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Jester v. Utilimap Corp. - 2018-Ohio-4755 (Ct. App.)


Where a state law provides for joint and several tort liability as well as apportionment of fault among tortfeasors, a defendant can raise the empty-chair defense with respect to an injured's employer, and a jury can apportion fault to that employer under state law. The question then becomes whether the defendant employer acted tortiously, and whether those actions proximately caused the employee's injury.


Duke Energy sought to remove a line of four utility poles on a farm in Warren County, Ohio, and replace the above-ground lines with an underground line. The poles were located inside private property, and the employees would not be able to reach the wires with a truck, so they would have to manually climb the poles. Jester, a senior lineman, volunteered to do the job and lead a training exercise in the process. Jester and the crew headed out to do the job in late February 2014. The crew removed the equipment from the first old pole and let down two electrical wires that had been hanging between the first and second poles. At this point a gap formed at the ground line at the base of the second pole. Prior to climbing, Jester's co-workers watched him sound test the pole with his hammer and the pole sounded solid. Jester and another Duke Energy grounds man began climbing the second pole, which stood 40 feet tall. While both men were on the pole, the pole broke below the ground line with Jester taking the brunt of the force of the falling pole. Jester died at the hospital from internal injuries. An investigation into the incident ensued and Duke Energy determined that the pole had been severely decayed below the ground line. Christa Jester, the wife of the deceased, filed a wrongful death action against Duke Energy and pole inspection company Utilimap. Christa alleged that Duke Energy had a duty to ensure a safe workplace and breached that duty because it failed to take steps to address inaccurate and incomplete inspection data from Utilimap and failed to inspect the pole. Christa alleged that Utilimap was negligent in performing its inspection.  The trial court granted summary judgment to Duke Energy, finding that no genuine issue of material fact existed as to whether an intentional tort had been committed. The trial court denied summary judgment to Utilimap. The trial court also concluded that Utilimap was barred from raising the empty-chair defense at trial, because no evidence existed that Duke Energy had been negligent. With Duke Energy dismissed from the case and Utilimap prohibited from arguing an empty-chair defense, the case proceeded to a lengthy jury trial. After the trial, the jury determined that Jester was not negligent and determined that Utilimap was 100 percent negligent. The jury ultimately returned a verdict for Jester for nearly $28 million, including $24 million in noneconomic damages. After the disposition of post-trial motions, including Utilimap's motion for a new trial, the trial court entered judgment on the jury's verdict. Utilimap appealed.


In a wrongful death action in a state that allows for joint and several tort liability as well as apportionment of fault among tortfeasors, did the trial court err in prohibiting a pole inspection company from arguing the "empty-chair" defense to present evidence of a utility company's fault in an employee's death?




First, the Court of Appeals held that the trial court did not err in denying the Utilimap’s summary judgment because Jester could not assume the risk of pole collapse under the doctrine of primary assumption of the risk. According to the Court, because he was killed while working, not participating in a recreational or sporting activity, it was doubtful that the affirmative defense of primary assumption of the risk applied. The Court also considered Utilimap's arguments regarding the empty-chair defense, as codified in ORC Ann. 2307.23, and an employer's immunity. Ohio law provides for joint and several tort liability as well as apportionment of fault among tortfeasors. The Court reversed and remanded after considering evidence of Duke Energy's possible fault. From this evidence, reasonable minds could differ as to whether Duke Energy's actions or inactions proximately caused the employee's injuries. Therefore, the trial court erred in granting summary judgment to the plaintiff with respect to Utilimap's empty-chair defense; the jury should have been presented evidence of proximate cause of the injury and instructed to apportion fault.

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