Gibson v. The Selinksy Force, LLC et al

Filing 53

ORDER GRANTING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT (DOCS. 40 , 41 ). Signed by Judge Matthew W. McFarland on 01/07/2022. (kaf)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
SOUTHERN DIVISION

LEVI GIBSON,
Plaintiff,

Case No. 1:19-cv-00283-MWM
Judge Matthew W. McFarland

V.

THE SELINKSKY FORCE, LLC, et al.
Defendants.

ORDER GRANTING DEFENDANTS'
MOTIONS FOR SUMMARY JUDGMENT (DOCS. 40, 41)

This matter is before the Court on Defendant Dynegy Zimmer LLC's ("Dynegy")
Motion for Summary Judgment (Doc. 40) and Defendant The Selinsky Force, LLC's
("Selinsky") Motion for Summary Judgment (Doc. 41). Plaintiff filed his Responses in
Opposition (Docs. 47, 48, respectively), to which each Defendant filed a Reply (Docs. 49,
50). Subsequently, Dynegy filed a Notice of Supplemental Authority (Doc. 52) for the
Court's consideration. Thus, this matter is ripe for the Court's review. For the reasons
below, Defendants' Motions are GRANTED.
FACTS

This lawsuit arises from an accident at the William H. Zimmer Power Station
("Zimmer Station"), then owned and operated by Dynegy, which resulted in injuries to
Plaintiff. (Dynegy Statement of Proposed Undisputed Facts, Doc. 40-1, at 11.) At that
time, Plaintiff was employed by Defcon Force LLC ("Defcon"), and Selinsky was the

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parent company of Defcon. (Id. at ,i,i 2-3.) Defcon specialized in performing work on
pulverizers at coal power plants. (Id. at ,i 4.) A pulverizer is a large piece of machinery
that crushes coal into dust. (Id. at ,i 5.)
In 2010, Selinsky purchased Defcon. (Selinsky Statement of Proposed Undisputed
Facts, Doc. 41-2, at ,i 17). Selinsky contends that, thereafter, the companies continued to
run separately and independently, as they had prior to the acquisition, except that
Selinsky handled Defcon's accounting. (Id. at ,i 18.) According to Selinsky, Defcon
continued to use its own standard operating procedures in furtherance of its business,
including how work was performed on pulverizers. (Id. at ,i 21.) Indeed, Selinsky
indicates that its safety director was not tasked with responsibility over, or enforcement
of, Defcon's safety program. (Id. at ,i,i 23; 27.) Nor did Selinsky provide or implement
its safety policies to Defcon, train Defcon on its safety policies, nor enforce its safety
policies on Defcon. (Id. at ,i 28.)
Plaintiff describes the relationship between Defcon and Selinsky differently,
especially as it pertains to safety, relying almost entirely on the deposition of Joseph
Dimel, Defcon' s division manager. According to Plaintiff, Defcon did not have its own
safety program and instead, Defcon employees relied on Selinsky's safety program.
(Deposition of Joseph Dimel ("Dimel Dep."), Doc. 37, at Pg. ID 512, 30:22-31:8). Mr. Dimel
described the Selinsky program as" a health and wellness safety program." (Id. at Pg. ID
512, 31:22-23.) When asked about the training Selinsky provided, Mr. Dimel explained
that Selinsky' s safety director" would come down and do the manager safety orientation,

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... twice a year." (Id. at Pg. ID 513, 35:19-36:3.) Selinsky would also periodically receive
signed job safety sheets from Defcon employees. (Id. at Pg. ID 514, 38:24-39:13.)
Since he began working for Defcon, Plaintiff performed pulverizer rebuilds or
preventative maintenance on pulverizers at several different coal plants, including
Zimmer Station. (Dynegy Statement of Proposed Undisputed Facts, Doc. 40-1, at, 7.)
Plaintiff did not receive any formal training from Defcon at any time prior to the accident.

(Id. at, 8.) Instead, any training Plaintiff received was from the local millwright union
or on-the-job training from the Defcon foreman. (Id. at , 10.) In fact, Plaintiff learned
how to perform pulverizer preventative maintenance and rebuilds by watching other
Defcon employees perform the work and from instructions provided by the Defcon
foreman.

