      RECOMMENDED FOR FULL-TEXT PUBLICATION
           Pursuant to Sixth Circuit Rule 206
   ELECTRONIC CITATION: 2000 FED App. 0200P (6th Cir.)
               File Name: 00a0200p.06


UNITED STATES COURT OF APPEALS
             FOR THE SIXTH CIRCUIT
               _________________


                                ;
                                 
ERIK CONTE,
                                 
          Plaintiff-Appellee,
                                 
                                 
                                     Nos. 98-4315;
          v.
                                 
                                     99-4137
                                  >
GENERAL HOUSEWARES               
                                 
                  Defendant, 
CORPORATION,

                                 
                                 
                                 
DAYTON POWER & LIGHT
COMPANY,                         
       Defendant-Appellant. 
                                1
     Appeal from the United States District Court
     for the Southern District of Ohio at Dayton.
    No. 95-00451—Susan J. Dlott, District Judge.
               Argued: March 16, 2000
           Decided and Filed: June 14, 2000
Before: NORRIS, MOORE, and COLE, Circuit Judges.




                           1
2    Conte v. General                Nos. 98-4315; 99-4137      Nos. 98-4315; 99-4137                Conte v. General        19
     Housewares Corp., et al.                                                                  Housewares Corp., et al.

                   _________________                            merely because its co-obligor settles with the plaintiff after
                                                                the verdict. Although DP&L cites several cases that
                        COUNSEL                                 purportedly hold to the contrary, Conte is correct in pointing
                                                                out that those cases either involved preverdict settlements or
ARGUED: Scott R. Thomas, FURNIER & THOMAS,                      verdicts that legitimately apportioned damages among
Cincinnati, Ohio, for Appellant. Thomas R. Murphy,              defendant tortfeasors. Those cases are therefore not apposite.
ROCHE, HEIFETZ, MURPHY & WHOLLEY, Boston,                       For these reasons, we hold that the district court did not abuse
Massachusetts, for Appellee. ON BRIEF: Scott R. Thomas,         its discretion in refusing to relieve DP&L from having to pay
Robert R. Furnier, Norman J. Frankowski II, FURNIER &           prejudgment interest on the entire judgment.
THOMAS, Cincinnati, Ohio, for Appellant. Thomas R.
Murphy, ROCHE, HEIFETZ, MURPHY & WHOLLEY,                         Additionally, DP&L claims that it is entitled to a reduction
Boston, Massachusetts, Steven B. Ayers, CRABBE,                 of the judgment against it based on GHC’s settlement with
BROWN, JONES, POTTS & SCHMIDT, Columbus, Ohio,                  Conte, in partial satisfaction of the judgment, for $3.675
for Appellee.                                                   million. Given our holding that DP&L is required to pay
                                                                prejudgment interest, the parties do not appear to disagree
                   _________________                            about the amount for which DP&L remains liable: the entire
                                                                judgment of $3.5 million, plus the prejudgment interest on
                       OPINION                                  that amount ($958,904.10), minus the $3.675 million paid by
                   _________________                            GHC, plus the appropriate postjudgment interest. Since we
                                                                are remanding the case to the district court for the calculation
  KAREN NELSON MOORE, Circuit Judge. Plaintiff-                 of postjudgment interest, we suggest that the district judge
appellee Erik Conte successfully sued defendant General         amend the judgment to reflect the payment of $3.675 million
Housewares Corp. (“GHC”) and defendant-appellant Dayton         by GHC and the revised amount of DP&L’s liability,
Power and Light Co. (“DP&L”) in connection with severe          consistent with this opinion.
personal injuries that he received as a result of a large
electrical shock and obtained a verdict of $3.5 million.                            III. CONCLUSION
DP&L now appeals several of the district court’s rulings with
respect to that verdict and with respect to the award of           For the foregoing reasons, we AFFIRM the district court’s
prejudgment interest against DP&L. Because there was no         judgment and REMAND for recalculation of DP&L’s
error in the district court’s decisions to award prejudgment    liability in light of the accrued postjudgment interest and the
interest against DP&L and to deny DP&L’s motions for            partial satisfaction of the judgment by GHC.
judgment as a matter of law, a new trial, and relief from the
award of prejudgment interest, we AFFIRM those rulings of
the district court, and we REMAND for recalculation of
DP&L’s liability in light of the partial satisfaction of the
judgment by GHC and the accrued postjudgment interest.
18       Conte v. General                  Nos. 98-4315; 99-4137          Nos. 98-4315; 99-4137                   Conte v. General             3
         Housewares Corp., et al.                                                                           Housewares Corp., et al.

