[Cite as Roseberry v. Diepenbrock, 2017-Ohio-8788.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               ALLEN COUNTY




MATTHEW ROSEBERRY,

        PLAINTIFF-APPELLANT,                             CASE NO. 1-17-29

        v.

STEVEN DIEPENBROCK, ET AL.,                              OPINION

        DEFENDANTS-APPELLEES.




                  Appeal from Allen County Common Pleas Court
                           Trial Court No. CV 2016 0328

                                     Judgment Affirmed

                          Date of Decision: December 4, 2017




APPEARANCES:

        Kevin W. Attkisson for Appellant

        J. Alan Smith for Appellee, Steve Diepenbrock
Case No. 1-17-29



SHAW, J.

       {¶1} Plaintiff-appellant, Matthew Roseberry (“Roseberry”), brings this

appeal from the July 10, 2017, judgment of the Allen County Common Pleas Court

granting summary judgment in favor of defendant-appellee, Steven Diepenbrock

(“Diepenbrock”). On appeal, Roseberry argues that the trial court erred in granting

Diepenbrock summary judgment and dismissing Roseberry’s complaint.

                       Relevant Facts and Procedural History

       {¶2} Diepenbrock is the owner of a home at 3280 Ada Road in Lima, Ohio.

Diepenbrock has lived in the home for twenty-five years since it was originally built.

When the home was built, Diepenbrock was involved in overseeing some of the

construction and he also did some of the electrical work with his father-in-law.

       {¶3} In early July of 2014, Diepenbrock and some others were sitting on his

deck and they saw a number of bats, perhaps as many as 50, coming out of the

roof/attic by a “dormer” or “gable vent.” (Diepenbrock Depo. at 8). Diepenbrock

went into the attic to see if he could find any sign of bats living there. The attic was

unfinished and not used for storage space. It was accessible via a ladder that came

out of the ceiling in a closet on the north side of the house. Diepenbrock did not

notice any sign of bats in the attic when he originally checked, so he called

Terminex, a pest control company, to have them inspect his residence.



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       {¶4} Terminex sent Roseberry out to inspect Diepenbrock’s home on July

22, 2014. Roseberry had been employed by Terminex for less than 2 years at the

time, doing inspections and providing quotes for pest control. Those pests included

termites, bugs, ants, bats, rodents and wildlife.

       {¶5} Roseberry arrived at Diepenbrock’s residence at approximately 9 a.m.

on July 22, 2014.       Diepenbrock informed Roseberry about the suspected bat

problem and they walked around the perimeter of the house together to observe the

area where Diepenbrock had seen the bats. Afterward, Roseberry was led to the

attic by Diepenbrock.

       {¶6} At the top of the ladder in the attic was a plywood platform to stand on.

However, the remainder of the attic flooring was not covered, exposing struts,

insulation, and drywall. There was a stretch of wooden planks placed on certain

spots on the floor allowing easier access to various parts of the attic.

       {¶7} Through his employment with Terminex, Roseberry had been trained

in working in attics, dealing with ladders and heights. His training for attics

instructed him to step on the struts and stay on a clear path. He was specifically

instructed to avoid stepping on drywall and he was aware of the risks of falling

through drywall in an attic. He had worked in attics 20-30 times previously.

       {¶8} When Roseberry entered Diepenbrock’s attic, he stood first on the

plywood landing. Diepenbrock indicated to Roseberry that he should walk on the


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wooden plank walkway, that the boards were secure and that Diepenbrock had

walked on them numerous times himself.           Despite Diepenbrock’s assurances,

Roseberry tapped each board as he walked across them, checking for firmness to

make sure they were solid. It was his standard procedure, and Roseberry indicated

that he did not rely on Diepenbrock’s statement that they were secure; rather, he

wanted to verify for himself that the boards were secure, “[b]ecause you never trust

anybody’s true thoughts or what they say.” (Roseberry Depo. at 54).

