[Cite as Romig v. Baker Hi-Way Express, Inc., 2012-Ohio-321.]
COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT
SANDRA ROMIG
Plaintiff-Appellee
-vs-
BAKER HI-WAY EXPRESS, INC., ET AL
Defendant-Appellee JUDGES: Hon. W. Scott Gwin, P.J. Hon. John W. Wise, J. Hon. Julie A. Edwards, J.
Case No. 2011AP-02-0008
OPINION
And
WORTHINGTON CYLINDER CORPORATION
Defendant-Appellant
CHARACTER OF PROCEEDING: Civil appeal from the Tuscarawas County Court of Common Pleas, Case No. 2009CT010080
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: January 27, 2012
APPEARANCES: For Plaintiff-Appellee For Defendant-Appellant Sandra Romig Worthington Cylinder Corporation ALLEN SCHULMAN, JR. ERIC LARSON ZALUD BRIAN L. ZIMMERMAN CLARE R. TAFT SCHULMAN ZIMMERMAN BENESCH FRIEDLANDER COPLAN & & ASSOCIATES ARNOFF, LLP 236 Third Street S.W. 200 Public Square, Ste. 2300 Canton, Oh 44702 Cleveland, OH 44114-2378 KENNETH A. CALDERON CRAIG G. PELINI For Defendant/Appellee Amicus Curiae in support of Appellant Baker Hi-Way Express, Inc. Pelini, Campbell, Williams & Traub Hanna Campbell & Powell, LLP Bretton Commons, Suite 400 3737 Embassy Parkway 8040 Cleveland Avenue N.W. Box 5521 North Canton, OH 44720 Akron, OH 44334
Gwin, P.J.
{¶ 1} Defendant-appellant Worthington Cylinder Corporation appeals a judgment
of the Court of Common Pleas of Tuscarawas County, Ohio, entered on a jury verdict in
favor of plaintiff-appellee Sandra Romig individually and as the Executrix of the Estate
of Robert L. Romig, Jr., deceased and a summary judgment in favor of defendants-
appellees Baker Hi-Way Express, Inc. on Worthington’s cross-claim. Worthington
assigns four errors to the trial court:
{¶ 2} “I. THE TRIAL COURT ERRED IN GRANTING BAKER HI-WAY EXPRESS
INC.’S MOTION FOR SUMMARY JUDGMENT AS TO APPELLANT WORTHINGTON
CYLINDER CORPORATION’S CROSS-CLAIM FOR INDEMNITY, BREACH OF
CONTRACT AND DECLARATORY JUDGMENT BECAUSE THE APPLICABLE
AGREEMENT CONTAINS AN ENFORCEABLE INDEMNITY CLAUSE.
{¶ 3} “II. THE TRIAL COURT ERRED IN DENYING APPELLANT
WORTHINGTON CYLINDER CORPORATION’S MOTION FOR A DIRECTED
VERDICT.
{¶ 4} “III. THE TRIAL COURT ERRED IN DENYING APPELLANT
WORTHINGTON CYLINDER CORPORATION’S MOTION FOR JUDGMENT
NOTWITHSTANDING THE VERDICT. {¶ 5} “IV. THE TRIAL COURT ERRED IN DENYING APPELLANT
WORTHINGTON CYLINDER CORPORATION’S MOTION FOR A NEW TRIAL, AND
ALTERNATIVE MOTION FOR REMITTITUR.”
{¶ 6} Appellee Sandra Romig (hereinafter “Romig”) is the widow of decedent
Robert Romig Jr. Decedent was employed by appellee Baker Hi-Way Express, Inc.
(“Baker”), a motor carrier. Appellant Worthington Cylinder Corporation (“Worthington”)
manufactures propane tanks, or cylinders that are transported by motor carriers, such
as Baker, to propane suppliers.
