Opposition Brief — Consolidated Rail Corp. v. Wightman

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No. 99-950 BA ia lad ) ei

‘ Chittee

IN THE L

Supreme Court of the United States —

CONSOLIDATED RAIL CORPORATION,

Petitioner,

DARLENE M. WIGHTMAN, Individually and as Administratrix

of the Estate of MICHELLE L. WIGHTMAN, Deceased, and

MICHELLE WIGHTMAN CHARITABLE FOUNDATION,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE OuIO SUPREME COURT

nn ie an

RESPONDENTS’ BRIEF IN OPPOSITION

THOMAS J. MURRAY Harvey L. FRUTKIN

Counsel of Record KERIN L. KAMINSKI

Mary O’ NEILL KARE GIFFEN

Murray & Murray Co., L.P.A. CAVITCH, FAMILO, DURKIN

111 East Shoreline Drive & FRUTKIN

P.O. Box 19 14" Floor, East Ohio Building

Sandusky, OH 44871-0019 Cleveland, OH 44114

(419) 624-3000 (216) 621-7860

Attorneys for Respondents

157485 @] Counsel Press LLC

(800) 274-3321 + (800) 359-6859

TABLE OF CONTENTS

Page

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ee ae SN a. Ga hk ek coke Hakan cpa to Oi vi

gE ee ae ere I

A. The Train-Car Collision ...........s006. 2

. B. The Ohio Supreme Court’s Decision ...... 5

| See en SERIE oo oo 1 55:05 tx dase 5

Reasons for Denying the Writ ................. 7

I. The Punitive Award Below Fully Conforms

So ery ee 7

Il. No Conflict Exists Among The Lower Courts

Regarding The Proportionality Analysis Of

The Second Guidepost In BMW v. Gore.

REE USE EE ee ECON Oe tare eee 11

III. There Is No Due Process Issue Arising From

| The Trial Court’s Discretionary Evidentiary

. ha cha sala Vea keen raees ss 14

IV. Petitioner’s Recusal Motion Raised No

Federal Due Process Issue And Violated Ohio

Procedural And Substantive Law Governing

Ne ee IE bw kk ae bes oaks eee be hn 16

Conclusion

Contents

Petitioner Did Not Raise a Due Process

Issue Below Regarding the Campaign

Contributions to Justices Pfeifer and

SWOHD. i. ak ctndcakeiess ee ee

Petitioner’s Recusal Application Was

DEMO obevks adeecies Gree es

Conrail’s Motion Below Was

Procedurally Improper and Extra-Legal

im POOR oo occ Kees ee ek

Petitioner’s Representation of Its

Motion Below is Substantially

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Page

ili

TABLE OF CITED AUTHORITIES

Page

Cases:

Adams v. Robertson, 520 U.S. 83 (1997) ........ 18

Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813 (1986)

PIPER ITES RY Pee STS RP eR RET EE Coe eo EG ees. 18

BMW of N. Am., Inc. v. Gore, 517 U.S. 559 (1996)

LIS a gs ra hee a ia an ae 1, 5, 6, 7, 9, 10, 11, 13, 14

Crane v. Kentucky, 476 U.S. 683 (1986) ......... 16

Cuddy Mountain Concrete Inc. v. Citadel Constr.,

Inc., 121 Idaho 220, 824 P.2d 151 (Ct. App.

UN Oi hserg a h e e e fot AY 12

FTC v. Cement Inst., 333 U.S. 683 (1948) ....... 18

Huffman v. Hair Surgeon, Inc., 19 Ohio St. 3d 83,

ee ERMC LOEOD og ac coco icseccsscee 16

lannone vy. Frederic R. Harris, Inc., 941 F. Supp.

IG OD ns oc pos kh od k cb bcos 12

In re: Disqualification of Light, 36 Ohio St.3d 604,

ie MUM OU LEWOED 6 occ. caress scccceccs 20

In re Murchison, 349 U.S. 133 (1955) ........... 19

Murdock v. City of Memphis, 87 U.S. (20 Wall.) 590

NS SES oka a oak suy he va eeekenS 17, 18

Cited Authorities

Page

Reitz v. Howlett, 106 Ohio App. 3d 409, 666 N.E.2d

296 (9" Dist. Summit Cty. 1995) ............. 16

Tumey v. Ohio, 273 U.S. 510 (1927) ...... Penis 18

TXO Prod. Corp. v. Alliance Resources Corp., 509

Rs Ee EE cbs Baa RRR ees Renee 13

Walston v. Monumental Life Ins. Co., 129 Idaho 211,

S2d FZ es Fees Sa i a 12

Ward v. Village of Monroeville, 409 U.S. 57

CUD TES o ic65 RSS ER CEG a ck 19

Webb v. Webb, 451 U.S. 493 (1981) ............ 18

Zoppo v. Homestead Ins. Co., 71 Ohio St. 3d 552,

GOA Pia Oe Ce kk kw bo KEG eA |

Cited Authorities

Other Authorities:

Stuart Banner, Note, Disqualifying Elected Judges

From Cases Involving Campaign Contributors,

40 Stan. L. Rev. 449 (1988) . 006.660.6000 ae ck

Canon 3(G)(1) of the Ohio Code of Judicial

Ns eee Re ce ee

Canon 7 of the Ohio Code of Judicial Conduct ...

Mark Grannis, Note, Safeguarding the Litigant’s

Constitutional Right to a Fair and Impartial

Forum, 86 Mich. L. Rev. 382 (1989) .........

Jason Levien & Stacie L. Falka Cleaning Up Judicial

Elections, 2 Mich. L. & Pol’y Rev. 71 (1997)

o- 9 2 eB eC 2 4.8 O° Soe OC 08 8 0:94.48 OS S.'6 2.2 ee &S 6 Oe Se Se Boe

Page

TABLE OF APPENDICES

Appendix A — Opinton Of The Court Of Appeals

Of Ohio, Erie County Dated And Decided April

ED, TOD 655645556 eb nd end busccananeenian

Appendix B — Excerpts From Trial Transcript Of

The Common Pleas Court Of Erie County, Ohio

Dated May 20, 1996 ........... ccc ccccccees

Appendix C — Photograph Of Model Of Accident

OD oid cnecvasd eiwiekcsawdhut ate cdba thes

Appendix D — Cases In Which The Murray

& Murray Co., L.P.A. Was Lead Counsel For A

Party Or Amicus Curiae In The Ohio Supreme

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Appendix E — Excerpts From Trial Transcript Of

The Court Of Common Pleas, Erie County, Ohio

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Appendix F — Defendant’s Motion For Recusal And

Contsnnenne OF TRO TURE osc oc eke cscsndeses

Page

32a

36a

37a

39a

STATEMENT OF THE CASE

Petitioner, Consolidated Rail Corporation (“Conrail”),

claims it was denied due process by a punitive award

“imposed in a vacuum.” Some vacuum. More than ten

years ago, two young women died when a Conrail train struck

a car at a multi-track, mainline crossing in Sandusky,

Ohio after Conrail ignored an explicit police warning that a

train standing near the crossing created a danger of a train-

car collision. In 1990, a jury found punitive damages should

be assessed, and Ohio’s Sixth District Court of Appeals

upheld the verdict on the basis “there was clear and

convincing evidence ... [of] ... malice on the part of

Conrail.” Wightman v. Consol. Rail Corp. 94 Ohio App. 3d

389, 408, 640 N.E.2d 1160 (1994), Respondents’ Appendix

(“Resp. App.”) 29a. The Ohio Supreme Court declined to

hear the matter.’

A second jury, in 1996, assessed punitives at

$25,000,000. Conrail sought a remittitur, claiming

constitutional excessiveness. The trial court carefully

analyzed the evidence in light of BMW of N. Am., Inc. v.

Gore, 517 U.S. 559 (1996) and concluded the verdict was

not excessive. Nevertheless, it granted Conrail a $10,000,000

remittitur and relief from interest on the judgment.

Petitioner’s Appendix (“Pet. App.”) 64a.

1. Ohio law at the time of the first trial required the jury to

determine whether punitive damages should be assessed, after which

the judge was to determine the amount. The appellate court found

that the trial court, by failing to award punitive damages after the

jury’s findings, had not complied with the Ohio statute. Resp. App.

29a. After remand, the Ohio Supreme Court ruled litigants are

constitutionally entitled to a jury trial on punitive damages. Zoppo

v. Homestead Ins. Co., 71 Ohio St. 3d 552, 644 N.E.2d 397 (1994).

Therefore, the amount of punitives in Wightman became a jury issue.

After the appellate court rejected appeals by both parties,

the Ohio Supreme Court heard the Wightmans’ appeal and

Conrail’s cross-appeal. It upheld the appellate court’s finding

that the remitted punitive award was not constitutionally

excessive and also affirmed the lower court’s decision on

evidentiary issues raised by Conrail’s cross-appeal. The court

reversed the grant of interest relief to Conrail on statutory

grounds. Pet. App. 8a-12a.

Two months after oral arguments in the Ohio Supreme

Court, Conrail sought to recuse Justices Pfeifer and Sweeney

under Canon 3(G)(1) of the Ohio Code of Judicial Conduct

on the ground the “appearance of impropriety” had been

created because the law firm representing the Wightmans,

and relatives of the firm’s partners, had made admittedly

lawful contributions to the 1998 reelection campaigns of

these justices. Pet. App. 76a. This motion raised no federal

due process issue, was procedurally improper, and was

contrary to Ohio law requiring recusal motions to be filed

on a timely basis.

On December 6, 1999, Conrail filed its Petition for a

Writ in this Court. Because Petitioner has failed to mention

significant parts of the record, correction and clarification

are necessary.

A. The Train-Car Collision

On a February evening in 1989, a westbound Conrail

train stopped for minor repairs on a double track mainline

about 200 feet east of a grade crossing in Sandusky, Ohio,

creating a severe obstruction to the ability of southbound

motorists to see past the standing train. The train crew knew:

BAT OA cat GEN TL hs

1) the stopped train blocked the ability of

southbound motorists to see westbound trains

approaching the crossing;

2) high speed, westbound trains were due;

3) heavy Saturday night traffic was proceeding

over the crossing; and

4) the gates and lights could not positively signal

the approach of another train because they had

been disabled by the stopped train from doing

sO.

Pet. App. 59a.

The conductor immediately recognized the danger but,

he explained, rather than implement available measures to

prevent a crash, his “only option” under Conrail’s operating

procedures was to have the crew make the minor repairs

necessary to get the train moving again. About 20 minutes

prior to the collision, a police officer arrived, saw there was

a possibility of a collision, and immediately requested his

dispatcher to notify the railroad. Minutes later, the officer

was advised by radio Conrail had been notified of the danger,

and he left. Conrail ignored the warning. Although the train

was stopped for about an hour, the railroad, following a

longstanding operating practice, took no measures to prevent

a collision. Pet. App. 5la, 60a-61a.

Fifteen minutes after the police warning, Michelle

Wightman, operating her mother’s 1985 Ford, approached

from the north in a stream of southbound traffic. As she drove

onto the crossing at about 5 mph and attempted to see past

the standing train, the obstruction was so severe the car

was already in harm’s way when a 60 mph freight train

suddenly emerged. According to witnesses, the occupants

of the car “didn’t have a chance.”? Pet. App. 51a and

Resp. App. 32a-34a.

The Wightmans showed how a train standing near a

mainline crossing, combined with a system disabled from

signaling the approach of a second train, creates a great

danger of a crash — a fact known for 30 years in the railroad

industry. According to a retired railroad engineer with 43

years experience, about 99% of drivers proceed over the

crossing under these conditions. The engineer of the stopped

train, who had a clear view of the crossing throughout the

period prior to the crash, did not observe a single car turn

around. The Wightmans also showed how, without slowing

railroad operations, various measures could easily have

eliminated the possibility of a collision. Although Conrail’s

dispatcher and the engineer had continuing radio

communications, and both knew high speed trains were due,

neither did anything to protect against a collision. According

to Dr. William Berg, a civil engineer with a special expertise

in grade crossing safety, many collisions happen under

conditions “substantially similar” to those at the Sandusky

crossing. Pet. App. 39a.

