[Cite as Baker v. Coast to Coast Manpower, L.L.C., 2012-Ohio-2840.]




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




JAMEY D. BAKER, ET AL,

        PLAINTIFFS-APPELLANTS,                                    CASE NO. 5-11-36

        v.

COAST TO COAST MANPOWER,
LLC, ET AL,                                                       OPINION

        DEFENDANTS-APPELLEES.




                Appeal from Hancock County Common Pleas Court
                          Trial Court No. 2009-CV-936

                                     Judgment Affirmed

                             Date of Decision: June 25, 2012




APPEARANCES:

        Jonathan M. Ashton and Kevin J. Boissoneault for Appellants

        Todd A. Gray and Brendan M. Richard for Appellees
Case No. 5-11-36


ROGERS, J.

       {¶1} Plaintiffs-Appellants, Jamey Baker (“Baker”) and Corinna Baker

(collectively “the Bakers” or “Plaintiffs”), appeal the judgment of the Court of

Common Pleas of Hancock County, granting summary judgment in favor of

Defendant-Appellee, Best Buy Stores, L.P. (“Best Buy”). On appeal, the Bakers

challenge the trial court’s finding that Best Buy did not owe a duty of care to

Baker and the trial court’s procedural rulings with respect to Best Buy’s

supplementary motion for summary judgment.          Finding that the motion for

summary judgment was properly granted in favor of Best Buy, we affirm the

judgment of the trial court.

       {¶2} On November 3, 2007, Baker was injured at a Best Buy distribution

center in Findlay, Ohio (“distribution center” or “yard”) while he was cutting a

seal on a tractor trailer. At the time, Baker was an employee/truck driver of Coast

to Coast Manpower, LLC (“Coast to Coast”), a trucking company. Coast to Coast

was hired by Best Buy as an independent contractor to perform yard operations as

well as transport shipments to Best Buy locations. At the distribution center,

Coast to Coast was responsible for moving trailers where needed for loading and

unloading shipments and unsealing the trailers.       Baker’s duties at the yard

included driving the tractors as needed for loading and unloading the trailers and

breaking the seals on the trailers. While breaking one of the cable seals on


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November 3, 2007, a piece of the cable struck Baker in his right eye, causing him

to sustain injuries.

        {¶3} On November 9, 2009, Plaintiffs filed a complaint against, inter alia,

Best Buy seeking damages as a result of the defendants’ intentional and negligent

actions and for breach of duty.1 On December 13, 2010, Best Buy filed a motion

for summary judgment, arguing that there was no genuine issue of material fact

regarding Best Buy’s lack of duty to Plaintiffs. Plaintiffs filed their motion and

memorandum in opposition on January 21, 2011, arguing that Best Buy owed a

duty of care to Baker pursuant to the frequenter statute and in light of Best Buy’s

control of the distribution center and provision of equipment used to cut the wire

seals. On January 28, 2011, Best Buy filed a reply arguing that it did not owe

Plaintiffs a duty as it had no control over the actions of its independent contractor,

did not actively participate in Baker’s activity, and that Plaintiffs’ claims were

barred by the assumption of risk doctrine.

        {¶4} On June 13, 2011, Best Buy filed a supplement to its motion for

summary judgment (“Supplemental Motion”), submitting new evidence that a site

inspection of the distribution center had revealed that the cutting implements had

warning labels on them, notifying users of the necessity of wearing safety glasses.

Best Buy argued that this was further evidence of Baker’s actual notice of the

1
  Plaintiffs also listed Coast to Coast Manpower, LLC, Keystone Freight Corp., and Schneider National,
Inc. as defendants in this action, but subsequently filed voluntary notices of dismissal with prejudice of
these defendants.

