COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 74867 THOMAS MARTICH : : ACCELERATED DOCKET PLAINTIFF-APPELLANT : : JOURNAL ENTRY vs. : : AND NORTHERN CHEMICAL BLENDING : CORPORATION : OPINION : DEFENDANT-APPELLEE : PER CURIAM : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 10, 1998 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas, Case No. CV-327837. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: ________________________________ APPEARANCES: For Plaintiff-appellant: John A. Lancione, Esq. Lancione & Simon, P.L.L. 1717 Bond Court Building 1300 East Ninth Street Cleveland, Ohio 44114 For Defendant-appellee: Timothy G. Sweeney, Esq. Quandt, Giffels and Buck Co., LPA 800 Leader Building Cleveland, Ohio 44114 -2- PER CURIAM: An accelerated appeal is authorized pursuant to App.R. 11.1 and Loc.R. 25. The purpose of an accelerated docket is to allow an appellate court to render a brief and conclusory decision. Crawford v. Eastland Shopping Mall Assn. (1983), 11 Ohio App.3d 158; App.R. 11.1(E). Plaintiff-appellant Thomas M. Martich ( Martich ), d.o.b. June 16, 1973, appeals from the granting of summary judgment in favor of defendant-appellee Northern Chemical Blending Corporation ( NCBC ). For the reasons adduced below, we affirm. A review of the record on appeal indicates that on the morning of January 17, 1997, Martich, an employee of Schaefer Plumbing, Inc., was on the premises of NCBC to help remove a defective hot water tank and replace it with a new unit. Martich was accompanied by another plumber, Thomas Schaefer ( Schaefer ).1 Schaefer considered Martich to be under his supervision at the time. Schaefer deposition at 35. The defective tank was located on a platform above the lunch room, approximately ten to twelve feet above the floor. Prior to starting the work on the day of the incident, Schaefer told the son of NCBC's owner that the plumbers needed some help to get the tank down from its elevated location. Id. at 16. The NCBC employee advised Schaefer that they would provide help when needed, and to just call and they would have someone assist 1Martich is the brother-in-law of Thomas Schaefer. -3- them. Id. at 17. The plumbers then went up to the tank and disconnected the gas line and drained the tank of water. Martich deposition at 37. Schaefer testified that he told NCBC that the plumbers would need the assistance of a forklift, and the office supplied an NCBC employee to operate a forklift. Schaefer deposition at 17, 20; Martich deposition at 37, 38-39. Brian Hendrick ( Hendrick ), an employee of NCBC, testified that Schaefer had asked permission to use a forklift, but Hendrick said that he (Hendrick, not Schaefer) would operate the forklift in removing the tank from the platform; that Hendrick would not permit Schaefer to operate the forklift. Hendrick deposition at 18. Hendrick drove a forklift to the scene and was positioned by the plumbers to lift the defective tank from its location and move the new tank into position. Scheafer deposition at 17; Martich deposition at 39-40. Hendrick placed a wooden pallet on the forks of the towmotor and raised the pallet to the level of the platform and placed the pallet onto the platform. Martich testified that either the plumbers or Hendrick made the decision to use the pallet; he could not remember who made the decision. Martich deposition at 44. The old tank was placed from the platform to the pallet by Schaefer and Joe Sudnick (who was doing ductwork at the NCBC premises) as Martich watched from ground level. Hendrick operated the forklift so as to pick up the pallet containing the old tank. As the forklift backed up to lift the pallet and the old tank from the platform, and the forklift began to lower its forks, the old tank, which was in a tipped position, became wedged against the upper -4- portion of the forklift mast, stopping the descent of the mast. Hendrick decided at that point to obtain another forklift so as to free the raised cargo on the original forklift, but was convinced by Martich, despite continued misgivings by Hendrick, to move the towmotor away from the platform and physically push the old tank from the pallet to the floor below without the use of a second forklift. Hendrick deposition at 23-25, 39; Martich deposition at 48-49. According to Hendrick, only Martich suggested that the tank be pushed from the pallet and dropped to the floor. Hendrick deposition at 26. Hendrick then scaled up the mast of the towmotor and began to maneuver the tank so as to free it from the mast. Martich, without prompting or direction by Hendrick, then climbed up the towmotor mast and assisted Hendrick. Martich deposition at 49-50, 54. As the two men stood on the mast of the forklift, Martich advised Hendrick as to the plan of attack: Q. When you climbed onto the mast did you have any discussion then with the operator? A. Yeah, I said, one, two, three, and we were going to shove it off. Martich deposition at 53. Martich did not recall having any discussions with Schaefer before