Lucio, et al. v. Edw. C. Levy Co. et al

Filing 72

Memorandum and Order: Levy's motion to exclude Wright's testimony is granted with respect to Sections (A)(2)-(A)(11), (B)(1), and (C). All statements made in the remaining Sections (A)(1) and (B)(2) regarding intent or state of mind are also inadmissible. Both Defendants motions for summary judgment are granted. re 46 49 64 Judge Jeffrey J. Helmick on 5/10/2017. (S,AL)

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION

Theodore Lucio, et al.,

Case No. 15-cv-613
Plaintiffs

v.

MEMORANDUM OPINION

Edw. C. Levy Co, et al.,
Defendants

I.

INTRODUCTION

The matter before me arises out of an injury sustained by Plaintiff Theodore Lucio from a
fall from an unguarded screen deck of a slag plant tower. Plaintiff Theodore Lucio asserts claims of
negligent and defective design and construction, negligence, and products liability. (Doc. No. 23).
Plaintiff Stephanie Lucio asserts a derivative claim of lack of consortium.
There are three motions pending: (1) Defendant Edw. C. Levy Co.’s motion to exclude
Plaintiff’s expert, Michael Wright (Doc. No. 64); (2) Defendant Edw. C. Levy Co.’s motion for
summary judgment (Doc. No. 46); and (3) Defendant North Star Bluescope Steel, LLC’s motion for
summary judgment (Doc. No. 49). Plaintiffs have responded to all motions (Doc. Nos. 57, 59, 67),
and Defendants have replied, in turn. (Doc Nos. 63, 65, 70).
For the reasons stated below, Levy’s motion to exclude Wright’s testimony is granted in part
and both Defendants’ motions for summary judgment are granted in full.

II.

BACKGROUND

On February 25, 2013, Plaintiff Theodore Lucio fell approximately 25 feet from the top of a
slag tower while changing a screen during his course of employment. (Doc. No. 23 at 3-4). At the
time, he was employed by Levy Environmental Services, doing business as Fulton Mill Service
Company (“FMS”). Id. at 2-3. Lucio sustained serious injuries and filed suit against several parties,
including FMS. Lucio v. Levy Environmental Services Co., 173 F.Supp.3d 558 (N.D. Ohio 2016), aff’d
Lucio v. Levy Environmental Services Co., --Fed. App’x --, 2016 WL 6994230 (6th Cir. Nov. 30, 2016).
Neither Defendant in this case was a party to the previous action. On March 22, 2016, Judge James
G. Carr granted summary judgment to Levy Environmental Services (FMS) for the intentional tort
claim asserted by Lucio. Id. As noted by all parties, the circumstances surrounding Lucio’s fall from
the tower were fully developed and explained during the previous case and I incorporate by this
reference Judge Carr’s summary. See Lucio, 173 F.Supp.3d at 561-63.
At issue now is the alleged liability of Defendants Edw. C. Levy Co. (“Levy”) and North Star
Bluescope Steel, LLC (“NSBS”) with respect to Lucio’s 2013 fall. The tower in question was a part
of a slag plant designed and built by Levy on the property of NSBS. (Doc. No. 47). When
construction of the plant was completed in 1996 or 1997, FMS took ownership of the slag plant
pursuant to the Slag Handling and Mill Services Agreement (“1996 Agreement”). (Doc. Nos. 47, 47-1).
The 1996 Agreement established a business relationship between FMS and NSBS. Id. Two other
documents were incorporated into the 1996 Agreement: (1) Performance and Payment Guaranty
(“Guaranty”); and (2) Slag Handling and Mill Services Contract Specifications (“Contract Specifications”).
(Doc. Nos. 47-1, 47-3, 47-4).
The Guaranty designated Levy as the “Guarantor” of all of FMS’s obligations to NSBS under
the 1996 Agreement. (Doc. No. 47-3). The Contract Specifications provided policy goals and a more
detailed explanation of the obligations and purpose of the 1996 Agreement. (Doc. No. 47-4). In
2010, FMS and NSBS executed the First Amended and Restated Slag Handling and Mill Services Agreement
2

(“Amended Agreement”). (Doc. No. 47-2). The terms of the Amended Agreement were similar to that of
the 1996 Agreement, but did not reference the Guaranty. Id. Neither Defendant contends that the
Guaranty was revoked by the Amended Agreement, which was in place at the time of Lucio’s fall.
At that time of the fall, NSBS owned the compound of fenced-in property that held the
FMS slag plant and NSBS’s own steel mill. Pursuant to the Amended Agreement, FMS served as an
independent contractor to NSBS, providing the NSBS steel mill with slag from its own plant on the
property. (Doc. No. 47-1). Levy guaranteed FMS’s performance of the contract to NSBS. (Doc.
No. 47-3). FMS was an affiliate or subsidiary company of Levy. (Doc. No. 47, Doc. No. 60 at 11).
III.

