Court of Appeals of Ohio, Eighth District, Cuyahoga
ANTHONY THOMAS, ET AL. PLAINTIFFS-APPELLANTS
PSC METALS, INC., ET AL. DEFENDANTS-APPELLEES
Appeal from the Cuyahoga County Court of Common Pleas Case
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.
JOURNAL ENTRY AND OPINION
J. BOYLE, PRESIDING JUDGE.
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
Procedural History and Factual Background
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.
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.
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.
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.
Thomas subsequently filed a workers' compensation claim
against Callos and received workers' compensation
benefits. 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.
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." 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.
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.
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.
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 ...