Erik Conte v. General Housewares Corporation

1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0200P (6th Cir.)
File Name: 00a0200p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
ERIK C ONTE ,
Plaintiff-Appellee,
v.
GENERAL HOUSEWARES
C ORPORATION ,
Defendant,
DAYTON P OWER & LIGHT
C OMPANY ,
Defendant-Appellant.
;>

1
Nos. 98-4315;
99-4137
Appeal from the United States District Court
for the Southern District of Ohio at Dayton.
No. 95-00451—Susan J. Dlott, District Judge.
Argued: March 16, 2000
Decided and Filed: June 14, 2000
Before: NORRIS, MOORE, and COLE, Circuit Judges.

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2 Conte v. General
Housewares Corp., et al.
Nos. 98-4315; 99-4137
_________________
COUNSEL
ARGUED: Scott R. Thomas, FURNIER & THOMAS,
Cincinnati, Ohio, for Appellant. Thomas R. Murphy,
ROCHE, HEIFETZ, MURPHY & WHOLLEY, Boston,
Massachusetts, for Appellee. ON BRIEF: Scott R. Thomas,
Robert R. Furnier, Norman J. Frankowski II, FURNIER &
THOMAS, Cincinnati, Ohio, for Appellant. Thomas R.
Murphy, ROCHE, HEIFETZ, MURPHY & WHOLLEY,
Boston, Massachusetts, Steven B. Ayers, CRABBE,
BROWN, JONES, POTTS & SCHMIDT, Columbus, Ohio,
for Appellee.
_________________
OPINION
_________________
KAREN NELSON MOORE, Circuit Judge. Plaintiff-
appellee Erik Conte successfully sued defendant General
Housewares Corp. (“GHC”) and defendant-appellant Dayton
Power and Light Co. (“DP&L”) in connection with severe
personal injuries that he received as a result of a large
electrical shock and obtained a verdict of $3.5 million.
DP&L now appeals several of the district court’s rulings with
respect to that verdict and with respect to the award of
prejudgment interest against DP&L. Because there was no
error in the district court’s decisions to award prejudgment
interest against DP&L and to deny DP&L’s motions for
judgment as a matter of law, a new trial, and relief from the
award of prejudgment interest, we AFFIRM those rulings of
the district court, and we REMAND for recalculation of
DP&L’s liability in light of the partial satisfaction of the
judgment by GHC and the accrued postjudgment interest.
Nos. 98-4315; 99-4137 Conte v. General
Housewares Corp., et al.
19
merely because its co-obligor settles with the plaintiff after
the verdict. Although DP&L cites several cases that
purportedly hold to the contrary, Conte is correct in pointing
out that those cases either involved preverdict settlements or
verdicts that legitimately apportioned damages among
defendant tortfeasors. Those cases are therefore not apposite.
For these reasons, we hold that the district court did not abuse
its discretion in refusing to relieve DP&L from having to pay
prejudgment interest on the entire judgment.
Additionally, DP&L claims that it is entitled to a reduction
of the judgment against it based on GHC’s settlement with
Conte, in partial satisfaction of the judgment, for $3.675
million. Given our holding that DP&L is required to pay
prejudgment interest, the parties do not appear to disagree
about the amount for which DP&L remains liable: the entire
judgment of $3.5 million, plus the prejudgment interest on
that amount ($958,904.10), minus the $3.675 million paid by
GHC, plus the appropriate postjudgment interest. Since we
are remanding the case to the district court for the calculation
of postjudgment interest, we suggest that the district judge
amend the judgment to reflect the payment of $3.675 million
by GHC and the revised amount of DP&L’s liability,
consistent with this opinion.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s
judgment and REMAND for recalculation of DP&L’s
liability in light of the accrued postjudgment interest and the
partial satisfaction of the judgment by GHC.

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18 Conte v. General
Housewares Corp., et al.
Nos. 98-4315; 99-4137
7Indeed, DP&L’s argument, carried to its logical conclusion, would
appear to allow a party always to avoid paying prejudgment interest
merely by paying the underlying judgment in full and then claiming that
there was no longer a judgment on which to pay interest.
D. Motion for Relief from the Judgment
Applying federal law, this court reviews for an abuse of
discretion the district court’s decision to grant or deny a Rule
60(b) motion in a diversity case. See Davis v. Jellico
Community Hosp. Inc., 912 F.2d 129, 132-33 (6th Cir. 1990).
