[Cite as Badra-Muniz v. Vinyl Carpet Serv. Inc., 2024-Ohio-5507.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
PEDRO BADRA-MUNIZ : : Appellant : C.A. No. 29942 : v. : Trial Court Case No. 2021 CV 01031 : VINYL CARPET SERVICE INC. et al. : (Civil Appeal from Common Pleas : Court) Appellee : :
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OPINION
Rendered on November 22, 2024
THOMAS J. INTILI, Attorney for Appellant
T. ANDREW VOLLMAR, Attorney for Appellee
.............
LEWIS, J.
{¶ 1} Plaintiff-Appellant Pedro Badra-Muniz appeals from a judgment of the
Montgomery County Common Pleas Court granting summary judgment to Defendant- -2-
Appellee Vinyl Carpet Service Inc. (“Vinyl & Carpet”) on his negligence claims. For the
reasons that follow, we will affirm the judgment of the trial court.
I. Course of Proceedings
{¶ 2} On May 1, 2019, Badra-Muniz was an employee of a general contractor,
Healthcare Dekor, LLC, and was responsible for supervising a remodeling project at Gem
City Nursing and Rehabilitation Center in Dayton, Ohio. Vinyl & Carpet was a
subcontractor on the remodeling project. Thomas Dixon, an agent of Vinyl & Carpet,
applied a glue and cleaning solution to the floor he was installing and left the area for a
period of time. Shortly after the application of the glue and cleaning solution, Badra-
Muniz entered the room and slipped and fell. He sustained severe injuries to his left
knee. As a result, Badra-Muniz has had two surgeries and undergone extensive physical
therapy.
{¶ 3} On March 15, 2021, Badra-Muniz filed a complaint in the Montgomery County
Common Pleas Court against Vinyl & Carpet and “JOHN DOES (1-99).” According to
paragraph ten of the complaint, “John Doe No. 1, a Vinyl & Carpet Service employee or
agent, spilled an oily substance on the floor, then left the area for extended period of time
without cleaning up the spill or erecting a sign warning of the hazard.”
{¶ 4} On April 1, 2022, Badra-Muniz filed a notice of deposition of Dixon, which
was scheduled to take place later that month. On April 11, 2022, Vinyl & Carpet filed a
motion for summary judgment on Badra-Muniz’s complaint. On May 6, 2022, Badra-
Muniz filed another notice of deposition of Dixon, and the deposition took place on May -3-
24, 2022. Badra-Muniz never served Dixon with a copy of the original complaint.
{¶ 5} On June 3, 2022, Badra-Muniz filed his first amended complaint, in which he
identified Dixon as the agent of Vinyl & Carpet who had spilled the slippery substance
that caused Badra-Muniz to fall and incur significant injuries. A copy of the first amended
complaint was served on Dixon via Federal Express on July 5, 2022.
{¶ 6} On July 19, 2022, Dixon filed a motion to dismiss Badra-Muniz’s action
against him because Badra-Muniz had failed to properly serve him “as required by Civ.R.
15(D)” and “the Amended Complaint is time barred by the applicable statute of
limitations.” While Vinyl & Carpet’s motion for summary judgment and Dixon’s motion to
dismiss were pending, Badra-Muniz filed a motion for leave of court to file a second
amended complaint.
{¶ 7} On September 14, 2022, the trial court issued a decision sustaining Dixon’s
motion to dismiss and overruling Badra-Muniz’s motion for leave to file a second amended
complaint. The trial court found that it was “apparent on the face of the record that Badra-
Muniz failed to comply with Ohio Rules of Civil Procedure 15(D) and 3(A).” The court
rejected Badra-Muniz’s argument that the time to amend his complaint in conformance
with Civ.R. 15(D) and 3(A) had been tolled by R.C. 2305.15. As a result, the trial court
found that the claims raised against Dixon in Badra-Muniz’s first amended complaint were
barred by the statute of limitations. The trial court’s decision cited Civ.R. 54, and it stated
that it was a final appealable order and there was no just cause for delay. No party filed
a timely notice of appeal from the September 14, 2022 decision.
{¶ 8} In April 2023, Vinyl & Carpet filed a supplemental memorandum in support -4-
of its motion for summary judgment, adding the argument that the trial court’s September
14, 2022 decision required the grant of summary judgment in Vinyl & Carpet’s favor. On
September 13, 2023, the trial court granted Vinyl & Carpet’s motion for summary
judgment on Badra-Muniz’s first amended complaint. The trial court found that there
could be no liability assigned to Vinyl & Carpet as Dixon’s employer, because the claims
against Dixon were time-barred. According to the trial court, if the claims against an
employee are time-barred, the Ohio Supreme Court’s decision in Clawson v. Hts.
Chiropractic Physicians, L.L.C., 2022-Ohio-4154, precludes any vicarious liability being
imposed on the employer. Further, the trial court found that Vinyl & Carpet could not be
found liable for negligence based on premises liability because (1) Vinyl & Carpet, as a
subcontractor, did not have possession and control of the premises where the injury
occurred; (2) Badra-Muniz’s work was inherently dangerous; and (3) “Vinyl & Carpet did
not actively participate in [Badra-Muniz’s] work or exercise exclusive control over a critical
variable at the worksite.” Decision (Sept. 13, 2023), p. 14-21. Badra-Muniz filed a
timely notice of appeal from the trial court’s September 13, 2023 decision.
