IN THE SUPREME COURT OF OHIOFIRST ENERGY CORP et alDefendantsAppellan - PDF document

1 IN THE SUPREME COURT OF OHIOFIRST ENERGY
IN THE SUPREME COURT OF OHIOFIRST ENERGY CORP., et. al.Defendants-Appellants) Supreme Court of Ohio Case No. 2010-0857))))Appeal from the Trumbull CountyCourt of Appeals Case No. 2009 T 00080MERIT BRIEF OF APPELLEES, LISA HUFF, ET. AL.David Betras (30575)Betras, Kopp & Harshman, LLCPO Box 125COUNSEL FOR APPELLEES, LISA G. HUFF, ET. AL.John T. Dellick (0016271)PO Box 6077Brian D. Sullivan(0063536)Reminger & RemingerSuite 1400101 Prospect Avenue, W.COUNSEL FOR APPELLANTCLERKCF C^1l1RTSUP

2 REMEC(lUFi" ua J^^C TABLE OF CONTENTSTAB
REMEC(lUFi" ua J^^C TABLE OF CONTENTSTABLE OF AUTHORITIES .............. ................... ................. ................ ................ .................... .... 2ARGUMENT IN OPPOSITION TO APPELLANTS' PROPOSITIONS OF LAW ...................... 6tree reinoval betweena utility companyand tree reinovalcompanyincludes specificationsthatpriority trees as definedby the utility company must beremoved after(1) the tree companyidentifies a tree as beingwithinthe classification; (2) the

3 utility companygoesto the worksite and r
utility companygoesto the worksite and reviews all work includingbut notlimited topriority classifications; and (3) the utility companygives the order to remove the tree to thetree company--boththe utility company and thetree removalcompany are nolonger passivebut reallyplay an active role in determining whether or not........Ii. A utility company and tree removal company's construction of a contract that serves tomaintaining a hazardous condition to the day that the tort is committed

4 or contract is breached.................
or contract is breached............................................. ................................................... .. 16I TABLE OF AUTHORITIESCasesBrady-Fray v. Toledo Edison Co.,2003 Ohio 3422 ..................................................................... 12Fed. Ins. Co. v. Executive Coach Luxury Travel, Inc.2010 Ohio 6300, 2010WL 5392904,(Ohio,2010)............................................................................................................:...............

5 ..... 7Hetrick v. Marion-Reserve Power C
..... 7Hetrick v. Marion-Reserve Power Co.(1943),141 Ohio St. 347, 48 N.E.2d 103 ........................ 13Hill v. Sonitrol of Southwestern Ohio, Inc.(1988), 36 Ohio St.3d 36 ....:..................................... 10Kelly v. Med.Life Ins. Co.(1987), 31 Ohio St.3d 130 ................................................................... 7Noifolk & WesternCo. v. U.S.(1980), 641 F.2d 1201, 1980 U.S. App. Lexis 12984 ................. 10Parke v. Ohio Edison, Inc.,2005 WL 3096914(Ohio Ap

6 p. 11 Dist.), 2005-Ohio-6153 ...........
p. 11 Dist.), 2005-Ohio-6153 ............. 12WestfieldIns. Co. v. Galatis(2003), 100 Ohio St.3d 216 .............................................................. 72 STATEMENT OF FACTSmay be applicable, according to the National Electric Safety Codeand acceptedin a good and workmanlike manner, in compliance withsite to look at the identified priority tree and make the decision. (T.d. 57, Carrier Deposition p.3 On June 14, 2004, 41 year old Appellee Lisa Huff, a wife and mother of two m

7 inor4 hazard with multiple targets. (T.d
inor4 hazard with multiple targets. (T.d. 19, T.d. 73, Report, Dr. Kim C. Steiner, June 27, 2007, pp. 7-8). Due to the weakened condition of the tree and the predominate wind angles, the tree posed aEnergy/Ohio Edison. (T.d. 19, Deposition of Dr. Kim C. Steiner). Despite the presence of a5 Expert Company filed Motions for Summary Judgment. On July 15, 2009, the trial court27, 2010, this Court granted applications for reconsideration that were filed by Asplundh andall personsand propert

8 y from injury." (Emphasis6 added) (See C
y from injury." (Emphasis6 added) (See Court of Appeals Record No. 15 Appellate Decision pg. 18) The Appellate Courtpersons, regardless of when the work was done, are adequately safeguarded from injury. Underthis construction, Lisa would be an intended beneficiary entitled to a duty of care..." (See CourtWestfield Ins. Co. v. Galatis(2003), 100 Ohio St.3d 216, 219,Kelly v. Med. Life Ins. Co.(1987), 31 Ohio St.3d 130, 509subthe Appellate Court applied the Appellants' intent. The Appella