DP&L contends that the district court abused its discretion in
denying DP&L’s motion for relief from the judgment under
Federal Rule of Civil Procedure 60(b)(5) on the ground that
the judgment has been partially satisfied.
First, DP&L argues that it should now be relieved of
liability for the prejudgment interest, because, due to GHC’s
payment of the full amount of the underlying $3.5 million
judgment, there is no longer a judgment on which
prejudgment interest may be based. Although neither party
has cited published Ohio cases that are directly on point, as a
matter of logic it is clear that a prejudgment interest award
cannot be eradicated by a postjudgment settlement for the
amount of the jury verdict, since the prejudgment interest was
merged with the amount of the jury verdict to form the total
judgment. See Nakoff v. Fairview Gen. Hosp., 694 N.E.2d
107, 108 (Ohio Ct. App.), appeal not allowed, 680 N.E.2d
1022 (Ohio 1997). It would therefore be inaccurate to state
that the judgment has been fully satisfied by GHC’s payment
of $3.675 million after the prejudgment interest was awarded
against DP&L.7 Moreover, it is irrelevant for the purposes of
prejudgment interest that the amount of the verdict is paid
subsequent to the verdict, because prejudgment interest is
intended to compensate the plaintiff for the delay between the
time the cause of action arose and the verdict. See, e.g.,
Woods v. Farmers Ins. of Columbus, Inc., 666 N.E.2d 283,
286 (Ohio Ct. App. 1995). Therefore, a defendant is not
relieved of the requirement to pay prejudgment interest
Nos. 98-4315; 99-4137 Conte v. General
Housewares Corp., et al.
3
1As explained by Nowicki, the difference between primary lines and
secondary lines is that “primaries” are generally uninsulated and carry
between 7200 and 12,500 volts of electricity, and “secondaries” are
generally insulated and carry less than 600 volts.
I. BACKGROUND
Erik Conte, an employee of Kessler Tank Co., was sent,
along with two other Kessler employees, to paint an elevated
water tank on the premises of General Housewares Corp. in
Sidney, Ohio on June 10, 1995. The water tank was
surrounded by high-voltage electrical wires, some of which
had been de-energized by a DP&L employee at the request of
GHC. Conte was severely injured when the extension pole he
was using came into contact with one or more of the
energized power lines, causing him to receive a large
electrical shock.
The facts surrounding this accident were disputed. It seems
that GHC’s maintenance manager, Don Doll, contacted
Dayton Power & Light to inquire about having some power
lines de-energized in preparation for the painting. The DP&L
employees who initially inspected the GHC site
recommended a total power outage, but a GHC representative
told Mike Nowicki, a supervisor at DP&L, that GHC was not
willing to undergo a total outage, because it needed to have
enough power to run the computers and other devices in its
factory building. All the parties agree on these facts, but they
do not agree on what happened next. There was conflicting
testimony at trial concerning which power lines were to be
left energized and who made that decision. Ultimately, Mike
Large, a technician from DP&L, appeared at GHC on June 10,
1995, and de-energized only those secondary wires attached
to the legs of the water tank, leaving the primaries and the
other secondaries energized.1 The Kessler employees
proceeded to paint the tank and, while suspended from a
botswain chair, Erik Conte accidentally allowed his sixteen-
foot extension pole to make contact with one or more of the

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4 Conte v. General
Housewares Corp., et al.
Nos. 98-4315; 99-4137
2Since Conte is a citizen of Massachusetts, GHC is a Delaware
corporation with its principal place of business in Ohio, DP&L is an Ohio
corporation with its principal place of business in Ohio, and the amount
in controversy was jurisdictionally adequate, the district court properly
assumed jurisdiction under 28 U.S.C. § 1332.
primary lines, which caused him severe burns and
disfigurement.
Conte filed suit against GHC and DP&L in federal court on
November 29, 1995, for negligence, misrepresentation, and
breach of contract.2 He subsequently amended his complaint
to omit the claims of misrepresentation and breach of contract
against DP&L. The defendants moved for summary
judgment. The magistrate judge recommended granting the
summary judgment motions, finding in particular that Conte’s
injuries were not foreseeable by DP&L, since DP&L did not
know that the Kessler workers would use a long extension
pole to paint the tank; furthermore, the magistrate judge found
that DP&L exercised ordinary care in de-energizing the power
lines. The district court denied the summary judgment
motions, however, finding instead that there were material
questions of fact as to who determined which lines were to be
de-energized and whether the process of de-energizing was
performed with due care. The case went to trial, and Conte
received a $3.5 million verdict. On September 11, 1998, the
district court granted Conte’s motion for prejudgment interest
in the amount of $958,904.10 against DP&L only, finding that
DP&L had failed to negotiate in good faith with Conte. The
jury had erred, however, by apportioning liability for the
verdict between the defendants ($3 million to GHC and
$500,000 to DP&L) where the defendants were jointly and
severally liable under Ohio law. The district court, with the
agreement of counsel for all sides, therefore amended the
judgment on October 14, 1998, to reflect the joint and several
liability of GHC and DP&L for $3.5 million and the
prejudgment interest award against DP&L. DP&L then filed
a motion to amend the amended judgment entry, requesting
that it state that prejudgment interest against DP&L would be
Nos. 98-4315; 99-4137 Conte v. General
Housewares Corp., et al.
