[Cite as Pinkerton v. J&H Reinforcing, 2012-Ohio-1606.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY
CRAIG D. PINKERTON, et al, : : Plaintiffs-Appellants. : : Case Nos. 10CA3386 & v. : 10CA3388 : J&H REINFORCING AND : DECISION AND STRUCTURAL ERECTORS, INC., et al, : JUDGMENT ENTRY : Defendants-Appellees. : Filed: April 4, 2012 ________________________________________________________________
APPEARANCES:
Michael S. Miller and Craig P. Scott, Volkema Thomas Miller & Scott LPA, Columbus, Ohio, for Appellants, Craig D. Pinkerton and Melissa McCrary Pinkerton.
Mike Dewine, Ohio Attorney General; Andrew D. Sonnek and Greg A. Goldblatt, Sonnek & Howard, Ltd., Cincinnati, Ohio for Appellant, Ohio Bureau of Workers’ Compensation.1
David G. Jennings and J. Stephen Teetor, Isaac, Brant, Ledman & Teetor, LLP, Columbus, Ohio, for Appellee, J&H Reinforcing and Structural Erectors, Inc.
William B. Benson and Mark C. Melko, Wiles, Boyle, Burkholder & Bringardner Co., L.P.A., Columbus, Ohio, for Appellee, BBL-Carlton, LLC. ________________________________________________________________
Kline, J.:
{¶1} Craig D. Pinkerton, Melissa McCrary Pinkerton, and the Ohio Bureau of
Workers’ Compensation (hereinafter the “Workers’ Compensation Bureau”) appeal the
judgment of the Scioto County Court of Common Pleas. The appellants claim that the
negligence of J&H Reinforcing and Structural Erectors, Inc. (hereinafter “J&H
Reinforcing”), and BBL-Carlton, LLC (hereinafter “BBL-Carlton”), contributed to injuries
1 Richard Cordray was the Ohio Attorney General when this appeal was filed. Scioto App. Nos. 10CA3386 & 10CA3388 2
that Craig Pinkerton suffered on a construction jobsite. The trial court, however,
granted summary judgment to both J&H Reinforcing and BBL-Carlton.
{¶2} On appeal, the appellants contend that the trial court should not have granted
summary judgment to either of the appellees. We disagree. As a matter of law, neither
J&H Reinforcing nor BBL-Carlton owed a duty of care to Craig Pinkerton. Furthermore,
we find the following: (1) there are no genuine issues of material fact; (2) both J&H
Reinforcing and BBL-Carlton are entitled to judgment as a matter of law on all of the
appellants’ claims; and (3) reasonable minds can come to just one conclusion as to all
of the appellants’ claims, and that conclusion is adverse to the appellants. Accordingly,
we affirm the judgment of the trial court.
I.
{¶3} On June 17, 2007, Craig Pinkerton was injured while working on a
construction site at an elementary school. Craig Pinkerton worked for Dixon Electrical,
which was the prime electrical contractor on the project. J&H Reinforcing was the prime
contractor for general trades, and BBL-Carlton was the construction manager.
{¶4} During the construction project, the various contractors stored equipment in
the mechanical room. To make room for the equipment, somebody removed the double
doors and the mullion from the mechanical room’s doorway. A “mullion” is “a slender
vertical usually nonstructural bar or pier forming a division between * * * doors[.]”
Webster’s Third New International Dictionary, Unabridged (2002). However, after the
doors and the mullion were removed, the “mullion clip” was left exposed in the floor.
This particular mullion clip was a metal bracket, approximately one-to-two inches wide,
and approximately a half-inch high. Scioto App. Nos. 10CA3386 & 10CA3388 3
{¶5} On the day of the accident, Craig Pinkerton walked through the equipment
room doorway and allegedly tripped over the exposed mullion clip. As a result, his
Achilles tendon was severed.
{¶6} Because of his injuries, Craig Pinkerton applied for and received
compensation and medical benefits from the Workers’ Compensation Bureau.
