Grabill v. Worthington Industries, Inc.

• Decision Date: 17 November 1994
• Docket Number: Nos. 94APE04-595,94APE05-636,94APE05-668 and 94APE05-702,s. 94APE04-595
• Citation: 649 N.E.2d 874,98 Ohio App.3d 739
• Parties: GRABILL, Appellant, v. WORTHINGTON INDUSTRIES, INC. et al., Appellees. * TITUS, Admr., Appellant, v. COLUMBUS SOUTHERN POWER COMPANY et al., Appellees.* CLAYTOR, Appellant, v. WORTHINGTON INDUSTRIES, INC. et al., Appellees.* Thomas MOORE et al., Appellants, v. COLUMBUS SOUTHERN POWER COMPANY et al., Appellees.*
• Court: Ohio Court of Appeals

Page 739

98 Ohio App.3d 739

649 N.E.2d 874

GRABILL, Appellant, v. WORTHINGTON INDUSTRIES, INC. et al., Appellees. ^*

TITUS, Admr., Appellant, v. COLUMBUS SOUTHERN POWER COMPANY et al., Appellees.* CLAYTOR, Appellant, v. WORTHINGTON INDUSTRIES, INC. et al., Appellees.* Thomas MOORE et al., Appellants, v. COLUMBUS SOUTHERN POWER COMPANY et al., Appellees.*

Nos. 94APE04-595, 94APE05-636, 94APE05-668 and 94APE05-702.

Court of Appeals of Ohio, Tenth District, Franklin County.

Decided Nov. 17, 1994.

Butler, Cincione, DiCuccio & Dritz, Matthew P. Cincione and Stanley B. Dritz, Columbus, for appellant Jeffrey L. Grabill.

Hamilton, Kramer, Myers & Cheek, and Austin P. Wildman, Columbus, for appellee Worthington Industries, Inc.

Michael F. Colley Co., L.P.A., and Daniel N. Abraham, Columbus, for appellant Patricia L. Titus, individually and as the adm'r of the Estate of Terry L. Titus, deceased.

Porter, Wright, Morris & Arthur, and Joseph W. Ryan, Jr., Columbus, for appellee Columbus Southern Power Co.

McCarthy, Palmer, Volkema, Boyd & Thomas, and Jeffrey D. Boyd, Columbus, for appellant Ellen J. Claytor.

Spangenberg, Shibley, Traci, Lancione & Liber, John G. Lancione, Robert V. Traci and John R. Liber, II, Cleveland, for appellants Thomas Moore et al.

JOHN C. YOUNG, Judge.

This matter is before this court upon the appeals of Thomas and Sharry Moore, Willard and Adeline Tackett, Patricia L. Titus, Administrator, Ellen J. Claytor, Administrator, and Jeffrey L. Grabill, appellants, from the April 9, 1993 decision and May 4, 1993 entry granting summary judgment in favor of appellees, Columbus Southern Power Company ("CSP") and American Electric Power Company, Inc. ("AEP"). On appeal, we find that the assignments of error set forth by each appellant are interrelated in that all of the appellants argue that summary judgment was improper.

The history of this case is as follows: On September 25, 1989, Terry L. Titus, Howard Claytor and Gregory Donohew were electrocuted when the scaffolding that they were moving came in contact with a transmission line owned, operated and maintained by CSP and AEP. ¹ Willard Tackett, Thomas Moore and Jeffrey Grabill were also seriously injured. Several lawsuits were filed against CSP and AEP as a result. Through an agreement of the parties, the cases were consolidated by entry dated December 2, 1991. CSP and AEP, appellees, moved for summary judgment and, on May 4, 1993, a judgment entry was filed which granted appellees' motion and dismissed CSP and AEP with prejudice. Each of the appellants filed a notice of appeal to this court. On appeal, the appeals of the parties in case Nos. 94APE05-668, 94APE04-595 and 94APE05-636 were consolidated with case No. 94APE05-702.

In granting summary judgment in favor of appellees, the trial court focused on the foreseeability of this accident and whether or not the appellees could have "reasonably anticipated" the injuries which resulted when the scaffolding came into contact with a high voltage line of 69,000 volts. The court found that reasonable minds could only conclude that appellees could not have foreseen this accident. Specifically, the court found that the power lines in question were located approximately thirty feet east of the east wall of the warehouse. It further found that there was no evidence in the record to indicate that appellees' acts or omissions actually placed appellants in danger of coming into contact with the power lines.

In reviewing this case, we are mindful that summary judgment is proper when 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, such party being entitled to have the evidence or stipulation construed most strongly in its favor. Civ.R. 56(C); Lytle v. Columbus (1990), 70 Ohio App.3d 99, 103, 590 N.E.2d 421, 424. Thus, appellees must demonstrate that reasonable minds could only conclude that appellees met the requisite standard of care, and that the accident in question was unusual and unforeseeable, and was not within the range of reasonable probability. Brauning v. Cincinnati Gas & Elec. Co. (1989), 54 Ohio App.3d 38, 560 N.E.2d 811.

