[Cite as Heiert v. Crossroads Community Church, Inc., 2021-Ohio-1649.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
JOHN HEIERT, : APPEAL NO. C-200244 TRIAL NO. A-1901458 and :
DANA HEIERT, : O P I N I O N.
Plaintiffs-Appellants, :
and :
OHIO BUREAU OF WORKERS’ : COMPENSATION,
Intervenor-Plaintiff-Appellant, :
vs. :
CROSSROADS COMMUNITY : CHURCH, INC.,
CROSSROADS WESTSIDE, :
THE CINCINNATI AIR : CONDITIONING COMPANY,
RICHARD GOODSON, :
Defendants-Appellees. : ________________________________________________________________________
ROBERT COAKLEY, : APPEAL NO. C-200391 TRIAL NO. A-1901475 Plaintiff-Appellant, :
and : O P I N I O N.
vs. : OHIO FIRST DISTRICT COURT OF APPEALS
Defendants-Appellees. :
Civil Appeals From: Hamilton County Court of Common Pleas
Judgments Appealed From Are: Affirmed
Date of Judgment Entry on Appeal: May 12, 2021
Law Offices of Blake R. Maislin, LLC, and Randy A. Byrd, for Plaintiffs-Appellants John Heiert, Dana Heiert, and Robert Coakley,
The Sammarco Law Firm, LLC, and Alissa Sammarco, for Plaintiff-Appellant Robert Coakley,
David A. Yost, Ohio Attorney General, Sonnet and Goldblatt, Ltd., Office of Appointed Special Counsel for the Ohio Attorney General, Greg A. Goldblatt and Andrew D. Sonnek, for Intervenor-Plaintiff-Appellant Ohio Bureau of Workers’ Compensation,
McCaslin, Imbus, and McCaslin, and William M. Cussen, for Defendants-Appellees Crossroads Community Church, Inc., Crossroads Westside, and Richard Goodson,
Barron, Peck, Bennie, & Schlemmer Co., LPA, and Arthur H. Schlemmer, for Defendants-Appellees Crossroads Community Church, Inc., and Crossroads Westside,
Matthew R. Skinner, for Defendant-Appellee The Cincinnati Air Conditioning Company.
2 OHIO FIRST DISTRICT COURT OF APPEALS
ZAYAS, Presiding Judge.
{¶1} Raising two assignments of error, plaintiffs-appellants John Heiert,
Dana Heiert, and Robert Coakley bring these consolidated appeals to challenge the
trial court’s grant of summary judgment in both cases in favor of defendants-
appellees Crossroads Community Church, Inc., (“Crossroads”) Crossroads Westside,
The Cincinnati Air Conditioning Company (“Cincinnati Air”), and Richard Goodson.
For the following reasons, we overrule both assignments of error and affirm the
judgments of the trial court.
Factual and Procedural Background
{¶2} Plaintiffs-appellants filed respective complaints against defendants-
appellees, alleging claims for negligence and a declaratory judgment.1 The claims
arise from a boiler explosion that occurred at the Crossroads Westside campus on
January 6, 2016. The explosion occurred while two employees of Blau Mechanical
(“Blau”), plaintiffs-appellants John Heiert and Robert Coakley, were working on one
of two boilers located at the Crossroads Westside facility. The undisputed cause of
the explosion was a jumper wire installed on the boiler’s oil/gas toggle switch. What
remains to be known, and what is essential to this case, is who installed the jumper
wire that caused the explosion.
{¶3} In both cases, Crossroads, Crossroads Westside, and Goodson,
collectively, and Cincinnati Air, separately, filed motions for summary judgments.
1 Both complaints also listed Stephen Buehrer, in his official capacity as Administrator of the Ohio Bureau of Workers’ Compensation, as a defendant. However, the Ohio Bureau of Workers’ Compensation (“OBWC”) filed a motion in each case to be realigned as a named party plaintiff. The trial court granted both motions, allowing OBWC to intervene as a named party plaintiff in both cases, and OBWC filed a complaint against defendants-appellees in each case. Both complaints also list “John Does I though X” as defendants. However, there is no indication in the record that any additional party was ever identified in either case, nor any indication that any John Doe defendant was served. The Heiert complaint also alleged a claim for loss of consortium.
