[Cite as Link v. FirstEnergy Corp., 2014-Ohio-5432.]




                 Court of Appeals of Ohio
                                   EIGHTH APPELLATE DISTRICT
                                      COUNTY OF CUYAHOGA


                                  JOURNAL ENTRY AND OPINION
                                          No. 101286



                                      DOUGLAS LINK, ET AL.

                                                             PLAINTIFFS-APPELLEES/
                                                             CROSS-APPELLANTS

                                                       vs.

                                  FIRSTENERGY CORP., ET AL.

                                                             DEFENDANTS-APPELLANTS
                                                             CROSS-APPELLEES



                                        JUDGMENT:
                              AFFIRMED IN PART, REVERSED AND
                                    REMANDED IN PART



                                       Civil Appeal from the
                              Cuyahoga County Court of Common Pleas
                                     Case No. CV-10-743317

        BEFORE: Rocco, P.J., E.A. Gallagher, J., and Stewart, J.

        RELEASED AND JOURNALIZED: December 11, 2014
ATTORNEYS FOR APPELLANTS

Thomas I. Michals
William E. Coughlin
John J. Eklund
Eric S. Zell
Calfee, Halter & Griswold, L.L.P.
The Calfee Building
1405 East Sixth Street
Cleveland, Ohio 44114

ATTORNEYS FOR APPELLEE

Joseph J. Triscaro
Demarco & Triscaro, Ltd.
30505 Bainbridge Road
Suite 110
Solon, Ohio 44139

Robert P. Demarco
Demarco & Triscaro, Lt.
30505 Bainbridge Road
Suite 225
Solon, Ohio 44139




KENNETH A. ROCCO, P.J.:
       {¶1}     In this appeal following a jury trial, defendants-appellants/cross-appellees

Cleveland Electric Illuminating Company (“CEI”) and FirstEnergy Service Company (“FESC”)

(collectively “the Defendants”) appeal from the trial court’s final order granting a judgment in

favor of plaintiffs-appellees/cross-appellants Douglas Link and Diane Link (collectively “the

Links”). The Links also filed a cross-appeal. For the reasons that follow, we affirm in part

and reverse and remand in part the trial court’s final judgment.

       {¶2}    Although many of the relevant facts appear in the analysis section where

applicable, we begin with a brief background of the factual and procedural history of this case.

CEI owned and operated utility poles along Savage Road in Bainbridge Township.         FESC is a

shared service company that supports CEI by providing services such as external affairs,

economic development, accounting, and legal support.         As part of this relationship, FESC

makes suggestions and recommendations to CEI on a variety of matters.

       {¶3} On May 8, 2006, the Bainbridge Township Board of Trustees passed a resolution to

improve and widen the entire length of Savage Road in Bainbridge Township. In late 2006, the

Geauga County Engineer’s Office sent the Defendants the preliminary road reconstruction plans

for the Savage Road widening project. On October 30, 2008, the Defendants transmitted their

original utility pole relocation plans for Savage Road to the Geauga County Engineer’s Office.

       {¶4} Prior to the winter of 2008-2009, CEI relocated certain utility poles; however, it

did not relocate approximately eight utility poles along the west side of Savage Road.       The

original plans called for the relocation of these poles. Savage Road remained closed for the

winter of 2008-2009 because the utility pole relocation project was not completed, and the

Defendants had made assurances that the relocation project would be finished in the first quarter

of 2009 pursuant to the original plans.
          {¶5} The Defendants failed to return to the project, and on March 2, 2009, the Defendants

sent the Geauga County Engineer revised plans, which called for the poles that had not been

relocated to remain in their current positions.       On March 26, 2009, the Geauga County

Engineer’s Office sent the Defendants a letter concerning the Defendants’ revised plans,

specifically the plan not to relocate the poles. The Defendants, however, never moved the poles

and the road was eventually reopened.

          {¶6} On October 8, 2010, at around 10:00 p.m., Douglas Link was traveling on Savage

Road in Bainbridge Township on his motorcycle. A white tail buck struck him under his left

arm causing him to veer towards the right side of the road.     Mr. Link struck a utility pole (“the

Pole”) owned by CEI causing serious and permanent injury to his right leg and pelvis.

          {¶7} The Links filed a complaint in the trial court against CEI and FirstEnergy

Corporation on December 10, 2010, asserting claims for, inter alia, negligence, qualified

nuisance, loss of consortium, and punitive damages. On May 11, 2011, following discovery,

the Defendants filed motions for summary judgment. The trial court denied the motions on

October 7, 2011. The Defendants filed motions for reconsideration that the trial court also

denied.

          {¶8} On June 15, 2011, the Links sought leave to amend their complaint based upon

newly discovered evidence that FESC was also culpable. The trial court granted the Links’

request on April 12, 2012.     FESC, CEI, and First EnergyCorporation filed motions for summary

judgment on September 14, 2012, which the trial court denied.

