Trial Court Nos. CVH 20110137 CVH 20110299 CVH 20110538
Florence J. Murray and Dennis E. Murray, Sr., for appellant.
Timothy C. James and Lorri J. Britsch, for appellees.
DECISION AND JUDGMENT
(¶ 1} Appellant, Donald Simpson, appeals the March 29, 2012 judgment of the Huron County Court of Common Pleas which, following a jury trial, entered judgment in favor of appellees, Stieber Bros., Inc., KRD Ltd., Robert Stieber, Daniel Stieber, and Kevin Stieber, in a negligence action. For the reasons that follow, we affirm.
(¶ 2} On June 23, 2011, appellant commenced a negligence action against appellees for personal injuries he sustained as a result of the November 30, 2010 grain silo collapse in Norwalk, Ohio. The collapse caused several hundred tons of corn to spill onto a roadway in a residential area. As a result of the spill, appellant's vehicle was pushed off the road and into a telephone pole. Appellant alleged that appellees failed to use reasonable care in in specting, loading and controlling the silo pressure. In their answer, appellees asserted the defense that intervening and superseding negligent acts of a third party was the proximate cause of appellant's alleged injuries and damages.
(¶ 3} On November 30, 2011, appellant filed a motion to amend his complaint to include a claim for battery. On January 27, 2012, appellees filed a motion to amend their answer to plead the affirmative defense that the conduct of a third-party, the manufacturer of the silo that failed, was the proximate cause of appellant's injuries.
(¶ 4} Appellant's motion to add a battery claim was denied. Appellees' motion to add the third-party affirmative defense was also denied. On February 28, 2012, the case proceeded to a jury trial and the following relevant evidence was presented.
(¶ 5} Police officers testified that appellant was observed at the scene of the corn spill and that his car was damaged. Appellant did not appear to have been injured. The day after the spill, appellant took his car to the police station and it was photographed; the photos were admitted into evidence.
(¶ 6} Appellee, Robert Stieber, testified that the grain bin was owned by KRD, Ltd. consisting of Kevin, Robert and Daniel Stieber. Robert testified that internal inspections of the bin were conducted twice yearly; once in July after the grain was unloaded and in August or September prior to reloading the bin. Robert testified that his 30 years of farming experience qualified him to know if the grain silo needed maintenance.
(¶ 7} Robert speculated that in 1995, when KRD purchased the bin, the insurance company inspected it because it agreed to provide insurance for it. After purchasing the silo in 1995, KRD leased the silo back to the seller, Sunrise, Inc., until approximately 2005. Robert stated that this was not a yearly arrangement but that he could not exactly recall which years they leased it back. In 2005, KRD began filling the silo with its own grain.
(¶ 8} Similarly, Kevin Stieber testified that he conducted visual inspections of the silo which was built in 1971. Kevin stated that the inspections were conducted to ensure that moisture was not getting into the silo and damaging the corn. Kevin admitted that there was no fixed inspection schedule and that there were no written inspection reports. Kevin stated that they experienced no prior issues with the bin.
(¶ 9} Appellant's expert, architect and building contractor John Feick, testified that he inspected the remains of the silo on September 1, 2011. In Feick's opinion, the collapse of the silo was due to the combination of the grain shifting and causing stress on the west side of the silo where some concrete deterioration had occurred and rusting on the interior surface of the silo.
(¶ 10} Feick testified that he did not know what caused the grain to shift before the collapse. Feick further acknowledged that he could find no written standards for silo maintenance. Feick investigated the manufacturer of the silo and found no history of prior failures due to a design defect. Feick denied that there was an inherent design defect which caused the collapse.
(¶ 11} Appellant's treating neurosurgeon, Bo Yoo, M.D., testified that he first saw appellant in 2003, when he performed a discectomy with fusion at the C5-C6 vertebrae. After surgery and his follow-up appointments, appellant next saw Dr. Yoo on March 8, 2011, following a referral from appellant's primary care physician. Appellant complained of exacerbated neck and right arm pain following the November 2010 accident. An MRI revealed a disc protrusion at C6-C7; Dr. Yoo stated that this was a new finding. Dr. Yoo sent appellant to physical therapy. On June 2, 2011, appellant returned to Yoo's office after minimal success during therapy. Dr. Yoo stated that, at this point, surgery was recommended. Dr. Yoo acknowledged that the 2003 MRI showed degeneration in the C6-C7 vertebrae. He also acknowledged that it is common to have issues in the areas next to the fused vertebrae.
(¶ 12} Appellant testified that in April 2003, he had neck surgery and was back to work and playing golf within six to eight weeks. Appellant was also unable to work or play golf following a 2009 workplace injury and workers' compensation claim. Appellant was off of work for approximately six months and was cleared to return in December 2009, just as his employer was closing. Appellant worked at the same factory for 38 years.
(¶ 13} On the date of the silo collapse, appellant stated that at approximately 3:30 p.m. he was driving to his daughter's house and proceeding south on State Street in Norwalk, Ohio, when he heard two snaps. He looked over and observed that the silo had split down the middle and that corn was spilling out "like a tidal wave." Appellant said that his vehicle was completely engulfed in corn and that he eventually moved off the corn and into a pole. Appellant believed that the vehicle would have overturned had it not been stopped by the pole. Appellant's air bag did not deploy and his eyeglasses did not fall off Appellant stated that he grabbed the back of his neck and that "something wasn't right." Appellant testified that he delayed seeking medical treatment due to the holiday season and questions about his health coverage.
(¶ 14} Appellant admitted that, during a prior deposition, he had forgotten about a March 6, 2007 work incident which resulted in an emergency room visit. The emergency room reported stated that appellant complained of left neck and posterior shoulder pain after pulling something at work and feeling a "pop." Appellant was further questioned about the May 2009 incident which resulted in the workers' compensation claim. Appellant stated that when he went to the doctor on January 4, 2011, for a follow-up appointment relating to his workers' ...