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Case No. 5-11-36


danger of cutting a taught cable and of his assumption of the risk. Plaintiffs filed a

motion to strike Best Buy’s Supplemental Motion, or in the alternative, requested

leave to file a response (“Motion to Strike”). Best Buy then filed a motion in

opposition to Plaintiffs’ Motion to Strike and for leave to file its Supplemental

Motion. The trial court granted Best Buy’s motion to supplement its pending

motion for summary judgment and denied Plaintiffs’ Motion to Strike, thereby

disallowing Plaintiffs a surreply to the Supplemental Motion. Ultimately, the trial

court granted summary judgment in favor of Best Buy, ruling that reasonable

minds could only conclude that Best Buy did not owe a duty of care to Baker.

       {¶5} It is from this judgment the Bakers appeal, asserting the following

assignments of error for our review.

                            Assignment of Error No. I

       THE TRIAL COURT ERRED WHERE IT DETERMINED
       THAT BEST BUY STORES, L.P. DID NOT OWE A DUTY OF
       CARE TO JAMEY BAKER.

                            Assignment of Error No. II

       THE TRIAL COURT COMMITTED REVERSIBLE ERROR
       WHERE IT PERMITTED BEST BUY STORES, L.P. TO
       SUPPLEMENT ITS MOTION FOR SUMMARY JUDGMENT
       AND COMMITTED ADDITIONAL ERROR WHERE IT DID
       NOT PERMIT JAMEY BAKER TO OPPOSE BEST BUY
       STORES, L.P.’S SUPPLEMENTAL MEMORANDUM.




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                             Assignment of Error No. III

         THE TRIAL COURT ERRED WHERE IT GRANTED
         SUMMARY JUDGMENT IN FAVOR OF BEST BUY
         STORES, L.P.

                               Assignment of Error No. I

         {¶6} In their first assignment of error, Appellants challenge the trial court’s

award of summary judgment to Best Buy, with two main contentions. First,

Appellants challenge the trial court’s determination that Best Buy did not owe a

duty of care to Baker. Specifically, Bakers contend that cutting seals is not

inherently dangerous, and if it is, Best Buy actively participated in the activity.

Further, Appellants argue that primary assumption of the risk as a bar to recovery

is not applicable in this case.

         {¶7} An appellate court reviews a summary judgment order de novo.

Hillyer v. State Farm Mut. Auto. Ins. Co., 131 Ohio App.3d 172, 175 (8th Dist.

1999).     Accordingly, a reviewing court will not reverse an otherwise correct

judgment merely because the lower court utilized different or erroneous reasons as

the basis for its determination. Diamond Wine & Spirits, Inc. v. Dayton

Heidelberg Distr. Co., 148 Ohio App.3d 596, 2002-Ohio-3932, ¶ 25 (3d Dist.),

citing State ex rel. Cassels v. Dayton City School Dist. Bd. of Ed., 69 Ohio St.3d

217, 222 (1994). Summary judgment is appropriate when, looking at the evidence

as a whole: (1) there is no genuine issue as to any material fact, and (2) the


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moving party is entitled to judgment as a matter of law. Civ.R. 56(C).          In

conducting this analysis the court must determine “that reasonable minds can

come to but one conclusion and that conclusion is adverse to the party against

whom the motion for summary judgment is made, [the nonmoving] party being

entitled to have the evidence or stipulation construed most strongly in the

[nonmoving] party’s favor.” Id. If any doubts exist, the issue must be resolved in

favor of the nonmoving party. Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 358-

59 (1992).

       {¶8} The party moving for summary judgment has the initial burden of

producing some evidence which demonstrates the lack of a genuine issue of

material fact on a material element of the nonmoving party’s claim. Dresher v.

Burt, 75 Ohio St.3d 280, 292 (1996). In doing so, the moving party is not required

to produce any affirmative evidence, but must identify those portions of the record

which affirmatively support his or her argument. Id. The nonmoving party must

then rebut with specific facts showing the existence of a genuine triable issue; he

or she may not rest on the mere allegations or denials of his or her pleadings.

Id. at 293; Civ.R. 56(E).

