Conte v. Gen Housewares Corp

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 ELECTRONIC CITATION: 2000 FED App. 0200P (6th Cir.) File Name: 00a0200p.06

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _________________

;  ERIK CONTE,  Plaintiff-Appellee,   Nos. 98-4315; v.  99-4137 > GENERAL HOUSEWARES   Defendant,  CORPORATION,

   DAYTON POWER & LIGHT COMPANY,  Defendant-Appellant.  1 Appeal from the United States District Court for the Southern District of Ohio at Dayton. No. 95-00451—Susan J. Dlott, District Judge. Argued: March 16, 2000 Decided and Filed: June 14, 2000 Before: NORRIS, MOORE, and COLE, Circuit Judges.

2 Conte v. General Nos. 98-4315; 99-4137 Nos. 98-4315; 99-4137 Conte v. General 19 Housewares Corp., et al. Housewares Corp., et al.

_________________ merely because its co-obligor settles with the plaintiff after the verdict. Although DP&L cites several cases that COUNSEL purportedly hold to the contrary, Conte is correct in pointing out that those cases either involved preverdict settlements or ARGUED: Scott R. Thomas, FURNIER & THOMAS, verdicts that legitimately apportioned damages among Cincinnati, Ohio, for Appellant. Thomas R. Murphy, defendant tortfeasors. Those cases are therefore not apposite. ROCHE, HEIFETZ, MURPHY & WHOLLEY, Boston, For these reasons, we hold that the district court did not abuse Massachusetts, for Appellee. ON BRIEF: Scott R. Thomas, its discretion in refusing to relieve DP&L from having to pay Robert R. Furnier, Norman J. Frankowski II, FURNIER & prejudgment interest on the entire judgment. THOMAS, Cincinnati, Ohio, for Appellant. Thomas R. Murphy, ROCHE, HEIFETZ, MURPHY & WHOLLEY, Additionally, DP&L claims that it is entitled to a reduction Boston, Massachusetts, Steven B. Ayers, CRABBE, of the judgment against it based on GHC’s settlement with BROWN, JONES, POTTS & SCHMIDT, Columbus, Ohio, Conte, in partial satisfaction of the judgment, for $3.675 for Appellee. million. Given our holding that DP&L is required to pay prejudgment interest, the parties do not appear to disagree _________________ about the amount for which DP&L remains liable: the entire judgment of $3.5 million, plus the prejudgment interest on OPINION that amount ($958,904.10), minus the $3.675 million paid by _________________ GHC, plus the appropriate postjudgment interest. Since we are remanding the case to the district court for the calculation KAREN NELSON MOORE, Circuit Judge. Plaintiff- of postjudgment interest, we suggest that the district judge appellee Erik Conte successfully sued defendant General amend the judgment to reflect the payment of $3.675 million Housewares Corp. (“GHC”) and defendant-appellant Dayton by GHC and the revised amount of DP&L’s liability, Power and Light Co. (“DP&L”) in connection with severe consistent with this opinion. personal injuries that he received as a result of a large electrical shock and obtained a verdict of $3.5 million. III. CONCLUSION DP&L now appeals several of the district court’s rulings with respect to that verdict and with respect to the award of For the foregoing reasons, we AFFIRM the district court’s prejudgment interest against DP&L. Because there was no judgment and REMAND for recalculation of DP&L’s error in the district court’s decisions to award prejudgment liability in light of the accrued postjudgment interest and the interest against DP&L and to deny DP&L’s motions for partial satisfaction of the judgment by GHC. judgment as a matter of law, a new trial, and relief from the award of prejudgment interest, we AFFIRM those rulings of the district court, and we REMAND for recalculation of DP&L’s liability in light of the partial satisfaction of the judgment by GHC and the accrued postjudgment interest.

18 Conte v. General Nos. 98-4315; 99-4137 Nos. 98-4315; 99-4137 Conte v. General 3 Housewares Corp., et al. Housewares Corp., et al.