MOTION TO EXCLUDE EXPERT TESTIMONY

A witness must be qualified “by knowledge, skill, experience, training, or education” to
testify. Fed. R. Evid. 702. Before admitting expert testimony, the court “must determine whether
the testimony has ‘a reliable basis in the knowledge and experience of [the relevant] discipline.’”
Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 149 (1999) (quoting Daubert v. Merrell Dow Pharm., Inc.,
509 U.S. 579, 592 (1993) (alteration in original)). In this case, Michael Wright is a licensed
Professional Engineer, Certified Safety Professional, and Certified Plant Engineer. (Doc. No. 57-1).
There is no dispute that he is qualified to testify about matters involving those disciplines.
Testimony of a qualified witness is admissible only if it is both relevant and reliable. See Fed
R. Evid. 702; Bradley v. Ameristep, Inc., 800 F.3d 205, 208 (6th Cir. 2015); United States v. Cunningham,
679 F.3d 355, 379-80 (6th Cir. 2012). Relevant testimony “will help the trier of fact to understand
the evidence or to determine a fact in issue.” Fed R. Evid. 702 (a); Daubert, 509 U.S. at 591;
Cunningham, 679 F.3d at 380. Reliability depends on “whether the reasoning or methodology
underlying the testimony is scientifically valid and [ ] whether that reasoning or methodology
properly can be applied to the facts in issue.” Daubert, 509 U.S. at 592-93. An expert’s knowledge
need not be “scientific” in nature, but could also be “technical” or “other[wise] specialized.” Kumho
Tire, Ltd., 526 U.S. at 141. As noted by the Supreme Court, the test of reliability is “flexible,” and
3

“the law grants a district court…broad latitude when it decides how to determine reliability.” Kumho
Tire, Ltd., 526 U.S. at 141-42 (citing Gen. Elec. Co. v. Joiner, 522 U.S. 136, 143 (1997)); see also Daubert,
509 U.S. at 594.
As a gatekeeper, the court must determine whether the party offering the expert as a witness
has proven the expert’s proposed testimony admissible. Daubert, 509 U.S. at 592 n.10. “But
‘rejection of expert testimony is the exception rather than the rule.’” In re Scrap Metal Antitrust Litig.,
527 F.3d 517, 530 (6th Cir. 2008) (quoting Fed. R. Evid. 702 advisory committee’s notes, 2000
amend.).
Levy asserts that Wright’s testimony should be excluded because: (1) it contradicts
statements Lucio made in his reply to Levy’s motion for summary judgment; (2) the statements
regarding OSHA are irrelevant to negligence; (3) the testimony improperly renders legal conclusions
about the interpretation of contracts; and (4) the testimony improperly renders opinions on Levy’s
intent. (Doc. No. 64-1).
A.

Sections (A)(1) and (B)(2)
At the outset, Levy asserts that certain portions of these sections are inadmissible as

improper testimony of intent. I agree. As noted by Judge Carr in Lucio’s previous case,
Expert testimony as to intent, motive, or state of mind offers no more than the
drawing of an inference from the facts of the case. The jury is sufficiently capable of
drawing its own inferences regarding intent, motive, or state of mind from the
evidence, and permitting expert testimony on this subject would be merely
substituting the expert's judgment for the jury's and would not be helpful to the jury.
Lucio, 173 F. Supp.3d at 565 (citation omitted); see also CMI-Trading, Inc. v. Quantum Air, Inc., 98 F.3d
887, 890 (6th Cir. 1996) (“The intent of the parties is an issue within the competence of the jury and
expert opinion testimony will not assist the jury, within the meaning of Federal Rule of Evidence
702, in determining the factual issue of intent.”). Accordingly, I find all statements within Wright’s
testimony regarding state of mind or intent to be irrelevant and inadmissible.

4

With respect to the remaining content of Sections (A)(1) and (B)(2), it is true that Wright’s
testimony does not support a finding that the slag mill is a product for purposes of products liability.
But, as with any witness, the testimony given need not support the calling party’s case in full.
Additionally, the mere fact that Wright is admittedly unqualified to determine whether the slag mill is
a product or an improvement does not negate his ability to testify about industry regarding safety
and design. (Doc. No. 67-1). The issue of inconsistency among the claims will be addressed below,
but I do not find it to be grounds to exclude Sections (A)(1) or (B)(2) of Wright’s expert report.
Further, Levy has failed to cite any legal authority to support this argument. Therefore, Sections
(A)(1) and (B)(2) may only be excluded if they are either irrelevant or unreliable; Levy argues
irrelevance.
Section (A)(1), entitled, “Standard and Industry Practice of a Normal Contractor, Including a
Design-Building Entity,” provides information about the industry standards with respect to safety
considerations. Wright articulated industry standards and practices and referenced state and federal
law. Wright applied these standards to form his opinion on Levy’s compliance with industry safety
standards. The statements made in this section assist the trier of fact in determining whether Levy’s
conduct was negligent or within the bounds of industry standards.
Section (B)(2) discusses the design and construction of the slag plant. Wright specifically
describes the safety features that were not—and could or should have been—included in the design
of the tower. To form his opinion, Wright analyzed the facts in light of state and federal law and
industry standards. These matters aid the trier of fact in determining whether the plant was
negligently designed and constructed.
Both Sections (A)(1) and (B)(2) are within Wright’s expertise as an engineer and safety
professional. Since I find both sections to be relevant and Levy has not made any argument that the
sections are unreliable, I find the sections admissible with the exception of statements of state of
mind or intent.
5

