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Immune, Not Forgotten: Ohio’s First District Holds Immune Employer Can Be Used as an “Empty Chair” When Considering Apportionment of Fault

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By Patrick Kasson and Thomas Spyker

August 13, 2019

Ohio’s First District Court of Appeals (Hamilton County) recently held that an immune party must be considered when determining apportionment of fault where there is evidence of the immune party’s negligence, a decision overturning a $28 million-dollar jury verdict in a wrongful death case. 

In Jester v. Utilimap Corp, 1st Dist. 2018-Ohio-4755, Plaintiff, Christa Jester, on behalf of her husband Keith Jester’s estate, sued Duke Energy and the Utilimap Corporation after her husband, a Duke Energy lineman, died when a rotted pole he was climbing collapsed on top of him.  

Keith Jester was part of a Duke Energy crew tasked with replacing traditional electrical lines with an underground system.  About two and a half years before the replacement project began, Duke contracted with Utilimap to inspect 30,000 wood powerline poles – including the pole at issue – for signs of rot or decay.  But because this pole was located on inaccessible private property, Utilimap never actually inspected it.

Plaintiff’s Complaint alleged Utilimap failed to inspect the pole and that Duke was also negligent for failing to provide a safe workspace.  There was some evidence suggesting Duke was  negligent.  Duke produced a PowerPoint presentation which suggested that its pre-climb inspection standards had been missing “key content.”  Duke also produced an internal audit revealing it had been aware that some of the 30,000 poles were never actually inspected.

But ultimately Duke was dismissed before trial.  Duke, as Jester’s employer, was found immune from the negligence-based suit under Ohio’s workers’ compensation statute. 

After Duke’s dismissal, Plaintiff argued Utilimap should be barred from introducing the evidence of Duke’s negligence and raising the “empty-chair” defense provided under R.C. § 2307.23.  The trial court agreed, finding that since Duke was immune, their negligence “did not exist as a matter of the law.”  The case proceeded to a lengthy jury trial and the large verdict was returned fully against Utilimap. 

On appeal, the First District analyzed whether Utilimap should have been allowed to raise the “empty-chair” defense against an immune employer. Ohio’s apportionment statute allows a defendant to introduce evidence of a nonparty’s negligent conduct.  A jury may assign a percentage of fault to the nonparty, reducing any verdict against the named defendants by the same percentage of fault allocated to the nonparty. 

The  First District analyzed the word “nonparty” and whether an immune employer qualified as such under the statute’s meaning.  And the Court found that since an immune party could still have acted negligently contributing to a plaintiff’s injury that party must be considered if there is evidence of the negligence.  The Court reasoned the statute required consideration of all possible negligent actors—regardless of whether a plaintiff is able to seek recovery from the nonparty. 

At trial, Plaintiff had relied on a Fifth District case which held immune employers could not be considered for the “empty-chair” defense because the employer’s negligence does not exist “as a matter of law.”  Romig v. Baker Hi-Way Express, Inc., 2012-Ohio-321, (5th Dist. 2012), at ¶ 46.  On appeal, Plaintiff focused on factual issues, arguing there was not sufficient evidence of Duke’s negligence to submit to the jury.  The Court disagreed, pointing out the PowerPoint and audit. 

Notwithstanding this decision, Romig remains viable precedent on this topic because Ohio’s Supreme Court has not addressed the issue directly.  However, the First District’s decision in Jester makes it the second influential district in the state to expressly reject Romig’s holding, joining Cuyahoga County which did so two years earlier in Root v. Stahl Scott Fetzer Co., 2017-Ohio-5251, (8th Dist.).

While Ohio courts technically remain split on this issue, the Jester decision adds to a growing body of case law finding that immune parties must be considered for apportionment purposes.   

If you have any questions regarding the decision, or wish a copy of this opinion, or have any other employer/employee relation question, please feel free to call any member of Reminger’s General Liability/Surplus Risks Claims group.

This has been prepared for informational purposes only. It does not contain legal advice or legal opinion and should not be relied upon for individual situations. Nothing herein creates an attorney-client relationship between the Reader and Reminger. The information in this document is subject to change and the Reader should not rely on the statements in this document without first consulting legal counsel.

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