CASE NO. 2012-1133 IN THE SUPREME OF

CRAIG D. PINKERTON, et al,

Plaintiffs-Appellants, RED

vs. AUG n 3 1:ui2

J & H REINFORCING AND STRUCTURA CLkRK OF C®URT ERECTORS, INC., et al., OF ®HI®

Defendants-Appellees.

On Appeal from the Court of Appeals Fourth Appellate District, Scioto County, Ohio Case Nos. 10-CA-3386 and 10-CA-3388

DEFENDANT-APPELLEE J&H REINFORCING AND STRUCTURAL ERECTORS, INC.'S MEMORANDUM IN RESPONSE TO APPELLANTS' MEMORANDUM IN SUPPORT OF JURISDICTION

Michael S. Miller (0009398) William B. Benson (0047181) Mark C. Melko (0069396) Craig P. Scott (0041405) WILES, BOYLE, BURKHOLDER VOLKEMA THOMAS, LPA 140 E. Town Street, Suite 1100 & BRINGARDNER Co., LPA Columbus, Ohio 43215 300 Spruce Street, Floor One Columbus, Ohio 43215-1173 (614) 221-4400 / Fax (614) 221-6010 (614) 221-5216 / Fax (614) 221-5692 email: [email protected] [email protected] email: [email protected] [email protected] Attorneyfor Plaintiffs-Appellants Attorneys for Defendant-Appellee Andrew D. Sonnek (0086040) BBL-Carlton, LLC Greg A. Goldblatt (0084668) David G. Jennings (0040487) SONNEK & GOLDBLATT, LTD. Teetor (0023355) 5725 Dragon Way, Suite 215 J. Stephen ISAAC, BRANT, LEDMAN & TEETOR, LLP Cincinnati, Ohio 45227 (513) 417-8692 / Fax (513) 453-4446 250 East Broad Street email: [email protected] Columbus, Ohio 43215 [email protected] (614) 221-2121 / Fax (614) 365-9516 Attorneys for Ohio Bureau of Workers email: [email protected] [email protected] Compensation Attorneys for Defendant-Appellee J&H Reinforcing and Structural Erectors, Inc. I. AS THIS CASE DOES NOT PRESENT AN ISSUE OF GREAT PUBLIC OR GENERAL INTEREST , JURISDICTION SHOULD NOT BE GRANTED

A. INTRODUCTION

This case involves an accident on a construction site where plaintiff was an employee of a subcontractor on the site, and defendant-appellee was another subcontractor. Plaintiffs work admittedly was not directed by defendant-appellee J&H and his accident was not caused by any direct activity of defendant-appellee. The plaintiff merely tripped over a static condition that had existed on the construction premises located where plaintiff's own employer had been working for months. The plaintiff s employer knew of the presence of the door clip in the floor. As such, this case presents no novel issue -- it involves a construction accident and the rules of law that apply as between contractors and another contractor's employees. The well-settled dictates that unless a contractor actively participated in causing the injury by directing the activity or was involved in the critical acts that led to the employee's injury, there is no liability.'

(Court of Appeals Opinion, p. 13 citing Bond.)

Appellant's argument that some other duty exists between independent subcontractors on a jobsite is simply an incorrect analysis of the law. Further, appellant's argument that the Court

of Appeals held that no duty exists between independent subcontractors mischaracterizes the

Court of Appeals ruling. The Court of Appeals correctly ruled that no duty exists unless

defendant-appellee actively participated in the cause of the injury. Active participation is the

duty analysis. Any other ruling involving liability of the various contractors on an inherently

dangerous construction site would make no sense. Any contractor (or general contractor) on a jobsite has a duty not to actively cause injury to another's worker. (See Court of Appeals

Opinion at p. 11.)