B.

OSHA Testimony in Section (A)
Levy moved to exclude “Section (A)(2)” of Wright’s report by way of heading in its

memorandum. (Doc. No. 64-1 at 8). But after review of the argument, I believe the argument
under the heading encompasses both the Policy articulated in Section (A)(2) and Wright’s analysis
and conclusion based on the policy in Sections (A)(3)- (A)(11). As Sections (A)(3)- (A)(11) are
dependent upon the inclusion of Section (A)(2), I will address all as one.
Wright’s expertise extends to engineering and safety management. While Section (A)(2) is an
OSHA policy, it does not relate to engineering principles or safety requirements. Instead it describes
the allocation of duty and responsibility among employers at a multi-employer work site. Wright
concluded that, based on this policy, Levy was a prime and controlling entity who actively
participates. Relying on this conclusion, Wright determined that Levy both had and failed to fulfill
its safety obligations at the slag plant. I do not find Wright is qualified to make these assertions.
Though he may have had experience with multi-employer work sites, the interpretation of the
OSHA policy and allocation of duty and fault is a matter of law, not engineering or plant safety.
Assuming for the sake of argument that Wright was qualified to give these opinions, Section
(A)(2) and the following analysis is irrelevant. In addressing the issuance of relevance Lucio asserts,
“the existence of applicable OSHA violations do not establish a duty,” acknowledging that there is
no private cause of action under OSHA. (Doc. No. 67 at 11-13). Instead, he contends “[t]he
various regulatory schemes analyzed by Mr. Wright serve to provide context.” Id. at 12. But if not
to speak to the issue of duty of care, I do not see the “context” those sections are intended to
provide. Since Lucio has failed to establish that these sections would help the trier of fact determine
any fact in issue, Sections (A)(2)- (A)(11) are irrelevant.
Even if the testimony were relevant to any fact at issue and Wright was qualified to give it, I
find the unreliable nature of the testimony grounds for exclusion. In forming his opinions, Wright
reviewed “available discovery documents, depositions, witness accounts, case photographs and other
6

related documents, along with applicable ANSI construction safety standards, OSHA construction
regulations, and other possible federal and construction industry safety regulations.” Rather than
supporting his conclusion with technical or specialized knowledge, Wright paraphrased depositions
and facts already in evidence. Wright’s reiteration of the record and brief conclusions do not evince
any specialized knowledge, but instead simply act to include inapplicable state and federal law. I find
these conclusions unhelpful and, at times, potentially confusing to a trier of fact.
Although I have no doubt that Wright is qualified to testify as to certain topics, I do not find
an analysis of Levy’s control to be within the bounds of his expertise. In addition to finding Wright
unqualified to make these assertions, Lucio has failed to point to any fact at issue to which these
sections relate. Because Sections (A)(2)-(A)(11) are not relevant or reliable, they are inadmissible.
C.

Section (B)(1)
In Section (B)(1), Wright opines on the contractual obligations of Levy. Experts are

permitted to testify on contract interpretation only when there is a “need to clarify or define terms
of art, science, or trade.” TCP Indus., Inc. v. Uniroyal, Inc., 661 F.2d 542, 549 (6th Cir. 1981); N. Am.
Specialty Ins. Co. v. Myers, 111 F.3d 1273, 1281 (6th Cir. 1997). Since that is not the case here and
Lucio makes no argument to contest the exclusion, Section (B)(1) is excluded.
D.

Section (C)
Section (C) of the report concludes Wright’s report with respect to Levy. The contents of

the section are primarily dedicated to Wright’s opinion of Levy’s control of the slag plant. Since I
previously determined Sections (A)(2)-(A)(11) regarding control to be inadmissible, Section (C) must
be excluded as well.
IV.

