{¶ 2} On Octоber 28, 2002, appellant, together with his wife, Nancy Emrich, filed a complaint against appellees for negligence. Appellees filed motions for summary judgment. By judgment entry filed March 11, 2004, the trial court granted the motions and dismissed appellants' complaint.
{¶ 3} Appellants filed an appeal and this matter is now before this court for consideration. Assignments of error are as follows:
{¶ 7} The issues raised can be divided into three categories. First, was Capital Services an independent contractor of Hospital? Second, is the cleaning of hospital floors tantamount to engaging in an inherently dangerous undertaking? Lastly, did Capital Services breach its duty of the standard of care toward appellants?
{¶ 8} Summary Judgment motions are to be resolved in light of the dictates of Civ. R. 56. Said rule was reaffirmed by the Supreme Court of Ohio in State ex rel. Zimmerman v. Tompkins,
{¶ 9} "Civ. R. 56(C) provides that before summary judgment may be granted, it must be determined that (1) no genuine issue as to any material fact remains to be litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the nоnmoving party, that conclusion is adverse to the party against whom the motion for summary judgment is made. State ex.rel. Parsons v. Fleming (1994),
{¶ 10} As an appellate court reviewing summary judgment motions, we must stand in the shoes of the trial court and review summary judgments on the same standard and еvidence as the trial court. Smiddy v. The Wedding Party, Inc. (1987),
{¶ 11} Preliminarily, appellants argue the trial court erred in not considering the report of their expert, Bernard J. Krotchen, attached to their January 16, 2004 memorandum contra as Exhibit 6. This argument is not separatеly assigned as error, but is argued within this assignment of error and is vaguely referenced in the "Issues Presented." See, Appellants' Brief at xviii.
{¶ 12} In National City Bank v. Victor Building Company,Inc. (October 20, 2000), Lucas App. No. L-99-1311, our brethren from the Sixth District stated the following:
{¶ 13} "The evidence submitted in support of or in opposition to a motion for summary judgment must be competent within the legal meaning of that word. Sweet [v. D'Poo's (Feb. 3, 1994), Cuyahoga App. No. 65873], supra; see, also, Jackson v. AlertFire and Safety Equip., Inc. (1991),
{¶ 14} In its judgment entry of March 11, 2004, the trial court found the report was not of affidavit or evidentiary quality and disallowance it. We concur. The report is a copy that is not in affidavit form, and doеs not contain a curriculum vitae of the expert. Upon review, we find the trial court did not err in not considering the report.
{¶ 16} Generally, an employer is not liable for the negligent acts of an independent contractor. Pusey v. Bator,
{¶ 17} "There are, however, excеptions to this general rule, several of which stem from the nondelegable duty doctrine. Nondelegable duties arise in various situations that generally fall into two categories: (1) affirmative duties that are imposed on the employer by stаtute, contract, franchise, charter, or common law and (2) duties imposed on the employer that arise out of the work itself because its performance creates dangers to others, i.e., inherently dangerous work. Prosser Keeton, The Law of Torts (5 Ed. 1984) 511-512, Section 71; Albain v. FlowerHosp. (1990),
{¶ 18} The question sub judice then is whether the cleaning of the floor was inherently dangerous thereby impugning liability back to appellee Hospital or there was evidence of negligent hiring of Capital Services by Hospital.
{¶ 19} In Pusey at 279-280, Justice Douglas defined when an independent contractor's work can be termed inherently dangerous:
{¶ 20} "Work is inherently dangerous when it creates a peculiar risk of harm to others unless special precautions are taken. See Covington Cincinnati Bridge Co. v. Steinbrock Patrick (1899),
{¶ 21} "To fall within the inherently-dangerous-work exception, it is not necessary that the work be such that it cannot be done without a risk of harm to others, or even that it be such that it involves a high risk of such harm. It is sufficient that the work involves a risk, recognizable in advance, of physical harm to others, which is inherent in the work itself. 2 Restatement of the Law 2d, Torts, at 416, Section 427, Comment b.
{¶ 22} "* * *
{¶ 23} "The inherently-dangerous-work exception does apply, however, when special risks are associated with the work such that a reasonable man would recognize the necessity of taking special precautions. The work must create a risk that is not a normаl, routine matter of customary human activity, such as driving an automobile, but is rather a special danger to those in the vicinity arising out of the particular situation created, and calling for special precautions. 2 Restatement of the Law 2d, Torts, at 385, Section 413, Comment b; Prosser Keeton at 513-514, Section 71."
{¶ 24} The cleaning of a linoleum floor does not fit the definition supra, despite any allegation of a specific chemical used. We note there is not any evidence of a specific chemical or modus of cleaning used; only a veiled inference. Therefore, we conclude the trial court did not err in determining the actions of Capital Services were not inherently dangerous.
{¶ 25} Appellants' memorandum contra to Hospital's motion for summary judgment did not raise any genuine issues of material fact on the question of negligent hiring.
{¶ 26} Based upon Capital Services's status as an independent contractor and no evidence of inherently dangerous work or negligent hiring, we find the trial court appropriately entered summary judgment for Hospital.
{¶ 28} "An independent contractor who creates a dangerous condition on real property is not reliеved of liability under the doctrine which exonerates an owner or occupier of land from the duty to warn those entering the property concerning open and obvious dangers on the property."
{¶ 29} The Simmers court at 645 stated that since Bentley had no property interest in the premises, they "must look to the law of negligence to determine Bentley's duty of care, and then consider the significance of the factual finding that the hole was open and obvious." The Simmers court explained:
{¶ 30} "Under the law of negligence, a defendant's duty to a plaintiff depends upon the relationship between the parties and the foreseeability of injury to someone in the plaintiff's position. * * * Injury is foreseeable if a defendant knew or should have known that its act was likely to result in harm to someone. * * *" (Citations omitted.)
{¶ 31} The appropriate standard is the duty to care. The duty to appellants in this case depends upon the relationship between the parties and the fоreseeability to someone in appellant's position. It is clear the hallway wherein appellant slipped was a well-traveled corridor in the hospital and Capital Services should have known individuals would traverse the аrea. The standard of care would be a general negligence standard. The issue therefore is whether the "yellow placard" warning of caution was sufficient given the nature of the floor.
{¶ 32} Pursuant to summary judgment standard, we must presume the evidence in a light most favorable to the non-moving party, appellants herein. Upon seeing the caution "wet floor" sign, appellant assumed the floor was wet with water. J. Emrich depo. at 99. After seeing the sign, appellant noticed the floor was dull so he proceeded past the "wet floor" sign, took two steps and fell. Id. at 91, 98. Appellant described the floor's condition as "[z]ero tension," "[e]xtremely super slippery" and "slipperier than oil." Id. at 101, 112. Given the cоndition of the floor, it was impossible for appellant to have walked on it. Id. at 112. We must presume the substance on the floor was not water. Given the general negligence standard to be used, we find the facts construed most favorable to appellants raise genuine issue of material fact as to whether the "wet floor" sign was sufficient warning to appellant.
{¶ 33} Upon review, we find the trial court erred in granting summary judgment to Capital Services.
{¶ 34} Assignment of Error I is denied as to Hospital and granted as to Capital Services.
{¶ 36} The proper procedure when a party feels that the trial judge should be recused is to file an affidavit of disqualification "not less than seven calendar days before the day on which the next hearing in the proceeding is scheduled * * *." R.C.
{¶ 37} Assignment of Error II is denied.
{¶ 38} The judgment of the Court of Common Pleas of Delaware County, Ohio is hereby affirmed in part and rеversed in part.
Farmer, J., Gwin, P.J. and Wise, J. concur.