Link v. FirstEnergy Corp.
2014 Ohio 5432
Ohio Ct. App.2014Background
- CEI owned/operated poles on Savage Road; FESC provided support services to CEI.
- Savage Road widening was approved by the Bainbridge Township Board in 2006; county engineers reviewed relocation plans.
- CEI initially relocated some poles but left about eight on the west side, and the road was closed during winter 2008–2009.
- Defendants issued revised plans in March 2009 to keep the unrepositioned poles; the road was reopened without moving them.
- Douglas Link was injured Oct 8, 2010 when a motorcycle struck a CEI pole;Links sued CEI, FESC for negligence, qualified nuisance, loss of consortium, punitive damages; trial in Jan 2013; final judgment and later appeal resulted in partial affirmance, partial reversal/remand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Turner applicability to pole placement | Links argue Turner does not shield CEI because permission existed and/or placement interfered with travel. | CEI contends Turner controls; with permission and non-interference, no liability. | Turner does not bar liability; pole permission lacking here. |
| Qualified nuisance requires public right? | Links contend qualified nuisance exists despite lack of public-right interference. | CEI argues no public-right interference, hence no qualified nuisance. | Qualified nuisance includes private nuisance; public-right requirement not controlling here. |
| Consistency between duty and nuisance verdict | Jury found nuisance but duty not owed; inconsistency supports reversal. | Inconsistency should be resolved by Civ.R.49; no objection, waiver bars reversal. | Error waived; no reversal on this basis. |
| FESC liability for qualified nuisance | Links showed FESC controlled/possessed the Pole, or breached duties. | FESC lacked ownership/control; landlord-out-of-possession defense. | FESC liable; not barred by landordi-tenant defense; evidence supports control/duty. |
| Punitive damages trial | Directed verdict on punitive damages inappropriate; evidence showed conscious disregard. | Insufficient evidence of conscious disregard; great probability of harm lacking. | Directing verdict reversed; remand for new punitive-damages trial; Bidar evidence admissible. |
Key Cases Cited
- Turner v. Ohio Bell Tel. Co., 118 Ohio St.3d 215 (2008) (permits and non-interference limit liability for off-road poles)
- Bidar v. Cleveland Elec. Ill. Co., 8th Dist. Cuyahoga No. 97490, 2012-Ohio-3686 (2012) (pole placement and permission raise triable issues)
- Hardin v. Naughton, 8th Dist. Cuyahoga No. 98645, 2013-Ohio-1549 (2013) (nuisance requires negligence merge with duty and breach)
- Avondet v. Blankstein, 118 Ohio App.3d 357, 692 N.E.2d 1063 (1997) (interrogatory verdict inconsistencies waived if not timely objected)
- Proctor v. Hankinson, 5th Dist. Licking No. 08 CA 0115, 2009-Ohio-4248 (2009) (Civ.R.49 options when jury answers conflict)
- Preston v. Murty, 32 Ohio St.3d 334, 512 N.E.2d 1174 (1987) (actual malice necessary for punitive damages)