United States District Court, S.D. Ohio, Western Division
MEMORANDUM OPINION AND ORDER
William O. Bertelsman United States District Judge
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.
Factual and Procedural Background
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).
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). BME controlled the area thereafter, and
BASF employees only entered when “invited by a BME
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. (Doc. 27-1, PageID# 168).
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).
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).
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.
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).
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.
McCarter was engaged in an inherently dangerous
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 ...