McCarter et al v. BASF Corporation et al

Filing 43

MEMORANDUM ORDER AND ORDER granting 27 Motion for Summary Judgment filed by Defendant BASF Corporation. Signed by Judge William O. Bertelsman on 4/3/2017. (eh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
CIVIL ACTION NO. 1:2015-CV-00602 (WOB-KLL)
SONNY McCARTER
SUSIE McCARTER
VS.

PLAINTIFFS
MEMORANDUM OPINION AND ORDER

BASF CORPORATION

DEFENDANT

This a personal injury case removed to this Court from the
Hamilton County Court of Common Pleas. (Doc. 1).

Following

discovery, Defendant moved for summary judgment. (Doc. 27).

The

Court held oral argument on the motion on March 29, 2017, and now
issues this Memorandum Opinion and Order.
I. Factual and Procedural Background
This case involves an improbable chain reaction, ending in a
personal injury to Sonny McCarter, one of the Plaintiffs.

In the

summer of 2013, McCarter was in approximately his thirtieth year
as a field supervisor for Benner, Mechanical & Engineering (BME),
a company that specializes in servicing large cooling towers.
(Doc. 27-2, PageID# 179; Doc. 29-2, PageID# 379; Doc. 34, PageID#
454). In July 2013, BASF shut down part of its Cincinnati facility
and hired BME to perform an annual disassembly and reassembly on
its cooling tower fan.

(Doc. 27, PageID# 143).

BASF closed the cooling tower, de-energized the motor, and
placed a lock on that part of its facility, assuring that BME

1

(Doc. 27-2, PageID# 180).1

controlled access to the area.

BME

controlled the area thereafter, and BASF employees only entered
when “invited by a BME employee.”

(Id.).

At approximately 2:15 p.m. on August 13, 2014, McCarter was
standing on the roof of the cooling tower—approximately eight
stories high—watching a crane remove the old fan.

(Doc. 27-4,

PageID# 192–93). He noticed that the guardrail next to him was
loose, and alerted his fellow BME employees on the roof.
34-1, PageID# 465).

A BASF employee was also on the roof, too,

and McCarter called him over to show him the loose rail.
27-4, PageID# 211).

(Doc.

(Doc.

To display the problem, McCarter hit the

guardrail and caused it to shake.2 (Doc. 27-1, PageID# 168).
The vibration set off a highly unlikely chain reaction. A
series of light poles were attached to the guard rail.
5, PageID# 434).
old.

These outdoor lights were approximately 21 years

(Doc. 29-2, PageID# 398).

The vibration from the guardrail

shook the light pole directly in front of McCarter.
PageID# 193).

1

2

(Doc. 29-

(Doc. 27-4,

The connection point between the light fixture and

During discovery of this case, a BME employee said BME “had control
over the cooling tower and any work being performed.”
(Doc. 27-2,
PageID# 180).
The record characterizes this in different ways, but they are
differences of semantics.
McCarter said he “hit” it. (Doc. 27-1,
PageID# 168). A BASF employee said McCarter “shook” it. (Doc. 27-1,
PageID# 159).
Another BME employee said he saw McCarter “briskly
shaking it.” (Doc. 27-3, PageID# 184).
And a BASF employee said
McCarter “quickly hit the handrail two to three times, causing it to
shake.” (Doc. 27-6, PageID# 333).

2

the light pole was already rusted, and it cracked because of the
vibration.

(Doc.

27-1,

PageID#

160).

The

light

McCarter’s head, which was protected by a hard hat.
PageID# 333).
up.

(Id.).

fell

onto

(Doc. 27-6,

McCarter fell down for a moment, and then got back

McCarter initially refused medical treatment, but did

report lightheadedness and soreness in his neck.

(Doc. 27-4,

PageID# 216; Doc. 29-3, PageID# 422).
This was the first time any light fixture had broken in such
a way at BASF.

(Doc. 27-1, PageID# 159).

BASF had conducted a

visual check on the area, but only for dead bulbs or issues that
could be observed by standing next to the fixture.
2, PageID# 417, 419–20).

(Id.; Doc. 29-

To discover the weakened connection

between the pole and the light fixture, BASF would have had to
deconstruct the attachment. (Doc. 27-1, PageID# 160).
II. Analysis
This is a basic negligence case under Ohio law.

“In general,

a cause of action for negligence requires proof of (1) a duty
requiring the defendant to conform to a certain standard of
conduct, (2) breach of that duty, (3) a causal connection between
the breach and injury, and (4) damages.” Cromer v. Children’s Hosp.
Med. Ctr. of Akron, 29 N.E.3d 921, 928 (Ohio 2015).

