[Cite as Mason v. Pawlowski, 2011-Ohio-3699.]

 

[Please see original opinion at 2011-Ohio-3061.] 

 

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

No. 95766

MEAGHAN MASON 

PLAINTIFF-APPELLEE 

vs. 

JILL PAWLOSKI 

DEFENDANT-APPELLANT 

JUDGMENT: 

AFFIRMED

Civil Appeal from the 

Parma Municipal Court 

Case No. 08 CVE 05339 

BEFORE: Keough, J., Kilbane, A.J., and Sweeney, J. 
RELEASED AND JOURNALIZED: July 28, 2011 

ATTORNEY FOR APPELLANT 

Bradley B. Gibbs 

Ritzler, Coughlin & Paglia, Ltd. 

1360 East Ninth Street 

1000 IMG Center 

Cleveland, OH 44114 

ATTORNEYS FOR APPELLEE 

S. Michael Lear 

Sebastian E. Proels 

Zukerman, Daiker & Lear Co., LPA 

3912 Prospect Avenue, East 

Cleveland, OH 44115 

ON RECONSIDERATION1

KATHLEEN ANN KEOUGH, J.: 

{¶ 1} Defendant-appellant, Jill Pawloski (“Pawloski”), appeals from the 

trial court’s judgment entry, rendered after a jury trial, finding her civilly 

liable for injuries suffered by plaintiff-appellee, Meaghan Mason (“Mason”). 

For the following reasons, we affirm. 

 1

The original announcement of decision, Mason v. Pawloski, Cuyahoga App. No. 95766, 

2011-Ohio-3061, is hereby vacated. This opinion, issued upon reconsideration, is the court’s 

journalized decision in this appeal. See App.R. 22 (C); see, also, S.Ct.Prac.R. 2.2(A). 
{¶ 2} Mason filed a civil complaint alleging that on November 3, 2007, 

at O’Feenies Irish House in Parma Heights, Pawloski committed assault and 

battery against her and that she sustained injuries as a result. In her 

complaint, Mason alleged civil assault, battery, and intentional and negligent 

infliction of emotional distress. She sought both compensatory and punitive 

damages, including attorney fees. The matter proceeded to trial where 

following evidence was presented.2

{¶ 3} On November 3, 2007, Mason and Pawloski were both patrons at 

O’Feenies; both were also apparently romantically involved with Christopher 

Clink. Pawloski arrived at O’Feenies around 8 p.m. to meet with friends. 

Approximately an hour later, Mason arrived with her friend Katherine 

Walczak and sat at the bar to have a drink. After Pawloski noticed and 

recognized Mason, she approached her, carrying a bottle of beer, with the 

intent to speak to her about Clink. According to Mason, Pawloski began 

cussing at her, calling her names, and waving a cell phone in her face. 

Mason testified that Pawloski started to pivot away from her, but then 

quickly swung at her, striking her in the head with the beer bottle. Mason 

 2

The transcript notes that due to technical difficulties, part of the testimony of Pawloski and 

any subsequent witness testimony and court proceedings were not recorded and, thus, not transcribed. 

 Although an affidavit from Attorney Bradley B. Gibbs was attached to Pawloski’s merit brief stating 

the evidence and testimony that the jury heard during this technical failure, we find this means of 

preserving the record for appeal improper. The proper method is providing this court with an App.R. 

9(C) statement of the evidence or proceedings. Accordingly, we will not consider the affidavit of 
testified that she could feel blood running down her face and she heard 

someone say that she was bleeding. Mason, believing Pawloski was going to 

strike her again, lunged at Pawloski and grabbed her shoulder area. 

{¶ 4} Pawloski denied cussing at Mason or insulting her, but admitted 

she tried to show Mason a nude picture of Clink that he sent to her cell phone 

earlier that day to prove that they were involved in a relationship. 

According to Pawloski, Mason suddenly lunged at her, and grabbed her hair. 

Pawloski said she did not know what happened to the beer bottle, but knew it 

fell out of her hands when she tried to get Mason’s hands off of her. “I 

immediately grabbed her arms and that’s when everything went flying. My 

purse and everything.” 