II. The First Assignment of Error Is Overruled Based on Our February 6, 2024
Order
{¶ 9} The first assignment of error states:
THE TRIAL COURT ERRED WHEN IT OVERRULED PLAINTIFF-
APPELLANT’S MOTION FOR LEAVE TO FILE A SECOND AMENDED
COMPLAINT, THEN DISMISSED THOMAS DIXON AS A PARTY -5-
DEFENDANT WITH PREJUDICE.
{¶ 10} This assignment of error concerns the trial court’s September 14, 2022
decision. On January 16, 2024, Vinyl & Carpet moved to partially dismiss the appeal
and to strike a portion of Badra-Muniz’s brief. According to Vinyl & Carpet, Badra-Muniz
failed to file a timely notice of appeal from the September 14, 2022 decision. On
February 6, 2024, we issued an order sustaining Vinyl & Carpet’s motion to partially
dismiss the appeal and to strike a portion of Badra-Muniz’s brief as far as Badra-Muniz
sought to belatedly appeal the trial court’s September 14, 2022 decision. Badra-Muniz
file an application for reconsideration of our February 6, 2024 order, which we denied.
Pursuant to our February 6, 2024 order, the first assignment of error is overruled.
III. The Trial Court Properly Applied Ohio Supreme Court Precedent in Granting
Vinyl & Carpet’s Motion for Summary Judgment
{¶ 11} The second assignment of error states:
THE TRIAL COURT ERRED BY ENTERING SUMMARY
JUDGMENT FOR DEFENDANT-APPELLEE VINYL & CARPET SERVICE,
INC. ON PLAINTIFF-APPELLANT’S CLAIM FOR VICARIOUS LIABILITY.
{¶ 12} Appellate review of a trial court's ruling on a party’s motion for summary
judgment is de novo. Rhododendron Holdings, LLC v. Harris, 2021-Ohio-147, ¶ 22 (2d
Dist.), citing Schroeder v. Henness, 2013-Ohio-2767, ¶ 42 (2d Dist.). De novo review
requires an appellate court to apply the same standard that the trial court should have
used without deference to the trial court’s findings. Riverside v. State, 2016-Ohio-2881, -6-
¶ 21 (2d Dist.).
{¶ 13} Civ.R. 56(C) provides for summary judgment where: “the pleadings,
depositions, answers to interrogatories, written admissions, affidavits, transcripts of
evidence, and written stipulations of fact, if any, timely filed in the action, show that there
is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law.” “Summary judgment will be granted only when there
remains no genuine issue of material fact and, when construing the evidence most
strongly in favor of the nonmoving party, reasonable minds can only conclude that the
moving party is entitled to judgment as a matter of law.” Byrd v. Smith, 2006-Ohio-3455,
¶ 10, citing Civ.R. 56(C) and Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977).
{¶ 14} “The moving party carries the initial burden of affirmatively demonstrating
that no genuine issue of material fact remains to be litigated.” McAlpine v. McCloud,
2021-Ohio-2430, ¶ 11 (2d Dist.), citing Mitseff v. Wheeler, 38 Ohio St.3d 112, 115 (1988).
“Once the moving party has satisfied its burden of identifying those portions of the record
that demonstrate the absence of a genuine issue of material fact, the nonmoving party
bears a reciprocal burden to set forth specific facts showing a genuine issue for trial.”
Shaeffer v. FC Industries Inc., 2023-Ohio-3732, ¶ 15 (2d Dist.), citing Dresher v. Burt, 75
Ohio St.3d 280, 293 (1996). “However, when a motion for summary judgment is made
and supported as provided in Civ.R. 56, the nonmoving party may not rest on the mere
allegations of his pleading, but his response, by affidavit or as otherwise provided in Civ.R.
56, must set forth specific facts showing the existence of a genuine triable issue.”
(Citations omitted.) Mootispaw v. Eckstein, 76 Ohio St.3d 383, 385 (1996). “If no -7-
genuine issue of material fact exists, summary judgment must be awarded as a matter of
law.” Dayton v. Parson, 2023-Ohio-1509, ¶ 6 (2d Dist.).
{¶ 15} Badra-Muniz’s first amended complaint raised negligence claims against
Vinyl & Carpet based on the actions of its agent, Dixon. “ ‘It is a fundamental maxim of
law that a person cannot be held liable, other than derivatively, for another's negligence.’ ”
Comer v. Risko, 2005-Ohio-4559, ¶ 17, quoting Albain v. Flower Hosp., 50 Ohio St.3d
251, 254-255 (1990), overruled on other grounds by Clark v. Southview Hosp. & Family
Health Ctr., 68 Ohio St.3d 435, 444-445 (1994). ”In the employment-law context, ‘the
most common form of derivative or vicarious liability is that imposed by the law of agency,
through the doctrine of respondeat superior.’ ” Clawson, 2022-Ohio-4154, at ¶ 11, quoting
Albain at 255.