MOTIONS FOR SUMMARY JUDGMENT

Summary judgment is appropriate if the movant demonstrates there is no genuine dispute of
material fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).
All evidence must be viewed in the light most favorable to the nonmovant, White v. Baxter Healthcare
7

Corp., 533 F.3d 381, 390 (6th Cir. 2008), and all reasonable inferences are drawn in the nonmovant’s
favor. Rose v. State Farm Fire & Cas. Co., 766 F.3d 532, 535 (6th Cir. 2014). A factual dispute is
genuine if a reasonable jury could resolve the dispute and return a verdict in the nonmovant’s favor.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A disputed fact is material only if its
resolution might affect the outcome of the case under the governing substantive law. Rogers v.
O’Donnell, 737 F.3d 1026, 1030 (6th Cir. 2013).
A.

Products Liability
By definition, a product is an object: (1) “capable of delivery itself, or as an assembled whole

in a mixed or combined state, or as a component or ingredient;” (2) “produced, manufactured, or
supplied for introduction into trade or commerce;” and (3) “intended for sale or lease to persons for
commercial or personal use.” O.R.C. § 2307.71(A)(12)(a). Under O.R.C § 2307.75(A), in order to
succeed on a products liability claim, the object must be a product and have “left the control of its
manufacturer.” At the outset, I note this claim is at odds with Lucio’s remaining claims which
depend upon Levy’s alleged control of the slag plant. Nevertheless, I will analyze the products
liability claim independently.
The purpose of a products liability cause of action is to “promote product safety” by
providing “manufacturers [with] a strong incentive to design, manufacture, and distribute safe
products.” Queen City Terminals, Inc. v. Gen. Am. Transp. Corp., 73 Ohio St. 3d 609, 621 (1995). As a
matter of policy, a manufacturer who designs and distributes a product is in a better position to
assume and mitigate risks than the general consumer. Id. In addition, the strict liability nature of
this cause of action is intended to protect multiple consumers in the general public from the cost of
litigating against a large manufacturer who has put the defective product into the stream of
commerce. Id. The purpose is not realized when a “product” is designed not for sale to the general
public, but instead “coaxed into the market by its consumers.” Id. at 622.

8

In Queen City, the consumer was involved throughout the manufacturing process of the
custom-made product produced to meet its needs alone. Id. Because of the consumer’s heavy
involvement in the manufacturing process and unique nature of the product made for only one
consumer, the court held the situation was not within the purpose of the cause of action and the
consumer was not protected by strict products liability. Id. at 623; see also Estep v. Rieter Auto. N.
Am.., Inc., 148 Ohio App.3d 546, 553 (Ohio Ct. App. 2002) (“A product which is custom-made at
the express request and design of the purchaser and which is not launched into the stream of
commerce to consumers is not a ‘product’ for purposes of imposing strict liability upon the
maker.”).
Since Queen City, courts have encountered similar situations, determining the issue on a caseby-case basis. Two such cases are Estep, supra, and Zuniga v. Norplas Indus. Inc., 2012-Ohio-3414, 974
N.E.2d 1252 (Ohio Ct. App. 2012). In each, a company had ordered a piece of machinery to fit
their needs. In Estep, the court held products liability did not apply because the piece of machinery
“was a custom-made unit, designed primarily by [the consumer]” and the parties involved were not
“in the business of constructing the particular components installed.” Estep, 148 Ohio App.3d at
553. Citing Estep, the court in Zuniga upheld the products liability claim finding the consumer had
not micro-managed the design and construction process, but instead ordered it from a manufacturer
who was “in the business of designing and building machinery.” Zuniga, 974 N.E.2d at 1560. In
holding the piece of machinery to be a product, the court stated that though it was made to fit the
customer’s needs, it was not “the ‘rare circumstance’ in which a purchaser’s involvement in the
design or manufacture of a product is so integrated as to deem the result outside the definition of a
product.” Id.
Here, Levy admits to designing and constructing slag plants for the use of its subsidiaries
and affiliates, including the plant at issue here. (Doc. No. 47). But, while Levy may have built other
slag plants before the one at issue, it was not in the business of constructing slag plants for sale. Id.
9

Levy never intended to place the slag plant into the stream of commerce, but built them for the sole
use of its affiliates and subsidiaries. Id. Further, though other slag plants had been constructed, the
topographical variation of real estate requires each plant to be custom-built to the terrain. Because
the slag plant was one-of-a-kind and never intended for sale, I find no reasonable mind could find
the slag plant to be a product or Levy to be a manufacturer pursuant to O.R.C. § 2307.75.
B.

Negligence
To succeed on his negligence claim, Lucio must prove duty, breach, causation, and damages.

The issue at hand is whether either Defendant owed Lucio a duty. He asserts each owe him a duty
under contract or the traditional principles of tort law.
1.

