Opinion
Nos. 87-2208 and 88-1282
Submitted December 6, 1989 —
Decided February 28, 1990.
Public Utilities Commission — Alleged inadequate telephone service — Findings of inadequate service supported, when.
APPEALS from the Public Utilities Commission of Ohio, No. 85-1076-TP-CSS.
In August 1985, intervening appellee, Carpet Color Systems ("Carpet Color"), filed a "motion to intervene and notice of service complaint" with appellee, the Public Utilities Commission of Ohio ("commission"), against appellant, Ohio Bell Telephone Company ("Ohio Bell"), alleging inadequate telephone service. Carpet Color, an Ohio Bell business subscriber, complained that, for approximately the previous six years, customers attempting to call its offices would receive a busy or out-of-service signal when lines were available; conversations would be disconnected or interrupted by loud clicking noises; and, on answering a ringing telephone, employees would hear only a dial tone, "dead air," or a whining noise accompanied by severe static. The commission docketed the filing as a complaint brought pursuant to R.C. 4905.26 and, on finding reasonable grounds, set the matter for public hearing.
At the hearings, Carpet Color called numerous witnesses. Warren B. Reber, the owner and manager of Carpet Color, testified that his business began operations in 1979 at 2142 Riverside Drive, Columbus, Ohio. He explained that from 1979 until 1984, Ohio Bell provided all the telephone equipment and facilities, including terminal equipment. In 1984, he installed a Toshiba electronic key telephone system, which was supplied by an independent vendor, and also moved his business across the street to 2185 Riverside Drive. He testified that the problems, which had occurred when only Ohio Bell's equipment was in use, continued, with a few possible minor exceptions, after the Toshiba system was installed and the offices were relocated.
Several customers and employees of Carpet Color also presented testimony regarding the problems that they had experienced before and after installation of the Toshiba system and the relocation. In addition, Carpet Color called, as if on cross-examination, an Ohio Bell employee who explained that he had discovered conditions in the Ohio Bell lines serving Carpet Color that could cause intermittent service problems and, according to an Ohio Bell plant-training manager, that could interfere with accurate test results.
Charles J. Wysong, an independent consultant retained by Carpet Color to investigate the irregularities, testified that although he did not determine the exact cause, he believed Ohio Bell facilities or equipment were at fault. Wysong based his opinion on the existence of certain cable splices and open wires, including openings in the lead sheath used to protect the Ohio Bell cable serving Carpet Color. He testified that he suspected Ohio Bell's equipment or facilities because the service problems occurred whether Ohio Bell's, or Carpet Color's, terminal equipment was in use, as well as when other equipment was used.
Also introduced at the hearing were Ohio Bell's trouble reports, which show that from December 1982 through September 1986 Carpet Color reported over ninety service problems.
Ohio Bell called six of its employees who testified regarding the trouble reports, the maintenance and service activities, and the procedures and tests that were employed to determine whether, and where, any problems existed in Ohio Bell's equipment or facilities. The testimony indicated that although isolated problems were found, nothing was discovered in Ohio Bell's equipment or facilities that would account for the magnitude and duration of the difficulties complained of by Carpet Color.
The attorney examiner issued a report finding that Ohio Bell had provided Carpet Color with legally inadequate telephone service. Exceptions to the report were timely filed.
On September 9, 1987, the commission determined that Ohio Bell had provided inadequate telephone service. The commission found that there was sufficient evidence of record to indicate that Carpet Color had experienced various problems; that the test results and observations of Ohio Bell technicians had limited value because of the intermittent nature of these problems; and that there was insufficient evidence to support a finding that the problems were caused by Carpet Color's terminal equipment, by Carpet Color's employees' use of the equipment, or by customer calling error. The commission also stated:
"16) In a complaint case such as this one, the burden of proof rests with the complainant to establish a prima facie case sufficient to demonstrate that complainant was suffering problems to such a degree as to be tantamount to inadequate service. Once the complainant meets that burden, it is then incumbent upon the respondent to refute the evidence presented by the complainant.
"17) [Carpet Color] met its burden of proof in this case through the introduction of Ohio Bell trouble reports regarding [Carpet Color], logs kept by [Carpet Color] employees of problems encountered during the time period in question, and the testimony of [Carpet Color] witnesses and Ohio Bell witnesses, which all indicate that [Carpet Color] experienced extensive and recurring problems with cut-offs and poor disconnections, transmission quality, false busy signals, and no ringing.
