2004 Ohio 7047 | Ohio Ct. App. | 2004
{¶ 2} M/I was the owner, developer, and builder of Woodside Meadows, a residential development in Gahanna, Ohio. For this project, M/I contracted with Contract Framing to provide construction services at the Woodside Meadows site. Contract Framing subcontracted with J.M. Construction1 to perform the framing of a structure at Woodside Meadows.
{¶ 3} In July 1999, Alan L. McClary ("decedent"), an employee of J.M. Construction and a cousin of the owner, was framing the structure at Woodside Meadows when he fell two stories through an open stairwell to the concrete floor of the basement. Decedent later died as a result of injuries that he sustained.
{¶ 4} On July 27, 2001, plaintiff, individually and as administrator of the estate of decedent and as guardian and next friend of decedent's minor children, sued M/I, Contract Lumber, Contract Lumber South, Inc. ("Contract Lumber South")2
and James McClary, owner of J.M. Construction. In this complaint, plaintiff asserted six causes of action: (1) employer tort in which plaintiff alleged, among other things, that J.M. Construction failed to protect decedent from an allegedly dangerous condition; (2) common law negligence in which plaintiff alleged, among other things, that M/I, Contract Lumber, and Contract Lumber South negligently failed to provide a cover for the open stairwell and, alternatively, that M/I, Contract Lumber and Contract Lumber South's failure to warn of the alleged hazard constituted wanton and willful acts; (3) violations of regulations wherein plaintiff alleged, among other things, that M/I, Contract Lumber, and Contract Lumber South violated Sections 1926.501 and 1926.502, Title 29, C.F.R. and former Ohio Adm. Code
{¶ 5} With court approval, M/I filed a cross-claim against all co-defendants. In this cross-claim, M/I asserted two causes of action: indemnification from Contract Lumber and contribution from all co-defendants. According to M/I, Contract Lumber violated safety obligations as contained in its contract with M/I and, therefore, M/I was entitled to complete and full indemnification. Additionally, M/I contended that, assuming plaintiff proved the validity of her claims, her damages resulted, in whole or in part, from the negligence of M/I's co-defendants, thereby entitling M/I to contribution from all its codefendants.
{¶ 6} On September 3, 2002, M/I moved for summary judgment, wherein it argued that: (1) it owed no duty to decedent who was an employee of an independent contractor; (2) assuming arguendo that M/I owed a duty to decedent, M/I was not responsible for compliance with Occupational Safety and Health Administration ("OSHA") regulations; and (3) assuming arguendo that M/I owed a duty to decedent, M/I was not negligent because decedent's medical condition, i.e., diabetes, caused the incident that resulted in his death.
{¶ 7} Three days later, Contract Lumber and Contract Framing jointly moved for summary judgment, wherein these parties argued, among other things, that: (1) they did not violate a common law duty of care toward decedent; (2) they did not violate any applicable OSHA regulations and, even if they had, such violations did not constitute negligence or willful and wanton conduct; and (3) they did not violate any applicable OSHA regulations and, even if they had, such violations did not constitute negligence.
{¶ 8} Plaintiff opposed M/I's motion for summary judgment, as well as the motion for summary judgment of Contract Lumber and Contract Framing. In her memoranda in opposition, she argued that genuine issues of material fact precluded summary judgment as a matter of law, and attached an affidavit of an expert witness in support.
{¶ 9} Subsequently, in separate motions, M/I and Contract Lumber and Contract Framing moved to strike plaintiff's expert's affidavit because plaintiff failed to timely disclose her expert witness, thereby prejudicing defendants. Plaintiff did not oppose defendants' motions to strike.
{¶ 10} On June 13, 2003, the trial court issued a decision and entry wherein it: (1) granted defendants' motions to strike plaintiff's expert's affidavit; (2) granted M/I's motion for summary judgment; and (3) granted Contract Lumber and Contract Framing's motion for summary judgment.
{¶ 11} One week later, in a joint entry and by agreement of the parties, defendants' motions to strike were withdrawn. Thereafter, on June 30, 2003, the trial court rendered a decision and entry wherein it granted M/I's motion for summary judgment and also granted Contract Lumber and Contract Framing's motion for summary judgment. On July 14, 2003, pursuant to Civ.R. 41(A)(1), plaintiff dismissed without prejudice defendant J.M. Construction.
{¶ 12} Later, claiming that the trial court's entry of June 30, 2003, contained a clerical error, Contract Lumber and Contract Framing moved the trial court to correct this purported clerical error pursuant to Civ.R. 60(A). Based upon our review of the record, defendants' Civ.R. 60(A) motion remains outstanding.
