2012 Ohio 1606
Ohio Ct. App.2012Background
- June 17, 2007 injury on a school construction site; Pinkertons allege exposed mullion clip caused injury.
- J&H Reinforcing was general/subcontractor; Dixon Electrical was independent subcontractor; BBL-Carlton was construction manager.
- Doors and mullion removed; mullion clip left exposed in doorway floor; injury occurred when Pinkerton tripped.
- Plaintiffs sought damages and subrogation by Workers’ Compensation Bureau; discovery failed to identify exact actor.
- Trial court granted summary judgment to J&H Reinforcing and BBL-Carlton; affirmed on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Duty owed between independent subcontractors? | Pinkerton argues duty exists due to active participation. | BBL-Carlton/J&H assert no duty absent active participation. | No duty established; summary judgment for both affirmed. |
| Active participation element for duty? | Active participation by J&H or BBL-Carlton alleged. | Active participation not shown; rely on Wellman framework. | No active participation by either; no duty. |
| Weight given to witness testimony? | Testimony supported claim of involvement by defendants. | Testimony irrelevant if no duty exists. | Moot; dispositive issues resolved. |
Key Cases Cited
- Wellman v. E. Ohio Gas Co., 160 Ohio St.103 (Ohio 1953) (no liability to injured employee absent active participation)
- Kucharski v. Natl. Engineering Contracting Co., 69 Ohio St.3d 430 (Ohio 1994) (duty between independent contractors; no duty without supervision/participation)
- Cafferkey v. Turner Constr. Co., 21 Ohio St.3d 110 (Ohio 1986) (no duty for general contractor absent active participation)
- Bond v. Howard Corp., 72 Ohio St.3d 332 (Ohio 1995) (defines active participation for liability of general contractor to independent contractor’s employee)
- Sopkovich v. Ohio Edison Co., 81 Ohio St.3d 628 (Ohio 1998) (owner-controlled active participation limited to property owners)