[Cite as Pinkerton v. J&H Reinforcing, 2012-Ohio-1606.]


                            IN THE COURT OF APPEALS OF OHIO
                               FOURTH APPELLATE DISTRICT
                                     SCIOTO COUNTY

CRAIG D. PINKERTON, et al,            :
                                      :
     Plaintiffs-Appellants.           :
                                      :    Case Nos. 10CA3386 &
     v.                               :    10CA3388
                                      :
J&H REINFORCING AND                   :    DECISION AND
STRUCTURAL ERECTORS, INC., et al,     :    JUDGMENT ENTRY
                                      :
     Defendants-Appellees.            :    Filed: April 4, 2012
________________________________________________________________

                                           APPEARANCES:

Michael S. Miller and Craig P. Scott, Volkema Thomas Miller & Scott LPA, Columbus,
Ohio, for Appellants, Craig D. Pinkerton and Melissa McCrary Pinkerton.

Mike Dewine, Ohio Attorney General; Andrew D. Sonnek and Greg A. Goldblatt,
Sonnek & Howard, Ltd., Cincinnati, Ohio for Appellant, Ohio Bureau of Workers’
Compensation.1

David G. Jennings and J. Stephen Teetor, Isaac, Brant, Ledman & Teetor, LLP,
Columbus, Ohio, for Appellee, J&H Reinforcing and Structural Erectors, Inc.

William B. Benson and Mark C. Melko, Wiles, Boyle, Burkholder & Bringardner Co.,
L.P.A., Columbus, Ohio, for Appellee, BBL-Carlton, LLC.
________________________________________________________________

Kline, J.:

{¶1}         Craig D. Pinkerton, Melissa McCrary Pinkerton, and the Ohio Bureau of

Workers’ Compensation (hereinafter the “Workers’ Compensation Bureau”) appeal the

judgment of the Scioto County Court of Common Pleas. The appellants claim that the

negligence of J&H Reinforcing and Structural Erectors, Inc. (hereinafter “J&H

Reinforcing”), and BBL-Carlton, LLC (hereinafter “BBL-Carlton”), contributed to injuries



1
    Richard Cordray was the Ohio Attorney General when this appeal was filed.
Scioto App. Nos. 10CA3386 & 10CA3388                                                    2


that Craig Pinkerton suffered on a construction jobsite. The trial court, however,

granted summary judgment to both J&H Reinforcing and BBL-Carlton.

{¶2}      On appeal, the appellants contend that the trial court should not have granted

summary judgment to either of the appellees. We disagree. As a matter of law, neither

J&H Reinforcing nor BBL-Carlton owed a duty of care to Craig Pinkerton. Furthermore,

we find the following: (1) there are no genuine issues of material fact; (2) both J&H

Reinforcing and BBL-Carlton are entitled to judgment as a matter of law on all of the

appellants’ claims; and (3) reasonable minds can come to just one conclusion as to all

of the appellants’ claims, and that conclusion is adverse to the appellants. Accordingly,

we affirm the judgment of the trial court.

                                             I.

{¶3}      On June 17, 2007, Craig Pinkerton was injured while working on a

construction site at an elementary school. Craig Pinkerton worked for Dixon Electrical,

which was the prime electrical contractor on the project. J&H Reinforcing was the prime

contractor for general trades, and BBL-Carlton was the construction manager.

{¶4}      During the construction project, the various contractors stored equipment in

the mechanical room. To make room for the equipment, somebody removed the double

doors and the mullion from the mechanical room’s doorway. A “mullion” is “a slender

vertical usually nonstructural bar or pier forming a division between * * * doors[.]”

Webster’s Third New International Dictionary, Unabridged (2002). However, after the

doors and the mullion were removed, the “mullion clip” was left exposed in the floor.

This particular mullion clip was a metal bracket, approximately one-to-two inches wide,

and approximately a half-inch high.
Scioto App. Nos. 10CA3386 & 10CA3388                                              3


{¶5}      On the day of the accident, Craig Pinkerton walked through the equipment

room doorway and allegedly tripped over the exposed mullion clip. As a result, his

Achilles tendon was severed.

