1

RECOMMENDED FOR FULL-

Pursuant to Sixth Circ

ELECTRONIC CITATION: 2000 F

File Name: 00a0

UNITED STATES COU

FOR THE SIXTH 

____________

ERIK CONTE,

Plaintiff-Appellee,

v.

GENERAL HOUSEWARESCORPORATION,

Defendant,

DAYTON POWER & LIGHTCOMPANY,

Defendant-Appellant.

Appeal from the United St

for the Southern District o

No. 95-00451—Susan J. D

Argued: March 

Decided and Filed: J

Before: NORRIS, MOORE, and 
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. Plaintiffappellee Erik Conte successfully sued defendant General

Housewares 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, we AFFIRM those rulings of

the district court, and we REMAND for recalculation ofDP&L’s liability in light of the partial satisfaction of thejudgment by GHC and the accrued postjudgment interest.

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Hous

merely because its co-obligor settthe verdict. Although DP&L purportedly hold to the contrary, Cout that those cases either involved verdicts that legitimately appodefendant tortfeasors. Those cases For these reasons, we hold that the its discretion in refusing to relieve prejudgment interest on the entire 

Additionally, DP&L claims that 

of the judgment against it based oConte, in partial satisfaction of million. Given our holding that prejudgment interest, the parties about the amount for which DP&L judgment of $3.5 million, plus ththat amount ($958,904.10), minus GHC, plus the appropriate postjudare remanding the case to the distriof postjudgment interest, we suggamend the judgment to reflect the pby GHC and the revised amouconsistent with this opinion.

III. CONCLU

For the foregoing reasons, we AF

judgment and REMAND for r

liability in light of the accrued pospartial satisfaction of the judgmen
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 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 Judgment

Applying federal law, this court reviews for an abuse of

discretion the district court’s decision to grant or deny a Rule60(b) motion in a diversity case. See Davis 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 of

liability 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. See Nakoff v. Fairview Gen. Hosp., 694 N.E.2d

107, 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.7 Moreover, it is irrelevant for the purposes of

prejudgment 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 interest

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1As explained by Nowicki, the differ

secondary lines is that “primaries” are gbetween 7200 and 12,500 volts of elecgenerally insulated and carry less than 60

I. BACKGRO

Erik Conte, an employee of Ke

along with two other Kessler emplwater tank on the premises of GenSidney, Ohio on June 10, 1995surrounded by high-voltage electrhad been de-energized by a DP&L GHC. Conte was severely injured wwas using came into contact wenergized power lines, causing electrical shock.

The facts surrounding this accide

that GHC’s maintenance managDayton Power & Light to inquire lines de-energized in preparation foemployees who initially insrecommended a total power outagetold Mike Nowicki, a supervisor at willing to undergo a total outage, enough power to run the computefactory building. All the parties agdo not agree on what happened netestimony at trial concerning whicleft energized and who made that dLarge, a technician from DP&L, ap1995, and de-energized only those to the legs of the water tank, leavother secondaries energized.1 proceeded to paint the tank and, botswain chair, Erik Conte accidefoot extension pole to make conta
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 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 on

November 29, 1995, for negligence, misrepresentation, andbreach of contract.2 He 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 be

Nos. 98-4315; 99-4137 

Hous

attributable to the plaintiff, then would lie.”). The jury was therefothe damages between the two torScrambling Co. v. Tennant Drug C(Ohio Ct. App. 1927); Cincinnati 153 N.E. 116, 116-17 (Ohio Ct. answers to the special interrogaDP&L and GHC negligent and negligent — thereby invoking joint Ohio law — are inconsistent with apportioned fault between DP&L district court was entitled under judgment in accordance with the notwithstanding the verdict.

DP&L argues that the interrogato

verdict were consistent when conscourt’s “proximate cause” chargethat “[e]ach defendant must responinjuries which are the direct annegligent act.” J.A. at 2239 (Jury Cwithout merit. The requirement of not eliminate joint and several liliability implies that the joint proximately caused the plaintiff’s 3d Contribution, Indemnity, and (1980). Therefore, under joint adefendants are held responsible injuries, because their joint acts wall of those injuries.

For these reasons, we hold that 

amended the judgment under Rule did not abuse its discretion in defendant’s motion for a new trial 
16 Conte v. General

Housewares Corp., et al.