Notwithstanding the six-year lapse between trials, the

conductor of the stopped train testified in the second trial

that he had not been instructed by Conrail in the interval to

do anything differently, if he encountered the same situation.

One of Conrail’s middle managers conceded that

2. Resp. App. 36a depicts a model used by witnesses to show

the position of trains and the Wightman vehicle moments before the

collision.

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unscheduled stops for minor repairs, like that near the

Sandusky crossing, is “the type of thing . . . [that] . . could

occur at so many locations” in Conrail’s system. Pet. App.

59a-63a; Resp. App. 35a. As in the first trial, Conrail offered

no explanation for ignoring an explicit police warning at least

15 minutes prior to the collision.

B. The Ohio Supreme Court’s Decision

After meticulously applying the due process framework

in BMW vy. Gore, the court concluded the remitted punitive

award of $15,000,000 was not excessive and “did not violate

Conrail’s due process rights.” Wightman v. Consol. Rail

Corp., 86 Ohio St. 3d at 439, 715 N.E.2d 546 (1999),

Pet. App. 19a. In view of Petitioner’s challenge to the

impartiality of Justices Pfeifer and Sweeney, it is important

to note it was the Wightmans who first appealed the rulings

of Ohio’s Sixth District Court of Appeals and that Justices

Pfeifer and Sweeney ruled against them on the main issue

raised by their appeal, namely, whether it was an abuse of

discretion by the trial court to grant a $10,000,000 remittitur,

without a finding of excessiveness. Since two of the justices

agreed with the Wightmans on this point, had Justices Pfeifer

and Sweeney not voted as they did, Conrail might well face

a $25,000,000 punitive award, plus interest — a liability

nearly double that under the rulings supported by Justices

Pfeifer and Sweeney as part of the majority. On this score, it

seems Conrail will not take “yes” for an answer.

SUMMARY OF ARGUMENT

Petitioner has plainly failed to present any proper basis

for a writ. First, the decisions below reflect a deep respect

for the notion of due process expressed in BMW v. Gore. At

each stage, the Ohio courts reviewed the record with arduous

attention to the due process considerations embodied in

BMW. The decision of the Ohio Supreme Court, in particular,

accorded to Conrail precisely the kind of reasoned and

balanced analysis required by the three guideposts in BMW.

Although three justices of the Ohio Supreme Court dissented

in part with respect to some rulings below, none did so on

the basis the remitted punitive award was excessive under

the guidelines set forth in BMW. The upshot is, one trial

judge, three appellate judges, and seven justices of the Ohio

Supreme Court concluded the punitive award was not

unconstitutionally excessive.’

Contrary to petitioner’s assertion, there is no conflict

among the lower courts as to the application of the

proportionality analysis in BMW. Nor does the record support

Conrail’s attempt to bootstrap an ordinary discretionary

evidentiary ruling of a state court into a deprivation of due

process.

Finally, Conrail’s attempt to use admittedly lawful

campaign contributions to raise a due process issue for the

first time in this Court disregards this Court’s jurisprudence

regarding when a federal question may properly be raised

here.

3. One of the justices believed the award was based on

wrongful death as well as property damage, and thus was excessive

under Ohio law.

aaa

REASONS FOR DENYING THE WRIT

1. THE PUNITIVE AWARD BELOW FULLY

CONFORMS WITH BMW »v. GORE

The Ohio Supreme Court noted that the BMW court

described the degree of reprehensibility of defendant’s

conduct as “[p]erhaps the most important indicium of the

reasonableness of a punitive damages award .. . [and]...

that BMW’s conduct evinced no indifference to or reckless

disregard for the health and safety of others.” 517 U.S. at

575, 576. In its constitutional analysis, the Ohio Supreme

Court applied this criterion of reasonableness as follows:

It is with this guidepost, the most important one,

that this case distinguishes itself the most from

BMW. Ineffective gates at a railroad crossing are

of a completely different character than a painted-

Over scratch on a luxury automobile. Literally and

figuratively, we are dealing with the difference

between a scratch and a cataclysm — the

difference between a practice that might affect the

value of an automobile by ten percent, and a

practice that could result in massive property

damage, physical injuries, and untold

psychological pain. Conrail evinced a disregard

of the danger it posed to the health and safety of

motorists.

In this case, Conrail employees did nothing to

warn drivers of oncoming trains, despite the fact

that they saw vehicles crossing the track by

driving around the gates. Even after a phone call

from police, Conrail did not take preventative

measures to avert an accident. According to the

trial judge, this tragic case has done little to

persuade Conrail to change, citing Conrail’s

“corporate attitude which clearly fails to recognize

that the extremely dangerous practice which

produced the catastrophic collision needs to be

changed.”

We find that Conrail’s conduct reaches the level

of reprehensibility sufficient to warrant the

substantial punitive damages award the jury

imposed in this case.

Pet. App. 16a.

It is significant that the trial court, in reviewing the

record, made the following statement regarding Conrail’s

attitude toward public safety at its grade crossings:

The Court ... feels compelled, as a matter of

public safety, to do everything in its power to

insure .. . Conrail promptly changes the practice

which produced this unnecessary tragedy. After

much reflection, the Court has concluded that the

most effective way to deter Conrail from

continuing this practice is to limit the jury’s

verdict to an amount which will sufficiently

punish Conrail and create a positive inducement

to change its practices, rather than continue to

challenge the findings of the earlier jury and the

Court of Appeals.

Pet. App. 64a. The foregoing statement is a pointed reference

to the fact that Conrail did nothing during the six-year

interval between trials to correct the operating practice behind

this train/car collision. It is precisely this kind of conscious

indifference for the rights and safety of others which this

Court, in BMW, made the touchstone for determining

reasonableness in cases where, as here, the defendant’s

conduct threatens the rights and safety of human beings.

As to the second indicium, the ratio of punitive damages

to the actual harm inflicted on the plaintiff, the Court relied

directly on the BMW analysis. The court pointed out that

Ohio law, consistent with BMW, “has consistently rejected

the notion of a bright-line mathematical formula for the

computation of the reasonableness of punitive damage

awards.” It, therefore, concluded: “We see the ratio between

compensatory and punitive damages as less relevant here

because of the egregiousness of the act.” Pet. App. 17a.

Finally, the court analyzes the third BMW indicium,

namely, civil or criminal penalties that could be imposed

for comparable misconduct:

Conrail claims to have violated no Ohio statutes

on the night of the accident. Conrail argues that

even if it had not fully complied with all laws,

the maximum federal penalty for the willful

failure to comply with an order to remedy a

violation of signal-system safety regulations that

creates an imminent danger of death or injury is

$22,000 per violation. Section 209.409, Title 49,

C.F.R.

But the BMW case and its civil penalties are a

world away from this case. BMW requires that

the penalties imposed be for comparable

misconduct. In BMW, the $2,000 fine actually

applied to the specific conduct of the defendant

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that was at issue. The $22,000 fine Conrail refers

to does not apply to the specific conduct involved

in this case. The $22,000 fine applies to the failure

to comply with an order to remedy a violation of

signal-system safety regulations. An order has to

have been made and disregarded by the railroad

company for the fine to be imposed. It is not a

fine for causing a death.

Pet. App.18a. The court commented that Conrail’s conduct

here was so egregious it could constitute involuntary

manslaughter under Ohio’s criminal code and that “the

applicable criminal and civil penalties available were

comparable to the punitive damages award.” Pet. App. 19a.

On the basis of the constitutional framework provided

by BMW vy. Gore, the Ohio Supreme Court concluded:

In considering the three guideposts set forth by

the court in BMW, we find that Conrail had fair

notice of the conduct that would subject it to

punishment as well as the severity of the possible

punishment. The award in this case was not

grossly excessive and did not violate Conrail’s

due process rights.

Pet. App. 19a.

II. NO CONFLICT EXISTS AMONG THE LOWER

COURTS REGARDING THE PROPORTION-

ALITY ANALYSIS OF THE SECOND

GUIDEPOST IN BMW »v. GORE.

In BMW v. Gore, one of the three “guideposts”

for ascertaining whether the size of a punitive award

is unconstitutionally excessive is whether there is a

reasonable relationship between punitives and the harm

caused by the defendant’s conduct. /d. at 581. Petitioner

states that “the lower courts are in conflict on how to apply

the second guidepost” and argues the states will continue to

be “perplexed” and “confounded” by this issue until this

Court intervenes to “provide much-needed guidance.”

Petition at 2, 10, 20. The claimed conflict Conrail points to

is an alleged split among the lower courts as to whether, in

assessing proportionality between the punitive and

compensatory awards, a court may consider harm for which

the state does not permit a recovery of punitive damages.

Specifically, Conrail contends the Wightman court

considered the wrongful death of Michelle Wightman, in

addition to the property damage, in assessing the extent of

the potential harm engendered by Conrail’s dangerous

operating practices. Conrail urges this Court to resolve this

“conflict” by rejecting the approach of those lower courts,

with whom Ohio’s high court is allegedly arrayed, that

evaluate punitive damages by considering “all of the damages

awarded to a plaintiff, including amounts awarded for claims

that would not themselves be subject to punitive damages.”

Petition at 23. However, as we will show: (1) there is no

conflict in interpretation; (2) the Ohio Supreme Court strictly

complied with the teachings of BMW: and (3) the punitives

were not unconstitutionally excessive.

Conrail cites Walston v. Monumental Life Ins. Co., 129

Idaho 211, 923 P.2d 456 (1996), to support its assertion there

is a conflict as to an important federal question. Conrail

suggests the Idaho and Ohio Supreme Courts are the only

State courts of last resort that incorporate into their

proportionality analysis damages that do not support a

punitive award under state law.* However, petitioner has

misunderstood Idaho law. Conrail relies on Walston for the

proposition that Idaho takes into consideration the harm

caused by a breach of contract in assessing the excessiveness

of a punitive award, with the suggestion a breach of contract

will not support an award of punitives. Idaho, however, is

one of the states that actually permits an award of punitives

for breach of contract, at least where the breach is malicious

and conducted with total disregard for the interests of the

other party. See, e.g., Cuddy Mountain Concrete Inc. vy.

Citadel Constr., Inc., 121 Idaho 220, 824 P.2d 151 (Ct. App.

1992). As such, Idaho falls into line with the teachings of

the other cases cited by Conrail.

As to Ohio, it is clear, contrary to Conrail’s assertion,

the Wightman court did not factor wrongful death into its

proportionality analysis:

The injury here was catastrophic and could have

been financially more so. We are not persuaded

that if Michelle Wightman had been driving a

4. Conrail also cites Jannone v. Frederic R. Harris, Inc., 941

F. Supp. 403 (S.D.N.Y. 1996). A review of that decision, moreover,

does not disclose that the federal district court considered conduct

for which no punitives could be awarded in its assessment of

proportionality. In any event, only conflicts between or among the

federal circuit courts of appeal or among the states’ highest courts

should merit a writ.

$40,000 BMW that would make a more acceptable

ratio. An expensive car does not make the award

more legitimate. The award stands on its own.

This case offers one of those particular instances

where a particularly egregious act has resulted in

a small amount of economic damages.

Pet. App. 17a. This statement reflects a keen awareness of

the difference between Wightman’s economic damages and

the damages based on her wrongful death claim. Accordingly,

Petitioner fails to establish a conflict as to how this Court’s

proportionality guidepost is being interpreted by the lower

courts.

Conrail also asserts, regardless of any conflict, the

punitives in Wightman violate BMW criteria because the ratio

of the punitive damages awarded is disproportionate to the

actual damages. Petitioner again misstates the law. This

Court has made clear the proper ratio analysis is to ascertain

“whether there is a reasonable relationship between the

punitive damages award and the harm likely to result from

the defendant’s conduct as well as the harm that actually

has occurred.” BMW, supra, at 581, citing TXO Prod. Corp.

v. Alliance Resources Corp., 509 U.S. 443, 460 (1993).

(Emphasis in original.) Thus, where the potential for great

harm is substantial, “even low compensatory damages may

support a higher ratio than high compensatory damages.”