Contractual Duty of Care
Though third parties are often affected by a contract, only intended beneficiaries may

enforce a contract. Norfolk & W. Co. v. United States, 641 F. 2d 1201, 1208 (6th Cir. 1980); Hill v.
Sonitrol of Sw. Ohio, Inc., 36 Ohio St. 3d 36, 40 (1988). To determine whether a third-party is an
intended beneficiary, Ohio court’s apply the “intent to benefit” test. Under the test:
if the promisee… intends that a third party should benefit from the contract, then
that third party is an “intended beneficiary” who has enforceable rights under the
contract. If the promisee has no intent to benefit a third party, then any third-party
beneficiary to the contract is merely an “incidental beneficiary”, who has no
enforceable rights under the contract.
Norfolk, 641 F.2d at 1208. Further, “the mere conferring of some benefit on the supposed
beneficiary by the performance of a particular promise in a contract [is] insufficient; rather, the
performance of that promise must also satisfy a duty owed by the promisee to the beneficiary.” Id.
As stated above, 1996 Agreement established a business relationship between NSBS and FMS.
(Doc No. 47-1). The Guaranty incorporated into the 1996 Agreement designated Levy as the
“Guarantor” and states in part:
Guarantor hereby unconditionally and irrevocably guarantees to NSBHP, its
successors and assigns, the complete performance of all of the obligations under and
in accordance with, and subject to, the terms of the Services Agreement to: provide
10

the slag handling and mill services…and to otherwise perform all other obligations,
duties and responsibilities owed by FMS to NSBHP, including, without limitation,
the indemnification obligations of FMS under Section 11 of the Services Agreement.
Id. at 2-3. The Contract Specifications was also incorporated into the 1996 Agreement and states
“personnel health” as a goal.
Because of the requirement that the parties to the contract intend to directly benefit the third
party, that intent “[g]enerally…will be found in the language of the agreement.” Huff v. FirstEnergy
Corp., 130 Ohio St.3d 196, 200 (2011). When interpreting the language “to adequately safeguard all
persons…from injury,” the Huff court held that purpose of the contract governed and that the
statement did not evince an intent by either party “to give the general public the benefit of a promise
to perform.” 130 Ohio St.3d at 200-02. By the four corners of the contracts, the purpose of the
1996 Agreement and Guaranty is to establish a business relationship, including obligations and benefits,
between NSBS, FMS, and Levy. A single mention of “personnel health” as a goal in the Contract
Specifications does not establish a duty owed to Lucio nor does it lead to any inference that safety of
FMS employees was a purpose of the contract. Id. at 3. While FMS was charged with the duty to
supervise and ensure safety compliance of its employees, it was a duty owed to NSBS, not the
employees themselves. Since the language of the contract does not indicate the parties’ intent to
benefit FMS employees, I find Lucio to be an incidental beneficiary with no contractual right of
enforcement.
2.

Duty of Care in Tort Law
In tort law, the duty of care owed depends on the relationship of the alleged tortfeasor to the

injured party. Here, Lucio in an employee of FMS and works at a plant owned by FMS. FMS is an
affiliate or subsidiary company of Levy and independent contractor of NSBS. The FMS slag plant is
located within a compound of land owned by NSBS, on which NSBS owns a steel mill.

11

i.

NSBS
NSBS owned the land on which FMS’s slag plant was located and hired FMS as an

independent contractor to provide slag to its steel mill located within the same fenced-in area of
land. (Doc. No. 47-2). Under Ohio law,
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. Gas Co., 160 Ohio St. 103, 108 (1953). In short, when a property owner hires an
independent contractor to do work that is inherently dangerous, the property owner “ordinarily
owes no duty of protection to the employees of such contractor, in connection with the execution
of the work.” Id.; see also Sopkovich v. Ohio Edison Co., 81 Ohio St. 3d 628, 636-37 (1998). The
property owner has a duty only to warn the independent contractor of dangers on the premises; the
independent contractor has the duty to relay the information to its employees. Schwartz v. Gen. Elec.
Realty Corp., 163 Ohio St. 354, 361 (1955).
While Lucio concedes he was an employee of independent contractor FMS, he argues the
“no duty” rule does not apply because changing the screen on the top of the tower was not an
inherently dangerous activity. In Ohio, “[w]ork 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). The standard requires only that “the work involves a risk, recognizable in advance, of
physical harm to others, which is inherent in the work itself.” Id. at 280 (emphasis added). Here,
the tower was located 25 feet above the ground. (Doc. No. 23). When the screens were being
changed, the workers had to straddle on crossbars. (Doc. No. 51-1 at 10, Doc. No. 52-1 at 10).
Lucio himself recognized that the task was not free of risk, stating, “You had to be careful with your
footing.” (Doc. No. 52-1 at 10). Lucio’s very contention that the work was only dangerous because
of the lack of guardrails and proper safety procedures reaffirms the fact that “special precautions”
12

