Power v. Boles

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] 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. MiamiUniv. (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. SeeMussivand 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. CincinnatiGas 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 inHirschbach 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 SchoolAthletic Assn. (1992), 78 Ohio App. 3d 529, 605 N.E.2d 458; andKing 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 Athletic Association ("OHSAA"), a nonprofit organization engaged in setting safety standards for athletic equipment. The player's negligence action was based in part on the theory that defendant had violated a duty of care arising under Restatement Section 323. The trial court granted summary judgment in favor of defendant as to this theory. The Hamilton County Court of Appeals held that summary judgment was proper since plaintiff did not present evidence to support a finding of either an increased risk of harm under Section 323(a) or detrimental reliance under Section 323(b). Id., 78 Ohio App.3d at 541, 605 N.E.2d at 465-466.

In Wissel, supra, the court of appeals made the following observations about the liability imposed under Section 323(a):

"Cases interpreting Section 323(a) have made clear that the increase in the risk of harm required is not simply that which occurs when a person fails to do something that he or she reasonably should have. Obviously, the risk of harm to the beneficiary of a service is always greater when the service is performed without due care. Rather, as the court stated inTurbe v. Government of Virgin Islands, Virgin Islands Water Power Auth. (C.A.3, 1991), 938 F.2d 427, 432:

"``[Section] 323(a) applies only when the defendant's actions increased the risk of harm to the plaintiff relative to the risk that would have existed had the defendant never provided the services initially. Put another way, the defendant's negligent performance must somehow put the plaintiff in a worse situation than if the defendant had never begun the performance. As we have noted when interpreting § 324A(a), a companion provision to § 323(a), to prevail under a theory of increased risk of harm a plaintiff must "identify sins of commission rather than omission." Patentas v. United States, 687 F.2d 707, 716 (3d Cir. 1982) * * *.'" Wissel, 78 Ohio App.3d at 540,605 N.E.2d at 465.

In this case, appellants seek to impose liability upon the city based solely on Pettibone's failure to skillfully look out for traffic. However, it is clear that Pettibone's failure to faithfully perform this service put decedent in no worse position than he would have been had the services not been provided. In his deposition, Pettibone testified:

"Q. [MR. FLOOD] When you and Mr. Pasicka first met on Spring Street in the morning before coffee, what time did you arrive there?

"A. About 7:30 I imagine.

"Q. Did you see Mr. Power there at that time?

"A. No.

"Q. You immediately left to go get a cup of coffee?

"A. Right.

"Q. What time did you get back to the site?

"A. About 8:00, just long enough to drink a cup of coffee because we wanted to get done as early as we could.

"Q. What did you first do when you got back to the site?

"A. Well, we run into John down there coming this way. He was doing his own measuring by himself. He said he had started at Fourth Street and we talked and told John that we would compare our notes so we both agree on them and no trouble at all."

This undisputed testimony establishes that decedent was ready and willing to perform the work necessary to complete the punch list on his own, without a lookout, and that he had already completed some of the work before the city employees arrived. Additionally, Keith Power, a Columbus Asphalt representative, confirmed that decedent was the only company employee at the site that day. Given this undisputed testimony, no reasonable jury could find an increased risk of harm to decedent. Wissel,supra. See, also, Great E. Jewelers, Inc. v. Robert E. HainesIns. Agency (May 3, 1988), Franklin App. No. 87AP-849, unreported, 1988 WL 44744.

Similarly, we do not find this to be a case where plaintiff demonstrated any detrimental reliance upon the voluntary undertaking of the city employees. In Wissel, the court noted:

"* * * Courts have generally required that the plaintiff seeking to impose liability under Section 323(b) show actual or affirmative reliance, i.e., reliance ``based on specific actions or representations which cause the persons to forego other alternatives of protecting themselves.' Cracraft v. City of St.Louis Park (Minn. 1979), 279 N.W.2d 801, 807; see, also, Turbe,supra, 938 F.2d at 431. * * *" Wissel, 78 Ohio App.3d at 541,605 N.E.2d at 465.

In Wissel, the court found no evidence that the plaintiff affirmatively relied on the actions or representations of the defendants. Id. at 541, 605 N.E.2d at 465. The court inWissel, supra, noted that plaintiff had not produced any evidence that he would have chosen to wear a safer helmet or that he would have played or tackled any differently in reliance upon the defendants' actions or representations. Id. In this case, as was the case in Wissel, there is no evidence that decedent abandoned any other available opportunities to protect himself against the risk associated with working in the city's streets in reliance on the gratuitously undertaking of the city employees. As stated above, the evidence conclusively establishes that decedent was prepared to take the required measurements by himself, without the aid of a lookout and without the aid of any further safety measures. Consequently, no legal duty on the part of the city arises under Restatement Section 323(b), as a matter of law.

Appellants argue, alternatively, that the city breached a duty it owed to Boles by failing to keep its streets free from nuisance as required by R.C. 723.01. Appellants claim that the city created a nuisance by allowing decedent Power to work on Spring Street without posting signs warning motorists of his presence. We disagree.

Initially, we note that appellants have cited no authority for the proposition that the mere presence of a person in the traveled portion of the roadway constitutes a nuisance. Moreover, it is clear from the evidence in this case that the danger to passing motorists arising from decedent's presence in the roadway, if any, was created by decedent and decedent's employer, not the city. Indeed, there is no evidence in this case that the city had any right to control the manner of decedent's work or that the city had assumed any duty of care owed to decedent by his employer. Moreover, Keith Power acknowledged that Columbus Asphalt had an obligation to supply its employees on this project with all safety equipment and signage required by the Manual of Uniform Traffic Control Devices; the required materials were available to decedent on the date of the accident.

In short, given the unchallenged facts of this case, it is evident that the city was not a joint tortfeasor, as a matter of law. Consequently, the trial court did not err by granting summary judgment in favor of the city as to appellants' claim for contribution. See R.C. 2307.31(A). Appellants' sole assignment of error is hereby overruled.

Having overruled appellants' assignment of error, we hereby affirm the judgment of the Franklin County Court of Common Pleas.

Judgment affirmed.

DESHLER, J., concurs.

LAZARUS, J., dissents.

¹ In November 1987, John J. Power died. The executor of his estate was subsequently substituted as a party plaintiff, pursuant to Civ.R. 25.

² The claims against Pasicka and Pettibone were subsequently dismissed with prejudice.