# Petition — Breitner v. Harris

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1980
- **Citation:** 449 U.S. 823

## Text

‘Gupreme Court, U.
FILE

APR 25 1980

— —WICHAEE-RODAK, JR.,

IN THE

Supreme Court of the Anited States

N- §%9-1685

October Term, 1980

ROBERT BREITNER and LUELLA BREITNER,
Petitioners,

atin

RICHARD HARRIS, d/b/a RICHARD HARRIs BUILDERS,
Respondent.

PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

HarrY M. PHILO

RICHARD L. STEINBERG
Philo, Atkinson, Darling,
Steinberg, Harper & Edwards
Fourth Floor, Standard Federal

Savings Building
409 Griswold at Jefferson Avenue
Detroit, Michigan 48226
(313) 496-1330
Attorneys for Petitioners

TABLE OF CONTENTS

PAGE
Pe OAD gc nt tea ec uate eee eee an 2
I A vata « os As 4 5a o's 0 eee RA Se 2
OG | rr ere re rer rie
CONSTITUTIONAL PROVISIONS INVOLVED .............. 3
STATUTORY PROVISIONS INVOLVED ............eeeeees 4
Sere GP FG GO kg i eiccae sed jwea oe cveun a aoa
REASONS FOR GRANTING THE WRIT ...........eeeeees 6
RNS on ccc awk as eek eee Ve dahe Kobe eee 18
TABLE OF AUTHORITIES

Cases:
Baltimore & Carolina Line, Inc. v. Redman,

ee es ee OE I a i hon as a oo R ROK bO4 SR RRR 7
Beacon Theaters v. Westover,

Sa te es SR ROE Newaka cians Seaver ara 6
Bevan, Admx. v. Century Realty Co..

a Cas Fie. Fa, We Cee viv nd kes ask eedka es ben cnws 11
Blakely, Admx. v. Charles H. Shook, Inc., (1),

CA Me. S557 (robounty 7, UFR)... <icss once access 11

_ Blakely Admx. v. Charles H. Shook, Inc., (II)

C.A. Mo. G76 CAmmimt 21, TSG) oon ance ceccadens 11
Blair v. Goff-Kirby Co.,

ee A ee BOE Ce kacac aes hein ca eNee 11, 14

Briere v. Lathrop Co.,
po Bs OR ee rere re co

(ii)
Cases: PAGE

Cuppy v. Lathrop Co.,
C.A. No. L-75-170 (Decision and Journal

re 8,9, 10, 11,
13, 14, 15

Dick v. New York Lif Inc. Co.,

ie in iawns sanale/dekewnias a 7
Dimick v. Scheidt,

I ODD oc cnc ccccceasececdsssccnes 6
Erie R. Co. v. Tompkins,

cs seek scscescceces 3, 8, 9, 13, 05
Fidelity Union Trust Co. v. Field,

ch ebenc sd esesccenctens 9
Funk v. General Motors Corp.,

392 Mich. 92, 220 N.W.2d 643 (1974) ............... 16
Gallick v. Baltimore & Ohio R. Co.,

eS Te) 7
Gibson v. Phillips Petroleum Co.,

352 U.S. 874 (1956) (per curiam) ......... 6... 7
Giovinale v. Republic Steel Corp.,

Ee ES ee). 14
Gustin v. Sun Life Assur. Co.,

154 F.2d 961 (6th Cir. 1946) (on rehearing) ......... 11
Hogan v. Hogan,

29 Ohio App.2d 69, 77 (1972) .......... DV thkeanee ews 9

Int’! Terminal Operating Co. v. N.V. Neder.
Amerik. Stoomv. Maats.,

393 U.S. 74 (1968) (per curiam) ...... 0... 7
King v. United Commercial Travelers,
eas sna kc cnccsces 9, 10, 13, 15

Lazar v. Cleveland Electric Illiminating Co.,
E.R 11, 12

(iii)

Cases: PAGE

Montana v. Kennedy,

PE ee Se EEE sw eke he iad oe coma ete 16
National Surety Corp v. Blackburn,

62 Ohio L. Abs. 158, 106 N.E. 2d 781

CA TES ke dv ee eRe re ee EN a eeea eee es 11
Nutter v. C’Nati Gas & Elect. Co.,

C.A. No. 74-551 (1st Dist. App. December 13,

1974) (per curiam) motion to certify denied,

DRA FO Pe I Ge eis k caw dee ne eeeee. 11
Peltier v. Koscot Interplanetary,

No. 72-AP-220 (November 14, 1972) ............... 12
Pokora v. Wabash Rwy. Co.,

Oe Sie Py TE vc xnd ceee kde cade eaene ee 16
Shannon v. Howard S. Wright Constr. Co.,

Se: Oe ee CL, PE TTE iin g ocean Gna es dheesgeres 16
Six Cos. of California v. Joint Highway District,

FES ices. SE EC RG ice ns ohooh ae keene ets 9
State v. George,

Se SO Fe BT COTE 5 50 ho 5s he keh a ether eess 12
Tennant v. Peoria & P.U.R. Co.,

poi OR ee ee rer reer ra eee 7
United States v. Healy,

FOe UB, Fos, Pe ee Seda beueedes eis ye deus 2
West v. A. T. & T. Co.,

SEE Cha Bae ee. Sib d osc ee'enubaurs beeen 9
Wilkerson v. McCarthy,

FOO A SRG Te Ae ED ieee a hase cexten nares 6,7
Witherspoon v. Illinois,

See ULB. SOR See CRE hone ica cee shave aaean 16
Younger v. Harris,

OP) BIS. FF, A BET aks shes pan Cena aieeneas 15

(iv)
Other Authorities: PAGE

Ohio Rev. Code Ann., (effective June 20, 1980)
pCR 2 coats. ee dre 6 gr re eee rg a eas 14

Se OE ci veh s veaeeew ane bes bac 9

eB & fo ee. RS renter a car a grr ern 10
Judicial Code of the United States,

ee Pe RE RO eos a on fre Mek dies Ree bc daows 2

ee PE EN bs KS RaW elnas pee ueN a dew ea Oe 4

eo PO ai ge St atpre yore re er ah wee Pe 2
U.S. Constintion, Amendment Vil ....... 6 66.05..05. 3
Se SU oD. cra tc kkaa ed o0 eins con eens eke 9
R. Leflar, Appellate Judicial Opinions, (1974) ......... 12

Seligson & Warnlof, The Use of Unreported
Cases In California, 24 Hasting L. J. (1972)......... 12

RIM kt el A A Tl ASS

IN THE

Supreme Court of the Guited States

OCTOBER TERM, 1980

No.

ROBERT BREITNER and LUELLA BREITNER,
Petitioners,

-p-

RICHARD HARRIS, d/b/a RICHARD Harris BUILDERS,
Respondent.

PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

To the Chief Justice and the Associate Justices of the
Supreme Court of the United States:

The Petitioners, Robert Breitner and Luella Breitner, re-
spectfully pray that a writ of certiorari issue to review the
opinion and judgment of the United States Court of Appeals
for the Sixth Circuit entered on December 10, 1979.

2

OPINIONS BELOW

The opinion of the United States District Court for the
Northern District of Ohio entering judgment non obstante
veredicto, is not officially reported, but is reprinted at App.
(a -a ).! The opinion of the United States Court of Appeals
for the Sixth Circuit is not officially reported but is reprinted
at App. (a -a ).

JURISDICTION

The jurisdiction of this Court is invoked pursuant to 28
U.S.C. §1254(1). The opinion and judgment of the United
States Court of Appeals for the Sixth Circuit was entered on
December 10, 1979. Petitioners’ timely Petition for Rehearing
and Suggestion for Rehearing En Banc was denied on January
28, 1980. This Petition for writ of certiorari was filed within
ninety (90) days of that date; 28 USC §2101(c); United States
v. Healy, 376 U.S. 75, 77-80 (1964).

QUESTIONS PRESENTED

1. Have we not reached the state of development in the
evolution of our ordered scheme of liberties that it is:

A violation of the dictates of the Seventh Amendment
when the District Court enters judgment non obstante
veredicto rendering nugatory the verdict of a !2 person
jury in a bifurcated trial which decided, under proper
instructions and in the total absence of any evidence of
damages or of the nature and extent of the injury which
was sustained, and in the total absence of any argument
which could be claimed to appeal to passion, prejudice or
sympathy, that:

1. The Appendix to this petition shall at all times herein be
referred as ‘‘App.”’.

3

a. the conduct of the Petitioner was reasonable in the
place, time and circumstances and under the condi-
tions then existing; and,

b. the Respondent had failed to discharge its burden of
proof in establishing its affirmative defenses of con-
tributory negligence and assumption of the risk,

thereby insulating a proven tortfeasor from liability?

2. Does not the Seventh Amendment forbid a U.S. Circuit
Court of Appeals to go afield and reexamine the factual
record, and to reevaluate the reasonableness of the con-
duct of the parties, in order to defeat the verdict of the
jury in a diversity case?

3. Is it not error requiring reversal in the exercise of the
supervisory jurisdiction of this Court when a District
Court regards itself bound under Erie R. Co. v.
Tompkins? by an unreported ‘decision and journal en-
try’’ of an intermediate state appellate court which is
wholly lacking in precedential value in the State in which
it sits and which is demonstrably contrary to the law as
articulated by that State’s court of last resort?

CONSTITUTIONAL PROVISIONS INVOLVED

The following provision of the Constitution of the United
States applies hereto:

In Suits at common law, where the value in controversy
shall exceed twenty dollars, the right of the trial by jury
shall be preserved, and no fact tried by a jury, shall be
otherwise re-examined in any Court of the United States,
than according to the rules of the common law.

U.S. Constitution, Amendment VII.

2. 304 U.S. 64 (1938).

4

STATUTORY PROVISIONS INVOLVED

The following provision of the Judicial Code of the United
States applies hereto:

The laws of the several states, except where the Con-
stitution or treaties of the United States or Acts of Con-
gress otherwise require or provide, shall be regarded as
rules of decision in civil actions in the courts of the
United States, in cases where they apply.

28 U.S.C. § 1652 (1956).

STATEMENT OF THE CASE

In early 1972, Respondent Richard Harris, d/b/a Richard
Harris Builders, undertook the construction of a multi-million
dollar motel-office-shopping complex in Toledo, Ohio, which
came to be called the Sheraton-Westgate. Respondent, (who
had only engaged in residential home construction pre-
viously), acted as owner and as developer and general con-
tractor for the erection of the structure and provided job
superintendence with his own personnel. Harris Builders con-
tracted with some 30 different firms to perform various as-
pects of the work and also contracted with the Seaway Scaf-
folding Company to provide tubular steel frame scaffolding
and scaffold planks.