D. Motion for Relief from the Judgment                                                          I. BACKGROUND
  Applying federal law, this court reviews for an abuse of                  Erik Conte, an employee of Kessler Tank Co., was sent,
discretion the district court’s decision to grant or deny a Rule          along with two other Kessler employees, to paint an elevated
60(b) motion in a diversity case. See Davis v. Jellico                    water tank on the premises of General Housewares Corp. in
Community Hosp. Inc., 912 F.2d 129, 132-33 (6th Cir. 1990).               Sidney, Ohio on June 10, 1995. The water tank was
DP&L contends that the district court abused its discretion in            surrounded by high-voltage electrical wires, some of which
denying DP&L’s motion for relief from the judgment under                  had been de-energized by a DP&L employee at the request of
Federal Rule of Civil Procedure 60(b)(5) on the ground that               GHC. Conte was severely injured when the extension pole he
the judgment has been partially satisfied.                                was using came into contact with one or more of the
                                                                          energized power lines, causing him to receive a large
   First, DP&L argues that it should now be relieved of                   electrical shock.
liability for the prejudgment interest, because, due to GHC’s
payment of the full amount of the underlying $3.5 million                    The facts surrounding this accident were disputed. It seems
judgment, there is no longer a judgment on which                          that GHC’s maintenance manager, Don Doll, contacted
prejudgment interest may be based. Although neither party                 Dayton Power & Light to inquire about having some power
has cited published Ohio cases that are directly on point, as a           lines de-energized in preparation for the painting. The DP&L
matter of logic it is clear that a prejudgment interest award             employees who initially inspected the GHC site
cannot be eradicated by a postjudgment settlement for the                 recommended a total power outage, but a GHC representative
amount of the jury verdict, since the prejudgment interest was            told Mike Nowicki, a supervisor at DP&L, that GHC was not
merged with the amount of the jury verdict to form the total              willing to undergo a total outage, because it needed to have
judgment. See Nakoff v. Fairview Gen. Hosp., 694 N.E.2d                   enough power to run the computers and other devices in its
107, 108 (Ohio Ct. App.), appeal not allowed, 680 N.E.2d                  factory building. All the parties agree on these facts, but they
1022 (Ohio 1997). It would therefore be inaccurate to state               do not agree on what happened next. There was conflicting
that the judgment has been fully satisfied by GHC’s payment               testimony at trial concerning which power lines were to be
of $3.675 million   after the prejudgment interest was awarded            left energized and who made that decision. Ultimately, Mike
against DP&L.7 Moreover, it is irrelevant for the purposes of             Large, a technician from DP&L, appeared at GHC on June 10,
prejudgment interest that the amount of the verdict is paid               1995, and de-energized only those secondary wires attached
subsequent to the verdict, because prejudgment interest is                to the legs of the water tank, leaving   the primaries and the
intended to compensate the plaintiff for the delay between the            other secondaries energized.1 The Kessler employees
time the cause of action arose and the verdict. See, e.g.,                proceeded to paint the tank and, while suspended from a
Woods v. Farmers Ins. of Columbus, Inc., 666 N.E.2d 283,                  botswain chair, Erik Conte accidentally allowed his sixteen-
286 (Ohio Ct. App. 1995). Therefore, a defendant is not                   foot extension pole to make contact with one or more of the
relieved of the requirement to pay prejudgment interest

     7                                                                        1
      Indeed, DP&L’s argument, carried to its logical conclusion, would        As explained by Nowicki, the difference between primary lines and
appear to allow a party always to avoid paying prejudgment interest       secondary lines is that “primaries” are generally uninsulated and carry
merely by paying the underlying judgment in full and then claiming that   between 7200 and 12,500 volts of electricity, and “secondaries” are
there was no longer a judgment on which to pay interest.                  generally insulated and carry less than 600 volts.
4       Conte v. General                    Nos. 98-4315; 99-4137           Nos. 98-4315; 99-4137               Conte v. General        17
        Housewares Corp., et al.                                                                          Housewares Corp., et al.