{¶7} On October 23, 2008, Craig and Melissa Pinkerton filed a complaint against
J&H Reinforcing, BBL-Carlton, and various unnamed defendants. The complaint
alleged that, because of the exposed mullion clip, the defendants “negligently created
and/or maintained a dangerous condition[.]” Additionally, Melissa Pinkerton claimed
loss of consortium, and, in later filings, the Workers’ Compensation Bureau asserted
subrogation rights. That is, the Workers’ Compensation Bureau claimed that it was
“entitled to recover [the compensation and medical benefits] paid to or on behalf” of the
Pinkertons. Complaint of New Party Plaintiff Ohio Bureau of Workers’ Compensation.
{¶8} Despite extensive discovery, it could not be determined who, exactly, had
removed the doors and the mullion. Several witnesses testified that employees of J&H
Reinforcing would have been responsible because J&H Reinforcing was the
independent contractor in charge of doorframes. According to these witnesses, union
rules would have prevented the employees of any other independent contractor from
removing the doors and the mullion. But an employee of BBL-Carlton testified (1) that
J&H Reinforcing was not contractually responsible for removing the doors and the
mullion and (2) that anybody could have done it. Significantly, there was no evidence
that either J&H Reinforcing or BBL-Carlton had directed the activities of Dixon Electrical
or Craig Pinkerton. Furthermore, there was no evidence that either J&H Reinforcing or Scioto App. Nos. 10CA3386 & 10CA3388 4
BBL-Carlton had given permission for the critical acts that led to Craig Pinkerton’s
injuries.
{¶9} Eventually, in two separate entries, the trial court granted summary judgment
to both J&H Reinforcing and BBL-Carlton. The trial court found, in part, that neither
J&H Reinforcing nor BBL-Carlton had actively participated in the work of Dixon
Electrical or Craig Pinkerton. As a result, the trial court dismissed the complaint of the
plaintiffs and the complaint of the Ohio Bureau of Workers’ Compensation. Four days
later, the trial court filed the same two entries but added Civ.R. 54(B) language (“no just
cause for delay”).
{¶10} Craig D. Pinkerton, Melissa McCrary Pinkerton, and the Workers’
Compensation Bureau appeal and assert the following three assignments of error: I.
“THE TRIAL COURT ERRED TO THE SUBSTANTIAL PREJUDICE OF PLAINTIFFS-
APPELLANTS IN GRANTING SUMMARY JUDGMENT TO THE DEFENDANT-
APPELLEE J&H REINFORCING AND STRUCTURAL ERECTORS, INC.” II. “THE
TRIAL COURT ERRED TO THE SUBSTANTIAL PREJUDICE OF PLAINTIFFS-
APPELLEE BBL-CARLTON, L.L.C.” And, III. “THE TRIAL COURT ERRED TO THE
SUBSTANTIAL PREJUDICE OF PLAINTIFFS-APPELLANTS IN FAILING TO GIVE
ANY WEIGHT TO THE DEPOSITION AND AFFIDAVIT TESTIMONY OF RYAN
STEWART.”
{¶11} The Pinkertons asserted these assignments of error in their appellate brief.
And “[i]n the interest of brevity and [for] the convenience of the Court,” the Workers’
Compensation Bureau adopted the Pinkertons’ assignments of error and issues Scioto App. Nos. 10CA3386 & 10CA3388 5
presented for review. Brief of Appellant Ohio Bureau of Workers’ Compensation at 4.
Therefore, when referring to the appellants collectively, we will use the term
“Pinkertons.”
II.
