[Cite as Collias v. Redburn, 2012-Ohio-2128.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

WYANDOT COUNTY 

 

WILLIAM JAMES COLLIAS, 

 PLAINTIFF-APPELLANT, CASE NO. 16-11-10 

 v. 

RON REDBURN, ET AL., O P I N I O N 

 DEFENDANTS-APPELLEES. 

 

Appeal from Wyandot County Common Pleas Court 

Trial Court No. 09-CV-0071 

Judgment Affirmed 

Date of Decision: May 14, 2012 

 

APPEARANCES: 

Shane M. Leuthold for Appellant 

John A. Fiocca, Jr. for Appellee, John Butcher 

Ronald Redburn, Appellee 

Larry P. Meyer for Appellee, Wyandot Co. Agricultural Society 
Case No. 16-11-10 

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WILLAMOWSKI, J. 

{¶1} Plaintiff-Appellant, William James Collias (“Collias”), appeals the 

judgment of the Wyandot County Court of Common Pleas granting summary 

judgment in favor of Defendant-Appellee, Wyandot County Agricultural Society 

(“the WCAS”), and also dismissing Collias’ claims against Defendant-Appellee, 

John Butcher (“Butcher”). On appeal, Collias contends that the trial court erred in 

granting summary judgment in favor of the WCAS on the basis of immunity. 

Collias also claims that the trial court should not have dismissed his claims against 

Butcher for Collias’ failure to respond to discovery and his failure to substitute 

Butcher’s Estate pursuant to Civ.R. 25. For the reasons set forth below, the 

judgment is affirmed. 

{¶2} On April 14, 2009, Collias filed this current action, claiming that he 

suffered personal injury when he was a vendor at the Wyandot County Fair in 

September of 2005. Collias alleges that he received an electrical shock due to 

improper electrical connections when he opened the door to his trailer at the 

fairgrounds. As a result of this shock, Collias maintains that he suffered severe 

and debilitating injuries. 

{¶3} In September of 2005, Collias set up his vendor’s trailer at the 

Wyandot County Fair in Upper Sandusky, Ohio. Butcher was an electrician 

working at the fair and he connected Collias’ trailer to the electrical panel/power 
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source. Butcher also connected the trailer of another vendor, Defendant Ron 

Redburn (“Redburn”), to the same electrical source. However, Collias alleges that 

Redburn’s trailer’s electrical system was improperly wired and, as a result, when it 

was connected to the electrical panel it “energized” Collias’ trailer causing it to 

shock anyone or anything that touched it. This problem was discovered when 

Collias’ dog and another worker received strong electrical shocks. The trailers 

were then disconnected, and the problem was investigated. 

{¶4} Collias claims that Redburn’s trailer was again hooked up to the 

electrical control panel the following day. However, the problem apparently had 

not been remedied and Collias claims it again caused an electric current to flow 

through Collias’ trailer. Collias was shocked when he touched the door of his 

trailer. The WCAS represents that Collias’ version of the sequence of events is 

not supported by the evidence in the record. However, the details pertaining to 

these facts are not material to the issues that were before the trial court and that are 

in dispute in this appeal. 

{¶5} Collias filed his original complaint against Redburn, Butcher, the 

WCAS, and the Wyandot County Fair1

 on September 13, 2007, in Wyandot 

County Civil Case No. 07-CV-0170, alleging multiple counts of negligence 

against the defendants and also requesting declaratory judgment finding that 

 

1

 The WCAS’s attorney represents that there is no such entity as the “Wyandot County Fair,” and that the 

WCAS is the only entity involved in operating the fair. 
Case No. 16-11-10 

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Butcher was an employee of WCAS and had acted maliciously, in bad faith, and in 

a reckless, willful, and wonton manner. However, due to Collias’ failure to 

comply with the defendants’ discovery requests, the trial court dismissed the 

complaint against all defendants, without prejudice, on April 14, 2008. 