          {¶9} The case proceeded to trial on January 23, 2013. At the close of the Links’ case,

the Defendants moved for directed verdicts.          The trial court did direct a verdict as to

FirstEnergy Corporation, because the trial court concluded that it was merely a holding company.
 The trial court also directed verdicts on a number of claims not relevant to the instant appeal.

The trial court reserved ruling on the Links’ punitive damages claim, and denied the motion for

directed verdict with respect to the Links’ claims against the Defendants for negligence and

qualified nuisance. The Defendants renewed their motions for directed verdicts at the close of

their case. The trial court granted the Defendants’ motion for a directed verdict concerning the

Links’ claim for punitive damages, but denied the other motions.

        {¶10} On February 5, 2013, the jury returned a verdict in favor of the Links on their

claims for qualified nuisance and loss of consortium, and a verdict in favor of the Defendants on

the Links’ negligence claim. On February 19, 2013, the Links filed a motion for prejudgment

interest.   On that same day, the Links filed a motion for a new trial on the issue of damages

only, or in the alternative additur. The trial court denied both motions. On February 21, 2013,

the Defendants filed a motion for judgment notwithstanding the verdict (“JNOV”). The trial

court denied the motion on July 26, 2013, and the Defendants appealed to this court.

        {¶11} We dismissed the initial appeal for lack of a final appealable order.        The trial

court corrected this issue through the entry of a nunc pro tunc order filed on April 18, 2014.

This order set forth the disposition of all of the Links’ claims, entered the comparative fault

findings, and awarded the Links their respective damages based upon such findings. This order

is the subject of the instant appeal.

        {¶12} The Defendants have collectively set forth five assignments of error. CEI sets

forth four assignments of error for our review:

        I. The trial court erred in failing to grant summary judgment, a directed verdict, or
        a JNOV as to the Links’ claims for qualified nuisance on the grounds that the
        Ohio Supreme Court’s decision in Turner v. Ohio Bell Telephone Co., 118 Ohio
        St.3d 215, 2008-Ohio-2010, 887 N.E.2d 1158, controls and establishes that CEI
        cannot be liable to the Links for Douglas Link’s collision with the Pole located off
       the improved portion of the road because (a) CEI possessed the necessary
       permission to install the Pole and (b) CEI’s pole did not interfere with the usual
       and ordinary course of travel.

       II. The trial court erred in failing to grant summary judgment, direct a verdict, or
       grant JNOV as to the Links’ claim for qualified nuisance on the grounds that the
       Links failed to identify any public right with which the Pole interfered, which is a
       necessary element of the claim.

       III. The trial court erred in failing to grant summary judgment, direct a verdict, or
       grant JNOV as to the Links’ claim for qualified nuisance after the jury found that
       neither CEI nor FESC owed a duty of care to Douglas Link.

       IV. The trial court erred in failing to grant summary judgment, direct a verdict, or
       grant JNOV as to Diane Link’s derivative claim for loss of consortium on the
       grounds that there was no viable substantive claim against CEI or FESC.

FESC has set forth a single assignment of error for our review:

       V. The trial court erred in failing to direct a verdict or to grant JNOV on the
       Links’ claim of qualified nuisance against FESC when the evidence demonstrated
       that FESC neither owned nor controlled the Pole that was struck by Douglas
       Link’s motorcycle.

The Links filed a cross-appeal and set forth four cross-assignments of error:

       I. The trial court erred in failing to grant the Links a new trial for the limited
       purpose of past pain and suffering.

       II. The trial court erred in granting the Defendants’ motion for directed verdict
       related to the Links’ claim for punitive damages, and not permitting an instruction
       on punitive damages to go to the jury.

       III. The trial court erred in failing to grant the Links’ motion for prejudgment
       interest.

       IV. The trial court erred in failing to grant the Links a new trial on the issue of
       damages.

                                       Standards of Review

       {¶13} We review de novo a trial court’s order denying a motion for summary judgment.

Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Under Civ.R.
56(C), summary judgment should be granted if (1) there is no genuine issue as to any material

fact; (2) the moving party is entitled to judgment as a matter of law; and (3) 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, who is entitled to have the evidence construed most strongly in

his favor. Gilbert v. Summit Cty., 104 Ohio St.3d 660, 2004-Ohio-7108, 821 N.E.2d 564, ¶ 6.

       {¶14} We also apply a de novo standard review to a trial court’s order denying a motion

for a directed verdict or a motion for JNOV.       Zappola v. Rock Capital Sound Corp., 8th Dist.

Cuyahoga No. 100055, 2014-Ohio-2261, ¶ 63. In considering either motion, the trial court

should construe the evidence in the light most favorable to the non-moving party. Id. at ¶ 64,

citing Posin v. A.B.C. Motor Court Hotel, Inc., 45 Ohio St.2d 271, 275, 344 N.E.2d 334 (1976)

The motion should be denied if there is substantial evidence to support the non-moving party’s

side of the case and if reasonable minds could reach different conclusions. Id. In deciding the

motion, the trial court shall not weigh the evidence or the credibility of the witnesses. Id.

