1RECOMMENDED FOR FULL-TEXT PUBLICATIONPursuant to Sixth Circuit Rule 206ELECTRONIC CITATION: 2000 FED App. 0200P (6th Cir.)File Name: 00a0200p.06UNITED STATES COURT OF APPEALSFOR THE SIXTH CIRCUIT_________________ERIKCONTE,Plaintiff-Appellee,v.GENERALHOUSEWARESCORPORATION,Defendant,DAYTONPOWER&LIGHTCOMPANY,Defendant-Appellant.;>1Nos. 98-4315;99-4137Appeal from the United States District Courtfor the Southern District of Ohio at Dayton.No. 95-00451—Susan J. Dlott, District Judge.Argued: March 16, 2000Decided and Filed: June 14, 2000Before: NORRIS, MOORE, and COLE, Circuit Judges.2Conte v. GeneralHousewares Corp., et al.Nos. 98-4315; 99-4137_________________COUNSELARGUED: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. Plaintiffappellee Erik Conte successfully sued defendant GeneralHousewares Corp. (“GHC”) and defendant-appellant DaytonPower and Light Co. (“DP&L”) in connection with severepersonal injuries that he received as a result of a largeelectrical shock and obtained a verdict of $3.5 million.DP&L now appeals several of the district court’s rulings withrespect to that verdict and with respect to the award ofprejudgment interest against DP&L. Because there was noerror in the district court’s decisions to award prejudgmentinterest against DP&L and to deny DP&L’s motions forjudgment as a matter of law, a new trial, and relief from theaward of prejudgment interest, weAFFIRMthose rulings ofthe district court, and weREMANDfor recalculation ofDP&L’s liability in light of the partial satisfaction of thejudgment by GHC and the accrued postjudgment interest.Nos. 98-4315; 99-4137Conte v. GeneralHousewares Corp., et al.19merely because its co-obligor settles with the plaintiff afterthe verdict. Although DP&L cites several cases thatpurportedly hold to the contrary, Conte is correct in pointingout that those cases either involved preverdict settlements orverdicts that legitimately apportioned damages amongdefendant tortfeasors. Those cases are therefore not apposite.For these reasons, we hold that the district court did not abuseits discretion in refusing to relieve DP&L from having to payprejudgment interest on the entire judgment.Additionally, DP&L claims that it is entitled to a reductionof the judgment against it based on GHC’s settlement withConte, in partial satisfaction of the judgment, for $3.675million. Given our holding that DP&L is required to payprejudgment interest, the parties do not appear to disagreeabout the amount for which DP&L remains liable: the entirejudgment of $3.5 million, plus the prejudgment interest onthat amount ($958,904.10), minus the $3.675 million paid byGHC, plus the appropriate postjudgment interest. Since weare remanding the case to the district court for the calculationof postjudgment interest, we suggest that the district judgeamend the judgment to reflect the payment of $3.675 millionby GHC and the revised amount of DP&L’s liability,consistent with this opinion.III. CONCLUSIONFor the foregoing reasons, weAFFIRMthe district court’sjudgment andREMANDfor recalculation of DP&L’sliability in light of the accrued postjudgment interest and thepartial satisfaction of the judgment by GHC.18Conte v. GeneralHousewares Corp., et al.Nos. 98-4315; 99-41377Indeed, DP&L’s argument, carried to its logical conclusion, wouldappear to allow a party always to avoid paying prejudgment interestmerely by paying the underlying judgment in full and then claiming thatthere was no longer a judgment on which to pay interest.D. Motion for Relief from the JudgmentApplying federal law, this court reviews for an abuse ofdiscretion the district court’s decision to grant or deny a Rule60(b) motion in a diversity case.SeeDavis v. JellicoCommunity Hosp. Inc., 912 F.2d 129, 132-33 (6th Cir. 1990).DP&L contends that the district court abused its discretion indenying DP&L’s motion for relief from the judgment underFederal Rule of Civil Procedure 60(b)(5) on the ground thatthe judgment has been partially satisfied.First, DP&L argues that it should now be relieved ofliability for the prejudgment interest, because, due to GHC’spayment of the full amount of the underlying $3.5 millionjudgment, there is no longer a judgment on whichprejudgment interest may be based. Although neither partyhas cited published Ohio cases that are directly