BMW at 831. In BMW, unlike the instant case, substantial

potential harm was not an issue. As this Court observed,

“there is no suggestion that Gore or any other BMW

purchaser was threatened with additional potential harm.”

Id. at 830. Pivotal to that analysis was the fact the harm

engendered by BMW’s corporate decision to repaint luxury

automobiles was, ipso facto, limited to a decrease in the

economic value of the car; no additional harm was threatened.

Conrail also suggests the Court revert to the mindless

application of a mathematical litmus test to determine the

constitutionality of a punitive award by comparing the ratios

of punitive to actual damages in various cases. (“[T]he

punitive damages award in this case cannot stand, as a ratio

of 6,250 to 1 is drastically greater than the ratio found

constitutionally deficient in Gore.” Petition at 24.) Conrail

neglects to mention this is an approach “consistently

rejected” by this Court. BMW at 582. As the Ohio Supreme

Court points out, the harmful nature of Conrail’s conduct

would not change if, instead of having destroyed a used Ford

Tempo, it had demolished a BMW worth $40,000. Pet. App.

12a, 17a. Presumably, the ratio in the latter instance would

be more acceptable to Conrail, being 325 to 1. Thus, as this

Court did in BMW, the Ohio court recognized the absurdity

of using an arbitrary ratio as determinative in cases where,

as here, the defendant’s conduct consciously disregards the

lives and safety of people.

lil. THERE IS NO DUE PROCESS ISSUE ARISING

FROM THE TRIAL COURT’S DISCRETIONARY

EVIDENTIARY RULINGS.

Conrail claims it was denied a fair tria] because

of evidentiary rulings. According to Conrail, the trial court

prevented it from presenting expert testimony regarding the

facts and circumstances Surrounding the collision and

from showing that Michelle Wightman “had consumed

several alcoholic beverages on the night in question.” Petition

at 4, 18. The truth is Conrail had the opportunity to present

more evidence in the second trial than it had offered in the

first, had it chosen to do so. Although the railroad did not

designate an expert reconstructionist in the first trial, it did

so in the second and the record is crystal clear the only reason

Conrail did not call its designated reconstructionist to testify

is it chose not to do so.5

Furthermore, Conrail’s assertion in this court that

Michelle Wightman “consumed several alcoholic beverages”

is pure invention. The only evidence regarding alcohol

consumption was that a witness had seen Michelle taking

two sips of wine cooler and that she had a blood alcohol

5. During the trial, this occurred:

Wightmans’ counsel: . . . you’re going to bring in a

reconstructionist. Yesterday you introduced the fact, you

suggested that you could see the headlights.

Conrail’s counsel: I’m not — who said I’m bringing

in a reconstructionist?

Wightmans’ counsel: You said in your opening

Statement that you could see the headlight and you’re

suggesting for something like twelve seconds . .

Conrail’s counsel: Am | going to be allowed to bring

in that person here to show that Judge?

Wightmans’ counsel: 1 would think if he can show that

she could see the headlight for twelve seconds, of

course, he should be able to bring . . .

The Court: Sure. He didn’t have a problem with that.

So I will let you do that.

Resp. App. 34a-35a.

level of one-third the legal limit. Resp. App. 39a-45a. The

Ohio Supreme Court upheld the appellate court’s ruling that

the trial court had not abused its discretion by excluding

evidence “showing Michelle Wightman had consumed a

small amount of alcohol prior to the conclusion .. .”

Pet. App. 9a.

Under Ohio law, a trial court’s exclusion of evidence

can be reversed only upon a showing of a clear abuse of

discretion that materially prejudiced the objecting party.

Huffman v. Hair Surgeon, Inc., 19 Ohio St. 3d 83, 87, 482

N.E.2d 1248 (1985); Reitz v. Howlett, 106 Ohio App.

3d 409, 666 N.E.2d 296 (9" Dist. Summit Cty. 1995).

Conrail’s arguments regarding the exclusion of evidence,

therefore, are but an attempt to bootstrap proper discretionary

rulings into errors of constitutional dimensions. These

evidentiary rulings, moreover, are different in kind from

those described in the cases cited by Conrail where criminal

defendants were precluded from introducing critical

exculpatory evidence due to a mechanistic application of the

State’s evidentiary rules. Indeed, the cases cited by Conrail

underscore this Court’s “reluctance to impose constitutional

constraints on ordinary evidentiary rulings by state trial

courts.” Crane v. Kentucky, 476 U.S. 683 (1986).

IV. PETITIONER’S RECUSAL MOTION RAISED NO

FEDERAL DUE PROCESS ISSUE AND

VIOLATED OHIO PROCEDURAL AND

SUBSTANTIVE LAW GOVERNING SUCH A

MOTION

Petitioner invites this Court to determine the “fairness

of Ohio’s system of electing judges and financing their

campaigns” because of contributions to the reelection

campaigns of Justices Pfeifer and Sweeney by members of

the firm representing Darlene Wightman and family members

of its partners which, says Conrail, compromised its due

process right to an impartial appellate review. This assertion

is devoid of merit on several grounds.°

A. Petitioner Did Not Raise a Due Process Issue Below

Regarding the Campaign Contributions to Justices

Pfeifer and Sweeney.

Petitioner for the first time raises a federal question here.

Specifically, it claims an infringement of due process

“because large financial contributions to a judge from a

lawyer with a case pending before the judge certainly create

the appearance of a quid pro quo.” Id. at 12-13. Conrail’s

motion below, however, relied solely upon alleged violations

of Ohio Code of Judicial Conduct which, as this Court has

made clear, cannot give rise to a matter reviewable in this

Court. Murdock v. City of Memphis, 87 U.S. (20 Wall.) 590

6. Prior to the second trial and while the issue of a litigant’s

constitutional right to a trial by jury on punitives was pending in

the Ohio Supreme Court, Conrail! requested J udge Ann B. Maschari,

who presided at the first trial, to apply the very statute whose

constitutionality was under review, and to set the amount of damages

herself. When she refused this request, Conrail filed a motion asking

Judge Maschari to recuse herself from further participation in the

case, which she did. Resp. App. 46a-47a. The case was assigned to

the Honorable Joseph Cirigliano who, as noted above, reduced the

award by $10,000,000 and granted Conrail interest relief. Conrail’s

recusal motion, therefore, challenged the impartiality of two justices

who had voted to uphold the remittitur granted Conrail by Judge

Cirigliano. In short, this Petition is about Conrail’s unhappiness with

the size of an already remitted punitive award that might well have

been much larger had Justices Pfeifer and Sweeney agreed with the

Wightmans’ contention the remittitur was improper under Ohio law.

(1875). Petitioner has thus failed to meet its burden of

showing it properly presented a federal claim to the Ohio

Supreme Court and, therefore, there is no basis for a writ.

As this Court observed in Adams y. Robertson, 520 U.S. 83

(1997), “it would be unseemly to our dual system of

government to disturb the finality of state judgments on a

federal ground that the state court did not have the occasion

to consider.” Jd. at 210, citing Webb y. Webb, 451 U.S. 493,

500 (1981).

Moreover, this Court has clearly stated most matters

relating to judicial qualification do not rise to a constitutional

level. The balancing of such factors as kinship, personal bias,

State policy, and remoteness of interest are generally left to

legislative discretion. FTC y. Cement Inst., 333 U.S. 683,

702 (1948); Tumey v. Ohio, 273 U.S. 510, 523 (1927). Indeed,

even where bias or prejudice exists, and even where there is

a failure to adhere to the local code of judicial conduct, such

infirmities alone do not constitute a violation of due process.

Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 821 (1986).

Moreover, in an effort to force this case into a

constitutional framework, Conrail focuses on language in

various opinions holding that a litigant need not show a

judge’s decision was actually influenced by a personal

interest in the case. Conrail, however, ignores the required

predicate before issues of bias arise; in each of the cases

cited, there was the requisite direct interest in the outcome.

See, e.g., Lavoie, supra (The judge’s opinion had the clear

and immediate effect of enhancing both the legal status and

settlement value of his own case); Tumey, supra (The mayor

who presided over the case was personally and financially

interested in the decision, for under state law at the time, he

would receive no fee unless he found the defendant guilty);

Ward v. Village of Monroeville, 409 U.S. 57, 60 (1972)

(The fees produced from the mayor’s court accounted for a

substantial portion of municipal revenues); Jn re Murchison,

349 U.S. 133 (1955) (A judge serving as a “one-man grand

jury” in investigating a crime cannot later preside over a

contempt hearing for actions that took place during the grand

jury proceedings). Tellingly, Conrail cites no case where a

judge was disqualified for the receipt of lawful campaign

contributions.

As noted by the authorities cited in Conrail’s brief, the

states have addressed the appropriate balance to be struck

between the interests of full participation by attorneys in the

election process with the need to ensure judges are insulated

from potential for bias. Most commentators, including those

cited by Conrail, suggest striking that balance by limiting

the amount and specifying the timing of financial

contributions. See, e.g., Stuart Banner, Note, Disqualifying

Elected Judges From Cases Involving Campaign

Contributors, 40 Stan. L. Rev. 449 (1988); Mark Grannis,

Note, Safeguarding the Litigant’s Constitutional Right toa

Fair and Impartial Forum, 86 Mich. L. Rev. 382 (1989);

Jason Levien & Stacie L. Falka Cleaning Up Judicial

Elections, 2 Mich. L. & Pol’y Rev. 71 (1997). This is exactly

the balance struck by Ohio in its adoption of Canon 7 of the

Ohio Judicial Code. Ohio has enacted limitations both upon

the amount of contributions to election campaigns of

Supreme Court justices and the period within which those

donations may be solicited. These limitations, among the

most restrictive in the nation, were strictly complied with

by Justices Pfeifer and Sweeney.

B. Petitioner’s Recusal Application Was Dilatory

Under Ohio law, a party who fails to act promptly in

seeking to recuse a judge will be deemed to have waived his

or her objections, except in “extraordinary circumstances.”

In re: Disqualification of Light, 36 Ohio St.3d 604, 522

N.E.2d 458 (1988). Petitioner attempts to gloss over this

requirement by asserting “after the oral argument, Conrail

obtained the final post-election campaign finance reports of

two justices of the Supreme Court ... both of whom had

been reelected just prior to the November, 1998 argument,”

Petition at 7, 8. This implies the campaign finance reports

were not public knowledge, until after oral arguments. The

truth, however, is all Murray contributions were first publicly

reported on April 23, 1998, one month prior to the date on

which Conrail filed its first brief on the merits and nearly

seven months prior to oral arguments. Petitioner offers no

explanation for this delay or, for that matter, how it manages

to find an appearance of impartiality by two justices who

affirmed a $10,000,000 remittitur to a verdict the trial court

found was not constitutionally excessive. Thus, because

Conrail has failed to establish that its federal claim was

presented to the Ohio court in a timely and proper manner,

its application for a writ should be denied.

C. Conrail’s Motion Below Was Procedurally Improper

and Extra-Legal in Nature.

Conrail’s motion below did more than seek the recusal

of two justices. Under the heading “background,” Petitioner

sets forth what amounts to a “Statement of the Case” from

Conrail’s point of view, including numerous factual

contentions of no relevance to the subject matter of the

motion. Such a filing, nearly two months after presentation

of oral arguments, was entirely improper and raises the

inference Conrail was using this motion to influence the

Court on the merits. This impropriety rendered the motion

extra-legal and, therefore, it is unfair to criticize the Ohio

Supreme Court for not formally responding to it. This can

fairly be seen as an abuse of the judicial process that was, in

a fundamental sense, an attack on the very procedures that

undergird our notion of due process.

D. Petitioner’s Representation of Its Motion Below is

Substantially Misleading

It is one thing to lay out facts, quite another to use

characterizations that have no factual basis. The petition

repeatedly uses terms such as “questionable contributions,”

“ethical questions,” and “issue of impropriety” to insinuate

something for which there is simply no basis. These invidious

characterizations are used to support an argument regarding

Canon 7 of the Ohio Code of Judicial Conduct for which

there is no authority, namely, the notion that contributions

by different individuals can be aggregated to create both an

ethical violation and due process issue. The Murray firm

consists of nine partners, whose families span three

generations and consist of nearly 100 people. Because of

the nature of this firm’s practice, there has probably not been

a time in the past 15 years when the Murray firm has not had

at least one major case pending in the Ohio Supreme Court.’

