Bacha v. Sam Pitzulo Homes & Remodeling, LLC, Case No. 17 MA 0097
| Decision Date | 05 March 2019 |
| Docket Number | Case No. 17 MA 0097 |
| Citation | 2019 Ohio 878 |
| Parties | THOMAS M. BACHA ET AL., Plaintiffs-Appellants, v. SAM PITZULO HOMES & REMODELING, LLC ET AL., Defendants-Appellees. |
| Court | Ohio Court of Appeals |
OPINION AND JUDGMENT ENTRY
Atty. Paul Flowers, Terminal Tower, Suite 1910, 50 Public Square, Cleveland, Ohio 44113, Atty. David Grant, Atty. Frank Gallucci, III, Pelvin & Gallucci Co., L.P.A., 55 Public Square, Suite 2222, Cleveland, Ohio 44113, Atty. Joseph Schiavoni, Schiavoni, Schiavoni, Bush & Muldowney, 87 Westchester Drive, Youngstown, Ohio 44515, for Plaintiffs-Appellants, and Atty. James Featherstone, 585 South Front Street, Suite 210, Columbus, Ohio 43215, Atty. Adam Buente, Manchester Newman & Bennett, The Commerce Building, Second Floor, 201 East Commerce Street, Youngstown, Ohio 44503, for Defendants-Appellees.
{¶1} Plaintiffs-appellants, Thomas and Dawn Bacha, appeal the judgment of the Mahoning County Common Pleas Court granting summary judgment in favor of defendants-appellees, Sam Pitzulo Homes & Remodeling, LLC and Sam Pitzulo & Associates General Contractors, Inc., on their claims for negligence, negligence per se, and loss of consortium.
{¶2} In March of 2014, appellees were hired as the general contractors for the Hoffman-Miller project (the project). The project's plan was to remodel the hallway and kitchen of a residential property located in Poland, Ohio. Appellees hired Cusimano Electric as the subcontractor to complete the necessary electrical work. Cusimano assigned Thomas Bacha to the project.
{¶3} On March 19, 2014, Thomas arrived at the project site at approximately 6:30 a.m. A meeting with all project staff was held at this time where Vincent Moretti, appellees' lead carpenter on the project, informed all workers that the floor panels in the kitchen were going to be removed in order to install insulation in the crawlspace. Aside from Moretti, appellees had two other employees at the project on this day: Gino Gentile and Mark Vinion. Thomas was also present at this meeting and heard the announcement regarding the floorboards being removed.
{¶4} At approximately 11:00 a.m., Thomas ascended a six-foot step ladder in order to split a wire and re-feed a circuit with an additional breaker. This particular task took place in the kitchen pantry doorway. While Thomas was on the ladder, appellees' employees began removing the floor panels in the kitchen. The removal of the floor panels exposed the joists that were supporting the floor. There was a large gap in between each of the joists. There was also approximately a three-foot drop in between the joists that ended at the concrete foundation of the home.
{¶5} One of the removed floor panels was approximately six inches away from the foot of Thomas' ladder where he was still working on his rewiring task. When Thomas descended the ladder, he fell in between the joists and suffered injuries.
{¶6} Appellants brought this action against appellees. Thomas asserted claims of negligence and negligence per se. Dawn, as Thomas' wife, asserted a claim of loss of consortium due to the injuries Thomas sustained.
{¶7} After discovery was completed, appellees filed a motion for summary judgment. Appellees argued that they owed Thomas no duty because he was the employee of an independent contractor. Appellees also argued that they owed no duty to protect Thomas from hazards which are inherently present due to the nature of construction work.
{¶8} Appellants argued that regulations such as the Occupational Safety and Health Act (OSHA) imposed a duty on appellees to create and maintain a safe workspace. Appellants argued that appellees breached that duty by removing the floor panels at the foot of Thomas' ladder and such breach was the proximate cause of Thomas' injury. Appellants also argued that appellees actively participated in creating the hazard (removing the floor boards) that injured Thomas.
{¶9} In a judgment entry dated May 4, 2017, the trial court granted appellees' motion for summary judgment. The trial court held that appellees did not owe Thomas a duty of care because: Thomas was the employee of a subcontractor; Thomas had been performing construction work for several years which made him aware that construction sites were dangerous; appellees did not direct or control Thomas; and appellees did not participate or assist Thomas on the date of his injury. Appellants timely filed this appeal on June 1, 2017. Appellants now raise a single assignment of error.
