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Garcia v. Newark Builders Supply, Inc.

Court of Appeals of Ohio, Fifth District

September 25, 2013

EZEQUIEL CELAYA GARCIA, et al. Plaintiffs-Appellants
NEWARK BUILDERS SUPPLY, INC., dba NBS SYSTEMS, et al. Defendants-Appellees

Civil Appeal from the Court of Common Pleas, Case Nos. 2005 CV 01461, 2005 CV 01460

For Plaintiff-Appellant Garcia JAMES MALEK, DAVID A. HERD, ED MALEK.

For Defendant-Appellee Newark DOUG MALEK, JOHN NEMETH.

For Defendant-Appellee Jefferson RICHARD BROWN.

JUDGES: Hon. William B. Hoffman, P.J., Hon. John W. Wise, J., Hon. Patricia A. Delaney, J.


Wise, J.

(¶1} Plaintiff-Appellant Ezequiel Celaya Garcia appeals the judgment of the Licking County Court of Common Pleas granting the motion to dismiss filed by Defendant-Appellee, Newark Builders Supply, Inc.


(¶2} The facts, as set forth in the prior appeal in this case, are as follows:

(¶3} The Court first notes the majority of the testimony about the relevant activities that occurred on November 29-30, 2003, comes from Ezequiel Celaya Garcia, the sole survivor of the incident described below.

(¶4} Edgar Noe Romero ("Romero"), Luciana Balderas ("Balderas") and Ezequiel Celaya Garcia ("Garcia") were citizens of Mexico who together came to work in the United States. The three men came to Columbus, Ohio and found jobs in the construction field. Garcia and Romero worked as independent contractors in the roofing industry, while Balderas had performed drywall work.

(¶5} In the evening of Saturday, November 29, 2003, Romero dropped Garcia and Balderas off at the International Ballroom, a drinking establishment. While at the International Ballroom, Garcia and Balderas met Jorge Luis Quintero AKA Jesse Perez ("Perez"). The men began consuming alcohol; Perez and Garcia did some cocaine together. Balderas and Perez discussed their similar work with drywalling.

(¶6} At 2:00 a.m. on Sunday, November 30, 2003, the three men left the International Ballroom. Balderas called Romero from a cell phone and asked Romero to come and give Balderas and Garcia a ride home. Perez asked Romero to give him a ride to his truck parked at a residential construction site located at 186 Applewood Drive, Pataskala, Licking County, Ohio. Romero agreed to drive Perez to his truck. On route to the site, the men stopped at a gas station where Perez purchased a 12-pack of beer.

(¶7} The property located at 186 Applewood Drive, also known as Lot 24, is the site of a residence being constructed by Jefferson Homes, a building company. As part of the construction process, Jefferson Homes hired Newark Building Supply, Inc. ("NBS") as an independent contractor to complete the dry walling. In order to do some of the dry walling, the workers require electricity to use their tools. Donald J. Wilson, Jr. ("Wilson"), the supervisor for NBS, testified through deposition that a NBS employee dropped off a gasoline-powered generator at 186 Applewood Drive because electricity had not yet been connected to the work site. Wilson stated that the generator was to be placed in the house so that the generator could not be stolen, but he did not tell the workers exactly where in the house to place the generator.

(¶8} Wilson testified that NBS hired Perez as a subcontractor to sand the drywall at 186 Applewood Drive. Wilson assigned the job to Perez on November 28, 2003, and estimated that the sanding work would only take four to five hours to complete. Wilson stated that Perez told him that he would do the sanding on Saturday, November 29, 2003, and Wilson expected Perez to complete the sanding that afternoon. Wilson was to inspect the sanding on December 1, 2003. Wilson further stated that Perez would not require any electricity to complete the sanding aspect of the dry walling.

(¶9} Romero, Balderas, Garcia, and Perez arrived at 186 Applewood Drive between 3:30 a.m. and 4:00 a.m. on that Sunday morning. When they arrived at Perez's truck parked at the site, Perez invited the men into the house to see the work Perez had been doing on the house. Garcia testified that he did not go into the house to perform any work.

(¶10} Perez went to the back of the house and opened the front door for the other three men to come in. Garcia saw that Perez turned on a light in the house and also plugged in a kerosene heater on the main floor. Garcia testified that he heard the sound of a generator, but it sounded far from him.

(¶11} After Perez turned the light on in the house, Romero, Perez and Balderas began talking. Perez picked up a dry walling instrument and tried to polish a wall. Garcia saw Perez hand the tool to Romero and Romero began to use the tool. Perez also gave his phone number to Balderas.

(¶12} Garcia wanted to leave shortly after arriving at the house because he was tired and wanted to sleep. He asked his friends to leave, but they continued talking. At approximately 4:00 a.m., Garcia went to a different part of the house and went to sleep.

(ΒΆ13} Around 8:00 a.m. or 9:00 a.m. that same Sunday morning, Marco Bravo ("Bravo") testified during deposition that he arrived at the construction site to complete a dry walling job on Lot 25, the house next door to 186 Applewood Drive. Bravo required electricity to complete his dry walling task, but the house he was working on did not have electricity connected to it nor was there a generator on the premises. Bravo knew there was a generator at 186 Applewood Drive located in the basement. Bravo crawled through a basement window and found the running generator in the basement, chained to a pole. Bravo added more gasoline to the running generator. He unplugged a cord from the ...

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