Throughout that period, the law firm has openly exercised

7. Resp. App. 37a is a list of cases, most of which are published

in the 2000 edition of Martindale-Hubbell, in which the Murray

firm was either lead counsel for a litigant or amicus curiae in the

Ohio Supreme Court in the past two decades. This list does not

include many more cases in which the Murray firm petitioned the

Ohio Supreme Court for a discretionary review.

its right to support judicial candidates of its choice, within

the bounds of Ohio’s campaign rules. There has never been

the slightest suggestion of any impropriety against the firm

or its members. Conrail’s position, therefore, necessarily

leads to the conclusion, unless all firms are ethically bound

to impose limitations on the number of partners who may

Support the candidate of his or her choice, the Murray

partners, not to mention family members, are precluded from

contributing solely by virtue of their relation by blood — a

proposition tantamount to a Bill of Attainder.

Conrail also implies a connection between the campaign

contributions and the Murray firm’s “stake” in the outcome

of the case. This, says Petitioner, makes its right to a fair

trial “more acute” because the plaintiff's law firm has

“millions of dollars in fees at stake in the outcome of a

pending appeal.” Petition at 13. This is a highly misleading

assertion. For one thing, Darlene Wightman has assigned

fifty percent of the punitive damages recovered to the

Wightman Charitable Foundation. The Murray firm,

therefore, will receive much less than one-third of the

punitive award for ten years of work to hold Conrail

accountable for conduct shown to be consciously disregardful

of the lives and safety of people for decades.

Conrail also asserts the Ohio Supreme Court “for the

first time ruled that post-judgment interest could run on

punitive damages, thereby increasing the already excessive

penalty by approximately one-third, or by more than

$5,000,000.” Petition at 15. This implies a connection

between the post-judgment interest ruling and the

contributions. Conrail, however, fails to mention that this

ruling was based upon unambiguous language in Ohio’s post-

judgment interest statute, a reading that was concurred in by

all seven justices.

CONCLUSION

For the reasons set forth, the Petition should be denied.

Respectfully submitted,

THOMAS J. MuRRAY

Counsel of Record

Mary O’NEILL

Murray & Murray Co., L.P.A.

111 East Shoreline Drive

P.O. Box 19

Sandusky, OH 44871-0019

(419) 624-3000

HARVEY L. FRUTKIN

KERIN L. KAMINSKI

KAREN GIFFEN

CAvitcH, FAMILO, DurRKIN

& FRUTKIN

14" Floor, East Ohio Building

Cleveland, OH 44114

(216) 621-7860

Attorneys for Respondents

APPENDIX

APPENDIX A — OPINION OF THE COURT OF

APPEALS OF OHIO, ERIE COUNTY DATED AND

DECIDED APRIL 15, 1994

WIGHTMAN, Admr., et al.,

Appellees and Cross-Appellants,

CONSOLIDATED RAIL CORPORATION et al.,

Appellants and Cross-Appellees.*

Court of Appeals of Ohio,

Erie County.

No. E-92-75.

Decided April 15, 1994.

x * *

AsBoop, Presiding Judge.

This is an appeal and cross-appeal from a judgment of

the Erie County Court of Common Pleas which, following a

jury trial, awarded $1,000,000, the amount of the jury verdict,

in compensatory damages to the estate of Michelle

Wightman.

* Reporter’s Note: A discretionary appeal to the Supreme

Court of Ohio was not allowed in (1994), 70 Ohio St.3d 1442, 638

N.E.2d 1044.

Appendix A

Defendant-appellant Consolidated Rail Corporation

(“CRC”) sets forth the following assignments of error:

“I. The trial court erred in failing to direct a verdict in

appellant’s favor at the close of all the evidence, finding the

negligence of plaintiff's decedent was the sole proximate

cause of the accident at issue.

“II. The trial court erred and denied appellant a fair trial

as a matter of law in connection with the jury charge as

follows:

“1. In refusing to instruct and submit appellant’s

interrogatory to the jury regarding the willful and wanton

misconduct of the decedent and in giving a punitive damage

charge as to appellant;

“2. In failing to instruct and submit appellant’s

interrogatory to the jury concerning the intervening and

superceding acts of the City of Sandusky Police Department;

“3. By instructing the jury in a contradictory and

confusing manner and in providing erroneous instructions

of law;

“4. By failing to submit required verdict forms to the

jury; and

**S_ In other instructional errors manifested in the record.

“III. The trial court erred and denied appellant a fair

trial in the admission of evidence as follows:

pal dt ede ve RW astta:’ Ase

ans . 5

Appendix A

“1. By admitting over objection expert’s opinions

inadmissible under Rules of Evidence 701 through 705;

“2. By admitting over objection testimony of plaintiff s

witnesses on matters of law and on facts not of record;

“3. In permitting plaintiff's witnesses to testify over

objection as to the private, inter-company rule of defendant.

“IV. Other errors at law occurring at time [of] trial and

brought to the attention of the trial court by the appellant.”

Plaintiffs-appellees, Darlene M. Wightman, administrator

of the estate of Michelle L. Wightman, deceased, and Darlene

M. Wightman, individually, set forth the following assignments

of error on cross-appeal:

“I. The trial court erred by refusing to submit the issue

of punitive damages to the jury on Darlene Wightman’s

property damage claim.

“Il. The trial court erred in refusing to award punitive

damages, attorneys fees, and costs to Darlene Wightman.

“Ill. The trial court erred in refusing to order Conrail to

pay interest at the statutory rate on one million dollars from

the date of the jury’s verdict or, in the alternative, for each

day entry of judgment has been delayed as a result of

defendants’ motion to disqualify.”

The facts that are relevant to the issues raised on appeal

are as follows. On February 19, 1989, at approximately 12:05

Appendix A

a.m., the decedent, Michelle Wightman, was driving her

mother’s 1985 Ford southwest on Remington Avenue

approaching a railroad crossing in the city of Sandusky. A

short distance to the east of the crossing, a train owned and

operated by CRC was stopped for repairs on the tracks closest

to Michelle. When she got to the crossing, the gates were

down and the red lights were flashing. Michelle proceeded

to drive around the gates and began to cross the railroad

tracks when another train owned by CRC that was traveling

westbound on a second set of tracks appeared from behind

the stopped train and struck Michelle’s car, killing her and

her passenger instantly.

On September 12, 1989, Michelle’s mother, appellee

Darlene Wightman, acting both in her capacity as

administrator of Michelle’s estate and individually, brought

suit against CRC and the train’s engineer, appellant Louis

Nelson. The complaint set forth two causes of action. The

first cause of action contained four counts. Count one set

forth a claim for wrongful death which alleged: (1) that CRC

was negligent in permitting the stopped train to stand in such

close proximity to the crossing and obstruct the ability of

motorists to observe a second train approaching without

taking reasonable precautions to protect motorists; (2) that

CRC was negligent in operating a train at a speed which

created a foreseeable risk of injury or death; (3) that CRC

was negligent in failing to train and advise its crews as to

what reasonable measures should be taken in such

circumstances to protect motorists; and (4) that Nelson was

negligent in failing to reduce the speed of his train as he

approached the crossing, in failing to notify the crew of the

disabled train that he was approaching the crossing at such a

OO ets aaatt,

Appendix A

high rate of speed and in failing to give adequate warning to

motorists that his train was approaching the crossing.’

Count two of the first cause of action set forth a

survivorship claim.’ Count three of the first cause of action

set forth a claim for funeral and burial expenses.’

In count four of the first cause of action, appellees

alleged: (1) that CRC had habitually permitted similar

circumstances to exist at various points in its system which

has resulted in numerous deaths and injuries; (2) that CRC

failed to take reasonable steps to protect motorists at the

crossing, despite the fact that it had actual knowledge for

approximately one hour prior to the decedent’s death, that a

situation existed in which harm was certain or substantially

certain to occur; and (3) that these acts and omissions

constitute an intentional, wanton and reckless disregard for

human life and the safety of the public, which conduct bars

appellants from avoiding liability in this action because of

any alleged acts or omissions on the part of the decedent.

For their first cause of action appellees requested a minimum

of $79,500 in compensatory damages.

1. Although there is no judgment entry in the record which

dismissed Nelson, at the conclusion of the evidence the parties

stipulated that Nelson could be dismissed from the case.

2. There is no judgment entry in the record which dismissed

this claim, however, it does not appear that it was pursued at trial

since the evidence did not support such a claim.

3. There is no judgment entry in the record as to any disposition

on this claim.

Appendix A

The complaint’s second cause of action set forth Darlene

Wightman’s personal claim for property damage, for the loss

of her automobile as a result of appellants’ negligence and

‘intentional, wanton and reckless misconduct.” For this cause

of action, appellee Darlene Wightman requested compensatory

damages in excess of $1,000 and as well as punitive damages

in excess of $25,000.

On December 18, 1989, appellants filed their answer and

on October 3, 1990, appellees filed an amended complaint

which amended their requests for compensatory and punitive

damages. On October 16, 1990, the case proceeded to trial

by jury. At the conclusion of appellees’ case, appellants

moved for a directed verdict, which the trial court denied.

At the conclusion of all of the evidence, the court denied

both appellants’ renewed motion for a directed verdict and

appellees’ motion for directed verdict. The case was then

submitted to the jury with eight interrogatories.

On October 30, 1990, the jury entered a verdict in favor

of the estate of the decedent in the amount of $1,000,000.

By its response to the interrogatories, the jury: (1) found

that the $1,000,000, exclusive of funeral and burial expenses,

would compensate the estate of the decedent without regard

to the negligence of either party; (2) apportioned the

negligence of the parties to the accident as sixty percent to

appellant CRC and forty percent to the decedent; (3) found

that appellant CRC “authorized, participated in, or ratified

actions or omissions of an agent or servant that demonstrated

‘malice’ * * * and that such malice was, by clear and

convincing evidence a proximate cause of the accident”; and

(4) found that appellant CRC should be liable for punitive

damages.

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Appendix A

On October 31, 1990, the court filed its judgment entry

which set a hearing on the punitive damages for November

3, 1990. On November 13, 1990, before the proceedings on

punitive damages were concluded, appellants’ attorney filed

an affidavit of bias or prejudice against the trial judge in the

Supreme Court of Ohio. Because of this filing, the trial court

stayed further proceedings on the case pending determination

of the issue of disqualification. On February 11, 1991, the

affidavit of disqualification was found not well taken. On

May 20, 1991, the trial court filed its judgment entry which

set a further hearing on the punitive damages for June 14,

1991. After further continuances, the hearing on punitive

damages was ultimately held on August 9 and September

20, 1991.

Prior to that hearing taking place, however, on June 10,

1991, CRC filed a motion for judgment notwithstanding the

verdict as to the punitive damage award. In support of its

motion, CRC argued that: (1) punitive damages are not

recoverable in a wrongful death case and therefore punitive

damages could only be awarded as to Darlene Wightman’s

property damage claim; (2) Wightman could only prevail

on her claim for compensatory damages if the jury

determined that CRC’s negligence exceeded Michelle

Wightman’s; (3) since the trial court refused to charge the

jury on CRC’s defense of comparative negligence and the

jury never considered that issue, no judgment can be properly

entered on her property damage claim and, therefore, the

punitive damage award was not proper; (4) punitive damages

cannot be awarded on Darlene Wightman’s claim since no

verdict was ever entered in her favor; (5) while the parties

did stipulate as to the amount of compensatory damages to

Appendix A

which Darlene would be entitled upon a finding of liability,

there was no stipulation as to liability on that claim; (6) there

is no evidence in the record from which the jury could

properly have found that CRC acted with malice and,

therefore, the punitive damage award was not proper, and

(7) that the award of punitive damages is unconstitutional

since it violated the Due Process and Excessive Fines Clauses

of the United States Constitution.