The job superintendent for Harris Builders, George Henry,
inspected the scaffolding between uses by the various subcon-
tractors, conducted daily safety inspections of the entire pro-
ject, guided governmental inspectors on their rounds during
periodic inspections, and had the authority to, and in fact did,
order correction of scaffolding deficiencies. He instructed
project personnel in what he considered to be safe scaffold
erection on at least two occasions. There was also evidence,
however, that the scaffolding was generally set up by labor-
ers, apprentices, ‘‘usually the cheapest help there that was
available.’’ In consequence, it was frequently erected without

5

double-planking, cleated planking, guardrails, toeboards or
other reasonably necessary safety precautions.

On October 3, 1972, Petitioner Robert Breitner, an em-
ployee of the carpentry subcontractor on this project was en-
gaged in the installation of window frames. He was working
from the inside, and an apprentice, John Nearing, was work-
ing from the scaffolding. When Nearing experienced difficulty
in making a cut on one of the window frames, he asked
Petitioner for assistance. Petitioner stepped through one of
the window wells onto the scaffolding and was engaged in
making the cut when the scaffold plank broke. Nearing was
able to grab the frame; petitioner fell nearly two stories, sus-
taining multiple spinal column and rib fractures and at the
present time has permanent, irreversible and disabling in-
juries.

This diversity action was commenced in the United States
District Court for the Northern District of Ohio on October
17, 1973, to enforce liability against Respondent and the Sea-
way Scaffolding Company. The case was tried twice. The first
trial began on April 26, 1976, and extended to May 6, 1976. At
the conclusion of plaintiffs’ case-in-chief, the District Court
granted a motion for directed verdict in favor of the Seaway
Scaffolding Company and against the Petitioners. The Court
of Appeals upheld this ruling and Petitioners do not seek re-
view of this issue before this Court. At the conclusion of all of
the proofs, the jury was charged, and began its deliberations,
but was unable to reach a verdict. The District Court declared
a mistrial and discharged the jury.

The second trial—this time, a bifurcated issue trial separat-
ing liability and damages—was commenced on June 14, 1976.
The liability phase of the second trial extended until June 16,
at which time the jury was charged and rendered a liability
verdict for the Petitioners. The District Court then permitted
the damages phase of the trial to begin and evidence of
Petitioners’ damages was presented on June 16. On June 17,
the jury returned a verdict of $236,000.00.

6

On February 15, 1977, the District Court entered an unre-
ported memorandum opinion and order setting aside the ver-
dict of the jury in the total absence of any claim, or any evi-
dence, of passion, prejudice, corruption, improper influence
of the jury, or improper argument. The principal focus of the
District Court’s opinion was that it was bound by an unre-
ported ‘‘decision and journal entry”’ of the Ohio intermediate
appellate court in Toledo in a case which the District Court
said was ‘‘factually on all fours with the present case .. .”’
(App. a) and which had held that an owner or general contrac-
tor owes no duty to safeguard the employee of a so-called
independent contractor. The District Court also said
Petitioner was guilty of contributory negligence as a matter of
law.

The Court of Appeals for the Sixth Circuit held in an unre-
ported opinion that the District Court was not bound by the
State court ‘‘decision and journal entry,’’ that the State court
case was not factually foursquare with the case at bar, but that
Petitioner was guilty of contributory ngligence as a matter of
law.

This Petition follows.

REASONS FOR GRANTING THE WRIT

1. The Decision of the Court of Appeals contravenes the
fundamenta! guarantees of the Seventh Amendment. This
Court has granted certiorari many times to vindicate Seventh
Amendment rights. **‘ Maintenance of the jury as a fact finding
body is of such importance and occupies so firm a place in our
history and jurisprudence that any seeming curtailment of the
right to a jury trial should be scrutinized with the utmost
care.’’ Dimick v. Scheidt, 293 U.S. 474, 486 (1935), quoted
with approval in Beacon Theaters v. Westover, 359 U.S. 500,
501 (1959). In Wilkerson v. McCarthy, 336 U.S. 53, 70, 71
(1949), this Court said: ‘The criterion governing the exercise
of our discretion in granting or denying certiorari is not who
loses below but whether the jury function is passing on dis-

7

puted questions of fact and in drawing inferences from proven
facts has been respected.’’ This Court has been willing to
enforce the strictures of the Seventh Amendment in diversity
cases as with statutory actions arising by Act of Congress.
Gibson v. Phillips Petroleum Co., 352 U.S. 874 (1956) (per
curiam); Dick v. New York Life Ins. Co., 359 U.S. 437 (1959).

In the case at bar, the function of the jury was not given the
respect which Wilkerson v. McCarthy, supra, requires, and
both the spirit and letter of the Reexamination Clause were
violated. In Baltimore & Carolina Line, Inc. v. Redman, 295
U.S. 654, 657 (1935), this Court said with respect to the right
of trial by jury:

The amendment not only preserves that right but dis-
closes a studied purpose to protect it from indirect im-
pairment through possible enlargements of the power of
re-examination existing under the common law, and to
that end declares that ‘‘no fact tried by a jury shall be
otherwise re-examined in any court of the United States
than according to the rules of the common law.”

The aim of the Amendment, as this Court has held, is to
preserve the substance of the common-law right of trial
by jury, as distinguished from mere matters of form or
procedure, and particularly to retain the common-law dis-
tinction between the province of the court and that of the
jury, whereby, in the absence of express or implied con-
sent to the contrary, issues of law are to be resolved by
the court and issues of fact are to be determined by the
jury under appropriate instructions by the court.

[Footnote omitted].

Furthermore, in /nt’l. Terminal Operating Co. v. N.V.
Nederl. Amerik. Stoomv. Maats., 393 U.S. 74 (1968) (per
curiam), this Court specifically held that the question of the
reasonableness of one’s conduct is one which the Seventh
Amendment requires be decided by a jury.

In Tennant v. Peoria & P.U.R. Co., 321 U.S. 29, 35 (1944),
and in Gallick v. Baltimore & Ohio R. Co., 372 U.S. 108,
114-115 (1963). This Court reiterateJ:

It is not the function of a court to search the record for
conflicting circumstantial evidence in order to take the

case away from the jury on a therory that the proof gives
equal support to inconsistent and uncertain inferences.
The focal point of judicial review is the reasonableness of
the particular inference or conclusion drawn by the jury.
It is the jury, not the court, which is the fact-finding
body. It weighs the contradictory evidence and infer-
ences, judges the credibi!'tv of witnesses, receives expert
instructions, and draws the uitimate conclusion as to the
facts. The very essence of its function is to select from
among conflicting inferences and conclusions that which
it considers most reasonable. Washington & Georgetown
R. Co. v. McDade, 135 U.S. 554, 571, 752; Tiller v. At-
lantic Coast Line R. Co., supra, 68; Bailey v. Central
Vermont Ry., 319 U.S. 350, 353, 354. That conclusion
whether it relates to negligence, causation or any other
factual matter, cannot be ignored. Courts are not free to
reweigh the evidence and set aside the jury verdict merely
because the jury could have drawn different inferences or
conclusions or because judges feel that other results are
more reasonable.

[Emphasis added].

If stare decisis has meaning, if these precidents retain any
vitality, they should be used to enforce the principle in this
case.

2. The utilization of an unreported ‘‘decision and journal
entry’’ of an intermediate State appellate court to overturn
the verdict of a jury threatens to undermine the foundation of
the Erie doctrine. The District Court, in its opinion, found
that it was bound by the decision of the Sixth District Court of
Appeals for Lucas County in a State case, Cuppy v. Lathrop
Co., C.A. No. L-75-170 (Decision and Journal Entry, April
16, 1976). The U.S. Court of Appeals for the Sixth Circuit
held: ‘*We agree with the plaintiffs that Cuppy was not binding
upon the district court here. However, we do not find that it
was error for the Court to consider Cuppy.” (App a - a). Ap-
pellate approval of Cuppy poses extremely troublesome Erie
questions.

While it is true that a Federal Court in a diversity case is

9

obligated under the Rules of Decision Act, 28 USC §1652 and
the Erie Doctrine, Erie R. Co. v. Tompkins, 304 U.S. 64
(1938), to apply substantive rules of state law as construed by
the highest court of that state and that two years after Erie,
this Court held that the obligation extended to decisions of
intermediate appellate courts as well, West v. A. T. & T. Co.,
311 U.S. 223 (1940); and Six Cos. of California v. Joint High-
way District, 311 U.S. 186 (1940); Fidelity Union Trust Co. v.
Field, 311 U.S. 169 (1940), this obligation is not without ex-
ception.

Thus, in King v. United Commercial Travelers, 333 U.S.
153 (1948), this Court held that a reviewing Fourth Circuit
was not obligated to follow the only South Carolina opinion
on point because that opinion had little, if any, precedential
value. Chief Justice Vinson emphasized two factors:

a. the decision was not published or digested and thus
was generally inaccessible to other members of the bench
and bar;

b. the decision did not require conformity by other
courts in the state.

333 U.S. at 160-62

Measured against the King benchmark, the Cuppy decision is
not proper judicial precedent which may bind a District Court
in a diversity case. Plaintiffs respectfully point out that the
following features of the Cuppy decision:

Ohio’s eighty-eight counties are organized into eleven judi-
cial districts. Ohio Const. Art. 4 §3; Ohio Rev. Code Ann.
§2501.01 (Page’s 1968). The opinions rendered by a district
court of appeals are not binding on its sister courts of appeals.
Hogan v. Hogan, 29 Ohio App. 2d 69, 77 (1972).

The practice in the Sixth District Court of Appeals is to
issue: (a) official opinions; (b) unofficial opinions; (c) unre-
ported opinions; (d) decisions and journal entries; (3) pro-
cedural orders. Of these, only the opinions are indexed in any

10

way other than by the surnames of the parties. Unreported
opinions are available at the Toledo Law Association library
and the University of Toledo Law library and are collected by
the larger law firms in Toledo. Official opinions and unofficial
opinions are freely available, digested and indexed. Decisions
and journal entries and procedural orders are largely unavail-
able to the bench and bar of the State of Ohio at large includ-
ing practitioners in metropolitan Toledo.

