Kucharski v. Natl. Eng. & Contracting Co.
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10 OPINIONS OF THE SUPREME COURT OF OHIO The full texts of the opinions of the Supreme Court of Ohio are being pursuant transmitted electronically beginning May 27, to a pilot project implemented by Chief Justice 1992, Thomas J. Moyer. Please Office of Kobalka, call any errors to the attention of the the Supreme Court of Ohio. Reporter, Assistant. Tel.: or Deborah Reporter s Attention: J. Barrett, Walter S. Administrative (614) 466-4961; in Ohio 1-800-826-9010. Your comments on this pilot project are also welcome. NOTE: full Corrections may be made by the Supreme Court to texts of the opinions electronically to the public. check the bound volumes of after they have been the released The reader is therefore advised to Ohio St.3d published by West Publishing Company for the final versions of these opinions. The advance and page sheets numbers to Ohio St.3d will also contain the where the opinions will be found volume in the bound volumes of the Ohio Official Reports. Kucharski, Appellant, v. National Engineering & Contracting Company, Appellee. [Cite as Kucharski v. Natl. Eng. & Contracting Co. (1994), ___ Ohio St.3d ___.] Torts R.C. 4101.13 may not be used as the basis of a negligence suit by an employee of one independent contractor against second site, independent contractor working on a common a building when the parties lack both a contractual relationship and control of each other s employees. An independent contractor, who lacks a contractual relationship with a second independent contractor, owes no affirmative duty beyond that of ordinary care to the employees of the does not second contractor where the first contractor supervise or actively participate in the second contractor s work. St.3d (Cafferkey 110, 21 v. Turner Constr. Co. OBR 416, 488 N.E.2d [1986], 189, 21 Ohio approved and followed.) (No. 93-225 Submitted February 2, 1994 Decided June 15, 1994.) Appeal from the Court of Appeals for Cuyahoga County, No. 62273. Appellee National Engineering & Contracting Company ( National ) is a general construction firm hired by the city North of Royalton to build a new settling tank for North Royalton s wastewater treatment plant. As a primary contractor, National reported directly to the city through the engineering design firm on the project, Finkbeiner, Pettis & Strout, Ltd. ( Finkbeiner ). Appellant, Thomas G. Kucharski, is an electrician employed by Precision Electric, Inc. ( Precision ). Precision was hired to perform electrical work on the North Royalton project and was also a primary contractor reporting directly to Finkbeiner. The settling tank that National constructed is a large ground concrete structure approximately fourteen feet ranging and tank from twelve to seventeen feet deep. rises about six feet above the ground. It is open wide and on top Along one end of the National constructed a large concrete deck, flush with top, that stretched out over the opening. in- In order to build the the deck, National erected a scaffold to support the temporary wooden forms into which the concrete for the deck would be poured. scaffold was also erected far enough into the tank to support The a temporary pour wooden platform from which National s employees could and finish the concrete deck. Because the back edge of this platform extended out over the tank, National also installed wooden guardrails. When the concrete deck was finished, the scaffolding platform were removed by National s employees on April 21, and 1988, at the direction of National, in order to perform further work on the tank. On and May 6, 1988, representatives from Finkbeiner, National Precision issues. held their weekly meeting to discuss contracting In order to coordinate the scheduling of certain tasks between National and other subcontractors, it was determined that Precision needed to perform its electrical installation on the new settling tank deck between May 6 and May 24, 1988. Four days performing elevated off in tripped the later, over some Earlier inspected the he 10, 1988, Kucharski, the tank A fitting he was trying to planks bend the tank, that day, Kucharski and his supervisor Kucharski s supervisor the broke where into work area. and fell while from hand and caused him to stumble backward, himself. that May electrical work, fell into concrete deck. his on he injuring had had observed there was no safety railing, but because the deck was large considered required Kucharski the it safe and did not think the working use agreed. of a safety belt. National did not The record supervise conditions reflects or that actively participate in the work to be accomplished by Precision. National subsequently had permanent around the settling tank. guardrails installed Kucharski filed this negligence action for compensatory and punitive damages alleging that platform and in the Cuyahoga County Common railing, it removed a Court, temporary wooden device, when National disassembled the Pleas thereby safety violating R.C. 4101.13. Following Kucharski s case in chief, National moved directed verdict. punitive damages, The trial court granted but denied it as to the the for as motion negligence a to claim. Although the jury awarded Kucharski $550,000 in damages, it found him reduced twenty percent negligent. Thus, Kucharski s award to $440,000. the The trial also trial court court denied National s motion for judgment notwithstanding the verdict or, in the alternative, for a new trial, and refused to subtract also collateral benefits from the award. determine The trial denied Kucharski s motion