[Cite as Bacha v. Sam Pitzulo Homes & Remodeling, L.L.C., 2019-Ohio-878.]




            IN THE COURT OF APPEALS OF OHIO
                            SEVENTH APPELLATE DISTRICT
                                MAHONING COUNTY

                                THOMAS M. BACHA ET AL.,

                                      Plaintiffs-Appellants,

                                                   v.

              SAM PITZULO HOMES & REMODELING, LLC ET AL.,

                                    Defendants-Appellees.


                       OPINION AND JUDGMENT ENTRY
                                       Case No. 17 MA 0097


                                   Civil Appeal from the
                      Court of Common Pleas of Mahoning County, Ohio
                                  Case No. 2016 CV 0823

                                       BEFORE:
  Gene Donofrio, Carol Ann Robb, Judges and Frank D. Celebrezze, Jr., Judge of the
               Eighth District Court of Appeals, Sitting by Assignment.


                                           JUDGMENT:
                                Affirmed in Part. Reversed in Part.
                                            Remanded.


 Atty. Paul Flowers, Terminal Tower, Suite 1910, 50 Public Square, Cleveland, Ohio
 44113, Atty. David Grant, Atty. Frank Gallucci, III, Pelvin & Gallucci Co., L.P.A., 55
 Public Square, Suite 2222, Cleveland, Ohio 44113, Atty. Joseph Schiavoni,
 Schiavoni, Schiavoni, Bush & Muldowney, 87 Westchester Drive, Youngstown, Ohio
 44515, for Plaintiffs-Appellants, and
                                                                                       –2–



 Atty. James Featherstone, 585 South Front Street, Suite 210, Columbus, Ohio 43215,
 Atty. Adam Buente, Manchester Newman & Bennett, The Commerce Building,
 Second Floor, 201 East Commerce Street, Youngstown, Ohio 44503, for Defendants-
 Appellees.

                                         Dated:
                                      March 5, 2019

 Donofrio, J.

       {¶1}   Plaintiffs-appellants, Thomas and Dawn Bacha, appeal the judgment of the
Mahoning County Common Pleas Court granting summary judgment in favor of
defendants-appellees, Sam Pitzulo Homes & Remodeling, LLC and Sam Pitzulo &
Associates General Contractors, Inc., on their claims for negligence, negligence per se,
and loss of consortium.
       {¶2}     In March of 2014, appellees were hired as the general contractors for the
Hoffman-Miller project (the project). The project’s plan was to remodel the hallway and
kitchen of a residential property located in Poland, Ohio. Appellees hired Cusimano
Electric as the subcontractor to complete the necessary electrical work. Cusimano
assigned Thomas Bacha to the project.
       {¶3}     On March 19, 2014, Thomas arrived at the project site at approximately
6:30 a.m. A meeting with all project staff was held at this time where Vincent Moretti,
appellees’ lead carpenter on the project, informed all workers that the floor panels in the
kitchen were going to be removed in order to install insulation in the crawlspace. Aside
from Moretti, appellees had two other employees at the project on this day: Gino Gentile
and Mark Vinion. Thomas was also present at this meeting and heard the announcement
regarding the floorboards being removed.
       {¶4}     At approximately 11:00 a.m., Thomas ascended a six-foot step ladder in
order to split a wire and re-feed a circuit with an additional breaker. This particular task
took place in the kitchen pantry doorway. While Thomas was on the ladder, appellees’
employees began removing the floor panels in the kitchen. The removal of the floor panels
exposed the joists that were supporting the floor. There was a large gap in between each
of the joists. There was also approximately a three-foot drop in between the joists that
ended at the concrete foundation of the home.