{¶6} One year later, on April 14, 2009, Collias again filed his Complaint, 

Wyandot County Civil Case No. 09-CV-0071, against the same defendants.2

 

Butcher and WCAS filed motions to compel discovery and filed motions for 

sanctions to dismiss pursuant to Civ.R. 37 if Collias failed to comply with 

discovery orders. On September 11, 2009, without conducting a hearing, the trial 

court granted WCAS’s motion for sanctions and dismissed Collias’ complaint 

against all parties, with prejudice. 

{¶7} Collias appealed this decision. On May 24, 2010, this Court reversed 

the judgment of the trial court and remanded for further consideration. See Collias 

v. Redburn, et al., 3d Dist. No. 16-09-18, 2010-Ohio-2296 (hereinafter, “Collias 

I”). We held that “[a]lthough the trial court could reasonably impose sanctions 

pursuant to Civil Rule 37 due to the untimeliness [of Collias’ discovery 

responses], a hearing should have been held on the matter before judgment 

 

2

 Defendant Redburn is not a party to this appeal. The case and trial against Redburn has been stayed 

pending the outcome of this appeal against the WCAS and Butcher. The WCAS also filed a cross-claim 

against Redburn, stating that the terms of the vendor contract obligate Redburn to defend, indemnify and 

hold harmless the WCAS. Part of Collias’ complaint against the WCAS contends that the WCAS failed to 

ascertain that Redburn had the required insurance before it issued a vendor’s permit to Redburn and 

allowed him to locate his trailer on the premises. Redburn’s Answer denies that there was anything wrong 

with his equipment and claims that Butcher incorrectly connected the wires. (May 19, 2009 Answer of Ron 

Redburn) 
Case No. 16-11-10 

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granting dismissal with prejudice was entered since the record indicates that 

Collias did eventually comply with the [discovery] order.” Id. at ¶ 8. We further 

stated that “[a]lthough this Court is sympathetic to WCAS and Butcher’s 

frustration, the record does not contain sufficient evidence that the answers given 

were inadequate or the reasons for the prior dismissal.” Id.

{¶8} Upon remand, a telephone pretrial was held on July 28, 2010, during 

which it was disclosed that Butcher had died. Butcher’s attorney then filed a 

Notice of Suggestion of Death.3

 (Feb. 10, 2011 Judgment Entry, p. 3) On October 

26, 2010, pursuant to this Court’s directive, the trial court held a hearing on the 

motions for discovery sanctions. (Id., p. 4) Although Collias responded to the 

requests for discovery one day prior to the hearing, the defendants claimed there 

were still deficiencies. (Id.) At this time, Collias was also reminded of the need to 

substitute the Estate of Butcher as a defendant, and his counsel indicated that he 

planned to do so “pretty quick.” (Id.) The discovery issues remained unresolved, 

and in a November 30, 2010 judgment entry, the trial court advised Collias that he 

had ten days in which to respond to the defendants’ allegations of insufficient 

responses to their respective discovery requests. (Id., p. 5) 

{¶9} On December 22, 2010, the WCAS moved for summary judgment on 

the grounds that it was a political subdivision and entitled to immunity; that 

 

3

 Collias represents that Butcher had died on September 4, 2009, and that his attorney was remiss in not 

filing the suggestion of death sooner. 
Case No. 16-11-10 

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Butcher was not an employee, but rather an independent contractor whose 

methods and means were not under the control of WCAS; and, that Butcher’s 

services were performed in a proper manner and there was no evidence that he was 

negligent. Collias was granted an extension of time to file his response. After a 

non-oral hearing on the motions, the trial court granted summary judgment in 

favor of the WCAS on April 15, 2011. 

{¶10} While the motion for summary judgment was pending, on January 

18, 2011, Collias finally moved for an Order to substitute the Estate of John 

Butcher, deceased, for Defendant John Butcher. Butcher’s counsel filed a motion 

opposing the order, stating that it was untimely pursuant to Civ.R. 25(A)(1), and 

that the estate could not be substituted because it was already closed and had not 

been re-opened. 

{¶11} On February 10, 2011, the trial court filed its judgment entry, 

denying Collias’ motion to substitute the Estate of John Butcher, and ruling on the 

long-pending motions for the Civ.R. 37 discovery sanctions. The trial court held 

that the motion to substitute the estate was untimely and had missed the ninety-day 

statutorily imposed requirement. The trial court also granted the discovery 

sanctions pursuant to Civ.R. 37, noting that the history of the case clearly 

demonstrated that Collias had been given notice that dismissal was a possibility. 