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Essentially, the motions argued that plaintiffs-appellants failed to present evidence
that any defendant installed the jumper wire. In response, plaintiffs-appellants filed
a memorandum in opposition to the summary-judgment motions, arguing that (1)
when the jumper wire was installed and who installed the jumper wire were issues of
material fact to be decided at trial, and (2) the doctrine of res ipsa loquitor should be
applied. Ultimately, the trial court granted summary judgment, finding no evidence
to show that any defendant installed the jumper wire or acted negligently, and no
evidence to show that the explosion and resulting injuries were the result of any
action by the defendants. Additionally, the trial court found the doctrine of res ipsa
loquitor to be inapplicable.
{¶4} The evidence in the record included (1) depositions of Richard
Goodson, Mike Cordeiro, John Heiert, Brad Davis, Mark Sokalski, and Richard
Kovarsky, (2) two affidavits of Richard Kovarsky, and (3) an affidavit of Mike
Cordeiro.2
Depositional Testimony of Richard Goodson
{¶5} Crossroads Westside was a relatively recent acquisition by Crossroads,
and Richard Goodson was the first facilities director, working there for about two
years prior to the explosion. As the facilities director, he was responsible for
maintaining the overall condition and safety of the property, which included
maintaining the building, cleaning, and making minor repairs. More specifically,
regarding the two boilers located at the facility, his responsibilities were to “shut
them off when we didn’t need heat and turn them back on when the heat season
began.”
2The record in the appeal numbered C-200391 also included the depositional testimony of Robert Coakley.
4 OHIO FIRST DISTRICT COURT OF APPEALS
{¶6} In December of 2015, Goodson called Cincinnati Air to come and look
at the boilers after discovering that boiler 1 was leaking and boiler 2 was not coming
on.3 This was the first time he experienced any issues with the boilers while working
there. The boilers had not been serviced prior to this time. The boilers were
inspected by the state inspector in September of 2015.
{¶7} Goodson did not try to troubleshoot the issue himself or service the
boilers at all, and no one else tried to service or troubleshoot the boilers before
Cincinnati Air arrived. When he contacted Cincinnati Air, he told them that boiler 2
was going into “flame out,” which he described as referring to an indicator light,
labeled “flame out,” that would come on every time he turned the boiler on and it
“went through a run through.” Once the light came on, the system would shut off.
{¶8} Cincinnati Air came to Crossroads Westside to work on the boilers on
three occasions: December 10, December 11, and December 14, 2015. Goodson
testified that two people arrived from Cincinnati Air to work on the boilers, but he
did not recall who they were.4 On the first visit, they checked boiler 1 and
determined condensation was coming from the boiler because of a cold fire start up
issue. They told Goodson this was normal, and it would dissipate after about an
hour. They then started diagnosing the issue with boiler 2. They were at Crossroads
Westside for around four hours the first day, and boiler 2 was still not working when
they left.
{¶9} On the second day, they continued to try to diagnose the issue with
boiler 2. When they left on the second day, they informed Goodson that parts were
3 For convenience, the boilers will be referred to as boiler 1 and boiler 2. Boiler 2 is the boiler that eventually exploded. 4 Since the witness could not recall the names of the two individuals from Cincinnati Air, he generally referred to them as “they” throughout the deposition. We will do the same here.
5 OHIO FIRST DISTRICT COURT OF APPEALS
needed and that they would be sending a proposal of suggested repairs. On the third
visit, they came out to get part numbers and give pricing. Goodson did not have any
contact with them on the third day.
{¶10} Goodson was in and out of the room during the first two visits, so he
could not testify to everything they did while they were there. However, he did
observe them remove the cover to the control box, and observed them “flip-flopping”
parts, such as the flame safeguard control and the control board, from boiler 1 to
boiler 2. He never saw them change any wiring configurations within the control
box. They advised Goodson that the flame safeguard control for boiler 2 was
defective and not to use boiler 2.