primary lines, which caused him severe burns and                            attributable to the plaintiff, then joint and several liability
disfigurement.                                                              would lie.”). The jury was therefore not entitled to apportion
                                                                            the damages between the two tortfeasors. See George B.
   Conte filed suit against GHC and DP&L in federal court on                Scrambling Co. v. Tennant Drug Co., 158 N.E. 282, 285-86
November 29, 1995,       for negligence, misrepresentation, and             (Ohio Ct. App. 1927); Cincinnati Traction Co. v. Cochran,
breach of contract.2 He subsequently amended his complaint                  153 N.E. 116, 116-17 (Ohio Ct. App. 1923). The jury’s
to omit the claims of misrepresentation and breach of contract              answers to the special interrogatories, which found both
against DP&L. The defendants moved for summary                              DP&L and GHC negligent and Conte not contributorily
judgment. The magistrate judge recommended granting the                     negligent — thereby invoking joint and several liability under
summary judgment motions, finding in particular that Conte’s                Ohio law — are inconsistent with the general verdict, which
injuries were not foreseeable by DP&L, since DP&L did not                   apportioned fault between DP&L and GHC. Therefore, the
know that the Kessler workers would use a long extension                    district court was entitled under Rule 49(b) to enter the
pole to paint the tank; furthermore, the magistrate judge found             judgment in accordance with the interrogatory answers and
that DP&L exercised ordinary care in de-energizing the power                notwithstanding the verdict.
lines. The district court denied the summary judgment
motions, however, finding instead that there were material                     DP&L argues that the interrogatory answers and the general
questions of fact as to who determined which lines were to be               verdict were consistent when construed in light of the district
de-energized and whether the process of de-energizing was                   court’s “proximate cause” charge, which instructed the jury
performed with due care. The case went to trial, and Conte                  that “[e]ach defendant must respond for only those losses and
received a $3.5 million verdict. On September 11, 1998, the                 injuries which are the direct and proximate result of its
district court granted Conte’s motion for prejudgment interest              negligent act.” J.A. at 2239 (Jury Charge). This argument is
in the amount of $958,904.10 against DP&L only, finding that                without merit. The requirement of proximate causation does
DP&L had failed to negotiate in good faith with Conte. The                  not eliminate joint and several liability: joint and several
jury had erred, however, by apportioning liability for the                  liability implies that the joint acts of both defendants
verdict between the defendants ($3 million to GHC and                       proximately caused the plaintiff’s injuries. See 18 OHIO JUR.
$500,000 to DP&L) where the defendants were jointly and                     3d Contribution, Indemnity, and Subrogation §§ 83, 84
severally liable under Ohio law. The district court, with the               (1980). Therefore, under joint and several liability, both
agreement of counsel for all sides, therefore amended the                   defendants are held responsible for all of the plaintiff’s
judgment on October 14, 1998, to reflect the joint and several              injuries, because their joint acts were the proximate cause of
liability of GHC and DP&L for $3.5 million and the                          all of those injuries.
prejudgment interest award against DP&L. DP&L then filed
a motion to amend the amended judgment entry, requesting                      For these reasons, we hold that the district court correctly
that it state that prejudgment interest against DP&L would be               amended the judgment under Rule 49(b), and therefore that it
                                                                            did not abuse its discretion in refusing to grant the
                                                                            defendant’s motion for a new trial on this basis.
    2
     Since Conte is a citizen of Massachusetts, GHC is a Delaware
corporation with its principal place of business in Ohio, DP&L is an Ohio
corporation with its principal place of business in Ohio, and the amount
in controversy was jurisdictionally adequate, the district court properly
assumed jurisdiction under 28 U.S.C. § 1332.
16    Conte v. General                       Nos. 98-4315; 99-4137       Nos. 98-4315; 99-4137                Conte v. General         5
      Housewares Corp., et al.                                                                          Housewares Corp., et al.