(Feb. 10, 2011 J.E., p. 11) The trial court found that “[w]hen given the 
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opportunity to defend, [Collias] offered no evidence, no legitimate explanations, 

nor any reasonable effort on his part to acquire the requested discovery 

information.” (Id.) Accordingly, the trial court ordered that Collias’ complaint “is 

hereby dismissed as a sanction for failing to once again comply with this Court’s 

discovery orders; * * *.) (Id.) 

{¶12} On September 6, 2011, the trial court issued two judgment entries 

relating to the February 10, 20114

 and the April 15, 2011 judgment entries, noting 

that the judgments were final judgments as to fewer than all of the parties, but they 

failed to contain the Civil Rule 54(B) certification language. Accordingly, the trial 

court ordered the language be added to each of the two judgment entries, stating 

that “there is no just reason for delay and the dismissal is a final appealable order.” 

{¶13} It is from these judgments that Collias now appeals, raising the 

following three assignments of error for our review. 

First Assignment of Error 

The trial court erred when it granted summary judgment in 

favor of Appellee, Wyandot County Agricultural Society, on the 

grounds of immunity. 

Second Assignment of Error 

The trial court erred when it granted Defendant/Appellant, John 

Butcher’s motion to dismiss for failing to respond to discovery. 

 

4

 On February 15, 2011, the trial court issued a nunc pro tunc judgment entry to correct two errors on page 

11 of its February 10th judgment entry. The nunc pro tunc judgment entry substituted “Civil Rule 25” for 

the word “statute,” and it deleted the statement “This is a final appealable Order.” 
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Third Assignment of Error 

The trial court erred when it granted Appellee, John Butcher’s, 

motion to dismiss for failing to substitute his Estate pursuant to 

Ohio Civil Rule 25. 

First Assignment of Error -- Summary Judgment in Favor of WCAS 

{¶14} In the first assignment of error, Collias claims that the trial court 

erred when it granted summary judgment in favor of the WCAS on the basis of 

immunity. While Collias acknowledges that the WCAS qualifies as a political 

subdivision for purposes of establishing immunity under R.C. 2744.02(A)(1), he 

contends that this immunity is abrogated by R.C. 2744.02(B)(2), which renders a 

political subdivision liable “for injury, death, or loss to person or property caused 

by the negligent performance of acts by their employees with respect to 

proprietary functions.” (Appellant’s Br., p. 5) He further argues that even if 

Butcher was not an employee, the WCAS cannot be exempted from liability if 

Butcher was an independent contractor, because Butcher was negligent, the work 

was “inherently dangerous,” and the WCAS could not insulate itself from liability 

because of the “non-delegable duty” doctrine. Collias further asserts that the 

WCAS is not entitled to immunity because it was negligent for not hiring a chief 

inspector to inspect all of the concessions and that the WCAS was negligent for 

issuing a permit to a vendor (Redburn) who did not carry the required liability 

insurance. 
Case No. 16-11-10 

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{¶15} We review a decision to grant summary judgment de novo. Doe v. 

Shaffer, 90 Ohio St.3d 388, 390, 2000-Ohio-186. Summary judgment is proper 

where: (1) there is no genuine issue of material fact; (2) the moving party is 

entitled to judgment as a matter of law; and (3) reasonable minds can reach but 

one conclusion when viewing the evidence in favor of the non-moving party, and 

the conclusion is adverse to the non-moving party. Civ.R. 56(C); Grafton v. Ohio 

Edison Co., 77 Ohio St.3d 102, 105, 1996-Ohio-336 

{¶16} The Political Subdivision Tort Liability Act, as codified in R.C. 

Chapter 2744, requires a three-tiered analysis to determine whether a political 

subdivision should be allocated immunity from civil liability. Hubbard v. Canton 

City School Bd. of Edn., 97 Ohio St.3d 451, 2002-Ohio-6718, ¶ 10. 

