Michaels v. Ford Motor Co.

• Decision Date: 12 July 1995
• Docket Number: No. 94-524,94-524
• Citation: 72 Ohio St.3d 475,650 N.E.2d 1352
• Parties: MICHAELS, Appellant, v. FORD MOTOR COMPANY, Appellee.
• Court: Ohio Supreme Court

Page 475

72 Ohio St.3d 475

650 N.E.2d 1352

MICHAELS, Appellant, v. FORD MOTOR COMPANY, Appellee.

No. 94-524.

Supreme Court of Ohio.

Submitted April 25, 1995.

Decided July 12, 1995.

To construct a paint building at its truck plant in Avon Lake, Ohio, appellee Ford Motor Company hired Lathrop Contracting as the general contractor. Doane Electric was an electrical subcontractor on the construction site. While at the construction site, Russell Michaels, an employee of Doane Electric, sustained injuries after falling through a hole that Lathrop employees had cut in the second floor. Michaels died the next day.

John T. Hoey, Jr., a Ford employee, had instructed William Haase, Lathrop's assistant superintendent, to cut holes in the floor pursuant to specifications in the construction contract between Lathrop and Ford. Thinking that the holes would not be utilized immediately and that floor openings were a safety concern, Haase had objected to cutting the holes at that time. However, there was evidence that the holes were needed so that paint boxes could be designed and fabricated to fit inside the holes. Responding to Haase's concerns, Hoey had stated, "[Y]ou've got a job to do friend, you've got a contract, you cut the holes and you cover them." In point of fact, pursuant to its contract with Ford, Lathrop was responsible for providing and maintaining barricades and guard rails around floor openings until the openings were enclosed by permanent construction.

After Lathrop employees cut the hole through which Michaels would later fall, they covered the hole with a piece of plywood without securing the plywood to the floor. No one from Ford told any Lathrop employee how to cover any of the holes, including the one through which Michaels fell.

On February 21, 1990, a foreman of Doane Electric instructed Michaels, Daniel Edgar, and another Doane Electric employee to clear an area on the second floor, where they were going to install an electrical panel. While they were cleaning debris from the area, Edgar moved the loose piece of plywood covering the hole in the floor that Lathrop employees had cut. Edgar warned Michaels, who had his back to Edgar, not to move the piece of plywood because it was covering a hole. About fifteen minutes later, Edgar discovered that Michaels had fallen through the hole to the floor below. No one had witnessed the fall. The day after the accident occurred, Lathrop employees secured with screws the piece of plywood covering the hole.

Pursuant to R.C. 2125.01, appellant Glenn Michaels, the administrator of the estate of Russell Michaels, filed a wrongful death action against the Ford Motor Company, asserting that Ford violated its duties under R.C. 4101.11 and 4101.12 by failing to provide Michaels, a frequenter, with a safe place of employment. The Court of Common Pleas of Lorain County granted Ford's motion for summary judgment, finding that Ford did not owe Michaels a duty to provide a safe workplace.

Affirming the judgment of the trial court, the court of appeals held that Ford did not owe a duty of care to Michaels. The court reasoned that R.C. 4101.11 and 4101.12 did not apply because Ford did not have "custody or control" over Michaels or the area surrounding the floor opening on the day of his fall. The court explained that Ford merely had acted in a supervisory capacity at the construction site by monitoring work progress and ensuring that construction was completed according to specifications.

The cause is now before this court pursuant to the allowance of a discretionary appeal.

Spangenberg, Shibley, Traci, Lancione & Liber, John D. Liber and Justin F. Madden, Cleveland, for appellant.

Thompson, Hine & Flory, S. Stuart Eilers, Timothy J. Coughlin and Michael E. Smith, Cleveland, for appellee.

WRIGHT, Justice.

The issue in this case is whether an owner of a construction site, by virtue of directing a general contractor to perform a task required by contract specifications, owes a duty of care under R.C. 4101.11 and 4101.12 to an employee of a subcontractor who is subsequently injured as a result of the general contractor's failure to keep the area where it performed the task in a safe condition. The answer to this query is "no."

R.C. 4101.11 states: "Every employer * * * 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, * * * and shall do every other thing reasonably necessary to protect the life, health, safety, and welfare of such employees and frequenters. " (Emphasis added.) R.C. 4101.12 similarly imposes a duty upon an employer to provide employees and frequenters with a safe place of employment. ¹ As used in these two sections, "frequenter" means "every person, other than an employee, who may go in or be in a place of employment under circumstances which render him other than a trespasser." R.C. 4101.01(E).

The question in this case is whether Ford was an "employer" as to Michaels within the meaning of the frequenter statutes. Ford owed Michaels a duty to provide a safe place of employment only if it was an "employer" under the frequenter statutes. ² If Ford was not an "employer," the frequenter statutes simply do not apply. See Comerford v. Jones & Laughlin Steel Corp. (1959), 170 Ohio St. 117, 10 O.O.2d 11, 162 N.E.2d 861, syllabus.

R.C. 4101.01(C) defines "employer" as "every person, firm, corporation, agent, manager, representative, or other person having control or custody of any employment, place of employment, or employee." (Emphasis added.) It is undisputed that Ford did not have custody or control of Michaels or his employment. Therefore, the only remaining issue is whether Michaels was a frequenter of a place of employment that was under the custody or control of Ford.

On a case-by-case basis, this court has articulated the legal principles governing whether an owner (or a general contractor) ³ owes a duty of care under the frequenter statutes because it has custody or control of the employee, employment, or place of employment. In Wellman v. E. Ohio Gas Co. (1953), 160 Ohio St. 103, 51 O.O. 27, 113 N.E.2d 629, paragraph one of the syllabus, we held: "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."

In Hirschbach v. Cincinnati Gas & Elec. Co. (1983), 6 Ohio St.3d 206, 6 OBR 259, 452 N.E.2d 326, syllabus, we created an exception to the general rule: "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.) In Hirschbach, we concluded that the jury could reasonably find the owner liable for the death of an independent contractor's...