{¶11} It took a few weeks after their last visit to get the proposal from
Cincinnati Air. The proposal listed the flame safeguard control and several other
parts to be replaced on boiler 2. The proposal concerned Goodson because he saw
them place the flame safeguard control from boiler 1, the functioning boiler, on
boiler 2, and boiler 2 still did not work. He was also concerned with the high price
that was quoted in the proposal.
{¶12} Within a few days of receiving the proposal, Goodson called Blau for a
second opinion. Two employees from Blau, John Heiert and Robert Coakley, arrived
a few days later, but he is not sure what that date was. He knew the explosion
occurred on January 6, 2016; however, he does not remember if Blau came out on
more than one occasion. When Heiert and Coakley arrived, Goodson walked them
through what he knew about what had been done prior to their visit. He told them
that Cincinnati Air had been there and told them why he had called Blau. The flame
safeguard control was intact on boiler 2 when they arrived.
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{¶13} Heiert and Coakley worked on the boilers for several hours before the
explosion occurred. Heiert was the technician, and Coakley was his helper. Goodson
was with them the entire time. When asked about everything that Blau had done
that day, Goodson testified as follows:
When I explained to John exactly what Cincinnati Air - to my
knowledge exactly what Cincinnati Air had done as far as bringing
parts from boiler number one to boiler number two, he started doing
the same process and was taking parts from boiler number one over to
number two, again to diagnose it to see if it would come on.
When he took the flame guard sensor loose from boiler number
two, he told me to look at it, and there was a washer that was down
inside of the casing of the flame sensor. He said, I bet that’s your
problem. That may fix it right now. He pulls the washer out. He said
the washer didn’t belong there. He said that that may be disrupting
the eye where it couldn’t see the flame. So he took that out, put it back
together, went to fire it up. Nothing. It did the same thing, flame-out.
So then he took the one from boiler number one and placed it on boiler
number two, and he had the same results that Cincinnati Air had all
the way through all the testing.
Then from that point, he was doing some diagnosing as far as
trying to find out if the control was sending a call to -- a call for heat.
Then he went from that point, he said that he was not getting a call for
the gas valve to open, so he was not sure whether it wasn’t getting a
call for it to open or if it wasn’t operating, if the gas valve was
defective.
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Then he said that he was going to wire the gas valve where it
would operate without being called from the control unit. So he wired
-- and I’m not exactly sure what he did in the control panel, but he
wired the gas valve to where it got power straight through to it. Then
there’s a flow meter that’s on the gas valve, and the little thing that’s in
the flow meter pegged. It we [sic] went straight up. And he said, well,
that shows me that the gas valve is operating because the flow meter
pegged.
Like I said, from that point, I’m not sure what he wired or
didn’t, because he just started diagnosing more and more things. He
tried to fire it up a couple more times, and there was no issue -- I mean
no fire up. Still had the same problems.
And then our-the FI director, Joe Curry, came downstairs. He
had just got there from Oakley and was just wanting to see what was
going on. I was talking to him when the campus pastor walked in, and
John was still down and still diagnosing. And I was talking to Greg
McElfresh, which is the pastor, and we walked over in front of the
boiler, and I was explaining to Greg everything that John had gone
through, and that he had basically mirrored everything that Cincinnati
Air had done.
As I was talking to Greg, he was running it through another
sequence, and that’s when the explosion occurred.
{¶14} Goodson further explained that, when Heiert had the cover of the
control box removed, he was using a meter to check for power and sequences. He
testified that Heiert “explained to me that he was sending a signal straight through to
8 OHIO FIRST DISTRICT COURT OF APPEALS
open the gas valve up to bypass any of the calls, and that was to confirm that the
diaphragm was opening on the gas valve.” He did not see Heiert remove the oil/gas
toggle switch. He did not know what wiring was done, whether the wiring was ever
put back to the original configuration, or if Heiert installed the jumper wire. He
never saw Heiert prepare a jumper wire.
{¶15} While Heiert was working on the boiler, Coakley was going behind the
boiler to check for a flame. He was standing to the right of the boiler when the
explosion occurred. Coakley never touched anything within the control box. No one
other than Heiert had access to the control box on boiler 2 on the day of the
explosion.
