The opinion
[Cite as Roseberry v. Diepenbrock, 2017-Ohio-8788.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY
MATTHEW ROSEBERRY,
PLAINTIFF-APPELLANT, CASE NO. 1-17-29
v.
STEVEN DIEPENBROCK, ET AL., OPINION
DEFENDANTS-APPELLEES.
Appeal from Allen County Common Pleas Court
Trial Court No. CV 2016 0328
Judgment Affirmed
Date of Decision: December 4, 2017
APPEARANCES:
Kevin W. Attkisson for Appellant
J. Alan Smith for Appellee, Steve Diepenbrock
Case No. 1-17-29
SHAW, J.
{¶1} Plaintiff-appellant, Matthew Roseberry (“Roseberry”), brings this
appeal from the July 10, 2017, judgment of the Allen County Common Pleas Court
granting summary judgment in favor of defendant-appellee, Steven Diepenbrock
(“Diepenbrock”). On appeal, Roseberry argues that the trial court erred in granting
Diepenbrock summary judgment and dismissing Roseberry’s complaint.
Relevant Facts and Procedural History
{¶2} Diepenbrock is the owner of a home at 3280 Ada Road in Lima, Ohio.
Diepenbrock has lived in the home for twenty-five years since it was originally built.
When the home was built, Diepenbrock was involved in overseeing some of the
construction and he also did some of the electrical work with his father-in-law.
{¶3} In early July of 2014, Diepenbrock and some others were sitting on his
deck and they saw a number of bats, perhaps as many as 50, coming out of the
roof/attic by a “dormer” or “gable vent.” (Diepenbrock Depo. at 8). Diepenbrock
went into the attic to see if he could find any sign of bats living there. The attic was
unfinished and not used for storage space. It was accessible via a ladder that came
out of the ceiling in a closet on the north side of the house. Diepenbrock did not
notice any sign of bats in the attic when he originally checked, so he called
Terminex, a pest control company, to have them inspect his residence.
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{¶4} Terminex sent Roseberry out to inspect Diepenbrock’s home on July
22, 2014. Roseberry had been employed by Terminex for less than 2 years at the
time, doing inspections and providing quotes for pest control. Those pests included
termites, bugs, ants, bats, rodents and wildlife.
{¶5} Roseberry arrived at Diepenbrock’s residence at approximately 9 a.m.
on July 22, 2014. Diepenbrock informed Roseberry about the suspected bat
problem and they walked around the perimeter of the house together to observe the
area where Diepenbrock had seen the bats. Afterward, Roseberry was led to the
attic by Diepenbrock.
{¶6} At the top of the ladder in the attic was a plywood platform to stand on.
However, the remainder of the attic flooring was not covered, exposing struts,
insulation, and drywall. There was a stretch of wooden planks placed on certain
spots on the floor allowing easier access to various parts of the attic.
{¶7} Through his employment with Terminex, Roseberry had been trained
in working in attics, dealing with ladders and heights. His training for attics
instructed him to step on the struts and stay on a clear path. He was specifically
instructed to avoid stepping on drywall and he was aware of the risks of falling
through drywall in an attic. He had worked in attics 20-30 times previously.
{¶8} When Roseberry entered Diepenbrock’s attic, he stood first on the
plywood landing. Diepenbrock indicated to Roseberry that he should walk on the
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wooden plank walkway, that the boards were secure and that Diepenbrock had
walked on them numerous times himself. Despite Diepenbrock’s assurances,
Roseberry tapped each board as he walked across them, checking for firmness to
make sure they were solid. It was his standard procedure, and Roseberry indicated
that he did not rely on Diepenbrock’s statement that they were secure; rather, he
wanted to verify for himself that the boards were secure, “[b]ecause you never trust
anybody’s true thoughts or what they say.” (Roseberry Depo. at 54).