(Id. at , 11.) Plaintiff never saw any Selinsky safety policies nor did he

communicate with anyone from Selinsky prior to his accident. (Selinsky Statement of
Proposed Undisputed Facts, Doc. 41-2, at, 4,8.)
Beginning in March of 2017, and continuing into April, Defcon performed
preventative maintenance on the pulverizers at Zimmer Station. (Dynegy Statement of
Proposed Undisputed Facts, Doc. 40-1, at , 17.) Pulverizer preventative maintenance
consists of performing general inspections, oil changes, welding, and repairs on the inside
of the pulverizer mill. (Id. at, 12.) When performing the preventative, the worker must
work from an elevated position to open the maintenance door on the side of the
pulverizer and access the inside. (Id.)
Defcon' s method for accessing a pulverizer door was to elevate the employee in a
man basket that it made. (Id. at, 13.) So, to do that, Defcon's practice was to attach the
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man basket to a forklift using a metal rope threaded through an eye bolt on the man
basket and wrapped around the mast of the forklift. (Id. at ,-i 14.) When elevating
employees in the man basket, to act as fall protection, Defcon would attach a six-foot
lanyard to an eyelet on the inside of the man basket itself and the worker would wear a
harness. (Id. at ,-i,-i 15-16.)
Defcon, through its foreman, Mr. Johnson, performed a job safety analysis every
morning, which involved Mr. Johnson reviewing with the Defcon crew the work they
would be doing each day and the potential risks and hazards. (Selinsky Statement of
Proposed Undisputed Facts, Doc. 41-2, at ,-i 11.) These meetings usually lasted five to ten
minutes and occurred in Defcon's trailer. (Dynegy Statement of Proposed Undisputed
Facts, Doc. 40-1, at ,-i,-i 23-25.) Mr. Johnson would complete a Selinsky job safety analysis
form and submit the form, signed by the crew, to Selinsky. (Id. at ,-i,-i 26-27.) Occasionally,
Dynegy' s contractor liaison or on-site safety specialist would attend the job safety
analysis meetings. (Id. at ,-i,-i 29-31.)
Dynegy did not have a policy regarding how contractors should open pulverizer
doors, including how the contractors should be elevated. (Id. at ,-i 18.) Nor did Dynegy
approve Defcon' s use of equipment that Defcon used to perform its work at Zimmer
Station or instruct Plaintiff how to perform his work. (Id. at ,-i,-i 20, 33.) Carolyn Burch,
Dynegy' s on-site safety specialist, had the authority to stop work if she observed a
contractor engaging in an unsafe practice, but she never saw Defcon use a man basket
attached to a forklift. (Id. at ,-i,-i 35-36.)

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Similarly, Selinsky did not inspect the man basket nor provide any training
relating to it. (Selinsky Statement of Proposed Undisputed Facts, Doc. 41-2, at ,r 30.) In
fact, Selinsky's safety director did not know the man basket existed. (Id. at ,r 47.)
Furthermore, Selinsky was not involved in the Zimmer Station project at all prior
to the accident. It did not visit Zimmer Station during the project, and Selinsky's safety
director was not aware that Defcon was even working at Zimmer Station, let alone what
work Defcon was performing there. (Id. at ,r,r 39, 43-44.) Thus, Selinsky's safety director
never inspected Defcon' s work at Zimmer Station, nor did he perform a worksite hazard
assessment for Defcon's work there. (Id. at ,r,r 45-46.) In fact, Selinksy never conducted
a safety audit of Defcon. (Id. at ,r 35.)
The accident precipitating this lawsuit occurred on April 19, 2017. By this date,
Defcon had already performed preventative maintenance on nine pulverizers, and
Plaintiff had been on the project for three or four weeks. (Id. at ,r,r 9-10.) On this morning,
Mr. Johnson performed a job safety analysis, on which Plaintiff signed off. (Id. at ,r,r 12.)
Plaintiff admits he did not check to make sure that the man basket was attached to
the forklift with the metal cable prior to Mr. Johnson elevating the basket. (Id. at

,r 13.)