on point, as amatter of logic it is clear that a prejudgment interest awardcannot be eradicated by a postjudgment settlement for theamount of the jury verdict, since the prejudgment interest wasmerged with the amount of the jury verdict to form the totaljudgment.SeeNakoff v. Fairview Gen. Hosp., 694 N.E.2d107, 108 (Ohio Ct. App.),appeal not allowed, 680 N.E.2d1022 (Ohio 1997). It would therefore be inaccurate to statethat the judgment has been fully satisfied by GHC’s paymentof $3.675 million after the prejudgment interest was awardedagainst DP&L.7Moreover, it is irrelevant for the purposes ofprejudgment interest that the amount of the verdict is paidsubsequent to the verdict, because prejudgment interest isintended to compensate the plaintiff for the delay between thetime 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 notrelieved of the requirement to pay prejudgment interestNos. 98-4315; 99-4137Conte v. GeneralHousewares Corp., et al.31As explained by Nowicki, the difference between primary lines andsecondary lines is that “primaries” are generally uninsulated and carrybetween 7200 and 12,500 volts of electricity, and “secondaries” aregenerally insulated and carry less than 600 volts.I. BACKGROUNDErik Conte, an employee of Kessler Tank Co., was sent,along with two other Kessler employees, to paint an elevatedwater tank on the premises of General Housewares Corp. inSidney, Ohio on June 10, 1995. The water tank wassurrounded by high-voltage electrical wires, some of whichhad been de-energized by a DP&L employee at the request ofGHC. Conte was severely injured when the extension pole hewas using came into contact with one or more of theenergized power lines, causing him to receive a largeelectrical shock.The facts surrounding this accident were disputed. It seemsthat GHC’s maintenance manager, Don Doll, contactedDayton Power & Light to inquire about having some powerlines de-energized in preparation for the painting. The DP&Lemployees who initially inspected the GHC siterecommended a total power outage, but a GHC representativetold Mike Nowicki, a supervisor at DP&L, that GHC was notwilling to undergo a total outage, because it needed to haveenough power to run the computers and other devices in itsfactory building. All the parties agree on these facts, but theydo not agree on what happened next. There was conflictingtestimony at trial concerning which power lines were to beleft energized and who made that decision. Ultimately, MikeLarge, a technician from DP&L, appeared at GHC on June 10,1995, and de-energized only those secondary wires attachedto the legs of the water tank, leaving the primaries and theother secondaries energized.1The Kessler employeesproceeded to paint the tank and, while suspended from abotswain chair, Erik Conte accidentally allowed his sixteenfoot extension pole to make contact with one or more of the4Conte v. GeneralHousewares Corp., et al.Nos. 98-4315; 99-41372Since Conte is a citizen of Massachusetts, GHC is a Delawarecorporation with its principal place of business in Ohio, DP&L is an Ohiocorporation with its principal place of business in Ohio, and the amountin controversy was jurisdictionally adequate, the district court properlyassumed jurisdiction under 28 U.S.C. § 1332.primary lines, which caused him severe burns anddisfigurement.Conte filed suit against GHC and DP&L in federal court onNovember 29, 1995, for negligence, misrepresentation, andbreach of contract.2He subsequently amended his complaintto omit the claims of misrepresentation and breach of contractagainst DP&L. The defendants moved for summaryjudgment. The magistrate judge recommended granting thesummary judgment motions, finding in particular that Conte’sinjuries were not foreseeable by DP&L, since DP&L did notknow that the Kessler workers would use a long extensionpole to paint the tank; furthermore, the magistrate judge foundthat DP&L exercised ordinary care in de-energizing the powerlines. The district court denied the summary judgmentmotions, however, finding instead that there were materialquestions of fact as to who determined which lines were to bede-energized and whether the process of de-energizing wasperformed with due care. The case went to trial, and Contereceived a $3.5 million verdict. On September 11, 1998, thedistrict