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Larry Hewitt v. the L.E. Myers Co.

October 20, 2011

LARRY HEWITT PLAINTIFF-APPELLEE
v.
THE L.E. MYERS CO., ET AL. DEFENDANTS-APPELLANTS



JUDGMENT: AFFIRMED Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-711717

The opinion of the court was delivered by: Mary Eileen Kilbane, A.J.:

Cite as Hewitt v. L.E. Myers Co.,

JOURNAL ENTRY AND OPINION

BEFORE: Kilbane, A.J., Blackmon, J., and Celebrezze, J.

{¶1} Defendant-appellant, The L.E. Myers Co. (L.E. Myers), appeals from the trial court's judgment denying its motion for directed verdict and motion for judgment notwithstanding the verdict. Finding no merit to the appeal, we affirm.

{¶2} The instant appeal arises from a workplace intentional tort action filed by Larry Hewitt (Hewitt) against L.E. Myers; the Administrator, Bureau of Workers' Compensation (BWC); and the former Ohio Attorney General, Richard Cordray (OAG).*fn1 Hewitt filed his complaint in December 2009, and was granted leave to amend on April 14, 2010.*fn2

{¶3} The amended complaint alleges that in June 2006, Hewitt, a second-step apprentice lineman for L.E. Myers, was electrically shocked after he was instructed by his supervisor to work alone in an elevated lift machine (bucket) with energized high-voltage power equipment and without wearing his protective safety equipment. He alleges his superiors told him that he did not have to wear his protective rubber gloves and sleeves while replacing the high-voltage electrical line with a new line. Hewitt claims that unbeknownst to him, the lines were not all de-energized and he inadvertently contacted an energized wire. Hewitt alleges L.E. Myers knew with a substantial certainty that he would be injured when working alone in an elevated lift machine with live high-voltage power transmission equipment and without proper safety equipment or training. Hewitt claims that as a result of this incident, he sustained multiple and permanent injuries, emotional distress, pain and suffering, and other damages.*fn3

{¶4} L.E. Myers moved to dismiss the first amended complaint, or in the alternative, leave to file a motion for summary judgment. The trial court denied the motion to dismiss and leave to file a motion for summary judgment. L.E. Myers asked the trial court to reconsider the denial of its motion for leave to file for summary judgment. The trial court granted L.E. Myers' request and L.E. Myers filed its motion for summary judgment in July 2010. However, L.E. Myers' motion for summary judgment was subsequently stricken from the record for failing to comply with the court's discovery orders. The matter proceeded to a jury trial, at which the following evidence was adduced.

{¶5} In early 2005, Hewitt enrolled in the American Line Builders Apprenticeship Training Program (ALBAT). When he completed this program, Hewitt became certified as an apprentice and began working with L.E. Myers. L.E. Myers hired Hewitt, through a local union, to assist with the installation of new electrical wires along Route 60 in New London, Ohio.

{¶6} At the time of the incident, Hewitt was a second-step apprentice, which meant that he was in the early stages of his apprenticeship. At the second step, a person learns the trade and how to climb utility poles under a journeyman lineman's supervision.

A second-step apprentice is not certified to work around any voltage greater than 500 volts. There are seven steps in the ALBAT program before an apprentice completes the apprenticeship program and becomes a lineman.

{¶7} On June 14, 2006, Hewitt reported to the New London worksite with his co-workers. Journeyman lineman Dennis Law (Law) supervised Hewitt that day and informed Hewitt that he would be replacing the wiring on the poles alone in the bucket above, while Law directed traffic below. Law testified the crew was short-staffed, so he was instructed to direct traffic in addition to supervising Hewitt. Law asked Hewitt if he had a problem working alone in the bucket. Hewitt was nervous and replied, "yeah, I never been up by myself." Law told him that he "would be okay." Hewitt testified Law then told him that he "shouldn't need no rubbers [protective gloves] going up to work on the line" because he would not be working with energized wires. Thus, Hewitt believed that he was not going to be working with any energized lines that day.