After Mr. Johnson lifted Plaintiff in the man basket, the basket slid off the tines of the
forklift. (Id. at ,r 14.) The man basket, along with Plaintiff, fell to the ground resulting in
Plaintiff's injuries. (Id.)

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LAW

When there is no genuine dispute as to any material fact and the moving party is
entitled to judgment as a matter of law, the court shall grant summary judgment. Fed. R.
Civ. P. 56(a). The moving party has the burden to conclusively show that no genuine
issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317,323 (1986); Lansing Dain;,
Inc. v. Espy, 39 F.3d 1339, 1347 (6th Cir. 1994). If the moving party meets that burden,

then it becomes the nonmoving party's responsibility to point out specific facts showing
that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250
(1986). The court is under no obligation to search the record for genuine issues of material
fact. Betkerur v . Aultman Hosp. Ass'n, 78 F.3d 1079, 1087 (6th Cir. 1996). A "mere scintilla"
of evidence in support of the nonmoving party's position is not enough to avoid
summary judgment. Daniels v. Woodside, 396 F.3d 730, 734 (6th Cir. 2005). Rather, to
preclude summary judgment, the nonmoving party must put forward probative
evidence on which a jury could reasonably reach a verdict in that party's favor. Anderson,
477 U.S. at 251-52; Lansing Dairy, 39 F.3d at 1347. If the nonmoving party fails to make
the necessary showing for an element upon which it has the burden of proof, then the
moving party is entitled to summary judgment. Celotex, 477 U.S. at 323.
Dynegy (the coal power plant owner) and Selinsky (the parent company of
Plaintiff's employer) each filed a motion for summary judgment on the negligence claims
Plaintiff asserted against each of them. To prevail on a claim for negligence, Plaintiff
must prove the following elements: (1) the existence of a duty owed by the defendant to

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the plaintiff, (2) the breach of duty, (3) causation, and (4) damages. Hudzik v. Boulevard
Ctr. Co., 103 N.E.3d 131, 135 (Ohio Ct. App. 2017).

ANALYSIS
A.

Selinsky's Motion for Summary Judgment (Doc. 41)

As Defcon's parent company, Selinsky argues that it did not owe a duty of care to
Plaintiff because it is a separate corporate entity from Defcon and did not undertake to
render services to Plaintiff or for his benefit. Moreover, even if Selinsky had rendered
such services, its conduct did not increase the risk of harm to Plaintiff, it did not supplant
Defcon's duty, and neither Plaintiff nor Defcon actually and detrimentally relied upon
such undertaking.
Generally, under Ohio law, a parent corporation is not liable for the negligent acts
of its subsidiaries under the doctrine of respondeat superior. Thompson v. Superior Fireplace
Co., 931 F.2d 372, 374 (6th Cir. 1991). A parent, however, may be held liable to its

subsidiary's employees for its own independent acts of negligence. Id.
The parties appear to agree1 that Section 324(A) describes the potential basis for
Selinsky's duty in this case. Section 324(A) provides as follows:
One who undertakes, gratuitously or for consideration, to render services
to another which he should recognize as necessary for the protection of a
third person or his things, is subject to liability to the third person for
1

Plaintiff argues in passing that Selinsky may have a duty pursuant to the fundamental principles of tort
law, that is, if a reasonable person could foresee that an injury might occur from a particular act, then the
law imposes a duty upon that person to act with due care in the performance of the act. (Response, Doc.
47, Pg. ID 1201.) Along those same lines, Plaintiff also suggests that Selinsky may be held liable in tort for
its own acts. While these are generally accurate statements of the law, see Boggs v. Blue Diamond Coal Co.,
590 F.2d 655,663 (6th Cir. 1979), Plaintiff fails to identify any affirmative acts from which Selinsky's liability
may arise. To the contrary, the gist of Plaintiff's allegations are that Selinsky failed to take actions that
would have prevented the accident, not that it took actions that caused it.