First, R.C. 2744.02(A)(1) sets out a general rule that political 

subdivisions are not liable in damages. In setting out this rule, R.C. 

2744.02(A)(1) classifies the functions of political subdivisions into 

governmental and proprietary functions and states that the general 

rule of immunity is not absolute, but is limited by the provisions of 

R.C. 2744.02(B), which details when a political subdivision is not 

immune. Thus, the relevant point of analysis (the second tier) then 

becomes whether any of the exceptions in R.C. 2744.02(B) apply. 

Furthermore, if any of R.C. 2744.02(B)'s exceptions are found to 

apply, a consideration of the application of R.C. 2744.03 becomes 

relevant, as the third tier of analysis. 

Greene Cty. Agricultural Soc. v. Liming, 89 Ohio St.3d 551, 556–557, 2000-Ohio486; Monteith v. Delta Productions, Inc., 3d Dist. Nos. 3-07-35, 3-07-36, 2008-

Ohio-1997, ¶ 15. Collias concedes that the WCAS was a political subdivision 
Case No. 16-11-10 

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engaged in a governmental or proprietary function, fulfilling the first tier of the 

analysis. The statute states that: “[e]xcept as provided in division (B) of this 

section, a political subdivision is not liable in damages in a civil action for injury, 

death, or loss to person or property allegedly caused by any act or omission of the 

political subdivision or an employee of the political subdivision in connection with 

a governmental or proprietary function.” R.C. 2744.02(A). 

{¶17} The issue is whether any of R.C. 2744.02(B)’s exceptions to 

WCAS’s political subdivision immunity are applicable. The exception under R.C. 

2744.02(B)(2) states that “ * * * political subdivisions are liable for injury, death, 

or loss to person or property caused by the negligent performance of acts by their 

employees with respect to proprietary functions of the political subdivisions.” 

(Emphasis added.) Although the parties dispute whether or not Butcher performed 

his duties negligently, and whether or not the activities involved “proprietary 

functions,” the evidence in the record that Butcher was an independent contractor 

was not controverted. Even if we were to assume for the sake of discussion that a 

proprietary function was involved, the WCAS has no liability for Butcher because 

he was an independent contractor. See Monteith v Delta, supra, at ¶¶ 18 and 25; 

Howell v. City of Canton, 5th Dist. No. 2007CCA0-0035, 2008-Ohio-5558, ¶¶ 39-

44; Weldon v. Prairie Township, 10th Dist. No. 10AP-311, 2010-Ohio-5562, ¶ 13. 
Case No. 16-11-10 

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{¶18} Furthermore, Collias’ argument concerning a non-delegable duty is 

not relevant to a political subdivision. WCAS’s immunity does not derive from 

the common law, but rather from statute – R.C. Chapter 2744. There is no 

exception in the application of R.C. Chapter 2744 for an inherently dangerous 

activity. The statute must be given its plain meaning. The statutory immunity 

exception requires negligence by an employee, and the definition of “employee” 

does not include an independent contractor, nor does it hinge on the type of work 

performed. See R.C. 2744.01(B). None of the cases cited by Collias involved a 

political subdivision. “Nothing in R.C. Chapter 2744 creates an exception when 

an independent contractor performs a nondelegable duty.” Trotwood v. S. Cent. 

Constr., L.L.C., 192 Ohio App.3d 69, 2011-Ohio-237, ¶ 38 (2d Dist.) Therefore, 

the nondelegable-duty doctrine does not abrogate statutory immunity for a 

political subdivision. Id. 

{¶19} In addition, the decision to utilize the services of Butcher was an 

exercise of judgment and discretion and the WCAS is immune from liability in the 

absence of any evidence that the decision was exercised with the characteristics 

enumerated in R.C. 2744.03(A)(5). That statute states that a “political subdivision 

is immune from liability if the injury, death, or loss to person or property resulted 

from the exercise of judgment or discretion in determining whether to acquire, or 

how to use, equipment, supplies, materials, personnel, facilities, and other 
Case No. 16-11-10 

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resources unless the judgment or discretion was exercised with malicious purpose, 

in bad faith, or in a wanton or reckless manner.” Id. 

