McCarthy v. Sterling Chems., Inc.
2012 Ohio 5211
Ohio Ct. App.2012Background
- McCarthy suffered a 15-foot fall when a manway assembly separated from a railcar while transferring liquid at Kinder Morgan facility on July 5, 2005.
- Sterling owned the railcar; Rescar maintained Sterling’s railcars; Texana previously maintained the railcar; ACF Industries manufactured the railcar; Kinder Morgan was McCarthy’s employer and third-party defendant.
- May 2000 valve change out (35-psi to 75-psi) was claimed to constitute a material alteration; trial court ruled that ACF and Texana bore no liability.
- The trial court granted summary judgment for Kinder Morgan; jury later found for Sterling and Rescar; court granted a new trial due to allegedly inadequate jury instructions about duties under regulations vs. common law.
- On remand, a different judge reinstated the defense verdict; plaintiffs obtained a second new-trial motion which the trial court granted; this court previously remanded to reinstate the verdict; on appeal, the appellate court reversed and remanded for entry of judgment in favor of Sterling and Rescar.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Waiver and preservation of ACF argument on appeal | McCarthy/Pls. argue ACF issue could be reviewed on appeal. | Sterling/Rescar contend ACF issue was waived and not properly raised. | Waived; cannot raise new ground on second appeal. |
| Authority to entertain second new-trial motion | Second motion based on overlooked issues, including ACF argument. | Trial court lacked authority; issues not raised in first appeal. | Trial court lacked authority; grounds waived; assignments of error needed. |
| Scope of review on remand and finality of judgments | Grounds not specifically ruled on in first new-trial order were reviewable on appeal. | Grounds not raised in first appeal should not be reviewed. | Second new-trial motion review barred; preference for finality. |
| Applicable appellate procedure for cross-appeals | App.R. 3(C)(2) allows supporting judgment on rejected grounds without cross-appeal. | No requirement to file cross-appeal to preserve the issue. | Permitted to support judgment on rejected grounds; not a cross-appeal violation. |
Key Cases Cited
- Cincinnati Gas & Electric Co. v. Joseph Chevrolet, 153 Ohio App.3d 95 (2003-Ohio-1367) (appellee may support trial court’s judgment on grounds rejected by court)
- Nickell v. Gonzalez, 34 Ohio App.3d 364 (1st Dist.1986) (grounds not ruled on by trial court are reviewable on appeal; waivers apply)
- Cope v. Miami Valley Hosp., 195 Ohio App.3d 513 (2011-Ohio-4869) (assignment of error to preserve issue on appeal)
- Brothers v. Morrone-O’Keefe Dev. Co., 2007-Ohio-1942 (10th Dist.) (finality concerns; appellate review limits)