MICHAELS, APPELLANT, v. FORD MOTOR COMPANY, APPELLEE.
No. 94-524
Supreme Court of Ohio
July 12, 1995
72 Ohio St.3d 475 | 1995-Ohio-142
Submitted April 25, 1995
APPEAL from the Court of Appeals for Lorain County, No. 93CA005603.
{¶ 1} To construct a paint building at its truck plant in Avon Lake, Ohio, appellee Ford Motor Company hired Lathrop Contracting as the general contractor. Doane Electric was an electrical subcontractor on the construction site. While at the construction site, Russell Michaels, an employee of Doane Electric, sustained injuries after falling through a hole that Lathrop employees had cut in the second floor. Michaels died the next day.
{¶ 2} John T. Hoey, Jr., a Ford employee, had instructed William Haase, Lathrop‘s assistant superintendent, to cut holes in the floor pursuant to specifications in the construction contract between Lathrop and Ford. Thinking that the holes would not be utilized immediately and that floor openings were a safety concern, Haase had objected to cutting the holes at that time. However, there was evidence that the holes were needed so that paint boxes could be designed and fabricated to fit inside the holes. Responding to Haase‘s concerns, Hoey had stated, “[Y]ou‘ve got a job to do friend, you‘ve got a contract, you cut the holes and you cover them.” In point of fact, pursuant to its contract with Ford, Lathrop was
{¶ 3} After Lathrop employees cut the hole through which Michaels would later fall, they covered the hole with a piece of plywood without securing the plywood to the floor. No one from Ford told any Lathrop employee how to cover any of the holes, including the one through which Michaels fell.
{¶ 4} On February 21, 1990, a foreman of Doane Electric instructed Michaels, Daniel Edgar, and another Doane Electric employee to clear an area on the second floor, where they were going to install an electrical panel. While they were cleaning debris from the area, Edgar moved the loose piece of plywood covering the hole in the floor that Lathrop employees had cut. Edgar warned Michaels, who had his back to Edgar, not to move the piece of plywood because it was covering a hole. About fifteen minutes later, Edgar discovered that Michaels had fallen through the hole to the floor below. No one had witnessed the fall. The day after the accident occurred, Lathrop employees secured with screws the piece of plywood covering the hole.
{¶ 5} Pursuant to
{¶ 6} Affirming the judgment of the trial court, the court of appeals held that Ford did not owe a duty of care to Michaels. The court reasoned that
{¶ 7} The cause is now before this court pursuant to the allowance of a discretionary appeal.
Spangenberg, Shibley, Traci, Lancione & Liber, John D. Liber and Justin F. Madden, for appellant.
Thompson, Hine & Flory, S. Stuart Eilers, Timothy J. Coughlin and Michael E. Smith, for appellee.
WRIGHT, J.
{¶ 8} The issue in this case is whether an owner of a construction site, by virtue of directing a general contractor to perform a task required by contract specifications, owes a duty of care under
{¶ 9}
{¶ 10} The question in this case is whether Ford was an “employer” as to Michaels within the meaning of the frequenter statutes. Ford owed Michaels a duty to provide a safe place of employment only if it was an “employer” under the frequenter statutes.2 If Ford was not an “employer,” the frequenter statutes simply do not apply. See Comerford v. Jones & Laughlin Steel Corp. (1959), 170 Ohio St. 117, 10 O.O.2d 11, 162 N.E.2d 861, syllabus.
{¶ 11}
{¶ 12} On a case-by-case basis, this court has articulated the legal principles governing whether an owner (or a general contractor)3 owes a duty of care under the frequenter statutes because it has custody or control of the employee, employment, or place of employment. In Wellman v. E. Ohio Gas Co. (1953), 160 Ohio St. 103, 51 O.O. 27, 113 N.E.2d 629, paragraph one of the syllabus, we held: “Where an independent contractor undertakes to do work for another in the very doing of which there are elements of real or potential danger and one of such contractor‘s employees is injured as an incident to the performance of the work, no liability for such injury ordinarily attaches to the one who engaged the services of the independent contractor.”
{¶ 13} In Hirschbach v. Cincinnati Gas & Elec. Co. (1983), 6 Ohio St.3d 206, 6 OBR 259, 452 N.E.2d 326, syllabus, we created an exception to the general rule: “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.” (Emphasis added.) In Hirschbach, we concluded that the jury could reasonably find the owner liable for the death of an independent contractor‘s employee because the owner “interfered with the mode of the job operation,” ”actually participated in the job operation by dictating the manner and mode in which the winching phase of the job was to be performed,” and “had sole control over the safety features necessary to eliminate the hazard.” (Emphasis added.) Id. at 208, 6 OBR at 261, 452 N.E.2d at 329.
{¶ 14} In Cafferkey v. Turner Constr. Co. (1986), 21 Ohio St.3d 110, 21 OBR 416, 488 N.E.2d 189, this court refined the Hirschbach exception and held in the syllabus 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.”4 (Emphasis added.) In Cafferkey, we concluded that the general contractor did not owe a duty of care to two employees of a
{¶ 15} Most recently, in Bond v. Howard Corp. (1995), 72 Ohio St.3d 332, 650 N.E.2d 416, syllabus, this court held that the term “actively participated” means “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.” We explained that the distinguishing factor between Wellman and Hirschbach was that “the party who hired the independent contractor in Wellman had inspectors at the job site, but only to ensure that the job was completed according to specifications.” Id. at 335, 650 N.E.2d at 419. In Bond, we also emphasized that a party‘s “retention of the authority to monitor and coordinate activities” does not constitute “active participation.” Id. at 337, 650 N.E.2d at 420.
{¶ 16} In the case before us, Ford exercised its proper supervisory role by monitoring work progress at the construction site, interpreting plans and specifications, and ensuring that construction was completed according to required specifications. As part of its supervision, Ford directed Lathrop, the general contractor, to cut floor openings as required by contract specifications. Applying the Bond definition of “actively participated,” the “activity which resulted in the injury” to Michaels and the “critical act” that led to Michaels’ injury was the failure to adequately safeguard the hole through which Michaels fell. Ford neither directed Lathrop as to the manner in which the latter should safeguard the floor opening nor gave or denied permission with regard to the way in which the hole was covered. Much to the contrary, Ford retained no custody or control over the area where Lathrop cut the hole through which Michaels subsequently fell. Nor did Ford retain
{¶ 17} “Supervision of a construction job, i.e., coordinating work and directing contractors to perform tasks in accordance with contract specifications, has never constituted ‘active participation’ in the work of an independent contractor. The very nature of the construction business requires a general contractor or the owner of a construction site to ‘supervise’ a construction job.” Bond, at 339, 650 N.E.2d at 422 (Wright, J., concurring). An owner of a construction site who merely directs an independent contractor to perform a task required by contract specifications but does not retain control over the means or manner in which that task is performed does not owe a duty of care to an employee of a subcontractor who is subsequently injured as a result of the other contractor‘s performance of the task in an unsafe manner.
{¶ 18} As a matter of law, Ford owed no duty of care to Michaels under the frequenter statutes. Accordingly, the trial court and the court of appeals properly concluded that Ford was entitled to summary judgment.
Judgment affirmed.
MOYER, C.J., and COOK, J., concur.
F.E. SWEENEY, J., concurs in judgment only.
DOUGLAS, RESNICK and PFEIFER, JJ., dissent.