Morris v. Rorick , 2019 Ohio 3946 ( 2019 )

[Cite as Morris v. Rorick, 2019-Ohio-3946.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
CHARLES C. MORRIS JUDGES:
Hon. William B. Hoffman, P.J
Plaintiff-Appellant Hon. John W. Wise, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. 2018CA00167
COLLIER CONSTRUCTION
Defendant-Appellee O P I N IO N
CHARACTER OF PROCEEDINGS: Appeal from the Stark County Court of
Common Pleas, Case No. 2017-CV-
01125
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: September 26, 2019
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
LARRY V. SLAGLE MARIA PLACANICA
2859 Aaronwood Ave., N.E. 50 South Main Street
Massillon, Ohio 44646 Akron, Ohio 44308
KATHLEEN O. TATARSKY
236 Third Street, S.W.
Suite 100 Carnegie Building
Canton, Ohio 44702
Stark County, Case No. 2018CA00167 2
Hoffman, P.J.
{¶1} Appellant Charles C. Morris appeals the summary judgment entered by the
Stark County Common Pleas Court dismissing his negligence and premises liability action
against Appellee Collier Construction Co.
STATEMENT OF THE FACTS AND CASE
{¶2} On December 11, 2013, Appellant was employed as a drywall hanger for
Eric Griggy dba Custom Drywall, during construction of a home being built for Timothy
and Tiffany Barta. Appellee was the general contractor on the project.
{¶3} Appellant arrived at the jobsite around 8:00 a.m. on December 11, 2013,
intending to finish drywall on the walls and ceiling in the garage. Specifically, Appellant
intended to tape on the bead, a process whereby he used a paper and vinyl substance to
cover the corners before applying compound. Appellant began his work in the garage,
working from the back to the front. He used scaffolding where needed to reach the area
in which he was working.
{¶4} Appellant took at least two smoke breaks during the day. The first time, he
unlocked the left garage door in order to lift it to exit the garage. He left the door unlocked.
While working, he saw someone enter and exit the garage four or five times. He believed
it to be one of the people working on the stucco on the exterior of the garage.
{¶5} Also on December 11, 2013, Joseph Dagenhard was working for Rorick’s
Inc., a subcontractor hired to do stucco work on the exterior of the Barta residence.
Materials used by Rorick were stored inside the garage. Dagenhard raised the garage
door while Appellant was working on scaffolding inside the front of the garage. Appellant
was knocked off the scaffolding and onto an extension ladder on the floor of the garage,
fracturing his right foot and ankle.
Stark County, Case No. 2018CA00167 3
{¶6} Appellant filed the instant action for negligence and premises liability
against Rorick, the Bartas, Griggy, Dagenhard, and Appellee on May 30, 2017. Appellee
filed a motion for summary judgment on December 22, 2017, claiming as the general
contractor, it owed no duty to Appellant, who was the employee of a subcontractor. The
trial court granted the motion on September 20, 2018. Appellant settled with or dismissed
the remaining defendants, and filed a motion to reconsider the summary judgment in favor
of Appellee. The trial court denied the motion to reconsider and entered a final appealable
order dismissing the action against Appellee.
{¶7} It is from the October 25, 2018 judgment Appellant prosecutes this appeal,
assigning as error:
I. THE TRIAL COURT ERRED WHEN IT GRANTED COLLIER
CONSTRUCTION’S MOTION FOR SUMMARY JUDGMENT AND
CONCLUDED AS A MATTER OF LAW THAT MORRIS COULD NOT
RECOVER FROM COLLIER CONSTRUCTION FOR THE INJURIES HE
SUSTAINED ON THE JOB SITE.
II. THE TRIAL COURT ERRED WHEN IT GRANTED COLLIER
CONSTRUCTION’S MOTION FOR SUMMARY JUDGMENT AND DENIED
MORRIS’ MOTION TO RECONSIDER. A GENUINE ISSUE OF
MATERIAL FACT EXISTED AS TO WHETHER A DUTY OF CARE
RESTED WITH THE GENERAL CONTRACTOR COLLIER
CONSTRUCTION UNDER THE AIA CONTRACT.
Stark County, Case No. 2018CA00167 4
{¶8} Summary judgment proceedings present the appellate court with the unique
opportunity of reviewing the evidence in the same manner as the trial court. Smiddy v.
The Wedding Party, Inc., 30 Ohio St. 3d 35, 36 (1987). As such, we must refer to Civ. R.