{¶ 13} From the trial court's entry of June 30, 2003, plaintiff appeals and assigns the following two assignments of error:
I. The lower court erred in granting defendant M/I Schottenstein Homes, Inc.'s motion for summary judgment, because material questions of fact exist with regard to its liability for the death of plaintiff's decedent, Alan McClary.
II. The lower court erred in granting defendants contract lumber and contract framing's motions for summary judgment, because material questions of fact exist with regard to their liability for the death of plaintiff's decedent, Alan McClary.
{¶ 14} To begin, we sua sponte address whether the trial court's entry of June 30, 2003, is a final appealable order and whether this court properly has subject-matter jurisdiction of this cause.
{¶ 15} An appellate court may sua sponte raise the issue of subject-matter jurisdiction. State ex rel. White v. CuyahogaMetro. Hous. Auth. (1997),
{¶ 16} To determine whether a judgment is final, an appellate court must engage a two-step analysis. General Acc. Ins. Co.,
supra, at 21. First, an appellate court must determine whether the order is final pursuant to the requirements of R.C.
{¶ 17} Since plaintiff perfected this appeal, R.C.
{¶ 18} In Kilbreath v. Rudy (1968),
1. Section
2. Laws of a remedial nature providing rules of practice, courses of procedure, or methods of review are applicable to any proceedings conducted after the adoption of such laws.
See, also, French v. Dwiggins (1984),
{¶ 19} Later, however, in Nease v. Medical College Hosp.
(1992),
The method of determining retrospectivity of a statute was set out in Van Fossen v. Babcock Wilcox Co. (1988),
"The issue of whether a statute may constitutionally be applied retrospectively does not arise unless there has been a prior determination that the General Assembly specified that the statute so apply. Upon its face, R.C.
There must be a clear indication by the General Assembly that a statute is intended to apply retrospectively and absent such indication only prospective application may be made. VanFossen,
Id. at 398; see, also, State v. LaSalle,
{¶ 20} Here, R.C.
This section applies to and governs any action, including an appeal, that is pending in any court on July 22, 1998, and all claims filed or actions commenced on or after July 22, 1998, notwithstanding any provision of any prior statute or rule of law of this state.
{¶ 21} Accordingly, construing R.C.
{¶ 22} R.C.
An order is a final order that may be reviewed, affirmed, modified, or reversed, with or without retrial, when it is one of the following:
(1) An order that affects a substantial right in an action that in effect determines the action and prevents a judgment[.]
{¶ 23} See, also, R.C.
{¶ 24} In the instant case, the trial court's entry of June 30, 2003, which lacked Civ.R. 54(B) language, did not dispose of M/I's cross-claim against all its co-defendants.
{¶ 25} "[E]ven though all the claims or parties are not expressly adjudicated by the trial court, if the effect of the judgment as to some of the claims is to render moot the remaining claims or parties, then compliance with Civ.R. 54(B) is not required to make the judgment final and appealable." GeneralAcc. Ins. Co., supra, at 21. "[W]hen all claims and parties are adjudicated in an action, Civ.R. 54(B) language is not required to make the judgment final." Id. See, also, Wise v. Gursky
(1981),
{¶ 26} Here, M/I's cross-claims for indemnification and contribution were conditioned upon a finding of liability on the part of M/I. By granting summary judgment in favor of M/I, the effect of the trial court's order rendered moot M/I's cross-claims.
{¶ 27} Accordingly, (1) because the trial court found in favor of defendants M/I, and Contract Lumber and Contract Framing, (2) because the effect of the trial court's order rendered moot M/I's cross-claims, and (3) because plaintiff dismissed without prejudice defendant J.M. Construction from this action, we conclude that all claims and parties have been adjudged and, therefore, subject-matter jurisdiction of this cause is properly before this court. See Wise, supra.
{¶ 28} Having established that subject-matter jurisdiction lies and that this cause is properly before this court, we consider the merits of plaintiff's appeal.
