[Cite as McPherson v. Total Car Express, Inc., 2015-Ohio-5251.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


 FRANK AND KIMBERLY                                   :    JUDGES:
 MCPHERSON                                            :
                                                      :
                                                      :    Hon. W. Scott Gwin, P.J.
        Plaintiffs-Appellants                         :    Hon. John W. Wise, J.
                                                      :    Hon. Patricia A. Delaney, J.
 -vs-                                                 :
                                                      :    Case No. 2015CA00081
                                                      :
 TOTAL CAR EXPRESS, INC., ET AL.                      :
                                                      :
                                                      :
        Defendants-Appellees                          :    OPINION


CHARACTER OF PROCEEDING:                                  Appeal from the Stark County Court of
                                                          Common Pleas, Case No.
                                                          2014CV02190



JUDGMENT:                                                 AFFIRMED




DATE OF JUDGMENT ENTRY:                                   December 14, 2015




APPEARANCES:

 For Plaintiffs-Appellants:                                For Defendants-Appellees:

 STACIE L. ROTH                                            CARI FUSCO EVANS
 236 Third Street, SW                                      3521 Whipple Avenue
 Canton, OH 44702                                          Canton, OH 44718
Stark County, Case No. 2015CA00081                                                        2

Delaney, J.

       {¶1} Plaintiffs-Appellants Frank and Kimberly McPherson appeal the March 31,

2015 judgment entry of the Stark County Court of Common Pleas.

                        FACTS AND PROCEDURAL HISTORY

       {¶2} Defendant-Appellee Total Car Express, Inc. is a business operated out of a

building located in Canton, Ohio. Defendant-Appellee Michael Audi is a principal and

owner of Total Car Express.

       {¶3} In 2011, the building suffered damage to its roof. Audi asked Chad Jenkins

to perform the roof repair, but Jenkins did not have enough workers to complete the job.

Jenkins suggested assistance from Plaintiff-Appellant Frank McPherson, whom he

represented had experience performing work similar to roof replacement. Audi agreed to

pay Jenkins and McPherson on a daily rate for the completion of the roof replacement.

       {¶4} Jenkins alleged he was a laborer hired to perform work on the roof

replacement. Jenkins, McPherson, and two other workers performed all work on the roof.

The initial stage of work on the roof was to tear off the remnants of the roof and to remove

the collapsed roof. The previous roof had been a flat roof, and the intention was to install

a new roof that would match the angle of the other portion of the building. Audi permitted

McPherson and the workers to use his tools and equipment. In order to complete the work

on the roof, the workers used an aluminum extension ladder. McPherson stated during

his deposition that he was familiar with extension ladders and how to use them prior to

his work on the roof. Since the beginning of the work on the roof, McPherson and the

other men on the job used the extension ladder provided by Audi.
Stark County, Case No. 2015CA00081                                                       3


       {¶5} After the roof demolition, there was period of delay. The trusses for the roof

had not been delivered and the work was on hold. On April 5, 2011, McPherson and his

friend, Shawn Venables went to the building believing the trusses were to be delivered.

The trusses were not delivered, so instead McPherson performed cleanup work on the

floor and south side of the building. While at the building, McPherson intended to retrieve

an air compressor hose to use at his personal residence. The air compressor hose was

on the roof of the building.

       {¶6} McPherson needed to use the aluminum extension ladder to gain access to

the roof to get the air compressor hose. The extension ladder was laying on its side in the

building. Venables put the extension ladder against the building. Before climbing the

ladder, McPherson did not check the ladder for safety because it was in place.

       {¶7} McPherson stated he had almost reached the top of the ladder when the

bottom of the ladder slid out from underneath him and fell to the ground. McPherson fell

on top of the ladder as it slid to the ground. McPherson said his arms and legs were

tangled in the ladder as he fell. McPherson suffered injuries in the fall.

       {¶8} McPherson has no independent knowledge of what caused the ladder to

fall. McPherson testified in his deposition that his friend, Shawn Venables looked at the

ladder after the incident and he thought a rubber pad was missing from the foot of the

ladder. After the incident, Audi removed the ladder from the building. Audi kept the ladder

and Audi then gave the ladder to his legal counsel. Audi stated in his affidavit that the

ladder is not missing a rubber pad at the foot.

       {¶9} Plaintiffs-Appellants Frank and Kimberly McPherson filed their original

complaint against Defendants-Appellees Total Car Express, Inc. and Michael Audi in
Stark County, Case No. 2015CA00081                                                        4


2012. McPherson voluntarily dismissed the complaint on October 10, 2013. McPherson

refiled the complaint on September 22, 2014. In the complaint, McPherson alleged claims

for negligence, alteration/spoliation of evidence, and loss of consortium/loss of services.

       {¶10} Total Car Express and Audi filed a motion for summary judgment. In support

of the motion for summary judgment, Total Car Express and Audi submitted the

deposition of McPherson and the affidavit of Audi. Audi attached photographs of the

ladder to his affidavit. McPherson responded to the motion for summary judgment.

