[Cite as Collias v. Redburn, 2012-Ohio-2128.]




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




WILLIAM JAMES COLLIAS,

        PLAINTIFF-APPELLANT,                             CASE NO. 16-11-10

        v.

RON REDBURN, ET AL.,                                     OPINION

        DEFENDANTS-APPELLEES.




                Appeal from Wyandot County Common Pleas Court
                           Trial Court No. 09-CV-0071

                                     Judgment Affirmed

                             Date of Decision: May 14, 2012




APPEARANCES:

        Shane M. Leuthold for Appellant

        John A. Fiocca, Jr. for Appellee, John Butcher

        Ronald Redburn, Appellee

        Larry P. Meyer for Appellee, Wyandot Co. Agricultural Society
Case No. 16-11-10


WILLAMOWSKI, J.

       {¶1} Plaintiff-Appellant, William James Collias (“Collias”), appeals the

judgment of the Wyandot County Court of Common Pleas granting summary

judgment in favor of Defendant-Appellee, Wyandot County Agricultural Society

(“the WCAS”), and also dismissing Collias’ claims against Defendant-Appellee,

John Butcher (“Butcher”). On appeal, Collias contends that the trial court erred in

granting summary judgment in favor of the WCAS on the basis of immunity.

Collias also claims that the trial court should not have dismissed his claims against

Butcher for Collias’ failure to respond to discovery and his failure to substitute

Butcher’s Estate pursuant to Civ.R. 25. For the reasons set forth below, the

judgment is affirmed.

       {¶2} On April 14, 2009, Collias filed this current action, claiming that he

suffered personal injury when he was a vendor at the Wyandot County Fair in

September of 2005. Collias alleges that he received an electrical shock due to

improper electrical connections when he opened the door to his trailer at the

fairgrounds. As a result of this shock, Collias maintains that he suffered severe

and debilitating injuries.

       {¶3} In September of 2005, Collias set up his vendor’s trailer at the

Wyandot County Fair in Upper Sandusky, Ohio.            Butcher was an electrician

working at the fair and he connected Collias’ trailer to the electrical panel/power


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source. Butcher also connected the trailer of another vendor, Defendant Ron

Redburn (“Redburn”), to the same electrical source. However, Collias alleges that

Redburn’s trailer’s electrical system was improperly wired and, as a result, when it

was connected to the electrical panel it “energized” Collias’ trailer causing it to

shock anyone or anything that touched it. This problem was discovered when

Collias’ dog and another worker received strong electrical shocks. The trailers

were then disconnected, and the problem was investigated.

        {¶4} Collias claims that Redburn’s trailer was again hooked up to the

electrical control panel the following day. However, the problem apparently had

not been remedied and Collias claims it again caused an electric current to flow

through Collias’ trailer. Collias was shocked when he touched the door of his

trailer. The WCAS represents that Collias’ version of the sequence of events is

not supported by the evidence in the record. However, the details pertaining to

these facts are not material to the issues that were before the trial court and that are

in dispute in this appeal.

        {¶5} Collias filed his original complaint against Redburn, Butcher, the

WCAS, and the Wyandot County Fair1 on September 13, 2007, in Wyandot

County Civil Case No. 07-CV-0170, alleging multiple counts of negligence

against the defendants and also requesting declaratory judgment finding that


1
 The WCAS’s attorney represents that there is no such entity as the “Wyandot County Fair,” and that the
WCAS is the only entity involved in operating the fair.

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Butcher was an employee of WCAS and had acted maliciously, in bad faith, and in

a reckless, willful, and wonton manner.                 However, due to Collias’ failure to

comply with the defendants’ discovery requests, the trial court dismissed the

complaint against all defendants, without prejudice, on April 14, 2008.