for relief from judgment punitive damages ruling. The that motions for verdict. it erred as a matter of law in denying directed verdict and judgment The appeals court on the Both parties appealed. court of appeals reversed the trial court s holding and court noted first decision, National s notwithstanding the that had Kucharski conceded that R.C. 4101.11 and 4101.12 did not apply to the facts of this case. It agreed and concluded that National could not properly be found liable under those statutes because of the lack of a contractual relationship between the parties, the lack participation by National in Kucharski s work, and and inherent nature of the risk. the of obvious The court of appeals then went on to hold that National cannot be liable to Kucharski under R.C. 4101.13 because National did not remove a safeguard furnished for use on the concrete deck that Kucharski fell off of. The cause is now before this court pursuant to the allowance of a motion to certify the record. __________________ Endress & Endress Co., L.P.A., Richard R. Endress and Jeffrey C. Endress, for appellant. Arter & Hadden and Irene C. Keyse-Walker, for appellee. Schottenstein, Zox & Dunn and Roger L. Sabo, urging affirmance for amicus curiae, Ohio Contractors Association. Stewart Jaffy & Associates Co., L.P.A., Stewart R. Jaffy and Marc J. Jaffy, urging reversal for amicus curiae, Ohio AFL-CIO. __________________ Wright, J. is The narrow issue we will decide in this matter whether R.C. 4101.13 may be used as the basis of a negligence suit by an employee of one independent contractor against second independent contractor working on a common building a site, when the parties lack both a contractual relationship and control of each other s employees. We hold that it may not. Kucharski argues that because National employees removed the temporary guardrails, National may properly be found liable negligence pursuant to R.C. 4101.13. for This argument has no merit. R.C. 4101.13 states: No carry off employee shall remove, displace, damage, destroy, any safety device or safeguard furnished or or provided for use in any employment or place of employment, or interfere in any way with the use thereof by any other person. No employee shall interfere with the use of any method or process adopted for the protection of any employee in such employment or place of employment, or frequenter of such place of employment, or fail to follow and necessary obey to orders and to do every other thing reasonably protect the life, health, safety, and such employees and frequenters. welfare of (Emphasis added.) R.C. 4101.13 and its companion provisions, R.C. 4101.111 and 4101.12,2 are commonly referred to as the frequenter statutes. Originally enacted to benefit employees, these statutes are no more than a codification of the common-law duty owed by the owner or occupier of premises to business invitees to keep his premises in a reasonably safe condition and to give warnings of latent or concealed perils of which he has, or should have, knowledge. Westwood v. Thrifty Boy Super Markets, Inc. (1972), 29 Ohio St.2d 84, 86, 58 O.O.2d 154, 156, 278 N.E.2d 673, 675. The subsequent passage of the Ohio Workers Compensation Act, which covered employers from damage suits brought by employees injured on the job, rendered these statutes largely obsolete. Co. v. Tomlinson (C.A.6, 1956), 229 F.2d 873, 879. to protected Ford Motor They continue be used, however, by injured employees of subcontractors who seek damages, in addition to workers compensation benefits, from the property employers, owners, or contractors in privity who fail to keep the property safe from with their hazards for frequenters. We owes defined exactly what duty of care a general to its (1986), 21 Cafferkey lower subcontractors in Cafferkey v. Turner Constr. Ohio case two contractor St.3d 110, 21 OBR 416, 488 involved the decision of the N.E.2d 189. The subcontractor employees into a two-hundred-foot-deep caisson despite an earlier detection of methane gas there, to with cutting torch a portion of a twisted metal casing. a Co. burn to hole, off The general contractor, which retained supervisory authority over its subcontractors, decision. was An not informed about the subcontractor s explosion occurred in the hole when employees struck a flint to light his torch. one Both were burned and later died as a result of their injuries. grant of summary contractor, this judgment in favor of court held that a of the severely Affirming a defendant general general contractor actively participate in a subcontractor s work before it susceptible to subcontractor s employees dangerous work. to the liability for who injuries were engaged by in Cafferkey inherently virtue the services participates 326. of in of its Id. at syllabus. decision is supported by Hirschbach Cincinnati Gas & Elec. Co. (1983), 6 Ohio St.3d 206, 6 N.E.2d the A general contractor does not owe a duty of care supervisory capacity. 