{¶ 5} The two tussled briefly before being separated. Mason left and 

went to the police station to report the incident. When she left O’Feenies, she 

was bleeding from the side of her head. While at the police station, EMS 

treated Mason for a small laceration to her scalp, but she refused any 

additional medical treatment. Five days later, she went to the hospital, 

claiming a constant headache, blurred vision, and dizziness; she was treated 

for a concussion. 

{¶ 6} Officer Luke Wittasek testified that he met Mason and Walczak 

in the lobby of the police station, where he observed that Mason had a small 

 

Attorney Gibbs in lieu of an App.R. 9(C) statement. 
laceration to her head and was bleeding. Mason told Officer Wittasek that 

she had been struck in the head with a beer bottle during an argument with 

Pawloski at O’Feenies. After taking statements from Mason and Walczak, 

Officer Wittasek went to O’Feenies to locate Pawloski. Based on the 

description given by Mason, he was able to identify Pawloski. After 

confirming her identity, he questioned Pawloski about the altercation; in 

response, Pawloski told him that she “might have hit her over the head with a 

beer bottle.” With that admission, he placed Pawloski under arrest for 

assault. 

{¶ 7} The jury found Pawloski liable and awarded damages in Mason’s 

favor. After multiple post-trial motions regarding the award of damages, 

attorney fees, and prejudgment interest, the trial court entered judgment in 

favor of Mason in the amount of $9,351.15. 

{¶ 8} Pawloski appeals, raising two assignments of error, which 

challenge the trial court’s discretion in admitting testimony at trial. “The 

admission or exclusion of evidence rests within the sound discretion of the 

trial court.” State v. Jacks (1989), 63 Ohio App.3d 200, 207, 578 N.E.2d 512. 

Therefore, “[a]n appellate court which reviews the trial court’s admission or 

exclusion of evidence must limit its review to whether the lower court abused 

its discretion.” State v. Finnerty (1989), 45 Ohio St.3d 104, 107, 543 N.E.2d 

1233. An abuse of discretion implies that the court’s attitude is 
unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5 

Ohio St.3d 217, 219, 450 N.E.2d 1140. 

{¶ 9} Officer Wittasek testified regarding the procedures he followed in 

investigating the incident: he obtained witness statements from both Mason 

and Walczak, made observations and took photographs of Mason’s injuries, 

responded to O’Feenies to question Pawloski, and ultimately arrested 

Pawloski for assault. When questioned whether he had “any doubt in [his] 

mind at that point in time that Miss Pawloski had struck Miss Mason over 

the head with a beer bottle,” he stated, over objection: 

{¶ 10} “A. Not that the assault did occur at that point. 

{¶ 11} “Q: [C]ommitted by Miss Pawloski – 

{¶ 12} “A: Yes. 

{¶ 13} “Q: – upon Miss Mason? 

{¶ 14} “A: Yes.” 

{¶ 15} Pawloski contends that the trial court abused its discretion in 

allowing Officer Wittasek to offer his opinion as to the ultimate issue of fact, 

i.e., that Pawloski struck Mason with the beer bottle. She argues that the 

officer’s testimony was inadmissible expert and lay opinion testimony. 

{¶ 16} In order for Officer Wittasek to qualify as an expert, he must 

have some scientific, technical, or other specialized knowledge which would 

assist the trier of fact to understand the evidence. Evid.R. 702. See, also, 
Trebotich v. Broglio (1973), 33 Ohio St.2d 57, 294 N.E.2d 669. To testify as a 

lay witness, Officer Wittasek’s opinions or inferences would have to be limited 

to those opinions or inferences that were rationally based upon his 

perception, or helpful to a clear understanding of his testimony or the 

determination of a fact in issue. Evid.R. 701. 

{¶ 17} In Shepherd v. Midland Mut. Life Ins. Co. (1949), 152 Ohio St. 6, 

87 N.E.2d 156, the Ohio Supreme Court stated in paragraph one of the 

syllabus, “Although a witness may be qualified to give an opinion concerning 

a matter upon which opinion evidence may be admissible in and pertinent to 

the determination of an issue, as a general rule such an opinion, whether 

expert or otherwise, may not be admitted when it, in effect, answers the very 

question as to the existence or nonexistence of an ultimate fact to be 

determined by the jury.” 

{¶ 18} Contrary to Pawloski’s assertion on appeal, the ultimate issue of 

fact was not whether Mason was struck in the head with a beer bottle. The 

ultimate issue before the jury was whether Pawloski engaged in conduct or 

offensive contact that was the proximate cause of Mason’s injury or injuries. 