{¶ 16} The Ohio Supreme Court has “long recognized that an employer is
vicariously liable for the negligence of its employees under the doctrine of respondeat
superior.” Id. at ¶ 12, citing Clark at 438, citing Councell v. Douglas, 163 Ohio St. 292,
295-296 (1955). “More than 80 years ago, [the Ohio Supreme Court] explained that an
employer may be liable for a wrong committed by its employee when the employer
delegates a course of action to the employee and the employee then commits a tortious
act while acting within the scope of his employment as to the delegated course of action.”
Id., citing Losito v. Kruse, 136 Ohio St. 183, 186 (1940). “The employer and the
employee are not jointly liable under that circumstance; the ‘primary liability’ rests with the
employee who committed the wrong, and the ‘secondary liability’ rests with the employer
by reason of its relationship with the employee-wrongdoer.” Id., citing Losito at 187. -8-
{¶ 17} Given this backdrop, the trial court began its analysis of Badra-Muniz’s
negligence claims by stating that “longstanding Ohio vicarious-liability law has permitted
a plaintiff who was injured by an employee acting within the scope of their employment to
seek damages against either the employee, the employer, or both.” Decision (Sept. 13,
2023), p. 6, citing Losito at 187 and Maple v. Cincinnati Hamilton & Dayton RR. Co., 40
Ohio St. 313, 316 (1883). As the trial court explained, “the traditional rule in Ohio has
not required a plaintiff to actually obtain a judgment against the employee, or to even file
suit against them, in order to prevail on a vicarious liability claim against the employer.”
Id. at 7. “However, starting in 2005, several holdings from the Ohio Supreme Court . . .
appeared to stray from this longstanding rule and blur the distinction between establishing
the negligence of an employee and actually obtaining, or being able to obtain, a judgment
against the employee.” Id.
{¶ 18} The trial court then discussed several Ohio Supreme Court decisions since
2005, including Clawson, 2022-Ohio-4154, and Natl. Union Fire Ins. Co. of Pittsburgh,
PA v. Wuerth, 2009-Ohio-3601. Based on its review of these Ohio Supreme Court
decisions, the trial court concluded that:
The facts and circumstances in the case before this Court are very
similar to those in Clawson. Plaintiff timely filed his initial claims against
Vinyl & Carpet and “John Doe” employee. However, like Clawson, due to
a procedural defect Plaintiff did not timely “commence” his action against
Vinyl & Carpet’s employee, Mr. Dixon. As a result, this Court dismissed
Plaintiff’s claims against Mr. Dixon as being time-barred. . . . -9-
Thus, like Clawson, there can be no liability assigned to the
employee in this case, as the claims against Mr. Dixon are time barred.
Therefore, as the principal and Mr. Dixon’s employer, no vicarious liability
can be imposed upon Vinyl & Carpet pursuant to Clawson.
Decision (Sept. 13, 2023), p. 13-14. The trial court granted summary judgment to Vinyl
& Carpet on Badra-Muniz’s negligence claims.
{¶ 19} Badra-Muniz contends that the trial court misapplied the holdings in
Clawson and Wuerth. According to Badra-Muniz, the trial court instead should have
applied the following well-established rule from Losito: “[w]here a liability arises against
both a master and his servant in favor of a party injured by the sole negligence of the
latter while acting for the master, such injured party may sue either the servant, primarily
liable, or the master, secondarily liable, or both, in separate actions[.]” Losito at
paragraph two of the syllabus. Badra-Muniz contends the holdings from Clawson and
Wuerth that veered from the well-established rule in Losito should only be applied in the
narrow context of professional malpractice actions. In support of his argument, Badra-
Muniz notes that the Ohio Supreme Court has never explicitly overruled Losito.
{¶ 20} Vinyl & Carpet responds that the Ohio Supreme Court’s holdings in Wuerth
and Clawson mandated the trial court’s grant of summary judgment. Vinyl & Carpet cites
recent decisions by the Eighth and Tenth District Courts of Appeals that have upheld
judgments in favor of employers when the plaintiff’s claims against the employer’s agent
failed. Appellee’s Brief, p. 11-12, citing Miller v. NWD 355 McConnell LLC, 2023-Ohio-
3374 (10th Dist.), and Lewicki v. Grange Ins. Co., 2023-Ohio-4544 (8th Dist.). Vinyl & -10-
Carpet also cites Stolz v. J & B Steel Erectors, Inc., 2016-Ohio-1567, for the proposition
that the Ohio Supreme Court has applied its holding from Wuerth to cases outside the
context of professional malpractice actions.
{¶ 21} We agree with the trial court and Vinyl & Carpet that recent Ohio Supreme
Court precedent required the trial court to grant summary judgment in Vinyl & Carpet’s
favor. This is best illustrated by starting with the Ohio Supreme Court’s decision in Losito
and working our way forward.
{¶ 22} In Losito, 136 Ohio St. 183, the Ohio Supreme Court made several points
that have helped shape the doctrine of respondeat superior. First, the Court held that
“[w]hen, under the doctrine of respondeat superior, a master becomes liable in damages
for personal injuries caused solely by the negligent act of his servant, the latter is primarily
liable and the former secondarily liable to the injured party[.]” Id. at paragraph one of the
syllabus. Further, “if the master is obliged to respond in damages by reason of such
liability, he will be subrogated to the right of the injured party and may recover his loss
from the servant, the one primarily liable.” Id. The Court also pointed out that “[a]
settlement with and release of the servant will exonerate the master. Otherwise, the
master would be deprived of his right of reimbursement from the servant, if the claim after
settlement with the servant could be enforced against the master.” (Citations omitted.)
