Kruthaup v. Schoen Builders, LLC

• Court: Ohio Court of Appeals
• Writing for the Court: ZMUDA, J.
• Citation: Kruthaup v. Schoen Builders, LLC, 218 N.E.3d 320 (Ohio App. 2023)
• Docket Number: Court of Appeals No. WD-22-057
• Decision Date: 23 June 2023
• Parties: Joseph KRUTHAUP, Appellant v. SCHOEN BUILDERS, LLC, et al., Appellee

218 N.E.3d 320

Joseph KRUTHAUP, Appellant

v.SCHOEN BUILDERS, LLC, et al., Appellee

Court of Appeals No. WD-22-057

Court of Appeals of Ohio, Sixth District, Wood County.

Decided: June 23, 2023

Eric W. Henry, Cleveland, for appellant.

Shannon J. George, Toledo, for appellee.

DECISION AND JUDGMENT

ZMUDA, J.

I. Introduction

{¶ 1} Appellant, Joseph Kruthaup, appeals the judgment of the Wood County Court of Common Pleas, granting a motion for summary judgment filed by appellee, Schoen Builders, LLC ("Schoen"), and thereby dismissing appellant's negligence claims against Schoen. For the reasons that follow, we reverse.

A. Facts and Procedural Background

{¶ 2} On February 12, 2019, appellant was working with Christopher Tammarine as a drywaller on a home that was being built in Perrysburg, Ohio (the "Fry home"). At the time, Tammarine was hired as an independent subcontractor of Justin St. Clair, who was himself hired as a subcontractor to hang and finish the drywall at the Fry home by Schoen, the general contractor responsible for building the home.

{¶ 3} As appellant was carrying a sheet of drywall along a balcony walkway with an unprotected edge on the second story of the home, he stepped off the edge, fell, and sustained injuries. Consequently, on November 13, 2020, appellant filed a complaint, which he amended on February 12, 2021, asserting claims of negligence and negligence per se and seeking to recover damages from appellees, Schoen Builders, LLC, Justin St. Clair, Christopher Tammarine, and several unknown subcontractors.¹

{¶ 4} On February 12, 2021, Schoen filed its answer, in which it denied any liability arising out of appellant's fall at the Fry home and asserted that appellant was an independent contractor who was responsible for compliance with all safety regulations at the construction site. Thereafter, the matter proceeded through pretrial motion practice and discovery. During discovery, several witnesses were deposed. The following is a summary of the testimony elicited during the depositions.

{¶ 5} Tammarine was the first witness to be deposed. At the outset of the deposition, Tammarine testified that he is a self-employed drywaller who hangs drywall on exposed wood framing and prepares the drywall "to allow the finishers to come in an do their portion." Tammarine indicated that he was regularly hired by St. Clair as an independent contractor to perform such work. In such cases, St. Clair paid Tammarine in cash and did not provide Tammarine with any written instructions or work orders. Tammarine confirmed that this was the arrangement between he and St. Clair concerning the work performed at the Fry home. Moreover, Tammarine testified that all of his communications concerning his work were handled by St. Clair. Tammarine did not get his work orders from Schoen, nor was he ever paid by Schoen. Nonetheless, Tammarine was familiar with Schoen's owner, Aaron Schoen, and Schoen's employees, Matt and Tom Brusoe, having previously worked on Schoen home building projects.

{¶ 6} Tammarine first met appellant in 2016 through a mutual friend. After learning of appellant's construction experience, Tammarine decided to utilize him to assist with drywall hanging projects. The two began working together in 2016, and by the time of appellant's accident, they had worked together on between 10 and 15 jobs. According to Tammarine, he paid appellant in cash on a daily basis.

{¶ 7} On the day of the accident, Tammarine picked appellant up from his residence and the two men traveled together to the Fry home. This was their first day on the Fry home site. Upon arrival to the construction site, they hauled their tools to the second floor of the unfinished home over the course of several trips. Tammarine testified that Schoen did not have a supervisor on site at the Fry home on the day of the accident, and he stated that nobody from Schoen was directing or controlling the drywall work he and appellant were subcontracted to perform.

{¶ 8} Approximately one hour after arriving at the Fry home, Tammarine and appellant began carrying a large sheet of drywall along a balcony on the second floor. The balcony overlooked an open foyer and the first floor below. According to Tammarine, there was no railing installed along the edge of the balcony facing the foyer at the time. Tammarine stated that appellant would have had an opportunity to observe the lack of a railing as he hauled tools into the home from Tammarine's truck upon arrival at the home. However, Tammarine admitted that he never noticed the lack of railing prior to the accident.

