Brown v. KRW Plumbing, Inc.

[Cite as Brown v. KRW Plumbing, Inc., 2024-Ohio-5944.]

IN THE COURT OF APPEALS OF OHIO

SECOND APPELLATE DISTRICT

MONTGOMERY COUNTY

TARA BROWN :

:

Appellant : C.A. No. 30080

:

v. : Trial Court Case No. 2017 CV 05453

:

KRW PLUMBING, INC. et al. : (Civil Appeal from Common Pleas

: Court)

Appellees :

:

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OPINION

Rendered on December 20, 2024

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CRAIG T. MATTHEWS & DAVID M. DEUTSCH, Attorneys for Appellant

SUSAN M. SALYER, DAVID P. BOLEK & LAURENCE A. LASKY, Attorneys for Appellees

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EPLEY, P.J.

{¶ 1} Plaintiff-Appellant Tara Brown, on behalf of the Estate of James Rogers,

appeals from a judgment of the Montgomery County Court of Common Pleas which

granted Defendant-Appellee Donald C. Wright’s motion for summary judgment in this suit

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regarding liability for the death of Rogers. For the reasons that follow, the judgment of the

trial court will be affirmed.

I. Facts and Procedural History

{¶ 2} In 2015, Donald Wright (through his agent and son Scott Wright) and Don

Wright Realty, L.L.C., hired South Dayton Builders and Remodelers, which was owned

by Scott Dickey, to construct a model home on Claxton Glen Court in Centerville on a

parcel of land that Wright had owned since the early 1990s. The two entities had worked

together in the past on other projects, including a similar model home in Springboro.

{¶ 3} The build progressed mostly according to plan (though there was testimony

that the project was behind schedule) until June 2016, when the concrete driveway was

poured before the water and sewer lines at the house had been connected to the main

lines at the street. This was an issue because the pipes would run in very close proximity

to the driveway, so close, in fact, that the plumbing work - which would involve digging a

trench from the house to the street - could not be done with the driveway poured. The

driveway being poured out-of-order was a problematic surprise for South Dayton foreman

Jack Elsman, who testified that he had returned from vacation to find concrete poured

and then had to figure out how to get the plumbing connections from the house to the

street.

{¶ 4} Elsman testified that he wanted the whole driveway “taken up” to install the

water lines, but that idea was vetoed by South Dayton owner Scott Dickey because, as

Elsman explained, it would cost more money, and the company was in financial trouble.

In fact, evidence was presented that Wright loaned South Dayton $125,000.

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{¶ 5} Eventually, 80% of the concrete was removed, except for the sections closest

to the house. But even with much of the driveway removed, the task of getting the lines

from the house to the street was difficult; the trench had to be deep, and there was very

little space between it and the neighbor’s property.

{¶ 6} South Dayton hired KRW Plumbing to do the work, a company that Elsman

described as “bottom of the barrel.” Richard Williams, the owner of KRW, testified at his

deposition that he was an indoor plumber and that he was not familiar with the specific

safety requirements involved with excavating and trenching. KRW did not have the proper

equipment to do a job of this magnitude either; South Dayton had to rent a backhoe so

KRW could dig the trench.

{¶ 7} According to testimony, the trench was approximately 10-12 feet deep, 3 feet

wide, and about 50 feet long, stretching from the house to the street. There were several

issues, though, that compromised the safety of the project. First, because the trench was

so close to the property line, the “spoils” (the excavated dirt) were placed on the edge of

the trench, not at least two feet away to comply with safety standards. Second, because

of the narrowness of the trench and the tight quarters with the neighboring property, the

trench did not have an “angle of repose,” a gradual sloping which reduces the potential

for cave-ins. Finally, there was no “trench box” to secure the sides of the trench.

{¶ 8} At approximately 1:30 p.m. on June 15, 2016, KRW employee James Rogers

was working in the trench when it collapsed, burying him alive. Others on-site rushed to

his aid, trying to dig him out, but their efforts were unsuccessful, and Rogers died. His

body was recovered many hours later.