Id. at 188.
{¶ 23} In Comer, 2005-Ohio-4559, a plaintiff filed a complaint alleging that several
physicians had committed medical negligence by failing to timely diagnose and treat
cancer. The plaintiff sued a hospital based on a theory of agency by estoppel. “The -11-
doctors, independent contractors who provided their services pursuant to a contract with
the hospital, were not named as parties to this action. The statute of limitations expired,
and their liability, if any, was extinguished.” Id. at ¶ 9. The Court noted that in such
situations of vicarious liability, “[a]n agent who committed the tort is primarily liable for its
actions, while the principal is merely secondarily liable.” Id. at ¶ 20, citing Losito and
Herron v. Youngstown, 136 Ohio St. 190 (1940). Further, “[t]he liability for the tortious
conduct flows through the agent by virtue of the agency relationship to the principal. If
there is no liability assigned to the agent, it logically follows that there can be no liability
imposed upon the principal for the agent's actions.” Id., citing Losito and Herron.
{¶ 24} The Comer Court explained that, “[i]n situations involving vicarious liability,
there arises the right of indemnity in the party that is secondarily liable. . . . It logically
follows that release of the employee from liability would thwart the employer's ability to
seek reimbursement from the employee for payments made to the plaintiff by destroying
the employer's subrogation rights.” Id. at ¶ 24, citing Wells v. Spirit Fabricating, Ltd., 113
Ohio App.3d 282, 293 (8th Dist. 1996). “Consequently, a direct claim against a hospital
premised solely upon the negligence of an agent who cannot be found liable is contrary
to basic agency law.” Id. at ¶ 25. As a result of the expiration of the statute of limitations
on the plaintiff’s claim against the agent, the Court concluded that “[i]n the absence of the
tortfeasor’s primary liability, there is no liability that may flow through to the hospital on an
agency theory.” Id. at ¶ 29.
{¶ 25} In Wuerth, 2009-Ohio-3601, the Ohio Supreme Court again addressed this
distinction between primary and secondary liability based on a vicarious liability theory. -12-
There, an insurance company sued its attorney for legal malpractice and alleged the
attorney’s law firm was vicariously liable for its employee’s legal malpractice. The
plaintiff insurance company, however, had filed its complaint after the expiration of the
one-year statute of limitations for legal malpractice claims. Id. at ¶ 7-8.
{¶ 26} The Ohio Supreme Court began its analysis by reiterating that “[a]lthough a
party injured by an agent may sue the principal, the agent, or both, a principal is
vicariously liable only when an agent could be held directly liable.” Id. at ¶ 22. It
explained that this principle was consistent with its holdings in Losito and Comer. The
Court stated that “this rule applies not only to claims of respondeat superior, but also to
other types of vicarious liability. . . . There is no basis for differentiating between a law
firm and any other principal to whom Ohio law would apply.” (Emphasis added.) Id. at
¶ 23-24. Based on this principle, the Court held “that a law firm may be vicariously liable
for legal malpractice only when one or more of its principals or associates are liable for
legal malpractice.” Id. at ¶ 26.
{¶ 27} The Ohio Supreme Court then muddied the waters somewhat in State ex
rel. Sawicki v. Lucas Cty. Court of Common Pleas, 2010-Ohio-3299. There, a plaintiff
patient sued his primary-care physician for medical negligence and that physician’s
private employer under the theory of respondeat superior. At the time of treatment, the
physician was both an employee of a state medical college hospital and an employee of
a private employer. The trial court dismissed the claims against the physician, finding
that because the doctor was a state employee during the alleged malpractice, the Court
of Claims had exclusive jurisdiction to determine whether he was acting within the scope -13-
of his employment with the state at the time, which would make him immune from liability.
Plaintiff conceded that he had not filed in the Court of Claims and that such an action was
time-barred.
{¶ 28} The Ohio Supreme Court concluded that the plaintiff could proceed on his
claim against the physician’s private employer in spite of the fact that the physician was
immune from liability. According to the Court, “[a]n employee's immunity from liability is
no shield to the employer's liability for acts under the doctrine of respondeat superior.
. . . A private employer may still be liable even if the employee is personally immune, for
the doctrine of respondeat superior operates by imputing to the employer the acts of the
tortfeasor, not the tortfeasor's liability.” Id. at ¶ 28. The Court distinguished its holding
in Comer based on the fact that it had turned on a theory of agency by estoppel and the
claim in that case had been extinguished by the statute of limitations, not by the
application of immunity. As the Court explained, “ ‘a determination of immunity is not a
determination of liability.’ ” Id. at ¶ 29, quoting Johns v. Univ. of Cincinnati Med. Assocs.,
Inc., 2004-Ohio-824, ¶ 37.
{¶ 29} Finally, the Ohio Supreme Court issued its decision in Clawson, 2022-Ohio-
4154. There, a plaintiff sued her chiropractor and the chiropractor’s employer for medical
malpractice. The plaintiff voluntarily dismissed her initial claims but refiled her claims
within the time allowed by Ohio’s savings statute, R.C. 2305.19(A). Id. at ¶ 2. The
chiropractor filed a motion to dismiss the refiled complaint based on plaintiff’s failure to
perfect service on him within one year of the refiling of her complaint. He also argued
that the one-year statute of limitations applicable to the claims had expired, thus -14-
precluding the plaintiff from filing a valid new complaint against him. Id. at ¶ 6.
