[Cite as Jester v. Utilimap Corp., 2018-Ohio-4755.]



                           IN THE COURT OF APPEALS
                 FIRST APPELLATE DISTRICT OF OHIO
                            HAMILTON COUNTY, OHIO



CHRISTA L. JESTER, on behalf of THE :                     APPEAL NO. C-170576
ESTATE OF KEITH A. JESTER,                                TRIAL NO. A-1500283
deceased,                           :

         Plaintiff-Appellee,                          :
                                                             O P I N I O N.
   vs.                                                :

UTILIMAP CORPORATION,                                 :

         Defendant-Appellant,                         :

   and                                                :

DUKE ENERGY OHIO, INC.,                               :

   and                                                :

DUKE ENERGY BUSINESS                                  :
SERVICES, LLC,

         Defendants.                                  :




Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: November 30, 2018

Spangenberg Shibley & Liber LLP, Peter Weinberger, Stuart E. Scott and Jeremy A.
Tor, for Plaintiff-Appellee,

Squire Patton Boggs LLP and Pierre H. Bergeron, and Dinsmore & Shohl LLP,
Bryan E. Pacheco and Kirk M. Wall, for Defendant-Appellant.
                   OHIO FIRST DISTRICT COURT OF APPEALS


DETERS, Judge.

       {¶1}   Defendant-appellant Utilimap Corporation (“Utilimap”) appeals the

almost $28-million judgment entered against it in this wrongful-death and

survivorship lawsuit brought by plaintiff-appellee Christa Jester (“Plaintiff”),

following the death of her husband, Keith Jester. Jester worked for Duke Energy

Ohio, Inc., and he died after a wooden utility pole collapsed on him. Plaintiff sued

defendants Duke Energy Ohio, Inc., and Duke Energy Business Services, LLC,

(collectively “Duke Energy”) and Utilimap, a company hired by Duke Energy to

inspect utility poles, including the collapsed pole. Because we determine that the

trial court erred prior to trial in prohibiting Utilimap from arguing evidence of Duke

Energy’s fault to the jury, and because the trial court erred in denying Utilimap’s

request that the jury apportion fault to Duke Energy, we reverse the trial court’s

judgment and remand the matter for further proceedings.

                                 I.     INTRODUCTION

                                 A. Background Facts

       {¶2}   Duke Energy sought to remove a line of four utility poles on a farm in

Warren County, Ohio, and replace the above-ground lines with an underground line.

The poles were located inside private property, and the employees would not be able

to reach the wires with a truck, so they would have to manually climb the poles.

Jester, a senior lineman, volunteered to do the job and lead a training exercise in the

process. Jester and the crew headed out to do the job in late February 2014. The

crew removed the equipment from the first old pole and let down two electrical wires

that had been hanging between the first and second poles. At this point a gap formed

at the groundline at the base of the second pole.         Prior to climbing, Jester’s

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coworkers watched him sound test the pole with his hammer, and the pole sounded

solid. Jester and another Duke Energy groundsman began climbing the second pole,

which stood 40 feet tall. While both men were on the pole, the pole broke below the

groundline with Jester taking the brunt of the force of the falling pole. Jester died at

the hospital from internal injuries.

       {¶3}   An investigation into the incident ensued, and Duke Energy

determined that the pole had been severely decayed below the groundline. The

subject pole should have been inspected for decay and underground rot

approximately two and a half years before the incident, as part of a 2011 inspection

program, in which Duke Energy contracted Utilimap to inspect 30,000 poles in

Southwest Ohio, including the subject pole; however, the subject pole was never

inspected.

       {¶4}   The 2011 inspection program began in mid-2011 and required

Utilimap to complete a detailed inspection, and in some cases treatment, of each and

every pole. When a Utilimap inspector could not access a pole, Utilimap had to

notify Duke Energy by phone, and then by email if the access issues could not be

resolved. If a pole showed signs of decay, or if a pole had been previously treated for

decay, an inspector had to conduct a groundline excavation of the pole, which meant

digging around the pole to a depth of 18 inches below the groundline. Given the

unexpected number of poles that required a full, groundline excavation, Utilimap

and Duke Energy had concerns about whether the contract could be completed by

the target date of November 15, 2011. Utilimap transferred its inspectors from other

parts of the country to Southwest Ohio to get the job done. Those inspectors had not




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been a part of the initial training session given by Duke Energy. In November 2011,

Utilimap indicated that it had completed its inspections.

