Toledo Edison Co. v. Ohio Bell Tel. Co.Toledo Edison Co. v. Ohio Bell Tel. Co.
Decided: June 19, 2015
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James B. Restivo, for appellee, Toledo Edison Company.
Richard P. Cuneo and Jacob M. Lowenstein, for appellee, Thomas A. Schaller.
Cormac B. DeLaney, Stephen E. House, and Edward L. Bettendorf, for appellants.
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SINGER, J.
{¶ 1} This is an appeal from the Perrysburg Municipal Court awarding judgment against appellant, The Ohio Bell Telephone Company, d.b.a.“AT&T” Ohio (“AT&T“), for negligence. For the reasons that follow, we affirm.
{¶ 3} A jury trial commenced on July 23, 2014. On July 25, 2014, the jury found that only AT&T was negligent and directly and proximately caused the damage to Edison‘s property in the amount of $4,650.11. The jury also found that AT&T‘s negligence directly and proximately caused the damage to Schaller‘s property in the amount of $1,039.48. AT&T now appeals setting forth the following assignments of error:
I. The trial court erred in denying the repeated motions for a directed verdict made by defendant-appellant AT&T.
II. The trial court erred in permitting the representative of and witness for plaintiff-appellee Toledo Edison Company to testify to impermissible and prejudicial other acts/course of conduct evidence.
III. The trial court erred in granting plaintiff-appellee Toledo Edison Company‘s motion in limine and precluding the representative of and witness for defendant-appellant AT&T from giving material testimony based on first-hand knowledge of records of which she was the keeper, her own personal observations, and her review of photographs admitted into evidence.
{¶ 4} In AT&T‘s first assignment of error, it argues that the trial court erred in failing to grant directed verdicts against Edison‘s and Schaller‘s claims for negligence.
{¶ 5}
{¶ 7} In order to establish a negligence claim, the plaintiff must demonstrate a duty owed by the defendant to the plaintiff, a breach of that duty, and that the plaintiff‘s injury proximately resulted from the defendant‘s breach of duty. Jeffers v. Olexo, 43 Ohio St.3d 140, 142, 539 N.E.2d 614 (1989).
{¶ 8} Initially we note that it is undisputed that Schaller‘s farm machinery stood 14 feet, 6 inches tall. The evidence showed that when placing lines across roadways, AT&T followed, at the very least, the National Electric Safety Code guidelines which call for lines to be 15 feet, 5 inches above the roadway. When an AT&T manager was asked on the stand if, based on these measurements, the line must have been lower than Schaller‘s machinery, she replied: “[y]ou have to assume that.”
{¶ 9} Beginning with the existence of a duty, Ohio Supreme Court requires a public utility “to exercise the highest degree of care consistent with the practical operation of its business in the construction, maintenance, and inspection of its equipment.” Otte v. Dayton Power and Light Co., 37 Ohio St.3d 33, 38, 523 N.E.2d 835 (1998). Under Ohio negligence law, the issue of whether or not a duty exists is a question of law for the court to determine. Wallace v. Ohio Dept. of Commerce, 96 Ohio St.3d 266, 2002-Ohio-4210, 773 N.E.2d 1018, ¶ 24. Further, the duty element of negligence may be established by common law, by legislative enactment, or by the
{¶ 10} It is also undisputed that AT&T owned the line at issue. Here, appellees produced some evidence that a duty existed in the form of exhibit No. 1, a joint operating agreement both AT&T and Edison voluntarily entered into in 2011. The agreement assigns each party a duty to maintain their respective property. Specifically, Article 8.105 of the agreement provides that “[E]ach party shall, at its own expense, place, maintain, repair, rearrange, transfer and remove its own attachments and shall at all times perform such work promptly * * *.”
{¶ 11} As for breach of duty, AT&T claims to have no actual notice of the low hanging line and therefore argues, it could not have breached any duty owed to appellees. However, this argument is without merit because here, the circumstances call for the owner to have the duty to inspect, discover and fix its low lines. Thus, constructive notice would apply where a line was hung but no proper inspection or maintenance occurred. Moreover, there was nothing prohibiting AT&T from inspecting and maintaining its line, and reasonable minds could find that it is indeed foreseeable that such damages would result from an omission to do so.
{¶ 13} When the party opposing a directed verdict motion fails to produce any evidence on one or more of the essential elements of a claim, a directed verdict is appropriate. Hargrove v. Tanner, 66 Ohio App.3d 693, 695, 586 N.E.2d 141 (9th Dist.1990). Viewing the record in its entirety, we find that the evidence was sufficient to defeat the directed verdict motions and the claims were properly submitted to the jury. Accordingly, the trial court did not err in denying the directed verdict motions. AT&T‘s first assignment of error is found not well-taken.1
{¶ 14} In AT&T‘s second assignment of error, it asserts that the trial court abused its discretion to allowing a witness to testify regarding other acts which purportedly show a course of conduct.
{¶ 15} Pursuant to
{¶ 16} At trial, an employee and witness for Edison testified that she was aware of instances where low hanging lines were reported to AT&T and the company did nothing to address the problem. AT&T contends that the court arbitrarily, unreasonably, or unconscionably allowed this statement as evidence showing AT&T had the negligent propensity to ignore its low lines, and therefore, it must have acted in accordance regarding the subject line.
{¶ 17}
{¶ 18} In AT&T‘s third assignment of error, it asserts that the trial court abused its discretion in granting Edison‘s motion in limine thereby precluding testimony from AT&T‘s representative.
{¶ 19} A motion in limine is a precautionary request directed to the discretion of the court to limit introduction of specified evidence until its admissibility may be determined outside the presence of the jury. Staerker v. CSX Transp., Inc., 6th Dist. Lucas No. L-05-1416, 2006-Ohio-4803, ¶ 19. A ruling on a motion in limine is
{¶ 20} Decisions involving the admissibility of evidence are reviewed for an abuse of discretion. Kinn v. HCR ManorCare, 998 N.E.2d 852, 2013-Ohio-4086, ¶ 24 (6th Dist.) Likewise, we review a trial court‘s decision granting a motion in limine for an abuse of discretion. Id. (Citation omitted.)
{¶ 21} Here, AT&T contends that its representative should have had the opportunity to present testimony that the subject wire was properly installed. Following the conclusion, at trial, to grant Edison‘s motion, AT&T made a proffer of the excluded testimony alleging two findings. First, the 1991 installation of the subject wire was in accordance with the National Electric Safety Code. Second, the connection of the subject wire exceeded current National Electric Safety standards. Hence, AT&T argues it was materially prejudiced by the evidentiary ruling to exclude this testimony.
{¶ 23} For the forgoing reasons, the judgment of the Perrysburg Municipal Court is affirmed. Appellant is ordered to pay costs of this appeal pursuant to
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to
Arlene Singer, J. _______________________________
JUDGE
Stephen A. Yarbrough, P.J. _______________________________
James D. Jensen, J. JUDGE
CONCUR. _______________________________
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.