[Cite as Peterson v. Natl. Security Assoc., Inc., 2011-Ohio-3902.]



                                                          Court of Claims of Ohio
                                                                             The Ohio Judicial Center
                                                                     65 South Front Street, Third Floor
                                                                                Columbus, OH 43215
                                                                      614.387.9800 or 1.800.824.8263
                                                                                 www.cco.state.oh.us




ROBERT J. PETERSON, et al.

        Plaintiffs

        v.

NATIONAL SECURITY ASSOCIATES, INC., et al.

        Defendants

        and

RANDY MARTYN

        Defendant/Third-Party Plaintiff

        v.

OHIO DEPARTMENT OF PUBLIC SAFETY

        Third-Party Defendant

        Case No. 2011-01569-PR

Judge Joseph T. Clark

DECISION



        {¶ 1} On February 22, 2011, third-party defendant, the Ohio Department of Public
Safety (ODPS), filed a motion to dismiss the third-party complaint pursuant to Civ.R.
12(B)(6) and R.C. 4123.74. On March 8, 2011, defendant/third-party plaintiff, Randy
Martyn, filed a response. On May 17, 2011, the court converted the motion to one
brought pursuant to Civ.R. 56(C).1 On May 31, 2011, Martyn filed a combined response
and motion for additional time to conduct discovery pursuant to Civ.R. 56(F).
       {¶ 2} According to the complaint, plaintiff, Robert Peterson, was seriously injured
in an explosion that occurred during a workplace training exercise conducted by
Martyn.2 Plaintiffs subsequently brought suit against Martyn and other defendants in
the Franklin County Court of Common Pleas.                    Martyn filed a third-party complaint
seeking common law indemnity from ODPS for any damages to plaintiffs for which he
could be held responsible. The filing of the third-party complaint combined with the
subsequent filing of a petition for removal in this court effected the removal of the entire
action to this court pursuant to R.C. 2743.03(E).
       {¶ 3} In the motion for summary judgment, ODPS argues that R.C. 4123.74 bars
Martyn’s action. R.C. 4123.74 provides for immunity of complying employers as follows:
       {¶ 4} “Employers who comply with section 4123.35 of the Revised Code shall not
be liable to respond in damages at common law or by statute for any injury, or
occupational disease, or bodily condition, received or contracted by any employee in the
course of or arising out of his employment, or for any death resulting from such injury,
occupational disease, or bodily condition occurring during the period covered by such
premium so paid into the state insurance fund, or during the interval the employer is a
self-insuring employer, whether or not such injury, occupational disease, bodily
condition, or death is compensable under this chapter.” (Emphasis added.)
       {¶ 5} There is no question but that the injuries sustained by plaintiffs were the
result of a workplace accident and that plaintiff applied for and received workers’
compensation benefits for such injury. The undisputed affidavit testimony of ODPS
Staff Lieutenant Brian W. Landis conclusively establishes that ODPS is a complying
employer within the meaning of the statute.
       {¶ 6} Under Ohio law, a third-party tortfeasor, such as Martyn, has no standing to
bring an indemnification claim against an employer for damages suffered by an
employee in the course of or arising out of his employment where the employer is acting
in compliance with the Ohio workers’ compensation law. Taylor v. Academy Iron &


1
 A motion to dismiss under Civ.R. 12 is not the proper vehicle to test whether R.C. 4123.74 bars an
action. See Hamilton v. East Ohio Gas Co. (1973), 47 Ohio App.2d 55.

2
The singular, plaintiff, shall be used herein in reference to Robert Peterson.
Metal Co. (1988), 36 Ohio St.3d 149. Immunity under the statute extends to cases
where a third-party tortfeasor seeks common law indemnity from the employee’s
employer. Id.
        {¶ 7} Martyn claims that complying employer immunity does not apply in this case
for two reasons. First, Martyn argues that the statute does not immunize ODPS under
the facts as pleaded in the complaint inasmuch as the injuries to plaintiff arose out of
the performance of an ultrahazardous activity for which ODPS is subject to strict liability
under the common law. See Abraham v. BP Exploration & Oil Inc., 149 Ohio App.3d
471, 2002-Ohio-4392, citing Crawford v. National Lead Co. (1989), 784 F.Supp. 439.3
        {¶ 8} For the purposes of this decision, the court will assume that training
performed by ODPS constitutes an ultrahazardous activity and that ODPS would be
subject to strict liability under the common law for any injuries proximately caused by
such activity. However, it is clear from the language used in the statute that immunity
under R.C. 4123.74 is available to a complying employer in the absence of fault.
Indeed, the statute does not specify a level of culpability.4
        {¶ 9} Martyn next argues that complying employer immunity does not apply
where the injuries sustained by the employee were the result of an activity for which the
duty of care is non-delegable. Under the “non-delegable duty” doctrine, “the employer
may delegate the work to an independent contractor, but he cannot delegate the duty.
In other words, the employer is not insulated from liability if the independent contractor’s
negligence results in a breach of the duty.” Pusey v. Bator, 94 Ohio St.3d 275, 279,
2002-Ohio-795.         “Employers are held liable under the traditional nondelegable duty
exception because the nature of the work contracted involves the need for some
specific precaution, such as a railing around an excavation in a sidewalk, or the work
involved is inherently dangerous, such as blasting.” Albain v. Flower Hosp. (1990), 50