                                      B. Procedure

       {¶5}   Plaintiff filed an action against Duke Energy and Utilimap. Plaintiff

alleged that Duke Energy had a duty to ensure a safe workplace, and breached that

duty because it failed to take steps to address inaccurate and incomplete inspection

data from Utilimap and failed to inspect the pole. Plaintiff alleged that Utilimap was

negligent in performing its inspection.

       {¶6}   During the course of discovery, Duke Energy produced a PowerPoint

presentation that it had shown its employees following the incident.              The

presentation purported to outline factors that contributed to Jester’s death, as

uncovered in an investigation by Duke Energy’s “root cause” team. The PowerPoint

acknowledged that Duke Energy’s preclimb inspection standards, particularly in cold

weather, had been “missing key content.” Utilimap requested the final report and

analysis of the root-cause team (“the RCA report”), as well as any underlying

materials. Duke Energy refused to produce the RCA report, arguing that it was

protected attorney work product. The trial court reviewed the RCA report in camera

and denied Utilimap’s motion to compel.

       {¶7}   Duke Energy also produced documents from an audit that it had

conducted of Utilimap’s performance under the contract. David Bosse, the project

manager of the Utilimap contract, testified in his deposition that Duke Energy

conducted a random audit of four percent of the 30,000 poles at the end of 2011 and

the beginning of 2012. The audit revealed that some poles had not been inspected

properly, and others had not been inspected at all because of problems accessing

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poles. Some of those poles were over 20 years old, which, under the Utilimap

contract, would have required a below-ground inspection.

         {¶8}   At the close of discovery, Duke Energy moved for summary judgment,

arguing that Plaintiff had received workers’ compensation benefits, and no evidence

existed to support an intentional-tort claim. Plaintiff opposed the motion, but also

argued that in the event that the trial court granted Duke Energy’s motions,

Utilimap should be barred from raising the empty-chair defense provided under R.C.

2307.23.    Plaintiff also filed a motion in limine, and reiterated this argument.

Utilimap moved for summary judgment, in part arguing that it could not be held

liable for Jester’s injuries as a matter of law because climbing a pole is an inherently

dangerous activity.

         {¶9}   The trial court granted summary judgment to Duke Energy, finding

that no genuine issue of material fact existed as to whether an intentional tort had

been committed. The trial court denied summary judgment to Utilimap. The trial

court also granted Plaintiff’s motion in limine/counter-motion for partial summary

judgment and concluded that Utilimap was barred from raising the empty-chair

defense at trial, because no evidence existed that Duke Energy had been negligent.

With Duke Energy dismissed from the case, and Utilimap prohibited from arguing

an empty-chair defense under R.C. 2307.23, the case proceeded to a lengthy jury

trial.

         {¶10} At trial, Jason McWaters, the Utilimap inspector assigned to inspect

the subject pole, testified that he had attempted to inspect the pole in October 2011,

but he could not access the pole because it was located in a field of crops on private

property. Duke Energy required Utilimap inspectors to keep data on every pole, and


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                   OHIO FIRST DISTRICT COURT OF APPEALS


so McWaters noted in a data spreadsheet that the pole’s circumference was zero and

he wrote “bean field” in the comments section.           Neither McWaters, nor his

supervisor, Grady Breece, could recall whether they had told Duke Energy that they

could not access the pole, and neither Utilimap nor Duke Energy had kept records of

their 2011 communications.

       {¶11} Plaintiff presented expert testimony from a wood scientist who

testified that Utilimap would have discovered rot in the subject pole beginning six

inches below the groundline had it conducted an inspection of the pole in the fall of

2011. The pole would have been considered a priority pole.

       {¶12} Utilimap argued that Jester had been trained by Duke Energy to look

for green staining on a pole, which can be an indication of internal rot in a pole.