17
attributable to the plaintiff, then joint and several liability
would lie.”). The jury was therefore not entitled to apportion
the damages between the two tortfeasors. See George B.
Scrambling Co. v. Tennant Drug Co., 158 N.E. 282, 285-86
(Ohio Ct. App. 1927); Cincinnati Traction Co. v. Cochran,
153 N.E. 116, 116-17 (Ohio Ct. App. 1923). The jury’s
answers to the special interrogatories, which found both
DP&L and GHC negligent and Conte not contributorily
negligent — thereby invoking joint and several liability under
Ohio law — are inconsistent with the general verdict, which
apportioned fault between DP&L and GHC. Therefore, the
district court was entitled under Rule 49(b) to enter the
judgment in accordance with the interrogatory answers and
notwithstanding the verdict.
DP&L argues that the interrogatory answers and the general
verdict were consistent when construed in light of the district
court’s “proximate cause” charge, which instructed the jury
that “[e]ach defendant must respond for only those losses and
injuries which are the direct and proximate result of its
negligent act.” J.A. at 2239 (Jury Charge). This argument is
without merit. The requirement of proximate causation does
not eliminate joint and several liability: joint and several
liability implies that the joint acts of both defendants
proximately caused the plaintiff’s injuries. See 18 OHIO J UR.
3d Contribution, Indemnity, and Subrogation §§ 83, 84
(1980). Therefore, under joint and several liability, both
defendants are held responsible for all of the plaintiff’s
injuries, because their joint acts were the proximate cause of
all of those injuries.
For these reasons, we hold that the district court correctly
amended the judgment under Rule 49(b), and therefore that it
did not abuse its discretion in refusing to grant the
defendant’s motion for a new trial on this basis.

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16 Conte v. General
Housewares Corp., et al.
Nos. 98-4315; 99-4137
more issues of fact the decision of which is necessary to a
verdict. . . . When the answers are consistent with each other but
one or more is inconsistent with the general verdict, judgment
may be entered pursuant to Rule 58 in accordance with the
answers, notwithstanding the general verdict, or the court may
return the jury for further consideration of its answers and
verdict or may order a new trial.
F ED. R. CIV. P. 49(b).
interrogatory responses, finding that both DP&L and GHC
were negligent and that Conte was not contributorily
negligent, were not inconsistent with the “general verdict”
forms, which found DP&L liable for $500,000 and GHC
liable for $3 million. Therefore, it claims, the district court
did not have the authority under Federal Rule of Civil
Procedure 49(b) to correct the judgment entry. The district
court found that the answers were inconsistent with the
general verdict and declined to grant DP&L’s motion for a
new trial.
In a diversity case, federal law governs most issues
surrounding the utilization of special interrogatories and the
problem of inconsistent answers, including the effect of
inconsistency between a general verdict and one or more
special interrogatories. See Jewell v. Holzer Hosp. Found.,
Inc., 899 F.2d 1507, 1510 (6th Cir. 1990). However, federal
courts look to state law to determine whether a verdict is
inconsistent. See Tipton v. Michelin Tire Co., 101 F.3d 1145,
1148 n.4 (6th Cir. 1996).
DP&L’s objection to the amended judgment is without
merit. As the district court correctly found, DP&L and GHC
were jointly and severally liable as a matter of Ohio law,
because they were joint tortfeasors, and Conte was not
contributorily negligent. See OHIO R EV . C ODE ANN .
§ 2315.19; Eberly v. A-P Controls, Inc., 572 N.E.2d 633, 638-
39 (Ohio 1991) (“[S]everal liability [is] triggered only upon
a finding of negligence on the part of the plaintiff. . . . If a
jury return[s] answers to interrogatories finding no negligence
Nos. 98-4315; 99-4137 Conte v. General
Housewares Corp., et al.
