Barnett v. Beazer Homes Invests., L.L.C.

• Decision Date: 22 December 2008
• Docket Number: No. CA2007-11-276.,CA2007-11-276.
• Citation: 905 N.E.2d 226,180 Ohio App.3d 272,2008 Ohio 6756
• Parties: BARNETT et al., Appellants, v. BEAZER HOMES INVESTMENTS, L.L.C., et al., Appellees.
• Court: Ohio Court of Appeals

905 N.E.2d 226

180 Ohio App.3d 272

2008-Ohio-6756

BARNETT et al., Appellants, v. BEAZER HOMES INVESTMENTS, L.L.C., et al., Appellees.

No. CA2007-11-276.

Court of Appeals of Ohio, Twelfth District, Butler County.

Decided December 22, 2008.

Cohen, Todd, Kite & Stanford, L.L.C., Michael R. Schmidt, Kenneth D. Jameson, and Joseph M. Hutson, Cincinnati, for appellants, Ronnie and Sherry Barnett.

Paul T. Saba and Rebecca N. Algenio, Cincinnati, for appellees Beazer Homes Investments and Beazer Homes USA, Inc.

Faulkner & Tepe L.L.P., and John C. Scott, Cincinnati, for appellees Oehler Custom Gutters, Inc. and Rich Oehler.

Amy Spiller, for appellees Duke Energy Operating Company and Duke Energy Ohio, Inc.

WALSH, Presiding Judge.

{¶ 1} Plaintiffs-appellants, Ronnie and Sherry Barnett,¹ appeal the decision of the Butler County Common Pleas Court granting summary judgment in a negligence action in favor of defendants-appellees, Beazer Homes Investments, L.L.C., Beazer Homes USA, Inc. (collectively "Beazer"), Duke Energy Ohio, Inc., and Duke Energy Corporation (collectively "Duke").² We reverse and remand.

{¶ 2} On February 5, 2005, Barnett, an employee of Oehler Custom Gutters, Inc. ("Oehler"), sustained serious injuries when he came into contact with a high-voltage electrical line while installing gutters on a house under construction by Beazer in the Elk Creek Estates subdivision in Trenton, Ohio. Beazer, as general contractor and owner of the property, subcontracted the gutter-installation work to Oehler.

{¶ 3} The electrical line at issue was composed of both a 7,200-volt phase line and a neutral line. The phase line was suspended approximately 20 feet in the air along the eastern property line, four feet above the neutral line. The electrical line was owned and operated by Duke pursuant to a utility easement on the property. The line serviced a nearby trucking company and a personal residence, but did not service any homes within the subdivision. Beazer did not discover Duke's easement when platting the subdivision and became aware of the electrical line only after beginning construction of the house. As a result, a distance of approximately ten feet separated the eastern side of the house from the electrical line.

{¶ 4} Barnett's accident occurred while he was carrying a 31-foot section of gutter up a ladder positioned near the southeast corner of the house. Barnett balanced the gutter across his arms while climbing the ladder to the two-story roof line. When he reached the top of the ladder, he attempted to lay the gutter onto the roof. In doing so, a portion of the gutter came into contact with the 7,200-volt phase line. According to Barnett, he did not see the line prior to the accident. Richard Oehler, an employee who was assisting Barnett with the gutter installation, also testified that he did not see the electrical line.

{¶ 5} On January 14, 2005, approximately three weeks prior to Barnett's accident, employees of another Beazer subcontractor were installing siding on the eastern side of the house when a ladder they were using fell into the electrical line, causing a partial outage to the trucking company. Duke responded to the outage and issued a written safety warning to Beazer. Due to the close proximity of the electrical line to the area in which the individuals were working, Duke warned Beazer that no further work could be completed on the eastern side of the house without first contacting Duke to have the line de-energized. Both Oehler and Barnett were unaware of Duke's warning or the siding subcontractor's incident with the electrical line until after Barnett's accident.

{¶ 6} Barnett filed suit against Beazer, alleging that as owner of the property and general contractor for the construction of the subdivision, Beazer had a duty to maintain the premises in a reasonably safe condition and to warn Barnett of the electrical line, a hazardous condition on the property. Barnett also asserted a negligence claim against Duke as owner and operator of the electrical line, alleging that Duke had a duty to abate the condition, or at a minimum, to warn Barnett of the hazard posed by the line. Duke asserted a cross-claim against Beazer Homes Investments, L.L.C., alleging contribution and indemnification, and a third-party complaint against Oehler. Beazer Homes Investments, L.L.C. also filed a third-party complaint for contribution, indemnification, and negligence against Oehler and Richard Oehler.