{¶6}      Because of his injuries, Craig Pinkerton applied for and received

compensation and medical benefits from the Workers’ Compensation Bureau.

{¶7}      On October 23, 2008, Craig and Melissa Pinkerton filed a complaint against

J&H Reinforcing, BBL-Carlton, and various unnamed defendants. The complaint

alleged that, because of the exposed mullion clip, the defendants “negligently created

and/or maintained a dangerous condition[.]” Additionally, Melissa Pinkerton claimed

loss of consortium, and, in later filings, the Workers’ Compensation Bureau asserted

subrogation rights. That is, the Workers’ Compensation Bureau claimed that it was

“entitled to recover [the compensation and medical benefits] paid to or on behalf” of the

Pinkertons. Complaint of New Party Plaintiff Ohio Bureau of Workers’ Compensation.

{¶8}      Despite extensive discovery, it could not be determined who, exactly, had

removed the doors and the mullion. Several witnesses testified that employees of J&H

Reinforcing would have been responsible because J&H Reinforcing was the

independent contractor in charge of doorframes. According to these witnesses, union

rules would have prevented the employees of any other independent contractor from

removing the doors and the mullion. But an employee of BBL-Carlton testified (1) that

J&H Reinforcing was not contractually responsible for removing the doors and the

mullion and (2) that anybody could have done it. Significantly, there was no evidence

that either J&H Reinforcing or BBL-Carlton had directed the activities of Dixon Electrical

or Craig Pinkerton. Furthermore, there was no evidence that either J&H Reinforcing or
Scioto App. Nos. 10CA3386 & 10CA3388                                                4


BBL-Carlton had given permission for the critical acts that led to Craig Pinkerton’s

injuries.

{¶9}        Eventually, in two separate entries, the trial court granted summary judgment

to both J&H Reinforcing and BBL-Carlton. The trial court found, in part, that neither

J&H Reinforcing nor BBL-Carlton had actively participated in the work of Dixon

Electrical or Craig Pinkerton. As a result, the trial court dismissed the complaint of the

plaintiffs and the complaint of the Ohio Bureau of Workers’ Compensation. Four days

later, the trial court filed the same two entries but added Civ.R. 54(B) language (“no just

cause for delay”).

{¶10}       Craig D. Pinkerton, Melissa McCrary Pinkerton, and the Workers’

Compensation Bureau appeal and assert the following three assignments of error: I.

“THE TRIAL COURT ERRED TO THE SUBSTANTIAL PREJUDICE OF PLAINTIFFS-

APPELLANTS IN GRANTING SUMMARY JUDGMENT TO THE DEFENDANT-

APPELLEE J&H REINFORCING AND STRUCTURAL ERECTORS, INC.” II. “THE

TRIAL COURT ERRED TO THE SUBSTANTIAL PREJUDICE OF PLAINTIFFS-

APPELLANTS IN GRANTING SUMMARY JUDGMENT TO THE DEFENDANT-

APPELLEE BBL-CARLTON, L.L.C.” And, III. “THE TRIAL COURT ERRED TO THE

SUBSTANTIAL PREJUDICE OF PLAINTIFFS-APPELLANTS IN FAILING TO GIVE

ANY WEIGHT TO THE DEPOSITION AND AFFIDAVIT TESTIMONY OF RYAN

STEWART.”

{¶11}       The Pinkertons asserted these assignments of error in their appellate brief.

And “[i]n the interest of brevity and [for] the convenience of the Court,” the Workers’

Compensation Bureau adopted the Pinkertons’ assignments of error and issues
Scioto App. Nos. 10CA3386 & 10CA3388                                              5


presented for review. Brief of Appellant Ohio Bureau of Workers’ Compensation at 4.

Therefore, when referring to the appellants collectively, we will use the term

“Pinkertons.”

                                            II.

