Mr. Fridd, pursuant to the authority 

granted by Mr. Woods, hired Tamara Owens as a manager. 

Then, Ms. Owens' knowledge with respect to horseplay is the 

knowledge of Premierfirst Banc, LLC. 

An injury resulting from horseplay by fellow employees, 

instigated and engaged in by [appellant] while on duty, is not 

caused by or connected with [appellant's] employment within 

the purview of the Workmen's Compensation Act. 

You are instructed that if Amy Sanders was engaged in 

horseplay at the time of her injury and if horseplay was not 

permitted, consented to or acquiesced by Premierfirst Banc, 

LLC, she would not have been eligible to receive workers' 

compensation benefits. 

On the other hand, if Amy Sanders was engaged in horseplay 

at the time of her injury and if horseplay was permitted, 

consented to or acquiesced by Premierfirst Banc, LLC, she 

would be eligible to receive workers' compensation benefits. 

(Jury Instructions, 7-10.) 

{¶ 21} Viewing the jury instruction as a whole, it is a correct statement of Ohio coworker immunity law. R.C. 4123.741 provides that: 

No employee of any employer, as defined in division (B) of 

section 4123.01 of the Revised Code, shall be liable to respond 

in damages at common law or by statute for any injury * * * 

received * * * by any other employee of such employer in the 

course of and arising out of the latter employee's employment, 

* * * on the condition that such injury, * * * is found to be 

compensable under sections 4123.01 to 4123.94, inclusive, of 

the Revised Code. 
No. 12AP-688 9 

{¶ 22} An "employee" under the workers' compensation statutes means "[e]very 

person in the service of any person, firm, or private corporation." R.C. 4123.01(A)(1)(b). 

Thus, a co-employee seeking immunity must be "in the service of" their employer at the 

time the injury to the other employee occurs. Donnelly at 428. 

{¶ 23} An employee is in the service of their employer, and entitled to immunity 

under R.C. 4123.741, "only when the actionable conduct occurs 'in the course of, and 

arising out of,' the coemployee's employment, within the meaning of that phrase in the 

Workers' Compensation Act." Id. at syllabus. "The 'in the course of' requirement 

addresses the time, place, and circumstances of the injury, and the 'arising out of' 

requirement addresses the causal connection between the injury and the injured person's 

employment." Maynard v. H.A.M. Landscaping, Inc., 166 Ohio App.3d 76, 2006-Ohio1723, ¶ 22 (8th Dist.), citing Fisher v. Mayfield, 49 Ohio St.3d 275 (1990). 

{¶ 24} "A party who is injured as a result of a co-employee's negligent acts, who 

applied for benefits under Ohio's workers' compensation statutes, and whose injury is 

found to be compensable thereunder is precluded from pursuing any additional commonlaw or statutory remedy against such co-employee." Kaiser v. Strall, 5 Ohio St.3d 91 

(1983), syllabus. Thus, where the "Bureau of Workers' Compensation [finds that an] 

appellee's injuries were sustained in the course of her employment and paid her claim," 

the appellee is "precluded from pursuing a common-law remedy of negligence against her 

fellow employee." Kelbey v. Hurley, 94 Ohio App.3d 409, 414 (3d Dist.1994). See also 

Kaiser at 94 (noting that "[a]s the commission is the body cloaked with exclusive 

authority to compensate workers for work-related injuries, its determination, * * * that an 

injury was occasioned during the course of the claimant's employment must * * * be 

honored"). 

{¶ 25} Kaiser's syllabus holding does not imply that, once an injured employee 

files for and receives workers' compensation, the employee is estopped from filing any 

other action on the claim. The syllabus of Kaiser makes clear that "in order for the party 

who has applied for and received workers' compensation benefits to be precluded from 

seeking common-law remedies against the tortfeasor, he must have been “injured as a 

result of a co- employee's negligent acts.' " (Emphasis sic.) Caygill v. Jablonski, 92 Ohio 
No. 12AP-688 10 

App.3d 31, 34 (6th Dist.1994) (Caygill II). Thus, an injured employee "is not forced, by 

virtue of R.C. 4123.741, to elect between the remedies available in a civil action and those 

available under the workers' compensation statute if the tortfeasor is not a fellow 

employee." Id. See also Jones v. VIP Dev. Co., 15 Ohio St.3d 90, 99 (1984) (finding that 

R.C. 4123.741 does not preclude an employee from enforcing his common law remedies 

against his co-employee for "injuries which are received by a worker due to intentional 

misconduct"); Walter v. Hartley, 2d Dist. No. 97 CA 55 (Mar. 27, 1998), quoting 

Blankenship v. Cincinnati Milacron Chemicals, Inc., 69 Ohio St.2d 608, 613 (1982) (R.C. 