{¶ 7} Beazer and Duke filed motions for summary judgment, which were granted by the trial court.³ With respect to Beazer, the trial court concluded that no duty of care was owed to Barnett because he was engaged in inherently dangerous work and the hazard posed by the electrical line was open and obvious. With respect to Duke, the court determined that although there was an issue of fact as to whether Duke could have reasonably anticipated Barnett's accident, the electrical line was an open and obvious hazard on the property and therefore, Duke owed no duty of care to Barnett. Although Oehler and Richard Oehler also filed a motion for summary judgment, the trial court did not reach the merits of the motion, concluding that it was rendered moot by the court's determination that no duty of care was owed to Barnett. Both Oehler and Richard Oehler were dismissed from the action and are not parties to this appeal.

{¶ 8} Barnett now appeals the trial court's decision granting summary judgment in favor of Beazer and Duke, raising four assignments of error for our review.

{¶ 9} Assignment of error No. 1 is as follows:

{¶ 10} "The trial court erred in deciding as a matter of law that Beazer as the general contractor did not owe a duty of care to Barnett because Beazer did not actively participate in Barnett's work or retain control over a critical variable in the workplace."

{¶ 11} In his first assignment of error, Barnett challenges the trial court's determination that Beazer did not owe a duty of care to Barnett because Beazer did not "actively participate" in Barnett's gutter-installation work. He also contends that his injuries were foreseeable by Beazer and therefore, the disposition of the case on the basis of summary judgment was inappropriate. We are persuaded by Barnett's arguments.

{¶ 12} Summary judgment is a procedural device used to terminate litigation and avoid a formal trial when there are no issues in a case to try. Burkes v. Stidham (1995), 107 Ohio App.3d 363, 370, 668 N.E.2d 982, citing Norris v. Ohio Std. Oil Co. (1982), 70 Ohio St.2d 1, 24 O.O.3d 1, 433 N.E.2d 615. This court reviews summary judgment decisions de novo, which means that we review the trial court's judgment independently and without deference to its determinations. Burgess v. Tackas (1998), 125 Ohio App.3d 294, 296, 708 N.E.2d 285. We utilize the same standard in our review that the trial court should have employed. Lorain Natl. Bank v. Saratoga Apts. (1989), 61 Ohio App.3d 127, 129, 572 N.E.2d 198.

{¶ 13} The Ohio Supreme Court has repeatedly held that summary judgment is appropriate under Civ.R. 56 when "(1) there is no genuine issue of material fact, (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds can come to but one conclusion and that conclusion is adverse to the nonmoving party, said party being entitled to have the evidence construed most strongly in his favor." Zivich v. Mentor Soccer Club, Inc. (1998), 82 Ohio St.3d 367, 369-370, 696 N.E.2d 201. Summary judgment should be awarded with caution and is not appropriate where the facts are subject to reasonable dispute. Burkes, 107 Ohio App.3d at 370, 668 N.E.2d 982.

{¶ 14} In order to avoid summary judgment in a negligence action, the plaintiff must show the following: (1) the defendant owed the plaintiff a duty of care, (2) the defendant breached the duty of care, and (3) as a direct and proximate result of the defendant's breach, the plaintiff was injured. Angel v. Kroger Co. (Apr. 8, 2002), Warren App. No. CA2001-07-073, 2002 WL 518101, citing Menifee v. Ohio Welding Prods., Inc. (1984), 15 Ohio St.3d 75, 15 OBR 179, 472 N.E.2d 707. The threshold question of the existence of a duty is "a question of law, * * * and depends on the foreseeability of the injury." Midwestern Indemn. Co. v. Wiser (2001), 144 Ohio App.3d 354, 358, 760 N.E.2d 62. An injury is foreseeable if the defendant "knew or should have known that his act was likely to result in harm to someone." Id.

{¶ 15} The arguments presented under Barnett's first assignment of error require us to examine whether a duty of care was owed by Beazer to Barnett. Under Ohio law, when an employee of a subcontractor is injured while performing work for his or her employer that is "inherently dangerous," the owner of the property and/or general contractor generally owes no duty of care to that employee. See Reno v. Concrete Coring, Inc., Montgomery App. No. 20650, 2005-Ohio-3062, 2005 WL 1415041, ¶ 16. See also Wellman v. E. Ohio Gas Co. (1953), 160 Ohio St. 103, 51 O.O. 27, 113 N.E.2d 629, paragraph two of the syllabus. Although this determination is generally made on a case-by-case basis, working on a construction site has been classified as an inherently dangerous activity. See McCumbers v. Yusa Corp., Fayette App. No. CA2006-05-018, 2006-Ohio-5847, 2006 WL 3186512, ¶ 8, citing Frost v. Dayton Power & Light Co. (2000), 138 Ohio App.3d 182, 194, 740 N.E.2d 734.

{¶ 16} Barnett does not dispute that he was engaged in an inherently dangerous activity while installing gutters on the house. However, Barnett claims that an exception to the no-duty rule exists because Beazer "actively participated" in his work.

{¶ 17} The Ohio Supreme Court has determined that a property owner can be held liable for the injury or death of an employee of an independent subcontractor if it "actually participates[⁴] in the job operation performed by such contractor and thereby fails to...