were necessary. (Doc. No. 57 at 14). Because the act of changing the screens on the tower would
reasonably require special precautions to ensure the safety of those performing the task, it is an
inherently dangerous activity.
Generally, NSBS would owe no duty to Lucio as an employee of an independent
contractor engaged in inherently dangerous work. But, a property owner does owe a duty when it
has been an “active participant.” See Hirschbach v. Cincinnati Gas & Elec. Co., 6 Ohio St. 3d 206, 20608 (1983); Michaels v. Ford Motor Co., 72 Ohio St.3d 475, 478-80 (1995). Active participation occurs
when the property owner: (1) “directs or exercises control over the work activities of the
independent contractor’s employees,” or (2) “retains or exercises control over a critical variable in
the workplace.” Sopkovich, 81 Ohio St. 3d at 643.
“Active participation” is not merely ancillary, such as inspection of the work site, but instead
requires actual participation in the job being performed. See Bond v. Howard Corp., 72 Ohio St.3d 332,
420-21 (1995) ( “‘[A]ctively 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.”). In
Cafferkey v. Turner Const. Co., 21 Ohio St. 3d 110 (1986), the court held the general contractor was not
an active participant because it had “not actively participate in any action or decision that led to the
fatal injuries.” 21 Ohio St. 3d at 112. Under contract, the general contractor had reserved the right
to retain “control over safety procedures at the project site” and “the ability to monitor and
coordinate the activities of all subcontractors in order to ensure compliance.” Id. at 113.
But since the contract did not give the general contractor the right “to control the means or
manner of [the independent contractor’s] performance,” it owed no duty to the employees of the
independent contractor as an active participant. Id.; see also Bond, 72 Ohio St.3d at 336-37 (“The
general contractor's retention of the authority to monitor and coordinate activities of subcontractors
and the retention of control over safety policies and procedures do not rise to the level of active
13

participation, thereby extending a duty of care from a general contractor to a subcontractor's
employees.”).
In comparison to Cafferty, NSBS’s “control” of the work site is rather minimal. NSBS
required FMS employees to complete a single training program when starting at the facility. (Doc.
No. 52-1 at 2; Doc. No. 56-1 at 13-14; Doc. No. 60 at 72-73). NSBS personnel also patrolled the
grounds occasionally to ensure employee compliance, by both FMS and NSBS employees, with
property rules such as the non-smoking policy. (Doc. No. 52-1 at 4-5; Doc. No. 56-1 at 8-9). NSBS
had no contractual rights to monitor any of FMS’s activities, nor did it do so. Lucio asserted no
facts that would indicate NSBS controlled or made decisions regarding the means or manner by
which FMS conducted its business activities, or had any right to do so. He certainly has not
established NSBS played any role in the specific task of changing the screen on the tower. There is
no factual basis to support a finding of active participation; NSBS owed Lucio no duty under either
contract or tort law principles.
ii.

Levy
Lucio asserts the same standard applies to Levy, but on the face of the contracts on which

Lucio depends, Levy is merely the guarantor of FMS’s contractual obligations not a general
contractor or a property owner. Levy admits its participation in the operations of FMS, but Lucio
has failed to cite a legal basis to establish a duty. Levy concedes that it may be a third-party
consultant, as was the case in Hunley v. Commercial Enters., Inc., 2003 WL 929541 (Ohio Ct. App.
March 10, 2003). In Hunley, a company was hired by the injured party’s employer to provide safety
training to the employees. Id. at *1. The court held that merely providing training was not grounds
to establish a duty. Id. at *2-*3. Instead, the employer itself had “the statutory duty to provide a
safe work environment.” Id. at *2.
Here, Levy provided safety procedures and training materials to FMS. (Doc. No. 60 at 47).
The materials included a safety manual requiring fall protection when employees were working at
14

heights of more than six feet in areas with unprotected sides. (Doc. No. 57-3 at 1; Doc. No. 60 at
47, 55, 215-20). Levy also provided FMS with documents called job safety breakdown analysis,
which outlined the safety equipment needed, procedure involved, and hazards associated with the
tasks performed at the slag plant. (Doc. No. 57-3 at 6; Doc. No. 60 at 21). One JBSA was devoted
the task of changing the screen on the tower and mandated the use of a “Manlift Harness &
Lanyard” and listed slips, tips, and falls as a hazard. (Doc. 57-3 at 6). While Levy provided these
materials, FMS had the duty to train its employees in their contents. (Doc. No. 47-2).
With respect to the slag plant site itself, Levy personnel inspected the slag plant twice a year,
the inspections were to ensure employee compliance with the training materials and were limited to
places that were “running” at the time of the inspection. (Doc. No. 60 at 66, 70-71). There is no
evidence that Levy personnel inspected the building itself for safety compliance. While Levy had
safety personnel available for questions, FMS employed safety personnel to train other employees
and ensure safety compliance in the course of the day-to-day operations. Levy’s role in safety
appears to be similar to that of the company in Hunley; it provided safety materials to FMS, but it
was FMS’s duty to ensure employees were adequately trained and the worksite was safe. FMS’s
failure to follow Levy’s safety guidelines does not establish a duty.
Lucio has failed to assert any legal basis for his claim of negligence. Since Levy owed Lucio
no duty, an analysis of Levy’s defense of immunity under Ohio Workers’ Compensation Law is
unnecessary.
C.

