Columbia Gas of Ohio, Inc. v. Toledo Edison Co.Columbia Gas of Ohio, Inc. v. Toledo Edison Co.
Trial Court No. CI0201206338
DECISION AND JUDGMENT
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Michael L. Snyder, Jerome W. Cook, Joseph M. Muska and Beth I. Gillin, for appellant.
Denise M. Hasbrook and Emily Ciecka Wilcheck, for appellee.
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SINGER, J.
{¶ 1} Appellant, Columbia Gas of Ohio, Inc., appeals the judgment of the Lucas County Court of Common Pleas. For the reasons that follow, we affirm.
I. The trial court erred as a matter of law by failing to take judicial notice mandated by
II. The trial court abused its discretion and committed reversible error by striking the affidavits of Bills and Carbonara where Appellant Columbia had complied with all pretrial orders, there was no order declaring Appellant Columbia to be in default of any discovery order, and where any good faith comparison of the affidavits and the SEA Reports would have eliminated the baseless and legally unsupported claim that there was any bad faith associated with their content or submission at the summary judgment stage.
III. The trial court abused its discretion by denying Appellant Columbia’s Motion for Leave to file First Amended Complaint Instanter, with Amended Complaint attached, where no justification was provided in the trial court’s order, the amended complaint only amplified on existing claims based upon facts discovered to date, only modified the damages
IV. The trial court erred as a matter of law by failing to apply the doctrine of res ipsa loquitur in support of Appellant Columbia’s Motion for Summary Judgment and in opposition to Defendant’s Motion for Summary Judgment where the facts support a reasonable person concluding that it is more likely that [sic] not that Appellant [sic] Toledo Edison’s negligence was associated with the destruction of the regulator station by fire.
{¶ 3} Appellant owned a natural gas regulator station located on Manhattan Boulevard in Toledo, Ohio. In that vicinity, there was a wooden utility pole with a wooden crossarm and electrical equipment which were owned by appellee.
{¶ 4} On November 16, 2010, the primary conductor which had been attached to the crossarm on the utility pole fell off the insulator and onto three secondary conductors located on the pole below the primary line. Subsequently, a fire occurred which resulted in the destruction of appellant’s regulator station.
{¶ 5} On November 15, 2012, appellant filed a complaint against appellee seeking to recover in excess of $25,000 which appellant alleged it expended in building a new natural gas regulator station. In its complaint, appellant alleged appellee was negligent, as well as negligent per se, by failing to inspect and maintain its equipment, record and retain documentation of defects, and remedy defects. Appellant also alleged damage to real and personal property.
{¶ 7} Appellant’s second assignment of error will be addressed first. Appellant claims the trial court abused its discretion in striking the two affidavits attached to its motion for partial summary judgment. Appellant contends the trial court’s basis for striking the affidavits was that the affidavits were not produced before the expert identification deadline. Appellant argues it timely identified its experts and produced two expert reports, although there was no requirement by the trial court for the exchange of expert reports. Appellant submits it clarified for appellee that Bills was its expert to be called at trial to testify about the entire expert report, but there was no prohibition regarding the submission of another expert’s affidavit in summary judgment briefing. Appellant maintains there was no bad faith related to the submission or content of the affidavits and the court’s ruling effectively excluded the expert reports.
{¶ 9} A trial court’s decision to grant or deny a motion to strike an affidavit is reviewed using an abuse of discretion standard. Early v. The Toledo Blade, 130 Ohio App.3d 302, 318, 720 N.E.2d 107 (6th Dist.1998). An abuse of discretion connotes that the lower court’s attitude in reaching its judgment was unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶ 10} Affidavits offered in support of and in opposition to a motion for summary judgment “shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated in the affidavit.”
A party is under a duty seasonably to supplement his response with respect to any question directly addressed to * * * the identity of each person expected to be called as an expert witness at trial and the subject matter on which he is expected to testify.
{¶ 12} One purpose of the Rules of Civil Procedure is to facilitate the flow of pertinent information between parties by way of discovery requests and to eliminate unfair surprise. Jones v. Murphy, 12 Ohio St.3d 84, 86, 465 N.E.2d 444 (1984). “If discovery is to serve its purpose, the parties must be entitled, upon the unveiling of a contention, to a reasonable opportunity to prepare to defend against it.” Shumaker v. Oliver B. Cannon & Sons, Inc., 28 Ohio St.3d 367, 370, 504 N.E.2d 44 (1986), abrogated on other grounds in State v. D’Ambrosio, 67 Ohio St.3d 185, 616 N.E.2d 909 (1993). The purpose of
{¶ 13} Here, a review of the record shows appellant disclosed the identity of three expert witnesses, Bills, Carbonara and Jeffrey Lindsey. Appellee then requested to take
Carbonara’s Affidavit
{¶ 14} Appellant’s counsel unequivocally represented to appellee’s counsel that Bills would be its testifying expert. Since Carbonara would not be testifying as an expert at trial, the statements in Carbonara’s affidavit are inadmissible hearsay and are not sufficient to support a motion for summary judgment. Tokles, supra; Murdock, supra. Accordingly, the trial court did not abuse its discretion in striking Carbonara’s affidavit.
{¶ 15} Appellee took Bills’ deposition at which Bills testified that the entire scope of his opinions was contained in the two expert reports. Thus, following Bills’ deposition, appellee had a reasonable expectation, in the absence of any supplementation, that Bills’ opinions would be consistent with the responses provided during the discovery process. However, in Bills’ affidavit, he rendered opinions on issues which were not included in the expert reports and which he did not disclose at his deposition.