McPherson presented his deposition to support his response to the motion for summary

judgment.

       {¶11} On March 31, 2015, the trial court granted the motion for summary

judgment. Relevant to this appeal, the trial court found there was no Civ.R. 56 evidence

to create a genuine issue of material fact that there was a breach of duty owed to

McPherson by Total Car Express or Audi, or that a breach of duty proximately caused

McPherson’s injury.

       {¶12} It is from this decision McPherson now appeals.

                               ASSIGNMENT OF ERROR

       {¶13} McPherson raises one Assignment of Error:

       {¶14} “THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT

WHEN ISSUES OF FACT REMAINED AS TO WHETHER APPELLEE PROVIDED A

DEFECTIVE LADDER TO APPELLANT FOR HIS USE, DIRECTLY AND PROXIMATELY

CAUSING HIS INJURIES AND DAMAGES.”
Stark County, Case No. 2015CA00081                                                        5


                                        ANALYSIS

                                   Standard of Review

        {¶15} McPherson argues in his sole Assignment of Error that the trial court erred

when it granted summary judgment in favor of Total Car Express and Audi. We refer to

Civ.R. 56(C) in reviewing a motion for summary judgment which provides, in pertinent

part:

        Summary judgment shall be rendered forthwith if the pleading, depositions,

        answers to interrogatories, written admissions, affidavits, transcripts of

        evidence in the pending case and written stipulations of fact, if any, timely

        filed in the action, show that there is no genuine issue as to any material

        fact and that the moving party is entitled to judgment as a matter of law.* *

        * A summary judgment shall not be rendered unless it appears from such

        evidence or stipulation and only from the evidence or stipulation, 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, such party being entitled to have the evidence or stipulation

        construed most strongly in the party's favor.

        {¶16} The moving party bears the initial responsibility of informing the trial court

of the basis for the motion, and identifying those portions of the record before the trial

court, which demonstrate the absence of a genuine issue of fact on a material element of

the nonmoving party's claim. Dresher v. Burt, 75 Ohio St.3d 280, 292, 662 N.E.2d 264

(1996). The nonmoving party then has a reciprocal burden of specificity and cannot rest

on the allegations or denials in the pleadings, but must set forth “specific facts” by the
Stark County, Case No. 2015CA00081                                                        6

means listed in Civ.R. 56(C) showing that a “triable issue of fact” exists. Mitseff v.

Wheeler, 38 Ohio St.3d 112, 115, 526 N.E.2d 798, 801 (1988).

       {¶17} Pursuant to the above rule, a trial court may not enter summary judgment if

it appears a material fact is genuinely disputed. Vahila v. Hall, 77 Ohio St.3d 421, 429,

674 N.E.2d 1164 (1997), citing Dresher v. Burt, 75 Ohio St.3d 280, 662 N.E.2d 264

(1996).

                                       Negligence

       {¶18} In McPherson’s appeal, he only argues the trial court erred as to its decision

on his claim for negligence. McPherson does not argue his claim as to spoliation of the

evidence or loss of consortium. In a negligence action, it is fundamental that the plaintiff

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

injury proximately resulting therefrom. Scharver v. Am. Plastics Products, LLC, 5th Dist.

Stark No. 2009 CA 00087, 2010-Ohio-230, ¶ 12 citing Menifee v. Ohio Welding Prod.,

Inc., 15 Ohio St.3d 75, 77, 472 N.E.2d 707 (1984).

       {¶19} McPherson stated that on the day of the incident, he was at the building to

perform cleanup work. He climbed the extension ladder that day, however, to access the

roof and retrieve an air compressor hose for personal use. Climbing and descending a

ladder is inherently dangerous work. Hackney v. Ward, 2nd Dist. Montgomery Nos.

26175, 26233, 2014-Ohio-4413, ¶ 14 citing Alapi v. Colony Roofing, Inc., 8th Dist.

Cuyahoga No. 83755, 2004–Ohio–3288, ¶ 33. In negligence actions involving inherently

dangerous work, the owner of the premises generally does not owe a duty to an

independent contractor or its employees. Wellman v. East Ohio Gas Co., 160 Ohio St.

103, 113 N.E.2d 629 (1953), paragraph two of the syllabus. However, an exception to the
Stark County, Case No. 2015CA00081                                                           7


general rule exists when the owner of the premises “actually” or “actively” participates in

the work being performed by the independent contractor. Hirschbach v. Cincinnati Gas &

Elec. Co., 6 Ohio St.3d 206, 452 N.E.2d 326 (1983), syllabus; Cafferkey v. Turner

Construction Co., 21 Ohio St.3d 110, 488 N.E.2d 189 (1986), syllabus.

       {¶20} The “active participation” doctrine imposes a duty of care upon a property

owner to an independent contractor involved in an inherently dangerous activity on the

property when the owner: “(1) directs the activity resulting in the injury; (2) gives or denies

permission for the critical acts that led to the [independent contractor's] injury; or (3)

retains or exercises control over a critical variable in the workplace that caused the injury.”