Ultimately, the trial court dismissed the plaintiff’s claims against both the chiropractor and
his employer, determining that the employer’s vicarious liability was contingent on the
chiropractor’s direct liability and that, because the primary claims against the chiropractor
were extinguished, so too was the secondary claim against the chiropractor’s employer.
Id. at ¶ 8. On appeal, we held that the plaintiff could pursue her claim against the
chiropractor’s employer for the negligence of the chiropractor even though the trial court
had properly dismissed her direct claim against the chiropractor. Id. at ¶ 9, citing
Clawson v. Hts. Chiropractic Physicians, LLC, 2020-Ohio-5351 (2d Dist.). The
chiropractor’s employer filed a discretionary appeal, which the Ohio Supreme Court
accepted.
{¶ 30} The Ohio Supreme Court began its analysis in Clawson by tracing since
Losito its long recognition that an employer is vicariously liable for the negligence of its
employees under the doctrine of respondeat superior. Id. at ¶ 12. While discussing its
decision in Comer, the Court noted that, “[a]lthough Comer involved an agency-by-
estoppel claim, we did not distinguish between vicarious liability based on the doctrine of
respondeat superior and vicarious liability based on the theory of agency by estoppel.”
Id. at ¶ 16. The Court also noted that its Wuerth decision has resulted in conflicting
interpretations by Ohio’s appellate courts. The Court explained that it had relied in
Wuerth on basic principles of agency law that equally applied to the facts before it in
Clawson. Therefore, the Ohio Supreme Court concluded:
In Wuerth, we applied basic principles of agency law and held, “A law -15-
firm may be vicariously liable for legal malpractice only when one or more
of its principals or associates are liable for legal malpractice.” . . . Not
only did we emphasize the similarities between the legal and medical
professions with respect to liability for malpractice, but we also stated,
“There is no basis for differentiating between a law firm and any other
principal to whom Ohio law would apply.” . . . Today, we hold that the rule
stated in Wuerth applies equally to claims of vicarious liability for medical
malpractice.
Because Clawson had failed to timely serve Dr. Bisesi with her refiled
complaint and because the statute of limitations on her claim against Dr.
Bisesi had expired, Clawson's right of action against Dr. Bisesi was
extinguished by operation of law. As a result, Heights Chiropractic, as Dr.
Bisesi's employer, may not be held vicariously liable for Dr. Bisesi's alleged
Id. at ¶ 32-33.
{¶ 31} The Ohio Supreme Court’s recent guidance regarding vicarious liability in
the principal-agent context is clear. Once liability has been extinguished against an
agent due to the expiration of the statute of limitations, as in the case before us, the trial
court is required to dismiss the derivative claim against the principal if the principal raises
and establishes this defense. As the Ohio Supreme Court has emphasized twice, this
principle applies to any principal to whom Ohio law would apply. Id. at ¶ 32; Wuerth,
2009-Ohio-3602, at ¶ 24. While we understand Badra-Muniz’s attempt to limit the Ohio -16-
Supreme Court’s holdings in Wuerth and Clawson to only cases involving professional
negligence, the language contained in the Ohio Supreme Court’s recent decisions is not
so limited. Therefore, we cannot conclude that the trial court erred in granting Vinyl &
Carpet’s motion for summary judgment.
{¶ 32} The second assignment of error is overruled.
IV. The Trial Court Properly Granted Summary Judgment on The Negligence
Claims as Far as They Relied on Premises Liability
{¶ 33} The third assignment of error states:
INC. ON PLAINTIFF-APPELLANT’S NEGLIGENCE CLAIMS.
{¶ 34} The trial court stated that, “[i]n the negligence context, an employer can
generally only be held vicariously liable for the acts of its employees.” Decision (Sept.
13, 2023), p. 14. The trial court reasoned, however, that an employer may still be liable
for acts of an employee outside the context of respondeat superior if the negligence
claims are based on premises liability. Despite this, the trial court concluded that Vinyl
& Carpet could not be found liable under the theory of premises liability because there
was no genuine issue of material fact that: (1) Vinyl & Carpet did not have possession
and control of the premises where the injury occurred; (2) Badra-Muniz’s work was
inherently dangerous; and (3) “Vinyl & Carpet did not actively participate in [Badra-
Muniz’s] work or exercise exclusive control over a critical variable at the worksite.” Id. at -17-
14-21.
{¶ 35} Badra-Muniz contends that Vinyl & Carpet is liable to him under Ohio’s
frequenter statutes. He argues that Dixon and Vinyl & Carpet controlled the premises
where he slipped and was injured, and he was not engaged in inherently dangerous
conduct at the time he fell. Therefore, Badra-Muniz believes his negligence claim based
on premises liability should have survived summary judgment.
{¶ 36} Vinyl & Carpet responds that it owed no duty to warn employees of the
general contractor, because Vinyl & Carpet did not own or control the premises. Vinyl &
Carpet also contends that it was not required to warn Badra-Muniz of its inherently
dangerous work, because inherently dangerous work serves as its own warning.