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physical harm resulting from his failure to exercise reasonable care to
protect his undertaking, if
(a) his failure to exercise reasonable care increases the risk of such harm, or
(b) he has undertaken to perform a duty owed by the other to the third
person, or
(c) the harm is suffered because of reliance of the other or the third person
upon the undertaking.
Restatement (Second) of Torts (1965).
Although the Ohio Supreme Court has not ruled on whether Section 324(A)
applies under these circumstances, several federal and state cases in Ohio support the
conclusion that it would. See Hill v. Sonitrol of Southwestern Ohio, Inc., 36 Ohio St.3d 36,
521 N.E.2d 780 (1988); Stevens v. Jeffrey Allen Corp., 131 Ohio App.3d 298, 722 N.E.2d 533
(1st Dist. 1997); Wissel v. Ohio High School Athletic Assn., 78 Ohio App.3d 529,605 N.E.2d
458 (1st Dist. 1992); see also Lapine v. Materion Corporation, No. 1:16 CV 2119, 2016 WL
7033727 at fn. 2 (N.D. Ohio Dec. 2, 2016) (noting that Ohio courts apply Section 324A).
Moreover, when faced with this precise issue under Kentucky law, the Sixth
Circuit held that the Kentucky Supreme Court would apply Section 324A. Merrill ex rel.

Est. of Merrill v. Arch Coal, Inc., 118 F. App'x 37, 44 (6th Cir. 2004). The Sixth Circuit noted
that, under Kentucky law Gust as under Ohio law), parent corporations could not be held
liable under the doctrine of respondeat superior but could be held liable for their own
independent acts of negligence. Id. The question then became whether the parent
corporation has committed independent acts giving rise to a duty of care to the plaintiff.
The Sixth Circuit reasoned that the Kentucky Supreme Court would use Section 324A as
the standard to determine when a parent corporation had done so.
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The same logic applies here. Under these circumstances, the Ohio Supreme Court
would need to make the same determination, and it would reasonably also turn to Section
324A of the Restatement (Second) of Torts to provide the standard. Accordingly, Section
324(A) applies here to determine whether Selinsky owed a duty to Plaintiff.
1.

Whether Selinsky Undertook to Render Services to Plaintiff

The threshold question under Section 324A is whether the defendant undertook
to render services to or for the benefit of the plaintiff. Merrill, 118 F. App'x at 44. The
Sixth Circuit's decision in Merrill is instructive to the analysis of this question.
In that case, a mine employee was killed when a portion of the mine' s roof
collapsed. Id. at 38. The employee's wife and minor child sued the employee's employer
and its parent company. Id.

Following discovery, the parent company moved for

summary judgment arguing that it had not undertaken a voluntary duty for the safety of
its subsidiary's employees, and the district court granted the motion. Id. at 43.
The Sixth Circuit reversed summary judgment for the parent company because it
found a question of fact existed as to whether the parent company's acts did, in fact,
undertake a voluntary duty. Id. at 45. Specifically, the Sixth Circuit acknowledged that
a "general corporate-wide safety program, safety awards and general safety guidelines
are insufficient to create a duty on [its] part." Id. at 44. But the court noted that the parent
company had performed specific actions that "went beyond mere oversight or
consultation." Id. The parent company had taken actions specifically directed to remedy
the safety issue that ultimately caused the plaintiff's injuries, including visiting the mine,
examining the mine' s roof, offering advice about roof control, and ultimately concluding
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the roof system was adequate. Id. at 45-46 (citing Johnson v. Abbe Eng'g Co., 749 F.2d 1131,
1133 (5th Cir. 1984) (parent corporation's duty to protect its subsidiary's employees arises
"when the defendant has 'undertaken to inspect the specific instrument causing the
injury or to inspect the entire plant of which that instrument was a part.'"))
Other decisions have similarly focused on the nature of the parent corporation's
actions (active versus passive), the scope of the parent corporation's actions (general
versus specific) and even when specific, whether the actions pertained to the
instrumentality that caused the injury at issue.

