Salemi v. Duffy Const. Corp.
| Citation | 32 O.O. 2d 171,209 N.E.2d 566,3 Ohio St.2d 169 |
| Decision Date | 28 July 1965 |
| Docket Number | No. 38934,38934 |
| Parties | , 32 O.O.2d 171 SALEMI, Appellee, v. DUFFY CONSTRUCTION CORP., Appellant. |
| Court | United States State Supreme Court of Ohio |
Syllabus by the Court
1. Where one who holds a grading and excavating subcontract for a rough construction site enters upon such site on a Sunday evening at dusk, for his own benefit and when no work is in progress or has been done on that Sunday, and when his contract does not require his presence at the site on Sunday, and when neither the owner nor general contractor had made an express or implied request for his presence on the site at that time or knows of his presence or intention to enter upon the site at such time, such subcontractor is a licensee.
2. A general contractor in control of such premises owes a licensee the duty not to injure him by willful or wanton misconduct or any affirmative act of negligence and, if he knows of his presence to warn him of any danger.
The plaintiff, a subcontractor, instituted this negligence action for personal injuries alleged to have been sustained when he fell into an open excavation on a construction site, and named as defendant the general contractor.
The plaintiff, whose subcontract required him to do the excavating and grading, visited the construction site on Saturday, October 6, 1956, at about 1:30 p.m., for the purpose of laying out his plan of work for the following week.
After the plaintiff left the premises, the defendant's foreman directed an employee of another subcontractor to make an excavation 40 feet long for the purpose of installing toilet facilities and a septic tank on the construction site as required by the defendant's contract with the owner, the General Electric Corporation. For the most part, this was a shallow excavation but that part of the excavation which was most distant from the public highway was 6 feet wide and 7 feet deep for a length of about 10 feet. The entire excavation at all points was more than 200 feet from the public highway.
The plaintiff testified that on Sunday, October 7, he returned to the construction site at approximately 6:00 p.m. The sun had set and it was dusk. He stated that his purpose in returning to the site was to examine the condition of the premises to see whether the rain which had fallen during Saturday night and part of the day Sunday necessitated changes in his work plan for the next day. He also wanted to check his equipment.
The plaintiff parked his car, turned out his car lights and walked along the tracks of an old farm road which once had led from the public highway to a barn and farmhouse before the premises had been acquired as a construction site. This former farm road was being used by workmen as an entranceway to the construction site.
The excavation which had been made the previous day ran parallel and adjacent to this roadway.
The plaintiff walked along the roadway beside the shallow part of the excavation for some 30 feet. He testified that he could see clods of dirt and ruts in the roadway and that he noticed a windrow of dirt which was along the far side of the excavation, but that he did not discern the hole created by the excavation. There were no warning lights or barricades.
The plaintiff fell into the deep part of the excavation and was injured.
After jury trial a verdict was returned for the plaintiff in the amount of $185,000. A motion for a new trial was denied.
The Court of Appeals, with one member dissenting, affirmed the judgment of the trial court.
The cause is before this court upon the allowance of a motion to certify the record.
Dudnik, Komito, Nurenberg, Plevin, Dempsey & Jacobson and Marshall I. Nurenberg, Cleveland, for appellee.
Arter, Hadden, Wykoff & Van Duzer and Smith Warder, Cleveland, for appellant.
The question presented to this court is whether the plaintiff was a business invitee or merely a licensee at the time when he fell into the excavation and was injured.
It is agreed that the plaintiff was not required by his contract to visit the construction site on a Sunday evening when no work was in progress and no other person was present on the premises. It is agreed that no work was done on Sunday. It is agreed that there was no express or implied request by the defendant that plaintiff visit the construction site on Sunday evening at dusk. There is nothing in the record which would indicate that the defendant had any reason to know taht the plaintiff would visit the construction site at dusk on that Sunday evening.
The plaintiff makes no contention that the defendant was liable under Sections 4101.11 and 4101.12 of the Revised Code (frequenter statutes). Plaintiff makes no claim that he was a frequenter.