       {¶15} We apply the abuse of discretion standard when reviewing a trial court’s ruling on

a motion for a new trial.   Id. at ¶ 65. Under Civ.R. 59(A)(6), a trial court may order a new trial

if it is apparent that the verdict is not sustained by the manifest weight of the evidence.     In

considering a motion for a new trial, the trial court is required to

       weigh the evidence and pass upon the credibility of the witnesses, not in the
       substantially unlimited sense that such weight and credibility are passed on
       originally by the jury but in the more restricted sense of whether it appears to the
       trial court that manifest injustice has been done and that the verdict is against the
       manifest weight of the evidence.

Rybak v. Main Sail, LLC, 8th Dist. Cuyahoga No. 96899, 2012-Ohio-2298, ¶ 52, quoting

Rohde v. Farmer, 23 Ohio St.2d 82, 262 N.E.2d 685 (1970), paragraph three of the syllabus.

With these standards in mind, we turn to the assignments of error raised by the parties.
                                              Analysis

        {¶16} In the Defendants’ first assignment of error, CEI argues that the qualified nuisance

claim must fail under the Ohio Supreme Court’s decision in Turner v. Ohio Bell Tel. Co., 118

Ohio St.3d 215, 2008-Ohio-2010, 887 N.E.2d 1158. We disagree. In Turner, the Court held

that

        when a vehicle collides with a utility pole located off the improved portion of the
        roadway but within the right-of-way, a public utility is not liable, as a matter of
        law, if the utility has obtained any necessary permission to install the pole and the
        pole does not interfere with the usual and ordinary course of travel.

Id. at ¶ 21. The utility pole in Turner was erected pursuant to a permit issued by the Ohio

Department of Transportation. Id. at ¶ 26. Therefore, the court concluded that the utility

company had obtained the necessary permission to install the pole.       The court also determined

that the pole did not interfere with the usual and ordinary course of travel because it was “located

in the right-of-way but off the improved portion of the road and because a motorist properly

using the usual and ordinary course of travel would not come into contact with the utility pole.”

Id. at ¶ 26.

        {¶17} Following Turner, in Bidar v. Cleveland Elec. Illum. Co., 8th Dist. Cuyahoga No.

97490, 2012-Ohio-3686, we were confronted with facts that were, unfortunately, similar to the

facts in the instant case. In Bidar, the plaintiff was also driving on Savage Road when a deer

darted into the roadway.    The plaintiff swerved to avoid hitting the deer and, instead, hit one of

the other utility poles that the Defendants had refused to relocate.    The trial court determined

that under Turner, CEI was entitled to summary judgment.       We reversed.

        {¶18} We first explained that under Turner, “a jury determination of the reasonableness

of pole placement is unnecessary if (1) permission was granted, and (2) the pole does not
interfere with the usual and ordinary course of travel.” Id. at ¶ 16. We further determined that

“[t]hese are two separate requirements, but ‘placement that complies with the requirements of the

public authority that owns the right of way is indicative that the object is not an obstacle to the

traveling public.’” Id., quoting Turner at ¶ 20.

       {¶19} Applying Turner to the facts in Bidar, we determined, inter alia, that no permission

had been granted by any public authority in the Bidar case. Id. at ¶ 17. We explained that

under R.C. 5543.09(A) and 5571.05, the project to widen Savage Road was subject to the

supervision of the county engineer.1 Id. at ¶ 25. The plaintiffs in Bidar had set forth evidence

demonstrating that the county engineer found the pole’s placement unacceptable and, therefore,

the county engineer had not granted permission for the pole’s placement. Id. We concluded

that the case was distinguishable from the facts in Turner and that the reasonableness of the pole

placement remained a jury question.

       {¶20} Applying Bidar to the instant case leads us to the same conclusion. In this case,

the plaintiffs set forth the same documentary evidence that the Bidar plaintiffs set forth regarding

the county engineer’s concerns about the location of the utility poles on Savage Road.

Originally, CEI had planned to relocate or remove all of its poles on Savage Road. But after

removing some of the poles, CEI abandoned its original plan.

       {¶21} On March 26, 2009, the Geauga County Engineer’s Office sent the Defendants a

letter concerning CEI’s revised plans stating that the township had kept Savage Road closed

since the project began to “protect not only the driving public, but also their and your tort

liability.” The letter went on to state that the revised plans did not “address the clear zone of the


       1
         CEI argues that these statutes do not require that CEI gain the county engineer’s approval for
pole placement. We already rejected that argument in Bidar. See Bidar at ¶ 17, 25.
roadway.    In some cases the poles are in the ditch line and may not have enough cover, in other

areas, poles are in front of the ditch and only four to six feet off the edge of the pavement.”

According to the county engineer, the revised plans created a “liability the township will not

allow to exist on a public road,” as well as a “liability” the engineer thought appellants would not

want to absorb. The letter concluded as follows:

       As Project Manager for the township road reconstruction project, I am requesting
       your review of this project with the hope you will agree that it is in the best
       interest of everyone that FESC completes the [original] plan in a timely fashion
       and provide a safe, clear zone for the roadway.

