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Date: 10-14-2019
Case Style:
BRADLEY STALLMAN vs. MIDWEST BUILDINGS AND SUPPLY CO., et al.
Case Number: 18CA16
Judge: Matthew W. McFarland
Court: COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT HIGHLAND COUNTY
Plaintiff's Attorney:
Defendant's Attorney:
Description:
If you need a Workmans Comp Attorney in Ohio, call at 888-354-4529.
Appellant filed a complaint against Appellee Midwest Buildings
and Supply Co.; Midwest Buildings and Supply Co.’s owner, Larry
Brubaker; Midwest Buildings and Supply Co. employees, including Larry
Maynard, and others (collectively hereinafter referred to as “MBS”); and
Donald and Virginia Warner, the owners of the premises at 1939 Elmville
Road, Leesburg, Ohio, in Highland County (the construction site).
{¶3} Appellant alleged he was an employee of MBS and was injured
while constructing a building for the Warners at the construction site. The
complaint alleged that Appellant, Larry Maynard, and other MBS employees
were erecting a wall, when one of the MBS employees released his grip,
which caused the wall to fall on Appellant and caused him to suffer a severe
leg injury.
{¶4} Count one of the complaint alleged MBS, its named employees,
and the Warners were negligent in failing to protect Appellant from injury
by not properly securing the wall during the installation, etc. The complaint
Highland App. No. 18CA16 3
alleged that as a proximate result of this negligence Appellant suffered a
serious injury.
{¶5} Count two of the complaint alleged MBS employees were liable
to Appellant through the doctrine of respondent superior because they were
employees of MBS.
{¶6} Count three of the complaint alleged an employer intentional tort
against MBS was the proximate cause of Appellant’s injury. The complaint
alleged MBS knew or should have known that MBS employees were under
the influence of drugs or alcohol that affected their work, that there was an
insufficient workforce to safely perform the construction, that there was no
safety equipment that secured the walls, and that there was insufficient
equipment on the site to prevent the wall from falling. And, as a proximate
result of these intentional acts, Appellant was seriously injured.
{¶7} Finally, count four of the complaint alleged the Warners were
liable to Appellant because they managed, controlled, and/or supervised the
construction site. The complaint alleged that the Warners’ failure to inspect
the construction site created dangerous conditions and that they failed to
warn of these conditions, thereby proximately causing Appellant’s injuries.
Highland App. No. 18CA16 4
{¶8} MBS answered, asserting, among other defenses, that the
doctrines of intentional tort and Bureau of Workers’ Compensation claims
barred Appellant’s complaint.
{¶9} The Warners answered, asserting, among other defenses, that
Appellant’s injuries were “the sole, proximate or substantial result of an
intervening and superseding act of negligence over which [the Warners] had
no control or responsibility” resulting in a “complete bar to plaintiff’s
recovery herein.”
{¶10} Both MBS and the Warners filed motions for summary
judgment. Appellant filed a memorandum contra to both motions for
summary judgment.
{¶11} The trial court issued a decision and entry granting summary
judgment to both MBS and the Warners. It is from this judgment that
Appellant, now acting pro se, filed his appeal, which asserts seven
assignments of error.
ASSIGNMENTS OF ERROR
“I. THE TRIAL COURT ERRED IN GRANTING ON BOTH SUMMARY JUDGMENTS. II. THE TRIAL COURT NEGLECTED TO CONSIDER MEDICAL IMPEDIMENTS, AND THE FACT THAT PARTIES WERE IN MEDIATION UNTIL NOV. 26, 3 DAYS BEFORE BREIF [SIC] COULD BE SUBMITTED, WITH MORE LATENT EVIDENCE OF BIAS, DECEIT TO ACCUMULATE DISCOVERY.
Highland App. No. 18CA16 5
III. THE COURT FAILED TO RECOGNING [SIC] MR. HAYSLIPS [SIC] MEMO IN A WAY THAT WAS IMPARTIAL, BASED ON THE MATERIAL FACTS HE OVERLOOKED, GENERALE [SIC] DUTY CLAUSE, SEPTIC PERMIT, IDENTIFY HAZARDS.
