Klem v. Consol. Rail Corp..

• Decision Date: 16 July 2010
• Docket Number: No. L–09–1223.,L–09–1223.
• Parties: KLEM, Appellant,v.CONSOLIDATED RAIL CORPORATION et al., Appellees.
• Court: Ohio Court of Appeals

191 Ohio App.3d 690

947 N.E.2d 687

2010 -Ohio- 3330

KLEM, Appellant,

v.CONSOLIDATED RAIL CORPORATION et al., Appellees.

No. L–09–1223.

Court of Appeals of Ohio, Sixth District, Lucas County.

Decided July 16, 2010.

E.J. Leizerman and Michael Jay Leizerman, Toledo, for appellant.Thomas J. Antonini, Toledo, for appellees.COSME, Judge.

[Ohio App.3d 696] {¶ 1} Appellant, John Klem, appeals the judgment of the Lucas County Common Pleas Court, asserting that the trial court erred in refusing to grant him judgment notwithstanding the verdict and denying him leave to amend the complaint. Klem asserts that the trial court committed prejudicial error by failing to properly instruct the jury, refusing to allow a witness to testify, and refusing to dismiss jurors for cause. For the reasons that follow, we affirm in part, reverse in part, and remand for a new trial.

{¶ 2} This case arises under the Federal Employer's Liability Act, Section 51, Title 45, U.S.Code, et seq. (“FELA”), and the Locomotive Inspection Act, Section 20701, Title 49, U.S.Code, et seq. (“LIA”). Klem alleges that during his employment with appellant, Consolidated Rail Corp. (“Conrail”), the locomotive he was operating had an independent brake that was not in working condition and was not safe to operate. Klem claims that he was injured when he tried to release the defective independent brake. The jury returned a verdict in favor of Conrail.

I. BACKGROUND

{¶ 3} On November 10, 2003, Klem, a veteran locomotive engineer, was assisting other Conrail employees in putting together a train for Marathon Oil at the Conrail facility in River Rouge, Michigan. While moving the locomotive, Klem noticed that the track switch indicated that the tracks were misaligned. Because of the danger of derailment, Klem needed to immediately stop the locomotive. When Klem attempted to release the independent brake, it became stuck and he suffered serious injury to his thumb.

{¶ 4} Klem asserted that the independent brake malfunctioned when it locked up. He described the occurrence: “So I get moving up to about eight miles an hour and then I knock the throttle off, because I'm seven, eight, I don't know exactly. * * * And as soon as I see it, I tried to slap on it [the independent brake] and it goes about that far * * * And I had a sharp pain go up—the pain was so intense in my hand I believe it passed my elbow. Not even sure.”

{¶ 5} After the independent brake became stuck or got “caught up,” Klem tried the brake again and was eventually able to move it into position to stop the locomotive. After Klem reported his injury and the trouble with the independent brake, several other Conrail employees came on board to see what the problem [Ohio App.3d 697] was. They were able to release the independent brake only with some difficulty. The conductor, Ralph Sturgall, had it jam up on him. The trainmaster, Thomas Szpond, and the engine maintainer, Roy Duhadway, tried unsuccessfully to work it. They also attempted to fix the independent brake. Because they were unable to repair it, the locomotive was placed “out of service” and “blue-flagged.” The records do not reflect whether the independent brake was repaired or replaced, but they clearly state that there had been some difficulty in using it. The problem was described in the written reports as a “hesitation.”

{¶ 6} Like the other Conrail employees, Duhadway could not recall details of the incident, but he acknowledged that someone else had written “hesitation” on the form and given it to him to sign. Duhadway conceded that “hesitation” could mean that the independent brake was not working normally.

{¶ 7} Prior to the incident, no issues had been reported with respect to the locomotive. It had been inspected on a regular basis and all the paperwork was in order, suggesting no history of problems or issues with the independent brake. There remains some question as to whether the locomotive was actually repaired. Conrail's copy of the locomotive-inspection report noted that the locomotive was shipped later that month (presumably as a result of the incident) to Maryland for repair. Klem's copy of the report, which was given to him during discovery, contained no such notation that the locomotive was to be repaired.

{¶ 8} As a result of the injury, Klem filed suit under the FELA and the LIA, alleging that the locomotive was not in working condition and was not safe to operate. Klem's amended complaint contained two claims for cumulative trauma to his back and other body parts and two claims for injuries arising out of the November 10, 2003 incident.

{¶ 9} Klem and Conrail filed opposing motions for summary judgment. Conrail asked that Klem's first and second claims, for cumulative-trauma injuries to his back and other body parts, be dismissed, asserting that Klem had failed to submit any evidence that Conrail was negligent under FELA or that defendants had violated any regulation of the LIA. Klem argued that the deposition of Dr. Todd Jaeblon raised genuine issues of material fact. Conrail countered that the deposition was speculative and conclusory and should be stricken. The trial court agreed with Conrail, dismissing Klem's first and second claims.