        {¶6} One year later, on April 14, 2009, Collias again filed his Complaint,

Wyandot County Civil Case No. 09-CV-0071, against the same defendants.2

Butcher and WCAS filed motions to compel discovery and filed motions for

sanctions to dismiss pursuant to Civ.R. 37 if Collias failed to comply with

discovery orders. On September 11, 2009, without conducting a hearing, the trial

court granted WCAS’s motion for sanctions and dismissed Collias’ complaint

against all parties, with prejudice.

        {¶7} Collias appealed this decision. On May 24, 2010, this Court reversed

the judgment of the trial court and remanded for further consideration. See Collias

v. Redburn, et al., 3d Dist. No. 16-09-18, 2010-Ohio-2296 (hereinafter, “Collias

I”). We held that “[a]lthough the trial court could reasonably impose sanctions

pursuant to Civil Rule 37 due to the untimeliness [of Collias’ discovery

responses], a hearing should have been held on the matter before judgment

2
  Defendant Redburn is not a party to this appeal. The case and trial against Redburn has been stayed
pending the outcome of this appeal against the WCAS and Butcher. The WCAS also filed a cross-claim
against Redburn, stating that the terms of the vendor contract obligate Redburn to defend, indemnify and
hold harmless the WCAS. Part of Collias’ complaint against the WCAS contends that the WCAS failed to
ascertain that Redburn had the required insurance before it issued a vendor’s permit to Redburn and
allowed him to locate his trailer on the premises. Redburn’s Answer denies that there was anything wrong
with his equipment and claims that Butcher incorrectly connected the wires. (May 19, 2009 Answer of Ron
Redburn)

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granting dismissal with prejudice was entered since the record indicates that

Collias did eventually comply with the [discovery] order.” Id. at ¶ 8. We further

stated that “[a]lthough this Court is sympathetic to WCAS and Butcher’s

frustration, the record does not contain sufficient evidence that the answers given

were inadequate or the reasons for the prior dismissal.” Id.

        {¶8} Upon remand, a telephone pretrial was held on July 28, 2010, during

which it was disclosed that Butcher had died. Butcher’s attorney then filed a

Notice of Suggestion of Death.3 (Feb. 10, 2011 Judgment Entry, p. 3) On October

26, 2010, pursuant to this Court’s directive, the trial court held a hearing on the

motions for discovery sanctions. (Id., p. 4) Although Collias responded to the

requests for discovery one day prior to the hearing, the defendants claimed there

were still deficiencies. (Id.) At this time, Collias was also reminded of the need to

substitute the Estate of Butcher as a defendant, and his counsel indicated that he

planned to do so “pretty quick.” (Id.) The discovery issues remained unresolved,

and in a November 30, 2010 judgment entry, the trial court advised Collias that he

had ten days in which to respond to the defendants’ allegations of insufficient

responses to their respective discovery requests. (Id., p. 5)

        {¶9} On December 22, 2010, the WCAS moved for summary judgment on

the grounds that it was a political subdivision and entitled to immunity; that


3
  Collias represents that Butcher had died on September 4, 2009, and that his attorney was remiss in not
filing the suggestion of death sooner.

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Butcher was not an employee, but rather an independent contractor whose

methods and means were not under the control of WCAS; and, that Butcher’s

services were performed in a proper manner and there was no evidence that he was

negligent. Collias was granted an extension of time to file his response. After a

non-oral hearing on the motions, the trial court granted summary judgment in

favor of the WCAS on April 15, 2011.

      {¶10} While the motion for summary judgment was pending, on January

18, 2011, Collias finally moved for an Order to substitute the Estate of John

Butcher, deceased, for Defendant John Butcher. Butcher’s counsel filed a motion

opposing the order, stating that it was untimely pursuant to Civ.R. 25(A)(1), and

that the estate could not be substituted because it was already closed and had not

been re-opened.

      {¶11} On February 10, 2011, the trial court filed its judgment entry,

denying Collias’ motion to substitute the Estate of John Butcher, and ruling on the

long-pending motions for the Civ.R. 37 discovery sanctions. The trial court held

that the motion to substitute the estate was untimely and had missed the ninety-day

statutorily imposed requirement.     The trial court also granted the discovery

sanctions pursuant to Civ.R. 37, noting that the history of the case clearly

demonstrated that Collias had been given notice that dismissal was a possibility.