interrogatory responses, finding that both DP&L and GHC                  calculated only after contribution rights between DP&L and
were negligent and that Conte was not contributorily                     GHC had been determined, or, alternatively, that the
negligent, were not inconsistent with the “general verdict”              prejudgment interest award against DP&L be calculated only
forms, which found DP&L liable for $500,000 and GHC                      on the amount of $500,000. The district court then denied the
liable for $3 million. Therefore, it claims, the district court          motion to amend the amended judgment, and DP&L
did not have the authority under Federal Rule of Civil                   appealed.
Procedure 49(b) to correct the judgment entry. The district
court found that the answers were inconsistent with the                    Meanwhile, on September 28, 1998, GHC settled with
general verdict and declined to grant DP&L’s motion for a                Conte for $3.675 million. DP&L therefore filed a motion
new trial.                                                               pursuant to Federal Rule of Civil Procedure 60(b)(5) for relief
                                                                         from the judgment to the extent of the settlement amount.
  In a diversity case, federal law governs most issues                   The district court denied the order as superfluous. DP&L
surrounding the utilization of special interrogatories and the           then appealed that order.
problem of inconsistent answers, including the effect of
inconsistency between a general verdict and one or more                    On appeal, DP&L makes several claims of error. First, it
special interrogatories. See Jewell v. Holzer Hosp. Found.,              argues that the district court abused its discretion in granting
Inc., 899 F.2d 1507, 1510 (6th Cir. 1990). However, federal              prejudgment interest to Conte. It also claims that the district
courts look to state law to determine whether a verdict is               court erred in denying DP&L’s motion for judgment as a
inconsistent. See Tipton v. Michelin Tire Co., 101 F.3d 1145,            matter of law and abused its discretion in denying DP&L’s
1148 n.4 (6th Cir. 1996).                                                motion for a new trial. Finally, DP&L contends that the
                                                                         district court’s denial of DP&L’s motion for relief from the
  DP&L’s objection to the amended judgment is without                    judgment was in error.
merit. As the district court correctly found, DP&L and GHC
were jointly and severally liable as a matter of Ohio law,                                      II. ANALYSIS
because they were joint tortfeasors, and Conte was not
contributorily negligent. See OHIO REV. CODE ANN.                        A. Prejudgment Interest
§ 2315.19; Eberly v. A-P Controls, Inc., 572 N.E.2d 633, 638-
39 (Ohio 1991) (“[S]everal liability [is] triggered only upon              In a diversity case, state law governs the district court’s
a finding of negligence on the part of the plaintiff. . . . If a         decision whether to award prejudgment interest, see Diggs v.
jury return[s] answers to interrogatories finding no negligence          Pepsi-Cola Metro. Bottling Co., 861 F.2d 914, 924 (6th Cir.
                                                                         1988), which is reviewed by this court for an abuse of
                                                                         discretion, see Stallworth v. City of Cleveland, 893 F.2d 830,
                                                                         836 (6th Cir. 1990) (applying Ohio law). The Ohio courts
    more issues of fact the decision of which is necessary to a          have defined an abuse of discretion, in the context of
    verdict. . . . When the answers are consistent with each other but   prejudgment interest awards, as a result “so palpably and
    one or more is inconsistent with the general verdict, judgment       grossly violative of fact and logic that it evidences not the
    may be entered pursuant to Rule 58 in accordance with the            exercise of will but perversity of will, not the exercise of
    answers, notwithstanding the general verdict, or the court may
    return the jury for further consideration of its answers and         judgment but defiance thereof, not the exercise of reason but
    verdict or may order a new trial.                                    rather of passion or bias.” State v. Jenkins, 473 N.E.2d 264,
FED. R. CIV. P. 49(b).                                                   313 (Ohio 1984) (quoting Spalding v. Spalding, 94 N.W.2d
6      Conte v. General                 Nos. 98-4315; 99-4137        Nos. 98-4315; 99-4137                   Conte v. General              15
       Housewares Corp., et al.                                                                        Housewares Corp., et al.

810, 811-12 (Mich. 1959)), cert. denied, 473 U.S. 1032               used to impeach Fralick’s testimony at trial that he did not
(1985).                                                              know that the primaries were energized.
  Under Ohio law, a plaintiff is entitled to prejudgment                Applying federal law to determine the admissibility of
interest if the court determines “that the party required to pay     Doll’s testimony, we conclude that the evidence was
the money failed to make a good faith effort to settle the case      erroneously excluded. See Barnes v. Owens-Corning
and that the party to whom the money is to be paid did not fail      Fiberglas Corp., 201 F.3d 815, 829 (6th Cir. 2000). Because
to make a good faith effort to settle the case.” OHIO REV.           the statements were offered to impeach Fralick’s trial
CODE ANN. § 1343.03(C) (Banks-Baldwin 1994). The Ohio                testimony and not for the truth of the matter asserted, they
Supreme Court has held that a party has not failed to make a         were not hearsay. See FED. R. EVID. 801(c); United States v.
good-faith effort to settle under the statute if that party has      Causey, 834 F.2d 1277, 1282-83 (6th Cir. 1987), cert. denied,
                                                                     486 U.S. 1034 (1988). Nonetheless, DP&L has made no
    (1) fully cooperated in discovery proceedings, (2)               showing that this error was so prejudicial as to require a new
    rationally evaluated his risks and potential liability, (3)      trial. As Conte pointed out, Large testified that he told
    not attempted to unnecessarily delay any of the                  Fralick that the lines were hot; therefore, some evidence to
    proceedings, and (4) made a good faith monetary                  this effect was before the jury. DP&L argues that this
    settlement offer or responded in good faith to an offer          evidence would have helped to illuminate the question of the
    from the other party. If a party has a good faith,               painters’ reliance on DP&L’s undertaking to make their
    objectively reasonable belief that he has no liability, he       workplace safe: if the jury concluded that painters knew the
    need not make a monetary settlement offer.                       lines were energized, then they could not have found that the
                                                                     painters relied on DP&L’s conduct in using the extension
Kalain v. Smith, 495 N.E.2d 572 (Ohio 1986), syllabus. In            poles in the proximity of the primary wires. This argument
Moskovitz v. Mt. Sinai Medical Center, 635 N.E.2d 331                has two flaws. First, Doll’s testimony would not, in any case,
(Ohio), cert. denied, 513 U.S. 1059 (1994), the Supreme              have been admissible as substantive evidence on this issue,
Court of Ohio noted that the last sentence “should be strictly       but merely as a way of impeaching Fralick’s testimony.
construed so as to carry out the purposes of R.C. 1343.03(C).”       Second, the proffered evidence may help to show that Fralick
Id. at 348. Although the burden of proof is on the party             did not rely on DP&L, but it does not demonstrate anything
seeking the prejudgment interest, that burden does not require       about Conte’s reliance. Therefore, we hold that the district
showing bad faith by the other party, but rather only a lack of      court did not abuse its discretion in refusing to grant a new
good faith. See id.                                                  trial based on the erroneous exclusion of this evidence.
   The district court held that DP&L failed to make a good-            Finally, DP&L argues that it was entitled to a new trial
faith effort to settle, because it did not rationally evaluate its   because it was prejudiced by the district court’s erroneous
risks and potential liability, nor did it make a good-faith          amendment of the   judgment under Federal Rule of Civil
settlement offer or respond in good faith to Conte’s offer.          Procedure 49(b).6 DP&L claimed that the jury’s special
DP&L claims that the district court abused its discretion,
because DP&L maintained a good-faith, reasonable belief that
it was not liable for Conte’s injuries throughout this litigation.      6
                                                                         Rule 49(b) states, in pertinent part:
DP&L points first to the magistrate judge’s recommendation              The court may submit to the jury, together with the appropriate
                                                                        forms for a general verdict, written interrogatories upon one or
14   Conte v. General                  Nos. 98-4315; 99-4137       Nos. 98-4315; 99-4137                     Conte v. General              7
     Housewares Corp., et al.                                                                          Housewares Corp., et al.