Nos. 98-4315; 99-4137

more 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 issues

surrounding the utilization of special interrogatories and theproblem of inconsistent answers, including the effect ofinconsistency between a general verdict and one or morespecial interrogatories. See Jewell 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. 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 GHCwere jointly and severally liable as a matter of Ohio law,because they were joint tortfeasors, and Conte was notcontributorily negligent. See OHIO 

REV. CODE 

ANN.

§ 2315.19; Eberly v. A-P Controls, Inc., 572 N.E.2d 633, 638-39 (Ohio 1991) (“[S]everal liability [is] triggered only upona finding of negligence on the part of the plaintiff. . . . If ajury return[s] answers to interrogatories finding no negligence

Nos. 98-4315; 99-4137 

Hous

calculated only after contribution GHC had been determined, orprejudgment interest award againson the amount of $500,000. The dimotion to amend the amended appealed.

Meanwhile, on September 28, 

Conte for $3.675 million. DP&L pursuant to Federal Rule of Civil Prfrom the judgment to the extent The district court denied the ordethen appealed that order.

On appeal, DP&L makes severa

argues that the district court abuseprejudgment interest to Conte. It acourt erred in denying DP&L’s mmatter of law and abused its discrmotion for a new trial. Finally, district court’s denial of DP&L’s judgment was in error.

II. ANALY

A. Prejudgment Interest

In a diversity case, state law g

decision whether to award prejudg

Pepsi-Cola Metro. Bottling Co., 81988), which is reviewed by thdiscretion, see Stallworth v. City of 836 (6th Cir. 1990) (applying Ohhave defined an abuse of discrprejudgment interest awards, as grossly violative of fact and logic exercise of will but perversity of judgment but defiance thereof, not rather of passion or bias.” State v. 

313 (Ohio 1984) (quoting Spaldin
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 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.” OHIO 

REV. CODE 

ANN. § 1343.03(C) (Banks-Baldwin 1994). The Ohio

Supreme 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 Supreme

Court 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 its

risks 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 recommendation

Nos. 98-4315; 99-4137 

Hous

6Rule 49(b) states, in pertinent part:

The court may submit to the jury, toforms for a general verdict, written i

used to impeach Fralick’s testimoknow that the primaries were ener

Applying federal law to determ

Doll’s testimony, we conclude erroneously excluded. See BaFiberglas Corp., 201 F.3d 815, 82the statements were offered to testimony and not for the truth of were not hearsay. See FED. R.

EVI

Causey, 834 F.2d 1277, 1282-83 (6

486 U.S. 1034 (1988). Nonetheshowing that this error was so prejtrial. As Conte pointed out, LaFralick that the lines were hot; ththis effect was before the jury. evidence would have helped to illupainters’ reliance on DP&L’s uworkplace safe: if the jury conclulines were energized, then they coupainters relied on DP&L’s condupoles in the proximity of the primhas two flaws. First, Doll’s testimohave been admissible as substantibut merely as a way of impeacSecond, the proffered evidence madid not rely on DP&L, but it does about Conte’s reliance. Thereforecourt did not abuse its discretion trial based on the erroneous exclu

Finally, DP&L argues that it w

because it was prejudiced by the amendment of the judgment undProcedure 49(b).6 DP&L claim
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 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. (quoting Bruner 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 the

evidence, 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 have

granted 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,

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Hous

3The only act on the part of DP&L t

“settlement” was its offer of $3.00 to CoDP&L explains, however, this “offer” wConte to dismiss DP&L from the case: Dwould be to Conte’s advantage to have number of reasons – including that DP&L and “scorched earth” tactics and that DP&and would bolster GHC’s defense.to grant summary judgment in DPthe reasonableness of DP&L’s bliability. Furthermore, DP&L cldistrict court’s findings, DP&discussed the possibility and desirDP&L’s counsel. Finally, DP&L dfinding that DP&L believed therpercent chance that a jury would ato $500,000, which was based on counsel that he thought that “[t]recovering an award in excess of [was] less than 50%.” J.A. at 250

