[Cite as Oliphant v. AWP, Inc., 2020-Ohio-229.]



                                    IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                            BUTLER COUNTY




JOSEPH OLIPHANT AND                               :
ANITA OLIPHANT,
                                                  :     CASE NO. CA2019-02-036
       Appellants,
                                                  :           OPINION
                                                               1/27/2020
   - vs -                                         :

                                                  :
AWP, INC.,
                                                  :
       Appellee.



            CIVIL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                              Case No. CV2016-04-0958



Rendigs, Fry, Kiely & Dennis, LLP, John F. McLaughlin, Peter L. Ney, 600 Vine Street, Suite
2650, Cincinnati, Ohio 45202, for appellants

Reminger Co., LPA, Vincent P. Antaki, 525 Vine Street, Suite 1700, Cincinnati, Ohio 45202,
for appellee

Cooke Demers, LLC, Adam J. Bennett, Andrew P. Cooke, 260 Market Street, Suite F, New
Albany, Ohio 43054, for Ohio Bureau of Workers' Compensation



        HENDRICKSON, P.J.

        {¶ 1} Appellants, Joseph Oliphant and Anita Oliphant, appeal the decision of the

Butler County Court of Common Pleas granting summary judgment to appellee, AWP, Inc.,

on the Oliphants' respective claims for negligence and loss of consortium. For the reasons
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discussed below, we affirm the judgment of the trial court.

       {¶ 2} The present case arises out of an accident that occurred within a utility work

zone located near the intersection of Cox Road and Liberty Way in West Chester, Butler

County, Ohio on April 22, 2015. Duke Energy had contracted with Bowlin Energy, a utility

company, to install new electrical poles and power lines for a development project around the

area (the "Cox Road Project"). Duke Energy had contracted with AWP to provide temporary

traffic control services for the Cox Road Project. AWP was responsible for creating and

maintaining a work zone on Cox Road and for providing traffic control near the work zone.

       {¶ 3} Cox Road runs north and south.         It has two northbound lanes and two

southbound lanes, which are separated by a flat median. There is also a bicycle lane that

runs south on Cox Road next to the curb. On April 22, 2015, Bowlin was installing support

wires on Cox Road near the intersection with Liberty Way. The support wires were to run

from newly installed poles on the west side of Cox Road to newly installed poles on the east

side of Cox Road. To allow Bowlin to install the wires, AWP created a lane-closure in the

lane closest to the bicycle path that abutted the curb in the southbound lane of Cox Road.

This allowed traffic to continue to travel southbound on Cox Road in the lane closest to the

median while creating a work zone for Bowlin employees. One of Bowlin's utility trucks sat

partly in the bicycle lane and partly in the closed southbound lane. Once Bowlin was ready to

run the newly installed wires from the west side of Cox Road to the poles on the east side of

Cox Road, AWP employees, with the aid of a West Chester police officer, would briefly stop

all lanes of traffic on Cox Road.

       {¶ 4} Tiffanie McCants and Amber Rooks, traffic control specialists employed by

AWP, set up and maintained the work zone on Cox Road on April 22, 2015. After speaking

with Bowlin employees about the work to be completed that day, McCants and Rook laid out

traffic cones and caution signs the required distance from one another. McCants and Rook
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used an arrow board on the back of an AWP truck to let motorists know the southbound

curbside lane was closed and motorists had to travel southbound in the open lane that

abutted the median. McCants and Rook directed Officer Jeffrey Newman to park his patrol

car at the north end of the Liberty Way intersection to block entrance into the closed lane.

           {¶ 5} Multiple Bowlin employees worked inside the work zone created by McCants

and Rooks, including Billy Moore, Bowlin's foreman, Blake Patton, who operated the bucket

of Bowlin's utility truck, and J. Oliphant, a member of the ground crew. While Bowlin

employees worked within the work zone, McCants and Rook stood at opposite ends of the

work zone, monitoring traffic and ensuring that pedestrians and bicyclists did not enter the

work zone. They held paddles that said "SLOW" on one side and "STOP" on the other.

McCants and Rooks also patrolled the work zone, making sure no cones had fallen, that the

signs remained visible, and warning lights were functioning correctly.

           {¶ 6} Bowlin's work required Bowlin to communicate with AWP so that AWP could

adjust the work zone when necessary. When Bowlin was ready to hang utility wires from the

west side to the east side of Cox Road, necessitating the closure of all lanes of traffic,

Bowlin's foreman would call a "huddle" or meeting with Bowlin and AWP workers to discuss

the next steps. Moore explained that such a huddle was typical or common in utility work as

it was necessary to ensure that everyone was on the same page when it came to stopping

traffic.

           {¶ 7} Shortly after 3:00 p.m. on April 22, 2015, Moore signaled McCants and Rooks

to meet. McCants and Rooks huddled with Moore and J. Oliphant in the curbside lane of

southbound Cox Road by the side of the Bowlin utility truck to discuss closing all lanes of

traffic. Moore explained that the location of a huddle depends upon the particular worksite.

Moore made a judgment call to have the huddle by the side of the Bowlin truck facing the

closed southbound lane because, in his opinion, it was the "best place" for the huddle due to
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the strong wind that was blowing that day. Moore and J. Oliphant were located closest to the

truck, with McCants and Rooks flanking them and standing further in the closed lane of

traffic. Patton, who was in the bucket of the utility truck, also participated in the meeting.

       {¶ 8} Just as the huddle broke, a vehicle driven by Michelle Shuster, who was under

the influence of Xanax and marijuana, entered the work zone and struck Bowlin's utility truck,

J. Oliphant, Moore, McCants, and Rooks. Schuster's car had come from a northbound lane

of traffic, crossed over the median and open southbound lane of traffic, and entered the

closed southbound lane where Bowlin's and AWP's workers were standing. Shuster,

traveling at 50 m.p.h., struck the workers without hitting her vehicle's brakes. No screeching

tires or honking horns warned the workers of Schuster's out-of-control vehicle.