4123.741 does not preclude actions on intentional tort claims because 'the substance of an 

intentional tort claim is not an injury received 'in the course of and arising out of the 

[fellow] employee's employment' "). 

{¶ 26} The "general rule" is "that no compensation is recoverable under the 

Workmen's Compensation Acts for injuries sustained through horseplay or fooling which 

was done independently of, and disconnected from, the performance of any duty of the 

employment." Indus. Comm. v. Bankes, 127 Ohio St. 517, 522 (1934). Exceptions to the 

general rule exist where "the employee who is injured through horseplay or fooling by 

other employees took no part in the fooling, but was attending to his duties," and "where 

[the employee] is injured by horseplay commonly carried on by the employees with the 

knowledge and consent or acquiescence of the employer." Id. See also Kelley v. Ryan, 

12th Dist. No. CA2009-07-104, 2010-Ohio-1514, ¶ 8. 

{¶ 27} Thus, "an employee who causes an injury on his employer's time and 

premises while engaged in 'horseplay,' disconnected from his employment, is not 'in the 

service of' his employer and does not qualify for statutory immunity under R.C. 4123.741, 

unless his employer consents to or acquiesces in such horseplay." Caygill v. Jablonski, 78 

Ohio App.3d 807, 818 (6th Dist.1992) ("Caygill I"). In Caygill I, the evidence established 

that the appellant, Caygill, and defendant, Jablonski, were co-employees working for the 

City of Sylvania. Near the end of a work day, Jablonski became involved in a pick-up 

game of baseball with other employees; Caygill was not involved in the game. Caygill was 

injured when a shovel Jablonski was using as a bat slipped out of Jablonski's hand during 

his turn at bat. Caygill applied for and received workers' compensation benefits for his 
No. 12AP-688 11 

injuries and subsequently filed a complaint against Jablonski based on common law 

negligence. Jablonski asserted that R.C. 4123.741 barred Caygill's negligence action. 

{¶ 28} The evidence in Caygill I established that Jablonski and "others had played 

the game on several occasions, that his employer knew of such, that one supervisor had 

played in the past, and that no supervisor forbade the game." Id. at 818. On such 

evidence the appellate court, reviewing a summary judgment award, found a genuine 

issue of material fact regarding whether the employer had consented to or acquiesced in 

the playing of the game, "and, therefore, whether [Jablonski], at the time of injury, was an 

'employee' entitled to immunity under R.C. 4123.741." Id. 

{¶ 29} Appellant initially asserts that the court's instruction, providing that "a 

party who is injured as a result of a co-employee's negligent acts, who applied for benefits 

under Ohio's workers' compensation statutes and whose injury is found to be 

compensable thereunder is precluded from pursuing any claim against such coemployee," is a "confusing misstatement of Ohio law." (Appellant's brief, 3.) Appellant's 

contention lacks merit. This portion of the jury instruction is nearly a verbatim recitation 

of the Kaiser syllabus holding. 

{¶ 30} Appellant next alleges that the court's instruction regarding imputed 

knowledge was improper. Appellant's counsel objected to the proposed imputed 

knowledge instruction at trial, asserting that it was "not appropriate and not applicable to 

the situation." (Tr. Vol. IV, 22.) 

{¶ 31} The instruction was a correct statement of law. "Ohio has long recognized 

'[a] corporation cannot see or know anything except by the eyes and intelligence of its 

officers.' " Orrenmaa v. CTI Audio, Inc., 11th Dist. No. 2007-A-0088, 2008-Ohio-4299, 

¶ 110, quoting Orme v. Baker, 74 Ohio St. 337 (1906). "A corporation can act only 

through its officer and agents, and the knowledge of the officers of a corporation is at once 

the knowledge of the corporation." Id., citing Arcanum Natl. Bank v. Hessler, 69 Ohio 

St.2d 549, 557 (1982). 

{¶ 32} The instruction was also appropriate given the evidence presented at trial. 

The evidence demonstrated that Premierfirst was a small business with Woods as the sole 

owner and shareholder. Woods agreed that even he "didn't have a title at Premierfirst." 