Standard Fire Ins. Co., 936 F.2d 1474, 1487 & n.20 (6th Cir.       to grant summary judgment in DP&L’s favor as evidence of
1991). Finding an abuse of discretion in this context requires     the reasonableness of DP&L’s belief in its own lack of
a “definite and firm conviction . . . that the court below         liability. Furthermore, DP&L claims that, contrary to the
committed a clear error of judgment in the conclusion it           district court’s findings, DP&L personnel constantly
reached upon a weighing of the relevant factors.” Holmes v.        discussed the possibility and desirability of settlement with
City of Massillon, 78 F.3d 1041, 1045 (6th Cir.) (quoting          DP&L’s counsel. Finally, DP&L disputes the district court’s
Balani v. INS, 669 F.2d 1157, 1160 (6th Cir. 1982)), cert.         finding that DP&L believed there was more than a fifty
denied, 519 U.S. 935 (1996). Generally, a court may grant a        percent chance that a jury would award Conte a verdict of up
new trial under Rule 59 if the verdict is against the weight of    to $500,000, which was based on the statement of DP&L’s
the evidence, if the damages award is excessive, or if the trial   counsel that he thought that “[t]he likelihood of Plaintiff
was influenced by prejudice or bias, or otherwise unfair to the    recovering an award in excess of $500,000.00 from DP&L
moving party. See id. at 1045-46. When ruling on a new trial       [was] less than 50%.” J.A. at 2505 (Thomas Dep.).
motion claiming that the verdict was against the weight of the
evidence, the district court “may compare the opposing proofs         We hold that the district court did not abuse its discretion
and weigh the evidence.” Toth v. Yoder Co., 749 F.2d 1190,         in awarding prejudgment interest to Conte. DP&L does not
1197 (6th Cir. 1984). However, “while the district judge has       dispute that it never made a real settlement   offer to Conte,
a duty to intervene in appropriate cases, the jury’s verdict       despite Conte’s efforts to negotiate.3 Furthermore, although
should be accepted if it is one which could reasonably have        there is evidence that DP&L’s counsel, Scott Thomas, made
been reached.” Id. (quoting Bruner v. Dunaway, 684 F.2d            some attempts to evaluate DP&L’s potential liability in this
422 (6th Cir. 1982), cert. denied, 459 U.S. 1171 (1983)).          action and that he kept in contact with DP&L management
                                                                   about the possibility of settlement, the district court did not
  In arguing that the verdict was against the weight of the        abuse its discretion in finding that DP&L nonetheless did not
evidence, DP&L relies on the same arguments that it                rationally evaluate its risk. Thomas’s deposition indicates
employed in contending that the district court should have         that there was only one written report generated by the law
granted its motion for judgment as a matter of law. For the        firm and transmitted to DP&L regarding the possibility of
reasons discussed above in Part B.2., we hold that the jury’s      settlement in this case. Similarly, Paul Cynkar, the
verdict in this case is one that could reasonably have been        Supervisor of Claims Administration at DP&L, testified that
reached, and therefore that the district court did not err in      DP&L did not make any written evaluations of the case based
denying DP&L’s motion for a new trial on this ground.              on Thomas’s oral communications. Thomas’s testimony also
                                                                   demonstrates minimal and unrigorous efforts on his part to
   DP&L also argues that the district court should have
granted it a new trial, because it was prejudiced by the
erroneous exclusion of certain evidence. In particular, DP&L           3
attempted to have Don Doll testify that Stan Fralick (one of             The only act on the part of DP&L that could be characterized as a
the Kessler painters) told Doll after the accident that he knew    “settlement” was its offer of $3.00 to Conte on the day prior to trial. As
“the wires were hot, but not that hot.” The district court         DP&L explains, however, this “offer” was part of a scheme to convince
                                                                   Conte to dismiss DP&L from the case: DP&L explained to Conte that it
refused to admit this testimony as hearsay. DP&L argues that       would be to Conte’s advantage to have DP&L out of the case for a
this testimony was admissible under Federal Rule of Evidence       number of reasons – including that DP&L intended to employ “kamikaze”
613(b) as extrinsic evidence of a prior inconsistent statement,    and “scorched earth” tactics and that DP&L was more prepared than GHC
                                                                   and would bolster GHC’s defense.
8     Conte v. General                 Nos. 98-4315; 99-4137        Nos. 98-4315; 99-4137               Conte v. General        13
      Housewares Corp., et al.                                                                    Housewares Corp., et al.