{¶16} Goodson denied that anything was done to boiler 2, by himself or
anyone else, from December 14, 2015, to January 6, 2016. He also denied ever
removing the cover to the control box on boiler 2 or ever installing a jumper wire on
any boiler. He was not aware of anything that Cincinnati Air did or failed to do that
would cause the boiler to explode.
Affidavit and Depositional Testimony of Mike Cordeiro
{¶17} Mike Cordeiro is a service technician for Cincinnati Air. He first
arrived at Crossroads Westside on December 10th. He testified that he was alone on
the first day. He met with Goodson when he first arrived. Goodson informed him
that the boilers were leaking water and “tripping on the flame safeguard.” The first
thing he did was look at the leaking issue. He discovered that neither boiler was
leaking and that it was just a condensation issue. He then started troubleshooting
the other problems by checking the safeties and checking electrical connections. He
also looked at the reducing valves and cleaned the screens. Goodson was not in the
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room with him the whole time he was there. Cordeiro did not discover any issues on
the first day.
{¶18} Cordeiro was also alone when he came back the next day. Goodson
was around a little bit, but Cordeiro was mainly by himself. Cordeiro cleaned the UV
sensors on both boilers, and this fixed the issue with boiler 1. He denied switching
out any parts on either boiler. He could not recall if he removed any switches, or if
he noticed anything unusual that should not have been there when he looked inside
the burner control. He continued to check voltages and connections and tried to
cycle boiler 2 several times that day. He eventually removed the flame safeguard
from boiler 2 and took it to a local supply house to have it tested. The test failed,
which meant the part needed to be replaced. He went home for the day after the test
was complete. The flame safeguard remained in his work truck until he returned on
December 14th.
{¶19} On December 14th, he performed maintenance on the boilers, such as
greasing pumps, checking safeties, and checking the operation of the boilers. He also
brought the flame safeguard control back and placed it on top of the control box. He
did not reinstall the flame safeguard control onto boiler 2 before he left. He left the
boiler with no gas or electricity running to it. He did not see a jumper wire on the
boiler and could not say whether the jumper wire was in place on the boiler when he
was there. He denied ever fashioning a jumper wire or installing a jumper wire on
boiler 2.
{¶20} In his affidavit filed with Cincinnati Air’s motion for summary
judgment, Cordeiro again denied installing the jumper wire on boiler 2.
10 OHIO FIRST DISTRICT COURT OF APPEALS
Depositional Testimony of John Heiert
{¶21} John Heiert is a service technician with Blau. When he arrived at
Crossroads, Goodson told him the boiler had been “down” and that Cincinnati Air
had been there to work on it. He then walked into the boiler room and saw two
identical boilers. He suggested to Goodson that they “swap” the flame safeguard to
see if it worked, and Goodson told him Cincinnati Air had already tried swapping the
flame safeguard and the UVI. However, he told Goodson he wanted to see if for
himself.
{¶22} Heiert determined the flame safeguard control from boiler 2 was
functional by swapping the parts between boiler 1 and 2. When he swapped the
parts, boiler 1 still fired up and boiler 2 still did not. Heiert described the story of
what happened that day as follows:
Well, like I said, when we walked down in there, me, Richard,
and Robert—we were talking about everything that was going on.
Then I went out and got my tools, my tool bag, and we started doing
the service work.
After a visual inspection—I visually inspect everything around
the boiler to make sure there’s nothing obvious.
But I started on the service work, and that’s when I changed out the
flame safeguard and the I—the UVI. We found that those [were not]
the problem.
Then I went through and I had to take all of the covers off all of
the four-by-four junction boxes, all the safeties around the boiler so I
could get to the wiring to check voltages, and I wanted to check
continuity on all of the safeties.
11 OHIO FIRST DISTRICT COURT OF APPEALS
So I did all of that, and then I wanted to check to make sure—I
didn’t know if that boiler runs straight off its limits or if it has a VAS
system. I had never been there before. I didn’t know what controlled
it. So I had to spend some time on looking into that.
Then once I found out all of the safeties and stuff were made
and we knew that it wasn’t that, we could eliminate that, you start
working back to the burner.
