Case Information
*1
[Cite as
Pinkerton v. J&H Reinforcing
,
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY
CRAIG D. PINKERTON, et al, :
:
Plaintiffs-Appellants. :
: Case Nos. 10CA3386 & v. : 10CA3388 :
J&H REINFORCING AND : DECISION AND STRUCTURAL ERECTORS, INC., et al, : JUDGMENT ENTRY :
Defendants-Appellees. : Filed: April 4, 2012 ________________________________________________________________
APPEARANCES:
Michael S. Miller and Craig P. Scott, Volkema Thomas Miller & Scott LPA, Columbus, Ohio, for Appellants, Craig D. Pinkerton and Melissa McCrary Pinkerton.
Mike Dewine, Ohio Attorney General; Andrew D. Sonnek and Greg A. Goldblatt, Sonnek & Howard, Ltd., Cincinnati, Ohio for Appellant, Ohio Bureau of Workers’ Compensation. [1]
David G. Jennings and J. Stephen Teetor, Isaac, Brant, Ledman & Teetor, LLP, Columbus, Ohio, for Appellee, J&H Reinforcing and Structural Erectors, Inc.
William B. Benson and Mark C. Melko, Wiles, Boyle, Burkholder & Bringardner Co., L.P.A., Columbus, Ohio, for Appellee, BBL-Carlton, LLC.
________________________________________________________________
Kline, J.: Craig D. Pinkerton, Melissa McCrary Pinkerton, and the Ohio Bureau of
Workers’ Compensation (hereinafter the “Workers’ Compensation Burеau”) appeal the judgment of the Scioto County Court of Common Pleas. The appellants claim that the negligence of J&H Reinforcing and Structural Erectors, Inc. (hereinafter “J&H Reinforcing”), and BBL-Carlton, LLC (hereinafter “BBL-Carlton”), contributed to injuries that Craig Pinkerton suffered on a construction jobsite. The trial court, however, granted summary judgment to both J&H Reinforcing and BBL-Carlton.
{¶2} On appeal, the appellants contend that the trial court should not have granted summary judgment to either of the appellees. We disagree. As a matter of law, neither J&H Reinforcing nor BBL-Carlton owed a duty of care to Craig Pinkertоn. Furthermore, we find the following: (1) there are no genuine issues of material fact; (2) both J&H Reinforcing and BBL-Carlton are entitled to judgment as a matter of law on all of the appellants’ claims; and (3) reasonable minds can come to just one conclusion as to all of the appellants’ claims, and that conclusion is adverse to the appellants. Accordingly, we affirm the judgment of the trial court.
I. On June 17, 2007, Craig Pinkerton was injured while working on a
construction site at an elementary school. Craig Pinkerton worked for Dixon Electrical, whiсh was the prime electrical contractor on the project. J&H Reinforcing was the prime contractor for general trades, and BBL-Carlton was the construction manager. During the construction project, the various contractors stored equipment in the mechanical room. To make room for the equipment, somebody removed the double doors and the mullion from the mechanical room’s doorway. A “mullion” is “a slender vertical usually nonstructural bar or pier forming a division between * * * doors[.]” Webster’s Third New International Dictionary, Unabridged (2002). However, after the doors and the mullion were removed, the “mullion clip” was left exposed in the floor. This particular mullion clip was a metal bracket, approximately one-to-two inches wide, and approximately a half-inch high.
{¶5} On the day of the accident, Craig Pinkerton walked through the equipment room doorway and allegedly tripped over the exposed mullion clip. As a result, his Achilles tendon was severed.
