Power v. Boles

• Decision Date: 26 March 1996
• Docket Number: No. 95APE05-537,95APE05-537
• Citation: 673 N.E.2d 617,110 Ohio App.3d 29
• Parties: POWER et al. v. BOLES; Buckeye Union Insurance Company et al., Appellants; City of Columbus, Appellee. *
• Court: Ohio Court of Appeals

Page 29

110 Ohio App.3d 29

673 N.E.2d 617

POWER et al. v. BOLES;

Buckeye Union Insurance Company et al., Appellants; City of Columbus, Appellee. ^*

No. 95APE05-537.

Court of Appeals of Ohio,

Tenth District, Franklin County.

Decided March 26, 1996.

Wiles, Doucher, Van Buren & Boyle Co., L.P.A., and Timothy P. McCarthy, Columbus, for appellants.

Ronald J. O'Brien, City Attorney, and Daniel W. Drake, Assistant City Attorney, Columbus, for appellee city of Columbus.

PETREE, Presiding Judge.

Appellants, Buckeye Union Insurance Company and New Hampshire Insurance Company ("appellants"), appeal from a judgment of the Franklin County Court of Common Pleas in favor of appellee, city of Columbus ("city"). Appellants set forth the following assignment of error:

"The trial court erred in granting appellee's motion for summary judgment and finding that no duty was owed to plaintiff's decedent."

We first outline the material facts of this case. In July 1985, preparations were being made for the first annual Columbus 500 Auto Race. The state of Ohio, by and through the Ohio Department of Transportation, had contracted with Columbus Asphalt Paving Company ("Columbus Asphalt"), a private contractor, to ready the streets of Columbus for the race. In June 1985, the necessary resurfacing work on Spring Street had been completed. On July 20, 1985, Columbus city employees David Pasicka and William Pettibone were instructed by their supervisor to prepare a "punch list" indicating which water valve boxes and manhole covers on Spring Street needed to be raised or lowered in order to meet race track specifications. When Pasicka and Pettibone arrived at the site, they met John J. Power, a Columbus Asphalt employee. After a brief discussion, it was learned that Power was performing the same task for his employer and the three men agreed to perform the work jointly.

Spring Street was open to normal traffic on July 20, 1985; it was a clear and dry day. According to the affidavit and deposition testimony in the record, Pasicka, Pettibone and Power proceeded down Spring Street until they observed a water valve box or a manhole cover, whereupon all three men would enter the roadway to take the needed measurements. Pasicka placed a large level over the manhole cover or water valve box and raised it to the level position. Power used a ruler to measure the distance from the surface of the manhole cover to the bottom of the level. Power called off the measurements to Pettibone, who stood in front of the manhole cover or water valve box recording the figures. Pettibone stated that, in addition to making these notations, he was responsible for watching the traffic and waving off approaching vehicles. None of the three men were wearing any reflective clothing, and no safety cones or signs had been placed in the roadway to alert oncoming traffic to the presence of the road workers.

At approximately 9:00 a.m., Power noticed that one of the recorded measurements deviated significantly from the specifications, and he decided to remeasure. Power reentered the roadway followed by Pasicka; Pettibone remained on the sidewalk making additional notations. As Power and Pasicka were taking the measurements, they were struck by a 1981 Chrysler New Yorker driven by Ewing T. Boles. Boles's vehicle was travelling approximately twenty-five m.p.h. when it struck Pasicka and Power. Power sustained serious injuries as a result of being struck by the vehicle; Pasicka was also seriously injured. ¹

The estate of decedent, John J. Power, pursued a wrongful death action against Boles. A third-party complaint was filed by Boles, asserting causes of action for contribution and indemnity against Columbus Asphalt, David Pasicka, William Pettibone and the city. In September 1987, Boles's insurers, appellants, New Hampshire Insurance Company and Buckeye Union Insurance Company, settled the claims of the estate against their insured in the sum of $850,000. By order of the court dated January 20, 1989, appellants were subsequently substituted as third-party plaintiffs to pursue their claims against the city. ²

On September 23, 1994, the city filed a motion for summary judgment, which was granted by the trial court in a decision and judgment entry dated April 7, 1995. Appellants appeal to this court from the judgment of the Franklin County Court of Common Pleas.

Under Civ.R. 56(C), summary judgment is proper when (1) no genuine issue as to any material fact remains 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 such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party. Welco Industries, Inc. v. Applied Cos. (1993), 67 Ohio St.3d 344, 617 N.E.2d 1129. Where a plaintiff fails to produce evidence supporting the essential elements of his claim, summary judgment in favor of defendant is appropriate. Id.; see, also, Leibreich v. A.J. Refrigeration, Inc. (1993), 67 Ohio St.3d 266, 617 N.E.2d 1068.

