477 N.E.2d 1160 | Ohio Ct. App. | 1984
Lead Opinion
This case comes before this court on appeal from judgment of the Lucas County Court of Common Pleas.
This case arose from the following facts and circumstances. On or about October 16, 1978, appellee Mid-States Terminal, Inc. (hereinafter referred to as "Mid-States") entered into a written contract with appellee Stout Construction Company (hereinafter referred to as "Stout") for the construction of grain silos on Mid-States' premises located on Miami Street in the city of Toledo, Ohio. On or about December 27, 1979, one of Stout's employees, Lee Walker, Jr., met his death, and another, Robert Gabriel, sustained permanently disabling injuries as a result of a construction accident involving a material hoist.
The material hoist was being used at the time of the accident to lift the two employees to a level where they could remove wood forms which had been used in the construction of the silos. *20 Although Stout could have rented an Underwriters Laboratory-approved personnel hoist for this purpose, it chose instead to modify a material hoist by splicing the cable to permit the hoist to reach the necessary height of two hundred eighty-five feet. According to the testimony of the president of Stout, the company's safety policies prohibited both the use of material hoists for personnel and the splicing of cables in either material or personnel hoists.
While the material hoist was being used to lift the two employees, the point at which the cables had been spliced reached a small opening in the concrete at the top of the silo through which the cable passed. Although the opening was large enough to permit the cable to flow freely, it was not large enough to permit the clips attached to the spliced point to pass through. Accordingly, as the clips reached the opening, the cable jammed, tensed and broke, and the hoist fell approximately one hundred forty-five feet to the ground.
Subsequently, appellants, Carolyn J. Walker, administratrix of the estate of Lee Walker, Jr., and Robert Gabriel, instituted this cause of action in the Lucas County Court of Common Pleas against appellees Mid-States and Stout. The trial court granted summary judgment in favor of Mid-States and Stout,1 and appellants thereafter instituted this appeal, presenting the following assignments of error:
"I. The trial court erred in holding that as a matter of law the appellee Mid-States Terminal, as owner of the premises, owed no duty to the appellants.
"II. The trial court erred in granting summary judgment for defendant Stout Construction Company and against appellants since the worker's [sic] compensation law does not bar the pursuit of a civil remedy by an employee or his estate when the injury and/or death of the employee is either the result of an employer's act in a dual or second capacity, separate and apart from its status as an employer, or the result of an intentional tort committed by the employer."
In their first assignment of error, appellants contend that the trial court erred in granting summary judgment in favor of Mid-States on the ground that Mid-States owed no duty of care to appellants. In support of their assignment of error, appellants argue that Mid-States had a duty to furnish appellants with a safe place of employment pursuant to 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."
"No employer shall require, permit, or suffer any employee to go or be in any employment or place of employment *21 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 orother person shall construct, occupy, or maintain any place ofemployment that is not safe." (Emphasis added.)
Thus, pursuant to R.C.
In the case sub judice, however, appellants were injured as a result of the misuse of equipment brought onto the premises by their employer, Stout. Appellants contend, however, that Mid-States retained such control over the construction project by virtue of the terms of its contract with Stout and that the provisions of R.C.
In support of their contention, appellants urge our consideration of the Ohio Supreme Court's recent decision inHirschbach, supra, in which the court held in the syllabus that:
"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."
In Hirschbach, the defendant, through its inspector, actually directed the placement of a winch, in violation of safety standards and over the objections of the employees of the independent contractor, which resulted in the death of one of the employees. Although appellants do not contend that Mid-States was directly involved in the decision to use the modified material hoist for personnel, appellants argue thet Mid-States reserved control over the premises and the methods of construction in sections
"
"In an emergency or threatened emergency affecting or liable to affect the safety of life or property, either party shall have the right and authority to stop the work and/or order and directsuch changes therein or in the methods, plant and tools used bythe Contractor or Owner, as necessary in the circumstances." *22
"
"All plant to be provided, work to be performed, and material and equipment to be supplied pursuant to the contract shall atall reasonable times and on reasonable notice be subject toinspection and testing by Owner or its inspector. Any special test which Owner requires are set forth in the Specifications. The Contractor shall cooperate with Owner or inspector and shall make reasonably available every facility which the Contractor possesses for inspecting and testing." (Emphasis added.)