       {¶22} The Defendants were not responsive to the concerns raised in the letter. Less than

one year later, the Bidar accident occurred. The township wrote to the Defendants again,

informing them of the Bidar accident and stating:

       It is apparent that safety dictates the relocation of these poles to an adequate
       distance from the roadway and in line with the other poles on Savage Road.

       We would like a resolution of this issue with CEI as soon as possible and before
       there are any further accidents. We look forward to your prompt notification of
       the schedule for relocating the poles.

The township did not receive a response for almost three months. The response stated that the

Defendants had decided not to relocate the utility poles except at the township’s sole cost and

expense. Twenty-five days later, the Link accident occurred.

       {¶23} CEI argues that the county and the township implicitly approved of the decision to

leave the Pole in place by reopening Savage Road with the Pole in its original position.        We

disagree.   The evidence set forth above establishes that the county engineer consistently

communicated its disapproval to the Defendants regarding the Pole’s placement.                  The

Defendants refused to move the Pole notwithstanding this disapproval, and eventually the road

was reopened. After the road was reopened and the Bidar accident occurred, the Defendants
were again notified that the poles that had not been relocated were in an unacceptable location.

The message to the Defendants was consistent and clear: the Pole needed to be relocated. CEI’s

argument to the contrary fails.

       {¶24} We conclude, as we did in Bidar, that CEI did not have the requisite permission

to keep the Pole in its original location after completion of the Savage Road widening project.

Accordingly, CEI cannot rely on Turner as a shield from liability.            We overrule the first

assignment of error.

       {¶25} In the Defendants’ second assignment of error, CEI argues that the trial court erred

in failing to grant summary judgment, direct a verdict, or grant JNOV as to the Links’ claim for

qualified nuisance on the grounds that the Links failed to identify any public right with which the

Pole interfered, which is a necessary element of the claim.

       {¶26} CEI asserts that a qualified nuisance is a form of public nuisance and that a public

nuisance does not exist unless there was an interference with a public right common to all

members of the general public.      According to CEI, the public does not have the right to drive off

the roadway to a place where it might strike a stationary object off the road.

       {¶27} We disagree with CEI’s position.       First, qualified nuisance is not a form of public

nuisance. A qualified nuisance can also exist as a private nuisance. See Hardin v. Naughton,

8th Dist. Cuyahoga No. 98645, 2013-Ohio-1549, ¶ 19 (“A public or private nuisance may be

further classified as either an ‘absolute’ nuisance, or nuisance per se, or a ‘qualified’ nuisance.”).

 The linchpin in a qualified nuisance claim is whether “a lawful act [was] ‘so negligently or

carelessly done as to create a potential and unreasonable risk of harm, which in due course results

in injury to another.’”   Id. at ¶ 20.
       {¶28} Second, if we were to credit CEI’s position, then it would follow that no one could

ever recover for a qualified nuisance when one drives off the roadway and hits a pole. But our

case law makes clear that there are circumstances when one can recover for qualified nuisance

for driving off a roadway and hitting a pole.    In Bidar we reversed the trial court’s grant of

summary judgment on the driver’s qualified nuisance claim, in part because “the Bidars

presented evidence that created a genuine issue of material fact as to whether the pole placement

interfered with the usual and ordinary course of travel.” Bidar, 8th Dist. Cuyahoga No. 97490,

2012-Ohio-3686, at ¶ 25. In Bidar, as in the instant case, the pole that the driver hit was located

off of the road. By reversing summary judgment in Bidar, we necessarily determined that there

are instances where a plaintiff can recover for a qualified nuisance when he has driven off the

road and hit a pole. Because CEI’s argument boils down to the contention that one can never

recover under such circumstances, the assignment of error fails.   The second assignment of error

is overruled.

       {¶29} In the Defendants’ third assignment of error, CEI argues that the trial court erred in

failing to grant summary judgment, direct a verdict, or grant JNOV as to the Links’ claim for

qualified nuisance after the jury found that neither CEI nor FESC owed a duty of care to Douglas

Link. For the reasons that follow, we overrule the assignment of error.

       {¶30} “In essence, an action for qualified nuisance is an action for the negligent

maintenance of a condition that creates an unreasonable risk of harm that results in injury.”

Hardin, 8th Dist. Cuyahoga No. 98645, 2013-Ohio-1549, at ¶ 20.            A nuisance claim relies

upon a finding of negligence, and so “the allegations of nuisance and negligence merge.” Id.,

citing Allen Freight Lines, Inc. v. Consol. Rail Corp., 64 Ohio St.3d 274, 276, 595 N.E.2d 855

(1992). Therefore, to prevail on a claim for qualified nuisance, a plaintiff must demonstrate that
the defendants breached an applicable duty of care and that the breach proximately caused the

plaintiff’s injuries. See id. at ¶ 22.

