Sopkovich v. Ohio Edison Co.
| Decision Date | 13 May 1998 |
| Docket Number | No. 97-317,97-317 |
| Citation | 81 Ohio St.3d 628,693 N.E.2d 233 |
| Parties | SOPKOVICH, Admr., Appellee, v. OHIO EDISON COMPANY, Appellant. |
| Court | Ohio Supreme Court |
On July 15, 1987, Michael J. Lexie, then an employee of Morakis Sons Industrial Painting Company, Inc. ("Morakis Sons"), sustained severe injuries when he came into contact with high voltage electricity while painting an electric substation owned and operated by the Ohio Edison Company, appellant. Ohio Edison had hired Morakis Sons, an independent contractor, to perform the painting work. The accident occurred at Ohio Edison's electric substation in Masury, Ohio. The following relevant matters can be gleaned from the record.
In March 1987, Morakis Sons entered into an agreement with Ohio Edison to paint steel structures at Ohio Edison's electric substation in Masury. The terms of the agreement required Morakis Sons to "furnish all labor, supervision, tools, equipment of every sort, temporary structures and all materials for temporary use and not to be permanently applied to Edison's structures in the course of the painting." The agreement also provided that Morakis Sons was to assume full responsibility for the work and the conduct of its employees, and that "[d]irections and instructions shall be given to labor only by [Morakis Sons] or its representatives, and in no circumstances by Edison or its representatives."
The Masury substation was a "transmission" substation through which high voltage electricity flowed. The record indicates that it was not feasible to shut off the entire flow of electricity through the substation during the period in which Morakis Sons was to perform the painting work. Specifically, the record indicates that to shut down the entire flow of electricity through the substation would have resulted in a loss of power to thousands of Ohio Edison customers. However, Ohio Edison was able to stop the flow of electricity through certain conductors in some areas of the substation without interrupting service to its customers.
Morakis Sons began painting the steel structures at the Masury substation in July 1987. Patrick Campbell was Ohio Edison's on-site representative. James Morakis ("Morakis"), the president of Morakis Sons, was the supervisor of the painting crew. Each day, prior to the commencement of the painting work, Campbell would confer with Morakis, in the presence of the painters, to inform him which conductors were "hot" (energized) and which had been de-activated. Morakis would then convey or repeat that information to the painters. After informing Morakis of the energized and de-energized areas, Campbell would remain at the substation to answer questions and to ensure that the painting work was properly completed. Campbell would also occasionally speak directly to the painters, but these conversations were generally limited to the topic of which electrical lines or circuits were active and which had been de-energized.
At all relevant times, Ohio Edison retained exclusive control over the determination of which electrical circuits or lines would be de-energized at the substation. Ohio Edison also retained exclusive control over the process of activating and de-activating the lines. Apparently, whenever Morakis Sons finished painting an area or section that had been de-energized, Ohio Edison would execute "switching orders" to totally or partially de-energize the next area or section in which the painting work was to be completed. When this occurred, Campbell would inform Morakis of the areas that were de-energized, and Morakis would then apprise the painting crew of the areas in which it was safe to paint. At all times, Morakis remained on the job site to direct and supervise the work of the painting crew and to ensure that the members of his crew did not stray into energized areas.
On July 15, 1987, the day of the accident, Morakis instructed Lexie, an employee of Morakis Sons, to paint certain I-beams that were located approximately thirty to forty feet off the ground. By early afternoon, Lexie had completed the assigned task and began to descend from the structure. While making his way down the structure, Lexie received a massive electrical shock, causing him to fall from the structure to the ground. In a deposition taken January 22, 1990, Lexie could not recall precisely how the accident occurred, but testified that "I come off an I-beam and I think I was crawling to my left on this box trying to get down again and then the next thing I know I'm on the ground." Lexie testified that he never came into contact with any electrical line, and that the electricity had simply "reached out and touched me." Lexie claimed that there were "hot" wires all around him in the area where he was working on the day of the accident, and that he had complained to Campbell and to Morakis prior to the accident that the area was dangerous. However, according to Lexie, Morakis had instructed him to get back to work. Lexie testified further that he had asked Campbell prior to the accident whether there were any warning flags that could be hung from the electrical lines to help the painters distinguish between the "hot" (energized) and "cold" (de-energized) areas, but that Campbell had stated that there were no flags at the Masury substation.
Morakis was watching Lexie moments before the accident occurred. According to Morakis, Lexie was nowhere near an energized area at the time Morakis was watching him. However, in the seconds preceding the accident, Morakis turned to check on the location of his other painters. At that moment, Morakis heard a "bang," saw a "flash," and then turned back to see that Lexie had fallen to the ground. In an April 1991 deposition, Morakis testified that Morakis estimated that Lexie was more than ten feet inside the energized area at the time of the accident. He also testified that Lexie had "walked right into the main bus." When asked how he knew that Lexie had walked into the energized area, Morakis responded, "[b]ecause we saw the burn from his glove, evidently, on the main bus there." Morakis testified further that Lexie was working in a safe (de-energized) area prior to the accident, and that Lexie was under his direct supervision and control the entire time:
Campbell was deposed in May 1991. Campbell could not recall whether he had personally performed the switching procedures to de-energize sections of the "69 KV bay" where Lexie was painting on the day of the accident. However, there is apparently no dispute that an area or section of the bay had in fact been de-energized by Ohio Edison. Campbell was outside the bay when the accident occurred. However, he arrived at the scene moments later and observed Lexie lying on the ground "a little bit more towards underneath the energized [area] than the de-energized [area]."
Lexie suffered severe injuries as a result of the accident. On July 14, 1989, he filed a complaint in the Court of Common Pleas of Trumbull County against Ohio Edison. In the complaint, Lexie alleged, among other things, that Ohio Edison had acted negligently in failing to (1) provide a safe place of employment, (2) eliminate known hazards, (3) "adequately supervise the work activities," (4) install proper safety devices, and (5) de-energize the electrical lines involved in the accident. On August 4, 1989, Ohio Edison filed its answer to the complaint.
In February 1991, Ohio Edison moved for summary judgment. Relying primarily on the case of Wellman v. E. Ohio Gas Co. (1953), 160 Ohio St. 103, 51 O.O. 27, 113 N.E.2d 629, Ohio Edison argued that it had owed no duty to Lexie because he had been working for an independent contractor when the accident occurred, and because the job of painting electric substations is an inherently dangerous activity. Additionally, Ohio Edison argued that it had not actively participated in the painting work, since Morakis Sons had directed and controlled the activities of the painting crew. In support of its motion, Ohio Edison relied on, among other things, Lexie's deposition testimony, the March 1987 contract between Morakis Sons and Ohio Edison, and an affidavit signed by Morakis. Morakis's affidavit includes the following averments:
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