D. Motion for Relief from the Judgment I. BACKGROUND Applying federal law, this court reviews for an abuse of Erik Conte, an employee of Kessler Tank Co., was sent, discretion the district court’s decision to grant or deny a Rule along with two other Kessler employees, to paint an elevated 60(b) motion in a diversity case. See Davis v. Jellico water tank on the premises of General Housewares Corp. in Community Hosp. Inc., 912 F.2d 129, 132-33 (6th Cir. 1990). Sidney, Ohio on June 10, 1995. The water tank was DP&L contends that the district court abused its discretion in surrounded by high-voltage electrical wires, some of which denying DP&L’s motion for relief from the judgment under had been de-energized by a DP&L employee at the request of Federal Rule of Civil Procedure 60(b)(5) on the ground that GHC. Conte was severely injured when the extension pole he the judgment has been partially satisfied. was using came into contact with one or more of the energized power lines, causing him to receive a large First, DP&L argues that it should now be relieved of electrical shock. liability for the prejudgment interest, because, due to GHC’s payment of the full amount of the underlying $3.5 million The facts surrounding this accident were disputed. It seems judgment, there is no longer a judgment on which that GHC’s maintenance manager, Don Doll, contacted prejudgment interest may be based. Although neither party Dayton Power & Light to inquire about having some power has cited published Ohio cases that are directly on point, as a lines de-energized in preparation for the painting. The DP&L matter of logic it is clear that a prejudgment interest award employees who initially inspected the GHC site cannot be eradicated by a postjudgment settlement for the recommended a total power outage, but a GHC representative amount of the jury verdict, since the prejudgment interest was told Mike Nowicki, a supervisor at DP&L, that GHC was not merged with the amount of the jury verdict to form the total willing to undergo a total outage, because it needed to have judgment. See Nakoff v. Fairview Gen. Hosp., 694 N.E.2d enough power to run the computers and other devices in its 107, 108 (Ohio Ct. App.), appeal not allowed, 680 N.E.2d factory building. All the parties agree on these facts, but they 1022 (Ohio 1997). It would therefore be inaccurate to state do not agree on what happened next. There was conflicting that the judgment has been fully satisfied by GHC’s payment testimony at trial concerning which power lines were to be of $3.675 million after the prejudgment interest was awarded left energized and who made that decision. Ultimately, Mike against DP&L.7 Moreover, it is irrelevant for the purposes of Large, a technician from DP&L, appeared at GHC on June 10, prejudgment interest that the amount of the verdict is paid 1995, and de-energized only those secondary wires attached subsequent to the verdict, because prejudgment interest is to the legs of the water tank, leaving the primaries and the intended to compensate the plaintiff for the delay between the other secondaries energized.1 The Kessler employees time the cause of action arose and the verdict. See, e.g., proceeded to paint the tank and, while suspended from a Woods v. Farmers Ins. of Columbus, Inc., 666 N.E.2d 283, botswain chair, Erik Conte accidentally allowed his sixteen- 286 (Ohio Ct. App. 1995). Therefore, a defendant is not foot extension pole to make contact with one or more of the relieved of the requirement to pay prejudgment interest

7 1 Indeed, DP&L’s argument, carried to its logical conclusion, would As explained by Nowicki, the difference between primary lines and appear to allow a party always to avoid paying prejudgment interest secondary lines is that “primaries” are generally uninsulated and carry merely by paying the underlying judgment in full and then claiming that between 7200 and 12,500 volts of electricity, and “secondaries” are there was no longer a judgment on which to pay interest. generally insulated and carry less than 600 volts.

4 Conte v. General Nos. 98-4315; 99-4137 Nos. 98-4315; 99-4137 Conte v. General 17 Housewares Corp., et al. Housewares Corp., et al.