court granted Conte’s motion for prejudgment interestin the amount of $958,904.10 against DP&L only, finding thatDP&L had failed to negotiate in good faith with Conte. Thejury had erred, however, by apportioning liability for theverdict between the defendants ($3 million to GHC and$500,000 to DP&L) where the defendants were jointly andseverally liable under Ohio law. The district court, with theagreement of counsel for all sides, therefore amended thejudgment on October 14, 1998, to reflect the joint and severalliability of GHC and DP&L for $3.5 million and theprejudgment interest award against DP&L. DP&L then fileda motion to amend the amended judgment entry, requestingthat it state that prejudgment interest against DP&L would beNos. 98-4315; 99-4137Conte v. GeneralHousewares Corp., et al.17attributable to the plaintiff, then joint and several liabilitywould lie.”). The jury was therefore not entitled to apportionthe damages between the two tortfeasors.SeeGeorge 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’sanswers to the special interrogatories, which found bothDP&L and GHC negligent and Conte not contributorilynegligent — thereby invoking joint and several liability underOhio law — are inconsistent with the general verdict, whichapportioned fault between DP&L and GHC. Therefore, thedistrict court was entitled under Rule 49(b) to enter thejudgment in accordance with the interrogatory answers andnotwithstanding the verdict.DP&L argues that the interrogatory answers and the generalverdict were consistent when construed in light of the districtcourt’s “proximate cause” charge, which instructed the jurythat “[e]ach defendant must respond for only those losses andinjuries which are the direct and proximate result of itsnegligent act.” J.A. at 2239 (Jury Charge). This argument iswithout merit. The requirement of proximate causation doesnot eliminate joint and several liability: joint and severalliability implies that the joint acts of both defendantsproximately caused the plaintiff’s injuries.See18 OHIOJUR.3dContribution, Indemnity, and Subrogation§§ 83, 84(1980). Therefore, under joint and several liability, bothdefendants are held responsible for all of the plaintiff’sinjuries, because their joint acts were the proximate cause ofall of those injuries.For these reasons, we hold that the district court correctlyamended the judgment under Rule 49(b), and therefore that itdid not abuse its discretion in refusing to grant thedefendant’s motion for a new trial on this basis.16Conte v. GeneralHousewares Corp., et al.Nos. 98-4315; 99-4137more issues of fact the decision of which is necessary to averdict. . . . When the answers are consistent with each other butone or more is inconsistent with the general verdict, judgmentmay be entered pursuant to Rule 58 in accordance with theanswers, notwithstanding the general verdict, or the court mayreturn the jury for further consideration of its answers andverdict or may order a new trial.FED.R.CIV.P.49(b).interrogatory responses, finding that both DP&L and GHCwere negligent and that Conte was not contributorilynegligent, were not inconsistent with the “general verdict”forms, which found DP&L liable for $500,000 and GHCliable for $3 million. Therefore, it claims, the district courtdid not have the authority under Federal Rule of CivilProcedure 49(b) to correct the judgment entry. The districtcourt found that the answers were inconsistent with thegeneral verdict and declined to grant DP&L’s motion for anew trial.In a diversity case, federal law governs most issuessurrounding the utilization of special interrogatories and theproblem of inconsistent answers, including the effect ofinconsistency between a general verdict and one or morespecial interrogatories.SeeJewell v. Holzer Hosp. Found.,Inc., 899 F.2d 1507, 1510 (6th Cir. 1990). However, federalcourts look to state law to determine whether a verdict isinconsistent.SeeTipton v. Michelin Tire Co., 101 F.3d 1145,1148 n.4 (6th Cir. 1996).DP&L’s objection to the amended judgment is withoutmerit. As the district court correctly found, DP&L and GHCwere jointly and severally liable as a matter of Ohio law,because they were joint tortfeasors, and Conte was notcontributorily negligent.SeeOHIOREV.CODEANN.