{¶8} Hewitt maneuvered his bucket near the wires and removed the neutral wire wearing his leather gloves. Law was flagging traffic while simultaneously attempting to supervise Hewitt alone in the bucket 35 feet above. He yelled "hey" to Hewitt, which caused Hewitt to look over his shoulder. Law intended to tell Hewitt to put on his rubber gloves. As Hewitt looked back, the tie wire he held in his right hand touched an energized wire, causing him to be electrically shocked. Hewitt then maneuvered himself to the ground. He tried to pull up his sleeve, but his shirt was stuck to his arm. Hewitt testified that his arm looked like a burnt cigarette. Hewitt's burns cover his entire arm, underneath his underarm, around his shoulder, and onto his back.

{¶9} Foreman Julian Cromity (Cromity) testified that on that morning he had a discussion with crew foreman Steve Dowdy (Dowdy) that it would be good experience for the apprentices to clip in the wire without wearing their rubber gloves and sleeves because it was hot that day and the primary line was de-energized. However, Law testified that he told Hewitt to wear rubber gloves and sleeves and Dowdy told everyone to wear rubber gloves and sleeves. L.E. Myers District Superintendent Jack Ehle investigated the incident. Following his investigation, L.E. Myers terminated three employees: Law, Dowdy, and foreman Jeff Erman (Erman).

{¶10} Hewitt filed a workers' compensation claim that was allowed for a number of conditions, including secondary burns to the right: forearm, axilla, thumb, and wrist, third degree burns to the right hand and arm, right median nerve injury, major depression, moderate posttraumatic stress disorder, and Reflex Sympathetic Dystrophy (RSD) of the right upper limb.

{¶11} At the conclusion of Hewitt's case, L.E. Myers moved for directed verdict, raising four issues. L.E. Myers argued it was entitled to judgment as a matter of law with respect to: (1) liability under R.C. 2745.01; (2) future injury; (3) past non-economic damages; and (4) punitive damages. The trial court denied L.E. Myers' motion with respect to future injury, past non-economic damages, and punitive damages. However, the trial court found that Hewitt failed to prove his case with respect to R.C. 2745.01(A) and (B). As a result, this limited Hewitt's theory of recovery to R.C. 2745.01(C). L.E. Myers did not present any witnesses, and its renewed motion for directed verdict was denied by the trial court. The jury returned a verdict in Hewitt's favor, awarding him $597,785 in compensatory damages. L.E. Myers then moved for judgment notwithstanding the verdict (JNOV), which the trial court denied.

{¶12} L.E. Myers now appeals, raising the following two assignments of error for review.

ASSIGNMENT OF ERROR ONE

"The trial court erred in denying [L.E. Myers'] motion for directed verdict and JNOV."

ASSIGNMENT OF ERROR TWO

"In the alternative, L.E. Myers was entitled to partial JNOV on Hewitt's claim for future damages."

Standard of Review

{¶13} We employ a de novo standard of review when reviewing a motion for directed verdict and a JNOV because these motions present questions of law and not factual issues. Nationwide Mut. Fire Ins. Co. v. Guman Bros. Farm, 73 Ohio St.3d 107, 108, 1995-Ohio-214, 652 N.E.2d 684; Grau v. Kleinschmidt (1987), 31 Ohio St.3d 84, 90, 509 N.E.2d 399.

Directed Verdict and Judgment Notwithstanding the Verdict

{¶14} Civ.R. 50 sets forth the standard for granting a motion for a directed verdict and a motion for JNOV:

"When a motion for directed verdict has been properly made, and the trial court, after construing the evidence most strongly in favor of the party against whom the motion is directed, finds that upon any determinative issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to each party, the court shall sustain the motion and direct a verdict for the moving party as to that issue. Id. at (A)(4).*fn4

"Whether or not a motion to direct a verdict has been made or overruled * * * a party may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with his motion; or if a verdict was not returned, such party, * * * may move for judgment in accordance with his motion. A motion for a new trial may be ...


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