{¶ 7} Decedent was a veteran driver who had been driving trucks since 1968,
logging over two million miles with vans and flat-bed trailers. Worthington’s employee
testified decedent had picked up 75 to 100 loads of empty propane tanks from
Worthington during his employment. On June 17, 2005, decedent, acting within the
course and scope of his employment with Baker, went to Worthington’s facility to pick
up a load of steel propane tanks. Decedent backed his tractor trailer into the loading
dock for Worthington’s employees to load with twelve “cradles” of propane cylinders and
two skids of tank lids for shipment to delivery sites in New Hampshire. Decedent’s
trailer was a bi-level drop deck trailer, a flat-bed trailer in which the forward portion of
the deck is higher than the rear deck.
{¶ 8} The cradles were designed to hold sixteen propane cylinders, weighing 141
pounds each, strapped together with steel bands on top of wooden slats. Once
assembled each cradle weighed 2568 pounds and stood seven feet tall. Worthington
designed and constructed this configuration. {¶ 9} Decedent was present when Worthington’s employees loaded the trailer
using an over-head crane and a forklift. On the day in question, Worthington’s
employees loaded eight cradles and both skids of lids on the lower deck of the trailer
and four cradles on the upper deck. Because of the dimensions of the deck and
cradles, it was extremely difficult if not impossible to place four cradles on the upper
deck without some overhang. On the day in question, the fourth cradle overhung the
lower three by approximately one inch.
{¶ 10} At trial, there was differing testimony presented regarding
Worthington’s rules on the proper loading of the cradles. Worthington’s dock manager
testified the rule was only three cradles were to be put on the upper deck of a drop-deck
trailer unless the driver specifically instructed the loader to place a fourth cradle on the
upper deck. The dock manager testified even if the driver specifically asked the loader
to place a fourth cradle on the upper deck, it was only to be placed on the upper deck if
there was no overhang of the fourth cradle out over the lower deck. He testified there
was never any reason for a fourth cradle to be loaded on the top deck of a trailer
because it would always fit on the lower deck and four cradles on the top deck would be
too high. The dock manager testified his workers were told to ask every single time
before placing a fourth cradle on the top deck of a drop-deck trailer. If the loader saw a
potentially dangerous condition, he was to point it out to the driver.
{¶ 11} Baker employees testified they had never heard of the three-cradle
rule and were unaware of the danger of placing a fourth cradle on the upper deck. One
Baker driver testified he asked a Worthington loader about a cradle that was
overhanging the upper deck, and was told that was the way the cradles were loaded. {¶ 12} The Worthington employee who loaded the cradles that day
testified decedent stood near the loader as the loader placed the cradles on the trailer.
Each time, he asked decedent if the cradle was where decedent wanted it and if it was
okay. Each time decedent told the loader it was all right. The Worthington employee
testified the spot where the top deck ends and the lower deck begins was at decedent’s
eye level from where decedent was standing. The loader testified both he and
decedent saw the overhang, and if decedent had asked him to re-position it, or place it
on the lower deck, the loader would have done so. The loader testified decedent
hooked and ratcheted the cradles to the trailer deck with securement straps, and as he
did so, decedent was at eye level to the one inch overhang. Decedent signed two bills
of lading which stated the material had been placed on the truck at the carrier’s direction
and in accord with the driver’s instructions.
{¶ 13} Decedent transported the load of propane tanks to New Hampshire
without incident, and safely unloaded and delivered one skid of lids and six cradles, all
from the lower deck of the trailer, to the Eastern Propane facility in Hudson, New
Hampshire. Thereafter, decedent drove to an Eastern Propane facility located in
Loudon, New Hampshire to unload the remaining six cradles of propane tanks and the
skid of lids. Decedent removed the securing straps, but then an Eastern Propane
employee asked decedent to move the tractor trailer to different area about fifty to one
hundred feet away.
{¶ 14} Decedent safely unloaded the skid of lids and the two cradles of
propane tanks from the lower level of the drop deck trailer. While attempting to connect
the mobile crane to the fourth cradle overhanging the upper deck, the cradle tipped, crushing decedent against the crane and killing him. The Worthington employee who
had loaded the fatal load testified when he heard about the accident, he immediately
thought of the overhang of the fourth cradle on the upper deck.