On November 21, 1991, appellants filed a “post-trial

consolidated brief and motion for new trial.” In this brief,

appellants set forth the issues in the case that remained to be

resolved before the entry of final judgment, which included:

(1) appellees’ request for attorney fees, costs and interest on

the award from the date of the verdict; (2) whether appellee

Darlene Wightman was entitled to a punitive damage award

since there was no judgment entry or verdict on her property

damage claim; and (3) whether appellee Darlene Wightman

was entitled to a punitive damage award based upon the

amount of actual damages that she sustained. Appellants also

requested a new trial in order to “prevent a manifest

miscarriage of justice,” primarily citing the issue of the

decedent’s comparative fault and the fact that the jury was

not instructed that the decedent's conduct could have been

found to be willful and wanton.

On February 11, 1992, the trial court filed a judgment

entry in which it summarily denied CRC’s motion for

judgment notwithstanding the verdict without setting forth

any reason for the denial. On November 10, 1992, the trial

court filed a judgment entry in which it summarily denied

appellants’ motion for new trial, again without setting forth

Appendix A

any reasons. In that same entry the trial court entered

judgment in favor of the estate of Michelle Wightman in the

amount of the jury’s verdict of $1,000,000 in compensatory

damages, but awarded no punitive damages. The trial court

noted on the judgment entry that there was no just cause for

delay. Thereafter both parties filed a notice of appeal.

Before we address the parties’ specific assignments of

error, this court feels compelled to state that it has been

difficult at best to consider the issues raised on appeal due

to the failure of the trial court to set forth in its various

judgment entries any basis for its denials of the parties’

motions or the basis for its denial of punitive damages. This

court and the parties have therefore been left to speculate as

to the basis for the court’s rulings. Our review of this case

has been further complicated by the fact that not all of the

claims and parties to this suit have been disposed of.

Although the court did use the requisite Civ.R. 54(B)

language, we fail to see why it did not dispose of the

remaining claims.

I. APPEAL

In its first assignment of error appellant asserts that the

trial court erred by failing to direct a verdict in its favor at

the close of the evidence. In support of this assignment of

error appellant argues that when the decedent proceeded

around the gates and across the railroad tracks, she violated

both state and municipal law governing motorists’ conduct

at railroad crossings, as well as a common-law duty to look

(10a

Appendix A

and listen, and such violations constituted negligence per

se. Appellant also argues that the evidence demonstrates that

the decedent intentionally violated these laws and the

crossing warnings and that had she not done so the accident

would not have occurred and, therefore, the sole cause of

the accident was the decedent’s own negligence.

Appellees respond that the cases of Schellhouse v.

Norfolk & W. Ry. Co. (1991), 61 Ohio St.3d 520, 575 N.E.2d

453, and Brown v. Consol. Rail Corp. (Oct. 11, 1991), Erie

App. No. E-90-35, unreported, 1991 WL 253917, are

dispositive of this issue. Appellees submit that, pursuant to

that authority, the jury’s finding that appellant CRC acted

with malice and that that malice was a proximate cause of

the accident removes all issues of negligence from the case

and, therefore, the trial court properly found that the

decedent’s estate was entitled to recover the full amount of

the compensatory damages assessed by the jury.

Civ.R. 50(A)(4) provides that:

“When a motion for a directed verdict has been properly

made, and the trial court, after construing the evidence most

strongly in favor of the party against whom the motion is

directed, finds that upon any determinative issue reasonable

minds could come to but one conclusion upon the evidence

submitted and that conclusion is adverse to such party, the

court shall sustain the motion and direct a verdict for the

moving party as to that issue.”

In considering a motion for a directed verdict, neither

the weight of the evidence nor the credibility of the witnesses

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Appendix A

is for the court’s determination. Posin v. A.B.C. Motor Court

Hotel (1976), 45 Ohio St.2d 271, 275, 74 0.0.2d 427, 429,

344 N.E.2d 334, 338. Where there is substantial evidence to

support the position of the party against whom the motion is

directed upon which reasonable minds may reach different

conclusions, the motion must be denied. /d.

In Schellhouse, supra, the Supreme Court of Ohio

determined that if a railroad committed an intentional tort

with malice and if that intentional tort was a proximate cause

of the plaintiff's damage, the negligence of the plaintiff's

decedent is not a defense and the plaintiff would be entitled

to full recovery. That court stated that “[a]cts committed with

actual malice constitute behavior qualitatively different from

that which may be characterized as merely negligent.” /d.,

61 Ohio St.3d at 524, 575 N.E.2d at 456. The Schellhouse

court noted that:

“Contributory negligence, prior to the enactment of R.C.

2315.19, did not bar recovery in an action predicated upon

the willful, wanton or reckless conduct of a defendant.

Likewise, the provisions of a statute which operate to prevent

or reduce the recovery of a plaintiff due to her comparative

negligence should not apply in such a case. Accordingly, in

a civil action for tort or wrongful death, a finding by the

jury that a plaintiff (or plaintiff’s decedent) was

comparatively negligent will not defeat or diminish the

recovery of damages where the defendant’s intentional tort.

committed with actual malice, proximately caused the

injury.” /d., 61 Ohio St.3d at 525, 575 N.E.2d at 457.

12a

Appendix A

In Brown v. Consol. Rail Corp. (Oct. 11, 1991), Erie

App. No. E-90-35, unreported, 1991 WL 253917, this court,

citing Schellhouse, supra, determined that a finding of actual

malice negates a set-off for damages under Ohio’s

comparative negligence law.

Even if there had been no evidence presented to support

a finding of malice, under the comparative negligence

doctrine the fact that the decedent violated state and

municipal traffic codes would not automatically establish

that she was the proximate cause of the accident and would

not preclude competent evidence as to appellant’s own

negligence. See Kromenacker v. Blystone (1987), 43 Ohio

App.3d 126, 131, 539 N.E.2d 675, 680; Case v. Norfolk &

W. Ry. Co. (1988), 59 Ohio App.3d 11, 570 N.E.2d 1132;

Brown, supra.

In this case, to grant a directed verdict, the trial court,

upon its review and assessment of the evidence would have

had to conclude that reasonable minds could reach no other

conclusion but that the decedent was negligent and that her

negligence was the sole proximate cause of her death.

Contrary to appellants’ assertions, our review of the record

indicates that there was evidence presented from which the

jury could have reasonably concluded that appellant CRC

acted with actual malice or at the very least acted negligently

and that its actions were a proximate cause of the accident.

We find, therefore, that the trial court did not err in denying

appellant’s motions for a directed verdict. Accordingly,

appellant's first assignment of error is found not well taken.

Lo ek a

13a

Appendix A

In its second assignment of error appellant asserts that

it was denied a fair trial as a result of errors in the court’s

instructions to the jury. Appellant sets forth several specific

areas in which it contends the trial court erred in its

instructions: (1) in refusing to instruct the jury that the

decedent’s intentional violation of known duties could be

found to constitute willful and wanton misconduct, and in

refusing to submit an interrogatory to the jury on that issue;

(2) by instructing the jury as to CRC’s alleged intentional

misconduct when the evidence did not warrant such an

instruction; (3) in failing to charge the jury that the conduct

of the Sandusky police officer could be found to be an

intervening and superseding act relieving appellants of any

liability and in failing to submit an interrogatory to the jury

on this issue; (4) in giving jury instructions that were, in

general, contradictory and confusing and erroneous as a

matter of law; (5) in failing to charge the jury and submit

the required verdict forms to the jury as to the claims

involving Nelson’s liability and Darlene Wightman’s

property damage claim.

We will first address appellant’s assertions as to the

specific instructions that it claims were erroneously excluded

from the jury charge as well as the corresponding

interrogatories that it asserts should have been submitted to

the jury.

“It is well established that the trial court will not instruct

the jury where there is no evidence to support an issue. Riley

v. Cincinnati (1976), 46 Ohio St.2d 287, 75 0.0.2d 331,

EEE SESS EES Tee ee a a ae

l4a

Appendix A

348 N.E.2d 135. However, the corollary of this maxim is

also true. [Footnote omitted.] ‘Ordinarily requested

instructions should be given if they are correct statements

of the law applicable to the facts in the case and reasonable

minds might reach the conclusion sought by the instruction.’

Markus & Palmer, Trial Handbook for Ohio Lawyers

(3 Ed.1991) 860, Section 36:2. See, also, Feterle v. Huettner

(1971), 28 Ohio St.2d 54, 57 0.0.2d 213, 275 N.E.2d 340,

at the syllabus: ‘/n reviewing a record to ascertain the

presence of sufficient evidence to support the giving of a(n]

* * * instruction, an appellate court should determine

whether the record contains evidence from which reasonable

minds might reach the conclusion sought by the

instruction.’ " (Emphasis added.) Murphy v. Carrollton Mfg.

Co. (1991), 61 Ohio St.3d 585, 591, 575 N.E.2d 828, 832.

The use of jury interrogatories is governed by Civ.R.

49(B), which provides in pertinent part:

“The court shall submit written interrogatories to the

jury, together with appropriate forms for a general verdict,

upon request of any party prior to the commencement of

argument. Counsel shall submit the proposed interrogatories

to the court and to opposing counsel at such time. The court

shall inform counsel of its proposed action on the requests

prior to their arguments to the jury, but the interrogatories

shall be submitted to the jury in the form the court approves.

The interrogatories may be directed to one or more

determinative issues whether issues of fact or mixed issues

of fact and law.

TIT Ce ee ee ee wy iets were

1Sa

Appendix A

“The court shall give such explanation or instruction as

may be necessary to enable the jury both to make answers to

the interrogatories and to render a general verdict, and the

court shall direct the jury both to make written answers and

to render a general verdict.”

Although Civ.R. 49(B) requires a trial court to submit

interrogatories to the jury once it is requested to do so, the

court still retains limited discretion “to reject submission of

the interrogatories where the request is untimely or the

proposed interrogatories are ambiguous, confusing,

redundant, or otherwise legally objectionable. Proper jury

interrogatories must address determinative issues and must

be based upon trial evidence.” Ramage v. Cent. Ohio

Emergency Serv., Inc. (1992), 64 Ohio St.3d 97, 107, 592

N.E.2d 828, 836. In Ramage, supra, the court, citing Ragone

v. Vitali & Beltrami, Jr., Inc. (1975), 42 Ohio St.2d 161,

165-166, 71 O.0.2d 164, 166, 327 N.E.2d 645, 649, stated:

“Authority is still vested in the judge to control the

substance and form of the questions, and if the interrogatories

are not based on the evidence, are incomplete, ambiguous

or otherwise legally objectionable, the judge need not submit

them to the jury.” 64 Ohio St.3d at 107-108, 592 N.E.2d at

836.

This court has thoroughly reviewed the arguments of

the parties concerning the jury charge, the entire transcript

of the proceedings before the trial court and the applicable

law. As to appellant’s assertions going to the effect of the

conduct of the decedent, this court finds that not only would

the evidence not support the giving of such an instruction

l6a

Appendix A

and interrogatory but the requested instruction and

interrogatory were not correct statements of the law. See

Payne v. Vance (1921), 103 Ohio St. 59, 133 N.E. 85. As to

appellant’s assertion that the jury charge should have

included the instruction and interrogatory as to the Sandusky

police officer’s conduct being a superseding and intervening

cause, we find that the evidence in the record does not support

the giving of such an instruction and interrogatory. As to

appellant’s assertions as to the issue of Nelson’s liability

not being submitted to the jury, the briefs and the record

indicate that the parties stipulated that Nelson could be

dismissed from the case and therefore it was not necessary

to submit the issue of his negligence to the jury.*

As to appellant’s assertions that the trial court’s jury

instructions were generally confusing, contradictory and

erroneous:

“A charge to the jury should be a plain, distinct and

unambiguous statement of the law as applicable to the case

made before the jury by the proof adduced.” Marshall v.

