Fleming v. Aas Serv., Inc.

• Decision Date: 01 August 2008
• Docket Number: No. 2007-P-0071.,2007-P-0071.
• Citation: 2008 Ohio 3908,896 N.E.2d 175,177 Ohio App.3d 778
• Parties: FLEMING et al., Appellants, v. AAS SERVICE, INC. et al., Appellees.
• Court: Ohio Court of Appeals

896 N.E.2d 175

177 Ohio App.3d 778

2008-Ohio-3908

FLEMING et al., Appellants, v. AAS SERVICE, INC. et al., Appellees.

No. 2007-P-0071.

Court of Appeals of Ohio, Eleventh District, Portage County.

Decided August 1, 2008.

James J. Gutbrod, Akron, for appellants.

Kristen E. Campbell and Hans Nilges, Canton, for appellees AAS Service, Inc. and Urs Schneeberger.

John V. Rasmussen, for appellees Mr. and Mrs. Keith Mamajek.

CYNTHIA WESTCOTT RICE, Judge.

{¶ 1} Appellants, William A. Fleming and others, appeal from the decision of the Portage County Court of Common Pleas granting summary judgment to appellees, AAS Service, Inc. and others. For the reasons discussed below, we affirm in part, reverse in part, and remand the matter for further proceedings.

{¶ 2} Beginning in 2002, appellant William Fleming started as a part-time employee of appellee A.A.S. Service, Inc. as a subcontractor assisting with painting jobs. In 2003, Fleming became a full-time employee assisting with, inter alia, chimney cleaning and repair. Fleming had no prior experience with chimneys but was given "on the job" training by appellee Urs Schneeberger, the owner and employee of AAS. In July 2005, AAS, through Schneeberger and Fleming, visited the one-story home of Keith and Shannon Mamajek to examine their chimney and provide an estimate for its repair. The Mamajeks subsequently signed a contract with AAS for the repair work.

{¶ 3} Schneeberger and Fleming arrived at the Mamajek home at approximately 8:00 a.m. on August 9, 2005. They worked on the chimney for several hours without incident. After finishing the chimney repairs, Fleming commenced cleaning the roof top. He was the only person on the roof during the cleaning process. While cleaning, Fleming had rinsed the roof with a water hose and had placed larger pieces of mortar and other debris in a 3-5 gallon bucket, which also contained flashing seal.

{¶ 4} While he was completing the cleaning process, Fleming noticed the bucket beginning to slide down the slope of the roof. He testified that at the time, the roof was dry and clear of debris. Fleming was unable to explain why the bucket began its descent; however, he testified that Schneeberger explicitly advised him never to chase any equipment or tool from a roof. If equipment begins to fall, "[i]t happens, but you just don't go after it. You let it fall, go down and pick it up. If it's broke, it's just broke. Better it than you is the philosophy that I was taught from [Schneeberger]." Fleming even acknowledged in his complaint that "the cardinal rule when working on a roof is not to chase a tool that slides off the roof."

{¶ 5} Despite Schneeberger's explicit training and instructions, Fleming darted after the bucket "at a full run." He testified that he had heard voices from below and was concerned that the falling debris would fall and strike one of the Mamajeks, who had been outside in their backyard. As he pursued the bucket, he dodged a vent stack on the roof and swatted at the bucket to change its direction. At this point, however, Fleming had reached the roof line and, rather than attempt to stop, decided to leap off the edge of the roof and attempt to land safely in the grass. Unfortunately, Fleming landed on the Mamajeks' concrete driveway, injuring his leg and foot. Although the bucket tumbled off the roof with Fleming, the Mamajeks were not harmed. In fact, Shannon Mamajek testified that she and her two daughters were between 18 and 20 feet from the roof at the time of the incident. Fleming repeatedly testified that he did not fall from the roof but, rather, jumped of his own free will, and at no point did Schneeberger advise him to act as he did.

{¶ 6} On May 15, 2006, appellants filed their complaint in the Cuyahoga County Court of Common Pleas alleging negligence against the Mamajeks, intentional tortious conduct on behalf of AAS and Schneeberger, and loss of consortium. After filing their answer, the cause was transferred to the Portage County Court of Common Pleas. On December 22, 2006, the Mamajeks filed their motion for summary judgment to which appellants responded on January 17, 2007. On March 19, 2007, AAS and Schneeberger filed their motion for summary judgment, to which appellants duly responded. On March 21, 2007, the trial court granted summary judgment in the Mamajeks' favor. Later, on July 12, 2007, the trial court awarded summary judgment in AAS's and Schneeberger's favor. Appellants filed a timely appeal and now assign three errors for our review.