IV. TRIAL COURT FAILED TO IDENTIFY BASIC “GENERAL DUTY CLAUSE” REGULATIONS THAT KEEP ALL EMPLOYS [SIC] IN A HAZARD FREE WORK ENVIRONMENT.
V. THE TRIAL COURT WAS INCORRECT IN PARAGRAPH (6) OF THE ORIGINAL FACTS WE PLAINTIFF AND DEFENDANT AGREED UPON.
VI. PARTICAL [SIC] (A) P.S. WELLMAN VS. EAST OHIO GAS CO. #2 BOTTOM PARAGRAPH DANGER VS. HAZARDOUS COURT FAILED TO IDENTIFY HAZARDS FROM DANGER. [SIC]
VII. PICKERINGTON VS. REINFORCING AND STRUCTURAL ERECTIONS. COURT AGAIN FAILED TO NOTICE AGAIN THE DIFFERENCE IN POTENTIAL DANGER AND HAZARDOUS PRE-DETERMINED CONDITIONS WIND, GROUND, INCOPETANCE [SIC], BROWN, MANOR.”
{¶12} Appellant’s assignments of error do not correspond with the
arguments made in the body of his brief. For example, in assignment of
error six Appellant appears to cite the Ohio Supreme Court case, Wellman v.
East Ohio Gas. However, there is no corresponding citation to Wellman in
the body of his brief, let alone any argument regarding how Wellman
applies.
Highland App. No. 18CA16 6
{¶13} Appellant’s brief is a mix of authorities such as Ohio
Jurisprudence 3d, OSHA (Occupational Safety and Health Act), etc., and
various purported facts from the case in an apparent attempt to argue that the
trial court erred in granting summary judgments in favor of MBS and the
Warners. Consequently, we collectively construe Appellant’s assignments
of error as asserting the trial court erred in granting summary judgment to
MBS and the Warners.
STANDARD OF REVIEW
{¶14} “When reviewing a trial court's summary judgment decision,
appellate courts conduct a de novo review under the standard set forth in
Civ.R. 56.” Bob Bay & Son, Co. v. Circle Inv. Corp., 4th Dist. Pickaway
No. 17CA11, 2018-Ohio-2632, 114 N.E.3d 268, ¶ 9, citing Comer v. Risko,
106 Ohio St.3d 185, 2005-Ohio-4559, 833 N.E.2d 712, ¶ 8. In a de novo
review, a court of appeals affords “no deference to the trial court's decision
and independently review[s] the record and the inferences that can be drawn
from it to determine whether summary judgment is appropriate.” Lang v.
Piersol Outdoor Advert. Co., 4th Dist. Washington No. 19CA17, 2018
Ohio-2156, 116 N.E.3d 667, ¶ 14.
{¶15} “[T]he burden to show that no genuine issue of material fact
exists falls upon the party who requests summary judgment.” Bob Bay &
Highland App. No. 18CA16 7
Son, Co., 4th Dist. Pickaway No. 17CA11, 2018-Ohio-2632, 114 N.E.3d
268, ¶ 10. “ ‘[T]he moving party bears the initial burden of demonstrating
that there are no genuine issues of material fact concerning an essential
element of the opponent's case. To accomplish this, the movant must be
able to point to evidentiary materials of the type listed in Civ.R. 56(C)
* * *.’ ” McClure v. Davis, 186 Ohio App.3d 25, 2010-Ohio-409, 30, 926
N.E.2d 333 (4th Dist.), ¶ 6, quoting Dresher v. Burt, 75 Ohio St.3d 280, 292,
1996-Ohio-107, 662 N.E.2d 264. “These materials include ‘ “the pleading,
depositions, answers to interrogatories, written admissions, affidavits,
transcripts of evidence in the pending case, and written stipulations of fact, if
any.” ’ ” Id., quoting Dresher, 75 Ohio St.3d at 293, quoting Civ.R. 56(C).
{¶16} “After the movant supports the motion with appropriate
evidentiary materials, the nonmoving party ‘may not rest upon the mere
allegations or denials of the party's pleadings, but the party's response, by
affidavit or as otherwise provided in this rule, must set forth specific facts
showing that there is a genuine issue for trial.’ ” Bob Bay & Son, Co., 4th
Pickaway No. 17CA11, 2018-Ohio-2632, 114 N.E.3d 268, quoting Civ.R.