3
  Under Ohio law, determining whether a particular activity is ultrahazardous activity such that strict liability
may be imposed depends on a number of factors: the existence of a high degree of risk of harm; the
likelihood that great harm will occur; the inability to eliminate the risk of harm through the exercise of
ordinary care; how common or uncommon the activity is; whether the activity is appropriately conducted
in the location where it is found; and the extent to which the activity's value outweighs the dangerous
nature of the activity. Abraham, supra, at ¶30.
4
  The court notes that complying employers lose their immunity and may be held liable to an employee for
damages where the employee’s injury is the result of the employer’s intentional tort as defined in R.C.
2745.01.
Ohio St.3d 251, 262, overruled in part on other grounds by Clark v. Southview Hosp. &
Family Health Ctr., 68 Ohio St.3d 435, 1994-Ohio-519.
       {¶ 10} Once again, the plain language of the statute controls. Indeed, the statute
prescribes a rule of non-liability, not non-duty.    Thus, immunity under the statute
extends to complying employers who have breached a duty of care owed to their
employees.
       {¶ 11} In short, common law tort principles do not alter the statutory protection
provided to complying employers under workers’ compensation laws.            Rather, the
statute alters common law liabilities and defenses with respect to such employers.
Taylor, supra.
       {¶ 12} For the foregoing reasons, the court finds that there are no genuine issues
of material fact and that ODPS is entitled to judgment as a matter of law. Accordingly,
ODPS’ motion for summary judgment shall be granted. Martyn’s Civ.R. 56(F) motion for
additional time to conduct discovery as to the merits of the third-party complaint is
DENIED as moot.
       {¶ 13} Furthermore, the court finds that the state is no longer a party to this
action. Accordingly, pursuant to R.C. 2743.03(E)(2) this case shall be remanded to the
Franklin County Court of Common Pleas and the original papers shall be returned
thereto.
                                          Court of Claims of Ohio
                                                                   The Ohio Judicial Center
                                                           65 South Front Street, Third Floor
                                                                      Columbus, OH 43215
                                                            614.387.9800 or 1.800.824.8263
                                                                       www.cco.state.oh.us




ROBERT J. PETERSON, et al.

     Plaintiffs

     v.

NATIONAL SECURITY ASSOCIATES, INC., et al.

     Defendants

     and

RANDY MARTYN

     Defendant/Third-Party Plaintiff

     v.

OHIO DEPARTMENT OF PUBLIC SAFETY

     Third-Party Defendant
     Case No. 2011-01569-PR

Judge Joseph T. Clark

JUDGMENT ENTRY




      A non-oral hearing was conducted in this case upon third-party defendant’s
motion for summary judgment.       For the reasons set forth in the decision filed
concurrently herewith, third-party defendant’s motion for summary judgment is
GRANTED and judgment is rendered in favor of third-party defendant. Court costs are
assessed against defendant/third-party plaintiff. The clerk shall serve upon all parties
notice of this judgment and its date of entry upon the journal.
         Furthermore, the court finds that the state is no longer a party to this action.
Accordingly, pursuant to R.C. 2743.03(E)(2) this case is REMANDED to the Franklin
County Court of Common Pleas and the original papers shall be returned thereto.



                                          _____________________________________
                                          JOSEPH T. CLARK
                                          Judge

cc:


Brian M. Zets                                David A. Caborn
300 Spruce Street, Floor One                 765 South High Street
Columbus, Ohio 43215-1173                    Columbus, Ohio 43206

J. C. Ratliff                                Michael R. Szolosi Jr.
Jeff Ratliff                                 2695 Andover Road
Jon L. Jensen Jr.                            Upper Arlington, Ohio 43221-3203
200 West Center Street
Marion, Ohio 43302

Christopher P. Conomy                        Westley M. Phillips
Assistant Attorney General                   90 West Broad Street, Room 200
150 East Gay Street, 18th Floor              Columbus, Ohio 43215
Columbus, Ohio 43215-3130

National Security Associates, Inc.           John Doe
c/o Statutory Agent Tracy L. Sayers
600 Brookstone Centre Parkway
Columbus, Georgia 31904

LP/cmd
Filed July 12, 2011
To S.C. reporter August 2, 2011