{¶12} Before addressing the Pinkertons’ first-and-second assignments of error, we
must note a procedural deficiency. That is, in their appellate brief, the Pinkertons have
failed to separately argue their first-and-second assignments of error as required by
App.R. 16(A)(7). Instead, the Pinkertons have presented just one argument in support
of both assignments of error. Under App.R. 12(A)(2), we may choose to disregard any
assignment of error that an appellant fails to separately argue. Therefore, we could
exercise our discretionary authority to summarily overrule the Pinkertons’ first-and-
second assignments of error. See Newman v. Enriquez, 171 Ohio App.3d 117, 2007-
Ohio-1934, at ¶18; Mtge. Electronic Registrations Sys. v. Mullins, 161 Ohio App.3d 12,
2005-Ohio-2303, at ¶22, citing Park v. Ambrose (1993), 85 Ohio App.3d 179, 186; State
v. Caldwell (1992), 79 Ohio App.3d 667, 677, fn. 3. In the interest of justice, however,
we choose to address the Pinkertons’ first-and-second assignments of error.
III.
{¶13} In their first-and-second assignments of error, the Pinkertons contend that the
trial court should not have granted the appellees’ respective motions for summary
judgment. “Because this case was decided upon summary judgment, we review this
matter de novo, governed by the standard set forth in Civ.R. 56.” Comer v. Risko, 106
Ohio St.3d 185, 2005-Ohio-4559, at ¶8. Summary judgment is appropriate only when
the following have been established: (1) there is no genuine issue as to any material Scioto App. Nos. 10CA3386 & 10CA3388 6
fact, (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable
minds can come to only one conclusion, and that conclusion is adverse to the
nonmoving party. Civ.R. 56(C). See, also, Bostic v. Connor (1988), 37 Ohio St.3d 144,
146; Grimes v. Grimes, Washington App. No. 08CA35, 2009-Ohio-3126, at ¶14. In
ruling on a motion for summary judgment, the court must construe the record and all
inferences that arise from it in the opposing party’s favor. Doe v. First United Methodist
Church, 68 Ohio St.3d 531, 535, 1994-Ohio-531, superseded by statute on other
grounds.
{¶14} The burden of showing that no genuine issue of material fact exists falls upon
the party who moves for summary judgment. Dresher v. Burt, 75 Ohio St.3d 280, 294,
1996-Ohio-107. However, once the movant supports his or her 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 [Civ.R. 56], must set forth specific facts showing that there is a genuine
issue for trial.” Civ.R. 56(E). See, also, Dresher at 294-295; Grimes at ¶15.
{¶15} “In reviewing whether an entry of summary judgment is appropriate, an
appellate court must independently review the record and the inferences that can be
drawn from it to determine if the opposing party can possibly prevail.” Grimes at ¶16
(citation omitted). “Accordingly, we afford no deference to the trial court’s decision in
answering that legal question.” Morehead v. Conley (1991), 75 Ohio App.3d 409, 412.
See, also, Schwartz v. Bank One, Portsmouth, N.A. (1992), 84 Ohio App.3d 806, 809;
Grimes at ¶16.
IV. Scioto App. Nos. 10CA3386 & 10CA3388 7
{¶16} For ease of analysis, we will review the Pinkertons’ second assignment of
error out of order. In their second assignment of error, the Pinkertons contend that the
trial court should not have granted BBL-Carlton’s motion for summary judgment.
Essentially, the Pinkertons contend that there are genuine issues of material fact as to
whether BBL-Carlton’s negligence contributed to Craig Pinkerton’s injuries.
{¶17} “It is well-settled that in a negligence suit between private parties, the plaintiff
must prove (1) the existence of a legal duty, (2) the defendant’s breach of that duty,
and, (3) that the breach was the proximate cause of harm and damages.” Scott v.
Marckel, Defiance App. No. 4-07-27, 2008-Ohio-2743, at ¶19, citing Nationwide Mut.
Ins. Co. v. Am. Heritage Homes Corp., 167 Ohio App.3d 99, 2006-Ohio-2789, at ¶12.
“In tort law, whether a defendant owes a duty to a plaintiff depends upon the
relationship between them.” Huston v. Konieczny (1990), 52 Ohio St.3d 214, 217.
Furthermore, “[t]he existence of a duty in a negligence action is a question of law for the
court to determine.” Mussivand v. David (1989), 45 Ohio St.3d 314, 318. Here, BBL-
Carlton argues that it did not owe a duty of care to Craig Pinkerton. And because there
is no evidence that BBL-Carlton actively participated in Dixon Electrical’s job operations,
we agree.
