Walter Felden v. Ashland Chemical Co.

• Decision Date: 28 October 1993
• Docket Number: 64313 and 64346,93-LW-5314
• Parties: WALTER FELDEN, PLAINTIFF-APPELLEE v. ASHLAND CHEMICAL CO., ET AL., DEFENDANTS-APPELLANTS WALTER FELDEN, PLAINTIFF-APPELLANT v. ASHLAND CHEMICAL CO., ET AL., DEFENDANTS-APPELLEES NOS. 64313 and 64346
• Court: Ohio Court of Appeals

WALTER FELDEN, PLAINTIFF-APPELLEE v. v. NOS. 64313, 64346

93-LW-5314 (8th)

Court of Appeals of Ohio, Eighth District Cuyahoga

October 28, 1993

Civil appeal from Common Pleas Court, No. CV-192080.

For Walter Felden: Jeffrey H. Friedman, Esq., Lisa N. Gerlack Esq., 6th Floor Standard Building, Cleveland, OH 44113.

For Ashland Chemical Inc.: Ralph Streza, Esq., Porter, Wright Norris & Arthur, 925 Euclid Avenue Suite 1700, Cleveland, OH 44115 and Terrance M. Miller, Esq., Porter, Wright, Morris &amp Arthur, 41 South High Street, Columbus, OH 43215.

NUNC PRO TUNC

OPINION

DAVID T. MATIA, J.

Defendant-appellant, Ashland Chemical, Inc., appeals from a jury verdict which was rendered on behalf of plaintiff-appellee, Walter Felden, in the amount of $3.5 million. The appeal, as raised by Ashland, involves the issues of denial of a motion for a directed verdict/judgment notwithstanding the verdict, denial of a motion for summary judgment, improper evidentiary rulings which allowed the admission of remedial measures testimony and hearsay testimony, verdict against the weight of the evidence, denial of a motion for new trial, improper jury instructions and the award of prejudgment interest.

Walter Felden has also filed a cross-appeal. Felden's cross-assignment of error involves the issue of the deduction of collateral benefits from the $3.5 million verdict that was rendered by the jury.

The judgment of the trial court is affirmed.

I. THE FACTS

A. FELDEN IS INJURED WHILE DISCHARGING HIS DUTIES AS AN EMPLOYEE

Walter Felden was employed by Ashland as a kettle operator at a chemical plant located at 2191 West 110th Street, Cleveland, Ohio. As part of his employment, Felden was required to mix various batches of highly acidic and caustic chemicals in order to produce resins that were used to manufacture metal casting. On August 24, 1989, Felden was combining seven acidic, caustic or alkali raw materials in order to produce a product-called Chemrez 57962. In need of formic acid, Felden traveled to the "telephone" building. While transporting two 55-gallon drums of formic acid on a forklift to the kettle house, Felden struck a concrete-filled steel post which was located in' the middle of the plant driveway.

The collision with the steel post resulted in a rupture of one of the 55-gallon drums of formic acid. Felden was sprayed by the escaping acid and suffered third-degree burns to 23 percent of his body (face, eyes, arms, leg and side) plus loss of sight.

B. FELDEN FILES COMPLAINT BASED UPON CLAIM OF AN INTENTIONAL TORT

On June 21, 1990, Felden filed a complaint in the Cuyahoga County Court of Common Pleas. The original complaint of Felden, as well as two subsequent amended complaints, raised the claim of an intentional tort against Ashland. On October 25, 1990, Ashland filed a motion for summary judgment. On June 28, 1991, the trial court denied Ashland's motion for summary judgment.

C. THE JURY TRIAL AND VERDICT FOR FELDEN

On June 8, 1992, a jury trial was commenced with regard to Felden's claim of an intentional tort. At the conclusion of the trial, the jury returned a verdict on behalf of Felden in the amount of $3.5 million. In addition, the jury answered six interrogatories which provided as follows:

1) "Do you find that Plaintiff Walter Felden has proved by clear and convincing evidence that he is entitled to punitive damages, as defined by the court. "

Answer: No

2) "Has the Plaintiff proved by a greater weight or preponderance of the evidence that Ashland Chemical, Inc. intended, as defined by the court, to injure Walter Felden?"

Answer: Yes

3) "Did Ashland Chemical, Inc. have knowledge of the existence of a dangerous instrumentality within its business operations?"

Answer: Yes

4) "Do you find that Ashland Chemical, Inc. knew that injury to Walter Felden was substantially certain to result from his normal activities as a kettle operator at the Ashland plant?"

Answer: Yes

5) "Do you find that Plaintiff has proved that Ashland Chemical, Inc. with its knowledge of the existence of a dangerous instrumentality within its business operations required Walter Felden to continue to perform a dangerous task at the Ashland facility?"

Answer: Yes

6) Do you find that Plaintiff has established that Ashland Chemical, Inc. 's intentional tort, as defined by the court, was the proximate cause of Plaintiff's injuries?