       {¶ 9} Rooks, J. Oliphant, Moore, and McCants were transported to a hospital by

ambulance. Rooks died from the injuries she sustained from the accident. J. Oliphant

sustained serious brain and orthopedic injuries, rendering him permanently disabled. Moore

and McCants also sustained serious orthopedic injuries.

       {¶ 10} Following the accident, Schuster was convicted of aggravated vehicular

homicide, negligent homicide, three counts of aggravated vehicular assault, and operating a

motor vehicle while impaired. In April 2016, the Oliphants filed suit against Schuster and

Kevin Bowman, the individual believed to have supplied Schuster with marijuana and Xanax,

in Butler County Court of Common Pleas Case No. CV2016-04-0958. The Oliphants

asserted claims of negligence and loss of consortium against Schuster and Bowman, and

further contended that Bowman and Schuster had been engaged in a joint enterprise at the

time Schuster struck J. Oliphant, thereby making Bowman vicariously liable for Schuster's

actions. The Ohio Bureau of Worker's Compensation ("OBWC") was also named as a party

to the suit, as OBWC had a subrogation interest in the action due to paying medical bills,

expenses, or benefits to J. Oliphant.
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       {¶ 11} In July 2016, Rooks' estate filed a wrongful death action against Bowman and

Schuster in Butler County Court of Common Pleas Case No. CV2016-07-1582. The case

was consolidated with the Oliphants' suit in Case No. CV2016-04-0958. Subsequently, in

September 2016, Bowman filed for bankruptcy and the cases were stayed. Bowman was

discharged from bankruptcy on March 2, 2017. Shortly thereafter, on April 18, 2017, the

Oliphants filed suit against AWP in Butler County Court of Common Pleas Case No. CV2017-

04-0864, asserting claims for negligence and loss of consortium. Specifically, the Oliphants

alleged that AWP had been hired and had "assumed a duty of care to create, implement, and

execute a traffic safety and control plan to protect the safety of Bowlin employees within the

Work Zone, including Joseph Oliphant," AWP had breached its duty of care, and as a direct

and proximate cause of its breach of duties, J. Oliphant suffered severe permanent injuries.

This suit was consolidated with the Oliphants' suit against Bowman and Schuster.

       {¶ 12} Following the filing of the foregoing lawsuits, the parties engaged in discovery.

Multiple depositions were taken, including the depositions of Bowman, Officer Newman,

Patton, Moore, J. Oliphant, A. Oliphant, McCants, Eric Hulme, the director of safety at AWP,

and Jerry G. Pigman, a professional engineer and traffic control expert.

       {¶ 13} During their respective depositions, Patton, Moore, and McCants all testified

about the huddle that took place immediately prior to the accident. All agreed that it was

"normal" or "common" to have a huddle that included both utility workers and traffic control

workers. Regarding the location of the meeting, all agreed that Moore called the huddle and

selected the side of the Bowlin truck facing the closed southbound lane as the place for the

huddle. Although Moore believed this was the "best place" for the huddle, Patton noted that

"normally they stay at the ends of the work zones, not just like right in the middle" of the work

zone. However, Patton "didn’t really think about [the location] too much." Moore admitted

that if it had not been so windy on April 22, 2015, the huddle would have likely occurred
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behind the truck at its rear corner as "we just always work off the back of the truck. It just

comes natural."

        {¶ 14} McCants testified that when she and Rooks joined Moore and J. Oliphant near

the utility truck during the huddle, she and Rooks, who were flanking Moore and J. Oliphant,

stood closer to the open southbound lane because she and Rooks "were protecting" Moore

and J. Oliphant. She stated, "We were trying to make sure that they had the most protection

they could have. Even if it meant using ourselves as crash dummies." Although McCants

acknowledged that flanking Moore and J. Oliphant in an effort to use their bodies to protect

Moore and J. Oliphant was not part of the training she received from AWP, she stated she

and Rooks nonetheless stood that way because they recognized that the Bowlin workers

were "not safe" as they were standing in an area exposed to traffic traveling north and south

on Cox Road.

        {¶ 15} When deposed, McCants, Moore, and Patton all stated that they never saw

Schuster's vehicle cross from the northbound lane, over the median and open southbound

lane, and into the work zone before hitting them.1 All agreed that every worker in the work

zone had a duty to watch out for out-of-control vehicles entering the work zone, but no one

saw Schuster's vehicle until it struck them. McCants stated, "it was the most outrageous

thing [she had] ever seen in [her] life" and there was no time to react or warn the others of

Schuster's vehicle before they were all struck. Moore agreed that neither Rooks or McCants

had time to warn anyone of Schuster's out-of-control vehicle as it was "just a wild accident."

        {¶ 16} Patton, however, felt that the workers on the ground – both utility and traffic

control workers – should have had time to react to Schuster's out-of-control vehicle. He

noted that while his back was turned to the northbound traffic as he was moving the bucket of


1. Due to the injuries he sustained, J. Oliphant has experienced problems with his memory and was unable to
recall the events that occurred around the time of the accident.
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                                                                      Butler CA2019-02-036

Bowlin's truck upwards, no one else's back should have been turned away from traffic. Patton

testified that while the accident could not have been prevented, he believed it may have been

possible for someone on the ground to have warned or signaled about the out-of-control

vehicle. He stated,

              There's a – there's freak accidents and then there's controllable
              variables. And the line between those aren't – isn't always clear-
              cut, but could somebody have [time to react to the out-of-control
              vehicle]? Yes and no. * * *

              ***

              Prevented [the accident], no. I don't think anybody could have
              stopped the car coming. Warned, signaled, I mean that's
              technically an undetermined variable. But when somebody's job
              is to maintain that variable or maintain the route to get out of
              those variables or to avoid those variables, I think it can become
              and be viewed differently.