A. Deposition Testimony
{¶ 37} In order to resolve this assignment of error, it is necessary for us to review
the deposition testimony of Badra-Muniz and Thomas Dixon. Badra-Muniz was deposed
on January 12, 2022, and testified as follows. In May 2019, he was injured while
employed by Healthcare Dekor, a company for which he had worked since May 2018.
Prior to working for Healthcare Dekor, he worked for about three years with businesses
in the same industry doing painting and wall covering.
{¶ 38} Badra-Muniz began working on the job at Gem City in February 2019 and
was the only Heathcare Dekor employee on site. He was the Assistant Manager for the
Gem City Nursing Home job and described his role as follows:
I was the eyes of the general contractor, so in his absence making -18-
sure work keeps on track. And I also did general labor for them, demolition.
I would take care of the material stock. Like piles of floor would come, and
I would have to come with a pallet jack, bring it to the -- stock it efficiently
so it doesn’t look like a mess.
And I keep track of whatever a worker from the subcontractors need,
the material they would inquire me, well, we need certain planks for this and
that. So that’s how it goes.
Badra-Muniz Depo., p. 16-17. Badra-Muniz also put up zip walls to make sure that
patients did not walk into the worksite. A zip wall is made of plastic that one can tighten
so that the zip may only be opened from inside the plastic, which prevents people from
entering an area they are not supposed to enter.
{¶ 39} Elliott Alvayor and Jon Berl were the owners of Healthcare Dekor. Berl
ordered the material for the subcontractors, and Alvayor scheduled the work of the
subcontractors. Alvayor would come on a regular basis to observe the work.
{¶ 40} Prior to his injury, Badra-Muniz did not have any problems with the
subcontractors on the Gem City job. Jim Miller did the painting on the job, and the
carpentry work was done by Mr. Elbaz, who also had other people working for him. The
painter started first on the job, the flooring crew started about two weeks after the painter,
and the plumber started working on any areas that the flooring crew had completed.
{¶ 41} Vinyl & Carpet was in charge of completing the flooring and sent crews of
2-6 people each day to do the work. Thomas Dixon was the only Vinyl & Carpet worker
whose name Badra-Muniz could remember. The flooring consisted of vinyl planks, -19-
which looked like fake wood. Glue was used to keep the planks in place. Alvayor
ordered the glue for the subcontractors. Badra-Muniz would transport the vinyl planks
with a pallet jack and take them to the storage room. When the subcontractor needed
the planks, it would call Badra-Muniz and tell him how many were needed and what color.
He would then open the storage room for the subcontractor. The subcontractor went
through the same process when it needed glue.
{¶ 42} Badra-Muniz had prior experience assisting in laying this type of vinyl
flooring. After marking off the area for the flooring and preparing the room for installation,
the flooring installers put glue on the area where the planks were to be laid. They waited
20-30 minutes after putting the glue down, then the installers started setting planks in the
glue one at a time. When the glue was first applied, it was either slippery or sticky,
depending on the type of glue. Badra-Muniz characterized the type of glue used at the
Gem City job as midway between sticky and slippery. He observed the Vinyl & Carpet
installers complete the first hallway.
{¶ 43} Badra-Muniz was injured on the second floor of the building while Dixon
was finishing the first hallway by doing the “punch up,” a term that described the time
spent fixing a few little things after the flooring had been laid down. Badra-Muniz
described Dixon as experienced. Dixon did not lay the floors by himself, but he was in
charge of doing the punch work. At the time he was injured, Badra-Muniz was
supervising work. He was aware that Dixon was doing punch up work and went to
check on him. When he walked into the room, Dixon was not in there, and Badra-Muniz
slipped and fell due to some excess glue that Dixon left there after he had cut planks to -20-
make them fit properly as part of his punch up work. Badra-Muniz stated that Dixon was
probably taking a smoking break when he was injured. He did not know when Dixon left
to go on break and testified that, if he had seen him on break, Badra-Muniz would not
have walked into the room.
{¶ 44} The glue was a light brown color, and the planks were gray. According to
Badra-Muniz, the length of time it took the glue to dry to the point at which it was sticky
and no longer slippery was anywhere between six hours to the next day. He saw the
plank he slipped on before he slipped, but it looked clean and safe to walk on. He
testified about what he believed caused his accident: “The thing is, [Dixon’s] cleaning of
the glue was unsuccessful. He did not clean it enough. He used the solvent to remove
this glue. And it’s solved a bit, but it just made the plank very slippery. And you couldn’t
see the glue anymore, and it looked -- it looked ready. I passed through, and I fell.”
Badra-Muniz Depo., p. 86. Badra-Muniz did not know what type of solvent Dixon had
used because the subcontractor ordered its own solvent. He would not say that it was
Dixon’s fault that there was too much glue, but he believed it was Dixon’s fault that the
glue was not thoroughly cleaned.
{¶ 45} After he fell, Badra-Muniz began screaming, and Dixon came running in and
tried to clean next to him. According to Badra-Muniz, as he was laying there in pain,
Dixon “didn’t even [come] to actually help me out, he came to finish cleaning what he
failed to clean.” Id. at 93. The plumber then helped Badra-Muniz across the street to a
hospital. Badra-Muniz was on crutches for approximately two or three months after
being treated for his injury. He was not aware that he could be covered by workers’ -21-
compensation until he was recovering in Chicago, Illinois. After his physical therapy was
finished, he began receiving about $1,200 per week in workers’ compensation benefits.