1 Bond v. Howard Corp., 72 Ohio St.3d 332, 650 N.E.2d 416 (1995).

627358 1 However, as in this case, that duty does not extend to situations where another worker's injury was not caused by any direct activity or active participation. Thus, this case does not involve any novel legal analysis and no novel issue of fact. The case law involving inherently dangerous construction sites is well settled by this Court. (Cafferkey; Kucharski; Bond,•

Michaels.)2

B. FACTS

As addressed by the Court of Appeals de novo, the facts in this case did not establish active participation:

Despite extensive discovery, it could not be determined who, exactly, had removed the doors and the mullion. Several witnesses testified that employees of J&H Reinforcing would have been responsible because J&H Reinforcing was the independent contractor in charge of doorframes. According to these witnesses, union rules would have prevented the employees of any other independent contractor from removing the doors and the mullion. But an employee of BBL- Carlton testified ( 1) that J&H Reinforcing was not contractually responsible for removing the doors and mullion and (2) that anybody could have done it. Significantly, there was no evidence that either J&H Reinforcing or BBL-Carlton had directed the activities of Dixon Electrical or Craig Pinkerton. Furthermore, there was no evidence that either J&H Reinforcing or BBL-Carlton had given permission for the critical acts that led to Craig Pinkerton's injuries.

Court of Appeals Decision, p. 3. The door clip in the floor was present for over a month while

plaintiff's employer and its employees worked in and around the doorway. The facts were fully

briefed in the case below and did not establish that defendant-appellee created this condition or

controlled the doorway.

C. THIS CASE Is NOT OF GREAT PUBLIC OR GENERAL INTEREST

This is a case where appellants simply disagree with the trial court's and Court of

Appeals' application of existing law to the facts of the case. It is therefore not a case that

2 Cafferkey v. Turner Constr. Co., 21 Ohio St.3d 110, 488 N.E.2d 189 ( 1986); Kucharski v. Nat'1 Engineering Contracting Co., 69 Ohio St.3d 430, 633 N.E.2d 515 ( 1994); Bond, 72 Ohio St.3d 332; Michaels v. Ford Motor Co., 72 Ohio St.3d 475, 650 N.E.2d 1352 (1995).

527358 2 involves public or great general interest. In fact, the Court of Appeals directly applied

Kucharski, 69 Ohio St.3d 430 in coming to the same conclusion that this Court did in Kucharski in determining that no duty existed between independent subcontractors under the facts of the case. Kucharski held:

we find as a matter of law that National owed no duty of care to Kucharski and could not properly be found liable ... and exercised no control over him.

Id. at 434-435 (emphasis added). Further, Kucharski only involved a narrow issue:

The narrow issue we will decide in this matter is whether R.C. 4101.13 may be used as the basis of a negligence suit by an employee of one independent contractor against a second independent contractor working on a common building site, when the parties lack both a contractual relationship and control of each other's employees. We hold that it may not.

Id. at 432. Here, the Court of Appeals made the same ruling and analysis that this Court did in

Kucharski in applying the active participation analysis to determine that no duty existed by virtue of the facts in this case:

Here, J&H Reinforcing did not supervise the work of Dixon Electrical or Craig Pinkerton. Instead, J&H Reinforcing and Dixon Electrical were both independent subcontractors on the same inherently dangerous worksite. And we do not believe that, absent active participation, J&H Reinforcing should have owed some duty to Craig Pinkerton while the general contractor would have owed him no duty whatsoever. Because of its supervisory capacity, the general contractor would have had more control over Craig Pinkerton's work than J&H Reinforcing had. Thus, we will not apply a heightened duty of care to an entity that had less actual influence over Craig Pinkerton's work environment.

Finally, Kucharski expressly "approved and followed" the holding in Cafferkey. See Kucharski at syllabus. Therefore, it is logical to assume that Cafferkey's no- duty-without-active-participation rule would extend to fellow independent subcontractors under Kucharski.

Accordingly, to establish that J&H Reinforcing owed a duty to Craig Pinkerton, the Pinkertons must show that J&H Reinforcing actively participated in Dixon Electrical's job operations.

Court of Appeals Decision, paras. 27-29.

527358 3 Appellant's argument that the Court of Appeals failed to apply Kucharski is simply

incorrect. The Court of Appeals applied the active participation law to determine duty and

specifically stated as such in its Decision. Again, Kucharski specifically, in both the syllabus

and in the opinion, followed the active participation rules in Cafferkey in its detennining that there was no duty. The Court states: "We defined exactly what duty of care a general contractor

owes to its subcontractors in Cafferkey..." Id. at 433. In every construction case, as in the present case, the question of whether a duty arises is a question of active participation.