determine the likely verdict in this case. Cf. Loder v. Burger,     could find that DP&L owed a duty to Conte, regardless of the
681 N.E.2d 1357, 1362-63 (Ohio Ct. App. 1996) (noting that          fact that DP&L did not own the power lines or have the right
a claims adjuster’s decision to rely solely on her own              to de-energize them without GHC’s permission.
judgment as to the value of the case, without seeking outside
opinions, was some evidence of a failure rationally to evaluate        Having determined that DP&L did owe a duty to Conte, we
risk). Given this evidence, we cannot conclude that the             have no difficulty in concluding that the jury could reasonably
district court’s decision was so unreasonable, illogical, or        find that that duty included de-energizing the primary wires,
arbitrary as to constitute an abuse of discretion.                  and that DP&L exhibited negligence with respect to that duty.
                                                                    Based on the testimony of Nowicki, Large, and William
   DP&L maintains that it reasonably believed throughout the        Hershfeld, a maintenance supervisor at GHC, the jury could
litigation that it could not be held liable, because it had never   have concluded that DP&L had explicitly agreed to de-
undertaken a duty to de-energize the primary lines, and             energize the primary lines; or it could have found that DP&L
because it did not own those lines and therefore was not            agreed to de-energize those lines that had to be de-energized
authorized to de-energize them unless GHC so instructed it.         in order to render the workplace safe; or it could have found
Those defenses were simply no longer valid, however, in light       that DP&L undertook together with GHC to decide which
of the district court’s rulings, in denying DP&L’s motion for       lines should be de-energized. If it found any of those duties
summary judgment, that DP&L had undertaken a duty (the              to be included within the scope of DP&L’s undertaking, the
scope of which was unclear), that there was an issue of fact as     jury clearly could have found that DP&L performed
to who had decided which lines would be de-energized, and           negligently by only de-energizing — or by only agreeing to
that DP&L’s lack of ownership of the power lines was not            de-energize — the secondary lines attached to the legs of the
dispositive. Therefore, DP&L could not maintain a                   tank. Therefore, the district court did not err in denying
reasonable belief in its own nonliability on the theory it          DP&L’s motion for judgment as a matter of law.
describes. See id. at 1361 (holding that the defendants’
reliance on “faulty defenses” could not constitute a good faith,    C. Motion for a New Trial
objectively reasonable belief that they were not liable).
                                                                      DP&L claims that the district court should have granted its
   Furthermore, DP&L’s argument that it could have had a            motion for a new trial under Federal Rule of Civil Procedure
reasonable belief that it was not liable because the factual        59. DP&L contends that it was entitled to a new trial for
issues were strongly disputed, see Cooper v. Metal Sales            three reasons: first, the verdict was contrary to the weight of
Manufacturing Corp., 660 N.E.2d 1245, 1255-56 (Ohio Ct.             the evidence; second, the district court erred in excluding
App.), appeal not allowed, 655 N.E.2d 741 (Ohio 1995);              some of DP&L’s evidence as hearsay; and third, the district
Worrell v. Multipress, Inc., 543 N.E.2d 1277, 1285 (Ohio            court incorrectly modified the jury’s verdict under Federal
1989), does not carry the day. The courts in Worrell and            Rule of Civil Procedure 49(b). All of these claims are
Cooper merely held that the trial court did not abuse its           without merit.
discretion in refusing prejudgment interest where the factual
issues were hotly disputed; they did not hold that it was an          In a diversity case, federal law governs the district court’s
abuse of discretion to grant prejudgment interest in those          decision whether to grant a new trial on the basis of the
situations. See Cooper, 660 N.E.2d at 1255-56; Worrell, 543         weight of the evidence, which is reviewed by this court for an
N.E.2d at 1285. Moreover, the Ohio Supreme Court has also           abuse of discretion. See J.C. Wyckoff & Assocs., Inc. v.
12       Conte v. General                    Nos. 98-4315; 99-4137           Nos. 98-4315; 99-4137                       Conte v. General                 9
         Housewares Corp., et al.                                                                                  Housewares Corp., et al.