primary lines, which caused him severe burns and attributable to the plaintiff, then joint and several liability disfigurement. would lie.”). The jury was therefore not entitled to apportion the damages between the two tortfeasors. See George B. Conte filed suit against GHC and DP&L in federal court on Scrambling Co. v. Tennant Drug Co., 158 N.E. 282, 285-86 November 29, 1995, for negligence, misrepresentation, and (Ohio Ct. App. 1927); Cincinnati Traction Co. v. Cochran, breach of contract.2 He subsequently amended his complaint 153 N.E. 116, 116-17 (Ohio Ct. App. 1923). The jury’s to omit the claims of misrepresentation and breach of contract answers to the special interrogatories, which found both against DP&L. The defendants moved for summary DP&L and GHC negligent and Conte not contributorily judgment. The magistrate judge recommended granting the negligent — thereby invoking joint and several liability under summary judgment motions, finding in particular that Conte’s Ohio law — are inconsistent with the general verdict, which injuries were not foreseeable by DP&L, since DP&L did not apportioned fault between DP&L and GHC. Therefore, the know that the Kessler workers would use a long extension district court was entitled under Rule 49(b) to enter the pole to paint the tank; furthermore, the magistrate judge found judgment in accordance with the interrogatory answers and that DP&L exercised ordinary care in de-energizing the power notwithstanding the verdict. lines. The district court denied the summary judgment motions, however, finding instead that there were material DP&L argues that the interrogatory answers and the general questions of fact as to who determined which lines were to be verdict were consistent when construed in light of the district de-energized and whether the process of de-energizing was court’s “proximate cause” charge, which instructed the jury performed with due care. The case went to trial, and Conte that “[e]ach defendant must respond for only those losses and received a $3.5 million verdict. On September 11, 1998, the injuries which are the direct and proximate result of its district court granted Conte’s motion for prejudgment interest negligent act.” J.A. at 2239 (Jury Charge). This argument is in the amount of $958,904.10 against DP&L only, finding that without merit. The requirement of proximate causation does DP&L had failed to negotiate in good faith with Conte. The not eliminate joint and several liability: joint and several jury had erred, however, by apportioning liability for the liability implies that the joint acts of both defendants verdict between the defendants ($3 million to GHC and proximately caused the plaintiff’s injuries. See 18 OHIO JUR. $500,000 to DP&L) where the defendants were jointly and 3d Contribution, Indemnity, and Subrogation §§ 83, 84 severally liable under Ohio law. The district court, with the (1980). Therefore, under joint and several liability, both agreement of counsel for all sides, therefore amended the defendants are held responsible for all of the plaintiff’s judgment on October 14, 1998, to reflect the joint and several injuries, because their joint acts were the proximate cause of liability of GHC and DP&L for $3.5 million and the all of those injuries. prejudgment interest award against DP&L. DP&L then filed a motion to amend the amended judgment entry, requesting For these reasons, we hold that the district court correctly that it state that prejudgment interest against DP&L would be amended the judgment under Rule 49(b), and therefore that it did not abuse its discretion in refusing to grant the defendant’s motion for a new trial on this basis. 2 Since Conte is a citizen of Massachusetts, GHC is a Delaware corporation with its principal place of business in Ohio, DP&L is an Ohio corporation with its principal place of business in Ohio, and the amount in controversy was jurisdictionally adequate, the district court properly assumed jurisdiction under 28 U.S.C. § 1332.

16 Conte v. General Nos. 98-4315; 99-4137 Nos. 98-4315; 99-4137 Conte v. General 5 Housewares Corp., et al. Housewares Corp., et al.

