Walker v. Mid-States Terminal, Inc., MID-STATES

• Decision Date: 09 March 1984
• Docket Number: MID-STATES,No. L-83-278,L-83-278
• Citation: 477 N.E.2d 1160,17 Ohio App.3d 19
• Parties: , 17 O.B.R. 71 WALKER et al., Appellants, v.TERMINAL, INC. et al., Appellees. *
• Court: Ohio Court of Appeals

Page 19

17 Ohio App.3d 19

477 N.E.2d 1160, 17 O.B.R. 71

WALKER et al., Appellants, v. MID-STATES TERMINAL, INC. et al., Appellees. ^*

No. L-83-278.

Court of Appeals of Ohio, Sixth District, Lucas County.

March 9, 1984.

Syllabus by the Court

1. The determination as to whether the owner of property may be held liable, pursuant to the Ohio "frequenter" statutes (R.C. 4101.01 et seq.), for injuries sustained by employees of an independent contractor presents a jury question and turns upon a finding of the retention of the right to possession and control of the premises and is not limited to a finding of actual exercise of such rights. (Hirschbach v. Cincinnati Gas & Elec. Co. [1983], 6 Ohio St.3d 206, 452 N.E.2d 326, applied.)

2. An employee's cause of action against his employer for an intentional tort is not barred by the employee's acceptance of workers' compensation benefits for the reason that the remedies are not mutually exclusive as to the employee in that the injury arises in the course of the employee's employment but the employer's conduct is outside of the course of employment. (Blankenship v. Cincinnati Milacron Chemicals [1982], 69 Ohio St.2d 608, 433 N.E.2d 572 , applied.)

3. The fact that the specific piece of equipment manufactured by an employer for use by his employees is not commercially marketed will not preclude liability under the dual-capacity exception to employer immunity pursuant to the Workers' Compensation Law where said employer manufactures the general class of product for commercial sale.

David M. Mohr, Toledo, for appellants.

Robert J. Potter, James R. Jeffrey and Byron S. Choka, Toledo, for appellees.

DOUGLAS, Judge.

This case comes before this court on appeal from judgment of the Lucas County Court of Common Pleas.

This case arose from the following facts and circumstances. On or about October 16, 1978, appellee Mid-States Terminal, Inc. (hereinafter referred to as "Mid-States") entered into a written contract with appellee Stout Construction Company (hereinafter referred to as "Stout") for the construction of grain silos on Mid-States' premises located on Miami Street in the city of Toledo, Ohio. On or about December 27, 1979, one of Stout's employees, Lee Walker, Jr., met his death, and another, Robert Gabriel, sustained permanently disabling injuries as a result of a construction accident involving a material hoist.

The material hoist was being used at the time of the accident to lift the two employees to a level where they could remove wood forms which had been used in the construction of the silos. Although Stout could have rented an Underwriters Laboratory-approved personnel hoist for this purpose, they chose instead to modify a material hoist by splicing the cable to permit the hoist to reach the necessary height of two hundred eighty-five feet. According to the testimony of the president of Stout, the company's safety policies prohibited both the use of material hoists for personnel and the splicing of cables in either material or personnel hoists.

While the material hoist was being used to lift the two employees, the point at which the cables had been spliced reached a small opening in the concrete at the top of the silo through which the cable passed. Although the opening was large enough to permit the cable to flow freely, it was not large enough to permit the clips attached to the spliced point to pass through. Accordingly, as the clips reached the opening, the cable jammed, tensed and broke, and the hoist fell approximately one hundred forty-five feet to the ground.

Subsequently, appellants, Carolyn J. Walker, administratrtix of the estate of Lee Walker, Jr., and Robert Gabriel, instituted this cause of action in the Lucas County Court of Common Pleas against appellees Mid-States and Stout. The trial court granted summary judgment in favor of Mid-States and Stout, ¹ and appellants thereafter instituted this appeal, presenting the following assignments of error:

"I. The trial court erred in holding that as a matter of law the appellee Mid-States Terminal, as owner of the premises, owed no duty to the appellants.