To win this

case at trial, Plaintiffs must prove all four of those elements.
Conversely, if Defendant can show at this summary judgment stage
that Plaintiffs cannot prove any one element, then Defendant is
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entitled to summary judgment.
BASF argues it owed no duty to McCarter because McCarter was
an

independent

activity.

contractor

performing

an

inherently

dangerous

“The existence of a duty in a negligence action is a

question of law for the court to determine.” Mussivand v. David,
544 N.E.2d 265, 270 (Ohio 1989). Under Ohio law, if an independent
contractor

engages

in

an

inherently

dangerous

activity,

the

company that hired the independent contractor does not owe him a
duty unless the company actively participated in the independent
contractor’s work or retained control over a critical variable of
the workplace. Whitelock v. Gilbane Bldg. Co., 613 N.E.2d 1032,
1034 (Ohio 1993)(citing Hirschbach v. Cincinnati Gas & Elec. Co.,
452 N.E.2d 326, 328 (Ohio 1983)); see also Pinkerton v. J & H
Reinforcing, 2012-Ohio-1606, ¶ 18; Sopkovich v. Ohio Edison Co.,
693 N.E.2d 233, 244 (Ohio 1998); Maddox v. Ford Motor Co., 86 F.3d
1156 at *2 (6th Cir. 1996).3
Thus, this Court must determine whether there is a material
issue of fact regarding whether (1) McCarter was performing an
inherently dangerous activity, and (2) BASF actively participated
in McCarter’s activities or retained control over a critical
variable of the workplace.

3

As a policy matter, the entity that actually employs the independent
contractor is responsible for assuring his safety. See OHIO REV. CODE
ANN. § 4101.11.

4

1. McCarter was engaged in an inherently dangerous activity.
Under

Ohio

law,

“[a]

construction

site

is

inherently

a

dangerous setting.” Bond v. Howard Corp., 650 N.E.2d 416, 420 (Ohio
1995); see also Frost v. Dayton Power and Light Co., 740 N.E.2d
734, 744 (Ohio Ct. App. 4th Dist. 2000), amended, 98 CA 669, 2000
WL 1029141 (Ohio Ct. App. 4th Dist. July 25, 2000); Cefaratti v.
Mason

Structural

Steel

Co.,

694

N.E.2d

915,

916

(Ohio

1998)(Lundberg Stratton, J, dissenting); Whitelock, 613 N.E.2d at
1036 (Pfeifer, J., dissenting). Since McCarter was removing a
16x12-foot fan while standing eight stories off the ground, he was
engaged in construction activities, making his actions inherently
dangerous.
Even assuming, arguendo, that McCarter was not conducting
construction activities, he was still engaged in an inherently
dangerous

activity.

Ohio

courts

have

found

the

following

activities to be inherently dangerous:


Performing electrical work on a home under construction.
Cole v. Contract Framing, Inc., 834 N.E.2d 409, 416 (Ohio
Ct. App. 10th Dist. 2005).



Painting in a commercial, industrial setting where hard
hats are required. Frost, 740 N.E.2d at 747.



Painting a partially de-energized electrical substation.
Sopkovich, 693 N.E.2d at 244.



Working on the second floor of a building that had holes
cut in the floor. Bond, 650 N.E.2d at 420.

5



Working around holes cut in an upper-story floor.
Michaels v. Ford Motor Co., 650 N.E.2d 1352 (Ohio 1995).



Working atop a scaffold to hang fabric at a museum.
Hesselbach v. Toledo Museum of Art, 655 N.E.2d 831, 834
(Ohio Com. Pleas 1995).



Performing bricklayer services atop a five-foot high
scaffold. Whitelock, 613 N.E.2d at 1033.



Working with methane at a construction site. Cafferkey
v. Turner Const. Co., 488 N.E.2d 189, 192 (Ohio 1986).



Working
atop
a
high-tension
Hirschbach, 452 N.E.2d 326.

electrical

tower.

If an activity falls within this range, it is inherently
dangerous unless the landowner could have made the premises safer
by removing the dangerous condition with ordinary care. See Barnett
v. Beazer Homes Invests., L.L.C., 905 N.E.2d 226, 231 (Ohio Ct.
App.

12th

Dist.

2008)(denying

summary

judgment

because

the

landowner may have been able to avoid a live electrical wire by
exhibiting ordinary care); Cole, 834 N.E.2d at 418.
Yet, there was no way for BASF to remove the inherent danger
of McCarter working “80 [to] 100 feet” in the air, assisting his
BME colleagues in guiding a crane wench as it removed a 16x12-foot
fan from a cooling tower. (Doc. 27-4, PageID# 192).