{¶ 29} Appellate review of a lower court's granting of summary judgment is de novo. Mitnaul v. Fairmount PresbyterianChurch,
{¶ 30} Summary judgment is proper when a movant for summary judgment demonstrates: (1) no genuine issue of material fact exists; (2) the movant is entitled to judgment as a matter of law; and (3) reasonable minds could come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence most strongly construed in its favor. Civ.R. 56; State ex rel. Grady v. State Emp. Relations Bd. (1997),
{¶ 31} Under Civ.R. 56(C), a movant bears the initial burden of informing the trial court of the basis for the motion and identifying those portions of the record demonstrating the absence of a material fact. Dresher v. Burt (1996),
{¶ 32} Plaintiff's first assignment of error asserts the trial court erred when it granted summary judgment in favor of M/I because genuine issues of material fact exist to preclude judgment. To support her argument, plaintiff relies uponSopkovich v. Ohio Edison Co. (1998),
{¶ 33} In Sopkovich, Ohio Edison Company ("Ohio Edison") hired an independent painting contractor to paint an electric substation that Ohio Edison owned and operated. Although it was not feasible to shut off the entire flow of electricity through the substation during the period in which the painting was to occur, Ohio Edison was able to de-energize some conductors without interrupting service to its customers. Each day, before painting began, an employee of Ohio Edison would inform a representative of the independent contractor which conductors were energized and which were not. This representative of the independent contractor, in turn, would convey this information to the painters. At all relevant times, Ohio Edison retained exclusive control over which of the substation's electrical circuits would be de-energized. Also, at all relevant times, Ohio Edison retained exclusive control over the activation and deactivation of the electrical circuits.
{¶ 34} During the painting of the substation, an employee of the independent painting contractor was injured after he received a massive electrical shock while he descended from the substation after completing an assigned task. This employee later sued Ohio Edison. The trial court granted summary judgment in favor of Ohio Edison. On appeal, the court of appeals found that the trial court correctly concluded that Ohio Edison had not directed or controlled the activities of the paint crew. However, the appellate court found that a genuine issue of material fact existed as to whether Ohio Edison had created a duty of care by retaining and exerting control over a critical aspect of the independent contractor's employee's working environment. Therefore, the appellate court reversed and remanded the matter to the trial court. See Lexie v. Ohio Edison Co. (Dec. 13, 1996), Trumbull App. No. 96-T-5384. Later, the matter was heard before the Supreme Court of Ohio after its determination that a conflict existed. See Lexie v. Ohio Edison Co. (1997),
{¶ 35} After reviewing the court's prior decisions involving the duties and responsibilities owed by a party who engages the services of an independent contractor to perform an inherently dangerous task, Sopkovich, at 636-642, the Sopkovich court stated, at 643, that "active participation giving rise to a duty of care may be found to exist where a property owner either directs or exercises control over the work activities of the independent contractor's employees, or where the owner retains or exercises control over a critical variable in the workplace." See, also, id. at 635.
{¶ 36} Applying this standard, the Sopkovich court found that, while Ohio Edison did not direct or control the work activities of the painting contractor or the job activities of the individual painters, id. at 643, Ohio Edison did retain exclusive control over a critical variable, namely, the de-activation of specific electrical conductors in the work area. Id. Agreeing with the appellate court, the Sopkovich court found that a question remained as to whether Ohio Edison owed a duty of care to the injured painter stemming from its retention and exercise of control. Id. The Sopkovich court noted, however, that any duty that Ohio Edison may have owed to the injured painter was not absolute. Id. The Sopkovich court explained that "Ohio Edison's liability (if any) may only be predicated on a breach of a specific duty that Ohio Edison undertook to perform, i.e., the tasks of deelectrification and communication." Id. Accordingly, the Sopkovich court affirmed the judgment of the appellate court.
{¶ 37} Applying Sopkovich to the instant case, the issues resolve to: (1) whether M/I, as the property owner, either directed or exercised control over the work activities of J.M. Construction's employees; or (2) whether M/I, as the property owner, retained or exercised control over a critical variable in the workplace.
{¶ 38} Based upon this record, we find no evidence that M/I either granted or denied permission to any aspect of the job activities of the independent contractor. At most, M/I exercised a general supervisory role over construction to ensure that construction was properly completed.4 Construing this evidence in a light most favorable to plaintiff, we find that M/I did not direct or exercise control over the work activities of J.M. Construction's employees.
{¶ 39} However, Sopkovich also directs us to consider whether M/I, as the property owner, retained or exercised control over a critical variable in the workplace. See id. at 643. Here, the critical variable at issue is control over the open stairwell through which decedent fell.