And then in that time frame when I had the burner cover off
and I was in there—and I turned the boiler off with the disconnect on
the side of the boiler—because when you swap parts, you want to do
that because its three-phrase electric inside there, and you don’t want
to get lit up, so power down at the disconnect.
***
Well, in the midst of checking all of the safeties and finding out
they were good, when I went to the burner in the front and I started
checking voltage inside the burner cabinet itself, that’s when—I had
the disconnect on for the last time.
I don’t know how long the time—it must have been, I guess, a
good amount of time, I don’t know how long, and then when I went to
flip the switch on—because you have to have it on so you can check
voltage—and when the boiler went to line off, I don’t remember a
whole lot after that.
{¶23} Heiert testified that the flame safeguard was intact on boiler 2 when he
arrived. He did not notice anything unusual about the wiring configuration or the
switches. The only thing he noticed was that the boilers were old, looked like they
12 OHIO FIRST DISTRICT COURT OF APPEALS
had not had much maintenance done, and were not well maintained. He testified
that the oil/gas toggle switch was in place when he got there. At the time of the
explosion, he was using a voltmeter to check continuity. He connected his voltmeter
to the boiler and then turned on the toggle switch. The boiler went through its cycle
and that was when the explosion occurred.
{¶24} He denied altering the wiring at any point. He admitted he removed/
lowered the toggle switch because he could not get his leads “in there to check
voltages,” but denied changing the wiring to the toggle switch when he removed it.
He also denied installing a jumper in the burner control. He admitted he does not
know who installed the jumper wire, or when the jumper wire was installed. He
denied being aware of any evidence that Cincinnati Air negligently performed service
work on the boiler at issue or left the boiler in an unreasonably dangerous condition,
and admitted he has no idea if Crossroads or anyone on its behalf did or failed to do
anything to cause the explosion.
Depositional Testimony of Brad Davis and Report of Envita Forensics
{¶25} Brad Davis works for Envita Forensics (“Envita”). Envita was retained
by Brotherhood Insurance to determine the cause of the boiler explosion. Davis’s
depositional testimony mainly discussed Envita’s report. The conclusions in the
report were:
1) It was discovered that a black jumper wire was attached to the
oil/gas toggle switch that opened the natural gas at the
beginning of the burner start up sequence. This allowed
natural gas to enter the boiler during the air purge sequence
and when the pilot light was lit. This caused the explosion to
occur within the boiler.
13 OHIO FIRST DISTRICT COURT OF APPEALS
2) No evidence was discovered that any employee of Crossroads
Community Church installed this black jumper wire on the
oil/gas toggle switch.
3) The black jumper was installed during Blau Mechanical’s
troubleshooting prior to the explosion.
Depositional Testimony and Report of Mark Sokalski
{¶26} Mark Sokalski is a licensed engineer and the senior project manager at
Civil and Environmental Consultants, Inc. Sokalski was retained by the plaintiffs’
counsel to determine the proximate cause of the explosion. The conclusions in
Sokalski’s report are as follows:
1) The proximate cause of the explosion was the installation of an
electrical black jumper wire from terminal 4G to GV. This
jumper wire permitted the main gas valve to fully open any
time the main control switch (S1) was turned on.
2) While it is common during troubleshooting to temporarily
install an alligator type jumper wire around a safety device to
check the operation, no permanent jumper wire should ever be
installed.
3) The installer of this black jumper wire, bypassing at least eight
safety interlock and directly activating the main gas valve, is
presently unknown.
4) John Heiert did not install this black jumper wire.
5) Insufficient evidence exists, at the present time, as to
determining who installed this black jumper wire.
14 OHIO FIRST DISTRICT COURT OF APPEALS
{¶27} Sokalski testified that “[t]he proximate cause is that an actual wire
existed energizing the fuel valve without the ignitor. * * * Bypassing the ignitor
system. Typically, the pilot has to be on before the gas valve will open. This jumper
wire opens the gas valve, and then any time you would do anything inside the
electronics and create an ignition source or arching on the ignitor, it’s going to
explode. So that was the proximate cause.”