In this connection, Chief Justice Vinson speaking for a
unanimous court in King ernphasized the inherent danger in
requiring a Federal court to follow unreported ‘‘precedent”’ in
a diversity case, 333 U.S. at 161-162:

Secondly, the difficulty of locating Common Pleas deci-
sions is a matter of great practical significance. Litigants
could find all the decisions on any given subject only by
laboriously searching the judgment rolls in all of South
Carolina’s forty-six counties. To hold that federal courts
must abide by Common Pleas decisions might well put a
premium on the financial ability required for exhaustive
screening of the judgment rolls or for the maintenance of
private records. In cases where the parties could not af-
ford such practices, the result would often be to make
their rights dependent on chance; for every decision cited
by counsel there might be a dozen adverse decisions out-
standing but undiscovered. [footnote omitted]

Although the King Court dealt with an unreported opinion of
a court of general trial jurisdiction in South Carolina, the logic
of the King Court’s analysis and the principles which the King
Court articulated compel the conclusion that the criteria of
availability and conformity should apply to the Cuppy deci-
sion and that the same result should obtain.

Moreover, the Ohio General Assembly has specifically
enacted a statute depriving unreported cases of precedential
effect. Thus, Ohio Rev. Code Ann. §2503.20 (Page’s, 1953)
reads in pertinent part as follows:

After August 15, 1919, all such cases must be reported in

accordance with this section before they shall be recog-
nized by and receive the official sanction of any court.

Although the Sixth Circuit held that the Ohio statute ‘s direc-
tory and not mandatory in Gustin v. Sun Life Assur. Co., 154
F.2d 961 (6th Cir. 1946) (on rehearing), Chio appellate courts
have held that unreported opinions are entitled to no weight.
Bevan, Admx. v. Century Realty Co., 64 Ohio App. 58, 66
(1940). Cf. National Surety Corp. v. Blackburn, 62 Ohio L.
Abs. 158, 106 N.E.2d 781 (App. 1951).

The correct view is undoubtedly that unreported inter-
mediate appellate court opinions are entitled to some weight,
but not as much as accorded to official reports, since trial and
appellate judges should not be required to till already planted
soil. But such opinions are to be distinguished from the ‘‘deci-
sion and journal entry’’ signed by the Court in Cuppy. If
anything, the unreported opinions which contain at least some
legal reasuning and analysis should be preferred over the deci-
sion and journal entry which normally only announces the
results reached in a form similar to a minute order. Indeed,
the fact that the Lucas County Court of Appeals chose that
form rather than a written opinion suggests that the Cuppy
court itself did not view the matter as precedent setting.

The distinction becomes important because that decision of
the Sixth District Court of Appeals in Cuppy stands in stark
and open conflict with opinions issued by the First District
Court of Appeals in Nutter v. C’ Nati Gas & Elect. Co., C.A.
No. 74-551 (Ist Dist. App. December 13, 1974) (per curiam),
motion to certify denied, S. Ct. No. 77-99 (1977) and by the
Second District Court of Appeals in Blakely, Admx. v.
Charles H. Shook, Inc. (1), C.A. No. 4337 (February 7, 1974)
and in Blakely, Admx. v. Charles H. Shook, Inc. (11), C.A.
No. 4960 (August 21, 1976).

More importantly, the decision of the Sixth District Court
of Appeals in Cuppy, insofar as it is read to uphold a finding of
contributory negligence as a matter of law violates the rule of
law established by the Ohio Supreme Court in Lazar v. Cleve-
land Electric Illuminating Co., 43 Ohio St.2d 131 (1975), and
Blair v. Goff-Kirby Co., 49 Ohio St.2d 5 (1976). Cf. Briere v.

12

Lathrop Co., 22 Ohio St.2d 166 (1970), that contributory neg-
ligence is an issue ‘uniquely tailored to the jury function.”’
Lazar v. Cleveland Electric Illuminating Co., supra, 43 Ohio
St.2d at 144.

Sound judicial policy requires that unreported decisions be
given neither binding nor persuasive effect, and that any cita-
tion to such decisions should be precluded. R. Leflar, Appel-
late Judicial Opinions (1974) page 313, citing, Seligson &
Warnlof, The Use of Unreported Cases in California, 24 Hast-
ing L.J. 37 (1972). Dean Leflar lists the reasons for such a rule
as follows, R. Leflar, supra at p. 319:

The reasons for requiring a ruie of non-citation are many:

1. Itis unfair to allow counsel, or others having special
knowledge of an unpublished opinion, to use it if
favorable and withhold it if unfavorable.

2. Cost will be reduced by eliminating the need to ob-
tain and examine the mass of opinions that are not
designated for publication.

3. The absence of a non-citation rule would encourage
the inclusion in opinions not designated for publica-
tion of facts and details of reasoning, thus frustrating
the purposes underlying non-publication.

4. Cost and delay of cases appealed only because they
are apparently at odds with unpublished opinions can
be reduced.

5. Great difficulty, if not impossibility, would be in-
volved in determining whether an unpublished opin-
ion has been overruled.

In addition, State v. George, 50 Ohio App.2d 297 (1975)
presents an example of just the sort of difficulties peculiar to
unreported cases. In State v. George, supra, the Franklin
County Court of Appeals found that the trial court applied
correctly the law set forth in the unreported Peltier v. Koscot
Interplanetary, No. 72-AP-220 (November 14, 1972), but that
**due process’ required reversal of the defendants’ conviction
because although the Koscot case was binding, the defendant

13

was not given ‘‘fair notice’’ of its existence, 50 Ohio App.2d
at 312-313. It is respectfully submitted that judicial decision-
making should not hinge on such nebulousness as what is or is
not ‘‘fair notice’’ of an unreported decision.

In consequence, such unreported cases which are clearly
violative of the precepts articulated by Chief Justice Vinson in
King v. United Commercial Travelers, 333 U.S. 153 (1948)
should not, in any sense, form the foundation for the applica-
tion of a state’s substantive law by a United States District
Court for Erie purposes. Even tacit approval of such a prac-
tice by this Court would lead to untold havoc in both Federal
and State practice.

These considerations militate heavily against judicial accep-
tance of Cuppy by a Federal Court. Adherence to Cuppy, in
effect, widens the division among district courts of appeals in
Ohio and unnecessarily enhances an unreported decision
otherwise unlikely ever to be followed by another Ohio court.
Moreover, the adoption of Cuppy as an authoritative state-
ment of Ohio law elevates county of residence to a position of
importance in the determination of forum choice previously
unknown in Ohio. In short, adherence to Cuppy does nothing
to promote the uniformity of substantive law in Ohio.

On the contrary, utilization of Cuppy for Erie purposes pro-
duces exactly the result reached here: a Federal appellate
court applying substantive state law has adopted a position in
conflict with the Supreme Court of that State and a position
which violates the public policy of that State as articulated by
the Supreme Court of that State:

To begin with, the goals of the tort system are probably

better served by a jury determination of the facts than by
judge-made determinations of law.

* * *

As Dean Prosser says, in doubtful cases questions should
be sent to the jury ‘‘because the public insists that its
conduct be judged in part by the man in the street rather

14

than by lawyers, and the jury serves as a shock absorber
to cushion the impact of the law [footnote omitted].

Blair v Goff-Kirby Co.,

supra, 49 Ohio St.2d at 9.

In this case, as the Supreme Court of Ohio emphasized in a

similar case, Giovinale v. Republic Steel Corp., 151 Ohio St.

161, 171-172 (1949): ‘‘plaintiff . . . was not a free agent walk-

ing on a sidewalk in broad day light. He was a workman,

under orders performing a difficult job under difficult condi-

tions.”’ Plaintiff's conduct was measured by the jury with

these circumstances factually supported in the record and
under proper instructions from the District Court.

Yet, despite these clearly authoritative statements of the
substantive law of Ohio and the public policy of Ohio as
stated by the Supreme Court of Ohio, and even as the Ohio
General Assembly was adopting comparative negligence,
Ohio Rev. Code Ann. §2315.19 (effective June 20, 1980)’, the
District Court and the Court of Appeals which upheld it, was
led astray by what can only be fairly viewed as a judicial
aberration.

Finally, this Court must consider the practical impact
which would flow from even tacit approval of the District
Court’s reliance on the Cuppy decision. Immediately, large
law firms with their not insubstantial resources and research
capabilities are given a significant advantage over sole prac-
titioners and smaller firms. Unfair tactical advantages over an
opponent could be achieved by unveiling a governing decision
at a critical moment in trial, such as during argument on a
motion for directed verdict, and the unfortunate recipient
would have little or no chance to recover from such a blow to
his or her case. No matter how conscientious counsel might
be in undertaking to research any given issue in a case, there
could be no assurance that such research would ever be com-

3. Cf. Vandenbark v. Owens-Illinois Glass Co., 311 U.S. 538,
542. n. 18 (1941).

15

prehensive enough or complete enough if an opponent could
cite an unreported and otherwise unavailable ‘‘decision and
journal entry’’ which would then become binding on a District
Court. But the spectre envisioned by Chief Justice Vinson in
King poses difficulties beyond those faced by trial counsel. A
virtual octopus of uncertainty and difficulty for other District
Courts in Ohio, for the Sixth Circuit on review, and, ulti-
mately, for this Court in attempting to analyze the substantive
law of Ohio.

The net effect is to produce consequences which have a
destructive influence on the Erie doctrine, which preclude the
effective application of substantive State law in Federal
courts, and which threaten the comity that lies at the heart of
‘‘Our Federalism.’’ Younger v. Harris, 401 U.S. 37, 43-45
(1971).

The utilization of unreported case law not only gives body
to the spectre envisioned by Chief Justice Vinson but also
provides the spawning ground for exactly the kind of capri-
cious injustice which occurred in the case at bar. The proce-
dure followed here is a dangerous precedent: the Cuppy case
is unreported; the District Court’s opinion is unreported; the
opinion of the Sixth Circuit is unreported. On an important
question of law a virtual ‘‘fifth dimension’’ has been created: a
body of law surrealistically mirroring the official and reported
substantive law of Ohio but which is not a part of it and which
fails to accurately reflect it. Such judicial decision-making
emasculates the doctrine of stare decisis which is the founda-
tion of the common law and robs the law of the certainty and
morality with which it is infused. Moreover, this practice is
totally out of harmony with the thoughts and customs of a
democratic people, and the occurrence of this practice can
only exacerbate the already jaundiced eye with which the pub-
lic views the administration of justice. This Court must not
countenance such a phenomenon.

For all of these reasons and to prevent the spread of this
practice to any other State or territory, this Court should

16

grant this writ to take the appropriate corrective action neces-
sary to ensure a continuing commitment to civi/ due process.