{¶ 40} According to the testimony of James McClary, M/I employed Steve Anderson, whose duties included performing sporadic safety audits and checking construction sites to determine whether these sites complied with OSHA regulations.5 However, while Anderson's duties included the performance of sporadic safety audits, James McClary testified that Anderson made no safety audit of the particular jobsite where decedent was injured.6 Furthermore, according to James McClary, prior to decedent's fall, the M/I field supervisor did not speak with him about the particular jobsite where decedent fell.7
{¶ 41} In Sopkovich, the court observed that any duty that Ohio Edison may have owed to the injured painter was not absolute. Id. Similarly, here any duty that M/I may have owed to decedent was not absolute.
{¶ 42} In this case, because M/I retained the right to perform safety audits, M/I conceivably may have retained some attenuated control over the construction site where decedent fell. However, according to the testimony of James McClary, no representative of M/I actually performed a safety audit of the work area where decedent was injured. Thus, M/I did not exercise control over a critical variable in the workplace and, by implication, it did not assume any obligation toward decedent.
{¶ 43} Because M/I conceivably retained some attenuated control over the work area through safety audits but did not exercise control over a critical variable in the workplace, we conclude this case is factually distinguishable from Sopkovich where Ohio Edison retained and exercised exclusive control over the de-activation of specific electrical conductors in the work area where the independent contractor's employee was injured. Id. at 643.
{¶ 44} Furthermore, we cannot conclude that unauthenticated and uncertified copies of safety correspondence, which purportedly were between Steve Anderson and a production manager for M/I, and which plaintiff attached to her memoranda in opposition, create a genuine issue of material fact. See Civ.R. 56(E); State ex rel. Shumway v. State Teachers Retirement Bd.
(1996),
{¶ 45} Accordingly, construing the evidence in plaintiff's favor, we cannot conclude that M/I undertook any duty toward decedent.
{¶ 46} Finding that M/I did not assume a duty toward decedent, we find that plaintiff's common law negligence claim against M/I must fail, as well as her claim that M/I's failure to warn decedent of the open stairwell constituted wanton and willful misconduct. See McCoy v. Engle (1987),
{¶ 47} Because M/I failed to cover the open stairwell, plaintiff also alleged that it violated OSHA regulations as contained in Sections 1926.501 and 1926.502, Title 29, C.F.R., and Ohio safety requirements related to construction as contained in former Ohio Adm. Code
{¶ 48} However, even assuming that violations of these administrative regulations and rules create an independent cause of action, plaintiff's claim fails as a matter of law. Section 1926.501(a)(1), Title 29, C.F.R., provides that "[t]his section sets forth requirements for employers to provide fall protection systems. All fall protection required by this section shall conform to the criteria set forth in sec. 1926.502 of this subpart." (Emphasis added.) See, also, Section 1926.502(a)(2), Title 29, C.F.R. (providing that "[e] mployers shall provide and install all fall protection systems required by this subpart for an employee") (emphasis added); Section 1926.500, Title 29, C.F.R. ("employer" not defined in definitions applicable to this subpart).
{¶ 49} "Employer" may be defined as "[a] person who controls and directs a worker under an express or implied contract of hire and who pays the worker's salary or wages." Black's Law Dictionary (8 Ed. 2004) 565. Here, it is undisputed that J.M. Construction, not M/I, was decedent's employer. Therefore, Sections 1926.501 and 1926.502, Title 29, C.F.R., on their face, do not apply to M/I. Even construing the evidence in plaintiff's favor, plaintiff's allegation that M/I violated Sections 1926.501 and 1926.502, Title 29, C.F.R., thereby resulting in liability on the part of M/I, is not well-taken.
{¶ 50} Former Ohio Adm. Code
{¶ 51} M/I, however, was not decedent's employer. Therefore, on its face, former Ohio Adm. Code
{¶ 52} Plaintiff also alleged that M/I violated R.C.
{¶ 53} R.C.
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.
{¶ 54} Additionally, "R.C.
{¶ 55} According to R.C.
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.
{¶ 56} In general, R.C.
{¶ 57} In Eicher, Thomas Eicher, an employee of an independent contractor that had been hired to perform construction at a steel plant, sued the steel plant, alleging that he had suffered a heart attack as a result of the steel plant's negligence and failure to provide a safe work place. At the close of Eicher's evidence, the trial court granted a defense motion for a directed verdict. An appellate court affirmed. In affirming the appellate court, the Eicher court held that "[t]he duty to frequenters of places of employment, set forth in R.C.
