Curless v. Lathrop Co.

• Citation: 65 Ohio App.3d 377,583 N.E.2d 1367
• Decision Date: 24 November 1989
• Docket Number: No. OT-89-9,OT-89-9
• Parties: CURLESS, Exrx., Appellant, v. LATHROP COMPANY; Toledo Edison Company et al., Appellees. *
• Court: United States Court of Appeals (Ohio)

Page 377

65 Ohio App.3d 377

583 N.E.2d 1367

CURLESS, Exrx., Appellant, v. LATHROP COMPANY; Toledo Edison Company et al., Appellees. ^*

No. OT-89-9.

Court of Appeals of Ohio, Sixth District, Ottawa County.

Decided Nov. 24, 1989.

Syllabus by the Court

1. Reference to safety regulations in a contract between a landowner and an independent contractor does not impose a duty of care upon the landowner for the safety of the independent contractor's employees absent evidence that the owner actually participated in the contractor's job operation. Walker v. Mid-States Terminal, Inc. (1984), 17 Ohio App.3d 19, 17 OBR 71, 477 N.E.2d 1160, distinguished.

2. The employee of an independent contractor or that employee's representative, is not included in the group of persons who may base a negligence claim against a landowner, who has employed such independent contractor, on the 2 Restatement of the Law 2d, Torts (1965), Section 416 or 424.

William H. Bartle, Sandusky, for appellant.

John J. McHugh, Toledo, for appellees Toledo Edison Co. and Cleveland Elec. Illuminating Co. GLASSER, Judge.

This matter is before the court on appeal from a judgment of the Ottawa County Court of Common Pleas.

The facts giving rise to this appeal are as follows. On November 6, 1984, James Curless was employed as a laborer by the Lathrop Company. Lathrop had been engaged by defendants-appellees, Toledo Edison and Cleveland Electric Illuminating Company, to perform certain job operations at the Davis-Besse Nuclear Power Plant in Oak Harbor, Ohio. Among the jobs Lathrop contracted to perform was a reinforcement of cement columns used to support the cooling tower.

In order to reinforce the structure, each column was encircled with a steel form up to a height of approximately fifteen feet. A scaffold was constructed adjacent to the column and two Lathrop employees were assigned to work on the platform. The employees were assigned the task of guiding a cement bucket, hoisted by a crane, to a position over the circular form so that cement could be dropped into the form. The cement was then mixed with a vibrator.

After each column had been reinforced up to fifteen feet, the circular forms and scaffolding were raised an additional fifteen feet, to the top of the column. The cement pouring and vibrating processes were then repeated at the new height.

On November 6, 1984, Curless was working on a platform guiding the cement bucket into its proper position. Fellow Lathrop employee, Marvin Ohm, was working with Curless on the platform, operating the vibrator. The men had finished pouring cement for one column and were ready to move to another column. As he began to descend, Curless fell from the scaffold and was killed.

Plaintiff-appellant, Joann Curless, individually and as executrix of the estate of James Curless, filed a complaint August 16, 1985 naming Lathrop, the Ohio Edison Company, and appellees as defendants. Ohio Edison was dismissed without prejudice by a judgment entry dated August 26, 1985. Appellant filed an amended complaint on May 9, 1988 in which she alleged, inter alia, that appellees failed to provide Curless with a reasonably safe place to work by failing to ensure that the scaffolding was properly erected and maintained. Appellant's complaint sought $3,000,000 in compensatory and $1,000,000 in punitive damages.

On October 17, 1988, appellees moved for summary judgment. In a judgment entry filed February 22, 1989, the motion for summary judgment was granted. The trial court further ordered, pursuant to Civ.R. 54(B), that there was no just reason for delay. It is from the entry of summary judgment in favor of Toledo Edison and Cleveland Electric Illuminating that appellant has appealed, setting forth the following six assignments of error:

"A. The Trial Court Erred In Granting Defendants, Toledo Edison And Cleveland Electric Illuminating Company's, Motions For Summary Judgment Because:

"(1) Questions Of Fact Exist As To Whether Toledo Edison Retained Sufficient Control Over Safety At the Worksite Where James Curless Was Killed To Make It Responsible For State And Federal Safety Regulation Implementation.

"(2) Questions Of Fact Exist As To Whether Toledo Edison (Employer Of Independent Contractor) Voluntarily Assumed Responsibility For Safety Of The Worksite Where James Curless Was Killed, Making It Responsible For State And Federal Safety Regulation Implementation.

