Bond v. Howard Corp.

• Decision Date: 28 June 1995
• Docket Number: No. 93-2569,93-2569
• Citation: 650 N.E.2d 416,72 Ohio St.3d 332
• Parties: BOND et al., Appellants, v. HOWARD CORPORATION et al., Appellees.
• Court: Ohio Supreme Court

Page 332

72 Ohio St.3d 332

650 N.E.2d 416

BOND et al., Appellants, v. HOWARD CORPORATION et al., Appellees.

No. 93-2569.

Supreme Court of Ohio.

Submitted April 4, 1995.

Decided June 28, 1995.

SYLLABUS BY THE COURT

For purposes of establishing liability to the injured employee of an independent subcontractor, "actively participated" means that the general contractor directed the activity which resulted in the injury and/or gave or denied permission for the critical acts that led to the employee's injury, rather than merely exercising a general supervisory role over the project. (Cafferkey v. Turner Constr. Co. [1986], 21 Ohio St.3d 110, 21 OBR 416, 488 N.E.2d 189, construed and applied.)

In 1990, appellee Howard Corporation ("Howard") entered into a contract with General Cinema Corporation ("General Cinema") to construct an eight-screen movie theater in Elyria, Ohio. Howard was hired as the general contractor for the project. To assist with the construction of the project, Howard contracted with appellee Valentine Construction, Inc. ("Valentine"), an independent subcontractor. Valentine was hired by Howard to complete masonry work for the construction project. Appellant William G. Bond was an employee of Valentine.

In September 1990, Bond, while working at the construction site, fell through an unguarded opening located on the second floor of the project. On the day of the accident, Bond was constructing a wall. The wall was adjacent to the opening where Bond fell. The opening was for a stairwell, but the stairs had not yet been installed. Materials for the construction of the wall had been placed by another Valentine employee near the unguarded opening. Bond went to the area where the material was located to obtain block for the wall. Bond had his back to the opening and, after picking up a block, he stepped backwards and fell through the opening. Bond was severely injured as a result of the fall.

Bond was aware that the opening existed and that it was unguarded. Howard did not supervise or participate in the actual construction of the wall.

Following the accident, Howard closed off the opening with a guardrail. Occupational Safety and Health Administration ("OSHA") regulations and certain Ohio guidelines require that floor openings, such as the opening in question, be guarded.

Bond and his wife, also an appellant herein, commenced suit in the Court of Common Pleas of Lorain County against Howard and Valentine. In their complaint, appellants alleged that Howard was "negligent in the performance of its duties and responsibilities as general contractor, and in providing William Bond with a safe place in which to work." Appellants also brought an intentional tort claim against Valentine.

Howard and Valentine filed separate motions for summary judgment. Howard contended that it did not owe a duty of care to Valentine employees. Valentine, in its motion for summary judgment, asserted that appellants failed to establish the elements of "intent" for the purpose of proving the existence of an intentional tort.

The trial court granted Howard's and Valentine's motions for summary judgment. On appeal, the court of appeals affirmed the judgment of the trial court.

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

Jeffries, Kube, Forrest & Monteleone Co., L.P.A., Michael R. Kube and William J. Shramek, Cleveland, for appellants.

Reminger & Reminger Co., L.P.A., and Nicholas D. Satullo, Cleveland, for appellee Howard Corp.

Harry A. Tipping Co., L.P.A., Harry A. Tipping and John W. Clark, Akron, for appellee Valentine Const. Co.

DOUGLAS, Justice.

This appeal presents two issues for our consideration. The first issue is whether the general contractor Howard owed a duty of care to Bond, an employee of the subcontractor Valentine. The second issue is whether an intentional tort was committed by Valentine against Bond.

I Bond v. Howard

Appellants contend that the court of appeals erred in holding that the trial court properly granted summary judgment in favor of Howard. Appellants assert that ample evidence exists to find that Howard retained sufficient control over the construction site and that the general contractor "actually participated" in the subcontractor's work. In this regard, appellants claim that Howard owed a duty of care to Valentine employees.