Case No. 17 MA 0097
                                                                                      –3–


      {¶5}     One of the removed floor panels was approximately six inches away from
the foot of Thomas’ ladder where he was still working on his rewiring task. When Thomas
descended the ladder, he fell in between the joists and suffered injuries.
      {¶6}     Appellants brought this action against appellees. Thomas asserted claims
of negligence and negligence per se. Dawn, as Thomas’ wife, asserted a claim of loss of
consortium due to the injuries Thomas sustained.
      {¶7}     After discovery was completed, appellees filed a motion for summary
judgment. Appellees argued that they owed Thomas no duty because he was the
employee of an independent contractor. Appellees also argued that they owed no duty to
protect Thomas from hazards which are inherently present due to the nature of
construction work.
      {¶8}     Appellants argued that regulations such as the Occupational Safety and
Health Act (OSHA) imposed a duty on appellees to create and maintain a safe workspace.
Appellants argued that appellees breached that duty by removing the floor panels at the
foot of Thomas’ ladder and such breach was the proximate cause of Thomas’ injury.
Appellants also argued that appellees actively participated in creating the hazard
(removing the floor boards) that injured Thomas.
      {¶9}     In a judgment entry dated May 4, 2017, the trial court granted appellees’
motion for summary judgment. The trial court held that appellees did not owe Thomas a
duty of care because: Thomas was the employee of a subcontractor; Thomas had been
performing construction work for several years which made him aware that construction
sites were dangerous; appellees did not direct or control Thomas; and appellees did not
participate or assist Thomas on the date of his injury. Appellants timely filed this appeal
on June 1, 2017. Appellants now raise a single assignment of error.
      {¶10}    Appellants’ sole assignment of error states:

              THE TRIAL COURT ERRED, AS A MATTER OF LAW, BY
      GRANTING SUMMARY JUDGMENT AGAINST PLAINTIFF-APPELLANTS
      UPON THEIR PERSONAL INJURY CLAIM AGAINST DEFENDANT-
      APPELLEES [JUDGMENT ENTRY DATED MAY 4, 2017].




Case No. 17 MA 0097
                                                                                         –4–


       {¶11}   Appellants argue that summary judgment in favor of appellees on both
their negligence and negligence per se claims was improper. Appellants argue that
appellees had a common law and statutory duty to maintain a safe workspace for all of
the people present at the project. Appellees’ employees breached that duty when they
removed the floorboard at the base of Thomas’ ladder without informing him that that
specific panel was removed and that such breach proximately caused Thomas’ injuries.
       {¶12} An appellate court reviews a trial court’s summary judgment decision de
novo, applying the same standard used by the trial court. Ohio Govt. Risk Mgt. Plan v.
Harrison, 115 Ohio St.3d 241, 2007-Ohio-4948, 874 N.E.2d 1155, ¶ 5. A motion for
summary judgment is properly granted if the court, upon viewing the evidence in a light
most favorable to the nonmoving party, determines that: (1) there are no genuine issues
as to any material facts; (2) the movant is entitled to judgment as a matter of law, and (3)
the evidence is such that reasonable minds can come to but one conclusion and that
conclusion is adverse to the opposing party. Civ.R. 56(C); Byrd v. Smith, 110 Ohio St. 3d
24, 2006-Ohio-3455, 850 N.E.2d 47, ¶ 10.
       {¶13} “[T]he moving party bears the initial responsibility of informing the trial court
of the basis for the motion, and identifying those portions of the record which demonstrate
the absence of a genuine issue of fact on a material element of the nonmoving party’s
claim.” Dresher v. Burt, 75 Ohio St.3d 280, 296, 662 N.E.2d 264 (1996). The trial court’s
decision must be based upon “the pleadings, depositions, answers to interrogatories,
written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if
any, timely filed in the action.” Civ.R. 56(C). The nonmoving party has the reciprocal
burden of specificity and cannot rest on the mere allegations or denials in the pleadings.
Id. at 293.
       {¶14}   Summary judgment is appropriate when there is no genuine issue as to
any material fact. A “material fact” depends on the substantive law of the claim being
litigated. Hoyt, Inc. v. Gordon & Assoc., Inc., 104 Ohio App.3d, 598, 603, 662 N.E.2d 1088
(8th Dist. 1995), citing Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 247-248, 106 S.Ct.
2505, 91 L.Ed.2d 202 (1986).
       {¶15} We will first address appellants’ negligence claim. “The elements of a
negligence claim are: (1) the existence of a duty owed by the defendant to the plaintiff;



Case No. 17 MA 0097
                                                                                         –5–