{¶ 9} As Tammarine and appellant were carrying the sheet of drywall around a corner toward their ultimate destination, appellant stepped off the unprotected edge and fell to the floor below, a distance of approximately nine feet. Tammarine confirmed that he did not witness the fall, and nobody else was present at the time to witness the fall. When asked whether appellant fell because of the lack of a railing, Tammarine stated that it was a combination of the lack of a railing and a "lack of paying attention on [appellant's] part."

{¶ 10} Tammarine was subsequently asked about whether a railing should have been installed along the balcony at this stage in the construction process. Tammarine responded: "I don't know what the code standards are, to be honest with you. I just noticed them from before hanging drywall that usually builders have them up. After he obviously fell is when I said, ‘Huh, you know, man, I wonder – I wonder why there ain't a railing there.’ "

{¶ 11} Following the fall, Tammarine looked around to see if a temporary railing was lying around in the home, but never found one. He speculated that perhaps the drywall delivery company removed such a railing when they delivered the drywall. However, Tammarine was unaware of whether a railing was ever installed at the Fry home prior to appellant's fall.

{¶ 12} Tammarine confirmed that balconies such as the one off of which appellant fell were typically guarded by a railing by this point in the construction process. Tammarine went on to indicate that no such railing was installed at the Fry home after the accident. Notwithstanding this fact, Tammarine stated that he completed his work at the home without "one bit" of concern for his safety.

{¶ 13} Tammarine was unsure as to whose responsibility it was to erect such a railing. He testified that he never raised the issue of a lack of railing along the balcony in the Fry home with anyone at the job site, because he "didn't think it was really an issue." Later, Tammarine stated that he did not ask anyone to install a railing at the Fry home. Further, he indicated that appellant never asked anyone to install a railing at the Fry home while in his presence.

{¶ 14} Following the fall, Tammarine was hanging drywall in another home and noticed that there was no temporary railing installed on a second-floor open area. With appellant's fall in mind, Tammarine asked Matt, Schoen's project manager, to have a railing installed. Matt agreed, and the railing was promptly installed. Tammarine confirmed that he asked Matt to install the railing because Matt had the power to erect the railing. When asked whether the balcony area from which appellant fell was under Schoen's control, Tammarine stated "that is correct."

{¶ 15} As to the nature of Schoen's oversight of his work, Tammarine stated that Schoen "did not come in and tell me how to hang the drywall." He noted that he brings his own tools to each job and sets his own hours. As to safety on the job, Tammarine stated that, as a drywall hanger "you've kind of got to know I guess your surroundings to make sure you stay safe."

{¶ 16} Matt Brusoe was the next witness to be deposed. He stated that he is a project manager for Schoen and reports directly to Schoen's owner, Aaron Schoen. Matt and Aaron are cousins.

{¶ 17} At the time of the deposition, Matt had worked for Schoen for approximately 15 years. Concerning his job duties, Matt testified that he oversees the project, schedules subcontractors and material deliveries, and responds to questions and concerns from subcontractors and homeowners.

Asked how often he picks up a hammer, Matt responded, "very rarely. * * * I'm not like out there swinging a hammer next to the framers, I'm not out there helping like nail drywall to the walls or anything like that."

{¶ 18} As to Schoen's role in the overall building process, Matt explained: "We are essentially like a main contractor. We subcontract out like all the work for the construction." Matt stated that Schoen utilizes approximately 12 subcontractors during the building process, and generally selects the same subcontractors on every building project.

{¶ 19} Matt explained that Schoen trusts its subcontractors as experienced professionals who know how to complete the work they are hired to do. As such, according to Matt: "It's not like I have to babysit them, make sure they're going to hang the drywall correctly or run the correct wiring or whatever it is. I know from experience that they are doing things that they need to be doing how they need to do it." Matt maintained that Schoen was not the sole decisionmaker as to whether or not to put up a guardrail along the ledge from which appellant fell. However, he later testified that Schoen, as the general contractor, would ultimately decide whether or not to put up the guardrail.

{¶ 20} During his deposition, Matt was asked to examine several photographs of the home that were taken during an earlier stage of the construction process. One of the photographs depicts the unguarded ledge off of which appellant fell. Referring to that photograph, appellant's trial counsel asked Matt whether the image depicted the condition of the ledge on the day appellant fell. Matt responded in the negative, and indicated his belief that Schoen "would have had like a guardrail up on that right side." Thereafter, the following colloquy took place:

Q.

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