{¶18} 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.” Wellman v. E. Ohio Gas Co. (1953), 160 Ohio St. 103,
at paragraph one of the syllabus. “In other words, when an employee of a Scioto App. Nos. 10CA3386 & 10CA3388 8
subcontractor is injured while performing work for his or her employer that is inherently
dangerous, the owner and/or general contractor owes no duty of care to that employee.”
Wyczalek v. Rowe Constr. Serv. Co., 148 Ohio App.3d 328, 2001-Ohio-3104, at ¶21,
citing Sopkovich v. Ohio Edison Co., 81 Ohio St.3d 628, 636-37, 1998-Ohio-341. Here,
Dixon Electrical was an independent subcontractor, and BBL-Carlton was the
construction manager. Under Wellman, a construction manager is akin to a general
contractor. See Wyczalek at ¶22. Furthermore, Ohio courts have long recognized that
construction work is inherently dangerous. See Bond v. Howard Corp., 72 Ohio St.3d
332, 336, 1995-Ohio-81 (“A construction site is inherently a dangerous setting.”)
(citation omitted); Lillie v. Meachem, Allen App. No. 1-09-09, 2009-Ohio-4934, at ¶26;
Anderson v. Snider Cannata Co., Cuyahoga App. No. 91801, 2009-Ohio-4363, at ¶23.
Therefore, we find that the general rule in Wellman applies to the present case.
{¶19} Despite the general rule in Wellman, BBL-Carlton would have owed a duty of
care to Carl Pinkerton if BBL-Carlton had actively participated in Dixon Electrical’s job
operations. The active-participation “exception occurs when the * * * construction
manager[] actively participates in the subcontractor’s job operations by either directing
or exercising ‘control over the work activities of the independent contractor’s
employees[.]’” Wyczalek at ¶22, quoting Sopkovich at 642-43. A “construction
manager, who has less involvement with the field operations on a day-to-day basis,
does not rise to the level of active participation when it merely exercises a general
supervisory role over a project.” Wyczalek at ¶23, citing Bond at syllabus. Rather, the
“construction manager must have directed the activity that resulted in the injury and/or
given permission for the critical acts that led to the employee’s injury.” Id. Scioto App. Nos. 10CA3386 & 10CA3388 9
{¶20} Here, there is no evidence that BBL-Carlton actively participated in Dixon
Electrical’s job operations. In fact, the Pinkertons do not even allege active participation
on behalf of BBL-Carlton. Therefore, as a matter of law, BBL-Carlton did not owe a duty
of care to Craig Pinkerton.2 And without a duty of care, there can be no negligence.
See Jeffers v. Olexo (1989), 43 Ohio St.3d 140, 142.
{¶21} Accordingly, BBL-Carlton is entitled to judgment as a matter of law, and we
overrule the Pinkertons’ second assignment of error.
V.
{¶22} In their first assignment of error, the Pinkertons contend that the trial court
should not have granted J&H Reinforcing’s motion for summary judgment. Essentially,
the Pinkertons contend that there are genuine issues of material fact as to whether J&H
Reinforcing’s negligence contributed to Craig Pinkerton’s injuries.
A. Duty of Ordinary Care or Active Participation?
{¶23} Like BBL-Carlton, J&H Reinforcing contends that it did not owe a duty of care
to Craig Pinkerton. As we noted earlier, the existence of a duty depends upon the
relationship between the particular parties. See Huston at 217. And significantly, J&H
Reinforcing was not an owner, general contractor, or construction manager. Instead,
2 In relation to either J&H Reinforcing or BBL-Carlton, the Pinkertons cannot establish a duty of care under the frequenter statute. “R.C. 4101.11 requires every employer to furnish a place of employment that is safe for its employees and for frequenters of the place of employment. However, ‘[t]he duty to frequenters of places of employment, set forth in R.C. 4101.11, does not extend to hazards which are inherently and necessarily present because of the nature of the work performed, where the frequenter is the employee of an independent contractor.’ Eicher v. United States Steel Corp. (1987), 32 Ohio St.3d 248[,] syllabus. Instead, the primary responsibility for protecting such an employee lies with his employer. Id., at 250[.]” Kratzer v. Gen. Motors Corp. (Feb. 27, 1998), Montgomery App. Nos. 16590, 16593, and 16594. Scioto App. Nos. 10CA3386 & 10CA3388 10
J&H Reinforcing and Dixon Electrical were both independent subcontractors on the
same construction project.
