Charles Keeton, Ii v. Telemedia Co. of Southern Ohio, 94-LW-1221
| Decision Date | 04 November 1994 |
| Docket Number | 93CA2164,94-LW-1221 |
| Parties | CHARLES KEETON, II, Plaintiff-Appellant v. TELEMEDIA COMPANY OF SOUTHERN OHIO, et al., Defendants-Appellees Case |
| Court | Ohio Court of Appeals |
Cloppert Portman, Sauter, Latanick & Foley, Mark A. Foley and Nancy E Leech, Columbus, Ohio, for Appellant.
Wiles, Doucher, VanBuren & Boyle Co., L.P.A., David T. Patterson and Jumana E. Trad, Columbus, Ohio, for Appellee, Telemedia Company of Southern Ohio.
DECISION
This is an appeal from a judgment entered by the Common Pleas Court of Scioto County directing a verdict pursuant to Civ.R. 50 in favor of Telemedia Company of Southern Ohio, defendant below and appellee herein, on the claims brought against it by Charles Keeton, II, plaintiff below and appellant herein.[1] The following error is assigned for our review:
"WHERE THE PLAINTIFF PRESENTS SUBSTANTIAL COMPETENT EVIDENCE UPON WHICH REASONABLE MINDS MAY REACH DIFFERENT CONCLUSIONS REGARDING THE LIABILITY OF THE DEFENDANT IN A NEGLIGENCE ACTION, IT IS WITHIN THE PROVINCE OF THE JURY TO DETERMINE WHETHER THE DEFENDANT WAS INDEED LIABLE FOR THE FAILURE TO DISCHARGE A DUTY OWED TO THE PLAINTIFF."
The record reveals the following facts pertinent to this appeal. Appellant was hired by Century Cable Television during the summer of 1987 and was employed by that company as an "installer." An "installer" was described as one who connects a line from a "main feeder cable" outside a home to the television set located therein so that cable TV signals can be received. On July 1, 1988, between 9:30 aid 10 a.m., appellant climbed a pole located at the corner of Oak and Maple Streets in the "Riggerish Addition" in, Ohio, to facilitate such an installation from the cable strung at the top of said pole. While working, another cable strung at the top of the pole and owned by appellee came loose and struck him on the right side of the face and head causing injury.
Appellant commenced the action below on April 7, 1992, alleging that appellee had negligently attached and secured its cable to the aforementioned pole and that such misfeasance had been the proximate cause of the said cable breaking loose and striking him. Appellant further averred that he suffered numerous permanent injuries as a result of this incident, as well as great physical pain and emotional distress for which he was seeking compensatory damages. Appellee answered denying all liability. The matter was bifuracted and came on for jury trial on July 15, 1993, solely with respect to the e of liability. At the conclusion of appellant's case in chief, appellee moved for a directed verdict. The lower court sustained said motion the following day and a judgment entry to that effect was filed.[2] This appeal followed.[3]
Our analysis begins by noting that a directed verdict may be granted by a trial court on the evidence pursuant to a properly made motion under Civ.R. 50(A). A motion for directed verdict requires the trial court to construe the evidence most strongly in the favor of the non-moving party and the motion will not be granted unless reasonable minds could come to but one conclusion and that conclusion is adverse to said non-moving party. See Clark v. Southview Hosp. v. Family Health Ctr. (1994), 68 Ohio St.3d 435, 438; Wise v. Timmons (1992), 64 Ohio St.3d 113, 116; Hawkins v. Ivey (1977), 50 Ohio St.2d 114, 115. This requires that the trial court give the non-moving party the benefit of all reasonable inferences that may be drawn from the evidence. See Broz v. Winland (1994), 68 Ohio St.3d 521, 526. In ruling on a motion for directed verdict, the trial court must determine whether there exists any evidence of substantial and probative value to support the party's claim. See Hargrove v. Tanner (1990), 66 Ohio App.3d 693, 695; Fitzgerald v. Mayfield (1990), 66 Ohio App.3d 298, 306. This is a question of law rather than a question of fact, Bentley v. Stewart (1992), 71 Ohio App.3d 510, 512; Kobza v. General Motors Corp. (1989), 63 Ohio App.3d 742, 746; Baum v. Augenstein (1983), 10 Ohio App.3d 106, 107, as it tests the legal sufficiency of evidence rather than its weight or the credibility of witnesses. See Jaworowski v. Med. Radiation Consultants (1991), 71 Ohio App.3d 320, 333; First Fed. Sav. Bank v. WSB Investments, Inc. (1990), 67 Ohio App.3d 277, 281. Accordingly, an appellate court conducts its own independent review of the lower court's judgment of directed verdict. See Mulford v. Cols. & So. Ohio Electric Co. (Jun. 7, 1994), Athens App. No. 92CA1548, unreported at 5 (Entry on Application far Reconsideration). We now turn to applying these principles in the cause
The evidence adduced below reveals that the pole, on which appellant was working at the time he received his injuries, is owned by GTE. The evidence also indicates that several other companies make that pole for stringing cables. Mr. Fred Strayer, outside plant engineering supervisor for GTE in Portsmouth, Ohio, testified that the pole in question had replaced another, smaller, pole in 1987 at the request of the Ohio Power Company which needed a larger structure. Mr. Strayer further testified that the other companies using the GTE poles were notified to transfer their cables to the new pole and, if such transfer was not made by a set time, GTE would transfer them and charge the other companies. Although the precise date that the new pole was installed is unknown, the work was completed by GTE between August 30, 1987, and November 19, 1987. Formal written notice was sent to appellee both on November 19th and as part of a December, 1987, "recap." Mr. Strayer conceded, however, that he had no idea when the transfer of appellee's cable to the new pole was made or who actually transferred it. The witness speculated that it was probably done by an independent contractor hired by GTE.
