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Streb v. AMF Bowling Centers5/4/2000
APPEAL from the Franklin County Court of Common Pleas.
On May 15, 1993, Roy E. Snodgrass, Jr. ("Snodgrass"), an employee of AMF Bowling Centers, Inc., suffered fatal injuries as a result of electrocution while attempting to repair a pinspotting machine at the Main Lanes Bowling Center ("Main Lanes"). Plaintiff-appellant, as administrator of the estate of Snodgrass filed a complaint against Main Lanes alleging an intentional tort and a cause of action for negligent design, negligent failure to warn, and strict products liability against AMF, Inc., and its successor AMF Bowling, Inc. (collectively "AMF"). The trial court granted summary judgment in favor of Main Lanes on appellant's intentional tort claim. The negligent design and products liability claims against AMF were tried to a jury. During trial, appellant voluntarily dismissed the negligent design claim with the consent of the court and without objection from AMF. The jury found the pinspotter machine was not defective and the trial court journalized the jury's verdict (case No. 94CVH05-3329). Appellant appealed and this court affirmed the trial court's judgment. See Streb v. AMF Bowling Centers, Inc. (Apr. 30, 1998), Franklin App. No. 97APE06-752, unreported.
Appellant filed a Civ.R. 60(B) motion in 94CVH05-3329, which has not been ruled upon. In the motion, appellant alleged that AMF hid their former regional head mechanic, Thomas Schirmer, who had worked on the pinspotting machine shortly after Snodgrass' death.
While the first appeal was pending, appellant filed a second complaint against the same defendants, asserting a claim for spoliation of evidence contending the defendants destroyed evidence relative to his previously litigated product liability claims. Appellant also refiled the negligent design claim which had been voluntarily dismissed during the trial.
On May 13, 1997, AMF filed a motion to dismiss the second complaint pursuant to Civ.R. 12(B)(6) based upon res judicata. On September 8, 1997, AMF filed a motion for a protective order to preclude further discovery. On September 25, 1997, the court converted AMF's motion to dismiss to a motion for summary judgment.
On March 27, 1998, the trial court determined that appellant was permitted to seek the deposition of Schirmer in Canada if he deposited $2,500 with the clerk of courts to cover reasonable expenses and attorney fees of AMF in the event the court later determined the deposition was unnecessary for the summary judgment motion. Appellant filed a motion for reconsideration of the March 27, 1998 order, requesting that AMF be ordered to produce documents, photographs and reports prior to Schirmer's deposition in order for Schirmer to identify such items since he could not be compelled, as a non-party Canadian citizen, to participate at a trial.
Appellant alleges that, on April 6, 1998, AMF's counsel and the trial judge had ex parte communications regarding the motion for reconsideration. Appellant alleges AMF's counsel told the judge that AMF was unaware of any photographs, accident reports or records of repair that appellant sought. On April 16, 1998, the trial court ordered AMF to respond to appellant's partial response to AMF's motions for summary judgment and to produce documents, photographs and records of repair regarding the pinspotting machine. On April 24, 1998, the trial court overruled as moot appellant's motion for reconsideration, finding that it was satisfied that AMF was not aware of the existence of any photographs or accident reports. Appellant alleges that no documentation in the record supports this finding and the only possible source is the ex parte communication.
On May 4,
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