Kafel v. Republic Steel Corp., 71-354

Decision Date03 May 1972
Docket NumberNo. 71-354,71-354
Citation30 Ohio St.2d 55,282 N.E.2d 350
Parties, 59 O.O.2d 79 KAFEL, Appellee, v. REPUBLIC STEEL CORP., Appellant.
CourtOhio Supreme Court

Syllabus by the Court

1. The defense of assumption of risk is available to an 'employer,' as defined by R.C. § 4101.01(C) in an action by an employee of an independent contractor, defined by R.C. § 4101.01(E) as a 'frequenter,' alleging a violation of R.C. § 4101.11. (Westwood v. Thrifty Boy, 29 Ohio St.2d 84, 278 N.E.2d 673, followed.)

2. Where assumption of risk is available as a defense, that issue is generally one for determination by the jury under appropriate instructions from the court, and it is only when reasonable minds could come to but one conclusion that the issue becomes one for the court.

This is an action brought in the Common Pleas Court of Cuyahoga County by Celia Afel against Republic Steel Corporation to recover damages for personal injuries. The plaintiff was a charwoman employed by Advance Cleaning Contractors, Inc., an independent contractor, to work in Republic's plant in Cleveland. In the course of her employment duties she had to pass by a basic oxygen furnace. She testified that she had seen this furnace flare up an occasion; that she had been struck by sparks from the furnace several times and had also found holes burned in her clothing. On October 24, 1966 (after plaintiff had been working at Republic's plant for approximately eight months), as she was passing the furnace it allegedly flared up and emitted a shower of sparks, causing plaintiff to receive an injury to her eye.

Republic required its own employees to wear hard hats and safety goggles in the area of the furnace, and there was evidence that the plaintiff had observed employees of Republic wearing the hard hats and safety glasses on prior occasions.

In contracting with Advance, Republic supplied to Advance a copy of its safety rules, which provided, among other things, that enforcement of the rules by Advance's employees 'shall be completely the contractor's responsibility.' Rule 36 of these safety rules provided that 'proper eye protection and head protection must be worn in departments where required.' The contract also provided for indemnification in the event of liability by Republic to the employees of Advance.

Defendant's motion for a directed verdict, made at the close of all the evidence, was overruled by the trial court, and the cause was submitted to the jury which returned a verdict in favor of plaintiff. Motions for judgment notwithstanding the verdict and for new trial were overruled. The Court of Appeals for Cuyahoga County affirmed. The motion to certify the record to this court was allowed.

F. M. Apicella, Cleveland, for appellee.

Weston, Hurd, Fallon, Sullivan & Paisley, Frank Seth Hurd and Robert D. Rosewater, Cleveland, for appellant.

LEACH, Justice.

Republic asserts that it is entitled to final judgment in its favor as a matter of law on the basis (1) that it had not been shown to have been negligent, and (2) that, in any event, plaintiff was (a) negligent as a matter of law and (b) assumed the risk of injury as a matter of law. With these assertions we do not agree.

Alternatively, Republic asserts that it is entitled to a new trial based on the refusal of the trial court, upon proper request, to submit to the jury for its determination the issue of assumption of risk. We conclude (1) that assumption of risk is available as a defense in the type of case her under consideration, and (2) that, on the evidence herein adduced, reasonable minds could differ as to whether there had been such an assumption of risk on the part of the plaintiff.

There is no dispute between the parties as to the fact that the plaintiff was an employee of an independent contractor. Likewise, there is no dispute as to the fact that Republic is an 'employer.' as defined by R.C. § 4101.01(C), and that plaintiff is a 'frequenter.' as defined by R.C. § 4101.01(E).

Republic asserts that by supplying a copy of its safety rules to plaintiff's employer, Advance Cleaning Contractors, Inc., it had fully discharged any duties owed by it to the plaintiff. In support of this position Republic cites the case of Schwarz v. General Electric Realty Corp. (1955), 163 Ohio St. 354, 126 N.E.2d 906, which holds, in paragraph three of the syllabus:

'Where the owner of premises employs an independent contractor to do work thereon, is not in control of the work area, does not participate in the work, and gives notice to the contractor or those in charge of the work of the potential danger of contact with a high-tension electric line maintained on the premises, such owner is not legally obligated to give notice of such danger to the individual employees of such independent contractor who may be assigned by such contractor to unload steel beams at a site underneath such high-tension line.'