{¶12}     Before addressing the Pinkertons’ first-and-second assignments of error, we

must note a procedural deficiency. That is, in their appellate brief, the Pinkertons have

failed to separately argue their first-and-second assignments of error as required by

App.R. 16(A)(7). Instead, the Pinkertons have presented just one argument in support

of both assignments of error. Under App.R. 12(A)(2), we may choose to disregard any

assignment of error that an appellant fails to separately argue. Therefore, we could

exercise our discretionary authority to summarily overrule the Pinkertons’ first-and-

second assignments of error. See Newman v. Enriquez, 171 Ohio App.3d 117, 2007-

Ohio-1934, at ¶18; Mtge. Electronic Registrations Sys. v. Mullins, 161 Ohio App.3d 12,

2005-Ohio-2303, at ¶22, citing Park v. Ambrose (1993), 85 Ohio App.3d 179, 186; State

v. Caldwell (1992), 79 Ohio App.3d 667, 677, fn. 3. In the interest of justice, however,

we choose to address the Pinkertons’ first-and-second assignments of error.

                                            III.

{¶13}     In their first-and-second assignments of error, the Pinkertons contend that the

trial court should not have granted the appellees’ respective motions for summary

judgment. “Because this case was decided upon summary judgment, we review this

matter de novo, governed by the standard set forth in Civ.R. 56.” Comer v. Risko, 106

Ohio St.3d 185, 2005-Ohio-4559, at ¶8. Summary judgment is appropriate only when

the following have been established: (1) there is no genuine issue as to any material
Scioto App. Nos. 10CA3386 & 10CA3388                                                6


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

minds can come to only one conclusion, and that conclusion is adverse to the

nonmoving party. Civ.R. 56(C). See, also, Bostic v. Connor (1988), 37 Ohio St.3d 144,

146; Grimes v. Grimes, Washington App. No. 08CA35, 2009-Ohio-3126, at ¶14. In

ruling on a motion for summary judgment, the court must construe the record and all

inferences that arise from it in the opposing party’s favor. Doe v. First United Methodist

Church, 68 Ohio St.3d 531, 535, 1994-Ohio-531, superseded by statute on other

grounds.

{¶14}      The burden of showing that no genuine issue of material fact exists falls upon

the party who moves for summary judgment. Dresher v. Burt, 75 Ohio St.3d 280, 294,

1996-Ohio-107. However, once the movant supports his or her motion with appropriate

evidentiary materials, the nonmoving party “may not rest upon the mere allegations or

denials of the party’s pleadings, but the party’s response, by affidavit or as otherwise

provided in [Civ.R. 56], must set forth specific facts showing that there is a genuine

issue for trial.” Civ.R. 56(E). See, also, Dresher at 294-295; Grimes at ¶15.

{¶15}      “In reviewing whether an entry of summary judgment is appropriate, an

appellate court must independently review the record and the inferences that can be

drawn from it to determine if the opposing party can possibly prevail.” Grimes at ¶16

(citation omitted). “Accordingly, we afford no deference to the trial court’s decision in

answering that legal question.” Morehead v. Conley (1991), 75 Ohio App.3d 409, 412.

See, also, Schwartz v. Bank One, Portsmouth, N.A. (1992), 84 Ohio App.3d 806, 809;

Grimes at ¶16.

                                            IV.
Scioto App. Nos. 10CA3386 & 10CA3388                                                    7


{¶16}       For ease of analysis, we will review the Pinkertons’ second assignment of

error out of order. In their second assignment of error, the Pinkertons contend that the

trial court should not have granted BBL-Carlton’s motion for summary judgment.

Essentially, the Pinkertons contend that there are genuine issues of material fact as to

whether BBL-Carlton’s negligence contributed to Craig Pinkerton’s injuries.

{¶17}       “It is well-settled that in a negligence suit between private parties, the plaintiff

must prove (1) the existence of a legal duty, (2) the defendant’s breach of that duty,

and, (3) that the breach was the proximate cause of harm and damages.” Scott v.

Marckel, Defiance App. No. 4-07-27, 2008-Ohio-2743, at ¶19, citing Nationwide Mut.

Ins. Co. v. Am. Heritage Homes Corp., 167 Ohio App.3d 99, 2006-Ohio-2789, at ¶12.

“In tort law, whether a defendant owes a duty to a plaintiff depends upon the

relationship between them.” Huston v. Konieczny (1990), 52 Ohio St.3d 214, 217.