Negligent Design and Construction
Levy admits to designing and building the slag plant where Lucio was injured, but asserts

Ohio’s statute of repose bars Lucio’s claim of negligent design and construction. (Doc. Nos. 46,
47). In response, Lucio asserts that the statute of repose is unconstitutional or, in the alternative, a
statutory exception applies. (Doc. No. 57). Pursuant to Lucio’s request, oral argument was held on
the matter. (Doc. No. 71).
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As noted in the oral argument, the usual procedure by which to challenge the
constitutionality of a state statute is to “certify such fact to the attorney general of the State, and [ ]
permit the State to intervene for presentation of evidence, if evidence is otherwise admissible in the
case, and for argument on the question of constitutionality.” 28 U.S.C. § 2403(b). Lucio has chosen
not to do this, but found that the court could reach the merits of the claim without answering this
question. Therefore, before turning to Lucio’s defense of unconstitutionality, I will assess whether
the statute of repose acts to bar the cause of action.
The statute of repose states:
no cause of action to recover damages for bodily injury…that arises out of a
defective and unsafe condition of an improvement to real property … shall accrue
against a person who performed services for the improvement to real property or a
person who furnished the design, planning, supervision of construction, or
construction of the improvement to real property later than ten years from the date
of substantial completion of such improvement.
O.R.C. § 2305.131(A)(1). “‘[S]ubstantial completion’ means the date the improvement to real
property is first used by the owner or tenant of the real property or when the real property is first
available for use after having the improvement completed in accordance with the contract or
agreement covering the improvement.” O.R.C. § 2305.131(G).
To determine whether something is an improvement to real property, courts consider
factors such as “the enhanced value created when the item is put to its intended use, the level of
integration of the item within any manufacturing system, whether the item is an essential component
of the system, and the item’s permanence.” Brennaman v. R.M.I. Co., 70 Ohio St.3d 460, 465 (1994);
see also Adais v. Koppers Co., Inc., 741 F.2d 111, 113-14 (6th Cir. 1984). The slag plant is permanently
affixed to the land of NSBS and is integral to the operations of both companies. Without the plant,
not only would FMS have no place to conduct their day-to-day operations and make a profit, but the
business relationship by which FMS provides slag material to the NSBS steel mill, located within the
same compound, may not exist. Because the plant is essential to the profit generating operations of
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both companies and is permanently affixed to the land, I find it to be an improvement to real
property. Lucio does not contest this point or the fact that the plant was completed in 1997.
Therefore, under Ohio’s statute of repose, any claims accrued after 2007 are barred unless a
statutory exception applies.
There are three statutory exceptions to the general rule. To maintain his claim which
accrued in 2013, Lucio asserts the following two statutory exceptions:
(B) Division (A) of this section does not apply to a civil action commenced against a
person who is an owner of, tenant of, landlord of, or other person in possession and
control of an improvement to real property and who is in actual possession and
control of the improvement to real property at the time that the defective and unsafe
condition of the improvement to real property constitutes the proximate cause of the
bodily injury, injury to real or personal property, or wrongful death that is the subject
matter of the civil action.
…
(D) Division (A)(1) of this section does not prohibit the commencement of a civil
action for damages against a person who has expressly warranted or guaranteed an
improvement to real property for a period longer than the period described in
division (A)(1) of this section and whose warranty or guarantee has not expired as of
the time of the alleged bodily injury, injury to real or personal property, or wrongful
death in accordance with the terms of that warranty or guarantee.
O.R.C. § 2305.131.
At the outset, as with the issue of contractual duty discussed above, the exception in O.R.C.
§ 2305.131(D) will only apply if Lucio was an intended beneficiary to the contracts. Again, the
purpose of the Guaranty was to guarantee Levy would fulfill FMS’s duties to NSBS if FMS could or
did not. (Doc. No. 47-3). The brief mention of “personnel health” as a goal in an incorporated
document does not make Lucio an intended beneficiary. (Doc. No. 47-4). Since Levy made no
express warranty or guarantee to Lucio, O.R.C. § 2305.131(D) does not apply. (Doc. No. 47).
In the alternative, Lucio asserts that by Levy’s actions or contractual guaranty, O.R.C. §
2305.131(B) applies. The exception only applies when the person has actual possession or control of