§ 2315.19;Eberly v. A-P Controls, Inc., 572 N.E.2d 633, 638-39 (Ohio 1991) (“[S]everal liability [is] triggered onlyupona finding of negligence on the part of the plaintiff. . . . If ajury return[s] answers to interrogatories finding no negligenceNos. 98-4315; 99-4137Conte v. GeneralHousewares Corp., et al.5calculated only after contribution rights between DP&L andGHC had been determined, or, alternatively, that theprejudgment interest award against DP&L be calculated onlyon the amount of $500,000. The district court then denied themotion to amend the amended judgment, and DP&Lappealed.Meanwhile, on September 28, 1998, GHC settled withConte for $3.675million. DP&L therefore filed a motionpursuant to Federal Rule of Civil Procedure 60(b)(5) for relieffrom the judgment to the extent of the settlement amount.The district court denied the order as superfluous. DP&Lthen appealed that order.On appeal, DP&L makes several claims of error. First, itargues that the district court abused its discretion in grantingprejudgment interest to Conte. It also claims that the districtcourt erred in denying DP&L’s motion for judgment as amatter of law and abused its discretion in denying DP&L’smotion for a new trial. Finally, DP&L contends that thedistrict court’s denial of DP&L’s motion for relief from thejudgment was in error.II. ANALYSISA. Prejudgment InterestIn a diversity case, state law governs the district court’sdecision whether to award prejudgment interest,seeDiggs v.Pepsi-Cola Metro. Bottling Co., 861 F.2d 914, 924 (6th Cir.1988), which is reviewed by this court for an abuse ofdiscretion,seeStallworth v. City of Cleveland, 893 F.2d 830,836 (6th Cir. 1990) (applying Ohio law). The Ohio courtshave defined an abuse of discretion, in the context ofprejudgment interest awards, as a result “so palpably andgrossly violative of fact and logic that it evidences not theexercise of will but perversity of will, not the exercise ofjudgment but defiance thereof, not the exercise of reason butrather of passion or bias.”State v. Jenkins, 473 N.E.2d 264,313 (Ohio 1984) (quotingSpalding v. Spalding, 94 N.W.2d6Conte v. GeneralHousewares Corp., et al.Nos. 98-4315; 99-4137810, 811-12 (Mich. 1959)),cert. denied, 473 U.S. 1032(1985).Under Ohio law, a plaintiff is entitled to prejudgmentinterest if the court determines “that the party required to paythe money failed to make a good faith effort to settle the caseand that the party to whom the money is to be paid did not failto make a good faith effort to settle the case.” OHIOREV.CODEANN. § 1343.03(C) (Banks-Baldwin 1994). The OhioSupreme Court has held that a party has not failed to make agood-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 theproceedings, and (4) made a good faith monetarysettlement offer or responded in good faith to an offerfrom the other party. If a party has a good faith,objectively reasonable belief that he has no liability, heneed not make a monetary settlement offer.Kalain v. Smith, 495 N.E.2d 572 (Ohio 1986), syllabus. InMoskovitz v. Mt. Sinai Medical Center, 635 N.E.2d 331(Ohio),cert. denied, 513 U.S. 1059 (1994), the SupremeCourt of Ohio noted that the last sentence “should be strictlyconstrued so as to carry out the purposes of R.C. 1343.03(C).”Id.at 348. Although the burden of proof is on the partyseeking the prejudgment interest, that burden does not requireshowing bad faith by the other party, but rather only a lack ofgood faith.See id.The district court held that DP&L failed to make a goodfaith effort to settle, because it did not rationally evaluate itsrisks and potential liability, nor did it make a good-faithsettlement 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 thatit was not liable for Conte’s injuries throughout this litigation.DP&L points first to the magistrate judge’s recommendationNos. 98-4315; 99-4137Conte v. GeneralHousewares Corp., et al.156Rule 49(b) states, in pertinent part:The court may submit to the jury, together with the appropriateforms for a general verdict, written interrogatories upon one orused to impeach Fralick’s testimony at trial that he did notknow that the primaries were energized.Applying federal law to determine the admissibility ofDoll’s testimony, we conclude that the evidence waserroneously excluded.SeeBarnes v. Owens-CorningFiberglas Corp., 201 F.3d 815, 829 (6th Cir. 2000). Becausethe statements were offered to impeach Fralick’s trialtestimony and not for the truth of the matter asserted, theywere not hearsay.SeeFED.