Appellants, on the other hand, must produce evidence for any issue for which they would bear the burden of production at trial. Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108, 570 N.E.2d 1095, paragraph three of the syllabus. This court has adopted the rationale in Wing and, therefore, appellants must affirmatively demonstrate the facts which would entitle them to relief. Baughn v. Reynoldsburg (1992), 78 Ohio App.3d 561, 605 N.E.2d 478. In a negligence case, such as this, appellants must affirmatively demonstrate that appellees owed them a duty, requiring appellees to conform their conduct to a certain standard, that this duty was breached, and that such breach was the proximate cause of appellants' injuries. Brauning, supra.

The parties agree that the applicable standard of care has been set forth in Hetrick v. Marion-Reserve Power Co. (1943), 141 Ohio St. 347, 25 O.O. 467, 48 N.E.2d 103, as follows:

"A power company erecting and maintaining * * * poles and wires, * * * for the purpose of transmitting and distributing electrical current, is bound to exercise the highest degree of care consistent with the practical operation of such * * * and is responsible for any conduct falling short of that standard." (Emphasis added.) Id. at paragraph two of the syllabus.

Thus, we must determine if reasonable minds could only conclude that appellees exercised the highest degree of care.

Appellees cite several cases wherein the National Electric Safety Code ("NESC") appears to be the standard of care used by the courts to determine whether or not a utility company exercised the "highest degree of care." Clearly, compliance with the NESC was a significant factor in the court's decision in Hetrick. See, also, Otte v. Dayton Power & Light Co. (1988), 37 Ohio St.3d 33, 523 N.E.2d 835. However, several courts have also found that compliance with the NESC is not necessarily dispositive of the issue of whether an electric company exercised the highest degree of care. Brauning, supra; Fortman v. Dayton Power & Light Co. (1992), 80 Ohio App.3d 525, 609 N.E.2d 1296.

We agree with the reasoning of several courts of this state, in that we do not find compliance with the NESC dispositive of the issue of liability. As the Brauning court noted, foreseeability of the occurrence was also important in determining whether or not liability existed. Thus, even if an electric company complied with the NESC, if the plaintiff was injured and the injury could have been anticipated with a reasonable degree of probability, the utility company could be held liable. Brauning, supra, 54 Ohio App.3d at 42-43, 560 N.E.2d at 815-816. Similarly, the court in Fortman, supra, stated that:

" * * * Cases subsequent to Hetrick have held or noted in dicta that the utility may be negligent even though it complies with the NESC, where an injury might have been anticipated with a reasonable degree of probability." (Citations omitted.) Id., 80 Ohio App.3d at 530, 609 N.E.2d at 1299.

Appellees also argue that the NESC standards are suspended during construction and that the ten-foot rule found in Section 1926, Title 29, C.F.R. and Ohio Adm.Code 4121:1-3-07(E) applies. We would note that Section 1926, Title 29, C.F.R. falls under the title of "Labor" and Ohio Adm.Code 4121:1-3-07(E) is a workers' compensation statute, specifically pertaining to a VSSR (Violation of a Specific Safety Requirement). Both of these sections appear to discuss the employer/employee relationship and the obligations and responsibilities that arise out of that relationship in working close to a transmission line. In the instant action, AEP/CSP is not the employer of appellants, and, accordingly, we do not find these sections dispositive of the issue of appellees' liability.

Thus, regardless of which standard applies, the thirty-foot standard of the NESC, or the ten-foot rule as argued by appellees, compliance with these measurements alone is not dispositive of the issue of whether or not appellees exercised the highest degree of care. We are not convinced that reasonable minds could only conclude that appellees exercised the highest degree of care. Moreover, we must also consider the question of whether this occurrence was so unusual that it could not fairly have been anticipated or foreseen. Hetrick posed this question: "This * * * brings us to a consideration of the question whether the defendant was negligent in failing to reasonably anticipate such a result." Id., 141 Ohio St. at 358, 25 O.O. at 472, 48 N.E.2d at 108. The court, in Hetrick, then went on to define "reasonable anticipation" as follows:

"In 1 Shearman and Redfield on Negligence (Rev.Ed.), 50, Section 24, in discussing the doctrine of reasonable anticipation, it is said:

" 'Foresight, not retrospect, is the standard of diligence. It is nearly always easy, after an accident has happened, to see how it could have been avoided. But negligence is not a matter to be judged after the occurrence. It is always a question of what reasonably prudent men under the same circumstances would or should, in the exercise of reasonable care, have anticipated. Reasonable anticipation is that expectation created in the mind of the ordinarily prudent and competent person as the consequence of his reaction to any given set of circumstances. If such expectation carries recognition that the given set of circumstances is suggestive of danger, then failure to take appropriate safety measures constitutes negligence. On the contrary, there is no duty to guard when there is no danger reasonably to be apprehended. Negligence is gauged by the ability to anticipate. Precaution is a duty only so far as there is reason for apprehension. Reasonable apprehension does not include anticipation of...