56(C) which provides in pertinent part:
Summary judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, written admissions, affidavits,
transcripts of evidence, and written stipulations of fact, if any, timely filed in
the action, show that there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter of law. No evidence
or stipulation may be considered except as stated in this rule. A summary
judgment shall not be rendered unless it appears from the evidence or
stipulation, and only from the evidence or stipulation, that reasonable minds
can 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 or stipulation construed most strongly in the
party’s favor.
{¶9} Pursuant to the above rule, a trial court may not enter summary judgment if
it appears a material fact is genuinely disputed. The party moving for summary judgment
bears the initial burden of informing the trial court of the basis for its motion and identifying
those portions of the record which demonstrate the absence of a genuine issue of material
fact. The moving party may not make a conclusory assertion that the non-moving party
Stark County, Case No. 2018CA00167 5
has no evidence to prove its case. The moving party must specifically point to some
evidence which demonstrates the moving party cannot support its claim. If the moving
party satisfies this requirement, the burden shifts to the non-moving party to set forth
specific facts demonstrating there is a genuine issue of material fact for trial. Vahila v.
Hall, 77 Ohio St. 3d 421, 429, 1997-Ohio-259, citing Dresher v. Burt, 75 Ohio St. 3d 280,
1996-Ohio-107.
{¶10} It is under this standard we review Appellant’s two assignments of error.
I.
{¶11} In his first assignment of error, Appellant argues the court erred in finding
Appellee owed no duty to him pursuant to principles of common law negligence and R.C.
4101.11 and .12, which provide:
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.
{¶12} R.C. 4101.11.
Stark County, Case No. 2018CA00167 6
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.
{¶13} R.C. 4101.12.
{¶14} The duty owed to frequenters, including employees of other companies, is
no more than a codification of the common-law duty owed by an owner or occupier of
premises to invitees, requiring the premises be kept in a reasonably safe condition, and
warning be given of dangers of which he has knowledge. See, e.g., Westwood v. Thrifty
Boy, 29 Ohio St. 2d 84, 58 O.O.2d 154, 278 N.E.2d 673, paragraph one of the syllabus
(1972). The duties set forth in R.C. 4101.11 and 4101.12 generally do not apply, however,
to a general contractor’s duty to an independent contractor, when the independent
contractor engages in inherently dangerous work. Frost v. Dayton Power & Light Co.,
138 Ohio App. 3d 182, 190, 740 N.E.2d 734, 740 (4th Dist. Adams 2000), amended, 4th
Dist. Adams No. 98 CA 6692000 WL 1029141.
{¶15} Appellant first argues he was not injured while participating in an inherently
dangerous activity. We disagree.
Stark County, Case No. 2018CA00167 7
{¶16} In Bond v. Howard Corp., 72 Ohio St. 3d 332, 1995-Ohio-81, 650 N.E.2d
416 (1995), the plaintiff, an independent contractor's employee, was constructing a wall
at a construction site. The materials the plaintiff needed to perform his work were located
near an unguarded opening on the second floor of the site. As the plaintiff was gathering
some materials, he fell through the unguarded opening and sustained severe injuries.
The Ohio Supreme Court applied the inherent danger exception, although arguably falling
through an unguarded opening is not an inherent danger of constructing a wall. The Bond
court held a construction site is inherently a dangerous setting. Id. The Bond decision
implies in determining whether a task involves inherent dangers, the court should not
construe “inherent dangers” narrowly, but rather should examine the circumstances
surrounding the work activities as well as the work itself to determine whether the
performance of a task contains elements of real or potential danger. Frost, supra, at 195,
740 N.E.2d at 744.
{¶17} Appellant argues he was not injured by an inherently dangerous activity, but
rather by Dagenhard’s failure to exercise “any care at all” when he knew Appellant was
applying drywall on scaffolding at the front of the garage. Brief of Appellant, p. 11.
However, as recognized by the Ohio Supreme Court in Bond, a construction site is an
inherently dangerous setting. We find working on scaffolding on a construction site is an
inherently dangerous activity, and the trial court did not err in applying the inherent danger
exception in the instant case.
{¶18} Ordinarily, a general contractor who engages the services of an
independent contractor owes no duty of care to the employees of the independent
contractor. Sopkovich v. Ohio Edison Co., 81 Ohio St. 3d 628, 693 N.E.2d 233, 1998–
Stark County, Case No. 2018CA00167 8
Ohio–341 (1998). However, when a general contractor engages the services of an
independent sub-contractor and “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, [the general contractor] can be held responsible for
the injury or death of an employee of the independent contractor.” Hirschbach v.