He continues to have problems with his left knee.
{¶ 46} Thomas Dixon was deposed on May 24, 2022. He testified as follows
about the Gem City Nursing Home job. The job entailed laying flooring on four or five
floors with about 7,000 square feet per floor. There were five people on the floor on the
day of Badra-Muniz’s injury: one applying wallpaper, one plumber, two Vinyl & Carpet
employees, and Badra-Muniz. According to Dixon, Badra-Muniz was supposed to be
the superintendent of the project, but the other workers there “kind of led Pedro.” Dixon
Depo., p. 12. He did not believe Badra-Muniz had much construction experience or any
expertise in flooring. Dixon did not receive any instruction from Badra-Muniz or the
general contractor as to how to lay the flooring.
{¶ 47} Dixon received formal training for floor installation and additional on-the-job
training. With each glue, he would read the instructions and determine which size trowel
the manufacturer recommended. His work in the flooring business went back to the
1980s. He had also taken hundreds of hours of OSHA training.
{¶ 48} On the day of the injury, Dixon told Badra-Muniz that he was going to be
doing the doorways, going door to door. This was part of the scope of work, not part of
finishing a punch list. Dixon testified that he was only a few feet away when Badra-Muniz
fell. Prior to the fall, Dixon had put glue with a trowel on the back of a vinyl piece and
placed it on the floor. Badra-Muniz had watched Dixon put it in place. Dixon testified
as follows as to what happened immediately before Badra-Muniz fell: -22-
My tool bag was sitting behind me. I had put the piece in place. I
had put a little mineral spirits -- now this is one doorway. That one
doorway, I’m going to tell you, and you can -- it’s like a third of a foot, on
7,000 feet in a building on the floor.
Pedro watched me put it in. Stood there. And what I did is I wiped
it, put a little mineral spirits down, right? Had the torch there. Had the
straight edge there. Had my light there. What I did is -- the cart was at
the room I had just done, right? Now, mineral spirts evaporates anyway if
you leave it there long enough.
...
The little extra glue that had seeped out in that little inch-and-a-half
strip in that doorway, right? I was using mineral spirits so the glue didn’t
dry on top. I had used one rag and realized -- this is down -- I’m on my
knees blocking the doorway from the hallway at this moment, right? And I
thought I’m going to need a second rag. In the few moments that I walked
from, like, this door to that bathroom door, grabbed a rag, I’m coming back,
Pedro is standing in the doorway. He stepped over my tools. He’s
wearing gym shoes. Steps about two feet away and slips and falls. And
I’m like, what are you doing?
Dixon Depo., p. 19-20. Dixon believed he left the room for no longer than 20 or 30
seconds, but it may have been as little as 7 seconds. He only had to go about 12-15
feet and back to grab a rag from the cart in the previous room. Dixon was only 3 feet -23-
away when Badra-Muniz slipped and fell. According to Dixon, Badra-Muniz got up and
walked away after he fell.
{¶ 49} When Dixon worked on the corridors, he would put up caution tape, signs,
and cones. But when he did the rooms, he just placed his tool bag in the way. He did
not think there was anything else he could have done to prevent Badra-Muniz’s injury
other than move his cart to block the entrance to the room. Dixon described the mineral
spirits that Badra-Muniz slipped on as “half wiped up” and that it would have been
completely wiped up once Dixon had returned with the rag from the next room. Id. at 26.
After Badra-Muniz got up and walked away, Dixon wiped up the rest of the mineral spirits.
B. Frequenter Statutes
{¶ 50} R.C. 4101.11 and 4101.12 are commonly referred to as the “frequenter
statutes.” R.C. 4101.11 provides:
Every employer shall furnish employment which is safe for the
employees engaged therein, shall furnish a place of employment which
shall be safe for the employees therein and for frequenters thereof, shall
furnish and use safety devices and safeguards, shall adopt and use
methods and processes, follow and obey orders, and prescribe hours of
labor reasonably adequate to render such employment and places of
employment safe, and shall do every other thing reasonably necessary to
protect the life, health, safety, and welfare of such employees and
frequenters. -24-
{¶ 51} R.C. 4101.12 provides:
No employer shall require, permit, or suffer any employee to go or
be in any employment or place of employment which is not safe, and no
such employer shall fail to furnish, provide, and use safety devices and
safeguards, or fail to obey and follow orders or to adopt and use methods
and processes reasonably adequate to render such employment and place
of employment safe. No employer shall fail to do every other thing
reasonably necessary to protect the life, health, safety, and welfare of such
employees or frequenters. No such employer or other person shall
construct, occupy, or maintain any place of employment that is not safe.
