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Empty Chair Defense & Immune Employer

April 22, 2019

Cleveland, Ohio

In Jester v. Utilmap Corp., 1st Dist. Hamilton No. C-170576, 2018-Ohio-4755, the First District Court of Appeals addressed the situation of when an absent party may be at fault for a plaintiff’s injury, but that party is legally immune from liability for some reason. In Ohio, fault can be apportioned among multiple tortfeasors. R.C. 2307.22. Ohio Revised Code Section 2307.23 allows for apportionment of fault to persons who are not parties to the case; this is commonly known as the “empty-chair defense.” The Jester court determined that an employer, even though found not liable because of Ohio workers’ compensation immunity, can be apportioned a percentage of liability to reduce the liability of the remaining party or parties.

 In Jester, Duke Energy sought to remove some utility poles from private property and replace the above-ground lines with an underground line. Because the poles were on private property, the employees would not be able to reach the wires with a truck, so they would have to manually climb the poles. Jester, a senior lineman, volunteered to climb the poles and lead a training exercise. After Jester “sound tested” the pole with a hammer, he and another Duke Energy lineman began climbing the second pole; while both men were on the pole, the pole broke below the groundline with Jester taking the brunt of the force of the fall. Jester later died at the hospital from internal injuries. An investigation into the incident revealed that Utilimap had been contracted by Duke Energy to inspect the pole that broke and killed Jester two and a half years earlier. However, the pole in question was never inspected. The trial court granted Duke Energy’s summary judgment motion based on worker’s compensation immunity; Plaintiff had already received workers’ compensation benefits. However, Utilimap, the remaining defendant, argued that Duke Energy had to be included on the verdict form as an empty chair defendant for part of the fault to apportionment, as allowed by R.C. 2307.23. Jester v. Utilmap Corp., 1st Dist. Hamilton No. C-170576, 2018-Ohio-4755. Utilimap requested that the jury be able to apportion fault to Duke Energy, but the trial court denied this request. The jury determined that Jester was not negligent and determined that Utilimap was 100% negligent, returning a verdict for Plaintiff for nearly $28 million, including $24 million in noneconomic damages. Utilimap appealed arguing that the trial court erred in granting summary judgment on the company’s empty-chair defense under R.C. 2307.23 because the jury should have been able to apportion fault to the employer.


The appellate court acknowledged a split of authority on whether fault can be allocated to an immune empty-chair defendant. Id. at ¶ 27. The Fifth District Court of Appeals rejected apportionment of liability to an immune employer in Romig v. Baker Hi-Way Express, Inc., 5th Dist. Tuscarawas No. 2011AP-02-0008, 2012-Ohio-321. While, the Eighth District Court of appeals held that an immune employer can be included in apportionment under R.C. 2307.23. See Root v. Stahl Scott Fetzer Co., 2017-Ohio-8398, 88 N.E.3d 980, ¶ 80 (8th Dist.); See also Fisher v. Beazer East, Inc., 8th Dist. Cuyahoga No. 99662, 2013-Ohio-5251. 

The Jester court declined to follow Romig and held that a jury is permitted to allocate fault against an immune empty-chair defendant. 2018-Ohio-4755 at ¶ 28. Even when an employer is dismissed from a case because of Ohio workers’ compensation immunity laws, an employer can still be apportioned a percentage of liability to reduce the remaining party or parties liability. The Jester ruling supports the purpose of Ohio’s fault apportionment statutes: to ensure that no defendant pays more than its fair share of plaintiff’s damages. However, immune defendants that were dismissed from cases can now have a percent of liability attributed to them.

The validity of apportioning liability to absent, immune entities has been endorsed by various Ohio trial courts. See Wise v. Merry Moppet Early Learning Ctr., Inc., Franklin C.P. 13 CVC-12349, 2015 Ohio Misc. LEXIS 8348 (July 24, 2015) (allowing parental contributory negligence to reduce a child’s negligence claim); Farley v. Complete Gen. Constr. Co., Franklin C. P. 12CVC-09-123494, 2014 Ohio Misc. LEXIS 9060 (Feb. 12, 2014) (allowing immune County Defendants to be apportioned fault); Lu Swartz v. McCormick Equip. Co., Union C. P. No. 2011- CV-0020, 2013 Ohio Misc. LEXIS 7943, *9 (July 13, 2013) (“From the plain language of the statute it appears that apportionment is to include even those persons who could not have been added as a party to the tort action.”)

However, whether or not the Ohio Supreme Court will resolve the current split of authority on apportionment to immune employers remains to be seen. If the Supreme Court decides to uphold the Jester rule, defendants will likely find themselves only paying for their share of plaintiff’s damages and certain immune defendants will have liability apportioned to them despite being dismissed from the case.

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