McCarthy v. Sterling Chemicals, Inc.

Wolff, Judge.

{¶ 1} Plaintiff-appellee Patrick McCarthy, an employee of third-party defendant-appellee Kinder Morgan Liquids Terminals, L.L.C. (“Kinder Morgan”), was injured on July 5, 2005, while transferring a liquid from a pressurized railroad tank car owned by defendant-appellant Sterling Chemicals, Inc. (“Sterling”) to a Kinder Morgan storage tank. McCarthy was standing on the top of the railcar when the manway assembly separated from the car. McCarthy was struck by the manway assembly and fell 15 feet to the ground. McCarthy and his two minor children filed suit against various defendants including railcar owner Sterling, railcar manufacturer defendant-appellee ACF Industries, L.L.C. (“ACF”), defendant-appellant Rescar, Inc. (“Rescar”), which had been hired by Sterling to maintain its fleet of railroad cars, and defendant-appellee Texana Tank Car & Manufacturing, Ltd. (“Texana”), which had formerly maintained the railcar. Various defendants filed third-party complaints against McCarthy’s employer, Kinder Morgan.

{¶ 2} The trial court granted summary judgment in favor of Kinder Morgan, determining that there was no genuine issue of material fact as to whether Kinder Morgan had committed an intentional tort against McCarthy and, therefore, that Kinder Morgan was not liable for damages. The court further determined that even though it was not liable for damages, Kinder Morgan would appear on the jury’s apportionment form pursuant to R.C. 2307.23(A)(2), which requires that the jury determine the “percentage of tortious conduct that proximately caused the injury * * * that is attributable to each person from whom the plaintiff does not seek recovery.” The court’s judgment entry contained a certification pursuant to Civ.R. 54(B) that there was no just reason for delay. Rescar and Sterling appealed the granting of summary judgment in favor of Kinder Morgan in the cases numbered C-090077 and C-090082 respectively.

{¶ 3} The case proceeded to a jury trial. After the plaintiffs’ case-in-chief, the trial court granted directed verdicts for ACF and Texana, ruling that a May 2000 “change out” of the railcar’s original 35-psi pressure-relief valve for a 75-psi valve constituted a substantial and material alteration of the railcar that relieved ACF and Texana of any liability.

{¶ 4} The trial court instructed the jury that McCarthy had the burden to prove by a preponderance of the evidence that Sterling and/or Rescar had been negligent and that the negligence had proximately caused McCarthy’s injuries. The court also instructed the jury that to apportion fault to McCarthy and/or Kinder Morgan, it had to find by a preponderance of the evidence that McCarthy and/or Kinder Morgan had been negligent and that the negligence had proximately caused McCarthy’s injuries.

{¶ 5} The court further instructed the jury, “The defendants are required to use ordinary care to discover and avoid danger. The plaintiffs claim that the defendants failed to use ordinary care in maintaining, inspecting, and/or repairing a tank car. As discussed above, ordinary care is the care that a reasonably careful person would use under the circumstances. In considering this, you must decide what the facts and circumstances were, then you must decide whether the defendants used ordinary care. If the defendants did not use ordinary care, they were negligent; if the defendants used ordinary care, they were not negligent.”

{¶ 6} In instructing the jury about the effect of “industry regulations,” the trial court stated, “Since the defendants’ alleged negligence involves matters not within common knowledge, the parties introduced administrative laws, industry standards for organizations such as the American Association of Railroads and the American Welding Society. You may consider these materials in determining what duty, if any, the defendants owed to the plaintiffs in this case, and whether or not the defendants breached this duty.”

{¶ 7} The trial court instructed the jury that in assessing negligence, it was to “consider the defendants’ own internal procedures” in determining the duty owed to the plaintiffs. The court told the jury that “[wjhen a defendant has disregarded rules that it has established to govern the conduct of its own employees, evidence of those rules may be used against the defendant to establish the correct standard of care. The content of such rules may also indicate knowledge of the risks involved and the precautions that may be necessary.”

{¶ 8} The court explained the general verdict form, the interrogatories, the apportionment-of-fault form, and the damages form, which were given to the jury as a multipage document. Page four of the document referred to “non-party” Kinder Morgan. The court explained that if the jury found by a preponderance of the evidence that Kinder Morgan’s actions were a proximate cause of McCarthy’s injuries, it had to determine a “percentage of fault” to assign to Kinder Morgan.

{¶ 9} After the jury began deliberations, it returned with a question about the forms, asking, “How do we move forward from page (6) if we place the greater percentage of blame towards Kinder Morgan.” Page six contained the apportionment-of-fault form. The court instructed the jury that it was to “continue to move through the document.” The jury also requested the testimony of the “witness or Kinder Morgan employee who testified Patrick would have been written up for unloading procedure used.” The jury subsequently returned with requests for the testimony of a certain witness who had testified concerning Kinder Morgan’s practices and procedures, a Kinder Morgan tank-car inspection checklist, Kinder Morgan’s unloading procedures, and Kinder Morgan’s unloading-training procedures.

