Gollihue v. Consolidated Rail Corp.

• Decision Date: 07 July 1997
• Docket Number: 14-96-24,Nos. 14-96-23,s. 14-96-23
• Citation: 697 N.E.2d 1109,120 Ohio App.3d 378
• Parties: GOLLIHUE et al., Appellees, v. CONSOLIDATED RAIL CORPORATION, Appellant. * GARRETT, Admr., Appellee, v. CONSOLIDATED RAIL CORPORATION, Appellant.*
• Court: Ohio Court of Appeals

Page 378

120 Ohio App.3d 378

697 N.E.2d 1109

GOLLIHUE et al., Appellees, v. CONSOLIDATED RAIL CORPORATION, Appellant. ^*

GARRETT, Admr., Appellee, v. CONSOLIDATED RAIL CORPORATION, Appellant.*

Nos. 14-96-23, 14-96-24.

Court of Appeals of Ohio,

Third District, Union County.

Decided July 7, 1997.

Leeseberg, Maloon, Schulman & Valentine Company, L.P.A., and Allen Schulman, Jr., Columbus, for appellees, Thomas Gollihue III et al.

Clark, Perdue, Roberts & Scott Co., L.P.A., and Paul O. Scott, Columbus, for appellee, Ada Garrett.

Vogelgesang, Howes, Lindamood & Brunn, Paul R. Reiners and Kimberly K. Wyss, Canton, for appellant.

THOMAS F. BRYANT, Judge.

Defendant-appellant, Consolidated Rail Corporation ("Conrail"), appeals from a judgment entered in the Union County Court of Common Pleas, awarding damages for wrongful death to plaintiff Ada Garrett, administrator of the estate of Bernard Garrett, and damages for personal injury to plaintiffs Thomas Gollihue and Cynthia Gollihue. Initially Garrett's wrongful death claim was filed separately from the Gollihues' personal injury case, but the cases were consolidated by the Union County Court of Common Pleas for purposes of trial. Therefore, because the appeals arise from a single trial, although the cases were separately appealed, briefed, and argued, this court will address the assignments of error and the issues in a single written opinion.

This case concerns a May 6, 1994, accident involving a Laidlaw sanitation truck and a Conrail train at the Converse Road crossing near the intersection of Converse and Currier Roads in Jerome Township, Union County, Ohio. Mr. Gollihue, a Laidlaw employee, was driving the sanitation truck, and Mr. Garrett was riding as a passenger. The two men were traveling south on Currier Road, which runs parallel to a Conrail railroad track. When the truck reached the intersection of Currier Road and Converse Road, Gollihue stopped at the stop sign and proceeded to make a right turn towards the railroad tracks. Gollihue then drove approximately thirty-three feet, and, as the truck pulled over the tracks, it was struck by a Conrail train traveling south at approximately fifty miles per hour.

As a result of the collision, Bernard Garrett was fatally wounded, and Thomas Gollihue sustained permanent injuries. Ada Garrett and Thomas and Cynthia Gollihue then commenced actions in the Union County Common Pleas Court seeking to recover damages from Conrail, as a result of, inter alia, Conrail's alleged negligent failure to properly guard and maintain the Converse Road crossing. In addition to their negligence claims, both Mrs. Garrett and the Gollihues filed punitive damages claims against Conrail. Further, Mrs. Gollihue filed a derivative claim seeking to recover for loss of consortium.

Conrail moved for summary judgment on the grounds that the claim of inadequate signals had been preempted by federal law and that the undisputed evidence did not support the punitive damages claims. Conrail also filed a motion in limine to preclude evidence of subsequent remedial measures, specifically the subsequent installation of active warning devices at the Converse Road crossing. The trial court denied Conrail's motion for summary judgment but granted its motion in limine. The consolidated case then proceeded to trial on the claims of inadequate signals and punitive damages.

On May 3, 1996, the jury returned a verdict for the plaintiffs. It awarded the Gollihues compensatory damages of $1,500,000 and punitive damages of $2,000,000 and Ada Garrett compensatory damages of $2,007,000 on her wrongful death claims and punitive damages of $6,000,000 on her claims for property damage. On May 17, 1996, the Union County Court of Common Pleas entered judgments for the plaintiffs in the amount of the requested verdicts plus costs and interest from the date of judgment. By judgment entry of June 3, 1996, the court denied Conrail's posttrial motions for judgment notwithstanding the verdicts and for a remittitur.

It is from this judgment that Conrail appeals, citing the following assignments of error:

"I. The trial court erred in allowing evidence that the Public Utilities Commission of Ohio, after the accident, had selected the subject grade crossing for installation of active warnings.