                                  Duty to Baker

       {¶9} Whether a duty exists is normally a question of law. See Wheeling &

L.E.R. Co. v. Harvey, 77 Ohio St. 235 (1907), Mussivand v. David, 45 Ohio St.3d


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314, 318 (1989). R.C. 4101.11, commonly known as Ohio’s frequenter statute,

provides:

      Every employer shall furnish employment which is safe for the
      employees engaged therein, shall furnish a place of employment
      which shall be safe for the employees therein and for frequenters
      thereof, shall furnish and use safety devices and safeguards, shall
      adopt and use methods and processes, follow and obey orders, and
      prescribe hours of labor reasonably adequate to render such
      employment and places of employment safe, and shall do every
      other thing reasonably necessary to protect the life, health, safety,
      and welfare of such employees and frequenters.

      {¶10} The duty owed to frequenters pursuant to this statute “is no more

than a codification of the common-law duty owed by an owner or occupier of

premises to invitees, requiring that the premises be kept in a reasonably safe

condition, and that warning be given of dangers of which he has knowledge.”

Eicher v. U.S. Steel Corp., 32 Ohio St.3d 248, 249 (1987), citing Westwood v.

Thrifty Boy Super Markets, 29 Ohio St.2d 84 (1972).         However, where the

frequenter is the employee of an independent contractor, the duty to frequenters

pursuant to this statute does not extend to hazards which are inherent and

necessarily present in the nature of the work performed. Eicher at 249, Schwarz v.

Gen. Elec. Realty Corp., 163 Ohio St. 354 (1955). With respect to this exception,

the Supreme Court of Ohio has explained:

      Work is inherently dangerous when it creates a peculiar risk of harm
      to others unless special precautions are taken. * * * To fall within
      the inherently-dangerous-work-exception, it is not necessary that the
      work be such that it cannot be done without a risk of harm to others,

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Case No. 5-11-36


       or even that it be such that it involves a high risk of such harm. It is
       sufficient that the work involves a risk, recognizable in advance, of
       physical harm to others, which is inherent in the work itself. Pusey,
       Exr. v. Bator et al., 94 Ohio St.3d 275, 279-280, 2002-Ohio-795,
       citing 2 Restatement of the Law 2d, Torts, Section 427, at 416,
       Section 427, Comment b (1965).

       {¶11} Despite the inherently dangerous nature of the work, if a general

contractor or employer actively participates in the work of the subcontractor, the

employer owes a duty of care to the independent contractor’s employees.

Sopkovich v. Ohio Edison Co., 81 Ohio St.3d 628 (1998), citing Schwarz,

Hirschbach v. Cincinnati Gas & Elec. Co., 6 Ohio St. 3d 206 (1983). The Ohio

Supreme Court has held that “active participation giving rise to a duty of care may

be found to exist where a property owner either directs or exercises control over

the work activities of the independent contractor’s employees, or where the owner

retains or exercises control over a critical variable in the workplace.” Sopkovich at

643.

       {¶12} In Cafferky v. Turner Constr. Co., the general contractor hired an

independent subcontractor to drill and install caisson foundations. 21 Ohio St.3d

110 (1986). Pursuant to its contract, the general contractor retained control over

safety procedures at the project. In one of the caisson holes, the subcontractor

detected methane gas and made certain efforts to dispel the gas. Nevertheless, the

subcontractor allowed two of its employees to enter the hole to burn off, with a

cutting torch, a portion of a twisted metal casing. While in the hole, one of the

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Case No. 5-11-36


employees struck his flint to light a torch. As a result, an explosion occurred and

both employees later died from their injuries. The Ohio Supreme Court found that

although the general contractor retained control over the safety procedures, it had

not actively participated in any action or decision that led to the fatal injuries.