climbing up the mast. Id. at 61-62. The two men were successful in freeing the tank and dropping it from the pallet to the floor. As the tank left the raised pallet, the mast of the towmotor dropped, amputating three of -5- Martich's toes on his right foot which were in the path of the descending mast and fracturing his left elbow. NCBC filed for summary judgment on January 13, 1998, arguing assumption of the risk, loaned servant doctrine and, by extension, fellow servant immunity. Attached to this motion were deposition transcripts, affidavits and photographs of the forklift showing warning labels. Plaintiff filed his brief in opposition to summary judgment, with affidavits and deposition transcripts and an expert's report attached, on February 12, 1998. Both parties filed supplemental material in support of their respective positions. The trial court granted summary judgment without opinion or elucidation using a half-sheet status form entry. This accelerated appeal presents the following lone assignment of error: THE TRIAL COURT ERRED IN GRANTING THE MOTION FOR SUMMARY JUDGMENT OF DEFENDANT-APPELLEE NORTHERN CHEMICAL BLENDING CORPORATION. The court notes that the standard of review for a summary judgment ruling was generally stated in State ex rel. Zimmerman v. Tompkins (1996), 75 Ohio St.3d 447, 448-449, as follows: Civ.R. 56(C) provides that before summary judgment may be granted, it must be determined that (1) no genuine issue as to any material fact remains to be litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the party against whom the motion for summary judgment is made. State ex rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511, 628 N.E.2d 1377, 1379, citing Temple v. Wean United, Inc. (1977), 50 -6- Ohio St.2d 317, 327, 4 O.O.3d 466, 472, 364 N.E.2d 267, 274. * * * Summary judgment is appropriate where the nonmoving party does not produce evidence on any issue for which that party bears the burden of production at trial. Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108, 570 N.E.2d 1095, paragraph three of the syllabus; State ex rel. Morley v. Lordi (1995), 72 Ohio St.3d 510, 513, 651 N.E.2d 937, 940. When a motion for summary judgment is made and supported as provided in Civ.R. 56, the nonmoving party may not rest on the mere allegations of his pleading, but his response, by affidavit or as otherwise provided in Civ.R. 56, must set forth specific facts showing that there is a genuine triable issue. Civ.R. 56(E); Jackson v. Alert Fire & Safety Equip., Inc. (1991), 58 Ohio St.3d 48, 52, 567 N.E.2d 1027, 1031. Also see Celotex v. Catrett (1986), 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265. Subsequent to Tompkins, in the recent case of Kulch v. Structural Fibers, Inc. (1997), 78 Ohio St.3d 134, 144-145, the Ohio Supreme Court limited the third paragraph of the syllabus of Wing, supra, by reasserting reliance on Dresher v. Burt (1996), 75 Ohio St.3d 280, 293: [A] party seeking summary judgment, on the ground that the nonmoving party cannot prove its case, 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 the essential element(s) of the nonmoving party's claims. The moving party cannot discharge its initial burden under Civ.R. 56 simply by making a conclusory assertion that the nonmoving party has no evidence to prove its case. Rather, the moving party must be able to specifically point to some evidence of the type listed in Civ.R. 56(C) which affirmatively demonstrates that the nonmoving -7- party has no evidence to support the nonmoving party's claims. If the moving party fails to satisfy its initial burden, the motion for summary judgment must be denied. However, if the moving party has satisfied its initial burden, the nonmoving party then has a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing there is a genuine issue for trial and, if the nonmovant does not so respond, summary judgment, if appropriate, shall be entered against the nonmoving party. (Footnote omitted; Italicization in original.) In our review of the motion for summary judgment, we are also mindful that such appellate review is de novo. Koos v. Cent. Ohio Cellular Inc. (1994), 94 Ohio App.3d 579. The loaned servant doctrine was expressed in Dirksing v. Blue Chip Architectural Products, Inc. (1994), 100 Ohio App.3d 213, 224: "When one party loans his servant to another for a particular employment in the business and under the direction of the latter, the servant, for anything done in that employment, must be regarded as the servant of the party to whom he is loaned, although he remains the general servant of the party who loaned him." Halkias v. Wilkoff (1943), 141 Ohio St. 139, 25 O.O. 257, 47 N.E.2d 199, paragraph four of the syllabus, overruled on other grounds in Helmick v. Republic-Franklin Ins. Co. (1988), 39 Ohio St.3d 71, 529 N.E.2d 464. " '[I]n determining whether, in respect of a particular act, a servant, in the general employment of one person, who has been loaned for the time being to another is the servant of the original