{¶9} While Roseberry was walking across one of the boards, he dropped,
falling through the drywall in the ceiling 18 feet to the floor in the living room below
the attic. His arms caught briefly on the struts on the way down. The plank he had
been walking on fell with him, unbroken, to the floor below.
{¶10} Diepenbrock, who had been standing on the ladder to the attic
observing, went down and called an ambulance for Roseberry. Shortly thereafter,
Roseberry was taken to the hospital and treated for his injuries, which included
multiple broken bones in his left leg and bruising to his arms. The breaks resulted
in multiple surgeries, 12 screws put into his feet and some ongoing issues with
mobility.
{¶11} After the incident, Diepenbrock had his ceiling repaired, and he put
the plank back in the attic, noting that it was slightly too short (perhaps an inch to
an inch and a half) and that it was the only plank in the attic that was not screwed
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down. Diepenbrock indicated he had no knowledge of the plank being too short, or
that it was not fastened down. He stated he had been in the attic at least 10-20 times
over the years walking over the planks, including twice in July looking for bats
before Roseberry came out to inspect for Terminex.
{¶12} Diepenbrock indicated that he could not remember whether the
builders of the house put the planks in the attic or whether he had. Roseberry
testified in his deposition that Diepenbrock told him that Diepenbrock had installed
them. Regardless, Diepenbrock indicated that he had no knowledge of any issues
with the plank.
{¶13} On June 13, 2016, Roseberry filed a complaint against Diepenbrock
and the Bureau of Worker’s Compensation. Roseberry alleged that he was injured
as a result of Diepenbrock’s negligence. Roseberry indicated that the Bureau of
Worker’s Compensation may have an interest in the action due to potentially paying
medical bills, expenses or other benefits to Roseberry; however, the Bureau filed an
answer indicating it had no interest in the litigation as Terminex was a self-insured
employer, and thus any subrogation rights belonged to the employer.
{¶14} On June 22, 2016, Diepenbrock filed an answer denying negligence.
{¶15} The matter proceeded through discovery with depositions being taken
of both Diepenbrock and Roseberry. Following the depositions, on May 30, 2017,
Diepenbrock filed a motion for summary judgment, alleging that the activity
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Roseberry was engaged in was a dangerous activity, that he was aware of the
potential dangers of working in an attic, and that Diepenbrock had no superior
knowledge of any of the dangers in the attic.
{¶16} On June 13, 2017, Roseberry filed a response, claiming that it was
undisputed that Roseberry was an invitee and was owed a duty of ordinary care.
Roseberry indicated that merely operating in an attic was not an open and obvious
danger, and that the plank that fell was certainly not open and obvious. Roseberry
also argued that Diepenbrock was on at least constructive notice of the defect, if not
actual notice, and thus had superior knowledge since he told Roseberry he installed
the planks.
{¶17} On June 20, 2017, Diepenbrock filed a reply in support of summary
judgment.
{¶18} On July 10, 2017, the trial court filed a judgment entry analyzing the
issues and ultimately granting summary judgment in favor of Diepenbrock. The
trial court determined that Roseberry was an invitee on the premises and that he was
owed a duty of ordinary care to maintain the premises in a reasonably safe condition
for use, but the owner had “no duty to remedy inherent hazards necessarily present
because of [the] character of work to be done.” (Doc. No. 31) citing Schwarz v. Gen
Elec. Realty Corp, 163 Ohio St. 354 (1995). The trial court cited authority
indicating that an owner of a premises would not be liable for an injury resulting
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from a danger inherent in a task when the injury was reasonably foreseeable to the
independent contractor. Id. citing Wellman v. East Ohio Gas Co., 160 Ohio St. 103
(1953), at paragraph 2 of the syllabus.
{¶19} The trial court found that it was undisputed that Roseberry was aware
of the dangers of working in an attic, that it was undisputed that Roseberry tested
each plank before he walked onto it, and that it was undisputed that Roseberry did
not rely on any statements made by Diepenbrock that the planks were secure. Thus
the trial court determined that Diepenbrock should be awarded summary judgment.
