Winningham v. North American Resources
| Decision Date | 29 October 1992 |
| Docket Number | No. C-1-91-447.,C-1-91-447. |
| Citation | 812 F. Supp. 1460 |
| Parties | Dale M. WINNINGHAM, Plaintiff, v. NORTH AMERICAN RESOURCES, et al., Defendants. |
| Court | U.S. District Court — Southern District of Ohio |
COPYRIGHT MATERIAL OMITTED
COPYRIGHT MATERIAL OMITTED
COPYRIGHT MATERIAL OMITTED
James Burdette Helmer, Jr., Helmer, Lugbill & Whitman Co., LPA, Cincinnati, OH, Meredith Lynn Lawrence, Lawrence & Schletker, Covington, KY, for Dale Winningham.
Arthur Herbert Schlemmer, Barron, Peck & Bennie, John Charles Scott, Faulkner & Tepe, Cincinnati, OH, for North American Resources Corp.
Philip John Marsick, Jr., McCaslin, Imbus & McCaslin, Cincinnati, OH, for I Deutch & Sons Inc.
Todd Matthew Powers, Rendigs, Fry, Kiely & Dennis, Cincinnati, OH, for Mose Cohen & Sons, Inc.
Frederick Mason Morgan, Jr., Montgomery, Rennie & Jonson, Cincinnati, for Insurance Co. of North America.
ORDER CONCERNING POST-TRIAL MOTIONS AND MODIFYING THE JUDGMENT
The Court held a lengthy jury trial in this case in June 1992. The jury found that all the Defendants had acted negligently. Specifically, the jury determined that the percentage of negligence attributable to North American Resources ("NARC") was 84%; the percentage of negligence attributable to Mose Cohen & Sons, Inc. ("Mose Cohen") and/or I. Deutch & Sons, Inc. ("I. Deutch") doing business as the partnership of Cincinnati Autoshredders ("CAS") was 16%; and, the Plaintiff's own negligence was 0%.
The jury further found that the total damages suffered by the Plaintiff was $1,925,000, of which $390,000 constituted past and future lost wages, $335,000 represented past and future medical care, and $1,200,000 constituted non-economic damages for pain and suffering, mental anguish, loss of enjoyment of life, loss of normal physical function, and disfigurement. As a result of the jury's findings, the Court entered Judgment on June 30, 1992 (doc. 220).
Subsequently, both parties filed numerous post-trial motions with the Court.1 They are as follows: the Defendant Mose Cohen's Motion to Reduce any Verdict for the Plaintiff (doc. 210), the Defendant NARC's Motion to Object to Judgment Being Entered Prior to Adjustment for Collateral Benefits (doc. 216), the Defendant CAS's Motion to Object to Judgment Being Entered Prior to Adjustment for Collateral Benefits (doc. 217), Defendant I. Deutch's Motion to Incorporate Contribution into the Judgment Entry (doc. 221), Defendant I. Deutch's and Mose Cohen's Motion for Reconsideration (doc. 232), the Plaintiff's Response (doc. 233), Defendant Deutch's Motion for Judgment as a Matter of Law (doc. 235), Defendant NARC's Motion for Judgment as a Matter of Law (doc. 236), the Defendant's Supplemental Memoranda (doc. 237),2 the Defendant's Reply (doc. 238), the Affidavit of James B. Helmer, Jr. (doc. 239), the Plaintiff's Motion for Prejudgment Interest (doc. 242), the Defendant's Supplemental Memoranda (doc. 243),3 the Plaintiff's Response to Judgment as a Matter of Law (doc. 244), the Defendant Deutch's Motion for a Hearing (doc. 245), the Affidavit of John M. Hands (doc. 246), the Defendant's Reply (doc. 247), Defendant I. Deutch's Response (doc. 248), the Affidavit of Todd M. Powers (doc. 249), the Plaintiff's Motion for Judgment Entry (doc. 250), the Plaintiff's Motion to file a Supplemental Petition (doc. 251), the Plaintiff's Response to the Motion for a Hearing (doc. 252), the Plaintiff's Reply to the Motion for Prejudgment Interest (doc. 253), the Defendant's Memorandum in Support of Motion for a Hearing to Determine Collateral Benefits (doc. 254), and the Affidavit of James B. Helmer, Jr. (doc. 257).
In the case before the Court, we understand that Neare, Gibbs & Company was the underwriter who procured an insurance policy for NARC through Insurance Company of America to cover any personal injuries arising on the premises where Mr. Winningham was injured.
More than thirty days has elapsed since the Judgment has been rendered by the jury, and Neare, Gibbs & Company and Insurance Company of America have failed to satisfy the Plaintiff's Judgment. In such a situation, the Ohio legislature has provided the following:
upon recovery of a final judgment against any firm, person, or corporation by any person ... for loss or damages on account of bodily injury or death ... if the defendant in such action was insured against loss or damage at the time when the right of action arose, the judgment creditor ... is entitled to have the insurance money provided for in the contract of insurance between the insurance company and the defendant applied to the satisfaction of the judgment. If the judgment is not satisfied within thirty days after it is rendered, the judgment creditor ... to reach and apply the insurance money to the satisfaction of the judgment, may file a supplemental petition in the action in which said judgment was rendered, in which the insurer is made new party defendant in said action, and whereon service of summons upon the insurer shall be made and returned as in the commencement of an action at law. Thereafter, the action shall proceed as to the insurer as in an original action.
Ohio Rev.Code § 3929.06 (emphasis added). Accordingly, under this statute and Fed. R.Civ.P. 15(d), we grant the Plaintiff leave to file its Supplemental Petition against Neare, Gibbs & Company and Insurance Company of America.