       {¶13} In Sopkovich, the Ohio Supreme Court found that the evidence

supported a finding of active participation based on Ohio Edison’s retention and

exercise of control over a critical aspect of the work environment. 81 Ohio St.3d

628 (1998). In that case, Ohio Edison hired an independent contractor to paint

steel structures at defendant’s electric substation. Ohio Edison retained exclusive

control over the determination of which electrical circuits or lines would be de-

energized at the substation and over the process of activating and de-activating the

lines. While painting certain I-beams that were located thirty to forty feet from the

ground, the independent contractor’s employee received a massive electrical

shock, causing him to fall from the structure to the ground. The court’s holding

regarding whether Ohio Edison owed a duty to the injured employee was two-fold:

first, Ohio Edison had no duty of care relating to its alleged control over plaintiff’s

work activities as a painter, since those activities were directed by the independent

contractor. Second, Ohio Edison was not entitled to summary judgment on the

entire duty of care issue because a duty could have arisen from Ohio Edison’s

retention and exertion of control over a critical variable in the work environment,


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specifically the de-electrification of specific electrical conductors in the work area.

Id. at 653.

          {¶14} In the case at bar, Baker testified that he was employed by Coast to

Coast and had been assigned to work at the Best Buy distribution center as a truck

driver and trailer spotter. Baker’s duties entailed driving trucks around the yard in

order to pull trailers in and out of docks for unloading and also cutting the seals on

the trailers. For instructions on when to move certain trailers, Baker received a

daily list from Best Buy. Best Buy would control when certain trailers should be

moved by activating light signals at the docks. Baker also testified that Best Buy

required everyone in the yard at the distribution center to wear orange vests.

          {¶15} Baker was trained by Jerry Fletcher (“Fletcher”), a lead truck driver

and spotter for Coast to Coast. Fletcher trained Baker on how to cut or break the

cable and bolt seals on the trailers. Fletcher told Baker to turn his head while

cutting the seals with cutters. Baker testified that he was to turn his head so that

the cable does not hit him in the face. During his training he learned that a tight

cable, or one with tension on it, could snap, fly some distance, and strike the

cutter.

          {¶16} Baker testified that he was injured on November 3, 2007 when he

was cutting a taught cable seal. The cable was a braided, quarter-inch cable that

was wound around the trailer three times instead of two, which made the cable


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Case No. 5-11-36


tight. When he cut the cable, a piece of the cable became lodged in his right eye,

causing him severe pain and injury. Baker reported the injury to his supervisor at

Coast to Coast, Casey Vondevander (“Vondevander”).             Baker was sent for

medical treatment and has permanent vision problems due to this incident.

       {¶17} Baker testified that prior to this incident, he had been struck daily in

the arms by cables. This caused him to be concerned about getting struck in the

face or eye. He reported his concerns several times to Fletcher and Vondevander,

both Coast to Coast employees, but never to a Best Buy employee. Baker said that

he was never offered personal safety equipment such as glasses and that he never

requested any such equipment.

       {¶18} Baker testified that Best Buy never trained him in any fashion on

breaking seals or on dock procedures. The cable cutters used to break the seals

were located in the trucks.

       {¶19} During Fletcher’s deposition he testified that he is a lead yard driver

for Coast to Coast. He was responsible for driving trucks at the distribution

center, training other drivers and spotters, and cutting seals. He testified that

Coast to Coast owned the yard trucks and that a pair of safety glasses was in each

truck, but that no one wore them. Fletcher testified that Best Buy provided cutters,

gloves, and glasses. Fletcher stated that he neither wore safety glasses while

cutting the seals prior to Baker’s incident, nor wore them while training others.


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Case No. 5-11-36


Fletcher would, however, turn his head when cutting the seals. He testified that he

informed the trainees that glasses were available if they wanted them.

       {¶20} Fletcher also testified that Best Buy never directed the manner in

which he and the other Coast to Coast employees were to break the seals or

perform other job duties. Rather, Best Buy relied on Coast to Coast to perform all

yard operations.

       {¶21} Joe Radabaugh (“Radabaugh”), a yard driver for Coast to Coast,

testified that he was trained by Fletcher. He testified that Best Buy made gloves

available, but was not aware that there were glasses available for use. Radabaugh

stated that he had been hit by pieces coming lose from a cable seal.