"II. The trial court erred in denying Conrail's motion for summary judgment where the federal laws governing railroad safety expressly preempt the state common law on which plaintiffs base their claim that Conrail negligently failed to install automatic gates and flashing lights.

"III. The trial court erred in holding Conrail to an 'ordinary care' standard, and in permitting punitive damages to be imposed under that standard, based on a case that (1) did not overrule existing law that a railroad's duty to install active warning devices arises only at extra-hazardous crossings and (2) was decided after the accident at issue.

"IV. The trial court erred in denying Conrail's motion for judgment notwithstanding the verdict without opinion and violated Conrail's procedural due process rights.

"V. The trial court erred in refusing to order a remittitur of the punitive damages award where that award, in an amount 60,000 times greater than the compensatory damage award, violates Ohio common law, the Due Process Clause of the United States Constitution, and Ohio's statutory prohibition on punitive damages in wrongful death cases."

I Subsequent Remedial Measures

In its first assignment of error, Conrail argues that the trial court permitted the admission of evidence in violation of Evid.R. 407. Specifically, the court allowed plaintiffs to introduce evidence demonstrating that after the collision, the Public Utilities Commission of Ohio ("PUCO") upgraded the crossing and ordered the installation of active traffic warning devices. Since the sole issue before the jury was whether Conrail was liable for failing to install active warning devices at this crossing, appellant argues that the court committed prejudicial error in permitting testimony regarding subsequent remedial measures to be admitted as evidence of Conrail's negligence.

After the collision at the Converse Road crossing, PUCO ordered Conrail to proceed with the installation of active warning devices at this intersection. At the time of the collision, the crossing was equipped with passive traffic control devices consisting of railroad advance warning signs and "Buckeye crossbucks." The crossbucks are dual-paneled red and white striped shields mounted on posts with the word "YIELD" printed vertically down the center of the shields. No active devices such as flashing lights or gates existed at the crossing at the time of the collision.

While the PUCO had selected the grade crossing for the installation of active warnings after the collision, at the time of the trial the active warning devices had not been installed. In the interim, however, the Ohio Department of Transportation ordered the installation of additional stop signs at the crossing. Conrail filed a motion in limine to preclude "plaintiff, plaintiff's counsel, or any witness called by plaintiff from mentioning or alluding to the installation of a stop sign or planned installation of flashers and gates at the Converse Road Crossing subsequent to the collision."

In support of this motion, Conrail cited Evid.R. 407 and argued that the introduction of evidence regarding the subsequent remedial measures would be extremely prejudicial and improper because it would imply that the failure to install active warning devices before the collision constituted negligence by the defendant. While the court agreed with Conrail's argument and granted its motion, during trial the court reconsidered this issue and permitted the introduction of evidence regarding the PUCO's subsequent selection of the Converse Road crossing for an upgrade to active traffic warning devices. The trial court explained that the evidence of the PUCO's decision would be admissible because Conrail opened the door to the admission of the evidence in its cross-examination of plaintiff's witness, Joseph Reinhardt.

Reinhardt, a project coordinator for the PUCO, was questioned by appellant's counsel as follows:

"Q. Does the Public Utilities Commission work with Conrail with respect to upgrading crossings?

"A. Yes, sir.

"Q. How does that work? Tell the ladies and gentlemen of the jury what the PUCO and Conrail do.

"A. We do have a handful of programs active within the State of Ohio. The primary program that I coordinate is based on a database which I receive from Washington, D.C., which helps identify crossings for, potential crossings for lights and gates. * * *

"Q. Do you ever personally meet with any of the Conrail employees with respect to making decisions about which crossings are going to be upgraded, and which crossings are not?

"A. Yes.

"Q. Is the basic decision made upon a determination to upgrade most dangerous crossings first, and work down the list?

"A. Yes, sir.

"Q. How many crossings have been upgraded since the program has been initiated?

"A. I have upgraded approximately 700 crossings."

Thereafter, appellant's counsel questioned the witness further regarding the amount of Conrail crossings that had been upgraded and Conrail's active participation in the upgrade process. When the defense ceased questioning Reinhardt, plaintiff asked the court for leave to question him on redirect regarding whether the crossing at Converse and Currier Roads had been selected for an upgrade by the PUCO. Plaintiff argued that Conrail had opened the door for this line of questioning by inquiring about the PUCO's system of prioritizing crossings. The court agreed and permitted the following line of questioning:

"Q. Will you tell these ladies and gentlemen of the jury whether this crossing at Converse and Currier roads has been ordered to be upgraded to flashing lights and gates by the State of Ohio?

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