ORDER DENYING DEFENDANT TERRACON CONSULTANTS, INC.'S MOTION TO DISMISS (Doc. 52)

TIMOTHY S. BLACK, District Judge.

This civil action is before the Court on Defendant Terracon Consultants, Inc.'s Motion to Dismiss Plaintiff's Amended Complaint (Doc. 52) and the parties' responsive memoranda (Docs. 59, 60).1

I. FACTS AS ALLEGED IN THE AMENDED COMPLAINT

For purposes of this motion to dismiss, the Court must: (1) view the complaint in the light most favorable to Plaintiff; and (2) take all well-pleaded factual allegations as true. Tackett v. M&G Polymers, 561 F.3d 478, 488 (6th Cir. 2009).

Jostin Construction, Inc. ("Jostin") employed Plaintiff to work as a concrete finish supervisor at the Cincinnati Horseshoe Casino project ("Casino Project"). (Doc. 49 ¶ 1). On January 27, 2012, metal decking gave way while a concrete floor was being poured at the Casino Project, causing the floor to collapse out from under Plaintiff. (Id. at ¶ 14). As a result, Plaintiff fell 25 feet and suffered severe injuries. (Id. at ¶¶ 14, 16).

Plaintiff brings claims against a number of Defendants, all of whom had responsibilities related to the Casino Project. (See Doc. 49 at ¶¶ 3-8). Defendant Terracon Consultants, Inc. ("Terracon") provided engineering and safety consulting services for the Casino Project. (See id. at ¶ 5).

(Doc. 49 at ¶ 15). Defendants either supervised or actively participated in Plaintiff's work. (Id. at ¶ 11). Specifically, Defendant Terracon, at all times relevant and upon information and belief, "acted in a supervisory capacity or actively participated in Plaintiff's work through its responsibility to provide engineering and safety consulting services for the Casino Project." (Doc. 49 at ¶ 15).

Plaintiff asserts a negligence claim against Defendants. (Doc. 49 at ¶¶ 14-20). Plaintiff also asserts a claim for punitive damages, allegedly because Defendants acted with malice, having shown a conscious disregard for the rights and safety of others that had a great probability of causing substantial harm. (Doc. 49 at ¶¶ 33-35).

II. STANDARD OF REVIEW

A motion to dismiss brought pursuant to Fed. R. Civ. P. 12(b)(6) operates to test the sufficiency of the complaint and permits dismissal of a complaint for "failure to state a claim upon which relief can be granted." To show grounds for relief, Fed. R. Civ. P. 8(a) requires that the complaint contain a "short and plain statement of the claim showing that the pleader is entitled to relief."

While Fed. R. Civ. P. 8 "does not require `detailed factual allegations,' . . . it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)). Pleadings offering mere "`labels and conclusions' or `a formulaic recitation of the elements of a cause of action will not do.'" Id. (citing Twombly, 550 U.S. at 555). In fact, in determining a motion to dismiss, "courts `are not bound to accept as true a legal conclusion couched as a factual allegation[.]'" Twombly, 550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265 (1986)). Further, "[f]actual allegations must be enough to raise a right to relief above the speculative level[.]" Id.

Accordingly, "[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Iqbal, 556 U.S. at 678. A claim is plausible where "plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. Plausibility "is not akin to a `probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not `show[n]'—`that the pleader is entitled to relief,'" and the case shall be dismissed. Id. (citing Fed. R. Civ. P. 8(a)(2)).

III. ANALYSIS

Defendant Terracon seeks the dismissal of the claims asserted against it, with prejudice. (See Doc. 52 at 7). Defendant Terracon argues that Plaintiff has failed to allege any facts plausibly suggesting that Defendant Terracon owed a duty to Plaintiff under Ohio law, and, consequently, the negligence claim and the derivative punitive damages claim asserted against it must be dismissed. Plaintiff argues that he has pled facts sufficient to support a claim for relief against Defendant Terracon, as required by Fed. R. Civ. P. 8(a).

A. Negligence Claim2

"The existence of a duty in a negligence action is a question of law for the court to determine." Mussivand v. David, 45 Ohio St.3d 314, 318, 544 N.E.2d 265 (1989). "[W]hen two or more independent contractors are engaged in work on the same premises, it is the duty of each contractor, in prosecuting its work, to use ordinary and reasonable care not to cause injuries to the employees of another contractor." Kucharski v. Nat'l. Eng. Contracting Co., 69 Ohio St.3d 430, 434, 633 N.E.2d 515 (1994).3

However, "[a]n exception to the duty of ordinary care [has been] recognized for situations that involve[] inherently dangerous work." Ellis v. Time Warner Cable, Inc., 1st Dist. Hamilton No. C-120083, 2013-Ohio-240, at ¶ 8; cf. Wellman v. E. Ohio Gas Co., 160 Ohio St. 103, 113 N.E.2d 629 (1953), paragraph one of the syllabus ("Where 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.")