452 must becomes sustained employees of a subcontractor merely by The the OBR In Hirschbach we held that [o]ne who an independent contractor, and 259, engages who the job operation performed by such v. actually contractor and thereby fails to eliminate a hazard which he, in the exercise of for ordinary care, could have eliminated, can be held responsible the injury contractor. Wellman 27, 113 or death (Emphasis of an employee added.) Id. at of the independent syllabus. See, v. East Ohio Gas Co. (1953), 160 Ohio St. 103, N.E.2d 629, and Davis v. Charles Shutrump & also, 51 O.O. Sons Co. (1942), 140 Ohio St. 89, 23 O.O. 299, 42 N.E.2d 663. We find the preceding authority applicable to the case under consideration today. of an question Although Hirschbach was based on the duties employer found in R.C. 4101.11 and 4101.12, there that it is appropriate to extend that analysis is to no the duties of an contractor employee under R.C. 4101.13. If owes no duty of care to a subcontractor a general pursuant to R.C. 4101.11 and 4101.12 because it does not actively participate in the subcontractor s work, it follows then that contractor general owes no duty of care to the subcontractor under 4101.13, which satisfied that engaged the in prescribes when the duties two of employees. R.C. are contractors or more independent We are work on the same premises, it is the of each in contractor, duty ordinary and prosecuting its work, to use reasonable care not to cause injuries to the employees of another contractor. An independent contractor who lacks relationship with a second independent a contractual contractor owes no affirmative duty beyond that of ordinary care to the employees of the second supervise contractor, or actively where the first contractor participate in the second does not contractor s work. Both National and Precision reported directly to Finkbeiner. There was no privity between National and Precision. coequals. National did not control, supervise participate in employees. Furthermore, Kucharski, along with They or any aspect of the work performed by his were actively Precision s supervisor, surveyed the concrete deck and determined it was large enough be safe. tank Kucharski admits that he was aware of the depth of the and the lack of guardrails on the deck. It was Kucharski s supervisor who decided Kucharski did not need to wear belt. noted As contrast, to above, Kucharski concurred in the National employees who performed work on the a safety view. By concrete deck after the scaffolding and railing were removed were required by National to wear safety equipment, including belts. Kucharski conceded that National owed no duty of care to him under R.C. 4101.11 and 4101.12. Therefore, in light of the preceding analysis, we find as a matter of law that National owed no duty of care to Kucharski and could not properly liable under R.C. 4101.13. and aware found National was not Kucharski s employer exercised no control over him. existed be No contractual relationship between the parties and Kucharski admitted that of the fall hazard. he was R.C. 4101.13 refers to the duties of employees, not the employer, and should not have been applied to this case. We hold, therefore, that the trial court erred as a matter of law when it denied National s motions for directed verdict and judgment notwithstanding the verdict. The appeals court was appeals is correct in reversing that decision. Accordingly, the judgment of the court of affirmed. Judgment affirmed. Moyer, C.J., A.W. Sweeney and Resnick, JJ., concur. Douglas and Pfeifer, JJ., dissent with opinion. Mahoney, J., dissents. Joseph E. Mahoney, J., of the Eleventh Appellate District, siting for F.E. Sweeney, J. FOOTNOTES: 1. R.C. 4101.11 states: Every employer shall furnish employment which is safe the employees engaged therein, shall place of employment which shall be safe for the employees therein and for frequenters and thereof, shall furnish and use furnish safety a for devices safeguards, shall adopt and use methods and processes, follow and obey orders, and prescribe hours of labor reasonably adequate to render such employment and place of employment safe, and shall do every other thing reasonably necessary to protect the life, health, safety, and welfare of such employees and frequenters. 2. R.C. 4101.12 states: No employer shall require, permit, or suffer any employee to go or be in any employment or place of employment which is not safe, use and no such employer shall fail to furnish, provide, safety orders devices and safeguards, or fail to obey or to adopt and use methods and and processes follow reasonably adequate to render such employment and place of employment No employer necessary such shall to fail to do every other thing protect the life, health, safety, and employees or frequenters. and safe. reasonably welfare of No such employer or other person shall construct, occupy, or maintain any place of employment that is not safe. Pfeifer, responding of the J., dissenting. The jury in this case, in to the jury interrogatories, found by a preponderance evidence Engineering & Contracting Company, was negligent and that its negligence was a proximate cause that the defendant, National of the plaintiff s injury. The majority too easily shrugs off those findings. The majority, while finding that National could not be held liable still well for violating R.C. 4101.13, does recognize that owed have instructed Evidence Kucharski the duty of ordinary care. found as was to that that duty was breached. ordinary care as well as to introduced that National had left National The jury may The jury was R.C. 4101.13. planks stacked near the edge of the concrete deck from which Kucharski Kucharski testified that he had tripped over those planks falling over the edge. The jury may well have National was negligent for having left the fell. before concluded planks that in that location. The jury interrogatories did not ask the jury to state they found addition negligent, to National negligent. R.C. and 4101.13 since Because there is by which National a could the jury did find negligence, why theory in be found this case should have been returned for retrial, at the very least. Douglas, J., concurs in the foregoing dissenting opinion.
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