{¶ 15} OCSA investigated Baker’s involvement in decedent’s death and
issued a number of citations against Baker.
{¶ 16} On June 19, 2000, Worthington and Baker had entered into a
written agreement for trucking services, including the transportation of propane tanks.
The agreement carried an indemnity clause, which states:
{¶ 17} “6. CARRIER shall save, defend and indemnify and hold SHIPPER
harmless against any and all claims for loss, liability, damages or expense imposed
upon or claimed against SHIPPER, arising out of or in any way connected with
operations by or for CARRIER under the terms hereof. CARRIER agrees to comply
with all applicable state, federal and local laws, and CARRIER’S obligation to indemnify
SHIPPER shall include any failure of the CARRIER or those acting for or under
CARRIER to conform to any laws, ordinances, regulations or requirements of any
governmental authority.”
{¶ 18} Romig brought suit against Worthington for wrongful death and
against Baker for an employer intentional tort. Worthington brought a cross-claim
against Baker, asserting four counts. Count one asked for declaratory relief on the
agreement between Baker and Worthington regarding Baker’s duty to defend. Count
two asked for declaratory relief regarding Baker’s duty to indemnify Worthington under
the terms of the agreement. Count three sounded in breach of contract for Baker’s
refusal to defend, indemnify, or hold Worthington harmless. Count four asked for contribution and indemnification. Paragraph 28 stated: “Should Worthington be found
liable to plaintiff, which liability is expressly denied, than Baker was actively and
primarily negligent and otherwise responsible for plaintiff’s claimed damages and
therefore, Worthington is entitled to and seeks indemnification and/or contribution from
Baker.”
{¶ 19} Baker moved for summary judgment on counts one, two and three
of Worthington’s cross-claim, arguing Baker’s statutory immunity pursuant to the Ohio
Workers’ Compensation Act precluded any claims for contractual indemnity by
Worthington relating to the death of Baker’s employee. Worthington argued Romig’s
intentional tort claim against Baker stripped it of its Worker’s Compensation immunity for
all purposes in the lawsuit, including Worthington’s claims. The court granted Baker’s
motion for summary judgment on April 29, 2009.
{¶ 20} Worthington’s motion for summary judgment as to Romig’s claims,
citing United States v. Savage Truck Lines, Inc. (1953), 209 F. 2d 442 and subsequent
cases, argued the decedent’s death was a result of his own actions and there was no
evidence of negligence by Worthington. The court overruled Worthington’s motion.
{¶ 21} The matter proceeded to trial on Romig’s negligence claim against
Worthington, and the jury returned a verdict on her behalf finding decedent was not
negligent, and awarding damages against Worthington for more than $3,000,000.
IV
{¶ 22} In its fourth assignment of error, Worthington argues the trial court
should have permitted it to introduce evidence that Baker’s negligence was a proximate cause of decedent’s death, and to permit Worthington to raise the “empty chair”
defense.
{¶ 23} In 2005 the legislature enacted sweeping tort legislation with the stated
purpose of striking a balance between the rights of injured persons versus those parties
unfairly sued in frivolous lawsuits. Among the changes adopted was the “empty chair”
defense contained in R.C. 2307.23. The statute provides:
{¶ 24} “Requirements when determining percentage of tortious conduct
attributable to party
{¶ 25} “(A) In determining the percentage of tortious conduct attributable to a
party in a tort action under section 2307.22 or sections 2315.32 to 2315.36 of the
Revised Code, the court in a nonjury action shall make findings of fact, and the jury in a
jury action shall return a general verdict accompanied by answers to interrogatories,
that shall specify all of the following:
{¶ 26} “(1) The percentage of tortious conduct that proximately caused the injury
or loss to person or property or the wrongful death that is attributable to the plaintiff and
to each party to the tort action from whom the plaintiff seeks recovery in this action;
{¶ 27} “(2) The percentage of tortious conduct that proximately caused the injury
or loss to person or property or the wrongful death that is attributable to each person
from whom the plaintiff does not seek recovery in this action.