{¶ 58} A construction site is an inherently dangerous setting, Bond v. Howard Corp. (1995),
{¶ 59} Here, prior to his fall at the construction site, decedent had been employed in the construction field since he was approximately 16 years old11 and had worked as a framer at that particular residential site for approximately three days.12 Moreover, according to Tommy McClary, decedent's brother, during the eight-year period that he worked with decedent, he had observed decedent lose his balance approximately 15 to 20 times and observed him fall off a wall a "handful" of times.13 Construing this evidence most strongly in plaintiff's favor, we conclude that reasonable minds could come to but one conclusion, namely that decedent had constructive notice of the hazards that were inherently present at the construction jobsite.
{¶ 60} Accordingly, construing Eicher, assuming that decedent was a "frequenter" under R.C.
{¶ 61} Plaintiff has also alleged that she and decedent's minor children have suffered a loss of consortium for which M/I is liable.
{¶ 62} Under Ohio law, "[a] wife has a cause of action for damages for the loss of consortium of her husband against a person who negligently injures her husband, which injuries deprive her of the consortium of her husband." Clouston v.Remlinger Oldsmobile Cadillac, Inc. (1970),
{¶ 63} However, "a claim for loss of consortium is derivative in that the claim is dependent upon the defendant's having committed a legally cognizable tort upon the spouse who suffers bodily injury." Bowen v. Kil-Kare, Inc. (1992),
{¶ 64} As discussed above, we have already concluded that, under the facts and circumstances of this case, M/I, as a matter of law, owed no duty to decedent. Absent a legal duty, we find that a legally cognizable tort against M/I does not lie and, therefore, as a matter of law, plaintiff's loss of consortium claims fail.
{¶ 65} In addition to loss of consortium, plaintiff also alleged that M/I was liable based upon a claim of wrongful death.
{¶ 66} A wrongful death action is an independent cause of action, Thompson v. Wing (1994),
{¶ 67} Here, as discussed above, we have already concluded that M/I, as a matter of law, did not owe a duty to decedent. Therefore, absent a duty by M/I, plaintiff's wrongful death claims fail.
{¶ 68} Accordingly, for the foregoing reasons, we overrule plaintiff's first assignment of error.
{¶ 69} Plaintiff's second assignment of error asserts that the trial court erred when it granted summary judgment in favor of Contract Lumber and Contract Framing because genuine issues of material fact exist to preclude judgment.
{¶ 70} Based upon the evidence in the record, we find the trial court properly found that Contract Lumber was entitled to summary judgment. Here, Contract Lumber was the supplier of lumber and material for the construction project at which decedent was injured.15 Plaintiff has not alleged, nor is there evidence in the record to support a finding that, defective materials proximately caused decedent's death. Neither is there evidence that Contract Lumber actively participated in the work activities of J.M. Construction, the independent subcontractor.
{¶ 71} As to Contract Framing, to support her argument that genuine issues of material fact should preclude summary judgment in favor of Contract Framing, plaintiff, in part, relies uponSopkovich, supra.
{¶ 72} Sopkovich, however, is distinguishable. Sopkovich concerned a property owner's liability, not the liability of a contractor. Id. at 635, 643. Therefore, Sopkovich, as applied to Contract Framing, is inapposite.
{¶ 73} Rather than Sopkovich, we find that Cafferkey v.Turner Constr. Co. (1986),
{¶ 74} In Cafferkey, two employees of an independent subcontractor were injured during an explosion at a construction site and later died of these injuries. Separate tort actions were brought against the general contractor and the independent subcontractor. In affirming the appellate court's judgment, theCafferkey court construed Hirschbach v. Cincinnati Gas Elec.Co. (1983),
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.
{¶ 75} Focusing on a general contractor's control over the work activities of the independent subcontractor, the Cafferkey court observed that "[the general contractor] may have known about some of [the subcontractor's] activities, but that knowledge does not constitute `actual participation' in those activities within the Hirschbach rule." Id. at 112. TheCafferkey court further found that a concern for safety did not constitute the kind of active participation in the subcontractor's work that was legally required to create a duty of care to the subcontractor's employees. Id. at 113.
{¶ 76} The Cafferkey court explained that while the general contractor retained the ability to monitor and coordinate the activities of all subcontractors to ensure compliance with the architect's specifications, the various contractual rights reserved by the general contractor did not empower the general contractor to control the means or manner of the subcontractor's performance. Id.
{¶ 77} Accordingly, the Cafferkey court held that "[a] general contractor who has not actively participated in the subcontractor's work, does not, merely by virtue of its supervisory capacity, owe a duty of care to employees of the subcontractor who are injured while engaged in inherently dangerous work." Id. at syllabus. See, also, Sopkovich, at 639 (discussion of Cafferkey).