We hold that the district court d

in awarding prejudgment interest dispute that it never made a real despite Conte’s efforts to negotiat

there is evidence that DP&L’s cousome attempts to evaluate DP&L’action and that he kept in contact about the possibility of settlementabuse its discretion in finding that rationally evaluate its risk. Thomthat there was only one written refirm and transmitted to DP&L resettlement in this case. SimiSupervisor of Claims AdministratiDP&L did not make any written evon Thomas’s oral communicationsdemonstrates minimal and unrigo
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 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 the

litigation 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. 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 factualissues were strongly disputed, see Cooper 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 in Worrell andCooper merely held that the trial court did not abuse itsdiscretion in refusing prejudgment interest where the factualissues were hotly disputed; they did not hold that it was anabuse of discretion to grant prejudgment interest in thosesituations. See Cooper, 660 N.E.2d at 1255-56; Worrell, 543N.E.2d at 1285. Moreover, the Ohio Supreme Court has also

Nos. 98-4315; 99-4137 

Hous

could find that DP&L owed a duty fact that DP&L did not own the poto de-energize them without GHC

Having determined that DP&L d

have no difficulty in concluding thafind that that duty included de-eneand that DP&L exhibited negligencBased on the testimony of NowHershfeld, a maintenance supervishave concluded that DP&L had energize the primary lines; or it coagreed to de-energize those lines tin order to render the workplace sathat DP&L undertook together wlines should be de-energized. If it to be included within the scope of jury clearly could have found negligently by only de-energizing de-energize — the secondary lines tank. Therefore, the district couDP&L’s motion for judgment as a C. Motion for a New Trial

DP&L claims that the district co

motion for a new trial under Feder59. DP&L contends that it was three reasons: first, the verdict wathe evidence; second, the district some of DP&L’s evidence as hearcourt incorrectly modified the jurRule of Civil Procedure 49(b). without merit.

In a diversity case, federal law g

decision whether to grant a new weight of the evidence, which is reabuse of discretion. See J.C. W
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 notspoken definitively on § 323(b) since Wissel was decided.

to its customer to exercise reasonable care when it elected torespond 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 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 (citation

omitted). 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. 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 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. See Fortman 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, it

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4One exception is the unpublished 

Associates, No. 66751, 1994 WL 716525 dismissed, appeal not allowed, 648 N.EDP&L, in which the court held that, in a a good-faith belief that it was not liablverdict in its favor in the first trial, despioverturned on appeal. However, the cowere compelling reasons for the defendanin the new trial, because it had located new present a new theory of nonliability. See stated that conflicting evidence cafavor of a grant of prejudgment int

N.E.2d at 351-352. Thus, the mconflicts is of little aid to DP&L’s 

DP&L is correct that t

recommendation in its favor is scould have had a reasonable, goodliable. However, DP&L was not enbelief throughout the litigation, esevents should have undermined tha[the defendant] ever had a good fabelief that he had no liability, the panel unanimously found against [him that a finding of liability at probable.”). In the cases cited by that the magistrate judge’s recommgood faith, there were no subsequethe defendant’s belief in its lack those cases are inapposite.4

DP&L is also correct that, as a m

statement that he believed that thpercent chance that DP&L would b$500,000 does not mean that he thwas more than a fifty percent chaliable for an amount up to $500,00the substantial evidence suppordecision, this minor error in the co
10 Conte v. General

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Nos. 98-4315; 99-4137

sufficient 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 Law

1. Standard of ReviewThis court reviews de novo the district court’s disposition

of a motion for a judgment as a matter of law under FederalRule of Civil Procedure 50. See K&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, see Mussivand 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. See K&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. 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 

CIV. R. 50(A)(4). Under Ohio law, the

credibility 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 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

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Family Counseling Ctr., 673 N.E.2“In Ohio, ‘[t]he existence of foreseeability of the injury . . . . Thwhether a reasonably prudent persthat an injury was likely to result nonperformance of an act.’” Id. 

Welding Prods., Inc., 472 N.E.2(omission and alteration in origina

The district court was correct t

duty of ordinary care to Conte, bundertook to perform services for tother Kessler painters. The Court othe position of the Restatement (SWissel v. Ohio High School Athleti458 (Ohio Ct. App. 1992). That s

One who undertakes, gratuitouslrender services to another which necessary for the protection othings, is subject to liability to harm resulting from his failure care to perform his undertaking. . . (b) the harm is suffered becausupon the undertaking.

RESTATEMENT (SECOND) OF 

TORT

605 N.E.2d at 464-65; see also BeServ., Inc., 623 N.E.2d 158, 16(“When one voluntarily assumes another reasonably relies on that aperformed with ordinary care.”); SElec. Co., 600 N.E.2d 325, 32(holding that the defendant utility