In Bond (decided after Kucharski) this Court specifically decided that the issue of whether a duty is owed by a contractor to a subcontractor's employee is a determination of whether there was active participation. Id. at pp. 333, 334.3 Thus, appellants are wrong in their

analysis and in the interpretation of precedent. It is not that there is no duty owed by a general

contractor, premises owner or independent subcontractor to another contractor's employee -- the

determination whether a duty existed in each case is an analysis of active participation. The

Court of Appeals correctly followed the Court's well-established precedent (in Cafferkey;

Kucharski; Bond) and there is no reason for that precedent to be reanalyzed in this case.

What appellants propose is that this Court redecide Kurcharski to hold that the active participation standard applies only as between a general contractor and an employee of a

subcontractor, but not as between subcontractors on a jobsite. This argument ignores the very holding in Kucharski and other of Appeals that have correctly applied Kucharski. Solanki v. Doug Freshwater Contracting, Inc., No. 06-JE-39, 2007-Ohio-6703 (7th Dist.); Anderson v.

Snider Cannata Co., et al., No. 91801, 2009-Ohio-4363 (8th Dist.); Kratzer v. General Motors

3"The first issue is whether the general contractor Howard owed a dutv of care to Bond, an employee of the subcontractor Valentine ° Id at 333. "we must determine if the evidence supports a finding that Howard owed a duty of care to Bond to protect Bond from injuries he sustained when he fell from the second floor of the construction project." Id at 334 (emphasis added).

527358 4 Corp., 2d Dist., Nos. 16590, 16593, 16594, 1998 Ohio App. LEXIS 1655 (Feb. 27, 1998).

Appellants cite no authority to the contrary.

As Kurcharski was decided in 1994 (and Bond in 1995), there has obviusly not been the

"confusion" that appellants argue is the reason for great general interest. In fact, the opposite is true. The three courts of appeals have decided that active participation rules apply as between employees of independent contractors. Solanki; Anderson; Kratzer. Appellee submits that the

"confusion" exhorted by appellants is merely their own disagreement with the Court of Appeals analysis and the court's application of law to fact. Such an argument does not support this

Court's granting of jurisdiction based upon great public or general interest. The active participation analysis has been the law in Ohio for two decades, does not need to be readdressed, and has not caused "confusion" in Ohio's courts.

The question presented by appellants:

whether an independent contractor who does not actively participate in another independent contractor's work owes any duty of ordinary care

(Appellant's Memorandum, p. 5) is not even a question at all. The ordinary care (duty) that is

owed is the active participation analysis. This was the holding and sp e cific analysis of

Kurcharski that appellant continues to completely ignore. This Court determined that there was

no duty in Kucharski specifically because the defendant did not actively participate under well

established precedent (Cafferkey) that has been the law in Ohio now for three decades. Simply

put, the duty of ordinary care between subcontractors (same rule for any contractor) is an active

participation analysis. There is no real issue presented by this case.

527368 5 Finally, some lesser duty standard between independent contractors on an inherently dangerous construction site simply makes no sense. Appellants admit that subcontractors on a jobsite "do not have possession or control of the workplace." (Appellants' Memorandum, p. 4.)

To not apply an active participation analysis as between independent contractors who do not have control over each other or the workplace is not in the public's interest and is certainly not in the interest of multiple parties that work and are involved on construction sites. The law and public policy in Ohio has been developed to stress that those contractors on a jobsite are responsible for their own employees 4

Appellants want this Court to create a duty that falls short of an active participation analysis -- but only as between independent contractors who otherwise have no privity or control over each other's workers. This is not in the public interest, and was not the intent of the Court's

and its active participation ruling in Kucharski which expressly approved and followed Cafferkey rules in deciding whether a duty existed as between independent contractors.

II. ARGUMENT AGAINST PLAINTIFFS-APPELLANTS' PROPOSITIONS OF LAW

A. KUCHARSKI DOES NOT CREATE A DIFFERENT DUTY As ARGUED BY PLAINTIFFS-APPELLANTS

Plaintiffs-Appellants' legal analysis argues that the active participation rule, cited in hundreds of cases, only applies to a general contractor, but not between other independent

4 The Ohio Supreme Court has spoken directly on this issue:

"Each employee of an independent contractor is under the immediate direction and supervision of his own employer, and for this reason courts take the position that ... notice to the independent contractor of hazards within the employment area is notice to his employees, as such independent contractor has the duty to transmit such notice or waming to his individual employees."