       {¶9} While Roseberry was walking across one of the boards, he dropped,

falling through the drywall in the ceiling 18 feet to the floor in the living room below

the attic. His arms caught briefly on the struts on the way down. The plank he had

been walking on fell with him, unbroken, to the floor below.

       {¶10} Diepenbrock, who had been standing on the ladder to the attic

observing, went down and called an ambulance for Roseberry. Shortly thereafter,

Roseberry was taken to the hospital and treated for his injuries, which included

multiple broken bones in his left leg and bruising to his arms. The breaks resulted

in multiple surgeries, 12 screws put into his feet and some ongoing issues with

mobility.

       {¶11} After the incident, Diepenbrock had his ceiling repaired, and he put

the plank back in the attic, noting that it was slightly too short (perhaps an inch to

an inch and a half) and that it was the only plank in the attic that was not screwed


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down. Diepenbrock indicated he had no knowledge of the plank being too short, or

that it was not fastened down. He stated he had been in the attic at least 10-20 times

over the years walking over the planks, including twice in July looking for bats

before Roseberry came out to inspect for Terminex.

       {¶12} Diepenbrock indicated that he could not remember whether the

builders of the house put the planks in the attic or whether he had. Roseberry

testified in his deposition that Diepenbrock told him that Diepenbrock had installed

them. Regardless, Diepenbrock indicated that he had no knowledge of any issues

with the plank.

       {¶13} On June 13, 2016, Roseberry filed a complaint against Diepenbrock

and the Bureau of Worker’s Compensation. Roseberry alleged that he was injured

as a result of Diepenbrock’s negligence. Roseberry indicated that the Bureau of

Worker’s Compensation may have an interest in the action due to potentially paying

medical bills, expenses or other benefits to Roseberry; however, the Bureau filed an

answer indicating it had no interest in the litigation as Terminex was a self-insured

employer, and thus any subrogation rights belonged to the employer.

       {¶14} On June 22, 2016, Diepenbrock filed an answer denying negligence.

       {¶15} The matter proceeded through discovery with depositions being taken

of both Diepenbrock and Roseberry. Following the depositions, on May 30, 2017,

Diepenbrock filed a motion for summary judgment, alleging that the activity


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Roseberry was engaged in was a dangerous activity, that he was aware of the

potential dangers of working in an attic, and that Diepenbrock had no superior

knowledge of any of the dangers in the attic.

       {¶16} On June 13, 2017, Roseberry filed a response, claiming that it was

undisputed that Roseberry was an invitee and was owed a duty of ordinary care.

Roseberry indicated that merely operating in an attic was not an open and obvious

danger, and that the plank that fell was certainly not open and obvious. Roseberry

also argued that Diepenbrock was on at least constructive notice of the defect, if not

actual notice, and thus had superior knowledge since he told Roseberry he installed

the planks.

       {¶17} On June 20, 2017, Diepenbrock filed a reply in support of summary

judgment.

       {¶18} On July 10, 2017, the trial court filed a judgment entry analyzing the

issues and ultimately granting summary judgment in favor of Diepenbrock. The

trial court determined that Roseberry was an invitee on the premises and that he was

owed a duty of ordinary care to maintain the premises in a reasonably safe condition

for use, but the owner had “no duty to remedy inherent hazards necessarily present

because of [the] character of work to be done.” (Doc. No. 31) citing Schwarz v. Gen

Elec. Realty Corp, 163 Ohio St. 354 (1995).         The trial court cited authority

indicating that an owner of a premises would not be liable for an injury resulting


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from a danger inherent in a task when the injury was reasonably foreseeable to the

independent contractor. Id. citing Wellman v. East Ohio Gas Co., 160 Ohio St. 103

(1953), at paragraph 2 of the syllabus.

       {¶19} The trial court found that it was undisputed that Roseberry was aware

of the dangers of working in an attic, that it was undisputed that Roseberry tested

each plank before he walked onto it, and that it was undisputed that Roseberry did

not rely on any statements made by Diepenbrock that the planks were secure. Thus

the trial court determined that Diepenbrock should be awarded summary judgment.