       {¶22} James Steedman (“Steedman”), regional transportation manager for

Best Buy, testified that Best Buy provided orange vests to Coast to Coast

employees. Steedman stated that Best Buy does not get involved in third-party

accidents.

       {¶23} Bryan Fruth, the regional asset protection manager and facilities

manager for Best Buy, testified in his deposition that he is in charge of

maintenance and safety programs and practices. He also testified that Best Buy

never required Coast to Coast employees to wear orange vests but that it would

supply the vests if Coast to Coast requested them. Best Buy did not supply any

other protective equipment to Coast to Coast.


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       {¶24} After reviewing the foregoing evidence, we find that Best Buy did

not owe a duty to Baker. First, cutting a taught cable seal from a trailer is

inherently dangerous, in this particular case. It creates a peculiar risk of harm,

recognizable in advance, to the cutter unless special precautions are taken. See

generally Pusey, 94 Ohio St.3d 275, 2002-Ohio-795.           Baker and Radabaugh

acknowledged this risk when they testified that they had been struck by this type

of seal in the past. The precaution utilized by Fletcher, Baker, and Radabaugh of

turning their heads before cutting the seal is further evidence of this risk. Because

the risk of injury is inherent in this type of work, was recognized in advance of

Baker’s injury, and a reasonable person would recognize the necessity of taking

special precautions to prevent the injury, cutting the taught seal was inherently

dangerous in this case.

       {¶25} Second, we find that there was no active participation on behalf of

Best Buy. The Bakers argue that Best Buy did actively participate in Baker’s

work because it generally controlled the distribution center, it directed the drivers

where and when to move the trailers, it required everyone in the yard to wear

orange vests, and it provided the cutters and safety glasses. Construing the facts

most strongly in favor of Appellants, this argument nonetheless fails for three

reasons.




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       {¶26} First and most importantly, Best Buy did not sufficiently direct or

control Baker’s work activities, specifically the manner in which Baker cut the

cable seal, in order to rise to the level of active participation. See generally

Sopkovich, 81 Ohio St.3d 628. In Hirschbach v. Cincinnati Gas & Elec. Co., the

Ohio Supreme Court held that summary judgment for defendant electric company

was inappropriate where a jury could conclude that it had sole control over the

safety features necessary to eliminate a hazard. 6 Ohio St.3d 206. In that case, the

defendant’s inspector denied the independent contractor’s employees request to

reposition the winch tractor. An employee of the independent contractor was

ultimately injured due to the improper position of the winch tractor. Because

defendant had refused to eliminate the hazard which ultimately led to the

employee’s injuries, and interfered with the mode of the job operation, a jury

could conclude that defendant owed a duty to the independent contractor’s

employee.

       {¶27} In the instant case, Fletcher testified that Best Buy never trained

Coast to Coast truck drivers or controlled the manner in which they cut the seals or

performed other duties, but rather, that Best Buy relied solely on Coast to Coast to

perform yard operations. Additionally, both Radabaugh and Baker testified that

Fletcher, a Coast to Coast employee, trained them on the proper procedure for

cutting cables. Baker testified that if he had any concerns, he discussed them with


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Case No. 5-11-36


Coast to Coast personnel only. Further, there was no evidence that Best Buy

instructed Coast to Coast employees to use the provided equipment or determined

the manner in which the equipment was to be used. Because Best Buy did not

control the manner in which Baker cut the cable seal and neither gave nor denied

permission for a critical act that led to his injury, it did not actively participate or

control the work activities and therefore did not owe a duty to Baker.

       {¶28} Secondly, general control over work activities or the worksite of

independent contractors is insufficient to demonstrate active participation. Active

participation requires more than merely exercising a general supervisory role over

the project, but must rise to the level of directing the activity which resulted in the

injury or giving or denying permission for the critical act that led to the injury in

order to extend a duty from the general contractor to the subcontractor’s

employees. Bond v. Howard Corp., 72 Ohio St.3d 332 (1995), at syllabus, citing

Cafferky, 21 Ohio St.3d 110.