Furthermore, “[t]he existence of a duty in a negligence action is a question of law for the

court to determine.” Mussivand v. David (1989), 45 Ohio St.3d 314, 318. Here, BBL-

Carlton argues that it did not owe a duty of care to Craig Pinkerton. And because there

is no evidence that BBL-Carlton actively participated in Dixon Electrical’s job operations,

we agree.

{¶18}       As a general rule, “Where 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.” Wellman v. E. Ohio Gas Co. (1953), 160 Ohio St. 103,

at paragraph one of the syllabus. “In other words, when an employee of a
Scioto App. Nos. 10CA3386 & 10CA3388                                                8


subcontractor is injured while performing work for his or her employer that is inherently

dangerous, the owner and/or general contractor owes no duty of care to that employee.”

Wyczalek v. Rowe Constr. Serv. Co., 148 Ohio App.3d 328, 2001-Ohio-3104, at ¶21,

citing Sopkovich v. Ohio Edison Co., 81 Ohio St.3d 628, 636-37, 1998-Ohio-341. Here,

Dixon Electrical was an independent subcontractor, and BBL-Carlton was the

construction manager. Under Wellman, a construction manager is akin to a general

contractor. See Wyczalek at ¶22. Furthermore, Ohio courts have long recognized that

construction work is inherently dangerous. See Bond v. Howard Corp., 72 Ohio St.3d

332, 336, 1995-Ohio-81 (“A construction site is inherently a dangerous setting.”)

(citation omitted); Lillie v. Meachem, Allen App. No. 1-09-09, 2009-Ohio-4934, at ¶26;

Anderson v. Snider Cannata Co., Cuyahoga App. No. 91801, 2009-Ohio-4363, at ¶23.

Therefore, we find that the general rule in Wellman applies to the present case.

{¶19}     Despite the general rule in Wellman, BBL-Carlton would have owed a duty of

care to Carl Pinkerton if BBL-Carlton had actively participated in Dixon Electrical’s job

operations. The active-participation “exception occurs when the * * * construction

manager[] actively participates in the subcontractor’s job operations by either directing

or exercising ‘control over the work activities of the independent contractor’s

employees[.]’” Wyczalek at ¶22, quoting Sopkovich at 642-43. A “construction

manager, who has less involvement with the field operations on a day-to-day basis,

does not rise to the level of active participation when it merely exercises a general

supervisory role over a project.” Wyczalek at ¶23, citing Bond at syllabus. Rather, the

“construction manager must have directed the activity that resulted in the injury and/or

given permission for the critical acts that led to the employee’s injury.” Id.
Scioto App. Nos. 10CA3386 & 10CA3388                                                 9


{¶20}     Here, there is no evidence that BBL-Carlton actively participated in Dixon

Electrical’s job operations. In fact, the Pinkertons do not even allege active participation

on behalf of BBL-Carlton. Therefore, as a matter of law, BBL-Carlton did not owe a duty

of care to Craig Pinkerton.2 And without a duty of care, there can be no negligence.

See Jeffers v. Olexo (1989), 43 Ohio St.3d 140, 142.

{¶21}     Accordingly, BBL-Carlton is entitled to judgment as a matter of law, and we

overrule the Pinkertons’ second assignment of error.

                                             V.

{¶22}     In their first assignment of error, the Pinkertons contend that the trial court

should not have granted J&H Reinforcing’s motion for summary judgment. Essentially,

the Pinkertons contend that there are genuine issues of material fact as to whether J&H

Reinforcing’s negligence contributed to Craig Pinkerton’s injuries.

