Eicher v. U.S. Steel Corp.

• Decision Date: 02 September 1987
• Docket Number: No. 86-1793,86-1793
• Parties: EICHER et al., Appellants, v. UNITED STATES STEEL CORPORATION, Appellee.
• Court: Ohio Supreme Court

Page 248

32 Ohio St.3d 248

512 N.E.2d 1165

EICHER et al., Appellants, v. UNITED STATES STEEL CORPORATION, Appellee.

No. 86-1793.

Supreme Court of Ohio.

Sept. 2, 1987.

Syllabus by the Court

The duty to frequenters of places of employment, set forth in R.C. 4101.11, does not extend to hazards which are inherently and necessarily present because of the nature of the work performed, where the frequenter is the employee of an independent contractor.

Thomas J. Eicher ("Eicher") was an employee of Stevens Painton Company, an independent contractor which is not a party in this case. Stevens Painton had contracted with United States Steel Corporation ("U.S. Steel"), appellee, to perform construction at appellee's Lorain, Ohio steel plant. Eicher was a heavy equipment operator on the Lorain construction project where he had worked for approximately two years.

On July 1, 1982, Eicher was assigned to operate a backhoe. He went to the Basic Oxygen Process shop ("BOP shop") to retrieve the backhoe. After leaving this building and while driving the backhoe in an open area, Eicher was stopped by the approach of a factory train pulling rail cars apparently loaded with newly poured molten metal. At the same time, a truck stopped behind Eicher. Eicher testified that he was then engulfed by smoke. He stated that he smelled ammonia and sulphur-like fumes.

He also testified that as the morning progressed, he again encountered the above odors. Subsequently that morning, Eicher felt ill and short of breath. He was taken to the hospital where he was told that he either had suffered, or was about to suffer, a heart attack.

On June 27, 1984, Eicher and his wife, appellants herein, filed suit against U.S. Steel alleging that Eicher had suffered a heart attack as a result of U.S. Steel's negligence and failure to provide a safe work place. At the close of appellants' evidence, the trial court granted appellee's motion for a directed verdict. On appeal, the court of appeals affirmed.

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

Sindell, Lowe & Guidubaldi Co., L.P.A., and Steven A. Sindell, Cleveland, for appellants.

Louise Q. Symons, Pittsburgh, Pa., Burke, Haber & Berick and Anthony J. DiVenere, Cleveland, for appellee.

HOLMES, Justice.

The courts below found that appellants failed to produce sufficient evidence to meet the legal requirements for their cause of action. For the reasons set forth herein, we affirm such determinations.

Initially, it is pointed out that appellants offered no verifiable evidence that Eicher was ever exposed to any harmful chemical or gas. All of the events in question occurred outdoors in open spaces. No evidence was adduced as to the chemical composition of the fumes to which appellants assert Eicher was exposed. Appellants did not show that on the date in question such fumes were different from those on other work days, or that any unusual processes were performed by U.S. Steel. Also, none of Eicher's co-workers were harmed though several of them were with him during the times of alleged exposure. Consequently, there was no verifiable evidence to support appellants' allegations that a hazardous work condition in fact existed.

Appellants would imply the existence of a hazard as well as U.S. Steel's knowledge of its existence from the fact that U.S. Steel's employees were issued face masks. In that U.S. Steel did not supply such a mask to Eicher, it is contended that U.S. Steel failed to perform the duty owed to Eicher, as the employee of an independent contractor. This duty, it is asserted, arises in two ways, i.e., under Ohio common law and pursuant to R.C. 4101.11.

The statute in question, R.C. 4101.11, is commonly referred to as the "frequenter statute," and provides as follows:

"Every employer shall furnish employment which is safe for the employees engaged therein, shall furnish a place of employment which shall be safe for the employees therein and for frequenters thereof, shall furnish and use safety devices and safeguards, shall adopt and use methods and processes, follow and obey orders, and prescribe hours of labor reasonably adequate to render such employment and places of employment safe, and shall do every other thing reasonably necessary to protect the life, health, safety, and welfare of such employees and frequenters." (Emphasis added.)

The duty owed to frequenters, i.e., including employees of other companies, is no more than a codification of the common-law duty owed by an owner or occupier of premises to invitees, requiring that the premises be kept in a reasonably safe condition, and that warning be given of dangers of which he has knowledge. See, e.g., Westwood v. Thrifty Boy (1972), 29 Ohio St.2d 84, 58 O.O.2d 154, 278 N.E.2d 673, paragraph one of the syllabus.

However, the duty to frequenters of places of employment, as set forth in R.C. 4101.11, does not extend to hazards which are inherently and necessarily present because of the nature of the work performed, where the frequenter is the employee of an independent contractor. As stated in Wellman v. East Ohio Gas Co. (1953), 160 Ohio St. 103, 51 O.O. 27, 113 N.E.2d 629: "Where 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 an independent contractor." (Emphasis added.) Id. at paragraph one of the syllabus. Such an invitee may recover when the injury results " * * * by reason of the abnormally dangerous condition of the premises, only if the principal employer has, and the servant has not, actual or constructive notice of the existence of such condition." Davis v. Charles Shutrump & Sons Co. (1942), 140 Ohio St. 89, 23 O.O. 299, 42 N.E.2d 663, paragraph one of the syllabus. See, also, Schwarz v. General Electric Realty Corp. (1955), 163 Ohio St. 354, 358, 56 O.O. 319, 320, 126 N.E.2d 906, 909.

It is appellants' contention that a greater duty devolves upon U.S. Steel such that, since U.S. Steel has sole control over the safety measures necessary to eliminate the hazard, it owed Eicher a greater duty than mere notification of a hazard's existence. As previously mentioned, appellants...