Eicher v. Schwarz v. General Electric Realty Corp., 163 Ohio St. 354, 359-60, 126 N.E.2d 906 (1955). See also United States Steel Corp., 32 Ohio St.3d 248, 250, 512 N.E.2d 1165 (1987) (The primary responsibility to protect an employee is his own employer, where the employer is an employee of an independent contractor).

527358 6 contractors on an inherently dangerous jobsite. The case law as established by the string of Ohio

Supreme Court cases sets forth the analysis of law on jobsites. 5 A contractor is not liable for an injury to a subcontractor's employee unless the contractor was actively involved in the "critical act" that caused or led to the injury.6 It does not matter that the contractor may have a general supervisory role over certain aspects of jobsite safety -- general duties do not extend to a specific duty to an employee of another over whom the contractor has no control. It would be an extremely odd result if an independent contractor, merely by virtue of being another subcontractor on site, would somehow have less protection under this rule of law than the general contractor. Clearly, an independent contractor has no duty to protect another subcontractor's employee, just as the general contractor does not. Any other interpretation of the law would simply make no sense.

Plaintiffs-Appellants cite Kucharski for their argument that somehow a duty of ordinary care is somehow a lesser standard than the jobsite duty as set forth in the aforementioned Ohio

Supreme Court cases. Kucharski, however, does not stand for that proposition. Kucharski, in its syllabus specifically applies Cafferkey to a case involving two independent contractors:

An independent contractor who lacks a contractual relationship with a second independent contractor owes no affirmative duty beyond that of ordinary care to the employees of the second contractor, where the first contractor does not supervise or actively participate in the second contractor's work. (Cafferkey v. Turner Constr. Co. (1986), 31 Ohio St.3d 110, 21 OBR 416, 488 N.E.2d 189, approved and followed.)

In directly applying the active participation rule, the Ohio Supreme Court in Kucharski dismissed

the claims against the independent contractor:

452 N.E.2d 326 (1983); 5 Cafferkey, 31 Ohio St.3d 110; Hirschbach v. Cinti Gas & Electric, 6 Ohio St.3d 206, Bond, supra; Michaels, supra.

6 See Bond at 337 (Active participation means participation in the action that dv' eatlv leads to the injury or denied permission for the critical act that caused the injury).

527358 7 we find as a matter of law that National owed no duty of care to Kucharski and could not properly be found liable ... and exercised no control over him.

Id. at 434-435 (emphasis added). Also, the Supreme Court expressly stated it was only deciding the "narrow issue" of the applicability of R.C. 4101.13 (removal of a safety railing). Regardless, the Supreme Court in Kucharski applied the active participation rule in Cafferkey to determine there was no duty. Thus, it is not correctly cited for the proposition plaintiffs-appellants wish it to be. Finally, the claims of the independent contractor were dismissed (no duty) even though the dissent argued that the independent contractor had left the planks that plaintiff tripped over.

Id. at 435. As such, Kucharski supports defendant-appellee's argument.

In Solanki, 2007-Ohio-6703, the Seventh Appellate District affirmed the trial court's judgment in favor of the contractor. The factual scenario before this Court is not unlike the one confronted in Solanki: 1) injured party was on the premises to do wiring, 2) the task required moving about an active construction site, 3) no direct contractual relationship existed between the injured party and the contractor, 4) the contractor did not supervise or control the work of the alleged injured party, and 5) the injured party and contractor simply worked on the same premises. Given these facts, the Solanki court had little difficulty upholding the trial court's decision: "[b]ecause Solanki was engaged in inherently dangerous work and the [Defendants] did not actively participate in his work, the [Defendants] owed no duty to Solanki." Id at P70.

One case that specifically addresses this argument is Kratzner. It rejects appellant's position. The active participation analysis is the same whether the defendant is a general contractor or an independent subcontractor on the jobsite: "That is, the duty of ordinary care imposed by Kucharski does not require Morrison [independent contractor] to protect Kratzner from injuries he may suffer at the jobsite unless it can be shown that Morrison actively participated in the work which proximately resulted in Kratzner's injuries." See also Anderson,

527358 8 2009-Ohio-4363 (Plaintiff fell down an open stairwell and alleged that another subcontractor failed to install a safety rail. The court held that the defendant subcontractor did not owe a duty to plaintiff where there is an obvious inherent danger on an unfinished construction site and the subcontractor did not control the premises).