5
calculated only after contribution rights between DP&L and
GHC had been determined, or, alternatively, that the
prejudgment interest award against DP&L be calculated only
on the amount of $500,000. The district court then denied the
motion to amend the amended judgment, and DP&L
appealed.
Meanwhile, on September 28, 1998, GHC settled with
Conte for $3.675 million. DP&L therefore filed a motion
pursuant to Federal Rule of Civil Procedure 60(b)(5) for relief
from the judgment to the extent of the settlement amount.
The district court denied the order as superfluous. DP&L
then appealed that order.
On appeal, DP&L makes several claims of error. First, it
argues that the district court abused its discretion in granting
prejudgment interest to Conte. It also claims that the district
court erred in denying DP&L’s motion for judgment as a
matter of law and abused its discretion in denying DP&L’s
motion for a new trial. Finally, DP&L contends that the
district court’s denial of DP&L’s motion for relief from the
judgment was in error.
II. ANALYSIS
A. Prejudgment Interest
In a diversity case, state law governs the district court’s
decision whether to award prejudgment interest, see Diggs v.
Pepsi-Cola Metro. Bottling Co., 861 F.2d 914, 924 (6th Cir.
1988), which is reviewed by this court for an abuse of
discretion, see Stallworth v. City of Cleveland, 893 F.2d 830,
836 (6th Cir. 1990) (applying Ohio law). The Ohio courts
have defined an abuse of discretion, in the context of
prejudgment interest awards, as a result “so palpably and
grossly violative of fact and logic that it evidences not the
exercise of will but perversity of will, not the exercise of
judgment but defiance thereof, not the exercise of reason but
rather of passion or bias.” State v. Jenkins, 473 N.E.2d 264,
313 (Ohio 1984) (quoting Spalding v. Spalding, 94 N.W.2d

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6 Conte v. General
Housewares Corp., et al.
Nos. 98-4315; 99-4137
810, 811-12 (Mich. 1959)), cert. denied, 473 U.S. 1032
(1985).
Under Ohio law, a plaintiff is entitled to prejudgment
interest if the court determines “that the party required to pay
the money failed to make a good faith effort to settle the case
and that the party to whom the money is to be paid did not fail
to make a good faith effort to settle the case.” O HIO R EV .
C ODE ANN . § 1343.03(C) (Banks-Baldwin 1994). The Ohio
Supreme Court has held that a party has not failed to make a
good-faith effort to settle under the statute if that party has
(1) fully cooperated in discovery proceedings, (2)
rationally evaluated his risks and potential liability, (3)
not attempted to unnecessarily delay any of the
proceedings, and (4) made a good faith monetary
settlement offer or responded in good faith to an offer
from the other party. If a party has a good faith,
objectively reasonable belief that he has no liability, he
need not make a monetary settlement offer.
Kalain v. Smith, 495 N.E.2d 572 (Ohio 1986), syllabus. In
Moskovitz v. Mt. Sinai Medical Center, 635 N.E.2d 331
(Ohio), cert. denied, 513 U.S. 1059 (1994), the Supreme
Court of Ohio noted that the last sentence “should be strictly
construed so as to carry out the purposes of R.C. 1343.03(C).”
Id. at 348. Although the burden of proof is on the party
seeking the prejudgment interest, that burden does not require
showing bad faith by the other party, but rather only a lack of
good faith. See id.
The district court held that DP&L failed to make a good-
faith effort to settle, because it did not rationally evaluate its
risks and potential liability, nor did it make a good-faith
settlement offer or respond in good faith to Conte’s offer.
DP&L claims that the district court abused its discretion,
because DP&L maintained a good-faith, reasonable belief that
it was not liable for Conte’s injuries throughout this litigation.
DP&L points first to the magistrate judge’s recommendation
Nos. 98-4315; 99-4137 Conte v. General
Housewares Corp., et al.
15
6Rule 49(b) states, in pertinent part:
The court may submit to the jury, together with the appropriate
forms for a general verdict, written interrogatories upon one or
used to impeach Fralick’s testimony at trial that he did not
know that the primaries were energized.
Applying federal law to determine the admissibility of
Doll’s testimony, we conclude that the evidence was
erroneously excluded. See Barnes v. Owens-Corning
Fiberglas Corp., 201 F.3d 815, 829 (6th Cir. 2000). Because
the statements were offered to impeach Fralick’s trial
testimony and not for the truth of the matter asserted, they
were not hearsay. See FED . R. EVID . 801(c); United States v.
