Cafferkey v. Turner Const. Co.

• Decision Date: 22 January 1986
• Docket Number: No. 84-1600,84-1600
• Citation: 488 N.E.2d 189,21 OBR 416,21 Ohio St.3d 110
• Parties: , 21 O.B.R. 416 CAFFERKEY, Admx., et al., Appellants, v. TURNER CONSTRUCTION COMPANY, Appellee, et al.
• Court: Ohio Supreme Court

Page 110

21 Ohio St.3d 110

488 N.E.2d 189, 21 O.B.R. 416

CAFFERKEY, Admx., et al., Appellants, v.TURNER CONSTRUCTION COMPANY, Appellee, et al.

No. 84-1600.

Supreme Court of Ohio.

Jan. 22, 1986.

Syllabus by the Court

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 subcontractor who are injured while engaged in inherently dangerous work.

Plaintiffs-appellants, Ann Cafferkey, Administratrix of the Estate of Michael Cafferkey, deceased, and Myrtle Davis, Executrix of the Estate of Clark J. Davis, Sr., deceased, appeal from the order of the court of appeals affirming the granting of summary judgment in favor of defendant-appellee, Turner Construction Company("Turner").

In 1979, Turner was engaged by Mutual Holding Company("Mutual") as the general contractor for the Medical Mutual of Cleveland Office Tower & Parking Garage.On November 13, 1980, Turner contracted with defendantMillgard Corporation("Millgard"), an independent subcontractor, to drill and install the caisson foundations necessary to support the finished structure.

Millgard began the caisson installation during the early part of 1981.Millgard planned to install each of the eighteen caissons by drilling a hole approximately two hundred feet deep into which a series of three cylindrical liners, or casings, would then be inserted.Each hole was to be drilled by an auger secured by a "kelly bar" to a crane.When a hole was finished, the casings would be lowered by a crane and turned into position with a device called a "twister bar."Reinforcing steel would next be set into the hole and, finally, after approval by Mutual's structural engineer, the hole would be filled with concrete.

On May 20, 1981, Millgard had drilled caisson hole A-3 and inserted three casings into it.On the morning of May 21, 1981, Millgard was preparing to pour the concrete when the structural engineer determined that the lowest casing was not deep enough into the shale to meet design specifications.Millgard investigated the caisson hole, during which time Millgard detected methane gas and made certain efforts to dispel the gas.Mutual's structural engineer told Millgard that, to correct the caisson depth problem, Millgard could either add reinforcing steel to the lower thirty to forty feet of the caisson or attempt to force the casing down another two feet.Millgard's project superintendent decided to remedy the problem by attempting to drive the casing deeper into the ground.This effort required resecuring the twister bar to the casing and then using the twister and kelly bars to force the casing down.During the attempt, which proved unsuccessful, the casing was bent, causing the twister bar to become jammed in the caisson hole.

To release the twister bar, Millgard's project superintendent decided to cut off the portion of the casing which had entrapped the twister bar.Two Millgard employees, Clark Davis and Michael Cafferkey, went down into the caisson hole with a cutting torch to burn off the piece of casing that had caused the twister bar to become jammed.While in the hole, one of the employees struck his flint to light the torch and an explosion of methane gas occurred.Both men were severely burned.They were hospitalized and died some days later as a result of the injuries they received in the explosion.

Neil J. Carothers III, Turner's assistant superintendent, was in the vicinity of hole A-3 as efforts were being made to resecure the twister bar to the casing.He was not consulted about the decisions to attempt to drive the casing deeper into the ground or to send men down into the hole after the twister bar became jammed.According to Millgard's project superintendent, Carothers "had no say to anything."

Separate tort actions filed by plaintiffs against both Turner and Millgard were later consolidated.After lengthy discovery, Millgard and Turner filed separate motions for summary judgment.Initially, the trial court granted Millgard's motion, and overruled Turner's motion.However, on reconsideration, the trial court entered summary judgment in Turner's favor.The trial court ruled as a matter of law that at the time of the explosion Turner owed no duty of care to Davis and Cafferkey because both men were working for Millgard when they were injured; moreover, the task to which they were assigned was an inherently dangerous activity.

On appeal, the court of appeals reversed the summary judgment in Millgard's favor.However, summary judgment in Turner's favor was affirmed, based on Hirschbach v. Cincinnati Gas & Elec. Co.(1983), 6 Ohio St.3d 206, 452 N.E.2d 326.