(Feb. 10, 2011 J.E., p. 11)      The trial court found that “[w]hen given the


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opportunity to defend, [Collias] offered no evidence, no legitimate explanations,

nor any reasonable effort on his part to acquire the requested discovery

information.” (Id.) Accordingly, the trial court ordered that Collias’ complaint “is

hereby dismissed as a sanction for failing to once again comply with this Court’s

discovery orders; * * *.) (Id.)

        {¶12} On September 6, 2011, the trial court issued two judgment entries

relating to the February 10, 20114 and the April 15, 2011 judgment entries, noting

that the judgments were final judgments as to fewer than all of the parties, but they

failed to contain the Civil Rule 54(B) certification language. Accordingly, the trial

court ordered the language be added to each of the two judgment entries, stating

that “there is no just reason for delay and the dismissal is a final appealable order.”

        {¶13} It is from these judgments that Collias now appeals, raising the

following three assignments of error for our review.

                                   First Assignment of Error

        The trial court erred when it granted summary judgment in
        favor of Appellee, Wyandot County Agricultural Society, on the
        grounds of immunity.

                                 Second Assignment of Error

        The trial court erred when it granted Defendant/Appellant, John
        Butcher’s motion to dismiss for failing to respond to discovery.


4
  On February 15, 2011, the trial court issued a nunc pro tunc judgment entry to correct two errors on page
11 of its February 10th judgment entry. The nunc pro tunc judgment entry substituted “Civil Rule 25” for
the word “statute,” and it deleted the statement “This is a final appealable Order.”

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                           Third Assignment of Error

       The trial court erred when it granted Appellee, John Butcher’s,
       motion to dismiss for failing to substitute his Estate pursuant to
       Ohio Civil Rule 25.

       First Assignment of Error -- Summary Judgment in Favor of WCAS

       {¶14} In the first assignment of error, Collias claims that the trial court

erred when it granted summary judgment in favor of the WCAS on the basis of

immunity. While Collias acknowledges that the WCAS qualifies as a political

subdivision for purposes of establishing immunity under R.C. 2744.02(A)(1), he

contends that this immunity is abrogated by R.C. 2744.02(B)(2), which renders a

political subdivision liable “for injury, death, or loss to person or property caused

by the negligent performance of acts by their employees with respect to

proprietary functions.” (Appellant’s Br., p. 5) He further argues that even if

Butcher was not an employee, the WCAS cannot be exempted from liability if

Butcher was an independent contractor, because Butcher was negligent, the work

was “inherently dangerous,” and the WCAS could not insulate itself from liability

because of the “non-delegable duty” doctrine. Collias further asserts that the

WCAS is not entitled to immunity because it was negligent for not hiring a chief

inspector to inspect all of the concessions and that the WCAS was negligent for

issuing a permit to a vendor (Redburn) who did not carry the required liability

insurance.


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      {¶15} We review a decision to grant summary judgment de novo. Doe v.

Shaffer, 90 Ohio St.3d 388, 390, 2000-Ohio-186. Summary judgment is proper

where: (1) there is no genuine issue of material fact; (2) the moving party is

entitled to judgment as a matter of law; and (3) reasonable minds can reach but

one conclusion when viewing the evidence in favor of the non-moving party, and

the conclusion is adverse to the non-moving party. Civ.R. 56(C); Grafton v. Ohio

Edison Co., 77 Ohio St.3d 102, 105, 1996-Ohio-336

      {¶16} The Political Subdivision Tort Liability Act, as codified in R.C.

Chapter 2744, requires a three-tiered analysis to determine whether a political

subdivision should be allocated immunity from civil liability. Hubbard v. Canton

City School Bd. of Edn., 97 Ohio St.3d 451, 2002-Ohio-6718, ¶ 10.