{¶24} The Supreme Court of Ohio discussed the duty that one independent
subcontractor owes to a second independent subcontractor in Kucharski v. Natl.
Engineering Contracting Co., 69 Ohio St.3d 430, 1994-Ohio-320. As the court held, “An
independent contractor who lacks a contractual relationship with a second independent
contractor owes no affirmative duty beyond that of ordinary care to the employees of the
second contractor, where the first contractor does not supervise or actively participate in
the second contractor’s work.” Kucharski at syllabus. The Kucharski syllabus does not,
however, mention the duty of care that one independent subcontractor owes to a
second independent subcontractor in an inherently dangerous work environment.
Regardless, the Pinkertons rely on Kucharski and argue that J&H Reinforcing owed
Craig Pinkerton a duty of ordinary care, regardless of either (1) the inherent danger of
the construction site or (2) J&H Reinforcing’s level of participation with Dixon Electrical.
But J&H Reinforcing argues that it did not owe a duty of care to Craig Pinkerton
because (1) the construction site was inherently dangerous and (2) J&H Reinforcing did
not actively participate in Dixon Electrical’s job operations.
{¶25} Because the construction site was inherently dangerous, we believe that J&H
Reinforcing’s active participation was necessary to establish a duty of care to Craig
Pinkerton. Here, we agree with the Seventh Appellate District’s reasoning in Solanki v.
Doug Freshwater Contracting, Inc., Jefferson App. No. 06-JE-39, 2007-Ohio-6703. In
Solanki, the court held that “unrelated parties hired to work on the same premises” do
not owe each other a duty of care when (1) there is no active participation and (2) the Scioto App. Nos. 10CA3386 & 10CA3388 11
work is inherently dangerous. Id. at ¶39-44. As the court explained, “The rationale
behind the ‘inherently dangerous’ cases is that if a property owner or general contractor
hires an independent contractor or subcontractor to perform certain work, the property
owner or general contractor may assume a duty to the worker to keep the work
premises safe. However, if the property owner or general contractor hires the
independent contractor or subcontractor to perform inherently dangerous work, then
that duty is eliminated because of the intrinsic risk in the work, of which the independent
contractor or subcontractor is aware and should guard against. This reasoning applies
to the fact pattern at hand. While the [appellee] did not owe [the appellant] a duty by
way of hiring him to perform a job, as stated above, they did owe him a duty in
performing their work to use ‘ordinary and reasonable care’ so as to not cause him
injuries. If, however, [the appellant] was performing work that was inherently dangerous
when he was injured, then the [appellee] did not owe him a duty because he should
have been aware of the dangers of his work and protected himself against them.” Id. at
¶44.
{¶26} We find the reasoning in Solanki persuasive and apply it to the present case.
Otherwise, J&H Reinforcing would have owed Craig Pinkerton a greater duty of care
than an owner, general contractor, or construction manager would have. The Supreme
Court of Ohio has held that “[a] general contractor who has not actively participated in
the subcontractor’s work, does not, merely by virtue of its supervisory capacity, owe a
duty of care to employees of the subcontractor who are injured while engaged in
inherently dangerous work.” Cafferkey v. Turner Constr. Co. (1986), 21 Ohio St.3d 110,
syllabus. Thus, absent active participation, a general contractor has no duty of care to Scioto App. Nos. 10CA3386 & 10CA3388 12
an independent subcontractor in an inherently dangerous situation. This is true even if
the general contractor has supervised the independent subcontractor’s work.
