Cole v. Contract Framing, Inc.

• Decision Date: 16 August 2005
• Docket Number: No. 04AP-678.,No. 04AP-679.,04AP-678.,04AP-679.
• Citation: 2005 Ohio 4244,162 Ohio App.3d 612,834 N.E.2d 409
• Parties: COLE, Appellant, v. CONTRACT FRAMING, INC. et al., Appellees.
• Court: Ohio Supreme Court

834 N.E.2d 409

162 Ohio App.3d 612

2005-Ohio-4244

COLE, Appellant, v. CONTRACT FRAMING, INC. et al., Appellees.

No. 04AP-678.

No. 04AP-679.

Court of Appeals of Ohio, Tenth District, Franklin County.

Decided August 16, 2005.

COPYRIGHT MATERIAL OMITTED

John K. Fitch, Columbus, for appellant.

Alan E. Mazur, Columbus, for appellee Sprouse & Sons Drywall, Ltd.

Vorys, Sater, Seymour & Pease, Bruce L. Ingram, and Perry W. Doran II, Columbus, for appellee M/I Schottenstein Homes, Inc., n.k.a. M/I Homes, Inc.

PETREE, Judge.

{¶1} In this consolidated appeal, plaintiff-appellant, Thomas Cole, appeals from judgments of the Franklin County Court of Common Pleas granting summary judgment in favor of defendants-appellees, Sprouse & Sons Drywall, Ltd., and M/I Schottenstein Homes, Inc. For the reasons set forth below, we reverse the trial court's judgment in favor of Sprouse and affirm the trial court's judgment in favor of M/I. We also remand the matter to the trial court.

{¶2} On March 29, 2001, as plaintiff, an employee of an electrical subcontractor, ascended basement stairs in a residential structure that was under construction, the stairs failed. As a result, plaintiff fell to the ground and was injured.

{¶3} At the time of plaintiff's fall, M/I owned the property that was under construction. Besides owning the property, M/I also served as the general contractor for the construction project and subcontracted parts of the construction project to various subcontractors. According to the evidence, M/I contracted with Contract Lumber, Inc. for lumber and labor for the construction project. Contract Lumber, in turn, subcontracted with Contract Framing, Inc., which hired Robert Coakley to frame the residential structure and install the basement stairs that later failed. Sprouse was a subcontractor that was hired to install drywall in the structure.

{¶4} In an amended complaint in common pleas case No. 02CVC-05-5678, plaintiff sued Contract Framing, Contract Lumber, M/I, Contract Lumber South, Inc.,¹ Sprouse, Robert Coakley, d.b.a. R.C. Builders, and anonymous defendants, alleging various theories of liability, including (1) lack of adequate warnings and defects in the manufacture and design of the stairway, (2) negligence, (3) breach of express warranties or implied warranties, or both, (4) breach of contractual obligations, and (5) willful, wanton, and reckless misconduct.

{¶5} Upon plaintiff's motion, the trial court consolidated common pleas case No. 02CVC-05-5678 with Cole v. J.S. Rails, Inc., common pleas case No. 03CVC-03-3069.² Thereafter, in common pleas case No. 02CVC-05-5678, Contract Framing, Contract Lumber, M/I, and Sprouse separately moved for summary judgment concerning all claims made against them.

{¶6} The trial court denied the summary judgment motions of Contract Framing and Contract Lumber. However, in separate judgments, the trial court granted summary judgment in favor of M/I and Sprouse. In its judgments in favor of M/I and Sprouse, the trial court expressly determined that there was no just reason for delay. See, generally, Civ.R. 54(B).

{¶7} From the judgments in favor of Sprouse and M/I, plaintiff timely appeals. By journal entry, this court sua sponte consolidated the appeals.

{¶8} From the trial court's judgment in favor of Sprouse, plaintiff assigns a single error:

The trial court erred in granting summary judgment to appellee Sprouse & Sons Drywall, Ltd.

{¶9} From the trial court's judgment in favor of M/I, plaintiff assigns a single error:

The trial court erred in granting summary judgment to appellee M/I Schottenstein Homes, Inc.

{¶10} Appellate review of a lower court's granting of summary judgment is de novo. Mitnaul v. Fairmount Presbyterian Church, 149 Ohio App.3d 769, 2002-Ohio-5833, 778 N.E.2d 1093, at ¶ 27. "`De novo review means that this court uses the same standard that the trial court should have used, and we examine the evidence to determine whether as a matter of law no genuine issues exist for trial.'" Id., quoting Brewer v. Cleveland City Schools (1997), 122 Ohio App.3d 378, 701 N.E.2d 1023, citing Dupler v. Mansfield Journal Co., Inc. (1980), 64 Ohio St.2d 116, 119-120, 18 O.O.3d 354, 413 N.E.2d 1187.

{¶11} Summary judgment is proper when the movant demonstrates that (1) no genuine issue of material fact exists, (2) the movant is entitled to judgment as a matter of law, and (3) reasonable minds could come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence most strongly construed in its favor. Civ.R. 56; State ex rel. Grady v. State Emp. Relations Bd. (1997), 78 Ohio St.3d 181, 183, 677 N.E.2d 343.

