Marshall v. Aaron

• Decision Date: 28 December 1984
• Docket Number: No. 83-1662,83-1662
• Citation: 472 N.E.2d 335,15 Ohio St.3d 48,15 OBR 145
• Parties: , 15 O.B.R. 145 MARSHALL, Appellant, v. AARON et al., Appellees.
• Court: Ohio Supreme Court

Page 48

15 Ohio St.3d 48

472 N.E.2d 335, 15 O.B.R. 145

MARSHALL, Appellant, v. AARON et al., Appellees.

No. 83-1662.

Supreme Court of Ohio.

Dec. 28, 1984.

Syllabus by the Court

Civ.R. 56 does not authorize courts to enter summary judgment in favor of a non-moving party.

Plaintiff-appellant, James L. Marshall, was injured when he fell from an electric transmission tower owned by defendant Cleveland Electric Illuminating Company ("CEI"). CEI had contracted with defendant Boyd E. Hart Company, Inc. ("Hart") for Hart to paint several of CEI's transmission towers. Defendant Edward Boord supervised the painting crew. Defendants Boord and Donald R. Aaron are partners in defendant ABco Industrial Painting ("ABco").

Plaintiff subsequently received workers' compensation benefits through Hart. He then filed suit against the above-named defendants, charging that their negligence proximately caused his injuries, and seeking damages therefor.

All defendants, with the exception of CEI, moved for summary judgment. The court of common pleas, without explanation or comment, granted the motion in favor of all defendants, including CEI, and dismissed the case.

The court of appeals affirmed. Summary judgment in favor of Boord, Aaron and ABco was upheld on the basis that Boord was an employee of Hart, not an independent contractor, and therefore immune from suit as a fellow employee of plaintiff under R.C. 4123.741. ¹ The court also found no error in the trial court's entry of summary judgment in favor of CEI, even though CEI did not move for such relief. In so holding, the court looked to CEI's answer, which prayed for judgment against plaintiff and for the dismissal of plaintiff's case. This was considered a sufficient basis for including CEI in the order for summary judgment. The court also upheld the judgment in favor of Hart, though without expressly addressing it, apparently on the basis that Hart was plaintiff's employer, and therefore immune under R.C. 4123.74. ²

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Aronson, Fineman & Davis Co., L.P.A., William J. Davis and Bernard Fineman, East Liverpool, for appellant.

Gallagher, Sharp, Fulton & Norman, George W. Stuhldreher and Jay C. Rice, Cleveland, for appellees Aaron, Boord and ABco.

McNeal, Schick, Archibald & Biro and Albert J. Biro, Cleveland, for appellees Hart and CEI.

CLIFFORD F. BROWN, Justice.

I

The first issue presented for review is whether summary judgment was properly entered in favor of Boord, Aaron, and ABco. Plaintiff-appellant argues that the evidence adduced below was such that reasonable minds could differ as to whether Boord was an employee of Hart (as was plaintiff) and therefore immune from suit as a fellow employee under R.C. 4123.741, or an independent contractor, and potentially liable. We agree.

The principal feature which distinguishes the relationship of employer and employee from that of employer and independent contractor is the right to control the means or manner of doing the work. If the employer has this right to control, the worker is his employee. However, if the employer is merely interested in the result and does not retain the right to direct the manner in which the work is completed, the relationship is that of employer and independent contractor. Councell v. Douglas (1955), 163 Ohio St. 292, 126 N.E.2d 597 , paragraph one of the syllabus.

Applying this principle to the instant facts, and viewing the evidence in the light most favorable to plaintiff, we find that reasonable minds could in fact differ as to the actual nature of the working relationship between Boord and Hart. Our review of the record reveals sufficient evidence to support a reasonable finding that Boord was an independent contractor rather than Hart's employee. Reasonable minds could infer from Boord's own deposition that he actually exercised direct control over the means and manner in which the work was performed. For example, he stated that no Hart employees were present on the job site; he himself distributed the equipment to the painting crew; he discussed the job with the crew before the work began; he assigned the men to particular towers; and he could hire and fire members of the crew. These facts could be construed as depicting Hart as interested only in the work result, with Boord controlling the means of achieving the result. As such, the relationship described could be that of employer and independent contractor.