The case law shows that there has not been confusion in the courts over the last couple decades. The case law shows that the active participation analysis is the duty analysis that applies to all contractors on a jobsite.

B. APPELLANTS INCORRECTLY ARGUE THAT SoPKOVICH APPLIES

The Court of Appeals below discussed and distinguished Sopkovich v. Ohio Edison Co.,

81 Ohio St.3d 628, 693 N.E.2d 233 (1998) at length (at pp. 14-15) and correctly rejected appellants' analysis. The Court of Appeals held that Sopkovich concerned the owner of the property not two independent contractors) who had exclusive control over deactivation of electrical lines. (Decision, p. 15.)

Sopkovich (where defendant had control over deenergizing electrical lines that electrocuted a worker) does not support appellants' faulty argument that J&H exercised exclusive control over a critical variable. Appellant's argument is less than persuasive for the following reasons:

(1) The holding in Sopkovich is limited to facts that are not present in this case, and,

(2) Alleged knowledge of a dangerous condition does not constitute control over a critical workplace variable.

Appellants erroneously argued that the Ohio Supreme Court in Sopkovich expanded the

"active participation" doctrine to impose a duty upon those who exercise control over a critical variable in the working environment. This reading is too broad and courts have held that

527358 9 Sopkovich applies only to its facts and responsibility for deactivating electrical lines.7 In

Sopkovich, Ohio Edison "retain[ed] and exercise[ed] exclusive control over a critical variable in the working enviromnent, i.e., the deactivation of specific electrical conductors in the work area." Id. at 643 (emphasis added). Sopkovich thus has no applicability to this case where the facts are not even remotely similar and where defendant-appellee had no involvement or control over plaintiff's work and did not actively participate in the cause of the accident.

CONCLUSION

For the reasons expressed above, and for the reasons discussed in the Court of Appeals

Decision, plaintiff-appellants' Motion for Jurisdiction should be denied.

David G. Jennings ' (0040487) J. Stephen Teeto (0023355) ISAAC, BRANT DMAN & TEETOR, LLP 250 East Broad treet Columbus, Ohio 43215 (614) 221-2121 Fax (614) 365-9516 email: [email protected] [email protected] Attorneys for Defendant-Appellant J&H Reinforcing and Structural Erectors, Inc.

See Rockett v. Newark Builders Supply, Inc., et al., 169 Ohio App. 3d 379, 2006-Ohio-5715, 863 N.E.2d 177 (2006) (Although the Sopkovich court did address active participation, it limited it strictly to the owner of the property, Ohio Edison, and its exclusive control and communication over deactivation of electrical lines. Sopkovich at 643. As such, we find the holding of Sopkovich does not expand on the active participation doctrine as applied to this case, a general contractor who did not have exclusive control over the subcontractor and/or independent contractors).

527358 10 CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing has been served by regular U.S. mail, postage prepaid, this 3 day of August, 2012, upon the following:

Craig P. Scott (0041405) Andrew D. Sonnek (0086040) VOLKEMA THOMAS, LPA Greg A. Goldblatt (0084668) 140 E. Town Street, Suite 1100 SONNEK & GOLDBLATT, LTD. Columbus, Ohio 43215 5725 Dragon Way, Suite 215 (614) 221-4400 Cincinnati, Ohio 45227 Fax (614) 221-6010 (513) 417-8692 / Fax (513) 53-4446 email: [email protected] email: [email protected] Attorneyfor Plaintiffs [email protected] Attorneys for Ohio Bureau of Workers William B. Benson (0047181) Compensation Mark C. Melko (0069396) WILES, BOYLE, BURKHOLDER & BRINGARDNER Co., LPA 300 Spruce Street, Floor One Columbus, Ohio 43215-1173 (614) 221-5216 Fax (614) 221-5692 email: [email protected] [email protected] Attorneys for Defendant BBL-Carlton, LLC

527358 11