Gibson (1985), 19 Ohio St.3d 10, 12, 19 OBR 8, 10, 482

N.E.2d 583, 585, citing Parmlee v. Adolph (1875), 28 Ohio

St. 10, paragraph two of the syllabus. “ * * * [A]n incomplete

charge will constitute grounds for reversal of a judgment

where the charge as given misleads the jury.” Marshall,

supra, 19 Ohio St.3d at 12, 19 OBR at 10, 482 N.E.2d at

585.

4. The argument concerning Darlene Wightman’s property

damage claim and the punitive damage award will be dealt with

later in this opinion.

Gia neh hg RRR a ba Ces

i7a

Appendix A

Upon consideration of the jury charge as a whole, in

light of the evidence in the record and the applicable law,

this court finds that charge met the standard set forth in

Marshall, supra. Accordingly, appellant’s second assignment

of error is found not well taken.

In its third assignment of error appellant asserts that the

trial court committed prejudicial error by admitting the

opinion testimony of appellees’ witness, William Berg, and

the testimony of Glen Slyker. Appellant argues that: (1) Dr.

Berg’s testimony should not have been submitted to the jury

as that of an “expert” because his testimony contained

nothing of a scientific or technical nature and contained

nothing that was necessary to assist the jury in understanding

and deciding the facts before it; (2) the trial court erred in

admitting Berg’s testimony as to the existence and breach

of legal duties; (3) Berg’s testimony was based upon facts

that were not in evidence; (4) Berg should not have been

allowed to testify as to CRC’s private company rule; and (5)

witness Glen Slyker should not have been allowed to testify

as to the applicability of certain company rules of the Norfolk

& Western Railway.

Evid. R. 702 states:

“If scientific, technical, or other specialized knowledge

will assist the trier of fact to understand the evidence or to

determine a fact in issue, a witness qualified as an expert by

knowledge, skill, experience, training or education, may

testify thereto in the form of an opinion or otherwise.”

18a

Appendix A

Evid. R. 703 states:

“The facts or data in the particular case upon which an

expert bases an opinion or inference may be those perceived

by him or admitted in evidence at the hearing.”

Evid.R. 704 states:

“Testimony in the form of an opinion or inference

otherwise admissible is not objectionable solely because it

embraces an ultimate issue to be decided by the trier of fact.”

The admissibility of expert testimony is a matter within

the discretion of the trial court and its ruling thereon will

not be disturbed on appeal absent a showing of an abuse of

that discretion. Frank v. Vulcan Materials Co. (1988), 55

Ohio App.3d 153, 563 N.E.2d 339. An abuse of discretion

implies an attitude by the trial court that is unreasonable,

arbitrary, or unconscionable. Ruwe v. Bd. of Springfield Twp.

Trustees (1987), 29 Ohio St.3d 59, 61, 29 OBR 441, 443,

505 N.E.2d 957, 958.

At the trial, appellees’ witness, Dr. William Berg, was

permitted to testify as an expert over appellants’ objections.

Berg first testified as to the materials he had reviewed and

what he did to prepare for testifying at the trial. Berg then

reviewed the conditions that existed at the time of the

collision. Berg testified as to the time and space relationship

of the trains and vehicles, and the perception points and

reaction times of the motorists based upon all the impacting

factors, including how the physical characteristics of the

crossing grade affected those relationships. Berg also

19a

Appendix A

testified as to the placement and operation of railway warning

devices and how their unnecessary activation creates

credibility problems and hazards which lead to accidents,

which is a phenomenon that is well known to the railroad.

Berg also stated that the railroad industry recognizes the

hazards created by the unnecessary operation of automatic

warning signals and, therefore, certain operating rules contain

recommendations for such situations. Berg testified that

CRC’s Operating Rule 105° was such a rule and that it

acknowledges that one train can obscure the approach of

another and create a hazard by directing that to avoid

unnecessary operation of automatic warning devices, engines

and/or cars are not permitted to stand longer than necessary.

Berg also testified that that particular rule contains a

provision that when automatic warning devices are not

operating properly the dispatcher must be notified and

approaching trains must be directed to prepare to stop at

crossings until highway traffic is protected. Berg then stated

that, in his opinion, the principal causal factors of this

collision were: the sight obstruction created by the stopped

train; the operation of the warning devices for such a period

of time that they created a credibility problem; the fact that

the crew observed the conditions that existed, yet took no

action to protect approaching motorists; and the fact that

appellant’s rules were unclear as to what action the crew

5. A portion of CRC’s Operating Rule 105 was read to the

jury as follows: “When equipment is standing and obscuring the

view of highway traffic, an employee must protect highway traffic

against movement on adjacent tracks. Equipment stored on tracks

close to a public crossing must be placed to permit a clear view for

highway traffic using the crossing. When space permits, equipment

must be placed three hundred (300) feet from the crossing.”

20a

Appendix A

was to take in such circumstances. Berg also testified that

the decedent’s conduct was reasonable under the

circumstances since any reasonable person would have

believed that the warning devices were not functioning

properly and that it was safe to proceed cautiously. Berg

testified also as to reasonable alternatives that were available

to appellants which would have accommodated their needs

and interests while at the same time protected the crossing

and the motorists.

Later in the trial Glen Slyker, a retired engineer for

Norfolk & Western Railway, was called to testify by

appellees as a rebuttal witness.° Slyker testified that he

reviewed the operating book for Norfolk & Western Railway

and that there were rules contained therein that applied in

the type of situation that existed in this case. Slyker also

testified that based upon his experience and his observation

of customs and practices observed during his years with

Norfolk & Western, he had encountered many situations in

which he had to stop a train within three hundred feet of a

crossing and that there were rules in the book governing such

situations. He cited specifically to Rule 101(3) which

provided that when the end of a train stands near a grade

crossing, a crew member must, when practicable, protect the

crossing from movement on the adjacent tracks.

6. Slyker was called to rebut testimony by appellant CRC’s

witness, Louis Nelson. Nelson testified that he had reviewed the

operating rules for two other major railroads operating in Ohio and

found that both Norfolk-Southern Railroad and CSX had rules

similar to CRC’s Operating Rule 105. Nelson stated that these two

rules, N.S. 103(c) and CSX Rule 100-F provided that the required

distances for storing equipment near a crossing was only 100 feet.

SY esa ee Se. ane

Na ee ee

2la

Appendix A

Upon consideration of the testimony of William Berg

and the law as set forth above, this court finds that the trial

court did not abuse its discretion in finding that it was

necessary to assist the jury and that the admission of this

testimony was in compliance with Evid.R. 703, 704 and 705.

This court finds further that the trial court did not abuse its

discretion in admitting Berg’s testimony as to CRC’s Rule

105 and Glen Slyker’s testimony as to the rules of other

railway companies, particularly given the cautionary

instructions that were read to the jury concerning their

consideration of these rules.’ See Columbus v. T, aylor (1988),

39 Ohio St.3d 162, 164, 529 N.E.2d 1382, 1384. Accordingly,

appellant’s third assignment of error is found not well taken.

As its fourth assignment of error, appellant sets forth a

general assignment of error encompassing all other errors

that occurred at trial. Since appellant has set forth no

arguments in support of this assignment of error, we need

not address it. App.R. 12(A); State v. Rivers (1977), 50 Ohio

App.2d 129, 135, 4.0.0.3d 100, 103, 361 N.E.2d 1363, 1367.

Accordingly, appellant’s fourth assignment of error is found

not well taken.

7. The following cautionary instruction was given to the jury

both during the course of the trial and in the court’s final instructions:

“You are cautioned that the legal standard of care one party

owes to another is set by the law. Just as one party may not ignore a

duty owed to another by the promulgation of a private rule, a legal

duty is not created to a non-employee by the promulgation of a

private rule and the violation of such a rule, even if proven, is not

negligence in and of itself. Any alleged violation of a company rule

may be considered by you along with all other evidence presented

during trial on the issues presented.”

22a

Appendix A

Il. CROSS-APPEAL

In their first cross-assignment of error appellees assert

that the trial court erred by refusing to submit the issue of

punitive damages to the jury. In support of this assignment

of error appellees argue that that portion of R.C. 2315.21,"

which provides that the amount of punitive damages to be

awarded is to be determined by the court and not the jury

violates Section 5, Article I of the Ohio Constitution’ since

it denies the right to a jury trial on the issue of damages to

persons who suffer injury as a result of intentional

wrongdoing. Appellees assert that Article | guarantees an

individual the opportunity to have all factual issues in a civil

action decided by a jury and that, although the Supreme Court

of Ohio has not ruled on the constitutionality of this particular

8. R.C. 2315.21(C) provides in pertinent part:

“(1) Ina tort action, the trier of fact shall determine the liability

of any defendant for punitive damages.

“(2) In a tort action, whether the trier of fact is a jury or the

court, if the trier of fact determines that any defendant is liable for

punitive or exemplary damages, the amount of those damages shall

be determined by the court.”

9. Section 5, Article I of the Ohio Constitution provides:

“The right of trial by jury shall be inviolate, except that, in

civil cases, laws may be passed to authorize the rendering of any

verdict by the concurrence of not less than three-fourths of the jury.”

23a

Appendix A

statute, its decision in Kneisley v. Lattimer-Stevens Co.

(1988), 40 Ohio St.3d 354, 533 N.E.2d 743, makes it clear

that the statute is unconstitutional.

In response, appellant argues that this issue is moot since

there is no actual property damage award in the record on

which to base an award of punitive damages. In the

alternative, appellant asserts that in Digital & Analog Design

Corp. v. N. Supply Co. (1992), 63 Ohio St.3d 657, 590 N.E.2d

737, the Supreme Court of Ohio determined that, since the

right to punitive damages is an equitable right, as opposed

to a legal one, a litigant has no constitutional right to have a

jury determine the amount of punitive damages.

Initially we note that “[a]ll legislative enactments enjoy

a presumption of constitutionality.” Sedar v. Knowlton

Constr. Co. (1990), 49 Ohio St.3d 193, 551 N.E.2d 938. A

statute will be declared invalid only if its unconstitutionality

is shown beyond a reasonable doubt. Zoppo v. Homestead

Ins. Co. (July 8, 1993), Cuyahoga App. No. 62926,

unreported, 1993 WL 262641, citing Cincinnati Bd. of Edn.

v. Walter (1979), 58 Ohio St.2d 368, 376, 12 0.0.3d 327,

331, 390 N.E.2d 813, 819.

We find appellees’ assertion that the Supreme Court’s

decision in Kneisley, supra, requires us to find R.C. 2315.21

unconstitutional to be without merit. That case concerns the

right to a jury trial for the assessment of damages in

intentional tort actions against an employer and we decline

to apply it to the case before us.

24a

Appendix A

We do find, however, that the decision of the Supreme

Court in Digital & Analog Design Corp., supra, is dispositive

of this issue. In that case the court determined that an award

of attorney fees in a tort action does not compensate the

victim for damages flowing from the tort but is, rather, a

“punitive (and thus equitable) remedy that flows from a jury

finding of malice and the award of punitive damages.” /d.,

63 Ohio St.3d at 662, 590 N.E.2d at 742. The Digital court

found that there was no constitutional right to a trial by jury

on the issue of what amount of attorney fees should be

awarded in a tort action. /d. That court also stated:

“The General Assembly, through its enactment of R.C.

2315.21 and the amendment of R.C. 2315.18, [footnote

omitted] has now clarified that it is a proper function for the

trial court, in a jury trial in a tort action, to determine the

amount of punitive damages, but that the issue of liability is

expressly reserved to the jury. Although these provisions

were not in effect at the time the instant cause of action arose,

we are nonetheless persuaded that the approach taken by the

legislature is the proper course for the development of the

common law of this state.” /d., 63 Ohio St.3d at 663, 590

N.E.2d at 742-743.

In accordance with the foregoing this court finds that

appellees have failed to demonstrate beyond a reasonable

doubt that the provision of R.C. 2315.21 that directs that the

court determine the amount of punitive damages to be

awarded in a tort action once the finder of fact determines

liability therefor is unconstitutional. See Zoppo, supra.

Accordingly, appellees’ first assignment of error is found

not well taken.