Additionally, appellants note that one of Mid-States' employees, Stan Kobylak, periodically visited and inspected the construction site. Mid-States contends, however, that Kobylak never "participated" in any job operation but merely inspected the construction site to determine whether the work was being performed in accordance with the specifications in the contract and that Mid-States, therefore, could not be held responsible for appellants' injuries.
A careful review of the decision reveals that, in accordance with previous case law, the determination as to the applicability of the Ohio "frequenter" statutes (R.C.
"There is no question that CG E [the defendant] had custody and control over the premises where the work was being performed. Hence the Ohio `frequenter' statutes are applicable here."
Further, see R.C.
Considering the foregoing, we find that sufficient evidence was presented to establish a retention of custody and control over the construction site by Mid-States and to raise an issue of fact for the jury as to whether, by the reasonable exercise of the rights retained by Mid-States by virtue of its contract with Stout, Mid-States could have discovered and eliminated the hazard which caused the tragic death of one employee and the permanent disablement of another.
For the foregoing reasons, we find that the trial court erred in granting summary judgment in favor of Mid-States and, therefore, find appellants' first assignment of error well-taken.
In their second assignment of error, appellants contend that the trial court erred in determining that Stout was immune from suit pursuant to the Workers' Compensation Law. In support of their contention, appellants raise both the intentional tort and dual capacity exceptions to the general rule of employer immunity from suit under the Workers' Compensation Law.
Section
"For the purpose of providing compensation to workmen and their dependents, for death, injuries or occupational disease, occasioned in the course of such workmen's employment, laws may be passed establishing a state fund to be created by compulsory contribution thereto by employers, and administered by the state, determining the terms and conditions upon which payment shall be made therefrom. Such compensation shall be in lieu of all other rights to compensation, or damages, for such death, injuries, or occupational disease, and any employer who pays the premium or compensation provided by *23 law, passed in accordance herewith, shall not be liable to respond in damages at common law or by statute for such death, injuries or occupational disease. * * *"
Chapter 4123 of the Ohio Revised Code was enacted pursuant to the foregoing constitutional authority and provides the legislative scheme for the workers' compensation system. With regard to employer immunity from suit, R.C.
"Employers who comply with section
Thus, complying employers are generally immune from suit for any injury arising out of the course of employment. InBlankenship v. Cincinnati Milacron Chemicals (1982),
"An employee is not precluded by Section
Appellants contend that the conduct of Stout's supervisory personnel in using a material hoist for personnel and in splicing the cable, both in violation of Stout's safety policies, constituted an intentional tort as contemplated by Blankenship,supra. Stout contends, however, that said conduct did not rise to the level of intentional tort for the reason that said conduct was neither willful nor wanton, the evidence presented not having indicated that Stout had actual knowledge of the hazard or had willfully withheld any information regarding the hazard from its employees.
Although the Ohio Supreme Court does not specifically define "intentional tort" in Blankenship, supra, the cases cited therein distinguish injuries arising from accidents which are unforeseen, unexpected and unusual and those arising from willful misconduct. See Blankenship, supra, at 612-614, footnotes 7-11.
Further, negligence is distinguished from wanton or willful misconduct in 39 Ohio Jurisprudence 2d (1959) 521-523, Negligence, Section 25, as follows:
"* * * Negligence is synonymous with heedlessness,carelessness, thoughtlessness, disregard, inattention,inadvertence, remissness, and oversight; it does not necessarily involve the conscious purpose to do a wrongful act, or to omit the performance of a duty, and intent, purpose, or design need not be proven. Wilfulness, on the other hand, implies design, set purpose, intention, deliberation. Accordingly, whenever an exercise of the will is exerted, there must be an end of inadvertence, and to say that an injury resulted from the negligent and wilful conduct of another is to affirm that the same act is the result of two opposite mental conditions, heedlessness, and purpose or design. A defendant might be guilty of the grossest negligence, and his acts might be fraught with the direst consequences, without having those elements of intent and purpose necessary to constitute wilful *24 tort. Negligence and wanton misconduct are independent; and negligence, however gross, is not synonymous with wanton misconduct.