to its customer to exercise reasonable care when it elected to               stated that conflicting evidence can be a factor weighing in
respond to a customer’s call for emergency assistance”).5                    favor of a grant of prejudgment interest. See Moskovitz, 635
                                                                             N.E.2d at 351-352. Thus, the mere existence of factual
   It is undisputed in this case that DP&L undertook to aid                  conflicts is of little aid to DP&L’s case.
GHC in making its workplace safe, and it is undisputed that
Conte relied on the joint actions of GHC and DP&L when                          DP&L is correct that the magistrate judge’s
performing his job of painting the water tower. In order to                  recommendation in its favor is some evidence that DP&L
show reliance under § 323(b), the Ohio Court of Appeals has                  could have had a reasonable, good-faith belief that it was not
held, the plaintiff must show “actual or affirmative reliance,               liable. However, DP&L was not entitled to rely on this initial
i.e., reliance ‘based on specific actions or representations                 belief throughout the litigation, especially since subsequent
which cause the persons to forego other alternatives of                      events should have undermined that belief. Cf. id. at 351 (“If
protecting themselves.’” Wissel, 605 N.E.2d at 465 (citation                 [the defendant] ever had a good faith, objectively reasonable
omitted). The fact that the Kessler employees waited for the                 belief that he had no liability, the fact that the ‘arbitration’
DP&L worker to de-energize the power lines before                            panel unanimously found against [him] should have apprised
beginning their work serves as evidence that they relied on                  him that a finding of liability at trial was possible, if not
DP&L’s and GHC’s efforts to render the workplace safe and                    probable.”). In the cases cited by DP&L for the proposition
that they would not have begun painting if they believed that                that the magistrate judge’s recommendation demonstrates its
there was a possibility of electrical shock. Exactly what                    good faith, there were no subsequent events that undermined
DP&L undertook to do to render the GHC workplace safe is                     the defendant’s belief in its  lack of liability, and therefore
less clear, however; but the scope of the duty undertaken by                 those cases are inapposite.4
DP&L was for the jury to determine. See Peyer v. Ohio
Water Serv. Co., 720 N.E.2d 195, 200 (Ohio Ct. App. 1998);                      DP&L is also correct that, as a matter of logic, its counsel’s
Detrick v. Columbia Sussex Corp., 629 N.E.2d 1081, 1082                      statement that he believed that there was less than a fifty
(Ohio Ct. App. 1993).                                                        percent chance that DP&L would be held liable for more than
                                                                             $500,000 does not mean that he therefore believed that there
  Furthermore, the fact that DP&L did not own or exercise                    was more than a fifty percent chance that it would be held
control over GHC’s power lines does not affect the existence                 liable for an amount up to $500,000. Nonetheless, in light of
of DP&L’s duty. A utility may still owe a duty to guard the                  the substantial evidence supporting the district court’s
safety of customers and others, regardless of who actually                   decision, this minor error in the court’s argumentation is not
owns or controls the power lines. See Fortman v. Dayton
Power & Light Co., 609 N.E.2d 1296, 1299-1300 (Ohio Ct.
App. 1992). Therefore, if the jury found that DP&L had                           4
                                                                                   One exception is the unpublished case Barna v. Randall Park
undertaken a duty to make GHC’s workplace safe by de-                        Associates, No. 66751, 1994 WL 716525 (Ohio Ct. App. Dec. 22, 1994),
energizing the primaries as well as certain secondaries, it                  dismissed, appeal not allowed, 648 N.E.2d 514 (Ohio 1995), cited by
                                                                             DP&L, in which the court held that, in a second trial, the defendant had
                                                                             a good-faith belief that it was not liable based, in part, on a directed
     5                                                                       verdict in its favor in the first trial, despite the fact that that verdict was
     The Wissel court noted that the Ohio Supreme Court had not              overturned on appeal. However, the court of appeals noted that there
expressly adopted § 323, but that it had cited that section with approval.   were compelling reasons for the defendant to believe that it could prevail
See Wissel, 605 N.E.2d at 465. The Ohio Supreme Court still has not          in the new trial, because it had located new witnesses and therefore could
spoken definitively on § 323(b) since Wissel was decided.                    present a new theory of nonliability. See id. at *2.
10     Conte v. General               Nos. 98-4315; 99-4137       Nos. 98-4315; 99-4137                 Conte v. General          11
       Housewares Corp., et al.                                                                   Housewares Corp., et al.