      First, R.C. 2744.02(A)(1) sets out a general rule that political
      subdivisions are not liable in damages. In setting out this rule, R.C.
      2744.02(A)(1) classifies the functions of political subdivisions into
      governmental and proprietary functions and states that the general
      rule of immunity is not absolute, but is limited by the provisions of
      R.C. 2744.02(B), which details when a political subdivision is not
      immune. Thus, the relevant point of analysis (the second tier) then
      becomes whether any of the exceptions in R.C. 2744.02(B) apply.
      Furthermore, if any of R.C. 2744.02(B)'s exceptions are found to
      apply, a consideration of the application of R.C. 2744.03 becomes
      relevant, as the third tier of analysis.

Greene Cty. Agricultural Soc. v. Liming, 89 Ohio St.3d 551, 556–557, 2000-Ohio-

486; Monteith v. Delta Productions, Inc., 3d Dist. Nos. 3-07-35, 3-07-36, 2008-

Ohio-1997, ¶ 15. Collias concedes that the WCAS was a political subdivision


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engaged in a governmental or proprietary function, fulfilling the first tier of the

analysis. The statute states that: “[e]xcept as provided in division (B) of this

section, a political subdivision is not liable in damages in a civil action for injury,

death, or loss to person or property allegedly caused by any act or omission of the

political subdivision or an employee of the political subdivision in connection with

a governmental or proprietary function.” R.C. 2744.02(A).

       {¶17} The issue is whether any of R.C. 2744.02(B)’s exceptions to

WCAS’s political subdivision immunity are applicable. The exception under R.C.

2744.02(B)(2) states that “ * * * political subdivisions are liable for injury, death,

or loss to person or property caused by the negligent performance of acts by their

employees with respect to proprietary functions of the political subdivisions.”

(Emphasis added.) Although the parties dispute whether or not Butcher performed

his duties negligently, and whether or not the activities involved “proprietary

functions,” the evidence in the record that Butcher was an independent contractor

was not controverted. Even if we were to assume for the sake of discussion that a

proprietary function was involved, the WCAS has no liability for Butcher because

he was an independent contractor. See Monteith v Delta, supra, at ¶¶ 18 and 25;

Howell v. City of Canton, 5th Dist. No. 2007CCA0-0035, 2008-Ohio-5558, ¶¶ 39-

44; Weldon v. Prairie Township, 10th Dist. No. 10AP-311, 2010-Ohio-5562, ¶ 13.




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       {¶18} Furthermore, Collias’ argument concerning a non-delegable duty is

not relevant to a political subdivision. WCAS’s immunity does not derive from

the common law, but rather from statute – R.C. Chapter 2744. There is no

exception in the application of R.C. Chapter 2744 for an inherently dangerous

activity. The statute must be given its plain meaning. The statutory immunity

exception requires negligence by an employee, and the definition of “employee”

does not include an independent contractor, nor does it hinge on the type of work

performed. See R.C. 2744.01(B). None of the cases cited by Collias involved a

political subdivision. “Nothing in R.C. Chapter 2744 creates an exception when

an independent contractor performs a nondelegable duty.” Trotwood v. S. Cent.

Constr., L.L.C., 192 Ohio App.3d 69, 2011-Ohio-237, ¶ 38 (2d Dist.) Therefore,

the nondelegable-duty doctrine does not abrogate statutory immunity for a

political subdivision. Id.

       {¶19} In addition, the decision to utilize the services of Butcher was an

exercise of judgment and discretion and the WCAS is immune from liability in the

absence of any evidence that the decision was exercised with the characteristics

enumerated in R.C. 2744.03(A)(5). That statute states that a “political subdivision

is immune from liability if the injury, death, or loss to person or property resulted

from the exercise of judgment or discretion in determining whether to acquire, or

how to use, equipment, supplies, materials, personnel, facilities, and other


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resources unless the judgment or discretion was exercised with malicious purpose,

in bad faith, or in a wanton or reckless manner.” Id.

