472 N.E.2d 335 (Ohio 1984), 83-1662, Marshall v. Aaron

Docket Nº:83-1662.
Citation:472 N.E.2d 335, 15 Ohio St.3d 48
Opinion Judge:CLIFFORD F. BROWN, J.
Party Name:MARSHALL, Appellant, v. AARON et al., Appellees.
Attorney: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, fo...
Judge Panel:FRANK D. CELEBREZZE, C.J., and WILLIAM B. BROWN, SWEENEY and JAMES P. CELEBREZZE, JJ., concur. LOCHER, Justice, concurring in part and dissenting in part. HOLMES, Justice, concurring in part and dissenting in part.
Case Date:December 28, 1984
Court:Supreme Court of Ohio
 
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Page 335

472 N.E.2d 335 (Ohio 1984)

15 Ohio St.3d 48

MARSHALL, Appellant,

v.

AARON et al., Appellees.

No. 83-1662.

Supreme Court of Ohio.

December 28, 1984

Page 336

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.

Page 337

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 [15 Ohio St.3d 49] 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 [56 O.O. 262], 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

Page 338

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 [15 Ohio St.3d 50] 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...

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