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 noshowing that this error was so prejudicial as to require a newtrial. As Conte pointed out, Large testified that he toldFralick that the lines were hot; therefore, some evidence tothis effect was before the jury. DP&L argues that thisevidence would have helped to illuminate the question of thepainters’ reliance on DP&L’s undertaking to make theirworkplace safe: if the jury concluded that painters knew thelines were energized, then they could not have found that thepainters relied on DP&L’s conduct in using the extensionpoles in the proximity of the primary wires. This argumenthas 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 Fralickdid not rely on DP&L, but it does not demonstrate anythingabout Conte’s reliance. Therefore, we hold that the districtcourt did not abuse its discretion in refusing to grant a newtrial based on the erroneous exclusion of this evidence.Finally, DP&L argues that it was entitled to a new trialbecause it was prejudiced by the district court’s erroneousamendment of the judgment under Federal Rule of CivilProcedure 49(b).6DP&L claimed that the jury’s special14Conte v. GeneralHousewares Corp., et al.Nos. 98-4315; 99-4137Standard Fire Ins. Co., 936 F.2d 1474, 1487 & n.20 (6th Cir.1991). Finding an abuse of discretion in this context requiresa “definite and firm conviction . . . that the court belowcommitted a clear error of judgment in the conclusion itreached upon a weighing of the relevant factors.”Holmes v.City of Massillon, 78 F.3d 1041, 1045 (6th Cir.) (quotingBalani v. INS, 669 F.2d 1157, 1160 (6th Cir. 1982)),cert.denied, 519 U.S. 935 (1996). Generally, a court may grant anew trial under Rule 59 if the verdict is against the weight ofthe evidence, if the damages award is excessive, or if the trialwas influenced by prejudice or bias, or otherwise unfair to themoving party.See id.at 1045-46. When ruling on a new trialmotion claiming that the verdict was against the weight of theevidence, the district court “may compare the opposing proofsand weigh the evidence.”Toth v. Yoder Co., 749 F.2d 1190,1197 (6th Cir. 1984). However, “while the district judge hasa duty to intervene in appropriate cases, the jury’s verdictshould be accepted if it is one which could reasonably havebeen reached.”Id.(quotingBruner v. Dunaway, 684 F.2d422 (6th Cir. 1982),cert. denied, 459 U.S. 1171 (1983)).In arguing that the verdict was against the weight of theevidence, DP&L relies on the same arguments that itemployed in contending that the district court should havegranted its motion for judgment as a matter of law. For thereasons discussed above in Part B.2., we hold that the jury’sverdict in this case is one that could reasonably have beenreached, and therefore that the district court did not err indenying DP&L’s motion for a new trial on this ground.DP&L also argues that the district court should havegranted it a new trial, because it was prejudiced by theerroneous exclusion of certain evidence. In particular, DP&Lattempted to have Don Doll testify that Stan Fralick (one ofthe Kessler painters) told Doll after the accident that he knew“the wires were hot, but not that hot.” The district courtrefused to admit this testimony as hearsay. DP&L argues thatthis testimony was admissible under Federal Rule of Evidence613(b) as extrinsic evidence of a prior inconsistent statement,Nos. 98-4315; 99-4137Conte v. GeneralHousewares Corp., et al.73The 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. AsDP&L explains, however, this “offer” was part of a scheme to convinceConte to dismiss DP&L from the case: DP&L explained to Conte that itwould be to Conte’s advantage to have DP&L out of the case for anumber of reasons – including that DP&L intended to employ “kamikaze”and “scorched earth” tactics and that DP&L was more prepared than GHCand would bolster GHC’s defense.to grant summary judgment in DP&L’s favor as evidence ofthe reasonableness of DP&L’s belief in its own lack ofliability. Furthermore, DP&L claims that, contrary to thedistrict court’s findings, DP&L personnel constantlydiscussed the possibility and desirability