Perko v. Healthcare Servs. Group, Inc.
2021 Ohio 4216
| Ohio Ct. App. | 2021Background
- Plaintiff Jacqueline Perko, a resident at Solon Pointe (an assisted‑living/skilled‑nursing facility), slipped and fell in a community room while the floor was being waxed.
- Solon Pointe had hired Healthcare Services Group, Inc. (HSG), an independent contractor, to perform housekeeping and floor waxing; HSG employees left the waxing in progress without posting warnings or closing the room, though a drying fan was present.
- Perko settled her claims against HSG; the trial court granted summary judgment for Solon Pointe on Perko’s negligence claims, prompting this appeal.
- Perko argued Solon Pointe owed a nondelegable duty based on R.C. 5321.04 (Landlord‑Tenant Act) or R.C. 3721.13 (resident rights statute), or that floor waxing was inherently dangerous, so Solon Pointe could not escape liability for the contractor’s negligence.
- The court held R.C. 5321.04 did not apply to a licensed “home” under R.C. Chapter 3721, R.C. 3721.13 does not create a separate nondelegable duty, and waxing is not inherently dangerous; therefore Solon Pointe was not liable for HSG’s negligence and summary judgment was affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether employer liable for independent contractor’s negligence (nondelegable duty) | Perko: duty to residents was nondelegable, so Solon Pointe liable for HSG’s negligence | Solon Pointe: general rule bars imputing contractor’s negligence to employer absent a nondelegable duty | Court: No nondelegable duty shown; employer not liable for contractor’s negligence; summary judgment affirmed |
| Whether R.C. 5321.04 applies to create a statutory nondelegable duty | Perko: Solon Pointe is like a landlord; R.C. 5321.04 imposes nondelegable duty to keep common areas safe | Solon Pointe: R.C. 5321.01 excludes facilities licensed under Chapter 3721 from the Landlord‑Tenant Act | Court: R.C. 5321.04 inapplicable because a licensed “home” under Chapter 3721 is excluded; cannot base nondelegable duty on R.C. 5321.04 |
| Whether R.C. 3721.13 (resident rights) creates a nondelegable statutory duty | Perko: resident‑rights statute imposes duties that make liability nondelegable | Solon Pointe: R.C. 3721.17 requires negligence to recover; Chapter 3721 invokes general tort standards, not a separate nondelegable duty | Court: R.C. 3721.13/3721.17 do not create a nondelegable duty distinct from ordinary negligence principles |
| Whether waxing floors is inherently dangerous (exception to delegable duty) | Perko: waxing produced a dangerously slippery condition; special precautions required, making the work inherently dangerous | Solon Pointe: waxing is routine maintenance; any hazard is ordinary and foreseeable, handled by contractor | Court: Waxing is a routine activity, not inherently dangerous; exception inapplicable |
Key Cases Cited
- Strayer v. Lindeman, 68 Ohio St.2d 32 (rule that employer generally not liable for independent contractor’s negligence)
- Pusey v. Bator, 94 Ohio St.3d 275 (definition and limits of the inherently dangerous‑work exception)
- Shump v. First Continental‑Robinwood Assocs., 71 Ohio St.3d 414 (statutory nondelegable duties and Restatement discussion)
- Grafton v. Ohio Edison Co., 77 Ohio St.3d 102 (summary judgment de novo review standard)
- Dresher v. Burt, 75 Ohio St.3d 280 (moving party’s burden in summary judgment practice)
- Strother v. Hutchinson, 67 Ohio St.2d 282 (elements of negligence)
- Altercare of Mayfield Village, Inc. v. Berner, 86 N.E.3d 649 (8th Dist.) (Chapter 3721 negligence/recovery requires negligent act; does not by itself create nondelegable duties)