"Knowledge of existing conditions is essential to establish wanton and wilful misconduct. It is, of course, not necessary that the defendant should have knowledge of the peril of any particular person, or that he should have intended to do injury to some particular person, but, on the other hand, any generalknowledge or information that other persons are placed in aposition of peril by his reckless and heedless conduct wouldamount to a legal wilful tort. This doctrine is based upon the well-known principle that a person is presumed to intend the natural and logical consequences of his acts. Wilful tort also involves the element of malice or ill will, although it is not necessary to show actual malice or ill will. It may be shown byindifference to the safety of others, after knowledge of their danger, or failure after such knowledge to use ordinary care to avoid injury." (Emphasis added. Citations omitted.)
Applying the foregoing to the facts in the case now before us, we find that the evidence presented raised an issue regarding the intentional tort exception to the general rule of employer immunity under the Workers' Compensation Law in that the evidence tended to show conduct on the part of Stout, through its supervisory personnel, in modifying and using a material hoist for personnel, which was willfully violative of Stout's safety policies and in wanton disregard of appellants' safety.
To hold otherwise would encourage employers, so disposed, to sacrifice the safety of their employees on the altar of expedience and profit by permitting the knowing violation of safety standards to be "costed out" under the workers' compensation system.
For those reasons, we find that the trial court erred in granting summary judgment in favor of Stout. However, it appears from our review of the record that additional evidence regarding this issue may yet be introduced. We would, therefore, decline to enter summary judgment in favor of appellants, in accordance with App. R. 12(B) and the decision of the Ohio Supreme Court in Houk
v. Ross (1973),
Stout further contends, however, that appellants' cause of action is barred by their acceptance of benefits under the Workers' Compensation Law on the ground that the remedies are mutually exclusive. In Delamotte v. Midland Ross (1978),
"1. An employee's remedy under the Workers' Compensation Actis not exclusive, and he may resort to a civil action in tort when he has been injured by an employer's intentional or malicious tort." (Emphasis added.)
Further, in reaching its decision in Blankenship, supra, at 613-615, the Ohio Supreme Court reasoned as follows:
"In this regard, this court further agrees with the Delamotte
court that where an employee asserts in his complaint a claim for damages based on an *25
intentional tort, `* * * the substance of the claim is not an "injury * * * received or contracted by any employee in the course of or arising out of his employment" within the meaning of R.C.
"This holding not only comports with constitutional and statutory requirements, but it is also consistent with the legislative goals which underlie the Workers' Compensation Act.
"The workers' compensation system is based on the premise that an employer is protected from a suit for negligence in exchange for compliance with the Workers' Compensation Act. The Act operates as a balance of mutual compromise between the interests of the employer and the employee whereby employees relinquish their common law remedy and accept lower benefit levels coupled with the greater assurance of recovery and employers give up their common law defenses and are protected from unlimited liability. But the protection afforded by the Act has always beenfor negligent acts and not for intentional tortious conduct. Indeed, workers' compensation Acts were designed to improve the plight of the injured worker, and to hold that intentional tortsare covered under the Act would be tantamount to encouraging suchconduct, and this clearly cannot be reconciled with the motivating spirit and purpose of the Act.
"It must also be remembered that the compensation scheme was specifically designed to provide less than full compensation for injured employees. Damages such as pain and suffering and loss ofservices on the part of a spouse are unavailable remedies to theinjured employee. Punitive damages cannot be obtained. Yet, these damages are available to individuals who have been injured by intentional tortious conduct of third parties, and there is no legitimate reason why an employer should be able to escape from such damages simply because he committed an intentional tort against his employee.