       {¶ 17} The expert retained by the Oliphants provided a written opinion that AWP had

failed to perform traffic services within the work zone at Cox Road in a manner that

conformed to generally accepted standards of care in the industry. After examining the traffic

crash report from the accident, the West Chester Police Department's case summary report,

photographs of the accident, discovery responses from AWP and Duke Energy, deposition

testimony from those present at the scene of the accident, and the crash data retrieval report

from Schuster's vehicle, Pigman determined that the distance of travel from the northbound

interior lane of Cox Road, where Schuster's vehicle approached from, to the area of impact in

the work zone was approximately 350 to 400 feet. As Schuster's vehicle was traveling 50

m.p.h. during the five seconds prior to impact with no breaking during the eight seconds prior

to impact, Pigman determined that workers in the work zone would have had 4.8 to 5.4

seconds to observe the approaching vehicle and take some form of action to avoid being

impacted by the vehicle. Pigman's report opined that



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                                                                         Butler CA2019-02-036

              Ms. McCants and Ms. Rooks, as AWP employees responsible
              for traffic control at the work site, should have had sufficient time
              and opportunity to observe the approaching out-of-control vehicle
              and issue a warning to others in the work area. The Chevrolet
              Cavalier [driven by Schuster] was less than 6 feet wide and
              therefore with advance warning, minor movement by the work
              crew away from the approach path could have likely been
              accomplished in the time available.

       {¶ 18} Pigman noted that McCants and Rooks "were not actively flagging at the time of

collision" but instead were meeting with Bowlin employees adjacent to the utility truck.

Pigman explained that the "primary responsibility of personnel providing traffic control is to

ensure the work zone is set up in conformance with MUTCD [Manual on Uniform Traffic

Control Devices] standards and managed throughout the work activity with maximum

attention to the workers within the work zone and traveling public."            In spite of this

responsibility, McCants and Rooks, by standing in the work zone in front of the Bowlin utility

truck during the huddle, were not in Pigman's opinion, "positioned where maximum traffic

control and advance warning could have been provided to the Bowlin work crew. * * * Their

choice of a location to meet and discuss traffic control and subsequent inattention to

approaching traffic did not allow the opportunity to provide maximum safety." In Pigman's

expert opinion, "even when not actively flagging or performing other basic traffic control

duties, [McCants and Rooks] should have been alert to the potential breach of the work zone

and hazard to those performing the work activity."

       {¶ 19} Pigman was later deposed and questioned about his written opinion. Pigman

clarified that traffic control specialists managing a work zone in a work zone safety operation

is different than an active flagging operation near a work zone. Pigman stated that "[i]t was

not necessary for flagging activities to be present or ongoing at [the Cox Road] location as it

was laid out." However, "AWP, as the traffic control providers, had a responsibility to




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maintain a safe working area, not necessarily by being flaggers, but necessarily by being

safety providers within the work zone."

       {¶ 20} Pigman testified he was critical of the location of the huddle that occurred

immediately prior to the accident. Although there is "no industry publication" that specified

where such a meeting should take place, Pigman testified that broad safety guidelines with

the need for attentiveness to the safety of the work area determine the appropriate location

for a meeting. Pigman testified, "if there was a need for a meeting, [workers] should have

been convened in a more safe [sic] location than adjacent to a truck, being the bucket truck,

with only traffic cones being the separating channeling barrier device." Rather, Pigman

testified, the meeting should have occurred "[o]ff the roadway, on a sidewalk or away from

the traffic flow, where the likelihood of being between a vehicle and traffic moving would have

been eliminated." Furthermore, Pigman testified that if Bowlin had, indeed, been the one to

call the meeting at the side of the truck, "AWP, as the traffic control providers, should have

insisted that a location, other than where they were standing, be found for that meeting, and

involve all the parties there, including the police officer that apparently was in the immediate

vicinity, as well as the other Bowlin employee[s]."

       {¶ 21} Finally, Hulme, AWP's director of safety, was deposed, and he testified about

the difference between a "flagger" and a "traffic control specialist." He explained that the two

terms are not synonymous with one another and that "a 'flagger' in the State of Ohio is a

legal traffic control device. It is somebody who has an understanding of the regulations, the

guidelines associated with that role. A 'traffic control specialist' is a job title at AWP."

According to Hulme, McCants and Rooks were not functioning as "flaggers" at the Cox Road

Project on April 22, 2015, but rather were providing temporary traffic control services related

to a right-hand lane closure.



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        {¶ 22} Hulme testified that AWP had adopted the training and safety standards of the

American Traffic Safety Services Association ("ATSSA"). Rooks, who had been hired on

January 13, 2015, and McCants, who had been hired on February 3, 2015, were trained

according to ATSSA safety standards. Hulme testified that AWP employees are trained to

recognize that out-of-control vehicles, distracted drivers, and impaired drivers are a danger in

a work zone. He stated,

              AWP provides its traffic control specialists with knowledge and
              an expectation that they are to be aware of their surroundings, to
              know what escape route that those employees will follow if there
              is – if there is a need to follow an escape route, and wants to be
              able to ensure that they are aware and have the opportunity to
              warn workers in the event of a potential issue.

In order to warn workers of out-of-control vehicles, AWP equips its employees with two-way

radios that have a "call feature," which emits a loud, audible noise that can be heard from a

"great distance" away. McCants and Rooks had been issued the two-way radios on April 22,

2015.

        {¶ 23} Regarding the huddle that occurred immediately before the accident, Hulme

testified that traffic control specialists have regular communications with utility workers in

order to understand what work is being performed, how it is going to be performed, and what

controls are needed to make the area the safest for the workers, road users, and traffic

control specialists. When asked whether both McCants and Rooks needed to be present in

the huddle, Hulme stated there was "potentially" a need for both employees to be present, as

it was important that all individuals in the work zone had a clear understanding of what was

about to take place so that work could proceed as planned. When questioned about whether

McCants or Rooks should have suggested a different location for the huddle, Hulme stated

that "AWP hopes that its traffic control employees would work with their customer and

understand and choose a location to have their huddles that limits the risks that they are


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exposed to."       After being pressed on the issue, Hulme stated McCants and Rooks

"potentially" should have suggested the huddle occur elsewhere, stating "AWP does see that

there are other locations and opportunities for them to meet, rather than where they were

standing * * *. But AWP does not have firsthand knowledge as to why they [Bowlin] chose

that specific location."