{¶28} Importantly, when preparing his report, Sokalski only relied on the
deposition testimony of Heiert. He did not review the testimony of any other witness
or review the fire department reports. He admitted it would be important to review
the other witness testimony before determining who may be responsible for the
explosion. He spoke to Heiert personally at the accident site and Heiert told him he
“didn’t touch anything except move the controllers back and forth.” When he
discussed his conclusion that Heiert did not place the jumper wire, he stated:
Well, I went through my evidence and my chronological turn of
events and based on the fact that it was hard wired in and from his
testimony, I made the determination that he couldn’t have known that
it existed. Either that or he was suicidal. And to me, that just didn’t
sound logical that he would have put the wire on to keep the gas valve
wide open through the entire purge process and then decided to --
while its running to throw a match to it. That doesn’t sound logical. I
came up with the determination based on the chronological turn of
events -- and from what he told me on the first day that that’s all he
did and didn’t touch anything else on the system, that indicated that he
didn’t put the wire on, so that was my conclusion.
15 OHIO FIRST DISTRICT COURT OF APPEALS
{¶29} He admitted he never asked Heiert directly if he installed the jumper
wire and admitted that he did not see Heiert’s testimony that he removed the gas/oil
toggle switch. Thus, Sokalski conceded during his deposition that it’s possible that
Heiert did install the jumper wire. He then refined his answer and stated:
I didn’t suspect he did, but now that you have that he took that
out of there, then that means it goes back to what was the work that
was done on this prior. It doesn’t mean he did. It does mean that
somebody -- somebody removed it at some point in time and put the
wire on -- could have put it back in there, but I can’t answer that
because I don’t have enough evidence one way or the other.
{¶30} After reviewing portions of Goodson’s testimony during the
deposition, Sokalski admitted that Goodson’s testimony that Heiert told him he was
rewiring the gas valve was “significant because that would be similar to what the
jumper wire left in there was doing.” Thus, he admitted there were “implications”
that Heiert installed the jumper wire. He also admitted he did not have enough
information to say who installed the jumper wire and did not have any evidence that
Crossroads or Goodson did anything to cause the explosion.
Affidavit of Richard Kovarsky
{¶31} Richard Kovarsky was retained by plaintiffs’ counsel to determine the
factor or factors which led to the boiler explosion. In his affidavit, Kovarsky noted
that the jumper wire was hard wired onto the switch and would not have been readily
visible because the switch was installed in the boiler control panel. He also noted
that installing the jumper wire would require the switch to be removed from its
mounting location, and Heiert was the only one who acknowledged removing the
switch. However, he believed Heiert had no reason to install the jumper because the
16 OHIO FIRST DISTRICT COURT OF APPEALS
use of a hardwired jumper did not make sense for the type of troubleshooting that
Heiert was conducting.
{¶32} Kovarsky concluded, “[I]t is my opinion, to a reasonable degree of
engineering certainty, that the source of the natural gas that resulted in the explosion
that injured Mr. Heiert was the release of gas through the main gas valve due to a
jumper on the oil/gas toggle switch which constantly energized this value as long as
there was power to the boiler. The exact ignition source for the gas is currently
undetermined.” Additionally, Kovarsky stated:
My analysis further finds that there is credible evidence to
indicate that another party had worked on the boiler after Mr.
Corderio’s [sic] service calls in mid-December 2015 and the arrival of
Mr. Heiert on January 6, 2016. The facts and evidence in this matter
are consistent with this party having installed the jumper on the
oil/gas toggle switch. The available information indicates that this
party would either be Mr. Corderio [sic], Mr. Goodson, or some other
party that was known to Mr. Goodson.
Depositional Testimony of Richard Kovarsky
{¶33} Kovarsky is a registered professional engineer and the owner of Pyro-
Technical Investigations, a forensic engineering firm. Kovarsky formed his opinion
based on the discovery conducted in the case.
{¶34} Kovarsky agreed that the jumper wire would have been “readily visible
or at least visible” when Heiert removed the oil/gas toggle switch from its mount. He
elaborated on the opinion in his affidavit that Heiert would have had no reason to
install the jumper wire and stated, “I have no idea as to why anyone would have
installed this particular jumper.” He did not know (1) why they would use a hard-
17 OHIO FIRST DISTRICT COURT OF APPEALS
wired jumper, and (2) why they “jumpered” the terminal that they did. Thus, he
conceded during his testimony that he also could not think of a reason why Cordeiro
would install the jumper, and that a lot of the reasoning he relied on for his opinion
that Heiert did not install the jumper wire would also apply to Cordeiro. He stated,
“As it relates to this particular issue, no, I’m not suggesting Mr. Cordeiro was the
person who installed the jumper.”