"18) Ohio Bell did not present sufficient evidence to demonstrate either that the problems experienced by [Carpet Color] could not have resulted from inadequacies in Ohio Bell equipment and facilities, or that the problems were predominantly customer-induced or caused by [Carpet Color's] terminal equipment.
"19) The evidence of record supports a finding of inadequate service on the part of Ohio Bell in that it failed in its obligation to [Carpet Color] to take prompt, effective action to correct the source of the difficulties in an effort to remedy the problem as a whole."
On finding inadequate service, the commission ordered Ohio Bell to perform a comprehensive analysis of Carpet Color's total subscriber plant, including a thorough investigation of the equipment and facilities situated at Carpet Color's current offices, and between Carpet Color's offices and the Ohio Bell central office serving the complainant. The commission further ordered Ohio Bell to file a written report setting forth the results of the investigation, the cause of any difficulties found, and the remedial action taken to rectify the problems.
Ohio Bell timely applied for rehearing of the September 9, 1987 order. On November 3, 1987, the application was denied, except that rehearing was granted for the limited purpose of allowing the commission an opportunity to evaluate the results of Ohio Bell's investigation.
In December 1987, Ohio Bell submitted a written report detailing the investigation results. It also filed a motion requesting the commission to reopen the proceedings and to vacate the finding of inadequate service. On May 17, 1988, the commission denied the motion, explaining:
"Even though Ohio Bell's Report now provides post-hearing support to bolster positions taken, but unsuccessfully defended by Ohio Bell at the hearing, the report falls short of establishing [Carpet Color's customer premises equipment] as the source of the complainant's service problems and, thus, fails to meet the first prong of our test. In making this finding, we wish to emphasize that, at the time of the hearing, Ohio Bell did not have the burden to establish [Carpet Color's customer premises equipment] as the cause of [Carpet Color's] service problems — its only burden was to refute the evidence indicating that its own equipment and service were deficient. At hearing, Ohio Bell had every opportunity, but ultimately failed to refute, for example: the testimony of an Ohio Bell employee, Mr. West, to the effect that Ohio Bell's cable serving [Carpet Color] was not in satisfactory condition and could be causing problems, and that he, upon inspection, could not find a working, non-defective cable pair in one of two cables serving [Carpet Color] * * *; the testimony of [Carpet Color's] witness, Mr. Wysong, the independent consultant who personally observed both cable splices which were not in good condition, and also what he considered to be poor engineering practices by Ohio Bell * * *; the evidence that Ohio Bell's methodology in conducting tests, and its failure to maintain its cables may have, at times, interfered with its ability to obtain accurate test results * * *; and the apparent conclusion to be drawn from the combined testimony of numerous [Carpet Color] customers and other witnesses that the same service problems continued unabated, both prior to and after [Carpet Color's] installation of its terminal equipment, as well as during times when the equipment was bypassed for testing purposes." (Citations to record omitted.)
Ohio Bell timely filed an application for rehearing, which the commission denied by entry issued July 6, 1988.
Case No. 87-2208 is an appeal from the commission's September 9, 1987 order and November 3, 1987 entry on rehearing, and case No. 88-1282 is an appeal from the commission's May 17, 1988 entry and July 6, 1988 entry on rehearing. The cases were consolidated at the parties' request, and are now before this court on appeal as of right.
Donald W. Morrison and Charles S. Rawlings, for appellant.
Anthony J. Celebrezze, Jr., attorney general, Robert S. Tongren and Thomas W. McNamee, for appellee.
Emens, Hurd, Kegler Ritter Co., L.P.A., Samuel C. Randazzo, John C. McDonald and Roger P. Sugarman, for intervening appellee.
Ohio Bell contends the commission erred in finding that it provided Carpet Color with legally inadequate telephone service. We disagree and affirm the orders of the commission.
In the proceeding below, the burden rested upon Carpet Color to demonstrate, by a preponderance of the evidence, that the telephone service provided by Ohio Bell was inadequate. See, e.g., Ohio Bell Tel. Co. v. Pub. Util. Comm. (1984), 14 Ohio St.3d 49, 14 OBR 444, 471 N.E.2d 475; Boyle-Midway v. Pub. Util. Comm. (1971), 25 Ohio St.2d 11, 54 O.O. 2d 154, 266 N.E.2d 838, and the cases therein cited.
Ohio Bell maintains that with respect to causation, the commission adopted a res ipsa loquitur approach, or indulged in a presumption at law, which effectively shifted the burden of proof from Carpet Color to Ohio Bell. It reasons that Carpet Color should have been required not only to demonstrate the existence of numerous service problems, but also to "present direct factual evidence of fault," while Ohio Bell, in order to prevail, should not have been required to "conclusively prove" that Carpet Color's facilities were, or that Ohio Bell's own facilities were not, defective. Ohio Bell concludes that because the commission defined and applied an inappropriate burden of proof, the evidence was not properly weighed.