of settlement withDP&L’s counsel. Finally, DP&L disputes the district court’sfinding that DP&L believed there was more than a fiftypercent chance that a jury would award Conte a verdict of upto $500,000, which was based on the statement of DP&L’scounsel that he thought that “[t]he likelihood of Plaintiffrecovering 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 discretionin awarding prejudgment interest to Conte. DP&L does notdispute that it never made a real settlement offer to Conte,despite Conte’s efforts to negotiate.3Furthermore, althoughthere is evidence that DP&L’s counsel, Scott Thomas, madesome attempts to evaluate DP&L’s potential liability in thisaction and that he kept in contact with DP&L managementabout the possibility of settlement, the district court did notabuse its discretion in finding that DP&L nonetheless did notrationally evaluate its risk. Thomas’s deposition indicatesthat there was only one written report generated by the lawfirm and transmitted to DP&L regarding the possibility ofsettlement in this case. Similarly, Paul Cynkar, theSupervisor of Claims Administration at DP&L, testified thatDP&L did not make any written evaluations of the case basedon Thomas’s oral communications. Thomas’s testimony alsodemonstrates minimal and unrigorous efforts on his part to8Conte v. GeneralHousewares Corp., et al.Nos. 98-4315; 99-4137determine the likely verdict in this case.Cf.Loder v. Burger,681 N.E.2d 1357, 1362-63 (Ohio Ct. App. 1996) (noting thata claims adjuster’s decision to rely solely on her ownjudgment as to the value of the case, without seeking outsideopinions, was some evidence of a failure rationally to evaluaterisk). Given this evidence, we cannot conclude that thedistrict court’s decision was so unreasonable, illogical, orarbitrary as to constitute an abuse of discretion.DP&L maintains that it reasonably believed throughout thelitigation that it could not be held liable, because it had neverundertaken a duty to de-energize the primary lines, andbecause it did not own those lines and therefore was notauthorized to de-energize them unless GHC so instructed it.Those defenses were simply no longer valid, however, in lightof the district court’s rulings, in denying DP&L’s motion forsummary judgment, that DP&L had undertaken a duty (thescope of which was unclear), that there was an issue of fact asto who had decided which lines would be de-energized, andthat DP&L’s lack of ownership of the power lines was notdispositive. Therefore, DP&L could not maintain areasonable belief in its own nonliability on the theory itdescribes.Seeid.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 areasonable belief that it was not liable because the factualissues were strongly disputed,seeCooper v. Metal SalesManufacturing 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 (Ohio1989), does not carry the day. The courts inWorrellandCoopermerely held that the trial court didnotabuse itsdiscretion inrefusingprejudgment interest where the factualissues were hotly disputed; they did not hold that it was anabuse of discretion to grant prejudgment interest in thosesituations.SeeCooper, 660 N.E.2d at 1255-56;Worrell, 543N.E.2d at 1285. Moreover, the Ohio Supreme Court has alsoNos. 98-4315; 99-4137Conte v. GeneralHousewares Corp., et al.13could find that DP&L owed a duty to Conte, regardless of thefact that DP&L did not own the power lines or have the rightto de-energize them without GHC’s permission.Having determined that DP&L did owe a duty to Conte, wehave no difficulty in concluding that the jury could reasonablyfind 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 WilliamHershfeld, a maintenance supervisor at GHC, the jury couldhave concluded that DP&L had explicitly agreed to deenergize the primary lines; or it could have found that DP&Lagreed to de-energize those lines that had to be de-energizedin order to render the workplace safe; or it could have foundthat DP&L undertook together with GHC to decide whichlines should be de-energized. If it found any of those dutiesto be included within the scope of DP&L’s undertaking, thejury clearly could have found that DP&L performednegligently by only de-energizing — or by only agreeing tode-energize — the secondary lines attached to the legs of thetank. Therefore, the