{¶27} Here, J&H Reinforcing did not supervise the work of Dixon Electrical or Craig
Pinkerton. Instead, J&H Reinforcing and Dixon Electrical were both independent
subcontractors on the same inherently dangerous worksite. And we do not believe that,
absent active participation, J&H Reinforcing should have owed some duty to Craig
Pinkerton while the general contractor would have owed him no duty whatsoever.
Because of its supervisory capacity, the general contractor would have had more
control over Craig Pinkerton’s work than J&H Reinforcing had. Thus, we will not apply a
heightened duty of care to an entity that had less actual influence over Craig Pinkerton’s
work environment.
{¶28} Finally, Kucharski expressly “approved and followed” the holding in Cafferkey.
See Kucharski at syllabus. Therefore, it is logical to assume that Cafferkey’s no-duty-
without-active-participation rule would extend to fellow independent subcontractors
under Kucharski.
{¶29} Accordingly, to establish that J&H Reinforcing owed a duty to Craig Pinkerton,
the Pinkertons must show that J&H Reinforcing actively participated in Dixon Electrical’s
job operations.
B. What Does Active Participation Mean?
{¶30} When discussing the relationship between two independent subcontractors, it
is not entirely clear what “active participation” means. The Supreme Court of Ohio
announced the duty of care between independent subcontractors in Kucharski. See
Kucharski at syllabus. But in Kucharski, the court did not describe what it means for Scioto App. Nos. 10CA3386 & 10CA3388 13
one independent subcontractor to actively participate in the work of another
independent subcontractor.
{¶31} After Kucharski, the Supreme Court explained the meaning of active
participation in Bond. But the syllabus in Bond expressly relates to the duty that general
contractors owe to independent contractors. As the court held, “For purposes of
establishing liability to the injured employee of an independent subcontractor, ‘actively
participated’ means that the general contractor directed the activity which resulted in the
injury and/or gave or denied permission for the critical acts that led to the employee’s
injury, rather than merely exercising a general supervisory role over the project.” Bond
at syllabus (emphasis added).
{¶32} In Sopkovich, the Supreme Court of Ohio again elaborated on active
participation. The court held that “active participation giving rise to a duty of care may
be found to exist where a property owner either directs or exercises control over the
work activities of the independent contractor’s employees, or where the owner retains or
exercises control over a critical variable in the workplace.” Sopkovich at 643 (emphasis
added). Therefore, the holding in Sopkovich relates only to property owners.
{¶33} Because the Supreme Court of Ohio did not mention Kucharski in either Bond
or Sopkovich, the court has yet to define what specifically constitutes active participation
between independent subcontractors. Nevertheless, the Seventh District Court of
Appeals applied Bond’s definition of active participation to this type of relationship. See
Solanki at ¶¶30-32, 42. See, also, Kratzer; but, see, Nibert v. Columbus/Worthington
Heating & Air Conditioning, Fayette App. No. CA2009-08-015, 2010-Ohio-1288, at ¶22
(“Applying the ‘active participation’ definition as stated in Bond or Sopkovich is often Scioto App. Nos. 10CA3386 & 10CA3388 14
unworkable in situations involving multiple subcontractors since the roles among
subcontractors are typically not supervisory in nature. Subcontractors are usually
employed to perform separate tasks, but, as here, these tasks often overlap in some
manner or involve the same workspace although no supervisory relationship exists.”).
{¶34} Like the Seventh Appellate District, we also choose to follow Bond’s definition
of active participation. As we noted, Kucharski establishes the duty that one
independent subcontractor owes to another independent subcontractor. And
significantly, both Bond and Kucharski apply and follow the same case: Cafferkey. See
Bond at syllabus; Kucharski at syllabus. Therefore, because both Bond and Kucharski
follow Cafferkey, we believe (1) that Bond and Kucharski are somewhat analogous and
(2) that it is appropriate to apply Bond’s definition of active participation to the syllabus
in Kucharski. Thus, in the present case, we will apply the following definition of active
participation: For purposes of establishing liability to the injured employee of an
independent subcontractor, ‘actively participated’ means that a fellow 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. See Bond at syllabus.