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{¶ 9} Brian Weiss, an Ohio Bureau of Workers’ Compensation investigator, arrived

on the scene within 45 minutes. He testified that he had observed “fissures” in the trench

on the side where the spoils had been placed and believed that the weight of the dirt on

the edge of the trench wall had been a factor in the collapse. He also testified that

Rogers’s body was found within one foot of the driveway slab that had not been removed,

near the garage.

{¶ 10} On November 21, 2017, Tara Brown, Rogers’s sister and the administrator

of his estate, filed her initial complaint against KRW, Williams, South Dayton, Dickey, and

Wright. The claim asserted causes of action for wrongful death and survivorship. In

January 2018, Wright filed his answer and a cross complaint against KRW, Williams,

South Dayton, and Dickey for indemnification and contribution. Claims against Dickey and

Williams were dismissed after they filed for bankruptcy, and then in June 2019, Brown

filed a new complaint which was almost identical to the first, but with Williams as the only

defendant. After the 2017 and 2019 cases were consolidated, KRW and Williams were

granted summary judgment and South Dayton settled with Brown, leaving Wright as the

only defendant.

{¶ 11} On March 3, 2020, Wright filed a motion for summary judgment. In it, he

argued that although he had hired South Dayton to build the house, he had not assumed

any control or authority over the process or digging the trench. He further claimed that he

had not “actively participated” or “controlled a critical variable” in the work environment

and therefore was not liable for the trench collapse that claimed Rogers’s life. A

supplemental memorandum was filed in May 2021.

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{¶ 12} Instead of filing a substantive response to the motion for summary

judgment, in August 2021, Brown filed a motion for sanctions against Wright and South

Dayton, asserting that they had failed to preserve electronically-stored evidence when

they lost five cell phones which allegedly contained hundreds of text messages between

Wright (Don and his son, Scott) and Dickey. At least some of the messages, according to

Brown, discussed the Claxton Glen project. Brown stated that she could not file a

response to the motion for summary judgment because she did not have the

electronically-stored evidence, chiefly the purported text messages. As a sanction, Brown

sought an order from the court entering judgment on the issue of liability, or alternatively,

an order giving an “adverse inference” to support the denial of summary judgment.

{¶ 13} On September 1, 2022, the trial court overruled Wright’s motion for

summary judgment, finding that there were genuine issues of material facts as to Wright’s

liability, including that the Claxton Glen project had been behind schedule, that South

Dayton had been having financial difficulties and had not been paying vendors and

suppliers, that Wright had made a $125,000 loan to the builder, that Dickey could not

explain why the driveway had been installed out of sequence, and that Dickey did not

know who made the decision to pour the driveway.

{¶ 14} Then, on November 17, 2022, the court preliminarily declined to impose a

liability judgment or adverse jury instruction against Wright for the loss of the cell phones.

The court did, however, conclude that Wright and South Dayton had had a duty to

preserve evidence that they should have known was relevant to the suit. It further stated

that there was no way to determine how much Brown was prejudiced by not having the

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phones or whether Wright and South Dayton had acted intentionally to deprive her of the

evidence. Accordingly, it held off on making a final decision on Brown’s request for the

adverse inference until after a hearing could be conducted.

{¶ 15} Following the hearing in 2023, the court denied Brown a liability judgment

and declined to order a jury instruction that the texts contained evidence that Wright

“controlled a critical variable in the work environment, such that you may find [him] liable

for the death of James Rogers.”

{¶ 16} Trial was set to begin on January 22, 2024, but on January 16, Wright filed

a motion in limine to exclude an affidavit from Brown’s expert, David Gardner. Wright

argued that Gardner’s affidavit and the opinions therein were based on an adverse

inference that Brown had not received and because he had stated in his deposition that

he had no evidence that Wright actively participated in or controlled a critical aspect of

the trench work. The court excluded the affidavit and its opinions.