{¶12} Under Civ.R. 56(C), a movant bears the initial burden of informing the trial court of the basis for the motion and identifying those portions of the record demonstrating the absence of a material fact. Dresher v. Burt (1996), 75 Ohio St.3d 280, 293, 662 N.E.2d 264. Once a movant discharges its initial burden, summary judgment is appropriate if the nonmoving party does not respond, by affidavit or as otherwise provided in Civ.R. 56, with specific facts showing that a genuine issue exists for trial. Id. at 293, 662 N.E.2d 264; Vahila v. Hall (1997), 77 Ohio St.3d 421, 430, 674 N.E.2d 1164; Civ.R. 56(E).

{¶13} In his appeal from the trial court's grant of summary judgment in favor of Sprouse, plaintiff asserts that the trial court erred when it concluded that the opinions of his expert witness, Stephen Galli, a licensed architect, were speculative. Plaintiff asserts that Galli's opinion was based upon reasonable inferences from the evidence, not speculation. Sprouse contends that Galli's opinion rests upon speculation, conjecture, and guesswork, and, consequently, it fails to create a genuine issue of material fact.

{¶14} "It has been observed that there is no simple litmus test for determining whether a material issue of fact is presented." Duke v. Sanymetal Products Co. (1972), 31 Ohio App.2d 78, 80-81, 60 O.O.2d 171, 286 N.E.2d 324, citing Am. Mfrs. Mut. Ins. Co. v. Am. Broadcasting-Paramount Theatres, Inc. (C.A.2, 1967), 388 F.2d 272, 279. "In determining whether a `genuine issue' exists, a court must inquire `whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Wall v. Firelands Radiology, Inc. (1995), 106 Ohio App.3d 313, 322, 666 N.E.2d 235, quoting Anderson v. Liberty Lobby, Inc. (1986), 477 U.S. 242, 251-252, 106 S.Ct. 2505, 91 L.Ed.2d 202; Turner v. Turner (1993), 67 Ohio St.3d 337, 617 N.E.2d 1123. A genuine issue of material fact may arise "where the facts presented in the moving papers are uncertain or indefinite; in other words, the picture that is painted in the moving papers either is clear, but incomplete, or is obscured by imprecise facts." Duke, 31 Ohio App.2d at 81, 60 O.O.2d 171, 286 N.E.2d 324, citing Braniff v. Jackson Ave. Gretna Ferry, Inc. (C.A.5, 1960), 280 F.2d 523, 526-528.

{¶15} A vital material issue in this case is whether a drywall installer removed braces from the basement stairs while installing drywall in the basement stairwell, thereby allegedly proximately causing the basement stairs to fail when plaintiff ascended the stairs. According to plaintiff's theory, during drywall installation, a drywall installer would have been required to cut around the braces and later repair the drywall or, alternatively, remove some braces before installing the drywall. Plaintiff theorizes that an absence of drywall repair suggests that braces were removed during drywall installation.

{¶16} "Evid.R. 702 permits experts to testify as to their opinion, and even their opinion as to the ultimate issue under Evid.R. 704. Evid.R. 703 and 705, however, require that the expert establish the basis from which they draw the inferences for their expert opinion." Estate of Holley v. Am. Family Life Assur. Co. of Columbus, Pickaway App. No. 04CA5, 2005-Ohio-2281, 2005 WL 1097799, at ¶24; see, also, Evid.R. 703 and 705. Furthermore, "an expert witness may have an opinion based on inferences drawn from facts as provided for in Evid.R. 703." Estate of Holley, at ¶25. However, an expert witness cannot reach a conclusion where one inference is based upon another inference. Id.

{¶17} In Donaldson v. N. Trading Co. (1992), 82 Ohio App.3d 476, 612 N.E.2d 754, an appeal from a directed verdict, this court stated:

Though widely denounced by both courts and legal commentators, the rule prohibiting the stacking of one inference upon another is still recognized in Ohio. Nevertheless, the rule has very limited application. It prohibits only the drawing of one inference solely and entirely from another inference, where that inference is unsupported by any additional facts or inferences drawn from other facts. But the rule does not forbid the use of parallel inferences in combination with additional facts. Nor does it prohibit the drawing of multiple inferences separately from the same set of facts. Because reasonable inferences drawn from the evidence are an essential element of the deductive reasoning process by which most successful claims are proven, the rule against stacking inferences must be strictly limited to inferences drawn exclusively from other inferences.

(Citations and footnote omitted.) Id. at 481, 612 N.E.2d 754. See, also, State v. Miller (Mar. 7, 1990), Medina App. No. 1822, 1990 WL 27166.

{¶18} Applying Donaldson, the Fourth District Court of Appeals in Blevins v Begley Tree Serv. (Oct. 10, 1997), Adams App. No. 96CA632, considered an appeal from a directed verdict in favor of Begley Tree Service. In Blevins, James Blevins, who was accompanied by his wife and daughter, was traveling in his pickup truck when a large limestone rock entered the driver's open window, striking Blevins in the head, neck, and shoulder...