        {¶ 24} Following discovery, AWP moved for summary judgment on the Oliphants'

negligence and loss of consortium claims, arguing that AWP did not owe a duty to J. Oliphant

as Bowlin and AWP were two independent contractors that did not have a contractual

relationship with one another, Bowlin was engaged in an inherently dangerous activity (utility

construction) and AWP was not an active participant in Bowlin's work, and AWP did not have

a "special relationship" with J. Oliphant. Alternatively, even if a duty of reasonable care was

owed to Bowlin employees, AWP contended it met this burden in its creation,

implementation, and execution of the work zone. AWP further argued that the Oliphants

could not demonstrate that J. Oliphant's injuries were caused by any breach of AWP's duty of

care. Rather, AWP contended that "the criminal act of * * * Schuster was an intervening and

unforeseeable act, which breaks the causal chain." In support of its motion, AWP relied on

deposition testimony from Hulme, Moore, Pigman, and McCants as well as an affidavit from

Hulme, in which he averred in pertinent part that McCants and Rooks had successfully

completed ATSSA safety training.2

        {¶ 25} The Oliphants filed a memorandum in opposition to AWP's motion for summary

judgment, arguing that AWP owed a duty to J. Oliphant as (1) J. Oliphant was an intended

beneficiary under AWP's contract with Duke Energy and (2) AWP employees had assumed a



2. In his affidavit, Hulme also attempted to introduce evidence of an OSHA investigation that was completed
after the accident. The trial court granted the Oliphants' motion to strike evidence and testimony of the OSHA
investigation from AWP's motion for summary judgment on January 3, 2019. AWP did not appeal the trial court's
decision to strike this evidence.
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duty to protect Bowlin utility workers, including J. Oliphant, from the danger of out-of-control

vehicles. The Oliphants argued AWP breached these duties by failing to comply with section

6E.07 of the Ohio Manual on Uniform Traffic Control Devices ("OMUTCD"), which sets forth

certain standards and recommendations for flagging procedures, by failing to be properly

positioned to warn of out-of-control vehicles, and by failing to pay sufficient attention to warn

of an out-of-control vehicle. Finally, with respect to the issue of proximate cause, the

Oliphants contended that Schuster's criminal act was "not a superseding cause because the

risk of an out-of-control vehicle entering the work zone – regardless of what caused the driver

of the vehicle to lose control – was a foreseeable risk and one of the risks AWP was hired to

control." In support of their arguments, the Oliphants relied on deposition testimony from

McCants, Moore, Pigman, and Hulme, as well as an affidavit from A. Oliphant, in which she

attempted to explain a statement she made during her deposition. When deposed, A.

Oliphant stated she "still believed" Schuster was to blame for J. Oliphant's injuries.3 In her

affidavit, A. Oliphant states, in pertinent part, as follows:

                2. Prior to the filing of this lawsuit and the information gathered
                in this lawsuit, I was not aware of AWP's duties and obligations
                or what had happened at the work site where [J. Oliphant] was
                injured.

                3. I only knew that Michele Schuster had struck [J. Oliphant] with
                her vehicle while under the influence of Xanax.

3. During A. Oliphant's deposition, which occurred on September 25, 2018, A. Oliphant was asked about who
she blamed for the accident and J. Oliphant's injuries as follows:

[COUNSEL FOR AWP]: Before you ever spoke with any attorneys, in your mind, did you think
AWP did anything wrong?

[A. OLIPHANT]: No, sir.

[COUNSEL FOR AWP]: Before you spoke with any attorneys, did you believe that Michele
Schuster was to blame for all of this?

[A. Oliphant]: Yes.

[COUNSEL FOR AWP]: Do you believe she's still to blame for everything?

[A. Oliphant]: Yes.
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                                                                        Butler CA2019-02-036


              4. During my deposition, I was not asked whether I now believed
              AWP did anything wrong, in light of the information and
              testimony that has been developed in this case.

              5. Based upon the information and testimony that has been
              developed in this case, I now believe AWP did something wrong.
              AWP did not do enough to protect [J. Oliphant] from Michele
              Schuster's out-of-control vehicle. AWP did not keep a look-out
              for out-of-control vehicles or warn [J. Oliphant] of Schuster's out-
              of-control vehicle.

              6. I believe Michele Schuster is to blame for [J. Oliphant's]
              injuries. I believe AWP is also to blame for [J. Oliphant's]
              injuries.

       {¶ 26} AWP filed a reply brief in support of its motion for summary judgment and a

motion to strike A. Oliphant's affidavit on the basis that the affidavit was a sham and was

created solely in an effort to contradict her deposition testimony. After considering the

parties' arguments and the evidence attached to their respective memorandums, the trial

court granted AWP's motion for summary judgment, finding that AWP did not owe a duty of

care to J. Oliphant. In reaching this conclusion, the court found section 6E.07 of OMUTCD

was inapplicable as the AWP employees were not engaged in, nor were they required to be

engaged in, flagging activities at the time of the accident, there was no privity of contract

between Bowlin and AWP as they were independent contractors, AWP had not actively

participated in or controlled Bowlin's work, and there was no "special relationship" between

the parties that would have made AWP liable for a criminal act of a third party. The court

found that its decision to grant summary judgment to AWP rendered AWP's motion to strike

A. Oliphant's affidavit moot.

       {¶ 27} After summary judgment was granted to AWP, the Oliphants, Rooks' estate,

and the OBWC dismissed their respective claims against Bowman and Schuster. The

dismissal of these claims rendered the trial court's decision awarding summary judgment in



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favor of AWP final and appealable. The Oliphants timely appealed the court's decision,

raising the following as their sole assignment of error:

       {¶ 28} THE TRIAL COURT ERRED BY GRANTING SUMMARY JUDGMENT IN

FAVOR OF AWP, INC.

       {¶ 29} The Oliphants argue the trial court erred by granting summary judgment to

AWP on the basis that AWP did not owe a duty to J. Oliphant. Specifically, the Oliphants

contend that pursuant to contractual obligations, AWP owed a duty to J. Oliphant to perform

its services according to the generally accepted standards of care, skill, and diligence in the

traffic control industry and that McCants and Rooks had assumed a duty to protect J.