{¶ 7} Appellant's first assignment of error alleges:

{¶ 8} "The trial court erred in granting summary judgment to Keith and Shannon Mamajek."

{¶ 9} We review a trial court's decision to grant summary judgment de novo. Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105, 671 N.E.2d 241. Summary judgment is appropriate under Civ.R. 56(C) when (1) there is no genuine issue of material fact remaining to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing the evidence in favor of the nonmoving party, that conclusion favors the moving party. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O.3d 466, 364 N.E.2d 267.

{¶ 10} The moving party bears the initial burden of providing the trial court a basis for the motion and is required to identify portions of the record demonstrating the absence of genuine issues of material fact pertaining to the nonmoving party's claim. Dresher v. Burt (1996), 75 Ohio St.3d 280, 293, 662 N.E.2d 264. The burden then shifts to the nonmoving party to set forth specific facts that would establish a genuine issue for trial. Id. The moving party cannot discharge its initial burden under Civ.R. 56 simply by making a blank assertion that the nonmoving party has no evidence to prove its case but must be able to specifically point to some evidence of the type listed in Civ.R. 56(C). Dresher, supra. Similarly, the nonmoving party may not rest on conclusory allegations or denials contained in the pleadings; rather, he or she must submit evidentiary material sufficient to create a genuine dispute over material facts at issue. Civ.R. 56(E); see also Dresher.

{¶ 11} To determine whether a genuine issue exists, a reviewing court must determine whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must necessarily prevail as a matter of law. Spatar v. Avon Oaks Ballroom, 11th Dist. No. 2001-T-0059, 2002-Ohio-2443, 2002 WL 1012597, at ¶ 16, citing Turner v. Turner (1993), 67 Ohio St.3d 337, 340, 617 N.E.2d 1123. "As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc. (1986), 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202.

{¶ 12} Under their first assignment of error, appellants argue that Keith and Shannon Mamajek, the owners of the home off which Fleming leapt, were negligent in creating a dangerous condition when Mrs. Mamajek remained in her backyard with her children while Fleming was on their roof repairing the chimney. Appellant contends, "With the grinding of the mortar and debris flying everywhere, along with the presence of the ladder, by being in the backyard the Mamajeks were in harm's way." We disagree with appellants' argument.

{¶ 13} To defeat the Mamajeks' motion for summary judgment, it was necessary for appellants to identify a duty owed them by the Mamajeks that was breached. Fuehrer v. Westerville City School Dist. Bd. of Edn. (1991), 61 Ohio St.3d 201, 204, 574 N.E.2d 448. In Michaels v. Ford Motor Co. (1995), 72 Ohio St.3d 475, 478, 650 N.E.2d 1352, the Supreme Court of Ohio underscored that an owner of property on which construction is taking place may only be held liable for the injuries of an independent contractor's employees if the owner actively participates in the details of a contractor's work, e.g., where "the owner `interfered with the mode of the job operation,' `actually participated in the job operation by dictating the manner and mode in which the * * * job was to be performed,' and `had sole control over the safety features necessary to eliminate the hazard.'" (Emphasis sic.) Id., quoting, Hirschbach v. Cincinnati Gas & Elec. Co. (1983), 6 Ohio St.3d 206, 208, 6 OBR 259, 452 N.E.2d 326. The phrase "actively participates" has been defined as directing the activity that resulted in the injury and/or giving or denying permission for the critical acts that led to the employee's injury as opposed to merely exercising a general supervisory role over the project. Bond v. Howard Corp. (1995), 72 Ohio St.3d 332, 337, 650 N.E.2d 416.

{¶ 14} Appellants assert that a genuine issue of material fact exists in this case to the extent that the Mamajeks were "in their backyard" when Fleming's injury occurred. Appellants allege that Fleming's actions leading to his injuries were undertaken pursuant to the rescue doctrine, and as a result, there remain triable issues as to whether the Mamajeks were comparatively negligent for the injuries.

{¶ 15} First, there is no evidence in the record indicating that the Mamajeks "actively participated" in the construction job so as to impose a duty of reasonable care upon them. Even if Mrs. Mamajek and her children had been in the backyard at the time of Fleming's injury, they were not directing the manner in which he was cleaning the roof. The record simply indicates that the Mamajeks hired AAS to repair their chimney and allowed it to do its job in a manner it saw appropriate. From these facts, it would be difficult to conclude the Mamajeks were engaging in even a "general" or "passive" supervisory role. The Mamajeks did not interfere with the...