Hirschbach v. Cincinnati Gas & Elec. Co.

• Decision Date: 10 August 1983
• Docket Number: No. 82-1362,82-1362
• Citation: 6 Ohio St.3d 206,6 OBR 259,452 N.E.2d 326
• Court: Ohio Supreme Court
• Parties: , 6 O.B.R. 259 HIRSCHBACH, Admx., Appellant, v. CINCINNATI GAS & ELECTRIC COMPANY, Appellee, et al.

Page 206

6 Ohio St.3d 206

452 N.E.2d 326, 6 O.B.R. 259

HIRSCHBACH, Admx., Appellant, v. CINCINNATI GAS & ELECTRIC COMPANY, Appellee, et al.

No. 82-1362.

Supreme Court of Ohio.

Aug. 10, 1983.

Syllabus by the Court

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.

Plaintiff-appellant, Carol Ann Hirschbach ("appellant"), is the widow of Michael A. Hirschbach ("Hirschbach") and administratrix of his estate. She brought this wrongful death action in the Court of Common Pleas of Hamilton County, seeking damages for the death of her husband who was killed on June 3, 1975, when he fell from a high tension electric tower owned by defendant-appellee, Cincinnati Gas & Electric Co. ("CG & E"). CG & E filed a motion for summary judgment against appellant, which was granted. Upon appeal, the trial court's judgment was affirmed. The basis of the appellate court's decision was that CG & E, as a matter of law, owed no duty to the decedent under the circumstances of this case, and that as a matter of law, the decedent assumed the risk of the job operation and hence was barred from recovery.

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

Grieser, Schafer, Blumenstiel & Slane Co., L.P.A., C. Richard Grieser and J.B. Blumenstiel, Columbus, for appellant.

Taft, Stettinius & Hollister and Gerald J. Rapien, Cincinnati, for appellee.

JAMES P. CELEBREZZE, Justice.

Hirschbach was an electrical lineman working for the Wagner-Smith Company, an independent contractor, which had been retained by CG & E to build and renew electric transmission and distribution lines in CG & E's service area. The work included replacing three copper wire conductors with aluminum wire conductors. The Wagner-Smith crew had been working on the job site for approximately a month, had replaced two of the conductors successfully and was in the process of replacing the third and final conductor on the day of the fatal accident. The decedent and a fellow lineman climbed up to the lower arm of the end tower, to disengage the end of the conductor from its insulator, so that the old wire could be replaced. To release the old wire from its insulator and lower it to the ground, a winch line cable attached to a caterpillar tractor on the ground was utilized.

After the winch line had been raised and attached to the old wire, Hirschbach walked out on the tower arm to release the insulator. Before he could return to the tower cage, the tower arm collapsed, causing Hirschbach to fall some ninety feet to his death. The tower arm collapsed because of excessive downward force exerted by the Wagner-Smith winch line. This excessive force was caused by the tractor winch having been positioned too close to the base of the tower. In order to avoid exerting excessive downward force on the tower arm during the winching operation, it is customary to position the winch tractor away from the base of the tower at a distance of at least three to four times the height of the tower arm. The tower was approximately one hundred feet high. At the time of the accident, the winch tractor was located not more than eighty to ninety feet away from the base of the tower, rather than the preferred distance of three hundred to four hundred feet.

Prior to this accident, Hirschbach and several of his fellow linemen discussed the positioning of the winch tractor with Edward A. Moore, the inspector in charge of the job site for CG & E. They told Moore that they thought the winch tractor was too close to the base of the tower and sought permission from him to position the winch tractor a safe distance away from the base of the tower. In order to do so, a chain link fence would have had to been removed and the winch tractor would have had to been placed on park land adjacent to the CG & E site. Moore denied their request and told them the winch tractor could not be placed in the park because CG & E did not want to be responsible for any resulting damages.

The first issue presented here is whether 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.

Appellee contends that under the principle ¹ enunciated in Wellman v. East Ohio Gas Co. (1953), 160 Ohio St. 103 , 113 N.E.2d 629, it cannot be held responsible for decedent's death.