       {¶31} The jury found that CEI was liable for qualified nuisance. But in a special

interrogatory for the negligence claim, the jury determined that CEI did not owe a duty of care to

Douglas Link. Because the existence of an applicable duty is one of the elements of a qualified

nuisance claim, the jury’s verdicts on the two claims in this case are at odds with one another.

The Links point out that the special interrogatory was specific to the negligence claim and that

the general verdict was specific to the qualified nuisance claim.    But because the allegations of

negligence and the allegations of qualified nuisance merge, we conclude that the special

interrogatory in the negligence claim is relevant to the general verdict in the qualified nuisance

claim. See id. at ¶ 20.

       {¶32} However, CEI waived any error in the inconsistency by failing to object before the

jury was discharged. See Avondet v. Blankstein, 118 Ohio App.3d 357, 368, 692 N.E.2d 1063

(8th Dist.1997). The law is clear that where the inconsistencies between a general verdict and

an interrogatory are apparent before the jury is discharged, the inconsistency is waived unless a

party raises an objection prior to the jury’s discharge. Id. at 368-369.

       {¶33} Under Civ.R. 49(B), a trial court has three options if the jury’s answers to the

interrogatories are internally inconsistent or inconsistent with the verdict: (1) it may enter

judgment consistent with the answers, notwithstanding the verdict; (2) it may return the matter to

the jury for further consideration, or (3) it may order a new trial.    Proctor v. Hankinson, 5th

Dist. Licking No. 08 CA 0115, 2009-Ohio-4248, ¶ 43.                 The Ohio Supreme Court has

determined that when an interrogatory response is inconsistent and irreconcilable with the
general verdict, “the clear, best choice [is] to send the jury back for further deliberations.”

Shaffer v. Maier, 68 Ohio St.3d 416, 421, 627 N.E.2d 986 (1994).

       {¶34} If a party fails to bring the inconsistency to the court’s attention while the jury is

still empaneled, and later files a motion for a new trial, that party “has effectively curtailed the

court’s discretion by eliminating two of [the court’s] options under Civ.R. 49, including the

option the Supreme Court found to be the clear best choice.” Proctor at ¶ 46.

       {¶35} The waiver rule serves two important goals.       First, it “promote[s] the efficiency of

trials by permitting the reconciliation of inconsistencies without the need for a new presentation

of evidence to a different trier of fact.” Avondet, 118 Ohio App.3d at 368, quoting Greynolds v.

Kurman, 91 Ohio App.3d 389, 395, 632 N.E.2d 946 (1993). The rule also “prevent[s] jury

shopping by litigants who might wait to object to an inconsistency until after the original jury is

discharged.” Id.

       {¶36} In the instant case, although the inconsistency between the general verdict and

interrogatory were apparent prior to the jury’s discharge, CEI did not object to the inconsistency

until after the jury was discharged.    Accordingly, CEI waived any error in the inconsistency.2

Accordingly, we overrule the third assignment of error.

       {¶37} In the Defendants’ fifth assignment of error,3 FESC asserts that the trial court erred

in failing to direct a verdict or to grant JNOV on the Links’ claim of qualified nuisance against


       2
        Although CEI does not argue plain error, we note that the inconsistency in this case does not
amount to plain error. In Avondet, we concluded that the interrogatory was clearly inconsistent with
the general verdict, but concluded that the appellant had waived the inconsistency. Implicit in this
holding is the rule that such inconsistencies do not constitute plain error. It, likewise, follows that
any such inconsistency in the instant case does not rise to the level of plain error.
       3
        We address the assignments of error out of order for ease of discussion.
FESC when the evidence demonstrated that FESC neither owned nor controlled the Pole that was

struck by Douglas Link’s motorcycle. We disagree and so we overrule the assignment of error.

       {¶38} FESC argues that in order for it to be held liable for qualified nuisance, the Links

were required to demonstrate that FESC had possession or control over the thing that allegedly

caused the nuisance:    in this case, the Pole.    The Links take issue with the legal standard

articulated by FESC, but they argue that, even if the legal standard articulated by FESC is

correct, the record demonstrates that FESC did possess or control the Pole.

       {¶39} We agree with the Links.        FESC is relying on the defense of “landlord out of

possession and control,” a common law defense applying in the landlord-tenant context.         See

Ogle v. Kelly, 90 Ohio App.3d 392, 396, 629 N.E.2d 495 (1st Dist.1993). Under this rule, “if

the landlord does not retain the right to admit or exclude persons from the leased premises,

neither does the landlord reserve the possession or control necessary for imposition of liability

because of the condition of the premises.”    Id. at 396, citing Hendrix v. Eighth & Walnut Corp.,

1 Ohio St.3d 205, 438 N.E.2d 1149 (1982).      We fail to see how this rule applies to the facts of

the instant case. FESC and CEI are not landlord and tenant. Rather, FESC is a shared service

company that supports electric distribution operating companies like CEI.4

       {¶40} In order to demonstrate that FESC was liable for qualified nuisance, the Links were

required to demonstrate that FESC breached an applicable duty of care and that the breach

proximately caused Douglas Link’s injuries.       See Hardin, 8th Dist. Cuyahoga No. 98645,

2013-Ohio-1549, at ¶ 22. FESC argues for the first time in its reply brief that it did not owe a


       4
         Furthermore, assuming arguendo that the Links were required to demonstrate that FESC
possessed or controlled the Pole, the record provides ample evidence from which a reasonable jury
could reach that conclusion.
duty to the Links.     We will not consider this argument.    “Reply briefs are to be used only to

rebut arguments raised in an appellee’s brief, and an appellant may not use a reply brief to raise

new issues or assignments of error.” Capital One Bank (USA), N.A. v. Gordon, 8th Dist.