(Tr. Vol. II, 210.) Woods was not involved in the day-to-day operation of the business; 
No. 12AP-688 12 

Fridd understood that Woods had "left the management of the business to" him. (Tr. Vol. 

II, 161.) Woods explained that Fridd was "[t]he only manager" at Premierfirst and agreed 

that Fridd was "the head of the food chain as far as the people on the job every day." (Tr. 

Vol. II, 210.) As general manager, Fridd "had authority to implement the policies 

concerning horseplay at Premierfirst," and Woods agreed that he left it "up to Ryan Fridd 

to determine what was appropriate when referring to horseplay at Premierfirst." (Tr. Vol. 

II, 214.) 

{¶ 33} Although Fridd was not a corporate officer, Woods delegated complete 

managerial control over the office to Fridd. Accordingly, it was not error for the trial court 

to instruct the jury that Fridd's knowledge regarding the horseplay could be imputed to 

Premierfirst. See Orme at 347-55 (although the cashier of a bank was also on the board of 

directors, the court considered the fact that the board of directors "abandoned all 

supervision and control" over the bank and shifted "all, or at least a large portion of its 

authority and responsibility to [manage the bank to] the shoulders of the cashier," 

relevant to its holding that the cashier's knowledge of the insolvent condition of the bank 

should be imputed to the board of directors); Kornhauser v. Natl. Sur. Co., 114 Ohio St. 

24 (1926), syllabus (noting that "[o]ne who has exclusive possession and control of a 

position in a private corporation occupies such position"); London & Lancashire Indem. 

Co. of Am. v. Fairbanks Steam Shovel Co., 112 Ohio St. 136, 150 (1925). Moreover, 

Woods specifically stated that Fridd had the authority to implement policies concerning 

horseplay at Premierfirst. See Hallowell v. Cty. of Athens, 4th Dist. No. 03CA29, 2004-

Ohio-4257, ¶ 11 (noting that "[a]n employee's knowledge is imputed to his employer only 

if the employee obtained the knowledge while acting within the scope of his 

employment"). 

{¶ 34} Appellant asserts that the imputed knowledge instruction was improper as 

it drew "on the rationale and commensurate presumptions involved with determining the 

respondeat superior liability of a corporation." (Appellant's brief, 5.) Appellant 

complains that the instruction was improper as the court in Donnelly "specifically 

rejected the respondeat superior (scope of employment) test for determining co-worker 

immunity." (Appellant's brief, 6.) 
No. 12AP-688 13 

{¶ 35} Appellant's contention regarding the respondeat superior doctrine is 

misplaced. The respondeat superior doctrine states generally that an employer or 

principal is vicariously liable for the torts of its employees or agents. Faieta v. World 

Harvest Church, 10th Dist. No. 08AP-527, 2008-Ohio-6959, ¶ 54. The imputed 

knowledge doctrine, in contrast, simply allows for the knowledge of certain individuals in 

a corporation to be imputed to the corporation, a creature of law which cannot itself hold 

any knowledge independent from the individuals who comprise the corporation. 

{¶ 36} Appellant asserts that the imputed knowledge instruction was also 

improper because there was no evidence that Woods actually knew about the horseplay 

occurring at Premierfirst. However, the evidence in the record demonstrated that Owens 

informed Woods about the horseplay. Although Woods testified that no one had ever told 

him about the horseplay, the credibility of Woods' and Owens' statements was for the 

jury's determination. 

{¶ 37} Lastly, appellant asserts that the final two paragraphs of the co-worker 

immunity instruction were misstatements of the law. Appellant's counsel objected to the 

two paragraphs, noting that appellant had filed the following proposed special jury 

instruction: 

An injury resulting from horseplay by fellow employees, 

instigated and engaged in by [appellant] while on duty, is not 

caused by or connected with [appellant's] employment within 

the purview of the Workmen's Compensation Act. Ind. Comm. 

V. Bankes (1934), 127 Ohio St. 517, syllabus, paragraph 3. It is 

undisputed that [appellant], Amy Sanders, received benefits 

from the Ohio Bureau of Workers' Compensation for injuries 

she sustained on February 28, 2006. Therefore, you are 

instructed that Amy Sanders did not instigate the horseplay 

that led to her injuries sustained in February 28, 2006. 

(Appellant's Special Jury Instruction No. 1.) 

