2020 Ohio 229
Ohio Ct. App.2020Background
- April 22, 2015: AWP (temporary traffic control contractor) set up a curb‑lane closure on Cox Road for Bowlin (utility contractor) to install poles/wires; AWP employees McCants and Rooks provided traffic‑control services nearby.
- Bowlin foreman Moore called a brief on‑road "huddle" at the side of Bowlin's bucket truck; McCants and Rooks stood flanking the utility workers during the meeting.
- An intoxicated driver (Schuster) crossed the median from the northbound side, entered the closed curb lane, and struck the truck and workers; several were severely injured and one died.
- The Oliphants sued AWP for negligence and loss of consortium, alleging AWP owed Bowlin employees a duty to protect them and breached OMUTCD/industry standards; AWP moved for summary judgment asserting no duty as an independent contractor and that the criminal act was superseding.
- Trial court granted summary judgment for AWP (no duty owed); appellate court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether AWP owed a duty to Bowlin employee J. Oliphant | AWP contracted to provide traffic‑control services and thus owed workers a duty as intended beneficiaries; traffic specialists assumed duty by protecting workers during the huddle | AWP and Bowlin were independent contractors; AWP did not supervise or control Bowlin’s work and did not "actively participate" in the acts causing injury | No duty: independent‑contractor rule; AWP did not direct or control the critical acts that caused injury (summary judgment affirmed) |
| Applicability of OMUTCD §6E.07 (flagger standards) to create legal duty | AWP violated §6E.07 guidance (flaggers should be positioned to warn workers), creating a duty/breach | §6E.07 guidance is not mandatory; no active flagging operation was required or present at the site when accident occurred | Not applicable: the provision cited is guidance (non‑mandatory) and no active flagging duty existed, so it does not create a legal duty |
| Assumption of duty under Restatement §323 ("undertaking") | By flanking workers and attempting to "protect" them, AWP employees assumed a duty to warn/guard and breached it | The flanking did not increase risk nor did J. Oliphant actually rely on AWP positions; no affirmative undertaking that worsened his position | No assumed duty: plaintiffs failed to show increased risk from the undertaking or specific reliance by the injured worker |
| Causation / intervening criminal act | Risk of out‑of‑control vehicles was foreseeable and within AWP's control duties, so Schuster’s criminal act is not superseding | Schuster’s independent criminal conduct was unforeseeable and breaks the causal chain | Court deemed proximate‑cause argument moot after finding no duty; intervening act argument unnecessary to decide |
Key Cases Cited
- Wellman v. East Ohio Gas Co., 160 Ohio St. 103 (1953) (general rule that employer of independent contractor is ordinarily not liable for contractor’s employee injuries when work itself is dangerous)
- Cafferkey v. Turner Constr. Co., 21 Ohio St.3d 110 (1986) (general contractor who has not actively participated in subcontractor’s work owes no duty beyond ordinary care)
- Kucharski v. Natl. Eng. & Contr. Co., 69 Ohio St.3d 430 (1994) (independent contractor lacking contractual relation with another owes no affirmative duty absent supervision or active participation)
- Bond v. Howard Corp., 72 Ohio St.3d 332 (1995) ("active participation" means directing the activity causing injury or giving/denying permission for critical acts)
- Sopkovich v. Ohio Edison Co., 81 Ohio St.3d 628 (1998) (property‑owner active participation can be found where owner directs or controls critical workplace variables)
- Pusey v. Bator, 94 Ohio St.3d 275 (2002) (work is inherently dangerous when it creates a peculiar risk unless special precautions are taken)
- Michaels v. Ford Motor Co., 72 Ohio St.3d 475 (1995) (construction sites are inherently dangerous)