Cincinnati Gas & Elec. Co., 6 Ohio St. 3d 206, 452 N.E.2d 326, syllabus (1983). “‘[A]ctive
participation’ includes situations in which a property owner exercises control over the work
activities of the independent contractor, and also includes situations in which a property
owner exercises control over a critical aspect of the employee's place of employment or
‘working environment.’” Sopkovich, supra at 635, 693 N.E.2d 233.
{¶19} The cases cited by Appellant in support of his argument Appellee owed him
a duty of care all apply the exception in which a general contractor exercised control over
a critical aspect of the place of employment or working environment, rather than the
general contractor exercising control over the work activities of the independent
contractor.
{¶20} In Chlopecki v. Gilbane, 8th Dist. Cuyahoga No. 98476, 2012-Ohio-6142,
the plaintiff, an employee of a subcontractor, fell from a scaffolding when the wheel of the
scaffolding fell into a hole in the floor which the general contractor had covered with
plywood, but failed to properly fasten the plywood. In finding a duty of care existed, the
Court of Appeals for the Eighth District held:
Gilbane did, however, exercise control over a “critical variable” of the
workplace—the placement of the plywood boards covering the open holes
Stark County, Case No. 2018CA00167 9
on the floor. Gilbane understood that the placement of the boards posed a
safety hazard. It specifically wrote a warning on the plywood and conducted
safety meetings at which it warned employees that it had placed plywood
over the holes in the floor. Having undertaken to place the plywood, Gilbane
was responsible for any negligence in how the plywood was placed. It
admittedly chose not to fasten the plywood to the floor with screws lest the
floor itself be damaged. Reasonable minds could differ on whether Gilbane
exercised reasonable care in choosing not to fasten the plywood to the floor
and whether it exercised reasonable care to ensure that the plywood was
sufficiently anchored to the ground to prevent it from moving.
{¶21} Id. at ¶ 11 (emphasis added).
{¶22} In Barnett v. Beazer Homes Invests., L.L.C., 12th Dist. Butler No. CA2007-
11-276, 180 Ohio App. 3d 272, 2008-Ohio-6756, 905 N.E.2d 226, Barnett was an
employee of a subcontractor installing gutters on a house, and was injured when he came
into contact with high voltage electric wires. Beazer was the general contractor on the
site. Three weeks prior to Barnett’s injury, a siding company was working on the house
when a ladder fell into the wires, causing an outage to a nearby trucking company. The
electric company issued a safety warning to Beazer, and told Beazer no further work
could be done on the side of the house near the wires without first contacting the electric
company to have the lines de-energized. Beazer failed to have the line de-energized
before Barnett began working on the side of the house, and scheduled Barnett’s employer
to install the gutters without informing them the line would need to be de-energized before
Stark County, Case No. 2018CA00167 10
they could start. The court found Beazer retained control over de-energizing the line, a
critical variable in Barnett’s employment. Id. at ¶25.
{¶23} In Cefaratti v. Mason Structural Steel Co., 136 Ohio App. 3d 363, 365, 736
N.E.2d 913, 914 (8th Dist. Cuyahoga 1999), Cefaratti, an employee of a subcontractor,
fell from a stairwell while installing pipes at a building construction site. Prior to the fall,
the general contractor had a guard rail on the stairwell, but had removed the rail without
warning the workers to avoid the area. The court held there was “a genuine issue of
material fact as to whether appellee is responsible for the absence of guard railing and
whether the absence of guard railing constituted a critical variable in the workplace.” Id.
at 366, 736 N.E.2d at 914.
{¶24} We find the instant case distinguishable from the cases relied upon by
Appellant. In the cases cited above, the general contractor took affirmative control over
a variable in the workplace, which ultimately caused injury to the employee of the
subcontractor, i.e., failing to properly secure plywood over an opening in the floor, failing
to have electrical wires de-energized despite a prior incident and warning from the electric
company, placing a guardrail but later removing the rail without notifying the workers.
Appellant’s claim is premised upon Appellee’s failure to place warning signs on the
garage door. However, there is no evidence Appellee had exercised control over the
opening and closing of the garage door prior to the day on which Appellant was injured.
We find the trial court did not err in finding Appellee owed no duty of care to Appellant.