district court did not err in denyingDP&L’s motion for judgment as a matter of law.C. Motion for a New TrialDP&L claims that the district court should have granted itsmotion for a new trial under Federal Rule of Civil Procedure59. DP&L contends that it was entitled to a new trial forthree reasons: first, the verdict was contrary to the weight ofthe evidence; second, the district court erred in excludingsome of DP&L’s evidence as hearsay; and third, the districtcourt incorrectly modified the jury’s verdict under FederalRule of Civil Procedure 49(b). All of these claims arewithout merit.In a diversity case, federal law governs the district court’sdecision whether to grant a new trial on the basis of theweight of the evidence, which is reviewed by this court for anabuse of discretion.SeeJ.C. Wyckoff & Assocs., Inc. v.12Conte v. GeneralHousewares Corp., et al.Nos. 98-4315; 99-41375TheWisselcourt noted that the Ohio Supreme Court had notexpressly adopted § 323, but that it had cited that section with approval.SeeWissel, 605 N.E.2d at 465. The Ohio Supreme Court still has notspoken definitively on § 323(b) sinceWisselwas decided.to its customer to exercise reasonable care when it elected torespond to a customer’s call for emergency assistance”).5It is undisputed in this case that DP&L undertook to aidGHC in making its workplace safe, and it is undisputed thatConte relied on the joint actions of GHC and DP&L whenperforming his job of painting the water tower. In order toshow reliance under § 323(b), the Ohio Court of Appeals hasheld, the plaintiff must show “actual or affirmative reliance,i.e., reliance ‘based on specific actions or representationswhich cause the persons to forego other alternatives ofprotecting themselves.’”Wissel, 605 N.E.2d at 465 (citationomitted). The fact that the Kessler employees waited for theDP&L worker to de-energize the power lines beforebeginning their work serves as evidence that they relied onDP&L’s and GHC’s efforts to render the workplace safe andthat they would not have begun painting if they believed thatthere was a possibility of electrical shock. Exactly whatDP&L undertook to do to render the GHC workplace safe isless clear, however; but the scope of the duty undertaken byDP&L was for the jury to determine.SeePeyer v. OhioWater 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 exercisecontrol over GHC’s power lines does not affect the existenceof DP&L’s duty. A utility may still owe a duty to guard thesafety of customers and others, regardless of who actuallyowns or controls the power lines.SeeFortman v. DaytonPower & Light Co., 609 N.E.2d 1296, 1299-1300 (Ohio Ct.App. 1992). Therefore, if the jury found that DP&L hadundertaken a duty to make GHC’s workplace safe by deenergizing the primaries as well as certain secondaries, itNos. 98-4315; 99-4137Conte v. GeneralHousewares Corp., et al.94One exception is the unpublished caseBarna v. Randall ParkAssociates, No. 66751, 1994 WL 716525 (Ohio Ct. App. Dec. 22, 1994),dismissed, appeal not allowed, 648 N.E.2d 514 (Ohio 1995), cited byDP&L, in which the court held that, in a second trial, the defendant hada good-faith belief that it was not liable based, in part, on a directedverdict in its favor in the first trial, despite the fact that that verdict wasoverturned on appeal. However, the court of appeals noted that therewere compelling reasons for the defendant to believe that it could prevailin the new trial, because it had located new witnesses and therefore couldpresent a new theory of nonliability.See id.at *2.stated that conflicting evidence can be a factor weighing infavor of a grant of prejudgment interest.SeeMoskovitz, 635N.E.2d at 351-352. Thus, the mere existence of factualconflicts is of little aid to DP&L’s case.DP&L is correct that the magistrate judge’srecommendation in its favor is some evidence that DP&Lcould have had a reasonable, good-faith belief that it was notliable. However, DP&L was not entitled to rely on this initialbelief throughout the litigation, especially since subsequentevents should have undermined that belief.Cf.id.at 351 (“If[the defendant] ever had a good faith, objectively reasonablebelief that he had no liability, the fact that the ‘arbitration’panel unanimously found against [him] should have apprisedhim that a finding