3. This Court has granted certiorari to avert the miscarriage
of justice. In Montana v. Kennedy, 366 U.S. 308, 309 (1961),
certiorari was granted ‘‘in view of the harshness of the result
entailed.’’ In the exercise of its discretion whether to grant or
deny certiorari, this Court may properly consider not only the
impact of this case on the lives of the individuals concerned,
but also the influence of this case on the level of safety and
health protection to be afforded construction workers
throughout the State of Ohio by project owners and general
contractors. Cf. Funk v. General Motors Corp., 392 Mich. 92,
220 N.W.2d 643 (1974); Shannon v. Howard.S. Wright
Constr. Co., 592 P.2d 438 (Mont. 1979). Culpable wrongdoers
who refuse to spend the necessary monies to establish and
enforce effective and professional accident prevention pro-
grams On construction sites of the scope involved here should
not be insulated from liability, particularly in the teeth of a
contrary finding of the facts by a trial jury.

The fundamental purpose of the tort law is the prevention of
accidents and the deterrence of further injury. It is only when
the law fails in that regard that the secondary and subsidiary
function of compensating the tort victim arises. As Justice
Cardozo wrote in Pokora v. Wabash Rwy. Co., 292 U.S. 98,
104-106 (1934): ‘Standards of prudent conduct are declared at
times by courts, but they are taken over from the facts of
life.’ The duty of the jury as ‘‘the conscience of the commu-
nity’’ Witherspoen v. Illinois, 391 U.S. 510, 519 (1968), ex-
tends to civil cases as well as criminal ones. It is the role of the
jury to be the final arbiter of those standards measured by
such facts and it is not for an appellate court to apply ‘‘rules
artifically developed, and imposed from without.”’ /d.

The opinion of the Court of Appeals in the case at bar
defeats the essential purpose of the tort law, demeans the role
of the jury as the conscience of the community in the estab-

17

lishment of a standard of reasonable care for such circum-
stances, and promises impunity to tortfeasors who inflict seri-
ous injury or death and who are unwilling or unable to spend
the time and money to prevent construction accidents.* Such
a decision should be rectified because it affects the lives and
livelihoods of many construction workers and their families
and not merely that of the Petitioners.

4. Historically, the construction industry has presented an in-
herently hazardous work environment. In 1971, the year before the
incident in the case at bar occurred, 2800 construction workers were
killed and another 249,000 suffered disability injury of a work force
of only four million. National Safety Council, Accident Facts (1971
ed.),23. Year after year, of the 42 industries monitored by the Coun-
cil, the construction industry has consistently turned in the worst
accident severity record and the worst accident frequency record,
outdistanced only by deep-shaft mining, both coal and non-coal
mineral.

Courts, of course, can take notice of social science facts and have
done so on many occasions. As Judge Learned Hand pointed out
over sixty years ago in Parke-Davis & Co. v.H. K. Mulford Co., 189
F. 95, 115 (C.C.S.D.N.Y. 1911), courts have a duty to provide
themselves with the best information and expert opinion available
on technical subjects:

How long we shall continue to blunder along without the aid of
unpartisan and authoritative scientific assistance in the adminis-
tration of justice, no one knows; but all fair persons not conven-
tionalized by provincial legal habits of mind ought, I should
think, unite to effect some such advance.

See also, Muller v. Oregon 208 U.S. 412, 419 (1908); Brown v.
Board of Education of Topeka, Kansas, 347 U.S. 483, 494, n.ll
(1954).

18
CONCLUSION

For the reasons stated above, this Court should grant cer-
tiorari to review important Constitutional and Federal ques-
tions presented.

Respectfully submitted,

HARRY M. PHILO
RICHARD L. STEINBERG

PHILO, ATKINSON, DARLING,
STEINBERG, HARPER & EDWARDS
Attorneys for Plaintiffs

Fourth Floor, Standard Federal
Savings Building

409 Griswold at Jefferson

Detroit, Michigan 48226

(313) 496-1330

APPENDIX

APPENDIX A

DOCKET ENTRIES
(U.S. District Court—Northern Distict of Ohio)

I hereby certify that this instrument is a true and correct
copy of the original on file in my office.
Attest: Mark Schalchet, Clerk
U.S. District Court
Northern District of Ohio
By: /s/ M. B. Lewis

2 Docket Entries

1973

October 17. Bill of Complaint and Demand for Jury,
filed.

October 17. Civil Cover Sheet, filed.

October 17. Interrogatories to Deft. Richard Harris,
Builders, filed.

October 17. Summons issued. | Orig. with 2 copies
summons with 2 copies complaint and 2 copies of
Interrogatories to U.S. Marshal Office.

November 1. Motion by defend. R. Harris for an
extension of time to Nov. 26, 1973 to move, plead or
answer filed. Mailed 11-1-73.

November 1. Order granting motion of defend. Harris
for extension of time to Nov. 26, 1973 to move,
plead or answer filed. DJY,J. Copies 77d to Philo &
Raker.

November 16. Stip. & order for extension of time to
12-19-73 for defend. Seaway Scaffold Co. to move or
plead, filed. DJY,J. Notice waived.

November 26. Answer and Cross-claim of Deft. Richard
Harris, filed. Copies mailed.

December 3. Summons returned, executed and filed.
Richard Harris, Richard Harris Builder served
10/20/73: Theodore Markwood, Atty. for Seaway
Scaffold Co., Inc. served 11/11/73. Marshal’s fees
$7.20.

December 11. Approved Application for extension of
time for Deft. to file answers to pltfs interrogatories
to Jan. 4, 1974, filed. DJY. 77(d) copies to Raker,
Cox and Philo, and Green.

Docket Entries 3

December 19. Answer of Deft. Seaway Scaffold Co. to
complaint of Pltfs and Cross-claim of Deft. Richard
Harris and cross-claim of deft. Seaway Scaffold Co.,
against deft. Richard Harris, filed. Copies mailed.

1974

January 4. Answer of Deft. Richard Harris, Builders to
Pitfs’ interrogatories, filed.

February 15. Answers of Deft. Seaway Scaffold Co.,
Inc. to Interrogatories of Pltfs, filed.

December 5. Notice of pretrial conference on Jan. 7,
1975 at 10:30 A.M. mailed to all counsel of record.

December 30. Trial Brief of Deft. Richard Harris, etc.,
filed. Copies mailed.

1975

January 10. Order pretrial, filed. DJY 77(d) copies to all
counsel. Estimated trial time 4 days. Trial as Ist
backup case on Monday, June 23, 1975. Jury of 12
with 3/4 concurrence.

April 11. Not. trial date of 6/23/75, fld. mid.
June 10. Oral notf. re trial date. (Not. mid.)

October 22. Order pretrial, filed. DJY 77(d) copies to all
counsel. Estimated trial time 4 days. Trial date
Monday, April 26, 1976. Jury of 12 with 3/4
concurrence.

1976

March 16. Requests for admissions to deft. Richard
Harris, Builders; Requests for admissions to deft.
Seaway Scaffold Co., filed. Copies mailed.

4 Docket Entries

March 29. Deft. Harris Motion for leave to file answer
to cross-claim, filed.

March 29. Answer of deft. Richard Harris to crossclaim
of deft. Seaway Scaffold Co. LODGED.

Apnil 12. Pitfs. notice to take deposition of Robert I.
Fikkel, M.D., filed. Copies served.

April 12. Pitfs. Notice to take deposition duces tecum of
Richard Harris, filed. Copies served.

Apmil 12. Ordered that Deft. Harris may file his answer
instanter to cross-claim of deft. Seaway Scaffold
Co., Inc., filed. DJY Copies mailed.

April 12. Answer of Deft. Richard Harris to Crossclaim
of deft. Seaway Scaffold Co., filed. Copies mailed.

April 14. Deft. Notice of depositions upon oral
examination, filed.

April 14. Answers of deft. Richard Harris to request for
admissions, filed. Copies mailed.

April 15. Answers of Deft. Seaway Scaffold Co., Inc. to
pltfs’ requests for admission filed. Copies mailed.

April 21. Pitfs. exhibit list fld. c.m.
April 22. Pitfs’ trial brief, filed.

April 22. Deft. supplemental trial brief, filed. (from
Lucas County 6th circuit)

April 23. Pitf's proof of service of trial brief, filed.
April 23. Deposition of Robert I. Finkel, M.D., filed.
April 23. Deposition of Richard E. Harris, filed.

April 23. Deposition of Robert [. Finkel by Video tape,
filed.

Docket Entries 5

April 26. Pltf’s proposed instruction No. 1, filed.
April 26. Pits proposed Voir Dire, filed.

April 26. Trial Brief of Deft. Seaway Scaffold Co, Inc.,
filed.

April 26. Min of roc. filed. Jury impaneled and sworn.
Opening Statement made.

April 27. Min of Proc. filed. Trial by the jury resumed.
Test. of Pitf. begun. Court adjorned until 4-29-76.

April 29. 6 summons; subp. ret. EXC. to: George Henry
4/16/76; Harris - 4/16/76; Blair - 4/19/76; Nehring -
4/23/76, Med. Records Lib - 4/23/76; Med. 4/23/76.

May 3. Min. of Proc. filed. Trial by jury resumed. Test.
of Pift. cont. Court adjourned.

May 5. Min. of Proc. filed. Trial by the jury resumed.
Test. of Pitf. cont. and concluded. Pitf. rests. Deft.
Harris moves for a directed verdict. Overruled. Deft.
Seaway moves for a directed verdict. Sustained.
Deft. Harris w/d cross claim against Seaway. Deft.
rests. Pltf. opening argument. Deft. closing
argument. Pitf. closing argument. Jury charged. Jry
deliberates. Ct. in recess until 9:30 a.m. 5-6-76.

May 6. Min of Proc. filed. Hung jury. Jury excused. Ct.
will advise to new trial date. Pitf. ex. admitted 2-10,
13,15,16,20,22-24,27,28,31, 36-38; Deft. ex. admitted
A-E. ex in room 214

May 7. Notice of trial date at 10:00 a.m. Mond. June

14th, 1976 at Toledo filed. Copies to Philo, Gallon,
Raker.

6 Docket Entries

May 14. 1 Civil Subpoena to Produce etc. returned
SERVED 4-26-76 to Edward Clower, Safety Rep.,
filed. Marshal fees $4.40.

June |. Pitf. mo to assess costs fd.
June 1. Pitf. Memo. in support of mo. fld.
June 14. Pltfs. proposed instr. fld.

June 14. Deft. memo. in opposition to pltfs motion to
assess costs and/or grant alternative relief, filed.
Copies mailed.

June 14. Min of Proc. fld. Jury impaneled and sworn.
Deft. moves for separation of witnesses. Opening
statements made. Evid. of Plitf. begun.