Jester should have seen the green staining on the subject pole and investigated

further by digging the ground out around the base of the pole. Plaintiff’s wood

expert refuted the notion that green staining would be a warning sign to a lineman

prior to climbing a pole. Utilimap also argued that Jester should have “guyed” the

pole or created a support a system for the pole, once the lines were taken down and

the pole began to lean.

       {¶13} Utilimap renewed its request to have the jury apportion fault to Duke

Energy, which the trial court denied. The jury determined that Jester was not

negligent and determined that Utilimap was 100 percent negligent.           The jury

ultimately returned a verdict for Plaintiff for nearly $28 million, including $24

million in noneconomic damages.          After the disposition of post-trial motions,

including Utilimap’s motion for a new trial, the trial court entered judgment on the

jury’s verdict. Utilimap has appealed.


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                     OHIO FIRST DISTRICT COURT OF APPEALS


                                       II. ANALYSIS

                               A. Assumption of the Risk

       {¶14} We first address Utilimap’s sixth assignment of error in which it

argues that the trial court erred in denying Utilimap judgment as a matter of law,

because pole climbing is an inherently dangerous activity and Jester assumed the

risk of poll collapse, so that Utilimap owed no duty to Jester. An appellate court

conducts a de novo review of issues of law, such as the application of the doctrine of

assumption of the risk. Cameron v. Univ. of Toledo, 2018-Ohio-979, 98 N.E.3d 305,

¶ 46 (10th Dist.).

       {¶15} Assumption of the risk is an affirmative defense to a negligence claim,

and it occurs, in general terms, when a person consents to a known risk. Anderson v.

Ceccardi, 6 Ohio St.3d 110, 112, 451 N.E.2d 780 (1983). With the adoption of

comparative negligence in Ohio, the Ohio Supreme Court in Anderson held that the

defense of implied assumption of the risk merged with the defense of contributory

negligence, except for express and primary assumption of the risk. Id. Express

assumption of the risk occurs when a person expressly agrees not to hold another

liable for negligence. Id. After Anderson, the Ohio legislature included express

assumption of the risk within the definition of contributory fault, except in products-

liability actions. See R.C. 2307.011(B).

       {¶16} Primary assumption of the risk occurs in situations where a certain

danger is “so inherent to the sport or activity that it cannot be eliminated.” Horvath

v. Ish, 134 Ohio St.3d 48, 2012-Ohio-5333, 979 N.E.2d 1246, ¶ 19. With primary

assumption of the risk, a defendant owes no duty to the injured person because of

the nature of the activity, and not because of any action or inaction on the part of the

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                    OHIO FIRST DISTRICT COURT OF APPEALS


defendant. Ferguson v. Cincinnati Gas & Elec. Co., 69 Ohio App.3d 460, 462, 590

N.E.2d 1332 (1st Dist.1990). Because Jester did not contract to release Utilimap

from liability, Utilimap must rely on primary assumption of the risk.

       {¶17} Primary assumption of risk requires a court to find “(1) the danger is

ordinary to the activity, (2) it is common knowledge that the danger exists, and (3)

the injury occurs as a result of the danger during the course of the activity.”

Cameron at ¶ 45. The Ohio Supreme Court has applied primary assumption of the

risk to recreational pursuits and sporting activities. See id. at ¶ 42; Horvath at ¶ 18-

19. Because assumption of the risk defeats a negligence claim, courts “must proceed

with caution when contemplating whether primary assumption of risk completely

bars a plaintiff’s recovery.” Gallagher v. Cleveland Browns Football Co., 74 Ohio

St.3d 427, 432, 659 N.E.2d 1232 (1996).

       {¶18} Utilimap argues that climbing a 40-year-old utility pole is inherently

dangerous and urges us to follow a federal district court case interpreting Ohio law,

Thayer v. GTE North, Inc., N.D. Ohio No. 3:91-cv-07276-JWP (Dec. 23, 1992). In

Thayer, an independent contractor was injured when a rotted telephone pole

collapsed on him. The contractor sued the company that owned the telephone pole.