{¶ 16} We conclude, to the extent that Bills’ affidavit contains new, undisclosed testimony for which no discovery had been provided, the trial court did not abuse its discretion in striking Bills’ affidavit. As to the remaining statements in Bills’ affidavit which are consistent with his previous deposition testimony, we find the court erred in striking these statements. However, this error is harmless as the record shows Bills’ deposition was filed with the trial court and the expert reports, which were discussed with Bills at his deposition, were marked as exhibits to his deposition. Therefore, Bills’ deposition testimony and the expert reports are included in the trial court record.
{¶ 17} For the foregoing reasons, appellant’s second assignment of error is not well-taken.
{¶ 18} In its first assignment of the error, appellant argues the trial court should have taken judicial notice, as required by
{¶ 19} Appellee counters the NESC standards cited by appellant were not a part of the summary judgment record, as the standards were mentioned in Carbonara’s affidavit, and that affidavit was stricken from the summary judgment record. Appellee argues even if the court took judicial notice of these standards it does not mean appellee was negligent. Appellee further contends appellant’s request for this court to take judicial notice of these regulations and find appellee breached the regulations is wholly without merit.
{¶ 20}
(1) Judicial notice shall be taken of the rules of the supreme court of this state and of the decisional, constitutional, and public statutory law of this state.
(2) A party who intends to rely on a municipal ordinance, a local rule of court, or an administrative regulation within this state shall give notice in his pleading or other reasonable written notice.
{¶ 21} Decisions concerning judicial notice are generally reviewed under an abuse of discretion standard. Reichman v. Reichman, 5th Dist. Tuscarawas No. 2001 AP 12 0112, 2002-Ohio-4712, ¶ 23. However, if a party fails to object when a trial court does not take judicial notice, only plain error may be raised on appeal. Kessler v. Kessler, 6th
{¶ 22} Here, a review of the admissible evidence in the record indicates appellant’s complaint contained allegations that appellee failed to comply or act in accordance with certain Ohio Revised Code sections, OAC sections and the NESC. These allegations were sufficiently pled to give notice that appellant intended to rely on these authorities. Thus, the trial court could have taken judicial notice of these authorities had appellant so requested, however, appellant did not move the trial court to take judicial notice of any laws, rules or regulations. Therefore, appellant’s claim that the trial court erred in not taking judicial notice of and applying certain Ohio Revised Code sections, OAC sections and the NESC will be reviewed under a plain error analysis.
{¶ 23} Upon review of the record we find no manifest injustice in the proceedings in the trial court which would constitute plain error. Appellant presented no admissible evidence that appellee violated any particular provision or section of the Ohio Revised Code, the OAC or the NESC. Therefore, there was no plain error in the trial court not
{¶ 24} In addition, appellant has requested that we take judicial notice of and apply relevant Ohio Revised Code sections, the OAC, and the NESC, and find appellee negligent. We decline to take judicial notice of and apply these authorities to find appellee was negligent, as there is no admissible evidence in the record that appellee violated any particular section of the Ohio Revised Code or the OAC or any provision of the NESC. Accordingly, appellant’s first assignment of error is not well-taken.
{¶ 25} In its third assignment of error, appellant contends the trial court abused its discretion in denying its motion for leave to file an amended complaint.
{¶ 26}
{¶ 27} Here, the trial court did not set forth its basis for denying appellant’s motion for leave to amend. However, a review of the record shows with respect to the timing of appellant’s motion, that it was filed almost two years after the original
{¶ 28} Appellant’s proposed amended complaint contained 60 numbered paragraphs, while the original complaint had 24 numbered paragraphs. Appellant offered no explanation for the delay in seeking to amend its complaint and the addition of these new allegations other than to “update and refine the allegations to conform to the information revealed by discovery.” The allowance of these additional allegations would require appellee to file additional pleadings and engage in further discovery, although extensive discovery had already been conducted. In turn, the deadline for filing motions for summary judgment would need to be extended, and other cut off dates would also need to be changed.
{¶ 29} Based on our review of the record, we cannot say the trial court abused its discretion by denying appellant leave to amend its complaint, as appellant’s motion was untimely and appellee would be prejudiced by allowing the amendment. Accordingly, appellant’s third assignment of error is not well-taken.
{¶ 30} In the fourth assignment of error, appellant argues the court erred in failing to apply the doctrine of res ipsa loquitur when ruling on the motions for summary judgment. Appellant maintains appellee was in exclusive control and management of the electrical equipment on the utility pole, the weather at the time was mild with no
{¶ 31} The doctrine of res ipsa loquitur is a rule of evidence which permits a plaintiff to prove negligence circumstantially by showing (1) the instrumentality which caused the harm was in the exclusive control of the defendant and (2) the event which caused the harm was not the type which would normally occur in the absence of the defendant’s negligence. Hake v. Wiedemann Brewing Co., 23 Ohio St.2d 65, 66-67, 262 N.E.2d 703 (1970). Whether a plaintiff has met this burden is a question of law to be determined by the trial court. Id. at 67.
{¶ 32} Here, appellant failed to show that the instrumentality which caused the regulator station fire was under the exclusive control of appellee. While appellant claims the fire was more likely than not associated with appellee’s negligence, appellee produced evidence that the fire occurred due to other causes, namely, the weather and appellant’s own failure to ground the equipment. Based on the evidence presented, this is not a situation where the doctrine of res ipsa loquitur should have been applied. The trial court therefore did not err in failing to apply the doctrine. Accordingly, appellant’s fourth assignment of error is found not well-taken.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to
Arlene Singer, J. _______________________________
JUDGE
Thomas J. Osowik, J.
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Stephen A. Yarbrough, P.J. JUDGE
CONCUR.
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JUDGE
This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.