{¶20} The trial court went on to address an additional argument by
Roseberry, wherein Roseberry argued that an exception should apply permitting
liability in this instance if the owner actively participated in the work that was being
done by the independent contractor. The trial court found that Diepenbrock’s
actions of providing Roseberry with a flashlight and leading him to the attic did not
constitute participation. The trial court thus awarded summary judgment in
Diepenbrock’s favor and dismissed Roseberry’s complaint.
{¶21} It is from this judgment that Roseberry appeals, asserting the following
assignments of error for our review.
Assignment of Error No. 1
Whether the Trial Court erred by ruling that there was no
genuine issue of material [fact as to] whether the Appellant was
engaged in an inherently dangerous activity and sustained the
Appellee’s Motion for Summary Judgment.
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Assignment of Error No. 2
Whether the Trial Court erred by ruling that there was no
genuine issue of material fact [as to] whether the Appellee actively
participated in the activity that resulted in the Appellant’s
injuries and sustained the Appellee’s Motion for Summary
Judgment.
{¶22} As the discussion is interrelated, we elect to address the assignments
of error together.
First and Second Assignments of Error
{¶23} In Roseberry’s first assignment of error, he argues that the trial court
erred by granting Diepenbrock’s motion for summary judgment. Specifically, he
argues that the trial court erred in finding that Roseberry was engaging in a
dangerous activity with open and obvious hazards that precluded liability, and that
the trial court erred in finding that Diepenbrock lacked superior knowledge of the
purported hazard. In Roseberry’s second assignment of error, he argues that the
trial court erred in determining that Diepenbrock did not participate in Roseberry’s
work.
Standard of Review
{¶24} We review a trial court’s decision on a motion for summary judgment
de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996). Thus, this
Court conducts an independent review of the evidence and arguments that were
before the trial court without deference to the trial court’s decision. Ohio N. Univ.
v. Charles Constr. Servs., Inc., 3d Dist. Hancock No. 5-16-01, 2017-Ohio-258, ¶ 16,
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citing Brown v. Cty. Commrs. of Scioto Cty., 87 Ohio App.3d 704, 711 (4th
Dist.1993) (citation omitted).
{¶25} Pursuant to Civ.R. 56(C), summary judgment is appropriate only
under the following circumstances: (1) no genuine issue of material fact remains to
be litigated, (2) the moving party is entitled to judgment as a matter of law, and (3)
viewing the evidence most strongly in favor of the nonmoving party, reasonable
minds can come to but one conclusion, that conclusion being adverse to the
nonmoving party. Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 66
(1978). “When seeking summary judgment on grounds that the non-moving party
cannot prove its case, the moving party bears the initial burden of informing the trial
court of the basis for the motion and identifying those portions of the record that
demonstrate the absence of a genuine issue of material fact on an essential element
of the non-moving party’s claims.” Lundeen v. Graff, 10th Dist. Franklin No. 15AP-
32, 2015-Ohio-4462, ¶ 11, citing Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996).
Once the moving party meets its initial burden, the nonmovant must set forth
specific facts demonstrating a genuine issue for trial. Dresher at 293.
Relevant Authority
{¶26} In this case, Roseberry alleges that Diepenbrock was negligent. “It is
fundamental that in order to establish a cause of action for negligence, the plaintiff
must show (1) the existence of a duty, (2) a breach of duty, and (3) an injury
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proximately resulting therefrom.” Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d
79, 2003-Ohio-2573, ¶ 8, citing Menifee v. Ohio Welding Prod., Inc., 15 Ohio St.3d
75, 77 (1984).