"In addition, one of the avowed purposes of the Act is to promote a safe and injury-free work environment. (R.C.
Upon careful consideration of the foregoing language, we find that the Ohio Supreme Court drew the distinction regarding intentional tort on the basis of whether the employer's conduct arose out of the employment and not whether the injury occurred in the course of employment as to the employee. Thus, the employee would not be precluded from pursuing his remedy under the Workers' Compensation Law in that the injury arose in the course of his employment. Further, see Blankenship, supra, at 615, wherein the Ohio Supreme Court held that: "* * * the facts will demonstrate whether an intentional tort occurred or whether the injuries received by appellants were inccurred *26 in the course of and arising from appellants' employment such that the worker's compensation remedy would be exclusive."
Appellants further contend that Stout, by reason of its manufacture of the materials hoist in question, was not immune from suit pursuant to the Workers' Compensation Law. In Guy v.Arthur H. Thomas Co. (1978),
"Where an employer-hospital occupies a second or dual capacity, as an administering hospital, that confers upon it traditional obligations unrelated to and independent of those imposed upon it as an employer, an employee injured, as a result of a violation of the obligations springing from employer-hospital's second or dual capacity, is not barred by either Section
Our review of the record reveals that Stout manufacturedpersonnel elevators for sale to the public but did not market material hoists. The record further indicates that the material hoist in issue was constructed and modified by and solely for use of Stout's employees.
Stout contends that the foregoing facts preclude application of the dual-capacity doctrine in this case for the reason that the particular type of hoist used was not commercially marketed. We do not agree. Appellants herein were injured as a result of a defective elevator manufactured by their employer who manufactured elevators for commercial sale. It would be ludicrous to hold that Stout could be shielded from liability as a manufacturer solely on the basis that the particular model of elevator used for its employees was not one that Stout commercially marketed. Further, such a decision in this case would, in fact, reward Stout for violating its own safety policy prohibiting the use of material hoists for personnel. Cf.Simpkins v. Delco Moraine Div. (1981),
For the foregoing reasons, we find appellants' second assignment of error well-taken.
In summary, we find as follows:
1. That the trial court erred in granting summary judgment in favor of Mid-States for the reason that sufficient evidence was presented to establish a retention of custody and control over the construction site by Mid-States so as to impose a duty of care on the part of Mid-States to appellants, pursuant to the Ohio "frequenter" statutes, and to raise an issue of fact for the jury as to whether Mid-States failed to exercise reasonable care in fulfilling that duty.
We, therefore, reverse the trial court's judgment, granting summary judgment in favor of Mid-States, and remand for further proceedings in accordance with law.
2. That the trial court erred in granting summary judgment in favor of Stout for the reason that the evidence presented raised an issue regarding the intentional tort exception to the general rule of employer immunity under the Workers' Compensation Law.
We, therefore, reverse the trial court's judgment, granting summary judgment in favor of Stout. Finding, however, that additional evidence may be presented regarding this issue, we remand for further proceedings in accordance with law, not limited to or excluding the filing of a motion for summary judgment by appellants. *27
3. That an employee's remedy under the Workers' Compensation Act is not exclusive when the injuries in question have been sustained as a result of an employer's intentional tort.
4. That the trial court erred in granting summary judgment in favor of Stout for the reason that the evidence presented established the applicability of the dual-capacity exception to employer immunity under the Workers' Compensation Law and that appellants are, therefore, entitled to judgment as a matter of law on the issue of Stout's liability under the dual-capacity doctrine.
We, therefore, reverse the trial court's judgment, granting summary judgment in favor of Stout, and, in accordance with App. R. 12(B), enter judgment in favor of appellants on the issue of Stout's liability in its dual capacity. See Houk v. Ross, supra. We further remand for further proceedings in accordance with law as to the issue of damages.