Thus, we initially must decide whether the commission properly defined Carpet Color's burden of proof. In the September 9, 1987 order, Carpet Color was required to demonstrate only "problems to such a degree as to be tantamount to inadequate service." Although evidence of a particular type of problem may be of probative value for purposes of demonstrating fault, we do not believe that causation can reasonably be inferred from the number of problems alone. Accordingly, we find that the commission did not properly state Carpet Color's burden of proof.
We recognize that the burden-of-proof standard set forth in the September 9, 1987 order is the same as that which was before us in Ohio Bell, supra. However, because we resolved that case without reaching the issue of causation, we find it unnecessary to reconcile Ohio Bell with today's decision.
However, even though the commission misstated Carpet Color's burden of proof, we do not find reversible error. Carpet Color did not rest its case only on a showing of numerous problems but presented sufficient evidence to sustain its burden of proof on the issue of causation. Therefore, Ohio Bell has not been prejudiced by the commission's error. Absent a showing of prejudice, we will not reverse an order of the commission. See, e.g., Allen v. Pub. Util. Comm. (1988), 40 Ohio St.3d 184, 187, 532 N.E.2d 1307, 1311.
At the hearings below, Carpet Color introduced extensive evidence demonstrating that it had experienced numerous, serious telephone service problems that continued, uncorrected, for many years; that the Ohio Bell cable serving Carpet Color was not in satisfactory condition and could be causing the difficulties; that there was not a working non-defective cable pair in one of the two cables serving Carpet Color; that cable splices were not in good condition; and that the same service problems occurred prior to, and after, installation of the Toshiba system, and when this terminal equipment was bypassed for testing.
Ohio Bell argues that this evidence is not sufficient. It reasons that because the problems could have been caused by other than Ohio Bell's facilities or equipment, Carpet Color should have been required to "present direct factual evidence of fault." However, in Westinghouse Electric Corp. v. Dolly Madison Leasing Furniture Corp. (1975), 42 Ohio St.2d 122, 71 O.O. 2d 85, 326 N.E.2d 651, we rejected a similar argument.
In Westinghouse, the primary issue was whether a defendant was entitled to a directed verdict on the ground that there was insufficient evidence from which the jury could infer that careless smoking was the cause of a fire. The only evidence of causation was circumstantial evidence and expert testimony. The defendant argued that careless smoking was only one of several equally probable causes, and that plaintiffs failed to effectively eliminate those causes. The jury awarded a judgment for the plaintiffs, but the court of appeals reversed. We reversed the court of appeals, explaining that because there was sufficient proof offered from which it was reasonable to infer that the fire was caused by the negligence of defendant's employee, the fact that other causes of the fire were possible did not prevent an inference of defendant's liability. Westinghouse, supra, at 128-129, 71 O.O. 2d at 89, 326 N.E.2d at 656-657.
Accordingly, it was not incumbent upon Carpet Color to present "concrete evidence" eliminating each possible cause that was suggested by Ohio Bell. It was only necessary for Carpet Color to introduce sufficient proof from which the commission could reasonably infer that the complained-of problems were caused by the equipment or facilities of Ohio Bell. As indicated above, Carpet Color introduced testimony establishing that there were defects in Ohio Bell's cable, and that these defects could be causing the problems. From this, the commission could reasonably infer that Ohio Bell was at fault.
Last, Ohio Bell argues that it should not have been required to "conclusively prove" that Carpet Color's facilities were, or that Ohio Bell's own facilities were not, defective. However, from a review of the May 17, 1988 entry, it is clear that Ohio Bell was only required to present sufficient evidence refuting the testimony regarding the deficiencies in its own equipment and facilities. The commission's determination that Ohio Bell failed to refute this testimony does not appear to be manifestly against the weight of the evidence or so clearly unsupported by the record as to show misapprehension, mistake, or willful disregard of duty. See, e.g., Atwood Resources, Inc. v. Pub. Util. Comm. (1989), 43 Ohio St.3d 96, 102, 538 N.E.2d 1049, 1055.
In that the finding of inadequate telephone service is neither unreasonable nor unlawful, we affirm the orders of the commission.
Orders affirmed.
MOYER, C.J., SWEENEY, HOLMES, WRIGHT, H. BROWN and RESNICK, JJ., concur.
DOUGLAS, J., concurs in judgment only.