{¶ 28} “(B) The sum of the percentages of tortious conduct as determined
pursuant to division (A) of this section shall equal one hundred per cent.
{¶ 29} “(C) For purposes of division (A)(2) of this section, it is an affirmative
defense for each party to the tort action from whom the plaintiff seeks recovery in this action that a specific percentage of the tortious conduct that proximately caused the
injury or loss to person or property or the wrongful death is attributable to one or more
persons from whom the plaintiff does not seek recovery in this action. Any party to the
tort action from whom the plaintiff seeks recovery in this action may raise an affirmative
defense under this division at any time before the trial of the action.”
{¶ 30} The goal is to ensure no defendant pays more than his or her fair share of
the plaintiff’s damages. A jury or the trial court in a bench trial must determine the
percentage of tortious conduct attributable to every person or entity, regardless of
whether that person or entity is named as a party defendant in the action.
{¶ 31} The statute contains no exceptions for employers or any other
potential non-party who enjoys immunity from liability. The trial court found Baker was
immune from liability for negligence pursuant to the Workers’ Compensation Act.
{¶ 32} R.C. 4123.74 provides:
{¶ 33} “Employer's liability in damages
{¶ 34} “Employers who comply with section 4123.35 of the Revised Code shall
not be liable to respond in damages at common law or by statute for any injury, or
occupational disease, or bodily condition, received or contracted by any employee in
the course of or arising out of his employment, or for any death resulting from such
injury, occupational disease, or bodily condition occurring during the period covered by
such premium so paid into the state insurance fund, or during the interval the employer
is a self-insuring employer, whether or not such injury, occupational disease, bodily
condition, or death is compensable under this chapter.”
{¶ 35} R.C. 4123.741 is entitled “Employee's liability in damages”. It provides: {¶ 36} “No employee of any employer, as defined in division (B) of section
4123.01 of the Revised Code, shall be liable to respond in damages at common law or
by statute for any injury or occupational disease, received or contracted by any other
employee of such employer in the course of and arising out of the latter employee's
employment, or for any death resulting from such injury or occupational disease, on the
condition that such injury, occupational disease, or death is found to be compensable
under sections 4123.01 to 4123.94, inclusive, of the Revised Code.”
{¶ 37} It appears there is no way to reconcile R.C. 2307.23’s failure to exclude
employer negligence with the present Workers’ Compensation statutes.
{¶ 38} R.C. 1.51 states: “If a general provision conflicts with a special or local
provision, they shall be construed, if possible, so that effect is given to both. If the
conflict between the provisions is irreconcilable, the special or local provision prevails as
an exception to the general provision, unless the general provision is the later adoption
and the manifest intent is that the general provision prevails.”
{¶ 39} Both statutes are general provisions.
{¶ 40} R.C. 1.52 provides “(A) If statutes enacted at the same time or different
sessions of the legislature are irreconcilable, the statute latest in date of enactment
prevails.”
{¶ 41} The Ohio Constitution, Article II Section 35 provides for a workers'
compensation system. It states in pertinent part:
{¶ 42} “For the purpose of providing compensation to workmen and their
dependents, for death, injuries or occupational disease, occasioned in the course of
such workmen's employment, laws may be passed establishing a state fund to be created by compulsory contribution thereto by employers, and administered by the
state, determining the terms and conditions upon which payment shall be made
therefrom. Such compensation shall be in lieu of all other rights to compensation, or
damages, for such death, injuries, or occupational disease, and any employer who pays
the premium or compensation provided by law, passed in accordance herewith, shall
not be liable to respond in damages at common law or by statute for such death, injuries
or occupational disease.***”
{¶ 43} In the recent case of Ohio Bureau of Workers’ Compensation v.