25a

Appendix A

In their second cross-assignment of error appellees assert

that the trial court erred in refusing to award punitive

damages, attorney fees and costs to Darlene Wightman on

her property damage claim. Appellees argue that, while the

amount of punitive damages to be awarded lies within the

discretion of the trial court, it was not within the court’s

discretion to fail to award any punitive damages when the

jury expressly found that they are to be assessed. Appellees

argue further that once the finder of fact determines that

punitive damages may be recovered, an award of attorney

fees and costs is also warranted.

In response, appellant argues that the trial court properly

denied an award of punitive damages because there is no

verdict or judgment on Darlene Wightman’s property damage

claim and punitive damages are not recoverable in a wrongful

death action; that while appellant did stipulate at trial as to

the value of the car, it did not stipulate as to the issue of

liability, since the question of Darlene’s comparative

negligence was at issue; and that the issue of their liability

for the damage to Darlene Wightman’s car was never

submitted to the jury and no judgment was entered in her

favor on thai claim. Appellant argues in the alternative that

even if there was a judgment or verdict on the property

damage claim, the trial court has discretion to refuse to grant

an award of punitive damages based upon a finding that

actual damages were insufficient to support the award, citing

Ray v. Engard (Nov. 22, 1985), Lucas App. No. L-85-051,

unreported, 1985 WL 8229; Case v. Norfolk & W. Ry. Co.

(1988), 59 Ohio App.3d 11,570 N.E.2d 1132: Clark v. Totten

26a

Appendix A

(Apr. 24, 1986), Cuyahoga App. Nos. 50535, 50536,

unreported, 1986 WL 4970; Williams v. McCrory Corp. (Jan.

11, 1985), Montgomery App. No. 8963, unreported, 1985

WL 6680. Finally, appellant asserts that the trial court’s

decision to award no punitive damages was proper in that

the evidence presented at trial did not support a finding of

actual malice.

It is not disputed that punitive damages are not

recoverable in a wrongful death action. Rubeck v. Huffman

(1978), 54 Ohio St.2d 20, 8 O.0.3d 11, 374 N.E.2d 411.

The recovery of punitive damages in tort actions is provided

for, however, by R.C. 2315.21, which provides in pertinent

part:

“(B) Subject to division (D) of this section, punitive or

exemplary damages are not recoverable from a defendant in

question in a tort action unless both of the following apply:

“(1) The actions or omissions of that defendant

demonstrate malice, aggravated or egregious fraud,

oppression, or insult, or that defendant as principal or master

authorized, participated in, or ratified actions or omissions

of an agent or servant that so demonstrate,

“(2) The plaintiff in question has adduced proof of actual

damages that resulted from actions or omissions as described

in division (B)(1) of this section.

“(C)(1) Ina tort action, the trier of fact shall determine

the liability of any defendant for punitive or exemplary

damages.

27a

Appendix A

(2) Ina tort action, whether the trier of fact is a jury or

the court, if the trier of fact determines that any defendant is

liable for punitive or exemplary damages, the amount of those

damages shall be determined by the court.

“(3) In a tort action the burden of proof shall be upon ¢

plaintiff in question, by clear and convincing evidence, tc

establish that he is entitled to recover punitive or exemplary

damages.”

The first question we must address is whether the jury’s

determination that CRC is liable for punitive damages was

proper without a verdict or judgment on Darlene Wightman’s

property damage claim. The complaint in this action set forth

a claim for property damage for Darlene Wightman’s car,

which was the vehicle the deceased was driving, and for an

award of punitive damages. During the course of the trial

the parties agreed to stipulate to the value of the vehicle. At

the conclusion of the trial, the court did not instruct the jury

on Wightman’s property damage claim or submit a verdict

form on that issue. Although there appears to be no judgment

entry in the record as to the property damage claim, we find

that, since the jury determined that liability for the collision

rests with appellant CRC based on its finding of actual

malice, appellee Darlene Wightman is, as a matter of law,

entitled to judgment on the property damage claim in the

amount stipulated by the parties. Accordingly, upon the trial

court, on remand, entering the appropriate judgment on the

property damage claim, there is a proper basis for the award

of punitive damages. As to the issue of comparative

negligence, we find that since the jury determined that CRC

acted with malice, the existence of contributory negligence

28a

Appendix A

would not defeat or diminish her recovery of damages.

Schellhouse, supra.

Having determined that there is a proper basis for the

award of punitive damages, we must then address the issue

of whether the trial court abused its discretion in awarding

no punitive damages. Appellant asserts that the trial court

properly refused to award any amount for punitive damages

because the actual damages of $2,000 were insufficient to

support an award. Again, due to its summary entry, we do

not know the basis for the trial court’s denial of punitive

damages.

Upon review of R.C. 2315.21, however, we find that it

does not require that the actual damages upon which an award

of punitive damages is based be substantial. Although the

General Assembly has not set forth the factors to be

considered, our review of cases dealing with awards of

punitive damages compels us to conclude that the amount

of the actual damages sustained should not be the sole factor

in determining the appropriate award of punitive damages.

Rather, a number of factors must be considered by a trial

court in making its determination, while keeping in mind

that the purpose behind an award of punitive damages is

punishment of the guilty party and the deterrence of similar

conduct in the future. See, generally, Villella v. Waikem

Motors, Inc. (1989) 45 Ohio St.3d 36, 543 N.E.2d 464;

Calmes v. Goodyear Tire & Rubber Co. (1991), 61 Ohio

St.3d 470, 473, 575 N.E.2d 416, 419. These factors would

necessarily include, but are not limited to, the nature of the

conduct that resulted in the injury, the financial condition of

the defendant, the amount necessary to deter future similar

29a

Appendix A

conduct, and prior or similar acts by the defendant, as well

as the amount of actual or compensatory damages. Villella,

supra; Spadafore v. Blue Shield (1985), 21 Ohio App.3d 201,

21 OBR 215, 486 N.E.2d 1201: Estate of Morad v. Task

(Mar. 10, 1994), Cuyahoga App. No. 64787, unreported,

1994 WL 78157.

In light of all of the foregoing, this court finds that the

trial court abused its discretion in failing to award any amount

for punitive damages after the jury determined that appellees

are entitled to such an award.

As to appellant’s assertion that the evidence did not

support the jury’s finding of actual malice, the term “actual

malice” is defined as: “(1) that state of mind under which a

person’s conduct is characterized by hatred, ill will or a spirit

of revenge, or (2) a conscious disregard for the rights and

safety of other persons that has a great probability of causing

substantial harm.” (Emphasis sic.) Preston vy. Murty (1987),

32 Ohio St.3d 334, 512 N.E.2d 1174, syllabus.

Upon consideration of the entire record of proceedings

in the trial court, we find that there was clear and convincing

evidence to support the jury’s finding of actual malice on

the part of appellant CRC.

As to the issue of attorney fees, although our review of

the record shows that appellees requested an award of

attorney fees and costs, and the issue was briefed by both

parties, there appears to be nothing in the record to indicate

that the trial court ever ruled on that request. This issue is

therefore not before us on appeal but remains for the trial

court to address upon remand by this court.

30a

Appendix A

Accordingly, appellees’ second cross-assignment of

error is found well taken in part and not well taken in part.

In their third cross-assignment of error appellees assert

that the trial court erred in refusing to order CRC to pay

interest at the statutory rate on the $1,000,000 compensatory

damage award from the date of the jury’s verdict, or in the

alternative, for each day that the entry of judgment was

delayed as a result of appellants’ motion to disqualify the

trial judge.

As to this issue as well, our review of the record indicates

that, although this matter was raised and briefed, no

disposition was made by the trial court. This issue therefore

is not before us on appeal but remains for the trial court to

address upon remand by this court. Accordingly, appellees’

third cross-assignment of error is found not well taken.

On consideration whereof, this court finds that the

decision of the Erie County Court of Common Pleas is

affirmed in part and reversed in part. The decision of that

court denying appellee, Darlene Wightman, any award of

punitive damages is reversed and this case is remanded to

the trial court for determination as to the amount of punitive

damages to which appellee, Darlene Wightman, is entitled

in accordance with this opinion and for disposition of all

remaining matters.

3la

Appendix A

Court costs assessed to appellants.

Judgment affirmed in part,

reversed in part

and cause remanded.

GLASSER and SHERcK, JJ., concur.

32a

APPENDIX B — EXCERPTS FROM TRIAL

TRANSCRIPT OF THE COMMON PLEAS COURT OF

ERIE COUNTY, OHIO DATED MAY 20, 1996

IN THE COMMON PLEAS COURT OF

ERIE COUNTY, OHIO

No. 89-CV-4161

DARLENE M. WIGHTMAN, Admx. of the Estate of

MICHELLE L. WIGHTMAN, Deceased, et al.

Plaintiffs

CONSOLIDATED RAIL CORPORATION, et al.

Defendants

HONORABLE JOSEPH E. CIRIGLIANO,

Presiding

May 20, 1996

a + *

[186] * * *

Q Go slowly, Mr. Knehr, if you would.

A Can I sit down?

33a

Appendix B

THE COURT: Sure, go ahead.

A There were a couple of cars in front, they headed up this

way, and we followed them. A couple of cars got up here

and slowed down, went around, and another car would

come this way. And then finally it was their turn, and we

were behind them still. They got up there, slowed down

a couple of miles an hour, started going around.

What was your intention at that point?

I was going to wait for them to go, and probably wait for

a Car maybe to come this way, and kind of a view and

then go around myself. And started — well, the train

was parked over here about one hundred foot away with

its headlight on, and there was nobody there to, you know,

direct traffic or anything, the cop was down here. They

started going around, got about halfway or so, and all of

a sudden the light got really bright. I didn’t hear a horn

or anything, the only thing I knew about the train being

there was another headlight.

Then what happened? How long after you saw that [187]

light, how long elapsed until the car was hit?

It was only a couple of seconds. They didn’t have a

chance it didn’t seem like. They weren’t going to make

it as slow as they were going. And the train came up, hit

them, pushed them off and over the tracks. The train

finally slowed down, stopped. During that time, Tim got

out, he ran down and got the cop. And he came up, he

called on the CB, and waited for the train to stop to see

34a

Appendix B

what happened to the car. And then I forgot, and I was

scared, didn’t know what to do. And that’s it.

* * *

(300)}* * *

MR. MURRAY: That’s true. One of the elements

that the Court of Appeals has laid out specifically is the

nature of the conduct. Why in the world would you

(inaudible) because you don’t think the nature of the

conduct is very serious. You have got the police officer

(inaudible) for your opening statement. You’re going to

bring in a reconstructionist. Yesterday you introduced

the fact, you suggested that you could see the headlights.

MR. HOWES: I’m not — who said I’m bringing in

a reconstructionist?

MR. MURRAY: You said in your opening statement

that you could see the headlight and you’re suggesting

for something like twelve seconds. And all I’m trying to

do is —

MR. HOWES: Am I going to be allowed to bring

that person in here to show that, Judge?

THE COURT: Pardon?

MR. HOWES: Am] going to be allowed to do that?

35a

Appendix B

[301] MR. MURRAY: I would think if he can show

that she could see the headlight for twelve seconds, of

course, he should be able to bring (inaudible).

THE COURT: Sure. He didn’t have a problem with

that. So I will let you do that.

[626] * * *

Another thing that was testified to by the expert for

Plaintiff was this and let me read the answer that he gave,

he said, “It’s fruitless to attempt to put in a physical

system that’s permanently located at one location only

and say that we’re going to solve this problem, I mean

the problem similar to the one encountered in this

accident, because you can’t predict when a problem is

going to occur,” would you agree with that?

No, I don’t agree with that.

There are locations where you can predict because of the

nature of the train movements that this type of [627] thing

could have occurred?