The district court determined under R.C. 4101.11 that the telephone company owed

the contractor the same duty owed to that of an invitee. R.C. 4101.11 requires an

employer to furnish a safe workplace to its employees and “frequenters.” The duty

owed to frequenters under R.C. 4101.11, however, does not apply to an independent

contractor engaged in inherently dangerous work, pursuant to Eicher v. U.S. Steel

Corp., 32 Ohio St.3d 248, 512 N.E.2d 1165 (1987). The district court reasoned that




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                    OHIO FIRST DISTRICT COURT OF APPEALS


pole collapse was a hazard inherently and necessarily present in pole climbing, so

that the company owed no duty to the contractor under Eicher.

       {¶19} Eicher deals with premises liability and an employer’s duty to warn an

independent contractor of hazardous conditions on the property of which the

employer has knowledge but the contractor does not. Utilimap did not own or

control the premises where Jester was injured and Jester was not an independent

contractor. Therefore, the Eicher exception applied in Thayer cannot be used by

Utilimap to defeat Plaintiff’s negligence claim.

       {¶20} Nor did Jester assume the risk of pole collapse under the doctrine of

primary assumption of the risk.       Because Jester was killed while working, not

participating in a recreational or sporting activity, it is doubtful that the affirmative

defense of primary assumption of the risk applies in this situation. See Cameron,

2018-Ohio-979, 98 N.E.3d 305, at ¶ 42; Horvath, 134 Ohio St.3d 48, 2012-Ohio-

5333, 979 N.E.2d 1246, at ¶ 18-19.          Even so, Utilimap has not shown that

underground rot on a utility pole is the kind of danger “inherent” in utility work,

such that it cannot be eliminated. See Horvath at ¶ 19. Therefore, the trial court did

not err in denying Utilimap judgment as a matter of law.

       {¶21} We overrule Utilimap’s sixth assignment of error.

            B. The Empty-Chair Defense and an Immune Employer

       {¶22} In its first assignment of error, Utilimap argues that the trial court

erred in precluding the jury from apportioning any share of fault to Duke Energy as

required under R.C. 2307.23. Within this assignment of error, Utilimap also argues

that the trial court erred in granting Plaintiff’s counter-motion for partial summary




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judgment/motion in limine, prohibiting Utilimap from arguing the empty-chair

defense with regard to Duke Energy.

       {¶23} Ohio law provides for joint and several tort liability as well as

apportionment of fault among tortfeasors. See R.C. 2307.22. R.C. 2307.22 provides

in relevant part that:

               (A) * * *[J]oint and several tort liability shall be

               determined as follows:

               (1) In a tort action in which the trier of fact determines

               that two or more persons proximately caused the same

               injury or loss to person or property or the same wrongful

               death and in which the trier of fact determines that more

               than fifty per cent of the tortious conduct is attributable

               to one defendant, that defendant shall be jointly and

               severally liable in tort for all compensatory damages that

               represent economic loss.

               (2) If division (A)(1) of this section is applicable, each

               defendant who is determined by the trier of fact to be

               legally responsible for the same injury or loss to person

               or property or the same wrongful death and to whom

               fifty per cent or less of the tortious conduct is

               attributable shall be liable to the plaintiff only for that

               defendant’s proportionate share of the compensatory

               damages     that   represent     economic   loss.      The

               proportionate share of a defendant shall be calculated by


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              multiplying the total amount of the economic damages

              awarded to the plaintiff by the percentage of tortious

              conduct as determined pursuant to section 2307.23 of

              the Revised Code that is attributable to that defendant.

                                         ***

              (C) In a tort action in which the trier of fact determines

              that two or more persons proximately caused the same

              injury or loss to person or property or the same wrongful

              death, each defendant who is determined by the trier of

              fact to be legally responsible for the same injury or loss

              to person or property or for the same wrongful death

              shall be liable to the plaintiff only for that defendant’s

              proportionate share of the compensatory damages that

              represent noneconomic loss. The proportionate share of

              a defendant shall be calculated by multiplying the total

              amount of the noneconomic damages awarded to the

              plaintiff by the percentage of tortious conduct as

              determined pursuant to section 2307.23 of the Revised

              Code that is attributable to that defendant.