{¶ 10} The jury unanimously found in favor of Sterling and Rescar. The jury interrogatories indicated that the jury had found no negligence on the part of Sterling, Rescar, McCarthy, or Kinder Morgan. Plaintiffs moved for judgment notwithstanding the verdict or, in the alternative, for a new trial. The trial court granted plaintiffs’ motion for a new trial. The court stated that it had granted the motion for a new trial because the court believed that in instructing the jury, it had not adequately explained that duties arising under “regulations and statutes” did not “trump” the duties arising under “common law.” The court added that it believed that the jury had not been “fully informed” by the court’s instructions regarding the relationship between the duty of ordinary care owed to McCarthy by Sterling and Rescar and the duties that arose from statutes and regulations governing the industry. Sterling and Rescar have appealed the trial court’s granting of the motion for a new trial in the cases numbered C-090691 and C-090700 respectively.

{¶ 11} In the appeals numbered C-090077 and C-090082, Rescar and Sterling each raise one assignment of error, asserting that the trial court erred in granting Kinder Morgan’s motion for summary judgment.

{¶ 12} Summary judgment is appropriate when, "with the evidence construed most strongly in favor of the nonmoving party, the evidence shows that there is no genuine issue as to any material fact, the moving party is entitled to judgment as a matter of law, and reasonable minds can come to but one conclusion, and that conclusion is adverse to the party against whom the motion for summary judgment is made.¹

{¶ 13} R.C. 2745.01(A) states, “In an action brought against an employer by an employee, or by the dependent survivors of a deceased employee, for damages resulting from an intentional tort committed by the employer during the course of employment, the employer shall not be hable unless the plaintiff proves that the employer committed the tortious act with the intent to injure another or with the belief that the injury was substantially certain to occur.” Pursuant to R.C. 2745.01(B), “ ‘substantially certain’ means that an employer acts with deliberate intent to cause an employee to suffer an injury, a disease, a condition, or death.”²

{¶ 14} Sterling and Rescar argue that Kinder Morgan failed to provide fall protection for McCarthy, failed to adequately train and supervise McCarthy, and exposed McCarthy to a substantial risk of injury by requiring him to work on top of the railcar. Those alleged failures do not rise to the level of intent or deliberate intent to cause injury required by R.C. 2745.01. Sterling admits in its brief that it “has never claimed that Kinder Morgan deliberately intended to harm Mr. McCarthy.” And Rescar does not point to any evidence that Kinder Morgan intended to injure McCarthy.

{¶ 15} Construing all the evidence in a light most favorable to Sterling and Rescar, we hold that the record contains nothing to demonstrate that Kinder Morgan committed a tortious act with the intent to injure McCarthy or that it acted with deliberate intent to cause McCarthy to suffer an injury. The record before us compels the conclusion under R.C. 2745.01 that there is no genuine issue of material fact and that Kinder Morgan was entitled to judgment as a matter of law. The assignments of error are overruled, and the judgment of the trial court is affirmed, in the appeals numbered C-090077 and C-090082.

{¶ 16} Sterling’s first assignment of error in the appeal numbered C-090691 and Rescar’s first assignment of error in the appeal numbered C-090700 assert that the trial court erred in granting McCarthy’s motion for a new trial.

{¶ 17} We must first determine whether the trial court’s decision to grant a new trial is to be reviewed de novo as a matter of law or under an abuse-of-discretion standard. Civ.R. 59 provides that the trial court may grant a new trial for an “[e]rror of law occurring at the trial and brought to the attention of the trial court by the party making the application”³ or “in the sound discretion of the court for good cause shown.”⁴ What the trial court has “specified in writing as the cause for which the new trial was allowed” determines the scope of appellate review.⁵ “Where a trial court is authorized to grant a new trial for a reason which requires the exercise of a sound discretion, the order granting a new trial may be reversed only upon a showing of abuse of discretion by the trial court. Where a new trial is granted by a trial court, for reasons which involve no exercise of discretion but only a decision on a question of law, the order granting a new trial may be reversed upon the basis of a showing that the decision was erroneous as a matter of law.”⁶