Well, this type of thing could occur at so many locations.

o* * * *

36a

APPENDIX C — PHOTOGRAPH OF MODEL

OF ACCIDENT SITE

37a

APPENDIX D — CASES IN WHICH THE MURRAY

& MURRAY CO., L.P.A. WAS LEAD COUNSEL FOR

A PARTY OR AMICUS CURIAE IN THE

OHIO SUPREME COURT

Delli Bovi v. Pacific Indemnity Co., 85 Ohio St. 3d 343

(1999); Stacy v. Nationwide Mut. Ins. Co., 85 Ohio St. 3d

1203 (1999); State ex rel. Banc One v. Walker, 86 Ohio

St. 3d 169 (1999); Waite v. Progressive Ins. Co., 85 Ohio

St. 3d 1226 (1999); Wightman vy. Consolidated Rail Corp.,

715 N.E.2d 546 (1999); Cope, et al. v. Metro. Life Ins. e:.

82 Ohio St. 3d 426 ( 1998); Landis v. Grange Mut. Ins. Co.,

82 Ohio St. 3d 339 ( 1998); Chance v. BP Chemicals, Inc.,

77 Ohio St. 3d 17 (1996); Coleman v. Sandoz Pharmaceuticals

Corp., 74 Ohio St. 3d 492 (1996); Hacker v. Dickman,

75 Ohio St. 3d 118 (1996); Roberts v. United States Fid. &

Guar. Co., 75 Ohio St. 3d 630 (1996); State ex rel. Lyons v.

Zaleski, 75 Ohio St. 3d 623 (1996); Weston v. Weston Paper

& Mfg. Co., 74 Ohio St. 3d 377 (1996); Kenty v. Transamerica,

72 Ohio St. 3d 415 (1995); Ross v. Tom Reith, Inc., 71 Ohio

St. 3d 563 (1995); Sharp v. Norfolk & Western Ry. Co.,

72 Ohio St. 3d 307 (1995); Borsick v. State Farm Fire &

Cas. Co., 68 Ohio St. 3d 1221 (1994); Frazier v. Depinet,

69 Ohio St. 3d 1211 (1994); Freeman v. Norfolk & Western

Ry. Co., 69 Ohio St. 3d 611 (1994); Horner v. Toledo

Hospital, 70 Ohio St. 3d 1211 (1994); Leber v. Smith,

70 Ohio St. 3d 548 (1994); Phung v. Waste Management,

71 Ohio St. 3d 408 (1994); Sanderson v. Ohio Edison Co.,

69 Ohio St. 3d 582 ( 1994); Sorrell v. Thevenir, 69 Ohio

St. 3d 415 (1994), Zoppo v. Homestead Insurance Company,

71 Ohio St. 3d 552 (1994): Borsick v. State Farm Mut. Auto.

Ins. Co., 68 Ohio St. 3d 81 (1993); Brinkman v. Ross,

68 Olhio St. 3d 82 (1993); Polikoff v. Adam, 67 Ohio St. 3d

100 (1993); Manufacturer’s Natl. Bank of Detroit v. Erie

38a

Appendix D

County Road Commission, 63 Ohio St. 3d 318 (1992);

Motorists Mutual Ins. Co v. Andrews, 65 Ohio St. 3d 362

(1992); Motorist Mut. Ins. Co. v. Said, 63 Ohio St. 3d 690

(1992); Padilla v. YMCA of Sandusky Co., 64 Ohio St. 3d

1439 (1992); Brady v. Safety-Kleen Corp., 61 Ohio St. 3d

624 (1991); Schellhouse v. Norfolk & Western Ry. Co.,

61 Ohio St. 3d 520 (1991); Drage v. Ameritrust Corp.,

49 Ohio St. 3d 604 (1990); Huston v. Konieczny, 52 Ohio

St. 3d 214 (1990); Renfro v. Smith Labs, 52 Ohio St. 3d 27

(1990); State ex rel. The Ohio Company v. Maschari,

51 Ohio St. 3d 18 (1990); Stepak v. Schey, 51 Ohio St. 3d 6

(1990); Burris v. Grange Mut. Companies, 46 Ohio St. 3d

84 (1989); Crosby v. Beam, 47 Ohio St. 3d 105 (1989);

Digital v. Analog Design Corp. v. North Supply Co., 44 Ohio

St. 3d 36 (1989); Miller v. Wikel Mfg. Co., Inc., 46 Ohio St.

3d 76 (1989); Carney v. McAfee, 35 Ohio St. 3d 52 (1988);

Gressman v. McClain, 40 Ohio St. 3d 359 (1988); Sharp v.

Norfolk & Western Ry. Co., 36 Ohio St. 3d 172 (1988);

Warner v. Waste Management, Inc., 36 Ohio St. 3d 91

(1988); Armstrong v. Marathon Oil Co., 32 Ohio St. 3d 397

(1987); Horman v. Veverka, 30 Ohio St. 3d 4 (1987); Viock

v. Stowe- Woodward Co., 34 Ohio St. 3d 602 (1987); Phung

v. Waste Management, Inc., 23 Ohio St. 3d 100 (1986); Jones

v. VIP Development Co., 15 Ohio St. 3d 90 (1984); Kisil v.

City of Sandusky, 12 Ohio St. 3d 30 (1984); Sumwalt v.

Allstate Ins. Co., 12 Ohio St. 3d 294 (1984); Yeager v. Local

Union 20, 6 Ohio St. 3d 369 (1983); Noroski v. Fallet,

2 Ohio St. 3d 77 (1982); Ruta v. Breckenridge-Remy Co.,

69 Ohio St. 2d 140 (1982); Masheter v. Welschenbach,

48 Ohio St. 3d 8 (1976); State v. Chaffin, 30 Ohio St. 2d 13

(1972).

39a

APPENDIX E — EXCERPTS FROM TRIAL

TRANSCRIPT OF THE COURT OF COMMON PLEAS,

ERIE COUNTY, OHIO DATED OCTOBER 16, 1990

IN THE COURT OF COMMON PLEAS,

ERIE COUNTY, OHIO

CASE NO. 89-CV-416

DARLENE M. WIGHTMAN, Admrx. of the Estate of

Michelle L. Wightman, Deceased, et al.,

Plaintiffs

~ vs —

Consolidated Rail Corp., et al.,

Defendants.

TRANSCRIPT

VOLUME ONE

TRANSCRIPT of MOTIONS BEFORE TRIAL;

TRIAL OF OCTOBER 16, 17, 18, 19, 22, 23, 24, 25, 26,

29 and 30, 1990; and HEARINGS OF NOVEMBER >

1990; AUGUST 9, 1991; AND SEPTEMBER 20, 1991,

had before HONORABLE ANN B. MASCHARI, Judge,

Court of Common Pleas, Erie County, Ohio.

* * *

[1062] Q Now, I want to go over very, very carefully with

you as you think about this, Michelle .... Stephanie,

40a

Appendix E

I want to go through every moment that evening when

you can recall seeing Michelle Wightman with anything

of an alcoholic nature in her hand, whether she had it in

her hand or whether she’s actually drinking it; okay?

(No audible response).

Now, can you remember approximately when it was that

evening that you first saw Michelle Wightman with

something of an alcoholic nature in her hand?

It was about ten . . . . about quarter to nine. It was about

fifteen minutes before we went and picked up Carrie.

We... . Michelle went in her sister’s room. That’s where

we had it kept, in her sister’s room, and she got a wine

cooler out and I seen her open it and I seen her take a sip

of it.

All right. Now, is that the first time that evening you’d

seen Michelle drink anything?

Yes.

Q Did you observe how much of it she drank?

A No. I know it wasn’t much because it was still ....

I seen that it was full. It wasn’t —

Okay. Now, just try and focus on that for a minute. You

saw her take a sip?

Yeah.

4la

Appendix E

[1063] Q And what did she do with it?

Bin me Ber OD ess

She set it down.

Now, did you happen to observe how much was in that

wine cooler when she set it down?

No, I don’t... . I don’t pay attention.

Had you been with Michelle most of the time at least up

till a quarter to nine when you saw her take this sip?

Yeah, I was with her the whole time.

And that’s the first time you saw her take anything —

Yes.

— of an alcoholic nature that night?

Yes.

Did you see her drink any pop or anything like that?

No. Earlier in the day but not at night.

Now, at that point, if I understand it, was that when Carrie

called up and said come get me?

Yes.

Did you go with Michelle?

42a

Appendix E

A Yes.

Q Was Michelle perfectly normal in the way she talked and

walked and drove a car?

A Yes.

Q And you went over and got Carrie at her house?

* * *

[1071] Q Now, did you have an opportunity at that time,

Stephanie, to observe Michelle and how was she acting

and so forth?

A She was fine. She was normal like how she always was.

Q How is she always .... how is it that she always was,

Stephanie?

A She was the kind of person outgoing; she would make

friends with you; she was real friendly; she was. . . . she

was fun to be around.

Q Now, at that point, at the point where Michelle shakes

you out of your sleep and says you want to come with

me while I take Carrie home, thinking back again to

everything that you’ve now been able to remember about

that evening, do you remember Michelle having anything

of an alcoholic nature in her hand or drinking it other

than those two occasions you’ve described; that is, when

she took a sip and put it down on the table or when you

43a

Appendix E

saw her drinking what you don’t know was the same wine

cooler or a different one after you got back?

I seen her with two wine coolers and two beers in her

hand. She was taking them into the living room here

everybody .... there was a whole... . there was Bobby

and his friends were there.

All right. Now, I don’t think . . . . I don’t think that... .

is that on the statement about her having the [1072] two

wine coolers and two beers in her hand taking them in?

I don’t remember.

No.

Okay, all right. So if the question is . . . . if | understand

you, Stephanie, if the question is what you saw Michelle

Wightman consume, it would have been two occasions

when you saw her drinking from either two different wine

coolers or the same wine cooler; is that right?

Right.

Now, if the question is did you see her with anything of

an alcoholic nature in her hand, then what is the answer?

I seen her with the wine cooler that she was drinking and

the two other ones and the two beers that she was taking

into the living room.

I see. Now, when you saw her with these two wine coolers

and two beers, what, was she carrying them into where

the gang was gathered?

ok ae ae ae

44a

Appendix E

Yes.

Is that it?

Yeah.

All right. Now, at any time did you see Michelle

Wightman open a bottle of beer that evening?

I don’t know. I don’t —

[1073] Q Did you ever see her take a sip from any bottle of

aoe A OO

beer that evening?

Not that I remember. I remember hearing Bobby say... .

Bobby said —

Don’t get into what other people said.

Okay, no.

Just what you saw.

No.

At any time that evening did you see Michelle Wightman

take a drink from any bottle of beer or can of beer?

No.

Stephanie, can you remember any time that you’ve been

with Michelle in your entire life when you’ve seen her

drink a beer?

ae ae

45a

Appendix E

No.

You have seen her drink wine coolers?

Yes.

Have you seen her drink wine coolers in fact at home

with her mother present?

Yes.

Now, Stephanie, what kind of a.... you may not....

whether you zonk out or not, what kind of a sleeper are

you?

I’m a heavy sleeper.

And when you went to sleep that evening, do you think

46a

APPENDIX F — DEFENDANT’S MOTION FOR

RECUSAL AND CONTINUANCE OF THE TRIAL

IN THE COURT OF COMMON PLEAS

ERIE COUNTY, OHIO

CASE NO: 89-CV-416

JUDGE MASCHARI

DARLENE M. WIGHTMAN, et al.,

Plaintiffs,

CONSOLIDATED RAIL CORPORATION, et al.,

Defendants.

DEFENDANT’S MOTION FOR RECUSAL

AND CONTINUANCE OF THE TRIAL

Defendant, Consolidated Rail Corporation, respectfully

moves the court to recuse herself from this case and to

continue the trial. Defendant submits this motion on the basis

that events occurring after the remand order from the court

of appeals have caused defendant to lose confidence in the

impartiality of the court.

In support of the motion, defendant submits copies of

the attached letter which it hand-delivered to Judge Maschari

on March 31, 1995, and the letter sent by plaintiff's counsel

to the court on January 25, 1995.

47a

Appendix F

Respectfully submitted,

VOGELGESANG, HOWES,

LINDAMOOD & BRUNN

s/ Thomas R. Himmelspach

Philip E. Howes (0016390)

Thomas R. Himmelspach (0038581)

Attorney for Defendant

400 Tuscarawas Street, West —

Suite 200

P.O. Box 20870

Canton, OH 44701-0870

(216) 456-3483

FAX: (216) 456-9533

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.