       {¶24} R.C. 2307.23, known as the “empty-chair defense,” provides that a jury

in a jury action must answer interrogatories to specify the following:

              (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


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              each party to the tort action from whom the plaintiff

              seeks recovery in this action;

              (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.

       {¶25} R.C. 2307.23(C) provides

              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.

       {¶26} “Persons from whom the plaintiff does not seek recovery in this action”

under R.C. 2307.23(A)(2), includes, but is not limited to:

              (1) Persons who have entered into a settlement

              agreement with the plaintiff;

              (2) Persons whom the plaintiff has dismissed from the

              tort action without prejudice;


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              (3) Persons whom the plaintiff has dismissed from the

              tort action with prejudice;

              (4) Persons who are not a party to the tort action

              whether or not that person was or could have been a

              party to the tort action if the name of the person has

              been disclosed prior to trial.

R.C. 2307.011(G).

       {¶27} In her counter-motion for summary judgment, Plaintiff argued that

R.C. 2307.23 could not apply to an employer’s negligence, because an employer

cannot be held liable for negligence with respect to an employee’s injuries under

Ohio’s workers’ compensation system.           See R.C. 4123.74.   For this proposition,

Plaintiff relied on Romig v. Baker Hi-Way Express, Inc., 5th Dist. Tuscarawas No.

2011AP-o2-0008, 2012-Ohio-321. In Romig, the defendant argued that the trial

court erred by refusing to introduce evidence of the injured person’s employer’s

negligence and by refusing to allow the defendant to argue the empty-chair defense.

The Romig court applied rules of statutory construction and determined that it could

not reconcile R.C. 2307.23 with the workers’ compensation scheme.             The court

reasoned that employer negligence does not exist, because the workers’

compensation system provides the employee’s exclusive remedy. Thus, the Romig

court affirmed the trial court’s refusal to allow the defendant to argue the empty-

chair defense under R.C. 2307.23 with respect to the injured’s employer.

       {¶28} We disagree with the analysis in Romig. The plain language of R.C.

2307.23 allows for a jury determination of fault among parties and nonparties. R.C.

2307.23 and 2307.011(G).      A nonparty to a negligence action could include an


                                            13
                    OHIO FIRST DISTRICT COURT OF APPEALS


employer entitled to workers’ compensation immunity.            The Eighth Appellate

District has also declined to follow Romig, determining that R.C. 2307.23 is

unambiguous, and that an immune employer can be included in apportionment

under R.C. 2307.23. See Root v. Stahl Scott Fetzer Co., 2017-Ohio-8398, 88 N.E.3d

980, ¶ 80 (8th Dist.); Fisher v. Beazer E., Inc., 8th Dist. Cuyahoga No. 99662, 2013-

Ohio-5251, ¶ 38 (“R.C. 2307.23 requires a jury to consider the percentage of tortious

conduct attributable to each person who proximately caused the injury or loss,

regardless of whether the plaintiff is seeking recovery or is able to seek recovery from

that person.”). As noted by the Eighth District, allowing for apportionment of fault

to an employer is consistent with the purpose of the apportionment statute “to

ensure that no defendant pays more than its fair share of plaintiff’s damages.” Root

at ¶ 78.

       {¶29} Plaintiff abandons its reliance on Romig on appeal. Therefore, we

determine that a defendant can raise the empty-chair defense with respect to an

injured’s employer under R.C. 2307.23, and a jury can apportion fault to that

employer under R.C. 2307.23. The question becomes then whether, in this case,

Duke Energy acted tortiously, and whether those actions proximately caused Jester’s

death. See R.C. 2307.23.