See McAtee v. Fluor Constructors

International, Inc., No. 98-5927, 1999 WL 685928, *6 (6th Cir. Aug. 27, 1999) (concluding
that broad allegations that the parent company was responsible for "plant safety" was
insufficient under Section 324(A), instead requiring evidence that the parent company
"specifically undertook to render safety services with respect to Plaintiff's work near [the
instrumentality that caused his injury]"); Lapine v. Materion Corp., Case No. 1:16cv2119,
2016 WL 7033727, *4 (N.D. Ohio Dec. 2, 2016) (granting a motion to dismiss because the
plaintiff based his claim against the parent company of the employer on that entity's
inaction, which the court concluded undermined his position that the parent company
had assumed a duty).
The undisputed facts in this case show that Selinsky did not undertake any duty
as to Plaintiff's safety in relation to the man basket. The evidence shows that, at most,
Selinsky implemented a high level, general corporate-wide safety program. For example,
Mr. Dimel, Defcon' s Operation and Division Manager, testified that someone from
Selinsky would perform management level training twice a year. And he even referred
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to the Selinsky safety program as a health and wellness safety program. Twice a year
manager safety orientation cannot be construed to mean that Selinsky undertook to
render safety and training related services to Defcon and its employees. 2 Moreover, Mr.
Dimel's characterization of the safety program is akin to the high-level, general corporate
safety programs that the Sixth Circuit has confirmed does not constitute undertaking a
duty under Section 324A. See Merrill, 118 F. App'x at 44. Moreover, Plaintiff elsewhere
admits that he received on-the-job training at Defcon and that Defcon conducted its own
site-specific training at jobsites and conducted job safety analyses.
Furthermore, Plaintiff can point to no evidence that Selinsky undertook any
responsibility for the safety of the work basket or employees using the work basket. Mr.
Dimel's testimony reflects only that he assumed Selinsky would be responsible for
ensuring OSHA compliant equipment. (See Doc. 37 at PageID# 516) (responding when
asked if he agreed that the safety department at Selinsky would have been responsible
for ensuring that the men were working on OSHA compliant equipment, "I would
assume so.") Furthermore, that question pertains generally to equipment-not the man
basket in question.
In any event, Plaintiff elsewhere admits that "Selinsky never inspected the man
basket or provided training related to it," and that Selinsky' s safety director "did not
know the man basket existed." (Selinsky Statement of Proposed Undisputed Facts, Doc.
41-2, at ,-i,-i 30, 47.) He further acknowledges that Selinsky's safety director did not

2

While Plaintiff argues that Selinsky has a very specific safety program, the specifics of Selinsky's own
safety program has no bearing on whether it ever rendered services to protect Defcon' s employees. Indeed,
the testimony confirms Selinsky did not.

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perform a safety audit or inspection of the work to be performed by Defcon at the Zimmer
Power Plant." (Id. at ,i 45-46.) Indeed, any involvement by Selinsky with Defcon did not
occur until after Plaintiff's accident. (Doc. 35 at Pg. ID 341-42.)
Plaintiff's reliance on the testimony of his expert, James McIntosh, to survive
summary judgment is misplaced. Mr. McIntosh's opinion relies on OSHA standards in
finding that Selinsky had a duty to prevent Plaintiff's injuries.

OSHA, however,

conducted an investigation after the incident and found only Defcon in violation of its
standards, not Selinsky or any other entity. Moreover, Mr. McIntosh opines on a legal
question: whether Selinsky had a duty to Plaintiff. Thus, an opinion on this issue is
improper.
In sum, Plaintiff fails to create a genuine issue of material fact regarding whether
Selinsky undertook to provide services to Defcon such that it owed a duty to Plaintiff in
this case. Selinsky did not provide anything more than general oversight to Defcon, and
certainly no services directed at the Zimmer Plant or the particular forklifts and baskets
that led to Plaintiff's injuries.
2.

Section 324A's Other Requirements

Even if, under these circumstances, Plaintiff created a genuine issue regarding
whether Selinsky undertook to provide services on his behalf, he would still need to meet
one of Section 324A's other elements. Those elements are that (a) the failure to exercise
reasonable care increased the risk of harm, (b) the defendant has undertaken to perform
a duty owed by another to the plaintiff, or (c) the harm is suffered because of reliance of