{¶ 17} On the first day of trial, Wright made an oral motion, asking the court to

reconsider its previous decision overruling his March 2020 motion for summary judgment

in light of the exclusion of Gardner’s affidavit and its opinions. A few weeks later, the trial

court granted Wright’s motion for summary judgment.

{¶ 18} Brown has filed a timely appeal.

II. Summary Judgment

{¶ 19} Brown’s appeal raises three related assignments of error, all alleging that

the trial court erred (in different ways) when it granted Wright’s motion for summary

judgment.

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{¶ 20} Pursuant to Civ.R. 56(C), a movant is entitled to summary judgment when

that party demonstrates that there is (1) no issue as to any material fact; (2) that the

moving party is entitled to judgment as a matter of law; and (3) that reasonable minds can

come to only one conclusion, and that conclusion is adverse to the nonmoving party.

Rhododendron Holdings, LLC v. Harris, 2021-Ohio-147, ¶ 22 (2d Dist.).

{¶ 21} “The burden of demonstrating that no genuine issues exist as to any

material fact falls upon the moving party requesting a summary judgment.” Harless v.

Willis Day Warehousing Co., Inc., 54 Ohio St.2d 64, 66 (1978). Once the moving party

has satisfied its burden of showing that there is no genuine issue of material fact, the

burden shifts to the nonmoving party to set forth specific facts showing a genuine issue

for trial. Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996). The nonmoving party cannot rely

upon the mere allegations or denials in the pleadings but must give specific facts showing

that there is a genuine issue for trial. Civ.R. 56(E). Accord Geloff v. R.C. Hemm’s Glass

Shops, Inc., 2021-Ohio-394, ¶ 14 (2d Dist.).

{¶ 22} We review the trial court’s ruling on a summary judgment motion de novo.

Martcheva v. Dayton Bd. of Edn., 2021-Ohio-3524, ¶ 35 (2d Dist.).

{¶ 23} Ultimately, for Brown to be successful in this case, she must demonstrate

that Wright actively participated in the building process. The “active participation doctrine”

imposes a duty of care upon a property owner to an independent contractor involved in

an inherently dangerous activity on the property when the owner (1) directs the activity

resulting in the injury; (2) gives or denies permission for the critical acts that led to the

injury; or (3) retains or exercises control over a critical variable in the workplace that

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caused the injury. Hackney v. Ward, 2014-Ohio-4413, ¶ 15 (2d Dist.). “Absent ‘active

participation,’ . . . an owner cannot be liable in negligence due to the lack of a legal duty

owed to the . . . independent contractor.” Evans v. Dayton Power and Light Co., 2004-

Ohio-2183, ¶ 33 (4th Dist.). But before we can analyze whether there are any genuine

issues of material fact proving Wright actively participated in the project, we must address

Brown’s procedural concern.

III. Consideration of Excluded Affidavit

{¶ 24} In her first assignment of error, Brown argues that the trial court erred by

not considering Gardner’s affidavit when it granted Wright’s motion for summary

judgment. It is her contention that the trial court should have gone “back to square one”

when Wright asked it to reconsider the motion, and that included considering the excluded

affidavit.

{¶ 25} Civ.R. 56(C) specifies that a trial court, in deciding a case on summary

judgment, may examine “the pleadings, depositions, answers to interrogatories, written

admissions, affidavits, transcripts of evidence and written stipulations of fact, . . . timely

filed in the action.” Affidavit testimony must be based on personal knowledge and

admissible under the Rules of Evidence. Civ.R. 56(E); Reardon v. Hale, 2007-Ohio-4351,

¶ 22 (12th Dist.).

{¶ 26} We conclude that the trial court did not err by not considering the Gardner

affidavit because the affidavit was not based on personal knowledge, but assumptions.

