CASE NO. 2012-1133 IN THE SUPREME COURT OF OHIO 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., SUPREME COURT 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 law of Ohio 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.