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the other or the plaintiff upon the undertaking. As discussed below, Plaintiff is unable
to create a genuine issue as to any of these elements.
As to any alleged increase in the risk of harm, "[t]he test is not whether the risk
was increased over what it would have been if the defendant had not been negligent,"
but rather whether "the risk was increased over what it would have been had the
defendant not engaged in the undertaking at all." Sagan v. U.S., 342 F.3d 493 (6th Cir.
2003) (quoting Myers v. United States, 17 F.3d 890,903 (6th Cir.1994). Plaintiff erroneously
premises his arguments on what the risk would have been if Selinsky had not been
negligent. But this presumes the existence of the duty. He thus fails to create a genuine
issue as to this element.
Under the second alternative, Plaintiff would need to show that Selinsky had
undertaken a duty owed to him by Defcon. The caselaw as to this element is clear,
however, that the defendant's undertaking must supplant, not merely supplement, the
other's fulfillment of the duty in question. It is undisputed that Defcon provided some
on-the-job and site-specific training to its employees. Thus, Selinksy clearly did not
supplant Defcon' s safety efforts.
Under the last alternative element, Plaintiff must show reliance on Selinsky' s
undertaking. However, Plaintiff does not claim to have personally relied on Selinsky's
safety training or policies. To the contrary, Plaintiff admits he never saw a Selinsky safety
policy, nor did he ever speak to anyone at Selinsky prior to his accident. Instead, he
argues that Defcon did. Yet there is no evidence that Selinsky undertook any action to
ensure the safety of the baskets, or that Selinsky even knew that Defcon was performing
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any maintenance at the Zimmer Station. As such, Defcon could not have relied on
Selinsky to ensure the safety of its employees at the plant when Selinsky did not even
know that they were there.
In Sum, Selinsky's Motion for Summary Judgment is well-taken. There is no
genuine issue of material fact, and Selinksy did not, as a matter of law, owe Plaintiff a
duty.

B.

Dynegy's Motion for Summary Judgment (Doc. 40)
Dynegy is the owner of the coal power plant, not Plaintiff's employer. Dynegy

argues that, like a general contractor, it is not liable to Defcon's employees for Defcon' s
acts in the performance of the contracted work unless it actively participated in the work,
which Dynegy argues it did not.
Plaintiff presents two arguments to avoid summary judgment. First, that Dynegy
actively participated in Defcon's work. (See Response, Doc. 48, Pg. ID 1236.) Second, that
Dynegy has duty under common law to provide Defcon workers a safe working
environment or, at a minimum, to exercise care in performing a duty which it has
undertaken (relying on Section 324A of the Restatement (Second) of Torts). (See id. at Pg.
ID 1232-33.)
Taking the second argument first, Plaintiff cites no authority in support of its
argument that Dynegy owed him a duty to provide a safe workplace- he relies only on
the testimony of his expert who reviewed the record and opined that Dynegy owed a
duty to Plaintiff that it breached.

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While the expert's opinion might be helpful to the jury on the question of breach, whether
a duty exists is a question of law to be decided by the Court. Moreover, the expert's
opinion is based on OSHA and other standards irrelevant under the applicable Ohio law
as noted above.
Importantly, Ohio law is clear that "[t]he duty owed to frequenters, i.e., including
employees of other companies, is no more than a codification of the common-law duty
owed by an owner or occupier of premises to invitees, requiring that the premises be kept
in a reasonably safe condition, and that warning be given of dangers of which he has
knowledge." Eicher v. U.S. Steel Corp., 512 N.E.2d 1165, 1167 (Ohio 1987). Such a duty
"does not extend to hazards which are inherently and necessarily present because of the
nature of the work performed, where the frequenter is the employee of an independent
contractor." Id. Under such circumstances, the "primary responsibility" for protecting
the employee of an independent contractor lies with the employer- i.e., the independent
contractor. Id. at 1168; accord Abbott v. Jarett Reclamation Servs., 726 N.E.2d 511, 518 (Ohio
App. 1999).
Thus, based on this well-settled Ohio law, there can be no inherent duty for
Dynegy, as the site owner/ operator, to provide a safe workplace for Defcon's employees,
unless it actively participated in the work or assumed such a duty. The Court will discuss
each in turn.
1.