Other factors applicable to the determination of the nature of the relationship support our finding that Boord could have been an independent contractor for Hart. The method of payment was by the job rather than by the time spent. Plaintiff presented evidence by affidavit to the effect that it was believed that Boord was acting as a subcontractor for Hart. These factors may be considered in determining whether one acting for another is an employee or an independent contractor. Gillum v. Indus. Comm. (1943), 141 Ohio St. 373, 381-382, 45 N.E.2d 234 .

Since we have concluded that reasonable minds could differ as to the nature of the relationship between Boord and Hart, it follows that summary judgment, rendered for Boord, Aaron, and ABco on the basis that Boord was an employee of Hart and therefore not liable as a matter of law, was improper. See Civ.R. 56(C). Our examination of the record discloses that the evidence presented by Boord, Aaron and ABco in support of their motion did not so clearly extinguish any triable issue of fact as to entitle them to judgment as a matter of law. Accordingly, we reverse the court of appeals' affirmance of summary judgment in favor of Boord, Aaron and ABco, and remand the cause for further proceedings as to these defendants.

II

The second question before this court is whether the trial court properly granted summary judgment in favor of CEI in the absence of a motion by CEI requesting such relief. We answer in the negative.

Although Civ.R. 56(C) does not expressly so state, we rule that a party who has not moved for summary judgment is not entitled to such an order, even where co-defendants have filed for and obtained this relief. We find support for this holding in the implications of the language of the rule, which states in part:

" * * * A summary judgment shall not be rendered unless it appears from * * * [the] evidence or stipulation and only therefrom, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made * * *." (Emphasis added.)

Where no motion has been filed, and necessarily no evidence attached thereto, no conclusion, favorable or adverse, is properly available upon which to base an order for summary judgment.

Furthermore, paragraph (C) provides specifically for service of the motion for the filing of opposing affidavits, and a hearing. Paragraphs (A) and (B) indicate that the motion is to be made by a party. Nowhere is it intimated that a court may sua sponte enter summary judgment. Support for this position may be found in the federal cases. See, e.g., Capital Films Corp. v. Charles Fries Productions, Inc. (C.A.5, 1980), 628 F.2d 387, 390-391; Denton v. Mr. Swiss of Missouri, Inc. (C.A.8, 1977), 564 F.2d 236, 242.

It is particularly inappropriate to grant summary judgment in favor of all defendants where one of them has not moved for such relief and where, as here, the potential liability of the non-moving defendant is entirely different in character from that of its co-defendants. The basis of CEI's possible liability in this case is its status as landowner, a position none of its co-defendants shared. In this setting, plaintiff had no opportunity to show that a genuine issue of fact existed regarding CEI's liability as a landowner as distinguished from that of the other defendants. To summarily grant judgment to CEI under these circumstances strikes this court as a highly questionable practice which we cannot encourage.

For the foregoing reasons, we hold that Civ.R. 56 does not authorize courts to enter summary judgment in favor of a party who has not moved therefor. Accordingly, we reverse the entry of summary judgment in favor of CEI, and remand the cause for further proceedings as to this defendant.

III

The final issue posed by this appeal is whether the evidence below demonstrated that Hart was entitled to judgment as a matter of law. We hold that summary judgment was properly entered in Hart's favor on the basis that Hart was a complying employer of plaintiff under R.C. 4123.74, and therefore immune from suit.

Plaintiff applied for, and received, workers' compensation benefits through Hart as a result of the injuries which are the subject of the instant suit. Plaintiff appears to concede that this fact renders Hart immune from suit as a complying employer under the Ohio Workers' Compensation Act. In any event, Hart has been administratively determined to be plaintiff's employer, and has demonstrated its compliance with the Act by providing plaintiff with workers' compensation benefits. The inevitable result is that Hart is immune from the instant suit, which impermissibly seeks recovery for plaintiff's injuries allegedly due to Hart's negligence.

This court's recent holding in Hirschbach v. Cincinnati Gas & Elec. Co. (1983), 6 Ohio St.3d 206, 452 N.E.2d 326, is distinguishable from the instant cause. There we held that "[o]ne who engages the services of an independent contractor, and who actually participates in the job operation performed by such contractor and thereby fails to eliminate a hazard which he, in the exercise of ordinary care, could have eliminated, can be held responsible for the injury or death of an employee of the independent contractor." (Emphasis added.) Id. at syllabus. No actual participation by Hart in the work performed by Boord is evident here. This is the "controlling and dispositive...