Akron-Canton Waste Oil, Inc. v. Safety-Kleen Oil Serv., Inc.

• Decision Date: 01 July 1992
• Docket Number: SAFETY-KLEEN,Nos. 15230,AKRON-CANTON,15298,s. 15230
• Citation: 81 Ohio App.3d 591,611 N.E.2d 955
• Parties: WASTE OIL, INC. et al., Appellees, v.OIL SERVICES, INC. et al., Appellants. *
• Court: Ohio Court of Appeals

Page 591

81 Ohio App.3d 591

611 N.E.2d 955

AKRON-CANTON WASTE OIL, INC. et al., Appellees, v. SAFETY-KLEEN OIL SERVICES, INC. et al., Appellants. ^*

Nos. 15230, 15298.

Court of Appeals of Ohio, Ninth District, Summit County.

Decided July 1, 1992.

James Recupero and William J. Cody, Akron, for appellees.

Elizabeth B. Manning, Akron, for appellants.

REECE, Judge.

Defendants-appellants, Safety-Kleen Oil Services, Inc., George Kaiser, Richard Duke (collectively "Safety-Kleen") and K-Mart Corporation ("K-Mart"), challenge the Summit County Court of Common Pleas' entry of judgment in favor of plaintiffs-appellees, Akron-Canton Waste Oil Company, Inc. and Fred Ambach (collectively "Akron-Canton Waste"), upon claims of defamation, tortious interference with business relations, unfair trade practices, and negligent and intentional infliction of emotional distress. Between them, Safety-Kleen and K-Mart have raised thirteen assignments of error.

The basic, background facts are not in dispute. Safety-Kleen and Akron-Canton Waste were competitors in the local waste oil market. Both enterprises collected used oil generated by garages, auto dealers, and lube shops to be resold to re-refiners and burners. The business was extremely competitive.

On December 8, 1987, an employee of a local Firestone automotive service center filed a theft report with the Akron Police Department. This individual alleged that someone named "Fred" of "Akron-Canton Waste Oil" took an unknown amount of waste oil from underground storage tanks. Soon thereafter, a Safety-Kleen agent was instructed by his depot manager to obtain a copy of the police report.

Fred Ambach ("Ambach"), the owner and operator of Akron-Canton Waste, came to believe that copies of the police report were being distributed to his customers by Safety-Kleen. He contacted the manager at Firestone and convinced him that the complaint should not have been filed. The Firestone manager had the report declared unfounded. Ambach's attorney then dispatched a letter to Safety-Kleen on December 31, 1987, demanding that the distribution of defamatory material cease. The area manager for the corporation, George Kaiser ("Kaiser"), received the correspondence and mailed a copy to the home office.

On August 18, 1988, Ambach stopped at the New Philadelphia K-Mart automotive service station to inquire whether he could collect any used waste oil to top off his load. A mechanic directed him to where the oil was stored and Ambach proceeded to pump two-hundred gallons into his truck. A K-Mart assistant manager, Christopher Gunner ("Gunner"), signed a receipt for the service.

The next day, the K-Mart loss prevention manager, Margaret Smith ("Smith"), learned that Akron-Canton Waste had collected the service department's used oil instead of the regular hauler. Upon the instructions of her district manager, she interviewed several employees and filed a complaint by phone with the New Philadelphia Police Department. Smith alleged that someone operating an Akron-Canton Waste truck had taken K-Mart oil without permission. She then prepared an investigation report, which was forwarded to her district manager.

Copies of both the police and investigation reports were sent to Kaiser at Safety-Kleen's request. Safety-Kleen employees thereafter distributed the K-Mart documents as well as the unfounded Firestone report to potential customers as part of their sales pitch. Ambach soon learned of this activity and was angered.

On August 21, 1989, Akron-Canton Waste filed its complaint against Safety-Kleen and K-Mart. An eight-day jury trial was conducted in June 1991 and a verdict was returned in favor of Akron-Canton Waste. A judgment was accordingly entered by the court on June 25, 1991. K-Mart was ordered to pay $23,750 in compensatory damages, while Safety-Kleen was assessed $251,250 in compensatory plus $300,000 in punitive damages.

This appeal by Safety-Kleen and K-Mart follows. The various assignments of error have been rearranged and consolidated where appropriate.

Safety-Kleen Assignment of Error II

"The court committed prejudicial error as a matter of law by permitting the lay witness opinion testimony of an ex-employee on the ultimate issue of the intention of the corporate defendant."

A former Safety-Kleen employee, Robin Johnston ("Johnston"), testified on behalf of Akron-Canton Waste. As a secretary, she performed a variety of duties in the Medina office and was in contact with the managers and corporate employees. Johnston claimed that she basically ran the facility during her two years there.