To prevail on her claims, Mason’s injury did not necessarily have to be caused 

by the beer bottle, but could have been caused by any other means.3

 3

It is unclear of what cause of action the jury found Pawloski liable. The jury was instructed 

on civil assault, battery, and intentional infliction of emotional distress. The verdict forms do not 
{¶ 19} Nevertheless, we find that allowing Officer Wittasek to give his 

opinion was improper because he was not qualified as an expert, he did not 

witness the incident, and his opinion did not help the jury determine a fact in 

issue. Evid.R. 701 and 702. 

{¶ 20} But error in the admission of evidence is not grounds for reversal 

unless substantial rights of the complaining party were affected or it appears 

that substantial justice was not done. Civ.R. 61; O’Brien v. Angley (1980), 63 

Ohio St.2d 159, 164-165, 407 N.E.2d 490. In determining whether a 

substantial right has been affected, the reviewing court must decide whether 

the trier of fact would have reached the same decision had the error not 

occurred. Id. We find that the admission of Officer’s Wittasek’s testimony 

was harmless error because the jury would have reached the same result. 

{¶ 21} Officer Wittasek testified he observed Mason’s injury and, after 

he obtained statements from Mason and Walczak, he went to O’Feenies to 

locate Pawloski. After confirming Pawloski’s identity, he questioned her 

regarding the altercation and she admitted to him that she “might have hit 

her over the head with a beer bottle.” Based on Officer Wittasek’s 

observations of Mason, the statements made by Mason and Walczak, and the 

admission by Pawloski, the jury heard enough testimony to properly deduce 

 

delineate the causes of action; they merely request that the jury circle either “find in favor of the 

Plaintiff” or “find in favor of the Defendant.” Therefore, the jury could have found Pawloski liable 
that the injury sustained by Mason was a result of the scuffle between her 

and Pawloski. Additionally, because the testimony established that 

Pawloski approached Mason carrying a beer bottle, the jury could have 

logically concluded that if Mason was hit by a beer bottle, it belonged to 

Pawloski. 

{¶ 22} Accordingly, Pawloski’s first assignment of error is overruled. 

{¶ 23} Pawloski also challenges the trial court’s decision allowing Mason 

to testify about her closed head injury without presenting expert medical 

testimony. Mason was allowed to testify that when she went to the hospital, 

a CT scan was performed and she was diagnosed with a concussion. 

{¶ 24} “‘Except as to questions of cause and effect [that] are so apparent 

as to be matters of common knowledge, the issue of causal connection 

between an injury and a specific subsequent physical disability involves a 

scientific inquiry and must be established by the opinion of medical witnesses 

competent to express such opinion. In the absence of such medical opinion, it 

is error to refuse to withdraw that issue from the consideration of the jury.’” 

Jimenez v. Puszak (Mar. 11, 1982), Cuyahoga App. No. 44304, quoting 

Darnell v. Eastman (1970), 23 Ohio St.2d 13, 17, 261 N.E.2d 114. 

{¶ 25} In this case, Mason testified that her physical injuries included: 

(1) a laceration to the scalp, (2) blurred vision, (3) dizziness, (4) a perpetual 

 

for all causes of action, or just one. 
headache, and (5) a concussion. Even if we were to find that the admission 

of Mason’s testimony concerning the concussion was improper, it would be 

harmless error because the jury heard testimony and viewed evidence of an 

alternative injury, specifically the laceration to Mason’s head. A laceration 

is not the type of injury that would necessarily require corroborative medical 

testimony. Jimenez, supra. Accordingly, we cannot say that the jury would 

have reached a different decision if the testimony regarding the concussion 

had not been admitted. 

{¶ 26} Pawloski’s second assignment of error is therefore overruled. 

Judgment affirmed. 

It is ordered that appellee recover from appellant costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate be sent to said court to carry this 

judgment into execution. 

A certified copy of this entry shall constitute the mandate pursuant to 

Rule 27 of the Rules of Appellate Procedure. 

KATHLEEN ANN KEOUGH, JUDGE 

MARY EILEEN KILBANE, A.J., and 

JAMES J. SWEENEY, J., CONCUR