Causey, 834 F.2d 1277, 1282-83 (6th Cir. 1987), cert. denied,
486 U.S. 1034 (1988). Nonetheless, DP&L has made no
showing that this error was so prejudicial as to require a new
trial. As Conte pointed out, Large testified that he told
Fralick that the lines were hot; therefore, some evidence to
this effect was before the jury. DP&L argues that this
evidence would have helped to illuminate the question of the
painters’ reliance on DP&L’s undertaking to make their
workplace safe: if the jury concluded that painters knew the
lines were energized, then they could not have found that the
painters relied on DP&L’s conduct in using the extension
poles in the proximity of the primary wires. This argument
has two flaws. First, Doll’s testimony would not, in any case,
have been admissible as substantive evidence on this issue,
but merely as a way of impeaching Fralick’s testimony.
Second, the proffered evidence may help to show that Fralick
did not rely on DP&L, but it does not demonstrate anything
about Conte’s reliance. Therefore, we hold that the district
court did not abuse its discretion in refusing to grant a new
trial based on the erroneous exclusion of this evidence.
Finally, DP&L argues that it was entitled to a new trial
because it was prejudiced by the district court’s erroneous
amendment of the judgment under Federal Rule of Civil
Procedure 49(b).6 DP&L claimed that the jury’s special

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14 Conte v. General
Housewares Corp., et al.
Nos. 98-4315; 99-4137
Standard Fire Ins. Co., 936 F.2d 1474, 1487 & n.20 (6th Cir.
1991). Finding an abuse of discretion in this context requires
a “definite and firm conviction . . . that the court below
committed a clear error of judgment in the conclusion it
reached upon a weighing of the relevant factors.” Holmes v.
City of Massillon, 78 F.3d 1041, 1045 (6th Cir.) (quoting
Balani v. INS, 669 F.2d 1157, 1160 (6th Cir. 1982)), cert.
denied, 519 U.S. 935 (1996). Generally, a court may grant a
new trial under Rule 59 if the verdict is against the weight of
the evidence, if the damages award is excessive, or if the trial
was influenced by prejudice or bias, or otherwise unfair to the
moving party. See id. at 1045-46. When ruling on a new trial
motion claiming that the verdict was against the weight of the
evidence, the district court “may compare the opposing proofs
and weigh the evidence.” Toth v. Yoder Co., 749 F.2d 1190,
1197 (6th Cir. 1984). However, “while the district judge has
a duty to intervene in appropriate cases, the jury’s verdict
should be accepted if it is one which could reasonably have
been reached.” Id. (quoting Bruner v. Dunaway, 684 F.2d
422 (6th Cir. 1982), cert. denied, 459 U.S. 1171 (1983)).
In arguing that the verdict was against the weight of the
evidence, DP&L relies on the same arguments that it
employed in contending that the district court should have
granted its motion for judgment as a matter of law. For the
reasons discussed above in Part B.2., we hold that the jury’s
verdict in this case is one that could reasonably have been
reached, and therefore that the district court did not err in
denying DP&L’s motion for a new trial on this ground.
DP&L also argues that the district court should have
granted it a new trial, because it was prejudiced by the
erroneous exclusion of certain evidence. In particular, DP&L
attempted to have Don Doll testify that Stan Fralick (one of
the Kessler painters) told Doll after the accident that he knew
“the wires were hot, but not that hot.” The district court
refused to admit this testimony as hearsay. DP&L argues that
this testimony was admissible under Federal Rule of Evidence
613(b) as extrinsic evidence of a prior inconsistent statement,
Nos. 98-4315; 99-4137 Conte v. General
Housewares Corp., et al.
7
3The only act on the part of DP&L that could be characterized as a
“settlement” was its offer of $3.00 to Conte on the day prior to trial. As
DP&L explains, however, this “offer” was part of a scheme to convince
Conte to dismiss DP&L from the case: DP&L explained to Conte that it
would be to Conte’s advantage to have DP&L out of the case for a
number of reasons – including that DP&L intended to employ “kamikaze”
and “scorched earth” tactics and that DP&L was more prepared than GHC
and would bolster GHC’s defense.
to grant summary judgment in DP&L’s favor as evidence of
the reasonableness of DP&L’s belief in its own lack of
liability. Furthermore, DP&L claims that, contrary to the
district court’s findings, DP&L personnel constantly
discussed the possibility and desirability of settlement with
DP&L’s counsel. Finally, DP&L disputes the district court’s
finding that DP&L believed there was more than a fifty
percent chance that a jury would award Conte a verdict of up
to $500,000, which was based on the statement of DP&L’s
counsel that he thought that “[t]he likelihood of Plaintiff
recovering an award in excess of $500,000.00 from DP&L
[was] less than 50%.” J.A. at 2505 (Thomas Dep.).