                    A. Duty of Ordinary Care or Active Participation?

{¶23}     Like BBL-Carlton, J&H Reinforcing contends that it did not owe a duty of care

to Craig Pinkerton. As we noted earlier, the existence of a duty depends upon the

relationship between the particular parties. See Huston at 217. And significantly, J&H

Reinforcing was not an owner, general contractor, or construction manager. Instead,




2
  In relation to either J&H Reinforcing or BBL-Carlton, the Pinkertons cannot establish a
duty of care under the frequenter statute. “R.C. 4101.11 requires every employer to
furnish a place of employment that is safe for its employees and for frequenters of the
place of employment. However, ‘[t]he duty to frequenters of places of employment, set
forth in R.C. 4101.11, does not extend to hazards which are inherently and necessarily
present because of the nature of the work performed, where the frequenter is the
employee of an independent contractor.’ Eicher v. United States Steel Corp. (1987), 32
Ohio St.3d 248[,] syllabus. Instead, the primary responsibility for protecting such an
employee lies with his employer. Id., at 250[.]” Kratzer v. Gen. Motors Corp. (Feb. 27,
1998), Montgomery App. Nos. 16590, 16593, and 16594.
Scioto App. Nos. 10CA3386 & 10CA3388                                               10


J&H Reinforcing and Dixon Electrical were both independent subcontractors on the

same construction project.

{¶24}     The Supreme Court of Ohio discussed the duty that one independent

subcontractor owes to a second independent subcontractor in Kucharski v. Natl.

Engineering Contracting Co., 69 Ohio St.3d 430, 1994-Ohio-320. As the court held, “An

independent contractor who lacks a contractual relationship with a second independent

contractor owes no affirmative duty beyond that of ordinary care to the employees of the

second contractor, where the first contractor does not supervise or actively participate in

the second contractor’s work.” Kucharski at syllabus. The Kucharski syllabus does not,

however, mention the duty of care that one independent subcontractor owes to a

second independent subcontractor in an inherently dangerous work environment.

Regardless, the Pinkertons rely on Kucharski and argue that J&H Reinforcing owed

Craig Pinkerton a duty of ordinary care, regardless of either (1) the inherent danger of

the construction site or (2) J&H Reinforcing’s level of participation with Dixon Electrical.

But J&H Reinforcing argues that it did not owe a duty of care to Craig Pinkerton

because (1) the construction site was inherently dangerous and (2) J&H Reinforcing did

not actively participate in Dixon Electrical’s job operations.

{¶25}     Because the construction site was inherently dangerous, we believe that J&H

Reinforcing’s active participation was necessary to establish a duty of care to Craig

Pinkerton. Here, we agree with the Seventh Appellate District’s reasoning in Solanki v.

Doug Freshwater Contracting, Inc., Jefferson App. No. 06-JE-39, 2007-Ohio-6703. In

Solanki, the court held that “unrelated parties hired to work on the same premises” do

not owe each other a duty of care when (1) there is no active participation and (2) the
Scioto App. Nos. 10CA3386 & 10CA3388                                              11


work is inherently dangerous. Id. at ¶39-44. As the court explained, “The rationale

behind the ‘inherently dangerous’ cases is that if a property owner or general contractor

hires an independent contractor or subcontractor to perform certain work, the property

owner or general contractor may assume a duty to the worker to keep the work

premises safe. However, if the property owner or general contractor hires the

independent contractor or subcontractor to perform inherently dangerous work, then

that duty is eliminated because of the intrinsic risk in the work, of which the independent

contractor or subcontractor is aware and should guard against. This reasoning applies

to the fact pattern at hand. While the [appellee] did not owe [the appellant] a duty by

way of hiring him to perform a job, as stated above, they did owe him a duty in

performing their work to use ‘ordinary and reasonable care’ so as to not cause him

injuries. If, however, [the appellant] was performing work that was inherently dangerous

when he was injured, then the [appellee] did not owe him a duty because he should

have been aware of the dangers of his work and protected himself against them.” Id. at

¶44.

{¶26}     We find the reasoning in Solanki persuasive and apply it to the present case.

Otherwise, J&H Reinforcing would have owed Craig Pinkerton a greater duty of care

than an owner, general contractor, or construction manager would have. The Supreme

Court of Ohio has held that “[a] general contractor who has not actively participated in

the subcontractor’s work, does not, merely by virtue of its supervisory capacity, owe a

duty of care to employees of the subcontractor who are injured while engaged in

inherently dangerous work.” Cafferkey v. Turner Constr. Co. (1986), 21 Ohio St.3d 110,

syllabus. Thus, absent active participation, a general contractor has no duty of care to
Scioto App. Nos. 10CA3386 & 10CA3388                                             12


an independent subcontractor in an inherently dangerous situation. This is true even if

the general contractor has supervised the independent subcontractor’s work.