{¶27} It is undisputed that Roseberry was an “invitee,” and that Diepenbrock
owed the duty of “ ‘exercising ordinary care to maintain the premises in a reasonably
safe condition for use in a manner consistent with the invitation, and to inform the
invitee of hazardous conditions of the premises and activities thereon unknown by
and not obvious to the invitee.’ ” Schwarz v. General Elec. Realty Corp., 163 Ohio
St. 354, 358 (1955), quoting Bosjnak v. Superior Sheet Steel Col., 145 Ohio St. 538
(1945). Nevertheless, an owner is not an insurer of an invitee’s safety and owes no
duty to protect invitees from open and obvious dangers on the property. Strayer v.
Cox, 2d Dist. Miami No. 2015-CA-6, 2015-Ohio-2781, ¶ 30, quoting Blair v.
Vandalia United Methodist Church, 2d Dist. Montgomery No. 24082, 2011-Ohio-
873, ¶ 15.
{¶28} The Supreme Court of Ohio has held that under the common law of
negligence,
[w]here 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.
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One who engages an independent contractor to do work for him
ordinarily owes no duty of protection to the employees of such
contractor, in connection with the execution of the work, who
proceeds therewith knowing and appreciating that there is a
condition of danger surrounding its performance.
Wellman v. East Ohio Gas Co., 160 Ohio St. 103 (1953) at paragraphs 1 and 2 of
syllabus; Szotak v. Moraine Country Club, Inc., 2d Dist Montgomery No. 21618,
2007-Ohio-2974, ¶ 13.
{¶29} “In other words, owners of premises do not owe a duty of protection
to independent contractors or the employees of independent contractors that they
employ, even when the work being performed is inherently dangerous.” Cracraft
v. Dayton Power & Light Co., 2d Dist. Montgomery No. 26808, 2016-Ohio-3272,
¶ 12, appeal not allowed, 147 Ohio St.3d 1437, citing Lacey v. Sports Award,
Inc., 2d Dist. Montgomery No. 21346, 2006–Ohio–4401, ¶ 23, citing Routzahn v.
Garrison, 2d Dist. Montgomery No. 21190, 2006–Ohio–3652, ¶ 49. “The
independent contractor is presumed to know and appreciate that there is a danger
surrounding the performance of the work it has undertaken.” Cracraft
citing Szotak at ¶ 13, citing Wellman at paragraph two of the syllabus.
{¶30} Notably, there is an exception to the rule announced in Wellman,
which Roseberry argues is applicable in this case. In Hirschbach v. Cincinnati Gas
& Elec. Co., 6 Ohio St.3d 206 (1983), the Supreme Court of Ohio held that
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One who engages the services of an independent contractor, and
who actually participates in the job operation performed by such
contractor and thereby fails to eliminate a hazard which he, in the
exercise of ordinary care, could have eliminated, can be held
responsible for the injury or death of an employee of the
independent contractor.
Hirschbach at syllabus.
Analysis
{¶31} The vast majority of the facts in this case are undisputed. Roseberry
worked for Terminex and was dispatched to the home of Diepenbrock to investigate
a potential problem with bats. Prior to Roseberry’s arrival, Diepenbrock had been
in the attic twice in July of 2014 to look for evidence of bats. Diepenbrock had been
in his attic a number of times over the years since the home was built, using the
planks that were on the floor to get around. He had no knowledge that one plank
was slightly too small or that it was not fastened down (even assuming the plank
was the reason for Roseberry’s fall).
{¶32} Roseberry had been trained to work in attics, and he had been trained
regarding the dangers inherent in working in attics. When Roseberry went into
Diepenbrock’s attic, Diepenbrock told him to walk on the planks and that they were
secure. However, Roseberry stated affirmatively that he did not rely on
Diepenbrock’s statements, and that he checked each plank by tapping his foot on it
before stepping onto it. Then, while traversing the planks, Roseberry fell through
the attic onto the living room floor 18 feet below.