Duty Arising from Active Participation

Generally, one who engages the services of an independent contractor generally
owes no duty to protect the contractor's employees from dangers inherent to the job.
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Wellman v. East Ohio Gas Co., 113 N.E.2d 629, syllabus (Ohio 1953). Instead, only a
company or general contractor that "actively participates" in the independent
contractor's work owes a duty of care to the contractor's employees. Cafferkey v. Turner

Constr. Co., 488 N.E.2d 189, syllabus (Ohio 1986). "For purposes of establishing liability
to the injured employee of an independent subcontractor, 'actively participated' means
that the general contractor directed the activity which resulted in the injury and/ or gave
or denied permission for the critical acts that led to the employee's injury, rather than
merely exercising a general supervisory role over the project." Bond v. Howard Corp., 650
N.E.2d 416, syllabus (Ohio 1995).
The critical question, then, is what constitutes "active participation" under Ohio
law. Ohio cases illuminate general guidelines in answering this question. First, active
participation occurs only where the owner requires a contractor perform a particular
activity in a manner that causes injury or refuses to permit a safer alternative. Hillabrand

v. Drypers, 2002-Ohio-5485, 1 18. Second, '"[a]ctive participation' does not include mere
supervision of an independent contractor's work or exhibiting a general concern for
safety." Frost v. Dayton Power & Light Co., 740 N.E.2d 734 (Ohio App. 2000). Third, an
owner's knowledge of an independent contractor's activities likewise does not constitute
"active participation" for purposes of establishing liability for a resulting injury. Cornell

v. Mississippi Lime Co., 95 N.E.3d 923, 936 (Ohio App. 2017).
The undisputed facts in this case confirm that Plaintiff's injuries were caused by
the manner in which Defcon had him perform maintenance work, not Dynegy.

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a.

Direct or Control

First, Dynegy did not direct or control the activity that ultimately injured Plaintiff.
"Ohio courts have specified that exercising control over an independent contractor's
employees' workplace activities involves something akin to directing, instructing, or
requiring that actions be performed by those employees in a certain way." Jolly v. Dynegy

Miami Fort, LLC, 500 F. Supp. 3d 659,671 (S.D. Ohio 2020).
Plaintiff argues that the following facts demonstrate that Dynegy actively
participated in Plaintiff's workplace activities:
1. Requiring Defcon's employees to undergo Dynegy site orientation training;
2. Requiring Defcon's employees to comply with Dynegy site policies/procedures;
3. Having a Contractor Liaison (Bobby Leslie) attend Defcon's meetings and discuss
specific job-related hazards with Defcon employees;
4. Having a Dynegy site safety specialist (Carolyn Burch) inspect and monitor
Defcon's work from a safety standpoint;
5. Having a Contractor Safety Program in place which requires Dynegy to ensure
that Defcon and its employees are competent, are properly trained and adhere to
Dynegy site policies and procedures;
6. Having specific company policies in place (powered industrial trucks - forklift,
fall protection, scaffolds, etc.) related directly to Defcon's work on the pulverizers,
including a policy banning personnel from being lifted in a work basket with a
forklift;
7. Having Dynegy's own employees perform preventative maintenance on the
pulverizers from time to time and utilizing a scissor lift rather than a work basket
attached to a forklift pursuant to Dynegy company policy;
8. Having the Dynegy Contractor Liaison several times witness the Defcon crew
utilize a work basket attached to a forklift to elevate personnel to perform
preventative maintenance on the pulverizers in violation of Dynegy company
policy; and
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9. Dynegy instructed Defcon regarding which pulverizers required maintenance and
the scope of work for each one.

(See Response, Doc. 48, Pg. ID 1220-21.)
But, dispositively, none of the facts on which Plaintiff relies to establish a duty
demonstrate that Dynegy directed, instructed, or required Plaintiff to perform the action
that ultimately injured him in any particular way. To the contrary, most of these facts
constitute mere supervision or a general concern for safety, (see 1-5 above), which is
undeniably insufficient to constitute active participation. Dynegy' s policies regarding
machinery and how its own employees perform work on the pulverizers (see 6-7 above)
do not show active participation as to how Defcon performed its operations. Rather, it
shows that Dynegy had its own policies and did not actively control or participate in
Defcon's work.
Further, the fact that Dynegy' s Contractor Liaison observed Defcon' s employees
utilize the work basket attached to the forklift to elevate personnel to perform
preventative maintenance on the pulverizers, which violated Dynegy company policy,