"(3) Questions Of Fact Exist As To Whether Toledo Edison Actively Participated In Regulating The Safety Of The Worksite At Which James Curless Was Killed So As To Make It Responsible For State and Federal Safety Regulation Implementation.

"(4) Questions Of Fact Exist As To Whether Toledo Edison Was Negligent In Voluntarily Providing Gloves To Employees Of The Independent Contractor Which Were Unsuitable For Climbing Scaffolding.

"(5) These Defendants, As Employers Of An Independent Contractor Who Was Required To Erect Scaffolding, Had a Non-Delegable Duty With Respect To The Proper And Safe Erection Of Said Scaffolding Pursuant To O.R.C. § 3791.06, 4101.11 and 4101.12. (Adoption Of Restatement Of Torts § 424).

"(6) These Defendants, As Employers Of An Independent Contractor, Recognized That The Work To Be Performed By The Independent Contractor Was Likely To Create A Peculiar Risk Of Physical Harm To Others Unless Special Precautions Were Taken (State And Federal Regulations Followed). Under These Circumstances, The Employer Of The Independent Contractor Should Be Liable To Those Injured As A Result Of The Failure Of The Independent Contractor To Exercise Reasonable Care. (Adoption Of Restatement Of Torts § 416)."

Our analysis of appellant's first three assignments of error indicates that the issues raised in each argument are interrelated; therefore, we have evaluated these assignments of error simultaneously. In her first assignment of error, appellant asserts that questions of fact exist as to whether appellees retained sufficient control over safety at the worksite so as to create responsibility for state and federal safety regulation implementation. Second, appellant argues that questions of fact exist regarding appellees' "voluntary assumption" of safety responsibilities, thereby creating an obligation to enforce safety regulations. In her third assignment of error, appellant suggests that questions of fact exist regarding whether appellees "actively participated" in worksite safety so as to require enforcement and compliance with regulations. Presenting her argument in three slightly different formats, appellant repeatedly asserts that, on the basis of the evidence presented, a jury could find that appellees retained sufficient control over the place of injury so as to impose liability for their alleged failure to exercise reasonable care.

A brief synopsis of relevant Ohio law is presented in order to understand the premise of appellant's underlying argument. In Wellman v. East Ohio Gas Co. (1953), 160 Ohio St. 103, 51 O.O. 27, 113 N.E.2d 629, the Supreme Court of Ohio set forth rules defining the scope of liability in similar circumstances. These rules have been followed to the present day. In Wellman, the independent contractor was engaged by the East Ohio Gas Company to lay pipes. The plaintiff, an employee of the independent contractor, was injured when a pipefitter, also employed by the independent contractor, attempted to remove a cap from a pressure-filled pipe. The cap blew off, striking plaintiff and fracturing one of his legs. Under these circumstances, the Wellman court stated, it was the independent contractor's " * * * duty to warn and protect the plaintiff, and no such duty devolved on defendant." Id. [583 N.E.2d 1371] at 107, 51 O.O. at 29, 113 N.E.2d at 632. In summary, the court held:

"1. Where an independent contractor undertakes to do work for another in the very doing of which there are elements of real or potential danger and one of such contractor's employees is injured as an incident to the performance of the work, no liability for such injury ordinarily attaches to the one who engaged the services of the independent contractor.

"2. One who engages an independent contractor to do work for him ordinarily owes no duty of protection to the employees of such contractor, in connection with the execution of the work, who proceeds therewith knowing and appreciating that there is a condition of danger surrounding its performance.

"3. To establish 'actionable negligence' three essential elements must be shown, namely, a duty or obligation on the part of the person charged with such negligence to protect another from injury, a failure to discharge that duty, and an injury to such other proximately resulting from that failure." Id. at paragraphs one, two and three of the syllabus.

In Hirschbach v. Cincinnati Gas & Elec. Co. (1983), 6 Ohio St.3d 206, 6 OBR 259, 452 N.E.2d 326, the court held that the Wellman line of cases was not applicable under certain factual situations.

"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." Id. at syllabus.

In Hirschbach, the independent contractor's employee was killed when he fell from a high tension electric tower owned by defendant, Cincinnati Gas & Electric Company ("CG & E"). Prior to the accident, the decedent was one of several employees who discussed the method of job operation with an inspector employed by CG & E. Despite safety concerns voiced by the independent contractor's employees, the inspector denied their request to modify the method of job operation. In view of the circumstances, the Hirschbach court stated that " * * * a jury could reasonably conclude that CG & E had sole control over...