{¶25} Finally, Appellant argues the court did not consider the affidavit of Jeffrey
B. Jones, an expert in the field of construction management, opining Appellee was
negligent in several respects, and such negligence was a proximate cause of the injuries
Stark County, Case No. 2018CA00167 11
to Appellant. However, the trial court found as a matter of law Appellee owed no duty of
care to Appellant, and therefore did not reach issues of negligence and proximate cause
set forth in the Jones affidavit.
{¶26} The first assignment of error is overruled.
II.
{¶27} In his second assignment of error, Appellant argues Appellee assumed a
contractual duty of care by virtue of a contract it entered with the Bartas.
{¶28} Paragraph 10.2 of AIA Document A201-2007 provides:
§ 10.2.1 The Contractor shall take reasonable precautions for safety
of, and shall provide reasonable protection to prevent damage, injury or loss
to
1. employees on the Work [site] and other persons who may be
affected thereby;
§ 10.2.2 The Contractor shall comply with and give notices required
by applicable laws, statutes, ordinances, codes, rules and regulations, and
lawful orders of public authorities bearing on safety of persons or property
or their protection from damage, injury or loss.
§ 10.2.3 The Contractor shall erect and maintain, as required by
existing conditions and performance of the Contract, reasonable
safeguards for safety and protection, including posting danger signs and
Stark County, Case No. 2018CA00167 12
other warnings against hazards, promulgating safety regulations and
notifying owners and user of adjacent sites and utilities.
{¶29} While a general contractor may explicitly assume responsibility for workers'
safety, many contract provisions between general contractors and subcontractors do not
give rise to such assumed responsibility. Nicholson v. Turner/Cargile, 107 Ohio App. 3d
797, 805, 669 N.E.2d 529, 534–35 (10th Dist. Franklin 1995). Contract provisions which
do not create such a duty include provisions: (1) assigning control over safety procedures
to the general contractor, Cafferkey v. Turner Const. Co., 21 Ohio St. 3d 110, 112–13,
488 N.E.2d 189, 192 (1986); (2) retaining a general contractor's right to review details
and construction; (3) requiring the work to be finished under an architect's and general
engineer's direction and to their satisfaction, Gilday v. S & R Playhouse Realty Co. (June
14, 1990), Cuyahoga App. No. 57022, unreported, 1990 WL 82301 (June 14, 1990); (4)
promising a general contractor will have a representative at the job site; (5) requiring a
general contractor specify the work to be done by the subcontractor and specifying the
items the general contractor will inspect; (6) requiring a subcontractor to replace
personnel found to be incompetent; and (7) promising material supplied by the
subcontractor will meet specifications. Mount v. Columbus & S. Ohio Elec. Co. (1987), 39
Ohio App. 3d 1, 528 N.E.2d 1262, paragraph four of the syllabus (1987). Nicholson, supra.
{¶30} Contract language which is nothing more than “boilerplate” safety language
common to all construction contracts does not create a duty from the general contractor
to employees of a subcontractor. Cafferkey, supra, at 113. See, also, Bond v. Howard
Corp., 72 Ohio St. 3d 332, 1995-Ohio-81, 650 N.E.2d 416 (1995) (“we reject appellants'
Stark County, Case No. 2018CA00167 13
assertions that various contractual provisions involving Howard created a duty of care
extending from Howard to employees of Valentine. The contractual provisions relied upon
by appellants simply demonstrate that Howard retained general supervisory capacity over
the construction project and, in particular, that it retained control over safety policies and
procedures at the site.”).
{¶31} We find the AIA contract is a boilerplate contract, containing boilerplate
safety language insufficient to create a specific duty Appellee owed Appellant. The
contract assigns control over safety procedures to the general contractor, which pursuant
to the case law cited above is insufficient to give rise to a legal duty.
{¶32} Further, unlike the contract in Cafferkey, the contract at issue in the instant
case is not between the general contractor and the subcontractor, but rather is between
the general contractor and the homeowner. The record does not indicate or suggest
Appellant was an intended third party beneficiary of the contract between the Bartas and
Appellee. We find the court did not err in failing to find the AIA contract created a duty of
care extending from Appellee to Appellant.
Stark County, Case No. 2018CA00167 14
{¶33} The second assignment of error is overruled.
{¶34} The judgment of the Stark County Common Pleas Court is affirmed.
By: Hoffman, P.J.
Wise, J. and
Baldwin, J. concur