{¶ 52} “Originally enacted to benefit employees, these statutes are ‘no more than
a codification of the common-law duty owed by the owner or occupier of premises to
business invitees to keep his premises in a reasonably safe condition and to give
warnings of latent or concealed perils of which he has, or should have, knowledge.’ ”
Kucharski v. Natl. Eng. & Contracting Co., 69 Ohio St.3d 430, 432-433 (1994), quoting
Westwood v. Thrifty Boy Super Markets, Inc., 29 Ohio St.2d 84, 86 (1972). “The
subsequent passage of the Ohio Workers' Compensation Act, which protected covered
employers from damage suits brought by employees injured on the job, rendered these
statutes largely obsolete.” Id. at 433, citing Ford Motor Co. v. Tomlinson, 229 F.2d 873,
879 (6th Cir. 1956). “They continue to be used, however, by injured employees of
subcontractors who seek damages, in addition to workers' compensation benefits, from -25-
the property owners, or contractors in privity with their employers, who fail to keep the
property safe from hazards for ‘frequenters.’ ” Id.
{¶ 53} “The duty owed to frequenters, i.e., including employees of other
companies, is no more than a codification of the common-law duty owed by an owner or
occupier of premises to invitees, requiring that the premises be kept in a reasonably safe
condition, and that warning be given of dangers of which he has knowledge.” Eicher v.
U.S. Steel Corp., 32 Ohio St.3d 248, 249 (1987), citing Westwood at paragraph one of
the syllabus. “However, the duty to frequenters of places of employment, as 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.” Id. A construction site is an inherently dangerous setting.
Bond v. Howard Corp., 72 Ohio St.3d 332, 336 (1995). “[A] subcontractor who works at
a construction site is engaged in inherently dangerous work.” Michaels v. Ford Motor
Co., 72 Ohio St.3d 475, 479, fn. 4 (1995), citing Bond at 334.
{¶ 54} “One who engages the services of an independent contractor, and who
actually participates in the job operation performed by such contractor and thereby fails
to eliminate a hazard which he, in the exercise of ordinary care, could have eliminated,
can be held responsible for the injury or death of an employee of the independent
contractor.” Hirschbach v. Cincinnati Gas & Elec., 6 Ohio St.3d 206 (1983), syllabus.
Active participation “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.” Bond at 337. “A general contractor who has not actively -26-
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., 21 Ohio St.3d
110 (1986), syllabus. Thus, active participation means more than supervising or
coordinating. Id. The employer must exercise control over the work activities or retain
control over a critical variable in the workplace before it can be held liable to the
independent contractor's employees. Sopkovich v. Ohio Edison Co., 81 Ohio St.3d 628,
643 (1998). The Ohio Supreme Court has summarized its general analysis as follows:
As is evident from our cases, when determining if a duty of care is
owed pursuant to the frequenter statutes, the legal test is the same for
owners and general contractors: Did the party have custody or control of
the injured employee, the employment, or the place of employment? The
answer to this question obviously depends upon the specific circumstances
of each case, not the general status of the parties.
Michaels at 478, fn. 3.
{¶ 55} Based on our review of the evidence of record, including the deposition
testimony summarized above, we conclude that the trial court did not err in granting
summary judgment in favor of Vinyl & Carpet on Badra-Muniz’s negligence claims that
were based on premises liability law. There was no evidence that Vinyl & Carpet had
custody or control of the injured employee, the employment, or the place of employment.
Id. Badra-Muniz was the employee of the general contractor. Vinyl & Carpet was a
subcontractor that had no control over Badra-Muniz or his employment. Further, no -27-
evidence was presented that Vinyl & Carpet had control over the place of Badra-Muniz’s
employment. While Badra-Muniz argues that Dixon had control over the area where
Badra-Muniz was injured, he presented no evidence that Vinyl & Carpet actively
participated in any control that Dixon was exercising over that area at the time of the
injury. As we explained in our resolution of the second assignment of error, Badra-Muniz
cannot establish liability under a respondeat superior theory because Dixon was
dismissed from the lawsuit based on the expiration of the statute of limitations. The Ohio
Supreme Court stressed in its Wuerth decision that the rule that a principal is vicariously
liable only when an agent could be held directly liable applies not only to claims of
respondeat superior but also to other types of vicarious liability. Wuerth, 2009-Ohio-
3601, at ¶ 23.
{¶ 56} The record also contains no evidence establishing the necessary privity
between Badra-Muniz’s employer and Vinyl & Carpet. See Kucharski, 69 Ohio St.3d at
433. We also note that the factual scenarios involving the frequenter statutes typically
involve an employee of a subcontractor who sued the general contractor or owner of the
building where the construction project was being completed. In those instances, an
argument can be made that the general contractor or owner exercised some control over
the work of the subcontractor and the place of employment. Such control seems to be
inherently lacking in the instant case where an employee of a general contractor sued a
subcontractor. Typically, a subcontractor has much less control (if any) over the
construction area and the general contractor’s employees than the owner of the building
or the general contractor does. Although Dixon testified in this case that the employees -28-
of the various subcontractors appeared more experienced than Badra-Muniz, this in no
way created a genuine issue as to whether Vinyl & Carpet exercised any active control
over Badra-Muniz’s employment or place of employment. Finally, the Ohio Supreme
Court has made it clear that the duty to frequenters does not typically extend to situations
involving hazards that are inherently and necessarily present, like those present at a
construction site.
{¶ 57} The trial court did not err in granting summary judgment to Vinyl & Carpet
on Badra-Muniz’s negligence claims. The third assignment of error is overruled.
V. Conclusion
{¶ 58} Having overruled all of the assignment of errors, we will affirm the judgment
of the trial court.
EPLEY, P.J. and HUFFMAN, J., concur.