       {¶20} Also, Collias’ complaint that the WCAS was negligent for failing to

hire an inspector under R.C. 1711.11 is misplaced. This section of the code is not

related to electrical inspections. Likewise, Collias’ assertion that the WCAS failed

to obtain proof of Redburn’s liability insurance in not related to the cause of the

alleged injury to Collias. The absence of such insurance does not create a cause of

action in Collias’ favor against the WCAS.

       {¶21} Accordingly, we find that the trial court did not err in granting

summary judgment in favor of WCAS on the basis of its immunity as a political

subdivision. The first assignment of error is overruled.

          Second Assignment of Error – Dismissal Pursuant to Civ.R. 37

       {¶22} Collias’ second assignment of error submits that the trial court erred

when it granted Butcher’s motion to dismiss for failing to respond to discovery

orders pursuant to Civ.R. 37. Collias argues that the facts in the record do not

support the trial court’s sanction; that he did file notices of supplemental discovery

answers on February 9 and 16, 2011; and, that he was making an effort to resolve

the issue of providing the older records and records were “still trickling in” even

after the case was dismissed. Collias contends that he was providing information

and was not being evasive.


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       {¶23} Civ.R. 37(B) provides various sanctions for failure to comply with

discovery, including the harshest sanction of dismissal of the action. Civ.R.

37(B)(2)(c). Ohio courts have long recognized that the interests of justice are

better served when courts address the merits of claims rather than using procedural

devices to resolve pending cases. Moore v. Emmanuel Family Training Center,

Inc., 18 Ohio St.3d 64, 70 (1985).       In determining whether the sanction of

dismissal is warranted, the trial court should consider “the history of the case; all

the facts and circumstances surrounding the noncompliance, including the number

of opportunities and the length of time within which the faulting party had to

comply with the discovery or the order to comply; what efforts, if any, were made

to comply; the ability or inability of the faulting party to comply; and such other

factors as may be appropriate.” Foley v. Nussbaum, 2d Dist. No. 24572, 2011-

Ohio-6701, 31, quoting Russo v. Goodyear Tire & Rubber Co., 36 Ohio App.3d

175, 178 (9th Dist.1987).

       {¶24} Civ.R. 41(B)(1) permits a trial court to dismiss an action for failure

to comply with a court order, but only after notice to plaintiff's counsel.

Hillabrand v. Drypers Corp., 87 Ohio St.3d 517, 518, 2000-Ohio-468. The Ohio

Supreme Court has held that a dismissal with prejudice is proper only “when

counsel has been informed that dismissal is a possibility and has had a reasonable

opportunity to defend against dismissal.” Quonset Hut, Inc. v. Ford Motor Co.,


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80 Ohio St.3d 46 (1997), at the syllabus. “[T]he notice requirement of Civ.R.

41(B)(1) applies to all dismissals with prejudice, including those entered pursuant

to Civ.R. 37(B)(2)(c) for failure to comply with discovery orders.” (Emphasis sic.)

Ohio Furniture Co. v. Mindala, 22 Ohio St.3d 99, 101 (1986). “The purpose of

notice is to ‘provide the party in default an opportunity to explain the default or to

correct it, or to explain why the case should not be dismissed with prejudice.’”

Logsdon v. Nichols, 72 Ohio St.3d 124, 128 1995-Ohio-225 (citations omitted).

       {¶25} A trial court has broad discretion when imposing discovery sanctions

and a reviewing court shall review these rulings only for an abuse of discretion.

Vaught v. Cleveland Clinic Found., 98 Ohio St.3d 485, 2003-Ohio-2181, ¶ 13.

