2015 Ohio 3942
Ohio Ct. App.2015Background
- Columbia Gas owned a natural gas regulator station near a Toledo utility pole owned by Toledo Edison; on Nov. 16, 2010 a primary conductor fell from the pole’s insulator onto lower conductors and a fire destroyed the regulator station.
- Columbia sued Toledo Edison (filed Nov. 15, 2012) for negligence and negligent per se, seeking damages for rebuilding costs.
- Toledo Edison moved for summary judgment; Columbia moved for partial summary judgment and submitted affidavits from experts Randall Bills and Robert Carbonara.
- Toledo Edison moved to strike those affidavits; the trial court granted the motion to strike and granted Toledo Edison summary judgment, finding no duty or breach shown and that the event was unforeseen.
- Columbia appealed, raising four assignments: (1) trial court failed to take judicial notice of statutory/regulatory duties, (2) court abused discretion by striking expert affidavits, (3) denial of leave to amend complaint, and (4) failure to apply res ipsa loquitur.
Issues
| Issue | Plaintiff's Argument (Columbia) | Defendant's Argument (Toledo Edison) | Held |
|---|---|---|---|
| 1. Judicial notice of statutes/regulations and negligence per se | Trial court should (and must) take judicial notice under Civ.R. 44.1 of relevant ORC/OAC/NESC duties and apply them to find negligence as a matter of law | NESC/regs were not in the admissible record (reliance on struck affidavit); judicial notice would not itself prove violation or negligence | No plain error; court did not err in failing to take judicial notice or apply those authorities to find negligence because no admissible evidence of a specific violation was presented |
| 2. Striking expert affidavits at summary judgment | Affidavits were timely for summary judgment, no bad faith, plaintiff properly identified experts and no discovery default existed | Plaintiff had represented Bills as the sole testifying expert; Carbonara’s affidavit was hearsay; Bills’ affidavit contained new undisclosed opinions and contradictions | Court did not abuse discretion: Carbonara’s affidavit properly struck (hearsay); new, undisclosed portions of Bills’ affidavit properly struck; harmless as Bills’ deposition and reports remained in the record |
| 3. Denial of leave to amend complaint late in litigation | Amendment would only refine allegations and add punitive damages; little time remained but trial was months away and amendment should be allowed | Motion to amend was untimely (filed ~2 years after complaint), deadlines had passed, and amendment would prejudice defendant by reopening discovery and schedule | No abuse of discretion: motion was untimely and would prejudice defendant; denial affirmed |
| 4. Application of res ipsa loquitur | Equipment on the pole was exclusively controlled by Toledo Edison; the event (line failure and re-energization causing fire) would not normally occur absent defendant’s negligence, so res ipsa should apply | Defendant offered alternative causes (weather, plaintiff’s failure to ground equipment) and disputed exclusive control and causation | Res ipsa inapplicable: plaintiff failed to show exclusive control and absence of other plausible causes; trial court did not err |
Key Cases Cited
- Blakemore v. Blakemore, 5 Ohio St.3d 217 (Ohio 1983) (standard for abuse of discretion)
- Tokles & Son, Inc. v. Midwestern Indem. Co., 65 Ohio St.3d 621 (Ohio 1992) (affidavits at summary judgment must contain admissible evidence)
- Jones v. Murphy, 12 Ohio St.3d 84 (Ohio 1984) (discovery purpose; prevent unfair surprise)
- Shumaker v. Oliver B. Cannon & Sons, Inc., 28 Ohio St.3d 367 (Ohio 1986) (parties entitled to reasonable opportunity to prepare when contentions are unveiled)
- Weimer v. Anzevino, 122 Ohio App.3d 720 (Ohio Ct. App. 1997) (exclusion of evidence is extreme sanction; used to prevent unfair surprise or willful noncompliance)
- Hake v. Wiedemann Brewing Co., 23 Ohio St.2d 65 (Ohio 1970) (elements and legal role of res ipsa loquitur)
- Turner v. Cent. Local School Dist., 85 Ohio St.3d 95 (Ohio 1999) (leave to amend pleadings; undue delay/prejudice bars amendment)
- Schade v. Carnegie Body Co., 70 Ohio St.2d 207 (Ohio 1982) (plain error standard in civil cases)
- Cleveland Elec. Illum. Co. v. Astorhurst Land Co., 18 Ohio St.3d 268 (Ohio 1985) (plain error in civil litigation is limited to exceptional circumstances)