{¶27}     Here, J&H Reinforcing did not supervise the work of Dixon Electrical or Craig

Pinkerton. Instead, J&H Reinforcing and Dixon Electrical were both independent

subcontractors on the same inherently dangerous worksite. And we do not believe that,

absent active participation, J&H Reinforcing should have owed some duty to Craig

Pinkerton while the general contractor would have owed him no duty whatsoever.

Because of its supervisory capacity, the general contractor would have had more

control over Craig Pinkerton’s work than J&H Reinforcing had. Thus, we will not apply a

heightened duty of care to an entity that had less actual influence over Craig Pinkerton’s

work environment.

{¶28}     Finally, Kucharski expressly “approved and followed” the holding in Cafferkey.

See Kucharski at syllabus. Therefore, it is logical to assume that Cafferkey’s no-duty-

without-active-participation rule would extend to fellow independent subcontractors

under Kucharski.

{¶29}     Accordingly, to establish that J&H Reinforcing owed a duty to Craig Pinkerton,

the Pinkertons must show that J&H Reinforcing actively participated in Dixon Electrical’s

job operations.

                        B. What Does Active Participation Mean?

{¶30}     When discussing the relationship between two independent subcontractors, it

is not entirely clear what “active participation” means. The Supreme Court of Ohio

announced the duty of care between independent subcontractors in Kucharski. See

Kucharski at syllabus. But in Kucharski, the court did not describe what it means for
Scioto App. Nos. 10CA3386 & 10CA3388                                               13


one independent subcontractor to actively participate in the work of another

independent subcontractor.

{¶31}     After Kucharski, the Supreme Court explained the meaning of active

participation in Bond. But the syllabus in Bond expressly relates to the duty that general

contractors owe to independent contractors. As the court held, “For purposes of

establishing liability to the injured employee of an independent subcontractor, ‘actively

participated’ means that the general contractor 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

at syllabus (emphasis added).

{¶32}     In Sopkovich, the Supreme Court of Ohio again elaborated on active

participation. The court 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 (emphasis

added). Therefore, the holding in Sopkovich relates only to property owners.

{¶33}     Because the Supreme Court of Ohio did not mention Kucharski in either Bond

or Sopkovich, the court has yet to define what specifically constitutes active participation

between independent subcontractors. Nevertheless, the Seventh District Court of

Appeals applied Bond’s definition of active participation to this type of relationship. See

Solanki at ¶¶30-32, 42. See, also, Kratzer; but, see, Nibert v. Columbus/Worthington

Heating & Air Conditioning, Fayette App. No. CA2009-08-015, 2010-Ohio-1288, at ¶22

(“Applying the ‘active participation’ definition as stated in Bond or Sopkovich is often
Scioto App. Nos. 10CA3386 & 10CA3388                                                  14


unworkable in situations involving multiple subcontractors since the roles among

subcontractors are typically not supervisory in nature. Subcontractors are usually

employed to perform separate tasks, but, as here, these tasks often overlap in some

manner or involve the same workspace although no supervisory relationship exists.”).

{¶34}      Like the Seventh Appellate District, we also choose to follow Bond’s definition

of active participation. As we noted, Kucharski establishes the duty that one

independent subcontractor owes to another independent subcontractor. And

significantly, both Bond and Kucharski apply and follow the same case: Cafferkey. See

Bond at syllabus; Kucharski at syllabus. Therefore, because both Bond and Kucharski

follow Cafferkey, we believe (1) that Bond and Kucharski are somewhat analogous and

(2) that it is appropriate to apply Bond’s definition of active participation to the syllabus

in Kucharski. Thus, in the present case, we will apply the following definition of active

participation: For purposes of establishing liability to the injured employee of an

independent subcontractor, ‘actively participated’ means that a fellow independent

contractor 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. See Bond at syllabus.