Johnston testified that one of her responsibilities was to take phone calls from customers who were concerned that their waste oil was missing. Because hazardous waste generators may be liable for the illegal dumping of their refuse, Johnston would advise them to file police reports to protect themselves. She had been instructed by her superiors at Safety-Kleen to request copies of any complaints that were lodged with the authorities. Anytime a police report involving stolen waste oil was received, Johnston would distribute copies to the Safety-Kleen drivers. The former secretary charged, over objection, that the intention of Safety-Kleen was to discredit its competitors.

Safety-Kleen contends on appeal that this damaging disclosure should not have been permitted. Given its superior vantage, the trial court enjoys broad discretion in the admission and exclusion of evidence and will not be reversed absent a clear abuse which has materially prejudiced an objecting party. State v. Hymore (1967), 9 Ohio St.2d 122, 128, 38 O.O.2d 298, 302, 224 N.E.2d 126, 130, certiorari denied (1968), 390 U.S. 1024, 88 S.Ct. 1409, 20 L.Ed.2d 281; Humphrey v. State (1984), 14 Ohio App.3d 15, 18, 14 OBR 18, 21, 469 N.E.2d 981, 985. An abuse of discretion connotes more than an error of law or judgment as it implies the court's attitude was unreasonable, arbitrary, or unconscionable. Steiner v. Custer (1940), 137 Ohio St. 448, 451, 19 O.O. 148, 149, 31 N.E.2d 855, 856; State v. Adams (1980), 62 Ohio St.2d 151, 157, 16 O.O.3d 169, 172, 404 N.E.2d 144, 148.

Citing Mitroff v. Xomox Corp. (C.A.6, 1986), 797 F.2d 271, Safety-Kleen argues that lay witnesses must never be allowed to render an opinion as to a corporation's intentions. The federal court's holding fell well short of the absolute prohibition Safety-Kleen advances. In Mitroff, the plaintiff was permitted by the district court judge to testify that an assistant personnel manager had told him that the employer-defendant routinely engaged in "age discrimination." The appeals court held that the plaintiff's remarks were inadmissible hearsay and, in any event, the comments attributed to the manager constituted improper legal conclusions which could be of no assistance to the jury. Id. at 276-277.

In the case sub judice, Johnston's testimony was based upon her own personal knowledge and did not constitute hearsay. Evid.R. 801(C). Additionally, the trial judge did not abuse his discretion by allowing her lay opinion concerning Safety-Kleen's intentions. Evid.R. 701 provides:

"If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (1) rationally based on the perception of the witness and (2) helpful to a clear understanding of his testimony or the determination of a fact in issue."

Johnston explained that her opinion was based upon her observations of and dealings with her superiors, Kaiser and Bruce McFadden. Her description of her job duties also allowed an inference that she would be in a position to know the reasons for the various practices of the corporation. We cannot dispute the trial judge's conclusion that Johnston's testimony as to Safety-Kleen's intentions would be helpful to the jury. Consequently, no abuse of discretion occurred. Steiner, supra.

Safety-Kleen further complains that its own witness, Kaiser, was not permitted to explain why he gave copies of the K-Mart police and investigation reports to customers. In the passage cited, however, the trial judge simply refused to allow Kaiser to discuss his supposedly altruistic motivations in general until he could pinpoint the dates and customers he was referring to. The defense was afforded ample opportunity through the course of the trial to establish why a waste oil generator would need to know if another collector was engaging in illegal activity.

This assignment of error is overruled.

Safety-Kleen Assignment of Error V

"The trial court committed prejudicial error as a matter of law in allowing the jury to award damages for tortious interference with contract and unfair trade practices in the absence of any evidence of actual loss or damage."

This court recognized the common-law tort of business interference in Juhasz v. Quik Shops, Inc. (1977), 55 Ohio App.2d 51, 9 O.O.3d 216, 379 N.E.2d 235. In Walter v. Murphy (1988), 61 Ohio App.3d 553, 573 N.E.2d 678, we modified the required analysis to conform with 4 Restatement of the Law 2d, Torts (1979) 20, Section 766B. That provision declares:

"One who intentionally and improperly interferes with another's prospective contractual relation (except a contract to marry) is subject to liability to the other for the pecuniary harm resulting from loss of the benefits of the relation, whether the interference consists of

"(a) inducing or otherwise causing a third person not to enter into or continue the prospective relation or

"(b) preventing the other from acquiring or continuing the prospective relation."

The term "contractual relation" includes not only formal agreements but encompasses advantageous business transactions in general. Id., Comment c.

The General Assembly has also supplied a civil remedy in R.C. 4165.03 for those "injured by a deceptive trade practice of another." R.C. 4165.02 states that:

"A person engages in a deceptive trade practice...