{¶6} Because of his injuries, Craig Pinkerton applied for and received compеnsation and medical benefits from the Workers’ Compensation Bureau. On October 23, 2008, Craig and Melissa Pinkerton filed a complaint against J&H Reinforcing, BBL-Carlton, and various unnamed defendants. The complaint alleged that, because of the exposed mullion clip, the defendants “negligently created and/or maintained a dangerous condition[.]” Additionally, Melissa Pinkerton claimed loss of consortium, and, in later filings, the Workers’ Compensation Bureau asserted subrogation rights. That is, the Workers’ Compensation Bureau claimed that it was “entitled to recover [the compensation and medical benefits] paid to or on behalf” of the Pinkertons. Complaint of New Party Plaintiff Ohio Bureau of Workers’ Compensation. Despite extensive discovery, it could not be determined who, exactly, had removed the doors and the mullion. Several witnesses testified that employees of J&H Reinforcing would have been responsible because J&H Reinforcing was the independent contractor in charge of doorframes. According to these witnesses, union rules would have prevented the employees of any other independent contractor from removing the doors and the mullion. But an employee of BBL-Carlton testified (1) that J&H Reinforcing was not contractually responsible for removing the doors and the mullion and (2) that anybody could have done it. Significantly, there was no evidence that either J&H Reinforcing or BBL-Carlton had directed the activities of Dixon Electrical or Craig Pinkerton. Furthermore, there was no evidence that either J&H Reinforcing or BBL-Carlton had given permission for the critical acts that led to Craig Pinkerton’s injuries. Eventually, in two separate entries, the triаl court granted summary judgment
to both J&H Reinforcing and BBL-Carlton. The trial court found, in part, that neither J&H Reinforcing nor BBL-Carlton had actively participated in the work of Dixon Electrical or Craig Pinkerton. As a result, the trial court dismissed the complaint of the plaintiffs and the complaint of the Ohio Bureau of Workers’ Compensation. Four days later, the trial court filed the same two entries but added Civ.R. 54(B) language (“no just cause for delay”).
{¶10} Craig D. Pinkerton, Melissa McCrary Pinkerton, and the Workers’ Compensation Bureau appeal and assert the following three assignments of error: I. “THE TRIAL COURT ERRED TO THE SUBSTANTIAL PREJUDICE OF PLAINTIFFS- APPELLANTS IN GRANTING SUMMARY JUDGMENT TO THE DEFENDANT- APPELLEE J&H REINFORCING AND STRUCTURAL ERECTORS, INC.” II. “THE TRIAL COURT ERRED TO THE SUBSTANTIAL PREJUDICE OF PLAINTIFFS- APPELLANTS IN GRANTING SUMMARY JUDGMENT TO THE DEFENDANT- APPELLEE BBL-CARLTON, L.L.C.” And, III. “THE TRIAL COURT ERRED TO THE SUBSTANTIAL PREJUDICE OF PLAINTIFFS-APPELLANTS IN FAILING TO GIVE ANY WEIGHT TO THE DEPOSITION AND AFFIDAVIT TESTIMONY OF RYAN STEWART.” The Pinkertons asserted these assignments of error in their appellate brief.
And “[i]n the interest of brevity and [for] the convenience of the Court,” the Workers’ Compensation Bureau adopted the Pinkertons’ assignments of error and issues presented for review. Brief of Appellant Ohio Bureau of Workers’ Compensation at 4. Therefore, when referring to the appellants collectively, we will use the term “Pinkertons.”
II. Before addressing the Pinkertons’ first-and-second assignments of error, we
must note a procedural deficiency. That is, in their appellate brief, the Pinkertons have
failed to separately argue their first-and-second assignments of error as required by
App.R. 16(A)(7). Instead, the Pinkertons have presented just one argument in support
of both assignments of error. Under App.R. 12(A)(2), we may choose to disregard any
assignment of error that an appellant fails to separately argue. Therefore, we could
exercise our discretionary authority to summarily overrule the Pinkertons’ first-and-
second assignments of error. See Newman v. Enriquez ,
III. In their first-and-second assignments of error, the Pinkertons contend that the
trial court should not have granted the appellees’ respective motions for summary
judgment. “Because this case was decided upon summary judgment, we review this
matter de novo, governed by the standard set forth in Civ.R. 56.” Comer v. Risko , 106
Ohio St.3d 185,
the party who moves for summary judgment. Dresher v. Burt ,
appellate court must independently review the record and the inferences that can be
drawn frоm it to determine if the opposing party can possibly prevail.” Grimes at ¶16
(citation omitted). “Accordingly, we afford no deference to the trial court’s decision in
answering that legal question.” Morehead v. Conley (1991),
IV.
{¶16} For ease of analysis, we will review the Pinkertons’ second assignment of error out of order. In their second assignment of error, the Pinkertons contend that the trial court should not have granted BBL-Carlton’s motion for summary judgment. Essentially, the Pinkertons contend that there are genuine issues of material fact as to whether BBL-Carlton’s negligence contributed to Craig Pinkerton’s injuries. “It is well-settled that in a negligence suit between private parties, the plaintiff
must prove (1) the existence of a legal duty, (2) the defendant’s breach of that duty,
and, (3) that the breach was the proximate cause of harm and damages.” Scott v.