Oliphant. They further argue issues of fact exist as to whether AWP breached is duty of care

to J. Oliphant and whether J. Oliphant's injuries were proximately caused by this breach.

       {¶ 30} An appellate court reviews a trial court's decision on a motion for summary

judgment de novo, independently and without deference to the decision of the trial court.

Tankersley v. Ohio Fair Plan Underwriting Assn., 12th Dist. Clermont No. CA2018-01-003,

2018-Ohio-4386, ¶ 45. Summary judgment is proper when the pleadings, depositions,

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

stipulations of fact, if any, show that (1) there is no genuine issue as to any material fact, (2)

the moving party is entitled to judgment as a matter of law, and (3) the evidence submitted

can only lead reasonable minds to a conclusion that is adverse to the nonmoving party.

Civ.R. 56(C); Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 66 (1978).

       {¶ 31} The party moving for summary judgment bears the initial burden of informing

the court of the basis for the motion and demonstrating the absence of genuine issues of

material fact. Anderson v. Jancoa Janitorial Servs., 12th Dist. Butler No. CA2019-01-018,

2019-Ohio-3617, ¶ 23, citing Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996). Once this initial

burden is met, the nonmoving party "must then rebut the moving party's evidence with
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                                                                       Butler CA2019-02-036

specific facts showing the existence of a genuine triable issue; it may not rest on the mere

allegations or denials in its pleadings." Deutsche Bank Natl. Trust Co. v. Sexton, 12th Dist.

Butler No. CA2009-11-288, 2010-Ohio-4802, ¶ 7, citing Civ.R. 56(E). Summary judgment is

proper if the nonmoving party fails to set forth such facts. Taylor v. Atrium Med. Ctr., 12th

Dist. Warren No. CA2018-07-074, 2019-Ohio-447, ¶ 10. "In determining whether a genuine

issue of material fact exists, the evidence must be construed in favor of the nonmoving

party." Id.

       {¶ 32} To establish a negligence claim, the plaintiff must demonstrate (1) the

defendant owed the plaintiff a duty of care, (2) the defendant breached the duty of care, and

(3) as a direct and proximate result of the defendant's breach, the plaintiff was injured."

Anderson at ¶ 24, citing Forste v. Oakview Constr., Inc., 12th Dist. Warren No. CA2009-05-

054, 2009-Ohio-5516, ¶ 9. A plaintiff's inability to prove any one of these elements is fatal to

his or her claim of negligence. Capella v. Historic Developers, LLC., 12th Dist. Butler No.

CA2017-07-109, 2018-Ohio-546, ¶ 58.

       {¶ 33} "[W]hether a defendant owes a duty to a plaintiff depends upon the relationship

between them." Hutson v. Konieczny, 52 Ohio St.3d 214, 217 (1990). The determination of

whether a duty exists is question of law for the court to decide. Mussivand v. David, 45 Ohio

St.3d 314, 318 (1989).

       {¶ 34} The Ohio Supreme Court has determined, in a number of negligence cases, the

scope of a contractor's liability. As a general rule, the court has held that "[w]here 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. East Ohio Gas

Co., 160 Ohio St. 103 (1953), paragraph one of the syllabus. Furthermore, "[a] general
                                             - 15 -
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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., 21

Ohio St.3d 110 (1986), syllabus.

       {¶ 35} As particularly relevant to the case before us, the supreme court has addressed

the duty that exists between two independent contractors working on the same project. The

court held that "[a]n 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 v. Natl. Eng. & Contr. Co., 69 Ohio

St.3d 430 (1994), syllabus.

       {¶ 36} The supreme court has defined "active participation" within the context of a

general contractor's involvement in a subcontractor's work, holding that "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." Bond v. Howard Corp., 72 Ohio

St.3d 332, 337 (1995). The court further defined "active participation" within the context of a

property owner's involvement in a contractor's work, stating 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 v.

Ohio Edison Co., 81 Ohio St.3d 628, 643 (1998). The supreme court has not, however,

defined "active participation" as it relates to the relationship between two independent



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contractors engaged in work in an inherently dangerous work environment, such as a utility

construction zone.4

        {¶ 37} This court has previously acknowledged that "[a]pplying the 'active participation'

definition stated in Bond and Sopkovich is often unworkable in situations involving multiple

subcontractors since roles among subcontractors are typically not supervisory in nature."

Nibert v. Columbus/Worthington Heating & Air Conditioning, 12th Dist. Fayette No. CA2009-

08-015, 2010-Ohio-1288, ¶ 22. After all, "[s]ubcontractors are usually employed to perform

separate tasks, but * * * these tasks often overlap in some manner or involve the same

workspace although no supervisory relationship exists." Id. Nonetheless, we found that

subcontractors in a nonsupervisory position can still be found to "actively participate" in the

performance of another subcontractor's work within an inherently dangerous work

environment. See id. Other courts have agreed and held that "[f]or the purposes of

establishing liability to the injured employee of an independent contractor, '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." Pinkerton v. J.&H Reinforcing & Structural Erectors, Inc., 4th Dist. Scioto Nos.

10CA3386 and 10CA3388, 2012-Ohio-1606, ¶ 34. See also Solanki v. Doug Freshwater

Contracting, Inc., 7th Dist. Jefferson No. 06-JE-39, 2007-Ohio-6703. However, where an

independent contractor is engaged in inherently dangerous work and there is no evidence of


4. "Work is inherently dangerous when it creates a peculiar risk of harm to others unless special precautions are
taken." Pusey v. Bator, 94 Ohio St.3d 275, 279 (2002). "[I]t is not necessary that the work be such that it cannot
be done without a risk of harm to others, 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." Id., citing 2 Restatement of the Law 2d, Torts, Section 427, Comment b (1965). The Supreme
Court has recognized that a construction site is an inherently dangerous working environment. See Michaels v.
Ford Motor Co., 72 Ohio St.3d 475, 478 (1995), fn. 4. Courts have further determined that construction that
occurs on a roadway is also inherently dangerous. See, e.g., Cowell v. Ohio Dept. of Transp., Ct. of Cl. No.
2003-09343-AD, 2004-Ohio-151, ¶ 18 (recognizing that roadway construction "contains many dangers, hazards,
and potential for harm not only to workers involved, but to the motoring public"). In the present case, the utility
construction that occurred at Cox Road and Liberty Way, which required lane-closures, constituted inherently
dangerous work.
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active participation by another independent contractor, the duty of ordinary care established

by Kucharski is eliminated "because [the injured independent contractor] should have been

aware of the dangers of his work and protected himself against them." Solanki at ¶ 43-44.

