Roseberry v. Diepenbrock
2017 Ohio 8788
| Ohio Ct. App. | 2017Background
- Plaintiff Matthew Roseberry, a Terminex inspector, fell 18 feet through an unfinished attic ceiling while inspecting defendant Steven Diepenbrock’s home for bats and sustained serious injuries.
- Diepenbrock owned the house, had used plank walkways in the attic for years, and escorted Roseberry into the attic; he told Roseberry to stay on the planks and lent him a flashlight.
- The attic had partial plywood at the ladder, exposed joists and insulation, and several loose wooden planks placed to facilitate walking; one plank fell with Roseberry to the floor below.
- Roseberry testified he was trained to work in attics, knew the risks, tapped each plank to test it, and did not rely on Diepenbrock’s assurance that the planks were secure.
- Roseberry sued Diepenbrock for negligence; the trial court granted summary judgment for Diepenbrock, finding the danger inherent and that Diepenbrock did not have superior knowledge or actively participate in the work.
- On appeal, Roseberry challenged (1) that the activity was inherently dangerous/open-and-obvious precluding liability and (2) that Diepenbrock actively participated, invoking the Hirschbach exception.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiff’s attic work was an inherently dangerous/open-and-obvious activity absolving owner liability | Roseberry: plank defect was not open and obvious; owner had superior knowledge of the dangerous condition | Diepenbrock: working in an unfinished attic is a work with real/potential danger; Roseberry (trained) knew the risks and tested planks himself | Court: Activity was inherently dangerous/open-and-obvious; Roseberry knew risks and tested planks, so owner not liable |
| Whether owner had superior/actual knowledge of the plank defect | Roseberry: Diepenbrock told him he installed the planks, so owner knew or should have known of defect | Diepenbrock: No evidence he knew a plank was short or unfastened; he had used the planks repeatedly without noticing any issue | Court: No evidence owner had superior/actual knowledge; summary judgment for owner appropriate |
| Whether Hirschbach exception (active participation) applies | Roseberry: owner actively participated by directing access and showing planks, thus failed to eliminate hazard | Diepenbrock: Actions (showing attic, flashlight, saying stay on planks) amount only to normal homeowner cooperation, not active participation | Court: Owner’s acts were ordinary assistance, not directing/controlling the work; Hirschbach exception does not apply |
| Whether summary judgment was proper | Roseberry: disputed material facts preclude summary judgment on negligence and active participation | Diepenbrock: undisputed facts show open-and-obvious danger, no superior knowledge, no active participation | Court: Viewed favorably to nonmovant, reasonable minds could only conclude for defendant; summary judgment affirmed |
Key Cases Cited
- Wellman v. East Ohio Gas Co., 160 Ohio St. 103 (1953) (owner who hires independent contractor ordinarily not liable for injuries inherent in the work)
- Hirschbach v. Cincinnati Gas & Elec. Co., 6 Ohio St.3d 206 (1983) (exception where owner actually participates in the work and fails to eliminate a hazard)
- Schwarz v. General Elec. Realty Corp., 163 Ohio St. 354 (1955) (duty owed to invitee is ordinary care to maintain premises and disclose hazards)
- Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d 79 (2003) (elements of negligence: duty, breach, proximate cause, injury)
- Bond v. Howard Corp., 72 Ohio St.3d 332 (1995) (defining "actively participated" as directing the activity or controlling critical acts that led to the injury)