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Thomas v. PSC Metals, Inc.

Court of Appeals of Ohio, Eighth District, Cuyahoga

April 26, 2018


          Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-16-864142

          ATTORNEYS FOR APPELLANTS John P. O'Neil Ryan M. Harrell.

          ATTORNEYS FOR APPELLEES Matthew C. O'Connell James M. Popson David J. Hearty Sutter O'Connell Co.

          BEFORE: Boyle, P.J., Blackmon, J., and Laster Mays, J.



         {¶1} Plaintiffs-appellants, Anthony Thomas and Michelle Beverly, appeal the trial court's grant of summary judgment to defendants-appellees, PSC Metals, Inc. and its wholly owned subsidiary, PSC Metals-CAW, L.L.C. (hereinafter collectively referred to as "PSC"). In their sole assignment of error, appellants argue that the trial court's grant of summary judgment as to their negligence claim was in error because genuine issues of material facts exist and, thus, the trial court could not grant summary judgment as a matter of law. Finding no merit to their assignment of error, we affirm.

         I. Procedural History and Factual Background

         {¶2} PSC is an automobile recycling and scrap metal business with numerous locations throughout Ohio. Thomas began working for PSC after being hired through Callos Resource, L.L.C., a temporary staffing agency.

         {¶3} Callos locates, hires, and refers temporary workers to potential employers. Those employers are Callos' customers and work in a number of different industries and positions. To find individuals qualified for their customers' particular industries, Callos' staff coordinators review an employee's work history, education, and training and interview each employee to determine their qualifications and appropriate placement. If hired by Callos, the workers may become payroll employees, meaning that Callos is responsible for issuing those workers' paychecks. Because they are hired by Callos, the temporary workers are considered to be employees of Callos for a designated period of time depending on the customer-employer, and when that time elapses, the employee becomes an employee of that customer-employer.

         {¶4} In 2014, PSC became a Callos customer. Under the temporary labor agreement between the businesses, Callos would provide temporary labor services in exchange for a fee. The temporary labor services that Callos provided included payroll and paperwork services. Under the agreement, Callos would additionally provide and maintain liability insurance coverage for workers' compensation. PSC contracted with Callos to look for employees capable of performing yard work, such as loading, unloading, and burning scrap metal. Callos interviewed, hired, and referred Thomas to PSC, who was looking for a scrap burner. Thomas began working at PSC's scrap yard on Youngstown-Hubbard Road in Youngstown, Ohio.

         {¶5} On August 22, 2014, less than three weeks after he began working at PSC, Thomas was torch cutting a steel-wheel pavement roller at PSC's scrap yard. Immediately after he began cutting, the clothing underneath his protective gear caught fire. Thomas's coworkers, who were nearby performing other tasks, heard Thomas's screams and put the fire out with a fire extinguisher approximately two or three minutes after it began. Unfortunately, the fire caused severe and permanent burns on Thomas's torso and legs.

         {¶6} Thomas subsequently filed a workers' compensation claim against Callos and received workers' compensation benefits.[1] In addition to his workers' compensation claim, Thomas also applied to the Industrial Commission of Ohio for an additional award for violation of a specific safety requirement ("VSSR") against PSC. PSC settled the VSSR claim with Thomas and paid him $25, 000.

         {¶7} Later, Thomas and his wife, Beverly, filed a complaint in the Cuyahoga County Court of Common Pleas against PSC, Cleveland Auto Wrecking, Callos, five "John Doe" corporations" and five "John Does."[2] The complaint listed five causes of action, including four claims for negligence and intentional tort alleged separately against PSC, Callos, the John Doe corporations, and the John Does. The fifth cause of action was for loss of consortium against all of the defendants.

         {¶8} PSC filed an answer and a cross-claim against Callos for indemnification. PSC subsequently filed an amended answer that did not include the cross-claim. Callos filed an answer to the complaint as well as to PSC's cross-claim and filed its own cross-claim against PSC for indemnity and contribution. The parties engaged in discovery and conducted a number of depositions.

         {¶9} On May 12, 2017, PSC and Callos filed separate motions for summary judgment as to the plaintiffs' claims. Callos also filed a motion for summary judgment as to PSC's cross-claim against it.

         {¶10} Thomas and Beverly subsequently moved to voluntarily dismiss Callos from their lawsuit, which the court granted without prejudice and subsequently found Callos' motions for summary judgment were moot. Thomas and Beverly then filed a motion in opposition to PSC's motion for summary judgment. PSC filed a reply brief in ...

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