McKinley, 130 Ohio St.3d 156, 2011-Ohio-4432, 953 N.E.2d 814, the Ohio Supreme
Court reaffirmed:
{¶ 44} “***In this singular context, a claimant's ability to receive workers'
compensation benefits is not based on any concept of fault, and a claimant's recovery of
those benefits is governed by the provisions of the Workers' Compensation Act. See,
e.g., Holeton v. Crouse Cartage Co. (2001), 92 Ohio St.3d 115, 119, 748 N.E.2d 1111
(workers' compensation laws are a unique social bargain in which employees give up
their common-law remedy in exchange for greater assurance that they will receive
reasonable compensation for a work-related injury, and employers in turn give up
common-law defenses but are protected from unlimited liability); Blankenship v.
Cincinnati Milacron Chems., Inc. (1982), 69 Ohio St.2d 608, 614, 23 O.O.3d 504, 433
N.E.2d 572.***” McKinley at paragraph 26.
{¶ 45} We find the Ohio Constitution, statutory provisions, and case law
mandates that Workers’ Compensation is the exclusive remedy for an employee’s
workplace injury. One of the central purposes of the Workers’ Compensation Act is to avoid involving the courts in the relationship between employer and employee. In Ohio,
there is no such thing as employer negligence, and a tortfeasor cannot raise the
affirmative defense of the empty chair as to an employer for negligent acts.
{¶ 46} We find to include the employer’s negligence in the allocation of fault is
completely inconsistent with the Workers’ Compensation system as structured by the
constitution and the legislature and as construed by the courts.
{¶ 47} However, an employer’s intentional tort is completely outside the purview
of the W.C. system and does not enjoy immunity from liability. Conley v. Brown
Corporation of Waverly, Inc. 82 OS3d 470, 1998-Ohio-194, 696 N.E.2d 1035.
{¶ 48} Worthington argues the Conley case not only allows it to introduce and/or
argue evidence Baker committed an intentional tort, but asserts Romig’s intentional tort
claim removes Baker’s statutory immunity for negligent acts. We do not agree.
{¶ 49} In Conley, an injured employee sued his employer for an intentional tort
and also brought a products liability claim against the manufacturers of a press and
some of its components. The employee and his wife eventually settled with one of the
manufacturers, Rexcon Corporation, and assigned their cause of action against the
employer. Rexcon’s insurer subsequently brought suit on the intentional tort. Relying on
Taylor v. Academy Iron & Metal Co. (1988), 36 Ohio St.3d 149, 522 N.E.2d 464, the
court of appeals found the insurer did not have standing to assert the claim. Taylor held
that only an employee or his legal representative may bring a civil suit against an
employer alleging that the employer committed an intentional tort leading to an
employee's work-related death, disease, or injury. A third-party tortfeasor has no
standing to bring an indemnification claim against an employer, acting in compliance with the Ohio workers' compensation law, for damages suffered by an employee in the
course of or arising out of his employment.
{¶ 50} The Conley court found Taylor created an array of problems, particularly
when an employer intentional tort claim was involved, and concluded where an
employer commits an intentional tort against an employee, the employer does not enjoy
the statutory immunity provided under the Workers’ Compensation Act. The court also
found an assignee of the employee’s claim for an employer’s intentional tort can bring
an action, and also found the insurer had a right for contribution against the employer if
Roxcon is jointly and severally liable with the employer.
{¶ 51} Conley is distinguishable from the case at bar because in Conley,
Roxcon’s insurer stood in the shoes of the employee and asserted the employee’s right
to bring an intentional tort action against the employer. Nothing in Conley removes the
employer’s statutory immunity for negligence actions. Here, Worthington does not claim
it has acquired Romig’s right to bring the intentional tort, and its claim against Baker is
for negligent breach of duty towards Romig, not Worthington. Conley does not strip
Baker of its immunity from liability for negligence towards Romig. It does not hold that
once an intentional tort is pled, the employer is fair game for any cause of action
sounding in negligence, even if, as here, the allegations of intentional tort are
withdrawn.