interrogatory responses, finding that both DP&L and GHC calculated only after contribution rights between DP&L and were negligent and that Conte was not contributorily GHC had been determined, or, alternatively, that the negligent, were not inconsistent with the “general verdict” prejudgment interest award against DP&L be calculated only forms, which found DP&L liable for $500,000 and GHC on the amount of $500,000. The district court then denied the liable for $3 million. Therefore, it claims, the district court motion to amend the amended judgment, and DP&L did not have the authority under Federal Rule of Civil appealed. Procedure 49(b) to correct the judgment entry. The district court found that the answers were inconsistent with the Meanwhile, on September 28, 1998, GHC settled with general verdict and declined to grant DP&L’s motion for a Conte for $3.675 million. DP&L therefore filed a motion new trial. pursuant to Federal Rule of Civil Procedure 60(b)(5) for relief from the judgment to the extent of the settlement amount. In a diversity case, federal law governs most issues The district court denied the order as superfluous. DP&L surrounding the utilization of special interrogatories and the then appealed that order. problem of inconsistent answers, including the effect of inconsistency between a general verdict and one or more On appeal, DP&L makes several claims of error. First, it special interrogatories. See Jewell v. Holzer Hosp. Found., argues that the district court abused its discretion in granting Inc., 899 F.2d 1507, 1510 (6th Cir. 1990). However, federal prejudgment interest to Conte. It also claims that the district courts look to state law to determine whether a verdict is court erred in denying DP&L’s motion for judgment as a inconsistent. See Tipton v. Michelin Tire Co., 101 F.3d 1145, matter of law and abused its discretion in denying DP&L’s 1148 n.4 (6th Cir. 1996). motion for a new trial. Finally, DP&L contends that the district court’s denial of DP&L’s motion for relief from the DP&L’s objection to the amended judgment is without judgment was in error. merit. As the district court correctly found, DP&L and GHC were jointly and severally liable as a matter of Ohio law, II. ANALYSIS because they were joint tortfeasors, and Conte was not contributorily negligent. See OHIO REV. CODE ANN. A. Prejudgment Interest § 2315.19; Eberly v. A-P Controls, Inc., 572 N.E.2d 633, 638- 39 (Ohio 1991) (“[S]everal liability [is] triggered only upon In a diversity case, state law governs the district court’s a finding of negligence on the part of the plaintiff. . . . If a decision whether to award prejudgment interest, see Diggs v. jury return[s] answers to interrogatories finding no negligence Pepsi-Cola Metro. Bottling Co., 861 F.2d 914, 924 (6th Cir. 1988), which is reviewed by this court for an abuse of discretion, see Stallworth v. City of Cleveland, 893 F.2d 830, 836 (6th Cir. 1990) (applying Ohio law). The Ohio courts more issues of fact the decision of which is necessary to a have defined an abuse of discretion, in the context of verdict. . . . When the answers are consistent with each other but prejudgment interest awards, as a result “so palpably and one or more is inconsistent with the general verdict, judgment grossly violative of fact and logic that it evidences not the may be entered pursuant to Rule 58 in accordance with the exercise of will but perversity of will, not the exercise of answers, notwithstanding the general verdict, or the court may return the jury for further consideration of its answers and judgment but defiance thereof, not the exercise of reason but verdict or may order a new trial. rather of passion or bias.” State v. Jenkins, 473 N.E.2d 264, FED. R. CIV. P. 49(b). 313 (Ohio 1984) (quoting Spalding v. Spalding, 94 N.W.2d

6 Conte v. General Nos. 98-4315; 99-4137 Nos. 98-4315; 99-4137 Conte v. General 15 Housewares Corp., et al. Housewares Corp., et al.

810, 811-12 (Mich. 1959)), cert. denied, 473 U.S. 1032 used to impeach Fralick’s testimony at trial that he did not (1985). know that the primaries were energized. Under Ohio law, a plaintiff is entitled to prejudgment Applying federal law to determine the admissibility of interest if the court determines “that the party required to pay Doll’s testimony, we conclude that the evidence was the money failed to make a good faith effort to settle the case erroneously excluded. See Barnes v. Owens-Corning and that the party to whom the money is to be paid did not fail Fiberglas Corp., 201 F.3d 815, 829 (6th Cir. 2000). Because to make a good faith effort to settle the case.” OHIO REV. the statements were offered to impeach Fralick’s trial CODE ANN. § 1343.03(C) (Banks-Baldwin 1994). The Ohio testimony and not for the truth of the matter asserted, they Supreme Court has held that a party has not failed to make a were not hearsay. See FED. R. EVID. 801(c); United States v. good-faith effort to settle under the statute if that party has Causey, 834 F.2d 1277, 1282-83 (6th Cir. 1987), cert. denied, 486 U.S. 1034 (1988). Nonetheless, DP&L has made no (1) fully cooperated in discovery proceedings, (2) showing that this error was so prejudicial as to require a new rationally evaluated his risks and potential liability, (3) trial. As Conte pointed out, Large testified that he told not attempted to unnecessarily delay any of the Fralick that the lines were hot; therefore, some evidence to proceedings, and (4) made a good faith monetary this effect was before the jury. DP&L argues that this settlement offer or responded in good faith to an offer evidence would have helped to illuminate the question of the from the other party. If a party has a good faith, painters’ reliance on DP&L’s undertaking to make their objectively reasonable belief that he has no liability, he workplace safe: if the jury concluded that painters knew the need not make a monetary settlement offer. lines were energized, then they could not have found that the painters relied on DP&L’s conduct in using the extension Kalain v. Smith, 495 N.E.2d 572 (Ohio 1986), syllabus. In poles in the proximity of the primary wires. This argument Moskovitz v. Mt. Sinai Medical Center, 635 N.E.2d 331 has two flaws. First, Doll’s testimony would not, in any case, (Ohio), cert. denied, 513 U.S. 1059 (1994), the Supreme have been admissible as substantive evidence on this issue, Court of Ohio noted that the last sentence “should be strictly but merely as a way of impeaching Fralick’s testimony. construed so as to carry out the purposes of R.C. 1343.03(C).” Second, the proffered evidence may help to show that Fralick Id. at 348. Although the burden of proof is on the party did not rely on DP&L, but it does not demonstrate anything seeking the prejudgment interest, that burden does not require about Conte’s reliance. Therefore, we hold that the district showing bad faith by the other party, but rather only a lack of court did not abuse its discretion in refusing to grant a new good faith. See id. trial based on the erroneous exclusion of this evidence. The district court held that DP&L failed to make a good- Finally, DP&L argues that it was entitled to a new trial faith effort to settle, because it did not rationally evaluate its because it was prejudiced by the district court’s erroneous risks and potential liability, nor did it make a good-faith amendment of the judgment under Federal Rule of Civil settlement offer or respond in good faith to Conte’s offer. Procedure 49(b).6 DP&L claimed that the jury’s special DP&L claims that the district court abused its discretion, because DP&L maintained a good-faith, reasonable belief that it was not liable for Conte’s injuries throughout this litigation. 6 Rule 49(b) states, in pertinent part: DP&L points first to the magistrate judge’s recommendation The court may submit to the jury, together with the appropriate forms for a general verdict, written interrogatories upon one or