The cause is now before this court pursuant to the allowance of a motion to certify the record, limited to review of the summary judgment against Turner, the general contractor.

Miller, Stillman & Bartel and Willard E. Bartel, Cleveland, for appellant Cafferkey.

Wuliger, Fadel & Beyer, William Fadel, William D. Beyer and Frances M. Gote, Cleveland, for appellant Davis.

Thompson, Hine & Flory, William H. Wallace and Douglas N. Barr, Cleveland, for appellee.

WRIGHT, Justice.

The issue presented is whether a general contractor merely by virtue of its supervisory capacity over the worksite owes a duty of care to the employees of a subcontractor engaged in inherently dangerous work.

In Hirschbach v. Cincinnati Gas & Elec. Co.(1983), 6 Ohio St.3d 206, 452 N.E.2d 326, the syllabus holds:

"One 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.)

This court in Hirschbach reversed a summary judgment for the defendant who contracted with the injured man's employer to repair the defendant's electrical tower.The contractor's employee fell when the tower broke under tension from the contractor's winch line.The Hirschbach majority premised the defendant's liability on his denial of the contractor's request to position the winch line outside the defendant's property.

Three members of the court dissented in Hirschbach, citing decisions that bar recovery when the injury results from risks inherent in the contractor's assigned task.Wellman v. East Ohio Gas Co.(1953), 160 Ohio St. 103, 113 N.E.2d 629[51 O.O. 27];Schwarz v. General Electric Realty Corp.(1955), 163 Ohio St. 354, 126 N.E.2d 906[56 O.O. 319];Evans v. Whirlpool Corp.(1967), 10 Ohio St.2d 240, 227 N.E.2d 208[39 O.O.2d 372];andBriere v. Lathrop Co.(1970), 22 Ohio St. 2d 166, 258 N.E.2d 597[51 O.O.2d 232].The majority distinguished Wellman because in Hirschbachthe defendant had "actually participated in the job operation performed by the crew of the independent contractor."Id., 6 Ohio St.3d at 208, 452 N.E.2d 326.

In the present case, Turner relies on the same "inherent risk" decisions, noting that Hirschbach does not overrule these decisions.Hirschbach authorizes liability if the defendant"actually participate[s] in the job operation" and negligently fails to eliminate a risk inherent in the contractor's job.The undisputed facts establish that Turner did not actively participate in any action or decision that led to the fatal injuries.Turner may have known about some of Millgard's activities, but that knowledge does not constitute "actual participation" in those activities within the Hirschbach rule.Unlike the landowner in Hirschbach, Turner neither gave nor denied permission for the critical acts that led to the decedent's injuries.

As already noted, Millgard alone made the decisions to attempt to drive the lowest casing in hole A-3 deeper into the ground and to send the men down into the hole after the twister bar became jammed.Turner personnel were not consulted about either decision.Caisson installation is known to be dangerous work and Millgard was aware that highly explosive methane gas was present beneath the worksite.

Appellants assert that certain provisions of the contract between Turner and Millgard as well as certain portions of Turner's safety manual reveal Turner's retention of control over safety procedures at the project site.Turner had an obvious interest in safety and it insisted that its own employees as well as the employees of subcontractors carry on their work activities in as safe a manner as possible.Nevertheless, this concern for safety, which was evidenced in a variety of ways, does not constitute the kind of active participation in Millgard's work that is legally required to create a duty of care extending from Turner to Millgard's employees.

The Turner "Safety Program" is a one-page list of general safety requirements directed toward all subcontractors.Turner advised everyone concerned that hard hats must be worn, appropriate eyewear and footwear must be available for use, and the like.This safety program was nothing more than a handy, brief reference sheet to remind subcontractors about the fundamental "do's and don'ts" at the construction site.

The contract language pertaining to job safety is nothing more than standard "boilerplate" terminology common to virtually all construction contracts.Turner retained the ability to monitor and coordinate the activities of all subcontractors in order to ensure compliance with the architect's specifications.The various contractual rights reserved by Turner did not empower Turner to control the means or manner of Millgard's performance.Millgard, the acknowledged expert in caisson installation, assumed the responsibility to construct and install caissons in a sound, efficient, and safe manner.

The details of Millgard's performance were directed and carried out solely by Millgard's employees.Turner did not...