{¶35} The Pinkertons rely on Sopkovich and argue that J&H Reinforcing
demonstrated active participation by “exercis[ing] actual control over the injury causing
variable in the workplace[.]” Brief of Plaintiffs-Appellants at 27. That is, the Pinkertons
contend that J&H Reinforcing exercised control over the mechanical room’s doorframe.
In our view, however, the holding in Sopkovich does not affect the duty that one
independent contractor owes to another independent contractor. “Although the
Sopkovich court did address active participation, it limited it strictly to the owner of the Scioto App. Nos. 10CA3386 & 10CA3388 15
property, Ohio Edison, and its exclusive control and communication over deactivation of
electrical lines.” Rockett v. Newark Builders Supply, Inc., 169 Ohio App.3d 379, 2006-
Ohio-5715, at ¶21. In fact, throughout Sopkovich, the Supreme Court of Ohio expressly
limited its holding to property owners. And unlike Bond and Kucharski, the court did not
base Sopkovich on the holding in Cafferkey. See Sopkovich at 642-43 (“As is clear
from Hirschbach, and from cases preceding and postdating Hirschbach * * *, a property
owner’s retention of possession and control over the work area of an independent
contractor’s employees has always been an integral part of the active-participation
analysis, where, as here, the owner’s liability is at issue.”). Accordingly, the Pinkertons
cannot show active participation by claiming that J&H Reinforcing exercised control over
the injury causing variable; i.e., the doorway.
{¶36} Applying our definition of active participation, there is no evidence that J&H
Reinforcing directed any of Dixon Electrical’s activities. Furthermore, there is no
evidence that J&H Reinforcing gave or denied permission for the critical acts that led to
Craig Pinkerton’s injury. Therefore, as a matter of law, J&H Reinforcing did not actively
participate in Dixon Electrical’s job operations. And as a result, J&H Reinforcing did not
owe a duty of care to Craig Pinkerton. Without a duty of care, there can be no
negligence. See Jeffers at 142.
C.
{¶37} Accordingly, J&H Reinforcing is entitled to judgment as a matter of law, and
we overrule the Pinkertons’ first assignment of error.
VI. Scioto App. Nos. 10CA3386 & 10CA3388 16
{¶38} In their third assignment of error, the Pinkertons contend that the trial court
should have given more weight to the testimony of a particular witness. However,
based on our resolution of the first two assignments of error, we find the Pinkerton’s
third assignment of error to be moot. The witness in question did not testify that any of
the defendants had directed the activities of Dixon Electrical or Craig Pinkerton.
Furthermore, this particular witness did not testify that any of the defendants had given
or denied permission for the critical acts that led to Craig Pinkerton’s injury. Instead, the
witness testified that, in his opinion, employees of J&H Reinforcing had removed the
doors and the mullion. Because neither BBL-Carlton nor J&H Reinforcing owed a duty
of care to Craig Pinkerton, this testimony is immaterial. Accordingly, we decline to
address the Pinkertons’ third assignment of error. See App.R. 12(A)(1)(c).
VII.
{¶39} After construing the record and all inferences therefrom in the Pinkertons’
favor, we find the following: (1) there are no genuine issues of material fact; (2) both
J&H Reinforcing and BBL-Carlton are entitled to judgment as a matter of law on all of
the Pinkertons’ claims; and (3) reasonable minds can come to just one conclusion as to
all of the appellants’ claims, and that conclusion is adverse to the Pinkertons.
Accordingly, we affirm the judgment of the trial court.
JUDGMENT AFFIRMED. Scioto App. Nos. 10CA3386 & 10CA3388 17
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED. Appellants shall pay the costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Scioto County Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.
Harsha, J.: Concurs in Judgment and Opinion as to Assignment of Error No. II. Dissents as to Assignments of Error No. I and III. Abele, P.J.: Concurs in Judgment Only.
For the Court
BY:_____________________________ Roger L. Kline, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.