                         C. Evidence of Duke Energy’s Fault

       {¶30} R.C. 2307.23(A) and (C) contain the phrase “tortious conduct that

proximately caused the injury or loss.” In determining whether a person’s conduct is

tortious, the first step is whether that person owes the plaintiff a duty. Visintine &

Co. v. New York, C. & St. L. R. Co., 169 Ohio St. 505, 510, 160 N.E.2d 311 (1959).

Plaintiff argues in her appellate brief that Duke Energy had no duty to supervise


                                          14
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Utilimap, an independent contractor, under the contract or common law. The issue

of duty in this case is not what duty Duke Energy owed to Utilimap, but what duty

Duke Energy owed to Jester, its employee, and consequently to Plaintiff. Plaintiff’s

amended complaint asserts that Duke Energy had a nondelegable duty to ensure a

safe workplace for Jester. See R.C. 4101.11.

       {¶31} In Plaintiff’s motion prior to trial, Plaintiff argued that Utilimap

should be barred from arguing the empty-chair defense because Duke Energy had no

obligation under the 2011 Utilimap contract to review the inspection data from

Utilimap, and no evidence existed to show that Duke Energy had acted unreasonably.

The trial court agreed with Plaintiff and determined that the jury could not apportion

fault to Duke Energy under R.C. 2307.23, because Utilimap had not pointed to any

evidence in the record of Duke Energy’s negligence.

       {¶32} Whether an alleged tortfeasor is the proximate cause of an injury can

be determined as a matter of law in some instances. Reese v. Minor, 2 Ohio App.3d

440, 441, 442 N.E.2d 782, 783 (1st Dist.1981), citing Ornella v. Robertson, 14 Ohio

St.2d 144, 237 N.E.2d 140 (1968). It follows then that where no reasonable juror

could find an alleged tortfeasor at fault, the jury should not be instructed to

apportion fault to that person or entity under R.C. 2307.23. Conversely, where

reasonable minds could differ as to whether an alleged tortfeasor’s actions or

omissions proximately caused the plaintiff’s injury, negligence in that case is an issue

to be determined by the trier of fact. Simmers v. Bentley Constr. Co., 64 Ohio St.3d

642, 646, 597 N.E.2d 504 (1992); see O’Day v. Webb, 29 Ohio St.2d 215, 220, 280

N.E.2d 896 (1972) (“It is uncontestably the duty of a trial court to submit an essential

issue to the jury when there is sufficient evidence, if believed, relating to that issue to


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permit reasonable minds to reach different conclusions on that issue.”). Where a

reasonable juror could find an alleged tortfeasor negligent, the jury must be allowed

to consider that tortfeasor’s fault in accordance with R.C. 2307.23.

       {¶33} In response to Duke Energy’s motion for summary judgment on

Plaintiff’s intentional-tort claims, Plaintiff argued that Duke Energy acted negligently

and should be held liable, in part, for Jester’s death. Plaintiff cited to evidence from

a 2011 Duke Energy project manager, David Bosse, and documents produced by

Duke Energy in discovery, which showed that Duke Energy had performed a random

audit of Utilimap’s performance under the 2011 contract. Duke Energy completed

the audit in early 2012, and it included four percent of the 30,000 poles subject to

the 2011 contract. The audit documents showed that 20 poles had not been properly

inspected, including five poles assigned to Jason McWaters—the inspector assigned

to the subject pole. The audit revealed that some poles had not been inspected at all

because of access issues, such as vegetation.

       {¶34} Bosse conceded that the data Duke Energy received from Utilimap

showed that the subject pole had not been inspected. After Duke Energy’s audit

uncovered uninspected poles, Bosse could not recall whether Duke Energy had

further investigated any of those poles. At trial, Utilimap’s counsel cross-examined

Bosse regarding the audits and the inspection data.