Cuyahoga No. 98953, 2013-Ohio-2095, ¶ 9.         See also App.R. 16(C). For the aforementioned

reasons, we overrule the fifth assignment of error.

       {¶41} In the Defendants’ fourth assignment of error, CEI argues that the trial court erred

in failing to grant summary judgment, direct a verdict, or grant JNOV as to Diane Link’s

derivative claim for loss of consortium on the grounds that there was no viable substantive claim

against CEI or FESC.

       {¶42} The jury found that Diane Link was entitled to damages based on her loss of

consortium claim.      A loss of consortium claim is a derivative cause of action dependent on the

viability of the primary cause of action. See Tourlakis v. Beverage Distrib., 8th Dist. Cuyahoga

No. 81222, 2002-Ohio-7252, ¶ 29. In this case, the primary cause of action is Douglas Link’s

qualified nuisance claim.     Diane Link’s loss of consortium claim is derivative of the qualified

nuisance claim.      CEI’s argument in its fourth assignment of error is based on the assumption

that we would sustain either its first, second, or third assignments of error, because those

assignments of error challenge the viability of the qualified nuisance claim.    CEI asserts that if

the qualified nuisance claim fails, then the loss of consortium claim must also fail.   Similarly, in

its fifth assignment of error based on the qualified nuisance claim, FESC asserts that if we

sustain the assignment of error, then FESC cannot be liable to Diane Link for loss of consortium.



       {¶43} Because we have overruled the first, second, third, and fifth assignments of error,

Douglas Link’s primary cause of action for qualified nuisance survives as to both CEI and FESC.
 Accordingly, Diane Link’s loss of consortium claim also survives. We, therefore, overrule the

fourth assignment of error.

       {¶44} In their first cross-assignment of error, the Links argue that the trial court erred in

failing to grant the Links a new trial for the limited purpose of past pain and suffering. We

overrule the assignment of error.

       {¶45} In one of the interrogatories, the jury found that Douglas Link should be

compensated in the following manner: $237,200 for past economic loss, $180,982 for future

economic loss, $0 for past non-economic loss, and $234,100 for future non-economic loss. The

Links point out that they requested approximately $100,000 in past economic damages related to

past income loss, and $620,718.84 for past medical expenses. The argument follows that a

portion of the jury’s award for past economic harm must have included Douglas Link’s past

medical expenses. According to the Links, because the jury awarded Douglas Link damages for

medical expenses, they were required under the law to award him damages for past

non-economic harm as well. We will not resolve this issue, because the Links have waived the

argument.

       {¶46} In essence, the Links are arguing that the jury’s verdict was inconsistent.    But the

Links failed to object to the jury’s damages award until after the jury had been dismissed.    This

brings us back to our analysis in CEI’s third assignment of error. See supra at ¶ 16-24. What

is good for the goose is good for the gander. The Links had an opportunity to raise any readily

apparent inconsistency in the jury’s verdict while the jury was still empaneled.   The Links made

no such objection and so waived any alleged inconsistency. See Avondet, 118 Ohio App.3d at

357, 692 N.E.2d 1063. Accordingly, we overrule the first cross-assignment of error.
        {¶47} In their second cross-assignment of error, the Links argue that the trial court erred

in granting the Defendants’ motion for a directed verdict related to the Links’ claim for punitive

damages and for not permitting an instruction on punitive damages to go to the jury. We agree

that the trial court erred in granting the motion for a directed verdict on punitive damages and so

we sustain the assignment of error.

        {¶48} Punitive damages can be awarded in a civil tort action only where the defendant

acted with “actual malice.” Wilburn v. Cleveland Elec. Illum. Co., 74 Ohio App.3d 401, 411,

599 N.E.2d 301 (8th Dist.1991), citing Preston v. Murty, 32 Ohio St.3d 334, 512 N.E.2d 1174

(1987). The Ohio Supreme Court has explained:

        Actual malice, necessary for an award of punitive damages, is (1) that state of
        mind under which a person’s conduct is characterized by hatred, ill will or a spirit
        of revenge, or (2) a conscious disregard for the rights and safety of other persons
        that has a great probability of causing substantial harm.