{¶ 18} In the judgment entry granting the motion for a new trial in this case, the trial court stated, “And so, under the Rules of Civil Procedure 59, the court can grant a new trial if the court finds that there was an error of law, among other things. This court believes, and it’s based on a number of things. It’s based upon, first of all, the fact as I sit throughout this hearing that this case was inundated by both statutes, regulations, AAR, Welding Society regulations, administrative laws, that most of these documents and regulations went to the jury for their consideration. It is my finding that those duties do not replace or trump those duties that arise at law. * * * I don’t characterize this as a misstatement of law, but as a lack of a complete and thorough explanation of what the law is in this case. * * * I think that this court should have said that there are duties that rise at law that prevail regardless of whether an industry is regulated or not. And that you are to consider, as jurors, those duties that rise at law in conjunction with any duties that may or may not arise in any industry, but those duties that arise at law are not supplanted by the duties that rise from the self-policing or the federal regulation of a[n] industry unless those laws specifically say so. And that wasn’t said in this case. * * * In looking at the charge, I agree that the court discussed issues of ordinary care and discussed issues of the federal regulations and administrative laws and standards. But this court did not make a distinction that despite the fact that [this] is a highly regulated industry that those regulations do not take precedence over the duty of ordinary care that is imposed upon anyone who’s engaged in activities such as this. And so, for that reason, this court will grant a new trial. * * * [TJhis court feels that there should have been a distinction, should have been a lengthy and proper explanation as to those duties that arise at law as they compare to duties that arise by way of statutes and regulations, and how those duties interact with one another and how those duties — one doesn’t trump the other. * * * I wrote this jury charge based upon OJI [the Ohio Jury Instructions] and based upon the suggestions of both sides of the case. But let me say for purposes of this case that this court considers OJI as the road map that the court used to tailor jury instructions, but jury instructions have to be tailored for each and every case, especially a case that is as long and complicated as this one. And I think that OJI serves as the basic road map, but I think sometimes courts need to go further based upon case law, based upon on each case on its own and not violate the law, but yet give an instruction that gives a jury a clear understanding of what the law is and how these laws relate to one another. I just don’t think that was done in this case.”

{¶ 19} In Bellman v. Helmsworth,⁷ Mae Rita Bellman sued her deceased husband’s doctor, J.A. Helmsworth, for medical malpractice. After the jury had returned a verdict in favor of Helmsworth, Bellman filed a motion for a new trial on the basis that the trial court’s jury instruction on informed consent was erroneous and that she was “entitled to a directed verdict on this subject.” The trial court granted a new trial because it believed that even though the jury instruction on informed consent was “technically correct,” a more detailed instruction on informed consent might have allowed the jury to determine “that informed consent was lacking in this case.” The court determined that while the instruction was “technically correct,” it did not sufficiently' “amplify the standard that the jury could use to determine the answer to this issue.”

{¶ 20} On appeal, this court stated that the Bellman trial court’s conclusion that the jury instruction, although “technically correct,” was insufficient as a matter of law to a degree that prejudiced Bellman was tantamount to a determination that while the informed-consent charge may have been a correct statement of the law in a different factual context, in the factual context presented it was not a correct statement of the law and, as a result, may have influenced the jury to find against Bellman “in a way that a more comprehensive instruction may not have done.” This court, citing O’Day v. Webb,⁸ noted that instructing the jury was a mandatory, nondiscretionary duty of the trial court and that questions relating to the failure of the court to discharge that duty were questions of law, not of fact. Therefore, this court held, the trial court’s decision to grant a new trial had to be reviewed de novo to determine whether it was erroneous as a matter of law.

{¶ 21} In the case sub judice, the trial court determined that even though its jury instructions on negligence, ordinary care, and duty were correct, it should have given a more detailed instruction on the relationship between the duties that arose under the industry regulations and the duty of ordinary care under “common law.” The court believed that it should have instructed the jury more clearly that the duties that arose under the industry regulations did not “trump” the “common law” duty to exercise reasonable care. The court appeared to say, as did the trial court in Bellman, that the instruction given, although correct, was an insufficient statement of the law in the factual context of the case. Therefore, pursuant to Bellman, the trial court’s decision must be reviewed de novo to determine whether it was erroneous as a matter of law.

{¶ 22} The parties have cited Nance v. Akron City Hosp.⁹ Nance’s executor sued Akron Radiology and Dr. Syed Ali for medical malpractice. The trial court instructed the jury that it had to consider whether the doctor’s negligence was “the” proximate cause of Nance’s death. In response to a question from the jury, the court again instructed the jury that it had to consider whether the doctor’s negligence was “the” proximate cause of Nance’s death. The jury returned a verdict for the defendants. Nance moved for a new trial on the basis that the trial court’s instructions had confused the jury about whether the defendants’ negligence had to be “the” proximate cause or “a” proximate cause of Nance’s death. The trial court stated that it was granting the motion (1) based upon the failure of the jury instructions “as a whole” to “fairly and accurately state the law to be applied,” and (2) in the exercise of the court’s discretion because the court concluded that even if the instructions were legally correct, they may have misled the jury and placed undue emphasis on the issue of whether the doctor’s negligence was the sole proximate cause of Nance’s death.