employer or the person to whom he has been loaned, the test is whether in the particular service which he is engaged to perform, the servant continues liable to the direction and control of his general employer or becomes subject to that of the person to whom he is lent,--whether the latter is in control as proprietor so that he can at any time stop or continue the work and determine the way in which it is to be done, with -8- reference not only to the result reached but to the method of reaching it.' " (Citations omitted.) Halkias, supra, at 152, 25 O.O. at 262, 47 N.E.2d at 205, quoting 35 American Jurisprudence 970, Section 541. The evidence indicates that Schaefer requested help from NCBC to complete the job and was told that assistance would be provided upon asking. It was Schaefer who sought out the use of a forklift. It was the plumbers who positioned the forklift at the scene. When the tank became stuck in the mast of the forklift, it was Martich who originated the plan to push the tank off the raised pallet and drop the tank to the floor, effectively overruling the alternative plan of Hendrick. There is no evidence demonstrating that NCBC controlled or directed the plumbers in executing the manner of the replacement of the water tank. Accordingly, the trial court would not have erred had it concluded that Hendrick was a loaned servant and granted summary judgment on that basis. Assignment overruled. Judgment affirmed. -9- It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. ______________________________ JOHN T. PATTON, P.J. ______________________________ JAMES D. SWEENEY, J. ______________________________ KENNETH A. ROCCO, J., DISSENTS, WITH DISSENTING OPINION ATTACHED. N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 25(A); Loc. App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E), unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 74867 THOMAS MARTICH : : Plaintiff-appellant : DISSENTING : vs. : OPINION : NORTHERN CHEMICAL BLENDING : CORPORATION : : Defendant-appellee : DATE: DECEMBER 10, 1998 KENNETH A. ROCCO, J. DISSENTING: The record in this case discloses genuine issues of material fact which, in my opinion, precluded summary judgment for NCBC. Therefore, I would reverse the trial court's judgment and remand this case for trial. NCBC's motion for summary judgment raised three issues for the court's consideration: whether appellant's claims were barred by the loaned servant doctrine and by fellow-servant immunity; and whether appellant assumed the risk of his injury. Under the loaned servant doctrine, the test for determining whether a particular act is performed on behalf of the original employer or the person to whom a servant is loaned is whether in the particular service which he is engaged to perform, the servant continues liable to the direction and control of his general employer or becomes subject to that of the person to whom he is lent ***. Halkias v. Wilkoff (1943), 141 Ohio St. 139, 152. I believe there is a genuine issue of material fact as to whether Hendrick was a loaned servant of Schaefer Plumbing or whether he was employed by NCBC when appellant was injured on the forklift. Though Hendrick was assisting Schaefer Plumbing in the -2- performance of its contract, he was not entirely under its control. He made many decisions on his own, and there is evidence that Schaefer Plumbing was relying on his expertise. On the evidence presented, I believe reasonable minds could reach different conclusions on the loaned servant issue, and a jury should resolve it. Cf. Dirksing v. Blue Chip Architectural Products, Inc. (1994), 100 Ohio App. 3d 213, 224 (no genuine issue of material fact on same issue). Fellow servant immunity is inapplicable to this case. Appellant did not sue Hendrick himself, but only sued NCBC. Finally, NCBC argued it owed no duty to appellant to warn him of the danger of climbing onto the mast of a tow motor and appellant assumed the risk of his own injury. (Presumably, NCBC was asserting primary assumption of the risk, a complete defense, not comparative negligence since that was the only theory under which it would have been entitled to judgment as a matter of law.) This argument was a red herring. Appellant did not claim NCBC had a duty to warn him of the general dangers of climbing on a tow motor. Hendrick's deposition testimony implies that appellant's injury was caused by the sudden drop of the mast once the wedged tank was removed. Hendrick said he was aware of this danger because he previously had experienced a similar drop and claims he exercised care to avoid it. There is no evidence appellant was aware of this danger. Under these circumstances, I cannot say as a matter of law NCBC owed no duty to appellant. Cf. Sopkovich v. Ohio Edison Co. (1998), 81 Ohio St.3d 628, 643 ( A duty of care [to an independent contractor] may be found to exist where a property owner *** retains or exercises control over a critical variable in -3- the workplace. ). Any comparative negligence by appellant was a .