{¶10} Appellants' sole assignment of error states:
THE TRIAL COURT ERRED, AS A MATTER OF LAW, BY GRANTING SUMMARY JUDGMENT AGAINST PLAINTIFF-APPELLANTS UPON THEIR PERSONAL INJURY CLAIM AGAINST DEFENDANT-APPELLEES [JUDGMENT ENTRY DATED MAY 4, 2017].
{¶11} Appellants argue that summary judgment in favor of appellees on both their negligence and negligence per se claims was improper. Appellants argue that appellees had a common law and statutory duty to maintain a safe workspace for all of the people present at the project. Appellees' employees breached that duty when they removed the floorboard at the base of Thomas' ladder without informing him that that specific panel was removed and that such breach proximately caused Thomas' injuries.
{¶12} An appellate court reviews a trial court's summary judgment decision de novo, applying the same standard used by the trial court. Ohio Govt. Risk Mgt. Plan v. Harrison, 115 Ohio St.3d 241, 2007-Ohio-4948, 874 N.E.2d 1155, ¶ 5. A motion for summary judgment is properly granted if the court, upon viewing the evidence in a light most favorable to the nonmoving party, determines that: (1) there are no genuine issues as to any material facts; (2) the movant is entitled to judgment as a matter of law, and (3) the evidence is such that reasonable minds can come to but one conclusion and that conclusion is adverse to the opposing party. Civ.R. 56(C); Byrd v. Smith, 110 Ohio St. 3d 24, 2006-Ohio-3455, 850 N.E.2d 47, ¶ 10.
{¶13} "[T]he moving party bears the initial responsibility of informing the trial court of the basis for the motion, and identifying those portions of the record which demonstrate the absence of a genuine issue of fact on a material element of the nonmoving party's claim." Dresher v. Burt, 75 Ohio St.3d 280, 296, 662 N.E.2d 264 (1996). The trial court's decision must be based upon "the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action." Civ.R. 56(C). The nonmoving party has the reciprocal burden of specificity and cannot rest on the mere allegations or denials in the pleadings. Id. at 293.
{¶14} Summary judgment is appropriate when there is no genuine issue as to any material fact. A "material fact" depends on the substantive law of the claim being litigated. Hoyt, Inc. v. Gordon & Assoc., Inc., 104 Ohio App.3d, 598, 603, 662 N.E.2d 1088 (8th Dist. 1995), citing Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 247-248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
{¶15} We will first address appellants' negligence claim. "The elements of a negligence claim are: (1) the existence of a duty owed by the defendant to the plaintiff; (2) breach of that duty; (3) harm to the plaintiff caused by the breach; and (4) damages." Lagowski v. Shelly & Sands, Inc., 7th Dist. No. 13 BE 21, 2015-Ohio-2685 ¶ 7 citing Anderson v. St. Francis-St. George Hosp., Inc., 77 Ohio St.3d 82, 84, 671 N.E.2d 225 (1996). "Whether the defendant owes a duty to the plaintiff presents a legal question that depends upon the foreseeability of the plaintiff's injuries." Id. citing Menifee v. Ohio Welding Products, 15 Ohio St.3d 75, 77, 472 N.E.2d 707 (1984). "An injury is foreseeable if a reasonably prudent person would have anticipated that any injury was likely to result from the performance or nonperformance of an act." Id.
{¶16} The relationship between appellees and Thomas was general contractor and the employee of a subcontractor. As such, the doctrine of active participation applies in order to determine if appellees owed Thomas a duty.
{¶17} The Ohio Supreme Court clarified the doctrine of active participation in Bond v. Howard Corp., 72 Ohio St.3d 332, 650 N.E.2d 416 (1995). In Bond, the Court defined actively participated as "the general contractor directed the activity which resulted in the injury and/or gave or denied permission for the critical acts that led to the employee's injury, rather than merely exercising a general supervisory role over the project." Id. at 337. The Court also held that in order for a general contractor to be liable for the injury to the employee of an independent contractor, the general contractor must actively participate in that injury. See Id. at 333-337.
{¶18} The crux of appellees' argument and the trial court's ruling is that because appellees did not direct the activities that lead to Thomas' injuries, they did not owe Thomas a duty of care. This argument has merit.
{¶19} Thomas was not appellees' employee, he was an employee of Cusimano Electric. (Bacha Dep. 66). Moretti testified that, whenever appellees used subcontractors, the subcontractors and appellees' employees were in charge of their respective tasks. (Moretti Dep. 13-14). Thomas also testified that his boss was Frank Cusimano. (Bacha Dep. 64-65). There is nothing in the record that indicates appellees or their employees were directing Thomas' work or gave or denied Thomas permission for the critical acts that led to his injuries. Pursuant to Bond, appellees did not actively participate in Thomas' injuries.
{¶20} But appellants argue...
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