of liability at trial was possible, if notprobable.”). In the cases cited by DP&L for the propositionthat the magistrate judge’s recommendation demonstrates itsgood faith, there were no subsequent events that underminedthe defendant’s belief in its lack of liability, and thereforethose cases are inapposite.4DP&L is also correct that, as a matter of logic, its counsel’sstatement that he believed that there was less than a fiftypercent chance that DP&L would be held liable for more than$500,000 does not mean that he therefore believed that therewas more than a fifty percent chance that it would be heldliable for an amount up to $500,000. Nonetheless, in light ofthe substantial evidence supporting the district court’sdecision, this minor error in the court’s argumentation is not10Conte v. GeneralHousewares Corp., et al.Nos. 98-4315; 99-4137sufficient to demonstrate an abuse of discretion. We thereforeuphold the award of prejudgment interest to Conte.B. DP&L’s Motion for Judgment as a Matter of Law1. Standard of ReviewThis court reviews de novo the district court’s dispositionof a motion for a judgment as a matter of law under FederalRule of Civil Procedure 50.SeeK&T Enters., Inc. v. ZurichIns. Co., 97 F.3d 171, 175 (6th Cir. 1996). To the extent thatDP&L claims that the district court erred in finding thatDP&L had assumed a duty of care, it raises a purely legalquestion,seeMussivand v. David, 544 N.E.2d 265, 270 (Ohio1989), which is also reviewed de novo by this court,seeHostetler v. Consolidated Rail Corp., 123 F.3d 387, 390 (6thCir. 1997). However, DP&L also argues that the jury couldnot have found, based on the evidence presented at trial, thatit assumed a specific duty to de-energize the primary lines orthat it failed to de-energize the secondary lines withreasonable care. This court has held that the district court —and this court in its de novo review — must apply state-lawstandards to determine whether the evidence was sufficient tosupport the jury’s verdict.SeeK&T Enters., 97 F.3d at 176.Therefore, this court, like the district court, construes theevidence most strongly in favor of the non-movant; if there issubstantial evidence supporting the jury verdict, about whichreasonable minds may disagree, the motion is properlydenied.SeeHostetler, 123 F.3d at 390;see alsoCardinal v.Family Foot Care Ctrs., Inc., 532 N.E.2d 162, 164 (Ohio Ct.App. 1987); OHIOCIV.R. 50(A)(4). Under Ohio law, thecredibility of the witnesses and the weight of the evidence arenot to be considered when ruling on such a motion.SeeCardinal, 532 N.E.2d at 164.2. Appropriateness of the District Court’s Denial ofthe MotionsTo make out a claim for negligence, a plaintiff must showthe existence of a duty.SeeEstates of Morgan v. FairfieldNos. 98-4315; 99-4137Conte v. GeneralHousewares Corp., et al.11Family Counseling Ctr., 673 N.E.2d 1311, 1319 (Ohio 1997).“In Ohio, ‘[t]he existence of a duty depends on theforeseeability of the injury . . . . The test for foreseeability iswhether a reasonably prudent person would have anticipatedthat an injury was likely to result from the performance ornonperformance of an act.’”Id.(quotingMenifee v. OhioWelding 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 aduty of ordinary care to Conte, because DP&L voluntarilyundertook to perform services for the benefit of Conte and theother Kessler painters. The Court of Appeals of Ohio adoptedthe position of the Restatement (Second) of Torts § 323 inWissel v. Ohio High School Athletic Association, 605 N.E.2d458 (Ohio Ct. App. 1992). That section states as follows:One who undertakes, gratuitously or for consideration, torender services to another which he should recognize asnecessary for the protection of the other's person orthings, is subject to liability to the other for physicalharm resulting from his failure to exercise reasonablecare to perform his undertaking, if. . .(b) the harm is suffered because of the other's relianceupon the undertaking.RESTATEMENT(SECOND)OFTORTS§ 323 (1965);seeWissel,605 N.E.2d at 464-65;see alsoBest v. Energized SubstationServ., Inc., 623 N.E.2d 158, 162 (Ohio Ct. App. 1993)(“When one voluntarily assumes a duty to perform, andanother reasonably relies on that assumption, the act must beperformed 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