       {¶20} The trial court went on to address an additional argument by

Roseberry, wherein Roseberry argued that an exception should apply permitting

liability in this instance if the owner actively participated in the work that was being

done by the independent contractor. The trial court found that Diepenbrock’s

actions of providing Roseberry with a flashlight and leading him to the attic did not

constitute participation.   The trial court thus awarded summary judgment in

Diepenbrock’s favor and dismissed Roseberry’s complaint.

       {¶21} It is from this judgment that Roseberry appeals, asserting the following

assignments of error for our review.

                         Assignment of Error No. 1
       Whether the Trial Court erred by ruling that there was no
       genuine issue of material [fact as to] whether the Appellant was
       engaged in an inherently dangerous activity and sustained the
       Appellee’s Motion for Summary Judgment.


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                           Assignment of Error No. 2
        Whether the Trial Court erred by ruling that there was no
        genuine issue of material fact [as to] whether the Appellee actively
        participated in the activity that resulted in the Appellant’s
        injuries and sustained the Appellee’s Motion for Summary
        Judgment.

        {¶22} As the discussion is interrelated, we elect to address the assignments

of error together.

                       First and Second Assignments of Error

        {¶23} In Roseberry’s first assignment of error, he argues that the trial court

erred by granting Diepenbrock’s motion for summary judgment. Specifically, he

argues that the trial court erred in finding that Roseberry was engaging in a

dangerous activity with open and obvious hazards that precluded liability, and that

the trial court erred in finding that Diepenbrock lacked superior knowledge of the

purported hazard. In Roseberry’s second assignment of error, he argues that the

trial court erred in determining that Diepenbrock did not participate in Roseberry’s

work.

                                 Standard of Review

        {¶24} We review a trial court’s decision on a motion for summary judgment

de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996). Thus, this

Court conducts an independent review of the evidence and arguments that were

before the trial court without deference to the trial court’s decision. Ohio N. Univ.

v. Charles Constr. Servs., Inc., 3d Dist. Hancock No. 5-16-01, 2017-Ohio-258, ¶ 16,

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citing Brown v. Cty. Commrs. of Scioto Cty., 87 Ohio App.3d 704, 711 (4th

Dist.1993) (citation omitted).

       {¶25} Pursuant to Civ.R. 56(C), summary judgment is appropriate only

under the following circumstances: (1) no genuine issue of material fact remains to

be litigated, (2) the moving party is entitled to judgment as a matter of law, and (3)

viewing the evidence most strongly in favor of the nonmoving party, reasonable

minds can come to but one conclusion, that conclusion being adverse to the

nonmoving party. Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 66

(1978). “When seeking summary judgment on grounds that the non-moving party

cannot prove its case, the moving party bears the initial burden of informing the trial

court of the basis for the motion and identifying those portions of the record that

demonstrate the absence of a genuine issue of material fact on an essential element

of the non-moving party’s claims.” Lundeen v. Graff, 10th Dist. Franklin No. 15AP-

32, 2015-Ohio-4462, ¶ 11, citing Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996).

Once the moving party meets its initial burden, the nonmovant must set forth

specific facts demonstrating a genuine issue for trial. Dresher at 293.

                                 Relevant Authority

       {¶26} In this case, Roseberry alleges that Diepenbrock was negligent. “It is

fundamental that in order to establish a cause of action for negligence, the plaintiff

must show (1) the existence of a duty, (2) a breach of duty, and (3) an injury


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proximately resulting therefrom.” Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d

79, 2003-Ohio-2573, ¶ 8, citing Menifee v. Ohio Welding Prod., Inc., 15 Ohio St.3d

75, 77 (1984).