14 Conte v. General Nos. 98-4315; 99-4137 Nos. 98-4315; 99-4137 Conte v. General 7 Housewares Corp., et al. Housewares Corp., et al.

Standard Fire Ins. Co., 936 F.2d 1474, 1487 & n.20 (6th Cir. to grant summary judgment in DP&L’s favor as evidence of 1991). Finding an abuse of discretion in this context requires the reasonableness of DP&L’s belief in its own lack of a “definite and firm conviction . . . that the court below liability. Furthermore, DP&L claims that, contrary to the committed a clear error of judgment in the conclusion it district court’s findings, DP&L personnel constantly reached upon a weighing of the relevant factors.” Holmes v. discussed the possibility and desirability of settlement with City of Massillon, 78 F.3d 1041, 1045 (6th Cir.) (quoting DP&L’s counsel. Finally, DP&L disputes the district court’s Balani v. INS, 669 F.2d 1157, 1160 (6th Cir. 1982)), cert. finding that DP&L believed there was more than a fifty denied, 519 U.S. 935 (1996). Generally, a court may grant a percent chance that a jury would award Conte a verdict of up new trial under Rule 59 if the verdict is against the weight of to $500,000, which was based on the statement of DP&L’s the evidence, if the damages award is excessive, or if the trial counsel that he thought that “[t]he likelihood of Plaintiff was influenced by prejudice or bias, or otherwise unfair to the recovering an award in excess of $500,000.00 from DP&L moving party. See id. at 1045-46. When ruling on a new trial [was] less than 50%.” J.A. at 2505 (Thomas Dep.). motion claiming that the verdict was against the weight of the evidence, the district court “may compare the opposing proofs We hold that the district court did not abuse its discretion and weigh the evidence.” Toth v. Yoder Co., 749 F.2d 1190, in awarding prejudgment interest to Conte. DP&L does not 1197 (6th Cir. 1984). However, “while the district judge has dispute that it never made a real settlement offer to Conte, a duty to intervene in appropriate cases, the jury’s verdict despite Conte’s efforts to negotiate.3 Furthermore, although should be accepted if it is one which could reasonably have there is evidence that DP&L’s counsel, Scott Thomas, made been reached.” Id. (quoting Bruner v. Dunaway, 684 F.2d some attempts to evaluate DP&L’s potential liability in this 422 (6th Cir. 1982), cert. denied, 459 U.S. 1171 (1983)). action and that he kept in contact with DP&L management about the possibility of settlement, the district court did not In arguing that the verdict was against the weight of the abuse its discretion in finding that DP&L nonetheless did not evidence, DP&L relies on the same arguments that it rationally evaluate its risk. Thomas’s deposition indicates employed in contending that the district court should have that there was only one written report generated by the law granted its motion for judgment as a matter of law. For the firm and transmitted to DP&L regarding the possibility of reasons discussed above in Part B.2., we hold that the jury’s settlement in this case. Similarly, Paul Cynkar, the verdict in this case is one that could reasonably have been Supervisor of Claims Administration at DP&L, testified that reached, and therefore that the district court did not err in DP&L did not make any written evaluations of the case based denying DP&L’s motion for a new trial on this ground. on Thomas’s oral communications. Thomas’s testimony also demonstrates minimal and unrigorous efforts on his part to DP&L also argues that the district court should have granted it a new trial, because it was prejudiced by the erroneous exclusion of certain evidence. In particular, DP&L 3 attempted to have Don Doll testify that Stan Fralick (one of The only act on the part of DP&L that could be characterized as a the Kessler painters) told Doll after the accident that he knew “settlement” was its offer of $3.00 to Conte on the day prior to trial. As “the wires were hot, but not that hot.” The district court DP&L explains, however, this “offer” was part of a scheme to convince Conte to dismiss DP&L from the case: DP&L explained to Conte that it refused to admit this testimony as hearsay. DP&L argues that would be to Conte’s advantage to have DP&L out of the case for a this testimony was admissible under Federal Rule of Evidence number of reasons – including that DP&L intended to employ “kamikaze” 613(b) as extrinsic evidence of a prior inconsistent statement, and “scorched earth” tactics and that DP&L was more prepared than GHC and would bolster GHC’s defense.