Hackney v. Ward, 2nd Dist. Montgomery Nos. 26175, 26233, 2014-Ohio-4413, ¶ 15

quoting Evans v. Dayton Power & Light Co., 4th Dist. Adams No. 03CA763, 2004–Ohio–

2183, ¶ 33. “Absent ‘active participation,’ the general rule of Wellman applies and an

owner cannot be liable in negligence due to the lack of a legal duty owed to the * * *

independent contractor.” Id.

       {¶21} In this case, Total Car Express and/or Audi provided McPherson with the

aluminum extension ladder. The Civ.R. 56 evidence demonstrates, however, that Total

Car Express and/or Audi did not actively participate in McPherson’s work to cause his

injuries. On April 5, 2011, Audi did not direct McPherson’s activities nor did he give or

deny permission for the critical acts that led to McPherson’s injury. On April 5, 2011,

McPherson and Venables went to the building intending to work because they believed

the trusses were to be delivered that day. McPherson stated that Audi informed him that

the trusses were not delivered and he did not know when they would be delivered.

Because no roofing work was to be performed, McPherson cleaned the floor on the south
Stark County, Case No. 2015CA00081                                                     8


side of the building. McPherson testified in his deposition that he wanted to get the air

compressor hose located on the roof for his personal use. Venables placed the ladder.

McPherson did not inspect the ladder before he climbed it. When he almost reached the

top of the ladder, the ladder fell and McPherson hit the ground.

       {¶22} We find that reasonable minds could only conclude that Total Car Express

and Audi did not owe McPherson a duty of care because Audi did not actively participate

in McPherson’s work. Audi provided McPherson with the ladder but he did not control the

ladder. Venables placed the ladder and McPherson did not inspect the ladder before

climbing. McPherson climbed the ladder that day for personal reasons, not for work-

related purposes. Audi did not direct McPherson or give permission to McPherson to

perform any work on the roof that day. Further, even if it could be found that Total Car

Express and Audi owed McPherson a duty of care, McPherson failed to demonstrate a

breach of the duty and that breach proximately caused his injuries.

       {¶23} McPherson claims his injury was caused by a defect in the ladder, but

McPherson has not provided any Civ.R. 56 evidence to create a genuine issue of material

fact as to this claim. The only Civ.R. 56 evidence in this case is the deposition of

McPherson and the affidavit of Audi. On the date of the accident, McPherson testified he

did not place the ladder and he did not inspect the ladder before climbing. McPherson

testified he did not know what caused the ladder to fall, but repeated the statements of

Venables who thought the ladder was missing a rubber pad on the bottom foot of the

ladder. McPherson did not present a deposition or affidavit from Venables; therefore,

Venables’ statements are hearsay. Audi provided photographs of the ladder attached to

his affidavit. Audi averred the ladder was in the same condition that it was in when the
Stark County, Case No. 2015CA00081                                                              9


accident occurred and there were no apparent defects in the ladder, or defects known to

him regarding the ladder.

       {¶24} The moving party carries the initial burden of affirmatively demonstrating

that no genuine issue of material fact remains to be litigated. Mitseff v. Wheeler, 38 Ohio

St.3d 112, 115, 526 N.E.2d 798 (1988). To this end, the movant must be able to point to

evidentiary materials of the type listed in Civ.R. 56(C) that a court is to consider in

rendering summary judgment. Dresher v. Burt, 75 Ohio St.3d 280, 292–293, 662 N.E.2d

264 (1996). Those materials include “the pleadings, depositions, answers to

interrogatories, written admissions, affidavits, transcripts of evidence, and written

stipulations of fact, if any, filed in the action.” Id. at 293, 662 N.E.2d 264; Civ.R. 56(C).

       {¶25} Once the moving party satisfies its burden, the nonmoving party may not

rest upon the mere allegations or denials of the party's pleadings. Dresher at 293, 662

N.E.2d 264; Civ.R. 56(E). Rather, the burden then shifts to the nonmoving party to

respond, with affidavits or as otherwise permitted by Civ.R. 56, setting forth specific facts

that show that there is a genuine issue of material fact for trial. Id. Throughout, the

evidence must be construed in favor of the nonmoving party. Id.

       {¶26} In this case, McPherson has failed to meet his burden under Civ.R. 56 to

demonstrate there are genuine issues of material fact that Total Car Express and Audi

owed McPherson a duty of care or that Total Car Express and Audi breached the duty of

care, proximately causing his injury. Reasonable minds could only conclude that Total

Car Express and Audi were not negligent on April 5, 2011.

       {¶27} McPherson’s sole Assignment of Error is overruled.
Stark County, Case No. 2015CA00081                                                10


                                  CONCLUSION

      {¶28} The judgment of the Stark County Court of Common Pleas is affirmed.

By: Delaney, J.,

Gwin, P.J. and

Wise, J., concur.