Appellant contends that the Wellman line of cases is not applicable to the factual situation in this case. The controlling and dispositive factual distinction is that in this case, the appellee actually participated in the job operation performed by the crew of the independent contractor. Schwarz v. General Electric Realty Corp. (1955), 163 Ohio St. 354, 359 , 126 N.E.2d 906. For the reasons set forth below, we agree with appellant's contention.

There is no question that CG & E had custody and control over the premises where the work was being performed. Hence the Ohio "frequenter" statutes are applicable here. R.C. 4101.01 et seq. " * * * Under these statutes, * * * [CG & E] owed decedent a duty to provide him with a place of employment which was as safe and free from danger as the nature of the employment would reasonably permit." Parsons v. Blount Bros. Construction Co. (C.A.6, 1960), 281 F.2d 414, 417.

There is no question that CG & E, through Moore, knew that the winch tractor had been placed too close to the base of the tower. CG & E also knew that the Wagner-Smith crew attempted to remedy the situation by seeking permission from Moore to reposition the winch tractor.

Hence, under the circumstances of this case, a jury could reasonably conclude that CG & E had sole control over the safety features necessary to eliminate the hazard. By denying the Wagner-Smith crew its request to reposition the winch tractor: (1) CG & E refused to eliminate the hazard, ² (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.

Based upon the foregoing, it is our opinion that this case presents a jury question as to whether CG & E is responsible for decedent's death by allegedly failing to eliminate a hazard which it, in the exercise of ordinary care, could have eliminated.

The second issue presented here is whether the defense of assumption of risk is a bar to recovery in this action.

Appellee contends that appellant is barred from any recovery in this action because the decedent, as a matter of law, assumed the risk of his injury and death. As explained below, the defense of assumption of risk is no longer a bar to recovery in negligence actions in Ohio.

Contributory negligence had long been a bar to recovery for an injured party under the common law of Ohio. The General Assembly eliminated the harsh result when it adopted R.C. 2315.19, effective June 20, 1980. ³ This statute abolishes the old common-law bar of contributory negligence and substitutes a comparative negligence standard. Under this standard, a plaintiff may recover for injuries which arise from the negligence of defendant, even if the plaintiff himself is negligent to a degree. The recovery of the plaintiff is adjusted by the degree of his contributory negligence to the incident.

In Wilfong v. Batdorf (1983), 6 Ohio St.3d 100, 451 N.E.2d 1185, we adopted the comparative negligence standard set forth in R.C. 2315.19 as a modification of the common-law standard in Ohio, and held that this comparative negligence standard shall be applied in all negligence actions, irrespective of the occurrence date.

In Anderson v. Ceccardi (1983), 6 Ohio St.3d 110, 451 N.E.2d 780, we merged the common-law defense of assumption of risk into the comparative negligence statutory scheme contained in R.C. 2315.19.

In view of the foregoing, the defense of assumption of risk is no longer a bar to recovery in a negligence action in Ohio. Hence, we are of the opinion that this case presents a jury question concerning the alleged negligence of the decedent and CG & E, to be evaluated by the standard contained in R.C. 2315.19.

The judgment of the court of appeals is reversed and the cause is remanded to the trial court for further proceedings not inconsistent with this opinion.

Judgment reversed.

FRANK D. CELEBREZZE, C.J., and RESNICK and CLIFFORD F. BROWN, JJ., concur.

WILLIAM B. BROWN, LOCHER and HOLMES, JJ., dissent.

RESNICK, J., of the Sixth Appellate District, sitting for SWEENEY, J WILLIAM B. BROWN, Justice, dissenting.

Because the majority opinion ignores well-defined rules of law applicable to this case and misrepresents a "fact" essential to the majority's disposition of the case, I must respectfully dissent.

The central issue presented in this case is whether appellee, CG & E, owed a duty to protect the employees of an independent contractor where the independent contractor undertook to do work for CG & E which involved risks that the contractor and his employees appreciated.

The law is well-established in Ohio that a party who engages an independent contractor to perform services involving a risk of injury owes no duty to protect the independent contractor's employees from injury arising out of the work. Wellman v. East Ohio Gas Co. (1953), 160 Ohio St. 103 , 113 N.E.2d 629. In the first two paragraphs of the syllabus of that case, the following rules were set forth:

"Where an independent contractor undertakes to do work for another in the...