In support of its position that summary judgment was improperly granted in favor of Howard, appellants rely on portions of the contract between General Cinema and Howard, and portions of the contract between Howard and Valentine. Specifically, appellants assert that the contract between Howard and General Cinema required Howard to comply with and enforce any applicable safety laws, rules or regulations. Appellants further urge that pursuant to the contract between Howard and its subcontractors the subcontractors were required to obtain permission and special instructions from Howard prior to beginning work in any area on the job site, and that Howard had a right to remove any equipment and personnel that created an unsafe condition at the site. Appellants also point to certain actions undertaken by Howard. Appellants contend that Howard made daily inspections of the construction site and, on one occasion, had given "directives" to Bond. Additionally, appellants emphasize that, on another occasion, the superintendent required Valentine to repair a scaffolding that had been improperly erected by Valentine. Appellants claim further that Howard acknowledged that it was responsible for providing "perimeter guarding and floor opening fall protection and its superintendent was in the process of obtaining approval to expend funds for such when Bond fell."

In construing the evidence most strongly in favor of appellants, we must determine if the evidence supports a finding that Howard owed a duty of care to Bond to protect Bond from the injuries he sustained when he fell from the second floor of the construction project. In determining whether such a duty exists, we believe it is instructive to set forth and examine prior relevant decisions from this court where we have discussed the duties and responsibilities when one engages an independent contractor to perform an inherently dangerous task.

In Wellman v. E. Ohio Gas Co. (1953), 160 Ohio St. 103, 51 O.O. 27, 113 N.E.2d 629, paragraph one of the syllabus, this court held that "[w]here an independent contractor undertakes to do work for another in the very doing of which there are elements of * * * danger * * *, no liability * * * ordinarily attaches to the one who engaged the services of the independent contractor." (Emphasis added.)

The plaintiff in Wellman had been employed as a welder's helper by an independent contractor. The independent contractor had been hired by the defendant gas company to lay a gas line. The gas company had inspectors at the job site to ensure that the work was completed to its specifications. An employee of the independent contractor improperly removed a cap from the gas pipe. As a result, the cap struck plaintiff, fracturing one of his legs. In assessing whether the defendant owed a duty to the plaintiff, this court emphasized that the independent contractor was aware of the danger involved and, therefore, "it was [the independent contractor's] duty to warn and protect the plaintiff, and no such duty devolved on defendant." Id. at 107, 51 O.O. at 29, 113 N.E.2d at 632.

In Hirschbach v. Cincinnati Gas & Elec. Co. (1983), 6 Ohio St.3d 206, 6 OBR 259, 452 N.E.2d 326, syllabus, we carved out an exception to the general rule set forth in Wellman and 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.)

In Hirschbach, Cincinnati Gas & Electric Company ("CG & E") hired an independent contractor to replace electrical wire conductors. Hirschbach, an employee of the independent contractor, was killed when the tower arm collapsed. The collapse was caused by the tractor winch, which was positioned too close to the tower. Prior to the fatal fall, Hirschbach and several fellow employees sought permission from CG & E's inspector to position the winch tractor at a safe distance from the base of the tower. The inspector denied their request. Based on these facts, we reversed a summary judgment entered in favor of CG & E and concluded that:

" * * * [A] jury could reasonably conclude that CG & E had sole control over the safety features necessary to eliminate the hazard. By denying the [independent contractor's] crew its request to reposition the winch tractor: (1) CG & E refused to eliminate the hazard, (2) CG & E interfered with the mode of the job operation, and (3) CG & E actually participated in the job operation by dictating the manner and mode in which the winching phase of the job was to be performed." (Emphasis added and footnote omitted.) Id. at 208, 6 OBR at 261, 452 N.E.2d at 329.

As can be gleaned, the distinguishing factor between Wellman and Hirschbach is that in Hirschbach, the general contractor, who had engaged the independent contractor, actually participated in the specific job operation. In comparison, the party who hired the independent contractor in Wellman had inspectors at the job site, but only to ensure that the job was completed according to specifications.

In Cafferkey v. Turner Constr. Co. (1986), 21 Ohio St.3d 110, 21 OBR 416, 488 N.E.2d 189, we further refined our holdings in Wellman and Hirschbach. Therein, we held that "[a] general contractor who has not actively participated in the subcontractor's work, does not, merely by virtue of its supervisory capacity, owe a duty of care to employees of the...