       {¶35} Plaintiff argues that whether Duke Energy should have reviewed the

data it received from Utilimap requires expert testimony, because it is beyond the

scope of laypersons. Whether Duke Energy should have reviewed the data is not the

issue—Duke Energy did review portions of the data in its audit. What Duke Energy

should have done following its review of Utilimap’s inspection data is a question for


                                          16
                     OHIO FIRST DISTRICT COURT OF APPEALS


the jury. Because the purpose of the 2011 Utilimap contract was to identify decaying

or rotted utility poles, a reasonable juror could conclude that once Duke Energy had

completed its audit in 2012 and uncovered poles that had not been inspected, it

should have taken a further review of the inspection data it received from Utilimap,

prior to Jester’s death in 2014. A reasonable juror could also conclude that had Duke

Energy undertaken further review of the inspection data it had received from

Utilimap, it would have discovered the underground rot in the subject pole, as

Plaintiff’s expert testified.

       {¶36} Other evidence in the record would also lead a reasonable juror to

conclude that Duke Energy was at fault, including that on the day of Jester’s death,

the temperature was well below freezing, and that Duke Energy had not adequately

trained its linemen with regard to inspecting a pole in freezing conditions.

Furthermore, in the aftermath of Jester’s death, OSHA cited Duke Energy for various

violations of OSHA rules, and Duke Energy later settled with OSHA.

       {¶37} From this evidence, reasonable minds could differ as to whether Duke

Energy’s actions or inactions proximately caused Jester’s injuries. Therefore, the

trial court erred in granting summary judgment to Plaintiff with respect to Utilimap’s

empty-chair defense. It follows then that the trial court also erred in denying

Utilimap’s requests to include Duke Energy on the jury interrogatories and verdict

form under R.C. 2307.23. Because the jury could have apportioned some fault to

Duke Energy had Utilimap been able to fully present its empty-chair defense and had

the trial court granted Utilimap’s repeated requests to include Duke Energy in the

apportionment of fault, we cannot say that the trial court’s errors were harmless, and

therefore, a new trial is warranted. See Civ.R. 61.


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                    OHIO FIRST DISTRICT COURT OF APPEALS


       {¶38} We sustain the first assignment of error.

                D. The Remaining Assignments of Error are Moot

       {¶39} In its second assignment of error, Utilimap argues that the trial court

erred in excluding the RCA PowerPoint at trial. Related to its second assignment of

error, Utilimap argues, is its third assignment of error, asserting that the trial court

erred in denying its motion to compel the RCA report and underlying supporting

materials. Utilimap argues that the trial court’s errors with respect to the RCA

PowerPoint and motion to compel compromised Utilimap’s ability to try its case.

Utilimap’s fourth assignment of error asserts error in the trial court’s failure to order

a new trial based on an excessive damage award, and Utilimap’s fifth assignment of

error asserts error in the trial court’s failure to order a new trial based upon

irregularities in the proceeding.

       {¶40} Because we have determined that the trial court erred in granting

summary judgment to Plaintiff on Utilimap’s empty-chair defense, that the jury

should have been able to apportion fault to Duke Energy, and that therefore a new

trial is warranted, Utilimap’s remaining assignments of error are moot, and we

decline to address them. See App.R. 12(A)(1)(c).

                                     III. CONCLUSION

       {¶41} In conclusion, a defendant can raise the empty-chair defense with

respect to an injured’s employer under R.C. 2307.23, and a jury can apportion fault

to that employer under R.C. 2307.23, even if that employer is entitled to immunity

under the workers’ compensation statutes. Because a reasonable juror could have

found the immune employer Duke Energy negligent in regards to Jester’s death, the



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                    OHIO FIRST DISTRICT COURT OF APPEALS


defendant Utilimap should have been able to present evidence of Duke Energy’s

tortious conduct to the jury, and the jury should have been instructed to apportion

fault among Utilimap, Duke Energy, and Jester, in accordance with R.C. 2307.23.

The trial court erred in prohibiting Utilimap from presenting its empty-chair defense

with respect to Duke Energy.       We sustain Utilimap’s first assignment of error,

reverse the trial court’s judgment, and remand the cause for further proceedings.


                                                Judgment reversed and cause remanded.


MOCK, P.J., and BROGAN, J., concur.


JAMES A. BROGAN, retired, of the Second Appellate District, sitting by assignment.


Please note:

       The court has recorded its own entry on the date of the release of this opinion.




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