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{¶33} On appeal, Roseberry first argues that the trial court erred in finding
that he was engaging in work that had real or potential danger. Contrary to this
argument, Roseberry explicitly stated in his deposition that he had been trained in
working in dangerous areas such as attics and that he was aware from his training
that a fall from an attic could result in serious injury or even death. Roseberry was
trained in how to maneuver through an attic, and to avoid stepping on drywall or
insulation. The nature of Roseberry’s activity would fall under work that had real
or potential danger, even by Roseberry’s own admissions. See Strayer v. Cox, 2d
Dist. Miami No. 2015-CA-6, 2015-Ohio-2781, ¶¶ 33-34 (finding that where
plaintiff cut down a limb from a deteriorating tree, danger of deteriorating limb
falling was open and obvious, and plaintiff, given his experience, was in better
position to observe potential defects than owner due to his training and experience);
Detrick v. Heidtman Steel Products, Inc., 677 Fed.Appx. 240 (6th Cir.2017) (“[O]ne
of the reasons individuals are rarely found in attics is due to the dangerous
conditions often present therein. It is likely that an average person would know of
the risks associated with working in an attic[.]”). Working in an unfinished attic
would pose the open and obvious potential danger of falling. Roseberry was aware
of this danger. His argument on this issue is thus not well-taken.
{¶34} Roseberry next argues that the trial court erred in finding that
Diepenbrock exercised ordinary care in maintaining the premises and that the trial
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court erred in finding that Diepenbrock did not have superior knowledge of any
defect with the plank that fell. While Roseberry may argue that Diepenbrock should
have been aware of a potential problem with one of his planks in his attic, there is
absolutely no evidence that Roseberry was actually aware of any such problem. In
fact, the only evidence indicates that Diepenbrock was entirely unaware of any
issues with the plank in his attic. He had traversed the planks in the attic at least
twice in the month preceding Roseberry’s fall, including just days before
Diepenbrock’s fall, and he did not notice any issues at that time. See Waite v.
Thomas Emery’s Sons, 32 Ohio Law Abs. 521, 32 N.E.2d 764, 765 (1st Dist.1940)
(“The fact that [a plank in an attic] gave way may not be taken in itself as proof that
the [owner] was negligent. Only speculation can present a situation which would
justify conclusion fixing liability upon the defendant.”).
{¶35} Notwithstanding the fact that there is no evidence whatsoever that
Diepenbrock had any knowledge of any issues with the plank in question, Roseberry
explicitly stated that he did not rely on any assurances made by Diepenbrock that
the planks were stable. Therefore, we fail to see any evidence that Diepenbrock did
not exercise reasonable care or that he breached a duty owed to Roseberry and
Roseberry’s first assignment of error is overruled.
{¶36} In Roseberry’s second assignment of error, he argues that there was an
exception permitting liability in these circumstances if Diepenbrock, as the
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homeowner, actively participated in the work. “For purposes of establishing
liability * * * ‘actively participated’ means that the [individual] 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., 72 Ohio St.3d 332 (1995) at syllabus,
quoting Cafferkey v. Turner Constr. Co., 21 Ohio St.3d 110 (1986).
{¶37} The evidence in the record indicates that Diepenbrock showed
Roseberry around his home and that he showed Roseberry how to access the attic.
Diepenbrock lent Roseberry a powerful flashlight when Roseberry discovered the
batteries were dead in his. Diepenbrock was on the ladder to the attic while
Roseberry was in the attic, and Diepenbrock stated to Roseberry to stay on the
planks in the attic. All of this is very typical of a homeowner showing a problem to
someone coming to fix it or investigate it. None of Diepenbrock’s actions amount
to anything remotely resembling actual participation in the work, even assuming
that such an exception applied in these circumstances. Thus we cannot find that the
trial court erred in awarding summary judgment to Diepenbrock on this issue.
Roseberry’s second assignment of error is therefore overruled.
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Conclusion
{¶38} For the foregoing reasons Roseberry’s assignments of error are
overruled and the judgment of the Allen County Common Pleas Court is affirmed.
Judgment Affirmed
PRESTON, P.J. and ZIMMERMAN, J., concur.
/jlr
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