sufficient to demonstrate an abuse of discretion. We therefore    Family Counseling Ctr., 673 N.E.2d 1311, 1319 (Ohio 1997).
uphold the award of prejudgment interest to Conte.                “In Ohio, ‘[t]he existence of a duty depends on the
                                                                  foreseeability of the injury . . . . The test for foreseeability is
B. DP&L’s Motion for Judgment as a Matter of Law                  whether a reasonably prudent person would have anticipated
                                                                  that an injury was likely to result from the performance or
  1. Standard of Review                                           nonperformance of an act.’” Id. (quoting Menifee v. Ohio
                                                                  Welding Prods., Inc., 472 N.E.2d 707, 710 (Ohio 1984))
   This court reviews de novo the district court’s disposition    (omission and alteration in original).
of a motion for a judgment as a matter of law under Federal
Rule of Civil Procedure 50. See K&T Enters., Inc. v. Zurich         The district court was correct to find that DP&L owed a
Ins. Co., 97 F.3d 171, 175 (6th Cir. 1996). To the extent that    duty of ordinary care to Conte, because DP&L voluntarily
DP&L claims that the district court erred in finding that         undertook to perform services for the benefit of Conte and the
DP&L had assumed a duty of care, it raises a purely legal         other Kessler painters. The Court of Appeals of Ohio adopted
question, see Mussivand v. David, 544 N.E.2d 265, 270 (Ohio       the position of the Restatement (Second) of Torts § 323 in
1989), which is also reviewed de novo by this court, see          Wissel v. Ohio High School Athletic Association, 605 N.E.2d
Hostetler v. Consolidated Rail Corp., 123 F.3d 387, 390 (6th      458 (Ohio Ct. App. 1992). That section states as follows:
Cir. 1997). However, DP&L also argues that the jury could
not have found, based on the evidence presented at trial, that      One who undertakes, gratuitously or for consideration, to
it assumed a specific duty to de-energize the primary lines or      render services to another which he should recognize as
that it failed to de-energize the secondary lines with              necessary for the protection of the other's person or
reasonable care. This court has held that the district court —      things, is subject to liability to the other for physical
and this court in its de novo review — must apply state-law         harm resulting from his failure to exercise reasonable
standards to determine whether the evidence was sufficient to       care to perform his undertaking, if
support the jury’s verdict. See K&T Enters., 97 F.3d at 176.        ...
Therefore, this court, like the district court, construes the       (b) the harm is suffered because of the other's reliance
evidence most strongly in favor of the non-movant; if there is      upon the undertaking.
substantial evidence supporting the jury verdict, about which
reasonable minds may disagree, the motion is properly             RESTATEMENT (SECOND) OF TORTS § 323 (1965); see Wissel,
denied. See Hostetler, 123 F.3d at 390; see also Cardinal v.      605 N.E.2d at 464-65; see also Best v. Energized Substation
Family Foot Care Ctrs., Inc., 532 N.E.2d 162, 164 (Ohio Ct.       Serv., Inc., 623 N.E.2d 158, 162 (Ohio Ct. App. 1993)
App. 1987); OHIO CIV. R. 50(A)(4). Under Ohio law, the            (“When one voluntarily assumes a duty to perform, and
credibility of the witnesses and the weight of the evidence are   another reasonably relies on that assumption, the act must be
not to be considered when ruling on such a motion. See            performed with ordinary care.”); Smith v. Cincinnati Gas &
Cardinal, 532 N.E.2d at 164.                                      Elec. Co., 600 N.E.2d 325, 327 (Ohio Ct. App. 1991)
                                                                  (holding that the defendant utility “assume[d] a general duty
  2.    Appropriateness of the District Court’s Denial of
        the Motions
  To make out a claim for negligence, a plaintiff must show
the existence of a duty. See Estates of Morgan v. Fairfield