8 Conte v. General Nos. 98-4315; 99-4137 Nos. 98-4315; 99-4137 Conte v. General 13 Housewares Corp., et al. Housewares Corp., et al.

determine the likely verdict in this case. Cf. Loder v. Burger, could find that DP&L owed a duty to Conte, regardless of the 681 N.E.2d 1357, 1362-63 (Ohio Ct. App. 1996) (noting that fact that DP&L did not own the power lines or have the right a claims adjuster’s decision to rely solely on her own to de-energize them without GHC’s permission. judgment as to the value of the case, without seeking outside opinions, was some evidence of a failure rationally to evaluate Having determined that DP&L did owe a duty to Conte, we risk). Given this evidence, we cannot conclude that the have no difficulty in concluding that the jury could reasonably district court’s decision was so unreasonable, illogical, or find that that duty included de-energizing the primary wires, arbitrary as to constitute an abuse of discretion. and that DP&L exhibited negligence with respect to that duty. Based on the testimony of Nowicki, Large, and William DP&L maintains that it reasonably believed throughout the Hershfeld, a maintenance supervisor at GHC, the jury could litigation that it could not be held liable, because it had never have concluded that DP&L had explicitly agreed to de- undertaken a duty to de-energize the primary lines, and energize the primary lines; or it could have found that DP&L because it did not own those lines and therefore was not agreed to de-energize those lines that had to be de-energized authorized to de-energize them unless GHC so instructed it. in order to render the workplace safe; or it could have found Those defenses were simply no longer valid, however, in light that DP&L undertook together with GHC to decide which of the district court’s rulings, in denying DP&L’s motion for lines should be de-energized. If it found any of those duties summary judgment, that DP&L had undertaken a duty (the to be included within the scope of DP&L’s undertaking, the scope of which was unclear), that there was an issue of fact as jury clearly could have found that DP&L performed to who had decided which lines would be de-energized, and negligently by only de-energizing — or by only agreeing to that DP&L’s lack of ownership of the power lines was not de-energize — the secondary lines attached to the legs of the dispositive. Therefore, DP&L could not maintain a tank. Therefore, the district court did not err in denying reasonable belief in its own nonliability on the theory it DP&L’s motion for judgment as a matter of law. describes. See id. at 1361 (holding that the defendants’ reliance on “faulty defenses” could not constitute a good faith, C. Motion for a New Trial objectively reasonable belief that they were not liable). DP&L claims that the district court should have granted its Furthermore, DP&L’s argument that it could have had a motion for a new trial under Federal Rule of Civil Procedure reasonable belief that it was not liable because the factual 59. DP&L contends that it was entitled to a new trial for issues were strongly disputed, see Cooper v. Metal Sales three reasons: first, the verdict was contrary to the weight of Manufacturing Corp., 660 N.E.2d 1245, 1255-56 (Ohio Ct. the evidence; second, the district court erred in excluding App.), appeal not allowed, 655 N.E.2d 741 (Ohio 1995); some of DP&L’s evidence as hearsay; and third, the district Worrell v. Multipress, Inc., 543 N.E.2d 1277, 1285 (Ohio court incorrectly modified the jury’s verdict under Federal 1989), does not carry the day. The courts in Worrell and Rule of Civil Procedure 49(b). All of these claims are Cooper merely held that the trial court did not abuse its without merit. discretion in refusing prejudgment interest where the factual issues were hotly disputed; they did not hold that it was an In a diversity case, federal law governs the district court’s abuse of discretion to grant prejudgment interest in those decision whether to grant a new trial on the basis of the situations. See Cooper, 660 N.E.2d at 1255-56; Worrell, 543 weight of the evidence, which is reviewed by this court for an N.E.2d at 1285. Moreover, the Ohio Supreme Court has also abuse of discretion. See J.C. Wyckoff & Assocs., Inc. v.