The affidavit stated, “I take as true and assume the following: a) that the cell phones

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of Don Wright, Scott Wright, and Scott Dickey contained text message communications

pertaining to the pouring of the driveway on the Claxton construction project; b) that the

driveway was poured out of sequence because of pressure placed on Scott Dickey by

Donald Wright and/or Scott Wright because the project was delayed in its completion and

Scott Dickey owed the Wrights significant money.” (Emphasis added.) It was only based

on those assumptions that Gardner was able to opine that Wright had exercised control

over critical aspects of the construction. There was no evidence that he saw the purported

text messages confirming that either Don or Scott Wright told South Dayton to pour the

driveway out of order or that it was done to speed up the building process. In fact, there

was no evidence in the record that the missing cell phones had any text messages on

them.

{¶ 27} It was proper that the court did not consider the Gardner affidavit because

it was not based on personal knowledge as Civ.R 56(E) requires, but it would also have

been excluded by Evid.R. 703, which states, “The facts or data in the particular case upon

which an expert bases an opinion or inference may be those perceived by an expert or

admitted in evidence at the hearing.” Again, Gardner did not see – perceive – the text

messages. The opinion in the affidavit was solely based on assumptions of what the texts

might have contained.

{¶ 28} Brown’s first assignment of error is overruled.

IV. Genuine Issues of Material Fact

{¶ 29} In her remaining assignments of error, Brown argues that the trial court

erred by not properly considering evidence in her favor. We take that to mean the trial

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court erred by not finding that there were genuine issues of material fact that cut in

Brown’s favor, which would have allowed the suit to survive the Wright motion for

summary judgment. We agree with the trial court that there were no facts to be found that

could have led a reasonable mind to conclude that Wright exercised control over a critical

variable in the workplace that led to Rogers’s death.

{¶ 30} Elsman, South Dayton’s foreman or project manager for the job, testified

that while he would sometimes get calls or texts from Scott Wright regarding the

whereabouts of Dickey, the owner of South Dayton, “[w]e never talked literally anything

about the job.” Elsman Depo. at 12. And while there was testimony that Wright was “hands

on,” it was only in terms of making detail selections (like choosing the color of caulking)

or making change orders like changing bricks to stones. The following deposition

exchange is illustrative:

Q: What kind of input do you recall Scott Wright had into the job at Claxton Glen?

A: I mean, it was pretty much as most homeowners would go in and pick.

Q: Right. I got that, the colors and brick and all types of things.

A: Yeah.

Id. at 23-24.

{¶ 31} Scott Wright was also deposed. He testified that his responsibility in the

project was limited to signing the checks. Wright noted that he had never been provided

with a construction schedule for the project and had not asked for one. As to the work on

the trench, he testified that he did not know any of the subcontractors or about any costs

or details of the job because the construction contract required Dickey and South Dayton

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to pay for that sort of work. As to his contact with Dickey, Wright believed that his

conversations had been limited to payments and about a neighbor who had complained

about trash from the construction site. Most of the conversations on Claxton Glen were,

“Hey, I finished the rough-in carpentry, can I get my draw[?]” Wright did not believe he

had talked to Elsman about Claxton Glen.

{¶ 32} Scott Dickey similarly testified that Wright had almost no involvement in the

construction of the house and that the $125,000 loan he received from Scott Wright was

to help grow the company; he used it for capital.

{¶ 33} Finally, there was the deposition testimony of David Gardner, Brown’s

expert. He testified that there was no evidence of what the communication between

Wright and Dickey entailed and admitted that it was common for landowners to talk with

their builder. He also stated that there was no evidence that Wright had directed the

sequencing of the pouring of the concrete driveway or that he had controlled or supervised

the work done by KRW Plumbing. Finally, he had no opinion on whether Wright had

actively participated in any of the work done on the house.

{¶ 34} Based on the evidence in the record, we conclude that there was no

genuine issue of material fact as to whether Wright actively participated in the work that

caused Rogers’s death. The second and third assignments of error are overruled.

V. Conclusion

{¶ 35} The judgment of the trial court will be affirmed.

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WELBAUM, J. and BYRNE, V.J., concur.