{¶20} Also, Collias’ complaint that the WCAS was negligent for failing to 

hire an inspector under R.C. 1711.11 is misplaced. This section of the code is not 

related to electrical inspections. Likewise, Collias’ assertion that the WCAS failed 

to obtain proof of Redburn’s liability insurance in not related to the cause of the 

alleged injury to Collias. The absence of such insurance does not create a cause of 

action in Collias’ favor against the WCAS. 

{¶21} Accordingly, we find that the trial court did not err in granting 

summary judgment in favor of WCAS on the basis of its immunity as a political 

subdivision. The first assignment of error is overruled. 

Second Assignment of Error – Dismissal Pursuant to Civ.R. 37 

{¶22} Collias’ second assignment of error submits that the trial court erred 

when it granted Butcher’s motion to dismiss for failing to respond to discovery 

orders pursuant to Civ.R. 37. Collias argues that the facts in the record do not 

support the trial court’s sanction; that he did file notices of supplemental discovery 

answers on February 9 and 16, 2011; and, that he was making an effort to resolve 

the issue of providing the older records and records were “still trickling in” even 

after the case was dismissed. Collias contends that he was providing information 

and was not being evasive. 
Case No. 16-11-10 

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{¶23} Civ.R. 37(B) provides various sanctions for failure to comply with 

discovery, including the harshest sanction of dismissal of the action. Civ.R. 

37(B)(2)(c). Ohio courts have long recognized that the interests of justice are 

better served when courts address the merits of claims rather than using procedural 

devices to resolve pending cases. Moore v. Emmanuel Family Training Center, 

Inc., 18 Ohio St.3d 64, 70 (1985). In determining whether the sanction of 

dismissal is warranted, the trial court should consider “the history of the case; all 

the facts and circumstances surrounding the noncompliance, including the number 

of opportunities and the length of time within which the faulting party had to 

comply with the discovery or the order to comply; what efforts, if any, were made 

to comply; the ability or inability of the faulting party to comply; and such other 

factors as may be appropriate.” Foley v. Nussbaum, 2d Dist. No. 24572, 2011-

Ohio-6701, 31, quoting Russo v. Goodyear Tire & Rubber Co., 36 Ohio App.3d 

175, 178 (9th Dist.1987). 

{¶24} Civ.R. 41(B)(1) permits a trial court to dismiss an action for failure 

to comply with a court order, but only after notice to plaintiff's counsel. 

Hillabrand v. Drypers Corp., 87 Ohio St.3d 517, 518, 2000-Ohio-468. The Ohio 

Supreme Court has held that a dismissal with prejudice is proper only “when 

counsel has been informed that dismissal is a possibility and has had a reasonable 

opportunity to defend against dismissal.” Quonset Hut, Inc. v. Ford Motor Co., 
Case No. 16-11-10 

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80 Ohio St.3d 46 (1997), at the syllabus. “[T]he notice requirement of Civ.R. 

41(B)(1) applies to all dismissals with prejudice, including those entered pursuant 

to Civ.R. 37(B)(2)(c) for failure to comply with discovery orders.” (Emphasis sic.) 

Ohio Furniture Co. v. Mindala, 22 Ohio St.3d 99, 101 (1986). “The purpose of 

notice is to ‘provide the party in default an opportunity to explain the default or to 

correct it, or to explain why the case should not be dismissed with prejudice.’” 

Logsdon v. Nichols, 72 Ohio St.3d 124, 128 1995-Ohio-225 (citations omitted). 

{¶25} A trial court has broad discretion when imposing discovery sanctions 

and a reviewing court shall review these rulings only for an abuse of discretion. 

Vaught v. Cleveland Clinic Found., 98 Ohio St.3d 485, 2003-Ohio-2181, ¶ 13. 

The discovery rules give the trial court great latitude in crafting 

sanctions to fit discovery abuses. A reviewing court's responsibility 

is merely to review these rulings for an abuse of discretion. “‘The 

term discretion itself involves the idea of choice, of an exercise of 

the will, of a determination made between competing 

considerations.’” State v. Jenkins (1984), 15 Ohio St.3d 164, 222, 

15 OBR 311, 361, 473 N.E.2d 264, 313, quoting Spalding v. 

Spalding (1959), 355 Mich. 382, 384-385, 94 N.W.2d 810, 811-812. 