12 Conte v. General Nos. 98-4315; 99-4137 Nos. 98-4315; 99-4137 Conte v. General 9 Housewares Corp., et al. Housewares Corp., et al.

to its customer to exercise reasonable care when it elected to stated that conflicting evidence can be a factor weighing in respond to a customer’s call for emergency assistance”).5 favor of a grant of prejudgment interest. See Moskovitz, 635 N.E.2d at 351-352. Thus, the mere existence of factual It is undisputed in this case that DP&L undertook to aid conflicts is of little aid to DP&L’s case. GHC in making its workplace safe, and it is undisputed that Conte relied on the joint actions of GHC and DP&L when DP&L is correct that the magistrate judge’s performing his job of painting the water tower. In order to recommendation in its favor is some evidence that DP&L show reliance under § 323(b), the Ohio Court of Appeals has could have had a reasonable, good-faith belief that it was not held, the plaintiff must show “actual or affirmative reliance, liable. However, DP&L was not entitled to rely on this initial i.e., reliance ‘based on specific actions or representations belief throughout the litigation, especially since subsequent which cause the persons to forego other alternatives of events should have undermined that belief. Cf. id. at 351 (“If protecting themselves.’” Wissel, 605 N.E.2d at 465 (citation [the defendant] ever had a good faith, objectively reasonable omitted). The fact that the Kessler employees waited for the belief that he had no liability, the fact that the ‘arbitration’ DP&L worker to de-energize the power lines before panel unanimously found against [him] should have apprised beginning their work serves as evidence that they relied on him that a finding of liability at trial was possible, if not DP&L’s and GHC’s efforts to render the workplace safe and probable.”). In the cases cited by DP&L for the proposition that they would not have begun painting if they believed that that the magistrate judge’s recommendation demonstrates its there was a possibility of electrical shock. Exactly what good faith, there were no subsequent events that undermined DP&L undertook to do to render the GHC workplace safe is the defendant’s belief in its lack of liability, and therefore less clear, however; but the scope of the duty undertaken by those cases are inapposite.4 DP&L was for the jury to determine. See Peyer v. Ohio Water Serv. Co., 720 N.E.2d 195, 200 (Ohio Ct. App. 1998); DP&L is also correct that, as a matter of logic, its counsel’s Detrick v. Columbia Sussex Corp., 629 N.E.2d 1081, 1082 statement that he believed that there was less than a fifty (Ohio Ct. App. 1993). percent chance that DP&L would be held liable for more than $500,000 does not mean that he therefore believed that there Furthermore, the fact that DP&L did not own or exercise was more than a fifty percent chance that it would be held control over GHC’s power lines does not affect the existence liable for an amount up to $500,000. Nonetheless, in light of of DP&L’s duty. A utility may still owe a duty to guard the the substantial evidence supporting the district court’s safety of customers and others, regardless of who actually decision, this minor error in the court’s argumentation is not owns or controls the power lines. See Fortman v. Dayton Power & Light Co., 609 N.E.2d 1296, 1299-1300 (Ohio Ct. App. 1992). Therefore, if the jury found that DP&L had 4 One exception is the unpublished case Barna v. Randall Park undertaken a duty to make GHC’s workplace safe by de- Associates, No. 66751, 1994 WL 716525 (Ohio Ct. App. Dec. 22, 1994), energizing the primaries as well as certain secondaries, it dismissed, appeal not allowed, 648 N.E.2d 514 (Ohio 1995), cited by DP&L, in which the court held that, in a second trial, the defendant had a good-faith belief that it was not liable based, in part, on a directed 5 verdict in its favor in the first trial, despite the fact that that verdict was The Wissel court noted that the Ohio Supreme Court had not overturned on appeal. However, the court of appeals noted that there expressly adopted § 323, but that it had cited that section with approval. were compelling reasons for the defendant to believe that it could prevail See Wissel, 605 N.E.2d at 465. The Ohio Supreme Court still has not in the new trial, because it had located new witnesses and therefore could spoken definitively on § 323(b) since Wissel was decided. present a new theory of nonliability. See id. at *2.