On consideration whereof, judgment of the Lucas County Court of Common Pleas is reversed and this cause is remanded to the Lucas County Court of Common Pleas for further proceedings in accordance with law and not inconsistent with this opinion.
Judgment reversed and cause remanded.
RESNICK, J., concurs.
CONNORS, P.J., concurs in part and dissents in part.
Dissenting Opinion
I concur with the second paragraph of the syllabus and agree that an issue of fact exists as to whether Stout committed an intentional tort. As to the first and third paragraphs of the syllabus, I respectfully dissent.
In the first paragraph of the syllabus, the majority holds that the owner of property who engages the services of an independent contractor may be held liable under R.C.
I would follow the decision in Wellman v. East Ohio Gas Co.
(1953),
"1. 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.
"2. One who engages an independent contractor to do work for him ordinarily owes no duty of protection to the employees of such contractor, in connection with the execution of the work, who proceeds therewith knowing and appreciating that there is a condition of danger surrounding its performance."
See, also, Millhouse v. General Tire Rubber Co. (1983),
The holding in Wellman appears to be controlling in the instant case. Further, the record in the case at bar indicates that Mid-States did not actively participate or supervise the activities of Stout, even though a contract between the parties permitted Mid-States to do so, but merely checked on the progress *28
of the construction in order to determine when Stout was entitled to compensation under the construction contract. Accordingly, I would find Hirschbach v. Cincinnati Gas Elec. Co. (1983),
In the third paragraph of the syllabus, the majority enters judgment, as a matter of law, in favor of appellants upon finding that Stout occupied a dual capacity with regard to appellants. I dissent, as I find that, at the very least, an issue of fact exists as to whether such a dual capacity existed.
The case law fails to support the majority's holding that where an employer manufactures a piece of equipment solely for use by its employees it will be held liable under the dual capacity doctrine if it manufactures the general class of equipment for sale to the public. In Knous v. Ridge Machine Co. (1979),
"1. An employer is not considered to be engaged in the sale of die casting machines to the general public where the machines were manufactured by the employer for use in the production of die castings by the employer in the principal course of the employer's business and where a limited number of said machines were supplied to other corporate entities under agreements limiting the use and resale of the machines.
"2. An employer who manufactures or designs and assembles a machine for the sole use of its own employees in its own production operations is not subject to a manufacturer's liability when his own employee is injured while repairing or using that machine.
"3. If the hazard arose out of the status of the employee during his relationship to his employer, rather than a hazard to which the employee was subjected as a member of the general public, the dual capacity doctrine does not apply. On the other hand, if the hazard to the employee arose out of his status as a member of the general public, the fact that he, incidentally, is an employee of the one creating the hazard should not bar the application of the dual capacity doctrine.
"4. Where an employee is injured in repairing a die casting machine, manufactured by the employer, and where the manufacturing of the machine is auxiliary to the principal business of producing die castings, the injuries arose out of the employer-employee relationship, rather than from a user-manufacturer relationship."
In Simpkins v. Delco Moraine Div. (1981),
"1. Where an employee brings an action against his employer for injuries sustained in his employment as the result of an allegedly defective hoist, which was neither designed nor manufactured for use by the public but was intended solely for use by the company's employees, the dual capacity doctrine is not applicable and the employee's remedy against his employer is limited exclusively to workers' compensation benefits."
The record in the instant case indicates that the hoist involved in the accident was not designed or manufactured for sale to the general public but was fabricated solely for use by Stout's employees. The record indicates that Stout did manufacture and sell one-man service elevators which were not used in construction but were permanently installed in grain silos. Under these facts, I find that Knous, supra, and Simpkins,supra, preclude application of the dual capacity doctrine or, at least, create an issue of fact as to whether the hoist involved herein was manufactured and *29 sold to the general public. Accordingly, I dissent from the decision of the majority in this regard.
Coming now to the specific assignments of alleged error, and being cognizant of the fact that this case comes to us on summary judgments from the trial court, I find the appellants' first assignment of error not well-taken, and the second assignment of error well-taken, for the reasons set forth above.