Sections 4101.11 and 4101.12, supra, are not applicable in this case. The premises were obviously not a place of employment on Sunday evening. No work was being performed.
The plaintiff relies solely upon the claim that he was a business invitee of the defendant.
The plaintiff maintains that his visit was for the benefit of the defendant, on the ground that the defendant was urging him to complete his subcontract as quickly as possible, and on the further ground that, if the defendant's contract with the owner, the General Electric Corporation, was completed at a cost below the guaranteed maximum, the defendant was to receive 25% of the savings below that guaranteed maximum, and the General Electric Corporation was to receive 75% of such savings.
The weakness in plaintiff's position is that the plaintiff's subcontract with the defendant called for a unit-price contract under which the amount to be paid to plaintiff by the defendant was computed upon the amount of earth moved, rather than on the time spent.
In additon to that, the time limit in the defendant's contract with the General Electric Corporation did not begin to run until the structural steel was erected.
It appears that the plaintiff went to the construction site at dusk on Sunday evening for his own benefit. This is substantiated by his testimony that, if the rain had been heavy enough to prevent efficient work the following day, he could call the person from whom he rented the equipment and request that no men be sent to the job the next morning, thus saving himself the cost of renting the equipment for that day and the cost of wages of the men.
He testified further that he could divert some of his own equipment to other areas where he had jobs, thus making an additional saving for himself.
The record does not support the plaintiff's position that his trip to the construction site on Sunday evening was for the benefit of the defendant, or that it was required by his contract with the defendant, or that it was requested by the defendant, or that the defendant had knowledge that he intended to make such a trip. The plaintiff was not a business invitee to this construction site at that time, but a licensee. Scheurer v. Trustees of Open Bible Church, 175 Ohio St. 163, 192 N.E.2d 38; Scheibel v. Lipton, 156 Ohio St. 308, 102 N.E.2d 453; Keesecker v. G. M. McKelvey Co., 141 Ohio St. 162, 166, 47 N.E.2d 211.
The defendant owed to this plaintiff-licensee the duty not to injure him by willful or wanton misconduct or any affirmative act of negligence. Scheurer v. Trustees of Open Bible Church, surpa; Soles, Admr., v. Ohio Edison Co., 144 Ohio St. 373, 59 N.E.2d 138; Hicks v. Village of Cortland, 123 Ohio St. 114, 117, 174 N.E. 241; Cleveland, Cincinnati, Chicago & St. Louis Ry. Co. v. Potter, 113 Ohio St. 591, 150 N.E. 44; Hannan, Admr., v. Ehrlich, 102 Ohio St. 176, 131 N.E. 504; John v. Reick-McJunkin Dairy Co., 281 Pa. 543, 127 A. 143; 65 C.J.S. Negligence §§ 35-38, pp. 491 to 504.
Plaintiff does not claim that there was a hidden trap or any violation of a duty concerning the condition of the premises prescribed by statute, ordinance or safety regulations for the benefit of the plaintiff.
The defendant did not know of the plaintiff's presence on the premises and had no opportunity to warn him of any danger. Scheurer v. Trustees of Open Bible Church, supra, paragraph two of the syllabus.
The determination of this question requires a reversal of the judgment of the Court of Appeals, and it is unnecessary to consider any other alleged errors.
The judgment of the Court of Appeals is, therefore, reversed and final judgment is rendered for the defendant.
Judgment reversed.
The question here, as stated in the majority opinion, is whether appellee was a 'licensee' or an 'invitee' at the time when he was injured. The answer to this question as well as the determination of the duty owed by appellant, the construction company, to the appellee, according to the majority opinion, requires the application of principles of the common law. However, the General Assembly enacted Sections 4101.11 and 4101.12 of the Revised Code and thereby, in plain and definite language, abrogated the common law and defined the duty owed by appellant to appellee by statutory enactment.
These sections of the Revised Code read in part:
Section 4101.11. '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,...
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