(2) breach of that duty; (3) harm to the plaintiff caused by the breach; and (4) damages.”
Lagowski v. Shelly & Sands, Inc., 7th Dist. No. 13 BE 21, 2015-Ohio-2685 ¶ 7 citing
Anderson v. St. Francis-St. George Hosp., Inc., 77 Ohio St.3d 82, 84, 671 N.E.2d 225
(1996). “Whether the defendant owes a duty to the plaintiff presents a legal question that
depends upon the foreseeability of the plaintiff’s injuries.” Id. citing Menifee v. Ohio
Welding Products, 15 Ohio St.3d 75, 77, 472 N.E.2d 707 (1984). “An injury is foreseeable
if a reasonably prudent person would have anticipated that any injury was likely to result
from the performance or nonperformance of an act.” Id.
       {¶16}    The relationship between appellees and Thomas was general contractor
and the employee of a subcontractor. As such, the doctrine of active participation applies
in order to determine if appellees owed Thomas a duty.
       {¶17} The Ohio Supreme Court clarified the doctrine of active participation in Bond
v. Howard Corp., 72 Ohio St.3d 332, 650 N.E.2d 416 (1995). In Bond, the Court defined
actively participated as “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.” Id. at
337. The Court also held that in order for a general contractor to be liable for the injury to
the employee of an independent contractor, the general contractor must actively
participate in that injury. See Id. at 333-337.
       {¶18}    The crux of appellees’ argument and the trial court’s ruling is that because
appellees did not direct the activities that lead to Thomas’ injuries, they did not owe
Thomas a duty of care. This argument has merit.
       {¶19}    Thomas was not appellees’ employee, he was an employee of Cusimano
Electric. (Bacha Dep. 66). Moretti testified that, whenever appellees used subcontractors,
the subcontractors and appellees’ employees were in charge of their respective tasks.
(Moretti Dep. 13-14). Thomas also testified that his boss was Frank Cusimano. (Bacha
Dep. 64-65). There is nothing in the record that indicates appellees or their employees
were directing Thomas’ work or gave or denied Thomas permission for the critical acts
that led to his injuries. Pursuant to Bond, appellees did not actively participate in Thomas’
injuries.




Case No. 17 MA 0097
                                                                                        –6–


       {¶20}   But appellants argue that an exception to the active participation doctrine
applies because appellees controlled the critical variable, the removed floorboard near
Thomas’ ladder, which resulted in Thomas’ injuries. “By retaining sole control over a
critical variable in the working environment, a property owner can have as much influence
over an employee's safety as when the property owner directly controls the activities of
the employee. Thus, it follows that the property owner owes a duty of care to an employee
of the independent contractor when the owner exerts or retains such control.” Sopkovich
v. Ohio Edison Co., 81 Ohio St.3d 628, 634, 693 N.E.2d 233 (1998).
       {¶21} Appellants argue that this case is analogous to a decision from the Eighth
District, Chlopecki v. Gilbane, 8th Dist. No. 98476, 2012-Ohio-6142. In Chlopecki, Gilbane
was the general contractor on a construction site while Lorene Chlopecki was employed
by an electrical subcontractor. Id. at ¶ 6. Lorene’s task was to install smoke detectors. Id.
This task required Lorene to be on a scaffold that had wheels that was furnished by her
employer. The construction site had numerous holes in the floor as the result of ongoing
installation of various systems. Id. at ¶ 8. These holes were covered with unsecured
pieces of plywood which were spray painted fluorescent orange with the word “hole.” Id.
       {¶22}   One day, Lorene was on top of the scaffold and was looking for a worker
to push her to the next installation site. Id. at ¶ 9. While Lorene was looking for a worker,
the scaffold rolled over to one of the holes in the floor. Id. The plywood covering this hole
shifted and the scaffold’s wheel got caught in a crack in the floor, causing the scaffold to
tip over. Id. Lorene brought a negligence action against Gilbane and the trial court
eventually granted summary judgment in favor of Gilbane without an opinion. Id. at ¶ 1.
       {¶23}   On appeal, the Eighth District held that “none of the evidence showed that
Gilbane exercised any degree of control over Lorene's performance of her duties.” Id. at
¶ 10. But the Eighth District held:

       Gilbane did, however, exercise control over a “critical variable” of the
       workplace—the placement of the plywood boards covering the open holes
       on the floor. Gilbane understood that the placement of the boards posed a
       safety hazard. It specifically wrote a warning on the plywood and conducted
       safety meetings at which it warned employees that it had placed plywood
       over the holes in the floor. Having undertaken to place the plywood, Gilbane


Case No. 17 MA 0097
                                                                                       –7–


       was responsible for any negligence in how the plywood was placed. It
       admittedly chose not to fasten the plywood to the floor with screws lest the
       floor itself be damaged. Reasonable minds could differ on whether Gilbane
       exercised reasonable care in choosing not to fasten the plywood to the floor
       and whether it exercised reasonable care to ensure that the plywood was
       sufficiently anchored to the ground to prevent it from moving.

Id. at ¶ 11.
       {¶24}   Applying Chlopecki, appellees owed a duty to Thomas as they controlled
the critical variable. Appellees’ employees understood that the removal of the floorboards
posed a safety hazard. Appellees’ employees held a meeting at the beginning of the day
where Moretti informed everyone that the floorboards were being removed. (Bacha Dep.
73). While Thomas did have general knowledge that appellees’ employees were
removing floorboards, there is a genuine issue of material fact as to whether Thomas
knew that the specific floorboard near his ladder was removed.
       {¶25}   Thomas testified that he told Vinion not to move the floorboards near his
work area. (Bacha Dep. 79-80). Thomas testified that he had no knowledge that the
floorboard near his ladder was being or had been removed. (Bacha Dep. 81). While Vinion
testified that someone informed Thomas that the floorboard near Thomas’ ladder was
being removed, he does not know who told Thomas about the floorboard. (Vinion Dep.
41). Gentile also does not recall if anyone told Thomas that the specific floorboard near
Thomas’ ladder was being removed. (Gentile Dep. 28-30).
       {¶26}   Appellees argue that the critical variable analysis outlined in Chlopecki
does not apply. Appellees argue that in Chlopecki, the critical variable was the general
contractor’s negligent covering of the holes but no such hidden variable exists in this case
because Thomas was aware that the plywood panels were being removed. Appellees
argue that the critical act was in Thomas’ control because Thomas was able to safely
descend the ladder.
       {¶27}   Thomas testified that the materials he needed for his task were in the living
room. (Bacha Dep. 89). He testified that he descended the ladder, placed both feet on
the floor behind his ladder, and turned to his left to take a step. (Bacha Dep. 89-90).
Thomas testified that he then “[t]urned to my left, and as I turned, I looked and took a


Case No. 17 MA 0097
                                                                                       –8–


step, and there was no floor.” (Bacha Dep. 89). Based on this testimony, there is a
genuine issue of material fact concerning whether Thomas was aware of the floor
openings. While Thomas was able to step off of the ladder safely, he testified that he did
not notice the removed floor panel until he was mid step. Moreover, there is a genuine
issue of material fact as to whether Thomas was notified that the specific floor panel at
the foot of his ladder was to be removed or had been removed.
       {¶28}    Appellees also argue that numerous other cases contradict appellants’
arguments and apply the active participation requirement to cases such as this. In
McClary v. M/I Schottenstein Homes, Inc., 10th Dist. No. 03AP-777, 2004-Ohio-7047, a
subcontractor’s employee fell through an open stairwell at a construction site and died as
a result. Id. at ¶ 3. The employee’s estate brought a negligence action against the general
contractor. Id. at ¶ 4.
       {¶29}    When analyzing whether the general contractor controlled the critical
variable (the open stairwell), the Tenth District analyzed deposition testimony which
revealed that the general contractor employed an auditor to perform “sporadic safety
audits and [check] construction sites to determine whether these sites complied with
OSHA regulations.” Id. at ¶ 40. But deposition testimony also revealed that the auditor did
not inspect the open stairwell at issue. Id. The Tenth District concluded that because the
auditor did not inspect the open stairwell, the general contractor did not exercise control
over the open stairwell critical variable. Id. ¶ 42-43.
       {¶30}    The case at bar is distinguishable from McClary. In this case, appellees’
employees were removing the floor boards which exposed the joists. (Vinion Dep. 40-41).
The removal of the floorboards is the critical variable and it was under appellee’s control.
In McClary, no employee of the general contractor inspected the open stairwell critical
variable.
       {¶31}    Appellees also argue Baker v. Coast to Coast Manpower, LLC, 3d Dist.
No. 5-11-36, 2012-Ohio-2840 contradicts appellants’ critical variable argument. In Baker,
Baker was a truck driver working for Coast to Coast, a subcontractor of Best Buy. Id. at ¶
2. One day, Baker cut a cable seal on his truck’s trailer at a Best Buy distribution center.
Id. The cable struck Baker in the eye and Baker filed an action against Best Buy for,
among other things, negligence. Id. at ¶ 3. The trial court granted summary judgment in