Answer: Yes

D. THE TRIAL COURT REDUCES THE JURY'S AWARD

On July 9, 1992, the trial court reduced the general verdict of $3.5 million through a deduction of $296,772.44 which represented collateral benefits received by Felden from participation in the workers' compensation program. In addition, the trial court granted prejudgment interest on behalf of Felden and also denied Ashland's: 1) motion for judgment notwithstanding the verdict; 2) motion for new trial; and 3) motion for remittitur.

E. THE TIMELY APPEAL OF BOTH ASHLAND AND FELDEN

Thereafter, Ashland filed a timely appeal and has raised nine assignments of error. Felden filed a timely cross-appeal and has raised one cross-assignment of error.

II.

Ashland's initial assignment of error is that:

THE TRIAL COURT ERRED BY DENYING ASHLAND A DIRECTED VERDICT OR JUDGMENT NOTWITHSTANDING THE VERDICT.

A. THE ISSUE RAISED: TRIAL COURT ERRED BY FAILING TO GRANT ASHLAND'S 'LOTION FOR DIRECTED VERDICT OR J.N.O.V.

Ashland, through its initial assignment of error, argues that the trial court erred by failing to grant a motion for a directed verdict or a motion for judgment notwithstanding the verdict on behalf of Ashland. Specifically, Ashland argues that the evidence and testimony adduced at trial, even when construed most favorably on behalf of Felden, fails to support a finding of an intentional tort which required the trial court to either grant Ashland a motion for direct verdict or a motion for judgment notwithstanding the verdict.

The first assignment of error as raised by Ashland is not well taken.

B. THE TRIPARTITE TEST APPLICABLE TO AN INTENTIONAL TORT CLAIM

The Supreme Court of Ohio has established a three-part test which must be applied in order to determine whether an employer has committed an intentional tort against one of its employees:

Within the purview of Section 8(A) of the Restatement of the Law 2d, Torts, and Section 8 of Prosser & Keeton on Torts (5 Ed.1984), in order to establish "intent" for the purpose of proving the existence of an intentional tort committed by an employer against his employee, the following must be demonstrated: (1) knowledge by the employer of the existence of a dangerous process, procedure, instrumentality or condition within its business operation; (2) knowledge by the employer that if the employee is subjected by his employment to such dangerous process, procedure, instrumentality or condition, then harm to the employee will be a substantial certainty; and (3) that the employer, under such circumstances, and with such knowledge, did act to require the employee to continue to perform the dangerous task. (Van Fossen v. Babcock & Wilcox Co. [1988], 36 Ohio St.3d 100, 522 N.E.2d 489, paragraph five of the syllabus, modified as set forth above and explained.)

Fyffe v. Jeno's, Inc. (1991), 59 Ohio St.3d 115, paragraph one of the syllabus.

C. THE MOTION FOR A DIRECTED VERDICT AS MADE BY ASHLAND

At the close of Felden's case-in-chief, Ashland moved for directed verdict. The trial court denied the motion for directed verdict. At the close of all testimony, Ashland failed to renew its motion for directed verdict. The failure of Ashland to renew its motion for directed verdict at the close of all evidence constitutes a waiver of any error associated with the trial court's denial of the first motion for directed verdict.

In the recent case of Helmick v. Republic-Franklin Ins Co. (1988), 39 Ohio St. 3d 71, 529 N.E. 2d 464, we reaffirmed the longstanding rule that a motion for directed verdict which is denied at the close of the plaintiff's evidence must be renewed at the close of all evidence in order to preserve the error for appeal. See Cincinnati Traction Co. v.Durack (1908), 78 Ohio St. 243, 85 N.E. 38; Zanesville v. Stotts (1913), 88 Ohio St. 557, 106 N.E. 1051; Youngstown & Suburban Ry. Co. v. Faulk (1926), 114 Ohio St. 572, 151 N.E. 747.Neman acknowledges that thins rule governs the instant case, but asks that we "modify" it and hold that his JNOV motion was equivalent to a renewal of the motion for directed verdict.

The record reveals that, though Neman raised some of the same issues in both motions, they are not identical. While Neman asserted at all stages of the proceeding that there was no proof of reliance or damages, his other arguments changed at each turn. Further, while the same standard is used to resolve both types of motion, see, e.g., Cardinal v. Family Foot Care Centers, Inc. (1987), 40 Ohio App. 3d 181, 532 N.E. 2d 162, a directed verdict motion made at the close of plaintiff's evidence is evaluated on the evidence in the plaintiff's case in chief, see Helmick, supra, at 73, 529 N.E. 2d at 466, while a JNOV motion is evaluated on all the evidence presented at trial. Thus, it is clear that an appeal from the ruling on a directed verdict motion and an appeal from the ruling on a JNOV motion are sufficiently different, both as a general proposition and on the specific facts before us, that one is not a substitute for the other.

Chemical Bank of New York v. Neman (1990), 52 Ohio St.3d 204, 206.

(Footnote omitted.)

D. THE MOTION FOR J.N.O.V. AS MADE BY ASHLAND

Further review of the record fails to disclose that the trial court erred as a result of denying Ashland's motion for judgment notwithstanding the verdict ("JNOV"). This court must apply the following...