The Defendants have moved for a Judgment as a Matter of Law under Fed. R.Civ.P. 50(b). This Court has considered many of these issues before in denying the Defendants' Motions for Summary Judgment and the Defendants' Motion for a Directed Verdict.
The Plaintiff, Dale Winningham, worked at North American Terminals ("NAT") as a laborer who unloaded cargo from barges and rail cars. On April 28, 1988, Mr. Winningham was electrocuted, resulting in the loss of his hands and forearms, as well as severe burns to his body.
Mr. Winningham's accident occurred at 3291 Southside Avenue. 3291 Southside Avenue is industrial property with three docks on the banks of the Ohio River. The property extends northward from the Ohio River and is bisected east to west by Southside Avenue, a public road running parallel to the river.
The legal title to 3291 Southside Avenue was held by CAS, which is composed of two general partners, Mose Cohen and I. Deutch. In 1985, however, CAS entered into an installment land contract with NARC to sell 3291 Southside Avenue. The installment land contract provided that title would pass from CAS to NARC when NARC made its final payment on the purchase price, which was anticipated to be in 1987.
Throughout the time of the installment land contract, CAS continued to use 3291 Southside Avenue for part of its business. The evidence at trial showed that Mose Cohen had the following relationships with 3291 Southside Avenue: (1) a Mose Cohen truck knocked down the quadraplex wire one week before the Plaintiff's injury; (2) Mose Cohen dumped motor blocks on the north portion of 3291 Southside Avenue, thus eliminating access to the eastern gates of the property; (3) Mose Cohen failed to post warning signs concerning the condition of the wires involved in Mr. Winningham's accident; (4) Mose Cohen trucks carried almost two hundred thousand tons of scrap onto 3291 Southside Avenue during the mid-1980's; (5) Mose Cohen retained numerous rights to use and control 3291 Southside Avenue under the installment land contract with NARC; and (6) Mose Cohen was aware of the quadraplex wire and its height.
I. Deutch, too, had intensive involvement at 3291 Southside Avenue: (1) the principal of I. Deutch saw the conveyor become entangled in the quadraplex wire before Mr. Winningham's accident; (2) I. Deutch dumped motor blocks on the northeast side of Southside Avenue, thus blocking access to the eastern gates of the property for the 80-foot conveyor; (3) I. Deutch, as a general partner of CAS, retained numerous rights under the installment land contract with NARC to use and control 3291 Southside Avenue; (4) I. Deutch had several employees on the property on a regular basis; and (5) I. Deutch's trucks regularly drove over the property and used the main gate.
Judgment as a matter of law under Fed.R.Civ.P. 50 should be granted if, upon viewing the totality of the admissible evidence most favorable to the party opposing the motion, a reasonable trier of fact could draw but one conclusion. Ridenour v. Lawson Co., 791 F.2d 52, 55 (6th Cir.1986); Hill v. Spiegel, Inc., 708 F.2d 233, 237 (6th Cir.1983). Thus, in the determining the motion now before this Court, we have viewed the evidence in the light most favorable to the Plaintiff, the non-moving party.
The Defendants have moved for a Judgment as a Matter of Law based upon four grounds: (1) the Defendants did not have possession and control over the premises; (2) the work conducted by Mr. Winningham's employers was inherently dangerous and the Defendants were not active participants in the work; (3) the "inherent risk" exception to the frequenter statute is applicable; (4) the site of Mr. Winningham's injury was on a public thoroughfare.4
(1) Possession and Control over the Premises
The Defendants first contend that they should be entitled to a Judgment as a Matter of Law, because they did not retain sufficient possession and control of the premises to owe a duty to Mr. Winningham. This argument has already been determined by the Court in denying the Defendants' Motions for Summary Judgment.
The evidence established at trial does not alter this Court's determination. In fact, the evidence at trial further convinces this Court that the Defendants owed a duty to Mr. Winningham. Therefore, the Court reaffirms its reasoning in denying the Motion for Summary Judgment, and denies the Defendants' Motion for Judgment as a Matter of Law. See Doc. 122.
(2) No Participation in Inherently Dangerous...
To continue reading
Request your trial
-
Cowley v. Texas Snubbing Control, Inc.
....... The plaintiffs in Hooker v. American Indemnity Co., 12 Cal.App.2d 116, 54 P.2d 1128 (1936), secured a judgment ... debris, seepage and pollution of whatsoever nature, underground resources, and punitive damages; . b. That Knostman's counterclaim ......
-
Owen v. United Ohio Ins., 2006 Ohio 5170 (Ohio App. 9/29/2006)
...due process; and (2) that all courts shall be open to all persons with a right to a remedy for his injury." Winningham v. North American Resources (1992), 812 F.Supp. 1460, 1473. This section does not require unfettered access to the legal system. Id. at {¶40} In reviewing a constitutional ......
-
Winningham v. North American Resources Corp.
...district court opinions. See Winningham v. North Am. Resources Corp., 809 F.Supp. 546 (S.D. Ohio 1992); Winningham v. North Am. Resources Corp., 812 F.Supp. 1460 (S.D. Ohio 1992); Winningham v. Sexton, 820 F.Supp. 338 (S.D. Ohio 1993). Rather than restate them in full, we will summarize onl......
-
Donald M. Smith v. Cynthia A. Miller
...cert. granted, 66 Ohio St.3d 1412 (1993), No. 92-2382; Cook v. Wineberry Deli Inc. (July 17, 1991), Summit App. No. 14841, unreported. The Winningham, Sorrell, and Cook courts found R.C. 2317.45(B) to be constitutional when that statute was attacked with the same arguments appellee presents......