2018 Ohio 4755
Ohio Ct. App.2018Background
- In Feb. 2014 Duke Energy lineman Keith Jester died when a 40-foot wooden utility pole collapsed while he and a coworker were climbing it during a pole-removal/line-undergrounding job. The pole had severe underground rot.
- In 2011 Duke Energy contracted Utilimap to inspect ~30,000 poles (including the subject pole). Utilimap’s inspectors recorded the subject pole as inaccessible in Oct. 2011; no groundline excavation was done and the pole was never fully inspected.
- Duke Energy later performed a random audit (4% sample) that uncovered poles that had not been inspected; some poles assigned to the Utilimap inspector of the subject pole were among them. Duke Energy did not produce a contemporaneous RCA report but created a post-accident PowerPoint attributing contributing factors to Duke Energy.
- Plaintiff (Jester’s widow) sued Duke Energy and Utilimap for wrongful death/negligence. The trial court granted summary judgment to Duke Energy (dismissing it), barred Utilimap from pursuing an empty-chair defense under R.C. 2307.23, and the jury found Utilimap 100% at fault, awarding ~ $28M.
- On appeal the court addressed (1) whether pole-climbing is an activity subject to primary assumption of risk, and (2) whether an immune employer (Duke) can be placed on the verdict form/subject to apportionment under R.C. 2307.23.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether pole-climbing is subject to primary assumption of the risk so Utilimap owed no duty | Jester assumed the risk; pole collapse is inherent to the activity | Utilimap: pole-climbing is inherently dangerous and bars negligence as a matter of law | Court: rejected primary assumption of risk; not analogous to recreational cases and defendant failed to show the danger was unavoidably inherent; no JMOL granted (defense overruled) |
| Whether an employer immune under workers’ comp can be apportioned as a nonparty under R.C. 2307.23 (empty-chair defense) | Plaintiff: employer negligence is not a cognizable tort (workers’ comp exclusive remedy) so R.C. 2307.23 cannot apply to employer | Utilimap: R.C. 2307.23 authorizes apportionment to nonparties, including immune employers; fairness requires preventing a defendant from paying more than its share | Court: R.C. 2307.23 permits apportionment to a nonparty employer entitled to immunity; Romig analysis rejected; empty-chair defense available |
| Whether there was sufficient evidence for a reasonable juror to apportion fault to Duke Energy (i.e., whether trial court properly barred evidence and interrogatory involving Duke) | Plaintiff: no evidence Duke acted negligently; trial court correctly barred apportionment | Utilimap: audit results, missing inspections, post-death OSHA citations, and training/temperature issues permit a reasonable juror to find Duke negligent | Court: evidence was sufficient to raise a triable issue as to Duke’s tortious conduct and proximate causation; trial court erred in excluding Duke from apportionment and precluding Utilimap’s empty-chair defense; new trial required |
| Whether appellate errors regarding other evidence (RCA PowerPoint/report) and damages require separate relief | Plaintiff: not addressed on appeal | Utilimap: exclusion/privilege rulings and damages excess/irregularity require reversal or new trial | Court: those claims are moot because reversal/remand is required on the apportionment/empty-chair error; declined to reach them |
Key Cases Cited
- Anderson v. Ceccardi, 6 Ohio St.3d 110 (Ohio 1983) (distinguishes express and primary assumption of the risk; merger of implied assumption of risk with contributory negligence)
- Horvath v. Ish, 134 Ohio St.3d 48 (Ohio 2012) (primary-assumption-of-risk standard and its typical application to recreational/sporting activities)
- Eicher v. U.S. Steel Corp., 32 Ohio St.3d 248 (Ohio 1987) (premises-liability rule re: independent contractors and employer knowledge of hazards)
- Simmers v. Bentley Constr. Co., 64 Ohio St.3d 642 (Ohio 1992) (when issues of negligence/proximate cause are for the jury vs. matters of law)
- O'Day v. Webb, 29 Ohio St.2d 215 (Ohio 1972) (trial court duty to submit essential issues to the jury when reasonable minds could differ)