{¶ 52} Count IV of Worthington’s cross claim against Baker said: “Should
Worthington be found liable to Plaintiff, then Baker was actively and primarily negligent
and otherwise responsible for Plaintiff’s claimed damages and therefore, Worthington is
entitled to and seeks indemnification and/or contribution from Baker.” Among Worthington’s affirmative defenses is Paragraph 83. “Plaintiff’s claims against
Worthington are barred, by the acts of third parties.”
{¶ 53} Romig argues Worthington did not raise the affirmative defense that Baker
should be treated as a negligent nonparty who should occupy the “empty chair” at
defense table. We do not agree. R.C. 2307.23 provides the affirmative defense can be
raised at any time before trial. Even if we find the answer to be insufficient to raise the
defense, the record indicates Baker and Worthington raised the issue at least by March
18, 2009, when Baker filed for summary judgment on the other counts of Worthington’s
cross claim, which referred to the contract between the parties, but Baker did not move
for summary judgment on Count IV.
{¶ 54} Romig eventually dismissed her claim of intentional tort against Baker,
advising the court the settlement amount was reasonable and in good faith because it
was nigh unto impossible that Romig could prove Baker committed an intentional tort
against her decedent. While the trial court never specifically found as a matter of law
there was insufficient proof to send the issue to the jury, it acknowledged the difficulties
in its judgment entry of January 14, 2010. It does not appear thereafter that Worthington
pursued the issue of the intentional tort, and all of its motions and discussions are
couched in terms of introducing evidence of Baker’s negligence.
{¶ 55} Finally, Worthington argues the court should have permitted it to introduce
evidence of the findings OSHA made regarding Baker’s behavior as to decedent. In
fact, the court permitted the jury to hear evidence about the OSHA investigation. Given
that the employer’s negligence was not a legitimate issue for the jury’s consideration,
we find the court did not err in limiting the evidence as it did. {¶ 56} In conclusion, we find the court did not err in finding the statutory immunity
shielded Baker from any assessment of negligence, and we further find Worthington
abandoned the intentional tort issue as an affirmative defense pursuant to R.C.
2307.23.
I
{¶ 57} In its first assignment of error, Worthington argues the trial court
erred in not finding the indemnity clause contained in the transportation contract
between Worthington and Baker supersedes or defeats Baker’s statutory immunity and
requires Baker to defend and indemnify Worthington. The trial court granted summary
judgment on the issue.
{¶ 58} Civ. R. 56 states in pertinent part:
{¶ 59} “Summary judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, written admissions, affidavits, transcripts of
evidence, and written stipulations of fact, if any, timely filed in the action, show that
there is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law. No evidence or stipulation may be considered except as
stated in this rule. A summary judgment shall not be rendered unless it appears from
the evidence or stipulation, and only from the evidence or stipulation, that reasonable
minds can come to but one conclusion and that conclusion is adverse to the party
against whom the motion for summary judgment is made, that party being entitled to
have the evidence or stipulation construed most strongly in the party's favor. A summary
judgment, interlocutory in character, may be rendered on the issue of liability alone
although there is a genuine issue as to the amount of damages.” {¶ 60} A trial court should not enter a summary judgment if it appears a material
fact is genuinely disputed, nor if, construing the allegations most favorably towards the
non-moving party, reasonable minds could draw different conclusions from the
undisputed facts, Houndshell v. American States Insurance Company (1981), 67 Ohio
St. 2d 427, 424 N.E.2d 311. The court may not resolve ambiguities in the evidence
presented, Inland Refuse Transfer Company v. Browning-Ferris Industries of Ohio, Inc.
(1984), 15 Ohio St. 3d 321, 474 N.E.2d 271. A fact is material if it affects the outcome
of the case under the applicable substantive law, Russell v. Interim Personnel, Inc.