{¶ 38} The court refused to give appellant's proposed instruction, stating it would 

not "instruct as a matter of law that [appellant] did not engage in horseplay." (Tr. Vol. IV, 

24.) The evidence did not support appellant's proposed instruction. Although appellant 

did receive workers' compensation benefits as a result of her injury, whether she 

instigated or was engaged in horseplay at the time of her injury was a disputed fact. 
No. 12AP-688 14 

{¶ 39} Appellant asserts that the final paragraphs of the instructions were contrary 

to the holding in Bankes, that an injury resulting from "sportive play by fellow employees, 

instigated and engaged in by the injured employee while on duty, is not caused by or 

connected with the workman's employment within the purview of the Workmen's 

Compensation Act." Id. at paragraph three of the syllabus. Appellant asserts that the last 

two paragraphs of the instructions are error, as they simply use the word "engaged" 

instead of the words "instigated and engaged," as the Bankes syllabus required. The third 

to last paragraph in the jury instructions on co-worker immunity properly instructed the 

jury that an injury resulting from horseplay "instigated and engaged in by [appellant] 

while on duty" would not be connected with appellant's employment. (Jury Instructions, 

10.) Accordingly, the absence of the word "instigated" from the final two paragraphs of 

the instructions did not violate appellant's substantial rights, as the third to last paragraph 

correctly included the words instigated and engaged. 

{¶ 40} Appellant further asserts that the final paragraphs of the co-worker 

immunity instruction did not allow the jury to consider whether appellant had or had not 

instigated the horseplay. The determinative issue in the case, however, was whether 

Fridd was immune from liability. Accordingly, the jury never had to consider whether 

appellant instigated or engaged in horseplay, as their focus was on Fridd's conduct. 

{¶ 41} Based on the foregoing, appellant's first assignment of error is overruled. 

IV. SECOND ASSIGNMENT OF ERROR—PRIOR ACTS 

{¶ 42} Appellant's second assignment of error asserts the trial court erred by 

admitting evidence of prior acts of horseplay which were not related to the February 28, 

2006 injury. 

{¶ 43} On the day before trial, appellant's counsel made a motion in limine asking 

the court to "not allow evidence of prior acts" of horseplay which did not "have anything 

to do with the events that led up to this particular incident." (Tr. Vol. I., 6.) Fridd's 

counsel asserted that evidence of other acts of horseplay were necessary to demonstrate 

that Premierfirst had consented to or acquiesced in the horseplay which ultimately led to 

appellant's injuries. While appellant's counsel agreed that "prior conduct regarding 

pushing employees or waving arms as in a windmill fashion" was admissible, appellant's 

counsel asserted that any other acts of general horseplay were not admissible. (Tr. Vol. I, 
No. 12AP-688 15 

8.) The court denied the motion, noting that Fridd "ha[d] a right to show 

circumstantially; in other words, with other activity that was ongoing throughout the 

history of the organization, that this type of activity was, * * * ratified or endorsed, that is, 

the horseplay." (Tr. Vol. I, 10-11.) Appellant's counsel's objected occasionally during the 

trial to evidence of prior acts of horseplay, and the court overruled appellant's objections 

by citing to its earlier ruling on the admissibility of such evidence. 

{¶ 44} A motion in limine is a request " 'that the court limit or exclude use of 

evidence which the movant believes to be improper, and is made in advance of the actual 

presentation of the evidence to the trier of fact, usually prior to trial.' " Gordon v. Ohio 

State Univ., 10th Dist. No. 10AP-1058, 2011-Ohio-5057, ¶ 82, quoting State v. Winston, 71 

Ohio App.3d 154, 158 (2d Dist.1991). Although appellant asserts that she did not make a 

motion in limine because she "did not file a motion in limine, [and] instead made an 

objection before the court on the record," appellant's verbal request to exclude the 

evidence of prior acts of horseplay, made prior to trial, was a motion in limine. 

(Appellant's Reply brief, 12-13.) Compare State v. Deans, 10th Dist. No. 98AP-1463 

(Sept. 30, 1999) (noting that the appellant "made what was essentially an oral motion in 

limine to preclude the state from cross-examining Detective Eberhart" on certain 

matters). (Emphasis sic.) 

{¶ 45} "[A] motion in limine is a preliminary ruling which must be renewed at trial 

or the argument made therein is waived for purposes of appeal." State v. Smith, 7th Dist. 

No. 11 MA 120, 2013-Ohio-756, ¶ 128. " 'The motion asks the court to exclude the 

evidence unless and until the court is first shown that the material is relevant and 

proper.' " Gordon at ¶ 82, quoting Winston. Thus, because a trial court's decision on a 

motion in limine is a ruling to admit or exclude evidence, our standard of review on 

appeal is whether the trial court committed an abuse of discretion that amounted to 

prejudicial error. Id. 