"II. The trial court erred in granting summary judgment for defendant Stout Construction Company and against appellants since the worker's [sic ] compensation law does not bar the pursuit of a civil remedy by an employee or his estate when the injury and/or death of the employee is either the result of an employer's act in a dual or second capacity, separate and apart from its status as an employer, or the result of an intentional tort committed by the employer."

In their first assignment of error, appellants contend that the trial court erred in granting summary judgment in favor of Mid-States on the ground that Mid-States owed no duty of care to appellants. In support of their assignment of error, appellants argue that Mid-States had a duty to furnish appellants with a safe place of employment pursuant to R.C. 4101.11 and 4101.12, which provide, respectively, as follows:

"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, shall furnish and use safety devices and safeguards, shall adopt and use methods and processes, follow and obey orders, and prescribe hours of labor reasonably adequate to render such employment and places of employment safe, and shall do every other thing reasonably necessary to protect the life, health, safety, and welfare of such employees and frequenters."

"No employer shall require, permit, or suffer any employee to go or be in any employment or place of employment which is not safe, and no such employer shall fail to furnish, provide, and use safety devices and safeguards, or fail to obey and follow orders or to adopt and use methods and processes reasonably adequate to render such employment and place of employment safe. No employer shall fail to do every other thing reasonably necessary to protect the life, health, safety, and welfare of such employees or frequenters. No such employer or other person shall construct, occupy, or maintain any place of employment that is not safe." (Emphasis added.)

Thus, pursuant to R.C. 4101.11 and 4101.12, an employer has a statutory duty to provide a safe place of employment and to take those measures reasonably necessary to protect " * * * the life, health, safety, and welfare" of the employees and frequenters of his place of employment. In this case, however, appellants were employees of Stout, an independent contractor, retained to construct grain silos on Mid-States' property. In such cases, the Ohio Supreme Court has determined that the liability of the owner of the property for injuries sustained by employees of an independent contractor turns upon the retention of possession and control of the premises by the owner. See Hirschbach v. Cincinnati Gas & Elec. Co. (1983), 6 Ohio St.3d 206, 208-209, 452 N.E.2d 326; Comerford v. Jones & Laughlin Steel Corp. (1959), 170 Ohio St. 117, 120, 162 N.E.2d 861 ; Wellman v. East Ohio Gas Co. (1953), 160 Ohio St. 103, 106-109, 113 N.E.2d 629 ; Bosjnak v. Superior Sheet Steel Co. (1945), 145 Ohio St. 538, 62 N.E.2d 305 , paragraph one of the syllabus. Clearly, the owner of the premises may be held liable for injuries sustained as a result of hazards in existence at the time the independent contractor and his employees entered the premises or in those areas of the premises over which the owner retained possession and control.

In the case sub judice, however, appellants were injured as a result of the misuse of equipment brought onto the premises by their employer, Stout. Appellants contend, however, that Mid-States retained such control over the construction project by virtue of the terms of its contract with Stout and that the provisions of R.C. 4101.11 and 4101.12 are applicable to impose liability upon Mid-States in this case.

In support of their contention, appellants urge our consideration of the Ohio Supreme Court's recent decision in Hirschbach, supra, in which the court held in the syllabus that:

"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."

In Hirschbach, the defendant, through its inspector, actually directed the placement of a winch, in violation of safety standards and over the objections of the employees of the independent contractor, which resulted in the death of one of the employees. Although appellants do not contend that Mid-States was directly involved in the decision to use the modified material hoist for personnel, appellants argue that Mid-States reserved control over the premises and the methods of construction in sections 1.10 and 1.12 of the contract, which provide, respectively, as follows:

"1.10 EMERGENCIES

"In an emergency or threatened emergency affecting or liable to affect the safety of life or property, either party shall have the right and authority to stop the work and/or order and direct such changes therein or in the methods, plant and tools used by the Contractor or Owner, as necessary in the circumstances."

"1.12 INSPECTION AND TESTING

"All plant to be provided, work to be performed, and material and equipment to be supplied pursuant to the contract shall at all reasonable times and on reasonable notice be subject to inspection and testing by Owner or its inspector. Any special test which Owner requires are set forth in the Specifications. The Contractor shall cooperate with Owner or inspector and shall make reasonably available every facility which the Contractor possesses for inspecting and testing." (Emphasis added.)

Additionally, appellants note...