{¶ 23} On appeal, the Ninth Appellate District noted that the trial court had stated that it was granting the motion for a new trial on a question of law as well as in the court’s sound discretion. The court pointed out the distinction between granting the motion for a new trial on the basis that the jury instructions as a whole failed to fairly and accurately state the law to be applied in the case, which the appellate court characterized as a question of law, and granting the motion in the trial court’s sound discretion on the basis that the instructions, although correct, may have misled the jury by placing undue emphasis on the issue of whether the doctor’s negligence was the sole proximate cause of the injuries. The appellate court stated that the jury’s question showed that it had been confused by the court’s instructions. The court had compounded that confusion by its answer to the jury’s question. The appellate court upheld the granting of the motion for a new trial, holding that in light of the jury confusion demonstrated in the record, the trial court had not abused its discretion.

{¶ 24} Nance is distinguishable from the ease sub judice because the confusion on the part of the Nance jury was clearly demonstrated in the record. In other words, in Nance the record demonstrated that there was good cause for the granting of a new trial, something not present in this case.

{¶ 25} In the judgment entry granting the motion for a new trial in this case, the trial court stated, “And so, under the Rules of Civil Procedure 59, the court can grant a new trial if the court finds that there was an error of law, among other things.” This indicates that the trial court granted the motion under Civ.R. 59(A)(9), which provides that the court may grant a new trial on an “[ejrror of law occurring at the trial and brought to the attention of the trial court by the party making the application.”

{¶ 26} Bellman requires us to apply the erroneous-as-a-matter-of-law standard to the facts in this case. The record shows that three and a half volumes of the transcript of the proceedings were devoted to argument about and discussion of the jury instructions. The trial court gave verbatim McCarthy’s requested instructions on negligence, ordinary care, and duty. The court’s jury instructions correctly stated the applicable law, including the relationship between the duty to use ordinary care and the duties imposed by industry regulations. There is no indication in the record that the jury was confused by the court’s instructions. From the beginning of the deliberations, the jury appeared to focus on Kinder Morgan as the negligent party. The only evidence of jury confusion in the record is the jury’s confusion about how to fill out the apportionment form as to “non-party” Kinder Morgan. In short, there is nothing in the record to support the trial court’s determination that the jury was confused about the court’s instructions on the duty of care, except that a defense verdict was apparently unexpected.¹⁰

{¶ 27} If it is assumed, as the dissent argues, that the abuse-of-discretion standard set forth in the “catch-all” provision of Civ.R. 59 is applicable in this case, the record does not demonstrate good cause for a new trial because there is absolutely no indication that the jury was confused by the court’s instructions. The assignments of error are sustained.

{¶ 28} The remaining assignments of error raised by Sterling and Rescar are made moot by our disposition of the first assignments of error. The judgment of the trial court is reversed in the appeals numbered C-090691 and C-090700, and the cause is remanded to the trial court with instructions to reinstate the jury verdict in favor of Sterling and Rescar and to enter judgment accordingly. The trial court’s judgment is affirmed in the appeals numbered C-090077 and C-090082.

Judgment accordingly.

Brogan, P.J., concurs. Gorman, J., concurs in part and dissents in part. James A. Brogan, J., retired, of the Second Appellate District, William H. Wolff Jr., J., retired, of the Second Appellate District, and Robert H. Gorman, J., retired, of the First Appellate District, sitting by assignment.

1 . Civ.R. 56(C).

2 . R.C. 2745.01 was upheld as constitutional by the Ohio Supreme Court in Kaminski v. Metal & Wire Prods. Co., 125 Ohio St.3d 250, 2010-Ohio-1027, 927 N.E.2d 1066.

3 . Civ.R. 59(A)(9).

4 . Civ.R. 59(A).

5 . See O’Day v. Webb (1972), 29 Ohio St.2d 215, 58 O.O.2d 424, 280 N.E.2d 896; Bellman v. Helmsworth (June 20, 1979), 1st Dist. Nos. C-780135 and C-780139, 1979 WL 208686.

6 . See Rohde v. Farmer (1970), 23 Ohio St.2d 82, 52 O.O.2d 376, 262 N.E.2d 685, paragraphs one and two of the syllabus.

7 . Bellman v. Helmsworth, 1979 WL 208686.

8 . See O'Day v. Webb, 29 Ohio St.2d 215, 58 O.O.2d 424, 280 N.E.2d 896.

9 . Nance v. Akron City Hosp. (May 23, 2001), 9th Dist. No. C.A. 20112, 2001 WL 542323.

10 . Although the trial court stated that it was not granting the motion for a new trial based on the evidence or on the jury’s verdict for the defense, the court expressed its "surprise” at the verdict.