Merimee v. Wildner
2021 Ohio 2033
| Ohio Ct. App. | 2021Background
- Merimee, employed by Neubert Painting, was hired to paint the exterior of defendants’ two-story home, including the second-story wooden balcony railing.
- Industry practice (and Neubert’s instructions) required painters to place a ladder or scaffolding outside the balcony and paint facing the work with three points of contact; Merimee instead stepped over the railing onto the balcony and leaned over the railing while painting.
- The railing failed while Merimee was leaning over it; he fell 12–15 feet and suffered severe injuries. Post-accident inspection showed internal rot at the post base and rusted screws not apparent from above.
- Merimee filed suit alleging negligence by the homeowners; the trial court granted summary judgment for the homeowners on the ground that they owed no duty to warn him as an independent contractor performing inherently dangerous work.
- The court of appeals affirmed: because Merimee was an independent contractor performing work that involved inherent risks of falling, the homeowners owed no duty to warn; their knowledge of the railing’s condition (and Merimee’s marijuana use) was irrelevant to the duty question.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether homeowners owed a duty to an independent contractor painting an elevated railing | Homeowners knew or should have known railing was rotten and therefore owed a duty to warn or make safe | No duty existed because Merimee was an independent contractor performing inherently dangerous work | No duty owed; summary judgment for homeowners affirmed |
| Whether owners’ actual/constructive notice of the railing’s decay creates a duty despite independent-contractor status | Owners’ knowledge of hidden rot made condition an abnormally dangerous hazard requiring warning | Owner’s knowledge is irrelevant if the work itself is inherently dangerous and contractor appreciated the risk | Owners’ notice does not create a duty where the harm is intrinsic to the work and contractor knew the risk |
| Whether Merimee’s awareness of the danger (and deviation from prescribed methods) matters to duty | Merimee argues owners had superior knowledge and should have warned despite his methods | Owners contend Merimee knew the risks and rejected safer methods (ladder/scaffold) | Merimee’s awareness and rejection of safer methods shows he knew the risk; owners had no superior knowledge that would impose a duty |
| Whether plaintiff’s alleged marijuana use affects the duty analysis | Merimee’s intoxication is asserted by defendants to undermine his claim | Merimee says substance use is irrelevant to whether owners owed a duty | Intoxication is irrelevant to duty; it is a causation/comparative-negligence issue and does not negate the lack of duty |
Key Cases Cited
- Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 671 N.E.2d 241 (sets de novo standard for appellate review of summary judgment)
- Dresher v. Burt, 75 Ohio St.3d 280, 662 N.E.2d 264 (summary-judgment burdens for movant and nonmovant)
- Menifee v. Ohio Welding Prods. Inc., 15 Ohio St.3d 75, 472 N.E.2d 707 (elements of negligence: duty, breach, causation)
- Eicher v. United States Steel Corp., 32 Ohio St.3d 248, 512 N.E.2d 1165 (premises owner duty to frequenters and limits where hazard is intrinsic to work)
- Wellman v. E. Ohio Gas Co., 160 Ohio St. 103, 113 N.E.2d 629 (independent-contractor rule: no liability for hazards inherent in the work)
- Pusey v. Bator, 94 Ohio St.3d 275, 762 N.E.2d 968 (definition of "inherently dangerous" work requiring special precautions)
- Davis v. Charles Shutrump & Sons Co., 140 Ohio St. 89, 42 N.E.2d 663 (owner owes duty when owner has notice of danger that contractor lacks)
- Salvati v. Anthony-Lee Screen Printing, Inc., 117 N.E.3d 950 (8th Dist.) (distinguishes injuries during performance of inherently dangerous work from injuries outside the task; owner’s duty depends on comparative notice)