Preston at syllabus.    “[T]he latter category of actual malice includes ‘extremely reckless

behavior revealing a conscious disregard for a great and obvious harm.’” Cabe v. Lunich, 70

Ohio St.3d 598, 601, 640 N.E.2d 159 (1994), quoting Preston at 335. The purpose behind

awarding punitive damages is both to punish the offending party and to deter others from similar

behavior. Id. at 601-602.

        {¶49} Before submitting the issue of punitive damages to a jury, the trial court is required

to

        review the evidence to determine if reasonable minds can differ as to whether the
        party was aware his or her act had a great probability of causing substantial harm.
         Furthermore, the court must determine that sufficient evidence is presented
        revealing that the party consciously disregarded the injured party’s rights or
        safety.

Id. at 336.
       {¶50} In the instant case, the trial court granted the Defendants’ motion for a directed

verdict on punitive damages because it determined that the evidence did not support a finding

that there was a great probability that the Defendants’ actions would harm Douglas Link. The

trial court based its conclusion on the fact that there were 2,200 vehicles driving on Savage Road

each day, but there had been only one prior accident on the road. According to the trial court,

while there may have been a possibility of substantial harm there was not a great probability of

substantial harm.

       {¶51} The Links argue that the trial court erred because there was substantial evidence

in the record to support a finding that CEI and FESC consciously disregarded Douglas Link’s

safety. We agree. CEI and FESC had knowledge of a prior, similar collision that had recently

taken place at the same set of utility poles.

       {¶52} The evidence presented at trial revealed that Savage Road was widened and

reopened in 2009, and that CEI and FESC were notified by the county engineer that the location

of the poles posed a safety risk. The Bidar accident occurred on May 23, 2010. CEI and

FESC were notified about the Bidar accident and chose not to relocate the poles.5        Douglas

Link’s accident occurred less than five months later on October 8, 2010. There was sufficient

evidence presented from which a jury could conclude that there was a great probability of harm.

Evidence was also presented that the speed limit on Savage Road was 45 miles per hour.

Therefore, sufficient evidence was presented from which a jury could conclude that the harm

caused could be substantial.




       5
          At oral argument, the Links’ attorney cited to testimony from two CEI employees who
testified that moving the eight poles would have cost a total approximately $20,000.
         {¶53} We conclude that reasonable minds could differ as to whether CEI and FESC were

aware that their acts had a great probability of causing substantial harm.     Accordingly, the trial

court erred in granting CEI and FESC’s motion for a directed verdict on the issue of punitive

damages.

         {¶54} On remand, the trial court is directed to conduct a new trial on the issue of

punitive damages with CEI and FESC as the only defendants.          The parties argue as to whether,

in a trial on the issue of punitive damages, the trial court should permit the introduction of

evidence concerning the Bidar accident. We conclude that the evidence concerning the Bidar

accident is admissible for purposes of such new trial on punitive damages.

         {¶55} Although the trial court originally granted the Defendants’ motion in limine to

exclude evidence of the Bidar accident, this motion practice was relevant to a trial on the issue of

liability.   The trial court could have logically determined under Evid.R. 403(A) that the

probative value of that evidence was substantially outweighed by the danger of unfair prejudice,

of confusion of the issues, or of misleading the jury. But such concerns are not present in a trial

on the issue of punitive damages.       Evidence showing that CEI and FESC were aware of the

Bidar accident is probative of whether CEI and FESC consciously disregarded Douglas Link’s

safety. Further, there is no danger of unfair prejudice, confusion of the issues, or misleading the

jury. Accordingly, the jury should be permitted to hear evidence relevant to the Bidar accident.

 The Links’ second cross-assignment of error is sustained.

         {¶56} In their third cross-assignment of error, the Links argue that the trial court erred in

failing to grant the Links’ motion for prejudgment interest.        We overrule the assignment of

error.
       {¶57} A ruling on a motion for prejudgment interest is reviewed for an              abuse of

discretion.    See Damario v. Shimmel, 8th Dist. Cuyahoga Nos. 90760 and 90875,

2008-Ohio-5582, ¶ 55, citing Scioto Mem. Hosp. Assn. v. Price Waterhouse, 74 Ohio St.3d 474,

479, 659 N.E.2d 1268 (1996).

       {¶58} R.C. 1343.03 provides that prejudgment interest may be awarded in the following

instance:

       If, upon motion of any party to a civil action that is based on tortious conduct, that
       has not been settled by agreement of the parties, and in which the court has
       rendered a judgment, decree, or order for the payment of money, the court
       determines at a hearing held subsequent to the verdict or decision in the action
       that the party required to pay the money failed to make a good faith effort to settle
       the case and that the party to whom the money is to be paid did not fail to make a
       good faith effort to settle the case[.]

       {¶59} The rule “encourage[s] prompt settlement and * * * discourage[s] defendants from

frivolously opposing and prolonging suits for legitimate claims between injury and judgment.”