{¶ 78} Later, in Bond, supra, the Supreme Court of Ohio refined its holding in Cafferkey and "cut a definitive line between those situations in which a general contractor can be said to have `actively participated' in the work of an independent subcontractor, and those situations in which a general contractor merely exercises a general supervisory role over the construction project." Sopkovich, at 640. In Bond, the court held in the syllabus, as follows:
For purposes of establishing liability to the injured employee of an independent subcontractor, "actively participated" means that the general contractor directed the activity which resulted in the injury and/or gave or denied permission for the critical acts that led to the employee's injury, rather than merely exercising a general supervisory role over the project.
{¶ 79} In Bond, the Supreme Court considered, among other things, whether a general contractor owed a duty of care to an employee of a subcontractor who was injured at a construction site when he fell through an unguarded stairwell opening. Arguing that summary judgment was improperly granted in favor of the general contractor, the appellants relied upon portions of a contract between General Cinema Corporation, the entity that hired the general contractor, and the general contractor, and portions of a contract between the general contractor and the subcontractor. Appellants asserted that the contract between General Cinema and the general contractor required the general contractor to comply with and enforce any applicable safety laws, rules or regulations. Appellants also contended that, according to the contract between the general contractor and its subcontractors, the subcontractors were required to obtain permission and special instructions from the general contractor prior to beginning work in any area on the jobsite, and that the general contractor had a right to remove any equipment and personnel that created an unsafe condition at the site. Id. at 334.
{¶ 80} In its analysis, the Bond court examined prior relevant decisions in Wellman v. E. Ohio Gas Co. (1953),
{¶ 81} In Burnep, supra, this court found that the facts of that case fell "squarely under Bond" when it affirmed summary judgment in favor of a general contractor. In that case, an independent contractor was injured when he fell through a skylight while working on a roof. On appeal, the independent contractor asserted the trial court erred because the general contractor exercised exclusive control over the working environment and the trial court failed to properly applySopkovich, supra. The Burnep court found that the general contractor did not direct, control, or participate in the actual roof-removal work of the independent contractor. The Burnep court concluded that the general contractor's agreement with the property owner to retain control over safety issues at the jobsite did not rise to the level of active participation as defined in Hirschbach, Cafferkey, and Bond. The Burnep court also concluded that Sopkovich was manifestly distinguishable.
{¶ 82} Just as the Burnep court found a "remarkable symmetry of facts" between Bond and the facts in Burnep, we find a remarkable similarity between the facts of this case and those in Bond.
{¶ 83} Here, just as in Bond, Contract Framing retained general supervisory capacity over the construction project and it retained control over safety policies and procedures.17 However, "[a] general contractor's retention of the authority to monitor and coordinate activities of the subcontractors and the retention of control over safety policies and procedures do not rise to the level of active participation, thereby extending a duty of care from a general contractor to a subcontractor's employees." Bond, at 336-337. Even construing the evidence in plaintiff's favor, we find no evidence that Contract Framing directed the activity which resulted in decedent's injuries or that Contract Framing gave or denied permission for critical acts that led to his injuries. Therefore, applying Bond, we conclude that, as a matter of law, Contract Framing owed no duty to decedent.
{¶ 84} Finding that Contract Framing did not assume a duty to decedent, we find that, as a matter of law, plaintiff's common law negligence claim against Contract Framing, as well as plaintiff's claim that Contract Framing's failure to warn decedent of the open stairwell constituted wanton and willful misconduct, must fail.
{¶ 85} Plaintiff also claims that Contract Framing violated Sections 1926.501 and 1926.502, Title 29, C.F.R., and former Ohio Adm. Code
{¶ 86} Neither can we find that liability attaches to Contract Framing based upon the "frequenter statutes" as codified in R.C.
{¶ 87} R.C.
{¶ 88} Here, there is no evidence that Contract Framing participated in the activity that caused decedent's injuries, neither is there evidence that Contract Framing directed the activities of J.M. Construction or its employees. Accordingly, plaintiff's claim that Contract Framing is liable pursuant to R.C.
{¶ 89} Furthermore, having concluded that, as a matter of law, a legally cognizable tort against Contract Framing does not lie, we therefore must also conclude that plaintiff's loss of consortium claims and wrongful death claims against Contract Framing must fail.
{¶ 90} Therefore, for the foregoing reasons, plaintiff's second assignment of error is overruled.
{¶ 91} For the foregoing reasons, both of plaintiff's assignments of error are overuled, and the judgment of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
Lazarus, P.J., and Brown, J., concur.