Case No. 17 MA 0097
                                                                                        –9–


favor of Best Buy on Baker’s negligence claim finding Best Buy did not owe Baker a duty
of care. Id. at ¶ 4.
       {¶32}    On appeal, the Third District held that summary judgment was proper
because Best Buy did not actively participate in Baker’s injury. Id. at ¶ 27-33. The Third
District affirmed summary judgment on the negligence claim against Best Buy because:
Best Buy never trained Coast to Coast’s employees, Best Buy solely relied on Coast to
Coast to perform its functions, Baker was told to bring any concerns to Coast to Coast
employees, and Best Buy did not have specific control over the specific activity giving rise
to Baker’s injury. Id. at ¶ 27-29. But the Third District in Baker did not perform a critical
variable analysis.
       {¶33}    Baker is also distinguishable because it dealt with a truck driver breaking
a seal on his own truck and not a construction site. The critical variable test would not
apply because the only involvement Best Buy had in Baker was that it owned the
distribution center where the injury occurred. The only control Best Buy had was making
everyone, including employees of independent contractors, wear orange vests while on
site. Id. at ¶ 29. In this case, appellees’ employees removed a plywood floor panel at the
foot of Thomas’ ladder which implicates a critical variable analysis.
       {¶34}    Appellants also argue that Barnett v. Beazer Homes Invests., L.L.C., 180
Ohio App.3d 272, 905 N.E.2d 226, 2008-Ohio-6756 (12th Dist.2008), applies to its critical
variable argument. In Barnett, Barnett was a subcontractor to Beazer, the owner and
general contractor. Id. at ¶ 2. Barnett was installing gutters on a home that Beazer both
owned and was the general contractor. Id. While installing a portion of the gutters, the
gutters came into contact with an active power line which injured Barnett. Id. at ¶ 3.
Neither Barnett nor another subcontractor helping Barnett noticed the power line prior to
Barnett’s shock. Id.
       {¶35}    Barnett brought a negligence action against Beazer alleging Beazer owed
him a duty to maintain the premises in a safe condition and warn him about the power
line. Id. at ¶ 4. The trial court granted summary judgment in favor of Beazer holding that
Beazer owed no duty to Barnett because he was engaged in inherently dangerous work
and because the power line hazard was open and obvious. Id.




Case No. 17 MA 0097
                                                                                        – 10 –