       {¶27} It is undisputed that Roseberry was an “invitee,” and that Diepenbrock

owed the duty of “ ‘exercising ordinary care to maintain the premises in a reasonably

safe condition for use in a manner consistent with the invitation, and to inform the

invitee of hazardous conditions of the premises and activities thereon unknown by

and not obvious to the invitee.’ ” Schwarz v. General Elec. Realty Corp., 163 Ohio

St. 354, 358 (1955), quoting Bosjnak v. Superior Sheet Steel Col., 145 Ohio St. 538

(1945). Nevertheless, an owner is not an insurer of an invitee’s safety and owes no

duty to protect invitees from open and obvious dangers on the property. Strayer v.

Cox, 2d Dist. Miami No. 2015-CA-6, 2015-Ohio-2781, ¶ 30, quoting Blair v.

Vandalia United Methodist Church, 2d Dist. Montgomery No. 24082, 2011-Ohio-

873, ¶ 15.

       {¶28} The Supreme Court of Ohio has held that under the common law of

negligence,

       [w]here an independent contractor undertakes to do work for
       another in the very doing of which there are elements of real or
       potential danger and one of such contractor’s employees is
       injured as an incident to the performance of the work, no liability
       for such injury ordinarily attaches to the one who engaged the
       services of the independent contractor.



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       One who engages an independent contractor to do work for him
       ordinarily owes no duty of protection to the employees of such
       contractor, in connection with the execution of the work, who
       proceeds therewith knowing and appreciating that there is a
       condition of danger surrounding its performance.

Wellman v. East Ohio Gas Co., 160 Ohio St. 103 (1953) at paragraphs 1 and 2 of

syllabus; Szotak v. Moraine Country Club, Inc., 2d Dist Montgomery No. 21618,

2007-Ohio-2974, ¶ 13.

       {¶29} “In other words, owners of premises do not owe a duty of protection

to independent contractors or the employees of independent contractors that they

employ, even when the work being performed is inherently dangerous.” Cracraft

v. Dayton Power & Light Co., 2d Dist. Montgomery No. 26808, 2016-Ohio-3272,

¶ 12, appeal not allowed, 147 Ohio St.3d 1437, citing Lacey v. Sports Award,

Inc., 2d Dist. Montgomery No. 21346, 2006–Ohio–4401, ¶ 23, citing Routzahn v.

Garrison, 2d Dist. Montgomery No. 21190, 2006–Ohio–3652, ¶ 49. “The

independent contractor is presumed to know and appreciate that there is a danger

surrounding the performance of the work it has undertaken.”               Cracraft

citing Szotak at ¶ 13, citing Wellman at paragraph two of the syllabus.

       {¶30} Notably, there is an exception to the rule announced in Wellman,

which Roseberry argues is applicable in this case. In Hirschbach v. Cincinnati Gas

& Elec. Co., 6 Ohio St.3d 206 (1983), the Supreme Court of Ohio held that




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       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.

Hirschbach at syllabus.
                                        Analysis

       {¶31} The vast majority of the facts in this case are undisputed. Roseberry

worked for Terminex and was dispatched to the home of Diepenbrock to investigate

a potential problem with bats. Prior to Roseberry’s arrival, Diepenbrock had been

in the attic twice in July of 2014 to look for evidence of bats. Diepenbrock had been

in his attic a number of times over the years since the home was built, using the

planks that were on the floor to get around. He had no knowledge that one plank

was slightly too small or that it was not fastened down (even assuming the plank

was the reason for Roseberry’s fall).

       {¶32} Roseberry had been trained to work in attics, and he had been trained

regarding the dangers inherent in working in attics. When Roseberry went into

Diepenbrock’s attic, Diepenbrock told him to walk on the planks and that they were

secure.   However, Roseberry stated affirmatively that he did not rely on

Diepenbrock’s statements, and that he checked each plank by tapping his foot on it

before stepping onto it. Then, while traversing the planks, Roseberry fell through

the attic onto the living room floor 18 feet below.