In order to have an abuse of that choice, the result must be so 

palpably and grossly violative of fact or logic that it evidences not 

the exercise of will but the perversity of will, not the exercise of 

judgment but the defiance of judgment, not the exercise of reason 

but instead passion or bias. Id. 

Nakoff v. Fairview Gen. Hosp., 75 Ohio St.3d 254, 256, 1996-Ohio-159. 

{¶26} This case has been pending for many years, during which time 

Collias has been served with numerous discovery requests and orders to comply 
Case No. 16-11-10 

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with those requests. The trial court has dismissed the case two times, once without 

prejudice, and once with prejudice, for Collias’ failure to obey. However, in an 

effort to be certain that Collias had proper notice and the benefit of every 

opportunity to have his case tried on the merits, we ordered that the trial court 

reinstate his case and give him another opportunity to comply with the discovery 

requests. See Collias I. 

{¶27} Pursuant to our decision in Collias I, the trial court sent notice that a 

hearing on the Motion for Sanctions was to be held on September 1, 2010. Collias 

asked for and was granted a continuance and the hearing was rescheduled to 

October 26, 2010. The day before the hearing, Collias responded to Butcher’s 

request for discovery that had originally been made in May of 2009. Because the 

defendants did not have sufficient time to review the materials to determine 

whether they were responsive, additional time was provided for such a review, and 

then Collias was further granted additional time to respond when it was discovered 

that the discovery was still not sufficiently responsive. He again failed to comply. 

{¶28} In its judgment entry, the trial court discussed its findings as follows: 

At the hearing on the Motion for Sanctions/Dismissal, [Collias] 

offered no evidence and only generalized statements that [Collias] 

was unable to obtain the material and was unwilling to explore 

different avenues to obtain the information and documents. The 

alleged incident upon which the Complaint was based occurred in 

2005. Discovery from [Collias] has been sought since 2007. 

[Collias] continues to promise compliance but given the years that 
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have passed without full compliance, the Court may have little 

confidence that it will be forthcoming. * * * 

The court is aware that dismissal is a severe sanction, but it would 

appear appropriate in light of the continued disobedience of [Collias] 

of this Court’s Orders concerning discovery, the lack of effort on the 

part of [Collias] to obtain the requested material and the continued 

delay tactics employed by [Collias]. In light of Defendant Butcher’s 

death, delay has also certainly prejudiced this Defendant’s case. 

[Collias] had no reasonable explanation for his failure to respond to 

the Defendants’ discovery requests on the Court’s Order to Compel. 

[Collias] had no legitimate reason why he waited until the day before 

the October hearing on sanctions to partially comply with the 

discovery requests and the Court’s Order. * * * Further, [Collias’] 

comments that additional information will be forwarded when 

received offers the specter of a discovery process with no end in 

sight. 

(Feb. 10, 2011 J.E., pp. 8-10) 

{¶29} Given the lengthy history of this case, it is evident that Collias has 

had ample opportunity to respond to the long-standing requests for discovery and 

that he has had sufficient notice of the possibility of dismissal if he continued to 

ignore the trial court’s orders. We can discern no abuse of discretion in the trial 

court’s dismissal of Collias’ case. The second assignment of error is overruled. 

Third Assignment of Error – Substitution of Estate 

{¶30} In the third and final assignment of error, Collias submits that the 

trial court erred when it granted Butcher’s motion to dismiss for failing to 

substitute his estate pursuant to Civ.R. 25. However, since our decision pertaining 

to the second assignment of error, upholding the dismissal of the case against 
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Butcher as a discovery sanction pursuant to Civ.R. 37, is dispositive of the case, 

this assignment of error is moot and need not be addressed. 

{¶31} Having found no error prejudicial to the Appellant herein in the 

particulars assigned and argued, we affirm the judgment of the trial court. 

Judgment Affirmed 

PRESTON and ROGERS, J.J., concur. 

/jlr