Marckel , Defiance App. No. 4-07-27,
for another in the very doing of which there are elements of real or potential danger and
one of such contrаctor’s employees is injured as an incident to the performance of the
work, no liability for such injury ordinarily attaches to the one who engaged the services
of the independent contractor.” Wellman v. E. Ohio Gas Co. (1953),
{¶20}
Here, there is no evidence that BBL-Carlton actively participatеd in Dixon
Electrical’s job operations. In fact, the Pinkertons do not even allege active participation
on behalf of BBL-Carlton. Therefore, as a matter of law, BBL-Carlton did not owe a duty
of care to Craig Pinkerton.
[2]
And without a duty of care, there can be no negligence.
See Jeffers v. Olexo (1989),
{¶21} Accordingly, BBL-Carlton is entitled to judgment as a matter of law, and we overrule the Pinkertons’ second assignment of error.
V. In their first assignment of error, the Pinkertons contend that the trial court
should not have granted J&H Reinforcing’s motion for summary judgment. Essentially, the Pinkertоns contend that there are genuine issues of material fact as to whether J&H Reinforcing’s negligence contributed to Craig Pinkerton’s injuries.
A. Duty of Ordinary Care or Active Participation? Like BBL-Carlton, J&H Reinforcing contends that it did not owe a duty of care
to Craig Pinkerton. As we noted earlier, the existence of a duty depends upon the relationship between the particular parties. See Huston at 217. And significantly, J&H Reinforcing was not an owner, general contractor, or construction manager. Instead, J&H Reinforcing and Dixon Electrical were both independent subcontractors on the sаme construction project. The Supreme Court of Ohio discussed the duty that one independent
subcontractor owes to a second independent subcontractor in Kucharski v. Natl.
Engineering Contracting Co. ,
Reinforcing’s active participation was necessary to establish a duty of care to Craig
Pinkerton. Here, we agree with the Seventh Appellate District’s reasoning in Solanki v.
Doug Freshwater Contracting, Inc. , Jefferson App. No. 06-JE-39,
{¶26}
We find the reasoning in Solanki persuasive and apply it to the present case.
Otherwise, J&H Reinforcing would have owed Craig Pinkerton a greater duty of care
than an owner, general contractor, or construction manager would have. The Supreme
Court of Ohio has held that “[a] general contractor who has not actively participated in
the subcontractor’s work, does not, merely by virtue of its supervisory capacity, owe a
duty of care to employees of the subcontractor who are injured while engaged in
inherently dangerous work.” Cafferkey v. Turner Constr. Co. (1986),
{¶27} Here, J&H Reinforcing did not supervise the work of Dixon Electrical or Craig Pinkerton. Instead, J&H Reinforcing and Dixon Electrical were both independent subcontractors on the same inherently dangerous worksite. And we do not believe that, absent active participation, J&H Reinforcing should have owed some duty to Craig Pinkerton while the general contractor would have owed him no duty whatsoever. Because оf its supervisory capacity, the general contractor would have had more control over Craig Pinkerton’s work than J&H Reinforcing had. Thus, we will not apply a heightened duty of care to an entity that had less actual influence over Craig Pinkerton’s work environment. Finally, Kucharski expressly “approved and followed” the holding in Cafferkey .
See Kucharski at syllabus. Therefore, it is logical to assume that Cafferkey ’s no-duty- without-active-participation rule would extend to fellow independent subcontractors under Kucharski . Accordingly, tо establish that J&H Reinforcing owed a duty to Craig Pinkerton,
the Pinkertons must show that J&H Reinforcing actively participated in Dixon Electrical’s job operations.
B. What Does Active Participation Mean?
{¶30} When discussing the relationship between two independent subcontractors, it is not entirely clear what “active participation” means. The Supreme Court of Ohio announced the duty of care between independent subcontractors in Kucharski . See Kucharski at syllabus. But in Kucharski , the court did not describe what it means for one independent subcontractor to actively participate in the work of another independent subсontractor.