June 15. Min of Proc. fld. Trial by the jury cont. Evid.
of Pitf. cont. and concluded. Pltf. rests. Deft. moves
for directed verdict. R.R. Evid. of Deft. begun and
concluded. Deft. rests. Pitf. rebutts. All parties rests
Deft. renews motion for directed verdict. Overruled.
Pitf. opening arg. Deft. closing arg. Plitf. closing arg.
Jury charged. Jury deliberates.

June 16. Min. of proc. fild. Jury deliberating. Jury
returned with verdict for the Pitf. ex. pltf. adm.
1-7,10,13,15,16,27,31,37,38, ex. in 214, ex. deft.
adm. A-E.

June 16. VERDICT — In favor of pltf.

June 16. Min of Proc. fld. as to damages. Evid. of Pitf.
begun and concluded. Pitf. rests. Deft. rests.

June 17. Min of Proc. fld. trial by the jury resumed.
Pitf. opening arg. deft. closing arg. Pitf. closing arg.
Jury charged. Jury deliberates ex. adm Pitf.
8,9,22,23,24,28,20 Jury returned. ex in 214

Docket Entries 7

June 17. VERDICT - as for damages for Robert
Breitner $200,000. and Luella Breitner $36,000.

June 18. Judgment on jury verdict fld. Judgment entered
in favor of Pitf. R. Breitner against deft. and award
the sum of $200,000. with Interest at 6% and the

cost of this action. Copies to counsel.

June 18. Judgment on jury verdict fld. Judgment entered
in favor of plitf. L. Breitner against deft. and award
her the sum of $36,000. at the rate of 6% interest
and the cost of this action. copies to counsel.

June 23. Civil Subpoena to produce etc. returned
EXECUTED 4-9-76 to Richard Harris, filed.
Marshal fees $2.48.

June 23. Civil Subpoena returned SERVED 6-9-76 to
George Henry, filed. Marshal fees $8.72.

June 23. Memo. and order of the Court, filed. DJY
77(d) copies to Philo, Raker. Ordered that motion of
pitfs to assess costs is denied.

June 25. Def. mo. for judgment notwithstanding the
verdict, fld. c.m.

July 16. Pltf. memo in opp. to motion for judgment non
obstante verdicto, fld. c.m.

July 21. Piltfs. notice of taxation of costs, filed. Copies
mailed. Attached Bill of Costs, Affidavit of Nicholas
J. Rine.

August 2. Deft. motion for extension of time to August
16, 1976, filed. NJW for DJY. Copy to Moan.

August 13. Brief of deft. on motion for judgment
notwithstanding the verdict, filed. Copies mailed.

8 Docket Entries

August 27. Stip & ORDER: pltf. have time to file opp.
to Sept. 10, 1976, fld. c.m.

September 10. Pitf. brief in opposition to deft’s motion
for judgment N.O.V., filed. Copies mailed.

October 21. Reply brief of def. Harris, fld. c.

October 21. ORDER Setting time for oral argument:
hearing be set for Thursday, Oct. 28, 1976 at 1:30
p.m., f.o. each side granted | hr. for argument, fld.
DJY,J. C.M.

October 28. Min. Proc: Hearing on motion re judgment
notwithstanding verdict. | hr. each side. Pltf.
opening statement. Def. closing argument. Pitf.
closing argument. Court discusses matters with
counsel. Court adjourned.

1977

February 15. OPINION AND ORDER: Def. mo. for
judgment n.o.v. is hereby sustained; F.O. judgments
entered for pltfs. June 17, 1976, are hereby
VACATED, SET ASIDE, AND HELD FOR
NAUGHT, and it is, F.O. Clk. shall enter judgment
in favor of defendant., fld. DJY, J. c.m.

February 15. Judgment entered in favor of def. against
pltf., fld. c.m.

March 15. Notice of Appeal

APPENDIX B

Opinion and Order 447

OPINION AND ORDER

(In The United States District Court
For The Northern District of Ohio
Western Division)

(Filed February 15, 1977)

YOUNG, J:

This action arises out of an accident which happened
on October 3, 1972, on the site of a construction project
in Toledo, Ohio. The plaintiffs, who are husband and
wife, seek damages for personal injuries to the plaintiff
Robert Breitner, hereafter referred to as the plaintiff, and
loss of consortium to the plaintiff Luella Breitner. There
were originally two defendants, Richard Harris, hereafter
referred to as the defendant, who was the owner of the
premises and also the general contractor for the
construction property, and Seaway Scaffold Company, a
supplier of equipment.

Although this Court is now satisfied that the case
should never have been submitted to a jury at all, in fact
it was tried to a jury twice. At the first trial, the Court
sustained the motion of the defendant Seaway Scaffold
Company for a directed verdict in its favor at the close of
the plaintiffs’ case. The trial resulted in a hung jury.
Thereafter, a bifurcated trial was had, at which the jury
first found the defendant liable, and then assessed the
plaintiffs’ damages in the sums of $200,000.00 for Robert
Breitner and $36,000.00 for Luella Breitner.

The defendant filed a timely motion for judgment
notwithstanding the verdict, which was briefed and also
was argued orally by the parties. The Court finds that the
motion is well-taken, and should be granted.

448 Opinion and Order

The evidence showed that at the time of the accident,
the plaintiff was a journeyman carpenter with somewhat
over nineteen years of experience, but without formal
apprenticeship or other training. He was an employee of
4-Square Builders, the carpentry subcontractor on the
defendant’s building project, the construction of a large
motel. One of the owners of 4-Square Builders, George
Henry. was also employed by the defendant as his
general superintendent on the job.

The accident happened while the plaintiff was at work
installing windows on an upper floor of the building. He
was inside the building. Outside the building one of the
subcontractors had erected scaffolding, consisting of
tubular metal support some ten feet high, placed about
twelve feet apart, and standard scaffold planks sixteen
feet long, one foot wide, and one and a half inches thick.
Only a single plank was used for the scaffolding outside
the window.

The specific safety standards for scaffolding of the
Ohio Industrial Commission require that for scaffolding of
the height involved, vertical supports may be no more
than eight feet apart, and at least two standard planks
must be used, cleated together, and equipped with
toe-boards and guard rests.

While plaintiff was inside the building, his helper was
outside standing on the rough plank, trying to fit a
window unsuccessfully. The plaintiff stepped out onto the
plank, took a power saw, and squatted down preparatory
to making a cut with the saw. At that point the plank
broke. The plaintiff fell to the ground, suffering serious
injuries.

Under the law of Ohio, the plaintiff was covered by
Workmen’s Compensation provided by his employer,

Opinion and Order 449

4-Square Builders. However, the Ohio Workmen's
Compensation law does not bar a workman injured in
covered employment from bringing an action against a
third party independent of his employer for negligently
causing his injuries. Neither the employer nor the
workmen’s compensation fund have any right of
subrogation in connection with the injured workmen's
claims against independent third parties.

Acting under this law, the plaintiff commenced this
action against the defendant as an independent third
party. While there appears to this Court to be
considerable conflict between this claim that the
defendant was a contractor independent of plaintiff's
employer and plaintiff's claims that his employer was not
a contractor independent of the defendant, it is not
necessary to resolve this dilemma, or to give it any
further consideration, in order to reach a_ proper
conclusion in this case.

The plaintiff asserts a number of specifications of
negligence on the part of the defendant as follows:

A. he negligently failed to employ a careful carpentry
contractor;

B. he violated his non-delegable duty to provide
plaintiff with a safe place to work or to exercise due care
for his safety;

C. he was negligent in exercising the control which he
retained;

D. he failed to warn plaintiff of hazardous conditions
and equipment of which he was aware or should have
been aware in the exercise of due care and of which
plaintiff was unaware;

450) Opinion and Order

E. he gave ambiguous orders and acquiesced in
negligent methods of work;

F. he failed to conform to applicable construction
safety statutes and regulations.

An examination of the case law in this area reveals that
these specifications are standard specifications used with
slight variations, by the plaintiffs-counsel in bringing
actions for injured employees of subcontractors against
owners or general contractors. They have been analyzed
and considered both by the appellate courts of Ohio and
the Sixth Circuit Court of Appeals. Unfortunately,
defendant’s counsel did not direct the attention of this
Court to those authorities until after the second trial of
this case, by which time the Court’s own tardily taken
research had disclosed them.

Plaintiffs’ chief counsel is a very expert, experienced,
and learned attorney, who by his research has become
convinced that the toll of accidental injuries in the
construction industry could be vastly reduced if the
courts and legislatures would relieve workmen of any
responsibility for their own safety, and require owners or
general contractors to stand constant guard over them. In
support of this thesis, he has published writings, notably
one article ‘“‘Revoke the Legal License to Kill
Construction Workers’’ XIX DePaul L. R. 1 (Autumn,
1969). He has also located safety experts schooled in
‘“‘risk recognition,’’ such as the witness Jenkins who
testified in this case. These experts believe that ordinary
construction workers are totally incapable of recognizing
the risks involved in their daily work, and are not
ordinarily reasonable and prudent persons. While the
conduct of the plaintiff in this case certainly gives
powerful support to the witness Jenkins’s views, this

Opinion and Order 451

Court is reluctant to believe that all construction workers
are as heedless of their own safety, and ‘lacking in
understanding of their trade, as the plaintiff Robert
Breitner appeared to be.

The problem from a legal standpoint is that once one
departs from the field of workmen's compensation or
employer’s liability law, where legislative action has
restricted or eliminated the common-law doctrines of
assumption of the risk, the fellow-servant rule, and
contributory negligence, those rules remain applicable to
any other on-the-job negligence cases presented to the
courts. This Court is reluctant to eliminate those
doctrines by judicial fiat even if, as a trial court judge, he
were at liberty to do so. If the theories of plaintiffs’ chief
counsel are to become law, this ought to be accomplishd
by legislative action. This Court is very well acquainted
with the legislative process. It is perhaps more tedious
and complicated than the judicial one, but it can be
learned and employed very effectively by those who
really desire to do so. In most cases, the legislature can
overrule the decision of the highest court, as witness the
recent action by the Congress in overruling the decision
of the Supreme Court in the case of Alyeska Pipeline
Service Co. v The Wilderness Society, 421 U.S. 420
(1975).

In any event, even if this Court were to yield to the
plaintiffs’ arguments and attempt to make a new law, it is
precluded from doing so by the decisions of the higher
courts. In the case of Cuppy v The Lathrop Co, C.A. No
L-75-170 (Lucas Cty Ct App, filed Apr. 26, 1976), a case
factually on all fours with the present case, that Court
affirmed a judgment of the common pleas court directing
a verdict in favor of the defendants at the close of the

452 Opinion and Order

plaintiffs’ case. Although the affirmance was primarily
upon the ground that the plaintiff as a matter of law had
assumed the risk and was guilty of contributory
negligence, in accordance with the technical requirement
of the Ohio law that it rule upon all errors assigned, it
considered the plaintiffs’ specifications of negligence,
which were substantially the same as those in the present
case, and found no negligence in respect to any of them.