56(E). “If the party does not so respond, summary judgment, if appropriate,
shall be entered against the party.” Id., quoting Civ.R. 56(E).
Highland App. No. 18CA16 8
{¶17} Summary judgment is then appropriate, only if: (1) the moving
party demonstrates there is no genuine issue of material fact, (2) reasonable
minds can come to only one conclusion, after the evidence is construed most
strongly in the nonmoving party's favor, and that conclusion is adverse to the
opposing party, and (3) the moving party is entitled to judgment as a matter
of law. McClure v. Davis, 186 Ohio App.3d 25, 2010-Ohio-409, 926 N.E.2d
333 (4th Dist.) ¶ 5, citing Civ.R. 56.
ANALYSIS
1. Liability of MBS and Its Employees
{¶18} We begin our review with the trial court’s summary judgment
in favor of MBS that concluded that there was no genuine issue of material
fact that either MBS or its employees were not liable in negligence, nor
committed any act(s) with a deliberate intent to injure Appellant.
{¶19} “[A]bsent a deliberate intent to injure another, an employer is
not liable for a claim alleging an employer intentional tort, and the injured
employee’s exclusive remedy is within the workers' compensation system.”
Houdek v. ThyssenKrupp Materials N.A., Inc., 134 Ohio St.3d 491, 2012
Ohio-5685, 983 N.E.2d 1253, ¶ 25. Ohio’s worker’s compensation system
is the “result of a unique compromise between employees and employers, in
which employees give up their common-law remedy and accept possibly
Highland App. No. 18CA16 9
lower monetary recovery, but with greater assurance that they will receive
reasonable compensation for their injury.” Stolz v. J & B Steel Erectors,
Inc., 2018-Ohio-5088, 122 N.E.3d 1288, ¶ 20, quoting Stetter v. R.J.
Corman Derailment Servs., L.L.C., 125 Ohio St.3d 280, 2010-Ohio-1029,
927 N.E.2d 1092, ¶ 54.
{¶20} “But when an employee seeks damages resulting from an act or
omission committed by the employer with the intent to injure, the claim
arises outside of the employment relationship, and the workers'
compensation system does not preempt the employee's cause of action.”
Hoyle v. DTJ Ents., Inc., 143 Ohio St.3d 197, 2015-Ohio-843, 36 N.E.3d
122, ¶ 7, see also Schaad v. Valley Proteins, Inc., 4th Dist. Washington No.
05CA41, 2006-Ohio-5273, ¶ 9. However, the threshold for an employee to
sue their employer is steep. R.C. 2745.01 effectively codifies an employer
intentional tort: “the employer shall not be liable unless the plaintiff proves
that the employer committed the tortious act with the intent to injure another
or with the belief that the injury was substantially certain to occur.” R.C.
2745.01(A). “ ‘[S]ubstantially certain’ means that an employer acts with
deliberate intent to cause an employee to suffer an injury, a disease, a
condition, or death.” (Emphasis added.) R.C. 2745.01(B).
Highland App. No. 18CA16 10
{¶21} “The substantial certainty standard in an employer intentional
tort cause of action is a significantly higher standard than even gross
negligence or wantonness.” Jefferson v. Benjamin Steel Co., 5th Dist.
Richland Nos. 09 CA 62 & 09 CA 75, 2010-Ohio-50, ¶ 77, citing Zink v.
Owens–Corning Fiberglas Corp., 65 Ohio App.3d 637, 584 N.E.2d 1303
(1989). The mere knowledge and appreciation of a risk or hazard,
something short of substantial certainty, is not intent. Id.
{¶22} Initially, we note that count one of Appellant’s complaint
alleged that MBS was negligent in causing Appellant’s injuries.1 However,
as explained above, Worker’s Compensation benefits are the exclusive
remedy of an employee injured by their employer’s actions that amount to
anything less than a deliberate intent to injure, absent non-compliance by the
employer with the Worker’s Compensation, which may expose the employer
to liability under a negligence standard, but that is not at issue in this case.