We hold that the district court did not abuse its discretion
in awarding prejudgment interest to Conte. DP&L does not
dispute that it never made a real settlement offer to Conte,
despite Conte’s efforts to negotiate.3 Furthermore, although
there is evidence that DP&L’s counsel, Scott Thomas, made
some attempts to evaluate DP&L’s potential liability in this
action and that he kept in contact with DP&L management
about the possibility of settlement, the district court did not
abuse its discretion in finding that DP&L nonetheless did not
rationally evaluate its risk. Thomas’s deposition indicates
that there was only one written report generated by the law
firm and transmitted to DP&L regarding the possibility of
settlement in this case. Similarly, Paul Cynkar, the
Supervisor of Claims Administration at DP&L, testified that
DP&L did not make any written evaluations of the case based
on Thomas’s oral communications. Thomas’s testimony also
demonstrates minimal and unrigorous efforts on his part to

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8 Conte v. General
Housewares Corp., et al.
Nos. 98-4315; 99-4137
determine the likely verdict in this case. Cf. Loder v. Burger,
681 N.E.2d 1357, 1362-63 (Ohio Ct. App. 1996) (noting that
a claims adjuster’s decision to rely solely on her own
judgment as to the value of the case, without seeking outside
opinions, was some evidence of a failure rationally to evaluate
risk). Given this evidence, we cannot conclude that the
district court’s decision was so unreasonable, illogical, or
arbitrary as to constitute an abuse of discretion.
DP&L maintains that it reasonably believed throughout the
litigation that it could not be held liable, because it had never
undertaken a duty to de-energize the primary lines, and
because it did not own those lines and therefore was not
authorized to de-energize them unless GHC so instructed it.
Those defenses were simply no longer valid, however, in light
of the district court’s rulings, in denying DP&L’s motion for
summary judgment, that DP&L had undertaken a duty (the
scope of which was unclear), that there was an issue of fact as
to who had decided which lines would be de-energized, and
that DP&L’s lack of ownership of the power lines was not
dispositive. Therefore, DP&L could not maintain a
reasonable belief in its own nonliability on the theory it
describes. See id. at 1361 (holding that the defendants’
reliance on “faulty defenses” could not constitute a good faith,
objectively reasonable belief that they were not liable).
Furthermore, DP&L’s argument that it could have had a
reasonable belief that it was not liable because the factual
issues were strongly disputed, see Cooper v. Metal Sales
Manufacturing Corp., 660 N.E.2d 1245, 1255-56 (Ohio Ct.
App.), appeal not allowed, 655 N.E.2d 741 (Ohio 1995);
Worrell v. Multipress, Inc., 543 N.E.2d 1277, 1285 (Ohio
1989), does not carry the day. The courts in Worrell and
Cooper merely held that the trial court did not abuse its
discretion in refusing prejudgment interest where the factual
issues were hotly disputed; they did not hold that it was an
abuse of discretion to grant prejudgment interest in those
situations. See Cooper, 660 N.E.2d at 1255-56; Worrell, 543
N.E.2d at 1285. Moreover, the Ohio Supreme Court has also
Nos. 98-4315; 99-4137 Conte v. General
Housewares Corp., et al.
13
could find that DP&L owed a duty to Conte, regardless of the
fact that DP&L did not own the power lines or have the right
to de-energize them without GHC’s permission.
Having determined that DP&L did owe a duty to Conte, we
have no difficulty in concluding that the jury could reasonably
find that that duty included de-energizing the primary wires,
and that DP&L exhibited negligence with respect to that duty.
Based on the testimony of Nowicki, Large, and William
Hershfeld, a maintenance supervisor at GHC, the jury could
have concluded that DP&L had explicitly agreed to de-
energize the primary lines; or it could have found that DP&L
agreed to de-energize those lines that had to be de-energized
in order to render the workplace safe; or it could have found
that DP&L undertook together with GHC to decide which
lines should be de-energized. If it found any of those duties
to be included within the scope of DP&L’s undertaking, the
jury clearly could have found that DP&L performed
negligently by only de-energizing — or by only agreeing to
de-energize — the secondary lines attached to the legs of the
tank. Therefore, the district court did not err in denying
DP&L’s motion for judgment as a matter of law.