See also Pinkerton at ¶ 25-26. "'[B]ecause the construction site was inherently dangerous,

[the first subcontractor's] active participation was necessary to establish a duty of care to the

[second subcontractor].' * * * To hold otherwise would mean that '[the first subcontractor

would have owed [the second subcontractor] a greater duty of care than an owner, general

contractor, or construction manager would have.'" Ellis v. Time Warner Cable, Inc., 1st Dist.

Hamilton No. C-120083, 2013-Ohio-240, ¶ 10, quoting Pinkerton at ¶ 24 and 26.

       {¶ 38} Turning to the facts of the present case, there is no dispute that AWP and

Bowlin are independent contractors that were separately retained by Duke Energy for work

on the Cox Road Project. AWP was hired to create and maintain a work zone for the Cox

Road Project and Bowlin was hired to install new electrical poles and power lines along Cox

Road. It is further undisputed that the two independent contractors had to work in tandem

with one another to ensure Bowlin was able to complete the utility work for which Duke

Energy had contracted. However, after construing the evidence in favor of the Oliphants, we

cannot conclude that AWP directed or exercised control over J. Oliphant's work activities.

Rather, the deposition testimony and evidence submitted by the parties demonstrates that

Bowlin controlled AWP employees to the extent that Bowlin's foreman, Moore, dictated when

the work zone and associated traffic control would move from point to point as the utility work

progressed on Cox Road. Moore, after determining when road closures needed to occur to

string the electrical wires across Cox Road, directed Bowlin employees and AWP employees

to meet to discuss the next steps in Bowlin's work. Moore determined when and where the

meeting would take place. Moore called a meeting by the side of the Bowlin utility truck

facing the closed southbound lane as he believed it was the "best location" given the weather
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and work environment.           As AWP employees did not direct J. Oliphant or the Bowlin

employees to meet at the side of the utility truck or otherwise give or deny permission for the

huddle, AWP cannot be said to have actively participated in the critical acts that led to J.

Oliphant's injuries.5

        {¶ 39} As already noted, Bowlin's foreman alone made the decision to call the huddle

at the side of the utility truck. AWP personnel were not consulted about this decision. Utility

construction, especially that occurring on or near a roadway is known to be dangerous work.

Deposed Bowlin employees acknowledged that every worker in a work zone had a duty to

watch out for out-of-control vehicles entering the work zone, thereby acknowledging the

dangerous nature of their work. Despite this, the Oliphants assert that certain provisions of

AWP's contract with Duke energy reveal that AWP retained control over safety procedures at

the project site and that Bowlin employees, as workers at the project site, were owed a

general duty of protection through AWP's contract with Duke Energy.

        {¶ 40} The Ohio Supreme Court considered and rejected a similar argument in

Cafferkey, 21 Ohio St.3d at 112-113. In Cafferkey, two employees of an independent

contractor attempted to hold the general contractor liable for injuries the employees

sustained while attempting to install caissons deep in the ground, which was inherently

dangerous work. Id. at 111-112. The employees were severely burned when an explosion of

methane gas occurred as the employees were following the directives of their employer, the

independent contractor. Id. at 111. The employees argued the general contractor was liable

for their injuries as "certain provisions of the contract between [the general contractor] and

[their employer, the independent contractor,] as well as certain portions of [the general


5. We note that the Oliphants have not argued or presented any evidence creating an issue of fact as to whether
AWP set up the work zone in a manner that failed to comply with state or federal laws and regulations. In fact,
the Oliphant's expert testified that the traffic control devices AWP utilized in creating the work zone, such as
traffic cones, caution signs, and the arrow board on the back of AWP's truck, as well as where such devices
were placed, met industry standards and requirements.
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contractor's] safety manual reveal[ed] [the general contractor's] retention and control over

safety procedures at the project site." Id. at 113. The supreme court rejected the argument,

holding that the general contractor

              had an obvious interest in safety and it insisted that its own
              employees as well as the employees of subcontractors carry on
              their work activities in as safe a manner as possible.
              Nevertheless, this concern for safety, which was evidenced in a
              variety of ways, does not constitute the kind of active
              participation in [the independent contractor's] work that is legally
              required to create a duty of care extending from [the general
              contractor] to [the independent contractor's] employees.

              ***

              The contract language pertaining to job safety is nothing more
              than standard "boilerplate" terminology common to virtually all
              construction contracts. [The general contractor] retained the
              ability to monitor and coordinate the activities of all
              subcontractors in order to ensure compliance with the architect's
              specifications. The various contractual rights reserved by [the
              general contractor] did not empower [the general contractor] to
              control the means or manner of [the independent contractor's]
              performance. [The independent contractor] * * * assumed the
              responsibility to construct and install caissons in a sound,
              efficient, and safe manner.

              The details of [the independent contractor's] performance were
              directed and carried out solely by [the independent contractor's]
              employees. [The general contractor] did not direct or interfere
              with [the independent contractor's] work.

Id. at 113.

       {¶ 41} Just like in Cafferkey, the fact that AWP's contract with Duke Energy set forth

certain provisions requiring AWP to utilize and ensure that certain security and safety

procedures were followed so as to achieve a safe and injury free work place did not mean

that AWP was an active participant in Bowlin's work at the time of the accident. The various

contractual rights set forth in AWP's contract with Duke Energy did not give AWP the ability

to control Bowlin's performance within the work zone. Accordingly, we do not find that AWP's



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                                                                        Butler CA2019-02-036

contract with Duke Energy, which set forth certain safety standards, created a duty of care

that extended to J. Oliphant.