In its decision, which in this diversity case is binding
upon this Court, the Ohio court of appeals relied heavily
upon the decision of the United States Court of Appeals
for the Sixth Circuit in Gowdy v United States, 412 F 2d
525 (1969). In that Federal Tort Claims Act case,
plaintiff, an employee of a contractor which had a
contract with the coast guard to install machinery in a
lighthouse on Lake Michigan, fell at work and was
injured. He fell from a flat roof with no guard rail, a
situation very much like the plaintiff Robert Breitner’s
fall from an obviously shaky and overloaded scaffold.

In his complaint, Gowdy made the following
specifications of negligence:

1. In hiring an incompetent contractor;
(substantially the same as specification A herein).

2. In not exercising reasonable care in the
performance of its right of control over plaintiff's
employer; (substantially the same as specification
C herein).

3. In furnishing unsafe equipment; (similar to
specification F herein).

4. In giving ambiguous orders to an
independent contractor; (similar to specification E
herein).

Opinion and Order 453

5. In failing to warn plaintiff of the dangerous
condition of the lighthouse; (similar to
specification D herein).

6. In failing to provide a reasonably safe place
to work; (similar to specification B herein).

The court of appeals carefully analyzes all of these
specifications, and finds them to be without substance in
the law. It also carefully considers the question of
contributory negligence. The district court has found no
contributory negligence, accepting the view of plaintiff's
safety experts that a workman’s attention would be
concentrated almost exclusively on his work effort, and
thus lulled into a sense of security he would easily be
lured into a position of danger. It is hard to see how this
argument can be squared with the basic doctrine of
negligence law that as the danger to be.foreseen in what
is being done increases, so the amount of caution
required in the exercise of ordinary care increases, but
that is perhaps aside from the point. The plaintiff here
argues the same position that the trial court took in the
Gowdy case. The majority of the court of appeals in
Gowdy says ‘Although this statement has some
emotional appeal, it will not withstand analysis.’’ (P.
535). A judgment of the district court in favor of the
plaintiff was reversed, and the cause was remanded with
instructions to dismiss the complaint.

This Court fully accepts and entirely agrees with these
two decisions of the courts of appeals. It is ashamed that
it accepted without analysis the contentions of the
plaintiffs, and thus caused the trouble and expense of two
jury trials of this cause, when the matter should have
been resolved, at the latest, at the close of the plaintiffs’
case in chief at the first trial.

454 Opinion and Order

This Court will attempt to profit by its error in this
case, and not repeat it in several other pending cases
which involve the same situation of claims of employees
of subcontractors against owners or general contractors,
and present identical or similar specifications of
negligence. If improvements in the safety laws are
needed, a question about which this Court is not entirely
convinced that the answer is in the affirmative, let them
be made by the legislature, whose function to make the
law ought not to be usurped by the courts, however
much they may be tempted or impeiled thereto by
legislative indifference.

This Court has no doubt that the defendant was not
guilty of negligence in any respect which directly caused
the plaintiff Robert Breitner’s injuries, and reasonable
minds ought not to differ with a conclusion that it is
negligent for an experienced journeyman carpenter to
step out on a single plank, of excessive length, upon
which another man is already standing. The defendant’s
motion for judgment notwithstanding the verdict must be
sustained.

Therefore, for the reasons stated, good cause
appearing, it is
Ordered that the motion of the defendant for judgment

notwithstanding the verdict be, and the same hereby is,
Sustained; and it is

Further Ordered that the Judgments entered for the
plaintiffs Robert Breitner and Luella Breitner on June 17,
1976, be, and the same hereby are, Vacated, Set Aside,
and Held For Naught; and it is

Further Ordered that the clerk Shall Enter Judgment
for the Defendant.

It Is So Ordered.

Dated: February 11, 1977. /s/ Don J. Young
At: Toledo, Ohio. United States District Judge

APPENDIX C

Do Nor Pustuisu

No. 77-3303

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Rosert BreirNeR and LUELLA

BREITNER,
Plaintiffs-Appellants,
ssi ate APPEAL from the
v. United States District
Rucuanp Hanns, d/b/a Richard Court for the North-

Harris Builders, and Seaway em District of Ohio.

SCAFFOLDING CoMPANY, INC.,
Defendants-Appellees. |

Decided and Filed December 10, 1979.

Before: Encet, Circuit Judge; Peck, Senior Circuit Judge,
and Brown, District Judge. °

ENGEL, Circuit Judge. Robert Breitner, a journeyman car-
penter with nineteen years experience, was injured when
scaffolding onto which he had stepped broke, causing him to
fall ten feet to the ground. At the time of the accident,
Breitner was employed by Four-Square Builders, the carpentry
subcontractor on a building project for the construction of the
Sheraton-Westgate, a motel-office-shopping complex in Toledo,
Ohio. Breitner was working with an assistant, John Nearing,
an apprentice carpenter, installing upper floor windows of the
motel. Nearing was positioned on the scaffolding outside

* Hon. Bailey Brown, Chief Judge, United States District Court for
the Western District of Tennessee, sitting by designation.

2 Breitner v. Harris, d/b/a Harris Bldrs., et al. No. 77-3303

while Breitner was inside, lining up the measurements for
the installation. At one point, Nearing had difficulty fitting
a window within the opening in the building. Breitner gave
instructions, but when he realized that Nearing did not under-
stand them, Breitner undertook to modify the window opening
himself. Breitner stepped out of the window onto the
scaffolding, which moments thereafter broke, plunging him
to the ground.

The proofs showed without dispute that the scaffolding in
question was approximately ten feet high, with a single plank
of scaffold grade lumber, sixteen feet long, one foot wide and
1% inches thick spanning a distance of approximately 12 feet
between tubular metal supports. It is undisputed that a 12-foot
span for a plank of those dimensions was unsafe. The plank
itself was not defective in any manner.

Under Ohio law, plaintiff was covered by Workmen’s Com-
pensation insurance provided by Four-Square, and he re-
ceived an appropriate award from that source. However,
Ohio law does not bar a workman injured in covered employ-
ment from bringing an action against a third party, indepen-
dent of his employer, for negligently causing the injuries which
gave rise to a workmen’s compensation award. Thompson
v. Ohio Fuel Gas Co., 11 Ohio App. 2d 212, 229 N.E.2d 756
(1964). Levy v. Coon, 11 Ohio App. 2d 200, 229 N.E. 2d 747
(1964). Apparently neither the covered employer nor the
workmen’s compensation fund have any right of subrogation
to the injured workman’s claim against independent third
parties. See Fischer Construction Co. v. Stroud, 175 Ohio St.
31, 191 N.E. 2d 164 (1963); Truscon Steel Co. v. Trumbull
Cliffs Furnace Co., 120 Ohio St. 394, 166 N.E. 368 (1929).
Breitner brought suit against the general contractor, Richard
Harris, d/b/a Richard Harris Builders, and against Seaway
Scaffolding Company, Inc., which had furnished the scaffold-
ing materials.

The complaint charged Harris with the following negligent
conduct:

No. 77-3303 Breitner v. Harris, d/b/a Harris Bldrs., et al. 3

a. he negligently failed to employ a careful carpentry
contractor;

b. he violated his non-delegable duty to provide plaintiff
with a reasonably safe place to work, or to exercise due
care for his safety;

c. he was negligent in exercising the control which he
retained;

d. he failed to warn plaintiff of hazardous conditions
and equipment of which he was aware or should have
been aware in the exercise of due care and of which
plaintiff was unaware;

e. he gave ambiguous orders and acquiesced in negligent
methods of work;

f. he failed to conform to applicable construction safety
statutes and regulations.

Plaintiffs’ claim against defendant Seaway Scaffolding Com-
pany is that Seaway failed to furnish adequate instructions for
the construction of the scaffolding.

The district court directed a verdict for the defendant
Seaway and, after a jury verdict for the plaintiff, entered judg-
ment n.o.v. for defendant Harris. In his memorandum opinion
granting judgment n.o.v. for defendant Harris, the district
judge wrote:

This Court has no doubt that the defendant [Harris]
was not guilty of negligence in any respect which directly
caused the plaintiff Robert Breitner’s injuries, and rea-
sonable minds ought not to differ with a conclusion that it
is negligent for an experienced journeyman carpenter to
step out on a single plank, of excessive length, upon which
another man is already standing.

In so ruling the court relied upon an unreported decision of
the Lucas County Court of Appeals in Cuppy v. The Lathrop

4 Breitner v. Harris, d/b/a Harris Bldrs., et al. No. 77-3308

Co., CA No. L-75-170 (Lucas County Court of Appeals, filed
April 26, 1976), which it found to be on all fours with the
present case.

I, RELIANCE UPON CUPPY

The parties agree that under the Erie doctrine, Ohio law
applies in this diversity case. Erie R. Co. v. Tompkins, 304
U.S. 64 (1938). Nevertheless, plaintiffs assert that the district
judge’s reliance upon Cuppy was improper because that de-
cision is an unreported intermediate appellate court decision.

In King v. United Commercial Travelers, 333 U.S. 153
(1948), the Supreme Court ruled that in a diversity case, the
federal courts are not bound under the Rules of Decision Act,
28 U.S.C. § 725, now 28 U.S.C. § 1652 (1956), to follow the
decision of a state trial court. In King the state court decision
claimed to be controlling was that of a court of common
pleas of South Carolina. It had neither been indexed nor
reported. Observing that there was no authority in South
Carolina law which would make the decision of a state trial
court binding in any way on any other court of the state, the
Supreme Court found “it would be incongruous indeed to hold
the federal court bound by a decision which would not be
binding on any state’court.” King v. United Commercial
Travelers, supra, 333 U.S. at 161. It is undisputed that under
Ohio law opinions rendered by district courts of appeal are
not binding on courts of appeal in other districts.’ Hogan v.
Hogan, 29 Ohio App. 2d 69, 278 N.E. 2d 367 (1972).

Plaintiffs also urge that Ohio Rev. Code Ann. § 2503.20
expressly precludes Cuppy from having any precedential
effect. Section 2503.20 provides that “[a]fter August 15, 1919,
all such cases must be reported in accordance with this section
before they shall be recognized by and receive the official

easier are eleven judicial districts in Ohio, Ohio Rev. Code Ann.