{¶35} Kovarsky opined that the inconsistencies in testimony “strongly
suggest” someone else did something with the boiler between the time that
Cincinnati Air was at Crossroads and when Blau arrived. However, he also admitted
the hard-wired jumper “wound up serving a purpose like” what Heiert allegedly told
Goodson he was going to do right before the explosion. Thus, he agreed that
Goodson’s testimony is “certainly consistent” with a jumper wire potentially being
installed by Heiert, but added, “It does not necessarily say that it was this jumper
that was installed.”
{¶36} Kovarsky admitted he has no evidence that Cincinnati Air installed the
jumper, and that there is no evidence “at this point” to directly say Goodson installed
the jumper wire.
Law and Analysis
Standard of Review
{¶37} We review the granting of summary judgment de novo. Grafton v.
Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Summary judgment
is appropriate when (1) there is no genuine issue of material fact, (2) the moving
party is entitled to judgment as a matter of law, and (3) the evidence, when viewed in
favor of the nonmoving party, permits only one reasonable conclusion and that
18 OHIO FIRST DISTRICT COURT OF APPEALS
conclusion is adverse to the nonmoving party. Evans v. Thrasher, 1st Dist. Hamilton
No. C-120783, 2013-Ohio-4776, ¶ 25.
{¶38} The initial burden is on the party moving for summary judgment to
demonstrate the absence of a genuine issue of material fact as to the essential
elements of the case. Dresher v. Burt, 75 Ohio St.3d 280, 292, 662 N.E.2d 264
(1996). If the moving party meets its initial burden, the burden shifts to the
nonmoving party to set forth specific facts to show there is a genuine issue of
material fact. Id.
First Assignment of Error
{¶39} In the first assignment of error, plaintiffs-appellants argue that the
trial court erred by granting summary judgment in favor of defendants-appellees.
{¶40} To establish actionable negligence, one must show (1) the existence of
a duty, (2) breach of that duty, and (3) an injury resulting proximately therefrom.
Ellis v. Time Warner Cable, 1st Dist. Hamilton No. C-120083, 2013-Ohio-240, ¶ 6,
quoting Menifee v. Ohio Welding Prod., Inc., 15 Ohio St.3d 75, 77, 472 N.E.2d 707
(1984). “If, in response to a properly supported [summary judgment] motion, the
plaintiff fails to meet its evidentiary burden of setting forth facts from which
reasonable minds could find all three elements, then the defendant is entitled to
summary judgment as a matter of law.” Williams v. 312 Walnut Ltd. Partnership,
1st Dist. Hamilton No. C-960368, 1996 WL 741982, *2 (Dec. 31, 1996).
{¶41} In this case, defendants-appellees moved for summary judgment,
alleging that plaintiffs failed to present any evidence to show that any defendant was
the cause of the explosion. Plaintiffs-appellants responded first by pointing to
inconsistencies between the testimony of Cordeiro and Goodson regarding the
actions taken by Cordeiro while at Crossroads. Next, plaintiff pointed to the fact that
19 OHIO FIRST DISTRICT COURT OF APPEALS
Cordeiro was working on the boiler alone most of the time, while Goodson was in the
room with Heiert the entire time. Lastly, they relied on the affidavit of their expert
Kovarsky to show a “likelihood” that Goodson, or someone under his direction,
“tampered” with the boiler between the time when Cincinnati Air was there and
when Blau arrived. Essentially, plaintiffs asserted that the evidence showed that
each defendant had the opportunity to install the jumper wire, and therefore, the
issue of who actually installed the jumper wire should be an issue left for the trier of
fact.