       {¶29} In the instant case, however, Best Buy’s involvement at the

distribution center does not rise to the level of active participation. Its retention

over the trailer logistics at the yard and its requirement that everyone at the yard

wear orange vests do not warrant extending a duty to its independent contractor’s

employee as it did not direct or control the specific activity which led to Baker’s

injuries, e.g. cutting the cable seal.


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Case No. 5-11-36


       {¶30} Thirdly, the provision of materials is insufficient to establish active

participation. See, e.g., Wise v. Zachrich Constr. Co., 3d Dist. No. 4-89-1 (June

13, 1990) (the mere provision of a defective scaffold from which plaintiff fell and

was injured was insufficient to establish active participation), Queen v. Huntley,

4th Dist. No. 02CA756, 2003-Ohio-4554 (without instructing or guiding worker

on how to paint roof, building owner and supervisor did not actively participate in

the work despite having provided the materials), Szotak v. Moraine Country Club,

Inc., 172 Ohio App.3d 34, 2007-Ohio-2974 (2nd Dist.) (provision of equipment

and general instructions on how to complete painting job failed to establish active

participation where injuries were caused due to the placement of the ladder).

       {¶31} In the case sub judice, Appellants argue that Best Buy’s provision of

cable cutters, safety glasses, and orange safety vests establishes its active

participation. Viewing the evidence most favorably to Appellants and assuming

that Best Buy did provide the cable cutters, glasses, and vests to Coast to Coast

employees, we nonetheless find that the provision of materials alone is insufficient

to establish active participation. Because Best Buy did not control nor gave or

denied permission for the activity which resulted in the injury, the cutting of the

cable seals, there was no active participation on behalf of Best Buy and thus no

duty owed to Baker.




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      {¶32} Having found that Best Buy does not owe Baker a duty of care, the

issue of whether primary assumption of the risk is available and if so, whether

Baker assumed the risk is moot and we decline to address it.

      {¶33} Accordingly, we overrule Plaintiffs’ first assignment of error.

                           Assignment of Error No. II

      {¶34} In their second assignment of error, Appellants argue that the trial

court committed reversible error by granting Best Buy’s motion to supplement its

motion for summary judgment and by denying Plaintiffs’ Motion to Strike.

Specifically, Plaintiffs argue that in the Supplemental Motion, Best Buy submitted

new evidence and a new argument in support of summary judgment. Plaintiffs

argue that without the ability to respond, they were subjected to “summary

judgment by ambush.” Appellant’s Reply Brief, p. 7. We disagree.

      {¶35} It is well-established that a party moving for summary judgment

must expressly delineate each basis on which it seeks summary judgment in its

motion so as to provide the opposing party a meaningful opportunity to respond.

Buren v. Karrington Health, Inc., 10th Dist. No. 00AP-1414, 2002-Ohio-206,

citing State ex rel. Coulverson v. Ohio Adult Parole Auth., 62 Ohio St.3d 12, 14

(1991).   The danger in allowing a new argument to be asserted in a reply or a

supplemental motion is that the opposing party does not have an opportunity to

respond, Lawson v. Mahoning Cty. Mental Health Bd., 7th Dist. No. 10 MA 23,


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2010-Ohio-6389, ¶ 50, citing Buren, and may be subjected to summary judgment

by ambush. See, e.g., Smith v. Ray Esser & Sons, Inc., 9th Dist. No. 10CA009798,

2011-Ohio-1529 (reversible error to grant summary judgment based solely on

arguments raised in the reply brief), Lawson at ¶ 51, citing Internatl. Fid. Ins. Co.

v.   TC   Architects,   Inc., 9th App. Dist.      No. 23112, 2006-Ohio-4869, ¶

11, citing Collins v. Emro Marketing, Co., 10th Dist. No. 98AP-1014 (May 11,

1999). Therefore, when a new argument is raised in a reply or supplemental

motion for summary judgment, the proper procedure is to strike the reply or

supplemental motion or, alternatively, to allow the opposing party to file a

surreply. Smith at ¶ 15, citing Lawson at ¶ 50-51.