No. 77-3303 Breitner v. Harris, d/b/a Harris Bldrs., et al. 5

sanction of any court.” However, in Gustin v. Sun Life
Assurance Co., 154 F.2d 961 (6th Cir.), cert. denied, 328
U.S. 866 (1946), this provision was found to be directory in
nature and not mandatory.

We agree with the plaintiffs that Cuppy was not binding
upon the district court here. However, we do not find that
it was error for the court to consider Cuppy. We believe that
the rationale expressed by the Supreme Court in Commissioner
v. Estate of Bosch, 387 U.S. 456, 465 (1967), provides the
appropriate and altogether sensible rule:

[E]ven in diversity cases this Court has further held
that while the decrees of “lower state courts” should be
“attributed some weight . . . the decision [is] not con-
trolling. . .” where the highest court of the State has not
spoken on the point. King v. Order of Travelers, supra,
at 160-161. And in West v. A. T. & T. Co., 311 U.S. 223
(1940), this Court further held that “an intermediate
appellate state court ... is a datum for ascertaining state
law which is not to be disregarded by a federal court
unless it is convinced by other persuasive data that the
highest court of the state would decide otherwise.” At
237. (Emphasis supplied.) Thus, under some conditions,
federal authority may not be bound even by an inter-
mediate state appellate court ruling... .

[T]he State’s highest court is the best authority on its
own law. If there be no decision by that court then
federal authorities must apply what they find to be the
state law after giving “proper regard” to relevant rulings
of other courts of the State. In this respect, it may be
said to be, in effect, sitting as a state court. Bernhardt
v. Polygraphic Co., 350 U.S. 198 (1956).

See also Winston Corp. v. Continental Casualty Co., 508 F.2d
1298, 1302 (6th Cir.), cert. denied, 423 U.S. 914 (1975);
Wright, Law of Federal Courts, § 58 at 267-71, 3rd ed. 1976;
1A Moore’s Federal Practice {| 10.307[2] at 3088-89 (1979).

6 Breitner v. Harris, d/b/a Harris Bldrs., et al. No. 77-3303

This court has repeatedly recognized that a district judge’s
construction of state law is entitled to considerable deference.
In Lenoir v. Porters Creek Watershed District, 586 F.2d
1081, 1093 (6th Cir. 1978), we wrote that:

[iJn the absence of any precise decisional law on the
issue, we accord considerable weight . . . to the inter-
pretation of the law of [a state] by a federal district judge
located in that state who, therefore, would be possessed
of a greater sensitivity to that state’s interpretation of its
own laws.

Citing Martin v. University of Louisville, 541 F.2d 1171 at
1176 n. 7 (6th Cir. 1976) and cases cited therein. See also,
e.g., Bishop v. Wood, 426 U.S. 341, 346 & n. 10 (1976);
Insurance Co. of North America v. Federated Mutual In-
surance Co., 518 F.2d 101, 106 & n. 3 (6th Cir. 1975); Rudd-
Melikian, Inc. v. Merritt, 282 F.2d 924, 929 (6th Cir. 1960).

In short therefore, we hold that while Cuppy was by no
means controlling, as suggested by the district judge, he was
nonetheless entitled to consider it for what it was worth under
the circumstances. It was obviously entitled to less weight
than a decision which was regularly reported, or a decision
of the highest court of Ohio. It was, at the same time, not
improper for the trial judge to refer to Cuppy in a federal
diversity case, concluding as he did that Cuppy fairly rep-
resented the law of Ohio as expressed by that state’s highest
court.

II. SEAWAYS NEGLIGENCE

In directing a verdict for the defendant Seaway, Judge
Young held there was no evidence whatever of negligence on
the part of Seaway Scaffolding Company. Suffice it to say that
we agree entirely. Seaway furnished the scaffolding to Harris,

No. 77-3303 Breitner v. Harris, d/b/a Harris Bldrs., et al. 7

but Seaway admittedly was not responsible for its erection.
It was further admitted that there was no defect in the
supplied equipment. Instead plaintiffs claimed only that Sea-
way failed to provide adequate instructions for assemblage
of the scaffolding. In fact, instructions were furnished, and
they were not shown to be inadequate. Furthermore no evi-
dence was adduced to indicate that any insufficiency in the
instructions bore in any way upon the ultimate negligent
construction of the scaffold in question.

Ill. HARRIS’ NEGLIGENCE

The facts concerning ownership and control of the premises
here are somewhat unusual. Title to the property itself, at
least during the construction phase, was in Harris and his
wife. Harris was sued in his capacity as an individual do-
ing business as Richard Harris Builders, and as the general
contractor for the project. As the general contractor Harris
contracted for the carpentry work with Breitner’s employer,
Four-Square Builders, Inc., a corporation. One of the owners
of Four-Square was George Henry. Henry was also indi-
vidually hired by Harris as the general superintendent of
the project, and Henry was actively engaged in that capacity
on behalf of Harris. While Henry was one of the co-owners
of stock in Four-Square, it was not shown whether he was also
an officer or an employee of Four-Square. Henry’s role, in
this construction project in any event, appears to have been
as an on-the-scene supervisory agent for Harris.

The evidence showed that the scaffolding was erected by
carpenters and employees of Four-Square Builders, Brcitner’s
employer. To the extent that the responsibility for his in-
juries was that of Four-Square, Breitner’s sole recourse was
in his recovery of a Workmen’s Compensation award. There
is, however, some evidence that Henry, as Harris’ general
supervisor, undertook not only supervision of the construc-
tion details but also of the safety and working conditions of

8 Breitner v. Harris, d/b/a Harris Bldrs., et al. No. 77-3303

the subcontractors including Four-Square. Thus it was shown
that on a previous occasion Henry had actually required other
scaffolding to be torn down and to be rebuilt safely. While
Henry denied having observed the scaffolding in question
prior to the accident, plaintiff's co-worker, John Nearing, tes-
tified that Henry had been in the vicinity of the scaffolding
earlier, raising at least an inference that his supervision should
reasonably have included an examination of the scaffolding
in question. To the extent that such a responsibility was un-
dertaken, Henry’s conduct, if negligent, was attributable to
Harris under the doctrine of respondeat superior. It is un-
questioned that Henry acted as general supervisor of the
project under an express designation of that authority by
Harris. There was no showing that Henry was acting only
as an employee or representative of the subcontractor Four-
Square. Under these circumstances, we believe that the is-
sue of Harris’ responsibility for the safety of the premises and
for the safety of the scaffolding was properly one for the
jury. See Parsons v. Blount Bros. Construction Co., 281 F.2d
414 (6th Cir. 1960).

In Parsons, the plaintiff was electrocuted when a hydrocrane
with which he was working came into contact with a high
voltage wire strung overhead at the construction site. Parsons’
theory of liability was that the general contractor, Blount, and
its safety engineer were responsible for correcting any safety
hazards which were in the area, and that Blount knew or
should have known of the danger inherent in the maintenance
of overhead uninsulated high tension wires in close proximity
to men working with cranes. Plaintiff there invoked Ohio’s
frequenter statute, and its requirement that the owner or
controller of premises furnish workers with a reasonably safe
place in which to work. Even though Parsons was: working
for a subcontractor, Judge Weick, writing for the court, found
that the duty of the principal contractor in control of the
jobsite extended to an employee of the subcontractor, or at
least was a question for the jury:

No. 77-3303 Breitner v. Harris, d/b/a Harris Bldrs., et al. 9

Plaintiff had only sought to show that defendant con-
trolled safety features and abatement of hazards. If this
were true it would be immaterial that defendant did not
have control over other aspects, as to the method of
carrying out the work, exclusive of safety.

In view of all this evidence, in our judgment, it was
for the jury to say whether Blount, having custody of the
job site, also had control thereof. Robinson v. Republic
Steel Corporation, Ohio App. 1948, 78 N.E.2d 381.

Whether Blount was negligent in failing to furnish de-
cedeni a reasonably safe place in which to work was for
the jury to determine. It was for them to decide whether
the conditions heretofore discussed constituted a hazard
which Blount, in the exercise of ordinary care, could have
eliminated.

281 F.2d at 416-18.

The circumstances here are admittedly not as strong as
those which brought about a reversal and remand for trial
in Parsons. The safety engineer more clearly acknowledged
his responsibility in Parsons than did Mr. Henry here. The
scaffolding here was not a permanent part of the premises
but was moved about from place to place by Four-Square’s
carpenters who had the primary responsibility for its proper
erection. Nevertheless, Harris procured the scaffolding and,
through Henry, undertook at least some supervisory responsi-
bility for its safe use. This was logical, as the proofs showed
that use of this scaffolding by other subcontractors on the
scene, such as brickmasons, was also contemplated. In con-
sequence we conclude that the questions of Henry’s negli-
gence, and of Harris’ responsibility therefor were properly
for the jury. The question of Breitner’s contributory negli-
gence, however, is another matter.

10 Breitner v. Harris, d/b/a Harris Bldrs., et al. No. 77-3303

IV. BREITNER’S CONTRIBUTORY NEGLIGENCE

This case appears to have been pleaded, tried, and sub-
mitted to the jury upon issues of negligence and contributory
negligence. Ohio also recognizes the doctrine of assumed risk
and its application here is argued on appeal. Ohio recog-
nizes a difference between the two concepts: “ ‘Contributory
negligence’ and ‘assumption of risk’ are not synonymous terms
. . . » The former is based on carelessness, the latter on ven-
turousness.” Porter v. T. Railroad Co., 152 Ohio St. 463, 90
N.E.2d 142, 143 (1950).

At the same time Ohio recognizes that contributory neg-
ligence and assumption of risk, though not synonymous, are
not necessarily mutually exclusive. Wever v. Hicks, 11 Ohio
St.2d 230, 228 N.E.2d 315 (1967); Ricks v. Jackson, 169 Ohio
St. 254, 159 N.E.2d 225 (1959). See also Dunn v. Higgins,
14 Ohio St. 239, 237 N.E.2d 386 (1968). We note also that
the Ohio Supreme Court has held that the common law de-
fenses of contributory negligence and assumption of risk are
available as a defense to liability under the frequenter stat-
ute, Ohio Rev. Code Ann. § 4101.11. See Westwood v. Thrifty
Boy Super Markets, Inc., 29 Ohio St. 2d 84, 278 N.E.2d 673
(1972).

Ohio appears to follow generally accepted tort principles
that contributory negligence on the part of a plaintiff which
proximately resulted in the occurrence of the plaintiffs in-
jury is an absolute bar to recovery in a negligence action.
This denial of recovery is not premised upon the notion that
the defendant is relieved of any duty toward the plaintiff, but
rather that “the plaintiff is denied recovery because his own
conduct disentitles him to maintain the action. In the eyes
of the law both parties are at fault; and the defense is one
of the plaintiffs disability rather than the defendant’s in-
nocence.” Lazar v. Cleveland Illuminating Co., 43 Ohio St.
2d 131, 331 N.E.2d 424, 426 (1975), quoting Prosser, Law
of Torts (4th Ed.), 417, Section 65.