See Bradley v. Admin, Bureau of Workers’ Compensation, 12th Dist. Warren
No. CA2000-01-012, 2000 WL 1370998, at *5, citing R.C. 4123.77.
Therefore, the trial court did not err in granting summary judgment to MBS
and its employees regarding Appellant’s negligence claims.
1 Count one also alleged the Warners were negligent; however, the analysis required to determine their liability differs from the analysis required to determine the liability of MBS and its employees. Consequently, we address the Warners’ liability later in the decision.
Highland App. No. 18CA16 11
{¶23} The next question is whether the trial court properly granted
summary judgment to MBS regarding Appellant’s employer intentional tort
claim.
{¶24} Movant, MBS, asserted that Appellant made several claims
including that one of the MBS workers, Brown, who was helping erect the
wall, was intoxicated; that Brown let go of the wall; and that various safety
procedures were ignored. But MBS alleged that contrary to Appellant’s
assertions, there was no evidence that MBS employees were drunk that day,
that Brown purposely let go of the wall, or that any failure of any safety
discussion or lack or safety protocols resulted in a deliberate intent to injure
Appellant.
{¶25} In response, Appellant claimed that MBS failed to provide a
safety manual to its employees, that MBS failed to verify Appellant’s
experience when he was hired, that MBS admitted that wind could make it
difficult to erect a wall, and that MBS admitted that it “did not take adequate
precautions * * * against foreseeable gusts of wind.” Appellant also alleged
that his expert opined the manpower on the jobsite was inadequate and
erection of the wall was not adequately managed or supervised, that MBS
had machinery that was capable of setting the wall that would have been
Highland App. No. 18CA16 12
safer, and that MBS did not use any safety device when erecting wood
framed walls.
{¶26} Appellant asserts his expert concluded that the evidence
indicated “an unreasonably dangerous job condition in a manner that was
deliberate, willful, reckless, wanton and egregious and evidenced a
deliberate intent to cause injury to its employees.”
{¶27} Here, we note that Brown testified that it was Appellant’s
hammering the wall with a sledge hammer in attempting to properly position
it that knocked the wall out of Brown’s hands, causing it to fall, while
Manor testified that “the wind picked up and hit the wall,” causing it to fall
over. Even though the testimony of Brown and Manor differ as to the actual
cause of the wall falling, neither cause/act evidences a deliberate intent by
Manor or Brown to injure Appellant.
{¶28} Moreover, even construing all the evidence most strongly in
favor of Appellant under a de novo review, MBS may have had knowledge
and appreciation of a risk or hazard to its employees when erecting the wall,
and may have failed to take appropriate steps to mitigate that risk or hazard,
but the failure to respond to a known risk does not equate to deliberate intent
to injure in the context of an employer intentional tort. Jefferson, 5th Dist.
Richland Nos. 09 CA 62 & 09 CA 75, 2010-Ohio-50, ¶ 77. As such, no
Highland App. No. 18CA16 13
genuine issue of material fact exists on this issue. Accordingly, the trial
court did not err in granting summary judgment in favor of MBS.
2. Liability of the Warners
{¶29} Finally, we consider whether the trial court properly granted
summary judgment in favor of the Warners, who owned the construction site
and contracted with MBS to construct a building.
{¶30} Appellant alleged the Warners were liable because as owners of
the property, they managed, controlled, and/or supervised the construction
project and their negligence in doing so proximately caused Appellant’s
injury.
{¶31} Generally, “[i]n order to recover on a negligence claim, a
plaintiff must prove the existence of a duty of care, a breach of that duty, and
that damages proximately resulted from the breach.” Morgan v. Gracely,
4th Dist. Washington No. 05CA36, 2006-Ohio-2344, ¶ 6, citing Jeffers v.
Olexo, 43 Ohio St.3d 140, 142, 539 N.E.2d 614 (1989). “If the defendant
owes no duty, the plaintiff cannot recover for negligence.” Id. The question
of whether a duty exists is a question of law for the court to determine. Id.,
citing Stevens v. Highland County Board of Commissioners, 4th Dist.
Highland No. 04CA8, 2005 WL 1120275, ¶ 3.