       The discovery rules give the trial court great latitude in crafting
       sanctions to fit discovery abuses. A reviewing court's responsibility
       is merely to review these rulings for an abuse of discretion. “‘The
       term discretion itself involves the idea of choice, of an exercise of
       the will, of a determination made between competing
       considerations.’” State v. Jenkins (1984), 15 Ohio St.3d 164, 222,
       15 OBR 311, 361, 473 N.E.2d 264, 313, quoting Spalding v.
       Spalding (1959), 355 Mich. 382, 384-385, 94 N.W.2d 810, 811-812.
       In order to have an abuse of that choice, the result must be so
       palpably and grossly violative of fact or logic that it evidences not
       the exercise of will but the perversity of will, not the exercise of
       judgment but the defiance of judgment, not the exercise of reason
       but instead passion or bias. Id.

Nakoff v. Fairview Gen. Hosp., 75 Ohio St.3d 254, 256, 1996-Ohio-159.

       {¶26} This case has been pending for many years, during which time

Collias has been served with numerous discovery requests and orders to comply


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with those requests. The trial court has dismissed the case two times, once without

prejudice, and once with prejudice, for Collias’ failure to obey. However, in an

effort to be certain that Collias had proper notice and the benefit of every

opportunity to have his case tried on the merits, we ordered that the trial court

reinstate his case and give him another opportunity to comply with the discovery

requests. See Collias I.

       {¶27} Pursuant to our decision in Collias I, the trial court sent notice that a

hearing on the Motion for Sanctions was to be held on September 1, 2010. Collias

asked for and was granted a continuance and the hearing was rescheduled to

October 26, 2010. The day before the hearing, Collias responded to Butcher’s

request for discovery that had originally been made in May of 2009. Because the

defendants did not have sufficient time to review the materials to determine

whether they were responsive, additional time was provided for such a review, and

then Collias was further granted additional time to respond when it was discovered

that the discovery was still not sufficiently responsive. He again failed to comply.

       {¶28} In its judgment entry, the trial court discussed its findings as follows:

       At the hearing on the Motion for Sanctions/Dismissal, [Collias]
       offered no evidence and only generalized statements that [Collias]
       was unable to obtain the material and was unwilling to explore
       different avenues to obtain the information and documents. The
       alleged incident upon which the Complaint was based occurred in
       2005. Discovery from [Collias] has been sought since 2007.
       [Collias] continues to promise compliance but given the years that


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       have passed without full compliance, the Court may have little
       confidence that it will be forthcoming. * * *

       The court is aware that dismissal is a severe sanction, but it would
       appear appropriate in light of the continued disobedience of [Collias]
       of this Court’s Orders concerning discovery, the lack of effort on the
       part of [Collias] to obtain the requested material and the continued
       delay tactics employed by [Collias]. In light of Defendant Butcher’s
       death, delay has also certainly prejudiced this Defendant’s case.

       [Collias] had no reasonable explanation for his failure to respond to
       the Defendants’ discovery requests on the Court’s Order to Compel.
       [Collias] had no legitimate reason why he waited until the day before
       the October hearing on sanctions to partially comply with the
       discovery requests and the Court’s Order. * * * Further, [Collias’]
       comments that additional information will be forwarded when
       received offers the specter of a discovery process with no end in
       sight.

(Feb. 10, 2011 J.E., pp. 8-10)

       {¶29} Given the lengthy history of this case, it is evident that Collias has

had ample opportunity to respond to the long-standing requests for discovery and

that he has had sufficient notice of the possibility of dismissal if he continued to

ignore the trial court’s orders. We can discern no abuse of discretion in the trial

court’s dismissal of Collias’ case. The second assignment of error is overruled.

                Third Assignment of Error – Substitution of Estate

       {¶30} In the third and final assignment of error, Collias submits that the

trial court erred when it granted Butcher’s motion to dismiss for failing to

substitute his estate pursuant to Civ.R. 25. However, since our decision pertaining

to the second assignment of error, upholding the dismissal of the case against

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Butcher as a discovery sanction pursuant to Civ.R. 37, is dispositive of the case,

this assignment of error is moot and need not be addressed.

       {¶31} Having found no error prejudicial to the Appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                               Judgment Affirmed

PRESTON and ROGERS, J.J., concur.

/jlr




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