{¶ 46} Appellant asserts that it was error for the trial court to allow evidence of 

general acts of horseplay into the record because "every Ohio case that has ever dealt with 

the issue of co-worker immunity set forth in R.C. 4123.741 has focused only on the act that 

led to injury." (Appellant's brief, 12.) We agree that, for purposes of determining whether 

a co-worker is entitled to immunity under R.C. 4123.741, the relevant inquiry is whether 
No. 12AP-688 16 

the co-worker's injury causing conduct occurred in the course of and arising out of the coworker's employment. 

{¶ 47} However, in co-worker immunity cases involving horseplay, the relevant 

inquiry becomes whether the employer consented to or acquiesced in the horseplay, 

thereby rendering the horseplay in the course of the co-worker's employment. In Caygill 

I, the court found a genuine issue of material fact regarding the employer's consent or 

acquiescence to the baseball game where the evidence established that Jablonski and 

others "had played the game on several occasions." Id. at 818. Thus, in R.C. 4123.741 

cases involving horseplay, prior acts of horseplay are relevant to establish the employer's 

consent or acquiescence. 

{¶ 48} Appellant concedes that evidence of prior similar acts such as pushing or 

surprise attacks were relevant and admissible, but asserts the trial court erred by 

admitting other dissimilar acts of horseplay. Appellant, Fridd, Adams, and Owens all 

testified that various acts of horseplay occurred at Premierfirst, including body bumps, 

punching, wrestling, pulling hair, pinching, and bear hugging, as well as pushing, doing 

the windmill, and jumping out to scare other employees. The dissimilar acts of horseplay 

in the instant case were relevant, as they demonstrated the extent of Premierfirst's 

acquiescence to acts of horseplay and provided the jury with background information 

regarding the atmosphere at Premierfirst. Compare State v. Morris, 132 Ohio St.3d 337, 

2012-Ohio-2407, ¶ 13, quoting State v. Curry, 43 Ohio St.2d 66, 73 (1975) (observing that 

under Evid.R. 404(B) "the admission of certain other-acts evidence" is allowed where the 

"other acts 'form part of the immediate background of the alleged act which forms the 

foundation of the crime charged in the indictment' and are 'inextricably related' to the 

crime"). Moreover, appellant has failed to explain how the evidence of the dissimilar acts 

of horseplay prejudiced her case. The trial court properly admitted all the evidence 

regarding prior acts of horseplay. 

{¶ 49} Based on the foregoing, appellant's second assignment of error is overruled. 

V. THIRD ASSIGNMENT OF ERROR—TOTALITY OF THE EVIDENCE 

{¶ 50} Appellant's third assignment of error asserts that the totality of the evidence 

presented at trial, coupled with the conflicting jury instructions and the wording and 

order of the jury interrogatories, created jury confusion and reversible error. Under this 
No. 12AP-688 17 

assignment of error, appellant expressly argues the merits of the two previous 

assignments of error. Appellant's contentions lack merit for the reasons stated in the 

preceding paragraphs. 

{¶ 51} Appellant also asserts that the interrogatories provided to the jury were 

wrong, misleading, and confusing. Both appellant and Fridd submitted proposed jury 

interrogatories to the court. Appellant's proposed interrogatories asked the jury if Fridd's 

negligence was a proximate cause of appellant's injury, whether Fridd established that he 

was entitled to immunity, and what amount the jury should award as damages. The court 

ultimately provided the jury with Fridd's proposed interrogatories, which similarly asked 

the jury to determine whether Fridd was immune, whether Fridd was negligent, and what 

damages should be awarded. 

{¶ 52} Civ.R. 49(B) allows for the use of interrogatories in conjunction with the 

general verdict. The rule provides, in pertinent part, that: 

The court shall submit written interrogatories to the jury, 

together with appropriate forms for a general verdict, upon 

request of any party prior to the commencement of argument. 

Counsel shall submit the proposed interrogatories to the 

court and to opposing counsel at such time. The court shall 

inform counsel of its proposed action upon the requests prior 

to their arguments to the jury, but the interrogatories shall 

be submitted to the jury in the form that the court approves. 

The interrogatories may be directed to one or more 

determinative issues whether issues of fact or mixed issues of 

fact and law. 