       {¶36} In the instant case, the trial court granted Best Buy’s motion for leave

to file its Supplemental Motion and denied Bakers’ Motion to Strike. In its

original motion for summary judgment, Best Buy argued that there was no

genuine issue of material fact that it did not owe a duty of care to Baker since 1)

Baker had actual knowledge of the hazard, 2) it did not actively participate in

Baker’s job or control the manner in which he cut the cables, and 3) Baker

assumed the risk. In its Supplemental Motion, Best Buy argued that Baker had

actual notice of the risk of being struck in the eye as all the bolt cutters contained

the following warning: “WARNING PROTECT YOURSELF AND OTHERS

WHEN CUTTING WEAR SAFETY GLASSES” and all cable cutters contained


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Case No. 5-11-36


the warning: “WARNING: METAL FLIES WHEN CUT WEAR SAFETY

GLASSES.” Defendant’s Supplemental Motion, Docket No. 76. These warnings

were discovered by Best Buy’s expert while he performed a site inspection of the

distribution center in May 2011. An affidavit of Jerry Fletcher describing the

warning labels was attached to the Supplemental Motion. Best Buy argued that

these labels evidence that Baker was explicitly warned of the very risk that caused

his injury. It then requested that its motion for summary judgment “be granted in

its entirety based on the evidence and law presented in the original [m]otion for

[s]ummary [j]udgment. This new evidence of warning adds additional force to the

original arguments and raises no new issues of law.” Id. at p. 2.

       {¶37} In its Motion to Strike and memorandum in support, the Bakers

argued that there was no legal basis to file a Supplemental Motion, or

alternatively, that the new evidence, if deemed credible, demonstrates a genuine

issue of material fact and the motion for summary judgment should be denied. On

appeal, the Bakers argue that they were subject to summary judgment by ambush,

and that it was reversible error to grant summary judgment on grounds not

specified in the motion for summary judgment without allowing them an

opportunity to respond. They also contest the legitimacy of the new evidence

presented in the Supplemental Motion.




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       {¶38} We find that the trial court committed error in granting Best Buy’s

motion for leave to file its Supplemental Motion, which presented new evidence,

while denying Appellants’ Motion to Strike and an opportunity to respond. We

hold, however, that this was harmless error as the trial court did not rely on or cite

to the evidence of the warning labels in support of its finding that “reasonable

minds could only conclude that Best Buy did not have a duty toward the plaintiff

Jamey Baker * * * and that Best Buy’s motion for summary judgment should be

granted.” Decision and Judgment Entry, Docket No. 85. Because the trial court

granted summary judgment on the arguments made in the original motion for

summary judgment, to which Appellants filed a response, and not on any new

arguments or evidence in the Supplemental Motion, Appellants were not subject to

summary judgment by ambush.

       {¶39} Accordingly, we overrule Appellants’ second assignment of error.

                            Assignment of Error No. III

       {¶40} In their third assignment of error, Appellants argue that the trial court

impermissibly weighed the evidence and found that Best Buy did provide safety

glasses to Coast to Coast employees. In doing so, Appellants argue that the trial

court directly rejected Radabaugh’s testimony that safety glasses were not

available.




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       {¶41} In light of our resolution of the first assignment of error that Best

Buy was entitled to summary judgment, Appellants’ third assignment of error is

moot and we decline to address it. App.R. 12(A)(1)(c).

       {¶42} Having found no error prejudicial to Appellants herein, in the

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

                                                               Judgment Affirmed

SHAW, P.J., concurs in Judgment Only.

WILLAMOWSKI, J., concurs.

/jlr




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