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McCarter v. BASF Corp.

United States District Court, S.D. Ohio, Western Division

April 3, 2017

SONNY McCARTER SUSIE McCARTER, PLAINTIFFS
v.
BASF CORPORATION, DEFENDANT

          MEMORANDUM OPINION AND ORDER

          William O. Bertelsman United States District Judge

         This a personal injury case removed to this Court from the Hamilton County Court of Common Pleas. (Doc. 1). Following discovery, Defendant moved for summary judgment. (Doc. 27). The Court held oral argument on the motion on March 29, 2017, and now issues this Memorandum Opinion and Order.

         I. Factual and Procedural Background

         This case involves an improbable chain reaction, ending in a personal injury to Sonny McCarter, one of the Plaintiffs. In the summer of 2013, McCarter was in approximately his thirtieth year as a field supervisor for Benner, Mechanical & Engineering (BME), a company that specializes in servicing large cooling towers. (Doc. 27-2, PageID# 179; Doc. 29-2, PageID# 379; Doc. 34, PageID# 454). In July 2013, BASF shut down part of its Cincinnati facility and hired BME to perform an annual disassembly and reassembly on its cooling tower fan. (Doc. 27, PageID# 143).

         BASF closed the cooling tower, de-energized the motor, and placed a lock on that part of its facility, assuring that BME controlled access to the area. (Doc. 27-2, PageID# 180).[1] BME controlled the area thereafter, and BASF employees only entered when “invited by a BME employee.” (Id.).

         At approximately 2:15 p.m. on August 13, 2014, McCarter was standing on the roof of the cooling tower-approximately eight stories high-watching a crane remove the old fan. (Doc. 27-4, PageID# 192-93). He noticed that the guardrail next to him was loose, and alerted his fellow BME employees on the roof. (Doc. 34-1, PageID# 465). A BASF employee was also on the roof, too, and McCarter called him over to show him the loose rail. (Doc. 27-4, PageID# 211). To display the problem, McCarter hit the guardrail and caused it to shake.[2] (Doc. 27-1, PageID# 168).

         The vibration set off a highly unlikely chain reaction. A series of light poles were attached to the guard rail. (Doc. 29-5, PageID# 434). These outdoor lights were approximately 21 years old. (Doc. 29-2, PageID# 398). The vibration from the guardrail shook the light pole directly in front of McCarter. (Doc. 27-4, PageID# 193). The connection point between the light fixture and the light pole was already rusted, and it cracked because of the vibration. (Doc. 27-1, PageID# 160). The light fell onto McCarter's head, which was protected by a hard hat. (Doc. 27-6, PageID# 333). McCarter fell down for a moment, and then got back up. (Id.). McCarter initially refused medical treatment, but did report lightheadedness and soreness in his neck. (Doc. 27-4, PageID# 216; Doc. 29-3, PageID# 422).

         This was the first time any light fixture had broken in such a way at BASF. (Doc. 27-1, PageID# 159). BASF had conducted a visual check on the area, but only for dead bulbs or issues that could be observed by standing next to the fixture. (Id.; Doc. 29-2, PageID# 417, 419-20). To discover the weakened connection between the pole and the light fixture, BASF would have had to deconstruct the attachment. (Doc. 27-1, PageID# 160).

         II. Analysis

         This is a basic negligence case under Ohio law. “In general, a cause of action for negligence requires proof of (1) a duty requiring the defendant to conform to a certain standard of conduct, (2) breach of that duty, (3) a causal connection between the breach and injury, and (4) damages.” Cromer v. Children's Hosp. Med. Ctr. of Akron, 29 N.E.3d 921, 928 (Ohio 2015). To win this case at trial, Plaintiffs must prove all four of those elements. Conversely, if Defendant can show at this summary judgment stage that Plaintiffs cannot prove any one element, then Defendant is entitled to summary judgment.

         BASF argues it owed no duty to McCarter because McCarter was an independent contractor performing an inherently dangerous activity. “The existence of a duty in a negligence action is a question of law for the court to determine.” Mussivand v. David, 544 N.E.2d 265, 270 (Ohio 1989). Under Ohio law, if an independent contractor engages in an inherently dangerous activity, the company that hired the independent contractor does not owe him a duty unless the company actively participated in the independent contractor's work or retained control over a critical variable of the workplace. Whitelock v. Gilbane Bldg. Co., 613 N.E.2d 1032, 1034 (Ohio 1993)(citing Hirschbach v. Cincinnati Gas & Elec. Co., 452 N.E.2d 326, 328 (Ohio 1983)); see also Pinkerton v. J & H Reinforcing, 2012-Ohio-1606, ¶ 18; Sopkovich v. Ohio Edison Co., 693 N.E.2d 233, 244 (Ohio 1998); Maddox v. Ford Motor Co., 86 F.3d 1156 at *2 (6th Cir. 1996).[3]

         Thus, this Court must determine whether there is a material issue of fact regarding whether (1) McCarter was performing an inherently dangerous activity, and (2) BASF actively participated in McCarter's activities or retained control over a critical variable of the workplace.

         1. McCarter was engaged in an inherently dangerous activity.

         Under Ohio law, “[a] construction site is inherently a dangerous setting.” Bond v. Howard Corp., 650 N.E.2d 416, 420 (Ohio 1995); see also Frost v. Dayton Power and Light Co.,740 N.E.2d 734, 744 (Ohio Ct. App. 4th Dist. 2000), amended, 98 CA 669, 2000 WL 1029141 (Ohio Ct. App. 4th Dist. July 25, 2000); Cefaratti v. Mason Structural Steel Co.,694 N.E.2d 915, 916 (Ohio 1998)(Lundberg Stratton, J, dissenting); Whitelock, 613 N.E.2d at 1036 (Pfeifer, J., dissenting). Since McCarter was removing a ...


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