10 Conte v. General Nos. 98-4315; 99-4137 Nos. 98-4315; 99-4137 Conte v. General 11 Housewares Corp., et al. Housewares Corp., et al.

sufficient to demonstrate an abuse of discretion. We therefore Family Counseling Ctr., 673 N.E.2d 1311, 1319 (Ohio 1997). uphold the award of prejudgment interest to Conte. “In Ohio, ‘[t]he existence of a duty depends on the foreseeability of the injury . . . . The test for foreseeability is B. DP&L’s Motion for Judgment as a Matter of Law whether a reasonably prudent person would have anticipated that an injury was likely to result from the performance or 1. Standard of Review nonperformance of an act.’” Id. (quoting Menifee v. Ohio Welding Prods., Inc., 472 N.E.2d 707, 710 (Ohio 1984)) This court reviews de novo the district court’s disposition (omission and alteration in original). of a motion for a judgment as a matter of law under Federal Rule of Civil Procedure 50. See K&T Enters., Inc. v. Zurich The district court was correct to find that DP&L owed a Ins. Co., 97 F.3d 171, 175 (6th Cir. 1996). To the extent that duty of ordinary care to Conte, because DP&L voluntarily DP&L claims that the district court erred in finding that undertook to perform services for the benefit of Conte and the DP&L had assumed a duty of care, it raises a purely legal other Kessler painters. The Court of Appeals of Ohio adopted question, see Mussivand v. David, 544 N.E.2d 265, 270 (Ohio the position of the Restatement (Second) of Torts § 323 in 1989), which is also reviewed de novo by this court, see Wissel v. Ohio High School Athletic Association, 605 N.E.2d Hostetler v. Consolidated Rail Corp., 123 F.3d 387, 390 (6th 458 (Ohio Ct. App. 1992). That section states as follows: Cir. 1997). However, DP&L also argues that the jury could not have found, based on the evidence presented at trial, that One who undertakes, gratuitously or for consideration, to it assumed a specific duty to de-energize the primary lines or render services to another which he should recognize as that it failed to de-energize the secondary lines with necessary for the protection of the other's person or reasonable care. This court has held that the district court — things, is subject to liability to the other for physical and this court in its de novo review — must apply state-law harm resulting from his failure to exercise reasonable standards to determine whether the evidence was sufficient to care to perform his undertaking, if support the jury’s verdict. See K&T Enters., 97 F.3d at 176. ... Therefore, this court, like the district court, construes the (b) the harm is suffered because of the other's reliance evidence most strongly in favor of the non-movant; if there is upon the undertaking. substantial evidence supporting the jury verdict, about which reasonable minds may disagree, the motion is properly RESTATEMENT (SECOND) OF TORTS § 323 (1965); see Wissel, denied. See Hostetler, 123 F.3d at 390; see also Cardinal v. 605 N.E.2d at 464-65; see also Best v. Energized Substation Family Foot Care Ctrs., Inc., 532 N.E.2d 162, 164 (Ohio Ct. Serv., Inc., 623 N.E.2d 158, 162 (Ohio Ct. App. 1993) App. 1987); OHIO CIV. R. 50(A)(4). Under Ohio law, the (“When one voluntarily assumes a duty to perform, and credibility of the witnesses and the weight of the evidence are another reasonably relies on that assumption, the act must be not to be considered when ruling on such a motion. See performed with ordinary care.”); Smith v. Cincinnati Gas & Cardinal, 532 N.E.2d at 164. Elec. Co., 600 N.E.2d 325, 327 (Ohio Ct. App. 1991) (holding that the defendant utility “assume[d] a general duty 2. Appropriateness of the District Court’s Denial of the Motions To make out a claim for negligence, a plaintiff must show the existence of a duty. See Estates of Morgan v. Fairfield