9 te Court determined thatcontracting part
te Court determined thatcontracting parties. To do so the Court would have to resort to speculation outside the record,Fed. Ins. Co. v. Executive Coach Luxury Travel, Inc.2010 Ohio 6300, 2010 WLFed.this Court determined that the arguinent of the insurance company was disingenuous7 when it attempted to argue that there was no intention for insurance coverage for someone theId.This Court determined, theId.In the casesub judice,the contractall personsand property from injury." (Emphasis a

10 dded) In this case, the intent of therep
dded) In this case, the intent of therepresent "accepted Forestry Practice" (See Supplement to the Merit Brief of Appellant8 (2) the utility company goes to the work site and reviews all workdetermining whether or not priority trees in the inspection corridor6.)The evidence presented in the summary judgment motions included the deposition ofa weekly vegetation management time sheet from May 3, 2001, showing that Asplundh removedtwo trees at 6717 King Graves Road. (Id., p. 20, lines 16-

11 21). That sheet was signed by a generalt
21). That sheet was signed by a generaltrim work around the utility lines at 6717 King Graves Road. (Id., pp. 34-37).9 within the State of Ohio, who confirmed that field specialists employed by Ohio Edison always6717King Graves Road in May of 2001. (T.d. 92, Deposition of Douglas Shaffer, p. 13, linesHill v. Sonitrol of Southwestern Ohio, Inc.(1988), 36 Ohio St.3d 36; 521 N.E.2dNorfolk & Western Co. v. U.S.(1980), 641 F.2d 1201, 1980 U.S. App. Lexis 12984,Hill,36 Ohio St.3d at 37; 521

12 N.E.2d at 782,an employee sued the manuf
N.E.2d at 782,an employee sued the manufacturer and monitoring companies of a work site security system forNorfolk & Western, 641F.2d at 1202-1203, the plaintiff dock owner sued theHillandNorfolk & Westerncases are clearly distinguishable from the casesub judicein which Ohio Edison and Asplundh both had a clearly defined and necessary protocol in the10 vegetation management and line clearance contract at issue. Despite the presence of a self-Are there any other causes that your aware o

13 f that may have causedadded) (See T.d. 1
f that may have causedadded) (See T.d. 19, Deposition, Dr.11 Appeals decision, narrowly define Appellants' obligations under the contract and preclude Lisacompany and tree removal company's construction of aits' dutyto power lines not people andThis Proposition of Law addresses Ohio Edison's Propositions of Law 3 and 4; andParke v. Ohio Edison, Inc.,2005 WL3096914 (Ohio App. 11 Dist.), 2005-Ohio-6153. InParke,the Court of Appeals found thatParke,co-administrators of decedent's estate f

14 iled an action against Ohio Edison forId
iled an action against Ohio Edison forId.at *3. The Court ofId.at *3. However the reviewing court distinguished theParkecase from another case in which the utility company misjudged the hazard posed byBrady-Fray v. Toledo Edison Co.,2003 Ohio 3422, at ¶4-5, (Ohio Ct. App., Lucas12 As in theBrady-Fraycase rather than theParkecase, Appellants misjudged at best, orHetrick v. Marion-Reserve Power Co.(1943),141 Ohio St. 347, 48 N.E.2d 103. InHetrick,the decedent was doing public road work a

15 nd accidentally drove his grader into a
nd accidentally drove his grader into a utilitypole causing the pole to break off and fall onto his machineiy. Id at 360; 48 N.E.2d 109. He thenatteinpted to remove the uninsulated wire by using a hammer to break a glass insulator bringingHetrick,stands for the proposition that . . . "negligencenot an unforeseen calamity because they were caused by a priority tree and the removal thereof13 QOkay. In performing a utility vegetation management inspection,do you take into consideration th

16 e tree falling on anything asidefrom the
e tree falling on anything asidefrom the utility lines?QOkay. Meaning do you take into consideration any other objectsinspectinga tree from a utility vegetationmanagement perspective,do you look at any otherdangers asidefrom the utility line?that duty. I'm sure other people are hired to protect thechildren on the playground. (Deposition of Robert Cool,Apri19, 2008, page 21, lines 13-25; page 22, lines 1-10).14 These interpretations of the law by Appellants are a continuation of their

17 dangerousperception of duty and public s
dangerousperception of duty and public safety. Moreover, the issues of foreseeability, causation andcontract interpretation raised by Appellants are matters of factual dispute and are not for aliability is not absolute as a matter of law. Further, the Court of Appeals did not find that the15 CONCLUSIONRESPECTFULLY SUBMITTED,BETRAS, MARUCA, KOPPDAVID BETRASATTORNEYFOR PLAINTIFF-APPELLEESOhio Supreme Court No. 0069160Canfield, OH 44406CERTIFICATE OF SERVICEDAVID BETRASOhioSupremeCourt No