the improvement that was the proximate cause of the injury—in this case, the tower. First, I must
note as above, Lucio’s assertion of actual control for the purpose of this claim is at odds with his
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products liability claim. But as with the previous claim, I will evaluate the issue of control
independently for purposes of this claim.
Pursuant to the terms of the contracts on which Lucio relies, FMS is the owner of the plant
and charged with all responsibilities associated with the plant’s operations, not Levy. (Doc. Nos. 471, 47-2). Levy merely guaranteed performance of the duties FMS owes to NSBS, including
operation of the plant. (Doc. No. 47-3). There is no evidence that Levy was in “exclusive control”
of the slag plant itself or even the safety operations of it as asserted by Lucio. (Doc. No. 57 at 19).
As noted above, while Levy provided safety protocols and training materials to FMS, it was FMS’s
very non-compliance with those protocols and materials that contributed to Lucio’s fall. FMS
exercised discretion in enforcing the rules outlined in Levy’s safety manual and training materials.
The evidence overwhelmingly supports a finding that FMS, not Levy, was in actual control and
possession of the slag plant. Accordingly, O.R.C. § 2305.131(B) does not apply to Lucio’s claim
against Levy.
Since neither statutory exception applies, the claim is barred by the statute of repose. The
only remaining issue is Lucio’s defense that the statute itself is unconstitutional. In Bailey v. Smart
Papers LLC, 2009 WL 891749 (S.D. Ohio Mar. 30, 2009), the plaintiff raised the same defense. The
Bailey court dismissed the defense because the plaintiff had failed to comply with two procedural
requirements: (1) moving to certify the constitutional question; and (2) opposing the defendant’s
motion to dismiss the constitutional question. Id. This case is somewhat different in that Lucio has
complied with all other procedural requirements. But as the question was not certified to the state
and Lucio makes no argument that the statute is in violation of the United States Constitution, I
limit my analysis to one of precedent.
Lucio premises his constitutional argument on the holding in Brennaman that the previous
versions of O.R.C. § 2305.131 violated the Ohio Constitution. But, the court in Groch v. Gen. Motors
Corp., 117 Ohio St.3d 192 (2008), stated,
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We confine Brennaman to its particular holding that former R.C. 2305.131, the prior
statute of repose for improvements to real property, was unconstitutional. It is
entitled to nothing more. To the extent that Brennaman stands for the proposition
that all statutes of repose are repugnant to Section 16, Article I, we expressly reject
that conclusion.
117 Ohio St.3d at 218 (emphasis added). The Groch court cited the “deficiencies in Brennaman,”
emphasizing the policy concerns articulated by the Brennaman dissent including the plaintiff’s
alternative available remedies and the importance of balancing “the rights of injured parties and the
rights of architects and engineers and guarded against the risk of stale litigation.” Id. at 217-18
(citing Brennaman, 70 Ohio St. 3d at 468-69 (Moyer, C.J., concurring in part and dissenting in part)).
When evaluating the constitutionality of the current version of O.R.C. § 2305.131, the court in
McClure v. Alexander, 2008 WL 754800 (Ohio Ct. App. March 21, 2008), relied on Groch. The
McClure court held that the language of the current version of the statute was “sufficiently different
from the previous version considered in Brennaman” and was constitutional. Id. at *10-*11. Since
the Ohio Supreme Court has explicitly limited Brennaman to the former O.R.C. § 2305.131 and the
only Ohio court to address the issue found the current version constitutional, I find no grounds to
support Lucio’s defense. Therefore, O.R.C. § 2305.131 bars Lucio’s claim, as a matter of law.
5.

Loss of Consortium
Plaintiff Stefanie Lucio asserts a claim of loss of consortium against both Defendants.

Under Ohio law, loss of consortium is a derivative claim and a spouse may only recover for loss of
consortium if the defendant has “committed a legally cognizable tort upon the spouse who suffers
bodily injury.” Bowen v. Kil-Kare, Inc., 63 Ohio St.3d 84, 93 (1992); see also Courie v. Alcoa Wheel &
Forged Prods., 577 F.3d 625, 633 (6th Cir. 2009). Since there is no dispute of material fact with
respect to any of Theodore Lucio’s tort law claims against the Defendants, Stefanie Lucio’s
derivative claim of loss of consortium must also fail.

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V.

CONCLUSION

Levy’s motion to exclude Wright’s testimony is granted with respect to Sections (A)(2)(A)(11), (B)(1), and (C). (Doc. No. 64). All statements made in the remaining Sections (A)(1) and
(B)(2) regarding intent or state of mind are also inadmissible. Both Defendants motions for
summary judgment are granted. (Doc. Nos. 46, 49).

So Ordered.
s/ Jeffrey J. Helmick
United States District Judge

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