{¶42} However, “ ‘mere speculation or possibility is not enough to defeat a
summary judgment motion.’ ” Wynn v. Duke Energy Ohio, Inc., 1st Dist. Hamilton
No. C-130781, 2014-Ohio-3464, ¶ 15, citing Allstate Ins. Co. v. Sears Roebuck Co.,
7th Dist. Belmont No. 06 BE 10, 2007-Ohio-4977, ¶ 74. “[T]here must be direct
proof of a fact from which [an] inference can reasonably be drawn.” Parras v.
Standard Oil Co., 160 Ohio St. 315, 319, 116 N.E.2d 300 (1953).
{¶43} Here, plaintiffs-appellants failed to point to any fact in the record from
which a reasonable inference can be drawn that any of the defendants actually
installed the jumper wire. Evidence of access and opportunity can only reasonably
establish that it is possible one of the defendants installed the jumper wire, and this
is insufficient to defeat a summary-judgment motion. Therefore, we overrule the
first assignment of error.
Second Assignment of Error
{¶44} In the second assignment of error, plaintiffs-appellants argue that the
trial court erred by failing to apply the doctrine of res ipsa loquitor to the boiler
20 OHIO FIRST DISTRICT COURT OF APPEALS
{¶45} Res ipsa loquitor is “a rule of evidence which permits the trier of fact to
infer negligence on the part of the defendant from the circumstances surrounding
the injury to plaintiff.” Hake v. George Wiedemann Brewing Co., 23 Ohio St.2d 65,
66, 262 N.E.2d 703 (1970). For the doctrine to apply, a plaintiff must show “(1)
[t]hat the instrumentality causing the injury was, at the time of the injury, or at the
time of the creation of the condition causing the injury, under the exclusive
management and control of the defendant; and (2) that the injury occurred under
such circumstances that in the ordinary course of events it would not have occurred
if ordinary care had been observed.” Id. at 66-67.
{¶46} The doctrine is not restricted solely to factual situations involving a
single defendant. Shields v. King, 40 Ohio App.2d 77, 81, 317 N.E.2d 922 (1st Dist.
1973), citing Bauer v. Pullman Co., 8 Ohio App.2d 1, 220 N.E.2d 366 (10th Dist.
1966), and Dearth v. Self, 8 Ohio App.2d 33, 35-36, 220 N.E.2d 728 (4th Dist.1966).
It may be applied to factual situations involving multiple defendants where the
defendants were acting in concert and were in collective and concurrent control of
the instrumentality which caused the injury. Id. It may also be applied in situations
where one defendant is vicariously liable for the other defendant. Dearth at 36.
However, the doctrine should not be applied to situations where: (1) multiple
defendants have been involved, because the wrongdoer could not be identified; (2)
where one of two defendants wholly independent of the other might be responsible
for the injury; or (3) where, under the facts, only one defendant might have been
negligent. Id. at 35.
{¶47} Thus, “as a general proposition, where there are multiple defendants,
any one of whom might have been at fault, it is ordinarily not proper to say that
anyone had exclusive knowledge as to how or why the accident occurred.” Id. at 36.
21 OHIO FIRST DISTRICT COURT OF APPEALS
Additionally, “if some other person or persons, other than the named defendants,
had even partial control of the [instrumentality], the inference permitted by res ipsa
loquitur would be improper.” Eannottie v. Carriage Inn of Steubenville, 155 Ohio
App.3d 57, 2003-Ohio-5310, 799 N.E.2d 189, ¶ 43 (7th Dist.).
{¶48} Here, there is no evidence to establish when the jumper wire was
installed and multiple parties, including the plaintiffs, may be at fault for installing
the jumper wire. Additionally, Heiert, the plaintiff, was in control of the boiler at the
time of the explosion. Thus, it cannot be shown that any defendant was in exclusive
management and control of the boiler at the time of the explosion or at the time
when the jumper wire was installed. There is also no evidence that the defendants
were acting concurrently or in concert. Therefore, the application of res ipsa loquitor
would be improper in this case. Accordingly, we overrule the second assignment of
error.
Conclusion
{¶49} Having overruled both assignments of error, we affirm the judgments
of the trial court.
Judgments affirmed.
BERGERON and BOCK, JJ., concur.
Please note:
The court has recorded its own entry this date.