(see 8 above) similarly does not establish active participation. Mere knowledge of the
contractor's work, even a safety violation, does not amount to active participation. Cornell

v. Mississippi Lime Co., 95 N.E.3d 923, 936 (Ohio Ct. App. 2017). Finally, the fact that
Dynegy informed Defcon which pulverizers needed maintenance and the scope of what
needed to be performed similarly fails to show active participation, as this shows that
Dynegy provided only the endpoint-not how Defcon needed to perform the work.

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In sum, Plaintiffs do not raise a dispute of material fact that show that Dynegy
exercised any control over the manner in which Defcon or Plaintiff performed work on
the pulverizer.
b.

Exercise Critical Variables in the Workplace

Even when a property owner did not control the workplace activities related to
the accident, courts may also find active participation when the property owner
"exercise[d] control over a critical variable in the workplace." Sopkovich, 693, N.E.2d at
243. Nonetheless, "[a]n owner's knowledge of the dangerous conditions ... and perhaps
the necessity for further safety measures, does not constitute control over a critical
workplace variable when the independent contractor has knowledge of the same facts."

Bell v . DPL, Inc., No. 98CA663, 1999 WL 713589, at *5 (Ohio Ct. App. Aug. 31, 1999)
(emphasis in original). Instead, "critical variable analysis looks to the owner's control
over 'the working environment,' rather than control over the actual activities the
independent contractor's employees performed, as the basis for liability." Jolly, 500 F.
Supp. 3d at 672 (citing Sopkovich, 693 N.E.2d at 244).
However, Plaintiff does not identify a variable that Dynegy controlled.
Presumably, the relevant variable would be the forklift and work basket. But nowhere
does Plaintiff argue or point to evidence showing that Dynegy controlled the forklift or
work basket. To the contrary, the evidence shows that Defcon selected and supplied its
own equipment, including the forklift and work basket. Again, mere supervision is
insufficient to establish active participation.

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2.

Safe Working Environment: Did Dynegy Assume a Duty?

As noted above, Section 324(A) generally governs the question of whether an
entity assumes a duty. Section 324(A) Restatement (Second) of Torts (1965). As such, the
threshold question is whether the defendant undertook to render services to or for the
benefit of the plaintiff. Merrill, 118 F. App'x at 44. The Sixth Circuit has acknowledged
that a "general corporate-wide safety program, safety awards and general safety
guidelines are insufficient to create a duty on [its] part." Id. But the performance of
specific actions that "went beyond mere oversight or consultation" could create a duty.

Id. For example, when the parent company had taken actions specifically directed to
remedy the safety issue that ultimately caused the plaintiff's injuries. See id. at 45-46
(citing Johnson v. Abbe Eng'g Co., 749 F.2d 1131, 1133 (5th Cir. 1984) (parent corporation's
duty to protect its subsidiary's employees arises "when the defendant has 'undertaken to
inspect the specific instrument causing the injury or to inspect the entire plant of which
that instrument was a part."'))
Here, as previously discussed, none of Plaintiff's arguments or even the expert's
opinions go beyond identifying general corporate safety policies, supervision, or general
concern for safety. As such, they are insufficient to show that Dynegy assumed a duty.

See id.; McAtee v. Fluor Constructors International, Inc., No. 98-5927, 1999 WL 685928, *6 (6th
Cir. Aug. 27, 1999) (concluding that broad allegations that the parent company was
responsible for "plant safety" was insufficient under Section 324(A), instead requiring
evidence that the parent company "specifically undertook to render safety services with
respect to Plaintiff's work near [the instrumentality that caused his injury]").
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CONCLUSION

For the reasons discussed above, Defendants' Motions for Summary Judgment
(Docs. 40, 41) are GRANTED.
IT IS SO ORDERED.

UNITED ST ATES DISTRICT COURT
DISTRICT OF O 0

~1rERN
By: ~ VV\~'"\J't +lc

,u....,,,u,.____

JUDGE MATTHEW W. McFARLAND

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