Appellant testified below and identified the cable which came loose and struck him in the head as being the one owned by appellee. Appellant was unable to state precisely how that cable had been attached to the pole just before the accident and, thereafter, the cable "dropped to about three [3] foot off the ground." The evidence showed that appellant returned to the ground and called Century Cable for help. Mr. Bruce Harris, a technician with Century Cable, was nearby and came to his assistance. Mr. Harris testified below that, before taking appellant to the hospital, he observed that appellee's cable "had come away from the pole" and that a "large metal staple" was still attached thereto. The witness further stated that he returned to the scene after taking appellant to the hospital in order to make sure that the work begun had been completed. Mr. Harris observed that there had never been any "permanent" attachment of appellee's cable to the pole.
The uncontroverted evidence below was that the "industry standard" for attaching this sort of a cable to a pole is by use of a "3 bolt clamp." The use of a large metal staple to accomplish such a task would not be within industry guidelines. This was even conceded by Mr. Wayne Harrison, a representative of appellee, who admitted that the use of a staple was not sufficient to make a "permanent" attachment. Nevertheless, Mr. Harrison stated that "[t]he use of a staple is a secure attachment."
Appellant argues in his assignment of error that this was sufficient competent evidence to survive a motion for directed verdict and have the issue of liability go to the jury. We agree. Liability for negligence in Ohio is predicated upon injury caused by the failure of the tortfeasor to discharge a duty owed to the injured party. Fryberger v. Lake Cable Recreation Assn. Inc. (1988), 40 Ohio St.3d 349, 351; Wills v. Frank Hoover Supply (1986), 26 Ohio St.3d 186, 188. Thus, the questions we must resolve In this case are (1) whether one cable company owes a duty of care to the employee of another cable company under the facts of this case and, if so, (2) was there sufficient evidence for the jury to determine if there had been a breach of that duty.
The first of these two questions is answered in the affirmative. Companies which make joint use of a wooden pole for purpose of carrying wires owes the same duty to the employees of the other company as it does to its own employees. Cincinnati Gas & Electric Co. v. Archdeacon (1909), 80 Ohio St. 27, 39. That duty is to exercise "due care" for the employees safety. Arnold v. Ohio Gas & Electric Co. (1928), 28 Ohio App. 434, 439. There is little in the way of case law to define the parameters of that duty. Generally speaking, however, companies must exercise due or reasonable care in the maintenance and construction of lines, equipment and apparatus and will be liable for injuries proximately resulting from failure to use such care. See 88 Ohio Jurisprudence 3d (1989) 235, Telecommunications, Section 137; 86 Corpus Juris Secundum (1954) 60-61, Telephone, Telegraph, Radio and Television, Section 46. Companies also have a duty to make inspection for faulty equipment and will be liable for injury by faulty equipment which they allow to remain out of repair after reasonable notice. 74 American Jurisprudence 2d(1974) 354, Telecommunications, Section 41. These responsibilities are operative primarily with respect to the general public. However, the employees of one cable company deserve no less protection when they are working around the lines and equipment of another cable company making joint use of the same utility pole.
Having determined that appellee bore a particular duty of care toward appellant, it is now necessary to determine whether there was sufficient evidence adduced below for a reasonable jury to conclude that there had been a breach of that duty. We also answer this...
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