McCarter was

wearing a hard hat at the time, indicating the riskiness of the
project. (Doc. 29-3, PageID# 422). See, e.g., Cafferkey, 488 N.E.2d
at 192 (finding an inherently dangerous environment, in part
because employees wore hard hats); Frost, 740 N.E.2d at 747 (same).

6

BASF did regular checks of the area to assure the lighting and
other safety conditions were met, and no reasonable fact finder
could believe BASF should or could reasonably have done more to
assure the safety of those atop the cooling tower.

If working at

heights like a second story or a five-foot scaffold are inherently
dangerous because of the threat of falling, then working six
stories higher and overseeing the movement of large equipment is
also inherently dangerous.
2. BASF did not actively participate in McCarter’s activities.
Since McCarter’s activities were inherently dangerous, BASF
only owed him a duty if it actively participated in his activities
or retained control over a critical variable of the workplace.
Sopkovich, 693 N.E.2d at 243. Under Ohio law, active participation
means an entity “directed the activity which resulted in the injury
and/or gave or denied permission for the critical acts that led to
the employee’s injury, rather than merely exercising a general
supervisory role over the project.” Bond, 650 N.E.2d at 420–21.
Mere supervision is not active participation. Michaels, 650 N.E.2d
at 1355 (citing Cafferkey, 488 N.E.2d at 192).
The Ohio Supreme Court has not defined retaining or exercising
“control over a critical variable in the workplace.”4 Sopkovich,

4

One Ohio Supreme Court justices argued control of a critical variable
of the workplace means the landowner must direct or oversee the
independent contractor’s actions. Cefaratti v. Mason Structural Steel
Co., 694 N.E.2d 915, 916 (Ohio 1998)(Stratton, J., dissenting). This

7

693 N.E.2d at 243.

But the Fourth District Court of Appeals in

Frost v. Dayton Power and Light Co. found that mere ownership of
the instrument that harmed the Plaintiff is not sufficient to
constitute control over a critical variable. Frost, 740 N.E.2d at
749.

In Frost, an independent contractor was painting a pipe near

a boiler room floor when another pipe fell onto his head. Even
though the Defendant in Frost owned the building in question, he
had turned over the boiler room to the Plaintiff’s employer, and
no longer retained exclusive control of the critical variable of
the work environment.
Similarly, BASF did not retain control of the cooling tower
where McCarter was struck by the light. McCarter’s co-worker at
BME said that “BME placed their padlock on the lockbox in the
control room” of the cooling tower, and therefore controlled access
to and operation of the area.

(Doc. 27-3, PageID# 184). According

to McCarter’s manager at BME, “BASF did not give instructions or
orders to BME or its employees regarding how to carry out BME’s
repair work for a Project.”
deposition,

McCarter

(Doc. 27-2, PageID# 180). In his

admitted

that

BME

was

directing

his

definition has predominated, with lower courts finding that a landowner
must “g[i]ve or den[y] permission for the critical acts that led to
[Plaintiff’s] injury.” See Pinkerton v. J & H Reinforcing, 2012-Ohio1606, ¶ 36 (Ohio Ct. App. 4th Dist. 2012); see also Lillie v. Meachem,
2009-Ohio-4934, ¶ 32 (Ohio Ct. App. 3rd Dist. 2009); McClary v. M/I
Schottenstein Homes, Inc., 2004-Ohio-7047, ¶ 34 (Ohio Ct. App. 10th
Dist. 2004).

8

activities and was in control of the cooling tower. (Doc. 27-4,
PageID# 193-94, 196).

Though BASF employees occasionally visited

the cooling tower, this was only at the invitation of BME, and
only to observe critical parts of the project like the removal of
the fan. (See Doc. 27-2, PageID# 180).
These facts do not indicate that BASF “directed the activity”
atop the cooling tower, Bond, 650 N.E.2d at 420–21, or that BASF
retained or exercised “control over a critical variable in the
workplace.” Sopkovich, 693 N.E.2d at 243.

Therefore, BASF did not

actively participate in McCarter’s activities.
III. Conclusion
Since McCarter was an independent contractor engaged in an
inherently

dangerous

activity

that

BASF

did

not

actively

participate in, BASF did not owe McCarter any duty under Ohio law.
Whitelock, 613 N.E.2d at 1034.

Absent a duty, BASF cannot be

liable for negligence in this case.
Therefore,

having

reviewed

this

matter,

and

being

sufficiently advised,
IT IS ORDERED that Defendant’s Motion for Summary Judgment
(Doc. 27) is hereby GRANTED.

A separate judgment shall enter

concurrently herewith.

9

This 3rd day of April, 2017.

10