Volume 143 — North Eastern Reporter, Third Series

Where a utility worker was injured by an out-of-control vehicle driven by an impaired driver in a utility construction zone, the trial court did not err in granting summary judgment in favor of the defendant, an independent contractor hired to create a work zone and provide traffic control services, as the traffic-control provider did not control or actively participate in the critical acts that led to the utility worker's injuries and no duty was owed to the utility worker as he had been engaged in work in an inherently dangerous work environment – a utility construction zone. Furthermore, no duty of care was owed to the injured utility worker pursuant to Section 6E.07 of the Ohio Manual on Uniform Traffic Control Devices (OMUTCD) as the section of the OMUTCD relied on by the plaintiffs set forth mere guidance for flagging operations and a duty of care exists only where the standards contained in the state-adopted manual are mandatory or "standard statements," not "guidance statements." Finally, the manner in which the traffic-control providers stood inside the work zone for a meeting called by the utility worker's foreman did not create a duty under the 2 Restatement of the Law 2d, Torts, Section 323 (1965), as the manner in which the traffic-control providers stood did not put the injured utility worker in a worse position than he would have been in had the traffic-control providers chosen to stand elsewhere and there was no suggestion that the injured utility worker forwent some other method of protecting himself in reliance on where the traffic-control providers stood.

Because neither the plaintiff nor the defendant filed a claim (or counterclaim) for declaratory judgment and because a "motion for a declaratory judgment" is a nullity, the trial court did not err by refusing to consider a motion for summary judgment and the memorandum in opposition as "motions for declaratory judgment." Where a student drove members of a club team to and from a tournament in a personal vehicle without the knowledge of the University and in violation of University policy, he was not an agent of the University and the University could not be liable through the doctrine of respondeat superior.

Appropriation of property