       {¶36}    On appeal, the Twelfth District held that Beazer did not actively participate
in Barnett’s injuries because Beazer only maintained a general supervisory role over
Barnett’s activities. Id. at ¶ 19. But the Twelfth District held that reasonable minds could
conclude that Beazer controlled the critical variable, contacting the energy company in
order to have the line de-energized. Id. at ¶ 25. The Twelfth District also noted that the
evidence indicated Beazer was the only party that knew of the hazard of the line and the
need to contact the energy company to have it de-energized. Id.
       {¶37}    Appellees argue that Barnett is factually distinguishable from the case at
bar. Appellees argue that Beazer had complete control over de-energizing the power line.
Appellees argue this fact distinguishes the case at bar because Thomas had knowledge
that the floor panels were being removed and the fact that the floor panels were removed
was open and obvious. But the fact that the hazard was potentially open and obvious was
also addressed in Barnett. Barnett testified that nothing obstructed his view of the power
lines and if he had looked up, he would have seen the wires. Id. at ¶ 33.
       {¶38}    Chlopecki and Barnett are persuasive. Genuine issues of material fact
exist in this case as to whether appellees were in control of the critical variable that led to
Thomas’ injury and as to whether Thomas had knowledge of the removal of the floorboard
under his ladder. Because genuine issues of material fact exist, the trial court erred in
granting summary judgment in favor of appellees on appellants’ negligence claim.
       {¶39}    Appellants also argue that the frequenter statute codified at R.C. 4101.11
imposes a duty on appellees. “Every employer * * * shall furnish a place of employment
which shall be safe for the employees therein and for frequenters thereof * * * and shall
do every other thing reasonably necessary to protect the life, health, safety, and welfare
of such employees and frequenters.” R.C. 4101.11.             This court has held that the
frequenter statute does not impose a duty when the subcontractor is in an inherently
dangerous setting. Salanki v. Doug Freshwater Contracting, Inc., 7th Dist. No. 06-JE-39,
2007-Ohio-6703, ¶ 54-58. An active construction site is an inherently dangerous setting.
Id. Because Thomas was injured at an active construction site, the frequenter statute
does not impose a duty on appellees.
       {¶40}    Next, appellants argue that the trial court erred when it granted summary
judgment on their negligence per se claim. In order for a statute to impose negligence per



Case No. 17 MA 0097
                                                                                     – 11 –


se, the statutory requirement must be stated with sufficient specificity. Sikora v. Wenzel,
88 Ohio St.3d 493, 496, 727 N.E.2d 1277 (2000). Normally, when a legislative enactment
imposes a specific duty for the safety of others, a violation of that statute constitutes
negligence per se. Chambers v. St. Mary’s School, 82 Ohio St.3d 563, 565, 697 N.E.2d
198 (1998).
       {¶41} Appellants argue that appellees owed Thomas a duty under various OSHA
regulations. Specifically, appellants point out the following regulations: 29 C.F.R. 1926.16
(Rules of Construction), 29 U.S.C. 654(a) (Duties of Employers and Employees), and 29
C.F.R. 1910.22 (General Requirements [regarding walking and working surfaces]).
       {¶42}   The Ohio Supreme Court has held that “a violation of OSHA does not
constitute negligence per se.” Hernandez v. Martin Chevrolet, Inc., 72 Ohio St.3d 302,
649 N.E.2d 1215 (1995). Thus, the trial court properly granted appellees’ motion for
summary judgment on appellants’ negligence per se claim.
       {¶43}   Accordingly, appellants’ sole assignment of error has merit in part as it
pertains to their negligence claim and is sustained in part.
       {¶44}   For the reasons stated above, the trial court’s judgment on appellants’
negligence per se claim is hereby affirmed. The trial court’s judgment on appellants’
negligence claim is hereby reversed and this cause is remanded for further proceedings
pursuant to law and consistent with this opinion.



Robb, J., concurs

Celebrezze. J., concurs




Case No. 17 MA 0097
[Cite as Bacha v. Sam Pitzulo Homes & Remodeling, L.L.C., 2019-Ohio-878.]




         For the reasons stated in the Opinion rendered herein, appellants’ sole
 assignment of error has merit in part and is sustained in part. It is the final judgment
 and order of this Court that the judgment of the Court of Common Pleas of Mahoning
 County, Ohio, is affirmed as to appellants’ negligence per se claim. The judgment is
 reversed as to appellants’ negligence claim and appellants’ loss of consortium claim.
 This matter is hereby remanded to the trial court for further proceedings on appellants’
 negligence claim according to law and consistent with this Court’s Opinion. Costs to be
 taxed against the Appellee.


         A certified copy of this opinion and judgment entry shall constitute the mandate
 in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that
 a certified copy be sent by the clerk to the trial court to carry this judgment into
 execution.




                                      NOTICE TO COUNSEL

         This document constitutes a final judgment entry.