"There is no question that a construction site is inherently a dangerous setting." Pfaff v. Pahl Ready Mix Concrete, Inc., 6th Dist. Lucas No. L-01-1306, 2002 WL 126073, *4 (Feb. 1, 2002) (citing Bond v. Howard Corp., 72 Ohio St.3d 332, 336, 650 N.E.2d 416 (1995)); see also Michaels v. Ford Motor Co., 72 Ohio St.3d 475, 478, 650 N.E.2d 1352 (1995), n. 4 ("[A] subcontractor who works at a construction site is engaged in inherently dangerous work.").

Because a construction site is inherently dangerous, an independent contractor owes a duty of care to a second independent contractor's employee only where the independent contractor "actively participates" in the employee's work. See Pinkerton v. J & H Reinforcing, 4th Dist. Scioto Nos. 10CA3386 and 10CA3388, 2012-Ohio-1606, ¶¶ 25-26; Ellis, 2013-Ohio-240, at ¶ 11. The Supreme Court of Ohio has not adopted a definition of "active participation" in this context. See Pinkerton, 2012-Ohio-1606, ¶¶ 30-33.4

At this preliminary stage, Plaintiff adequately states negligence claim against Defendant Terracon. Plaintiff alleges that his employer, Jostin, and Defendant Terracon were hired to work as independent contractors at the Casino Project. (See Doc. 49 at ¶¶ 1, 5). By asserting that Defendant Terracon "acted in a supervisory capacity or actively participated in Plaintiff's work through its responsibility to provide engineering and safety consulting services for the Casino Project," Plaintiff alleges a fact that supports the conclusion that Defendant Terracon owed him a duty of care, despite the inherently dangerous setting. See Pinkerton, 2012-Ohio-1606, ¶¶ 25-26; Ellis, 2013-Ohio-240, at ¶ 8. It matters not that Plaintiff pleads this fact upon information and belief.5 Accordingly, Plaintiff's amended complaint contains "sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Iqbal, 556 U.S. at 678.

Defendant Terracon argues that Plaintiff's allegation that Defendant Terracon actively participated in his work is a bare legal conclusion. Whether Defendant Terracon actively participated is a factual inquiry and, at this preliminary stage, the Court must accept as true the facts pled by Plaintiff at this preliminary stage: namely, that Defendant Terracon was responsible for engineering and safety services and, in that capacity, supervised and actively participated in Plaintiff's work.

Plaintiff claims that it is impossible to know, absent further discovery, precisely what role Defendant Terracon played.6 A bare request for time to conduct discovery is insufficient to withstand a motion to dismiss. See New Albany Tractor, Inc. v. Louisville Tractor, Inc., 650 F.3d 1046, 1051 (6th Cir. 2011). Here, however, the amended complaint provides sufficient notice to Defendant Terracon of the nature of Plaintiff's negligence claim. Twombly, 550 U.S. at 555 (plaintiff's statement must "give the defendant fair notice of what . . . the claim is and the ground upon which it rests.). The federal rules still provide for notice pleading. Plaintiff has set forth a plausible claim, and, therefore, satisfies the standard.

B. Punitive Damages Claim

Plaintiff also seeks to recover against Defendant Terracon for punitive damages. (Doc. 49 at ¶¶ 33-35). A punitive damages claim is a derivative claim that must be dismissed where the primary claim is subject to dismissal. Vickers v. Wren Industries, Inc., 2d Dist. Montgomery No. 20914, 2005-Ohio-3656, at ¶¶ 63-65; see also Davison Fuel & Dock Co. v. Pickands Mather & Co., 54 Ohio App.2d 177, 181, 376 N.E.2d 965 (1st Dist. 1977) (citing Richard v. Hunter, 151 Ohio St. 185, 190, 85 N.E.2d 109 (1949)); Graham v. American Cyanamid Co., 350 F.3d 496, 514-15 (6th Cir. 2003). Because the Court declines to dismiss Plaintiff's negligence claim, Plaintiff's claim for punitive damages cannot be dismissed solely on the basis of its derivative nature.

Defendant Terracon claims that Plaintiff pleads no facts to establish that Defendant Terracon acted with malice. Specifically, Defendant Terracon argues that Plaintiff's allegation that Defendants showed a conscious disregard for the rights and safety of others is a legal conclusion, which is not entitled to the assumption of truth. Iqbal, 556 U.S. at 664. Defendant Terracon also argues that the fact that the statement appears at the end of Plaintiff's amended complaint further indicates that it is a legal conclusion. (Doc. 39 at ¶34)

However, in setting forth his claim for punitive damages, Plaintiff incorporates the facts previously pled. Because Plaintiff alleged that Defendant Terracon was responsible for engineering and safety services (Doc. 49 ¶ 5), the Court can infer that Defendant Terracon knew of the dangers of failing to provide proper safety programs and failing to ensure the strength and structural integrity of the flooring being built due to inadequate bolts and welds. (Id. ¶ 15). Accordingly, the Court finds that Plaintiff adequately states a claim for punitive damages.

IV. CONCLUSION

Accordingly, for the foregoing reasons, Defendant Terracon Consultants, Inc.'s motion to dismiss (Doc. 52) is DENIED.

IT IS SO ORDERED.