(1999), 135 Ohio App. 3d 301, 733 N.E.2d 1186
{¶ 61} When reviewing a trial court’s decision to grant summary judgment, an
appellate court applies the same standard used by the trial court, Smiddy v. The
Wedding Party, Inc. (1987), 30 Ohio St. 3d 35, 506 N.E.2d 212. This means we review
the matter de novo. Doe v. Shaffer, 90 Ohio St.3d 388, 2000-Ohio-186, 738 N.E.2d
1243.
{¶ 62} Baker cites Kendall v. U.S. Dismantling Company (1985), 20 Ohio
St. 3d 61, as authority for the proposition a contractual indemnity clause does not waive
an employer’s Workers’ Compensation immunity and render the employer liable for an
employee’s injuries unless the clause expressly states that the immunity is waived. In
Kendall, the Supreme Court found a general agreement of indemnity with a third party
that does not specifically express the employer’s intent to waive its statutory immunity
under the Workers’ Compensation Act is ineffective. To be enforceable, the agreement
must contain an express and specific waiver of immunity. Id., paragraph two of the
syllabus. {¶ 63} Worthington cites Conley, supra, as authority for the proposition
once Romig alleged an intentional tort, the Workers’ Compensation immunity was no
longer available. For the reasons stated supra, we find Worthington’s reliance on
Conley is flawed.
{¶ 64} The first assignment of error is overruled.
II & III
{¶ 65} In its second assignment of error, Worthington argues the trial court
should have granted its motion for directed verdict. In its third assignment of error,
Worthington argues the court should have granted its motion for judgment
notwithstanding the verdict. These two assignments of error are predicated on United
States v. Savage Truck Lines (4th Cir. 1953), 209 F. 2d 442.
{¶ 66} Civ. R. 50 states:
{¶ 67} “When a motion for a directed verdict has been properly made, and
the trial court, after construing the evidence most strongly in favor of a party against
whom the motion is directed, finds that upon any determinative issue reasonable minds
could come to but one conclusion upon the evidence submitted and that conclusion is
adverse to each party, the court shall sustain the motion and direct a verdict for the
moving party as to that issue.”
{¶ 68} The reasonable minds test requires a court to determine whether
there is any evidence of substantial probative value in support of the party’s claim.
Ruta v. Breckenridge-Remy Company (1982), 69 Ohio St. 2d 66, 69, 430 N.E. 2d 395.
{¶ 69} The test a trial court applies in ruling on a motion for judgment not
withstanding a verdict is the same as that applied on a motion for directed verdict. Possen v. A.B.C. Motor Court Hotel, Inc. (1976), 45 Ohio St. 2d 271, 275, 344 N.E. 2d
334.
{¶ 70} Our standard of reviewing a trial court’s decision on a motion for
directed verdict and a motion for a judgment notwithstanding the verdict are the same.
We review the motions de novo because they present questions of law, not factual
issues. Nationwide Mutual Fire Insurance Company v. Guman Brothers Farm, 73 Ohio
St. 3d 107, 108, 1995-Ohio-214, 652 N.E. 2d 684.
{¶ 71} In Savage, supra, the court found that a carrier has the primary
duty for safely loading goods onto its truck, but when a shipper assumes responsibility
for loading the goods, it becomes liable for damages resulting from any defects in its
loading that are latent, concealed, and not discernable to the carrier by ordinary
observation. Id. at 445.
{¶ 72} Romig directs our attention to Spence v. ESAB Group, Inc. (C.A. 3,
2010), 63 F. 3d 212, where the Sixth Circuit Court of Appeals cited the Restatement of
the Law of Torts, and held one who undertakes to render services is subject to liability
to the other person for physical harm resulting from his failure to exercise reasonable
care in performing the undertaking if the failure to exercise such care increases the risk
of harm, or if the harm is suffered because of the other’s reliance on the undertaking.
