Kelly v. Ford Motor Co.Kelly v. Ford Motor Co.
OPINION
Plaintiff commenced this suit in Common Pleas Court by filing a petition against three defendants, namely, Johnson, Drake & Piper, Inc., Smith & Oby Company, and the Ford Motor Company, to recover damages for injuries sustained when a step ladder fell upon plaintiff from the platform of a scaffolding approximately thirty feet above the place where he was working. In the midst of trial, Johnson, Drake & Piper, Inc. and Smith & Oby Company, were dismissed as defendants to the action pursuant to a covenant not to sue, executed in their favor
The evidence shows that late in 1950 Ford began the construction of a foundry building and a boiler house on its property at 17601 Brook-park Road, Cuyahoga County, Ohio. Because the accident, which is the subject of this suit, occurred at the boiler house, the evidence in the record is generally confined to the area of its construction and environs. The record shows that Ford entered into contracts with several different contractors for the construction of the boiler house and for its overall preparation for operation. The contractors were designated as general contractors in agreements with Ford, but none of the contractors had supervisory control over the other. Part of the work of these contractors was subcontracted to other firms. Thus, Johnson, Drake & Piper, Inc., one of the original defendants, whose contract related to the building of the foundation and the erection of the walls and roof on the structural steel frame, had its own cement finishers, but engaged Smith & Oby Company, another original defendant herein, as a subcontractor to do the steamfitting. The employer of plaintiff, The Thomas J. Waldron Company, was hired to install fire brick in the boilers. As work on the boiler house progressed, a scaffold or construction platform was erected by Johnson, Drake & Piper, Inc. Its workmen, particularly cement finishers, used the overhead platform in the performance of their work. At times, that platform was also used by employees of Smith & Oby Company. The plaintiff, as an employee of a subcontractor, The Thomas J. Waldron Company, worked with a crew that operated a power saw which was used to cut fire brick to desired sizes. The saw was located at a place beneath the overhead construction platform because it was convenient to the boiler. The crew had been working there for several days prior to the accident.
A careful examination of the record demonstrates that Ford was not guilty of any active or affirmative negligence in respect to the injuries sustained by the plaintiff. Johnson, Drake & Piper, Inc. built the platform and scaffolding. The ladder was furnished by Smith & Oby Company. Smith & Oby Company left the ladder in a precarious position on the platform. It was Johnson, Drake & Piper, Inc. workmen who caused the platform to vibrate and the ladder to fall. There is no evidence in the record showing that Ford was aware of these events. There were no employees of Ford involved in the accident nor was there any equipment of Ford in use at the time and place of the accident.
In the amended petition filed by the plaintiff against the three original defendants, there were nine specifications of negligence charged against defendant, Smith & Oby Company, the substance of which was that the Smith & Oby Company was negligent in failing to rope off or block off the area or otherwise guard the floor immediately below the opening in the scaffolding so that workers would not be injured by falling equipment, or by leaving a loose and unattached stepladder in a precarious position on the platform forty feet above the floor where men were working, thereby creating a nuisance and a great source of danger
The original defendant, Johnson, Drake & Piper, Inc. was also charged with nine specifications of negligence substantially the same as the specifications charged against Smith & Oby Company, and also that it permitted its subcontractor, Smith & Oby Company, to engage in an unsafe practice with regard to the ladder; that it constructed the overhead platform without toe boards or railing so that the ladder could fall therefrom; that it failed to warn plaintiff of his danger and failed to provide plaintiff with a safe place to work.
Ford was charged with negligence in failing to make its premises safe and in failing to exercise ordinary care because plaintiff avers that he was an invitee of Ford in the boiler house which was under control and supervision of Ford and that Ford failed to provide a safe place of employment; in failing to warn plaintiff of his danger, and that it allowed Smith & Oby Company to set the ladder on the platform without securing same.
On this appeal, defendant assigns as error:
1. That the trial court erred in refusing to grant defendant’s motion for judgment at the conclusion of plaintiff’s case;
2. In refusing to grant defendant’s motion made at the conclusion of all of the evidence;
3. In refusing to grant judgment for defendant based on plaintiff’s release of the other defendants to the original action for the sum of $30,000 on the theory that said defendants were primarily liable for plaintiff’s injuries; and
4. The trial court erred to the prejudice of the defendant by overruling Ford’s alternative motion for judgment non obstane veredicto or for a new trial.
The case was presented to the jury on the claim of the plaintiff that his “injuries were directly and proximately caused by the joint and concurring negligence of the three defendants originally in the case.” Counsel for plaintiff state in their brief that “there is no contention in this case that Ford retained such extensive and complete control over its contractors as to cause them to be considered servants of Ford or to
The trial judge appears to have accepted plaintiff’s theory because in overruling defendant’s motion for a directed verdict, he declared, in part, as follows:
“Now in this case, as the Court views it, there is evidence here of certainly prima facie caliber to warrant the question of submitting to the jury the issue of whether control has been retained or not, to whatever extent the evidence indicates.
“No. 2, there is a basis laid here for a direct duty owed by each of these defendants to the plaintiff, if as the court has indicated, the Ford Motor Company is found to have retained any control.
“At least prima iacie, we have inspections being made, supervision being made; we have evidence of the fact that work might be accelerated, or work might be slowed down. We have evidence that at one time during the course of this job a deviation or change did take place from the mode of performance as originally contracted, before, and, I believe, subsequently changed. We also have evidence in this case that the Ford Motor, under the contract, I believe, exercised the right, at least had the right to order people off of the premises, employed by some of the sub-contractors, and so forth.”