       {¶ 42} The Oliphants also argue that AWP owed a duty to J. Oliphant pursuant to

Section 6E.07 of the OMUTCD, which sets forth certain procedures for flaggers to follow

when engaging in temporary traffic control. "[T]he Ohio Legislature adopted the OMUTCD by

promulgating R.C. 4511.09, which required [the Ohio Department of Transportation] to adopt

a 'manual for a uniform system of traffic control devices * * *.'" Orren v. BWF Corp., 12th

Dist. Warren No. CA2013-11-112, 2015-Ohio-62, ¶ 68. "R.C. 4511.11 further establishes a

duty to act in conformity with the OMUTCD's specifications so that the OMUTCD comprises a

section of Ohio law regarding traffic control devices." Id., citing Woods v. Beavercreek, 62

Ohio App.3d 468 (2d Dist.1989).

       {¶ 43} The OMUTCD includes headings that classify and categorize the nature of its

accompanying text. As Section 1A.13 of the manual explains, the text of the OMUTCD is

grouped under headings labeled "Standard," "Guidance," "Option," and "Support."                A

"standard" statement is "a statement of required, mandatory, or specifically prohibitive

practice regarding a traffic control device. * * * The verb 'shall' is typically used. The verbs

'should' and 'may' are not used in Standard statements. * * * Standard statements shall not

be modified or compromised based on engineering judgment or engineering study."

OMUTCD, Section 1A.13. A "guidance" statement is "a statement of recommended, but not

mandatory, practice in typical situations, with deviations allowed if engineering judgment or

engineering study indicates the deviation to be appropriate. * * * The verb 'should' is typically

used. The verbs 'shall' and 'may' are not used in Guidance statements." Id. An "option"

statement is a "statement of practice that is a permissive condition and carries no

requirement or recommendation." Id. A "support" statement is "an informational statement

that does not convey any degree of mandate, recommendation, authorization, prohibition, or
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enforceable condition." Id. Generally, a duty of care exists only where the standards

contained in the state-adopted manual are mandatory or "standard statements." Davis v.

Brown Local School Dist., 7th Dist. Columbiana No. 17 CO 0026, 2019-Ohio-246, ¶ 61. See

also Emmerling v. Mahoning Cty. Bd. of Commrs., 7th Dist. Mahoning No. 15 MA 0165,

2017-Ohio-9066 (finding that the county did not owe a duty of care to a motorcyclist where

the traffic signs at issue were not mandatory under the OMUTCD).

       {¶ 44} Section 6E.07 sets forth certain standards for flagging with a paddle or with a

flag. Section 6E.07 goes on to provide "Guidance" as follows:

              The flagger should stand either on the shoulder adjacent to the
              road user being controlled or in the closed lane prior to stopping
              road users. A flagger should only stand in the lane being used
              by moving road users after road users have stopped. The
              flagger should be clearly visible to the first approaching road user
              at all times. The flagger also should be visible to other road
              users. The flagger should be stationed sufficiently in
              advance of the workers to warn them (for example, with
              audible warning devices such as horns or whistles) of
              approaching danger by out-of-control vehicles. The flagger
              should stand alone, away from other workers, work vehicles,
              or equipment.

(Italics emphasis sic; bold emphasis added.)

       {¶ 45} As noted above, "guidance" statements set forth in the OMUTCD are not

mandatory. Rather, such statements supply a recommended practice. As such, a duty of

care does not arise out of Section 6E.07's "Guidance" section.

       {¶ 46} Moreover, even if we were to find that the "Guidance" statement of Section

6E.07 did create a duty for flaggers, the Oliphants have failed to present any evidence

indicating that an active flagging situation was, or should have been, taking place at the time

of the accident. The OMUTCD sets forth certain situations in which the use of flaggers or

automated flagging assistance devices (AFAD) should be used. See OMUTCD Sections

6C.10 thru 6C.15 (discussing the use of flaggers or AFAD for one-lane, two-way traffic

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control). However, the Oliphants have not identified any standard in the OMUTCD that

requires flaggers to be used when the curbside lane of a multilane road has been closed, but

traffic continues to travel in the same direction in the open lane abutting the median of the

roadway. The Oliphants' expert specifically testified that there was not an active flagging

operation at the time of the accident and that "it was not necessary for flagging activities to

be present or ongoing at [the Cox Road] location as it was laid out." As AWP employees

were neither required nor engaged in an active flagging operation at the time of the accident,

OMUTCD Section 6E.07 is not applicable and does not create a duty of care to J. Oliphant.

       {¶ 47} Finally, the Oliphants argue AWP employees assumed a duty of care when

they joined the huddle called by Moore and stood in a manner that flanked the Bowlin

employees. Specifically, the Oliphants contend that McCants and Rooks "deliberately

positioned themselves in a well-intentioned but misguided effort to 'protect'" the Bowlin

employees from the risks of an out-of-control vehicle as they stood in the work zone and

issues of fact exist as to whether this assumed duty of care was breached. In support of their

argument, the Oliphants rely on the 2 Restatement of the Law 2d, Torts, Section 323 (1965).

       {¶ 48} Section 323 provides that

              [o]ne who undertakes, gratuitously or for consideration, to render
              services to another which he should recognize as necessary for
              the protection of the other's person or things, is subject to liability
              to the other for physical harm resulting from his failure to
              exercise reasonable care to perform his undertaking if

              (a) his failure to exercise such care increases the risk of such
              harm, or

              (b) the harm is suffered because of the other's reliance upon the
              undertaking.

       {¶ 49} "Section 323(a) 'applies only when the defendant's actions increased the risk of

harm to the plaintiff relative to the risk that would have existed had the defendant never

provided the services initially.'" Holcomb v. Holcomb, 12th Dist. Clermont No. CA2013-10-
                                               - 23 -
                                                                         Butler CA2019-02-036

080, 2014-Ohio-3081, ¶ 24, quoting Wissel v. Ohio High School Athletic Assn., 78 Ohio

App.3d 529, 540 (1st Dist.1992).       Or, stated another way, "the defendant's negligent

performance must somehow put the plaintiff in a worse situation than if the defendant had

never begun the performance." Wissel at 540. "To prevail, a plaintiff must 'identify sins of

commission rather than omission.'" Holcomb at ¶ 24, quoting Wissel at 540.