We reaffirm the principles of law expressed in the Schwarz case, but find that such are not applicable to the facts in this case. In Schwarz, the independent contractor was in control of the premises, while, here, the control of the premises remained in Republic. A jury could conclude from the evidence that Republic had full knowledge that the employees of Advance were not abiding by the safety requirements relating to hard hats and safety glasses, and that Republic took no steps to see that they did, although it admitted it had full authority to enforce compliance. The list of safety regulations provided to Advance are of little help in advising anyone of the specific areas or departments where hard hats and safety glasses were required. Rule 36 merely says that 'proper eye protection and head protection must be worn in departments where required.'

Paragraph three of the syllabus of Hozian v. Crucible Steel Casting Co. (1937), 132 Ohio St. 453, 9 N.E.2d 143, reads:

'When the owner or occupier or premises engages an independent contractor to do work thereon, an employee of the contractor, while executing the work, is impliedly there at the request of the owner and is an invitee toward whom the owner owes the duty of exercising ordinary care.'

Paragraph one of the syllabus of Bosjnak v. Superior Sheet Steel Co. (1945), 145 Ohio St. 538, 62 N.E.2d 305, reads:

'An employee of an independent contractor, while engaged in the erection of a building upon premises, the possession and control of which are retained by the owner, is an invitee to whom the owner owes the duty of exercising ordinary care to maintain the premises in a reasonably safe condition for use in a manner consistent with the invitation, and to inform the invitee of hazardous conditions of the premises and of activities thereon unknown by and not obvious to the invitee.'

Paragraph one of the syllabus of Bosjnak v. Superior Sheet Steel Co. (1945), 145 Ohio St. 538, 62 N.E.2d 305, reads:

'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.'

Applying the law as announced in Hozian, Bosjnak, Wellman, and Schwarz to the evidence in the instant case, we conclude that reasonable minds could differ as to whether, under all the circumstances, Republic exercised ordinary care. Thus we conclude that the trial court did not err in refusing to direct a verdict in favor of Republic as to the issue of negligence.

As to the issue of contributory negligence, we also are of the opinion that a jury issue was presented, and since such issue was submitted to the jury for its determination, we find no error in such respect.

As heretofore noted, plaintiff was a 'frequenter' within the meaning of R.C. § 4101.01(E), and thus, under the provisions of R.C. § 4101.11, Republic had the duty of furnishing 'a place of employment which shall be safe for the employees therein and for frequenters thereof.' Prior to our recent decision in Westwood v. Thrifty Boy (1972), 29 Ohio St.2d 84, 278 N.E.2d 673, a conflict existed in the opinions of some Courts of Appeals as to whether assumption of risk was an available defense in actions claiming a violation of the safe-place statutes. The instant case was argued and submitted to this court prior to our decision in Westwood. At that time, counsel for plaintiff argued that under no circumstances would the defense of assumption of risk be available in a 'frequenter' case. That same position had been taken in both the trial court and the Court of Appeals.

In Westwood, we held that the defense of assumption of risk is available in a 'frequenter' case. The syllabus thereof reads:

'1. R.C. § 4101.11, a safe-place statute, does not exact a duty to a frequenter substantially different from that imposed at common law upon an owner of property.

'2. Where a frequenter, as defined in R.C. § 4101.01(E), voluntarily and with knowledge of an existing danger enters the premises of an employer, as defined in R.C. § 4101.01(C), the defense of assumption of risk is available to such employer in an action by the frequenter alleging a violation of R.C. § 4101.11 of the safe-place statutes.'

Additionally, counsel for plaintiff contends that, even if the defense of assumption of risk be available in 'frequenter' cases, in the instant case there was no evidence which would permit the submission of that issue to the jury. We disagree.

Generally speaking, where assumption of risk is an available defense, such issue is a question for the jury under appropriate instructions from the court. Paragraph four of the syllabus of Baldridge v. Wright Gas Co. (1951), 154 Ohio St. 452, 96 N.E.2d 300.

We believe that the language of Justice Paul M. Herbert in Wever v. Hicks (1967), 11 Ohio St.2d 230, at page 234, 228 N.E.2d 315, at page 318, is a concise statement of the applicable law to be applied...

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