We have also examined the evidence in the record in relation to the practices of Ford in connection with the work of the independent contractors in pursuance of the terms of the contract. The record shows that the practice was to inspect the work and to supervise, schedule and coordinate the work between the several contractors and at times to direct which part of the work should be accelerated. This work of inspection, coordination, acceleration, and scheduling was performed through Ford’s architect, the resident engineer and his assistants. There is nothing in the record which shows that Ford interfered with, supervised or assumed any responsibility for the details of the work. The practice, as indicated by the record, when it became necessary to give instructions, was to give such instructions through the field representative or field superintendent of the contractor on the job. This was all in connection with the inspection, coordination, supervision, acceleration and scheduling provided for in the contract with respect to
Complaint is made by plaintiff that Ford’s representative called upon the contractors to construct the boiler house in an order different from that which some of them would otherwise have followed; in a manner that would be most convenient for Ford’s plans in putting a portion of the boiler into early operation and that Ford failed to furnish a safe place to work.
This claim came about largely because one craft worked above another in the area of the boiler house. It was testified by the same witness for plaintiff that in this type of construction such a situation is unavoidable and will occur at some phase of the construction.
We conclude that the record is clear that the accident was caused by the affirmative acts of Smith & Obey Company and Johnson, Drake & Piper, Inc. It cannot be said that Ford’s premises were inherently dangerous. Neither can it be said that any control retained by Ford, under the circumstances of this case, was the direct or proximate cause of the injuries sustained by plaintiff. Neither was Ford an insurer of the safety of the employees of contractors or subcontractors engaged in work on the premises.
Since the rendition of the judgment in the instant case, another case factually quite similar, so far as the relationship of the parties and the theory of the action are concerned, was decided by the United States Court of Appeals, Sixth District. See Ford Motor Company v. Tomlinson, 229 Fed. (2d) 873, decided February 11, 1956. Application for writ of certiorari denied October 8, 1956. In a well-reasoned and authenticated opinion (
Plaintiff in that case, in a diversity of citizenship action, had been awarded damages in the sum of $13,500 against Ford Motor Company by the United States District Court for the Northern District of Ohio, Eastern Division, for personal injuries which he sustained while working as a painter in a plant under construction on the defendant Ford’s property, the very property here involved, on Brookpark Road. In that case, as in this, Ford let a number of prime contracts for various phases of the work in the construction of a new engine plant. There, as in this case, Ford reserved in its prime contracts the power to coordinate, approve, accelerate and schedule progress. The plaintiff there, as here, was an employee of a subcontractor at the time of his injuries. Plaintiff was working on a scaffolding sixteen feet above the floor. He was injured when an employee of another subcontractor, while operating a dump truck, moved it forward in such a manner as to pull the scaffolding down, causing plaintiff to fall to the floor, resulting in the injuries that formed the basis of his complaint.
There, as in this case, plaintiff sued three defendants, including a contractor and his subcontractor and the Ford Motor Company, and, there as here, in the midst of trial, plaintiff entered into an agreement with the two defendants other than Ford to dismiss the case as to them in return for a substantial sum of money, covenanting to cease and desist from further suit, but reserving all rights against Ford. There, as here, it was not contended that liability could be imposed upon Ford because of the negligence of the contractor and subcontractor under the doctrine of respondeat superior. It was conceded that the latter were independent contractors. Ford liability, if any, was based upon its alleged independent negligence in directing that the painting and floor work proceed simultaneously without taking any steps to warn against dangers implicit in the dual operation. The court also considered the question of the responsibility of the defendant to provide a safe place to work under the Ohio Statutes and the question of the standard of conduct required of one in defendant’s position toward an employee of an independent contractor working on his premises.
In that case, the Court of Appeals held that defendant had
While the decision in the case is not binding upon this Court, the court, in our opinion, so clearly and accurately analyzed the decisions of the Ohio Courts as bearing upon a fact situation so closely similar to the facts here presented that the same conclusion with respect to the applicable law must be reached by us in the instant case. Among other cases cited and considered by the Court of Appeals of the Sixth Circuit in the review of Ohio cases are the following:
Pare v. Gemco Engineering & Mfg. Co., 95 Oh Ap 141, 118 N. E. (2d) 206.
Schwarz v. General Electric Realty Corp., supra.
Bosjnak v. Superior Sheet Steel Co., 145 Oh St 538, 61 N. E. (2d) 305.
Wellman v. East Ohio Gas Co., 160 Oh St 103, 113 N. E. (2d) 629.
Davis v. Charles Shutrump & Sons Co., 140 Oh St 89, 42 N. E. (2d) 663.
Hozian v. Crucible Steel Casting Co., 132 Oh St 453, 9 N. E. (2d) 143.
We feel that a review of these Ohio cases, so ably discussed in the opinion, would be merely repetitious and would serve no useful purpose. Of course, the decisions of the Ohio Supreme Court there cited are binding upon this court and take precedence over general text authorities.
In conclusion, suffice to say, we find no evidence in the record of joint and concurrent negligence on the part of Ford
Holding these views, we find it unnecessary to discuss the ground of error to the effect that the trial court erred to the prejudice of defendant by its refusal to grant judgment based on plaintiff’s acceptance of $30,000 in satisfaction of his claims in release of original defendants, Johnson, Drake & Piper, Inc., and Smith & Oby Company, although it is our view that if there was evidence here presented showing that Ford was jointly and concurrently liable, if liable at all, the covenant not to sue one or more of the joint tort feasors would not extinguish the rights of the plaintiff to recover against Ford in view of the express reservation of the plaintiff as to rights against Ford.
Proceeding now to render the judgment which the trial court should have rendered, the judgment for plaintiff is reversed and final judgment is rendered for the defendant.
Exceptions noted. Order see journal.