{¶ 73} Worthington and its amicus curiae, Transportation & Logistics, Inc.,
argue decedent had a duty to inspect the cargo, and, if and when he did so, the
overhang of the fourth cradle was clearly visible to him. Amicus argues the Federal
Motor Carriers Regulations place the ultimate obligation to secure and inspect the cargo
on the driver. The Regulations require the driver to determine whether the cargo was properly distributed and adequately secured before driving the commercial motor
vehicle, and to inspect the cargo and devices used to secure the cargo a second time
within the first 50 miles after beginning a trip so that the driver can adjust the cargo or
the load securing devices as necessary. Worthington and its amicus argue the
Regulations shift the burden from the shipper back to the driver as the person ultimately
responsible for the security of the load he transports.
{¶ 74} Romig replies even if a carrier’s agent or driver inspected the load
and signed a bill of lading acknowledging the shipment was proper, nevertheless, if the
loading defect is latent and not one the driver could be reasonably expected to observe
during his inspection, then the shipper is not exonerated from its negligence in loading.
In Georgia Kraft Company v. Termination Transport Company (E.D.Tennessee 1972),
343 F. Sup. 1240, the court found the carrier has a duty to make a reasonable
inspection and to observe and correct the defects or insecurities in loading that can be
discovered during the course of a reasonable inspection.
{¶ 75} While the condition of the load may be readily apparent, the danger
presented by the condition may not be obvious through ordinary observation. Questions
regarding whether a defect is latent or could have been discerned by the carrier’s
ordinary observation are questions for the jury.
{¶ 76} At trial, the parties presented extensive evidence and argument
regarding what caused the fourth cradle to shift, and whether decedent should have
understood the hazard. The jury was the ultimate finder of fact, and this court cannot
substitute our judgment if there is evidence in the record that supports the jury’s conclusions. C.E. Morris v. Foley Construction Co.(1978), 54 Ohio St.2d 279, 376
N.E.2d 578
{¶ 77} The second and third assignments of error are overruled.
{¶ 78} For the foregoing reasons, the judgment of the Court of Common
Pleas of Tuscarawas County, Ohio, is affirmed.
By Gwin, P.J., and
Wise, J., concur
Edwards, J., dissents
_________________________________ HON. W. SCOTT GWIN
_________________________________ HON. JOHN W. WISE
_________________________________ HON. JULIE A. EDWARDS EDWARDS, J., DISSENTING OPINION
{¶79} I respectfully dissent from the majority’s disposition of the fourth
assignment of error.
{¶80} The majority notes in paragraph 30 that the goal of the “empty chair”
doctrine is to ensure that no defendant pays more than his or her fair share of the
plaintiff’s damages, and the jury or trial court must determine the percentage of tortious
conduct attributable to each person or entity, regardless of whether that person or entity
is named as a party defendant in the action.
{¶81} R.C. 2703.23 contains no exceptions for an employer or any other
potential non-party who enjoys immunity from liability. I would find that despite the fact
that Baker is immune from liability for negligence pursuant to the Workers’
Compensation Act, the jury still could assign a portion of the tortious conduct to Baker
pursuant to the empty chair doctrine. The ruling of the majority does not ensure that no
defendant pays more than his or her fair share of the plaintiff’s damages; in fact, this
decision forces Worthington to pay its own share plus Baker’s share by not allowing
Worthington to present any evidence of Baker’s tortious conduct that contributed to the
plaintiff’s injuries.
{¶82} I would find that the trial court erred in finding Worthington could not
introduce evidence that Baker’s negligence was a proximate cause of the death of the
decedent and erred in not permitting Worthington to raise the empty chair defense. I
would sustain the fourth assignment of error and remand for new trial.
____________________________________
Judge Julie A. Edwards IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
SANDRA ROMIG : : Plaintiff-Appellee : : : -vs- : JUDGMENT ENTRY : BAKER HI-WAY EXPRESS, INC., ET AL : : : Defendant-Appellee : CASE NO. 2011AP-02-0008
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of
the Court of Common Pleas of Tuscarawas County, Ohio, is affirmed. Costs to
appellant.
_________________________________ HON. JULIE A. EDWARDS