{¶31} After Kucharski , the Supreme Court explained the meaning of active participation in Bond . But the syllabus in Bond expressly relates to the duty that general contractors owe to independent contractors. As the court held, “For purposes of establishing liability to the injured employee of an independent subcontractor, ‘actively participated’ means that the general contractor directed the activity which resulted in the injury and/or gave or denied permission for the critical acts that led to the employee’s injury, rather than merely exercising a general supervisory role over the project.” Bond at syllabus (emphasis added). In Sopkovich , the Supreme Court of Ohio again elaborated on active
participation. The court held that “active participation giving rise to a duty of care may be found to exist where a property owner either directs or exercises control over the work activities of the independent contractor’s employees, or where the owner retains оr exercises control over a critical variable in the workplace.” Sopkovich at 643 (emphasis added). Therefore, the holding in Sopkovich relates only to property owners. Because the Supreme Court of Ohio did not mention Kucharski in either Bond
or Sopkovich , the court has yet to define what specifically constitutes active participation
between independent subcontractors. Nevertheless, the Seventh District Court of
Appeals applied Bond ’s definition of active participation to this type of relationship. See
Solanki at ¶¶30-32, 42. See, also, Kratzer ; but, see, Nibert v. Columbus/Worthington
Heating & Air Conditioning , Fayette App. No. CA2009-08-015,
Reinforcing dirеcted any of Dixon Electrical’s activities. Furthermore, there is no evidence that J&H Reinforcing gave or denied permission for the critical acts that led to Craig Pinkerton’s injury. Therefore, as a matter of law, J&H Reinforcing did not actively participate in Dixon Electrical’s job operations. And as a result, J&H Reinforcing did not owe a duty of care to Craig Pinkerton. Without a duty of care, there can be no negligence. See Jeffers at 142.
C. Accordingly, J&H Reinforcing is entitled to judgment as a matter of law, and
we overrule the Pinkertons’ first assignment of error.
VI. In their third assignment of error, the Pinkertons contend that the trial court
should have given more weight to the testimony of a particular witness. However, based on our resolution of the first two assignments of error, we find the Pinkerton’s third assignment of error to be moot. The witness in question did not testify that any of the defendants had directed the activities of Dixon Electrical or Craig Pinkerton. Furthermore, this particular witness did not testify that any of the defendants had given or denied permission for the critical acts that led to Craig Pinkerton’s injury. Instead, the witness testified that, in his opinion, employees of J&H Reinforcing had removed the doors and the mullion. Because neither BBL-Carlton nor J&H Reinforcing owed a duty of care to Craig Pinkerton, this testimony is immaterial. Accordingly, we decline to address the Pinkertons’ third assignment of error. See App.R. 12(A)(1)(c).
VII. After construing the record and all inferences therefrom in the Pinkertons’
favor, we find the following: (1) there are no genuine issues of material fact; (2) both J&H Reinforcing and BBL-Carlton are entitled to judgment as a matter of law on all of the Pinkertons’ claims; and (3) reasonable minds can come to just one conclusion as tо all of the appellants’ claims, and that conclusion is adverse to the Pinkertons. Accordingly, we affirm the judgment of the trial court.
JUDGMENT AFFIRMED.
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED. Appellants shall pay the costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Scioto County Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Excеptions.
Harsha, J.: Concurs in Judgment and Opinion as to Assignment of Error No. II. Dissents as to Assignments of Error No. I and III.
Abele, P.J.: Concurs in Judgment Only.
For the Court
BY:_____________________________ Roger L. Kline, Judge NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.
Notes
[1] Richard Cordray was the Ohio Attorney General when this appeal was filed.
[2] In relation to either J&H Reinforcing or BBL-Carlton, the Pinkertons cannot establish a duty of care under the frequenter statute. “R.C. 4101.11 requires every employer to furnish a place of employment that is safe for its employees and for frequenters of the place of employment. However, ‘[t]he duty to frequenters of places of employment, set forth in R.C. 4101.11, does not extend to hazards which are inherently and necessarily present because of the nature of the work performed, where the frequenter is the employee of an independent contractor.’ Eicher v. United States Steel Corp. (1987), 32 Ohio St.3d 248[,] syllabus. Instead, the primary responsibility for protecting such an employee lies with his employer. Id., at 250[.]” Kratzer v. Gen. Motors Corp. (Feb. 27, 1998), Montgomery App. Nos. 16590, 16593, and 16594.