 Damario at ¶ 52, citing Royal Elec. Constr. Corp. v. Ohio State Univ., 73 Ohio St.3d 110, 116,

652 N.E.2d 687 (1995).

       {¶60} The party seeking prejudgment interest bears the burden of proof. Id. at ¶ 54. In

determining whether to award a motion for prejudgment interest, the trial court must consider

whether the nonmoving party: “(1) fully cooperated in discovery proceedings, (2) rationally

evaluated its risks and potential liability, (3) did not unnecessarily delay the proceedings, and (4)

made a good faith settlement offer or responded in good faith to an offer from the other party.”

Id., citing Kalain v. Smith, 25 Ohio St.3d 157, 159, 495 N.E.2d 572 (1986). “If a party has a

good faith, objectively reasonable belief that he has no liability, he need not make a monetary

settlement offer.” Kalain at 159.
         {¶61} The Links assert that the Defendants’ offer to settle the case for $20,000 was not

made in good faith, and that the Defendants unnecessarily delayed the proceedings by filing

numerous summary judgment motions and motions for reconsideration based on a questionable

application of Turner, 118 Ohio St.3d 215, 2008-Ohio-2010, 887 N.E.2d 1158. The Defendants

argue that they had a good faith, objectively reasonable belief that Turner applied in this case and

so they were not required to make any monetary settlement offer.         If Turner was applicable, it

would act as a complete bar to recovery.

         {¶62} Although we ultimately determined that Turner does not apply in the instant case,

the Defendants’ argument to the contrary was not frivolous.        Accordingly, the Defendants were

not required to make any monetary settlement offer.       It follows that the Defendants’ motions for

summary judgment and for reconsideration based on Turner did not constitute unnecessary an

delay.    The trial court did not abuse its discretion in denying the Links’ motion for prejudgment

interest, and so we overrule the third cross-assignment of error.

         {¶63} In their fourth cross-assignment of error, the Links argue that the trial court erred in

failing to grant the Links’ a new trial on the issue of damages.     We conclude that the trial court

did not abuse its discretion in denying the motion for a new trial and so we overrule the

assignment of error.

         {¶64} We have previously explained:

         The assessment of damages lies “so thoroughly within the province of the [trier of
         fact] that a reviewing court is not at liberty to disturb the [trier of fact’s]
         assessment” absent an affirmative finding of passion and prejudice or a finding
         that the award is manifestly excessive or inadequate. Moskovitz v. Mt. Sinai Med.
         Ctr., 69 Ohio St.3d 638, 655, 635 N.E.2d 331 (1994). A reviewing court should
         not find that a verdict is inadequate unless “the inadequacy of the verdict is so
         gross as to shock the sense of justice and fairness, or the amount of the verdict
         cannot be reconciled with the undisputed evidence in the case, or it is apparent
         that the jury failed to include all the items of damages comprising a plaintiff’s
        claim.” Pearson v. Wasell, 131 Ohio App.3d 700, 709-710, 723 N.E.2d 609
        (1998), citing Iames v. Murphy, 106 Ohio App.3d 627, 666 N.E.2d 1147 (1995).

Decapua v. Rychlik, 8th Dist. Cuyahoga No. 91189, 2009-Ohio-2029, ¶ 22. With respect to

damages, “the mere fact that testimony is uncontradicted, unimpeached, and unchallenged does

not require the trier of fact to accept the evidence if the trier of fact found that the testimony was

not credible.” Id. at

¶ 25.

        {¶65} The Links first argue that the jury arrived at a quotient verdict.   A quotient verdict

is not legally objectionable unless the jurors entered into a prior agreement to be bound by such a

figure. Michelson v. Kravitz, 103 Ohio App.3d 301, 305, 659 N.E.2d 359 (8th Dist.1995),

citing Lund v. Kline, 133 Ohio St. 317, 13 N.E.2d 575 (1938). The Links do not allege that

the jurors in this case entered into a prior agreement.     Furthermore, the Links fail to identify

specific evidence in support of their allegation that the verdict in this case constitutes a quotient

verdict. Accordingly, this argument is without merit.

        {¶66} The Links also argue that they are entitled to a new trial on damages because the

damages award was against the manifest weight of the evidence. In the instant case, the jury

awarded the Links $798,532. The Links argued at trial that they were entitled to past medical

expenses in the amount of $620,718.84; $186,998 in future medical expenses; $100,000 in lost

past income; $1,051,700 in future lost income; and $318,000 in loss of household services.

        {¶67} Our review of the record does not lead us to conclude that the trial court abused its

discretion. The verdict in this case does not shock the sense of justice and fairness. Further,

the jury was free to disbelieve and discredit the calculations the Links’ economist testified to
with respect to future income loss and the value of loss of household services. For these

reasons, we overrule the Links’ fourth cross-assignment of error.

       It is ordered that appellees/cross-appellants recover from appellants/cross-appellees costs

herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to said court to carry this judgment into

execution.

       A certified copy of this entry shall constitute the mandate pursuant to




Rule 27 of the Rules of Appellate Procedure.



__________________________________________
KENNETH A. ROCCO, PRESIDING JUDGE

EILEEN A. GALLAGHER, J., and
MELODY J. STEWART, J., CONCUR