C. Motion for a New Trial
DP&L claims that the district court should have granted its
motion for a new trial under Federal Rule of Civil Procedure
59. DP&L contends that it was entitled to a new trial for
three reasons: first, the verdict was contrary to the weight of
the evidence; second, the district court erred in excluding
some of DP&L’s evidence as hearsay; and third, the district
court incorrectly modified the jury’s verdict under Federal
Rule of Civil Procedure 49(b). All of these claims are
without merit.
In a diversity case, federal law governs the district court’s
decision whether to grant a new trial on the basis of the
weight of the evidence, which is reviewed by this court for an
abuse of discretion. See J.C. Wyckoff & Assocs., Inc. v.

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12 Conte v. General
Housewares Corp., et al.
Nos. 98-4315; 99-4137
5The Wissel court noted that the Ohio Supreme Court had not
expressly adopted § 323, but that it had cited that section with approval.
See Wissel, 605 N.E.2d at 465. The Ohio Supreme Court still has not
spoken definitively on § 323(b) since Wissel was decided.
to its customer to exercise reasonable care when it elected to
respond to a customer’s call for emergency assistance”).5
It is undisputed in this case that DP&L undertook to aid
GHC in making its workplace safe, and it is undisputed that
Conte relied on the joint actions of GHC and DP&L when
performing his job of painting the water tower. In order to
show reliance under § 323(b), the Ohio Court of Appeals has
held, the plaintiff must show “actual or affirmative reliance,
i.e., reliance ‘based on specific actions or representations
which cause the persons to forego other alternatives of
protecting themselves.’” Wissel, 605 N.E.2d at 465 (citation
omitted). The fact that the Kessler employees waited for the
DP&L worker to de-energize the power lines before
beginning their work serves as evidence that they relied on
DP&L’s and GHC’s efforts to render the workplace safe and
that they would not have begun painting if they believed that
there was a possibility of electrical shock. Exactly what
DP&L undertook to do to render the GHC workplace safe is
less clear, however; but the scope of the duty undertaken by
DP&L was for the jury to determine. See Peyer v. Ohio
Water Serv. Co., 720 N.E.2d 195, 200 (Ohio Ct. App. 1998);
Detrick v. Columbia Sussex Corp., 629 N.E.2d 1081, 1082
(Ohio Ct. App. 1993).
Furthermore, the fact that DP&L did not own or exercise
control over GHC’s power lines does not affect the existence
of DP&L’s duty. A utility may still owe a duty to guard the
safety of customers and others, regardless of who actually
owns or controls the power lines. See Fortman v. Dayton
Power & Light Co., 609 N.E.2d 1296, 1299-1300 (Ohio Ct.
App. 1992). Therefore, if the jury found that DP&L had
undertaken a duty to make GHC’s workplace safe by de-
energizing the primaries as well as certain secondaries, it
Nos. 98-4315; 99-4137 Conte v. General
Housewares Corp., et al.
9
4One exception is the unpublished case Barna v. Randall Park
Associates, No. 66751, 1994 WL 716525 (Ohio Ct. App. Dec. 22, 1994),
dismissed, appeal not allowed, 648 N.E.2d 514 (Ohio 1995), cited by
DP&L, in which the court held that, in a second trial, the defendant had
a good-faith belief that it was not liable based, in part, on a directed
verdict in its favor in the first trial, despite the fact that that verdict was
overturned on appeal. However, the court of appeals noted that there
were compelling reasons for the defendant to believe that it could prevail
in the new trial, because it had located new witnesses and therefore could
present a new theory of nonliability. See id. at *2.
stated that conflicting evidence can be a factor weighing in
favor of a grant of prejudgment interest. See Moskovitz, 635
N.E.2d at 351-352. Thus, the mere existence of factual
conflicts is of little aid to DP&L’s case.