{¶35}      The Pinkertons rely on Sopkovich and argue that J&H Reinforcing

demonstrated active participation by “exercis[ing] actual control over the injury causing

variable in the workplace[.]” Brief of Plaintiffs-Appellants at 27. That is, the Pinkertons

contend that J&H Reinforcing exercised control over the mechanical room’s doorframe.

In our view, however, the holding in Sopkovich does not affect the duty that one

independent contractor owes to another independent contractor. “Although the

Sopkovich court did address active participation, it limited it strictly to the owner of the
Scioto App. Nos. 10CA3386 & 10CA3388                                               15


property, Ohio Edison, and its exclusive control and communication over deactivation of

electrical lines.” Rockett v. Newark Builders Supply, Inc., 169 Ohio App.3d 379, 2006-

Ohio-5715, at ¶21. In fact, throughout Sopkovich, the Supreme Court of Ohio expressly

limited its holding to property owners. And unlike Bond and Kucharski, the court did not

base Sopkovich on the holding in Cafferkey. See Sopkovich at 642-43 (“As is clear

from Hirschbach, and from cases preceding and postdating Hirschbach * * *, a property

owner’s retention of possession and control over the work area of an independent

contractor’s employees has always been an integral part of the active-participation

analysis, where, as here, the owner’s liability is at issue.”). Accordingly, the Pinkertons

cannot show active participation by claiming that J&H Reinforcing exercised control over

the injury causing variable; i.e., the doorway.

{¶36}     Applying our definition of active participation, there is no evidence that J&H

Reinforcing directed any of Dixon Electrical’s activities. Furthermore, there is no

evidence that J&H Reinforcing gave or denied permission for the critical acts that led to

Craig Pinkerton’s injury. Therefore, as a matter of law, J&H Reinforcing did not actively

participate in Dixon Electrical’s job operations. And as a result, J&H Reinforcing did not

owe a duty of care to Craig Pinkerton. Without a duty of care, there can be no

negligence. See Jeffers at 142.

                                             C.

{¶37}     Accordingly, J&H Reinforcing is entitled to judgment as a matter of law, and

we overrule the Pinkertons’ first assignment of error.

                                             VI.
Scioto App. Nos. 10CA3386 & 10CA3388                                               16


{¶38}     In their third assignment of error, the Pinkertons contend that the trial court

should have given more weight to the testimony of a particular witness. However,

based on our resolution of the first two assignments of error, we find the Pinkerton’s

third assignment of error to be moot. The witness in question did not testify that any of

the defendants had directed the activities of Dixon Electrical or Craig Pinkerton.

Furthermore, this particular witness did not testify that any of the defendants had given

or denied permission for the critical acts that led to Craig Pinkerton’s injury. Instead, the

witness testified that, in his opinion, employees of J&H Reinforcing had removed the

doors and the mullion. Because neither BBL-Carlton nor J&H Reinforcing owed a duty

of care to Craig Pinkerton, this testimony is immaterial. Accordingly, we decline to

address the Pinkertons’ third assignment of error. See App.R. 12(A)(1)(c).

                                            VII.

{¶39}     After construing the record and all inferences therefrom in the Pinkertons’

favor, we find the following: (1) there are no genuine issues of material fact; (2) both

J&H Reinforcing and BBL-Carlton are entitled to judgment as a matter of law on all of

the Pinkertons’ claims; and (3) reasonable minds can come to just one conclusion as to

all of the appellants’ claims, and that conclusion is adverse to the Pinkertons.

Accordingly, we affirm the judgment of the trial court.

                                                                  JUDGMENT AFFIRMED.
Scioto App. Nos. 10CA3386 & 10CA3388                                                17


                                   JUDGMENT ENTRY

       It is ordered that the JUDGMENT BE AFFIRMED. Appellants shall pay the costs
herein taxed.

       The Court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this Court directing the
Scioto County Court of Common Pleas to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure. Exceptions.

Harsha, J.: Concurs in Judgment and Opinion as to Assignment of Error No. II.
             Dissents as to Assignments of Error No. I and III.
Abele, P.J.: Concurs in Judgment Only.


                                   For the Court


                                   BY:_____________________________
                                      Roger L. Kline, Judge




                                 NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