{¶ 10} Klem's motion for summary judgment addressed the third and fourth claims, for injury arising from the November 10, 2003 incident, asserting that the independent brake was defective and that Conrail is strictly liable under the LIA. Conrail countered that the locomotive was not “in use” at that time and that the alleged defect did not create an unnecessary danger of personal injury. The trial court held that the locomotive was “in use” at the time of the November 10, 2003 accident and that the accident was the cause of Klem's injuries. However, the [Ohio App.3d 698] trial court also held that genuine issues of material fact existed as to whether the alleged defect created an unnecessary danger of personal injury. Therefore, the only issue before the jury, according to the trial court, was whether Conrail had breached its duty to keep the independent brake in proper condition and safe to operate without unnecessary danger of personal injury.

{¶ 11} At trial, Duhadway admitted that the locomotive's independent brake “was not working as intended.” Asserting that the testimony reflected that the independent brake had not been functioning properly and was binding upon Conrail, Klem moved for a directed verdict at the close of Conrail's case. The trial court denied the motion. Klem also asked that the trial court include an instruction that mirrored Section 229.46, Title 49, C.F.R., a specific regulation concerning the condition of the independent brake under the Federal Railroad Administration (“FRA”). Klem argued that the testimony made clear that the independent brake did not “operate as intended.” The trial court refused to include that instruction to the jury.

{¶ 12} The jury returned a verdict in favor of Conrail. The jury also determined that Conrail was not negligent. Klem filed posttrial motions seeking a judgment notwithstanding the verdict (and in the alternative, for a new trial), and a motion to amend the complaint to conform to the evidence. The trial court denied both. Klem appealed.

II. JUDGMENT NOTWITHSTANDING THE VERDICT

{¶ 13} In his first assignment of error, Klem contends:

{¶ 14} “The trial court erred in denying Klem's motion for judgment n.o.v. on his Locomotive Inspection Act claim.”

{¶ 15} As stated by the Supreme Court of Ohio:

{¶ 16} “The test to be applied by a trial court in ruling on a motion for judgment notwithstanding the verdict is the same test to be applied on a motion for a directed verdict.” Osler v. Lorain (1986), 28 Ohio St.3d 345, 347, 28 OBR 410, 504 N.E.2d 19.

{¶ 17} In Ramage v. Cent. Ohio Emergency Serv., Inc. (1992), 64 Ohio St.3d 97, 109, 592 N.E.2d 828, the Supreme Court of Ohio set forth the standard for granting a directed verdict. The court stated:

{¶ 18} “The strict standard for granting a directed verdict is found in Civ.R. 50(A)(4): ‘When a motion for a directed verdict has been properly made, and the trial court, after construing the evidence most strongly in favor of the party against whom the motion is directed, finds that upon any determinative issue reasonable minds could come to but one conclusion upon the evidence submitted [Ohio App.3d 699] and that conclusion is adverse to such party, the court shall sustain the motion * * *.’ ”

{¶ 19} In Strother v. Hutchinson (1981), 67 Ohio St.2d 282, 284, 21 O.O.3d 177, 423 N.E.2d 467, the court explained this standard: “When considering a motion for a directed verdict, a trial court must construe the evidence most strongly in favor of the party against whom the motion is directed. * * *

{¶ 20} “ * * *

{¶ 21} “The law in Ohio regarding directed verdicts is well formulated. * * * Thus, ‘if there is substantial competent evidence to support the party against whom the motion is made, upon which evidence reasonable minds might reach different conclusions, the motion must be denied. Kellerman v. J.S. Durig Co. (1964), 176 Ohio St. 320

[27 O.O.2d 241, 199 N.E.2d 562]

.’ Hawkins v. Ivy (1977), 50 Ohio St.2d 114, 115 363 N.E.2d 367.” See Wells v. Miami Valley Hosp. (1993), 90 Ohio App.3d 840, 631 N.E.2d 642.

{¶ 22} A motion for directed verdict presents a question of law. A court shall not grant a directed verdict when the record contains sufficient evidence going to all the essential elements of the case. Wagner v. Roche Laboratories (1996), 77 Ohio St.3d 116, 671 N.E.2d 252. In ruling upon the motion, the trial court may not weigh the evidence. Id.

{¶ 23} Klem asserts that he is entitled to a judgment notwithstanding the verdict because of Duhadway's admission that the locomotive was not in proper condition or safe to operate. Klem argues that Duhadway's admission that the independent brake “hesitated” establishes that (1) Conrail failed to comply with regulations promulgated...