DP&L is correct that the magistrate judge’s
recommendation in its favor is some evidence that DP&L
could have had a reasonable, good-faith belief that it was not
liable. However, DP&L was not entitled to rely on this initial
belief throughout the litigation, especially since subsequent
events should have undermined that belief. Cf. id. at 351 (“If
[the defendant] ever had a good faith, objectively reasonable
belief that he had no liability, the fact that the ‘arbitration’
panel unanimously found against [him] should have apprised
him that a finding of liability at trial was possible, if not
probable.”). In the cases cited by DP&L for the proposition
that the magistrate judge’s recommendation demonstrates its
good faith, there were no subsequent events that undermined
the defendant’s belief in its lack of liability, and therefore
those cases are inapposite.4
DP&L is also correct that, as a matter of logic, its counsel’s
statement that he believed that there was less than a fifty
percent chance that DP&L would be held liable for more than
$500,000 does not mean that he therefore believed that there
was more than a fifty percent chance that it would be held
liable for an amount up to $500,000. Nonetheless, in light of
the substantial evidence supporting the district court’s
decision, this minor error in the court’s argumentation is not

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10 Conte v. General
Housewares Corp., et al.
Nos. 98-4315; 99-4137
sufficient to demonstrate an abuse of discretion. We therefore
uphold the award of prejudgment interest to Conte.
B. DP&L’s Motion for Judgment as a Matter of Law
1. Standard of Review
This court reviews de novo the district court’s disposition
of a motion for a judgment as a matter of law under Federal
Rule of Civil Procedure 50. See K&T Enters., Inc. v. Zurich
Ins. Co., 97 F.3d 171, 175 (6th Cir. 1996). To the extent that
DP&L claims that the district court erred in finding that
DP&L had assumed a duty of care, it raises a purely legal
question, see Mussivand v. David, 544 N.E.2d 265, 270 (Ohio
1989), which is also reviewed de novo by this court, see
Hostetler v. Consolidated Rail Corp., 123 F.3d 387, 390 (6th
Cir. 1997). However, DP&L also argues that the jury could
not have found, based on the evidence presented at trial, that
it assumed a specific duty to de-energize the primary lines or
that it failed to de-energize the secondary lines with
reasonable care. This court has held that the district court —
and this court in its de novo review — must apply state-law
standards to determine whether the evidence was sufficient to
support the jury’s verdict. See K&T Enters., 97 F.3d at 176.
Therefore, this court, like the district court, construes the
evidence most strongly in favor of the non-movant; if there is
substantial evidence supporting the jury verdict, about which
reasonable minds may disagree, the motion is properly
denied. See Hostetler, 123 F.3d at 390; see also Cardinal v.
Family Foot Care Ctrs., Inc., 532 N.E.2d 162, 164 (Ohio Ct.
App. 1987); OHIO C IV . R. 50(A)(4). Under Ohio law, the
credibility of the witnesses and the weight of the evidence are
not to be considered when ruling on such a motion. See
Cardinal, 532 N.E.2d at 164.
2. Appropriateness of the District Court’s Denial of
the Motions
To make out a claim for negligence, a plaintiff must show
the existence of a duty. See Estates of Morgan v. Fairfield
Nos. 98-4315; 99-4137 Conte v. General
Housewares Corp., et al.
11
Family Counseling Ctr., 673 N.E.2d 1311, 1319 (Ohio 1997).
“In Ohio, ‘[t]he existence of a duty depends on the
foreseeability of the injury . . . . The test for foreseeability is
whether a reasonably prudent person would have anticipated
that an injury was likely to result from the performance or
nonperformance of an act.’” Id. (quoting Menifee v. Ohio
Welding Prods., Inc., 472 N.E.2d 707, 710 (Ohio 1984))
(omission and alteration in original).
The district court was correct to find that DP&L owed a
duty of ordinary care to Conte, because DP&L voluntarily
undertook to perform services for the benefit of Conte and the
other Kessler painters. The Court of Appeals of Ohio adopted
the position of the Restatement (Second) of Torts § 323 in
Wissel v. Ohio High School Athletic Association, 605 N.E.2d
458 (Ohio Ct. App. 1992). That section states as follows:
One who undertakes, gratuitously or for consideration, to
render services to another which he should recognize as
necessary for the protection of the other's person or
things, is subject to liability to the other for physical
harm resulting from his failure to exercise reasonable
care to perform his undertaking, if
. . .
(b) the harm is suffered because of the other's reliance
upon the undertaking.
R ESTATEMENT (S ECOND ) OF TORTS § 323 (1965); see Wissel,
605 N.E.2d at 464-65; see also Best v. Energized Substation
Serv., Inc., 623 N.E.2d 158, 162 (Ohio Ct. App. 1993)
(“When one voluntarily assumes a duty to perform, and
another reasonably relies on that assumption, the act must be
performed with ordinary care.”); Smith v. Cincinnati Gas &
Elec. Co., 600 N.E.2d 325, 327 (Ohio Ct. App. 1991)
(holding that the defendant utility “assume[d] a general duty

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