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Farley v. Duke Construction

December 9, 2008

JOHN S. FARLEY ET AL., PLAINTIFFS-APPELLANTS,
v.
DUKE CONSTRUCTION ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Franklin County Court of Common Pleas. (C.P.C. No. 06CVC-04-5246).

The opinion of the court was delivered by: Bryant, J.

(REGULAR CALENDAR)

OPINION

{¶1} Plaintiffs-appellants, John S. Farley and Elizabeth A. Farley, appeal from a judgment of the Franklin County Court of Common Pleas granting summary judgment to defendants-appellees, Duke Construction and Tartan West Development Company (collectively, "Duke"), McDaniel's Construction Corporation, Inc. ("McDaniel's"), Shepherd Excavating, Crager Brothers Trucking ("Crager Brothers"), and Union County, Union County Commissioners, and Union County Sheriff's Office (collectively, "Union County"). Because plaintiffs failed to demonstrate the existence of a genuine issue of material fact reflecting liability on the part of any defendant, we affirm.

{¶2} Plaintiffs' complaint arises out of a one vehicle automobile accident on the morning of December 25, 2005. Plaintiffs, along with their son Steven, were proceeding southbound on Hyland-Croy Road in Union County, Ohio. After passing McKitrick Road, their vehicle slid off the road, striking a tree. While Elizabeth and Steven suffered minor injuries, John suffered a broken rib, a punctured lung and a spinal cord injury resulting in paraplegia.

{¶3} Adjacent to the accident site, Duke was developing a new residential neighborhood called Tartan Fields. Duke managed the construction site and employed McDaniel's to move topsoil in dump trucks from one area of the construction site to another. The work involved McDaniel's exiting the site through a temporary entrance, going out onto Hyland-Croy Road, and then re-entering through another temporary entrance.

{¶4} At the same time, Shepherd Excavating was digging the basement of a new house in the development for a homebuilder not a party to this lawsuit. Shepherd Excavating retained Crager Brothers to haul the dirt away. Duke gave Shepherd Excavating permission to add the dirt it excavated to that McDaniel's hauled and unloaded. As a result, Crager Brothers' trucks were also exiting out onto the roadway with truckloads of dirt before re-entering the work area. Because plaintiffs' accident occurred on Christmas and a Sunday, no one was working at the time of the accident.

{¶5} Plaintiffs commenced this action by filing a complaint on April 19, 2006 against Duke and McDaniel's, along with several other companies whose subsequent motions for summary judgment were not appealed after being granted. On July 24, 2006, plaintiffs filed their first amended complaint, adding Shepherd Excavating and Union County as additional defendants. Plaintiffs' second amended complaint was filed January 23, 2007, adding Crager Brothers as yet another defendant.

{¶6} Plaintiffs' initial complaint alleged (1) negligent construction of the temporary entrances that caused the diversion of water, mud and other debris onto the roadway, (2) negligence in depositing mud and debris on the roadway as a result of the construction work that created unreasonably dangerous conditions on the roadway, (3) negligent failure to thoroughly remove mud and debris off the roadway each day, and (4) negligent failure to warn motorists about the mud and debris on the roadway despite actual or constructive knowledge of the condition. Plaintiffs' first amended complaint alleged Union County had actual or constructive notice of a hazardous condition and/or a nuisance on the roadway and negligently failed to remove it or warn approaching motorists. Apart from adding Crager Brothers as a defendant, the second amended complaint did not include any new allegations.

{¶7} Following extensive discovery, defendants began filing motions for summary judgment. McDaniel's filed its motion on March 5, 2007, followed by Shepherd Excavating on April 20, 2007, and Duke on July 11, 2007; Crager Brothers and Union County filed separately on July 13, 2007. The trial court granted all of the motions, terminating the case with a judgment entry filed on March 6, 2008.

{¶8} Plaintiffs timely appeal, assigning five errors:

I. THE TRIAL COURT ERRED IN GRANTING DEFENDANT/APPELLEE DUKE CONSTRUCTION AND TARTAN WEST DEVELOPMENT'S MOTION FOR SUMMARY JUDGMENT AS THERE EXIST GENUINE ISSUES OF MATERIAL FACT FOR THE JURY TO CONSIDER.

II. THE TRIAL COURT ERRED IN GRANTING DEFENDANT/APPELLEE MCDANIEL'S CONSTRUCTION CORPORATION INC.'S MOTION FOR SUMMARY JUDGMENT AS THERE EXIST GENUINE ISSUES OF MATERIAL FACT FOR THE JURY TO CONSIDER.

III. THE TRIAL COURT ERRED IN GRANTING DEFENDANT/APPELLEE SHEPHERD EXCAVATING'S MOTION FOR SUMMARY JUDGMENT AS THERE EXIST GENUINE ISSUES OF MATERIAL FACT FOR THE JURY TO CONSIDER.

IV. THE TRIAL COURT ERRED IN GRANTING DEFENDANT/APPELLEE CRAGER BROTHERS TRUCKING'S MOTION FOR SUMMARY JUDGMENT AS THERE EXIST GENUINE ISSUES OF MATERIAL FACT FOR THE JURY TO CONSIDER.

V. THE TRIAL COURT ERRED IN GRANTING DEFENDANT/APPELLEE UNION COUNTY['S] MOTIONS FOR SUMMARY JUDGMENT AS THERE EXIST GENUINE ISSUES OF MATERIAL FACT FOR THE JURY TO CONSIDER.

{¶9} An appellate court's review of summary judgment is conducted under a de novo standard. Coventry Twp. v. Ecker (1995), 101 Ohio App.3d 38, 41; Koos v. Cent. Ohio Cellular, Inc. (1994), 94 Ohio App.3d 579, 588. Summary judgment is proper only when the parties moving for summary judgment demonstrate: (1) no genuine issue of material fact exists, (2) the moving parties are entitled to judgment as a matter of law, and (3) reasonable minds could come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence most strongly construed in its favor. Civ.R. 56; State ex rel. Grady v. State Emp. Relations Bd. (1997), 78 Ohio St. 3d 181.

{¶10} Pursuant to Civ.R. 56(C), the moving party bears the initial burden of informing the trial court of the basis for the motion and identifying those portions of the record demonstrating the absence of a material fact. Dresher v. Burt (1996), 75 Ohio St.3d 280, 293. The moving party, however, cannot discharge its initial burden under this rule with a conclusory assertion that the non-moving party has no evidence to prove its case; the moving party must specifically point to evidence of a type listed in Civ.R. 56(C), affirmatively demonstrating that the nonmoving party has no evidence to support the non-moving party's claims. Id.; Vahila v. Hall (1997), 77 Ohio St.3d 421. Once the moving party discharges its initial burden, summary judgment is appropriate if the nonmoving party does not respond, by affidavit or as otherwise provided in Civ.R. 56, with specific facts showing that a genuine issue exists for trial. Dresher at 293; Vahila at 430; Civ.R. 56(E). See, also, Castrataro v. Urban (Mar. 7, 2000), Franklin App. No. 99AP-219.

{ΒΆ11} Plaintiffs' assignments of error each share a common theme, arguing genuine issues of material fact concerning plaintiffs' claims against each defendant render summary judgment inappropriate. For ease of discussion, we address the fifth assignment of error first and combine the ...


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