{¶ 53} Civ.R. 49(B) "does not require that the ' "* * * trial judge [act as] a mere 

conduit who must submit all interrogatories counsel may propose. Authority is still vested 

in the judge to control the substance and form of the questions." ' " Ramage v. Cent. Ohio 

Emergency Serv., Inc., 64 Ohio St.3d 97, 107 (1992), quoting Ragone v. Vitali & Beltrami, 

Jr., Inc., 42 Ohio St.2d 161, 165-66 (1975). A trial court also retains the discretion to reject 

submitted interrogatories where the proposed interrogatories are ambiguous, confusing, 

redundant, or otherwise legally objectionable. Id. at 107-08. 

{¶ 54} "Proper jury interrogatories must address determinative issues and must be 

based upon the evidence presented." Id. at 107. "The essential purpose to be served by 

interrogatories is to test the correctness of a general verdict by eliciting from the jury its 
No. 12AP-688 18 

assessment of the determinative issues presented by a given controversy in the context of 

evidence presented at trial." Cincinnati Riverfront Coliseum, Inc. v. McNulty Co., 28 

Ohio St.3d 333, 336-37 (1986), citing Davison v. Flowers, 123 Ohio St. 89 (1930). See 

also Reeves v. Healy, 192 Ohio App.3d 769, 2011-Ohio-1487 (10th Dist.).

{¶ 55} The first interrogatory proposed by Fridd, and submitted to the jury, asked 

the following question: "Did the Defendant prove by a preponderance of the evidence that 

horseplay commonly carried on by employees of Premierfirst Banc, LLC, with the 

knowledge and consent or acquiescence of Premierfirst Banc, LLC." (Jury Interrogatory, 

1.) The court explained that it was providing Fridd's proposed interrogatory to the jury as 

it found that the "primary issue is whether or not horseplay was commonly carried on by 

employees at Premierfirst Banc with the knowledge and consent or acquiescence of 

Premierfirst Banc. * * * That's * * * the very first things they have to figure out." (Tr. Vol. 

IV, 43.) The jury answered the first interrogatory affirmatively and entered a general 

verdict in Fridd's favor. 

{¶ 56} Pursuant to Caygill I and Bankes, the first interrogatory addressed the 

determinative issue in the case regarding whether Premierfirst consented or acquiesced to 

horseplay occurring at Premierfirst. The jury's affirmative answer to the interrogatory 

evidenced the jury's determination that Fridd was entitled to immunity, as his horseplay 

conduct occurred in the course of his employment. Appellant asserts the interrogatory is 

confusing. Although the interrogatory could have been worded differently, the 

interrogatory was not confusing or misleading, as it clearly asked the jury to determine 

whether Premierfirst had consented to or acquiesced in horseplay occurring between 

Premierfirst employees. 

{¶ 57} Appellant's interrogatories were largely redundant of Fridd's 

interrogatories. As such, the trial court did not abuse its discretion in rejecting appellant 

's proposed interrogatories. 

{¶ 58} Appellant asserts that the jury's question to the court during deliberations 

demonstrates that the jury was confused. The jury submitted the following question to 

the court during deliberations: "Do we start our deliberation with Interrogatory No. 1, 

both parties refer to immunity as the first question we answer." (Tr. Vol. IV, 107.) The 

court answered the question by simply writing "yes" on the question and returning it to 
No. 12AP-688 19 

the jury. We do not share in appellant's concern over the jury's question. The question 

simply asked if the jurors were to start with the first interrogatory, and the trial court 

correctly answered yes. 

{¶ 59} Appellant's assigned error asserts that the totality of the evidence presented 

at trial does not support the jury's verdict. The evidence at trial demonstrated that Fridd 

readily permitted horseplay to occur at Premierfirst. Owens informed Woods about the 

horseplay occurring at Premierfirst and Woods took no action in response to such 

information. The evidence further demonstrated that appellant had sought and received 

workers' compensation benefits for her injury. Accordingly, the evidence established that 

Premierfirst consented to or acquiesced in horseplay occurring at the office, rendering 

Fridd's horseplay within the course of his employment and entitling Fridd to immunity 

under R.C. 4123.741. The totality of the evidence supported the jury's verdict. 

{¶ 60} Based on the foregoing, appellant's third assignment of error is overruled 

VI. CONCLUSION 

{¶ 61} Having overruled appellant's three assignments of error, we affirm the 

judgment of the Franklin County Court of Common Pleas. 

Judgment affirmed. 

KLATT, P.J., and DORRIAN, J., concur. 

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