The appeals court last month affirmed the trial court, ruling there was no genuine issue of material fact as to whether property developer Donald Wright participated in work that led to the death of James B. Rogers.
Rogers, 33, of Winchester, died after being crushed in a trench that collapsed while he installed a sewer pipe in the building of a Washington Twp. residence.
Tara Brown, Rogers’ sister and the administrator of his estate, originally sued KRW Plumbing Inc.; Richard Williams, owner of KRW Plumbing; South Dayton Builders and Remodelers Inc.; South Dayton owner Timothy Dickey and real estate developer Donald C. Wright, who owned the lot and hired South Dayton, which in turn hired KRW.
Claims against Dickey and Williams were dismissed after they filed for bankruptcy, the appeals court recounted. After case consolidation and Brown’s settlement with South Dayton, Wright was the sole defendant.
One issue in the case was Brown’s contention that Wright and South Dayton failed to preserve electronic evidence in the case, a situation in which — as the appellate court put it — those sued “lost five cell phones which allegedly contained hundreds of text message between Wright (Don and his son Scott) and Dickey.”
Wright argued that he hired South Dayton to build a house, and that he had no authority over the building of the trench.
The appeals court ruled that for Brown to prevail, she had to show that Wright “actively participated in the building process.”
In a November 2022 hearing, the trial court declined to impose a liability judgement or adverse jury instructions against Wright in the matter of the lost phones. The court did find, however, that Wright and South Dayton had an obligation to preserve evidence “that they should have known was relevant to the suit.”
Later, in 2023, the court did not agree to jury instructions that phone texts contained evidence that Wright “controlled a critical variable in the work environment such that you might find (Wright) liable for the death of James Rodgers.”
The court also excluded an affidavit — a written statement signed under oath — from an expert for the plaintiff, David Gardner.
The court ruled that the affidavit “was not based on personal knowledge, but assumptions.”
As the court described the affidavit’s content, it argued that the cell phones contained text messages showing that the driveway was poured out of sequence “because the project was delayed in its completion and Scott Dickey owed the Wrights significant money.”
But there was no evidence that Gardner saw the purported text messages, the court ruled.
Shortly before trial was to begin in January 2024, Wright’s attorney asked the court to reconsider a previous decision overruling a 2020 motion for summary judgement. That request was granted a few weeks later.
Craig Matthews, an attorney for Brown, declined to comment. A message seeking comment was sent to attorneys representing the appellees.
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