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       {¶33} On appeal, Roseberry first argues that the trial court erred in finding

that he was engaging in work that had real or potential danger. Contrary to this

argument, Roseberry explicitly stated in his deposition that he had been trained in

working in dangerous areas such as attics and that he was aware from his training

that a fall from an attic could result in serious injury or even death. Roseberry was

trained in how to maneuver through an attic, and to avoid stepping on drywall or

insulation. The nature of Roseberry’s activity would fall under work that had real

or potential danger, even by Roseberry’s own admissions. See Strayer v. Cox, 2d

Dist. Miami No. 2015-CA-6, 2015-Ohio-2781, ¶¶ 33-34 (finding that where

plaintiff cut down a limb from a deteriorating tree, danger of deteriorating limb

falling was open and obvious, and plaintiff, given his experience, was in better

position to observe potential defects than owner due to his training and experience);

Detrick v. Heidtman Steel Products, Inc., 677 Fed.Appx. 240 (6th Cir.2017) (“[O]ne

of the reasons individuals are rarely found in attics is due to the dangerous

conditions often present therein. It is likely that an average person would know of

the risks associated with working in an attic[.]”). Working in an unfinished attic

would pose the open and obvious potential danger of falling. Roseberry was aware

of this danger. His argument on this issue is thus not well-taken.

       {¶34} Roseberry next argues that the trial court erred in finding that

Diepenbrock exercised ordinary care in maintaining the premises and that the trial


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court erred in finding that Diepenbrock did not have superior knowledge of any

defect with the plank that fell. While Roseberry may argue that Diepenbrock should

have been aware of a potential problem with one of his planks in his attic, there is

absolutely no evidence that Roseberry was actually aware of any such problem. In

fact, the only evidence indicates that Diepenbrock was entirely unaware of any

issues with the plank in his attic. He had traversed the planks in the attic at least

twice in the month preceding Roseberry’s fall, including just days before

Diepenbrock’s fall, and he did not notice any issues at that time. See Waite v.

Thomas Emery’s Sons, 32 Ohio Law Abs. 521, 32 N.E.2d 764, 765 (1st Dist.1940)

(“The fact that [a plank in an attic] gave way may not be taken in itself as proof that

the [owner] was negligent. Only speculation can present a situation which would

justify conclusion fixing liability upon the defendant.”).

       {¶35} Notwithstanding the fact that there is no evidence whatsoever that

Diepenbrock had any knowledge of any issues with the plank in question, Roseberry

explicitly stated that he did not rely on any assurances made by Diepenbrock that

the planks were stable. Therefore, we fail to see any evidence that Diepenbrock did

not exercise reasonable care or that he breached a duty owed to Roseberry and

Roseberry’s first assignment of error is overruled.

       {¶36} In Roseberry’s second assignment of error, he argues that there was an

exception permitting liability in these circumstances if Diepenbrock, as the


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homeowner, actively participated in the work.          “For purposes of establishing

liability * * * ‘actively participated’ means that the [individual] 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 merely exercising a general supervisory

role over the project.” Bond v. Howard Corp., 72 Ohio St.3d 332 (1995) at syllabus,

quoting Cafferkey v. Turner Constr. Co., 21 Ohio St.3d 110 (1986).

       {¶37} The evidence in the record indicates that Diepenbrock showed

Roseberry around his home and that he showed Roseberry how to access the attic.

Diepenbrock lent Roseberry a powerful flashlight when Roseberry discovered the

batteries were dead in his. Diepenbrock was on the ladder to the attic while

Roseberry was in the attic, and Diepenbrock stated to Roseberry to stay on the

planks in the attic. All of this is very typical of a homeowner showing a problem to

someone coming to fix it or investigate it. None of Diepenbrock’s actions amount

to anything remotely resembling actual participation in the work, even assuming

that such an exception applied in these circumstances. Thus we cannot find that the

trial court erred in awarding summary judgment to Diepenbrock on this issue.

Roseberry’s second assignment of error is therefore overruled.




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                                 Conclusion

       {¶38} For the foregoing reasons Roseberry’s assignments of error are

overruled and the judgment of the Allen County Common Pleas Court is affirmed.

                                                           Judgment Affirmed

PRESTON, P.J. and ZIMMERMAN, J., concur.

/jlr




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