Highland App. No. 18CA16 14
{¶32} As a general rule, “Where an independent contractor undertakes
to do work for another in the very doing of which there are elements of real
or potential danger and one of such contractor'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.” Pinkerton v. J & H Reinforcing, 4th Dist. Scioto Nos.
10CA3386 & 10CA3388, 2012-Ohio-1606, ¶ 18, quoting Wellman v. E.
Ohio Gas Co., 160 Ohio St. 103, 113 N.E.2d 629 (1953), at paragraph one
of the syllabus. “[A] construction site is an inherently dangerous setting.”
Bond v. Howard Corp., 72 Ohio St.3d 332, 336, 1995-Ohio-81, 650 N.E.2d
416, citing Whitelock v. Gilbane Bldg. Co., 66 Ohio St.3d 594, 600, 613
N.E.2d 1032 (1993) (Pfeifer, J., dissenting). In other words, the general rule
is that a person, who hires a contractor to undertake construction, has no
duty to protect employees of the contractor from injury during that
construction, and consequently is not liable for any injuries suffered by the
contractor’s employees.
{¶33} “The rule of nonliability will not apply, however, when the
owner or occupier of the premises ‘actively participates’ in the independent
contractor’s work.” Frost v. Dayton Power & Light Co., 138 Ohio App.3d
182, 192, 740 N.E.2d 734 (4th Dist.), citing Hirschbach v. Cincinnati Gas &
Highland App. No. 18CA16 15
Elec. Co., 6 Ohio St.3d 206, 452 N.E.2d 326 at the syllabus. “ ‘[A]ctively
participated’ means that the [one engaging the independent 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. * * *.’ ” Id.,
quoting Bond v. Howard Corp., 72 Ohio St.3d 332, 650 N.E.2d 416,
syllabus.
{¶34} In their motion for summary judgment, the Warners asserted
they met with Vidourek from MBS and informed him of the type of building
they wanted, as well as certain desired specifications. However, they
alleged the wall was erected by, and under the supervision of, MBS
employees. Their motion asserted that Vidourek testified that the Warners
did not participate in the actual construction of the building, i.e. they drove
no nails, made no measurements, etc. They also asserted that Vidourek also
testified that the Warners did not manage the job site or limit the ability of
MBS’s crew to access the construction site. And finally, their motion
asserted that Mr. Warner testified that he did not discuss with MBS how
they should construct and or install any of the walls.
{¶35} In his memorandum contra, Appellant argued that the Warners’
requirement that the walls be constructed from 2x6 lumber covered with
Highland App. No. 18CA16 16
sheeting was sufficient to show control. However, requiring construction of
a building to certain specifications does not equate to active participation
within the exception to nonliability first set out in Hirschbach, 6 Ohio St.3d
206, 452 N.E.2d 326 (1983). There is no evidence that the Warners
instructed MBS employees on how to erect the wall that collapsed on
Appellant, or otherwise more generally controlled or managed construction
of the building that would have required MBS to use the installation method
that it used.
{¶36} Appellant also contends that Nick Brown, one of the MBS
employees, testified that Mrs. Warner “was actively participating in
directing the work they were performing.” However, Appellant provides no
cite to the record, nor is there any specific assertion on how or what Mrs.
Warner was doing to actively participate. And, after reviewing Brown’s
deposition, we could not find any testimony asserting that Mrs. Warner
participated in supervising construction of the building, let alone instructed
MBS on how to erect the wall in question. An “unsupported assertion is
insufficient as a matter of law to raise a genuine issue of material fact.”
Mitchell v. City of Ypsilanti, E.D. Mich. No. 06-11547, 2007 WL 2259117
(Aug. 3, 2007), at *7.
Highland App. No. 18CA16 17
{¶37} Construing the evidence most strongly in favor of Appellant,
under a de novo review, reasonable minds can only conclude that the
Warners have demonstrated there is no genuine issue of material fact in that
they did not actively participate in the construction of their building, or more
specifically manage the erection of the wall that collapsed on Appellant.
Therefore, the trial court did not err in granting summary judgment to the
Warners.
Outcome: Having concluded that the trial court did not err in granting
summary judgment in favor of MBS and the Warners, we overrule
Appellant’s assignments of error and affirm the judgment of the trial court.
Plaintiff's Experts:
Defendant's Experts:
Comments: