The $28 Million Lineman Verdict Is Gone: How the 'Empty Chair' Rule Hurts Injured Workers

Published December 18, 2018 · Verdicts & Settlements · Ohio Appeals Courts

In June 2017, I wrote about a Hamilton County jury's verdict of nearly $28 million for the family of Keith Jester, a senior Duke Energy lineman who was killed when a rotted utility pole snapped while he was strapped to it. The jury found that Utilimap Corporation, the contractor Duke Energy had paid to inspect the pole, was 100 percent responsible. You can read about that verdict in my earlier post.

On November 30, 2018, the First District Court of Appeals in Cincinnati reversed that judgment and ordered a new trial. Jester v. Utilimap Corp., 2018-Ohio-4755 (1st Dist.). The reason was not that Utilimap did nothing wrong. It was that the jury was never allowed to consider whether Mr. Jester's own employer, which could not be sued, shared the blame. That legal rule, known as the "empty chair" defense, can significantly reduce what an injured worker or a grieving family collects from a negligent outside company.

What happened

According to the appeals court, in 2011 Duke Energy hired Utilimap to inspect about 30,000 utility poles in southwest Ohio, including below-ground inspections of older or decaying poles. The pole that later killed Mr. Jester, on a Warren County farm, was never inspected. The Utilimap inspector could not reach it because it stood in a crop field; he recorded its circumference as zero and wrote "bean field" in his notes.

In February 2014, Mr. Jester volunteered to lead a crew taking down a line of old poles, using the job as a training exercise. He sound-tested the second pole with a hammer, and it seemed solid. While he and another worker were on it, the 40-foot pole broke below the ground line. Mr. Jester died of internal injuries. Duke Energy's own investigation found the pole was severely decayed below the surface.

Because Duke Energy was Mr. Jester's employer and the family received workers' compensation benefits, Ohio law protected Duke from an ordinary negligence suit. The trial court granted Duke summary judgment on the family's claim that Duke committed an intentional tort. The case went to trial against Utilimap alone.

The empty-chair defense

Ohio's apportionment statute, R.C. 2307.23, requires a jury to assign a percentage of fault not only to the parties in the courtroom, but also to each person "from whom the plaintiff does not seek recovery in this action." Under R.C. 2307.23(C), a defendant can raise as an affirmative defense that part of the fault belongs to someone who is not at the defense table. Lawyers call this the "empty chair."

Before trial, the judge ruled that Utilimap could not point to Duke Energy's empty chair, finding no evidence that Duke had been negligent. The jury then put all the fault on Utilimap.

The First District held that ruling was wrong for two reasons:

An immune employer can be an "empty chair." One Ohio appellate court, the Fifth District, had held that an employer protected by workers' compensation immunity cannot be assigned fault, because the employee's exclusive remedy against it is workers' compensation. The First District disagreed, reading R.C. 2307.23 to cover any non-party, including an immune employer. It agreed with the Eighth District, which had reached the same conclusion in cases including Fisher v. Beazer East, the asbestos case I wrote about in a 2013 post on fault apportionment.

There was evidence a jury could use against Duke. The court pointed to Duke's own audit of Utilimap's work in early 2012, which found poles that had not been inspected at all; testimony that Duke's data showed this pole had not been inspected; evidence that Duke had not adequately trained linemen on inspecting poles in freezing weather (it was well below freezing that day); and OSHA citations Duke later settled. Because a reasonable juror could find Duke negligent, the jury had to be allowed to apportion fault to it. The errors were not harmless, so the court ordered a new trial.

One part of the ruling helps workers

The court did reject one of Utilimap's arguments, and that holding matters. Utilimap claimed that climbing an old pole is so inherently dangerous that a lineman "assumes the risk" of a collapse, so no one owed him a duty. The First District disagreed. It doubted that primary assumption of the risk, a doctrine usually applied to sports and recreation, applies to workplace deaths at all, and it held that underground rot in a utility pole is not the kind of danger inherent in utility work that cannot be eliminated. Contractors who inspect or maintain the equipment workers rely on cannot escape responsibility by calling the job dangerous.

Why the empty chair costs injured workers money

Assigning fault to an immune employer does not just change a number on a verdict form. Under R.C. 2307.22:

• Noneconomic damages (pain and suffering, loss of a spouse's companionship) are paid by each defendant only in proportion to its share of fault.
• Economic damages (lost wages, medical bills, funeral expenses) can be collected in full from a defendant found more than 50 percent at fault. A defendant at 50 percent or less pays only its share.

The employer, meanwhile, pays nothing beyond workers' compensation. So every percentage point of fault the jury moves to the employer's empty chair comes straight out of the family's recovery against the outside company. If a jury were to place enough fault on the employer to drop the contractor to 50 percent or below, the contractor would no longer be responsible for all of the economic losses either.

What paths remain

This decision is a setback, but it does not end the case or claims like it.

• The appeals court sent the case back for a new trial. The ruling does not erase Utilimap's responsibility. It means a properly instructed jury, not the judge, decides how much of the fault belongs to the contractor that reported its inspections complete without ever inspecting this pole, and how much, if any, belongs to the employer.
• Third-party claims remain essential. Workers' compensation pays only part of a worker's losses. A third-party claim against a negligent contractor, manufacturer or driver is often the only path to full compensation.
• Plaintiffs must prepare for the empty chair from day one. That means investigating the employer's role as thoroughly as the defendant's, retaining experts who can address both, and being ready to show why the outside company's failures were the real cause.

What this means for you

If you were seriously hurt at work, or lost a family member in a workplace death, and someone other than the employer contributed to it, you likely have a claim beyond workers' compensation. But after Jester, you should expect the defense to blame your employer, and at least two of Ohio's appellate districts now allow it. Building a case that anticipates that defense requires early investigation, while records, equipment and witnesses are still available. Our page on wrongful death claims explains how families pursue these cases.