       {¶ 50} Further, "to impose liability under Section 323(b), * * * the plaintiff [must] 'show

actual or affirmative reliance, i.e., reliance based on specific actions or representations which

cause the persons to forego other alternatives of protecting themselves.'" Id. at ¶ 25, quoting

Power v. Boles, 110 Ohio App.3d 29, 36 (10th Dist.1996).

       {¶ 51} In this case, AWP's employees did not assume a duty to protect J. Oliphant as

contemplated by Section 323(a) or (b). There is no evidence that McCants' and Rooks'

decision to flank the Bowlin employees in the huddle put J. Oliphant in a worse position than

he would have been in had McCants and Rooks chosen to stand elsewhere in the huddle.

Regardless of whether McCants' and Rooks' were on the inside or the outside of the huddle,

the inherent danger of an out-of-control vehicle entering the work zone remained the same,

and all workers – AWP and Bowlin employees alike – were aware of this danger and were

responsible for watching out for this threat. Additionally, the Oliphants did not present any

evidence suggesting that J. Oliphant specifically relied on McCants' and Rooks' position in

the huddle to keep him safe or that McCants' and Rooks' positions caused J. Oliphant to

forego some other method of protecting himself.            Deposition testimony that Bowlin

employees relied, generally, on AWP to create and maintain a safe work zone does not

create an issue of fact as to whether J. Oliphant specifically relied on McCants' and Rooks'

position in the huddle for his own safety. Consequently, there is no genuine issue of material

fact regarding whether AWP assumed a duty to J. Oliphant.



                                              - 24 -
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       {¶ 52} Accordingly, for the reasons discussed above, we find that AWP did not owe a

duty of care to J. Oliphant. As there are no genuine issues of material fact regarding any

duty AWP owed to J. Oliphant, any argument as to proximate cause is rendered moot. See

Holcomb, 2014-Ohio-3081 at ¶ 28. AWP has demonstrated it is entitled to judgment as a

matter of law on the Oliphants' negligence and loss of consortium claims. The trial court,

therefore, did not err in granting AWP's motion for summary judgment. The Oliphants' sole

assignment of error is overruled.

       {¶ 53} Judgment affirmed.


       S. POWELL, J., concurs.

       RINGLAND, J., dissents.


       RINGLAND, J., dissenting.

       {¶ 54} I respectfully dissent from the majority's decision. I would find that when the

evidence is looked at in the light most favorable to the Oliphants, the nonmoving parties,

genuine issues of material fact remain regarding whether AWP owed a duty of care to J.

Oliphant and whether that duty was breached. Therefore, I would find the trial court erred by

granting summary judgment to AWP.

       {¶ 55} The majority opinion correctly identifies the development of case law in this

state regarding the scope of a contractor's liability. As it relates to the scope of liability for

general contractors, "[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., 21 Ohio St.3d 110 (1986), syllabus. The

supreme court later extended the Cafferkey decision to independent contractors, holding

"[a]n independent contractor who lacks a contractual relationship with a second independent
                                              - 25 -
                                                                       Butler CA2019-02-036

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 v. Natl. Eng. & Contr. Co., 69 Ohio St.3d 430 (1994),

syllabus.

       {¶ 56} The standard announced in Kucharski is applicable to the instant case since it

involves two independent contractors with no contractual relationship.          See Nibert v.

Columbus/Worthington Heating & Air Conditioning, 12th Dist. Fayette No. CA2009-08-015,

2010-Ohio-1288, ¶ 22. In Nibert, this court reversed a grant of summary judgment in favor of

an independent contractor to determine if there was "active participation" in a worksite for

purposes of establishing the duty element in a negligence action. Id. at ¶ 22. Nibert, which is

factually similar to the case at bar, specifically addressed the difficulty in analyzing cases

involving nonsupervisory contractors:

              Applying the "active participation" definition * * * is often
              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. Surely subcontractors in a nonsupervisory
              position can also "actively participate" in the performance of
              another subcontractor's work and, as such, must exercise a duty
              of ordinary and reasonable care to other subcontractors when
              executing their job functions in an inherently dangerous work
              environment.       To declare otherwise, would allow all
              nonsupervisory subcontractors to complete their work without
              regard for others on the job site.

Id. (Emphasis added).

       {¶ 57} Following review, and construing the evidence in favor of the Oliphants, I

believe the Oliphants have submitted evidence demonstrating a genuine issue of material

fact regarding "active participation" between AWP and Bowlin. Though it is true that Bowlin's

foreman decided when and where the "huddle" meeting was to occur, I would not find that

                                             - 26 -
                                                                         Butler CA2019-02-036

fact to be dispositive in the resolution of this matter. As noted in the majority opinion, AWP

was responsible for creating and maintaining the work zone and for providing traffic control.

McCants, the AWP traffic control specialist, testified that she and Rooks positioned

themselves to protect the huddle and did so because they recognized that the Bowlin

workers were "not safe." Despite that recognition, there is no evidence that AWP employees

attempted to inform those workers of their concerns or suggest an alternative location for the

meeting. As found by the Oliphants' expert, if Bowlin's foreman had been the one to call the

location of the meeting, then "AWP, as the traffic control providers, should have insisted that

a location, other than where they were standing, be found for that meeting, and involve all the

parties there, including the police officer that apparently was in the immediate vicinity, as well

as the other Bowlin employee[s]." Additionally, the Oliphants' expert testified that AWP

breached its standard of care in several respects by failing to perform traffic services within

the work zone in a manner that conformed to generally accepted standards of care in the

industry. Since there are disputed issues of fact, a jury should decide the issue of whether

AWP is liable to the Oliphants for their respective claims for negligence and loss of

consortium. Because the decision to affirm summary judgment does not allow the disputed

issues to be resolved by a jury, I must respectfully dissent.




                                              - 27 -