To establish a cause of action in negligence, plaintiff must show duty, breach of that duty, and damage or injury as a proximate result of the breach. See, e.g., Malone v. Miami Univ. (1993), 89 Ohio App.3d 527, 625 N.E.2d 640; Abram & Tracy, Inc. v. Smith (1993), 88 Ohio App.3d 253, 623 N.E.2d 704. The trial court in this case held that the city owed no duty to appellants, as a matter of law. We agree with the trial court.

Ordinarily, the existence of a legal duty in a negligence action is a question of law for the court, and there is no expressed formula for determining whether a duty exists. See Mussivand v. David (1989), 45 Ohio St.3d 314, 544 N.E.2d 265; Malone, supra. "Legal duty" has been defined as an obligation imposed by law on one person to act for the benefit of another person due to a relationship between them. Berdyck v. Shinde (1993), 66 Ohio St.3d 573, 613 N.E.2d 1014.

In appellants' sole assignment of error, appellants contend that the trial court erred in granting summary judgment in favor of the city as to appellants' contribution claim. The trial court held that the city was not a joint tortfeasor, as a matter of law, since it owed no duty to decedent. We agree.

Appellants first contend that the city owed a duty to decedent under rule of law set forth in Hirschbach v. Cincinnati Gas & Elec. Co. (1983), 6 Ohio St.3d 206, 6 OBR 259, 452 N.E.2d 326. In that case, the Ohio Supreme Court held in the syllabus:

"One who engages the services of an independent contractor, and who actually participates in the job operation performed by such contractor and thereby fails to eliminate a hazard which he, in the exercise of ordinary care, could have eliminated, can be held responsible for the injury or death of an employee of the independent contractor."

In Hirschbach, the court created an exception to the general rule that one who engages an independent contractor to perform an inherently dangerous task is not liable for the injuries sustained by an employee of the independent contractor. Whitelock v. Gilbane Bldg. Co. (1993), 66 Ohio St.3d 594, 597, 613 N.E.2d 1032, 1034. In our view, the rule of law set forth in Hirschbach is inapplicable herein since decedent, in this case, was employed by the subcontractor of the state of Ohio and not the city. Pettibone and Pasicka were not employees of the contractor on this project. Indeed, appellants concede that the only involvement the city had with this project was subsidizing some of the repaving expenses and conducting routine inspections. Thus, the relationship between the city and decedent in this case is not the same type of relationship that existed between the parties in Hirschbach, supra. Under these undisputed facts, Hirschbach does not impose a legal duty upon the city for the protection of decedent.

Moreover, in Bond v. Howard Corp. (1995), 72 Ohio St.3d 332, 650 N.E.2d 416, the court held that the term "actively participated" means "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 exercising a general supervisory role." Id. at 337, 650 N.E.2d at 420-421. See, also, Michaels v. Ford Motor Co. (1995), 72 Ohio St.3d 475, 479, 650 N.E.2d 1352, 1355-1356. In a reply brief filed with this court, appellants acknowledge the lack of any evidence which would permit a finding that the city had the right to control decedent Power's work.

Appellants next contend that a legal duty arises under Restatement of the Law 2d, Torts (1965) 135, Section 323, which provides:

"Negligent Performance of Undertaking to Render Services

"One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other's person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if

"(a) his failure to exercise such care increases the risk of such harm, or

"(b) the harm is suffered because of the other's reliance upon the undertaking."

Although this Restatement section has not been expressly adopted by the Ohio Supreme Court, it has been cited with approval by the Ohio Supreme Court and several courts of appeals of this state. See, e.g., Seley v. G.D. Searle & Co. (1981), 67 Ohio St.2d 192, 202, 21 O.O.3d 121, 127, 423 N.E.2d 831, 839; Briere v. Lathrop Co. (1970), 22 Ohio St.2d 166, 172, 51 O.O.2d 232, 235-236, 258 N.E.2d 597, 602; Wissel v. Ohio High School Athletic Assn. (1992), 78 Ohio App.3d 529, 605 N.E.2d 458; and King v. Lindsay (1993), 87 Ohio App.3d 383, 622 N.E.2d 396.

In Wissel, supra, a high school football player who was rendered a quadriplegic when he tackled an opposing player brought suit against the Ohio High School...