No. 77-3303 Breitner v. Harris, d/b/a Harris Bldrs., et al. 11

In Lazar, the Ohio Supreme Court accepted Section 466
(a) of the Restatement of Torts, 2d, as illustrative of Ohio
law:

The plaintiffs contributory negligence may be either

(a) an intentional and unreasonable exposure of him-
self to danger created by the defendant’s negligence, of
which danger the plaintiff knows or has reason to know,
or

(b) conduct which, in respects other than those stated
in Clause (a), falls short of the standard to which the
reasonable man should conform in order to protect him-
self from harm.

While no doubt there are circumstances in which the sepa-
rate doctrines of contributory negligence and assumption of
risk may under Ohio law produce different results, sce, e.g.,
Morris v. Cleveland Hockey Club, 157 Ohio St. 225, 105 N.E.
2d 419 (1952), and while Breitner’s act of stepping onto the
single planking when a co-worker was already on it might
be construed as “venturousness”, it is equally and perhaps
preferably analyzed in terms of whether he used reasonable
care for his own safety and whether reasonable minds could
differ concerning this conclusion.

In granting judgment n.o.v. for defendant Harris, District
Judge Young found that: “Reasonable minds ought not to
differ with a conclusion that it is negligent for an experienced
journeyman carpenter to step out on a single plank, of ex-
cessive length, upon which another man is standing.” In
reaching this conclusion, Judge Young relied principally upon
Cuppy, supra, a case he found to be “on all fours” with the
instant case. The court in Cuppy in turn relied principally
upon a decision of this court, Gowdy v. United States, 412
F.2d 525 (6th Cir.), cert. denied, 396 U.S. 960 (1969).

In Cuppy, a journeyman electrician with many years experi-
ence in the construction industry ascended a 12-foot ladder

12 Breitner v. Harris, d/b/a Harris Bldrs., et al. No. 77-3303

placed through an opening in an acoustical ceiling to perform
electrical work on the structural ceiling, which was approxi-
mately six feet above the false ceiling. The ladder unex-
plainedly rocked while the plaintiff stood near its top. The
plaintiff thereupon grasped a pencil rod hanger near him, the
acoustical ceiling gave way, and he fell to the floor. The
court held that the plaintiff “was an experienced journeyman
electrician with full knowledge of such equipment as the lad-
der involved herein and scaffolds. He chose to use the ladder
rather than request the scaffold or some other means of per-
forming his work. The Appellant’s conduct was negligence as
a matter of law... .”

Gowdy involved an action for personal injuries under the
Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) and 2671, et
seq. While working on the roof of a machinery house which
formed part of a Lake Michigan lighthouse, plaintiff Gowdy
lost his balance and fell to the ground. The Sixth Circuit re-
versed a district court decision that the United States was
negligent in failing to maintain guard rails on the roof, finding
the hazard to have been open and obvious to the plaintiff.
Although Gowdy primarily involved Michigan negligence law,
the court in Cuppy found the decision to be equally applicable
in Ohio.

Although neither of these cases appear to us to be pre-
cisely on all fours with the present case, they do repeat the
kind of analysis to be undertaken when an experienced work-
man incurs a job-related injury. The knowledge and experi-
ence of the plaintiff cannot be ignored in evaluating his con-
duct. We agree with the district court that the plaintiff
here acted negligently as a matter of law, and that no rea-
sonable person could conclude otherwise. That his injuries
may have induced the jury out of sympathy to disregard
the plain facts and the court’s instructions is perhaps under-
standable, but it is precisely this circumstance for which the
law provides the remedy accorded here by the district judge.

No. 77-3303 Breitner v. Harris, d/b/a Harris Bldrs., et al. 13

We recognize that the question of contributory negligence
is normally one for the jury. In Lazar, supra, 331 N.E. 2d 433,
the Ohio Supreme Court wrote:

A finding of contributory negligence on the part of a
plaintiff involves the interplay of complex, and perhaps
contradictory, factors. In addition to the knowledge im-
puted to the plaintiff, one must consider any special
knowledge on his part, any external indicia which warns
of danger, the culpability of the defendant, and the totali-
ty of circumstances under which the accident occurred.
These are considerations uniquely tailored to the jury
function. Absent evidence so clear that reasonable minds
could not differ with regard to it, a holding that con-
duct is contributorily negligent as a matter of law is
improper.

Although the cases in which a finding of contributory neg-
ligence as a matter of law is proper may be few, our examina-
tion of the authorities convinces us that Ohio judges have not
been unwilling to rule on the question as a matter of law
where the evidence admitted of no other reasonable conclu-
sion than that of the plaintiffs own negligence, especially
where the plaintiff, like Breitner here, acted knowledgeably
and in deliberate disregard of an obvious danger.?
Whatever may have been Henry’s obligation as project
supervisor, the facts are undisputed that the carpenters at

2 Curiously, neither party in this litigation invoked Ohio’s “fre-
quenter” statute, Ohio Rev. Code Ann. § 4101.01. et seq., imposing upon
employers the duty to furnish a safe place of employment and de-
fining an employer as one “having control or custody of any employ-
ment, place of employment, or employee.”

We accept, however, the ruling of Ohio case law, that

At least with respect to “frequenters”, the Ohio appellate courts
have not regarded those statutes as exacting a duty substantially
different from that imposed generally by Ohio law upon an
owner of property towards an invitee.

Ford Motor Co. v. Tomlinson, 229 F.2d 873, 879 (6th Cir.), cert.
denied, 352 U.S. 826 (1956). See also Moore v. Denune & Pipic, Inc.,
26 Ohio St. 2d 125, 269 N.E. 2d 599 (1971).

14. Breitner v. Harris, d/b/a Harris Bldrs., et al. No. 77-3303

Four-Square were primarily responsible for erecting the scaf-
folding. Although Breitner minimized his experience with this
type of scaffolding, insisting that he usually worked on scaf-
folding which was affixed directly to the building rather than
on independent framing, there was no evidence to indicate
that the safety principles which show the danger inherent in
spanning a 12-foot distance with a single plank but 1% inches
thick are any different when scaffolding is attached to the
building than they are when the staffolding stands on its
own frame. There is no reason to believe that anyone in
the construction area would have more knowledge concern-
ing the safety of the operation than the plaintiff himself,
who was one of the class of persons charged with the re-
sponsibility of erecting the scaffolding. The plank itself
was without any inherent or latent defect. It was made of
material with which the plaintiff's trade commonly dealt. The
testimony is overwhelming that it was obviously negligent to
have erected the scaffolding in this manner. Both Richard
Harris and plaintiff's safety expert, Robert Jenkins, recognized
this. Harris stated:

Have you ever stood on a plank spanning an eight-foot
span of one width and expected that to suffice? If you
have, you know it does not take manuals and codes to
understand the situation. In other words, it bounds up
and down like a diving-board. So good common horse
sense tells you to double the planking and the width be-
fore you get on it.

Plaintiffs expert, Mr. Jenkins, testified as follows:

Q. Have you ever seen that type of scaffolding as I
have described to you that existed that day at the
“Sheraton-Westgate”; have you ever seen that exist?

A. Oh, yes.

Q. And you ordered it stopped?
A. Right.

Q. Why?

No. 77-3303 Breitner v. Harris, d/b/a Harris Bldrs., et al. 15

A. For the same reason. There is a long history of
carpenters injured from this very cause, the very cir-
cumstances.

George Henry, armed enly with a high school education
and experience as a carpenter, readily admitted that he had
ordered scaffolding tern down when he observed it was erected
with but a single piank:

Q. (Continuing) Did you ever observe any scaffold-
ing erected on this job with a single plank decking?

A. Yes, once or twice, and I had it torn down and
had it rebuilt properly.

Q. Did you ever instruct any workers to use double-
plank scaffolding?

A. Yes.

Q. Who?

A. All the carpenters.

Q. You instructed them?

A. Yes. We had one tore down about two weeks
before this accident and rebuilt properly with handrails.
This was on the front of the building.

Q. Who were the carpenters involved in that?

A. There was about six or seven there, including Mr.
Breitner.

John Nearing, the apprentice carpenter who was working
with Breitner on the job and who was on the scaffolding
when Breitner stepped on it, testified that there was ample
scaffolding equipment, planks and rails, available to do the
job. Nearing described the appearance of the plank:

Q. Can you recall when you were on the plank alone
whether it sagged?

A. It definitely sagged.

Q. Tell us, if you can, about how far it sagged from
level when you were on it alone?

16 Breitner v. Harris, d/b/a ‘iarris Bldrs., et al. No. 77-3303

A. I would imagine in the neighborhood of four
inches.

Nearing, who had been working on the project since sum-
mer or early fall, testified to the training he had had as an
apprentice: “I was informed I had responsibility as much as
anyone else to erect scaffolding properly and to use it prop-
erly for my own safety and others.” Although he had consid-
erably less experience than Breitner, he recognized the ob-
vious risk:

Q. ... Can you tell us, Mr. Nearing, from your
training, without reference to the code, how much weight
you would be able to expect a two-by-ten plank to carry
safely at a span of twelve feet?

A. I would guess in the neighborhood of 200 pounds.
That is just a guess, just from experience.

Q. Would that include or exclude any safety factor?

A. J would say it should include a safety factor.

Q. Including a safety factor, a plank could only carry
200 pounds?

A. Yeah, I would say so.

Finally, Breitner's own testimony, while naturally self-
serving, nevertheless makes clear his awareness of the con-
dition to which he was exposing himself. He testified that he
had earlier observed the scaffolding being erected by Four-
Square employees. He saw Nearing on the scaffold and his
only precaution was to ask him to step over to the right.

A plaintiff's own self-serving assertions may not be sufficient
in themselves to overcome a motion for directed verdict.
This is especially true where, as here, the plaintiff's own state-
ments admit of the truth of defendant’s assertions. See Pinci v.
United States, 316 U.S. 332 (1942).

In conclusion, therefore, we agree with the district judge
that the evidence so overwhelmingly indicated a deliberate
want of care for his own safety on the part of the plaintiff

No. 77-3303 Breitner v. Harris, d/b/a Harris Bldrs., et al. 17

that no reasonable person could conclude other than that
Breitner was guilty of contributory negligence which proxi-
mately resulted in his injury, and which bars his claim.

Affirmed.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2288%3A1. Public record. Not legal advice.